FEDERAL COURT OF AUSTRALIA

Rafeletos v Great Wall Resources Pty Ltd (No. 2) [2009] FCA 1396

Federal Court of Australia Act 1976 (Cth) s 51A

GEORGE RAFELETOS v GREAT WALL RESOURCES PTY LTD and ANOR

NSD 1988 of 2007

EMMETT J

17 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.     Great Wall Resources Pty Limited pay to George Rafeletos the sum of $2,557,076, and judgment be entered accordingly. 

2.     Great Wall Resources Pty Limited pay the costs of George Rafeletos of the proceeding. 

3.     Orders 1 and 2 be stayed, up to and including 11 December 2009. 

THE COURT GRANTS LEAVE:

4.     To Great Wall Resources Pty Limited, if so disposed, to file any application for leave to re‑open its case in relation to the assessment of damages, such application to be returnable before Emmett J for directions on 11 December 2009. 

5.     To George Rafeletos to file, if so disposed, any application for any further order as to costs, such application to be returnable before Emmett J for directions on 11 December 2009.

THE COURT DIRECTS THAT:

6.     Great Wall Resources Pty Limited file and serve no later than 4 December 2009 any notice of motion making any application referred to in order 4, together with any evidence upon which it intends to rely in support of any such application, including evidence explaining its failure to comply with the directions of the Court given on 11 September 2009.

7.     George Rafeletos file and serve no later than 4 December 2009 any notice of motion making an application referred to in order 5, together with any affidavits in support of any such motion.

8.     The proceeding be stood over for further directions on 11 December 2009. 

9.     The hearing fixed for Friday, 20 November 2009 be vacated.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                          The applicant, Mr George Rafeletos claims damages from the first respondent, Great Wall Resources Pty Limited, in respect of the repudiation of an agreement made between Mr Rafeletos and Great Wall in March 2002.  The parties agreed that the matter would proceed on the basis that the quantification of any damages to which Mr Rafeletos might be entitled would be the subject of further evidence if and when I concluded that Mr Rafeletos had established a right to damages against Great Wall. 

2                          On 19 June 2009, I provided to the parties my reasons for provisional findings that I had made, following the hearing of evidence to date.  In these reasons, I shall use terms as defined in the earlier reasons.  In those reasons, I concluded that the bargain made between Great Wall and Mr Rafeletos was that, in consideration of Mr Rafeletos’s procuring finance in the sum of $200,000, to enable Great Wall to pay the deposit under the contract for the purchase of the Yallah Property, Mr Rafeletos would be allotted 20% of the issued capital of Great Wall for a nominal consideration.  Great Wall would, thereafter, discharge the obligations of Mr Rafeletos in respect of the finance that he procured.  I found that Mr Capocchiano and Great Wall have repudiated that contract, such that it was open to Mr Rafeletos to terminate the contract and sue for damages for its breach.  That was one of the remedies claimed by Mr Rafeletos in the proceeding. 

3                          In my earlier reasons, I indicated my provisional view that damages should be determined by reference to the value that 20% of the issued capital of Great Wall would have had, at the date of judgment, if the only activity in which Great Wall had engaged after the date of the agreement had been the acquisition, development and sale of lots in the Yallah Property.  In light of the findings I made, I concluded that Mr Rafeletos was entitled to damages for repudiation of the agreement made with Great Wall in March 2002.  However, I indicated to the parties that those findings would be treated as provisional until the parties had had an opportunity of considering them. 

4                          I therefore listed the proceeding for directions on 7 August 2009 for the purpose of considering the further steps necessary for determination of the quantum of damages and to hear any application for leave to make further submissions in relation to my provisional findings.  I suggested to the parties that, prior to 7 August 2009, they identify any further argument or submissions that they wish to make in relation to the provisional findings, and that they identify the steps and directions necessary to proceed to a hearing on damages. 

5                          A singular lack of cooperation on the part of Great Wall has resulted in the proceeding continuing well beyond the time that had been intended.  On 14 July 2009, the solicitors for Mr Rafeletos wrote to Great Wall’s solicitors suggesting steps and directions necessary to proceed to a hearing on damages.  They proposed that an independent accountant be appointed to calculate the gross sales of property of Great Wall together with the current value of its stock of land.  From that, the expenses in developing and maintaining the land would be deducted to arrive at an amount, 20% of which would be paid to Mr Rafeletos.  They suggested that that would be the simplest way of dealing with the matter and that the actual market value of some of the later unrelated transactions might be the subject of specific terms of reference for the independent accountant.  There was no response to the letter of 14 July 2009 and, on 27 July 2009, Mr Rafeletos’s solicitors wrote again to Great Wall’s solicitors seeking a reply as a matter of urgency. 

6                          When the matter came back before me on 7 August 2009, counsel for Great Wall requested that Mr Rafeletos provide a brief outline by way of points of claim identifying the nature of the damages claimed and I directed Mr Rafeletos to provide Great Wall with such an outline.  I also urged the parties to agree on a timetable for any further hearing required in relation to the assessment of damages.  I listed the matter for further directions on 16 October 2009. 

7                          On 11 August 2009, a proposed timetable was submitted by the solicitors for Mr Rafeletos to junior counsel for Great Wall.  The timetable involved Mr Rafeletos providing points of claim on or before 14 August 2009 and Great Wall providing discovery on or before 2 October 2009 in relation to various categories of documents as follows: 

·          Copies of signed financial statements or other financial statements for Great Wall for the years ended 30 June 2007, 2008, 2009; and,

·          The following documents for each of the years ended 30 June 2003, 2004, 2005, 2006, 2007, 2008, 2009:

(i)         tax returns of Great Wall; 

(ii)        general ledger of Great Wall; 

(iii)       books of prime entry, including cash books and journals of Great Wall;

(iv)       bank statements and other vouchers of Great Wall; 

(v)        valuations and appraisals for various properties owned by Great Wall. 

The timetable also set out times for inspection of documents and the service of expert and lay witnesses concerning the assessment of damages. 

8                          Great Wall's solicitors responded on 12 August 2009, saying that they would agree only to the order for the provision of points of claim.  On 15 August 2009, points of claim were served on Great Wall’s solicitors.  The points of claim were not particularly informative and really gave no information at all.  They simply asserted that damages would be claimed equal to a value of 20%, by reference to all profits generated from sales of lots in the Yallah Property, and all unrealised profits in respect of unsold lots of the other property, together with consequential profits from the sale of lots in the Yallah Property, arising from the acquisition of properties at West Wyalong and Sussex Inlet.  No attempt was made in the document to set out the basis upon which damages might be calculated beyond those bald assertions. 

9                          In any event, the delivery of the document to Great Wall’s solicitors produced no response.  Further communications were directed to the solicitors, which ultimately resulted in the matter being relisted for directions on 11 September 2009.  That occurred without any great indication of a desire to cooperate on the part of Great Wall.  On 11 September 2009, Great Wall consented to orders along the lines that had been proposed on 11 August, namely, for discovery by 2 October 2009 of the categories of documents that I have described and for inspection and the filing of expert and lay witness statements.  The matter was listed for further directions on 20 November 2009. 

10                        The order for discovery made by consent on 11 September 2009 was ignored by Great Wall.  No explanation was provided for the failure to comply with the orders.  Some explanation for that may be inferred from the fact that, on 21 October 2009, Great Wall’s solicitors wrote to Great Wall and Mr Cappocciano serving notice of intention to cease to act.  A letter addressed to Mr Capocchiano suggested that there had been a failure on the part of Mr Capocchiano and Great Wall to give instructions to the solicitors.  At that stage, the proceeding was still listed for directions on 20 November 2009, and the solicitors, in their letter of 21 October 2009 to Mr Capocchiano, urged him to take immediate steps to arrange for representation on that day. 

11                        Having regard to the failure by Great Wall to comply with the order for discovery, Mr Rafeletos’s solicitors arranged for the matter to be relisted for directions on 30 October 2009.  Notice of the relisting was given to Great Wall’s solicitors.  On 30 October 2009, when the matter was called on for directions, the city agent for Great Wall’s solicitors attended and informed the Court that she had been instructed that the solicitors proposed to file a notice of ceasing to act.  I listed the matter for 17 November 2009. 

12                        On 5 November 2009, the solicitors for Mr Rafeletos wrote to Great Wall’s solicitors asking them to confirm that, if they were filing a notice of ceasing to act, they would inform their clients of the hearing fixed for 17 November 2009.  They responded by facsimile on 6 November 2009, confirming that they had written to Mr Capocchiano and Great Wall, informing them of the hearing for 17 November 2009.  On 11 November 2009, notice of ceasing to act was filed by Great Wall’s solicitors. 

13                        When the matter was called on for hearing this morning, Mr Capocchiano appeared in person.  In the absence of objection from counsel for Mr Rafeletos, I gave Mr Capocchiano leave to appear for Great Wall.  Mr Capocchiano asked for the matter to be adjourned.  He made assertions about having paid substantial sums of money by way of legal fees, without being given proper advice.  He asserted that he knew nothing about what was going on in the proceeding and that he did not propose to do anything unless told to do so by the Court.  As on earlier occasions, he became agitated.  He was accompanied by his wife, who also briefly addressed the Court, in a somewhat calmer fashion.  I urged both of them to seek legal advice if they wished to defend the proceeding. 

14                        However, I indicated that I was not disposed to adjourn the hearing in the absence of any explanation as to why the orders of the Court had been ignored hitherto.  I also indicated that, if I refused an adjournment and continued with the hearing, and concluded that Mr Rafeletos was entitled to damages, I would consider staying any orders that I made to enable Mr Capocchiano to obtain legal advice, with a view to making an application for leave to re-open Great Wall’s case in relation to the question of damages.  Mr Capocchiano indicated that he did not wish to stay any longer for a hearing, and left the court.  Having regard to the complete absence of any explanation as to why the respondents have ignored the Court's orders, I do not consider that there was any basis for granting a further adjournment to Mr Capocchiano and Great Wall.  Accordingly, I proceeded with the further hearing in the absence of the respondents. 

15                        Mr Rafeletos relies on evidence of Mr Darryl Hughes, an accountant, and Mr Harry Stefanou, a licensed valuer and licensed real estate agent.  Mr Hughes prepared a report, dated 16 November 2009, in relation to the damages suffered by Mr Rafeletos, calculated on the basis that I had suggested in my provisional findings of 19 June 2009.  Mr Stefanou provided evidence as to the valuation of lots in the Yallah Property that have not yet been sold. 

16                        The Yallah Property, when acquired in 2002, consisted of lot 10 in DP262279.  That parcel has subsequently been subdivided, and some of the parcels have been further subdivided.  As at today, the land comprised in lot 10 in DP262279 consists of lot 2 in DP1118481, lots 11 and 12 in DP1129850, and lots 101 to 117, inclusive, in DP1076242.  Lots 11 and 12 in DP1129850 were previously lot 100 in DP1076242. 

17                        Lot 10 was purchased by Great Wall for the sum of $1,600,000.  Mr Rafeletos provided $200,000 towards the purchase price, in the circumstances to which I referred in my provisional findings.  The balance of the purchase price for the Yallah Property came from further borrowings by Great Wall.  Following completion of the purchase by Great Wall, lot 10 was subdivided to produce the parcels to which I have just referred.  Up to June 2009, the sale of 13 lots in the subdivision had been completed by Great Wall.  Those sales related to lots 101 to 105, inclusive, 107, 110 and 114 to 117, inclusive. 

18                        Transfers registered with the land titles office in respect of the sales of those lots, showing the consideration received by Great Wall, are in evidence.  The total consideration shown in the transfers is $4,846,000.  Lot 100 in DP1076242, which is now lots 11 and 12 in DP1129850, is the subject of a contract for sale between Great Wall and V & M Davidovic Pty Limited.  The total sale price shown in a copy of an extract of the contract, which is in evidence, is $7 million.  In addition, according to oral evidence given at the earlier hearing, lot 111 is the subject of a contract for sale by Great Wall to Mr LeServe for a price of $325,000.  Thus, there are two contracts on foot under which Great Wall appears to be entitled to receive consideration in the total sum of $7,325,000.  There is nothing in the material before me to suggest that those transactions were negotiated otherwise than at arm’s length. 

19                        Finally, there are six lots remaining unsold.  Mr Stefanou has provided valuations of each of those lots.  The total value of the six lots, according to Mr Stefanou's valuations, is $3,110,000. 

20                        On the basis of those three figures, the total proceeds of sale and value of remaining lots, as at 19 June 2009, is $15,281,000.  The damages, however, must be calculated by reference to the net profit from the proposed venture, consisting of the acquisition, subdivision and sale of the Yallah Property.  Thus, there must be deducted from the notional proceeds of sale, the costs of developing, holding and selling the lots, as well as the original cost. 

21                        Having regard to the absence of cooperation on the part of Great Wall, some conjecture is required in relation to the assessment of those costs.  The evidence includes financial accounts of Great Wall for the years ended 30 June 2004, 2006 and 2007.  The accounts include comparative figures for the previous years.  Thus, there are figures available for Great Wall’s financial position in relation to each of the years ended 30 June 2003 to 2007, inclusive. 

22                        The accounts as at 30 June 2006 show development costs amounting to $869,091.  However, as at that time, Great Wall owned two other properties, one at Sussex Inlet and the other at West Wyalong.  In the absence of any other financial information, Mr Hughes has adopted a conservative approach and has assumed that the whole of the development costs of $869,091 relates to the Yallah Property. 

23                        Mr Stefanou, who has been a licensed valuer since 2006, and has been a licensed real estate agent practising in the Greater Illawarra area since 1993, expressed the opinion that $55,000 per block would be reasonable for site costs, and $20,000 per lot would be reasonable for council contribution fees.  That would amount to a total of $1,425,000 for all of the 19 lots involved.  However, Mr Stefanou considered that that figure was likely to be inflated because it is apparent that Great Wall performed a substantial part of the development work itself, without a profit or overhead margin, which Mr Stefanou estimated would be about 25%.  He, therefore, estimated that a more likely figure for the total cost of development was $1,068,000. 

24                        Mr Hughes estimates that the holding costs in respect of the Yallah Property would appear in the main to be interest on borrowed funds and land and water rates.  Mr Hughes carried out his exercise on the assumption that the proceeds of lots sold would be applied to reduce outstanding borrowings. 

25                        Mr Hughes adopted an interest rate of 5.75% over the period of the venture, having regard to the rate of interest charged to Mr Rafeletos in respect of the loan arranged by him with St George Bank.  Mr Hughes calculated a total interest expense of $801,120 for the period from the completion of the acquisition of the Yallah Property to June 2009.  Mr Hughes accepted that, although interest rates had varied over the period since the loan was taken out, he nevertheless considers that the rate of 5.75% is an appropriate basis for the calculation. 

26                        The land and water rates present further difficulty.  The accounts of Great Wall to which I have referred show land and water rates for the years entered 30 June 2003, 2004, 2005 and 2006 in the vicinity of $13,000 and $14,000.  However, the accounts as at 30 June 2007 show land and water rates of in excess of $30,000.  In the absence of any cooperation from Great Wall, it is a matter of conjecture as to how much of those rates are attributable to the Yallah Property.  In his original report, Mr Hughes estimated rates in the vicinity of $10,000 per annum.  That has been subsequently revised to be closer to $15,000 per annum.  Seven years’ rates have been calculated on that basis, amounting to $105,000. 

27                        Selling costs consist of agent's commission and legal expenses.  Both Mr Hughes and Mr Stefanou estimated agent's commission would be in the vicinity of 2.5% of the sale price.  That produces a figure of $382,025.  Finally, legal expenses in relation to the sale are estimated by Mr Stefanou at between $1,000 and $1,500 per lot.  On that basis, an allowance of $28,500 would be appropriate. 

28                        Mr Hughes finally determined, then, a net profit from the venture as at the date of my provisional findings of 19 June 2009.  The net effect of Mr Hughes's calculation is a net profit of $11,495,264, calculated as follows:

Total of Lots Sold                                          Schedule 1                       12,171,000

Unsold Blocks                                               Schedule 1                         3,110,000

Total Value                                                                    $15,281,000

Less:  Expenses

Original purchase price of Land               Paragraph 6                       1,600,000

Development Costs                                 Paragraph 29                        869,091

Holding Charges

Interest                                                  Schedule 7                           801,120

Rates                                                    Paragraph 39                        105,000

Selling Costs:

Agents commission                                 Paragraph 40                        382,025

Legal expenses                                       Paragraph 41                         28,500

Total Expenses                                                                $3,785,736

Net Profit                                                                                                                    $11,495,264

One fifth of that figure amounts to $2,299,053.  Interest on that amount, from 19 June 2009 to date, amounts to $85,033, on the basis that interest is allowed under s 51A of the Federal Court of Australia Act 1976 (Cth).  After adding in the balance outstanding of the St George Bank loan, which is a liability for which Mr Rafeletos continues to have personal responsibility, of $172,990, the total damages as at today would be $2,557,076. 

29                        I propose to order Great Wall to pay that sum to Mr Rafeletos.  It is also appropriate to order Great Wall to pay Mr Rafeletos’ costs of the proceeding.  However, for the reasons that I have already given, I consider that it is appropriate to stay those two orders to give Great Wall the opportunity, if it is so inclined, to apply for leave to re-open its case in relation to the question of assessment of damages. 

Associate:

Dated:         26 November 2009