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Gobbert v Elders Rural Services Australia Limited[2017] QDC 219

Gobbert v Elders Rural Services Australia Limited[2017] QDC 219

DISTRICT COURT OF QUEENSLAND

CITATION:

Gobbert & Ors v Elders Rural Services Australia Limited & Anor [2017] QDC 219

PARTIES:

JASON STANLEY GOBBERT, ALEXANDER DEAN GOBBERT AND STANLEY MORTON GOBBERT trading as GOBBERT BROS

(Plaintiffs)

v

ELDERS RURAL SERVICES AUSTRALIA LIMITED ACN 004 045 121 

(First Defendant)

and

RURAL BANK LIMITED ACN 083 938 416

(Second Defendant)

FILE NO/S:

626 of 2016

DIVISION:

Civil

PROCEEDING:

Claim

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

30 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

22, 23, 24, 25 May 2017 and 17 August 2017

JUDGE:

Kefford DCJ

ORDER:

The Plaintiffs’ Claim is dismissed.

The parties are to file and serve written submissions as to costs by 6 September 2017.

CATCHWORDS:

TRADE AND COMMERCE – COMPETITION, FAIR TRADING AND CONSUMER PROTECTION – CONSUMER PROTECTION – MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS – FALSE REPRESENTATIONS GENERALLY – where the plaintiffs applied for finance from the second defendant – where the first defendant was agent for the second defendant – where the plaintiffs claim that an employee of the first defendant impliedly represented that finance had been approved – where the second defendant had not approved finance – where the plaintiffs claim they suffered loss and damage because of misleading conduct arising out of the misrepresentation – whether an employee of the first defendant impliedly represented that finance had been approved – whether the plaintiffs relied on any such representation, to their disadvantage, in entering into the contract – whether the representation caused the loss

LEGISLATION:

Australian Securities and Investment Commission Act 2001 (Cth), s 12BA, s 12BB, s 12DA, s 12GF

CASES:

Adour Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia & Ors [1991] FCA 502; [1991] ASC 56-107, applied

Amalgamated Television Services v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, applied

Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640, applied

Butcher v Lachlan Elder Realty Pty Limited [2004] HCA 60; (2004) 218 CLR 592, applied

Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304, applied

Contact Minerals Pty Ltd v Mineral Providers Australia Pty Ltd [2001] FCA 1042, applied

Downey & Anor v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199, applied

Linfield Developments Pty Limited v Shuangxing Development Pty Limited [2016] NSWSC 68, followed

National Exchange Pty Ltd (ACN 006 079 974) v Australian Securities & Investments Commission [2004] FCAFC 90; (2004) 61 IPR 420, applied

Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, applied

COUNSEL:

D J Pyle with S Forder for the Plaintiffs

N Ferrett for the First Defendant

B Porter QC for the Second Defendant

SOLICITORS:

Shine Lawyers for the Plaintiffs

Crawford Legal for the First Defendant

DibbsBarker for the Second Defendant

TABLE OF CONTENTS

Introduction 4

The cause of action and issues in dispute4

Assessment of witness credibility5

Relevant principles with respect to misleading or deceptive conduct7

Reasonable person in the position of the Plaintiffs10

Representations as to future matters12

Causation12

The pre-auction context13

The Plaintiffs’ business13

The relationship between Elders and Rural Bank14

The Plaintiffs’ history with Elders and Rural Bank15

Relationship with Elders bank managers15

First application for finance to purchase Balgai16

Second application for finance to purchase Balgai18

Consistency in the process for finance applications for Balgai20

Communications with respect to the Property21

Did the Defendants engage in conduct?26

The conversation between Mr Gee and Mr Nelson on 15 October 201427

Statement by Mr Nelson to Mr Gobbert on 16 October 201432

The statement “You’ve looked at our numbers”35

The statement that Mr Nelson had “just been upstairs”36

The statements about the shirt36

The statements about the deposit36

Events at the auction38

The meeting at the coffee shop before the auction38

The statement at the auction43

Was there misleading or deceptive conduct?48

Meaning and effect of the 15 October 2014 conversation49

Meaning and effect of the 16 October 2014 conversation49

Events at the auction53

Conclusion regarding misleading or deceptive conduct55

Was there reliance on misleading or deceptive conduct?55

Conclusion57

Introduction

  1. [1]
    On 17 October 2014, Mr Jason Gobbert, on behalf of the Plaintiffs, made an unconditional bid of $6.8 million at an auction to purchase a rural holding known as Ballandool (“the Property”).  The Plaintiffs’ allege that, at the time Mr Gobbert[1] made the unconditional bid, he had been misled, by the conduct of Mr Paul Nelson, into believing that Rural Bank Limited (“Rural Bank”) had or would approve finance.  Rural Bank later declined to provide finance and the Plaintiffs were unable to settle on the Property.  Their deposit of $680 000 was forfeited.
  1. [2]
    The Plaintiffs allege that absent the conduct by Mr Nelson, the unconditional bid would not have been made. 
  1. [3]
    Mr Nelson was an employee of the First Defendant, Elders Rural Services Australia Limited (“Elders”), and agent of Rural Bank. 
  1. [4]
    The conduct on which the Plaintiffs rely to claim damages is Mr Nelson’s pre-auction conduct together with a statement alleged to have been made by Mr Nelson to Mr Gobbert immediately before the winning bid, in response to Mr Gobbert’s question “what do you think?”, that “it will be a bit of a stretch”.[2]

The cause of action and issues in dispute

  1. [5]
    Mr Nelson’s pre-auction conduct and his statement at the auction are alleged to be misleading or deceptive within the meaning of s 12DA of the Australian Securities and Investment Commission Act 2001 (Cth), which provides: 

“[a] person must not, in trade or commerce, engage in conduct in relation to financial services that is misleading or deceptive or is likely to mislead or deceive.”

  1. [6]
    The Plaintiffs seek damages, pursuant to s 12GF(1) of the Australian Securities and Investment Commission Act 2001, from Rural Bank, or alternatively Elders, in the amount of the forfeited deposit of $680 000. 
  1. [7]
    To succeed, the Plaintiffs must establish that:
  1. (a)
    Elders or Rural Bank (or both) engaged in conduct;
  1. (b)
    the conduct was in trade or commerce;
  1. (c)
    the conduct was in relation to financial services;
  1. (d)
    the conduct was misleading or deceptive or likely to mislead or deceive; and
  1. (e)
    the conduct caused the Plaintiffs to suffer loss.
  1. [8]
    Elders and Rural Bank accept that if the conduct on which the Plaintiffs rely occurred, it was conduct in trade or commerce and in relation to financial services.[3]
  1. [9]
    There is no dispute about quantum.
  1. [10]
    The key issues in dispute are:
  1. (a)
    whether Elders and Rural Bank, through Mr Nelson, engaged in the relevant conduct;
  1. (b)
    whether the conduct was misleading or deceptive or likely to mislead or deceive; and
  1. (c)
    whether there was reliance on any implied representation.

Assessment of witness credibility

  1. [11]
    There is a dispute between the parties about whether Mr Nelson made particular statements. Issues of credit are live.
  1. [12]
    In Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, at 431-432, Lord Pearce made the following observations about assessing credit:

““Credibility” involves wider problems than mere “demeanour” which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary docu­ments are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”

  1. [13]
    A more recent exposition of similar concepts applied to the commercial context was given by Pembroke J in Linfield Developments Pty Limited v Shuangxing Development Pty Limited [2016] NSWSC 68, where his Honour observed:

“Credibility, Witnesses & Corporate Entities

  1. I should make some preliminary remarks about the affidavit and oral evidence of the witnesses. As always, the contemporaneous written records created before the threat of litigation were a more reliable indicator of what occurred than the competing contentious accounts of conversations drafted at a later date under the guiding hand of a party’s solicitor. As I said in Mealey v Power [2015] NSWSC 1678 at [4]: ‘...what matters most is usually the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts’.
  1. The limitations of affidavits as vehicles for conveying an accurate account of past oral communications are well-known ...
  1. While affidavits are, for those reasons, often unreliable touchstones of the truth, oral evidence is frequently also unreliable for a different reason. In Watson v Foxman (1995) 49 NSWLR 315 at 319, McLelland CJ in Eq succinctly stated what we all recognise as an everyday aspect of the judicial process:

...human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said.

  1. Lord Pearce explained these issues, and emphasised the ‘utmost importance’ of contemporary documents, in his speech in  Onassis  and  Calogeropoulos  v Vergottis [1968] 2 Lloyd’s Rep 403 at 431, a successful appeal by a litigant named Aristotle Socrates Onassis :

...

  1. Given those considerations, a healthy scepticism about the reliability of affidavit and oral evidence of conversations is often justified – in many types of cases but especially in commercial cases. In recent times, no one has put the matter quite so decisively as Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [22]:

... the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.

He added perceptively however:

This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events.”

Relevant principles with respect to misleading or deceptive conduct

  1. [14]
    In Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304, at 318-320 [24]-[27], by reference to an equivalent section in the Fair Trading Act 1987 (NSW), French CJ made the following observations about whether particular conduct is misleading or deceptive:

“The question whether conduct is misleading or deceptive or likely to mislead or deceive within the meaning of s 42 of the Fair Trading Act is logically anterior to the question whether a person has suffered loss or damage thereby for the purposes of s 68. The distinction between characterisation of the conduct and determination of the causation of the claimed loss said to result from it must be maintained. In so saying, it is necessary to acknowledge that there may be practical overlaps in the resolution of these logically distinct questions. The characterisation of conduct may involve assessment of its notional effects, judged by reference to its context. The same contextual factors may play a role in determining causation.

Characterisation is a task that generally requires consideration of whether the impugned conduct viewed as a whole has a tendency to lead a person into error[4]. It may be undertaken by reference to the public or a relevant section of the public. In cases of misleading or deceptive conduct analogous to passing off and involving reputational issues, the relevant section of the public may be defined, according to the nature of the conduct, by geographical distribution, age or some other common attribute or interest. On the other hand, characterisation may be undertaken in the context of commercial negotiations between individuals. In either case it involves consideration of a notional cause and effect relationship between the conduct and the state of mind of the relevant person or class of persons. The test is necessarily objective[5].

This Court has drawn a practical distinction between the approach to characterisation of conduct as misleading or deceptive when the public is involved, on the one hand, and where the conduct occurs in dealings between individuals on the other. In the former case, the sufficiency of the connection between the conduct and the misleading or deception of prospective purchasers[6] “is to be approached at a level of abstraction not present where the case is one involving an express untrue representation allegedly made only to identified individuals”. Where the conduct is directed to members of a class in a general sense, then the characterisation inquiry is to be made with respect to a hypothetical individual “isolate[d] by some criterion” as a “representative member of that class”[7]. In the case of an individual it is not necessary that he or she be reconstructed into a hypothetical, “ordinary” person. Characterisation may proceed by reference to the circumstances and context of the questioned conduct. The state of knowledge of the person to whom the conduct is directed may be relevant, at least in so far as it relates to the content and circumstances of the conduct.

In Butcher v Lachlan Elder Realty Pty Ltd[8] the approach to characterisation of conduct directed to identified individuals was set out in the joint judgment of the majority as follows[9]:

“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.”

Although this passage begins by referring to the need to establish a causal link between the impugned conduct and the claimed loss, it is clear that thereafter their Honours were addressing the task of characterisation.”

(emphasis added)

  1. [15]
    Similarly, Gummow, Hayne, Heydon and Kiefel JJ stated at 341 [102]:

“Using tools of analysis drawn from the common law of deceit (misrepresentation and reliance) within the statutory framework provided by ss 42 and 68 of the Fair Trading Act may sometimes be helpful in identifying contravening conduct and deciding whether loss or damage was suffered by the contravention. But as McHugh J correctly pointed out in Butcher v Lachlan Elder Realty Pty Ltd[10], the “conduct” with which s 52 of the Trade Practices Act 1974 (Cth) deals is not confined to “‘representations’, whether they be representations as to matters of present or future fact or law”[11]. This proposition applies with equal force to s 42 of the Fair Trading Act. References to misrepresentation or reliance must not be permitted to obscure the need to identify contravening conduct (here, misleading or deceptive conduct) and a causal connection (denoted by the word “by”) between that conduct and the loss and damage allegedly suffered. As McHugh J also pointed out in Butcher[12], with particular reference to s 52 of the Trade Practices Act, but with equal application to s 42 of the Fair Trading Act:

“The question whether conduct is misleading or deceptive or is likely to mislead or deceive is a question of fact. In determining whether a contravention of s 52 has occurred, the task of the court is to examine the relevant course of conduct as a whole. It is determined by reference to the alleged conduct in the light of the relevant surrounding facts and circumstances. It is an objective question that the court must determine for itself[13]. It invites error to look at isolated parts of the corporation’s conduct. The effect of any relevant statements or actions or any silence or inaction occurring in the context of a single course of conduct must be deduced from the whole course of conduct[14]. Thus, where the alleged contravention of s 52 relates primarily to a document, the effect of the document must be examined in the context of the evidence as a whole[15]. The court is not confined to examining the document in isolation. It must have regard to all the conduct of the corporation in relation to the document including the preparation and distribution of the document and any statement, action, silence or inaction in connection with the document.”

(emphasis added)

  1. [16]
    It is not enough to consider whether the “precise literal words” have the relevant meaning or effect; it is also necessary to look to the relevant context and circumstances.[16]
  1. [17]
    Acts and omissions that qualify or point against a particular meaning or effect may not always be enough to avoid the conclusion that the conduct was misleading or deceptive in the circumstances. As was noted in National Exchange Pty Ltd (ACN 006 079 974) v Australian Securities & Investments Commission [2004] FCAFC 90; (2004) 61 IPR 420 at 437 [55]:

“Where the disparity between the primary statement and the true position is great it is necessary for the maker of the statement to draw the attention of the reader to the true position in the clearest possible way.”

Reasonable person in the position of the Plaintiffs

  1. [18]
    There is no doubt that the courts have imposed an objective element of reasonableness on the question of whether conduct had a particular meaning or effect.
  1. [19]
    In Downey & Anor v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199, Keane JA (as his Honour was then, Williams JA and Atkinson J agreeing) observed at 25-26 [69]:

“I would add that, to my mind, the description of the target class propounded by the appellant, not only applies to the putative members of the class at which the advertising was found by the learned primary judge to be directed, but also serves as a good description of the Downeys themselves given the evidence that emerged about their circumstances at trial. That may be important so far as the Downeys’ case is concerned because, as is apparent from the decisions of the High Court in Campomar Sociedad Limitada v Nike International Ltd and Butcher v Lachlan Elder Realty Pty Ltd it is only necessary to consider the response of “ordinary” or “reasonable” members of a class of persons to conduct that is alleged to be misleading or deceptive when that conduct is directed to the public at large. That approach has been held to be inappropriate in cases like the Downeys’ where:

“… monetary relief is sought by a plaintiff who alleges that a particular representation was made to identified persons, of whom the plaintiff was one.”

In such circumstance the proper approach has been held to involve an inquiry into what “a reasonable person in the position of the [representees], taking into account what they knew, would make of the [representor]’s behaviour””.

(emphasis added, footnotes omitted)

  1. [20]
    In making that observation, his Honour referred to the following passage from Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at 608 [50]:

“The Court of Appeal declined to “accord [the disclaimers] decisive significance”, but they do have some significance. If the “conduct” of the agent is what a reasonable person in the position of the purchasers, taking into account what they knew, would make of the agent's behaviour, reasonable purchasers would have read the whole document, given its importance, its brevity, and their use of it as the source of instructions to professional advisers. There are circumstances in which the “conduct” of an agent would depend on different tests. For example, those tests might turn on what purchasers actually made of the agent's behaviour, whether they were acting reasonably or not, and they might also call for consideration of how the agent perceived the purchasers. Tests of that latter kind might be appropriate for plaintiffs of limited experience acting without professional advice in rushed circumstances. …”

(emphasis added, footnotes omitted)

  1. [21]
    Ultimately, the question of whether conduct is misleading requires a consideration of the reasonableness of the complainant.
  1. [22]
    Accordingly, whether conduct is misleading or deceptive is not determined simply by the plaintiff establishing that he or she adopted an erroneous assumption. It remains necessary for the plaintiff to establish that an erroneous assumption was reasonably adopted in the circumstances.
  1. [23]
    The point is again conveniently summarised in Downey & Anor v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199 at 26 [72] as follows:

“In the first place, it should be made clear that the phrase "erroneous assumption" is not a term of art. As Deane and Fitzgerald JJ observed in Taco Co of Australia Inc v Taco Bell Pty Ltd, in a passage quoted with apparent approval by the High Court in Campomar, the fact is that “no conduct can mislead or deceive unless the representee labours under some erroneous assumption”. The issue is, as the High Court explained in Campomar, whether the erroneous assumption is extreme and fanciful or is of a kind that may be attributed to an ordinary or reasonable member of the class of person at whom the allegedly misleading and deceptive conduct is directed. It is therefore necessary to determine the true nature of the erroneous assumption held by the Downeys and then to consider whether or not the holding of this assumption was reasonable.”

(emphasis added, footnotes omitted)

  1. [24]
    Here, the conduct of Mr Nelson is to be assessed in relation to the Plaintiffs alone. As such, it is necessary to consider what matters were known to the Plaintiffs arising from their dealings and communications with Rural Bank (including through Elders), or matters that would be known to a reasonable person in their position that are relevant to the meaning the Plaintiffs gave to the conduct relied upon.
  1. [25]
    The standard of a reasonable person in the position of the Plaintiffs is not one of “unexpected … sceptical vigilance”,[17] rather one having regard to all of the relevant features of the parties, the transaction and the circumstances in question.
  1. [26]
    In assessing whether conduct was misleading or deceptive in breach of the statutory prohibition, the question is whether a reasonable person in Mr Gobbert’s position could have formed the erroneous assumptions alleged by the Plaintiffs: i.e. that finance had been, or would be, approved for the Property.
  1. [27]
    Even if the court concludes that certain conduct was capable of giving rise to one or both of the implied representations, the Plaintiffs are not entitled to relief unless they establish they in fact relied upon one or both of those representations in making the bid for the Property.

Representations as to future matters

  1. [28]
    The question whether conduct having a particular meaning or effect is misleading or deceptive, or likely to mislead or deceive, when it concerns a future matter, falls to be resolved by reference to s 12BB of the Australian Securities and Investment Commission Act 2001, which provides:

“12BB Misleading representations with respect to future matters

  1. (1)
    If:
  1. (a)
    a person makes a representation with respect to any future matter (including the doing of, or the refusing to do, any act); and
  1. (b)
    the person does not have reasonable grounds for making the representation;

the representation is taken, for the purposes of Subdivision D (sections 12DA to 12DN), to be misleading.”

Causation

  1. [29]
    In relation to causation, in Campbell v Backoffice Investments Pty Ltd [2009] HCA 25, (2009) 238 CLR 304 French CJ observed at 320 [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 the misstatement would not ordinarily be causative of any loss or damage flowing from the subsequent conduct of the addressee.”

The pre-auction context

The Plaintiffs’ business

  1. [30]
    The Plaintiffs operate a farming business in the Dirranbandi district of Queensland, encompassing three properties: Byra, Davirton and Challenor Park. The total size of the properties is about 83 000 acres, of which approximately 43 000 acres is used for growing crops including wheat, barley, sorghum, chickpeas and oats.[18] 
  1. [31]
    Mr Gobbert manages the financial aspects of the business, including by arranging borrowings on behalf of the partnership.[19]  Mr Gobbert has been the agent of the partnership in this respect at all relevant times.[20]
  1. [32]
    Mr Gobbert was experienced in conducting the commercial and financial affairs of a grain growing enterprise, including in seeking and obtaining finance. From at least 1999 until October 2014, Mr Gobbert had conducted the financial and business affairs of the Plaintiffs’ grain growing business. During that time, Mr Gobbert guided the Plaintiffs in:[21]
  1. (a)
    acquiring at least three rural properties:
  1. (i)
    Byra, which was purchased for $330 000 in 1996;
  1. (ii)
    Davirton, which was purchased for $650 000 in 1999; and
  1. (iii)
    Challoner Park, which was purchased for $1 650 000 in 2005;
  1. (b)
    conducting a large and apparently successful grain farming business, which had a turn-over of millions of dollars in good years;
  1. (c)
    administering large finance facilities, being in the order of $8 - 9 million; and
  1. (d)
    financing and refinancing their facilities on at least three occasions.[22]

The relationship between Elders and Rural Bank

  1. [33]
    Elders and Rural Bank are now separate entities. However, their relationship extends back to the commencement of Rural Bank, when Elders was a 50 per cent shareholder in Rural Bank.[23]  Rural Bank was, until about 2009, known as Elders Rural Bank and used an Elders logo.[24]  Elders’ shareholding in Rural Bank has diminished over the years and it now no longer has shares in the company, but Elders continues to provide services to Rural Bank and distribute its products to customers.[25]
  1. [34]
    Rural Bank does not have any physical branches of its own in Queensland.[26]  For those Rural Bank products distributed by Elders, the customer’s point of contact regarding its finances with Rural Bank was Elders.[27]
  1. [35]
    Elders and Rural Bank share a computer system known as the Agri-Banking System, which is live to staff of both entities. The system allows staff to make relevant notes or records of interactions with customers and to prepare, submit, action and decide upon loan applications.[28]
  1. [36]
    It is Elders’ role to collect the relevant information from a customer and prepare the loan application, and Rural Bank’s role to consider and decide upon a loan application.[29]
  1. [37]
    From a customer’s perspective, the process in relation to a loan application generally was as follows:
  1. (a)
    the customer would approach Elders and advise what they wanted to apply for;
  1. (b)
    Elders would gather the relevant information, including by telling the customer what information they would need to complete that application;[30]
  1. (c)
    Elders would tell the customer whether the loan application had or had not been approved, and any conditions which may apply;[31] and
  1. (d)
    the customer would, some time later, receive a letter of offer and other paperwork from Rural Bank regarding the loan, the approval of which had already been communicated through the Elders’ representative.[32]
  1. [38]
    This process, as explained by Mr Nelson, is consistent with the process that Mr Gobbert experienced in his earlier dealings with Elders and Rural Bank, as will be evident from the history of the dealings outlined below.

The Plaintiffs’ history with Elders and Rural Bank

Relationship with Elders bank managers

  1. [39]
    Before 2009, the Plaintiffs only had a small seasonal loan with Rural Bank.[33]
  1. [40]
    In around mid-2009, the Plaintiffs re-financed their existing term loan and overdraft facility from Bankwest to Rural Bank.[34]  That re-financing was arranged through Elders, with its employee Mr Donald Bruce Black.[35]
  1. [41]
    At the time of re-financing, Mr Black was the District Banking Manager at the Elders’ Roma office.[36]  He remained in that role until mid-2013.[37]  He was the Plaintiffs’ contact at Elders regarding their finances with Rural Bank.[38]
  1. [42]
    At times during the same period, Mr Gobbert also had some contact with Mr Nelson.[39]
  1. [43]
    After Mr Black left Elders, from mid-2013 until early 2014, Mr Nelson became Mr Gobbert’s only contact at Elders regarding the Plaintiffs’ finances with Rural Bank.[40]
  1. [44]
    From early 2014, Mr Robert Ormsby commenced employment at Elders as the District Banking Manager at the Roma office.[41]  Mr Ormsby became Mr Gobbert’s contact at Elders from that time.[42] 
  1. [45]
    Given the nature and extent of their borrowings, the Plaintiffs were a large and important client of Elders and Rural Bank.[43]  They had sizeable dealings with Rural Bank  from at least 2009 when Mr Gobbert shifted all of the Plaintiffs’ facilities to Rural Bank.[44] 
  1. [46]
    Historically, each of the Plaintiffs’ requests for finance from Rural Bank through Elders, being those made between 2009 and the relevant events of 2014, had been approved.[45]
  1. [47]
    Rural Bank’s previous dealings with the Plaintiffs included applications for finance prior to auction on two previous occasions. Each related to a rural property known as “Balgai”.  Balgai is located about 25 kilometres northeast of one of the Plaintiffs’ existing properties, Davirton.[46]

First application for finance to purchase Balgai

  1. [48]
    In 2010, Balgai came up for auction.[47]  The auction was to occur on 10 September 2010.[48]  The Plaintiffs wanted to purchase Balgai and required finance to do so.[49]  The Plaintiffs were seeking finance of $2.3 million.[50] 
  1. [49]
    On that occasion, around 12 August 2010, Mr Gobbert telephoned Mr Nelson and told him that the partnership wanted to purchase Balgai.[51]  Mr Nelson asked that Mr Gobbert send him information relevant to the application for finance on their behalf.[52]
  1. [50]
    Mr Gobbert provided Mr Nelson with financial information in support of the application.[53]  Mr Gobbert acknowledged that the information he provided to Elders enabled it to prepare a cash flow forecast.[54] 
  1. [51]
    Mr Gobbert conceded that he understood that:
  1. (a)
    a cash flow forecast was a matter that Rural Bank considerd in determining whether the Plaintiffs could service a loan in the future;[55]  and
  1. (b)
    the likelihood that the Plaintiffs would be able to service their loan in the future was an important part of the assessment process for Rural Bank.[56]
  1. [52]
    On 7 September 2010, Mr Nelson sent a draft cash flow forecast to the Plaintiffs with the following query:[57]

“Am I missing some income that is expected this month (or next) that would suggest we do not need to increase your facilities by this much as I am sure I will be asked “what happened to the $1M we just lent them?””

  1. [53]
    It is apparent from this email that Elders did not simply accept without challenge the information provided by the Plaintiffs. Mr Gobbert conceded that Elders would come back and ask questions requiring the Plaintiffs to justify their figures.[58] 
  1. [54]
    The tenor of this email also indicates that Mr Nelson did not have the authority to approve finance.
  1. [55]
    On 8 or 9 September 2010, almost one month after Mr Gobbert expressed interest in obtaining finance, Mr Nelson telephoned Mr Gobbert and told him that the application for finance had been approved subject to conditions.[59]  Mr Nelson then sent Mr Gobbert an email to that effect.[60]  The email states:[61]

“Jason

Just to confirm that approval has issued for total funding of $11.5M as follows:

  • Seasonal Account $2,000,000 with limit to reduce to $900,000 by 31/3/2011.
  • Term Loan $7,300,000 – no change to current arrangements.
  • Term Loan $2,200,000 – with repayments of $825,000 scheduled for 31/5/2011, 31/5/2012 and final repayment of $550,000 due 31/5/2013.

I have attached the Cash Flow Forecast included with submission.  Please let me know if there are any glaring errors that will have a negative impact on this finance proposal / approval.

Other conditions applicable:

  1. Licensed valuation of ‘Balgai’ to be undertaken by panel valuer instructed by Rural Bank Ltd. All aspects of the valuation to be acceptable to Rural Bank Ltd with cost of valuation to be borne by client.
  1. Borrowers undertake and agree to obtain written consent from Rural Bank Ltd prior to (a) incurring and unbudgeted capital expenditure exceeding $50,000 per individual item or a total of $100,000 in any financial year, and / or (b) entering into any new or increased finance commitments exceeding $50,000 per transaction of $100,000 in any financial year.
  1. Financial statements for period ended 30 June 2010 to be provided by 31 December 2010.”

(emphasis added)

  1. [56]
    Mr Gobbert acknowledged that he would have taken, from this email, that it was important to have cash flow forecasts that were as accurate as they could be.[62] 
  1. [57]
    It is also apparent from the email that the second condition imposed a significant limit on how the Plaintiffs could conduct their affairs.
  1. [58]
    Mr Gobbert did not receive a formal letter of offer prior to the auction.[63]  On 10 September 2010, Mr Gobbert attended the auction of Balgai, which was passed in to him.[64]

Second application for finance to purchase Balgai

  1. [59]
    In 2012, Balgai again came up for auction.[65]  The auction was to occur on 12 October 2012.[66] 
  1. [60]
    The Plaintiffs wanted to purchase Balgai and required finance to do so.[67]  Around 6 September 2012, Mr Gobbert telephoned Mr Black and told him that the partnership wanted to purchase Balgai.[68]  On 6 September 2012, Mr Gobbert emailed Mr Black a copy of the brochure for the auction.[69]
  1. [61]
    On 8 September 2012, Mr Gobbert provided Mr Black with financial and other information in support of the application.[70]  That information again included details that would enable Elders to prepare a cash flow forecast for the property that the Plaintiffs sought to acquire.[71]  On 10 September 2012, Mr Black made some further enquiries regarding the financial information from Mr Gobbert and obtained financial information from the Plaintiffs’ accountant.[72]  Later that day, Mr Black provided the Plaintiffs with a cash flow forecast for consideration by the Plaintiffs.[73]
  1. [62]
    On 27 September 2012, about three weeks after Mr Gobbert expressed interest in obtaining finance, Mr Nelson telephoned Mr Gobbert and told him that the application had been approved subject to conditions.[74]  Mr Gobbert did not dispute the record of the conversation, which indicated that the approval conditions had been relayed to him and that he had indicated he was comfortable with them.[75]
  1. [63]
    Following that conversation, Mr Gobbert made enquiries with the vendor and learned that the purchase price may be higher than anticipated.  On 4 October 2012, Mr Gobbert telephoned Mr Nelson and told him that additional finance would be required: an increase of $100 000 was sought.  That same day, Mr Nelson told Mr Gobbert that approval for the additional amount would need to be sought from the Credit Committee, but that the request appeared to have support at a local level.[76]  It is apparent from this conversation that Mr Nelson did not have authority to approve finance and that even a small additional advance required approval by another.
  1. [64]
    The increase in finance was approved two business days later on 8 October 2012.[77]  Mr Gobbert did not receive a formal letter of offer prior to the auction.[78] 
  1. [65]
    Ultimately, Mr Gobbert decided not to purchase Balgai due to regulatory issues.[79]

Consistency in the process for finance applications for Balgai

  1. [66]
    It is apparent from the dealings between the Plaintiffs and Elders, referred to above, that the process for both of the finance applications for Balgai was the same. It involved:
  1. (a)
    detailed cash flow forecast information being initially provided by the Plaintiffs, including the revenue and cost implications of operating Balgai;[80]
  1. (b)
    a cash flow forecast, prepared in the form provided by Rural Bank and based on the information provided by the Plaintiffs, being sent by Elders (Mr Nelson and Mr Black respectively) to the Plaintiffs for clarification and sign off by the Plaintiffs;[81] and
  1. (c)
    finance approval being notified by Mr Nelson by an express statement that there had been approval by Rural Bank, along with communication of the conditions on which the finance was approved. 
  1. [67]
    At one point, Mr Gobbert suggested that, when seeking further finance, he would have provided whatever information he was asked for and that he would not know what information he needed to produce unless asked.[82]  I accept that, had Elders or Rural Bank requested particular information, Mr Gobbert would have produced it.  However, given the process that was followed for obtaining finance on each occasion for the purchase of Balgai, I do not accept that Mr Gobbert would not know the need for information relevant to a cash flow forecast absent a request.  As is noted in paragraph [51] above, Mr Gobbert knew that cash flow forecasts were important in the loan assessment process: his experience with Balgai confirmed as much.[83]

Communications with respect to the Property

  1. [68]
    In about March 2013, Mr Gobbert was informed that the Property would be coming up for sale with a purchase price of about $10.5 million.[84]  The Plaintiffs were interested in purchasing the Property: it immediately adjoined their farm, Davirton.[85]  Mr Gobbert telephoned Mr Black and asked him to see if it were possible for them to get finance to purchase the Property.[86]  That application for finance did not proceed.[87]
  1. [69]
    In about September 2014, the Plaintiffs became aware that the Property was to be put up for sale by auction. The Plaintiffs were again interested in purchasing the Property to expand their business.[88]
  1. [70]
    Mr Gobbert gave evidence that, around 20 September 2014, he telephoned Mr Ormsby and told him that the was interested in purchasing the Property and that he had come across a product known as Latevo multi-peril crop insurance that might be a helpful tool for the Plaintiffs business.[89]  Mr Gobbert says that Mr Ormsby responded by requesting Mr Gobbert send him the Plaintiffs’ financials.[90] 
  1. [71]
    Mr Ormsby’s account of the conversation was that Mr Gobbert discussed crop insurance with him and “flagged” that he would be interested in potentially buying the Property.  On Mr Ormsby’s account, the conversation focussed on the crop insurance and upcoming seminars about it.[91]  During cross examination, Mr Ormsby conceded that it was possible that he asked Mr Gobbert to provide financial material as part of that conversation.[92]
  1. [72]
    On Monday 22 September 2014, Mrs Gobbert emailed a document described as draft 2014 financials to Mr Ormsby.[93] 
  1. [73]
    Mr Ormsby did not respond to the email and Mr Gobbert sent him a text message on 24 September to follow him up. He did not receive a response to his text message.[94]
  1. [74]
    Mr Gobbert’s memory of the conversation is much clearer than Mr Ormsby’s.  I accept that, from Mr Gobbert’s viewpoint, and the view of a reasonable person formed towards the end of September 2014, Mr Gobbert started the process of applying for finance for the Property when he spoke with Mr Ormsby. 
  1. [75]
    Around 6 or 7 October, Mr Gobbert contacted Mr Gee, a finance broker, and asked Mr Gee if he could seek finance for the Plaintiffs for the purchase of the Property.[95]  Mr Gobbert met Mr Gee the following morning and provided financial information for that purpose.[96]
  1. [76]
    The Plaintiffs were seeking $6 million in finance.[97]
  1. [77]
    On 14 October 2014, Mr Gobbert contacted Mr Nelson to “vent his disgust with the way Rob Ormsby had dealt with” the Plaintiffs.[98]  During that discussion with Mr Nelson, Mr Gobbert indicated that the Plaintiffs were interested in purchasing the Property and had engaged a finance broker to seek funding.  He also said he wondered if the crop insurance could be engaged.[99]  Mr Nelson apologised for “dropping the ball” and indicated that he was interested in funding the purchase of the Property and requested that Mr Gobbert provide financial information.[100]
  1. [78]
    Having regard to these events, and the tenor of the conversations, it seems to me that:
  1. (a)
    by 6 October 2014, Mr Gobbert had turned to Mr Gee to get finance;
  1. (b)
    from early October 2014 until the 14 October 2014 conversation with Mr Nelson, Mr Gobbert had no expectation that Elders was developing an application for finance to bid at auction; and
  1. (c)
    Mr Nelson was effectively commencing from a standing start on 14 October 2014.  Mr Gobbert, or a reasonable person in his position, would have appreciated as much given the nature of the requests made by Mr Nelson.[101]
  1. [79]
    Around 11am on 15 October 2014, Mr Gobbert provided Mr Nelson with a copy of draft financial statements to June 2014.[102]  These were the same documents that he provided Mr Ormsby on 22 September 2014.[103] 
  1. [80]
    Also around 11am on 15 October 2014, Mr Gobbert provided inventory summaries from 2009 to 2014 inclusive.[104]  The only inventory that provided information relevant to the Plaintiffs’ current or future cash flow was the inventory for 2014, which stated that the Plaintiffs had “No crop sowen/Dry [sic]”[105] and that they had some $600,000 worth of grain still on hand.[106]
  1. [81]
    A copy of the auction contract for the property was also provided on the morning of 15 October 2014.[107]  It showed that the contract was unconditional.[108]
  1. [82]
    The Plaintiffs did not otherwise provide any information about the current position of the existing business and provided no information about the Property, its value, likely revenue or costs. No detail was provided that would enable Elders to prepare a cash flow forecast.
  1. [83]
    The documentary record shows that Mr Gobbert had not received any cash flow forecast before the auction: Mr Gobbert accepted that he had not.[109]  Mr Gobbert also accepted that a cash flow forecast can require a lot of thought.[110]  Mr Gobbert also understood that the drought conditions that were present at the time[111] would add to the complexity of developing a cash flow forecast for submission to Rural Bank.
  1. [84]
    In the circumstances, I am satisfied that Mr Gobbert understood, or at least a reasonable person in his position would have understood, at the date of the auction, that:
  1. (a)
    finance would not be able to be assessed, much less approved, unless a cash flow forecast had been finalised with his input and assistance;
  2. (b)
    the development of the cash flow forecast for the Property was likely to require considerable work; and
  3. (c)
    that work had not been done and no cash flow forecast had been developed prior to the auction.  
  1. [85]
    On the afternoon of 15 October 2014, Mr Nelson requested further financial information.[112]  On 16 October 2014, the Plaintiffs provided an equipment schedule and handwritten statement of assets and liabilities prepared by Mr Gobbert.[113]  The covering email states, relevantly:

“Regarding Asset and Liability, we have now included it.  Jason has valued the farms at the values they will be on the new valuations ...”

  1. [86]
    During cross examination, Mr Gobbert conceded that he understood that:
  1. (a)
    a loan to value ratio is a ratio between the amount sought to be borrowed and the value of the property being offered as security;[114]
  1. (b)
    a loan to value ratio is one of the parameters that Rural Bank would look at in deciding whether to lend money;[115]
  1. (c)
    every three years the valuation would have to be brought up to date to make sure that the loan to value ratio was reliable;[116]
  1. (d)
    when applying for new finance, up to date valuations would be required;[117] and
  1. (e)
    Rural Bank would not rely on the valuations included in the statement of asset and liabilities for Byra and Davirton, because those values represented a large increase (over 25 per cent) of the values contained in Rural Bank’s 2012 valuations (which were then just two years old).[118]
  1. [87]
    In those circumstances, I am satisfied that Mr Gobbert knew, or at least a reasonable person in his position would have known, that Rural Bank was not in a position to consider the security value of the existing properties on the basis of the statement of assets and liabilities provided for him. It would require new valuations.
  1. [88]
    I am also satisfied, particularly having regard to the evidence of Mr Gobbert with respect to the previous valuations,[119] that Mr Gobbert was a man who had faith in his own judgement as to value and who would be willing to take the risk that his judgement would be vindicated by a later finance approval process.
  1. [89]
    Having regard to the evidence of Mr McDonald, whose testimony I found to be honest, even frank, I am of the view that Mr Gobbert was willing to take a calculated risk and bid at auction without finance in place because the opportunity was too good an opportunity to be allowed to pass – “Ballandool probably had more money spent on ... diesel” than the price bid at the auction.[120]  Mr Gobbert was, as Mr McDonald said, in a particularly positive frame of mind – he was punting on good seasons after two years of drought.[121]  I accept the evidence of Mr McDonald that Mr Gobbert had indicated to him that he was “going to take a swing at Ballandool because if things go the way I think it’s going to go I’ll pay for that place.”[122]
  1. [90]
    The auction was held at the Riverside Centre in Brisbane on 17 October 2014.[123]  Mr Nelson met Mr Gobbert at the Riverside Centre immediately prior to the auction and attended the auction with Mr Gobbert.
  1. [91]
    Mr Gobbert conceded in cross-examination that Mr Nelson had never represented to him that he had any authority to approve finance.[124]  There is also no suggestion by the Plaintiffs that Mr Nelson, or anyone from Elders or Rural Bank, expressly communicated before the auction that Rural Bank had approved finance for the purchase of the Property (with or without conditions).
  1. [92]
    At the auction, Mr Gobbert made a bid for $6.8 million and the Property was knocked down to him.

Did the Defendants engage in conduct?

  1. [93]
    Section 12BA(2) of the Australian Securities and Investment Commission Act 2001 provides that “engages in conduct” can include both doing an act and refraining from doing an act.
  1. [94]
    The Plaintiffs allege that there was a representation to Mr Gobbert that finance to purchase the Property had been, or would be, approved. The Plaintiffs submit that the representation is multifaceted and comprises the following conduct:[125]
  1. (a)
    a statement by Mr Nelson to Mr Gee on 15 October 2014 to the effect that Mr Nelson would be able to get the Plaintiffs the money for the auction, which statement was made in circumstances where Mr Nelson knew that Mr Gee would pass that information on to Mr Gobbert;
  1. (b)
    a statement by Mr Nelson on 16 October 2014 that he had just come back from upstairs, following which Mr Nelson offered to attend the auction with Mr Gobbert;
  1. (c)
    Mr Nelson’s conduct at the auction, including:
  1. (i)
    the fact that Mr Nelson moved to sit next to Mr Gobbert during a pause in the bidding; and
  1. (ii)
    Mr Nelson’s failure to warn that finance had not been approved or, alternatively, that there was a material risk that finance would not be approved; and
  1. (d)
    a statement by Mr Nelson, during a pause in the bidding, that “It’ll be a bit of a stretch”.
  1. [95]
    The Plaintiffs submit that in order for them to succeed, the court must be satisfied, as a minimum, that the “stretch” statement was made.[126]
  1. [96]
    There is a factual dispute between the parties about whether the alleged conduct occurred.

The conversation between Mr Gee and Mr Nelson on 15 October 2014

  1. [97]
    Mr Gee was a finance broker. He first spoke with Mr Gobbert in about August 2014 in respect of re-financing a bulldozer owned by Mr Gobbert.[127]  According to Mr Gee, the two first spoke about the Property on 5 October 2014.[128]
  1. [98]
    From that time, Mr Gee was working to obtain finance for the Property. The only offer of finance he was able to obtain was from the Commonwealth Bank. It offered, in principle, to lend $3 million for the purchase of the Property as part of a wider effort to refinance the whole of the Plaintiffs’ facilities.[129]
  1. [99]
    The important evidence from Mr Gee was with respect to a conversation with Mr Nelson on 15 October 2014.  According to Mr Gee, Mr Nelson rang him while he was driving.  The conversation was conducted on “hands-free”.  Mr Gee’s wife, Mrs Nicole Gee, was in the car and heard the conversation.[130] 
  1. [100]
    Mr Gee gave evidence about his conversation with Mr Nelson on 15 October 2014 as follows:[131]

“MR PYLE: What, if anything, did Mr Nelson say to you in that conversation?---We discussed the – the Gobbert file or application. I – I advised him that – you know, that I had an application for the refinance of Elders and I was looking to get the funding for him – Jason for the purchase of Ballandool.

And what did Mr Nelson say to you, if anything?---Well, you know, he – he asked me that if I could give him the opportunity and to give him a crack at the – at the application because the Gobberts were a large client of the bank’s and that he’d get a kick in the bum if he – if he lost them as a client and, you know, that he’d be able to get them the money for the purchase and I didn’t need to worry about it.

Thank you. Was anything else discussed in that conversation?---Yeah. Well, I – you know, like, I – I – I told him that I’d put in a fair bit of work with regards to the file – to the application. You know, he – and he said to me that once it settled that he – that Elders as a bank didn’t deal with brokers directly but that he would look at some sort of compensation for the work that I’d put in.”

(emphasis added)

  1. [101]
    Mrs Gee also gave evidence about the conversation between Mr Gee and Mr Nelson.  Her evidence was as follows:[132]

“Starting from the beginning, can you describe what you remember being said in that conversation?---Okay. Paul spoke to Allan saying that he was aware that Allan was working with the Gobberts with a view to refinancing their current lending with Elders and looking to obtain further funding for a property that they were hoping to purchase at auction. He said that the Gobbert Brothers were important customers to himself and to Elders Bank. He said that he was confident that he would be able to help them with their finances and he would appreciate if Allan backed off and let him deal with it; he had it in hand.

And what, if anything, did Mr Gee say?---He questioned Paul about how confident he was. He said that he – Allan said that he had spent a considerable amount of time on the file to date and said that if – if Paul was confident that he could get them the finance and if it was in the best interests of the client, he would back off and let – and let them remain at Elders.

And what, if anything, did Mr Nelson say?---He appreciated that Allan had spent a lot of time on the file and he said when everything’s settled that he would be willing to compensate Allan for his time.”

(emphasis added)

  1. [102]
    The Plaintiffs rely on these conversations as part of the context that demonstrates that a reasonable person in Mr Gobbert’s position would have relied on the “stretch” statement as meaning or having the effect that finance had been, or would be, approved.[133] 
  1. [103]
    When cross examined about the conversation with Mr Gee, Mr Nelson:
  1. (a)
    had no recollection of asking Mr Gee to give him the opportunity to finance the Property for the Plaintiffs;[134]
  1. (b)
    denied that he had told Mr Gee that he would get a “kick in the bum” if he lost the Plaintiffs as clients;[135]
  1. (c)
    denied that he told Mr Gee that he would be able to get the Plaintiffs the money for the purchase of the Property;[136] and
  1. (d)
    admitted that Mr Gee had told him that he had “put a fair amount of work into the application”, but denied that he offered to give Mr Gee compensation for his work.[137]
  1. [104]
    There was much dispute between the parties about whether the evidence of Mr Gee ought be accepted. Elders and Rural Bank submit that Mr Gee’s evidence should be rejected because:
  1. (a)
    it makes no sense that Mr Nelson would ask for the opportunity to get finance for the Plaintiffs, given Mr Gobbert had already said he could;[138]
  1. (b)
    Mr Nelson had no reason to make the statements, given he would not receive any direct benefit upon the retention of the Plaintiffs’ business;[139]
  1. (c)
    in terms of the apparent assertion that Mr Nelson indicated that he would be able to obtain finance for the Plaintiffs:
  1. (i)
    there is material inconsistency between Mr Gee and Mrs Gee’s versions in that Mrs Gee does not say what Mr Gee said about his level of confidence and Mr Gee continued to pursue finance with the Commonwealth Bank of Australia despite volunteering to “back off” if it was in the Plaintiffs’ interests; and
  1. (ii)
    it is improbable that Mr Nelson would have expressed confidence given he had only known about the potential transaction for a few days;[140]
  1. (d)
    Mr Nelson would be unlikely to suggest that another broker should “back off” when he expected the conversation would be repeated to Mr Gobbert;[141]
  1. (e)
    the suggestion that Mr Nelson would offer to pay compensation to Mr Gee is inherently improbable for regulatory reasons (as the payment would have to be disclosed)[142] and practical reasons (as the Bank did not pay commissions to finance brokers)[143];[144]
  1. (f)
    Mr Gee’s account of the conversation seems exaggerated, particularly his comment that Mr Nelson “sounded desperate”.[145]  Mrs Gee did not say that Mr Nelson sounded desperate;[146] and
  1. (g)
    Mrs Gee’s corroboration should be regarded with caution, it being the testimony of one spouse eager to support the other[147] in relation to a transaction that was one of the biggest that Mr Gee had ever had.[148]
  1. [105]
    I reject Mr Nelson’s account of this conversation and prefer the account given by Mrs Gee and, to the extent it accords with that of Mr Gee, the evidence of Mr Gee. My reasons for this are:
  1. (a)
    Mrs Gee impressed me as a truthful and reliable witness whose recollection, unlike that of others, was not tainted by a perception of the consequence of the conversation for her business dealings;
  1. (b)
    Mr Gee struck me as an honest witness, whose recollection was reliable in terms of the general topics discussed in the conversation.  However, I consider that his recollection of the statements made by Mr Nelson was coloured by the potential threat that Mr Nelson represented to his business relationship with the Plaintiffs; and
  1. (c)
    I accept that there was no direct benefit to Mr Nelson in the retention of the Plaintiffs’ business.[149]  However, I do not accept Mr Nelson’s account of the conversation with Mr Gee as:
  1. (i)
    during examination in chief:
  1. (A)
    when asked about whether he remembered having a conversation with Mr Gee, he answered “vaguely”;[150]
  1. (B)
    when asked whether he remembered what was said in that conversation, he answered “Not particularly, no”;[151] and
  1. (ii)
    my impression of Mr Nelson was that he tended to answer questions in ways that he thought would assist him, rather than providing answers that impressed me as based on his true recollection of the events.[152]  When pressed for clarity on evasive answers, his answers were inconsistent with earlier testimony.[153]
  1. [106]
    For those reasons, I am satisfied that, in the conversation between Mr Gee and Mr Nelson on 15 November 2014, Mr Nelson indicated that the Plaintiffs were important customers to Elders and that he was confident that he would be able to help them with their finances. 
  1. [107]
    The Plaintiffs’ case is that Mr Gee relayed Mr Nelson’s eagerness to help obtain finance to Mr Gobbert.
  1. [108]
    Mr Gee gave evidence of his conversations with Mr Gobbert on 15 or 16 October 2014 about the Property as follows:[154]

“Thank you. Now, you’ve given evidence of your conversation that you had with Mr Nelson. Following that conversation, did you have any conversation with Mr Gobbert – Jason Gobbert?---Yes. I – after I’d spoken to – to Paul Nelson I’d rung Jason Gobbert, but I never – and I left a message for him to call me and I spoke to him again the next day – the next morning. You know, I said to him that I’d spoken to Paul Nelson; that he was, you know, confident that he could get him the money; that he was, you know, pretty much asking me to butt out of the – out of the deal. I told him that he was – you know, looked like he was his best mate in the – in the transaction and that – you know, that – that – you know, happy days.

And did you say anything further to Mr Gobbert?---Only – only that – only that I’ll be – you know, that – that Paul had – had, you know, sounded desperate for me to butt out and – and that – that he was, you know – and that – that he would be able to get him finance for the purchase of Ballandool.”

(emphasis added)

  1. [109]
    This evidence is, in material respects, consistent with the evidence of Mr Gobbert, who described a conversation with Mr Gee on 15 October 2014 in the following terms:[155]

“Now in that week leading up to the auction – the auction was on Friday the 17th – did you have any discussions with Mr Gee?‑‑‑On the afternoon of the 15th, fairly late, Mr Gee rang me and said that he’d just had a phone conversation with our new best buddy, Paul Nelson.  And in that phone conversation Paul had said to him that we were very good clients, we were highly LBR.  He would get his arse kicked if he lost us as clients and he would find the money.  And he also said that if it settled, he’d give Alan a kick.

Now, what, if anything, did that statement by Mr Gee lead you to think?‑‑‑That he was pretty determined to seek funding for us.

Who is “he”?‑‑‑Paul Nelson.”

(emphasis added)

  1. [110]
    I am satisfied that, on 15 October 2014, Mr Gee told Mr Gobbert that Mr Nelson was determined to obtain finance for the Plaintiffs.

Statement by Mr Nelson to Mr Gobbert on 16 October 2014

  1. [111]
    The Plaintiffs rely on a statement by Mr Nelson on 16 October 2014 that he had just come back from upstairs, following which Mr Nelson offered to attend the auction with Mr Gobbert. 
  1. [112]
    Early in the morning on 16 October 2014, Mr Gobbert emailed Mr Nelson financial information regarding the Plaintiffs’ assets and liabilities.[156]  Later that day, Mr Gobbert had a telephone conversation with Mr Gee that led him to call Mr Nelson.  Mr Gobbert’s evidence about the telephone conversation with Mr Gee was as follows:[157]

“Thank you.  Did you have any further conversations with Mr Gee prior to the auction?‑‑‑Yes, I did, the next day in the afternoon, about 4 o’clock.

When you say the next day, that’s the day before the auction, do you mean the 16th of October?‑‑‑Yes, that’s right.  The 16th of October.

Did you telephone Mr Gee?‑‑‑Yes, I did.  And I asked Mr Gee how he was going with the funding for Ballandool.

And what did he say – what, if anything, did he say to you in response to your question?‑‑‑He said to me that Bruce McConnell had contacted him and he could only come with 3 million for the purchase of Ballandool.

Did he say anything else to you?‑‑‑Yes, he did.  He said ‑ ‑ ‑

What was that?‑‑‑ ‑ ‑ ‑ he said that – I said, “Well, how did you go with the financing of the equipment?”  He said he had one piece of equipment signed off on, which should settle soon.  He also said – I said, “Well, it’s really much good to me what you’ve done.”  And he said, “Well why don’t you give your new best mate a call.”  And I did after I ended with Alan.

Well, just to be certain, you gave your new best mate a call?‑‑‑Which was Paul Nelson.

Okay.  And do you remember about what time that conversation occurred?‑‑‑It was after 4.  Could have been 4.30, something like that, 4.15.”

  1. [113]
    It is apparent from Mr Gobbert’s conduct in asking Mr Gee about finance that, at this point in time, Mr Gobbert was not of the view that he had sufficient finance in place.
  1. [114]
    Mr Gobbert then phoned Mr Nelson. His evidence about that phone call was as follows:[158]

“And what did you say to Mr Nelson?‑‑‑I said to Mr Nelson – I gave him a ring, I said, “How are we going?”  You know, “You’ve looked at our numbers.”  He said, “I’ve just come back from upstairs.  Would you like me to come to the auction with you?”  I said, “I haven’t got the deposit.”  He said not to worry about that.  He said, “It will be good to put a name – a face to the name.”   I said, “Will you be coming with your Elders shirt on?”  He gave a chuckle.

Now ‑ ‑ ‑?‑‑‑This ‑ ‑ ‑

Please continue?‑‑‑ ‑ ‑ ‑ this bolstered my opinion that finance was approved, given the conversation I had with Alan Gee the day before.

And why did it bolster your opinion that finance was approved?‑‑‑Because he said he would come to the auction with me.

Was there anything else that he said that bolstered your opinion?‑‑‑Apart from – apart from – he said he would be wearing his Elders shirt.”

  1. [115]
    Mr Nelson did not give evidence in chief about the 16 October 2014 conversation, except to say that he did not particularly recall talking to Mr Gobbert the day before the auction.[159]  During cross examination, Mr Nelson said he had no recollection of any of the matters stated by Mr Gobbert except that he did offer to come to the auction to meet them.  Mr Nelson stated that he did not make any note of the conversation because nothing relevant was discussed as far as he was concerned.[160]
  1. [116]
    On the basis of Mr Gobbert’s evidence referred to in paragraph [114] above, the Plaintiffs submit that:[161]
  1. (a)
    Mr Gobbert asked “How are we going? … You’ve looked at our numbers”;
  1. (b)
    Mr Nelson said he had “just come back from upstairs”, which a reasonable person would understand means conferring with the chain of command and which Mr Gobbert understood the same way;[162]
  1. (c)
    Mr Nelson offered to attend the auction with Mr Gobbert and, when asked if he would be wearing his Elders shirt, laughed (which a reasonable person would understand to mean that finance had or would be approved, and which Mr Gobbert understood the same way);[163]
  1. (d)
    Mr Gobbert said “I haven’t got the deposit” and Mr Nelson said “not to worry about that”; and
  1. (e)
    Mr Nelson said “It will be good to put a face to the name”.
  1. [117]
    There is consensus between the parties that Mr Nelson indicated that he would come to the auction and that it would be good to meet the Plaintiffs. Mr Gobbert’s evidence about that conversation is otherwise in dispute.

The statement “You’ve looked at our numbers”

  1. [118]
    Rural Bank submits that the court should reject the submission that there is credible evidence that Mr Gobbert asked “How are we going? … You’ve looked at our numbers”, because:[164]
  1. (a)
    it is not pleaded and the divergence from the pleading is a material consideration on the credibility of this account by Mr Gobbert, in circumstances where:
  1. (i)
    there are only three key conversations pleaded, and one would assume that the important points of the conversation would have been pleaded as the others were;
  1. (ii)
    Mr Gobbert admitted he had read the Amended Statement of Claim before it was filed and understood it had to be accurate;[165]
  1. (iii)
    the primary purpose of the Amended Statement of Claim was to amend paragraph 22 to plead this conversation; and
  1. (b)
    Mr Gobbert’s evidence in chief is itself equivocal.  Rural Bank submits that the tenor of Mr Gobbert’s evidence “you know, you’ve looked at our numbers” was explaining the interpretation Mr Gobbert projected on the question he actually asked Mr Nelson, namely “How are we going?”.  
  1. [119]
    My impression of Mr Gobbert’s evidence in this regard was that, when he said “You know, “You’ve looked at our numbers.””, he was explaining his interpretation of the question he actually asked Mr Nelson.  I did not understand him to be recounting something that he said to Mr Nelson.  This would explain why the matter is not pleaded.[166]

The statement that Mr Nelson had “just been upstairs”

  1. [120]
    Rural Bank also submits that I should reject as unreliable the evidence that Mr Nelson said he’d “just been upstairs” because, while it was pleaded, it does not appear in a letter that Mr Gobbert sent to Mr Brown of Rural Bank on 21 November 2014.[167]  The letter was one that was calculated to persuade Mr Brown to approve finance.
  1. [121]
    I am not persuaded that Mr Gobbert’s testimony was unreliable in this respect. I accept that the statement was made.

The statements about the shirt

  1. [122]
    Rural Bank submits that it might be that the discussion about the shirt and the chuckle occurred as suggested by Mr Gobbert, but that those matters are immaterial.[168]  I agree.

The statements about the deposit

  1. [123]
    Mr Gobbert gave evidence about discussions regarding the deposit with Mr Nelson on 14 October, 16 October and 17 October 2014. In particular, Mr Gobbert gave evidence that:
  1. (a)
    in the 14 October 2014 telephone conversation, Mr Nelson offered to arrange the deposit for him and Mr Gobbert informed Mr Nelson how he intended to fund the deposit;[169]
  1. (b)
    in the conversation on 16 October 2014, Mr Gobbert told Mr Nelson that he did not have the deposit; and
  1. (c)
    in a conversation on the mobile phone while driving to the auction in Brisbane on 17 October 2014, Mr Gobbert told Mr Nelson that no funding had shown up to put towards the deposit.[170]
  1. [124]
    Rural Bank submits that Mr Gobbert’s evidence regarding these discussions about the deposit, and his evidence regarding the deposit generally, is both inconsistent and damaging to the reliability of his account.  It also submits that Mr Gobbert’s evidence that he discussed the deposit with Mr Nelson before the auction should be rejected and that the court should find that there was no mention of the deposit before 17 October 2014, at which time Mr Nelson sought a temporary limit increase on behalf of the Plaintiffs.  Rural Bank relies on four reasons in this regard.[171]
  1. [125]
    First, Rural Bank submits that Mr Gobbert’s evidence about the deposit is inconsistent with his own case as pleaded. He says nothing about raising the deposit in the 16 October conversation in his pleading. It is something he said for the first time in his examination in this trial. Rural Bank submits that the inconsistency between Mr Gobbert’s evidence and his pleading with respect to the deposit is material for the reasons set out in paragraph [118](a) above.  Given those circumstances, the evidence should be carefully analysed, rather than accepted at face value.
  1. [126]
    Second, Rural Bank submits that the evidence should be rejected because the reference to a deposit is not recorded in the 14 October diary note prepared by Mr Nelson.[172]  It is submitted that it is the type of matter that Mr Nelson would have recorded in writing (as it was by Mr Nelson in the temporary limit application on the afternoon after the auction,[173] when he says he was given this information).  I do not accept this submission.  Mr Gobbert’s evidence was not that he wanted Mr Nelson to arrange the deposit, rather that he told Mr Nelson about his arrangements.  In those circumstances, I do not regard the absence of a note about the deposit as a persuasive basis to reject Mr Gobbert’s evidence.
  1. [127]
    Third, Mr Gobbert gave evidence that, around 6 or 7 October 2014, he asked Mr Gee to refinance two pieces of equipment to fund the deposit for the Property.[174]  It is evident that Mr Gobbert knew, at that time, what machinery was to be refinanced for that purpose.  Rural Bank submits that, absent any note of these particulars by Mr Nelson prior to the afternoon of 17 October 2014, it is incredible to suggest (as Mr Gobbert did) that these matters were communicated to Mr Nelson on a number of occasions before the auction.[175]  I also do not accept this submission.  Again, given there is no suggestion that Mr Nelson had been requested to arrange the deposit at this stage, I do not regard the absence of a note about the deposit as a persuasive basis to reject Mr Gobbert’s evidence.
  1. [128]
    Fourth, Mr Gobbert was putting in place arrangements to meet the deposit ten days before the auction and was pressing Mr Gee to complete arrangements for finance for the deposit prior to the auction.[176]  Rural Bank submits that this is consistent only with Mr Gobbert putting in place arrangements to meet the deposit so that if he bid at the auction, he could finance the deposit cheque, even if full finance was not in place.  It is directly inconsistent with the evidence that, whatever he told Mr Alexander Dean Gobbert and Mrs Gobbert, he was not planning to go to the auction until the evening before.  This submission has considerable force and I accept it.
  1. [129]
    In the circumstances:
  1. (a)
    I am not persuaded that there was no mention of the deposit before the afternoon of 17 October when Mr Nelson sought the temporary limit; but
  1. (b)
    I am persuaded that Mr Gobbert’s conduct, in relation to obtaining separate finance for the deposit, is consistent with someone who was keeping all options open for the auction, including going to the auction in the hope that the property would be passed in so Mr Gobbert could negotiate a finance contract after the auction.  Mr Gobbert admitted that he told Mr Nelson as much in their conversation on 14 October 2014.[177]

Events at the auction

The meeting at the coffee shop before the auction

  1. [130]
    The Plaintiffs allege that Mr Nelson failed to warn Mr Gobbert that finance had not been approved or that there was a real risk that it might not be approved.[178]
  1. [131]
    Elders and Rural Bank pleaded that Mr Nelson warned Mr Gobbert that finance had not been approved at a meeting in the coffee shop on the morning of 17 October 2014.[179]
  1. [132]
    There is no controversy that Mr Gobbert and Mr Nelson met at the coffee shop on the ground floor of the Riverside Centre around 10am on the day of the auction.
  1. [133]
    In relation to that meeting, Mr Gobbert gave evidence as follows:[180]

“And about what time did you arrive at the Riverside Centre?---I’m thinking somewhere just before 10.

And in whose company did you arrive?---As we were coming to the front of the building, trying to find the door in, we ran into Murray Sweedman, the manager of Ballandool.

You say “we”. Who’s we?---Karen, Dean and I.

And was anyone else with Mr Sweedman?---His son Todd.

And what did you do after that?---We proceeded to enter the building and go for a coffee in the lounge.

Did any other people join the group?---Yeah. Shortly after that, Jeff McDonald joined the group. And somewhere in there I gave Paul Nelson a ring, to just tell him we were there.

And did Mr Nelson join the group?---Yes, he did.

And did you talk to him at the coffee shop?---Yes. Yes. We had some idle chitchat. And - - -

Yes?---Yep.

And did Mr Nelson say to you that there was no finance approval in place for the purchase?---No, he did not.

…

About what time did you leave the coffee shop?---I’m thinking probably somewhere just a bit after 10 – 10 – 10.15, something like that.”

  1. [134]
    Mr Alexander Dean Gobbert gave evidence that:[181]

“And do you remember about what time you arrived in Brisbane?---Around 10 am.

And what did you do when you got to the place where the auction was to be held?---We went into the foyer and went to the coffee shop and had coffee.

Did you know of anybody who was at the coffee shop when you arrived?---We met with Murray Sweedman, Todd Sweedman and Jeffrey McDonald.

And did anyone else join your group at the coffee shop?---Paul Nelson.

And did you speak with Mr Nelson?---Just pleasantries, “Hello. How are you going? Nice day”.

And did you observe Mr Nelson – actually, I withdraw that. Now, you were at the coffee shop. There’s a group of you. Did you proceed to the auction?---Yes.”

  1. [135]
    Mrs Gobbert gave evidence that:[182]

“And do you remember about the time you arrived at the location of the auction?---It was about 8.30/9 o’clock.

And what did you do when you got there?---We parked in the building, and we went upstairs to the ground floor and had a coffee in the coffee shop.

Did you know anybody who was in the coffee shop when you arrived?---Not when we arrived, no.

Did anybody else join who you knew join the group while you were there?---Yes.

In the order in which they joined the group, could you tell that to the court, please, explain it to the court?---The first person to join the group was Murray Sweedman and his son, Todd, and then Geoff McDonald. And then Paul Nelson joined us as well.

And did you talk to Mr Nelson?---Yes, I did.

And where were you standing in relation to Mr Nelson?---I was standing beside Mr Nelson.

And where was Jason standing in relation to Mr Nelson?---He was standing beside me.

So am I correct in saying that’s one away from Mr Nelson?---That’s correct.

Thank you. And in the position you were in were you able to hear the conversations that they had?---Yes.

And did they have any conversations?---Just general chit-chat.

And during that time did they have any discussions regarding finance?---No.

Or whether or not it would be provided?---No.

And how long were you at the coffee shop for?---Half an hour/three-30 quarters of an hour.

And where did you go when you left the coffee shop?---We went up to the auction room.”

  1. [136]
    The evidence of Mr McDonald was:[183]

“And what time did you arrive at the centre?---Late – mid to late morning.

Did you meet anyone at the auction?---Yes.

Who did you meet first?---Murray Sweedman.

Where did you meet him?---At the cafeteria in the - - -

Where is the cafeteria?---On the ground floor of the building the auction was held at.

Okay. Where was Mr Sweedman when you met him?---Standing at the – a table at the cafeteria.

And did you meet anyone else at the auction?---Yes.

Who else did you meet?---The Gobbert family. Jason, Dean, Karen.

Where were they?---On the far left-hand corner – on the northern corner of the building.

And when you say the northern corner of the building, what floor?---On the ground floor.

Okay. And how long were you with the Gobberts for?---Possibly 20 minutes or so.

Was there anyone else that you met?---Yes. Paul Nelson.

Had you met Mr Nelson before?---No.

Were you introduced to Mr Nelson?---Yes.

What did you do while you were with the Gobberts and Mr Nelson?---We had a cup of tea. I spoke with Dean briefly and Murray. That all happened over the period of having a cup of tea. Then we – we left the cafeteria and went off to the auction.

Okay. While you were downstairs, did you see who Mr Nelson was talking to?---Talking to Jason Gobbert.

Could you hear what they were saying?---No.

And you said you went upstairs?---Yes.

How did you get upstairs?---In the elevator lift.

Who were you in the lift with?---The Gobberts.”

  1. [137]
    During cross examination, Mr McDonald also gave the following evidence:[184]

“Were they away from the group or were they still with the group when that - - -?---No. Part of the group, very – what have you. “How do you do?” No – no – no hidden business or anything.

…

- - - and you don’t know what they were saying to each other?---More – more so meet and greet than talking, not as in discussing business and talking. I didn’t really – you know, I can’t really, you know, say that they were talking business and, you know, talking quietly and that sort of – they – they weren’t – they were not doing that. They were – they were talking. What they were talking about, whether he was talking about, “How much should I go to?”, or, “Do you want sugar in your coffee?”, I do not know.”

  1. [138]
    The differences between the evidence of Mr Jason Gobbert, Mr Alexander Dean Gobbert, Mrs Gobbert and Mr McDonald in this respect are small. Mr Jason Gobbert, for example, says they met Mr Sweedman and his son outside, and met Mr McDonald inside.  Mr Alexander Dean Gobbert and Mrs Gobbert say they met Mr Sweedman, his son and Mr McDonald inside.  Mr McDonald also says that he was already with Mr Sweedman when he met up with the Gobberts.  The timings given by each witness are also slightly different.
  1. [139]
    However, their evidence is consistent in all relevant respects. Mr Nelson arrived last and they left as a group (such that they were never alone). The type of talk at the coffee shop was “idle chitchat” (Mr Jason Gobbert), “pleasantries” (Mr Alexander Dean Gobbert), “general chitchat” (Mrs Gobbert), and, although it is a little unclear, “more so meet and greet than talking” (Mr McDonald).
  1. [140]
    Mr Nelson, on the other hand, gave evidence that he believed he had discussions with the Gobberts in the coffee shop, but he doesn’t particularly recall.[185]  Mr Nelson also gave evidence that he would not have discussed a private matter like finance approval (or lack thereof) in a social gathering.[186]  He accepted that the meeting at the coffee shop prior to the auction was social in nature.[187] 
  1. [141]
    Mr Nelson also gave evidence as follows:

“And you provided no warning at that time, did you, because it was an inappropriate place to do so?‑‑‑I’m not saying that we did it in front of the other people.  Could’ve moved aside, from memory, to have that conversation.

Where did you move to?‑‑‑What I considered to be a reasonable distance away from the other parties.

You’re just making this up.  You can’t remember that?‑‑‑I am happy that that is my recollection of events.

Can you look at volume 3, tab 88, please?‑‑‑Yes.

HER HONOUR:   Sorry.  Can I just clarify.  You said you’re happy that that’s your recollection.  Is it your recollection or not?  Because in the previous answer you said, “We could have moved aside,” and then, “I’m happy that that’s my recollection,” doesn’t leave me certain as to whether you’re saying it is your recollection or it’s not?‑‑‑Well, my recollection is that we did move aside.”

  1. [142]
    Mr Nelson’s position that he gave a warning is consistent with his file note of 18 November 2014, which states:[188]

“An email with letter attached was today received from Michael Cowley (Fox and Thomas Lawyers) in relation to the above client.

Letter makes comments on various points and I comment as follows:

…

  1. Met with clients in downstairs foyer of building where auction was being held (Level 26, 111 Eagle Street Brisbane) on 17/10/2014.  At this time the client was reminded that no finance approval was in place.  Indication was that they were hoping for property to be passed in and be able to negotiate with vendor after the auction.”
  1. [143]
    Even though the file note accords with Mr Nelson’s oral testimony, I am not persuaded that Mr Nelson gave a warning. His file note was made several weeks after the meeting. I do not regard it as a contemporaneous written record.[189]  Further, as I have observed at paragraph [105](c)(ii) above, my impression of Mr Nelson was that he tended to answer questions in ways that he thought would assist him, rather than providing answers that impressed me as based on his true recollection of the events.
  1. [144]
    I am satisfied that no warning was given at the coffee shop.

The statement at the auction

  1. [145]
    There is no serious dispute between the parties that:
  1. (a)
    the people who had met at the coffee shop went from the coffee shop to the lifts in the Riverside Centre and up to the auction room, which was set out with an aisle down the middle with chairs on either side;[190]
  1. (b)
    initially, the seating arrangement was (working from left to right), Mr Nelson, Mrs Gobbert, Mr Alexander Dean Gobbert, Mr Jason Gobbert and Mr McDonald;[191]
  1. (c)
    just before the bidding on the Property reached $6.75 million, the bidding had been going up in increments of $250 000;[192]
  1. (d)
    when the bidding on the Property reached $6.75 million, there was a break in the bidding;[193]
  1. (e)
    during the break in the bidding, Mr Jason Gobbert asked Mr Alexander Dean Gobbert to switch seats with Mr Nelson, which he did;[194]
  1. (f)
    Mr Nelson and Mr Gobbert spoke at that time;[195] and
  1. (g)
    Mr Gobbert made his bid of $6.8 million after that.[196]
  1. [146]
    With respect to the period during the break in the bidding, Mr Gobbert gave evidence as follows:[197]

During the break, did you talk to anyone?---During the break, I asked Dean if he could move – swap places with Paul Nelson, so I could talk to him.

Why did you want to speak to Paul Nelson?---Because I wanted to see if it would be okay to bid at these levels.

And what did you – did you say anything to Mr Nelson?---Yes, I did.

What did you say to him?---I said, “What do you think, Paul?”

And what, if anything, did he say in reply?---He said, “It will be a bit of a stretch.”

  1. [147]
    Mr Alexander Dean Gobbert, Mrs Gobbert and Mr McDonald[198] each gave evidence corroborating that Mr Nelson switched places with Dean (and sat immediately next to Mr Jason Gobbert)[199] and that they spoke in the pause in the auction, although none were able to say what was said.[200]
  1. [148]
    Mr Nelson, on the other hand, gave evidence that:
  1. (a)
    from memory, he was sitting “on the right-hand side of Karen, and Dean was on the other side”, with a couple of empty seats between them and Mr Jason Gobbert[201] (but later he gave evidence that he had no recollection what order they sat in, although it was possible they sat in the order given by the other witnesses);[202]
  1. (b)
    he had no recollection of moving to sit beside Mr Jason Gobbert;[203]
  1. (c)
    he had no recollection of Mr Jason Gobbert saying to him, “what do you think” (although he could have done);[204] and
  1. (d)
    he had no recollection of saying to Mr Jason Gobbert, “it will be a bit of a stretch”.[205]
  1. [149]
    Rural Bank submits that the court should reject Mr Gobbert’s evidence that he asked Mr Nelson “what do you think?” and Mr Nelson said “it’ll be a bit of a stretch” or anything similar, for five reasons. 
  1. [150]
    First, Mr Gobbert’s evidence is that, at the critical moment, he assumed finance had been approved (not that it would be approved).[206]  Mr Gobbert’s assumption that finance had been approved makes his evidence about the discussion at the auction untenable because:
  1. (a)
    Mr Nelson’s statement that it will be a bit of a stretch is directly inconsistent with the assumption that finance had been approved.  In that case, Mr Gobbert would surely have said: “why should it be? You’ve already indicated finance has been approved.”  There was no such statement; and
  1. (b)
    Mr Nelson’s statement looks to the future: it plainly communicates that finance is yet to be approved.  That is inconsistent with the assumption that finance had been approved.
  1. [151]
    This submission assumes that I accept the evidence of Mr Gobbert that he believed, after his conversation with Mr Nelson on 16 October 2014, that finance had been approved. For the reasons outlined in paragraphs [89], [106] - [110], [112], [113], [129], [156], [160] - [164] and [173], I do not accept Mr Gobbert’s evidence in that regard. 
  1. [152]
    Second, Rural Bank submits there is the damaging content of the 21 November 2014 letter[207] sent to Mr Brown. 
  1. [153]
    Mr Gobbert conceded in cross examination that:[208]
  1. (a)
    he knew Mr Brown was the boss of Rural Bank in Queensland, Northern Territory and New South Wales; and
  1. (b)
    the purpose of the letter sent to Mr Brown was to persuade him to approve finance for the Property.
  1. [154]
    The letter relevantly provides:[209]

“On or about the 13th of October, I rang Paul Nelson to voice my discuss [sic] with the way Rob had handled me. He said Rob was on holidays that is why I had not herd [sic] from him. Paul said he would need some new numbers. Over the next few days, we sent him over our financials/tax returns and so on. I also had told him I had engaged a broker for funding. On Thursday I had a conversion [sic] with the broker he said CBA could probably come up with $5mil for me, for the property purchase.

The auction was in Brisbane the next day, so I rang Paul Nelson, to ask what did he think after looking over our numbers. He said would you like me to come to the auction with you. I was very relieved to have that sort of support. We met with Paul at about 9.45am down stairs from the auction room. He sat with me at the auction, where I bided [sic] on "ballandool" and it was knocked down to me for $6.8mil, my wife and brother were also at the auction. Paul said it would be a tough sell but he would do his best.”

  1. [155]
    Rural Bank submits that it is what is omitted from the letter that is most significant. The letter:
  1. (a)
    does not say that Mr Gobbert believed that finance had been approved, just that he believed he had “that sort of support”;
  1. (b)
    says nothing about any statement by Mr Nelson at the auction relied upon by Mr Gobbert;
  1. (c)
    does not mention “it’ll be a bit of a stretch”; and
  1. (d)
    mentions only one statement from Mr Nelson, namely “it would be a tough sell but he would do his best”.
  1. [156]
    Mr Gobbert sought to explain away the last point in his evidence in chief as being a reference to what was said at a meeting on 20 October 2010 and that it was a “mistake to put it where I did”.[210]  I do not accept the explanation.  Having regard to the balance of Mr Gobbert’s testimony, I consider it improbable that he had formed the view that finance had been approved.  It is my impression that Mr Gobbert’s recollection in this regard is tainted by wishful thinking.  It is more probable that the “stretch” statement was made and on the basis of that statement, Mr Gobbert actually formed the view that Mr Nelson was indicating that “it would be a tough sell but he would do his best”. 
  1. [157]
    Third, Rural Bank submits that the Gobberts did not complain at their meeting with Mr Nelson on 20 October 2014 that Rural Bank was reneging on a finance approval.
  1. [158]
    On 20 October 2014, Mr Nelson met with Mr and Mrs Gobbert at their house. At that meeting, they discussed their financial information, including cash flow projections and details of the Plaintiffs’ business plans for the Property.[211]  During the meeting, Mr Nelson received an email from Mr Brown.  Having read the email, Mr Nelson informed Mr and Mrs Gobbert that they needed to see other financiers and that he would do his best to get them finance but it would be a tough sell.[212] 
  1. [159]
    Mr Gobbert gave evidence that when Mr Nelson read out the email confirming that there was no promise to fund the purchase just because the deposit was met, Mr Gobbert was devastated and shocked.[213]  Mr Gobbert did not recall saying anything to Mr Nelson about his devastation and shock.[214]
  1. [160]
    Having observed Mr Gobbert give evidence, including his passionate evidence about his attitude towards Rural Bank and Elders and the valuations they adopted of his properties in 2012,[215] I am of the view that Mr Gobbert would not have held back if he honestly believed Elders and Rural Bank had misled him.  This evidence reinforces my impression that Mr Gobbert did not form the view that finance had been, or would be, approved when he heard the “stretch” statement.  I consider that his recollection about what he believed at the time the statement was made has been infected by the passage of time.  In this respect, I again refer to my observations in paragraph [89].
  1. [161]
    As to Mrs Gobbert’s evidence that Mr Nelson was shocked,[216] that evidence amounts to her subjective impression of Mr Nelson’s emotional state.  She gave no evidence at all of any words spoken about his alleged shock by Mr Gobbert, herself or Mr Nelson.  I am not confident of her ability to properly assess Mr Nelson’s emotional state.  I give that evidence no weight.  What is telling is the lack of comment about any reneging on finance: that speaks most eloquently to the state of mind of the parties.  It does not, however, discount the likelihood of the “stretch” statement, rather it again reinforces that the statement was made and understood to indicate that it would be a tough sell.
  1. [162]
    Fourth, Rural Bank submits that Mrs Gobbert tried to limit the purpose of the 20 October meeting to “finalising finance”.[217]  That is not what I appreciated Mrs Gobbert’s evidence to be.  Mrs Gobbert said “we just starting discussing cash flows for the application – finalising the application for the purchase of Ballandool”.  This is consistent with the fact that the application was still underway, and information was being gathered to finalise it so that Rural Bank could then make an assessment about whether to grant approval.
  1. [163]
    Fifth, it was not until 18 November 2014 that any suggestion of reliance on any representation was made, and then in the most general terms.[218]  I do not regard this as a basis to reject Mr Gobbert’s evidence that the “stretch” statement was made.  It does, however, reinforce that he did not genuinely hold the belief that Mr Nelson was indicating that finance had been, or would be, approved.
  1. [164]
    On balance, I am satisfied that the conversation occurred in the way described by Mr Gobbert.  Mr Gobbert struck me as generally reliable when recounting his recollection of statements made.  It was my impression that it was only when recounting his reaction to views that he formed as a consequence of particular actions or statements that Mr Gobbert’s recollection was infected by the passage of time and his own wishful thinking.
  1. [165]
    Accordingly, I am satisfied that the “stretch” statement was made. 

Was there misleading or deceptive conduct?

  1. [166]
    It is accepted by all parties that finance had not been approved by 17 October 2014.
  1. [167]
    It is also incontrovertible that Mr Nelson had no reasonable grounds to make a statement, either at or prior to the auction, with the meaning or effect that finance would be approved, in circumstances where he gave evidence that he had not formed that view.[219]
  1. [168]
    The real issue is whether the conversations of 15 October 2014, 16 October 2014 and the “stretch” statement had the meaning or effect that finance had been, or would be, approved.

Meaning and effect of the 15 October 2014 conversation

  1. [169]
    It is plain from the evidence of Mr Gobbert referred to in paragraph [109] above that, immediately following the conversation with Mr Gee on 15 October 2014, he did not believe finance had been approved.  Mr Gobbert’s evidence also does not provide support for a reasonable belief, at 15 October 2014, that finance would be approved, just that Mr Nelson would try hard to seek finance.

Meaning and effect of the 16 October 2014 conversation

  1. [170]
    Mr Gobbert gave evidence that his conversation with Mr Nelson, particularly Mr Nelson’s indication that he would go to the auction with Mr Gobbert and that he would be wearing his Elders shirt, “bolstered [Mr Gobbert’s] opinion that finance was approved, given the conversation I had with Alan Gee the day before.”[220] 
  1. [171]
    Mr Jason Gobbert also said that, following the conversation with Mr Nelson, he phoned:
  1. (a)
    Mr Gee and told him Mr Nelson was going to the auction with the Plaintiffs;[221] and
  1. (b)
    his brother and said “You better get your arse down here.  Paul’s coming to the auction with us.”[222]  It is not, however, suggested that Mr Jason Gobbert told his brother that finance had been approved.
  1. [172]
    Mr Gobbert’s evidence about his actions following the conversation are consistent with:
  1. (a)
    Mrs Gobbert’s evidence that she and her husband had discussed the auction about one week before it was due to occur and Mr Gobbert had indicated that he was not intending to attend the auction without a commitment from the bank;[223] and
  1. (b)
    Mr Alexander Dean Gobbert’s evidence that:
  1. (i)
    a few days before the auction he and Mr Jason Gobbert had decided not to attend the auction because they did not have any backing from a bank;[224] and
  1. (ii)
    the day prior to the auction, he had a conversation with Mr Jason Gobbert in which:
  1. (A)
    his brother indicated that Mr Nelson had offered to come to the auction; and
  1. (B)
    he and his brother agreed to go to the auction. 
Mr Alexander Dean Gobbert agreed to go to the auction because Mr Nelson’s offer “felt like backing, that felt like support”.[225]  There was no suggestion by Mr Alexander Dean Gobbert that he had been told that finance had been approved.
  1. [173]
    Despite this, I am not satisfied that Mr Gobbert actually formed the view that finance had been approved: his evidence in this regard seems improbable given the circumstances.[226]  Mr Gobbert’s assertion that his opinion had been “bolstered” is confusing.  It suggests that he had already come to the view that finance had been approved.  This is inconsistent with the view that he formed after his conversation with Mr Gee on 15 October 2014.
  1. [174]
    I do not regard Mr Gobbert’s testimony as deliberately dishonest, rather his recollection in this respect struck me as affected by what he wished to believe. 
  1. [175]
    I am also not satisfied that Mr Gobbert formed the view that finance would be approved, or that a reasonable person in his position would have formed the view that finance had been, or would be, approved, based on the 16 October 2016 conversation with Mr Nelson because:
  1. (a)
    Mr Gobbert’s decision to attend the auction is equally consistent with the actions with someone who was keeping all options open for the auction, including going to the auction in the hope that the property would be passed in so that a contract subject to finance could be negotiated after the auction.  Mr Gobbert admitted, in his conversation with Mr Nelson on 14 October 2014, that he had been intending to attend the auction with that in mind.[227]  He had also discussed a similar strategy with his wife.[228]  Mr Gobbert’s behaviour with respect to the deposit is consistent with such a strategy also;
  1. (b)
    the conversation Mr Gobbert recounts was too vague to reasonably sustain the conclusion that the Plaintiffs had approval for, or would receive approval for, finance;
  1. (c)
    even if, by reason of the conversation with Mr Nelson on 16 October 2016, Mr Gobbert had assumed that finance was approved or would be forthcoming, the assumption is not a reasonable one in light of the context referred to in paragraphs [30] to [92] above, particularly given:
  1. (i)
    Mr Nelson had never represented to him that he had any authority to approve finance;
  1. (ii)
    previous communications with Mr Nelson with respect to other finance applications indicated that Mr Nelson did not have the authority to approve finance;
  1. (iii)
    unlike in the previous applications for finance, there had been no express or unequivocal statement by Mr Nelson that Rural Bank had approved finance;
  1. (iv)
    Mr Gobbert, or a reasonable person in his position, would have appreciated that Mr Nelson was effectively commencing from a standing start on 14 October 2014;
  1. (v)
    the Plaintiffs did not provide any information about the current position of the existing business and nothing at all about the Property, its value, likely revenue or costs.  No detail was provided that would enable Elders to prepare a cash flow forecast.  (In this respect, I am not satisfied that Mr Gobbert’s evidence that “there was a number of conversations with Paul after the financials were sent to him”[229] demonstrates that details were provided);
  1. (vi)
    Mr Gobbert understood that a cash flow forecast was a matter that Rural Bank looked to in determining whether the Plaintiffs could service a loan in the future[230] as the likelihood that the Plaintiffs would be able to service their loan in the future was an important part of the assessment process for Rural Bank.[231]  Mr Gobbert’s enthusiastic urging of the benefits of the Latevo insurance product impressed me as a clear demonstration of this (even though Mr Gobbert did not accept that was the reason he was so keen for the Rural Bank to consider the product).[232]  The point of the product was to guarantee income in the event that a crop failed;
  1. (vii)
    Mr Gobbert understood, or at least a reasonable person in his position would have understood, at the date of the auction, that:
  1. (A)
    finance would not be able to be assessed, much less approved, unless a cash flow forecast had been finalised with his input and assistance;
  1. (B)
    the development of the cash flow forecast for the Property was likely to require considerable work; and
  1. (C)
    that work had not been done and no cash flow forecast had been developed prior to the auction;  
  1. (viii)
    the statement of assets and liabilities provided by Mr Gobbert was based on his estimate of the values of the relevant property, which had not been substantiated by valuations;
  1. (ix)
    Mr Gobbert understood that:
  1. (A)
    a loan to value ratio is one of the parameters that Rural Bank would look at in deciding whether to lend money and that up to date valuations would be required; and
  1. (B)
    Rural Bank would not rely on the valuations included in the statement of asset and liabilities for Byra and Davirton because they provided for a large increase (over 25 per cent) on the valuations of those properties over the values contained in Rural Bank’s 2012 valuations (which were then just two years old);[233] and
  1. (x)
    Mr Gobbert knew, or at least a reasonable person in his position would have known, that Rural Bank was not in a position to consider the security value of the existing properties on the basis of the statement of assets and liabilities provided for him.  It would require new valuations.  The fact that Rural Bank could, and in the past did, approve a loan subject to valuation does not assist the Plaintiffs case.  There is no suggestion that it indicated such a condition in this case.[234]  In the past, where approval was subject to valuation, it made an express statement in that regard.

Events at the auction

  1. [176]
    As is observed by Burchett J in Adour Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia & Ors [1991] FCA 502; [1991] ASC 56-107 at [19]:

“The conduct of business would be impossible if businessmen could not rely on representations, except those made at the very highest level of management. Customers of the Bank were entitled to proceed on the assumption that its branch manager and loans officer could communicate the Bank’s attitude towards an application for a loan.”

  1. [177]
    However, whether a lack of awareness “of the real nature of the Bank's reservations”[235] is sufficient to establish misleading conduct will depend on the facts of the particular case. 
  1. [178]
    The Plaintiffs submit that the “stretch” statement should be characterised as meaning or having the effect that finance had been, or would be, approved.[236]
  1. [179]
    Mr Gobbert gave the following evidence about the meaning of the “stretch” statement:[237]

“And what did you understand Mr Nelson to mean by this?‑‑‑A bit of a stretch is doable, it’s achievable.  We can get that done.

And by “get that done,” are you referring to the finance of the purchase?‑‑‑Yes, I am.”

  1. [180]
    The Macquarie Dictionary sheds some light on the accepted colloquial meaning of the phrase “a bit of a stretch” under its definition of the word “stretch”:[238]

… 23. be a bit of a stretch, a. to require a maximum physical or mental effort.  b. to be difficult to believe: his claim was a bit of a stretch.  24. stretch a point, to go beyond the usual limits.

  1. [181]
    This colloquial meaning of the phrase resonates with the sense in which it was used by Mr Nelson and must reasonably have been understood by Mr Gobbert on 17 October 2014 when used in the following sequence of events:
  1. (a)
    bidding on the Property rose to $6.75 million;
  1. (b)
    at that point, Mr Gobbert asked Mr Nelson “what do you think?”;
  1. (c)
    Mr Nelson replied “it will be a bit of a stretch”; and
  1. (d)
    Mr Gobbert placed a bid of $6.8 million.
  1. [182]
    In the context in which the Plaintiffs rely on it, the statement is redolent of the risk that finance might not be possible. Even Mr Gobbert conceded that the effect of the words “it will be a bit of a stretch” was different from saying finance would definitely be provided or that it was certain.[239]  The words cannot sustain such a meaning.
  1. [183]
    Further, there is nothing in the pre-auction context that suggests that the words “it will be a bit of a stretch” could reasonably sustain a meaning other than that it will be a challenge to get finance for the Plaintiffs.

Conclusion regarding misleading or deceptive conduct

  1. [184]
    For the reasons explained above, I am not satisfied that, at the time Mr Gobbert made the unconditional bid, he had been misled, by the conduct of Mr Paul Nelson, into believing that Rural Bank had or would approve finance.

Was there reliance on misleading or deceptive conduct?

  1. [185]
    As I have found that there was no misleading or deceptive conduct, it is unnecessary to consider whether Mr Gobbert relied on the “stretch” statement, or on Mr Nelson’s conduct in the 16 October 2014 telephone conversation, in deciding to bid at the auction.  Nevertheless, I make the following observations.
  1. [186]
    Mr Gobbert gave evidence about his decision to bid as follows:[240]

“Did you bid?‑‑‑Yes, I made one bid.

And why did you bid?‑‑‑Because I assumed that the finance was approved.

And what would you have done if Mr Nelson had told you – had not said to you it would be a bit of a stretch?‑‑‑I wouldn’t have bid.

And what was the result of the auction?‑‑‑It was knocked down to me.”

  1. [187]
    The Plaintiffs submit that Mr Gobbert’s evidence that he would not have bid should be accepted because:
  1. (a)
    it is consistent with the evidence of Mr Alexander Dean Gobbert,[241] Mrs Gobbert[242] and Mr Nelson[243] that Mr Jason Gobbert told them that he would not be attending or bidding at the auction if he did not have finance;
  1. (b)
    Mr Gobbert made efforts to arrange finance prior to the auction, like a cautious business man, which is curious conduct if Mr Gobbert intended to bid on the Property in any event;
  1. (c)
    Mr Gobbert’s efforts to pre-arrange a deposit are, like his efforts to obtain finance, no more than the actions of a cautious businessman. They do not show that he intended to bid in any event; and
  1. (d)
    $6.8 million is a substantial figure, and would have involved a significant increase in the Plaintiffs’ borrowings.
  1. [188]
    I accept that, at one point, Mr Gobbert was of the view that there was no point attending the auction unless there was a prospect that finance would be approved. However, it seems to me that Mr Gobbert was so keen on purchasing the property that he heard what he wanted to hear and would take anything other than a statement that finance would not be approved as a positive sign. Mr Gobbert’s attitude, in this respect, is evident from:
  1. (a)
    Mr McDonald’s evidence referred to in paragraph [89] above;
  1. (b)
    the evidence of Mr and Mrs Gobbert that Mr Gobbert went to the auction in the hope that the Property would be passed in,[244] which evidence is consistent with Mr Nelson’s diary note;[245] and
  1. (c)
    the arranging of funding for a deposit, separate from having finance approved, suggests that Mr Gobbert had bidding without finance in contemplation from at least 6 October 2014 when he discussed the matter with Mr Gee.
  1. [189]
    Further, that Mr Gobbert decided to bid and take the risk on finance appears to be consistent with:
  1. (a)
    the fact that the Property seemed very cheap compared to its previous price of $10.5m;[246]
  1. (b)
    the fact that the Property was particularly well located to increase efficiency of the overall business; and
  1. (c)
    Mr Gobbert’s general practices of being willing to take a chance, which converted the modest business of his father, Stanley, into the multi-million dollar business of 2014.[247]

Conclusion

  1. [190]
    The Plaintiffs’ claim is dismissed. I will hear from the parties on costs.

Footnotes

[1]References to Mr Gobbert are a reference to Mr Jason Gobbert unless specified otherwise.

[2]The case was clarified during oral submissions – T5-3/L8-18 (Forder).

[3]First Defendant’s Submissions in Reply – Court Doc 43 [1]; Further Amended Defence of the Second Defendant – Court Doc 19 [47(a)].  See also Plaintiff’s Closing Submissions – Court Doc 39 pp 6-7 [18]-[28].

[4]Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198-199 per Gibbs CJ; and see Lockhart, The Law of Misleading or Deceptive Conduct, 2nd ed (2003), pp 60-61 [3.2]-[3.3] and authorities cited therein.

[5]Consistently with the words “likely to mislead or deceive” which indicate that it is unnecessary to show that any person was actually misled or deceived – Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 198.

[6]Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45, at 85 [101].

[7](2000) 202 CLR 45 at 85 [103].

[8](2004) 218 CLR 592.

[9](2004) 218 CLR 592 at 604-605 [37] per Gleeson CJ, Hayne and Heydon JJ.

[10](2004) 218 CLR 592 at 623 [103].

[11]McHugh J dissented in the result of the particular case but not as to these questions of principle.

[12](2004) 218 CLR 592 at 625 [109]. See also the judgment of the Court in Campomar Sociedad Limitada v Nike International Ltd (2000) 202 CLR 45 at 84 [200].

[13]See Equity Access Pty Ltd v Westpac Banking Corporation [1990] ATPR ¶50,943 (40-994) at 50,950 per Hill J; see also Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202-203 per Deane and Fitzgerald JJ.

[14]See, eg, Trade Practices Commission v Lamova Publishing Corporation Pty Ltd (1979) 42 FLR 60 at 65-66; 28 ALR 416 at 421-422 per Lockhart J.

[15]See, eg, Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535 at 541 per Sheppard J, Hill J agreeing.

[16]Contact Minerals Pty Ltd v Mineral Providers Australia Pty Ltd [2001] FCA 1042, [32]; Amalgamated Television Services v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, 165 citing Jones v Skelton (1963) 63 SR (NSW) 644; 80 WN (NSW) 1061.

[17]Language used in, for example, Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; (2013) 250 CLR 640, 656 [52]; see also 654 [47].

[18]T1-8/L20-45 (Gobbert).

[19]T1-9/L1-6 (Gobbert).

[20]See Further Amended Statement of Claim – Court Doc 30 [1(c)]; Amended Defence of the First Defendant – Court Doc 20 [3] and Further Amended Defence of the Second Defendant – Court Doc 19 [1].

[21]Trial Bundle – Exhibit 1 Tab 41.

[22]T1-24/L25-45 (Gobbert).

[23]T2-62/L18-21 (Nelson).

[24]T3-17/L17-35 (Nelson); T3-18/L1-5 (Nelson); Trial Bundle – Exhibit 1 Tabs 1 – 5 and Tabs 7 – 8.  From the letterheads it seems the change from Elders Rural Bank to Rural Bank occurred before 5 October 2009.

[25]Amended Defence of the First Defendant – Court Doc 20 [4.2]; T3-18/L6-20 (Nelson).

[26]T3-18/L19-24 (Nelson).

[27]T3-18/L6-17 (Nelson).

[28]T2-62/L25-45 (Nelson).

[29]T2-62/L37-40 (Nelson).

[30]T3-19/L39 – T3-20/L5 (Nelson).

[31]T3-19/L42-46 and T3-21/L22-47 (Nelson).

[32]T3-21/L41-47 (Nelson); T4-10/L11-18 (Black).

[33]Amended Defence of the First Defendant – Court Doc 20 [6.1]; Amended Reply to Amended Defence of the First Defendant – Court Doc 21 [2]; T1-25/L1-4 (Gobbert); T3-17/L43-45 (Nelson).

[34]T1-9/L8-45 (Gobbert); T1-24/L43-45 (Gobbert); Exhibit 1 Tabs 7 and 8.

[35]T1-9/L8 – T1-10/L4 (Gobbert); T4-3/L23-29 (Black).

[36]Documentation provided to the Plaintiffs in August 2012 gave Mr Black’s title as “District Banking Manager” – see Trial Bundle – Exhibit 1 Tabs 33 and 39.

[37]T4-2/L34-42 (Black).

[38]T1-10/L6-7 (Gobbert); T2-65/L20-21 (Nelson); T4-3/L19-21 (Black).  Documentation provided to the Plaintiffs on 7 August 2012 refers to Elders as agent of Rural Bank – see Trial Bundle – Exhibit 1 Tab 33 pp 118, 119, 125 and 140.

[39]T1-10/L6-11 (Gobbert).

[40]T1-10/L15-16 (Gobbert).

[41]T3-54/L1-6 (Ormsby).

[42]T1-10/L18-25 (Gobbert).

[43]T3-16/L24-35 (Nelson); T4-8/L23-34 (Black).

[44]T1-9/L7-46 (Gobbert).

[45]T3-16/L30-32 (Nelson).

[46]T1-11/L1-3 (Gobbert).

[47]T1-11/L5-9 (Gobbert).

[48]See Exhibit 9, which records that the property is going to auction on 10 September.

[49]T1-11/L11 (Gobbert).

[50]T1-54/L5-8 (Gobbert).

[51]T1-30/L41-47 (Gobbert).

[52]T1-11/L13-21 (Gobbert); Exhibit 9; T3-2/L29 – T3-4/L2 (Nelson).

[53]T1-11/L23-30 (Gobbert); Trial Bundle – Exhibit 1 Tab 16.

[54]T1-28/L45 – T1-30/L6 and T1-49/L11 – T1-52/L13 (Gobbert); Trial Bundle – Exhibit 1 Tabs 16 and 19.

[55]T1-28/L23-34 (Gobbert).

[56]T1-28/L38-43 (Gobbert).

[57]T1-11/L32-41 (Gobbert); Trial Bundle – Exhibit 1 Tab 19.

[58]T1-30/L8-11 (Gobbert).

[59]T1-11/L45 - T1-12/L14 (Gobbert); T3-26/L42-44 (Nelson).

[60]T1-11/L45-46 (Gobbert); Trial Bundle – Exhibit 1 Tab 23.

[61]Trial Bundle – Exhibit 1 Tab 23.

[62]T1-30/L25-36 (Gobbert).

[63]T1-12/L10 (Gobbert).

[64]T1-12/L14 (Gobbert).

[65]T1-12/L16-23 (Gobbert).

[66]Trial Bundle – Exhibit 1 Tab 40.

[67]T1-12/L27-29 (Gobbert).

[68]T1-12/L29 – T1-13/L6 (Gobbert); Exhibit 13; T4-12/L10 (Black).

[69]Trial Bundle – Exhibit 1 Tab 40.

[70]T1-12/L40 - T1-13/L25 (Gobbert); Trial Bundle – Exhibit 1 Tab 41.

[71]T1-52/L15 - T1-53/L35 (Gobbert).

[72]T1-13/L30 - T1-14/L5 (Gobbert); Trial Bundle – Exhibit 1 Tab 43.

[73]Trial Bundle – Exhibit 1 Tab 42; T1-53/L37 – T1-54/L8 (Gobbert).

[74]T1-14/L9-15 and T1-32/L32 – T1-33/L3 (Gobbert); T3-27/L33-35 (Nelson); Exhibit 9; see also Exhibit 10.

[75]Exhibit 10; T1-32/L43 – T1-33/L12 (Gobbert).

[76]Exhibit 9.  See also Exhibit 10 and Trial Bundle - Exhibit 1 Tabs 46 and 47; T3-24/L6-27 (Nelson).

[77]T1-54/L10-17 (Gobbert); Exhibit 10; T3-25/L22-32 (Nelson).

[78]T1-14/L19 (Gobbert).

[79]T1-14/L23-24 (Gobbert).

[80]Trial Bundle – Exhibit 1 Tabs 16 and 23 (Balgai 1) and Trial Bundle – Exhibit 1 Tab 41(Balgai 2).

[81]Trial Bundle – Exhibit 1 Tab 19 (Balgai 1) and Trial Bundle – Exhibit 1 Tab 42 (Balgai 2).

[82]T1-47/L4-10 (Gobbert).

[83]T1-28/L23-43 (Gobbert).

[84]T1-14/L26-38 (Gobbert).

[85]T1-14/L26-30 (Gobbert).

[86]T1-14/L40-46 (Gobbert).

[87]T1-15/L1 (Gobbert).

[88]T1-15/L5-17 (Gobbert).

[89]T1-15/L21-30 (Gobbert).

[90]T1-15/L40-41 (Gobbert).

[91]T3-56/L22-41 (Ormsby).

[92]T3-58/L1-12 (Ormsby).

[93]Trial Bundle – Exhibit 1 Tab 64.

[94]T1-16/L5-8 (Gobbert).

[95]T1-16/L25 (Gobbert).

[96]T1-16/L29-40 (Gobbert).

[97]T1-17/L31-35 (Gobbert).

[98]T1-16/L42-46 (Gobbert).

[99]T1-17/L1-3 (Gobbert).  See also file note by Mr Nelson – Trial Bundle – Exhibit 1 Tab 67.

[100]T1-17/L5-8 (Gobbert).

[101]A letter from Mr Gobbert to Mr Brown of Rural Bank on 21 November 2014 reinforces that Mr Gobbert did appreciate that Mr Nelson was starting from scratch.  That letter states that “On or about the 13th October, I rang Paul Nelson to voice my discuss (sic) with the way Rob had handled me.  He said Rob was on holidays that is why I had not herd (sic) from him.  Paul said he would need some new numbers.” (emphasis added) – Trial Bundle – Exhibit 1 Tab 131.

[102]Trial Bundle – Exhibit 1 Tab 68.

[103]Trial Bundle – Exhibit 1 Tab 64.

[104]Trial Bundle – Exhibit 1 Tabs 67 - 74.

[105]Trial Bundle – Exhibit 1 Tab 74 pp 502 and 504; T1-54/L40 – T1-55/L39 (Gobbert).

[106]T1-55/L32-34 (Gobbert).

[107]Trial Bundle – Exhibit 1 Tab 75.

[108]Submissions of the Second Defendant – Court Doc 38 p 20 [85].

[109]T1-59/L14-16 (Gobbert).

[110]T1-59/L31-45 (Gobbert).

[111]T1-55/L36-39 and T1-57/L25-29 (Gobbert); T1-74/L32 (Mr Alexander Dean Gobbert).

[112]Trial Bundle – Exhibit 1 Tab 76.

[113]Trial Bundle – Exhibit 1 Tab 78; T1-60/L8-9 (Gobbert).

[114]T1-26/L1-17 (Gobbert).

[115]T1-26/L19-26 (Gobbert).

[116]T1-26/L28-37 (Gobbert).

[117]T1-26/L39-45 (Gobbert).

[118]T1-60/L1 – T1-61/L25 (Gobbert).

[119]T1-61/L1-15 (Gobbert).

[120]T2-33/L38-43 (McDonald).

[121]T2-34/L36-39 (McDonald).

[122]T2-34/L40-45 (McDonald).

[123]T1-15/L13-14 (Gobbert).

[124]T1-45/L29-31 (Gobbert).

[125]T5-37/L31 – T5-38/L8 (Pyle).  The Plaintiffs’ Closing Submissions suggest that the Plaintiffs also allege that there was misleading or deceptive conduct by reason of Mr Nelson’s failure to warn Mr Gobbert that finance had not been approved or that there was a real risk that it might not be approved – see Court Doc 39 p 56 [159].  During oral submissions the Plaintiffs clarified that to the extent that their written submissions make an argument that Mr Nelson’s silence alone amounts to a representation that finance had been or would be approved, the Plaintiffs do not rely on that argument – see T5-3/L8-18 (Forder).

[126]T5-51/L13-31 (Pyle).

[127]T2-37/L1-5 (Mr Gee).

[128]T2-37/L7-25 (Mr Gee).

[129]T2-39/L35-41 (Mr Gee).

[130]T2-57/L32-37 (Mrs Gee).

[131]T2-37/L45 - T2-38/L14 (Mr Gee).

[132]T2-57/L39 - T2-58/L9 (Mrs Gee).

[133]Plaintiffs’ Closing Submissions – Court Doc 39 p 52 [147t] and [147u].

[134]T3-34/L5-7 (Nelson).

[135]T3-34/L9-10 (Nelson).

[136]T3-34/L12-17 (Nelson).

[137]T3-34/L19-23 (Nelson).

[138]Submissions of the Second Defendant – Court Doc 38 p 28 [124(a)].

[139]First Defendant’s Closing Submissions – Court Doc 40 p 15 [72] and [73]; Submissions of the Second Defendant – Court Doc 38 pp 28 – 29 [124(c)].

[140]Submissions of the Second Defendant – Court Doc 38 pp 29 – 30 [124(e)].

[141]Submissions of the Second Defendant – Court Doc 38 p 30 [126(f)].

[142]T2-48/L4–16 (Mr Gee).

[143]T3-46/Ll1-16 (Nelson).

[144]Submissions of the Second Defendant – Court Doc 38 p 28 [126(a)].

[145]T2-38/L45 – T2-39/L2 (Mr Gee).

[146]Submissions of the Second Defendant – Court Doc 38 p 29 [126(c)(iii)].

[147]First Defendant’s Closing Submissions – Court Doc 40 pp 15-16 [74] and [75].

[148]Submissions of the Second Defendant – Court Doc 38 p 30 [126(b)].

[149]T3-10/L4-27 and T3-31/L4-28 (Nelson).

[150]T3-8/L34 (Nelson).

[151]T3-9/L29-30 (Nelson).

[152]My concerns in this respect are evident from the transcript where, on two occasions, I sought clarification from the witness when he gave particularly evasive answers – see T3-39/L11-27 and T3-45/L3-12 (Nelson).  Other examples of his non-responsive answers are evident at T3-8/L0-41; T3-12/L20-22; T3-14/L36-38 and T3-24/L6-13.

[153]See, for example, his evidence at T3-24/L6-13, where he confidently answers that he recalled warning Mr Gobbert at the coffee shop that finance had not been approved, as compared to his evidence at T3-11/L42-43 where he says he believes he had conversations at the coffee shop but does not particularly recall, and his evidence at T3-38/L30-31 that he was “pretty sure” that he warned Mr Gobbert “somewhere along the line”.

[154]T2-38/L35 - T2-39/L2 (Mr Gee).

[155]T1-17/L43 – T1-18/L7 (Gobbert).

[156]Trial Bundle - Exhibit 1 Tab 78.

[157]T1-18/L9-34 (Gobbert).

[158]T1-18/L36 – T1-19/L5 (Gobbert).

[159]T3-10/L29–40 (Nelson).

[160]T3-36/L1-46 (Nelson).

[161]Plaintiff’s Closing Submissions – Doc 39 p 52 [147x].

[162]T1-18/L36-41 and T1-45/L29-37 (Gobbert).

[163]Evidence of Jason Gobbert, T1-18/L36 - T1-19/L5 (Gobbert).

[164]Submissions of the Second Defendant – Court Doc 38 pp 33 – 34 [140].

[165]See the admission at T2-36/L3-28 (Pyle).  See also T2-2/L14 – T2-3/L11 regarding the genesis of the admission.

[166]My view is not changed by the fact that Mr Gobbert, in a letter to Mr Brown of Rural Bank dated 21 November 2014, wrote “The auction was in Brisbane the next day, so I rang Paul Nelson, to ask what did he think after looking over our numbers.” – See Trial Bundle – Exhibit 1 Tab 131.

[167]Trial Bundle – Exhibit 1 Tab 131.

[168]T3-46/L28-33 (Nelson) and T1-42/L46 – T1-43/L22 (Gobbert).

[169]T1-17/L1-8 and T1-64/L18-38 (Gobbert) .

[170]T1-19/L18-22 (Gobbert).

[171]Submissions of the Second Defendant – Court Doc 38 pp 35 – 36 [145] – [151].

[172]Trial Bundle – Exhibit 1 Tab 67.

[173]Trial Bundle – Exhibit 1 Tab 86.

[174]T1-16/L10-21; T1-64/L10 – T1-65/L11 (Gobbert).

[175]T1-64/L21-45 (Gobbert).

[176]T1-16/L10-21; T1-64/L10 – T1-65/L11 (Gobbert).

[177]T1-40/L27-31 (Gobbert).  See also T2-18/L30-35 (Mrs Gobbert).

[178]Plaintiffs’ Closing Submissions – Court Doc 39 p 56 [159].

[179]Amended Defence of the First Defendant – Court Doc 20 p 11 [21.2]; Further Amended Defence of the Second Defendant – Court Doc 19 p 5 [24].

[180]T1-19/L24 - T1-20/L11; see also T1-43/L24-30 (Gobbert).

[181]T1-71/L16-L30 (Alexander Dean Gobbert).

[182]T2-7/L41 - T2-8/L34 (Mrs Gobbert).

[183]T2-26/L39 - T2-27/L35 (McDonald).

[184]T2-31/L1-35 (McDonald).

[185]T3-11/L42-43 (Nelson).

[186]T3-29/L20-30 (Nelson).

[187]T3-39/L4-9 (Nelson).

[188]Trial Bundle – Exhibit 1 Tab 123.

[189]Linfield Developments Pty Limited v Shuangxing Development Pty Limited [2016] NSWSC 68, 10.

[190]T1-20/L10-29 (Gobbert); T1-71/L32-43 (Mr Alexander Dean Gobbert); T2-8/L33 – T2-9/L2 (Mrs Gobbert); T2-27/L31 – T2-28/L2 (McDonald).

[191]T1-20/L36-41 (Gobbert); T1-72/L9-11 (Mr Alexander Dean Gobbert); T2-9/L6-14 (Mrs Gobbert); T2-28/L10-15 (McDonald).

[192]T1-21/L1-9 (Gobbert).

[193]T1-21/L11-16 (Gobbert); T1-72/L27-32 (Mr Alexander Dean Gobbert); T2-9/L24-33 (Mrs Gobbert); T2-28/L19-24 (McDonald).

[194]T1-21/L18-19 (Gobbert); T1-72/L27-32 (Mr Alexander Dean Gobbert); T2-9/L35-41 (Mrs Gobbert); T2-28/L26-30 (McDonald); Submissions of the Second Defendant – Court Doc 38 pp 37-38 [165].

[195]T1-21/L24-28 (Gobbert); T1-72/L34-39 (Mr Alexander Dean Gobbert); T2-9/L43 – T2-10/L1 (Mrs Gobbert); T2-28/L32-36 (McDonald); Submissions of the Second Defendant – Court Doc 38 pp 37-38 [165].

[196]T1-21/L35-37 (Gobbert); T1-72/L41-46 (Mr Alexander Dean Gobbert).

[197]T1-21/L18-28 (Gobbert).

[198]Evidence of Geoffrey McDonald, T2-28, L30 to L35; T2-32, L35 (23 May 2017).

[199]T1-72/L27-32 (Mr Alexander Dean Gobbert); T2-9/L35-41 (Mrs Gobbert); T2-28/L26-30 (McDonald).

[200]T1-72/L34-39 (Mr Alexander Dean Gobbert); T2-9/L43 – T2-10/L1 (Mrs Gobbert); T2-28/L32-36 (McDonald).

[201]T3-12/L20-27 (Nelson).

[202]T3-45/L16-25 (Nelson).

[203]T3-45/L26-28 (Nelson).

[204]T3-45/L30-31 (Nelson).

[205]T3-45/L33-34 (Nelson).

[206]T1-18/L45-46 and T1-21/L39 (Gobbert).

[207]Trial Bundle – Exhibit 1 Tab 131.

[208]T1-67/L36-43 (Gobbert).

[209]Trial Bundle - Exhibit 1 Tab 131.

[210]T1-24/L7-8 (Gobbert).

[211]T3-42/L28-30 (Nelson).

[212]T3-42/L32-41 (Nelson).

[213]T1-22/L43-44 (Gobbert).

[214]T1-23/L12-13 (Gobbert).

[215]Mr Gobbert gave evidence that he had “… a really big argument with Bruce Black ...” - T1-61/L1–15.

[216]T2-10/L40-44 (Mrs Gobbert).

[217]T2-10/L26-27 and 19.05–19.09.

[218]Trial Bundle – Exhibit 1 Tab 122.

[219]T3-35/L1-23 (Nelson).

[220]T1-18/L45 – T1-19/L5 (Gobbert).

[221]T1-19/L7-8 (Gobbert).

[222]T1-19/L10-11 (Gobbert).

[223]T2-7/L29-33 and T2-16/L6-19 (Mrs Gobbert).

[224]T1-70/L28-32 (Mr Alexander Dean Gobbert).

[225]T1-70/L45 – T1-71/L8 (Mr Alexander Dean Gobbert).

[226]See, in particular, paragraphs [89], [106] - [110], [112], [113], [129], [156], [160] - [164] and [173].

[227]T1-40/L27-31 (Gobbert).  See also T2-18/L30-35 (Mrs Gobbert).

[228]T2-18/L30-35 (Mrs Gobbert).

[229]T1-46/L21-23 (Gobbert).

[230]T1-28/L23-34 (Gobbert).

[231]T1-28/L38-43 (Gobbert).

[232]T1-57/34 – T1-59/L12 (Gobbert).

[233]T1-60/L1 – T1-61/L25.

[234]See Plaintiff’s Submissions in Reply – Court Doc 42 p 16 [47].

[235]Adour Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia & Ors [1991] FCA 502; [1991] ASC 56-107, [20].

[236]Plaintiffs’ Closing Submissions – Court Doc 39 pp 49 – 55 [146] – [151].

[237]T1-21/L30-33 (Gobbert).

[238]Macquarie Dictionary (6th Ed) – See First Defendant’s Closing Submissions – Court Doc 40 p 8 [35].

[239]T1-44/L24-31 (Gobbert).

[240]T1-21/L37-44 (Gobbert).

[241]T1-70/L31-32 (Mr Alexander Dean Gobbert).

[242]T2-7/L29-33 (Mrs Gobbert).

[243]T3-46/L18-26 (Nelson).

[244]T1-40/L27-31 (Gobbert); T2-18/L30-35 (Mrs Gobbert).

[245]Trial Bundle – Exhibit 1 Tab 88 [4].

[246]T1-14/L35-38.

[247]Trial Bundle – Exhibit 1 Tab 41.

Close

Editorial Notes

  • Published Case Name:

    Gobbert & Ors v Elders Rural Services Australia Limited & Anor

  • Shortened Case Name:

    Gobbert v Elders Rural Services Australia Limited

  • MNC:

    [2017] QDC 219

  • Court:

    QDC

  • Judge(s):

    Kefford DCJ

  • Date:

    30 Aug 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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Adour Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia & Ors [1991] FCA 502
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Cite 2 - [1991] FCA 502
Cite 3 - [1991] FCA 502
Adour Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia & Ors [1991] ASC 56-107
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Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
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Cite 2 - (1998) 43 NSWLR 158
Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4
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Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60
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Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592
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Cite 5 - (2004) 218 CLR 592
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Campbell v Backoffice Investments Pty Ltd [2009] HCA 25
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Cite 2 - [2009] HCA 25
Cite 3 - [2009] HCA 25
Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304
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Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45
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Contact Minerals Pty Ltd v Mineral Providers Australia Pty Ltd [2001] FCA 1042
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Cite 2 - [2001] FCA 1042
Coombs v Bahama Palm Trading Pty Ltd (1991) ASC 56
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Downey v Carlson Hotels Asia Pacific Pty Ltd [2005] QCA 199
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Cite 2 - [2005] QCA 199
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Equity Access Pty Ltd v Westpac Banking Corporation [1990] ATPR 50,943
1 citation
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Cite 1 - [1990] ATPR 50,943
George v Cluning (1979) 28 ALR 416
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Cite 1 - (1979) 28 ALR 416
Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560
1 citation
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Cite 1 - [2013] EWHC 3560
Jones v Skelton (1963) 63 S.R. N.S.W. 644
1 citation
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Cite 1 - (1963) 63 S.R. N.S.W. 644
Jones v Skelton (1963) 80 WN (NSW) 1061
1 citation
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Cite 1 - (1963) 80 WN (NSW) 1061
Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 35 FCR 535
1 citation
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Cite 1 - (1992) 35 FCR 535
Linfield Developments Pty Limited v Shuangxing Development Pty Limited [2016] NSWSC 68
3 citations
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Cite 1 - [2016] NSWSC 68
Cite 2 - [2016] NSWSC 68
Cite 3 - [2016] NSWSC 68
Mealey v Power [2015] NSWSC 1678
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National Exchange Pty Ltd (ACN 006 079 974) v Australian Securities & Investments Commission (2004) 61 IPR 420
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National Exchange Pty Ltd v Australian Securities and Investments Commission [2004] FCAFC 90
2 citations
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Cite 1 - [2004] FCAFC 90
Cite 2 - [2004] FCAFC 90
Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd's Rep 403
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Cite 2 - [1968] 2 Lloyd's Rep 403
Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191
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Cite 2 - (1982) 149 CLR 191
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 A.L.R 177
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Cite 1 - (1982) 42 A.L.R 177
Trade Practices Commission v Lamova Publishing Corporation Pty Ltd (1979) 42 FLR 60
1 citation
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Cite 1 - (1979) 42 FLR 60
Watson v Foxman (1995) 49 NSWLR 315
1 citation
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Cite 1 - (1995) 49 NSWLR 315

Cases Citing

Case NameFull CitationFrequency
Gobbert v Elders Rural Finance Services Ltd (No 2) [2017] QDC 2341 citation
1

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