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Marks v Thompson [2023] VSC 716 (4 December 2023)

Last Updated: 4 December 2023

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 04875

IN THE MATTER of section 109 of the Magistrates’ Court Act 1989

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APPEAL – Appeal from Magistrates’ Court – Where appellant claims he was denied procedural fairness – Issues not raised in pleadings – Incomplete nature of findings of fact – Error of law established – Appeal granted - Proceeding remitted for reconsideration and further determination – Limitation of Actions Act 1958 ss 5(7), 20(1) – Magistrates’ Court Act 1989 s 109 – Magistrates’ Court General Civil Procedure Rules 2020 r 13.02(3) and r 13.02(5) – Betfair Pty Ltd v Racing New South Wales [2010] FCAFC 133; (2010) 189 FCR 356 – Chan v Liu [2020] VSCA 28.

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HIS HONOUR:

1 This is an appeal under s 109 of the Magistrates’ Court Act 1989 from an order made by the Magistrates’ Court on 28 October 2022 in which, amongst other things, declarations were made that no monies were owed by the respondents to the appellant pursuant to a mortgage, and that the respondents were entitled to a discharge from that mortgage.
2 The proceeding in the Magistrates’ Court was commenced on 12 April 2021 by the respondents who sought the removal of a mortgage registered by the appellant over a property in Golden Square, a suburb of Bendigo (the property), of which the respondents were joint proprietors (the mortgage). The respondents contended that they were entitled to orders for the removal of the mortgage because there was no money owing to the appellant.
3 The appellant brought a counterclaim, alleging that he had entered into an agreement with the respondents in June 2009 to provide them with services to deal with financial difficulties they were then experiencing. He alleged that, because the respondents did not have funds to pay his fees (initially said to be agreed at $25,000 and then later $50,000), he took security for payment of his fees by the respondents entering into the mortgage over the property. The appellant sought orders for possession of the property and an order for payment of monies said to be owing under the agreement said to be secured by the mortgage, being for an amount of $299,126.30.
4 Although the sum claimed in the counterclaim exceeded the jurisdictional limit of the Magistrates’ Court, the proceeding was heard in that court by consent between the parties.

Proceeding in the Magistrates’ Court

5 The proceeding in the Magistrates’ Court was heard over five days between 24 August 2022 and 8 September 2022. Evidence was led from the first respondent, Brett Thompson (the son of the respondents), Norman Jones (the former trustee in bankruptcy of the first respondent) and the appellant.
6 The Magistrate delivered his reasons for judgment on 28 September 2022 in which he upheld the complaint brought by the respondents, and dismissed the appellant’s counterclaim.^[1] On 3 November 2022, the Magistrate made orders giving effect to the reasons for judgment which relevantly included the following:

1. The Court declares that no money is owed by the [respondents] to the [appellant] pursuant to the mortgage registered with the Office of Titles in dealing AJ276855W, against Certificate of Title Volume 09415 Folio 045, which is registered in the [respondents’] names.
2. The Court declares that the [respondents] are entitled to a discharge of the said mortgage from the [appellant].
3. The Court orders that, within 30 days of the date of this order, the [respondents] provide to the [appellant] a form of discharge of mortgage and that the [appellant] thereafter do all things and sign all documents reasonably necessary to procure registration of the said discharge of the mortgage.
4. The Court orders that the [appellant’s] counterclaim against [the respondents], in this proceeding, be dismissed.

1. This proceeding concerns a dispute surrounding the creation of a mortgage in favour of Mr Steve Marks ([the appellant]) over Mr and Mrs Thompson’s (the [respondents’]) residential home in Golden Square, Victoria (Mortgage).
2. The [respondents] seek a discharge of the Mortgage on the basis that no monies are owed under it. [The appellant] seeks to enforce the Mortgage.
3. The Mortgage is said to arise out of an agreement between [the appellant] and [the respondents] in 2009. The terms of that agreement are disputed and are a central issue in the proceeding.
4. [The appellant] contends that [the respondents] retained him, under the business name SME’s R US, to provide business and financial assistance in or around June or July 2009. [The appellant’s] claim is that the [respondents] agreed to pay him a fixed fee of $50,000 (Fee) and to secure payment by granting the Mortgage.
5. Under the terms of the Mortgage, payment of the Fee (as a Principal Sum) was due on 15 August 2014. Interest at 15% per annum was to be paid, monthly in arrears. The Fee was not paid, and [the appellant] now claims the sum of $299,126.30 and an order for possession under the Mortgage.
6. The [respondents] deny there was any agreement with [the appellant]. They maintain the relevant agreement was with an entity known as SME’s R US and that the agreed fee for the services was $20,000. Further, the fees to SME’s R US were not to be secured by way of mortgage but by a caveat.
7. The [respondents] agree they signed the Mortgage. However, they acknowledge they did not read the documents they executed. They deny that [the appellant] lent them the sum of $50,000 and submit that the wording of the Mortgage does not provide for the arrangement claimed by [the appellant].
8. Finally, even if [the appellant’s] version of events is accepted, the [respondents] submit that any debt owed to him is statute barred by operation of section 5(1)(a) of the Limitation of Actions Act 1958 (Vic) (LAA). In my view, [the appellant’s] claim is not statute barred as the relevant limitation period is 15 years pursuant to s 20 of the LAA.
9. Accordingly, the key issue in the proceeding is which entity carried on business under the business name SME’s R US.

(a) the respondents agreed to pay a fixed fee of $50,000 for the appellant’s services in relation to the respondents’ business and personal affairs, which fee was to be secured by the mortgage;
(b) the services were provided in the period from June 2009 to at least August 2012;
(c) the respondents executed a mortgage to secure payment of the agreed $50,000 and interest at 15% per annum; and
(d) the respondents have failed to pay the $50,000 principal or any interest thereon.

11 The Magistrate observed that the terms of the mortgage did not sit easily with the Marks Agreement.^[7] He was not satisfied that the alleged indebtedness said to be created by the Marks Agreement was secured by repayment of the principal sum as set out in the mortgage.^[8] However, even though there was no principal sum provided, he concluded that the potential indebtedness under the Marks Agreement fell within the definition of ‘moneys secured’ under the Memorandum of Common Provisions as they were broad enough to secure payment of debts incurred by the respondents for any services or future services carried out by the appellant.^[9]
12 The Magistrate next addressed the matter of the contracting parties, identifying that the question was whether there was a debt owed to the appellant which was secured by the mortgage. The Magistrate referred to the appellant’s submissions that the mortgage was evidence of the agreement for the respondents to pay $50,000 for services carried out by him and the respondents’ submission that they entered into an agreement with whichever entity was SME’s R Us. The appellant submitted that he was trading as SME’s R Us. To ascertain whether there were any moneys secured under the mortgage, the Magistrate identified the task as determining the identity of the contracting parties.
13 The Magistrate stated that the issue of the contracting parties was relevant to establish who was carrying on business under the name SME’s R Us and that, in doing so, the court was to objectively consider all of the circumstances, including the oral and documentary evidence.^[10] The Magistrate also stated that, as the party alleging the agreement which created indebtedness, the appellant had the onus of proving that he and the respondents were the parties to the Marks Agreement and/or that he was trading under the name SME’s R Us.^[11]
14 The Magistrate then analysed the evidence relevant to the identity of the contracting parties, separately dealing with the evidence before and after the mortgage was executed on 15 August 2009.^[12] The Magistrate concluded that:^[13]

... there is insufficient evidence for the Court to conclude that the work carried out by employees of SME’s R US Pty Ltd was done in their capacity as agents of [the appellant] trading as SME’s R US. Accordingly, I do not consider it is conduct evidencing an agreement between [the appellant] and the [respondents].
For the foregoing reasons, I do not consider that [the appellant] has satisfied his onus of proving that he was trading under the SME’s R US business name in 2009. The oral evidence of [the appellant] that he was using that business name together with the signed mortgages and caveat provide some support for [the appellant’s] conclusion. However, that evidence is equally contradicted by the correspondence and bankruptcy documents set out above.
After considering the totality of the evidence, the Court cannot be satisfied, on the balance of probabilities, that [the appellant] was trading under the SME’s R US business name.

15 The Magistrate next addressed the question of the amount of the fee agreed between the contracting parties, noting that it was not strictly necessary to do so given his finding about the contracting parties.^[14] He found that the documentary and oral evidence did not support an agreed fee of $50,000, despite the fact that a principal of $50,000 was provided for in the mortgage.^[15] The Magistrate based his conclusion on the following matters:^[16]

(a) a letter sent on 10 September 2009 on SME’s R US letterhead and which bore the ACN of Multimedia Marketing to [the first respondent] included repayments calculated on $27,500 not $50,000;

(b) an email sent on 7 October 2009 by the appellant to the manager at Bendigo Bank Limited requested consent to register a mortgage of $27,500 not $50,000;

(c) a spreadsheet prepared by the appellant or one of his staff recorded the sum of $50,000 as advanced on 7 October 2009;

(d) the mortgage originally bore the date 7 October 2009, which was replaced with 15 August 2009;

(e) an earlier draft of [the first respondent’s] Statement of Affairs recorded [the appellant] as a secured creditor who owed $27,500; and

(f) [the first respondent’s] Statement of Affairs dated 9 July 2010 recorded [the appellant] as a secured creditor for $42,500.

16 The Magistrate continued:^[17]

Given the effluxion of approximately 13 years from the events in question, I consider the contemporaneous documents are the most probative evidence. The one contemporaneous document (other than the Mortgage itself) recording the $50,000 loan was the letter of 31 August 2009. As stated above, I do not accept its contents. In respect of the 10 February 2011 letter and [the second respondent’s] Statement of Affairs, I place more weight on the documents contemporaneous to the alleged agreement in 2009.

17 Having made these findings, the Magistrate concluded that there were no moneys owing under the mortgage.^[18]

Notice of appeal

18 Section 109(1) of the Magistrates’ Court Act 1989 Act provides that an appeal from an order of the Magistrates’ Court may only be brought on a question of law. It has been observed that the ‘existence of a question of law is not only a precondition to the right of appeal but also the subject of the appeal itself’.^[19]
19 At the commencement of the hearing of the appeal, I raised with counsel for the appellant my concern that three of the four purported questions of law identified in the notice of appeal did not appear to properly raise a question of law. Counsel for the appellant sought leave to file an amended notice of appeal which amended the questions of law. I granted leave to file the amended notice of appeal because the amended questions of law did not affect any substantive change in the appellant’s submissions previously filed and because the grounds of appeal remained unaltered. Further, the respondents had not taken any objection to the formulation of the purported questions of law in the notice of appeal. In the circumstances, I did not consider that the respondents were prejudiced by the grant of leave to amend.
20 The amended notice of appeal contained four questions of law and supporting grounds of appeal as follows:

1. Question of Law (Question 1)

Did the learned Magistrate err in law by failing to afford the Appellant procedural fairness by:

(a) allowing the Respondents to rely on a case which had not been pleaded or run at trial;

(b) making findings on a case which had not been pleaded or run at trial;

(c) incorrectly holding that the Appellant bore the onus of establishing that he carried on business under the business name SMEs R Us?

Grounds of Appeal

(a) The Respondents did not plead that the Appellant was not carrying on business under the name SME’s R US;

(b) The Statement of Key Matters in Dispute filed with the Court below in accordance with Magistrates’ Court Practice Direction 19 of 2020 did not state that the identity of the person or entity carrying on business under the name SME’s R Us was in dispute;

(c) It was not put to the Appellant in cross-examination that at the relevant, or any, time:

(i) he was not carrying on business under the name SME’s R Us;

(ii) MultiMedia Marketing Pty Ltd, or any other entity, was carrying on business under the name SME’s R Us;

(d) The Respondents led no evidence that at the relevant time they:

(i) were dealing with any person other than the Appellant in relation to the business carried on under the name SME’s R Us and the services being provided to them;

(ii) had an understanding that some entity other than the Appellant was carrying on business under the name SME’s R Us;

(e) By reason of the matters set out in sub-paragraphs (a) to (d):

(i) the issue of who was carrying on business under the name SMEs R Us was not properly before the Court below; and

(ii) the Appellant was not on notice of the case sought to be made by the Respondents,

as a result of which it was not open to the learned Magistrate to determine that the Respondents entered into an agreement with anyone other than the Appellant;

(f) The learned Magistrate incorrectly failed to draw an adverse inference against the Respondents based on the unexplained failure of the Second Respondent to give evidence or appear at the hearing;

(g) The learned Magistrate incorrectly applied the law in holding that the Appellant bore the onus of establishing that he carried on business under the name SME’s R US when the Respondents, as [the respondents] below, bore the onus of proving their case;

(h) By incorrectly holding that the Appellant bore the onus of proof, the learned Magistrate further incorrectly failed to draw an adverse inference against the Respondents based on the unexplained failure of the Second Respondent to give evidence or appear at the hearing;

(i) The Respondents did not articulate, properly or at all, a case that the Appellant was not carrying on business under the name SME’s R US until closing submissions and the Appellant was denied natural justice by not having the opportunity to:

(i) lead evidence in relation to that issue;

(ii) consider joining MultiMedia Marketing Pty Ltd to the proceeding,

as a result of which it was not open to the learned Magistrate to determine that the Respondents entered into an agreement with anyone other than the Appellant.
2. Question of Law (Question 2)
Did the learned Magistrate fail to disclose his path of reasoning in rejecting the contention that the Respondents entered into an agreement with the Appellant?
Grounds of Appeal

(a) In paragraph 115 of the Reasons for Judgment, the learned Magistrate set out that the proposition which needed to be determined was whether the Appellant and the Respondents were the parties to the relevant agreement and/or the Appellant was trading under SME’s R US;

(b) Having identified the two part question, the learned Magistrate’s reasons only deal with the second question, namely whether the Appellant traded under the name SME’s R Us, and failed to address the question of whether the agreement was between the Appellant and the Respondent.

3. Question of Law (Question 3)
Did the learned Magistrate err in finding that there was no agreement between the parties for the Respondents to pay $50,000, or any other amount, for the Appellant’s services when such a finding was not open on the evidence?
Grounds of Appeal

(a) In the event the Ground of Appeal outlined in paragraph 1 above is upheld, the Respondents are bound by the terms of the Mortgage they signed which provided they were indebted to the Appellant in the sum of $50,000;

(b) Based on the Mortgage in the sum of $50,000 the Appellant is only obliged by the provisions of the Transfer of Land Act 1958 to provide a Discharge of Mortgage upon receipt of payment of all sums due under the Mortgage.

(c) Alternatively, the finding is not open on the evidence given:

(i) the Respondents admitted to engaging the Appellant (trading as SME’s R Us) and agreeing to pay a fee for his services;

(ii) the Respondents admitted that they agreed to pay at least $20,000 to the Appellant for his services;

(iii) the Respondents admitted signing two Mortgages, one in the sum of $27,500 and one in the sum of $50,000, in favour of the Appellant;

and as a result no reasonable tribunal could have determined the parties did not agree to a fee of $50,000;

(d) The learned Magistrate failed to determine an issue in dispute in the proceeding, namely what fee had been agreed between the parties despite the evidence that:

(i) the Respondents admitted to engaging the Appellant (trading as SME’s R Us) and agreeing to pay a fee for his services;

(ii) the Respondents admitted that they agreed to pay at least $20,000 to the Appellant for his services;

(iii) the Respondents admitted signing two Mortgages, one in the sum of $27,500 and one in the sum of $50,000, in favour of the Appellant.

4. Question of Law (Question 4)
Did the learned Magistrate misapply the rule in Jones v Dunkel in holding that no adverse inference should be drawn against the Respondents based on the failure of the Second Respondent to give evidence?
Grounds of Appeal

(a) The Second Respondent failed to give evidence or appear at the hearing;

(b) The Respondents’ evidence was that the Second Respondent was present at the first meeting between the parties, and was the person responsible for maintaining the paperwork and records in relation to the Respondents’ business and personal financial affairs;

(c) The unexplained failure of the Second Respondent to give evidence regarding the question of which parties entered into an agreement, and what amount of fees was agreed between the parties, should have led to a finding in favour of the Appellant on those points.

21 Before considering the questions of law raised by the amended notice of appeal, I note that, on 15 June 2023, after the hearing of the appeal, the solicitors for the appellant informed the Court that the appellant had died on 29 May 2023. On 24 July 2023, the appellant’s solicitors informed the Court that the executors named in the appellant’s will did not intend to apply for probate and that the appellant’s estate therefore did not have a representative. The appellant’s solicitors have, however, agreed to assist the Court by continuing to act as amicus curiae

Question 1 – denial of procedural fairness

22 The primary ground of appeal advanced by the appellant at the hearing was whether the Magistrate had erred by failing to afford the appellant procedural fairness by:

(a) allowing the respondents to rely on a case which had not been pleaded or run at trial;
(b) making findings in a case which had not been pleaded or run at trial; and
(c) incorrectly holding that the appellant bore the onus of establishing that he carried on business under the business name SME’s R Us.

Appellant’s submissions

23 A central contention advanced by the appellant was that the respondents did not plead that the appellant was not carrying on business under the name SME’s R Us. It was submitted that neither the Statement of Claim, the Amended Reply nor the Defence to Counterclaim pleaded that the respondents did not enter into an agreement with the appellant, or that the respondents entered into an agreement with an entity other than the appellant.
24 In support of this contention, the appellant referred to paragraph 5 of the Statement of Claim which pleaded that ‘No money is now owing under the mortgage’. It was submitted to be implicit in the word ‘now’ that, at some point, money was owed under the mortgage. That the mortgage was between the appellant and the respondents further supported the proposition that the agreement was between those parties. It was submitted that the Statement of Claim did not plead that there was never any money owing under the mortgage which would be the case if the respondents sought to advance the argument that the services to be provided were going to be provided by some person other than the appellant.
25 The appellant also relied upon the following paragraphs of the Amended Reply filed by the respondents (and which were repeated in the Defence to Counterclaim):

(a) that the appellant always used the name ‘Steve Marks’ in their dealings;^[20]
(b) the agreement was entered into between the respondents and an entity called SME’s R Us;^[21]
(c) the first respondent ‘now knows’ that SME’s R Us ‘was controlled and run by the defendant’.^[22]

26 The appellant submitted that the references to SME’s R Us in the Amended Reply were insufficient to put him on notice that the case being advanced was that it was not the appellant, but someone else, in relation to whom a contract was made. A fair reading of the pleadings showed that the respondents’ case was that no work was performed for them as alleged by the appellant. The respondents’ case was not that someone other than the appellant did the work, rather that no one did any work of the nature alleged by the appellant. That analysis was said to be supported by the correspondence between the parties’ solicitors prior to the issue of proceedings and by the evidence at trial.
27 The appellant emphasised that, on numerous occasions during the trial, the appellant informed the court that he went to trial on the basis of the pleadings and expected the respondents to be limited to their pleaded case.
28 The appellant submitted that, if the respondents wished to defend the counterclaim on the basis that MultiMedia Marketing Pty Ltd was the true contracting party, r 13.02(3) and (5) of the Magistrates’ Court General Civil Procedure Rules 2020 obliged the respondents to have set out that claim. Further, it was submitted that the objection to the respondents’ deviation from their pleaded case was maintained until the end of trial, and that litigants are bound by the forensic decisions they make in the course of trial. No application to amend was made by the respondents during the course of the trial.
29 The appellant also relied upon a ‘Statement of Key Matters in Dispute’ filed in accordance with the Magistrates’ Court Practice Direction 19 of 2020 and which was agreed by the parties prior to the commencement of the hearing before the Magistrate. The document did not identify that one of the key issues in dispute was whether the agreement was with the defendant or with some other entity, or that the identity of the person or entity carrying on business under the name SME’s R Us was in dispute. All the document relevantly put in issue was what services were actually provided by the appellant on behalf of SME’s R Us to the respondents.^[23] Although the document referred to both the appellant and SME’s R Us, this was insufficient to put the appellant on notice that the case being advanced was that MultiMedia Marketing Pty Ltd was the entity who was trading as SME’s R Us. To the contrary, the Statement of Key Matters in Dispute confirmed that the respondents’ case was that no work was performed at all and therefore no fee was payable.
30 The appellant also relied upon the substance of the matters about which he was cross-examined to support the proposition that the respondents’ case at trial was limited to contending that the appellant had not done the alleged work and was not entitled to any payment. The cross-examination of the appellant was extensive and questions were put to him regarding companies identified as MultiMedia Marketing Pty Ltd, People R Us Pty Ltd and SME’s R Us Pty Ltd, as well as various letters on the letterhead of SME’s R Us. However, it was never put to the appellant that some person other than him was carrying on the business under the name SME’s R Us, or that MultiMedia Marketing Pty Ltd, or any other identified company, was using the name SME’s R Us.
31 Further, to the extent that the appellant was cross-examined by reference to documents relating to MultiMedia Marketing Pty Ltd, it was submitted that the stated basis for that material being advanced was in support of an attack on the appellant’s credibility. The respondents sought to establish that the appellant was either engaged in or associated with businesses that had questionable business practices, consistent with the respondents’ case that the appellant had not done the alleged work. In written submissions about the relevance of documents, the respondents submitted that various documents were relevant to the appellant’s credibility. The appellant’s submissions in turn made clear that the respondents’ pleaded case did not raise the issue of some other entity being a contracting party and that the appellant would hold the respondents to their pleaded case.
32 The appellant also submitted that the respondents did not lead any evidence that, in the course of their dealings with the appellant, they knew about, or relied upon, the registration of the business name SME’s R Us. There was accordingly no evidence from the respondents which would support the proposition that the true contracting party was some other entity other than the appellant. The appellant relied upon the following statement by the Court of Appeal of New South Wales in Dennis Pethybridge v Stedikas Holdings Pty Ltd:^[24]

In Aikman v Brown (Trading as Capital Travel Service) (1973) 1 ACTR 121 the plaintiff had attended a travel agency business conducted under the name of Capital Travel Service, and paid for some air tickets. That business was in fact conducted by a company that, by the time of the trial, had gone into liquidation. The registered proprietor of the business name was the defendant, who was an employee of that company, but did not carry on the business in his own right. The defendant was one of the employees with whom the plaintiff had dealt, and to whom she had paid part of the price of the air tickets. The plaintiff did not receive any air tickets, and sued the defendant to recover the money she had paid. The plaintiff gave no evidence of knowing about, or relying upon, the registration of the defendant as proprietor of the business name. Fox J, following Press v Mathers and Re Johnson & Anor held, that the action failed. ...

33 The appellant therefore submitted that, in circumstances where the respondents did not plead that some other entity was the contracting party and did not lead any evidence as to reliance on any company name or ACN appearing in correspondence, it was not open to the Magistrate to find that some other entity other than the appellant was the contracting party.
34 The appellant submitted that, if he had been on notice that the respondents intended to advance a case that some other entity was the contracting party, he could have called evidence from representatives of the alleged companies to rebut the proposition that they were carrying on business under the name SME’s R Us, or alternatively those entities could have been joined as alternative counterclaimants.
35 The appellant challenged the Magistrate’s holding that no adverse inference could be drawn from the failure to call the second respondent to give evidence. It was submitted that this finding ignored the importance of the second respondent in the events giving rise to the contract and subsequently. It was submitted that the first respondent accepted in evidence that it was the second respondent who handled the paperwork in their business and was responsible for administration. The second respondent was said to have been present at the initial meeting where discussions regarding engagement were held with the appellant and it was the second respondent who then provided all relevant paperwork to the appellant during the provision of services. Given the respondents’ case was whether or not work was performed by the appellant, the second respondent’s evidence was pivotal to that issue. However, her evidence was also said to be critical to the issue ultimately relied upon by the Magistrate, namely, whether the respondent contracted with the appellant or with some other entity. The failure of the second respondent to say what she was told and what she relied upon in entering into the contract means there was no evidence to contradict the appellant’s evidence that he was trading as SME’s R Us.
36 As to the question of onus of proof, the appellant submitted that, as the plaintiffs in the case, the respondents bore the onus of proving the relevant allegations, namely, that they did not owe any money to the appellant on their pleaded case that no work was done. Even if the identity of the contracting party was properly in issue, the respondents bore the burden of establishing who it was that they contracted with, but the Magistrate erred in casting the onus on the appellant. Contrary to the reasons for judgment, the decision of the High Court in Ermogenous v Greek Orthodox Community of SA Inc^[25] was authority for the proposition that, if the issue of who the respondents contracted with was a live one, it was for the respondents to establish that they entered into a contract with an entity other than the appellant. The appellant also relied upon the following statements of principle by Tadgell JA in Transport Industries Insurance Co Ltd v Longmuir:^[26]

[T]o assess the evidence in a case like this by reference to various individually-pleaded particulars, as though running through items on a check list, is apt to mislead. The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details: cf Hall (Inspector of Taxes) v Lorrimer; Shepherd v R.
In a civil case like this, where there is no direct evidence of a fact that a party bearing the onus of proof seeks to prove, “it is not possible to attain entire satisfaction as to the true state of affairs”: Girlock (Sales) Pty Ltd v Hurrell. In such a case, however, the law does not require proof to the ‘entire satisfaction’ of the tribunal of fact. A definition of the sufficiency of circumstantial evidence in a civil case to support proof by inference from the directly proved facts was given by the High Court in the unreported case of Bradshaw v McEwans Pty Ltd in a passage since repeatedly adopted: e.g. Luxton v Vines; Holloway v McFeeters; Jones v Dunkel; Girlock's case. The relevant passage in Bradshaw's case is this:
Of course as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise ...^[27]

37 Having regard to these statements of principle, the appellant referred to the following paragraph of the reasons for judgment:^[28]

For the foregoing reasons, I do not consider that [the appellant] has satisfied his onus of proving that he was trading under the SME’s R US business name in 2009. The oral evidence of [the appellant] that he was using that business name together with the signed mortgages and Caveat provide some support for [the appellant’s] conclusion. However, that evidence is equally contradicted by the correspondence and bankruptcy documents set out above.
After considering the totality of the evidence, the Court cannot be satisfied, on the balance of probabilities, that [the appellant] was trading under the SME’s R US business name.

38 The appellant submitted that, in this finding the Magistrate erred in reversing the onus of proof. Where there was evidence from the appellant and supporting documentary evidence, together with contradictory material, the Magistrate should have held that the respondents had failed to establish that they had entered into a contract with an entity other than the appellant. As the mortgage and other documents established that some form of agreement was entered into, it was insufficient for the respondents to merely cast doubt on whether they entered into a contract with the appellant; it was necessary for them to positively establish who it was that they contracted with.
39 Further, if the correct position was that the respondents carried the onus of proving the terms of the contract, the failure to call evidence from the second respondent became more damaging for the respondents. The absence of any evidence from a party present at the original meeting between the parties left a void in the respondents’ evidence. Taking into account the onus borne by the respondents to prove their case, the inference that the second respondent’s evidence would not have assisted the respondents’ case was sufficient to support a finding that the respondents had failed to establish that the contract was entered into with some other entity than the appellant.
40 The appellant also relied upon correspondence between the parties’ solicitors in April - May 2020, before the proceeding in the Magistrates’ Court was commenced. In that correspondence the respondents’ solicitors set out the position that no loan was ever made by the appellant to the respondents, that the mortgage was to defraud the respondents’ creditors in a looming bankruptcy, that no funds were ever paid by the appellant to the respondents in consideration of the mortgage, and that the work performed by the appellant was minimal and nothing like the fee of $50,000. The appellant was therefore on notice before the proceeding commenced that the respondents’ position was that the appellant’s claim should fail because the mortgage was a sham and the appellant did not do any work in respect of the claim for $50,000.
41 The appellant referred to a number of aspects of the conduct of the trial before the Magistrate in support of the submission that he was not on notice that an issue at trial was whether the agreement entered into by the respondents was with him or with some other entity.

(a) The Magistrate disallowed the use of tendency evidence proposed by the respondents in relation to the appellant’s prior convictions. The evidence was sought to be relied upon in aid of the respondents’ case that the mortgage was a sham. In this Court it was submitted that this confirmed the case the appellant was called upon to meet at trial was whether or not he had performed any work.
(b) There was no suggestion in the first respondent’s evidence in chief that his case was that he thought he was dealing with some person or entity other than the appellant. Likewise, his cross-examination was directed at whether or not work was done by the appellant, as distinct from who was doing the work.
(c) Reference was made to the appellant’s evidence in chief that he was a sole trader who personally conducted a business providing consulting services and that in 2010 he incorporated his services into SME’s R Us Pty Ltd. It was not put to him in cross-examination that he was not, in fact, trading under the name SME’s R Us, and that somebody else was. No distinction was drawn between the appellant and SME’s R Us as the provider of services; the controversy revealed by his cross-examination was again whether or not the services were in fact provided.
(d) Objections were taken to the Magistrate receiving into evidence certain parts of the appellant’s witness statement. Counsel for the appellant submitted that the relevant parts of the witness statement were admissible because they were relevant to whether or not work had been done by the appellant and its value. In response, counsel for the respondents confirmed that one of the disputes concerned whether or certain work was performed by the appellant; there was no suggestion that there was any controversy as to the true identity of the contracting parties.
(e) In cross-examination, the appellant was asked questions which in substance reflected his evidence in chief, namely, that he was a sole trader between 2007 and 2010, that he was using the business name SME’s R Us and that he incorporated SME’s R Us Pty Ltd in 2010. The appellant was not challenged on any of this evidence and it was not put to him that some other person was carrying on business in the name of SME’s R Us; the coincidence between the appellant and SME’s R Us was assumed.
(f) Before the Magistrate, the respondents attempted to lead evidence from two witnesses about their previous dealings with the appellant. Having been asked to identify the relevance of the proposed evidence, counsel for the respondents informed the Magistrate that the facts in issue to which the proposed evidence related were what work was done by the appellant and its value. The Magistrate then received written submissions on the issue of the admissibility of the evidence proposed to be adduced from the two witnesses. The written submissions subsequently filed on behalf of the respondents elaborated in more detail as to how it was said that that the proposed evidence was relevant to the work performed by the appellant and its value.

Respondents’ submissions

42 The respondents submitted that the pleadings made sufficiently clear that the identity of the person with whom they contracted was in issue. They relied on paragraph 2(a) of the Amended Reply which stated:^[29]

The only agreement entered into at that time was between [the respondents] and an entity called SME’s R Us; ...

The Magistrate ruled that the pleadings, and in particular paragraph 2(a) of the Amended Reply, did call in issue the identity of the contracting parties.
43 The respondents also relied upon the authority of Vale v Sutherland^[30] where the High Court concluded that it was open to a trial judge to determine the case in the manner in which he did, despite the fact that the defence did not properly raise the question of the value of certain properties so as to squarely raise the issue consistent with the rules of pleadings. Despite this, the Court considered that the hearing was conducted on the basis that the property values in question were in issue as this was made clear in openings, cross-examination and in closing addresses.^[31] The Court referred with approval to Dawson J’s remarks in Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd as follows: ^[32]

But modern pleadings have never imposed so rigid a framework that if evidence which raises fresh issues is admitted without objection at trial, the case is to be decided upon a basis which does not embrace the real controversy between the parties. ... cases are determined on the evidence, not the pleadings.^[33]

44 Relying upon the judgment of the Full Federal Court in Betfair Pty Ltd v Racing New South Wales,^[34] the respondents submitted that the basic function of pleadings is to identify the issues which require the court’s attention and determination, the question being whether a party knows the nature of the case it has to meet. Mere infelicity of drafting will rarely be allowed to defeat a case on its merits if the merits have been made apparent on the evidence without unfairness to the other party. Reliance was also placed on Rawson v Hobbs^[35] for the proposition that, where the pleadings contain a sufficient statement of facts, even if the conception of the cause of action may be open to criticism, the Court is not confined in granting relief to that which a plaintiff has specified.
45 Consistent with these principles and the proposition that cases are decided on the evidence not the pleadings, the respondents referred to the following evidence which was before the Magistrate:

(a) A letter dated 10 September 2009 from the appellant to the first respondent on SME’s R Us’ letterhead which contained an ACN number which was the relevant number for MultiMedia Marketing Pty Ltd.
(b) The historical timeline for a company search in respect of MultiMedia Marketing Pty Ltd which recorded that the business name SME’s R Us was added to it on 15 May 2009, and removed on 21 May 2010.
This evidence was said to demonstrate that, when the mortgage and the contract between the parties was entered into in July 2009, MultiMedia Marketing Pty Ltd was trading under the business name SME’s R Us. Before the Magistrate, the appellant was cross-examined about various company searches and generally agreed with their contents. His evidence was that he could not speak for MultiMedia Marketing Pty Ltd and that he was not a director or shareholder of it.

46 The respondents also contested the proposition that it was never put to the appellant at trial that he was not conducting business under the name SME’s R Us. They referred to the transcript of the appellant’s cross-examination which recorded that he was asked if he agreed that ‘if the mortgage was signed on 15 August 2009, that was a time when MultiMedia Marketing Pty Ltd was using the business name SME’s R Us’, to which he replied in the negative.
47 In their closing submissions before the Magistrate, the respondents submitted that the court would need to make a finding as to whether they engaged MultiMedia Marketing Pty Ltd or the appellant, and it was submitted that there was sufficient evidence before the Court to find that they engaged the former.

Consideration

48 The key legal principles relevant to the appellant’s complaints that he was denied procedural fairness are not controversial and were conveniently set out by the Full Court the Federal Court in Betfair as follows:^[36]

The basic function of pleadings is to identify the issues which require a court’s attention and determination: ... In Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Aust) Pty Ltd [1991] FCA 557; (1991) 217 ALR 171 French J, when a member of this court, said (at 173 ):
A material fact is one which is necessary to formulate a complete cause of action. It is to be distinguished from particulars which are not part of the pleading. Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet. There are certain levels of generality in pleading which while they may bring in all facts necessary to establish a cause of action, are insufficient for that purpose: ...
(Emphasis added.)^[37]
Pleadings provide a structure for a proceeding for the purpose of the attainment of justice. The pleadings identify the material facts upon which the parties rely and the issues the parties seek to have determined. Because the pleadings require the parties to identify all material facts and issues, the pleadings provide the benchmark for discovery before trial and the admissibility of evidence at trial. Parties are required to plead the material facts upon which the party relies and the issues which that party seeks to have resolved for the further purpose of giving the opposing party fair notice of the case to be met at trial thereby minimising any risk of injustice by taking the opposing party by surprise. Pleadings incidentally are the record of the proceeding for the purpose of any subsequent arguments relating to res judicata or issue estoppel or any like issue.
At trial a party is entitled to have the opposing party confined to that party’s pleadings because the first party is entitled to come to trial to meet only the issues raised on the pleadings. However, if the first party does not seek to so confine the opposing party but allows the other party to raise other material facts and issues for the determination of the court, then in our opinion the court is permitted and possibly obliged to decide the proceeding on the further material facts and issues raised and addressed at trial: ... If it were otherwise, the party who has failed to plead all of the material facts or issues upon which the party’s case relies, but has brought those material facts or issues to the attention of his or her opponent at trial, would be denied natural justice if at the end of the trial the court decided the proceeding on the pleadings without notice to that party. The first party in those circumstances would have been denied the opportunity to apply to amend those pleadings so as to formalise what was in fact addressed at the trial.
Pleadings are a means to an end and not an end in themselves: ... As early as 1916 Isaacs and Rich JJ said, in Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81; (1916) 22 CLR 490 at 517 :
Undoubtedly, as a general rule of fair play, and one resting on the fundamental principle that no man ought to be put to loss without having a proper opportunity of meeting the case against him, pleadings should state with sufficient clearness the case of the party whose averments they are. That is their function. Their function is discharged when the case is presented with reasonable clearness. Any want of clearness can be cured by amendment or particulars. But pleadings are only a means to an end, and if the parties in fighting their legal battles choose to restrict them, or to enlarge them, or to disregard them and meet each other on issues fairly fought out, it is impossible for either of them to hark back to the pleadings and treat them as governing the area of contest.
(Emphasis added.)^[38]
Approached in these terms, the question is whether the respondents knew the nature of the case they had to meet. In our opinion, identifying the legislative and other measures under attack, and asserting that s 92 was infringed by those measures, necessarily incorporated reliance on the protection guaranteed by s 92 and the characteristics of the identified measures which were alleged to constitute its infringement.

49 The critical procedural background to that part of the reasons for judgment where the Magistrate determined the question of the identity of the contracting parties,^[39] was the Magistrate’s ruling, on the third day of the trial, that the pleadings, and in particular paragraph 2(a) of the Amended Reply, called in issue the identity of the contracting parties.
50 The Magistrate did not provide reasons for this ruling, or otherwise elaborate upon it. With respect to the Magistrate, the ruling was in error.
51 It is necessary to set out in a more fulsome way the relevant paragraphs of the pleadings.

(a) In paragraph 6 of the Statement of Claim, the respondents pleaded that they had ‘requested the defendant to provide a duly executed discharge of the Mortgage, in registrable form. Alternatively, they do so now’.
(b) In response, the appellant pleaded^[40] as follows:

[The appellant] admits that [the respondents] have requested [the appellant] provide a duly executed discharge of the Mortgage but denies they are entitled to same for the reasons to be set out in a counterclaim to be filed in the proceeding, which counterclaim will exceed the jurisdiction of this Court and will assert that:

(a) in June 2009 the parties entered into an agreement for [the appellant] to provide services and advice to [the respondents] in relation to [the respondents’] business and personal financial affairs;

(b) [the respondents] retained [the appellant] and agreed to pay to [the appellant] a fixed fee in the sum of $50,000 for all services to be provided by [the appellant] in relation to [the respondents’] business and personal financial affairs including negotiating with statutory and trade creditors, refinancing and consolidating assets, assistance with legal disputes, advice on business structure and advice on workforce matters;

(c) payment of the fixed fee of $50,000 was secured by the Mortgage executed on 15 August 2009;

(d) [the appellant] provided the agreed services in the period from June 2009 to at least August 2013;

(e) [the respondents] have failed to pay the fixed fee or any part therefore, and [the appellant] has calculated interest on the fixed fee in accordance with the provisions of the Mortgage in the sum of $249,126.30 to 15 August 2021; ...

(c) In response to this paragraph of the Defence, paragraph 2 of the respondents’ Amended Reply contained 12 paragraphs said to constitute ‘the true facts surrounding the creation of the Mortgage’ including, in para (a), that:

the only agreement entered into at that time was between [the respondents] and an entity called SME’s R Us;

52 Although paragraph 2(a) of the Amended Reply does not specify the legal entity called SME’s R Us with whom the respondents allege they entered into an agreement, it is not pleaded that the appellant was not a party to that agreement, and/or that MultiMedia Marketing Pty Ltd was in fact the party with whom they entered into the agreement. These were the material facts which it was necessary for the respondents to plead if they wished to defend the counterclaim on the basis that MultiMedia Marketing Pty Ltd was the true contracting party (or if they wished to raise this by way of reply to the appellant’s defence to their statement of claim). This is clear from r 13.02(3) and (5) of the Magistrates’ Court General Civil Procedure Rules 2020 which relevantly provide:

(3) A defendant who states that a fact stated in the statement of claim is denied must—

(a) give reasons for denying the fact; and

(b) if the defendant intends to prove a fact different from that stated in the statement of claim, state, with necessary particulars, the fact that the defendant intends to prove.

...

(5) The defendant must state specifically, with particulars, any fact or matter which—

(a) makes the claim of the plaintiff not maintainable; or
(b) if not stated specifically, might take the plaintiff by surprise; or
(c) raises questions of fact not arising out of the statement of claim.

These provisions reflect the essential principle that material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet.^[41]
53 The omission of the above material facts from the respondents’ pleadings was reflected in the contents of the agreed ‘Statement of Key Matters in Dispute’ filed before the hearing before the Magistrate. That document did not identify that one of the key issues in dispute was whether the agreement was with the appellant or with some other entity, or that the identity of the person or entity carrying on business under the name SME’s R Us was in dispute.
54 Although cases are to be determined on the evidence and not the pleadings, the important function of pleadings is not thereby to be ignored. As the Full Court stated in Betfair, ‘At trial a party is entitled to have the opposing party confined to that party’s pleadings because the first party is entitled to come to trial to meet only the issues raised on the pleadings’.^[42] It is only if the first party does not seek to confine the opposing party to their pleadings, but allows the other party to raise other material facts and issues, that a court is permitted, or possibly obliged, to decide the proceeding on the further material facts and issues raised at trial.
55 The hearing before the Magistrate was conducted by reference to the pleadings. Counsel for the appellant was assiduous in seeking to confine the respondents to their pleadings. In that situation, if the respondents wished to conduct their case outside the pleadings, it was incumbent on them to seek leave to amend before the Magistrate. No such application was made.
56 The appellant must accordingly succeed in relation to the first question of law raised in the amended notice of appeal. It is unnecessary to examine the various other submissions advanced in relation to Question 1.

Questions 2 & 4

57 There is no substance to Question 2 raised by the appellant (that the Magistrate failed to disclose his path of reasoning in rejecting the contention that the respondents entered into an agreement with the appellant). The path of reasoning adopted by the Magistrate is sufficiently apparent from the summary of the reasons for judgment referred to in [12]-[14] above.
58 Given my conclusions in relation to Question 1 and Question 3 (considered below), it is unnecessary to determine Question 4.

Question 3

59 The posited question of law raised by Question 3 – that the Magistrate erred in finding that there was no agreement between the parties for the respondents to pay $50,000, or any other amount, for the appellant’s services when such a finding was not open on the evidence - misstates the reasons for judgment.
60 After erroneously determining the issue of the identity of the contracting parties adversely to the appellant by failing to afford him procedural fairness, at the conclusion of the reasons for judgment the Magistrate recorded, under the heading ‘Agreed Fee’, that, given his findings as to the contracting parties, it was:^[43]
... not strictly necessary to determine what fee was agreed. For the sake of completeness, my determination on [sic] is as follows.
The Magistrate then referred to the parties’ evidence on the amount of the fee, as well as six particular documents, finding that he did ‘not consider that the documents read in conjunction with the oral evidence support an agreed fee of $50,000’.^[44] The Magistrate then set out specific reasons in support of this finding, notwithstanding that a principal sum of $50,000 was provided for in the Mortgage document itself.
61 There is no substance to the claim that the above finding was not open on the evidence. Nor can it be said that the respondents were bound by the terms of the Mortgage simply because it recorded a principal sum of $50,000; the appellant’s own evidence was that he did not lend a principal sum to the respondents, and there was no evidence that the respondents owed the appellant a debt of $50,000 or any other amount.^[45]
62 Despite stating in [145] of the reasons for judgment that he would proceed to determine the agreed fees between the parties, even though it was not strictly necessary to do so, it is apparent that the Magistrate did not in fact make a finding about that matter; his only relevant finding was to reject the proposition that the agreed fee was $50,000. The Magistrate in fact referred to evidence from the first respondent that there was discussion of a fee in the amount of $20,000. Nevertheless, the Magistrate did not make any findings about the agreed fee, except that it was not in the amount of $50,000. Although strictly this issue did not require determination because of the Magistrate’s conclusion on the contracting parties, having erred in law in making that finding, the incomplete nature of the Magistrate’s findings of fact on the agreed fee provides a proper basis for the proceeding to be remitted to the Magistrate.

Disposition

63 For the above reasons, the appropriate course is for the proceeding to be remitted to the Magistrate for determination in relation to the amount of the fee agreed between the parties. Given the matters referred to in [61], it cannot be said that the only possible finding open to the Court is that the agreed fee was $50,000.
64 The respondents also sought that the proceeding should be remitted to the Magistrate to determine a new point under the Limitation of Actions Act 1958 which was not raised at trial. The point is that, although s 20(1) of the Limitation of Actions Act 1958 specifies a limitation period of 15 years in respect of an action brought to recover any principal sum of money secured by a mortgage or other charge on property, s 5(7) of the Act provides that no action shall be brought to recover any arrears of interest in respect of any sum of money payable in respect of a specialty or a mortgage after the expiration of six years after they became due. Because a claim by way of counterclaim is deemed to have commenced on the same date as the action in which the counterclaim is pleaded,^[46] in this proceeding, it is contended that a claim for arrears of interest due more than 6 years before the proceeding was commenced on 12 April 2021 is barred by s 5(7) of the Limitation of Actions Act 1958.
65 The respondents submitted that they should be entitled to raise this claim because it would not require any further evidence to be adduced, and because it was said to have a substantive effect on their rights and interests; it was submitted that they face a claim for some $357,848.39 in respect of the Mortgage which recited a loan for a principal sum of $50,000 which was never lent by the appellant.
66 The appellant advanced several reasons why s 5(7) of the Limitation of Actions Act 1958 does not operate to limit his claim to only six years’ interest. Reliance was also placed on the judgment of Derham AsJ in Hall v Hall & Ors.^[47]
67 In Chan v Liu,^[48] the Court of Appeal considered the authorities for the proposition that, ordinarily, a party may not be permitted to raise a point, or rely on an argument on appeal, that was not put before the Court at first instance.^[49] The Court of Appeal observed that:^[50]

As a matter of policy, and the orderly administration of justice, it is undesirable that parties be permitted to raise arguments on appeal that were not agitated before the primary judge.

68 Bearing these principles in mind, as in Chan v Liu, I consider that in the circumstances of this case it is appropriate for the respondents to be able to raise the new limitations point before the Magistrate. For the reasons I have given, it is necessary to remit the matter to the Magistrate in any event to determine what, if any, fee was agreed between the parties. Because of his decision in relation to the identity of the parties of the agreement, the Magistrate found it unnecessary to decide all of the issues, including the amount of any debt and the amount of any default interest. As the first of these matters needs to be determined by the Magistrate, there is no additional prejudice to the appellant in the new limitations point also being determined. There is no suggestion that the point will require any additional evidence, or affect the evidence which was led at trial. It is also apparent that the point may have significant implications for the parties. Given that the issue will only presumably require determination if the Magistrate finds that a fee, of whatever amount, was agreed between the parties, it is appropriate for the issue to be remitted to the Magistrate rather than be determined by this Court as presently constituted.
69 For the above reasons, the appeal must be allowed and the orders of the Magistrate set aside. The Court will remit the proceeding to the Magistrates’ Court (constituted by the Magistrate before whom the same was originally heard) for reconsideration in accordance with these reasons and for determination in relation to the amount of the fee agreed between the parties and the application of s 5(7) of the Limitation of Actions Act. I will hear the parties on the form of order and on the question of costs.

---

^[1] Thompson v Marks [2022] VMC 25 (the reasons for judgment).

^[2] Reasons for judgment [1]-[9].

^[3] [1959] HCA 8; (1959) 101 CLR 298.

^[4] Reasons for judgment [14].

^[5] Reasons for judgment [26]-[87].

^[6] Reasons for judgment [88]-[90].

^[7] Reasons for judgment [99].

^[8] Reasons for judgment [101].

^[9] Reasons for judgment [103].

^[10] Reasons for judgment [114].

^[11] Reasons for judgment [115].

^[12] Reasons for judgment [116]-[141].

^[13] Reasons for judgment [142]-[144].

^[14] Reasons for judgment [145].

^[15] Reasons for judgment [149].

^[16] Reasons for judgment [149].

^[17] Reasons for judgment [150].

^[18] Reasons for judgment [151].

^[19] As stated by Tadgell JA in Wong v Carter [2000] VSCA 53, [43].

^[20] Paragraph 1.

^[21] Paragraph 2(a).

^[22] Paragraph 2(b).

^[23] Relevantly it included the following issues: ‘What services were agreed to be provided by Steve Marks on behalf of SME’s R US to the plaintiffs’ and ‘What services were provided to the plaintiffs by Steve Marks on behalf of SME’s R US and when’.

^[24] [2007] NSWCA 154, [38], emphasis added by counsel for the appellant.

^[25] [2002] HCA 8; (2002) 209 CLR 95, [26].

^[26] [1997] 1 VR 125. Referred to with approval by Santamaria JA in Melbourne Orthopaedic Group Pty Ltd v Stamford Aus-Trade & Press Pty Ltd & Anor [2015] VSCA 150, [109].

^[27] Ibid 141 (citations omitted).

^[28] Reasons for judgment [143]-[144].

^[29] A plea in identical terms was also contained in paragraph 2(a) of the Defence to Counterclaim.

^[30] (2009) 237 CLR 638 (‘Vale v Sutherland’).

^[31] Ibid [39], [40].

^[32] [1990] HCA 11; (1990) 169 CLR 279, 296-297.

^[33] Vale v Sutherland (n 30), [41].

^[34] [2010] FCAFC 133; (2010) 189 FCR 356 (‘Betfair’).

^[35] [1961] HCA 72; (1961) 107 CLR 466.

^[36] Betfair (n 34), [49]-[53], citations omitted.

^[37] Emphasis added by the Full Federal Court.

^[38] Emphasis added by the Full Federal Court.

^[39] See above at [14].

^[40] Notice of Defence dated 20 August 2021 at [6].

^[41] As stated by French J in Kernel Holdings Pty Ltd v Rothmans of Pall Mall referred to in Betfair in [48] above.

^[42] See above at [48].

^[43] Reasons for judgment [145].

^[44] Reasons for judgment [149].

^[45] Reasons for judgment [100].

^[46] Pursuant to s 30 of the Limitation of Actions Act 1958.

^[47] [2018] VSC 131, [48].

^[48] [2020] VSCA 28.

^[49] Ibid, see at [47]-[49].

^[50] Ibid [52].