Storm Industries Pty Ltd trading as trustee of the T&L Trust v Unicar Australia Pty Ltd

FACTUAL BACKGROUND

1. Most of the following factual background is reflected in a (substantially) agreed chronology [1] or the documents put before the Court [2] . Differences in the witnesses' recollections will be identified in the account of the evidence that is to follow.
2. In 2014, Mr Burns met Mr Tsingolis. Mr Tsingolis was a promoter of the entity that came to be incorporated, Unicar. They socialised together and became friends. Mr Burns was a man in his early 30s, of an athletic build and had spent time at an American college. He was reared (especially by his grandmother) in a wealthy Sydney family. Mr Tsingolis was an experienced businessman involved in property developments across the eastern seaboard but particularly in Queensland. Mr Radcliff was his personal lawyer during the period concerned in this proceeding. In the same year, Mr Burns met Mr Radcliff, (who eventually became) the general counsel of Unicar.
3. During 2016, Mr Tsingolis allegedly explained to Mr Burns that he was developing a ride sharing business for which he was looking for seed capital investment. Back in January 2016, Mr Radcliffe alleges that he entered into an agreement whereby he would provide legal services in exchange for share capital (in lieu of fees, where his charge out rate was $500 per hour) in the proposed business.
4. In July 2016, Mr Radcliff says that he met with Mr Tsingolis and Mr Aiden Quig. He says Mr Tsingolis recognised that his time and effort should be compensated for by shares in Unicar.
5. Late in 2016, Mr Tsingolis visited Mr Burns at his home and told him that he was working on the ride sharing idea involving university students as drivers. In November, Mr Tsingolis and Mr Radcliff meet with Mr Aiden Quig and representatives from Volkswagen to discuss the possibility of a business relationship whereby Volkswagen may provide vehicles to Unicar at reduced prices.
6. By early November 2016, Ms Jacqueline Scott (Mr Tsingolis' partner) set out, in an internal document, some aspects of what was required to establish the business. Specifically, this included a need to construct an 'App', a requirement which she thought would cost approximately $120,000.
7. An Information Memorandum (IM), prepared by Mr Radcliff in July 2016, was in evidence. There was no suggestion that Mr Burns was aware of its content prior to making his investment. Senior Counsel for Storm relied upon the document, amongst other reasons, to support his client's case of non-disclosure as well as general background. The IM relevantly set out projected sources of revenue, including student rents to the fleet of vehicles purchased by the entity, commission on sales which the entity would take once a student had driven a passenger and advertising. The internal document envisaged a capital raising of $40 million, with an issue price of $1.10 per share. It also listed, as part of the management team, Mr Tsingolis, Mr Radcliff (General counsel) and Mr Aiden Quig (App & IT developer). It also listed Mr Radcliff's law firm as the entity's lawyers.
8. As to its proposed form, at that point, the IM foreshadowed that the entity would be an unlisted public company limited by shares; which would be allocated in the proportions of 70% for the Chairman (Mr Tsingolis' company) and 30% for investors. It was to be managed by Mr Radcliff, Mr Tsingolis and Ms Scott.
9. The IM recognised the existence of and sought to manage several conflicts of interest: Mr Radcliff, the entity's proposed General Counsel, was also a director of a law firm. Mr Tsingolis was the owner of the licensor of the 'ride sharing platform' (in which Mr Radcliff also held an interest). The reference to the licensor was to a Singaporean entity, Aurlev Holding Pte Ltd (UEN 201617443Z). A deed of 30 July 2016 (backdated after Unicar was incorporated) was in evidence. The effect of the licensing arrangement, as Senior Counsel for Storm put it, was to entitle this offshore entity to receive 5% for every dollar earned through the exploitation of the license to the technology platform. The IM indicated that the Board may use equity in the company (up to 2%) to remunerate its advisers.
10. On 21 November 2016, Unicar was incorporated. Its directors were Mr Tsingolis and Ms Scott, although Ms Scott ceased to be a director within a matter of months. Its sole shareholder at the point of incorporation was a corporate entity associated with Mr Tsingolis (Aurlev - the Australian subsidiary of the Singapore company Aurlev Holding Pte Ltd), which held 60 million shares. There is a dispute whether those shares were fully paid.
11. Later that month, Mr Radcliff alleges that he and Mr Tsingolis agreed that he would receive 10% of the equity in Unicar as compensation for the legal work he had provided (and would provide) in lieu of his charging for legal fees. Such agreement was only verbal.
12. By December 2016, a business plan for Unicar was developed. Part of that contemplated a capital raising. At this point, the plan envisaged interests associated with Mr Tsingolis and Ms Scott owned about 70% of the shares.
13. In February 2017, Mr Tsingolis told Mr Burns that he was proceeding with the ride sharing business as a start-up and was looking for investors. Mr Tsingolis invited Mr Burns to attend a presentation for prospective investors.
14. Before the presentation, on 10 February 2017, Mr Radcliff says that Mr Tsingolis asked him to prepare a single page 'investment opportunity' document. There is a dispute as to whether this document was provided to Mr Burns on the boat, or at any subsequent time. Mr Burns says he did not receive it. The document set out certain information including Unicar's business model, the membership structure and proposed use of investment funds.
15. On 23 February 2017, the investor presentation occurred on a luxury boat owned by Mr Tsingolis, which was berthed near the Star Casino at Pyrmont Bay. Mr Burns attended a presentation by Mr Radcliff. The presentation occurred in the presence of other potential investors in Unicar. At certain points, Mr Tsingolis was not in attendance. This will be elaborated later. Amongst other things, Mr Burns alleges that Mr Radcliff emphasised that invitation was being extended to him to invest first round seed capital in the company at 'ground level prices'. Mr Burns says he took this to mean the prices that the original investors had paid, or would pay, for their shares. Mr Burns says he was not supplied with any documentary material during or after the presentation.
16. According to Mr Burns, shortly after the presentation, on the same day, Mr Tsingolis indicated that he had already invested the sum of $600,000 in Unicar through his use of a corporate entity (Aurlev) managed and substantially controlled by him. Mr Burns says that the circumstance that Mr Tsingolis represented that he had 'skin in the game' was important to him deciding to invest.
17. Mr Burns pleads that on the basis of what was said during or after the presentation, whilst on the boat Mr Tsingolis had made several express and verbal representations. The representations were, essentially: first, that other persons had already agreed to invest amounts of $100,000 in Unicar; secondly, that if he invested in Unicar, Mr Burns could acquire his shares at the same price as that which had been paid by Mr Tsingolis himself (and/or other investors) and/or the same (pro rata) shares which Mr Tsingolis had received for his $600,000 investment. These representations are denied. Mr Burns says that the representation which he alleges was made about other investors agreeing to invest $100,000 was also important to him.
18. On 1 March 2017, Mr Burns received an email from Mr Radcliff in which the latter asked him if he (Mr Burns) was keen to proceed with the investment and invited an indication from him as to how much he might invest (and the form of it), whilst indicating that 'we are meeting with an investor next week who will likely take out the remaining seed investment round available.' Senior Counsel for Mr Burns says that this was false: no other investor had put money in and this statement amounted to a pressure tactic to induce Mr Burns to make a quick decision to invest by conveying that it was likely that the other investor might scoop whatever shares for the seed round were available.
19. Mr Burns responded to this email by indicating an interest in investing $100,000 whilst saying that he would be meeting with his accountant and bank. There followed some correspondence about the form of the investment. Mr Burns asked Mr Radcliff how the investment would work and said he would let you know when he had cleared accountancy and banking.
20. In about the middle of March 2017, Mr Burns met with his accountant (Mr Hawkins), who discussed with him different investment structures. Mr Hawkins clarified that he could not give him investment, legal or financial advice.
21. Mr Radcliff penned a handwritten on 3 April 2017 which, it was said, indicated Mr Radcliff's awareness of Mr Burns' prospective contribution, his prospective share price ($0.50) and the proportions of the capital which other investors would acquire, as was contemplated at that point. The same note recorded a reference of $1.00 as the prospective share offer price to Damian Yates. (There was a reference of $0.80 to another person, referred to in the note as 'Paul C'). Mr Radcliff said in his evidence that, as far as he was concerned, any differential in share price to be paid by potential investors was a matter for Mr Tsingolis' discretion.
22. On 4 April 2017 Mr Burns and Mr Radcliff exchanged emails in which the former asked the latter what the next steps were and provided Mr Radcliff with details of Storm and the T&L Trust. He informed Mr Radcliff that he was looking to invest "2-3 hundred" (i.e. thousand).
23. On 5 April 2017, Mr Burns and Mr Tsingolis spoke on the telephone. Mr Burns alleges that he informed Mr Tsingolis that he was aiming to invest $300,000 through Storm and that Mr Tsingolis had informed him (Mr Burns) that the investment price per share have gone up however he would "honour our original offer that other investors had received that anyone investing after you, including Corey (Radcliff) and his mates, will be paying double".
24. On 6 April 2017, Mr Radcliff emailed Mr Burns attaching a draft share issue agreement, pursuant to which Mr Burns was to pay $300,000 in consideration for 600,000 shares in Unicar, being a price of $0.50 per share. At this time the only other shareholder in Unicar was Aurlev. The price per share offered to Mr Burns was more than 50 times the price ($0.01 per share) which the ASIC records indicates was paid by Aurlev for its shares. There is a dispute as to whether Aurlev did in fact pay the amount which is recorded in ASIC's records. Mr Burns says that at the time Mr Radcliff sent this, he knew that 15 million shares would soon be issued by Unicar to other investors. Notwithstanding this, Mr Burns complains that Mr Radcliff did not inform him of this fact. This is an omission relied upon in Storm's case on misleading or deceptive conduct arising from the non-disclosure of information which, it contends, could reasonably have expected would be disclosed.
25. On 13 April 2017, and in response to emails from Mr Burns in which he provided the draft share issue agreement, Mr Hawkins provided advice to Mr Burns; which was to the effect that although he would look at the document from an 'accounting/tax perspective', Mr Burns should have a lawyer review the agreement. Mr Hawkins sent a further email to Mr Burns stating, amongst other things, that although the agreement appeared fairly standard, it did not have much to say about the investment. Mr Hawkins attached to the email an ASIC search for Unicar for Mr Burns' information. He also raised a series of questions for Mr Burns to consider. Mr Burns did not however read this ASIC search.
26. On 20 April 2017, Mr Burns sent Mr Radcliff an email stating that he would need longer to gather the cash for his Unicar investment. Mr Burns and Mr Radcliff exchanged other emails that day concerning a proposed date for settlement.
27. On 24 April 2017, Unicar issued 15 million shares, comprising: 6 million shares to Board Engine (an entity in which Mr Radcliff owned half the shares and was one of two directors) for nil dollars; 3 million shares to Ms Christina Quig for nil dollars; 6 million shares to Jacqueline Scott for nil dollars. Mr Burns was not informed about these transactions.
28. An issue in the proceeding is why these other members received the shares for no apparent consideration. The defendants point to the arrangements entered into in which Mr Radcliff, an experienced solicitor, agreed to forego monetary compensation for his services as the lawyer to the start-up entity but received equity in the company instead. Mr Burns questioned this, citing what was contained in the internal IM; which foreshadowed that a relatively modest financial allowance was to be paid to professional service providers; and contending that the value of the shares received, indirectly by Mr Radcliff (through the corporate entity Board Engine) vastly exceeded the monetary compensation anticipated in the IM.
29. On 27 April 2017, Mr Radcliff sent to Mr Burns an updated share issue agreement. The only material change to the agreement was the amendment of the settlement date to 5 May 2017. Senior Counsel for Storm noted that the communication did not disclose the issue of 15 million shares to a range of other investors.
30. On 1 May 2017, several events occurred in quick succession. At about 10:40am that day, Mr Burns emailed Mr Radcliff and stated that he was sending the $300,000 today. Slightly less than an hour later, this sum was transferred into Mr Radcliff's law practice's trust account. Mr Radcliff then asked Mr Burns to print and sign the contract and scan it back to him, which Mr Burns says he would do. At 1:41 pm, after Storm had paid the purchase price, Unicar lodged the relevant form with ASIC recording the additional (15 million) shares issued, on 24 April 2017. Mr Tsingolis was described on the form as the company officer certifying the accuracy of the information. Mr Burns says that the timing for the lodgement of the ASIC form, so closely after Storm had paid its money, was not coincidental but was indicative of an intention to conceal the interests and involvement of other Unicar investors.
31. On 2 May 2017, Mr Burns signed the share issue agreement, scanned it and emailed it to Mr Radcliff. Mr Radcliff then emailed Mr Burns acknowledging receipt of the funds and foreshadowing that he would talk to Mr Tsingolis tomorrow and then would issue Mr Burns his shares.
32. On 30 June 2017, Unicar lodged a form with ASIC recording that on 1 May 2017, 600,000 shares (representing 0.079% of the issued capital) were issued to Storm for the sum of $300,000 (fully paid), being $0.50 per share.
33. Bank statements of account produced during the proceeding revealed that the $300,000 was deposited by Storm into Mr Radcliff's law firm's trust account on 2 May 2017.
34. A large sum (nearly $58,000) was outlaid to pay Mr Radcliff's firm. Another large proportion (just over $77,000) was used to pay the supplier of the App developer. Mr Tsingolis himself was the recipient of $10,000. Unicar received from its lawyers' trust account the total sum of $102,482 in different tranches. The first ($20,000) was on 15 June 2017. The second ($25,000) was paid on 11 July 2017 and the final payment ($57,482) was paid on 14 September 2017. ANZ Bank account statements throughout 2017 for Unicar indicated where the total sum $102,457 went. But first, it is notable that the bank account statements revealed a nil balance as at 1 February 2017. This was, Senior Counsel for Storm noted, contrary to the alleged representation of Mr Tsingolis at about that time that he (or Aurlev) had put in $600,000. Senior Counsel for Storm observed that close examination of the bank statements indicate that Unicar expended a large proportion of the total sum of $102,457 on a range of services (including dining and entertainment) which appeared to be, at most, peripheral to Unicar's main business activities. The amount of $102,457 was fully expended by October 2017.
35. On 28 August 2017, Mr Burns enquired Mr Radcliff whether he would receive any paperwork about the issue of shares. The same day, Mr Radcliff responded in an email to Mr Burns indicating that he was doing some paperwork that week but confirming that the shares were allocated to Storm when Unicar received payment as per the agreement. In the circumstances, however, Mr Burns did not receive any share certificate.
36. In late August 2017, Mr Burns was speaking with his solicitor on other unrelated matters when he mentioned that he had a company and trust which held shares in Unicar and he instructed the solicitor to carry out ASIC searches of that company to establish that shareholding. Those searches were undertaken on 7 September 2017 and it was the result of those searches, and what they indicated about the management and membership of Unicar, which shocked Mr Burns. A few days later, he instructed his solicitor to undertake further ASIC searches.
37. On 19 September 2017, Mr Burns' solicitor sent a letter of demand to the defendants. That set in train the exchange of correspondence over a long period between his solicitor and Mr Radcliff (on his own behalf and on behalf of Mr Tsingolis) featuring many intemperate assertions.
38. The letter of demand sought, amongst other things, information as to what had occurred with Storm's investment.
39. In January 2018, Unicar entered into a Participation Agreement with Volkswagen, by which the latter agreed to supply vehicles to support Unicar's business growth and the development of its business. The agreement included certain milestones in the development of the business.
40. Storm commenced this proceeding in December 2018.

The Plaintiff's Case

1. Storm's case of misleading or deceptive conduct centres firstly, upon express verbal representations. In short, these were: 1. as at February 2017, that Mr Tsingolis represented to Mr Burns that: 1. he had invested $600,000 in Unicar; and 2. that there were other investors who had agreed to invest $100,000 each. 1. as at February 2017, that Mr Tsingolis and/or Mr Radcliff represented to Mr Burns that if he invested in Unicar he would receive his shares at the same price Mr Tsingolis had paid for his shares and/or at the price paid by first round seed capital investors; and/or the same pro rata number of shares which MR Tsingolis had received for his $600,000; 2. on 1 March 2017, Mr Radcliff engaged in misleading or deceptive conduct by representations contained in his email to Mr Burns; 3. on 5 April 2017, Mr Tsingolis further represented that: 1. the seed investment price per share was increasing; 2. Mr Tsingolis would honour (for Mr Burns) the original seed investment offer price per share, so that any investment made by him would be at the same price as all others who had invested to that point in time; and 3. any new investors (including Mr Radcliff and his mates) would pay double that share price.
2. Secondly, Storm argues a case of misleading or deceptive conduct as a result of the non-disclosure of information it says it reasonably expected to receive. Mr Burns says that unbeknownst to him, prior to his making the investment, in late April 2017, Unicar had issued 15 million shares in separate portions to other persons and a corporate entity (Board Engine) for free. Mr Radcliff controlled Board Engine. Mr Burns complains that Mr Radcliff (in addition to Aurlev, Board Engine and the other shareholders of Unicar) had a conflict of interest in encouraging Storm to provide investment capital to Unicar whilst diluting the shares issued by Unicar to Storm so as to preserve their equity. At any rate, by early May 2017, only Storm, amongst Unicar's investors, had paid for its portion of shares (60 million shares at $0.01 per share). Mr Burns complains that the net result was that Storm was in an inferior position vis a vis other Unicar shareholders: it did not receive its shares at the same price as Mr Tsingolis or other original (or first round) seed capital investors; it paid 50 times more for its shares than Aurlev; it had an equity interest of less than 1% of Unicar's issued capital; and had negligible control over the running of Unicar. In short, in the circumstances in which Storm acquired its shareholding in Unicar, it was much worse off than Unicar's other shareholders.
3. In this proceeding, Storm wishes to recoup the $300,000 it invested.

ISSUES

1. The issues are: 1. whether Mr Tsingolis represented to Mr Burns (at the presentation in February 2017) that: 1. he had invested $600,000 in Unicar; 2. there were other investors who had agreed to invest $100,000 each in Unicar; 3. Mr Burns (or his nominated entity) would receive shares at the same price as Mr Tsingolis; 4. Mr Burns could invest seed capital in Unicar at 'ground level prices' (and if so, the meaning of that expression); 5. Mr Burns would receive shares at the same price Mr Tsingolis had paid and/or the same price paid by first round seed capital investors and/or the same pro rata number of shares Mr Tsingolis had received for his ($600,000) investment; 1. whether Mr Radcliff: 1. represented to Mr Burns in February 2017 that Mr Burns could invest seed capital in Unicar at ground level prices (and if so the meaning of that expression); and 2. on 1 March 2017, engaged in misleading or deceptive conduct as a result of what was conveyed in his email of that date; 1. whether Unicar/Mr Tsingolis represented to Mr Burns on or about 5 April 2017 that: 1. in circumstances where the seed investment price per share was increasing, Mr Tsingolis would honour for Mr Burns the original seed investment offer price per share, so that any investment by Mr Burns would be at the same price as all others who had invested at that time; and 2. any new investors after that time (including Radcliff and his 'mates') would pay double that price (the 'Second Seed Capital Representations'); 1. whether any representations made by Messrs Tsingolis and Radcliffe to Mr Burns (as found) were false or misleading; 2. to the extent that the representations related to future matters, whether Mr Tsingolis and/or Mr Radcliffe had any reasonable basis for making them [3] ; 3. whether Mr Tsingolis and/or Mr Radcliffe engaged in misleading or deceptive conduct by omitting to disclose certain matters to Mr Burns before he (through Storm) made his investment, being: 1. prior to 2 May 2017, the only shareholder who had purportedly bought shares in Unicar was Aurlev (which had purportedly paid $600,000 to receive 60 million shares at $0.01 per share); 2. prior to 2 May 2017, Aurlev had not paid $600,000 to receive 60 million shares; 3. 15 million shares in Unicar have been issued to 3 other shareholders on or about 24 April 2017 for nil dollars; 4. in return for Storm's $300,000 investment, it would: 1. not receive its shares in Unicar at the same price as Mr Tsingolis (through Aurlev) had paid; 2. not receive its shares at the price paid by first round seed capital investors; 3. be paying 50 times more than Mr Tsingolis (through Aurlev) had purportedly paid; 4. have an equity interest of less than 1% of the issued share capital in Unicar; 5. have only negligible legal rights to have input into the running or administration of Unicar; and 6. have a shareholding in Unicar which had virtually no voting power and, in substance, no material value; 1. that Messrs Tsingolis and Radcliff (and Aurlev and Board Engine) had a conflict of interest in that while they encouraged Storm to invest in Unicar and to provide working capital for Unicar, it was in their interest that the number of shares fully issued to Storm be kept to a minimum, so as to preserve the equity of Aurlev, Board Engine and other shareholders of Unicar; 1. in November 2016, Mr Tsingolis (on Unicar's behalf) agrees to issue 10% of Unicar's shares to Mr Radcliff for work and contribution to Unicar's business (the 'Omitted Investment Matters'); 1. whether Mr Tsingolis and/or Mr Radcliffe were person(s) 'involved in' Unicar's alleged misleading or deceptive conduct by (a) making the representations; and/or (b) failing to disclose to Mr Burns the Omitted Investment Matters; and 2. the nature of Storm's loss, if any, caused by any misleading or deceptive conduct.

The Appropriate Legal Regime

1. At the outset, I questioned Storm about the applicable statutory regime. Its complaint concerns the circumstances in which it acquired shares in a company, Unicar, induced by alleged misleading or deceptive conduct. It appeared to me that this amounted to the acquisition of a financial product in connection with the supply of a financial service. Ordinarily, the ACL does not apply to financial products and/or to conduct involving the supply of financial services [4] .
2. In response, Storm sought and obtained leave to add an action for contravention of s 1041H of the Corporations Act, which, Storm submitted, the Court had jurisdiction to deal with under s 558AA of the Corporations Act (Storm eschewed any reliance upon s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth)).
3. Storm maintained its action (against the individual defendants) under the Fair Trading Act. The defendants plead in their respective defences that no action arises against any of them under the Fair Trading Act.
4. The present issue is whether the Fair Trading Act applies to this conduct and if so, to which defendants and to what extent it applies federal legislation.
5. The Fair Trading Act would ordinarily apply to individuals. It also applies to corporations [5] .
6. By reason of s 131A(2)(a) of the CC Act, the provisions in the ACL do not apply to conduct engaged in in relation to financial services. Storm argues that by s 131C(1) of the CC Act, this 'carve out' for financial services does not extend to exclude or limit the concurrent operation of state law, which includes the Fair Trading Act. In this, I consider that it is correct. Section 28 of the Fair Trading Act provides that the ACL applies as part of that Act. The Fair Trading Act did not, however, adopt the text of the CC Act (including s 131A(2)(a)).
7. In my view, the Fair Trading Act is potentially applicable for claims against individuals and Unicar for damages for misleading and deceptive conduct in relation to financial services. That is indicated by some authorities drawn to the Court's attention during argument [6] in which the state fair trading legislation was invoked.

Mr Burns

1. Mr Burns prepared two affidavits. In his principal affidavit affirmed on 13 March 2019, Mr Burns deposed to the circumstances and content of the presentation he received in February 2017. Mr Tsingolis had invited him, his accountant or anybody else Mr Burns might wish to join in, to a presentation to potential investors in the ride sharing business during the last week of February. This occurred on a luxury boat named 'Take Two' which was berthed at the wharf in Pyrmont Bay. Mr Burns deposed that at the beginning of a presentation in the middle the morning, he was welcomed by Mr Tsingolis. Other potential investors were present as well as Mr Radcliff, who was described as Unicar's solicitor. Mr Tsingolis left the boat just before the presentation was to commence and left it to Mr Radcliff to deliver it.
2. The presentation was made on a laptop computer. There were PowerPoint slides, an animated video clip advertising Unicar and financial forecasts. Mr Burns deposed that during the presentation, Mr Radcliff made certain statements explaining the concept of Unicar, the relationship with Volkswagen (to supply the fleet of vehicles), the development of the App, and the rights to drivers. One of the attendees (who had earlier been introduced to someone who had managed the Qantas car fleet) indicated that he would be managing the fleet for Unicar. No copies of materials presented were handed out or provided to Mr Burns before, during, or after this presentation.
3. Mr Burns deposed in his first affidavit (paragraph 13(f)) that during the presentation, Mr Radcliff stated, amongst other things, that an "invitation was being made to you to invest in first round seed capital in the company at ground level prices".
4. After this presentation and whilst Mr Burns remained on the boat, he deposed to having a conversation with Mr Tsingolis (who by this stage had returned to the boat) about investment, substantially to the following effect: Burns: "How much are you investing?" Tsingolis: "I have already put in $600,000" Burns: "How much are other investors putting in?" Tsingolis: "$100,000 each" Burns: "If I was to invest in Unicar I would have to use my margin loan accounts to borrow the amount I would invest. I should be able to claim the interest as a tax deduction"
5. Mr Burns was challenged as to his recollections of what occurred, and what was said during the February 2017 meeting, Mr Burns had a clear recollection of the topics that were discussed: there was the concept of Unicar (and how university students would benefit), advertising, when the company would likely break even and technology that would illuminate the good drivers for the company. Under cross-examination, he struggled to give a verbatim account of what was specifically said. Mr Burns denied being shown the one page ('investment opportunity') document [7] which Messrs Radcliff and Tsingolis assert had been prepared in February.
6. When asked to explain the circumstances in which Mr Tsingolis allegedly made his representation about his own shareholding, Mr Burns explained that this had come about by his asking Mr Tsingolis how much he was putting into the company and that he had similarly asked him how much other investors were putting in.
7. Mr Burns accepted in cross-examination that at least after the presentation on the boat - what might be called the business side of the meeting - he had allowed himself to become intoxicated. He also indicated that he was not alone in that respect. Mr Radcliff indicated that he had started to consume alcohol not long after getting on the boat. Mr Burns had stayed on the boat overnight and he told Mr Radcliff that it took him a few days to recover. In re-examination, he said that from past experience, heavy nights out had not previously impaired his ability to recall events from the previous day and he maintained that he recalled the substance of what was said during the presentation, prior to the period when he allowed himself to become intoxicated.
8. He accepted that he took no notes during the presentation. He had no advisers (such as his accountant) with him. He said that after he made the decision to invest, he discussed it with his grandmother (to whom he was very close), who supported the idea; and his uncle, who did not.
9. It was put to Mr Burns, and he rejected the proposition, that he had been shown a particular PowerPoint presentation. In this regard, Mr Burns was cross-examined on the differences in the content of the slides presented to him with the content of the PowerPoint slides he recalled seeing in February 2017.

Mr Tsingolis

1. In his affidavit sworn on 10 May 2019, Mr Tsingolis deposed, in narrative form, to the circumstances and content of discussions in the February 2017 presentation. Part of that evidence was objected to as to form and Mr Tsingolis had the opportunity to state in his evidence in chief what he said to Mr Burns. He recalled that Mr Radcliff was going to deliver the presentation; comprising a PowerPoint slideshow revealing features of the Unicar App and another slideshow presentation that had been used to present to Volkswagen.
2. In his affidavit, Mr Tsingolis did not directly respond to Mr Burns' account of what was said on the boat. He said he was not there. When asked in cross-examination why he could not have delivered the presentation himself, which he agreed amounted to an 'investor pitch', Mr Tsingolis explained that his preference was to leave it to Mr Radcliff, his legal representative and Unicar's general counsel. Mr Tsingolis explained that the presentation was not intended to be a business meeting, which I found implausible, having regard to the effort Mr Radcliff plainly expended to arrange to have PowerPoint slides and an excel spreadsheet and (on the defendants' collective case) a single page investment opportunity sheet on hand. He understood, though, that the purpose was for Mr Radcliff to speak to prospective investors (not limited to Mr Burns).
3. Mr Tsingolis deposed to Mr Burns indicating to him, in advance of the presentation, that Mr Burns' family was wealthy, that Mr Burns had ran investments for the family and that they, the family, were looking for a 'start up' to invest in; and that Mr Burns was interested in making investments on behalf of family and on his own behalf. This evidence (objected to in its original form in his affidavit) was challenged as simply an attempt by Mr Tsingolis to make it appear that Mr Burns was more financially sophisticated than Mr Tsingolis understood he was, to support Mr Tsingolis' case. Mr Tsingolis denied that this was his intention.
4. Mr Tsingolis deposed that an offer was made to Mr Burns and Mr Damien Yates (another potential investor at the presentation) in the same terms: an offer of $0.50 per ordinary share up to an investment of $100,000. Mr Tsingolis deposed that he made it clear to Mr Burns that he had invested approximately $600,000 in start-up costs, to that point, in both the actual costs as well as his time devoted to the concept of the Unicar App and that he had issued himself 60 million shares in Unicar. No documents were produced in answer to a request made on Mr Burns' behalf which would verify the fact that this sum was paid. Mr Tsingolis explained that he shuffled money around between his companies to make payment.
5. Mr Tsingolis explained that he was offering to his friends half of what was being offered to (other) investors. He deposed that he had prepared a short 'Investment Opportunity' term sheet, which he said had been provided to Mr Burns (and Mr Yates) at the meeting on the boat.

Mr Radcliff

1. Mr Radcliff is a solicitor. He is a legal director of the firm CRSTLAW Pty Ltd, which trades as 'Radcliffs' (formerly 'Radcliff Taylor Lawyers'). Mr Radcliff prepared two affidavits. The first was dated 9 April 2019; the second was dated 13 February 2020.
2. In his first affidavit, Mr Radcliff deposed to the circumstances in which the February 2017 presentation was arranged. He indicated that it was primarily for the benefit of KIS Capital Partners, which everyone understood as an experienced capital investor. However he was informed, prior to the presentation; that a few of Mr Tsingolis' friends would be joining the presentation for a 'general discussion' as they were also interested in investing in Unicar.
3. He deposed in his second affidavit that he prepared a one-page investment opportunity document which he was instructed (by Mr Tsingolis) to provide to any potential investor thereafter, who requested further information about the investment. In neither affidavit did Mr Radcliff give an account of the substance of what was said during the presentation in a way that directly responded to Mr Burns' account in the latter's affidavit.
4. Under cross-examination, he was referred to statements in it which might have conveyed to someone reading them statements of current fact: namely, that the company generates (as in the present tense) revenue and was launched in February 2016. Mr Radcliff stated that this was not the intention of the statements. The statements were made to indicate to prospective investors what would happen in the future. He also said that the reference to 'Series A investment' in the 'business summary' was distinct from, and followed, seed investment. Mr Radcliff was also referred to the description of the use of funds in the document. It was put to Mr Radcliff that the company's banking documents, which traced how Mr Burns $300,000 was in fact used was quite different in nature to what was conveyed in this sheet: the sheet suggested that the funds were to be utilised to develop the business of the company. Mr Radcliff said he had no interest in how Mr Burns' investment proceeds were to be used - he was just following instructions.
5. He also deposed that Mr Tsingolis instructed him that his friends and associates (in Sydney) could purchase shares at $0.50, rather than $1.00.
6. Mr Radcliff deposed to showing Mr Burns (and Damian Yates) a PowerPoint slideshow showing features of the business model and the features that the App would have (it had not yet developed but was in 'concept stage'). He said that another slideshow which had been presented to Volkswagen was also shown.
7. Mr Radcliff gave evidence that Mr Burns had told him that his family was very wealthy and were looking to invest. He said he was involved in the decision to invest some of the family wealth in a start-up business and that he had its permission to make investment decisions in relation to a start- up business. He was challenged about his evidence that Mr Burns said these things, but he adhered to the correctness of his recollections in that regard. It was specifically put to, and denied by Mr Radcliff, that he was trying to elevate Mr Burns' financial sophistication because he thought that might assist his case.
8. Under cross-examination, Mr Radcliff said he did not regard the February 2017 presentation on board Mr Tsingolis' boat as being important. He said he had started to consume alcohol almost from the time he got there. Although he said he understood that the purpose of his presenting a slideshow was to inform (if not impress) potential investors, and that he understood that those in attendance might become investors in Unicar, he said he did not feel uncomfortable engaging in this activity in the environment he was in.
9. Mr Radcliff deposed that he did not request any investment from Mr Burns that day and that he did not hear Mr Tsingolis request any commitment to make such investment that day. He acknowledged however, that such a request was made on (or by) 1 March 2017.
10. Mr Radcliff denied making any representation to the effect that Mr Burns was invited as a first round seed capital investor in Unicar at 'ground level prices'.

Mr Yates

1. Mr Yates is an electrician. He was another friend of Mr Tsingolis. He prepared an affidavit (dated 12 April 2019) in which he deposed to his recollections of what occurred on the yacht in February 2017. He went on to the boat after being told about Unicar's development of an app and a meeting that was to occur with professional investors; followed by a social gathering on the boat.
2. He deposed to looking at a slideshow on the boat which showed features of the business model and the features that the app would have. Another slideshow featuring Volkswagen was shown.
3. When he gave his evidence, he said he had been informed that the app was in development, but had not yet been released. He said he recalled that a price of $0.50 would be offered to Michael's (Mr Tsingolis') friends, although no offer was made to purchase shares. He recalled Mr Radcliff saying that he should go and seek independent advice in making any investment.
4. In these last respects, Mr Yates' recollections were challenged in cross-examination but he adhered to them. Mr Yates accepted that he was not issued shares as a result of the February 2017 presentation. He said he had subsequently made a $70,000 investment in Unicar. It was put to Mr Yates, but he denied, that the $0.50 per share purchase price was only the result of more recent discussions (T 353) (i.e. subsequent to the February 2017 presentation).

Mr Burns' Evidence

1. As noted in the factual narrative earlier, on 1 March 2017, Mr Burns received an email from Mr Radcliff. Salient parts of that email included the following: "Could you let me know if you are keen to move forward with an investment and if so what entity would you like to hold your shares and the amounts to be invested by email." "We are meeting with an investor next week who will likely take out the remaining seed investment round available."
2. Mr Burns deposed that he understood the email to mean that if he did not invest quickly there was a risk that he would lose the opportunity to do so at the same price as the original investors. He reiterated his understanding that the seed investment would be an investment at ground level prices.
3. Senior Counsel for Mr Radcliff questioned Mr Burns why, if he felt pressured to make an investment decision because of the prospect of another investor, he did not communicate that concern to anyone, or sought a timeframe from Mr Radcliff. It was put to him that timing was not a great concern when the investment opportunity was being presented by a friend, Mr Tsingolis, who Mr Burns trusted. But there were other emails later that same day, which were drawn to Mr Burns' attention in re-examination. I do not read those messages, however, as providing any objective basis for thinking that there really was a degree of urgency. Mr Burns did say that, from these messages, he started to get his 'ball rolling' in the sense of prompting him to taking active steps to bring about the investment.
4. A common feature of the cross-examination was Mr Burns' requests for advice to Mr Radcliff as to some basic legal and financial concepts, such as the differences between a trust and company, an indication as to how the investment worked, and an indication of the information that he would need for his accountant and bank. Eventually, Mr Burns received answers to these questions from his own accountant, Mr Hawkins.
5. On 4 April 2017, Mr Burns had several email communications with Mr Radcliff putting in train steps to insert Storm as the investor in its capacity as trustee of the trust which Mr Burns had established.
6. Mr Burns deposed that on or about 5 April 2017, he received a telephone call from Mr Tsingolis. Mr Burns indicated his objective of investing $300,000 through his company, Storm and his trust. Their conversation relevantly proceeded substantially to the following effect: Tsingolis: "That's great news. Volkswagen has signed on an investment price per share has gone up." Burns: "Will you still honour the original seed investment offer that we discussed on the boat?' Tsingolis: "Yes for you I will honour our original offer that other investors have received that anyone investing after you, including Corey and his mates, will be paying double. Volkswagen was to become full financial partners with Unicar, and our long-term strategy is for Volkswagen to buy out, so that shares in Unicar will become worth were a lot of money. Burns: "That sound(sic) great"

Mr Tsingolis

1. In his affidavit, Mr Tsingolis indicated that he was aware of Mr Radcliff's email of 1 March 2017, but deposed that he kept himself separate from negotiation of the terms of investors and left the progress of the matter to Mr Radcliff; who kept him verbally updated. Nevertheless he was aware that Mr Burns was interested in investing up to $300,000; which was reflected in the circumstance that Mr Radcliff had sent a share issue agreements to Mr Burns for 600,000 ordinary shares at $0.50 per share.
2. Mr Tsingolis acknowledged the issue of 15 million shares (in the aggregate) to Jacqueline Scott, Board Engine Pty Ltd and Christina Quig. These, he deposed, were issued in recognition of the unpaid work that each of those parties had put into development of the Unicar App. He was challenged about how these proportions were worked out, including what steps, if any, he took to determine what 'value' these other investors had brought to Unicar. He said, amongst other things, that he had conferred with Mr Radcliff about this. Mr Radcliff subsequently gave evidence indicating that there had been no such discussions with Mr Tsingolis specifically identifying the value provided by these other investors.

Mr Radcliff

1. Mr Radcliff's account in his first affidavit was sparse. He annexed to his affidavit the correspondence he had with Mr Burns on 1 March 2017. This was before 4 April 2017, when he responded to Mr Burns request for information about how to set up the business and asked Mr Burns how much he would be prepared to invest and the appropriate entity for a draft agreement. He suggested that this be provided to Mr Burns' accountant. This draft agreement was sent to Mr Burns on 6 April 2017.

Storm's Submissions

1. Storm submits that by their defence, Unicar/Mr Tsingolis admitted to making a representation that Mr Tsingolis had invested $600,000, and any slight variation as to what Mr Tsingolis said when he gave evidence should be rejected as being inconsistent with that admission. It submits that by Mr Tsingolis' own admission, which was the effect that he had contributed $600,000 in cash and 'sweat equity' the representation was false.
2. Storm submits that the representation by Mr Tsingolis that other investors had agreed to invest $100,000 was a representation as to existing matter that was false: no investors had agreed to contribute that sum.
3. Storm submits that Mr Radcliff's alleged statement about an invitation being made to Mr Burns to invest at 'ground level prices' was false. What was being objectively conveyed to Mr Burns was that if he invested he would receive shares at the same, or lower, price per share than those who had invested before and after in Unicar, including Mr Tsingolis. This was also misleading in circumstances where Mr Tsingolis, through Aurlev, could have only paid one cent per share, in comparison to the $0.50 per share offered to and subsequently paid by Storm; and the only other shareholders in the company were issued their shares in exchange for nil dollars. Storm says that the question whether the other investors received shares for free as compensation for their work and respective services for Unicar, was irrelevant.
4. Storm submits that Mr Radcliff represented, by his email on 1 March 2017, that he and Mr Tsingolis were meeting another investor who would likely take out the remaining seed investment. This, Storm submits, was a representation as to a future matter which, by reason of section 4 of the ACL, has the deeming effect that if the representor adduces no evidence of reasonable grounds, the representation will be taken to be misleading. Storm submits that the only purpose for the statement was to induce Mr Burns to invest. This was said to flow from the circumstances that not only was an indication given to Mr Burns that a window for investment was soon to close, but also that it was Mr Radcliff's representation that another investor was likely to take out the seed investment.
5. Storm says that Mr Radcliff' evidence that he represented that he and Mr Tsingolis were meeting other investors did not establish any grounds, let alone any reasonable grounds, for the making of the representation. At any rate, even that representation was false in circumstances where the objective evidence was that Mr Radcliff had no meetings in the following week with investors and was not in Singapore with Mr Tsingolis.
6. Storm submits that on 5 April 2017, Mr Tsingolis falsely promised that the share price had gone up, but Unicar would honour its original offer that other investors had received. This was false because there had been no other investors who had invested in Unicar. At the time the representation was made, there was an intention to issue shares to Mr Radcliff for nil dollars.
7. Storm submits, in general, that all of these representations were material.

The Defendants' Submissions

1. The defendants collectively made certain submissions: Unicar and Mr Tsingolis adopted many of the submissions advanced on Mr Radcliff's behalf. In some respects, Mr Radcliff differentiated his position with the position of Mr Tsingolis.
2. Both defendants submit that Mr Burns' recollections of what was said on the boat were undocumented, uncorroborated and were not reliable. Both submit that such representations as were made in or about the February 2017 presentation were made in a social context and were not "in trade or commerce" and were therefore not caught by the ACL.
3. Both submit that the 'ground level price' representation was too vague in its terms to be actionable.
4. Both defendants say that, in their cases, certain representations were not, in terms, put to the defendants in cross-examination and that the rule in Browne v Dunn (1893) 6 R 67 would now preclude the Court from considering them.
5. Mr Tsingolis says it was not put to him that he made either the $600,000 representation or the representation that other investors had agreed to put in $100,000. Both defendants say that Mr Burns did not raise any questions arising from such representations being made. They say that Mr Burns was offered shares at 50% less than other investors, which amounted to seed capital or ground level prices in any event.

Mr Radcliff's Separate Submissions

1. Mr Radcliff submitted that he could not be liable for the 'Seed Capital' representations made by Mr Tsingolis to Mr Burns. He said that it was not put to him that he made the representations.
2. Mr Radcliff says that the alleged representation in the email on 1 March 2017, regarding the prospect of other investors taking out the remaining 'seed investment round' is of its nature a representation as to a future matter, but the facultative provisions in s 4 of the ACL or s 769C of the Corporations Act were not pleaded; with the result that Storm had to prove misleading or deceptive conduct without the benefit of any deeming provision.
3. Mr Radcliff characterised the statement as an opinion as to future events only and there was nothing to suggest that this opinion was not honestly held. There was nothing to indicate any intent to place pressure upon Mr Burns. Given that he was in Singapore with investors at the relevant time, there were reasonable grounds to hold the opinion.

Principles relating to representations as a species of misleading or deceptive conduct

1. Representations are a common form of 'conduct', for the purposes of s 18 of the ACL. But the meaning of a representation might differ, as between the representor and the representee. In the present context, the question is how the representation would have been understood by a reasonable person in the representee's position [8] . As McHugh J said in Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 (at [109]), this is an entirely objective question involving consideration of the conduct of the representor as a whole [9] .
2. When the impugned conduct is in the form of a representation, in order for it to be misleading or deceptive it is essential that the representee labours under some erroneous assumption [10] . The ultimate question is whether the impugned conduct (in this context, representations), viewed as a whole, had the tendency to lead the representee into error [11] .
3. The initial question in considering whether a representation is misleading or deceptive is to characterise the conduct. The authorities indicate a difference in approach where a representation is made in the course of private dealings between individuals or is directed to a larger segment of the public. As to the former, in Butcher at [37] the majority in the High Court outlined the proper approach to characterisation of conduct directed to identified individuals as follows: "The plaintiff must establish a causal link between the impugned conduct and the loss that is claimed. That depends on analysing the conduct of the defendant in relation to that plaintiff alone. So here, it is necessary to consider the character of the particular conduct of the particular agent in relation to the particular purchasers, bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them, or which each may be taken to have known." [12]
4. To the extent that a representation case is based upon future matters, such as predictions, the question whether they may be regarded as misleading or deceptive is affected by s 4 of the ACL (s 769C of the Corporations Act) which effectively deems a representation about a future matter to be misleading in the event that the representor does not adduce evidence that s/he or it had reasonable grounds for making it (noting that the provision is not intended to reverse the onus of proof). In this regard, evidence of the representor's actual belief is not enough to establish reasonable grounds.

Mr Burns

1. Mr Burns presented in a straight-forward fashion. Sometimes I felt that his demeanour was less than impressive, as instanced when he occasionally laughed at propositions put to him and at other times where he showed a somewhat breezier approach to the task of giving evidence than is normally displayed by witnesses in Court [13] .
2. I accept that his recollection was not infallible and that his affidavit and testimonial evidence merely attempted to recall the substance of what was said in the vital conversations. I am mindful of the well-known observations of McClelland CJ (in Eq) in Watson v Foxman (2000) 49 NSWLR 315 at [318-19] about the caution which must be exercised in assessing claims of verbal representations given the fallibility of human memory.
3. I did not regard the evidence of Mr Burns' self-induced intoxication after the February 2017 presentation as impairing his subsequent recollection of what had occurred in the morning. He said he had not experienced a loss of recollection of events after previous late nights. There was no medical evidence to indicate that enduring cognitive impairment resulted. The matters which Mr Burns recalled dealt with basic prospective investment parameters, to do with the amount of the investment and the price for shares. These were not complicated matters.
4. Nevertheless, I thought he gave his evidence honestly even where, as often occurred, he must have sensed that some of the answers to the questions might have made him appear foolish, naïve, incurious or careless to outsiders. An example of this was when he disclosed that his uncle had advised him against the investment; an admission which could not have otherwise been established. This was also demonstrated when he was cross-examined on his omission to obtain independent legal advice about the investment decision he had taken. The substance of what he said was not intrinsically implausible. Whilst he accepted that he did not retain precise recollection, verbatim, of what was said to him in February or April 2017 by Messrs Tsingolis or Radcliff, he had a clear recollection of the subject matter and substance of what was discussed. Contrary to what might have been implied by Counsel for Unicar (Mr Tsingolis) when he gave an account in his affidavit as to what was said, he did not profess to provide specific recollections of the words that were actually used; but, rather, their substantive effect. My impression of him was that he is a very practical man. It may be that because of his fortunate upbringing (in the sense of material comfort and wealth bestowed upon him), he was less concerned with minutiae or details than the gist of the proposed investment and despite his apparent vast personal wealth, he did not strike me as being sophisticated or experienced in financial matters. I did not regard his testimony as being severely shaken under cross-examination.
5. I formed the view that Mr Burns was an honest and generally reliable witness.

Mr Tsingolis

1. I did not regard Mr Tsingolis as being a satisfactory or reliable witness. I found he was evasive and non-responsive in his questioning. This was evident when he was cross-examined about his property development interests and dealings. The exposure of these interests cast into a different light the explanation he had given as to the reasons for his travelling overseas. It was evident when he was asked to explain the deal he negotiated with Mr Radcliff for the payment for the latter's (legal and non-legal) services: he gave a vague explanation for how he arrived at a share allocation to the latter of 7.8%. It was evident, when confronted with a document (an Information Memorandum) drafted by Mr Radcliff in July 2016, he said that "whatever it says I agreed with it". It was evident when he disclaimed recognition of a document (the single page investment opportunity term sheet) which he had previously annexed to his affidavit.
2. On many occasions when he did supply an explanation, his answers were implausible if not absurd. He gave implausible evidence when, after being challenged why he did not produce a document substantiating his payment of $600,000 for his shares in Unicar, his explanation for the nil response was that there was no accounting trail consequent upon his moving money around between his companies. His evidence was absurd when, presented with a Chairman's letter accompanying the July 2018 Information Memorandum which went out, in his name, to prospective high net wealth investors, he could not say that he had actually read it, but had left it for Unicar's legal team. This was consistent with his conduct, many times during his cross-examination of his seeking refuge in a mantra that he had left matters which were clearly pertinent to his managerial responsibility to Unicar to professionals.
3. I also held a particular concern about Mr Tsingolis' explanation for expenses incurred by Unicar throughout 2017 - when it had never earned any revenue - on lavish lunches, entertainment and even, in at least one instance, a Thai remedial massage. Aside from adopting the implausible mantra that these were 'business meetings' (without detailing who attended or for what business purpose) Mr Tsingolis indicated he had no concern with any of this since accounting records showed that he had shifted monies from other companies to make up any deficiency. If this conduct did not itself amount to a disregard of the company's interests (there was no pleaded suggestion that it did), it evinced unethical managerial behaviour and was to Mr Tsingolis' discredit.

Mr Radcliff

1. As was his right, Mr Radcliff was present in Court when Mr Tsingolis gave his evidence. He accepted that he was, in effect, on notice of several topics upon which he would be cross-examined before he gave his evidence; and accordingly he had the opportunity to prepare what he might say in the event that he was questioned on those topics.
2. I formed the impression that Mr Radcliff was anxious to impress upon the Court a range of explanations for events which were not required by the questions. Some answers provided by Mr Radcliff were, I sensed, intended to advance his case even if they appeared implausible. This was illustrated when he was cross-examined on the invoice for the sum of approximately $58,000 which his firm rendered to Unicar shortly before the end of the 2017 financial year. This invoice, he accepted, was the only one his firm had rendered during the entire period in which he supplied services (legal and non-legal) to Unicar. Its issue was prima facie inconsistent with the (undocumented) 'sweat equity' arrangement which he had said had been struck with Mr Tsingolis early in the piece. Its issue also struck Mr Tsingolis by surprise having regard to that arrangement. But Mr Radcliff implausibly explained that there was some qualification (again undocumented) to the arrangement, on the basis that it had become apparent to him at some point that he could not carry on the workload at that point. That explanation was not consistent with contemporaneous correspondence which indicated that the apparent purpose for the issue of the firm's invoice, close to the end of the financial year, was to assist Unicar to lodge an R&D claim for that financial year. There was no subsequent tax invoice issued by Mr Radcliff which would support the proposition that there had been any on-going change in circumstances that departed from the 'sweat equity' arrangement.
3. Another example was the difference in approach in the disclosure of Mr Radcliff's interest in Aurlev Holdings Pte Ltd, the Singaporean entity controlled by Mr Tsingolis in two versions of the company's Information Memorandum; both versions of which he drafted. In the July 2016 version, his interest in Aurlev Holdings was noted; in the belief that it represented a material matter for prospective investors to be aware of. In the July 2018 version, that notation had disappeared. Mr Radcliff could not sensibly account for this discrepancy. His Senior Counsel later submitted that the Information Memorandum was only intended to be seen by larger scale investors; not small ones like Mr Burns. But if the matter of his self-interest was material for wholesale or sophisticated investors, it strikes me as surprising that it would not also be material to retail or unsophisticated investors.
4. I thought he tried to minimise his role in certain dubious transactions. As to R&D claims being advanced on Unicar's behalf to the ATO, he was shown email correspondence from Kerrie Harper in November 2018 which suggested that $726,533 had been spent by Unicar on R&D for 2018 but implausibly said that he did not see the reference. As to a payment made by Unicar to Billabong Estates in the sum of $440,000 (one of Mr Tsingolis' businesses), he could barely bring himself to accept that this would have piqued his interest.
5. Documentation put to him showed that he may have been complicit in the circumstance that Mr Tsingolis' lawyers had delayed in responding to a request made (in April 2019) for financial statements on the plaintiff's behalf. He could see that Mr Tsingolis was seeking his assistance (he had been Mr Tsingolis' lawyer at the time of the events the subject of this proceeding) to answer Storm's lawyers' request for documentation. He did not respond to Mr Tsingolis' request. Mr Radcliff's response showed a level of obtuseness, which I regarded as being feigned.
6. He did not raise in his original affidavit matters which were (patently) relevant to issues in this proceeding, relating to his personal interest in Unicar, such as his 'sweat equity' arrangement with Mr Tsingolis and the timing for when issues were issued to his corporate entity (Board Engine); as well as the timing for the issue of Unicar shares on 24 April 2017. This was only corrected in an affidavit served less than a week before the trial commenced. He said that he did not know that this was relevant to this proceeding but I also regard that explanation as being feigned.
7. To a significant degree, most of what Mr Radcliff put into his affidavits was the exhibiting of documents. When it came to his recollections of events, which were documented, I am cautious about accepting it unless it is corroborated by others (other than interests associated with Mr Tsingolis).

Mr Yates

1. Mr Yates struck me as an honest and reliable witness.

Browne v Dunn

1. I do not consider that the asserted non-compliance with the rule in Browne v Dunn (1893) 6 R 67 precludes the Court's acceptance of the representations on the basis that they were not put to Mr Tsingolis or Mr Radcliff, respectively.
2. Speaking generally, this was hard fought litigation (in which every issue which could be taken was taken) and on which evidence was put on by affidavit. The critical issue is whether the defendants were on notice of the case that the plaintiff raised and, in particular, the matters peculiarly concerning each defendant. Because the evidence was on affidavit, plainly Messrs Tsingolis and Radcliff had the opportunity to respond to it [14] . Further, schedules of issues provided to the Court and the content of the Opening Address by Senior Counsel for the plaintiff made it abundantly clear - if it was not already clear - of the content of the representations which the plaintiff would argue were made by the respective defendants.
3. Further, in some specific instances, admissions were made, wholly or partially, by the defendants and/or the circumstances showed that no challenge was made in affidavits put on by the individual defendants which would, in any event, mean that any requirement to put propositions to the defendants was dispensed with.

Watson v Foxman

1. I take heed of the wisdom, with respect, underlying the observations of McClelland CJ (in Eq) in this decision regarding the need for caution in assessing a complaint about an uncorroborated verbal representation. But as Senior Counsel for Storm submitted, some of the force of the observations made by his Honour was reflective of the particular circumstances of the case at hand: the alleged making of vague or aspirational representations by a bank manager which were intrinsically unlikely or implausible. Senior Counsel submitted that the verbal representations here were sufficiently specific and were inherently plausible in the context in which they were alleged to be made.

The First Seed Capital Representations - February 2017

The 'ground level' price representation

1. As an initial finding, whether or not this representation was put, in the pleaded terms, to Mr Radcliff during his cross-examination is not a bar to the finding being made. I refer to what I have said above about the rule in Browne v Dunn. Mr Burns gave an account, consistent with this alleged representation in his affidavit. Mr Radcliff had the opportunity to respond to that account in his affidavit evidence.
2. In her submissions, Senior Counsel for Mr Radcliff cited the observations in Watson v Foxman which I have referred to. Other than this, however, the thrust of her submissions was that if the representation was made, Mr Burns did not understand what it meant and it was not material to his decision to invest.
3. I am not persuaded that Mr Radcliff represented to Mr Burns at the presentation that if he invested in Unicar he would purchase shares at the same price that Mr Tsingolis had paid, or receive the same pro rata number of shares which Mr Tsingolis had received for his $600,000 representation.
4. It is plausible that a founder of a business responsible for incorporating it might pay a different share price to that which is offered to later investors. It is unlikely that Mr Radcliff, the company's solicitor, would have represented to Mr Burns that, if he invested, he could do so on substantially the same terms as the company's founder, who had conceived the company and expended time and effort for its incorporation. That would dilute the equity of Mr Tsingolis, or his associated entity in Unicar (on the premise that such equity was held).
5. The question then becomes whether a representation was conveyed (and understood by a reasonable person in Mr Burns' position) that if he invested in Unicar, he would receive shares at the same price as the seed round of capital investors.
6. I consider that a representation was conveyed substantially in those terms. Mr Radcliff's 'investment opportunity' sheet (Exhibit C, page 154) identified that there was a 'seed funding round' (of $1-2m). His email to Mr Burns of 1 March 2017 also referred to a seed funding round. The same investment opportunity sheet identified that the share price for this particular funding round was $1.00 per share. It is true that there was debate whether or not the document was provided to Mr Burns, but its existence (and the defendants' reliance upon it) suggests that it was likely that Mr Radcliff would verbally refer to it during the presentation.
7. Mr Yates' evidence was consistent with a share price offer being discussed on the boat. He certainly did not deny it. In a context where investment was being promoted to Mr Tsingolis' friends, the price of entry for investment would naturally be of interest and concern to an investor. This did not require specification of any number, or range of numbers, but Mr Tsingolis' friends, who were being courted to invest, had to have some incentive to invest as part of first 'seed' round of investment.

The $600,000 representation

1. I am satisfied that Mr Tsingolis represented to Mr Burns that he had invested $600,000 in Unicar. There was an admission to that effect in his Defence. Mr Tsingolis virtually admitted as much in his affidavit. His Counsel submitted that the reference to $600,000 was ambiguous: that it meant $600,000 cash and sweat equity for his efforts. I regard that as an embellishment. At any rate, as indicated, the question for present purposes is not what Mr Tsingolis meant, but how what he said was reasonably to be understood by Mr Burns. In my view, the statement would have been reasonably understood by Mr Burns as a representation that Mr Tsingolis had paid $600,000 in cash.
2. This is in a context where Mr Tsingolis was encouraging Mr Burns to make an investment. It was a natural thing for a promoter in his position to indicate his own willingness to put 'skin in the game' as a means of conveying confidence about the prospects of a new start-up business.
3. In light of these matters, it is scarcely necessary to be overly cautious in assessing the credibility of Mr Burns' evidence as suggested in Watson v Foxman.

The 'other investors agreement to invest $100,000' representation

1. I am also satisfied that Mr Tsingolis represented that there were other investors who had agreed to invest $100,000 each in Unicar; this being in response to Mr Burns' question of him.
2. I reject the Browne v Dunn objection voiced by Counsel for Unicar and Mr Tsingolis for the same reasons referred to earlier.
3. Mr Tsingolis did not deny making the statement in his affidavit in response to Mr Burns' affidavit. Mr Tsingolis accepted that he was looking for investments in $100,000 lots. Mr Tsingolis said in cross-examination that he understood that Mr Yates had agreed to invest, but even if that was so, at no stage had he ever agreed to invest $100,000.
4. This alleged representation complemented Mr Tsingolis' representation as to his paying $600,000 for his shares in Unicar. It was natural for Mr Burns to ask whether there were other investors. That would provide additional confidence to him about the favourable prospects for this investment beyond the promoter's indication that he had put his skin in the game.
5. Mr Tsingolis would reasonably have also understood that a representation that other investors had already agreed to invest the sum was an indication to Mr Burns that he should not, in effect, simply take Mr Tsingolis' word attesting to the viability of Unicar's business and prospects, but take heed that others had also agreed to invest.
6. Counsel for Unicar and Mr Tsingolis contended that Mr Burns did not probe Mr Tsingolis for further details about the investment of others or request that this be put in the share sale agreement. But this contention overlooks that the question about other investors was made simply to provide the opportunity for the promoter to prove that others, apart from himself, were prepared to put their skin in the game.
7. The balance of Unicar and Mr Tsingolis' contentions against this particular case were centred upon the credibility and reliability of Mr Burns (or lack thereof). I have explained, earlier, my reasons for finding that he was credible and reliable and more credible and reliable than Mr Tsingolis.
8. Counsel for Unicar and Mr Tsingolis did not suggest that, if the Court was to find that this representation was made, it amounted to an expression of opinion, reflective of honest belief, rather than as a statement of fact. He did not refer to any other investors as having made a commitment, or entered some understanding, as at February 2017. Nor did he make any reference to how much any such investor had agreed to pay. Documents were not discovered in answer to a requested category for production of documents recording communications regarding actual or potential investment in Unicar from 1 February to 2 May 2017.

Mr Radcliff's 1 March 2017 email

1. The alleged misleading or deceptive conduct arising from the content of Mr Radcliff's 1 March 2017 email is different in nature to the other alleged express representations in at least two respects. First, it is documentary. Secondly, it goes beyond expressing a statement of fact.
2. I referred to some well-established authorities earlier in these reasons but in the assessment of a documentary representation, it is pertinent to note the Court of Appeal's recent decision in Ireland v WG Riverview Ltd [2019] NSWCA 307, which is very recent authority that deals with the principles in both these respects.
3. First, the misleading or deceptive conduct has to be viewed as a whole. The effect of what is written in a document has to be considered in context (and not in isolation), including any statement, action, silence or inaction in connection with the document [15] .
4. Secondly, there is a distinction between statements of fact, and expressions of opinion; but there may also be a distinction between opinions and representations as to future matters [16] . Opinions may convey a representation that the opinion is honestly held, but not necessarily that the opinion is reasonably based. This was the type of case considered in Forrest v ASIC (2012) 247 CLR 486, regarding a statement that a contract had been entered. A prediction, on the other hand, is a species of representation as to a future matter, for example, that a contract is likely to be entered. That often carries with it the representation that the person making the statement has reasonable grounds for trusting that events will turn out as expected or forecasted [17] .
5. Applying these principles, it is relevant to generally consider how the email would have been reasonably interpreted by someone on in Mr Burns' position as at March 2017. More specifically, that calls into question the nature of the parties, the character of the transaction and the content of the email.
6. Mr Radcliff was an experienced commercial solicitor and attorney for Mr Tsingolis, an experienced property developer. Mr Burns was a man whose wealth was inherited and who represented his interest in investing, for himself and possibly also his family. I do not find that he represented that he was an experienced investor, either generally, or an experienced investor in relation to start-up companies. Although he had a margin loan, he had no demonstrable record of active investing and, at least, not one that he had represented (or could demonstrate) to Mr Tsingolis or Mr Radcliff.
7. The contact that occurred on 1 March 2017 was a follow up to what had been discussed on the boat a few days before. Part of that discussion involved Mr Radcliff supplying a PowerPoint presentation, slides and (on the defendants' case) possibly a single page investment document not only to Mr Burns, but also Mr Yates. That was, as Mr Tsingolis accepted, an 'investor pitch', which introduced to Mr Burns the concept of Unicar. This pitch was not the sort of conduct that a commercial solicitor would typically engage in. In my view, Mr Radcliff was wearing the hat of promoter, or at least as an assistant to the promotional activities of Mr Tsingolis. As the initial part of the 1 March 2017 email indicates, Mr Radcliff was now seeking an indication of whether Mr Burns was willing to commit to an investment in Unicar.
8. As to the balance of the content of the email, which was the subject of particular focus, there were two interconnected parts. The first was a representation that 'we', that is Mr Radcliff and Mr Tsingolis, were due to have a meeting with "an investor" next week. That is a representation of present fact (even if the meeting was to take place in the future). The second part conveyed that that investor "will likely" take out the remaining seed round available. An opinion is, essentially, an inference drawn from observable data [18] . The inference that a person may make is subjective and is affected by a person's background. An inference drawn by a lawyer as to whether a contract has been entered into could well be different to the inference drawn from a layperson. But the words chosen by Mr Radcliff were that it was the investor that he would be seeing next week who would likely take out the investment is a prediction. Unlike an opinion, which may convey no more than a representation of honest belief, in my opinion, for a prediction of this kind, there is a representation as to a future matter; which engages s 4 of the ACL and s 769C of the Corporations Act.
9. I reject Mr Radcliff's pleading point that the omission to expressly refer to those provisions means that they are not engaged. The pleading (paragraph 30) clearly indicates Storm's intention to assert that this representation was to a future matter.

Mr Tsingolis' Representations on 5 April 2017

1. These were said to arise from a telephone conversation on 5 April 2017.
2. Another Browne v Dunn point was raised against Storm, which I reject for similar reasons to those previously expressed. It was not incumbent upon Storm's Senior Counsel to cross-examine Mr Tsingolis in respect to the existence of a matter referred to in Mr Burns' affidavit which Mr Tsingolis could have, but chose not to respond to in his affidavit.
3. Counsel for Unicar and Mr Tsingolis raised a point whether the representation, if made, was in trade or commerce. It was, for reasons elaborated in the section of these reasons below.
4. I find that the representation was made as Mr Burns indicated in his affidavit (at paragraph 40). Mr Tsingolis did not deny making the call or making the statements attributed to him. It was not suggested to Mr Burns that they were not made.
5. The statements were consistent with earlier conduct of Mr Radcliff, in his email of 1 March 2017, of trying to get Mr Burns to make a commitment to invest sooner rather than later, i.e. before the share price rose.

Were the representations made in trade or commerce?

1. I reject the proposition that the representations in February 2017 were simply social statements made between friends. The context of the conversations, including but not limited to the PowerPoint slides and (on the defendants' case) provision of a one-page information document indicated that the purpose of the communications and provision of information travelled well beyond friendship. An investment opportunity was indicated, Mr Burns was invited to bring along any professional adviser. Other potential investors were in attendance.
2. Similarly, the sending of the 1 March 2017 email and Mr Tsingolis' representations on 5 April 2017 was conduct which progressed the company's promotional efforts to get Mr Burns to invest money in the business.
3. The defendants relied upon the decision of Slattery J in Levy v Bablis [2011] NSWSC 461 for the proposition that when statements are made about investments between friends, that circumstance, without more, is not made in trade or commerce. However, I agree with the submission made by Senior Counsel for Storm that the case here is distinguishable. This was not a statement between friends who commonly contemplate investing in a company. This was a statement by the promoter of a company to a friend that related to investment in the company that he founded. In Mr Radcliff's case, his representations were made to encourage or induce an investment in a company of which he was the general counsel. At any rate, the status of the relationship between representor and representee is not determinative: the statements were directed to the business operations of Unicar and concerned the viability of investing in it [19] .

Did the representations amount to misleading or deceptive conduct?

The 'ground level price' representation

1. The representation that I have found was conveyed was, in substance a promissory representation, made before Storm entered the share issue agreement, that if it invested, as a seed round investor, it would do so at the same 'ground level' price as other investors for that round. That is, the impugned conduct is a promise that, if Storm invested, it would pay the same price as other seed investors.
2. In Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82, the Full Court of the Federal Court said (at [88]) that the non-fulfilment of a promise, when the time comes for performance, does not of itself establish that the promisor did not intend to perform it when it was made, or that the promisor's intention lacked any, or any adequate, foundation. Statements of intention may encompass a representation as to present fact - that it is the representor's present intention.
3. In this case, the surrounding evidence (not apparently known by Storm, but known to Mr Radcliff and Mr Tsingolis) was that the price for the seed round of investors was intended by Unicar to be $1.00 per share. As it turns out, Mr Burns, or Storm, paid $0.50 per share. On this basis, of course, no loss could have been occasioned.
4. But Mr Burns' complaint centres upon the circumstance that other investors later received their shares in Unicar for free.
5. There are several difficulties for Storm. First, there is a question whether service providers to the company like Mr Radcliff were in fact part of the same seed round class of investor as Mr Burns at all; or whether they were to be treated preferentially, or separately, to seed round investors. There is no suggestion that, at any stage, Mr Tsingolis ever drew such distinction to Mr Burns' attention so in determining how the representation would reasonably have been understood by Mr Burns, this particular matter may be put to one side.
6. Secondly, although I accept that there was a common understanding, as between Unicar and Mr Burns, that there was a seed round of capital, the evidence did not disclose the duration for that seed round, or at least that there was any disclosure to Mr Burns as to how long the seed round was to subsist. Mr Radcliff's 1 March 2017 email did not specify a date - that email only conveyed a prediction that an unidentified investor might scoop up the balance of the seed capital available for that particular seed round.
7. Thirdly, although I accept that the promise conveyed a statement of present intention, it is not clear to me why I should find that such statement of intention was (a) irrevocable or (b) conveyed a further representation that the promise was capable of being complied with in the future. I do not consider that at the time Mr Radcliff conveyed the representation it can be said that he did not intend that the promise would be honoured.
8. This may explain why, in its pleading, Storm suggested that the representation was a continuing one (paragraph 27) or (alternatively) amounted to a representation as to a future matter (paragraph 30).
9. But this pleading technique does not address the second and third difficulties that I have identified above. That is, I am not persuaded that the events subsequent to this particular representation (the investment of others) falsified Mr Radcliff's earlier promise: I am not satisfied that Mr Burns has established that whether they acquired their shares during the same seed round as Mr Burns did; and I am not satisfied that the statement of intention was irrevocable.
10. I reject the proposition that Mr Radcliff's representation about ground level prices constituted misleading or deceptive conduct.
11. Had I found that the ground level price representation was made out, I would not have accepted that reliance was placed on it, in the terms of the representation I have identified. There was no reference to the promise in the share sale agreement that Storm executed. Mr Burns sought no statement as to who were the seed investors, the period that the seed offer was open for or the ground level price that all prospective investors who fell within the 'seed investor' category would pay.

The $600,000 dollars representation

1. I find Mr Tsingolis' representation that he had invested $600,000 in Unicar in February 2017 to be false and misleading. Unicar's bank statements revealed a nil balance as at early February 2017. The ASIC register did not indicate that any investment by Mr Tsingolis had been paid.
2. No documents were produced in answer to a request for discovery to prove the work to which the 'sweat equity' of Mr Tsingolis related and he gave no evidence of that.
3. No bank account existed in February 2017 into which such payment could even have been deposited.

The 'other investors have agreed to invest $100,000' representation

1. As at February 2017, it was also false and misleading for Mr Tsingolis to represent that other investors had agreed to invest $100,000. There was no evidence to support that statement of present fact. Later, in April 2017, there were investors who received shares, but they did not pay any money to receive them.
2. Neither Mr Tsingolis nor Mr Radcliff referred to such agreement in their respective affidavits. No document was discovered relating to investment by any other investor prior to 2 May 2017.

Mr Radcliff's 5 March 2017 email

1. The effect of the statutory provisions is to deem the representations to be misleading if Mr Radcliff did not adduce evidence that there were reasonable grounds for making it.
2. Senior Counsel for Mr Radcliff submits that the evidence showed that he was in Singapore on 9 April 2017 and had a basis for assuming that no further shares would be offered at $0.50. She also submitted that what Mr Radcliff was conveying in his message was that the price being offered to friends was closing shortly.
3. I do not accept these arguments. I do not read the content of the email as implicitly conveying a distinction between the offer to invest to Mr Burns, or other 'friends' of Mr Tsingolis; and other investors generally; and accordingly, do not also read any reference being made to the price at which the offer might be based. I regard this argument as reconstruction.
4. Rather, what is being conveyed is that a meeting was to be held with an investor (in the singular, not the plural) who, Mr Radcliff predicted, would scoop the capital that was left for this particular category of seed investors generally; whether they were Mr Tsingolis' friends or not.
5. Mr Radcliff did not adduce evidence that there was a meeting in the week after 1 March 2017 with an investor who, as at 1 March 2017, reasonably appeared to be likely to be in a position to agree to acquire the seed capital in Unicar.
6. That being so, I find that in making the statements in the email, Mr Radcliff engaged in misleading or deceptive conduct.
7. I note, further, that even if Mr Radcliff had adduced (viva voce) evidence, the contemporaneous documentary trail (evidenced in Exhibit C, Vol 3) indicated that, as at 1 March 2017, until May 2017, no one other than Mr Burns had indicated any interest in investing. In view of the findings of credit I have made against Mr Radcliff, it may have been the case that even if he had said something in an attempt to substantiate the basis for his statements, I would have found that Storm had discharged its onus. It is unnecessary to decide this point, however.
8. It is not necessary to this finding to determine whether, when sending the email, Mr Radcliff was bent upon applying pressure tactics to bear upon Mr Burns, as was vigorously debated. That is a purely subjective inquiry when the question is what a reasonable person in Mr Burns' position would have made of it. But in the context in which the message was sent, following the presentation, not long before the email was sent, which promoted the investment and the other indications in the email, objectively, the message would reasonably have been understood by Mr Burns as an inducement for him to make a commitment shortly lest he miss an investment opportunity to an unidentified but particular investor; either completely, or on the basis (that he was a seed capital investor) that it had been introduced to him.
9. I have also considered whether it might be said that in making the statements, Mr Radcliff was doing so merely as intermediary or agent for Mr Tsingolis. If he did that would not relieve Mr Radcliff of the finding of misleading conduct by himself, although it might also implicate Mr Tsingolis as principal. Storm did not allege that Mr Radcliff acted in this particular capacity, so the issue was not raised on the pleading. At any rate, the evidence is not sufficient to permit such finding to be made.

Mr Tsingolis' 5 April 2017 Representations

1. This representation is said to be continuing in nature. That is, it could not be said to be misleading at the time it was expressed, but could potentially be if subsequent events falsified it.
2. Here, Storm says that the circumstance that Mr Radcliff, who acquired his shares after Storm had acquired its shares, not only did not pay double (the share price), but did not pay any money at all (because of his 'sweat equity' arrangement) falsified this representation. (It is not clear whether Mr Radcliff's "mates" included the other investors who acquired shares after Storm had).
3. In my opinion, this representation was a continuing one, and for it not to be misleading or deceptive, it was necessary for Mr Tsingolis to correct it. A reasonable person in Mr Burns' position would have understood that Mr Tsingolis was trying to induce him to invest shortly, before the share price went up, but Mr Tsingolis was also trying to provide assurance that with price volatility (on an upward trajectory), Mr Burns would be better off than Mr Radcliff and others who were not as prompt as he was in committing to an investment in Unicar.
4. Storm paid its money on 1 May 2017. By then agreements had been reached whereby other investors would receive their shares in Unicar for free. Indeed, it appears that such agreements had been reached with other investors towards the end of April 2017. Indeed, in Mr Radcliff's case, if his evidence is to be believed, his 'sweat equity' arrangement with Mr Tsingolis had been struck well before Mr Burns arrived on the scene.
5. It would not have taken much for Mr Tsingolis to correct or qualify his representation by stating that (contrary to his earlier representation) Mr Radcliff would not be paying double the share price that Mr Burns (and thereby Storm) would pay, if he committed to investing at that point in time, but would not be paying any price at all and this was attributable to an antecedent arrangement struck between himself, Unicar and Mr Radcliff that the latter was receiving his equity in lieu of the cash he had foregone in providing his professional services to the fledgling business.
6. Without such qualification or correction, Mr Burns (and Storm) was led into error in thinking that if he invested at the time, he would be better off than other people, including Mr Radcliff and his friends, who were not as prompt as he was in investing in an environment where Unicar's share price was on the rise.
7. By not making the qualification or correction to his representation, I find that Mr Tsingolis engaged in misleading or deceptive conduct.

THE NON-DISCLOSURE CASE

1. At the risk of undue repetition, it may assist the reading of these reasons to re-state the putative matters which Mr Burns says were not disclosed to him and which, as a result of the failure to disclose them, rendered the conduct of the defendants misleading or deceptive. These were: 1. up to 2 May 2017, the only shareholder who had purportedly bought shares in Unicar was Aurlev, which had purportedly paid $600,000 to received 60 million shares at $0.01 per share; 2. prior to 2 May 2017, Aurlev had not paid $600,000 to received 60 million shares; 3. 15 million shares in Unicar had been issued to 3 other shareholders, including an entity associated with Mr Radcliff, on or about 24 April 2017 for nil dollars; 4. in return for Storm's $300,000 investment, it would: 1. not receive its shares in Unicar at the same price as Mr Tsingolis (through Aurlev) had paid; 2. not receive its shares at the price paid by first round seed capital investors; 3. be paying 50 times more than Mr Tsingolis (through Aurlev) had purportedly paid; 4. have an equity interests of less than 1% of the issued share capital in Unicar; 5. have only negligible legal rights to have input into the running or administration of Unicar; 6. have a shareholding in Unicar which had virtually no voting power and, in substance, no material value, 1. that Messrs Tsingolis and Radcliff (and Aurlev and Board Engine) had a conflict of interest in that while they encouraged Storm to invest in Unicar and to provide working capital for Unicar, it was in their interest that the number of shares fully issued to Storm be kept to a minimum, so as to preserve the equity of Aurlev, Board Engine and other shareholders of Unicar; and 2. in November 2016, Mr Tsingolis (on Unicar's behalf) agreed to issue 10% of Unicar's shares to Mr Radcliff for work and contribution to Unicar's business.
2. There is no dispute that virtually all of the 'matters' said to have been omitted are omissions that are factually established. The real question is whether there was misleading or deceptive conduct in the defendants' actions by reason of omitting to disclose them to Mr Burns before he made his decision to invest.
3. In this regard, Senior Counsel for Storm put to Mr Radcliff, some of the circumstances which he said supported disclosure: the 'environment' in which the February 2017 presentation was made; especially with Mr Radcliff wearing different hats: promoter, solicitor and friend to Mr Tsingolis and the rampant drinking (and more) that went on in the afternoon of the presentation. He put to Mr Radcliff that, being a solicitor, what he said about the company might be regarded more credibly because he was a solicitor. He cited that Mr Radcliff subsequently engaged in correspondence of a friendly tone with Mr Burns after that presentation. He would have, or arguably should have, construed certain requests for information made by Mr Burns after the presentation as evincing Mr Burns' lack of financial sophistication. Mr Radcliff rejected all of this.
4. Mr Radcliff was asked to explain why he did not disclose that he (or Board Engine) was going to get 10 times the shares that Mr Burns (through Storm) was going to receive. Mr Radcliff said that he did not believe that this was relevant to Mr Burns' decision to invest. At the stage of the February 2017 presentation, there was no proposal by Mr Burns; although Mr Radcliff conceded that he understood that Mr Burns might be interested.
5. Mr Radcliff was challenged why, by late April 2017, he had not issued shares to himself and otherwise why he did not disclose this to Mr Burns. Mr Radcliff said he did not think that this either needed to be addressed or would, or could, impact Mr Burns' decision. He thought that Mr Burns had received assistance from his accountant. Of what kind that assistance might take was not something he cared to consider. By his past experience, he had known of accountants providing financial advice to clients. He thought that if he invested, Mr Burns might stand to make a lot of money.
6. Mr Radcliff was challenged why he did not lodge with ASIC the Form 484 form (identifying share issues to the range of other investors (including Board Engine)) until a point virtually after Mr Burns had paid the $300,000. It was put that he held off on lodging it because he did not want Mr Burns to know about it. Mr Radcliff denied this.

Principles

1. In Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at [19]-[23], French CJ and Kiefel J (as her Honour then was) explored the circumstances in which the non-disclosure of information might be characterised as (statutory) misleading or deceptive conduct, and the relationship between that form of conduct with the form of conduct based upon misrepresentation. Their Honours said (citations omitted): "[19] The language of reasonable expectation is not statutory. It indicates an approach which can be taken to the characterisation, for the purposes of s 52, of conduct consisting of, or including, non-disclosure of information. That approach may differ in its application according to whether the conduct is said to be misleading or deceptive to members of the public, or whether it arises between entities in commercial negotiations. An example in the former category is non-disclosure of material facts in a prospectus. [20] In commercial dealings between individuals or individual entities, characterisation of conduct will be undertaken by reference to its circumstances and context. Silence may be a circumstance to be considered. The knowledge of the person to whom the conduct is directed may be relevant. Also relevant, as in the present case, may be the existence of common assumptions and practices established between the parties or prevailing in the particular profession, trade or industry in which they carry on business. The judgment which looks to a reasonable expectation of disclosure as an aid to characterising non-disclosure as misleading or deceptive is objective. It is a practical approach to the application of the prohibition in s 52. [21] To invoke the existence of a reasonable expectation that if a fact exists it will be disclosed is to do no more than direct attention to the effect or likely effect of non-disclosure unmediated by antecedent erroneous assumptions or beliefs or high moral expectations held by one person of another which exceed the requirements of the general law and the prohibition imposed by the statute. In that connection, Robson AJA in the Court of Appeal spoke of s 52 as making parties "strictly responsible to ensure they did not mislead or deceive their customer or trading partners". Such language, while no doubt intended to distinguish the necessary elements of misleading or deceptive conduct from those of torts such as deceit, negligence and passing off, may take on a life of its own. It may lead to the imposition of a requirement to volunteer information which travels beyond the statutory duty "to act in a way which does not mislead or deceive". Cicero, in his famous essay On Duties, seems to have contemplated such a standard when he wrote: "Holding things back does not always amount to concealment; but it does when you want people, for your own profit, to be kept in the dark about something which you know (and) would be useful for them to know." It would no doubt be regarded as an unrealistic expectation, inconsistent with the protection of that "superior smartness in dealing" of which Barton J wrote in W Scott, Fell & Co Ltd v Lloyd, that people who hold things back for their own profit are to be regarded as engaging in misleading or deceptive conduct. As Burchett J observed in Poseidon Ltd v Adelaide Petroleum NL, s 52 does not strike at the traditional secretiveness and obliquity of the bargaining process. But his Honour went on to remark that the bargaining process is not to be seen as a licence to deceive, and gave the example of a bargainer who had no intention of contracting on the terms discussed and whose silence was to achieve some undisclosed and ulterior purpose harmful to a competitor. [22] However, as a general proposition, s 52 does not require a party to commercial negotiations to volunteer information which will be of assistance to the decision-making of the other party. A fortiori it does not impose on a party an obligation to volunteer information in order to avoid the consequences of the careless disregard, for its own interests, of another party of equal bargaining power and competence. Yet that appears to have been, in practical effect, the character of the obligation said to have rested upon Miller in this case. [23] Reasonable expectation analysis is unnecessary in the case of a false representation where the undisclosed fact is the falsity of the representation. A party to pre-contractual negotiations who provides to another party a document containing a false representation which is not disclaimed will, in all probability, have engaged in misleading or deceptive conduct. When a document contains a statement that is true, non-disclosure of an important qualifying fact will be misleading or deceptive if the recipient would be misled, absent such disclosure, into believing that the statement was complete. In some cases it might not be necessary to invoke non-disclosure at all where a statement which is literally true, but incomplete in some material respect, conveys a false representation that it is complete."

Storm's Submissions

1. Storm submits that it had a reasonable expectation that the omitted investment matters would be disclosed to Mr Burns in circumstances where: 1. the defendants had made representations regarding the share price that Mr Burns would receive for his shares; 2. it would have been apparent to the defendants that Mr Burns was an inexperienced investor who trusted them; and 3. the timing of the issuing of the 15 million shares, so shortly after Mr Burns had transferred the purchase money, was deliberately into intended to withhold information which the defendants knew was material to the fundamental nature of the transaction; and the parties were not of equal bargaining power and confidence
2. Storm submitted that, once it is accepted that by 5 April 2017, material representations were made, individually or in combination, that: 1. others had agreed to invest $100,000, that Mr Tsingolis had (already) invested $600,000; 2. that the offer was for Mr Burns to invest at the 'ground level' price; 3. a representation was made that the opportunity might soon be lost because another investor might take the seed investment; but that 4. Unicar would honour its promise to Mr Burns that, should he wish to continue to invest, he could do so at the ground level prices, had Mr Burns been told that 15 million shares would be issued to a group of other investors for no monetary consideration, this would have represented a red flag to Mr Burns, causing him to question the reliability of the earlier assurances and to make further inquiry.
3. Storm submits that both Mr Tsingolis and Mr Radcliff knew that Mr Burns was unsophisticated and inexperienced and trusted and relied upon them and by their conduct they had disarmed him, or given him a false sense of security.

The defendants' submissions

1. The defendants say that the 'investment omissions' amounted, in substance, to no more than uncommunicated assumptions made by Mr Burns without any objective and rational basis in the context of discussions. They say that there could not be a reasonable expectation of disclosure in circumstances where Mr Burns abstained from making inquiries prior to his decision to invest. They say that there was no statutory obligation upon them to make disclosures under Chapter 6D of the Corporations Act.
2. In relation to one of the omissions, that Storm would not receive its shares at the same price paid by any other investor, then since Mr Burns could have known as at 13 April 2017 that another investor had received shares at $0.01, the allegation cannot stand. Mr Burns could also be taken to have known (and accepted) that others might receive shares in the company rather than monetary compensation for work done.

Mr Radcliff's separate submissions

1. Mr Radcliff said that to the extent that the investment omissions case was put against him, he was acting, and Mr Burns understood that he was acting, in the capacity as Unicar's solicitor; acting upon the instructions of Mr Tsingolis.
2. Mr Radcliff submitted that, on the basis of the received authority on non-disclosure cases, there could be no reasonable expectation upon him to disclose anything to correct, or arrest any antecedent erroneous assumptions which Mr Burns had in circumstances where Mr Radcliff did not know what assumptions he had - a result of Mr Burns not making inquiry of him. He placed particular reliance upon the email which Mr Burns' accountant, Mr Hawkins, sent to Mr Burns in early April 2017.
3. In reference to the putative omitted matter relating to the shares being issued to other investors for nil consideration, Senior Counsel for Mr Radcliff submitted that it was not a fair comparison, between the cash offer made to Mr Burns and the sweat equity offer made to other investors. Mr Burns knew, or must have been on notice, that others (including Mr Radcliff) had helped the start-up company and that he had no entitlement to presume that the terms of equity (including the price of the shares) would be the same as that which was offered to him, being a friend of the company's founder, Mr Tsingolis.

Determination

1. The principles in Miller referred to indicate the overriding significance of context. The context here included the prospective investment by a friend of the founder of Unicar. The founder, Mr Tsingolis was an experienced businessman and property developer who wore the trappings of success conspicuously. He had, at his side, Mr Radcliff, an experienced commercial lawyer, who (to someone like Mr Burns) lent an air of credibility to Mr Tsingolis' promotional efforts. Both of them were promoting a concept which was something of an adaptation of Uber's successful business model, but had a philanthropic benefit of aiding university students.
2. I find that in the context of discussing Unicar, Mr Burns did seek to impress Mr Tsingolis and Mr Radcliff as coming from a background of significant family wealth, and that he did indicate that he had the means and authority to make an investment on behalf of the family in the start-up business. I do not however, find that Mr Burns made any representation or statement capable of reasonably conveying to Mr Tsingolis or Mr Radcliff that he was an experienced investor (generally) or experienced in investment in start-up businesses specifically. To some degree, I consider that Mr Burns looked up to Mr Tsingolis and may even, at a sub-conscious level, he wanted to show off to him. I think it is most likely that it did not take very long for Mr Tsingolis and Mr Radcliff to discern that Mr Burns was a novice in making investments generally and investment decisions in start-up businesses in particular.
3. Another significant part of the context was Mr Burns' refusal to obtain independent financial and legal advice. What was significant here, on this aspect of the case, was what Mr Tsingolis and/or Mr Radcliff knew about this topic. In my view, from their respective perspectives, there was ambiguity. I accept that Mr Radcliff had suggested to Mr Burns (as he had for Mr Yates) that independent advice be obtained. The correspondence which Mr Burns sent to Mr Radcliff in early April 2017 did not clearly indicate, one way or the other, whether Mr Burns was in fact in receipt of, or in the process of obtaining independent advice on the mertis of this investment. Mr Radcliff was not, of course, privy to what Mr Burns' accountant, Mr Hawkins, was imparting. To some extent, some of the questions which Mr Burns raised of Mr Radcliff in his email correspondence might have suggested that the former was not receiving independent legal advice, but there was nothing to indicate whether he had or had not obtained independent investment advice on the merits of the prospective investment. In my view, given that I have found that Mr Radcliff did in fact suggest to Mr Burns that he receive independent financial advice, I do not consider that it was unreasonable for Mr Radcliff to assume, as he said he did, that Mr Burns would be obtaining independent advice, be it legal or accounting.
4. A final part of the context is that, as I have found, representations were made earlier in or between February and April 2017. To some extent, they were representations as to the future. The latter were continuing in nature and, to that extent, required correction lest later events or circumstances falsify them.
5. Turning to the plaintiff's case on non-disclosure, the High Court in Miller emphasised that what is sometimes alleged as something that required disclosure is simply another means of saying that what was previously represented was misleading or deceptive and all that a non-disclosure case amounts to is another way of saying that a past representation was untrue.
6. Generally, in my view, much of what was said by Storm to have required disclosure are matters which, in substance, either would have revealed the truth of misrepresentations or were matters, which, if disclosed, would have corrected or qualified earlier representations which were, by their nature, current in a way that might have prevented Storm being led into error.
7. So, in dealing with each of the alleged Omitted Investment Matters, as summarised in paragraph 201 above, in my opinion, the matters in [a], [b] and [d(i)-(ii)] in paragraph 201 above are simply another way of stating that representations that had been made were false. These do not add anything of substance to the existing misrepresentation case.
8. As to the alleged Omitted Investment Matter (c) in paragraph 201, to the extent that they concerned Mr Radcliff's indirect shareholding in Unicar, this matter is simply another way of saying that this matter needed to be disclosed in order to effectuate a qualification or correction of an earlier representation (Mr Tsingolis' representation on 5 April 2017) which was apt to lead Storm into error. I have also dealt with this previously.
9. Dealing with the alleged Omitted Investment Matters in [d(iii)-(vi)], [e] and [f] of paragraph 201, these were, by their nature, the legal effects or consequences of the transactions. They were, in my view, matters which it would not be reasonable to expect promoters to disclose to Mr Burns in the context I have described. Put another way, they were the sort of matters that a diligent independent legal adviser would, upon due inquiry, have likely have discovered and reported to the investor client. In the circumstances that it was made apparent to Mr Burns that Mr Radcliff effectively disclaimed giving legal (and financial) advice, and Mr Burns had not given any indication that he sought advice from him, or Mr Tsingolis, I do not consider that there was any reasonable expectation that Mr Tsingolis or Mr Radcliff would disclose these particular matters.
10. In short, I am not persuaded that the non-disclosure case either adds anything to the existing representation case or, in the limited case that it does, that the non-disclosure case is made out.
11. I add that if such a case was viable, a question would arise as to who fell under an obligation of disclosure.
12. In my view, and bearing in mind that the principle of disclosure, in this context, is to 'mediate' or correct earlier misleading conduct (through misrepresentation), it is necessary for the person who made the (past) misrepresentation to carry the obligation to disclose. It must be the case that the person under the obligation to disclose must have known that an earlier (mis)representation (or continuing representation which requires correction or qualification) was made, known of its materiality and therefore known that the representee might rely upon it.
13. The only misrepresentation, as I have found, made by Mr Radcliff concerned the 1 March 2017 email. That was directed, in substance, to the presence of an unidentified investor who was likely, at about the time of the representation, to have claimed the balance of seed capital that Mr Burns was considering he might partially acquire. There was no suggestion that this investor was one of the investors who acquired shares as part of the 15 million allotment on 1 May 2017.
14. Further, I am not satisfied that Mr Radcliff knew of the misrepresentations that I have found were made by Mr Tsingolis. That being so, I do not find that disclosure by him of the share issues to other investors was required to arrest or cure the earlier misleading conduct by Mr Tsingolis.
15. If I am wrong as to my findings on this aspect of the case, any obligation to disclose would only have fallen upon Mr Tsingolis.
16. I reject Storm's non-disclosure case.

General

1. For the purposes of s 2 of the ACL and s 79 of the Corporations Act, it was necessary for Storm to prove that Mr Tsingolis and Mr Radcliff respectively knew of the essential elements of the contravention by Unicar, at the time of the contravention, and intentionally participated or assisted in the contravening conduct [20] . This required Storm to prove, relevantly, that, insofar as I have found that they each made certain misrepresentations, they respectively knew that the representations were false or misleading. It is accepted that 'knowledge', in this context, must be actual; and not constructive [21] .
2. In circumstances where Storm relied upon a direct case of misrepresentation against Unicar (and or non-disclosure) and where it was common ground that this could give rise to liability in Messrs Tsingolis and/or Radcliff personally and in Unicar, I initially struggled to understand what was to be gained by an additional case that both individual defendants were accessories to Unicar's contravention of s 18 of the ACL.
3. To take Mr Tsingolis case, the steps in Storm's argument are that: 1. Mr Tsingolis engaged in misleading or deceptive conduct (by making the '$600,000 representation', the 'other investors had agreed to invest $100,000 representation', and other representations which were later falsified); 2. Unicar is also [22] taken to have engaged in misleading or deceptive conduct because of Mr Tsingolis' conduct engaged in on its behalf and within the scope of his authority; and 3. Mr Tsingolis was involved in Unicar's misleading or deceptive conduct.
4. The same arguments apply, in principle, to the case against Mr Radcliff, to the extent that I have made a finding that he also engaged in misleading or deceptive conduct.
5. Ancillary liability arises where there are, in substance, three persons [23] . First, there is the injured person, the claimant; secondly, there is a primary contravener; and thirdly, there is an accessory who, by reason of having engaged in any of the species of conduct set out in s 2 of the ACL, is "involved" in the primary contravener's contravention. Here, Unicar is posited as a primary contravener, but that is only because the misleading or deceptive conduct of Mr Tsingolis (or Mr Radcliff) which, in addition to grounding his direct liability, is also imputed to Unicar. To my mind, it is counter-intuitive that Mr Tsingolis (who has been, on the stated premises, found to be directly liable) could also be an accessory to conduct he engaged in which, by operation of law, is also imputed to Unicar.
6. The position is different if it was argued that Mr Tsingolis was an accessory to misleading conduct by Unicar that was attributable to misleading or deceptive conduct by Mr Radcliff, or vice versa. That case was not put with much vigour, although it was put and I will return to it below.
7. Contrary to my intuition, there is authority that would permit Mr Tsingolis and Mr Radcliff to be liable in this way. In Hamilton v Whitehead (1988) 166 CLR 121, a managing director whose conduct constituted the commission by the company of an offence was convicted as being an accessory to the company's contravention. He was treated as the embodiment of the company and the High Court determined that it would be contrary to the purpose of the legislation if the "hands and brains" of a company was not personally accountable for breaches of the legislation which they themselves have perpetrated. However, here the hands and brains of the company - Mr Tsingolis and (albeit to a much lesser degree) Mr Radcliff are being made personally accountable for their direct contraventions of the legislation.
8. Initially, I questioned whether the issues associated with accessorial liability are unnecessary to consider. If my findings that Mr Tsingolis, and Mr Radcliff, engaged in misleading or deceptive conduct are correct, then they, and Unicar, would have contravened the statutory proscription and are exposed to remedies. No additional remedies would be available to Storm by establishing that the individual defendants were involved in the corporate defendant's contravention than presently arise on the basis of findings of their direct liability. But if I have erred in my findings of their respective individual liability, then Storm's argument about accessorial liability must fall away because they would not have established the existence of a primary contravener, Unicar, in respect of whom Messrs Tsingolis and Radcliff are alleged to be accessories.
9. However, as will become apparent, one of the remedies under consideration is whether an order for (practical) rescission might be made (under s 237 of the ACL). In that context, it may be relevant to the grant of that remedy whether a misrepresentation is innocent or fraudulent [24] .
10. In relation to Mr Tsingolis' misrepresentations, these were representations of present fact. Mr Tsingolis founded the company. He was its promoter. He took the lead in attempts to acquire capital for Unicar. In my view, no other inference is capable of being drawn that he knew the falsity of his representations, as at February 2017, that he had invested $600,000 and that other persons had agreed to invest $100,000.
11. I find that he was knowingly concerned in Unicar's contraventions of s 18 of the ACL by reason of the making of these representations.
12. The other misrepresentation I have found in relation to Mr Tsingolis concerned a failure to correct or qualify an earlier representation made on 5 April 2017. In my view, it is not established that Mr Tsingolis knew that there was a need to correct or qualify the representation.
13. To the extent that it is suggested that Mr Tsingolis was an accessory to Mr Radcliff's misrepresentation on 1 March 2017, no submission was made in those terms and no evidence supports it.
14. In relation to Mr Racliff's misrepresentation, it will be recalled that his misleading conduct was deemed to have arisen from there being an absence of reasonable grounds for the making of his prediction. In my view, however, it is not established that he knew that there was an absence of reasonable grounds for that prediction. The evidence was too slight to admit of such conclusion (noting the high standard of proof required for such an allegation).
15. To the extent that it is suggested that Mr Radcliff was an accessory to Mr Tsingolis' representations, it has not been established that he knew of them being made.
16. As I have rejected Storm's non-disclosure case, there is no occasion to consider Mr Tsingolis' or Mr Radcliff's knowledge about the 'Omitted Investment Matters.'

Principles

1. I have previously summarised the principles relating to causation in this statutory context [25] , which I essentially adopt again here: 1. Section 236(1) of the ACL (relevantly) confers an entitlement to damages upon a person who suffers (economic) loss or damage "because of" a contravention of the prohibition (in s 18 of the ACL) against misleading or deceptive conduct. The principles that guide me when considering this requirement are as follows. 2. This provision connotes a requirement for a claimant to establish a causal connection between the misleading or deceptive conduct and the claimant's loss or damage. It does not, by its terms, speak of 'reliance'. Nevertheless, in a context where the contravening conduct is said, as it was here, to be a misrepresentation to an individual (intended to induce a course of action), it is accurate enough, at least in practical shorthand terms, to speak of 'reliance' as being the relevant test (Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525.9). 3. There is authority, dating back to the cases involving the torts of deceit and misrepresentation, which has been applied in this statutory context, that reliance may be established on the basis that if a material representation is materially likely to induce a representee to enter into a contract and the person actually enters the contract, a fair inference arises that the representation operated as an inducement: Gould v Vaggelas (1985) 157 CLR 215. The plaintiff relies upon this inference in this case to say that it was induced to enter into franchise deeds (and otherwise incurred expenditure) on the faith of a represented timeframe estimate that was intended (by Jump) to be relied upon by H20. 4. However, in Campbell v Backoffice (2009) 238 CLR 304, the plurality (at [143]) had this to say about this inferential process of reasoning: "First, it is a proposition expressed in relation to the law of deceit, not the operation of statutory provisions the award of damages suffered by contravention of consumer protection provisions proscribing misleading or deceptive conduct. Secondly, the proposition carries within it a number of subsidiary questions, such as what is a "material" representation, and when is a material representation "calculated" to induce entry into a contract. Thirdly, because the proposition is directed to the drawing of inferences, consideration of its application must always attend closely to all of the evidence that is adduced that bears upon the question being examined." (emphasis supplied) 1. The misleading conduct needs only to have 'materially' contributed to the loss or damage suffered, even where other factors (including the claimant's own conduct) have played a more significant role (Henville v Walker (2001) 206 CLR 459 per McHugh J at [105]). Another way of expressing the same point is to say, as Gaudron J did in Kenny & Good Pty Ltd v MGICA (1992) Ltd (1999) 199 CLR 413 at 425-426: "When a person claims to have taken, or refrained from taking, a particular course of action in reliance upon another's representation, the critical question, assuming the representation is one that might reasonably be relied upon, is whether, but for that representation, he or she would have taken that action. In that context, 'but for' does not signify a sine qua non or causative factor which, although necessary, is not sufficient to produce the result in question. Rather, it signifies the decisive consideration or one of the decisive considerations for taking the course of action in question." (emphasis supplied) 1. It is also well-established that, in this statutory context, it is inessential that the misleading or deceptive conduct (here a misrepresentation) be the sole cause of the person's loss or damage. Moreover, subject to a qualification, it is not even essential that it be shown that representee acted reasonably in protecting its interests, in order for the causal connection to be established (Henville v Walker (2001) 206 CLR 459). 2. The test for causation is subjective. In Campbell, French CJ said (at [28]): "Determination of the causation of loss or damage may require account to be taken of subjective factors relating to a particular person's reaction to conduct found to be misleading or deceptive or likely to mislead or deceive. A misstatement of fact may be misleading or deceptive in the sense that it would have a tendency to lead anyone into error. However, it may be disbelieved by its addressee. In that event misstatement would not ordinarily be causative of any loss or damage flowing from the subsequent conduct of the addressee." 1. I repeat the authority of Rosenberg v Percival (2001) 205 CLR 434 (endorsed later by the plurality in Campbell at [146]), raised earlier, about the weight that can be ascribed to statements of subjective understanding and intention by an injured claimant, after the event. (This explains why, on causation matters in another context, statements after the event of harm as to what a claimant would have done is inadmissible; unless they constitute admissions (s 5D(3)(b) of the Civil Liability Act 2002 (NSW)).

Mr Burns

1. In his first affidavit, Mr Burns noted that as at February 2017, he had not invested in any other 'start-up' businesses. Although he had inherited a very substantial share portfolio from his later mother (who died whilst he was very young), that had been managed by his grandmother so his experience of investing in shares or making financial analysis was limited. At this point, I interpose that in cross-examination he did indicate that he had undertaken some study of macroeconomics and applied finance but that was brief. At any rate, he says that in February 2017 he heavily relied upon Mr Tsingolis and Mr Radcliff in deciding whether to go ahead with the investment. He also relied on the fact that Mr Tsingolis had said that he had invested himself, as had others, and that he was being offered the same prices as them. He deposed that he did not know what the 'ground level prices' were (in amounts) but he surmised that they were the share prices that the original investors, including Mr Tsingolis, had paid for their shares. He believed that if he decided to go ahead with the investment, it would be on the same basis as the other investors.
2. It was put to Mr Burns by Senior Counsel for Mr Radcliff that he was aware that Unicar was looking to raise millions for capital and that this would necessarily mean that other investors, apart from himself and Mr Tsingolis, would be sought. Mr Burns indicated that he did not turn his mind to this matter. He accepted that in no correspondence which he had with Mr Radcliff did he refer back to his beliefs about other investors investing sums of $100,000, or any statements Mr Radcliff had made back in February 2017. He accepted that he gave no indication that he sought further information or advice from Mr Radcliff about his shares in Unicar or its management. He said it did not occur to him that he needed advice.
3. Mr Burns deposed that after the conversation with Mr Tsingolis on 5 April 2017, he was satisfied that Mr Tsingolis was going to honour the offer of ground level prices for his investment; a promise which was important to him. The fact that other people were investing but would have to pay twice the price he was being offered was also reassuring.
4. Mr Burns made his decision to invest and effectively committed himself to it after the conversation on 5 April 2017. He deposed in his principal affidavit that at the time he paid the sum of $300,000, Mr Burns believed and relied upon what Messrs Tsingolis and Radcliff had told him about the circumstances of the company, the nature of his investment, the demand from other investors and the need to move quickly to buy the shares the same price paid by the original investors. He believed and understood that he was getting half the number of shares that Mr Tsingolis held as he was investing half of what he understood was the size of Mr Tsingolis' investment ($600,000) and that he was getting the same price per share.
5. He deposed that he specifically relied upon representations made during the February 2017 presentation, the content of Mr Radcliff's email of 1 March 2017 (which he interpreted as an indication that Mr Radcliff and Mr Tsingolis were soon to meet with another investor who would take out the remaining seed investment round available) and statements made by Mr Tsingolis on 5 April 2017 that even while the share price was increasing, Unicar would honour the original offered price for any investment he might make. He deposed that if these representations had not been made he would not have made his investment. He added that he trusted Mr Tsingolis and Mr Radcliff and did not believe that it was necessary to obtain legal advice about the proposed agreement. He believed that he would be investing at the same price per share that Mr Tsingolis had paid for shares. He was only disabused of this belief in September 2017.
6. Mr Burns' cross-examination was punctuated by repeated questioning as to what inquiries he failed to make (including, but not limited to the ASIC register), what documents he did not ask for, the extent to which he read the share issue agreement and what advice he failed to seek. Mr Burns accepted that he knew that the investment might fail. He appreciated that he was investing in a 'start-up'.
7. He accepted in cross-examination by Mr Radcliff's Senior Counsel that he did not care how Mr Radcliff was to be remunerated - whether in shares or in cash. He said it did not occur to him whether his investment of $300,000 would, with Mr Tsingolis' investment of $600,000 provide sufficient capital for the business to get off the ground.
8. Mr Burns said he did not ask Mr Radcliff what he was going to be paid or if Mr Radcliff had any shares. He did not ask Mr Tsingolis whether he would have shares. He did not ask anyone what percentage of the share capital in Unicar he would effectively own.
9. It is clear that he made none of the queries which his accountant, Mr Hawkins, suggested that he might consider. As to whether Mr Hawkins might have been a source for information, Mr Burns said the former had made it clear that his role was limited to helping Mr Burns set up his company as the investment vehicle.
10. Mr Burns did say that he had made the decision to invest, and the amount of that investment, after the February 2017 meeting. The investment had a philanthropic appeal to him. He accepted that there was a period of weeks between the time when the alleged representations were made in February 2017 and the time he discussed them with his accountant.
11. He accepted that he was prepared to take the risks associated with making a substantial investment. It was his first investment. Much of the thrust of the questioning of him was encapsulated in the exchange with Counsel for Mr Tsingolis, which was to the effect that he liked and trusted Mr Tsingolis and liked the idea of Unicar; because of which, Mr Burns did not think he needed advice and, at least in relation to his uncle, he was prepared to disregard contrary advice. It was put to Mr Burns, although Mr Burns rejected the suggestion, that he only brought his complaint after speaking with family members and his lawyer in September 2017.

Mr Tsingolis

1. In his affidavit, Mr Tsingolis deposed that he had made it clear to Mr Burns, on several occasions, that he needed to obtain his own independent legal and financial advice. He annexed to his affidavit a range of text messages he received from Mr Burns which were indicative of the latter receiving professional assistance of an accountant. This confirmed in Mr Tsingolis the belief that Mr Burns was receiving appropriate investment and legal advice.

Storm's Submissions

1. Storm submits that the Court should accept Mr Burns' evidence that he relied upon the representations in the sense that he would not have invested in the company but for those representations and the investment omissions. It also submits that even without such direct evidence, the Court could infer reliance in circumstances where the misleading or deceptive conduct was intrinsically likely to and objectively intended to induce Mr Burns and thereby stormed to invest in Unicar.
2. It submits that even if one omission (let alone multiple omissions) had been disclosed to Mr Burns and Storm, it was improbable that Mr Burns would have proceeded with his investment at least without making further and detailed inquiries.
3. It submits that any lack of vigilance on Mr Burns' part was explicable by the trust he reposed in the defendants and was not relevant to or in any way diminished his reliance upon the misleading or deceptive conduct.
4. At the level of principle, I was referred to observations made by McDougall J in Adcock Private Equity v Porges [2018] NSWSC 1363 at [156]-[158] about reliance. These indicated that not only could reliance be inferred where statements are made intended to induce a course of action, but, perhaps more pertinently, it was not necessary that the plaintiff should be vigilant in protecting its own interests. The statutory proscription against misleading or deceptive conduct, and prescriptions for remedies existed to protect the careless and the careful.
5. Reference was made to the views of McDougall J in another case, Ingot Capital Investments v Macquarie Equity Capital Markets & Ors [No.6] [2007] NSWSC 124, where it was found that a claimant (effectively a successful businessman) improbably or implausibly failed to check or inquire representations made; which facilitated the conclusion, on the facts, that the plaintiff did not establish reliance. That was not the case here, where, whatever Mr Burns said about himself in terms of his experience (a contested matter) to Messrs Tsingolis or Radcliff, he was not, subjectively, an experienced investor (generally) or for this type of investment in particular. Senior Counsel submitted that this was not a case where the impugned representations were so implausible or improbable that a person in this investor's position would not rely upon them.
6. Senior Counsel for Storm effectively flipped the contention of the defendants' contention about Mr Burns' failure to inquire against them to suggest that it buttressed the argument on reliance: such failure occurred because he reposed faith in the correctness of what he was told by them.

The Defendants' Submissions

1. The defendants accept that although 'reliance' is common enough to suffice to establish the causal connection between misrepresentation and loss, reliance must take into account the fact that the representee must exercise reasonable care for their own interests.
2. Senior Counsel for Mr Radcliff submitted that Mr Burns, and Storm, was responsible for its own loss. Mr Burns took no care to check matters and was indifferent to them. He acted contrary to professional and (to some extent) family advice. Indeed, the circumstance that Mr Burns acted contrary to the advice of his uncle (not to make the investment) negated any reasonable expectation which Mr Burns could have had that Mr Radcliff would disclose anything to him
3. The defendants submitted that statements as to reliance made by Mr Burns were self-serving and of limited weight.
4. In relation to the 'investments omission' case, the matters, even if they had been disclosed, would have made no impression on Mr Burns mind when considering whether to invest. Mr Burns simply "liked the man (Mr Tsingolis) and the idea" and would have invested anyway.

Determination

1. Storm's case is a 'no transaction' case: it would not have made the investment but for the misleading or deceptive conduct of Unicar, through Mr Tsingolis and Mr Radcliff.
2. I accept that what was material and which actuated Mr Burns' decision to invest was a combination of matters: the confidence that the founder had invested a substantial sum of money; the confidence that other investors had agreed to invest substantial monies; the concern (from 1 March) that an investor with whom Mr Tsingolis and Mr Radcliff would imminently meet might acquire the round of seed capital if Mr Burns did not commit to make the investment. This email also would have instilled further confidence in Mr Burns in Unicar as it conveyed that aside from those investors who, to that point, had agreed to invest, there was another one likely to do so soon. In that sense, it was similar in effect to Mr Tsingolis' representation that others had agreed to invest, although not as definitive. Finally, there was the reassurance (from 5 April) that with the prospect of a rising share value, if he committed soon, he would do so at a cheaper price than other investors, like him who had the opportunity to invest as part of this round.
3. All these representations were intended to and did induce Mr Burns to make the investment. Individually, or in combination, they all materially contributed to that decision. However, as the authorities I referred to earlier suggested, it is unnecessary to pinpoint a single instance of misleading or deceptive conduct as being the sole reason for the decision to invest.
4. Notwithstanding a natural reservation of statements made after the event by a harmed claimant, I accept the evidence of Mr Burns - who I have accepted to be a witness of credit - when he says that he relied upon these representations.
5. I do not accept that any lack of inquiry and general lack of curiosity on Mr Burns' part amounted to such indifference as to sever the causal connection between the misleading or deceptive conduct and the loss or disadvantage caused. As the authorities plainly indicate, the consumer, or investor, protections in the ACL and Corporations Act are intended not simply to protect the astute and careful, but also the ignorant, inexperienced and careless [26] .
6. I explore further below the question of how any degree of carelessness may affect the remedy which Storm should receive. But in my view, such carelessness as was exhibited by him was significantly influenced by what I consider Senior Counsel for Storm accurately characterised as a 'disarming' environment; so that it cannot be said that the causal connection is severed as a result of such carelessness.

Jurisdiction to order relief

1. By its pleading, Storm seeks damages under s 236 of the ACL and s 1041I of the Corporations Act. If, as I have found, Storm is entitled to bring a claim for damages under the Fair Trading Act, there is no dispute that the Court has jurisdiction to make such order for damages under s 236, within the monetary limits of this Court's jurisdiction.
2. I note, however, that Storm also seeks relief under s 237 of the ACL, being compensation and an order (s 243) to avoid the Share Issue Agreement. The last relief is analogous to relief for rescission in equity.
3. There is a question whether this Court has jurisdiction to grant relief under s 237 (and s 243) of the ACL as part of Storm's claim for relief under the Fair Trading Act.
4. Before me, Senior Counsel for Mr Radcliff initially accepted (T 382) that in circumstances that the quantum of Storm's claim for damages fell within the Court's monetary jurisdiction, the Court had jurisdiction to make a statutory order against Unicar analogous to rescission under ss 237 and 243 of the ACL. However, the concession was withdrawn after judgment was reserved, and Senior Counsel submitted that the Court had no jurisdiction to award relief under s 237 of the ACL, as it was applied by the Fair Trading Act. Senior Counsel cited, as authority, the decision of Parker J in The NTF Group v PA Putney Finance Australia Pty Ltd [2017] NSWSC 1194 at [52].
5. The observations of his Honour were made in the context of what was then a controversy as to the extent of this Court's jurisdiction to deal with 'commercial transactions'. That controversy has now passed following amendment to s 44 of the District Court Act, which came into effect in November 2018 (before the commencement of this proceeding). What his Honour said in The NTF Group must be seen in that context.
6. At any rate, his Honour's decision has to also be read in the light of the circumstance that in NTF Group, no monetary claim (within the limits of the Court's monetary jurisdiction) was sought ([6]). If it had been, it appears that his Honour's analysis (at [53]-[58]), based as that analysis was upon s 135 of the District Court Act 1973 (NSW), recognised that once a monetary claim is made under s 236 of the ACL, within the limits of this Court's jurisdiction, for damages under the Fair Trading Act, then the Court has jurisdiction to grant non-monetary relief under s 237 (and s 243) in connection with that claim. If, however, I am wrong in my interpretation of his Honour's observations, I would, with respect, have preferred the views expressed by White J (as his Honour then was) in Provectus Care Pty Ltd v Epicor Software (Aust) Pty Ltd [2009] NSWSC 1281 at [6], and N Adams J in K & M Prodranovski Pty Ltd v Northshore Car Rentals Pty Ltd [2017] NSWSC 625 at [28] & [31] which were cited in Parker J's reasons, and which endorsed the Court's jurisdiction to grant non-monetary relief under s 237 where a claim for damages was made pursuant to s 236, within the monetary limits of this Court's . That non-monetary relief includes the statutory form of relief akin to rescission under s 243; noting that that kind of relief is not simply coterminous with the equitable remedy of rescission.
7. Storm, with leave, responded to Senior Counsel for Mr Radcliff's citation of NTF Group, by referring me to a decision of Montgomery DCJ in Structum Pty Ltd v Basilios Mihalopoulos & CWCN Pty Ltd [2019] NSWDC 119, which was delivered subsequent to the amendment of s 44 of the District Court Act in late 2018. At [98]-[101]), his Honour affirmed this Court's jurisdiction to grant relief under s 237 in relation to a money claim where the claim does not exceed the Court's monetary jurisdiction. I respectfully agree with his Honour's analysis.
8. I find that in the circumstances of this case, where Storm has brought a claim for damages for a sum falling within the Court's monetary jurisdiction under s 236, the Court has jurisdiction to grant non-monetary relief under ss 237 and 243 of the Australian Consumer Law, as applied under state law by the Fair Trading Act.

Assessment of damages - s 236

1. I did not understand Messrs Tsingolis or Radcliff to dispute that they could be personally amenable to an award for damages for contravention of s 1041H of the Corporations Act. I consider that position correctly reflects the legal position [27] . The terms of ss 236 and 237 plainly indicate that orders for damages may be made against the individuals and the company.
2. The authorities indicate that principles applicable to the recovery of damages in common law are not automatically transposed to the assessment of damages for provisions like s 18 of the ACL or s 1041H of the Corporations Act. As was said by the plurality in Marks v GIO Australia Holdings (1998) 196 CLR 494 at [47]-[56], the central idea in the assessment of damages is that the plaintiff has sustained a prejudice or disadvantage as a result of altering his or her position under the inducement of misleading or deceptive conduct. This requires the Court to assess the value of what was acquired and compare it to what was paid. This reflects the familiar Potts v Miller [28] principle. The plurality in Marks went on to say that value is to be assessed objectively. It is a matter of determining how much worse of the contravening conduct has left the party: it is not sufficient that a party made a contract different to that which was represented.
3. Two further related points might be made about the Potts v Miller standard as it may apply to assessment of damages under s 236. First, ordinarily, value is assessed as at the date of acquisition of the property [29] . But that rule is not inflexible; and the authorities recognise that value can be assessed as at the date of trial particularly where, by reason of the unlawful conduct, a purchaser is locked into the property [30] . Secondly, the reason for the usually applicable rule of choosing the date of acquisition to assess value is to separate loss of value from extraneous events. It is well accepted that subsequent events may be looked at in so far as they illuminate the true value of the property acquired at the date it was acquired and a distinction is drawn between events that arise from the inherent nature of the property and subsequent events that may affect value but which arise from supervening sources. The distinction is exemplified by subsequent takings of a business being ordinarily admissible, even if there is a difference in trading conditions, but being inadmissible if the change in takings results from ineptitude of unexpected competition [31] .

Discretion to grant relief under s 237

1. Insofaras the position under s 237 of the ACL is concerned, it has been described as conferring upon a Court a 'remedial smorgasbord' [32] . There is still a gateway requirement to prove that a claimant has suffered loss or damage (or likely loss or damage), and the purposes in granting such relief is to either compensate the claimant, or prevent the damage likely to be suffered (s 237(2)). However, it is not necessary to quantify that (actual or likely) loss or damage [33] . Further, the 'loss or damage' referred to in s 237 is not confined to financial loss - it can include non-pecuniary damage [34] . It does not matter if a claimant's entry into a contract might not be financially disadvantageous at the point of entry and before the claimant rescinded the contract [35] . Relief under s 237 is not, however, intended to put the claimant in a better position than it would be in had no contravention occurred [36] .
2. By the combined operation of ss 237 and 243, the Court's powers extend to granting a form of rescission. The form of rescission which the Court might make in its discretion under ss 237 and 243 can amount to an effective endorsement of the action of the contracting party in asserting its right to rescind a contract for misleading or deceptive conduct [37] .
3. In granting relief under s 237, it has also been emphasised that the Court is not limited to general law analogies, but its discretion to be exercised by reference to the facts of the particular case, the policy underpinning the legislation and an evaluative assessment of what is the appropriate relief to compensate for, or prevent the likely suffering of loss or damage. This approach is not confined by the mechanical operation of the factual causation element (i.e. the 'but for test') that might be applicable to claims for damages under s 236 [38] . Rescission might be partial. As Mason P said in Akron Securities in relation to the predecessor to s 237, the remedial response under that provision should be "proportionate" to the wrong, without necessarily having to reflect the extent of the claimant's loss; and it also means that just as a claimant may choose the best remedy available, there is also no reason why if a claimant has recourse to s 237 (instead of s 236), a defendant should not also be able to invoke certain matters in defence [39] .
4. Under general law, where a contract is rescinded, the purchaser cannot recover both its purchase price and the damages representing the difference between the purchase price and value of the property acquired [40] .
5. It has been a form of relief that has previously been granted where it has been difficult for the Court to assess the 'real' value of property purchased in the claim for damages. In Morellini v Adams [2011] WASCA 84, this relief was granted in not dissimilar circumstances to this case where a claimant advanced a 'no transaction' case involving the purchase of unlisted shares.

The financial position of Unicar

1. Storm did not seek to prove what Unicar's share value at the date it acquired its shares, being in May 2017. Instead, it relied upon subsequent events, provable at trial, to establish that what it acquired was of no or negligible value so that the damages it may recover under s 236 represents the full purchase price, $300,000, which it paid for them.
2. Storm's case is that through careful analysis of Unicar's records, it is evident that it is being propped up by unwarranted tax refunds paid to the company by the Australian Taxation Office and occasional injections by Mr Tsingolis himself. Mr Burns asks the Court to draw adverse inferences from the disordered state of financial information and certain irregularities within the documentation that has been provided. In effect, it is submitted that what Storm has acquired is worthless.

Position as at end of financial year 30 June 2019

1. Mr Burns place reliance upon a special purpose financial report prepared for Unicar for the end of financial year 30 June 2019. The features of that report indicated that:

• no revenue had been received;
• the company had had trading losses for both the 2017/2018 (over $1 million) and 2019 (nearly $720,000) financial years;
• accumulated losses for the company, as at the end of the 2018/2019 financial year, was aggregated to a sum of just over $1 million; and
• the largest single expense item was for 'professional fees' being approximately $855,000 in 2018 and $549,000 in 2019. Notes to the financial statements indicate that the vast preponderance of those professional fees were 'Consultancy fees'. (A very large series of payments were made to one of Mr Tsingolis' companies, Billabong Estate, over a period of 9 months (15 September 2017 to 26 June 2018), amounting to $394,625.)

1. Initially in cross-examination, Mr Tsingolis said that the company does not actually have any employees. After he was confronted with a bank statement recording a transaction for 'wages', Mr Tsingolis later said that the company had employees and not just consultants.

The development of the App

1. The only substantial asset disclosed on the balance sheet was 'App development' (which had been valued at about $2.5million). However, Mr Tsingolis accepted that the Singaporean company, Aurlev Holdings Pte Ltd owned the intellectual property rights to the App, upon which Unicar's business model depended. He was unable to explain how an asset which belonged to Aurlev Holdings could be accounted for as an asset of Unicar. Senior Counsel for Storm put to Mr Tsingolis that every dollar spent on App development was, effectively, to the benefit of Aurlev Holdings (directly) and himself (indirectly). There was no real answer to that proposition.
2. Further, Mr Tsingolis complained to one of the App's developers, Tryangled, in October 2018 that the App was not functional at that point in time. That disappointed Mr Tsingolis because it appeared to him that the App was still experiencing the same issues and technical glitches that Unicar had thought had been addressed during the Commonwealth Games 'soft launch'. He complained that Unicar could not be operational without a fully functioning app.
3. Senior Counsel for Mr Burns put it to Mr Tsingolis that once this asset was removed, Unicar was hopelessly insolvent.
4. Mr Tsingolis was taken to the company's bank account statements. Notwithstanding extensive reference to other expenses, which appeared to relate to dining and personal matters, there was little, if any, reference within them to spending on the App development. Mr Tsingolis said that payments for the App development were made by himself, through his other businesses and his personal accounts.
5. Mr Tsingolis said in re-examination that Unicar's prospects generally had come to a 'standstill' after Storm had brought its claim. Mr Tsingolis said that he felt duty-bound to disclose to investors that Storm had brought this action and implied that this had turned off potential investors. He did not point to any written disclosure of this (say, by text or email). I note, by way of contrast, that in his email message to one of Unicar's app developers (Tryangled Solutions Private Ltd), in October 2018 (two months before this proceeding commenced) it appeared that Mr Tsingolis attributed the loss of potential investors more to a lack of operational capacity due to problems with its App.
6. In response to this evidence, Senior Counsel for Storm was granted leave to further cross-examine Mr Tsingolis on this topic. He was referred to a July 2018 Information Memorandum for Unicar which was prepared (if not necessarily disseminated). There was no reference, within the 'Risk factors' to the potential consequences of Storm's claim. (Mr Tsingolis indicated in an answer to a question from myself that no provision was made in Unicar's accounts for any prospective liability to Storm).
7. In his second affidavit, Mr Radcliff deposed to the development of the Unicar app. He said that he spent much time in the financial year ended 30 June 2018 attending investor meetings and providing general advice to Mr Tsingolis about the development of the company's App. He referred to the testing of it during the Commonwealth Games on the Gold Coast in 2018, and liaising with Loop Labs Australia, the developer of the App. He recalled a live testing of the App with approximately 10 vehicles (rented by Unicar) and provided to volunteer drivers to provide free rides to customers. He thought that the testing indicated the viability of Unicar's business model.
8. He deposed that he now thinks that Unicar's business is ready to launch, but he also thinks it requires further capital. He corroborated some evidence given by Mr Tsingolis (in the latter's re-examination) when he deposed that the latter told him that potential investors may be now cautious because of the plaintiff's proceeding as with Mr Tsingolis. He also referred to Mr Tsingolis telling him that he, Mr Tsingolis was funding Unicar's expenses, including social media marketing, ongoing app development, leasing office space (at Southport) paying employees and further travel to Singapore to meet with investors.
9. In his second affidavit, Mr Radcliff exhibited a 'Participation Agreement' with Volkswagen Group Australia Pty Ltd entered into in January 2018.

Receipt of ATO refunds

1. During the course of 2018, Unicar received substantial sums of money in the form of refunds from the Australian Taxation Office representing deductions. For the 2018 year, the ATO had transferred the sum of virtually $413,139 to Unicar. For the previous year, it was about $245,000. This led Senior Counsel for Storm to suggest that Unicar was simply being propped up by ATO refunds.
2. A recurring pattern which appears in Unicar's (St George) bank statements in evidence indicated that when monies have been received from the ATO they were very rapidly disbursed. Some transactions recording payments by the company appear to have borne little manifest relation to Unicar's business. In some instances, Mr Tsingolis assured the Court that these had been reconciled by the company's accountants.
3. The receipt of these ATO payments was attributable to Unicar's accounting for its R&D expenditure, a topic to which I will now turn.

The R & D expenditure

1. The Court was referred to correspondence from Mr Aiden Quig dated 28 July 2018, in which he had sought payment from Unicar of approximately $85,000, representing the unpaid balance after work performed representing about $200,000 in value. This correspondence was apparently in response to a request made on Unicar's behalf for a breakdown of cost and time associated with the work.
2. On 21 November 2018, an employee of Unicar's accounting firm, Ms Harper emailed Mr Radcliff in which she requested a more detailed list of the R&D expenditure for 2018 which made up the total expenditure declared in the R&D claim of $726,533 in order to prepare the company's 2017/2018 tax return. This spending represented a very significant proportion of overall expenditure for that year (which was $1,069,070).
3. Following the lodgement of its tax return for the financial year ended 2018, Unicar received a refund from the Australian Taxation Office in the sum of approximately $316,000.
4. However, a valid claim of a deduction for R&D depended upon Unicar's ownership of the intellectual property rights to the App. This is not something which Unicar could claim to have had since it was Aurlev Holdings which owned them - Unicar's right, such as it was, was merely a licence to use it.
5. Mr Radcliff gave evidence, under cross-examination, that his understanding of advice he received about R&D applications was that 'resulting' IP can be owned by another entity where the relevant activity was undertaken by Unicar. This was, as I indicated in the section on 'Credit' relating to Mr Radcliff, strongly challenged. Ultimately it was put to Mr Radcliff that the effect of his evidence was that he expected Unicar to spend hundreds of thousands of dollars on software it did not own to benefit a Singaporean company. Mr Radcliff disclaimed responsibility for this: this was the structure which he was instructed to put in place. He said he had no idea what amounts Unicar had expended on R&D or what was recovered from the ATO.
6. Ultimately, Senior Counsel for Storm put to Mr Tsingolis that Unicar's bank account was being used to facilitate a sham application to the Australian Taxation Office in order to get assistance when Unicar had not spent any money on R&D. There was no reference within the bank statement to payment for any developers.
7. In response to this grave suggestion, as I understood him, Mr Tsingolis drew a distinction between the App's regular features and special features which the company had developed. In re-examination, he explained that Unicar had developed certain special features - relating to rewards programs, advertising and a facility to enable it to become an accredited NDIS provider - which took time and expense. These features were available to both customers and the drivers themselves; although the correlation between the App for a customer and a driver was not exact. Mr Tsingolis said this was indicative of the company's expenditure on its App and implied justified the R&D claim to the ATO.

Business Opportunity

1. An email was in evidence which indicated an opportunity for Unicar to develop a game as part of its app. Mr Radcliff said that under what he described as the Aurlev Holdings' 'franchise model', a new company would need to be developed. Under cross-examination, Mr Radcliff accepted that this was a business opportunity for Unicar.

Storm's Submissions

1. Storm submitted that it acquired a 0.79% shareholding in Unicar which is of negligible or no value. Unicar has been seeking investors for 4 years. Only Storm (and Mr Yates) had put money in. It has no value unless it receives a capital injection (which would only dilute Storm's investment even further). The reality was not that potential investors were put off by Storm's action in this proceeding at all. The reality is that any potential investor of substance would likely be put off by what due diligence on the company might reveal: the company has net negative assets of $177,952 (for financial year ended 30 June 2019) [41] . Its only asset is an App which, as recently as 2018 (after its testing at the Commonwealth Games that year) Mr Tsingolis personally regarded as 'not functional' (Exhibit H). But that is not really an asset of Unicar at all, but one that is owned by Aurlev Holdings [42] .
2. The participation agreement with Volkswagen was nothing special - it could have been reached with any other competitor. It receives no revenue [43] . It has trade creditors over $2.5m. Unicar is exposed to a potential audit from the Australian Taxation Office; which might expose it to substantial repayment of monies in relation to its R&D issues (and penalties).
3. On top of this, any due diligence would soon uncover what was said to be Mr Tsingolis' flagrant disregard of conventional norms of corporate governance: including substantial undocumented loans by entities associated with Mr Tsingolis to Unicar. If pressed, some of these entities could potentially recall the loans tomorrow; which would lead to the winding up of the entity. Reliance was also placed upon the manner in which Storm's own investment was rapidly dissipated and the extravagant spending by the company on peripheral expenses.
4. It submits that in assessing value, the Court must look at what Unicar is worth today; not at some future time.

Defendants' Submissions

1. The defendants commonly submit that no loss or damage has been established. Storm put on no evidence (lay or expert) of value of the company.
2. Rather, Storm invested $300,000 in a start-up company whose current economic financial viability is demonstrated by: 1. being valued at the sum of hundred $130 million by WMS Accountants; 2. holding an exclusive license in Australia to use a developed at proven to have worked in the 2018 Commonwealth Games; 3. has executed a participation agreement with Volkswagen, enabling it to purchase vehicles at a discount of 18% below wholesale; 4. carries a live website; 5. conducts a lease of premises in Southport, in Queensland; and 6. as the potential to earn significant returns.
3. They say that the circumstances another investor (Mr Yates) agreed to invest $70,000 for shares demonstrates value in Unicar. They say that the current difficulties that the company is currently experiencing in raising interest from investors are attributable to Storm's claim.
4. Senior Counsel for Mr Radcliff took issue, in particular, with Storm's criticisms of the claims for R&D and other matters which she characterised as tantamount to fraud. Senior Counsel submitted that, objectively, the R&D claims appeared valid and, whatever may have been the status of IPR, it was Unicar who was engaged in research and development. At any rate, Mr Radcliff had a peripheral role or involvement in the process; it was the responsibility of consultants.
5. Senior Counsel for Mr Radcliff referred to Unicar's bank statements, which revealed that the sum of $390,000 from the grants for R&D was paid to app developers for the entity.

Determination

1. I should indicate, at the risk of stating the obvious, that this is not a case about oppressive or discriminatory treatment against Storm by the majority controllers of Unicar and it is not a case where Storm is entitled to bring action, derivatively, against the company for wrongful conduct by its manager or advisers [44] . Nor is it a case where a contributory applies for a winding up of a company on the just and equitable ground [45] . In all such cases, any maladministration of the company's affairs by its manager (or controllers) is very relevant. This Court has no jurisdiction or power to entertain such claims. This case is simply a complaint about the circumstances in which Storm became a member and the rights of membership it acquired.
2. The usual applicable rule for assessing damages claims under s 236 for contravention of s 18 of the ACL is to compare the real value of the property acquired with its purchase price as at the date of acquisition of the property. That rule is not immutable, and the valuation can occur at the time of trial. But even if that is so, the valuation is still undertaken with the purpose of illuminating the value of the property at the date of acquisition. The authorities emphasise that subsequent events which illuminate the intrinsic value of what is acquired may be taken into account but subsequent events, say, relating to the maladministration of a company in which a claimant acquires a shareholding, are not to be taken into account.
3. I am satisfied that some loss or damage was actually suffered by Storm at the date it acquired its shares because it did not receive full value for what it purchased. It is unlikely that a hypothetical purchaser would have paid the same price that Storm paid in May 2017 if it was made aware that no one else had actually paid any money to acquire shares; or that no other investor (not even the founder) had parted with its capital at that point. Contrary to the defendants' submission, I do not accept that the 'valuation' of WMS Accountants in the 2016 Business Plan amounted to a real valuation. It was only an aspirational figure calculated on very limited parameters.
4. The difficulty is in quantifying the loss of value. I am satisfied that considerable expense has been legitimately incurred by Unicar in trying to establish the App, both before and after Storm acquired its shares. I cannot disregard the circumstance that, although it apparently did not proceed without blemish, in 2018, there was a soft launch of the product at the Commonwealth Games; and there is a subsisting agreement with Volkswagen. These matters reflect, to some degree, upon the value of the company when Storm purchased its shareholding.
5. Much, but not all, of what was proven and submitted, on Storm's behalf, relates to the mismanagement of the company after Storm acquired its shares. As I noted in my review of the principles, the subsequent incompetence of management after an investor has made its investment is an extraneous factor that does not illuminate the real value of the shares at the time that they acquired. The same might be said about maladministration of the company.
6. But the misleading conduct of both Mr Tsingolis and Mr Radcliff up to 5 April 2017 reflected adversely upon the credibility of the company's founder (and general counsel) which would have impaired the value of shares at the time that they were acquired in May 2017. Nobody else appeared to be involved in the management of this company other than Mr Tsingolis, with the involvement and assistance of Mr Radcliff. A lack of credibility in management, coupled with maladministration continues to adversely affect the value of the investment, whilst Storm remains locked into its investment - there is no market for its shares. Conceivably, also, Storm's lawsuit may act as a disincentive to potential investors, but that lawsuit arises from conduct predating Storm's investment. Not all of what has occurred after May 2017 can be regarded as 'extraneous' factors affecting share value.
7. Further, notwithstanding the maladministration or incompetence, it is difficult to say even now, at trial, that there is a nil value in the shares if, the company managed competently and in accordance with proper corporate governance norms.
8. Accordingly, there remain real difficulties in determining value, whether at the date of acquisition or the date of trial.
9. It is common ground that Storm purported to rescind the sale on 19 September 2017. There is no suggestion of affirmation after the contravening conduct became apparent.
10. The position in this case is factually not dissimilar to the case in Morellini v Adams [2011] WASCA 84, where a claimant invested in a start-up company. The company became under the control of a person who was primarily responsible for all of the negative factors affecting share value. The claimant became locked in upon purchase and the subsequent events adversely affected the share price. The Court awarded rescission under the statutory equivalent to s 237 of the ACL.
11. In my view, this is a case where the justice and equity of the situation entitles the Court to look to the remedies available under ss 237 and 243 of the ACL. I also consider that, contrary to the general law, such remedies can be shaped to deal with allowances that might be made in favour of both parties. It was said that the relief available under the predecessor provision to s 237 of the ACL should be 'proportionate' to the loss or damage suffered [46] .
12. Before I determine that remedial relief might be awarded under s 237, I propose to digress to consider whether the contributory fault defence to the claim for damages raised by the defendants may be relevant to the grant of relief under s 237. Contributory negligence needs consideration in any event having regard to the action under the Corporations Act.

Contributory Negligence

1. The defendants relied upon s 1041I(1B) of the Corporations Act, being a defence of contributory negligence, in order to reduce damages recovered by Storm, to the extent that the Court thinks it just and equitable having regard to the claimant's share in the responsibility for its damage.
2. They accepted that no such defence is applicable to any valid claim for damages under the Fair Trading Act 1987 (NSW), should that legislation apply in this proceeding. (Section 1041(3) of the Corporations Act indicates that the defence does not affect any liability that a person has any other law). As indicated earlier, since the Fair Trading Act may apply to corporations, on the premise that the legislation applied, this would mean that none of the defendants could rely upon contributory negligence to reduce damages awarded under s 236 of the ACL.
3. As to the Corporations Act action, section 1041I(IB) sets out multiple requirements, being proof that: 1. the claimant has suffered (relevantly) economic loss caused by its (or their) conduct done in contravention of s 1041H; 2. the claimant suffered the loss partly as a result of its failure to take reasonable care and partly as a result of the conduct of the defendants in contravention of s 1041H; and 3. the defendant did not intend to cause the loss or damage; and did not fraudulently cause the loss or damage.
4. I note that, on the assumption that these requirements are met, there is no legislative prescription as to the principles by which contributory negligence is to be considered in the federal legislation; unlike, say the principles of the defence in general law which are to some extent modified by statute [47] .
5. Under general law, contributory negligence means the failure of a plaintiff to take reasonable care for the protection of his or her person or property. The defence is concerned with the plaintiff's failure to protect his or her person or property against damage. It is not, however, concerned with whether such failure contributed to the event (here the misleading or deceptive conduct of the defendants) which caused the damage [48] . The focus of the inquiry is on the conduct of the plaintiff, in all of the circumstances of the case, and potentially including conduct of the defendant [49] . The standard of care required of the plaintiff is determined objectively: leaving aside the position of minors, the beliefs or lack of knowledge of the plaintiff cannot prevent a finding of contributory negligence if a reasonable person in the same circumstances would have taken steps to protect the plaintiff's interests [50] .

Defendants' Submissions

1. The defendants say that Mr Burns took no care to check anything or was indifferent to the alleged representations. He acted contrary to professional and family advice on purchasing the shares. They say that no one associated with Unicar asked him to invest $200,000-$300,000. It was his decision. If there be any loss, then the amount should be limited to the sum of $100,000 which is the amount that Mr Burns said that he was asked to invest.
2. The defendants submit that the contributory fault regime under Corporations Act is not defeated because of any intention to cause loss or any fraud.

Storm's submissions

1. Mr Burns says that no contributory fault defence is available in the action under the ACL, since the state legislation did not adopt s 137B of the Competition and Consumer Act. Senior Counsel for Storm initially accepted that, at least insofar as the remedy under s 237 (and s 243) of the ACL is concerned, the Court would be empowered to effectively reduce the amount of compensation awarded if it thought that the justice and equity of the facts militated in favour of a reduction for compensation on account of the plaintiff's failure to exercise reasonable care. That concession was later withdrawn.
2. In relation to the action under the Corporations Act, at a factual level, Senior Counsel for Storm submitted that I would not make any reduction for contributory fault in circumstances where Messrs Tsingolis and Radcliff had, by reason of their misleading or deceptive conduct, essentially 'disarmed' Mr Burns, or lulled him into a state of security and therefore discouraged him from making inquiries which a reasonable prospective investor in his position might otherwise make.
3. He submitted that if reduction was made, there was no basis to reducing the amount of compensation to the sum of $100,000 to correspond to the representation that other investors had agreed to put in that amount. Senior Counsel submitted that it was nonsensical to suggest that the decision to invest $300,000 was based on any different matters than if the decision was made to invest $100,000.

Determination

1. No contributory fault will reduce Storm's damages under s 236 of the ACL for the contravention of s 18 of the ACL. I will return to s 237 later.
2. As to the action under the Corporations Act, I must be mindful of the availability of the defence to a statutory right to recover damages so that any reduction, if it is to be made at all, must be made against the context and purpose of the legislation. Subject to that, I consider that the general principles under the common law derived from cases such as Podresbek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at [523-33] and Wynbergen v Hoyts Corp Pty Ltd (1997) 149 CLR 25 provide useful guidance.
3. Much of the defendants' submissions on this defence reprised their arguments on causation. It is that Mr Burns took no care and was indifferent to the correctness of the matters he says were misrepresented to, or not disclosed to him; to such degree that he rejected professional advice (to make inquiry) and family advice (from his uncle) as to the merits of the proposed investment.
4. Storm submitted, as it had on the issue of causation, that his conduct was consistent with the faith he reposed in a friend, Mr Tsingolis, who he looked up to and bore the trappings of business success, and his professional offsider, Mr Radcliff.
5. In my view, a reasonable investor in Mr Burns' position would not have simply reposed complete faith in the promoter of a start-up company on the basis of the promoter's assurances or indications of the company's financial prospects, even if the promoter was a friend and appeared to be successful. A reasonable investor in Mr Burns' position would have conducted some independent due diligence. Mr Hawkins' email to Mr Burns on 13 April 2017 would, amongst other things, have triggered, in the minds of a reasonable investor in Mr Burns' position, some cause for independent inquiry; as well as the seeking of independent financial advice. It was not the case that Mr Burns could not afford it or did not have the opportunity to seek it.
6. That Mr Burns did not do this was a contributing factor to Storm's loss.
7. Although provisions in Part 7.10 of the Corporations Act (including ss 1041H and 1041I) are plainly beneficial to investors, s 1041(IB) indicates that prospective investors are expected to exercise care for their interests, where they can, before deciding to invest. Otherwise, there is a risk of moral hazard.
8. In terms of the primary considerations of culpability and causative impact, Mr Burns was far less culpable than the defendants (in the aggregate). He was inexperienced and had, I think, a misplaced confidence in his ability to make a prudent financial decision. But Mr Tsingolis took advantage of the trust that Mr Burns reposed in him; and Mr Radcliff materially assisted Mr Tsingolis in creating an environment where it would have seemed to someone like Mr Burns that this was an investment opportunity too good to reject and there was a need for some haste in committing to such investment lest the opportunity be lost. Mr Radcliff lent his authority and credibility, as a solicitor, in support of Mr Tsingolis' promotional activities; even if it appears that at least at the February 2017 presentation, he appeared to be mixing his role as the company's general counsel with promotional activity.
9. In terms of causative impact, I am again mindful of the statutory purposes of the legislative regimes upon which Storm relies. The norms of commerce enshrined in those statutory protections signify that inexperienced investors are entitled to repose trust in those who promote financial products and those who facilitate such promotion. He may have 'liked the idea and the man (Mr Tsingolis)', but he acted on the faith of what the man misrepresented to him.
10. I would have assessed the level of contributory fault (for the purposes of s 1041I(1B)) of the Corporations Act at the level of 20%.

Proposed Relief

1. I now return to the appropriate relief under s 237.
2. In my view, an effective order for rescission is appropriate. As I have noted, Storm elected to rescind not long after, as a result of its solicitor's investigations, it learnt of the misrepresentations made to it by Mr Tsingolis and Mr Radcliff. Those misrepresentations were calculated to, and did induce Storm to make the investment it did. I have found that, at least in relation to the February 2017 representations by Mr Tsingolis, he knew that they were false. They remained operative at the point of acquisition. The shares were purchased at a time when no other investor had contributed capital. Whatever potential the concept of Unicar's business, at the time of purchase, its value was predominantly potential; rather than actual. Storm has suffered loss and disadvantage by being locked into an investment in a company that has been beset by mismanagement. The questions in my mind whether rescission should be full or partial and whether the amounts payable by Mr Tsingolis and Mr Radcliff should be the same. The orders I propose will be to transfer back to Messrs Tsingolis and Radcliff, respectively, the residual value of Storm's shares.
3. Uninstructed by authority, I would have considered that the Court's discretion to award compensation under s 237 might also require assessment of the degree to which a claimant's carelessness has contributed to its loss.
4. It is certainly true that in I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109, the High Court rejected (at [60]-[61]) the proposition that a claimant's carelessness could be taken into account to reduce the amount of compensation under s 87 of the former Trade Practices Act 1974 (Cth). That reasoning was applied by McDougall J in McLean Tecnic Pty Ltd v Digi-Tech (Australia) Pty Ltd [2005] NSWSC 386 at [139]. That reasoning may, arguably, have been affected by the absence, at that time, of a provision like s 137B in the CC Act which recognised a limited entitlement in a wrongdoer to a reduction in a compensation order (for contravention of s 18 of the ACL) on account of the claimant's failure to take reasonable care. The entitlement is limited because it concerns only a compensation order made under s 236 of the ACL (and not s 237, with s 243). There is Federal Court authority which posits that a claimant cannot evade the operation of s 137B by framing its entitlement to recovery under s 237 rather than s 236 [51] .
5. The parties agree that I should follow the course adopted by MacDougall J in McLean. Notwithstanding certain misgivings, I propose to do so. Even if I did not, independently, there is binding authority constrains me to hold that there can no reduction of any compensation order under s 237, which is applied by the Fair Trading Act action brought by Storm, in circumstances where s 137B is not applicable to state law: Perpetual Trustee Co v Milanex Pty Ltd (in liq) [2011] NSWCA 367 per Macfarlan JA (with whom Campbell JA and Young JA agreed) at [86].
6. No reduction should be made under s 237 on account of any contributory fault by Storm.
7. The amounts of each payment by each individual defendant take into account what I conceive to be the contributions of each individual defendant to causing the loss or damage (actual or potential) to Storm. In my view, there is no bar to the imposition of a compensation order against one respondent that is different to another in respect to a single loss [52] . The orders I have in mind do not limit the loss recoverable.
8. In summary, I have found that the plaintiff has established contraventions by the defendants of the proscription against misleading or deceptive conduct under s 18 of the ACL, which is applicable under the Fair Trading Act. In the case of the second and third defendants, direct and ancillary liability is established.
9. In my opinion, the appropriate remedy for the action under the Fair Trading Act is in s 237 (in accordance with an amalgam of s 243(d) & (e)) of the ACL which would see: 1. the Second Defendant pay the plaintiff the sum of $225,000, plus interest; 2. the Third Defendant pay the plaintiff the sum of $75,000, plus interest; and 3. upon receipts of the said payments in (a) and (b), the plaintiff is to: 1. transfer 450,000 of its shares in the First Defendant to the Second Defendant (or its nominee); and 2. transfer 150,000 of its shares in the First Defendant to the Third Defendant (or its nominee).

ORDERS

1. The plaintiff is to prepare short minutes to reflect these reasons, including relevant interest calculations and costs and serve them upon the defendants within 7 days of these orders.
2. The defendants are to inform the plaintiff whether objection is taken to the short minutes (or if it suggests any variation to the proposed short minutes), and submit (in no more than 5 pages) the basis for the objection or variation within a further 7 days.
3. If disagreement persists, the plaintiff is to: 1. notify the defendants of its position, in response, to any suggested objections or variation (by submissions of no more than 5 pages); and 2. notify my Associate that disagreement applies to the proposed short minutes and provide copies of the parties' statements of position, within a period of a further 5 days.
4. Upon notification to the Court, the Court will determine the appropriate orders to dispose of the proceeding, including costs, on the papers, unless indication is given to the contrary.

Endnotes

1. Exhibit B and Exhibit E.
2. Principally comprising a three-volume tender bundle, Exhibit C.
3. Reliance was placed upon s 4 of the ACL. A similar provision exists in s 769C of the Corporations Act.
4. CC Act, s 131A.
5. Interpretation Act 1987 (NSW) s 21.
6. Bendigo & Adelaide Bank v Cairncross, Bendigo & Adelaide Bank Ltd v Elite Advertising Group Pty Ltd [2011] NSWSC 610 at [53]; Levy v Bablis [2011] NSWSC 461.
7. Exhibit C, page 154.
8. Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 576-77; J.D Heydon, Heydon on Contract (2019, Thomson Reuters) [14.100], page 50.
9. Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at [102].
10. Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at [100]-[103]; National Exchange Pty Ltd v ASIC (2004) 49 ACSR 369 at [381].
11. Campbell at [25]; followed in ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640 at [50].
12. Followed in Campbell v Backoffice Investments per French CJ at [27].
13. More than once he evinced an American-style mode of conversation with the cross-examiner, addressing him as 'man'. This was not intended to be disrespectful: Mr Burns had spent substantial time studying (and playing sports) at an American college in New York prior to the events leading up to this proceeding.
14. Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 at [105]-[106].
15. Ireland v WG Riverview, per Macfarlan JA (with whom Bell ACJ and Barrett AJA agreed) at [65]-[66].
16. Ireland, Bell ACJ at [22], [27], [33]-[35] (with whom Barrett AJ agreed).
17. J.D Heydon, Heydon on Contract (2019, Thomson Reuters) [14.340], page 562.
18. Allstate Life Insurance Co v ANZ Banking Group (No. 5) (1996) 64 FCR 73 at 75.
19. Taylor v Crossman (No.2) [2012] FCAFC 11 at [52].
20. ASIC v Maxwell (2006) 59 ACSR 373 at [92].
21. Compaq Computer Australia Pty Ltd v Merry (1998) 157 ALR 1 at 4-5.
22. In this step of the argument, it is said that Mr Tsingolis directly contravened the proscription: Houghton v Arms (2006) 225 CLR 553 and ASIC v Narain (2008) 169 FCR 211.
23. Heydon v NRMA (2000) 51 NSWLR 1 per Malcolm AJA at [339].
24. Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700.
25. H20 Learning Pty Ltd v Swim Loops Pty Ltd Jump Schools [2019] NSWDC 165 at [156]-[164].
26. Henville v Walker (2001) 206 CLR 459 per Gleeson CJ at [13]; per McHugh J at [140]-[141]; per Hayne J at [165].
27. ASIC v Narain (2008) 169 FCR 211.
28. (1940) 64 CLR 282 at 289.
29. Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 at 291.
30. HTW Valuers (Central Qld) v Astonland Pty Ltd (2004) 217 CLR 640 at [65]-[66].
31. Potts v Miller at 298; Kizbeau at 291; HTW Valuers at [40].
32. Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 per Mason P (with whom Priestley JA agreed) at 366G.
33. Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32-33, 46-47; Morellini v Adams [2011] WASCA 84 at [37]-[38].
34. Demagogue.
35. Demagogue at [32]-[33].
36. Gregg v Tasmanian Trustees Ltd (1997) 73 FCR 91; Heydon, Competition and Consumer Law (Vol 2) [140.7000].
37. Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700.
38. Awad v Twin Creeks Properties Pty Ltd [2012] NSWCA 200 per Allsop P (as his Honour then was) at [43].
39. Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 per Mason P (with whom Priestley JA agreed) at 368E-G.
40. Ivanoff v Phillip M Levy Pty Ltd [1971] VR 167 at 171; Morellini v Adams [2011] WASCA 84 at [50].
41. Exhibit C, Vol 2, Tab 54, p 663.
42. Exhibit C, Vol 1, Tab 1.
43. Exhibit C, Tab 55.
44. Parts 2F.1 and 2F.1A of the Corporations Act, respectively.
45. Part 5.4A of the Corporations Act.
46. Akron Securities at 368.
47. Civil Liability Act 2002 (NSW), s 5R.
48. Astley v Austrust (1999) 197 CLR 1 at [21].
49. Ibid at [30].
50. Ibid at [35].
51. BHPB Freight Pty Ltd v Cosco Oceania Charting (No.3) [2009] FCA 1087 per Finkelstein J at [62]; Khoury v Sidhu [2011] FCAF 71.
52. Heydon v Jackson (1988) ATPR 40-845 per Pincus J at 49,107; cited in J.D Heydon, Competition and Consumer Law [140.7160].

Amendments 18 March 2020 - Corrected minor typos. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 March 2020