3. The Application states that the group members to whom the proceeding relates are two corporations, Ripoll Holdings Pty Ltd ("Ripoll") and Rosewick Holdings Pty Ltd ("Rosewick"), the persons described in the Application as "the guarantors" and the persons described as "the unit holders". In Schedule A to the Application, the applicant and 9 other persons or corporations are identified as "the guarantors". One of them, Mr J D Courtney is described as "deceased". I was informed that there is as yet no grant of representation in his estate, although solicitors have been instructed to that end. In Schedule B, 52 unit holdings are identified. Some of them are joint holdings. Some, but not all, of the guarantors appear also as unit holders.

4. The central provision of Part IVA is s. 33C. It states: -

"33C (1) Subject to this Part, where:

(a) 7 or more persons have claims against the same

person; and

(b) the claims of all those persons are in respect of,

or arise out of, the same, similar or related

circumstances; and

(c) the claims of all those persons give rise to a

substantial common issue of law or fact;

a proceeding may be commenced by one or more of those

persons as representing some or all of them.

(a) whether or not the relief sought:

(i) is, or includes, equitable relief; or

(ii) consists of, or includes, damages; or

(iii) includes claims for damages that would

require individual assessment; or

(iv) is the same for each person represented;

and

(b) whether or not the proceeding:

(i) is concerned with separate contracts or

transactions between the respondent in the

proceeding and individual group members; or

(ii) involves separate acts or omissions of the

respondent done or omitted to be done in

relation to individual group members."

5. Section 33G provides that a representative proceeding may not be commenced if the proceeding would be concerned only with claims in respect of which this Court has jurisdiction solely by virtue of the Jurisdiction of Courts (Cross-Vesting) Act 1987 ("the Cross-Vesting Act") or a corresponding law of a State or Territory. The present proceeding is a matter in respect of which this Court is invested with jurisdiction by s. 86 of the Trade Practices Act 1974 ("the TP Act"). It involves alleged contraventions of s. 52 of that statute and claims to relief under ss. 80, 82 and 87 thereof. Claims are also made in the accrued jurisdiction as elements in the controversy comprising that matter. Accordingly, s. 33G does not impose any limitation upon the commencement of the present proceeding.

6. Part IVA assumes the investment by another law of the Parliament of this Court with jurisdiction to entertain the subject matter of the representative proceeding. Part IVA creates new procedures and gives the Court new powers, in relation to the particular exercise of that jurisdiction. The new legislation exemplifies the distinction to be made between the jurisdiction of the Court to hear and determine a matter and the powers and procedures of the Court in relation to the exercise of that jurisdiction; see Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; (1981) 148 CLR 150 at 161-2.

7. Upon the hearing of the motion, counsel for the applicant indicated that he wished to amend paras. 26A and 42A of the Statement of Claim to clarify the allegations concerning the position of the guarantors. When the Court is asked to take the summary steps of staying or dismissing an action it should have regard to the manner in which the claims made could be framed in pursuance of any proper amendment: Co-Ownership Land Development Pty Ltd v Queensland Estates Pty Ltd (1973) 47 ALJR 519 at 521, per Walsh J. I therefore deal with the present application on the footing that the pleading might properly be amended as indicated by senior counsel for the applicant.

8. I turn to the allegations in the Statement of Claim. It is alleged that the applicant and the late Mr Courtney were the directors of Ripoll, which was incorporated in August 1985. By a settlement made 29 August 1985 Ripoll became trustee for unit holders of what is identified as the DYV Unit Trust ("the DYV Trust"). The unit holders in Schedule B to the pleading were, at all material times, unit holders and beneficiaries under the DYV Trust. Ripoll acquired land at Dee Why to construct a retirement village to be named "Dee Why Gardens". The retirement village was to be constructed in stages. Ripoll procured a finance facility in the sum of $7m. from AGC (Advances) Limited ("AGC") to finance the purchase of the land and enable the building of the first stage of the retirement village. The AGC facility was due to expire in January 1987 and in December 1986 the directors of Ripoll decided to seek a new financier rather than to seek the renewal of the AGC facility.

9. It is then alleged that the applicant and Mr Courtney had discussions with the NZI group of companies concerning the provision of a facility to replace the AGC facility. At discussions on 27 January 1987 the applicant and Mr Courtney expressed a concern to the first respondent as to the length of the term of the facility then proposed by the first respondent. A written offer was forthcoming from the first respondent on 17 February 1987. This is described in the Statement of Claim as "the February offer".

10. The February offer was for a facility of $15m. for 4 years with a review at the third year and an option to extend the term for a further 2 years. The indebtedness was to be supported by securities including guarantees by persons who are now included as group members in Schedule A.

11. The applicant alleges that the terms of the February offer were acceptable to Ripoll and the guarantors and that in reliance upon the availability of that offer Ripoll decided not to approach AGC for a renewal of the AGC facility.

12. Between the provision of the February offer and 3 April 1987 there were further negotiations between Ripoll and the first respondent in relation to matters other than the term of the finance facility and the option for extension.

13. Crucial allegations follow in paras. 19-26. They focus upon what transpired upon an attendance by the applicant and Mr Courtney at the Sydney offices of Mallesons Stephen Jaques, solicitors for the NZI companies. They did not have their own legal representation with them on that day. Janine Middleton told Messrs Poignand and Courtney that the finance facility would be granted to Ripoll by the second respondent rather than the first respondent. She handed them a written offer by the second respondent dated 3 April 1987. This provided for a finance facility in terms specifying, inter alia, as the period of the facility 4 years from the original drawdown with a 2 year option following a review at the end of the third year. As was the case with the February offer, the amount of the facility was to be $15m. and the securities to be provided were to include joint and several guarantees by the guarantors. Messrs Poignand and Courtney executed on behalf of Ripoll a Form of Confirmation of Acceptance which was included in the written offer. They handed it back to the representative of the second respondent.

14. However, on the same occasion, these gentlemen executed on behalf of Ripoll other documents tendered to them by Mallesons Stephen Jaques. These included a facility agreement, a first mortgage of the Dee Why land in favour of the second respondent and a fixed and floating charge over the assets of Ripoll, including the assets of the DYV Trust.

15. The allegation is that Mr Poignand and Mr Courtney did not read all the terms of these instruments before executing them on behalf of Ripoll. In particular they did not read, nor was their attention directed to, cl. 5.08 of the facility agreement. This provided for a review on the third anniversary of the first drawdown, but not for the grant to Ripoll of a two year option following that review. Rather cl. 5.08 stated that if the second respondent was prepared to extend the repayment date it would notify Ripoll accordingly and request Ripoll to advise whether it wished the repayment date to be so extended for a further period of 12 months. Otherwise the repayment date would remain unaltered.

16. Messrs Poignand and Courtney did not appreciate, nor was their attention directed to the difference between this provision in the facility agreement and the terms of the written offer, dated 3 April 1987, the Form of Confirmation of Acceptance of which they had completed on behalf of Ripoll.

17. Later, on 22 April 1987 the guarantors executed an instrument whereby they guaranteed to the second respondent the payment by Ripoll of all sums due by it to the second respondent under the finance facility. It is alleged that the guarantors were induced to enter into that instrument by transmission to them of the alleged representations as to the term of the facility upon which Messrs Poignand and Courtney rely.

18. Between April 1987 and December 1990 the second respondent made advances to Ripoll of sums which with capitalised interest amounted to more than $14m. In September 1990 Ripoll indicated to the second respondent that it wished to exercise what it understood to be its option to extend the term of the finance facility. Further, between September 1990 and 12 December 1990 Janine Middleton, on behalf of the second respondent, is alleged, on a number of occasions, to have informed the applicant that there would be no problem about the extension. It is also said that at no material time was Ripoll in breach of any of its obligations to the second respondent which would have entitled the second respondent to refuse an extension of the term of the finance facility. However, on or about 12 December 1990 Janine Middleton, on behalf of the second respondent, informed the applicant that the second respondent refused to extend the term of the finance facility which therefore would expire on 3 April 1991. On that date this refusal was confirmed in writing.

19. Nevertheless, between 3 April 1991 and 16 March 1992 the second respondent did nothing to call up the principal debt under the finance facility or to enforce any of its rights in relation thereto. Indeed, it is alleged, that in or about July 1991 a further sum of $200,000 was advanced to Ripoll pursuant to the terms of the finance facility.

20. However, it appears that demand was made upon the guarantors late in 1991. On 16 March 1992, that is to say eleven days after the commencement of the Amendment Act on 5 March 1992, the second respondent, purporting to act pursuant to the fixed and floating charge over the assets of Ripoll, including the assets of the DYV Trust, appointed the third respondent as receiver and manager of the whole of the charged property. The applicant alleges that Ripoll was not informed by the second respondent of any such intention before the appointment was made. Ripoll retired as trustee of the DYV Trust on 29 March 1992. On the same day the unit holders elected Rosewick as trustee pursuant to the provisions of the trust deed. A proceeding against the guarantors in the Commercial Division of the New South Wales Supreme Court was instituted by the second respondent on 19 March 1992. That proceeding is still pending. It is No. 50095 of 1992.

21. The second respondent took a further step on 1 April 1992. It appointed the third respondent as its agent in possession of the Dee Why land, relying upon the provisions of the mortgage it held over the land.

22. The applicant claims relief under ss. 80, 82 and 87 of the TP Act. Damages are sought for the loss or damage caused by the appointment of the third respondent as receiver and manager and as agent in possession. An injunction is sought against the third respondent acting in those capacities. An order is sought with the effect of varying the term of the finance facility so that it will expire on 3 April 1997, together with consequential orders which would adjust the provisions of the securities and guarantees held by the second respondent.

23. Declaratory relief is sought to the effect that the second respondent is estopped from enforcing the company charge and the mortgage and from seeking to enforce the guarantees. The estoppel claim is brought in the accrued jurisdiction of the Court. It is said to arise from (i) the "basic assumption" of Ripoll, the first and second respondents, and the guarantors, that the finance facility was to have a term of 4 years, with Ripoll having an option to extend that term for a further 2 years, and from (ii) representations by the first and second respondents to Ripoll and the guarantors that this would be the term of the finance facility. It is alleged that Ripoll acted to its detriment by not seeking alternative finance until in or about February 1991, and that it is now virtually impossible for Rosewick, the new trustee, to find alternative finance whilst the third respondent is installed as receiver and manager and agent in possession. The assets of the DYV Trust are said to have been diminished in value by reason of those appointments and their continuation.

24. What are said to be questions of law or fact common to the claims of the group members are set out in para. 5 of the Application: see s. 33H of the Federal Court Act.

25. Sub-s. 86(2) of the TP Act invests, inter alia, the Supreme Court of New South Wales with federal jurisdiction with respect to "matters" such as the present. Further, this Court is given by sub-s. 86A(1) power to transfer certain matters to a State court. The Federal Court "may, subject to sub-section (2)", make such an order upon the application of a party or of this Court's own motion. That is one of the orders sought, in the alternative, in the present Notice of Motion. However, sub-s. 86A(2) imposes restrictions upon the power of the Court and provides: -

"The Federal Court shall not transfer a matter to another court

under sub-section (1) unless the other court has power to grant

the remedies sought before the Federal Court in the matter and it

appears to the Federal Court that -

(a) the matter arises out of or is related to a proceeding

that is pending in the other court; or

(b) it is otherwise in the interests of justice that the

matter be determined by the other court."

26. I have already mentioned pendency of the proceeding in the Commercial Law Division of the Supreme Court of New South Wales. Clearly the present matter in this Court is related to that proceeding. Thus para. (a) of sub-s. 86A(2) is satisfied. However, this Court is enjoined by sub-s. 86A(2) not to transfer the matter unless the Supreme Court would have the power to grant the remedies sought in this Court.

27. There is a real question whether any of the State courts has power to grant remedies of the kind available under the representative proceedings provisions of Part IVA of the Federal Court Act. The point, as regards the Supreme Court of New South Wales, was averted to by the Chief Judge of the Commercial Division in a judgment delivered on 16 July 1992 upon an application, inter alia, for an order that Proceeding No. 50095 of 1992 be transferred to this Court.

28. Section 4 of the Cross-Vesting Act invests, inter alia, the State Supreme Courts with federal jurisdiction with respect to matters, jurisdiction in respect of which is conferred on this Court and is not, apart from s. 4, conferred upon the Supreme Courts. There is an investment of jurisdiction only if the Supreme Court "would not, apart from this section, have jurisdiction with respect to that matter..." As I have indicated, there is an investment of the Supreme Courts (and other state courts) with jurisdiction by s. 86 of the TP Act. Hence s. 4 does not operate to invest federal jurisdiction in the Supreme Courts with respect to the matter.

29. It would be open to the Parliament when investing State courts with jurisdiction under a provision such as s. 86 to prescribe the practice and procedure to be followed by the State court in the exercise of the invested jurisdiction: Pollack v Commissioner of Taxation (1991) 32 FCR 40 at 59. But the terms of the relevant provisions of the TP Act and the Federal Court Act are such that it is plain that this has not been done with representative proceedings. Accordingly, were it necessary to do so, I would hold that this Court was forbidden by the opening words of sub-s. 86A(2), which I have set out above, from transferring the present matter to the Supreme Court of New South Wales.

30. However, it is sufficient to rest my conclusion, as a matter of discretion, upon the basis that it would not appear to be in the interests of justice that the matter be determined by the other court. It cannot be in the interest of justice to make an order for such a transfer where there is a real question as to availability in the other court of the special procedures instituted by what the Chief Judge described in his judgment as the "innovative" provisions of Part IVA of the Federal Court Act.

31. But is was then said that in this Court the proceeding should be stayed or dismissed.

32. Three objections were put forward to the competency of the proceeding as presently constituted in this Court.

33. It was suggested that some group members might "opt out". There is some debate at the bar table, but no evidence, as to the likelihood of this in fact occurring. However that may be, the position of such group members is protected by s. 33J of the Federal Court Act. This states: -

"33J.(1) The Court must fix a date before which a group member may

opt out of a representative proceeding.

(2) A group member may opt out of the representative proceeding by

written notice given under the Rules of Court before the date so

fixed.

(3) The Court, on the application of a group member, the

representative party or the respondent in the proceeding, may fix

another date so as to extend the period during which a group

member may opt out of the representative proceeding.

(4) Except with the leave of the Court, the hearing of a

representative proceeding must not commence earlier than the date

before which a group member may opt out of the proceeding."

The opt out notice may be in accordance with Form 131: O. 73 r. 6.

34. The directions which I will give will include the fixing of a date under sub-s. 33J(1).

35. The second objection concerns the application of s. 33B of the Federal Court Act. It is submitted by the respondents that the present proceeding may not be brought under Part IVA because it is in respect of a cause or causes of action which arose before the commencement date of 5 March 1992. Related issues arise in the application of the proposition that an action for recovery of loss or damage under s. 82 and an application under sub-s. 87(1A) of the TP Act may be commenced at any time within three years "after the date on which the cause of action accrued". The most recent Full Court authorities are Western Australia v Wardley Australia Limited [1991] FCA 314; (1991) 30 FCR 245 and Magman International Pty Ltd v Westpac Banking Corporation [1991] FCA 41; (1991) 32 FCR 1.

36. As the second of those decisions emphasises, in many instances the question of whether claims are barred by these provisions can only be resolved after the hearing of evidence and it may not be possible to extract any general principle which governs all such matters. The authorities also indicate the need for caution against both making prematurely declarations on issues separately stated for decision and acting on strike out applications. After a review of the authorities, similar points were made by Matthews J in Crisp v Blake (1992) Aust Torts Reports 81-158, an unsuccessful strike out application in a negligent advice case.

37. The respondents point to the weight given in the Statement of Claim to the events of 3 April 1987 and subsequent execution of the guarantee instrument on 22 April 1987. In response the applicant refers to various matters, including the alleged failure (pleaded in para. 36 of the Statement of Claim) of the second respondent before 16 March 1992 to call up the principal debt or to enforce the securities, and the further advance allegedly made to Ripoll in July 1991. The relief sought is directed immediately to the appointments of the third respondent as receiver and manager of the charged property and as agent of the second respondent in possession of the Dee Why land. Those appointments were made respectively on 16 March and 1 April 1992, that is to say, after the commencement of Part IVA.

38. In all the circumstances, I cannot find that on their present motion the respondents have clearly demonstrated, within the meaning of the General Steel principles, that the present proceeding is brought otherwise than in respect of a cause of action arising after 5 March 1992.

39. Counsel for the respondents said that he placed most reliance upon a third point. This involves consideration of the true position of those group members who are the unit holders, both at general law and as persons alleged to have the necessary standing to invoke ss. 80 and 82 of the TP Act and particularly sub-s. 87(1A). It was submitted that the relevant standing, to the exclusion of the unit holders, was possessed by the trustee. In that regard, no distinction was sought to be drawn between the former trustee, Ripoll, or the trustee since 29 March 1992, Rosewick.

40. As a matter of the application of general principles of trust law, not only the assets of the DYV Trust but also the unit holders are at hazard by reason of the existence of the covenants given by Ripoll and the legal and equitable securities created by it over the trust assets and in favour of the second respondent. In particular, as the position is disclosed on the pleading, by the application of the principles discussed by McGarvie J in J W Broomhead (Vic) Pty Ltd (In Liq) v J W Broomhead Pty Ltd [1985] VicRp 88; (1985) VR 891 each unit holder is at risk of enforcement of a personal obligation to provide an indemnity for the liabilities incurred by the trustee.

41. In Broomhead a company which was trustee of a unit trust went into liquidation. Whilst conducting a building business for the unit holders it had properly incurred liabilities. The liquidator was unable to obtain a complete indemnity out of trust assets. Therefore he sought a personal indemnity from the unit holders. It was held that this right of personal indemnity extended beyond the well-established case where there is only one beneficiary and that beneficiary is sui juris and absolutely entitled. McGarvie J decided (at 936) that the right of personal indemnity extends to a case "where there is more than one beneficiary and all of them are sui juris and entitled to the same interest as absolute owners between them." A reference to "the same interest as absolute owners" should be read as meaning only that the interest must a vested absolute interest and not as requiring that each unit holder have the same number of units.

42. There is a controversy, not necessary to determine for the purposes of the present application, as to whether his Honour was correct in insisting that all of the beneficiaries should be sui juris before a personal right of indemnity can exist against any of them. It has been suggested by some commentators that the right of indemnity may be exercised against those beneficiaries who do answer this description, even though there are others who do not. See Ford and Hardingham "Trading Trusts: Rights and Liabilities of Beneficiaries" in Finn, ed., "Equity and Commercial Relationships" 1987, pp 80-82; cf Scott "The Law of Trusts" Fourth Ed, 1988, para. 249.

43. Further it also appears from Broomhead (937) that a beneficiary with less than an absolute interest may be liable to the trustee if that beneficiary has requested the trustee to assume office or to incur what otherwise would be an unauthorized liability. There is no suggestion that the raising of finance by the trustee to construct "Dee Why Gardens" was an activity unauthorized by the terms of the trust.

44. Sub-s. 87(1A) authorises applications of persons who have suffered or are "likely to suffer" loss or damage by conduct of another person that was engaged in in contravention of the relevant provisions of the TP Act. The phrase "likely to" is susceptible of various meanings, and takes its colour from the statutory context. It may indicate a degree of contingency falling short of probability. This and other shades of meaning are discussed in Boughey v The Queen [1986] HCA 29; (1986) 161 CLR 10, in the context of sub-s. 157(1) of the Criminal Code (Tas).

45. One evident purpose of the inclusion of the phrase "likely to suffer loss or damage" in sub-s. 87(1A) is to afford the opportunity to an applicant to move quia timet by analogy to the obtaining of injunctive relief against the commission of apprehended wrongs. Sub-s. 87(1A) is expressed as being without limit to the generality of s. 80. The power of the Court to grant prohibitory or mandatory injunctions may be exercised whether or not there is an imminent danger of substantial damage to any person; see sub-s. 80(4),(5).

46. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 at 346-8, in a passage referred to in Boughey supra at 20, Deane J discussed the sense to be given to "likely" in s. 45D of the TP Act. His Honour held that it would suffice for the purposes of that provision if the conduct in question was such that, in the circumstances, there was a real chance or possibility that if pursued it would cause loss or damage.

47. As matters stand on the present motion, I accept the submission by the applicant that there is a real chance or possibility that the unit holders are likely to suffer loss or damage by the conduct complained of against the respondents. It may be that some lesser degree of contingency will suffice for sub-s. 87(1A) and for s. 45D. But that is a question for another day. In any event, upon the allegations pleaded, the appointments of the third respondent have diminished the assets of the DYV Trust and thus the value of the units held by the unit holders. That is loss or damage already sustained by them.

48. The consequences of conduct by the one actor which contravenes a relevant provision of the TP Act may be such that a plurality of persons each has standing to obtain relief in respect of the interests of that individual; see, generally, Tobacco Institute of Australia Ltd v Australian Federation of Consumer Organisations Inc (1988) 19 FCR 469 at 473-475. There must, of course, always be the necessary controversy giving rise to a "matter" in the constitutional sense: Australian Conservation Foundation v The Commonwealth (1980) 146 CLR 493 at 550-551 Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 66 ALJR 271 at 278.

49. In the present case it is the alleged subtraction from the value of their units and the apprehended operation of the principles of the law of trusts as discussed in Broomhead, which enables the unit holders to complain that they have suffered and are likely to suffer loss or damage by the conduct of the respondents of which complaint is made. No doubt, the proper plaintiff to redress damage by a third party to the trust assets is usually the trustee, not the beneficiaries. Counsel for the respondents sought to rely upon the existence of those principles of equity as providing some complete statement of the legal position of the unit holders vis-a-vis the trustee.

50. But to state the general law is not to gainsay the operation of sub-s. 87(1A) and ss. 80 and 82 upon the situation thus disclosed. The result of the operation of the statute law is to confer standing upon the unit holders to act now against the respondents for contravention of the TP Act and to seek various remedies. It is then not an answer to point to the position of the trustee as the party with whom the respondents dealt immediately, and at least as regards the second respondent, in contravention of s. 52 of the TP Act. (Nor, in equity, is the proper plaintiff against the wrong-doer always the trustee, to the exclusion of the beneficiaries. The position is fully discussed by Powell J in Ramage v Waclaw (1988) 12 NSWLR 84.)

51. It follows that the motion for an order permanently staying or dismissing the proceeding fails. The respondents should pay the costs of the applicant of this motion, being the motion of the respondents.

52. It is necessary to give directions for the further conduct of the proceeding.

(1) any amended statement of claim should be filed and served on

or before 4 August 1992,

(2) the date before which a group member, not being a deceased

group member in respect of whose estate a grant of representation

has not by then been made, may opt out of the representative

proceeding is fixed, pursuant to s. 33J of the Federal Court Act,

as 21 August 1992,

(3) the solicitors for the applicant send, on or before 7 August

1992, a copy of the Reasons for Judgment delivered today to each

group member, being a unit holder or guarantor, addressed to the

group member at the last address known to the applicant,

(4) the affidavits filed in proceeding No. 50095 of 1992 in the

Supreme Court of New South Wales, Commercial Division, stand as

affidavits filed in this Court,

(5) the applicant file and serve any further affidavits on which

he intends to rely on or before 7 August 1992,

(6) the respondents file their defence and any further affidavits

on which they intend to rely on or before 21 August 1992,

(7) the applicant file and serve any affidavits in reply on or

before 28 August 1992,

(8) the informal discovery and inspection already had in the said

Supreme Court of New South Wales proceeding stand as discovery and

inspection in this proceeding,

(9) stand the proceeding over for further directions to 11

September 1992 at 9.30am before me, and

(10) liberty to apply on three days written notice.