McMillan v Coolah Home Base Pty Ltd - [2024] NSWCA 138 - NSWCA 2024 case summary — Zoe

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McMillan v Coolah Home Base Pty Ltd

[2024] NSWCA 138

Court of Appeal (NSW)|2024-03-19|Before: Ward P, Leeming JA, Stern JA

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Source facts

Court

Court of Appeal (NSW)

Decision date

2024-03-19

Before

Ward P, Leeming JA, Stern JA

Source

Original judgment source is linked above.

Judgment (54 paragraphs)

[1]

ASIC v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4 Barnes v Addy (1874) LR 9 Ch App 244 Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Coolah Home Base Pty Ltd v Tait [2022] NSWCATAP 324 Coolah Home Base Pty Ltd v Tait [2023] NSWCATAP 3 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Elders Trustee & Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Frazer v Walker [1967] 1 AC 569 Giasoumi v Hutton [1977] VR 294 Guest v Guest [2022] UKSC 27; [2023] 1 All ER 695 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 Jarvis v Swan Tours [1973] 1 All ER 71 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Jonval Builders Pty Ltd v Commissioner for Fair Trading (2020) 104 NSWLR 1; [2020] NSWCA 233 LPD Holdings (Aust) Pty Ltd v Phillips [2013] QSC 225 Lukaszewicz v Polish Club Ltd [2019] NSWSC 446 Mayer v Coe [1968] 2 NSWR 747 McMillan v Coolah Home Base Pty Ltd (No 4) [2022] NSWSC 584 McMillan v Coolah Home Base Pty Ltd (No 5) [2022] NSWSC 1589 McMillan v Coolah Home Base Pty Ltd [2023] NSWCA 172 Monroe Topple and Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; [2002] FCAFC 197 Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733 Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 Nawar v Newcrest Mining Ltd [2022] FCA 424 NSW Lotteries Corporation Pty Ltd v Kuzmanovski (2011) 195 FCR 234; [2011] FCAFC 106 Productivity Partners Pty Ltd (t/as Captain Cook College) v ACCC (2023) 297 FCR 180; [2023] FCAFC 54 Re Bacchus Distillery Pty Ltd (Administrators Appointed) [2014] VSC 111 Re Smith (2006) 58 ACSR 410; [2006] NSWSC 780 Scott v Port Hinchinbrook Services Ltd [2017] QSC; 320 FLR 46 Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Story v Advance Australia Bank (1993) 31 NSWLR 722 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 Tait v Coolah Home Base Pty Ltd [2021] NSWCATCD (5 July 2021) Taylor v Dickens [1998] 1 FLR (Eng) 806 Unique International College Pty Ltd v ACCC (2018) 266 FCR 631; [2018] FCAFC 155 Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459; [1985] HCA 68 White v Tomasel [2003] 2 Qd R 438 Texts Cited: ASIC's disclosure requirements in Regulatory Guide 67 Janice Gray et al, Property Law in New South Wales (LexisNexis, 5th ed 2022) Lockhart, The Law of Misleading or Deceptive Conduct (LexisNexis, 6th edn 2023) M Jebeile, 'Local Court Amendment (Company Title Home Unit Disputes) Act' 2013 (2013) 27(7) Australian Property Law Bulletin 144 Miller, Australian Competition and Consumer Law Annotated (Thomson Reuters, 46th edn 2024) The Encyclopaedic Australian Legal Dictionary (published by LexisNexis Australia) The Essential Guide to Mortgage Law in Australia (2013, 2nd ed, Lexis Nexis Australia) set out at [1.42] Category: Principal judgment Parties: Geoffrey Ian McMillan (First Appellant) David Arthur Darch (Second Appellant) Helen Dawn Waugh (former Third Appellant) Margaret Joy Vale (Fourth Appellant) Jill Cook (Fifth Appellant) Lee Marilyn Tait (Sixth Appellant) Jennifer Sue Axtel (Seventh Appellant) Sietske Elisabeth Brown (Eighth Appellant) James Terence James (Ninth Appellant) Neville John Kelly (Tenth Appellant) Susan Anne Kelly (Eleventh Appellant) Christine Margaret McMillan (Twelfth Appellant) Janne Marnie Robertson (Thirteenth Appellant) John Daniel Sheahan (Fourteenth Appellant) Richard Jim Squire (Fifteenth Appellant) Susan Janet Squire (Sixteenth Appellant) Leslie Townsend (Seventeenth Appellant) Allana Mary Townsend (Eighteenth Appellant) Coolah Home Base Pty Ltd (First Respondent) Coolah Tourist Park Pty Ltd (Second Respondent) Janet Marilyn Kelly (Third Respondent) Graeme George Booker (Fourth Respondent) Cameron Hamish Gray (former Fifth Respondent) Ronald Dean-Willcocks (former Sixth Respondent) Home Base Solutions Pty Ltd (Seventh Respondent) Representation: Counsel: Mr P Vogel (Solicitor) (Appellants) Mr AJ Macauley (Second, Third, Fourth and Seventh Respondents)

[4]

[This headnote is not to be read as part of the judgment] Commencing in 2012, the third and fourth respondents (Ms Kelly and Mr Booker (the directors)) established a "home base" for "grey nomads" (people who are retired or semi-retired and live for all or most of the time out of a caravan or motorhome) in Coolah in central western NSW. The directors incorporated the first respondent (CHB) to purchase and hold the caravan park land, and the seventh respondent (HBS) to operate the caravan park (the Park). The venture was set up as a company title arrangement, with residents buying a share in CHB entitling the holder the right exclusively to occupy a specific site or allotment in the Park. Some of those sites had cabins already erected on them. On others, shareholders themselves erected cabins. By 2016, disputes had arisen between certain of the appellants (residents at the Park) and the directors. In August 2019, while litigation was still ongoing between certain of the residents and the directors seeking access to documents of the company, CHB was placed into voluntary administration by the directors. CHB's creditors were the directors themselves along with CHB's professional advisors. The administration resulted in the unanimous approval by CHB's creditors of a deed of company arrangement prepared by the directors (the DOCA), pursuant to which the Park was sold to the second respondent (CTP), another company owned by the directors. CTP continued to own and operate the Park, and the appellants continued to occupy their sites, there were disputes as to ownership of the cabins and whether the appellants were required to enter into new site arrangements with CTP in order to remain at the Park. A suite of claims was brought by the appellants against CHB, CTP, the directors, HBS, and the administrators of CHB. The relief sought included declarations that the appellants had equitable ownership interests in their sites, orders rescinding the transfer of the Park to CTP, and compensation for alleged breaches of directors' duties and corporate oppression as well as for alleged unconscionable conduct, harassment and coercion. The primary judge dismissed most of the appellants' claims, but did find that certain conduct was oppressive. The only relief deemed appropriate was to permit the appellants the opportunity to seek an order for the winding up of CHB which relief was duly granted. CHB is now in the course of liquidation. Meanwhile the appellants secured relief in NCAT in that CTP is hold to be bound by the terms of the previous site arrangements between CHB and the appellants. The appellants appealed, alleging error in: the findings as to whether the appellants had been promised ownership of the land; the rejection of the contentions raised as to the sale of the Park to CTP; and the dismissal of the claims as to misleading or deceptive conduct, unconscionable conduct, and harassment and coercion. The administrators were originally parties to the appeal as respondents, but a settlement was reached between them and the appellants. The only active respondents were the directors and CTP. Held dismissing the appeal with costs (Ward P, Leeming JA, Stern JA): (1) There was no error in the primary judge's finding that the appellants were not promised ownership of the sites as land (Ward P at [285], Leeming JA at [480], Stern JA at [481]). In particular, the primary judge had correctly identified that the appellants did not seek relief which would overcome the practical problems posed by the need to subdivide the Park if the appellants sought specific performance of the alleged promise of ownership; further, none of the exceptions to indefeasibility had arisen (Ward P at [278], [313]; Leeming JA at [480]; Stern JA at [481]). Frazer v Walker [1967] 1 AC 569; Breskvar v Wall (1971) 126 CLR 376; Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 considered. (2) The primary judge did not err in finding that the sale of the Park did not constitute oppressive conduct, as it was not the directors that caused the sale but, rather, the administrators (who were not bound by the CHB Constitution), who recommended that CHB's creditors approve the Deed of Company Arrangement pursuant to which the Park was sold (Ward P at [307], Leeming JA at [480]; Stern JA at [481]). There was no error in the failure to order recission of the transfer of the Park, as the claim was not brought as a derivative suit on behalf of CHB, and it was not evident that CHB was capable of paying back the purchase price (Ward P at [308], Leeming JA at [480]; Stern JA at [481]). (3) Allegations of misleading or deceptive conduct based on representations must identify with particularity the representations said to have been made. There was no error in the primary judge addressing the claim by reference to the stated particulars (Ward P at [335], Leeming JA at [480]; Stern JA at [481]). There was no challenge to his Honour's findings that the appellants had not established reliance on the alleged representations, which were fatal to a claim for damages for misleading or deceptive conduct (Ward P at [343], Leeming JA at [480]; Stern JA at [481]). Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25; Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8 considered. (4) The years-long course of behaviour by the respondents (comprising several disparate aspects not directly connected with each other) could not be classified as a course of "conduct" for the purposes of s 21 of the Australian Consumer Law, nor could it be classified as a "system" of conduct under s 21(4)(b) (Ward P at [430], Leeming JA at [480]; Stern JA at [481]); nor was the allegation of unconscionable conduct in respect of each of the alleged acts made out (Ward P at [431]-[434], Leeming JA at [480]; Stern JA at [481]). ASIC v Kobelt (2019) 267 CLR 1; [2019] HCA 18; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461; [1983] HCA 14; ACCC v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40; ACCC v Lux Distributors Pty Ltd [2013] FCAFC 90; Unique International College Pty Ltd v ACCC (2018) 266 FCR 631; [2018] FCAFC 155; Productivity Partners Pty Ltd (t/as Captain Cook College) v ACCC (2023) 297 FCR 180; [2023] FCAFC 54 considered. (5) There was no error in the conclusion that the directors' (and the solicitors') correspondence regarding entry into new Residential Site Agreements and incorrect assertions as to the ownership of cabins after sale of the Park did not amount to harassment or coercion; nor was there error in the finding that, in any event, no damage was shown to have resulted from that correspondence (Ward P at [453], Leeming JA at [480]; Stern JA at [481]). (6) The primary judge did not err in refusing a separate hearing as to damages, nor in dismissing the appellants' contention that damages for disappointment and distress would have been in the order of $200,000 per plaintiff (Ward P at [476]-[477], Leeming JA at [480]; Stern JA at [481]). Separately, there was no merit to the complaint that the primary judge should have fashioned relief to give the practical outcome sought by the appellants, based on some kind of idiosyncratic notion of justice (Ward P at [476], Leeming JA at [480]; Stern JA at [481]).

[5]

JUDGMENT

WARD P: This appeal concerns a dispute between a number of residents (or in some cases former residents - see AT 54.35) of a caravan park in Coolah, New South Wales (the Park) on the one hand (the appellants) and, on the other hand, the former registered proprietor of the land on which the caravan park is located (the first respondent, Coolah Home Base Pty Ltd, now in liquidation, to which I will refer as CHB), the current registered proprietor of the land (the second respondent, Coolah Tourist Park Pty Ltd, to which I will refer as CTP), the two directors of those companies (Ms Janet Kelly and her partner, Mr Graeme Booker, the third and fourth respondents) and another company controlled by Ms Kelly and Mr Booker (Home Base Solutions Pty Ltd, to which I will refer as HBS), which held a management role at the Park.
Each of the appellants holds an A Class share in CHB, entitling the appellant, relevantly, to exclusive use and occupation of a particular allotment within the Park. In some cases, there was already a cabin on the shareholder's allotment; in other cases, the shareholder erected a cabin on the allotment.
When the appeal proceedings were commenced, there were two further respondents, Mr Cameron Gray and Mr Ronald Dean-Willcocks, those being the administrators of a Deed of Company Arrangement entered into after CHB went into voluntary administration in 2019 (the Administrators). The Court was informed that settlement was reached with those parties (leading to the filing of one of a number of amended notices of appeal) (see AT 2.37). Those respondents therefore played no role in the hearing of the appeal. Nor did CHB, which is in the course of being wound up pursuant to orders made by the primary judge on 8 July 2022 following delivery of reasons for judgment in this matter on 13 May 2022 (McMillan v Coolah Home Base Pty Ltd (No 4) [2022] NSWSC 584 (the principal judgment)). A submitting appearance was filed on behalf of CHB.
The only active respondents on the appeal therefore were the second to fourth and seventh respondents, to which I will refer collectively as the Kelly-Booker respondents. Where I refer only to Ms Kelly and Mr Booker, jointly, I will generally refer to them as the directors.
Apart from the order made for CHB to be wound up (Order 2) by way of remedy for the oppressive conduct that the primary judge found had occurred, the appellants' claims against CHB and the Kelly-Booker respondents were dismissed on 8 July 2022 (Order 4). The appellants' claims against the Administrators had earlier been dismissed (on 23 June 2022).
Costs orders were made on 22 November 2022 (McMillan v Coolah Home Base Pty Ltd (No 5) [2022] NSWSC 1589, to which I will refer as the costs judgment). The appellants only appeal from those costs orders if the appeal succeeds. A sum of $10,000 was paid into Court as security for the Kelly-Booker respondents' costs of the appeal following an order made by Mitchelmore JA (McMillan v Coolah Home Base Pty Ltd [2023] NSWCA 172).
At the commencement of the hearing of the appeal, the appellants sought leave to file a Third Amended Notice of Appeal. A notice of motion seeking that relief had been filed on 26 February 2024. The amendments in question were as to the relief sought if the appeal were to succeed (three additional orders being sought, namely Orders 3A, 3B and 3C - see below at [187]).
The Kelly-Booker respondents opposed the grant of leave for the filing of the Third Amended Notice of Appeal, essentially on the basis that the claims for relief the subject of the proposed amendments had no merit and could not succeed. They also pointed to the lack of explanation as to why the matters were only now sought to be raised and to the significant delay in propounding this latest notice of appeal. As to the question of delay, the Kelly-Booker respondents noted that substantial indulgence has already been afforded to the appellants in these proceedings, in particular as to the extension of time in which to file the Notice of Appeal (referring to Mitchelmore JA's judgment in this regard).
The appellants nevertheless maintained that the amendment should be allowed, citing Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [14] (per French CJ), on the basis that the amendments were necessary to determine the real question in controversy. The only explanation for the late application for further amendment to the notice of appeal was that the additional relief claimed by the proposed Orders 3A-3C had been omitted from the notice of appeal (an omission apparently not appreciated until the Kelly-Booker respondents in their submissions raised the issue that there were matters raised in the appeal for which no corresponding order was sought from the Court - see AT 2.44-47).
The appellants further argued that it would be open to the Court to grant the relief sought in the proposed additional orders even were leave for the requested amendment to the notice of appeal to be refused, maintaining that no prejudice would be occasioned to the Kelly-Booker respondents by the amendments.
In turn, in the event that such leave were to be granted, the Kelly-Booker respondents sought leave to rely on a Notice of Contention, on the basis that it arises in response to the proposed Order 3A (which seeks an order that CTP transfer the land back to CHB). Remarkably, given that the appellants were belatedly seeking an indulgence to amend their notice of appeal so as to include a claim for the very relief to which the Notice of Contention responds, the appellants opposed leave being given to the Kelly-Booker respondents to rely on the Notice of Contention. The appellants argued that if such leave were to be granted the point sought to be raised (indefeasibility of title) would not succeed on the basis that the appellants disavow any challenge to the indefeasibility of CTP's title to the land. The appellants maintain that they merely seek orders for CTP (i.e., the current registered proprietor) to transfer the land back to CHB (a company in liquidation) (a proposition that I deal with in due course).
After hearing short oral argument, the Court granted leave for the filing of both the Third Amended Notice of Appeal and the Notice of Contention by 4pm 18 March 2024. While the explanation by the appellants for their delay in seeking the amendment was hardly satisfactory, the amendments to the grounds of appeal in essence go simply to the proposed relief if the appeal were to succeed; and no relevant prejudice was identified by the Kelly-Booker respondents if that additional relief were articulated in the notice of appeal provided that they were permitted to rely on the Notice of Contention. The complaint by the appellants as to the application for leave to file the Notice of Contention was unmeritorious given that it arose out of a belated application on their part.
That said, from my review of JusticeLink, it does not appear that the appellants have filed the Third Amended Notice of Appeal. In those circumstances, either the appellants should be taken as having chosen not to exercise the grant of leave to amend (without notifying the Court of that position) or they have failed to comply with the direction that the amended document be filed by 4pm on 18 March 2024. Given that the appellants made submissions as to the additional relief sought in the amended document, it must be assumed that they have simply failed to comply with the direction as to filing. That non-compliance should be remedied by the appellants without further delay. Directions of the Court are not aspirational. They are orders compliance with which is expected.

[6]

Acquisition by CHB of the Park

The caravan park at Coolah (the Park) was purchased by CHB in April 2012 (see [3], [33] of the principal judgment). CHB was incorporated by Ms Kelly and Mr Booker for the purpose of the acquisition of that land. The primary judge noted that the directors' plan was "to offer grey nomads a permanent dwelling-place in or near a regional town, readily accessible by road, which would function as a home and to which they could return during breaks in their travels" (see principal judgment at [2]).
Relevantly, what was put in place was a "company title" arrangement (see [4] of the principal judgment) whereby the land was held by the company (CHB), the registered proprietor; and individuals who subscribed for A Class shares in CHB (either individually or jointly) had the right to use exclusively a designated "Allotment" within the Park (corresponding with their particular share number), together with the right to use, in conjunction with others, the common property within the Park (see cl 3.1(c) of Sch 2 of CHB's Constitution; [4], [48], [135], [147] of the principal judgment). "Allotment" is defined in the CHB constitution as meaning "a portion of land, including any buildings constructed thereon, and being one of the sites designated by numbers 1 to 60 inclusive in the plan set out in Schedule 4".
Clause 2.2 of the CHB Constitution provided that "Notwithstanding any other provision in this Constitution, any proposal to sell, subdivide, mortgage, charge or otherwise encumber (including lodging of a caveat) the land, the Building, or any part thereof, shall not be put into effect without with the prior written consent of 80% of Share Holders" (see [118] of the principal judgment). The appellants place emphasis on this "80% rule" as a basis for various of their grounds of appeal, as will be explained in due course.
The appellants contended unsuccessfully before the primary judge that what they had acquired was a legal interest in the respective portion of the land comprising their "Allotment"; a contention which they no longer press on appeal. What they also contended (which is the subject of various of their appeal grounds) was that it was represented to them by Ms Kelly and Mr Booker (and in promotional material by which the Allotments were marketed) that they would be acquiring legal title ("real estate security") to their Allotments.

[7]

Promotional material

The promotion of the Park to "grey nomads" commenced prior to settlement of the acquisition of the land by CHB in April 2012. Ms Kelly produced in evidence a PowerPoint presentation which she deposed was made at a CMCA (Campervan and Motorhome Club of Australia) Solo Network rally in Yarram, Victoria in March 2012. Ms Kelly deposed that "[w]e did two presentations of these slides at Yarram and another two at the CMCA's Sale Rally which is for all members, not just solo travellers". Ms Kelly deposed that the CMCA had approximately 70,000 members and that there were "about 800 solos in the Solos Network".
The appellants point to the following statements contained in the PowerPoint presentation slides: "You own the property"; "all allotments are sold on a square meterage basis - pre-settlement is $65" [a clear indication that the document was prepared prior to completion of the sale in April 2012]; "Buy a site and build your own cabin"; "large sites suitable for ensuites and/or storage sheds averaged $17,000"; "Deposit to hold discount - available for vacant land only".
However, it is relevant to note that there were a number of versions of the PowerPoint presentation slides, with some differences in their content. The date of those slides and other promotional material cannot be determined with precision. However, it is clear, from the content of some of the promotional materials, the approximate time at which they were created. For example, presentations that included a statement as to a discounted price before 22 April [2012] must logically have been before that date. There appear to be at least two versions of the slide show presentations used in around March 2012, the appellants quoting it seems from the latter; and a further version in late 2014/early 2015.
As to the difference in content, in some there is a statement that "you own the property" and in others the statement is that "you own your share of the property". This highlights the difficulty that arises in relation to the question of reliance on any representations contained in the material, given the uncertainty as to which version of the promotional material, if any, was seen or read by which of the appellants. The first of the appellants to acquire a share in CHB was Mr Sheahan on 26 March 2012, followed by Mr and Mrs Kelly. Clearly enough, when purchasing their respective shares they cannot have seen (or relied on) later versions of the promotional material that were not then in existence. Other appellants (such as Mr McMillan on 27 July 2014 and Mr Darch on 2 February 2015) could have seen later versions of the promotional material but they might perhaps have seen one of the earlier versions of that material.
A promotional pamphlet was prepared by Ms Kelly in March or April 2013, and apparently continued to be used by the directors to promote the Park in 2014, which referred to the venture or arrangement there being promoted as an "unique housing solution". In that document, there was a reference to two companies, the first of which was described as "The ownership company - Coolah Home Base Pty Ltd - [which] owns the property and issues shares to shareholders" (see principal judgment at [166]); the second being HBS, the management company. That pamphlet referred to people acquiring "an ASIC registered share in the real estate", which "share gives you…exclusive use of your chosen allotment". The last page of this document refers to purchasers getting shares in the company that owns the land. The document also contains statements that "You own a share of the land - a share in the whole park!" and that buying the "ASIC registered share in the real estate … gives you … "proportional ownership of the whole property"".
I interpose here to note that the first annual general meeting of CHB was held on 6 August 2013. At that meeting, Ms Kelly provided written detail as to the legal structure of CHB, including drawing attention to the fact that CHB was the "company [that] owns the property (the real estate)", being "the company in which you have shares".
The brochure used by the directors to promote the Park in 2014 also contained the following statements that: "Cabin and land ownership from under $90,000"; "The land is priced per square metre"; "Starting with blocks around $12,000"; and "Invest in real estate for future capital gain"; as well as references to "Real estate security".
Ms Kelly deposed that in 2015 they (the directors) advertised in Caravan World magazine and that they emailed two documents to people who enquired. The appellants note that those documents include statements that: "Coolah Home Base has homes available from $45,000 to $155,000 INCLUDING real estate security"; "You own a share in the entire property"; "Proportional ownership of the real estate - your area of land is shown on your Share Certificate plus you get an equal share of the communal property"; "You have an asset that you can on-sell"; reference to "Sites for sale" (or "Selling site and cabin for $135,000"); "That share gives you exclusive access to your allotment"; and that "You have real estate security".
The appellants also refer to other advertisements by CHB containing statements such as: "Where else can you buy a place to live for $65 per square metre. It is so affordable"; "[y]our investment is secure in real estate and legally protected"; "What sort of home base can I buy? From powered sites, starting at $7,020, to a cabin for $58,000. Site sizes vary but all sites are priced on $65 per square metre and a fair value is added for any building on it"; "Smaller blocks, 156 to 230 square metre sites, where you can build ensuites and/or storage sheds, range from $10,140 to $14,950"; "Large sites, 240 to 400 square metre sites overlooking the river, start at $17,550 to $26,000. You can build an ensuite and/or storage sheds on these blocks"; "affordable housing with share/real estate security"; "The following allotments are currently for sale by Management"; "You buy a share in the property that you like"; "An investment in real estate"; and "large home sites from $20,000 and cabins from $25,000".
The primary judge accepted that the promotional materials had a dual evidentiary significance (see principal judgment at [169]), namely that, to the extent that it could be inferred that they had been provided to the appellants, they were direct evidence of representations made to them; and they were also evidence of how the directors were promoting the venture at the time, and therefore indirect evidence of what it was likely that the directors had said in promoting the venture.
The purchases by the appellants in the present case occurred over a period from 26 March 2012 (Mr Sheahan) through to 13 March 2017 (Mr and Mrs Townsend) (see principal judgment at [155]). However, the majority of the appellants acquired their shares in the period from March 2012 to November 2014.
There was in evidence a document entitled the "CHB Dream Explained" which was prepared in around late 2015 (see principal judgment at [175]), after most of the appellants had acquired their shares. It was issued on CHB letterhead under Ms Kelly's signature. It was distributed to at least some of the shareholders of CHB. The document was signed by Ms Kelly but was drafted with the involvement of some of the appellants who were on the Shareholders' Advisory Group, including Mr McMillan (who had acquired his share in CHB in July 2014 and became the secretary of the Shareholders Advisory Group) (see 2/08/2021; T 415.7-11).
The CHB Dream Explained document stated that CHB was a "duly registered, tightly held private company that owns all of The Park" and went on to say that, under the "Commonwealth Corporations Act" [sic], the company "is treated as "Real Estate Company" that subdivides specified Allotments or Sites in The Park to individual Shareholders by way of "Company Title"". The document said that "This is the company that we, the Shareholders, own - this company owns the Park".
The document went on to explain the position of shareholders, including that each share was "tied to an individual Powered Site or Dwelling Allotment" (of which there were 62); that all shares in the company were owned by people "who own Sites or Allotments"; and that shareholders were entitled to "exclusive use and enjoyment" of their Site/Allotment - they own it by virtue of Company Title. The document stated that a shareholder "sells their Site/Allotment by selling their share in The Company"; and that a shareholder "owns their Site/Allotment plus what's on it, plus their proportion of the Park "common property"". The section explaining the position of shareholders concluded by stating that "Thus, the people who own the Sites/Allotments own the whole of the Park, there is no developer or investor behind the scenes seeking to maximise their return on investment".
The CHB Dream Explained document included a section explaining the Constitution of CHB (including reference to special clauses that stipulate that the Park can only be sold if agreed to by way of a Special Resolution at a General Meeting of the Company with an 80% majority, referring to this as the 80% Rule).
The CHB Dream Explained document included an answer to the question "What is Company Title?" as follows: Company Title is a two stage process whereby a company will own a parcel of real estate by way of Torrens Title; and the constitution and rules of the company establish how portions of the real estate are sub-divided between the company's shareholders. Strata Title was invented around 1970 to cater for the explosion of high-rise development in Sydney. Before Strata Title these developments were covered by Company Title, which still applies and is still in use today - Strata and Company Titles both have their advantages, it is a case of using the title system best suited to your needs.
The appellants place emphasis on a number of the statements contained in the CHB Dream Explained document referring to people owning their Sites or Allotments, including that they own their Site/Allotment "by virtue of Company Title" and the reference to the Constitution stipulating that the company is a "Real Estate Company" with the primary purpose of subdividing the Park by way of "Company Title". The appellants also note that the document provided the following questions and answers: "Do I get title to my site? Yes" and "Can I sell my Site? Yes". There were statements in the CHB Dream Explained document that "the constitution and rules of the company establish how portions of the real estate are sub-divided between the company's shareholders"; that "vacant Dwelling Allotments available for purchase direct from The Company"; and reference to "all shareholders of The Company are those who own Sites/Allotments".
Although the CHB Dream Explained document post-dates the acquisition by most of the appellants of their shares in CHB (and, as his Honour noted at [175], the last of the "sales" by CHB of shares, as opposed to on-sales of shares by existing shareholders), its evidentiary significance appears to have been as to the relevant parties' understanding of the arrangement by which shareholders acquired rights in relation to their Allotments. Although the document that Mr McMillan helped to prepare indicates a reasonable understanding by him of what is meant by company title, his evidence was that he did not know about company title at the time of purchase of his share in CHB. That said, it does not appear that he made complaint about this at the time of the CHS Dream Explained document.

[8]

Allotment agreements

Most of the appellants acquired their shares in CHB directly but in two instances appellants (Mr and Mr Townsend in March 2017; and Mr Darch in February 2015) acquired their shares in CHB from an existing shareholder. (The appellants point out that HBS was a party to the Townsends' agreement, although the relevance of this is moot, since HBS was not an owner of the shares in question and nor was it the owner of the land.)
All of the appellants acquired what were referred to as LTS (long term site) shares as opposed to STS (short term site) shares. The primary judge pointed out that in legal terms, the shareholders subscribed for shares in CHB ([35]) rather than purchasing them, as such. Nevertheless, the various allotment agreements were framed in terms of purchase. (Similarly, his Honour noted at [40] that references to "buyback" transactions appear to have ignored the statutory prohibition on a company buying back its own shares other than through compliance with the statutory procedure for so doing. Nothing, however, turns on this.)
The contracts by which the appellants bought their shares in CHB (to which I refer generally as the allotment agreements) varied (and, in one case, there was no written contract - that being the agreement with Ms Vale). There were three main categories of contract.
First, there were formal share sale deeds. These were entered into by the earliest of the appellant purchasers (Mr Sheahan, the 14th appellant, on 26 March 2012; and Mr Neville Kelly and Mrs Susan Kelly, the 10th and 11th appellants, on 22 April 2012 (10th and 11th appellants)). These agreements referred in terms to the sale and purchase of shares (an A-Class share in CHB which conferred rights of exclusive use to a particular allotment). The agreements also contained a term that the "purchase price" may be used for the purchaser of the Park (see cl 3.1) and an express acknowledgment by the purchaser that "funds paid for the Shares may be used at completion as funds toward the purchase price of the Caravan Park and will be paid into the Trust Account of the Vendors Solicitor (the details of which form schedule 2) until settlement of the purchase of the Caravan Park when they may be used for that said purpose". Clearly enough, these allotment agreements were premised on the acquisition of shares in CHB prior to it holding legal title to the Park.
Second, there were allotment agreements that provided for the purchase and sale of a particular "Allotment" identified by number (Allotment [X]) and stating the size of the allotment in square metres. In this category were agreements entered into by: Mr Tait (now deceased) and Mrs Tait (6th appellant); Ms Waugh (formerly the 3rd appellant); Ms Cook (5th appellant) in respect of her first allotment; and Ms Brown (8th appellant). Ms Brown's contract also stated that "[T]he Allotment is sold as a share in Coolah Home Base Pty Ltd". These contracts were entered into over the period from 26 March 2013 (Mr and Mrs Tait) through to 24 August 2013 (Ms Brown). The sites of the various allotments were not disclosed in the contracts but were as defined in the CHB Constitution.
Third, there were allotment agreements that referred to the purchase and sale of "the share for" an identified allotment. In this category were the agreements entered into by: Mr and Mrs Squire (the 15th and 16th appellants) on 7 November 2013; Ms Robertson (13th appellant) on 25 November 2013 for one allotment and 14 March 2014 for another allotment; Mr and Mrs McMillan (1st and 12th appellants) on 28 July 2014; Ms Cook (5th appellant) in relation to her second allotment on 5 November 2014; and Mr Darch (2nd appellant), acquiring from an existing shareholder on 2 February 2015. This version of the allotment agreements included terms that the purchaser will purchase and the vendor will sell "the share for" the specified allotment; stated the total size of the allotment in approximate square metres; made provision for the purchase price; stated that payment for the purchase of the Allotment was to be made on the signing of the agreement or within a specified time of the signing of the agreement; stated that the purchase price for the specified allotment included a particular numbered A Class Share in CHB; and stated that the Constitution and the By-Laws of CHB applied to the ongoing possession of the Allotment.
At the time that Mr and Mrs Squire entered into their allotment agreement, Ms Kelly sent an email to Mr Squire answering queries he had raised, and which stated (inter alia) that "I understand the law does not provide for a cooling off period for the purchase of shares however we have demonstrated in the past that if someone does not fit or is unhappy with their purchase, we [will] buy their share back". I pause here to note that, in response to a concern expressed by Mr Squire that the controlling shareholding of the directors "could be a stumbling block later on", Ms Kelly stated that this was not their intention; that the company was "designed to go into perpetuity as a company controlled by shareholders" and that she did not see a right of veto being exercised in the future (stating that "The overall plan is to have a group of fair minded, similar thinking people as shareholders, so future management and decision making should be easy").
In relation to Mr McMillan (who helped prepare the CHB Dream Explained document), it may also be noted that after he and his wife acquired their share in CHB he prepared and executed (on 24 October 2014) a document entitled "Memo of Understanding" (MOU), which included the statement that Mr and Mrs McMillan agreed that they "do not 'own' Lot 52 as such, they simply own a share in CHB which owns all of the real estate".
As to the remaining forms of agreement, they were as follows.
The agreement by which Mr and Mrs Townsend (the 17th and 18th appellants) purchased an identified "Allotment [x]" from Ms Parsell on 13 March 2017 was found by the primary judge to be "nothing more than an agreement by the Townsends to buy a share in CHB from Ms Parsell" (see principal judgment at [411]). The appellants treat this as an agreement within the second category (i.e., for sale of a particular Allotment). CHB was not a party to this agreement (though, again, HBS was). The contract stated that the purchase price of $80,000 was for the "Vendor's agree[ment] to sell the share" and stated that the terms of CHB's "Constitution" and "By-Laws" applied to the "ongoing possession of [the] Allotment".
Mr James (9th appellant) entered into a contract on 3 January 2013 to buy "Cabin [X], a Kitome Retreat Modified". The contract stated that the purchase price included an "A-Class Share, Number A[X], in [CHB] for Allotment [X]". The appellants treat this as an example of the second category of allotment agreements (i.e., for the sale of a particular Allotment). It should be noted that prior to entering into his contract there was an enquiry by Mr James as to the applicability of the first home owner's grant and Mr Booker sent him an email stating that his transaction was a "share transaction", and that he was "buying a share in the company that owns the property". (The appellants point out that, nevertheless, Mr James applied for and obtained the grant (AT 106.36-37).)
Ms Axtell (7th appellant) gave evidence that she had entered into a written contract but that this had been lost. Ms Axtell acquired her share in late 2012. From a chronological point of view, it might be more likely that this contract was in the form of the second category of allotment agreements (since it post-dated the settlement of CHB's acquisition of the Park and was closest in time to the early 2013 contracts (of Mr James and Ms Tait) but that is mere speculation). The Kelly-Booker respondents note that Ms Axtell did not seek to prove the terms of that agreement by secondary evidence (as she could have done), referring to Giasoumi v Hutton [1977] VR 294 at 298 per Fullagar J. The primary judge (see the principal judgment at [414]) said that there was no reason to think that the terms of this agreement were any more favourable to Ms Axtell than the written agreements which were in evidence and noted that she bore the onus of demonstrating what the terms of the contract were. At [415], his Honour noted that evidence from Ms Axtell about representations allegedly made by Ms Kelly was not evidence of the terms of the written agreement itself.
Finally, as adverted to above, the 4th appellant, Ms Vale, who acquired her share on 12 October 2012, had no written contract. His Honour said at [416] that on Ms Vale's evidence the contract may have been entirely oral; and noted that evidence of pre-contractual negotiations did not establish the terms of that contract.

[14]

Voluntary administration and subsequent DOCA

In August 2019, before final submissions had been made in the s 247A proceedings, Ms Kelly and Mr Booker placed CHB in voluntary administration. They, and various professional advisers to CHB, were the company's unsecured creditors. The primary judge noted that nearly all of the claims in the administration related to expenses associated with the s 247A proceedings and prior disputes with shareholders (see [56]; [539]; [552] of the principal judgment). Mr Gray and Mr Dean-Willcocks were appointed as administrators and (significantly in terms of the allegations of oppressive or unconscionable conduct) they assumed control of the company from that point.
In November 2019, Ms Kelly and Mr Booker put forward a proposal for a Deed of Company Arrangement (DOCA). This contemplated the sale of the Park (the land and improvements thereon owned by the company) to CTP for $430,000 plus GST (a sum in excess of the valuation of the Park obtained by the Administrators).
On 14 November 2019, the Administrators sent a notice to shareholders advising that they would be recommending the DOCA to creditors. The letter noted that if the DOCA proposal was approved by creditors (which was said to be likely), the DOCA would include in part, among other things, that: the contract would provide that cabins owned by shareholders would be on the land at completion (and it would be up to individual shareholders and CTP to make arrangements as [sic] the continued occupation of shareholder cabins on the land); that it would be a condition of the contract that the directors of CTP covenant that CTP would offer to all shareholders with a cabin on the land the residential tenancy agreement attached to the letter. The Administrators stated that the proceeds of sale of the Park would be insufficient to meet all of the administration expenses and creditors' claims so that there would be nothing for shareholders (see [320] of principal judgment).
The Administrators issued a supplementary report to creditors on 18 November 2019 (see principal judgment at [322]), recommending the DOCA to creditors. The Administrators in that report stated their view that CHB had been insolvent when they were appointed but that there was no question of insolvent trading because it only became insolvent when the directors decided to stop funding the litigation.
On 27 November 2019, there was a meeting of creditors. There was unanimous approval for execution of the DOCA (see principal judgment at [338]). The DOCA was signed by Ms Kelly and Mr Booker that day, both in their personal capacity and as directors of HBS.

[15]

Correspondence with shareholders

On 14 November 2019, the same day that the Administrators wrote to shareholders advising that they would be recommending the DOCA, Ms Kelly and Mr Booker wrote to shareholders on HBS letterhead, advising that the Administrators were entering into a DOCA and the land and improvements owned by CHB would be sold (and that the "Dream" is no longer). The letter asserted that CHB was put into voluntary administration "as a direct result of court action taken by McMillan and Darch".
The 14 November 2019 letter included the statement that "Graeme and I are purchasing the land with a new company [CTP]" and that this meant that "the legal structure changes and the home base becomes a standard caravan park". The letter stated that, instead of being company title and controlled by a company constitution "we will come under the Residential (Land Lease) Communities Act 2013". Among other things, the letter advised that a standard Department of Fair Trading Disclosure Statement would be emailed to shareholders two weeks before the settlement date, to which a standard Department of Fair Trading Residential Site Agreement (RSA) would be attached and that "On or before the settlement date the RSA is to be signed and returned to us". The letter noted that if the shareholders did not wish to enter into the RSA they could remove their cabin from the community (and a bond would be required). The letter advised that Ms Kelly and Mr Booker were currently investigating a fair market value for the site fees and seeking advice from a specialist solicitor; and that initial feedback was that the "going rate in the area is around $190 per week". At that time, the weekly site fee at the Park was $65.00.
This is the first letter relied upon as particulars of both the misleading and deceptive conduct claim ([25(I)] of the Fourth Amended Statement of Claim) (in relation to the claim that McMillan and Darch were responsible for CHB being put into voluntary administration) and also the harassment claim ([28(I)] of the Fourth Amended Statement of Claim) (on the basis that the letter was "harassing and coercing" members to sign an RSA).
On 2 December 2019, the directors sent a letter on CTP letterhead (the second letter relied upon in the particulars of misleading and deceptive conduct and harassment, respectively) advising, among other things, that on settlement of the sale (contemplated for 18 December 2019), CHB's shareholders' rights to use the land would cease but that each shareholder was being offered the continued use of the allotment occupied by the shareholder under an RSA. The letter stated that failure to sign the RSA meant that the shareholder would have no right to occupy, enter or remain on the land after 18 December 2019; and, again, that this situation had arisen as a direct result of the court action taken by McMillan and Darch against CHB.
This letter is relied on as a further particular of the misleading and deceptive conduct claim on the basis that it is said to have made the misleading and deceptive claim that if the member did not sign a new RSA the ongoing occupation of their allotments would be unlawful (see [25(II)] of the Fourth Amended Statement of Claim). The letter of 2 December 2019 was also said to have made the misleading and deceptive representation that an attached disclosure statement was the Department of Fair Trading's standard Disclosure Statement and that members were not entitled to a cooling off period (see [25(III)] of the Fourth Amended Statement of Claim).
By email on 8 December 2019, Mr Booker sent an email referring to a disclosure statement being emailed on 2 December 2019 and sought confirmation by return mail as to whether the member wished to enter into an RSA with CTP. The email stated that no response by the stipulated time would be taken to mean that no site agreement was requested; and that no site agreement meant no right of access to the allotment or the park after 18 December 2019. The email confirmed that any debt to HBS was to be paid prior to entry into a site agreement. This is not relied on as a particular of the misleading and deceptive or harassment claims but is said to be relevant as part of the context (AT 90.49-50).
Prior to completion of the sale of the Park, shareholders were advised on 11 December 2019 by email from Ms Kelly and Mr Booker, as directors of HBS, of legal advice received (from Mr Vrisakis) as to the status of the dwellings on the sites as fixtures. Ms Kelly and Mr Booker informed members that CTP, following completion of the purchase, intended to put the caravan park (both land and business) on the market for sale; and that the sale would be on the basis that a future purchaser would take over the residents' site agreements in place at that point in time. The email stated that "Any resident who has not signed a site agreement may be treated by Coolah Tourist Park Pty Ltd as having no right to occupy a site at Coolah Caravan Park".
The letter of advice from Mr Vrisakis of Mid-West Law Practice, which was attached to the above email, was to the effect that dwellings erected on the allotments of shareholders in CHB would be taken to be fixtures and as such would be acquired by CTP on completion of its purchase of the Park; but that once a person entered into a site agreement with CTP, the dwelling on the site ceased to be a fixture by force of s 46(6) of the Residential (Land Lease) Communities Act 2013 (NSW) and was owned by that person. Pausing here, there is no account taken in this advice of special condition 51 of the sale contract that acknowledged ownership by residents of their cabins.
The 11 December 2019 email is relied on as a particular of the misleading and deceptive conduct claim ([25(IV)] of the Fourth Amended Statement of Claim) on the basis that it is said to have made the misleading and deceptive representation that dwellings erected on allotments of the members of CHB would be acquired by CTP on acquisition of the land; and as a particular of the harassment claim ([28(III)] of the Fourth Amended Statement of Claim) by saying that unless the recipient signed a new site agreement CTP would own their cabin.

[17]

Further correspondence with shareholders

On 18 December 2019, the solicitor acting for CTP (Mr Vrisakis) wrote to the appellants' solicitor (Mr Vogel) stating that "The Purchase was completed yesterday and CTP is entitled to possession of Coolah Caravan Park as against, and to the exclusion of your clients. This letter serves as notice that CTP requires that Messrs McMillan and Darch leave Coolah Caravan Park by no later than 10am on Monday, 23 December 2019".
The particulars to the harassment claim include ([28(IV)] of the Fourth Amended Statement of Claim) that on or about 18 December 2019, Mr Booker approached the appellants "and others" and harassed and coerced them to sign a new site agreement.
In a letter to shareholders on 24 December 2019 after completion of the sale, the directors, on CTP letterhead, stated: The question has been asked, how can the Coolah Caravan Park land have been sold when the CHB Constitution provided that it could only be sold with the consent of 80% of Share Holders? The answer is that CHB was placed into voluntary administration as a result of the court action against it taken by Messrs McMillan and Darch and it was the voluntary administrators of CHB who sold the land in exercise of their power to do so conferred by the Corporations Act 2001. [emphasis as per original]
Also on 24 December 2019, Ms Kelly advised one of the shareholders (Ms Waugh, formerly the 3rd appellant) that HBS had ceased trading at 5pm on 17 December 2019 following the sale to CTP.
The next particular of both the misleading and deceptive conduct claim ([25(V)] of the Fourth Amended Statement of Claim) and the harassment claim ([28(V)] of the Fourth Amended Statement of Claim) is a letter sent on 14 January 2020 from Mr Vrisakis to Mr Vogel (not to the shareholders as particularised in the pleading). This is relied on as a particular of the misleading and deceptive conduct claim on the basis that it is said to have made the misleading and deceptive representation that members' rights to use the Park ceased when the land was sold to CTP. It is relied on as a particular of the harassment claim on the basis that it was saying that unless the recipient signed a new site agreement CTP would own their cabin.
The 14 January 2020 letter from Mr Vrisakis to Mr Vogel asserted, among other things, that the shareholders' right to use the Park came to an end on sale of the Park to CTP and also proceeded on the basis that unless a new RSA was signed the home located on that site would belong to CTP under the general law.
The two final particulars of the misleading and deceptive conduct claim are: (per [25(VI)] of the Fourth Amended Statement of Claim), a letter of 21 February 2020 from Mr Vrisakis to NCAT "misleading and deceiving the recipients into believing that the Court had ordered that the First, Third and Fourth Defendants should make an application for a stay of certain NCAT applications"; and (per [25(VII)] of the Fourth Amended Statement of Claim), a letter of 28 February 2020 from Ms Kelly, as director of CTP, to all members of CHB, "misleading and deceiving the recipients into believing that the NSW Supreme Court had ordered that they must pay [CTP] money". Those letters are referred to in a letter dated 29 February 2020 from Mr Vogel to Mr Vrisakis. Neither of these letters appears to be reproduced in the Blue Book but both are referenced in the letter from Mr Vogel.
The appellants complain that in some instances, when residents were away from the park, Ms Kelly and Mr Booker "seized their premises and rented them out to tourists" referring to statements that, as the shareholder had not made any payment for site fees "Coolah Tourist Park has taken possession" of the particular allotment and cabin on it and that if the shareholder wished to regain possession the shareholder "must pay the full amount owing". Certainly, there are letters where it is stated that possession has been taken of the allotments (for non-payment of site fees) (though I note that I can find no reference in these letters to renting the cabins or the allotments out to others). It does not appear that any of the appellants were actually evicted from the Park.
In March 2020, shareholders were sent a letter stating that "You will not be permitted to continue in occupation at the Park, in a cabin that is a fixture on land owned by CTP, without making appropriate payment".

[18]

Primary proceedings

The proceedings that culminated in the principal judgment were commenced on 11 February 2020 in the names of six of the appellants (Mr McMillan, Mr Darch, Ms Waugh, Ms Vale, Ms Cook and Mr Tait).
The procedural history of the matter, and the various iterations of the pleading have been summarised by the primary judge (see from [66]). Insofar as it appears that counsel for the appellants informed the primary judge that the form of the statement of claim (in its then iteration) had been "approved" by the judges who had previously been handling the matter (one of whom was me), that is an overstatement at least insofar as it extends to me. What I dealt with at an early stage, as part of the case management of the proceedings at first instance, were the interlocutory applications referred to by the primary judge in the principal judgment at [72]-[75]. It is incorrect to suggest that the pleading was "approved" by me. Refusing to strike out a pleading or permitting an amended pleading to be filed is not the same as "approving" the pleading.
The matter was heard by the primary judge from 30 August 2021 in a hearing spanning some 14 days in total.
It is convenient at this stage to note the way in which the appellants pleaded their claims at first instance, since part of their complaint in this appeal as to the way that the primary judge dealt with their claims involves a contention that his Honour misapprehended certain of those claims (in particular, the unconscionable conduct claim which in submissions they elevate to the central claim, describing the misleading and deceptive conduct and harassment claims as "fallback" positions). The statement of claim which came before the primary judge was lengthy, replete with cross-references, and fell far short of the obligation in r 14.8 of the Uniform Civil Procedure Rules 2005 (NSW) to be "as brief as the nature of the case allows". In light of the submissions made on appeal, it is necessary to summarise it in some detail, as I have done below.
The iteration of the pleading at the time of the hearing before the primary judge (as adverted to above) was the Third Amended Statement of Claim. However, at the time of making final orders, his Honour granted leave for the filing of a Fourth Amended Statement of Claim (to which there was neither opposition nor consent by the relevant respondents). The only relevant amendment appears to have been to include as a claim for relief the claim (R20) pursuant to s 233(1)(a) of the Corporations Act 2001 (Cth) (Corporations Act) for CHB to be wound up and that a nominated person be appointed as liquidator of that company (relief that had not been sought in the previous iterations of the statement of claim). Thus, it is not correct for the appellants here to suggest (as they did) that winding up was not relief sought by them and to submit that his Honour was therefore in error in granting that relief. The more accurate position is that the relief was only sought by them at the conclusion of the hearing (no doubt because of the indications that had been made by his Honour in the course of final submissions indicating that such relief would be available).
References below to the pleading are to the Fourth Amended Statement of Claim.
The structure of the pleading is that there are a number of allegations grouped under headings which one would think are intended to identify the relevant claim or allegation but which are somewhat misleading in that aspects of the claims pleaded against some of those headings (in particular, see the section headed "Claims against Administrators") are then picked up in particulars to claims against other of the defendants. The various claims may be summarised as follows.
Under the heading "Purchase of Land and Shares", [5], [5A], [5B], [6] to [7] plead the entry by the respective appellants into agreements, it being alleged that those agreements "by their terms provided that for payment of consideration" each of the appellants purchased allotments of land and one A class share in CHB. It is alleged that the appellants thereby acquired an equitable interest in the "Land" (defined by reference to the certificate of title for the whole of the Park); and that CHB held the appellants' equitable interests in the land on resulting, or in the alternative constructive, trust for the appellants. The relief sought in this regard was a declaration (R4) that the land was held on trust with respect to the allotments sold; and an order (R10C) for specific performance of the respective agreements by selling each plaintiff the agreed allotment of land.
Pausing here, an immediate difficulty with the order sought for specific performance (apart from the fact that the allotment agreements had already been completed and hence were no longer executory) is that a sale of a particular allotment of land to any one or more of the appellants would have required the subdivision of the Park into separate titles. The appellants here seek to overcome this difficulty by arguing that there could be a transfer of a fractional interest in the whole of the land (to be held as tenants in common) to each appellant proportionate to the size of the individual appellant's allotment (see AT 4.10-18). On no view, however, is that what the appellants contend was promised to them (and which they pleaded had been acquired by them). The appellants' response to this is in effect to say that it was incumbent on the primary judge to fashion the best relief he could in order to give them the closest to that which they were promised. That comes dangerously close to invoking palm tree justice (the framing of relief by idiosyncratic notions of fairness or good conscience - see, albeit in a different context, the observations of Weeks J in Taylor v Dickens [1998] 1 FLR (Eng) 806 at 820; as endorsed by Lord Leggat in Guest v Guest [2022] UKSC 27; [2023] 1 All ER 695 at [163]). Moreover, and as was pointed out at the hearing (see AT 4.7), a fractional interest in the whole of the land is well removed from exclusive possession of the individual lots.
The next section of the pleading is headed "Promissory Estoppel" ([7A]-[7F]). Under this heading, it is alleged that the Kelly-Booker respondents promised that the appellants would receive an interest in the land as well as a share in CHB by buying allotments at Coolah Home Base ([7A]); and that the appellants, in reliance on the terms of the agreements and the conduct pleaded and particularised in [24] (see at [105] below), made life-changing decisions to enter into the agreements, pay the consideration, erect cabins and other improvements on the allotments, enter and take possession of, and reside on, the allotments ([7B]). This invokes the language of proprietary estoppel cases (see, for example, Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 re life-changing decisions).
Paragraph 7C pleads the alleged detriment suffered as a consequence of that reliance as being the loss suffered by reason that: the appellants' proprietary interests were not recorded in writing or registered; and the land was sold to CTP free of their proprietary interests. Paragraph 7D then goes on to plead (albeit still under the heading "Promissory Estoppel") that: Premised on the conduct pleaded in paragraphs A21-A42, 28, 35 and 38, the First, Third, Fourth and Seventh Defendants [the Kelly-Booker respondents and HBS] engaged in conduct that was unconscionable within the meaning of the unwritten law.
It is relevant here to note that the claim of unconscionable conduct at this point of the pleading ([7D]) thus encompasses conduct pleaded later in the pleading (under a heading "Claim Against Administrators", at [A21]-[A42], albeit there listing alleged breaches of duty by the directors not the Administrators themselves) as well as conduct particularised under the headings "Harrassment [sic] and Coercion" [28] and "Unconscionable Conduct" ([35]; [38]). Given that the particulars to [35] themselves include references back to conduct "particularised" in [5]-[8], [24]-[25] and [28]-[32], there is an unfortunate element of circularity throughout the pleading.
Paragraphs 7E and 7F then plead against the Kelly-Booker respondents and CHB (by reason of the Kelly-Booker respondents being directors), respectively, that they are estopped from denying the appellants' respective interests in the land according to their promises to the appellants.
Under the heading "Sale of Property Held in Trust" ([8]-[10A]), it is alleged that the sale by CHB of the land (under the DOCA) to CTP was in breach of CHB's fiduciary duties as trustee; and that, as parties to the DOCA and as directors of CTP, the Kelly-Booker respondents have breached their fiduciary duties as trustees. The pleading contends that (see [10A]), premised on the conduct pleaded at [5], [5A], [5B], [6], [8], [9] and [10], CTP holds the appellants' interests in the land on constructive trust for them; a declaration is sought to that effect (R10A(a)) as well as the order at R10C.
What then follows, under the primary heading "Claim Against the Administrators", is the pleading (at [A11]-[A64]) of various allegations under different sub-hearings.
First, allegations relating to the entry into administration, under the sub-heading "Relevant factual background". Second, allegations of breach by the directors of fiduciary and statutory duties owed to CHB and the appellants ([A21]-[A42]). Third, allegations of oppressive conduct by the Administrators in breach of s 232 of the Corporations Act ([49]).
Fourth, allegations of involvement of the Administrators in the directors' unconscionable conduct ([A50]), that involvement being said to be in particular respects (recommendation of entry into the DOCA, which is alleged to have had the effect of stripping CHB of all its assets and its undertaking without adequate compensation to CHB, for the benefit of the directors and not the company or members; sale of the land and undertaking allegedly at an undervalue due to erroneous instructions to the valuer; and knowingly assisting the directors' breaches of duty and trust), each cross-referenced to other parts of the pleading.
Fifth, the allegation that the Administrators sold property which the company did not own in breach of s 442C(1)(b) of the Corporations Act ([A51]).
Sixth, allegations of breach of a duty of care by the Administrators to the appellants ([A52]-[A54]).
Seventh, the allegation of knowing assistance by the Administrators in breaches by the directors of their fiduciary, equitable and statutory duties as set out in ([A11]-[A42]) ([A55]-[A56]).
Eighth, the allegation of knowing assistance by the Administrators in the breach of trust by CHB and/or the directors by facilitating the DOCA which resulted in the sale of the land interests equitably owned by the members and held on trust by CHB for the appellants ([A57]-[A59]) (identified as a second limb Barnes v Addy (1874) LR 9 Ch App 244 (Barnes v Addy) claim). Finally, there is an allegation of the Administrators' liability for knowing assistance in unlawful conduct ([A60]).
Paragraphs [A61]-[A64] then set out the claim for compensation for losses: an allegation that the Administrators are jointly and severally liable with the other defendants to pay equitable compensation ([A61]); a claim made, additionally or in the alternative, that orders be made compensating the plaintiffs for losses arising from the Administrators' breach of duty of care and diligence in common law and equity and breaches of their statutory duties (with particulars of the "causes of loss" cross-referenced back to other allegations in the "Claim Against the Administrators" section of the pleading) ([A62]); and a claim for orders "having the effect of putting the Plaintiffs back into the position they would be in but for the misconduct of the Administrators" ([A63]).
At [A64], it is pleaded that, additionally or in the alternative, the Court should make the order for relief set out at R12-14 (there being an overlap between that relief and the relief claimed in the substantive part of the pleading). Prayer 14 claims broadly an order for compensation and/or damages pursuant to the Australian Consumer Law (ACL), in Sch 2 of the Competition and Consumer Act 2010 (Cth), including economic and non-economic losses, disappointment, distress and injury, other statutory provisions, damages for breach of contract and in tort, and/or equitable compensation.
The pleading then (somewhat confusingly) reverts to the numbering that preceded the section on the "Claim Against Administrators".
After some deletions (in respect of the original [11]-[15]), there is a heading "Second Defendant's liability" (i.e., CTP's liability). Under this heading, it is alleged (at [16]) that CTP was a party to fraud being in knowing receipt of trust property (the appellants' equitable interests in the land and their rights or interests as shareholders); and at [17] that CTP is a constructive trustee who holds the members' interests in the land in trust for them. At [18], the relief sought at R10 is claimed, namely, a declaration that the agreement for the sale of land from CHB to CTP (under the DOCA) is void ab initio and of no effect or, in the alternative, an order that CTP transfer all of its rights, title and interest in the land to CHB; and in either of those scenarios, an order that CHB transfer to each of the appellants, as tenants in common, a fraction of the land calculated by dividing the area of land specified for each appellant's allotment at the time of purchase by the total area of the land. (This last claim for relief would require subdivision of the land, if what is contemplated is that the appellants would each have separate title to a fractional interest in the land corresponding to their allotments).
There next follows a section headed "Residential Site Agreements" ([19]-[23]), in which it is alleged that the Residential Site Agreement entered into at the time of the purchase of "their allotments" is enforceable against CTP as well as CHB; that any attempts to evict members are unlawful and in breach of contract, and attempts to force members to enter into new Residential Site Agreements are unlawful (such that declarations R1 and R2 and the order in R5 should be made); and that, if CHB has breached, terminated or repudiated the Residential Site Agreement, Ms Kelly and Mr Booker are liable in tort for inducing CHB to do so (such that a declaration to that effect as sought under R3 should be made).
The next section, under the heading "Misleading and Deceptive Conduct" ([24]-[27]) alleges that the Kelly-Booker respondents have misled and deceived the appellants "and [unspecified] others" in breach of various statutory provisions. Particulars of that conduct identify representations at presentations, publication of written materials, and oral representations that by buying an allotment purchasers would receive an interest in the land as well as a share in CHB ([24]).
Paragraph 25 then alleges that, notwithstanding conduct in relation to the land, the Kelly-Booker respondents have misled and deceived the appellants (and again unspecified others) in breach of s 18 of the ACL or Part 2 Div 2 of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act). Particulars of that allegation identify a number of letters (14 November 2019, two on 2 December 2019, 11 December 2019, 14 January 2020 from one or more of the Kelly-Booker respondents, a letter of 21 February 2020 from the solicitors for the Kelly-Booker respondents to NCAT; and a letter of 28 February 2020 from Mr Booker as director of CTP) ([25]).
There is a bare assertion of loss and damage (at [26]); and the relief sought is that claimed in R6, R8, R10, R10C, R11, R13, R14 and R15 ([27]).
This is followed by a section headed "Harrassment [sic] and Coercion" ([28]-[30]). The allegation there pleaded is that the Kelly Booker respondents, in breach of s 50 of the ACL or Part 2 Div 2 of the ASIC Act, harassed and coerced the appellants (and unspecified others) in relation to the supply or possible supply of goods or services or the payment for goods or services or the sale or grant or possible sale or grant of an interest in land or the payment for an interest in land. The particulars of this allegation again identify a series of letters (including some of those particularised for the allegation of misleading and deceptive conduct - 14 November 2019, one of the 2 December 2019 letters, 11 December 2019, 14 January 2020 from one or more of the Kelly-Booker respondents) and conduct of Mr Booker on 18 December 2019 relating to the proposed new Residential Site Agreements.
Again, the allegation is that loss and damage has been suffered by reason of that conduct ([29]); and the relief claimed is the same as that for the misleading and deceptive conduct allegation ([30]).
The next heading is "Oppression". The allegations of oppression under that heading are: first, the allegation of breach of ss 232(a) and (e) of the Corporations Act (at [31]), particularised by reference to matters relating to the issue of the 19 STS shares to Ms Kelly and Mr Booker to attain a majority shareholding (at less than such shares were selling to others); entry into the exclusive management agreement with HBS; cessation of the provision of annual accounts to members after the 2015 financial year; refusal to provide accounts; the s 247A proceedings; entry into voluntary administration; entry into the DOCA; and letters relating to the requirement to sign a new Residential Site Agreement and as to the homes becoming the property of the new owner after the sale and statement by the lawyer that the first and second plaintiffs had to leave the park by 23 December 2019; and, second, the allegation that Ms Kelly and Mr Booker "further defrauded" CHB by failing to pay site fees and misappropriating money received for purchase of shares "and otherwise" ([32]). The relief sought was that specified in R7, R8, R10, R10C, R11 and R13 ([34]).
Finally, the last section of the pleading is headed "Unconscionable Conduct" ([35]-[39]). Relevantly, the particulars of the unconscionable conduct alleged at [35] are: 35. The First, Third, Fourth and Seventh Defendants, in trade or commerce, in connection with the supply or possible supply of goods or services to another person, engaged in conduct that is, in all the circumstances, unconscionable: Particulars I. The Third and Fourth Defendants, in connection with supplying or offering to supply cabins and residential services to the Plaintiffs and others, pursuant to the Constitution of the First Defendant, engaged in conduct particularised in paragraphs 5-8, 24-25, 28-32 above that is, in all the circumstances, unconscionable; II. Deleted Ill. It is unconscionable for the First, Third, Fourth and Seventh Defendants to assert that cabins are fixtures which now belong to the Second Defendant in circumstances where the Fourth and Seventh Defendants supplied the cabins to members either as vendor of existing cabins or builder of new cabins; IV. Having assured members many times, over several years, in print and orally, that the Land could not be sold unless 80% of members agreed, it was unconscionable for the First, Third, Fourth and Seventh Defendants to propose and participate in the sale of the Land;
There is again an allegation of loss and damage ([36]) and the relief claimed is identified as that at R10, R13, R14 and R15 ([37]).
Paragraph [38] appears to add a further (separate) allegation of unconscionable conduct: 38. The Second, Third and Fourth Defendants in connection with offering to supply services to the Plaintiffs and others as operators of a Residential Land Lease Community, engaged in conduct that is, in all the circumstances, unconscionable: Particulars I. On 2nd December 2019 the Third and Fourth Defendants wrote to all members advising that the Second Defendant will own Land and improvements from 18 Dec 2019, that it will become a Land Lease community, and members had to sign a new Residential Site Agreement (RSA) by 18 Dec 2019 or leave the village. Weekly payments for the new RSA increased from roughly $68.00 to $180.00; II. On 11th December 2019 the Third and Fourth Defendants advised members that when the Second Defendant buys the land on 18 Dec 2019, their homes become property of the new owner, unless the member signs the new RSA. Ill. The contract for sale of the Land includes cl 51.3 "The purchaser acknowledges that each Shareholder has constructed or holds, parks or places improvements on their Allotment. The vendor has no interest in the Shareholder improvements (Shareholder Improvements) and the Shareholder Improvements are expressly excluded from the sale of the property"; IV. The contract for sale of the Land includes cl 51.5 "The vendor is the owner of the Common Property. The Common Property is sold to the purchaser together with the Land, but not the Shareholder Improvements or personal property or other fixtures and fittings belonging to a Shareholder."; V. The Administrator's report dated 19th November 2018 says "The Company owns land, buildings and improvements at 38-46 Cunningham Street, Coolah NSW but excluding the shareholders' dwellings erected thereon."; VI. The contract for sale of the Land says the land is sold subject to existing tenancies; VII. The contract for sale of the Land includes 52.1 "The purchaser acknowledges and agrees that the sale of Land is subject to the rights of Shareholders to occupy, let and or use part of the Land including Common Property and that the purchaser is not entitled to nor will the purchaser obtain vacant possession in the Date for Completion."
The relief claimed for this is identified by reference to R14 and R15.
What is immediately apparent from the cross-referencing within various of the pleaded allegations (and particulars thereto) is the element of overlap (if not indeed circularity) in the pleading. This is relevant to the complaint now made as to his Honour's consideration of the unconscionable conduct claim (see below).
The particulars of the alleged unconscionable conduct claim (pleaded at [35]) included the conduct in the three groups of allegations ([5]-[8] as to the sale of the land; [24]-[25] as to the misleading and deceptive conduct; and [28]-[32] as to harassment, coercion and oppression) as well as the conduct in asserting that the cabins were fixtures and proposing and participating in the sale of the land (having assured members many times as to the "80% rule"). There is then the separate unconscionable conduct claim (at [38]) in relation to the demands for entry into the new Residential Services Agreement and the assertion that CTP obtained ownership in the cabins on site (some of which overlaps with the particulars to [35]). And, as noted earlier, there is the earlier allegation at [7D] (under the heading "Promissory Estoppel") of unconscionable conduct based on the conduct pleaded at [A21]-[A42], [28], [35] and [38].
Moreover, in oral submissions, the appellants argued that the unconscionable conduct forms part of an ongoing course of conduct from the time of the promotion of the allotments to them right up until the proceedings themselves (including conduct during the period in which the directors were not in control of CHB as it was in administration).

[19]

Principal judgment

His Honour identified six groups of claims as pleaded by the appellants in their (then) Third Amended Statement of Claim, summarising those (from [14] of the principal judgment) broadly as follows (paragraph references are to the principal judgment).
First, the appellants' claim to equitable ownership interests in the sites occupied by them at the Park based on the allegation that when purchasing their shares in CHB they were promised interests in the sites themselves. (This claim failed and there is no challenge to the decision in this regard, albeit a challenge to the conclusion that the appellants were not promised interests in land as well as the CHB shares.)
Second, the appellants' claim for orders rescinding the transfer of the Park to CTP, alleging that as shareholders of CTB they were entitled to have the transfer set aside on the ground of wrongful conduct by the directors.
Third, the declarations that were sought that, as against both CHB and CTP, the appellants' cabins are chattels not fixtures.
Fourth, the allegation that, in conducting the affairs of CHB, Ms Kelly and Mr Booker breached their directors' duties and oppressed CHB's shareholders (including by diverting income and assets of CHB to HBS and the placement of CHB into voluntary administration). His Honour noted that orders were sought under s 233 of the Corporations Act rescinding the transfer of the Park as between CHB and CTP (if the appellants were unable to obtain that relief directly as shareholders), orders removing the directors from control of CHB, and orders for compensation to undo the effect of the directors' breaches. (The oppression claim was the only claim that succeeded but the appellants cavil with the relief granted in that regard.)
Fifth, monetary claims for damages or compensation at general law or under statute on various bases against the Kelly-Booker respondents. His Honour noted that some of those claims were made as an alternative to the claim for recognition of an equitable proprietary interest in the sites; some were as an alternative to the application for rescission orders and other relief against oppression; and some were independent of those other claims for relief. His Honour expressly noted that the heads of damages included both financial losses and harm in the form of disappointment and distress.
Sixth, monetary claims for damages or compensation against the Administrators (some of those claims being made as an alternative to the application for rescission orders and other relief against oppression; and some independent of those other claims for relief).
After setting out a chronology of the key facts, his Honour analysed the evidence, including the evidence of the witnesses. There is no challenge to the credit findings as to the witnesses. In particular, at [180] his Honour noted that there had been a "withering analysis" by Counsel for the Kelly-Booker respondents as to the evidence of the plaintiffs about the purchases, which analysis his Honour accepted.
After considering the promotional material and referring to this withering analysis, at [185] his Honour emphasised the importance of the pleaded representation - for the reason that it was a representation about the nature of the interest which would be conferred if the appellants entered the transaction and that the representation allegedly was that the purchase would confer an interest in land "as well as" the corresponding share in CHB (which his Honour considered was an implicit acceptance that they were promised shares in CHB corresponding to their sites (see [186]-[187])).
His Honour noted (at [188]) his conclusion that no such representation (as to the promise of ownership of sites as land, on top of the shares in CHB) was made in any of the purchase agreements or in the pre-contractual negotiations. His Honour accepted that some of the promotional materials suggested that the appellants would be getting a share in the land itself, but considered that, read as a whole, all that the material was saying the appellants would receive was a share in a company which owned the Park ([189]). At [190], after accepting the submission that the inherent probabilities and the contemporaneous evidence were against the oral representations going further that the written promotional materials, his Honour accepted the submissions made by counsel for the Kelly-Booker respondents about the testimonial evidence of the appellants. His Honour was not satisfied that any of the plaintiffs in fact believed that they would be receiving ownership of their sites as land; and said, further, that if any did hold such a belief, he was not satisfied that it was reasonably based on promises or representations by Ms Kelly or Mr Booker.
After setting out the factual matters leading up to the proceedings, his Honour addressed the various claims and made the following findings as to the six claims or groups of claims he had identified.
His Honour addressed the appellants' assertion that they held equitable proprietary interests in the sites (from [390]), noting that this claim was based, first, on the contention that such interests arose under their purchase agreements (of which they sought specific performance) and, second, that the alleged equitable interests arose by way of resulting trust or equitable estoppel.
His Honour concluded that none of the appellants had an equitable interest in the Park or any of their allotments by reason of the purchase agreements (see [394]-[412]), observing at [403] that a contract for a sale of both a share in a company title arrangement and the land itself would be legally incoherent. His Honour repeated that conclusion at [564]. At [417], his Honour accepted the submission that even if there had been a contractual obligation to transfer the allotments to the appellants, specific performance could not have been obtained (given the impossibility of subdividing the allotments into separate pieces of land - an issue to which there had been no reply by the appellants).
As to the resulting trust claims (made only for two purchases that took place prior to the settlement of the sale of the Park to CHB), his Honour said that the fundamental difficulty with that contention was its inconsistency with the terms of the purchase agreements ([419]). His Honour said that there was no room (in face of cl 3 of the purchase agreements) for the implication or assumption that the legal interest in the land was to be held for the benefit of the parties who provided the money ([420]).
As to the proprietary estoppel claim, his Honour noted that it was common ground that the appellants could not succeed in establishing a proprietary estoppel without proving that there were promises or representations by CHB to them that they would receive a proprietary interest in the allotments and that, induced by those promises or representations the appellants had acted to their detriment; and that he had already concluded that neither of those elements was established on the facts (referring back to [188]; [190]) ([421]).
Hence, his Honour concluded that the appellants' claims to equitable proprietary interests in their sites failed ([656(1)]). The fact that the appellants "had, and have no, contractual entitlement to ownership of their sites" also answered the claim for inducing a breach of contract ([564]).
His Honour next addressed the claim that the directors had breached their duties as directors of CHB in causing the transfer of "all the assets and undertaking" of CHB to CTP (see from [437]). His Honour concluded that neither the contracts executed by any of the appellants, nor any operation of estoppel, had given rise to such an interest. His Honour accepted the submissions made by counsel for the Kelly-Booker respondents that: the claim was misconceived as the sale was pursuant to the contract signed by the Administrators (not the directors) ([439]); the sale was pursuant to the terms of the DOCA, which had not been, and was not sought to be, rescinded ([440]); the Park had been sold for $430,000 plus GST, which money could not be returned as would be required as a condition to any rescission ([441]); and no fiduciary duty between the directors and the appellants had been pleaded ([442]).
His Honour said that even if the transfer of the Park to CTP resulted indirectly from the actions of Ms Kelly and Mr Booker, they could not be made liable for breach of duty for things that they did not themselves do ([439]); and that the transfer could not be rescinded unless the DOCA was set aside (which the appellants had not sought) ([440]). His Honour also accepted the submissions that: rescission would not be available unless CHB was prepared to do equity by returning the purchase money, which CHB was not in a position to do; and a direct fiduciary duty between the directors and the appellants (as CHB shareholders) had not been pleaded (see [441]-[443]).
His Honour also observed (at [443]) that the cases in which directors had been found to owe fiduciary duties to shareholders had involved transactions by shareholders such as the sale of their shares (contrasting this with the present case where the conduct complained of was the sale by the company of an asset belonging to it). The claim for recission of the transfer therefore also failed ([656(2)]).
Next, his Honour considered the declaratory relief sought by the appellants as to their ownership of the cabins situated on their allotments. His Honour found that there was insufficient evidence to determine the status of the cabins, or associated structures, as fixtures or chattels at law, nor was there any demonstrated utility in doing so ([451]; [656(3)]), particularly given that neither the directors nor CHB or CTP claimed any interest in the cabins ([446]).
Turning then to the pleaded case of shareholder oppression, his Honour addressed the broad thrust of the case as presented by the appellants' counsel (from [452]). His Honour considered, first, whether the conduct of CHB's affairs was oppressive, and the relief affecting the control or management of CHB which might flow from that conduct; then the complaints about specific transactions; and the availability of the relief sought. His Honour identified the specific matters about which complaint was made as falling under eight headings: the management arrangements with HBS; the proceeds of the sale of CHB shares; the profits by the directors on the purchase and re-sale of shares; the April 2014 "share issue"; the denial of requests for documents; the appointment of the Administrators to CHB; the sale of the Park to CHB; and the management right conferred by CHB's ordinary shares ([457]).
His Honour said that the evidence showed that the directors were determined to maintain their control and to monopolise decision making concerning the affairs of CHB ([466]), saying that the evidence about the proposal to buy back the shares issued to HBS in April 2014 (for $6,000 each) was revealing, as was the decision by the directors to charge fees for time spent on the s 247A proceedings and for incidental expenses ([469]-[470]). His Honour made similar observations as to the charging of interest on the legal fees associated with those proceedings and on the balance of the HBS loan account (decisions that he said were applied retrospectively and without any consultation with or prior notice to the shareholders).
His Honour also said that the way in which the directors ultimately decided to put CHB into voluntary administration was also telling ([472]), noting that no notice was given of the decision to cease funding the proceedings in August 2019 nor did the directors attempt to raise money from shareholders to continue the defence of the proceedings. In this context his Honour referred to the effective disenfranchisement of the other shareholders ([473]).
His Honour said (at [474]): In my view it is relevant that CHB was not, or at least was not primarily, a trading venture. Its main function (its sole function, according to the Directors) was to manage the Park on a company title, non-profit, basis. The attitude of the Directors was not consistent with that sort of co-operative venture. The other shareholders were left without the ability to exercise any practical influence on CHB's affairs. There were no mechanisms to protect their interests when those interests clashed with those of the Directors.
In those circumstances, his Honour was satisfied that the conduct of the affairs of CHB under the management of the directors, at least from the time when serious issues about governance were raised in late 2016, was oppressive within the meaning of s 232 of the Corporations Act ([475]).
His Honour accepted that the directors' oppression ceased with the appointment of the Administrators on 21 August 2019 ([481]) but said that this did not necessarily mean that the effect of prior oppressive conduct also ceased. His Honour considered that the directors' claims as creditors were, at least in part, open to question; and that there were real questions about the directors' conduct (it being open for claims to be brought on behalf of CHB against the directors for breach of any duty that might have been committed or to vindicate any other rights of the company such as rescission of the share issue (to the directors)) ([482]).
At [484], his Honour said that the resumption of the directors' control over CHB on 17 December 2019 meant that the oppressive conduct of its affairs had resumed; and rejected the submission that no relief was available at all (including for relief to redress the ongoing effect of oppression prior to 21 August 2019) ([484]). Observing that it might have been open to the appellants to contend that, by reason of the oppressive conduct of the directors, the directors or their associates should be required to buy out the appellants' shares in CHB at some price representing pre-administration fair value, his Honour said that the question did not need to be decided as no such relief was sought ([485]).
His Honour expressed doubt as to the power to make an order removing Ms Kelly and Mr Booker as directors of the company and restraining them from acting as directors of CHB in the future (and appointing three other persons as directors). His Honour considered that such an order would go beyond curing the ongoing oppression to the other shareholders; that it would be virtually punitive; and that it would not affect RC's voting control of CHB ([487]). His Honour said that because of the failure of the appellants to join RC (another company controlled by Ms Kelly and Mr Booker) to the proceedings, the issue of the 19 STS shares to RC could not be set aside (nor could any order be made to remove or limit the voting rights of STS shareholders (even had one been sought)) for the same reason.
At [490], his Honour referred to the possibility of an order that CHB be wound up (noting that such an order had not been sought). His Honour considered that such an order would allow potential claims against the Kelly-Booker respondents to be independently investigated and, if justified, pursued (if funding could be obtained) ([490]). Thus, his Honour gave the appellants an opportunity to seek a winding up order (as they ultimately did) if they saw utility in it; and for submissions to be made in opposition to such an order.
His Honour next addressed the contention that the management arrangements between CHB and HBS had the effect that HBS had appropriated to itself all of the site fee income that rightfully belonged to CHB under its Constitution; and that the whole management structure was contrary to the Constitution. (There was a pleading dispute as to the argument there raised by the appellants.)
His Honour considered that the "allocation issues" (as to the allocation of expenses between CHB and HBS) stood unresolved, but that there was some force in the criticism of the internal administration charges imposed on CHB by Ms Kelly (see at [503]). His Honour considered that what should have happened was an arms' length negotiation between the two companies as to how common expenses were to be shared. While his Honour said there was clearly some justification for taking into account the general costs of managing the Park, his Honour said that the imposition of an additional 30% charge for company administration raised different questions. At [505] his Honour noted that an order for compensation in favour of HBS (clearly there meaning CHB) was impossible; that a proper conclusion on what CHB should have been charged would depend upon a formal account being taken; and that it would be necessary to consider the effect of the six-year limitation period.
His Honour considered that proceedings for an account in favour of CHB would be unworkable while CHB remained under the control of the directors; and said that the only thing he could do was to leave the issue to the liquidator if one is appointed ([506]).
As to the tourist income, again his Honour considered that there was force in the complaint that the tourist income should have enured to the benefit of CHB; but that the issue was not pleaded and even if it had been, an order for compensation in favour of CHB would not have been possible; an account would have been required, in the course of which HBS would have been entitled to an allowance reflecting the fair value of its services in managing the business. His Honour said that this issue must be left to the liquidator if one is appointed (see [508]; [509]).
As to the complaint in relation to the allegations of misappropriation of moneys paid for shares in CHB (i.e., that the directors had defrauded CHB by misappropriating certain capital), the primary judge addressed this at [510]-[511]. His Honour accepted the submission from counsel for the Kelly-Booker respondents that allegations about specific missing share receipts had never been pleaded; and had not been put to Ms Kelly in cross-examination; endorsing the directors' submissions that (see [513]): the pleaded allegations proceeded upon a miscomprehension of documents filed with ASIC (namely, prior documents filed with ASIC had recorded the moneys paid for cabins as well as for the A-Class shares, which was later corrected) ([511]); and any further allegations of misappropriation were not pleaded ([512]).
His Honour said that the evidence would not permit the making of an order for compensation or an account in CHB's favour; that at most there could be issues worth investigating; and, again, any such investigation was one that his Honour considered should be undertaken if at all by a liquidator if one was appointed ([512]-[513]). The Kelly-Booker respondents note that there is no appeal from those findings.
The next category of claim considered under this heading was the $25,000 profit made by RC on the sale of Mr Darch's cabin to him. It was submitted that this was a profit which came to Ms Kelly and Mr Booker as directors of CHB. His Honour noted that the implication was that the profit should have enured to the benefit of CHB ([514]).
His Honour accepted as clearly correct the submission by the Kelly-Booker respondents that this allegation had not been pleaded but identified a further difficulty with it, namely that it was predicated on an assumption that once a share had been sold to an initial purchaser there was an opportunity available to CHB to buy back the share. His Honour pointed out (at [517]) that once a company has issued a share it is not lawful for the company to buy it back and hold it as an asset, so no question of making a profit on the further sale could arise. His Honour also noted that, leaving aside statutory provisions on insider trading, there could be no objection to a director of the company buying the share on the secondary market. Hence his Honour considered this claim to be misconceived.
The next claim that his Honour considered was the complaint that the issue of nineteen STS shares in April 2014 (the acquisition of which gave Ms Kelly and Mr Booker majority control) was improper. The appellants argued that it should be reversed. His Honour drew the inference that the directors had issued the shares so as to cement their control of CHB ([523]) and had given no consideration to the interests of other shareholders. His Honour was satisfied that whether or not the transaction involved the improper use of directors' powers it was oppressive ([523]). However, his Honour identified the difficulty in setting aside the transfer as RC was not a party to the proceedings (referring to John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 at [131]-[133]), since such an order would affect its interests ([524]). His Honour also identified the further obstacle that it would be necessary for CHB to do equity, which would involve refunding the amount paid for the shares and any site fees paid on the shares, which CHB was not in a position to do ([525]).
At [527], his Honour noted that although the issue had been discussed in the context of relief against oppression, a claim might have been framed as one by the relevant shareholders (i.e., those as at April 2014) seeking in equity to set aside the share transfers if made for an improper purpose; but that the practical difficulties with joinder and doing equity would remain.
As to the possibility of an order that the directors compensate CHB for any loss, his Honour said that compensation could not be ordered for the issue of the 19 A-Class shares in circumstances where the evidence before the Court did not establish what the loss, if any, was (his Honour noting that there was no expert evidence adduced on the question of value) ([528]). His Honour again left this as an issue for consideration by a liquidator if one was appointed ([528]).
The remaining three categories of alleged oppressive conduct were: denial of access to documents (see [529]-[534]); appointment of statutory administrators ([535]-[554]); the sale of the Park to CTP (overriding the 80% approval requirement in the Constitution), with the allegation that the valuation was flawed ([555]-[559]); and the retention by the directors of their ordinary shares in CHB ([560]-[562]).
As to those, his Honour found that the refusal of access to the documents was oppressive ([532]) but was not prepared to find that it was a breach of duty for the directors to defend the s 247A proceedings at all ([534]); and that the case sought to be propounded by the appellants as to the "sham administration" case (that it was irresponsible and oppressive for the directors to incur the fees in the s 247A proceedings in the first place) was not part of the pleaded claim and issues raised as to whether CHB was insolvent had not been pleaded or put to Ms Kelly in cross-examination ([551]). His Honour said that CHB was put into administration in highly suspicious circumstances ([552]) but said that the case that the appellants sought to propound was beyond the scope of the pleadings ([553]).
His Honour identified two fundamental difficulties in relation to the claim that the sale of the Park itself was oppressive and ought be set aside: first, that once CHB had been placed in liquidation (sic; presumably here this is a reference to administration) the Administrators were clearly correct in proceeding on the basis that the restrictions on the sale of the Park imposed by the Constitution of the company no longer applied ([557]) and, second, that the sale was mandated by the DOCA (and hence it was not open to treat the sale as itself having been oppressive) ([558]). At [559] his Honour noted that those matters would not necessarily prevent a claim being made on behalf of CHB against the directors on the ground that the sale was the consequence of prior breaches of duty by them; and that it would theoretically be possible to seek rescission of the transfer to CTP (but this would be subject to setting the DOCA aside and doing equity by paying back the purchase price, otherwise only equitable compensation could be recovered). Again this was a matter left to a liquidator of CHB if one was appointed.
As to the retention of the ordinary shares in CHB by the directors, his Honour noted that the CBA mortgage was discharged in December 2019 and the relevant term in the Constitution provided for cancellation of the ordinary shares to follow automatically once the mortgage was discharged. His Honour would have been prepared to make an order requiring the cancellation of the ordinary shares but considered it unlikely to be necessary (if the company were to be liquidated) ([562]).
The next main section of the principal judgment dealt with the monetary claims against the Kelly-Booker respondents: damages in tort for inducing breach of contract; damages arising out of the appellants' purchase of their shares in CHB; compensation for losses arising out of the sale of the Park to CTP; and damages arising out of alleged harassment and other conduct of the Kelly-Booker respondents in connection with and subsequent to the sale.
His Honour said it was unnecessary to consider the claim for breach of contract given the conclusion that the appellants did not have a contractual entitlement to ownership of their sites ([564]). As to the remaining monetary claims, his Honour addressed those from [565].
As to the CHB share purchases, his Honour noted that the claims were based on alleged contraventions of the prohibitions on misleading or deceptive conduct (s 18 of the ACL) and unconscionable conduct (s 21 of the ACL).
As to the misleading or deceptive conduct allegations, his Honour noted that the pleading identified these as arising from the representations that the appellants would receive interests in land as well as shares in CHB (the same representations on which reliance was placed for the proprietary estoppel claim); but that in submissions there was emphasis on the promotion of the sale of the allotments on the basis that it would give purchasers "real estate security". His Honour said that the "real estate security" representation case was not what had been pleaded. His Honour referred to his earlier reasons as to why the pleaded representations (promise of ownership of land) did not arise from the purchase agreements or promotional materials; and hence the pleaded claims of misleading and deceptive conduct failed ([568]).
As to the unconscionable conduct allegations, his Honour said that the pleaded case of unconscionable conduct "relevantly referred back to, and relied upon, the representations which were relied upon as misleading and deceptive conduct". His Honour accepted that in some cases misleading and deceptive representations or promises that were not fulfilled could amount to unconscionable conduct but said that the focus of the unconscionability prohibition was different - namely that it was on exploitative commercial transactions ([569]).
At [570] his Honour said: In the present case, it was not alleged that there were any features of the representations, apart from the allegation that they involved promises or representations that the plaintiffs would receive a plot of land as well as a share in CHB, to establish such exploitation. … The unconscionable conduct allegation therefore does not add in any substantial way to the allegation of misleading and deceptive conduct and fails for the same reason as that claim fails.
At [571], his Honour repeated the conclusion that even if the representations had conveyed the promise of ownership of land as well as a share in CHB, he would not have been satisfied that the appellants had relied on those representations to proceed with the purchase; and hence the appellants had failed to establish that the alleged contraventions caused them to act differently.
As to the question of damages, his Honour noted that the claim was asserted on two bases: economic loss and loss in the form of disappointment and distress. As to the first, his Honour concluded that there was no proof of economic loss ([573]) there being no evidence that the price paid for their shares exceeded their true value at the time; nor that the occupation and service fees exceeded market value for those services. His Honour said (at [574]) that there was also no evidence of financial loss consequent upon termination of the right of occupation (noting that the NCAT decision at first instance gave the appellants the protection of the Retirement Villages Act 1999 (NSW) (Retirement Villages Act)) and that there was no evidence that the appellants would suffer financial loss if required to vacate.
As to the claims for disappointment, distress and anxiety, his Honour pointed out that the enquiry was as to the damage flowing from the acquisition of shares in CHB and the consequential right of occupation that they obtained (and considered that this was limited to the period when the Park was sold to CTP and "the occupation rights in CHB's constitution became unenforceable") ([576]).
His Honour considered that the present case was more complicated factually than the disappointment or distress cases (Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4 (Baltic Shipping); Jarvis v Swan Tours [1973] 1 All ER 71 (Jarvis) and NSW Lotteries Corporation Pty Ltd v Kuzmanovski (2011) 195 FCR 234; [2011] FCAFC 106 (Kuzmanovski)), noting that the state of disappointment and anxiety was the product of a long period of disputation during which the personal relationships became "mutually unhappy and in some cases poisonous", which would have made the situation worse. His Honour said that the current state of disappointment and anxiety had no doubt also been influenced by subsequent events including the stress of the litigation itself ([579]) but went on to query whether the latter could be blamed on the initial purchase and if not how it could be segregated and quantified ([580]).
His Honour emphasised that the pleaded allegation was that the appellants would receive an interest in land as well as the shares in CHB and said that there was no obvious link between the state of affairs which has resulted in the disappointment, distress and anxiety and any falsity in that particular representation ([581]). His Honour said that if the appellants had obtained ownership of their allotments as well as ownership of the shares, they would still have been dependent upon CHB as owner of the Park providing them access to their lots and the services required to live there. In those circumstances, his Honour said that had he concluded that there had been misleading and deceptive conduct by Ms Kelly and Mr Booker on behalf of CHB, he would still have rejected the claim for damages as too remote. His Honour did not need to address the submission that the claimed $200,000 was preposterous (nor the limitations defences).
As to the transfer of the park to CTP, his Honour noted his earlier conclusion that as shareholders the appellants had no claim for rescission of the transfer and any such claim would need to be pursued by the liquidator, if appointed. His Honour said that the same applied to the alternative claim for monetary compensation ([583]).
His Honour noted that a separate claim was made in closing submissions for monetary compensation against the directors based on unconscionable conduct and said that it was in substance the same or a subset of the conduct upon which reliance was placed for the oppression claim ([584]).
His Honour did not accept that the conduct (breach of directors' duties or other oppressive conduct) could simply be equated with unconscionable conduct for the purposes of the ACL, saying that to contravene the ACL the conduct must have a trading or commercial character and that the present complaints did not satisfy that requirement ([585]). His Honour contrasted the exercise of corporate powers of CHB with commercial dealings between CHB and its shareholders.
In any event, even if his Honour had been satisfied that such a claim was available, he said that there was no satisfactory evidence that the price paid by CTP was less than what the Park was in fact worth (and even if there had been, there would be a question as to how if at all this translated into recoverable individual losses for the appellants) ([586]).
Finally, under the consideration of monetary claims against the directors, his Honour considered the claim in relation to post-sale conduct (from [587]). His Honour noted that the pleading relied on three different alleged contraventions of the ACL: undue harassment or coercion (s 50); misleading or deceptive conduct (s 18); and unconscionable conduct (s 21).
His Honour accepted the submissions made for the Kelly-Booker respondents that the correspondence was no more than a statement of the legal position being taken by Ms Kelly and Mr Booker and did not amount to any of those contraventions; but in any event there was no evidence of any action taken in reliance on any of the conduct (such as entry into an RSA) and hence no damage (at [591]). Further, his Honour expressed the view that conduct involving the assertion of a legal conclusion does not become misleading or deceptive, or a form of harassment or unconscionable, just because the asserted conclusion is later rejected by the court. It was noted that the assertions made by Ms Kelly and Mr Booker were made in an adversarial context; and that it was not alleged that they lacked a bona fide belief that they were entitled to make the assertions ([592]).
As to the letters written by their solicitor, his Honour said that the claims based on those were particularly problematic; saying that it was questionable whether they were even conduct in trade or commerce ([593]). As to the pleaded claim of harassment and coercion arising out of the altercation between Mrs Susan Kelly and Mr Booker, his Honour said that it was not necessary to go into that allegation, noting that there was no allegation that Mrs Kelly or any of the other appellants took any relevant action as a result of the incident ([594]).
From [595], his Honour dealt with the monetary claims against the Administrators (which it is not necessary here to summarise).
Then, at [656] his Honour summarised his conclusions as follows: 1. the plaintiffs' claims to equitable proprietary interests in their sites fail; 2. so too do the plaintiffs' claims as shareholders to have the transfer of the Part to CTP rescinded; 3. there is no utility in the declaration sought that the plaintiffs' cabins are not "for any purpose" fixtures; 4. some actions by the Directors were oppressive and the conduct of CHB's affairs has generally also been oppressive, but none of the relief against oppression expressly claimed in the statement of claim is appropriate; 5. the plaintiffs' monetary claims against the Kelly-Booker parties fail; 6. the plaintiffs' monetary claims against the Administrators fail.
As a consequence of the conclusion in relation to oppression, his Honour gave the appellants the opportunity to seek an order for the winding up of CHB (which, as adverted to above, they took up but about which they now complain) but said that otherwise the claims against the Kelly-Booker respondents should be dismissed as should the claims against the Administrators. Questions of discharge of the cross-undertakings that had been given and freezing orders that had been made, and as to costs, were left to be dealt with after the parties had had an opportunity to consider the appropriate orders.
Finally, his Honour noted that the hearing had been disjointed and difficult; and that the result (a disappointment for the appellants) reflected the way in which the appellants' case was pleaded and presented to the Court (see at [659]-[663]). No doubt of some concern to the appellants should be his Honour's obiter observation that, had the s 247A proceedings been constituted as oppression proceedings, the whole outcome could well have been different ([663]).
The appellants note that his Honour, in the course of his reasons, said that the structure adopted by Ms Kelly, under which all of the income associated with the Park was treated as income of HBS, so that CHB had no income, was arguably incorrect ([545]); and that "It would seem to follow that, to the extent that there was a shortfall between the ongoing legal fees and the site fee income, HBS was obliged to meet the shortfall" ([548]). They also note that his Honour said that "CHB was put into administration in highly suspicious circumstances" ([552]) and that "The possibility remains that a "sham administration" claim could still be made against the Directors in future, on CHB's behalf by a liquidator if one is appointed" ([554]).

[20]

Grounds of Appeal

During the course of oral submissions, the appellants abandoned two of the grounds of appeal (Grounds 7 and 8 as to the credit findings made in respect of Ms Kelly and Mr Booker; see AT 11.11), although they retain some complaints as to the credit findings in the context of Ground 9.
The remaining grounds that are pressed commence from Ground 9 (paragraphs 1-6 of the Grounds of Appeal not being grounds as such). They fall broadly into the following categories (as indicated by the headings in the notice of appeal): complaint as to the finding that the appellants were not promised ownership of portions of land (Ground 9); complaint as to the rejection by the primary judge of the contentions raised as to the sale of the Park to CTP (Grounds 10-14); complaint as to the dismissal of the appellants' misleading and deceptive conduct claim (Grounds 15-16); complaint as to the dismissal of the appellants' unconscionable conduct claim (Grounds 17-19); complaint as to the rejection of the appellants' harassment and coercion claim (Ground 20); and complaint as to the rejection of the appellants' claim for compensation (grounds 21-23).
The orders sought by the appellants, relevantly, include: O3 The First, Second, Third and Fourth Respondents to pay compensation to each Appellant for harassment and coercion, misleading or deceptive conduct and unconscionable conduct, in the amount of $200,000 or such other amount as the Court deems appropriate. O3A The Second Respondent [CTP] to transfer all of its right, title and interest in lots 130 and 131 of DP 728787 (the Land) to the First Respondent [CHB]. O3B The First Respondent to transfer to each Appellant, as tenants in common, a fraction of the Land calculated by dividing the area of Land specified for each Appellant's allotment at the time of purchase by the total area of the Land. O3C Orders pursuant to CA section 233 or 1324 and/or Australian Consumer Law Part 5-2 having the effect of putting the Appellants back into the position they would be in but for the misconduct of the Respondents. O4 The First, Third and Fourth respondents to buy the Coolah Home Base Pty Ltd shares and/or cabins of any Appellants who so elect. O5 The Supreme Court of NSW to conduct an enquiry to determine the value of shares and cabins referenced by O4 and any other loss referenced by O3C.
The Kelly-Booker respondents' Notice of Contention raises the sole ground: 1. In relation to Orders O3A and O3B, as set out in the proposed Third Amended Notice of Appeal, that relief should be refused because, as the registered proprietor of the Park, Coolah Tourist Park Pty Ltd (the second respondent) has indefeasible title by virtue of ss 42 and 43 of the Real Property Act 1900 (NSW) , which issue the learned trial judge held he did not need to decide (J [436]).

[21]

Appellants' submissions

Before addressing sequentially the grounds of appeal in the groups identified above, I make the following observations.
First, a written outline of submissions was filed on 22 December 2023, to which Court Book references were added on 4 March 2024. Those submissions comprised 20 pages, compliant with the rules for the filing of written submissions in this Court. However, at the outset of the appellants' oral submissions, the solicitor appearing for the appellants handed up what was described as an Aide Memoire (of some 59 pages). The description of this as an Aide Memoire appears to have been a belated attempt to circumvent the page limit for submissions, since the label "Aide Memoire" was affixed over what was originally labelled "Submissions". It is not acceptable, as pointed out during the hearing of the appeal, for parties to seek to circumvent the court rules as to the length and format of written submissions on appeal simply by re-labelling impermissibly lengthy submissions as an "Aide Memoire" and presenting this to the Court at the commencement of the hearing of the appeal (and unhelpful to do so with no advance notice).
Second, the written outline of submissions showed a propensity of the appellants to make sweeping assertions or generalisations not borne out by reference to the material before the Court (and generally abandoned when tested by the Court). So, for example, when summarising the grounds for the appeal, the appellants in their written submissions asserted that the primary judge found that the directors "had unlawfully misappropriated all the capital and income of CHB for themselves, that they had dishonestly gained control of the company and they had oppressed the minority" (at [1]). There is no finding of dishonesty in the principal judgment; certainly, the appellants' solicitor was unable to point to one (beyond suggesting that the finding of oppressive conduct itself amounted to dishonesty (AT 7.46)). It is trite to note that there may be oppressive conduct that does not involve dishonesty, as such; and that allegations of fraud or dishonesty are serious allegations and ought only to be made where there is a proper basis for the allegation. The assertion that there was a finding of dishonesty was withdrawn in oral submissions. Similarly, the appellants' submissions made assertions, in the context of the challenge to his Honour's credit findings as to Ms Kelly and Mr Booker (ultimately abandoned), as to tampering with evidence and misleading of the Court during the trial. Again, those are serious allegations that should not lightly be made (and these were also ultimately not pressed).
There were also numerous instances where the appellants criticised the primary judge for failing properly to consider matters or to give reasons but where the appellants ultimately conceded that his Honour had in fact given reasons (the appellants' real complaint being as to the adequacy or sufficiency of those reasons or their correctness).
Finally, the appellants' submissions in various instances pay insufficient regard to the pleaded case (such as the complaint as to the alleged 80% rule representation and the raising again of the "sham administration" allegation, that his Honour noted was not pleaded and for which leave to amend was not granted).

[23]

Ground 9 - Promise of Ownership of Allotments

The complaint raised by Ground 9 is as to the finding (at [178]-[188]) that the appellants were not promised ownership of portions of land as well as shares in CHB "when they purchased allotments at Coolah Home Base". As noted earlier, there is no challenge to the finding that the allotment agreements into which the appellants entered were not contracts for the sale of land. The complaint overlaps with the claims for misleading and deceptive conduct and unconscionable conduct insofar as the appellants rely on alleged representations as to the nature of what the appellants were buying as part of the conduct the subject of those claims. Promise of Ownership of Allotments 9 The primary judge erred by finding (J1.187-188) that the Plaintiffs were not promised ownership of sites as land as well as shares in CHB Pty Ltd when they purchased allotments at Coolah Home Base, on the following grounds: a) Incorrectly concluding (J1.161) that "The Plaintiffs' case was based on witness testimony" when the Plaintiffs' case also included extensive additional evidence; b) Failing to properly consider, or give reasons for rejecting, evidence of how Ms Kelly and Mr Booker promoted or described the venture which, as his Honour said at J1.169, is "indirect evidence of what they would likely have said orally" in pre- contractual negotiations; c) Failing to properly consider the testimony of the Plaintiffs or give reasons for rejecting that evidence; d) The finding is contrary to evidence cited by the primary judge, including: [J1.171] reference to "ownership of your allotment" [J1.176] ... The Company is treated as a "Real Estate Company" that subdivides specified Allotments or Sites in The Park to individual Shareholders by way of "Company Title". [J1.177] ... portions of the real estate are sub-divided between the company's shareholders. e) The finding that although "It is true that some of the brochures and slides contained statements which, on their own, suggested that the Plaintiffs would be getting a share in the land itself" the Plaintiffs were not promised ownership of sites as land as well as shares in CHB Pty Ltd, because the fact that "the brochures and slides did clearly indicate that the Plaintiffs were to receive shares in a company which owned the Park" (J1.189) was an irrelevant consideration because receiving shares in the company is not mutually exclusive with owning land. f) Preferring the evidence of the Directors to that of the Plaintiffs because the fact that it accurately reflected the legal position (J1.182), was an irrelevant consideration; g) Finding that no representation as to ownership of land was made in any of the purchase agreements (J1.188) in circumstances where some of the written agreements unambiguously make such representations, including the Tait agreement discussed at J1.395-396 and the Waugh agreement to which the primary judge does not refer; h) Rejecting the oral testimony of all Plaintiffs (J1.190) without giving sufficient reasons and in circumstances where the rejection is contrary to compelling inferences; i) Incorrectly finding (J1.398) "First, the agreement did not specify the precise location and dimensions of the Allotment." when in fact the agreement referred to the dimensions as "17 x 16 metres" and location of the allotment is identified on a plan included in Schedule 4 of the CHB Constitution to which the agreement refers; j) Incorrectly giving weight to considerations which are not relevant to the question of whether the Plaintiffs were promised ownership of sites as land, including: i. [J1.398] (No provisions for completing the conveyance) ii. [J1.399] (No access to allotments) iii. [J1.400] (Subdivision impossible) iv. [J1.401] (Impossibility of absolute ownership) v. [J1.403] (Share of the land would be legally incoherent) k) Finding (J1.417) that even if a share of the land were promised, specific performance of the agreements would be impossible because subdivision of the land is not possible from a planning point of view, in circumstances where the relief sought is not subdivision but tenancy in common as a practical means of delivering the substance of the promise; l) Finding (J1.432) that the Plaintiffs did not plead relief which would overcome "the practical problem with subdividing the park" and that the Plaintiffs sought to make a claim for joint tenancy in circumstances where the TASOC seeks relief in the form of tenancy in common [at R10(c)] and no claim was made for joint tenancy or subdivision; m) Giving undue weight to the legal and technical realities of the arrangement and failing to consider, or have sufficient regard, to the evidence of the plaintiffs' evidence of what they understood they were offered; n) Rejecting all 18 Plaintiffs' claims as a class in circumstances where the evidence of each was substantially different;
The conclusion that his Honour reached in this regard was that no such representation was made in any of the purchase agreements nor was any such representation made in the pre-contractual negotiations ([188]); his Honour referring to the written promotional materials (at [189]) and the oral representations at [190]). Further, and significantly for any claim for damages in relation to loss allegedly sustained as a result of the alleged representation, his Honour was not satisfied that the appellants in fact believed they would be receiving ownership of their sites (nor would any such belief have been reasonably based on any promises or representations by Ms Kelly or Mr Booker) ([190]). That conclusion is not challenged expressly in any of the grounds of appeal (and the appellants maintain their stance that reliance on the alleged representation is not necessary to be established in order for them to obtain the relief they seek).

[24]

Appellants' submissions

Ground 9, as framed, raises 14 different sub-grounds for the contention that his Honour erred as to the finding that there was no promise as to ownership of the sites as land as well as for shares in CHB. I address those seriatim in due course. However, by way of general summary I note that in the appellants' written outline of submissions those sub-grounds are addressed in two groups: first, complaints that his Honour wrongly discounted relevant evidence and, second, that his Honour gave undue weight to irrelevant considerations.
The complaint that relevant evidence was wrongly discounted relates to rejection of the appellants' evidence as to the representations said to have been made to them; and includes both complaint that his Honour failed properly to consider the appellants' testimony or to give reasons (in oral submissions this was rephrased as failure to give "sufficient" reasons (see AT 37.17-31)) for rejecting that evidence; and complaint as to the observation by his Honour (at [161]) that their case "was based on witness testimony", the appellants pointing to the "extensive additional evidence" referred to in their written submissions of promotion of the venture.
The appellants cavil with the finding that no representation as to ownership of land was made in any of the purchase agreements ([188]), pointing to statements in the written agreements, including the Tait agreement (see at [395]-[396] of the principal judgment) and cl 33(b) of the Waugh agreement (to which they complain that the primary judge did not refer) and the statement in that agreement that "The Purchaser will purchase, and the Vendor will sell, Allotment [xxx]".
The appellants contend that their oral testimony painted a consistent and credible picture that all 18 of them had been promised that they were being sold land; and they complain that the primary judge rejected this testimony summarily "as a class" even though the evidence of each was substantially different (noting [190] of the principal judgment). By way of example, the appellants refer to the following oral testimony, in each case in chief, of: Ms Brown (at T 14.49); Ms Tait (at T 79.15); Ms Susan Kelly (at T 173.35); Ms Townsend (at T 243.36); Ms Vale (at T 301.17); Ms Cook (at T 326.25); Ms Axtell (at T 349.44); Mr Squire (at T 531.28); and Mr James (at T 554.10; T 558.39; T 560.9; T 571.27). Pausing here, what this submission signally fails to take into account is the import of cross-examination on that testimony (which was addressed in the defence counsel's submissions that were whole-heartedly endorsed by the primary judge).
As to the contention that his Honour gave undue weight to irrelevant considerations, the appellants argue that the "legal and technical realities" of the arrangement were irrelevant to the question whether they were promised ownership of sites as land. (Those legal realities were, however, fundamental to the finding that the arrangement was not one for the sale of land as the appellants had also contended.)
The appellants argue that the extensive cross-examination as to their belief or understanding of what they were buying when they entered into allotment agreements with CHB produced compelling evidence that they have little understanding of real property legal principles but it is submitted that they were all clear that they believed, as a result of what was communicated by the directors to them and on the faith of which they paid for land "with the shares thrown in", that they had more than a mere licence, namely an interest in the land itself, as a core part of the promised "real estate security" for their retirement. The Kelly-Booker respondents challenge this proposition (as explained in due course). In reply submissions, the appellants maintain that, although the legal reality of the structure was that of a company title arrangement, they were led to believe that they were buying land which offered "real estate security" guaranteeing that it could not be taken away from them. They point out that Ms Kelly herself mistakenly held the belief (until at least November 2018) that the company title structure conferred ownership of allotments and cabins in the caravan park on the shareholders (referring to Ms Kelly's affidavit sworn 20 November 2018). The appellants say that this is entirely consistent with the appellants' claim that they were misled into believing that, as well as buying a share in the company, they were buying land with security of ownership.
The appellants identify the "irrelevant considerations" to which they say his Honour wrongly gave weight as the following.
First, as to the agreements: (at [398]) that the agreement did not specify the precise location and dimensions of the Allotment (the appellants here noting that the allotment agreements referred to the dimensions of the Allotment (such as "17 x 16 metres") and that the location of the allotment is identified on a plan included in Schedule 4 of the CHB Constitution to which the agreement refers). The appellants add to this the following matters to which his Honour referred: (at [398]) that there were no provisions for completing the conveyance; (at [399]) that there was no access to allotments; (at [400]) that subdivision was impossible; (at [401]) the impossibility of absolute ownership; and (at [403]) that a share of the land would be legally incoherent.
Second, the finding (at [417]) that, even if a share of the land were promised, specific performance of the agreements would be impossible because subdivision of the land is not possible from a planning point of view. The appellants say that this is irrelevant because the relief sought was not subdivision but tenancy in common "as a practical means of delivering the substance of the promise". Pausing here, the difficulty with this submission is that, on their own case, a tenancy in common was not what was promised to the appellants. However, the appellants maintain that the primary judge had a duty to fashion the best relief that approximated that to which they were promised.
Third, and related to the above, the finding (at [432]) that the appellants did not plead relief which would overcome "the practical problem with subdividing the park" and that the appellants sought to make a claim for joint tenancy. The appellants say that the relief sought was in the form of tenancy in common (referring to their pleading at R10(c)) and that no claim was made for joint tenancy or subdivision.
Fourth, the finding that (although some of the brochures and slides contained statements which, on their own, suggested that the appellants would be getting a share in the land itself) the appellants were not promised ownership of sites as land as well as shares in CHB because "the brochures and slides did clearly indicate that the Plaintiffs were to receive shares in a company which owned the Park" ([189]) (said by the appellants to be an irrelevant finding).
Fifth, that his Honour preferred the evidence of the directors to that of the appellants because it accurately reflected the legal position, broadly a "Company Title" arrangement ([182]). The appellants say that this was an irrelevant consideration in assessing their claim that they were promised they were buying some sort of real estate.
The appellants maintain that his Honour's findings were contrary to the evidence as a whole, such that they were glaringly improbable and contrary to the compelling inferences from the evidence. In reply submissions, they maintain their assertion as to the characterisation of the statements in the promotional materials and the evidence of oral representations. The appellants say that the promotional materials, when viewed as a whole, convey the idea that CHB had bought the Park so that retirees could buy allotments with "real estate security" and that they would also get a share in the company which owns the common property and further develops the Park. Complaint is made that their attention was not drawn to the "fine print" within the Constitution which might negate this impression; that they were not provided with the Constitution to facilitate such enquiry; and that there was no encouragement (nor any requirement) for them to seek legal advice before entering into the transaction (though those matters were not part of the pleaded allegations).

[25]

Kelly-Booker respondents' submissions

The Kelly-Booker respondents emphasise his Honour's acceptance of their analysis in closing submissions of each appellant's evidence, to which his Honour found that counsel for the appellants "had no real reply" (at [183] of the principal judgment).
They point to the terms of the various types of allotment agreements (summarised earlier) and maintain their position that the contracts, on their proper construction did not convey any interest in any of the allotments (as his Honour found at [394]-[416]); nor did they represent as much.
As to the written promotional material, the Kelly-Booker respondents say that, to the extent that it was seen by any of the appellants, when read as a whole it did not convey a representation that any of the appellants would be acquiring an interest in land (as opposed to receiving shares in CHB which owned the Park) (see at [189]). The Kelly-Booker respondents complain that the appellants have selected fragmentary statements from the agreements, divorced from their context, and characterised them as misleading (noting that this approach is decried in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 at [109] (McHugh J); Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 (Campbell v Backoffice) at [102] (Gummow, Hayne, Heydon and Kiefel JJ)). The Kelly-Booker respondents say that the promotional material made clear, when read as a whole, that what was being purchased was a share in CHB (which entity would own the Park), and that such a share would convey rights of exclusive use and enjoyment of an allotment. The Kelly-Booker respondents argue that words such as "share in the real estate" or "share in the land" are consistent with the promotion of a company title scheme; and do not convey a promise to convey title to an allotment.
The Kelly-Booker respondents point out that none of the appellants was able to produce any actual copies of the promotional materials which they saw at the time of purchase (referring to [163] of the principal judgment) though some gave evidence of seeing the PowerPoint presentations (for example, Ms Cook (at 1/09/2021; T 310.1-12), Mrs Susan Kelly (at 31/08/2021; T 172.35-173.03), and Mr Squire (at 3/09/2021; T 527.8-50)). However, the Kelly-Booker respondents say that, on the whole, the appellants could not point to one document over another, and that this was a critical omission given that the appellants bore the onus of proving what was represented to them.
As to the evidence given by the appellants of what was represented to them orally prior to their entry into the contracts and their understanding of what they were acquiring, the Kelly-Booker respondents submit that this does not support the appellants' proposition that they were "all clear that they believed as a result of what was communicated by the directors" that they had an "interest in the land itself", with the "shares thrown in". In that regard, the Kelly-Booker respondents refer to the following evidence given by the respective appellants, noting that there was no evidence given by any of Mr Kelly, Mrs Squire and Mr Townsend.
As to Mr McMillan, that he did not depose to any representation that he was acquiring land or an interest in land (referring to [8] of his affidavit affirmed 5 February 2020 at [8]). They also point to his authorship of documents acknowledging that he did not own his allotment and understood the company title system in place in relation to CHB and the Park. In that regard, they point to the 24 October 2014 "Memo of Understanding" prepared and executed by Mr McMillan (noting 2/08/2021; T 400.14-401.21), which stated that Mr and Mrs McMillan agreed that they "do not 'own' Lot 52 as such, they simply own a share in CHB which owns all of the real estate" (though, this of course post-dates his acquisition of a share in CHB).
As to Mr Darch, his evidence in cross-examination that he understood at the time of entering into his purchase contract that he was purchasing a share in CHB and that it was by reason of that share he would get the right to exclusive occupancy of his allotment (3/09/2021; T 473.15-474.20).
As to Ms Waugh, her acceptance that she had always known that CHB owned all of the Park and that the only rights she had were because she held a share in CHB, which was the reason why she could use and enjoy exclusively her allotment (31/08/2021; T 136.33-47).
As to Ms Vale, her denial in cross-examination of any mention of shares in CHB (citing 1/09/2021; T 239.05; T 280.34-40; T 282.23-25), notwithstanding giving such evidence in her affidavit affirmed 25 March 2020 at [5] and her general lack of recollection (here noting their closing submissions at trial at [151]-[164], which cited several excerpts of the transcript, including 1/09/2021; T 282.31-41; T 287.1-23; T 287.45-50; T 288.26-28).
As to Ms Cook, her evidence that she attended a presentation, prior to entering into any contract, at which the PowerPoint slides were presented (1/09/2021; T 310.1-12); and that Ms Kelly told her that if she bought a share in CHB, she would get exclusive use to her chosen allotment, as well as the right to use the communal property (1/09/2021; T 323.34-48).
As to Ms Tait, her acceptance in cross-examination that, when she entered into her purchase agreement, she understood that her rights in relation to her block of land derived from her shareholding in CHB (30/08/2021; T 102.39-41; T 104.33-35).
As to Ms Axtell, that she was told, prior to entering into any purchase contract, that purchasing an allotment was "similar to strata title" [3]; that she was told about the 80% agreement provision in CHB's Constitution, which she found to be "very comforting", and that she was unable to explain how knowledge of that provision and its effect reconciled with a belief that she directly owned her allotment (2/08/2021; T 347.33-348.35).
As to Ms Brown, her evidence in chief that Ms Kelly told her, prior to her entering into any transaction, that "shares were available for purchase and that the share, if I bought a share - of which there were a total of 62 - if I bought one of these shares, I would own a block of land" (30/08/2021; T 14.48-15.03); and that she accepted in cross-examination that when she signed her purchase agreement, she understood that her rights in relation to her allotment derived from her share in CHB (30/08/2021; T 57.38-41).
As to Mr James, his evidence that he was told by Mr Booker by email (prior to his purchase) that he was entering into a "share transaction", and that he was "buying a share in the company that owns the property which entitles you to ownership of your allotment".
As to Mrs Susan Kelly, that his Honour accepted their submissions as to the highly unsatisfactory nature of her evidence (the Kelly-Booker respondents again noting their closing submissions at trial at [201]-[208]), and they say that this was compounded by the fact that she and her husband (Mr Kelly) signed a share sale deed, which manifestly communicated that what was being purchased was a share in CHB (not an interest in land). Similarly, they note that Mr Sheahan executed a formal share sale deed, the terms of which are inconsistent with any belief that Mr Sheahan believed he was acquiring an interest in land; and they point out that Mr Sheahan gave no evidence of any such representation having been made to him (noting [5]-[6] of his affidavit).
As to Mrs McMillan's evidence, that in cross-examination she had no recollection (contrary to what she had asserted at [2] of her affidavit affirmed 2 September 2021) of either of the directors discussing title arrangements in respect of the allotments, or anyone saying that she would "get title to [her land]" (8/09/2021; T 611.47-612.15).
As to Ms Robertson's evidence, her acceptance that she understood, both prior to and after entering into her purchase contract, that her right to exclusive use to her allotment derived from her A-Class share in CHB (8/09/2021; T 592.43-593.05; T 598.04-28).
As to Mr Squire's evidence, that he attended a presentation at which the PowerPoint slides were shown to him prior to entering into any contract (3/09/2021; T 526.10-15) and that he conceded in cross-examination that he understood that it was by purchasing a share in CHB that he would have the right to exclusive use of his allotment (3/09/2021; T 528.25-46). The Kelly-Booker respondents note that, at the time of entering into their purchase contract, Ms Kelly sent an email to Mr Squire answering queries he had raised, which stated (inter alia) that "I understand the law does not provide for a cooling off period for the purchase of shares however we have demonstrated in the past that if someone does not fit or is unhappy with their purchase, we [will] buy their share back".
Finally, as to Mrs Townsend (who, with her husband, acquired their share from Ms Parsell not CHB or an entity associated therewith), that her evidence was that she was "purchasing…an estate under a company", with her rights "under the umbrella of the company" (1/09/2021; T 250.04; T 251.13-17).
The Kelly-Booker respondents say that the promotional material from 2012 expressly informed people that CHB purchased and owned the Park and that what was for sale were shares in CHB, which conferred rights in relation to allotments and that the same is true of other contemporaneous emails and documents. The Kelly-Booker respondents also refer to Ms Kelly's written report delivered at the first AGM of CHB on 6 August 2013, and the document entitled "The CHB Dream Explained", as gainsaying the assertion by the appellants as to their understanding of the transactions.
The Kelly-Booker respondents say that these matters (as opposed to any assessment of credit) properly drove his Honour's consideration as to what was orally represented to the appellants; and that it reflected the state of the documentary evidence, and the inherent probabilities flowing therefrom. They submit that the findings were not glaring improbable or contrary to compelling inferences. As to the proposition that his Honour took into account any irrelevant considerations, they say that the matters referred to in the appellants' submissions at [14]-[16] concerned the appellants' contractual claim to a proprietary interest in the Park, not the representational case brought by the appellants.

[26]

Reply submissions

In their reply submissions, the appellants respond to the particular documents to which the Kelly-Booker respondents have referred in relation to particular appellants by pointing out the following.
As to Mr McMillan, his evidence was that at the time of the purchase he did not know the nature of the ownership of allotments and that after conducting some research he determined that "CHB is a 'Real Estate Company' based on Company Title" (noting [15] of his affidavit affirmed 5 February 2020) and he then helped Ms Kelly produce "The CHB Dream Explained" document. The appellants submit that Mr McMillan's further investigations confirmed the view that he was obtaining some sort of title to the allotments and that an assumption as to "company title" conferring some title to a piece of land was not an unreasonable assumption for someone without legal training. The appellants also emphasise his belief as to company title being some sort of subdivision regime consistent with the wording of the CHB Dream Explained document (citing his affidavit at [16]). The appellants say that Mr McMillan's evidence that he thought he was buying title to land is consistent with Ms Kelly's belief that company title conferred ownership of allotments.
As to the correspondence between Mr James and Mr Booker, in which Mr Booker stated that he was buying "a share in the company that owns the property which entitles you to ownership of your allotment", the appellants point to Mr James' oral evidence as to the statements made by Mr Booker as to the purchase of land and ownership of land (see 3/09/2021; T 554.10; 558.39; T 560.9; T 571.27); and they say that Mr James' belief that he had obtained title to his allotment was reinforced when his application for a "First Homeowner Grant" was granted (referring to his affidavit affirmed 2 September 2021 at [8]).
As to the position of Mr and Mrs Squire, the appellants emphasise that in Ms Kelly's email prior to the Squires' purchase, Ms Kelly responded to a question as to whether the directors were shareholders or owners at [4] by referring to their purchase of "the residence and certain blocks as A class shareholders, at the same rate as paid by other A class shareholders". (The appellants also say that Ms Kelly's response to Mr Squire's concern as to the controlling shareholding of the directors (at [4]) was misleading (see above)); and they emphasise the reference in the email to the possibility of buy back of the allotment (as an alternative to putting the share on the market for sale) (at [7]); and to the statement that "Based on cost price and area, we sold initially at $65 to people who purchased prior to settlement" (at [1]) as being consistent with selling land by the square metre.

[27]

Determination

At the outset, I note that much emphasis was made by the appellants' solicitor in oral submissions on the proposition that there is no "legal title" or proprietary title known as "company title". The reference to company title, however, must be understood, in essence, as referring to the structure whereby the company is the legal owner (i.e., registered proprietor) of land and shareholders of the company obtain an entitlement to exclusive use and occupation of a particular part of the building or land by reason of the rights conferred by their share(s). So, for example, see the definitions of company title in The Encyclopaedic Australian Legal Dictionary (published by LexisNexis Australia) and The Essential Guide to Mortgage Law in Australia (2013, 2nd ed, Lexis Nexis Australia) set out at [1.42]. Such a concept is reflected in provisions such as s 34A(4) of the Local Court Act 2007 (NSW) (LGA) (Jurisdiction in company title home unit disputes), considered in M Jebeile, 'Local Court Amendment (Company Title Home Unit Disputes) Act' 2013 (2013) 27(7) Australian Property Law Bulletin 144; and s 8(2) of the Residential (Land Lease) Communities Act 2013 (NSW). Of some interest, perhaps, is the commentary by M Jebeile that: Company title was the most common form of multi storey subdivision in NSW prior to the introduction of strata titles legislation in 1961. In 2007, the New South Wales Law Reform Commission (the commission) estimated that there are approximately 820 company title buildings located in NSW.
See also the definition of company title in the interpretation section (s 4(1)) of the Defence Service Homes Act 1918 (Cth).
There can be no dispute that what the appellants obtained in the present case was not a legal estate or interest in land but an entitlement to exclusive use and occupation deriving from their shares in CHB; and there is no challenge to that ruling. The appellants now appear to accept this (insofar as they do not challenge the finding on this issue) but they seem to place emphasis on the non-existence of company title as a particular form of proprietary "title" in order to support their submissions as to the appellants' understanding of what was promised to them.
Much complaint was made that what was acquired did not give the appellants "real estate security". However, in the context of what was being acquired, the appellants did gain exclusive rights of occupation over "their" allotments which did give them security of tenure at least to the extent that those rights could only be affected by reference to the CHB Constitution or events such as the administration that ultimately occurred. It is worth noting that the reference to "real estate security" in some of the documents was contrasted with a position where developers or investors would have interests in the allotments.
Turning to the specific complaints raised by ground 9, I am of the following view.
As to (a), the contention that his Honour incorrectly concluded at [161] that the appellants' case was based on witness testimony, it is clear that what his Honour was referring to in that context was their testimony as to their understanding of what they were acquiring. His Honour made clear his understanding that the claimed belief of the appellants in this regard was based not only on what they said had been represented to them orally but also on what they understood from the purchase contracts and the promotional material (to the extent that they had seen it). His Honour considered in some detail the claim that representations were conveyed by the terms of the purchase contracts themselves and in the promotional material. The criticism made of the first sentence of [161] does not fairly reflect his Honour's analysis of the representation case.
As to (b), the complaint as to a failure properly to consider, or give reasons for rejecting, the evidence of how Ms Kelly or Mr Booker promoted or described the venture is untenable. His Honour carefully considered the written promotional material and the evidence from both sides as to what was orally represented to the appellants. His Honour's reason for rejecting the appellants' contention as to what was orally promoted or described to them is succinctly and sufficiently set out at [190]. His Honour was not satisfied that any oral representations would have gone further than the written promotional materials and accepted both the submission by counsel for the Kelly-Booker respondents as to the inherent probabilities and contemporaneous evidence being against the appellants formulation of the alleged representation and also the submission made as to the testimonial evidence that had been given.
As to (c), the complaint of failure to consider the appellants' testimony or to give reasons for rejecting it, again this is untenable. His Honour expressly referred to and adopted what he described as defence counsel's "withering analysis" of that evidence (see at [180]; [190]). By reference to the express adoption of defence counsel's very detailed analysis of the evidence, his Honour's reasoning for the conclusion that the testimonial evidence of the appellants as to the representations ought be rejected is sufficiently exposed. For the same reason, the complaint that his Honour failed properly to consider the appellants' testimony cannot be sustained.
As to (d), the complaint that the finding is contrary to the evidence identified by this sub-ground, that cannot be accepted. As to the statement (noted at [171] of the principal judgment) as to ownership of "your allotment", the text of the December 2012 email made clear that "You are buying a share in the company that owns the property which entitles you to ownership of your allotment". That clearly informs the purchaser that what is being acquired is a share in the company; that the company owns the property; and that the share confers rights in relation to the particular allotment. True it is that the right conferred is of exclusive occupation and use (not ownership in the strict legal sense) but the overall message is that what is being acquired is a share in the company.
As to the statement at [176] of the principal judgment (taken from the "CHB Dream Explained" document) which post-dated the last of the relevant sales, the statement quoted by the appellants is immediately followed by the statement that "This is the company that we, the shareholders own - this company owns the Park". Elsewhere in the document there is reference to the entitlement of the shareholder to "exclusive use and enjoyment" of the site/allotment. The statement that "They own it by virtue of company title" conveys the concept that it is through ownership of the share that the shareholders have rights in relation to the allotments. There is also the statement that a shareholder "sells their Site/Allotment" by selling their shares in the company.
As to the reference at [177] of the principal judgment to portions of the real estate being "subdivided" between the company's shareholders, this is in the context of an explanation of what is company title.
There is no doubt that there is scope for confusion or misunderstanding as to what is being acquired - i.e., as to how acquisition of a share in the company confers "ownership" of an allotment. However, his Honour took all those statements into account and concluded that it was clear that when read as a whole the appellants were to receive shares in a company that owned the Park (at [189]). That conclusion is not contrary to the evidence cited by his Honour. It is a conclusion as to the proper construction to be placed on the material before his Honour. The appellants' submission that "98%" of the documents conveyed the impression of ownership of land rather than of shares in a company was conceded to be impressionistic (AT 21.17-20). It does not establish error in his Honour's reasoning.
As to (e), the complaint as to the finding that the appellants were not promised ownership of land as well as sites because statements in the written material that the appellants were to receive shares amounted to an "irrelevant consideration", need only to be stated to be rejected. This submission is based on the proposition that receiving shares in a company is not mutually exclusive with owning land. It is hardly an irrelevant consideration that the appellants were being told they were acquiring shares in a company (which company owned the land) when considering whether what was represented to them was that they were acquiring ownership of land as well. That was the very point to be determined. It is inconsistent with a share in the company conferring exclusive rights of occupation and use that there would also be legal title to the parcel of land in respect of those very rights of occupation and use.
As to (f), the complaint that his Honour erred in preferring the evidence of the directors to that of the appellants (because the fact that it accurately reflected the legal position was an irrelevant consideration) misstates what his Honour was saying at [182]. What his Honour there referred to was the submission by counsel for the Kelly-Booker respondents that the evidence of the directors was inherently plausible because it accurately reflected the legal position and was consistent with what was recorded in the pre-litigation written evidence. At [183], his Honour observed that counsel for the appellants had no real reply to those submissions and that the oral response by the appellants' counsel when "provoked" to a handful of the points put by the Kelly-Booker respondents was perfunctory and unconvincing. In any event, the inherent plausibility or otherwise of a witness' evidence is hardly an irrelevant consideration when assessing whether that evidence should be accepted.
As to (g), this is a complaint as to the finding at [188] that no representation as to ownership of land was made in any of the purchase agreements in circumstances where some of the written agreements "unambiguously" made such representations, the appellants there referring to the Tait and Waugh agreements. His Honour's reasons for that finding were set out later in the judgment, when his Honour considered the wording of the agreements in addressing the appellants' claim to equitable proprietary interests in the sites and for specific performance (see from [394]).
His Honour considered the Tait agreement first, identifying that this form of CHB letter agreement was, from the appellants' point of view, the most favourable. It is not fair for the appellants to complain that there was no reference to the Waugh agreement. His Honour noted that the form of CHB letter agreement used for the Tait purchase was that used for purchases 6,7 and 8 - purchase 7 being that by Ms Waugh (see as noted at [40] above).
His Honour emphasised the wording of that form of CHB letter agreement emphasised by the appellants and the concession by counsel for the appellants that there was a statement that the purchase price "include[d]" one A class share in CHB corresponding to the allotment (at [396]) (the wording of the contract was "for" a specified numbered allotment). His Honour then noted the three arguments raised by counsel for the Kelly-Booker respondents against the appellants' construction, the most important of which in his Honour's view being the inconsistency between the provision that the CHB Constitution and by-laws were to apply to ownership of the Allotment and the concept of absolute ownership; and, again, that counsel for the appellants had no real answer to those arguments (see at [403]). His Honour concluded that it was implicit in the letter agreements for purchases 6, 7 and 8 (which, as noted, included the Tait and Waugh agreements) that the allotment was sold "as a share in" CHB ([404]).
His Honour then went on to consider the agreements for the remaining purchases (addressing separately the purchases where there was no written agreement in evidence).
There is no error demonstrated in his Honour's conclusion that properly construed the agreements made no representation as to ownership of land rather than providing, implicitly (or in the case of the share sale deeds) for the sale of a share in CHB (through which, by reference to the CHB Constitution and by-laws, "ownership" of the allotment was to be conferred).
As to (h), this is again a complaint as to the rejection of the oral testimony of "all" the appellants (at [190]), this time it being said that his Honour did not give "sufficient" reasons and in circumstances where the rejection of that testimony was "contrary to compelling inferences". His Honour's reasons were sufficiently exposed in the express acceptance by his Honour of the detailed submissions by counsel for the Kelly-Booker respondents as to that evidence. In the course of a lengthy judgment (understandably so given the "kitchen sink" approach evident in the pleading), it was not necessary for his Honour to set out verbatim those submissions before adopting them. I have considered those submissions and can discern no error in his Honour's acceptance of them.
Further, the appellants have not made good their complaint that the rejection of the appellants' testimony as to the representations (and, critically, as to their belief as to what they were acquiring) is contrary to compelling inferences. Insofar as that language echoes the test applicable when challenging findings based on credit (see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [29] (Gleeson CJ, Gummow and Kirby JJ)), it is relevant to note that there was not a wholesale challenge to the appellants' credit; rather, it was submitted (and his Honour appears to have accepted) that the evidence of the appellants was not reliable (and in some cases that the witnesses had been wholly discredited). In any event, a review of the evidence does not lead me to conclude that the rejection of the appellants' oral testimony in relation to the alleged representations was contrary to compelling inferences. In that regard, the evidence of various of the appellants as to their previous knowledge of conveyancing transactions is inconsistent with an understanding at the time that they were acquiring land as well as a share in CHB.
As to (i), the appellants complain that there was an incorrect finding at [398] that the agreement (there, his Honour was considering the Tait agreement as an example of the CHB letter agreements) did not specify the precise location and dimensions of the allotment. At [398], his Honour was not making a finding as such; rather, his Honour was summarising the first submission made by counsel for the Kelly-Booker respondents against the proposition that the subject matter of the purchase was the land itself.
It is clear that his Honour was aware that the Tait agreement described, in approximate terms, the total size of the allotment and that the allotment was 17 x 16 metres (those matters are included in the extracted provisions at [395]). Insofar as the appellants rely on the plan identified in Schedule 4 of the CHB Constitution as specifying the location of the allotment, and hence as rendering incorrect the "finding" that the precise location of the allotment was not specified in the purchase agreement for the Taits, this is somewhat ironic since the appellants in their reply submissions at [9] decry the reliance by the Kelly-Booker respondents on the terms of CHB's Constitution. The appellants there submit that reliance on terms of CHB's Constitution (in the context of whether the representation as to ownership of land was made in the purchase agreements) should be rejected because the Constitution was not provided prior to or at the time of entering into the contracts. (Indeed, the appellants say that an objective assessment of the conduct in light of all circumstances must include the failure of the directors or CHB to include a copy of the Constitution and the title documents for the land in the contracts, referring to the requirements in this regard under ASIC's disclosure requirements in Regulatory Guide 67 regulating sale of shares in company title real estate companies. Complaint is also made by the appellants that the directors and CHB failed to draw purchasers' attention to critical information or to comply with minimum disclosure obligations. There is, however, no pleaded claim relating to non-provision of the Constitution or non-disclosure of information in relation to company title prior to entry into the allotment agreements.)
In any event, the answer to the complaint at (i) is that [398] is not a finding as such; and, strictly speaking, the submission that the relevant form of letter agreement did not specify the "precise location and dimensions" of the specified allotment is correct, although that information could be discerned by reference to the CHB Constitution (which the agreement recorded applied to the "ongoing possession" of the allotment, as noted above).
As to (j), this is a complaint that his Honour incorrectly gave weight to considerations which were not relevant to the question whether the appellants were promised ownership of sites of land. As to those considerations, it is relevant to note that what was being considered at [394]ff of the principal judgment, in the context of the appellants' claim to equitable proprietary interests in the sites by virtue of the purchase agreements or by invocation of the principles of proprietary estoppel, was the submission by the appellants that the wording of agreements (other than the share sale deeds) was such as to make them contracts for the sale of the allotments as pieces of land. In that context, the matters considered at [398] (no provision in the contracts for completion of a conveyance of land); [399] (there being no provision for any right of access to the allotments which were landlocked within the Park); [400] (that, as his Honour observed was conceded by counsel for the appellants, subdivision to create separate titles for the allotments would have been impossible from a planning point of view); [401] (inconsistency between application of the Constitution and By-laws and the concept of absolute ownership - misstated in ground 9(j)(iv) as "impossibility of absolute ownership"); and [403] (that a contract for sale of both the share in a company title arrangement and the land itself would be legally incoherent), were hardly irrelevant considerations. Nor can it be said that they were irrelevant considerations to the question whether what was represented in the allotment agreements was that purchasers would acquire ownership of their sites as land, as well as a share in CHB.
As the appellants emphasised more than once, what is required in considering whether impugned conduct has a tendency to lead a person into error is an objective assessment of the conduct viewed as a whole in light of all the circumstances (citing Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 at [212]-[220] per Edelman J, sitting in the Federal Court as his Honour then was). Similarly, in considering whether the alleged representations were made in the purchase agreements, it was relevant for the primary judge to consider the statements made in the purchase agreements on which the appellants relied in the context of the whole of the purchase agreements.
As to (k), the complaint is that his Honour erred in finding at [417] that even if a share of the land were promised, specific performance of the agreements would be impossible (because subdivision of the land was not possible from a planning point of view). The appellants say that the relief sought was not a subdivision but, rather, a tenancy in common "as a practical means of delivering the substance of the promise". It is important to note here that [417] is headed "Specific Performance". It is directly responding to the claim for relief (see R10C) that CHB "give specific performance to [sic] the respective agreements between itself and each Plaintiff by performing the promise to sell each Plaintiff the agreed allotment of land".
True it is that other relief claimed in the amended pleading (see R10(c)) was an order (in addition to an order for the transfer by CTP of its interest in the Land to CHB) that CHB transfer to each appellant, as tenants in common, a fraction of the land calculated by dividing the area of land specified for each person's allotment at the time of purchase by the total area of the land. However, in light of the relief claimed in R10C (that being the relief sought at [7] of the pleading in relation to the allegations made as to the purchase of the land as well as shares) it is disingenuous for the appellants to say that they were not seeking an order for the subdivision of the land. What his Honour was making clear was that insofar as the appellants were seeking specific performance of agreements by which they contended each had been promised ownership of a specific portion of the Park corresponding to their allotment, then to do so would have required the land to be subdivided (which his Honour considered was impossible from a planning point of view). His Honour's reasoning was impeccable. Specific performance (technically of an executory contract) does not involve notional re-writing of the obligation to something that is a "practical means" of delivering the substance of the promise; and even accepting that statute authorised making orders in circumstances in which specific performance was unavailable, on no view of the appellants' case was it that they were promised that they would acquire, as tenants in common in fractional interests, the whole of the Park. His Honour noted that counsel for the appellants made no reply to this submission as to specific performance. The appellants did not grapple with this on appeal.
As to (l), this is a complaint as to the "finding" at [432] that the appellants did not plead relief which would overcome the practical problem with subdividing the Park. His Honour there noted that counsel for the appellants had only articulated a claim for joint tenancy after that practical problem (in relation to subdivision) was raised before the trial. The appellants complain that they sought to make a claim for joint tenancy in circumstances where the relief claimed at R10(C) was in the form of tenancy in common.
His Honour's consideration at [432] is in the section headed "Proprietary estoppel" and sub-heading "Relief".
His Honour's reference at [417] to the practical problem with subdividing the Park links to what was said at [424]-[426] as to the suggestion by counsel for the appellants that (where an entitlement of interest to land by way of proprietary estoppel had been established) an order could be made giving effect to the substance of the promise by way of a "proportional joint ownership of the Park" in favour of the appellants. His Honour there noted that an obvious difficulty with a joint tenancy would be that this would give each appellant rights over the Park as a whole (extending to all the other allotments and also the common property) and further that it would not in substance be anything like the same interest as the ownership of the allotment that had allegedly been promised. His Honour went on to record the submission that a practical problem would be that this would allow any of the joint owners to apply to have the Park sold under s 66G of the Conveyancing Act 1919 (NSW) (see at [426]); and that a fundamental problem was that there were owners of other shares in CHB who would be affected by such relief and had not been joined as parties to the proceedings ([427]).
There is no ground of appeal asserting error in relation to the refusal to permit the appellants at trial to articulate a joint tenancy claim; and, as the appellants themselves concede, the only claim for a proportional interest in the whole of the land in the pleading was as to tenancies in common. In any event, what [432] is dealing with relates to the relief claimed for proprietary estoppel, as to which his Honour concluded that the elements of promises or representations and detrimental reliance had not been made out ([421]). The appellants here challenge the finding as to representations not having been established but they do not challenge the finding as to no detrimental reliance (and, indeed, in the context of the misleading and deceptive conduct claim the appellants maintained the contention that it was not necessary to establish reliance at all).
At the hearing of the appeal, two related arguments were made by the appellants: first, that an order for restitution of the Park (ie that the property be transferred from the second respondent (CTP) back to the first respondent (CHB)) does not constitute a challenge to indefeasible title (with the appellant's solicitor describing indefeasibility as "quite irrelevant" at AT 112.4-5); and, second, that the re-transfer of land is not a matter of recission or restitution, but simply of "giv[ing] it back" to the first respondent (see at AT 112.6-7).
There was the following passage at AT 5.47-6.24, where the appellants' solicitor explained the position thus: VOGEL: It says there because the appellants do not challenge indefeasibility of title, nor voiding of the-- LEEMING JA: Aren't you seeking to take land away from its registered proprietor? VOGEL: No, we're seeking to order the registered proprietor to transfer it to another company. LEEMING JA: Aren't you seeking orders for the registered proprietor to transfer land? VOGEL: That's correct. LEEMING JA: How do you say that isn't challenging indefeasible title? VOGEL: I just say as a matter of law. We're not questioning that Coolah Tourist Park has title to the land. LEEMING JA: It just loses its land because of this Court's order? VOGEL: We're just saying that it's open to the Court to make an order that, as compensation for their wrongdoing, that they transfer the land, in exactly the same way it is open to the Court to make an order for monetary compensation. It doesn't question the validity of the title, nor does it require the voiding of anything, and it's an order that's open to the Court to make, certainly under the Australian Consumer Law. But we say also as a remedy for oppression under the Corporations Act.
At AT 112.3-7, Mr Vogel further stated: Finally, in relation to the transfer of the land, Mr Macauley quite irrelevantly brought up the subject again of indefeasibility and restitution, which are quite irrelevant. We say that the land is just an asset owned by the wrongdoing directors and the best remedy the Court could fashion is to order that they give it back to Coolah Home Base.
This was in response to earlier comments by counsel for the respondents, first at AT 99.32-46: Order 3(a) of the third amended notice of appeal seeks for the land to go back to CHB. His Honour dealt with that at judgment 437 and following. In my submission there's no error there that is, first and foremost, recission is not available because restitutio integrum cannot be affected, and the money that's been paid has been spent. … The second point is, and that's the notice of contention, is that CTP has indefeasible title. That only arises in a true sense if the Court were to find that the appellants had an interest in land, that is otherwise it's obvious they have indefeasible title.
The appellants submit in the "Aide Memoire" at [193] that the orders as to the transfer of property can be made as "a remedy for oppression under [s 232 of the Corporations Act] or remedy for beach of directors' duties under [s 1324 of the Corporations Act] of remedy for breaches of [ss 18 or 21 of the ACL]".
The gist of this submission appears to be that if the Court considers the re-transfer of the property (from CTP back to CHB) to be an appropriate remedy, it is not a matter of restitution of the property or recission of the transfer, but simply of entering an order requiring the second respondent to give the property back to the first respondent (which is apparently not a challenge to indefeasible title).
In Janice Gray et al, Property Law in New South Wales (LexisNexis, 5th ed, 2022) [8.25], indefeasibility is described as follows: Indefeasibility makes the interest one that is unable to be defeated by claims of prior defectiveness in the title. Hence, indefeasibility provides a protection or sanctity from erosion by certain other claims or interests. Although a registered interest in some ways parallels a legal interest (eg, it is a title considered to be good against the whole world), in other ways it is very different from a legal interest, particularly in relation to the doctrine of notice and methods of transfer. In summary, an indefeasible title is one that is unimpeachable in the face of pre-registration defects.
Section 42 of the Real Property Act 1900 (NSW) (RPA) provides: 42 Estate of registered proprietor paramount (1) Notwithstanding the existence in any other person of any estate or interest which but for this Act might be held to be paramount or to have priority, the registered proprietor for the time being of any estate or interest in land recorded in a folio of the Register shall, except in case of fraud, hold the same, subject to such other estates and interests and such entries, if any, as are recorded in that folio, but absolutely free from all other estates and interests that are not so recorded … … (3) This section prevails over any inconsistent provision of any other Act or law unless the inconsistent provision expressly provides that it is to have effect despite anything contained in this section.
Since 1967, the principle of "immediate indefeasibility" has been preferred, meaning that a proprietor is protected as soon as he or she is registered (see Frazer v Walker [1967] 1 AC 569 (Frazer v Walker), Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70 (Breskvar v Wall)). Registration of an interest and the indefeasibility that attaches by way of s 42 of the RPA cures a void instrument (per Breskvar v Wall at [386] per Barwick CJ)
CTP has registered title over the property. There are, of course, exceptions to indefeasibility, including, relevantly, the fraud exception and the in personam exception. (Possessory application and errors by misdescription are other, presently irrelevant, exceptions to indefeasibility.)
The Kelly-Booker respondents (see at AT 100.11-101.4) acknowledge that fraud on the part of the registered proprietor is an exception to indefeasibility (see RPA ss 42(1), 43(1)). This definition of fraud is limited by s 43(1) which excludes actual and constructive notice; as such, a registered proprietor defeats interests of which they have actual or constructive notice. An allegation of fraud does not appear to be part of the appellants' argument here, however.
The in personam claim exception to indefeasibility - that the Torrens system will accommodate rights in personam - was acknowledged by the Privy Council in Frazer v Walker at 585: "[registration] in no way denies the right of a plaintiff to bring against a registered proprietor a claim in personam, founded in law or equity, for such relief as a court acting in personam may grant". This was also addressed by counsel for the Kelly-Booker respondents, who noted that while the appellants may have a personal claim against CHB or the directors of CTP, they would not have a personal claim against CTP; relevantly, note AT 100.39-43, 100.47-101.4: The High Court has said as well in Farah that it doesn't matter for example a knowing receipt claim will not get you there. Absent fraud or involvement in a dishonest and fraudulent scheme under the second limb of Barnes v Addy, which is the decision in Turner v O'Brien, your Honour may recall that. … Absent that, that would be the only circumstances in which CTP would not have indefeasible title, because it otherwise has not acknowledged or agreed to recognise those interests. It may have acknowledged that it wouldn't get vacant possession, and the shareholders were there, but it's certainly never in a Bahr v Nicolay sense said well I recognise there's an equitable interest arising and that these appellants have such interests under their purchase contracts or the promises, and I acknowledge it hasn't done that. So absent fraud, in my submission that's the only way.
A fundamental issue here is the identity of the object of the in personam claim. In Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 (Ta Lee), this Court held that the appellant's appeal was futile where, in compliance with the primary judge's orders, the appellant had withdrawn caveats and the second respondent had transferred the relevant property to the first respondent (see at [73]-[78] (Bathurst CJ, Beazley P and Macfarlan JA)). Although the Court acknowledged that the appellant, if successful, may have a claim in personam against the second respondent, there would be no such claim against the first respondent (now the registered proprietor) and therefore there was no utility to the appeal. In contrast, in White v Tomasel [2003] 2 Qd R 438 (Tomasel), a majority of the Queensland Court of Appeal (Williams JA and McMurdo J) held that the Court did have powers to order a reconveyance of property where the appellant had complied with the primary judge's orders, and transferred the property such that the respondent was now the registered proprietor. The majority held (Williams JA at [57]-[60], McMurdo J at [67]-[74]) that, if successful, the appellant's rights would constitute a claim in personam as against the respondent.
Although the fact situation here is different (as the transfer of the property did not take place pursuant to an order of the court), the difference in outcomes in Tomasel and Ta Lee illustrates the importance of ascertaining which parties would be the objects of any in personam rights obtained by the appellants, if successful. If those objects do not include CTP (now the registered proprietor), it is difficult to see how the in personam exception to indefeasibility could operate here. An even more stringent approach (as seen in the minority judgment of Davies JA in Tomasel, and in the result of a broad application of the judgment in Ta Lee) requires that, for an in personam right, there must be the existence of a legal or equitable cause of action, and it must be unconscionable for the registered proprietor to retain their registered interest. This possible additional requirement for unconscionability further raises the bar to a finding that the appellants have an in personam claim that would defeat CTP's indefeasibility.
No error has been established in the conclusion by his Honour that the relief pleaded did not overcome the practical problem posed by the need to subdivide the Park if the alleged promise were to be an order for specific performance (as I have made clear above); nor is there an error in his Honour's conclusion that there were practical problems with subdividing the Park so as to decree the transfer of the allotments to the appellants (not least being the fact that non-plaintiff members of CHB had been given no opportunity to respond to the relief claimed).
As to (m), the complaints that undue weight was given to the "legal and technical realities of the arrangement" and that his Honour failed to consider or give sufficient regard to the evidence of what the appellants understood they were offered, both are untenable. It is an extraordinary submission to suggest that his Honour erred in the weight given to the "legal and technical realities of the arrangement". That was precisely what his Honour was tasked with determining insofar as the appellants were claiming an equitable proprietary interest in the land by reference both to the terms of the purchase agreements and by way of proprietary estoppel. Nor do I accept that his Honour failed to consider the appellants' evidence as to what they understood they had been offered or failed to have sufficient regard thereto. His Honour clearly considered that evidence and paid sufficient regard to it. The fact that he did not accept that evidence is not an indication of some failure to consider it or to take it into account.
Finally, as to (n), the complaint is that his Honour rejected all 18 appellants' claims as a class in circumstances where the evidence of each was substantially different. This cannot be supported when regard is had to the extensive submissions by the Kelly-Booker respondents' counsel as to the evidence of each of the appellants - to which his Honour had regard and expressly accepted.
Thus, none of the sub-grounds has been made good. Nor has the overall complaint that his Honour erred in finding that the appellants were not promised ownership of sites as land as well as shares in CHB (the pleaded representation). Ground 9 must be dismissed.

[30]

Determination

First, as to the complaint made that it was in error to make an order for the appointment of a liquidator when no such relief was sought, as already noted the ultimate iteration of the pleading did seek the appointment of a liquidator and there is no basis for the submission made to the contrary in this appeal.
Second, as to the complaint that his Honour erred in refusing to make the declarations sought, the declarations were many and varied (see R1-4, R6, R7). Relevantly, the declaration sought at R7 was that CHB and the directors contravened (and the Administrators knowingly assisted contravention of) s 232 of the Corporations Act by abusing their position as directors and managers of CHB "and otherwise", such conduct being contrary to the interests of members of CHB as a whole or oppressive and unfairly prejudicial to or unfairly discriminatory against the appellants. There is ordinarily no need to make a declaration when there is a finding in the principal judgment that there was oppressive conduct in particular respects. The suggestion that there was a need for a declaration as this would have assisted a subsequent liquidator bringing proceedings against the directors on behalf of the company was made in a generalised way and does not address difficulties that the conduct the subject of those hypothetical claims was not the subject of findings in any event (such as the theoretical possibility as to claims based on the "sham administration" allegation).
In relation to a number of the declarations, his Honour refused to grant such relief because the claim was not pleaded or the parties were not joined to the proceedings. See R5 the claimed declaration as to misleading and deceptive conduct on the basis that the claim was not pleaded (see [568] of the pleadings) and the R7 declaration as to oppressive conduct (see [527]-[528] of the pleadings (on the basis that the party not joined)).
In the aide-memoire document the complaints on these grounds are rolled in together (i.e., as oppression or unconscionable conduct or misleading and deceptive conduct or harassment) and the assertion is made that orders should have been made under the ACL to put the appellants back in the position in which they would have been but for the misconduct of the directors and their companies. In addition, it is said that the appellants should have received monetary compensation for disappointment and distress "caused by this system of misleading, deceptive and harassing conduct" (see at [49] of the aide memoire).
Focusing on the particular complaints made in grounds 10-14, I have concluded as follows.
The complaint raised by ground 10 is that his Honour erred by rejecting the appellants' claim that the sale of the Park itself had an oppressive effect on them (referring to the principal judgment at [555]-[557]) because even if Re Smith (2006) 58 ACSR 410; [2006] NSWSC 780 (Re Smith) is authority for the proposition that the Administrators are not bound by the company constitution in their realisation of assets, Re Smith does not relieve the directors of the promise they made to the shareholder/residents many times that they would not sell the Park without 80% shareholder agreement.
The first pleading of oppression in the pleaded claim is contained in the section headed "Claim against Administrators". The allegation (at [A40]) is that the directors' conduct of the affairs of the company was oppressive by causing the transfer of "all the assets and undertaking of CHB" [sic] to CTP, thereby diverting assets and the business of CHB for their own benefit.
The difficulty with this allegation is that the conduct of the directors in propounding the DOCA was not at a time when they were in control of the affairs of the company. The Administrators were in control of the company at that stage; and they were not bound by the Constitution when recommending that creditors accept the proposal (which they did). That is made clear in Re Smith, which has been endorsed in Scott v Port Hinchinbrook Services Ltd [2017] QSC; 320 FLR 46 at [75] and Re Bacchus Distillery Pty Ltd (Administrators Appointed) [2014] VSC 111 at [65]-[66], where Barrett J said: 13. The circumstance that, in words of Beach J, "members are excluded from contemplation during the process of an administration" means that an administrator, in exercising the specific and statutory power to terminate part of the company's business and to sell part of its property, is neither constrained nor bound to have regard to provisions of the constitution (being provisions of the statutory contract that arises under s.140(1)(a) of the Corporations Act between the company and its members which may regulate - or even prohibit - those steps. The administrator, when exercising statutory powers, is a stranger to that statutory contract. And the administrator's acts are not acts of the company, even though they are to be regarded as having been performed by an agent of the company.
At [A49], still under the heading "Claim Against Administrators", there is a separate pleading of oppressive conduct by the Administrators. The particulars of this repeat the allegations at [A33]-[A35], broadly, diverting the assets and business of the company without adequate compensation and at an undervalue.
Then at [31], under the heading "Oppression", is the allegation that the directors conducted the affairs of CHB and/or CTP in a manner oppressive to, unfairly prejudicial to, and unfairly discriminatory against the appellants and members other than the directors and their related entities in breach of s 232(a) and (e). The particulars of this allegation include matters such as: the issue to themselves of the 19 shares for payment of $500.74 each (in April 2014); entry by HBS into an exclusive management agreement in relation to the CHB's village; cessation of provision of annual accounts to members and refusal to provide accounts; putting CHB into voluntary administration during the course of the s 247A proceedings; claiming debts owing to them by CHB; the signing of the DOCA; and correspondence with members (by the directors or CTP's lawyer (on 2 December 2019, 11 December 2019 and 18 December 2019)) as to the requirement to enter into new RSAs failing which they would be required to leave the village and their homes would become the property of CTP.
At [32], it is alleged that the directors "further defrauded" CHB by failing to pay site fees and misappropriating money received for the purchase of shares "and otherwise".
At [34], it is alleged in effect that the "cumulative effect of this conduct of the company's affairs" amounted to oppression; and that the Court should make orders R7, R8, R10, R10C, R11 and R13.
His Honour's reasons at [555]-[557], about which complaint is made in ground 10, fall under a section of the principal judgment dealing with the appellants' pleaded case of oppression. His Honour noted at the outset of that section (see at [452]) that there was a great deal of debate between the parties as to the proper scope of the pleaded case of oppression.
His Honour addressed the oppression claim first by considering whether the conduct of CHB's affairs is, or was at relevant times, oppressive, and then the relief affecting the control or management of CHB which might flow from such a finding. His Honour (at [457]) identified the specific matters about which complaint was made as falling under eight headings: the management arrangements with HBS; the proceeds of the "sale" of CHB shares; profits by the directors on the purchase and re-sale of shares; the April 2014 share issue; denial of the requests for documents; the appointment of statutory administrators to CHB; sale of the Park to CHB; and the management right conferred by CHB's ordinary shares.
As noted above, his Honour was satisfied that conduct of the affairs of CHB under the management of the directors was oppressive at least from the time when serious issues about governance were raised in late 2016 ([475]). However, his Honour accepted that the directors' oppression ceased with the appointment of the Administrators on 21 August 2019 (though that did not necessarily mean that the effect of prior oppressive conduct had also ceased) ([481]). His Honour considered that the resumption of the directors' control over CHB on 17 December 2019 (with completion of the sale of the Park) meant that the oppressive conduct of its affairs had resumed ([484]). It was in this context that his Honour considered that an opportunity should be given to the appellants to ask for a winding up order if they sought utility in it at that stage ([491]).
Turning then to the passage complained of in ground 10 ([555]-[557]), the primary judge identified two fundamental difficulties with the submission by the appellants as to oppression in respect of the sale of the Park itself and the relief sought in that regard (setting aside the transfer and providing for the return of the Park to CHB). Only the first of those difficulties is raised by ground 10, namely the difficulty identified by his Honour that, once CHB had been placed in administration (albeit the primary judge, in error, used the phrase "placed into liquidation", when clearly this was intended as a reference to administration), the Administrators were clearly correct in proceeding on the basis that the restrictions in the Constitution on sale of the Park no longer applied (the second difficulty being that entry in the sale was mandated by the DOCA).
His Honour expressly recognised that, for the purpose of granting other relief, it might have been possible to regard the sale of the Park to CTP as part of the ongoing effect of prior breaches of duty or oppressive conduct on the part of the directors but that it was not open to treat the sale itself as being oppressive.
The assertion by the appellants that Re Smith does not apply to the directors is beside the point. What the primary judge was addressing was the submission that the sale of the Park itself was oppressive conduct because the 80% rule had been overridden ([555]). His Honour was correctly pointing out that the Administrators were not bound by the Constitution. The sale itself could not be oppressive conduct by the Administrators for that reason; nor is it correct that the directors "caused" the sale. True it is that the directors placed the company into administration (which put the Administrators in control of the company) and propounded the DOCA (which provided for the sale) but strictly speaking the cause of the sale was the decision of creditors to approve the DOCA (on the recommendation of the Administrators). I see no error in his Honour's conclusion at [557]. His Honour clearly left open the possibility of a claim on behalf of the company seeking relief against the directors in relation to the sale (see [559]), which is the subject of ground 11.
Ground 10 is not made good.
As to Ground 11, complaint is made that his Honour erred by failing to order rescission of the transfer of the Park to CTP (though finding it would theoretically be possible) and failed to give reasons why "such claims must be left to a liquidator of CHB". The appellants fail to acknowledge that his Honour considered that such relief would theoretically be possible if there was a claim made on behalf of CHB against the directors on the ground that the sale was the consequence of prior breaches of duty by them but noted that no such claim was made in the proceedings before him. The claim for rescission of the transfer was not brought as a claim for relief on a derivative suit brought with leave on behalf of CHB; and in any event, as his Honour pointed out, any such order would be subject to setting the DOCA aside and doing equity by paying back the purchase price. No error is disclosed by that reasoning.
As to the complaint that reasons were not given as to why such a claim must be left to a liquidator of CHB, if one be appointed, this ignores the fact that his Honour at [559] indicated that this was the case "for reasons already given". His Honour had earlier explained quite clearly that in the present case no order had been sought for the bringing of proceedings by or on behalf of CHB against the directors or their associated companies (see at [459]). What his Honour was contemplating as theoretically possible (at [559]) was relief being granted on a claim made on behalf of CHB against the directors. It follows that, as no leave to bring derivative proceedings had been sought or granted, any claim on behalf of CHB on that scenario would have to be left to a liquidator if one be appointed. Ground 11 is not made good.
As to Ground 12, the complaint is made as to the fact that his Honour failed to remedy the "oppressive transfer" of the Park to CTP by ordering that it be transferred back to CHB. That Ground fails for the reasons given by the primary judge - the sale itself did not amount to oppressive conduct by the Administrators who were not bound by the Constitution, and no claim was made on behalf of CHB against the directors that might have permitted rescission. The further difficulty that any rescission would be subject to payment back of the purchase price is left unaddressed by the appellants. Ground 12 is not made good.
As to Ground 13, the complaint is that his Honour erred by finding (at [440]) that the transfer agreement could not be rescinded unless the DOCA was first set aside. The appellants say that the relief sought by prayer R10(a) was that the agreement for sale of the land be declared void ab initio and they argue that, once void, there is no agreement to be rescinded.
As the Kelly-Booker respondents point out, CTP's title to the Park derives from the fact of registration (citing Mayer v Coe [1968] 2 NSWR 747 at 754, Frazer v Walker, Story v Advance Australia Bank (1993) 31 NSWLR 722 at 736). As I considered above at [277]ff, the submission that the principle of indefeasibility does not somehow apply if there is an allegation that the underlying agreement for sale is void ab initio cannot be accepted. The exceptions to indefeasibility arise in a narrow context - relevantly, the fraud exception and the in personam exception.
Finally, as to ground 14, the appellants say that the primary judge erred by failing to give reasons why the sale of the land was not unconscionable, in circumstances where members had been assured many times, over several years, in print and orally, that the land could not be sold unless 80% of members agreed (referring to the pleading at [35(IV)]). I consider this ground in due course when addressing the other unconscionable conduct grounds of appeal (see below at [437]-[438]).

[32]

Appellants' submissions

As noted above, the appellants have emphasised in their reply submissions the necessity to make an objective assessment, in light of all of the circumstances, of the impugned conduct viewed as a whole in order to consider whether it has a tendency to lead a person into error. In their submissions, they focus on three sets of representations: first, representations that CHB was selling allotments of land; second, the so-called "80% rule", namely that the land could not be sold without 80% shareholder approval; and, third, the assertion that the appellants would have to leave the property and would lose their homes if they did not sign a new residential site agreement.
However, it is worth noting that the pleaded allegations of misleading and deceptive conduct (at [24] and [25], respectively) particularise the misleading conduct first by reference to the representations as to an interest in the land "as well as a share" in CHB ([24(I-IV)]) and, second, by reference to a variety of post-sale conduct ranging from statements as to: who was responsible for CHB being put into voluntary administration; the ongoing occupation of their allotments being unlawful if a new RSA was not signed; the disclosure statement sent to members being a standard Department of Fair Trading document and that they were not entitled to a cooling off period; that dwellings erected on the allotments would be acquired by CTP on transfer of the land; that rights to use the Park ceased when the land was sold to CTP; and as to statements to NCAT and to members as to the making of an application for stay of certain NCAT proceedings and that there had been an order that appellants must pay CTP money (see [25(I-VII)]).
Tellingly, not included in the particulars of misleading and deceptive conduct at [24] and [25] is any reference to the so-called 80% rule. In oral submissions, the appellants seek to avoid this problem by characterising the misleading and deceptive allegations as a "fallback" to their unconscionable conduct claim (see AT 48.5-10). That may be so. However, it cannot have been an error for the primary judge not to consider whether representations as to the 80% rule amounted to or gave rise to misleading or deceptive conduct where this was not pleaded.
Turning to the first of the three sets of representations that feature in the appellants' submissions in this context (i.e., that CHB was selling land as well as a share in CHB) the appellants point to the documentary evidence (the promotional material and advertisements) and allotment agreements, as well as the evidence of various of the appellants of oral representations made by Ms Kelly and Mr Booker. That evidence has already been referred to in the context of ground 9 above.
The appellants also point to statements in other documents which they say confirm that the directors had promised shareholders that they were buying land (including Ms Kelly's "Concept overview" document; the 21 October 2013 letter from Ms Kelly (for HBS) to Mr and Mrs Tait discussing the need for shareholders to insure their buildings; CHB's Constitution; the 11 November 2013 email from Ms Kelly to Mr Squire; the report to the AGM on 6 August 2013; an email from Ms Kelly to the Administrators as to investment in infrastructure which "had to happen before we could sell the allotments"; and Ms Kelly's email to the Administrators stating that "The duties performed by CHB directors were always to develop the land to enable the division into allotments that had all utility services available").
As to the wording in various of the allotment agreements referring to "the share for allotment", the appellants say that this clearly refers to something different from a share in the company, because the share in the company is identified as something that is included in the purchase of the share for the allotment. The appellants argue that the words "share for the allotment" are ambiguous and must be construed by reference to extrinsic facts such as the directors' written and verbal representations that allotments of land were being sold. The appellants say that the allotment agreements attribute a certain area to the "allotment" and state that the purchase price is for the "allotment", not the "share"; and refer to possession of the allotment. The appellants thus argue that the impression of the contract as a whole is that the allotment is a portion of land, not a right to occupy (or a licence) in respect of the allotment. Thus, they submit that "the share for allotment" should be construed as meaning a portion of the land.
As to the second set of representations, the appellants complain that they were promised and assured many times that the land could not be sold without the agreement of 80% of shareholders but that ultimately the directors put forward the DOCA by which the land would be sold without shareholder approval and then voted as the majority creditor in favour of the DOCA. The appellants refer in this regard to: cl 2.2 of CHB's Constitution; the statement by Ms Kelly at the 2016 AGM as to the 80% rule (and that she and Mr Booker "have never had any intention of selling the land"); the CHB Concept Overview document; the CHB Dream Explained document; promotional material; and a statement by Ms Kelly when the matter was before Black J (the s 247A proceedings) that the property could not be sold without 80% of the shareholders.
The appellants also point to evidence of various of the appellants in cross-examination, confirming that they were promised the land would not be sold without 80% shareholder support (Ms Tait; Ms Cook and Ms Axtell), as well as Ms Kelly's evidence in cross-examination that the "80% rule" was an important selling point (see 9/09/2021; T 710.27-33; 10/09/2021; T 751.9-16).
The appellants complain that the letter to shareholders on 24 December 2019 was itself misleading and deceptive because it failed to mention that it was the directors who proposed the sale of the land and who voted in favour of the DOCA. The appellants argue that (although the Administrators signed the sale contract for the vendor) CHB and the two directors were instrumental in causing the sale; noting that the directors signed the contract as purchaser. The appellants say that, as the majority creditor, CHB and the directors could dictate whether or not the land was sold and the terms of such sale. The appellants argue that it was misleading and deceptive to promote the "80% rule" as a selling point when there was no basis to make such a promise.
As to the third of representations (the assertion that shareholders would have to leave the property and would lose homes if they did not sign a new RSA), the appellants complain that this was also misleading and deceptive, again citing [25(I)-(VII)] of their pleadings.

[33]

Kelly-Booker respondents' submissions

The Kelly-Booker respondents' submissions as to the first set of alleged representations that the appellants were purchasing allotments of land, not just shares in CHB, have already been addressed in the context of ground 9 (see above).
As to the second set of alleged representations concerning the "80% rule", the Kelly-Booker respondents contend that it cannot have been an error for the primary judge not to deal with this as part of the appellants' misleading and deceptive case when it was not particularised but, in any event, they point to the provision in the CHB Constitution requiring 80% shareholder approval for CHB to sell the Park (cl 2.2) and they maintain that it is therefore incorrect for the appellants to assert that there was "no basis" to promote the "80% rule".
I note that, in their reply submissions, the appellants accept that the alleged representations concerning 80% shareholder approval for CHB to sell the Park were not part of the pleaded misleading and deceptive conduct case. However, they emphasise that the making of those representations was part of the unconscionable conduct case (referring to [35(IV)] of the pleaded case); and they say that this was the subject of extensive submission before the primary judge (at [252]-[269] of their submissions). The appellants' complaint is that primary judge erred by not engaging with this claim at all. That complaint is considered in the context of the unconscionable conduct appeal grounds.
The Kelly-Booker respondents further say in relation to the "80% rule representation" argument that it is inconsistent with the appellants' claim that they believed they were acquiring interests in their allotments. The Kelly-Booker respondents argue that belief as to the sanctity of the 80% shareholder approval requirement to sell the Park discloses a knowledge that title to the allotments lay with CHB. (The appellants submit that the "average retiree" buying into this home base would not reasonably be expected to have "the specialised understanding" to realise the legal significance of the ability to sell the land if 80% so voted; and they argue that "They may have assumed this would result in only the common property being sold, not their personal allotments, or they may have glossed over it, comfortable that 80% of the residents would never agree to sell the whole park and its individual allotments".)
As to the third set of representations (about needing to vacate the Park and sign new RSAs), the Kelly-Booker respondents say that no loss was suffered since none of the appellants was evicted from the Park, nor did any sign new RSAs. The appellants cavil with this submission and point out that they claimed declaratory relief and did allege loss, claiming compensation for disappointment and distress suffered as a direct result of the misleading conduct (referring by way of example to Kuzmanovski). Pausing here, as noted when considering the pleading, the allegations of loss and damage were generally not particularised in relation to these specific claims.

[35]

Determination

As to Ground 15, it is relevant to set out what was said in the impugned reasons at [568]: The case for the plaintiffs might have been put on the basis that they were told, and believed, that the purchases would give them rights over their sites which were equivalent to "real estate security". But it was not pleaded in this way. I have already explained why I consider that the pleaded representations that the plaintiffs would receive an interest in land along with a shareholding did not arise from the purchase agreements or the promotional materials. The plaintiffs' pleaded case of misleading and deceptive conduct fails.
The complaint (ground 15(a)) that his Honour took an unfairly technical and/or improperly narrow view of the pleaded case by limiting his consideration to (representations as to) interests in the land, cannot be accepted. It is trite to note that cases are conducted and determined on the issues as framed by the pleadings (Dare v Pulham (1982) 148 CLR 658 at 664; [1982] HCA 70). A claim of misleading or deceptive conduct based on representations made to the relevant party or parties must identify with particularity the representation(s) said to have been made (Campbell v Backoffice at [32] (French CJ); Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8 at [80]), especially given the nuanced distinction relied upon between acquiring land and acquiring a share in a company which owned land, which is central to this litigation. There is nothing unfairly technical (or improperly narrow) in his Honour addressing the appellants' claim pleaded at [24] by reference to the particulars of the alleged representations, which were expressly framed as representations that the appellants would receive "an interest in the land as well as a share" in CHB. The references to "real estate security" in the documents were relied upon by the appellants as in effect amounting to a representation that they would receive an interest in the land as well as the CHB share; not as a separate representation divorced from that meaning.
Ground 15(b) raises a complaint as to a failure to consider, or give reasons for rejecting, other misleading and deceptive conduct pleaded at [25]. Insofar as this is a reference to the conduct particularised at [25], as already noted, this related to conduct after the acquisition of the CHB shares (statements as to who was responsible for placing the company into voluntary administration, the need to sign new RSA's and the like). Unsurprisingly, this conduct was not addressed at [566]-[568] since those paragraphs fall under the sub-heading "CHB share purchases" as part of the consideration of the monetary claims against the "Kelly-Booker parties". However, his Honour went on to consider, under the sub-heading "Post-sale conduct" (also within the section on monetary claims), complaints about the very correspondence referred to in the particulars to [25] (see [587]-[589]) and expressly noted that the appellants relied on this as giving rise to three different contraventions of the ACL: undue harassment or coercion; misleading or deceptive conduct; and unconscionable conduct (see at [590]). The suggestion that his Honour failed to consider an allegation that the conduct particularised in [25] amounted to misleading or deceptive conduct cannot be maintained.
As to the complaint that his Honour failed to give reasons for rejecting that misleading or deceptive conduct claim, this also cannot be maintained. His Honour noted at [591] the submissions made by the Kelly-Booker respondents as to, inter alia, this conduct being misleading or deceptive; relevantly, that there was no evidence that any of the appellants had taken any action of any kind in reliance on any of that conduct and hence there was no damage; and said (at [592]) that there was no reply of substance to those submissions and he accepted them. In other words, his Honour's reason for rejecting the claim of misleading or deceptive conduct particularised at [25] was that there was no reliance on any of the conduct and hence no damage.
His Honour went on at [592] to observe that, where the relevant conduct involved asserting a legal conclusion that conduct did not become misleading or deceptive (or harassment or unconscionable conduct) simply because that conclusion was ultimately rejected by the Court (referring to Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 at [35]-[43]). His Honour also (at [593]) expressed a doubt as to whether the letters written by the appellants' solicitor (particularly the letter to NCAT) were even conduct in trade or commerce but that was not determinative in his Honour's reasoning. (The Kelly-Booker respondents accept that the solicitor's correspondence, acting for the Kelly-Booker respondents, would be able to be characterised as being in trade or commerce, but nothing here turns on this.)
Thus, the assertion that his Honour failed to consider or give reasons for rejecting the misleading and deceptive conduct claim pleaded at [25] must fail.
As to ground 15(c), the asserted failure to consider or give reasons for rejecting "extensive evidence" of misleading and deceptive conduct, this is also not made good. His Honour clearly understood that the misleading and deceptive conduct claim at [24] of the pleadings (as to the acquisition of an interest in land) arose from the same representations on which the appellants relied for the proprietary estoppel claim and his rejection of that misleading and deceptive conduct claim (at [568]) must be understood as based on the findings made earlier as to those representations (see the analysis in ground 9 above). As to the claim at [25] of the pleadings, his Honour clearly had regard to the correspondence particularised in support of that claim; and his ultimate finding was that there was no evidence of damage.
Insofar as the appellants say that the loss they suffered was disappointment and distress (as a direct result of the misleading conduct), his Honour addressed at [575] the claim for disappointment, distress and anxiety, albeit in the context of considering the damage allegedly flowing from the acquisition of shares in CHB (see at [576]). I accept that his Honour did not separately address the question of disappointment, distress or anxiety flowing from the receipt by the appellants of the correspondence complained of at [25] of the pleadings, simply noting at [591] the submission (which his Honour accepted) that there was no evidence of action taken by any of the appellants of any kind (such as by entry into an RSA with CTP) in reliance of any of that conduct and hence no damage. It is not clear that there was evidence directly going to the claim for non-economic losses (disappointment, distress and injury) arising "as a direct result" from the conduct particularised at [25] (as opposed to the claimed disappointment, distress or anxiety as a result of the whole course of conduct the subject of the various claims that were made). Moreover, in circumstances where his Honour considered the claim based on Baltic Shipping to be preposterous, it is difficult to see how separate consideration of any non-economic loss arising as a direct result of receipt of the correspondence could have led to any different outcome for the appellants.
Ground 16 is premised on the appellants succeeding in their challenge to the factual findings (as to the representations, it seems, though this is not made clear and there was no rule 51.36(2) statement included in the appellants' submissions identifying the factual findings the subject of challenge). In any event, the complaint that his Honour failed to take into account substantial evidence and compelling inferences cannot be sustained having regard to his Honour's consideration of the representation case (see ground 9); and his Honour's conclusion that the Kelly-Booker respondents did not engage in misleading and deceptive conduct has not been shown to be in error.
Finally, in this regard, even had the appellants succeeded in their challenge to the factual findings in relation to representations, they did not challenge in this appeal his Honour's findings that he was not satisfied that the appellants believed that they were obtaining an interest in land as well as a share in CHB; and that any such belief would not have been reasonable; nor his finding (at [571]) that the appellants had failed to establish that they relied on those representations to proceed with the purchase and hence to establish that the alleged contraventions caused them to act differently.
As already noted, the appellants maintained that there was no requirement for them to establish reliance (or a causal connection between the misleading and deceptive conduct alleged and the loss allegedly suffered) in order to obtain relief as to a contravention of the prohibition on misleading or deceptive conduct (see AT 28.41-29.27; AT 42.10-43.2). The appellants maintained (at AT 29.21-27) that: Our point of appeal is that it simply wasn't open to the judge on the evidence to say that the retirees weren't told and didn't believe that they were obtaining a legal interest in the real estate, and that that notion of buying real estate and security was critical to their entering into the contract. They would not have bought the property if they hadn't believed that they were buying land. That was the selling proposition. That was the reliance on those promises causing them to enter into these contracts.
Pressed on this issue, the appellants referred to transcript references where it is said that the appellants expressed their reliance on the representation that they were buying land; and subsequently handed up a short written note (19/03/2024; AT 58.20-22) which, among other things, submitted that there was a clear link between the pleaded misleading and deceptive conduct and the loss suffered (echoing the submission the previous day at AT 42.34-35 that, while their primary argument was that reliance did not need to be demonstrated, reliance/causation was in any event clear on the evidence) and then conceded that "there must be some causal link" but emphasised that it was not essential that the contravention be the sole cause of the loss or damage, and that it only need be a link in the chain of causation (citing Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 at [14]).
The concession that there must be some causal link between the alleged misleading or deceptive conduct and the loss or damage claimed, although belated, was well made (see Campbell v Backoffice at [31] per French CJ; Elders Trustee & Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193 per Gummow J, then sitting in the Federal Court, at 242; Argy v Blunts (1990) 26 FCR 112 per Hill J at 138; and see the discussion in Lockhart, The Law of Misleading or Deceptive Conduct (LexisNexis, 6th edn 2023) at [10.1]; Miller, Australian Competition and Consumer Law Annotated (Thomson Reuters, 46th edn 2024) (Miller's) at [ACL.18.1120]).
The appellants' contention that the causal link does not need to be the sole cause of loss or damage is hardly surprising and reflects a relatively basic aspect of the fundamental principles of causation. But that does not address the difficulty that there is no challenge in the grounds of appeal to his Honour's findings on reliance, which are fatal to a claim for damages for misleading or deceptive conduct.
Ground 16 is not made good.

[37]

Appellants' submissions

The appellants complain that the primary judge erred (at [569]) by misconstruing their claim of unconscionable conduct (which they identify in their submissions as being pleaded at [35]-[39]) as relying on the representations which were relied upon as misleading and deceptive conduct; and finding (at [570]) that the unconscionable conduct allegation therefore did not add in any substantial way to the allegation of misleading and deceptive conduct and failed for the same reason as that claim failed.
The appellants say that the pleaded unconscionable conduct also comprised: the allegation that the whole course of conduct was unconscionable within the meaning of the unwritten law (at [7D] of the pleadings); the whole course of conduct pleaded at [A11]-[A41] as pleaded at [A60B]; and the conduct particularised at [5]-[8], [24]-[25], [28]-[32], [35], [38].
The appellants say that, as a consequence of that error, the primary judge failed to consider their submissions concerning unconscionable conduct in breach of s 21 of the ACL. The appellants maintain that the whole of the conduct of Ms Kelly, Mr Booker and their companies from about 2012, when they commenced promoting CHB, up to the present, was unconscionable.
The appellants refer in that regard to the whole course of conduct alleged at [A11]-[36] (which was pleaded as unconscionable at [35(I)], namely: [5]-[8], the sale of member's land, [24]-[25], misleading and deceptive conduct; [28]-[32], harassment and coercion; [35(III)], the allegation that the cabins are fixtures; [35(IV)] sale of the land in breach of the 80% promise; and [38], after the sale of land in December 2019), insisting that the appellants must enter into new RSAs or leave and lose their homes.
In essence, the appellants say that whole course of conduct comprised: promising the appellants that they would get some sort of legal title to their allotment of land, and later denying this; misappropriating the income of the company for themselves, taking the share capital for themselves, and charging unreasonable fees; taking over the company by selling themselves shares for a nominal sum; refusing to provide accounts when requested by shareholders; appointing voluntary administrators to avoid disclosure of their wrongdoings; selling themselves the land and business at an uncommercial price, in breach of their promise that the land would not be sold unless 80% of shareholders agreed; and threatening to evict residents and take their cabins unless they sign new RSAs at triple the agreed site fees.
It is noted that at [35(III)] it was alleged that it was unconscionable for the directors to assert that the cabins are fixtures which now belong to CTP, in circumstances where the directors supplied the cabins to members either as vendor of existing cabins or builder of new cabins. In that regard, the appellants point to the special provisions in the contract for sale of the land (conditions 51.3 and 51.5) which they say made clear that the shareholder/residents' cabins were not part of the sale; the Deed Administrators' report to creditors at 9.1(iii) which stated that CHB owned the land building and improvements at the Park but excluding "the shareholders' dwellings erected thereon"; and CHB's Constitution, which acknowledged the shareholder/resident's property in "any dwelling, associated structure, shed, retaining wall or any structure or fixture including but not limited to, any landscape [for example, paths, driveways and concrete slabs] or landscape on the shareholder/residential site". The appellants say that it is undeniable that the cabins belong to the shareholders and to make any assertion to the contrary was untruthful and unconscionable.
The appellants maintain that s 21 of the ACL is engaged, as CHB, CTP, Ms Kelly, Mr Booker and HBS were engaged in trade or commerce, and supplied goods (including cabins) and services (as operators of a retirement village, home base, caravan park, residential land lease community or otherwise) to the appellants. As to the matters to which the Court may have regard in determining whether conduct was unconscionable, the appellants submit as follows.
As to s 21(2)(a) (the relative strengths of the bargaining positions of the supplier and the consumer), the appellants say that in the present case, the directors had complete control over the consumer's accommodation arrangements and their living environment, by virtue of their position as sole directors, majority shareholders, and agents.
As to s 21(2)(b) (whether, as a result of conduct engaged in by the person, the consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier), the appellants say that they were denied information about the finances of the company and were denied any control of the company by the directors' improper acquisition of majority control. It is submitted that this was "not reasonably necessary for the protection of the legitimate interests of the supplier".
As to s 21(2)(c) (whether the consumer was able to understand any documents relating to the supply or possible supply of the goods or services), the appellants say that the Constitution of CHB was not provided before entry into the "supply contract", and that the terms of the contracts they signed were vague and ambiguous.
As to s 21(2)(d) (whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the consumer or a person acting on behalf of the consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services), the appellants say that they were threatened with eviction and loss of their homes unless they signed a contract that they were not legally required to sign.
The appellants submit that the above matters weigh heavily in favour of their claim of unconscionable conduct. The appellants place weight on Jonval Builders Pty Ltd v Commissioner for Fair Trading (2020) 104 NSWLR 1; [2020] NSWCA 233 (Jonval), where the operators of a residential park had sold homes to retirees promising permanent housing when in fact council approval only allowed short term occupation and this conduct was found to be unconscionable. The appellants say that Jonval also confirms that statutory unconscionability does not require proof of "moral obloquy", referring to what was said at [72] (per Leeming JA, Bathurst CJ and Meagher JA agreeing).
The appellants contend that the primary judge should have ordered compensation for economic and non-economic losses, including disappointment and distress arising from the breach of s 21 of the ACL. They say that the result of the unconscionable conduct was that the appellants' company was deprived of its land on which the residents had constructed their homes. They argue that the directors should be ordered to cause CTP to transfer the land back to CHB and to cancel the 19 shares unlawfully obtained by the directors (invoking s 237 of the ACL).

[38]

Kelly-Booker respondents' submissions

The Kelly-Booker respondents say that, to the extent that the claim of unconscionability was premised upon misleading and deceptive conduct, there was no error; and that the assertion that the primary judge failed to consider other aspects of the unconscionable conduct claim is not a fair reading of the reasons for judgment. The Kelly-Booker respondents point to the structure of the judgment (his Honour's treatment of this claim (at [569])) coming after his Honour's consideration of the appellants' claims for oppression ([452]-[562]). In any event, the Kelly-Booker respondents say that the matters identified in the appellants' submissions do not make out any claim of unconscionable conduct. In this regard, they make the following submissions.
First, they maintain that the directors did not promise the appellants that "they would get some sort of legal title to their allotment of land"; and they distinguish Jonval on the basis that there, it was found that consumers were induced to purchase moveable homes and land, and expend further money on their sites, on the misleading representation that they could occupy such premises indefinitely (whereas here no case of misleading and deceptive conduct has been established). It is noted that the appellants do not seek to rescind the purchase contracts they entered into, and the A-Class shares they obtained.
Second, the Kelly-Booker respondents say that allegations of misappropriation of income were not part of the pleaded case and that the primary judge dismissed the allegations made of misappropriation of share capital. It is further said that the allegation of "charging unreasonable fees" was also not part of the pleaded case, and that no evidence was led to sustain such an allegation (referring here to the principal judgment at [505]-[507]).
Third, as to the allegation that the directors "took over the company by selling themselves shares for a nominal sum", the Kelly-Booker respondents note that this was dealt with (and largely upheld) as part of the appellants' claim for shareholder oppression (at [523]). However, his Honour accepted that the share issue could not be rescinded in circumstances where the owner of the shares (RC) was not joined as a party to the proceedings ([524]-[525]), nor was compensation awardable in circumstances where no evidence of loss or damages was adduced ([528]).
Fourth, as to the allegations as to the directors' refusal to provide financial accounts to shareholders when requested, the Kelly-Booker respondents note that these were dealt with (and upheld) as part of the appellants' claim for shareholder oppression ([532]). They say that nothing is gained by "dressing up" this allegation as a claim for unconscionability in circumstances where no damage was suffered, nor is any additional relief available.
Fifth, as to the allegation that the directors appointed Administrators to "avoid disclosure of their wrongdoing" (i.e., that they contrived a "sham administration"), the Kelly-Booker respondents note that this was beyond the pleaded case ([553]-[554]) and there is no challenge to this finding.
As to the allegation that the directors caused the Park to be sold to "themselves" (CTP) at an "uncommercial price", and in breach of the 80% rule, the Kelly-Booker respondents say that this did not form part of the pleaded case. In any event, the Kelly-Booker respondents point out that: the directors did not cause CHB to sell the Park - the Administrators did; there was no evidence that the Park was sold below value (noting [638] of the principal judgment), rather, the only evidence was that it was sold for $100,000 more that the valuation commissioned by the Administrators (noting [290] of the principal judgment); and the circumvention of the 80% shareholder approval requirement in CHB's Constitution reflected the effect of administration on CHB (noting [557] of the principal judgment and Re Smith at [13] per Barrett J, as his Honour then was).
As to the allegation as to the directors' "threats" to evict residents and take their cabins unless they signed new RSAs, the Kelly-Booker respondents say that this goes nowhere in circumstances where no evictions occurred, nor were any cabins seized; and, similarly, they say that the directors' "momentary" assertion as to ownership of the cabins caused no loss nor was it an issue at trial. It is noted that the directors' opening submissions unequivocally stated that they made "no claim to owning any of the plaintiffs' cabins" and did "not claim any interest in them".
In these circumstances, the Kelly-Booker respondents say that there was no unconscionable conduct (and they add that there was an absence of any proof of loss of damage flowing from the foregoing).

[39]

Reply submissions

In reply submissions, the appellants emphasise that the test for unconscionable conduct is not the same as for misleading and deceptive conduct; and that conduct can be unconscionable even if it is not misleading or deceptive. The appellants further note that unconscionable conduct is not limited to individual transactions or events; and that a pattern of systematic conduct or patterns of behaviour occurring over a period of time (which might include an accumulation of minor incidents) can also amount to unconscionable conduct (pointing to ss 21(4)(b) and 22A of the ACL). As already noted, the appellants argue that there was here an overall course of conduct amounting to unconscionable conduct (leading right up until the present)
The appellants argue that what occurred here is the same as in Jonval, emphasising that in the present case they were also promised secure occupancy indefinitely and that the company and its directors that made (and then failed to deliver) on that promise. The appellants say that the conduct was particularly unconscionable because it was not a third party that "snatched away" the residents' security of occupancy in this case but the same directors who had repeatedly promised over many years that the land would never be sold without the consent of 80% of the retiree residents. The appellants also say that the finding at [72] in Jonval is relevant to the present case, namely the finding that the fact that the consumers had received uninterrupted possession and occupation of the moveable dwellings for around a decade did not deny the conduct being regarded as unconscionable "especially in light of the unchallenged findings of distress that the consumers' insecurity of tenure caused, and the fact that the consumers have now been involved in litigation for some five years".
As to the Kelly-Booker respondents' denial that the directors misappropriated the income of CHB or its share capital or charged unreasonable fees; and their assertion that misappropriation of income was not part of the pleaded case, the appellants say that misappropriation of income is pleaded: at [A21], relating to the purchase of shares at a discount; [A22], relating to failure to pay site fees; and [A32], relating to the failure to pay site fees and misappropriating money received for purchase of shares "and otherwise". (It may be noted that [A21]-[A22] fall within that part of the pleading headed "Claim Against Administrators" and under the sub-heading "Directors' Breaches of Fiduciary and Statutory Duties to CHB and the Plaintiffs".) That whole section results in a claim that the Administrators are jointly and severally liable "with the other Defendants" to pay equitable compensation (see [A61]) and the additional or alternative relief claimed at [A62]-[A64], though it is not clear that this additional or alternative relief is claimed against the Kelly-Booker respondents.
The appellants say that the evidence clearly demonstrates that Ms Kelly retained all the income from the home base business and the tourist business; and that she believed she was entitled to do this. The appellants note that the primary judge considered there to be force in the complaint that the tourist income should have enured to the benefit of CHB (citing [508] of the principal judgment) and that his Honour also said that "the structure adopted by Ms Kelly under which all of the income associated with the Park was treated as income of HBS, so that CHB had no income, was arguably incorrect" (at [545]).
The appellants complain that, as well as keeping all trading income for themselves, the directors "through CHB" misappropriated all the money paid for shares. The appellants say that CHB's bank statements show that most of this money "never made it to CHB's account" and that any money deposited to the CHB business transaction account disappeared within days of being deposited. The appellants say that, as directors and agents of CHB, both Ms Kelly and Mr Booker owed fiduciary duties; that it was their duty to account to CHB for $1,016,665 paid for shares as well as all income received from site fees and tourist operations; and that it is not for the shareholder/residents to prove the money was misappropriated; rather, the appellants say that the onus is on the fiduciaries to account for the millions of dollars which they collected and removed from CHB's bank account.
The appellants point to Ms Kelly's evidence in cross-examination confirming that site fees were not paid in relation to short-term sites she and Mr Booker owned (9/09/2021; T 692.18); and that other shareholders did pay site fees on short term sites (9/09/2021; T 692.18). The appellants say that this deprived CHB of $215,072.54 income between 2016- 2019.
As to the assertion that unreasonable fees were charged, the appellants say that a 60% "management fee" was deducted from all income, before any expenses were deducted. They note that Ms Kelly denied this in cross-examination (10/09/2021; T 799.12) but they say that the accounts in evidence confirm that assertion. By way of example, they note that in 2016 site fees collected were $99,326 and management fees deducted were $59,596 (60%); and that "actual" expenses for the year were only $22,485. Thus it is submitted that the Park was extremely profitable "except for the directors skimming twice the actual expenses off the top".
The appellants say that, in the context of this unconscionable conduct claim, it is not necessary to establish the exact amounts misappropriated; rather, they contend that to prove unconscionable conduct, it is sufficient that there is evidence that the directors retained all the income and withdrew all the share capital. They maintain that this misconduct alone is sufficient to establish the pleaded unconscionable conduct case.
As to the issue of the 19 shares to the directors in April 2014, his Honour considered that he was entitled to draw the obvious inference that the directors issued the 19 shares so as to cement their control of CHB. His Honour held that the fact that the directors gave no consideration to the interests of other shareholders in the issue of those shares and found that "whether or not it involved the improper use of directors' powers this was oppression" ([523]). The appellants say that whether or not this could be rescinded is beside the point; that the conduct was in itself unconscionable; and that it is part of the pattern of behaviour which comprises the "larger" unconscionable conduct claim.
The appellants characterise what was said by his Honour at [529]-[532] as a finding that the directors unlawfully refused to provide shareholders with financial accounts. In fact, at [529]-[531], what his Honour did was to record the submissions made by the respective parties and to find at [532] that the situation created by the refusal of documents was oppressive. His Honour (at [534]) did not accept that it was open on the pleadings for the appellants to assert (or for his Honour to find) that the whole defence of the s 247A proceedings was wrongful or in breach of duty.
The appellants say that, as well as being oppressive (as the primary judge found (at [532])), it was unconscionable for the directors to refuse shareholders access to accounts, especially when the directors had placed themselves into a position of conflict (by being directors of both the principal and agent under the management agreement). The appellants complain that the primary judge did not turn his mind to this aspect of the unconscionable conduct claim (alleging that it was pleaded at [35(I)]).
The appellants accept that the appointment of Administrators and "sham administration" allegations were found not to be part of the pleaded oppression case (per [553]-[554] of the principal judgment) but they maintain that these allegations were part of the unconscionable conduct case. In that regard they point to [A41] of the pleadings where it is pleaded that, by giving themselves advantages to the detriment of CHB and members, the directors' conduct was unconscionable; the particulars of breaches of s 21 of the ACL or s 12CB of the ASIC Act there being provided by repetition of the "particulars" in [A11]-[A36]. This is another example of circularity in the pleading - given that this allegation of unconscionable conduct is under the heading "Claims Against Administrators" and part is under a sub-heading "Relevant Background". The appellants say that this was an unconscionable system of conduct (although that does not appear to be pleaded as such).
The appellants also refer to [A27]-[A29] which they say refer specifically to the "sham administration". In fact [A27] pleads that Black J heard the matter on 13 and 14 August 219 and stood it over pending written final submissions; [A28] pleads the apparent indebtedness according to the company accounts of CHB to the directors and other companies owned by them in circumstances where it is alleged that CHB had no income because the directors had diverted all income; and [A29] pleads the appointment of the Administrators of CHB. It is not there alleged (as the appellants submit it is) that the Administrators were appointed for a collateral abusive purpose. (This is another instance of overstatement or generalisation by the appellants.)
The appellants say that the primary judge recognised the possibility of such a claim (i.e., that the Administrators were appointed for a collateral abusive purpose or the "sham administration claim") referring to observations by his Honour at [545], [552] and [554]. The appellants say that the primary judge erred by failing to consider the claim that this conduct was unconscionable. The difficulty here is that at [545] his Honour was commenting that the structure that had been adopted whereby all the income was treated as income of HBS was "arguably incorrect" but made no such finding, and was considering this in the context of the submission as to whether CHB was insolvent at the time. At [552], his Honour considered that CHB was put into administration in "highly suspicious circumstances". But at [553], his Honour said that the claim was beyond the scope of the pleadings (there focusing on the claimed oppression pleading). At [554], his Honour did accept the possibility that a sham administration claim could still be made against the directors in future "if made on a properly pleaded basis, for losses suffered by CHB as a result of the administration", but that such a claim would have to be pursued on CHB's behalf by a liquidator if one be appointed.
Therefore, the suggestion that a "sham administration" claim was pleaded as part of an unconscionable conduct claim against the directors does not properly reflect the pleaded claim.
As to the Kelly-Booker respondents' submission that "the allegation that the Directors caused the Park to be sold to "themselves" (in truth CTP) at an "uncommercial price", and in breach of the 80% rule, did not form part of the pleaded case", the appellants say that this is plainly incorrect. The appellants say that [41] of the pleading (by which I assume them to be referring to [A41]) contains a reference back to [A33]-[A34] which they say particularise the undervalued sale. In fact [A33] pleads the recommendation by the Administrators of the DOCA and particularises various aspects of the proposed sale; and [A34] pleads the fact that the directors voted in favour of the DOCA. The appellants then refer to [35(IV)] as pleading (strictly it is a particular) breach of the 80% rule. It is correct that the particular there referred to ([A35(IV)]) does assert that it was unconscionable in light of the 80% rule for the Kelly-Booker respondents to propose and participate in the sale of the Land. However, to argue that there is a clear pleading of an allegation that the directors sold to themselves the Park at an uncommercial price in breach of the 80% rule cannot be sustained. There is no such pleading. Rather, the appellants roll up and extrapolate from a number of the allegations in the pleading.
The appellants further say that Re Smith at [13] per Barrett J concerns the ability of the Administrator to sell the land; it does not exonerate unconscionable conduct of the directors in proposing the sale and being the purchasers. The appellants say that hiding behind a corporate veil does not excuse the directors' unconscionable conduct.
The appellants contend that threats to evict residents and take their cabins were unconscionable "in themselves and part of an unconscionable course of conduct"; and that the fact that no evictions occurred does not detract from the claimed damage in the form of disappointment and distress. The appellants say that the evidence also shows that some cabins were actually seized.
Finally, the appellants cavil with the proposition that there was no damage. They note that R14 pleads relief under Part 5.2 of the ACL for economic and non-economic loss including disappointment and distress. They say that a schedule of heads of loss was before the primary judge. The appellants note that compensation for disappointment and distress was sought in the proceeding below in the amount of $200,000 per plaintiff.
As to the submission by the Kelly-Booker respondents that the "Directors' momentary assertion as to ownership of the cabins caused no loss", the appellants say that this must be rejected because the assertion as to ownership "continued relentlessly for four months" and that the shock of the letter of 14 November 2019 in relation to the going rate for weekly site fees alone was sufficient to cause great distress to the appellants (given their position as pensioners). The appellants say that this letter was followed by letters threatening eviction, court proceedings and seizing of premises; and that it culminated in March 2020 with letters advising some residents who were away from the park at the time that CTP now owned their homes. The appellants say that the directors went further and actually took possession of some sites, without any legal right or due process; and that this occurred at the height of the pandemic lockdowns and that "the directors drove home the message that they would not be deterred from evicting residents from their own homes".
The appellants submit that the communications in March 2020 were a particularly egregious deception given that Ms Kelly told the Court that she did not actually believe that the cabins were fixtures and belonged to CTP (citing 8/09/2021; T 625.41-626.43). (I interpose to note that the transcript reveals that Ms Kelly did not herself hold the opinion that the cabins belonged to CTP but was acting on the advice of the lawyer Mr Vrisakis.)
The appellants argue that the fact that they were practically locked into their purchases due to the impossibility of selling or transporting the cabins amounted at least to likely pecuniary loss or damage. It is submitted that non-pecuniary loss is at the extreme end of the scale, referring to Jonval where it was said at [73] that "Especially in a case such as the present, the extent of the distress and uncertainty suffered by the consumers over many years, during which many had hoped to enjoy their retirements, is apt to be only imperfectly captured by the reasons."

[40]

Determination

As is apparent from the submissions made by the appellants on the appeal, they are placing much weight now on the unconscionable conduct claims. I have already set out the parts of the pleading in which those allegations appear. However, for convenience, I note that unconscionable conduct was raised on four occasions in the Third Amended Statement of Claim dated 12 July 2021 (and replicated in the Fourth Amended Statement of Claim): 1. [7D], which alleges that the Kelly-Booker respondents engaged in unconscionable conduct "within the meaning of the unwritten law" (referring to [A21]-[A42], [28], [35], [38]); 2. [A41], which alleges (in a section dealing with claims against the Administrators) that the conduct of Ms Kelly and Mr Booker, by giving themselves advantages to the detriment of CHB and members, was unconscionable in trade or commerce under s 21 of the ACL and/or s 12CB of the ASIC Act; 3. [A60B], which was an allegation against the Administrators that they were involved in the directors' unconscionable conduct (referring to [A11]-[A41]); and 4. [A35], which alleges that the respondents engaged in unconscionable conduct in trade or commerce, employing language identical to that in s 21 of the ACL (and referring by way of particulars back to [5]-[8]) (allegations in relation to the sale of the land to the appellants and sale of property held in trust to CHB), [24]-[25] (the allegations of misleading and deceptive conduct) and [28]-[32] (the allegations of harassment and coercion and the allegations of oppression).
Turning to the complaint raised at Ground 17, this focuses on his Honour's reasons at [569]-[570]. It is clear from the structure of the reasons that what his Honour was there addressing was the unconscionable conduct claim that related to the CHB share purchases (see at [565]), in the course of considering the monetary claims against the Kelly-Booker parties for damages arising out of the purchases of shares in CHB.
The primary judge at [569]-[570] emphasised that the focus of the unconscionability prohibition (in s 21 of the ACL) is on "exploitative commercial transactions": 569 Unconscionable conduct: The plaintiffs' pleaded case of contravention by engaging in unconscionable conduct relevantly referred back to, and relied upon, the representations which were relied upon as misleading and deceptive conduct. While the making of misleading or deceptive representations, or promises that are relied upon and are not fulfilled, can in some circumstances amount to unconscionable conduct, the focus of the unconscionability prohibition is different. It is on exploitative commercial transactions: see, generally, Australian Securities and Investment Commission v Kobelt (2019) 267 CLR 1. 570 In the present case, it was not alleged that there were any features of the representations, apart from the allegation that they involved promises or representations that the plaintiffs would receive a plot of land as well as a share in CHB, to establish such exploitation. It was not, for instance, alleged that the prices the plaintiffs were asked to pay for the shares were not commensurate with the company title interest that they obtained. The unconscionable conduct allegation therefore does not add in any substantial way to the allegation of misleading and deceptive conduct and fails for the same reason as that claim fails.
So understood, it was correct to say that the unconscionable conduct claim raised in the context of the sale of the CHB shares to the appellants relied on the representations which were relied upon as misleading and deceptive conduct. Whether there was no error in his Honour's conclusion that that claim did not add in any substantial way to the allegations of misleading and deceptive conduct and failed for the same reasons, turns largely on whether his Honour was correct in concluding that there was a requirement for there to be an exploitative commercial transaction.
The equitable concept of unconscionable conduct was discussed by Gageler J (as his Honour then was) in ASIC v Kobelt (2019) 267 CLR 1; [2019] HCA 18 (Kobelt) (in which the High Court considered the prohibition of unconscionable conduct under s 12CB(1) of the ASIC Act) at [81]: "Unconscionable" is an obscure English word which centuries of use by courts administering equity have transformed into a legal term of art. In Australia, the central concern of a court administering equity in identifying conduct as unconscionable has long been understood to be to relieve against a stronger party to a transaction exploiting some special disadvantage which has operated to impair the ability of a weaker party to form a judgment as to his or her interests.
Section 20 of the ACL gives statutory expression to this equitable concept, in the context of "trade or commerce" - see Gageler J's comments at [82] on s 12CA of the ASIC Act, a near-identical provision to s 20 of the ACL: Section 12CA … gives statutory expression to that equitable conception of unconscionable conduct. The section's prohibition against engaging in conduct in relation to financial services that is "unconscionable within the meaning of the unwritten law, from time to time, of the States and Territories" operates to impose an additional statutory sanction on conduct that is unconscionable in equity. Suggestions that its reference to conduct that is unconscionable within the meaning of the unwritten law imports some more expansive and less precise denotation are contradicted by extrinsic material explaining the precise choice of statutory language and have been properly refuted.
The circumstances in which conduct will be actionable on the basis of unconscionable conduct were set out by Mason J, as his Honour then was, in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 461; [1983] HCA 14 (described as the "classic test" in Miller's at [ACL.20.20]): Relief on the ground of unconscionable conduct will be granted when unconscientious advantage is taken of an innocent party whose will is overborne so that it is not independent and voluntary, just as it will be granted when such advantage is taken of an innocent party who, though not deprived of an independent and voluntary will, is unable to make a worthwhile judgment as to what is in his best interest.
The focus is on the conduct of the stronger party in attempting to enforce or retain the benefit of a dealing with a person under a special disability in circumstances where it is not consistent with equity or good conscience that this should occur; the key issue is therefore whether there has been some exploitation of a vulnerable party.
Regarding the prohibition in s 21, Miller's notes at [ACL.21.40] that: Although it uses the term "unconscionable" (a term derived from equity), as used in s 21 the term is not limited by equitable doctrine: s 21(4)(a). To avoid confusion it is referred to as "statutory unconscionable conduct".
Miller's, citing the judgments of Gageler J, Nettle and Gordon JJ and Edelman J in Kobelt, describes statutory unconscionable conduct (at [ACL.21.60]) as follows: Statutory unconscionable conduct is simply conduct that is not in good conscience, irreconcilable with what is right and reasonable; conduct that is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience in the sense that a court should only take the serious step of denouncing conduct as unconscionable when it is satisfied that the conduct is offensive to a conscience informed by a sense of what is right and proper according to values which can be recognised by the court to prevail within contemporary Australian society
Miller's poses the relevant question as "whether or not, on the facts, the conduct is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience" (again citing Gageler, Nettle, Gordon and Edelman JJ in Kobelt).
As to the distinction between the principles informing ss 20 and 21 of the ACL, Miller's notes at [ACL.21.50] The principles of equity governing the setting aside of transactions for unconscionable conduct inform, but do not control the interpretation of the prohibition on statutory unconscionable conduct: s 21(4)(a). The difference is that ACL s 20 requires a special disability of which the stronger party takes unconscientious advantage, whereas ACL s 21 involves an evaluative inquiry that is not limited in that way: Good Living Company Pty Ltd v Kingsmede Pty Ltd [2021] FCAFC 33; (2021) 284 FCR 424 at [4] (Allsop CJ).
In Kobelt, Gageler J commented (at [88]-[90]) on the difference between the statutory and equitable standards for unconscionable conduct (footnotes omitted): 88 … "Unconscionability", as has been long and well understood, "is not a slight matter, and behaviour is only unconscionable where there is some real and substantial ground based on conscience for preventing a person from relying on what are, in terms of the general law, that person's legal rights". 89 Parliament's appropriation of that terminology in s 12CB shorn of the constraints of the unwritten law is indicative of an intention that conduct of the requisite gravity need not be found only in a fact-pattern which fits within the equitable paradigm of a stronger party to a transaction exploiting some special disadvantage which operates to impair the ability of a weaker party to form a judgment as to his or her best interests. The requirement to administer the standard in the totality of the circumstances taking account of the considerations identified in s 12CC is a further indication that the standard has potential application within a range of factual scenarios not all of which would be recognised in equity as giving rise to relief on the basis of unconscionable conduct. … 90 Important to the resolution of this appeal, in my opinion, is that what Parliament's appropriation of the terminology of equity in the expression of the normative standard in s 12CB does not do is to authorise a court exercising jurisdiction in a matter arising under that section to dilute the gravity of the equitable conception of unconscionable conduct so as to produce a form of equity-lite. The appropriation of the terminology of equity does not allow a court to adopt a process of reasoning which starts with the equitable conception of unconscionable conduct, involving exploitation of a special disadvantage, and then uses considerations identified in s 12CC to water down the court's assessment of what amounts to a special disadvantage or to allow the court to arrive more easily at an assessment that conduct amounts to exploitation.
The Full Court of the Federal Court in ACCC v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40 (Quantum) similarly rejected the proposition that statutory unconscionable conduct (whether by reference to ss 12CB and 12CC of the ASIC Act or ss 21 and 22 of the ACL) requires some form of pre-existing disability, vulnerability or disadvantage of which advantage was taken (Allsop CJ, Besanko and McKerracher JJ at [78]).
It should be noted that the alternative view has been expressed by a minority of the High Court (Kiefel CJ and Bell J in Kobelt), being that statutory unconscionable conduct also requires a degree of exploitation or the taking advantage of a more vulnerable person.
The statement by the primary judge (at [569]) that the focus of the unconscionability prohibition is "on exploitative commercial transactions" thus does not appear to accord with the position taken by a majority of the judges in Kobelt.
The Full Court of the Federal Court pointed out a set of general considerations as to the approach to unconscionability in ACCC v Lux Distributors Pty Ltd [2013] FCAFC 90 at 41 (Allsop CJ, Jacobson and Gordon JJ): The statutory norm is one which must be understood and applied in the context in which the circumstances arise. The context here is consumer protection directed at the requirements of honest and fair conduct free of deception. Notions of justice and fairness are central, as are vulnerability, advantage and honesty.
It is also relevant to note that the Full Court of the Federal Court has emphasised the seriousness of an allegation of unconscionability, noting Gageler J's statements in Kobelt at [90] that statutory unconscionable conduct does not authorise a dilution of the gravity of the equitable concept of unconscionable conduct (see Quantum at [88], Unique International College Pty Ltd v ACCC (2018) 266 FCR 631; [2018] FCAFC 155 (Unique) at [155] (Allsop CJ, Middleton J and Mortimer J, as her Honour then was)).
In the present case, the conclusion that the unconscionable conduct claim in relation to the sale of the shares to the appellants in the first place fails for the reasons that the misleading and deceptive conduct claim based on the representations alleged to have been made in relation to the acquisitions is not in my view incorrect (leaving aside any notion of whether or not the conduct was exploitative).
However, that does not address the appellants' core contention (Grounds [17]-[18]) that the primary judge's consideration of the unconscionable conduct claim was limited to the allegations made at [35], and that there was therefore a failure to consider the appellants' submissions on the matter.
Turning to those other allegations, and noting that the appellants do not seek that the matter be remitted for a re-trial on the allegations not expressly dealt with by his Honour, they may be addressed as follows.

[42]

[A41] and [35]

[A41] sets out an allegation of unconscionable conduct against Ms Kelly and Mr Booker alleging breaches of s 21 of the ACL and/or s 12CB of the ASIC Act s 12CB. The particulars to [A41] refer to the particulars at [A11]-[A36]; in oral submissions, the appellants clarified that this was intended to be a reference to the conduct set out in [A11]-[A36], rather than a reference to the particulars relevant to those paragraphs (AT 44.32.36).
[35], while not specifying s 21 of the ACL, employs the language of that section in making the allegations of unconscionable conduct against the respondents, particularising the conduct at [5]-[8], [24]-[25], [28]-[32].
The challenge at Grounds 17(b)-(c) to the primary judge's reasoning appears to be that the primary judge failed to consider the "course of conduct" adopted by the respondents (see AT 45.12-18). The allegations at [A41] and [35] each extensively cite the rest of the pleading, and the appellants claim that the primary judge failed to engage with the actions of the respondents (as set out throughout the pleadings) taken as a whole.
In their written submissions, the appellants emphasise that the breach of s 21 of the ACL was through an unconscionable "course of conduct" taken by the respondents from about 2012. The "gravamen" of the error asserted by the appellants is the failure to consider the "whole course of conduct" (see AT 45.12-18; 45.33), comprised of: the promise (and later denial) that the appellants would get a legal title in the land; the misappropriation of company income and share capital for themselves; the charging of unreasonable fees; the taking over of the company by selling themselves shares for nominal sums; the refusal to provide accounts; the appointment of administrators; the sale of the land and business at an uncommercial price in breach of the 80% promise; the threats to evict residents unless new agreements were entered into with significantly higher site fees; and the assertion that the cabins were fixtures.
There appear to be two related contentions: that each of the above acts alone was unconscionable; and that the entire course of conduct (comprised of those acts) was unconscionable (as set out at [114] of the aide memoire). That the appellant's primary issue is with the failure to consider the "course of conduct" in its totality was emphasised in oral submissions (AT 12.10, 20.1-8; 45.39-44), with the solicitor for the appellants stating that "all those actions over the years amounted to a course of unconscionable conduct".
Section 21(4)(b) of the ACL relates to a "system" or "pattern" of behaviour, stating the intention of Parliament that: this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and
The Full Court of the Federal Court in Unique at [104] clarified the difference between a "system of conduct" and "pattern of behaviour", also emphasising the fact-dependent nature of the application of sub-s (4)(b): A "system" connotes an internal method of working, a "pattern" connotes the external observation of events. These words should not be glossed. How a system or a pattern is to be proved in any given case will depend on the circumstances.
The natural meaning of "system" or "pattern" appears to target a specific repeated behaviour, with cases brought on the basis that the same conduct has been repeated in respect of several consumers (see Unique [106]-[110], [127], [140]; Productivity Partners Pty Ltd (t/as Captain Cook College) v ACCC (2023) 297 FCR 180; [2023] FCAFC 54). This can be contrasted with the present allegation, which involves a disparate variety of behaviours, all involving the same group of consumers (the appellants). Despite this, the appellants' submission is that these disparate behaviours should be characterised as a "pattern" within the meaning of sub-s (4)(b).
That the intention of sub-s (4)(b) is to target a repeated behaviour or a particular operating methodology which operates as regards multiple consumers (as opposed to a range of disparate behaviours) can also be inferred from the approach taken by courts to determining whether there is a pattern. The focus of this enquiry is on whether the evidence of a few consumers can be taken to be representative of the experience of consumers more generally (see Unique at [84], [110]-[111], [208]; ACCC v Retail Food Group Ltd [2022] FCA 961 at [42]-[48] (Katzmann J); ASIC v AGM Markets Pty Ltd (in liq) (No 3) (2020) 275 FCR 57; [2020] FCA 208 at [387] (Beach J)), such that the impugned behaviour can correctly be characterised as a "system" or "pattern". The necessary implication of this question is that the sub-section is intended to target particular behaviour which operates as regards multiple consumers. That is something quite different to the disparate behaviours contended by the appellants to constitute a system here.
This Court was not taken to any authority specifically considering whether a set of otherwise unconnected acts can together constitute statutory unconscionable conduct. The case law typically involves a specific act or behaviour, or operating methodology, that has effect as regards multiple consumers.
That said, it is worth again noting the definition of statutory unconscionable conduct, as set out in Miller's at [ACL.21.60] citing Kobelt: "conduct that is not in good conscience, irreconcilable with what is right and reasonable; conduct that is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience". While it is clear that the Kelly-Booker respondents' conduct over the relevant period cannot be characterised as a "system" or "pattern" of behaviour, there is nothing in either the statute or the relevant case law to the effect that a course of conduct taken over many years could not be "so far outside societal norms of acceptable commercial behaviour as to warrant condemnation" for the purpose of s 21.
The question is whether, for the purposes of s 21(1), the entirety of the impugned behaviour can be described as "engag[ing] in conduct" for the purposes of s 21(1). Given how disconnected some of the acts are (for example, the initial promotion of the allotments and the subsequent placing of the company into voluntary administration), it is difficult to reconcile that lack of cohesion with a characterisation of all the conduct being part of an overall course of conduct that was unconscionable. Noting what was said in at the hearing at AT 46.44-47.41, the submission is that the course of conduct includes essentially all behaviour commencing with the promotion of the Park to the residents, through to the present day. The appellants' position, however, appears to be that while it would be open to find "any number of contraventions" it was not open to his Honour to find no contravention at all (AT 47.33-34).
The Kelly-Booker respondents' submission (see commencing at AT 83.40) is that the words "in connection with", requiring that the unconscionable conduct be linked to the supply of goods or services, implicitly import a temporal element as it is only the conduct in connection with said supply that can be considered. Counsel for the Kelly-Booker respondents cited Monroe Topple and Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; [2002] FCAFC 197 at [114]-[115] (Heerey J, Black CJ agreeing), which involved consideration of s 51AC(1) of the Trade Practices Act 1974 (Cth) (equivalent to s 21(1) of the ACL): 114 As a matter of language s 51AC(1) is directed not to conduct in trade or commerce generally, but rather to conduct in trade or commerce in connection with a particular kind of transaction, namely the supply or acquisition of goods or services to or from a person (other than a listed public company). This may be contrasted with s 52(1) which simply provides that a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
While the context of that case (being significantly different to the facts of this case) does have bearing on its application in a wider context, the emphasis on the importance of "in connection with" does lend credence to the respondents' contention. In my opinion the years long course of behaviour by the Kelly-Booker respondents (comprising a number of disparate aspects not directly connected with each other) cannot be classified as "conduct" for the purposes of s 21.
Looking then at the impugned conduct individually, I do not consider that the allegation of unconscionable conduct in respect of each of the alleged acts is made out. As to the promise (and later denial) that the appellants would obtain a legal title in the land, the appellants have failed in their challenge to the representations alleged in this regard, which is fatal to the allegation that the making (and later departure) from the representations was unconscionable conduct. As to the "misappropriation" of company income and share capital for themselves and the charging of unreasonable fees, his Honour dealt with these complaints (as noted above) and I see no error in his Honour's conclusions. As to the taking over of CHB by selling themselves shares for nominal sums, his Honour found this to be oppressive conduct (by reference to the failure to consider the interests of other members). In those circumstances a finding of unconscionable conduct in relation to the same conduct would not take matters further. Again, as to the refusal to provide accounts, this was accepted to amount to oppressive conduct. A finding of unconscionable conduct would not have led to a different outcome in terms of the relief sought.
As to the appointment of the Administrators, while his Honour considered this to be in highly suspicious circumstances, he was not prepared to conclude that the defence of the s 247A proceedings as a whole was oppressive conduct or in breach of directors' duties, and it was essentially the costs of those proceedings that led to the debt position in which CHB was placed. The decision of the directors to withdraw financial support for the proceedings led, in the Administrators' opinion, to the company becoming insolvent. (In this context, his Honour's observation in hindsight as to whether the s 247A proceedings were well conceived is apt.)
As to the sale of the land and business being at an uncommercial price in breach of the 80% promise, the complaint as to the sale of the land at an undervalue does not accord with the valuation of the Park that the Administrators obtained - and turns largely on acceptance of the proposition as to the value of the business itself (in circumstances where it appears to have been influenced by the management agreements with HBS). In any event, as his Honour made clear, complaints as to the sale were properly directed to the liquidators or directors on behalf of the company. The fact remains that the members of the company still retain their shares (and their entitlement to occupy their allotments). Although the complaint is that the shares are now worthless, there was no evidence to support that assertion. Although it is true that there are prohibitions on sales of shares once a company is in the course of winding up (a transfer of shares in a company in voluntary administration or liquidation will only be effective if the liquidator/administrator gives written consent, or if the Court permits), the benefit of occupation under the terms of the site agreements with CHB remains (as CTP has been found to be bound thereby) and there has been no real consideration of any limitations on the transfer of those benefits in due course. The complaint that breach of the 80% rule was itself unconscionable conduct suffers from the problem that the sale was by the Administrators who were not bound by the Constitution; and the propounding of the DOCA was in circumstances where the company had been placed in administration and was not in a position to pay its debts (without financial support from the directors). In my opinion it is not unconscionable conduct in those circumstances (i.e., where the company was no longer a going concern) for the directors to propound a DOCA that did not fulfil the 80% rule.
Finally, as to the threats to evict residents unless new agreements were entered into with significantly higher site fees and the assertion that the cabins were fixtures, one obstacle to a conclusion that this was unconscionable conduct is that it was based on legal advice. While legal advice is not a panacea to an allegation of unconscionable conduct, the giving of that advice places in context Ms Kelly's evidence, on which the appellants rely, that it was not her opinion that ownership of the cabins (as fixtures) would pass to CTP. The real difficulty, however, is that any disappointment or distress caused by this aspect of the conduct was transitory. Although there were letters referring to the taking of possession of the allotments, it is relevant to note that these were based on non-payment of site fees and that no one was evicted in any event.
Thus Ground 18 is not made good.
Ground 19 again turns on the alleged failure to take into account evidence and compelling inferences. That cannot be sustained for the reasons given earlier (see [342]-[348]).
Turning back then to ground 14, it will be recalled that this is a complaint as to the failure to give reasons why the sale of the land was not unconscionable, in circumstances where members had been assured many times, over several years, in print and orally, that the land could not be sold unless 80% of members agreed. True it is that his Honour dealt with the complaint as to the sale of the Park under the heading "Sale of Park to CTP" (see at [555]-[559]) as part of his consideration of the numerous allegations of conduct said to be oppressive. His Honour identified the two difficulties with that claim: first, that the restrictions on sale of the Park imposed by the Constitution no longer applied; second that entry into the sale was mandated by the DOCA.
His Honour did not separately address the complaint about sale in breach of the 80% rule in the section of his reasons dealing with unconscionable conduct. However, his Honour had dealt with not unrelated allegations: the (unpleaded) sham administration claim (see [553]-[554]) and, as noted above, the allegation that the sale was oppressive conduct. Reading his Honour's reasons as a whole, it is tolerably clear that his Honour did not consider the sale of the Park, in the circumstances in which they had occurred as part of the administration of CHB by the Administrators to be unconscionable conduct. That conclusion must be correct. Once the company was in administration, the scenario of a shareholder majority decision to sell the Park had in effect evaporated. The company was in the control of the Administrators and the sale of the Park (as mandated by the DOCA) was a matter for resolution by the creditors. Hence any failure to give separate reasons on this aspect of the conduct under the unconscionable conduct head leads nowhere; and, in fairness to his Honour, the convoluted way in which the unconscionable conduct claim was pleaded (by way of particulars harking back through various parts of the pleading) was likely to have led to the fact that it was addressed compendiously and not separately. Ground 14, even if established, would not warrant a remittal of the matter for re-trial; and would certainly not warrant orders granting final relief of the kind claimed in favour of the appellants.

[45]

Kelly-Booker respondents' submissions

The Kelly-Booker respondents point out that the pleaded case of harassment and coercion focussed on particularised conduct between 14 November 2019 and 14 January 2020 (noting [28] of the pleadings); and that it did not span "many instances over two years". They say that that conduct comprised communications informing the appellants of the financial demise of CHB, the sale of the Park to CTP, and proposed RSAs to be entered into with the appellants. The particularised written communications were: a letter dated 14 November 2019; a letter dated 2 December 2019; an email dated 8 December 2019; an email dated 11 December 2019, which enclosed a letter of legal advice received from the solicitor, Mr Vrisakis, as to the status of the appellants' cabins; and a letter dated 14 January 2020.
It is noted that detailed submissions were directed to this conduct (recorded at [591] of the principal judgment); and his Honour accepted them, noting (at [592]) that there had been no reply of substance to those submissions. His Honour said that: where the relevant conduct involves asserting a legal conclusion, that conduct does not become misleading or deceptive (or become a form of harassment or unconscionable) just because the conclusion is ultimately rejected by the court: compare Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 at [35]-[43]. The assertions made by Ms Kelly and Mr Booker were made in an adversarial context. It was not alleged that Ms Kelly and Mr Booker lacked a bona fide belief that they were entitled to make the assertions.
The Kelly-Booker respondents say that the pleaded case focussed on a debate about the necessity of the appellants to enter into new RSAs with CTP, and the status of the appellants' cabins after the sale of the Park. They say that the parties were genuinely at odds on this issue; and that the fact that NCAT subsequently held that the appellants continued to enjoy rights of occupation under the Retirement Villages Act, does not render the preceding correspondence unduly harassing or coercive. Further, they maintain their submission that no loss has arisen.

[46]

Reply submissions

In their reply submissions the appellants appear to accept that the events of March 2020 were not particularised in the pleading at [25] but they say that these were squarely part of their case at first instance (referring to their submissions made at first instance) and they say that it cannot be said that the Kelly-Booker respondents were taken by surprise or did not know the case they were required to answer. The appellants say that, at first instance, the Kelly-Booker respondents engaged with the March letters in their submissions, without complaining that these letters were not explicitly pleaded.
The appellants say that it was in error for the primary judge to conclude (at [592]) that the assertions made by Ms Kelly and Mr Booker were made in an adversarial context because the offending conduct went well beyond "asserting a legal conclusion".
As to his Honour's observation that it was not alleged that Ms Kelly and Mr Booker lacked a bona fide belief that they were entitled to make the assertions, the appellants say that Ms Kelly admitted in cross-examination that she lacked a bona fide belief that they were entitled to make the assertion that the cabins were fixtures and therefore belonged to CTP, referring to Ms Kelly's acceptance of the proposition that she conveyed an advice to the appellants that was not her genuine opinion (8/09/2021; T 625.41-626.43). The appellants also note that personal guarantees were signed by Ms Kelly and Mr Booker for the performance of the sale and purchase agreement, which included terms that the shareholder/residents' cabins were not part of the sale (see cll 51.3; 51.5).
The appellants also point to the fact that the Administrators' report to creditors states that CHB owned "land, buildings and improvements … but excluding the shareholders' dwellings erected thereon"; and that the Constitution of CHB also contained an acknowledgement that any dwelling on the shareholder/residential site was the property of the shareholder.
The appellants also maintain that the primary judge erred by saying (at [593]) that "In this regard the claims based on the letters written by Mr Vrisakis are particularly problematical. It is questionable whether those letters, and particularly the letter to NCAT, were even conduct "in trade or commerce"." The appellants say that s 50 of the ACL does not require that the conduct be "in trade or commerce" and, in any event, Mr Vrisakis was not a party to the proceeding. The appellants say that it the use to which the directors put his advice that formed part of the harassing and coercive conduct.
The appellants maintain that the directors must have known that the cabins belonged to the shareholders and that any assertion to the contrary could not have been a mere assertion of a legal conclusion. It is submitted that the conduct was intended to harass and coerce, and that it had the desired effect. The appellants note that whether conduct is unduly harassing or coercive depends not on a line-by-line analysis but on the overall impression (citing ASIC v Accounts Control Management Services Pty Ltd [2012] FCA 1164 per Perram J at [17]) and they maintain that the conduct in this case "crosses the line".

[49]

Appellants' submissions

The appellants say that their claim for compensation (R14) was for economic and non-economic loss, disappointment and distress arising from misleading and deceptive conduct, harassment and coercion, unconscionable conduct, and oppressive conduct under the Corporations Act, which did not necessarily flow from the initial share purchase.
Further, the appellants argue that reliance is not relevant to the claims for undue harassment or coercion (s 50 of the ACL) or unconscionable conduct (s 21 of the ACL). In relation to the claim of misleading and deceptive conduct (s 18 of the ACL), the appellants say that there was ample evidence that they would not have bought their allotments or built their homes if they had not been promised they were somehow buying their allotments and that the land could not be sold from under them.
The appellants contend that his Honour failed to consider their submissions supporting their claim for compensation under the ACL, Corporations Act and otherwise or to give reasons for rejecting these submissions. They note that in their submissions before the primary judge, the heads of loss were identified as including: disappointment and distress; loss of value of shares (the shares in CHB, for which shareholders paid around $10,000 to $20,000, now being said to be worthless); loss of value of their homes (ranging from $50,000 -$300,000) (those having been incorrectly constructed on site rather than as transportable homes as required by the DA, or having been damaged or destroyed by floods); and monetary loss such as legal costs (including the shareholder/residents' solicitor/client costs of the s 247A proceedings before Black J of over $100,000 and legal costs of the NCAT proceedings).
The appellants note that compensation for oppression can be awarded under s 233 of the Corporations Act for acts or omissions in the conduct of affairs which is "unfairly prejudicial to, or unfairly discriminatory against, a member or members" rather than merely "oppressive" and that this includes discrimination against a member in a capacity other than as a member. The appellants say that in the present case, the oppression was in the capacity both as members and also as residents of the retirement village operated by the directors. Reference is made to Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459 at 471; [1985] HCA 68 per Brennan J as to the scope of the 1983 amendments to the predecessor oppression provision, extending to conduct which was "burdensome, harsh and wrongful".
The appellants contend that it would be appropriate for this Court to make orders under s 237 of the ACL or s 233 of the Corporations Act and to order an enquiry into damages.

[50]

Kelly-Booker respondents' submissions

As to the first category of claimed misleading and deceptive conduct (that the appellants were promised they would receive interests in their Allotments), the Kelly-Booker respondents note that the appellants did not at trial seek to rescind their purchase agreements; rather, they all wanted to retain their A-Class shares (30/08/2021; T 2.8-43). They point to the observation by the primary judge at [573] that: As to economic loss, the obvious basis for a claim would be if the price paid by the plaintiffs for their shares exceeded the true value of the shares at the time of purchase. The plaintiffs presented no evidence, however, that that was the case.
In relation to any claim for non-economic loss arising from the same asserted representations (that the appellants would receive an interest in land as well as their A-Class shares), the primary judge said (at [581]): It must be remembered that the pleaded allegation is that the plaintiffs would receive an interest in land as well as the shares they were buying in CHB. The problem for the plaintiffs is that there is no obvious link between the state of affairs which has resulted in the disappointment, distress and anxiety which they complain about on the one hand, and any falsity in that particular representation on the other. If the plaintiffs had obtained ownership of their allotments as well as ownership of the shares, they would still have been dependent upon CHB, as the owner of the Park, providing them access to their lots and the services required to live there. In these circumstances, had I concluded that there had been misleading and deceptive conduct by Ms Kelly and Mr Booker on behalf of CHB, I would still have rejected the plaintiffs' claim for damages as too remote.
The Kelly-Booker respondents note that the primary judge also observed (at [579]) that the present case is much more complicated factually than the cases where damages have been awarded to plaintiffs for disappointment or distress as a result of a ruined holiday (referring to Jarvis and Baltic Shipping) or having received a notification of having won a prize in a lottery which turns out to be incorrect (referring to Kuzmanovski). The Kelly-Booker respondents say that the present case bears no resemblance to such cases and the limited circumstances in which damages for disappointment and distress (not consequent upon personal injury) can be awarded.
As to all the claims for damages for non-economic loss, the Kelly-Booker respondents say that: the appellants enjoyed years of exclusive occupation of their allotments and use of the Park; none of the appellants was evicted from the Park by the directors and that the appellants continue to have the use and enjoyment of their allotments; none of the appellants entered into new RSAs; and NCAT has now held, pursuant to s 40 of the Retirement Villages Act, that CTP is bound to perform and observe the obligations and terms arising from the By-Laws and CHB's Constitution (Tait v Coolah Home Base Pty Ltd [2021] NSWCATCD (5 July 2021) at [166], [168]-[169]; upheld on appeal in CHB v Tait).
Accordingly, the Kelly-Booker respondents argue that the appellants still possess the same rights of occupation and use of their allotments, and the Park, as existed prior to its sale to CTP; and now owe their corresponding obligations to CTP.
Further, the Kelly-Booker respondents argue that a sum of $200,000 for each appellant could not be appropriate compensation for non-economic loss arising from any of the conduct complained about (whether individually or collectively). They note that only $5,000 was awarded for the disappointment and distress of a pleasure cruise that was prematurely ended by the shipwrecking of the cruise-liner, which amount was described as "very generous" (Baltic Shipping at 387) and that only $2,000 was awarded in Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733 at [920] (Garling J) for an aborted European river cruise that had to proceed by bus. The Kelly-Booker respondents say that in the present case, while the administration of CHB, the sale of the Park, and the ensuing litigation may have been stressful, the appellants still enjoy exclusive use of their allotments.
As to the other two categories of misleading and deceptive conduct (the 80% rule and the requirement to enter into new RSAs), the Kelly-Booker respondents say that, again, no evidence was led as to economic loss; and that, for the above reasons, no damages for non-economic loss are recoverable.
The Kelly-Booker respondents submit that the same reasoning applies in relation to the claims of unconscionable conduct, as well as the claims for harassment and coercion.
In relation to the other losses referred to in the appellants' submissions, the Kelly-Booker respondents say that: no claim was brought for the loss of value of the appellants' A-Class shares (nor are the allegations of misappropriation maintainable in light of the unchallenged findings made by the primary judge); no claim was brought for the loss of value of the appellants' dwellings constructed at the Park (and the directors took no dwellings); and the costs of the NCAT proceedings were not agitated in the proceedings at first instance before the primary judge nor was compensation sought (or evidence adduced) for the same. It is noted that costs were refused by NCAT (Coolah Home Base Pty Ltd v Tait [2023] NSWCATAP 3).
As to the proposed enquiry into damages under s 237 of the ACL or s 233 of the Corporations Act, the Kelly-Booker respondents say that this is not relief formally sought on appeal; nor were the proceedings conducted on the basis that any enquiry or assessment of loss would be postponed (referring to the principal judgment at [85]-[89]); and no account was sought (referring to [86], [507]). The Kelly-Booker respondents say that the proposed orders O4 and O5 were not sought below and cannot now be raised on appeal (citing Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438 (Latham CJ, Williams and Fullagar JJ); [1950] HCA 35). It is noted that the appellants did not seek to postpone the assessment or quantification of damages or monetary compensation.
Finally, as to the additional relief sought on the appeal, the Kelly-Booker respondents submit as follows.
As to proposed Order 3A, that recission of the sale of the land by CHB to CTP is not possible where restitutio in integrum is impossible (citing [441] of the principal judgment). The Kelly-Booker respondents say that this is an essential pre-condition to such relief (Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 at [27]-[29] (Leeming JA, Beazley P and Sackville AJA agreeing)) and that the proposed order also does not grapple with CTP's otherwise indefeasible title to the land (the subject of their Notice of Contention).
As to proposed Order 3B, that this is not a remedy consistent with the rights the appellants assert they believed they had acquired in respect of the land. The Kelly-Booker respondents point out that the appellants assert no error in what the primary judge held (at [424]-[433]) in rejecting this claim for relief at trial. Further, it is noted that such relief would affect CHB, which has otherwise filed a submitting appearance in the appeal.
As to proposed Order 3C, that while relief for shareholder oppression under s 233 of the Corporations Act, or possibly under s 1324(10) of that Act, can entail making compensation orders in favour of the relevant company (citing LPD Holdings (Aust) Pty Ltd v Phillips [2013] QSC 225 at [44]-[53] (McMurdo J)), it has been held that "the oppression remedy does not exist to compensate [a shareholder] for legal or equitable wrongs nor does it contemplate an order for payment of compensation for a shareholder's loss by a director's breach of statutory duty" (citing Nawar v Newcrest Mining Ltd [2022] FCA 424 at [46] (Cheeseman J); and also referring to Lukaszewicz v Polish Club Ltd [2019] NSWSC 446 at [271] (Black J)). The Kelly-Booker respondents point to the lack of evidence as to damage or loss; and say that no claim for an enquiry as to damages or account was formally pleaded or sought at trial (referring to [86], [507] of the principal judgment). It is noted that the primary judge rejected the appellants' application to bifurcate the proceedings between liability and damages ([85]-[89]), which decision is not the subject of appeal.

McMillan v Coolah Home Base Pty Ltd

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Judgment (54 paragraphs)

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Legislation Cited (11)

Cases Cited (68)

Cited By (1)