Australian Karting Association Ltd v Karting (NSW) Incorporated

The disputes between the parties arise against the background where the plaintiff, Australian Karting Association Ltd (Karting Australia), is the Australian body responsible for promoting the sport of karting in Australia and the defendant, Karting (NSW) Incorporated (Karting NSW), was, until 21 January 2019 when Karting Australia purported to expel it as an Ordinary Member, the NSW entity responsible for promoting the sport and conducting karting races in New South Wales and the Australian Capital Territory.

By statement of claim filed on 21 February 2019, Karting Australia claims monies said to be outstanding pursuant to three loan agreements with Karting NSW. Karting NSW defended Karting Australia’s claim on the basis that it was not in default of the loan agreements as Karting Australia had not validly expelled it as an Ordinary Member. Further, it argued that the terms for accelerated payment and interest in the loan agreements amounted to penalties and were therefore unenforceable. It also argued that Karting Australia’s conduct was unconscionable and that, accordingly, these provisions of the loan agreements ought not be enforced.

By cross-claim filed on 5 September 2019, Karting NSW claimed the return of monies which comprised driver levies which Karting NSW had, since prior to 2005, been obliged to collect on behalf of Karting Australia and its predecessor, Australian Karting Association Incorporated (AKA Inc). Karting NSW alleged that because, at the end of each financial year, Karting Australia had allocated these amounts in its financial statements to a loan account in favour of Karting NSW, the monies amounted to unpaid distributions under a trust created in 2005. In response, Karting Australia contended that no monies had ever been distributed under the trust and that, accordingly, the monies claimed remained part of the trust property.

Before turning to the evidence of witnesses, I propose to consider the relevant documents, both the transactional documents and the business records.

Karting Australia tendered the minutes of the annual conference of AKA Inc, which took place on 13 August 1994. The minutes recorded that, relevantly, the following motions were carried: first, that AKA Inc set up a National Trust Fund on a trial basis for two years from 1 January 1995; and, secondly, that the income received by AKA Inc from the National Trust Fund be recorded monthly on a State by State basis with the Secretariat reporting to the National Karting Council (NKC) of AKA Inc on an annual basis on the funds collected.

It was common ground that Karting NSW and the other State karting associations formed the Track Development Fund, which was a collective fund financed by contributions from each member State of driver levies. The fund was used for the purposes of local track development through loans which were made by the fund to particular clubs. For many years, this arrangement remained informal. The practice was for State karting associations to remit driver levies into a designated bank account. On 24 November 2002, the NKC met and resolved to establish a discretionary trust known as the Track Development Fund, which would be subject to a Trust Deed. This did not occur until 2005.

On 21 October 2005, a discretionary trust, the AKA Track Development Fund Trust (the trust), was created of which AKA Inc was the trustee. The members of AKA Inc, which included Karting NSW and the other State karting associations, were specified as the Corpus and Specified Beneficiaries. The “Discretionary Class” was defined as the Specified Beneficiaries, the Corpus Beneficiaries and their lawful successors. The “Date of Vesting” was, relevantly (no date having been specified in the Schedule), 21 years “from the death of the last lineal descendant now living of his late Majesty King George IV”, or an earlier date which the trustee may appoint in writing. It was common ground that the trustee had not appointed an earlier date.

Clause 6 of the Trust Deed conferred extensive powers on the trustee, including powers to borrow, lend or guarantee (cl 6(b)) and to “appropriate assets” (cl 6(n)). The power to appropriate assets was to be exercised as follows:

Pursuant to cl 7 of the Trust Deed, the Trustee was also entitled to “pay to any one or more members of the Discretionary Class, or apply or settle on trust, for their benefit, the whole or any part of the Trust Fund.”

Clause 15 of the Trust Deed relevantly provides:

The Schedule to the Trust Deed provides that the settled sum is $1. As to “vesting of corpus”, it provides:

It was common ground that, on 12 November 2013, Karting Australia took over from AKA Inc as trustee.

Since the creation of the trust, the trustee has received money collected by its beneficiaries, the State karting associations, on which it has earned interest. The first accounts of the trust which are in evidence are the financial statements for the year ended 31 December 2006. They are referred to in more detail below. However, they record that for the previous year ended 31 December 2005, the balance of Karting NSW’s “loan account” was $230,374. This sum was described as “Capital Contributed”. The same description was applied to the sums for each of the other State entities. The blanks in other lines are consistent with the new system of dealing with the matter (from the financial year commencing 1 January 2006) by reference to the Trust Deed. I infer that the funds which had been held pursuant to the informal arrangement referred to above, which had been in place since 1 January 1996, were paid to AKA Inc. These funds, in the accounts of the trustee (AKA Inc and, subsequently, Karting Australia) from at least 1 January 2006, were treated as comprising loans to beneficiaries. From the outset, the net assets of the trust reported in its balance sheet was $1. Thus, it is plain from the balance sheet that the initial capital contributions were not treated as assets of the trust.

Every year, the trustee deducted from its receipts and income (which comprised the driver levies and interest on deposits) the expenses which it incurred and credited these amounts to the State karting associations. The monies were not actually paid to the State karting associations. Instead, the trustee increased their loan accounts, based on their respective contributions.

As referred to above, Karting NSW’s cross-claim is an action for money had and received against Karting Australia, as trustee, for the monies distributed to Karting NSW, but not yet paid. In order to address Karting NSW’s cross-claim, it is necessary to address the financial statements of AKA Inc and Karting Australia since the creation of the trust.

As the trust was created in 2005, it is necessary to start from the accounts that post-date the creation of the trust. It was common ground that AKA Inc was the trustee of the trust from its creation until November 2013 when it was replaced as trustee by Karting Australia.

The financial records of AKA Inc for the year ended 31 December 2006 recorded the following:

The assets of AKA Inc comprised cash at bank, trade debtors, other debtors and “loans at call - secured”. The amount for “loans at call - secured” was $155,840 which comprised the total of various loans which the trustee had made to karting clubs throughout Australia. The total figure for liabilities of $747,805.44 comprised the net figure for the “Beneficiaries Accounts” (in the notes to the accounts under the heading, “Movement in Beneficiaries’ Loan Accounts”), which was derived from the opening balance (from the previous year) to which was added an amount for “Driver Levy & Royalties” and “Share of Profit”. The figure for Karting NSW’s account for the year ended 31 December 2006 was $261,731.91, which comprised approximately one third of the total figure for “Beneficiaries Accounts”.

A person authorised by AKA Inc signed the accounts of the trust on 21 March 2007. The form of the declaration was as follows:

The trust’s accounts were subject to independent audit by Mr Walsh of G J Walsh & Co, who gave an unqualified audit opinion in respect of those accounts in the following terms:

Although the wording of these declarations and opinions changed slightly over the years, it was not suggested that these changes were material.

The accounts for the year ended 30 June 2009 were in similar form to those considered above (assets of $1 and no retained profits). By that time, the total figure for current liabilities was $999,615.51, of which AKA Inc’s liability to Karting NSW amounted to $341,164.42. The figure of $341,164.42 comprised an opening balance from the previous year of $315,256.24 to which was added “Driver Levy & Royalties” of $16,911.73 and “Share of Profit” of $8,996.45. For this financial year, the declaration, which was made on 18 August 2009, was not expressed to be made by the “trustee”, but rather by the “directors of the trustee company”. The declaration was expressed to be “made in accordance with a resolution of the Board of Directors of the trustee company”. Once again, Mr Walsh gave an unqualified audit opinion in respect of these accounts.

The accounts for the year ended 30 June 2010 were in similar form to those considered above (assets of $1 and no retained profits). By that time, the total figure for current liabilities was $1,081,973.48, of which AKA Inc’s liability to Karting NSW pursuant to the loan account amounted to $361,857.14. The figure of $361,857.14 comprised an opening balance from the previous year of $341,164.42 to which was added “Driver Levy & Royalties” of $19,112.16 and “Share of Profit” of $1,580.56. On 13 August 2010, the directors of AKA Inc made a similar declaration to the one they had made the previous year. On the same day, Mr Walsh gave an unqualified audit opinion in respect of AKA Inc’s financial statements for the year ended 30 June 2010.

The accounts for the year ended 30 June 2011 were in similar form to those considered above (assets of $1 and no retained profits). By that time, the total figure for current liabilities was $1,189,970.11, of which AKA Inc’s liability to Karting NSW amounted to $396,997.56. The figure of $396,997.56 comprised an opening balance from the previous year of $361,857.14 to which was added “Driver Levy & Royalties” of $32,853.52 and “Share of Profit” of $2,286.90. On 19 August 2011, the “trustees” made a similar declaration to the one that was made the previous year, but it was said to have been made in accordance with a “resolution of the trustees”. This declaration was signed by five people, including Mrs Pam Arnett, who was then the National Secretary of AKA Inc. I accept Mrs Arnett’s evidence that she realised that it was an important matter to make such a declaration and that she would not have signed the declaration had she not believed the declaration to be true and correct. Also on 19 August 2011, Mr Walsh gave an unqualified audit opinion in respect of AKA Inc’s financial statements for the year ended 30 June 2011.

For each ensuing year the trust’s total equity was $1; the closing retained profit was nil; and the correctness of the financial statements was the subject of a declaration by the directors of the trustee and an unqualified audit opinion. The relevant figures for the ensuing years can be summarised in the following table:

I have included the figures for the last two financial years since they were in evidence but I note that Karting NSW’s cross-claim is limited to a claim for monies had and received by Karting Australia up to and including 11 October 2018. On that date Karting NSW demanded the amount of $616,065.06. It claims interest at court pre-judgment interest rates on that sum.

The form of the accounts for the year ended 31 December 2014 changed somewhat. The loans to beneficiaries, which had formerly been described as “current liabilities” were reclassified (without explanation) as “non-current liabilities”. Under the heading “Beneficiaries Profit Distribution Summary”, the following note appeared:

Further, there was a new note 1 to the accounts, under the heading “Summary of Significant Accounting Policies”, which read:

This note accorded with the way Karting Australia put its case in this Court. Karting NSW submitted that the note was incorrect as a matter of law and that the loan accounts to beneficiaries amounted to distributions from the trust which were accessible by the beneficiaries at any time on demand or recoverable in an action for monies had and received within the principles enunciated in Fischer v Nemeski (2016) 257 CLR 615; [2016] HCA 11 (Fischer). Alternatively, Karting NSW submitted that the note could only refer to the capital of the trust (which remained at the end of each financial year at $1) and to undistributed income (of which there was none, since all income had been distributed to the beneficiaries, by crediting their loan accounts).

Note 1(k) to the accounts for the year ended 31 December 2014 (extracted above) is to be contrasted with note 8(a), “Financial Liabilities”, which said:

Karting NSW submitted that this note correctly states the legal position.

Changes were made to the notes for the year ended 31 December 2015. What had been “BENEFICIARIES SHARE OF PROFIT” in the previous year was changed to read as follows:

Under note 1, “Summary of Significant Accounting Policies”, the following note appeared:

As is evident from what is set out above, this note accords with Karting Australia’s case at trial on the cross-claim and is at odds with what Karting NSW submitted was the correct legal position. Note 8(a), as set out above for the previous financial year, was in the same form for the year ended 31 December 2015 and accords with Karting NSW’s case at trial on the cross-claim.

The notes continued in a similar form in the ensuing years. The trustee’s declaration as to the correctness of the financial statements, and the unqualified audit opinion, for the year ended 31 December 2018 was signed on 24 April 2019, approximately three months after the purported expulsion of Karting NSW as an Ordinary Member (see below).

For the financial year ended 31 December 2019, the loans to beneficiaries, which had previously been described as “liabilities” or “financial liabilities” in the balance sheet, were described as “Beneficiary Accumulations”. However, their overall classification as liabilities in the balance sheet remained unchanged. The notes to the accounts were as set out above for the immediately previous years.

The notes for the trust’s financial statements for the year ended 31 December 2020 included the following note under “Expenses” (which included an amount of $78,846.97 for legal expenses):

The notes to the financial statements indicated that the total amount of loans made by the trustee to karting clubs throughout Australia was $299,052.28, which comprised loans to four clubs in New South Wales (Coffs Harbour, Combined Districts, North Shore and Tamworth), which totalled less than $80,000; one loan to the Go Kart Club of South Australia; loans to four clubs in Victoria (Albury Wodonga, Eastern Lions, South West and Goulburn Valley) and one loan to a club in Western Australia (Midwest). There were no loans to clubs in Queensland, Tasmania, the Australian Capital Territory or the Northern Territory. The figure for total loans to beneficiaries of $299,052.28 was to be contrasted with the total figure for the loan accounts from the beneficiaries, which, by this time, amounted to $2,004,629.17.

Karting Australia tendered Karting NSW’s special purpose financial report for the year ended 30 June 2018. Ms Meyer (formerly Alsters), Karting NSW’s only lay witness, accepted that the financial statements attached to the report did not have an entry which corresponded with the liability figure in Karting Australia’s balance sheet which was referable to Karting NSW’s contributions to the trust. She explained that, at the time the accounts were prepared and declared to be correct, Karting NSW had not been provided with an executed copy of the Trust Deed (and therefore did not appreciate the correct legal position).

I do not regard what was contained in Karting NSW’s financial statements as bearing on the issue of the correct characterisation of the sums which Karting NSW had paid to AKA Inc and Karting Australia over the years. A trustee has fiduciary duties to identify the beneficiaries and inform them of the property held on their behalf and their entitlement to money in the hands of the trustee: Hawkesley v May [1956] 1 QB 304. If the beneficiary misapprehends the character or amount of monies or property to which it is entitled (and this misapprehension is reflected in the beneficiary’s financial statements), this cannot be held against the beneficiary by the trustee. In effect, the trustee is not permitted to profit from its own breach, as was held, in a different context, in Hawkins v Clayton (1988) 164 CLR 539 at 590 by Deane J; [1988] HCA 15.

Karting Australia’s constitution (the Constitution) commenced with a “Vision Mission Statement” which includes the following purpose:

The Constitution includes provisions for rules. Rule 2.2 provides that “Ordinary Members are the state and territory associations who have executed a Memorandum of Understanding under clause 8.5 herein.” It also provides that such members have a right to vote as well as be given notice of, and be heard at, a General Meeting. Rule 3(b) provides that a member ceases to be a member if “expelled for misbehaviour or being not of a fit and proper character to remain a member pursuant to the powers set out under rule 6”.

Rule 6, which provides for the discipline of members by the Board, contains an exception for Ordinary Members and provides that Ordinary Members may only be fined, suspended or expelled by a vote taken at a general meeting of Karting Australia. Because of its importance to Karting Australia’s claim with respect to the third loan agreement, it is necessary to set out r 6 in full:

Rule 8.1 provides for the Board’s powers, which include the power to issue licences to drivers and permits to organisers (r 8.1(e)), and the imposition of levies (r 8.1(f)). Rule 8.4 empowers Karting Australia to allocate to Ordinary Members responsibilities in various areas, including “remittance of monies collected on behalf of [Karting Australia]”: r 8.4(e). Rule 21 provides for Special General Meetings and relevantly provides:

Provision is made for a quorum in r 25 and for proxies in r 26. Rule 27 provides that all decisions at General Meetings (other than certain irrelevant exceptions) are decided by simple majority of votes cast.

From time to time, Karting Australia advanced funds to the State karting associations for the benefit of particular karting clubs within the corresponding State or Territory. These loans were the subject of written loan agreements. The following three loans are the subject of Karting Australia’s claim in the proceedings.

The benefit of the first two loan agreements (for which AKA Inc was the lender) was assigned by AKA Inc to Karting Australia by deeds of assignment dated 16 May 2014.

The terms of the first and second loan agreements were relevantly similar. The parties to the loan agreements were said to be the lender (being the party in item 2 of the Schedule), the borrower (being the party in item 3 of the Schedule) and the guarantor (being the party in item 8 of the Schedule). As is evident from the table set out above, in each of the first two loan agreements, the lender was AKA Inc.

Each loan agreement provided that interest was payable on the Principal Sum. However, interest was postponed as long as there was no breach of any term or condition of the loan agreement. In the event of breach, any amount outstanding together with interest accrued became immediately due and payable. Clause 5 made provision for repayment by instalments on particular dates set out in the schedule. Clauses 6, 7 and 8 relevantly provided:

The word, “Affiliate” in cl 7(h) above was defined in cl 2(b) as follows:

The interest rate provided for in the Schedule to each loan agreement was as follows:

Item 9 of the Schedule to the first loan agreement, “Repayment” provided:

This item in the Schedule, when multiplied out, equates to the principal sum of $100,000; that is, there was no provision for interest in the repayment schedule.

The effect of the provisions of the third loan agreement was substantially similar to that of the first two loan agreements. However, for the third loan agreement, Karting Australia was the lender. The interest rate for the third loan agreement under cl 4.2 was 8% above the Cash Rate Target specified by the Reserve Bank Target (rather than 5% above as with the first two loan agreements). Further, the interest was said to be payable, under cl 4.2, but to be suspended, by cl 4.3 “subject to strict performance of the Borrowers of their obligations”.

Clauses 4.5 and 4.6 provided:

Clause 6.1(a) provided:

It is plain from the terms of the loan agreements that the nature of the breach relied on to trigger an immediate liability to pay accrued interest may be unrelated to the loan. Mr Snow, who appeared for Karting NSW, accepted that the evidence of what occurred in Queensland as set out below (to which no objection was taken) was only relevant as an example of the kind of breach which was in contemplation of the parties when loan agreements were entered into, which occurred before the example set out above.

On 21 March 2018, Karting Australia wrote to Australian Karting Association (Qld) Inc (Karting Queensland), as follows:

In April 2018, following receipt of the letter, the treasurer of Karting Queensland reported to the members in part:

Mr Snow relied on this example to demonstrate that the terms of the loan agreement could be used oppressively by Karting Australia.

On 18 August 2012 a Special General Meeting of AKA Inc was held, during which a motion was passed that on 31 August 2013, or such earlier date as the board of Karting Australia and AKA Inc might agree, the operations of AKA Inc would be transferred to Karting Australia.

On 2 October 2013, a Memorandum of Understanding was executed by Karting Australia and Karting NSW (the MOU).

Clause 3.1(a) of the MOU provided that, pursuant to r 8.4 of the Constitution, Karting Australia would allocate to the Ordinary Members various responsibilities, including “remittance of monies collected on behalf of [Karting Australia].” Clause 3.1(b) provided that Karting Australia and the Ordinary Member (Karting NSW) agreed to comply with their respective responsibilities and obligations set out in Annexure A. Clause 3.7(c) provided that where an Ordinary Member has breached the MOU, Karting Australia’s board would impose a “suitable sanction in accordance with the Constitution and Regulations.” Annexure A included, as an obligation and responsibility of the Ordinary Member:

On 12 November 2013, AKA Inc was replaced as trustee by Karting Australia. As referred to above, the benefit of the loan agreements entered into by AKA Inc was assigned to Karting Australia on 16 May 2014.

On 30 December 2013, Karting Australia issued an end-of-year update to its members in which it said:

On 16 October 2014, Karting NSW wrote to Karting Australia raising concerns regarding the administration of the trust fund, which was referred to as the Track Development Fund or TDF. Its Chief Executive Officer wrote:

The minutes of Karting NSW’s board meeting of 13 January 2015 recorded:

On 4 August 2016, Karting NSW wrote to Karting Australia, in the latter’s capacity as trustee of the trust, asking it to return funds held by the trust on its behalf so that it could conduct its own NSW-based Track Development Fund. This was its first demand for the funds. Karting Australia refused this request by letter dated 17 August 2016.

On 20 March 2017, Karting NSW wrote to Karting Australia and expressed its concern that Karting Australia might be acting ultra vires. It sought information from Karting Australia, including “copies of any and all documentation that confirms the transfer (assignment) of the Trust Deed of the above Fund from AKA Inc to [Karting Australia].” On 6 April 2017, Karting Australia responded in part as follows:

In 2018 there was significant correspondence between Karting Australia and Karting NSW, some of which is referred to below.

On 9 May 2018, Karting NSW requested a copy of the Trust Deed from Karting Australia. On 24 May 2018, Karting Australia refused, saying:

On 7 August 2018, Karting NSW’s solicitors again wrote to Karting Australia, requesting a copy of the executed Trust Deed. On 28 August 2018, David Filipetto, Chairman of Karting NSW, wrote on behalf of Karting NSW to Karting Australia and requested information, which included the following:

On 31 August 2018, Karting Australia responded by saying that it did not recognise Mr Filipetto “in any official capacity with regard to [Karting NSW]” because former directors’ appointments terminated in early August. On the same day, 31 August 2018, Karting Australia wrote to “NSW Affiliated Club Presidents” (meaning the Presidents of all karting clubs in New South Wales and the Australian Capital Territory affiliated with Karting NSW). The letter was highly critical of Karting NSW and attached a lengthy schedule entitled “ISSUES AND FACTS” which listed 21 “facts”, the last of which was headed “Track Development Fund”, and said as follows:

On 1 September 2018, being the date of its Annual General Meeting (AGM), Karting NSW proposed to its members that there be a vote of no confidence in Karting Australia’s board and a members’ resolution that Karting NSW cease to be a member of Karting Australia. The motion, which was expressed to be a single motion, had four aspects, as set out in an email dated 1 September 2018 to the members of Karting NSW:

In the covering email which proposed the motion, Karen Newton (State Secretary of Karting NSW) said:

The motion was put to the members of Karting NSW to be voted on by electronic ballot, which remained open for three weeks until 22 September 2018.

Following its AGM, Karting NSW posted the following on its Facebook page:

The reference in the email to the “fund … getting fat and the tracks are not getting developed” was a reference to the disproportionality between the total funds advanced by Karting Australia to Ordinary Members of Karting Australia ($475,649.95, as at 31 December 2017) and the total of the Ordinary Members’ loan accounts as at that date ($1,844,086.69). In other words, Karting Australia was only lending about a quarter of the funds at its disposal although the purpose of the trust was track development.

On 7 September 2018, Karting NSW sent an open letter to its members which outlined the reasons for dissatisfaction with Karting Australia’s conduct of the fund, as follows:

Also on 7 September 2018, Karting Australia wrote to “New South Wales Clubs, Drivers and Officials”. In a lengthy letter, Karting Australia listed various disputes, grievances and issues which it had with Karting NSW, including the trust. The letter explained that the trust had been established pursuant to a deed in October 2005 and that AKA Inc had appointed Karting Australia as a replacement trustee on 12 November 2013. It said in part:

On 11 September 2018, Karting NSW issued a media release to its members which announced that it had recently held its AGM and “with that came a motion to go it alone.”

In a letter dated 17 September 2018 to “New South Wales Clubs, Drivers and Officials” Karting Australia purported to pose and answer the most commonly asked questions, which included the following:

On 22 September 2018, Ms Newton, the returning officer of Karting NSW’s electronic ballot which opened on 1 September 2018, reported that the motion had been carried, with the final votes being 22 in favour, 3 against and no abstentions. On 26 September 2018, Mr Filipetto wrote to the members of Karting NSW to inform them of the steps that would be taken to implement their decision.

On 24 September 2018, Karting Australia sent a letter to its Ordinary Members, including Karting NSW, enclosing a copy of the executed Trust Deed dated 21 October 2013 and a copy of the deed appointing Karting Australia as the trustee of the fund. This was the first time Karting NSW had obtained an executed copy of the Trust Deed, notwithstanding that it had been requesting the document since at least 9 May 2018.

On 27 September 2018, Karting NSW wrote to Karting Australia asking questions, which arose from the documents provided on 24 September 2018, regarding the status of Karting Australia as trustee.

On 12 October 2018, Karting NSW demanded that Karting Australia pay it the amount of $588,959.11, being the then balance of its loan account with Karting Australia.

On 12 October 2018, Karting NSW gave notice to Karting Australia under s 203D of the Corporations Act 2001 (Cth) of its intention to call a general meeting of Karting Australia’s members under s 249F of the Corporations Act. It proposed six resolutions which, in substance, were that six of the directors of Karting Australia be removed as a director with immediate effect. The notice included the following paragraph:

The evidence does not reveal that this meeting was ever convened.

On 30 October 2018, Karting NSW issued a media release informing other clubs that it was considering whether to allow other karting clubs around Australia to become members of Karting NSW. At that time, Karting NSW’s members comprised clubs within New South Wales and the Australian Capital Territory.

In November 2018, Mr Filipetto sent a memorandum to Karting NSW’s members in which he notified them of the response to Karting NSW’s notice for a general meeting of Karting Australia as follows:

Karting NSW proceeded to take unilateral steps to establish its own rules for the conduct of karting races. For example, on 29 November 2018, it announced tyre selections for the “2 Stroke Sprint Classes” for the 2019 competition year. Up until that time, Karting Australia had determined matters such as the tyre selection.

On 1 December 2018, Karting NSW held a board meeting during which it conferred with representatives of karting clubs around New South Wales and the Australian Capital Territory, following which Mr Filipetto sent an open letter to members of Karting NSW in which he confirmed that Karting NSW remained an Ordinary Member of Karting Australia.

On 20 December 2018, Karting Australia issued a Notice of Special General Meeting to take place on 21 January 2019. The notice identified the business of the meeting as follows:

On 4 January 2019, Brett Aird, the President of Karting Queensland, wrote to Karting Australia and listed various matters which he considered constituted misbehaviour under r 3 of the Constitution. The matters included:

Karting Australia forwarded Mr Aird’s letter to all of its Ordinary Members, including Karting NSW.

Under cover of email dated 13 January 2019, Karting Australia sent an explanatory statement to its Ordinary Members regarding the motions before the Special General Meeting on 21 January 2019. The memorandum said that the purpose of the meeting was to afford Karting NSW the opportunity to explain its conduct and to present any evidence or arguments in relation to its conduct. Karting Australia set out the matters relied upon in support of the first resolution (that Karting NSW was not of fit and proper character to remain a member of Karting Australia). The matters relied on included the following: misrepresentations about the trust and the identity of the trustee; misrepresentations about the workings of the trust; failing to pay levies to Karting Australia, notwithstanding demand for same; attempting to charge levies in addition to levies charged by Karting Australia; making its own rules regarding karting competitions; proposing a resolution to disaffiliate; and encouraging clubs from other States (outside New South Wales and the Australian Capital Territory) to join Karting NSW.

Karting Australia also relied on Karting NSW’s demand to be paid the balance of its loan account:

With respect to the second resolution (that Karting NSW be expelled as a member of Karting Australia), the explanatory memorandum referred to the uncertainty created by Karting NSW’s proposal (not yet acted upon) to disaffiliate from Karting Australia.

On 18 January 2019, Karting NSW wrote to the other Ordinary Members of Karting Australia setting out the basis of its grievances with Karting Australia. It alleged that the proposed meeting was unlawful and had been called for an improper purpose; that the explanatory statement was misleading; and that the proposed action to remove Karting NSW as an Ordinary Member of Karting Australia was oppressive and unlawful. The letter was lengthy and had been drafted in consultation with Karting NSW’s lawyers.

On 21 January 2019, a Special General Meeting of the Ordinary Members of Karting Australia was held by telephone. It was attended by the directors and Chief Executive Officer of Karting Australia, and representatives of all the State and Territory karting associations. Mr Filipetto attended on behalf of Karting NSW. He was invited to speak against the motions and began reading from the letter of 18 January 2019 which Karting NSW had sent to the Ordinary Members of Karting Australia. He was told that the letter was taken as read. After some further discussion, the matter was put to the vote. The minutes recorded that, in response to resolutions 1 and 2, the result was as follows: one vote against (NSW); six votes in favour and one abstention (SA).

On 22 January 2019, Karting Australia wrote to Karting NSW informing it that it ceased to be an Ordinary Member of Karting Australia.

On 30 January 2019, Karting Australia wrote to Karting NSW informing it that it had cancelled each of the three loan agreements and demanded immediate repayment of the outstanding amount of principal together with interest on the principal advanced from the date of commencement of each loan.

There is a significant overlap between, on the one hand, the determination whether the accelerated payment and interest provisions in the third loan agreement amount to penalties and whether the conduct of Karting Australia was unconscionable and, on the other, whether Karting NSW is entitled to succeed on its cross-claim. The determination of the cross-claim requires an analysis of the correct legal position regarding the monies in Karting NSW’s loan account with Karting Australia. For this reason, I propose to address the cross-claim first, before considering Karting Australia’s claim under the loan agreements.

Mr Snow submitted that, every year, the trustee notionally distributed the net amount (being the beneficiary’s proportion of the total income less expenses) to each beneficiary and recorded the amount in its balance sheet as a net liability, and that Karting NSW, as a beneficiary, was entitled to have that money paid to it.

Mr Gooley, who appeared for Karting Australia, contended that the trustee had never made any distributions and that the sum total of the original capital contribution (recorded in the accounts for the year ended 31 December 2006), together with driver levies and interest, formed part of the corpus of the trust fund and, unless the trustee made a distribution, would remain part of the trust fund until the vesting date. He submitted that there was no evidence of any resolution having been made by the trustee to make a distribution and that the Court ought not infer that any such resolution had been made. Further, he contended that to construe the trustee’s financial statements in the way for which Mr Snow contended would have the effect of destroying the purpose of the trust since it would denude the trust of its assets and leave it without any funds to make loans to its beneficiaries.

In the alternative, he submitted that, if any distributions had been made, they were limited to the distributions of driver levies and interest for 2006 to 2014 inclusive, and did not include either the original capital sum or any driver levies or interest from 2015 to 2018, which remained subject to the trust until the date of vesting. He submitted that this was the effect of the change of wording in the note to the accounts for those years set out above.

In reply, Mr Snow submitted that the purpose of the trust was enhanced by distribution of all the income of the trust and making it available to beneficiaries by way of loans which were intended to be interest-free. Further, he submitted that the construction for which he contended had the result that the trust, which was not exempt from income tax, could divest itself of its income every tax year and credit it to the beneficiaries’ loan accounts. If any money were received by the beneficiaries, they would not have to pay income tax because, as not-for-profit sporting associations, they are exempt from income tax.

A distribution of trust property has the effect of removing the amount distributed from the corpus of trust property. If the distribution is paid to the beneficiary, the distribution is complete. If the distribution is made but not yet paid to the beneficiary, the amount of the unpaid distribution becomes the subject of a “bare” or “absolute” trust in favour of the beneficiary to which the distribution has been made. As the beneficiary’s entitlement in such a case is absolute (by reason of the distribution), the beneficiary can call for the distribution (under the principles of Saunders v Vautier (1841) 49 ER 282) or obtain judgment for the amount of the distribution in an action for money had and received (see further below).

Karting Australia, as trustee, had an undoubted power under cll 7 and 15(a)(i) of the Trust Deed to pay out capital and make distributions of trust property. The question arises whether it exercised this power to make distributions to Karting NSW and the other Ordinary Members of Karting Australia who were beneficiaries of the trust. I am satisfied that the answer to this question is yes.

For each of the relevant years (2006-2018), the trust reported that its net assets were $1, including in the first financial year of the trust, 2006, when the trust’s financial accounts recorded “capital contributions” from its beneficiaries. For each of those years it recorded income from interest and driver levies. The way in which the trust chose to deal with the capital sums provided at the outset (in 2005), the driver levies it received from its beneficiaries, and the interest payments it received from term deposits and other cash at bank was to credit those amounts to loan accounts in the names of the Ordinary Member beneficiaries. The effect of crediting these amounts to the beneficiaries’ loan accounts, was to distribute the amounts to the beneficiaries. That is, the funds were no longer held by the trustee on trust pursuant to the terms of the discretionary trust; they were held by the trustee on a bare or absolute trust in favour of the beneficiary in the amounts set out in the loan accounts and were repayable on demand by each beneficiary. This interpretation is consistent with the net assets of the trust being $1 at the end of each financial year. It is also consistent with the total liabilities of the trust, which included the amounts in the loan accounts (the balance of each was set out in the notes to the accounts).

Much was made by Fiona Bateman, the expert accountant who gave evidence on behalf of Karting Australia, that because the trust was a special purpose trust, its financial statements did not need to conform to the same accounting standards as otherwise would be required. Further, she admitted that all of her opinions about the effect of the trust’s financial statements rested on her opinion that the trust would not “work” if it had no net assets because each of the beneficiaries could simply demand the balance of the loan account and thereby denude the trust of all the funds which would otherwise be available for track development. On this basis, she rejected the analysis set out above (which conforms with the opinion of Darren Shone, the expert accountant relied on by Karting NSW, whose evidence I accept). She contended that the only way it would “work” would be if the capital sums contributed in 2005 and the driver levies collected every year were added to the trust fund, which would remain in the hands of the trustee until the vesting date. I reject Ms Bateman’s analysis. It is based on a flawed footing and is inconsistent with the terms of the Trust Deed and the trust’s financial statements.

The trustee, by its officers, declared for each relevant year that the financial statements of the trust fairly presented the trust’s financial position. The financial statements were audited. The financial statements constitute prima facie evidence of what is stated in them: s 1305 of the Corporations Act; see also Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 at [394]-[400] (Austin J).

Where a trustee admits a debt to a beneficiary, an action for money had and received lies at the suit of the beneficiary: Edwards v Lowndes (1852) 1 El & Bl 81 at 89; 118 ER 367 at 370; followed in Roxborough v Rothmans of Pall Mall Australia Limited (2001) 208 CLR 516; [2001] HCA 68 at [67] (Gummow J) and applied in Chianti Pty Ltd v Leume Pty Ltd (2007) 35 WAR 488; [2007] WASCA 270 (Chianti) at [58]-[60], [62] and [77] (Buss JA, Martin CJ and Pullin JA agreeing). Chianti was significant in deciding that a common law action (for money had and received) would lie in these circumstances since the claim had been made in the District Court of Western Australia, which did not have equitable jurisdiction.

This principle was approved and applied by the High Court (French CJ, Bell and Gageler JJ) in Fischer, which held that once a trustee distributes trust property to a beneficiary by admitting that it owes a debt to the beneficiary, the amount of the loan money can be recovered by the beneficiary in an action for money against the trustee had and received.

In Fischer, the trustees of a family discretionary trust resolved (extracted at [36]):

In Fisher, the principal assets held by the trust were shares. Notwithstanding the resolution, no shares were transferred and no monies were paid to the beneficiaries. However, a loan by the beneficiaries to the trust was entered in the trust’s financial statements. A year later the trustee recited in a deed of charge that it was indebted to the beneficiaries in the sum of the loan that was recorded in the trust’s financial statements and would pay the debt on demand. The two beneficiaries died without making a formal demand for payment. A majority of the High Court held that the trustee had applied the capital of the trust fund, through the resolution and the financial statements of the trust, by creating a debt reflecting the value of the shares comprising that capital at the time of the application.

French CJ and Bell J said, at [34]:

Mr Gooley submitted that Fischer ought be distinguished on the basis that Karting NSW had not proved that Karting Australia had resolved to make the distributions each year to Karting NSW. I reject this argument. Latitude is given to companies in being found to have made resolutions notwithstanding that no formal meeting has taken place and no resolution has been documented: MYT Engineering Pty Ltd v Mulcon Pty Ltd (1997) 140 FLR 247 at 266 (Powell JA). The intention of the directors of a company may be determined by reference to what they say or do: H L Bolton (Engineering) Co Ltd v T J Graham & Sons Ltd [1957] 1 QB 159 (H L Bolton (Engineering)) at 170-173 (Denning LJ, Hodson and Morris LJJ agreeing). In H L Bolton (Engineering), their Lordships found that the intention of a company to occupy a building was clear from its acts. Thus, the fact that there had been no board meeting or resolution did not mean that the company’s intention had not been sufficiently established. Further, the analysis in Fischer did not depend on the trust having made formal resolutions (although, as it happened in that case, the trustee had made such a resolution) to make distributions.

Thus, the crediting of the loan account of Karting NSW with the initial capital sum, the levies and interest each year constituted an admission by Karting Australia of a debt in favour of Karting NSW in the total sum recorded in the financial statements as the balance of Karting NSW’s loan account.

On the authority of Fischer, it follows that each year, at the time the accounts were signed on behalf of the trustee and declarations made that they fairly represented the trust’s financial affairs, Karting NSW (and all other beneficiaries with loan accounts to the trust) had an action for money had and received in the amount recorded as being the balance of the loan account in its favour. I reject Mr Gooley’s submission that it is possible to distinguish the additional monies credited to Karting NSW’s loan account for the period 31 December 2015 to 31 December 2018 from those that were credited in previous years. He submitted that the changes to the wording of the notes to the account were sufficient to indicate that the trustee’s intention was to retain those funds until the vesting date. This submission is entirely at odds with the balance sheet, which indicates that for these three years, as for the preceding years, the net assets of the trust were $1. Thus, no sensible distinction can be drawn between those amounts which were credited to Karting NSW’s loan account up until 31 December 2015 and those amounts which were credited thereafter.

For these reasons, Karting NSW has established its entitlement to judgment on the cross-claim together with interest at the rates published for pre-judgment interest.

There is no dispute about the calculations of interest under the three loan agreements.

The first issue in relation to the amounts claimed under the first and the second loan agreements is whether Karting NSW was in default under cl 7(h). This turns on the meaning of “Affiliate”, as defined in cl 2(b).

Mr Gooley submitted, first, that the effect of the deeds of assignment dated 16 May 2014 was to make Karting Australia the lender for the purposes of the first and second loan agreements. Secondly, he submitted that it was an implied term of the loan agreements that, if there was an assignment of the debt, the assignee would become the lender for all purposes, including the definition of “Affiliate” in cl 2(b). In support of this proposition, he submitted that the term to be implied fell within the following two categories: first, that the term was so obvious as to go without saying; and, second, that it was necessary to give business efficacy to the loan agreements: B.P. Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 at 283 (Lord Simon, Viscount Dilhorne and Lord Keith), approved in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 347 (Mason J); [1982] HCA 24. On this basis, he submitted that when Karting Australia expelled Karting NSW as an Ordinary Member, there was an event of default under cl 7(h) since Karting NSW was no longer an affiliate of Karting Australia, as lender.

I do not accept these arguments. An assignment is not a novation: Olsson v Dyson (1969) 120 CLR 365 at 388 (Windeyer J); [1969] HCA 3. Thus, Karting Australia did not become the lender for the purposes of the loan agreements. Rather, by reason of the assignment, Karting Australia acquired from the lender (AKA Inc) the chose in action to sue on the debt. The gloss which Mr Gooley sought to place on the definition of “Affiliate” in cl 2(b) is neither necessary to give efficacy to the loan agreement, nor so obvious as to go without saying. It follows from my rejection of this argument that Karting Australia has failed to establish that Karting NSW was in breach of either of the first two loan agreements. In so far as the claim is for interest under these two agreements, it fails.

As referred to above, Karting NSW defends the claim for the outstanding principal and interest under the third loan agreement on three bases: first, that the Special General Meeting held on 21 January 2019 was invalid and that, accordingly, it was not in breach because its expulsion as an Ordinary Member was invalid; second, that the accelerated payment and interest provisions of the third loan agreement constitute a penalty and are therefore unenforceable; and third, that the relevant conduct of Karting Australia was unconscionable pursuant to s 21 of the Australian Consumer Law and that, on that basis, the third loan agreement ought not be enforced. Mr Snow accepted that there was significant overlap between the penalty ground and the unconscionability ground.

Karting NSW argued that the Special General Meeting was invalid because the requirements of r 6 of the Constitution had not been complied with. He submitted that although the effect of r 6(a)(i) was that the Board could not expel an Ordinary Member, it did not follow that an Ordinary Member was not entitled to any of the procedural requirements in r 6(b)-(e) which applied for the benefit of all members and not just those who were not Ordinary Members. Mr Gooley submitted that the effect of r 6(a)(i) was to make r 6(b)-(e) entirely irrelevant to disciplinary action against an Ordinary Member. He accepted that there was a common law duty of procedural fairness which was owed to an Ordinary Member who faced disciplinary action but contended that it had been fulfilled in the present case.

It is not necessary, for the determination of whether Karting Australia is entitled to the relief claimed under the third loan agreement, to determine whether Karting NSW was validly expelled as an Ordinary Member. The only purpose of such determination (no declaratory relief having been sought) would be to determine whether the third loan agreement had been breached (it being common ground that the payments had otherwise been made on schedule in accordance with the terms of the agreement). For the reasons which follow, I consider the interest provisions in the third loan agreement to amount to penalties and the conduct of Karting Australia to be unconscionable such that it ought not be permitted to recover against Karting NSW in circumstances where Karting NSW continues to pay the third loan off in accordance with the terms applicable to the interest-free loan.

The clauses of the third loan agreement which are said to be penal are cll 4, 5 and 6.

There was no issue about the relevant principles applicable to a determination whether a contractual term amounts to a penalty. These were conveniently summarised in Arab Bank Australia Ltd v Sayde Developments Pty Ltd (2016) 93 NSWLR 213; [2016] NSWCA 328 at [74]-[76] (McDougall J, Gleeson CJ agreeing). The principles are as follows:

Mr Gooley submitted that there was no challenge to the interest rate in the event of default per se and that therefore the interest provisions could not amount to penalties. Further, he submitted that the purpose of funding track development for aligned members would be defeated if interest-free loans were available for non-aligned members (assuming that to be the nature of the breach). He did not seek to bring the present case within the ambit of the particular provisions addressed in Kellas-Sharpe v PSAL Ltd [2013] 2 Qd R 233; [2012] QCA 371.

Karting NSW is a not-for-profit sporting association. Karting Australia is, relevantly, a trustee of funds collected from the State karting associations from levies from drivers who participate in karting races. The State karting associations were obliged, as Ordinary Members of Karting Australia, to collect such levies and remit them to Karting Australia. Although Karting Australia distributed the funds to each Ordinary Member by crediting them to loan accounts in favour of each Ordinary Member (for the reasons set out above with respect to the cross-claim), no interest was payable to the Ordinary Members on the balance of their loan accounts. The only income the Ordinary Members received was a proportionate share of interest earned by Karting Australia on term deposits for monies which had not been advanced as loans to Ordinary Members.

Karting Australia advanced $100,000 pursuant to the third loan agreement on 17 February 2017. At that time, the amount standing to the credit of Karting NSW’s loan account was an amount between $558,773.79 (being the balance of the loan account for the year ended 31 December 2016) and $616,065.06. The balance of the three loans made to Karting NSW at that time (including the advance of the third loan) was between the figures in the following table:

Broadly speaking, Karting NSW had borrowed from Karting Australia almost $200,000, about one third of the amount of its funds which stood to its credit in the loan account from Karting Australia. Further, as referred to above, on 4 August 2016, Karting NSW requested that Karting Australia pay to it the monies held on trust on its behalf. Karting Australia refused. Although Karting NSW’s request was not couched in terms of its present action as pleaded in the cross-claim, which is for money had and received, this distinction does not avail Karting Australia. As Gageler J explained in Fischer at [110]-[111], the common law cause of action for money had and received runs in parallel to an action by a beneficiary who is absolutely entitled to trust property. Once the monies received by Karting Australia from Karting NSW were (after deductions) distributed to Karting NSW in the loan account, Karting Australia became the trustee of a bare or absolute trust in the amount of the loan account in favour of Karting NSW. Karting NSW, as the beneficiary, could call for those funds. Alternatively, Karting NSW could claim for the monies as money had and received. Gageler J said in Fischer at [111]:

Thus, from 4 August 2016, one month before the third loan agreement was entered into and approximately six months before the advance, Karting NSW was entitled to the amount standing to its credit in its loan account. Had Karting Australia complied with its obligation as trustee of a fixed trust in the amount of the loan account, Karting NSW would not have had to borrow the $100,000 for the third loan. Further, judging the matter prospectively, Karting Australia’s contractual right to claim back-dated interest was, in these circumstances, extravagant and wholly disproportionate to its “loss”. The only purpose for which Karting Australia was entitled to use the money was to make interest-free loans to its members for the purpose of track development. It was common ground that this was the purpose for which the funds were to be (and were in fact) used by Karting NSW.

Further, the obligation to repay the outstanding principal with interest from the commencement date applies irrespective of the nature of the breach. Thus, the terms of the loan agreement contemplated that the breach might, as here, be wholly separate from any default in payment (it was common ground that there was no default in payment in accordance with the Schedule). The alleged default was that Karting NSW had ceased to be an Ordinary Member. In effect, the provisions of the third loan agreement were being used (and were available to be used, as contemplated prospectively by the terms of the agreement), to punish Karting NSW for conduct which Karting Australia regarded, whether rightly or wrongly, as warranting its expulsion as an Ordinary Member. Karting NSW’s conduct in challenging Karting Australia’s administration of the trust was entirely separate from the repayment of the loan or the purpose of the advance.

For these reasons, I am satisfied that the contractual terms of the third loan agreement which required Karting NSW to pay the whole of the outstanding principal following a breach which was unrelated to its performance of the repayment terms and which required it to pay back-dated interest on the sum outstanding amounted to a penalty and are unenforceable.

It is not necessary, in circumstances where I have found the accelerated payment and interest provisions to be penal and therefore unenforceable, to determine whether Karting Australia’s conduct is also unconscionable. However, for completeness, I propose to do so.

Section 21 of the Australian Consumer Law relevantly provides that a person must not, in trade and commerce, in connection with the supply of goods or services, engage in conduct that is, in all the circumstances, unconscionable. The Full Federal Court has confirmed that “in all the circumstances” in s 21 incorporates all of the conduct to be assessed: Australian Competition and Consumer Commission v Medibank Private Ltd (2018) 267 FCR 544; [2018] FCAFC 235 at [232]-[236] (Beach J, Murphy J agreeing).

Section 22 of the Australian Consumer Law sets out the matters to which the court must have regard in determining whether there has been a contravention of s 21, which, relevantly, include but are not limited to the following:

In support of its submission that Karting Australia’s conduct was unconscionable within s 21 of the Australian Consumer Law, Karting NSW relied, in its written closing submissions, on the following actions and inactions of Karting Australia:

The conduct in (a) is established, as is evident from the analysis of the accounts set out above. Karting NSW’s contributions to the funds available for loans exceeded its total loans by a factor of about three (at the time the third loan agreement was entered into and also when the advance was made).

As to (b), for some time, Karting Australia resisted providing the executed Trust Deed to Karting NSW. For example, as extracted above, on 24 May 2018 Karting Australia told Karting NSW that it believed that Karting NSW was not entitled to the executed Trust Deed until the vesting date. Further, it insisted on a legal position (that Karting NSW had no present entitlement at law or in equity to the funds standing to its credit in the loan account and would have no entitlement to such funds until the vesting day) which I have found to be incorrect (see above).

As to (c) and (d), it is apparent from what I have set out above that Karting NSW’s major grievance was being denied access to the balance of its loan account. In response, Karting Australia wanted to expel Karting NSW and enforce the accelerated payment and interest provisions of the loan agreements so as to stymie any challenge to its conduct as trustee. Karting Australia obviously regarded Karting NSW as a troublemaking dissenter and appeared to want to make an example of it to other Ordinary Members so that others would not follow. Karting Australia’s desire to ostracise and punish Karting NSW so as to deter others can be inferred from the extract set out above from Karting Australia’s letter of 17 September 2018 to Karting NSW in which it said (after setting out a calculation of Karting NSW’s total liability under the three loans of $297,000):

Further, while Karting NSW had indicated that it was considering disaffiliation, its concerns principally arose from the handling of the trust funds and the failure by Karting Australia to pay to it money to which it was, at law and in equity, entitled. I have found, for the reasons given above, that Karting NSW was entitled to make the claim and entitled to be paid the money. Karting NSW’s construction of the Trust Deed and of the financial statements of Karting Australia, as trustee, was correct. Karting Australia’s legal stance was incorrect and amounted to a breach of the fiduciary duties which it owed to Karting NSW as beneficiary of a fixed trust of the sum standing to its credit under the loan account (in the sense explained by Gageler J in Fischer, as set out above). By expelling Karting NSW as an Ordinary Member (whether the expulsion was valid or not), Karting Australia was using its powers to get rid of the one voice which was challenging its legal errors. Karting NSW was both a beneficiary under a discretionary trust (the trust property of which was $1) as well as being a beneficiary under a bare or absolute trust (the trust property of which was the amount standing to its credit in its loan account). As a trustee, Karting Australia was obliged to inform itself of the terms of the trust and of the effect of its own conduct on its beneficiaries. By persistently misrepresenting the legal position to Karting NSW, Karting Australia behaved in a manner which I am satisfied was unconscionable.

This is not to say that any individual involved behaved unconscionably. Unlike common law principles, which may, in many instances, accord with an instinct for right and wrong, the law of trusts is not particularly accessible to non-lawyers. But the circumstance that the individuals through whom Karting Australia acted were not malevolent or consciously engaging in trickery or deception or active thwarting of Karting NSW’s legal entitlement is not determinative of whether Karting Australia itself engaged in unconscionable conduct. Thus, Karting Australia may be found to have acted unconscionably, even though the humans through whom it acted, may have honestly believed in the correctness of their stated legal position.

Further, it is not to the point that Karting Australia’s breach of trust (by not paying over the money to which Karting NSW was entitled on demand) may have been “innocent”, in the sense in which that word is used when determining whether a breach of trust should be excused as honest but mistaken: see, for example, Adams v Alemite Lubrequip Pty Ltd [1994] NSWCA 1. In the present case, it is the trustee which seeks judgment on its claim against Karting NSW. The trustee is not seeking to be excused from its breach of trust; indeed, it denies that there has been any such breach. The funds claimed by Karting NSW are still available to the trustee to be paid to Karting NSW. As there is no issue about the solvency of Karting Australia, the action for money had and received is, as pleaded by Karting NSW, an appropriate remedy.

As I have determined that the challenged provisions in the third loan agreement are unenforceable, it is not necessary to make orders under ss 237 or 243 of the Australian Consumer Law, varying the third loan agreement to delete the accelerated payment and interest provisions or ordering compensation to be paid to Karting NSW, since it is sufficient to enter judgment for the defendant on the plaintiff’s claim. Because no breach other than the affiliation breach is relied upon, it is not necessary to address what the terms would be if there was a breach in complying with the repayment schedule since this question is, in these circumstances, hypothetical.

At the conclusion of the hearing, I indicated to the parties that they would have an opportunity to be heard on the question of costs. Accordingly, I propose to make a provisional order, which is subject to the rights of either party to apply for a different order. In that event, I will make directions in chambers with a view to determining any outstanding question of costs on the papers.

For the reasons given above, I make the following orders: