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[2011] VSC 85
Supreme Court of Victoria
2011-04-19
JUDD J
Original judgment source is linked above.
Partnership - Partnership property - Construction of partnership agreement.
Receiver - Partnership property - Trial of a separate issue under r 47.04 of the Rules of Court.
For the First to Seventh, Ninth and Eleventh to Fourteenth Defendants
1 On 16 December 2010, James Patrick Downey was appointed interim receiver of unsold leaseholds at the Somers Holiday and Caravan Park and the Koonwarra Holiday and Caravan Park, and all proceeds from the sale of such leaseholds. The appointment was made pending the delivery of judgment on an application by the plaintiff, Wimpole Properties Pty Ltd, for the appointment of a receiver to partnership property in the control of the defendant, Beloti Pty Ltd. On 31 January 2011, Mr Downey was appointed receiver of all unsold leaseholds, including those at the Bluegum Holiday Park. While there was no dispute between Wimpole and Beloti that their partnership was dissolved, there was a dispute as to what constituted partnership property. That dispute was reflected in the pleadings in this proceeding and in proceeding 164 of 2010, issued out of the County Court of Victoria and transferred to this court. In the County Court proceeding Beloti and an associated entity are plaintiffs and the defendants include Wimpole.
2 In the absence of a determination as to what constituted partnership property, the receiver was inhibited in the exercise of his powers. All parties supported a separate trial, pursuant to Rule 47.04 of the Rules of Court, to determine that question. The terms of the partnership between Wimpole and Beloti are to be found in an agreement in writing, dated 9 March 2005, made between Wimpole, Beloti and Simms Corp Management Pty Ltd, a company associated with Beloti. The particular questions for determination are as follows:
(a) whether and to what extent the Nicholson River Property constitutes partnership property;
(b) whether and to what extent the Nicholson River Business constitutes partnership property;
(c) whether and to what extent the Blue Gum Business constitutes partnership property;
(d) whether and to what extent the Blue Gum Business constitutes partnership property; and
(e) whether James Patrick Downey, the Receiver appointed pursuant to orders made previously in this proceeding, ought to be appointed Receiver and Manager over any further partnership property and if so, which?
3 In my opinion the land and business comprising each of the properties known as Blue Gum, Nicholson River, Somers and Koonwarra was and is beneficially owned by Wimpole and Beloti in the proportions mentioned in cl 4.1 of the partnership agreement. They agreed that the land would be subdivided into leaseholds, initially granted to a special purpose development company, and eventually sold and assigned to members of the public. It is common ground that the leaseholds, once created, became partnership property.
4 Following subdivision and the sale of the leaseholds, the owner of each freehold had three remaining interests - the business operation conducted on the land, the reversionary rights under each lease, and the unleased portion of the land.
5 I have found that the businesses, acquired with the land, were owned by the partners in the same proportions and capacity as the land. The businesses were part of the 'property' acquired by each partner. The parties intended that those businesses would provide income during the development phase and that the income would be shared, in the case of Somers and Koonwarra, in the same proportions as ownership.
6 There is a qualification to the beneficial ownership of the continuing freehold interest in the unleased portion of the land. I have found that occupation of this land was essential to the provision of the services. Thus, a right of occupation was necessarily included in the Management Rights to be acquired under cl 8 of the partnership agreement.
7 The dispute between the partners, as to what constituted partnership property, related primarily to the freehold interest in the Blue Gum and Nicholson River land and the business operations conducted on each property to provide services to occupants. If the freehold interests in the land and associated businesses are to be characterised as partnership property, the receiver might then be authorised to assume control of that property for the purpose of sale.
8 Section 24(1) of the Partnership Act 1958 provides:
All property and rights and interests in property originally brought into the partnership stock or acquired whether by purchase or otherwise on account of the firm or for the purposes and in the course of the partnership business are called in this Act partnership property and must be held and applied by the partners exclusively for the purposes of the partnership and in accordance with the partnership agreement.
9 Whether property was brought into the partnership or acquired for the purpose and in the course of the partnership business, depended on the terms of the partnership agreement. Beloti submitted that each of the properties, including the associated businesses, were brought into the partnership or acquired for the purpose of the partnership business, and must be held and applied exclusively for the partnership. It was common ground that the terms and conditions of the partnership were to be found within the partnership agreement, although Beloti sought to have the agreement construed by reference to the terms of each lease, and both parties submitted that certain background facts were necessary to clarify the intention of the parties. Both parties contended for the implication of terms, which were not well articulated.
10 The properties were all purchased at about the same time, although Somers was purchased a little later than the other properties. Wimpole acquired the Blue Gum and the Nicholson River properties and businesses in June 2004 and paid the whole of the purchase price, with the exception of one half of an option fee paid by or on behalf of Beloti. According to the partnership agreement, the earlier of those transactions marked the commencement of the partnership.
11 Wimpole paid $1,050,000 for the Nicholson River land and $450,000 for the business. The land and business at Koonwarra were purchased by Wimpole and Beloti, who are both registered as proprietors of the land. Beloti is the registered proprietor of the Somers land. The businesses at Blue Gum and Nicholson River are presently conducted by Wimpole. Beloti presently carries on the businesses at Koonwarra and Somers.
12 Peter Simitzis, a director of Beloti, was a real estate agent. He sought to explain the background to the partnership by reference to an earlier development successfully undertaken by him at the Dromana Holiday and Lifestyle Village. He said that he sought to replicate his success in partnership with Wimpole. He had been introduced to Andrew Barnet Troedel, a director of Wimpole, by Geoffrey Downing who then worked for Mr Simitzis as a commission agent involved in the sale of leaseholds at Dromana. Mr Troedel had been introduced as a person with access to funds and looking for an investment.
13 Mr Simitzis said that his development concept was reflected in the partnership agreement. His concept involved the purchase and development of existing caravan parks, including the business. He said that the existing business operations were intended to fund the costs of further development on the land, including the subdivision and sale of leaseholds. His plan was to divide the land into leaseholds, each large enough to become a site for a caravan or moveable home. The leaseholds would be initially granted to a development company, which would then assign them to third parties at a price that was expected to yield a substantial profit. Such evidence of sales as was available indicated a sale price for each leasehold of around $50,000 and upwards. While some leaseholds appear to have been sold for more than $200,000, it would appear that such sales included a cabin. The leases were for a term of 99 years with an option to renew for a further 99 years.
14 Mr Simitzis deposed that infrastructure and development work was required at each park to support the subdivision and eventual occupation of the leaseholds. He deposed that Mr Troedel agreed to contribute capital towards the purchase of Blue Gum and Nicholson River and to jointly borrow funds for the purchase of Koonwarra. Mr Troedel denied that he had agreed to contribute capital. He said that he always regarded Blue Gum and Nicholson River as beneficially owned by Wimpole. Mr Troedel said that it was only after those properties had been purchased that Mr Simitzis proposed that he should acquire an interest in some properties. That proposal resulted in the acquisition of Somers and Koonwarra, and his agreement with Mr Simitzis to jointly borrow funds to enable Beloti to acquire a two thirds interest in each property. Those events all occurred before the partnership agreement was prepared and executed.
15 It is often the case that the assumptions or expectations of a party to a transaction do not coincide with the terms of the written document, intended to define rights and obligations. The partnership agreement was no exception. It suffers from ambiguity and omission. In the end, however, it is capable of construction so as to enable the court to answer the questions for determination.
16 The relevant terms of the partnership agreement are set out below:
4.1 On settlement of the purchase of each Project, the property which is the subject of the Project will be owned as follows:-
(a) Nicholson River Holiday Park - Wimpole;
(b) Blue Gum Holiday Park - Wimpole;
(c) Koonwarra Holiday Park - one third Wimpole and two thirds Beloti;
(d) Somers Holiday Park - one third Wimpole and two thirds Beloti.
4.2 In order to better secure repayment to Wimpole of any funds advanced by Wimpole relating to a particular Project or property, Beloti shall, upon the written request of Wimpole to do so, grant to Wimpole a Mortgage over the Title or Titles to the property which are ranked in priority ahead of any other Mortgage or Charge except for any Mortgage or Charge to a Lending Institution, or other third party lender, which has provided funds to assist in the acquisition of the property.
5.1 The parties agree that each Project shall be initially funded as follows:-
(a) Up to 70% of the value of each Project purchased by Beloti or such other amount as can be obtained from a Bank at the best available commercial lending rate at the time at which the Project is acquired;
(b) The balance will be obtained by a mix of monies borrowed from one third party lenders and/or Wimpole in such proportions as Wimpole and Beloti agree.
6.1 The parties further agree that in respect of each Project, they shall incorporate a separate Corporate Entity to take over the Lease of the Property and for the sale of individual Leases in respect thereof, the structure of which shall be as follows:-
(i) The Directors shall in each case be Andrew Troedel, Peter Simms and Geoffrey Downing; and
(ii) The shareholding shall reflect the ownership of the Project in accordance with Clause 4.1 hereof.
6.2 Beloti & Wimpole shall manage each project, save except with respect to the sale of Leases pursuant to Clause 6.1 hereof, in accordance with their proportional interests in the Project referred to in Clause 7.2 hereof.
6.3 Although Beloti and Wimpole shall manage each Project, it is further expressly agreed that Simms Corp Hotels & Leisure Pty Ltd (ACN 109 215 134) of Level 5, 574 St Kilda Road, Melbourne, Vic, 3000 ("Simms Corp") shall be exclusively retained, to market and sell the properties and/or Leases created in respect of each of the Projects.
6.4 The parties agree that Simms Corp shall be paid the following remuneration in respect of all sales negotiated by it in respect of the Projects:-
(a) A fixed commission of $7,000.00 plus GST per site or lease sold;
(b) $300.00 per week rental for use of the Simms Corp Office located at Level 5, 574 St Kilda Road, Melbourne.
(c) A fixed commission of $1,000.00 for each cabin, flat or similar moveable house plus twenty (20) percent of the profit on the sale of new moveable houses sold whether or not in conjunction with the sale of a site or Lease; and
(d) A fixed commission of $8,000.00 for every house and land package sold whether or not in conjunction with the sale of the site or Lease.
6.5 The parties agree that all advertising costs incurred in respect of the sales in respect of any sites or leases relating to any of the Projects shall be borne by Beloti and Wimpole as to 50% and by Simms Corp as to 50%
7.1 The monies received from the sales of any sites or Leases in respect of a particular Project shall be applied in the following order:
In payment of commission and any other monies payable to Simms Corp in accordance with the Terms of this Agreement;
In payment of any legal costs, advertising expenses and any other fees associated with the sales;
In payment of any other fees and expenses payable in respect of the day to day running of the Project, exclusive of any acquisition or development costs;
As to the Balance:-
(i) Nicholson River H.P. - 50% Wimpole, 50% Beloti
(ii) Blue Gum H.P. - 50% Wimpole, 50% Beloti
(iii) Koonwarra H.P. - 1/3 Wimpole, 2/3 Beloti
(iv) Somers H.P. - 1/3 Wimpole, 2/3 Beloti
7.2 The parties further agree that the net profit derived from the operation of each Project up until the last Lot in a Project has been sold shall belong to the parties in the following proportions:-
(a) Nicholson River Holiday Park - Wimpole 100%
(b) Blue Gum Holiday Park - Wimpole 100%
(c) Koonwarra Holiday Park - One third Wimpole, Two thirds Beloti
(d) Somers Holiday Park - One third Wimpole, Two thirds Beloti
8.1 For the purpose of this Clause 3, "Completion of a Project" shall mean the sale of all of the Leasehold Lots comprised in the Project.
8.2 Upon completion of each Project, Simms Corp agrees that it shall acquire the Management Rights in respect of the completed Project in accordance with the formula set forth in Clause 8.3 hereof.
8.3 The amount payable by Simms Corp to Beloti and Wimpole in the proportions in clause 7.1(d) shall be two times the net profit of the Project (on an annual basis) as at the date on which the Project is completed.
"Net Profit" equals Park Income less all expenses relating to the normal running of the Business (but does not include the Manager's wages or interest or borrowings to fund the acquisition of the Park.
The absence of any definition of 'Project', was unfortunate. The reference to 'Simms Corp' was used variously as a reference to Simms Corp Management Advisory Pty Ltd and Simms Corp Hotels and Leisure Pty Ltd.
18 When presenting its case, Wimpole rightly distinguished between three elements of each holiday park - the freehold, leaseholds and the business. It also sought to differentiate the acquisition of the Nicholson River and Blue Gum Holiday Parks, purchased and paid for by it, from the acquisition of the Koonwarra and Somers holiday parks, purchased with Beloti using borrowed funds. Wimpole submitted that the freehold, unsold leaseholds and businesses at Koonwarra and Somers were partnership property, the freehold and businesses at Nicholson River and Blue Gum were not. Wimpole conceded that the unsold leaseholds at Blue Gum were partnership property.
19 Beloti submitted that the freehold and business at each park, including Nicholson River, was partnership property. While conceding that the businesses at Somers and Koonwarra were partnership property, Beloti sought to exclude all four businesses from the scope of the receivership. Its reason for doing so seemed to be no more than a desire to preserve its cash flow from operations. Thus, the questions for determination may be approached by reference to the freehold and the business at each of the four holiday parks.
20 Wimpole relied on the circumstances in which it purchased the Nicholson River and Blue Gum land and related businesses to support its contention that it was beneficial owner, and that land and business did not constitute partnership property. Mr Troedel said that Wimpole paid the whole of the purchase price, with the exception of half the option fee that had been paid by or on behalf of Beloti. The option fee was credited against the purchase price. Beloti's interest in each option was assigned to the Wimpole interests shortly prior to the exercise of the options and the purchase of each property. Wimpole submitted that the option transactions, which included an assignment to Wimpole by Beloti of its rights under the option agreement, resulted in no more than a debt due from Wimpole to Beloti of $5,000 in relation to the Nicholson River option fee and $12,500 in relation to the Blue Gum option fee.
21 Mr Troedel said that the purchase price in each case was not treated as if a loan to the partnership. He also relied on the fact that Wimpole had made a very substantial capital investment at Nicholson River, as evidence of its beneficial ownership. Wimpole also sought to hold Beloti to an admission in its pleadings, to the effect that the Nicholson River land and business were not partnership property. Beloti sought leave to withdraw the admission. Wimpole submitted that leave should be refused. Wimpole also alleged that the partners agreed to abandon Nicholson River as a Project for development under the partnership agreement. It alleged an agreement to abandon that development or to vary the partnership agreement, so that even if Beloti once had an interest in the land and business, as partnership property, it no longer had any such interest.
22 Wimpole placed great reliance on cl 4.1 of the partnership agreement to contend that the partners had clearly acknowledged that Blue Gum and Nicholson River were beneficially owned by Wimpole and not partnership property. It drew attention to the distinction between the use of the words 'Project' and 'property'. That clause provided that 'On settlement of the purchase of each Project, the property which is the subject of the Project will be owned as follows...', and thereafter attributed to Wimpole sole ownership of Nicholson River and Blue Gum.
23 Wimpole also submitted that its entitlement to 100% of the net profit from the day to day operations of those parks (cl 7.2) reinforced its contention, differentiating its properties from the jointly owned freehold and businesses at Somers and Koonwarra. While conceding that the leaseholds created over the property at Blue Gum and granted to Blue Gum Developments Pty Ltd were partnership property, Wimpole submitted that it retained the freehold and reversionary interest. It also submitted that the anticipated sale of 'Management Rights', at the end of each Project, to Simms Corp Management and Advisory (cl 8.2), presupposed beneficial ownership by a vendor in the proportions mentioned in cl 4.1.
24 Following the creation of the leaseholds over the land at Blue Gum, Somers and Koonwarra, there remained unleased portions of land used to provide infrastructure and services to the owners and occupants of the leaseholds. The unleased land was used for roads to accommodate common facilities and services. Wimpole submitted that the unleased land at Blue Gum was intended to remain in the beneficial ownership of the registered proprietor. It submitted that upon a transfer of the Management Rights at Blue Gum to Simms Corp (on completion of a Project) the parties to the transfer would be required to negotiate to agree upon an appropriate rent. This was said to be an implied obligation, because the partnership agreement made no provision for compensation to the owner of the freehold for occupation of that land.
25 Beloti's case at trial was complicated by the fact that the draftsman of the partnership agreement appeared as counsel on behalf of Beloti, and sought to explain the background and meaning of the terms drafted by him. That was unhelpful. The court was denied the usual and necessary objectivity of counsel.
26 Beloti seemed to submit that the freehold and reversionary interest of each registered proprietor was held for the benefit of the partnership, although it did not explain why cl 4.1 attributed sole ownership of Blue Gum and Nicholson River to Wimpole. Beloti argued that the business conducted on each site was essential for the continued operation of the holiday park, and that occupation of the unleased land was necessary for that purpose. Beloti's submissions were not well developed, but I will do the best I can to interpolate.
27 I take Beloti to have submitted that the creation and sale of leaseholds must be supported by essential infrastructure, such as roads, to support common facilities and services. Thus, land required to provide the infrastructure, common facilities and services was necessarily annexed to the leaseholds. I will assume, although there was only disjointed evidence to support the fact, that the infrastructure, common facilities and services were required as a condition of the subdivisions. I take Beloti to have submitted that as the land required to provide the infrastructure, common facilities and services was dedicated to service the leaseholds, a right of occupation must necessarily pass to Simms Corp once it acquired the Management Rights. At that point, any interest the registered proprietor had in the freehold was inconsequential and probably worthless. Thus, Beloti submitted, Simms Corp would also assume ownership of the reversionary interests.
28 Beloti supported its argument by pointing out that Management Rights included the right to collect rent, which was the usual entitlement of the owner of the freehold. That was said to be an indicator of the intention of the parties concerning the nature and extent of the rights acquired by Simms Corp on completion of the Project. Each lease made provision for an annual rent calculated by reference to the lessor's total cost of ownership, which included the cost of infrastructure and services. I take Beloti to contend that having acquired the Management Rights, Simms Corp stood in the shoes of the lessor, the registered proprietor, as beneficial owner of all freehold rights. Beloti argued that unless the party responsible for the provision of the services, including the maintenance of infrastructure, was the party entitled to receive the rent fixed by each lease, the scheme and purpose of the Project would fail.
29 The leases were initially granted by the registered proprietor of the land to a special purpose development company. For example, Wimpole granted leases at Blue Gum to Blue Gum Developments. Upon sale and assignment of a leasehold the relationship of lessor and lessee was between Wimpole and the assignee. The annual rental fixed under each lease was a reflex of the operating expenses allocated across the leasehold. There was no element of ground rent, and no mention was made in the partnership agreement of any rental to be paid by Simms Corp to a registered proprietor after transfer of the Management Rights.
30 Mr Simitzis said that the development concept created by him involved the funding of infrastructure and development works in the first instance from moneys generated from the business operations, and thereafter from the sale of leaseholds. Beloti submitted that the minutes of meetings between the partners, including those on which Wimpole relied for its abandonment case, demonstrated that the freehold and businesses were partnership assets, because the partners had discussed the management of the properties and therefore treated the land and businesses as partnership assets. The argument was entirely circular. In the minutes of the meeting held on 24 October 2006, the partners also discussed a possible joint venture in relation to the Nicholson River property. Beloti submitted that but for an assumption on its part that the Nicholson River freehold was partnership property, it would not have considered such a proposal for a different development scheme. Beloti's reliance on such assumptions was persistent and unhelpful.
31 Submissions concerning the status of the freehold and reversionary interest, as a partnership asset, were primarily directed to Wimpole's claim made in respect of Nicholson River. Wimpole's claim to sole beneficial ownership of Nicholson River was of particular importance because it has entered into a contract of sale. Beloti claimed an entitlement to some part of the proceeds as partnership property, but the basis of its claim and proportion of any entitlement remained unclear.
32 Beloti submitted that the Nicholson River property and the Blue Gum property had been purchased by Wimpole and contributed to the partnership as a capital contribution. Thus, the fact that Wimpole may have borrowed in order to purchase Nicholson River was of no consequence. According to Beloti, such borrowings were to be treated as a liability of Wimpole alone, and did not change the character of the Nicholson River property as one held for the benefit of the partnership. Apart from cll 4.1 and 7.2, the agreement made no provision for any entitlement other for Project profit from the sale of leaseholds after subdivision.
33 It was common ground that the planned development of Nicholson River was not viable and that the parties had agreed that it would not be subdivided into leaseholds. Beloti did not (and could not) contend that Wimpole had breached its agreement to develop the property. Thus, the real issue between the parties in relation to Nicholson River was the status of the property (land and business) as an asset of the partnership, and what was to become of any proceeds of sale. Beloti made no attempt to define its entitlement to the proceeds of sale. That would have required it to confront an unusual feature of the agreement - the disconformity between Project profit share entitlements and the agreed ownership of the properties under cl 4.1.
34 The partnership agreement was a contract to be construed according to ordinary principles. The written terms were plainly defective in many respects. Some important definitions were either absent or confusing. The contract did not expressly deal with the ownership of the reversionary rights or what was to become of the unleased land. The financing arrangements could only be explained by pre-existing arrangements. It is not immediately clear what was meant by the prefatory words in cl 4.1, which referred to the acquisition of a 'Project'.
35 The applicable principles of construction are well understood. The agreement must be construed as a whole. In my view the partnership agreement should be read together with the terms of the leases issued pursuant to the agreement. When construing the terms of the agreement the court should consider what a reasonable person would understand by the language, having regard to the text of the document as a whole, the surrounding circumstances known to the parties and the purpose and object of the transaction.[1] The court should have regard to all the words used in the agreement 'so as to render them all harmonious with one another'[2] and to ensure the 'congruent operation of the various components as a whole'.[3] Commercial agreements should be given a commercially sensible construction.[4] A common sense non-technical approach is to be adopted in the construction of commercial contracts. There is a presumption that the parties do not intend the agreement to achieve an unreasonable outcome.
36 In my opinion, the purpose and object of the partnership agreement was to subdivide the land into leaseholds and sell the leaseholds. The business of the partnership was to profit from the sale of the leaseholds. Not all land was subdivided into leaseholds and leased initially to the special purpose development company. The registered proprietor retained so much of the land as was necessary for the provision of infrastructure and services, such as roads and other common facilities.
37 Upon subdivision, the leases were initially granted to a development company. That step may have been convenient for a variety of reasons, but it was not explained. It would present the development company as a dedicated entity to act as vendor to market and sell leaseholds. In any event, the ownership of the development company reflected the property ownership proportions set out in cl 4.1. That would suggest it was not intended as a vehicle to distribute Project profits, which were allocated in different proportions to 'ownership' entitlements to the properties under cl 4.1. In my view, the use of the special purpose entity, to hold and transfer the leaseholds to the public, was an indicator of the limited scope of the partnership business. The business of the partnership would be carried on through each development company. That business was the sale of leaseholds. By interposing the development company the partners placed the business of the partnership at arms length from the owner of the freehold.
38 An important characteristic of the partnership agreement was the common treatment of property ownership interests in cl 4.1, notwithstanding the different ownership proportions and entitlement to operating profit. Why mention that Wimpole was the owner of Blue Gum and Nicholson River if the ownership rights of Beloti were in some respects different to Wimpole's?
39 Clause 7.2 had a different purpose. For reasons explained below, the calculation of Net Profit from operations at Somers and Koonwarra was designed to reflect agreement that each parties cost of financing its acquisition of a property was not a partnership liability. It was personal.
40 These features of the agreement are explained by the fact that the agreement had been prepared and executed after the properties were acquired, and finance arranged. For example, it would have been known to the parties at that time that Wimpole had paid for Blue Gum and Nicholson River, but that it had been necessary to borrow in order to acquire Somers and Koonwarra, in which Beloti had a two thirds interest.
41 While the agreement adopted uniform treatment of ownership rights in cl 4.1, it differentiated between Nicholson River and Blue Gum on the one hand, and Somers and Koonwarra on the other, in terms of financing arrangements. But in so doing, confirmed the intention that the interest of each partner in the properties was to be held in their own right.
42 The financing arrangements, in cll 4.2 and 5, were predicated on the need to borrow in order to finance the acquisition of properties in which Beloti had an interest. The agreement anticipated advances from Wimpole or a bank. There was an evident assumption that borrowings were not required for Blue Gum and Nicholson River, but would be necessary to enable Beloti to acquire a two-thirds interest in Somers and Koonwarra.
43 The borrowings made to purchase Somers and Koonwarra would attract interest and were to be repaid. As discussed below, financing costs were excluded as a cost against Project profit. Thus, the obligation to pay interest and repay capital must correspond with the acknowledged ownership interests - Wimpole as to one third and Beloti as to two thirds. The agreement made no provision for the recovery by Wimpole of its capital investment in Blue Gum or Nicholson River. Thus, the financing arrangements are consistent with a common intention that Wimpole and Beloti would own and pay for their respective interests in the properties, holding them beneficially on their own account and not on behalf of the partnership as a partnership asset.
44 In my opinion there is no basis to differentiate between the capacity in which Wimpole and Beloti held their respective interests in the properties. The agreement contemplated that Beloti would be required to own and pay for its two thirds interest in Somers and Koonwarra, just as Wimpole had paid for and owned its interest in Blue Gum and Nicholson River.
45 If, as Beloti submitted, each partner was to bring to the partnership a fully funded interest in each property, as if a capital contribution, there was no agreed basis upon which the capital was to be divided on a winding up. The value of each property was, of course, different. There was disproportionate expenditure on the properties by the partners. In addition, the realisable value in land and business would be all but exhausted following the sale of the last leasehold, and the value in the business eventually transfer to Simms Corp. The ownership rights acknowledged in cl 4.1 were to properties of different size and value. Clause 4.1 did not purport to attribute any entitlement to a proportion of partnership capital.
46 In my opinion, the partners' intention, expressed in the partnership agreement, was that each property would not be contributed to the partnership as a partnership asset, although each partner was contractually bound to create the partnership property on the land by means of its subdivision into leaseholds held by a development company. The partners would then profit from the sale of the leaseholds in the agreed proportions. The freehold would remain held beneficially outside of the partnership by each partner in its own right.
47 The narrow definition of the scope of the partnership business, confined to the sale of leaseholds, is consistent with the allocation of 'Project profits' in cl 7.1. Clause 7.1 expressly provided for the application of 'moneys received from the sales of any sites or leases,' ranking in third place [cl 7.1(c)] the 'payment of any other fees and expenses in respect of the day to day running of the Project, exclusive of any acquisition or development costs'. Clause 7.1 divided Project profits in different proportions to the division of ownership, and the entitlements to operating profit. The clause expressly excluded acquisition and development costs from reimbursement out of Project profit from the sale of leaseholds.
48 Following the distribution of Project profit, there would be nothing left to repay advances or divide between the partners on a return of capital. That would explain the absence of any agreed basis to divide capital. After the last sale of a leasehold the realisable value in each property would be exhausted, having been transformed into sold leaseholds and service infrastructure. The agreement made no provision for any change to the ownership of the freehold at that point. In my view, the clear intention of the parties was that each partner would bear its own cost of acquisition and development in the expectation of making a sufficient profit from operations, and the sale of leaseholds, to recoup its original investment. Such costs were only to be shared between them in proportions to ownership - not as an expense paid from Project profits. Such a construction is also supported by the definition of 'Net Profit'.
49 Wimpole was entitled to 100% of the Net Profit from the operation of the Nicholson River and Blue Gum, but only one third of the net profit from the operation of Somers and Koonwarra. The income included site rentals, and fees from the owners of leaseholds already sold. While the definition of Net Profit was not as clear as might be hoped, it was to be calculated without regard to (that is, by not acknowledging as an expense) the manager's wages and interest on borrowings to fund acquisitions. By disregarding those items, the definition acknowledged that the entitlement of Wimpole to one third of the operating profit at Somers and Koonwarra, and the payment to be made by Simms Corp under cl 8.2, were to be calculated before deducting managers wages (which may have a discretionary component) or the interest cost associated with the cost of acquiring the properties, because such expense was the owner's personal liability. The partnership did not assume any obligation to repay loans. These were individual liabilities.
50 The entitlement to profit from operations coincided with the proportional ownership of the properties. The 'property' owned in the proportions set out in cl 4.1 included a business. The distinction in cll 4.1 and 4.2 between a 'Project' and 'property' is confusing. The use of the word 'Project' to describe that which was acquired is to misuse the term. Other references in the agreement to 'Project' make it plain that what was meant in cll 4.1 and 5.1(a) was the purchase of an operating caravan park. A Project had the character of something to be undertaken and completed. It was more correctly used in the agreement to describe the business of the partnership - the proposed sale of the leaseholds. That is the manner in which the expression 'Project' is employed in the preamble to cl 6.1 and in cll 6.2 and 7, although its use in cl 6.1(ii) seems to be a repetition of its misuse in cl 4.1.
51 The use of the expression 'Project' in the phrase 'Completion of a Project', as defined in cl 8.1, 8.2 and 8.3, further confirms its correct use and the limited scope of the partnership business. This definition is a reflex of the real purpose of the joint undertaking by the partners - the sale of leaseholds.
52 It seemed common ground that the businesses conducted on the land at each place and the Management Rights to be acquired under cl 8.2, are one and the same. The Management Rights were not defined, although correspond with the 'operation of each Project', if by that expression is meant the operation of each caravan park and the leaseholds after subdivision.
53 Wimpole argued that the businesses conducted at Somers and Koonwarra were partnership assets, while the Blue Gum and Nicholson River businesses were not. That is inconsistent with the capacity in which all properties were held. There is no reason to treat the position of Wimpole as any different to that of Beloti, save that the in case of Somers and Koonwarra, there are two owners.
54 Beloti relied on cl 8 to argue that the acquisitions of Management Rights (through Simms Corp) necessarily transferred to the right to occupy the unleased portions of the land. Under cl 8.3 the amount payable by Simms Corp to Wimpole and Beloti was in the same proportion as the division of profit on the sale of leaseholds, not in proportion to the entitlement to profit from the operation of the businesses prior to completion of the Project. That distinction would seem to align the respective interests in the Management Rights with the interests in the leaseholds, which all parties accept are partnership property. Ultimately, I do not consider that much turns upon that connection. The distinction between that which had been acquired and was owned by the partners in their own right, and the partnership business, is clearly reflected in the partnership agreement. Apart from the clear acknowledgement in cl 4.1 there are the other powerful indicators mentioned above.
55 I find that each business was a part of the property acquired and owned in the proportions acknowledged in cl 4.1. It was not partnership property. The business operations on the land did not form part of the business of the partnership. As Beloti submitted, the income from the businesses was to be employed by each owner as capital to acquire the property and undertake the necessary development work.
56 It is unfortunate that when preparing the partnership agreement the parties overlooked the need to address the remaining rights of each registered proprietor at the point of completion of each Project. In my opinion, the Management Rights to be acquired by Simms Corp necessarily included a right of occupation. Wimpole did not suggest otherwise. The parties recorded in their agreement the manner in which payment would be calculated without any mention of rent. There is no basis to imply an obligation to pay rent. In the absence of an agreed amount for rent, an implied obligation of the kind suggested by Wimpole would be no more than an obligation to negotiate.
57 Nor is there any basis to imply an obligation to transfer the freehold to Simms Corp or Beloti on acquisition of the Management Rights. Such a term is not necessary to give effect to the agreement or support the rights acquired under it.
Admission - Nicholson River not a partnership asset
58 In view of the foregoing reasons, Beloti's application to withdraw its submission that the land and business at Nicholson River are not partnership property may seem otiose. I will, however, decide that application on its merits.
59 In paragraph 128 of its statement of claim Wimpole alleged that the Nicholson River property and business were not partnership property within the meaning of that expression in the Partnership Act, and that the plaintiff was entitled to a declaration that it was the sole beneficial owner. That allegation was made under a heading 'Nicholson River property and business not partnership property'.
60 The premise for the allegation in the statement of claim was cl 4.1, and those provisions of the partnership agreement dealing with the plaintiff's entitlement to profits generated from the management of Nicholson River. By its defence, dated 23 October 2009, Beloti admitted the allegation. Beloti now seeks to withdraw the admission and deny the allegation. Rule 25.02 provides that withdrawal of a defence or any part of it or an admission or any matter operating for the benefit of the other party, may only be withdrawn with the consent of that party or the leave of the court. Beloti seeks leave to withdraw its admission. Wimpole submitted that leave should be refused.
61 As to when a court should grant leave to withdraw an admission, I was referred to Collie v Merlaw Nominees Pty Ltd.[5] In that case, Warren J (as she then was) stated:
"An admission in a pleading is a serious step for a party to take. It means that proof is no longer required or permitted of the fact admitted as the fact is no longer in controversy between the parties: see Pioneer Plastic Containers Ltd v Commissioners of Customs and Excise [1967] Ch. 597. Further, admissions by pleading entitle the court to make orders in favour of a party to which that party is entitled on those admissions. See r.35.04. As a matter of principle a party who has made an admission in a pleading should not be entitled to withdraw that admission without good cause, for example, that the admission was made in error by the party who prepared or gave the instructions for the preparation of the pleading, or as the consequence of a misapprehension by counsel or solicitor concerning the client's instructions."
" ... it is for the plaintiffs to plead the facts in their statement of claim and if, having pleaded them in the statement of claim, the defendants admit all those facts, then there is no issue between the parties on that part of the case which is concerned with matters of fact. Where there is no issue to be decided there is no proper purpose to be served by admitting any evidence ... ".
"But that evidence is accepted by the court in a case where there are issues of fact between the parties is no reason for holding that evidence should be admitted where all the facts alleged by the plaintiff are admitted by the defendant".
62 Beloti adduced no evidence in support of its application for leave until the second day of the trial, when an affidavit of Mr Simitzis, sworn 8 March 2011, was filed. Mr Simitzis deposed that the defence containing the admission had been filed and served by his previous solicitors, and that he was not aware of the admission until it was recently pointed out to him by his present solicitor, Mr Szmerling. Mr Simitzis gave hearsay evidence of conversations with his operations manager, Lauren Clark, in relation to her preparation of 'a substantial number of detailed responses with supporting evidence', which she apparently emailed to Beloti's former solicitors. Presumably, the material was prepared in response to the statement of claim.
63 According to Mr Simitzis, Ms Clark told him that Beloti's solicitor had advised her that he did not require the responses and evidence at that time, and that the solicitor was not going to read the material. Such a response from the solicitor responsible for the preparation of a complex defence to a very lengthy statement of claim would be so extraordinary as to require direct evidence before being accepted. Mr Simitzis did not recall attending any conference 'so as to verify the accuracy' of a document they would subsequently file on behalf of the Beloti defendants. He went on to say, 'I do not recall having even been given a copy of the defence & counterclaim at the time.' Mr Simitzis said that whenever he was 'specifically asked about the Nicholson River property, I gave express instructions that I considered it to be partnership property'. He said that the admission was not consistent with the instructions he gave to his previous solicitors.
64 I do not regard the explanation given by Mr Simitzis as cogent or satisfactory, although he was not cross-examined. I note that the defence and counterclaim were prepared by senior and junior counsel. Until very recently, junior counsel responsible for the statement of claim had appeared on a regular basis for Beloti and the other related defendants.
65 In the context of the issues between the parties in the litigation, it is difficult to understand how Beloti's former solicitor, and senior and junior counsel, could have made the error Mr Simitzis attributes to them. Ownership of the properties and the status as partnership property was always an important issue. This is the trial of that issue. While Mr Simitzis denied giving instructions to Beloti's solicitor and counsel to the effect that Nicholson River was not partnership property, there was no evidence from the solicitor or counsel or even direct evidence from Ms Clark, in relation to instructions, her prepared responses and her dealings with the solicitor.
66 The admission has been made since 23 October 2009. Beloti submitted that,
The court should allow the Beloti defendants to withdraw the admission, which has erroneously been made, on the grounds, amongst others, that the admission was made in error by the party who prepared the pleading as a consequence of a misapprehension concerning the instructions from the Beloti defendants in that regard.
67 Beloti's submission is at odds with the affidavit of Mr Simitzis, and highlighted the significance of the absence of evidence from the persons who gave instructions and who prepared the pleading. In my opinion the evidentiary foundation for the application by Beloti to withdraw the admission for the purpose of this trial is wholly unsatisfactory. Were it not for the fact that the status of all properties is to be decided in this trial, and Wimpole cannot point to any material prejudice by reason of the withdrawal of the admission, I would have refused leave. I grant leave to Beloti to withdraw the admission. I will hear the parties on costs of and incidental to Beloti's application to withdraw the admission in due course.
68 In paragraphs 127A and 127B of Wimpole's second amended statement of claim it alleged that in about 2006 it agreed with Beloti to abandon the development of the Nicholson River property and the sale of individual site leaseholds contemplated under the partnership agreement. Particulars were given of several conversations between Mr Troedel, Mr Simitzis, the partnership accountant Mr Phillips, and Beloti's business manager, Ms Clark. The substance of the alleged conversations was to the effect that the costs necessary to develop Nicholson River were prohibitive and as a consequence the partners would abandon the proposed development and considered alternative proposals, including a sale of the land and business. Wimpole alleged that the agreement to abandon the Nicholson River Project constituted a variation of the partnership agreement, alternatively an abandonment of the partnership agreement insofar as it related to the Nicholson River property and business.
69 The Nicholson River Project was the sale and assignments of leaseholds to third parties. Wimpole was contractually bound to undertake the Project, which meant that it was at least required to cooperate with Beloti in the preparation and registration of a plan of subdivision, the establishment of a special purpose entity to become lessee from Wimpole and the sale of leaseholds to third parties. Upon completion of the Project, Simms Corp was required, or had the opportunity to purchase the Management Rights at a price based upon the Net Profit of the operation of the business.
70 Beloti conceded that the subdivision of Nicholson River into leaseholds was not commercially viable, but submitted that the property and business were partnership assets and, if sold prior to completion, should be dealt with as a partnership asset, whatever that meant. Beloti submitted that the fact Wimpole had paid the whole of the purchase price and was liable to repay any borrowings, was of no consequence to Beloti, because Wimpole had agreed to contribute the property and business to the partnership as if a capital contribution.
71 Wimpole filed evidence in support of that new allegation and Beloti responded, although it has not yet filed an amended defence. The issues were well understood at trial and there was no need for Beloti to amend its defence so as to inform Wimpole and the Court that it denied the allegations.
72 Mr Troedel deposed that his company, Hollow Brothers & Burke and Beloti executed an option deed with the vendors of the Nicholson River property and business, Kevin and Nola Freeman, on 15 April 2004. The total purchase price was $1.5 million. On 30 June 2004, Beloti assigned all its rights under the option deed to Wimpole. The deed of assignment that was produced in evidence had been executed on behalf of Beloti by Mr Simitzis. Mr Troedel deposed that on about 30 June 2004 Wimpole entered into contracts to purchase the Nicholson River property and business from the Freeman's. Mr Szmerling's firm, Chadwicks, acted for Wimpole on the purchase.
73 Mr Troedel deposed that since purchasing the Nicholson River property and business, Wimpole had spent more than $500,000 on improvements and equipment. He said that despite the expenditure, the services available at the property were not sufficient to support subdivision into leaseholds. By the end of 2005 he was involved in discussions with Mr Simitzis concerning various alternative proposals in relation to the property. One proposal involved the sale of a house on the land. Another proposal was to sell the land and business, and another involved the sale of the land and business excluding the house. In August 2006, Mr Simitzis prepared a feasibility study for the development of 60 residential units at Nicholson River. At about that time there were discussions between Mr Troedel and Mr Simitzis with a view to terminating the partnership. Mr Troedel said that the development projects were not going as planned and the sales of leaseholds at the other parks were much slower than expected.
74 A meeting took place between Mr Simitzis and Mr Troedel on 29 August 2006 at which various options were considered for the separation of interests. At the meeting Mr Simitzis proposed a joint venture with an outside developer to reconfigure the Nicholson River property for 60 permanent house sites. He proposed that he would buy Wimpole out of Koonwarra, but that the Somers and Blue Gum projects would continue as a joint venture with the existing partners. Mr Troedel advanced a series of options of his own. Some level of agreement was reached at a meeting on 24 October 2006, attended by Mr Simitzis and Mr Troedel amongst others. The minutes record,
Agreed that, based on the calculations as prepared previously by the outside accountant, the figures would be brought up to date, with the intention that PS would buy AT and GD out of Koonwarra and Somers, that AT and GD would buy PS out of Blue Gum, and that Nicholson would be run on as a JV, developing its permanent occupancy, or develop the infrastructure as a retirement village.
A solicitor to be consulted in due course to advise on an agreement to achieve the above, to draw up a new JV in regard to Nicholson, and to enable GD to exit Beloti, with a JV re the Lakes Entrance development, or sale of his interest.
75 Mr Troedel said that by May 2007 nothing had been resolved in terms of separating the respective interests. The minutes of meetings record that buy-out discussions had been frustrated by misunderstandings, but that discussions would continue. The last meeting between the partners occurred on 16 August 2007.
76 Wimpole submitted that once it was accepted by the partners that the development of Nicholson River, in the manner contemplated under the partnership agreement, could not proceed, and there was no longer any obligation on Wimpole to subdivide and sell leases holds. Whether by variation to the partnership agreement or abandonment, the partnership business no longer included the development of Nicholson River as a Project.
77 Mr Simitzis deposed that as early as 2004, when Mr Downing first came to him with a proposal to purchase Nicholson River, Mr Simitzis told him that he did not consider that the Nicholson River property was suitable for development as a project similar to that undertaken at Dromana. Mr Simitzis said that notwithstanding his advice, Wimpole proceeded to purchase the property and business and a lease plan was prepared. Mr Simitzis suggested in his affidavit that the project at Nicholson River did not proceed because Mr Troedel 'refused to sign the original leases for Nicholson'. It is not clear what Mr Simitzis meant and when those events occurred. He went on,
It was some time after that, and in particular some time in 2006, when we again discussed what should happen with the Nicholson River property. I had done a costing of what capital works would be required in order for the Nicholson River property to be profitably developed and formed the view that it was no longer viable to develop Nicholson in the same way as the other holiday parks had been developed.
I then commenced to look at other options for how to develop the Nicholson River property in a manner which would be profitable for the partnership.
78 Mr Simitzis gave evidence of various alternative proposals. That evidence was generally consistent with the evidence given by Mr Troedel and the minutes of meetings. Mr Simitzis was of the view that 'it was at all times envisaged and agreed that Nicholson River would be developed in one way or another by and for the partnership'. He deposed,
I say that the original agreement with respect to the Nicholson River property has never been abandoned but has merely been varied as to the way in which the project was to be carried out.
Whilst the original intention of the partners was to develop Nicholson River in the same way as the other parks, due to circumstances that arose this was not possible. However, instead of simply abandoning the Nicholson River property as a partnership asset... the partners continued to look for ways in which the Nicholson River property could be developed for the benefit of the partnership.
I say that in all the discussions that took place at meetings in relation to the proposed buy out, the Nicholson River property was always included in those discussions as an asset to be included in whatever proposal was being done.
79 Wimpole presented its case for abandonment or variation based on the conduct of the parties recorded in the minutes of meetings in late 2006 and, in particular, the meeting on 24 October 2006. It submitted that as a consequence the Nicholson River Holiday Park was severed from the list of Projects to be undertaken by the partners. Wimpole relied upon DTR Nominees Pty Ltd v Mona Homes Pty Ltd[6] to support the proposition that if both parties to a contract treat their contract, or any part of it, as at an end it must be regarded as discharged even if no contract to discharge it can be spelt out. They relied upon a passage from the joint judgment of Stephen, Mason and Jacobs JJ,
But there can be no doubt that by 5th December 1974, when these proceedings were commenced, neither party, whatever may have been their reasons, regarded the contract as being still on foot. Neither party intended that the contract should be further performed. In these circumstances the parties must be regarded as having so conducted themselves as to abandon or abrogate the contract. The position is similar to that with which Isaacs J. dealt in Summers v. The Commonwealth. The plaintiff did not succeed in his action for damages for breach of contract, but on the other hand the defendant had not rescinded. Time passed during which neither party took any steps to perform the contract. It was held that the parties had so conducted themselves as mutually to abandon or abrogate the contract.
80 Wimpole conceded that the partners were bound by the partnership agreement to develop the properties in the manner contemplated, but that it was not required to develop Nicholson River because the partners had decided to abandon the development on that land. In Summers v Commonwealth[7] Isaacs J said,
Whatever the terms of a contract may be, it is possible for the parties so to conduct themselves as mutually to abandon or abrogate it. A position not altogether dissimilar arose in the case of De Soysa v De Pless Pol.[8] There, neither party had repudiated or refused to perform the contract, nothing in the nature of rescission had occurred, but, said Lord Atkinson for the Privy Council[9] :-"One party to a contract is not bound to give to the other unlimited time after a day named to do that which the other has contracted to do. There must be some point of time at which delay or neglect amounts to refusal. ... In truth, the projects seem to have been to a great extent, if not altogether, abandoned by all the parties concerned." In my opinion, that is the legal position here. Informally, but effectively, the parties have so acted in relation to each other as to abandon or abrogate the contract.
The plaintiff's attitude falls within the proposition laid down by this Court in Cohen & Co v Ockerby & Co,[10] and almost simultaneously by several learned Lords in the case of Morris v Baron &; Co.[11] I quote the following words of Lord Parmoor:[12]
'The question ... arises whether the persistent maintenance of an untenable construction of a contract on a matter of essential substance should be regarded as not consistent with a continuing intention to observe the contractual obligations. I think that the answer should be in the affirmative. If this be so, the respondents could not substantiate their counterclaim for damages.'
The plaintiff's claim for damages, therefore, must fail for two reasons: (1) want of readiness and willingness to perform his contract on the agreed basis; (2) mutual abandonment or abrogation of contract.
81 There is a continuing debate as to whether the concept of abandonment, applied in those cases, is more correctly analysed in terms of a variation, requiring offer and acceptance, supported by fresh consideration.[13] It might be thought that the analysis undertaken in DTR Nominees and Summers was confined to a context in which the court was concerned with a party's right to rescind - the want of readiness and willingness to perform a contractual obligation. But the judgment in Summers would suggest otherwise. The theoretical basis for the proposition seems to involve discharge in the absence a contract, although the kind of abandonment recognised by the High Court is more aligned to the notion of an implied contract based on the conduct of parties demonstrating mutual discharge, and thus the necessary ingredients for a contract of discharge or variation.
82 There is no doubt that by 24 October 2006 the partners had agreed to terminate the partnership and various proposals were being advanced to deal with the partnership property. At that time it was proposed that Mr Simitzis would buy out Mr Downing's interest in Koonwarra and Somers; while Mr Troedel and Mr Downing would buy out Mr Simitzis' interest in Blue Gum; and that Nicholson River would be developed as a joint venture, either for permanent occupancy or as a retirement village with an outside developer. A new joint venture agreement was to be prepared in relation to Nicholson River.
83 I have already found that it was the intention of the parties, expressed in the partnership agreement, that each partner would acquire and pay for its interest in the properties. Financing costs were to be borne by the partners individually, not the partnership. Each property - land and business - was to be held outside the partnership, whose business was confined to the subdivision and sale of leaseholds, with the proceeds of sale divided according to cl 7.1.
84 I am satisfied that by their words and conduct the partners agreed that they would not undertake the Project in relation to Nicholson River. By their agreement not to proceed with the development of Nicholson River, the partners mutually discharged each other from any obligation to undertake the development. Accordingly, the business of the partnership was, by agreement, not to extend to the development of the Nicholson River Project. In that respect it may be said that the Project in relation to Nicholson River was abandoned by agreement. As there cannot be a completed Project at Nicholson River, Simms Corp will not be required or entitled to purchase the Management Rights. Consequently, Wimpole is free to dispose of the Nicholson River land and business without any obligation to account to the partnership, Beloti or Simms Corp for the proceeds of sale.
85 I would answer the questions for determination as follows:
(1) The Nicholson River land and business are not partnership property within the meaning of that expression in the Partnership Act 1958.
(2) The interest of Wimpole as registered proprietor of the Blue Gum property does not constitute partnership property within the meaning of the Partnership Act, including its reversionary interest under each lease.
(3) The business conducted on each of the properties is not partnership property within the meaning of the Partnership Act.
86 Having regard to the findings made in relation to the ownership of the freehold and businesses, the scope of the receivership is confined to the sale of leaseholds at Somers, Koonwarra and Blue Gum and the development entities.
[1] Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451, 462; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165, 179;
[2] Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36; (1973) 129 CLR 99, Gibbs J at 109; Allstate Exploration NL v QBE [2008] VSCA 148 at [7]
[3] Wilkie v Gordian Runoff Ltd, supra; Allstate Exploration NL v QBE, supra.
[4] MLW Technology Pty Ltd v May [2005] VSCA 29 at [76] - [81]; Idya Pty Ltd v Anastasiou [2008] NSWCA 102 at [45]- [49]; Wilkie v Gordian Runoff Ltd & Anor [2005] HCA 17; (2005) 221 CLR 522, 528-9
[5] [2001] VSC 39; 37 ACSR 361 at [94]- [98].
[13] Atlantic Shipping & Trading Ltd v Louis Dreyfus & Co [1922] 2 AC 250, 262-3.
Wimpole Properties Pty Ltd
Beloti Pty Ltd & Ors
(1992) 26 NSWLR 738
(1994) 13 WAR 323
(1992) 112 FLR 119
(2004) 218 CLR 451
(2004) 219 CLR 165
(1973) 129 CLR 99
(2005) 221 CLR 522
(1978) 138 CLR 423
(1918) 25 CLR 144