Parbery v QNI Metals Pty Ltd[2023] QSC 246

SUPREME COURT OF QUEENSLAND

1. [1]
   I will refer to the parties by their respective designations in the subject proceeding.  The second plaintiff (as the only appellant which appealed) was successful in Queensland Nickel Pty Ltd (in liq) v QNI Metals Pty Ltd & Ors [2021] QCA 138 (the first COA decision) in setting aside the order which I had made as a judge of the Trial Division in this proceeding on 3 June 2020 that the second and third plaintiffs’ claims based on the loan agreement dated 21 June 2011 (the loan agreement) against the seventh defendant for repayment of loan moneys were dismissed: Parbery & Ors v QNI Metals Pty Ltd & Ors [2020] QSC 143 (the first instance judgment). 
2. [2]
   The parties to the first COA decision were the second plaintiff as the appellant and the first, second and seventh defendants as the respondents.  The Court in the first COA decision concluded (at [173]) that the loans were made by the second plaintiff as trustee to the seventh defendant (rather than by the first and second defendants to the seventh defendant) and the second plaintiff was entitled to have them repaid.  The Court stated (at [174]):

“The [second plaintiff] has succeeded in demonstrating that the judgment below should be set aside, and in lieu [the seventh defendant] should be ordered to repay the loans to [the second plaintiff].  The total of the loans was $102,884,346.26.  However, there may be questions concerning the interest due on those loans, and how the costs of the proceedings below might be dealt with, given that there were certain issues which involved parties other than those on the appeal, and certain issues on which the appellants did not succeed.”

3. [3]
   In the first COA decision, the Court entered judgment “for the plaintiffs against the seventh defendant” in the sum of $102,884,346.26 (which was subsequently corrected to be $102,844,346.26) and invited the second plaintiff to file any submissions it wished to make in the light of the first COA decision as to the further disposition of the appeal and for the first, second and seventh defendants to file any submissions in response.  The third defendant was not a party to the appeal.
4. [4]
   Because I had dismissed the second and third plaintiffs’ claims against the seventh defendant for repayment of the loan moneys, I did not consider the issue of interest on those moneys.  The second and third plaintiffs had claimed in paragraph 524 of the third further amended consolidated statement of claim for interest pursuant to s 58 of the Civil Proceedings Act 2011 (Qld) (CPA).  The parties duly made submissions to the Court of Appeal as invited to do in the orders made in the first COA decision.  Consistent with its statement of claim, the second plaintiff submitted to the Court that interest should be awarded on the judgment sum pursuant to s 58 of the CPA but in the event the first, second and seventh defendants disputed the application of that provision, that dispute would involve questions of fact that should be determined on remitter to the Trial Division.  The first, second and seventh defendants urged either for remitter of the question of interest or for interest to be awarded pursuant to the loan agreement as the Court had found in the first COA decision that the issue of interest was governed by the loan agreement.  On that basis the respondents submitted that s 58(2)(b) of the CPA applied to exclude the operation of s 58(3). 
5. [5]
   The Court of Appeal made further orders on 2 August 2022: Queensland Nickel Pty Ltd (in liq) v QNI Metals Pty Ltd & Ors [2022] QCA 136 (the second COA decision). 
6. [6]
   It was the second COA decision in which the liability of the seventh defendant to pay interest to the second plaintiff was considered, particularly at [9]-[18] by Morrison JA (with whom Fraser JA and Burns J agreed):

“[9] It may be inferred that the issue of those terms which governed the loan agreement between QNI and Mineralogy were explored as extensively as they could be during the trial.  Decisions were plainly made as to which witnesses to call, and in the end they were confined to Mr Wolfe and Mr Sorensen.  Equally, a decision was made not to call Mr Palmer and Mr Ahyick, the signatories to the 2011 Loan Agreement.

[10] That means that it may be assumed that all the relevant evidence concerning the terms governing the loan between QNI and Mineralogy was before this Court when the appeal was heard.  Consequently, this Court’s reasons give a solid foundation to make conclusions about whether the loan was the subject of a provision for interest, and whether such a provision governed loans made prior to 21 June 2011 (the date the 2011 Loan Agreement was executed), and loans that exceeded the $10 million limit in that agreement.

[11] As for the loans made prior to 21 June 2011, one can conclude that they were comprehended within the terms of the 2011 Loan Agreement.  That agreement was signed by Mr Palmer who was at the heart of decisions made about the loans between QNI and Mineralogy, and whether there would be a limit placed upon them.

[12]  The 2011 Loan Agreement reflected the conversation involving Mr Palmer where the initial limit of $10 million dollars was discussed, but Mr Palmer indicated that there should be no limit.

[13]  Clause 3 of the 2011 Loan Agreement contained this provision as to interest: 

‘Interest shall accrue on any outstanding balance at the end of each calendar month at a rate equal to the Reserve Bank of Australia Cash Rate’.

[14]  The correspondence supported the view that the 2011 Loan Agreement governed the loans between QNI and Mineralogy thereafter.  Thus, the obligation to pay interest was recognised, invoices were issued for the interest on the loan, and that document was discussed as the agreement which governed the loan including the requirement to pay interest.

[15] Insofar as the evidence of Mr Wolfe and Mr Sorensen was concerned, that was directed at a different question from the rate of interest applicable under the loans.  It was directed at trying to establish that the JVCs were the relevant party, rather than Mineralogy.

[16]  In my view, those findings necessitate the conclusion that QNI’s proceedings come within s 58(2)(b) of the Civil Proceedings Act, in that they were proceedings for the payment of money on which interest was payable as of right under an agreement, and therefore interest was not payable pursuant to s 58.

[17]  In my view, it is also correct to say that Mineralogy did not have to plead positively that if any loan agreement was established then that agreement fell within s 58(2)(b).  The central issue joined in the proceedings below was not whether interest was payable under the loan agreement, but who was the party to the loan agreement.  QNI contended it was Mineralogy, and the opposing contention was that it was the JVCs.  On either approach, interest was payable in a way that attracted s 58(2)(b).

[18]  That being the case, the parties are agreed that resolution of the issue, that is to say the rate of interest and the amount, could involve factual findings which make it appropriate that the question be remitted to the trial division.” (footnotes omitted)

7. [7]
   The second order made in the second COA decision was:

“The question of the costs of the trial and the interest payable by the [seventh defendant] to the [second plaintiff], having regard to the orders of this Court made on 25 June 2021, be remitted to the primary judge for determination.”

8. [8]
   That second order dealt with both the question of the costs of the trial and the question of interest payable by the seventh defendant to the second plaintiff and made specific reference to those questions being remitted, having regard to the orders made in the first COA decision. Those orders determined that the loans had to be repaid by the seventh defendant to the second plaintiff which meant that the first COA decision determined the question of the liability of the seventh defendant to the second plaintiff for the repayment of the loans.  Consistent with that determination, the second order made in the second COA decision determined that the interest payable under the loan agreement was payable by the seventh defendant to the second plaintiff. The identity of the seventh defendant as the party liable for payment of the interest under the loan agreement and the identity of the second plaintiff as the party entitled to receive the payment of the interest was resolved by the first and second COA decisions.
9. [9]
   In August 2022 a separate notice of change of solicitor was filed in this proceeding for each of the first, second, third, seventh, fifteenth, sixteenth and twenty-second defendants (the defendants represented by Robinson Nielsen) that notified that the solicitors for those defendants were now Robinson Nielsen Legal.
10. [10]
    The hearing for the question of the costs of the trial and the question of the amount of interest payable by the seventh defendant to the second plaintiff and any other orders that remained outstanding from the first instance judgment was set for 29 November 2022.
11. [11]
    The “defendants” filed an application on 23 September 2022 (which will be referred to as the third defendant’s application as the relief that is sought is for leave to be given to the third defendant to enter into the deed of variation of the loan agreement) returnable on the same date seeking the following order:

“Pursuant to s 90-15 of the Schedule 2 of the Insolvency Practice Schedule (Corporations) of the Corporations Act 2001 (Cth) and/or the inherent jurisdiction of the Court, the third defendant have leave to enter into a deed of variation of the loan agreement between the second plaintiff and the seventh defendant dated 21 June 2011 [exhibit QNK.014.001.0223], in the form of exhibit BTW-04 of the Affidavit of Bernard Tze Loong Wong sworn 23 September 2022.”

12. [12]
    It was noted in the first instance judgment (at [5]) that the third defendant was appointed replacement manager under the joint venture agreement by the first and second defendants on 3 March 2016, that was notified by the first and second defendants to the second plaintiff on 7 March 2016, and the second plaintiff ceased to operate as general manager under the joint venture agreement on 11 March 2016.  The third defendant relies on the fact that it replaced the second plaintiff as the trustee of the trust created under clause 6.4(f) of the joint venture agreement on or about 7 March 2016 and submits that the chose in action constituted by the loan agreement vested in the third defendant.
13. [13]
    An affidavit of Mr Wong (who has been the Chief Financial Officer of the seventh defendant since March 2021) sworn on 23 September 2022 was filed on behalf of the defendants represented by Robinson Nielsen in support of the third defendant’s application. That affidavit exhibited the deed of variation that is the subject of the third defendant’s application that was made between the third and seventh defendants on 23 September 2022.  The deed provides for a retrospective variation of the loan agreement with effect from 21 June 2011 so that interest accrues on any outstanding balance at the end of each calendar year at a rate of 0.001 per cent in lieu of a rate equal to the Reserve Bank of Australia Cash Rate on any outstanding balance at the end of each calendar month that was specified in clause 3 of the loan agreement as originally made between the parties on 21 June 2011.
14. [14]
    There was some inconsistency in the identification of the defendants for whom Robinson Nielsen Legal were appearing at the hearing on 29 November 2022.  Mr Byrne of counsel announced his appearance as being on behalf of the first, second, seventh, fifteenth, sixteenth and twenty-second defendants and his written submissions purported to be on behalf of those defendants for whom he announced his appearance. That reflected the defendants who were ultimately represented at the trial of the subject proceeding before me which did not include the third defendant, as the issues to be decided in the subject proceeding were confined to those set out in parts NA, U and W of the third further amended consolidated statement of claim filed on 21 August 2019: see [7] of the first instance judgment. The affidavit of Mr Wong and the affidavit of Ms Robinson filed on 28 November 2022 purported to be on behalf of the defendants represented by Robinson Nielsen. Consistent with the notices of change of solicitor filed on behalf of each of the defendants represented by Robinson Nielsen in August 2022, that the application filed on 23 September 2022 sought leave for the third defendant to enter into the deed of variation of the loan agreement and that oral submissions were made on behalf of the third defendant, I infer that Mr Byrne made a mistake in not announcing that he was also appearing on behalf of the third defendant and that he was, in fact, appearing on behalf of all the defendants represented by Robinson Nielsen.
15. [15]
    By the commencement of the hearing on 29 November 2022 the parties had agreed on most of the orders that should be made. A draft order was provided by the second and third plaintiffs. The parties were agreed on the orders to be made in respect of the share subscription agreement between the second plaintiff and the sixteenth defendant. Apart from the question of costs in relation to the third defendant’s application (proposed order 2), all other costs orders between the parties were agreed. Subject to the determination of the third defendant’s application (proposed order 1), the parties were otherwise agreed that the calculation of the interest payable by the seventh defendant to the second plaintiff on the judgment amount was $13,497,177.02 (proposed order 6). If the third defendant succeeds on its application, the amount of interest would be $9,086.81. The determination of the third defendant’s application will therefore resolve all remaining outstanding issues between the parties.

Federal Court proceeding

16. [16]
    The matter is further complicated by proceeding QUD 235 of 2021 in the Federal Court of Australia (Federal Court proceeding) which related to the liquidation of the second plaintiff and the entitlement of the third plaintiffs to assert that the second plaintiff was entitled to retain the benefit of the judgment sum paid by the seventh defendant pursuant to the order made in the first COA decision, any further payment made in respect of interest on that sum, and any interest earned by the second plaintiff on that sum, pursuant to a right of indemnity or exoneration to pay liabilities arising in the liquidation of the second plaintiff and the third plaintiffs’ costs, expenses and remuneration from the judgment sum and all other assets of the second plaintiff held by it as trustee for the first and second defendants. When the judgment sum for the amount owing under the loan agreement was paid by the seventh defendant to the second plaintiff pursuant to the order made in the first COA decision, the third defendant demanded that the entire amount be paid by the second plaintiff to it without deduction. The first, second and third defendants asserted that the second plaintiff was required to transfer the whole of the trust property (which they asserted comprised the chose in action against each bank and the funds in the joint venture bank accounts) to the third defendant because it was trust property held by the second plaintiff for the benefit of the joint venture companies which were the first and second defendants, in accordance with [96]-[98] of the first COA decision.
17. [17]
    The Federal Court proceeding was commenced by the second and third plaintiffs for directions under s 90-15 of the Insolvency Practice Schedule (Corporations) or, alternatively, s 96 of the Trusts Act 1973 (Qld). The issues raised by the first, second and third defendants in opposition to the directions and advice sought by the second and third plaintiffs in the Federal Court proceeding were pleaded in an amended statement of claim that was filed in the Federal Court proceeding. The second and third plaintiffs responded to the amended statement of claim by their amended concise statement in response to which the first, second and third defendants made a concise statement in reply.
18. [18]
    Amongst the relief sought by the first, second and third defendants in the Federal Court proceeding was a declaration that the second plaintiff held the trust property, including the judgment sum, on constructive trust for the first and second defendants according to their respective interests under the joint venture agreement, subject to the right of the second plaintiff to indemnity or exoneration from the trust property for expenses properly and reasonably incurred in its capacity as trustee, such trust having arisen on or with effect from 3 March 2016 and an order that, subject to the third defendant not jeopardising any residual right of security held by the second plaintiff in the trust property, the second plaintiff transfer the trust property to the third defendant. There were other issues raised in the Federal Court proceeding that it is not necessary to traverse, as they are not relevant to the third defendant’s application.
19. [19]
    Downes J disposed of the Federal Court proceeding in Park, in the matter of Queensland Nickel Pty Ltd (in liq) (No 3) [2022] FCA 1301 (the Federal Court judgment). Downes J found (at [170]-[173] of the Federal Court judgment) that the second plaintiff’s right of indemnity as a trustee (as explained in Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth (2019) 268 CLR 524 at [29]-[31], [34], [80], [83] and [130]-[132] and Jones v Matrix Partners Pty Ltd (2018) 260 FCR 310 at [35] and [78]-[79]) was exercisable by the liquidator and (at [176]) that it continued to hold trust assets as a bare trustee, and concluded (at [178]):

“It therefore follows that, when [the second plaintiff] was replaced as a Manager and trustee, [the second plaintiff’s] accrued right of indemnity and the accompanying equitable lien survived its removal and [the second plaintiff] retained the obligation ‘to get the trust property in, protect it, and vindicate the rights attaching to it’ as bare trustee.”

20. [20]
    Downes J rejected the reliance of the first, second and third defendants on the statement of Brereton J in Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd (2008) 74 NSWLR 550 at [50] to the effect that a former trustee does not have a right to retain, as against a new trustee, the trust assets as security for an accrued right of indemnity on the basis that observation was contrary to observations in other authorities identified at [186]-[189] of the Federal Court judgment and concluded (at [192]):

“Accordingly, [the second plaintiff] is not required to transfer any part of the judgment sum (or any trust property) to [the third defendant], as the replacement trustee, until such time as it is established that the liabilities properly incurred by it as trustee, including in the course of its winding up, will be satisfied out of the trust property.”

21. [21]
    Downes J also rejected the submission made by the first, second and third defendants that the claim against the seventh defendant vested in the third defendant such that only the third defendant could pursue that claim.  Downes J held (at [195] of the Federal Court judgment) that s 15 of the Trusts Act 1973 which provides the trust property vests in the new trustee upon the replacement of a trustee was “subject to the provisions of any other Act”, so that the chose in action comprising the claim against the seventh defendant did not vest unless the retiring trustee assigned the cause of action in writing in accordance with s 199 of the Property Law Act 1974 (Qld) (PLA). 
22. [22]
    The first, second and third defendants appealed against the orders made by Downes J in the Federal Court proceeding.  The Full Court of the Federal Court (Markovic, Banks-Smith and Halley JJ) dismissed the appeal on 6 September 2023: Queensland Nickel Sales Pty Ltd v Park in his capacity as liquidator of Queensland Nickel Pty Ltd (in liq) [2023] FCAFC 150 (the Full Court judgment).
23. [23]
    The Full Court rejected (at [174]-[189] of the Full Court judgment) the first, second and third defendants’ challenge to Downes J’s conclusion (at [178] of the Federal Court judgment) that the second plaintiff’s accrued right of indemnity and the accompanying equitable lien survived its replacement by the third defendant and it retained the obligation as a bare trustee “to get the trust property in, protect it, and vindicate the rights attaching to it”. The Full Court did not address the discrete propositions rejected by Downes J on the application of s 15 of the Trusts Act 1973 and the statement of Brereton J in Lemery Holdings at [50] and that an assignment under s 199 of the PLA was not required to vest the chose in action constituted by the loan agreement in the third defendant. Those propositions, however, are inconsistent with, and subsumed by, the conclusion reached by both Downes J and the Full Court based on the second plaintiff’s accrued right of indemnity and accompanying equitable lien that justified it pursuing the seventh defendant for the repayment of the loans made by the second plaintiff as trustee under the loan agreement.

Threshold issues

24. [24]
    The first threshold issue is whether the second plaintiff’s right to interest on the outstanding principal debt had been resolved by the first and second COA decisions. In other words, what issue or issues in relation to interest were remitted to the Trial Division for determination.
25. [25]
    As is apparent from [9]-[18] of the second COA decision set out above and the second order made in the second COA decision, that decision disposed of the issue of liability for interest of the seventh defendant to the second plaintiff on the basis of clause 3 of the loan agreement.  All that was left on remittal to the Trial Division (as referred to expressly in [18] of the second COA decision) for determination was the rate of interest in accordance with the means for ascertaining that rate set out in clause 3 of the loan agreement and the resulting amount that was owed for interest.  The liability of the seventh defendant for interest under the loan agreement payable to the second plaintiff and calculated pursuant to clause 3 of the loan agreement “on any outstanding balance at the end of each calendar month at a rate equal to the Reserve Bank of Australia cash rate” was therefore determined by the second COA decision.  It was only the actual calculation of the interest that was not determined by the second COA decision and was left for determination on remittal to the Trial Division.  As set out above (at [8]), the first and the second COA decisions resolved the identity of the second plaintiff as the party entitled to receive the payment of interest from the seventh defendant as between the parties to the first and second COA decisions. That did not necessarily preclude the third defendant from making its application concerning the interest under the loan agreement as a result of events after those decisions.
26. [26]
    The second threshold issue is whether the Federal Court judgment precludes the arguments advanced in support of the third defendant’s application.
27. [27]
    Mr Byrne noted it was not in dispute that the third defendant was appointed as trustee of the trust created by the joint venture agreement with effect from on or about 7 March 2016.  (Mr Byrne did repeat the submissions made by the first, second and third defendants unsuccessfully in the Federal Court proceeding as to the limited nature of that trust. It is unnecessary to recite those submissions or the means by which they were disposed of in the Federal Court judgment and the Full Court judgment, as for the purpose of the third defendant’s argument, it is sufficient that the third defendant recognised that the chose in action constituted by the loan agreement was trust property that had been held by the second plaintiff as trustee.)
28. [28]
    Two propositions advanced at the hearing on 29 November 2022 were that the trust assets automatically vested in the third defendant pursuant to s 15 of the Trusts Act 1973 and, in accordance with Lemery Holdings at [50], the second plaintiff was not entitled to retain, as against the third defendant, the trust assets as security for an accrued right of indemnity.  The third proposition was that an assignment under s 199 of the PLA was not required, as the title of the replacement trustee was derived from s 15 of the Trusts Act 1973, as explained in Re Davies [1989] 1 Qd R 48 at 52-53. These three propositions will be referred to as “the critical propositions”.
29. [29]
    In paragraph 23 of Mr Byrne’s written submissions dated 23 September 2022, an alternative submission was advanced to the argument that the second plaintiff’s rights under the loan agreement vested in the third defendant as the replacement trustee. The alternative submission was that the second plaintiff was required to assign the rights to the third defendant under clause 5.6(d) of the joint venture agreement. It is not necessary to deal with this argument, as Mr Byrne in paragraph 32 of his reply submissions indicated that there was no necessity for the third defendant to rely on the contractual right under clause 5.6(d) and the argument was not pursued by the third defendant at the hearing on 29 November 2022. In any case, that argument was also disposed of (at [201]) in the Federal Court judgment against the first, second and third defendants.
30. [30]
    As set out above (at [20]-[21]), the critical propositions were rejected in the Federal Court judgment. Mr Byrne submits that the critical propositions were dealt with in the Federal Court judgment in giving directions or judicial advice for the protection of the third plaintiffs and that no question of issue estoppel can arise in relation to those issues, as between the second and third plaintiffs on the one hand and the first, second and third defendants on the other hand.
31. [31]
    Although the Federal Court proceeding commenced by way of directions or judicial advice being sought by the second and third plaintiffs and those directions were given, they were also contested proceedings inter partes in which the first, second and third defendants sought discrete relief in their amended statement of claim against the second the third plaintiffs including declaratory relief and an order for transfer of the trust property to the third defendant. A preliminary issue arose in relation to the appeal to the Full Court from the Federal Court judgment as to whether the first, second and third defendants required leave to appeal the decision of Downes J to provide judicial advice as they were not joined as parties to that application. The Full Court concluded at [9] of the Full Court judgment:

“We are satisfied that leave to appeal is not required. The [first, second and third defendants] might not have been formally joined as parties to the judicial advice application but they (a) appeared before the primary judge in the primary proceedings as the second to fourth interested persons, (b) sought relief in the form of declarations relevant to the judicial advice sought by the [second and third plaintiffs], and (c) made extensive submissions in support of that relief and in opposition to the application for judicial advice.”

32. [32]
    For the same reasons identified at [9] of the Full Court judgment, the Federal Court judgment at least to the extent that it dealt with the first, second and third defendants’ application for relief against the second and third plaintiffs should not be characterised as judicial advice or directions that was incapable of giving rise to issue estoppels. It would favour form over substance and deny the nature of the contested Federal Court proceeding as a result of the claims for relief in the amended statement of claim pursued by the first, second and third defendants to treat the Federal Court judgment otherwise.
33. [33]
    Submissions were made at the hearing on 29 November 2022 as to whether the critical propositions relied upon to advance the third defendant’s application were the subject of res judicata or issue estoppel, as a result of the Federal Court proceeding.  As set out above (at [23]), the critical propositions were subsumed by the significant finding made by Downes J (at [178] of the Federal Court judgment) as to the second plaintiff’s accrued right of indemnity and the accompanying equitable lien that survived its replacement as trustee by the third defendant that was upheld in the Full Court judgment (at [188]).
34. [34]
    In relation to the critical propositions, there is identity of issues and identity of parties, namely the third defendant against the second and third plaintiffs, in both the Federal Court proceeding and the third defendant’s application.  The disposition of the critical propositions in the Federal Court judgment and the Full Court judgment is sufficient to give rise at least to issue estoppels, as the disposition of the critical propositions involved “an ultimate issue of fact or law which was necessarily resolved as a step in reaching the determination made in the judgment”: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [22].  Even if I were wrong and the separate claims for relief agitated by the first, second and third defendants in the Federal Court proceeding were treated as part of the second and third plaintiffs’ application for judicial advice or directions or otherwise the Federal Court judgment did not give rise to issue estoppels in the respect of the critical propositions, in the circumstances in which the critical propositions were disposed of by the Federal Court judgment and the Full Court judgment after full argument, the doctrine of abuse of process precludes the third defendant from advancing the critical propositions in support of the third defendant’s application in exactly the same way that was unsuccessful in the Federal Court proceeding: Tomlinson at [24]-[26].
35. [35]
    The Federal Court judgment (and the Full Court judgment) preclude the third defendant’s pursuing the critical propositions in support of the third defendant’s application, whether on the basis of issue estoppels or that it would be an abuse of process to do so.

The third defendant’s application

36. [36]
    The third defendant brought its application on the basis that the chose in action constituted by the loan agreement vested in it as replacement trustee and it therefore had power to vary the interest rate under the loan agreement by agreement with the seventh defendant. As set out above (at [19] and [23]), that vesting in the third defendant was precluded by the rights of indemnity and the equitable lien that accrued to the second plaintiff, as a result of its liquidation, and the issue was resolved between the third defendant and the second and third plaintiffs by the Federal Court proceeding.
37. [37]
    As the third defendant was never a party to the loan agreement between the second plaintiff and the seventh defendant, the doctrine of privity of contract precluded the third defendant otherwise purporting to vary the terms of the loan agreement with the seventh defendant.
38. [38]
    The third defendant’s application is based on an entitlement to vary the terms of the loan agreement that does not exist and therefore must be dismissed.

Orders

39. [39]
    The orders which should be made are those that reflect the parties’ agreement, subject to orders 1 and 2 being those sought by the second and third plaintiffs and order 6 being for the amount of interest calculated by the second and third plaintiffs based on clause 3 of the loan agreement (without any variation).