SAMPEY -v- DOHERTY [2024] WASCA 105 (4 September 2024)

(a) Mr Phillip Doherty (who acted as the trustee for the PD Trust);

(b) Mr Gregory Norris, who typically entered into the transactions through his corporate vehicle, Angourie Investments Pty Ltd (Angourie Investments);

(c) Mr Bruce Sampey (who separately owned and operated the accounting firm known as Sampey & Co, and was also trustee for The Mustang Unit Trust and the Sampey Superannuation Fund);

(d) Mr Stephen Wake (who acted as trustee for The Mustang Unit Trust with Mr Sampey, and acted as trustee for the Wake Superannuation Fund);

(e) Fanfare Pty Ltd (Fanfare), the corporate vehicle which operated the second hand car dealership and leased the premises from which the business was operated; and

(f) the respective wives of Mr Doherty, Mr Sampey and Mr Wake, and their related trusts.[5]

1. Three of the commercial properties were located in close proximity to each other, on Albany Highway in East Victoria Park, being 707‑709 Albany Highway, 716 Albany Highway and 720 Albany Highway. The fourth property, in which the partnership was found to have acquired a 50% interest, was located further away, at 67 Willows Road in Brookdale. We will refer to this as the Brookdale Property.
2. The car dealership in question was known as the 'Park Auto Centre'. It was operated from the property at 707‑709 Albany Highway, through Fanfare, which leased those premises from the partnership.[6]
3. In broad terms, Mr Doherty, Mr Norris and Mrs Doherty (together with Angourie Investments and Fanfare), were the plaintiffs at first instance, and are the respondents to this appeal. Mr Sampey and Mr Wake (together with Mrs Sampey and Mrs Wake) were the defendants at first instance, and are the appellants to the present appeal.
4. In essence, the Primary Judge found in favour of the respondents at first instance in relation to the claims advanced by them concerning the partnership matters. The Primary Judge concluded that a partnership had been established by Mr Doherty, Angourie Investments, Mr Sampey and Mr Wake, each in various capacities. The partnership was styled as MDN Partners, which the Primary Judge referred to as the MDN Partnership.[7]
5. There was no dispute at trial, to the extent the MDN Partnership was found to have been established, that the properties at 707‑709 Albany Highway and at 720 Albany Highway were acquired by the partnership.[8]
6. Whether the property at 716 Albany Highway and a 50% interest in the Brookdale Property were assets of the partnership was, however, disputed. The Primary Judge accepted the contention of Mr Doherty and Mr Norris that the interest in the Brookdale Property had been acquired by the partnership, and that the property at 716 Albany Highway had been an opportunity for the partnership, but had been acquired by Mr Sampey and Mr Wake in breach of their fiduciary duties. Further, the Primary Judge rejected the laches defence raised by Mr Sampey and Mr Wake in relation to the claim concerning the property at 716 Albany Highway. These matters are the subject of grounds of appeal 1, 2 and 3.
7. The Primary Judge also found in favour of Mr Doherty and Mr Norris in relation to claims of unconscionable conduct under the Australian Consumer Law,[9] which were brought against Mr Sampey and Mr Wake (and their respective wives). These claims were connected with loan instruments entered into by these parties in December 2011, contracts for sale, the registration of certain land transfers, and the execution of a further lease in January 2012. These matters, so far as the loan instruments are concerned, are the subject of grounds of appeal 4 and 5.
8. The Primary Judge rejected additional claims brought at trial against Mr Sampey, which alleged breaches of duty on his part including in his capacity as the proprietor of Sampey & Co. That firm was said to have acted as an adviser to the respondents. These claims are not the subject of any appeal or cross-appeal and so need not be dealt with in these reasons in any substantive fashion.
9. The appellants appeal against the decision of the Primary Judge in Doherty v Bruce Ronald Sampey as administrator of the estate of Patricia Adele Addison (aka Sampey)[10] (Primary Reasons). For the reasons that follow, we would dismiss grounds of appeal 1, 2, 4 and 5 and allow ground of appeal 3. However, in respect of the third ground, which concerns the laches defence, we would ultimately reach the same conclusion as the Primary Judge, namely that the defence should be rejected.

1. We will commence these reasons with an overview of the non‑contentious factual matters by way of background. These factual matters are drawn from the Primary Reasons. To the extent to which there are contentious factual matters raised by the grounds of appeal, we will address those in the course of dealing with the individual grounds.

1. The factual chronology which underlies the dispute between the parties commenced in 2003. By that time, Mr Doherty and Mr Norris had considerable experience in the business of selling motor vehicles. Mr Doherty had been a dealer principal at City Toyota and Mr Norris had worked for him. Mr Wake had also worked in the industry as a car wholesaler.[11]
2. Mr Doherty, Mr Norris and Mr Wake had all met by or during 2003.[12]
3. Mr Doherty and Mr Norris met Mr Sampey for the first time in around March or April 2003.[13] At the time, and thereafter, Mr Sampey operated an accounting business known as Sampey & Co.[14]
4. Sampey & Co acted as the accountants for Fanfare from the outset, without a written retainer. Sampey & Co prepared the company tax returns and business activity statements for the company, and prepared partnership tax returns and financial statements for MDN Partners. A range of other services were provided to Fanfare by Sampey & Co, including rent collection.[15]
5. Sampey & Co also acted as the tax accountants for Mr Doherty, Mr Norris and for Angourie Investments.[16]
6. Not long after meeting Mr Doherty, Mr Sampey indicated he would like to go into business with him.[17] The recollections at trial of Mr Doherty and Mr Norris on the one hand, and Mr Sampey and Mr Wake on the other, as to how the group would go into business and on what terms, differed somewhat. The Primary Judge made findings of fact in this regard at [168] ‑ [187] of the Primary Reasons.
7. The Primary Judge accepted that a partnership had been established by the parties by about December 2003,[18] although no written partnership agreement was ever prepared by the parties.[19] The business of the partnership was found to be, in essence, property investment, although the Primary Judge found it may have commenced as a single venture business, confined to the purchase of the property at 707‑709 Albany Highway and the operation of the second hand car dealership from that location.[20]
8. We will briefly summarise the background to the acquisition of the four commercial properties in the order in which they were acquired. The acquisition dates were as follows:

(a) 707‑709 Albany Highway was acquired in November 2003;

(b) 716 Albany Highway was acquired in March 2004;

(c) the Brookdale Property was acquired in June 2004; and

(d) 720 Albany Highway was the last of the properties acquired, in July 2006.

1. In late May 2003, Mr Doherty, Mr Sampey and Mr Wake agreed to purchase the property at 707‑709 Albany Highway. The first offer they made did not include Mr Norris.
2. The Primary Judge found that Mr Doherty and Mr Norris did not enter the business on Mr Sampey's recommendation. Rather, Mr Doherty was invited to join in the purchase of the property, and Mr Norris entered the arrangement after being approached by Mr Doherty. Mr Sampey played no part in Mr Doherty recruiting Mr Norris.[21]
3. Soon after the initial agreement, within a month, the agreement broadened to include the owners running a car yard on the premises, and Mr Norris was included as one of the prospective acquirers. Mr Doherty wanted Mr Norris to be the manager of the putative business.
4. A second offer to purchase was thus made in June 2003, with Mr Wake or his nominee as purchaser. The offer was accepted on 23 June 2003. By this time, Mr Sampey had not had any direct dealings with Mr Norris.
5. The ultimate purchasers of the property were Mr Sampey and Mr Wake as trustees for The Mustang Unit Trust, Mr Doherty as trustee for the PD Trust, and Angourie Investments as trustee for the Angourie Unit Trust. The property was held by the purchasers as tenants in common, with Mr Sampey and Mr Wake holding 50% and Mr Doherty and Angourie Investments each holding 25%.[22] The property was held by them as part of the property of the MDN Partnership, which was registered as a partnership in September 2003.
6. The purchase price for the property was $1.01m. It was financed by contributions from each of Mr Doherty, Mr Norris, Mr Sampey and Mr Wake, together with finance from St George Bank.[23] Several instruments were entered into with St George Bank in the last few months of 2003, for the purposes of establishing and financing the business. These were a facility agreement with a 10 year period and a facility limit of $700,000, a motor vehicle finance facilities agreement, a dealer agreement, a bailment agreement, together with guarantee and indemnity agreements.
7. Fanfare was Mr Sampey's corporate vehicle. Mr Sampey suggested using Fanfare to operate the car dealership business from the premises at 707‑709 Albany Highway.[24] The other parties agreed to this approach. Initially, the four men held positions as directors of Fanfare and all held shares in Fanfare. The primary role played by Fanfare in these proceedings was thus as the lessee of this property.
8. The initial lease was executed on behalf of MDN Partners (as lessor) and Fanfare (as lessee). The lease commenced on 1 December 2003, with Fanfare trading as the Park Auto Centre. The lease was for 3 years with a monthly rental of $10,000.[25]
9. A further lease for 3 years was entered into on 1 December 2006, with a monthly rental of $13,000. The further lease was collectively signed by Mr Doherty, Mr Norris and Mr Sampey as the lessor.[26] Further leases were entered after the expiration of this lease, through until mid‑2012 when Fanfare ceased to trade.
10. We pause here to note that, on 30 June 2004, and so relatively early in the business relationship of these persons, Mr Sampey and Mr Wake disposed of 3,000 of their shares in Fanfare to both Angourie Investments and to Mr Doherty. Then, in September 2004, Mr Sampey and Mr Wake ceased to be directors of Fanfare.[27] So, from June 2004 onwards, Fanfare was owned by both Mr Doherty and Angourie Investments, with Mr Doherty and Mr Norris being the only directors of the entity.[28]

1. In March 2004, Mr Sampey and Mr Wake contracted to purchase the property at 716 Albany Highway as an investment, for the sum of $650,000.[29]
2. The Primary Judge found that Mr Norris had informed Mr Sampey that both 716 and 720 Albany Highway had been advertised for sale. Mr Norris had seen the properties advertised in the daily newspaper. Neither Mr Sampey nor Mr Wake informed Mr Doherty or Mr Norris of their intention to purchase the property at 716 Albany Highway, and neither of them sought consent to do so.[30]
3. The Primary Judge found this acquisition represented an opportunity for the MDN Partnership,[31] and was acquired in breach of the fiduciary duties owed by Mr Sampey and Mr Wake to the partners of the MDN Partnership. The Primary Judge also rejected the defence of laches which had been raised by the appellants.[32]

1. In June 2004, Mr Sampey, Mr Wake, Mr Doherty and Mr Norris signed an agreement to purchase a 50% share of a property at 67 Willows Road, Brookdale. That agreement identified Mr Norris (not Angourie Investments), Mr Doherty and The Mustang Unit Trust as the purchaser. The purchase price was $800,000.[33]
2. In February 2007, both Mr Doherty and Mr Norris sold their 25% interests in the property to Mr Sampey and Mr Wake as trustees for The Mustang Unit Trust.
3. The description of the parties to the original agreement and the sale agreement, as well as the treatment of the interest in the Brookdale Property in the financial statements and accounts of the MDN Partnership, were all the subject of evidence at trial.
4. His Honour ultimately found that the MDN Partnership acquired an interest in that property.[34] The Primary Judge found that the partnership held a 50% interest in the property.
5. Whether the interest in the Brookdale Property was held by the MDN Partnership, or by some other partnership, is the subject of ground of appeal 2.

1. In July 2006, Mr Sampey, Mr Wake, Mr Doherty and Angourie Investments entered into a contract to purchase 720 Albany Highway for $1,025,000. The purchase was funded entirely by an increase in the loan facility with St George Bank. At that stage, the amount owed to the bank was $1,812,000.[35]
2. The property at 720 Albany Highway was held by the MDN Partnership in the same proportions as the property at 707‑709 Albany Highway.
3. When the property at 720 Albany Highway was acquired, it was subject to an existing lease to a third party, which Sampey & Co would thereafter manage on behalf of the MDN Partnership. The existing lease ran until 2012.

1. As observed by the Primary Judge, the car dealership had a few modestly successful years, but then began to lose money. Fanfare continued to trade until mid‑2012, but suffered losses over this period.[36] The Primary Judge attributed the failure of the business to a lack of business acumen and the state of the used car market at the time.[37]
2. The subdued market at the time for the sale and development of commercial land, coming around the time of the Global Financial Crisis, was also regarded by the Primary Judge as a factor which impacted the parties' ability to profit from the land acquisition business.[38]
3. It appears from the Primary Reasons that, in 2012, the relationship between Mr Doherty, Mr Norris and Mr Sampey broke down. It became necessary for Mr Doherty and Mr Norris to sell their homes to repay debts incurred in the business.
4. Mr Doherty and Mr Norris also lost their interest in two properties they had bought with Mr Sampey and Mr Wake, being the properties at 707‑709 Albany Highway and 720 Albany Highway. These properties were transferred to Mr Sampey and Mr Wake.[39] The events surrounding these matters occurred in 2011 and 2012. We will summarise the factual background later in these reasons. Presently, it is sufficient to note that these matters occurred in the context of the Deeds of Loan by which the interests of Mr Sampey and Mr Wake advanced funds to Mr Doherty and Mr Norris on certain terms.[40] In connection with those advances, Mr Doherty and Mr Norris had signed transfers and sale agreements in respect of the properties at 707‑709 Albany Highway and 720 Albany Highway.[41]

1. As already noted, the Primary Judge made a number of adverse credibility and reliability findings in relation to the evidence of the witnesses who testified at trial, most particularly Mr Doherty, Mr Norris, Mr Sampey and Mr Wake.
2. The adverse assessments of the witnesses formed by the Primary Judge were not confined to one camp of witnesses. His Honour's assessments were evenly spread.
3. At a general level, the Primary Judge found there was 'palpable hostility' between Mr Norris, Mr Doherty (as well as a Mr Roger Hughes) and Mr Sampey. His Honour described there being a 'continuing level of animosity between the plaintiffs and Mr Sampey' which influenced the way in which Mr Doherty in particular gave his evidence.[42]
4. Both Mr Doherty and Mr Norris attributed the failure of the business endeavour to their reliance on Mr Sampey. Indeed, his Honour noted that Mr Norris 'blamed Sampey for everything'. This uncritical attribution of responsibility affected the reliability of Mr Norris' evidence, according to the Primary Judge.[43]
5. Further, the Primary Judge did not find Mr Doherty to be a reliable witness, with his evidence veering between combative and evasive. His Honour describing him as 'not convincing'.[44]
6. Perhaps not surprisingly according to the Primary Judge, as the witnesses were testifying at trial in 2021 about matters which occurred between 2003 and 2012, he found that their recollections were limited and at times selective.[45]
7. As to the Primary Judge's overall assessment of the role played by the key witnesses, the following matters should be noted:

(a) The Primary Judge considered that Mr Norris' recollection when giving evidence was not good, despite being frequently prompted by being taken to contemporaneous documents. Even when taken to documents, he was disinclined to read them. Mr Norris also asserted that he was 'useless with paperwork'. Nonetheless, Mr Norris accepted that he knew whether the business was making a profit, that he and Mr Doherty made business decisions jointly about the stock they needed, and they both received monthly reports prepared on the operation of the business. In respect of certain important decisions, Mr Norris took his lead from Mr Doherty. Finally, the Primary Judge found that, following the failure of the Fanfare premises to sell at auction in 2011, Mr Norris was hindered by anxiety attacks and deteriorating mental health, coupled with a long term back injury.[46]

(b) The Primary Judge observed that Mr Doherty professed a surprising lack of business knowledge for someone who had, for several years, occupied a senior position with a major car franchise. The Primary Judge found that Mr Doherty attributed poor decisions to his reliance on Mr Sampey's advice, yet his Honour found that no advice or conduct on the part of Mr Sampey was identified that could cause a modestly successful business in 2007 to record substantial losses in 2008 to 2011. His Honour found that Mr Doherty played a more active role in Fanfare than he presented.[47]

(c) The Primary Judge was surprised at Mr Sampey's ability to recall certain matters which occurred so long ago,[48] and noted certain important matters going to Mr Sampey's credibility.[49] The Primary Judge disbelieved Mr Sampey's evidence in certain respects, most particularly in relation to matters concerning the Deeds of Loan entered into in December 2011 and the meetings which occurred in July 2012.[50]

(d) The Primary Judge found that Mr Wake had been an associate of Mr Sampey's for many years. Mr Wake was a party to some of the business arrangements, but the Primary Judge found that he lacked any detailed knowledge of what had happened. He relied on Mr Sampey to organise matters, even where he was committing substantial sums of money or where The Mustang Unit Trust was involved. In an overall sense, the Primary Judge concluded that Mr Wake's conduct was largely controlled by Mr Sampey and his Honour did not form the view that he actively participated with knowledge of what was going on, but rather that he did what he was told. Ultimately, according to the Primary Judge, Mr Wake's view of what had occurred appeared to reflect what Mr Sampey said, because that was what he had been told by Mr Sampey (the Primary Judge inferred).[51]

The partnership claims ‑ the cases presented at trial

1. In the proceedings below, the respondents pleaded that Mr Doherty as the trustee of the PD Trust (the PD Trustee) and Mr Norris (through Angourie Investments) entered into a partnership with both Mr Sampey and Mr Wake as trustees of The Mustang Unit Trust.[52] The partnership was pleaded as being under the style 'MDN Partners'. The existence of that partnership was denied by Mr Sampey and Mr Wake.
2. At trial, the respondents' case was that, in the absence of any written partnership agreement, a partnership could be found on the basis of the joint intention of the parties by reference to the whole course of their dealings with each other.[53] That is an uncontroversial proposition.
3. In their opening submissions at trial, the respondents identified the various factors which were relevant to determining the existence of a partnership and its scope, highlighting the contemporaneous documents which provided support for the conclusion there was a partnership in existence and as to the scope of the partnership.[54]
4. The appellants pleaded a relatively detailed factual response to the respondents' allegation that a partnership had been established, and expressly denied the existence of any partnership arising from the business arrangement between the parties.[55]
5. The appellants did not plead a case at trial that, if there was a partnership, it was limited to 'property investment' confined to the holding of the properties at 707‑709 Albany Highway and 720 Albany Highway, from the dates of their purchase, as is now contended.[56] The relevant pleading is as follows:

[12.8] on 4 September 2003, Sampey on behalf of the third defendants, the PD Trustee and Angourie adopted the trading name MDN Partners when obtaining registration on their behalf for an Australian Business Number, with the intention that they together account for both tax and accounting purposes in relation to their co-ownership of the Premises, but the defendants deny that the third defendants, the PD Trustee and Angourie thereby, or at any time, entered into partnership;[57]

1. Counsel for the appellants at trial (not being counsel on the appeal) made brief submissions in closing before the Primary Judge to the effect that the acquisitions of the various properties were for different purposes. Counsel rejected the contention that the nature of the relationship between the parties to the alleged partnership was such that 'if ever a property of any kind was to come the way of one of the four individuals then that necessarily fell within the purview of what they agreed would be the purposes of the acquisition'.[58] Counsel did not directly address the contention as to whether the scope of the partnership included the acquisition of property or its leasing.
2. The appellants denied at trial they owed any duty to seek consent from the PD Trustee or from Angourie Investments for the purchase of 716 Albany Highway, or to advise them of their intention to purchase.[59] The appellants then pleaded a general denial to the allegation of breach of duty.[60]
3. Mr Doherty and Angourie Investments alleged at first instance that the property at 716 Albany Highway represented an opportunity for the partnership, but was instead acquired by Mr Sampey and Mr Wake in their own capacities without notice to the others.
4. The respondents pleaded that Mr Norris had advised Mr Sampey and Mr Wake in early 2004 that the property at 716 Albany Highway was available for purchase and 'suggested that the MDN Partnership purchase both properties'.[61] The respondents pleaded that Mr Sampey and Mr Wake as trustees for The Mustang Unit Trust breached their fiduciary duties by purchasing the property without the consent of the PD Trustee or Angourie Investments.[62] Relief was sought for an account, equitable compensation and associated remedies.
5. As to the circumstances in which Mr Sampey and Mr Wake came to know of the opportunity to acquire the property at 716 Albany Highway, the appellants admitted that Mr Norris had told them that the property at 716 Albany Highway was available for purchase.[63] There was no evidence led at trial as to whether Mr Sampey or Mr Wake came to know of the opportunity through any other source.[64] Nor were Mr Doherty or Mr Norris cross‑examined on the issue. Given the admission on the pleadings, the course of the evidence in this regard is perhaps not surprising.
6. Those parties further alleged that a 50% interest in the Brookdale Property was owned by the MDN Partnership, although no specific relief was sought in the proceedings in respect of the Brookdale Property. Senior counsel for the respondents observed at the hearing of the appeal that his clients had relied upon the investment in the Brookdale Property to further demonstrate that 'by early 2004 the partnership business did include consideration of other opportunities to acquire other properties'.[65]
7. On the cases presented by the parties at trial, the Primary Judge was thus required to consider whether the partnership had been established, the scope of the partnership, and whether the acquisition of certain of the properties was within the scope of that partnership. We turn now to the findings made by his Honour.

1. The Primary Judge's analysis as to whether there was a partnership and its scope is primarily found at [134] to [146] of the Primary Reasons.[66]
2. The necessary analysis to be undertaken, and which the Primary Judge did in fact undertake, was to first examine the objective intention of the parties to assess whether a partnership existed. That analysis begins with ss 7 and 8 of the Partnership Act 1895 (WA) (Partnership Act) which define the concept of 'partnership' and the rules to apply to determine whether a partnership exists. His Honour expressly identified these provisions in his reasons.[67]
3. The Primary Judge found that Mr Doherty, Mr Norris (through Angourie Investments), Mr Sampey and Mr Wake carried on business as the MDN Partnership.[68] That conclusion is not challenged on appeal (although, as noted, the appellants had denied the existence of any partnership at first instance). In essence, the Primary Judge found that the partnership operated from 2003 until its dissolution on 7 August 2015.[69]
4. As his Honour correctly observed, whether a partnership exists is a question of fact which is dependent upon the joint intention of the parties.[70] That intention is not to be determined by an examination of the private intention of the parties, but by inference from their conduct and actions throughout the whole course of their dealings with one another.[71]
5. The mere fact of joint ownership of property by the parties did not establish the existence of a partnership in the present circumstances, given the terms of s 8(1) of the Partnership Act, as his Honour noted.[72] There were numerous other factors in existence which supported his Honour's conclusion that Mr Sampey, Mr Wake, Mr Doherty and Mr Norris (through Angourie Investments) were carrying on a business through a partnership, which are detailed at [137] ‑ [140] of the Primary Reasons.
6. In summary, his Honour relied upon the following matters:

(a) the agreement reached by Mr Sampey, Mr Wake, Mr Doherty and Mr Norris to jointly acquire the Fanfare premises and conduct the business of Park Auto Centre from those premises;[73]

(b) the agreement by those parties to use Fanfare, which was a jointly owned company, as the corporate vehicle for this business;[74]

(c) the decision by those parties to borrow money jointly from St George Bank;[75]

(d) the representation made by those parties to St George Bank that the business structure included the 'MDN Partners' partnership;[76]

(e) the decision by those parties to adopt the name MDN Partners, which they registered as a trading name and in respect of which they filed partnership tax returns (through the firm Sampey & Co);[77]

(f) the fact the partners disclosed income from MDN Partners in their individual returns as well;[78] and

(g) the fact Sampey & Co maintained a trust account in the name MDN Partners[79] and produced partnership financial statements for MDN Partners.[80]

1. Having found that a partnership had been established, his Honour proceeded to consider the scope of that partnership. His Honour's reasoning in this regard is the subject of criticism on appeal.
2. The Primary Judge recognised that a partnership could be confined to one joint activity or be a continuing relationship between its members.[81] In this regard, his Honour cited the decision of Leeming JA in the New South Wales Court of Appeal in Murdoch v Mudgee Dolomite and Lime Pty Ltd (in liq).[82] Within the passage cited by the Primary Judge, Leeming JA referred with approval to the well‑known passage of Dixon J in Birtchnell v Equity Trustees, Executors and Agency Co Ltd,[83] as well as the reasons of French CJ and Keane J in Howard v Federal Commissioner of Taxation.[84] We will return to these authorities below.
3. His Honour's reasons continue as follows:[85]

[142] MDN Partners may, initially, have been conceived as a single venture, relating solely to the purchase of the Fanfare premises and the operation of Park Auto Centre from there. MDN Partners, as lessors, leased the Fanfare premises to Fanfare to conduct business on the land, while intending to either sell or develop the land at some time in the future and to share the profits of that venture. That purpose survived Sampey and Wake separating themselves from the Fanfare business and company.

[143] But the course of dealings went beyond a single venture. MDN Partners continued to invest, first in Brookdale, and later in 720 Albany Highway. It was not a single venture partnership, but an ongoing business of purchasing and owning land with a view to profit. Mr Sampey's evidence was that he was always looking for opportunities 'for us to develop ‑ to buy', and he would take anything to the other partners and ask what they thought.

[144] I am satisfied that the Brookdale investment was part of the business of MDN Partners. Although Norris, and not Angourie, was named as a party to the contract, the payments under the agreement with the vendors (Russell and Lisa Atthowe) were recorded in the financial statements of MDN Partners. Sampey's evidence about the payment of management fees from the partnership showed that he treated the commitment to the Atthowes as part of the partnership cashflow, so that when that deal was completed there was surplus income. When Norris sold his interest in Brookdale, the payment was made to Angourie.

1. So, following on from the references to the authorities just identified at [141] of the Primary Reasons, his Honour thus observed that MDN Partners may initially have been conceived as a single venture, confined solely to the purchase of the Fanfare premises and the operation of the Park Auto Centre from those premises.[86] However, his Honour found that MDN Partners had intended to either sell or develop this land at some time in the future and share the profits from that venture.[87] His Honour concluded that this broader purpose survived Mr Sampey and Mr Wake separating themselves on 30 June 2004 from the Fanfare business and company.[88]
2. More importantly, his Honour found the course of dealings between the parties 'went beyond a single venture'.[89] It was an ongoing business of purchasing and owning land with a view to profit, which continued to invest, first in the Brookdale Property and subsequently in the property at 720 Albany Highway.[90]
3. The primary evidence to which his Honour had regard in reaching his conclusions as to the scope of the partnership included Mr Sampey's evidence that he was always looking for opportunities, and the contemporaneous documentary material created by the parties for the purposes of the partnership. We will address these two aspects of the evidence in turn.
4. In the Primary Reasons at [143], his Honour expressly relied upon the evidence of Mr Sampey to the effect that he was always looking for opportunities 'for us to develop ‑ to buy' and he would take anything to the other partners and ask what they thought.[91] The evidence of Mr Sampey to which the Primary Judge referred in this regard emerges from the cross‑examination in the following passage:[92]

VISSCHER, MS: There's another entry on the same page, on 15 February 2007, and it says:

Meeting with Tony Hatt regarding town planning concept plan for Victoria Park.

SAMPEY, MR: Yes.

VISSCHER, MS: So you've had discussion with Tony Hatt for several months; correct? -

SAMPEY, MR: On and off, it seems, yes.

VISSCHER, MS: And you didn't tell Mr Doherty and Mr Norris about everything you were doing, did you?

SAMPEY, MR: They knew it was ongoing. I was always looking for opportunities for us to develop ‑ to buy. That's what I do, you know, and they knew ‑ they knew that was going on, and anything that I would come up with I would take it to them ‑ say, 'What do you think of this, guys?' If they didn't like it, it didn't happen. It's what I did and it's what I enjoyed doing. (emphasis added)

1. As is evident from the above passage, the cross‑examination of Mr Sampey at this point concerned an event in his diary which took place in February 2007, which is well after the acquisition of the property at 716 Albany Highway and the Brookdale Property. We will return to that aspect of the evidence in due course.
2. In the Primary Reasons at [139] and [140], his Honour had regard to the terms of the partnership tax returns and partnership financial statements. His Honour also made express reference to the partnership financial statements when considering whether the interest in the Brookdale Property formed part of partnership (at [144] of the Primary Reasons). The documentary evidence adduced by the respondents at trial, which was relied upon by them to sustain the submission that the partnership carried on the business of property investment and leasing,[93] includes:

(a) the application for finance submitted to St George Bank by MDN Partners in December 2003 which listed the industry of the business as 'Property Investment';[94]

(b) the letter from Mr Sampey to St George Bank dated 27 September 2004 stating that the partners of MDN Partnership were The Mustang Unit Trust, the PD Trust and the Angourie Unit Trust, that the partnership owned 707‑709 Albany Highway, and that Fanfare paid rent to the MDN Partnership;[95]

(c) various financial statements for MDN Partners which listed:

(i) the properties at 707‑709 Albany Highway and 720 Albany Highway as assets (from 2004 to 2012 and 2007 to 2012 respectively);

(ii) the loan in relation to the Brookdale Property;

(iii) the bank loan from St George Bank which financed the purchase of 707‑709 Albany Highway and 720 Albany Highway;

(iv) the rent received from Fanfare between 2004 and 2012;

(v) the rent received from the tenant of 720 Albany Highway for the period 2007 to 2011; and

(vi) the expenses which were consistent with a property investment and leasing business;[96]

(d) the partnership tax returns for MDN Partners prepared by Sampey & Co, which included amounts for total business income, total expenses, net income and net loss which were consistent with the amounts in the financial statements for MDN Partners for the years 2004 and 2007 to 2011, with a modest variance in the 2006 tax year;[97] and

(e) the partnership tax returns for MDN Partners prepared by Sampey & Co, which included amounts for assets, liabilities and proprietors' funds which were consistent with the amounts in the financial statements for MDN Partners for the years 2006 to 2008, 2010 and 2011, with a modest variance in the 2009 tax year.[98]

1. Much later in his Honour's reasons, he addressed the claim in relation to the property at 716 Albany Highway, and whether that was a partnership opportunity. At [523] to [525] of the Primary Reasons, his Honour held as follows:

[523] When Sampey and Wake purchased this property, they were in partnership with Doherty and Norris. The partnership had purchased the Fanfare premises, which it leased to Fanfare, and later acquired interests in the Brookdale property and acquired 720 Albany Highway. The partnership business is properly described as property investment.

[524] It is not in dispute that Norris informed Sampey and Wake of the availability of 716 Albany Highway as a partnership opportunity. The purchase of that land was an opportunity for MDN Partners which, in breach of their fiduciary duty as partners, Sampey and Wake appropriated for their own benefit. There was neither any plea nor evidence that Doherty or Norris (on behalf of Angourie) consented to Sampey and Wake taking the opportunity for themselves.

[525] Doherty and Angourie plead, in the alternative, that Sampey and Wake account to MDN Partners, alternatively to them, in respect of the profits obtained from the sale of 716 Albany Highway, alternatively that there be an order for equitable compensation. (emphasis added)

1. Much of the focus of the appellants' contentions on this appeal, in respect of ground 1, rests upon the emphasised finding of the Primary Judge at [524] of the Primary Reasons, which is said to be erroneous.
2. The scope of the partnership was also the subject of oral testimony from Mr Norris. Mr Norris volunteered evidence in relation to the scope of the partnership, which prompted a request for clarification from the Primary Judge. We refer to the following passage from the evidence at trial, and the emphasised portions in particular:[99]

VISSCHER, MS: Now, I'm going to change topics. If - - -

NORRIS, MR: But if I can just say ‑ if I could say something. With that ‑ with the ‑ the purchasing 716 Albany Highway, it was always said that we would get into other land investments in the future, and that was the reason why - -

ALLANSON J: I'm sorry, when you said 'it was always said' - - ---

NORRIS, MR: --- Yes. Mr Sampey and Mr Wake and Phil Doherty and myself, it was said we would always get into other land investments in the future, and that is why I rang Steve Wake to tell him about those properties. Because that was ‑ that was said.

NORRIS, MR: ---Well, it was actually said, firstly, when we bought ‑ when we purchased 709 Albany Highway, and - - -

NORRIS, MR: --- After we had purchased 709 ‑ 707‑709 Albany Highway, Bruce Sampey had said after that that we would get into other land investments in the future, and that was the reason why I called Mr Wake, to let him know that these two properties were available. (emphasis added)

1. This evidence was not expressly referred to by his Honour, although it is supportive of the finding made as to the broader scope of the partnership as 'property investment'. On its face, this evidence, if accepted, would point to the potential existence of a prior conversation between the parties as to the scope of the partnership business. The proposition that there was such a prior conversation was not put to either Mr Sampey or to Mr Wake during their evidence.[100] Senior counsel for the appellants on appeal described this unsolicited evidence as having a 'ring of convenience about it'.[101]
2. The Primary Judge ultimately concluded that the opportunity to acquire 716 Albany Highway was a partnership asset. His Honour similarly found that the Brookdale Property was an asset of the MDN Partnership.
3. While the existence of the partnership is not challenged on appeal, the appellants squarely contest the Primary Judge's conclusions as to the scope of the partnership, as will be evident from the first two grounds of appeal.
4. The appellants challenge on this appeal the finding that the purchase of 716 Albany Highway was an opportunity for the MDN Partnership (ground of appeal 1), and the finding that the Brookdale Property was an asset of the MDN Partnership (ground 2).

1. The foregoing conclusions left his Honour to address the laches defence pleaded by the appellants. The appellants pleaded that any equitable claim by Mr Doherty or Angourie Investments with respect to the property at 716 Albany Highway had become unmaintainable by early 2010 by virtue of delay and acquiescence on their part.[102]
2. The defence was largely ignored by the appellants at trial, and no submissions were made by them in opening or closing in support thereof.
3. The Primary Judge addressed the defence in brief terms, identifying the relevant pleading at [558] of the Primary Reasons and the absence of any evidence of prejudice at [559]. The appellants appeal against the rejection of the defence (see ground of appeal 3, which is expressed to be an alternative to ground 1).

1. The Primary Judge ordered the winding up of the MDN Partnership and the taking of accounts in relation to partnership property. The account was to include the proceeds of the sale of the property at 716 Albany Highway.[103]
2. Having found that the Brookdale Property was an asset of the MDN Partnership, his Honour was not asked to grant any relief in that regard.
3. The substantive relief ultimately granted by the Primary Judge, flowing from his findings on the partnership claims was as follows:[104]
   1. The partnership formerly conducted by the first and fourth plaintiffs and the third defendants under the name and stye MDN Partners ('the partnership') is declared to be dissolved as from 7 August 2015 and that the partnership business be wound up under the direction of this Court.
   2. It is declared that the property known as 716 Albany Highway, Victoria Park, being the whole of the land comprised in Certificate of Title Volume 1655 Folio 220, was an asset of the partnership from 15 March 2004.

1. An account be taken, on a wilful default basis so far as the conduct of the third defendants is concerned, of the dealings and transactions of the partnership and of the first and fourth plaintiffs and the third defendants in relation to the partnership.
2. The account be taken before a Registrar of this Honourable Court.
3. The account is to be based on:

(a) orders 2, 4, 5 and 6 above;

(b) the finding that management fees totalling $106,800 were paid to the third defendants in breach of their fiduciary duty to the partnership.

The unconscionable conduct claims ‑ the cases presented at trial

1. The unconscionable conduct claims pleaded by the respondents, and agitated at trial before the Primary Judge, sought relief arising from the conduct of Mr Sampey and Mr Wake in respect of the following matters:

(a) the execution of the Deeds of Loan entered into by Mr Doherty and Mr Norris in late 2011;[105]

(b) the execution of the contracts of sale and the transfers of 707‑709 Albany Highway and 720 Albany Highway (and the registration of those transfers);[106] and

(c) the execution of a new lease in respect of the Fanfare Premises at 707‑709 Albany Highway dated 1 January 2012.[107]

1. Although the clarity of the Statement of Claim was criticised by the Primary Judge and his Honour expressed a degree of uncertainty at the precise relief being sought,[108] it is tolerably clear that the pleading sought relief concerning the matters in (a), (b) and (c) of the preceding paragraph. Further, the pleading captured a course of conduct which commenced in around mid‑2011, which stretched through late 2011, and travelled into 2012.[109]
2. The pleaded case said to support these claims was summarised by his Honour at [371] to [388] of the Primary Reasons. The salient parts are identified below.
3. The respondents pleaded an oral agreement, made on or about 9 December 2011, between Mr Doherty, Mr Norris, and Mr Sampey, with Mr Doherty and Mr Norris each acting in his own right and for and on behalf of Fanfare. The effect of the agreement was:

(a) that Mr Sampey would advance $600,000 to Fanfare, then

(b) Fanfare would have two years to repay the loan, and

(c) the Fanfare premises and the property at 720 Albany Highway would be security for the advance. Fanfare would also enter into a new lease for a period of two years.[110]

1. The respondents pleaded that, on or about 9 December 2011, Mr Sampey paid $200,000 to Fanfare[111] and then, in late December 2011, Mr Doherty and Mr Norris entered into two written agreements by which funds were to be advanced to Mr Doherty and Mr Norris. These are the Deeds of Loan. The first was with Mr Sampey and his wife, to advance $300,000. The second was with Mr Wake and his wife, also to advance $300,000. In each case, the agreements were entered into on behalf of the appellants' superannuation funds.[112]
2. An email prepared by Mr Sampey dated 12 December 2011, which had been addressed to Mr Norris, Mr Doherty and Mr Wake, assumed some significance at the trial.[113] The full terms of this email which, although drafted by Mr Sampey, was not sent and not seen by Mr Norris and Mr Doherty, were as follows:[114]

I am currently on the plane en route to Cairns and thought it would be wise to document the agreement in principle as it relates to the $600,000 advanced to Fanfare Pty Ltd. I will detail the arrangement in point form as follows:

1. The effective date of the transaction will be 1/1/2012.
2. $400,000 has now been advanced by way of prior loan and cash advance paid Friday 9th December by bank cheque.
3. The advance will consist of two $300,000 payments from The Sampey Super Fund and The Wake Super Fund. The advance must be documented as our Super Fund auditors will insist on this. I will prepare the loan documents for all to sign. The loans will be secured by way of a second mortgage to be registered against the properties situated at 720 and 707 to 709 Albany Hwy East Victoria Park.
4. The agreement is that the loan will be repaid in full in two years with accrued interest or the Doherty and Norris interest in the properties will be assigned to Wake and Sampey or the nominees in full and final settlement of the debt. Wake and Sampey will also need to be compensated for their out‑of‑pocket costs in relation to the maintenance of the property during the two years. This will essentially be the loss incurred and funded during this period by Wake and Sampey.
5. In the New Year 720 Albany Hwy will be put up for sale... as will adjoining property 716 Albany Hwy. These properties will be sold separately or as one at the discretion of Wake and Sampey but all efforts will be made to secure the best price for 720 Albany Hwy. As agreed the proceeds of the sale will be shared equally after deducting selling and holding costs. If the property does not sell within a reasonable time it will be offered for lease.
6. Fanfare agrees to lease the premises situated at 707 to 709 Albany Hwy for a monthly rent of $9000 plus GST and outgoings. This rent will be fixed for 2 years and the lease term will expire on 31/12/2013 the same day that the loan will be pre‑payable in full. The first rent payment will be 1/1/2012 and on the first of every month thereafter.

If you have any queries or I have left anything out please get back to me, otherwise please acknowledge this email and the details contained herein is a true and correct account of the dealings as you understand it.

1. Mr Sampey agreed at trial that this email documented his understanding of what had been orally agreed by the parties. The email recorded Mr Sampey's understanding of the agreement (at point 4) that if the loans were not repaid within 2 years, the interests of Mr Doherty and Mr Norris in the properties would be assigned to Mr Sampey and Mr Wake.
2. The Deeds of Loan themselves were materially different to the summary which appears in Mr Sampey's email. The Deeds of Loan do not contain references to the grant of a second mortgage over the properties, nor do they cater for the property at 720 Albany Highway to be sold in 2012 with the proceeds used to repay the advances made under the Deeds of Loan.[115]
3. Mr Sampey referred to the email of 12 December 2011 in a subsequent email dated 20 January 2012, which was in fact sent, and was in the following terms:[116]

Hi guys, you will remember some time ago I sent through an email outlining the details of the agreement between us all as it related to the property loan etc.

I recently had a hard drive failure and have lost my copy of this email. I also intended that you would each reply acknowledging the content of the email.

Before we proceed with the advance of the balance of the funds I will require the following:

1. A reply to my email acknowledging the content and agreement as to the details therein
2. Signing of contracts and land transfers as agreed. Lyn is currently preparing these documents and should have something for you next week. It is likely that we will require signatures of Julie and Lana so please be aware of this.
3. Signing of a lease agreement between Fanfare and MDN Partners for a period of 24 months from 1/1/2012 to 31/12/2013 on the terms and conditions already agreed.

The costs in relation to this exercise are estimated at around $6000 including contracts, leases, loan agreements etc. I suggest we can share this amount 50/50. Please advise if this is agreeable to you.

Hopefully you both understand that this is the proper way to deal with this matter as I have three partners who expect me to ensure that things are done as professionally as possible in order to protect everyone's interests.

1. Returning to the pleaded case, the respondents further pleaded that, by about January 2012, Mr Sampey advised Mr Doherty and Mr Norris that the balance of the funds under the agreements (being $200,000) would not be provided unless:

(a) Fanfare entered into a new lease of the premises at 707‑709 Albany Highway for a monthly rental of $9,900, including GST, for a period of two years; and

(b) Mr Doherty and Angourie Investments executed contracts of sale and transfers in respect of both the Fanfare premises and the property at 720 Albany Highway.[117]

1. The respondents pleaded that, in or about January 2012, by an oral agreement made between Mr Doherty and Mr Norris (in various capacities), and with Mr Sampey, it was agreed that Fanfare would enter into the new lease and Mr Doherty and Angourie Investments would execute contracts of sale and the transfers in respect of both the premises at 707‑709 Albany Highway and 720 Albany Highway. The documents were then to be held in escrow for a period of two years. Further, it was pleaded that, if Mr Doherty and Mr Norris had not repaid the loans at the end of two years, the lenders would be entitled to lodge the transfers for registration.[118]
2. It was pleaded that, between about December 2011 and July 2012, Mr Doherty and Mr Norris executed:

(a) the two loan agreements;

(b) the new lease for the property at 707‑709 Albany Highway; and

(c) the contracts for sale and the transfers for the properties at 707‑709 Albany Highway and 720 Albany Highway.[119]

1. The respondents pleaded that each contract did not state the purchase price and was undated.[120]
2. Mr Doherty and Mr Norris pleaded that they thereafter advanced to Fanfare the funds they received, and caused Fanfare to continue to trade, and to pay rent to MDN Partners which was used in turn to pay the loan payments to St George Bank.[121]
3. In due course, Fanfare defaulted in the repayment of the funds and was unable to repay them.[122]
4. The respondents' claim as to unconscionable conduct is found at [105] to [118] of their pleading.[123] Whilst the focus of the pleading is on Mr Sampey's knowledge and conduct, it was pleaded that he was acting as the agent for the other appellants at the time.[124] The respondents alleged that Mr Sampey had knowledge of the following matters, prior to entering into the loan agreement:[125]

[105.1] Fanfare was in financial difficulty, such that it was unlikely that it would generate sufficient profits to enable Doherty or Norris to repay the loans within 2 years;

[105.2] the likelihood that Doherty and Norris would be able to repay the loans was negligible;

[105.3] Doherty and Norris placed trust and confidence in Sampey, and were accustomed to acting in accordance with Sampey's advice;

[105.4] Doherty and Norris did not intend to seek independent legal or financial advice in relation to the transactions;

[105.5] the Third Defendants [Mr Sampey and Mr Wake] would not recommend that they seek that advice;

[105.6] the MDN Partnership had not obtained a valuation of the property;

[105.7] the MDN Partnership had not been dissolved;

[105.8] if the MDN Partnership were dissolved, the assets of that partnership would be realised and the net proceeds distributed amongst the partners, including the PD Trustee and Angourie;

[105.9] if Norris and Doherty failed to repay the loans within 2 years, the Third, Fourth and Fifth defendants would register the transfers, and thereby acquire the MDN Partnership's interest in 707‑709 Albany Highway and 720 Albany Highway at less than its market value.

1. The respondents pleaded that Mr Sampey and Mr Wake (and their respective wives) entered into the loan agreements with the knowledge set out in the preceding paragraph, and with knowledge that the value of Mr Doherty and Angourie Investments' combined interest in the property at 707‑709 Albany Highway and 720 Albany Highway 'was likely substantially higher than $600,000'.[126]
2. The respondents then pleaded that, by reason of these matters, at the time Mr Sampey and Mr Wake (and their respective wives) sought to have Mr Doherty and Angourie Investments execute the contracts of sale and the transfers, they knew:

[109A.1] that it was probable that Doherty and Norris would be unable to repay the $600,000 advanced to them;

[109A.2] that the likely value of the PD Trust's and Angourie's interests in the Premises and 720 Albany Highway was substantially higher than $600,000; and that

[109A.3] the effect of the term pleaded at paragraph 105.9 was that, in the event that Doherty and Norris failed to repay the loans made to them, they would acquire the PD Trust's and Angourie's interests in the Premises and 720 Albany Highway at a substantial discount to their true value.

1. Fundamentally, the loans to Mr Doherty and Mr Norris might be described as asset-based lending.[127]
2. The claim of unconscionable conduct was denied by the appellants in the proceedings below.
3. In essence, the appellants pleaded the funds were advanced pursuant to an agreement made in December 2011 and January 2012, partly oral and partly in writing, by which Mr Sampey and Mr Wake, through their superannuation funds, agreed to 'buy' the interests of Mr Doherty and Angourie Investments in the premises at 707‑709 Albany Highway and 720 Albany Highway.
4. This agreement was alleged to have been made in discussions between Mr Sampey and Mr Norris, and by emails passing between the parties on 20 January 2012 and 25 January 2012.[128]
5. The appellants asserted that Mr Doherty and Mr Norris executed the loan agreements pursuant to the pleaded agreement[129] and, later, in January 2012, Mr Doherty and Angourie Investments executed the contracts of sale and the transfers, also pursuant to the pleaded agreement.[130]
6. In December and January 2011, Fanfare is said to have entered into a lease of the premises at 707‑709 Albany Highway for a further term of two years from 1 January 2012 with a monthly rental of $9,900, including GST.[131]
7. In December 2011 and January 2012, as pleaded by the appellants, the Sampey Super Fund and the Wake Super Fund granted an option to Mr Doherty and Angourie Investments to buy back the interests in the premises at 707‑709 Albany Highway.[132]
8. The appellants further pleaded that, on 20 January 2012, Mr Sampey required the signing of the contracts of sale and transfers, and the execution of the lease, before the balance of the advance was made under the agreement.[133]
9. Finally, the appellants admitted they had not obtained a valuation for the premises to ascertain the market rent but denied that they were obliged to. Similarly, they admitted they did not advise the plaintiffs to ascertain the market rent, to seek independent advice, or that the agreement should be drafted by a legal practitioner, but denied they were obliged to give such advice.[134] Mr Sampey further denied that he was obliged to advise Mr Doherty and Mr Norris that they should cause Fanfare to cease to trade, appoint an administrator, or consult an insolvency practitioner, or take steps to dissolve the partnership.[135]

1. The Primary Judge made an express finding that the lease of the Fanfare premises entered into in 2012 was 'obtained by the unconscionable conduct' of Mr Sampey and Mr Wake,[136] and the 'registration of the transfers of 707‑709 Albany Highway and 720 Albany Highway was unconscionable'.[137]
2. The Primary Judge's review of the evidence and his findings are set out at [389] to [480] and [498] to [515] of the Primary Reasons. In the course of his review of the evidence, the Primary Judge made important findings as to the credibility and reliability of the witnesses. In significant respects, his Honour disbelieved the evidence of Mr Sampey.[138] His Honour described the evidence of the two valuers called by the parties as not being entirely satisfactory.[139] His Honour also expressed reservations as to whether Mr Norris' recollection of important matters was genuine.[140]
3. Before evaluating the evidence, the Primary Judge identified the importance of undertaking a precise examination of the facts and every connected circumstance, and scrutinising the exact relations established between the parties.[141]
4. The Primary Judge concluded that Mr Doherty and Mr Norris signed the transfers and sale agreements in respect of the properties at 707‑709 Albany Highway and 720 Albany Highway by way of security for the advances under the Deeds of Loan. The Primary Judge found, however, that there was no agreement between these parties for the sale of these properties. The transactions were loans, not sales.[142] The contracts and transfers were signed for security purposes only.
5. His Honour found that the loan was documented in two Deeds of Loan because there were two discrete borrowers. Each was dated 9 December 2011. There was also an oral agreement that Fanfare would enter into a new lease of the Fanfare premises for two years. His Honour found there may have been an agreement to market 720 Albany Highway for sale in 2012. Mr Sampey recorded this aspect of the matter in his email of 12 December 2011, but his Honour observed that neither Mr Doherty nor Mr Norris appeared to know of the agreement.[143]
6. His Honour's further important findings may be summarised as follows:

(a) It was unlikely that Fanfare would generate sufficient profits to enable Mr Doherty or Mr Norris to repay the loans from Fanfare's earnings within two years. If, however, MDN Partners sold either of the properties the partnership owned, the loans might have been repaid following distribution of the proceeds to the partners.[144]

(b) His Honour was not satisfied that Mr Sampey offered any business or financial advice in relation to the loan. However, he observed that there must have been an element of trust that led to Mr Doherty and Mr Norris signing the contracts and transfers (at least that Mr Sampey would not use them other than as security).[145]

(c) Mr Doherty, Mr Norris and Mr Sampey all had the benefit of the valuations of the properties obtained in October 2010, but no party had the benefit of a valuation of fair market rent.[146]

(d) The written agreements were likely to have been prepared and executed on the same day, being 22 December 2011. The documents were simply presented to Mr Doherty and Mr Norris to sign. They were offered no opportunity to consider them or to take advice, nor did they ask for that opportunity.[147]

(e) There is no evidence that a demand was ever made or that a notice of default was ever given under either Deed of Loan.[148]

(f) As part of the relevant circumstances, the Primary Judge concluded that the court should have regard to the various relationships in existence between the parties. In particular, Mr Sampey and Mr Wake were in partnership with Mr Doherty and Mr Norris and had been since 2003. Although his Honour was not satisfied that Mr Doherty and Mr Norris had placed their trust and confidence in Mr Sampey to the extent alleged, they had at times acted on his advice in relation to investments. His Honour found that Mr Sampey was the accountant for Fanfare, and also in certain respects for Mr Doherty and Mr Norris and their trusts. Mr Sampey had made the financial arrangements for MDN Partners, and maintained a trust account for it in the books of Sampey & Co. While these events were occurring, he was acting on behalf of Fanfare in dealing with a government agency in relation to Fanfare's motor vehicle dealer's licence.[149]

(g) The Primary Judge found that Mr Sampey knew of Fanfare's financial position, and that it had been losing money since 2008.[150] As their accountant, Mr Sampey was aware that Fanfare was then the primary, if not the only, source of income for Mr Doherty and Mr Norris. Mr Sampey had also formed the view, as his Honour found, that unless Mr Doherty and Mr Norris made changes, Fanfare would fail.[151]

(h) Commencing in around October 2011, Mr Sampey was aware that Mr Norris had experienced anxiety attacks.[152]

(i) Mr Doherty and Mr Norris were already indebted to the trustees of the Sampey Super Fund for $200,000. Mr Sampey was concerned about repayment of that loan. Unless the assets of MDN Partners could be realised at a substantial profit, taking into account the liability to St George Bank and the personal liabilities of Mr Doherty and Mr Norris to Westpac, Mr Doherty and Mr Norris were unlikely to be able to repay the $600,000 loan, certainly not within seven days of demand, according to the Primary Judge.[153]

(j) The security under the Deeds of Loan was a caveatable interest over the borrowers' property, his Honour found. That security could only be realised by a court ordered sale or the appointment of a receiver. The security under the oral agreement, permitting the lenders to transfer the whole of the properties to themselves, was not limited to the amount outstanding.[154]

(k) Mr Sampey took no steps to obtain a valuation of the properties. To his knowledge, the values he presented were well below the valuation undertaken in 2010 for St George Bank. On 17 January 2012, before Mr Sampey sent the email requiring Mr Doherty and Mr Norris to sign contracts for sale and transfers for the premises at 707‑709 Albany Highway and 720 Albany Highway, he and Mr Wake had contracted to sell the property at 716 Albany Highway for $1.45 million. His Honour found that the property at 716 Albany Highway was sufficiently similar to 720 Albany Highway that it must have raised questions about the value he put on that property.[155]

(l) The final finding reached by his Honour, which he described as 'critical', was that Mr Sampey and Mr Wake had no entitlement under any agreement to lodge the transfers which Mr Doherty and Mr Norris had signed. To the extent any of the underlying agreements gave Mr Sampey and Mr Wake an interest in either property, it was a security interest only. Even accepting the oral agreement to be an enforceable agreement, permitting transfer after two years, the transfers were in fact registered within about seven or eight months.[156]

1. Immediately following on from his Honour's findings at [500] to [513], his Honour did not make an express finding in his reasons that the foregoing matters, having regard to the case pleaded by the respondents, demonstrated unconscionable conduct on the part of Mr Sampey and Mr Wake in relation to the Deeds of Loan. However, after reciting the above findings, his Honour held:[157]

[515] The lease of the Fanfare premises cannot be separated from the overall transaction, when the entering of the lease was made a condition of the further advance of the loan funds. Sampey's unconscionable conduct also affects the lease. (emphasis added)

1. The relief arising from the Deeds of Loan was granted pursuant to the power in s 243 of the ACL. The exercise of that power is conditioned on a finding that there has been unconscionable conduct.
2. As will be seen, the appellants maintain that there was no finding of unconscionable conduct by the Primary Judge, for the purposes of s 21 of the ACL (ground 4). In the alternative, the appellants raise a challenge, as an error of law, that the Primary Judge provided no reasons for the findings in question and it was not unconscionable for Mr Sampey and Mr Wake (and their respective wives) to enter into loan agreements with Mr Doherty and Mr Norris (ground 5).

The unconscionable conduct claims ‑ the relief granted

1. As to the finding of unconscionable conduct concerning the lease over the Fanfare Premises, his Honour declined to declare the lease void ab initio.[158] However, his Honour concluded that an order under s 243 of the ACL, declaring the lease of the Fanfare Premises to be void from 23 July 2012, was appropriate. His Honour expressly found that 'the lease [was] obtained by the unconscionable conduct of Sampey and Wake'.[159]
2. Further, his Honour concluded that the registration of the transfers of the Fanfare Premises and 720 Albany Highway was unconscionable, and the 'appropriate way to prevent or reduce the loss or damage suffered by injured persons is to ensure that the properties or proceeds of sale are treated as partnership property'. His Honour considered it appropriate to declare that, from 23 July 2012, Mr Sampey, Mrs Sampey, Mr Wake and Mrs Wake held the premises, or any proceeds from the sale of those premises, on trust for Mr Doherty, Angourie Investments, Mr Sampey and Mr Wake, in their capacities as MDN Partners.[160]
3. As to the Deeds of Loan, his Honour noted that the plaintiffs had sought an order that they be declared void ab initio. His Honour expressed the view that the appropriate relief might be an order under s 243(a) of the ACL declaring void the provisions of the Deeds of Loan with regard to interest, repayment on demand, and security.
4. The substantive relief ultimately granted by the Primary Judge, flowing from his findings, was as follows:[161]

1. Pursuant to section 243, Australian Consumer Law, it is ordered that each of the deeds of loan dated 9 December 2011 made between:

(a) the first and third plaintiffs and the fourth defendants; and
>
> (b) the first and third plaintiffs and the fifth defendants,

be varied by deleting Recital B and clauses 2, 3.1, 3.2, 4 and 6 of each deed and inserting a new clause 2 as follows:

'The amount advanced is to be credited against any amount found to be payable to the plaintiffs upon the finalisation of the account to be taken pursuant to the orders of the Supreme Court of Western Australia in Action CIV 1337 of 2014 made 25 January 2023.'

1. It is declared and ordered that the lease by the fifth plaintiff of the properties known as 707 and 709 Albany Highway, Victoria Park, being Lot 4 on Plan 3844, and the whole of the land comprised in Certificate of Title Volume 1169 Folio 554 and Lot 6 on Plan 1954, being the whole of the land comprised in Certificate of Title Volume 1166 Folio 413 (together '707‑709 Albany Highway') is void as from 23 July 2012 pursuant to section 243, Australian Consumer Law.
2. Pursuant to section 243, Australian Consumer Law it is declared and ordered that each of:

(a) the contract for the sale and purchase of a 50% interest in 707‑709 Albany Highway between the first and fourth plaintiffs and the fourth and fifth defendants dated 23 January 2012; and

(b) the contract for the sale and purchase of a 50% interest in the property known as 720 Albany Highway, Victoria Park, being the whole of the land comprised in Certificate of Title Volume 1655 Folio 219 ('720 Albany Highway') between the first and fourth plaintiffs and the fourth and fifth defendants dated 23 January 2012,

1. It is declared that the fourth and fifth defendants held:

(a) 707‑709 Albany Highway, any income received from those properties and any proceeds from the sale thereof upon trust for the partnership from 23 July 2012;

(b) 720 Albany Highway, any income received from that property and any proceeds from the sale thereof upon trust for the partnership from 3 August 2012.

1. The grounds of appeal are as follows:[162]

1. The Learned Trial Judge erred in law or in law and fact, by finding, at [524], that:

1.1 it was not in dispute that Mr Norris informed Sampey and Wake of the availability of 716 Albany Highway (716 Albany Highway) as a MDN Partnership opportunity;

1.2 the purchase of 716 Albany Highway was an opportunity for MDN Partners; and

1.3 in breach of their fiduciary duties, Sampey and Wake appropriated that opportunity for their own benefit.

1. Whereas, as to [1.1], the Learned Trial Judge ought to have:

2.1 identified that it was in dispute that Mr Norris had so informed Sampey and Wake that it was a partnership opportunity; and

2.2 made findings (and have provided reasons for any such findings) on the contested issue of whether the purchase of 716 Albany Highway was an opportunity for MDN Partners.

1. Whereas, as to [1.2] and [1.3] above, the Learned Trial Judge ought to have held that the scope of the scope of fiduciary obligations owed by Sampey and Wake to the MDN Partnership were limited to the properties at 707‑709 Albany Highway and 720 Albany Highway, Victoria Park from the dates of their respective purchases and did not extend to any other property, including not extending to 716 Albany Highway, such that the purchase of 716 Albany Highway was not an opportunity for MDN Partners.

1. The Learned Trial Judge erred in fact by finding, at [143] ‑ [144], that the 50% interest in the property at 76 [sic 67] Willows Road, Brookdale was owned by MDN Partners, where that finding was against the weight of the evidence.

1. In the alternative to Appeal Ground 1, the Learned Trial Judge erred in law by finding, at [559] ‑ [560], that the defence of laches had not been established on the grounds that there was no evidence as to prejudice suffered by the respondents' delay in bringing the claim relating to 716 Albany Highway.
2. Whereas the Trial Judge ought to have held that:

6.1 the defence of laches may be established in the absence of evidence of prejudice where the delay implies acquiescence and assent to the alleged breach; and

6.2 the respondents acquiesced and assented to Sampey and Wake purchasing 716 Albany Highway,

in the circumstances where the Learned Trial Judge found or ought to have found that:

6.3 the respondents knew that Sampey and Wake had purchased 716 Albany Highway from early 2004;

6.4 the respondents knew of the proposed sale of 716 Albany Highway before the time of its sale at about early 2004; and

6.5 the respondents took no steps to assert rights to 716 Albany Highway until commencing the proceeding below in 2014.

1. The Trial Judge erred in law by ordering that the following provisions of the deeds of loan dated 9 December 2011 be deleted, namely:

7.1 the provisions of those deeds that entitled the fourth to seventh appellants to charge interest on the funds advanced by the fourth to seventh appellants (being Recital B and clauses 3.1 and 4 of each deed of loan); and

7.2 the provisions of those deeds by which the first and third respondents granted security to the fourth to seventh appellants (being clause 6 of each deed of loan),

where there was no finding that it was unconscionable, for the purposes of s 21 of the Australian Consumer Law, for the fourth to seventh appellants to:

7.4 enter into any secured loan agreement under which the first and third respondents were obliged to pay interest at a rate of 10% per annum or a default rate of 14%per annum.

1. Alternatively to Appeal Ground 4, if the Court below did find that it was unconscionable, for the purposes of s 21 of the ACL, for the fourth to seventh appellants to:

8.1 charge interest or enter into loan agreements under which the first and third respondents were obliged to pay interest at 10 per cent per annum or a default rate of 14 per cent per annum; or

8.2 enter into loan agreements under which the first and third respondents provided security for the loans,

8.4 in all of the factual circumstances found by the primary judge, it was not unconscionable for the fourth to seventh appellants to enter into loan agreements with the first and third respondents on those terms.

1. The substantive orders sought by the appellants on this appeal are as follows:[163]
   1. The appeal be allowed.
   2. Order 2 made on 25 January 2023 be set aside.[164]
   3. Order 3 made on 25 January 2023 be varied by:[165]

3.1.2 '3.1, 3.2, 4 and 6'; and 3.2 inserting 'together with interest' after the words 'The amount advanced'.

1. Order 9(a) made on 25 January 2023 be varied by deleting the numeral '2'.[166]
2. Order 1 made on 7 February 2023 be varied by inserting the following after the words 'for breach of the duties pleaded in Statement of Claim [10] and [12],':[167]

for breach of fiduciary duty pleaded in Statement of Claim [23] to [27], for unconscionable conduct associated with the agreements pleaded in Statement of Claim [83] and [84],

1. The first appeal ground focuses on the Primary Judge's conclusion that the purchase of the property at 716 Albany Highway was an opportunity for the partnership which had earlier been established by the parties.[168]
2. It is not in dispute that this property was acquired in March 2004 by Mr Sampey and Mr Wake as an investment.[169] It is also not in dispute that the acquisition was not initially disclosed by them to Mr Doherty or Mr Norris, nor was their prior consent sought.[170]

1. As we apprehend it, the appellants' challenge on this ground has two aspects. The first aspect of the challenge directly focuses on the emphasised passage below, which is found at [524] of the Primary Reasons:

[524] It is not in dispute that Norris informed Sampey and Wake of the availability of 716 Albany Highway as a partnership opportunity. The purchase of that land was an opportunity for MDN Partners which, in breach of their fiduciary duty as partners, Sampey and Wake appropriated for their own benefit. (emphasis added)

1. The appellants contend that the Primary Judge, by this statement, accepted the evidence of Mr Norris as being determinative of the question whether, as a matter of law, the purchase of this property was an opportunity of the partnership.[171] The appellants say the Primary Judge ought to have identified that whether 716 Albany Highway was in fact a partnership opportunity was in dispute.[172]
2. The appellants' submissions expressly recognise that there was evidence at trial, which was unchallenged, that Mr Norris had informed Mr Sampey and Mr Wake that the acquisition of 716 Albany Highway was a partnership opportunity.[173]
3. The second aspect of the challenge, which flows from the first, is the contention that the Primary Judge failed to make findings and provide adequate reasons in support of those findings, as to the 'contested issue of whether the purchase of 716 Albany Highway was an opportunity for MDN Partners'.[174] In this regard, in support of the contention that the scope of the partnership ought be narrower than his Honour apparently found, senior counsel for the appellants on the appeal places emphasis on the source of the information concerning the property at 716 Albany Highway. Mr Norris had obtained that information from the daily newspaper. The appellants contend that Mr Norris could not elevate information in the public domain into a partnership opportunity by merely passing that information to Mr Sampey.[175]
4. The reasoning process of the Primary Judge is also said to have fallen into error on the basis that his Honour incorrectly relied upon the acquisition of the Brookdale Property and the property at 720 Albany Highway to support his reasoning as to the broad scope of the partnership.[176] The point made by the appellants is that the acquisition of both of those properties occurred after the acquisition of 716 Albany Highway in March 2004, and cannot logically inform the scope of the partnership at an anterior point in time.
5. The appellants ultimately contend the Primary Judge ought to have held that the scope of fiduciary obligations owed to the partnership by Mr Sampey and Mr Wake was limited to the properties at 707‑709 Albany Highway and 720 Albany Highway.[177] The appellants contend that the scope of the partnership business was confined to 'property investment' insofar as the properties at 707‑709 Albany Highway and 720 Albany Highway are concerned, and only from the dates of their acquisition.[178] The partnership was not in the business of property investment in general and was not conducting some 'ongoing' property acquisition business, the appellants say.[179] The point is made by the appellants that distinct decisions were made to acquire particular property, or part thereof, from particular points in time.[180]
6. Further, the appellants contend that the respondents' case concerning the 716 Albany Highway opportunity was brought on a 'rather imprecise pleaded position'.[181] Senior counsel for the appellants on appeal submitted that the respondents had not pleaded the scope of the fiduciary duty, which it is said was properly a matter for a plaintiff to plead. Accordingly, the respondents' attack on the appellants' pleadings in this regard was unwarranted. Senior counsel for the appellants on the appeal relied upon the observation of Leeming JA in Murdoch v Mudgee Dolomite and Lime Pty Ltd (in liq):[182]

I incline to the view that, strictly speaking, it is for the plaintiff to plead the scope of the duty which it is alleged has been breached, rather than for the defendant to allege a more circumscribed scope which does not extend to the conduct alleged to constitute the breach.

1. In their submissions on appeal, the respondents reject the contention that the Primary Judge regarded the scope of the partnership as being a matter that was not in dispute.
2. As to the pleading of the issue, the respondents draw attention to the manner in which the appellants' pleaded their case at trial. The respondents observe that the appellants pleaded a general denial to the existence of a partnership. The appellants did not plead a case at trial to the effect that, if there was a partnership, the scope of the partnership business was limited in the manner now contended in the first ground of appeal.[183]
3. The respondents further submit that the first ground of appeal should be dismissed given the evidence at trial as to the following matters in particular, and the associated findings made by the Primary Judge:[184]

(a) the acquisition by MDN Partners of the property at 707‑709 Albany Highway, and the evidence that MDN Partners was in the business of leasing those premises to Fanfare;

(b) the evidence that Mr Sampey had referred to the parties getting into 'other land investments in the future', that 'he was always looking for opportunities for us to develop and buy';

(c) the relative timing of the acquisition of 716 Albany Highway and the Brookdale Property; and

(d) the evidence that Mr Sampey presented to the partnership the opportunities to acquire the interests in the Brookdale Property and the property at 720 Albany Highway.

1. The respondents submit that the finding made by the Primary Judge as to the scope of the business of the partnership was open on the evidence, and emphasise the advantage the Primary Judge had in hearing the evidence of the primary witnesses.[185]

The evidence of Mr Norris as to the scope of the partnership

1. It must be accepted, at the outset, that the statement in the first sentence at [524] of the Primary Reasons, which we have extracted above, is expressed in an infelicitous manner. The appellants fasten upon this in mounting their challenge.
2. On its face, the statement might be taken to carry the conclusion that the scope of the fiduciary duties arising from the partnership, and whether this particular transaction was within that scope, was regarded by the Primary Judge as not being in dispute. Further still, it might carry the conclusion that the Primary Judge considered Mr Norris' assertion that this property was a partnership opportunity as somehow conclusive or determinative of the issue.
3. Any such conclusions would be inconsistent with the state of the pleadings at trial and the cases presented by the parties. The appellants had disputed at trial whether the acquisition of 716 Albany Highway was within the scope of the partnership alleged by the respondents.
4. It would be wrong, of course, for this Court to confine its assessment of the findings and the reasoning process of a trial judge to an analysis of part only of the judge's reasons. The entirety of the judge's reasons must be examined, in the context of the respective cases presented at trial, together with the relevant evidence which was led by the parties. A court of appeal is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law.[186]
5. Accordingly, the impugned passage of his Honour's reasons at [524], upon which the appellants place considerable reliance, must be read in the light of the analysis which appears elsewhere in the reasons, to the extent that analysis bears on the issue.
6. We have outlined his Honour's analysis earlier in these reasons, including at [68] to [89] above.
7. As has been shown, as an initial step, his Honour addressed the question as to the existence of the pleaded partnership. While the conclusion reached by the Primary Judge as to whether a partnership was formed is not challenged on appeal, the analysis is instructive.
8. His Honour's analysis in this regard appears at [134] to [140] of the Primary Reasons. Those reasons highlight the documentary material adduced at first instance which supported the conclusion that the interests of Mr Sampey, Mr Wake, Mr Doherty and Mr Norris were engaged in a joint enterprise in establishing their business, during 2003. They used the jointly owned company Fanfare as a corporate vehicle. They jointly agreed to acquire the particular premises from which the Park Auto Centre business would operate. They jointly borrowed money to fund the enterprise. They employed language consistent with a partnership throughout their business documents, including references to MDN Partners. They later filed partnership tax returns.[187]
9. Next, having found the existence of such a partnership, his Honour moved to consider the scope of the business which was the subject of that partnership (and the scope of the partners' fiduciary duties). At trial, the respondents expressly contended that the business of the partnership was 'property investment and leasing'.[188] The respondents drew the Primary Judge's attention to seven categories of contemporaneous documents upon which they relied to sustain this submission.
10. His Honour's analysis on this issue is evident from [141] to [144] of the Primary Reasons, as well as [151] to [156], in which his Honour found the partnership was, in fact, conducting an ongoing business of purchasing and owning land with a view to profit.[189]
11. His Honour specifically found the partnership between the parties included the investment in the Brookdale Property, which was undertaken in June 2004.[190] We accept that his Honour did not record any express finding at [141] to [144] of the Primary Reasons that the partnership also included the opportunity to acquire the property at 716 Albany Highway. The subject matter of that property was addressed later in the Primary Reasons, at [524]. The relevant finding is recorded, in our view, in the second sentence of [524] of the Primary Reasons. There, his Honour held the 'purchase of that land [being the land at 716 Albany Highway] was an opportunity for MDN Partners'. This finding is consistent with the conclusion that the partnership was in the business of property investment.
12. On a fair reading of the Primary Reasons, it is apparent his Honour approached the issues raised by the parties in relation to the partnership claims in a logical and coherent manner, addressing the existence and then the scope of the partnership.
13. Specifically, and addressing the criticism of the appellants on this appeal, when the reasons are reviewed as a whole, it can be concluded that his Honour did not treat the statement of Mr Norris as being determinative of the question whether, as a matter of law, the purchase of this property was an opportunity of the partnership. Properly understood, at [524] of the Primary Reasons, his Honour was merely recognising that there was no dispute at trial that Mr Norris had informed Mr Sampey and Mr Wake that the property at 716 Albany Highway was available for purchase. This is consistent with the statement in the appellants' own submissions on appeal that it is not in dispute that Mr Norris said 'words to the effect that he had informed Sampey and Wake that it was a partnership opportunity'.[191]
14. His Honour's conclusion on the issue must be read with the passages at [134] to [146] and at [151] to [156] of the Primary Reasons, in light of the respective cases pleaded at trial, which we have summarised above. Taken as a whole, it is apparent his Honour did, in fact, address not only the question as to the existence of a partnership but also the question as to the scope of that partnership, including whether that scope extended to the acquisition of 716 Albany Highway.
15. The impugned statement of the Primary Judge at [524] does not disclose an error, in our view. The appellants' submission to the effect the Primary Judge treated the evidence of Mr Norris as determinative should be rejected.[192]

1. Turning then to the broader challenges which form part of this ground of appeal, it should first be noted that the Primary Judge expressly recognised that the nature and extent of a fiduciary relationship depended on the particular circumstances. His Honour referred to the established authorities on this issue. Those authorities are identified below.
2. In Howard v Federal Commissioner of Taxation, French CJ and Keane JJ held as follows:

[34] Despite their broad judicial formulations fiduciary duties are not infinitely extensible. That point was made in Chan v Zacharia, which concerned the content of the fiduciary duties of members of a partnership inter se. The limits of those duties were to be determined by the character of the venture for which the partnership existed, the express agreement of the parties and the course of dealings actually pursued by the firm. The scope of the fiduciary duty generally in relation to conflicts of interest must accommodate itself to the particulars of the underlying relationship which give rise to the duty so that it is consistent with and conforms to the scope and limits of that relationship. It is to be 'moulded according to the nature of the relationship and the facts of the case'. By way of example, company directors are frequently shareholders. The decisions they take as directors may therefore affect their personal interests. They do not breach their fiduciary obligations merely because in promoting the interests of the company they are also promoting their own. On the other hand, a decision taken by directors to advantage themselves other than as members of the general body of shareholders would constitute an abuse of fiduciary powers.

1. Much earlier, Mason J (as his Honour then was) emphasised the importance of examining the particular circumstances of the situation when assessing the nature and extent of a fiduciary's duty.[193] In Hospital Products Ltd v United States Surgical Corp, his Honour referred to the observations of Learned Hand J in Phelan v. Middle States Oil Corporation,[194] as follows:

[I]f the doctrine be inexorably applied and without regard to the particular circumstances of the situation, every transaction will be condemned once it be shown that the fiduciary had such a hope or expectation, however unlikely to be realized it may be, and however trifling an inducement it will be, if it is realized. ... We have found no decisions that have applied this rule inflexibly to every occasion in which the fiduciary has been shown to have had a personal interest that might in fact have conflicted with his loyalty. On the contrary in a number of situations courts have held that the rule does not apply, not only when the putative interest, though in itself strong enough to be an inducement, was too remote, but also when, though not too remote, it was too feeble an inducement to be a determining motive.

1. The Primary Judge then referred to the following principles as expressed in Murdoch v Mudgee Dolomite and Lime Pty Ltd (in liq):[195]

[81] However, as Dixon J stated in Birtchnell, the subject matter over which the fiduciary obligations extend is determined 'by the character of the venture or undertaking for which the partnership exists, and this is to be ascertained, not merely from the express agreement of the parties, whether embodied in written instruments or not, but also from the course of dealing actually pursued by the firm.'...

[82] This Court applied Dixon J's statement in Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1; [1999] NSWCA 408, noting at [195] that 'a role which was limited when originally assumed may, by reason of conduct in performance of the role, be expanded so as to extend the duty'.

[87] The necessity of having regard to the actual course of dealing is so utterly orthodox that it may conceal the complexity of the interrelationship between common law and equity. While contract may be and often is the foundation of a status-based fiduciary relationship (such as a deed of trust, a partnership deed or a solicitor's retainer), and the contract is ordinarily the starting point for identifying the scope of the fiduciary obligation, there are cases where the limits of the area within which the fiduciary is not free to act self-interestedly are delineated not by contract but by conduct. The conduct is apt to fall short of amounting to an informal variation of contract or estoppel or some other legally enforceable right, especially when it is borne in mind that many proposals to vary a contract will themselves give rise to a conflict. A mere course of conduct by a company or partnership expanding into a new area will, without more, prevent a director or partner from taking up an opportunity in his or her own name in that new area. Thus, while the fiduciary relationship must accommodate itself to the terms of the contract so that it is consistent with and conforms to them (as Mason J famously said in Hospital Products), not uncommonly a contract which appoints someone as a partner or director may be imprecise about the scope of the person's obligation, leaving that scope to be made certain by the 'course of dealing actually pursued'. This is one reason for 'the danger of trusting to verbal formulae' and why it is important to note that there 'is no class of case in which one ought more carefully to bear in mind the facts of the case ... than cases which relate to fiduciary and confidential relations': In re Coomber [1911] UKLawRpCh 45; [1911] 1 Ch 723 at 728-729; Boardman v Phipps at 125; Warman International Ltd v Dwyer (1995) 182 CLR 544; [1995] HCA 18 at 559-560.

1. It will be evident from the foregoing that the Primary Judge had firmly in mind, when assessing the nature and extent of the partnership, the need to consider the character of the venture or undertaking for which the partnership exists, to be ascertained from the course of dealing actually pursued by the firm (in the absence of any written agreement).
2. We consider his Honour's review of the evidence identified by the parties as going to the existence (or otherwise) of the partnership, and as to its nature and extent, was consistent with the principles just outlined. His Honour's analysis is found at [134] to [145], which must be read with his findings of fact at [168] to [194] of the Primary Reasons. We have already reviewed his Honour's reasons in this regard, at [68] to [89] above. As is thus apparent, the Primary Judge did make findings on the contested issue, concluding that the partnership extended beyond a single venture, and was an ongoing business of purchasing and owning land with a vie[196]o profit.196
3. The primary matters upon which the Primary Judge relied to support the broader nature of the partnership, and the inclusion of 716 Albany Highway as a partnership opportunity, included documentation which had been prepared by the partners in 2003, and evidence of conduct on their behalf at the time.
4. For example, in December 2003, all of the partners signed the Business Account Application which was lodged with the St George Bank. That application identified the business as a partnership in numerous places in the document, it described the name of the proposed account as 'MDN Partners', and it described their 'Industry' as 'Property Investment'.[197]
5. Further, the partners had agreed by no later than December 2003 to jointly acquire the commercial property at 707‑709 Albany Highway and to jointly borrow money to fund that acquisition. The business venture, at this early stage, involved the use of the jointly owned vehicle Fanfare to lease the premises, with receipts from the leasing of the property used to service the debt to St George Bank.[198]
6. In reaching his conclusion, his Honour also placed reliance on the evidence of Mr Sampey that he was 'always' looking for opportunities 'for us to develop ‑ to buy'. The appellants criticise the Primary Judge's reliance on this evidence. As earlier noted, the evidence given by Mr Sampey in cross‑examination concerned an event which took place in February 2007. The appellants contend the evidence should be confined to this period. We disagree.
7. The question posed to Mr Sampey, and his answer, can be seen to be broader in nature than the period in or around February 2007. Mr Sampey's answer was, as we read it, a reflection of his assessment of the relationship he had with Mr Doherty and Mr Norris beyond merely the period surrounding February 2007. He describes himself as 'always' looking for opportunities 'for us to develop ‑ to buy'. In our view, it would be wrong to characterise this evidence in a narrow way. Mr Sampey's admission should be given its plain meaning.
8. Certainly, the Primary Judge did not assess Mr Sampey's evidence as being temporally confined and we cannot discern any particular aspects of the evidence or his Honour's reasons which suggest his Honour misused the advantage he enjoyed in having heard the evidence at trial.
9. On its face, the evidence was logically capable of supporting the conclusion he reached, when taken together with the other additional evidence mentioned.
10. Further, the evidence was broadly consistent with the evidence given by Mr Norris, which we identified at [85] above. Mr Norris testified that the parties had said they 'would always get into other land investments in [199] future'.199 This is why, as Mr Norris explained at trial, he called Mr Wake to tell him about the property at 716 Alb[200] Highway.200
11. Further, there was evidence below to the effect that the property at 716 Albany Highway was used to operate a very similar business to the leasing of the property at 707‑709 Albany Highway.[201]
12. There was, in our view therefore, cogent evidence before the Primary Judge which supported the conclusion he reached that the nature of the partnership's business was one of property investment.
13. There is a further criticism of the Primary Judge's reasoning which we should address. The relative sequence of acquisitions by the partnership which are identified at [143] of the Primary Reasons was the subject of submissions from the appellants. Senior counsel for the appellants on the appeal invited the Court to find error in the reasoning process of the Primary Judge in this regard. The Primary Judge observed as follows:[202]

But the course of dealings went beyond a single venture. MDN Partners continued to invest, first in Brookdale, and later in 720 Albany Highway. It was not a single venture partnership, but an ongoing business of purchasing and owing land with a view to profit.

1. The appellants submit that the assessment as to the scope or extent of the duties of the partners falls to be assessed at the particular time of the opportunity which is said to fall within that scope or extent. It is impermissible, the appellants contend, to reason that the partnership was broad in nature in March 2004 by reference to the acquisition by the parties of the 50% interest in the Brookdale Property, some 3 months later in June 2004, much less the acquisition of 720 Albany Highway some 2 years later, in July 2006.
2. We do not accept that the Primary Judge was engaging in the reasoning process identified by the appellants. At [143], his Honour identified, as a matter of fact, the further investments which were either found by his Honour as forming part of the MDN Partnership (i.e. the interest in the Brookdale Property) or which the parties agreed formed part of that partnership (i.e. 720 Albany Highway). The reasons do not suggest a process of hindsight analysis was being adopted by the Primary Judge in this regard.
3. Indeed, in our view, it would have been impermissible, on the state of the evidence, for the Primary Judge to rely upon the acquisition of 720 Albany Highway, which occurred much later, in July 2006, to support a conclusion as to the scope and extent of the partners' fiduciary duties as at March 2004. Nor did we understand the respondents to suggest on this appeal that such an approach would be permissible.
4. This is not to say that we consider it would be appropriate to analyse the extent of this partnership business (and the attendant fiduciary duties of the partners) in a rigid manner, solely by reference to the dates on which new properties are acquired. Rather, the course of the dealings between the partners requires examination in a more flexible way. The appellants' submission should be tested against the practical realities of the postulated business. In particular, having reached the conclusion which his Honour correctly did as to the nature of the partnership business, we consider it would be artificial to say that the extent of the business was then limited to the acquisition of new properties only from the date that a new property is acquired, as is submitted by the appellants.
5. Such a limit would ignore the reality that the acquisition of additional properties by a partnership in the business of 'property investment' requires some process of consideration and due diligence in relation to those new opportunities. That process would seem to us to be part and parcel of a 'property investment' business, as a matter of common sense.
6. The process by which the Brookdale Property was acquired provides a cogent example of this point. The acquisition of the Brookdale Property is not so removed in time as to be irrelevant to the assessment of the extent of the partners' fiduciary duties in March 2004.
7. The chronology of events reveals that, in early 2004, Mr Sampey had agreed with Mr and Mrs Atthowes to purchase a 50% interest in the Brookdale Property. Following on from this, again in early 2004, Mr Sampey proposed to Mr Norris, Mr Doherty and Mr Wake that they utilise the surplus income from 707‑709 Albany Highway to acquire the 50% interest in the Brookdale Property.[203] The Brookdale Property was later acquired on 17 June 2004. In our view, the process leading to that acquisition should not be ignored when assessing the extent of the partnership business.
8. The proximity in time of the anterior steps leading to the acquisition of the Brookdale Property, relative to the establishment of the business in December 2003, and the opportunity arising for the acquisition of 716 Albany Highway, are of relevance and significance to the overall assessment of the extent of the partnership business, and whether the scope of that business in mid‑March 2004 extended to capture the opportunity identified by Mr Norris.
9. Therefore, if we are wrong in our assessment that the Primary Judge did not rely on the Brookdale Property acquisition to support his finding as to the scope of the MDN Partnership in March 2004, we would nonetheless conclude that this process disclosed no error in reasoning.
10. All of these matters serve to demonstrate that the partnership business in and around March 2004 was being conducted as a property investment business. The opportunity to acquire a nearby property, for a similar commercial purpose to the property previously acquired by the partnership only months before, can readily be seen in this context as falling within the scope of the partnership business. The respondents' contention that Mr Norris had identified a partnership opportunity, having informed Mr Sampey and Mr Wake that this property was available for purchase and then suggesting to them that the MDN Partnership should purchase the property, was correctly found by his Honour (and not assumed) as being a partnership opportunity.

1. There are two further points which require comment.
2. First, as to the Brookdale Property, the appellants criticise the respondents' broad characterisation of the scope of the partnership by pointing to the absence of any challenge to the failure of the MDN Partnership to acquire the entirety of the interest in that property. The appellants submit that, if the 50% interest acquired was indeed partnership property (which is addressed in substance in the second ground of appeal), then one ought to have expected the respondents to complain in these proceedings, or elsewhere, about the acquisition of the remaining 50% interest by Mr Sampey, Mr Wake and Mr Mulhall.[204]
3. There are two answers to this criticism. The evidence of Mr Norris and Mr Doherty is that they did not know of the involvement of Mr Mulhall until some point in 2007, which was shortly before they agreed to sell their interest to Mr Sampey and Mr Wake. Further, the failure on the part of Mr Norris and Mr Doherty to pursue other claims does not amount to evidence (and certainly not cogent evidence) which might be seen as adverse to the claim they in fact chose to pursue.
4. Second, the appellants submit that Mr Norris could not elevate information obtained from the public domain to the status of a partnership opportunity. As we understood it, the appellants contention is that an acceptance of the respondents' case in this regard would render it possible for a member of the partnership to effectively sterilise or quarantine opportunities by passing on such information to his or her fellow partners, even where that information had been obtained from the public domain, perhaps in a serendipitous manner.[205]
5. There are at least two difficulties with this submission.
6. Most importantly, the submission fails to recognise the findings made by the Primary Judge that the nature of the partnership business was one of property investment and the extent of the business included new property opportunities. Mr Norris had, on the evidence, identified an opportunity to acquire a nearby commercial property. That opportunity was not alien to the nature of the partnership business, as found by the Primary Judge. Rather, it was squarely within the venture these persons had established only months before. This is not a sterilising of new opportunities - rather, it is consistent with the nature and extent of the business these partners were found to have established.
7. Further, the evidentiary platform for the appellants' challenge is absent. There was no evidence in chief from either Mr Sampey or Mr Wake at trial as to what steps they took following the receipt of this information from Mr Norris, nor any evidence as to how they came to know of the opportunity, other than from Mr Norris. Unsurprisingly, given the appellants' admission on the pleadings, neither Mr Sampey nor Mr Wake was cross‑examined about these matters.[206]
8. The first ground of appeal should be dismissed.

1. This ground of appeal challenges the Primary Judge's finding that the 50% interest in the Brookdale Property had been acquired by the MDN Partnership. It is submitted by the appellants that this finding is against the weight of the evidence.[207]

1. The appellants recognise that no relief was sought, nor granted, at trial in relation to the Brookdale Property. The appellants observe that this ground is 'in aid of the more general challenge' to the scope of the MDN Partnership found by the Primary Judge.[208] Senior counsel for the appellants on the appeal did not develop this ground at the hearing itself, preferring to rely upon the written submissions.[209]
2. The findings which are challenged appear at [143] and [144] of the Primary Reasons, as extracted below:

[143] But the course of dealings went beyond a single venture. MDN Partners continued to invest, first in Brookdale, and later in 720 Albany Highway. It was not a single venture partnership, but an ongoing business of purchasing and owning land with a view to profit. Mr Sampey's evidence was that he was always looking for opportunities 'for us to develop ‑ to buy', and he would take anything to the other partners and ask what they thought.[210]

[144] I am satisfied that the Brookdale investment was part of the business of MDN Partners. Although Norris, and not Angourie, was named as a party to the contract, the payments under the agreement with the vendors (Russell and Lisa Atthowe) were recorded in the financial statements of MDN Partners. Sampey's evidence about the payment of management fees from the partnership showed that he treated the commitment to the Atthowes as part of the partnership cashflow, so that when that deal was completed there was surplus income.[211] When Norris sold his interest in Brookdale, the payment was made to Angourie.[212] (original footnotes included)

1. The appellants submit that the factors relied upon by the Primary Judge at [144] of the Primary Reasons do not sustain the ultimate finding he made. We will address those factors below, together with the findings on the evidence which are challenged by the appellants and are summarised in the separate schedule filed by the appellants pursuant to PD 7.4.[213]
2. Refined to its essence, the appellants contend the acquisition of the interest in the Brookdale Property was undertaken by the 'Brookdale Partnership', not the MDN Partnership. The 'Brookdale Partnership' was said to be a separate and distinct partnership, comprising Mr Sampey, Mr Wake, Mr Doherty and Mr Norris, but not Angourie Investments.

1. The respondents submit the Primary Judge was correct in holding that the Brookdale Property was an asset of the MDN Partnership. The respondents observe that it is incongruous for the appellants to now contend there were two partnerships between the four parties, when at trial the appellants had asserted there was no partnership whatsoever.[214]
2. The respondents submit that the second ground of appeal rests largely, if not solely, on the statement of Mr Sampey given in cross-examination as to the existence of the Brookdale Partnership. The respondents highlight the Primary Judge's adverse assessment of Mr Sampey's credibility. The respondents stress the need to examine the whole of the evidence before the Court including the existence of contemporaneous documents to which the Primary Judge referred in his reasons, all of which it is said support the finding made.[215]

1. The respondents correctly submit that, in order to succeed on this ground, the appellants are required to do more than show that there was an alternative finding open on the facts.
2. The applicable principles were set out by this Court in Leeder v The State of Western Australia:[216]

[84] As the appeal turns substantially on the learned trial judge's findings of fact, it must also be recognised that the onus which lies on an appellant who appeals against findings of fact goes beyond merely showing that an alternative finding was available on the facts. The appellant must show that a factual error was made by the learned trial judge. As the Full Federal Court said in Minister for Immigration, Local Government and Ethnic Affairs v Hamsher [1992] FCA 184; (1992) 35 FCR 359:

The court must be satisfied that the judgment of the trial judge is erroneous and it may be so satisfied if it reaches the conclusion that the trial judge failed to draw inferences that should have been drawn from the facts established by the evidence. The court is unlikely to be satisfied if all that is shown is that the trial judge made a choice between competing inferences, being a choice the court may not have been inclined to make but not a choice the trial judge should not have made [369].

1. More recently, in both Joyce v Anderson[217] and Wright v Lemon,[218] this Court has endorsed the following observations as to the proper approach to be taken on an appeal such as the present:

(a) An appellant who challenges a primary judge's finding of fact must demonstrate that the finding was wrong, not merely that an alternative finding was open.

(b) The principles of appellate restraint do not apply only to credibility based findings. Appellate restraint in relation to interfering with a primary judge's findings applies when a finding is likely to have been affected by impressions the judge has formed about the credibility and reliability of a witness as a result of seeing and hearing the witness give evidence.

(c) Where an assessment of the reliability of a witness involves the kind of issues and the approach to fact‑finding that apply to the assessment of the credibility of a witness, an appellate court will not interfere with a primary judge's finding of fact, unless the finding is demonstrated to be wrong:

(i) by reference to incontrovertible facts or uncontested testimony;

(ii) because the finding is glaringly improbable or contrary to compelling inferences; or

(iii) because the primary judge failed to use, or has palpably misused, his or her advantage as the primary judge.

(d) The nature and extent of a primary judge's advantage over an appellate court informs both what must be demonstrated to establish error in the primary judge's findings and the extent of appellate restraint in relation to those findings. For example, there is a distinction between a finding based on the credibility of a witness and a finding based on inferences drawn from undisputed facts or facts as found. Accordingly, the nature of the challenged finding and the process of reasoning by which the finding was made affect what must be demonstrated in order to establish appellable error.

(e) The principle of appellate restraint is derived from the 'natural limitations' of the appellate process and the degree of 'comparative advantage' or 'relative advantage' possessed by a primary judge as a result of the primary judge having seen and heard the witnesses. Those advantages have been described as many and varied and may vary from case to case.

(f) Where a primary judge's finding concerns an issue involving impression or judgment, the primary judge's 'comparative advantage' or 'relative advantage' in making that finding should be given 'proper weight'.

1. Accordingly, this court should not interfere with a primary judge's findings of fact, unless they are demonstrated to be wrong.
2. We turn next to examine the criticisms raised by the appellants.

The parties to the contract of purchase and sale agreement

1. The contract of purchase for the interest in the Brookdale Property is dated 17 June 2004.[219] It is described on the cover page as being between Russell and Lisa Atthowe, as vendor, and 'The MDN Partners', as purchaser. The purchaser is further defined in the agreement to be 'Gregory Norris, Philip Carl Doherty and The Mustang Unit Trust (MDN Partnership) of C/- Sampey and Co'. For the purchaser, the agreement was signed by Mr Norris, Mr Doherty, and both Mr Wake and Mr Sampey as trustees for The Mustang Unit Trust.
2. Some years later, in February 2007, both Mr Doherty and Mr Norris signed agreements to each sell a 25% interest in the above agreement to Mr Sampey and Mr Wake as trustees for The Mustang Unit Trust. The agreement signed by Mr Norris named him as the seller of the interest.
3. The absence of Angourie Investments as a party to the purchase contract in 2004, and the sale agreement in 2007, is said by the appellants to be of some significance. The significance is that Angourie Investments, not Mr Norris, was a partner in the MDN Partnership.
4. His Honour recognised the significance of naming Mr Norris rather than Angourie Investments in these instruments, as is apparent from [144] of the Primary Reasons.
5. His Honour did not regard this as undermining the conclusion that the acquisition of the interest in the Brookdale Property was undertaken by the MDN Partnership, as part of its business. In this regard, his Honour relied upon the additional evidence as to the manner in which the partnership treated the acquisition in its accounts and found that the payment by The Mustang Unit Trust upon the acquisition of the interest in 2017 was made to Angourie Investments, in any event. We will address these matters further below.
6. Further, it is relevant to the analysis that the contract of purchase executed in June 2004 was prepared by Mr Sampey and expressly used the label 'The MDN Partners' on the cover page of the instrument and referred to the 'MDN Partnership' when describing the parties to the instrument on the first operative page. Similarly, the sale agreement executed in February 2007 referred to the contract of purchase as being between 'Russell James Atthowe and Lisa Frances Atthowe and the partnership known as MDN [P]artners'.[220] The instruments simply do not mention the 'Brookdale Partnership' at all.
7. A final point should be noted on this issue. There was evidence at first instance that Mr Sampey had occasion to equate Mr Norris and Angourie Investments in his correspondence. The respondents draw attention to Mr Sampey's email sent on 12 December 2011 in particular, which referred to the 'Norris interest' in the properties at 707‑709 Albany Highway and 720 Albany Highway. All parties accepted that these interests were held by Angourie Investments, not Mr Norris.[221] These matters tend to cogently explain any misdescription in the documents wherein Mr Norris is mentioned rather than Angourie Investments.
8. The appellants' reliance on the contractual instruments is thus misplaced. The instruments reflect Mr Sampey's loose descriptions of Mr Norris' interest and, compellingly, refer to the 'MDN Partners' rather than to the 'Brookdale Partnership'. The appellants' criticism of the Primary Judge's finding, insofar as the contractual instruments are concerned, does not demonstrate the asserted error.

1. The appellants draw attention to the Primary Judge's analysis of the financial statements prepared for the MDN Partners in two respects.
2. First, the appellants criticise the Primary Judge's reliance on the apparent fact that the payments under the contract with the Atthowe vendors were recorded in the financial statements of MDN Partners.[222] The appellants submit that the Primary Judge mischaracterised what was in fact recorded in the financial statements.
3. Second, the appellants criticise the Primary Judge's reliance[223] on the evidence apparently given by Mr Sampey as to the payment of management fees from the partnership, which his Honour concluded was consistent with treating the commitment to the Atthowes as part of the partnership cashflow.
4. The appellants submit that his Honour failed to address other matters raised by the evidence which properly explain the significance of the above matters, and which show that the factors relied upon by the Primary Judge were insufficient to establish that the Brookdale Property was an asset of the MDN Partnership.[224]
5. In our view, the criticisms advanced by the appellants should be rejected for the following reasons.
6. The financial statements for the MDN Partnership for the financial years ended 30 June 2004 to 30 June 2007 all identified a loan relating to the Brookdale Property as a non-current asset (specifically, a receivable).[225] The statements described the loan as: 'Loan ‑ Atthowe (Willows Rd)'. The inclusion within the financial statements of the loan itself might immediately be thought to be strong recognition that the interest in the Brookdale Property was in fact regarded by the partners as forming part of the partnership property. Significantly, the financial statements for the MDN Partnership were all prepared by Mr Sampey.
7. The appellants argue, however, that the failure to record a '50% interest in the Brookdale Property' as an asset, within the financial statements, points against the conclusion that the interest was an asset of the partnership.
8. As the respondents have noted, the appellants' criticism in this regard wrongly assumes the MDN Partnership obtained title to the 50% interest in the Brookdale Property upon execution of the contract of purchase. We accept the respondents' submissions in this regard ‑ the contract of purchase did not operate to have that effect.[226]
9. Further, the appellants' reliance on the evidence of Mr Sampey to explain the inclusion of the receivable in the statements does not assist their cause. Mr Sampey sought to explain that the receivable represented a loan from the MDN Partnership to the Brookdale Partners.[227] Mr Sampey explained that the loan was to enable the Brookdale Partners to pay the purchase price to the Atthowes. It is correct to say the Primary Judge did not specifically address this evidence in his reasons. Whilst it would have been preferable to do so, the absence of specific comment by the Primary Judge does not justify, without more, upholding this ground. The appellants must demonstrate that the Primary Judge's finding was wrong, not merely that an alternative finding was open.
10. As appears from the respondents' written submissions,[228] there is an extensive list of matters which were apparent on the evidence below, and which together provide a strong basis to reject Mr Sampey's contention there existed a separate partnership known as the Brookdale Partners. The respondents' submissions in this regard should be accepted. Those matters include the following:

(a) the financial statements for the MDN Partnership do not refer to the Brookdale Partners or the Brookdale Partnership in any way, even though the statements record a loan which Mr Sampey contends was made to the Brookdale Partners;

(b) the interest paid on the loan is recorded in the statements as an expense of the MDN Partnership (as 'Interest Paid ‑ Atthowe');

(c) the tax returns for the MDN Partnership, which were prepared and lodged by Mr Sampey, were consistent with the financial statements in the sense the MDN Partnership claimed tax deductions for expenses concerning the Brookdale Property;

(d) the trust account ledger for the MDN Partnership, which was maintained by Mr Sampey, recorded receipts and payments in respect of the 'Atthowe loan' or the 'Willow Road' loan over the period from 17 June 2004 to 24 August 2007;[229]

(e) the trust account ledgers did not refer to the Brookdale Partners; and

(f) Mr Sampey gave evidence that he did not prepare accounts for the Brookdale Partners partnership and did not prepare a tax return for that partnership.

1. The respondents advance a number of additional submissions to explain why the appellants' argument as to the existence of the Brookdale Partners partnership should be rejected.[230] In essence, the respondents highlight the failure on the part of the appellants to plead the existence of this partnership, the failure to mention it in opening or closing addresses, or in their written submissions below, the failure to put the existence of this partnership to Mr Doherty or to Mr Norris during cross‑examination, and the absence of any evidence from Mr Wake as to the existence of this partnership. We accept the force of these submissions.
2. The respondents also submit that, to accept the appellants' contention, the Court would need to accept that the various express references made by Mr Sampey to 'MDN Partners' in several written instruments (see [218] above) and in the financial statements (at [230] above) were merely mistakes on his part. On the whole of the evidence, it would be a most unlikely circumstance that Mr Sampey made an error of this nature on such a repeated basis, even if the Court had accepted Mr Sampey as being a believable witness, which his Honour did not.

1. The final criticism raised by the appellants concerns the payments made upon the sale of the interest in the Brookdale Property, in July 2007. His Honour's statement at [144] that 'the payment was made to Angourie', rather than to Mr Norris, is not entirely accurate.
2. It appears from the evidence below that the most significant portion of the funds was in fact paid to Mr Norris (around $750,000). At its highest, an amount of around $200,000 was paid to Angourie Investments, not Mr Norris. This is evident from the letter sent by Sampey & Co to the solicitors for Angourie Investments dated 4 April 2013, which was referred to by the Primary Judge at [144] of the Primary Reasons.[231]
3. In our view, whether all or only some of the purchase price was paid to Angourie Investments rather than Mr Norris, having regard to the totality of the evidence to which we have referred above, does not demonstrate an error on the part of the Primary Judge. Indeed, even if the entirety of the funds had been paid to Mr Norris, rather than Angourie Investments, there was nonetheless a cogent basis to reject the contention that the investment in the Brookdale Property was acquired by a partnership other than the MDN Partnership.

1. We consider the Primary Judge did not fall into error as contended by the appellants. His Honour's finding that the Brookdale Property was acquired by the MDN Partnership was amply supported on the evidence, most particularly the contemporaneous written evidence and the accounting treatment of the property transaction within the financial statements of the MDN Partnership. The conclusion and findings are not contrary to any incontrovertible facts, and are not glaringly improbable. The contention to the contrary, that the property was acquired by another, undocumented partnership, rested heavily on the evidence of Mr Sampey, whose credibility was the subject of adverse findings. It is appropriate for this Court to recognise the relative advantage the Primary Judge had in this respect, having heard all of the evidence.
2. In light of the foregoing matters, we would dismiss the second ground of appeal.

Ground 3: The laches defence relating to 716 Albany Highway

1. The third ground of appeal concerns the laches defence, and is pleaded as being in the alternative to the first ground of appeal.[232] It will be recalled that the first ground is directed at the acquisition by both Mr Sampey and Mr Wake, in around March 2004, of the property at 716 Albany Highway, and whether the Primary Judge erred in holding that this represented an opportunity for the MDN Partnership.
2. In the event the first ground of appeal is rejected (and we consider that must be the case), the appellants assert by this ground that the Primary Judge erred in law in finding that the defence of laches had not been established. The relevant defence was pleaded by the appellants in the following terms:[233]

[97.5] any equitable claim by the PD Trustee and/or Angourie (in any capacity, including as partners of the MDN Partnership alleged in paragraph 16 of the Re‑Amended Statement of Claim, which is denied) to enforce (or seek to have enforced) any rights against the third defendants with respect to 716 Albany Highway (the existence of which rights are denied) had become unmaintainable by early 2010 and at any subsequent relevant time by virtue of the delay and acquiescence of the PD Trustee and Angourie such as to give the third defendants an equitable defence of laches.

1. As is evident from the pleading, the appellants alleged that any equitable claim by Mr Doherty or Angourie Investments with respect to the property at 716 Albany Highway had become unmaintainable by early 2010, by virtue of delay and acquiescence on the part of Mr Doherty and Angourie Investments. The equitable claim was the alleged breach of fiduciary duty on the part of Mr Sampey and Mr Wake.
2. The appellants' pleading in this regard was unadorned. It did not identify any factual matters relied upon in support of the laches plea, and no particulars were separately provided.
3. As explained on appeal, the appellants complain that Mr Doherty and Mr Norris were aware of the acquisition of this property by Mr Sampey and Mr Wake at the time it occurred, made a verbal complaint in that regard at the time, but otherwise stood by and did nothing in response to the alleged breaches for some 10 years.[234]
4. This defence was not expressly abandoned by the appellants at trial. That said, the defence received almost no attention during the course of the trial from the appellants. The defence was not only not the subject of any specific evidence but was also not the subject of any opening or closing submissions at trial by counsel for the appellants, whether written or oral.
5. In these circumstances, the brevity of the Primary Judge's treatment of the defence is not surprising. His Honour's reasons are found at [558] to [560] of the Primary Reasons, under the heading 'Delay and laches':[235]

[558] The defendants plead that any equitable claim by Doherty and Angourie, including as partners in MDN Partners, with respect to 716 Albany Highway had become unmaintainable by early 2010 by virtue of the delay and acquiescence of the Doherty and Angourie such as to give Sampey and Wade an equitable defence of laches.

[559] The defendants neither pleaded nor led evidence as to prejudice suffered by the plaintiffs delay in bringing the claim. They made no submissions in support of the plea.

[560] The plea in laches has not been established. (footnotes omitted)

1. We turn now to summarise the parties' submissions on appeal and will then address the merits of the ground.

1. The parties' submissions on appeal focus on two matters.
2. The first centres on the responsibility of the Primary Judge to address the laches defence notwithstanding the failure of counsel for the appellants at trial to make submissions on the issue. This first point is not expressly raised by the terms of the appeal ground,[236] but in effect forms part of the appellants' challenge.
3. The second issue, which is squarely raised by the appeal ground, raises for consideration the nature of the laches defence as pleaded, and whether the Primary Judge misapprehended the plea. The gravamen of the ground of appeal in this respect is whether the defence of laches may be established in the absence of evidence of prejudice, where that delay implies acquiescence and assent to the alleged breach.[237]
4. As to the first of these matters, the appellants emphasise on this appeal that the defence of laches was pleaded by the appellants below, and was never expressly abandoned by them. It was therefore wrong for the Primary Judge, in determining the issue adverse to the appellants, to rely on the failure of counsel to make submissions on the issue at trial.[238]
5. Senior counsel for the appellants on the appeal (who was not counsel at trial) accepted that this submission was 'forensically unattractive' and the failure to provide assistance to the trial judge was 'suboptimal'.[239] Counsel nonetheless justified raising the laches defences on appeal by reliance on the observations of this Court in Briggs v Lunt [No 3],[240] to which we will return below.
6. The respondents, for their part, point to the evident failure of the appellants at trial to clarify the nature of the defence, and to identify for the Primary Judge the evidence said to be relied upon in support thereof.[241] As to the course of the evidence and submissions at trial, the respondents observe that:

(a) neither Mr Sampey nor Mr Wake referred to 716 Albany Highway in their evidence in chief, or in re‑examination, save for some limited evidence as to the sale of the property in 2012;[242]

(b) neither Mr Doherty nor Mr Norris were cross‑examined regarding 716 Albany Highway, such that their state of knowledge of the acquisition, when they came to know of that acquisition, and what they knew of their rights at the time, were not the subject of evidence;[243] and

(c) the defence was the subject of submissions on the part of the respondents at trial, on the basis that prejudice or detriment was a necessary element of the defence, which further highlights the omission by the appellants to address the defence themselves.[244]

1. It is necessary to expand upon this last point. Upon a close review of the written submissions filed by both sets of parties at trial, the only reference we can discern to the laches defence is found in the respondents' opening trial submissions.[245] Within those submissions, the respondents recorded their understanding of the defence being advanced by the appellants, including that it would be necessary for the appellants to show that detriment had been suffered due to the delay. In those trial submissions, the respondents cited the following passage from the decision of the New South Wales Court of Appeal in Crawley v Short:[246]

[163] The elements of the defence of laches are: (i) knowledge of the wrong; (ii) delay; and (iii) unconscionable prejudice caused to the opponent by the delay.

[164] The key element is whether, in all the circumstances, 'it would be practically unjust to give a remedy' (per Lord Selborne LC in The Lindsay Petroleum Company v Hurd [1874] UKLawRpPC 1; (1874) LR 5 PC 221 at 239-240). Normally, that means that the defendant must show both delay and detriment suffered by the delay, Fisher v Brooker [2009] UKHL 41; [2009] 1 WLR 1764 at 1781 [64] per Lord Neuberger with whom Lord Hope, Lord Walker, Baroness Hale and Lord Mance agreed.

1. There is more than one reference in the respondents' written opening submissions to the requirement for detriment or prejudice to be shown.
2. The point was also dealt with further by senior counsel for the respondents in his closing address at trial. Senior counsel said:[247]

If you accept that, your Honour, as we say you should, the opportunity to acquire 716 Albany Highway was a partnership opportunity. In relation to that, Messrs Sampey and Wake acquired that property for the benefit of the Mustang Unit Trust, and it wasn't acquired by the partnership, even though it had been raised with them.

And we refer in our written submissions to the position taken by the defendants in relation to that, but relevantly, there was no evidence of detriment (indistinct) that might be raised. (emphasis added)

1. The second aspect of this ground of appeal which was the subject of the parties' submissions concerns the content of the laches defence as pleaded. The appellants submit that the doctrine of laches comprehends two themes, relying on the decision of Murphy JA in Streeter v Western Areas [No. 2].[248] The first theme of the doctrine is delay implying not just quiescence, but rather acquiescence and assent. The second theme is delay involving a prejudicial change of circumstances.
2. Senior counsel for the appellants on the appeal accepted that no evidence of prejudice was led before the Primary Judge.[249] However, the appellants submit that the defence as pleaded invoked the first of the above themes, which does not require proof of prejudice, and the Primary Judge addressed only the second theme.[250]
3. The appellants thus contend the Primary Judge was wrong to reject the defence on the basis that he did, namely the absence of prejudice suffered by the appellants flowing from the delay in bringing the claim as to the property at 716 Albany Highway.[251]
4. The appellants further submit that the Primary Judge ought to have found that Mr Doherty and Mr Norris knew that Mr Wake and Mr Sampey had acquired 716 Albany Highway. Further, the Primary Judge ought to have concluded that the extent of the delay gave rise to the 'irresistible inference' that any claim in relation to 716 Albany Highway on behalf of the partnership had been abandoned, and Mr Doherty and Mr Norris had acquiesced to Mr Sampey and Mr Wake purchasing that property.[252]
5. In these circumstances, the appellants say the Primary Judge ought to have found that the defence of laches on the grounds of acquiescence and delay was made out, and the claim in respect of 716 Albany Highway was therefore barred.[253]
6. In opposing this ground, senior counsel for the respondents submits that relief in equity will be refused on the grounds of acquiescence and delay where the circumstances are such that it would be practically unjust to grant it, relying on, in particular, Lindsay Petroleum Co v Hurd.[254] The respondents point to the importance of assessing the length of the delay and the nature of the acts done during that period.[255] The respondents emphasise the absence of evidence adduced of the acts of Mr Sampey and Mr Wake during the period of delay, and contend that questions of prejudice remain relevant to the overall assessment.[256]
7. Ultimately, the respondents submit that the Primary Judge was correct to find that the appellants had not established the plea at [97.5] of the Defence, and there was nothing before the Primary Judge to indicate that the grant of relief would be inequitable.[257]
8. We will deal with the two components of this appeal ground in turn.

1. As to the obligation of a trial judge to consider a cause of action or a defence which has been pleaded, but which has not been addressed by a party at trial, the appellants relied on the observations of this Court in Briggs. In that case, a limitation defence had been pleaded by the defendant and had been the subject of responsive pleas by the plaintiff, including a plea that the defendant was estopped from relying upon the limitation defence. Neither counsel made submissions at trial in that case in relation to these matters. The limitation defence and the related issues were not expressly abandoned, though.
2. As might be expected given the failure to address the defence, this Court (Pullin, Newnes and Murphy JJA) was critical of counsel who had appeared for the parties at trial in that matter. However, their Honours were of the view that the trial judge ought to have raised the issue at trial. Their Honours held:[258]

[116] The limitation defence and related issues were not abandoned. Counsel for the parties who appeared at the trial must accept criticism for their failure to make any submissions at all about those issues. However, with due respect to the trial judge, it was not correct for him to disregard a pleaded defence which had not been abandoned. When it was clear that neither counsel was going to address submissions to the issues, the correct approach would have been for the trial judge to have asked counsel for the parties to explain why no submissions were made. If he had been told that the limitation defence had not been abandoned, then his Honour would have been justified in requiring the parties to make submissions about the defence and the issues which then arose.

[117] The trial judge erred in law in failing to deal with issues which were live and which had to be determined at the trial. As a result, grounds 17, 18 and 22 should be upheld. The question then is whether the case should be referred back to the trial judge for determination...(emphasis added)

1. In the result, in that case, the Court concluded the only appropriate course in light of the various factual issues which remained unresolved was to refer the matter back to the trial judge for determination of the issues.[259]
2. This Court followed the above approach in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management.[260] The appeal in that instance was against a dismissal of claims for damage to wine grapes caused by smoke from prescribed burning carried out by officers of a Government department. No written or oral submissions were made by the parties at the conclusion of the trial in relation to the pleaded claim of nuisance.
3. Pullin JA observed that the trial judge had evidently thought that the nuisance cause of action was no longer pursued. Pullin JA identified an exchange between the trial judge and counsel for the appellants on this issue, which exchange ended somewhat ambiguously, and may have led the trial judge to reach the conclusion the issue had fallen away. Nonetheless, consistent with Briggs, his Honour held:[261]

However, a party cannot be taken to have abandoned a cause of action which is supported by the pleadings unless it is expressly abandoned. The cause of action in nuisance was pleaded, it was not expressly abandoned and therefore the trial judge erred in failing to deal with that cause of action in his reasons for decision.

1. The above authorities were the subject of examination by the Full Federal Court in Siegwerk Australia Pty Ltd (In Liquidation) v Nuplex Industries (Aust) Pty Ltd.[262] In that appeal, Robertson J addressed an application by the appellants to amend the grounds of appeal, to add a fresh ground concerning matters which had been pleaded in a cross‑claim. The other members of the Court expressed no specific view on this issue.[263]
2. The issue raised by the fresh ground of appeal had, in effect, fallen away prior to the trial following exchanges between the trial judge and counsel, and through the agreement of the parties. By that agreement, the trial was conducted on an agreed set of facts, confined to one question only, which did not include the issue pleaded in the cross‑claim.[264]
3. In assessing the application to amend, Robertson J reviewed the decisions in both Briggs and Southern Properties in some detail. Recognising the differences between the factual circumstances before him and those which presented in those earlier decisions, Robertson J nonetheless respectfully disagreed with any obligation being placed on a trial judge to examine the pleadings in respect of a point on which no submissions had been put.[265]

1. The appellants contend by this aspect of the third ground that the Primary Judge fell into error in his treatment of an issue which the appellants more or less ignored at trial.
2. The approach adopted by the appellants in relation to this ground is, from the perspective not only of this Court sitting on appeal, but also when considering the trial process in its totality, an exceedingly unattractive one. The appellants' approach denies to the trial judge the benefit of submissions which might assist the judge in the process of assessing the evidence in order to reach findings thereon. Further, it denies to this Court on appeal the benefit of the trial judge's more considered reasons on the issue at hand. Finally, in a general sense, it devalues the trial process and marginalises the forensic decisions made during that process, and decreases the efficiency and effectiveness of the appellate process.
3. There is, with respect, more than a small amount of irony arising in this case, where a group of litigants wishing to rely upon a defence of laches have themselves delayed in properly ventilating that defence.
4. Against all of this, it must be accepted that the laches defence was pleaded by the appellants and was not expressly abandoned at trial. In both Briggs and Southern Properties, this Court placed significance on whether the relevant cause of action or defence had been formally abandoned. It was held in both cases that, where the cause of action or defence had been pleaded and not expressly abandoned, a trial judge's failure to deal with the matter would amount to an error of law. In both cases, as a result of the approach taken by the relevant party at trial, the trial judge wholly failed to address the point in question.
5. It may be accepted that the Primary Judge noted in his reasons that the appellants had made no submissions in support of the plea of laches. The appellants submit that error is disclosed on the part of the Primary Judge in this regard ‑ that is, through the Primary Judge's reliance on the failure of counsel to make submissions on this defence.[266]
6. The Primary Judge's reference to this failure was, however, entirely correct. No such submissions were made at trial, either in opening or closing, and whether in writing or during the oral addresses. Importantly, the Primary Judge did not state that the plea had been abandoned. Unlike the trial judges in Briggs and Southern Properties, it is not the case that the Primary Judge in the present matter ignored the defence of laches. Rather, his Honour recognised the defence had been pleaded by the appellants, did not purport to regard the defence as having been abandoned, and dealt with the defence in brief terms at [558] ‑ [560] of the Primary Reasons.
7. Accordingly, the appellants' reliance on the proposition expressed in Briggs (and applied in Southern Properties) does not assist them on this ground of appeal. Those earlier decisions may be distinguished on the basis that the Primary Judge did not ignore the pleading. The Primary Judge did not fall into error for this reason alone.
8. It remains to consider the further issue as to whether the Primary Judge misapprehended the nature of the laches defence pleaded by the appellants.

1. Laches operates as a defence to an equitable claim. As a defence, the onus of proof on the issue lies on the defendant.[267]
2. In the opening paragraph of the chapter dealing with laches in Meagher, Gummow and Lehane's Equity: Doctrines & Remedies,[268] the authors recall the statements of Lord Blackburn in Erlanger v New Sombrero Phosphate Co.[269] Lord Blackburn stated:[270]

And a Court of Equity requires that those who come to it to ask its active interposition to give them relief, should use due diligence, after there has been such notice or knowledge as to make it inequitable to lie by. And any change which occurs in the position of the parties or the state of the property after such notice or knowledge should tell much more against the party in [delay], than a similar change before he was [in delay] should do.

1. The authorities on this equitable defence were reviewed in some detail by Murphy JA in Streeter. Both parties on this appeal referred to his Honour's reasons in this regard. In the course of his review, Murphy JA noted that the doctrine of laches comprehends two themes, in the following terms:[271]

The doctrine of laches comprehends two themes. One is delay implying not just quiescence, but rather acquiescence and assent, and the other is delay involving prejudicial change of circumstances. (citations omitted)

1. In the course of analysing these themes some years later, the members of this Court in Halford v Halford,[272] which included Murphy JA, recognised the force in the suggestion that 'greater clarity of exposition might be served by confining the term 'laches' to the latter sense' mentioned by Murphy JA.
2. In Halford v Halford, the equitable claim was for breach of an express trust. The trial judge did not find any acquiescence, but rather that the defence of laches was established on the basis of delay coupled with prejudice to the defendants.[273] In explaining the concept of acquiescence, their Honours held:[274]

[147] The term 'acquiescence' itself has been used in at least two senses. The first is where the plaintiff has stood by whilst his or her right is being violated by the defendant and made no objection whilst the defendant's act is in progress, with the result that the plaintiff is taken to have abandoned the right or is estopped from asserting it. Acquiescence in this context may be understood as requiring calculated (that is, deliberate and informed) inaction by the beneficiary standing by, which encouraged the trustee reasonably to believe that the trustee's omissions were accepted and not opposed by the beneficiary. The second is where an equitable right has been violated and subsequently the plaintiff, after this violation has been brought to his or her knowledge, takes no steps for some time to remedy it ‑ in which case, the lapse of time without bringing proceedings may allow an inference of waiver to be drawn.

1. The Court in Halford v Halford addressed the issue of delay, describing the relevant delay, as we read their reasons, as the period of time which was beyond the period within which, 'in ordinary expectation', the act in question should have been done.[275] In determining what constitutes unreasonable delay, their Honours held that 'regard must be had to all the circumstances, including the nature of the claim and the conduct of the parties', and the 'degree of knowledge, the type of transaction and the prejudice to the defendant caused by the delay [where prejudice is relevant] are all matters which need to be evaluated when assessing whether a defence of laches has been made out'.[276] The analysis is necessarily fact sensitive.
2. The principles to be applied in considering the laches defence were recently outlined in this Court in Wright v Lemon.[277] In that matter, in contrast to the present case, the defendants relied upon the type of laches which involved a delay resulting in the defendant or a third party reasonably altering their position to their detriment in reliance on the delay, so that it would be inequitable to disturb the situation that had arisen.
3. Murphy JA in Streeter also considered the extent to which proof of knowledge of one's rights was an element of the defence. As to the defence of laches involving only alleged acquiescence or assent, being the first theme, his Honour understood the authorities as establishing the principle that proof of knowledge or belief of rights is a necessary element of this defence.[278] This knowledge would generally be inferred from knowledge of the relevant facts.[279] His Honour referred to the following statements of Dixon J in Hourigan v Trustees Executors & Agency Co Ltd[280] in support of this proposition:

What the plaintiff did in accepting and confirming her belief that she was beneficial owner and in allowing her to proceed in all her affairs upon that belief may 'fairly be regarded as equivalent to a waiver' of his remedy and his right (Lindsay Petroleum Co v Hurd). It is true that he did not 'know' his rights in the sense that he knew what interpretation would be judicially given to the will. But 'generally, when the facts are known from which a right arises, the right is presumed to be known' (per Knight Bruce LJ, Stafford v Stafford). He knew as much as was required in order to form a decision as to what he should do.

1. Further, in Streeter, Murphy JA was required to consider the category of cases in which special promptitude on the part of a plaintiff is required. His Honour traversed the authorities on the issue at [640] ‑ [662], pointing to the distinction in the cases between the acquisition of assets, on the one hand, and the acquisition of businesses, on the other. This Court in Halford v Halford referred to Murphy JA's analysis in Streeter, and summarised the relevant distinction as follows:[281]

[144] A distinction has been drawn between circumstances where a specific asset is acquired in breach of fiduciary duty and where a business is acquired and operated in breach of fiduciary duty. In the latter case, the plaintiff's equitable claim must be prosecuted promptly, as, generally speaking, in those circumstances a plaintiff may not stand by and permit the defendant to make profits and then claim entitlement to those profits.

1. Finally, it is appropriate to return to the statement of Lord Blackburn in Erlanger v New Sombrero Phosphate Co, extracted above. The import of that statement, as explained by Deane J in Orr v Ford,[282] is that the ultimate test in the application of this defence is whether the plaintiff has, by his inaction and standing by, placed the defendant or a third party in a situation in which it would be inequitable and unreasonable to place him if the remedy were afterwards to be asserted. Put another way, the question is whether equity would regard it to be 'practically unjust', to give relief 'which would otherwise be just'.[283]

1. The brief reasons given by the Primary Judge render the task of understanding the basis on which his Honour dismissed the defence more difficult than might otherwise be the case. It should again be emphasised that it was the failure of counsel for the appellants at trial to provide the Court with assistance on this issue which provides the explanation for the brevity of the judge's reasons.
2. The following observations can be made in relation to the reasons given by the Primary Judge on this issue.
3. First, his Honour correctly identified the terms of the pleaded defence at [558] of the Primary Reasons. Second, his Honour correctly stated at [559] that the appellants had not pleaded any prejudice suffered as a result of the delay, nor led any evidence in this regard. Given the pleaded basis of the laches defence, invoking as it does notions of acquiescence and assent, it might be thought unusual that his Honour emphasised matters concerned with prejudice. At least one explanation for this comes from the written opening submissions of the respondents and the closing oral address of senior counsel for the respondents which we have earlier mentioned. Both the submissions and the address by counsel identify an understanding, on the respondents' part at least, that prejudice was an element of the defence being advanced, which point was not corrected by the appellants during the trial. Third, as already noted, his Honour correctly observed that the appellants made no submissions in support of the plea of laches (at [559]). Finally, his Honour concluded at [560] that the plea had not been established, but did not expressly state the basis for rejecting the defence.
4. It might be contended, given his Honour had set out the terms of the pleaded defence at [558], that his Honour's rejection of the defence at [560] amounted to a rejection of the defence as pleaded. Equally, it might be contended that his Honour was rejecting the laches defence on the basis that it required prejudice be shown, given his comments at [559] and the submissions of the respondents at trial to which we have referred. It might also be asserted that his Honour was rejecting the plea on both bases.
5. Given the absence of reasoning, we do not consider a detailed exercise of further deconstructing his Honour's judgment in this regard is a profitable one. The absence of reasoning, other than on the subject of prejudice, renders this process largely one of speculation. It is fairly open to conclude from the Primary Reasons that the Primary Judge misapprehended the nature of the laches defence and wrongly considered that proof of prejudice was required for the purposes of the appellants' defence. That is, his Honour apprehended the appellants were invoking the laches defence in the second sense referred to by Murphy JA in Streeter, rather than the first sense as pleaded.
6. This is sufficient, in our respectful view, to demonstrate error on the part of the Primary Judge.

Whether to remit the issue for further consideration

1. The question then arises whether this Court is in a position to determine the matter afresh, having regard to the findings already made by the Primary Judge, or whether the matter must now be remitted for further hearing and determination. No compelling case was advanced on appeal in support of a remittal and, more fundamentally, we consider this Court is in the same position as the Primary Judge to assess the available evidence and determine whether the laches defence has been made out.
2. There are a number of particular considerations which support the conclusion that it is not in the interests of justice to remit this matter for further hearing. Those considerations include the following matters.
3. First, it is not suggested by the parties that further probative evidence would need to be adduced, to allow the Court to reach a concluded view on the laches defence. Indeed, both sets of parties had ample opportunity at trial to lead such evidence as they thought fit in relation to the defence, and to elicit evidence from the witnesses by way of cross‑examination. The trial process was not inhibited in any respect insofar as this issue is concerned, and the appellants do not suggest to the contrary on appeal.
4. Second, and allied to the first point, sufficient findings of fact have already been made by the Primary Judge in respect of the primary facts which may have some bearing on the laches defence.
5. Third, to undertake a process of remittal to a single Judge would exacerbate the length of this dispute, and add greatly to the litigation costs of each party. The proceedings have been on foot since 2014. Further delays and costs should be avoided where that is reasonably possible.
6. Fourth, the events in question stretch back to the period commencing in 2004. Any further evidence on the issues relevant to the laches defence is likely to already be stale.
7. Finally, to the extent to which the appellants are aggrieved by this course, it has been self-inflicted in our view, and should be given little weight when balanced against the other considerations.

1. In undertaking the assessment of the defence, it should be borne in mind that the defence of laches, in whatever sense it is advanced, requires the court to have regard to all the factual circumstances, including the nature of the claim, the conduct of the parties, the degree of knowledge, and the type of transaction concerned, as explained in Halford v Halford.
2. It must also be remembered that the appellants bear the onus of establishing this defence.
3. On our assessment, the defence must be rejected. We reach that conclusion for the following reasons.
4. First, no positive evidence in support of the defence was led through Mr Sampey or Mr Wake in relation to the property at 716 Albany Highway, nor as to their understanding of the position being adopted by Mr Doherty and Mr Norris in relation to that property. Further, neither Mr Doherty nor Mr Norris were cross‑examined in relation to their state of knowledge of the acquisition, when they came to know of that acquisition, and what they knew of their rights at the time. There was therefore no evidentiary basis to conclude that the respondents stood by in a calculated manner, and thereby encouraged the appellants to believe their breach of duty was accepted. Resort to inferences of knowledge as to the rights of the respondents, based on their knowledge of the underlying facts, does not assist the appellants in circumstances where the evidence on these matters was more than capable of being adduced at trial.
5. Second, the nature of the asset in question was not, on the evidence, one which required the special promptitude on the part of the prospective plaintiff which has been identified in cases such as Streeter and Halford v Halford. Those examples include claims to constructive trusts, claims in mining cases, claims to invalidate allotments of shares, and claims for the rescission of contracts. Several other examples were identified by Young JA in Crawley v Short.[284]
6. The breach of fiduciary duty in this case resulted in Mr Sampey and Mr Wake acquiring a commercial property in East Victoria Park, being the property at 716 Albany Highway. Acquisition of a commercial property in a metropolitan area may involve some element of risk for the purchaser, but no evidence was led at trial that this property was a volatile asset, nor that the acquisition of this property involved any particular or material risk to Mr Sampey or Mr Wake. Neither was there any evidence that Mr Sampey and Mr Wake dealt with the property in a particular manner in the absence of further complaint from Mr Doherty and Mr Norris. Where there is no volatile commercial property, 'equity has been more tolerant of delay'.[285]
7. Third, it may be accepted that the delay on the part of Mr Doherty and Mr Norris was significant. Indeed, the appellants naturally emphasise in their submissions the significant lapse of time between the acquisition of 716 Albany Highway and the commencement of this litigation by the respondents ‑ a delay of some 10 years.
8. Delay on its own is not sufficient, though. Indeed, the authors of Meagher, Gummow and Lehane's Equity: Doctrines & Remedies have identified a number of cases in which 'plaintiffs in equity have been successful despite spectacular delays'.[286] The authors refer to the delay by the plaintiff in Fisher v Brooker[287] of some 38 years, where the plaintiff was claiming his share of the musical copyright in the song 'A Whiter Shade of Pale'. The delay in Fitzgerald v Masters[288] is also cited, where specific performance was granted by the High Court around 26 years after the cause of action arose. Other examples abound.
9. On the evidence, it is not possible to conclude that the delay here, even though it is around 10 years, was unreasonable. To form that view, some evidence would be required to show that the lapse of time meant that the relief sought would be rendered in some way substantially more difficult. An example of the evidence required can be found in Hourigan v The Trustees Executors and Agency Company Limited,[289] where the court received evidence as to the steps taken by the trustee during the period of delay, evidence as to the third party interests which had arisen, and evidence as to the resulting impact on the 'just ascertainment' of the parties' rights which had become almost impossible.
10. It is insufficient to ground the defence merely on the delay on the part of Mr Doherty and Mr Norris, and the evidence that they were aware the property at 716 Albany Highway had been acquired by Mr Sampey and Mr Wake. The pleaded case required that acquiescence be demonstrated. We are not satisfied on the evidence this has been shown, or can simply be inferred.
11. More fundamentally, the sparse evidentiary case mounted by the appellants on this issue provides an inadequate basis to ground a conclusion that the grant of relief to Mr Doherty and Mr Norris for the evident and demonstrated breach of fiduciary duty by Mr Sampey and Mr Wake would be 'practically unjust' in all the circumstances.
12. Although we would respectfully conclude that error has been demonstrated by the Primary Judge as pleaded in the third ground of appeal, on our assessment of the evidence, we would nonetheless reach the same ultimate conclusion as the Primary Judge and reject the defence of laches.

Ground 4: Whether a finding of unconscionable conduct was made in relation to the Deeds of Loan

1. The fourth ground of appeal is directed at the unconscionable conduct claims which were pleaded by certain of the respondents as against Mr Sampey, Mr Wake and their respective wives (all as trustees of their superannuation funds) in relation to the Deeds of Loan.
2. As noted at [96] above, the unconscionable conduct claims pleaded by the respondents sought relief which went beyond the Deeds of Loan. The allegations extended to the conduct of Mr Sampey and Mr Wake in respect of the execution of the Deeds of Loan, the execution of the contracts of sale and the transfers of both 707‑709 Albany Highway and 720 Albany Highway (and the registration of the transfers), and the execution of the new lease over 707‑709 Albany Highway dated 1 January 2012.
3. The respondents' pleading captured an interconnected course of conduct on the part of Mr Sampey and Mr Wake. This conduct commenced in around mid‑2011 and stretched into 2012.
4. By the fourth ground of appeal (and, indeed, the fifth ground), the appellants do not raise any challenge to the findings of unconscionability in respect of the contracts of sale, the transfers and the lease, which they accept were made by the Primary Judge, and which led to the making of orders 4 and 5 on 25 January 2023.[290]
5. Rather, by the fourth ground of appeal, the appellants contend that the Primary Judge made no express finding that it was unconscionable for Mr Sampey and Mr Wake (and their respective wives) to enter into the Deeds of Loan, or to enter into any secured loan agreement under which Mr Doherty and Mr Norris were obliged to pay interest at a rate of 10% p.a. or a default rate of 14% p.a.[291] Such a finding was, of course, necessary to ground a contravention of s 21 of the ACL and to support the grant of any relief under s 243 of the ACL.
6. The appellants contend that, in the absence of any relevant finding of unconscionable conduct (or any other contravention of pt 2, 3 or 4 of the ACL) causing loss or damage, the Primary Judge ought not to have made the order under s 243(a) of the ACL, and the order should be set aside.[292] The appellants observe that causation of loss is a requirement of both ss 237 and 238 of the ACL.
7. The absence of an express finding in this regard was accepted by the respondents,[293] but the respondents nonetheless contend that a fair reading of the Primary Reasons as a whole makes it clear that the Primary Judge found that to be so.[294]
8. To address these competing contentions, it is necessary to carefully consider the Primary Reasons.

1. At [96] to [122] above, we summarised the cases presented by the parties at trial insofar as the unconscionable conduct claims were concerned. Further, at [123] to [131] above, we outlined the relevant findings made by the Primary Judge.
2. The Primary Judge made several express factual findings as to the conduct of Mr Sampey and Mr Wake in relation to the Deeds of Loan at [406] to [426] of the Primary Reasons, and at [498] to [515] of the Primary Reasons under the heading 'The December 2011 agreement ‑ findings'.
3. The Primary Judge's findings, with a focus on the Deeds of Loan, included the following:

(a) A finding was made that the preparation of the contracts for sale and transfers by Mr Sampey in January 2012 did not give effect to any of the various ways the agreement had been previously documented, being:

(i) the grant of a caveatable interest (as appears in the loan agreement);

(ii) a second mortgage (as identified in the email drafted by Mr Sampey of 12 December 2011);

(iii) the sale of 720 Albany Highway to a third party with the proceeds of sale to be shared equally (as identified in the email drafted by Mr Sampey of 12 December 2011); and

(iv) an agreement to assign the properties if the loan was not repaid in full after two years (again, as identified in the email drafted by Mr Sampey of 12 December 2011).[295]

(b) A finding was made that Mr Sampey's evidence to the effect that the underlying agreement was for the sale of the properties, and the loan agreements were, in some way, to be 'converted to equity' was not documented anywhere. Further, a finding was made that his evidence was inconsistent with the documents that did exist. A finding was also made that Mr Sampey's explanation that the loans were an interim measure defies common sense and should not be believed when the 'true' position was a sale.[296]

(c) A finding was made that it was unlikely that Fanfare would generate sufficient profits to enable Mr Doherty or Mr Norris to repay the loans from Fanfare's earnings within two years.[297]

(d) A finding was made that Mr Sampey did not offer any business or financial advice in relation to the loan. [298]

(e) A finding was made that the agreements were simply presented to Mr Doherty and Mr Norris to sign, with no opportunity offered to consider them or to take advice, nor did they ask for that opportunity.[299]

(f) A finding was made that there must have been an element of trust on the part of Mr Doherty and Mr Norris towards Mr Sampey, given they were in partnership together and Mr Sampey acted as the accountant for Fanfare.[300]

(g) Findings were made that Mr Sampey knew of Fanfare's financial position, and that it had been losing money since 2008,[301] that Mr Sampey as their accountant, was aware that Fanfare was the primary, if not the only, source of income for Mr Doherty and Mr Norris, and Mr Sampey formed the view that, unless Mr Doherty and Mr Norris made changes, Fanfare would fail.[302]

(h) A finding was made that, from in around October 2011, Mr Sampey was aware that Mr Norris had experienced anxiety attacks.[303]

(i) Findings were made that Mr Doherty and Mr Norris were already indebted to the trustees of the Sampey Super Fund for $200,000, and that unless the assets of MDN Partners could be realised at a substantial profit, Mr Doherty and Mr Norris were unlikely to be able to repay the loan (and certainly not within seven days of demand).[304]

1. The Primary Judge made it clear he regarded the various aspects of the course of conduct he was assessing as being interconnected. For example, at [515] of the Primary Reasons, his Honour stated:

[515] The lease of the Fanfare premises cannot be separated from the overall transaction, when the entering of the lease was made a condition of the further advance of the loan funds. Sampey's unconscionable conduct also affects the lease. (emphasis added)

1. Thereafter, at [517] of the Primary Reasons, his Honour made an express finding that the lease of the Fanfare premises was 'obtained by the unconscionable conduct' of Mr Sampey and Mr Wake,[305] and the 'registration of the transfers of 707‑709 Albany Highway and 720 Albany Highway was unconscionable'.[306]
2. The Primary Judge noted at [496] of the Primary Reasons that the respondents' pleading alleged that each of Mr Doherty, Mr Norris and Angourie Investments suffered loss and damage by reason of the alleged unconscionable conduct, including the obligation to repay the loans, and the loss of their interest in the assets of MDN Partners by the transfer of the Fanfare premises and 720 Albany Highway to the appellants for no or inadequate consideration.[307] Although his Honour did not make an express finding about the pleaded loss or damage it is apparent from his Honour's reasons as a whole in dealing with the unconscionable conduct claims that his Honour accepted that the respondents did suffer the alleged loss or damage. His Honour said at [517(2)] of the Primary Reasons, in dealing with the appropriate relief in the context of the registration of the transfers of the Fanfare premises and 720 Albany Highway, that:

In my opinion, the appropriate way to prevent or reduce the loss or damage suffered by injured persons is to ensure that the properties or proceeds of sale are treated as partnership property, and declare that, from 23 July 2012, Sampey, Linda Sampey, Wake and Tonya Wake held the premises, or any proceeds from the sale of those premises, on trust for Doherty, Angourie, Sampey and Wake, as MDN Partners.

1. In any event, we are satisfied, having regard to the Primary Judge's unchallenged findings of fact and his Honour's findings of fact that have not been successfully challenged, that the respondents suffered loss or damage by reason of the unconscionable conduct as particularised in the respondents' pleading,[308] including the obligation to repay the loans.
2. Immediately following the findings concerning the unconscionable conduct claims, his Honour addressed the relief sought in relation to the Deeds of Loan and concluded that the 'appropriate relief may be' an order under s 243(a) of the ACL, declaring the provisions thereof with regard to interest, repayment on demand and security as void, subject to hearing from the parties.[309] The final relief granted, in order 3 of the Orders made on 25 January 2023, altered the terms of the Deeds of Loan to deny the appellants in question their security and their ability to charge interest on the loans.[310]
3. As senior counsel for the appellants on the appeal recognised,[311] the Primary Judge briefly returned to the issue of unconscionable conduct at [554] of the Primary Reasons, in the context of a discussion concerning the claim for exemplary damages. The Primary Judge stated:[312]

[554] The purpose of an award of exemplary damages is to punish the wrongdoer and to deter others from engaging in such conduct. The conduct of Sampey and Wake in relation to the December 2011 loan, and the subsequent registration of the transfers, was unconscionable, and on that basis the plaintiffs are entitled to relief under the Australian Consumer Law.

[555] The plaintiffs have not established that the conduct alleged against Sampey and Sampey & Co, in failing to advise Fanfare, Doherty, Norris and Angourie was tortious. The plaintiffs have not sustained their claim for an award of exemplary damages. (emphasis added)

1. Finally, at [563] of the Primary Reasons, the Primary Judge directed that the parties bring in minutes of orders to give effect to these reasons and in particular:[313]

(4) orders to give effect to the finding that the conduct of Sampey and Wake in obtaining the contracts and transfers of 707‑709 Albany Highway and 720 Albany Highway and registering the transfers was unconscionable;

(5) an order that the lease in relation to 707‑709 Albany Highway, dated 1 January 2012, is void from 23 July 2012;

1. While the reasons at [554] of the Primary Reasons refer to a finding of unconscionable conduct in relation to the December 2011 loan, it is curious that the orders identified at [563] of the Primary Reasons do not extend to the loan and are confined to the contracts, the transfers, and the lease.

1. In our respectful view, the appellants' contention gives inadequate attention to the Primary Judge's reasons as a whole, and the manner in which the Primary Judge was required to address the claims of unconscionable conduct given the pleaded cases.
2. We will turn to the pleadings first.
3. Whilst the pleadings themselves were less than clear in some respects, what fairly emerged from the pleaded events, commencing in mid‑2011, was a course of conduct on the part of Mr Sampey and Mr Wake to acquire the interests of Mr Doherty and Angourie Investments in the properties at 707‑709 Albany Highway and 720 Albany Highway, at a substantial undervalue.[314]
4. The pleaded case required the Court to examine the course of conduct on the part of Mr Sampey and Mr Wake in relation to not only the Deeds of Loan, but the execution of the lease, the contracts for sale, and the transfers. By way of example only, it was expressly pleaded by the respondents that:

(a) Mr Sampey prepared, or caused to be prepared, the Deeds of Loan, the contracts of sale, and the transfers;[315] and

(b) Mr Sampey had advised the respondents that Mr Sampey and Mr Wake would not honour the Deeds of Loan unless Mr Doherty and Mr Norris agreed to execute the lease, the contracts for sale, and the transfers.[316]

1. The foregoing matters were appreciated by the Primary Judge, as appears from the Primary Reasons. We turn to those reasons now.
2. A review of the Primary Reasons as a whole demonstrates that the Primary Judge did not consider it appropriate to separately and distinctly assess the conduct of Mr Sampey and Mr Wake in procuring the Deeds of Loan, without regard to the overall course of conduct of which this appeared to be part. It would have been unusual and highly artificial for the Primary Judge to compartmentalise or dissect the conduct in relation to the Deeds of Loan, as distinct from the evidence touching on the contracts for sale, the transfers and the lease.
3. As already noted, the Primary Judge gave particular emphasis in his overall assessment of the conduct to the email prepared by Mr Sampey dated 12 December 2011, which had been addressed to Mr Norris, Mr Doherty and Mr Wake.[317] The full terms of this email, which was not sent, have been extracted earlier in these reasons.[318] The intentions of Mr Sampey and also Mr Wake, and the overall course of conduct, can be seen in the terms of this email. Later, in his email of 20 January 2012, Mr Sampey again identified the connection, as he saw it, between the Deeds of Loan, the contracts for sale, the land transfers, and the new lease.[319]
4. The respondents correctly submit, in our view, that the Primary Judge's analysis at [498] to [517] of the Primary Reasons, must be read together with the earlier assessment of the evidence,[320] and the express finding of unconscionable conduct at [554] of the Primary Reasons.
5. When the Primary Reasons are read as a whole, and having regard to the interconnectedness of the conduct concerning the different instruments (being the Deeds of Loan, the contracts of sale, the registration of the transfers, and the new lease), we are satisfied that, in substance, his Honour made a finding that the conduct of Mr Sampey and Mr Wake in relation to the Deeds of Loan was unconscionable contrary to s 21 of the ACL. We reach that view for the following specific reasons:

(a) First, this is the conduct pleaded by the respondents in the Statement of Claim at [84], [106] and [111], in particular.

(b) Second, there is an express finding to this effect at [554] of the Primary Reasons. The finding is that 'the conduct of Sampey and Wake in relation to the December 2011 loan, and the subsequent registration of the transfers, was unconscionable, and on that basis the [respondents] are entitled to relief under the Australian Consumer Law', such relief being to prevent or reduce the loss or damage suffered, or likely to be suffered, by them.

(c) Third, it is implicit from the reasoning at [500] to [515] of the Primary Reasons that his Honour made such a finding, given those findings concern the Deeds of Loan as well as the other instruments, and given the concluding observation in the last sentence at [515] (that 'Sampey's unconscionable conduct also affects the lease').

(d) Fourth, the finding is also implicit from the indication by the Primary Judge at [517(3)] of the Primary Reasons that he regarded relief in relation to the Deeds of Loan as being 'appropriate relief',[321] and a finding of unconscionable conduct was a necessary step to grant any such relief.

1. We would therefore dismiss the fourth ground of appeal.

Ground 5: Whether the conduct concerning the Deeds of Loan was unconscionable

1. In the alternative, by the fifth ground of appeal, the appellants contend that any such finding of unconscionable conduct (if one was made by the Primary Judge) amounts to an error of law.
2. This ground particularises the error on two bases.[322]
3. First, it is asserted that no reasons were given for this finding. Second, it is asserted that, in all of the factual circumstances found by the Primary Judge, it was not unconscionable for the Mr Sampey and Mr Wake (and their respective wives) to enter into the Deeds of Loan with Mr Doherty and Mr Norris on the terms in question. The terms identified in the appeal ground at [8.1] and [8.2] are the charging of interest at 10% p.a. or a default rate of 14% p.a., and entering into loan agreements under which Mr Doherty and Mr Norris provided security for the loans.

1. The appellants recognise that Mr Sampey may have struck a hard bargain with Mr Doherty and Mr Norris, and may even have been opportunistic.[323] Nonetheless, the appellants submit that, on the factual findings of the Primary Judge, there was nothing unconscionable about the terms of the Deeds of Loan themselves.[324]
2. The appellants acknowledge the findings made by the Primary Judge at [500] to [513] of the Primary Reasons, which concern the conduct of Mr Sampey and Mr Wake in relation to the loans and the other instruments, but submit that those circumstances did not make it unconscionable for Mr Sampey and Mr Wake to enter into the Deeds of Loan.
3. The appellants further submit that:[325]

Although the loan could accurately be described as structured to be 'asset-based lending', there is nothing inherently unconscionable about asset-based lending. There must be some other factor that makes the conduct of the lender 'morally repugnant'.

1. To support the submission, the appellants draw attention to the existence of an earlier loan from Mr Sampey to both Mr Doherty and Mr Norris, made in June 2011. The circumstances of that earlier loan were not radically different from the Deeds of Loan entered into in December 2011, yet there was 'no suggestion or finding that the June 2011 loan was unconscionable'.[326]
2. Moreover, the appellants submit that, in ordering that the Deeds of Loan should be varied to remove the interest and security provisions, the Primary Judge failed to recognise that the Deeds of Loan were 'in part a rollover of the earlier loan, and thereby deprived Mr Sampey the right to be paid interest (and have the benefit of security) for the first [loan of] $200,000'.[327] Had the original loan not been rolled over by the Deeds of Loan in December 2011, the appellants say there would be 'no question that Mr Sampey was entitled to receive interest, and have the benefit of security, for the existing loan'.[328]
3. The appellants observe that no finding was made that Mr Doherty and Mr Norris were pressured into accepting the loans. They were 'experienced businessmen not suffering from any unusual disadvantage'.[329] Further, the appellants say there were no findings as to the extent of Mr Norris' anxiety attacks or whether they affected his ability to make financial or business decisions as at December 2011.[330]

1. Fundamentally, the respondents contend the appellants, by this ground, impermissibly seek to isolate aspects of their conduct in order to minimise it.[331]
2. The respondents place a degree of emphasis on the terms of Mr Sampey's email dated 12 December 2011, being the email which was drafted but not sent. That email is said to provide support for the conclusion of unconscionability in relation to the Deeds of Loan because the email, on its terms, proposed an additional advance of $400,000 to be paid in full in two years, otherwise the whole of Mr Doherty and Mr Norris' interests in the properties at 707‑709 Albany Highway and 720 Albany Highway would be assigned to Mr Sampey and Mr Wake.[332]
3. This foregoing is described by the respondents as 'asset lending in the pejorative sense because by this stage, as his Honour found, Mr Sampey was worried about [the] $200,000 loan he had made in June'.[333]
4. More broadly, the respondents invite attention to the findings of fact of the Primary Judge at [406] to [426] of the Primary Reasons, and the further findings at [500] to [513] of the Primary Reasons. When those findings are considered together, the respondents submit that:[334]

The entry into the Deeds of Loan was the first step in the course Mr Sampey understood had been agreed on 12 December 2011, which included that Mr Doherty's and Angourie's interests in 707‑709 and 720 Albany Highway would be transferred to Sampey and Wake or their nominees if the $600,000 'and accrued interest thereon' was not repaid at the end of two years. Given the improbability of the loans being repaid, that would have allowed Messrs Sampey and Wake to acquire Mr Doherty and Angourie's interests in the two properties at a substantial discount to their true value, being (after discharge of the MDN Partnership's debt to St George Bank) approximately $1.319 million.

1. On the Primary Judge's findings, the respondents submit the conduct of Mr Sampey may fairly be described as predatory and coercive, and 'so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience'.[335]
2. A final point is made by the respondents as to the orders sought by the appellants, on the assumption this appeal ground is upheld. The respondents assert that the orders reinstating the provision that interest be paid on the advance would result in the respondents being liable for interest on the sum of $600,000 for a period of some 11 years. On any view, that would be a significant sum for the respondents. That is an outcome which the respondents say this Court should not countenance, particularly given the only assets of any substantial value they held were acquired by the appellants in 2012.[336]

(1) A person must not, in trade or commerce, in connection with:

(a) the supply or possible supply of goods and services to a person; or

(b) the acquisition or possible acquisition of goods or services for a person;

engage in conduct that is, in all the circumstances, unconscionable.

1. Section 21 of the ACL applies where a person is 'engaging in conduct' that is unconscionable. It is not directed at engaging in conduct generally. It is directed at engaging in conduct in trade or commerce, in connection with acquisition or supply, or possible acquisition or supply, of goods or services.
2. Section 21(4) of the ACL permits the court to consider the terms of a contract and the manner and extent to which it is carried out, in considering whether conduct to which a contract relates is unconscionable.
3. Section 22(1) of the ACL describes various matters to which the court may have regard in determining whether conduct in any particular case amounts to statutory unconscionable conduct. For example, the court may consider whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the person by the supplier.[337] These matters are non‑exhaustive. While these matters inform the evaluation of the conduct, it is ultimately necessary for the court to make an assessment considering all the relevant circumstances.
4. Statutory unconscionability is not a defined concept. The term 'unconscionable' in s 21 is not limited to the unwritten law relating to unconscionable conduct. It is not necessary to show that a person has a pre‑existing disability, vulnerability or disadvantage of which advantage was taken or that any particular person has been disadvantaged by the conduct.
5. Statutory unconscionability requires an objective evaluation of behaviour including the reasons for such behaviour and the effect or likely effect of that behaviour.
6. Whether or not conduct is unconscionable is a decision to be made on the facts, having regard to all relevant circumstances. That is, the court is to undertake a comprehensive analysis of all underlying factual circumstances. In Mineralogy Pty Ltd v Sino Iron Pty Ltd,[338] this Court observed that:

[114] Moreover, it is well-established that, like a court examining a claim of unconscionable conduct in equity, a court evaluating an allegation of statutory unconscionable conduct must have regard to all the circumstances of the case. Determining whether a party to a transaction has engaged in unconscionable conduct will entail 'a precise examination of the particular facts' and 'every connected circumstance' as well as 'a scrutiny of the exact relations established between the parties'.

1. To a similar effect, this Court in Gunn v Meiners[339] held that:

[147] Broadly speaking, the doctrine of unconscionable dealings involves: (1) a relationship that places one party at a 'special disadvantage or disability' vis‑à‑vis another party; (2) knowledge of that special disadvantage or disability by the stronger party; and (3) unconscientious exploitation by the stronger party of the weaker party's disadvantage or disability. These considerations should not be understood as if they are to be addressed separately as if they are separate elements of a cause of action in tort. The application of equitable principles relating to unconscionable conduct calls for 'a precise examination of the particular facts' and 'every connected circumstance' (including the 'mental capacities, processes and idiosyncrasies' of the vulnerable party) as well as 'a scrutiny of the exact relations established between the parties'.

1. In providing further elucidation of the statutory concept, Gageler J in Australian Securities and Investments Commission v Kobelt held as follows:[340]

[91] In Paciocco v Australia & New Zealand Banking Group Ltd, I referred to unconscionable conduct within the meaning of s 12CB as requiring 'a "high level of moral obloquy" on the part of the person said to have acted unconscionably'. 'Moral obloquy' is arcane terminology. Without unpacking what a high level of moral obloquy means in a contemporary context, using that arcane terminology does nothing to elucidate the normative standard embedded in the section. The terminology also has the potential to be misleading to the extent that it might be taken to suggest a requirement for conscious wrongdoing. My adoption of it has been criticised judicially and academically. The criticism is justified. I regret having mentioned it.

[92] What I meant to convey by the reference was that conduct proscribed by the section as unconscionable is conduct that is so far outside societal norms of acceptable commercial behaviour as to warrant condemnation as conduct that is offensive to conscience. To that view of the statutory standard I adhere.

[93] The judgment required of a court exercising jurisdiction in a matter arising under s 12CB is a heavy one. For a court to pronounce conduct unconscionable is for the court to denounce that conduct as offensive to a conscience informed by a sense of what is right and proper according to values which can be recognised by the court to prevail within contemporary Australian society. Those values are not entirely confined to, or entirely removed from, the values which historically informed courts administering equity in the development of the unwritten law of unconscionable conduct. They include respect for the dignity and autonomy and equality of individuals. They include respect for the cultural diversity of communities. (footnotes omitted)

1. These observations point strongly against the need to demonstrate that conduct is 'morally repugnant' (to use the term identified by the appellants in their submissions on appeal), before it is capable of being characterised as unconscionable. The more appropriate, modern focus is to assess whether the conduct is offensive to conscience, being so far outside societal norms of acceptable commercial behaviour. It has been said that the values which inform the relevant standard of conscience include:[341]

... certainty in commercial transactions, honesty, the absence of trickery or sharp practice, fairness when dealing with customers, the faithful performance of bargains and promises freely made, and the protection of those whose vulnerability as to the protection of their own interests places them in a position that calls for a just legal system to respond for their protection, especially from those who would victimise, predate or take advantage.

1. As to the aspect of exploitation which forms part of the statutory concept, the High Court in Thorne v Kennedy[342] explained the issue as follows:

The other party must also unconscientiously take advantage of that special disadvantage. This has been variously described as requiring 'victimisation', 'unconscientious conduct', or 'exploitation'. Before there can be a finding of unconscientious taking of advantage, it is also generally necessary that the other party knew or ought to have known of the existence and effect of the special disadvantage.

1. Finally, in considering the relevant principles which inform the concept, and the proper application, of statutory unconscionability, it is appropriate to refer to the decision of the High Court in Stubbings v Jams 2 Pty Ltd.[343] The facts of that matter share a degree of broad similarity to the present circumstances, involving a type of asset-based lending.[344]
2. In Stubbings v Jams 2 Pty Ltd, the court was concerned with the conduct of a lender vis a vis a guarantor. The lender was in the business of asset‑based lending or pure asset lending. As described by the plurality, this type of lending has the distinguishing feature, which often makes it easier for a borrower to obtain finance, that the loans are made exclusively on the basis of the value of the assets securing the loan 'without regard to the ability of the borrower to repay by instalments under the contract, in the knowledge that adequate security is available in the event of default'.[345]
3. It was apparent the guarantor in question required competent independent financial advice in respect of a loan which was said to be for business purposes, but in fact it was for a house the guarantor intended to live in, and to refinance the mortgages on two other properties until they were sold.[346]
4. The borrower was a company owned and controlled by the guarantor. The company had no assets and had never traded. The guarantor was unemployed and in a poor financial position (described as 'bleak' by the trial judge), with no capacity to repay the deposit on the property, and with no other assets other than two other properties.[347]
5. A certificate of financial advice was signed by an accountant but it was found to be a precautionary artifice, together with the solicitor's certificate, designed to prevent an inference that the lenders were wilfully blind to the obvious danger of the transaction to the appellant. The certificate of independent financial advice, signed by the accountant, stated that the advice had been given to the borrower entirely independently of the guarantor. It contained no substantive information about the borrower, the guarantor, or the transaction.[348]
6. The trial judge found that the guarantor's indebtedness to the lenders had been procured by unconscionable conduct on the part of their agent, which was attributable to them.[349] This conduct was found to be contrary to equitable principle and to the provision in the Australian Securities and Investments Commission Act 2001 (Cth) which is equivalent to s 21 of the ACL. The Court of Appeal of the Supreme Court of Victoria overturned the trial judge's decision, concluding that the evidence could not support a finding of unconscionable conduct attributable to the respondents.[350]
7. On appeal to the High Court, the lenders argued that there was nothing inherently unconscionable about asset‑based lending insofar as it involved lending on the value of the assets that secure the loan without any reliance upon the borrower's ability to repay the loan from his or her income or other assets.[351] The guarantor conceded that general proposition, but contended that, on the unchallenged findings of fact made by the trial judge, the loans to the company and the guarantee were effected in circumstances which made the enforcement of the respondents' rights against the appellant unconscionable.
8. The High Court upheld the appeal. The appeal turned on the extent of the lender's agent's knowledge of the guarantor's circumstances and whether the agent exploited that disadvantage.[352]
9. The plurality held:[353]

[5] The appellant's lack of commercial understanding coupled with his inability to repay the loans from his own income or other assets meant that default in repayment, and the consequent loss by the appellant of his equity in his properties by way of interest payments to the respondents, were inevitable as a matter of objective fact. The respondents, through their agent, sufficiently appreciated that reality that the exercise of their rights under the mortgages to turn the appellant's disadvantages to their own profit was unconscionable. Equitable intervention was justified in this case 'not merely to relieve the [appellant] from the consequences of his own foolishness ... [but] to prevent his victimisation'. (footnotes omitted)

1. In the circumstances of that case, the High Court viewed the conduct of the lenders (through their agent) as amounting to an unconscientious taking advantage of the special disadvantage of the guarantor, involving a lack of assistance or explanation where that was necessary.[354] Further, the plurality concluded that:

[43] The inevitable outcome of the transaction was, objectively speaking, that the appellant's equity in his properties would be taken by the respondents by way of interest payments, including at default interest rates. The dangerous nature of the loans, obvious to [the agent] but not to the appellant, was central to the question whether the appellant's special disadvantage had been exploited by the respondents.

1. We did not understand the parties to disagree as to the principles relevant to an assessment of unconscionability. Nor is it contended that his Honour misunderstood those principles, which he summarised at [486] to [492] of the Primary Reasons. It is the application of the principles to the facts which brings disagreement in the present case.

1. Insofar as this ground challenges the Primary Decision on the basis that no reasons were given for the finding of unconscionable conduct in respect of the Deeds of Loan, that has effectively been addressed above in our reasons concerning the fourth ground. The Primary Judge made a series of detailed findings of fact and gave comprehensive reasons in this respect. The appellants' criticisms in this regard cannot be accepted.
2. That essentially leaves the appellants' broad challenge to the ultimate finding of the Primary Judge that this particular conduct was unconscionable. This finding is said to amount to an 'error of law'.[355]
3. A conclusion as to whether certain conduct answers the statutory concept of unconscionable conduct is evaluative in character. The assessment in this regard gives rise to a unique outcome, rather than a range of outcomes. Accordingly, the Primary Judge's conclusion on this issue attracts the correctness standard of appellate review,[356] rather than the House v The King[357] standard applicable to the exercise of judicial discretions.
4. The correctness standard requires this Court to proceed as follows:[358]

The duty of the appellate court is to decide the case ‑ the facts as well as the law ‑ for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.

1. We have mentioned more than once in these reasons that the Primary Judge made a number of adverse findings as to the credibility and reliability of the witnesses. Critically, for the purposes of this ground of appeal, the Primary Judge disbelieved the evidence of Mr Sampey in relation to various matters concerning the Deeds of Loan and the surrounding conduct.[359] In particular, Mr Sampey maintained in his evidence at trial that the overall transaction was a sale transaction. Objectively, the transaction was a loan arrangement, as was understood by Mr Doherty and Mr Norris. The appellants have not submitted on this appeal that the Primary Judge misused the advantage he enjoyed in seeing and hearing the witnesses (including Mr Sampey) give their evidence, and in forming conclusions in relation to their credit.
2. Further, we have already extracted in these reasons the findings made by the Primary Judge that bear upon the conclusion that the conduct of Mr Sampey and Mr Wake was relevantly unconscionable contrary to s 21 of the ACL. See [126] to [129] and [331] above. It is unnecessary to repeat them in full. It is sufficient to briefly recall the key findings which, in our view, provide strong support for the Primary Judge's conclusion and which demonstrate this ground of appeal is without merit.
3. The key findings may be summarised in the following manner:

(a) First, Mr Doherty and Mr Norris, together with Fanfare itself, were in difficult financial circumstances at the time. It was unlikely that the Fanfare business would generate sufficient profits to enable the loans to be repaid within two years (absent a sale of the properties by the partnership).[360]

(b) Second, Mr Sampey well knew of the difficult financial position of Mr Doherty, Mr Norris and Fanfare. He knew that Fanfare had been losing money for some years. He knew that Fanfare was the primary source of income, if not the only source of income, of Mr Doherty and Mr Norris. He knew that Mr Doherty and Mr Norris were already indebted to the trustees of the Sampey Super Fund for $200,000.[361]

(c) Third, an element of trust was apparent between Mr Doherty and Mr Norris, towards Mr Sampey. Those men at times acted on Mr Sampey's advice. They had been in partnership together since December 2003. Mr Sampey was the accountant for the Fanfare business run by Mr Doherty and Mr Norris, and in certain respects was the accountant for their trusts. Mr Sampey was responsible for the financial arrangements for the partnership and maintained the trust account for the partnership.[362]

(d) Fourth, Mr Sampey did not offer any business or financial advice in relation to the loan and he took no steps to obtain a valuation of the properties, yet he must have appreciated the values he presented to Mr Doherty and Mr Norris were well below the likely valuation.[363]

(e) Fifth, the Deeds of Loan were simply presented to Mr Doherty and Mr Norris to sign, without any opportunity to consider them or take advice.[364]

(f) Sixth, the Primary Judge fundamentally rejected the evidence of Mr Sampey that the underlying agreement between the parties was for the sale of the two properties. Mr Doherty and Mr Norris signed the transfers and the sale agreements by way of security for the advances. The transactions were loans, not sales.[365]

(g) Seventh, Mr Sampey and Mr Wake lodged the transfers which had been signed by Mr Doherty and Mr Norris within about seven or eight months of them being signed. However, Mr Sampey and Mr Wake were found to have had no entitlement under any agreement to lodge the transfers. The interest acquired by Mr Sampey and Mr Wake was confined to a security interest only and to the extent to which there was any enforceable agreement to the contrary, transfer of the properties was permitted only after two years.[366]

1. With respect, the conclusion of the Primary Judge that the conduct of Mr Sampey and Mr Wake offended conscience was entirely correct. As the respondents accurately submit, the overall transaction 'was, and was intended by [Mr Sampey and Mr Wake] to be, a true sale of those assets at an undervalue, at no risk to them'.[367]
2. The thrust of the appellants' submissions, as we apprehend them, is to invite this Court to separately examine, in isolation from the entire course of conduct, the individual instruments and transactions which were considered by the Primary Judge. The appellants' suggested approach runs counter to the accepted and orthodox approach in this area, which requires a precise examination of the particular facts by reference to 'every connected circumstance', with appropriate scrutiny of the 'exact relations established between the parties'. This type of holistic analysis is essential given the nature of conduct which may answer the description of being unconscionable.
3. So, to examine the terms of the Deeds of Loan in isolation would be to ignore the potential interaction between those instruments and the later instruments executed by Mr Doherty and Mr Norris. It assumes, wrongly, that the analysis is confined to a search for harsh contractual terms or uncommercial clauses. The task is plainly wider, and more involved than that.
4. On the facts as found by the Primary Judge, the Deeds of Loan essentially initiated a process which led to the later instruments being executed, and which ultimately led to the loss of Mr Doherty and Mr Norris' interests in the two properties. The Deeds of Loan were characterised on the respondents' case as the 'drivers' for that which followed, or the 'first step'.[368] We accept that characterisation as accurate, given the findings made by the Primary Judge.
5. Importantly, the findings of the Primary Judge support the characterisation of this transaction as an example of 'asset‑lending'. That is not sufficient, on its own, to warrant the conclusion that the conduct in relation to the Deeds of Loan was unconscionable. More is required. The ultimate conclusion that the conduct was unconscionable is, however, justified by the additional matters which we have identified above, when taken in combination, and which were found to be established by the Primary Judge, including as to the closeness of the relationship between these parties, and the knowledge which Mr Sampey (and also Mr Wake) had acquired as to the financial position of Fanfare.
6. The necessary element of unconscientious exploitation or coercion is apparent on these findings, it being apparent that Mr Sampey (and with him, Mr Wake) were seeking to, and did, take advantage of the vulnerable position in which Mr Doherty and Mr Norris found themselves.
7. In circumstances not so dissimilar to those which transpired in Stubbings v Jams 2 Pty Ltd, Mr Sampey (and Mr Wake) took the opportunity to exploit the respondents' distressed financial circumstances to deprive them of their equity in these two valuable properties.
8. In our view, no material error of law has been demonstrated in respect of the unconscionable conduct finding concerning the Deeds of Loan. The appellants' challenge to the relevant conclusion and findings is, in substance, little more than an assertion that the Primary Judge should have arrived at a different conclusion. There is no basis for interfering with the assessment of the relevant facts and circumstances made by the Primary Judge below.
9. We would dismiss this ground of appeal.

1. For the foregoing reasons, we would dismiss grounds of appeal 1, 2, 4 and 5, and we would allow ground of appeal 3.
2. However, in respect of the third ground, we would ultimately reach the same conclusion as the Primary Judge that the defence should be rejected.
3. We would hear from counsel as to the appropriate orders which should now be made in relation to the appeal including as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[2] The trial itself was interrupted by the public health measures introduced as a result of the COVID‑19 pandemic, and so it was necessary to fragment the hearing days over the period from mid-January 2021 through to early April 2021.

[3] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679.

[4] Lee v Lee [2019] HCA 28; (2019) 266 CLR 129.

[5] In a factual sense, Mrs Doherty, Mrs Sampey and Mrs Wake played very minor roles in the events that ensued between 2003 and 2012. It will only be necessary to mention them in these reasons in brief terms.

[6] The property at 707‑709 Albany Highway was often referred to by the parties as the Fanfare Premises.

[7] The initials of the partnership name, MDN, appear to reflect the roles played by The Mustang Unit Trust (in respect of which Mr Sampey and Mr Wake were trustees), Mr Doherty and Mr Norris.

[8] Primary Reasons [142] and [143] (which commence at BAB 4).

[9] Competition and Consumer Law Act 2010 (Cth) sch 2 (ACL).

[10] Doherty v Bruce Ronald Sampey as administrator of the estate of Patricia Adele Addison (aka Sampey) [2023] WASC 10 (Allanson J).

[11] Primary Reasons [157] ‑ [158].

[12] Primary Reasons [158] ‑ [159].

[15] Primary Reasons [186] ‑ [187].

[17] Primary Reasons [160] ‑ [161].

[18] See paras [27], [28] and [31] below regarding timing.

[19] Primary Reasons [142] ‑ [144].

[22] Primary Reasons [169] ‑ [172].

[23] Primary Reasons [173] and [176] ‑ [177].

[32] Primary Reasons [558] ‑ [560].

[34] Primary Reasons [143] ‑ [144].

[43] Primary Reasons [65] and [71].

[50] Primary Reasons [111] and [403].

[51] Primary Reasons [112] ‑ [114].

[52] Further Re‑Amended Statement of Claim dated 20 January 2021, [15] and [16] (which commences at BAB 134) (Statement of claim).

[53] Plaintiffs' Amended Outline of Submissions at trial dated 14 January 2021 [6] ‑ [13] (Plaintiffs' opening trial submissions).

[54] Plaintiffs' opening trial submissions [14] to [15], which list 15 categories of documents relied upon by the respondents to demonstrate the existence of a partnership, and [16] and [17], which list 7 categories of documents relied upon by the respondents to demonstrate the business of the partnership was property investment and leasing.

[55] Amended Substituted Defence dated 28 January 2021 [12] (which commences at BAB 167) (Defence).

[56] Appellants' appeal submissions [16] ‑ [18] (which commences at WAB 15), and Defence [12].

[57] Appellants' appeal submissions [16] ‑ [18], and Defence [12.8].

[59] Defence [16], and Primary Reasons [189].

[62] Statement of claim [24] ‑ [27].

[66] Primary Reasons [134] ‑ [146].

[67] Primary Reasons [134] and [136].

[69] The primary judge declared that the partnership be dissolved as from 7 August 2015, to be wound up under the direction of the court.

[71] Primary Reasons [135], citing Bryant Bros v Thiele [1923] SAStRp 32; [1923] SASR 393, 401 and Rosselli v Rosselli [2007] VSC 414 [39].

[76] Primary Reasons [138] and Exhibit 1.31.

[77] Primary Reasons [139] and Exhibits 1.95 (Partnership tax return ‑ GAB 46), 384 and 488.

[78] Primary Reasons [139] and Exhibit 1.271.

[79] Primary Reasons [140] and Exhibit 1.1009.

[80] Primary Reasons [140] and Exhibits 1.41, 1.64, 1.94, and 1.383.

[81] Primary Reasons [141], citing Chan v Zacharia [1984] HCA 36; (1984) 154 CLR 178, 196.

[82] Murdoch v Mudgee Dolomite and Lime Pty Ltd (in liq) [2022] NSWCA 12; (2022) 398 ALR 658 [81] (Leeming JA, with whom Mcfarlan and Gleeson JJA agreed).

[83] Birtchnell v Equity Trustees, Executors and Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384, 408 (Dixon J).

[84] Howard v Federal Commissioner of Taxation [2014] HCA 21; (2014) 253 CLR 83 [34] (French CJ and Keane J).

[85] Primary Reasons [142] ‑ [144].

[93] That evidence is detailed in the Plaintiffs' opening trial submissions [17].

[94] Exhibit 1.31, 460 ‑ 467; and Plaintiffs' opening trial submissions [17.1].

[95] Exhibit 1.31, 424 and Plaintiffs' opening trial submissions [17.2].

[96] Exhibit 1.41, 522 and Exhibit 1.64, 633, for example, and Plaintiffs' opening trial submissions [17.3].

[97] Exhibit 1.42, 527 and Exhibit 1.65, 639, for example, and Plaintiffs' opening trial submissions [17.7].

[98] Exhibit 1.95, 865 and Exhibit 1.165, 1331, for example, and Plaintiffs' opening trial submissions [17.7].

[103] Primary Reasons [563] and orders 1, 2 and 6 ‑ 8 of the orders made by the Primary Judge on 25 January 2023, BAB 2 ‑ 3.

[105] Statement of claim [106] ‑ [111].

[106] Statement of claim [112] ‑ [117].

[107] Statement of claim [87.1], [107.1], and [111], for example.

[108] Primary Reasons [481] and [482].

[109] Statement of claim [70] ‑ [81] (as to the events commencing in mid-2011) and [82] ‑ [104] (as to the events in late 2011 and 2012). The allegations of unconscionable conduct are then pleaded at [105] ‑ [118].

[123] Statement of claim [105] ‑ [118].

[126] Statement of claim [82A], [105] and [109].

[127] Appellants' appeal submissions [88].

[138] Primary Reasons [403] and [426].

[141] Citing Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [114] and Unique International College Pty Ltd v Australian Competition and Consumer Commission [2018] FCAFC 155; (2018) 266 FCR 631 [104].

[142] Primary Reasons [403], [426], [427] and [503].

[163] WAB 37 (being the orders made on 25 January 2023) and WAB 119 ‑ 120 (being the orders made on 7 February 2023).

[164] Order 2 is the declaration that the property at 716 Albany Highway was an asset of the MDN Partnership from 15 March 2004.

[165] Order 3 is the order by which the terms of the Deeds of Loan were varied.

[166] Order 9(a) is the order which directed that the account be based on orders 2, 4, 5 and 6.

[167] Order 1 is an order identifying the portions of the action in respect of which the plaintiffs were obliged to pay the first and second defendants' costs.

[171] Appellants' appeal submissions [8].

[173] Appellants' appeal submissions [7].

[178] Appellants' appeal submissions [16].

[179] Appellants' appeal submissions [17] and [31].

[180] Appellants' appeal submissions [27].

[182] Murdoch v Mudgee Dolomite and Lime Pty Ltd (in liq) [109] (Leeming JA, with whom Mcfarlan and Gleeson JJA agreed).

[183] Respondents' appeal submissions [1].

[184] Respondents' appeal submissions [2] ‑ [8].

[185] Respondents' appeal submissions [13].

[186] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [25] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott [43].

[187] Primary Reasons [138] ‑ [140].

[188] Plaintiffs' opening trial Submissions [16].

[191] Appellants' appeal submissions [7].

[192] Appellants' appeal submissions [8].

[193] Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41, 96 ‑ 97 (Mason J). The Primary Judge referred to Mason J's decision, as well as to the subsequent decision of the High Court in Pilmer v Duke Group Ltd [2001] HCA 31; (2001) 207 CLR 165, 196 ‑ 197 to a similar effect.

[194] Phelan v. Middle States Oil Corporation [1955] USCA2 324; (1955) 220 F 2d 593, 602-603.

[195] Murdoch v Mudgee Dolomite and Lime Pty Ltd (in liq) [81].

[196] Primary Reasons [142] and [143].

[204] Appellants' appeal submissions [29] ‑ [33].

[207] Appeal Ground 2, [4]; and Appellants' appeal submissions [37].

[208] Appellants' appeal submissions [38].

[213] WAB 38 ‑ 43. The respondents' comments on the schedule are at WAB 64 ‑ 73.

[214] Respondents' appeal submissions [15] and [16].

[215] Respondents' appeal submissions [27] ‑ [30].

[216] Leeder v The State of Western Australia [2008] WASCA 192 [84] (Newnes JA, Buss JA (as his Honour then was) and Miller JA agreeing). See also Nankivell v Insurance Commission of Western Australia [2017] WASCA 143; (2017) 81 MVR 24 [44] (Buss P, Mitchell and Beech JJA agreeing).

[217] Joyce v Anderson [2020] WASCA 48; (2020) 91 MVR 334 [205] ‑ [211] (Beech and Vaughan JJA).

[218] Wright v Lemon [2024] WASCA 19 [327] (Buss P).

[224] Appellants' appeal submissions [43] ‑ [51].

[225] Ex 1.64, p 637; Ex 1.94, p 863; and Ex 1.164, p 1324.

[226] Respondents' appeal submissions [18] ‑ [21].

[227] Appellants' appeal submissions [46].

[228] Respondents' appeal submissions [21] ‑ [28].

[229] Ex 1.1009, p 12567; and Ex 1.1009, p 12586.

[230] Respondents' appeal submissions [27] and [28].

[235] Primary Reasons [558] ‑ [560].

[238] Appellants' appeal submissions [65].

[240] Briggs v Lunt [No 3] [2011] WASCA 44 (Pullin, Newnes and Murphy JJA) (Briggs).

[241] Appellants' appeal submissions [34].

[242] Appellants' appeal submissions [35].

[243] Appellants' appeal submissions [36] and Appeal ts 66.

[245] Respondents' opening trial submissions dated 14 January 2021 [48] ‑ [53].

[246] Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654 [163] (Young JA, Allsop P and Macfarlan JA agreeing).

[248] Relying on Streeter v Western Areas [No. 2] [2011] WASCA 17; (2011) 278 ALR 291 [635] (Murphy JA, with McLure P and Buss JA (as his Honour then was) agreeing at [5] and [97] respectively).

[250] Appellants' appeal submissions [57] ‑ [63].

[252] Appellants' appeal submissions [66].

[253] Appellants' appeal submissions [67.3].

[254] Lindsay Petroleum Co v Hurd (1874) LR 5 CP 221, 239 ‑ 240.

[255] Appellants' appeal submissions [39].

[256] Appellants' appeal submissions [40] ‑ [41].

[257] Appellants' appeal submissions [42] ‑ [43].

[260] Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287 (McLure P, Pullin and Buss JJA) (Southern Properties).

[261] Southern Properties [324] (Pullin JA). See also [115] (McLure P agreeing) and [335] ‑ [336] (Buss JA agreeing with McLure P).

[262] Siegwerk Australia Pty Ltd (In Liquidation) v Nuplex Industries (Aust) Pty Ltd [2013] FCAFC 130; (2013) 305 ALR 412 (Perram, Dodds‑Streeton and Robertson JJ) (Siegwerk Australia).

[263] Siegwerk Australia [97] ‑ [105] (Robertson J), with Perram J agreeing with Robertson J at [75] and Dodds‑Streeton J agreeing with both Perram and Robertson JJ at [79].

[264] Siegwerk Australia [85] ‑ [91] (Robertson J).

[265] Siegwerk Australia [100] (Robertson J).

[266] Appellants' appeal submissions [67.2].

[267] Savage v Lunn [1998] NSWCA 203; Halford v Halford [2022] WASCA 1; (2022) 58 WAR 254 [142] (Quinlan CJ, Murphy JA and Tottle J).

[268] JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane's Equity: Doctrine and Remedies (LexisNexis, 5th ed, 2015), [38-005].

[269] Erlanger v New Sombrero Phosphate Co (1878) 3 App Cas 1218; [1874-80] All ER Rep 271.

[270] Erlanger v New Sombrero Phosphate Co 1279 (Lord Blackburn).

[275] Halford v Halford [147], referring to Nowell v Palmer [1993] NSWCA 199; (1993) 32 NSWLR 574, 580.

[277] Wright v Lemon [660] ‑ [674] (Buss P, Vaughan and Hall JJA agreeing).

[280] Hourigan v Trustees Executors & Agency Co Ltd [1934] HCA 25; (1934) 51 CLR 619, 651 (Dixon J).

[281] Halford v Halford [147], referring to Fysh v Page [1956] HCA 13; (1956) 96 CLR 233, 243 ‑ 244.

[282] Orr v Ford [1989] HCA 4; (1989) 167 CLR 316, 341 (Deane J).

[283] Halford v Halford [147], referring to the statements in Lindsay Petroleum (239 ‑ 240).

[284] Crawley v Short [176] ‑ [179] (Young JA, Allsop P and Macfarlan JA agreeing).

[285] Crawley v Short [179] (Young JA).

[286] JD Heydon, MJ Leeming, PG Turner, Meagher, Gummow & Lehane's Equity: Doctrine and Remedies (LexisNexis, 5th ed, 2015), [38 ‑ 055].

[287] Fisher v Brooker [2009] UKHL 41; [2009] 4 All ER 789; [2009] 1 WLR 1764.

[288] Fitzgerald v Masters [1956] HCA 53; (1956) 95 CLR 420.

[289] Hourigan v The Trustees Executors and Agency Company Limited (651) (Dixon J).

[290] Appellants' appeal submissions [71] ‑ [73] and [77]; Primary Reasons [517(1)] and [517(2)].

[292] Appellants' appeal submissions [76].

[293] Respondents' appeal submissions [44].

[294] Respondents' appeal submissions [44] ‑ [50].

[300] Primary Reasons [501] and [507].

[312] Primary Reasons [554] and [555].

[314] Statement of Claim [70] ‑ [104], especially [83], [84], [87] and [92].

[318] Ex 1.652; and see para [101] above.

[319] Ex 1.674; and see para [104] above.

[320] Primary Reasons [406], [408], [409], [411], [413], [414], [425] and [426].

[321] Primary Reasons [517] (chapeau).

[322] Appeal ground 5, [8]. The ground does not challenge the terms of the relief granted: Appeal ts 70.

[323] Appellants' appeal submissions [91].

[324] Appellants' appeal submissions [77].

[325] Appellants' appeal submissions [88].

[326] Appellants' appeal submissions [90].

[327] Appellants' appeal submissions [90].

[328] Appellants' appeal submissions [90].

[329] Appellants' appeal submissions [91].

[330] Appellants' appeal submissions [91].

[331] Respondents' appeal submissions [52]; and Respondents' PD 7.4 Schedule.

[334] Respondents' appeal submissions [55].

[335] Respondents' appeal submissions [58], citing Australian Securities and Investments Commission v Kobelt [2019] HCA 18; (2019) 267 CLR 1 [92].

[336] Respondents' appeal submissions [66].

[338] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2022] WASCA 26 [114] (Buss P, Beech and Vaughan JJA).

[339] Gunn v Meiners [2022] WASCA 95 [147] (Mitchell, Beech and Vaughan JJA).

[340] Australian Securities and Investments Commission v Kobelt [91] ‑ [93] (Gageler J).

[341] Productivity Partners Pty Ltd (trading as Captain Cook College) v Australian Competition and Consumer Commission [2023] FCAFC 54; (2023) 27 FCR 180 [161(d)], referring to Paciocco v Australian and New Zealand Banking Group Ltd [2015] FCAFC 50; (2015) 236 FCR 199 [262] (Allsop CJ) (affirmed in the High Court).

[342] Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 [38].

[343] Stubbings v Jams 2 Pty Ltd [2022] HCA 6; (2022) 276 CLR 1.

[344] Stubbings v Jams 2 Pty Ltd [1] (Kiefel CJ, Keane and Gleeson JJ).

[345] Stubbings v Jams 2 Pty Ltd [1] (Kiefel CJ, Keane and Gleeson JJ).

[346] Stubbings v Jams 2 Pty Ltd [101] (Steward J).

[347] Stubbings v Jams 2 Pty Ltd [97] (Steward J).

[348] Stubbings v Jams 2 Pty Ltd [74] (Gordon J).

[349] Stubbings v Jams 2 Pty Ltd [3] (Kiefel CJ, Keane and Gleeson JJ).

[350] Jams 2 Pty Ltd v Stubbings [2020] VSCA 200 [126] ‑ [135] (Beach, Kyrou and Hargrave JJA)

[351] Stubbings v Jams 2 Pty Ltd [4] (Kiefel CJ, Keane and Gleeson JJ).

[352] Stubbings v Jams 2 Pty Ltd [42] (Kiefel CJ, Keane and Gleeson JJ).

[353] Stubbings v Jams 2 Pty Ltd [1] (Kiefel CJ, Keane and Gleeson JJ). Gordon and Steward JJ similarly allowed the appeal, for the reasons explained in their separate judgments, at [95] and [174].

[354] Stubbings v Jams 2 Pty Ltd [40] ‑ [42] (Kiefel CJ, Keane and Gleeson JJ); and [94] (Gordon J).

[355] Appellants' appeal submissions [77].

[356] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 552; Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [2003] HCA 18; (2003) 214 CLR 51 [162]; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541 [46] ‑ [49] (Gageler J); Australian Securities and Investments Commission v Kobelt [47] (Kiefel CJ and Bell J); Lowe Pty Ltd v Belgravia [2020] WASCA 180 [215]; Shannon v Permanent Custodians Limited [2020] WASCA 198 [160] (Quinlan CJ and Tottle J).

[357] House v The King [1936] HCA 40; (1936) 55 CLR 499.

[359] Primary Reasons [111], [403] and [426].

[361] Primary Reasons [508] and [510].

[362] Primary Reasons [501] and [507].

[363] Primary Reasons [501] and [512].

[367] Respondents' appeal submissions [62].

[368] Respondents' appeal submissions [55] and Appeal ts 69.