Harvard Nominees Pty Ltd v Tiller

• Jurisdiction: Australia Federal only
• Court: Full Federal Court (Australia)
• Judgment Date: 18 December 2020
• Neutral Citation: [2020] FCAFC 229
• Date: 18 December 2020

Federal Court of Australia

Harvard Nominees Pty Ltd v Tiller [2020] FCAFC 229

Appeal from:	Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604
File number:	WAD 129 of 2020
Judgment of:	LEE, ANASTASSIOU AND STEWART JJ
Date of judgment:	18 December 2020
Catchwords:	CONSUMER LAW – misleading or deceptive conduct – entry into a series of pastoral leases in reliance on representations – relief of statutory rescission sought under s 243 of Australian Consumer Law (ACL) – whether appellant suffered or was likely to suffer loss or damage because of contravening conduct under ss 236 and 237 of ACL – whether case was advanced before primary judge –loss or damage not confined to economic loss – entry into contractual arrangement constituted loss or damage in particular circumstances – appellant suffered disadvantage as a result of entry into contract – appeal allowed – matter remitted to primary judge on question of relief ; EQUITY – rescission – differences between rescission at common law and in equity and statutory relief in the nature of rescission
Legislation:	Competition and Consumer Act 2010 (Cth) Sch 2, ss 236, 237, 243 Judiciary Act 1903 (Cth) s 23 Trade Practices Act 1974 (Cth) ss 82, 87
Cases cited:	Akron Securities Ltd v Iliffe (1997) 41 NSWLR 353 Barnes v Addy (1874) LR 9 Ch App 244 Collings Construction Co Pty Ltd v ACCC (1998) 43 NSWLR 131 Commissioner of Taxation (Cth) v St Helen Farm (ACT) Pty Ltd (1981) 146 CLR 336 Davaria Pty Ltd v 7-Eleven Stores Pty Ltd [2020] FCAFC 183 Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 Erlanger v New Sombrero Phosphate Company (1878) 3 App Cas 1218 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41; (2002) 210 CLR 109 Jobbins v Capel Court Corporation Ltd (1989) 25 FCR 226 Lenthall v Westpac Banking Corporation (No 2) [2020] FCA 423; (2020) 144 ACSR 573 Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1998) 196 CLR 494 Metz Holdings Pty Ltd v Simmac Pty Ltd (No 2) [2011] FCA 981; (2011) 216 IR 116 Milne v Federal Commissioner of Taxation (1976) 133 CLR 526 Murphy v Overton Investments Pty Ltd [2004] HCA 3; (2004) 216 CLR 388 Pape v Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1 Redgrave v Hurd (1881) 20 Ch D 1 Sedgwick Ltd v Bain Clarkson Ltd (1994) 56 FCR 578 Tasmania v Victoria (1935) 52 CLR 157 Typing Centre of NSW Pty Ltd v Northern Business College Ltd (1989) 13 IPR 627 UBAF Ltd v European American Banking Corporation; The Pacific Colocotronis [1984] QB 713 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; (2009) 54 MVR 111
Texts cited:	O’Sullivan, D, Elliott, S and Zakrzewski, R, The Law of Rescission (Oxford University Press, 2008) Herzfeld, P and Prince, T, Interpretation (2nd ed, Lawbook Co, 2020)
Division:	General Division
Registry:	New South Wales
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	99
Date of last submissions:	10 November 2020
Date of hearing:	9 and 10 November 2020
Counsel for the Appellant:	Mr N Owens SC and Mr M Hotchkin
Solicitor for the Appellant:	Hotchkin Hanly Lawyers
Counsel for the Respondents:	Mr M Cuerden SC and Mr A Freund
Solicitor for the Respondents:	Lawton Gillon

ORDERS

		WAD 129 of 2020
BETWEEN:	HARVARD NOMINEES PTY LTD ACN 008 761 037 Appellant
AND:	MR SIMON CLIFFORD TILLER First Respondent ; DIMENSION AGRICULTURE PTY LTD Second Respondent ; MR GIOVANNI BASILIO NICOLETTI Third Respondent

order made by:	LEE, ANASTASSIOU AND STEWART JJ
DATE OF ORDER:	18 December 2020

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. Order 1 of the orders made on 19 March 2020, order 5 of the orders made on 11 May 2020 and order 1 of the orders made on 22 July 2020 be set aside.

3. The matter be remitted to the primary judge on the question of what, if any, relief should be granted under ss 236 and 237 of the Australian Consumer Law and any issues as to costs of the proceedings below.

4. The respondents pay the appellant’s costs of and incidental to this appeal.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

A INTRODUCTION

1. The factual background to this appeal was comprehensively set out by the primary judge in Harvard Nominees Pty Ltd v Tiller (No 2) [2020] FCA 604 (PJ) and it is unnecessary to set out that background again. It suffices for the purpose of this appeal to record the following:

1. The appellant (Harvard) is a company controlled by Mr John Caratti.

2. Harvard was the registered proprietor of a farm in Western Australia known as “Warriup Farm” and Mr John Caratti and his brother Mr Allen Caratti were the registered proprietors of another farm known as “Howick Farm”.

3. Prior to January 2019, Harvard had leased Warriup Farm to Mammoth Investments Pty Ltd (Mammoth), a company of which Mr John Caratti was a director, which then subleased it to the first respondent, Mr Tiller and the fifth respondent, Mrs Tiller; Mr John Caratti and Mr Allen Caratti had also leased Howick Farm to Mammoth which also had subleased that property to Mr and Mrs Tiller.

4. A series of transactions then took place which included the surrender by Mr and Mrs Tiller of their subleases (Tiller Subleases) over Warriup Farm and Howick Farm (together, the Farms), the surrender by Mammoth of its lease over Warriup Farm and the assignment of Mammoth’s head lease of Howick Farm to Harvard. These transactions were entered into to allow two new leases to be entered into (New Leases) being: (a) a lease of Warriup Farm by Harvard to Mr Tiller and to the second respondent, Dimension Agriculture Pty Ltd (Dimension); and (b) a sublease of Howick Farm by Harvard to Mr Tiller and Dimension.

5. Prior to entry into this series of transactions, in late January 2019, Mr Tiller and Dimension engaged in misleading and deceptive conduct. This conduct arose because although Dimension had one shareholder, the fourth respondent, Mr Bryce, and its directors were Mr Bryce and Mr Tiller, Dimension in fact was a vehicle of the third respondent, Mr Nicoletti, and had been structured in such a way as to prevent Mr John Caratti being aware of Mr Nicoletti’s involvement. This was of significance because Mr John Caratti did not want to enter into a lease arrangement involving Mr Nicoletti. Mr John Caratti perceived...