Re Allpike Honda Pty Ltd v John William Allpike; Allan Henry Allpike; Peter Allan Allpike; Patricia Allpike; Robyn Elizabeth Allpike; Hawkesdale Nominees Pty Ltd v Marbellup Nominees Pty Ltd; Ravensworth Pty Ltd and Guardian Assurance Compan [1983] FCA 199 (25 August 1983)

FEDERAL COURT OF AUSTRALIA

Re: ALLPIKE HONDA PTY. LTD.
And: JOHN WILLIAM ALLPIKE; ALLAN HENRY ALLPIKE; PETER ALLAN ALLPIKE; PATRICIA
ALLPIKE; ROBYN ELIZABETH ALLPIKE; HAWKESDALE NOMINEES PTY. LTD.
And: MARBELLUP NOMINEES PTY. LTD.; RAVENSWORTH PTY. LTD. and GUARDIAN
ASSURANCE COMPANY LIMITED
No. WAG 28 of 1982
Trade Practices

COURT

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.

CATCHWORDS

Trade Practices - consumer protection - misleading and deceptive conduct - tax planning scheme - whether misrepresentation of terms of insurance policies - non-disclosure of all terms of commission agency - whether applicants suffered loss - measure of damages

Trade Practices Act 1974 ss. 52, 55A, 82, 87

HEARING

PERTH
25:8:1983

ORDER

1. The respondent Marbellup Nominees Pty. Ltd. pay to the applicants the sum of $6,341.18.

2. The applicants' claim against the respondents Ravensworth Pty. Ltd. and Guardian Assurance Company Limited is dismissed.

3. All parties have liberty to apply on the question of the costs of the application.

DECISION

This claim involves provisions of the Trade Practices Act 1974. Before looking at the basis of the claim and at the evidence led in support of and in opposition to it, it is necessary to identify the several parties involved.

The first applicant Allpike Honda Pty. Ltd. ("Allpike Honda") carries on the business of retail motor vehicle dealer, motor vehicle services, maintenance and repair.

The second applicants John William Allpike, Allan Henry Allpike, Peter Allan Allpike, Patricia Allpike and Robyn Elizabeth Allpike ("the Allpike family") are service station operators and motor vehicle repairers. They are directors and shareholders of Allpike Honda. In the matters giving rise to this litigation their spokesman has been Allan Henry Allpike who has at all times acted as the agent of the Allpike family and of Allpike Honda.

He has also acted as the agent of the third applicant, Hawkesdale Nominees Pty. Ltd. ("Hawkesdale"). Hawkesdale is trustee of the Hawkesdale Nominees Pty. Ltd. Superannuation Fund ("the Superannuation Fund") established to provide superannuation and related benefits for employees and officers of Allpike Honda and for members of the Allpike family.

At all material times since 1 April 1980 the first respondent Marbellup Nominees Pty. Ltd. ("Marbellup") was the proprietor of a firm known as Associated Planning Services ("Associated Planning") which carries on business as a consultant in matters of business and taxation. Marbellup is trustee for the Marbellup Unit Trust. Both bodies are substantially controlled by David Robert Price who, in matters relating to this litigation, acted as spokesman and agent for Marbellup and also for the second respondent.

At all material times since 8 November 1979 the second respondent Ravensworth Pty. Ltd. ("Ravensworth") was the proprietor of a firm known as Specialised Accounting Consultants ("Specialised Accounting") which provides accounting, book-keeping and related services. Ravensworth is controlled by Mr. Price. Through him the two businesses, Associated Planning and Specialised Accounting, operate in a complementary way providing a range of services.

Before referring to the third respondent, it is desirable to mention some other entities which have featured in this litigation, though not named as parties to it.

Until April 1980 Zanthus Nominees Pty. Ltd. ("Zanthus") was the proprietor of Associated Planning. Thereafter, as mentioned, Marbellup became the proprietor of that business.

Zanthus was also the proprietor of Banyo Consulting Services ("Banyo"), a firm engaged in the business of financial, business and taxation consultants. Zanthus acted as trustee for the D.R. Price Family Trust; Banyo and the Trust were controlled by Mr. Price. Sandon Nominees Pty. Ltd. ("Sandon") became the proprietor of Banyo on 12 February 1981. Sandon has acted as trustee for the Sandon Unit Trust; Sandon and the Trust have been controlled by Mr. Price.

The third respondent Guardian Assurance Company Limited ("Guardian") is a general life and superannuation insurer. Certain policies issued by the company are the subject of this litigation, not because of any conduct on its part but vicariously because Marbellup, Zanthus and Sandon were alleged to be commission agents of Guardian.

When the hearing began, Guardian appeared by counsel who remained during the evidence of the first witness called by the applicants, Mr. Thomas, the manager of Guardian in Western Australia. Thereafter counsel sought and was granted leave to withdraw on the basis that having furnished to the court information about the policies in question and other relevant matters, the company had no wish to make any submissions on matters of fact or law. Counsel for Guardian said that he wished to be heard only on any motion for judgment in consequence of the delivery of these reasons.

Three agency agreements with Guardian were produced at the hearing. The first was an agreement with Zanthus then trading as Associated Planning and was dated 14 June 1979 with effect from 21 May 1979. The second, dated 7 August 1979 with effect from 1 July 1979, was with David Robert Price and Lynette Edith Price then trading as Banyo. The third, dated 3 September 1981 with effect from 1 January 1981, was with Sandon then trading as Banyo. Each agreement provided for the payment of commission by Guardian on assurances issued on proposals submitted by the agent.

The applicants allege that Marbellup, Guardian, Zanthus, Sandon and Price, or one or more of them, was under an obligation to disclose to the applicants the existence of the commission agency, that they failed to do so, and that the applicants suffered loss as a result. To understand how the obligation to disclose is said to arise, it is necessary to look at the other causes of action upon which the applicants rely. But it may be said now that no persuasive reason was offered, either in law or in fact, why Guardian should have disclosed the existence of any such agency. If there was an obligation to disclose, it was one resting upon those with whom or which the applicants dealt. It was not an obligation a consequence of which was to impose responsibility upon Guardian, vicariously or otherwise.

The applicants allege that early in 1980 they were approached by representatives of Marbellup, in particular Mr. Price and Mr. Rickaby who was then in the employ of Associated Planning.

Although there is dispute as to how the original approaches were made and what was said during the several discussions that took place thereafter, it is common ground that Allpike Honda and the Allpike family were looking for ways in which the burden of their tax liabilities might be reduced. An assessment of income tax for the year ended 30 June 1979 had recently been raised against the company and the family, carrying with it a substantial component of provisional tax. It is also common ground that Associated Planning was in the business of offering tax advice and that Mr. Price held himself out as a person competent to give that advice. As it happens, Mr. Price has no formal qualifications in that field and his experience is limited. However that is not to say that the advice he gave to Mr. Allan Allpike and the other members of the family in relation to their tax affairs, was in general other than competent advice achieving the results intended. Whether the charges rendered for this advice were reasonable is not a matter for this court to determine but there is no doubt that this was a matter very much in Mr. Allpike's mind.

And, although it is pleaded that services performed for the applicants by Marbellup and Ravensworth were "unsuitable and unnecessary", an allegation in those broad terms was hardly pursued and certainly was not sustained. The applicants' complaint against the respondents mainly concerns the advice they were given in regard to a superannuation scheme, established by Mr. Price for Allpike Honda and the Allpike family as part of their overall tax planning.

As part of that planning Hawkesdale was incorporated and thereafter the family business, instead of operating largely through the partnership, was conducted by Hawkesdale which then employed the family. The applicants allege that, in the course of the advice they gave, Messrs. Price and Rickaby represented and warranted that the superannuation scheme proposed would involve the following elements:

(a) that Allpike Honda and the Allpike family or one or other of them would contribute $45,000 by way of premiums on insurance policies over a period of 5 years at the rate of $9,000 a year.

(b) that the value of the insurance policies so obtained would accrue to a total of $58,000 at the end of 5 years, thus representing an increase of $13,000 on the premiums contributed.

(c) that during the currency of the policies the applicants could borrow therefrom at beneficial rates for the purposes of their business activities.

The applicants further allege that, through Price and Rickaby, Marbellup would secure from Guardian superannuation life policies to provide these benefits. They contend that in the circumstances Price and Rickaby were acting on behalf of or as agents for Guardian. The statement of claim does not plead with any particularity whether that agency arose directly from the activities of Price and Rickaby or from their association with one of the other respondents or business entities mentioned. The relevant proposals for life assurance are dated 23 and 24 April 1980 at which time the agency agreement between Guardian and Mr. and Mrs. Price trading as Banyo was in force. Associated Planning was a master agent with an entitlement to an overriding commission on insurances effected through Banyo. Hence on each of the policies effected, Associated Planning received one payment of commission; Banyo received recurring payments.

The applicants further plead that, in breach of the representations and warranties alleged to have been made, the terms of the policies did not conform to what they were told. In particular they say:

(a) each policy was for a term of ten years, not five.

(b) there was no provision for the return of premiums paid. The policies were not available, either by reference to premiums contributed or income earned from the superannuation fund, for borrowing by the applicants.

It is of some importance to measure the warranties and representations pleaded in para. 12 of the statement of claim against the breaches pleaded in para. 17.

Paragraph 12 does not in express terms plead that each policy was to be for a term of 5 years. Rather, the allegation is that the applicants would contribute $45,000 over 5 years. And so what is alleged to be a breach of that statement is only by implication. Again, although para. 12 pleads a warranty and representation that the policies would accrue to a value of $58,000 at the end of 5 years, no relevant breach is pleaded in para. 17. Finally, although para. 17 pleads as a breach of the warranties and representations alleged in para.12 that there was no provision for the return of premiums paid, para. 12 does not make such a direct allegation. It alleges only that during the currency of the policies the applicants could borrow therefrom.

I do not think that these differences can be explained in terms of loose pleading. Clearly the statement of claim was framed with care. In my view it reflects some uncertainty in the minds of the applications as to what precisely they were told when a quite complex scheme of tax planning was explained to them.

Marbellup and Ravensworth deny that representations or warranties were made as pleaded in the statement of claim. They say that -

(a) the applications were told that Hawkesdale would contribute premiums to insurance policies over a period of five years.

(b) neither Price nor Rickaby mentioned any specific amount that could be withdrawn from the policies at the end of that time, only that the applicants could withdraw their contributions at the end of five years, with a possibility of a small amount of interest depending on the performance of Guardian as the manager of superannuation funds.

(c) the applicants were also told that the cash value of the policies could be withdrawn, not borrowed, at any time after the first twelve months the policies were on foot, at the request of the trustees of the superannuation fund to which Hawkesdale belonged and there would be no restrictions on that withdrawal of money.

Thus a number of questions arise which may be summed up in this way.

(1) What was said by Price and Rickaby?

(2) Did anything they said constitute a representation or warranty?

(3) If there was a representation or warranty, was it breached?

(4) In any event did statements made by Price and Rickaby constitute misleading conduct within s.52 or s.55A of the Trade Practices Act?

(5) If there was a misrepresentation, breach of warranty, or misleading statement, are the applicants entitled to any and if so what relief?

As to those who gave the principal evidence at the hearing, I accept Allan Allpike and Peter Allpike as honest witnesses. At the same time I think that Mr. Allan Allpike was confused as to the number of occasions on which he spoke with Mr. Rickaby and Mr. Price. In particular, I am satisfied that although the initial approach to the Allpikes came from Mr. Rickaby, at Mr. Price's request, there were several discussions in Mr. Price's office at which the details of the tax planning scheme were explained and that Mr. Allpike rang Mr. Price on a number of occasions for information about aspects of tax planning.

As to Mr. Price, I have no reason to think that he spoke other than the truth as he saw it. At the same time there was in his dealings with the applicants, in particular the rendering of accounts by Associated Planning and Specialised Accounting, in his letter to the applicants' solicitors, in his defence as pleaded and in his evidence, some lack of frankness.

Mr. Rickaby did not pretend to have a particularly clear recollection of much that had been said at the discussions in which he participated. But I accept that he recalled events as accurately as he could.

Guardian issued three policies to give effect to the superannuation scheme. One was in the name of Mr. Allan Allpike, another in the name of his wife, Patricia, and the third in the name of Mr. Peter Allpike. The policies are identical. Each provides that the policy holder is Hawkesdale as trustee for the Superannuation Fund. Each has as its date of commencement 12 June 1980, though the first premium is expressed to be due on 1 April 1980. Premiums are payable monthly, the agreed amount varying from policy to policy according to the age of the life assured. The premiums total $9,000 a year. The policies were described by Mr. Thomas as 'unbundled', meaning that they are investment policies, accumulating over a period of time whenever the maturing age is declared.

The policies are not for a finite period. Each expresses the "accumulated amount" (defined as the amount standing to the credit of a savings account in accordance with the provisions of the third schedule to the policy) to be payable "on death of the Life Assured or such other date at least 10 years after the date of Commencement as you may decide". The third schedule contains a complicated set of provisions, dealing with contributions to and the calculation of the amount in the savings account which is maintained thereunder. It includes charges in respect of the savings account and charges relating to the accumulated amount which itself is increased by annual interest additions. There is provision for termination of the polisy. If termination occurs within 10 years, the accumulated amount is reduced by a percentage dependent upon the length of time the policy has been in force. The investment of funds by Guardian is such that the policies meet the requirements of the Income Tax Assessment Act 1936 for superannuation schemes.

In short then, none of the policies is for a definite term except in the sense that at the end of 10 years the accumulated amount may be withdrawn without deduction. There is no provision for "borrowing" monies contributed, but at any time after 2 years the accumulated amount may be taken in cash subject to the percentage reduction already mentioned. In that event the policy lapses or terminates in accordance with cl. 4 of the second schedule.

Mr. Allan Allpike and Mr. Peter Allpike may have believed that the policies were for a term of 5 years but I think this resulted from a misunderstanding of what they were told. Both Mr. Price and Mr. Rickaby were familiar with the type of policy Guardian was issuing in relation to superannuation schemes and there is no reason why they should have mentioned that the policies in effect matured at the end of 5 years. They had nothing to gain by doing so and I accept their denial that they did so.

What Mr. Price did say, according to him, was that at the end of 5 years contributions could be withdrawn together with a small amount of interest.

Again I think that the Allpikes misunderstood what was said about borrowing on the policy. I am satisfied that what they were told by Mr. Price was that at the end of 5 years their contributions, tax deductible in the meantime, were repayable to them together with a small amount of interest and that they could look forward to having the benefit of this lump sum for the use of thier business.

Mr. Allan Allpike said that Mr. Rickaby told him that "after a period of five years we would accrue an amount of $58,000 which would give us something like $13,000 in interest on that money that was paid in . . .".

Mr. Peter Allpike did not mention any such remark.

Mr. Price denied that he made any such statement. No one contended that he personally had done so and I accept his denial.

Mr. Rickaby said he had no recollection of the earnings of the funds being discussed nor of any mention of a figure of $13,000. At the same time he said that he thought a minumum interest rate of 6% was mentioned.

If an interest rate of 6% is applied to annual contributions of $9,000 over 5 years, the interest figure is in excess of $12,000. The probability is that a minimum interest rate was discussed and it is likely that some calculation was made of the sum available to the policy holders at the end of 5 years. I do not think Mr. Allan Allpike dreamed up the figure of $13,000. I accept his evidence that Mr. Rickaby mentioned "something like $13,000 in interest".

But the applicants failed to show that had the policies continued on foot the policy holders would not have received at the end of 5 years an interest component of $13,000 or thereabouts. Had they terminated the policies at the end of 5 years, the accumulated amount in each case was liable to a reduction of between 15% and 45%. As I read each policy, 15% was the reduction current at the date of commencement; it was subject to alteration but not to any greater extent than 45%.

Asked whether the amount receivable at the end of 5 years would be more or less than the premiums contributed, Mr. Thomas said it could be either, depending upon the performance of Guardian with regard to its investments.

And so the position is that it was neither pleaded nor proved that at the end of 5 years the policy holders would not be entitled to a figure comprising their contributions of $45,000 and interest of $13,000 or thereabouts.

Each policy carried an endorsement on the second page at the foot of the first schedule notifying the policy holder:

"If when you first receive this policy it does not appear to meet your needs, you may return it to the Company within fourteen days of the postmark on the envelope in which it was delivered to you, or in the case of personal delivery, within fourteen days of the date thereof, and the Company will refund any premiums you have paid less any medical costs incurred by the Company".

The applicants allege that they did not receive the policy documents until October 1981. At that time they had decided to change their accountants; among the papers picked up by their new accountants from Associated Planning and Specialised Accounting were the policies in question. On 15 October 1981 Mr. Allan Allpike wrote to Guardian a letter which included the following:

"After inspecting the policy documents and being advised of the current surrender values, we find that the policies do not appear to meet our needs.

We are therefore returning the policies to you and would request that you return to us all premiums that we have paid".

The reference to "current surrender values" arose in this way. When the new accountants produced the policies to the Allpikes, the latter sought advice on them and were referred to an insurance consultant, Mr. Kelsall, who visited Guardian on 12 October 1981 asking for the surrender values of the policies. As Mr. Kelsall did not have an authority from the policy holders, Guardian declined to give him this information. Instead it wrote to Allpike Honda on 12 October setting out current surrender values and estimated values as at 31 March 1985, a date five years from the commencement of the policies. It was in response to Guardian's letter of 12 October that Mr. Allpike wrote his letter of 15 October. In view of the time that had elapsed, Guardian declined to return the premiums.

Marbellup says that Associated Planning received the policies from Guardian on 30 June 1980 and receipts were produced evidencing this. But it also says that on the same day, 30 June 1980, Associated Planning sent to Messrs. A.H., P. & P.A. Allpike at the address "Hawkesdale Nominees Pty. Ltd. 81 Walcott Street, Mt. Lawley, W.A. 6050" photocopies of the policy documents. This was the correct address.

I accept the evidence of Miss Taylor, who was employed by Associated Planning at the time, that the practice of the firm was that on submitting a proposal to an insurer, various documents were prepared including a letter to the policy holder. This, undated, was placed in a file along with other relevant documents and, on receipt of the insurance policy, the letter was dated and together with the policy sent to Associated Planning's client. Miss Taylor identified the letter of 30 June 1980 as one of such documents and confirmed the handwritten date as hers. After this length of time she could not say positively that the letter was posted. But she did say that in accordance with the normal practice of the firm the original of that letter and photocopy policy documents were sent to the Allpikes on 30 June 1980. She was able to say, and I accept her evidence, that neither the letter nor the policy documents were returned.

It should be noted that although the letter speaks of "photostat copies of the policy documents", they were in fact copies only as to the face sheet, first schedule and second schedule. For some reason, the third schedule containing the savings account provisions was not copies.

The applicants' case is that they did not receive the copy policies in June 1980 and did not receive them until October 1981 or thereabouts. This is another curious feature of the limtigation. I accept the evidence of Mr. Allan Allpike and Mr. Peter Allpike that they did not see the policies until October 1981. Equally there is no reason to doubt that the pratice followed by Associated Planning would have led to the posting of the letter of 30 June. Miss Taylor referred, without objection, to a postage book which she said she had recently inspected and which recorded that on 30 June 1980 a letter was sent to the Allpikes. For some unaccountable reason the postage book was not tendered by the respondents and I do not suppose that it was in the interests of the applicants to tender it.

If there was an obligation on Marbellup to make the policies available to the applicants, it was not in absolute terms. It was no more than to take reasonable steps to deliver the policies and, in my view, Marbellup did this. It was of course always open to the applicants to inquire about the policies but they did not do so.

Both Messrs. Allpike gave evidence of a thorough search for the policies and of their inability to find them. What happened to the policies must remain a mystery.

As to the alleged failure to disclose the existence of a commission agency, it will be remembered that at the time the proposals were submitted Associated Planning held a master agency and Banyo, comprised of Mr. and Mrs. Price, held a commission agency.

The allegation in the statement of claim is that at the material times Marbellup was a commission agent of Guardian, alternatively Zanthus or Sandon or both of them were agents. It was established that Marbellup was an agent, not in its own name but as the proprietor of Associated Planning. It was also established that Banyo was an agent. Banyoa is not a respondent to the application nor is Mr. Price; but para. 8C of the statement of claim includes an allegation that Marbellup was under an obligation to disclose to the applicants the existence of any agency and any benefit ultimately to be derived by Mr. Price or members of his family.

The evidence of Mr. Allan Allpike was at first that nothing was said to him about commissions which might be earned by Associated Planning or some related company. In cross-examination, his denials tended to be on the basis that he had no recollection of being told about commission; while I accept Mr. Allpike as a truthful witness, there were matters of detail about which he was vague. Mr. Peter Allpike was adamant that no mention was made to him of this matter and that, had he been told of a connection between Mr. Price and Guardian, he would have wondered in whose interests Mr. Price was acting. I accept that evidence but it does not carry the applicants very far unless it is apparent that any explanation said to have been given by Mr. Price must have been in the presence of Mr. Peter Allpike as well as his father. And that is not the evidence.

Mr. Price was quite definite that he mentioned dealing with Guardian and that, in recommending a superannuation fund, he said he would arrange policies with that company. He added that he would receive commissions for arranging the policies and that a benefit to the Allpikes would be that no fees would be charged for the documentation and trust deeds of the superannuation funds, "as we received a commission to reimburse us for those costs". In the context of examination in chief, the inference is that these remarks may have been made at a meeting at which Mr. Peter Allpike was present or at some other meeting. In cross-examination, Mr. Price was asked with reference to Mr. Allan Allpike and on a basis that did not confine it to any particular meeting. It was put to Mr. Price that in correspondence with the applicants' solicitors, in his defence filed in these proceedings, and in an affidavit also filed in them, he failed to take the obvious step of saying that a disclosure of the agency or agencies had been made by him to the Allpikes. It was not suggested that there was anything in the letter or affidavit that was untrue, simply that Mr. Price failed to take the opportunity offered to him to make his position clear and that his evidence on this matter should be viewed with considerable suspicion.

There is force in this submission but I am not prepared to reject Mr. Price's sworn testimony that he did mention to Mr. Allan Allpike the existence of Guardian as the company with which the insurance policies would be arranged and that he did mention that he or one of the organizations with which he was connected would receive a benefit by way of commission. But I am satisfied that Mr. Price did not explain that Associated Planning would receive one commission on each policy and that Banyo would receive continuing commissions. I am also satisfied that Mr. Price made no mention of the amounts of commission involved and that, having regard to those amounts, merely to say that the Allpikes would therefore be saved the cost of preparing some documents, was in the circumstances misleading. The evidence of Mr. Thomas showed that the following amounts were paid by way of commission. In each case the first payment was made to Associated Planning and all other payments to Banyo. Presumably payments ceased in October 1981 because no premiums were paid thereafter.

Policy No. Date Credited Amount
to Commission $ Account 150013693B 18/6/80 343.44
Patricia Allpike 18/6/80 1,717.20

30/4/81 572.40
30/4/81 7.95
31/5/81 7.95
30/6/81 7.95
31/7/81 7.95
31/7/81 7.95
30/9/81 7.95
31/10/81 7.95

150013694L 18/6/80 113.40
Peter Allpike 18/6/80 567.00

30/4/81 189.00
30/4/81 2.62
31/5/81 2.62
30/6/81 2.62
31/7/81 2.62
31/8/81 2.62
30/9/81 2.62
31/10/81 2.62

150013695J 19/6/80 353.16
Allan Allpike 19/6/80 1,765.80

30/4/81 588.60
30/4/81 8.17
31/5/81 8.17
30/6/81 8.17
31/7/81 8.17
31/8/81 8.17
30/9/81 8.17
31/10/81 8.17

These payments amount to $6,341.18 and no doubt would have continued had

premiums not ceased in 1981. There was no suggestion by the respondents that the costs associated with the preparation of trust deeds or ancillary matters were likely to reach anywhere near that figure.

This was no situation of insurance agent or broker where it is generally understood that the agent will receive a commission for his services. Associated Planning operated as a financial, business and taxation consultant. For these services it raised charges and was paid. The insurance policies with Guardian were arranged, not because the Allpikes wished to secure insurance, but because it was an ingredient of the tax planning scheme devised by Associated Planning.

It is suggested by the authors of Meagher, Gummow and Lehane: Equity para. 538 that the authorities to which they refer:

". . . clearly establish that equity does impose a general obligation on agents not to profit from their position, and that a breach of this obligation is the subject of equitable remedies as well as remedies at law".

In Keith Henry & Co. Pty. Ltd. v. Stewart Walker & Co. Pty. Ltd. [1958] HCA 33; (1958) 100 CLR 342 at p.350 the court said:

"The doctrine of Keech v. Sanford is shortly stated by saying that a trustee must not use his position as trustee to make a gain for himself: any property acquired, or profit made, by him in breach of this rule is held by him in trust for his cestui que trust. The rule is not confined to cases of express trusts. It applies to all cases in which one person stands in a fiduciary relation to another: it has been applied as between partners, as between principal and agent, and as between master and servant".

Some of the authorities are concerned with the position of agent as trustee because what was at stake was the recovery of property in specie, often where it had been transferred to a third party. These considerations do not arise here and it is unnecessary to determine whether for all purposes Associated Planning and those with whom the applicants dealt stood in a fiduciary capacity to them. It is enough for present purposes to hold, as I do, that when in the course of advising the applicants and preparing a tax planning scheme for them Associated Planning arranged insurance policies with Guardian, it was under an obligation to explain fully to the applicants any financial benefits it stood to gain from Guardian by reason of this transaction. The obligation was nonetheless because the proposals were submitted to Guardian through Banyo. Given the role of Mr. Price and his family in these entities, the inference may be drawn that Banyo was acting at the request of Associated Planning of which Marbellup was the proprietor as trustee for the Marbellup Unit Trust.

In comparable circumstances a solicitor has been required to account to his client for commission paid to him by an insurance company on the annual premium of his client (Copp v. Lynch (1882) 26 Sol. Jo. 348); Jordy v. Vanderpump (1920) 64 Sol. Jo. 324; and an insurance agent has been ordered to credit his principal with a discount given for prompt payment of premiums in cash (Queen of Spain v. Parr (1869) 39 LJ Ch. 73).

I am satisfied that in the circumstances of this case Marbellup, as the proprietor of Associated Planning, engaged in conduct that was misleading or deceptive or was likely to mislead or deceive, hence was conduct in contravention of s.52 of the Trade Practices Act. The misleading conduct was the failure of Associated Planning fully to explain to the applicants the relationship between it and Banyo on the one hand and Guardian on the other with the consequent benefits both stood to gain from the issue of insurance policies. The question is not so much whether silence may amount to misleading conduct but whether failure to communicate the complete picture may do so. In my view it may, and in this case, it did.

Section 82 of the Act permits a person who suffers loss or damage by conduct of another done in contravention of s.52 to recover the amount of the loss or damage by action. In Brown v. The Jam Factory Pty. Ltd. (1981) 35 ALR 79, Mister Figgins Pty. Ltd. v. Centrepoint Freeholds Pty. Ltd. (1981) 36 ALR 23 and Hubbards Pty. Ltd. v. Simpson Ltd. (1982) 41 ALR 509, the assessment of damages for a contravention of s.52 was approached on the footing that a claim under s.82 is more akin to tort than to contract. Each decision was concerned with the particular circumstances of the case and did not purport to lay down principles of universal application. The language of s.82 is wide and in my view the loss suffered by the applicants, in the circumstances of this case, is measured by the advantages gained by its agent, for which the agent is obliged to account. In any event, s.87 of the Act confers on the court wide powers of ensuring compensation.

I am not persuaded that any of the respondents engaged in conduct liable to mislead the public as to the nature, the characteristics, the suitability for their purpose or the quantity of any services they provided (s.55A). As indicated earlier in these reasons, I am satisfied that although the applicants may have been under some misunderstanding as to the benefits they would receive from the insurance policies, there was in this respect no misrepresentation by any of the respondents nor was there any conduct liable to mislead. For this reason I reject the applicants' claim that they are entitled to damages to put them in the position they would have been had the tax planning scheme been as they thought. For the same reason I reject any claim for damages that seeks to recover the value of premiums paid on the policies.

Since the only respect in which I hold any of the respondents liable is Marbellup's failure to explain fully to the applicants the position regarding commissions, there is no basis upon which I should declare that the policies are void or voidable or that there should be a variation of the terms of the policies pursuant to s.87 of the Act.

Finally there is no justification for continuing the injunction presently restraining Ravensworth from prosecuting its claim in the Local Court.

The applicants are entitled to recover from Marbellup the sum of $6,341.18; the claim against Ravensworth and Guardian is dismissed.