Caernarvon Canobolas Pty Ltd (in liquidation) – NSW Supreme Court Case 2018/340546

Biteroit - Caernarvon Cherry

 [2022] NSWSC 382

published 29 August 2022

Decision extracted and sourced from: https://www.caselaw.nsw.gov.au/decision/17ff234b71f1540bb837f52a#

Medium Neutral Citation:

In the matter of Caernarvon Canobolas Pty Ltd (In Liq) [2022] NSWSC 382

Hearing dates:20 – 23 July and 10 – 11 August 2021

Decision date:05 April 2022

Jurisdiction:Equity

Before:Ward CJ in EqDecision:

1.   The appeal be allowed.

2.   The liquidator’s determination to admit the proof of debt dated 15 November 2019 submitted by the second and third respondent be set aside and the proof of debt be rejected.

3.   The second and third respondents pay the costs of:

(a)   the applicant and the first respondent of and incidental to the amended interlocutory process in this proceeding; and

(b)   the applicant and the first respondent (including liquidation costs, expenses and liquidators’ remuneration) of and incidental to the submission, consideration and determination by the liquidators of the proof of debt dated 15 November 2019 submitted by the second and third respondents.Catchwords:

CORPORATIONS – Winding up – Proceedings against company – Where debt disputed – whether parties reached agreement that costs of renovations would be recorded as a loan against the company

EVIDENCE – Documentary evidence – Business records – whether records were contemporaneous or issued retrospectively

ESTOPPEL – Promissory estoppel – Existing or expected legal relationship – whether the Company accepted or acquiesced to a benefit to the detriment of the second and third respondents

EQUITY – Equitable remedies – RestitutionLegislation Cited:

Corporations Act 2001 (Cth), ss 286, 477(2B), Schedule 2

Evidence Act 1995 (NSW), ss 48, 57(1), 58(1), 69

Supreme Court (Corporations) Rules 1999 (NSW), r 14.1(5)

Trustee Act 1925 (NSW), s 81Cases Cited:

Angas Law Services Pty Ltd (in liq) v Carabelas (2005) 226 CLR 507; [2005] HCA 23

Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355

Brick & Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1992) 6 ACSR 464; [1992] 2 VR 279

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2020] NSWSC 1778

Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230

Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26

Capocchiano v Young [2013] NSWSC 879

Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389

Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39

Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87

David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48

DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348

Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105

Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15

El-Saafin v Franek (No 3) (2019) 143 ACSR 452; [2019] VSC 155

Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Federal Commissioner of Taxation v Cassaniti (2018) 266 FCR 385; [2018] FCAFC 212

Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215; [1997] HCA 17

Gregg v The Queen (2020) 355 FLR 348; [2020] NSWCCA 245

Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58

Herdegen v Commissioner of Taxation (Cth) (1988) 84 ALR 271; [1988] FCA 699

Hill v Esplanade Wollongong Pty Limited (subject to a deed of company arrangement) [2018] NSWSC 478

Hutchinson v Sydney (1854) 10 Ex 438

In re Bailey, Hay & Co Ltd [1971] 1 WLR 1357

In re Express Engineering Works Ltd [1920] 1 Ch 466

In re Oxted Motor Co Ltd [1921] 3 KB 32

In the matter of Azmac Pty Ltd (In Liq) (2020) 146 ACSR 113; [2020] NSWSC 204

In the matter of Hillsea Pty Limited [2019] NSWSC 1152

Johnston v McGrath (2008) 67 ACSR 169; [2008] NSWSC 639

Jorden v Money (1854) 5 HL 185

Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11

Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635; [2008] HCA 27

MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; [1999] HCA 24

Parker & Cooper Ltd v Reading [1926] Ch 975

Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5

Re ACN 096 281 542 Ltd (in liq) [2018] VSC 425

Re Duomatic Ltd [1969] 2 Ch 365

Re St Gregory’s Armenian School Inc (2015) 109 ACSR 27; [2015] NSWSC 1465

Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 984

Rosseau Pty Ltd (in liq) v Jay-O-Bees Pty Ltd (in liq) (2004) 50 ACSR 565; [2004] NSWSC 818

Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497

Spencer v The Commonwealth (1907) 5 CLR 418; (1907) 14 ALR 253

Sutherland (in his capacity as liquidator of Sydney Appliances Pty Ltd (in liq)) v Robert Bosch (Australia) Pty Ltd (2000) 33 ACSR 680; [2000] NSWSC 32

Tanning Research Laboratories Inc v O’Brien (1990) 169 CLR 332; [1990] HCA 8

Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7

Watson v Foxman (1995) 49 NSWLR 315

Westpac Banking Corp v Totterdell (1998) 20 WAR 150; (1998) 29 ACSR 448

Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363Texts Cited:

P L Davies, Gower and Davies’ Principles of Modern Company Law (7th ed, Sweet & Maxwell, 2003)Category:Principal judgmentParties:Timothy Hall (Plaintiff)
Bonny Glen Fruits Pty Ltd (First Defendant)
Bernard Hall (Second Defendant)
Bonny Glen Trading Pty Ltd (Third Defendant)
Caernarvon Canobolas Pty Ltd (Fourth Defendant)
Melrose Park Nashdale Pty Ltd (Fifth Defendant)
Frederick Charles Hall (Sixth Defendant)
Pamela Therese Hall (Seventh Defendant)Representation:Counsel:
D Smallbone with A Smyth (Applicant)
A Spencer (2nd and 3rd Respondents)

Solicitors:
MC Lawyers & Advisers (Applicant)
Matthews Folbigg Pty Ltd (2nd and 3rd Respondents)
File Number(s):2018/340546

Publication restriction:Nil


JUDGMENT

  1. HER HONOUR: By amended interlocutory process filed on 5 November 2020, the applicant (Timothy Hall) appeals from the decision of the liquidators of the first respondent (Caernarvon Canobolas Pty Ltd ACN 089 276 808 (In Liquidation), to which I will refer as the Company) to admit a proof of debt dated 15 November 2019 that was lodged by the second and third respondents (Bernard and Fiona Hall) on 26 November 2019. In that proof of debt, Bernard and Fiona claim the sum of $800,000 as due under an oral loan agreement alleged with the Company. Timothy seeks to set aside the determination of the liquidators (who have been joined together as the fourth respondent in the proceeding). The moneys claimed in the proof of debt relate to expenditure made by Bernard and Fiona on the Homestead occupied by them (rent free) on land then owned by the Company in Canobolas, New South Wales (the Canobolas Property). Fiona and a company associated with Bernard and Fiona have since acquired the Canobolas Property.
  2. The appeal is a hearing de novo, brought pursuant to s 90-15 of Schedule 2 to the Corporations Act 2001 (Cth) (Corporations Act), the Insolvency Practice Schedule (Corporations), (see Hill v Esplanade Wollongong Pty Limited (subject to a deed of company arrangement) [2018] NSWSC 478 at [21] per Gleeson JA). There is no dispute between the parties as to the principles that apply to such an appeal (see Re ACN 096 281 542 Ltd (in liq[2018] VSC 425 at [6] per Randall AsJ; El-Saafin v Franek (No 3) (2019) 143 ACSR 452; [2019] VSC 155 at [63] per Lyons J; In the matter of Azmac Pty Ltd (In Liq(2020) 146 ACSR 11; [2020] NSWSC 204 at [41] per Rees J); although there was some dispute in submissions as to the question of onus.
  3. Bernard and Fiona point to authorities to the effect that the party appealing against the liquidator’s decision (here, Timothy) bears the onus of showing that the decision was wrong; and that, if the onus is not discharged, the liquidator’s decision stands (see Westpac Banking Corp v Totterdell (1998) 20 WAR 150; (1998) 29 ACSR 448 at 451; Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 at [32]-[33] per Young CJ in Eq; Capocchiano v Young [2013] NSWSC 879 at [46] per Kunc J; Re St Gregorys Armenian School Inc (2015) 109 ACSR 27; [2015] NSWSC 1465 (Re St Gregorys Armenian School)). Timothy, on the other hand, says that the liquidators did not turn their minds to the question of contract, and did not accept that there was a restitutionary claim (T 367.24-48). Moreover, Timothy says that there is a lack of contemporaneous record or other satisfactory corroboration of the existence of a contract, which he argues places the case “squarely in Watson v Foxman territory” (referring to the oft-cited decision of Watson v Foxman (1995) 49 NSWLR 315). Timothy submits that the effect of this is that Bernard and Fiona bear the onus of establishing the proposition for which they contend in their points of claim (T 25.43).
  4. The relevant issue to be determined on an appeal such as this is as to whether the liability claimed or referred to in the proof of debt is a true liability of the company enforceable against it (see Tanning Research Laboratories Inc v OBrien (1990) 169 CLR 332; [1990] HCA 8 at 339-340 per Brennan and Dawson JJ). On such an appeal, the party claiming to be a creditor of the company (here, Bernard and Fiona) is not strictly confined to the allegation(s) by which it originally sought to advance the proof of debt; it being said that “[a]s long as the claim remains the original claim, some change in the explanation of the way in which it is said to be a true liability of the company enforceable against it is permitted” (Johnston v McGrath (2008) 67 ACSR 169; [2008] NSWSC 639 at [26] per Barrett J; and see Rosseau Pty Ltd (in liq) v Jay-O-Bees Pty Ltd (in liq(2004) 50 ACSR 565; [2004] NSWSC 818; Re St Gregorys Armenian School).

Background and chronology of events

The family business

  1. For convenience, I will generally refer to the Hall family members by their first names. The applicant (Timothy) and the second respondent (Bernard) are brothers. Their parents (Fred and Pamela) established a fruit growing business near Orange (operating through a number of companies and from a number of properties located in two adjoining districts, Canobolas and Nashdale, on either side of the Towac Valley). The first such property was known as the Bonny Glen Property. The fruits that were grown, packed and sold were principally apples and cherries (see [5] of Timothy’s first affidavit sworn 16 April 2021).
  2. Timothy started working in the family orchardist business full time in 1978. Bernard, who is around eleven years younger, commenced work in the family business either in 1989 (on Timothy’s version of events – see Timothy’s 16 April 2021 affidavit at [6]) or a few years earlier when aged 16 (on Bernard’s version of events). Nothing turns on the difference in the respective versions of events in this regard.
  3. In about 2004, Bernard and his wife, Fiona, incorporated their own company (Caernarvon Cherry Pty Ltd) through which they traded separately from the family business. (It appears that the operation of this business was a cause of some disagreement between the brothers – see, for example, Timothy’s first affidavit at [30]).
  4. Prior to 2007, the main trading company for the family business was Bonny Glen Pty Ltd; after 2007 (when Fred and Pamela retired from the business) a different company, Bonny Glen Fruits Pty Ltd, was the main trading company (see Timothy’s first affidavit at [12]). The Company owned the land and improvements at the Canobolas Property but did not trade.
  5. From 2007 (until 27 November 2018), the family business (known as Bonny Glen Fruits) was largely operated by Timothy and Bernard, who also controlled the various companies associated with the business, although their parents are said to have maintained some ongoing (informal) involvement in the business. From 2011, Timothy and Bernard each owned 50% of the shares in the Company.

The Nashdale (or Melrose) Property

  1. In 1992, the Nashdale Property (referred to in some of the evidence as Melrose) was acquired jointly by Fred, Pamela, Bernard and Timothy. This property was adjacent to a property known as Brooklyn (that property itself being adjacent to the originally acquired Bonny Glen Property).
  2. In around 1997, the Nashdale Property was subdivided to create a parcel of six acres which was transferred (at no cost) to Timothy and his then wife, Jennifer, who then built a house on the land. (It is noted by Bernard and Fiona that Bernard received nothing for his interest in that portion of land.) The parcel of land transferred to Timothy and Jennifer (known as Melrose Park) was subsequently sold by Timothy and Jennifer in 2001, following the breakdown of their marriage. Following his separation from Jennifer (apart from a short time at the Bonny Glen Property), Timothy resided (and from 2004 did so with his wife, Robyn) in Melrose Cottage, which was located on the main Nashdale Property, until about 2019.
  3. In around 2007, Timothy and Bernard bought Brooklyn from their parents and in 2013 they jointly acquired another property in Nashdale (see Bernard’s first affidavit sworn 19 April 2021 at [44]-[45]).
  4. Timothy has, as I understand it, largely controlled or managed the Nashdale side of the family business operations; Bernard and Fiona, the Canobolas side of the operations.

Canobolas Property

  1. The Canobolas Property was acquired by the Company in September 1999 for $630,000. The Company was formed for the purpose of making that acquisition. On its incorporation, each of Fred, Pamela, Bernard and Timothy was a director of the Company and each held one of the four issued shares. In 2010, Fred and Pamela retired as directors and in 2011 Bernard and Timothy each acquired one of their parents’ shares. Accordingly, by the time of the events in question, each of Bernard and Timothy was a 50% shareholder of the Company. As adverted to above, at all relevant times the operations of the family business that were conducted on the Canobolas Property were managed by Bernard and Fiona.
  2. From late 1999, Bernard and Fiona have resided in a house known as “the Homestead” located on the larger of the two lots (Lots 10 and 11) comprising the Canobolas Property. On the other (smaller) of the two lots is a packing shed housing the relevant equipment and other infrastructure for the processing and packing of the fruit grown in the family business (and also, as I understand it, in Bernard and Fiona’s separate cherry growing business); as well as an office.

Corporate compliance

  1. For the most part, compliance with the corporate and regulatory requirements of the companies through which the family business was conducted was carried out with the assistance of an accountant (Mr Desmond Lee), who travelled to Orange from Sydney once a year with relevant company documents to be executed following the holding of formal meetings with the directors and shareholders (such meetings being held, first, at Fred and Pamela’s house (on the Bonny Glen Property) and then at the Canobolas Property).
  2. Bernard and Fiona describe these company documents as “vanilla” corporate governance documents (T 8.4). They point out that the minutes of company meetings were prepared in advance by Mr Lee, who brought them with him to the annual meetings; and they contend that therefore that the minutes could not (unless, I would add, later amended) reflect any matters discussed at the relevant meetings. They also point out (correctly) that the company documents are replete with errors – from time to time identifying the directors wrongly; being signed by people who were not directors; and recording persons who owned no shares as attending in the capacity of shareholders (see T 8). Thus, it is said that the brothers cannot carefully have reviewed them. It is submitted (and there is some force in this submission) that the holding of meetings and recording of minutes for the various companies associated with the business were matters treated by family members as a formality.
  3. Bernard and Fiona describe Mr Lee as more than just an accountant. They say that he was a trusted adviser, who advised the family members as to the structures to be put in place for or in relation to the business and as to their personal and corporate tax affairs. That may well be the case but, as I explain in due course, that does not to my mind cloak Mr Lee with authority to bind any of the family members or the Company in their dealings with each other.
  4. Timothy (see from [35] of his 16 April 2021 affidavit) describes the typical yearly meetings with Mr Lee, including that there would be separate meetings with the shareholders and directors of the relevant companies from those in relation to personal tax matters or meetings relating to “Caernarvon Cherry related matters”. Mr Lee’s evidence as to those matters is consistent with that of Timothy on this issue.

Deterioration in the relationship between the brothers

  1. At some point there was evidently a deterioration in the relationship between the two brothers (although there is some contention as to when this commenced). Timothy places this as occurring from about the late 2000s, from which time he says that he and Bernard were estranged and only saw each other a few times a year (see at [33] of his affidavit dated 16 April 2021). As adverted to above, it appears that this (if not wholly attributable to, then at least) may have been exacerbated by the establishment by Bernard and Fiona in about 2004 of their own separate cherry growing business from the Canobolas Property. Fiona herself says that the relationship between Timothy and Bernard became “toxic” but places this as occurring in 2016 after a heated argument between the brothers in that year (see Fiona’s first affidavit sworn 19 April 2021 at [30]; and see notes dated 8 February 2017, apparently made by Timothy having regard to their content, in which there is reference to an issue as to the poor delivery of the spray programme). Consistent with this note, Bernard places the deterioration in the relationship as occurring by 2017.

Desire of Bernard and Fiona to renovate the Homestead

  1. The Homestead was originally built in about 1910. By 2012, Bernard and Fiona, who then had three young children, wished to renovate the house (which they say was in need of significant repair). As noted, by that time Bernard and Timothy were the only directors and shareholders of the Company, which owned the Canobolas Property.

14 September 2012 meeting

  1. Featuring prominently in the evidence and submissions were two meetings, the first of which is said to have taken place on 14 September 2012 at Fred and Pamela’s house during a lunch (or perhaps morning tea) attended by Timothy, Bernard and Fiona, Fred and Pamela (see Bernard’s first affidavit at [144]; Fiona’s first affidavit at [79]). It is not suggested that Mr Lee was in attendance at that meeting. Indeed, Mr Lee’s evidence is that he was not present in Orange on 14 September 2012 (being in attendance at an all day meeting with another client in Sydney) and he did not know if there had been a meeting on that day (see at [32] of Mr Lee’s first affidavit sworn 19 April 2021).
  2. Bernard has deposed (at [144]) that, at this lunch, there was a discussion about the family business, during which there was the following conversation:

[Bernard] said:   Fiona and I want to renovate the Homestead to fix some issues and make the house bigger for our kids. We have the money, and can use our own, but we are worried about what will happen if the Company ever sells or transfers the house. We want to make sure that we can get that money back if the Homestead is ever sold or transferred.

Tim said:   Before you think about renovating, why don’t you look at subdividing the lot like I did at Melrose. If that doesn’t work then you can do the renovations.

[Bernard] said:   Okay, Fiona and I will look into that and let you know how it goes.

  1. Bernard has deposed that, following that conversation, Fiona and he attended a consultation with Mr Peter Basha, the town planner, about a possible subdivision; and that Mr Basha subsequently advised them that the Council would not permit the subdivision because the packing shed (on the smaller of the two lots) was on an industrial lot and that they could not combine that back with the main lot (see Bernard’s affidavit at [146]-[147]).
  2. Fiona’s account of this discussion (see from [79] of her first affidavit) is that the conversation occurred at a morning tea with Bernard, Timothy, Robyn, Fred and Pamela at the Bonny Glen Property. Fiona deposes that she took notes of the discussion because Mr Lee had earlier said to Timothy and Bernard that they needed to begin having meetings and recording the discussions; and that, as Mr Lee did not attend this meeting she took a record for Mr Lee (see at [81]). Fiona also deposes that at the beginning of the discussion she asked everyone’s permission to take notes and that Pamela approved this (see at [84]).
  3. Fiona has deposed that Bernard raised that they wanted to undertake renovations of the Homestead in words to the following effect:

Bernard said:   We need to do some work to the Homestead because the old electricity is dangerous and we now have 2 young children and a Toddler. We want to renovate but it’s going to cost a lot because it’s an old house and like opening a can of worms, so our money needs to be recognised. We need bathrooms, a new laundry, electricity, new bedrooms, proper heating and such.

Tim said:   Why don’t you go and look at other ways first like look at buying Armstrong’s [next door neighbour’s at Melrose] place or buying another house somewhere.

Pam said:   Or why don’t you see if you can move the title and get 6 acres like Tim did? You’ve got these little kids and need something sorted as we just had a cold winter and the place is freezing. Something needs to be sorted.

Bernard said:   Okay, we’ll look at other options.

  1. Fiona also deposes to a consultation with Mr Basha about the proposed subdivision and to Bernard’s account of the Council’s position shortly after that consultation (see [88]-[90] of Fiona’s first affidavit), which is consistent with Bernard’s recollection.
  2. Bernard and Fiona refer to the above evidence and say that they told those present at the meeting that they were prepared to use their own funds to pay for the renovations at the Homestead but wanted to be able to recover those funds if the Company or the property was ever sold. They also say that Timothy said that, if the Canobolas Property could be subdivided and a small block transferred to Bernard and Fiona, he would consent to the subdivision and Bernard and Fiona could build a new home on the subdivided block. (The above summary by Bernard and Fiona of the conversation does not wholly accord with their affidavit evidence; in which they attribute to Timothy suggestions about other options such as buying another property or subdivision but not consent in terms to the subdivision option.)
  3. Fiona’s handwritten notes of the meeting of 14 September 2012 (which she says, but Timothy and Mr Lee seem to dispute, she took at the meeting) record the presence of Timothy and Robyn, Bernard and Fiona and Pamela and Fred; that the meeting went from 9am to 10.30am; and, among other things, that:

–   House @ Caernarvon

B&F expressed wanting to renovate house but for $ sunk into place to be recognised.

Tim suggest to look @ other options.

  1. At the conclusion of the notes there appears an entry in a different coloured pen. This page of the notebook was followed by a printed document headed “A snapshot as of 13th September 2012”, which appears to correspond to the entry in the handwritten notes “Fiona gave snapshot of season to date (enclosed)”. This suggests that at least part of the notes (such as the pasting of the printed note into the book) was compiled after the meeting. Immediately following the second page of the pasted typed sheet are handwritten notes headed “Monday 1st October 2012” starting in a blue pen and then changing to a black pen. There was a suggestion that one of the entries “follow Des up 400k” was in Bernard’s handwriting (T 110.40). The following page (whimsically headed Maggie’s minutes) was obviously a child’s scribblings.
  2. Timothy (see at [56] of his first affidavit) deposes that he does not recall the entirety of the conversations concerning improvements to the Homestead and cannot be sure when each conversation took place, or in which years, or the order of the conversations or exact words used. Timothy did recall one of those conversations (at [59] of his first affidavit) (which he says was in the dining room at his parents’ house during an annual visit of Mr Lee) in which he says that Bernard said that the house was very cold in winter and they needed to update the heating (which he says he queried but then, after Bernard said they needed heating, to which he said “OK”); and that during one of the annual meetings Bernard said words to the effect that the house needed to have new heaters put in and that they wanted to do a new bathroom (see at [63]).
  3. Bernard and Fiona submit (at [33] of their written submissions) that the parties’ accounts of what happened at this meeting (and the subsequent 16 May 2013 meeting) should be read in light of the fact that what occurred at the meeting was specifically pleaded in their Points of Claim and put in issue by Timothy’s Points of Defence. Essentially, Bernard and Fiona submit that Timothy’s denial that the two meetings occurred as they described is not supported by his own evidence of what occurred at those meetings. This submission appears to be directed towards the argument that Timothy has failed to discharge the onus of proof to support a finding that the liquidator’s decision was wrong.
  4. To this end, Bernard and Fiona emphasise that, in his first affidavit, Timothy gave no specific evidence about the meeting of 14 September 2012 and conceded that he did not “recall the entirety of conversations that took place concerning improvements to the house at [the Canobolas Property]”. (As noted, there is no suggestion that Mr Lee was at the meeting of 14 September 2012.)
  5. In his second affidavit sworn 17 May 2021, Timothy responded to various aspects of the affidavit evidence of Bernard and Fiona with which he disagreed. It is noted that Timothy did not traverse [144] of Bernard’s first affidavit (set out above) but that he did reject those parts of the conversation recorded in Fiona’s account (see above) that referred to “electricity, Melrose or Armstrong’s property” and instead deposed to having suggested a different property. Bernard and Fiona emphasise that Timothy did not specifically contradict that part of the conversation in which Bernard expressed the aim that their expenditure of funds be recognised. (Pausing here, what is not here made clear is precisely how it was contemplated by Bernard that their funds would be recognised; nor is it suggested that Timothy agreed to any such arrangement at this meeting. I also interpose to note that Bernard and Fiona do not suggest that any agreement was reached at this meeting; rather, they rely on this as context or background.)

Prospect of Subdivision

  1. As noted above, Bernard and Fiona depose that, following the 14 September 2012 meeting, they explored the prospect of a subdivision of the Canobolas Property (by speaking with Mr Basha, the town planner) and that they were advised that it would not be possible. They say that Timothy was aware of that (a reference seemingly to the account given by Bernard of the conversation on 16 May 2013 – see below).

16 May 2013 meeting

  1. The second of the two meetings on which Bernard and Fiona here place emphasis (and at which they say a binding agreement was reached) was a meeting that took place on or about 16 May 2013 during one of Mr Lee’s annual visits to Orange.
  2. Mr Lee deposes that the meeting took place at Fred and Pamela’s residence; and he describes in his affidavit a series of meetings on this day (see from [35]).
  3. First, a meeting of the Bonny Glen Fruits Pty Limited Group (attended by Timothy, Bernard and Fiona) to review the financial accounts and taxation for the financial year 2012 and interim accounts for 2013 and for the signing of the 2012 accounts and financial returns, at which meeting he deposes that Fiona said words to the effect that they currently needed better heating at that Homestead and Timothy said he had no problem with them improving the heating. Mr Lee did not recall anyone taking notes on that occasion.
  4. Second, a meeting with Timothy alone in which Mr Lee presented to him the company’s financial statements and taxation returns and personal returns for the financial year ending 30 June 2012, following which meeting he says Timothy immediately left the house, saying that he was taking the documents home to Robyn so that they could sign them (and Timothy returning later in the afternoon with signed documents).
  5. Third, while Timothy was out of the house, a meeting only with Bernard and Fiona to review their entities’ financial statements taxation and personal returns for 30 June 2012.
  6. Fourth, a meeting with Pamela and Fred for them to review and sign their own company’s financial accounts and their personal tax returns.
  7. Mr Lee did not see any minutes book or hard-bound blue book (Exhibit 12) on that day (see at [44] of his affidavit of 19 April 2021). He deposes that he did not add any further resolutions to the formal draft minutes that he had prepared in advance for the Company meeting and that he was not asked to prepare any such notes or minutes. Mr Lee did, however, earlier depose that at some meetings he saw Fiona take notes (see at [20]).
  8. Relevantly, at [64] of his affidavit of 19 April 2021, Mr Lee deposed that at none of the yearly meetings had he heard that Fiona or Bernard wanted to claim reimbursement from the Company for the costs of the renovations for the Homestead. (That is consistent with their account being that they wanted some unspecified recognition in the future of their expenditure.)
  9. Bernard’s evidence of the meeting was that it was at a lunch at the Caernarvon Cottage with Fiona, his parents, Mr Lee and Timothy. Bernard deposes that the conversation was to the following effect:

[Bernard] said:   We spoke to a town planner and they won’t let us subdivide the lot. We still want to update the Homestead and extend it, so we want to go ahead with the renovations. How do we go about that?

They said:      Where will you get the money from?

[Bernard] said:   We can pay for the renovations ourselves or through Caernarvon Cherry, but we want all the money we put into the Homestead to be recognised if the place is ever sold or transferred to someone else.

Des said:   You should also get a valuation before you do the renovations, and then another valuation after so you can see how much the Homestead is improved. It could be important if you need to pay some tax on it in the future.

[Bernard] said:   Okay, we can do that. But more importantly we want to get our money back that we put in, so we want the money we spend on the renovations to be accounted for by the Company somehow.

Des said:   Okay. Keep your receipts so that we can see how much you spend on the renovations and we can put that in the records of the Company as a debt owed to you and Fiona. Then the Company can easily pay you back if the Homestead ever sells. We can also make sure that you get paid interest, for example at an interest rate equivalent to the change in the Consumer Price Index until you are repaid.

[Bernard] said:   That sounds like it does everything we want, let’s do that.

Des said:      Does everyone agree to doing it that way?

Tim said:      Yeah, I’m okay with that.

  1. Bernard has deposed that he saw Fiona writing in the minute book during that meeting and identifies in his affidavit the notes of that meeting.
  2. Fiona’s evidence is that this meeting was at “another lunch” with Bernard, Timothy, Fred and Pamela, at Pamela and Fred’s house at Bonny Glen, for the purpose of going over the accounts and financials with Mr Lee who had travelled from Sydney. Fiona says that the meeting was while sitting around the kitchen table and that there was a discussion in words to the following effect:

Bernard said:   We’ve been told we can’t do a subdivision so we’re back to the drawing board and want to renovate 474 Canobolas.

Armstrong’s place want too much money and we want to stay on the property and don’t want to be living at Melrose and working at Caernarvon. Either way, it isn’t an option to build another house on Caernarvon because we’d have the same issues with wanting the money to be recognised because it would be Company land. So, we think we may as well renovate the Homestead.

Tim said:   Okay.

Bernard said:   We aren’t asking for money, just asking if we can spend own money on the place because we would be doing large scale renovations. How can we have our money recognised?

Des said:    Keep all your receipts so that we can see how much you spend on the renovations and I’ll put that on the books of the Company. Each year we can add the CPI to the amount you’ve spent and it’ll be on the books as a loan. But if you do overcapitalise [sic]

Bernard said: Okay let’s do that. That’s fine, we will be responsible if we overcapitalise.

  1. Fiona goes on to depose that she is unable to recall whether the subject of valuation was raised at the 16 May 2013 meeting or whether it was raised in a later discussion but that, at some point after the 16 May 2013 meeting, she was present at a conversation between Timothy and Bernard in words to the following effect:

Des said:   Get a valuation before you do the renovations, and then another valuation after that so that you don’t overcapitalise.

We said:   Okay, if we do then that’s our money and we will be responsible for that.

  1. Fiona says that Timothy agreed with that proposition (at [94] of her first affidavit sworn 19 April 2021).
  2. Bernard and Fiona say that an agreement was reached at this meeting that they (Bernard and Fiona) would fund the renovations to the Homestead and that, if the property was ever sold, the Company would repay those amounts together with interest at a rate equivalent to the CPI. They say that it was also agreed that the amounts so expended would be recorded in the accounts of the Company as a debt owed to Bernard and Fiona. (Both Timothy and Mr Lee dispute this. For Timothy, it is said that this amounts in effect to arguing that the Company would give Bernard and Fiona a “blank cheque” to spend whatever they liked on the property and that this is implausible – see T 360.31. It would certainly be inconsistent with the attitude that Timothy appears to have displayed throughout the proceeding to the issue of expenditure by his brother.)
  3. As adverted to above, there were in evidence some handwritten notes made by Fiona (contained in the blue book – Exhibit 12) headed “Meeting Thurs 16th May 2013”, recording as present Timothy, Bernard, Fred, Pamela and Fiona but also referring to a presentation by Mr Lee. The notes (on which there is some scribble in a different colour pen) include that:

Bernard spoke of Renovations required at Caernarvon house. Des advised to keep records of amounts spent so that amounts will be recorded & owed to B & F & increased in CPI’s.

  1. Bernard and Fiona emphasise that both their affidavit evidence and the notes record a conversation in which there was a discussion about the renovations, the money to be spent, and the amounts being recorded and owed to Bernard and Fiona. Bernard and Fiona note that, in response to that affidavit evidence, Timothy did not traverse the relevant paragraphs of Bernard’s affidavit (at [149]-[151] of his second affidavit sworn 17 May 2021) and, while specifically dealing with two other aspects of what was said, did not contradict Fiona’s account of what was said in relation to the recognition of their expenditure. Similarly, it is said that, while Timothy dealt specifically with inaccuracies in Fiona’s notes, he did not suggest they were inaccurate insofar as they recorded conversations at this or the earlier meeting.
  2. It is noted by Bernard and Fiona that, in his first affidavit, Mr Lee gave a lengthy account of what took place when he visited Orange on 16 May 2013 and the order in which he conducted the meetings on that day (as summarised above) but deposed to only one conversation that occurred on that day; whereas he gave a detailed account of a conversation on 26 March 2014 concerning proposed renovations to the house at Canobolas and the way in which Bernard and Fiona might be reimbursed for moneys expended (see below) (at [51] of Mr Lee’s first affidavit sworn 19 April 2021).
  3. In Mr Lee’s second affidavit sworn 17 May 2021, his response to [150] of Bernard’s affidavit is that he did not say the words attributed to him by Bernard nor did he hear Timothy say that “Yeah, I’m okay with that” (and Mr Lee affirms that his memory of that conversation is as set out at [51]-[53] of his 19 April 2021 affidavit). As to [92] of Fiona’s first affidavit, Mr Lee deposes that he does not recall this conversation occurring during the lunch at Fred and Pamela’s house on 16 May 2013 “or at any other occasion. Bernard and Fiona say that there is an obvious similarity between that conversation and the one recounted at [51] of Mr Lee’s first affidavit – both accounts refer to Mr Lee’s suggestion that the renovation costs be recorded as a loan in the company records and that CPI adjustments be made; however, it is noted that only Mr Lee deposes that he said items were to be approved by Timothy and Bernard.
  4. Further, Mr Lee cavils with the statement by Fiona at [93] of her first affidavit that an agreement had been reached. Mr Lee asserts that he did not hear words of agreement or that there was an agreement; rather, he deposes that there were options discussed (but his recollection is that this was at the 2014 meeting rather than at the 2013 meeting).
  5. In oral submissions, it is said for Bernard and Fiona that, at the 16 May 2013 meeting, the Company (by representations and statements by Timothy and Mr Lee) “bound itself to treat amounts which Bernard and Fiona were to spend on renovations for the Company’s house as loans in the books of the company to carry interest” (see T 6). Insofar as Bernard and Fiona rely on statements by Mr Lee, there is nothing on the evidence to support a conclusion that Mr Lee had any authority to bind the Company; at most, his statements would be relevant to the extent (which is debatable) that it could be said that Timothy (by silence or otherwise) had adopted them.

Credit issues specific to the two meetings

  1. As to the two relevant meetings (the 14 September 2012 meeting and the 16 May 2013 meeting), on the question of credit Bernard and Fiona point to the following matters.
  2. First, that in their affidavit evidence both Mr Lee and Timothy sought to convey the impression that the yearly meetings were conducted with a formality that elevated the significance of the absence of entries in the minutes and financial records recording what took place at the meeting of May 2013; yet Mr Lee conceded that there was no separate meeting of the shareholders of the Company and that neither Timothy nor Bernard had ever raised for attention the fact that some of the documents which they had executed indicated the wrong directors and the wrong shareholders nor had they ever asked him to add further resolutions to the Company’s draft minutes.
  3. Second, that Timothy was quite frank about his lack of specific recollection in relation to the meetings; nevertheless, it is said that he sought to minimise the length of the meetings and that he denied some very obvious propositions about them (including that the bulk of the time spent in the meetings concerned the operations of Bonny Glen Fruits and that Fiona attended that meeting). It is noted that Timothy insisted that he reviewed the minutes that he signed to ensure the details were correct, when it is said that they were replete with errors that would have been obvious on any such review (see, for example, minutes of the meeting of directors of the Company on 10 December 2012, which record the four family member as directors when Pamela and Fred had ceased by then to be directors; and of the shareholders meeting of 31 December 2012 which display a similar problem).
  4. Third, that Mr Lee gave generalised evidence about how the meetings were conducted (which Bernard and Fiona say no doubt reflected the many similar meetings that he had conducted with the family). It is submitted that it should be inferred that the meeting of 16 May 2013 followed the pattern which Mr Lee described in general terms in cross examination. However, Bernard and Fiona say that when it came to specific matters Mr Lee’s recollection was less impressive, noting that Mr Lee recalled only one short conversation about renovations at the meeting of 16 May 2013 with the aid of his affidavit. It is submitted that that recollection is to be considered in the light of Mr Lee’s complete lack of recollection when cross examined in relation to the conversations regarding the renovations that he had detailed at [51] of his first affidavit and the recollections set out at [6], [7], [8] and [12] of his second affidavit sworn 17 May 2021. Indeed, it is noted that Mr Lee could not remember what he had said of those matters in his affidavit sworn only three months before the hearing.
  5. Fourth, that in cross examination Bernard confirmed the existence of a verbal agreement whereby the company would repay the amounts expended for renovations or improvements on the property; readily made concessions; and confirmed that his wife took notes. Bernard and Fiona say that the accounts of the two meetings given by Bernard and Fiona are supported by contemporaneous notes made by Fiona. Insofar as it was put to Fiona that the relevant note was made after the event in an attempt to reconstruct, it is noted that Fiona rejected that suggestion. Bernard and Fiona say that the facts do not support that serious contention, referring to the objective evidence which showed that Fiona attempted over a number of years to ensure that notes were taken at meetings when the business of Bonny Glen Fruits was discussed (pointing to her blue book which contains notes of meetings on 14 September 2012; 1 October 2012; 16 May 2013; 26 March 2014; and 1 December 2015) and that there is contemporaneous evidence that Fiona asked Ms Leanne Pearce (who worked for Bonny Glen Fruits) to assist in keeping the minutes of the meetings (pointing to the copies of Leanne Pearce’s notes of meetings on 22 October 2015 and 5 June 2016).
  6. Pausing here, I do not accept that a conclusion that the notes were not all made during the actual meeting would necessarily connote some dishonest reconstruction of events. It is more plausible to my mind that the notes are an amalgam of jottings made at around the time of the meeting (potentially, some made before, some during and some after the meeting) rather than being wholly a verbatim note or summary of what was said that was taken during the meeting itself.
  7. Finally, in this context it is said (and I would accept) that the “patchwork” nature of these records speaks to their authenticity. It is said that the probabilities are that, if Fiona had intended to concoct a record reflecting consistent contemporaneous note taking and relevant notes, she would have collected all that material in the one place and using the one style (and most likely would have also protected this most valuable record from her young daughter’s scribblings).
  8. Therefore, I accept that the notes are genuine though not necessarily completely contemporaneous, and, moreover, they may record Fiona’s understanding as opposed to what was in fact said.

Arrangements for renovation works

  1. Bernard and Fiona say that, after the 16 May 2013 meeting, preparatory work for the renovations to the Homestead commenced (later in 2013). Bernard and Fiona arranged to have sketches made prior to drawing up plans (which they place as occurring about six months before they began the renovations – see [107] of Fiona’s first affidavit); paid to have plans drawn up (by McKinnon Designs – the plans being drawn from sketches taken on about 28 February 2014 – see [108] of Fiona’s first affidavit); sought out John Nunn Building Contractors Pty Ltd (John Nunn Building Contractors) and obtained a quote for the major part of the building works (which they place at approximately 26 March 2014 – see Fiona’s first affidavit at [114]); and they signed a contract for the major building works (on 22 May 2014), the contract noting drawings from McKinnon dated October 2013 (see contract provision regarding the drawings; and Fiona’s first affidavit at [115]).
  2. Bernard and Fiona also make reference to contemporaneous documents (see below) which it is said show that, shortly before signing the building contract, Fiona had communicated with Mr Michael Thornhill (a financial consultant who undertook some financial consulting work for Caernarvon Cherry at the time) as to clarification being sought that “personal funds you [Fiona] and Bernard/Caernarvon Cherry Pty Ltd [Bernard and Fiona’s company] have available will be used to pay for the house renovations, and there will be an adjustment done to square things up with Tim”. (To my mind it is significant that this leaves open how the adjustment was to be effected.)

Meeting on 26 March 2014

  1. Mr Lee has deposed (see from [47] of his first affidavit) to a meeting at the Bonny Glen Fruits Pty Ltd administration office in Orange on 26 March 2014 to discuss the financial statements for the Group and the signing of the Group financial statements and taxation returns for 30 June 2013. Mr Lee deposes to a conversation on that occasion in which he says Fiona raised the question as to “how would [they] be reimbursed” if they did some renovations to the house at Canobolas; that Timothy suggested looking at houses for sale nearby and subdivision as an alternative; and that:

Tim said:   Perhaps one way if you were going to do any renovations to the house at Canobolas was to get a valuation of the house before and after the renovations. This way would work out what increase in the value was gained by such renovations rather than what you had spent.

[Des] said:   Another way to record down what items you spent and from those items be approved by Tim and Bernard and recorded in the company financial records as a loan to you both (being the company financial records as a loan to you both (being Bernard and Fiona). Those costs could be adjusted by CPI and an adjustment made for each year of the increase in value as you could over capitalise the property and such costs not recovered in valuation method [sic]

  1. Pausing here, it seems to me more likely (having regard to the chronology of events) that this conversation occurred in the course of the May 2013 meeting rather than the March 2014 meeting because steps had already been taken by March 2014 at least for the obtaining of plans for the proposed renovation.
  2. Again, there are handwritten notes made by Fiona contained in the blue book of this meeting, recording the meeting with Mr Lee at Caernarvon Cottage and the presence of Timothy, Fiona and Bernard. Those notes do not record any of the above discussion to which Mr Lee deposed. There is then a lengthy gap in time before any further minutes or notes in the book – those recommencing with a typed set of minutes of a meeting on 1 December 2015 attended by Timothy, Bernard, Fiona and “LP” (which I infer to be Leanne Pearce).

Valuation by Andrew Saunders – April 2014

  1. Mr Saunders inspected and valued the Homestead (i.e., not the Caernarvon Property as a whole) on 29 April 2014 (the “before” valuation) at $770,000 (being land valued at $385,000 – for a site area of 2ha; and improvements at $385,000). Mr Saunders assessed the rental value unfurnished at $475 per week.

Communications with Mr Lee – April/May 2014

  1. I have referred above to the communications with Mr Thornhill.
  2. On 30 April 2014 (in response to a request made on 30 April 2014 by Mr Lee for Fiona to send an MYOB accounting file for Bernard and Fiona’s business entities), Fiona sent an email to Mr Lee stating “will do, we will have done by end of next week” but went on to ask Mr Lee to read a message received from Mr Thornhill and to confirm her explanation to Mr Thornhill (as to the funding of the house renovations) as well as to address the last paragraph of the message. The message from Mr Thornhill read:

Hi Fi

As discussed, I understand that personal funds you and Bern/Caernarvon Cherry Pty Ltd have available will be used to pay for the house renovations, and there will be an adjustment done to square things up with Tim based on the pre- and post- valuer of the house as it is owned by one of the Company’s that is 50% owned by Tim.

The other point that may be worth checking with Des is that the way you will be paying for the house renovations will be the most tax effective for the Company and yourselves individually. I suggest checking with Des to confirm that there are no other strategies he would suggest to assist with tax minimisation now and in the future.

  1. On 5 May 2014 (before the contract with John Nunn Building Contractors was signed), Mr Lee responded to Fiona’s 30 April 2014 email, saying:

It is my understanding at our meeting in Orange that Tim suggested pre and post valuation.

I suggested what ever [sic] you spent plus CPI would be adjusted and to resolve the issue I suggested the higher of the two.

The reason I explained you could over capitalise the property and such costs not recovered in the valuation.

With the current update to end of April figures you are sending I can work out the overall tax planning.

To assist please also provide estimate of renovations costs and timetable and what type of renovations.

  1. Bernard and Fiona say that it is common ground that the subject of the payment for the renovations was raised by Bernard and Fiona, and that Mr Lee had recorded resolution of the issue; and they point to these as matters going to the unlikelihood that they proceeded with the funding of the renovations without any agreement having been reached on that issue. The difficulty I have with that proposition is that there is not clear evidence of an agreement emerging from the above affidavit evidence, even on Bernard and Fiona’s account of the conversations. Rather, what is clearly apparent is that Bernard and Fiona wanted there to be recognition in some fashion of their expenditure (and most likely that this would be by some sort of adjustment or squaring up between the brothers in the future).
  2. For Timothy, it is said that for there to be acceptance of the position in relation to reimbursement of or recognition for the cost of the renovations, there has to have been knowledge of the costs of the renovations and the types of renovation (and it is noted that Mr Lee wanted an estimate of these to be provided).
  3. The above chronology of events shows that there were discussions about the proposed valuation of the property before and after the proposed works; and that it is made quite clear that no agreement was reached between the parties; rather, Mr Lee writes in the abovementioned email that his understanding was that Timothy and he both provided suggestions as to how the renovations could be reimbursed, and requested further details of the costs of the renovations and the type of renovations.
  4. On 13 May 2014, Fiona responded to Mr Lee, attaching the updated MYOB accounting file he had requested, in which email she said:

hi des

I have just emailed you the backup of MYOB for April 30. We have done as suggested and had the house (and house only) valued before any renovations commence. I will pass this on once received.

The renovations will commence next week however I don’t envisage a lot of money being spent before the end of the financial year. There have been costs to council, draftsman, engineering, design etc so far, however my prediction that another 70k would be spent before end of fy at the most.

The total renovation is going to be an estimated [sic] at $400-450k, will give you some more details when the fixed quote comes in from the builder tomorrow.

  1. Mr Lee has deposed (at [61] of his first affidavit) that he did not receive any further information regarding the renovations beyond the above communication; and that he did not think about forwarding a copy of this to Timothy because the email chain was part of the records between Caernarvon Cherry Pty Ltd and his firm; and Timothy had never been a director or shareholder of that company. There is no evidence that Timothy was made aware of this estimated cost.

Arrangements for building works

  1. The development application dated 15 April 2014 described the development as extensions and alterations to the cottage at an estimated cost of $350,000. The development application recorded the owner’s consent (of Bonny Glen Fruits) bearing the signatures of both Fiona and Bernard – Fiona signed as director (the title “director” being in her own handwriting). It appears that Fiona also signed the building contract as owner.
  2. The renovation works began in 2014 (a construction certificate being approved on 5 June 2014) and concluded in 2015. A final occupation certificate was issued on 13 March 2015. The cost of the renovation works was funded by Bernard and Fiona (in an amount, they contend, of over $1 million). The renovation costs were not at any time recorded in the accounts of the Company.
  3. The quote for the building works, dated 26 March 2014 was for $378,750 inclusive of GST. The signed contract was for a contract price of $353,500 inclusive of GST, “subject to adjustment as per contract conditions”. (As I understand it, the reduction in the price is related to the removal of joinery items and the allowance made for heating and a new floor from the contract – see T 374.39-50.) The contract provided for a deposit of $17,675 and a series of payments to be made when specified stages of the works were 95% completed. The contract provided for a number of “Prime Cost Items” (see cl 15 and item 11 of Schedule 2) which were specified as allowances and not guaranteed or lump sum amounts and where the contract contemplated that the amount expended might exceed the amount specified or conversely that part of such amounts might not be expended (containing provision as to how such amounts were to be treated). So, for example, item 11 of Schedule 2 specified the amount of $22,500 for “heating & new floor” (which items it is said were ultimately removed from the contract price).
  4. The largest claimed renovation expense comprises payments made to Mr Nunn’s company. At [44] of Fiona and Bernard’s written submissions, Fiona and Bernard claim that payments totalling $487,675.65 were made to Mr Nunn’s company, comprising the deposit, progress payments and other various payments pursuant to the contract of 26 March 2014. In that regard, at [122] of Fiona’s first affidavit, Fiona deposes that John Nunn issued seven variations and instructions sheets, totalling $37,029.96. (Timothy calculated that these variations, when added to the purchase price of the contract, totalled $390,029.96 – see [66] of Timothy’s submissions.) These variations were described as follows:

(a)   Variation and Instruction sheet number 5 dated 5 August 2014 for $18,441.72 for additional quotation for remove entire roof/blanket.

(b)   Variation and Instruction sheet number 7 dated 5 August 2014 for $1,496.00 for building/waterproofing and tiling 2 wall niches for each bathroom.

(c)   Variation and Instruction sheet number 8 dated 5 August 2014 for $352.00 for installation of in wall cistern to ensuite.

(d)   Variation and Instruction sheet number 10 dated 5 December 2014 for $8,129.44 for extra cost on tile to wet areas.

(e)   Variation and Instruction sheet number 11 dated 5 December 2014 for $1,067.00 for strip drain to wet areas as Reece prime cost amount has been taken off contract.

(f)   Variation and Instruction sheet number 12 dated 5 December 2014 for $94.60.

(g)   Variation and Instruction sheet number 15 for $7,449.20 for carpet cost not quoted in building works originally.

  1. Fiona further deposes (at [123] of her first affidavit) that a number of variations were not recorded in written form and were paid in cash during the course of the renovations. At [126]-[128] of Fiona’s first affidavit, Fiona deposes to payments made to John Nunn totalling $226,758.16, being for less than 50% of the amount claimed for this particular contractor. In particular, Fiona deposes that the following payments were made: on 29 May 2014 – $17,675 (Invoice No. 1207); 14 July 2014 – $44,000 (Invoice No. 1220); 3 September 2014 – $33,000 (Invoice No. 1245); 17 September 2014 – $66,000 (Invoice No. 1242); 17 November 2014 – $44,000 (Invoice No. 1265); 1 February 2016 – $11,083.16 (Invoice No. 1331); 30 October 2016 – $2,000 (Invoice No. 1331); 9 September 2016 – $5,000 (Invoice No. 1331); and 26 November 2016 – $4,000 (Invoice No. 1331).
  2. Pausing here, I note that some payments seem to have been made before the invoice was issued by Mr Nunn’s company. For example, payment for invoice no. 1245 is purported to have been made on 3 September 2014; however, the invoice was issued by Mr Nunn’s company after that date, on 15 October 2014. I also note that Fiona deposed (at [128] of her affidavit) that Invoice No. 1265 was paid and provided proof of payment. However, Fiona deposed (at [129] of her affidavit) that there was no record to support payment of Invoice No. 1265. These issues were the subject of cross-examination and are discussed below.
  3. At [124]-[129] of Fiona’s first affidavit, Fiona deposes that there are no records for $268,276.20 worth of claimed payments to John Nunn. Nonetheless, Fiona deposes that she believes she has paid these claims (see at [125], [130]-[131]). These payments are as follows: 1 October 2014 – $13,788 (Invoice No. B13217); 5 October 2014 – $22,000 (Invoice No. 1244); 7 October 2014 – $970 (Invoice No. C17410); 4 November 2014 – $26,513.02 (Invoice No. 1254); 4 November 2014 – $46,963 (Invoice No. 1254); 11 November 2014 – $316.80 (Invoice No. C17548); 5 December 2014 – $44,000 (Invoice No. 1265); 11 December 2014 – $22,000 (Invoice No. 1270); 5 February 2015 – $16,825 (Invoice No. 1284); 12 March 2015 – $8,998.04 (Invoice No. 1296); 5 May 2015 – $35,576.58 (Invoice No. 1331); and 8 October 2015 – $30,325.76 (Invoice No. 1378).

Valuation as at 11 June 2015

  1. Mr Saunders valued the Homestead again on 11 June 2015 at $1,300,000 (the land value at $455,000 and improvements at $845 per metre), with an unfurnished rental value assessed at $600 per week.

October 2015

  1. By email sent on 8 October 2015, Fiona forwarded to Mr Lee copies of two valuations, saying that “both valuations have been done, please find attached. can we make sure we discuss and minute at the meeting”.

Minutes of meeting Bonny Glen Fruits – 22 October 2015

  1. There is in evidence a typed note that appears to be the minutes of a meeting on 22 October 2014 of Bonny Glen Fruits, recording the attendance of Mr Lee, Fiona and Timothy (though Bernard is also recorded as having contributed to the discussion at the meeting). It is not clear who prepared the minutes but they appear to have Fiona’s handwriting on at least some of the items.
  2. The minutes include the following item (against which it appears that Fiona recorded the word “Des”):

Caernarvon House

–   Valuations of the house have been done before renovation and after. Des to contact the valuers to get true valuations. The difference between the valuations to be recorded as the expense was incurred by B&F hall personally

  1. Fiona’s evidence was that in 2015 Timothy was shown or sent the set of before and after valuations provided by Mr Saunders (T 103) and Fiona accepted that Timothy had said words to the effect that the valuations looked a bit overstated (although Fiona thought this was a reference to some extra outhouses that were in the post renovation valuation). Fiona seemed to accept that she had told Timothy she would have a more detailed look at the valuation but then left it to Mr Lee to get back to them about further information from the valuers (see T 104). Fiona gave evidence that she and Bernard would follow up with Mr Lee as far as wanting to put this on the company books (see T 104-105) but there appears to be nothing in writing as to this. I note that, as to the blue book, Fiona’s evidence is that words “Follow Des up 400,00” are definitely in Bernard’s writing (which Fiona assumed to be a reference to the need to follow up a facility for hail netting (T 112)).

Minutes of meeting 1 December 2015

  1. The typed minutes of meeting bearing this date, to which I have referred above, include the item “Des needs to supply valuations for CCC house, Tax returns and minutes. Letter stating what is required for books to be consolidated”.
  2. A subsequent email exchange between Fiona and Leanne Pearce indicates that both had a role in preparing minutes of meetings at least by June 2016 and that this involved communication with Mr Lee. The minutes headed Committee Meeting 3 June 2016 record the following item:

4.1   Caernarvon house improvements – Des was getting clarification from the valuers – Des forgot to do this – Des will follow this up to have a resolution by next meeting.

Discussions in relation to separation of assets

  1. By 2017, the brothers were involved in discussions as to the unwinding of the joint family enterprise. Timothy says that, by then, the relationship between the brothers had deteriorated (this does not appear to be disputed by Bernard and Fiona, albeit that, as noted already, they cavil with the proposition that the relationship had deteriorated as early as 2013). Bernard himself says that in 2017 his relationship was deteriorating (see at [171] of his first affidavit).
  2. In 2017, Bernard, Fiona and Timothy jointly engaged Mr Thornhill to “assist with their goal of separating each family from the respective jointly owned assets” (see Mr Thornhill’s email of 7 April 2017 to Mr Lee, copied to the brothers; and see Bernard’s first affidavit at [172]-[173]). Bernard deposes that there were a number of meetings at the Caernarvon cottage attended by Mr Thornhill, Timothy and Bernard, at which there was discussion as to the properties and assets.
  3. There was an initial meeting with Mr Thornhill on 23 March 2017 at which Bernard says that there was discussion as to the renovations and as to the valuations obtained, following which Mr Thornhill sent an email on 24 March 2017, attaching a summary of the jointly held assets and relevant details from the meeting for the brothers’ review. The list attached summarised the proposal for various assets; including that 100% of the “business” of Bonny Glen Fruits Pty Ltd would be “to Tim” but that the company might be wound up and Timothy to operate out of one of the existing companies or in a new entity; and for the assets of Caernarvon Pty Ltd (by their description this must be a reference to the Company) to be transferred to Bernard and Fiona.
  4. Mr Thornhill forwarded this schedule to Mr Lee by email on 7 April 2017, noting that the preferred date for the separation to be in place was 1 July 2017. Mr Lee responded by email on 13 April 2017 advising as to the steps to be followed to ascertain how a separation could be structured. Those steps included calculation of “[t]he amount owed by one party to the other on adjustment of such separation” and capital gains tax cost. There was no express reference in those emails to any reimbursement for expenses incurred in renovations of the Homestead, or any other properties. However, in evidence were undated handwritten notes apparently produced on subpoena by Mr Thornhill of a meeting with Bernard, Fiona and Timothy noting a timeframe of 1 July 2017, in which there is reference to “market value before & after reno of Caernarvon hose [sic] done. Can’t subdivide”; and that “Melrose’ includes Tim house” and the note “tim has put money into house”. The note recorded that “all agree that will value properties based on land & income producing value”.
  5. By 18 May 2017, the proposal in relation to jointly held assets had changed such that the business of Bonny Glen Fruits Pty Ltd was now to be to Bernard and Fiona (but with the same comments as to the possibility that the company might be wound up and that Bernard and Fiona might operate out of one of the existing companies or in a new entity).
  6. By 22 May 2017, it appears that there was dissension between the respective family members (see Fiona’s email to Mr Thornhill on that date referring to a meeting the previous Friday (18 May 2017) which Fiona described as “brutal and complete change around to where Tim wanted to be at the first meeting we had”). Fiona’s email to Mr Thornhill included the statement that “[s]o we are been [sic] forced to sell our much loved property. If it doesnt [sic] sell we are forced to buy out Tim which Bernard does not want to do!” (this presumably referring to a sale of the Canobolas Property including the Homestead). Mr Thornhill’s response was that he agreed that the meeting on Friday was “a total change in direction”.
  7. By August 2017, Mr Thornhill was conveying to the brothers his understanding that any plans to move forward with the separation of jointly owned assets had stalled and that one of the main “sticking points” was the actual and intended ownership of “Caernarvon Pty Ltd” (the owner of the Caernarvon Property) and Melrose Park (there having been communications via Fred and Pamela to the effect that their intention had been that Timothy have only 25% of Canobolas and Bernard only 25% of Melrose Park, contrary to the ASIC documents).
  8. A meeting took place on 4 December 2017 attended by Timothy, Bernard and Mr Thornhill, the minutes of which were prepared by Mr Thornhill. The meeting minutes included the following:

5.   Residential properties on ‘Melrose’ and ‘Caernarvon’

–    TH & BH agreed that there have been improvements to the residential properties on these 2 properties over time and that there may have been costs incurred by TH & BH on each of these respective properties from their own funds, and that such contribution needs to be taken into account when calculating the net asset ownership by TH & BH as part of the asset separation.

–   The residential property on ‘Melrose’ is the residence of TH, and on ‘Caernarvon’ is the residence of BH

–   Agreed that MT will obtain financial reports for the entities owning these properties from DL (and associated entities) to review the amounts reported in these financial reports/ balance sheet, and provide a summary to TH & BH of this financial information for further discussion as to the next steps to take to agree on the contribution made respectively by TH & BH to these properties.

  1. There is no reference in these meeting minutes to any existing loan agreement in relation to expenditure on renovations on the Homestead property (rather what seemed there to be recorded was that the brothers agreed at the meeting that there “may have been” costs incurred by each of them on the properties out of their own funds and that such contribution needed (in some fashion) to be taken into account when calculating the net asset ownership of the brothers as part of the asset separation).
  2. Fiona’s response to the minutes included (see email of 5 December 2017) that she and Bernard had done the right thing and had their house valued both before and after the renovations (and to assert that “[t]his was all agreed to by Tim and Des”).
  3. Bernard says that, what occurred in 2017 was that he and Timothy came to an in principle agreement that each would own his respective orchard (i.e., Canobolas and Nashdale) and that they went through a summary of assets and agreed how they would be split but that two weeks later Mr Lee advised him that Timothy did not want to split the business because he was “too sick” to take it on anymore ([183] of Bernard’s first affidavit). Bernard relies on this evidence to dispel any suggestion of recent invention.
  4. On 4 December 2017, Mr Thornhill recorded a meeting where the two brothers agreed that costs incurred by the others on their respective properties had to be taken into account as part of the separation (i.e., to value the assets and that there be a cash payment to “even up” the division) (see T 10). However, it seems that there was then a disagreement as to this.
  5. Bernard has deposed to a conversation with Timothy in around 2018 where he says that Timothy recounted their father’s opinion that the Company should be put into voluntary liquidation and the liquidators should sort out the whole thing so that “everyone gets repaid what they’re owed”; and says he agreed with this (see at [185] of Bernard’s first affidavit).

Appointment of voluntary liquidators

  1. In late 2018, Bernard and Timothy agreed to appoint Mr Cameron Gray and Mr Anthony Elkerton (together, the fourth respondent) as trustees for sale to realise the various properties and as provisional liquidators to realise the assets that were held by the corporate entities they controlled. Orders were made by consent to that effect on 27 November 2018 (the winding up of the companies being put on the just and equitable ground).
  2. Prior to the appointment of the provisional liquidators, by letter dated on 21 November 2018, solicitors acting for Bernard and Fiona (Matthews Folbigg) wrote to Timothy’s then lawyers advising that their clients’ agreement to the proposed short minutes as to the distribution of proceeds from the sale of the Caernarvon Property pending further order of the court was “not intended to dispose of” their clients’ claim that they are “entitled to an equitable claim and an adjustment against the proceeds of sale of the Caernarvon Property, in accordance with the improvements they have made to the property”. The letter stated the understanding that Bernard and Fiona had paid in excess of $600,000 from their personal funds to make improvements to the Homestead and that:

We are instructed that Tim was aware that our client’s [sic] would be undertaking this work and that any amounts spent by Fiona and Bernard on the renovations, would be recorded as an amount owed to them in the books and records of the company, however, this did not occur.

  1. On 12 December 2018, a report was completed by Bernard on the company activities; Bernard identified his claim and provided a copy of the (said to be contemporaneous) notes taken by Fiona of this relevant meeting, and the “before” and “after” valuations by Mr Saunders (who gave evidence in the proceeding).

Sale of properties

  1. The Canobolas and Nashdale Properties were sold at public auction held by the liquidators on 24 July 2019. Fiona, and an entity associated with Bernard and Fiona, together acquired the Canobolas Property. Completion of the sale was, however, delayed on at least two occasions due apparently to funding difficulties (see below).
  2. On 21 November 2019, Bernard’s solicitor wrote to the liquidators proposing that they grant partial vendor finance to the purchasers of the Company’s land, and other land held by the liquidators under an appointment as trustees for sale, in each case under existing contracts of sale dated 24 July 2019 to Fiona and a company associated with Bernard and Fiona. The letter proposed that Bernard’s dividend in the winding up of the Company be charged as security for the purchasers’ obligations.
  3. The letter of 21 November 2019 referred to discussions between the purchasers’ solicitors and the liquidators “last week” and to the need to have the “figure” of an amount to be set off under earlier orders of the Court under s 81 of the Trustee Act 1925 (NSW) (Trustee Act) in respect of the land held under the appointment as trustees for sale. Those orders had been directed to facilitating a completion of the contracts on 14 November 2019. Timothy notes that, despite the set-off permitted by those Orders in respect of the land held by the vendors under the appointment for sale as trustees, the purchasers had failed to complete; and that the letter of 21 November 2019 was there making a similar proposal in respect of Bernard’s expectation of a dividend in the winding up of the Company.
  4. The 21 November 2019 letter advised that it was at least desirable, if not necessary, for Bernard and Fiona to know how much they would need to raise from other lenders to pay the portion of the price not financed by the vendors (hence the need to ascertain an expected dividend).
  5. Timothy notes that the letter of 21 November 2019 made no reference to the proof of debt (see below) which was subsequently lodged a few days later.

Proof of debt

  1. On 26 November 2019, as adverted to above, Bernard and Fiona lodged a proof of debt in the liquidation of the Company, claiming as a debt the sum of $800,000 in respect of funds they claimed were expended to enlarge and renovate the Homestead between 2013 and 2015.
  2. The proof of debt claimed that the debt was owed by the Company pursuant to a Loan Agreement between Bernard and Fiona and the Company “for amounts advanced in relation to Caernarvon homestead improvements”. The proof of debt attached “minutes of meeting dated 16.05.2013” (being Fiona’s handwritten note – as set out earlier) and a “schedule of invoices and evidence regarding payments”. The covering letter from Bernard and Fiona’s accountant stated that the amount actually paid was $1,050,797.58 but that Bernard and Fiona were prepared to agree only to lodge a proof of debt for $800,000 in order to allow the liquidator “to have certainty regarding the amount which … Bernard may be entitled to receive as a shareholder of the company”.

Vendor Finance

  1. On 29 November 2019, Timothy’s solicitor received an email from the liquidators’ solicitor informing him that there was a proposal for vendor finance that one of the liquidators wished to discuss with him.
  2. A meeting was then held on 4 December 2019, at which Timothy’s solicitor, Mr Cakic, was informed that the proposal would require approval from the Court pursuant to s 477(2B) of the Corporations ActOn the same day, Mr Cakic made a written request for additional information. Complaint is made that this was not provided.
  3. On 9 December 2019, the liquidators filed an Interlocutory Process seeking approval of the vendor finance proposal pursuant to s 477(2B) of the Corporations Act. Timothy notes that the supporting affidavit of one of the liquidators, Mr Gray (affirmed on 9 December 2019) referred to the $800,000 joint proof of debt by Bernard and Fiona but did not annexe or exhibit it, nor explain its claims.
  4. On 10 December 2019, Timothy (whose position was that he did not have enough information to make a decision with respect to the application) sought a guarantee from the liquidators that he would receive an equivalent amount of money from the liquidation as his brother (Bernard) would receive. Timothy neither consented to nor opposed the s 477(2B) application, which was heard and determined by Rees J on 11 December 2019.

Completion of sale

  1. The sales of the properties were completed on or about 13 December 2019. The vendor finance was for $1.1 million. Timothy notes that the liquidator’s affidavit on the s 477(2B) application stated that he expected that all creditors would be paid and the shareholders receive distributions each exceeding $1.1 million, and that there would be no undue delay. Thus, Timothy says that the position that was being presented to Rees J was that only the shareholder dividend was treated as a material factor relied on to support the viability of the then proposed agreement. It is noted that this was mentioned as a factor in Rees J’s judgment (see p 3), her Honour’s reasons not referring to the proof of debt claim.
  2. Timothy points to the fact that, a year after the first s 477(2B) Order, when the time permitted was about to expire (and by which time the proof of debt claim had not been determined by the liquidators), a further s 477(2B) application was made. Timothy notes that no detailed statement of the financial position of the borrowers and guarantors was presented but that Mr Gray deposed (in his affidavit of 2 December 2020, in the second paragraph numbered [18]) that “they [the purchasers] will not have sufficient funds without the payment of the POD amount and a shareholder dividend”. (Timothy relies on this to show that Bernard and Fiona thus have a strong financial motivation to pursue the proof of debt claim; and he says that their evidence of oral dealings many years ago must be assessed with appropriate caution in the light of that self-interest.)

Acceptance of proof of debt

  1. At the request of the liquidators, further supporting documents were supplied on 5 February 2020 and 12 June 2020. A statutory declaration was provided; and Timothy made submissions through his solicitors in relation to the proof of debt.
  2. The liquidators obtained written advice from a barrister as to whether the liquidators should approve the proof of debt (see Mr Gray’s affidavit affirmed 17 November 2020 at [61]). Counsel’s opinion was that the liquidators would be entitled to admit the proof of debt claim. Mr Gray deposed that, in light of this opinion and the fact that he was satisfied from his own investigations that Bernard and Fiona had spent the amounts claimed on renovations, he and Mr Elkerton decided that the proof of debt should be admitted (see [63] of Mr Gray’s 17 November 2020 affidavit).
  3. On 17 September 2020 the liquidators admitted the proof of debt.

Proceeding

  1. As adverted to above, by Interlocutory Process filed on 30 April 2020, Timothy appealed against the admission of the proof of debt lodged by Bernard and Fiona. Prior to the filing of the application, Timothy’s solicitors had written to the liquidators, contending that correspondence received on 7 April 2020 constituted a decision to admit the proof of debt. Subsequently, the liquidators disputed that they had made a final decision on the proof as at 7 April 2020 and the matter was stood over whilst the liquidators gave further consideration to the proof.
  2. On 2 November 2020, the Court noted that it was now common ground that the liquidators had determined the proof and ordered that the Interlocutory Process filed on 30 April 2020 should stand as Timothy’s appeal against that determination. At the liquidators’ request, leave was also granted to Timothy to amend his Interlocutory Process to add the liquidators together as fourth respondent.
  3. The amended interlocutory process was filed on 5 November 2020. The liquidators have not taken an active role in the hearing of the application; the relevant contradictors being Bernard and Fiona.
  4. On 30 November 2020, the Court directed Points of Claim and Defence to be filed by the active protagonists in the case (Timothy, on the one hand, and Bernard and Fiona, on the other). Pursuant to those directions, Points of Claim were filed by the respective parties on 16 December 2020 and Points of Defence, responding to the respective Points of Claim, were filed on 15 January 2021.
  5. Affidavit evidence has been filed pursuant to r 14.1(5) of the Supreme Court (Corporations) Rules 1999 (NSW) by the fourth respondent, being an affidavit affirmed on 17 November 2020 by Mr Gray, on which Bernard and Fiona rely. Timothy has also filed affidavit evidence: affidavits sworn by himself and Mr Lee (and valuation evidence from Mr David Bird and Mr Mark Ellis); as well as an affidavit from his solicitor (Mr Cakic). Bernard and Fiona have filed the following affidavits: affidavits sworn 19 April 2021 and 24 May 2021 by each of Bernard and Fiona and an affidavit sworn 19 April 2021 of Mr Andrew Saunders (the property valuer who carried out the “before” and “after” valuations of the Canobolas Property).

Deferred evidentiary ruling

  1. Before turning to the evidence of the lay and expert witnesses, I deal first with a deferred evidentiary ruling as to the admissibility of documents sought to be tendered by Bernard and Fiona during the course of the hearing, namely documents that had been produced on subpoena by John Nunn Building Contractors (the builder contracted for the renovation works on the Caernarvon Property which were the subject of the impugned proof of debt).
  2. Relevantly, Bernard and Fiona sought to tender (as business records) those parts of documents headed “Account Transactions John Nunn Building Contractors Pty Ltd for the period 1 July 2013 to 1 June 2014” (the 2014 Extracts), and “Account Transactions John Nunn Building Contractors Pty Ltd for the period 1 July 2014 to 30 June 2015” (the 2015 Extracts) and 1 July 2015 to 30 June 2016 (the 2016 Extracts) containing the representations marked in each of the extracts (the Representations) appearing within a folder entitled “Relevant Extracts from John Nunn Building Contractors Pty Ltd’s Ledgers for the Period 1 July 2013 to 30 June 2016” (the Extracts Folder). In that regard, Bernard and Fiona relied on an affidavit affirmed 22 July 2021 by their solicitor, Ms Ellen Wendy Ferris, and the documents annexed thereto.
  3. On the voir dire as to the admissibility of those documents, Bernard and Fiona also tendered various documents including the financial year 2015 and 2016 ledgers of account transactions of John Nunn Building Contractors and the building contract dated 22 May 2014 which they entered into with John Nunn Building Contractors (the Contract).
  4. The circumstances in which those documents were produced by John Nunn Building Contractors were addressed in the affidavit evidence of Ms Ferris but it is not necessary here to outline those circumstances as Timothy does not cavil with the proposition that the documents in question were produced in answer to a subpoena (issued at the request of Timothy on 25 May 2021) (see T 318.1); and, in the case of the documents for the 2014/2015 and 2015/2016 financial years, were not produced initially when the subpoena was answered but, after enquiry was made of the company’s solicitors, were produced only on the first day of the hearing. Nor does Timothy cavil with the legal principles summarised in submissions for Bernard and Fiona as to the test applicable when assessing the relevance of the documents to a matter in issue in the proceeding (see Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355 at [92](5) per Perram J (ACCC v Air New Zealand), approved in Federal Commissioner of Taxation v Cassaniti (2018) 266 FCR 385; [2018] FCAFC 212 at [64] per Steward J (his Honour then sitting in the Federal Court), and in Gregg v The Queen (2020) 355 FLR 348; [2020] NSWCCA 245 per Bathurst CJ at [362]).
  5. Rather, Timothy cavils with the proposition that the documents satisfy the requirements of s 69 of the Evidence Act for business records (and argues that, although documents of this kind would commonly satisfy the test of relevance, in circumstances where there is doubt as to when the relevant representations were inserted in the database the documents do not here meet the test of relevance).
  6. Bernard and Fiona seek to rely on certain of the previous representations recorded in the general ledger of John Nunn Building Contractors, invoking in this regard ss 69, 48, 57(1) and 58(1) of the Evidence Act, as evidence capable of rationally affecting the assessment of the probability that invoices were raised by John Nunn Building Contractors and that payments claimed by Bernard and Fiona were paid.
  7. In circumstances where the documents were produced in answer to a subpoena addressed to John Nunn Building Contractors by a solicitor acting for the company, it is said that it may readily be inferred that the documents were provided by John Nunn Building Contractors and that compliance with the subpoena was supervised by a solicitor. As to the documents themselves, Bernard and Fiona contend that, on their face, they are part of the business records of the company (pointing to the headings on those documents; that they are in the form of a general ledger printout from a computer based accounting system; and to their contents, which are said to be consistent with the entries on bank statements contained in the evidence of Fiona which record payments having been made to John Nunn Building Contractors). Thus it is submitted that the compelling inference is that the relevant ledgers are documents which have been produced by a device that has retrieved and collated data from the electronic database in which the general ledgers of the company are stored and form part of the records belonging to or kept by the company in the course of, or for the purposes of, that business.
  8. As noted, Timothy does not dispute that inferences could be drawn from the nature and form of the documents and the fact that they were produced in answer to a subpoena out of the custody of the company. However, it is submitted that the conditions specified in ss 69(1) and (3) of the Evidence Act are not here met on the balance of probabilities (i.e., that the ledgers in the form in which they are now sought to be tendered form part of the records kept by the organisation in the course of, or for the purposes of, a business or at any time formed part of that record; and that they contain the previous representation made or recorded in the document in the course of, or for the purposes of, the business).
  9. The force of Timothy’s submission in this regard arises out of the fact that there were in the evidence numerous editions of various of the invoices that were issued by John Nunn Building Contractors (so, for example, the invoices issued in respect of progress claim no. 7 dated 4 November 2014, of which there were three editions – at least one having no narrative description of the work performed). Insofar as there are various iterations of some of the tax invoices, it is submitted for Timothy that it cannot be concluded that each was contemporaneous or kept in the ordinary course of business (as opposed to being prepared at the request of Fiona for the purpose of the making of a claim under the proof of debt or in the period in which this proceeding was on foot).
  10. In that regard, without reference to metadata it was submitted that one could not infer from the fact that an entry appeared chronologically in the database that an invoice was rendered at the time recorded in the database since the entry might have been retrospectively recorded in the electronic database (see the argument at T 324-325).
  11. By way of further example, reference was made to the cross-examination of Fiona as to the invoice dated 15 October 2014 for progress claim no. 6 for which it was said that payment had been made some six weeks before the date of that invoice (on 3 September 2014). It was noted that there appeared to be different dates identified as dates on which the payment was made (20 October 2014 as opposed to 3 September 2014) (and see the cross-examination of Fiona at T 68-69ff in relation to the ninth email of the emails in Exhibit D as to the raising of invoices from Mr Nunn at the time that the proof of debt was lodged).
  12. Therefore, it is submitted for Timothy that there cannot be an affirmative state of satisfaction (on the balance of probabilities) that the ledgers in the form now sought to be tendered formed part of the contemporaneous records of Mr Nunn’s business and that they contained the Representations that were entered in the course of, or for the purposes of, that business (rather than the alternative hypothesis that they were prepared or revisited in the course of vouching the proof of debt or for the purpose of the present application).
  13. In response to this this submission, it was conceded by Counsel for Bernard and Fiona that the latter’s account of what had been spent and what the records showed was both confused and confusing but it was said that no claim was now made for items for which there is no explanation (see T 327-328). Rather, reliance was placed on a schedule that had been prepared (MFI 3), listing in relation to each of the progress claims, the invoice, the record in the ledger, and the bank statement which demonstrates a payment consistent with the entries in the ledger.
  14. So, for example, the answer to the recording in the ledger of a payment on 20 October 2014 in relation to an invoice of 15 October 2014 and a reference in the bank statement to a payment made on around 3 September 2014 was said to be that there were at least three payments of $44,000 (shown respectively as being invoice progress payment no. 2) (see T 327.42): a payment made on 14 July (for an invoice dated 10 July); a payment made on 17 November 2014 (for an invoice on 4 November 2014); and a payment made in respect of an invoice on 5 December 2014 (none of which, I might add, corresponds to the payment made on 20 October 2014, which prompted this exercise of matching payments to invoices).
  15. That said, Counsel for Bernard and Fiona maintained that the objective evidence was clear that invoices were rendered for the first nine progress payments which showed a consistent pattern of invoices being rendered and payments made for the same amount and in the order in which they were provided for in the contract; such that it was submitted that these were business records of Mr Nunn’s business (and admissible as such).
  16. It was submitted that the submissions for Timothy were tantamount to a suggestion that Mr Nunn was engaged in some sort of fraud with Fiona (i.e., that Mr Nunn was simply generating documents at Fiona’s request rather than attempting to supply her with material to assist in her proof of debt claim) and that there was no basis for such a conclusion.
  17. It was said that the invoices appearing without narratives were quite plainly machine generated invoices only recently created (consistently with Fiona’s evidence as to the changing of Mr Nunn’s computer system) and that this does not affect what was in the general ledger. It is submitted that it could not be concluded that Mr Nunn was engaged in falsifying his general ledger to coordinate with bank statements that were in Fiona’s evidence (reference being made in this context to the Briginshaw standard of proof of such serious allegations (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34)).
  18. Pausing here, I do not accept that rejection of the tender of the documents in question (on the basis that they do not meet the test for admission as business records) would of necessity involve the conclusion that Mr Nunn was engaged in a process of falsification of records (or some kind of fraud with Fiona) (which I accept is a serious allegation and would require a far greater level of satisfaction than that which I could form at this stage – and in any event would not be a conclusion I would draw without giving Mr Nunn an opportunity to be heard). Rather, consistently with the fact that one cannot accept or be comfortably persuaded of the evidence of a witness without concluding that the witness is lying or being deliberately dishonest, I consider that the doubts as to when the entries in the database were made (arising out of the proliferation of iterations of the invoices and the evidence referred to above of Fiona) simply means that I cannot be affirmatively satisfied on the balance of probabilities that the documents sought to be tendered were contemporaneous and prepared in the ordinary course of the business of the company (as opposed to documents – accepting for present purposes that there was a genuine basis for issuing them – that were or may have been issued retrospectively to record the basis on which invoices had earlier been rendered or payments made but which documentation for whatever reason was not readily available to the company issuing the invoice).
  19. I accept that the documents in question are of a kind that would ordinarily satisfy the test of admissibility being documents the receipt of which could rationally affect the assessment of the probability of a fact in issue (see ACCC v Air New Zealand at [92]). Further, I accept that the documents are of a kind that would ordinarily satisfy the requirements of s 69(1)(a) of the Evidence Act having regard to the form and context of the documents and the circumstances in which the documents were produced (see Capital Securities XV Pty Ltd (formerly known as Prime Capital Securities Pty Ltd) v Calleja [2018] NSWCA 26 at [89]-[90] per Leeming JA; and see Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2004] NSWSC 984 at [19] per McDougall J).
  20. However, in circumstances where I am left in doubt as to when the entries in the database were made (having regard to the different iterations of the invoices themselves), I do not consider that ss 69(1) and (3) of the Evidence Act are satisfied – and I therefore reject the tender of the documents in question. That said, ultimately nothing turns on this because the position taken by Counsel for Bernard and Fiona was that no claim was made for payments other than those objectively provable having regard to the documents referred to in the schedule which was marked as MFI 3 in the hearing and it was accepted that Fiona’s evidence in this regard was unreliable. Further, as I explain in due course, I am satisfied that the proof of debt should be rejected.

Lay evidence

  1. As to the lay evidence, each of the principal protagonists gave evidence and was cross-examined; as was Mr Lee. The substance of their evidence as to particular factual disputes is dealt with either in the chronology above or in the determination below of the issues in the proceeding.
  2. Bernard and Fiona accept that, insofar as they rely on what was said in the meetings of 14 September 2012 and 16 May 2013, the summary of the relevant principles and authorities given by Black J at [16]-[21] in In the matter of Hillsea Pty Limited [2019] NSWSC 1152 reflects the approach to be taken to the assessment of the affidavit and oral evidence (at least where they have traversed the particular evidence concerned). Insofar as there are significant aspects of the evidence given by Bernard and Fiona which Timothy and Mr Lee do not address, Bernard and Fiona submit that in relation to those matters inferences should not be drawn in favour of Timothy (citing Handley JA in Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418).
  3. Bernard and Fiona thus submit that primary emphasis should be placed on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence (referring to Effem Foods Pty Ltd v Lake Cumberline Pty Ltd (1999) 161 ALR 599; [1999] HCA 15 at [15] per Gleeson CJ, Gaudron, Kirby and Hayne JJ). (Further, it was accepted that Fiona’s evidence in relation to the invoices and payments was confused and confusing – see below.)
  4. At this stage, having dealt with the specific credit issues raised in relation to the two relevant meetings, what I propose briefly to address are the submissions made for Bernard and Fiona as to credit generally.

Timothy

  1. Bernard and Fiona submit that Timothy’s evidence reveals that he harbours a great deal of animosity towards his younger brother. In particular, reference is made to the following evidence in the course of Timothy’s cross-examination. First, that, when asked whether he had asked Bernard for permission to remove a wall at the house which Bernard jointly owned, Timothy first said he had asked Bonny Glen Pty Ltd, then said he could not remember and then said that he did not need to because he was not asking Bernard to pay for it. Second, that when it was put to Timothy that he did not have to pay for the two hectare block that was carved out of the land at Melrose, he gratuitously added “I didn’t have to. I’d already worked 10 years longer than my brother and he was getting free interest for his loan plus he didn’t pay for it till five years later”. Third, that when it was put to Timothy that Bernard was not paying any rent while living in Melrose Cottage, Timothy said that “most of the time he spent he was off sick” (which Bernard and Fiona say was a preposterous suggestion when Timothy agreed that Bernard had lived there for seven years).
  2. As to Timothy’s affidavit evidence, it is noted that Timothy denied that Bernard had either undertaken or paid for renovations to Melrose Cottage and produced photos in support of his contention; and, when confronted in cross examination with photographs showing prior renovations done by Bernard, he retreated from that position to insist that either Bonny Glen Pty Ltd or he had paid for those renovations.
  3. Bernard and Fiona place no little emphasis on the fact that Timothy denied knowledge of the renovations until well after they were done. It is submitted that the following evidence in that regard does not withstand scrutiny. First, that, at [51] of his first affidavit, Timothy said that he had not been told by either Bernard or Fiona about the work done and their claim to be paid (a statement that Bernard and Fiona say even when qualified by what appeared in the following paragraph, was untrue). It is noted that Timothy’s own affidavit annexed copies of minutes of the meeting with Mr Thornhill on 4 December 2017 (see above) which Timothy attended with Bernard but that Timothy nevertheless swore that “the topic of renovations of the Caernarvon Homestead was not brought up at the meeting”. Bernard and Fiona point out that the minutes themselves plainly record that the topic of renovations to the residential properties was raised and that costs incurred needed to be taken into account. Moreover, it is noted that in cross examination, Timothy agreed that both he and his brother had contended to that effect at the meeting.
  4. Reference is also made to the letter dated 21 November 2018 from the solicitors for Bernard and Fiona that was sent by email to two people at the firm then acting for Timothy (which set out the substance of the claim that is made in the proof of debt and made plain that the consent to the orders made by the Court six days later was not intended to dispose of that claim). It is noted that the letter was part of the exhibit to Fiona’s second affidavit sworn on 24 May 2021. Bernard and Fiona point to Timothy’s evidence in cross examination that he had not been able to find the letter and that he added that it was not marked “without prejudice” (which they maintain was a “self serving deflection”). It is submitted that the likelihood that a letter emailed to two different people within Timothy’s legal team was not received by either of them is remote; and that the proposition that the claim it foreshadowed was not brought to his attention is equally unlikely. It is said that, in cross-examination, Timothy immediately realised that the statement was not true and sought to qualify it.
  5. Reference is made to Timothy’s evidence in cross-examination: that the first time he became aware that Bernard and Fiona had carried out work at the Canobolas Property was when he was shown the valuations at a meeting on 22 October 2015; that, when shown the valuations, Timothy’s only response was to comment that it looked overstated and that there were “extra” buildings that were already there. In cross-examination, Timothy said that he thought that what was being valued was the heating of the house and the bathroom. It is said that even a cursory review of the second Saunders valuation demonstrates that this answer could not possibly have been true. It is noted that (other than a small mention) neither the heating nor the bathroom was mentioned and neither appeared in the photographs. Bernard and Fiona say that Timothy’s suggestion that he had not received all of the photos in the valuation (and that this was a matter he had only noticed when he received the Court Books) smacked of recent invention. It is noted that the copy Timothy was shown was at pages 290-298 of the exhibit to Fiona’s affidavit of 19 April 2021 to which Timothy had responded to in his second affidavit of 17 May 2021.
  6. Bernard and Fiona also note that in Timothy’s first affidavit he referred to attending a birthday party for his niece (or nephew) at which he observed the renovations (inferentially, they say, for the first time). It is noted that this was said to be about a month after being shown the valuations. In cross-examination Timothy adhered to the fact that the party was in late 2015 but later he said that it was dark and it was in winter time. Bernard and Fiona say that, if the party was in fact in winter (as both Bernard and Fiona suggest), then Timothy must have observed the renovations well before he says that he received the valuations (in October 2015) and that his evidence about first learning of the renovations when he saw the valuations was untruthful. Insofar as Timothy said, in cross examination, that when he saw the renovations at the party he did not feel it was time to start arguing with his brother about not being notified, Bernard and Fiona say that (given his professed state of ignorance about Bernard and Fiona’s desire to have the costs recognised) it is difficult to understand what might have angered him (and point out that Timothy did not raise this subject at any later time either).
  7. As to Timothy’s general contention that he had no cause in the ordinary course of the apple picking season (that is from early February to May) to go to the Canobolas Property, and that he did not do so, Bernard and Fiona say that this contention should be doubted for the following reasons. First, that in his first affidavit Timothy recounted a conversation that he had “in about 2012” when he “visited the Caernarvon Orchard” and saw an employee (Ms Charlene Thurston) packing cherries at a time when he said she was on the Bonny Glen Fruits payroll. Thus, Bernard and Fiona say that at least in 2012 Timothy still had cause to visit the Canobolas Property. Second, that the office of the Bonny Glen Fruits business which Timothy co-owned was at the Canobolas Property. It is said that the bookkeeping staff employed by the Business and who processed the payroll for all of the staff, whether they worked on the Canobolas or Nashdale Properties were located in the packing shed at the Canobolas Property. Third, that staff wages were transported from the Canobolas Property to Nashdale. Fourth, that the apples grown on the properties that he oversaw were transported for grading, packing, and despatch to the Canobolas Property. Fifth, that at [30] of her first affidavit Fiona deposed to an argument between Bernard and Timothy outside Caernarvon Cottage in 2016 after which she said the relationship between Bernard and Timothy became “toxic” (to which Timothy did not respond in his affidavit).
  8. Further, it is noted that, in his second affidavit, Bernard gave detailed evidence of the frequency of, and reasons for, Timothy’s visits to the “packhouse”; and said that on average Timothy came about once a week to bring over timesheets or with fruit from Nashdale; and that Fiona also deposed in her second affidavit to Timothy’s visits to the “packhouse” during harvest time and otherwise and to deliver picking tallies to the office. It is submitted that it is inherently unlikely that the co-owner of a substantial business (in which the entire bookkeeping and payroll processing as well as the grading, packing, and dispatch of product are occurring just down the road) would have no occasion to visit for periods of years (even more so if he really had formed the opinion that those in charge of the operations at the Canobolas Property, i.e., Bernard and Fiona, “were taking advantage of the Bonny Glen Fruits business to benefit their own Caernarvon Cherry business”).
  9. Bernard and Fiona submit that Timothy displayed a disingenuous insistence on his total ignorance of the renovations in an effort to advance his case.
  10. Broadly speaking, Timothy’s submissions as to credit of witnesses went largely to the unreliability of Fiona’s evidence (both as to the invoices received and payments made and as to the notes said to have been taken at the relevant meeting).
  11. As to the principal lay witnesses I make the following comments.
  12. First, as to Fiona, there is no doubt that her evidence was confusing in parts and it was conceded to be unreliable in relation to the invoicing and payment regime. However, I considered Fiona to be a genuine witness who did not suggest that she recalled precisely everything that occurred. Clearly, Fiona has a firm belief as to the arrangement being one in which there would be recognition of the expenditure she and Bernard had made; but it seems to me that this is just as likely based on her assumption as to what was said or agreed as opposed to something actually said by Timothy by way of agreement to the proposition that there be a recognition of the expenditure. No doubt, Fiona’s perception (as with all the family members) is coloured by her feeling as to the unfairness of the position that has been adopted by the other side (as emerged in her contemporaneous emails with, for example, Mr Thornhill during the course of the negotiations as to asset separation). As to Fiona’s evidence in relation to the blue book, I accept that these were relatively contemporaneous notes but I cannot be satisfied on the balance of probabilities that all of them were actually taken during the course of the meetings (as opposed to notes jotted down sometime shortly thereafter). This is because of matters such as the change in pen colour (and the reference to the printed pages in the season summary referred to as “enclosed”). Most relevantly, is the fact that no-one else appears to have seen the “blue book” (although there were witnesses who on occasion saw Fiona taking notes).
  13. As to Bernard, I accept that he did his best truthfully to recall events that had occurred but it is clear that he had little independent recollection of relevant conversations. There is little doubt that Bernard and Timothy are now estranged – no doubt due to family history and differences that it is not useful here to explore; and this seems to have been the case from at least 2016. This is likely to have influenced both brothers’ perspectives and recollections of events.
  14. As to Timothy, I accept that there was a level of emotion apparent in some of his evidence (such as the assertions made seemingly downplaying Bernard’s involvement in the family business); and, on one view of things, his attitude to the claim by Bernard and Fiona to reimbursement of moneys spent by them on the Homestead might be seen to be an opportunistic reliance on lack of a formal written agreement. Nevertheless, it is also understandable that someone in Timothy’s position would not readily agree to giving his brother a blank cheque in relation to renovations on company property. I considered that Timothy was candid in his acknowledgement in his affidavit as to the difficulty in his recollection of events and I did not consider that his evidence was disingenuous (as Bernard and Fiona contend).
  15. On balance therefore, I accept that the family members did their best to give honest evidence of their recollection of events and that we are here squarely in Watson v Foxman territory where caution must be exercised in accepting any of the oral accounts and primary weight should be placed on the contemporaneous documents (though bearing in mind the caution that those too might be influenced by the perspective from which they were written or created).
  16. As to Mr Lee, his recollection of events seems largely to have been based on the documentary record (see for example at T 301.49). It was clear that documents such as the company records were prepared from standard pro forma documents and dated accordingly (and there were obvious errors in those documents). Mr Lee’s recollection of the meeting at which reference to valuations was made must be mistaken and that this was a discussion that in fact occurred at the 16 May 2013 meeting. However, I attribute this simply to failure of recollection on his part. Overall, I accept his evidence as being the most independent of the evidence of the lay witnesses. Relevantly, it seems to me implausible that a professional accountant, if instructed at a meeting to document amounts as loans in the company accounts, would not have attempted diligently to do so (which reinforces my conclusion that there was not a loan agreement concluded at the 16 May 2013 meeting – rather, the discussion was as to options going forward); and Mr Lee’s advice as to the keeping of receipts and the obtaining of valuations was being given as prudent advice for the parties to be in a position to evidence what had occurred (rather than as part of an agreement for the treatment of moneys expended on the renovations as a notional loan in the books of the company).

Expert evidence

Andrew Saunders

  1. Mr Saunders was the valuer who prepared the so-called “before” and “after” valuations to which I have referred above. In his report, Mr Saunders notes that the subject property comprises a single storey detached dwelling (constructed in circa 1910 and extended in 2015) situated on a two hectare rural allotment being Part Lot 11 in Deposited Plan 1002409. The report states that Mr Saunders adopted “the direct comparison and summation approach” to form an opinion of value. In respect of the Homestead dwelling, Mr Saunders commented that the “dwelling was in good condition with good quality floor coverings, joinery, kitchen and bathroom PC items. Hardwood windows and doors are also a positive feature”. Mr Saunders noted that “there is a lack of directly comparable sales evidence and … due to the nature and location of the subject property more recent comparable sales could not be sourced, despite our best efforts”. Regarding market conditions, Mr Saunders noted that the rural market “has increased in value ($/ha) dramatically in the last 12 – 18 months due to a combination of low interest rates and strong livestock prices” and commented that his assessment “together with current sales evidence reflects the market conditions being experienced in the area at present”, cautioning that “if the market conditions weaken, a lesser amount may be achieved”. Mr Saunders concluded that the current market value of the fee simple with vacant possession interest of property as at 24 July 2019 was $1,550,000 (exclusive of GST).

David Bird

  1. Mr David Bird, a certified practising valuer, provided an expert report (Exhibit O) in the applicant’s case. Mr Bird retrospectively valued the improvements “as is” as at 24 July 2019 at $2.4 million; and on a hypothetical basis (as if none of the renovations after 29 April 2014 as described by Fiona had been undertaken but allowing for reasonable wear and tear of the existing improvements up to 24 July 2019 at $2 million).
  2. Addressing the particular questions asked of him, Mr Bird’s opinion was as follows.
  3. First, Mr Bird confirmed that (assuming no extenuating circumstances – of any of which he confirmed he was unaware) the sale of the Caernarvon Property on 24 July 2019 for $2.4 million was the best evidence of value (noting that the sale was for the 37 hectares inclusive of the Homestead and outbuildings, excluding the Lot 10 area of 3.24 hectares on which the cold storage and packing complex (and other office buildings) was situated). It is noted that Lot 10 sold for $2.2 million as at 24 July 2019 (Question 1).
  4. Second, as to the retrospective value of the land and improvements on the hypothetical basis as if none of the renovations after 29 April 2014 as described by Fiona had been undertaken but allowing for reasonable wear and tear of the existing improvements up to 24 July 2019, as noted above, Mr Bird valued this at $2 million but said that had the tennis court work not been undertaken he would advise a value of $1,980,000 (Question 2).
  5. Third, asked to comment on any relevant matters in response to Mr Saunders’ valuation of 19 April 2021 (Question 3), Mr Bird disagreed with the title description (noting that this related to the whole original lot not the notional two hectare curtilage); and pointed out that the description of land was very limited and provided no detail of what was encompassed nor reference to it being a notional or hypothetical portion of a large acreage holding. A main point of contention he had was that there was no sales evidence of a dwelling on two hectares (considering land size to be a base starting point for analysis evidence) and he disagreed with the “lack of directly comparable sales evidence” observation on the basis that he considered there were numerous sales that would fall within that description. Mr Bird also considered that in mid-2019 there was a still declining market yet to see improvement (with the effects of the continuing drought, tough rural economic conditions and “no boost or optimism from the Sydney of [sic; or] major capital city markets” (this last being read subject to relevance)).
  6. Fourth, Mr Bird considered it valid valuation practice (though of a strictly hypothetical nature) to select an unsubdivided part of a lot and compare it with sales of entire lots (on the direct comparable sales method), saying that the resultant value does not assume the subdivision is practical or possible or likely to be approved (simply making the assumption that it exists already in the form described) (Question 4).
  7. Finally, Mr Bird considered that there was a considerable value premium included for the working commercial orchard and its associated infrastructure on the land but said that this had no bearing or influence on the valuation task of determining a value on the issue of the Homestead being fully renovated and extended or in its original state (that being a constant in both valuation scenarios (Question 5)).
  8. In cross-examination, Mr Bird became somewhat defensive of his position, asserting that the cross-examiner had not read his report properly (at T 344.42-45) and resorting to evidence as to his habitual practice (when challenged by reference to his statement as to a lack of directly comparable sales) (see at T 335.42-50, 336.1-50, and 337.1-10).

Mark Ellis

  1. Mark Ellis is a real estate valuer and Managing Director of the firm Independent Property Valuations who gave evidence (relevant only insofar as it goes to the defence to the restitutionary claim) as to the market rent or occupation fee for the Caernarvon Property in the relevant period. He was not cross-examined.

Overall conclusions as to the expert evidence

  1. Overall, I was not greatly impressed by the evidence of either of the valuers – in that I considered that Mr Saunders’ evidence suffered from the difficulty that he had effectively valued the Homestead divorced from its location (an approach that Mr Bird accepted was conceptually valid but which produces an hypothetical result). As to Mr Bird, his approach (which I accept is the more conventional approach for the valuation of a property overall), namely to apply a Spencer v The Commonwealth (1907) 5 CLR 418; (1907) 14 ALR 253 analysis, leads me to conclude that the market value of the Caernarvon Property at around the time of its ultimate sale was $2.4 million, but it is difficult to assess how the conclusion is reached as to what the market value would have been but for the improvements to the property. As to Mr Ellis, I have no criticism of his approach but the issue of market rent or an occupation fee ultimately does not arise.

Issues for determination

  1. Turning then to the parties’ submissions as to the issues for determination, I note as follows.

Timothy’s submissions

  1. At the outset, Timothy contrasts the claim made in the proof of debt and the claim made in the Points of Claim in this proceeding, as follows.
  2. The proof of debt expresses a claim to recover advances under a loan agreement in relation to improvements to the Company’s land; i.e., the claim is framed as a debt arising from a contract (which Timothy complains is seeking to recover the entirety of the amount allegedly spent, regardless of its impact in actually improving the value of the Company’s land). Timothy says that such a case would involve finding a loan by Bernard and Fiona, whereas no advance to the Company directly is alleged (all amounts being said to have been paid to third parties).
  3. Timothy accepts that if a payment discharged a debt owed to a third party, such a payment might be accurately described as a loan if it was money paid by Bernard and Fiona at the request or direction of the Company to discharge a liability that it owed. However, it is said that no request by the Company to make any of those payments has been identified. Further, Timothy says that no liability of the Company to those third parties has been identified. Rather, Timothy says that the evidence of Bernard and Fiona suggests that all of the third-party liabilities were contracted between one or both of them or an entity associated with them; and that when they made payments they were merely discharging liabilities that they or their controlled entity personally owed.
  4. It is noted that the claim as now pleaded in the Points of Claim filed by Bernard and Fiona is framed more broadly, it being alleged that at the 16 May 2013 meeting of members it was resolved that:

… if Bernard and Fiona agreed to fund the repair and renovation of the Homestead and arrange for the said work to be carried out and 474 Canobolas was ever sold, the Company would repay the amounts so funded together with interest at a rate equivalent to the change in the Consumer Price Index over the period of the advance.

  1. Timothy says that this “Renovation Resolution” was not mentioned when Bernard and Fiona contracted to purchase the land in July 2019 nor when the application under the Trustee Act application was made; but, rather, was first raised on 15 November 2019 (the day after the second default in completion of the purchasers’ obligations in relation to the purchase of the property). In particular, it is said that this was not raised in 2018 when the brothers were discussing a financial separation through a formal process (with Mr Thornhill).
  2. Insofar as this resolution is alleged to be “binding on the Company” (see at [35]) Timothy says that it is not explained why this is binding if not constituting a contract bargained for with agreed consideration. It is noted that, at [36], it is alleged that there was an agreement whereby Bernard and Fiona agreed to fund the repair and renovations in consideration for which the Company agreed that, if the land “was ever sold, the Company would repay” the moneys.
  3. Timothy says that this both adds to and subtracts from the Renovation Resolution, which was prefaced by “if” (whereas there is no “if” in the alleged agreement; rather, Bernard and Fiona simply promise to fund the repair and renovation). It is said that, properly understood, the Renovation Resolution does not supply a cause of action but is merely part of the history said to have brought into being the “Renovation Agreement” alleged at [36] of the Points of Claim.
  4. It is submitted that the alleged Renovation Agreement is thus inconsistent with the alleged fact of the Renovation Resolution (which left it to the election of Bernard and Fiona whether they would procure any work at all).
  5. Further, it is said that there is a major problem as to the identification of what work Bernard and Fiona were promising to procure and how it was agreed with the Company as to what it would be. It is argued that if, on the other hand, it was a unilateral contract (whereby the Company offered that, if they did the work, it would pay in case of a later sale) it is not clear for what work the Company was offering to pay.
  6. Timothy argues that Bernard and Fiona’s case suffers from the difficulty that, in effect, it means the Company was offering them a blank cheque to pay for whatever they felt like doing to secure their private comfort regardless of the Company’s own interest. Timothy says that there is nothing in the Renovation Resolution which confers on Bernard and Fiona the right or power to decide for themselves what the repairs and renovations would be. It is noted that they “may”, but need not, fund the work, and arrange for the said work to be carried out; but that this is not the right to decide what work shall be done.
  7. It is submitted that no such implication would be drawn where they were personally interested in the matter (and Bernard was a director). Moreover, it is said that, if the work required development consent, the Company as owner of the land would need to consent to the development application under planning legislation (it being noted that otherwise, development consent could not be obtained and the work would be illegal and that it is a normal implication in contract terms that work is required to be performed lawfully if it can be, see Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215; [1997] HCA 17). Timothy submits that this confirms that there was no “blank cheque”.
  8. Timothy also points to the items for payments to the local Council in the claimed expenses, which he says carry the implication that there was a development application; but he says that there was no corporate consent for the Company’s assent to the work to be communicated to Council; and argues that Bernard and Fiona chose to act unilaterally.
  9. It is said that it does not accord with common sense to think that the Company was agreeing to commit itself to whatever Bernard and Fiona thought fit to do for themselves or by themselves; and that it is not reasonable to put such a construction upon the alleged events; and that, if there was any agreement, it remained one that required the work first to be identified and approved by the Company.
  10. Timothy maintains that the better view is that (these being all members of one family) there was no intention by these informal and unrecorded dealings to enter into legal relations.
  11. It is noted that at [37] of the Points of Claim a “Renovation Representation” is alleged (reinstating the “if”). At [45] and [47], it is alleged that Bernard and Fiona relied on the Renovation Representation in funding and arranging for the work, and in the expectation of repayment if the land was ever sold. Timothy says that the Renovation Representation suffers many of the same difficulties as the Renovation Agreement and that reliance thereon could not be reasonable.
  12. As to the evidence, Timothy says that it is improbable that things happened or were said as they are alleged (citing Watson v Foxman).
  13. As to the alleged Accounts Resolution and Accounts Representation, Timothy says that these suffer from the following difficulties. First, that the works are not works at large but the “renovations required” of which “Bernard spoke” at the meeting and that these are not identified. Second, that the statement that “Des advised to keep records of amounts spent” must (if this arrangement is contractual or a binding representation) be a condition of the Company’s liability (since otherwise it is submitted that the Company could not comply with its obligations under s 286 of the Corporations Act). It is submitted that if this is the only formal thing in this resolution, agreement or representation, then there can be no warrant for leaving it out of the terms binding on Bernard and Fiona. Third, that the statement that “the amounts will be recorded and owed to B & F” stipulates a requirement that the outlays be presented to the Company for approval and recorded in its accounts.
  14. Timothy says that this was not a minute at all, and that it was not a record of the Company (noting that it was not kept with the Company’s records and was not shown to anybody else – least of all to the Company’s accountant, who prepared the Company minutes). It is noted that there was no request made to incorporate it into the formal minutes and records of the Company. Timothy argues that if the deal were as alleged there could be no reason to suppress this record (which, I interpose to note, presupposes that it was ‘suppressed’ as such).
  15. It is said that the Company’s annual financial statements (some of which were signed by Bernard) not only did not record these alleged liabilities but also asserted a state of affairs that necessarily excludes their existence (and declared that this was the true and fair statement of its financial position).
  16. In summary, Timothy contends that there was no contract, resolution or representation in the terms alleged; that, if there was any agreement, its conditions were not adhered to by Bernard and Fiona; and that, having failed to comply with the conditions that they themselves propound, Bernard and Fiona cannot now be heard to allege that the Company owes a contractual liability or that they relied on representations made on conditions that they chose to ignore. Further, it is said that, if there was an agreement to pay for renovation expenses, it was performed in a manner that constituted breaches by Bernard of either or both of the profit and the conflicts rules (in failing to keep any proper records in the Company’s accounts so that its true liability could be ascertained and over capitalisation avoided).
  17. It is further said that there was not such a clear and unequivocal representation as could found a promissory estoppel.
  18. As to the allegation at [56] of the Points of Claim as to unjust enrichment, it is noted that unjust enrichment is not a cause of action per se and that there is no allegation in this part of the pleading of a request. Timothy says that the allegation in [56] is unclear and that, if what is here asserted is some equitable claim by analogy with a claim for contribution between co-owners, then Bernard and Fiona would need to submit to an occupation fee and could not claim more than the lower of cost and the increase in value brought about by the improvements, nor could they claim ordinary repairs.
  19. Reference is made to Ryan v Dries [2002] NSWCA 3; (2002) 10 BPR 19,497 at [2] where Sheller JA explained the rules as to contribution between co-owners as an application of the equitable maxim that he who seeks equity must do equity. It is submitted that, given that a winding up by the Court is an administration by the Court, such a claim as Bernard and Fiona here seek to make for contribution to conservation and improvement of the Company’s property (under what in their own case was a deal between shareholders) can be seen to be an equitable claim (and subject to equitable restraint). It is said that this is especially so, where Bernard and Fiona have themselves claimed to set-off Bernard’s equity in the Company under the vendor finance arrangement and applications under s 477(2B) of the Corporations Act.
  20. Timothy says that, over the 20 years of occupation, the benefit of rent-free occupation was close to $450,000 (relying on Mr Ellis’ evidence of an occupation fee). It is noted that the difference in value of the land before and after the improvements, as at the date of sale (24 July 2019) is $400,000; and that the value of works disclosed to Council in connection with the Occupation Certificate was $350,000.
  21. As to the evidence of the renovations, Timothy submits that it falls short of cogent and reliable evidence that all of the claimed work was done and paid for at the prices alleged. It is noted that the cost is principally deposed to by Fiona and that her evidence does not prove the figure of $1,050,797.58 alleged in the accountant’s letter of 26 November 2019.
  22. Timothy points to items of renovation expenses claimed in Fiona’s affidavit where there are renovations for which quotes, invoices and payments do not match or where there is some other deficiency such as lack of records. Assuming the higher figure where there is an inconsistency between quotes, invoices, payment or other evidence, Timothy says that, of the $754,840.45 for which Fiona has claimed in her evidence, deficiencies in the record keeping exist for $655,844.61 of that amount, being approximately 87% of the total sought to be reimbursed under the purported loan agreement.
  23. Timothy says that Mr Nunn’s one-line progress claims do not follow any obvious scheme to identify the portion of work performed in each progress claim, nor supporting vouchers. It is noted that the expenses claimed by Bernard and Fiona include substantial amounts for payments direct to the kitchen and joinery tradesperson, the electrician and others whose trades are not clearly indicated. It is said that, if Mr Nunn was the head contractor, these should be included in his contract price; on the other hand, if these other works were outside his scope of works then the project would seem to be overcapitalised and well outside the scope of anything discussed in an “informal chat on 16 May 2013 or whenever it was”. Timothy’s complaint is that the relationship of all these items in the evidence of Bernard and Fiona is obscure and haphazard.
  24. As to [123] of Fiona’s first affidavit, it is said by Timothy that it is highly irregular to be paying cash for renovations purportedly completed by John Nunn for which no invoices were issued; and it is submitted that there is obvious reason for caution in assessing the honesty of Bernard and Fiona given that evidence.
  25. As to [184] of Fiona’s first affidavit, it is said that the costs of landscaping gardens were not a renovation of the Homestead and should not be allowed in any assessment of costs incurred pursuant to any purported agreement to renovate the Homestead.
  26. Further, it is noted that a number of payments seem to have been paid through an entity controlled by Bernard and Fiona (Caernarvon Cherry Company) as expenses on revenue account.
  27. Timothy says that another unmeritorious claim is for the costs of work to the tennis court (which it is said predated the alleged agreement by about ten years). Timothy says that the inclusion of such an obviously anachronistic item shows that Bernard and Fiona are unwilling to confine their case to any genuine claim; and that this must reflect adversely on their personal credit as well as the credibility of their overall claim.
  28. It is submitted that nothing like the sum alleged in the evidence was spent, let alone what was alleged by correspondence; and that it is likely that Bernard and Fiona wished to remain where they were living free of rent and were prepared to spend on improvements for their personal comfort. It is noted that relations between the brothers were strained and it is submitted that it was convenient for Bernard to exercise the independence of doing what he wished on his own terms at his own cost without needing to consult a brother with whom he was not on good terms.
  29. Thus, Timothy submits that the decision of the liquidators to admit the proof of debt should be set aside and that the proof of debt should be rejected. Timothy contends that Bernard and Fiona should pay the costs of all other parties of the Interlocutory Process and the costs and expenses occasioned by the proof of debt and of the consideration given to it by each other party.

Bernard and Fiona’s submissions

  1. Bernard and Fiona’s claim to the moneys the subject of the proof of debt is now put on three bases (although as Timothy notes this involves some expansion of the claim as articulated in the Proof for Debt), those being: in contract; by reference to principles of estoppel; and in unjust enrichment.
  2. At the outset, Bernard and Fiona emphasise the following matters as being of contextual import when assessing the likelihood that the parties (and particularly Bernard and Timothy) entered into the arrangement for which Bernard and Fiona here contend.
  3. First, that the critical events occurred in the conduct of a family business in which it is said that few (if any) significant decisions were formally recorded. Reference is made to the recognition that some imprecision of thought and expression in private family dealings might be expected (referring to Gummow J’s observations in Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363 at 370; and to Herdegen v Commissioner of Taxation (Cth(1988) 84 ALR 271; [1988] FCA 699 at 277 per Gummow J (his Honour then sitting on the Federal Court of Australia)).
  4. Second, that the protagonists are two brothers and (although Timothy has asserted that at the relevant time the relationship between the brothers had deteriorated) Bernard and Fiona point to the fact that in December 2013 the brothers had decided to purchase a further property (in Nancarrow Lane) in their joint names.
  5. Third, that prior to July of 2019 the five properties from which the Bonny Glen Fruits business operated had various owners but that the differences in ownership were not observed in managing and dealing with those properties. Bernard and Fiona say that the main operating company was Bonny Glen Fruits and that where any capital expenditure on those properties was made for business purposes, the outlay was made by that company (Bonny Glen Fruits). It is noted that Bonny Glen Fruits owned the trees on the Company’s (i.e., Caernarvon Canobolas’) land.
  6. It is noted that the family members living in the properties did not pay rent to the other co-owners; and that those others who rented properties on the land paid rent to Bonny Glen Fruits (not to the owners of the relevant property). It is said that both Bernard and Timothy did repairs and renovations on properties jointly owned by others (and Bernard and Fiona refer in this context to work caried out by Timothy to one of the properties – Melrose Cottage – without asking Bernard’s permission, despite the fact that Bernard was a co-owner). Reference is also made to the subdivision of a two hectare portion of “Melrose” (the Nashdale Property) and its transfer to Timothy without payment (as referred to above).
  7. Fourth, Bernard and Fiona point to the practice of Mr Lee, the principal of the accounting firm that prepared the taxation returns, company or partnership accounts and corporate compliance documents for the entities within the family group, once a year to visit the family to deal with the explanation and execution of the said documents. It is said that Mr Lee operated as a trusted adviser in matters connected with taxation and corporate compliance; and it is submitted that (in light of the many errors and misstatements in those documents) it is artificial to suggest that either brother gave any consideration to the content of the corporate compliance documents “or how simple family dealings might intersect with their obligations as directors of the company”.

Contract

  1. As to the contractual basis for the claimed debt, Bernard and Fiona say that a contract was made in May 2013 whereby they agreed to pay for improvements to the Company’s property (the Homestead) in return for which the Company agreed to pay back the amounts expended, with interest, if the Company or the property were ever sold. It is said that no question of lack of consideration arises, since the Company would own the improvements as part of the renovated property.
  2. Bernard and Fiona invoke the principle that, if all the shareholders of a company are present together in a meeting, and signify their assent to a transaction which is within the powers of the company, their decision will be effective, as if a resolution to that effect had been passed at a properly constituted meeting (notwithstanding that those present at the meeting may have thought they were conducting a directors’ meeting and the necessary formalities required for the calling of a general meeting had not been observed as was the case in In re Express Engineering Works Ltd [1920] 1 Ch 466 or that those present may have thought they were conducting a meeting and passed a resolution, but where, in fact, the requirements of the articles or the Companies Act as to notice had not been observed as was the case in In re Oxted Motor Co Ltd [1921] 3 KB 32; In re Bailey, Hay & Co Ltd [1971] 1 WLR 1357).
  3. Bernard and Fiona say that, where the transaction is intra vires and honest, it is valid if all corporators assent, and it does not matter whether assent is given at a meeting of some kind, or without a meeting, and whether it is given simultaneously or at different times and places (reference being made to Parker & Cooper Ltd v Reading [1926] Ch 975; Brick & Pipe Industries Ltd v Occidental Life Nominees Pty Ltd (1992) 6 ACSR 464; [1992] 2 VR 279 at 314 per Ormiston J; MYT Engineering Pty Ltd v Mulcon Pty Ltd (1999) 195 CLR 636; [1999] HCA 24; Sutherland (in his capacity as liquidator of Sydney Appliances Pty Ltd (in liq)) v Robert Bosch (Australia) Pty Ltd (2000) 33 ACSR 680; [2000] NSWSC 32 per Santow J).
  4. Pausing here, each of the Australian authorities invoked by Bernard and Fiona applies the Duomatic principle in Re Duomatic Ltd [1969] 2 Ch 365 (Re Duomatic) espoused by Buckley J at 373 that “where it can be shown that all shareholders who have a right to attend and vote at a general meeting of the company assent to some matter which a general meeting of the company could carry into effect, that assent is as binding as a resolution in general meeting would be”. As I have noted previously (at [3795] in Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2020] NSWSC 1778), where accounts of key conversations are inconsistent or contradictory, such that the Court cannot be satisfied as to what was said or agreed, this difficulty may intrude in relation to the application of Re Duomatic.
  5. Reliance is placed by Bernard and Fiona on Fiona’s notes of the meeting on 14 September 2012 (see above). Bernard and Fiona argue that the prospect of having the Company commit to recognising the expenditure on the renovations was within the contemplation of both Timothy and Bernard at the time of the meeting on 16 May 2013. It is said that both Timothy’s and Mr Lee’s evidence record discussion amongst the four (Timothy, Mr Lee, Bernard and Fiona) as to renovations and recording the expenditure in the Company’s books; and that, other than to mention valuations, there is no suggestion that Timothy expressed any curiosity about the planned improvements. It is submitted that, given that prior to this time, each of the brothers had done renovations to houses for which they had not sought reimbursement, Timothy could not have expected that what was contemplated was minor (and that the suggestion of the valuations supports that contention).
  6. As to the 16 May 2013 meeting, Bernard and Fiona say that, given what had occurred at the previous meeting, Fiona’s note records a simple contract to recognise amounts spent by them to improve the Company’s property as a debt due to them by the Company. It is said to be the kind of contract routinely made by shareholders and directors who make loans to small closely held companies; and that further terms should not be imposed on the contract with the benefit of hindsight.
  7. Bernard and Fiona say that the informality of the particular meeting in May 2013 on which they rely is unremarkable and was entirely consistent with the way such meetings had been conducted by the family for many years. It is said that neither Timothy nor Mr Lee gave any indication that any further formality or other action was required to make the Company’s promise binding upon it.
  8. It is said that as the property has now been sold, the precondition to repayment has now been satisfied; and the Company is bound to repay to Bernard and Fiona the amounts that were paid by them to fund the renovations to the Homestead together with interest.

Estoppel

  1. As to the invocation of principles of estoppel, Bernard and Fiona contend that the words and conduct of Timothy and Mr Lee conveyed a representation at the meeting on 16 May 2013 that a binding agreement had been reached between Bernard and Fiona and the Company that the Company would repay the amounts funded together with interest and that the amounts would be reflected in the accounts of the Company as a debt.
  2. It is noted that estoppel by representation precludes a party who, by his or her representation, has induced another party to adopt or accept a state of affairs and consequently to act to that other party’s detriment, from asserting a right inconsistent with the state of affairs on which the other party acted (reference being made to the well-known decisions in Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 and Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641; [1937] HCA 58).
  3. It is submitted that the representation of an existing agreement was a representation of an existing state of affairs (citing Legione v Hateley (1983) 152 CLR 406; [1983] HCA 11 at 432 per Mason and Deane JJ; Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7 at 398 per Mason CJ and Wilson J, at 415 per Brennan J, and at 459 per Gaudron J; Jorden v Money (1854) 5 HL 185).
  4. Bernard and Fiona say that the circumstances were such that it was obvious that they would (and did) rely on the representation to expend large sums of money on the property in which they lived but did not own. They maintain that both the Company and Timothy knew that they would act on the basis that such an agreement was in place.
  5. It is submitted that, given that Timothy and Bernard are the only two shareholders in the Company and that there will be a surplus (on the winding up of the Company), if the Company and Timothy were allowed to depart from the representation then not only would Bernard and Fiona lose half the money that they put into the renovations but also that expenditure would not form part of the cost base for the Company’s benefit on the sale of the Homestead and accordingly the Company will pay significantly more by way of CGT on the sale (which in turn will reduce the net dividend to the two shareholders).

Unjust enrichment

  1. Finally, as to the claim in unjust enrichment, it is said that Bernard and Fiona funded the renovations to the Homestead in the belief that, if the property was ever sold, the Company was contractually bound to repay the funds so advanced. It is submitted that this belief was encouraged by the conduct of Timothy (the other director and shareholder) and accepted by him in the knowledge that the works were a benefit to the Company; and that, if the Company was not so bound (because there was a failure to satisfy the requirements which determine the existence of a contract), then Bernard and Fiona’s decision to fund the renovations was as a result of their mistaken belief that the Company was so bound. It is said that, to allow the Company to benefit from that mistake (with the further result that the ultimate dividend to Bernard (and Timothy) will be reduced by the increased Capital Gains Tax payable) is unjust.
  2. Bernard and Fiona say that, in the circumstances, the claim is analogous to either a claim for money paid (referring by way of example to Hutchinson v Sydney (1854) 10 Ex 438), being the payment of the various contractors by Bernard or Fiona, or alternatively a claim in quantum meruit, being the non-monetary benefit of the work done in improving the Homestead. Bernard and Fiona say that (even assuming that there was no settled arrangement for accounting for amounts spent by Bernard and Fiona), Timothy expressed consent to the work being carried out in the knowledge that Bernard and Fiona would be seeking recompense. It is said that, as the only other director and member of the Company, Timothy accepted the work renovating the property being carried out at Bernard and Fiona’s expense. In the circumstances, it is submitted that, at the very least, Bernard and Fiona are entitled to recover the fair value of the benefit that they provided to the Company (reference here being made to Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221; [1987] HCA 5 (Pavey v Paul)). Further, as to the first of those bases, it is said that the fact that the bills were made out to Bernard and Fiona is a matter of form and not substance; emphasising that the work was done on the Company’s property.

Response to the complaint as to breach of fiduciary duty

  1. As to Timothy’s complaint about breach of fiduciary duty in relation to the approval of the alleged loan agreement, Bernard and Fiona say that no such breach is made out. It is said that at the time of the 16 May 2013 meeting, the basic elements of what was proposed were obvious to Timothy (the other director and shareholder), i.e., he knew that what was proposed was a renovation of the house owned by the Company, which would be paid for by Bernard and Fiona, who would reside in the house when renovated. It is said that the advantage that Bernard would gain as a director from the transaction was obvious; and that there was no detriment to the Company which secured a corresponding advantage. Bernard and Fiona say that, at the time of the 16 May 2013 meeting, all of the known relevant facts were disclosed to Timothy and the Company. (Pausing here, what was relevantly not known at that stage was the scope of the intended renovations and the quantum of the costs that would ultimately be incurred.)
  2. Bernard and Fiona point out that those to whom fiduciary duties are owed may release those who owe the duties from their legal obligations and may do so either prospectively or retrospectively, provided that full disclosure of the relevant facts is made to them in advance of the decision (reference here being made to the decision of Gleeson CJ and Heydon J in Angas Law Services Pty Ltd (in liq) v Carabelas (2005) 226 CLR 507; [2005] HCA 23 at [32], their Honours there quoting from P L Davies, Gower and Davies Principles of Modern Company Law (7th ed, Sweet & Maxwell, 2003) at 437).

Quantum

  1. As to quantum, Bernard and Fiona concede that Fiona’s evidence as to what was paid when and why was confused and confusing. It is submitted that in some part that can be attributed to the fact that Fiona first embarked on collating all the material when preparing the proof of debt in November 2019. In closing submissions Bernard and Fiona provided a spreadsheet that collated the documentary evidence in the Court Books and said that (without admission that the amounts previously claimed had not been spent), to the extent that an aspect of the claim was not supported by documentary evidence, that claim has been abandoned. The amount as now claimed in accordance with the spreadsheet is to the value of $768,918.86.

Determination

Contract claim

  1. I am not satisfied on the balance of probabilities that a binding contract was concluded at the meeting of 16 May 2013 as contended for by Bernard and Fiona. I accept that it is not uncommon in dealings between family members for there to be a level of informality in their arrangements. However, it is clear from the evidence of the family members in this case that what was being put forward at the September 2012 meeting was the desire of Bernard and Fiona to renovate the Caernarvon Property and that Timothy (far from agreeing to any reimbursement arrangement) was putting forward other options for their consideration such as buying another property or subdividing the Caernarvon Property so that a smaller block could be transferred to them (as had occurred in relation to the Nashdale Property in his case).
  2. In evidence that Timothy relies on as fatal to the case put forward by Bernard and Fiona (at T 175) there was the following exchange in relation to what was said at the meeting to which Bernard deposed at [150] of his affidavit:

Q.     Can you remember anything else that Des said at this meeting?

A.     The only thing I can remember was that he did give us a few options, one was to get a valuation before and after.  And the other one was to keep the receipts and he’d basically he’d put it into financials to, like, and then we’d be ‑ if down the track anything gets, you know, sold or whatever that ‑ or split, that we would be reimbursed at some point, or if not reimbursed like, you know, what’s the word, like they’d be an equalisation, I suppose, something like the words to that affect [sic], and we could be repaid the equivalent of CPI, to the CPI.  Words to that affect [sic], and I’m not 100%, you know, but I know there was a couple of things bandied around and one was definitely to get a valuation done before and after.  And then to make sure we keep the receipts and we could be ‑ we would be reimbursed on the event that we ever sold or whatever, and we could be – he’d take, he’d take the CPI into account.  That’s about all I can really tell you about that.

Q.     These were options for you to consider and talk about amongst yourselves and decide on, is that it, if you wanted to?

A.     Correct.

Q.     You didn’t ever come to a definite decision about any of them, did you?

A.     Well, we were waiting for ‑ no, you’re right, no

  1. Bernard, quite candidly, accepted that he did not have an independent recollection of the meetings set out in his affidavit (see for example at T 172). For Timothy, it is said that in the passage set out above, Bernard accepted that there was no consensus at the meeting at which it is alleged there was (and Timothy says that this is an unequivocal concession fatal to the case put forward by Bernard and Fiona).
  2. Fiona’s evidence (see from T 99ff) of the conversations at the relevant meetings is also said to involve a fatal concession (at T 102). Timothy says that the cross‑examination at T 99-100 established that the discussion (as to the renovation work) was not at the first meeting (because that was the meeting where Timothy suggested that they look at the option of buying a property somewhere nearby). At the second meeting, attended by Mr Lee, Fiona’s oral evidence was that “[she and Bernard] brought the subject up again about the renovation, and Des said to keep a copy of all our expenses”. Fiona did not recall a response to that from Timothy “[e]xcept he didn’t object to it, and yes, so he didn’t object”. Fiona accepted that, while the discussion was going on Timothy was looking through papers and signing papers (saying that there were always lots of papers to sign) but she was firm that Timothy had stopped and heard the conversation.
  3. Asked about what Bernard had said at the meeting about the work, Fiona said (T 101.20) “That we need to renovate the house. We did some minor renovations prior, and we need to do some major renovations now; the house is dangerous and cold and we’ve got three little kinds. And we were not looking for reimbursement, we just want it acknowledged”. Asked whether it was the same meeting at which Mr Lee said that money spent for renovations would have to be put in the books of the Company, Fiona said (at T 102) “No, that – Desmond said that at a prior meeting, prior”; and that was the first advice from Mr Lee.
  4. At T 102, there was the following exchange:

Q.   The first advice from Des Lee wasn’t the end of the matter because, at a later meeting, Bernard said, “We’ll be responsible if we over capitalise”, is that the sequence?

A.     Des and Tim requested that we got some valuations done before the renovations and after the renovations.

Q.     That told you, didn’t it, that you did not have agreement to recoup whatever you’d spent, is that right?

A.     Well, it was our money going into the renovation, yes.

Q.     You had no understanding that you would be entitled to recoup every dollar that you spent, is that right?

A.     We were asking for just what we put into the place to be recognised, we weren’t asking for reimbursement.

Q.     You accept, don’t you, that there was no promise by the company to pay you whatever you spent on these renovations?

A.     And we weren’t expecting it at the time, we didn’t expect that we’d be going through this process.  We were happy to put our own money in to a very old house, with three little kids, to make it comfortable for us.

Q.     It’s true, isn’t it, that this was all so long ago that you can’t remember the precise order of the events of these discussions about the renovations and how the expenses might be recognised?

A.     Well, we’d worked the time – I’d worked the timeline out plus the discussions that were had, I was very ‑ making sure that before we moved a brick that we were going to be recognised for our personal money, a lot of my parents’ money went into it as well.

  1. Timothy argues that the above evidence is fatal to the concept that there was a loan (it being Fiona’s evidence that they were not looking for reimbursement but rather for recognition of the moneys that they were going to be putting into the property). To my mind, this is the real nub of the problem – that Bernard and Fiona were (quite understandably) wanting to be sure that their monetary contribution to the renovations would be recognised in some fashion (i.e., that they were not altruistically looking to benefit the Company for its own sake). However, what is not clear is as to how that would be achieved. In other words, Bernard and Fiona were not seeking (or expecting) reimbursement as such (and recognised that they would have the benefit of occupation of the property with the improvements) but expected that ultimately if the property were to be sold there would be some sort of adjustment between Timothy and Bernard to reflect the contribution they had made or the value they had added to the property. What is not, however, apparent is that this was made clear to Timothy in such a way that would now bind his conscience, let alone that he agreed to it.
  2. I accept that at the 16 May 2013 meeting there was a concern expressed by Bernard and Fiona that their expenditure of funds by way of renovation of the Homestead (assuming that were to occur) should be “recognised” in some way (so that the benefit of the input of those funds would not be lost to them). However, it was not clear that any agreement was reached as to how that recognition was to be achieved; and to my mind the concept of “recognition” of their expenditure is quite inconsistent with a loan agreement having been concluded. So, too, do I consider that the idea of before and after valuations (so that there be no over capitalisation of the property) is inconsistent with a loan agreement having been concluded.
  3. I accept that from a CGT perspective the keeping of receipts would have relevance (as may the valuations of the property before and after renovation) but in essence this was advice from an accountant as to how to document or prove one’s expenditure. I am not persuaded that statements by Mr Lee were representations binding on the Company. Rather, it was Timothy’s consent that was necessary in order to commit the Company to an arrangement whereby funds expended on renovations would be treated as loans repayable to Bernard and Fiona if the Caernarvon Property (or Company) were to be sold.
  4. I consider that the concept of recognition of the moneys expended by Bernard and Fiona was thus more consistent with an arrangement whereby (on a sale of the property) they would have the benefit of the value added to the property by those renovations, not that the expenditure would be reimbursed cent-by-cent from the Company. The notion that Bernard and Fiona were being given a blank cheque to spend what they liked on the Caernarvon Property is implausible.

Estoppel

  1. The principles of estoppel (both promissory and proprietary) are well-known and I do not propose here to repeat them (see the well-endorsed judgment of Brennan J, as his Honour then was, in Waltons Stores (Interstate) Limited v Maher (1988) 164 CLR 387; [1988] HCA 7 at 428-429, those elements being said to be a useful check, though not to be applied in every case in a mechanical fashion (see Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105 (Doueihi) at [166] per Gleeson JA, Beazley P (as Her Excellency then was) and Leeming JA agreeing; and see DHJPM Pty Ltd v Blackthorn Resources Ltd (2011) 83 NSWLR 728; [2011] NSWCA 348 at [47] per Meagher JA, Macfarlan JA agreeing (DHJPM)). Again, I do not accept that there was any representation to the effect that Bernard and Fiona were to be given a blank cheque. Timothy clearly wanted acceptable valuations to be obtained and did not agree to those that had been put forward. I am therefore of the opinion that the estoppel claim is not made good.

Unjust enrichment claim

  1. As to the unjust enrichment claim, I accept that this is not a cause of action per se. Rather, restitution, on the basis of unjust enrichment, will be available only where a recognised ‘unjust’ factor has been established (see Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [150]-[151] per the Court; Australia and New Zealand Banking Group Ltd v Westpac Banking Corporation (1988) 164 CLR 662; [1988] HCA 17 at 673 per Mason CJ, Wilson, Deane, Toohey and Gaudron JJ; David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353; [1992] HCA 48 at 379 per Mason CJ, Deane, Toohey, Gaudron and McHugh JJ). In Lumbers v W Cook Builders Pty Ltd (in liq) [2008] HCA 27; (2008) 232 CLR 635 (Lumbers), Gummow, Hayne, Crennan and Kiefel JJ stated (at [80]) that “where one party … seeks recompense from another … for some service done or benefit conferred by the first party for or on the other, the bare fact of conferral of the benefit or provision of the service does not suffice to establish an entitlement to recovery”.
  2. There was no request made by the Company to bring this within a quantum meruit type claim. Nor does this fall within the notion of free acceptance (which is in any event not a notion adopted with enthusiasm in English and Australian law – see Lumbers at [75], [80] per Gummow, Hayne, Crennan and Kiefel JJ; Damberg v Damberg (2001) 52 NSWLR 492; [2001] NSWCA 87 at [192]-[193] per Heydon JA). In Lumbers, the plurality observed at [75] that:

None of the terms, “benefit”, “acceptance” or “expense”, can usefully be defined or applied without deciding whether attention is to be confined to the party who is identified as conferring the benefit and the recipient of that benefit, or account must be taken of the legal relationships that exist between one or other of those two parties and some third party or parties in relation to the events and transactions said to constitute conferring a “benefit”, its “acceptance”, or the incurrence of expense.

  1. The plurality went on to cite the remarks of Bowen LJ in Falcke v Scottish Imperial Insurance Co (1886) 34 Ch D 234 at 248:

… The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will.

  1. As to the issue of acquiescence (which has troubled me since it is clear that Bernard and Fiona considered that they would be recompensed in some way for the moneys they expended or at least that this expenditure would be “recognised”) the difficulty I have is that Timothy has not been shown to have had knowledge in advance of precisely what was proposed (and by the time it is suggested that he saw the renovations or the extent of the renovations it was effectively too late – the works had been undertaken). The relevant development application and building contract documents were signed on behalf of the Company by Fiona (who was not a director) and Bernard – and there is no suggestion that they were brought to Timothy’s attention.
  2. Moreover, I cannot see that there was any acquiescence in ongoing works from time to time (nor would it extend to earlier works such as those on the tennis court). This is to my mind a case where the parties seem to have been at cross purposes but that does not mean it is unconscionable for Timothy now to deny that the Company is bound. Rather, I see force in the submission that the expenditure that Bernard and Fiona chose (without consultation as to amount) to incur in relation to the renovations should not now be foisted upon Timothy.
  3. Even had the claim in unjust enrichment been made good, there are real issues in my opinion in relation to the evidence of expenditure. I do not suggest any fraudulent concoction of invoices (as I have already made clear) but there are real difficulties in establishing precisely what was spent on what items of renovation. If unjust enrichment had been made good then this would warrant relief to require Bernard and Fiona to be compensated for the value which they added to the Company’s property (as realised in the sale price) not recompensed for each cent they spent on the property. The unifying concept of unjust enrichment is the obligation to make fair and just restitution for a benefit derived at the expense of another; accordingly, the relief must be commensurate with the benefit obtained and must be “fair and just compensation” (see Pavey v Paul, 256 (Deane J)). Moreover, not everything which was expended on the property seems likely to have increased or added to its value – light fittings for example I query whether they would be seen to be improvements as such. Furthermore, I am not persuaded that the value attributed by Mr Saunders on the improved value of the property is reliable.
  4. Had I considered that the unjust enrichment claim was made good I would not have considered that a set-off for breach of directors’ duties was made out (since on this hypothesis Timothy would have acquiesced in the conduct or otherwise acted so as to make it unconscionable for him complain about a breach of fiduciary duty on Bernard’s part). Nor would I have considered that an offset for occupation fee was warranted (since it seems to have been contemplated that family members would have the benefit of occupation rent free – as did Timothy – irrespective of amounts paid on improvements or renovations). However, what the evidence as to the occupation fee does indicate to me is that ultimately Bernard and Fiona have had the benefit of occupation of their home with the benefit of the improvements such that the detriment to them of having had to pay an additional amount referable to the value of those improvements in order to acquire the Caernarvon Property on the separation of the jointly owned assets is not as severe as might otherwise have been thought.
  5. Moreover, to the extent that the outcome is perceived within the family to be inequitable to Bernard and Fiona, there is presumably scope for their parents to address this in some way (though I accept that this involves an element of speculation).

Conclusion

  1. For the above reasons I am persuaded that Timothy’s claim should succeed and that the proof of debt should be rejected. (Had it been admitted it would in any event have been for a much reduced amount – in the order ultimately of around $400,000 – see T 371.1-4.) I therefore make the following orders:
  1. The appeal be allowed.
  2. The liquidator’s determination to admit the proof of debt dated 15 November 2019 submitted by the second and third respondent be set aside and the said proof of debt be rejected.
  3. The second and third respondents pay the costs of:
  1. the applicant and the first respondent of and incidental to the amended interlocutory process; and
  2. the applicant and the first respondent (including liquidation costs, expenses and liquidators’ remuneration) of and incidental to the submission, consideration and determination by the liquidators of the proof of debt dated 15 November 2019 submitted by the second and third respondents.

**********

Amendments

07 April 2022 – Amendment to representation on coversheet

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 07 April 2022

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Many R’s Podcast – S1E7

The Many R’s Podcast – S1E7

0:01 Introduction

0:33 Recap – what is the Many R’s Podcast about?

1:18 Where are we?

1:30 personal update

1:49 Lockdown, Insolvency, Jobkeeper, Jobsaver, Services NSW

2:41 Bunnings Gift Cards

2:59 Hakan Kutup

3:24 Matthew James Taunton / Abel Agency / Wiseberry Real Estate Box Hill NSW.

4:08 131MVR

4:35 Caernarvon Cherry / Bonny Glen Fruits Pty Ltd (in Liquidation), Bernard & Fiona Hall

4:59 AFSL – Snowgums Hospitality Fund (Orange NSW), Snowgums Heritage Blog

https://www.snowgumsretreat.com/categ…

https://www.dcpartners.solutions/snow…

6:53 Ralph Paligaru update

7:04 Mohan Kumar / Chhota Rajan update

12:55 Dural Alliances Pty Ltd (in liquidation), Ralph Paligaru, Bargo Developments, Australasian Property Group Pte Ltd etc – litigation funding update.

15:05 APG / Ian Jordan / Ralph Paligaru, Dreketi Timber Mill

17:02 Ralph Paligaru – Bankruptcy update

20:14 wrap up – Mohan Kumar / Chhotta Rajan, Dreketi Timber Mill, Ralph Paligaru, Craig Adams – what to expect in S1 Episode 8.

21:20 how to contact us

21:30 credits

Podcast – homepage – click here.

Transcript:

rogues rascals reviewables rorts rip-offs receivers real estate agents and much much more. the many R’s podcasts, it’s about a whole bunch of R’s – season 1 episode 7 i’m your host mark smith from dc partner solutions. come and visit us on our website anytime www.dcpartners.solutions/podcast

otherwise give us a call 1-300-327-123, until late usually, we love talking to people or you can instant message chat with us in our website www.dcpartners.solutions/podcast
bottom right hand corner use the instant message chat tools. thank you and welcome all right so let’s just have a quick recap about what is the many rs podcast is about and it’s certainly about uh all the rat bags and rogues and rip-off artists and sometimes about some receivers some real estate agents some uh some rackets uh and the likes but uh we’re certainly here to have a look at uh some corporate villains uh there hasn’t been so many travel rip-offs lately so uh so that’s good because we can’t travel anywhere um government malfeasance well that nothing’s uh specifically come onto our radar, so there’s nothing there to talk about some iffy lawyers we’re going to get into uh a little bit of that a little bit later on um insurance racketeers uh all sorts of racketeers and awards uh bankers and receivers well uh i don’t think we’ve got anything in this specific episode to talk about racketeers banks and receivers so let’s move on to where are we uh we’re going to have a look at some of the specific things that are on our mind at the moment. so uh as i’ve mentioned in some of the other episodes … i’ve really got a squeaky chair um i love the squeaky chair it gets the oil …. um but it has been a massive year for me personally uh it’s been obviously this covered thing but i’ve just completed my juris doctor to go with my masters of business administration and i’ve now embarked on to practical legal training and uh i’m 1/6 th of the way through that so that’s so that’s quite exciting uh. what isn’t exciting is a lockdown, and one gets the feeling that there’s going to be all sorts of things that will become themes in coming months the lock down this uh undoubtedly there’s reports every night on the news about small business suffering um and uh so i guess what that means is insolvency and that just happens to be a space that um we are really we’ve been very interested for a long time in insolvency and pre-insolvency company structuring, corporations law and so on so um with uh certainly with my MBA – the master of business administration –
i’m sure uh we can offer some valuable insights so if you’ve got a problem uh involving any of these things: the lockdown, insolvency, job keeper, the ato, tax debts – you name it, services NSW, oh my gosh uh getting funds out of them well it’s just obviously it’s it must be a honeypot for all of these things so um and yeah look sure that probably slows the process down for the the honest business people so uh watch for this to be a theme in coming weeks, now um bunnings gift cards.
um it’s probably not the uh uh not the number one rort that comes to mind but uh you know we’ll be doing a very small episode / segment on the bunnings gift card rort (soon) and uh that is uh it is absolutely rubbish it is a rubbish that’s that’s. and we catch with Hakan Kutup, our great mate from season 1 episode 1 um i i had a look uh just to see exactly what jail he’s in and uh no one knows um well you can’t find out off the uh services you know what the correctional services website yeah Hakan’s got privacy anyway um look a bit of an update on our buddy hakan, um there’s been orders for the sale well um for possession of his house so um but uh he’s got the uh covered reprieve so that one’s coming up now we’ve got another budding um um matthew james taunton now whether he’s a budding he can’t cut up or not uh time will tell but um matthew james taunton from abel agency uh was called wiseberry uh at uh box hill uh that box hill is in the northwestern suburbs of uh sydney well this matthew james taunton is one to watch so if you’ve had any dealings with matthew james taunton uh drop us a uh a message on the instant chat tool www.dcpartners.solutions/podcast we’d love to hear your thoughts on matthew james taunton now make sure we put up a matthew james taunton fan club page uh abel agency or wiseberry real estate so he’s our real estate star of the month um our former centerfold if you like gregory john walker nothing to report there actually i think greg’s been a a very good boy uh of late so um uh well the only thing i’ve got to report is that um one of his uh one of his receivers had a huge loss so project up in uh gosford they might actually uh that might actually go ahead so good on you mr walker um Caernarvon Cherry Pty Ltd uh Bonny Glen Fruits Pty Ltd (in liquidation) and uh bernard and fiona hall well just the very quickest of updates there um uh they had a two-day session in front of the chief judge in equity um in the NSW supreme court uh there so uh look i’ve heard various things and uh you know apparently it was a apparently it was sensational so uh watch this space um AFSL we’re going to touch on that now we’re actually uh i’m living out in Orange, NSW. i think i’ve mentioned that a number of times and loving it out here it’s been very cold um and for those that are interested i do have a heritage blog that you can um that you can uh have a look at so i think you i’ll make sure i throw in a link uh down below um on youtube uh it’s called the snowgum’s heritage blog https://www.snowgumsretreat.com/category/snowgums-blog

or something so uh maybe you just type in mark smith snow gums or something and uh and a podcast so it’s a video podcast series and uh what’s been going on anyway um look we we’re under our ifs we’re actually very seriously uh going to put up a uh a hospitality fund uh it’s uh it’s going to be extremely low risk uh real estate based we’ve got some well it won’t just be uh hospitality i suspect but anyway we’ve um expressed a few interest bits of interest in a couple of uh projects uh here in orange and um look there’s no there’s no tourism just at the moment and uh like none uh obviously because of code but there are i’m convinced absolutely wonderful opportunities uh we ran on airbnb here at um uh snow guns and uh for those that are interested uh send me a message uh instant message chat tool uh bottom right hand corner um uh dc partners dot solutions slash snow gums there you go i’ll make sure that there’s a page up and you can uh you know you can park some dollars now you have to be a sophisticated or wholesale investor um to participate so it’s not open to retail mum and dads but um uh and look honestly the returns are probably going to be fairly low this is very low risk but there may well be some good capital returns and uh some capital uh some capital growth oranges for those that well i’ll make sure that we put up a whole bunch of links but uh unsurprisingly uh regional australia is apparently booming uh so um uh the demand to get out of sydney and melbourne and brisbane uh is is gigantic so i’ll make sure i put in every link i can think of if you want to see a copy of our information memorandum www.dcpartners.solutions/snowgums

and uh we’ll make sure that you can see that so all right and moving along uh we now move on to one of our very favorite rs and that’s ralph ralph paligaru but not to be outdone uh john mahony, mohan kumar um and chhota rajan now chhota rajan is uh ralph’s best buddy um ralph will go to uh ralph will get in the trenches for uh his those he loves and uh boy does he love this mohan kumar bloke so ralph paligaru he holds a power of attorney for mohan kumar but who’s mohan kumar you might ask well mohan kumar was a bloke that entrusted ralph with his fortune known as 632 old northern road at dural and uh mohan kumar’s lawyer was none other than uh the illustrious uh and most experienced uh john mahony from mahony lawyer uh or is it mahony lawyers um and anyway uh mr um mr mohan kumar hopped on a plane at um in october 2015 and uh landed in um denpasar in bali and waiting there was interpol upon arrival and uh he was uh subsequently extradited off to india um and apparently uh apparently according to interpol uh mohan kumar is uh is in fact a guy called chhota rajan well um so that’s a bit of excitement for you uh not every day you uh you you get to talk about fugitives and ralph is besties with a fugitive and um well chhota rajan made all sorts of news uh in a few months ago he um after episode 6 i think it was uh he caught covered which is a real problem because um uh you know if you’re uh if you’re dead um ralph paligaru can’t be your power of attorney and uh who knows whether mohan kumar has a has a will i mean who knows so mohan kumar is um allegedly chhota rajan i don’t know i’ve never met i can i’ve met uh john mahony i have met ralph paligaru i’ve never been to india i don’t know i’ve never talked to mohan kumar i have no idea if mohan kumar is chhota rajan but interpol people think so and um well uh chhota rajan was um diagnosed with covid19 when all the india problems were you know the thick of things so i imagine poor old ralph had a few sleepless nights because uh with the assistance of john mahony uh john francis mahony of uh uh mahony law or mahony law ralph paligaru is in um the supreme court of new south wales running a court case saying that um uh mohan kumar has been cheated out of millions and millions of dollars now i don’t know whether the um john mahony is you know as a super experienced uh lawyer and i’m sure he’s completely on top of the felons civil procedure uh civil proceedings act uh and the civil proceedings act says well you know if you’ve been convicted of a crime oh now chhota rajan now this could all be a terrible uh case of mistaken identity but uh mohan kumar is being held under the name of who’s not chhota rajan but we’ll just call him chhota rajan that’s um ralph c mohan’s power of attorney he’s being held in a uh the biggest prison in um uh in india apparently with all the uh the top fugitives and um uh

that that does not stop john mahony and um ralph paligaru seeking justice justice for mohan kumar and they’ve uh they’ve decided uh to sue the torrens assurance fund ralph paligaru gave away the title deeds to 632 old northern road to our great mate craig adams craig matthew adams of golden arrow and bargo developments not to forget that he borrowed personally i was at about 1.6 million dollars from australasian property group but anyway ralph gave away just handed on a platter uh the title deeds to 632 old northern road to his great mate craig matthew adams now it’s unsurprising that he would do this because uh craig matthew adams yeah well craig matthew adams and uh ralph paligaru have a very secret side deal uh where ralph gets a 20 interest in a private hospital not bad not bad so um uh ralph also um i can’t neglect to to mention real estate agents jon brookes from brookes partners um now uh jon brookes from brookes partners is an old buddy of ralph’s and so ralph uh gives the listing he’s a power of attorney he has the entitlement to uh uh enter a listing agreement but he enters a listing agreement ralph does where ralph gets a kickback uh is it um look i i i’ve gone vague on the um on the details but uh it’s uh it’s a property that’s sold uh for allegedly 5.5 million dollars in um in may of 2016. and uh ralph hands over the title deeds to his great mate um and uh 80 confidential joint venture partner um craig matthew adams uh and in return um uh he expects a kickback from uh brooke’s partners um now he doesn’t get one but he expects one and uh ralph even asked me to go and sue um he gave me the the debt and said go off and sue if you wouldn’t mind go off and sue jon brooks from brookes partners and so anyway it’s a long story um ralph’s not a uh not a real estate agent but uh he’s a businessman uh according to his um affidavits ralph is a businessman and ralph’s the type of businessman that uh can turn six million dollars into well five and a half million dollars into uh 1.5 million dollars he’s that type of businessman uh not to forget the dreketi timber mill in fiji.
uh which is uh defunct now and um anyway um all of this apparently uh entitles i’d have to i’m not a lawyer so um or not yet anyway i’m a graduate with a um a juris doctor and i’m studying uh um practical legal training sorry i’ve gone blank there so i’m not john mahony i don’t have his wisdom and uh i don’t know how uh that’s all the fault of the torrens insurance fund handing craig adams the title deeds and handing him um uh withdrawals of caveat and all the rest but anyway apparently that is the um that is the fault of the torrens assurance fund and so uh a fugitive uh apparently uh called mohan

kumar ought to receive millions and millions and millions of dollars from the torrens assurance fund well not to be outdone ralph and amreeta paligaru have also got their hands out and they’re seeking um uh i don’t know hundreds of thousands of millions of dollars i suppose for themselves so uh that’s what ralph’s been up to um now he’s defunct company uh called dural alliances pty ltd (in liquidation). uh you may remember ralph put up his um family home uh and borrowed money $540,000 uh at 6% interest a month uh it’s really exciting uh to do that it’s thrilling and hair raising and all the rest uh and then just to add to the um uh excitement uh well why wouldn’t you give that $540,000 to craig matthew adams because um australasian property group apg that’s uh maya and ian jordan that’s their company from singapore well they’ve given um craig matthew adams at 1.6 million or maybe it’s 1.5 million as a personal loan, unsecured. i mean wow um so anyway that turns into that turns magically now they didn’t have john mahony as a lawyer they had the wonderful uh excellent multinational law firm called baker mckenzie and now i’m certainly not saying that john mahony is in the same class as baker mckenzie but anyway maybe they’re who knows anyway well bargo uh bargo uh got wound up as did golden arrow so unfortunately um ralph’s $540000 he’s gone but the 6% interest a month bill that’s still there and uh so that’s that’s when we come to the bankruptcy update a little bit further down below but anyway um so uh golden arrow and bargo are in liquidation and uh i’ll make sure we publish uh i’ll give you a look at the uh the the documents uh there was a wonderful creditors meeting i went to uh a couple of weeks ago in um my telephone uh that’s what you do in the Covid19 era and um well uh the liquidator of golden arrow & bargo has a giant fat uh pile of money now to go litigation funding and to get back uh ralph’s $540,000  except uh you know that went to apg and apg uh as i said they didn’t have john mahony as a lawyer they had uh baker mckenzie and they were able to turn a private loan into a secured interest for no consideration in a wonderful piece of land in warriewood and they happened to jump the queue uh in front of poor old ralph and only to the tune of $540,000 uh and uh they also got they jumped the queue and i think they walked out with $700,000 for of bargo’s money for no consideration how how wonderful is that so that’s what you get with baker mckenzie i mean they are geniuses um so uh apg uh is that’s australian property group ian jordan and maya i cannot pronounce her surname but uh wonderful lady i’ve met them both i’ve sat in their board room in singapore and uh they are high flyers in fact merrill lynch or kkr or one of those mobs are their investors and these guys are very bright and haven’t they got wonderful lawyers so uh heading off to drake timbermill now um i don’t know how uh ralph’s i can’t give you any updates because of covid it’s just been terrible but um uh dreketi timber mill uh had the unfortunate um adventure event of a cyclone smashing it to bits and i don’t know whether uh there was any sleepless nights for ian jordan because he and jordan uh from australasian property group the same bloke that uh loaned uh craig matthew adams was at 1.5 or 1.6 million dollars unsecured and then turned that into a security interest in mohan kumar’s uh i mean this is the most incestuous … you know in crazy story but anyway it gets even crazier ralph uh and ian jordan head off to fiji and go and start a company um and uh so ian jordan (an aussie)
from singapore decides to go to fiji because he’s always wanted to uh and started going to business with ralph and i’m sure that it had absolutely no nothing to do with the $700,000 that apg walked out for um of bargo’s money that once upon a time once upon a time was uh part of mohan kumar’s fortune well you know it’s a very sad and tragic story well maybe uh now once the lockdown’s over ralph has um it’s today’s friday the 13th friday the 13th of august will ralph has been repatriated back to australia apparently ?

i’m not in sydney i haven’t been able to catch up with my great mate ralph but maybe ralph and ian jordan can um can talk about their joint venture business in fiji uh how things are going and ralph may be able to commiserate with apg about uh having to face the having to hand back the 1.6 million or 1.5 million of uh preference monies uh allegedly that they’ve got uh from craig matthew adams and bargo and golden arrow so uh it’s all very very exciting. uh bankruptcy update now i can’t say too much uh because this is before the courts but uh maybe i can just say as a matter of fact um ralph uh ralph has signed a uh consent judgment so he uh consented to the to the entry of a judgment uh in the event he didn’t pay back money and uh surprise surprise ralph didn’t pay back money so anyway he he borrowed a whole heap of money from uh reliance leasing who have a wonderful director a man called garry steinberg who um garry has been very near to my heart in um in past years and uh what could i say ralph has known garry longer than me so that is a fact and so look maybe in the next episode we’ll we’ll talk about some of the past tricks oh well just what i can say about the bankruptcy it’s been held up so ralph borrowed a whole bunch of money from reliance leasing and gary steinberg in august well now it goes back to like 2012 or 2011 or sometime then it was … is that a decade ago??? i mean anyway um so come august 2016 gets rolled over correction ralph and the amreeta and they come ah i guess their company uh i think so i think the company is called ralph paligaru proprietary limited or something like that and uh and there’s another r and uh ralph ran a photocopying business and uh so ralph was really good at um

imaging. let’s just put it that way ralph was very good at imaging. and um well we might have to wait until episode 8 to find out some of the details. coming back to the bankruptcy update um as i said uh ralph and garry steinberg have known each other for longer than i have. okay so um i met ralph in march of 2017. i met garry uh i guess in probably 2014 and uh well thereabouts maybe 13 14 15. sometime there so let’s say four days i’d say it was 14. and um well for longer than that um uh ralph paligaru proprietary limited owed reliance leasing money so i imagine this is sort of ticking up interest and all the rest and anyway 2016 uh ralph gets a wonderful deal, miraculously.
around the same time ralph gets a wonderful interest-free loan i know all these details because they’ve been part of particulars that have been read in open court ralph can say interest-free loan in excess of $100,000 from 2016 and uh it’s interest-free for one year provided that you pay the money back okay so uh otherwise it becomes an 18 per annum loan well it’s now the 13th of august 2021. how much do you think ralph has paid back ralph hasn’t made?

there’s been some court ordered payments but ralph hasn’t made a single single monthly installment

and of course uh his wonderful lawyer mr mahony make has this incredible vanishing uh caveat trick so again i’m not a lawyer i haven’t been a lawyer for 40 years like john mahony, but john no doubt can explain that? and anyway let’s let’s catch up on this in episode 8 because it’s it’s a wonderful wonderful story but just to wet the appetite look i might pop up the um the judgment? and you can do some reading ahead if you like if you’re that keen so that’s it for uh episode series 1 season 1 episode 7 of the many r’s podcast.
um i hope you’ve had an excellent time if you’ve got any questions or you’ve got any information uh you’ve been to tihar jail you’ve heard of mohan kumar, you’re a fan of oh they’re making a movie they’re making a movie on chhota rajan apparently? so uh it’s some sort of uh underbelly series of you know fugitives in india so that’s all very exciting. if you know craig matthew adams if you know Dreketi timbermill? maybe maybe you’re one of the uh creditors of the dreketi timber mill maybe you shared some time with ralph in uh in iso in um what’s it called quarantine in hotel quarantine? uh does ralph owe you money? um and uh so ralph’s ralph’s milking the system uh brilliantly and uh and so managing to avoid uh bankruptcy for the time being so let’s let’s watch this space and let’s see uh we’ll learn in episode 8 about some of the tricks uh that maybe he got up to uh maybe you know a copy world at uh in um wherever it was seven hills (a suburb of sydney) i think it was uh maybe uh we’ll learn a little bit about that so thanks for tuning in and we’ll talk to you next time on the many r’s podcast. if you’ve got any questions as i said give us a call 1300 32713 or go to our uh bottom right hand corner instant message uh us or instant chat with us on www.dcpartners.solutions/podcast thank you

Many R’s Podcast – S1E6

Podcast Mark Smith

Many R’s Podcast – S01E06 for more information and indepth villain profiles – visit our webpage

https://www.dcpartners.solutions/products-services/blog/podcast/

To share this video: https://youtu.be/t3SAWQaqWks

In this series Mark Smith of DC Partners (Solutions) Pty Ltd sets the scene and discusses those villains or possible villains that we’ll be discussing throughout the remainder of Season 1 and subsequent seasons.

Season 1, Episode 6 will focus on:

00:00 – Start, opening music 00:14 – Intro from Mark Smith

00:27 – contact details

00:37 – Personal chat with Mark Smith, what Mark Smith’s been up to and what’s been happening with the Many R’s Podcast

01:00 – Reflections on the Covid World and opportunities

01:25 – End of Law Degree studies and personal reflections

03:36 – outline of show contents

03:45 – more on show contents

03:57 – Bunnings Gift Cards

04:08 – Matthew James Taunton – MBO Estates / Abel Agencies Box Hill

04:20 – Hakan Kutup

04:22 – Mahony Law / John Mahony & Law Cover plus Ralph Paligaru and Amreeta Paligaru

04:40 – Mohan Kumar

04:45 – Philip Beazley, Greg Walker, Karen Vee Walker

05:00 – Automotive sector

05:43 – Franchising

05:58 – Receivers

06:06 – Caernarvon Cherry, Bonny Glen Fruits, Fiona & Bernard Hall of Biteriot Operations

06:16 – DCP Capital

06:26 – DCP Capital – tax debt lending

06:36 – Corporations Law and Company insolvency lending

07:36 – Lightspeed Mortgage Management

08:24 – Sydney & Orange offices

08:44 – DCP Capital – Orange Development fund and forthcoming information memorandum

09:04 – Look ahead to S1E7.

10:24 – Credits

To share this video: https://youtu.be/t3SAWQaqWks

In this series Mark Smith of DC Partners (Solutions) Pty Ltd sets the scene and discusses those villains or possible villains that we’ll be discussing throughout the remainder of the Season and subsequent seasons.

Season 1 will focus on:

Real estate – including agents and developers. Miscellaneous other bad players in society Corporate Villains Travel rip-offs Government / malfeasance Iffy lawyers / shyster Insurance racketeer / Banks Receivers, Liquidators and Administrators

#5r #5rpodcast #marksmith #manyrspodcast #ManyRs

Transcript:

S01E06 podcast – transcript

season 1 episode 6 of the many R’s podcast welcome back it is uh wednesday the 16th of june 2021, my sister’s birthday, and i’m in uh freezing cold orange right at the moment but uh i’m as happy as larry and i look forward to telling you about that right now got any questions give us a call 1-300-327-123 or go to our website uh bottom right-hand corner uh dc partners dot solutions and uh click on the uh instant chat message thank you what a rusty introduction i’m very very sorry um it’s been a long time now i have been i’ve had probably the busiest uh few months in my life and today is wednesday the 16th of june  2021.

uh it is uh the afternoon i’m in orange at our new house actually believe it or not um we uh we’re we’re covid uh uh were covid safe out here and um look this covid thing has been wonderful and in lots of ways um and it’s it’s meant it’s freed up all sorts of reasons why uh you don’t need to be in sydney you don’t need to be in a capital city uh with the online world so here we are um at orange uh in my new studio and um my new home office and in studio and i’m looking out there’s snow out the window uh it’s it’s melted but uh it was snowing here uh several days ago and our property’s actually called snowgums so it’s been absolutely wonderful and why is it being wonderful well two days ago um one of the biggest events in my life uh came one of one of the biggest chapters in my life actually came to an end i’ve been studying a thing called a juris doctor which is a postgraduate law degree uh it’s a masters uh 24 um subjects um i’m a busy boy uh you know i’ve got an mba i’ve got uh businesses and uh been running litigation funding uh for a range of different people um and uh i’m a busy busy boy and i started in i think it was like the 17th of february 2014. i’m extremely privileged, i’m definitely white i’m middle-aged i’m male and i’ve been on a commonwealth supported place since um which is a which is a code for a subsidised law degree at THE best university well arguably the best university in australia and it has been a sensational sensational ride and i’m just so privileged and i know i’m privileged so um and apart from being white male and middle-aged and all that, we’re in a great part of the world and you know i’m just bubbling and enthusing with um happiness i uh i felt a huge relief um at the end of my studies and uh i was writing a 4000 word uh essay on the inviolability of the person uh which is very interesting and i’m happy to you know share with anyone or talk about it 1-300-327-123 i just couldn’t be happier so um i’ve got uh well we’ve got a very interesting program it’s just like a bit of a catch-up program and we’re not going to do our next episode until well we’re still in sydney so we’re partly in sydney and we’re partly in orange and um uh well it’s out of orange there you go but um uh we’re we’re on mount canobolas to be precise so uh have a look biggest mountain between sydney and uh perth it’s about 1 300m, we’re about one thousand meters above the sea level 1,004m there you go 1004m above sea level so that’s like Katoomba and it is just a sensational beautiful place and um we’re coming here on you know at the end of june 2021 we’re moving we’re um we’re keeping a base in sydney and uh we’re gonna spend a lot of time up here and there’s so many uh sort of interesting work options out here and uh look we’ll talk about some of those throughout the program so um this particular episode i hope you enjoyed it’s a bit different uh it’s been a while and i apologize i have i am a bit rusty uh but um let’s see how we go so what are we gonna talk about today well we’ve got some we’ve got some new villains um to talk about we’ve got some old villains who are coming back and uh let’s um well there’s the phone okay well we’ll cut a break there. okay well on the show today uh we’re going to i mentioned we’ve got some old and some new villains sorry there’s the camera we’ve got some old and some new villains so um

well this is going to surprise you, bunnings i’ve uh i’ll just run through the topics and then we’ll we’ll do a more detailed dive into them so bunnings and their gift cards this is uh property in the property area we’re going to catch up on a new villain we’ve got a new mate called matthew james taunton from um his business was called mbo estates um uh it’s now known as Abel Agency uh they’re out at the box hill in in sydney we’re going to catch up on hakan qatar got some news there uh Mahony law and john mahony and lore cover we’re going to talk on about them we’re going to catch up on the latest on ralph paligaru we’re not going to go too much into that because we’ll just give a general update we’re not going to talk about specific cases and we’re certainly not going to prejudice any cases but we’ll just have a quick update on the comings and goings of ralph paligaru um and Amreeta um um. Mohan Kumar. we’ll touch on him. philip beazley now he’s a lawyer john mahony is a lawyer as well but we’ve got phillip beazley who’s a lawyer for ah greg walker, so just very quickly we’re not going to slander anyone here but we’re going to quickly catch up on gregory uh john walker and karen v walker um. we’ve got an automotive um page a very good friend of mine is uh in the automotive business and um the automotive money lending business to be precise and uh some of you may know, i ruffled some feathers uh i um uh i wrote something and uh anyway i’ve got a tiny reaction so but uh look there’s there’s definitely smoke when you when you see smoke well there’s some often fire well there’s a lot of smoke here so uh we’re going to we’ll touch on about our website as well we’re doing some major revamp this is the benefit of finishing my law degree we’ll get heaps of time now so we can um uh sort of spend time getting some of these things right so yes there’s a motor dealers and an automotive page so we’re we’re very interested in shonky’s um in that uh in that line of business um. franchising um this is this is really uh what my uh my letter sort of touched a raw nerve wow. um okay but uh well we’re specifically talking about some changes to the franchise codes um i’ll give you links um in a moment uh we’ll very briefly touch on receivers um well liquidators and receivers are very quickly there we’ve got a little bit of news on our on our on our dear friends from Caernarvon Cherry and Bonny glen bernard and fiona hall um and uh. in the money business well we’re actually uh we’ve been doing some litigation funding for quite some time and so we are very very interested in the money space and uh our website you’ll see that um especially we’re certainly going to do something last year on tax debt lending um but uh watch this space because um we are very interested in in that and uh having just completed my law degree i did a lot of stuff on corporations law and um so the the tax debt uh lending is is more for company lending so um we’ve got a um we’ve got a business called dcp capital which we’ll talk about and there’ll be links in our website but uh uh coming out of covid and i’m sorry if that sounded insensitive i said that covid had been great uh it’s obviously been terrible and dreadful but um it’s um it’s changed the world uh there’s no doubt about that and uh coming out of it for better and worse um but uh coming out of it um uh well some some businesses um need help. so um you might wonder why do we do these blogs and um well we’re interested in people and we’re interested in you know people getting a fair crack and all the rest and um there’s many many businesses that um it’s now the 16th of june 2021.

i have no doubt that there’ll be a lot of activity with um our friends at the tax office and uh you know someone’s going to pay for the um you know the virus and uh generally that’s going to be done through the tax system in some way so we want to help people sort of meet their obligations um and so we’ve got a new product there. but in the money space we’ve got a um a company that has come to our attention called lightspeed lightspeed mortgage management i think they’re called and i’ll put up some links to lightspeed and i stumbled across this particular article i’m going to put a link to it is it’s very interesting i i um a friend of a friend

did some borrowing from well actually didn’t do the borrowing they got offered a loan from light speed but uh there were light speed in sending out the the court papers and uh

i’ll put up we’ll put up some information about these um these documents they’re quite stunning and this is we’ll explain how i speak to business and we’ll put in a link to the particular article that they caught my eye about lightspeed um and as i said we’re doing some work on our website now we are relocating um from sydney (to Orange) but we’re keeping a branch in sydney um and uh and i’ll certainly spend about four days a fortnight in sydney um and so what would that be about seven or eight days uh fortnight in orange and in the regions and getting work done uh so that i can come to sydney and um uh but you know there’s all sorts of opportunities oh sorry and back in orange um uh under our dcp capital arm uh there are some very very very good development opportunities so we’re putting together some funds some of you may know we had a litigation fund uh so we’re putting together some property funds and so there’s some very interesting uh there’s a information memorandum coming out in a few weeks so as i said this bit of a catch-up episode now we’ll get into the bunning situation. well it’s now actually the 2nd of july 2021, and um look for one reason or another we’re going to put all this content into uh episode 7 but uh we’ll just use this episode (episode 6) as a bit of a catch-up and uh i hope you enjoyed it so far um we talked about uh why they’ve been a huge delay for a couple of months between the last episode i think episode 5 we’ve just also published episode 4 um so look uh it’s been a hugely hugely busy time for me uh finishing studies um started in 2014 in february 2014 finishing those studies moving um place and you know in the last couple of days sydney’s gone into the lockdown uh so the timing probably uh really couldn’t be well it’s it’s terrible that the lockdown is very unfortunate but um uh getting out of sydney and at least for uh you know one at least the work part of the time out here in orange is you know a real opportunity so um we thought it was best to just publish the um this particular episode and then we’ll go on to season 1 episode 7 and we’ll talk about the bunning scam the uh catch up on some of our new and um emerging and some of our older villains uh which we’ll talk about in you know in much greater detail so uh tune in very very soon we’re going to start recording uh season 1 episode 7 very soon and uh that should hopefully be up in the next few days thanks very much, bye.

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Andrew Gartrell profile

Andrew Borrodell Gartrell

Andrew Borrodell Gartrell, son of the late Mr. Harold Borrodell Gartrell (Borry) formerly of Borrodell Vineyard, Canobolas (near Orange).

Andrew, a former fruit grower from Nashdale and part time author (see his previous work – Dear Fred) is now a property developer near Angeles, Luzon, Philippines. Andrew loves to hang out at Phillies Sports Bar and cheer on the Brisbane Broncos and Queensland Maroons with fellow fans.

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Caernarvon Cherry: Meet the team & fun facts

Meet the team - Caernarvon Cherry & Biteriot
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Many R’s Podcast – S1E3

Podcast Mark Smith

Many R’s Podcast – S01E03 for more information and indepth villain profiles – visit our webpage

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In this series Mark Smith of DC Partners (Solutions) Pty Ltd sets the scene and discusses those villains or possible villains that we’ll be discussing throughout the remainder of Season 1 and subsequent seasons.

Season 1, Episode 3 will focus on:

0:00 Many R’s Podcast S1E3 (Opening)

0:27 Introduction / Review of 2020 / What’s included in S1E3

11:12 Why am I being careful with my language?

13:30 Westpac v Ollis ; Smith v Westpac & NSW Crime Commission, the State of NSW.

1:00:00 DCP Litigation v Saunders & Staniforth – discussions re the Australian Property Institute (API) Professional Sanctions re: Andrew Saunders.

1:11:00 DCP Litigation v Saunders & Staniforth – discussions re the professional indemnity insurance racketeers for Saunders & Staniforth and their lawyers, Colin Biggers & Paisley re: contempt of court, submissions given to Her Honour Strathdee J.

1:23:00 DCP Litigation v Ralph Paligaru – together with discussions regarding the lawyers acting for Ralph Paligaru being John Francis Mahony and Lawcover, his professional indemnity providers.

1:53:50 Ralph Paligaru and his relationship with Mohan Kumar aka Chhota Rajan aka Rajendra Sadashiv Nikalje

1:56:40 Looking after to 2021 – what to expect from the Many R’s Podcast.

2:01:50 What to expect in S1E4 – the episode from Orange … let’s visit from of the villains of Orange – Caernarvon Cherry Pty Ltd, Biteriot Operations Pty Ltd, Biteriot employees, Westpac Orange, Centrelink Orange, NSW Police, discussing the benefits of Direct Foreign Investment into the rural sector of Australia – purchasing our land and water to supply food and fibre to foreign nations (including China), Saunders & Staniforth, Raine & Horne Orange / Roger Eddy, Rural Water Supply easements and more.

To share this video: https://youtu.be/4jeaLUQUrIQ

In this series Mark Smith of DC Partners (Solutions) Pty Ltd sets the scene and discusses those villains or possible villains that we’ll be discussing throughout the remainder of the Season and subsequent seasons.

Season 1 will focus on:

Real estate – including agents and developers. Miscellaneous other bad players in society Corporate Villains Travel rip-offs Government / malfeasance Iffy lawyers / shyster Insurance racketeer / Banks Receivers, Liquidators and Administrators

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Transcript:

S1E3 podcast – transcript

rogues rascals reviewables rorts rip-offs receivers real estate agents and much much more. the many rs podcast, season one, episode three, my name is mark smith call us anytime 1300 327123 or alternatively go and visit us at our website dcpartners.solutions/podcast …use the instant message chats in the bottom right hand corner to message us in real time thanks

welcome to season 1, episode 3. firstly our apologies it’s been a bit of a delay between episode 2 and episode 3 but here we are and we’re at the end of a huge huge year and we’ve now, after 3 episodes, we’ve changed our name from the 5 r’s podcast to the many r’s podcast. we’re going to deal with all sorts of r’s – the rogues the rascals the reviewables the rip-offs the rorts, the receivers real estates um real estate real estate racketeers, racketeers in general and all sorts of agents, developers and anyone that’s iffy, shysters – you name it uh we’re into it so that’s the many r’s podcast can have uh can start with R or not, start with r, whatever you like we’ll just deal with anyone hey – we’re obviously going to touch on corporate villains our miscellaneous shysters travel rip-offs they’re becoming less and less so but let’s see what happens in the in the coming year government malfeasance now we have a massive massive story and i’m gonna predict it’s gonna take all of season 2 or call it 2021 it’s going to consume all of 2021 and this involves westpac bank and the state of new south wales, the new south wales crime commission and to a much much lesser extent virtually hardly at all but there is a little bit of an element of NSW police now NSW police and i’ve got to say they come out in my view with the flying colours but westpac and the NSW crime commission um you’re going to get it for all of uh for all of 2021 we’ve got so much stuff and a few of the lawyers some of the westpac lawyers, and some of the internal westpac lawyers, i i’ve been sitting here for more than 10 years assembling the story i’ve got well over five six thousand pages i’ve got 40 volumes of documents over my shoulder and we are absolutely going to unload on westpac bank and look heads will roll um heads ought to roll and uh so there’s that

uh insurance brackets um i think uh i think we’re going to see more insurance rackets and i look forward to spending the entire 2021 talking about um racketeering lawyers where um and look i’m gonna say sorry racketeering lawyers pardon me racketeering insurance companies and uh look i think these guys are under massive massive pressure uh they lost 5-0 a case on business interruption insurance in the new south wales court of appeal i saw a story just last night on the ABC 730 report. hey we’ve been talking about this for months and uh even episode 1 i told you this was going to be a massive massive thing and uh the mainstream media is now caught on ABC’s 730 reports uh talking about it uh there’s been this test case and so that’s a bit of a recap uh for this year now.

well that’s a little bit of a recap anyway about the many r’s podcast um in this particular episode, episode 3 we as i said we’re going to review the year and some of the uh highlights and lowlights um i will say uh i apologize again for the gap between episode 2 and episode 3 um personally it’s been 2020 has obviously been a hell of a year for a lot of people and uh i’m putting uh the finishing touches on my what’s called Juris Doctor – it’s a it’s a law degree that i’ve been doing and i started it in 2014 uh i finished the 23rd subject uh a couple of weeks ago and um i’ve got 1 subject to do and boy have i got some reading – i’ll just i’ll just show you but this is how much reading i’ve got to do in the in the coming months so i’ve got one subject so my apologies for the delay between episodes um let’s talk about what we’re going to talk about in episode 3 in particular and this is a case uh well we’re talking about the westpac case uh westpac and victor warren ollis now i’ll talk about it in more detail but it’s not really about victor warren ollis – this is about westpac bank and what thieving bastards that they they are and i’m going to give you a list of everyone that they hurt like there’s

it is stunning how many people that they’ve hurt they’ve certainly hurt me and um but i’m going to give you a list of all the people that they hurt i’m going i’ve got a truckload, not quite a truckload, but i’ve certainly got five or six thousand pages of documents i’ve got 40 volumes just over my shoulder and i’ve we’ve already started building the web page um on dcpartners.solutions/podcast and actually there you go dcpartners.solutions/westpac – it’s not up there live yet but it’s coming so dcpartners.solutions/westpac and uh this is uh this is really a story about westpac and how they used the new south wales crime commission and how the new south wales crime commission allowed themselves to be used and their powers and used and abused.

so um in this episode not quite as big as story as the westpac thing but saunders & staniforth – we’ve been writing about them on our website and in in our blogs at dcpartners.solutions and uh this is uh quite outrageous

this particular company’s uh caused losses for a much smaller group and but we’ll talk about that in quite a bit more detail

we’re going to have a quick recap on um what i think are huge stories but um our business interruption we’re going to talk about that in a little bit more detail in a very short segment

um i think our i want to reflect a little bit on australia’s relationship with china and we’re also going to talk about uh what that means for the future especially our trading relationship it’s um it’s been it’s a real issue and um i did touch on this in episode 1 we talked about foreign money launderers

now i wasn’t talking about any particular one country but um we’ll we’ll touch on that later in this episode

uh some of my favorite r’s – ralph there you go ralph ralph paligaru – ralph it starts with R um

ralph’s lawyer well i’ll come to him in a second

so uh we’ve got a segment on ralph uh mohan kumar now rajan there you go chhota rajan uh i hope i pronounced that correctly another uh chhota rajan who is not his real name um but we’ll put up his real name … Rajendra Sadashiv Nikalje …. uh he had a uh and lived here in australia uh just a few suburbs away actually and on the whole like remarkably this mr mohan kumar was extremely well behaved well whilst he was here in australia

now what he did overseas and uh by remote control, i never met the guy i don’t know him um i know it’s reported and so we’ll talk about that this is a gigantic story uh i’m probably going to get sued i’ve been receiving very threatening letters and i’m going to publish a lot of them these letters were written by ralph paligaru’s lawyer a man called john francis mahony ah

now Read

i’m going to publish a affidavit which has been Read

there’s an R for you um

this there is a cross claim sorry there was a cross claim and we had an um an affidavit my i swore absolutely true uh there’s another affidavit i think at the time this was in about about 12 months ago they were sworn about november 2019 and read in court uh very very much about 12 about 20 53 weeks ago maybe 54 weeks ago just a little bit over one year ago and uh we sought to um bring a claim against john francis mahony and lawcover and so uh mr mahony if you’re reading this sorry if you’re listening or reading whatever i don’t care um we’re going to publish everything that you’ve sent us um provided it’s on the record uh it’s for the record so we’ve got a lot to do there

um a hugely satisfying thing for me in 2020 was uh seeing mr hakan kutup go to jail uh i reported him and i’ll provide a copy of um the statement that i gave to police and uh within one or two weeks he was locked up um well and he got bail

so fair enough but uh he’s now uh yeah i think he did plead guilty i certainly found guilty and uh he’s locked up and not sure where he is so uh

we’re also going to touch on our AFSL … not our AFSL but uh the busifund capital trust uh which i happen to own an interest in and uh it is a corporate authorized representative for a company that does have an AFSL and so we’re creating financial products and we’re going to talk a little bit about that and what’s to come in next year

okay before i get into

okay before i get into the um the real meat of uh today’s podcast um

you’ll see me uh throughout today’s podcast uh maybe stopping and pausing and uh thinking or reflecting before i open my mouth on occasion uh we’re now called the many R’s podcast because um uh for a number of reasons including we’ve had a quite a few upset reactions from um uh some of the uh parties um the subject of this uh this podcast so … we’re now not just into rorts and ripoffs and rascals and rogues uh but anything you like beginning with R or not beginning with R or whatever you like so um it’s the uh it’s you call it the many R’s but whatever um

we’ve upset some people and uh and uh your host is uh obviously uh um treading on some toes here and uh there may well be um a few defamation suits coming? so uh the truth is an absolute defense um to uh to defamation

so for instance, one of the people today that we’re going to be talking about uh his friends his boss well his boss is someone that’s allegedly killed 20 people um or more um we don’t know uh but uh his boss is uh sitting a jail cell in delhi, chhota rajan (real name is Rajendra Sadashiv Nikalje) somewhere and so if we simply say well x is uh friends with y and y is a criminal and um well in this case x is actually x holds a power of attorney over y so um uh it is in fact the truth uh and uh you know if if there’s a public interest element and all the rest well that’s that’s the case so my apologies if i’m a little bit slow and if i stop to reflect at times because um we’re gonna

okay so now we’re talking about westpac this is a uh a painful episode uh personally uh it cost me an absolute fortune and i didn’t even bank with westpac so it was something that i found absolutely astonishing and to be honest um

westpac they just blatantly hid um various things and submissions were given to the court now i don’t blame the lawyers uh i blame the people that instructed the lawyers and um so there is just so much here but um look the gist of it is that uh mr ollis had a westpac bank account ahh he had a series of bank accounts and we’ll um we’ve got his bank statements uh i have um 40 volumes of stuff on these shelves so uh we’ll go through them well i’ve got probably thousands of pages of bank statements uh for all of mr ollis’ bank accounts with westpac and um ollis had one a couple of particular accounts and um he would write a cheque and money would just magically appear in his account and um

one of the documents that you’re going to see uh quotes mr ollis is saying uh he wouldn’t uh uh

was the effect of not looking a gift horse in the mouth so um anyway uh i’m sure it wasn’t free money but um it’s the the gist is that ollis had this account and he uh would write a check and westpac money it was a westpac account and westpac money would would appear

sometime very shortly thereafter has cleared funds and um that’s probably not so unusual except um westpac put on uh evidence at the bank that no per… no the exact words were that no individual in the bank knew well i took uh the commissioner of new south wales commissioner of police and they’re very good i’ve got to give praise to everything i’ve seen about new south wales police is uh

legit completely absolutely completely legit everything everything everything that i saw and i talked to uh for years i talked to um many many people and i’ve got nothing negatives to say about new south wales police so much so i took um the commissioner to to i made what’s called what’s commonly referred to as freedom of information but it’s actually called government information public access and i took the commissioner of police to uh to call it to um you know to get access to documents and ultimately i did get access to um something like 3 000 pages of of documents and it was right on christmas eve um so happy christmas thank you very much uh new south wales police so um so just a tiny little bit further explaining why this is all a problem and why it’s important that westpac’s

been fully frank with the court

it’s a cardinal cardinal rule of equity and the rules of equity and the courts of equity if you come to equity you have to have clean hands so

if you come to equity you need to have fessed up to anything now even if you’ve got dirty hands your hands can be made clean but only if you fess up westpac went to the new south wales supreme court this is not something westpac a banker has dreamed up this is something that some lawyer i’m certainly not accusing i’m certainly not accusing Philip Crawford i’m certainly not accusing James Stephenson they might westpac has floors of lawyers so some lawyer somewhere has dreamed up this

very complex

cause of action saying uh we’re actually the victim we’re the victim of uh mr ollis’ over drawings and because we’re the victim that we paid this money under a mistake so they’re saying uh this guy plundered them and no one individual in the bank knew so we’re going to pull that apart exactly is that true that’s what the case is about because if they don’t come to equity with claim if they come to equity with unclean hands then the orders that they got can maybe be uh set aside um you ha you must come to equity with clean hands and westpac um it was certainly their case that quote unquote precisely and i’ll put up the judgment his honor justice einstein einstein einstein one of the key facts that he found he was satisfied and he talks about he he goes back and reviews the evidence of a particular person now that

he satisfied that that person

had no knowledge and that may be completely true but westpac’s that of that particular witness that einstein was satisfied that that person

uh and his team

had no knowledge that ollis was writing out cheques but the submission that’s the the submission signed or authored by james stephenson and he doesn’t dream this up he must have been instructed and he must have been provided the evidence now whether he’s provided all the evidence and then this is what i’m saying i don’t blame james stephenson at all i’m saying james stephenson um senior council uh i’ve never met him but uh i know he’s not going to get up on his feet and or he’s not going to put pen to paper and then uh mark smith can come along ten years later and say fraud james stephenson i’m i’m saying his instructions were that no individual in the bank knew and i’m saying i’m not saying the name of the person the the the lawyer but a lawyer has dreamed this up that oh yes we’ve got unclean hands yeah we knew yeah absolutely we knew we knew in june uh or maybe july 2005 but i’m going from the top of my head here but they certainly knew in either june or july 2005 that there was a bug and at that point uh ollis wrote cheques totalling 11 million dollars but at that point i think from memory he’d only written cheques to the tune of about 50 000 and why it’s a problem is if you come to equity and you say your honour, this guy we paid out under a mistake this guy plundered us and we did not know now the the whole um thrust of this mistake thing is uh they were mistaken and in other words NOT grossly grossly negligent now that’s what i’m saying west bank was they were actually um grossly grossly negligent and um someone figured out that and i’m not accusing anyone and i’m certainly not accusing james stephenson of figuring out and saying well we need to concoct that’s it we need to concoct or just …  um i’m not accusing anyone of concocting especially not james stephenson uh of concocting this story but some lawyer somewhere on some floor probably in martin place at westpac’s offices there were at 60 martin place or someone close by

possibly someone at henry davis york there’s many smart people in there um someone has concocted this story um we are grossly negligent in other words westpac westpac was grossly negligent uh people like um garry wade trevor mcmahon and uh mark murphy must look if mark smith can find it the police never charged them police never ever ever ever charged with uh victor ollis with any crime no fraud no uh fraudulent misappropriation no misappropriation no larceny no no anything ollis was never and ollis committed no crime yet westpac

westpac’s cause of action was we

were the victim of a mistake uh under a mistake we paid out money and your honor no individual that’s that was what the uh submissions state no individual in the bank knew that this was occurring and i’m saying i’m saying james stephenson did not know he wasn’t told the full story and certainly justice einstein we was not told the full story if james stephenson i’ve never met him as i said but i know that he would not put those he would not commit those words to his submissions if he knew it to be untrue if he knew that there was a single individual in the bank

who was aware

of the drawings and i’m saying categorically i can give you the staff number there’s multiple people i’ve got the dates i’ve got the time down to the second where um i’ve got westpac’s internal logs and all of them every single thing is going up onto my website every key document and if it takes us all of season 1, 2, 3, 4 i don’t care it’s all going up uh unless we sell our manuscript in the meantime and then um it’s up to whoever buys the manuscript what they want to do with it but this is an absolute scandal the scandal is westpac gave false evidence westpac are liars westpac, westpac not ollis, westpac are the crooks!!!

i won’t go through uh i won’t go through every person that we’re going to talk about but like i’m just looking at my screen here this probably in westpac probably sorry westpac the new south wales crime commission and we will talk about westpac’s lawyers um now again i blame those people that were giving the instructions not so much the lawyers but um there are some police documents that i will uh i’ll just publish and you can figure out them out for yourself uh there’s one that particularly comes to mind that um

they’re minutes from a meeting uh from memory it was about august or september 2006 and um the police minutes uh record those that were in attendance now it’s a little frustrating but sometimes uh well

whilst i did get access to new south wales police documents and i’m very grateful and i’m very happy to share them um there are some redactions and you can’t see precisely everything but i think you’ll get the gist of of what was going on but in one particular place and this is while i’m not blaming lawyers uh one of the handwritten notes which wasn’t redacted says either lawyer or legal so i’m not specifically blaming well i’m not specifically calling out the lawyer

i can’t even name their names and i’m certainly not making an allegation against the lawyers who i who i will mention uh in you know in the next minute or two uh as people that will feature in this blog i’m not making an allegation against those particular lawyers but um

they work for the bank and someone uh the submission that no individual in the bank knew well i’m going to say that’s bullcrap and i’ll give you some staff numbers of those people that did know and look at the end of this process i’m actually going to be asking police and probably the attorney general of new south wales to go and see whether any uh witnesses

uh whether they were

whether there is any crimes committed in the in the witness box and whether um anyone’s guilty of perjury i’m going to say victor ollis didn’t perjure himself he didn’t even take the stance so um the only person that could have given that evidence that no individual in the bank knew was someone for or on behalf of westpac and um whether that person was telling the truth i’m going to say it wasn’t the truth now that person may have believed it was the truth but look someone needs to i’m talking about the attorney general of new south wales and that’s um i’m going to say i’m going to make a bold prediction someone’s going to look at this and look very closely at what was said in the witness box and if a crime’s been committed look i’ll be delighted if that person goes to jail so here are some of the names that are going to feature in documents and i’m not saying these people are guilty of anything i’m just saying that they’re going their details going to feature now adrian holmes he was my lawyer and a wonderful guy and helped me a great deal so andrew purchas these are just purely in alphabetical order so this is not any hit list or or whatever this is uh just purely alphabetical andrew purchas he wrote a letter um you’re going to see a copy of that letter anne hunter she was an accountant now she didn’t work for westpac but we’ll explain who she is chris dibb he’s a barrister um good bloke i met him uh claudine salemah now she worked for the dark side

uh a lawyer that act that appeared for westpac uh whether she knew whether she didn’t know don’t know col dyson now he’s retired policeman um total respect for col dyson uh he saw through the [ __ ] and um he ended the police investigation

col dyson you’re legit

daryl barlow he’s a lawyer that appeared for uh ollis um there’s some affidavits that i’m saying if he swore he believes it’s true um never met him though edward downer now i did meet this guy uh was a lawyer for one of uh one of westpac’s lawyers uh you might know the name downer alexander this guy is a dead ringer for alexander that’s his father so i’m not saying he did anything wrong just saying he did appear frank mazzone uh also from adelaide from memory um gail kelly all i’m saying about gail is i wrote to her and uh whether or not i published that letter i’m not sure but a bloke called gwyn morgan uh replied so i definitely wrote to gail kelly and

terribly frustrating gary pilgrim now probably one of the victims uh of westpac garry wade now this guy

no longer at westpac

now retired um former police officer uh he did contact new south wales police and new south wales police i know told garry wade don’t think there’s a crime um or we can’t there was a request that garry wade wrote and so i’m going to give you about garry wade was an author of a series of documents i’ve got this document like uh sliced they say you look at an arrow and the trajectory of an arrow well i’ve got this still framed for photographs of this particular arrow this letter is the arrow and you can see this um the trajectory of this letter over a period of about six days and even like within in one day you know over several hours i’ve got so many different copies of this particular letter and garry wade is one of the authors um gwyn morgan we talked on uh helen patrice nelson um she she swore evidence uh at a particular point uh she works for westpac uh she’s had two stints there um hussein karimjee a lawyer for an in-house lawyer for um mr victor ollis um pretty pretty nice guy actually hussein karimjee, ian temby now jhe’s a he’s a barrister uh might be senior counsel i think he is and um he’s had uh a fairly distinguished career um and i actually feel some sympathy for ian temby i probably met him and um

i’ve got to say i reckon by the end he must ian temby must have been wondering what precisely is the new south wales crime commission doing here um i don’t i’m not yeah he’s a smart guy and

we’ll see james stephenson again he uh barrister he appeared he was retained by henry davis york and he must be senior counsel i don’t know but we will have a look at

some closing submissions that james stephenson wrote and now james i’m not accusing you of anything

other than writing and handing out those submissions those submissions may well be precisely the instructions of his client and let’s say i believe they were the instructions of his client well those instructions oh sorry the submissions say no individual in the bank knew again i i’m gonna say i feel sorry for uh james stephenson because

what i will show you is that clearly a number of people in the bank had knowledge that cheques were being written large checks like mr ollis was writing our cheques for four hundred thousand dollars unlike they’re they’re being and they’re not bouncing they’re being honored and uh well jennifer thommeny now lovely lovely police officer retired uh she was an inspector and um

i’m gonna say her role was in the asset confiscation unit she’s a wonderful lady really really top lady

she’s been to my home like she is a good lady and honest

she received some of these letters yeah i she certainly had a phone conversation with garry wade and i’m not saying there was anything improper but from jennifer’s side but so we’ll see John Giorgiutti interesting spelling

was on holidays at many of the most relevant times John Giorgiutti was a very senior lawyer at the new south wales prime commission john henry williams uh he’s an expert um forensic accountant maybe forensic accountant certainly accountant i worked for ppb and um we’ll look at that um that guy not suggesting he’s he’s bullshitted not at all um jonathan lee spark now we’re gonna have a look at some affidavits that were sworn by jonathan lee spark he was a an officer at the new south wales crime commission and he’s going to come under our microscope julie hanna uh karen booth kate finnegan lou novakovic um if you google uh lou novakovic uh and police integrity commission uh lou worked for the new south wales crime commission and the police integrity commission you can read the transcripts lou um was in a um senior role at the new south wales crime commission and um well we’ll talk we’ll make sure that there’s a very good profile on lou novakovic and i upload the transcripts and you can read them and these are these are people inside government

you’d be you’d be absolutely nuts if you believe that every single person that worked for the new south wales government was legit

we’ll talk some more about lou uh mark murphy now this is uh this is a guy that has sat in my lounge room uh he came to deliver

a court order and um mark murphy former police officer now we are going to look at mark murphy under the microscope we’re going to look at the arrow the trajectory of it the words that were changed and uh we’re going to pull them we’re going to pull those letters apart and mark murphy mark murphy now works for AMP uh but he has um

he has had some uh roles a former police officer um so i’m going to say he ought to know

as a former police officer and he ought to know quite a lot about investigations well he was the he was certainly a very senior manager in group investigations at westpac and so we’re going to spend a lot of time talking about mark uh and some of the other people uh in his team will look at as well so maryann aspland i don’t know if i’ve pronounced that marianne works in the corrections department or did at westpac at concord west in new south wales and uh i think where marianne may be one of the people that knew certainly she did know uh come january 2006 she had a conversation with garry wade and uh she knew now how much before that and what her staff number is well i don’t know so we’ll get into that michael sullivan a lawyer at westpac milan sankovic a lovely guy sat in my lounge room and accompanied mark murphy probably um

not the author uh well certainly not on paper anyway that that i know of neil sevieri another guy in westpac group investigations nick Kabilafkas um i’ll put up some transcripts of what nick Kabilafkas what his submissions to courts were and uh we’ll see uh noel mccoy another lawyer at henry davis york uh peter flynn dr peter flynn from chatswood victim a victim of westpac bank rob whitfield now there’s several affidavits and i’m just going to say

don’t really want to be sued but rob whitfield uh went and worked in a incr… he was someone that was in line apparently to take over from maybe it was david morgan uh who was the ceo at the time and before gail kelly and then after gail kelly i think he was in the running as well uh i i don’t know who who came after her but um one of the top one two three four however top handful of executives at westpac bank extremely high powered he left the bank and went and worked for uh mike baird you might know that name mike baird was the premier of new south wales at the time not suggesting that mike’s done anything wrong at all i’m just saying rob whitfield probably has friends in incredibly high places and uh that’s nice but

rob whitfield is quoted in affidavits that of saying various things so let’s we’ll have a look at that bob reynolds um pretty sure i met bob uh around a huge table in the new south wales crime commission at uh sort of informal mediation um he appears as a witness in the westpac uh proceedings the civil ones and um he had an incredibly senior role um managing the ollis bank accounts rob colwell i kind of get a couple of these names confused i think we’ll we’ll put up his profile uh robert james withtheridge now pretty sure uh i get these two confused robert colwell and robert james witheridge one or both of those people worked at concord west in uh corrections and when i say corrections uh i don’t mean jail i’m talking about journal entries uh mistakes like cashing a cheques for 400 000 kind of mistakes um not calling them incompetent uh the but calling them witnesses and they those last two i pretty sure gave evidence and we’ll put up their affidavits this is just so many that i’m sorry i forget some of these now one that i don’t think well sorry not that i don’t forget i i confused some of their roles but i tell you what ron sczanner i don’t forget him i had a phone call and kept notes one of my habits you know if you look at my bookshelf on either side i love books i love paper i love documents and i remember [ __ ] ron sczanner

over there for

probably more than 20 years i kept journals and ron sczanner

figures in a journal and ron sczanner was very candid uh with me and i had a conversation with him i believe it was on about the 6th of february 2006 and he candidly told me that he worked for the new south wales crime commission i had cordial dealings with him he said that um westpac would be getting their money back which is kind of a strange thing for a government official to say uh when that government official and that government agency the new south wales crime commission their job is to confiscate money and not give it back to the criminals it’s the law says that we’re going to give the money to the treasurer of new south wales and at the time um uh well at one stage the treasure of new south wales was certainly mike baird now in 2006 when this was all happening it wasn’t mike bit definitely was not uh

ron sczanner and new south wales crime commission had powers and used them in a way with an intention NOT to give the money to the victims of crime like the treasurer so uh sarah rodgers uh she was a clerk at westpac at gosford no longer works there i’ve talked to her certainly rung her um i’ve emailed her i can probably even uh provide copies of the emails no longer works for westpac … a witness she certainly appears in some of those police minutes and

she had dealings with mr ollis and she opened accounts and again we can pull apart some of these documents um trevor holmes sorry sorry stephen holmes uh that name is vague to me so i’m

but apparently we’re writing about him so we’ve we’ve got a profile on him trevor mcmahon now this guy i do know trevor it was um if not the boss of mark murphy and garry wade uh and probably neil sevieri um in some way senior to them um uh very cunning senior investigator uh well

he certainly features in some of the affidavits um …. so if you get the impression we’ve got rather a lot of people to go through uh you’d you’d be spot on so

i’m just out um listing some of the characters that uh that we’re going to be reviewing over the balance of uh season 1 2 3 however long it takes i don’t care um there will be a uh a book published and uh my manuscript my manuscript is actually for sale so anyone that’s interested in in buying that manuscript uh give us a call 1300 two three and um you can buy the manuscript if you like but um uh at least all of those people are going to be mentioned there at some point obviously uh victor ollis um and his mrs a lady called gail shields um some of the uh gail’s children uh surname LYE l-y-e so some of the lies um funny name uh ironic uh are probably going to get a mention um a chris lye i mean i don’t think terrible things about any of these people but uh chris lye uh was followed uh he gave evidence that he was followed by mark murphy and chris lye he was being followed and stopped and said hang on you’re following me what’s your name and the guy said mark murphy and handed over his business card and mark murphy later turns up

on police raids now

um i’m not being critical of police but maybe i am slightly or maybe

maybe that’s unusual maybe it’s not but i would have thought police raids were for police and gathering evidence was a fairly important thing that ought to be done

by police

and normally if i go to police and want to allege you know where the victim um the victim’s role is not necessarily i wouldn’t have thought if the victim’s role is to

assemble the evidence i kind of think that’s for police to do

mark murphy attended some of the raids according to chris lye he gave evidence that the person that followed him subsequently turned up with a search warrant uh with police who had a search warrant and

i don’t know i’ll tell you what about mark murphy he’s not going to be able to say he didn’t know and so mark murphy knew quite a lot i mean he was there according to chris lye he was there when uh houses were raided certainly came and sat in my lounge room maybe it was dining room i can’t remember which one i met him

so there are a series of pages at our website www.dcpartners.solutions/westpac

and we’ve there is so many facts like all four thousand pages they are not up and maybe that’s an incentive for uh someone that’s interested in this particular book and manuscript well get in now because uh like there’ll be lots and lots of scoops still to come there’s only four five six i don’t know how many thousand pages thousands thousands of pages and that probably doesn’t include all the emails and you name it so but we’ve got a complex story to tell and so we’ve broken this up into who what where how why when and those sorts of things so uh those are those types of topics and you’ll be able to you know go to our site and we’ll just type in westpac who where’s back when let’s pack y let’s back how and um there you go so probably i’m forgetting someone please don’t feel forgotten uh i’m sure if your name appears in any of those thousands of pages there’s 40 volumes you’ll get a mention at some point so

i hope that gives you a sense of just how huge this particular case is i um by my reckoning uh i certainly gave evidence in the supreme court of new south wales that um one of my companies probably lost because of westpac because well westpac certainly gained millions let’s put it that way so uh i believe that may well be a crime even if

one of the crimes is to gain a financial advantage

like i said a few minutes ago you’d have to be nuts to believe that there are no criminals working in the new south wales state government well the royal commission has shown us that you would be nuts to believe that there are not dodgy people working at westpac and i’m not saying any of those people that i’ve just listed are dodgy i think we’ve forgotten someone philip crawford he was he is right now at the chairman of the new south wales independent liquor gaming commission whatever something like that uh philip crawford and his commission is deciding whether james packer and crown sydney ever get to do to take a bet.   well philip crawford

all i’m accusing philip crawford of is being the lawyer for westpac

and now’s the time i’ve got to be very careful with my words i’m accusing him of being the westpac lawyer

i’m accusing him of being a senior partner he might have been managing partner even at certainly one stage i think he was at henry davis york

whether whether his name is the redacted name that attended police meetings he probably didn’t

some lawyers did according to the police minutes a lawyer or westpac legal whatever something like that some lawyers either in westpac or in henry davis york or someone else somewhere else uh did attend now their names are redacted

philip crawford let’s say he’s the partner i know for sure he was a partner of westpac but sorry he was a partner at henry davis york he may have been managing partner

uh i guess

i guess that carries responsibilities

who precisely instructed james stephenson i don’t know all i know is that james stephenson received instructions i certainly don’t believe

james stephenson made up his instructions

whether whether philip crawford played any role in instructing james stephenson i don’t know but i can guarantee you one thing

uh i’ll be asking the office of legal services commissioner to investigate the firm

probably every lawyer that had any role and i’m not accusing them of being crooks i’m probably not accusing any of them have been crooks but somehow instructions found their way into court and those instructions were that no individual in the bank knew

that westpac was cashing mr ollis’ cheques for four hundred thousand dollars at a time

and apparently no one knew like just this money’s just magically appearing well i’m saying that is horseshit i’ll give you the staff numbers i got the police records some people didn’t know

i’m not saying philip crawford‘s one of them but i’m saying some people knew yeah those some people may have all lied to philip crawford

we’ll

see of issues here

that is westpac and ollis

we’re going to be talking about this nonstop thank you.  

all right this second story is about saunders and staniforth and a firm of valuers and town planners at orange and particularly it’s a it’s a reasonably short block uh it’s about this uh valuer and town planning firm uh in orange uh the director is a guy called andrew saunders who i met in person in maybe 2007 or 2008 in that vicinity i can’t tell you off the top of my head but i certainly met him in in one of those years and i also met a bloke called bob patfield and um well there’ll be a lot more detail about uh saunders and staniforth in the next little while um what i can say is uh insurance rip-offs by the way uh racketeers insurance racketeers uh andrew saunders uh is a member of something called the australian property institute and uh when you are a member of the australian property institute sort of members of the public can uh write to uh the property institute and uh nothing but praise for the complaints uh panel uh and the chair of this particular panel was a guy called chris shaw i’ve never met him never even talked to him. i’ve googled him and you can have a look at his profile and there’s a link on our page there as well to chris shaw i’m sure he’s extremely honest he’s a lawyer uh i’m sure he’s a very good lawyer and he ran the uh panel and a complaint was made about andrew saunders that uh had a number of complaints a couple a number of heads of complaint if you like and uh andrew saunders was ultimately um there was

two phases to the um complaint handling process and that was sort of addressing the complaint and looking at the substance of it well it was certainly found by chris shaw who’s who’s far from an idiot it was found that there was a prima facie case

on more than three aspects of the complaint ultimately there was the complaint if you like was upheld and um so in other words found to be valid uh and some of the one of the breaches of the australian property institute’s codes was very much a fundamental rule and that was rule 1.1 now i’ll include uh links to help a particular blog but you can go to this podcast page at dcpartners.solutions/podcast and um andrew saunders breached like the first commandment uh rule 1.1 so i’m saying this is a big one the first commandment in certainly rule 1.1 he includes words like uh dishonest uh like thou shalt not be dishonest uh thou shalt not be biased uh you know you must do your work with integrity honesty blah blah blah well

you can read the

sanction report there’s a link it’s up on our website now

dcpartners.solutions/podcast you can go straight to the sanction report um there’s a google search box within if you just google dc partners sanctions saunders uh i’m sure it’ll come up very prominently and you can read

you can read what the very intelligent chris shaw uh determined uh i’m sure he had a panel of people that helped him come to this view that andrew saunders breached rule 1.1 now that wasn’t the only one he breached uh there was prima facie cases for several of them it was certainly three three of the um codes that valuers sign up to uh andrew breached

subsequent to that andrew did not appeal

so

you may view that as andrew accepting

i i don’t know if he pleaded not guilty uh i’d

not a million percent sure of those but certainly it was found to have breached um there’s going to be a lot more content on this particular person and company saunders and stanford andrew saunders now insurances when you’re a valuer and when you’re um when you’re valuing properties you know um worth hundreds of thousands or millions of dollars it’s kind of important that you be honest and um if you go out to a property and you think it’s worth

well mistakes and mistakes can be made and so these insurance sorry these valuers carry insurance for what’s called professional indemnity in the event that they made a huge blunder then

a um a valuer carries these insurances so quite normal um so andrew has notified we know by reading the sanction report andrew saunders has notified his insurance so he has insurance he notified them his insurance company is represented by a firm called colin biggers and paisley lawyers and um the partner that um my company’s suing andrew saunders or in fact really he they’re suing his professional indemnity provider um so in other words an insurance racketeer and the insurance racketeer is using colin biggers and paisley lawyers and when i say insurance racketeers well we know that uh andrew andrew saunders has been sanctioned andrew saunders has not

appealed

andrew saunders

andrew saunders’s firm

we say andrew saunders’s firm um bob patfield well andrew saunders

says that his business merged with the business of bob patfield in 2005 bob patfield in 2006 2007 2008 and 2009 conducted valuations uh there were several properties so a number of them were of um some of the relevant bits uh andrew saunders saunders and stanford definitely did a valuation in 2010 so even if bob patfield didn’t merge as saunders website said they did in April 2005 – but let’s say they were lying uh well we know for sure that um saunders the standard for it’s uncontested they did value the property that one of the properties that the problematic property in 2010. about april 2010 and um on andrew saunders’s own evidence

the property went down in value between 2010 and 2014 yeah and it went down in value quite a lot um according to andrew saunders so you could say that that’s an admission of loss you know there’s evidence there that um the valuer you know if they’re not being dishonest and not being biased and all the rest then um that’s rule 1.1 uh then andrew saunders admits

the property is worth less in 2014 than what they said in 2010 and really if bob patfield is part of uh saunders and staniforth and andrew saunders has sworn that he’s not although andrew saunders also put up on their website said that they their company saunders and stanford did merge with bob patfield in April 2005 well so there’s all sorts of um suggestions that there was a loss andrew saunders has notified his insurer we know that because he said so in the sanctions report and colin biggers and paisley lawyers have turned up now we’re trying to subpoena some of this information from uh the lawyers for saunders and staniforth which is colin biggers and paisley lawyers or shall we say the insurance racketeers lawyer is colin biggers and paisley lawyers the partner that’s handling it is a man called jonathan newby and the special counsel is a lady called jane o’neill and some of the other solicitors there are jack golding and

nathanael his name will come to me poor nathanael i mean he he looked like a deer in the headlights a 4th of december he was really thrown under the bus

first of december 9 28 i think the time was we are electronically served documents upon colin biggers and paisley lawyers we know that they got them because our emails are tracked and we know that they opened the email at 9 41 on the 1st of december and look i’m saying someone at colin biggers and paisley lawyers is either doesn’t know how to open emails

or a person misled the judge because on the 4th of december a barrister by the name of Brett Le Plastrier i’ll spell that as what he’s um there uh got to his feet and said at one point uh words the effect um we were never served uh we haven’t seen that particular evidence that value i’m sorry that uh affidavit and um not accusing Brett Le Plastrier of lying

however

Brett Le Plastrier

did admit on his feet he’s a barrister like got a very good cv this guy so i’m gonna say he knows what he’s doing not an idiot well Brett Le Plastrier

had in his possession

there was an an exhibit to the affidavit and parts of the the exhibit sitting there in the court and we get up and tell her honor um your honor they haven’t received our document well how come i can see it

from here we can see there we can see the exhibit poor brett had to then get to his feet and say oh well your honor we received the 370 page attachment but not the um not the affidavit so

this is uh sort of head scratching stuff um colin biggers and paisley lawyers

if you’re a client of colin biggers and paisley lawyers you need to be uh incredibly concerned that they don’t know how to open an email

if you believe Brett Le Plastrier now you’d like to think a barrister is telling the truth when he gets to his feet and when he’s addressing a judge in the district court of new south wales you’d like to think that he’s not …

the standard is expected that he’s telling the truth well we know we know i’m going to publish this

and we’ve ordered the transcript we know that the evidence the submission that mr Brett Le Plastrier gave was this is the first time to the effect this is the first time i’m seeing this this affidavit that mr smith’s talking about this is the first time i’m seeing it now

i would like to believe mr Brett Le Plastrier but colin biggers and paisley lawyers

the emails tracked and between

between the 1st of december and the 4th that’s 3 days

that that email is open in excess of 50 times right from memory i think the number is 54.

54 times and they did not see …  the subject line talks about service the first line says you know maybe it’s the second line we provide by electronic service the motion and affidavit in support now Brett Le Plastrier he has a

impressive he has an impressive cv so he’s not an idiot

he informs her honor that this is the first he’s see if (the affidavit)

so are we to believe that colin biggers and paisley lawyers

send lawyers to the court sorry barristers on behalf of colin biggers and paisley lawyers

but they don’t brief them well they don’t tell them oh this might come up because it’s a motion it’s been filed and it’s been served it might come up this is quite unbelievable so on one hand you’ve got up and then there’s the issue of contempt so on one hand you’ve got andrew saunders there is a sanction report you can go to our website right now and you can read it it goes for about 10 pages it talks in plain language and says this happened and we find you guilty

we subpoena give us a copy of the merger between andrew saunders and bob patfield we subpoena these documents so that’s a that’s an order of the district court of new south wales the district court of new south wales hereby orders saunders and staniforth and over these documents that’s the 9th of july.  the 4th of december haven’t …. they’ve just completely ignored it

colin biggers and paisley lawyers that pay well completely ignored so and the notion that they’ve been served electronically and we know that they’ve received it because like Brett Le Plastrier is carrying the documents the that were attached 377 pages of them he’s carrying those but he gets to his feet and says well your honor this is the first time seeing it (the affidavit)

this is strange that’s what i’m i’m accusing Brett Le Plastrier jonathan newby , jane o’neill, colin biggers and paisley lawyers jack golding nathanael fisher

i can’t think of you know very forgettable guy nice young guy uh didn’t want to talk after court just wanted to get the hell out of there poor guy poor nathanael i’m accusing them

of struggling with the basics of email there you go either that or

the lawyers have instructed the barrister to lie now i don’t think he’s disreputable so maybe they just neglected colin biggers and paisley lawyers maybe they just neglected to … jane o’neill was on holidays so it could be that um

the work experience girl was handed the file and the work experience girl is uh has never opened an email in her life and um somehow did see that there was a 377 page attachment there but somehow didn’t see that there was a notice of motion with an affidavit and support so

the work experience girl is handling things apparently at uh colin biggers and paisley lawyers maybe they’ve employed magoo as uh as their newest the partner at colin biggers and paisley lawyers and poor mr magoo yeah can’t see he can see the 377 page document but couldn’t see the the the originating process

so and on top of that well they’re in contempt 9th of um 9th of july maybe the 10th ninth is if the subpoena has been granted issued uh and on the 10th they’ve been served uh we know that they got it because they wrote to us you know about the 20th maybe 21st 22nd and said oh you better withdraw this because you know nasty nasty threats well we didn’t withdraw it

and they still haven’t applied to set it aside so they’re certainly liable to be found in contempt so saunders and staniforth are found well not found but they’re liable to be found in in contempt andrew saunders breaches rule 1.1 he breaches rules 6.3 b and 6.3 or 4d or something like that so if you’re thinking of engaging a valuer or a town planner uh it’s all there for you to have a read of uh if you know anything about andrew saunders if you know anything about bob patfield the merger maybe you used to work there maybe you’re a client uh maybe you’ve had some experiences with colin biggers and paisley lawyers maybe you’ve come across some racketeer lawyer um maybe you’re the work experienced girl maybe your name is magoo and you work at colin biggers and paisley lawyers if you want to clear the air um on our website dcpartners.solutions/podcast bottom right hand corner we’ve got a chat tool there and we’d love to talk to you

okay we’re now going to turn to one of our favorite r’s ralph. ralph paligaru ralph ignatius paligaru uh formerly of uh 88 perfection avenue stanhope gardens um i can give you he the name where he currently lives is on the bankruptcy notice so if you want to get in touch with ralph he’s a wonderful guy i’ve even published his phone number his email address you can contact him or you like and add him as a friend become a friend ralph’s going to need a few friends so um ralph well i met ralph in march of 2017 and um he’d taken out he’d taken out some loans um these are on the record because these are subject to things that were uh published and read in the new south wales supreme court in on december of 2019 um we put on an affidavit i did anyway uh and um the evidence there i’ll make sure i put up the my exhibit um which contains copy of the uh uh the uh loan documents uh uh i think the loan statement is there as well so ralph took out a loan now this was not an oppressive loan ralph asked for it um he took out a loan for 114 000 in about august 2016 on a one-year term one year um so this is just after the sale of uh 632 old northern road dural (which settled in May 2016) and uh ralph took out a loan from a company called reliance leasing now that loan hasn’t been paid back and it got assigned to my company dcp litigation holdings so any dollar that was owed under that loan to reliance leasing is now owed to dcp litigation holdings and the uh assignment happened in about september 2019

uh ralph took out a one-year loan (from August 2016) interest free 114 000 so you can’t say that that’s unfair that that is uh incredibly fair he asked for it he wanted it uh he got it so an interest-free loan for 114 000 uh is not an unfair loan now uh in august 2017 so that’s one year after he took it out it’s due to be repaid and he then goes and borrows not from us we won’t give him any more money but he goes and borrows from franklin yeezy pty limited uh 540 000 uh and the terms are that in default uh i think the uh not in default the terms are about 3% per month so a lot of money uh about from the top of my head $15,000 a uh a month something like that maybe 16k um

but if he’s in default and from memory it was a three-month loan so um

three months and one day if you haven’t paid it back well you need to roll it over or come to some arrangement

and if you don’t then the default terms are 6%  per month so in the first month it becomes um about $32,000 in the first month interest now if you haven’t paid that like that’s a year’s wages for someone and look i’ve got a copy of ralph’s uh tax returns he gave them to me uh he’s waived all privilege and um they may well have been uh filed in court as well uh ralph’s tax returns well ralph doesn’t okay ralph declared an income not not a whole lot more than 32 000 per month so um you could say that this is a very high risk borrowing now our stuff was 0% interest um not 3 percent and certainly not 6 percent per month um so we had an extremely uh good arrangement in his favor and he was required to pay our loan back in them in one year and and didn’t um and um our case and i’ll put up a copy of our case our case was that um

when he went to refinances these monies ralph requested uh a withdrawal of our caveat which reliance provided and then withdrew and we’ve got it in writing um that uh the authority that the the withdrawal of caveat was to be held in escrow um wasn’t to be handed over and it was handed over and the lawyer acting for ralph paligaru was john francis mahony uh is holding this the case is that uh john francis mahony was holding this uh withdrawal of caveat in escrow and uh as he’s our fiduciary he’s um i actually do some work for reliance leasing so uh the case is and the um

we sought uh the leave of the supreme court of new south wales to uh claim against john francis mahony that and lawcover uh that uh john francis mahony was our fiduciary and he owed duties to reliance leasing and this is about the 8th of august 2017 on the 8th of august 2017 he gets messages in writing and we’ve got copies of those uh and this attempts to phone and um the instructions are he must and in representations not necessarily from mahony but from ralph we were provided that there must be additional security because there’s only so much equity left in ralph’s house and the messages to mahony was that and or possibly to ralph uh but the the messages were well we’re up to 90% gearing so we’re it may have even been 92% gearing so in other words virtually no no equity and we’ve done ralph a favor we’ve given him an interest-free loan uh so we said okay give us some extra security give us a charge over ralph’s interest in 632 old northern road now

i i have to be slightly careful here um around that time around i met ralph in march of 2017 and i believe in june of 2017 i became aware uh because ralph disclosed to me that he had a confidential heads of agreement which gave him

he entered into it before he entered in the confidential heads of agreement he entered into that (in April 2016) before he entered into the contract to sell the land (may 2016) so we entered into this confidential heads of agreement that says what it says and it says that uh in effect ralph will end up with a 20 interest in a ralph personally it names ralph personally as the beneficiary um uh in a private hospital so ralph will end up with a 20 interest in a private hospital for nothing

yeah, who wouldn’t want one of those? um so ralph had appointed an estate agent to sell the property

it came out that

came out that ralph had sent that state agent a bill for a referral fee uh for $60,000 

um so these are all these little benefits that ralph is getting um well thinking he’s getting or ralph is seeking to obtain ralph at the same time is employed by this man called mohan kumar and mohan kumar is paying ralph a monthly retainer um i’ve got documents from mahony where mahony describes ralph as mohan kumar’s australian manager

for that effect um so think of it like this i employ ralph do i expect some fidelity from ralph? uh do i want him to be looking after my interest because i’m paying him a wage or you know retainer every month?

anyone that i employ in my company look i expect them to have my interests at heart if you run a corner shop and you employ freddie as a as a assistant well you don’t want freddy to be pinching if that’s the term um you know pinching the cookies well mohan kumar is at a huge disadvantage at this point he’s sitting in a jail in india so you could say he was disabled and ralph is out there

ralph was his power of attorney and ralph was instructed to sell the property so ralph did that part now when you sell it when you appoint an agent well there’s usually going to be a commission um and you know mohan kumar i’m sure probably wanted to pay the cheapest commission um did he (Mohan Kumar) intend for ralph to get another year’s salary paid out of um paid by the state agent as a sort of finders fee? um or did mohan kumar um

or did mohan kumar who’s paying ralph’s wages or paying him a retainer did mohan kumar expect ralph to do things looking after mohan kumar i probably think most employers would expect their employee to do the right thing and look after the employer’s interest first so anyway um after the property sold well the the we’re going to put up the the precise i’ve already done it i put up the chronology of how 632 old northern road was sold an estate agent brooke’s partners was was appointed um

at some point craig adams comes along uh says he’s you know looking for some maybe an option at some stage and you know vendor finance this property is worth five and a half million dollars um the title deeds are handed over to um craig adams for one and a half million a $5.5m dollar property is transferred to craig adams for $1.5m plus a uh $4m loan um and so uh we’re saying uh as reliance well we want a share of we want our security there’s no no equity left at um um 88 perfection avenue stanhope gardens we want our security sec we just want to charge

the loan to the loan to ralph for 114 000 says that we get a charge over ralph’s property

at that time ralph and at the time august 2016 he had already entered into

he’d already entered into the heads of agreement the confidential heads of agreement (dated april 2016) with craig adams saying he’ll get a 20 interest in this private hospital so um it’s charged

after august 2016 after uh our caveat held in escrow by john francis mahony um gets handed over and we don’t we don’t get a charge on dural john mahony writes to me and says no ralph’s got no interest in

ralph has NO interest in 632 old northern road

no interest and john mahony even wrote to me and said if ralph said he owns the sydney harbour bridge or maybe it was the sydney opera house i can’t remember it was one of those if ralph said he owns the sydney opera house does that mean he’s got an interest

now clearly ralph has no interest in the sydney opera house did he have an interest in um

632 old northern road? ralph later put a caveat on 632 old northern road saying yes he did have an interest, yet mahony and i wonder whether mahony swore that

what i can tell you is ralph probably and amreeta but definitely ralph uh put a caveat on 632 old northern road saying he absolutely did have an interest in old but mahony has handed over our caveat

on 88 perfection avenue hour being reliances which assigned to me and as then in september maybe october november uh said that um

said no ralph uh we’re not giving you any extra security over 632 old northern road because ralph actually doesn’t have any interest so these are all very important because

john mahony is not only ralph’s lawyer but he is the lawyer for the real owner of 632 old northern road or at least the former owner uh mohan kumar so mohan kumar is owed 4 million bucks and at the same time in august 2017 uh mahony is issuing invoices to uh the purchaser so he’s acting for three parties with an interest with three different interests in the same land

and he is our fiduciary so it’s

it’s a rather unusual set of circumstances and we sought to have leave from the supreme court of new south wales to uh run a cross, run a cross claim against um john mahony for handing over our withdrawal of caviar when instructed not to

so it is a fact he handed it over

so look at this point uh ralph it’s now december 2020

. ralph under the august 2016 loan paid back not one single cent ever 114 000 interest-free never paid back one single cent uh the proper and even worse than that he put us to tens of thousands of dollars of legal expense to protect our interest

so

even denied through mahony uh and possibly uh in his defense he he denied that he owed any money um whatsoever to reliance leasing putting aside he signed it he gave us the caveat we had it there they lifted the caveat then they put another caveat back on uh he claims that uh

he had nothing so what am i saying about ralph well ralph um

ralph looks after ralph’s interest

um ralph makes, from my experience talking personally here ralph will make you promises uh he’ll even sign things uh he’ll even he’ll promise you the world but um sometimes ralph’s promises are not kept so um ralph let’s talk about mohan kumar now mohan kumar left australia on the uh and i mentioned he’s in jail um he left australia in october 2015 a couple of weeks before he left he hands a ralph a a power of attorney now i’m saying the power of attorney is is properly documented and is registered so um it’s legit the power of attorney is legit um there’s no um clauses in there that say say that ralph is entitled to confer on himself benefits in other words he can’t just get the 5 million piece of land and go and give himself a 20% interest in a private hospital now mahony later says well no that was really held for mohan kumar so um

maybe ralph is concealing assets for uh mohan kumar i don’t know if that’s illegal uh i do know that moan kumar is not a resident of australia and uh i believe uh people that are not residents of australia uh must get approval for their investments so um they you know if someone wanted to buy the property next door from china or india or wherever … uh well they have to make an application in certain circumstances there are exceptions but in certain circumstances they have to make an application to the foreign interest review board so the owner of a private hospital um probably i’m not an expert here but probably needs to make an application to um the foreign investment review board to be approved to um so they don’t let people that are money launderers for instance or gangsters probably uh people that are out there killing 20 people and involved in extortion and um you know crown casino has got problems because you know occasionally a gambler comes through there with dirty money so this is a real this is a real issue and um and i’ve said i’ve talked elsewhere in the podcast that we want to talk about um we want to talk about you know foreigners and money laundering uh and i’m not just talking about chinese or indian or californians doesn’t matter any any money launderers coming to australia with their money uh it’s legit to discuss it so um the paligaru

uh the paligaru thing is you know real um no sorry i was talking about mohan kumar so mohan kumar

his lawyer is uh mahony his power of attorney is ralph paligaru and ralph has helped, attempted to help himself to a sixty thousand dollar kickback from brookes partners uh real estate now brookes partners didn’t deny that there was uh a um debt if you like or arrangement so we say would you say arrangement they didn’t deny that there was an arrangement they just said that they it was not enforceable because ralph’s not a real estate agent that’s quite true ralph is not a real estate agent and therefore under the you know the various uh real stock and station acts stock station agents acts they can’t pay a commission to someone who’s an unlicensed agent absolutely correct uh ralph was an unlicensed agent now they never said we never made that arrangement with ralph they just said they can’t pay it it would be an offense so um for many reasons brookes partners is correct um now brookes partners also possibly have another problem in that after the property was sold they kept on sending the rent money to ralph so

at least some of the rent money some of the rent money every month went to ralph now what did brookes partners know when they introduced craig adams and they acted oh they acted for the vendor so that means they owe a duty to the vendor mo and kumar well brookes partners um were a party to this deal they did the introduction and uh they became the managing agent they collected the rent uh and part of the rent which then belonged to craig adams’s company uh they knew and they paid that to ralph so

ralph goes from working for mohan kumar

up until the day the property settles 632 old northern road to now receiving money from the purchaser but still owing a duty to uh he’s the power of attorney to mohan kumar and his own four million bucks so it’s it’s a it’s a very messy dirty messy just we’ll just say messy messy arrangement and um ralph um oh now ralph uh mohan kumar’s owed four million bucks ralph decides to assign that uh debt to me to my company for collection so ralph assigns that uh in about july um 2018. he assigns that and then says that um come the 8th of maybe the 9th of january 2019 says oh no didn’t do it that’s in writing it’s witnessed, he said, his lawyer john mahony our friend mr mahony said ralph held ralph only entered that under duress well duress means i held a gun to his head so in a office building in a public space you know surrounded by 20 or 30 50 people on the floor uh ralph he didn’t even sign it once he signed it twice he signed it in july of uh 2018 allegedly with a gun to his hit then he says that in november of 2018 he amends that deed and his wife witnesses it and he amends a second deed and apparently all along there’s a gun to being held to his head so john mahony um writes to me in july oh sorry january 2019 said oh yeah ralph signed those but it was under duress so what am i what am i accusing john mahony off well i’m accusing him of the things that are stated in the cross claim that’s what i’m accusing him of and i’m accusing him of not knowing the meaning of the word duress because um john manny’s been a lawyer for let’s say 40 years uh pretty sure he got his law degree at unsw in about 1975 when i was about six so he’s been a lawyer for a very long time and he should know the meaning of the word duress uh and but he put that meaning he put that word in writing said that he’s ralph signed it under duress or something to that effect um when uh

it’s just it’s fanciful absolutely fanciful so um

i have complained to the office of legal services commissioner about john mahony and um a company a law firm called YPOL, YPOL is i don’t know what it stands for but they act for uh lawcover there is a claim uh there has been a loss of hundreds of thousands of dollars we ralph signed a deed uh john mahony witnessed the deed uh john mahony was involved in preparing the deed john mahony signed the consent order on behalf of his client saying that if ralph does not uh honor the deed if he’s in default we can register my lawyers could register uh a consent judgment so as i said we spent tens of thousands of dollars on um getting enforcing our rights and um

john mahony now i’m going to publish the letter i’ll have to have a look make sure it’s not um without prejudice i believe it’s on the record john mahony writes that my lawyers fraudulently obtained uh the consent judgment

uh john mahony also um has …

a lawyer cannot contact the clients of another lawyer

reliance and myself my company were represented by lawyers the same lawyer and um john mahony had some legitimate discussions with mr steinberg of reliance leasing but

john mahony then proceeded i’ve got copies of all the text messages um john mahony proceeded to then discuss court cases uh john mahony been a lawyer for uh 40 years whatever long time say three decades at least three decades he must know the rules of uh you know lawyer’s rules he does know and um he has conversations with other people’s clients he was warned in writing by our lawyers over and over not to discuss the case uh with reliance leasing and in its director is a guy called garry steinberg well he did have some legitimate conversations with garry steinberg but inevitably the conversation somehow turned somehow somehow turned to um ralph paligaru and um at all times mahony knew

that he that steinberg had a lawyer and

mahony continued to talk to that other person’s lawyer behind the back of the other lawyer so when written to repeatedly do not contact our client now he could contact him on a friendly basis but not to talk about the specifics of the case so um it’s one interesting

mess there’s a lot more to come on ralph paligaru he’s now over there in fiji uh trying to operate a timber mill um obviously uh if he if he was successful in doing that he would be um selling all sorts of timber export so um he oh yeah mohan kumar the guy who he’s uh um power of attorney he’s an underworld figure like apparently killed apparently like reports um chhota rajan is he is his moniker his real name is something other than well (it is reportedly Rajendra Sadashiv Nikalje) apparently uh is something other than mohan kumar but mohan kumar in is now in india on a life sentence he has been found guilty of killing uh ordering a hit on a journalist for writing that you know um uh saying he was gangster or something um the journalist is dead and uh kumar was well not kumar but the person the real person whoever mohan kumar is (Rajendra Sadashiv Nikalje) um ralph’s employer uh the person that ralph is a duty to uh the client of john mahony uh at the same time when he’s the you’ve got clients called bargo craig adams and ralph paligaru are all all having different interests um john mahony the best lawyer in the world i mean he he’s able to juggle all these conflicts it’s just it’s just uh phenomenal what what what he can do so um it’s a real uh interesting matter and we will no doubt uh will pop up onto our website you know many of the documents a lot of the emails a lot of the circumstances there’s a chronology there there’s many many uh documents um there that ralph’s provided all sorts of admissions his way of privilege he’s done all sorts of things and um ralph is now saying uh not that he’s a crook or not that he works for a murderer or did um he probably doesn’t well he still holds the power of attorney so um

but he’s now ralph through mr mahony who’s saying no no no mark smith you’re the crook you’re the crook here you fraudulently obtained the the consent judgment oh we issued a bankruptcy notice to ralph as i mentioned earlier on so he’s saying well we’re we’re the dirty ones we’re the dirty ones we we transferred 114 000 uh interest-free um we had a caveat they say never had it had never had any interest in the land um never owed any money withdrawals being given when they’re held in escrow it’s it’s one hell of a mess

to be continued….

it’s so 2021 what’s that going to be all about um well we’re going to

be as i said building financial products and there’ll be a few links to a couple of those and uh we’re talking we’ll talk a little bit more about that in in um well a lot probably in every episode in 2021 we’ll be talking about our AFSL and particularly the busifund legal services capital trust and this is a fund that we’ve set up to you know give give investors something to something a bit different so 2021 we’ll certainly be talking endlessly about westpac and uh it will be absolutely shameful some of the um things that come out about westpac bank we will be talking no doubt about saunders and staniforth unless they happen to settle um i will definitely be talking about ralph he’s another R. um we won’t be probably talking about hakan but i think uh business interruption insurance is going to be and insurance in general it’s it’s an absolute it’s probably a necessity but many people view it as an absolute rip-off and um i

will talk we’ll talk some more uh managed investment schemes now that’s something uh preparing and uh setting up managed investment schemes is something that you can do with an afsl and that’s something busifund um can do um without afsl so uh there’ll be many many real estate rules that we talk about definitely in 2021 we’re going to touch on uh some lovely people from the orange region bernard and fiona hall they’re

their company biteriot operations pty limited uh caernarvon cherry and uh we’ll certainly talk about bonny glenn fruits and i wouldn’t be surprised if there’s going to be some public examinations in this into this company in 2021 so we’ll see about that and we’ll talk about some of these um foreign money launderers and particularly um i i spend well certainly next year i’m i intend to spend a lot more time in orange and uh our property out there has uh let’s set in a rural area there you go rural there’s another R. um rural we’re going to talk about rural issues and and um uh i have nothing against china i i had a trip there about 12 months ago i thought it was incredible uh different different and i mean i didn’t say beautiful

but i did say incredible and i did say it’s it’s it’s quite a staggering staggering country and and what’s going on there the development and um and the scope but there’s also a lot of people and um i mean i i didn’t quite appreciate um with china the uh financing issues i actually had to get money into china and um well no one wants to get money into if you’re if you’re a trader i i went to to china to buy a container load of a product and uh no one in china wants to receive their own currency no one like no trading business at all wants to receive their own currency they want to receive it in hong kong and they want to receive it in us dollars and and it would seem it certainly occurs to me that some of the quote unquote investments that are made in australia in the rural

in the rural space

i think we want to as a nation consider

whether some of the

i think it’s it’s time to look and think about whether some of the investments that are coming to australia by a foreigners are really bona fide investments um so i’m not going to touch on that right now but in 2021 i i think it’s something that we should talk about and so that is the end of the beginning well thank you again it’s been an interesting 2020 um we haven’t probably uh put on as many episodes as we’d like um but uh here we are uh we’ve we’re up to episode 3 we’ve we’ve started and uh the journey of a thousand miles starts with a single step so uh we’re on the journey um for our next episode i’m not sure if we’ll have another one just before or around christmas and i suspect though there will be an orange episode in either episode 4 or episode 5 um we’re going to be at the wonderful snowgums retreat at orange and we’ll be taking you to meet some of our villains uh maybe not in person but uh we’ll be going to see some of our villains um and uh we’ll go and see you know saunders and staniforth we’ll we may go to a place called cabonne council we haven’t talked very much about them but yes we’ll see where we go with with cabonne we will probably

go and visit uh what i how i described one of the biggest employers uh in uh in the district there which is called caernarvon cherry now they managed as i’ve said in episode 1 season 1 episode 1 uh that uh this is a company that employs uh something like has employed something like 900 employees out of a tin shed. so uh a much bigger employer you’ve heard of Cadia MIne out there employing uh you know the current owners are spending six or seven hundred uh million million yeah i a lot of money maybe a billion dollars uh doing upgrades well i don’t even think they’ve got 900 employees so uh yet uh our friends at caernarvon cherry uh

have 900 employees and um look we might even go and visit some of their employees i mean some of their employees this uh like 50 to 100 of them that uh just don’t have an have an address or their address is uh um same address as the caernarvon cherry office they don’t have a date of birth they don’t have a tax file number they don’t have a superannuation fund yet um you know they’re earning four thousand dollars working 180 hours in the week so um four thousand eight hundred maybe uh in the case of one fellow who doesn’t have a date at birth who’s under 18. like no tax file number he’s under 18 uh he’s claiming the tax-free threshold uh doesn’t have a date of birth gets paid in cheque um look we’re definitely going to visit the westpac branch in orange that is where the caernarvon cherry cheque account is domiciled and

uh we have written to the uh at the time he was the ceo and we certainly wrote to the chairman uh of westpac now poor of course poor darlings they’re no longer uh employed there are they the victim of that money laundering

fustercluck um they’re called uh where uh where the bank got fined was it 1.3 billion dollars well anyway we wrote to the chairman and ceo and told them we gave him a list of cheques and said uh hold these hold these uh look we’ll go and visit orange police um we’ll we’ll take a video out on the street there and uh

we’ll explain the relevance of orange police uh while we’re there um got nothing bad to say about orange police just probably maybe not a lot of good but um uh we might even go and visit the centrelink office of at orange many of the uh caernarvon uh workers there uh allegedly um

well we’ll talk about it we might go and see some of the benefits of foreign investment um in the orange district uh and we’ll see what uh you know chinese money it doesn’t have to be chinese but uh can be chinese uh foreign money let’s just call it foreign money uh you know we’ll look at some of the great examples and some of the great value adds that some of our foreign investors have have brought to that part of the world we’ll certainly go and visit raine and horne at um orange that’s downstairs and upstairs is the illustrious um saunders and staniforth and uh funnily enough uh both raine and horne and saunders and staniforth are probably liable uh to be held in contempt they’re both been served

subpoenas and here we are um neither of them have complied one’s downstairs and one’s upstairs now unrelated companies uh but uh roger eddy is the director of the raine and horne orange and we’ve got mitch uh staniforth and andrew saunders upstairs um i’m not suggesting these companies uh are co-owned or heaven forbid they’ve done a merger but i will tell you that uh the same office um for um saunders and staniforth had merged according to saunders and there is a link for you go and have a look at their website or there’s a link to their website on the saunders page so just google dc partners uh saunders and staniforth and uh you’ll you’ll be able to see a copy an extract of uh their webpage where it talks about the merger so um anyway as i started to say happy christmas uh we’ll probably be coming to you just the other side of christmas from orange uh there is so many wonderful sights to see in orange uh such as the ones that i’ve talked about the centrelinks the police the westpac branch uh the caernarvon cherry uh heaven forbid uh no longer we can’t call it caernarvon cherry we we must be called biteriot operations uh look we’ll go and have a look at um we’ll go and have a look at uh

um

let me put it this way we’ll go and have a look at my easement um uh i’ve had one or two run-ins with some people that want to pretend that there’s no easement that’s been there since the 1970s so um well anyway so that brings us to the end of season 1 episode 3 so thank you very much for your attention happy christmas stay safe drive safe and we’ll see you a in episode 4 possibly from orange but maybe from sydney thank you

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The Many R’s Podcast – S01E02

Podcast Mark Smith

5R Podcast – S01E02

Rogues, Rascals, Rorts, Rip-offs & Reviewables

for more information and indepth villain profiles – visit our webpage

https://www.dcpartners.solutions/products-services/blog/podcast/

To share this video: https://youtu.be/DxkTVAXIUNQ

In this series Mark Smith of DC Partners (Solutions) Pty Ltd sets the scene and discusses those villains or possible villains that we’ll be discussing throughout the remainder of the Season and subsequent seasons.

Season 2 will focus on:

Season 1, Episode 2

(Chapter 1) discusses the following:

Travel ripoff

Corporate rip-offs

Real estate including agents and developers

Andrew Saunders of Saunders & Staniforth Pty Ltd, Valuers and Town Planners (and legal advisors) of Orange, NSW.

Corporate rip-offs

For more information – chat with us live using our instant chat tools (bottom corners), book an appointment or call now on 1300-327123 (till late).

#5r #5rpodcast #marksmith

Transcript:

rogues rascals reviewables routes and rip-offs in fact a whole bunch of ours season one episode two my name is mark smith of dc partner solutions i’d love you to check in at our website

www.dcpartners.solutions slash podcast you can ring us anytime 1-300-327-123 or instant message chat with us in our web page bottom right hand corner use the tools well just to recap in season one episode one we set the scene and we discussed a range of sectors and uh different parties that we might be interested in chatting about and some of the sectors uh our villains and our themes uh these sectors that we looked at included real estate property developers um corporate villains uh travel rip-offs a a real favorite and we’ve got some huge news on that this week we talked about malfeasance which is wrongdoing by government personnel we didn’t really touch on them but iffy lawyers and we’ll see whether we’ve got uh time this week to uh to to touch on a couple of iffy lawyers uh miscellaneous shysters insurance racketeers banks and receivers well this week we’ve had a very significant win um on behalf of a class action before we even filed the class action so we managed to um well i won’t go into the tactics uh specifically but um it was surprising that uh it was surprising in some ways that uh it was unsurprising in others but it was surprising and pleasant that um we got a very good outcome for a group tour i cannot name the tour operator involved nor can i name the class members but it was a group it was a group of 61 and they uh the entire class had virtually the the same claim against the tour operator so that would be the defendant um and for roughly the same amounts of money for the same what’s called cause of action so to run a class action uh it’s necessary that at least seven people have uh the same or substantially the same cause of action against a at least one defendant so we had a we had a terrific outcome there uh we’re still very interested to help people that um have been ripped off um and uh look we keep reading newspapers all the time we’ve got scenic tours charging people 20 40 50 50 000 59 000 um cancellation fees for trips of lifetimes and uh no post payments uh travel credits that sort of thing there’s some real heartbreaking stories out there and uh we’re terribly terribly uh sorry but uh interested and willing to help help people and uh we we we read these articles about people with these horrendous uh travel uh cancellation fees through no fault of the um through through no fault of the traveler really so um we’re very keen to pursue some of those flight center qantas airways jetstar uh people that are sitting on thousands and thousands and thousands of dollars i think the latest wrought and it’s an absolute scam uh qantas airways uh flights in october are clearly not traveling uh the commonwealth government has imposed travel bans until at least the middle of december and qantas airways is refuse is refusing to uh to cancel the flights i mean they’re just um thieving bastards if i can put it like that um thieving bastards taking people’s money and um you know many months ago they’ve taken people’s money uh i was uh i think i read an example of someone i think they were going to chicago or somewhere like that booked a business class ticket twelve thousand dollars per head or thereabouts and uh clearly the flight’s not um not departing but uh qantas refusing to

refund sorry refusing to cancel and then when eventually they will cancel then well you can expect a 10 week 10 week weight for the uh poor traveler to uh to get their own money back and uh it’s just not good enough qantas youth thieving bastards so um we’re very keen to uh to help people the victims of qantas uh flight center where we’re not hearing uh wonderful things there we are hearing that people eventually get their their refunds but um uh it’s um you know uh people are not banks and uh if cash cash flows particularly tight for flight center well really that’s that is a flight center problem uh so uh there’s still hearing occasionally uh of great difficulty getting through to call centers of booking.com expedia web jet what if and and what have you so very very keen to pursue some of these travel villains um and uh specifically very keen on uh group tour class actions we’re talking about the insurance racketeers and uh this particular racket uh that’s another are rackets very close to wroughts and rip-offs but this particular one is an absolute racket and it’s it’s plain out now theft how it works is uh the travel not the travel on pubmed the insurance companies sell you a policy and look in some i’ve i’ve seen a range of different policies but certainly policies up uh that were i haven’t seen one that renewed before the end of 2019 i’m not saying they’re not out there but i haven’t seen one that renewed before the end of 2019 that had the correct wording and and it’s wording under what’s called business interruption insurance and uh typically how business interruption insurance works let’s say you run a 10-pin bowling uh alley and it burns down and well you’d get you’d get business interruption you’d get fire insurance so the building would be insured but you can actually insure your losses as well and um uh you might let’s say you you are you own this 10 pin bowling alley and this doesn’t just apply to 10 pin bowling it certainly applies to all sorts of professionals it might apply to doctors it could apply to dentists candlestick makers bakers you name it uh if you’ve uh if you have a policy that covers business interruption insurance then i strongly encourage you to look up your policy now if you’re at all unsure whether you’re covered um by all means send us a copy of your policy at solutions at dc partners dot solutions uh just email us a copy of your insurance policy solutions at a at solutions at dc partners dot solutions and how it’s supposed to work is um you have a policy that covers your losses in the event your business is interrupted and there’s some absolutely gigantic claims going through um and this case has gone through in england and they’re doing test cases here star casino

now unsurprisingly star casino has had their business interrupted but interestingly they they claim that their businesses have been interrupted not by the pandemic but by government policy and

there are a number of ways to claim but when i was talking just a moment ago about policies that renewed before the end of 2019 uh there was an exclusion clause in there that said if uh your business is interrupted uh by virtue of a epidemic or a health emergency or they don’t necessarily use the word pandemic

and they also refer to something called the quarantine act of i think it’s 1914 and they say well look if your business has been interrupted by a pandemic declared under the quarantine act of 1914 it’s a commonwealth act uh well that’s an ex an event that’s excluded well the the stuff up is that and we talked about iffy lawyers whoever the iffy lawyer is that acted for these insurance companies really has a lot to answer for and uh the quarantine act of 1914 was actually um however you put it they buy the quarantine act of 1916 or whatever the year was uh was repealed it was repealed and so all the insurance policies however none of them were updated and they continued to address an exclusion for pandemics declared under the quarantine act which had been repealed in 2016 and here we are in 29 to 2020 and along comes the

along comes the corona virus and of course there has been no pandemic declared under the quarantine act of 1914 or 1916 or whatever the year was because in fact the uh quarantine act of 1914 was repealed in 2016. so there will never be a um a pandemic declared under that particular act because it was repealed it’s gone and so uh this iffy lawyer whoever it is he or she uh whichever firm has um has left a

has left some sort of gap uh and it would appear to be the size of the grand canyon and uh you it would appear you can fly a plane sideways through it and uh it could be that thousands and thousands and thousands of businesses out there have business interruption insurance and so this is a space that we’re uh tremendously interested in if you have uh business interruption insurance or if you don’t know if you’ve got a policy and you think you might have business interruption insurance uh would depend on the business and clearly business interruption insurance requires that your business is a business and it is indeed interrupted so look there’s still some fine print but we’d be very keen to talk to you at solutions at dc partners dot solutions or come to our website uh bottom bottom corner here use the chat tool alternatively give us a call 1-300-327-123 or send us a copy of your insurance policy solutions at dc partners dot solutions okay in the villains uh real estate and developer kind of villains uh area we’re talking about we’re giving you an update from uh episode one about our friend ralph ignatius palagario and uh we’d indicated that we’d obtained a consent judgment in the supreme court of new south wales none of this is private it was all on court lists and anyone in the world could have sat in the back of the court well mr paligaru we have a judgment of the supreme court of new south wales and uh in the last 10 days or so we’ve gone and obtained a bankruptcy notice and we’ve had that served on ralph ignatius palagaru so our friend mr paligaru the clock is ticking and six under six months from now we’ll we’ll be back and um uh will uh be applying for the sequestration of that particular man’s uh affairs uh he’s the director of a company he’s yes he’s the director of a company called dural alliances proprietary limited in liquidation i appointed the liquidator there a man called daniel friskin of i think the company name is o’brien palmer insolvency uh a good bloke and uh doing a good job oh our friend mr palagar who find fifty thousand dollars uh not um by asic um has not uh has not complied with his obligations not even in in liquidation a uh a director of a company is required to cooperate uh he’s required to keep books and records but he’s also required to cooperate with the uh with the liquidator so um mr palagaru fifty thousand dollar fine by asic um let’s see whether his lawyer his lawyer is a fellow called john marney sometimes called mahoney m-a-h-o-n-y john mahoney of mahoney law at balkan hills in new south wales or norway west business park let’s see whether uh mahoney can get our friend uh mr peligaru out of that asic fine so um we’ve had uh some very interesting correspondence with our friend mr mani now uh ralph paligaru friend business partner silent partner joint venture partner received

refinanced his house to give craig adams money um to advance money to a company called golden arrow international proprietary limited also in liquidation advance that uh that chap uh mr craig adams 540 thousand dollars uh this is all on the public record uh uh logitech aviate um advanced the money in august 2017 but mr mani uh did not mr mani prepared a deed for mr palagara mr and mrs palagaro in august 2017 but uh the record shows that mr mani um did not lodge a caveat and uh a period of uh from august to november 2017 uh went by and mr mani um in about november 2017 subsequently lodged this uh caveat on these uh properties in worrywood belonging to golden arrow international proprietary limited but in the meantime uh our good friends uh ian jordan and maya i can’t pronounce this and i may are beginning with p you’ll see the transcript here of australasian property group private limited singapore uh look they did a personal loan a personal loan from uh ian jordan and maya of the company australasian property group private limited now i understand uh that australasian pro australasian property group private limited have uh is it merrill lynch or kkr kolberg cravis roberts as uh as investors uh i i i reckon they’d be uh absolutely um furious if they’d known if these investors of australasian property group private limited uh gave unsecured loans to craig matthew adams now um somehow and uh this watch this space i that’s all i’m going to say um australasian property group managed to get uh and and this company is in liquidation so uh watch this space but uh australasian property group managed to weasel out of uh golden arrow international sometime between august 2017 and november 2017 they managed to

wangle wrought if you like charges on the real property of golden arrow international now there are offences there are avoidable transactions and um watch this space uh if you um if you obtain an unfair preference in someone’s bankruptcy uh that’s something that a bankruptcy trustee can do something about so uh craig matthew adams uh craig matthew adams uh happens to know john francis mahoney of mahoney law balcom hills and interestingly uh ralph peligaro advanced 540 000 to the company of craig matthew adams called golden arrow international and the invoice uh for from john francis mahoney of mahoney law did not go to uh ralph ignatius palagaro or if it did it was actually paid for by craig matthew adams it gets murkier and murkier ralph ignatius paligaru borrowed this 540 000 from a company called uh franklin yeezy proprietary limited it had a an interest rate on it sit down six percent per month in default and so the the problem is you you’ve got to have an exit plan if you’re borrowing money at six percent per month um i don’t know how your maths is but let’s say one percent of 540 000 per month is 5400 so if you’re um in default for uh five hundred and forty thousand at six percent a month you’re talking thirty thousand dollars per month of interest in default and so that’s a real problem for ralph ignatius palagaro if you borrow 540 000 and come november of 2017 you discover that uh your interest if you’ve got one your interest in land at uh if you’ve got one because john francis mahoney uh prepared a deed for you uh giving you this interest in this this equitable interest in this land at worrywood uh then you want to hope like hell that uh john francis mahoney has lodged to have it and it turned out that um the circumstances will be investigated it’s unknown the reasons for the delay and i’m not accusing john francis mahoney of any anything uh it’s just uh he must have known that it was uh the exit plan was the exit plan for mr peligari to get his 540 000 back and noting that mr palagara would be in default if he didn’t get the money back um six percent per month so it’s rather important it’s interesting for mr mahoney to have done his job so uh if craig matthew adams paid the bill it’s also interesting who was the client was the client craig matthew adams was the client ralph ignatius peligaro and the mind boggles so that’s our our good friends there australasian property group ian mayer craig matthew adams personal loans personal loans converting to company loans for no consideration uh potentially um postponing conduct on caveats uh we’ve got unfair preferences in greg matthew adams’s bankruptcy trustee and on and on and on it goes okay quick update on our friend tony dager from uh vogue construction group proprietary limited in liquidation and our great mate max pricey of tracy yap realty uh max pricey of tracy ray yap realty is the the bloke that blocked me in the driveway at 26a hillmont crescent thornley and told me that i couldn’t attend a public auction um i turned up there at about quarter past two on the particular day for a 2 30 public auction maybe it was 20 past maybe it was 25 past i don’t remember but public auctions usually you know involve the public and um our great mate uh max pricey well according to realestate.com.iu as at this evening 27th of september uh 26 a hillmont is unsolved and uh you know i don’t uh recall the exact date of the auction but our mate max pricey stopped me now who else did he stop from coming there’s a covered 19 limitation of 20 people attending auctions so if you usually i would think if you’ve got 20 people attending an auction someone’s going to buy it they can’t all be 29 well i guess they could all be 20 neighbors but they’re all pre-registered so they’re really really organized like her neighbors so uh our mate what we did know max price he rings triple o he doesn’t want me there so um some things uh something’s seriously um bizarre is the word that i used in episode one well we’ve now got another villain to introduce you to this is our other mate dennis acrylic that’s spelled k-r-i-l-i-c of oakville he’s a electrician uh license number 193 pardon me one nine six nine seven three c new south wales uh fair trading dennis krillick uh just happens to also uh own a whole bunch of real estate in port macquarie and uh funnily enough that’s that’s where our mate craig adams is uh

he’s got lots of connections who knows where where craig lives these days where he’s residing who knows but uh unrelated person dennis acrylic uh watch this space he’s a uh emerging villain and uh we’ll be uh we’ll be sharing some more bits and pieces now andrew saunders of saunders and staniforth a wonderful town planner valuer of uh of the town of orange uh does a whole bunch of work for the commonwealth bank uh even is good enough to give legal advice i don’t know whether he’s qualified i i’d love to see cv i’ve subpoenaed his cv uh we’re in litigation with uh our friend andrew saunders he gives legal advice to people letting them know things he couldn’t possibly know about existing use rights and well another week or month or however long has gone by and we still don’t know whether andrew saunders has any qualifications to give legal advice so if you’re a client of andrew saunders you’ve got any stories um about town planning mishaps uh we would love to hear from you if you know dennis krillick of um you’ve invested money with dennis krillick in some property development we’d we’d love to know about that vogue constructions um in liquidation apparently uh uh leave behind a trial of destruction ralph kaligaru ian jordan maya p australasian property group and that’s our update on real estate and uh developer villains okay in in the corporate villains section today we’re going to touch on in a little bit more detail our good friends at bike ride operations proprietary limited otherwise known as and it was previously known as a company called carnarvon cherry proprietary limited and the directors of that we did discuss them briefly last week bernard and fiona hall now we’re looking at doing two class actions um in the you know in regards to bite right operations proprietary limited and uh carnavan cherry bite right happened to sell apples and cherries and they happened to sell those apples to woolworths and harris farm so you may you know if next time you pick up a pink lady apple uh check if it’s a bite right apple and you know you might want to choke on that but if you don’t

it’s it’s really something that uh you know we think has got a lot of merit so we’re looking at these two uh class actions involving bike ride operations proprietary limited and carnarvon cherry uh as i mentioned the first of those is an employee class action and we came across this uh case uh involving a guy called daniel usher and that’s spelled u double s h e r daniel usher and uh we noticed this in the federal circuit court of australia you know a couple of months ago and i spoke to daniel usher and daniel usher had worked some huge number of hours for carnarvon cherry now canarvan cherry seems to it’s just a perception but they seem to wanting to vanish off the corporate radar and um look uh if i was being unkind i’d say that they were phoenixing into this uh company called bite right operations so um carnavan cherry has a has an interesting history and it is currently being sued by uh one of our associates called dcp litigation holdings for something like six hundred thousand dollars so i think when that case is over it’s going to be very interesting to see if there’s any assets left in bite right sorry in carnarvon cherry proprietary limited or if they’ve all been phoenixed into bite right operations proprietary limited anyway it seems that bite right operations is um now the phoenix entity and we’re also looking at a glow at a grower class action and uh there’s a mail out going out this week to a number of growers is about 20 or 30. we’ve got a lot more growers than that on our database but we think uh well it seems that they currently have something like 20 or 30 uh growers that are supplying apples and cherries into their packing shed and

one of the companies i was a director of i was only sorry i was an associate director not a director but an associate director called homeward bound holdings proprietary limited now that that company i won’t tell you everything about it but that company did grow cherries and it had arrangements previously with carnarvon cherry proprietary limited bernard and fiona hall as i said are the directors of that and we say that seems to seems to be phoenixing into this company called bite right operations proprietary limited i’m going to put up a lot more information on our website about bike ride operations proprietary limited but there is a great deal of grey areas let’s put it that way gray areas about bite right operations proprietary limited i will put up a uh sbs dateline transcript and i’ll put up the links to the sbs dateline program and that was sometime in june and uh this company bite ride operations it must be um well let’s go into murky waters let’s put it that way it is according to the director fiona hall uh now she uh on sbs dateline amongst other things she admitted that this company that grows fruit uh ran out of water um at one of its orchards so i i don’t know uh oh and there’s a drought and there was bushfires so and there was you know record heat waves so um i also i will put up a link and i’ll provide the transcript fiona blamed the drought um in an interview with uh i think they were called central west uh regional development and i’ll put up the link it’s uh it’s on youtube you can uh you’re gonna look at it and you can be the judge yourself but uh fiona didn’t seem to um take the take the blame she’s a allegedly a nuffield scholar fiona hall and uh fiona wasn’t that keen to accept the blame for running out of water but it turns out when you’re going to grow fruit you’ve got to start pumping sufficiently early out of your bores and you know fill your dams and all the rest so there’s some questions in my mind whether she’s a genuine nuffield scholar and i happen to know um and i’ll put up the links fiona asked me to write the um to write the application for her nuffield scholarship i didn’t i wouldn’t but i do know who did write it and uh she was successful and the person that wrote it it was not fiona hall so there’s some questions there about the real bona fides there i think of bernard and fiona hall bite right operations and canarvan cherry so grow a class action if you want to join our grower class action there’s a link and uh if you’ve been growing fruit in the past uh this is maybe and i i think from the documents that i’ve seen and that the documents that i’ve assembled uh concerning homewood-bound holdings proprietary limited uh we we have questions um we fiona in sbs dateline uh claimed that her staff were paid eighty dollars a day now that seems an extraordinarily an extraordinary or seventy dollars a day seems to me to be an extraordinarily low figure what is confusing and why we think that there is scope for a growing class action is

the bills that went to the the um growers work for considerably more considerably more than 80 a day for staff in fact we’ve got one staff member um who has no date of birth no name sorry he has a name um i won’t say his name but i might publish some details uh in fact i probably will i will publish the invoice there you go i will publish the invoice and the invoice has the person’s name on it the particular person in mind uh we did some searches and this person has no date of birth according to canaan cherry it has no date of birth that person no date of birth he worked 180 something hours in the week now there only is 168 hours in the week so even if he worked every hour in the week we got billed a week being homeward bound holdings proprietary limited got billed for in excess of 24 hours a day seven days a week for this particular block so if he exists he does not have a tax file number he uh does have a tax file number exemption for being under 18 and his um so this under 18 worked more than 24 hours a day and we got a bill homewood bound holdings for 4 thousand more in excess of four thousand dollars for one week when um according to fiona on the sbs dateline they pay their stuff something like 80 a day so you go figure that out i say that there is scope for this grower class action and for those growers that want to join us and want to get want to be charged a fair sum and don’t want the assets of carnarvon cherry to end up phoenixed into bite right operations proprietary limited now’s the time to contact us

and we are putting together this class action as i mentioned now uh we have been talking about this for some months and uh the reason it hasn’t proceeded until now was because of there was a public inquiry i’ll put the links uh the uh federal government the treasurer uh ran through the commonwealth uh parliament a public inquiry into litigation funding and class actions and there was considerable unknown areas so if you’re one of the uh growers to carnavan cherry proprietary limited we think we know who you are we are going to write to you you will get our emails and you will get an invitation you can also you can join up as as a as a grower and we have a very interesting um person to be the lead plaintiff so you can’t be the lead plaintiff but you can be a class action member and uh we do have this afsl we’ve got the details of our afsl on their website

www.dcpartners.solutions and search in the afsl and you’ll find the particulars of our afsl so here we are we’re almost the end of another episode of season one episode two of the five hours pop podcast rogues rascals rorts rip-offs and reviewables and uh there was another r that we added today i can’t remember what it was but racketeers i think that might have been it so look uh there’s an endless stream of asses and we’re here to shine the light on them and discuss them and

answer your questions and look through our afsl if we can help people like you to obtain a just uh outcome uh we’d be super keen to do that so uh at the end you’ll see uh some contact details for us 1-300-327-123 uh you can always email us at solutions at dcpartners.solutions or talk to us in the bottom uh corner of the screen there’s an instant chat there on our website www.dcpartners.solutions love to hear from you love to receive your emails if you’ve got any feedback on any of our horror stories if you happen to know one of our villains if you’ve got documents about them or anything you want to shed some light on you maybe you used to work there you want to clear your conscience however it is uh by all means come and make contact with us and we’d love to hear from you and uh we’ll be seeing you very soon we’ve got uh oodles endless oodles of uh uh juicy tidbits for uh uh for our viewers and uh thank you very much for the uh incredible response we’ve had lots and lots of uh interest in the podcast so we’ll look forward to producing episode three for you in the very near future thank

you

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5R podcast – S01E01

Podcast Mark Smith

5R Podcast – S01E01 – Rogues, Rascals, Rorts, Rip-offs & Reviewables

5R Podcast – Mark Smith, DC Partners (Solutions) Pty Ltd

for more information and in-depth villain profiles – visit our webpage https://www.dcpartners.solutions/products-services/blog/podcast/ or use the tags below to preview a particular person

To share this video: In this series: https://youtu.be/QT-0USvUcy0

To view other podcasts in this series – go to our podcast page – click here

Mark Smith of DC Partners (Solutions) Pty Ltd sets the scene and discusses those villains or possible villains that we’ll be discussing throughout the remainder of the Season and subsequent seasons.

Season 1 will focus on:

Season 1, Episode 1 (Chapter 1) discusses the following:

If you have any tipoffs on any of the above – please use the instant chat tool below

For more information – chat with us live using our instant chat tools (bottom corners), book an appointment or call now on 1300-327123 (till late).

Fiona Hall (packing her bags) – profile

Fiona Hall packing her bags

How does someone become a Nuffield Scholar?

… Get your bestie to write the application?  Well that was Fiona Hall’s idea.

First, in mid 2014 she enquired with me whether I’d write the application for her (I didn’t and I am not her bestie).

Shortly thereafter the application was written by Mr Andrew Borrodell Gartrell (at the time a friend), the rest is history. 

To see Fiona’s email to me click here, to see Fiona’s email to Gartrell click here.

Fiona, wife of Bernard, is not a director of any of the Bonny Glen companies and held no direct financial interest in those properties.

Fiona however is a joint shareholder and director of Caernarvon Cherry Pty Ltd and other related companies.

As at 8 November 2019, she does not own any direct interest in the Caernarvon homestead, Caernarvon orchard or Caernarvon shed.

Below is parts of the Hall’s family business structure and landholdings.

Hall family tree of businesses
Hall family tree of businesses

Below is Fiona’s speech at the Nuffield Australia National Conference 2016 via Youtube.

Here Fiona ‘champions’ access for growers to data.

It will be interesting to see Fiona’s approach and response to subpoenas – should they be issued – in the proposed class action by cherry growers.

Another video interview by Fiona discussing the need for farm profitability.  Caernarvon is well known as having delivered ‘bills’ to fruit growers who sent their fruit to Caernarvon to be packed and sold, i.e. the net return to the grower was negative after deducting Caernarvon’s packing and marketing costs and the fruit ‘sold’.  It is unclear whether Caernarvon has at all times complied with the Horticultural Code of Conduct?

If you have any comments or information about Bernard & Fiona Hall, we’d love to hear from you including any documents via the instant chats below, through the below form or by phone on 1300-327123.

For more information – chat with us live using our instant chat tools (bottom corners), book an appointment or call now on 1300-327123 (till late).

To contact us with any tip-offs, files or information – please use the instant chat tools or form below: