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Supreme Court of Victoria |
Last Updated: 17 February 2021
AT MELBOURNE
COMMERCIAL COURT
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JUDGE:
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WHERE
HELD:
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DATE
OF HEARING:
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CASE
MAY BE CITED AS:
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MEDIUM
NEUTRAL CITATION:
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PRACTICE AND PROCEDURE – Application by defendants for an order for summary judgment pursuant to the Civil Procedure Act 2010 (Vic) – Whether the plaintiff’s claim or part of a claim has no real prospect of success – Alternative application by the defendants to strike out parts of the plaintiff’s statement of claim pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Application for summary judgment refused – Leave granted to the plaintiff to file and serve a further amended statement of claim.
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APPEARANCES:
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Counsel
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Solicitors
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For the Plaintiff
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Gadens
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For the Defendants
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Hall & Wilcox
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1 By a summons filed 5 May 2020, the Defendants seek an order for summary judgment in relation to certain parts of the Plaintiff’s Amended Statement of Claim filed 22 April 2020 (‘ASOC’) under the summary judgment provisions of the Civil Procedure Act 2010 (Vic) (‘Civil Procedure Act’)[1] and the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’),[2] alternatively, that those parts of the ASOC be struck out.[3]
2 As an alternative to the strike out application, the Defendants seek an order that the Plaintiff serve particulars of certain parts of the ASOC.[4]
3 The application became somewhat of a moving feast. After the summons was filed but before the hearing of the summons, the Plaintiff provided the Defendants with a proposed Further Amended Statement of Claim (‘proposed FASOC’)[5] and sought to rely upon the proposed FASOC at the hearing. Sensibly, both counsel adapted their submissions and argued the issues in relation to the proposed FASOC rather than the superseded ASOC. Ultimately, the Plaintiff sought leave to file the proposed FASOC subject to the incorporation of a further amendment with respect to dates.
4 This proceeding is one of four separate but related proceedings being managed together.[6] Senior Counsel for the Plaintiff informed the Court that the outcome of the application in this proceeding is not intended to bind the parties in the other proceedings but, in so far as it is relevant to the related proceedings, the outcome will be taken into account in the conduct of those proceedings.[7]
The applicable law
Summary judgment
5 Summary judgment is available to defendants in proceedings under ss 62 and 63 of the Civil Procedure Act, Part 3 of Order 22 of the Rules, and as a feature of the Court’s inherent jurisdiction to prevent the abuse of its processes.[7] The principles that apply to summary judgment applications are well established.[8] Summary judgment may be given if the Court is satisfied that a claim or part of a claim has no real prospect of success[9] and is entered only where there is no real question to be tried.[10]
6 A mere deficiency in a pleading is an insufficient reason for summary judgment.[11] Further, under s 64 of the Civil Procedure Act, the Court may decline to enter summary judgment if it is satisfied that the dispute is of such a nature that only a full hearing on the merits is appropriate or that it is in the interests of justice to allow the matter to proceed to trial.
Strike out applications
7 Pleadings or parts of pleadings may be struck out under r 23.02 of the Rules. The principles that apply to strike out applications are equally well established.[12] Relevantly, the court may order that the whole or part of a statement of claim be struck out if it does not disclose a cause of action, is scandalous, frivolous or vexatious, if it may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of process.[13]
The parties’ submissions
8 In support of their summons, the Defendants rely on the affidavits of Hamish Michael Bryce McNair dated 29 April 2020, 21 May 2020, and 17 July 2020. In opposition to the summons, the Plaintiff relies on the affidavits of Simon Anthony Theodore dated 6 July 2020 and 24 July 2020.
9 Affidavit material may be pertinent to the summary judgment application but to the extent that the application is to strike out the pleading, the application is to be determined solely on the face of the pleading.
10 Each party provided a written outline of submissions.
Representations
11 In the ASOC, the Plaintiff alleges that the representations were made by an information memorandum (‘IM’).[14] In the proposed FASOC, the Plaintiff alleges that the representations were made by a ‘marketing Brochure, which incorporated the IM by reference’ (‘Brochure’).[15]
12 The Defendants submit that the proposed amendment should not be allowed because it has no real prospect of success:[16]
(a) as the Brochure containing the alleged representations was created on or about 11 July 2014, after the date on which the Plaintiff alleges it was distributed (21 May 2014) and contains information that did not exist on 21 May 2014;
(b) the application to invest was made on 13 June 2014, before the Brochure was created; and
(c) (although the Plaintiff alleges reliance), the Plaintiff’s evidence (in particular the evidence of Mr Theodore to the effect that the Plaintiff ‘received and considered the Brochure prior to making his investment’), is not evidence of reliance on the alleged representations.
13 The Plaintiff submits that:
(a) there is no sufficient basis for summary judgment in relation to the representations because the Defendants’ submissions involve questions of fact, which are to be decided at trial;[17]
(b) the Plaintiff’s evidence will be that he received the Brochure, and relied on it, before making the relevant investment on 4 February 2015;[18]
(c) the Defendants’ submissions go merely to a formal pleading defect that is easily remedied;[19]
(d) (in response to the Defendants’ submission that the Plaintiff made his investment application prior to the creation of the Brochure), the Plaintiff alleges that he applied to make the relevant investment on 4 January 2015 using an earlier dated form and made the investment in February 2015;[20] and
(e) he is not required to prove reliance for the purpose of the Defendants’ application, and that, in any event, Mr Theodore’s affidavit deposing that the Plaintiff received and considered the Brochure prior to making his investment is sufficient for the purposes of the summary judgment application.
Disposition – Representations
14 In my view, it is not open on the material to enter summary judgment in favour of the Defendants on the basis of what is contained in the proposed FASOC or the affidavit material, particularly in light of the proposed amendment to the proposed FASOC by the addition of the timeline (‘in the period from May to July 2014’) in lieu of the specific date (‘on 21 May 2014’) in paragraph 16 and by making consequential changes to particulars.
15 These proposed amendments neutralise the sting of the Defendants’ submission that the Plaintiff cannot have relied upon the Brochure (because it came into existence on 14 July 2014).
16 Assuming incorporation of the amendment in relation to dates, the proposed FASOC contains a claim which is viable on its face. Namely, that the Defendants made a representation in the period from May to July 2014 which was relied upon and induced the Plaintiff to apply for units in the Trust on or about 4 January 2015 (on an application form signed the previous year) and to make an investment of $5 million in units in the Trust.
17 Doubtless, at trial, the Defendants will seek to make much of the fact that the Plaintiff signed an application form in June 2014 and may seek to argue that the decision to invest was made at that time rather than in January 2015, as pleaded. This will involve a contest of fact and law which it is not appropriate to resolve on an interlocutory application for summary judgment, nor by striking out of this part of the pleading.
18 Ultimately, the case may not turn on a significant dispute about facts. The dispute may be more about a construction of the facts and an application of the law. In this regard, the Court will need to know something about the content of the ‘consideration’ by the Plaintiff referred to in Mr Theodore’s affidavit, and be able to determine whether the consideration amounts to reliance. Whether reliance is demonstrated can only be determined after hearing the evidence and having the benefit of full argument.
19 The Defendants will be given every opportunity to test the Plaintiff in cross-examination on the changes made by the Plaintiff to his pleaded case and on the issue of reliance. In all the circumstances, in my view, the proposed amendments in relation to the representations case, including the proposed amendment to the dates suggested during argument, should be allowed.
Knowing Assistance
20 The Plaintiff makes separate knowing assistance claims against the Third Defendant (OHC) and Fourth to Sixth Defendants (Directors). There are minor differences between the relevant parts of the ASOC and the proposed FASOC.
21 The Defendants submit that:
(a) the Plaintiff fails to allege acts of any of the Defendants that constitute knowing assistance of any breach by the Trustee;
(b) paragraphs 37 (now 36 in the proposed FASOC) (relating to OHC) and 41 (now 40 in the proposed FASOC) (relating to the Directors) allege in an impermissibly rolled up way that the Third Defendant (OHC) and Fourth to Sixth Defendants (Directors) caused, procured or knowingly assisted the making and management of certain loans in breach of trust by the Trustee and thereby caused, procured or knowingly assisted the Trustee to commit breaches of trust;
(c) the Plaintiff fails to provide any particulars;[21] and
(d) it is necessary to allege with precision the acts of the Defendant that made it a knowing participant in the breach of trust and to prove that the Defendants’ conduct made a difference in that it advanced the primary breach in some way and had some causal significance, citing Nicholson Street Pty Ltd (receivers and managers appointed) (in liquidation) v Letten (‘Letten’).[22]
22 The Plaintiff submits that:
(a) the relevant conduct is sufficiently identified and particularised in the proposed FASOC;
(b) a reasonable reader of the proposed FASOC would be able to ascertain with sufficient precision the involvement of the particular individual; and
(c) reliance on Letten is misplaced, as the directors in that case did no more than carry out their roles as directors of the trustee, whereas, in this case, the Directors are involved in the actions of entities in addition to the Trustee, such as borrowing companies, OHC the guarantor of the interest, the Oliver Hume company which is the developer, or the Oliver Hume company which provided financial management services. The Directors in those capacities did such things as executing documents which arguably effected breaches by the Trustee of its obligations to the investors.[2]
23 The Plaintiff submits that ‘knowing assistance’ will be found where, but for the third parties’ action or inaction, the breach would not have occurred, or where the third party facilitated a breach that would have occurred in any event, relying for this proposition on Harstead Pty Ltd v Tominic.[23] The Plaintiff submits that this is sufficient for present purposes.
Disposition – Knowing Assistance
24 There is merit in the Defendants’ complaint that the knowing assistance allegations in the proposed FASOC are impermissibly rolled up. Even though the Defendants may be able to work through the pleading, including its 37 page Schedule, and discover the acts complained of which relate to particular Defendants, it is not a straightforward task. It is noteworthy that the Plaintiff’s written submission rebutting the complaints of the inadequacy of the pleading (and relied upon during argument) contains a summary of the conduct of the Directors complained of (with helpful cross-referencing to the lengthy Schedule) which is more transparent than the pleading itself.
25 In my view, further particulars should be given of the alleged conduct of OHC and each of the Directors in causing, procuring, and knowingly assisting the making and management of the loans in issue in breach of trust by the Trust. Each of these Defendants are entitled to know the specific action or inaction applicable to them without having to sift through the Schedule to work it out for themselves.
Statutory Breach Claims
26 Paragraphs 44 to 47 of the ASOC comprise claims based on the alleged representations for contraventions of ss 1041E(1), 1041F(1), and 1041H of the Corporations Act 2001 (Cth) (‘Corporations Act’). These claims remain largely unchanged in the proposed FASOC, save that they are made against the First, Second and Third Defendants only (previously the First to Fourth Defendants) and are now based on the provision of the Brochure (rather than the IM).
27 The Defendants submit that these claims have no real prospect of success and should be summarily dismissed as the conduct complained of did not take place in this jurisdiction as contemplated by ss 1041E(1), 1041F(1), and 1041H(1) of the Corporations Act.[24]
1041E(1), 1041F(1), and 1041H(1) of the Corporations Act
28 Section 1041E(1) provides:
1041E(1) A person must not (whether in this jurisdiction or elsewhere) make a statement, or disseminate information, if:
(a) the statement or information is false in a material particular or is materially misleading; and
(b) the statement or information is likely:
(i) to induce persons in this jurisdiction to apply for financial products; or
(ii) to induce persons in this jurisdiction to dispose of or acquire financial products; or
(iii) to have the effect of increasing, reducing, maintaining or stabilising the price for trading in financial products on a financial market operated in this jurisdiction; and
(c) when the person makes the statement, or disseminates the information:
(i) the person does not care whether the statement or information is true or false; or
(ii) the person knows, or ought reasonably to have known, that the statement or information is false in a material particular or is materially misleading...
Section 1041F(1) provides:
1041F(1) A person must not, in this jurisdiction, induce another person to deal in financial products:
(a) by making or publishing a statement, promise or forecast if the person knows, or is reckless as to whether, the statement is misleading, false or deceptive; or
(b) by a dishonest concealment of material facts; or
(c) by recording or storing information that the person knows to be false or misleading in a material particular or materially misleading if:
(i) the information is recorded or stored in, or by means of, a mechanical, electronic or other device; and
(ii) when the information was so recorded or stored, the person had reasonable grounds for expecting that it would be available to the other person, or a class of persons that includes the other person...
Section 1041(H)(1) provides:
1041H(1) A person must not, in this jurisdiction, engage in conduct, in relation to a financial product or a financial service, that is misleading or deceptive or is likely to mislead or deceive...
29 The term ‘this jurisdiction’ is defined in s 9 of the Corporations Act as follows:
‘this jurisdiction’ means the geographical area that consists of:(a) each referring State (including its coastal sea); and
(b) the Capital Territory (including the coastal sea of the Jervis Bay Territory); and
(c) the Northern Territory (including its coastal sea); and
(d) also, for the purposes of the application of a provision of Chapter 7 or an associated provision (as defined in section 5)--any external Territory in which the provision applies because of subsection 5(9) (but only to the extent provided for in that subsection).
30 The Defendant submits that:
(a) section 1041E(1) requires a person induced to apply for, or to acquire, financial products to be physically present in Australia when induced to apply for or acquire financial products;[25]
(b) section 1041F(1) requires the inducement to deal in financial products to occur in this jurisdiction;[26] and
(c) section 1041H(1) requires the conduct in relation to the financial product or financial service that is misleading or deceptive or is likely to mislead or deceive must ‘be located’ in this jurisdiction.[27]
31 The Defendants submit that the Plaintiff cannot rely on these statutory provisions because he was induced to invest in the Trust during his attendance at a meeting which took place in China, and that the alleged misleading or deceptive conduct, whether in the form of the IM or the Brochure, was directed to and received by the Plaintiff in China[28] so that neither the alleged inducing conduct nor the alleged misleading or deceptive conduct occurred ‘in this jurisdiction’.
32 The Plaintiff submits that:
(a) it is immaterial whether the Plaintiff was within the jurisdiction when the Brochure (or the IM) was provided to him;
(b) the offer was received and accepted in Australia;
(c) the conduct in producing the allegedly misleading Brochure (and IM) was conduct in Australia;
(d) the Plaintiff’s participation in the Significant Investor Visa program means that he is a person “in this jurisdiction” as required by the sections;[29] and
(e) whether the conduct of the Defendants (including the representations contained in the Brochure and IM) was likely to induce persons within this jurisdiction to apply for financial products is a real issue to be determined at trial.[30]
33 Both the Defendants and the Plaintiff relied on ABN AMRO Bank v Bathurst Council[31] for the purposes of understanding the meaning of the words ‘in this jurisdiction’. Relevantly, the Full Court of the Federal Court (Jacobson, Gilmore and Gordon JJ) states, with reference to s 1041H of the Corporations Act:
...
34 The Defendants relied predominantly on paragraph 729 in support of the submission that what is to be located ‘in this jurisdiction’ is the misleading or deceptive conduct.[33] The Plaintiff relied predominantly on paragraph 733 in support of the submission that not all of the conduct needs to have occurred in this jurisdiction.
Disposition – Statutory Breach Claims
35 It is self-evident in this case that determining whether the relevant sections of the Corporations Act are engaged will be a mixed question of law and fact. The text of the statute does not, as the Defendants contend, state that the person induced must be physically present in Australia (rather, whether the statement or information is likely to induce persons in this jurisdiction). Nor is it clear whether production of the Brochure in Australia (if that be the fact) is a sufficient nexus to this jurisdiction if the Brochure contained misleading and deceptive material and was distributed outside this jurisdiction, for example, in China. It is clear to me there are real questions to be tried. I am not satisfied that the Corporations Act claims have no real prospect of success. Accordingly, I refuse the application for summary judgment on the statutory breach claims.
Interest Guarantee Claim
36 In paragraph 11(f) of the proposed FASOC, the Plaintiff alleges that it was a term of the Trust that “OHC would guarantee the payment of interest under each loan agreement of 7.5% per annum of the principal outstanding from time to time for five years of each loan”. The alleged breach is to the effect that the guarantees only guaranteed the due and punctual payment by borrowers of interest limited to ‘up to’ 5% per annum of the principal outstanding from time to time for a period of up to five years.[34]
37 While the Plaintiff proposes minor changes in the proposed FASOC to modify the allegation with respect to dates , the claim with respect to the rate of interest remains the same.[35] In the ASOC and the proposed FASOC, the Plaintiff alleges that this term was in writing contained in the IM.
38 The Defendants submit that the:
(a) Plaintiff has no document that supports the allegation that such a written term exists;[36]
(b) IM states in two separate places that ‘OHC guarantees the payment of interest under each loan agreement up to 7.5% of the principal outstanding’;
(c) IM does not state that OHC will provide a guarantee at the rate of 7.5%;[37] and
(d) claim is untenable and the Plaintiff therefore has no real prospect of successfully arguing that a guarantee of 5% would contravene a term that a guarantee of “up to 7.5%” would be provided.[38]
39 The Plaintiff submits that the alleged representations are to be determined having regard to all of the circumstances, including the impression created by the documents taken as a whole.[39]
40 Specifically, the Plaintiff submits that the Brochure states:
(a) on its front page “Annual return 7.5%” and “All loan investment projects promise an annual rate of return of 7.5%...”;
(b) that the [Fund] is designed to provide investors with an annual pre-tax return of 7.5%;
(c) that the Fund will offer investors a pre-tax annual return of 7.5%; and
(d) that 7.5% is the “benchmark return”.
41 In a similar vein the Plaintiff submits that the IM states that:[40]
(a) the Fund was targeting an annual income return of 7.5% per annum;[41]
(b) [OHC] guarantees the payment of interest under each loan agreement of 7.5% per annum;[42] and
(c) ‘the Fund has been structured to provide Investors with an income return of 7.5% per annum’.[43]
42 During oral argument, Senior Counsel for the Plaintiff submitted that there were statements in both the Brochure and the IM that the interest rate would be 7.5%, that the Plaintiff is entitled to plead and rely on the unqualified statements, that there is plainly a real question to be tried, and that the nature of the representations made are properly a matter for trial.[4]
Disposition – Interest Guarantee Claim
43 Naturally, at this interlocutory stage, I am not concerned with evaluating the merits of the interest guarantee claim or indeed any of the claims made in the ASOC or proposed FASOC.
44 Nevertheless I have examined the Brochure and the IM documents in evidence. The Brochure (which bears the notation ‘Translated from Simplified Chinese’) states:
(a) Oliver Hume Australian Property Fund “Annual return 7.5%” and “All loan investment projects promise an annual rate of return of 7.5% ...”;[44]
(b) [that the Fund] is designed to provide investors with an annual pre-tax return of 7.5%;[45] and
(c) [that the Fund] will offer investors a pre-tax annual return of 7.5%.[46]
45 The IM has a Key Features summary[47] which states, on page 5:[48]
The Fund is targeting an annual income return of 7.5% per annum (pre-tax) to Investors.
Oliver Hume Corporation Pty Ltd guarantees the payment of interest under each loan agreement of up to 7.5% per annum of the principal outstanding from time to time. The guarantee does not include or cover the repayment of principal or the full amount of the interest payable under each loan agreement.
46 The IM, contains a statement of the Distribution Policy as follows:[49]
The Fund has been structured to provide Investors with an income return of 7.5% per annum (pre-tax). Investors will not receive income returns in excess of this rate.
47 Self-evidently, there are references in key documents to a rate of return of 7.5% per annum in unqualified terms. In other places, there are references to a 7.5% return which are qualified by the words ‘up to’. It is apparent that there are real questions to be tried not only as to the meaning and effect of differences within the documents but also on the proper construction of the documents read as a whole. It seems likely that the Court may also need to determine, on the balance of probabilities, which version of any documents were provided to the Plaintiff, and the content of the version which has been translated into the English language. These are matters which can only be addressed properly at trial with the benefit of all the facts and comprehensive argument.
48 It follows that the Defendants’ application for summary dismissal must be refused.
Conclusion
49 In all the circumstances, I consider it appropriate to:
(a) grant leave to the Plaintiff to file and serve a further amended statement of claim substantially in the form of the proposed FASOC, incorporating further amendments in relation to dates in the terms discussed during argument; and
(b) require the Plaintiff to give further particulars of the alleged conduct of OHC and each of the Directors in causing, procuring, and knowingly assisting the Trust in the making and management of the loans in issue in breach of trust.
IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMERCIAL COURT S ECI 2020 00448
SCHEDULE OF PARTIES
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BETWEEN
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NINGCHEN WU
Plaintiff
and
OHAPIF PTY LTD (ACN 167 080 542) AS TRUSTEE FOR THE OLIVER HUME AUSTRALIA PROPERTY INCOME FUND
First Defendant
and
OLIVER HUME PROPERTY FUNDS LIMITED (ACN 107 091 770)
Second Defendant
and
OLIVER HUME CORPORATION PTY LTD (ACN 158 419 160)
Third Defendant
and
MICHAEL MATHIAS DUSTER
Fourth Defendant
and
DAVID JAMES ROGERS
Fifth Defendant
and
GERRARD ELLIS
Sixth Defendant
[1] Civil Procedure Act, ss 62 and 63.
[2] Rules, rr 22.16 and 22.22(b), or in the alternative, r 23.01.
[3] Pursuant to r 23.02 of the Rules.
[4] Pursuant to r 13.11 of the Rules.
[5] The FASOC is contained in Exhibit SAT-2 to the Affidavit of Simon Anthony Theodore sworn 6 July 2020 (‘SAT-2’).
[6] The other proceedings are proceedings S ECI 2020 00447, S ECI 2020 00449, and S ECI 2020 00487. Pursuant to Orders of the Court dated 10 March 2020, the proceedings are to be managed together under r 9.12(1) of the Rules.
[7] Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, 92.
[8] Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27, [35]; Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17, [127]; Gull Lexington Group Pty Ltd v Laguna Bay Agricultural Pty Ltd [2018] VSCA 85, [123]; Mandie v Memart Nominees Pty Ltd [2016] VSCA 4, [45].
[9] Civil Procedure Act, ss 62, 63(1), 63(2)(b).
[10] Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 at [22]- [23].
[11] Ibid.
[12] Wheelahan v City of Casey (No 12) [2013] VSC 316, [25]; Vo v Nguyen [2013] VSC 304, [30]-[41].
[13] Rules, r 23.02.
[14] ASOC, [17].
[15] FASOC, [16].
[16] Defendants’ submissions dated 17 July 2020, [34].
[17] Plaintiff’s submissions dated 24 July 2020, [27]-[28].
[18] Plaintiff’s Submissions, [29], [31].
[19] Plaintiff’s Submissions, [30].
[20] Proposed FASOC, [17].
[21] Defendants’ Submissions, [37].
[22] [2015] VSC 583, [67]-[69].
[23] [2018] VSCA 84; (2018) 55 VR 158 at [117]- [118].
[24] Defendants’ Submissions, [41].
[25] Defendants’ Submissions, [42].
[26] Defendants’ Submissions, [43].
[27] Defendants’ Submissions, [44].
[28] Defendants’ Submissions, [42] - [43].
[29] ASOC, [44].
[30] Plaintiff’s Submissions, [44].
[31] [2014] FCAFC 65; (2014) 224 FCR 1.
[32] Ibid, 137, [729], [730] and [733].
[33] Defendants’ Submissions [44].
[34] ASOC, [31].
[35] FASOC 11(f). Further Amended Statement of Claim dated 6 July 2020.
[36] Defendants’ Submissions, [47].
[37] Defendants’ Submissions, [47].
[38] Defendants’ Submissions, [49].
[39] Plaintiff’s Submissions, [48].
[40] Plaintiff’s Submissions, [50]. See also Exhibit HMM-6 to the Affidavit of Hamish Michael Bryce McNair affirmed 21 May 2020 (‘HMM-6’) at pp 6, 12, 15, and 29.
[41] HMM-6 at p 12.
[42] HMM-6 at pp 12, 15.
[43] HMM-6 at p 29.
[44] SAT-2 at p 5.
[45] SAT-2 at p 6.
[46] Ibid.
[47] The Key Features summary is contained in the Oliver Hume Australia Property Income Fund IM provided in response to a document request by the Plaintiff for the information memorandum distributed to investors in a document described as the 12 December 2013 IM.
[48] HMM-6 at p 12.
[49] HMM-6 at p 29.
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URL: http://www.austlii.edu.au/au/cases/vic/VSC/2020/552.html