Deen v Harburg Nominees Pty Ltd & Anor [2021] QCA 44

SUPREME COURT OF QUEENSLAND CITATION: Deen v Harburg Nominees Pty Ltd & Anor [2021] QCA 44 PARTIES: ABDUL RAHMAN DEEN (appellant) v HARBURG NOMINEES PTY LTD ACN 103 245 923 IN ITS CAPACITY AS TRUSTEE OF THE TW SUPERANNUATION FUND (first respondent) HARBURG INVESTMENTS PTY LTD ACN 010 279 884 IN ITS CAPACITY AS TRUSTEE OF THE PETER HARBURG FAMILY TRUST (second respondent) FILE NO/S: Appeal No 14173 of 2019 SC No 2972 of 2017 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane – [2019] QSC 291 (Applegarth J) DELIVERED ON: 16 March 2021 DELIVERED AT: Brisbane HEARING DATE: 11 June 2020 JUDGES: Fraser and Philippides JJA and Bradley J ORDERS: Appeal dismissed with costs to be assessed on an indemnity basis. CATCHWORDS: GUARANTEE AND INDEMNITY – ACTIONS AGAINST SURETY – GENERALLY – OTHER CASES – where the appellant signed a guarantee in favour of the respondents – where the appellant alleges that the respondents, by their duly appointed agent (‘Mr Harburg’), represented to the appellant that the respondents would not enforce the guarantee or any earlier guarantees and the respondents would fund sufficient monies and provide sufficient support to see the debtor (‘Warapar’) cause the development completed (‘alleged representations’) – whether the trial judge erred in finding that such representations were not made – where the appellant argues further specific errors by the trial judge – whether the trial judge erred in finding it was improbable that the alleged representations were made by Mr Harburg – whether the trial judge erred in preferring the evidence of Mr Harburg to the evidence of the appellant – whether the trial judge erred in finding evidence of the appellant’s former solicitor was -- 1 of 18 -- 2 unreliable – whether the trial judge gave sufficient weight to an email sent on 2 December 2016 and alleged oral representations made to the appellant on 16 December 2016 by Mr Harburg – whether the trial judge erred in finding that the amount advanced by the respondents to Warapar was the amount represented by the appellant to Mr Harburg – whether the trial judge erred in finding that any representation made by Mr Harburg to the appellant was qualified and not open-ended – whether the trial judge erred in finding that Warapar would not have been able to source alternative funding to both complete the project and pay out the respondents – whether the trial judge erred in finding that certain facts had to be shown to a degree of certainty – whether the judgment at trial should be set aside in these circumstances ESTOPPEL – ESTOPPEL BY CONDUCT – ACT, OMISSION OR ASSUMPTION – REPRESENTATION GENERALLY – GENERALLY – where the appellant alleges that the respondents’ duly appointed agent (‘Mr Harburg’) and the appellant agreed that further necessary advances would be provided to complete the development and the respondents will not enforce the guarantee against the appellant until completion of the development and sale – whether the alleged commercial nature of the transaction and commonality of interest of the appellant and the respondent in the successful completion of the development and sale necessitated a finding that such an agreement existed – whether the trial judge erred in declining to find the alleged agreement existed – whether the respondents were estopped from enforcing the guarantee in case of such error by the trial judge – whether the judgment at trial should be set aside in these circumstances PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JUDGMENTS AND ORDERS – ENFORCEMENT OF JUDGMENTS AND ORDERS – EXECUTION AGAINST THE PERSON – where the guarantee entitled the respondents to exercise their remedies simultaneously, contemporaneously, or successively – where the appellant was bound by the guarantee – where the respondents also had the prospect of recovering the debt from security under the contract – where the appellant would likely be bankrupt by enforcement of the judgment – whether discretion should be exercised to grant stay of execution of that judgment pending realisation of such security PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – INDEMNITY COSTS – PARTICULAR CASES – OTHER PARTICULAR CASES – where the respondents sought an order that their costs of appeal are to be assessed on an indemnity basis – where the appellant had signed a guarantee in favour of the respondent – where the guarantee contained a clause stating the respondent could claim reasonable legal costs of enforcing the guarantee on a solicitor -- 2 of 18 -- 3 client basis – where the appellant argued this clause in the guarantee did not justify an order for costs on an indemnity basis – where the appellant argued the requirement to pay costs on a solicitor client basis was a basis of taxation of costs under the repealed Rules of the Supreme Court which is not provided for in a costs assessment under UCPR – where the appellant argued it was relevant that the respondents did not claim any costs in their statement of claim and that the cause of litigation was “loose words concerning the guarantee” by the respondents’ agent – whether, in the circumstances, the court should exercise its discretion to make an order for costs to be assessed on an indemnity basis Australian Securities and Investments Commission Act 2001 (Cth), s 12DA Competition and Consumer Act 2010 (Cth), sch 2, Australian Consumer Law, s 18 Supreme Court of Queensland Act 1991 (Qld), s 133(b) Uniform Civil Procedure Rules 1999 (Qld), s 743S Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65, cited Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54, distinguished Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60, cited Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25, cited China and South Sea Bank Ltd v Tan Soon Gin (alias George Tan) [1990] 1 AC 536; [1989] UKPC 38, cited Platinum United II Pty Ltd v Secured Mortgage Management Ltd (in liq) [2011] QCA 229, cited Watson v Foxman (1995) 49 NSWLR 315, cited Willmott & Anor v McLeay & Anor [2013] QCA 84, cited COUNSEL: F L Harrison QC, with P G Jeffrey, for the appellant R A Kipps for the respondents SOLICITORS: Hall & Co Solicitors for the appellant Enyo Lawyers for the respondents [1] FRASER JA: The appellant appeals against a judgment in the sum of $40,057,964.18 entered against him after a trial. The appellant was the sole director of Warapar Resources Pty Ltd (“Warapar”). The judgment was given pursuant to a guarantee dated 3 June 2016 by which the appellant guaranteed Warapar’s performance of its obligations to the respondents under a loan agreement of the same date. The loan was secured by a mortgage over land Warapar was in the process of developing using money advanced to it by the respondents. [2] There were issues at the trial about the amounts owed by Warapar under the loan agreement and by the appellant under the guarantee, but those matters are not in issue in this appeal. The remaining issues arose upon the appellant’s defence to the -- 3 of 18 -- 4 respondents’ claim upon the guarantee. A list of issues agreed between the parties identified the “real and substantial issues of fact and law in dispute” at the trial. Most of the attention at the trial and in this appeal was focussed upon the first issue: “1. Whether the Plaintiffs, by their duly appointed agent (Mr Peter Harburg), represented from about May 2016 to December 2016 to the Defendant that: a. they would not enforce the guarantee given by the Defendant dated 3 June 2016 or any earlier guarantee given by the Defendant; and/or b. they would fund sufficient monies and provide sufficient support to see Warapar cause the development completed.” [3] Contingently upon a finding that any such representation was made, the parties agreed that five further issues arose: whether the defendant relied upon the representation, whether the defendant suffered detriment by relying upon the representation, whether the plaintiffs acted contrary to the representation, whether the plaintiffs were estopped from enforcing the guarantee against the appellant by reason of the representation, and whether the representation amounted to misleading and deceptive conduct on behalf of the plaintiffs, such that the guarantee is unenforceable. At the hearing of the appeal a focus of the appellant’s arguments was upon the case that the alleged representations amounted to misleading and deceptive conduct in contravention of the applicable statutory provision.1 [4] The appellant gave evidence at the trial that one of the representations he said Mr Harburg made in a conversation between them at a meeting in May 2016 was repeated by Mr Harburg in December of the same year, but at the end of the trial the appellant’s counsel acknowledged that representations made after the guarantee was executed could not found a misrepresentation case. Consistently with that acknowledgment, the appellant’s opposition to the respondents’ claim upon the guarantee was ultimately based upon the alleged representations having been made by Mr Harburg to the appellant at the meeting in late May 2016. [5] The trial judge was not satisfied that Mr Harburg made either of the alleged representations. For that reason the trial judge considered that it was unnecessary to determine the five contingent issues, but the trial judge found he would have determined one of those issues adversely to the appellant. [6] Before discussing the grounds of appeal I will refer to significant parts of the evidence given at the trial. [7] The subject loan of $4.45 million was advanced in early June 2016. Before then the respondents had made four advances to Warapar for the purpose of its development. The fourth loan, which was executed on 18 February 2015 and supported by the appellants’ guarantee, brought the total amount advanced to about $18.5 million. Problems arose in the progress of the development. The appellant gave evidence that Mr Harburg indicated in about March 2016 that the limit of his funding was $20 million. A consultant, Mr Prudden, who was appointed in late 2015 to coordinate 1 Australian Securities and Investments Commission Act 2001 (Cth), s 12DA or Australian Consumer Law in schedule 2 to the Competition and Consumer Act 2010 (Cth), s 18. It is not necessary for present purposes to decide which of these provisions might be applicable. -- 4 of 18 -- 5 the construction, produced an estimate dated 21 April 2016 that the cost of completing the development was then $6,780,690 (a figure which included about $900,000 for interest, $95,000 for financing charges, and a contingency of $250,000). Mr Harburg gave evidence that on 13 May 2016 he met Mr Prudden and was told that further funds would be required to complete the development. Mr Prudden expressed the view that he would “definitely be out by Christmas”. This prediction proved to be unduly optimistic. Substantial work remained to be completed when the respondents appointed a receiver to Warapar on 16 December 2016. [8] A real estate agent, Mr Drew, deposed that the appellant told him in or about April or May 2016 that the respondents “were not agreeable to an extension of the loan”, in response to which Mr Drew proposed that he prepare documents for submission to the respondents. The appellant deposed that to assist Mr Harburg with consideration of a further advance, the appellant and Mr Drew prepared documents entitled “Introducing an Exciting New Industrial Estate”. The documents included a report by Knight Frank Valuations Queensland dated 4 December 2014 expressing the opinion that the “Project Related Site Assessment” of the property on an “As Is” basis was $19.2 million. The appellant said he gave the documents to Mr Harburg in or about late May 2016. Mr Harburg was not sure when he was given the documents but it may have been in April or May 2016. [9] Upon the appellant’s evidence at the trial, Mr Harburg made the alleged representations at a meeting in or about late May 2016 at Mr Harburg’s office at North Quay. Mr Harburg indicated that he had been through the documents mentioned in [8] and wished to continue the funding. The appellant told Mr Harburg he was concerned about his personal liability under the guarantee he had signed on 18 February 2015 and any earlier guarantees he had signed. The appellant told Mr Harburg he would be obtaining finance from an alternate lender if some assurance could not be given to him about the guarantees. The appellant said: “[Mr Harburg] said to me words to the effect that the First and Second Plaintiffs would provide sufficient finance and support to Warapar Resources Pty Ltd to enable it to complete the development and therefore repay the principal and interest. I distinctly recall that Peter Harburg said to me ‘I have never had to rely on a guarantee’ and ‘I am with you until the end’. He then said that neither the Guarantee that I had previously signed on 18 February 2015 nor any earlier Guarantees that I had signed nor any further Guarantee would ever be enforced. I distinctly recall shaking hands with Peter Harburg both in his office and out at the lifts as I was leaving. He said to me that the relevant documents would be prepared shortly.” [10] Mr Harburg gave evidence that he was certain that he had never said to the appellant, or said words to the effect, that “I would not enforce the Supplementary Guarantee”. (The term “Supplementary Guarantee” was a reference to the guarantee of 3 June 2016.) That was not consistent with the respondents’ business practice. It was Mr Harburg’s standard practice that any loan by the respondents, no matter the amount, required a signed personal guarantee. He could not recall ever making a substantial loan without a personal guarantee. Mr Harburg referred to having become increasingly concerned through the first quarter of 2016 about delays in the progress of the project, management of the work to completion, and a significant overrun in loan funds required to complete the project which became significantly more pronounced from mid-2016. It seemed to him by about August or September 2016 that the project was -- 5 of 18 -- 6 not being well run, the cost had blown out significantly, and despite Mr Prudden’s April estimates, it was not near completion. He was not comfortable with continuing to fund the project. He felt the respondents were trapped in continuing to fund. [11] Mr Harburg recalled the appellant mentioning concern over his personal liability at the meeting in May 2016, but not in the way expressed in the appellant’s affidavit. It was possible Mr Harburg told the appellant that the respondents never had to call on a personal guarantee of loan funding before. That was true. Mr Harburg was absolutely certain that he did not suggest or agree not to enforce the personal guarantees given by the appellant in respect of any loan to Warapar. [12] Mr Harburg could recall saying “we ought to focus on getting the project finished and then there would be no need to call on his personal guarantees”. He may have said words to the effect of “let’s get the project done, and get our money out of it, and then your guarantee won’t come into it”. It was the respondents’ practice in all loans they provided to take a personal guarantee from all directors of a corporate borrower. It was also impossible for the respondents to release the personal guarantee because such guarantees were an absolute requirement of the superannuation fund which was the source of some of the loan funding. Mr Harburg was certain he never suggested or agreed that the appellant’s personal guarantees would not be relied upon. Were he to have made the promises the appellant alleged, that would have been very memorable because it would have been the first time such promises had been made by the respondents as lenders. Also, there was a risk that, if he made the alleged representations and the development proved to be unprofitable the appellant would simply walk off the site and leave the respondents without recourse. Mr Harburg was aware of this risk and would never have assumed it. Mr Harburg agreed the appellant asked him for an assurance that he would not enforce the guarantee, but he never said or agreed that the appellant’s personal guarantee would not be enforced and he never said that he was “with [the appellant] until the end”. [13] The trial judge observed that neither the appellant nor Mr Harburg impressed him “as having a good recollection of what was actually said at the meeting” and their accounts “understandably involved an element of reconstruction” about what they thought must have been said and, in Mr Harburg’s case, why some things definitely were not said. The trial judge concluded that it was inherently improbable that Mr Harburg said that he would not enforce the guarantee which was to be given by the appellant under the new loan agreement or any earlier guarantee. It was “entirely probable” that Mr Harburg said something like “let’s get the project done, and get our money out of it”. The trial judge held that this general statement did not amount to a “representation or promise to continue to advance sufficient funds for the project to be completed, particularly if there was mismanagement of the project, with costs vastly exceeding the estimates which had been provided and which were factored into the Loan Agreement”.2 [14] Many grounds of appeal challenge the trial judge’s finding that Mr Harburg did not make the alleged representations. Ground 1 contends that the trial judge erred in finding that the representations alleged by the appellant were not made by the respondents’ duly appointed agent, Mr Harburg. The remaining grounds upon this topic contend for specific errors. For reasons which follow, which substantially reflect reasons given by the trial judge, there was no error in the trial judge’s findings that the representations were not proved. 2 Reasons [30]. -- 6 of 18 -- 7 [15] Six considerations supply strong support for the trial judge’s conclusion that the first representation, that the respondents would not enforce the appellant’s guarantees, was not proved. [16] First, at about the time of the alleged representations, Warapar’s indebtedness to the respondents was about the same as the valuation of the land over which the respondents held a mortgage; by May 2016 the debt to the respondents was $18.7 million as against the most recent valuation of about $19.2 million. As the trial judge considered, “the possibility of the development not being completed on time and on budget was a real one” and “the [respondents] were exposed to a risk of not being able to recover the debts which would be owed to them”.3 Those circumstances, particularly when they are considered together with the following matters, make it seem most improbable that Mr Harburg would at that time have disclaimed future reliance upon the appellant’s guarantee or any previous guarantees. [17] Second, the trial judge accepted Mr Harburg’s evidence that it was his practice in lending money to a development company like Warapar to insist upon a personal guarantee. The appellant referred to Mr Harburg’s evidence that “guarantees are an absolute requirement of the superannuation fund which is the source of some of the loan funding” and argued that Mr Harburg was concerned to avoid the risk of the complying status of the first respondent being revoked by the Commissioner of Taxation under a statutory provision, which would result in it retrospectively losing concessional tax status of the superannuation fund and also risk very substantial penalties. The appellant argued that Mr Harburg’s conduct in taking the guarantee but promising not to enforce it, or to defer enforcement until the project was completed, would have satisfied Mr Harburg’s understanding of the relevant statutory provision. This proposition was not put to Mr Harburg in cross-examination. It is not conveyed by Mr Harburg’s straightforward evidence that it was the respondents’ practice “in any and all loans they have provided to take a personal guarantee … from all directors of a corporate borrower” and it was “also impossible for a personal guarantee to be released, as such guarantees are an absolute requirement of the superannuation fund which is the source of some of the loan funding …”. [18] Third, although the appellant gave evidence that he required an assurance from the respondents that his guarantee would not be called upon and otherwise he would refinance the debt, there was no evidence that in mid-2016 Warapar could obtain the required funds to complete from another lender. Nor does the evidence justify a conclusion that there was then any real prospect that Warapar would be able to obtain such funds. [19] The trial judge found that although the appellant and Warapar had some other sources of funds which, for example, enabled them “to make payments of about $126,000 in early 2016… they were largely dependent on obtaining further funds from Mr Harburg’s companies”.4 No potential lender was identified in the evidence, much less called to give evidence. The appellant engaged Mr Rafter of Peli Capital in about February 2016 to source alternative funding to complete the project and pay out the respondents. He stated that “enough funds could have been pulled together to ensure that the Plaintiff’s loan was repaid”. Mr Rafter stated in or about July 2016 he had “sourced a funder”. That vague evidence is not persuasive. 3 Reasons [14]. 4 Reasons [7]. -- 7 of 18 -- 8 [20] The appellant relied upon a letter from Mr Rafter dated 8 November 2016. That was five months after the appellant signed the guarantee. The letter indicated only that after a “preliminary review” a proposed lender was “ready to move forward with an application” for a loan at interest rates in the very wide range of between 15 per cent and 24 per cent. The rate was said to depend upon the (unspecified) loan to valuation ratio, a statement that adds emphasis to the inchoate character of the suggested arrangement. This document supports the view that the appellant was then unable to secure the necessary finance from any source other than the respondents. [21] Mr Harburg gave the credible evidence that he did not regard the letter as a serious thing. In cross-examination, the appellant agreed that he did not have an approved funder other than Mr Harburg, and that was not through lack of trying. He was advised by Peli Capital that there was an offer but he never saw a document. The trial judge referred to other considerations which also suggest that no alternative financier had offered a more attractive funding package than the respondents; if such an offer had been available to the appellant and Warapar they would have accepted it by July 2016; it is to be expected that any alternative financier would have required a guarantee from the appellant; and if the appellant had not signed the loan agreement and the guarantee on 3 June 2016 he would have remained bound by the previous guarantee he had signed. [22] Fourth, the appellant’s allegation that before the appellant signed the guarantee on 3 June 2016 Mr Harburg represented that the guarantee would not be enforced was inconsistent with the appellant having signed the guarantee at all; there was no point in doing so if it was not to be enforced. There does not seem to be any persuasive answer to this conclusion. In [17] of these reasons I explained why I would not accept the appellant’s arguments that Mr Harburg’s understanding of statutory provisions relating to superannuation explain this incongruity in the appellant’s case. [23] Fifth, the appellant sought and obtained advice from his solicitor about the guarantee but the appellant did not tell his solicitor that Mr Harburg had represented that the guarantee and any earlier guarantee would not be enforced. [24] There were different versions in evidence about what the appellant told his solicitor: (a) In cross-examination the appellant agreed that in June 2016 he attended his solicitor, Mr Carroll, to witness the appellant’s signature on the loan agreement and guarantee. The appellant agreed that Mr Carroll advised him in relation to the loan agreement and guarantee and stated that Mr Carroll cautioned him in relation to the guarantee. In re-examination the appellant said his solicitor, Mr Carroll, told him “the guarantees could be ominous” and the appellant responded that “there’s no worry about that because myself and Peter have a good understanding and we have a sort of mutual agreement between each other and that there has never been a situation where Peter has ever called on a guarantee or enforced one.” (b) Mr Carroll gave evidence that on or about 3 June 2016 the appellant told him that he had read the documents and relied upon Mr Harburg’s assurance that he would continue the finance; “he had a good man to man, honest business relationship with Mr Harburg and trusted him”. When Mr Carroll pointed out the personal guarantee, the appellant said Mr Harburg had said “he’d be with him all the way”. The appellant made it clear to Mr Carroll that the appellant believed the ultimate value of the developed land would cover the debt and he wouldn’t get into financial difficulty because Mr Harburg had always been -- 8 of 18 -- 9 a gentleman to him and given him assurances “it would not end in tears for them”. In cross-examination Mr Carroll agreed he went through the guarantee almost clause by clause. (A clause of the guarantee provided that the appellant had not relied upon any representations when giving the guarantee.) Mr Carroll agreed that he explained the guarantee as he went through it and conveyed to the appellant that Warapar was committed to the respondents and the appellant was a personal guarantor of that responsibility. Following that advice the appellant signed the guarantee and Mr Carroll signed as a witness. [25] Each of those versions of the appellant’s statements to his solicitor is very vague. They do not convey the effect of the representations pleaded in the appellant’s defence and described in the agreed statement of issues. This evidence undermined the reliability of the appellant’s evidence of the representations. [26] The trial judge identified other considerations that tended against Mr Carroll’s evidence being regarded as corroborative of the appellant’s evidence that Mr Harburg made the alleged representations: Mr Carroll was called as a witness apparently on short notice and without reference to his file. The trial judge did not regard his recollection of what was said to him by the appellant in early June 2016 or the advice given by him to the appellant to be particularly reliable detail although the trial judge did accept his evidence about the advice he gave to the appellant about the documents and his explanation of the documents. Contrary to the appellant’s contention in appeal ground 4, the trial judge did not err in finding that the evidence of Mr Carroll was unreliable. [27] Sixth, if the alleged representations had been made, it is to be expected that they would have been referred to in the appellant’s original defence and in his affidavit opposing summary judgment. Instead, the appellant’s complaints at that time were directed towards the conduct of the receivership, the receivers having been appointed in December 2016. The trial judge considered that if the alleged representations had been made it is to be expected that they would have been referred to in the appellant’s original defence and his affidavit opposing summary judgment; the omission from those documents inclined the trial judge to think that the alleged representations were reconstructions of what the appellant thinks must have been said. The trial judge found that the failure of the appellant to explain why there was no reference to the alleged representations in his original defence or affidavit undermined the reliability of his recollection that such representations were made. [28] The appellant was cross-examined on an affidavit he had sworn on 23 May 2018 in response to a summary judgment application brought by the respondents. In that affidavit the appellant made nine complaints, none of which indicated that his guarantee might not be enforceable. Three of the complaints referred to the guarantee: (a) The respondents allowed receivers and managers they had appointed to act as liquidators and they had done irreparable damage to Warapar’s equity of redemption in the land for which finance was provided by the respondents “and for which debt I provided a guarantee upon which the Plaintiffs now rely on this action against me”. (b) The appellant referred to “the complaints made by me on behalf of my company and myself as guarantor”. (c) “While the plaintiffs are not required by the Guarantee documents to first exhaust recovery efforts against the company land, they have all along maintained that there would be equity in the land to repay the alleged debts.” -- 9 of 18 -- 10 [29] The appellant agreed he would presume that the purpose of his affidavit was to respond to the summary judgment application and list the defences which he considered rendered him not liable under the guarantee. The appellant was asked why he did not depose in his affidavit to an agreement that the respondents would not rely upon his personal guarantee. The appellant said he had referred to a gentlemen’s agreement that Mr Harburg would not rely upon the guarantee. The trial judge observed that the paragraph of the affidavit to which the appellant referred in that answer was about notices of default and counsel was saying that his affidavit did not say anything about the alleged representations. The appellant said he was not a lawyer, he was a simple person, and his understanding was that he and Mr Harburg had an agreement that even if notices were issued Mr Harburg would not act on them. [30] The appellant argues that the trial judge’s conclusion about the appellant’s failure initially to recall that Mr Harburg made the alleged representations was inconsistent with what experience teaches is the way that memory works; the fact that one does not initially remember the whole of a transaction does not lead to a conclusion that a subsequent more detailed recollection, after giving more consideration, is to be disregarded. No question of mere detail is involved. The appellant’s affidavit strongly suggests the appellant understood the respondents sought to enforce his guarantee by their claim and application for summary judgment for a large sum of money, yet the appellant did not mention that the respondents had represented to him that they would not enforce the guarantee. The appellant’s answers to questions in cross-examination seeking an explanation for his failure to mention the alleged representations do not explain that failure. The appellant has not established any error in the trial judge’s finding that this evidence undermined the reliability of the appellant’s recollection at the trial that the alleged representations were made. [31] The appellant argues that the trial judge erred by starting from an apparent assumption that Mr Harburg was not keen to enter into the additional loan transaction and would be induced to do so only upon obtaining an unconditional guarantee, without having regard to the situation faced by Mr Harburg that a substantial sum of money was already locked into the development, so he was faced both with the advantage of an establishment fee and a high rate of interest, and the potential disadvantage of a substantial loss if the development could not be carried through to profitable completion by Warapar. The evidence adverted to in [7], [8], [19], [20] and [21] of these reasons demonstrates that the appellant was in fact required to persuade Mr Harburg to make the further advance in June 2016. [32] The appellant’s arguments do not supply a basis for discounting the significance of the substantial body of evidence which supported the trial judge’s conclusions. Nor should it be assumed that the trial judge overlooked the obvious facts that the respondents stood to gain if Warapar’s project was sufficiently successful for the respondents’ loans to be repaid with interest and the respondents risked loss if their refusal to make further advances brought Warapar’s project to a premature end in circumstances in which it otherwise would have been profitable. [33] As to the second alleged representation (that the respondents would fund sufficient monies and provide sufficient support to Warapar to enable it to complete the development), the trial judge’s decision that he was not satisfied that Mr Harburg made the alleged representation is supported by the evidence for the reasons given in relation to the similar finding about the first alleged representation, particularly the first, third, fifth, and sixth matters. The trial judge’s conclusion was consistent also with the appellant’s own evidence discussed in [54] of these reasons in relation to appeal ground 6. -- 10 of 18 -- 11 [34] Appeal ground 7 contends that the trial judge erred in finding that any representation made by Mr Harburg to the effect that the respondents would fund sufficient monies and provide sufficient support to see Warapar cause the subject development to be completed was qualified and not open-ended, despite there being no such evidence given by Mr Harburg. This ground refers to part of the trial judge’s reasons explaining why he was not satisfied that the second alleged representation was made.5 [35] The trial judge first referred to the context in which the alleged representation was made, including that the appellant was seeking additional finance, he and his consultant Mr Prudden were seeking to assure Mr Harburg that the project was close to completion, Warapar had already borrowed a large amount of money from the respondents, the appellant did not wish to agitate Mr Harburg, and although the further advance was only about $4.45 million, Mr Prudden’s estimate of the cost to complete was about $6.8 million dollars. As the trial judge also pointed out, the loan agreement reflected Mr Harburg’s interest in limiting any further monies advanced. Clause 2.3(c) of the loan agreement provides that the lender is not bound to make any progress advance which might cause the amount shown in the Prudden Report in relation to the relevant item to be exceeded and clause 6(l) provided that the borrower should be in default under the loan agreement “if in the reasonable opinion of the Lender the Development Undrawn Amount shall be insufficient to complete the Development”. [36] The trial judge then reasoned as follows:6 “Having regard to the commercial context in which Mr Deen and Mr Harburg found themselves in late May and early June 2016, with the current indebtedness to the plaintiffs about the same as the valuation figure, it seems improbable that Mr Harburg would make any kind of open-ended promise to continue to provide whatever finance was required to enable Warapar to complete the development. Mr Harburg would not have been prepared to advance sufficient finance, whatever it cost, particularly if that cost made the development unprofitable. Any reference to providing “sufficient finance” would have been related to realistic costs which had been estimated and made subject to the kind of conditions contained in the loan agreement. Mr Deen and Mr Harburg had a mutual interest in seeing the project completed. This was the best way for the plaintiffs to recover their existing loans. It is entirely probable that Mr Harburg said something like “Let’s get the project done and get our money out of it”. This was not an unqualified representation or promise to continue to advance sufficient funds to enable the project to be completed, particularly if there was mismanagement of the project, with costs vastly exceeding the estimates which had been provided and which were factored into the Loan Agreement.” [37] Notwithstanding the possibility that, if Warapar’s project ultimately proved to be profitable, the respondents might very substantially benefit from making further advances, and notwithstanding the possibility that the respondents might sustain substantial losses if they did not fund the project to completion, the considerations identified by the trial judge – including the clauses of the relevant loan agreement 5 Reasons [27]. 6 Reasons [30]. -- 11 of 18 -- 12 made after Mr Harburg allegedly made the second representation – support the trial judge’s conclusion that in the prevailing context a general reference to the supply of sufficient finance in the future would not have been understood as amounting to an open-ended promise or representation. [38] The reasons already given explain why I would not accept the contentions in appeal grounds 2 and 3 that the trial judge erred in finding that it was improbable that the representations alleged by the appellant were made by Mr Harburg and the trial judge erred in preferring the evidence of Mr Harburg to the evidence of the appellant. [39] In relation to the allegation that the alleged representations amounted to misleading and deceptive conduct, the appellant argues that the trial judge misdirected himself about the test under the applicable statutory provision by quoting with approval the observations by McLelland CJ in Equity in Watson v Foxman7: “Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, 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. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.” (In the result, McLelland CJ in Equity was not persuaded that the alleged words, or any other form of words which amounted to a promise or representation to the relevant effect, were spoken.) [40] The trial judge expressed the view that the appellant had reconstructed a conversation as one in which Mr Harburg said guarantees the appellant signed, and any further guarantees, would never be enforced and that reconstruction was unreliable. He observed that it was not a sufficient answer that Mr Harburg’s evidence also involved “some degree of reconstruction”, it being for the appellant “to prove the words which were actually spoken with a degree of precision to enable the Court to be reasonably satisfied that Mr Harburg actually said that the guarantees would not ever be enforced”.8 The trial judge considered it to be inherently improbable that Mr Harburg “promised not to enforce the guarantees which had been given or the further guarantee which he required.”9 7 (1995) 49 NSWLR 315 at 318 – 319. 8 Reasons [22]. 9 Reasons [22]. -- 12 of 18 -- 13 [41] The effect of the appellant’s argument is that the trial judge’s endorsement of the first two sentences of the passage from Watson v Foxman conveyed that the appellant was obliged to prove the precise words Mr Harburg said to him when making the alleged representation. Those sentences explain that spoken words alleged to amount to misleading conduct must be proved with “a degree of precision” sufficient to enable the Court to find that in the proved circumstances the words were misleading, and in some cases the precise language of the speaker may be of critical importance in that exercise. In my respectful opinion, that is not controversial. Nor do the trial judge’s reasons suggest some universal or inflexible requirement for proof of the precise words used in making an alleged representation. The trial judge’s analysis does not preclude success in a case in which the words spoken in making a representation are proved with a sufficient degree of precision by evidence describing the substance and effect of the words. The present case is an example of a different kind of case, in which objective probability and (to a lesser extent) the trial judge’s impressions of the credibility of oral evidence requires the conclusion that reliance cannot be placed upon a plaintiff’s evidence of what was conveyed by spoken words. [42] In Australian Competition and Consumer Commission v TPG Internet Pty Ltd,10 upon which the appellant relies, the High Court decided that the Full Court of the Federal Court erred in holding that the primary judge was wrong to regard the “dominant message” of advertisements which were alleged to amount to misleading conduct as being of crucial importance. The majority judgment refers to three reasons for that decision: the victims of the misleading conduct comprised an audience who could not have been expected to pay close attention to the advertisements, it being expected that many persons could absorb only the “general thrust” of the message; the tendency of the advertisements to mislead was their influence to entice members of the audience into a “marketing web” and not necessarily a concluded transaction; and the tendency of the advertisements to lead consumers into error arose from the advertising strategy of selecting some words for emphasis and relegating the rest of the words to relative obscurity. In this very different case, what was conveyed by the alleged misleading conduct – the alleged representations – could be determined only by the trial judge resolving the dispute about the effect of words spoken years earlier in a conversation between businesspersons engaged in a substantial commercial venture regulated by detailed contracts. [43] It is apparent from the passages in the trial judge’s reason already discussed that he adopted the methodology described by McHugh J in Butcher v Lachlan Elder Realty Pty Ltd11 of examining the relevant course of conduct as a whole in the light of the relevant surrounding facts and circumstances and making an objective determination whether the alleged conduct was misleading or deceptive or likely to mislead or deceive. That was conventional and appropriate. [44] The appellant refers to the process of characterisation of impugned conduct as “a task that generally requires consideration of whether the impugned conduct viewed as a whole has a tendency to lead a person into error” or of a “notional cause and effect relationship between the conduct and the state of mind of the relevant person or class of persons [to whom the conduct is directed].”12 That addresses the question whether impugned conduct amounts to misleading or deceptive conduct. The trial judge was not satisfied that the respondents had engaged in the impugned conduct. 10 (2013) 250 CLR 640 at 653 [45] – 656 [52] (French CJ, Crennan, Bell and Keane JJ). 11 (2004) 218 CLR 592 at 625 [109]. 12 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304 at 319 [25] (French CJ). -- 13 of 18 -- 14 [45] Ground 5 contends that the trial judge erred in approaching the proceeding as “not a case in which the defendant says that a guarantee having been given, the lender subsequently promised not to enforce it”, despite the appellant's pleaded case and his evidence being that there were also representations consistent with those conversations. The ground contends that the trial judge failed to give weight to an email from Mr Harburg to the appellant on or about 2 December 2016 and Mr Harburg’s statements at a meeting on or about 16 December 2016. [46] Mr Harburg’s email of 2 December 2016 complains about mismanagement and delay, it sets out conditions required to be satisfied before the respondents can advance any further funds, and it confirms that the respondents will not act on notices of default that had been issued in early November 2016 if a satisfactory agreement on the management of the project is reached and there are no further defaults. The appellant gave evidence that in a conversation on 16 December 2016 Mr Harburg made statements to the effect that he was with the appellant until the end. Mr Harburg gave evidence that he had never made that statement. [47] The trial judge made the statement challenged in ground 5 as part of an explanation for the conclusion that the alleged representation by Mr Harburg that the guarantees would not be enforced was improbable and was not supported by the appellant’s subsequent conduct: “First, the alleged conversation is said to have occurred before the guarantee was signed on 3 June 2016. This is not a case in which the defendant says that a guarantee having been given, the lender subsequently promised not to enforce it. If the guarantee was not going to be enforced then there was no point in signing it. However, Mr Deen did so.”13 The trial judge went on to make the related point that before the appellant signed the guarantee he had sought and obtained advice from his solicitor, Mr Carroll, but neither of them gave evidence that the appellant told Mr Carroll that the guarantee would never be enforced. The improbability that Mr Harburg made that first alleged representation is not affected by the evidence identified in ground 5. At best for the appellant that evidence relates only to the second alleged representation, which the trial judge did not accept was made by Mr Harburg. [48] The appellant made another submission about the evidence identified in ground 5. The appellant submitted that the evidence established he had complied with the conditions stated in Mr Harburg’s email of 2 December 2016, Mr Harburg nevertheless caused a receiver to be appointed to Warapar on 16 December 2016, and Mr Harburg did not mention that he intended to do so or had done so before or at the meeting on the same day. This was said to reflect adversely upon Mr Harburg’s credibility. [49] That argument should not be accepted. Mr Harburg’s email of 2 December 2016 does not convey that he excluded the possibility of a receiver being appointed for any appropriate reason at any time, regardless whether the conditions set out in that email were satisfied. Furthermore, in an email dated 6 December 2016 the appellant stated that Mr Prudden was an appropriate person to perform tasks required by two of the conditions expressed in Mr Harburg’s email of 2 December 2016, and Mr Harburg does not seem to have been challenged on his evidence that he had earlier made clear to the appellant that he had lost confidence in Mr Prudden. Mr Harburg gave evidence 13 Reasons [16]. -- 14 of 18 -- 15 that by December 2016 he had formed the view that Mr Prudden’s estimates of the costs of completion before the June 2016 loan was advanced were wrong, and he was concerned about cost and time blow outs in the project. By 16 December 2016 he had decided that the respondents had no choice but to secure control of the project under receivers. [50] In any case, I am not persuaded that the evidence to which the appellant referred could justify an adverse finding about the credibility of Mr Harburg’s evidence concerning a conversation that occurred in very different circumstances six months before the events of December upon which the appellant relies. Nor does the appellant’s argument surmount the hurdle that the trial judge was not satisfied by the appellant’s own evidence that Mr Harburg engaged in the conduct that formed the basis of the appellant’s pleaded defence to the respondents’ claim. [51] Ground 6 contends that the trial judge erred in finding that the amount advanced to Warapar under the loan agreement was the amount represented by the appellant as being required to complete the subject development, despite the existence of documentary evidence, including cost estimates, to the contrary. Mr Harburg gave evidence that by 3 June 2016 the appellant had represented to him that the cost to complete the development was only about $4.45 million, which was why the loan agreement of 3 June 2016 proposed that amount as the further advance. Ground 6 challenges what is said to be an acceptance of that evidence and an implicit rejection of evidence given by the appellant that as at 3 June 2016 the cost to complete the development was about $6 million. [52] The appellant argues that Mr Harburg’s evidence on the topic was glaringly improbable and contrary to what are submitted to be incontrovertible facts: it appears from Mr Harburg’s evidence that he was not able to recall how and when the representation was made, he admitted receiving in or about May 2016 Mr Prudden’s estimate that the cost of the development to conclusion was $6,780,690, Mr Harburg stated that the amount estimated by Mr Prudden was the amount the respondents were prepared to lend to Warapar, he trusted Mr Prudden’s estimates, and Mr Harburg acknowledged that Mr Prudden’s estimate to complete the development at about that time would require further funding by the respondents. [53] The trial judge’s rejection of the appellant’s claim did not depend upon acceptance of Mr Harburg’s evidence upon this issue. The trial judge referred to Mr Prudden’s estimate of April 2016 of about $6.8 million to complete the project and the appellant’s evidence that as at 3 June 2016 the cost to complete the development was about $6 million. The trial judge observed that Mr Harburg’s recollection was that the appellant had represented that the cost to complete was only about $4.45 million, which was why the loan agreement proposed that as the further sum. The trial judge observed it “may be that this was all that Mr Harburg was prepared to loan” and “it seems improbable that Mr Deen would ask to borrow more than he needed to complete the project … or borrow less than he needed”.14 In relation to Mr Harburg’s evidence, the trial judge found that he “would not be interested in advancing more than was needed to complete the project, with the risk that he would be unable to recover the full amount advanced, together with interest”.15 [54] After expressing doubt that the appellant was encouraging Mr Harburg to think that he would need more than the further amount of $4.45 million, the trial judge observed that “according to Mr Deen, Mr Harburg said that if there was any need for further 14 Reasons [27]. 15 Reasons [28]. -- 15 of 18 -- 16 funds, the plaintiffs would “look at it as the time arises”.”16 That was a reference to the appellant’s answer to questions about why the loan amount was $4.45 million when the appellant had just indicated to the judge that it would cost $6 million to complete the development; the appellant said all Mr Harburg had available was $4.45 million and “then we’d have to look at it after”.17 The trial judge was entitled to regard that as a significant concession which was not consistent with the second alleged representation. As the trial judge held, even accepting the appellant’s evidence that the amount to complete was estimated to be $6 million, his evidence fell short of proving the alleged representations.18 [55] Ground 8 contends the trial judge erred in finding that Warapar would not have been able to source alternative funding to both complete the project and pay out the plaintiffs. Ground 9 contends the trial judge erred in holding that it was necessary for the appellant to show to “a degree of certainty” that Warapar would have been able to source alternative funding to both complete the project and pay out the plaintiffs, or another developer would have taken over the project in consideration for an amount sufficient to cover principal and interest, in order to prove detriment in circumstances where there was no such requirement of proof at law. [56] These grounds relate to the appellant’s case that he suffered detriment as a result of the alleged representations. The alleged detriment is the loss of an opportunity to repay the respondents’ loans and complete the development. The trial judge rejected one of the contentions in ground 9 upon the ground that there was no basis for finding that another developer would have taken over the project in consideration for an amount sufficient to cover the principal and interest outstanding to the respondents. The appellant’s argument does not challenge that conclusion. For the alternative contention in ground 9 the appellant relies primarily upon the evidence of Mr Rafter. For the reasons already given, Mr Rafter’s affidavit was not a persuasive basis for that contention. Nor did the trial judge hold that it was necessary for the appellant to prove to “a degree of certainty” that Warapar would have been able to obtain an alternative source of finance or to sell the project to a different developer. [57] Ground 10 contends that, having regard to the commercial nature of the transaction, and the commonality of interest of lenders and borrower in the successful completion and sale of the relevant development, having regard in the case of the lenders, among other things, to the high rate of interest payable by the borrower (23 per cent per annum), the trial judge should have found that the respondents’ agent agreed to provide further necessary advances to complete the development; and not to enforce the guarantee until after such completion and sale. Ground 11 contends accordingly that the trial judge should have found that the plaintiffs were estopped from enforcing the guarantee until after completion and sale of the development, or there was a collateral contract between the plaintiffs, Warapar and the defendant that the plaintiffs would not demand payment under the guarantee until after completion and sale of the development. [58] Ground 11 depends upon acceptance of ground 10. Ground 10 contends for an agreement that would reflect the appellant’s case at trial that Mr Harburg made the first and second representations. The appellant argues that the findings contended for in ground 10 should have been made upon Mr Harburg’s evidence that he could recall saying at the meeting in May 2016 “we ought to focus on getting the project finished 16 Reasons [31]. 17 Transcript 21 November 2019 at 1 – 55. 18 Reasons [31]. -- 16 of 18 -- 17 and then there would be no need to call on his personal guarantees” and his acknowledgment that he may have said words to the effect of “let’s get the project done, and get our money out of it, and then your guarantee won’t come into it”. I have taken this argument into account in my conclusion that the trial judge did not err in declining to find that Mr Harburg made the alleged representations. That possible prediction that the guarantee would be irrelevant was conditional upon the successful completion of the project. In the circumstances as they were found by the trial judge, the quoted statements did not convey the alleged representations or the substance or effect of either of them. [59] Ground 12 contends the trial judge erred in refusing to defer judgment or stay enforcement of the judgment until such time as the subject development had been sold and the quantum of any shortfall determined. [60] At the trial the appellant’s counsel submitted that any judgment in favour of the respondents should be deferred or there should be a stay of execution until such time as the security property was sold, upon the grounds that the secured property was in the process of being sold, three lots in the developed property had been sold, a judgment for the full amount would result in the appellant’s bankruptcy, and the respondents were protected by their security over Warapar’s land. The appellant now argues that in those circumstances there ought to have been at least a stay of execution pending the sale of the development, there being no practical reason for the trial judge to have decided otherwise. [61] The guarantee provided that it was enforceable notwithstanding that any other security was still in circulation or outstanding (cl 2) and the guarantee was a principal obligation independent, of and in no way affected, by any other security held by the Lender “to the intent that this Guarantee shall be enforceable unless the same shall have been satisfied according to the terms hereof” (cl 4). As the trial judge held, the guarantee entitled the respondents to exercise their remedies simultaneously, contemporaneously, or successively,19 it would be inconsistent with its terms for the respondents to be forced to delay obtaining judgment until the sale of secured property, although the respondents were not entitled to double recovery they were entitled to insist that the appellant honour his guarantee, and the respondents would be obliged to account for the proceeds of any sales of the secured property. [62] As the respondents submitted to the trial judge, the application for a stay was premature, there being no judgment to stay. Furthermore, the appellant did not adduce evidence capable of justifying a conclusion that enforcement of the appellant’s legal obligations established by a judgment would be inappropriate for any reason. No ground for a stay was established. Disposition and proposed order [63] The appeal should be dismissed with costs. The respondents sought an order that their costs of the appeal are to be assessed on the indemnity basis. They rely upon a provision in the guarantee that the appellant will “on demand [pay] … all reasonable costs, charges and expenses of and incidental to … enforcement of this Guarantee (including legal costs on a solicitor client basis and all fees charged by counsel)”. The trial judge took that provision into account in exercising the discretion to award 19 See also China and South Sea Bank Ltd v Tan Soon Gin (alias George Tan) [1990] 1 AC 536 at 545 (Lord Templeman, delivering the judgment of the Privy Council). -- 17 of 18 -- 18 costs of the proceedings in the Trial Division to the respondents on the indemnity basis. The appellant did not argue against that order. [64] The Court has a discretion as to the costs of litigation notwithstanding any contractual provision, but it usually exercises the discretion to give effect to a contractual provision which plainly and unambiguously provides for the costs to be assessed on a special basis.20 [65] The appellant argues that an order for costs on an indemnity basis is not justified by the provision in the guarantee requiring the guarantor to pay legal costs on a solicitor client basis, that being a basis of taxation of costs under the repealed Rules of the Supreme Court which is not provided for a costs assessment under UCPR. There are differences between the criteria for assessment on the indemnity basis under UCPR and the criteria for taxation on a solicitor client basis under the repealed rules,21 but each was designed to allow a larger indemnity for a client’s liability to pay its legal costs than the usual allowance under the relevant procedural rules (a “party and party” taxation under the repealed Rules of the Supreme Court or an assessment on the “standard basis” under UCPR). That general equivalence is reflected in the regulatory framework. Section 133(b) of the Supreme Court of Queensland Act 1991 provides that in “an Act or document, in the context of a court and if otherwise appropriate … a reference to a particular basis of taxation, for example, taxation on a party and party basis, may be taken to be a reference to the basis of taxation specified under the Uniform Civil Procedure Rules as the equivalent basis of taxation”, and the transitional rules about costs provide in s 743S of UCPR that, for the Supreme Court of Queensland Act 1991, s 133(b), “solicitor and client basis equates to indemnity basis”. [66] The appellant also argues that it was relevant that the respondents did not claim costs on any special basis in their statement of claim and that the cause of the litigation was Mr Harburg’s “loose words concerning the guarantee”. The second point lacks weight in circumstances in which the appellant failed to establish that the respondents made the alleged representations which were at the heart of the appellant’s defence to the respondents’ claim. The first point is relevant but in my view the proper exercise of the discretion is to order the appellant to pay the respondents’ costs of the appeal on the indemnity basis. [67] The appellant relied upon its arguments about the costs of the appeal for its further submission that the trial judge’s order for indemnity costs should be set aside. The appellant’s arguments should not be accepted for the reasons already given. The further submission should be rejected in any event because there is no ground of appeal or order sought in the notice of appeal to that effect and because the appellant’s arguments do not identify an error of a kind that would amount to a miscarriage of the trial judge’s exercise of the broad discretion as to costs. [68] I would order that the appeal be dismissed with costs to be assessed on the indemnity basis. [69] PHILIPPIDES JA: I have had the advantage of reading the reasons of Fraser JA. I agree with the reasons of his Honour and the orders proposed. [70] BRADLEY J: I agree with the reasons of Fraser JA and with the orders his Honour proposes. 20 Platinum United II Pty Ltd v Secured Mortgage Management Ltd (in liq) [2011] QCA 229 at [6]. There are many other decisions to similar effect, for example, Chen v Kevin McNamara & Son Pty Ltd & Anor (No 2) [2012] VSCA 229 at [8] cited in Willmott & Anor v McLeay & Anor [2013] QCA 84 at [28]. 21 See Amos v Monsour Pty Ltd [2009] 2 Qd R 303 at 308 [19]. -- 18 of 18 --