McMillan v Coolah Home Base Pty Ltd [2024] NSWCA 138

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: McMillan v Coolah Home Base Pty Ltd [2024] NSWCA 138 Hearing dates: 18 and 19 March 2024 Date of orders: 5 June 2024 Decision date: 05 June 2024 Before: Ward P at [1]; Leeming JA at [480]; Stern JA at [481] Decision: 1. Appeal dismissed with costs. Catchwords: REAL PROPERTY – caravan park with entitlement to exclusive long-term sites through share in company which owned the land – at first instance, claim by purchasers of shares to equitable interest in sites – no challenge to finding that no equitable interest in the sites was acquired – challenge to rejection of allegation that alleged representations made that the purchasers were buying sites as land, as well as shares – claim for specific performance – company placed into liquidation caravan park sold to company – indefeasibility of title CORPORATIONS – oppression – company placed into voluntary administration and caravan park land sold to company owned by same directors – where primary judge found that certain other conduct of affairs of company was oppressive – whether primary judge failed to find sale of caravan park itself amounted to oppressive conduct – whether relief ordered was sufficient to remedy oppressive conduct CONSUMER PROTECTION – misleading or deceptive conduct – where appellants did not challenge primary judge's finding that there had been no reliance on the representations said to constitute misleading and deceptive conduct – whether primary judge erred in failing to find misleading or deceptive conduct by the making of representations as to sale of sites as land – whether misleading or deceptive conduct in relation to assurances that caravan park could not be sold without shareholder approval and/or as to whether cabins were fixtures – whether adequate reasons CONSUMER PROTECTION – unconscionable conduct – where alleged unconscionable conduct was constituted by a "course of conduct" of disparate acts – alleged failure of primary judge properly to address the pleaded claim – adequacy of reasons CONSUMER PROTECTION – harassment or coercion – whether correspondence following sale of caravan park amounted to harassing or coercive conduct – where primary judge had found that no damage had resulted from the alleged misconduct Legislation Cited: Australian Consumer Law, Sch 2 of the Competition and Consumer Act 2010 (Cth), ss 18, 20, 21, 22A, 50, 237 Australian Securities and Investments Commission Act 2001 (Cth), Part 2 Div 2, ss 12CA, 12CB Conveyancing Act 1919 (NSW), s 66G Corporations Act 2001 (Cth), ss 232, 233, 442C, 1324 Defence Service Homes Act 1918 (Cth), s 4 Local Court Act 2007 (NSW), s 34A Real Property Act 1900 (NSW), s 42 Residential (Land Lease) Communities Act 2013 (NSW), s 8 Retirement Villages Act 1999 (NSW), s 40 Trade Practices Act 1974 (Cth), s 51AC Uniform Civil Procedure Rules 2005 (NSW), r 14.8 Cases Cited: ACCC v Lux Distributors Pty Ltd [2013] FCAFC 90 ACCC v Quantum Housing Group Pty Ltd (2021) 285 FCR 133; [2021] FCAFC 40 ACCC v Retail Food Group Ltd [2022] FCA 961 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Argy v Blunts (1990) 26 FCR 112 ASIC v Accounts Control Management Services Pty Ltd [2012] FCA 1164 ASIC v AGM Markets Pty Ltd (in liq) (No 3) (2020) 275 FCR 57; [2020] FCA 208 ASIC v Kobelt (2019) 267 CLR 1; [2019] HCA 18 Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196 Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4 Barnes v Addy (1874) LR 9 Ch App 244 Breskvar v Wall (1971) 126 CLR 376; [1971] HCA 70 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14 Coolah Home Base Pty Ltd v Tait [2022] NSWCATAP 324 Coolah Home Base Pty Ltd v Tait [2023] NSWCATAP 3 Dare v Pulham (1982) 148 CLR 658; [1982] HCA 70 Elders Trustee & Executor Co Ltd v EG Reeves Pty Ltd (1987) 78 ALR 193 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Frazer v Walker [1967] 1 AC 569 Giasoumi v Hutton [1977] VR 294 Guest v Guest [2022] UKSC 27; [2023] 1 All ER 695 Henville v Walker (2001) 206 CLR 459; [2001] HCA 52 Jarvis v Swan Tours [1973] 1 All ER 71 John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 Jonval Builders Pty Ltd v Commissioner for Fair Trading (2020) 104 NSWLR 1; [2020] NSWCA 233 LPD Holdings (Aust) Pty Ltd v Phillips [2013] QSC 225 Lukaszewicz v Polish Club Ltd [2019] NSWSC 446 Mayer v Coe [1968] 2 NSWR 747 McMillan v Coolah Home Base Pty Ltd (No 4) [2022] NSWSC 584 McMillan v Coolah Home Base Pty Ltd (No 5) [2022] NSWSC 1589 McMillan v Coolah Home Base Pty Ltd [2023] NSWCA 172 Monroe Topple and Associates Pty Ltd v Institute of Chartered Accountants in Australia (2002) 122 FCR 110; [2002] FCAFC 197 Moore v Scenic Tours Pty Ltd (No 2) [2017] NSWSC 733 Nadinic v Drinkwater (2017) 94 NSWLR 518; [2017] NSWCA 114 Nawar v Newcrest Mining Ltd [2022] FCA 424 NSW Lotteries Corporation Pty Ltd v Kuzmanovski (2011) 195 FCR 234; [2011] FCAFC 106 Productivity Partners Pty Ltd (t/as Captain Cook College) v ACCC (2023) 297 FCR 180; [2023] FCAFC 54 Re Bacchus Distillery Pty Ltd (Administrators Appointed) [2014] VSC 111 Re Smith (2006) 58 ACSR 410; [2006] NSWSC 780 Scott v Port Hinchinbrook Services Ltd [2017] QSC; 320 FLR 46 Self Care IP Holdings Pty Ltd v Allergan Australia Pty Ltd [2023] HCA 8 Sidhu v Van Dyke (2014) 251 CLR 505; [2014] HCA 19 Story v Advance Australia Bank (1993) 31 NSWLR 722 Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 Ta Lee Investment Pty Ltd v Antonios [2019] NSWCA 24 Tait v Coolah Home Base Pty Ltd [2021] NSWCATCD (5 July 2021) Taylor v Dickens [1998] 1 FLR (Eng) 806 Unique International College Pty Ltd v ACCC (2018) 266 FCR 631; [2018] FCAFC 155 Wayde v New South Wales Rugby League Ltd (1985) 180 CLR 459; [1985] HCA 68 White v Tomasel [2003] 2 Qd R 438 Texts Cited: ASIC's disclosure requirements in Regulatory Guide 67 Janice Gray et al, Property Law in New South Wales (LexisNexis, 5th ed 2022) Lockhart, The Law of Misleading or Deceptive Conduct (LexisNexis, 6th edn 2023) M Jebeile, 'Local Court Amendment (Company Title Home Unit Disputes) Act' 2013 (2013) 27(7) Australian Property Law Bulletin 144 Miller, Australian Competition and Consumer Law Annotated (Thomson Reuters, 46th edn 2024) The Encyclopaedic Australian Legal Dictionary (published by LexisNexis Australia) The Essential Guide to Mortgage Law in Australia (2013, 2nd ed, Lexis Nexis Australia) set out at [1.42] Category: Principal judgment Parties: Geoffrey Ian McMillan (First Appellant) David Arthur Darch (Second Appellant) Helen Dawn Waugh (former Third Appellant) Margaret Joy Vale (Fourth Appellant) Jill Cook (Fifth Appellant) Lee Marilyn Tait (Sixth Appellant) Jennifer Sue Axtel (Seventh Appellant) Sietske Elisabeth Brown (Eighth Appellant) James Terence James (Ninth Appellant) Neville John Kelly (Tenth Appellant) Susan Anne Kelly (Eleventh Appellant) Christine Margaret McMillan (Twelfth Appellant) Janne Marnie Robertson (Thirteenth Appellant) John Daniel Sheahan (Fourteenth Appellant) Richard Jim Squire (Fifteenth Appellant) Susan Janet Squire (Sixteenth Appellant) Leslie Townsend (Seventeenth Appellant) Allana Mary Townsend (Eighteenth Appellant) Coolah Home Base Pty Ltd (First Respondent) Coolah Tourist Park Pty Ltd (Second Respondent) Janet Marilyn Kelly (Third Respondent) Graeme George Booker (Fourth Respondent) Cameron Hamish Gray (former Fifth Respondent) Ronald Dean-Willcocks (former Sixth Respondent) Home Base Solutions Pty Ltd (Seventh Respondent) Representation: Counsel: Mr P Vogel (Solicitor) (Appellants) Mr AJ Macauley (Second, Third, Fourth and Seventh Respondents)