Federal Court of Australia

Lantrak Holdings Pty Ltd v Yammine [2023] FCAFC 156

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    The orders of the primary judge made on 3 March 2023 be set aside.

3.    The further amended statement of claim be dismissed.

4.    The respondents pay the appellants’ costs both of the proceedings at first instance and of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The applicants be granted leave to appeal.

2.    The appeal be dismissed.

3.    The applicants pay the respondents’ costs of the application for leave to appeal and of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

LEE J:

1    I have had the opportunity of reading the reasons of Button J and Jackman J. I will adopt the abbreviations used by Jackman J.

2    Their Honours have set out the relevant facts and reasoning of the primary judges in both Lantrak I and Lantrak II, as well as the grounds of appeal in Lantrak I, and the draft grounds of appeal in Lantrak II.

Lantrak I

3    It is logical to commence with what amounts to a procedural fairness issue and, by reason of my conclusion as to this issue, it is sufficient to determine this appeal by reference to part of Ground 4.

4    As explained in detail by Jackman J, the Liemant Parties challenge the primary judge’s conclusion the Yammine Parties suffered loss by reason of the Liemant Parties’ contravening conduct: PJ (at [260]). The primary judge held that in reliance on the representation found to be conveyed, the Yammine Parties lost the opportunity to negotiate a higher price for their shares and were entitled to compensation under s 236(1) of the ACL in the amount of $7.25 million, representing the value of the loss of that chance: PJ (at [260], [264], [267]–[268]).

5    By Ground 4, the Liemant Parties contend the primary judge erred in determining compensation was payable. The Liemant Parties state eleven particulars in support of Ground 4, expressed in the following terms:

(a)    The primary judge determined an amount of compensation on the basis of a lost opportunity case and related methodology which was not advanced by the Respondents, not supported by evidence and which the Appellants were not given a fair opportunity to address both by way of cross-examination, evidence and submissions in denial of natural justice.

(b)    The only claim advanced by the Respondent was that the consideration in the Sale Agreement was at an undervalue and the Respondents’ measure of damages was the difference in that consideration and the amount representing the real value of the business, in circumstances where there was no evidence as to what the real value of the business was or that the consideration was at an undervalue.

(c)    The primary judge erred in finding that the entry into the Sale Agreement represented a loss of a valuable opportunity without evidence that the consideration therein represented an undervalue.

(d)    The primary judge failed to take account of the absence of any evidence from Mr Yammine that he was prepared to accept any price other than the claimed represented price or as to the terms of a non-compete agreement and the adverse inference to be drawn from the absence of such evidence.

(e)    The primary judge failed to have regard to the Liemant Parties’ evidence as to the value of the Lantrak NSW Business and their contemporaneous perception of its value.

(f)    The primary judge wrongly inferred, in the absence of the position being put to the Liemant Parties, that the Yammine Parties could have obtained a better price for their interests in the Lantrak NSW Business in the course of negotiating the Sale Agreement (J[252]).

(g)    The primary judge failed to give sufficient weight to the unchallenged evidence concerning the lack of availability of funding to the Lantrak Parties to meet the cost of the acquisition of the Yammine Parties’ interests in the Lantrak NSW Business (J[257]).

(h)    The primary judge failed to account for the whole of the consideration paid by the Liemant Parties for the Lantrak NSW Business under the terms of the Sale Agreement.

(i)    The primary judge failed to account for the fact that the shares the subject of the Sale Agreement were for only a half interest in the Lantrak NSW Business, not the whole of the business, and instead used figures and a valuation methodology applicable to the whole of the Lantrak NSW Business;

(j)    The primary judge failed to account for the value Mr Yammine had obtained for himself by reason that he had not entered into a non-compete agreement, and did not account for the impact of the absence of a non-compete agreement on the value of the Lantrak NSW Business;

(k)    The primary judge erred by adopting an incorrect value of EBIT for the year ended 30 June 2018, being an annualised estimate based on management accounts of $5,883,000 (J[122]) when the audited accounts of the Lantrak NSW Business demonstrate, on the primary judge’s methodology, a significant overpayment to the Respondents.

6    As can be seen, Ground 4 is, in effect, two distinct grounds: first, a contention it was not open to the primary judge to characterise the claim for statutory compensation as his Honour did and proceed to determine the claim on that basis; and secondly, even if it was open to the primary judge to proceed on that basis, there were errors evident in assessing the evidence in support of the claim.

7    It is only necessary to deal with the first of these contentions and it is well to commence by tracing how the claim for statutory compensation was pleaded and then developed below.

8    In the further amended statement of claim, being the extant pleading at the time of the hearing and on appeal, at [20], the Yammine Parties contended:

By reason of the said contravention of the ACL, the Yammine Interests suffered loss and damage in the amount of $22 million and are entitled by virtue of s 236 of the ACL to recover that loss and damage from [Lantrak Holdings] and Gary Liemant, which provision applies to Gary Liemant by reason of ss 28 and 32 of the [Fair Trading Act 1987 (NSW)].

(Emphasis added).

9    The Yammine Parties’ written opening submissions suggested no deviation from the pleaded claim. In Section B, tellingly headed, “The claim for $22 million”, it was simply asserted the Yammine Parties “relied upon the contract and suffered loss” as a result of conduct alleged to be in contravention of s 18 of the ACL (at [21]). At the hearing, no oral opening submissions were made (T2.14–24) and thereafter no evidence in chief was adduced from any of the witnesses called by the Yammine Parties as to an identified loss of opportunity. The Yammine Parties’ written closing submissions were silent as to any change to the pleaded basis of their claim for statutory compensation; Section B (again, entitled “The claim for $22 million”) did no more than restate the Yammine Parties “relied upon the conduct and suffered loss” (at [25]).

10    The Liemant Parties’ written closing submissions made something of the failure of the Yammine Parties to develop, and lead evidence as to, their pleaded claim for statutory compensation. At [120] it was submitted, correctly, that:

[t]o establish loss or damage such as to warrant the making of an order under s. 237 of the ACL, the Yammine Parties needed to demonstrate some form of quantified loss, ordinarily by reference to a counterfactual to the conduct sought to be impugned. This has not been done.

11    The Yammine Parties responded to this contention in their reply submissions (at [18]) as follows:

It is asserted at RCS [120] that the Yammine Interests have not specified the loss they suffered by reason of the Liemant Interests’ alleged misleading and deceptive conduct. As to quantification of the relevant loss, ‘the courts have consistently held that the proper measure of damages is the difference between the real value of the thing acquired as at the date of acquisition and the price paid for it’ [Kizbeau Pty Ltd v WG&B Pty Ltd (1995) 184 CLR 281, 291 (Brennan, Deane, Dawson, Gaudron and McHugh JJ)]. The evidence at trial was that a partner of PWC, Sanjiv Jeraj, said that a business such as Lantrak NSW was to be valued at five times the forecast EBIT of $7 million,[footnote omitted] although the Liemant Interests assert that the forecast of $7 million diminished during the negotiation. In such circumstances, the Yammine Interests say that the loss is the difference between the value of the business ($35 million) and the amount received by the Liemant Interests ($13 million).

12    The two footnotes to this paragraph are important. The first, a reference to Kizbeau Pty Ltd v WG&B Pty Ltd (1995) 184 CLR 281 (at 291 per Brennan, Deane, Dawson, Gaudron and McHugh JJ), demonstrates the Yammine Parties’ reliance on the principle in Potts v Miller (1940) 64 CLR 282 (at 297–298 per Dixon J), that the measure of damages is the difference between the real value of the thing acquired as at the date of acquisition and the price paid for it. The second sets out the (limited) evidence in support of this case, in particular, referring to Mr Liemant’s explanation (at T430.30–34) that Mr Jeraj of PwC suggested “that businesses of this nature typically go for a multiple of five times [EBIT] and less debt … [Mr Yammine] said, ‘Well, I will – I will make sure there is no debt’”.

13    The primary judge referred to the issue during oral closing (T26.11–45), understandably asking how one was to “value this loss or damage from the loss of the commercial opportunity, in effect, to make a contract for $22 million more than you did make?” Mr Crutchfield QC, who appeared below for the Yammine Parties, confirmed their position remained as stated in their reply submissions (at T26.39–27.21):

MR CRUTCHFIELD: Well, we say and we’ve said in our reply submissions, your Honour, that the tortious measure of damage in those circumstances is the difference 40 between the real value of the thing acquired and the price that was paid for it, and the - - -

HIS HONOUR: But I don’t have any evidence of the real value of the thing acquired.

MR CRUTCHFIELD: Well, we know – it was common ground that this business was being valued at five times EBIT, the forecast EBIT of $7 million.

HIS HONOUR: But I don’t have any evidence about a valuation of that. I’ve just got – you’re pulling out some figures and saying, well, that was what it is.

MR CRUTCHFIELD: Well, it’s more than just us pulling out figures. That – it was Mr Liemant’s evidence as well ...

HIS HONOUR: Yes, but this is a Sellars v Adelaide Petroleum situation. Right.

MR CRUTCHFIELD: Yes.

HIS HONOUR: So we’re dealing with a loss of a commercial opportunity to acquire – to sell a business for more than the $13 million on the promise, that was misleading, that, “I will pay you another 22.”

MR CRUTCHFIELD: Yes. That’s right, your Honour. We accept that.

14    But senior counsel neither suggested nor developed any submission in reliance on Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 (at 348 per Mason CJ, Dawson, Toohey and Gaudron JJ), which would have involved contending the loss suffered was the loss of a commercial opportunity to negotiate a different, more financially favourable transaction. Instead, consistently with the pleaded case and Potts v Miller, he invited the primary judge to do “as best as your Honour can on the evidence – although, if your Honour were to find for us on this point, it would, of course, be open to your Honour to call for further evidence about what the value of the business was at the time, but we would submit that the evidence is there”: T27.46–28.3.

15    In response, senior counsel for the Liemant Parties, Mr Finch SC, criticised the suggestion that any loss of a chance case was being run, correctly submitting that “the whole case was never conceived of in that way” (T33.35) and the pleaded case referred only to damages in the order of $22 million: T33.17. Mr Finch also referred to the defects in the collateral contract and estoppel cases and engagingly submitted the whole misleading and deceptive conduct case was “another example of what Bryson J used to call the same horse with a jockey with different colours sitting on top of it, and his usual next line was that the other nags failed to earn their hay”: T33.37–40.

16    As a review of the transcript makes plain, contrary to the submissions of the Yammine Parties, senior counsel for the Yammine Parties below did not “embrace” the proposition that a loss of opportunity case was open; indeed, highly experienced senior counsel, who knew how the case of his clients had been pleaded and run, did not move beyond the proposition that the Court should award compensation determined as the difference between the “real value” of the thing acquired and the price paid for it and, understandably, an implicit acceptance that it was open for the judge to conclude there was an infirmity in the evidence of value, which might require additional evidence.

17    As I explained in Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 142 ACSR 445 (at 533 [350]), it is necessary in a loss of opportunity case to specify the relevant opportunity, the material facts relied upon, and the amount of damages claimed. Usually, and ideally, this is done by a proper pleading of the type identified by Jackson J in Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221 (at [50]–[51]), but at the very least, it is necessary to apprise the party meeting a loss of opportunity case of the case being run at the commencement of the case and the material facts relied upon in a way sufficient to provide procedural fairness. Not only was this not done, but given the pleading and written opening, it was not attempted and, unsurprisingly in these circumstances, no direct evidence was adduced by the Yammine Parties as to these matters.

18    In my respectful view, in these circumstances, the primary judge ought not to have made what the Liemant Parties contended on appeal was the “unrequested and unexpected” finding of an unpleaded and undeveloped loss of opportunity case: Suvaal v Cessnock City Council [2003] HCA 41; (2003) 200 ALR 1 (at 9 [33] per Gleeson CJ and Heydon J). One readily understands why, given his Honour’s findings as to contravening conduct, he considered that some statutory compensation should logically follow. But the record demonstrates the statutory compensation case his Honour upheld was not run and the Liemant Parties were prevented from having the opportunity not only to procure any relevant admissions from Mr Yammine, but also to adduce any evidence in chief they may have wished to lead as to the alleged loss of opportunity.

19    Ground 4 is made out.

20    On appeal, and consistently with the view expressed by the primary judge, the Yammine Parties’ present senior counsel, during her highly cogent submissions, understandably did not suggest the evidence adduced before the primary judge was sufficient to make out the pleaded case for Potts v Miller loss. I agree with Jackman J that there can now be no remitter to rehear the question of loss. Every opportunity was given to allow sufficient evidence to be adduced and there was a failure to do so. Moreover, the point in time at which the Yammine Parties were to articulate any claim for loss of opportunity has now passed.

21    Although it is unnecessary to deal with any further grounds, I agree with Button J as to why particular (a) of Ground 1 is also made out.

22    For completeness, I make two further points, which are unnecessary for the disposition of the appeal.

23    The first is one leaves this case with a nagging sense of disquiet as to whether one can be satisfied that what really went on between the parties was revealed in the evidence. This is no fault of his Honour. It is notable that attempts to reduce the 2016 agreement to writing appeared to founder not because of any initial failure to provide instructions to document the agreement, but after steps had been taken to document the transaction and at a time when complications as to the capital gains tax consequences of the transaction emerged. In these circumstances, the mutual position of the parties that potential tax implications played no part in informing what was discussed and the structure and nature of the deal struck in 2018 strikes one as intuitively surprising.

24    The second relates to Jackman J’s observations, at [277]–[278] below, as to the way in which evidence in chief was adduced below. Reasonable minds differ on this point. It is important to ensure an inarticulate, nervous, or poorly educated witness does not encounter barriers in giving evidence in chief. Each case is different, and the lodestar in making the case management decision as to the mode of receiving evidence in chief is what best facilitates the resolution of issues “according to law, and as quickly, inexpensively and efficiently as possible”: see s 37M(1)(b) of the FCA Act. A controversy determined “according to law” is a resolution that is just and, as Gleeson CJ observed in relation to a cognate provision of the then Supreme Court Rules 1970 (NSW), there is a reason why there is a comma after the word “just”: the Hon Murray Gleeson AC, ‘Managing Justice in the Australian Context’ (Speech, ALRC Conference, 19 May 2000).

25    While recognising that a just outcome in different cases and involving different types of witnesses will likely call for differing modes of receipt of evidence in chief, as a general proposition, I adhere to the view I expressed in Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 (at 253–254 [24]–[27]):

24    … at the first case management hearing (FCMH), I raised with the parties my preference that evidence in chief in relation to controversial facts be led orally. In doing so, I had in mind both the terms of the Practice Note and the sort of considerations thoughtfully discussed by the Hon Justice A Emmett writing extra-judicially in his article, ‘Practical Litigation in the Federal Court of Australia: Affidavits’ (2000) 20 Australian Bar Review 28, where that very highly experienced judge observed (at 28):

Where an assessment of credit is required, a judge will have a much better prospect of assessing a witness who gives evidence in chief orally rather than being exposed to cross-examination immediately upon entering the witness box.

25    Qantas expressed a “strong preference” for affidavits … and senior counsel of the Union perceived some advantages in written evidence in chief, despite my indication … that:

I’m always conscious of what Lord Buckmaster said – and this is no [reflection on] any party, but it’s a famous quote that used to be repeated constantly by the Honourable T.E.F. Hughes AO QC, and that is that the truth comes out of affidavits like water from a leaky well, whereas people come along and tell their story in the witness box, there might be a better chance of the account being given in a more spontaneous way, and it may save a lot of money and cost and time.

26    This aphorism was one I had mentioned in Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 377 ALR 234 (at 269 [110]–[113]), where I also repeated the comment made by Lord Woolf MR contained in the Access to Justice Report, Final Report (HMSO), 1996 (at [55]) that:

Witness statements have ceased to be the authentic account of the lay witness; instead they have become an elaborate, costly branch of legal drafting.

27    In citing my observations in Lloyd v Belconnen with apparent approval in Queensland v Masson [2020] HCA 28; (2020) 94 ALJR 785, Nettle and Gordon JJ observed (at 810 [112]) (footnotes omitted):

The oft unspoken reality that lay witness statements are liable to be workshopped, amended and settled by lawyers, the risk that lay and, therefore, understandably deferential witnesses do not quibble with many of the changes made by lawyers in the process – because the changes do not appear to many lay witnesses necessarily to alter the meaning of what they intended to convey – and the danger that, when such changes are later subjected to a curial analysis of the kind undertaken in this matter, they are found to be productive of a different meaning from that which the witness intended, means that the approach of basing decisions on the ipsissima verba of civil litigation lay witness statements is highly problematic. It is the oral evidence of the witness, and usually, therefore, the trial judge’s assessment of it, that is of paramount importance.

Lantrak II

26    I agree with Button J’s observations as to the necessity for leave to appeal, but like Jackman J, and for the reasons his Honour gives, I would grant leave but dismiss the appeal.

27    Given the decision of the primary judge, it is unnecessary to consider the correctness of his Honour’s refusal of “leave” to cross-examine Mr Yammine on the matters canvassed in his affidavit: PJ (at [83]). In adopting that course, his Honour applied a line of authority developed in some States prior to the introduction of the Evidence Act 1995 (Cth) (EA) and its cognates and summarised by Nicholson J in Scanlon v American Cigarette Co (Overseas) Pty Ltd (No 1) [1987] VR 261 (at 272) as follows: “there is clearly a discretion in the Court to permit cross-examination on affidavits or otherwise. In interlocutory matters ... such a discretion is normally exercised somewhat sparingly” (citation omitted). That statement has apparently been approved in this Court on numerous occasions: see Selvaratnam v St George – A Division of Westpac Banking Corporation (No 2) [2021] FCA 486 (at [43]–[45] per Stewart J).

28    Although the point does not arise for decision (and notwithstanding it is understandable the primary judge approached the issue the way he did given the state of the authorities), the apparent difficulty with this approach is that the EA applies to interlocutory proceedings (s 4(1)(b)), s 27 provides that “[a] party may question any witness, except as provided by this Act” and s 29(1) provides that “[a] party may question a witness in any way the party thinks fit, except as provided by [ch 2 of the EA] or as directed by the court”. Although the Court has an express (s 11) and implied power to control the conduct of a proceeding (except so far as the EA provides otherwise expressly or by necessary intendment), given the terms of ch 2, it seems to me the question of whether cross-examination should occur on an interlocutory application is more properly framed as whether a direction should be made that it does not occur. When properly framed, it can be seen the mandatory considerations in s 192(2) of the EA apply to considering whether a direction ought to be made and it is difficult to understand how this can be reconciled with the notion that a form of “leave” needs to be sought and that such “leave” is normally granted “somewhat sparingly”. Although as a practical matter the result may be the same (in that a direction there be no interlocutory cross-examination would no doubt often be appropriate), and with respect to those who have expressed a different view, it is not evident to me that the pre-EA approach is the right starting point or frame of analysis.

Associate:

Dated:    26 September 2023

REASONS FOR JUDGMENT

BUTTON J:

TABLE OF CONTENTS

Lantrak 1

29    I have had the benefit of reading, in draft, the reasons of Lee J and Jackman J concerning the appeal in Yammine v Lantrak Holdings Pty Ltd (No 2) [2023] FCA 162 (Lantrak 1).

Ground 1

30    I agree with Jackman J that the appeal ought to be allowed on the basis that the primary judge erred in finding that the representation in question was made at all, or with sufficient precision to be actionable: ground 1, particular (a). While I generally agree with much of Jackman J’s analysis of the evidence, I reach the conclusion that the appeal ought to be allowed on ground 1 on a more confined course of reasoning.

31    The representation pleaded was that Gary Liemant (Mr Liemant) and Lantrak Holdings Pty Ltd (Lantrak Holdings) represented that “they would honour the September 2018 Heads of Agreement and would pay the balance of the original price of $35 million attributable to the Yammine Interests Shares, being $22 million”: Further Amended Statement of Claim at [16]. The Heads of Agreement signed by Mr Liemant did not specify any price for the shares in Lantrak NSW Pty Ltd (Lantrak NSW). Rather, it specified a total consideration of $47.5 million and the parties agreed to negotiate in good faith with respect to the allocation of that sum between the Business, Inventory and Truck Shares Price, the Share Price and the Unit Price as those terms were defined. Of those multiple assets, it was the Share Price that related to the shares in Lantrak NSW. The representation, as pleaded, could never succeed on its terms as “honouring” the Heads of Agreement only bound the Liemant interests to negotiate in good faith as to the portion of the total consideration to be attributable to the shares in Lantrak NSW; it did not specify a price of $35 million for those shares.

32    However, the trial was contested on grounds that went beyond the confines of the representation, as it was pleaded by reference to the signed Heads of Agreement. No complaint was made on appeal on that score.

33    As Jackman J has addressed in detail, the sum of $35 million for the Yammine interests’ shares in Lantrak NSW was not agreed by Mr Liemant. Mr Liemant accepted that Mr Yammine expected to be paid $35 million for those shares. Mr Liemant could fairly be criticised for not disabusing Mr Yammine of that expectation and for trading in ambiguities, but the evidence does not reveal any representation, express or implied, by Mr Liemant that the Yammine interests’ shares in Lantrak NSW would be acquired for $35 million. The high point of the evidence concerning the $35 million figure was Mr Liemant’s acceptance that the negotiation at the second meeting at PwC’s offices proceeded by reference to a price of five times EBIT, and that Mr Yammine had put forward $7 million as the EBIT figure, so they discussed five times an EBIT of $7 million. However, the evidence did not go so far as Mr Liemant having accepted that figure as the price to be paid for the shares in Lantrak NSW.

34    The critical conversation was the conversation between Mr Yammine and Mr Liemant on 9 October 2018. While, as Jackman J has noted, the exchange recorded in transcript extracted by the primary judge (Lantrak 1 at [91]) was not introduced on the basis that it recorded the conversation of 9 October 2018, in my view the content of the conversation in the context of other witnesses’ evidence suggests it was the conversation of 9 October 2018.

35    Mr Yammine’s evidence of that conversation was that Mr Liemant said, “I always honour what I sign”: Lantrak 1 at [91]. Mr Yammine also gave evidence of a conversation he had with Mr Liemant (which the primary judge found was the same conversation), in which Mr Liemant said, “I will always get this deal done that I signed. I will always honour it”: Lantrak 1 at [92]. To the extent that the Yammine parties’ case rested on Mr Liemant having said on one or more occasions that “I honour what I sign”, such statements did not convey a representation that the Liemant interests would pay $35 million for the shares in Lantrak NSW. All that Mr Liemant had signed was the Heads of Agreement, which specified no price for the Lantrak NSW shares.

36    Mr Yammine’s evidence was that, during the same conversation, Mr Liemant also said he would “work out something that I can give you for now, … and then I will be able to get the rest”, “I will honour you”, “I will make this right”. Other witnesses who overheard the call on 9 October 2018 gave evidence of Mr Liemant saying he would “honour the rest”: Lantrak 1 at [97], [98].

37    While I would not go as far as Jackman J in explaining statements of this kind as referring to the outcome of future negotiations, such ambiguous statements by Mr Liemant do not convey a representation that Mr Liemant or the Liemant interests would pay the Yammine interests the balance between the amount to be paid for the shares under the Sale and Purchase Agreement (the SPA) (executed on 12 November 2018) and $35 million. As I have said, Mr Liemant was trading in ambiguities, but that does not make good the representation asserted in the context where there was no clear consensus as to the price for the shares to begin with.

Ground 4

38    I otherwise agree with the reasons of Lee J in relation to ground 4 and agree with his Honour that it is unnecessary to address the balance of the grounds of appeal.

Lantrak 2

Introduction

39    On 1 June 2022, Rares J reserved judgment in Lantrak 1. Shortly after judgment in Lantrak 1 was reserved, Norman Yammine and others commenced another proceeding (Lantrak 2) on 28 June 2022. Gary Liemant and the other respondents in Lantrak 2 promptly foreshadowed an application contending that Lantrak 2 was an abuse of process, which application was commenced by interlocutory application on 5 September 2022.

40    Lantrak 2 was commenced by originating application and concise statement, both of which were amended on 16 August 2022.

41    The primary judge heard the interlocutory application for a permanent stay on 23 November 2022 and, on 9 December 2022, delivered reasons concluding that Lantrak 2 was an abuse of process: Yammine v Liemant [2022] FCA 1480 (PJ). Orders were made permanently staying Lantrak 2. The appellants brought an application seeking leave to appeal.

42    In my view, for the reasons which follow, leave ought to be granted and the appeal allowed.

Background facts

43    The primary judge set out the relevant background facts concerning Lantrak 1 and Lantrak 2: PJ [6]–[56]. No issue was taken with the accuracy of his Honour’s summary.

44    To put what follows in context, it is necessary to set out some aspects of the background, which was more fully set out by the primary judge.

The parties and the claims advanced in the two proceedings

45    Lantrak 1 concerned the terms on which a business venture involving Mr Yammine (and his corporate interests) and Mr Liemant (and his family’s corporate interests) came to an end.

46    The parties to Lantrak 1 were Mr Yammine and NJA Pty Ltd (NJA) as trustee for the NJA Family Trust (a family trust of Mr Yammine). NJA held 50% of the shares in Lantrak NSW. The other 50% was held by Lantrak Holdings, a family vehicle of Mr Liemant and his brother Mark Liemant.

47    In Lantrak 1, Mr Yammine and NJA claimed that, in addition to the sum of $13 million which Lantrak Holdings agreed to pay to purchase the Yammine interests’ shares in Lantrak NSW pursuant to a written agreement entered into on 12 November 2018 (ie the SPA), Mr Yammine had agreed with Mr Liemant that the Yammine interests would be paid an additional $22 million, being the balance of what was said to have been the original price ($35 million) agreed under non-binding Heads of Agreement entered into in September 2018. The first claim advanced in Lantrak 1 was for breach of that alleged oral collateral contract.

48    The second claim advanced in Lantrak 1 asserted that the Liemant interests were estopped from resiling from a promise to pay the Yammine interests the further sum of $22 million.

49    The third claim advanced in Lantrak 1 asserted misleading or deceptive conduct on the basis that, prior to entry into the SPA, Lantrak Holdings and Mr Liemant represented to the Yammine interests that they would honour the earlier Heads of Agreement and would pay the balance of the original price attributable to the Yammine Interests’ shares, namely $35 million.

50    The fourth, and final, claim advanced in Lantrak 1 was an alternative claim that, on or about 11 October 2019, Lantrak Holdings and Mr Liemant agreed to pay Mr Yammine $10 million for entry into a “non-compete” for a period of 10 years.

51    As the primary judge observed (PJ [35]), the claims advanced in Lantrak 1 related to the “dissolution of the commercial relationship between the Yammine and Liemant interests that found expression in the business of Lantrak NSW”.

52    Whereas Lantrak 1 concerned the dissolution of the commercial relationship, three of the four claims advanced in Lantrak 2 concerned the commencement of that relationship, and the fourth concerned the operation of that relationship.

53    The applicants in Lantrak 2 were Mr Yammine, NJA and Recycling and Transport Solutions Pty Ltd (RTS), which was another Yammine corporate vehicle. Prior to late 2016, RTS operated an earthmoving and landfill business in New South Wales. The business of RTS was transferred to Lantrak NSW — the 50:50 Yammine/Liemant vehicle — in early 2017.

54    The respondents in Lantrak 2 were Mr Liemant, his brother Mark Liemant, and Lantrak NSW.

55    In Lantrak 2, the applicants claimed that, in late 2016, Mr Yammine and RTS agreed with the Liemants to sell 50% of the RTS business for $5 million, with that business to be transferred to a new company. The new company was to be held 50:50, with Mr Yammine managing the day-to-day business (winning and overseeing work) and the Liemants being responsible, through other Lantrak entities, for head office functions (invoicing, accounting and financial matters).

56    The first claim advanced in Lantrak 2 asserted a breach of contract, and claimed payment of the $5 million purchase price.

57    The second claim asserted a breach of fiduciary duties said to be owed by the Liemants to the applicants. That claim asserted that, in breach of their fiduciary duties, between January 2017 and November 2018 (being the whole period of the venture between the two sides), the Liemants did not cooperate with the applicants by not keeping them informed of Lantrak NSW’s financial performance, and used their position as directors to cause Lantrak NSW to understate its profits so as to remove or inhibit the ability of Lantrak NSW to pay dividends. It also alleged that the Liemants put themselves in a position of conflict and made secret profits. The applicants claimed loss and damage, an account, and payment of the unauthorised profits.

58    The third claim advanced in Lantrak 2 was for misleading or deceptive conduct, on the basis of an alleged representation in late 2016 concerning the payment of $5 million for the transfer of the RTS business.

59    The fourth claim asserted in Lantrak 2 was for unjust enrichment. That claim was advanced in the alternative to the contract claim concerning the payment of $5 million for the transfer of the RTS business. It asserted that, if the agreement was not binding or enforceable, Lantrak NSW had been unjustly enriched on the basis that it acquired the business of RTS for no consideration. RTS claimed restitutionary damages for the value of the RTS business.

Procedural aspects of Lantrak 1 and Lantrak 2

60    The applicants in Lantrak 1 were directed to put on their outlines of evidence prior to the respondents to that proceeding being required to plead: PJ [37]. I will return to the outlines filed by the applicants, and by the respondents, later in these reasons.

61    On 5 March 2021, Lantrak 1 was set down for trial on 7 March 2022, on an estimate of seven days.

62    The parties made standard discovery between May and July 2021. The primary judge recorded (PJ [43]) that:

The respondents’ discovery included substantial documentation with regard to the financial position of Lantrak NSW throughout the period of its operation. That documentation included balance sheets, profit and loss statements, group financial reports, debtors and cash flow reports, cash flow forecasts, debtors and creditors ledgers and asset registers from time to time.

63    The discovery lists forming part of the record on the present application show, however, that very little (if any) of the respondents’ voluminous discovery related to the transfer of the RTS business into a new, joint venture company, as was being discussed and given effect in late 2016 to early 2017.

64    The principal claims advanced in Lantrak 2 were foreshadowed in correspondence from the solicitor for the applicants in Lantrak 1 shortly before Christmas 2021. That correspondence was summarised by the primary judge as follows (PJ [52]–[55]):

52     On 22 December 2021, the applicants’ then solicitor, Mr Zouky OAM, wrote to the respondents’ solicitors. Mr Zouky’s letter stated that he had been instructed by Mr Yammine to institute a further proceeding against Gary and Mark Liemant in relation to the transfer of the RTS business from RTS to Lantrak NSW in early 2017. The letter then set out details of the claim “in the amount of approximately $5,000,000.00”. The letter stated that the proceeding would be commenced shortly and that it was “likely that the above proceeding will need to be managed together with the existing proceeding”.

53     On 23 December 2021, Mr Zouky sent a further letter to the respondents’ solicitors. The letter stated that the “two proceedings will involve common witnesses and may involve overlapping issues of fact and law, such that it would be most efficient for them to be heard and determined together”. Mr Zouky also proposed the terms of an email to be sent to the docket judge’s associate which included informing the judge of the imminent new proceeding, that the proceedings should be managed together and that an adjournment of the first proceeding may be necessary.

54    On 24 December 2021, the respondents’ solicitor, Mr Milner, replied. In relation to the proposed new proceeding, he stated that he was not in a position to express any concluded view as he had not yet been served with any proposed pleadings. Mr Milner stated that the proper course for the applicants to take was to serve the proposed pleading as soon as possible. Mr Milner did not consent to the docket judge being notified in the manner that had been proposed by Mr Zouky.

55     On 31 December 2021, Mr Zouky wrote a further letter to Mr Milner saying that he would arrange for the statement of claim in respect of the foreshadowed proceeding to be served as soon as possible. Notwithstanding that, no statement of claim was served, and at a case management hearing early in the new year no mention was made of the proposed new proceeding or claims.

65    The trial in Lantrak 1 commenced on 8 March 2022. Evidence was taken viva voce. Closing submissions were made, and judgment reserved, on 1 June 2022. On 20 June 2022, the Yammine interests’ solicitors gave notice that they were about to commence Lantrak 2. After the Liemant interests refused to participate in settlement discussions, Lantrak 2 was commenced on 28 June 2022.

The hearing of the interlocutory application

66    At the hearing of their interlocutory application, the respondents relied on an affidavit of their solicitor, Mr Milner, dated 2 September 2022.

67    The primary judge did not directly refer to the evidence given by Mr Milner in his reasons, but some aspects of that evidence may nonetheless be noted. Mr Milner referred to the orders made for discovery and the extensive and expensive exercise undertaken by KordaMentha to extract documents, which were then reviewed by Arnold Bloch Leibler (ABL) (the respondents’ solicitors), along with text messages. Mr Milner also deposed to various subpoenas having been issued, the pre-trial correspondence just referred to, and other pre-trial steps in Lantrak 1.

68    Mr Milner deposed to the costs incurred in relation to Lantrak 1, and his estimate of the costs to be incurred in Lantrak 2. Mr Milner identified that he considered there would be duplicative costs and cited a number of matters he considered would likely be the subject of evidence in both trials. Mr Milner considered that ABL’s resources “could have been used more efficiently” had the claims in Lantrak 2 and Lantrak 1 been heard and determined together.

69    Mr Milner said he considered it likely that KordaMentha would be likely to repeat a significant portion of the complex and lengthy discovery process undertaken previously because revised search terms would need to be applied. Mr Milner also referred to the overlap in witnesses.

70    Mr Milner finally referred to the risk of inconsistent findings as follows:

77     Finally, because the First Proceeding and this proceeding concern questions associated with consecutive related transactions, being the buying into and the exiting from the Lantrak NSW business by Yammine and NJA, it will be necessary for the judge in this proceeding to hear evidence on factual matters already addressed in the evidence in the First Proceeding. Matters likely to be the subject of evidence in both trials include:

(a)     The parties’ introduction and initial meetings with one another in relation to the prospect of engaging in business together in New South Wales (for example, see from T4:20, T59:39);

(b)     The terms on which the Applicants and Respondents engaged with one another in the establishment of Lantrak NSW (for example, see from T5:22, T70:35, T72:30);

(c)     The use of advisers in connection with the establishment of the Lantrak NSW business and the negotiation process (for example, see from T4:45, T7:6, T8:14, T42:25, T59:18, T64:40, T65:45, T104:25);

(d)     Efforts to draft the terms on which Yammine and NJA would enter into the Lantrak NSW business (for example, see from T4:20, T5:29, T44:40, T69:27, T74:27);

(e)     The reasons why, ultimately, the initial entry into the Lantrak NSW business was not documented (for example, see from T78:6);

(f)     The role of the parties within the Lantrak NSW business (for example, see from T6:8, T87:27);

(g)     Yammine’s performance of his duties and responsibilities within the Lantrak NSW business (for example, see from T91:30); and

(h)     The financial performance of Lantrak NSW (for example, see from T116:39).

78     Given the extent to which there is a real and substantive overlap between the issues raised in the First Proceeding, and the issues raised by this proceeding, which must be the subject of evidence, I consider there to be a real and not remote risk that there may be inconsistent findings on issues common to the First Proceeding and this proceeding.

71    While Mr Milner’s affidavit referred to there being an “overlap” in issues, he did not attempt to detail the overlap in “issues” (as distinct from the overlap in the matters he considered likely to be the subject of evidence also in Lantrak 2).

72    The primary judge also had before him an affidavit of Mr Yammine dated 3 October 2022. In that affidavit, Mr Yammine set out his reasons for not bringing the claims advanced in Lantrak 2 in the first proceeding. Mr Yammine’s evidence was summarised by the primary judge at PJ [76]–[82]. An application to cross-examine Mr Yammine was refused.

73    Mr Yammine stated that:

(a)    he considered the claim advanced in Lantrak 1, and the circumstances giving rise to it, to be separated in time and substance from the matters relating to the initial transaction for the transfer of the RTS business;

(b)    at the time of commencing Lantrak 1, he was not focused on those other claims, which also required further consideration and consultation with his lawyers before he could embark on them;

(c)    when he commenced Lantrak 1, he wanted to seek and obtain relief promptly and did not want to delay the resolution of those claims by introducing the “very different claims” the subject of Lantrak 2, upon which he was not then focused, and which required further investigation;

(d)    at the time he commenced Lantrak 1, Mr Yammine did not have effective control of RTS due to steps taken without his authority to remove him as sole director and secretary of RTS, and his shares were transferred without his authority;

(e)    RTS was deregistered on 1 November 2021 following non-payment of ASIC fees, and only reinstated on 3 February 2022 once Mr Yammine recovered some control of RTS after discovering these irregularities in November 2021; and

(f)    it was not until 25 July 2022 that Mr Yammine once again became a director of RTS.

74    In relation to the correspondence sent by his solicitors in late 2021, Mr Yammine said he understood that having the claims managed together would require the cooperation of the Liemant interests, which cooperation was not (based on the ABL correspondence) forthcoming.

75    At the hearing, the primary judge observed that the affidavits from both sides were effectively submissions and would be treated in that way.

76    The transcript of the hearing before the primary judge records that counsel for the Liemant interests referred extensively to the evidence given at the trial in Lantrak 1 as to the first agreement and the profitability of Lantrak NSW. However, the vast majority of the evidence referred to was elicited by counsel for the Liemant parties in cross-examination of Mr Yammine and another Yammine witness, Mr Pinto. While reference was made to evidence on those topics in cross-examination of Mr Liemant, the references given show the cross-examination referred to was relatively short.

77    Before the primary judge, the submission made by the Liemant parties, and repeated with emphasis, was that the whole of the factual dispute sought to be advanced by Lantrak 2 was already before the primary judge in Lantrak 1. That submission was advanced in various ways, but is captured in the following extracts from the transcript (emphasis added):

Now, we say, similarly [to UBS AG v Tyne (2018) 265 CLR 77 at [57]], the whole of the factual dispute between the Yammine and the Liemant interests and their related parties arising out of the joint enterprise of the Lantrak New South Wales business for about two years was before the court in the proceedings.

…

And the vexation would arise because, in order to respond to — in order for the applicant to propound the claims in the second proceeding, and in order for the respondents to defend them, precisely the same territory is going to have to be traversed as has already been litigated in the first proceedings.

…

[Referring to a passage of UBS at [58]] We say that applies in the case at hand, because what we have is factually one dispute, and that’s made good by reference to all the material to which I took your Honour before lunch which demonstrates what was, in fact, the subject of that litigation before Rares J.

…

So we respectfully submit that, on any fair assessment of the second proceedings, having regard to what has already occurred and the evidence and the procedures that have been explored, that there is material duplication. Accepting that the first proceedings, in a sense, the factual matrix was broader. The second proceedings: the factual matrix was litigated within the factual matrix of the first proceedings, we submit, and that it’s oppressive to have to respond a second time to that factual material, even if it’s framed for a different purpose or cast in support of a different cause of action.

78    Counsel for the Yammine parties resisted the submission that the whole of the factual dispute was before the court in Lantrak 1.

The primary judge’s reasons

79    After introducing the parties, the issues in the two proceedings, procedural aspects of Lantrak 1 and the inter-solicitor correspondence in late 2021 and early 2022, the primary judge set out the applicable principles. As the primary judge identified, the leading case on abuse of process is UBS AG v Tyne (2018) 265 CLR 77 (UBS). I will return to the applicable principles below.

80    The primary judge’s consideration proceeded in three parts: first, observations regarding the two proceedings; secondly, consideration of “Mr Yammine’s explanation for bringing the proceeding late”; and finally, his Honour’s conclusions.

81    The primary judge accepted that the causes of action in the two proceedings did not arise from precisely the same facts and were “in a sense separated in time” but described them as having “significant interrelationship”: PJ [69]. The primary judge then proceeded to make five observations about the two proceedings, and lastly concluded that there did not appear to be any credible reason why the claims brought in Lantrak 2 were not brought in Lantrak 1 (which conclusion introduced the topic of “Mr Yammine’s explanation for bringing the proceeding late”).

82    In the primary judge’s view, there was “significant overlap in the material facts between the breach of fiduciary duty and unjust enrichment claims in the present proceeding and the claims in the first proceeding (other than the non-compete claim)”: PJ [70]. That overlap was said to arise particularly from the fact that, in Lantrak 1, the purchase price of $35 million was said to have been arrived at based on the earnings of the Lantrak NSW business. This was said to have required detailed consideration of the accounting in, and profits of, the business. The primary judge was of the view that “[t]hese matters are necessarily material to the breach of fiduciary duty and unjust enrichment cases in the present proceeding”.

83    The next point the primary judge noted was the overlap in evidence in the two proceedings. His Honour there referred to the evidence given in Lantrak 1 as to the formation of the commercial relationship including the transfer of the RTS business to Lantrak NSW: PJ [71]. That evidence was said to be relevant not only as context, but also on the witnesses’ credit, and Mr Yammine’s stated manner of doing business on a handshake, without formal documentation.

84    The primary judge referred also to the fact that the two principal witnesses, Mr Yammine and Mr Liemant, were cross-examined at length in Lantrak 1 and findings would likely be made regarding their credit: PJ [72].

85    The primary judge considered that, not only was there a risk of conflicting findings, but “the respondents are vexed on the same issues twice”, as to which his Honour stated that (PJ [73]):

the respondents have given extensive discovery on those issues, they have had to consider detailed outlines of evidence by the applicants that cover those issues, they have prepared detailed outlines of evidence in response, and they have prepared for and dealt with those issues at trial. There is no doubt that it would have been considerably less burdensome on the respondents to have had to deal with all the claims in one proceeding, and that it would be substantially wasteful to them to have to deal with them separately.

86    The final observation made about the two proceedings was that, although the parties were not exactly the same, the commercial interests on either side were identical: PJ [74].

87    As no issue was raised in the appeal regarding the primary judge’s criticisms of Mr Yammine’s explanation, it is not necessary to summarise the primary judge’s reasons for concluding that Mr Yammine’s explanation was inadequate in some respects.

88    In setting out his conclusions, the primary judge’s view was that “the claims that are the subject of the present proceeding should have been brought in the first proceeding, or at least early enough to have enabled them to be heard simultaneously with the first proceeding”: PJ [93]. His Honour inferred that the applicants chose not to bring the Lantrak 2 proceeding at the time of, or shortly after, their solicitor’s correspondence in December 2021 “so as not to imperil the trial dates of the first proceeding”: PJ [94]. While his Honour described that as a “forensic decision” the applicants had to live with, it was “not necessarily a decision taken so as to give the applicants a forensic advantage by bringing the present proceeding separately and later”: PJ [94].

89    The primary judge found that, unlike the situation in UBS, “there is no evidence in the present case that there was ‘tactical manoeuvring’ by the applicants in not bringing the present claims much earlier, if that phrase is taken to have a pejorative connotation”, but noted that a finding of abuse of process may be made even in the absence of “‘tactical manoeuvring’ in a pejorative sense”: PJ [95].

90    In addition to referring to the respondents being vexed by having to deal with the Lantrak 2 proceeding separately, the primary judge concluded that “public resources committed to the administration of justice will be wasted by the two proceedings being heard separately”, observing that, due to credit issues at stake, it would be inadvisable for the same judge to hear and determine Lantrak 2: PJ [96].

91    The primary judge then returned to s 37M of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act). Given the prominence of s 37M in the applicants’ arguments, I will set out his Honour’s conclusions on that matter in full (PJ [97]):

There is no sense in which the applicants’ bringing of the claims in the present proceeding in a separate proceeding and too late for the two proceedings to be heard together is consistent with the overarching objectives of the Court’s practice and procedure provisions as expressed in s 37M of the FCA Act, and as required of the applicants by s 37N(l). To allow the present proceeding to continue would not constitute the efficient use of the judicial and administrative resources of the Court, it would detract from the efficient disposal of the Court’s overall caseload and it would not contribute to the disposal of proceedings in a timely manner.

92    After rejecting a submission that the respondents could have raised the issue if they were concerned about there being a separate proceeding, the primary judge concluded as follows (PJ [99]):

I therefore consider that both the alternative conditions for the enlivening of the power to permanently stay proceedings identified in UBS at [1] are established in this case. For the present proceeding to continue would occasion unjustifiable oppression of the respondents, and it would serve to bring the administration of justice into disrepute. The stay is justified on either basis, and it is compelled by both together.

93    The primary judge’s reasons do not separately identify which matters his Honour considered warranted the conclusion that the administration of justice would be brought into disrepute, as distinct from constituting an abuse of process on the basis that allowing the Lantrak 2 proceeding to continue would occasion unjustifiable oppression of the respondents.

The grounds of appeal

94    The applicants advanced six grounds of appeal, as follows:

1.     The primary judge:

[(a) and (c) were deleted]

(b)     erred by applying too broad a test when considering the circumstances necessary for an abuse of process, in particular by elevating to a determinative factor the question whether the conduct of the Appellants in commencing the second proceeding was inconsistent with the objectives expressed in s 37M of the Federal Court of Australia 1976 (Cth).

2.     The primary judge:

(a)     erred in finding (at [35] and [71]) that in the first proceeding the alleged terms of the dissolution of the commercial relationship between the Yammine and Liement interests were based in part on the profits earned by the Lantrak NSW business;

(b)     erred in finding (at [70]) that there was “significant overlap” in the material facts, being the profits of the Lantrak NSW Business, between the Appellants’ breach of fiduciary duty and unjust enrichment claims in the second proceeding and the Applicants’ claims in the first proceeding (other than the non-compete claim);

(c)     should have found that:

(i)    in the first proceeding, the alleged terms of the dissolution of the commercial relationship between the Yammine and Liement[sic] interests were based in part on the EBIT (earnings before interest and tax) of Lantrak NSW; and

(ii)     in the second proceeding, it will be necessary for the court to determine the net profits of Lantrak NSW (or its business), as opposed to its EBIT, in order to determine the Appellants’ entitlement to dividends from Lantrak NSW, their claim for the $3 million component of the $5 million purchase price for the RTS Business, their breach of fiduciary duty claims, and their account of profits claims.

3.     In considering whether to stay the second proceeding on the grounds that it constituted an abuse of process, the primary judge erred in not placing any, or sufficient, weight on the following circumstances:

(a)     the parties in the first proceeding and second proceeding were different as set out at [6] to [8];

(b)     the Appellants’ claims in the second proceeding, and the relief they seek in the second proceeding, as set out at [14] to [27] are substantially different to the claims of the Applicants in the first proceeding and the relief the Applicants seek in the first proceeding as set out at [30] to [36];

(c)     the Appellants’ claims in the second proceeding as set out at [14] to [27] will not be determined in the first proceeding;

(d)     the Appellants’ claims in the second proceeding do not arise from precisely the same facts as the claims in the first proceeding as the court found at [69];

(e)     in the second proceeding, the Appellants will need to adduce evidence not adduced in the first proceeding and will need to adduce evidence from witnesses who did not give evidence in the first proceeding;

(f)     insofar as there will be an overlap in the evidence in the first proceeding and the second proceeding, the overlapping evidence was relevant only “by way of context” and to “witnesses’ credit and [the First Appellant’s] stated usual or common manner of doing business” in the first proceeding as referred to at [71] but will be directly relevant to the facts in issue in the second proceeding;

(g)     the Appellants did not obtain a “forensic advantage” by not bringing their claims in the first proceeding or by not commencing the second proceeding in sufficient time for the first proceeding and the second proceeding to be heard together as the court referred to at [94];

(h)     the Appellants did not engage in “tactical manoeuvring” in a “pejorative sense” by not bringing their claims in the first proceeding or commencing the second proceeding in sufficient time for the first proceeding and the second proceeding to be heard together as the court found at [95]; and

(i)     before the first proceeding was brought to completion, the Appellants had informed the Respondents that the claims the subject of the second proceeding were yet to be resolved as referred to at [56].

4.     The primary judge erred in finding at [99]:

(a)     the second proceeding constituted an unjustifiable oppression of the Respondents to the second proceeding;

(b)     the second proceeding serves to bring the administration of justice into disrepute;

(c)     the second proceeding constituted an abuse of process; and

(d)     the second proceeding should be permanently stayed.

5.     Having regard to the matters in paragraph 3 above, the primary judge should have found:

(a)     the second proceeding was not so unfairly and unjustifiably oppressive, or did not involve unacceptable injustice or unfairness, to the Respondents to the second proceeding as to constitute an abuse of process;

(b)     the second proceeding did not constitute an unjustifiable oppression of the Respondents to the second proceeding;

(c)     the second proceeding did not serve to bring the administration of justice into disrepute; and

(d)     the second proceeding should not be permanently stayed.

6.     Alternatively to paragraph 5 above, the primary judge erred in finding that, on the facts before the Court:

(a)     the Appellants bringing their $5 million claim in the second proceeding set out at [21] and [22] constituted an abuse of process; and

(b)     that claim should be permanently stayed.

Whether leave to appeal is required: interlocutory or final decision

95    The applicants contended that an order permanently staying a proceeding on abuse of process grounds ought to be regarded as a final order where the abuse lies in the making of a claim which ought to have been advanced in earlier proceedings (cf abuse of process where no cause of action is disclosed, or a claim is frivolous or vexatious). While acknowledging the lack of direct authority supporting that position, the applicants urged it on this court on the basis that the principles by which an order may be made staying a proceeding as an abuse of process of that kind are informed in part by the same considerations of finality and fairness that inform the doctrine of estoppel (citing Gageler J in UBS at [62]). While the applicants applied for leave to appeal, they urged this court to conclude that no leave is necessary.

96    The respondents contended that the decision of the primary judge was interlocutory and leave is required, citing Re Luck [2003] HCA 70; (2003) 203 ALR 1 (Re Luck). They accepted, however, that as the practical effect of the stay is finally to determine the rights of the parties, a prima facie case exists for granting leave to appeal: citing Tyne v UBS AG [2016] FCA 241; (2016) 338 ALR 624 and Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564. They submitted, however, that the Yammine parties nonetheless failed to demonstrate that the reasoning of the primary judge was attended by sufficient doubt to warrant the grant of leave.

97    In Re Luck, McHugh ACJ, Gummow and Heydon JJ said as follows (at [9]) in concluding that, inter alia, an order staying an action as an abuse of process is an interlocutory order:

Given the long-established English rule, the decision in Tampion [v Anderson (1973) 3 ALR 414] and our decisions in Pye [v Renshaw (1951) 84 CLR 58], Hall [v Nominal Defendant (1966) 117 CLR 423], Carr [v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246] and Bienstein [v Bienstein [2003] HCA 7; (2003) 195 ALR 225], we see no valid reason for departing from the rule laid down in Tampion. An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.

98    In relation to Bienstein v Bienstein [2003] HCA 7; (2003) 195 ALR 225 at [25], in Re Luck their Honours said (at [4], emphasis in original, internal footnotes omitted):

As McHugh, Kirby and Callinan JJ stated in Bienstein v Bienstein, the usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties in a principal cause pending between them. That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.

99    Re Luck concerned an appeal against a decision of Gleeson CJ refusing leave to issue a writ of summons and statement of claim on the basis that the statement of claim disclosed no cause of action against any defendant. As such, it was not an abuse of process case of the kind that the applicants urged be regarded as final. Nevertheless, by being refused leave to issue the writ and statement of claim, Ms Luck was prevented from pursuing the claims she considered that she had. As the order refusing leave did not finally determine Ms Luck’s rights against the defendants, it was interlocutory, and not final: Re Luck at [5].

100    Where an order permanently staying a proceeding on the basis that it is an abuse of process is grounded in res judicata (including by an Anshun estoppel), the order is regarded as final: Dodoro v Knighting (2004) 10 VR 277 at [20] (Callaway JA, Winneke P, Charles, Buchanan and Eames JJA agreeing) referring to Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 (Anshun (No 1)) at 38 (Gibbs J, Mason and Murphy JJ agreeing).

101    In Melbourne City Investments Pty Ltd v Leighton Holdings Ltd [2015] VSCA 235 (Leighton Holdings) at [34], the Victorian Court of Appeal (Tate, Beach JJA and Robson AJA) concluded that it was bound by authority to conclude that a decision of Ferguson J (as her Honour then was) declining a stay on abuse of process grounds was “interlocutory in the sense that it was not capable of engaging the principles of res judicata or issue estoppel”. There, the alleged abuse lay in pursuing proceedings to generate fees rather than to pursue compensation.

102    In Leighton Holdings, their Honours were addressing a case in which the allegation of abuse of process rested on motives (cf the pursuit of a second proceeding raising factual and/or legal overlaps with a previous proceeding). However, as the discussion of abuse of process below illustrates, the case law concerning abuse of process has developed such that there is varying emphasis on motives as against other factors. In other words, there is no bright line between cases where a contention of abuse of process rests on a party’s motives, as against other factors. The decision of the Victorian Court of Appeal in Leighton Holdings confirms that decisions concerning stays on abuse of process grounds which, if granted, would permanently preclude the vindication of asserted legal rights, are interlocutory.

103    What the cases illustrate is that abuse of process cases based on res judicata and Anshun estoppel are regarded as final because, in those cases, there is deemed to have been a final resolution of the issues by way of the estoppel arising from the earlier proceedings. What might have been thought to be a tension between Re Luck and Anshun (No 1) was addressed by the Full Court (Finn, Kenny and Edmonds JJ) in Egglishaw v Australian Crime Commission (2007) 164 FCR 224 at [39]–[44] and other cases, summarised as follows by Brereton JA, Leeming JA and Emmett AJA agreeing, in Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; (2021) 396 ALR 497 (Emmott) at [115]–[117] (emphasis added, internal footnotes omitted):

[115]     As noted by McColl and Meagher JJA in Leybourne [v Habkouk [2012] NSWCA 212], the apparent tension between Anshun (No 1) and Re Luck was discussed by McColl JA in Bracks v Smyth-Kirk [[2009] NSWCA 401; (2009) 263 ALR 522], and previously by the Full Court of the Federal Court (Finn, Kenny and Edmunds[sic] JJ) in Egglishaw v Australian Crime Commission, which concluded that there was no inconsistency between the two High Court decisions but that the difference between them flowed “from the difference between the judgments from which an appeal was brought or sought to be brought”. Anshun (No 1), in their Honours’ view, concerned a case “where an earlier judgment or proceeding preclude[d] a further judgment or proceeding”. Such a case was to be distinguished from “the ordinary case [such as Re Luck], where a proceeding discloses no cause of action, is frivolous or vexatious, or is to be dismissed on some other basis involving no final determination of rights”. In Bracks v Smyth-Kirk, McColl JA accepted the validity of that distinction, as did McColl and Meagher JJA in Leybourne:

The distinction the Full Federal Court drew in Egglishaw between the nature of what we will, for convenience, call a Re Luck and an Anshun (No 1) judgment has been recognised in this Court: Frumar v the Owners of Strata Plan 36957 [[2010] NSWCA 172] (at [36]). The Court of Appeal of the Supreme Court of Victoria has also followed Anshun (No 1) and held to be final in character an order permanently staying as an abuse of process later proceedings which the primary judge held to amount to a collateral attack on the decisions made in earlier proceedings: Kermani v Westpac Banking Corporation [(2012) 36 VR 130] (at [89]–[90]). There is, accordingly, a substantial body of authority which this Court would ordinarily follow supporting the applicant’s position that the permanent stay order the primary judge made in Jacisa’s favour at least was a final one.

[116]     Leybourne was a case in which proceedings had been permanently stayed on the basis that “they were an abuse of process because they sought ‘to agitate in substance … the same if not identical claims against [Jacisa] having consented to judgment in favour of [Jacisa] in … [the first Supreme Court proceedings]’”.

[117]     Thus the cases in which it has been held that a permanent stay is or may be a final order are confined to cases in which there was deemed to have been a final resolution of the issues by way of estoppel arising from earlier proceedings. In other contexts, the authority that a permanent stay is interlocutory for present purposes is overwhelming. Consistently with Egglishaw, that can be explained on the basis that in the latter class of case there has been no final resolution, actual or deemed, of the real issues in dispute between the parties.

104    Against this body of authority, described by Brereton JA as “overwhelming” in Emmott, the applicants’ submissions urged this court to exclude a species of abuse of process case from the ambit of the broader principle articulated by three judges of the High Court in Re Luck. As this is an intermediate court of appeal, extreme caution is required in the recognition of new principles, particularly where they are at odds with long-established authority and seriously considered dicta of the High Court: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 (Farah) at [134] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

105    The High Court in Re Luck described the ambit of interlocutory orders in a way that encompasses the present case. Subsequent decisions (including Emmott and Leighton Holdings) have confirmed the ambit and continued application of Re Luck to orders staying proceedings on abuse of process grounds that do not involve estoppel. Both Emmott and Leighton Holdings are decisions of intermediate appellate courts, from which this court should not depart unless satisfied they are clearly wrong: Farah at [135].

106    While cases involving further proceedings that overlap with earlier proceedings may be abusive and may have that character by virtue of exhibiting features also found in estoppel cases, they are not cases in which there has been a final resolution (actual or deemed) of the issues raised. The authority is clear on that point.

107    For these reasons, in my view, the decision of the primary judge in this case must be regarded as interlocutory. However, for the reasons which follow, there is a clear case for the grant of leave given the serious impact of a permanent stay on the applicants and the doubt that attends the decision of the primary judge.

Legal principles: abuse of process

108    A court’s power permanently to stay proceedings as an abuse of the process of the court is enlivened where either the use of the court’s procedures occasions “unjustifiable oppression” to a party, or where the use serves to bring the administration of justice into disrepute: UBS at [1] (Kiefel CJ, Bell and Keane JJ).

109    Whether conduct rises to the level of abuse requires consideration of all the circumstances. The requisite analysis has been described as a “broad, merits-based judgment which takes account of the public and private interests involved”: Johnson v Gore Wood [2002] 2 AC 1 (Gore Wood) at 31 (Lord Bingham of Cornhill, quoted with approval by the plurality in UBS at [7]).

110    The authorities elaborate on the nature and circumstances in which an abuse of process may be found, and set out methodological approaches to the determination of whether or not the court’s processes have been abused. However, it is important not to proceed so quickly to these matters, or the facts in issue in any particular case, that one loses sight of the fact that those tests and approaches are aids to identifying when the court’s processes are being abused. “Abuse” is a strong word. It directs attention to whether the processes of the court, which carry with them compulsive and adjudicative powers, are being harnessed in a way that involves misuse or abuse of those processes: Gore Wood at 31 (Lord Bingham).

111    Abuse of process is not confined to attempts to re-litigate claims that have already been determined; attempts to litigate claims that should have been litigated in earlier proceedings may also constitute an abuse of process: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [33] (French CJ, referred to by the plurality in UBS at [39]). Nor is “fault” on the part of the putative abuser a necessary condition, such as where a fair trial is impossible due to delay: eg the 29 year delay in Batistatos v Roads and Traffıc Authority of New South Wales (2006) 226 CLR 256, as explained in UBS at [40].

112    While efficiency in the conduct of litigation is vitally important, it is one factor to be considered, with others, in the broad, merits-based assessment. In UBS, the plurality stated that the court must “take into account the procedural laws administered by the court whose processes are engaged”, and identified s 37M of the Federal Court Act as one such provision: UBS at [34] (see also UBS at [139] per Gordon J to similar effect regarding s 37M, although dissenting in the result, and UBS at [38] where the plurality addressed Aon-type considerations).

113    Section 37M sets out the overarching purpose of civil litigation in this court, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The overarching purpose includes the following objectives: the just determination of all proceedings before the Court; the efficient use of the judicial and administrative resources available for the purposes of the Court; the efficient disposal of the Court’s overall caseload; the disposal of all proceedings in a timely manner; and the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

114    Provisions such as s 37M reflect the wider public interests served by the timely, cost effective and efficient conduct of modern litigation.

115    As counsel for the applicants submitted, the distinction between could and should acknowledges that mere inefficiency — incorporating notions of increased time and cost to resolve disputes — does not suffice. If mere inefficiency were determinative of abuse, then the mere fact that claims could have been pursued in earlier proceedings would be enough to render later, separate proceedings pursuing those claims abusive. But that is not the law. In UBS, the plurality made that plain in the following passage (at [43], internal footnotes omitted, emphasis added):

This is not to say that in England or here the circumstance that a claim could have been raised in earlier proceedings makes the raising of it in later proceedings an abuse of process. It is to recognise that in some circumstances the bringing of a claim which should have been litigated in an earlier proceeding will be an abuse and that that may be so notwithstanding that the later proceeding is not precluded by an estoppel.

116    As their Honours stated, it is in “some circumstances” that the later, separate agitation of claims that “should have been” litigated in earlier proceedings will be abusive; but it follows that not every instance in which claims “should have been” litigated earlier will be stigmatised as abusive. Similarly, Gordon J (dissenting in the result) cautioned that a finding that a claim “should” have been raised in earlier proceedings “may” lead to a finding that the later proceedings are an abuse of process: UBS at [156]. A “should” finding will not in every circumstance compel a finding of abuse.

117    The distinction between claims that “could” have been raised in earlier proceedings and claims that “should” have been so raised and which are abusive, was addressed by Lord Bingham in Gore Wood (at 31, emphasis added, quoted with approval by Gageler J (concurring) in UBS at [67]):

It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.

118    In UBS, Gageler J pointed out, by reference to Lord Bingham’s observations, the overlap between abuse of process in such cases, and Anshun estoppel. His Honour went on to identify the Anshun enquiry into “whether the claim sought to be brought in the later proceedings was so relevant to the subject matter of the earlier proceedings that it would have been unreasonable not then to have brought the claim so as to have allowed all relevant issues to have been determined in the one proceeding” as an enquiry that is encompassed within, but not exhaustive of, the abuse of process enquiry: UBS at [69]. It must, however, be recalled that abuse of process is not co-extensive with estoppel and may exist even where no estoppel arises: Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 (Tomlinson) at [26] (French CJ, Bell, Gageler and Keane JJ).

119    In the overall assessment of whether there is an abuse, the significance of considerations relating to efficiency and the protection of the public resources of the court from being squandered may vary with the circumstances. For example, in UBS, the plurality identified “tactical manoeuvring” that “impedes the ‘just, quick and efficient’ resolution of litigation” as something that will not be indulged: UBS at [45]. Likewise, a conclusion of abuse will not be avoided by hiding behind or manipulating the use of different corporate entities under common control: UBS at [45].

120    It should be recalled that it is unjustifiable oppression which constitutes an abuse: Tomlinson at [25]; UBS at [1]. The word “oppression” itself signifies something of substance; not every instance of inconvenience, additional cost or delay can properly be regarded as “oppression”, whether justified or not. What, then, constitutes unjustifiable oppression? While the respondents are correct in their submission that abuse of process cases are not to be determined by treating the circumstances in UBS as a de facto checklist, the features of that case which persuaded the majority that the conduct was abusive nonetheless provide a useful counterpoint by which the conduct in this proceeding may be considered.

121    The oppression of the responding party (or parties) where successive proceedings are brought arose, in the majority’s view, on the facts at issue in UBS. There, Tyne, as trustee, commenced proceedings in the Federal Court of Australia against UBS claiming damages and equitable compensation arising from advice said to have been given to Tyne and related entities, including the former trustee. The former trustee, Tyne and a related company had earlier brought proceedings against UBS in the Supreme Court of New South Wales that not only arose from the same facts, but made substantially the same claims as were advanced in the later Federal Court proceedings. The former trustee and Tyne discontinued their claims in the Supreme Court proceedings, leaving the related company as the only plaintiff, but that proceeding was permanently stayed on the basis that the company was seeking to re-litigate causes of action that had already been determined in the courts of Singapore. Tyne and the company in question were parties to the Singapore proceeding, which gave rise to a res judicata. The primary judge stayed the Federal Court action as an abuse of process. That result was restored (by a four to three majority) by the High Court.

122    In addressing the oppression of UBS, the plurality stressed the fact that the Federal Court proceeding arose out of the same facts and made essentially the same claims as had been made in proceedings that had been discontinued by Tyne and the trust: UBS at [3]. As the plurality noted, it appeared that the trust’s claims had been held back with a view to them being brought in another court if the outcome of the Supreme Court proceedings was adverse to the remaining plaintiff: UBS at [29]. Tyne was found to have perceived a “forensic advantage” in holding back the trust’s claim: UBS at [55]. The plurality also focused on the complete overlap between the two proceedings, finding that “[t]he whole of the dispute between the Tyne-related parties and UBS arising out of UBS’s conduct in connection with Telesto’s investment in the Bonds was before the Supreme Court of New South Wales”: UBS at [57].

123    As to the existence of oppression on the facts before it, the plurality said as follows (at [58], internal footnotes omitted, emphasis added):

The fact that UBS is a large commercial corporation does not deny that permitting the Trust’s claim to proceed will subject it to unjustifiable oppression. That oppression is found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to UBS. At its core is the vexation of being required to deal again with claims that should have been resolved in the SCNSW proceedings. The fact that UBS has not been required to admit or defend the Trust’s claim does not lessen that vexation. Between December 2010 and May 2013, when the SCNSW proceedings were finally determined, UBS was engaged in litigation with a party controlled by Mr Tyne, arising out of its alleged dealings with Mr Tyne in respect of the loss that is claimed by the Trust in these proceedings. On the final determination of the SCNSW proceedings, it was reasonable for UBS to order its affairs upon the understanding that the dispute between it and Mr Tyne, and the entities that he controlled, arising out of those dealings was at an end.

124    It should be noted that the plurality here identified matters in addition to delay and increased costs as constituting the “core” of the abuse, pointing to the emergence of a further proceeding when it was reasonable for UBS to have proceeded on the basis that, after determination of the Supreme Court of New South Wales proceeding, its dispute with Mr Tyne was “at an end”.

125    In concurring reasons, Gageler J also identified whether the defending party was on notice that the conclusion of the first proceeding would not end the dispute, as a relevant factor. In explaining why he disagreed with the Full Court’s conclusion, Gageler J observed that, “[i]n contrast to the circumstances in Johnson, this is not a case in which earlier proceedings were brought to completion against the background of a communicated likelihood of later proceedings being commenced”: UBS at [76]. For a recent example where the circumstances meant that the party asserting oppression would not have considered the dispute at an end following an earlier proceeding, see Orikan Group Pty Ltd v Vehicle Monitoring Systems Pty Ltd [2023] FCA 1031 at [81] (O’Bryan J).

126    As to the second basis upon which further proceedings may be abusive — namely where the administration of justice will be brought into disrepute — the plurality found that “[f]or the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, as Dowsett J found, is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys”: UBS at [59].

Consideration

127    In my view, the primary judge did, as the applicants submitted, apply a broader notion of abuse of process than was articulated by the plurality in UBS. That broader notion elevated efficiency beyond the role ascribed to it in UBS, and also departed from UBS by diminishing the distinction between claims that “could” have been brought in an earlier proceeding, and claims that “should” have been brought in the earlier proceeding. I also accept the applicants’ submission that the primary judge acted on a mistaken view of the facts in relation to the extent of the overlap between the two proceedings and did so in respects that are material in the assessment of whether or not Lantrak 2 was brought in abuse of process.

128    Both of the bases on which I consider the appeal ought to succeed are matters that constitute errors of a kind identified in House v The King (1936) 55 CLR 499 (House v The King). Accordingly, it is not necessary to determine whether, as the applicants submitted, the “correctness” standard of review applies where there is an appeal against a determination that a proceeding is to be permanently stayed as an abuse of process. Moreover, it is not desirable for this court to embark on that question when the High Court is reserved in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (GLJ). The appeal in that case was heard on 8 June 2023. As counsel for the applicants noted, the question of whether an error of the kind identified in House v The King must be demonstrated where the appeal is against an order permanently staying a proceeding as an abuse of process will be determined by the High Court in GLJ.

129    The question of whether a proceeding is to be permanently stayed as an abuse of process falls to be considered having regard to the gravity and consequences of such a conclusion for the initiating party. Prima facie, litigants are entitled to invoke the jurisdiction of this court to determine a genuine dispute that falls within its jurisdiction. Access to the courts of the Commonwealth and of the States and Territories of Australia is an important facet of commercial and private life in Australia, as was acknowledged in Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311. In that case, Barwick CJ and McTiernan J referred (at 319) to the exercise of a “right of access to the courts” (referring to the distinction between regulating the conduct of a person who has commenced proceedings so as to prevent abuse, and preventing a person from accessing the court at all): see also CBRE (V) Pty Ltd v Trilogy Funds Management Ltd (2021) 107 NSWLR 202 (CBRE) at [23] (Bell P, as his Honour then was).

130    The importance of public access to the courts is reflected in the heavy onus borne by those who seek the permanent stay of proceedings on abuse of process grounds. In Williams v Spautz (1992) 174 CLR 509 (Spautz), the plurality (Mason CJ, Dawson, Toohey and McHugh JJ) observed (at 529) that, as is well-established, the onus of satisfying the court that there is an abuse of process is “a heavy one” (quoting Scarman LJ in Goldsmith v Sperrings Ltd [1977] 1 WLR 478 at 498; see also UBS at [136] (Gordon J, dissenting in the result)). In Spautz, the plurality also observed that “the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances”: Spautz at 529. See also Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91 (Dixon J), referred to in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129 (Barwick CJ) and, in the context of Anshun estoppel preventing access to the courts, DOB18 v Ng in his capacity as a Registrar of the Federal Court of Australia [2019] FCA 1575 at [27] (Stewart J), referred to by Mortimer J (as her Honour then was) in AIO21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1105 at [39].

131    In CBRE, Bell P (Basten JA agreeing) drew attention to the exceptional nature of a permanent stay for abuse of process, as follows (at [31], emphasis added):

To the extent that Tomlinson, and UBS following it, contemplate that there may be an abuse of process where a plaintiff (the second plaintiff) commences a proceeding against a defendant who had already been sued by a party unrelated to the second plaintiff on legally or factually overlapping claims, the question arises as to what must be established to justify a conclusion that the second set of proceedings constitutes an abuse of process. The answer must be that the second plaintiff’s conduct is so unreasonable or the continuation of the proceedings would be so unjustifiably oppressive to a party as to bring the administration of justice into disrepute: see Walton v Gardiner (1993) 177 CLR 378 at 393; [1993] HCA 77; Rogers v R (1994) 181 CLR 251 at 286; [1994] HCA 42; Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27 at [15]; PNJ v R (2009) 83 ALJR 384; [2009] HCA 6 at [3]; Tomlinson at [25]; UBS at [69]–[72]. This is a difficult standard to satisfy, and the reason why a permanent stay of proceedings is an exceptional remedy is because it results in the shutting out of a prima facie arguable claim. Access to the courts is not lightly to be denied.

132    As UBS makes clear, where the abuse lies in the initiation of a second proceeding, while the enquiry still takes in motives (such as the tactical manoeuvring and pursuit of forensic advantage decried in UBS), it is the effect of the further litigation on the other party (or parties) and the administration of justice that are the pivotal (but not the only) areas of enquiry. As such, it appears that the role played by the motives of the party initiating the proceeding has diminished since Spautz, when the focus was on identifying whether an improper purpose was the party’s predominant purpose: Spautz at 529 (Mason CJ, Dawson, Toohey and McHugh JJ). That said, there are still cases in which a litigant’s motives ground the abuse: eg bringing proceedings to generate income, rather than to obtain compensation: eg Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd (2014) 45 VR 585 at [5]–[6] and [9]–[10] (Maxwell P and Nettle JA) and Leighton Holdings at [45] (Tate, Beach JJA and Robson AJA). While the approach to determining when a proceeding is an abuse of process has developed since Spautz, the gravity of such a finding, and the heavy weight of the onus, has not been doubted.

The extent of the overlap

133    The applicants accepted that some matters that were the subject of evidence in Lantrak 1 will need to be reconsidered in Lantrak 2, but disputed the extent of the overlap. The applicants called attention to the role of the acquisition of RTS in Lantrak 1 — largely as a matter of background and going to credit on Mr Yammine’s willingness to deal without written contracts — and the nature of the enquiry into the profitability of Lantrak NSW. In relation to the latter point, the Yammine parties submitted that:

The first proceeding focused on Lantrak NSW’s EBIT or operating profit for the purpose of striking the price for the Yammine parties’ shares. The second proceeding will focus on Lantrak NSW’s net profit or earnings per share for the purpose of determining whether the Liemant parties breached their duties to the Yammine parties by causing Lantrak NSW not to pay dividends to the Yammine parties.

134    The Yammine parties contended that the overlap on each point was not significant, such that the proceeding should be stayed, contrary to the primary judge’s finding that there was “significant overlap”: PJ [70]–[71]. There, his Honour concluded (at PJ [70]) that there was “significant overlap in the material facts between the breach of fiduciary duty and unjust enrichment claims in the present proceedings and the claims in the first proceeding (other than the non-compete claim) and (PJ [71]) that there was “significant overlap in the evidence in the two proceedings”, referring to the considerable detail covered by the evidence in the first proceeding regarding the formation of the contractual relationship, and the conduct and profitability of the Lantrak NSW business. The primary judge concluded (PJ [73]) that duplication not only gave rise to the risk of conflicting findings, but would result in the respondents being “vexed on the same issues twice”. While, as the Yammine parties observed in the course of argument, the primary judge did not specify the nature of the issues on which the Liemant parties would be vexed twice, it is apparent from the balance of that paragraph of the primary judge’s reasons that his Honour was referring to factual issues, and not legal issues or causes of action. See also at PJ [96] where his Honour identified the vexation as lying in having to deal with the Lantrak 2 proceeding “separately from the first proceeding”.

135    In my view, it is necessary to address both the overlap in the causes of action arising in each proceeding, and the extent of the overlap in facts and evidence (so far as that may be addressed in the absence of evidence having been put on, or even outlined, in Lantrak 2), recognising the distinction between the two. It will not be sufficient to defeat an abuse of process contention only to identify differences in the causes of action advanced, but differences in the causes of action advanced are relevant and important considerations, as is illustrated by the focus in UBS on the re-litigation of the same causes of action.

136    As to the causes of action advanced (and therefore the issues arising) in Lantrak 2, there is no overlap in the causes of action advanced in the two proceedings. This is not a case where a party is seeking to litigate again a claim that has already been the subject of an earlier proceeding (cf the circumstances in UBS); that was not the source of the abuse of process found by the primary judge.

137    As to the overlap in evidence and material facts, at PJ [70], the primary judge considered that there was a “significant overlap” in relation to the breach of fiduciary duty and unjust enrichment claims, which arose from the detailed consideration of the profitability of Lantrak NSW as part of the Lantrak 1 proceeding. Given that the unjust enrichment cause of action sought to be advanced in Lantrak 2 was complete upon the transfer of the RTS business into Lantrak NSW in early 2017, it is not apparent how there would be any need to address the profitability of Lantrak NSW in relation to that cause of action.

138    In any event, as I have indicated, I accept the Yammine parties’ submission that his Honour mistook the extent of the overlap in relation to the breach of fiduciary duty claims based on the consideration of profitability, for the reasons they advanced. In short, that is because, whereas the analysis of profitability in the course of the Lantrak 1 trial concerned the sale price multiple, what it was anchored to and whether the projected EBIT was realistic, those matters are not the matters of concern in Lantrak 2. The breach of fiduciary duty claim in Lantrak 2 is concerned with the company’s net profit and, in particular, whether the profits of the company were being understated in accounts so as to remove or inhibit the capacity of the company to pay dividends. Those matters, of their nature, seek to go behind, and to interrogate the integrity of, the company’s accounts (cf valuing the business having regard to the available accounts and projections). Lantrak 2 would also explore whether the Liemants made secret profits.

139    The other area of factual overlap identified by the primary judge concerned the entry into the commercial relationship including the transfer of the RTS business to Lantrak NSW. As the primary judge observed (PJ [71]), that evidence was relevant not only by way of context, but also in relation to credit. The entry into the initial arrangement, whereby 50% of the RTS business was to be sold and the RTS business transferred into a new company will constitute the focus of Lantrak 2, insofar as that proceeding alleges a contract and misleading or deceptive conduct.

140    Advancing factual matters raised previously and risk of inconsistent findings do not, of themselves, necessarily render a subsequent proceeding an abuse of process: Trilogy Funds Management v CBRE (V) Pty Ltd [2021] NSWSC 883 at [90] (Williams J, not disturbed on appeal).

141    Accordingly, the fact that there is some factual overlap regarding the initial entry into the parties’ commercial relationship does not necessarily render Lantrak 2 an abuse of process; the nature and significance of that overlap, and the cognate risk of inconsistent findings, must be addressed as part of the normative evaluation. That normative evaluation must, however, also have regard to the parameters of the factual overlap and just how those issues arose in Lantrak 1: here, largely by way of background and as going to credit on the Yammine parties’ case, and opened up further by extensive cross-examination. Viewed in that context, the factual overlap concerning entry into the commercial relationship is not strongly suggestive of abuse in the commencement of Lantrak 2.

142    The Liemant parties submitted that there was ample evidence to support the finding that permitting Lantrak 2 to proceed would have constituted unjust harassment of the Liemant parties. They also submitted that Mr Yammine “had his opportunity to ventilate the claims he sought to pursue in Lantrak 2 [as] he gave evidence and made submissions about the substance of those [the Lantrak 2] claims in Lantrak 1 (and caused the Lantrak parties to respond to that material)”. These contentions mischaracterise the way in which the two points concerning the initial sale of 50% of the RTS business, and the profitability of Lantrak NSW, arose in Lantrak 1.

143    It is to that point that I now turn as, in my view, in cases where a later proceeding is said to be abusive on grounds that include an overlap in evidence and the risk of inconsistent findings, it is important to consider how an asserted overlap arose. While a conclusion of abuse does not require a finding of fault on the part of the party initiating the subsequent proceeding, the existence of an overlap is qualitatively different where it arises from the conduct of the opposing party, who then seeks to raise the overlap in contending that the subsequent proceeding constitutes an abuse of process.

The course of trial: any factual overlap largely of the Liemant parties’ making

144    In this case, the proposition that Lantrak 2 is an abuse of process rests on the conclusion that the claims advanced in that proceeding should have been brought in Lantrak 1. That requires that close attention be paid to the circumstances concerning that proceeding as they were at the time, and not with the benefit of hindsight. That is particularly relevant here where points of overlap arise, at least in part, from the course of the trial in Lantrak 1 and, in particular, the way in which the Liemant parties conducted the trial and the issues they chose to pursue in cross-examination of Mr Yammine.

145    The Yammine parties cannot fairly have been expected to anticipate the course that the Liemant parties would take in the trial of Lantrak 1 through their cross-examination. As I have noted above, virtually all of the transcript said (before the primary judge) to demonstrate the overlap arose from cross-examination of Mr Yammine. Mr Yammine’s own outline referred to the agreement reached for the sale of 50% of the business of RTS to the Liemant interests, and the initial transfer of the RTS business into Lantrak NSW, very shortly, in setting out the background to their later dealings. It was the cross-examination of Mr Yammine that travelled far and wide.

146    That is not to gainsay that Mr Yammine’s evidence in chief concerning the initial transaction did not have a forensic role in Lantrak 1; it did, but that role related to credit on the basis that Mr Yammine’s previous willingness to deal with Mr Liemant without a written agreement supported his case on the outgoing agreement contended for in Lantrak 1.

147    In relation to the operation of Lantrak NSW and its profitability, Mr Yammine’s outline referred briefly to the division of responsibilities — Mr Yammine was in charge of the “front end” and overseeing day-to-day operations, and the Liemants were in charge of the “back end”, including accounts — and referred to profitability in connection with information Mr Yammine received in mid-2019 (long after the alleged deal for the sale of NJA’s interest in Lantrak NSW) which made Mr Yammine question Mr Liemant’s claims not to be able to afford to pay Mr Yammine the amount agreed in full. Mr Yammine’s outline did not go into the profitability of Lantrak NSW as it concerned how the price of $35 million was calculated. Nor did Mr Pinto’s.

148    In his evidence in chief, Mr Yammine gave some evidence about a meeting at PwC’s offices, connected with the alleged agreement to pay $35 million for Mr Yammine’s sale of his interest in Lantrak NSW. That evidence included reference to figures provided to Mr Yammine which bridged a net profit of $1.7 million to a gross profit of $7 million, the multiple to be applied to EBIT to derive value, and Mr Yammine’s then understanding that EBIT was net profit. This evidence drew an objection that the witness should be confined to his outline, and the examination in chief moved on. At a later point, and consistently with the outline, the examination moved on to the information Mr Yammine received in September 2019 concerning the profitability of the overall Lantrak business.

149    Further exploration of Mr Yammine’s understanding of the financial performance of Lantrak NSW all occurred in cross-examination. Likewise, it was counsel for the Liemant parties who picked up and ran with Mr Yammine’s passing reference, in his evidence in chief, to the $2 million of the initial $5 million to be paid for the 50% interest in the RTS business having been advanced by way of loan, and Mr Yammine not having received the further $3 million which was to have been paid by way of dividends.

150    In the course of argument in this court, counsel for the Liemant parties was invited to respond to the point that many of the matters relied upon as going to the overlap for which the Liemant parties contended only arose in the running of the trial in Lantrak 1, and would not have been known by the Yammine parties. The response was as follows:

MR BANNON: But Mr Yammine knew how it was going to come out. And they knew that he was going to lead that evidence from him. Anything we’ve relied upon in relation to that analysis came out of Mr Yammine’s mouth. It was supported by Mr Liemant. But he must have known all of that, and he was the one who said he makes no claim in relation to the 5 million in that proceeding.

151    As was the case when the argument was presented to the primary judge, virtually all of the evidence of Mr Yammine that was relied upon by the Liemant parties in the appeal going to the asserted overlap was elicited in cross-examination. As I have already addressed, Mr Yammine’s evidence in chief regarding the initial transaction was very brief, and provided context for the parties’ later transaction upon exit, as well as bolstering Mr Yammine’s credit in relation to dealing on a handshake.

152    Further, it should be noted that Lantrak 1 was not conducted on the basis that there was any contest regarding the initial sale of the 50% interest in the RTS business. Mr Liemant’s outline of evidence quibbled in some minor respects with Mr Yammine’s account of the meetings which led to agreement being reached for the sale of 50% of the RTS business, but did not take issue with the figure agreed or that the transfer of the 50% interest occurred. Nor did Mr Liemant’s outline foreshadow any significant issue arising concerning the profitability of Lantrak NSW arising from the Liemant parties’ evidence. Mr Liemant’s outline set out a concern about Mr Yammine’s failure to control the debtor profile of Lantrak NSW, but then moved on to the negotiations for the sale of Mr Yammine’s shares in Lantrak NSW, including Mr Yammine’s statements that EBIT of $7 million could be achieved, and receipt of an email from Mr Peeke considering that target to be aggressive.

153    An outline filed by the Liemant parties for Mr Peeke, a consultant, referred only briefly to his expecting he would have reviewed Lantrak NSW’s financial reports and, based on those reports, having formed the view that it was unlikely an EBIT of $7 million could be achieved in that financial year.

154    In short, the Liemant parties’ outlines also did not foreshadow delving into the detail of the financial performance of Lantrak NSW during the period Mr Yammine was involved. To the extent that the evidence did delve into the financial performance, again, it was not a matter that the Yammine parties could really have been expected to anticipate such as to render the failure to include the Lantrak 2 claims in Lantrak 1 an abuse of process. I reject the Liemant parties’ submission that the extent of the overlap involves matters that the Yammine parties chose to put in issue in Lantrak 1. That submission ignores the very substantial extent to which these issues were generated by, and explored by, the Liemant parties through their cross-examination.

155    The point of this is that the Yammine parties did not cast and advance their case in Lantrak 1 in a way that put in issue, or substantively traversed, the factual landscape forming the basis of Lantrak 2.

156    To the extent that the course of the trial resulted in the first transaction (the sale of the 50% interest in the RTS business) and the profitability of Lantrak NSW being explored in evidence in the trial of Lantrak 1 in any detail, that occurred due to the way in which the Liemant parties chose to conduct their case and the extent to which those issues were pursued in cross-examination by their counsel. As I have already observed, where the factual overlap — on which the abuse of process contention advanced by the Liemant parties depended — was largely of the Liemant parties’ own making. I do not consider that the Yammine parties can fairly be said to have omitted to include in Lantrak 1 claims that should have been advanced in that proceeding, such that their commencement of Lantrak 2 constitutes an abuse of the processes of this court.

The Liemant parties’ new argument on appeal: the whole of business valuation issue

157    On the appeal, the Liemant parties’ advanced an argument that, in Lantrak 1, Mr Yammine essentially pursued a claim for the value of the whole of Lantrak NSW on the basis that he had not received any value at all for the transfer of the business of RTS. This then formed the springboard for the submission that “[h]aving sought and obtained a 100% value of business compensation award, it offends the administration of justice to permit the Yammine interests to now pursue a claim based on a 50% interest in the business in addition to the claims already prosecuted”. The Liemant parties also submitted that the two proceedings agitate “substantially the same claim”, namely that “he [Mr Yammine] never received proper value for his contribution to the Lantrak NSW business”.

158    In oral submissions in this court, counsel for the Liemant parties explored the evidence in Lantrak 1 whereby it emerged that the initial $2 million of the $5 million for 50% of the RTS business was “paid” by loan — which appeared to mystify counsel and Rares J alike, and to be news to all the lawyers involved — and that Mr Yammine had not received the further $3 million in dividends. Counsel for the Liemant parties also sought to develop an argument that the $3 million loan referred to in the Heads of Agreement concerning the transfer of Mr Yammine’s interest in Lantrak NSW for $35 million was a loan connected with the initial transaction. This then developed into a submission that the $2 million and the $3 million loan ought to be added back in to arrive at the “true” consideration Mr Yammine received for NJA’s shares in Lantrak NSW. While this submission was developed extensively in the appeal from the judgment in Lantrak 1, it underpinned the submissions made about the intermingling of claims and evidence in the abuse of process appeal.

159    The contention advanced on appeal — namely that Lantrak 2 was an abuse because the claim in Lantrak 1 was for the value of the whole of the business on the basis that Mr Yammine was never paid for the first 50% of RTS on the initial, $5 million deal — was not advanced before the primary judge. Rather, and as set out above, the principal contention advanced before the primary judge was that there was a complete overlap in the facts and evidence. The contention was not put that Lantrak 1 effectively subsumed Lantrak 2 on the “whole of business value” basis alleged on appeal.

160    Nor was the trial before Rares J conducted on the basis that the five times EBIT formulation was arrived at on the basis that something had failed in respect of the first $5 million transaction, and that this fed into the alleged agreement for the Liemant interests to pay $35 million for Mr Yammine’s interests in Lantrak NSW. There was no contention before Rares J in Lantrak 1 that the Yammine parties were seeking compensation for the whole of the Lantrak NSW business because something had failed in relation to the initial, acquisition transaction. On the contrary, Lantrak 1 proceeded on the basis that there had been a transfer of 50% of the RTS business via its transfer into the jointly held new entity (Lantrak NSW) and that negotiations were conducted for the sale of Mr Yammine’s 50% interest in Lantrak NSW.

161    The fact that Lantrak 1 did not proceed on the basis that the Liemant parties advanced on this appeal — viz, that Mr Yammine claimed the whole value of Lantrak NSW and made this claim because he had never been paid anything for the RTS business — was (ironically it might be said) borne out by the following submission made by counsel for the Liemant parties before this court:

Now, your Honour Button J raised with me how this point about the loans, etcetera, and how they were treated under the 50 per cent deal almost fell out of the evidence as opposed to some sort of opening contingency statement. Now, the reason his Honour didn’t undertake that analysis that I took yesterday is because Lantrak 1 was not in issue and it wasn’t required. But if it had been an issue, as it plainly should have been, we would have put precisely what we did yesterday.

162    The central argument advanced on appeal was, in my view, a construct that does not reflect the reality of the Lantrak 1 trial and the way the case was put by either side. It was also not an argument advanced before the primary judge on the abuse of process application.

Other matters

The significance of the solicitors’ correspondence

163    In their written submissions, the respondents were critical of the failure of the applicants, in their submissions, to address the inter-solicitor correspondence, contending that the primary judge correctly gave close attention to that correspondence. What that submission overlooks, however, is that the notification of the additional claims by that correspondence tends against the conclusion that Lantrak 2 is an abuse of process. That is so because the Liemant parties were put on notice that the conclusion of Lantrak 1 was not necessarily the end of the dispute between the parties: see UBS at [76] (referred to above) where Gageler J contrasted the circumstances in UBS with those in Gore Wood where further claims had also been notified. The notification of additional claims also, of its nature, involves candour, in contradistinction with the silent holding back of additional claims and tactical manoeuvring.

Delay and inefficiency

164    Litigants do not have crystal balls, and s 37M does not legislate a counsel of perfection. As at December 2021, the Yammine parties had identified potential claims relating to the inception of the parties’ commercial relationship, and the transfer of the RTS business into Lantrak NSW. The primary judge found that Mr Yammine did not pursue those claims at the time because he did not want to imperil the trial date: PJ [94]. This is consistent with Mr Yammine’s evidence regarding his view that the additional claims could only be pursued in the same proceeding if the Liemant parties were willing to cooperate to achieve that (which clearly they were not). By that stage, the Christmas and New Year vacation was about to commence, and the trial was due to commence in early March 2022. Pressing the introduction of additional, completely new, claims would have faced obvious obstacles.

165    It follows that the choice faced by the Yammine parties at that stage was whether to press on with the additional claims and imperil the trial dates, or proceed with the Lantrak 1 trial, and return to the additional claims at a later time. This is not a case in which one course involves delay and inefficiency, and an alternative course does not. Had the Yammine parties pursued the incorporation of the new claims in Lantrak 1, they either would have failed, or the trial would have been vacated. Clearly the vacating of trial dates involves delay and inefficiency. As such, both options faced by the Yammine parties at that point involved inefficiency and the waste of judicial resources.

166    Of course, had the Yammine parties given fuller consideration to the first transaction well before the trial in Lantrak 1 was approaching, additional claims could have been included without imperilling the trial dates in Lantrak 1. While the Yammine parties cannot escape some criticism on that basis, that circumstance shows that the Lantrak 2 claims “could have” been advanced in Lantrak 1, but does not establish that they “should have”, so as to render their later agitation an abuse of process.

Differences in the parties

167    As the primary judge observed, the overlap in the parties is not complete. That is not a significant consideration in light of the acceptance that the two groups of interests — Yammine and Liemant — were involved on each side in both proceedings: see UBS at [45] and PJ [74].

Conclusion

168    The Yammine parties accepted that there is some factual overlap between Lantrak 1 and Lantrak 2 insofar as the evidence in Lantrak 1 included (as background and as to credit) evidence regarding the initial transfer of 50% of the RTS business, but the overlap is limited when properly examined (cf by the generalised identification of topics). The overlap so far as examination of the profitability of the Lantrak NSW business is concerned is also, on closer examination, more apparent than real. Moreover, to the extent that the overlap contended for arose from the conduct of the trial, it was the Liemant parties that were responsible for taking the relatively limited facts asserted by Mr Yammine, and cross-examining into evidence virtually all of the evidence relied on by the Liemant parties to ground that asserted overlap. For the reasons set out earlier, in my view, it would work a real unfairness on the Yammine parties for their second proceeding to be deemed an abuse of process on the basis that they failed to include the claims in Lantrak 1 when it was the Liemant parties that were responsible for generating, during the trial of Lantrak 1, the evidence now said to ground the overlap that is productive of unfairness and unjustified oppression.

169    Once the factual and evidentiary overlap is examined in this way, it does not support a conclusion that Lantrak 2 was an abuse of process. What, then, is left? While UBS is not a template, such that a case must exhibit the factors that marked the abuse in UBS, it is nonetheless relevant to observe the absence of any of the features that caused the majority to conclude that the second proceeding in UBS was an abuse of process.

170    Here, the causes of action sought to be advanced in Lantrak 2 presented no overlap with the causes of action advanced in Lantrak 1. The Yammine parties were not engaged in any “tactical manoeuvring” (PJ [95]). Nor was the failure to pursue the claims in Lantrak 1, despite having foreshadowed them close to trial in the pre-Christmas 2021 correspondence, a decision taken so as to give the Yammine parties a tactical advantage (PJ [94]). Rather, it was a decision taken, as the primary judge found, to avoid losing the trial dates. As I have noted, however, by that stage, the Yammine parties were faced with two courses of action, both of which involved inefficiencies (losing the trial dates, or running the Lantrak 2 claims separately).

171    The Yammine parties also did not seek to hold back or conceal the further claims, lulling the Liemant parties into believing that, once Lantrak 1 was over, there was nothing left to be resolved between them (cf UBS).

172    There is no doubting — and the Yammine parties did not dispute — that it would have been more efficient had the Lantrak 2 claims been advanced along with the claims in Lantrak 1. While there was little or no discovery in Lantrak 1 concerning the initial transaction at issue in Lantrak 2, it may be accepted that, overall, it would have been more efficient to conduct one discovery exercise than two. Similarly, it may be accepted that it would have been “considerably less burdensome” (PJ [73]) for the Liemant parties to have dealt with all points of dispute between them and the Yammine parties in one proceeding. Court time and judicial resources would also have been more efficiently used had all points of dispute been advanced in one proceeding.

173    All of those matters are true. They are concerned with efficiency. The overarching purpose facilitates the “just resolution of disputes” according to law and “as quickly, inexpensively and efficiently as possible”: s 37M. It is a provision that urges the efficient and speedy resolution of disputes, but it should not be overlooked that it is concerned with the resolution of disputes taken by litigants to the court for resolution. The majority judgments in UBS make it clear that litigants’ private interests are not the only interests at play, and that the public interests involved require consideration of factors of the kind stipulated in s 37M. But it is also clear from UBS that such considerations are one matter to be considered in the normative evaluation. Efficiency is not a privileged consideration that eclipses all before it. Nor does it mean that just because a claim could have been brought in earlier proceedings, it should have, such that the later agitation of that claim is an abuse of process.

174    In my view, the primary judge elevated efficiency in a way that takes the consideration beyond the bounds established by the High Court in UBS. That is particularly evident in his Honour’s conclusion (PJ [97]) that:

There is no sense in which the applicants’ bringing of the claims in the present proceeding in a separate proceeding and too late for the two proceedings to be heard together is consistent with the overarching objectives of the Court’s practice and procedure provisions as expressed in s 37M of the FCA Act, and as required of the applicants by s 37N(1). To allow the present proceeding to continue would not constitute the efficient use of the judicial and administrative resources of the Court, it would detract from the efficient disposal of the Court’s overall caseload and it would not contribute to the disposal of proceedings in a timely manner.

175    The emphasis on efficiency also runs through the primary judge’s observations concerning it being more burdensome and wasteful of the parties’ resources to deal with the claims over the two proceedings than one (PJ [73]), and his Honour’s concern with the respondent being vexed by having to deal with the Lantrak 2 claims separately and the waste of judicial resources involved (PJ [96]).

176    Further, and as I have addressed at length, the overlap in facts and evidence was not so extensive on examination, and to the extent that there was an overlap, it was largely of the Liemant parties’ making.

177    For these reasons, in my view, leave to appeal should be granted, and the appeal allowed.

Associate:

Dated:    26 September 2023

REASONS FOR JUDGMENT

JACKMAN J:

178    This judgment deals both with the appeal from the reasons and orders of the primary judge in Yammine v Lantrak Holdings Pty Ltd (No 2) [2023] FCA 162 (Lantrak I), and also with an application for leave to appeal (which was heard concurrently with the appeal itself) from the orders of a different primary judge in Yammine v Liemant [2022] FCA 1480 (Lantrak II). I will deal first with Lantrak I.

179    The parties in Lantrak I are as follows. The applicants (now respondents to the appeal) are Mr Norman Yammine (Mr Yammine) and his company, NJA Pty Ltd (NJA) (collectively, the Yammine Parties). The respondents at first instance (and now appellants) are Lantrak Holdings Pty Ltd (Lantrak Holdings) and Mr Gary Liemant (Mr Liemant) (collectively, the Liemant Parties).

Lantrak I

The Reasoning of the Primary Judge in Lantrak I

180    After a difficult upbringing, Mr Yammine worked as a labourer for his cousins in a large excavation company, Moits, in Sydney. The primary judge referred to Mr Yammine learning how that business operated, and perceiving that there was a gap in the market for transport logistics. After marrying in about 2012, Mr Yammine and his wife, Ms Mikhael, began a logistics business called “Nojo”, an acronym of their first names. Nojo provided trucks to carry excavated material to landfill sights and its first customer was Moits. In late 2015, Mr Yammine commenced trading through Recycling and Transport Solutions Pty Ltd (RTS), a new business providing road haulage of earth waste, soil and other materials: [9]. I should add that a separate company, RTS Plant & Equipment Pty Ltd (RTS Plant & Equipment) owned the trucks.

181    Mr Liemant and his brother, Mark, conducted the Lantrak Group, which operated prior to 2016 in Victoria and Queensland. The primary judge referred to the Lantrak Group’s predominant business being to dispose of volumes of material for its customers, to act as broker in the civil construction industry for dirt and clean fill materials and to undertake land reclamation projects. Mr Liemant was in his mid-fifties when he met Mr Yammine, who was then in his thirties. The primary judge referred to Mr Liemant as being an experienced, astute and successful businessman: [11]. Unlike RTS, Lantrak used trucks owned by external contractors.

182    For the year ended 30 June 2016, the unaudited financial statements of RTS showed that it had gross receipts of about $12.65 million and recorded a net profit before tax of about $770,000: [14]. In October or November 2016, Mr Yammine met with the two Liemant brothers in Sydney, having learned that the Liemant brothers were seeking to expand their business into the Sydney market: [15]. That was followed by a discussion in a Melbourne restaurant, attended also by Mr Yammine’s accountant, Mr Kalil, and his associate, at which they struck a deal with the following elements: first, RTS’s business would be transferred to a Lantrak-branded company, which in the event was Lantrak NSW Pty Ltd (Lantrak NSW); second, Gary and Mark Liemant would pay Mr Yammine $5 million for 50% of his business, $2 million of which was payable immediately and the balance “by way of earnout”: [16]. It was agreed that the shareholding in Lantrak NSW would be held as to 50% by NJA as trustee of the NJA Family Trust, and 50% by Lantrak Holdings: [3]. That agreement never completed, Lantrak Holdings did not purchase RTS, and Mr Yammine did not receive $5 million: [16]. That first deal was never recorded in a written contract: [3]. Lantrak NSW was in fact incorporated on 20 December 2016 with the shareholding held as had been agreed: [3]. Mr Liemant and Mr Yammine became directors of Lantrak NSW on that date.

183    The primary judge found that, in entering into that substantial transaction without formal documentation, Mr Liemant understood that Mr Yammine had had a limited formal education and that he trusted Mr Liemant, and he later understood that Mr Yammine regarded him as a “father figure”: [19]-[20]. The primary judge found that at this time, it was apparent to Mr Liemant, and through him the Lantrak Group, that Mr Yammine was very trusting of him, both generally and in their business dealings, and that Mr Liemant knew that Mr Yammine took him at his word because they had “broken bread”: [22]. The primary judge referred to the relationship as a “close or trusting business relationship”, but also described it as “non-fiduciary”: [1]. It is apparent from the primary judge’s reasoning that the parties did in fact attempt to reduce the 2016 agreement to writing, and his Honour referred to the delay in finalising the transaction documents: [22]. Indeed, the primary judge referred to the solicitor for the Liemant Parties corresponding about drafts of contractual documents to record the transaction, and expressing concern in an email of 1 March 2017 with the time that that was taking. Mr Yammine’s solicitor responded on 20 March 2017 with substantive corrections to the then draft and proposed a differently expressed transaction which remained undocumented: [26]-[27].

184    The primary judge summarised the matter in terms that, because of Mr Yammine’s trust in Mr Liemant’s integrity, Mr Yammine had given the Liemant Parties part of his business by transferring all of RTS’s operations to Lantrak NSW and then continued to run and expand that business without the Liemant side of the first “deal” actually paying for it: [23]. The primary judge referred to Mr Liemant acknowledging in cross-examination that Mr Yammine had been promised $5 million for a half-share of RTS’s business and, in economic terms, only ever received $1 million in cash, yet Mr Yammine continued in the relationship without questioning why he had not been paid what had been agreed: [23].

185    The primary judge referred to Mr Yammine having confirmed in his evidence that he made no claim in this proceeding that he had not been paid $5 million (a matter which, it will be seen, is central to the Lantrak II appeal), and gave evidence of his understanding that Gary and Mark Liemant had paid him $2 million as the first payment for RTS’s business so that (assisted with finance from the Lantrak Group’s bank, Westpac Banking Corporation (Westpac)) he could use that money to buy a fleet of trucks from a landscape gardening business. The primary judge referred to Mr Yammine’s evidence that, to his understanding, the $2 million payment was not a loan but was so described because there was no contract, and that the payment had occurred in about May 2017 after the formation of Lantrak NSW: [24]. The primary judge referred to Mr Yammine’s understanding that the $3 million balance of the purchase price would be paid to him out of the profits of Lantrak NSW in priority to the distribution of profits equally between the shareholders: [25]. The primary judge referred to Mr Yammine’s explanation of this aspect of the transaction as manifesting Mr Yammine’s “unsophisticated and trusting approach to comprehension of his dealings with Gary and Mark Liemant”: [24].

186    The primary judge concluded that the evidence of the parties’ relationship and dealing to this point demonstrated Mr Yammine having “a degree of commercial generosity and a preparedness (of which Mr Liemant, as a savvy, experienced businessman, was fully cognisant) to rely on what he believed was a ‘deal’ that Mr Liemant (and the Lantrak group) would ‘honour’”: [28]. The primary judge referred to the mutual approach to the relationship based on “breaking bread” or shaking hands, and Mr Yammine trusting Mr Liemant, as a “critical component in the evaluation of what occurred subsequently”: [28].

187    The primary judge referred to the business of Lantrak NSW growing rapidly, and attributed that to Mr Yammine’s energetic exertions in securing more custom: [29]. However, from early 2017 and throughout 2017, Mr Liemant expressed concern to Mr Yammine about the aged trade debtors’ position of the new business: [29]-[30]. On 17 November 2017, the Lantrak Group’s chief financial officer, Ms Sumanada, sent an email to Mr Pinto, a qualified accountant who was Mr Yammine’s personal assistant, attaching the then trade debtors’ ledger which showed that there was then owing about $2.8 million over 90 days past due and another amount of about $1.8 million that would become over 60 days past due on 30 November 2017: [31]. By 22 January 2018, Ms Sumanada was seeking an indication from Lantrak NSW’s in-house accountant of when it expected to receive payment of over $3.08 million outstanding for over 90 days, and $3.03 million that would become over 90 days past due by 31 January 2018: [33].

188    On 7 May 2018, Mr Liemant met with Mr Yammine and told him that the Lantrak Group needed to extend its Westpac facility for trade debtor finance of Lantrak NSW because of the delays in recovering what was due to it: [34]. As a result of that meeting, Mr Yammine instructed his then solicitor, Mr Nehme of Fortis Law Group, to write a letter dated 10 May 2018 to Lantrak Holdings. The letter referred to the meeting of 7 May 2018, the need to extend the Westpac facility and NJA’s willingness (as 50% shareholder in Lantrak NSW) to negotiate for the sale of its shares to Lantrak Holdings, and Mr Yammine’s resignation as a director. The primary judge referred to the letter proposing that there be a term sheet giving Lantrak Holdings an exclusive right, exercisable by no later than 30 June 2018, to agree and execute transaction documents including a share sale agreement: [35]. The primary judge referred to Mr Nehme’s insistence on his letter representing the only basis for the negotiation of a formal contractual arrangement and that the letter was not intended to be binding, as being “in contrast to Mr Yammine’s personal approach to negotiations”. Senior counsel for the Liemant Parties on the appeal drew attention to the fact that the letter stated that that proposal was made on instructions, having referred to Mr Nehme’s clients being NJA and Mr Yammine, and observed (in my view correctly) that the supposed contrast was at odds with the fact that Mr Nehme’s insistence on formality was expressly on the instructions of his clients. In any event, the primary judge found that Mr Yammine understood that if the share sale were to proceed, there would need to be formal documentation, which normally lawyers and accountants would draft: [36].

189    The primary judge found that Mr Liemant had two principal concerns at this time: first, his expectation that the Lantrak Group would struggle to fund an acquisition of Mr Yammine’s interest, and second, that he felt the business depended on Mr Yammine as the person to get sales and he was concerned about Mr Yammine not being in the business: [37]. Mr Liemant told Mr Yammine that, if he sold his shares, Mr Liemant wanted Mr Yammine to continue being involved in the business: [37]. Subsequently, negotiations for a share sale commenced in which Mr Touma of Lionheart Legal acted as the Yammine Parties’ solicitor, and Mr Pinto assisted Mr Yammine: [38]. The primary judge referred to the Yammine Parties accepting that their failure to call Mr Touma warranted the primary judge inferring that Mr Touma’s evidence would not have assisted the Yammine Parties’ case: [38].

190    The primary judge then referred to Mr Liemant’s evidence that in about mid-2018, Westpac indicated that it was no longer prepared to finance Lantrak NSW, in the context of Mr Yammine saying that he wanted to sell his half share: [39]. The primary judge found that that led, in late May 2018, to Mr Liemant approaching corporate finance advisers, O’Connell Partners, who suggested that Alpha Group might wish to assist in him and Mark Liemant acquiring 100% of Lantrak NSW, resulting in Mr Yammine not having any continuing ownership interest. Mr Tromboli was an adviser for Alpha Group. The primary judge found at [40] that Mr Tromboli had the following documents in about late May or early June 2018 to assist in the work Alpha Group was undertaking:

(a)    an unaudited summary of the Lantrak Group’s results for the year ended 30 June 2016 (which excluded Lantrak NSW) showing total receipts of about $237.5 million and a net profit before tax of about $9.8 million;

(b)    a similar unaudited summary of the Lantrak Group’s results for the year ended 30 June 2017 showing total receipts of about $335 million, including about $24.9 million for Lantrak NSW, with a net profit before tax of about $21.825 million, including about $1.75 million for Lantrak NSW and no provision for impairment or bad or doubtful debts;

(c)    a comparable unaudited summary of the Lantrak Group’s results for the seven months to 31 January 2018, showing total receipts of about $220 million, including about $33 million for Lantrak NSW, and a net profit before tax of about $10.4 million, including about $995,000 for Lantrak NSW; and

(d)    an internal Lantrak Group balance sheet as at 31 March 2018 showing net assets of about $41.86 million.

The primary judge also noted that Lantrak NSW’s unaudited financial report for the year ended 30 June 2017 reported similar figures to those included in respect of Lantrak NSW in the Lantrak Group’s above summary of the company’s results for that financial year: [41].

191    The primary judge referred to a meeting on 26 July 2018 at the offices of PricewaterhouseCoopers (PwC) in Sydney between Mr Yammine, Mr Pinto, Gary and Mark Liemant and Mr Dean of PwC. The primary judge referred to this as a high level discussion to explore possibilities, and Mr Dean suggested that the Liemant brothers should deal with PwC’s Melbourne office as that was where they were located. Mr Liemant took up that suggestion: [42].

192    On 21 August 2018, Gary and Mark Liemant, together with Mr Jeraj and Mr Diamond of PwC, met at PwC’s Melbourne offices with Mr Yammine, Mr Pinto and Mr Touma. The primary judge referred to Mr Yammine’s side reiterating his interest in selling his share of the business and the conversation turned to how a value could be ascribed to it. Mr Jeraj led the discussion in which the primary judge found that Mr Jeraj, Mr Diamond and Mr Pinto agreed that a multiple of five times Lantrak NSW’s earnings before interest and tax (EBIT) was an appropriate means of arriving at a value: [43]. The primary judge also referred to Mr Liemant’s evidence that valuation was Mr Jeraj’s area of expertise and that Mr Jeraj told the meeting that businesses of the nature of Lantrak NSW typically sold for a multiple of five times EBIT less debt: [44]. Mr Liemant’s evidence was that Mr Yammine said that he did not understand what was involved in the concept of “less debt” and, after Mr Jeraj explained what he meant, Mr Yammine said that he would ensure that there was no debt at the time of sale: [44].

193    The primary judge referred to the Lantrak Group using a Pronto accounting system to produce management reports, and before the meeting Mr Yammine had seen the Pronto profit and loss report of Lantrak NSW for the 12 months ended June 2018 that was created on 2 August 2018 (Exhibit B). That report recorded total sales of about $63.1 million, a gross profit of about $7.05 million and a net profit of about $1.727 million: [45].

194    The primary judge said that Mr Yammine thought that EBIT or earnings before interest, tax, depreciation and amortisation (EBITDA) meant something like net profits, but had never heard of the concepts of EBIT and EBITDA before this meeting: [46]. The primary judge said that Mr Liemant did not recall Mr Yammine referring to the $7 million as gross profit at the meeting and asserted that “it was quite clear in that meeting that it was $7 million EBIT”. That is, I interpolate, Mr Liemant’s memory of what Mr Yammine was asserting, because the answer by Mr Liemant that “it was quite clear in that meeting that it was 7 million EBIT” was in response to the question: “I suggest to you that Mr Yammine did raise the topic of the gross profit figure at the PwC meeting”: T474.44-47. The primary judge referred to Mr Yammine saying that, on the basis of either Exhibit B or a similar Pronto report for Lantrak NSW used at the meeting, he thought that the business would easily achieve an EBIT of $7 million for the 2019 financial year: [47]. The primary judge then referred to an extract of Mr Yammine’s evidence on that topic, in which Mr Yammine agreed that he was the one who suggested that five times seven was “about the right number”, with the seven coming from the gross profit in the Pronto system: [47]. The primary judge concluded that Mr Yammine’s less than coherent explanation revealed Mr Yammine’s obvious lack of financial literacy, including understanding of accounting concepts such as EBIT: [48]. The primary judge said that Mr Yammine appeared to have understood that EBIT and gross profit were commensurable when he referred to the figure of $7 million, and that the primary judge did not think that anyone at the meeting understood Mr Yammine as being capable of making a reliable prediction of Lantrak NSW’s EBIT or EBITDA (as opposed to profitability) for the purposes of the negotiation: [48].

195    I read those statements by the primary judge at [48] as a reference to Mr Yammine’s misunderstanding of the concept of EBIT, in that Mr Yammine thought that the concept was based on gross profit, rather than the conventional meaning of EBIT being the net profit for a period without deducting payments for interest and tax. Further, I read the primary judge’s finding as to the views of others present at the meeting concerning Mr Yammine’s financial ability as meaning that the others present at the meeting had a proper understanding of the concept of EBIT, namely that it was based on net profits not gross profits. Although the primary judge did not refer to it, the cross-examination of Mr Pinto (Mr Yammine’s personal assistant and a qualified accountant) demonstrated that Mr Pinto understood that a calculation of EBIT based on Exhibit B began with the net profit of about $1.7 million, and then adding back interest (or finance expenses) and tax: T292.34-297.15. Exhibit B records finance expenses in the amount of $539,199.80, and tax (if one includes fringe benefits tax) of $97,498.14, thereby producing an EBIT of $2,364,185.43. There is no evidence that those present at the PwC meeting made that calculation, but the primary judge’s reasoning, which in my view reflects the evidence, is that Mr Yammine was alone in thinking that the EBIT figure was about $7 million. I note at this point that five times an EBIT of $2,364,185.43 is $11,820,927.15, which is relatively close to the purchase price of $13 million struck between the parties on 12 November 2018.

196    The primary judge said that everyone at the meeting used the same financial information, and the Liemant side had experienced accountants, including Mr Jeraj from PwC (whom the primary judge said was not called and whose evidence, it was inferred, would not have assisted the Liemant Parties’ case) to assist them, and Mr Yammine had Mr Pinto, who was also an accountant, to assist him: [49]. The primary judge then found at [49] as follows:

The meeting discussed the potential value of Lantrak NSW as five times the EBIT derived from exhibit B, or a similar Pronto print out, being $35 million, which they all could then use as a basis for the negotiations. Mr Liemant understood at this meeting that Mr Yammine was expecting to receive a price of $35 million for his interest in Lantrak NSW based on what he and his expert advisors from PwC had calculated was an EBIT figure of $7 million. Mr Pinto also understood this, as (I infer), did Mr Touma.

197    With great respect to his Honour, that reasoning wrongly attributes to the others present at the meeting (including experts from PwC) the fundamental and elementary error of Mr Yammine in thinking that EBIT and gross profit were commensurable, and that EBIT was therefore in the amount of $7 million, being the very error which the primary judge had found at [48] was Mr Yammine’s idiosyncratic view. The evidence does support the proposition that those present at the meeting discussed the potential value of Lantrak NSW as five times the EBIT derived from Exhibit B or a similar document, but it was only Mr Yammine who thought that that would amount to $35 million, because he was the only one who thought that the EBIT figure was $7 million. Mr Liemant understood that Mr Yammine was expecting to receive a price of $35 million, because Mr Yammine had been asserting that the EBIT figure was $7 million. But there is no evidence to suggest that Mr Liemant shared that misunderstanding or that Mr Liemant thought that a figure in the order of $7 million for EBIT or $35 million for the value of Lantrak NSW was in any way justified. The reasoning of the primary judge at [49] becomes an important element in the primary judge’s later reasoning, because his Honour proceeded on the basis that there was a consensus among those present at the PwC meeting to the effect that the appropriate EBIT figure was $7 million and the appropriate valuation was understood by everyone to be $35 million. (At one point in his argument, senior counsel for the Liemant Parties drew attention to the fact that the primary judge had given judgment 12 months after hearing the evidence, but that argument was not further developed.)

198    I also note that, although the proposal concerned the purchase of the 50% shareholding in Lantrak NSW held by NJA, the discussions proceeded on the basis that the price would reflect the value of the whole of Lantrak NSW’s business. That oddity appears to stem from the fact that the 2016 agreement for the purchase of RTS by Lantrak Holdings had not been completed, although the shares in Lantrak NSW had been issued as to 50% to each of NJA and Lantrak Holdings. Therefore the parties approached the new proposal on the basis that the Liemant Parties were effectively acquiring the whole of the issued shares in Lantrak NSW. As the value of Lantrak NSW had increased since late 2016, that approach was commercially very beneficial to the Yammine Parties, although the primary judge made no reference to that benefit.

199    The primary judge then said that during the meeting, Mr Liemant told Mr Yammine and the others that the Liemant side would need to obtain funding to enable an acquisition of Mr Yammine’s interest in Lantrak NSW, and that there would be a need for due diligence to be done because the Liemant side had to raise capital: [50]. Mr Jeraj also said that the Liemant side would need to conduct due diligence on the business of Lantrak NSW. The primary judge said that Mr Yammine was unhappy about this, saying that they already knew what the business’s financial position was because they did the back office work: [50]. The primary judge said that the meeting also discussed a possible value of between $12.5 million and $15 million for the trucks owned by Mr Yammine’s interests that Lantrak NSW used in its business, but at that point Mr Liemant’s evidence was that his side was not then interested in acquiring the trucks: [51]. On 22 August 2018, Messrs Yammine, Touma, Liemant and Jeraj met again to further the discussion, but the primary judge made no findings about what was said at that meeting: [52].

200    On 27 August 2018, Mr Touma, being the solicitor for Mr Yammine, emailed a first draft of the proposed heads of agreement to various parties, including Mr Jeraj and Mr Diamond of PwC. The primary judge summarised the draft as follows at [53]. The draft provided that the price of NJA’s shares in Lantrak NSW was $35 million, the price for the business, inventory and trucks was $15 million and $3 million was the price of the units held by Ari Investments Aust Pty Ltd (Ari) as trustee for the Ari Investments Family Trust in the McGraths Hill Property Unit Trust, which owned the land at McGraths Hill where Lantrak NSW’s office was located. The parties were to exchange finalised transaction documents by 6 September 2018. The total consideration in the first draft was $53 million, payable in three instalments being $23 million on 8 October 2018, $10 million on 1 March 2019 and $20 million on 2 December 2019. Mr Yammine was to repay $3 million in loans to Mr Liemant and Mr Yammine would be engaged to provide consultancy services at $10,000 plus GST per week until 2 December 2019. The draft provided that it was not binding and did not create any legal obligations.

201    The primary judge then referred to an email on 28 August 2018 by Ms Sumanada to Mr Liemant providing a draft budget for Lantrak NSW for the year ended 30 June 2019. The primary judge said that this projected total income of about $99.7 million, finance expenses of about $890,000 and a net profit before tax of about $6.2 million, so that if the finance expenses were added back to the net profit before tax to give an EBIT calculation, that would equate to about $7.1 million: [54]. The primary judge then said that on Lantrak NSW’s own internal projections, the $7 million EBIT figure, which the primary judge found the participants had discussed at the meeting of 21 August 2018, was at that time realistic: [54]. The primary judge referred to Mr Liemant’s evidence as to being sceptical about that forecast, saying that Lantrak NSW had never achieved a 6% in profit and the profit was more like 2%, but the primary judge said that he did not believe that evidence: [55]. The primary judge’s reason for rejecting Mr Liemant’s evidence was said to be “because throughout the negotiations of the heads of agreement neither he, nor others on the Liemant side, including their expert in valuation, Mr Jeraj, conveyed any substantive doubt about, or sought to resile from, the use of the $7 million EBIT figure or the $35 million valuation of the shares”: [55]. I have already discussed the fundamental error by the primary judge in [49] in attributing to others at the PwC meeting the idiosyncratic error of Mr Yammine in thinking that EBIT was derived from gross profit rather than net profit. The primary judge said that if Mr Liemant had believed that a realistic EBIT was $2 million, then he would have equated that with a value of $10 million, and his Honour could not understand why Mr Liemant would not have raised this scepticism at the time, rather than proceeding on what he would have had to regard as a gross over-value and allowing everyone involved to waste time and entertain unrealistic expectations based on a misconception: [55]. That reasoning also reflects the primary judge’s error in [49], in that, except for Mr Yammine, everyone involved in the discussions understood that EBIT was based on net profit, and accordingly was in the order of about $2 million. Given that Mr Yammine had a competent adviser in Mr Pinto, it does not seem to me at all surprising that Mr Liemant would have left it to Mr Pinto to explain to Mr Yammine his fundamental misunderstanding, rather than taking on that burden himself. As a separate matter, I note that there was no expert valuation evidence to the effect that a draft budget for the year ended 30 June 2019, which was made less than two months into that accounting period, provided a proper basis for an EBIT calculation to be used to value the business of Lantrak NSW, and there is no evidence that anyone made such a calculation at the time.

202    On 30 August 2018, Mr Diamond of PwC responded to the first draft of the heads of agreement with a second version in mark-up. The primary judge noted that this draft deleted individual pricing for each item (which I interpolate included deletion of the figure of $35 million for the shares in Lantrak NSW), but retained a total price of $53 million payable in three instalments with the values for the items to be inserted: [56]. The primary judge noted that the parties’ representatives exchanged several further drafts of the heads of agreement: [57]. On about 10 September 2018, Lantrak Holdings engaged Mr Peeke, through his company BCQ Holdings Pty Ltd, to provide financial and strategic advice and consultancy services: [58]. On 12 September 2018, Ms Barton of PwC sent a further draft which provided for adjustment of the purchase price to be between $47.5 million and $53 million, depending on variations to be agreed relating to debts associated with certain assets and a loan that Mr Yammine had to repay to Mr Liemant: [59]. The primary judge said that the price continued to include a value for Lantrak NSW of $35 million based on an EBIT of $7 million: [59]. That draft has not been included in the appeal book, which I assume reflects a view held by both parties that the draft is not of any real significance to the appeal, and thus I interpret the primary judge’s comment as meaning that the purchase price of between $47.5 million and $53 million was consistent with an unstated price for the shares in Lantrak of $35 million, which the primary judge thought was based on an EBIT of $7 million. That is consistent with the written submissions of the Yammine Parties on this appeal (at [25]) that there was only one earlier draft of the heads of agreement which included the figure of $35 million. The primary judge then noted that the parties exchanged further drafts on 12 September 2018 until about 9 pm, when Ms Barton emailed the final version: [59].

203    On 13 September 2018, the heads of agreement were signed and exchanged between the purchasing parties (Lantrak Holdings, Earthtrak Pty Ltd as trustee of the Liemant Unit Trust as the land purchaser, and Gary and Mark Liemant) and the selling parties (Mr Yammine, Ari as trustee of the Ari Investments Family Trust as the land vendor, NJA as trustee of the NJA Family Trust as share vendor and Yammine Pty Ltd as business investor and truck sales vendor) (the Heads of Agreement). The individual prices for the shares in Lantrak NSW, the business operated by Nojo (being the owner of the trucks and other transport inventory used in Lantrak NSW’s operations) and the McGraths Hill land were not specified in the total consideration of $47.5 million. The price was proposed to be payable in three instalments, $5 million on execution of binding transaction documents on 27 September 2018, $23 million payable on completion of the sale of the trucks and shares on 29 March 2019 and $19.5 million payable on completion of the McGraths Hill property sale on 2 December 2019: [60]. Lantrak Holdings agreed that it or its nominee would purchase NJA’s 50% shareholding in Lantrak NSW (cl 2.1) and would discharge the debt owing on the trucks of up to $5.5 million as well as paying the price for the trucks, and, by 30 October 2018, would obtain a release for Mr Yammine and Ms Mikhael from the financier of that debt (cll 3.2, 3.3). The Lantrak Group agreed that, in addition to Lantrak Holdings paying for the McGraths Hill property, it would discharge all the debts of the McGraths Hill Property Unit Trust on or before completion by 2 December 2019 (cll 4.2, 6.3(c)). In addition, Lantrak Holdings or a nominee would engage Mr Yammine or a nominee to provide consulting services in the period to 2 December 2019 at the rate of $10,000 plus GST per week (cl 5). Clause 6.1 provided that the parties would negotiate in good faith to finalise the transaction documents to give effect to the transaction contemplated in the Heads of Agreement in preparation for exchange on or before 27 September 2018. Mr Yammine agreed that he would resign as a director of each of eleven companies, including Lantrak NSW, prior to settlement of a debtor finance facility that Lantrak NSW had with Scottish Pacific Business Finance Pty Ltd (Scottish Pacific) (cl 6.2).

204    The parties agreed that the total consideration payable by Lantrak Holdings was $47.5 million and that they would negotiate in good faith with respect to its allocation between the assets being sold (cl 7.1). They agreed that Mr Yammine would repay $3 million to Mr Liemant out of the second instalment due on 29 March 2019 (cll 7.2, 7.3). The deposit of $5 million payable on exchange of the transaction documents was to be non-refundable (cll 10.1, 10.2) and the Lantrak Group, together with Gary and Mark Liemant, would guarantee and indemnify the sellers in respect of the purchasers’ obligations. The Liemant brothers would also give security over real property (cll 10.3-10.6).

205    Clause 11.1 provided that, except with respect to confidentiality under cl 12, the parties agreed that there was no legal obligation on either party to enter into the transactions proposed by the Heads of Agreement.

206    On 14 September 2018, Ms Sumanada emailed Mr Peeke a copy of the Heads of Agreement, details of the Lantrak Group’s finance facilities and Mr Pinto’s contact details to enable Mr Peeke to obtain information about financing for the trucks, as the primary judge said he had earlier discussed with Mr Liemant: [66]. On 18 September 2018, Mr Taylor, a director of PwC’s Mergers and Acquisitions Unit, emailed Ms Sumanada with a daily timetable for the forthcoming five weeks, which he told her that he planned to provide to Gary and Mark Liemant. The timetable envisaged that discussions with potential lenders would occur by 5 October 2018 and with potential investors (referred to as Project Sahara) by 16 October 2018. It programmed that a decision on whether or not to proceed with the transactions with Mr Yammine would occur on 17 October 2018. Under the heading “NSW business acquisition workstreams”, the timetable referred to the drafting and negotiation of a Share Purchase Agreement with the comment “(Lantrak to intentionally delay the timetable)”: [67]. The primary judge referred to Mr Liemant’s evidence that he did not recall seeing that timetable and that the comment as to Lantrak intentionally delaying the timetable did not come from him, and denied that he did delay the timetable intentionally: [68]. The primary judge found that evidence to be implausible, on the basis that Mr Liemant knew that his side still had to raise finance if it were to proceed to an exchange of contracts: [70].

207    On 25 September 2018, Mr Peeke asked Ms Sumanada for a balance sheet and profit and loss account for Lantrak NSW and she forwarded these to him soon afterwards on that day. Those profit and loss accounts were for the year ended 30 June 2018 and the two months ended 31 August 2018. Mr Peeke said that, on reviewing them, he formed the view that it was unlikely the business would achieve an EBIT of $7 million: [71]. The total revenues for each period were respectively about $63.1 million and $18.75 million, and the net profits were about $1.25 million and $850,000.

208    On 25 September 2018, Ms Barton of PwC circulated the first draft of the sale agreement. The primary judge set out the following salient aspects of that draft at [72]. The purchase price remained as $47.5 million, but its allocation between the assets was left blank. The sellers were to enter into a restraint of trade for up to five years (cl 11). There was an entire agreement clause (cl 14.7) and a clause in which the parties acknowledged the receipt of, or the opportunity to receive, legal advice in respect of the sale agreement (cl 14.12). The primary judge found that Mr Yammine did not read this or any other version of the sale agreement, but accepted that he received legal advice from Mr Touma as to its provisions (including the final version): [72]. At [73], the primary judge inferred that Mr Touma gave Mr Yammine all relevant legal advice as to the terms of each version of the sale agreement, and in particular the executed sale agreement. The primary judge found that that advice included the effect of the entire agreement clause “in precluding the ability of any party to assert that the sale agreement was incomplete or that there were other agreements, arrangements or understandings between them (or any of them) that were not contained in its terms”. The primary judge rejected Mr Yammine’s denial that Mr Touma explained to him the effect of the entire agreement clause (which was at cl 14.7 in the sale agreement) before he executed the sale agreement: [74]. However, the primary judge said that whether, and to what extent, Mr Yammine may have listened to or understood a solicitor’s explanation of the terms of the sale agreement was a different question from whether he received such an explanation: [74]. The primary judge expressed the view that Mr Yammine focused on his personal interactive relationship with individuals with whom he dealt, and had little time for paperwork or detail, despite some consciousness of their importance in defining legal rights and obligations: [74].

209    On 26 September 2018, Mr Yammine resigned as a director of Lantrak NSW and the other companies as the Heads of Agreement had contemplated: [75]. The primary judge referred to Mr Yammine’s unchallenged evidence that Mr Liemant had asked him to resign so that the funds needed to settle the deal could be obtained: [75].

210    The primary judge found that before the resignation, Mr Liemant had not told Mr Yammine of any difficulties that the Liemant side perceived or was having in raising finance: [76]. The primary judge then referred to Mr Liemant’s evidence that he understood that, as far as Mr Yammine was concerned, he had resigned on the basis that he expected that the Liemant side would be paying him $35 million for Lantrak NSW: [76]. Although the primary judge did not say so, the cross-examination which elicited that concession (at T477, 482 and 484) also included Mr Liemant’s clear and unequivocal denial as to having promised to pay Mr Yammine $35 million for the Lantrak NSW business (T482). In my view, reading those passages of transcript as a whole, Mr Liemant’s concession that he understood that Mr Yammine expected as at 26 September 2018 that the Liemant side would be paying $35 million for Lantrak NSW was no more than a reflection of what Mr Yammine had been demanding to date, both at the PwC meeting on 21 August 2018 and in his solicitor’s first draft of the Heads of Agreement on 27 August 2018. As I have said, that demand was based on a misconception on the part of Mr Yammine, which no other party to the discussion shared, that the EBIT figure for Lantrak NSW was based on gross profit and therefore was an amount of about $7 million. In my view, Mr Liemant’s concession in that passage of cross-examination cannot be taken as evidence that there was in fact any expression of preparedness on the part of Mr Liemant to pay an amount of $35 million for Lantrak NSW shares, but merely a recognition that that was what Mr Yammine was demanding.

211    The primary judge was critical of Mr Liemant asking Mr Yammine to resign as a director at this time, saying that it was an example of Mr Liemant, without any contractual basis, using Mr Yammine’s trust in him to move Mr Yammine to a position in negotiations that was advantageous to Mr Liemant’s interests: [76]. The primary judge also referred to Mr Liemant’s evidence that he was not keeping Mr Yammine informed of progress on the Project Sahara timetable beyond “some broad discussions”: [76].

212    On 26 September 2018, Mr Touma replied to Ms Barton’s email of 25 September 2018, reminding the Liemant side that the Heads of Agreement provided for the exchange of the transaction documents on the following day. Mr Touma asked for a complete first draft of the transaction documents and also required payment of the first instalment of $5 million by the next day as a sign of good faith and commitment towards the transaction, which could be released to his client on exchange: [77].

213    On 26 September 2018, Mr Peeke sent Ms Sumanada his analysis of Lantrak NSW’s net profit for the year ended 30 June 2018 of about $1.25 million. Although the primary judge did not say so, a net profit of that amount could not conceivably support an EBIT figure of $7 million. On 27 September 2018, Mr Touma and Mr Jeraj discussed the Liemant side’s proposal that Lantrak Victoria draw down $5 million on the Scottish Pacific facility to use as the deposit on the sale agreement, and they exchanged emails about this and progressing the then proposed transaction: [79].

214    On 2 October 2018, Mr Peeke emailed Mr Liemant and Ms Sumanada attaching an estimate that he had made of Lantrak NSW’s results for the first quarter of the 2018/19 financial year. The primary judge referred to Mr Peeke saying that he had had to make estimates because not all of the figures for September 2018 were yet available, nor for that year as a whole: [80]. Mr Peeke estimated that Lantrak NSW would earn about $1.08 million for the quarter and commented in his email that that would make a $7 million target “aggressive”. The primary judge referred to Mr Peeke saying that by then he probably had formed a view that the Liemant interests would not be able to raise finance to do the deal as it was represented in the Heads of Agreement, and had discussed this with Mr Liemant: [80]. The primary judge referred to both Mr Liemant and Mr Peeke agreeing in evidence that Mr Peeke’s estimate was of (net) profit, not EBIT, and that Mr Liemant accepted that if financing and fringe benefits tax expenses were added back to produce an EBIT figure, EBIT for the first quarter would have been $1,266,660: [80]. The primary judge then said that they agreed that using Mr Peeke’s methodology would result in an EBIT of $5,066,640 for the whole year. I note, however, that there was no expert evidence to the effect that an EBIT for valuation purposes could be extrapolated from only three months of figures which were themselves based on estimates. More importantly, there is no evidence or any finding that Mr Yammine or Mr Peeke attempted such an extrapolation and valuation at the time.

215    The primary judge then found that Mr Liemant sought to eschew the “obvious consequence” and result of Mr Peeke’s analysis by saying in answer to a question as to whether Lantrak NSW would be doing more business by the fourth quarter of the year than it was in the first quarter, Mr Liemant said that he would not have exposure to that far out: [81]. The primary judge then referred to Mr Liemant’s evidence that, despite what the figures appeared to show for the 2018/19 financial year to date and forecast, he had a concern with aged debtors that were not being collected and only took the actual results that he had up until the end of 2018 into account: [82]. The primary judge referred to Mr Liemant’s response to the proposition that with an EBIT forecast of about $5 million the value of the business using the multiplier of 5 times was about $25 million, namely that Mr Liemant said that he works on the actual results not the estimates: [82]. The primary judge did not make any finding to the effect that that was not in fact Mr Liemant’s approach, or that it was an unreasonable approach, but merely said that Mr Liemant never discussed Mr Peeke’s estimates with Mr Yammine: [82].

216    On 2 October 2018, Mr Jeraj emailed Mr Touma saying that his clients were not prepared to pay any money to a trust account or pay interest on a deposit until there was a signed contract of sale: [83]. Mr Jeraj said that his clients had started discussions with debt or capital providers who required information about the trucks and forecasts for the 2018/19 financial year profit and loss account and balance sheet for Lantrak NSW. Mr Yammine said that, at this time, Mr Liemant had told him that he needed another week to get the deal done, to which he had agreed: [83].

217    On 4 October 2018, Mr Jeraj emailed Mr Touma informing him that the Liemant side had had preliminary discussions with their debt providers and that those financiers would need to undertake minimum diligence, including seeking market valuations of the trucks, giving a level of comfort on the 2019 EBIT forecast for Lantrak NSW and the contracts in place for customers, waste disposal sites and the like. The primary judge at [84] quoted from Mr Jeraj’s email to Mr Touma as follows:

Our valuation is based on the business making circa $7m this year and the run rate to August indicates a level of risk on the earnings. We therefore need results for Sept and forecast for the balance of the year.

218    The primary judge then said that Mr Jeraj asked for that information, and told Mr Touma that “we will be unable to sign a Sale and Purchase Document if we have no capacity to complete on the transaction. This in fact is misleading conduct.”: [85]. On 5 October 2018, Mr Touma replied, reminding Mr Jeraj that their respective clients had spent a significant amount of time and money in negotiating and documenting the key terms of the deal in the Heads of Agreement, which contemplated the parties exchanging transaction documents on 27 September 2018. Mr Touma said that it was nowhere stated that the sale agreement was conditional upon securing funding: [86].

219    At 12.39 pm on 9 October 2018, Mr Peeke emailed Gary and Mark Liemant a first draft of a proposal to be put to Mr Yammine, proposing a total purchase price of $15 million that would result in a payment to the Yammine interests of a net $12 million. The primary judge explained that Mr Peeke proposed that the first $5 million payable at settlement would be offset by the $3 million “loan” owing by Mr Yammine to Mr Liemant to which the Heads of Agreement had referred: [87]. Mr Peeke proposed that payments of $2.5 million be made 12 and 24 months after settlement and a further payment of up to $2.5 million in the 2018/19 and 2019/20 financial years if future pre-tax profits of Lantrak NSW exceeded $6 million. The primary judge said that the other terms that Mr Peeke drafted made the proposal “even more conditional” [87]. The primary judge referred to Mr Liemant’s evidence that Mr Peeke had prepared the draft proposal at his request, and inferred that Mr Liemant had read that draft before he spoke on the phone to Mr Yammine later on 9 October 2018: [87].

220    Later on 9 October 2018, Mr Liemant and Mr Yammine, who was at the home of his mother-in-law, had a telephone conversation. The primary judge referred to Mr Yammine’s evidence that the 9 October conversation followed several discussions in which Mr Liemant had asked him for more time to exchange a binding sale and purchase agreement beyond the target date of 27 September 2018, saying that Mr Liemant had been assuring him that he would “get this deal done”: [88]. The primary judge then referred again to Mr Liemant’s cross-examination in which Mr Liemant was reminded of his admission that he understood as at the end of September 2018 that Mr Yammine had an expectation that Mr Liemant was going to pay him $35 million for the Lantrak NSW business, and Mr Liemant’s response, “Prior to the phone call where we agreed on a final price for that, yes” (T484). As I have indicated above, I do not read that evidence as providing any support for the proposition that Mr Liemant had expressed a preparedness to pay $35 million for shares in Lantrak NSW, as distinct from Mr Liemant acknowledging the demands which Mr Yammine had been making for a payment in that amount.

221    The primary judge then referred to the context for the 9 October conversation, being that the Liemant side was seeking funding and delaying the preparation of the contracts to give effect to the Heads of Agreement while contemplating a reduction in the purchase price, and Mr Touma was agitating with the Liemant side’s lawyers about the need to move things along: [89].

222    The primary judge found that in the 9 October conversation, Mr Yammine had his mobile phone on speaker so that others, including his wife, Ms Mikhael, and the husband of her sister, Mr Tartac, came to overhear what both men said: [90]. The primary judge said that each of Ms Mikhail and, to a lesser extent, Mr Tartac, was in a close relationship with Mr Yammine and was likely to have discussed with him matters to do with this proceeding, but that none of them was cross-examined to suggest that Ms Mikhael or Mr Tartac contrived with Mr Yammine to corroborate his account, or that Ms Mikhael or Mr Tartac was being deliberately untruthful in giving their evidence as to the substance of the conversation that they overheard between Mr Liemant and Mr Yammine: [90].

223    The primary judge at [91] then extracted a passage of evidence in chief (at T14-15) which his Honour described as Mr Yammine’s evidence of the 9 October conversation. I note that, contrary to the primary judge’s description, the passage which is extracted at [91] was not said by Mr Yammine to have occurred on 9 October, but at some unspecified time or times after signing the Heads of Agreement on 13 September 2018, or possibly after Mr Yammine had resigned as director of various companies on 26 September 2018. The passage was as follows:

then pretty much said to me “look, I don’t think … we can get this done. I can’t raise funds. But I always honour what I sign. You know, we started this on breaking bread, you know, but work out something that I can give you for now, okay, and then I will be able to get the rest. I will work out something so we can get this deal, you know, this deal happening”.

What did you say to Gary? --- Then, basically, by then I was in need of money and I just said “look, Gary, you know, I believe that. If you can give me 10 million ..... $10,000 a week, and then that way at least that will give you a chance to raise the funds. But I won’t go into non-compete, that’s going to be my security for the remainder of what you signed and what you said”, your Honour. Because at that time as well, he didn’t want the trucks no more. … it was just basically the business.

…

And what did Gary say in response to you saying you would take 10 million clear, etcetera. What did he say? --- He said to me “look, write up that part of the deal and - - -

Write up what part of the deal? --- The what we, like, spoke about.

Yes? --- For the first part. He said “look, you know, I always honour what I sign. Just send me something so I can get this deal to move. But I will honour you”. Like, you know, “I will make this work”, you know. And that’s why I believed in him.

“I will honour you, I will make you sweet”, is that … what you said? --- “I will honour you”. “I will honour you”. Like, “I will make this right, I will - - -

“Make this right”? --- Yes. Sorry.

Did Gary say what he was going to make right? --- What he signed in the heads of agreement for the business. So basically if I get the 10 now, then in 12 months he will be able to raise the funds to finalise the 22.

In my view that last sentence was not responsive to the question of what Mr Liemant actually said, as distinct from Mr Yammine’s personal understanding.

224    At [92], the primary judge extracted a passage of the transcript (at T19-20) in which Mr Yammine gave evidence of a particular conversation which he said he recalled more clearly than others, being a conversation when he was at his mother-in-law’s house. That does appear to be a reference to the 9 October conversation. Mr Yammine’s evidence in chief of that conversation was as follows:

Like, he said, “I need the funding to get the deal done.” He goes, “Take something for now. I will always get this deal done that I signed. I will always honour it”. And then, that’s when I said to Gary, “All right. I will draw up this deal, but because I’m waiting for money, I’m not going to sign the non-compete in the agreement. And then when you pay me the rest of the money in 12 months’ time, that’s when I will sign off, and I will give you the non-compete.” That was my security, basically, you know. But that’s why I sent that. That’s – this part of the 35, this was the first part of the 35.

I interpolate that the last three sentences are not evidence of the words spoken in the conversation, but merely evidence of Mr Yammine’s subjective understanding and thought process.

225    The primary judge explained that Mr Yammine’s words in that passage “that’s why I sent that” referred to what he wrote down on a sheet of paper as the points that would comprise what he was prepared to accept, after the 9 October conversation, while waiting for the payment of the balance of the anticipated $35 million price for Lantrak NSW and before entering into a non-compete provision (the 9 October note): [93]. Using his phone at 9.27 pm on 9 October 2018, Mr Yammine sent a photo of the 9 October note to Mr Liemant in a text message. A sheet of paper recorded under the heading “Lantrak deal”, “10 m clear 5 m upfront Friday 5 m 29 March [2019] all taxes paid”. The primary judge interpreted that as meaning that the $10 million was to be paid in two instalments of $5 million each, one on execution and, as in the Heads of Agreement, a second on 29 March 2019, and the Liemant interests would pay any capital gains and other taxes for which the Yammine interests would otherwise be liable: [93].The primary judge then referred at [94] to the other elements of the 9 October note as follows:

    “3 m Debt cleared”.

    “In Good faith”.

    The McGraths Hill property would be transferred to Mr Yammine’s family trust.

    Lantrak NSW would enter into a contract with Mr Yammine’s trucking company, Nojo, to guarantee it the first offer to supply trucks for any work Lantrak NSW needed so that the Yammine interests could sell the trucking business with a contract that ensured it would have valuable work opportunities.

    Mr Yammine would be retained as a consultant to Lantrak NSW for 12 months at $10,000 per week plus GST, a car, phone and toll and petrol expenses.

    Mr Yammine would also be paid a percentage commission on any jobs that he brought in to the overall Lantrak business in any state after the Liemant interests had finished their due diligence.

    Two managers employed by Lantrak NSW, Mr Simpson and Wally (whose surname was not recorded but which I note appears from cl 6.4 of the sale and purchase agreement to be Ghareev) would each be retained and be paid a profit share of 5% or be issued 5% of the shares in Lantrak NSW.

226    The primary judge then stated that unlike the Heads of Agreement, the 9 October note made no provision for the sale by Mr Yammine’s interests of the trucking business and its assets or the McGraths Hill property (the outstanding interest in which, instead, Mr Yammine’s family trust would acquire). Further, unlike the Heads of Agreement, the 9 October note provided that Mr Yammine’s $3 million debt due to Mr Liemant will be cleared “in good faith”: [95]. In addition, the primary judge commented that “of course” the 9 October note made no reference to there being a further element to the proposal, namely Mr Liemant’s promise to pay the balance of the $35 million if Mr Yammine proceeded in accordance with the terms in that note: [96]. In my view, it is difficult to discern in any of the evidence referred to in the primary judge’s reasoning up to this point any basis for a finding that Mr Liemant had promised to pay the balance of the $35 million if Mr Yammine proceeded in accordance with the terms in the 9 October note.

227    The primary judge then referred to the evidence of Mr Tartac as to having heard a conversation that Mr Yammine had with “Gary” on Mr Yammine’s phone’s loudspeaker at Mr Yammine’s mother-in-law’s home at which Mr Liemant had said that he would pay $10 million and “pay the rest later”. At [97], the primary judge quoted the following from Mr Tartac’s evidence in chief as to what Mr Liemant said to Mr Yammine in that conversation:

to take the deal and … he will honour the rest of the moneys that – that was owed to him … in due course. And I remember that Gary was saying that “I won’t let your family down. I won’t, I won’t. I’ll definitely pay you.”

228    The primary judge then stated that “Mr Tartac said that Mr Liemant told Mr Yammine to take the $10 million and that he would pay the balance of the $35 million later”: [98]. In my view, however, Mr Tartac did not actually give evidence that Mr Liemant expressly said that he would pay a total of $35 million. In his evidence in chief, Mr Tartac said that it was Mr Yammine at the start of the conversation who was actually saying “$35 million”, and it was Mr Liemant’s response that Mr Yammine should “take the $10 million now and I will pay the rest in due course”: T362.42-45. Mr Tartac gave substantially the same evidence in cross-examination, that it was Mr Yammine who said “I want the whole 35 now” and then Mr Liemant said “look, take the 10 now and I will pay you the rest in due course”: T366.2-3. The references in Mr Tartac’s evidence as to the use of the words “the rest”, in circumstances where Mr Yammine and Mr Liemant had not actually agreed upon a price for the shares in Lantrak NSW, may have meant the difference between $10 million and whatever figure was ultimately agreed between the parties for the sale of those shares. In my view, that is the better interpretation of the words which Mr Tartac attributed to Mr Liemant. The words “the rest” would only be a reference to $35 million in circumstances where Mr Yammine and Mr Liemant had reached an agreement or consensus as to the price which was being demanded by Mr Yammine, as to which there is no evidence. The primary judge then continued at [98] by referring to Mr Tartac’s evidence that Mr Liemant said to Mr Yammine to “take the 10 million” and he would “fix the rest of it up in due course”. The primary judge also referred to Mr Tartac’s evidence that on other occasions he heard other conversations on loudspeaker between Mr Yammine and Mr Liemant to similar effect: [98]. The primary judge accepted the submission by the Liemant Parties that Mr Tartac was the only witness who gave evidence that Mr Liemant first proposed the figure of $10 million: [98].

229    The primary judge then referred to the evidence of Ms Mikhael to the effect that in the 9 October conversation, Mr Liemant said that he could not raise the funds to pay $35 million and said to Mr Yammine: “take something for now and I will honour the rest. Just give me a number now and I will honour the rest”: [99] (T385.43-386.2). The primary judge then referred to Ms Mikhael’s evidence that Mr Yammine asked for “10 million clear …add up to 13, and then you can pay me the 22 within 12 months” (T386.4-14). Ms Mikhael did not give any evidence as to any response by Mr Liemant to that proposition by Mr Yammine, although the primary judge did not refer to that gap in the evidence. The primary judge then referred to Ms Mikhael recalling that Mr Yammine asked for a weekly $10,000 consulting fee as “the reassurance of the 12 months” in which Mr Liemant could raise the balance of the $35 million price: [99]. That appears to be a reference to the cross-examination of Ms Mikhael (at T409-412). However, nowhere in that passage or elsewhere in Ms Mikhael’s evidence did Ms Mikhael give express evidence to that effect. In answer to a question put by the primary judge as to whether Ms Mikhael was giving evidence of her understanding or evidence of what Mr Liemant told Mr Yammine that she overheard, Ms Mikhael replied:

The conversation was Gary said, “Take something for now, and I will honour the rest later. Just take something for now. I can’t get the funds for the $35 million.” (T411.17-21).

230    The primary judge then referred to Mr Liemant’s evidence in chief that he did not know that the 9 October conversation had occurred with Mr Yammine on speaker phone. Mr Liemant said that Mr Yammine called him and, after the two men discussed Mr Liemant’s attempts to raise funds, Mr Yammine said “It’s not going to happen, is it, Gaz?” Mr Liemant said that he replied, “No, it’s not. I can’t see it happening” and after a pause, Mr Yammine said, “well, would you take 10?”. Mr Liemant testified that “I was quite taken aback” but responded “well, that sounds more realistic. Let me have a look at it”: [100]. The primary judge referred to Mr Liemant’s understanding that the discussion concerned the price of the 50% shareholding of the Yammine interests in Lantrak NSW, and also that Mr Liemant did not remember discussing in the 9 October conversation keeping Mr Yammine involved in the business, but accepted that was possible. The primary judge referred to Mr Liemant’s denial that he said that he would pay the remainder of the $35 million at a later time, and referred to Mr Liemant saying that at that stage he considered that the $35 million price was too high and that $10 million “would be more realistic for what we were achieving … having a multiple of five [times] of results in mind”: [100].

231    The primary judge then referred to Mr Liemant’s evidence that if, contrary to his recollection, he had said something in the 9 October conversation to the effect that he would pay the $22 million later, then he would have had that documented and that his company would have to look at funding options because it did not have the capacity to fund that sort of money: [101]. The primary judge then referred to Mr Liemant’s evidence in cross-examination that Mr Yammine had implied that he needed money, and denied that Mr Yammine said that he would take $10 million clear now and that Mr Liemant could pay the balance later, and further denied that his only explanation for why the parties moved from $35 million to $10 million clear was because he understood that Mr Yammine needed money: [101].

232    The primary judge accepted that one reason why Mr Liemant wanted the price reduced was that his side did not have the capacity to pay $35 million at that time: [102]. However, the primary judge said that it “beggars belief” that Mr Yammine would have arrived at his first offer of taking a net $10 million without any bargaining or enquiry of Mr Liemant about what he could afford to pay, especially given the background of the Heads of Agreement: [102]. The primary judge did not accept Mr Liemant’s evidence that Mr Yammine did not say directly to him that he needed money: [102]. The primary judge then referred to Mr Liemant denying that he had any discussion with Mr Yammine at any time in October 2018 in which Mr Liemant said that he would honour the payment of a total of $35 million, or pay the balance of $22 million in 12 months at a time later than paying the $10 million clear: [103].

233    The primary judge then turned to the 9 October note, which had not been discovered by Mr Yammine: [104]. The primary judge said that Mr Yammine’s failure to inform his lawyers about the 9 October note or to explain why he did not do so, together with his initial incorrect assertion that he had informed them, caused his Honour considerable concern as to Mr Yammine’s veracity, and inferred that Mr Yammine did not give the 9 October note to his lawyer because it may have damaged his case: [105]. The primary judge said that this episode made his Honour cautious to scrutinise Mr Yammine’s evidence carefully in assessing the reliability of his account and that while Mr Yammine was not a person with a mastery of the detail of commercial negotiations, his Honour found him to be generally honest and his evidence reliable, except when his Honour made specific findings not to prefer or accept what he said: [106].

234    The primary judge said that in its terms, the 9 October note told strongly against any suggestion that Mr Yammine and Mr Liemant had a discussion in which Mr Liemant said anything about the $22 million or balance of the $35 million being paid later or in addition to the $10 million “clear”: [107]. The primary judge said that at the time of the 9 October conversation, neither man knew what the difference would be between the $35 million price for the Yammine side’s 50% interest in Lantrak NSW, that was used to arrive at the price in the Heads of Agreement, and the amount of $10 million clear of any liability that any of the vendors would have for capital gains tax. However, the primary judge said that because Mr Yammine was agreeing to repay the $3 million loan to Mr Liemant out of the sale proceeds on the basis that he would receive $10 million clear of that and any tax liability, the discussion may have included mention of $22 million as a “balance”, being the difference between $35 million and $13 million, even though that did not take account of the further reduction for the tax payable: [107]. I note that finding was expressed in the language of mere possibility (the operative expression being “may have”).

235    The primary judge then stated that his Honour was “comfortably satisfied that, despite Mr Yammine’s failure to discover the 9 October note and incorrect evidence about what he had given to his lawyers, in their conversation on 9 October 2018, Mr Liemant said to Mr Yammine that he would pay the balance of the $35 million for Lantrak NSW later if Mr Yammine went ahead with a deal in which he would be paid a net $10 million and would enter into a consultancy agreement at $10,000 per week without a non-compete clause, while Mr Liemant went about raising finance for the balance”: [108]. The primary judge referred to Ms Mikhael and Mr Tartac not having been active participants in the 9 October conversation, but said that each gave a “broadly consistent account of its content”: [109]. In forming that conclusion, the primary judge said that he had taken into consideration the Liemant Parties’ submission that Ms Mikhael’s evidence was unreliable because of her reference to the conversation including what was not then known, in that the figures of $13 million and $22 million that she used must have taken account of the taxation liability, which was not known or quantified when Mr Yammine and Mr Liemant were speaking in the 9 October conversation. The primary judge said that Ms Mikhael’s evidence was not generally unreliable, although she may have used the figures that later emerged erroneously in recounting what she heard of the 9 October conversation: [109]. The primary judge then inferred that Ms Mikhael blended more than one conversation or attributed her later knowledge or understanding of the numbers to what she recounted as having heard on 9 October 2018 as the conversation progressed, and that that was likely to have occurred because she and her husband would have discussed the overall transaction and their recollection of conversations between Mr Yammine and Mr Liemant many times: [109].

236    The primary judge then said that it would be “out of all experience” if the three witnesses to the 9 October conversation (being Mr Yammine, Ms Mikhael and Mr Tartac) gave an exactly identical account of the conversation: [110]. His Honour referred to the observation of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-9 that the words spoken must be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. The primary judge then made the following finding at [110]:

The broad thrust of what each of Mr Yammine, Ms Mikhael and Mr Tartac recalled as having been said in the 9 October conversation was consistent in attributing to Mr Liemant the “promise” that if Mr Yammine proceeded on the basis of Mr Liemant paying $10 million now, he would “honour the rest”.

I note at this point that that formulation does not contain any reference to a figure of $35 million as being the total amount to be paid by the Liemant interests. In my view, the amount (if any) of “the rest” depended on the outcome in the future of the parties’ negotiations, and the figure of $35 million was Mr Yammine’s repeated position in the negotiations to date.

237    The primary judge then referred to the evidence of Mr Pinto to the effect that he recalled being in Mr Yammine’s car with him on speakerphone talking to Mr Liemant after he first saw the 9 October note. Mr Pinto said that Mr Liemant told Mr Yammine that “they needed to … execute the transaction, and that he would look at … some sort of way of making up the difference” because Mr Liemant could not “obtain the finance … to fulfil the contract”: [111]. Mr Pinto said that there were “lots of discussions between Gary and Norm with regards to getting the purchase [and] sale agreement … executed”. The primary judge recorded that Mr Pinto said that Mr Liemant suggested that Mr Yammine “take something for now”, they agreed to $13 million and Mr Liemant said that he would “make up the difference [of $22 million] on the back end”: [111] (T280.11-22). The use of the square brackets around $22 million was added by the primary judge. Mr Pinto said that Mr Yammine “agreed to $13 million” and they also discussed consultancy and non-compete agreements: [111] (T280.5, 280.44-5). Mr Pinto said that Mr Yammine and Mr Liemant discussed that, as part of Mr Yammine executing the agreement to purchase the shares, he would then enter into a non-compete agreement but would work out a way of Mr Liemant raising finance: [112]. The primary judge referred to Mr Pinto’s evidence in cross-examination that in a later conversation, Mr Liemant and Mr Yammine arrived at a figure of between $10 and $13 million after taking into account a $3 million component for capital gains tax that would be deducted from the $35 million which Mr Liemant would pay. Mr Pinto said that Mr Liemant and Mr Yammine discussed that Mr Yammine would have “a consultancy agreement … to assist growing the business whilst [Mr Liemant] was looking for the capital”: [112]. The primary judge at [112] then quoted from Mr Pinto’s evidence as follows:

… when they were communicating, Norm said, “Okay, Gary. I will take something for now”. And Gary, you know, would have said, I don’t know what the exact words are, but, say, you know, “this is great … we can work together and get this thing done and then look for capital and whatnot to pay out the balance”.

238    The primary judge accepted Mr Pinto’s evidence that he overheard conversations between Mr Yammine and Mr Liemant, in which Mr Liemant told Mr Yammine that he would look for capital or finance to pay the balance, after the initial payment of $10 million net of the $3 million capital gains tax: [113]. The primary judge said that he was satisfied that, although he did not have an exact recollection of the conversations that he overheard between Mr Yammine and Mr Liemant, Mr Pinto did hear Mr Liemant agree after the 9 October conversation, in effect, that he would pay Mr Yammine the balance of $35 million for the shares in Lantrak NSW later, once he raised the finance, and that, at that time, Mr Yammine would not enter into a non-compete agreement but would work as a consultant in the meantime: [113]. The second of those findings, but not the first, quantifies the “balance” of the amount of $35 million (ie $22 million). The primary judge did not refer to the concessions by Mr Pinto in cross-examination that he did not think that the conversations between Mr Yammine and Mr Liemant which he heard were “specific as to the actual number”, or that Mr Pinto thought there was a “mutual understanding … between the two parties of what the number is”: T312.36-313.3. I note that Mr Pinto tended to resort to giving evidence of what he thought was “a mutual understanding” (T314), which led the cross-examiner to put the following questions:

Just try and remember what they said? --- So what I believe that they said was that – so when they were communicating, Norm said, “Okay, Gary. I will take something for now.” And Gary, you know, would have said – I don’t know what the exact words are, but, say, you know, “this is great, you know, we can work together and get this thing done and then look for capital and whatnot to pay out the balance.”

And did they talk about what the balance was? --- Not specifically the actual balance. (T314.42-315.1).

That is, of course, the passage which the primary judge extracted at [112], except that the primary judge did not go on to refer to the clear concession by Mr Pinto that Mr Yammine and Mr Liemant did not talk specifically about the actual balance. In light of that concession, the finding of the primary judge that Mr Pinto heard Mr Liemant agree after the 9 October conversation that he would pay Mr Yammine the balance of $35 million for the shares in Lantrak NSW later was in error.

239    The primary judge then identified the real issue as being whether, in substance, Mr Liemant entered into a contract or made a representation in the 9 October conversation that, if Mr Yammine agreed to being paid $10 million clear in the immediate transaction instead of the original $35 million, Mr Liemant would “honour” the original deal and pay the balance of the $35 million at a later time: [114]. I note that that formulation of the issue tends to assume that the parties had in fact reached a consensus (ie a “deal”) that the Liemant interests would pay the amount of $35 million in total. That was a matter in issue between the parties, not a matter to be assumed in favour of the Yammine interests. As I have said, in my view, the evidence did not establish any such consensus. The primary judge then said that he formed the clear view that, first, Mr Liemant conveyed to Mr Yammine in the 9 October conversation, and subsequently confirmed in later conversations that Mr Pinto and Mr Tartac overheard, that he would pay the balance of the $35 million at a later time if they proceeded with the transaction along the lines recorded in the 9 October note and, secondly, they proceeded on the basis that Mr Yammine’s security for the payment of the balance was that he would only sign the non-compete agreement when that balance was paid: [115]. I have indicated above the deficiencies in the evidence concerning whether Mr Liemant in fact conveyed that he would pay “the balance of the $35 million at a later time”, as distinct from references to paying “the balance” being references to whatever figure (if any) Mr Yammine and Mr Liemant ultimately agreed upon in the future in their negotiations.

240    The primary judge then dealt with the events leading up to the entry into the sale and purchase agreement on 12 November 2018 (SPA). After 9 October 2018, PwC and Mr Touma prepared several drafts (including the final version) of the SPA and a consultancy agreement, and circulated those to the Liemant Parties and the Yammine Parties. The primary judge said that after 16 October 2018, all of the drafts and the final version which the parties signed on 12 November 2018 had no non-compete provision from Mr Yammine, made no reference to any payment of $22 million at any time, and contained an entire agreement clause: [117].

241    On 11 October 2018, Mr Peeke and Gary and Mark Liemant had a meeting with PwC and Quadrant Private Equity about Project Sahara, and a PwC note of the meeting recorded that:

    Mark Liemant was interested in selling down his stake in the Lantrak Group.

    The Lantrak Group was earning about $20 million EBITDA and, in the year to date, first quarter 2018/19 was ahead of budget with EBITDA of about $6 million.

    All aspects of the business were performing well, with logistics being more stable: [118].

242    On 12 October 2018, Mr Jeraj emailed Mr Touma a copy of a further draft of the transaction documents, other than one for the truck sale which he asked Mr Touma to draft. Those drafts included a sale agreement and a consultancy agreement. The draft sale agreement again included a restraint of trade clause, which Mr Yammine instructed Mr Touma to remove. Mr Yammine said in cross-examination that he told Mr Touma to do this “because Gary has still got to pay me the last bit of the money” and that he “would have told him” that the $22 million was still to come: [119]. The primary judge then referred to the cross-examination of Mr Yammine in which it was put to Mr Yammine that if Mr Liemant had agreed to pay $22 million a year later, and if Mr Yammine had told Mr Touma about that, then Mr Touma would have put the $22 million in the draft sale agreement. Mr Yammine was unable to explain why Mr Touma would not have inserted that in the draft if Mr Yammine had told him about it, responding, “No, I understand how it looks”: T213.24-27. When it was put to Mr Yammine that the only reason for not putting that in was that it just was not part of the deal then, Mr Yammine simply responded, “I disagree”: T213.32-36.

243    The primary judge then said that, damaging as Mr Yammine’s evidence just referred to and the failure to call Mr Touma may appear at first blush to Mr Yammine’s credibility on this crucial issue, Mr Liemant’s evidence at the end of his cross-examination about the omission of the restraint clause, that came about from his discussions with Mr Yammine in October and early November 2018, is an important part of the factual matrix: [120]. In the quoted extract from Mr Liemant’s evidence, Mr Liemant agreed that Mr Yammine said he would not agree to a restraint of trade clause appearing in the executed version of the SPA but denied that Mr Yammine said that he would not give the restraint so he would have some security for the $22 million that was still to come, adding that Mr Yammine said he was not prepared to sign the restraint clause because that was his security in case the SPA did not complete. When asked by the primary judge what he thought he was buying for the $13 million if he did not get a restraint of trade from Mr Yammine, who could then go out the next day after completion and compete, Mr Liemant said that it was investing in the people that were there and it was important to keep the people on side. Mr Liemant pointed out that Mr Yammine was retained on a consultancy agreement for a further 12 months and at the end of that he was hoping to extend it for a further 10 years. Mr Liemant recognised that the majority of the customers of Lantrak NSW were loyal to Mr Yammine, and in the 12 month period of the consultancy agreement he either hoped to renew the consultancy agreement or bring people into the business that they could then continue. The primary judge said that as problematic as Mr Yammine’s evidence appeared at first blush, Mr Liemant’s explanation for the commercial benefit of the $13 million that the Liemant Parties paid for the Lantrak NSW group did not “ring true” to his Honour: [121]. The primary judge referred to Mr Liemant’s view that Mr Yammine was critical to the ongoing performance of Lantrak NSW, and also that a consultancy worth $520,000 (being one year at $10,000 per week) without a non-compete clause was not likely to attract Mr Yammine to keep up his efforts to maintain or generate further growth in revenue and profitability: [121].

244    On 2 November 2018, Ms Sumanada emailed Mr Touma a copy of the management accounts for Lantrak NSW for the three months ending 30 September 2018, which showed that total revenue was about $25.8 million and net profit was about $1.18 million: [122]. The primary judge inferred that Mr Liemant saw and received those contemporaneously. The primary judge then said that if the financing and fringe benefits expenses of about $170,000 were added back to the net profit to produce an EBIT figure, that would equate to $1,477,477.40 or, if annualised, to $5,883,000, and if the agreed multiple of 5 times EBIT were used, the rough value of the interest Mr Yammine was selling was about $29.5 million: [122]. The primary judge referred to Mr Liemant’s evidence in cross-examination that he assumed that the results for the first quarter would be seasonally higher than could be expected for the rest of the 2018/19 financial year, but admitted that he did not know if that were so, and in re-examination, Mr Liemant said that he formed the view by the time of seeing the September 2018 quarter management accounts that there was “definitely a downward trend at the time”: [122]. The primary judge did not accept Mr Liemant’s qualification with which he sought to reduce the likely EBIT for the full 2018/19 financial year: [123]. The primary judge said that Mr Liemant gave no coherent explanation as to why he agreed to remove the restraint provision at Mr Yammine’s insistence: [124]. His Honour referred to Mr Liemant’s knowledge that Mr Yammine’s active participation had been integral to the growth of Lantrak NSW’s business success, and Mr Liemant was an experienced, sophisticated businessman who received specialised expert advice in negotiating the Heads of Agreement and the SPA. The primary judge then said that he did not accept that Mr Liemant thought that the value of $35 million for what Mr Yammine was selling, based on its likely EBIT that the negotiations adopted, was unrealistic or other than a reasonable reflection of its value: [124]. I have indicated above that the negotiations “adopted” a value of $35 million only in the sense that that was what Mr Yammine understood would be paid and was demanding, but there was no consensus on the part of the Liemant interests that that was indeed an appropriate valuation or a price they were prepared to pay. I note that there was no expert evidence to the effect that a reasonably competent valuer would calculate an EBIT figure based on extrapolating from the results of only a 3 month period what figure should be adopted for annualised earnings. Even if that were an acceptable approach to valuation, which I doubt, the primary judge’s analysis would fall some $5.5 million short of $35 million.

245    The primary judge said that the Lantrak Group management accounts for that quarter, available immediately prior to entry into the SPA on 12 November 2018, “arguably” may have warranted negotiating a reduction in the price of $35 million by a figure in the order of $5 or so million: [125]. The primary judge then said the following at [125]:

However, there was no intelligible reason why Mr Yammine, a month before the quarterly accounts became available to Mr Liemant (and remained unknown to Mr Yammine), would have agreed to give up over $20 million from the negotiated value used in the heads of agreement. In chief, Mr Liemant said that when Mr Yammine proposed taking $10 million, “I paused for a minute. I was quite taken aback. I thought it was a considerable change”. Indeed, it would have been an extraordinary change, and one which made no sense, if that was all there was to the negotiation. Like Mr Yammine’s original “sale” of RTS’ business to Lantrak NSW, both men dealt with each other in an unorthodox, almost commercially bizarre, fashion, based on Mr Yammine’s trust in Mr Liemant’s integrity.

That passage proceeds on the basis that there had been a consensus reached between Mr Yammine and Mr Liemant as to the value of shares in Lantrak NSW being $35 million. As I have indicated above, that was what Mr Yammine was seeking, but Mr Liemant never accepted that the value of the shares was $35 million and never agreed to pay that figure. The “considerable change” of which Mr Liemant spoke was a change in what Mr Yammine was proposing. In my view, Mr Yammine’s evidence is consistent with Mr Yammine accepting $10 million “clear” for the time being, with a view to negotiating a further amount with Mr Liemant subsequently, trusting that Mr Liemant would approach those negotiations in good faith, but the evidence given by Mr Yammine does not establish that Mr Liemant had actually conveyed that he would pay a total of $35 million.

246    On 12 November 2018, Mr Yammine and NJA (as trustee of the NJA Family Trust) as sellers, Lantrak Holdings as buyer, Gary and Mark Liemant and 21 companies as guarantors, executed the SPA. The primary judge summarised the provisions of the SPA relevantly as follows:

    The sale shares (as defined) represented a 50% interest in the business operated by the Lantrak NSW Group, comprising 11 companies including Lantrak NSW, the shares in which were defined as the “sale shares” (recital A);

    The sale agreement was intended to be legally binding and the parties agreed to effect the transaction that he contemplated (recital C);

    The sellers agreed to sell, and Lantrak Holdings agreed to buy, the sale shares free from any encumbrances on the completion date, defined as 29 March 2019 (cl 2.1);

    The consideration for the sale of the shares was the payment to the sellers by Lantrak Holdings (as buyer) of the purchase price of $13 million in two instalments, the first of $5 million on or before 29 November 2018 (to be released unconditionally to the sellers on payment) and the second of $8 million on or before 29 March 2019 (cl 3.1);

    Any loans owed by companies that Mr Yammine would continue to own, such as RTS and Nojo, were released immediately and Mr Yammine and Ms Mikhael would be released from any liabilities owed to financiers in respect of the Lantrak NSW Group (cll 4.1, 4.4);

    Mr Yammine would resign as the director of each of the Lantrak NSW Group companies by 29 November 2018 (cl 4.2);

    The parties agreed that the first instalment would be funded by the Lantrak NSW Group drawing down on its debtor finance facility with Scottish Pacific (cl 4.3);

    If the Commissioner of Taxation assessed or re-assessed the aggregate tax payable by Mr Yammine, Ms Mikhael or any beneficiary of the NJA Family Trust at more than $3 million, then Lantrak Holdings and the guarantors would indemnify them for that liability (cl 4.8);

    The sellers gave a series of usual sellers’ warranties (cl 7.1);

    Clauses 11.7 and 11.12 provided, respectively:

11.7 Entire Agreement

(a)    This agreement embodies the entire agreement between the parties     with respect to the subject matter of this Agreement and supersedes     any prior negotiation, arrangement, understanding or agreement with     respect to the subject matter or any term of this Agreement.

(b)    Any statement, representation, term, warranty, condition, promise or     undertaking made, given or agreed to in any prior negotiation,     arrangement, understanding or agreement, has no effect except to the     extent expressly set out or incorporated by reference in this     Agreement.

…

11.12 Legal Advice

Each party acknowledges that it has received legal advice in respect of this Agreement or has had the opportunity of receiving legal advice about this Agreement.

    Mr Yammine’s nominee company would provide his services for one year at $10,000 per week plus GST and expenses.

247    Completion of the sale agreement occurred on 29 March 2019 by payment of the second instalment of $8 million: [127].

248    On 29 April 2019, Mr Liemant and PwC, as auditors, signed the audited annual financial report of Lantrak NSW for the year ended 30 June 2018. The statement of comprehensive income for the audited year ended 30 June 2018 gave a figure for revenue from continuing operations of $62,885,417, profit before income tax of $39,079, and profit for the year of $11,182: [128]. The primary judge did not perform a calculation of EBIT based on those audited accounts, but if one takes the net profit of $11,182, and adds back finance expenses of $388,973 and tax of $27,897, one has an EBIT of $428,052. If one had adopted the valuation method of five times EBIT, that would yield a value of $2,140,260.

249    The primary judge also referred to the 2018/19 audited financial report of Lantrak NSW, and noted that the management fee and administration expenses were substantially lower than previously, and the revenue had increased to about $73.1 million: [130]. Again, the primary judge did not perform an EBIT analysis, but if one adopts the net profit figure of $995,508 (adding back the loan write-off), and adds back finance expenses of $738,075 and tax of $518,279, one reaches an EBIT of $2,251,862. Five times that EBIT yields a figure of $11,259,310.

250    The primary judge then referred to a meeting in May 2019 between Mr Yammine, Mr Liemant and Mr Peeke: [131]. The primary judge said that Mr Yammine asked when he would get the balance of the money from the original deal and Mr Peeke said that there was nothing owing; however, Mr Yammine said that Mr Liemant told him: “just bear with me”: [131]. Mr Yammine had a copy of the Heads of Agreement with him and told Mr Liemant that he was not happy with the deal that they had done. The primary judge referred to Mr Liemant’s evidence that he was “quite surprised and taken aback” that Mr Yammine was not happy with the deal, but the primary judge said that that assertion “rang hollow”: [134]. The primary judge said that Mr Liemant knew that, despite the seriousness of the negotiations for, and entry into, the Heads of Agreement, he and his brother had not gone ahead with the proposed $47.5 million overall purchase, or even the $35 million for the Lantrak NSW business, and instead Mr Yammine had to conclude a sale valuing the latter at about $13 million. Further, the primary judge said that Mr Liemant wanted to maintain a relationship with Mr Yammine, who was “capable of driving customers to that business” and was not subject to any restraint of trade: [134]. The primary judge said that, accepting that the Heads of Agreement were not binding, it was difficult to think that Mr Liemant could have believed that Mr Yammine would have been happy with a deal in which he had come out so far behind his expectations of the worth of what he had to sell, and which all of the professionals and Mr Liemant had adopted in the Heads of Agreement: [135]. In my view, that reasoning again proceeds on the erroneous basis that there was a consensus between the parties that the Liemant interests would pay a total of $35 million for the Lantrak NSW business, and that Mr Liemant’s professional advisers valued Lantrak NSW at $35 million, neither of those propositions being supported by the evidence. The primary judge also referred to the findings that Mr Yammine had refused to enter into a restraint of trade as his “security” for Mr Liemant’s assurances that he would “honour the deal” and pay the balance later: [135].

251    On 20 June 2019, Mr Yammine arranged a meeting in a restaurant in Melbourne Airport with Mr Liemant, which was also attended by a friend of Mr Yammine’s, Mr Akkawi. The primary judge found that Mr Yammine said that Mr Liemant told him “I will always honour our deal”, and that he would get it done, but needed time to raise the funds: [136]. The primary judge accepted the evidence of Mr Akkawi that during the meeting he heard Mr Yammine ask Mr Liemant, “when are you going to fulfil the payment of the $22 million?”, to which Mr Liemant responded “Just be patient and bear with me and everything will be sorted”: [138]. I do not read that finding as an acceptance by Mr Liemant that he was honour-bound to pay the full amount of $22 million, as distinct from anticipating further negotiations on that matter.

252    On 28 June 2019, Mr Touma emailed Mr Peeke referring to his instructions “that our client has communicated the below offer to your client”. The email set out details of an offer to sell RTS’s and Nojo’s business and assets, and for Mr Yammine to enter into a contract not to compete in relation to haulage in consideration of the payment of $15 million payable in three instalments: [139]. Mr Peeke had a discussion with Mr Touma later that day and sent him an email saying that the Liemant side had no detail about the assets or business but “crudely” understood that the assets were worth between $5 and 6 million so that the goodwill component in the offer was about $10 million, and said that “[w]e would not be able to proceed on this basis”, but suggested that this may change if Mr Peeke’s understanding of the value of the assets were incorrect: [140]. On 2 July 2019, Mr Touma emailed Mr Peeke with Nojo’s financial statements, an asset schedule and their valuation, which Mr Peeke forwarded to Mr Liemant, noting that the assets at market value were worth $6.1 million: [141]. On 3 July 2019, Mr Peeke emailed Mr Touma saying that they did not wish to proceed with the offer: [141]. The primary judge said that nothing further transpired in relation to this offer: [142]. The primary judge accepted that Mr Touma’s correspondence did not suggest that Mr Yammine had instructed him to propound a claim that they owed, or had promised to pay, $22 million in addition to the consideration payable under the SPA: [142]. The primary judge said that he had taken that omission into account in evaluating the evidence as a whole and referred to Mr Yammine’s continuing trust in Mr Liemant: [142].

253    On 22 August 2019, Mr Liemant went to Mr Yammine’s house and met with him and Ms Mikhael. Mr Yammine said that he enquired “how’s the funding going?” to which Mr Liemant said that it was going well, as was his business. Mr Yammine asked how they were going to finalise the deal and Mr Liemant told him, “Norm, I’m going to get this done” and mentioned a possible sale of a cornerstone of his business. Mr Yammine gave evidence that Mr Liemant said “I will honour the deal. It’s your kids’ super”. Ms Mikhael said that during the conversation Mr Liemant kept assuring them, saying “I will honour the rest of the money”, and said to her “don’t worry, I will honour your kids’ super. There’s no need to worry”. The primary judge was not satisfied that Mr Liemant said “I will honour your kids’ super” on this occasion. However, the primary judge was satisfied that Mr Liemant said that he would “honour the deal”: [146]. The primary judge then said that by this time, Mr Liemant knew that he had led Mr Yammine to expect that he would be paid the balance of what they had identified in the negotiations for the Heads of Agreement as the price of $35 million for the Lantrak NSW business: [146]. The primary judge said that Mr Liemant did not tell Mr Yammine that he was unwilling to proceed with that price because it overvalued the business, but rather he said that the Liemant side could not raise the funds to pay the $35 million: [146]. I do not read those findings as findings that Mr Liemant promised to pay $35 million at the meeting on 22 August 2019. Further, for the reasons already given, in my view there was no consensus as to the $35 million figure between Mr Yammine and Mr Liemant. I accept that Mr Yammine was expecting to be paid a total of $35 million, but that was an expectation which Mr Yammine had generated himself, not one which Mr Liemant had led him to form.

254    In September 2019, Mr Yammine met with Mr Simpson, who was one of the Lantrak NSW employees referred to in the 9 October note. Mr Simpson told him that the business was earning revenue between $10 and $12 million per month and that Mr Liemant was looking to sell 10% for $10 million, adding that the then value of the Lantrak NSW Group was about $100 million: [147]. Soon after this, Mr Pinto gave Mr Yammine the three documents that he had received from Mr Tromboli to which the primary judge referred at [40], namely the unaudited summaries of the Lantrak Group’s results for the years ended 30 June 2016, 2017 and 2018 and the Lantrak Group balance sheet as at 31 March 2018. The primary judge said that when he received this new financial information, Mr Yammine formed the view that Mr Liemant had lied to him about the Lantrak Group’s financial position: [148].

255    On 5 October 2019, Mr Yammine met with Mr Liemant and told him what Mr Simpson had informed him as to the Lantrak NSW Group’s earnings and value: [149]. Mr Yammine gave evidence that Mr Liemant responded by saying in reference to Mr Liemant proposing to sell a cornerstone for $10 million, “I am doing that so I can pay you back or pay you the money to finish the deal” and said further “I always make right. I always make right”: [149]. On that afternoon, after the discussion, Mr Liemant sent a text message to Mr Yammine saying “Don’t worry I will always honour What is right Together we can achieve great things”: [150]. When asked about that in cross-examination, Mr Liemant referred to honouring a possible future deal, which the primary judge found unconvincing: [152]. The primary judge said that the text was carefully non-committal in what it was that Mr Liemant would honour, just as his previous assurances to Mr Yammine had been crafted to placate and encourage Mr Yammine to believe that Mr Liemant was working toward paying him the balance of what they had agreed, in negotiating the Heads of Agreement, to be the value of the Lantrak NSW Group: [152]. I observe that, fundamental to that finding, is the proposition that the parties had reached a consensus in negotiating the Heads of Agreement as to the value of the Lantrak NSW Group, being a proposition which I do not regard as having been established by the evidence. I agree with the primary judge that Mr Liemant was non-committal in what it was that he would honour, and in my view that had been a consistent feature to date of Mr Liemant’s communications on the subject.

256    On 11 October 2019, Mr Yammine and Mr Liemant met in Docklands in Melbourne. The conversation on that occasion was the subject of a claim by the Yammine Parties that Mr Yammine and Mr Liemant entered into a binding contract for the payment of $10 million in consideration of Mr Yammine, and entities in which he was interested, promising not to compete with the Lantrak NSW Group’s business and giving up any claim to the $22 million. The primary judge rejected that claim: [272]-[275]. The primary judge found that Mr Yammine and Mr Liemant discussed the broad commercial outlines of such an arrangement, but was not satisfied that the Yammine Parties had established that the discussion resulted in a sufficiently certain consensus so as to create an enforceable contract: [273].

257    On 12 October 2019, Mr Yammine sent a text message to Mr Liemant saying “thank you for understanding and honouring what is right”: [159]. Mr Liemant responded by text saying: “A good partnership always respects each other”: [159].

258    The primary judge then dealt with the argument by the Yammine Parties for a collateral contract, the contention being that Mr Liemant, on behalf of the Liemant parties, orally agreed in the 9 October conversation that, in order to accommodate the financial position of Lantrak Holdings, they would enter into a written agreement for the purchase of the Yammine Parties’ shares in the Lantrak NSW Group for $13 million, instead of $35 million, and that in consideration of the Yammine Parties entering into that written agreement, the Liemant Parties agreed in a collateral contract that they subsequently would pay the $22 million balance of the $35 million to the Yammine Parties: [202]. The primary judge rejected that argument: [206]. The primary judge held that such a contract would be wholly inconsistent with the entire agreement clause in cl 11.7 of the SPA, and in any event it was impossible to identify with sufficient certainty what the terms of any such collateral contract were: [206]-[222].

259    The primary judge then dealt with the contention by the Yammine Parties that the Liemant parties were estopped from denying that they had promised to pay $22 million in consideration of the transfer of the balance of the 50% of NJA’s shareholdings in Lantrak NSW: [223]. The primary judge rejected that contention on the basis that the Yammine Parties failed to prove that Mr Liemant’s promise was sufficiently clear and unambiguous to give rise to an estoppel: [224]-[233]. At one stage there was a cross-appeal from the primary judge’s conclusions concerning the estoppel claim, but that was dismissed by consent.

260    The primary judge then turned to the misleading conduct case, pursuant to s 18 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth) (ACL). The primary judge summarised the submissions by the Liemant Parties to the effect that Mr Yammine’s evidence fell well short of the degree of clarity and specificity necessary to establish a contravention of s 18(1) of the ACL, contending that his evidence that Mr Liemant “promised” or assured him that “I will honour what I have signed”, “I will honour the deal” and similar statements were platitudinous, vague, general and contrary to the express terms of the sale of the SPA. The Liemant Parties submitted that, even if Mr Liemant had made such statements, the Yammine Parties had not propounded an intelligible basis to discern what “honouring” the expressly non-binding Heads of Agreement could entail. Further, the Liemant Parties argued that, even if Mr Liemant had made a misleading representation on which Mr Yammine had relied, the Yammine Parties had not proved, or even articulated how they claimed to have suffered, any loss or damage: [241].

261    The primary judge expressed the following conclusion at [243]:

In my opinion, the interactions between Mr Liemant and Mr Yammine before and after completion of the sale agreement on 29 March 2019 supported the Yammine parties’ claim that Mr Liemant represented in the 9 October conversation and thereafter, in the period leading up to entry in the sale agreement that, if Mr Yammine entered into the sale agreement, Mr Liemant (and Lantrak Holdings) would pay Mr Yammine the balance of the original purchase price of $22 million for the Lantrak NSW group. As I will explain below, the fact that both Mr Yammine and Mr Liemant continued to discuss the payment of $10 million and a non-compete agreement also supports the Yammine parties’ claim that there was more to the radical reduction in the purchase price from $35 million to $10 million than the terms of the sale agreement, including its entire agreement clause, provided.

262    The primary judge also found that Mr Liemant’s “promise” to “honour the deal” was a representation with respect to a future matter, within the meaning of s 4(1) and (2) of the ACL, requiring that a person who makes a representation as to a future matter must have reasonable grounds for making it: [244]. The primary judge said that the parties did not suggest that the case turned on whether Mr Liemant had reasonable grounds for what he said; rather, the factual contest concerned whether he did or did not make the representation, and there were no submissions that the deeming provisions in s 4 had any determinative role to play in the resolution of the evidentiary contest between the parties: [244]. The primary judge said that there was “a wealth of evidence to the contrary” and that it was “clear enough” that if, as the primary judge had found, the representation was made, it was misleading and that in relying on it, Mr Yammine was misled into acting to the detriment of the Yammine Parties by entering into the SPA without any written or other contractual recognition that Mr Liemant would “honour the deal”: [244]. The primary judge said that he was comfortably satisfied that Mr Liemant led Mr Yammine to believe that the Liemant Parties would “honour the deal”; that is, make up the difference of $22 million later if Mr Yammine caused the Yammine Parties to enter into the sale agreement, as he did based on that inducement: [245]. The primary judge said that Mr Liemant’s representations that the Liemant Parties would “honour the deal” was promissory, although not contractual and did not create any estoppel, and induced Mr Yammine to believe that, despite whatever may have been the binding force of the SPA, he could trust Mr Liemant to make up, within the reasonably foreseeable future, the difference of $22 million between the non-binding, but apparently accepted, value of the Lantrak NSW Group of $35 million and the $13 million payable under the SPA, once the Liemant Parties could arrange their finances to do so: [246]. I observe that in making that finding, the primary judge was clearly proceeding on what I regard as the erroneous basis that the value of the Lantrak NSW Group of $35 million had been accepted between Mr Yammine and Mr Liemant, albeit in a non-binding way.

263    The primary judge found that the Yammine Parties acted to their detriment when Mr Yammine (on their behalf) caused them to enter into the SPA because he believed, and relied on, Mr Liemant’s “promise” that he would honour the deal, despite the effect of the entire agreement clause: [247]. The primary judge said that Mr Yammine may have been under some financial pressure, but there was no evidence that it was so extreme that he would have abandoned the non-binding result of the hard-nosed bargaining in the negotiations of the Heads of Agreement, that had resulted in the “apparently joint” view that the Lantrak NSW Group was worth $35 million, and settle on a sale price of about one third of that amount, without any substantive bargaining, because of what his trusted friend, Mr Liemant, said about being able to raise the $35 million at that time: [247]. Again, I observe that the reasoning is based on the finding that the view that Lantrak NSW was worth $35 million was a “joint” view shared by both of them.

264    As to the question of loss, the primary judge rejected the Liemant Parties’ argument that the Yammine Parties’ case required the proof of a particular loss: [250]. The primary judge said that the Yammine Parties’ pleaded claim in their originating application was for damages which included loss of a commercial opportunity to negotiate a different, more financially favourable, transaction than that in the SPA, referring to Sellars v Adelaide Petroleum NL (1994) 179 CLR 332. I note that the primary judge did not set out the paragraph of the pleaded claim to which his Honour referred.

265    The primary judge then proceeded to consider the evidence as to whether Mr Yammine could have received a better price than that recorded in the SPA: [252]-[259]. The primary judge made a finding that if Mr Yammine had not trusted Mr Liemant and kept negotiations for an immediate, but perhaps lesser, price on foot, there was a “real possibility” that both men would have arrived at a price substantially in excess of the $13 million in the SPA, and that the Lantrak Group had significant financial capacity, even if not enough at that time to enable it immediately to pay $35 million: [260]. The primary judge said that it followed that the Yammine Parties were entitled to compensation under s 236(1) of the ACL for the loss of that chance: [260]. The primary judge said that that commercial opportunity or chance had a value that was not susceptible of precise calculation, and that the relevant time for valuing that loss was 12 November 2018 when the Yammine Parties entered into the SPA in reliance on Mr Liemant’s promise: [264]. The primary judge considered that the Yammine Parties had a 50% chance of negotiating a price of $25 million to $30 million in lieu of the $13 million in the sale agreement. The average of $27.5 million produces a price of $14.5 million greater than $13 million, 50% of which equates to $7.25 million, and the primary judge held that that was an appropriate amount of compensation: [267]. Accordingly, his Honour found that the Yammine Parties were entitled to an award of $7.25 million as compensation under s 236(1) of the ACL, with interest from 12 November 2018: [268].

266    The primary judge then dealt with the argument by the Yammine Parties that, as an alternative to their claim for $22 million, Mr Yammine and Mr Liemant agreed on 11 October 2019 in the Docklands meeting, that the Liemant Parties would pay Mr Yammine $10 million in consideration of him agreeing that neither he nor any entity which he was interested would compete with the business of Lantrak NSW Group for ten years and that, subsequently, this agreement would be formally documented: [269]. The primary judge rejected the Yammine Parties’ argument, at the Docklands meeting, Mr Yammine and Mr Liemant entered into the binding contract for the payment of $10 million in consideration of Mr Yammine, and entities in which he was interested, promising not to compete with the Lantrak NSW Group’s business and giving up any claim to the $22 million: [272]. As I have mentioned above, while the primary judge found that Mr Yammine and Mr Liemant discussed the broad commercial outlines of such an arrangement, his Honour was not satisfied that the Yammine Parties had established that the discussion resulted in a sufficiently certain consensus so as to create an enforceable contract: [273]. I observe that none of the evidence to which the primary judge referred in relation to this alleged agreement asserted that Mr Liemant acknowledged in some way that he was honour-bound to pay the amount of $22 million.

Ground 1 of the Amended Notice of Appeal

267    Ground 1 is directed to alleged errors by the primary judge in the determination of the representation or representations constituting the relevant conduct pursuant to s 18 of the ACL. It is divided into nine so-called particulars, the first of which is expressed as follows and denoted as particular (a):

The primary judge erred in finding the making of any representation at all or with sufficient precision as to be actionable as any such representation was contrary to contemporaneous documents, inherently unlikely and based on inexact and indefinite oral testimony and as such did not satisfy the correct standard of proof if properly applied. In particular, evidence that Mr Liemant said “I honour what I signed” was incapable of supporting the representation found by the primary judge.

268    The representation found by the primary judge is most clearly expressed at [243], namely as a representation by Mr Liemant in the 9 October conversation and thereafter, in the period leading up to entry into the SPA, that, if Mr Yammine entered into the SPA, Mr Liemant (and Lantrak Holdings) would pay Mr Yammine the balance of the original purchase price of $22 million for the Lantrak NSW Group. The reference in that sentence to “the original purchase price” was a reference to the figure of $35 million.

269    The Liemant Parties submitted that the primary judge had correctly referred to the principle that, in the case of an oral representation, the words alleged to have been spoken are required to be proved with a degree of precision sufficient to enable the Court to be reasonably satisfied that they were in fact misleading in the proved circumstances, referring to Watson v Foxman at 318-9 and the primary judge’s reasons at [110]. However, the Liemant Parties submitted that the transcript of Mr Yammine’s evidence does not establish, with any degree of exactitude, the terms of the representation alleged to have been made to him by Mr Liemant. The alleged representation, set out at [16] of the Further Amended Statement of Claim, is in the following terms:

Further or alternatively, prior to and on about 12 November 2018, [Lantrak Holdings] and Gary Liemant made representations to the Yammine Interests that they would honour the September 2018 Heads of Agreement and would pay the balance of the original price of $35 million attributable to the Yammine Interests Shares, being $22 million.

270    The Liemant Parties referred to Mr Yammine’s evidence in chief to which the primary judge referred at [91] and [92]. The submission was put that, taken at its highest, Mr Yammine’s evidence in chief of a conversation or conversations said to contain a representation was that Mr Liemant had said “I always honour what I sign … work out something that I can give you for now, okay, and then I will be able to get the rest”, and that the same phrase “honour what I sign” was repeated in cross-examination. Reference was made to the primary judge’s encapsulation of the representation as being to “honour the deal”, at [244]-[247] and elsewhere. The Liemant Parties submitted that a statement that a person will “honour the deal” or “honour what I sign” in reference to a non-binding Heads of Agreement which contemplated a series of transactions, most of which did not proceed, and which did not include the purchase price now sought to be insisted on by the Yammine Parties, is so lacking in precision and so uncertain of meaning, that it cannot be found to be an actionable representation. The submission was made that the primary judge did not find that a representation was made by Mr Liemant which included a dollar figure of $22 million or any other figure, pointing out that the primary judge recognised that it was not possible to know in October 2018 “the balance” of the $35 million figure which had been discussed but not included in the signed Heads of Agreement and the “$10 million clear” which became the subject of the SPA, because it was not then possible to determine the payable taxes: see the primary judge’s reasoning at [107]. The primary judge commented in that paragraph that the discussion on 9 October 2018 may have included mention of $22 million as a “balance”, being the difference between $35 million and $13 million, even though that did not take account of the further reduction for the tax payable, but that is not a finding that the figure of $22 million was in fact mentioned. The primary judge also accepted the criticism of Ms Mikhael’s evidence that $22 million was mentioned in the 9 October 2018 conversation because that figure was not then knowable: see the primary judge’s reasoning at [109]. The only document that Mr Liemant had signed, it was submitted, was the Heads of Agreement which contained no figure attributable to the sale of the business.

271    In his oral address on the appeal, senior counsel for the Liemant Parties submitted further that there was no consensus at any time as to the figure of $35 million being the value of the Lantrak NSW business or of the shares in that company. Rather, the figure of $35 million was submitted to be what Mr Yammine had put forward as his view of value at the meeting with PwC on 21 August 2018, and Mr Yammine then adhered to that position. That was said to be the explanation for the concessions by Mr Liemant in cross-examination that as at 26 September 2018, when Mr Yammine resigned as the director of Lantrak NSW, Mr Liemant understood that Mr Yammine had an expectation of being paid $35 million, and that expectation continued until just prior to the conversation on 9 October 2018. I have indicated above that I agree with that explanation.

272    Senior counsel for the Yammine Parties submitted that the appellants did not challenge the finding that Mr Liemant promised that he would “honour the deal”, and nor would this Court readily overturn the primary judge’s finding that Mr Liemant represented that he would “honour the deal”. Further, the Yammine Parties submitted that Mr Yammine’s evidence of his conversation with Mr Liemant on 9 October 2018 contained the substance of the primary judge’s finding as to the representation made by Mr Liemant and referred to that evidence as being the matters referred to by the primary judge at [91] and [92]. The Yammine Parties also referred to the primary judge’s findings being supported by the evidence of Ms Mikhael and Mr Tartac as to what they overheard on 9 October 2018, particularly in corroborating the “broad thrust” of the evidence that if Mr Yammine proceeded on the basis of Mr Liemant paying $10 million now, he would “honour the rest”. Reliance was also placed on Mr Pinto’s evidence as to the conservations he overheard prior to the execution of the SPA, in which Mr Liemant suggested to Mr Yammine that he “take something for now” and Mr Liemant would “make up the difference on the back end” and would look for capital to pay out the balance. Reference was also made to the evidence after the SPA was executed on 12 November 2018 that Mr Liemant continued to tell Mr Yammine that he would “honour the [earlier] deal”, including the evidence of Mr Akkawi as to the meeting on 20 June 2019, the meeting at Mr Yammine’s house on 22 August 2019 and the meeting on 5 October 2019. The Yammine Parties also submitted that if no promise had been made by Mr Liemant to pay Mr Yammine more than the consideration stated in the SPA, then it was inexplicable why (i) Mr Yammine accepted $20 million less for his interest in Lantrak NSW than he had negotiated two months beforehand, (ii) Mr Liemant agreed to execute the SPA which did not contain a non-compete clause that bound Mr Yammine whose active participation had been integral to the growth of Lantrak NSW, and (iii) Mr Yammine and Mr Liemant continued to negotiate the payment of $10 million for a non-compete after the execution of the SPA. The submission was made that the fact that a bargain is non-binding does not render a promise to honour that bargain meaningless, but makes the subsequent promise all the more significant, and was a promise that was capable of misleading Mr Yammine in the circumstances of their unusual commercial relationship.

273    The Yammine Parties submitted that the appellants’ reliance on the fact that the executed Heads of Agreement did not specifically attribute a value of $35 million to Lantrak NSW is misguided in view of the extensive discussion between the parties prior to the execution of the Heads of Agreement of a valuation of $35 million, and that valuation was included in an earlier draft of the Heads of Agreement. It was submitted that the amount stated in the executed Heads of Agreement of $47.5 million was consistent with the valuation of $35 million, and the only draft of the SPA circulated before 9 October 2018 was similarly consistent with the value of $35 million even if that figure was not expressly stated. Reference was made also to Mr Liemant’s concession that prior to the 9 October 2018 conversation, he understood that Mr Yammine expected to receive $35 million. In those circumstances, it was submitted that a promise to “honour the deal” in respect of so much of the transaction contemplated in the Heads of Agreement (and the draft SPA at that date) as was to be realised was clearly capable of communicating that the difference between $35 million and the final consideration to be paid under the SPA would be paid to the Yammine Parties at a later point in time.

274    In her oral address, senior counsel for the Yammine Parties submitted that it was not open to the Liemant Parties to submit that there had not been a consensus concerning the value of $35 million in view of the way in which the trial was conducted. That submission was based on an exchange between the primary judge and senior counsel for the Liemant Parties in final addresses concerning evidence of Mr Yammine that referred to “What he signed in the Heads of Agreement for the business”: T38 on 1 June 2022. The discussion which ensued concerned what was meant in that evidence by the reference to “the business” given that the Heads of Agreement dealt with several different businesses. The primary judge suggested that the evidence was referring to a conversation in which “they were both on the same page that … the deal was going to be about what was … valued in the heads of agreement at $35 million. So … that was the subject matter of what the discussion was.” Senior counsel for the Liemant Parties responded that “the parties seem to be on the same page that they were dealing with that part of the heads of agreement attributable in that document to the business, which was the amount … in the table which had a $35 million figure appended to it.” That appeared to be a reference to the draft of the Heads of Agreement of 27 August 2018 which did in fact attribute a figure of $35 million to the shares in Lantrak NSW. In my view, all that senior counsel for the Liemant Parties was accepting the parties were “on the same page” about was the particular business (out of the various different assets referred to in the Heads of Agreement) which was being discussed between Mr Yammine and Mr Liemant on 9 October 2018. The passage cannot be read sensibly as a concession that the Liemant Parties accepted that there was a consensus between Mr Liemant and Mr Yammine as to the value of shares in Lantrak NSW being in fact $35 million.

275    I have set out at various points in the analysis above of the primary judge’s reasoning where, in my respectful view, the findings of the primary judge as to what was said or agreed went beyond the evidence that was actually given. Even without questioning the findings on the credibility of witnesses made by the primary judge, it is properly a matter for this Court to assess precisely what the evidence given by the witnesses called by the Yammine Parties actually amounted to. As I have indicated above, I do not think that the evidence is sufficient to support a finding that Mr Liemant ever promised that he would pay a total of $35 million, or that he ever accepted that $35 million was an appropriate value to attribute to the shares in Lantrak NSW. That leaves the Yammine Parties with no more than a representation to the effect that Mr Liemant would “honour the deal” or “honour what I signed” or pay “the balance” or “the rest”, but without any identification whether expressly or by implication as to what that would amount to in dollar terms. As I have said above, any suggestion by Mr Liemant of there being a payment in the future by his side of the bargain, in addition to the amount agreed in the SPA, was a matter to be negotiated in the future.

276    Accordingly, neither the pleaded representation, nor the representation found by the primary judge at [243] and elsewhere (which corresponds to the pleaded representation) has been established on the evidence. In my view, therefore this aspect of particular (a) of Ground 1 is established. It is not necessary to deal with the other elements of particular (a).

277    Before leaving this aspect of the appeal, I make the following observations on the way in which evidence was given in the case. In Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [124], I cited with approval the statement by McLelland CJ in Eq in Watson v Foxman at 318-9 that where allegedly misleading conduct consists of the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. As I said at [125], that is plainly a question of degree, not a demand for unattainable perfection, and that reasoning has now been approved by the New South Wales Court of Appeal in Gan v Xie [2023] NSWCA 163 at [119] and [122] (White JA, with whom Simpson AJA and Basten AJA agreed). My remarks were primarily directed to ending the longstanding practice in New South Wales of drafting affidavits in a way which converted a witness’s actual memory of only the gist of a conversation into direct speech, thus giving a false appearance of verbatim memory, prefaced by the confusing formula that the conversation occurred “in words to the following effect”.

278    The present case raises a different aspect of the principle expressed in Watson v Foxman, which was itself a case where evidence in chief of the relevant conversations was given by way of affidavit in direct speech. The primary judge in Lantrak I required that evidence in chief be given orally, although directions were also made that outlines of evidence be served on the other side (but not provided to the Court). The primary judge noted that Mr Yammine had grown up in difficult circumstances and was not well educated. His evidence indicated that he was relatively inarticulate. That placed him at a very considerable disadvantage in giving evidence in chief orally, and the passages of his evidence which I have extracted above illustrate his difficulty in giving precise, responsive and well-structured answers to non-leading questions. The primary judge referred at one point to Mr Yammine saying that he had “a memory meltdown” when he was cross-examined about his failure to give discovery of the 9 October note, but later corrected his answers after having calmed down over lunch: [104]. It may also have been the case that the strain of giving evidence in an unfamiliar and tense setting adversely affected Mr Yammine’s ability to retrieve and express his memory of events when attempting to recount them in his evidence in chief. In my view, this case illustrates that an unintended consequence of requiring evidence in chief to be given orally in complex commercial litigation is to place a less educated and articulate witness at a substantial disadvantage. The problem pertains particularly to oral evidence in chief, given that non-leading questions often require relatively lengthy answers which must be expressed clearly in a well-ordered manner if the case is to be revealed in its best light. Cross-examination is necessarily conducted orally, but the problem is not as acute in that context as questions in cross-examination are typically designed to elicit short answers, such as “yes” or “no”. One cannot say with any confidence whether the substance of Mr Yammine’s evidence would have been better conveyed if his evidence had been given by way of affidavit, but in general that course strikes me as a fairer process, in minimising the disadvantage to a less educated and articulate witness in a contest over credibility. Nor is the problem necessarily confined to those who are less educated and articulate. As anyone will attest who has suffered a mental blank during an exam only to find the memory return vividly shortly afterwards when the pressure has dissipated, a tense environment can prevent the retrieval of a memory which has been fully and genuinely formed and which has actually been well retained. It would also have been of assistance to the appellate Court to read the evidence in chief in the lean and sinewy style of well-drafted affidavits, prepared in the more comfortable setting of a solicitor’s office.

279    Particulars (b)-(f) of Ground 1 deal with the significance of the entire agreement clause in the SPA. Particulars (g) and (h) deal with alleged inconsistencies with the primary judge’s related uncertainty findings in connection with the failed contractual and estoppel cases. Particular (i) deals with the alleged inconsistency with the handwritten note of 9 October 2018 which made no reference to either $22 million or the balance of the $35 million being paid later or in addition to the $10 million “clear”. In light of my conclusion in relation to particular (a), it is not necessary for me to deal with these other aspects of Ground 1.

Grounds 2 and 3

280    Ground 2 of the Amended Notice of Appeal contends that the primary judge erred in determining that Mr Yammine relied on any representation found to have been made by Mr Liemant. Ground 3 contends that the primary judge erred in finding that any representation as found was misleading. In light of my conclusion that Ground 1 is established, it is not necessary to deal with these two grounds of appeal.

Ground 4

281    Ground 4 contends that the primary judge erred in determining that any compensation was payable by the Liemant Parties to the Yammine Parties. There are 11 particulars stated in support of that ground. Particulars (a) and (b) are expressed in the following terms:

(a)    The primary judge determined an amount of compensation on the basis of a lost opportunity case and related methodology which was not advanced by the Respondents, not supported by evidence and which the Appellants were not given a fair opportunity to address both by way of cross-examination, evidence and submissions in denial of natural justice.

(b)    The only claim advanced by the Respondent was that the consideration in the Sale Agreement was at an undervalue and the Respondents’ measure of damages was the difference in that consideration and the amount representing the real value of the business, in circumstances where there was no evidence as to what the real value of the business was or that the consideration was at an undervalue.

282    In the Further Amended Statement of Claim, the claim for loss and damage was expressed at [20] in the following terms:

By reason of the said contravention of the ACL, the Yammine Interests suffered loss and damage in the amount of $22 million and are entitled by virtue of s 236 of the ACL to recover that loss and damage from [Lantrak Holdings] and Gary Liemant, which provision applies to Gary Liemant by reason of ss 28 and 32 of the [Fair Trading Act 1987 (NSW)].

283    In the written outline of opening submissions filed by the Yammine Parties, there was no explanation as to how the claim for loss was put, except for the subheading “The claim for $22 million”, under which the opening submissions relating to misleading or deceptive conduct were put. No evidence was given by Mr Yammine, or anyone else called by the Yammine Parties, in relation to any loss of a chance of negotiating a different contract from that expressed in the SPA. In the closing written submissions by the Yammine Parties, the same sub-heading “The claim for $22 million” appeared in relation to the section which dealt with the misleading or deceptive conduct claim, and no explanation was given as to how the claim for loss was put. In the closing written submissions for the Liemant Parties at the trial, the submission was made that the Yammine Parties needed to demonstrate some form of quantified loss, ordinarily by reference to a counterfactual to the conduct sought to be impugned, in order to establish loss or damage for the purposes of an order under the ACL, and that had not been done. In their written closing submissions in reply, the Yammine Parties referred to the principle that the proper measure of damages is the difference between the real value of the thing acquired as at the date of acquisition and the price paid for it, referring to Kizbeau Pty Ltd v WG&B Pty Ltd (1995) 184 CLR 281 at 291, at which the so-called rule in Potts v Miller (1940) 64 CLR 282 is discussed. I note that a more recent analysis by the High Court of that so-called rule was provided in HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd [2004] HCA 54; (2004) 217 CLR 640.

284    In his final oral submissions at the trial, senior counsel for the Yammine Parties began addressing on the tortious measure of damage being the difference between the real value of the thing acquired and the price that was paid for it: at T26 on 1 June 2022. The primary judge said that he did not have any evidence of the real value of the thing acquired and suggested that this was a Sellars v Adelaide Petroleum situation; that is, a loss of a commercial opportunity to sell a business for more than the $13 million on the promise that the Yammine Parties would be paid another $22 million. Senior counsel for the Yammine Parties said that he accepted that, but did not develop any loss of an opportunity submission, and instead reverted to the approach in Potts v Miller and submitted that it would be open to the primary judge to call for further evidence about what the value of the business was at the time, in the alternative to his submission that the evidence was already there. The primary judge then advanced the hypothesis that the Yammine Parties had taken a lesser sum because of a misrepresentation that Mr Yammine would be paid $22 million and could claim that he had suffered a loss because he lost the opportunity to negotiate, effectively, another deal to protect him in the circumstances where he did not have a contract and did not have a promissory estoppel, so that he could not sue for some liquidated sum (T28.21-26 on 1 June 2022). Senior counsel for the Yammine Parties responded that the Court does the best it can to value that opportunity and it was the Yammine Parties’ case that Mr Yammine lost his business in the sense that his loss is the difference between what the business was worth and what he sold it for, having sold it for $13 million and, on his case, the parties had valued the business at $35 million (T28.36-40). That passage indicates that the Yammine Parties did not take up the primary judge’s suggestion of a loss of opportunity claim but adhered to the Potts v Miller approach. Senior counsel concluded the argument by saying that that was how they put their loss and damage case and could not put it any higher than that, and did not have any other evidence.

285    Senior counsel for the Liemant Parties criticised the suggestion that this was a loss of a chance case, submitting that “the whole case was never conceived of in that way” (T33.35). Reference was made to the pleading of the claim for $22 million in damages.

286    In my view, there has been a clear denial of procedural fairness by the primary judge deciding the claim for loss and damage on the basis of a loss of a chance, or loss of a commercial opportunity, which was never pleaded, opened on, addressed by way of evidence, and not really put in final addresses even after the primary judge suggested that the claim might be advanced in that way.

287    In Lloyd v Belconnen Lakeview Pty Ltd [2019] FCA 2177; (2019) 142 ACSR 445 at [350], Lee J quoted the following passage from the judgment of Jackson J in Graham & Linda Huddy Nominees Pty Ltd v Byrne [2016] QSC 221 at [50]-[51]:

First, it is necessary for a plaintiff who alleges loss of a valuable commercial opportunity to plead that the loss it has suffered is a loss of a valuable commercial opportunity, identifying the opportunity with some particularity. Second, it is also necessary that the plaintiff pleads what it would have done, where what the plaintiff would have done if the defendant had not been in breach of duty is a necessary causal condition to deciding factual causation. Third, it is necessary for a plaintiff who alleges such a loss to plead the percentage or proportion of the opportunity that was lost, in assessing value on the possibilities, in order to plead the amount of the damages claimed, as is specifically required. Fourth, where a plaintiff alleges a loss of a 100 per cent possibility or the certainty that they would have obtained the hoped for or expected benefit under a transaction which did not occur, it is to be expected that the plaintiff will allege with some particularity the facts by which that certain outcome would have been achieved.

…

In a similar vein, in my view, where a plaintiff alleges loss of a valuable commercial opportunity, the plaintiff should in most cases also allege the extent of the loss it says it suffered on the possibilities. It is not sufficient for a plaintiff simply to allege a 100 per cent possibility of obtaining the hoped for or expected benefit, leaving it open to contend that the issue to be decided by the court is the actual degree of likelihood of anywhere between 100% and 1% ….

288    In Lloyd v Belconnen Lakeview, Lee J said that Mrs Lloyd had pleaded a loss of an identified commercial opportunity, but had not pleaded with specificity what she would have done and simply left it to the court to decide the actual degree of likelihood as anywhere between 100% and 1% if her case was not accepted that Belconnen would have totally capitulated in any such negotiation. Lee J said that although the generality of the pleading was not ideal, his Honour did not consider that there had been any relevant denial of procedural fairness in relation to the loss of opportunity to negotiate case generally, in that the pleading outlined in general terms the loss of opportunity to negotiate case and the forensic battleground marking out that aspect of the case was opened on, cross-examined upon, was defined by the end of the case and was the subject of competing submissions: [352]. The Full Court upheld the reasoning of Lee J at first instance, saying that their Honours were not satisfied that Lee J erred in concluding that the loss of opportunity to negotiate case was within the pleaded case, or at least the case as opened and run, for the reasons given by the primary judge, and noted in particular that the loss of opportunity case was the subject of evidence in Mrs Lloyd’s affidavit: Belconnen Lakeview Pty Ltd v Lloyd [2021] FCAFC 187; (2021) 156 ACSR 273 at [129] (Griffiths, Davies and Moshinsky JJ).

289    In my respectful view, the reasoning of Jackson J in Graham & Linda Huddy Nominees Pty Ltd v Byrne, to which I have referred above, represents a counsel of perfection, and would not usually need to be followed to the letter in order to ensure procedural fairness. In the typical case, procedural fairness is met by compliance in the pleading with the first two of Jackson J’s four requirements, and the other elements of a case based on a loss of a valuable commercial opportunity can then be set out and amplified in the claimant’s opening, evidence and closing submissions. However, in the present case, none of those requirements was expressed in the pleading, and senior counsel for the Liemant Parties was entirely correct to submit in final address that “the whole case was never conceived of in that way”, being a reference to a loss of a chance case. The attempt by the primary judge to encourage the Yammine Parties to put their case as a loss of a chance to negotiate a better contract was “accepted” by senior counsel for the Yammine Parties in the most perfunctory manner, and the suggestion was not developed in any way during his closing address. There were many potential lines of evidence, both in chief and in cross-examination, which would likely have been pursued if a case of a loss of a chance had been articulated. All that the appellants need to show is that the denial of procedural fairness deprived them of the possibility of a successful outcome, and in order to negate that possibility it would be necessary for this Court to find that a properly conducted trial could not possibly have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147 (Mason CJ, Wilson, Brennan, Deane and Dawson JJ). That is to be treated as a question of “realistic possibility”: Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ); [45] and [59] (Gageler J). The appellants have comfortably satisfied that test by being denied the opportunity to present evidence in chief on the question of the loss of valuable commercial opportunity, and to cross-examine Mr Yammine and others on that question. As Kiefel CJ, Keane and Gleeson JJ said in Nathanson at [33], “[t]here will generally be a realistic possibility that a decision-making process could have resulted in a different outcome if a party was denied an opportunity to present evidence or make submissions on an issue that required consideration”. Accordingly, it is clear that the Liemant Parties have been denied procedural fairness in a material way in relation to the calculation of damages by reference to the loss of a chance.

290    The Yammine Parties submitted that, if the appellants made out this ground of appeal, the matter should be remitted to the primary judge for a re-hearing on the question of damages, but did not propound any amendment to their pleading. Reliance was placed on the reasoning in Thomson v STX Pan Ocean Co Ltd [2012] FCAFC 15 at [60]-[63], in which a Full Court (comprising Greenwood, McKerracher and Reeves JJ) ordered that a damages claim be remitted to the primary judge to receive evidence on the loss of profit caused by the breach which had been found, and thereby gave the claimant another opportunity to prove its loss on the method favoured by the primary judge. The Full Court said that the considerations in that case were “finely balanced”, but favoured the position advanced by the respondent, which was based on the submission that it was very clear that substantial damage had been sustained by the respondent as a result of serious fraud, and that the respondent’s failure to adduce evidence on the issue of damages was a matter in respect of which the appellant might be compensated in costs. In my opinion, the present case is readily distinguishable, in that it is far from clear that substantial damage has in fact been suffered by the Yammine Parties as a result of a loss of a chance to negotiate a better contract, and there is no allegation of fraud of any kind, let alone “serious” fraud. Moreover, the Yammine Parties would need to amend their pleadings in order to claim damages by way of loss of a chance, and have not taken up the invitation extended to them during argument on the appeal to propound such an amendment. In the present case, a remitter on the question of damages would be anathema to the finality of litigation, and to the efficient and just administration of justice pursuant to s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act).

291    Accordingly, even if I had formed the view that Grounds 1, 2 and 3 of the Amended Notice of Appeal should be rejected, I would have upheld the appeal on Ground 4, particulars (a) and (b), alone. It is not necessary to consider the other aspects of Ground 4.

Conclusion on the Appeal from Lantrak I

292    In my view, the following orders should be made:

1.    The appeal be allowed.

1.    The orders of the primary judge made on 3 March 2023 be set aside.

2.    The Further Amended Statement of Claim be dismissed.

3.    The respondents pay the appellants’ costs both of the proceedings at first instance and of the appeal.

Lantrak II

293    Lantrak II concerns the decision of the primary judge, being a different primary judge from Lantrak I, permanently staying a proceeding commenced by Mr Yammine and others against Mr Liemant and others on the ground that its continuation would amount to an abuse of process. An initial question arose before us as to whether the order staying an action on the ground that it is an abuse of process is interlocutory in nature, and thus requires an application for leave to appeal. It is not necessary for me to decide that question, as I am of the view that, even if leave to appeal is necessary, leave should be granted. Indeed, such leave was not opposed. The application for leave to appeal was heard concurrently with the appeal itself, and I will deal below with the appeal on its merits. A further initial question arose concerning the relevant standard of appellate review, and in particular whether an error of the kind described in House v The King (1936) 55 CLR 499 at 505 must be established in an appeal from a decision to stay a proceeding permanently. As will appear from the reasons which I give below, that question is academic in the present case, in that I have formed the view that no error of any kind has been demonstrated in the reasoning of the primary judge. Accordingly, it is not necessary for me to deal with that question.

The Reasoning of the Primary Judge in Lantrak II

294    The primary judge began by referring to the parties. As to the applicants, the first and second applicants in Lantrak II were Mr Yammine and NJA, both being applicants in Lantrak I. In addition, in Lantrak II, the third applicant was RTS, which was not a party to Lantrak I: [8]. The first respondent in Lantrak II was Mr Mark Liemant, who was not a party to Lantrak I: [9]. The second respondent in Lantrak II was Mr Gary Liemant, who was also the second respondent in Lantrak I: [10]. The third respondent in Lantrak II was Lantrak NSW, which was not a party to Lantrak I: [11].

295    Lantrak II was commenced on 28 June 2022 by the filing of an originating application and concise statement, being 27 days after judgment was reserved in Lantrak I: [13]. I note that judgment was not given in Lantrak I until 3 March 2023. The primary judge summarised the allegations in the amended concise statement in Lantrak II as follows:

(a)    before late 2016, Mr Yammine, through RTS, operated an earthmoving and landfill business in NSW, and at that time, Gary and Mark Liemant through the Lantrak Group were engaged in an earthmoving and landfill business in Victoria and Queensland, but not in NSW: [15];

(b)    in November or December 2016, Mr Yammine and RTS, on the one part, and Gary and Mark Liemant, on the other, concluded an agreement whereby Gary and Mark Liemant agreed to purchase 50% of the RTS business for $5 million, a new company would be incorporated as a special purpose vehicle to take transfer of the RTS business, effectively expanding the Lantrak business into NSW, and Mr Yammine (or his nominee) on the one part, and Gary and Mark Liemant (or their nominee), on the other, would conduct the business as a 50:50 joint venture through the new company: [16];

(c)    it was part of the agreement that Mr Yammine would manage the day-to-day business of the new company, including being responsible for the business operations, winning work and overseeing the completion of that work, and Gary and Mark Liemant, through companies in the Lantrak Group, would be responsible for all head office functions including invoicing and accounting and financial matters: [17];

(d)    the agreement for the payment of consideration for the purchase of the business was that Gary and Mark Liemant would pay, or would procure a company in the Lantrak Group to pay, Mr Yammine or his nominee or RTS $2 million, and following the transfer of the business, Gary and Mark Liemant would pay Mr Yammine or his nominee shareholder, within a reasonable time, $6 million in franked dividends out of the first $6 million in the new company’s after-tax profits before any company profits were distributed to the Liemants as 50% shareholders: [18];

(e)    alternatively, it was pleaded that Gary and Mark Liemant would pay, or would procure a company in the Lantrak Group to pay, Mr Yammine or his nominee or RTS $2 million upon the transfer of the RTS business to the new company, plus $1.5 million within 12 months and $1.5 million within 24 months, or alternatively $5 million within a reasonable time: [19];

(f)    pursuant to the agreement, Lantrak NSW was incorporated and in about January 2017 the RTS business was transferred to Lantrak NSW, 50% of the issued shares in Lantrak NSW were issued to Lantrak Holdings as nominee of the Liemants and 50% were issued to NJA as Mr Yammine’s nominee; until about 1 November 2018 when the joint venture came to an end, Mr Yammine managed and operated the Lantrak NSW business from day-to-day, and the Liemants, through companies in the Lantrak Group, conducted the head office functions: [20];

(g)    in breach of the agreement, the Liemants did not satisfy their liability to Mr Yammine or RTS of $5 million for the effective acquisition of 50% of the RTS business: [21]; the first claim that was asserted was therefore for payment of $5 million, being the agreed purchase consideration: [22];

(h)    the second claim asserted was one of breach of fiduciary duty arising out of the conduct of the business, the allegation being that the Liemants owed fiduciary duties to Mr Yammine, NJA and RTS, including duties of cooperation and keeping Mr Yammine and NJA informed of Lantrak NSW’s financial performance, the profits earned and how the profits were treated, together with allegations that the Liemants were obliged not to put themselves in a position of conflict between their own interests and those of Mr Yammine in the joint venture, not to make any secret profits from Lantrak NSW, and not to use their position as directors of Lantrak NSW to receive preferential treatment: [23];

(i)    in breach of their fiduciary duties, between January 2017 and November 2018, the Liemants did not cooperate with Mr Yammine and NJA and did not keep them informed of Lantrak NSW’s financial performance, the Liemants used their position as directors of Lantrak NSW to cause Lantrak NSW to understate its true net profits so as to remove or inhibit the ability of Lantrak NSW to pay Mr Yammine or NJA within a reasonable time $6 million in franked dividends out of the first $6 million of Lantrak NSW’s profits after tax before any company profits were distributed to the Liemants, and that the Liemants put themselves in a position of conflict between their own interests and those of Mr Yammine in the joint venture and that they made secret profits from Lantrak NSW: [24];

(j)    the applicants claimed loss and damage, an account from the Liemants and payment of unauthorised profit made by them: [25];

(k)    the third claim asserted against the Liemants was for misleading and deceptive conduct under s 18 of the ACL, it being pleaded that in late 2016 the Liemants represented to Mr Yammine and RTS that they would pay or procure a company in the Lantrak Group to pay Mr Yammine or his nominee $5 million against transfer of the RTS business, and by their failure to pay that amount or to procure its payment, the Liemants engaged in misleading and deceptive conduct in trade or commerce with regard to a future matter: [26] and;

(l)    the fourth claim asserted against the Liemant’s was in “unjust enrichment”, it being alleged in the alternative to the other claims that if the agreement for the purchase and transfer of the RTS business was not binding or enforceable, then Lantrak NSW was unjustly enriched at the expense of RTS by acquiring the RTS businesses for no consideration and that RTS was entitled, upon a quantum valebat or otherwise, to restitutionary damages from Lantrak NSW in respect of the full value of the RTS business as at the date of the transfer of the business: [27].

296    The primary judge said that analysis of those causes of action revealed that the necessary evidence and factual findings for their determination would cover the formation of the commercial relationship between the Yammine and Liemant commercial interests, the terms of that relationship, how those terms were put to effect, and the conduct of the relationship through 2017 and 2018 to its termination, including the financial position of Lantrak NSW during the course of the relationship, its profits and how they were dealt with: [28].

297    The primary judge then set out the salient aspects of the pleaded claims in Lantrak I, being the allegations concerning the collateral contract, the estoppel claim and the claim for misleading and deceptive conduct: [29]-[34]. His Honour noted that those claims all canvassed the dissolution of the commercial relationship between the Yammine and Liemant interests in the business of Lantrak NSW and commented that, as will be seen, the alleged terms of the dissolution were based at least in part on the commercial success of the business with a result that the conduct of the relationship, the financial position of the business and the profits earned were necessarily significant in the trial of the claims: [35]. The primary judge also noted the further claim in respect of a non-compete agreement said to have been concluded on 11 October 2019, whereby Lantrak Holdings and Mr Liemant allegedly agreed to pay Mr Yammine $10 million for him and his entities not to compete with the business of Lantrak NSW for a period of 10 years, and noted that the non-compete agreement claim did not appear to overlap in time or evidence with the other claims, or the claims in Lantrak II: [36].

298    The primary judge then summarised the course of Lantrak I, noting that the statement of claim in Lantrak I was filed and served in June 2020. The primary judge noted that prior to the respondents being required to file a defence, in order to meet the respondents’ request for further particulars, the applicants were directed to serve outlines of evidence and thereafter, an amended statement of claim was filed and outlines of evidence of 11 witnesses were served: [37]. The outline of evidence to be given by Mr Yammine commenced with events in 2015, with the founding of the RTS business, and dealt in some detail with discussions between Mr Yammine and Gary and Mark Liemant for the sale of a 50% interest in the business by Mr Yammine to the Liemants and the formation of Lantrak NSW, and also dealt with the profits of the Lantrak NSW business during the period that the business was conducted: [38]. The applicants also served an outline of the evidence to be given by Mr Pinto, which included details concerning the sale of the RTS business to the Liemants and what was said to be the application by Mr Yammine of the money that was to be paid to him back into the business in order to grow it: [39].

299    In February 2021, the respondents filed and served a defence to the amended statement of claim, and served the outlines of evidence of four witnesses: [40]. The outlines of Gary and Mark Liemant responded to the applicants’ outlines by covering the purchase of the RTS business and its transfer to Lantrak NSW, and the conduct of the business under Mr Yammine’s management, and there was also an outline of the evidence of Mr Peeke that covered, amongst other matters, the financial performance of Lantrak NSW: [41]. In March 2021, the matter was listed for final hearing in March 2022 on a seven day estimate: [42].

300    In April 2021, the parties were directed to make standard discovery, and the respondents made very substantial discovery in May 2021, whereas the applicants made very limited discovery in July 2021: [43]. The primary judge referred to the respondents’ discovery as including substantial documentation with regard to the financial position of Lantrak NSW throughout the period of its operation, including balance sheets, profit and loss statements, group financial reports, debtors’ and cash flow reports, cash flow forecasts, debtors’ and creditors’ ledgers and asset registers from time to time: [43]. Despite the respondents having made discovery in May 2021, it was not until November 2021 that the applicants’ then solicitors downloaded the discovered documents: [44].

301    On 22 December 2021, the applicants’ then solicitor, Mr Zouky, wrote to the respondents’ solicitors, stating that he had been instructed by Mr Yammine to institute a further proceeding against Gary and Mark Liemant in relation to the transfer of the RTS business from RTS to Lantrak NSW in early 2017: [52]. The letter then set out details of the claim “in the amount of approximately $5,000,000.00”, and stated that the proceeding would be commenced shortly and that it was “likely that the above proceeding will need to be managed together with the existing proceeding”: [52]. On 23 December 2021, Mr Zouky sent a further letter to the respondents’ solicitors, stating that the “two proceedings will involve common witnesses and may involve overlapping issues of fact and law, such that it would be most efficient for them to be heard and determined together”: [53]. Mr Zouky also proposed the terms of an email to be sent to the docket judge’s associate, which included informing the judge of the imminent new proceeding, that the proceedings should be managed together and that an adjournment of the first proceeding may be necessary: [53]. On 24 December 2021, the respondents’ solicitor, Mr Milner, replied and stated in relation to the proposed new proceeding that he was not in a position to express any concluded view as he had not yet been served with any proposed pleadings. Mr Milner stated that the proper course for the applicants to take was to serve the proposed pleading as soon as possible, and did not consent to the docket judge being notified in the manner that had been proposed by Mr Zouky: [54]. On 31 December 2021, Mr Zouky wrote a further letter to Mr Milner saying that he would arrange for the statement of claim in respect of the foreshadowed proceeding to be served as soon as possible: [55]. However, no statement of claim was served, and at a case management hearing early in the new year, no mention was made of the proposed new proceeding or claims: [55]. The primary judge noted that no further mention of the proposed proceeding appeared to have been made between the parties until the final day of the trial, being 1 June 2022: [56].

302    In February 2022, approximately a month before the trial, there was an interlocutory hearing in which the Yammine Parties applied to rely on the report of a financial expert on the question of the profitability of the Lantrak NSW business: [46]. The Liemant Parties had also retained an expert to deal with that issue in the event that the applicants’ expert’s report was admitted. The primary judge in Lantrak I refused to allow the Yammine Parties to rely on that expert report because of its lateness and the consequences that that would likely have had on the trial: Yammine v Lantrak Holdings Pty Ltd [2022] FCA 179. The primary judge in Lantrak II said that the fact of the applicants having such a report was relevant to the question of when Lantrak II could or should have been brought: [46].

303    The trial in Lantrak I took place between 8 and 14 March 2022, and was reconvened on 1 June 2022 for closing submissions. In the intervening period, the parties filed and served written closing submissions, and judgment was reserved on 1 June 2022: [47].

304    The primary judge noted that the evidence-in-chief at the trial was adduced orally, with Mr Yammine giving evidence, including evidence in some detail with regard to the formation of the commercial relationship with the Liemants and the transfer of the RTS business to Lantrak NSW, and also dealing in some detail with the conduct of the business after its transfer to Lantrak NSW, including with regard to the profits earned: [48]. The primary judge referred to Mr Yammine having been cross-examined at length, the cross-examination covering the sale of the RTS business to Lantrak NSW, the shareholding arrangement, the conduct of the business and the profits earned and payment of the purchase consideration, and was also re-examined on the profits of the business: [48]. The primary judge referred to Mr Pinto giving evidence, including on the sale of the RTS business to Lantrak NSW, and was cross-examined at length, including on the sale and profitability of the business and the profits earned, and was re-examined on the profits of the business: [49]. Mr Liemant gave evidence, and was cross-examined at some length, including on the transfer of the RTS business to Lantrak NSW, the cross-examination covering the purchase price and other features of what was agreed, the payment of the purchase price and the profits that were earned: [50]. Mr Peeke also gave evidence on, and was cross-examined on, the profitability and financial position of Lantrak NSW: [50].

305    In the written and oral closing submissions in Lantrak I the parties canvassed at some length the profits that were earned by the business, because that was relevant to the dissolution issues and in particular the inherent probability or otherwise that Mr Liemant made the promises alleged against him, and the basis on which the price for the shares had been arrived at: [51]. The primary judge referred to the respondents’ written closing submissions stating that Mr Yammine had confirmed in evidence that he had no complaint and brought no claim in respect of the first transaction which resulted in the Yammine Parties and the Liemant Parties each holding a 50% interest in the Lantrak NSW business: [56]. In response to that, senior counsel for the Yammine Parties in oral closing drew attention to a portion of the cross-examination of Mr Yammine on the first day of the trial, in which it had been put to him that he did not complain about any part of the initial purchase price of $5 million “in these proceedings”, and referred to correspondence about a threatened proceeding in respect of the sale and said that “at least on our instructions, that matter is certainly not resolved”: [56].

306    The primary judge then referred to the leading case on the principles applicable to a claim of abuse of process such as the present being UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 (UBS). At [58]-[64], the primary judge identified the following principles in the judgment of Kiefel CJ, Bell and Keane JJ, and in the concurring judgment of Gageler J (which also adopted at [61] the reasons of the plurality):

(a)    either of two conditions enlivens the power of the court to permanently stay proceedings as an abuse of process of the court: one being where the use of the court’s procedures occasions unjustifiable oppression of a party, and the other being where the use serves to bring the administration of justice into disrepute: UBS at [1];

(b)    whether or not particular conduct rises to the level of an abuse of process is a determination that requires consideration of all the circumstances, the determination being “a broad, merits-based judgment which takes account of... all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before”: UBS at [7], quoting Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 at 31;

(c)    the determination of whether the bringing or continuance of a proceeding is an abuse of the process of the court must take into account the procedural law administered by the court whose processes are engaged, relevantly s 37M of the FCA Act which provides that the overarching purpose of the civil practice and procedure provisions of the court is to facilitate the just resolution of disputes according to law “as quickly, inexpensively and efficiently as possible”, that overarching purpose having various objectives including “the efficient use of the judicial and administrative resources available for the purposes of the Court”, “the efficient disposal of the Court’s overall caseload” and “the disposal of all proceedings in a timely manner”: UBS at [34];

(d)    the timely, cost-effective and efficient conduct of modern civil litigation takes into account wider public interests than those of the parties to the dispute: UBS at [38], citing, amongst other authorities, Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at [95];

(e)    although a party has a “right” to bring proceedings, in doing so choices are made respecting what claims are made and how they are framed, and the just resolution of a dispute involves parties having a sufficient “opportunity” to identify the issues that they seek to agitate, and abuse of process principles may be invoked to prevent attempts to litigate a claim that should have been litigated in earlier proceedings: UBS at [38]-[39], citing Aon at [33], [98] and [112];

(f)    in some circumstances the bringing of a claim which should have been litigated in an earlier proceeding will be an abuse, and that may be so notwithstanding that the later proceeding is not precluded by an estoppel, and that can be seen so even where the parties seeking to make the claim or to raise the issue in the later proceeding was neither a party to the earlier proceeding, nor the privy of such a party: UBS at [43] and [62]-[63], citing Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 at [26]; and

(g)    the courts must be astute to protect litigants and the system of justice itself against abuse of process, and it is to hark back to the time before the High Court’s decisions in Aon and Tomlinson, and the enactment of s 37M of the FCA Act, to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the “just, quick and efficient” resolution of litigation: UBS at [45].

307    The primary judge referred to the circumstances in UBS, being that there was first a proceeding in the Supreme Court of NSW by Mr Tyne, the trustee of a family trust and a company associated with Mr Tyne. During the course of the proceeding, Mr Tyne and the trustee discontinued the proceeding, which continued in the name of the company, and Mr Tyne thereafter succeeded the trustee as trustee of the trust and, in his capacity as trustee, brought a proceeding in the Federal Court asserting essentially the same causes of action that had been discontinued in the Supreme Court proceeding. The respondent, UBS, sought the permanent stay of the proceeding. In the circumstances of UBS, oppression was found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to UBS, but at its core was the vexation of being required to deal again with claims that should have been resolved in the Supreme Court proceeding: [66]. The primary judge referred to it being held that for the Federal Court to lend its procedures to the staged conduct of what was factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, was likely to give rise to the perception that the administration of justice was inefficient, careless of costs and profligate in its application of public monies, referring to UBS at [59].

308    The primary judge also referred to Gageler J’s reasoning in UBS at [75] that it was not necessary for the effect of the Federal Court proceeding on UBS to rise to the level connoted by language such as “unfairness” or “oppression”. Rather, Gageler J held that UBS’s private interest was sufficiently engaged by UBS being compelled by the coercive authority of the Federal Court to respond to a process designed to vindicate a claim which should have been brought in the Supreme Court proceeding, which UBS had already gone to the time and expense of bringing to completion, and that private interest was to be weighed with the public interest in the timely and efficient resolution of claims: [67].

309    The primary judge then made a number of observations with regard to the present proceedings as follows:

(a)    although the causes of action in Lantrak 1 and Lantrak II did not arise from precisely the same facts, and they were in a sense separated in time, the causes of action had significant interrelationship: [69];

(b)    there was significant overlap in the material facts between the breach of fiduciary duty and unjust enrichment claims in Lantrak II and the claims in Lantrak I (other than the non-compete claim); that overlap arose particularly from the fact that it was the Yammine Parties’ case in Lantrak I that the agreement with regard to the purchase price for the shares in Lantrak NSW was arrived at by reference to the profitability of that business, noting that in closing submissions it was said on behalf of the Yammine Parties that the figure of $35 million was set by reference to five times the business’s EBIT with reference to Mr Yammine and Mr Pinto’s oral evidence in support of that, the proposition being that the very substantial purchase price for the shares and assets was justified on the basis of the success of the business, which in turn required detailed consideration of the accounting in the business and the profits of the business, and those matters were necessarily material to the breach of fiduciary duty and unjust enrichment cases in Lantrak II: [70];

(c)    there was significant overlap in the evidence in the two proceedings, in that the evidence in Lantrak I covered in considerable detail factual questions as to the formation of the commercial relationship including the transfer of the RTS business to Lantrak NSW and the agreements in that regard, and the conduct and profitability of the business, and that evidence appeared to have been regarded as relevant not only by way of context, but also significantly with regard to the witnesses’ credit and Mr Yammine’s stated usual or common manner of doing business on a handshake and not requiring formal documentation, and the question of profitability of the business also went to the terms of the agreement with regard to the dissolution of the relationship: [71];

(d)    the two principal witnesses in both proceedings were likely to be the same, namely Mr Yammine and Mr Gary Liemant, both of whom were cross-examined at length in Lantrak I, and the credit of both of them was impugned; accordingly the judgment in Lantrak I was likely to have to make findings with regard to their credit, and that would likely be based on evidence of matters that would have to be covered again by them in Lantrak II: [72];

(e)    not only was the duplication between the two proceedings likely to lead to a risk of conflicting findings, but the respondents were vexed on the same issues twice, in that they had given extensive discovery on those issues, they had to consider detailed outlines of evidence by the applicants that covered those issues, they had prepared detailed outlines of evidence in response, and they had prepared for and dealt with those issues at the trial; and there was no doubt that it would have been considerably less burdensome on the respondents to have had to deal with all the claims in one proceeding, and that it would be substantially wasteful to them to have to deal with them separately: [73];

(f)    although the parties in the two proceedings were not exactly the same, the commercial interests on either side of the two proceedings were identical, and to the extent that there was not an identity of parties, such parties were certainly the privies of Mr Yammine and the Liemants respectively: [74]; and

(g)    there did not appear to be any credible reason why the claims that were the subject of Lantrak II were not brought in Lantrak I, a matter which necessitated consideration of Mr Yammine’s explanation for not bringing the claims that are the subject of Lantrak II in Lantrak I: [75].

310    The primary judge then dealt with Mr Yammine’s explanation for bringing the proceeding late, referring to an affidavit of Mr Yammine in Lantrak II in which he explained why the claims that he asserted in Lantrak II were brought only when they were and why they were not brought in Lantrak I: [76]. The primary judge summarised that affidavit as follows.

311    Mr Yammine said that in about March 2020, Mr Liemant first said to him that the Liemant interests would not pay Mr Yammine and NJA the outstanding $22 million for the Lantrak NSW shares that were the subject of the collateral contract, so Mr Yammine was at that time “focused on the terms upon which the Liemant interests agreed to purchase NJA’s shares in Lantrak NSW and the circumstances surrounding that agreement”, and said that he was “focused on the terms of [his] exit from Lantrak NSW”: [77]. Mr Yammine said that he considered the claim in Lantrak I and the circumstances that gave rise to it to be separated, both in time and substance, from the agreement and circumstances under which the Liemant interests purchased a 50% interest in the business of RTS in late 2015 or early 2016, or the circumstances in which he entered into the Lantrak NSW business with the Liemant interests, saying that, at the time of commencing Lantrak I, he was not focused on those different claims and the circumstances that surrounded them: [78].

312    Mr Yammine also said that at the time of commencing Lantrak I, the claims that were the subject of Lantrak II, including those related to the joint operation of the Lantrak NSW business during 2017 and most of 2018, required further consideration and consultation with his lawyers, saying further that when he commenced Lantrak I, he wanted to seek and obtain relief from the Court promptly in respect of his claims in that proceeding and he did not want the bringing of the other claims to delay the resolution of those claims: [79]. Mr Yammine also said that “in any event”, at the time of commencing Lantrak I he did not have effective control of RTS so it would not have been possible for him at that time to bring a claim on its behalf, saying that, unknown to him at the time, in February 2018 his accountants without his authority removed him as the sole director and secretary of RTS and the shares in the company were transferred to someone else, and that on 1 November 2021, RTS was deregistered due to a failure by his accountants to pay the necessary fees to ASIC: [80]. Mr Yammine said that he discovered the irregularities in the stewardship and composition of RTS in November 2021 after it had become deregistered, and then promptly took steps to have the company reinstated on 3 February 2022 and to have his shares in RTS restored on 15 February 2022: [81]. On 25 July 2022, as the sole shareholder in RTS he passed a resolution removing the sole director and secretary of RTS, who had wrongly been recorded as replacing him, and restored himself to those positions: [81]. Mr Yammine said that for those reasons it was not until “early to mid-2022” that his lawyers could commence the present proceeding on his behalf, and on behalf of RTS: [82].

313    The primary judge then referred to his Honour’s decision to refuse leave to cross-examine Mr Yammine on that affidavit: [83]. I note that the Liemant interests did not challenge the correctness of that approach in their submissions to this Court, and accordingly this is not the appropriate occasion to consider whether the primary judge’s approach was correct in view of s 27 (when read with s 11) of the Evidence Act 1995 (Cth). The primary judge then said, however, that even without cross-examination, there were a number of evident problems with Mr Yammine’s explanation for not having brought the present claims in the first proceeding: [84]. Those problems were as follows.

314    First, even accepting that Mr Yammine was “focused” on the claim for the $22 million, there was no explanation as to why he should have been so focused, as it was clear that on his version he was at that time in substantial dispute with the Liemant interests about the whole of their commercial relationship and it was his and his lawyers’ responsibility to bring forward all related claims in an efficient and cost-effective manner: [85]. The primary judge commented that Mr Yammine’s and Mr Pinto’s outlines of evidence and evidence in chief covered the formation and the conduct of the relationship, so at least to that extent there was a focus by Mr Yammine on those issues from very early in the course of Lantrak I: [85].

315    Second, the primary judge said that Mr Yammine was clearly mistaken in considering that the claim for the $22 million in Lantrak I was separated “both in time and substance” from the claims asserted in Lantrak II, as the claims have significant factual overlap and all arise from the same commercial relationship which lasted a relatively short period of time: [86].

316    Third, the primary judge said that even if it is correct that at the time that Lantrak I was commenced Mr Yammine did not have the necessary financial information about the conduct of the Lantrak NSW business available to him to bring Lantrak II, he could have sought that information before bringing the proceeding, or he could have obtained it early in the proceeding, which is indeed what occurred when discovery was given: [87]. The primary judge said that shortly thereafter, if not before, the claims that were the subject of Lantrak II could readily have been included in Lantrak I, but that discovery was not accessed by the Yammine interests until November 2021, and shortly thereafter Mr Zouky first asserted the present claims: [87]. The primary judge inferred that the delay by the Yammine interests in asserting the claims was caused at least in part by their very late consideration of the discovered documents: [87].

317    Fourth, given the size and complexity of the claims brought in Lantrak I, Mr Yammine (or anyone who may have advised him) could not reasonably have thought that that proceeding would be brought to resolution so quickly as to justify not bringing the claims that are the subject of Lantrak II at the same time: [88]. Further, Mr Zouky suggested in his correspondence in December 2021 that the trial in Lantrak I could be adjourned in order to accommodate the new proceeding, which showed that at least at that stage Mr Yammine was not so concerned to ensure the quick resolution of Lantrak I: [88]. In any event, the primary judge said that it was doubtful that such a consideration was relevant given the substantial overlapping factual underpinnings to the prospective claims and their interrelatedness: [88].

318    Fifth, the primary judge said that Mr Yammine’s explanation with regard to being unable to bring a claim on behalf of RTS is unconvincing for a number of reasons, even putting to one side that the obvious explanation for the changes in the internal arrangements in RTS in early 2017 and its subsequent deregistration were most likely explicable by reference to the fact that in early 2017 the whole of its business was transferred to Lantrak NSW: [89]. The primary judge said that Mr Yammine’s ability, through his accountants, to restore the proper internal arrangement in RTS after he learnt of the unauthorised changes shows that he never really lost control of RTS, and the problem was one of form, not of substance: [89]. Further, since Mr Yammine did not know that he was not the sole shareholder, director and secretary of RTS at the time that Lantrak I was commenced, and thereafter, the formal internal position with regard to RTS offered no explanation for why Mr Yammine did not bring the claims in Lantrak II at that time: [90]. The primary judge said that if he had sought to bring them in early 2020, he may have discovered the problems in RTS at a much earlier time, which would still have enabled those claims to be brought in Lantrak I: [90]. In addition, when Lantrak II was commenced, RTS was not named as an applicant and was added as the third applicant only in the amended originating application and amended concise statement on 16 August 2022: [91]. Accordingly, RTS was not regarded as a necessary applicant to the claims that were the subject of Lantrak II at the time that it was brought, with the result that any difficulties with regard to the internal arrangements in RTS offered no explanation for why those claims were not brought at a much earlier time: [91]. Finally, the primary judge observed that Mr Yammine was reinstated as sole shareholder of RTS on 3 February 2022, after which he could at any time have reappointed himself as sole director, and it was therefore not the case that his reappointment as sole director in July 2022 had any bearing on the proceeding only being brought when it was: [92].

319    The primary judge then said that taking the above matters into account, the claims that were the subject of Lantrak II should have been brought in Lantrak I, or at least early enough to have enabled them to be heard simultaneously with Lantrak I: [93]. The primary judge said that it was apparent from Mr Zouky’s correspondence in December 2021 that that was the applicants’ intention at that time, and that was because the two proceedings would “involve common witnesses and may involve overlapping issues of fact and law such that it would be most efficient for them to be heard and determined together”: [93]. The primary judge said that was exactly the position that pertained both then and now, and the applicants had the opportunity to bring the claims then (actually, long before then) and they should have done so: [93].

320    The primary judge inferred that the applicants chose not to bring Lantrak II at the time of, or shortly after, Mr Zouky’s correspondence so as not to imperil the trial dates of Lantrak I, being a forensic decision that they made and that they must live with: [94]. The primary judge said that it was not necessarily a decision taken so as to give the applicants a forensic advantage by bringing Lantrak II separately and later, but was more likely a decision taken in order to avoid the consequences to Lantrak I arising from asserting the claims in Lantrak II so late, but that lateness was something for which the applicants were responsible: [94]. The primary judge accepted that, unlike in UBS, there was no evidence in Lantrak II that there was “tactical manoeuvring” by the applicants in not bringing Lantrak II much earlier, if that phrase is taken to have a pejorative connotation: [95]. The primary judge said that there was nevertheless a decision taken not to bring the claims earlier, and that it was not necessary to a finding of abuse of process that there be “tactical manoeuvring” in a pejorative sense: [95].

321    The primary judge observed that, not only will the respondents be vexed by having to deal with Lantrak II separately from Lantrak I, but public resources committed to the administration of justice would be wasted by the two proceedings being heard separately: [96]. The primary judge observed that a judge of the Court had already heard Lantrak I and was reserved on it, and, given the significant issues of credit at stake, it would be inadvisable for the same judge to hear and determine Lantrak II, thus further contributing to duplication and waste, and also giving rise to the risk of conflicting findings on credit and material facts: [96].

322    The primary judge then said that there was no sense in which the applicants’ bringing of the claims in Lantrak II in a separate proceeding and too late for the two proceedings to be heard together is consistent with the overarching objectives of the Court’s practice and procedure provisions as expressed in s 37M of the FCA Act, and as required of the applicants by s 37N(1): [97]. The primary judge said that to allow Lantrak II to continue would not constitute the efficient use of the judicial and administrative resources of the Court, it would detract from the efficient disposal of the Court’s overall caseload and it would not contribute to the disposal of proceedings in a timely manner: [97].

323    The primary judge then dealt with a submission made on behalf of the Yammine interests by reference to CBRE (V) Pty Ltd v Trilogy Funds Management Limited [2021] NSWCA 316; (2021) 107 NSWLR 202 at [18] (Bell P), that if, following Mr Zouky’s correspondence in December 2021, the Liemant interests were concerned as to the potentiality of the Yammine interests bringing the new claims against them in a separate proceeding, they could have themselves brought a cross-claim in Lantrak I seeking a negative declaration: [98]. The primary judge considered that there was no obligation on the Liemant interests to take such a course, particularly considering that they did not know the necessary details of the foreshadowed claims, Mr Zouky had said that he would be serving pleadings imminently, and to seek such a negative declaration at that stage might itself have imperilled the trial dates, which should not have been at the risk of the Liemant interests: [98]. The primary judge commented that it was one thing to observe that a negative declaration can be sought, but it was quite another to conclude that a party is under some form of obligation to seek it: [98].

324    The primary judge therefore concluded that both the alternative conditions for the enlivening of the power to permanently stay proceedings identified in UBS at [1] were established in this case, in that for Lantrak II to continue would occasion unjustifiable oppression of the respondents, and it would serve to bring the administration of justice into disrepute: [99]. Accordingly, the primary judge concluded that the stay was justified on either basis, and that it was compelled by both together: [99]. The primary judge thus ordered that Lantrak II should be permanently stayed and that the applicants should pay the respondents’ costs of the proceeding: [100].

The Challenge to the Primary Judge’s Reasoning in Lantrak II

325    The Yammine interests submitted, and I accept, that nothing in the reasoning in UBS should be taken as altering the heavy onus lying upon the party alleging an abuse of process, and that a permanent stay should be ordered only in exceptional circumstances, relying on Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269 at [16] (Leeming JA and Simpson A-JA); Moubarak v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218 at [71] (Bell P, with whom Leeming JA and Emmett AJA agreed), the latter case citing Jago v District Court of New South Wales (1989) 168 CLR 23 at 31 (Mason CJ), 76 (Gaudron J); Williams v Spautz (1992) 174 CLR 509 at 529 (Mason CJ, Dawson, Toohey and McHugh JJ); Walton v Gardiner (1993) 177 CLR 378 at 388 (Mason CJ, Deane and Dawson JJ). In my view, nothing said by the primary judge in Lantrak II indicates any departure from that principle.

326    The main criticism made by the Yammine interests of the primary judge’s reasoning was the contention that his Honour impermissibly elevated the principles in s 37M of the FCA Act, such that instead of being merely relevant to defining the exceptional circumstances that will justify a stay, they constituted the substance of, or substituted for, the normative evaluation engaged in by the plurality in UBS. That alleged error was said to be illustrated by the primary judge’s acknowledgement that: (i) in Lantrak II there was no “tactical manoeuvring” in a “pejorative sense”; (ii) the applicants’ solicitors communicated the possibility of further claims being brought prior to the trial in Lantrak I; and (iii) the causes of action in Lantrak I and Lantrak II were different, and did not arise from precisely the same facts. In those circumstances, it was submitted that the factors relied upon by the primary judge fell short of the exceptional circumstances required to be shown in order to justify a permanent stay for abuse of process.

327    In my view, the primary judge made no such error. Senior counsel for the Yammine interests conceded during oral argument that there could be an abuse of process in the absence of tactical manoeuvring in a pejorative sense (T156.42-46). Further, senior counsel for the Yammine interests conceded that a decision had been taken by her clients not to bring the claims earlier, being a forensic decision that they had to live with (T155.20-31). No challenge was made to the primary judge’s inference that it was a decision taken in order to avoid the consequences in Lantrak I of imperilling the trial dates. While the primary judge was right to contrast that with the kind of tactical manoeuvring involved in the particular staged litigation engaged in by the claimants in UBS, and did not suggest any element of opportunism or bad faith, the decision still constituted a forensic decision which was made to gain a forensic benefit. While the causes of action in the two proceedings, and the parties in those proceedings, were not identical, the degree of overlap in the facts and witnesses, and the commonality of issues, were very substantial. In my view, the primary judge was entirely correct to perceive the risk of inconsistent findings, both on matters of credibility of witnesses and on the substantive issues of fact which were at stake. Applying the reasoning in UBS at [34] and [61], the primary judge was duty-bound to take into account the overarching purpose set out in s 37M of the FCA Act, and I do not regard the primary judge as having given that overarching purpose any more prominence or weight than the majority of the High Court did in UBS.

328    Senior counsel for the Yammine interests also submitted that the primary judge had overstated the overlap in the material facts and evidence between the two sets of proceedings. First, it was submitted in relation to the overlap between the breach of fiduciary duty and “unjust enrichment” claims in Lantrak II, and all of the claims in Lantrak I except for the non-compete claim, that the overlap was attributed by the primary judge to the profitability of Lantrak NSW being relevant to both the price struck for the Yammine Parties’ shares in Lantrak NSW in Lantrak I and to the applicants’ fiduciary duty and account of profit claims in Lantrak II. It was then submitted that the profitability inquiry in Lantrak II would have differed from that in Lantrak I, in that Lantrak I focused on Lantrak NSW’s EBIT for the purpose of striking the price for the Yammine Parties’ shares, whereas Lantrak II would have focused on Lantrak NSW’s net profit or earnings per share for the purpose of determining whether the Liemant Parties breached their duties to the Yammine Parties by causing Lantrak NSW not to pay dividends to the Yammine Parties. While I accept that the relevant measure of profit is not identical, the analysis is substantially similar, except that in Lantrak I it was necessary to add back interest and tax expenses to net profit to arrive at an EBIT figure.

329    Second, it was submitted by the Yammine interests that the evidence in Lantrak I going to the formation of the commercial relationship between the Yammine Parties and the Liemant Parties, the original transfer of the RTS business to Lantrak NSW, and the conduct and profitability of the business through Lantrak NSW, were merely “contextual” matters, and were called in aid by the Yammine Parties to support their credit in that proceeding. Accordingly, it was submitted that it was not necessary for the Court to make findings about those matters in Lantrak I; however, in Lantrak II those matters would be necessary in order to determine the applicants’ $5 million claim. In my view, that submission understates the significance in Lantrak I of those matters. It was a major plank in the Yammine Parties’ case in Lantrak I that the manner adopted by the parties in forming their commercial relationship and engaging in the original transfer of the RTS business to Lantrak NSW in late 2016 provided a clear demonstration that Mr Yammine trusted Mr Liemant and was accustomed to doing business with him on a handshake without formal documentation, as the opening submissions of the Yammine Parties in Lantrak I emphasised. The centrality of those matters arose in Lantrak I because, in the absence of evidence concerning the nature of that initial transaction, it would have been very difficult for the Yammine Parties to demonstrate the rationality of their conduct when it came to the SPA, which would have had a major adverse impact on the plausibility of their claims based on the related conversations, and their claimed reliance on them.

330    In oral argument before us, senior counsel for the Yammine interests submitted that in relation to the “unjust enrichment” claim in Lantrak II there was not a substantial, or indeed any, degree of overlap with the claims in Lantrak I (T150.32-33). However, the so-called “unjust enrichment” claim appears to have been based on the proposition that Mr Yammine was short-changed in not having been paid the $5 million for the transfer of the RTS business to Lantrak NSW. That contention sits uncomfortably with the fact that the Yammine Parties’ case in Lantrak I was that the amount of $35 million which they claimed the Liemant Parties promised them reflected the value of the entire business of Lantrak NSW, not merely the 50% of that business which they were selling in October and November 2018. As I have indicated above in my reasoning in relation to Lantrak I, that was a substantial commercial benefit to the Yammine Parties, given that the value of the business had increased substantially in the two years since the initial $5 million transaction. I have also indicated in that reasoning that the price struck in the SPA of $13 million was very close to a figure of five times EBIT (being the formula used in the negotiations for the value of the entire business) on any conventional measure of EBIT at the time. Accordingly, the “unjust enrichment” claim in Lantrak II, as to the Yammine Parties being short-changed by non-payment of the $5 million agreed in late 2016 for 50% of the business, was inseparably connected to the transactions which were the subject of Lantrak I.

331    In my opinion, the reasoning of the primary judge in Lantrak II was entirely correct, and no error of any kind has been demonstrated. Accordingly, the following orders should be made in Lantrak II:

1.    The applicants be granted leave to appeal.

2.    The appeal be dismissed.

3.    The applicants pay the respondents’ costs of the application for leave to appeal and of the appeal.

Associate:

Dated: 26 September 2023