The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd

Ltd (2013) 86 NSWLR 174; [2013] NSWCA 393 Australian Gypsum Ltd v Hume Steel Ltd (1930) 45 CLR 54; [1930] HCA 38 Bonhote v Henderson [1895] 1 Ch 742 Bonhote v Henderson [1895] 2 Ch 202 BP v State of New South Wales [2019] NSWCA 223 Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 Broken Hill Proprietary Co Ltd v Commissioner of Stamp Duties [1998] 1 Qd R 452 Bush v National Australia Bank Ltd (1992) 35 NSWLR 390 Coleman v Bone (1996) 9 BPR 16,235 Concept Television Productions Pty Ltd v Australian Broadcasting Corporation (1988) 12 IPR 129 Crane v Hegeman-Harris Co Inc [1939] 1 All ER 662 CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121 Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) 5 BPR 11,314 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 Fowler v Fowler (1859) 4 De G & J 250; 45 ER 97 Gan v Xie [2023] NSWCA 163 Johnson v Synnex Australia Pty Ltd [2017] SASCFC 165 Johnson Matthey Ltd v AC Rochester Overseas Corporation (1990) 23 NSWLR 190 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Joscelyne v Nissen [1970] 2 QB 86 Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076; (2005) 13 BPR 25,077 Kramer v Stone [2023] NSWCA 270 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Ling v Pang [2023] NSWCA 112 MacDonald v Shinko Australia Pty Ltd [1999] 2 Qd R 152 Mackay v Wilson (1947) 47 SR (NSW) 315 Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23 McNab v Director of Publication Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298 Morris Finance Ltd v Brown (2017) 252 FCR 557; [2017] FCAFC 97 Murphy v Wright (1992) 5 BPR 11,734 Newey v Westpac Banking Corporation [2014] NSWCA 319 Overlook v Foxtel [2002] NSWSC 17 Pukallus v Cameron (1982) 180 CLR 447; [1982] HCA 63 Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2004] NSWSC 880; (2004) 12 BPR 22,319 RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 Roberts v Investwell Pty Ltd (in liq) [2012] NSWCA 134; (2012) 88 ACSR 689 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Ryledar Pty Ltd v Euphoric (2007) 69 NSWLR 603; [2007] NSWCA 65 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47 Swiss Bank Corporation v Lloyd's Bank Ltd [1982] AC 584 Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24; (2019) 19 BPR 39,153 Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489; [2011] NSWSC 1562 Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5 The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd [2021] NSWSC 1175 Troncone v Aliperti (1994) 6 BPR 13,291 Watson v Foxman (1995) 49 NSWLR 315 Zelden v Sewell Henamast Pty Ltd [2011] NSWCA 56 Texts Cited: Perry Herzfeld and Thomas Prince, Interpretation (2nd ed, 2020, Thomson Reuters) Category: Principal judgment Parties: The Property Investors Alliance Pty Ltd (Appellant) C88 Project Pty Ltd (in liq) (Respondent) Representation: Counsel: S A Lawrance SC with J C Lee (Appellant) D Neggo (Respondent)

Solicitors: Rutland's Law Firm (Appellant) Macpherson Kelley Lawyers (Respondent) File Number(s): 2022/261766 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity Division Citation: [2022] NSWSC 1081 Date of Decision: 12 August 2022 Before: Rees J File Number(s): 2021/22126

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] Pursuant to a Sole Agency Agreement ("SAA") executed on 20 April 2018, the appellant, The Property Investors Alliance Pty Ltd ("PIA"), undertook to market and promote the sale of specified units - designated as "Agency Lots" - in a residential development being constructed by the respondent, C88 Project Pty Ltd ("C88"). Under the SAA, it was agreed that where PIA, as selling agent, was the effective cause of sale of an Agency Lot, it would be entitled to "Commission" from C88, calculated at 5.5% of an Agency Lot's "Contract Price". So as to protect its right to payment of "Commission" or its "commission entitlement", cll 12.9, 12.10, and 12.11 of the SAA cumulatively conferred a right upon PIA to lodge a caveat or caveats over units in the development where C88 defaulted in punctual payment of its Commission. Similarly, cll 12.15 and 12.16 conferred a right upon PIA, in the same circumstances, to direct C88 to sell an Agency Lot to it or to its nominee or to a third party at a fixed price, which was to be capable of being offset against any accrued commission entitlement. Prior to execution of the SAA, PIA and C88 had, with respect to the same development, entered into two Exclusive Agency Agreements, under which PIA came to be owed a significant amount of outstanding commission payments. As at the date upon which the SAA was executed, PIA had come to be owed even more, on a contingent basis, insofar as it had caused sales of units in the development not being Agency Lots. Notwithstanding the amounts owing to PIA for its prior work, however, cl 1.1(g) of the SAA limited the terms "Commission", "commission entitlement", and "agent commission" only to the sums payable to PIA for its sale of Agency Lots. One consequence of that limitation was that any amounts owing to PIA prior to the execution of the SAA fell beyond the ambit of the protections accorded to PIA by cll 12.9-12.11 and 12.15-12.16 thereof. At trial, the sole director of PIA, Mr Justin Wang, gave evidence of conversations with a director of C88 which, PIA contended, showed that it had been the parties' common intention that the SAA should secure all amounts then and thereafter owing by C88 to PIA. Mr Wang's evidence was uncontradicted by evidence from those involved in the management of C88 prior to its entry into liquidation, and was accepted by the primary judge as credible. Notwithstanding the primary judge's acceptance of Mr Wang's evidence, relief in the nature of rectification was denied on the basis that the appellant had not proffered clear and convincing proof that Mr Wang's understanding of the purview of cl 1.1(g) was common to that of the managers of C88. The primary judge also rejected the claim that the appellant had been expressly granted an equitable charge by cll 12.15 and 12.16 or impliedly granted an equitable charge by cll 12.9, 12.10 and 12.11. A submission proffered by C88 that, even if the SAA did expressly or impliedly confer an equitable charge on PIA, any such charge would be excised from the agreement as being repugnant or contrary to s 49(1) of the Property and Stock Agents Act 2002 (NSW) was rejected. On appeal, the issues before the Court were: (i) Whether the primary judge had erred in refusing to order rectification of cl 1.1(g) of the SAA, in circumstances where Mr Wang's evidence was unopposed by countervailing evidence adduced by C88 and where the liquidators of C88 had not called the company's former managers to give evidence as to their intentions regarding the scope of cl 1.1(g); (ii) Whether the primary judge had erred in holding that cll 12.15 and 12.16 of the SAA did not expressly grant an equitable charge to PIA; (iii) Whether the primary judge had erred in holding that, as a matter of construction, cll 12.9, 12.10, and 12.11 did not evince an intention to confer a proprietary interest in the units of the development on PIA as security for payment of its Commission, so as impliedly to grant a charge to it; and (iv) Whether the primary judge had erred in holding that, in the event that the SAA did grant an equitable charge to PIA, a contravention by PIA of s 49(1) of the Property and Stock Agents Act was not such as to excise the clauses granting the charge from the SAA, as contemplated by cl 1.2(h) thereof. The Court (per Kirk JA and Griffiths AJA, White JA dissenting in part), allowing the appeal in part and remitting the proceedings to the Equity Division, held: As to issue (i) per Kirk JA: (1) Rectification based upon mutual mistake requires clear and convincing proof of the parties' common intention. While the fact that a defendant to a suit seeking rectification has not gone into evidence does not necessarily foreclose the availability of rectification, the onus remains with the claimant to make the claim good. In the circumstances of this case, none of the conversations that Mr Wang deposed to having with the managers of C88 indicated agreement to the position, and an intention, that the SAA should safeguard all outstanding payments then and thereafter owing to PIA: [131]-[143]. (2) Inferential reasoning by recourse to Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 does not permit the bridging of gaps in evidence. In circumstances where there was no evidence that the managers of C88 had the same subjective intention and understanding as that of Mr Wang, there was no basis either to infer that their evidence would not have assisted the respondent's case or to draw an inference adverse to C88 with greater confidence: [144]-[149]. Kuhl v Zurich Financial Services Ltd (2011) 243 CLR 361; [2011] HCA 11, applied. Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53; RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270; CSR Ltd v Adecco (Australia) Pty Ltd [2017] NSWCA 121; Ling v Pang [2023] NSWCA 112, followed. As to issue (i) per Griffiths AJA: (3) A party seeking rectification of a written document carries the onus of establishing both the substance and detail of a common intention between the parties and the document's departure therefrom in the clearest and most satisfactory manner, by reference not only to objective material but also to evidence of the parties' subjective states of mind: [157]-[165]. Fowler v Fowler (1859) 4 De G & J 250; Australian Gypsum Ltd v Hume Steel Ltd (1930) 45 CLR 54; [1930] HCA 38; Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336; [1973] HCA 23; Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55; Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603; [2007] NSWCA 65; Newey v Westpac Banking Corporation [2014] NSWCA 319; Simic v New South Wales Land and Housing Corporation (2016) 260 CLR 85; [2016] HCA 47, cited. (4) The primary judge did not err in holding that the appellant had not established a common intention departed from in the SAA to the standard required in a suit for rectification. Although Mr Wang's evidence was accepted by the primary judge, his recall of the discussions said to evidence the parties' common intention was admittedly imperfect notwithstanding their reduction to direct speech. Mr Wang's evidence, moreover, relayed equivocations as to whether the relevant representatives of C88 actually concurred in his proposal to encapsulate all moneys owing to PIA in the SAA, such equivocations occurring in ongoing and earnest commercial negotiations: [179]-[205]. Concept Television Productions Pty Ltd v Australian Broadcasting Corporation (1988) 12 IPR 129; Overlook Management BV v Foxtel Management Pty Ltd [2002] NSWSC 17; Watson v Foxman (1995) 49 NSWLR 315; Kane's Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381, approved. Gan v Xie [2023] NSWCA 163, cited. (5) While the principle in Jones v Dunkel can apply in a rectification suit, and such a suit should not be successfully defended simply by the defendant not going into evidence, no such inference could be drawn in the circumstances of this case. The appellant's failure to discharge its onus of establishing the claimed common intention foreclosed any inference that the evidence capable of being given by C88's former managers would not have assisted C88: [207]-[215]. Ling v Pang [2023] NSWCA 112, followed. Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, cited. As to issue (i) per White JA dissenting: (6) Where a party intends to give effect to a document as worded, but also intends to enter into a transaction which has a different effect from that for which the document provides, then the availability of rectification depends upon the intention to achieve a legal effect being clearly predominant over the intention to give effect to the document as it is worded. In the circumstances of the present case, a fair inference was that the former managers of C88 shared an intention with Mr Wang that cl 1.1(g) would include, and thus the caveat provisions would protect, all moneys owing by C88 to PIA. In light of the long business relationship between the parties, it should not be lightly inferred that C88's former managers knew of Mr Wang's intention and kept silent knowing that he might be labouring under a mistake: [58]-[62]. Bush v National Australia Bank Ltd (1992) 35 NSWLR 390, cited. (7) The inference that the parties shared a common intention of the kind asserted by PIA was strengthened by the fact that C88 had not called witnesses that it might otherwise be expected to have called. Accordingly, an inference adverse to C88 available from evidence led by PIA could more readily be drawn: [63]-[70]. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3; Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, applied. As to issue (ii): (8) The primary judge was correct to hold that cll 12.15 and 12.16 of the SAA did not amount to the express grant of an equitable charge to PIA. Although those clauses did confer a proprietary interest upon PIA as security for payment of accrued commission, that proprietary interest was in the nature of a call option rather than an equitable charge. The inability of PIA, under those clauses, to enforce its security by appointment of a receiver or by judicial sale was inconsistent with the supposed grant of a charge thereby to it: [71]-[77] (White JA); [126] (Kirk JA); [153] (Griffiths AJA). Swiss Bank Corporation v Lloyd's Bank Ltd [1982] AC 584, followed. Broken Hill Proprietary Co Ltd v Commissioner of Stamp Duties [1998] 1 Qd R 452; King Investment Solutions Pty Ltd v Hussain [2005] NSWSC 1076; (2005) 13 BPR 25,077; Morris Finance Ltd v Brown (2017) 252 FCR 557; [2017] FCAFC 97; Johnson v Synnex Australia Pty Ltd [2017] SASCFC 165, cited. As to issue (iii): (9) The contractual grant of authority to lodge a caveat in respect of the grantor's land does not necessarily imply the grant of a caveatable interest in the grantor's land, whether in the form of an equitable charge or otherwise. In each case, the question is one that calls for construction of the terms of the contract as a whole: [85]-[108] (White JA); [128] (Kirk JA); [153] (Griffiths AJA). Murphy v Wright (1992) 5 BPR 11,734; Coleman v Bone (1996) 9 BPR 16,235; Taleb v National Australia Bank Ltd (2011) 82 NSWLR 489; [2011] NSWSC 1562; Aged Care Services Pty Ltd v Kanning Services Pty Ltd (2013) 86 NSWLR 174; [2013] NSWCA 393, considered. Troncone v Aliperti (1994) 6 BPR 13,291, explained. Depsun Pty Ltd v Tahore Holdings Pty Ltd (1990) 5 BPR 11,314; Redglove Projects Pty Ltd v Ngunnawal Local Aboriginal Land Council [2004] NSWSC 880; (2004) 12 BPR 22,319; Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24; (2019) 19 BPR 39,153, cited. (10) The primary judge erred in holding that cll 12.9, 12.10, and 12.11 did not impliedly grant an equitable charge to PIA to protect its entitlement to Commission from C88. In circumstances where C88 was a special purpose vehicle whose ability to satisfy PIA's Commission depended upon the sale of units in the development, the parties must have intended that PIA was to have more than a mere right to restrain completion of contracted sales of unit by caveat: [110]-[112] (White JA); [128] (Kirk JA); [153] (Griffiths AJA). As to issue (iv): (11) Even assuming that the implied conferral of an equitable charge upon PIA contravened s 49(1) of the Property and Stock Agents Act, that would not of itself necessitate the severance of cll 12.9, 12.10, or 12.11 from the SAA. The primary judge was correct to conclude that any such contravention would not void the SAA and that, accordingly, the excisive effect of cl 1.2(h) of the SAA was not enlivened: [114]-[122] (White JA); [125] (Kirk JA); [153] (Griffiths AJA).

JUDGMENT

1. WHITE JA: This is an appeal from orders of the Equity Division (Rees J) dismissing claims by the appellant that it is entitled to an equitable charge over certain units in a development known as "The Somerset" to secure moneys owing to it pursuant to an agency agreement called a "Sole Agency Agreement" under which the appellant acted as agent for the respondent to sell units in the development. The appellant also sought rectification of a provision in the Sole Agency Agreement relating to the definition of "Commission" and "commission entitlement" to which the provisions in the Sole Agency Agreement said to have given rise to the equitable charge referred (The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd (in liq) [2022] NSWSC 1081).
2. The appellant carries on business as a real estate agent. Between 2015 and 2019, it entered into a number of agency agreements with the respondent for the sale of apartments in the Somerset situated at Carlingford. The primary judge recorded that the appellant had sold 317 apartments in the development and had received some $10 million in commission but remained owed some $18 million (at [1]). The respondent was a special purpose vehicle incorporated by Dyldam Developments Pty Ltd ("Dyldam") for the purpose of developing the Somerset. It is now in liquidation.
3. On 13 September 2021, summary judgment was given for the appellant for the amount of outstanding commission in the sum of $18,055,076.20 plus interest (The Property Investors Alliance Pty Ltd v C88 Project Pty Ltd [2021] NSWSC 1175). The respondent was placed into external administration on 14 April 2022 and, on 31 May 2022, a meeting of creditors resolved that it be wound up.
4. The appellant claims that it is entitled to an equitable charge over 27 specified lots in the development to secure its claimed entitlement to commission. It relies upon the following clauses of the Sole Agency Agreement that it entered into with the respondent on 20 April 2018: "12 COMMISSION … 12.9 The Owner agrees that the Agent may lodge and maintain caveat or caveats on any units in the Development, the title of which has not been transferred to a third party, where the Owner is in default of its obligations to make payment of Commission to the Agent. 12.10 The Owner acknowledges that the caveat provision gives an absolute right to the Agent to protect the Agent's interest to commission entitlement or compensation or damages as the case may be. 12.11 Where the right of the Agent to lodge and maintain caveat or caveats arise, the Owner is taken to have and is deemed to have duly given consent to the Agent to the lodgment or lodgments and maintaining of caveats and the Agent is only obligated to remove the caveat or caveats on full receipt of its Commission entitlements and this clause shall provide a full and complete defense to any action of the Owner to seek removal of the caveat or caveats. … Further Right of the Agent In Respect of Accumulated or Accrued Commission Entitlement 12.15 The Agent has the right from time to time, to: (a) direct the Owner to pay accrued commission which is due and payable to the Agent, in whole or in part to any third party as the Agent may direct; or (b) Nominate any party, including itself or any person to acquire any Agency Lot, which is not subject of exchanged contracts, as stock for re-sell in the future. Such nomination may be on more than one occasion, and where the Agent makes such nomination the Owner must sell to the nominated party (including the Agent itself) and the price of the Agency Lot concerned shall be the MSP for the Agency Lot concerned. 12.16 For the contracts on the sale of any Agency Lot to the Agent or the party nominated by the Agent, the Owner agrees: (a) the sale price (inclusive of GST) is the MSP for the Agency Lot concerned; (b) notwithstanding any other provision in this Agreement, no deposit is payable and the Agent shall be absolutely entitled to apply set off against the Commission due and payable by the Owner to the Agent towards the deposit and balance payable at completion of contracts for the or each Agency Lot concerned; (c) completion to be not longer than 6 weeks from the date of exchange; and (d) the Owner at the Owner's own cost must do all things and sign all documents to transfer unencumbered title to the Agency Lot concerned to the Agent or its nominee as the case may be."

Rectification

1. The appellant relied upon the evidence of Mr Wang. He deposed to discussions that he had primarily with Mr Sam Fayad, whom he understood to be one of the owners of Dyldam. Mr Fayad was a director of the respondent. The other directors of the respondent were a Mr Joseph Khattar and his wife, Ms Chahida Khattar.
2. By 20 April 2018, the appellant had introduced purchasers who had exchanged unconditional contracts for the purchase off-the-plan of 295 lots. Around March 2018, when the South, East and West buildings of the Somerset were nearly ready for settlement, Mr Fayad called Mr Wang. Mr Wang deposed that they had a conversation to the following effect: "Sam: Brother, I need your help, at settlement our funder only allowed you to deduct 3.3% of contract price from the deposit you hold. The balance is required to be provided at settlement for payment to our funder. Justin: No, I can't agree with this. This is only opportunity for PIA [the appellant] to get our full commission for the sale. Sam: Brother, we have problem with our cash flow. lf you do not agree with this the settlement will not happen. Then you, we and your buyers will all be in trouble. Justin: How will PIA commission be protected? Sam: North building will be settled next year. You can keep all deposit for North building for outstanding commission when North building starts settle. Justin: If the deposits are not enough to pay all balance of commission I need put caveat on your remaining units. Sam: It is ok, but please make sure your caveat will not affect our sale and settlement."
3. He deposed that Chahida Khattar called him around the same time and they had a conversation to a similar effect of the conversation to which he deposed he had with Mr Fayad.
4. Mr Wang agreed to Mr Fayad's request and received only 3.3% of the contract price towards payment of its commission on sales of units in the East, West and South buildings. The respondent admitted the appellant's allegation that, at the date of the entry into the Sole Agency Agreement, the amount of commission unpaid that was owing under the former Exclusive Agency Agreement amounted to $3,203,862. [1]
5. Mr Wang deposed to having had further conversations with Mr Fayad concerning delays in payment of commission in several developments to the following effect: "Justin: Please help with payments. Payments are outstanding in Viewpoint, Vivo and Northgate. Dyldam has also delayed in making payments for the Somerset sales. PIA has to honour the payment to its sales consultants even PIA has not received payment Please follow up and make some payments to help with my cash flow. Sam: If you can settle sold units and sell few more units, we will pay you all outstanding commission, otherwise PIA, we and your clients are all in trouble. You will be fully paid when North building settles."

Express charge

1. What would be secured by an equitable charge is relevant to the construction of cll 12.9, 12.10, and 12.11 in that it informs the construction of the infinitive "to protect" in cl 12.10 (see below at [111]).
2. The appellant's primary submission on appeal was that cll 12.15 and 12.16 conferred on it the right to compel a sale of the Agency Lots and set off outstanding Commission against the purchase price. The appellants submitted that this was "a charge by another name" because the Agency Lots had been expressly made liable for the discharge of the Commission owed by the respondent to the appellant. It submitted that it enjoyed a right of immediate recourse to identifiable property, exercisable upon its demand for the satisfaction of that debt.
3. The primary judge dealt with this submission as follows: "[129] The agent's reliance on clauses 12.15 and 12.16 was not pleaded. However, as the liquidator addressed the matter in submissions in the event that I was minded to hear the argument, and as the issue turns on the terms of the Sole Agency Agreement, I will deal with it; it does not require any additional evidence and the liquidator has been able to consider the matter. I note, however, that these clauses were not referred to by Mr Wang when he spoke to Mr Fayad after having circulated the proposed Sole Agency Agreement and described the "security provisions": see [36]. Nor were these clauses cited in the caveat when describing the equitable charge: see [61]. More importantly, the same provisions were included in the second agency agreement (see [24]-[25]), executed before there was any discussion about "security". If the agent's submission is correct, then the agent had an equitable charge all along and did not know it. [130] Consideration of these sub-clauses requires application of the principles summarised in Roberts v Investwell [Pty Ltd (in liq) [2012] NSWCA 134; (2012) 88 ACSR 689], as described at [92]-[96]. Sub-clauses 12.15 and 12.16 do not appropriate property of C88 to the agent for payment of a debt, nor give the agent a present right to have the property made available for the payment of its debt. The first option given in sub-clause 12.15(a) is that the agent can direct C88 to pay accrued commission to the agent's nominee. The second option given in sub-clause 12.15(b) is that the agent may nominate an apartment to be transferred to the agent at the MSP. At most, the sub-clauses are an agreement to create a charge in favour of the agent on request, which does not create an equitable charge as no immediate proprietary interest or right to recourse to a particular asset is conferred on the creditor: Roberts v Investwell at [30]. The sub-clauses do not refer to a charge, or mortgage or anything other than the ability, on request, to require C88 to sell an apartment to the agent at a set price, which price could be off-set against the commissions owing. Whilst I do not agree with the liquidator that the agent was entitled to exercise this option in the absence of being owed commission, nor do I consider that these sub-clauses evince an intention to confer a proprietary interest as security for a present or future debt. There was no equitable charge. It follows that the agent is not entitled to orders for judicial sale."

Implied Charge

1. Clauses 12.9 - 12.11, 12.15 and 12.16 are quoted at [4] above. By cl 12.9, the respondent agreed that the appellant may lodge and maintain a caveat or caveats on any "units in the Development". "Development" was defined in cl 1.1(l) as follows: "'Development' means the development on the Land of new multi storey residential apartments to be under strata title, with such s96 EPA modifications as may be approved by Council."
2. The "Land" meant land known as 7-13 Jenkins Road and 2-14 Thallon Street, Carlingford, being the site of the Somerset development.
3. "Unit" or "Units" was defined in cl 1.1(z) as a reference to the "respective Agency Lot in the Development, or as a general reference to the residential apartment(s), unit(s) [sic] in the Development, as the context may require".
4. Clause 12.9 uses the word "units" in lower case and not the defined term "Units". The right to lodge and maintain caveats conferred by cl 12.9 was therefore a right that related to all units in the Somerset development which had not been transferred to purchasers, in contradistinction to the call options conferred by cl 12.15 which related only to the specified Agency Lots. This would follow even if "units" were to be read as "Units" in the defined sense. This is because the context, in particular the express reference in cll 12.15 and 12.16 to Agency Lots, would suggest that even a reference to Units would be to all units in the Development.
5. Clause 22.1 (the Whole Agreement clause referred to at [53] above) precludes recourse to the negotiations between Mr Fayad and Mr Wang in construing cll 12.9 - 12.11, even in so far as those negotiations reveal matters of objective fact (Johnson Matthey Ltd v AC Rochester Overseas Corporation (1990) 23 NSWLR 190 at 196; Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424; [2001] FCA 1833 at [440]). But that clause does not preclude regard being had to the objective facts that must have been known to both parties at the time the Sole Agency Agreement was entered into, namely, that the appellant was owed millions of dollars in outstanding commission with more commission becoming payable as the settlement of exchanged contracts proceeded.
6. At all material times, s 74F of the Real Property Act 1900 (NSW) has provided that a person who claims to be entitled to a legal or equitable estate or interest in land under the provisions of that Act may lodge with the Registrar-General a caveat prohibiting the recording of any dealing affecting the estate or interest to which the person claims to be entitled.

Notice of Contention

1. By Notice of Contention, the respondent submitted that "the Court would not find an implied term creating a charge where the charge would be in contravention of s 49(1) of the Property and Stock Agents Act".
2. Section 49 of the Property and Stock Agents Act 2002 (NSW) is in Division 4 of Part 3 of that Act, entitled "Conflicts of interest". Section 46 provides that regulations may be made requiring a real estate agent who provides financial or investment advice to a person in connection with the sale or purchase of land to provide the person with specified information or warnings. Section 47 requires a buyer's or seller's agent acting on the sale or purchase of the land to disclose information to a prospective buyer of the land of any relationship the agent has with his client. Section 48 provides that a real estate agent may not act for both the buyer and seller of land.
3. Section 49 relevantly provides: "49 Restrictions on licensee obtaining beneficial interest in property (1) A real estate agent who is retained by a person (the client) as an agent for the sale of property must not obtain or be in any way concerned in obtaining a beneficial interest in the property. Maximum penalty - 200 penalty units or imprisonment for 2 years, or both. ... (3) A person does not contravene this section by obtaining a beneficial interest in property if - (a) before the person obtains the interest, the client consents in writing in a form approved by the Secretary to the person obtaining the interest, and (b) the person acts fairly and reasonably in relation to the obtaining of the interest, and (c) no commission or other reward is payable to the person in relation to the transaction by which the interest is obtained, unless the client consents in writing in a form approved by the Secretary to the commission or other reward being paid. (4) Without limiting this section, a person is considered to obtain a beneficial interest in property if - (a) the person or a close relative of the person obtains a beneficial interest in the property, or (b) a corporation having not less than 100 members and of which the person or a close relative of the person is a member, or a subsidiary of such a corporation, obtains a beneficial interest in the property, or (c) a corporation of which the person or a close relative of the person is an executive officer obtains a beneficial interest in the property, or (d) the trustee of a discretionary trust of which the person or a close relative of the person is a beneficiary obtains a beneficial interest in the property, or (e) a member of a firm or partnership of which the person or a close relative of the person is also a member obtains a beneficial interest in the property, or (f) the person or a close relative of the person has, directly or indirectly, a right to participate in the income or profits of a business carried on for profit or gain and another person carrying on that business obtains a beneficial interest in the property. (5) Without limiting this section, each of the following is considered to constitute the obtaining of a beneficial interest in property - (a) purchasing property, (b) obtaining an option to purchase property, (c) being granted a general power of appointment in respect of property. Note - … property includes an interest in property."

Ground 2 - the claimed common intention

1. The principles relating to a claim in rectification for mutual mistake were not in dispute. They are summarised by Griffiths AJA at [157]-[166] below. Consistently with that summary, it was necessary for the appellant to discharge the onus of making out its claim, doing so by reference to clear and convincing proof of the parties' common intention. The standard required is onerous for good reason. Where parties have committed themselves to a written contract, the courts will not readily engage in a process of rewriting it.
2. As White JA indicates at [65] above, the fact that a defendant does not go into evidence does not necessarily defeat such a claim. That party's intention may be revealed directly by statements they have made or in documentary evidence, or may be inferred more indirectly from a range of sources. But the onus remains on the claimant to make the claim good. The fact that the defendant has not gone into evidence may give rise to a Jones v Dunkel inference of one kind or another but, as addressed further below, is not of itself enough to fill an evidentiary gap relating to intention and understanding.
3. Here, the primary judge found that when signing the SAA, Mr Wang, on behalf of the appellant, "understood and intended that the agent's entitlement under the Sole Agency Agreement to lodge caveats would include protection for the agent in relation to commissions which were then owing by C88 for properties which had already been sold by the agent" (at [87]). There has been no challenge to that finding. The issue is whether or not Mr Fayad, on behalf of the respondent, had the same intention and understanding such that the SAA did not accurately record their agreement.
4. Mr Fayad did not give evidence. Whether or not he had the requisite intent depends upon what can be drawn from the evidence, directly or by inference. There are no relevant documents in evidence going to this issue, leaving aside the SAA itself.
5. The highpoint of the appellant's case for rectification is Mr Wang's recitation of two conversations with Mr Fayad - the first in March or April 2018 (as quoted by White JA above at [21]), and the second around early April 2018 (as quoted above at [24]). Like Griffiths AJA, and without doubting the primary judge's acceptance of the evidence of Mr Wang, I have some reservations about placing great reliance on the exactitude of his recollection. As was said in the rectification suit in Bonhote v Henderson [1895] 1 Ch 742 at 748-749 (a decision upheld on appeal in Bonhote v Henderson [1895] 2 Ch 202): If there are documents, such as written instructions, evidencing the intention of the parties, the course may be clear; but if that intention rests on statements of settlors made, perhaps, long after the date of the deed, when haply precise memory is wanting and circumstances have changed, it behoves the Court to act warily.

Grounds 3 and 4 - the drawing of a Jones v Dunkel inference

1. Ground 3 claimed that the primary judge erred in declining to draw an inference "that any evidence given by Mr Sam Fayad and/or Mrs Chahida Khattar would not have assisted the respondent in relation to the issue of whether the appellant and respondent had the common intention in Ground 2". Ground 4 asserted that her Honour erred in finding that the respondent had adduced evidence of a sufficient explanation as to why Mr Fayad had not been called to give evidence.
2. Let it be assumed, without deciding, that the inference sought by the appellant should have been drawn. The rule in Jones v Dunkel "permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party": Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [64]. The rule does not permit the bridging of gaps in evidence. As Ward JA said in RHG Mortgage Corporation Ltd v Ianni [2016] NSWCA 270 at [161] (Meagher JA agreeing at [29]; citation omitted): a Jones v Dunkel inference, if one does arise, can do no more than permit the court to infer that the uncalled evidence or missing material would not have assisted the relevant party's case; it does not permit the court to infer that the uncalled evidence would have been positively damaging to that case. Thus, it allows for the more ready acceptance of evidence which might have been contradicted but which was not. What a Jones v Dunkel inference does not permit is a choice between two guesses or conjectures, nor does it supply missing gaps in evidence.
3. Similarly, Besanko, Perram and Katzmann JJ said the following in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd [2011] FCAFC 53 at [79] (citations omitted): But the fact that one can infer that a party was afraid to call some particular witness or tender some particular document can take a trier of fact only so far. It is accepted that where a party fails, without explanation, to call a witness who that party might have been expected to call and whose evidence might have elucidated the matter in dispute, then the inference may be drawn that the evidence of the absent witness would not have assisted the party that failed to call that witness. By itself that inference is frequently somewhat barren, for knowing that the evidence of a witness would not have assisted tells one nothing about what the witness's evidence affirmatively would have been. Often more directly useful is the allied principle that in such a case the trier of fact may more confidently draw any inference unfavourable to the party that failed to call that witness if that witness appears to be in a position to cast light on whether the inference should be drawn. Neither inference is mandatory and, generally speaking, these inferences only become material where the balance of the evidentiary record is equivocal.

Ground 5 - the drawing of an inference against the appellant about documents

1. The appellant's ground 5 is that the primary judge erred in drawing an inference against the appellant with respect to its failure to adduce documentary evidence relating to the drafting and provision of the SAA. As explained, I have reached the conclusion that the appellant's rectification case fails regardless of whether or not such an inference should be drawn against the appellant. In that context it is not necessary to address ground 5. In any event, senior counsel for the appellant indicated in his reply submissions that "it seemed to us to be common ground between the parties that [this issue] did not affect the outcome of the case". The ground thus seemed to have fallen away in any event.

Conclusion

1. I would thus dismiss the appeal insofar as it relates to the rectification claim. In my view the primary judge was correct to reject that claim. I agree with the orders proposed by Griffiths AJA.
2. GRIFFITHS AJA: I have had the advantage of reading in draft the reasons for judgment of White JA. I gratefully adopt his Honour's description of the background facts.
3. I respectfully agree with White JA's reasons for upholding ground 1 of the amended notice of appeal (which relates to whether or not the Sole Agency Agreement (SAA) created an equitable charge) and for rejecting the notice of contention.
4. I respectfully disagree, however, with his Honour's conclusion that grounds 2-5 (which relate to the issue of rectification and/or the principle in Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8) should be upheld. In brief, this is because I am not persuaded that the appellant has discharged its heavy onus of establishing by clear and convincing evidence the existence of the asserted common intention.
5. This means that I would grant a declaration in narrower terms to that proposed by White JA relating to the scope of the equitable charge. Rather than extending to the schedule of lots which is Annexure "A" to the amended notice of appeal, I consider that the charge should be limited to the debt relating to outstanding commission concerning the lots as listed in the Agency Lot Schedule which is an annexure to the Supplementary Agency Agreement dated 12 August 2019.
6. I shall now explain why grounds 2-5 should be rejected.

Relevant legal principles concerning rectification summarised

1. First, it is well settled that a written document which is being executed by the parties is presumed to be the true record of their agreement subject to a defence of non est factum or rectification (see Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471; [2004] HCA 55 at [33] per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ).
2. Secondly, where rectification is sought, the party seeking rectification carries the onus, which Gleeson JA has aptly described as "a heavy one" in Newey v Westpac Banking Corporation [2014] NSWCA 319 at [170].
3. Thirdly, and relating to the content of that heavy onus, as noted by Perry Herzfeld and Thomas Prince in Interpretation (2nd ed, 2020, Thomson Reuters) at [28.120], it is well settled that the relevant common intention must be proved in the "clearest and most satisfactory manner", an expression used by Lord Chelmsford LC in Fowler v Fowler (1859) 4 De G & J 250 at 265, as approved for example in Australian Gypsum Ltd v Hume Steel Ltd (1930) 45 CLR 54 at 64; [1930] HCA 38 and Maralinga Pty Ltd v Major Enterprises Pty Ltd (1973) 128 CLR 336 at 349; [1973] HCA 23 and see also Newey at [170] per Gleeson JA.
4. Fourthly, the following obiter observations by Tobias JA (with whom Mason P and Campbell JA agreed) in Ryledar Pty Ltd v Euphoric (2007) 69 NSWLR 603; [2007] NSWCA 65 at [182], [185]-[186] provide helpful guidance on the kind of evidence that might constitute "clear and convincing proof" of the parties' common intention which includes not only objective material but also evidence of the parties' subjective states of mind: It follows from the foregoing that first, the common intention which must be established by clear and convincing proof to justify rectification must be the actual or true common intention of the parties. Second, evidence of that intention may be ascertained not only from the external or outward expressions of the parties manifested by their objective words or conduct but also from evidence of their subjective states of mind. … Fifth, it follows that where the correspondence and/or conduct positively establishes the necessary common intention, then assertions by the party opposing rectification of his or her subjective state of mind which is inconsistent with that party's outward manifestation of his or her intention, being unexpressed and uncommunicated, is unlikely to trump his or her expressed intention. But this is because that party is unlikely to be believed. Sixth, where as in the present case, the outward expression of the parties' common intention is at best inconclusive, then establishing that the subjective states of mind of the parties evinces the relevant common intention becomes critical if the necessary standard of proof to support an order for rectification is to be achieved.

The primary judge's reasons for refusing rectification summarised

1. As White JA has observed, rectification was not sought of the terms of cll 12.9, 12.10 or 12.11. In the plaintiff's amended summons filed on 26 October 2021, the order seeking rectification was directed only to the definition of "Commission" (and related definitions) in the SAA. The primary judge noted at PJ[71] that the plaintiff sought rectification to amend the definition of "Commission" as follows (the tracking reflects amendments by the plaintiff): "Commission" or "commission entitlement" or "agent commission" means the commission plus interest for any late payment of the commission in accordance with this Agreement, which the Owner has agreed to pay to that is agreed between the Owner and the Agent for the sale of each Agency Lot, and for any lot in the Development which the Agent has already caused the sale of for the benefit of the Owner prior to the date of this Sole Agency Agreement.
2. In the notice of appeal filed on 31 August 2022, the appellant sought an order that the SAA be rectified by correcting the definition of "Commission" so as to read the same as that sought below (that formulation was also retained in the amended notice of appeal).
3. The primary judge was not persuaded that the plaintiff had discharged the heavy onus of establishing by "clear and convincing proof" that the parties had a common intention that the caveat protection afforded by cll 12.9, 12.10 and 12.11 of the SAA extended to commissions payable to the plaintiff prior to 20 April 2018 (being the date of execution of the SAA). Her Honour rejected the plaintiff's contention that the requisite common intention was established by the four conversations between Mr Wang and Mr Fayad. In brief, the primary judge made the following primary findings regarding the insufficiency of evidence to establish common intention.
4. First, while these conversations between Mr Wang and Mr Fayad indicated each party's individual intention, none of those conversations established a common intention in the relevant sense.
5. Secondly, it is reasonable to think Mr Fayad would have wanted to see a final draft of the SAA and, in particular, the precise detail of the security sought by the plaintiff before considering whether that form of security was acceptable to the defendant.
6. Thirdly, whether the clauses dealing with security were sufficient to protect the plaintiff's interests was hardly a matter on which the defendant would have been expected to comment.

Common intention of the parties

1. For the following reasons, I consider that the appellant has failed to establish any appellable error in the primary judge's conclusion that it did not discharge its heavy onus of establishing the requisite common intention so as to justify rectification.
2. At the risk of some repetition with White JA's reasons, having regard to the central significance of Mr Wang's evidence concerning the terms of the four conversations he had with Mr Fayad, it is desirable to set out the entirety of [16]-[22] of Mr Wang's affidavit sworn on 12 October 2021: 16. Around March 2018, the South, East and West buildings of Somerset were nearly ready for settlement, Sam called me and we had conversation to the following effect - and Chad call me to ask for help. Sam: Brother, I need your help, at settlement our funder only allowed you to deduct 3.3% of contract price from the deposit you hold. The balance is required to be provided at settlement for payment to our funder. Justin: No, I can't agree with this. This is only opportunity for PIA to get our full commission for the sale. Sam: Brother, we have problem with our cash flow. If you do not agree with this the settlement will not happen. Then you, we and your buyers will all be in trouble. Justin: How will PIA commission be protected? Sam: North building will be settled next year. You can keep all deposit for North building for outstanding commission when North building starts settle. Justin: If the deposits are not enough to pay all balance of commission I need put caveat on your remaining units. Sam: It is ok, but please make sure your caveat will not affect our sale and settlement. 17. Chad (Chahida) the wife of Joe Khattar also called me around the time of the call from Sam Fayad, and the conversation was similar to the conversation which I reported above of Sam Fayad's request concerning the deposit and Dyldam's funder. Considering the bigger picture, continuing relationship with Dyldam, I agreed with their 3.3% proposal. PIA successfully settled sold units in the East, West and South buildings and only received 3.3% of contract price towards part payment of PIA's commission from the sales. 18. In or around end of March 2018 or early April 2018, the defendant wanted PIA to sell unsold units in the Somerset including some unsold units in the 2nd EAA with new sole agency agreement. Prior to this time, I had conversations with Sam Fayad on more than one occasion concerning the delays in payment of PIA's commission in several developments, including conversation to the following effect: Justin: Please help with payments. Payments are outstanding in Viewpoint, Vivo and Northgate. Dyldam has also delayed in making payments for the Somerset sales. PIA has to honour the payment to its sale consultants even PIA has not received payment. Please follow up and make some payments to help with my cash flow. Sam: If you can settle sold units and sell few more units, we will pay you all outstanding commission, otherwise PIA, we and your clients are all in trouble. You will be fully paid when North building settles. 19. After some discussion Sam Fayad and I agreed to change the commission rate to 5.5% for further sales on sole agency basis and not exclusive agency basis. I had also raised my concern for security because of late payments, and I had the following discussion with Sam Fayad - Justin: Can you and Joe provide personal guarantee to pay all unpaid commission and interest on late payments? Sam: No, you know I do not like to provide personal guarantee. I do not think Joe would be agreeable to providing personal guarantee as well. At least you hold 10% deposit, it is enough for your commission and penalty interest. Justin: I need some security for the significant amounts owing to PIA in Somerset. Sam: What security do you want? Justin: I need add caveat clause in our agency agreement. I will send you the agency agreement on terms like the replacement exclusive agency agreement of 2015, but changing to sole agency agreement, commission rate at 5% plus GST and caveat provisions to protect PIA. Sam: OK. My office will send you the list of the further units. Put them in your sole agency agreement and send to me. We can discuss further afterwards. 20. After receipt of the further list and discussion including on the sale prices, I arranged to send to Sam Fayad a Sole Agency Agreement incorporating the list of 34 additional units, the caveat provisions at paragraphs [12.9] [12.10] and [12.11], PIA's commission entitlement to 5.5% of the Contract Price (inclusive of GST); extension of agency period to 90th business day from the defendant's providing the registered strata plan and occupation certificate; increase 1st stage payment to $7,700 within ten business days after exchange of contract (contract date). 21. Sam Fayad and I had further discussion in or around early April 2018 to the following effect - Justin: It is changed to sole agency and not exclusive. The interest provision remains the same. There is no personal guarantee, and the added part is the security provisions in clauses 12.9, 12.10 and 12.11 to safeguard the commission and interest which C88 has failed to pay for the sales and further sales and the extension of the agency period and payment of the first Instalment of the commission. Sam: Can you leave out the caveat part? Justin: No, the caveat part is necessary and important. If PIA is not paid upon completion of contracts of the sold agency lots since 2015 or any further sales PIA will lodge. Sam: Okay, but can you agree not to lodge caveats until the remaining stages have completed and the strata plans registered, and PIA has still not received payment for settlement of the sold lots. Justin: Okay. 22. Sam Fayad and I then signed respectively for the defendant and PIA the Sole Agency Agreement on or about 20 April 2018 ("the SAA") but the SAA contains only the year 2018.

Jones v Dunkel

1. Grounds 3, 4 and 5 of the amended notice of appeal all relate to the principle in Jones v Dunkel. I have summarised her Honour's reasons on this matter at [176] above.
2. I agree with White JA that the principle can apply in a rectification suit. In particular, I agree with his Honour's observation that such a suit should not be successfully defended simply by the other party not going to evidence itself. Ultimately, the issue whether or not the principle applies depends on the particular circumstances and, as his Honour correctly points out, may involve a question of degree.
3. The Jones v Dunkel principle was recently considered by Kirk JA (Leeming and Mitchelmore JJA agreeing) in Ling v Pang [2023] NSWCA 112 at [20]-[28]. As Kirk JA observed at [21], after referring to Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63], there are two types of inferences which may be drawn where the principle applies (citations omitted): The rule in Jones v Dunkel is that the unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case. ... The failure to call a witness may also permit the court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness, if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.
4. I respectfully agree with Kirk JA's statement at [27] as to the rationale underlying the principle: What underlies the principle in Jones v Dunkel is that the failure to call the witness "serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party": Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8; at 320-1 at 320-321 per Windeyer J; see also Fabre v Arenales (1992) 27 NSWLR 437 at 449 per Mahoney JA. The circumstances in which such a fear may be inferred are various.
5. Having regard to the wording of ground 3 of the amended notice of appeal and the appellant's outline of submissions at [64], it appears that the appellant relied upon the first type of inference described by Kirk JA in Ling. The appellant's claim was that any evidence given by Mr Fayad and/or Mrs Khattar "would not have assisted the respondent in relation to the issue of whether the appellant and the respondent had the common intention in Ground 2".

Conclusion

1. For these reasons, I propose that the appeal be allowed in part. As I have indicated above, I consider that the declaration regarding the equitable charge needs to be narrower so as to reflect the appellant's failure to obtain rectification. The parties should have an opportunity to agree the terms of a declaratory order, as well as orders as to costs of both the proceeding and the appeal.
2. Accordingly, I propose the following orders: 1. The appeal be allowed in part. 2. Set aside the order dated 12 August 2022. 3. Subject to order (4), remit the proceedings to the primary judge for the purpose of considering making orders for judicial sale. 4. Within 14 days hereof, the parties are to seek to agree the form of a declaratory order which gives effect to these reasons, as well as seek to agree costs of the proceeding both below and on appeal. If they are unable to reach agreement, each should within that time provide a brief written outline of submissions, not exceeding four pages in length, in support of their respective positions. The remaining issues will then be finalised on the papers and without a further oral hearing.

Endnote

1. The respondent did not plead to the allegation and is therefore taken to have admitted it: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [62]-[63]; Zelden v Sewell Henamast Pty Ltd [2011] NSWCA 56 at [8]. 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: 06 December 2023