Robertson Street Properties Pty Ltd v RPM Promotions Pty Ltd
[2005] QSC 95
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- Unreported Judgment
- Robertson Street Properties Pty Ltd v RPM Promotions Pty Ltd[2005] QSC 95
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Robertson Street Properties Pty Ltd v RPM Promotions Pty Ltd[2005] QSC 95
Robertson Street Properties Pty Ltd v RPM Promotions Pty Ltd[2005] QSC 95
SUPREME COURT OF QUEENSLAND
- Until 28 February 2003, the plaintiff in claim no. S3802 of 2003, Robertson Street Properties Pty Ltd (“Robertson Street Properties”), was the registered owner of freehold land comprising commercial and retail premises at 168 Robertson Street, Fortitude Valley, described as Lot 47 on RP 826289 County of Stanley, Parish of North Brisbane and contained in Title Reference 50174970 having an area of 1765 square metres (“the land”). Its directors were Paul McDonald, Stephen Bridge and Richard Fraser. Mr Fraser and Mr McDonald acted on behalf of Robertson Street Properties in the negotiations with respect to the sale of the land.
- The first defendant, RPM Promotions Pty Ltd (“RPM Promotions”) was the purchaser of the land. It is now in liquidation. The registered address of RPM Promotions is in Beenleigh. Its present director is the second defendant, Simon Mosley, who was appointed on 11 February 2003. Prior to that time its director was the fourth defendant, Mark Seabrook, who was a director of RPM Promotions from 24 December 2002 to 11 February 2003. The company was in receivership from 2 October 2003 to 21 May 2004. Liquidators from Korda Mentha were appointed on 18 December 2003 when the company ceased to be under administration. Its only shareholder at present is Mr Mosley. From 24 December 2002, RPM Promotions was the trustee of the RPM Trust. Its primary beneficiary was Mr Mosley. Mr Mosley’s present whereabouts are unknown although Mr Seabrook proffered in evidence that he had heard he was in Spain. The third defendant, Arlo Selby, is also unable to be located.
- The fifth defendant, Osier Pty Ltd (“Osier”) has its registered office at Aroona, a suburb of Caloundra, on the Sunshine Coast of Queensland. Its only shareholder is the sixth defendant, Leslie Wilson, who lives at the registered address of the company. Its only director is Colin Cullum who was appointed to that position on 7 May 2003. Mr Cullum’s address is given as Unit 213, 4 High Street, Toowong, a suburb of Brisbane. David Long, a solicitor employed by Tobin King Lateef, deposed that on 24 May 2003 he went to High Street Toowong but could not locate any building numbered “4”. It is safe to conclude that there is no such address.
- Consolidated with these proceedings was a claim by Osier against Robertson Street Properties (S2723 of 2003). This judgment deals with both matters. Unless otherwise indicated, however, references will be made to the claim and the parties in claim no. S3802 of 2003 which was the only contested matter. Osier did not appear at the hearing of claim no. S2723 of 2003. None of the defendants appeared to defend the plaintiff’s claim in S3802 of 2003 apart from the fourth defendant, Mark Seabrook. The claim against the first defendant was discontinued with the consent of the liquidator.
Contract for Sale of the Land
- Prior to 18 December 2002, the land owned by Robertson Street Properties was for sale and negotiations had been conducted with a number of potential purchasers.
- On 18 December 2002, a real estate agent brought another prospective purchaser to inspect the land. The real estate agent brought with him three people, one of whom was introduced as Arlo Selby, the third defendant, another as Simon Mosley, the second defendant, and a third person who was Robert Quass. Mr Fraser from Robertson Street Properties met them at 2.30pm in the front lobby of the building on the land. After an inspection of the building, Mr Fraser introduced Mr Selby to Mr McDonald and an employee of the plaintiff, Wayne Clarke. Mr Fraser explained to Mr Selby and Mr Mosley that the building was tenanted by Western Computers who owned their own fit-out in the building.
- An offer in the form of a draft contract and a draft deed of variation was delivered by Mr Selby and Mr Quass to Mr Fraser and Mr McDonald at 4.30pm on 24 December 2002 (the “24 December offer”). Prior to that time, Mr Fraser had informed Mr Selby that the selling price of the land was $4,500,000.00. The draft contract was in the form of an REIQ contract for the sale of commercial land and buildings. The purchaser was said to be S Mosley Pty Ltd as trustee for the RPM Group Trust. The purchase price was given as $7,950,000.00. Attached to it was a draft deed of variation where the contract price of $7,950,000.00 was said to be made up of $4,400,000.00 in “CASH” and $3,550,000.00 in “TRADE”. Item 8 of the Schedule to the draft deed of variation provided:
“The buyer has agreed to assist the seller to sell the trade dollars and undertakes to pay a minimum of $100,000.00 cash to the seller within 90 days of settlement of this contract by using Osier Pty Ltd ACN: 010 254 252 as the marketing agent.”
- The draft deed of variation was drawn up by Mark Seabrook who described himself, in an affidavit filed in this matter, as a business consultant known for his experience in the use of “trade dollars”. He said that Mr Mosley and Mr Selby sought his advice about “asset protection”; and that they instructed him to set up a structure in which they were both to have an interest and which protected one against the other from dealing with the assets of the trust, as it was intended that both parties be joint owners and additional projects were intended and contemplated. Mr Seabrook said he then caused RPM Promotions to be incorporated on 24 December 2002 with himself as a sole director and Graham Donnelly, chartered accountant, of Profit Power Accountants holding the shares. Mr Seabrook said that he was also retained by Mr Mosley and Mr Selby in his capacity as a business consultant to act as a “consulting director” of RPM Promotions. The consultancy agreement under which Mr Seabrook was retained by Mr Selby and Mr Mosley was in fact dated 1 January 2003. The consulting services were said to be:
“A.Engaged as Director of RPM PROMOTIONS PTY LTD ATF RPM TRUST under instructions from Simon and ArloFor the operation of the company. To comply and in accordance with the laws as Director of this company and only under written instructions for the principal.” [errors in original]
- The offer to purchase the land was rejected, partly because the plaintiff’s directors had never heard of “trade dollars” and partly because it included the assets of Western Computers which the plaintiff was not able or willing to sell at that price. Mr Fraser was concerned because he did not want an agreement containing “trade dollars” and because Mr Selby had cancelled a number of meetings which were to be held between himself and Mr Fraser and had specifically asked for the plaintiff’s solicitors to be excluded from any meeting. Mr Selby then told Mr Fraser that there were significant benefits for his group in using “trade dollars” and that Robertson Street Properties would receive the same amount as with a normal sale. Mr Selby said that the “trade dollars” would be sold to a “sister company”, Osier, and that Robertson Street Properties would receive $100,000.00 for the “trade dollars” with no cost to Robertson Street Properties. Mr Selby said to Mr Fraser that the arrangement about the “trade dollars” would be covered in the “side agreement” and that this way of doing the purchase had been accepted by the Australian Tax Office (“ATO”) and his group had done it before.
- Mr Selby told Mr Fraser that they normally used Mark Seabrook, the fourth defendant, as their solicitor when “trade dollars” were involved. On this occasion, he said, they would be using McCullough Robertson as one of their partners was available during the Christmas-New Year break. I interpolate that the reference to a respected firm of solicitors added an air of propriety to the negotiations by Mr Selby. Mr Selby told Mr Fraser to speak to Mr Seabrook as he knew all about “trade dollars” and how they worked and had done “trade dollar” deals for Mr Selby before. Mr Selby said that the use of “trade dollars” was a common practice in commercial real estate and that “it could all be validated.” Mr Fraser relied on what he was told by Mr Selby in particular that the “trade dollars” component was a form of consideration which suited the purchaser and that it would make no difference to the vendor; that there were no hidden costs to the vendor and it would, Mr Selby said, be the same from the vendor’s perspective, as receiving cash.
- Mr Fraser, as director of Robertson Street Properties, relied on these representations made by Mr Selby on behalf of the purchaser (the “Selby representations”), which meant that describing the consideration partly in “trade dollars” would not make any difference to the actual consideration received. The first offer made was according to these representations equal to $4,500,000.00. The Selby representations were committed in the course of commerce on behalf of a corporation. Mr Selby was knowingly concerned in that conduct which, as will be seen, was misleading and deceptive, and was one of the factors that induced the plaintiff to sell the land to the first respondent.
- On 6 January 2003, the plaintiff made a counter offer to Mr Selby which included a provision that the “trade dollar” component of the consideration would be exchanged for $100,000.00 in cash within 30 days of settlement. That offer was rejected.
- Mr Fraser made a number of attempts to contact Mr Seabrook at Compass Legal Solutions (“CLS”) as he had been told to do by Mr Selby and was finally able to speak to him about “trade dollars” on 7 January 2003. Mr Fraser raised with Mr Seabrook the three areas that he was most concerned about: was the use of “trade dollars” legal; were there any adverse tax implications; and would the vendor be receiving the same amount of money as it would if the consideration were wholly in Australian dollars? Mr Seabrook assured him that he need not have any concerns about any of these matters. Mr Seabrook said to Mr Fraser that the ATO valued one “trade dollar” the same as one Australian dollar; that provided the purchase and sale occurred within the same tax year, the profit from the sale of the building would be offset by the capital loss on the sale of the “trade dollars”; that he, Mark Seabrook, had an ATO ruling on the situation; and that the end result would be that the vendor would be in exactly the same position as selling the building for cash (the “first Seabrook representations”).
- Mr Seabrook omitted to tell Mr Fraser that there would be costs incurred by the plaintiff in any conversion of “trade dollars” to cash. This was a misrepresentation by silence (the "representation by silence”).
- Mr Seabrook denied that this conversation ever took place. That denial was deliberately deceitful. Mr Fraser, whose evidence was reliable, distinctly remembered this important conversation and was rightly shocked and insulted by the suggestion made to him in cross-examination that it had never taken place.
- Mr Fraser relied on what he was told by Mr Seabrook. Mr Fraser was asked in cross-examination what the statement by Mr Seabrook “that the end result of [the] use [of trade dollars] would be the same as selling the building for cash” meant to Mr Fraser. His reply was that:
“The statement meant to me exactly as it was put to Mr Seabrook where we were talking about the use of trade dollars that we would receive the same amount in cash no matter whether we used the trade dollars or not”.
The reason that Mr Fraser took this meaning was because it was the meaning Mr Seabrook intended to convey to him and did in fact convey.
- The ATO ruling referred to by Mr Seabrook, which must be IT 2668 published on 13 February 1992 concerning barter and counter-trade transactions, provided that in the case of business orientated counter-trade organisations, the ATO would deem the fair market value of each credit unit as equal to one Australian dollar unless it could be shown that the organisation’s units were being traded consistently at a different value. The qualification is significant. The representation made by Mr Seabrook did not include this important qualification and was, therefore, misleading.
- Even more significant was the representation made by Mr Seabrook that the end result would be exactly the same as selling the building for cash. That was quite untrue. In general, the value of cash is certain; the same cannot be said of “trade dollars” whose value depends on whether they can be sold or traded at all and if so, at what price. In this particular case, it was not the same as selling the land or the building for cash because the “trade dollars” had to be extracted from the Ozecard Trade Exchange (“Ozecard”) before they could be exchanged for cash. Further, Mr Seabrook must have known Ozecard would charge significant fees for the exchange. He deliberately omitted to tell Mr Fraser that important piece of information.
- Misleading and deceptive conduct, in trade or commence, by corporations is prohibited by s 52 of the Trade Practices Act 1974 (TPA). Pursuant to s 75B of the TPA, a person who is knowingly concerned in the prohibited conduct is also liable. The misleading and deceptive conduct consisted of the first Seabrook representations and the representation by silence. That conduct occurred in the course of commerce. That conduct was committed on behalf of the first plaintiff, a corporation, and was misleading and deceptive. The fourth defendant was knowingly concerned in that conduct.
- The fourth defendant argued that his statements could not be considered to be representations for the purposes of s 52 of the TPA, as their meaning depended on so many variable subjective and objective factors.[1] The type of statement which has been held not to be a representation is found in exhortations such as “The best value health cover you could buy!”[2] and “If you don’t get Collier to build your home you won’t be getting the best deal.”[3] This was not such a case. In this case their meaning was reasonably clear. It did not amount to a mere commendation by Mr Seabrook but representations upon which Mr Fraser could rely. The statement by Mr Seabrook to Mr Fraser that the end result would be exactly the same as selling the building for cash was a statement which was sufficiently precise to constitute a representation particularly as the offers and counter-offers in this case always concerned a particular number of “trade dollars” to be exchanged for a precise amount of currency. Nor were the statements made by Mr Seabrook likely merely to engender uncertainty. Indeed they were intended to engender certainty and were, to use the words of Morling J in HCF v Switzerland Australia Health Fund Pty Ltd[4] “likely to lead [the plaintiff] into error.” These representations were likely to mislead and deceive as there was a real and not a remote chance that they would have that effect.[5]
- It is irrelevant that the plaintiff had a solicitor advising it in this transaction. A reasonably competent solicitor could not be expected to know that a person who purported to have experience of, and thus some expertise in, “trade dollars” would make an untrue or misleading representation about them. In any event, Mr King, the plaintiff’s solicitor, did what he could to satisfy himself by speaking to Mr Scheck, the partner at McCullough Robertson referred to earlier and then Mr Seabrook. Those discussions will be referred to in more detail later in these reasons for judgment. The fact that the plaintiff had retained a reasonably competent solicitor did not save the fourth defendant’s representations from being misleading and deceptive.
- The fourth defendant relied in his submissions on a conversation pleaded by Osier in Claim no. S2723 of 2003 in which Osier was the plaintiff and Robertson Street Properties the defendant and which was consolidated with this matter. That conversation was alleged to have taken place on 15 January 2003 between Mr Quass for Osier, Mr Selby for RPM Promotions, and Mr McDonald and Mr Fraser for Robertson Street Properties. The conversation was not specifically denied in the defence of claim no S2723 of 2003 and therefore pursuant to r 166 of the Uniform Civil Procedure Rules is taken to have been admitted by the defendant in that action. The conversation is therefore admitted by Robertson Street Properties against Osier but not necessarily against any of the other parties including the fourth defendant. During the conversation Mr Selby said to Mr Fraser and Mr McDonald that the “trade dollars” would need to be registered for sale and the trade exchange would charge fees for this. The fourth defendant submitted that this statement by Mr Selby was one of the reasons that the meaning of the statements made by Mr Seabrook was not that the plaintiff would receive $4,750,000.00 in Australian dollars after “cash conversion” of the trade dollars.
- There are two problems with this submission – firstly, it is not in my view an admission in the case of Robertson Street Properties against Mr Seabrook. The conversation was not pleaded in the action between Robertson Street Properties and Seabrook and so was not a fact in issue. The second problem is that the conversation pleaded in the Osier statement of claim, taken as a whole, goes on to suggest that Mr Quass on behalf of Osier, guaranteed, in Mr Selby’s presence, that Robertson Street Properties would receive $750,000.00 for the sale of the “trade dollars” and Mr Fraser and Mr McDonald agreed to enter into the land sale contract after this representation was made. There was no conversation which would have led Mr Fraser and Mr McDonald to form the view that the $750,000.00 was not the net figure that would be received for the sale of the “trade dollars” but rather some lesser figure once fees were deducted. This was never put to them at the trial and their evidence, which I accept, was at all times inconsistent with their having formed such a view.
- Mr Seabrook’s silence about fees amounted to a representation that there were no costs incurred in the “trade dollars” or in the conversion of the “trade dollars” to Australian dollars. Silence on this issue, considered in the context of what was said, was conduct likely to mislead or deceive. There is, of course, no general duty to disclose in commercial dealings. The question is whether there was conduct which was likely to mislead or deceive. The test is that set out by Gummow J in Demagogue Pty Ltd v Ramensky:[6]
“… consistently with regard to the natural meaning of the terms of s 52, the question is whether in the light of all relevant circumstances constituted by acts, omissions, statements or silence, there has been conduct which is or is likely to be misleading or deceptive.”
Where a statement is made which is misleading and deceptive, the omission to make another statement which would show that the statement which was made was misleading, can itself constitute misleading and deceptive conduct. In this case the failure to disclose that fees would be payable which would lessen the amount received by the plaintiff was misleading and deceptive.
- On 9 January 2003, another version of the contract and deed of variation were presented by Mr Selby to Mr Fraser and Mr McDonald. The purchaser was said to be “S Mosley Pty Ltd as Trustee for the” [sic]. The purchaser’s solicitor was shown as CLS and the email address as [email protected]. The initials MLS in that email address refer to the fourth defendant, Mark Seabrook. Mr Fraser accepted that Mr Seabrook was a solicitor because of what he had been told by Mr Selby. The email address given on the land sale contract was consistent with his being a solicitor. In fact Mr Seabrook is not a solicitor.
- Included in the chattels for sale were Western Computer’s fixed assets which could not be sold by the plaintiff. The sale price was said to be $6,950,000.00. There was an attached deed of variation which showed the parties as Robertson Street Properties and S Mosley Pty Ltd as trustee for the Metroplex Property Trust. The contract price was shown as being made up of $4,000,000.00 in “CASH” and $2,950,000.00 in “TRADE”. In this draft deed of variation, Item 8 provided that:
“Osier Pty Ltd ACN 010 254 252 as the marketing agent has undertaken to dispose of the trade dollars for a cash minimum of $500,000.00 to be paid to the seller within 45 days of settlement of this contract.”
- Bede King, managing partner of the firm Tobin King Lateef, who acted on behalf of Robertson Street Properties, was concerned about the prospect that part of the consideration was to be in “trade dollars”. He was not familiar with “trade dollars” and wished to allay concerns about whether their use would create problems for his client. As Mr King told his clients, he was not himself able to give his clients any advice about “trade dollars”. Mr King spoke to Mr Scheck, the solicitor at McCullough Robertson, but he was no longer acting for the purchaser in this transaction and had not had any involvement in a transaction involving “trade dollars”.
- For several days, Mr King tried to contact Mr Seabrook as his name had been then given to him by Mr Fraser and Mr McDonald as the person to talk to at the purchaser’s solicitors’ office in relation to questions concerning the ATO position and the use of “trade dollars”. Mr Seabrook swore that a telephone conversation took place between himself and Mr King on 12 January 2003 but accepted that he was wrong and that the conversation took place on 13 January 2003, as sworn to by Mr King. Mr Seabrook rather disingenuously said in evidence that this was a typing error.
- Mr King’s evidence as to the contents of the telephone conversation is also to be preferred over that of Mr Seabrook. Unlike Mr Seabrook, Mr King took and kept careful notes of the conversation. Mr Seabrook wrote some notes on an email sent internally within CLS to Mr Seabrook on 13 January 2003, asking him to call Mr King. These notes are undated. The handwriting records:
“Please discuss issues and
amendments will have all completed
by Tomorrow send to JG.
10 mins
Get Tax ruling
See me
re this
Mark!”
- Mr Seabrook said in evidence that the notes said “GST tax ruling” but I do not accept his evidence on that point. It is not consistent with either version of the telephone conversation. He did not give any evidence as to precisely when these notes were made. When asked in re-examination whether he had a standard practice as to when he made a note of a telephone conversation, he said he did not. Mr King confirmed the matters which were discussed in this telephone conversation in a letter on the following day. He was also forthright and honest in his evidence. In this respect also, he was unlike Mr Seabrook.
- Mr Seabrook said that he told Mr King that he was a consultant director of RPM Promotions, not a solicitor, and that John Gould of Compass Legal Solutions was the solicitor for the company. Mr Seabrook said that he indicated to Mr King that he could obtain for him a copy of the income tax ruling from his accountant, Graham Donnelly. Mr Seabrook told Mr King that his family trust had purchased 24 properties at that time using cash and “trade dollars” and that one “trade dollar” was equal to a dollar as far as the tax department was concerned and the same applied to stamp duty. Mr Seabrook said he told Mr King that he would get a copy of the information for him from his accountant as soon as he could. Mr Seabrook said he had contacted Mr Donnelly whom he believed forwarded by fax the tax ruling to Robertson Street Properties and its solicitor.
- What in fact occurred is found in the affidavit evidence of Mr King. Mr King had left a number of messages for Mr Seabrook at CLS, the solicitors acting for the purchaser. He finally spoke to Mr Seabrook at 4.17pm on 13 January 2003. Mr King told Mr Seabrook that he had been given his name to contact to supply the ATO ruling in relation to “trade dollars”. Mr Seabrook told him that he would arrange for the material relating to the ATO rulings to be sent to Mr King. Mr King specifically asked Mr Seabrook for him to arrange the material to be sent to him as he wanted to receive it from him as a solicitor for the purchaser. Mr Seabrook told Mr King that an accountant, whom he referred to as Graham, had considerable knowledge on the subject. Mr King could not recall Mr Seabrook’s referring to the accountant’s surname. Mr Seabrook did not inform Mr King that he was a consultant director of RPM Promotions; nor that he was not a solicitor; nor that John Gould was the solicitor for the purchaser; nor that Mr Seabrook had a family trust nor that it or he had purchased any properties, although he did say that he had acted for clients who had used “trade dollars” in such purchases.
- Mr Seabrook said that he asked Mr King if there were any further changes to the “contract and fourth deed of variation” and asked Mr King “to forward a copy of the contract and deed of variations to RPM Promotions’ solicitor, John Gould”. I accept the evidence of Mr King that those words were not said. Mr Seabrook told Mr King that RPM Promotions as Trustee for the RPM Trust would be the purchaser and that a guarantee would be provided by Mr Mosley in support of the purchaser. Mr King informed Mr Seabrook that the property would be sold as a “going concern” so that it could be treated in that manner for GST purposes.
- On 14 January 2003, Mr King sent a fax to Mr Seabrook at CLS, referring to their telephone conversation on the previous day, covering the various matters discussed in that conversation.
- No tax ruling was ever in fact supplied to Mr King by Mr Seabrook. Instead he provided a letter from the accounting firm, Profit Power, to which I shall refer later.
- Various offers and counter offers were made. Finally an offer was made on the basis that the consideration was $4,750,000.00. On 15 January 2003, Mr Wilson, describing himself as managing director, on behalf of himself and of Osier, gave the plaintiff a written undertaking (the “ Osier undertaking”) to pay $750,000.00 to the vendor in the following terms:
“We hereby confirm that our company will act as the marketing agent to cash convert the trade dollars paid on the above property.
I hereby irrevocably undertake and guarantee both personal and in the capacity of the managing director of Osier Pty Ltd to pay AUD$750,000 to the seller’s nominated solicitors trust account on completion of settlement the amount of $250,000. A further $250,000 within 30 days after settlement and final payment of $250,000 within 45 days after settlement.”
- On 16 January 2003, CLS sent copies of the land sale contract and the deed of variation, both in duplicate, executed by Mr Seabrook on behalf of the purchaser which was shown as “RPM Promotions Pty Ltd ACN 103 249 118 as Trustee” to Tobin King Lateef. CLS also enclosed a copy of a letter “from Profit Power Accountants in relation to the ATO rulings concerning to trade dollars, for your information.” Profit Power has the same address as CLS (as does Ozecard).
- The letter from Profit Power (the “Profit Power letter”) was addressed to Mr Seabrook at RPM Promotions and was dated 14 January 2003. It was written by Mr Donnelly, who, according to the evidence of Mr Seabrook, then held the shares in RPM Promotions. The Profit Power letter did not disclose the roles played by Mr Seabrook, as director, and Mr Donnelly, as shareholder, in RPM Promotions. It said that Profit Power had not been shown any of the contractual documentation but had based their advice to Mr Seabrook that there would be no adverse capital gains impact on the information provided to Profit Power. They recorded that they had been advised “that the trade dollars would be converted to cash for $750,000.” This was consistent with the information given to the plaintiff and provided further comfort to Mr Fraser and Mr McDonald that what they had been told by those representing the first defendants was true, that is that the “trade dollar” component in the land sale contract was the equivalent of $750,000.00 cash. The representation, as Mr Fraser said in his evidence, made by Mr Selby and confirmed by Mr Seabrook was that the plaintiff would receive $750,000.00 “unencumbered” ie without any further cost to the plaintiff. The use of “trade dollars” was to suit the purchaser and would not, it was represented, disadvantage the plaintiff in any way. No mention was made by anyone of there being a cost to convert from “trade dollars” to cash.
- The repetition of this information, sourced from Mr Seabrook, in the Profit Power letter which Mr Seabrook then caused to be passed on to the vendor, was a further representation by Mr Seabrook which was relied upon by the vendor (the “second Seabrook representation”). In so far as it and the earlier representations were representations as to future matters, there were no reasonable grounds for making the representations. In so far as the representations were as to present matters they were false. Mr Seabrook’s knowledge of Ozecard “trade dollars” together with the wording of the deed of variation, meant that he must have well known that there would be a conversion cost involved which the plaintiff would have to bear and that this would reduce the net amount of cash received by the plaintiff.
- Mr Seabrook gave evidence that he rang Mr McDonald at 2.20pm on 16 January 2003 after Mr McDonald had telephoned the offices of CLS wanting to speak to Mr Seabrook about the contract. Mr Seabrook had received a message that Mr McDonald had the real estate agent with him and wished to speak to Mr Seabrook urgently. I am satisfied that this occurred and that Mr Seabrook returned the call. However the notes supposedly made by Mr Seabrook during or after the call, he could not remember which, were inaccurate and self serving. They say:
“I was a director of RPM as trustee and he asked about some changes his lawyer had asked. I said email the changes and I will get advice from our solicitor John Gould.”
- In my view that inaccurate and self-serving note was placed on the printout of the email at some much later date, probably to assist Mr Seabrook in this litigation.
- Mr McDonald and Mr Seabrook did discuss changes to the draft deed of variation. As a result, at 4.34pm on Thursday 16 January, Mr McDonald sent an email to Mr Seabrook, Mr King, Mr Fraser and the real estate agent attaching a copy of the contract with special condition number four changed as a result of a request of Mr Seabrook which had been confirmed by Mr King. At 4.56pm Mr Seabrook replied to Mr McDonald with what he described as a small change although he does not say to which document. At 5.16pm Mr McDonald emailed back to Mr Seabrook saying that he was happy with the final wording.
- On 17 January 2003, the plaintiff agreed to sell the land to the first defendant. In making that agreement, the directors of the plaintiff relied on representations by the purchaser and those acting on its behalf, Mr Mosley, Mr Selby and Mr Seabrook, that the true consideration for the contract was $4,750,000.00 (“the contract representation”). They also relied on the Selby representations, the first and second Seabrook representations and the representation by silence earlier referred to about “trade dollars”. Each of these representations was part of the inducement for the plaintiff to enter into the land sale contract and the deed of variation.
- The contract was in the form of a standard REIQ contract for the Sale of Commercial Land and Buildings (the “land sale contract”). The purchaser was shown as RPM Promotions as trustee, with the purchaser’s solicitor as CLS. The email address of the purchaser’s solicitor was shown as [email protected]. The vendor’s solicitors were Tobin King Lateef. The purchase price was shown as $6,950,000.00 with a deposit of $50,000.00 to be paid within three days from the date of contract. The date for completion is shown as 28 February 2003. The contract was said to be subject to finance within 21 days from the date of contract. The individual who signed for the purchaser was the fourth defendant, Mr Seabrook. There were three tenancies to which the property was subject.
- Attached to the land sale contract was a document entitled Deed of Variation Contract of Sale between Robertson Street Properties and RPM Promotions (“Deed of Variation”). It was signed by Mr Seabrook on behalf of RPM Promotions but was undated.
- Clause 2.2 of the Deed of Variation provided that:
“The Seller has agreed to accept payment of the Contract Price in the following manner:
- The amount referred to in item 5 is to be paid by the buyer to the seller by way of cash or Trade Dollars on the date nominated in item 7: and
- The amount referred to in item 6 on the settlement date.”
The contract price was found in item 4 of the Schedule to the Deed of Variation and was $6,950,000.00. The amount referred to in item 5 for the purposes of clause 2.2(a) of the contract was said in the Schedule to be:
| “(A) | CASH | $4,000,000.00 |
| (B) | TRADE | $2,950,000.00 |
| TOTAL | $6,950,000.00” |
The date nominated in item 7 was the settlement date of the contract.
- The Schedule to the Deed of Variation also contained “Item 8”. All of the other enumerated items in the Schedule were incorporated by reference in the body of the Deed of Variation. This was not the case with Item 8 of the Schedule which, unlike the other items in the Schedule, itself contained a substantive clause (the “contractual undertaking”). It was as follows:
“Item 8 – OSIER PTY LTD A.C.N: 010 254 252 as the marketing agent has Undertaken and guaranteed to cash convert the trade dollars on behalf of the seller for a cash minimum of $750,000. Of which $250,000-00 to be paid into the seller’s solicitors trust account at settlement, $250,000-00 within 30 days and the balance within 45days of settlement.”
The errors are in the original.
- “Trade dollars” were defined in clause 1.2(g) of the definitions to mean “the Trade Dollars capable of being Traded on any Registered Trade Exchange with ONE TRADE DOLLAR having an equal value to ONE DOLLAR IN AUSTRALIAN CURRENCY”. There is not, as far as I am able to determine, any registered “trade exchange” on which “trade dollars” can be traded. There was certainly no registered trade exchange on which these “trade dollars” could be traded.
- “Trade dollars”[7] are not Australian currency. They are a form of credit. Concerns have been expressed by many courts and tribunals in cases concerning the use of “trade dollars”.[8] These concerns may suggest that the use of “trade dollars” in counter-trade transactions is insufficiently or ineffectively regulated. It is not possible to comment on their use in general but the circumstances of this case suggest that they are ripe for misuse by the unscrupulous.
- Clause 10 of the Deed of Variation is an “entire contract” clause which the fourth defendant submitted excluded reliance on any representations made. Such a clause however does not necessarily neutralise the effect of misleading and deceptive conduct. Whether or not it does so is a question of fact. The question is whether the exclusion clause has broken the nexus between the misleading and deceptive conduct and the loss suffered. As the Full Court of the Federal Court observed in Sutton v A J Thompson Pty Ltd (in liq):[9]
“… if a person is so determined to enter into a contract that he is not in truth influenced by some false representation made to him, he clearly has no case.”
- This is far from the situation in the present case. The directors of the plaintiff were very cautious about entering into any agreement involving “trade dollars” and only did so as a result of the misleading and deceptive conduct referred to. As Sheppard J held in Clark Equipment Australia Ltd v Covcat Pty Ltd:[10]
“[T]he remedy conferred by s 52 of the Trade Practices Act will not be lost whatever the parties may provide in their agreement. If a vendor of goods has engaged in misleading and deceptive conduct, the law makes that person accountable for loss and damage suffered as a result of the unlawful conduct. That conduct will usually have been committed, as in this case, prior to the signing of any contract. If, as a result of the conduct, a person is induced to enter into a contract and suffers loss, an action to recover it lies. The terms of the contract are irrelevant.”
The same principle applies where it is the purchaser who has engaged in misleading and deceptive conduct about the consideration to be paid. In the circumstances of this case, the “entire agreement” clause is irrelevant to the question of liability under s 52 of the TPA.
What happened between contract and settlement
- On 11 February 2003, Mr Seabrook resigned as director of RPM Promotions and Mr Mosley was appointed. On 19 February 2003, a letter was sent apparently by Mr Kontos of Ozecard confirming that Mr Mosley from RPM Promotions had instructed Ozecard to hold the amount of three million “trade dollars” for settlement of the properties he was purchasing. In the letter the “trade dollars” are described as “T$3,000,000:00 trade dollars”. The use of capital T before the dollar sign is consistent with the misleading suggestion that they are in fact currency of some type which they are not. This letter purported to say that funds would be held in escrow and released upon a written authority from Mr Gould. Mr Seabrook sought to explain this letter, which was not signed by Mr Kontos, by the following paragraphs in his affidavit:
“On the 19th February 2003 John Gould Solicitor of Compass Legal Solutions gave me a faxed letter from Lillyville Group Pty Ltd (trading as Ozecard Trade Exchange) confirming that Simon Mosley had instructed them to hold $3,000,000.00 in trade dollars for settlement of property he is purchasing. [The letter referred to is exhibited to his affidavit].
On the 19th February 2004 I received a phone call from Mosley who said he wanted evidence of the transfer from Compass Legal Solutions to Tobin King Lateef Solicitors trust account. He gave me details of where he wanted these documents sent and I forwarded that information to RPM Promotions’ solicitor John Gould of Compass Legal Solutions.”
- The affidavit provides no further information as to what Mr Seabrook sent to Mr Gould, if anything. In view of the inconsistency between the letter supposedly sent by Mr Kontos on 19 February 2003 and one sent by Mr Kontos immediately after settlement to which I will refer later, I am left in some doubt that the letter of 19 February 2003 was written or authorised by Mr Kontos at all. No other evidence was led on this point so I refrain from making a finding on that matter.
- On 26 February 2003 CLS sent an Ozecard membership application to the vendor’s solicitor for the vendor to complete and return to Ozecard. The covering letter and the membership application form indicated that the membership joining fee had been waived. Mr McDonald and Mr Fraser signed the membership application form on 27 February 2003. They did not read its contents as they relied on what they had been told by Mr Selby and Mr Seabrook and, relying on the Selby representations and the first and second Seabrook representations and the representation by silence, comforted by the removal of the membership fee and the Osier undertaking, believed that there was no financial cost to Robertson Street Properties of any transaction involving “trade dollars”.
- Mr King read the document and discussed the question of fees and expenses. The directors of the plaintiff told Mr King that they were satisfied that Robertson Street Properties would not have to pay any such fees and expenses because of the representations made to them.
- In the part of the document which is entitled “OFFICE USE ONLY” against brokerage is recorded the initials MLS and the date 24 February 2003. This strongly suggests that Mr Seabrook received commission on this transaction in spite of his adamant denial of that. In another disingenuous explanation he said in his affidavit “I believe the reference to MLS is simply one of convenience inserted by the trade exchange operator, who is known to me, as I am a regular consumer of trade dollars.”
- The land sale contract contained a special condition which was in the following terms:
“4. Simon Mosley as beneficiary for the RPM trust shall provide at date of contract becoming unconditional a guarantee and indemnity in favour of the vendor to perform the terms of this contract, such guarantee to contain terms and conditions to the absolute satisfaction of the vendor.”
A draft guarantee of performance was sent by CLS by letter dated 14 February 2003 (“CLS guarantee of performance”) to the vendor’s solicitor for their approval. It appears the letter of 14 February 2003 and the draft guarantee of performance were emailed by Mr Gould to Mr Long at 4.57pm on Friday 21 February 2003. No guarantee was sought from or provided by Mr Seabrook. This is one of the reasons that Mr King can be certain Mr Seabrook did not disclose that he was not a solicitor for the purchaser but was in fact its director. If Mr Seabrook had told Mr King that information then Mr King would have sought instructions from his client as to whether a guarantee should have been obtained from Mr Seabrook.
- On Wednesday 26 February, Mr Long sent a draft guarantee of performance acceptable to the vendor (“RPM guarantee of performance”) to CLS for execution by Mr Mosley. The CLS guarantee of performance was not regarded as satisfactory by the vendor’s solicitors.
- On 27 February 2003, Mr Long requested Mr Gould to provide an executed copy of the RPM guarantee of performance by facsimile before the settlement on the following day. Mr Mosley executed a guarantee of performance on 27 February 2003 but it was not in the form requested by the vendor. It was in the form of the CLS guarantee of performance except that the default rate of 10.5 per cent per annum was said to have been intentionally deleted. CLS sent a letter to the vendor’s solicitors purporting to explain Mr Mosley’s reasons for not signing the RPM guarantee of performance. They also said that a deed of guarantee was unnecessary. On 28 February 2003, by letter to CLS, the vendor’s solicitor insisted on execution of the RPM guarantee of performance.
Settlement Day
- Settlement of the sale of the land occurred at approximately 3.30pm on Friday 28 February 2003. Mr Mosley did not provide an executed guarantee in the form of the RPM guarantee of performance as required by the vendor. In accepting the moneys at settlement, the vendor’s solicitor made clear that the vendor did not waive the purchaser’s contractual duty to provide a guarantee of performance in terms satisfactory to the vendor. That has never been provided. Nevertheless the second defendant, Mr Mosley, remains bound by the terms of the guarantee of performance he did execute which guarantees payment of the purchase price by the purchaser under the agreement, which is defined as the land sale contract, the deed of variation and the Osier undertaking.
- At the settlement the plaintiff received a cheque for approximately $4,000,000.00, the first payment of $250,000.00 for the “trade dollars” and “Ozecard vouchers” for 2,950,000.00 “trade dollars”.
- At 4.02pm on that date Richard Kontos, a director of Ozecard, wrote to Tobin King Lateef. The letter informed them that an Ozecard account had been opened in the name of Robertson Street Properties and that a voucher for 2,950,000.00 “trade dollars” from RPM Promotions as trustee for the RPM Trust was to be placed into the account of Robertson Street Properties. Mr Kontos said that, “These funds will be deposited into your clients account [ie of Robertson Street Properties] immediately upon receipt of the trade cash fees of $295,000.00 has been paid to Ozecard Trade Exchange.” The grammatical errors are found in the original.
- Just over an hour and a half later, at 5.38pm on the same date, the sixth defendant, Leslie Wilson, as managing director of the fifth defendant, Osier, wrote to Tobin King Lateef, the solicitors for Robertson Street Properties, saying that Osier had deposited $250,000.00 into the solicitors’ trust account as per their agreement with Robertson Street Properties. The letter continued:
“We hereby demand these funds are not released to Robertson Street Properties Pty Limited until such time as these trade dollars, namely T$2.95 million are available to be cash converted fees paid by my company [sic].
Please advise in writing when these fees have been paid to Ozecard, so we can continue to honor [sic] our agreement with your client.”
The letter went on to state that time was of the essence.
- Mr Long of Tobin King Lateef deposed that the material contained in the letter from Osier was plainly wrong because there had never been any mention that the payment of $250,000.00 would be subject to any trust on behalf of Osier; no settlement would have taken place had that condition been imposed; the payment of $250,000.00 was made by Citibank, the financier of RPM Promotion’s purchase from Robertson Street Properties and not by Osier who did not attend settlement; no amount of $250,000.00 was ever received from Osier; and it was not open to Osier to unilaterally make time of the essence. Mr Long is correct in these respects – Osier could not unilaterally impose a trust over the money after payment not subject to any such trust. It was not open to Osier to unilaterally make time of the essence. Osier remained bound by the obligations found in its undertaking and the contractual undertaking to pay $250,000.00 on settlement (as it had done or RPM Promotions had done on its behalf), $250,000.00 within 30 days of settlement and the balance [of not less than $250,000.00] within 45 days of settlement.
Post-Settlement
- On 3 March 2003, Mr Wilson, on behalf of Osier, wrote to Mr Long at Tobin King Lateef saying that he had contacted Ozecard that morning who had advised that they would not allow him to use the 2,950,000 “trade dollars” until the fees were paid in full. He continued:
“Under my agreement with Robertson Street Properties Pty Ltd that the trade dollars become available on settlement of the sale of the property.
I have some interested parties to move these dollars and require the unencumbered total amount to be available by close of business Tuesday the 4th March 2003.
Should this not be completed by this time I reserve my rights to cancel the agreement and request a refund of my money held in your trust paid on the 28th February 2003 of $250,000.00.”
- The grammatical errors in this and other letters from Osier make their precise meaning very difficult to detect. In addition, as Mr Long observed, the telephone and fax numbers on the letterhead (which are both the same, +61 7 33196142), were not consistent with the Caloundra address. Mr Long prepared a letter in reply by facsimile transmission but was unable to send it because the fax number given in Osier’s letter could not be used to transmit a facsimile.
- Mr Long then wrote to Mr Gould of CLS on 4 March 2003, the person and the firm acting for the purchaser noted in the land sale contract. Mr Long wrote again on 5 March 2003. His suspicions about the purchaser can hardly have been diminished when he received a reply dated 27 February 2003, faxed on 5 March 2003 saying, inter alia, “in the interests of further inflaming hostilities we feel obliged to point out … .” I presume that wording was in error.
- The letterhead of CLS listed them as “Lawyers, Mediators and Legal Services.” Their personnel were listed on the left hand side of their letterhead as “MEDIATOR Mark Seabrook LEGAL SERVICES John Gould Joanne Brooks CONVEYANCING Lynne Morrissey ADMINISTRATION Joan Webb Jody Horner Britt Seabrook.” I have already noted that Mr Seabrook is not, and never has been, a legal practitioner. He is described on the letterhead as a “mediator”. He does not however appear to act as a mediator. The letterhead of CLS appears therefore to have been calculated to deceive. In the affidavit which constituted his evidence in chief, Mr Seabrook said he was retained on contract to act as the practice manager of CLS. He also acted as a “business consultant” because of his “experience with ‘trade dollars’” and set up “asset protection structures.”
- By letter dated 5 March 2003, Mr Kontos of Ozecard wrote to Tobin King Lateef to “clarify” his letter of 28 February 2003. He said that his letter of 28 February should not have included a demand for payment of fees of $295,000.00 before the “Trade dollars” would be deposited into the plaintiff’s account. He said that RPM Promotions had paid the transaction fees on the deposit of the “Trade dollars” into the plaintiff’s account. He then stated:
“It is a fact that transaction fees are payable only by the party disposing of the Trade dollars in line with the terms and conditions of use of this Trade Exchange, and then only if the amount is in excess of $T500 at any one time …
Your client signed the membership application which clearly sets out the transaction fees plus GST which are payable in cash together with other fees. We presume that each applicant peruses and understands the document prior to signing it.
Therefore in accordance with our standard terms and conditions your client will be liable for transaction fees of $295,000.00 in cash over the period it takes to transact the trade dollars.”
- Mr Kontos’s letter is not entirely correct. It is true that the plaintiff, by its directors, signed the membership application form. The plaintiff is bound by this document notwithstanding that its directors signed it without reading it. The application contained a clause stating, inter alia:
“I agree to pay fees on the following basis:
…
- Transaction fee equivalent to 10% per transaction plus GST payable monthly in cash;”
The meaning of this clause is far from obvious. Presumably, it means that if there is a transaction by the account holder, he or she is obliged to pay a 10 per cent fee in cash to Ozecard. The 10 per cent fee, as it is payable in cash, is presumably calculated on the cash value of the transaction. In this case, had the transaction proceeded and the 2,950,000 “trade dollars” been sold or exchanged for the $500,000.00 in cash which was still owing then Robertson Street Properties would have been obliged to pay $50,000.00 to Ozecard. The plaintiff was never liable to pay Ozecard $295,000.00 in cash as demanded. The terms set out in the membership application form did not suggest that fees were payable in advance of any transaction.
- The facsimile header on the letter from Mr Kontos purports to show that it was sent by facsimile transmission at 5.41pm on 4 March 2001, a date which is clearly incorrect. I accept Mr Long’s evidence that he must have received it on 5 March 2003.
- By letter dated 6 March 2003, Mr Wilson wrote to the directors of the plaintiff company, as managing director of Osier. This letter was hand delivered by Mr Wilson and another man, Colin Townsend, at 3.15pm on 6 March 2003. A copy was sent to Mr Long. A facsimile header at the top of the letter shows the time and date of 19:12 on 12/02/03, another clearly incorrect date. The telephone and facsimile numbers on the letterhead were changed to +61 415795250 and +61 732567718 respectively. It said:
“RE: CASH CONVERSION OF TRADE DOLLARS
As you are aware my company offered to cash convert the trade dollars paid to you by RPM Promotions Pty Ltd and in good faith we deposited into your solicitors trust account $250,000-00 on settlement of the sale of building so this could take place.
I have sent two letters to your solicitor to advise the release of the trade dollars was urgent as we had a buyer for the trade dollars at 32 cents.
You have failed to make these Trade dollars available by not paying your fees to Ozecard for the release of the trade dollars. We have now lost his opportunity of conversion as agreed.
We now demand you refund the deposit paid to your solicitors trust account and we reserve our rights to the lost income.
Please advise your solicitor we will pick our cheque made out to my company tomorrow at 10-00am.
Should you still require us to assist in moving these trade dollars we are happy to do so but not on the tight schedule originally agreed.
We require the trade dollar funds available to be used in full before this can be attempted.
Should the funds held by your solicitor not be available at their office by the time stated we will Institute legal proceedings against your solicitors for its recovery plus costs and lost opportunity.
I trust this is not necessary and we are able to complete a transaction in the future on terms suitable to both parties.”
The errors are in the original.
- In spite of the statement by Mr Wilson that he would pick [sic] “our cheque made out to my company tomorrow at 10-00am”, he did not attend to do so.
- On 10 March 2003, solicitors for Osier purported to terminate Osier’s agreement with the plaintiff and demanded the return of the $250,000.00. There was, however, no representation made, either orally or in writing, prior to or at settlement that the payment was made subject to any conditions or to be held on any particular trusts. It was not held on trust.
- In the result, the plaintiff has received $500,000.00 less than the amount that was promised to it in the land sale contract and the Deed of Variation. The plaintiff did not receive $500,000.00 of the $750,000.00 promised to it in the Deed of Variation in exchange for the “trade dollars”. This was in breach of contract. The voucher received at settlement was not “trade dollars” as defined in the Deed of Variation. They were not capable of being traded on any registered trade exchange and they did not have a value equal to one dollar in Australian currency.
- The second defendant is liable under the guarantee to indemnify the plaintiff for the purchaser’s failure to perform the contract. This liability is in the amount of $500,000.00.
- The fifth defendant is liable under the offer made in the Osier undertaking and the contractual undertaking and the sixth defendant is liable under the offer contained in the Osier undertaking which were accepted by the plaintiff when its directors signed the Land Sale Contract and the Deed of Variation (the “Osier agreement”). The Osier agreement was wrongfully repudiated by Osier by the letter from its solicitors of 10 March 2003. That liability is in the sum of $500,000.00.
- Mr Seabrook is liable under the TPA for his misleading and deceptive conduct consisting of the first and second Seabrook representations and the representation by silence. Mr Selby is also liable under the TPA for his misleading and deceptive conduct consisting of the Selby representations. The plaintiff is entitled to damages for its loss pursuant to s 82 of the TPA. The loss suffered by Robertson Street Properties was the amount of $500,000.00 and that is the amount of damages which the fourth defendant and the third defendant should be ordered to pay to the plaintiff.
- Judgment should be entered for the plaintiff in S3802 of 2003. Each of the second, third, fourth, fifth and sixth defendants in S3802 of 2003 is ordered to pay $500,000.00 damages to the plaintiff, Robertson Street Properties. Judgment should be entered for the defendant, Robertson Street Properties, in S2723 of 2003. I will hear submissions as to the form of the order, interest and costs.
Footnotes
[1] HCF v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483 at 491; Collier Constructions Pty Ltd v Foskett (1990) 97 ALR 460 at 471.
[2] HCF v Switzerland Australia Health Fund Pty Ltd (1987) 78 ALR 483.
[3] Collier Constructions Pty Ltd v Foskett (supra).
[4] (supra) at 489.
[5] Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 at 87; 55 ALR 25 at 30; HCF v Switzerland Australia Health Fund Pty Ltd (supra) at 489.
[6] (1992) 39 FCR 31 at 41; (1992) 110 ALR 608 at 618
[7] It may well be that the use of such a term particularly in form “T$” is prohibited by s 9 of the Currency Act 1965 (Cth) but as this was not argued by any party to this litigation I shall refrain from making a decision on that basis.
[8] Australian Competition & Consumer Commission v Michigan Group Pty Ltd (ACN 065 378 029) [2002] FCA 1439; Gemtaf P/L & Ors v Tradebanc International P/L [No 4] [2000] NSWSC 941; Aronis & Anor v Hallett Brick Industries Ltd [1999] SASC 92; Janes Trevor v Queensland Building Services Authority R112-97 (23 October 1997); Miller v Lipscombe [2001] FCA 358; MacFarlane v Heritage Corporation (Aust) P/L & Ors [2004] QCA 183.
[9] (1987) 73 ALR 233 at 240.
[10] (1987) 71 ALR 367 at 371; ATPR 40-768; JJMMR P/L v LG International Corp [2003] QCA 519 per de Jersey CJ at [10]