FEDERAL COURT OF AUSTRALIA

Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 4) [2022] FCA 1

ORDERS

THE COURT DECLARES THAT:

1.    The Deed of Appointment and Removal of Trustee (the Removal Deed) made on 4 October 2018 by Brenda Van Niekerk (the Fourth Respondent), is a conveyance which was made with the intent to defraud creditors within the meaning of s 86 of the Law of Property Act 1936 (SA).

2.    The Removal Deed is void.

3.    All conveyances of property effected by the Removal Deed are void.

4.    The items listed in Annexure A to the Fifth Statement of Claim and described as the Fairfield Items were, at all material times from on or about 8 April 2016, the property of Fairfield Pastoral Holdings Pty Ltd (FPH) until such time as they were sold or transferred by it.

5.    FPH, in its capacity as trustee of the Piney Ridge Trust, is entitled, subject to account being taken of its use of $122,000 to discharge the Whale Beach Loan, to be indemnified from the assets of the Piney Ridge Trust in an amount of $314,741.95.

THE COURT ORDERS THAT:

1.    The First, Second and Third Respondents (Ridge Estate Pty Ltd, Steven Van Niekerk and Philip Van Niekerk) are collectively or individually to deliver up to the Second Applicant, Fairfield Pastoral Holdings No 1 Pty Ltd (FPH No 1), by 31 January 2022 the items listed in Annexure B to the Fifth Statement of Claim.

2.    There be judgment for the Second Applicant (FPH No 1) against the Second Respondent (Steven Van Niekerk) on the secret commissions claim in the sum of $195,000 inclusive of interest.

3.    There be judgment for FPH No 1 against Ridge Estate Pty Ltd on the cattle purchase claim in the sum of $42,720 inclusive of interest.

4.    Of the sums held by the Court in the Litigants’ Fund in relation to this Action, $273,178.36, together with the interest accrued on that amount, be paid out to FPH in part satisfaction of its claim to indemnity.

5.    The remaining amount held by the Court in the Litigants’ Fund continue to be held in the Litigant’s Fund, subject to the following orders:

(a)    if there are current proceedings in a Court at 4 April 2022 concerning the question of whether FPH took out the Whale Beach Loan in its capacity as trustee of the Piney Ridge Trust (Other Proceedings), FPH or the Respondents may apply to a Judge of the Court for an extension of the period in which the funds are so held, pending the determination of the Other Proceedings;

(b)    at the conclusion of the Other Proceedings, any person with an interest in the sum held in the Court may apply to a Judge of the Court for an order for the payment out of that sum; and

(c)    if at 4 April 2022, there are no Other Proceedings, any person with an interest in the sum held in Court may apply for an order as to its payment out.

6.    All other claims of the Applicants be dismissed.

7.    All remaining claims in the Respondents’ Cross-claim be dismissed.

8.    I will hear from the parties as to whether any order should be made for payment of some portion of the sum of $273,178.36 to Mr Roberto Lorefice.

9.    I direct the Registrar of the Court to refer a copy of this judgment, in particular the portion concerning the secret commissions, to the Director of Public Prosecutions in New South Wales.

10.    I will hear from the parties with respect to costs.

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

REASONS FOR JUDGMENT

WHITE J:

Introduction

1    Dr Andrew Hamilton and Mr Steven Van Niekerk met in September 2014. Out of that meeting, there developed a friendship and, in turn, their pursuit of interwoven business ventures. Over time, their relationship soured. The disputes between them became manifest in mid-2018 and, by October 2018, their relationship had broken down completely.

2    This judgment concerns the multi-faceted litigation emanating from that breakdown.

The parties

3    The first applicant, Fairfield Pastoral Holdings Pty Ltd (FPH), was registered on 2 February 2015. It was originally known as Regional Pastoral Properties Pty Ltd (RPP) but changed to its current name on 11 December 2015.

4    The two principal shareholders of FPH are Dr Hamilton and Cradle Estate Pty Ltd, a company associated with, and controlled by, Steven Van Niekerk. They each hold 500,001 shares. The other current shareholders are Jamie Dyer Investments Pty Ltd (2,778 shares), Petrichor Projects Pty Ltd (111,111 shares) and PPD (Investments) No 1 Pty Ltd (105,263 shares). Petrichor Projects is a company associated with Mr Vaughan King and PPD Investments a company associated with Mr Nicholas Peacock.

5    The second applicant, Fairfield Pastoral Holdings No 1 Pty Ltd (FPH No 1) is a wholly owned subsidiary of FPH. It was acquired by FPH on 6 February 2015.

6    Dr Hamilton is the sole director of both FPH and FPH No 1.

7    The four respondents are Ridge Estate Pty Ltd (Ridge Estate), Steven Van Niekerk, Philip Van Niekerk and Brenda Van Niekerk. Steven is the son of Philip and Brenda. For convenience in distinguishing between them in these reasons, I will refer to them as Steven, Philip and Brenda.

8    Ridge Estate was incorporated on or about 10 September 2013 and is the trustee of the Ridge Estate Trust which was established at about the same time. The sole share in Ridge Estate is owned by Andrew Van Niekerk, who is also a son of Philip and Brenda. Philip is the sole director of Ridge Estate.

9    Steven was declared bankrupt on 26 June 2014 and discharged from that bankruptcy on 27 June 2017.

An overview of the applicants’ claims

10    The applicants sue on multiple causes of action. It is convenient to identify them briefly at this stage.

Sham arrangements

11    The applicants allege that a number of appointments and transactions involving Steven and Ridge Estate and the assets associated with them were shams. A particular consequence, they allege, is that all of the assets held by Ridge Estate, whether in its own capacity or as trustee of the Ridge Estate Trust, are held as bare trustee for Steven.

Misleading or deceptive conduct

12    The applicants’ primary claim is one of misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law (the ACL) contained in Sch 2 to the Competition and Consumer Act 2010 (Cth) (the CC Act). The claim arises out of the agreement of Dr Hamilton and Steven to pursue forms of land investment and speculation. They hoped to identify and purchase properties which would, for reasons to be developed later, return handsome income or provide significant capital appreciation. Over time, there developed a plan to fund the purchases by soliciting investments from external investors.

13    Ultimately, the venture between Dr Hamilton and Steven failed. No properties were ever acquired. Dr Hamilton and Steven did attract two investors (the companies associated with Mr King and Mr Peacock respectively). Petrichor Projects invested $250,000 in July 2015 and a further $250,000 in November 2015. PPD (Investments) invested $250,000 in May 2016. As I understand it, subject to the outcome of this litigation, those investments have been wholly lost.

14    The negotiations between Dr Hamilton and Steven seemed to have commenced in earnest in about December 2014. They contemplated an agreement pursuant to which Ridge Estate and Steven would act as consultant to companies to be formed by them so as to identify, source and negotiate the acquisition of suitable pastoral land with a view to them profiting from compensation payments paid in connection with the extraction of coal seam gas (CSG) from that land. Dr Hamilton referred to this as “the Fairfield Pastoral Model”. In exchange, the companies would pay a consultancy fee to Ridge Estate of $15,000 per month exclusive of GST (the Consultancy Fee). The applicants referred to this agreement as “the Proposed Consultancy Agreement” (the PCA).

15    A written consultancy agreement of the kind pleaded by the applicants between FPH, on the one hand, and Ridge Estate and/or Steven, on the other, was never executed. However, commencing on 12 February 2015, consultancy fees were paid to Ridge Estate. These continued reasonably regularly until July 2017. In addition, the applicants provided Steven with several motor vehicles and paid substantial amounts by way of expenses.

16    The initial funding of FPH’s operations was by loans totalling $120,000 from the Hamilton Family Trust. Those loans were repaid in May 2016 using part of the funds invested by PPD Investments.

17    On 2 November 2018, the applicants terminated the consultancy agreement with immediate effect.

18    The applicants plead that, throughout the period from February 2015 until October 2018, Dr Hamilton (and through him FPH and FPH No 1) “believed and intended” that the PCA, or a contract of its kind and nature, “was in fact in existence as a binding contract” between FPH, Ridge Estate and Steven, and that Steven knew that Dr Hamilton had that belief and intention.

19    The applicants allege that “at all material times” (that is, the whole of the period between February 2015 and 2 November 2018), Steven (and through him Ridge Estate) had not intended to perform any of the conduct, duties and obligations promised under the PCA or of a contract of its kind. They allege further that while Steven and Ridge Estate had represented to Dr Hamilton that Steven was identifying, sourcing and negotiating with the owners of suitable properties for purchase or lease by FPH, he was in fact doing no such thing. Instead, Steven and Ridge Estate had only purported to perform the required duties.

20    The applicants allege that the representations of Steven and Ridge Estate were misleading or deceptive, in contravention of s 18 of the ACL, that they were misled, and that Philip was a person “involved” within the meaning of s 75B of the CC Act in those contraventions. They seek, pursuant to ss 236 and 237 of the ACL, recovery of the Consultancy Payments ($424,684.40), recovery of the payments made in respect of the motor vehicles ($248,286.32), recovery of the payments made to Steven by way of reimbursement of expenses ($288,119.26), and recovery of the amounts said to have been loaned to Ridge Estate by way of cash advances which, after some setting off, are said to amount to $82,321.70.

21    The applicants’ claim in short is that Steven, and through him, Ridge Estate, engaged in a long running fraud by which he induced them to believe that a consultancy arrangement was in place and took the benefits under the arrangement, while never intending to perform the duties expected of him under the arrangement or under the PCA.

Restitution

22    The applicants mount, in the alternative, a claim of restitution in respect of the same sums it seeks to recover under the ACL on the basis, principally, of an alleged total failure of consideration.

Conversion and detinue

23    The applicants allege that, in December 2015, FPH No 1 purchased from Ridge Estate a Honda quad bike, a Honda tow-behind slasher and a John Deere ride-on mower for which FPH No 1 paid a purchase price of $22,000. They also allege that FPH No 1 was the owner of other items of equipment (together the FPH No 1 Items). The applicants claim that Ridge Estate, Steven and Philip have wrongfully failed and refused to deliver up possession of the FPH No 1 Items. They had made a like claim in respect of the motor vehicles supplied to Steven but, earlier in the proceedings, the respondents consented to an order for delivery of the vehicles, and they complied with that order.

24    The applicants allege that the value of the FPH No 1 Items said to be retained by the respondents is approximately $25,000.

25    The respondents admit that the FPH No 1 Items are owned by FPH No 1 and accept that FPH No 1 is entitled to an order for the delivery up of those Items.

Recovery of loans

26    The applicants allege that between July 2015 and August 2018, FPH No 1, at Steven’s request, made loans to Ridge Estate by way of cash or EFT advances (the RE Loan). They allege that these totalled $240,934.60 and, after allowing for credits, seek to recover $82,321.70 of that amount. The respondents deny this claim and say that any payments made were payments in advance for expenses to be incurred by Steven in the conduct of the business. They also raise other answers to the claim.

Secret commissions

27    The applicants allege that in early 2018, AusPods Property Pty Ltd (AusPods Property) appointed FPH No 1 as Project Manager for the refurbishment and upgrade of a warehouse at Lot 5 Pine Road, Yennora in New South Wales (the Yennora Property) and that FPH No 1 appointed Steven to act as the onsite Project Manager and its agent for those works. They allege that, in the performance of his work as Project Manager, Steven negotiated contracts with two contractors, AuqSap Pty Ltd trading as Sealutions Industrial Flooring (Sealutions) and with a Mr Raymond Theuma. Mr Joe Pasqua is a director of Sealutions. The applicants allege that between March and May 2018, Steven required Sealutions to pay amounts to him, in the nature of secret commissions, in respect of its contracted works, which amounts Steven retained for his own use. They allege that between June and October 2018, Steven required Mr Theuma to pay amounts to him, also in the nature of secret commissions, in respect of his works which, again, Steven retained for his own purposes.

28    The applicants allege that Steven received amounts totalling $115,000 from Sealutions and $60,000 from Mr Theuma. They allege that these were secret commissions for which Steven must account to FPH No 1.

A trustee’s claim to indemnity

29    Ridge Estate is the registered proprietor of Lot 1, 252 Piney Ridge Road, Brukunga, in South Australia (Lot 1). Early in 2016, the neighbouring property (Lot 2, 252 Piney Ridge Road, Brukinga (Lot 2)), became available for purchase. Both Lot 1 and Lot 2 are rural properties. The applicants allege that Steven wished to acquire Lot 2 but was not in a position to do so.

30    The applicants plead that Dr Hamilton and Steven agreed upon an arrangement by which:

(a)    a trust known as the Piney Ridge Trust (the PRT) would be established;

(b)    FPH would be the initial trustee of the PRT;

(c)    FPH, in its capacity as trustee of the PRT, would:

(i)    enter into a contract to purchase Lot 2 for a purchase price of $750,000;

(ii)    pay a deposit of $30,000 from its own funds;

(iii)    provide a further amount of $59,500 from its own funds towards the purchase price; and

(iv)    borrow $525,000 from NAB secured by a mortgage over Lot 2 to complete the purchase price.

31    FPH was also to raise $182,130 from NAB by way of an equipment loan and goods mortgage (the Equipment Loan) and Dr Hamilton was to provide a personal guarantee to NAB in respect of FPH’s indebtedness to it.

32    The applicants plead that the arrangement between Dr Hamilton and Steven contemplated that Steven would, within a short period, arrange refinancing of Lots 1 and 2 so as to repay the amounts advanced by FPH and discharge FPH’s indebtedness to NAB (which would also involve a release of Dr Hamilton’s guarantee). FPH was appointed the trustee of the PRT on or about 31 March 2016 and it completed settlement on the purchase of Lot 2 on 8 April 2016, in accordance with the arrangements set out above. The applicants claim that the respondents did not obtain the refinance contemplated.

33    By a deed executed on 4 October 2018, Brenda exercised her power as appointor of the PRT to remove FPH as trustee and to appoint Ridge Estate in its place. Subsequently, the respondents directed FPH to convey Lot 2 to Ridge Estate. They assert that FPH failed to do so and was thereby in breach of duty. The applicants contend that the Removal Deed is voidable under s 86 the Law of Property Act 1936 (SA) (the LoP Act) and seek a declaration that it is void.

34    FPH also asserts an entitlement to an indemnity in respect of the amounts it has outlaid in its capacity as trustee of the PRT. On 26 March 2021, on the applicants’ application, the Court made an order for judicial sale of Lot 2 (Fairfield Pastoral Holdings Pty Ltd v Ridge Estate Pty Ltd (No 3) [2021] FCA 292 (the Judicial Sale Judgment)) and settlement on the sale occurred on 5 July 2021. In accordance with the Court’s orders, the proceeds of the sale, after deduction of the amounts secured by mortgage over Lot 2, have been paid into Court to await the determination of the proceedings. The amount paid in was $375,178.36. Pursuant to orders made on 31 August 2021, a further $22,000 (the proceeds of the sale of hay) was paid into Court.

35    FPH seeks an order as to its entitlement to indemnity and an order that it is entitled to exercise its right of indemnity as trustee against the whole of the amounts paid into Court. The entitlement of FPH to such an order will have to take account of the fact that FPH discharged a loan secured by mortgage over Lot 2 about which the Court was not informed when making the order for judicial sale and which FPH had not, at that time, sought to vindicate as a liability of the PRT.

Insurance proceeds

36    The applicants allege that in 2016 and 2017, Steven, purporting to act on behalf of FPH but without its authority, made two claims on the insurance policy held by FPH in respect of Lot 2 and caused the insurer (QBE Insurance (Australia) Limited (QBE)) to pay those proceeds to himself and/or Ridge Estate and not to FPH. FPH claims the insurance proceeds of $62,000.

The cattle purchase and agistment agreement

37    FPH No 1 alleges (and the respondents admit) that in June 2016, it sold 40 cattle to Ridge Estate for a purchase price of $87,120. It claims that Ridge Estate has paid only $49,040 of that purchase price. FPH No 1 claims the balance of $38,060 as a debt due and owing to it.

38    The respondents acknowledge that $37,720 remains owing in respect of the cattle but claim that there was an agreement between Dr Hamilton and Steven that this amount would be set off against amounts owing by FPH to Ridge Estate. There is, however, no pleading concerning the claimed set off.

39    FPH alleges that it agreed with Ridge Estate and Steven on about 1 June 2016 to agist on Lot 2 the cattle which Ridge Estate had purchased from it. It alleges that Ridge Estate has failed to pay the agistment fees and claims $37,720 as a debt due and owing to it.

Licence of Lot 2 - peppercorn rent

40    The applicants plead that, in early 2018, Steven represented to a Mr Bayes that he had the authority of FPH to grant him a licence to occupy Lot 2; that subsequently, Ridge Estate and Steven (purporting to act as FPH’s agent) made an agreement with Mr Bayes by which he could occupy Lot 2 in consideration of payment of $12,500 to Ridge Estate and $1 to FPH. They allege that effect was given to this arrangement without any agreement from FPH. FPH alleges that this conduct of Ridge Estate and Steven was misleading or deceptive in contravention of s 18 of the ACL and that it has thereby suffered loss and damage. It claims damages of $60,000 in respect of this alleged loss.

An overview of the respondents’ cross-claim

41    Ridge Estate and Steven bring a cross-claim against FPH, Dr Hamilton and FPH No 1. Elements of the Cross-Claim were struck out on 26 March 2021 by reason of serious procedural defaults by the respondents – see the Judicial Sale Judgment at [102]-[133].

42    Of the remaining claims, the respondents pursued only a claim with respect to the equipment of Ridge Estate which the respondents alleged had been misappropriated by Dr Hamilton, FPH or FPH No 1. As pleaded, Ridge Estate makes claims for the return of the equipment, accounting with respect to the proceeds of those items sold by FPH and damages for conversion or detinue. However, in the final submissions, Ridge Estate pursued only a claim for payment of the amount it alleges FPH had agreed to pay for the items, namely, $240,713.

The applicants’ witnesses

43    The applicants led evidence from Dr Hamilton, Mr Vaughan King (whose company Petrichor Holdings invested in FPH), Mr Bernays, Mr Pasqua, Mr Theuma, and from Mr Bayes. With the exception of Mr Bayes, the evidence in chief of all the witnesses was contained in affidavits. Mr King and Mr Bernays were not required to attend for cross-examination on their affidavits.

44    I considered the evidence of Mr Pasqua, Mr Theuma and Mr Bayes to be honest and reliable. The respondents did not contend to the contrary.

45    Dr Hamilton is a cardiologist and obviously a person of some intelligence. However, he was an unimpressive witness. At several points, his evidence gave the impression that it was a narrative which Dr Hamilton had constructed, or reconstructed, from the written materials. That is to say, it was an account on which Dr Hamilton had settled in retrospect, drawing on those parts of the records which he thought supported, or could be adopted to support, his narrative. I think that this explains in part why Dr Hamilton said so often that his omission to mention or disclose matters in his evidence was attributable to “oversight”. The “oversight” was a function of the way Dr Hamilton had selected the matters which fitted his narrative.

46    Significant parts of Dr Hamilton’s evidence were marked by muddled thinking, inattention to detail and incoherence. It was difficult to believe that Dr Hamilton really could have been as incredulous as he seemed in his dealings with Steven or as his own counsel described it, so “big a sucker”.

47    I considered that Dr Hamilton well appreciated where his interests lay in this litigation and there were times when I thought it obvious that that appreciation and the obvious antipathy between him and Steven had led to the confection of evidence.

48    It did Dr Hamilton no credit that he had been prepared in the pursuit of the affairs of FPH and FPH No 1 to issue documents in the nature of information memoranda to potential investors which he knew to contain falsehoods concerning material matters. It also did him no credit that the evidence revealed other occasions when he had been willing to make false statements to others in the pursuit of his own ends.

49    There were numerous instances in Dr Hamilton’s evidence in which he sought (inappropriately in my view) to shift responsibility for his conduct to Steven.

50    Generally, therefore, I have considered it appropriate to exercise considerable caution before acting on Dr Hamilton’s evidence. I have attached greater weight to the contemporaneous documents and the inferences arising from them.

The respondents’ evidence

51    The respondents led evidence from Steven only. They had filed and served an affidavit from Philip in anticipation of him giving evidence but he was not called. Philip and Brenda were present during the trial.

52    Steven is 46 years old and left Queensland University of Technology in 1999 part way through a Bachelor of Business course. Steven described himself as a “property acquisition consultant” and said that his occupations since leaving University have principally been in the purchase, letting, development and selling of real estate. Steven said that his work experience included one year as a consultant in the head office of Ray White Real Estate in Brisbane; a period with Watpac Constructions; a period with Indigo Group (a Brisbane based property development company); four years with RSL Care working in the acquisition of land for its aged care facilities; and a period with Queensland Gas Corporation (QGC) in 2010-2011.

53    Steven also said that he had pursued property development in his own right since leaving university but had suffered as a result of the Global Financial Crisis (GFC) in 2008. His debts had been such that, on 26 June 2014, he and his wife had entered bankruptcy on their own petition.

54    Steven said that he suffers from dyslexia. On many occasions in his evidence, Steven asked for a document to be read to him so that he could better follow it. He also said that, by reason of his dyslexia, it had been his practice to make use of audio books and to convert written material into email format so that his computer could “read it” to him. Steven said that he had preferred oral rather than written communications with Dr Hamilton. There was a seeming challenge at the commencement of the cross-examination to Steven’s claim of dyslexia and it does seem that the condition may not have been the subject of a formal medical diagnosis. However, I accept that Steven does suffer from dyslexia and that that hampers to some extent his ability to comprehend readily the written word.

55    In making my assessment of Steven’s evidence, I have endeavoured to keep his dyslexia firmly in mind. However, even taking that condition into account, Steven was a particularly unimpressive witness. It is plain that he is a person who is careless with the truth. Much of his evidence was marked by arrogance, evasiveness and bluster. There were multiple occasions when he had to be directed to answer the cross-examiner’s question. On occasions, his evasiveness extended to refusals to acknowledge the truth of a matter until he had been taken to the written record concerning it. There were times when he would advance alternative accounts or explanations which were no more than speculative possibilities for the matter in question.

56    At times, Steven displayed an attention to detail, but at other times, when it seemed to suit him, he professed a disinterest in matters of detail.

57    During his evidence, Steven seemed ever ready to make gratuitous remarks which were disparaging and critical of Dr Hamilton. Even allowing for the antipathy which now exists between Steven and Dr Hamilton, this did not add to his credibility.

58    The evidence to which I will refer when addressing the applicants’ secret commissions claim and to a lesser extent the evidence concerning the licence to use Lot 2 indicates that Steven is a person who is willing to engage in dishonest conduct. That too undermines his credit worthiness.

The conflicting accounts of Steven’s wealth and bankruptcy

59    It is convenient to make findings at this point concerning the evidence about two inter-related topics which reflected poorly on the credit of both Dr Hamilton and Steven, but more so on Steven. That is the evidence about what Steven is said to have told Dr Hamilton about his wealth and his bankruptcy.

60    In the affidavit containing his evidence in chief, Dr Hamilton deposed that, at or about the time of their first meeting, Steven had told him that he was “a property developer and had developed a significant portfolio leading up to the [GFC] but that as a result of the [GFC] he [had been] forced to sell off his property portfolio”. He also deposed:

[6]    Steven did not tell me that he was bankrupt at any stage prior to us meeting, and when I asked him whether he had become a bankrupt as a result of the GFC, he told me that he did not.

61    In the affidavit which he filed in reply to the affidavit containing Steven’s evidence in chief, Dr Hamilton gave a much enlarged account, namely, that Steven had told him at one of their early meetings that:

[13.2.1]    he had been very successful in the apartment space in Brisbane, where he still controlled over 100 apartments;

[13.2.2]    he had moved to Adelaide with his family to live on a large property that he had purchased that was worth $4.5M in order to start living the "River Cottage life";

[13.2.3]    he was the under bidder for the Crafers hotel - where he had placed a bid for $2.5M;

[13.2.4]    he continued to have Gold Coast Apartment assets that he looked after and which were cash flow positive;

[13.2.5]    he had recently purchased a JD tractor for $130k for which he paid cash;

[13.2.6]    he had made a lot of money buying properties in Chinchilla that had coal seam gas wells on them, and that as a result, he collected disturbance payments from the gas companies; and

[13.2.7]     he had been so successful he no longer had to worry about working.

62    In cross-examination, Dr Hamilton said that Steven had portrayed himself as financially successful and independently wealthy; that Steven had said that he had a “120 million dollar property portfolio”; that because of the GFC he had to sell some of the property portfolio; that Steven had said that he had to sell some of the apartments which he controlled but still had control over 100 apartments; that the assets which Steven was continuing to hold were those which survived the GFC; and that Steven had said that when the banks “turned off the taps” after the GFC, he had to sell off some of his property portfolio and had done a deal with Westpac using the Financial Ombudsman. Dr Hamilton disagreed that he had been prompted to ask Steven whether he had gone bankrupt because of the difficulties following the GFC about which Steven had told him.

63    As counsel for the respondents submitted, there is an incongruity between Dr Hamilton’s evidence that Steven had told him that, even after the GFC, he still controlled over 100 apartments in Queensland, on the one hand, and his evidence that he had been prompted to ask Steven whether he had gone bankrupt in consequence of the GFC, on the other. There is also an incongruity in Dr Hamilton’s evidence that Steven had told him in their initial meeting that he was wealthy enough that he did not need to work again, while saying, at or about the same time, that he needed the consultancy payment of $15,000 per month for “cashflow”.

64    Dr Hamilton’s evidence about these matters was marked by inconsistency. I am, however, willing to accept that part of the inconsistency may be attributable to Steven imparting the information recounted by Dr Hamilton over a series of meetings and to Dr Hamilton’s dupability having the effect that he did not recognise the inconsistencies at the time. I note in this respect Dr Hamilton’s evidence that he had regarded Steven as “very engaging, interesting and charismatic”. It was also very evident that Dr Hamilton had been captivated by the money making opportunity which Steven portrayed in telling him about CSG disturbance payments. My impression is that Dr Hamilton’s greed and gullibility meant that he did not bring any sense of incredulity to bear when listening to Steven’s tales of his wealth and success in Queensland and thereby overlooked the inconsistencies in Steven’s accounts.

65    To my mind, it seems doubtful that Dr Hamilton would have been prompted to ask Steven whether he had gone into bankruptcy given the impression of wealth and success which Steven was conveying. However, it was not suggested that the Court should disbelieve Dr Hamilton’s evidence that he had made such an enquiry. Accordingly, I will accept that, in the context of Steven telling Dr Hamilton of his financial success before the GFC and the effect which it had had, Dr Hamilton did ask Steven whether he had gone bankrupt. For the reasons to be given shortly, I consider it likely, and so find, that Steven gave a negative answer to that question.

66    Steven’s evidence concerning his bankruptcy raised serious matters concerning his credit worthiness. In four passages in the affidavit containing his evidence in chief, Steven deposed on his oath to having entered into a composition with his creditors pursuant to s 73 of the Bankruptcy Act 1966 (Cth). Section 73 is in Div 6 in Pt 4 of the Bankruptcy Act which provides a means by which a bankrupt may enter into a composition or scheme of arrangement with his or her creditors and achieve an annulment of the bankruptcy.

67    Steven claimed to have made a s 73 composition, as he deposed:

[24]    In June 2014, my wife and I presented debtors' petitions. We subsequently entered into compositions with our creditors pursuant to s. 73 of the Bankruptcy Act. Westpac was able to realise sufficient funds from the sale of secured properties to be repaid in full.

…

[67]    … During the course of these discussions [with Dr Hamilton in December 2014]:

…

[67.5]    In discussing why I did not want to deal with banks and raise funds, I said to Andrew that my debt levels had been too high following the Global Financial Crisis and that I had done a section 73 arrangement with my creditors under the Bankruptcy Act and that I was on the bankruptcy list. Andrew said that he did not care, and as long as I could bring in properties to purchase, he could raise the funds. Andrew also said that I might have to show him how to do a section 73 arrangement some day, as he could see it coming, because if not for his parents, he would have gone under due to PODS during the global financial crisis himself.

[68]    By late January 2015, Andrew and I had agreed in our discussions that:

…

[68.4]    Andrew would be the director of the company. I said to Andrew that, as he was a doctor and had the capacity to raise and borrow funds, and I was of no use not being a doctor and having done a section 73, he would need to be the director of the company. He agreed with this.

[74]    Andrew was the sole director of both Fairfield and Fairfield No 1. I could not be a director because I had done the section 73 at the time, which Andrew knew, and I did not want to take on an administrative role as it was not my strength.·

(Emphasis added)

68    Steven acknowledged that he had sworn that the contents of his affidavit were true and correct.

69    In an earlier affidavit sworn on 18 January 2019, Steven had deposed:

[16]    In June 2014 I presented a debtor's petition and made an arrangement with my creditors pursuant to section 73 of the Bankruptcy Act. During the course of my bankruptcy, several of my properties were sold which realised sufficient funds to pay off all of my debts. My bankruptcy was discharged on 27 June 2017.

(Emphasis added)

70    At the commencement of his oral evidence in chief, Steven said that he wished to correct [24] and [74] in the affidavit containing his evidence in chief. His “correction” of [24] comprised:

We did not follow through with the composition, which is – but we – because of the way in which the section 73 was done, we were on the bankruptcy list, and that discharged in 2017.

71    In respect of [74], Steven gave the following “correction”:

Andrew knew that it was about the fact that I was on the bankruptcy list due to thinking that I was going to do the annulment under section 73.

72    As is apparent, the “correction” of [24] is internally inconsistent. In relation to the correction” of [74], there is no evidence to support the view that a s 73 composition was in prospect at the time of Steven’s discussions with Dr Hamilton and Steven did not otherwise make a claim to that effect.

73    Steven did not seek to correct the assertions in his affidavit that he had told Dr Hamilton that he and his wife had made an arrangement pursuant to s 73. Nor did the respondents apply to amend the plea in [9(a)] of the Amended Defence that Steven had told Dr Hamilton that he had “made an arrangement with his creditors pursuant to s 73 of the Bankruptcy Act 1966”.

74    Steven was not asked what he meant by saying that he was “on the bankruptcy list”. It seemed to be no more than a statement that he had been bankrupt.

75    In cross-examination, Steven gave conflicting answers concerning his evidence with respect to an arrangement under s 73. At one stage, he said that he had entered into a s 73 arrangement; at another stage that he and his wife had “never followed through with doing the annulment” and that they had been discharged from bankruptcy after the expiration of three years; at another stage that he and his wife had started the process towards a s 73 composition but had never finished it; at another stage that a proposal to his creditors had been put together and “sent out”; at another stage that he had had an accounting firm in Nerang acting for him in propounding the composition; and at another stage that he had not needed to proceed with the proposed composition “because everyone was happy … Westpac got what they wanted … and everyone else – at the end of the day there wasn’t – didn’t feel that anything was outstanding” so that a s 73 arrangement “wasn’t needed”. At one stage, Steven said that all his creditors had been paid in full (he had made the same claim in his affidavit of 18 January 2019) but later agreed that none of his unsecured creditors had received any payment.

76    Despite it being obvious that Steven’s credit was being seriously impugned by reference to his evidence concerning a s 73 composition, the respondents did not adduce any evidence from an “accounting firm in Nerang” to support the claim that Steven had been assisted in preparing a s 73 proposal. They had had the opportunity to do so if they wished, had such evidence been available. Nor did the respondents adduce other evidence to support Steven’s various claims concerning a s 73 composition.

77    The falsity of Steven’s claim concerning a s 73 composition and of his claim that all his creditors had been paid in full was made apparent by a letter dated 23 January 2019 from Steven’s trustee in bankruptcy, Mr Leroy, who said:

1.    A proposal pursuant to Section 73 of the Bankruptcy Act 1966 has not been proposed nor accepted by the creditors of Mr Steven Van Niekerk and Mrs Gillian Van Niekerk by way of passing a special resolution which would have the effect of annulling the bankruptcy; and

2.    A dividend to creditors has not been paid in the abovementioned estate.

78    Despite acknowledging that he had not made a s 73 arrangement, Steven maintained in cross-examination that he had told Dr Hamilton that he was bankrupt and that he had made such an arrangement. Dr Hamilton denied that that was so. As already indicated, this is a matter on which I accept Dr Hamilton’s evidence, given the improbability on my assessment that Steven would have been willing to disclose his bankruptcy. He appears to have been intent on conveying the impression that he was a successful property dealer/developer. Disclosing his bankruptcy would have been inconsistent with such an impression. The reasons for Steven moving to South Australia in late 2013-early 2014 were not explored in his cross-examination (Dr Hamilton said that Steven had told him that he wished to start living the “river-cottage life”). It may well have been because Steven wished to make a fresh start given his looming bankruptcy in Queensland. Accordingly, I considered Dr Hamilton’s denials that Steven had told him that he was bankrupt and that he had “done a s 73” to be plausible and accept them.

79    In the final submissions, counsel for the respondents raised the possibility that Steven had genuinely, but mistakenly, believed that he had entered into, or at least proposed, a s 73 composition. I do not accept that as a realistic possibility. Steven did not proffer this as an explanation and there are limits to the extent to which the bounds of credibility may be stretched. The more obvious explanation is that Steven invented the claim of a s 73 composition with a view to giving a veneer of respectability to his bankruptcy.

80    I am satisfied that Steven’s evidence was false in the following respects:

(a)    he and his wife did not make, let alone propose, an arrangement with their creditors pursuant to s 73 of the Bankruptcy Act;

(b)    Westpac did not receive a sufficient amount from the enforcement of its securities to discharge Steven’s indebtedness to it;

(c)    Steven did not tell Dr Hamilton that he had made a s 73 arrangement with his creditors. He did not even tell Dr Hamilton that he had been bankrupt, let alone that he was an undischarged bankrupt;

(d)    Dr Hamilton did not say that he did not care about Steven having made a s 73 composition;

(e)    Dr Hamilton did not say that Steven may have to show him how to do a s 73 arrangement some day; and

(f)    Steven did not tell Dr Hamilton that he would not be a director of FPH because he had “done a section 73”. That is to say, Steven had not given Dr Hamilton the explanation he claimed for not wishing to be appointed a director of FPH and FPH No 1.

81    I am satisfied, keeping in mind the gravity of the finding, that Steven’s accounts of having told Dr Hamilton that he had made a s 73 composition, together with the conversations which he said followed that disclosure, were fabrications. They cannot be passed off as a “misunderstanding”, as Steven claimed at one stage. The fact of the matter is that Steven was discharged from his bankruptcy after three years by operation of law – see s 149(3) of the Bankruptcy Act.

82    I am also satisfied that Steven’s claim that his creditors had been paid in full is preposterous. Mr Leroy’s report to creditors of 21 July 2014 indicated that, in his statement of affairs, Steven had disclosed debts to unsecured creditors totalling $18,987,695.37 and Mr Leroy’s letter (quoted earlier) stated that there had been no dividend to creditors.

83    I note that the discussions with Dr Hamilton in which Steven says that he told Dr Hamilton of having made a s 73 composition occurred within 6-7 months of the sequestration order being made, and probably earlier. Steven knew at the time of those discussions that he had not made a s 73 composition, or even a proposal for such a composition. It follows that, if I had found that Steven had told Dr Hamilton at the times he claims that he had “done a section 73”, a finding that he had lied to Dr Hamilton in that respect would have been inevitable. However, I consider that the lie is in his evidence to this Court that he had told Dr Hamilton that he had made a s 73 composition, and in the statements which he attributes to Dr Hamilton by way of response.

84    Steven’s willingness to fabricate the claims of a s 73 composition is one of the several matters which has caused me to doubt his credibility more generally.

Other matters bearing on the assessment of Steven’s evidence

85    It did Steven no credit that he had sworn an affidavit on 12 February 2021 in these proceedings in which he deposed that he was a director of Ridge Estate, and said that he had been appointed on 8 February 2021, when an ASIC search recorded that he had been appointed only on 12 April 2021. Moreover, although Steven had previously been a director of Ridge Estate, he had ceased to hold that office on 31 August 2020. This seemed to be another instance of Steven’s carelessness with the truth.

86    Steven also agreed that Ridge Estate had in 2016 been paid GST on the amounts it received from FPH but had not been remitting them to the Australian Taxation Office (ATO). He claimed that Ridge Estate had not been obliged to do so at the time. Ridge Estate first lodged Business Activity Statements (BAS Statements) with the ATO on 31 August 2017. These related to periods commencing in October 2013. Steven endeavoured to explain this by saying that he had understood that Ridge Estate had a “four-year holiday for the repayment of GST”. He claimed to have been told by Ridge Estate’s accountant that it did not have to “lodge GST” for the first four years but that the lodgements had to be done within that period. I regarded that claim as implausible.

87    There are other instances of Steven engaging in, or being willing to engage in, dishonest conduct. One is a request to Mr Bernays that he should factor into the purchase price for the sale of his interest in Original Fairfield the repayment of a personal loan of $60,000 which he had made to Steven. The consequence is that FPH would have been meeting Steven’s personal liability.

88    Another instance was of Steven’s conduct in or about May 2017 in causing a Disturbance Payment made by QGC which was due to Original Fairfield to be paid into FPH’s bank account. This was done without the knowledge or consent of Mr Bernays.

89    As noted, the respondents did not seek to cross-examine Mr Bernays.

90    The consequence is that I have regarded Steven’s honesty generally as doubtful and have thought it appropriate to regard his evidence with considerable circumspection. When evaluating his evidence, I have considered whether it is supported by contemporaneous documentation or is otherwise consistent with other matters which I do accept. That is not to say that I do not accept any of Steven’s evidence. To the contrary, there are some matters on which I do accept his evidence.

The misleading or deceptive conduct claim

91    Section 18 provides (relevantly):

A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

92    Section 236 provides (relevantly):

(1)    If:

(a)    a person (the claimant) suffers loss or damage because of the conduct of another person; and

   (b)    the conduct contravened a provision of Chapter 2 or 3;

the claimant may recover the amount of the loss or damage by action against that other person, or against any person involved in the contravention.

93    The principles governing the application of s 18 are well established. See, for example Australian Competition and Consumer Commission v Dukemaster Pty Ltd (ACN 050 275 226) [2009] FCA 682 at [10] and the authorities cited therein; Australian Competition and Consumer Commission (ACCC) v Coles Supermarkets Australia Pty Ltd [2014] FCA 634, (2014) 317 ALR 73 at [38]-[46]. They include:

(a)    the conduct must be misleading or deceptive or likely to mislead or deceive. Whether conduct has that character is a question of fact, to be determined on the basis of the evidence relating to the alleged conduct and the surrounding facts and circumstances: Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60; 218 CLR 592 at [109];

(b)    a representation is false if it is contrary to the relevant fact and misleading if it has a tendency to lead into error. The causing of confusion or questioning is insufficient; it is necessary to establish that the ordinary or reasonable consumer is likely to be led into error;

(c)    the conduct must lead or be capable of leading the person into error, and the error must result from the conduct. That is, there must be a sufficient nexus between the impugned conduct and the misconception or deception;

(d)    conduct is likely to mislead or deceive if there is a “real or not remote chance or possibility regardless of whether it is less or more than fifty percent”: Australian Competition and Consumer Commission v Metcash Trading Ltd [2011] FCAFC 151; (2011) 198 FCR 297 at [57];

(e)    the application of the provision involves an objective test and is not confined to conduct that is intended to mislead or deceive: Parkdale Custom Built Furniture Proprietary Ltd v Puxu Proprietary Ltd [1982] HCA 44; 149 CLR 191 at 197; and

(f)    the conduct must occur in trade or commerce.

The factual setting

94    In order to outline how the misleading or deceptive conduct claim arises, it is necessary to refer briefly to aspects of the CSG industry, to Steven’s evidence concerning his involvement, and to Steven’s previous involvement in the acquisition of property leading to CCA payments.

95    The extraction of CSG from below ground sources in Queensland is regulated by a number of enactments of the Queensland Parliament. This judgment does not require any detailed explication of these enactments. It is sufficient to say that the Mineral and Energy Resources (Common Provisions) Act 2014 (Qld) regulates the means by which entities wishing to engage in gas extraction may enter into arrangements with landholders for access to their land for the purposes of undertaking the exploration and/or extraction. The entities and landholders are encouraged to enter into agreements, known as Conduct and Compensation Agreements (CCAs), about the provision of access, the conduct of authorised activities on the land, and the payment of compensation. The compensation payments, to which the parties referred as “CCA Payments” or as “Disturbance Payments”, may comprise an upfront payment and/or periodic payments.

96    After first meeting in September 2014, Dr Hamilton and Steven had further meetings. These included at a lunch at a Chinese restaurant, a lunch at an Indian restaurant on 30 November 2014, a golf trip to Tasmania in December 2014, and lunch at the Old Lion Hotel. Steven told Dr Hamilton that he had previously worked for QGC and that, as a result, he had contacts with QGC who gave him access to information about the location and timing of pending CSG activity and that he was well known and respected by gas companies in Queensland. Steven also told Dr Hamilton of his success in identifying and negotiating the purchase of properties which were prospective for CSG activity and in negotiating Disturbance Payments. I accept Dr Hamilton’s evidence about these matters.

97    Dr Hamilton and Steven commenced discussing the formation of a business, the essential elements of which would involve the establishment of a jointly owned company to acquire pastoral land on which it was anticipated that CSG extraction would be undertaken, with a view to obtaining the CCA Payments and the increase in capital value of the land which it was thought the payments would generate.

98    Steven’s explanation of how he had acquired experience of CCA Payments in his employment by QGC Pty Limited was one of the matters in which his carelessness (if not dishonesty) with the truth, even when making statements on oath, was apparent. In the affidavit containing his evidence in chief, Steven said:

[17]    Between 2010 and 2011, I worked for QGC. My role at QGC was in the negotiation of acquisitions and land access in the Surat Basin in central Queensland, for QGC's coal seam gas operations. During this time, I was based in Chinchilla on a fly in fly out basis. My salary package for this work was worth around $200,000 per annum, and QGC also covered my living expenses while in Chinchilla.

[18]    During my time working at QGC, I learned about the coal seam gas industry and the potential income streams that could be realised by landowners when a gas company wanted to explore for gas or extract gas from the land …

…

[26]    While working for QGC, part of my role was to negotiate access for QGC to conduct exploration for coal seam gas, or to establish coal seam gas wells. I therefore became aware that gas companies would pay significant disturbance payments to land-owners for access to their land for the purpose of exploration for coal seal (sic) gas and subsequent production. The payments are made pursuant to agreements called "Conduct and Compensation Agreements" (CCAs) between a landowner and the gas company.

…

[29]    In about early to mid 2011, I identified a property for sale at 3101, Chinchilla-Tara Road, Crossroads, Queensland (Fairfield Property) as a prospective property for coal seam gas exploration or production.

…

[32]    The terms of my employment with QGC prohibited me from buying property in the gas fields while I was working for QGC. I therefore resigned from QGC in late 2011 to pursue the purchase of the Fairfield Property.

(Emphasis in the original)

99    However, in cross-examination, Steven accepted that, contrary to his claims in these passages, he had not been employed by QGC at all but by a sub-contractor to QGC; he had been employed by the contractor for only three months and that was in 2011; he had not actually negotiated access for QGC to conduct exploration for CSG or to establish gas wells; he had not been prohibited from buying property in the gas fields while working for QGC; and he had not resigned his employment to pursue the purchase of the Fairfield Property. He agreed that he had resigned from his employment with the contractor because “[he] had been accused of something and [he] signed some non-disclosure stuff” and because he had sought to avoid his employment being terminated by the contractor. This was another instance of Steven’s willingness to mislead, even when deposing to a matter on his oath.

100    Steven’s attempts to explain these inconsistencies and contradictions did him no credit. He said that he had been “rushed putting the affidavit together”, said that he had not appreciated “how exact this needed to be” and at one stage raised (but then withdrew) the suggestion that he may not have read the affidavit before signing it. He also said that he may not have fully appreciated or understood what he had said in his affidavit.

101    However, I accept that, while employed by the contractor to QGC, Steven had acquired some knowledge of the CSG industry and of the potential for payments to landholders when an energy company such as QGC wished to explore for, or extract, CSG. In particular, he had learnt that the acquisition of a property with a view to obtaining those payments could be lucrative if the existing owner was unaware of the property’s potential for CSG extraction or unaware of the size of the Disturbance Payments which could be negotiated.

102    In 2011, Steven had learnt that a property which was very prospective for CSG exploration and production was for sale. This was the pastoral property at Lot 21, Chinchilla-Tara Road, Wieambilla, Queensland known as “Fairfield” (the Fairfield Property). There was some inconsistency in Steven’s evidence as to when he had first learnt that the Fairfield Property was for sale, but it is not necessary for present purposes to resolve that issue.

103    Steven and Mr Bernays agreed to purchase the Fairfield Property for the purpose of obtaining the anticipated CCA Payments. Mr Bernays was then a neighbour of Steven and Steven had enlisted his assistance. They formed a company, Vannays Pastoral Pty Ltd (Vannays), to make the acquisition. Steven was its sole director but he and Mr Bernays held 10 shares each. On 2 May 2012, Vannays executed a contract to purchase the Fairfield Property for a price of $425,000 with a deposit of only $1,000.

104    However, later in 2012 and before settlement, Steven instigated changes to the structure of Vannays, to which Mr Bernays agreed: Steven resigned as director and secretary and transferred his shares in Vannays to a Mr Craig Dooley (a friend of Steven’s); Mr Bernays was appointed director and secretary and Mr Dooley was appointed a director. These changes occurred on 12 September 2012.

105    About the same time, Steven proposed, and Mr Bernays agreed, that a new company, Fairfield Pastoral Pty Ltd (Original Fairfield) be formed to purchase the Fairfield Property. This occurred on 25 September 2012. Mr Bernays and Mr Dooley were the shareholders and directors of Original Fairfield. Subsequently, on 9 October 2012 and at Steven’s instigation, the vendors of the Fairfield Property and Vannays executed a release of Vannays’ obligations under the 2 May contract on condition that Original Fairfield enter into a contract on the same terms. By a deed dated 2 October 2012, Original Fairfield, Mr Dooley and Pelway Pty Ltd (a company of which Mr Bernays was the director) agreed that Original Fairfield would hold property on trust (the QPU Trust) in accordance with the terms of the Trust deed. There were two units in the QPU Trust: one issued to Pelway as trustee for the Nestor Superannuation Fund (associated with Mr Bernays) and one issued to Mr Dooley, as trustee of the KEC EDU Trust. Steven deposed that the KEC EDU Trust was established to provide for the education of his three daughters.

106    Steven explained that the relinquishment of the Vannays contract had occurred in the circumstance that the vendors had to complete a subdivision of portion of the Fairfield Property, leading (he said) to a “renegotiation” and a “wait period”, and because he and Mr Bernays proposed using Vannays “to do a block of units”. While it is apparent that settlement on the Fairfield Property had to await the completion of a subdivision, there is no evidence supporting Steven’s claim that Vannays was being used for a project involving the development of units. There is also no evidence indicating why it would not have been simpler to establish a new company for the unit’s project. I also note that neither Steven’s Statement of Affairs provided in relation to his bankruptcy nor Mr Leroy’s report to Steven’s creditors contains any suggestion of Vannays having engaged in any profitable activity. Nor do the affidavits of Mr Bernays.

107    I consider that the more obvious rationale for the substitution of Original Fairfield for Vannays as the purchaser of the Fairfield Property was an endeavour by Steven to distance himself from involvement in the acquisition of Original Fairfield. Steven sought to achieve that because of the significant financial difficulties he was then experiencing and desire to avoid his interest in Original Fairfield becoming available to his creditors. The existence of those difficulties can be inferred from the fact that the creditors of Steven or of entities associated with him had commenced proceedings in the Supreme Court of Queensland to recover debts or secured property from him, as follows:

    Action 8078/2010 by ANZ Banking Group Ltd;

    Action 6833/2011 by Intercredit Securities Pty Ltd; and

    Action 1882/2012 by ANZ Banking Group Ltd.

108    I am satisfied that Steven’s evidence concerning the reasons for the change in the purchaser to the Fairfield Property was untruthful.

109    I mention that further proceedings were commented in the Supreme Court of Queensland by the Commonwealth Bank of Australia against Steven and others in 2014 (Action 3496/2014) but that was after the acquisition of the Fairfield Property.

110    Original Fairfield, as trustee of the QPU Trust, settled on the purchase of the Fairfield Property on 24 October 2012. Mr Bernays provided all of the funds for the purchase, and secured those by a mortgage over the Fairfield Property.

111    In about September 2013, following negotiation by Steven with Origin Energy, Original Fairfield received a Disturbance Payment of $600,000 in respect of the Fairfield Property. Later, Original Fairfield sold 441 hectares of the Fairfield Property to Origin Energy for $900,000, retaining 126 hectares. Steven had difficulty in explaining why Origin Energy had wished to buy a portion of the Fairfield Property after paying the large Disturbance Payment. In addition, Original Fairfield received other monies from Origin Energy in respect of work undertaken on the Fairfield Property. Accordingly, Steven regarded the acquisition of the Fairfield Property as having been a particularly profitable investment, given that the original outlay of $425,000 had resulted in payments to Original Fairfield of $1.5 m and even then it continued to hold a portion of the Property. It was especially profitable for Steven as he had not had to contribute any of the purchase moneys. He said that he applied his share of the payments received from Origin Energy to the acquisition of Lot 1. Given the stated purpose of the KEC EDU Trust, it is not apparent how that could have been done.

112    I mention that Steven lived on the Fairfield Property for periods in 2012 and 2013 and it is probable that during that period he also acquired some knowledge about properties for which CCA payments could be made.

113    In mid-2014, Steven had identified a further property for sale in the same general area as the Fairfield Property, namely, Lot 17 Wieambilla Road, Wieambilla Road (Millbrook). He considered that Millbrook was also prospective for CSG development. Original Fairfield entered into a contract (negotiated by Steven) to purchase Millbrook in October 2014 for a purchase price of $157,000 with settlement occurring on 22 December 2014. Again, Mr Bernays contributed the whole of the purchase moneys. Millbrook was a successful investment as in due course it had several gas wells constructed on it, and generated significant Disturbance Payments.

114    Shortly after meeting Dr Hamilton, Steven told him of his activities in relation to the Fairfield Property and Millbrook and of the potential for large profits. Dr Hamilton seems to have been bedazzled by the prospect of making easy money. He and Steven discussed means by which they could jointly pursue that prospect.

The applicants’ pleaded case

115    The applicants’ misleading or deceptive conduct claim is not well pleaded. The principal elements of the claim commence in [8] in the Fifth Statement of Claim (5SC), which concerns the commencement of negotiations:

[8]    In or about September 2014, Hamilton began negotiations with Ridge Estate, Steven and Philip in respect of a business under which:

8.1    companies would be registered for the purpose of acquiring pastoral land which would:

8.1.1    secure income streams from:

(a)    the grant of leases/licences over the pastoral land; and

(b)    disturbance payments; and

8.1.2    experience significant capital growth as a result of conduct and compensation agreements granted with respect to the Disturbance Payments,

being a business similar in nature to that engaged in by Original Fairfield in purchasing the Fairfield Property;

8.2    an agreement would made between the companies, Ridge Estate and Steven (the Proposed Consultancy Agreement) by which:

8.2.1    Steven would be appointed to act as a consultant in the position of ‘Mergers & Acquisitions manager’ of the companies;

8.2.2    in his position as consultant, Steven would identify, source and negotiate with owners of suitable pastoral land for the purchase or lease of that land by the corporation for the above described purposes; and

8.2.3    the corporation would pay a consultancy fee to Ridge Estate of $15,000 per month, exclusive of GST (the Consultancy Agreement).

(Emphasis in the original)

116    I mention now that, although this pleading asserts that Philip was involved in the negotiations which commenced in September 2014, there is no evidence that that was so. The negotiations were instead wholly between Dr Hamilton and Steven.

117    Then, in [9D] of the 5SC, the applicants allege representations by Steven with respect to the inclusion of the Fairfield Property and the Millbrook Property in the arrangements under the PCA:

[9D]    At or about shortly after this time, during the course of the negotiations pleaded in paragraph 8 above, Steven made representations to Hamilton to the effect that, as part of the arrangement underlying the [PCA], he would cause or arrange for the true ownership of the whole or part of the Fairfield Property and the Millbrook Property to be transferred to the new companies to be formed for [the] purpose of the [PCA] in return for the issue of shares to Steven in those new companies, such transfer to be achieved by either:

9D.1    causing or arranging for the units in the QPU Trust to be transferred to the new companies; or

9D.2    causing or arranging for the title in the Fairfield Property and the Millbrook Property to be transferred to the new companies,

either being a 50% interest in the units and the properties or, in the event that the new companies were able to borrow or supply sufficient funds, the whole interest after purchasing that interest controlled by Bernays from him.

118    Although it is not clear, the term “this time” in [9D] appears to be a reference to the period October-December 2014.

119    The applicants then plead:

[9I]    In or about January 2015, Hamilton and Steven agreed that, in consideration of Steven causing Original Fairfield to act in accordance with his representations pleaded in paragraph 9D above, Hamilton and Steven would each hold 50% of the issued shares in the new company formed for the purpose of the arrangement underlying the [PCA].

120    There follow pleadings concerning the registration of FPH, its acquisition of FPH No 1 as a subsidiary, and the issue of one share in FPH to each of Dr Hamilton and Steven.

121    The applicants then plead that a PCA was not concluded; that Dr Hamilton and the applicants believed and intended nevertheless that a contract in the nature of the PCA was in existence as a binding agreement; that Steven, and through him Ridge Estate, knew of that belief and intention; that Steven and Ridge Estate did not intend to perform any duties under the PCA or a contract of its kind and nature; and that Steven and Ridge Estate had only purported to perform but had not in fact performed, the duties and obligations of the type contemplated by the PCA.

122    Accordingly, the applicants’ claim is that Steven, and through him Ridge Estate, engaged in misleading or deceptive conduct by, first, falsely representing in the initial discussions with Dr Hamilton, that he intended to perform the PCA when, in fact, he did not have that intention and, secondly, falsely representing that, from early 2015 until late 2018, he was actually performing his role under the PCA when, in fact, was not doing so and did not intend to do so.

123    In the closing submissions, counsel for the applicants contended that Steven had also engaged in misleading or deceptive conduct by falsely representing to Dr Hamilton, both in the initial discussions and throughout 2015 to 2018, that he had “specialist expertise” in identifying land for CSG deposits and imminent wells when, in fact, that was false and Steven knew it to be false. As I indicated to counsel in the closing submissions, I do not regard that as part of the applicants’ pleaded case and, accordingly, not now open to the applicants.

124    I mention that counsel for the applicants also advanced in the closing submissions a freestanding claim of misleading or deceptive conduct based on Steven’s concealment of his bankruptcy. However, after the Court raised whether such a contention was available to the applicants having regard to the terms of their pleading and the terms of their opening submissions, counsel accepted that this claim was not available. He submitted nevertheless that Steven’s concealment of his bankruptcy was part of the factual matrix in which the allegations of misleading or deceptive conduct summarised above are to be considered.

125    The rather absolutist nature of the applicants’ case is to be noted. It is not a claim that, while Steven had initially intended to perform his obligations but had resiled from that intention over time. Nor, as counsel for the respondents emphasised, is it a claim that Steven misrepresented that he would meet some standard of performance when carrying out tasks under the PCA. The applicants’ claim is a bold claim that Steven, and through him Ridge Estate, had never intended, right from the outset of the relationship, to perform the functions expected of him under the PCA and that that had been the position thereafter until the relationship terminated on 2 October 2018. This means that the Court is required to consider Steven’s conduct in relation to the PCA only insofar as it is relevant to the applicants’ claim that it could not be regarded as performance of the PCA at all, and therefore as evidence of the misleading or deceptive conduct alleged.

126    It is also to be noted that the applicants do not bring any claim of breach of the oral arrangement underpinning the PCA.

The pleaded representations

127    The particular representations pleaded by the applicants in support of the misleading or deceptive conduct claim are these:

(a)    the representation that, as part of the arrangement underlying the PCA, Steven would cause either the whole of the ownership of the Fairfield and Millbrook properties to be transferred to the new companies, or at least his interest in those properties, in the context of the agreement that, in return for the transfer of his interest, he would be issued shares in the new companies and, in respect of the interest of Mr Bernays, that the companies would purchase that interest from him (the Property Transfer Representation);

(b)    the representations of Steven and Ridge Estate that Steven was identifying, sourcing and negotiating with, owners of suitable pastoral land for the purchase or lease by FPH:

(i)    in February 2015, by causing draft contracts for the purchase of four properties by the applicants to be sent to them, being:

•  Lot 68, Corner of Kerwicks Road and Warrego Highway, Columboola, Queensland;

•  Lot 19, Weranga North Road, Kogan, Queensland;

•  20 Weranga North Road, Kogan, Queensland; and

•  2572 Weranga North Road, Kogan, Queensland;

      (collectively, “the February Properties” and “the February Properties Representation”)

(ii)    in or about June 2015 by telling the applicants that he had sourced suitable properties at Lots 1 and 2, 1479 Beelbee Road, Kogan, Queensland (the Beelbee Road Properties). These properties already had some CSG wells on them which were the subject of CCAs;

(iii)    in or about November 2015 by sending to the applicants revised draft contracts for the purchase by the applicants of the Beelbee Road Properties;

(iv)    between 5 and 8 December 2016, by causing contracts for the purchase of four contracts to be sent to the applicants, being:

•  3708 Chinchilla-Tara Road, Chinchilla, Queensland;

•  Lot 4, Chinchilla-Tara Road, Wiemambila, Queensland;

•  Lot 4, Millbank Boundary Road, Tara, Queensland; and

•  295 Church Road, Kogan, Queensland;

      (collectively, “the December Properties”);

(v)    in or about June 2017, by causing a draft contract for the purchase of Lot 43, South and West Valley Road, Kogan, Queensland (the SW Valley Road Property) to be sent to the applicants;

(c)    the representation implicit in the sending of the contracts referred to in subpara (b) above, that Steven:

(i)    had a reasonable basis to believe that the properties had CSG deposits or could have CSG wells installed on them; and

(ii)    was performing his duties and obligations under the PCA;

(d)    the representation implicit in Steven’s conduct in November 2015 in sending to them the revised contracts concerning the Beelbee Road Properties that he had a reasonable basis to believe that further CSG wells could be installed on the properties and that he was performing his duties and obligations under the PCA;

(e)    the representations on numerous occasions during the course of 2015 that he would cause Original Fairfield to act in accordance with the representation summarised in subpara (a) above;

(f)    the representations on numerous occasions after Original Fairfield’s acquisition of Ridgebrook on 15 December 2015 that he would cause Original Fairfield to act in accordance with the representation set out in subpara (a) but now in respect of the Fairfield Property, Millbrook and Ridgebrook; and

(g)    the representations by Steven’s conduct during the whole of the period between February 2015 and October 2018 in sending numerous emails and text messages to Dr Hamilton containing statements to the effect, or from which it could otherwise be inferred, that Steven was identifying, sourcing, and negotiating with, owners of suitable pastoral land for the purpose of lease of that land by FPH.

128    I mention that the applicants adduced evidence of Steven having sent, or caused to be sent, to Dr Hamilton contracts for his execution for the purchase of other properties. These included 2193 Warra Kogan Road, Mary River Station in the Northern Territory. However, Steven’s conduct in relation to these properties and contracts did not form part of the pleaded representations.

The pleaded case of falsity

129    The applicants plead that, in relation to the February Properties, Steven:

(a)    had not taken any steps to identify whether the properties did in fact have CSG deposits or could have CSG wells installed on them;

(b)    did not know and did not have any reasonable basis to believe that the properties had CSG deposits or could have CSG wells installed on them;

(c)    had not negotiated with the vendors of the properties but had simply selected the properties from a list provided to him by the selling agent; and

(d)    did not explain in any communication to the applicants the basis upon which he considered the properties to be suitable for the purposes of the arrangements underlying the PCA.

130    In relation to the Beelbee Road Properties, the applicants plead that, in November 2015 when Steven caused the revised contracts for those Properties to be sent to the applicants, he had not taken any steps to identify whether further wells could be placed on the Properties and did not know and did not have any reasonable basis on which to believe that that was the case.

131    In relation to the December Properties and the SW Valley Road Property, the applicants allege that Steven had not at the time of sending those contracts:

(a)    taken any steps to identify whether the properties did have CSG deposits or whether they could have CSG wells installed on them;

(b)    did not know and did not have any reasonable basis to believe that the properties had CSG deposits or that CSG wells could be installed on them; and

(c)    did not explain in any communication to them the basis upon which he considered the properties to be suitable for purchase.

The pleading of reliance and loss

132    The applicants plead that, in reliance on the conduct of Steven and through him Ridge Estate, and induced thereby they agreed upon the arrangement underpinning the PCA and paid consultancy fees to Ridge Estate totalling $420,684.40 before terminating the arrangement on 2 October 2018. They also plead that, at the request of Steven and in order that he and Ridge Estate could perform their duties under the PCA, they acquired a number of motor vehicles for his use. These comprised:

(a)    2014 Land Rover Defender Wagon, Queensland registration plate ‘OURCAB’;

(b)    2015 Land Rover Defender-130, South Australian registration plate ‘DD910E’ VIN SALLDHMR7GA487454;

(c)    2016 Land Rover Defender-90, South Australian registration plate ‘DD911E’;

(d)    Porsche Macan S diesel, Queensland registration plate ‘846XIG’; and

(e)    Porsche 718 Cayman S, Queensland registration plate ‘845XIG’.

133    In addition to these vehicles, the applicants also provided another Land Rover Defender of which Steven used. That Land Rover was sold shortly before 20 October 2018. Steven also acknowledged that each of these vehicles had been provided to him (although he described the second as a 2015 Land Rover Defender-110); that one of the Porsches had been used by his wife; that one of the Porsches had been used by himself; and said that the Land Rover Defenders had been “splattered across different rural sectors that [they] were either exploring or working in”. He said that at different times the Land Rovers had been located at Dubbo, West Wyalong, Narrabari, Goondiwindi, Taroom, Darwin, Cairns, Townsville, Mackay, The Banana Shire, Roma, Newcastle, Gunnedah, and Wagga Wagga.

134    The applicants plead that they incurred the expenses associated with the loans used in purchasing the vehicles as well as the insurance, registration, servicing and maintenance costs. They did not pursue this claim at the trial.

135    The applicants also plead that they reimbursed expenses incurred by Steven in relation to his claimed performance of the PCA and claim $153,079.12 in respect of amounts debited to the Debit Card which they provided to Steven, a further $53,699 in respect of expenses reimbursed to him, an amount of $47,394.60 in respect of the reimbursement to Steven of fuel costs incurred by him, an amount of $21,872.47 for the reimbursement of travel expenses which he incurred, an amount of $12,073.28 in the reimbursement of entertainment expenses, an amount of $10,912.83 by way of reimbursement of internet and phone bills, and an amount of $5,090.59 for his use of a Caltex Fuel Card.

Were the representations made?

136    It is convenient to consider first whether Steven did make the representations pleaded by the applicants.

Dr Hamilton’s evidence concerning the representations

137    Dr Hamilton’s evidence in chief was contained in two affidavits. The first was made on 19 May 2021 and was, in effect, a consolidation of several affidavits previously made by Dr Hamilton which he had put forward as his evidence in chief. On 30 August 2021, Dr Hamilton re-swore his affidavit of 19 May 2021 but this time including references to the documents in the Tender Book prepared by the parties for the purposes of the trial. This explains why the affidavit bears a date post-dating the affidavit which Dr Hamilton made on 2 August 2021 in reply to the affidavit containing the evidence in chief of Steven.

138    A curious feature of Dr Hamilton’s 30 August 2021 affidavit is that he gave only a limited account of matters concerning the PCA, the representations said to have been made by Steven and about the matters on which he had relied in entering into the arrangement of the PCA. In fact, in the final submissions, counsel for the applicants said that “the key representations” said to have been made by Steven on which the applicants relied were contained in [17], [27] and [41] of Dr Hamilton’s reply affidavit.

139    In his first affidavit, Dr Hamilton deposed:

[4]    At about that time, Steven told me that he was a property developer and had developed a significant portfolio leading up to the global financial crisis but that as a result of the crisis he was forced to sell off his property portfolio.

[5]    Steven told me about the Fairfield Pastoral Model and the significant income streams and capital growth that could be achieved if you identified and sourced suitable pastoral properties.

…

[10]    As a result of my discussions with Steven, Fairfield was formed and Fairfield No.1 was acquired.

[11]    I, on behalf of Fairfield, had a number of telephone calls and exchanged emails with Steven as to the proposed terms of an agreement described as the Consultancy Agreement ('the Proposed Consultancy Agreement').

[12]    The Outline of this agreement was that:

12.1    Steven would be appointed to act as a consultant in the position of Mergers and Acquisitions manager of Fairfield;

12.2    Fairfield would pay a consultancy fee from 1 March 2015 of $15,000 per month, exclusive of GST ('the Consultancy Fee');

12.3    Steven was to identify and source suitable pastoral properties for the Fairfield Pastoral Model for purchase and lease.

[13]    A draft Consultancy Agreement was provided to Steven on at least four occasions.

…

[16]    Fairfield in good faith did the following things in accordance with the agreement:

16.1    On 1 March 2015, commenced payments of the Consultancy Fee to Ridge Estate and did so every month until 26 September 2018 for a total sum of $709,500; and

16.2    From the period from March 2015 to October 2018 made cash advances in the form of loans to Ridge Estate ('the RE Loan'), with the balance of the loan as at 2 November 2018 being $28,533.83.

[17]    Despite the negotiations and payments, Steven did not identify and source any suitable pastoral properties for Fairfield Pastoral Model for purchase or lease.

…

[19]    During the period 2015 to 2018, Steven made a number of promises and statements that he was fulfilling the duties that would have been required of him under the [PCA]. None of those promises or statements came to fruition.

…

[22]    Fairfield was registered to undertake a business trading as “Fairfield Pastoral” which was to identify and acquire suitable regional primary productions properties which would:

 22.1    Secure income streams from:

22.1.1    The grant of leases or licences over the pastoral land; and also

22.1.2    Disturbance payments for coal seam gas well placements on the pastoral land (“the Disturbance Payments”); and

22.2    Experience significant capital growth as a result of conduct and compensation agreements granted with respect to the Disturbance Payments.

(“the Fairfield Pastoral Model”).

…

[23]    During our initial discussions upon first meeting, Steven informed me that he had previously identified, sourced funding for and secured the purchase of land and Disturbance payments for a company, Fairfield Pastoral Pty Ltd ('Original Fairfield'), under the Fairfield Pastoral Model.

(Emphasis in the original)

140    Dr Hamilton did not otherwise identify the representations on which the applicants rely or the terms of the PCA.

Steven’s affidavit evidence concerning the PCA arrangement

141    Steven’s evidence in chief about the arrangement underpinning the PCA was also relatively brief. He deposed:

[68]    By late January 2015, Andrew and I had agreed in our discussions that:

68.1    we would undertake a business together in which I would identify suitable properties to purchase; Andrew would obtain funds so that we could settle on the purchases, and then I would deal with the coal seam gas industry companies in Queensland to develop the properties;

86.2    to undertake the business, we would incorporate a company in which we would each hold 50% of the shares;

86.3    the company would pay $15,000 per month, being $500 per day, to cover my costs - that I anticipated would be incurred. Given the enormous amount of time that I envisaged spending on the business, the company would also pay me an amount of $15,000 per month; and

86.4    Andrew would be the director of the company. I said to Andrew that, as he was a doctor and had the capacity to raise and borrow funds, and I was of no use not being a doctor and having done a section 73, he would need to be the director of the company. He agreed with this.

Dr Hamilton’s reply evidence

142    In his reply affidavit of 2 August 2021, Dr Hamilton disputed the role of Steven as described in [68.1] of Steven’s affidavit. He deposed:

[27.6]    … Steven and I discussed that his role would include the following:

27.6.1    Identify, assess and provide details of properties that fit the Fairfield Pastoral Model that:

(a)    were or might be available for purchase; and

(b)    were to have coal seam gas wells placed imminently, or in the very near future.

27.6.2    To provide information to support the identification of each property as being suitable for the Fairfield Pastoral Model, such information:

(a)    as necessary to secure investors, or finance (or both) for the purchase of the property, and also the growth of Fairfield in general;

(b)    to include engineers or geologists' maps identifying activities proposed on the property, including, in particular, future well placements. Steven told me in effect that maps of this nature were a sign of wells being imminent or being placed in the very near future;

(c)    to include applications to, or decisions of, relevant statutory authorities, such as environmental approvals with respect to the subject property, and its use for mining or associated activities. Steven told me in effect that gas companies would need to procure such approvals as a precursor to installing wells, and that such approvals were a sign of wells being imminent or being placed in the very near future;

(d)    to include environmental reports regarding flora and fauna located on the land, which would form part of an application of the kind referred to immediately above. Steven told me in effect that gas companies would need to procure such reports in order to gain the required approvals as a precursor to installing wells, and that such reports were a sign of wells being imminent or being placed in the very near future;

(e)    to include communications with reliable sources within the mining industry including contacts then (or formerly) with QGC, and any documents including which showed or indicated future gas well positioning;

(f)    to include an assessment of the likely return from disturbance or other payments including income streams from rural activities for the subject property;

(g)    to enable me to consider the suitability of the land for the Fairfield Pastoral Model and to approve the purchase by Fairfield.

27.6.3    To identify, source and secure investors for Fairfield for the purpose of providing funds for the purchase of properties and also working capital for Fairfield;

  27.6.4    To secure and to assist Fairfield funding the purchase of properties;

27.6.5    To negotiate conduct and compensation agreements for properties purchased by Fairfield;

27.6.6    Transfer his interest in the Original Fairfields’ Queensland properties to Fairfield to provide working capital and income:

27.6.7    He would:

(a)    cease working with Richard Bernays;

(b)    work exclusively for the new entity;

(c)    devote sufficient time to perform his obligations for and role with the new entity,

143    Dr Hamilton also elaborated his account of the terms of the arrangement underpinning the PCA. This included assertions that Steven had informed him, before the registration of FPH on 2 February 2015, that he would arrange for his share in the QPUT Trust to be transferred to FPH on the basis that this would:

(a)    underpin the balance sheet for FPH as a start-up company;

(b)    provide FPH with an income stream by way of Steven’s share of the Disturbance Payments;

(c)    allow FPH, with the income stream, to pay Steven a consulting fee; and

(d)    result in a loan account being recorded from FPH to Steven.

144    In his cross-examination, Steven accepted that he and Dr Hamilton had discussed matters to which Dr Hamilton deposed in [27.6.1], [27.6.4] (but limited to assisting FPH to obtain funds) and [27.6.5]. He also accepted that they had discussed that his role would include the provision of the information to which Dr Hamilton referred in [27.6.2(a)] (but limited to helping with securing investors), (b), (c) (although not in those words), (e), (f) and (g). Steven disagreed that he and Dr Hamilton had discussed that his role would include the provision of the information to which Dr Hamilton deposed in [27.6.2(d)]. In relation [27.6.3], Steven said only that he had agreed to help in the identification, sourcing and securing of investors and that in relation to [27.6.6] (the transfer of Steven’s interest in Original Fairfield), they had discussed this occurring only once Mr Bernays was bought out. In relation to [27.6.7], Steven said that they had discussed him ceasing to work with Mr Bernays only once Mr Bernays was paid out. He said, however, that he was “working exclusively” for FPH.

Did Steven make the Property Transfer Representation?

145    As pleaded, the applicants’ case was that Steven represented that, as part of the arrangements for the PCA, he would cause either the whole of the interest in the Fairfield and Millbrook Properties, or at least the 50% interest which he controlled, to be transferred to FPH (then still to be incorporated) in exchange for the issue of shares in FPH. In effect, the applicants plead that Steven represented that he would transfer his seemingly valuable interest in Original Fairfield or in the properties it owned in exchange for shares in the then valueless FPH.

146    However, in his reply affidavit, Dr Hamilton said that Steven had made the representation in the context of a discussion that, in exchange for the transfer of the interests in the Fairfield and Millbrook Properties, a loan account in Steven’s favour to the value of his interest in the properties, or in Original Fairfield itself, would be created. He said that Steven had estimated that value at approximately $700,000. In his cross-examination, Dr Hamilton was taxed on the absence of any reference in the 5SC to Steven receiving a form of value in exchange for his transfer to FPH of his interest in the Fairfield and Millbrook Properties and Dr Hamilton acknowledged that this was an omission. However, I did not regard this as one of the matters reflecting badly on Dr Hamilton’s credit; he was not responsible for the drafting of the 5SC and he had acknowledged the agreement concerning the establishment of the loan account in his reply affidavit.

147    Although the respondents denied the applicants’ pleading concerning the Property Transfer Representation, I did not understand them ultimately to dispute that a representation of that kind had been made although, as indicated, they contended that it had been made on the basis that Steven would receive recognition in some form for the value of his interest being transferred to FPH.

148    On my assessment, the actual representation made concerning the Property Transfer was imprecise. I think it unlikely that Steven had disclosed to Dr Hamilton at the time details of the vehicle by which the Fairfield and Millbrook Properties were owned, the existence of the QPU Trust, or even that Mr Bernays had financed the entire purchase price. This by itself makes it unlikely that Steven descended into any detail concerning the means by which the represented transfer could be effected. It is more likely that Steven spoke of Mr Bernays and himself as being the owners of Original Fairfield and conveyed that he was in a position to control the disposition of his own interest Original Fairfield.

149    Accordingly, I accept that in general terms Steven did represent that he would cause Original Fairfield to transfer to FPH (then still to be formed), his half interest in the company and, if a suitable arrangement could be made with Mr Bernays, for the transfer of the whole of the interest in Original Fairfield. An indication that there had been discussion between Dr Hamilton and Steven concerning FPH’s acquisition of Mr Bernays’ interest in the Fairfield and Millbrook Properties is that Steven soon after commenced discussions with Mr Bernays to that very end.

Did Steven make the February Properties Representation?

150    I will make findings separately in relation to each of the properties pleaded by the applicants but commence by noting Steven’s acknowledgement that in the “thousands of phone calls” he had had with Dr Hamilton, he said that he had a potential property fitting the Fairfield Pastoral Model.

151    Dr Hamilton travelled to Queensland in January 2015 and, with Steven, looked at properties in the Surat Basin between 13 and 16 January 2015. These were the Fairfield Property (at which they stayed), Millbrook, Lot 68 Kerwicks Road and 2572 Weranga North Road. By the last of these properties, I understood Dr Hamilton to be referring to Lots 19, 20 and 2572 Weranga North Road as they are adjacent to one another and were known collectively as 275 Weranga North Road. I will refer to them in that way. I accept Dr Hamilton’s evidence that this visit occurred in January, and not February 2015, as claimed by Steven. In his cross-examination, Dr Hamilton expressed some reservations as to whether he had in fact been shown Lot 68 Kerwicks Road and the properties on Weranga North Road. Those reservations seemed to arise from his present distrust of Steven, but I see no reason to conclude that Steven had misled him about the identity of the properties he was showing him in January 2015.

152    On 21 January 2015, Steven sent to Dr Hamilton unexecuted contracts for the purchase of Lots 19, 20 and 2572 Weranga North Road, Kogan together with associated documents. The purchaser in each contract was shown as Original Fairfield “as trustee for [QPU Trust]”. The contract prices were $400,000, $430,000 and $200,000 respectively. Steven’s accompanying email did not include any explanatory information.

153    Dr Hamilton deposed that the email of 21 January 2015 was the first time that Steven had told him about, or otherwise identified, the Weranga North Road Properties. I do not accept that evidence. Dr Hamilton had been shown the properties on his visit to the Surat Basin in the preceding week.

154    On 22 January 2015 at 8.05 am, Steven forwarded on to Dr Hamilton three contracts for the same properties but in slightly different form. These contracts appear to have been carelessly drawn as the purchaser in each was identified as “Regional Property Trust of Australia as trustee for Regional Property Trust of Australia” and the property which was the subject of the proposed contracts was in each case Lot 20 Weranga North Road, and Lots 19, 20 and 2572 respectively.

155    Later, on 2 February 2015, the vendor’s real estate agent provided contracts in better form and, on 12 February 2015, Dr Hamilton returned them to Steven executed by himself as director of RPP No 1. Each contract provided for very small deposits and contained flexible finance conditions.

156    On 26 February 2015, the vendor’s real estate agent sent to Steven a contract for the sale of Lot 68 Kerwicks Road. Steven forwarded on the contract to Dr Hamilton on 28 February 2015 without any additional comments. Dr Hamilton signed the contract on behalf of RPP on 28 February 2015 and returned it to Steven.

157    Although Steven did not provide in his emails to Dr Hamilton concerning these properties any information indicating their appropriateness for the “Fairfield Pastoral Model”, I accept that it is likely that Steven and Dr Hamilton discussed these matters via telephone. At least in the early stages of their relationship, Steven and Dr Hamilton seemed to have talked frequently and the inference that they talked about the suitability of the properties which were the subject of the contracts is strong. However, the evidence does not permit findings to be made as to precisely what was said by Steven in respect of the properties.

158    In the absence of any evidence from the respondents to the contrary, I consider it to have been implicit in Steven’s conduct in sending to Dr Hamilton the contracts for the Weranga North Road Properties and Lot 68 Kerwicks Road that he represented that he had a reasonable basis to believe that the properties had CSG deposits or could have CSG wells installed on them and that he was providing the contracts as part of the performance of his duties under the PCA. Why else send the contracts to Dr Hamilton for his signature?

Did Steven make the representations concerning the Beelbee Road Properties in June 2015?

159    The applicants’ submissions did not indicate the evidence on which they relied for the representations said to have been made by Steven in June 2015 that he had “sourced suitable properties”, being Lots 1 and 2, 1479 Beelbee Road, Kogan.

160    Dr Hamilton referred to the Beelbee Road Properties for the first time in his reply affidavit. Having referred to the contracts for the Beelbee Road Properties sent to him by Steven in November 2015, Dr Hamilton deposed:

[51.2]    Steven had previously sent me an email dated 22 June 2015 regarding the Beelbee Property. He tried to draw my attention to the 'dollar amount' paid for a CCA agreement that applied to the property. I suspected at the time he was doing so to help prove the Fairfield Model, however, I recall looking and not being able to find any 'dollar amount' in the email. I recall looking at the map which showed the engineering of wells from 2 August 2012 and remarking to Steven during our meetings that this is precisely the kind of property we should be targeting for Fairfield as the map at the time showed what were future well placements - a clear sign of imminent wells. As at June 2015, I did not give the property any further thought or consider it to be in the Fairfield Model. This is because it already by then had a CCA in place between the existing owner and the gas company. As such, there would be no or insufficient upside for Fairfield.

(Footnote omitted)

161    The email to which Dr Hamilton referred was sent to him by Steven on 22 June 2015 with the subject line “Gas well conditions for Beelbee property”. In the body of the email, Steven said only “can you see dollar amount?”. Steven was asking this question in relation to the copy of an unexecuted CCA between (effectively) QGC and the owners of the Beelbee Road Properties. The provisions in the unexecuted CCA concerning compensation were blank, so that Steven’s question appears to have been genuine.

162    In my view, Dr Hamilton’s evidence that Steven had, by the email, tried to draw his attention to the “dollar amount” paid for CCA and his claim to have suspected at the time that Steven had provided the email “to help prove the Fairfield Model” is a reconstruction of the matters in an attempt to make the facts fit his narrative. However, even if that not be the case, this evidence of Dr Hamilton cannot reasonably be regarded as supporting the applicants’ pleaded claim that Steven had represented to them in June 2015 that he had sourced the Beelbee Road Properties as “suitable properties”. There being no other evidence to that effect, I reject this claim of the applicants.

Did Steven make representations in November 2015 concerning the Beelbee Road Properties?

163    Again, Dr Hamilton’s evidence in chief concerning the communications regarding the Beelbee Road Properties in November 2015 was contained in his reply affidavit. He referred to Steven having caused Stuart Hill from Australian Leasing Partners to assist him in searching for properties. On 26 October 2015, Mr Hill sent to Steven and to Matthew Ladd (a lawyer working as a consultant to FPH at the time) revised contracts for the acquisition of the Beelbee Road Properties. In his accompanying email, Mr Hill said “everything attached is ready for Andrew to sign and return electronically at his earliest convenience … [L]ook forward to discussing other opportunities we’ve been speaking about”.

164    Steven forwarded the contracts and associated documents on to Dr Hamilton on 6 November 2015. His accompanying email said:

House block really small, good for bank funding.

Re negotiate with QGC for more wells.

House rents for $350 per week, good painter/carpenter tenant.

Fin(ance) due end of February.

Settlement end of March.

165    On 16 November 2015, Mr Hill sent updated contracts for the Beelbee Road Properties to Steven, telling him that the contracts needed to be signed “this week”. He added “this has dragged on for a month now and you need to act on this before the seller walks away” and gave instructions as to the manner in which the contract should be signed. Later that same day, Steven forwarded Mr Hill’s email to Dr Hamilton saying “we must move on this asap”. Dr Hamilton responded saying:

What are the implications for going unconditional? Where does the risk fall?

I would like to use Fairfield equity to enable the deal to be financed.

Lets discuss.

166    Shortly afterwards, Dr Hamilton signed contracts for a purchase of the Beelbee Road Properties for $480,000. Settlement was due on or before 25 February 2016.

167    In the circumstances just described, I find that Steven did represent that the Beelbee Road Properties were suitable for acquisition by the applicants as part of the Fairfield Pastoral Model, that he had a reasonable basis to believe the properties could have further CSG wells installed on them and that he was performing his duties and obligations under the PCA.

168    I note in passing that the applicants’ submissions did not explain how Steven’s action in retaining Mr Hill, and their acceptance that he had done so, was consistent with their claim that Steven had not performed the PCA at all.

Did Steven make the representations with respect to the December Properties?

169    Again, Dr Hamilton’s first affidavit made no reference to these pleaded representations, or even to the December Properties. He did not depose to matters concerning these properties until his reply affidavit.

170    On 3 December 2016, Steven forwarded on to Dr Hamilton the email which he had received the same day from the agent for the vendor of 3708 Chinchilla-Tara Road. In his email, Steven stated only “please sign and return”. This property comprised 85.98 hectares and the contract provided for a purchase price of $200,000 and a deposit of $2,000. Dr Hamilton signed and returned the contract on 5 December 2016.

171    On 6 December 2016, Steven forwarded on to Dr Hamilton the contract for the purchase of Lot 4 Millbank Road, Tara without his accompanying email providing Dr Hamilton with any additional information. This contract provided for a purchase price of $200,000 and a deposit of $2,000. The property was 506 hectares.

172    Also on 6 December 2016, Steven forwarded on to Dr Hamilton the email from the real estate agent and the contract for Lot 4 Chinchilla-Tara Road, Wieambilla. This property was 177.4 hectares and the contract provided for a purchase price of $280,000 with a deposit of $2,000.

173    The applicants did not identify the date nor means by which Steven provided Dr Hamilton with the contract for 295 Church Road, Kogan. I am willing to accept, however, that Steven forwarded it to Dr Hamilton by email in December 2016 and that he did so without providing and additional information concerning the property. That contract provided for a purchase price of $270,000 and a deposit of $2,000.

174    Each of the contracts for the December Properties was expressed to be subject to finance in an amount “sufficient to complete the transaction”. Dr Hamilton signed each contract and returned them to Steven. He also arranged for payment of the deposits. Given the arrangement underpinning the PCA, I accept the applicants’ plead that, by sending on the contracts for these properties to Dr Hamilton, Steven represented that he had a reasonable basis to believe that the properties had CSG deposits or could have CSG wells installed on them, and that he was performing his functions under the PCA. Although the respondents denied that that was so in their Amended Defence, they went on to plead that “Steven identified the properties as prospective locations for future [CSG] exploration or production due to their proximity to existing [CSG] infrastructure, his knowledge of the [CSG] industry, and information obtained from gas company employees”. The respondents also pleaded that Steven had explained these matters to Dr Hamilton.

Did Steven make the representations concerning Lot 43, SW Valley Road, Kogan?

175    On 4 July 2017, Steven forwarded on to Dr Hamilton the email from the real estate agent for the vendor of Lot 43, SW Valley Road, Kogan attaching the contract. The only additional information which Steven provided in his covering email was “deposit to be paint (sic) too. Talk soon”. Again, I accept that, in sending the contract for Lot 43, SW Valley Road, Kogan, Steven represented to Dr Hamilton that he had a reasonable basis to believe that the property had CSG deposits.

Did Steven continue in 2015 his representations concerning the Fairfield and Millbrook Properties?

176    The applicants did not identify in their closing submissions the evidence on which they relied in support of this pleaded representation. Dr Hamilton had made no reference to this representation in his first affidavit. However, in his reply affidavit, Dr Hamilton referred to emails which he had received from Steven on this topic. In an email on 22 March 2015, Steven told Dr Hamilton that “[in view] that it will take quite some time to absorb all the other properties into RPP this year”, RPP has taken over looking after all costs from the above companies. This seemed to be a reference to FPH and Ridge Estate, not to Fairfield and Middlebrook. The applicants’ submissions did not indicate how this formed part of the pleaded representation. However, Steven did say in the same email that he would be “meeting with Richard Bernays over the next month”.

177    In an email on 22 June 2015 concerning the funding of FPH’s activities, Steven said “I am putting in a share of Fairfield”.

178    At the meeting 12 months later on 17 June 2016, Steven told his fellow shareholders that he had a verbal agreement with Mr Bernays for FPH to buy the Fairfield, Millbrook and Ridgebrook Properties for $1.25 m and indicated that the value of his share in the Fairfield and Millbrook Properties (excluding Ridgebrook) was $850,000.

179    There were numerous other communications from Steven to Dr Hamilton which confirmed his intention that FPH would become the owner of the Fairfield, Millbrook and, in due course, the Ridgebrook Properties. By way of example, on 20 May 2015, Steven forwarded to Dr Hamilton an email he had received which attached apparent proposed gas well locations on both Millbrook and Ridgebrook and there were numerous exchanges concerning the potential basis and financial arrangements by which that may occur. There were several emails which Dr Hamilton conveyed his expectation that FPH would acquire some or all of the interests in Fairfield, Middlebrook and Ridgebrook, and this was not corrected by Steven.

180    In Steven’s email on 2 March 2016 under the subject line “update from meeting with Richard on Sunday in Brisbane”, Steven said:

Today I put Fairfield Pastoral under contract to sell to Fairfield Pastoral Holdings.

I have also put a working contract over the properties based on money sent over the last year.

We now need to formalise this on paper over the next week to give value to the company with new capital coming in.

181    The minutes of the meeting between Dr Hamilton and Steven on 24 June 2016 included:

2.    Contracts signed for Fairfield, Millbrook and Ridgebrook – nature of agreement is follows.

a.    Total Contracted Price $2.1M – Breakdown.

i.    Richard $1,250,000 – includes agreed price of $950,000 for Fairfield and $300,000 for Ridgebrook.

ii.    $100,000 for Land tax.

iii.    $750,000 provided by SVN as Vendor Finance – to be paid back over number of years depending on cash flow - Mentioned 2 years – (assessment of cash flow and business need will need to undertaken to ascertain repayment schedule. Discussed in subsequent email).

iv.    SVN requested that Lot 2 could be used to retire Vendor Finance - AH agreed that that could be considered.

182    It is not necessary to give further examples. I am satisfied that Steven did, by his prolonged conduct, represent that he would cause Original Fairfield to act to cause the interest of Original Fairfield in the Fairfield Property, Millbrook and Ridgebrook to be transferred to FPH or FPH No 1.

Did Steven make the representations by texts and emails in the period February 2015 to October 2018 concerning his performance of the PCA?

183    The applicants did not identify the particular text messages or emails which they relied upon for these claimed representations. Nevertheless, I did not understand it to be disputed by the respondents that in the multiple emails and text messages exchanged between Steven and Dr Hamilton over the period of approximately three and a half years during which their relationship subsisted that Steven had, in various ways, conveyed that he was performing his functions under the PCA. I accept that these representations have been established.

Were Steven’s representations misleading or deceptive?

184    As aptly described by counsel for the respondents, the applicants’ primary case is an allegation that Steven had engaged in “a long running and elaborate fraud, whereby he pretended to be working to identify properties for acquisition by [FPH], when in fact he was doing no such thing”. The allegation of a serious sustained fraud by Steven makes it appropriate to proceed on the basis that the Court should be satisfied that there is cogent evidence of the fraud before finding it established.

185    In the closing submissions, the applicants referred to five matters as indicating that Steven had not intended at any time to perform the functions expected of him under the PCA and that he had misled Dr Hamilton about his intentions. These were:

(a)    Steven had not had any basis on which to believe that the properties he had caused FPH to contract had any prospect of yielding Disturbance Payments;

(b)    although leading Dr Hamilton to believe that FPH would purchase Ridgebrook, he had diverted that opportunity to Original Fairfield;

(c)    Steven had never fulfilled his repeated promise to transfer his interest in the Original Fairfield properties to FPH and, in truth, Steven had no interest capable of being transferred in any event;

(d)    Steven had refused, without proper explanation, to execute a written consultancy agreement with FPH so as to formalise his duties and obligations to FPH; and

(e)    Steven’s refusal of repeated requests by Dr Hamilton to sell the motor vehicles provided to him, to refinance Lot 2 and to repay the funds he owed to FPH. Instead, he had sought to prolong “the lucrative benefits associated with the consultancy”.

186    As is apparent, each of the matters on which the applicants relied to establish Steven’s state of mind at the commencement of the arrangement are subsequent matters, i.e, relating to the performance, or purported performance, by Steven of his obligations under the PCA. It is by reference to those matters that the applicants seek the Court to draw an inference as to Steven’s intentions and state of mind at the commencement of their relationship and during it. This involves some difficulty for the applicants given that it is well established that a representation as to future conduct does not become misleading or deceptive merely because it is not ultimately fulfilled.

187    The applicants also submitted that Steven had had a motive to keep his arrangement with Dr Hamilton on foot, namely, the benefit he was deriving from the generous consultancy remuneration of $15,000 per month, the provision of multiple motor vehicles, the reimbursement of expenses and, after April 2016, Dr Hamilton’s purchase of Lot 2.

188    It is convenient to address in turn the matters to which the applicants referred. Before doing so, I will refer to two other submissions of the applicants on this topic.

Steven’s expertise

189    The applicants disparaged Steven’s expertise to identify properties with potential for CSG and CCA payments. Related to this was a submission that Steven had not applied any particular methodology in identifying properties which he regarded as suitable. Instead, the applicants submitted that Steven had simply obtained contracts with respect to properties in the general area which happened to come on to the market with a view to giving an appearance that he was performing his functions.

190    I consider that the submission concerning expertise tended to underestimate two matters: a certain intuitive feel for property and an investment opportunity which Steven had developed through his previous property dealings and the experience which Steven had acquired from the steps he had taken to familiarise himself with the areas in the Surat Basin which were suitable for CSG development. This included extensive driving around the area, speaking to the local real estate agents, speaking to local property owners, assessing the topography, the ability to assess the number of CSG wells which could be located on any given property having regard to their own topography and the positioning of CSG wells on neighbouring properties and other matters of a similar kind. I am willing to accept Steven’s evidence about these activities, although I doubt that they occupied him on a full time basis. The applicants’ submission also tended to underestimate the value of the pieces of information which Steven was able to obtain by making use of contacts in QGC and Origin and from tapping into the available knowledge regarding the local area.

The applicants’ submission concerning an implicit admission

191    The applicants sought to rely upon what was said to be an implicit admission in the respondents’ defence that Steven had undertaken significant work in respect of only seven of the 11 properties which were the subject of their pleaded representations. The respondents’ plea in [14(a)] was expressed as follows:

The respondents deny paragraph 14 of the Claim and say that:

(a)    Steven and Ridge Estate undertook significant work and incurred significant cost in performing the Joint Venture Agreement and the Services Agreement, which led to contracts being entered for the purchase of properties by [FPH] located at:

…

(together, the Purchased Properties);

192    The seven properties listed in [14(a)] are the properties which are the subject of the applicants’ representation pleadings but excluding the February 2015 Properties.

193    In submitting that this plea of the respondents involved an implicit admission, the applicants overlooked that the respondents’ plea was directed only to the work of Steven in relation to the properties in respect of which contracts were made. It did not purport to be a pleading of all the work performed by Steven, including in respect of properties for which contracts were not signed. By way of example, as contracts were not made in respect of the February 2015 Properties, they were not included in the respondents’ pleading even though Steven must have performed some work in relation to them. Accordingly, the submission of the applicants that Steven had implicitly admitted performing only limited work cannot be accepted.

Lots 19, 20 and 2572 Weranga North Road and Lot 68 Kerwicks Road

194    In the affidavit containing his evidence in chief, Steven said that he identified the properties at Weranga North Road and Lot 68 Kerwicks Road in visits to the Surat Basin area in late 2014 or early 2015 and had done so by the following means:

(a)    daily monitoring of the sales listings in the Surat Basin area on realestate.com.au and on RP Data; and

(b)    using information provided to him by local real estate agents, gas company employees and members of the local community.

195    Steven said that, having identified a potential property, he would consider its proximity to the areas in which there was “significant coal seam gas activity” and its proximity to infrastructure installed by the gas companies. He said that generally he looked for a property of at least 1,000 acres in area because such a property could be developed for 10-12 gas wells. However, he had also considered properties of between 600-1000 acres. He would inspect the property to look at its topography and existing infrastructure and to assess its potential for other income streams.

196    Steven said that he had applied these criteria in identifying 275 Weranga North Road. He deposed that he had, in early 2015, considered 275 Weranga North Road to be prospective for future CSG development because it was located between two areas of significant CSG exploration (to the northeast and southwest) and because of its potential to be share-farmed to generate additional income.

197    In respect to Lot 68 Kerwicks Road, Steven said that he identified this as a property with the potential for CSG deposits because Origin Energy had several wells already in place in the general vicinity and because there was the potential to lease land to Origin Energy for use as a camp. He did not regard it as different from the other properties in the vicinity. Steven said that he had told Dr Hamilton of both matters.

198    Steven denied in cross-examination that the only information he relied upon in relation to 275 Weranga North Road was their location in the general vicinity of the direction in which the gas companies seemed to be moving; and denied that he had obtained contracts for 275 Weranga North Road and Lot 68 Kerwicks Road simply because these were the first properties to come on the market after he had reached the understanding with Dr Hamilton about a consultancy. Steven agreed that he could not recall talking to any employees of QGC before obtaining the contracts and agreed that he had not obtained any mapping or aerial data in respect of the Weranga North Road Properties or in respect of Lot 68 Kerwicks Road.

199    Later in the cross-examination, Steven claimed that he had in fact seen a map of the Surat Basin showing a “corridor” of potential gas wells from Middlebrook to the Beelbee Road Properties. He said that this map had also depicted future wells on the Weranga North Road Properties. This evidence seemed to emerge only when Steven was under pressure in the cross-examination, and I am not willing to accept it.

200    Steven also said that he had told Dr Hamilton of the potential for CSG development on the properties in “multiple phone calls”. He acknowledged, however, that he had not provided in his emails to Dr Hamilton any information concerning 275 Weranga North Road. Steven said that, in the numerous telephone calls which he had with Dr Hamilton, he had said words to the effect that, relying on his own experience, he had identified a potential property fitting the Fairfield Pastoral Model.

201    When pressed in cross-examination, Steven said that he had brought to bear his experience in real estate, the knowledge he had acquired by speaking to local landowners generally, his knowledge of where in the Surat Basin the gas companies were likely to move next, the matters he had learnt by speaking to the owners of the Weranga North Road and Lot 68 Kerwicks Road Properties, and his observations of the local topography. He acknowledged that he had not heard, before February 2015, any significant local “gossip” about the Weranga North Road Properties.

202    By reference to aerial imaging, counsel for the applicants elicited from Steven in cross-examination that, even now, there were no CSG wells on the Weranga North Road Properties.

The Beelbee Road Properties

203    Steven said that, while the Beelbee Road Properties were already subject to a CCA, he had regarded them as having the potential for further CSG development because of the prospect for further wells. He referred to the CCA agreement applicable to the Beelbee Road Properties as a “deferral agreement” which he described as meaning that negotiation of the final terms of the CCA had been deferred until after the wells had been developed. The deferral agreement allowed for an initial payment but there remained the prospect of annual payments. This seems to be an unusual kind of agreement but the applicants did not adduce any evidence to the contrary.

204    Steven agreed that, in about June 2015, he had represented to Dr Hamilton that he had sourced these properties as suitable for the Fairfield Pastoral Model and that, in about November 2015, he caused revised contracts for their purchase to be sent to Dr Hamilton.

205    The evidence indicates that Steven had, by an email exchange in August 2015, sought to ascertain from two gas companies (or their contractor) their plans for future gas exploration or drilling on the Beelbee Road Properties. He could not say whether his contacts had provided him with any further information. Some of the evidence about these enquiries was inconsistent and confusing but there is documentary evidence of the enquiries having been made.

206    In his evidence, Dr Hamilton said that the existing CCA and the wells already installed on the Beelbee Road Properties meant that there would be very little “upside” for FPH in acquiring the Properties. He said that he had raised this with Steven at the time who had persuaded him that there was an “upside”. He said that Steven had not provided supporting information in documentary form of the kind which might be required to attract investors.

207    Steven acknowledged in cross-examination that he had learnt, while negotiating with the vendor of the Beelbee Road Properties, that the gas flow from the wells on the Properties had slowed. He said that he had conveyed this to Dr Hamilton. I had reservations about accepting this evidence but, noting that ultimately it was Steven who recommended that FPH not proceed with the purchase of the properties, am willing to accept that he did.

208    Dr Hamilton also sought to support his claim in respect of the Beelbee Road Properties by referring to the assessment of a NAB Manager (Mr Bierbaum) whom he had approached for finance that the investment “may not stack up”. However, this seemed to be an attempt to rely on the statement of NAB manager without regard to the context in which it was made. That context is as follows. Settlement on the Beelbee Road Properties was due by 25 February 2016. At 7.08 pm on 24 February 2016, Dr Hamilton sent an email to Mr Bierbaum which included:

We have concerns over our ability to finance this property as the market has shifted significantly lower due to the gas sector.

Can you please take a look and let me know what you think as to NAB’s willingness to finance this.

209    Mr Bierbaum responded on the following day saying (relevantly):

What are you looking to achieve? Do you want to get out [of] these contracts?

If not, they look like standard [RESI] contracts. As an investment they probably don’t stack up anymore so we would need to rely on external income to make the funding work.

The valuation may not stack up if the markets gone cold on this asset type.

Let me know in the first instance if there is external income that we can encumber. If so we can have the properties valued. Then we can discuss the equity contribution amount. Given your comments the contribution may be higher than ‘normal’.

(Emphasis added)

210    Dr Hamilton then responded almost immediately to Mr Bierbaum saying (relevantly):

This property did have a good rental income of $300 per week however the rental market has declined since gas prices have gone down. Also we believe that the property was in our wheel house with regard to gas revenue on the 1,000 acre block back in November however now this looks to be five years out and would be difficult for us to service it off the back of rental income alone.

The cattle income may bring in 100 per week. The property is subject to finance. At this stage we do want to be out of the contract.

I need a denial letter from NAB to retain our deposit of $15,000 if you agree.

211    A number of things can be inferred from this exchange of emails. First, there is the inference that Steven had provided Dr Hamilton with information about the Beelbee Road Properties, including the potential rental income and the potential income from running cattle, which Dr Hamilton passed on to Mr Bierbaum. That is inconsistent with the applicants’ claim that Steven had not provided any information about the properties. Secondly, it is more likely to have been Steven than Dr Hamilton who was monitoring the gas prices and had noticed their decline. Thirdly, Mr Bierbaum had not told Dr Hamilton that the purchase, as presented by Steven, did not “stack up”, only that it did not “stack up” anymore in the light of the changes which had occurred since FPH entered into the contract.

212    Settlement on the Beelbee Road Properties did not proceed because FPH No 1 did not have the funds with which to settle.

The December Properties

213    In early December 2016, Steven sent to Dr Hamilton draft contracts for four properties:

    3708 Chinchilla-Tara Road, Wieambilla for a purchase price of $200,000 (deposit $2,000);

    Lot 4 Chinchilla-Tara Road, Wieambilla for a purchase price of $280,000 (deposit $2,000);

    Lot 4 Millbank Boundary Road, Tara for a purchase price of $200,000 (deposit $2,000); and

    295 Church Road, Kogan.

214    A copy of the draft contract for 295 Church Road, Kogan was not included in the evidence at trial. It seems to be common ground, however, that such a contract had been sent.

215    The evidence at trial did not include any contemporaneous documents recording or evidencing investigations by Steven of these four properties before the contracts were provided. Nor did it include the emails under cover of which the copy contracts had been provided to Dr Hamilton.

216    Each of the contracts was made conditional upon the obtaining of satisfactory finance with the finance to be arranged by the end of February 2017. The copies of the contracts in evidence were not shown as executed by either Steven or Dr Hamilton on behalf of FPH. It seemed, however, to be common ground that Dr Hamilton had signed the contracts and returned them to Steven.

217    Despite obtaining extensions for the settlement, FPH never had the funds with which to settle on any one of these properties and, ultimately, the vendors terminated the contracts.

218    The applicants claim that Steven’s provision of the contracts for these four properties was only a purported performance of his functions under the PCA, and that Steven had not had any basis to believe that they had a prospect of yielding Disturbance Payments, rested on the following elements. In relation to Lot 3708 Chinchilla-Tara Road:

    the property was subject to an existing CCA recorded as an easement over the title but Steven had not drawn Dr Hamilton’s attention to that easement, and had not given him any description of the existing CCA and its details (including its assignability);

    Steven had not otherwise provided supporting information;

    even now there are no CSG wells on the property; and

    the map upon which Steven said he relied (Exhibit A49) did not show CSG wells on or near Lot 3708.

219    In the cross-examination, Steven pointed to the well on the property only a little to the north of Lot 3708 and a well which was seemingly adjacent to the southern boundary of Lot 3708. He made the point that if the CCA had been negotiated with Lot 3708 before its neighbours, the wells could have been located on the Lot’s boundaries (keeping them 750 m apart as required) without being compressed by the wells on the neighbours’ properties.

220    In relation to Lot 4 Chinchilla-Tara Road, the applicants relied on the following matters:

    Steven had not provided any supporting information;

    Steven did not have a reasonable basis for believing that CSG wells would be installed imminently, evidenced, it was said, by the fact that even now there are no CSG wells on the property;

    seemingly inconsistent with the previous point, an “easement CCA” already applied to the property; and

    Steven had raised for the first time in his cross-examination that he had relied on a map as indicating that Lot 4 Chinchilla-Tara Road was prospective for CSG.

221    One of these points can be addressed immediately. While the contract signed by Dr Hamilton did show that Origin Energy had an easement over the property, it did not indicate that that related to a CCA. Moreover, being included in the contract, it was also apparent to Dr Hamilton, but there is no evidence that he took any particular step by reason of the inclusion of that endorsement.

222    With respect to Lot 4 Millbank Boundary Road, Kogan and 295 Church Road, Kogan, the applicants relied on the following matters:

    although Steven asserted in his affidavit that these properties were surrounded by CSG wells in the “central” area of the Surat Basin, were cheap, could likely be developed with 10-12 wells and there was the prospect of creating a very large landholding by the acquisition of adjacent properties, Steven had not provided any relevant supporting information regarding the properties at the time he caused the contracts to be provided to Dr Hamilton;

    there was no reasonable basis for Steven to believe that CSG wells would be installed imminently and, indeed, at the time of trial there were still no CSG wells on the properties; and

    Steven’s evidence concerning his sighting of maps concerning CSG development in relation to these properties had been inconsistent and in fact had emerged for the first time only during the trial.

223    In relation to 295 Church Road, Kogan, the applicants relied on much the same matters but in addition, on Steven’s admission in evidence that he had not seen mapping for that property and his inconsistent evidence about the presence of a CSG well in close proximity to the northern boundary of the property.

224    One matter which can be addressed immediately in relation to 295 Church Road is that the property adjacent to it to the north had eight CSG wells and two sites marked for future wells.

Lot 43 SW Valley Road, Kogan

225    On 12 July 2017, Steven sent to Dr Hamilton a draft contract for the purchase of Lot 43 SW Valley Road, Kogan. Steven described the property as a substantial block of tree covered land located in an area with significant CSG development.

226    The applicants submitted that Steven had only purported to perform the functions of the PCA in relation to this property because:

    he had not provided any relevant supporting information regarding the property;

    Steven had no reasonable basis on which to believe that CSG wells could be installed imminently and, again, even now there are no CSG wells on the property; and

    Steven’s evidence about seeing a “corridor map” from which he had inferred the likely future development of CSG wells had been false, being mentioned for the first time only in his oral evidence in the trial.

General matters

227    The applicants pointed to the evidence of Mr King that Steven had never responded to the information concerning Environmental Authority approvals which he had provided in at least August and October 2015. Mr King deposed, and I accept, that the Environmental Authority information which he had provided was sufficient by itself to determine whether a property or locality had the potential for a CSG producing classification. Despite the provision of the information, and its obvious utility, Steven had never said anything to Mr King to suggest that he had “read, considered or acted upon the information” with which he had been provided. I accept that evidence.

Evaluation

228    On my assessment, much of Steven’s evidence concerning the basis upon which he had caused particular contracts to be sent to Dr Hamilton for signature was unsatisfactory. At different times it seemed to reflect bluster, imprecision, vagueness, attempts to divert the cross-examiner and confection to meet the perceived needs of the case. However, in fairness to Steven, there were times when he did answer questions directly and appropriately. I also thought that part of the difficulty which Steven had in showing that his actions in causing the contracts to be sent to Dr Hamilton had been genuine was a consequence of his reliance on non-objectively verifiable material regarding properties. Instead, he had relied on snippets of information he had gleaned informally, his intuition and his confidence in his own ability to identify “a good real estate deal”.

229    Although there are a number of aspects of Steven’s evidence which give rise to misgivings, it is also the case that there are several matters which belie Dr Hamilton’s claim that Steven was only purporting to discharge his functions under the PCA.

230    First, Dr Hamilton’s claim that Steven had not provided information about any of the properties for which he provided contracts was obviously based very much on the documentary records from which Dr Hamilton has constructed his narrative. This meant that the information which Steven had conveyed orally was ignored by Dr Hamilton. I consider that Steven’s claim that he had multiple telephone conversations with Dr Hamilton with respect to each property was plausible. It is improbable that Steven provided, or that Dr Hamilton was prepared to accept, contracts for properties provided “out of the blue”, without there having been some preceding discussions. I think it probable that Steven did convey to Dr Hamilton his reasons for proposing the purchase of the properties for which he provided contracts although, as indicated, Steven’s view that the properties were worth acquiring may have been based on not much more than his intuition, feel for the market, scraps of information, or inferences which he had drawn.

231    It is implausible that Steven had not discussed with Dr Hamilton during their visits to the properties the reasons why the Weranga North Road Properties and Lot 68 Kerwicks Road were prospective for CSG. It is also implausible that there had not been discussion about the properties in their subsequent telephone conversations. Despite my concerns about the reliability of Steven’s evidence, I accept his evidence that he had provided an appropriate rationale for the acquisition of the properties. I think it improbable that Dr Hamilton would have been willing to proceed were that not the case.

232    Dr Hamilton accepted that he had had weekly meetings (I understand per telephone) in which Steven had described to him the activities in which he was engaging. Again, it is implausible to think that Steven had not provided relevant information in these discussions.

233    I think it likely that there would also have been telephone discussions in relation to the later properties, in which Dr Hamilton was provided with information about them.

234    Secondly, Dr Hamilton’s complaint at trial that Steven had not provided information with respect to the properties for which he provided contracts is inconsistent with his own contemporaneous conduct in seeking to attract investors. His preparation of Information Memoranda (IMs) to circulate to potential investors in FHP is particularly telling in this respect. Dr Hamilton prepared three IMs: the first in early 2016; the second in late 2016/early 2017; and the third in early 2018. Each successive information memorandum was an updated iteration of its predecessor save that the third contemplated a unit trust structure.

235    In the IMs, Dr Hamilton made a number of statements which are inconsistent with him not having received information about the properties from Steven. By way of example, in the first, Dr Hamilton said that FPH had “secured and now looks to purchase and operate a portfolio of a number of key regional primary production properties in Queensland”. He described each property as having been identified “via the proprietary processes of [FPH], as being the strongest candidates for timely non-primary production income streams”. Later in the IMs, Dr Hamilton described FPH’s proprietary selection process as utilising “multiple sources of information” to determine a score for each property. He said that the information related to:

    primary production income;

    tertiary income;

    timing of possible future CCA agreements;

    degree of gas activity and scale of the agreements;

    degrees of disruption;

    political considerations;

    terms of contract; and

    improvements required.

236    If these statements were true, Dr Hamilton must have been relying on the information provided by Steven. Dr Hamilton confirmed that this was so. In his cross-examination he said that he had believed the contents of the first IM to be accurate and that he had satisfied himself that there was a reasonable basis for his statements. Specifically, he said that he had satisfied himself, on the basis of his consistent dealings with Steven, that there was a reasonable basis for the statements made in the first IM. He said, amongst other things, that he recalled receiving information from Steven on which he had considered it appropriate to act without seeking independent verification of what he had been told.

237    In the third IM, Dr Hamilton gave a description of Fairfield, Millbrook and Ridgebrook and said that they had been secured with agreed contracts in place and deposits paid. He also said that the funds raised pursuant to the IM would be used for their acquisition. He then continued:

[A] further 8 properties ranging from 500 hectares to 100 hectares similar to the contracted properties are under negotiation and some under contract … The potential for gas activity is high in the trustees’ opinion and based [on] the trustees’ intellectual property and investigative systems.

238    It is plain that there are respects in which these statements of Dr Hamilton to potential investors were misleading. FPH had not secured the Fairfield Property, Millbrook or Ridgebrook. They were not under contract and FPH had not paid deposits. FPH did not have a further eight properties “under negotiation and some under contract”. Dr Hamilton’s willingness to make these misrepresentations did him no credit.

239    However, relevantly for present purposes, the information which Dr Hamilton was relaying about the properties (their size, description, potential for CSG activity, and identification of FPH’s investigative systems) must have been provided to him by Steven.

240    As counsel for the respondents submitted, the repeated efforts at fundraising by Dr Hamilton using the information provided by Steven belie the contention he now advances that he had been dissatisfied with Steven’s performance and with the lack of information he had provided. The statements in the IMs belie Dr Hamilton’s claim in his reply affidavit that “Steven never shared, made available or explained to me any reliable intelligence he may have gathered in relation to any properties”.

241    Another form of contemporaneous conduct of Dr Hamilton which is inconsistent with his present claims are the persistent attempts he made to have Steven sign a consultancy agreement in mid-2016. Those attempts are inconsistent with the dissatisfaction which he now claims to have had with Steven’s performance of his functions under the PCA. As Steven’s refusal to execute a consultancy agreement is a discrete matter on which the applicants rely for the contention that Steven was only purporting to perform the PCA, I will address this subject matter later.

242    Next, there are aspects of Dr Hamilton’s own evidence which are inconsistent with the applicants’ case that Steven had not at any time intended to perform the functions expected of him under the PCA. For example, Dr Hamilton said:

I entered this business with Mr Van Niekerk because he was the property expert. I was learning from – property from him. So I was taking instruction from Mr Van Niekerk as to what was appropriate and what wasn’t and he was teaching me along the way. So, I mean, I – so when he presented this opportunity and then said to me, “this is an opportunity. We can go and raise capital for this. This is how it is going to work. This is what we’re going to do”. And on all those properties, I yielded to him because he was my property expert. This is what we had set up in Fairfield Pastoral, is that we had a property expert; we had Vaughan King; we had Matt Ladd.

(Emphasis added)

243    Although this is expressed very generally, this evidence seemed to be an acknowledgement by Dr Hamilton that he had received information from Steven about the opportunities which he presented to him and that he had regarded Steven as discharging the functions expected of him.

244    At other points of his evidence, Dr Hamilton accepted that Steven had been engaged in securing properties and that in order to do so, he was driving “thousands of kilometres”.

245    The next matter counting against Steven having no intention to perform his functions under the consultancy arrangement is motive. Why would Steven have intended, from the very commencement of the arrangement, to have misled Dr Hamilton as to his true intentions? It is to be remembered that, through Cradle Estate, Steven had a 50% interest in FPH and therefore stood to profit personally if the joint venture was successful. At the commencement of February 2015, Steven knew that the investment in the Fairfield Property had been very profitable and he expected the investment in Millbrook to be profitable. From Steven’s perspective, these investments were particularly satisfactory as, not only had he not had to outlay any of his own money, he had been able to achieve the position while bankrupt and without having to make any contribution of the proceeds to his bankrupt estate. It is reasonable to infer that he thought that he had found in Dr Hamilton a co-venturer willing to assist him in profiting from investments of a similar kind. Moreover, unlike his arrangement with Mr Bernays, he was to be remunerated on a monthly basis for his services. In my view, these matters indicate that Steven would have wished his arrangement with Dr Hamilton to work, at least at its commencement. They are not circumstances which bespeak an intention to defraud. I accept, however, that this does not preclude the possibility that Steven later chose to present a charade of performance in order that the consultancy payments continue. I note in this respect that, with the exception of a single payment in January 2018, no consultancy payments were made after July 2017.

246    A final matter is a point made by the respondents’ counsel. It is inconceivable that Steven could have maintained for a period of over three years a charade that he was performing functions under the PCA when that was not the case. This would have involved Steven misleading not only Dr Hamilton but others, including Mr King, Mr Ladd, Mr Hill and Mr Quince who were engaged through Steven himself in the development of the contemplated business model.

247    I add, to the extent that it may be relevant to the issue of whether Steven’s conduct was misleading or deceptive, that I am satisfied that the venture between Dr Hamilton and Steven failed because FPH never raised the finance with which to acquire a single property. That is plain on the evidence. Dr Hamilton’s evidence that settlements could not be completed on the contracts provided by Steven because Steven had not provided sufficient concerning the properties is a reconstruction contradicted by the documentary evidence. In particular, I do not accept Dr Hamilton’s evidence that he had told Steven that, without supporting documents, he would not be able to authorise the purchase of the properties and that FPH would not be able to secure new capital. This was one of the instances in which I considered that Dr Hamilton had shaped the narrative to fix his case.

The purchase of Ridgebrook

248    The applicants’ claim with respect to Ridgebrook has an overlap with its claims concerning the Fairfield Property and Middlebrook, but it is convenient to address it separately. When the circumstances concerning the acquisition of Ridgebrook are considered in isolation, the applicants’ claim that Steven, in effect, diverted an investment opportunity away from FPH and that his conduct in doing so is probative of his pretence in relation to FPH seems plausible. However, the true position is a little more complex.

249    With respect to Ridgebrook, the applicants’ claim that Steven had only purported to, but had not, performed his functions under the PCA was particularised as follows:

[14.14]    In October 2015, while purporting to perform his duties for the applicants, Steven identified a property at Lot 20, Wieambilla Road, Wieambilla, Queensland, then comprised in Queensland Title Reference 50169970 and known as “Ridgebrook” (the Ridgebrook Property) that was adjacent to the Millbrook Property and adjacent to the “Kenya” gas processing plant.

[14.15]    At all material times, Steven believed that the Ridgebrook Property had a reasonable prospect of containing coal seam gas deposits based on its proximity to the Fairfield Property.

[14.16]    Steven took no steps to cause the applicants to purchase the Ridgebrook Property.

[14.17]    Instead, on 18 December 2015, Steven and Bernays caused Original Fairfield to purchase and become the registered proprietor of the Ridgebrook Property.

[14.18]    Thereafter, on numerous occasions during the course of 2016, Steven represented to the applicants that he would cause Original Fairfield to act in accordance with his representations pleaded in paragraph 9D above, but now in respect of the Fairfield Property, the Millbrook Property and the Ridgebrook Property.

[14.19]    In response, the applicants would request that Steven take action in relation to the proposed transfer, including providing Steven with written contracts, and Steven would take no action in relation to those requests.

(Emphasis in the original)

250    As counsel for the respondents pointed out, the applicants do not make a freestanding claim that they had suffered loss because Steven had, in breach of his obligations under the PCA, diverted an opportunity to purchase Ridgebrook away from FPH. They make this allegation only as a particular of the claim that Steven had never intended to perform, and had never performed, the obligations under the PCA. Nonetheless, there were times in the trial when the applicants’ allegations concerning Ridgebrook seemed to be made on the basis that there was a freestanding breach of the agreement or of Steven’s obligations as a consultant. By way of one example, in his reply affidavit Dr Hamilton deposed that Steven had “ultimately” chosen to acquire Ridgebrook for the benefit of Original Fairfield and not FPH.

Background circumstances

251    The applicants’ interest in Ridgebrook commenced in May 2015. On 20 May 2015, Steven forwarded to Dr Hamilton a copy of a map he had obtained from a contact in QGC. I note in passing that his conduct in doing so is consistent with an actual performance of his functions under the PCA.

252    The map showed a grid of wells on Middlebrook and on Ridgebrook which neighboured it. Dr Hamilton acknowledged that he had seen the map at that time but said that, while he had appreciated that it related to Middlebrook, had not known that Ridgebrook was its neighbour and that it too was shown on the map. He agreed, however, that, in the latter part of 2015, he had known that Ridgebrook was Middlebrook’s neighbour. I regarded some of Dr Hamilton’s evidence on this topic as implausible as it is probable that he and Steven discussed the map and what it showed. I consider that Dr Hamilton knew, from at least shortly after 20 May 2015, that Ridgebrook neighboured Middlebrook and that it had the potential for a number of CSG wells.

253    Commencing in June 2015, Steven began “courting” the owner of Ridgebrook (a Mr Tim Day who was a USA citizen) with a view to purchasing Ridgebrook. This included meeting Mr Day at Chinchilla on 15 October 2015. Steven’s “courting” continued until 12 November 2015 when Mr Day executed a contract for the sale of Ridgebrook for a price of $300,000.

254    Dr Hamilton acknowledged that he had been aware of Steven’s contact with Mr Day and that Steven was trying to bring about a purchase of Ridgebrook. I find that, either expressly or tacitly, Dr Hamilton approved Steven’s “courting” of Mr Day. One of the documents at trial suggests that Dr Hamilton may have sought to influence the manner of Steven’s approaches. It is, on its face, a copy of an email which Dr Hamilton sent to Steven on 22 June 2015 with the subject heading “Son of Millbrook”. The content was as follows:

Hi Di,

Interesting thoughts from your American potential vendor.

As his new neighbour I have had multiple discussions with the gas industry and I can tell you as a matter of fact they are not paying very much and not buying any land. He is also not adjacent to the operation. For example Jamie Dougle’s land sits between us and the gas operation and they are NOT buying his.

As you know payment is a disturbance payment given the landholders for compensating their everyday agricultural business assuming he is resident on the land.

As Tim is not carrying out any improvements around his land they may just give him a token payment. Ownership is not to the core as in the USA.

We also own 2000 acres up the road adjacent to Kenya water treatment plant and have multiple dealings with the gas industry.

Kind regards

(Emphasis in the original)

255    Dr Hamilton accepted that the email is shown as having been sent from his email address but was adamant that he had neither written nor sent it. He said that he had never heard of Di Ewen, a real estate agent acting on behalf of Mr Day. Dr Hamilton denied the suggestion that he had sent the email to Steven as a suggestion for an email he could write to Ms Ewen. I have considerable reservations about Dr Hamilton’s denials of these matters, and it is noteworthy that the Court was not provided with any other explanation for the email. However, it is not necessary for the disposition of the proceedings for the Court to make a finding about the authorship or intention of the email and I will refrain from doing so.

256    As the negotiations with Mr Day moved closer to a concluded agreement, there were discussions about how the purchase could be managed. On 28 October 2015, Dr Hamilton sent an email to Steven, copied to Mr Ladd, which contained the following proposal concerning Middlebrook and Ridgebrook:

1. Millbrook 2 - CONTRACT $300,000 plus 3 year rates, stamp duty, extras $330,000 - first mortgage to Richard for $330,000.

2. Millbrook 1 - CONTRACT $300,000 plus 3 year rates, stamp duty, extras $330,000 - first mortgage to Fairfield Pastoral for $330,000. NOTE Any money that Fairfield Pastoral has put for improvements will be refunded at event.

Steve can you please get me receipts of Fairfield expenditure here.

3. Fairfield - Haywynn play - RPP will set up Haywynn deal - once deal in place we will work to organise asset purchase of Fairfield for 650k.

RPP to continue to provide Richard and mates and others with great opportunities with clearly defined exits and returns!

(Emphasis in the original)

257    Dr Hamilton’s references to Millbrook 1 and Millbrook 2 were references to Middlebrook and Ridgebrook respectively. The reference to “Richard” was a reference to Mr Bernays. Dr Hamilton agreed that in the email of 28 October 2015, he was proposing that Mr Bernays lend FPH $330,000 secured by a first mortgage over Ridgebrook so that FPH could pay the purchase price of $300,000 plus the extras. In relation to Millbrook, he was proposing that Original Fairfield sell it to FPH for a purchase price of $300,000 with Original Fairfield providing vendor finance for $330,000, secured by a mortgage over Middlebrook.

258    Some of Steven’s responses in the cross-examination concerning this email were confused and implausible but I have kept in mind that it was not his email and that Dr Hamilton’s proposals that Mr Bernays lend, and provide vendor finance for, amounts which exceeded the respective purchase prices could hardly be regarded as realistic. Dr Hamilton’s proposals, if accepted, would have meant that Mr Bernays carried the risks of a financier but without any prospect of upside from the investments.

259    It is unsurprising that Mr Bernays did not regard Dr Hamilton’s proposals as attractive and did not agree to them. The evidence did not disclose when or how Mr Bernays’ attitude was communicated to Dr Hamilton but I am satisfied that it must have occurred shortly after 28 October 2015.

260    The email of 28 October 2015 does, however, indicate that at that time Dr Hamilton was exploring means, by which FPH could acquire Ridgebrook, even if his proposals were unrealistic.

261    Other evidence in the trial indicates that, by 1 November 2015, Steven had agreed with Mr Bernays that Original Fairfield would be the purchaser. He gave the following explanation:

In the beginning we wanted Middlebrook and Ridgebrook to be purchased by [FPH]. They had never raised capital, so they didn’t. So I organised for Original Fairfield to secure the blocks so that we could use them later, when we did raise capital.

262    The evidence did not disclose any discussion between Steven and Dr Hamilton by which it was agreed that Original Fairfield would be the purchaser of Ridgebrook. Steven’s explanation suggests that he made the decision himself. However, I am satisfied that there must have been some discussion about Original Fairfield being the purchaser. An email sent by Dr Hamilton to Steven on 12 November 2015 makes clear that he knew then that Original Fairfield was to be the purchaser and that it would do so on the basis that it would sell Ridgebrook to FPH later when FPH had the funds to finance the acquisition. The evidence indicates generally that it was part of Dr Hamilton’s strategy to secure Ridgebrook by this means so that it could be used in FPH’s fundraising attempts. The email of 12 November 2015 was in the following terms:

Steven,

I wanted to confirm the conversation and understanding/agreement that you and Richard had come to over Fairfield, Millbrook and the next door property.

1. My understanding of our conversation is you and Richard have agreed to 60% to "RPP no1” and 40% “Fairfield pastoral" split of revenue

On the following properties

1.    Millbrook

2.    Millbrook neighbour

3.    Fairfield.

2. the Purchase price individually remains - if RPP wishes to purchase.

a)    300K for Millbrook neighbour. (of which RPP No 1 already spent much in salaries and structure in finding and securing this property)

b)    350K on Millbrook (of which RPP No 1 has already spent 40k in improvements salaries to improve)

c)    600K on Fairfield.

Let me know if this there are items here that are outside your agreement

263    In his cross-examination, Dr Hamilton agreed that in this email he was confirming a conversation which he had with Steven after 3 November 2015 and that he had known then that FPH was not acquiring Ridgebrook. He also agreed that he understood that Steven had agreed with Mr Bernays a 60/40 split of the income on the three properties in FPH’s favour in the event that FPH completed the purchase of them. He said that he had not known at the time that he wrote the email whether or not Mr Bernays had contracted to buy the properties. Those two circumstances indicate Dr Hamilton’s willingness for Original Fairfield to buy Ridgebrook. I add that it was difficult to make sense of some of Dr Hamilton’s evidence about his state of mind at the time he wrote the email of 12 November 2015. However, contrary to his evidence, I am satisfied that Dr Hamilton knew at least by 12 November, and was content for it to happen, that Mr Bernays through Original Fairfield would acquire Ridgebrook.

Evaluation

264    One thing is clear, despite Dr Hamilton’s assertion in his evidence to the contrary, FPH was not in a position in November/December 2015 to fund the purchase of Ridgebrook without external assistance. As at 1 December 2015, FPH had $100,065 in its bank account and FPH No 1 had $63,853.45. The aggregate of these amounts was less than half the purchase price of $300,000 plus the extras. There is no suggestion that Dr Hamilton had proposed seeking external finance with which to fund the purchase other than by the unrealistic suggestion he made concerning Mr Bernays on 28 October 2015. The very making of such an unrealistic suggestion is a marker of FPH’s lack of capacity to acquire Ridgebrook. I note in this respect that Dr Hamilton’s email, in relation to the proposed acquisition of the Beelbee Road Properties which was also contemplated in November 2015, that he wished to deploy FPH’s equity in purchasing those properties. Plainly, there was insufficient equity to do so, let alone to purchase both Ridgebrook and the Beelbee Road Properties.

265    In the circumstances, the decision (which I accept was probably driven by Steven) to have Original Fairfield acquire Ridgebrook so that the opportunity to make a profitable investment would not be lost is understandable.

266    I accept that the acquisition of Ridgebrook by Original Fairfield was more beneficial for Steven. He or his interests stood to have 50% of the profit from the investment whereas his return if the acquisition was made by FPH would have been a little less.

267    However, as counsel for the respondents contended, despite Dr Hamilton’s present claims, there is no evidence at all of him having protested to Steven in early November 2015 at him allowing Original Fairfield to complete the purchase of Ridgebrook. If, as Dr Hamilton now suggests, Steven had diverted the opportunity away from FPH and had in effect cheated FPH, one would have expected there to be a protest at the time. Indeed, one would have expected Dr Hamilton to have taken the view that Steven’s conduct was fundamentally inconsistent with the continuance of their relationship.

268    In my view, the absence of complaint is understandable having regard to four matters:

    Dr Hamilton had been informed by Steven that Original Fairfield would acquire Ridgebrook and he had agreed to that course;

    Dr Hamilton knew that FPH was not in a position to make the purchase;

    Dr Hamilton expected that FPH would be able later to acquire Ridgebrook from Original Fairfield as a “friendly” vendor; and

    Dr Hamilton thought that, even though Ridgebrook had not been acquired by FPH, he could refer to it in the IMs which he was preparing for distribution to potential investors. I add that Dr Hamilton’s subsequent conduct in relation to Ridgebrook, including involving himself in the negotiation of the CCA concerning it, is confirmatory of this view of the matter.

269    In all these circumstances, I do not regard Steven’s conduct in relation to Ridgebrook as being particularly probative of the misleading or deceptive conduct by the applicants.

270    Before leaving this topic, I indicate my rejection of the suggestion made in the cross-examination of Steven and repeated in the final submissions that an email from Steven to Dr Hamilton of 5 November 2015 indicated that, at that date, Steven had decided that Original Fairfield would be the purchaser of Ridgebrook. The content of the email indicates that it concerned a different property altogether, namely, a property at Eden Valley in South Australia.

Transfer of the Fairfield Property, Millbrook and Ridgebrook

271    The applicants claim that Steven’s lack of intention ever to perform the PCA is evidenced by the fact that he never procured the transfer of his own interest, or the whole of the interest, in Original Fairfield or in the properties owned by it to FPH.

272    These matters were important to Dr Hamilton as he wished by these transfers to secure an income stream for FPH (by at least Steven’s share of the Disturbance Payments) and to obtain for the balance sheet of FPH an asset of substance. He thereby wished to be able to bolster FPH’s presentation to potential investors and to have security which could be provided in the borrowing of funds.

273    This was a topic on which Dr Hamilton’s muddled thinking was evident as it seems that the discussions were essentially at the conceptual level rather than him giving attention to the nature and extent of the actual interest held or controlled by Steven or to the means by which that interest could in fact be transferred to FPH. The very general nature of the discussions between Dr Hamilton and Steven on this topic is evident in the applicants’ pleading of the representations in [9D] of the 5SC set out earlier in these reasons.

274    The imprecision in the agreement is very evident in the terms used in [9D]: “would cause or arrange”; the “true ownership”; “the whole or part”; “in return for the issue of shares”; the transfer to be effected by the transfer of units in the QPU Trust or the title in Fairfield and Millbrook Properties; the transfer being a 50% interest in the QPU Trust or in the properties themselves or, subject to FPH being able to “borrow or supply sufficient funds” the whole of the units or the whole of the interest in the properties.

275    Remarkably, Dr Hamilton’s principal affidavit contained no reference at all to this representation.

276    In his reply affidavit, Dr Hamilton said in relation to the alleged representation:

[15.3]    It was prior to the registration of [FPH] that Steven informed me that he would arrange for his share in the [QPU Trust] which owned [Original Fairfield] that in turn owned properties in Queensland to be transferred to [FPH]. Steven and I discussed that this would:

[15.3.1]    underpin the balance sheet for [FPH] as a start-up company;

[15.3.2]    provide [FPH] with an income stream by way of Steven’s share of the Disturbance Payments;

[15.3.3]    allow [FPH], with the income stream, to pay Steven a consulting fee; and

[15.3.4]    result in a loan account being recorded from [FPH] to Steven.

[15.4]    Steven did not tell me that the transfer of his share in the [QPU Trust] was dependant on or required the start-up company to buy the balance of the shares from Richard Bernays.

277    Later in the same affidavit, Dr Hamilton deposed that “prior to the registration of [FPH and FPH No 1], Steven informed me that he would arrange for his interest in [Original Fairfield] (including the properties owned by it) to be transferred to FPH to underpin the asset base of the new company and to provide it with an income stream”. As is apparent, Dr Hamilton did not claim that Steven had given any commitment with respect to the full ownership of Original Fairfield or of the properties it owned. This means that the applicants’ pleaded representation involves something of a gloss on Dr Hamilton’s evidence.

278    Dr Hamilton did not depose to having made any enquiry as to the value of the units controlled by Steven in the QPU Trust. In fact, they may not have been worth much, given that Mr Bernays had secured the funds he had advanced by a mortgage over (at the least) the Fairfield Property and probably over Middlebrook, and the substantial profits obtained to that time from the Fairfield Property had been distributed.

279    Steven did have some communications with Mr Bernays in February 2015 concerning the terms on which he would be willing to be bought out from Original Fairfield. The latter indicated a price of $950,000.

280    Steven deposed, and I am willing to accept, that he told Dr Hamilton that Mr Bernays was willing to sell his interest in Original Fairfield for $950,000. At that time, FPH did not have the funds to make the purchase and the parties, including Mr Bernays, appear to have proceeded on the basis that the sale and purchase would occur when FPH had sufficient funds or was able to borrow sufficient funds.

281    The evidence indicates that FPH was never in a position to buy Mr Bernays’ interest in Original Fairfield. It was only ever able to attract two investors, Mr King and Mr Peacock, and just on half of Mr Peacock’s investment of $250,000 was used to refund the loan of $120,000 from the Hamilton Family Trust. Dr Hamilton had pursued the raising of finance from a financier and he held meetings with NAB and the Bank of Queensland. It became apparent, however, that financiers of this kind would lend only between 50-70% of the valuation figure and, in making the valuation, would disregard CSG income, whether actual or potential. By late 2015, it was obvious that, if FPH was to make purchases, it would have to attract other investors.

282    In short, the evidence indicates that the acquisition by FPH of the whole or part of the interests in Original Fairfield did not proceed because FPH could not raise the funds with which to make the purchase. It was not successful in raising sufficient funds from investors and did not have the means of obtaining external finance. Attempts were made to have Mr Bernays be a financier or to provide vendor finance but he was not willing to act in that way.

283    In relation to the transfer of Steven’s units in the QPU Trust to FPH, there is sparse evidence of any attempt to have that occur. Dr Hamilton agreed that the discussions with Steven had been to the effect that he would transfer his interest in Original Fairfield for “fair value”; that that meant there had to be an agreement on the price; and that, while there had been discussions about the price, he and Steven had never fixed on a price.

284    In contrast to Dr Hamilton’s attempts to have Steven execute a consultancy agreement (to which I turn next), there is scarcely any evidence of Dr Hamilton pressing Steven to transfer his units in the QPU Trust to FPH.

285    That makes difficult the claim that Steven’s failure to transfer, or to procure the transfer, of the units in the QPU Trust to FPH is probative of ongoing intention on his part not to perform his functions under the PCA.

Conclusion

286    In my view, the applicants do not make out this part of their case. The evidence does not support the conclusion that Steven did not intend, in late 2014 or early 2015 when he made the representation about transferring his interest in Original Fairfield to FPH that he did not in fact have the intention to do so. To the contrary, I think it more likely that Steven did wish the proposed joint venture to work. He was willing to have his interest in Original Fairfield transferred to FPH but for fair value. The real reason for the transfers to FPH never having been made subsequently is that FPH could not raise the funds or arrange the finance with which to make the acquisition.

287    This part of the claim fails.

The refusal to execute a written consultancy agreement

288    The applicants contend that Steven’s refusal, without explanation, to execute a written consultancy agreement also constitutes evidence that he never intended to perform his functions under the PCA. There are difficulties with this claim.

The evidence

289    Dr Hamilton deposed that he had provided a draft consultancy agreement to Steven on at least four occasions. He said that Ridge Estate and Steven had never executed a consultancy agreement or otherwise indicated their agreement to the terms he had proposed. He claimed that Steven had been “repeatedly evasive”.

290    The four occasions to which Dr Hamilton deposed seemed to be:

    10 February 2015;

    15 June 2016;

    17 June 2016; and

    13 July 2016.

291    In relation to the draft provided on 10 February 2015, Dr Hamilton exhibited an email he had sent to Steven that day in which he referred to attaching a consultancy agreement for Steven’s signature. I am satisfied that Dr Hamilton’s reliance on this draft consultancy agreement was a product of his reconstructed narrative. Although Dr Hamilton sent the draft consultancy agreement after FPH (then RPP) and FPH No 1 (then RPP No 1) had been incorporated, the proposed contracting party was the Hamilton Family Trust and there was a suggestion that the consultancy related to “property matters” on which Steven had assisted that Trust. The proposed term was only six months subject to earlier termination on seven days’ notice and the proposed remuneration was $20,000 per month. Dr Hamilton’s evidence about this draft consultancy agreement was confused as he later said that it was only after he had sent the draft consultancy agreement that he and Steven had decided to establish RPP and attributed his omission to mention these circumstances in his principal affidavit to “oversight”.

292    At one stage in his evidence, Dr Hamilton suggested that he had next provided a draft consultancy agreement to Steven in April or May 2016. He acknowledged, however, that he had, in [66] of his reply affidavit, been attempting to portray that Steven had been refusing to sign a consultancy agreement from August 2015. This was consistent with applicants’ pleaded case that Dr Hamilton had sent draft of a consultancy agreement “on various occasions in 2015 and 2016”. Both the plea and Dr Hamilton’s evidence about this were misleading as Dr Hamilton had not even provided a consultancy agreement for Steven’s signature before 1 June 2016.

293    The documentary evidence includes an email from Dr Hamilton to Steven on 9 June 2016 in which he refers to having provided a consultancy agreement to Steven on 1 June 2016 with a request that he execute it. However, neither the email of 1 June 2016 nor its attachment was in evidence.

294    On 15 June 2016, Dr Hamilton sent, amongst other things, another copy of a consultancy agreement and expressed to Steven his concern that it had not been executed. He said that Steven had then requested a meeting to discuss the matter.

295    On 17 June 2016, the execution of a consultancy agreement was discussed at the FPH shareholders’ meeting (Dr Hamilton, Steven, Mr King and Mr Peacock were in attendance). The minutes of the meeting include the following:

1. Consultancy Agreement Steven van Niekerk Trading as Ridge Estate –AH

- it was agreed by AH, VK, NP that agreements were essential for all transactions and no further transactions should occur without them.

- AH, VK, NP agreed that the non-compete clauses and IP protection clauses along with other content were essential to protect the FPH.

- SVN dissented from this on the point that an agreement with SVN and Ridge estate was not necessary and had concerns regarding the bureaucracy slowing down the business.

- SVN agreed after discussion to sign the consultancy agreement however wanted to change items in the agreement that referenced his time commitment to the business.

- SVN agreed to review the document and highlight the areas of his concern and then meet with AH to finalise in the next week.

- It was agreed that all shareholder will sign Advisory agreements that mirror the major non compete and IP protection elements that are in SVN/RE consultancy agreement.

296    As is apparent, Steven resisted the suggestion that an executed consultancy agreement was necessary and indicated in any event that he sought a revision in particular of the clause that he devote himself full time to the consultancy. He and Dr Hamilton were to meet the following week to discuss the revisions.

297    The evidence did not indicate whether Dr Hamilton and Steven did meet the following week. However, on 13 July 2016, Dr Hamilton sent a revised form of the consultancy agreement to Steven. In the accompanying email, Dr Hamilton said:

Steven,

I have made changes to the original agreement to take out references to hours worked and also leave as requested.

I cant wait for you to produce your own doc please review and sign this one.

Now contains:

1.    No reference to hours worked

2.    Unlimited annual leave.

The agreement has to be between FPH and Steven van Niekerk and Ridge estate - this will not effect your tax.

Ridge estate gets the income as the provider and you are the employee of Ridge Estate.

I will create an exact version for Myself, Vaughan and Nick as you have requested.

…

Please sign and send back to me - This is the last structural hurdle that I will put in front of you - after this is done we can all get on with running the business for the betterment of all.

This provides good sound structure and rules on how we all behave. It creates trust and teamwork.

Please don’t delay in getting this reviewed and signed as delay creates exactly the opposite.

298    It seems that Steven must then have asked for a statement of the “true intent” of the consultancy agreement. Dr Hamilton responded to that request by an email on 14 July 2016:

Steven,

As requested here is a statement of the “True intent” of the Consultancy Agreement that you asked for. The "True Intent” of the document is best described but not limited to these statements.

1.    Is to acknowledge that the key person driving Fairfield Pastoral Holdings Pty Ltd success is Steven van Niekerk who is employed by Ridge estate and that this key consultancy role needs to formalised.

2.    To give structure to the agreed expectations between both parties which are Steven van Niekerk via ridge estate and Fairfield Pastoral Holdings and its subsidiaries.

3.    To enable a good governance structure in order to satisfy regulatory, fiduciary and governance responsibilities that the company and its director has to the shareholders including major shareholder Cradle Estate for which you are associated.

4.    To provide confidence to the shareholders that further investment in Steven van Niekerk’s consultancy will be used in the best interests of Fairfield Pastoral Holdings and its subsidiaries.

I hope this helps clarify the overarching “true intent” of the document.

There is no intent by Fairfield to act unfairly. In essence the intent is to build confidence that we are all in this together.

In my view this is the only way that the big success we are looking for will occur.

299    It can be inferred from this email that Steven had expressed some concerns to Dr Hamilton about the purpose of a consultancy agreement and the use to which it may be put.

300    Dr Hamilton followed up the request for an executed consultancy agreement in an email to Steven on 10 August 2016:

Steve,

I am disappointed you haven’t been able to call me back - as a result I emailing items for discussion.

Can you please come prepared with these items.

1. A signed agreement that is essentially the same as the ones we all have signed.

or

an explanation as to why this has not been done in a fashion that satisfies everyone - what are your fears?

I have texted you this question but you have avoided replying to any of these texts on this topic. - is this deliberate -again what are you afraid of?

…

301    The evidence did not indicate what reply, if any, Steven made to that email but in any event, Ridge Estate did not ever execute the consultancy agreement sought by Dr Hamilton.

302    Dr Hamilton gave the following explanation for wanting Steven to sign the consultancy agreement:

XXN:    And you accept that at this point in time, 10 August, just like the position in early July, it was open to you to say, “well, in the present circumstances, I’m not going to continue with the arrangements with Ridge Estate”?

A:    Yes.

XXN:    But you couldn’t let Ridge Estate go because the prospect of you turning your founder shares into millions of dollars was really wholly dependent upon Mr Van Niekerk?

A:    Yes. I mean, we – we were – we had – Steven was our property expert. He – he really – he was the basis of our – our business. We had to – we had to retain him and – and it was – I think it was – what I was attempting to do was prudent in – in any corporate governance.

303    Dr Hamilton’s view in mid-2016 that Steven was “the basis of our business” seems inconsistent with the view now asserted that Steven had been doing no more than pretending to perform his functions.

The backdating proposed by Dr Hamilton

304    One aspect of Dr Hamilton’s evidence concerning his provision of the consultancy agreement to Steven for his signature was particularly troubling. The consultancy agreement which Dr Hamilton provided to Steven in June 2016 contained three indications that it was to be backdated to 1 March 2015. The first was at its commencement which stated “This Agreement was made on the 1st day of March 2015”. The second was in Appendix B which stated relevantly that “The Consultant be entitled … from 1 March 2015 [to] AUD $15,000 per month exclusive of GST”. The third was the signature page on which the date 1 March 2015 had been entered immediately above Dr Hamilton’s own signature.

305    Dr Hamilton denied that he had been seeking to backdate the document, saying that those dates were left over from the precedent which he had used to prepare the consultancy agreement and that he had simply forgotten to change them. However, Dr Hamilton was unable to nominate who it was with whom he had entered into the consultancy arrangement on 1 March 2015 which he had used as the precedent. After a call for production and the intervention of a weekend in which Dr Hamilton could make a search, he also acknowledged that he had not been able to locate a precedent bearing the date 1 March 2015. Dr Hamilton then acknowledged that, contrary to his previous evidence, he had intended to backdate the consultancy agreement “to reflect the beginning of the consultancy agreement back in March 2015”. He offered the explanation that he had “overreached” in his previous evidence. Dr Hamilton’s evidence on this topic was quite unsatisfactory and illustrative of his willingness to make up evidence as it suited him.

Steven’s explanation

306    Steven gave two reasons for his unwillingness to sign the consultancy agreements presented for his signature: he was unwilling to commit all of his time to FPH and unwilling to transfer his “intellectual property” to FPH given Dr Hamilton’s inability to that time to raise the funds with which to settle on the contracted properties.

307    The draft consultancy agreement presented to Steven in June 2016 was actually in the style of an employment contract. It required Steven to work full time for FPH (cl 6.1); to assign all intellectual property to FPH (cl 16); and contained a four year post-termination restraint of trade clause.

308    The draft consultancy agreement provided on 13 July 2016 contained the same terms save that, instead of specifying that Steven/Ridge Estate were to work full time for FPH, it specified that Steven/Ridge Estate were to “devote their attention to the Duties [specified in the agreement]”.

309    Steven’s concerns about the financial state of FPH and FPH No 1 were justified. As at 17 June 2016, FPH had $40.90 in its bank account and FPH No 1 had $41,464.32 in its bank account. The investment of Mr Peacock of $250,000 in May 2016 had been almost wholly dissipated (with $120,000 used to repay the whole of Dr Hamilton’s investment).

310    I am alert to the possibility that Steven had seized on these objections only in retrospect. Nevertheless, I think that his unwillingness to execute the draft consultancy agreements was both understandable and reasonable. It would have foolhardy for him to have subjected himself to a four year restraint given FPH’s difficult financial position. I note, in addition, that there was no suggestion that Dr Hamilton and Steven had agreed in February 2015 that a consultancy agreement would be subject to a restraint of trade or a transfer of intellectual property. These seem to be matters which Dr Hamilton had sought unilaterally to impose only in mid-2016 when FPH’s position was precarious.

311    Steven conveyed his concern about the time commitment to Dr Hamilton. I think it probable that he also raised his concern about the arrangement of his “intellectual property”. It is not the case, as the applicants contend, that Steven gave no reason for refusing to sign the consultancy agreement.

312    In short, I am not satisfied that Steven’s unwillingness to execute a consultancy agreement in mid-2016 is probative of a lack of intention on his part to perform his functions under the PCA.

Steven’s motivation to prolong the receipt of benefits

313    The applicants’ contention that Steven had only pretended to perform his functions under the PCA in order to retain the lucrative benefits flowing from the consultancy arrangements was supported by only brief submissions.

314    It is the fact that the benefits provided to Steven appear to have been generous and one can only wonder why Dr Hamilton agreed to them. I am willing to infer that Steven did wish to prolong the period during which he was in receipt of those benefits.

315    However, the applicants’ attempt to link a desire of Steven to prolong the receipt of the benefits, on the one hand, with the misleading or conduct alleged, on the other, has its difficulties. It would be more logical for Steven to have endeavoured to perform fully his obligations so as to satisfy Dr Hamilton and thereby prolong the receipt of the benefits. Steven must have been aware that a pretence at performing his obligations would be detected sooner or later, and that would have a detrimental effect on his other business relationships with Dr Hamilton.

316    This part of the applicants’ claim is not made out.

Conclusion on the claim of misleading or deceptive conduct

317    As noted at the commencement of this section of the reasons, the applicants set themselves a high hurdle to overcome in order to establish their misleading or deceptive conduct case. In my view, they have failed to do so. While there were no doubt aspects of Steven’s conduct which were unsatisfactory and there are reasons to question his conduct, the evidence does not persuade me, to the requisite standard, that Steven never intended from the outset to perform his functions under the PCA and that he maintained that intention thereafter. In particular, it does not persuade me that Steven engaged in a prolonged pretence about the performance of his obligations.

318    This means that the applicants’ claim against Philip as an accessory must also be dismissed.

The sham claim

319    The applicants make wide ranging claims of sham in the 5SC. They allege that the following actions were shams:

(a)    Steven’s nomination of Mr Dooley as a director of Original Fairfield, the allocation of the beneficial ownership of one share in Original Fairfield to Mr Dooley, Mr Dooley’s consent to the allocation of that share and his consent to appointment as a director of Original Fairfield (5SC [7I]);

(b)    the creation of the KEC EDU Trust (5SC [7M]);

(c)    the issue of a unit in the QPU Trust to Mr Dooley (5SC [7O]);

(d)    the nomination of Andrew Van Niekerk as a director and beneficial owner of Ridge Estate on its establishment on 10 September 2013 (5SC [7R]);

(e)    the resignation of Andrew Van Niekerk as director of Ridge Estate on or about 30 September 2013 and the appointment of Philip in his place (5SC [7U]);

(f)    the creation of the Ridge Estate Trust (5SC [7W]);

(g)    the appointment of Philip as a director of Original Fairfield on 22 October 2014 (5SC [9B]); and

(h)    the nomination of Philip as a director and beneficial owner of Cradle Estate (5SC [9F]).

320    In substance, the applicants allege that each of these action was a sham because the actual intention of those responsible for the action was that the income and assets of the entities in question would become, or would remain, Steven’s, and that he would have the benefit of them and that the appointed persons would act in accordance with Steven’s instructions. They allege that the arrangements were put in place to conceal Steven’s assets and income from his creditors and his trustee in bankruptcy.

321    The consequence, the applicants allege, is that each person or entity holding property which is the subject of the alleged sham did so, or does so, as a bare trustee.

322    The applicants seek in the proceedings to rely on the claim of sham in two principal ways. First, they rely on the shams as a means of attributing Steven’s conduct in the misleading or deceptive conduct claim to Ridge Estate, so that it too would be liable for that conduct. Secondly, they seek a declaration that, by reason of the shams involving Ridge Estate, it holds all its property, whether in its own capacity or as trustee of the Ridge Estate Trust, as a bare trustee for Steven. By this claim it seems that the applicant seek a means of recovery from the assets of Ridge Estate.

323    The principles bearing on whether a transaction is a sham are settled and can be referred to briefly. In Raftland Pty Ltd v Commissioner of Taxation (Cth) [2008] HCA 21; (2008) 238 CLR 516, the plurality (Gleeson CJ, Gummow and Crennan JJ) gave as one instance of a sham the intention of the relevant actors to a bring a document into existence as a mere piece of machinery serving some other purpose than that appearing on its face, at [34].

324    In the same case, Kirby J said:

[145]    The key to a finding of sham is the demonstration, by evidence or available inference, of a disparity between the transaction evidenced in the documentation (and related conduct of the parties) and the reality disclosed elsewhere in the evidence. Where, for example, the evidence shows a discordance between the parties' legal rights or obligations as described in the documents and the actual intentions which those parties are shown to have had as to their legal rights and obligations, a conclusion of sham will be warranted.

[146]    The test as to the parties' intentions is subjective. In essence, the parties must have intended to create rights and obligations different from those described in their documents. Such documents must have been intended to mislead third parties in respect of such rights and obligations.

(Citations omitted)

325    In Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 471, the High Court said at [46], that the term “sham” refers to steps which “take the form of a legally effective transaction but which the parties intend should not have that apparent, or any, legal consequences”.

326    In the present case, I am satisfied that the relevant subjective intention which is to be considered is that of Steven.

327    It is not necessary in my view to refer to all the evidence on which the applicants relied for their allegations of sham. That is because there is no difficulty in concluding that Steven, assisted by members of his family, engaged in an exercise of distancing himself from assets and income. In particular, Steven and his family members took steps before Steven’s bankruptcy which would prevent assets from vesting in his trustee in bankruptcy pursuant to s 58 of the Bankruptcy Act. I am satisfied that that was also the intention of the subsequent transactions. There is also no difficulty in concluding that Steven’s intention, and those of his family members, was to ensure that the assets and income in question would be available for use at Steven’s discretion.

328    However, as was explained by Lockhart J in Sharrment Pty Ltd v Official Trustee in Bankruptcy (1988) 18 FCR 449, a transaction is not to be characterised as sham merely because it involves the distancing of an asset from the subject’s creditors:

[T]he fact that the transactions of 1979 may have been intended by Mr Wynyard to present a shield against creditors does not, absence the transactions being set aside under the relevant provisions of the Bankruptcy Act, characterise them as a sham. The transactions may themselves be legally effective although intended to achieve an [un]acceptable purpose. In Miles v Bull (supra) Megarry J said (at 264):

“A transaction is no sham merely because it is carried out with a particular purpose or object. If what is done is genuinely done, it does not remain undone merely because there was an ulterior purpose in doing it.

329    See also Official Trustee in Bankruptcy v Alvaro [1996] FCA 483, (1996) 66 FCR 372 at 430-1 in which the Full Court said at 431:

There is nothing in the evidence to indicate that any party to any transaction intended that no effect be given to it and that there be no change in the legal or beneficial ownership of the property the subject of the transaction. Rather, on the whole of the evidence the contrary inference is to be drawn. It was the intention of the relevant bankrupt that each of the transactions to which the bankrupt was a party be real and effective to pass the property from the bankrupt as donee and to place it in the hands of others. In certain of the transactions an intended effect of each transaction was to place the property beyond the reach of the Commissioner as a creditor in the event of the undisclosed income being discovered and the bankrupt being assessed to income tax upon it. In others, the intended effect of the transaction was to advance a family member as part of an ordinary family provision unconnected with its effect on any creditor or future creditor.

330    Similarly, in the present case, the evidence indicates that the transactions impugned by the applicants were intended to, and did, have their apparent effect. The establishment of Ridge Estate was not a charade. It did become the purchaser of Lot 1, including by borrowing from NAB the monies with which to do so. It acquired cattle and equipment with which to operate the farm on Lot 1. FPH did pay the consultancy payments to it. It did register for GST and did subsequently file BAS statements. The rights which it acquired and the obligations it assumed were real. The fact that the purpose of the arrangements was to achieve some distancing between Steven and his assets does not mean that they were a sham.

331    The Court is not presently concerned with the efficacy of the arrangements made by Steven and the members of his family for the purposes of the Bankruptcy Act, the Income Tax Assessment Act 1936 (Cth) or the Income Tax Assessment Act 1997 (Cth) or other legislation.

332    The applicants’ claims of sham fail.

Reliance and causation

333    Given my finding that the applicants have not established their misleading or deceptive conduct claim, it is not necessary to address the issues of reliance or causation. However, in case the matter goes further, I add the following.

334    The parties’ final submissions gave relatively little attention to the issues of reliance and causation. This seemed to be because there was little contention that Dr Hamilton, and through him FPH and FPH No 1, had relied on the representations of Steven in their pursuit of the arrangement underpinning the PCA.

335    In these circumstances, it is convenient to repeat verbatim passages from my judgment in Lucas Earthmovers Pty Ltd v Anglogold Ashanti Australia Ltd [2019] FCA 1049.

336    Section 236(1) of the ACL provides that a person who suffers loss or damage “because of” the conduct of another in contravention of a provision in Ch 2 or 3 (which includes s 18) may recover the amount of the loss or damage by action against the contravenor.

337    The counterpart provision to s 236(1) in the Trade Practices Act 1974 (Cth) was s 82(1). It permitted a person who suffered loss or damage “by” contravening conduct to recover that loss or damage from the contravenor. In Wardley Australia Ltd v The State of Western Australia [1992] HCA 55; (1992) 175 CLR 514 at 525, the High Court said of s 82(1):

The statutory cause of action arises when the plaintiff suffers loss or damage “by” contravening conduct of another person. “By” is a curious word to use. One might have expected “by means of”, “by reason of”, “in consequence of” or “as a result of”. But the word clearly expresses the notion of causation without defining or elucidating it. In this situation, s 82 should be understood as taking up the common law practical or common-sense concept of causation recently discussed by this Court in March v Stramare (E. & M.H.) Pty Ltd, except in so far as that concept is modified or supplemented expressly or impliedly by the provisions of the Act. Had Parliament intended to say something else, it would have been natural and easy to have said so.

(Footnotes omitted)

338    It was not suggested that the use in s 236(1) of the ACL of the term “because of” effected any practical difference.

339    The Court must be satisfied that there is a causal connection between the contravening conduct, on the one hand, and the loss and damage alleged, on the other: Campbell v Backoffice Investments Pty Ltd [2009] HCA 25; (2009) 238 CLR 304 at [102].

340    It is not necessary that a misleading statement be the sole or dominant cause of an applicant’s entry into a transaction. It is sufficient if it was a cause (in the sense of materially contributing to) the loss: Henville v Walker [2001] HCA 52, (2001) 206 CLR 459 at [14], [61], [163]; I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41, (2002) 210 CLR 109 at [33], [57], [62], [90]. Nevertheless, common sense and practical experience may indicate that there is an insufficient connection between the contravening conduct and the loss as, for example, when a respondent’s conduct merely sets the scene, or provides the opportunity, for the loss to be incurred rather than being a cause of that loss in a meaningful sense: Stone v Chappel [2017] SASCFC 72; (2017) 128 SASR 165 at [354].

341    In some cases, it is helpful to consider the causal connection in two stages: first, whether the applicant relied on the misleading or deceptive conduct, and secondly, the sufficiency of the connection between the loss or damage claimed and the applicant’s reliance on the misleading conduct: Stone v Chappel at [353] and [354].

342    Applying those principles, had I found that Steven and Ridge Estate had engaged in the misleading or deceptive conducted alleged, I would have found that the applicants had established the requisite reliance on Steven’s conduct and the causal connection between that conduct and the losses they alleged.

The restitution claim

343    It is not necessary to address the applicants’ pleaded claim for restitution in any detail.

344    In their written closing submissions, the applicants submitted only:

3    Restitution

3.1    Alternatively, the Applicants make a claim for restitution of the Consultancy Fee on the basis that there has been a total failure of consideration.

3.2    In Mann v Paterson Constructions Pty Ltd, Nettle, Gordon and Edelman JJ explained that:

The "qualifying or vitiating" factor giving rise to a prima facie obligation on the part of the enriched party to make restitution is a total failure of consideration, or a total failure of a severable part of the consideration. In this context, consideration means the matter considered in forming the decision to do the act: "the state of affairs contemplated as the basis or reason for the payment". In many cases the relevant basis will be the benefit that is bargained for. In those cases, "[t]he test is whether or not the party claiming total failure of consideration has in fact received any part of the benefit bargained for under the contract or purported contract".

3.3    The receipt of any substantial part of the benefit bargained for in the context of incomplete performance will not constitute a total failure of consideration.

3.4    However, here, Fairfield did not receive any part of what it bargained for – the consultancy was simply not performed.

(Citation omitted)

345    The High Court has recently confirmed that restitutionary claims must respect contractual regimes and the allocations of risk made under those regimes: Mann v Paterson Constructions Pty Ltd [2019] HCA 32; (2019) 267 CLR 560 at [14].

346    In the oral closing submissions, counsel for the applicants recognised the difficulty in the claim in restitution:

It does … stand or fall with the misleading [or] deceptive conduct claim, given that there does need to be a total failure of consideration. And it’s difficult to see, given the way the evidence has played out, a circumstance in which your Honour would [not be] satisfied of the claim for misleading [or] deceptive conduct but, nevertheless, satisfied of the claim for restitution in that both, on the way it [has been] formulated, do require there to have been a failure of performance. But nevertheless, the claim otherwise is maintained.

347    This was a realistic concession. On my findings, there was not a total failure of consideration. Dr Hamilton may ultimately have been disappointed with the sufficiency or adequacy of Steven’s performance of his functions under the PCA but he has not established that Steven’s entire performance was a purported performance only.

348    For these reasons, the applicants’ claim for restitution is dismissed.

The conversion and detinue claim

349    As noted in the overview of the applicants’ claims at the commencement of these reasons, the respondents admit that FPH No 1 is entitled to an order for delivery up of the following items:

(1)    4WD drive recovery gear;

(2)    Honda 500CC quad bike;

(3)    John Deere lawn tractor D130;

(4)    Sea Container on ‘Millbrook’;

(5)    Discovery 4WD – unregistered;

(6)    Tow behind slasher for quad bike;

(7)    Bed linen for 4 bedrooms; and

(8)    10 x Concrete troughs for stock.

350    There will therefore be an order in favour of FPH No 1 in terms of [2] of the Further Amended Originating Application (FAOA).

351    FPH No 1 did not seek any additional order with respect to these items. Its claim with respect to the motor vehicles was resolved by earlier orders made by the Court and was not the subject of the trial.

FPH’s claims arising from its trusteeship of the Piney Ridge Trust

352    The applicants seek relief in various forms arising out of FPH having acted as trustee of the PRT. These include:

(a)    a declaration that the Deed of Appointment and Removal of Trustee (the Removal Deed) made by Brenda on 4 October 2018 is void, being a conveyance made with the intention of defrauding creditors, together with consequential orders;

(b)    a declaration as to FPH’s entitlement to be indemnified in respect of the expenditure it incurred on behalf of the PRT; and

(c)    an order for the payment out to it from the Court’s Litigation Fund of the proceeds from the sale of Lot 2 held in that Fund.

Factual setting

353    As previously noted, Ridge Estate acquired Lot 1, 252 Piney Ridge Road in late September 2013. The purchase price was $1.8 million which Ridge Estate funded in part by using $540,000 from the profits from Original Fairfield. Lot 1 is a significant property, described by Steven as containing a main house, a three bedroom cottage, an indoor swimming pool, a tennis court, stabling for 20 horses as well as farming infrastructure.

354    Lot 2, 252 Piney Ridge Road, Brukunga (Lot 2) has a common boundary with Lot 1. It came on the market in late 2015 or early 2016.

355    Steven wished to purchase Lot 2 but had the difficulty that the vendors were not willing to sell to him. He confirmed this in emails to others at the time (“the seller does not like me and would not sell to me” and “these sellers are not friendly and do not want to sell to me”). He also had the difficulty that he was bankrupt. Accordingly, Steven asked Dr Hamilton, and through him, FPH, to assist Ridge Estate to purchase Lot 2. Dr Hamilton and Steven agreed on an arrangement by which FPH would do so as a trustee of the PRT. They gave effect to their arrangement, although as will be seen, Steven did not carry through on all his commitments.

356    On 17 February 2016, FPH, as trustee of the PRT, entered into the contract to purchase Lot 2. The purchase price was $750,000 with a deposit of $30,000 and settlement was due on 8 April 2016. The contract became unconditional on 9 March 2016. For reasons not explained in the evidence, FPH was shown as the purchaser by its former name of Regional Pastoral Properties Pty Ltd, even though the change of name to FPH had occurred on 11 December 2015. Another curiosity not explained in the evidence is that RPP was shown as purchaser “as trustee for the [PRT]” when it does not seem to have been appointed trustee until on or about 31 March 2016 and, further, when it was appointed, its FPH name was used. It was not suggested that anything turned on these discrepancies.

357    FPH paid the deposit of $30,000 (borrowed from FPH No 1), borrowed $525,000 from NAB secured by a mortgage over Lot 2, provided $59,500 from its own funds and borrowed $182,130 from NAB secured by a mortgage over equipment. In addition, Dr Hamilton provided NAB with his personal guarantee. Dr Hamilton deposed, and I accept, that Steven had agreed that Ridge Estate would effect a refinancing within 90 days in order to repay to FPH the amounts which it had advanced to the Trust.

358    In their defence to the applicants’ pleading concerning the arrangements for the acquisition of Lot 2, the respondents plead that Steven and Dr Hamilton had agreed that FPH would purchase Old Fairfield and that “the purchase price to be paid by [FPH] for the purchase of the 50% of the issued share capital of [Old Fairfield] held beneficially for Steven’s family in completing the [Original Fairfield] Purchase would be equal to and would offset the price paid for the purchase of Lot 2 by [FPH]”. With the exception of some general evidence to that effect from Steven in relation to the contemplated purchase of Lot 2 some 12 months earlier, there was no evidence to that effect at trial and counsel did not make any submissions in support of that plea. I took it to have been abandoned.

359    The evidence indicates that, as between Steven and Dr Hamilton, it was Steven who had the responsibility for pursuing the finance arrangements for the settlement on Lot 2. He did so by contacting a private financier, Property Capital Pty Ltd, by approaching Mr Tony Bierbaum at NAB, and by retaining a conveyancer.

360    Settlement on Lot 2 occurred on 8 April 2016. After making allowance for the deposit of $30,000 paid on the signing of the contract, FPH had to provide funds of $763,130.51 at settlement. It did so by the following means:

The evidence did not indicate the purpose for which the balance of the funds contributed ($3,500) was expended.

361    I accept Dr Hamilton’s evidence that he caused FPH to act in this favourable way towards Steven at least in part in reliance on Steven’s assurance that he would cause a refinancing within a period of three months so that FPH could be repaid the amounts it had advanced and be relieved of its liabilities under the first mortgage and Equipment Loan and be relieved of his guarantee. That accords with the probabilities of the situation. However, Steven did not cause Ridge Estate to effect a refinancing and it did not occur. FPH continued as the registered proprietor of Lot 2 until the sale of the property on 5 July 2021 pursuant to this Court’s order for sale.

The fraudulent conveyance claim

362    Pursuant to cl 9.1 of the Deed of Trust of the PRT, Brenda, as the appointor, has the power to appoint “a new or additional Trustee at any time by written statement to that effect”. Clause 9.5 of the Deed of Trust provides:

9.5    Transfer of Fund

A Trustee shall on retirement or removal take all actions necessary to transfer the Fund or cause it to be transferred to any new or continuing Trustee or Trustees and shall deliver to the new or continuing Trustee or Trustees all books, documents, records and other Property of and relating to the Fund and do everything reasonably required by the new Trustee or Trustees to inform the new Trustee or Trustees of the full state of affairs of the Trust. Any continuing Trustee shall take all actions reasonably necessary to cause title to any assets of the Fund to be amended to include any additional Trustee.

363    On 4 October 2018, Brenda executed a document entitled “Deed of Appointment & Removal of Trustee” by which she removed FPH as the trustee of the PRT and appointed Ridge Estate in its place (the Removal Deed). Relevant clauses in the Removal Deed include:

1    REMOVAL OF OUTGOING TRUSTEE

The Appointor in exercise of her powers contained in clause 9.3(a) of the Deed and in the exercise of every other power enabling the Appointor in that behalf hereby removes the Outgoing Trustee from the office of trustee of the Trust as and from the date of this deed.

2    APPOINTMENT OF NEW TRUSTEE

The Appointor in exercise of her powers contained in clause 9.1 of the Deed and in the exercise of every other power enabling the Appointor in that behalf hereby appoints the New Trustee to the office of trustee of the Trust and the New Trustee hereby consents to act as trustee of the Trust and undertakes to be bound by the terms of the Deed as and from the date of this deed.

3    TRANSFER OF TRUST FUND

3.1    Outgoing Trustee and New Trustee

The New Trustee hereby agrees to do forthwith all such acts, matters and things and to sign, execute and deliver all such documents as may be necessary or desirable to vest the legal estate of the trust fund of the Trust in the New Trustee solely and exclusively.

3.2    Appointor

The Appointor hereby declares and directs that all the estate and interest of the Outgoing Trustee in those parts of the Trust to which section 16 of the Trustee Act 1936 (SA) (as amended) extends, shall henceforth vest in the New Trustee upon the trusts affecting the same respectively by virtue of the Deed as amended otherwise.

(Emphasis in the original)

364    It was common ground that the Removal Deed had taken effect on 4 October 2018, even though it was not dated by Brenda and even though a copy of it was not provided by the respondents to FPH until 24 January 2019. I accept Dr Hamilton’s evidence about when he received a copy of the Removal Deed, noting, amongst other things, that in the Statement of Claim filed at the commencement of the proceedings on 18 December 2018, the applicants had pleaded that FPH was the trustee of the PRT.

365    The applicants seek a declaration that the Removal Deed is a conveyance made with intent to defraud creditors within the meaning of s 86 of the LoP Act and is void, together with such ancillary orders as are necessary to give effect to the declaration. They contend in [110.13] of the 5SC that the conveyance was made with the intention of defrauding FPH and Dr Hamilton by preventing them from taking action in relation to the monies owed to FPH in respect of the deposit on Lot 2 of $30,000, the contribution of $59,500 to the settlement on Lot 2, and the other payments it made to meet the Lot 2 purchase price of $750,000 and otherwise to “prejudice any attempted recovery of those sums against the assets of the [PRT]”.

Section 86 and relevant principles

366    Section 86 of the LoP Act provides:

86 – Voluntary conveyances to defraud creditors

(1)    Every conveyance of property made with intent to defraud creditors shall be voidable at the instance of the party prejudiced thereby.

(2)    This section shall not extend to any estate or interest in property conveyed for valuable consideration and in good faith or upon good consideration and in good faith to any person not having, at the time of the conveyance, notice of the intent to defraud creditors.

367    FPH accepts that the effect of s 86(1), even if an intention to defraud is established, will be that the Removal Deed will cease to have effect only upon the Court making an order that it is void: Green v Schneller [2002] NSWSC 671 at [25]-[27] and the authorities cited therein.

368    It is established that s 86 and its counterparts should be given a liberal construction in effecting their purpose of suppressing fraud: Marcolongo v Chen [2011] HCA 3; (2011) 242 CLR 546 at [20]. Some other matters of present relevance concerning the application of s 86 and its counterparts are also settled:

(a)    an intention to defraud creditors may be established by proof of an intention to hinder, delay or defeat them and in that sense that the actor acted dishonestly: Marcolongo v Chen at [32], [56];

(b)    the existence of the necessary intention is a question of fact which, in the absence of direct evidence, may be inferred from the surrounding circumstances as when, for example, the conveyance is voluntary or made for only nominal consideration: Marcolongo v Chen at [26];

(c)    an intention to defraud creditors may also be inferred in the absence of direct evidence of that intention, when the outcome is the necessary consequence of the action (Marcolongo v Chen at [25]), or when it results in a subtraction of the assets which, but for the impugned disposition, would be available to meet the claims of creditors: Cannane v J Cannane Pty Ltd (in liq) [1998] HCA 26; (1998) 192 CLR 557 at [12] (Brennan and McHugh JJ);

(d)    it is unnecessary for applicants asserting that a conveyance is void to show that the actor wanted them to suffer loss or even that he or she had a purpose of causing loss; and

(e)    the intent to defraud need not be the sole, or even the predominant, intent of the actor: Marcolongo v Chen at [57].

Is FPH a creditor to whom s 86 may apply?

369    The respondents submitted that there could not be an intention to defraud creditors of the kind contemplated by s 86 if the putative object of the intention in question is not a creditor.

370    The respondents contend that, at 4 October 2018, FPH was not a creditor in relation to the PRT. That is so, the respondents submitted, because a trust has no separate legal identity and a trustee cannot be a creditor of itself. Instead, a trustee has a right of indemnity in respect of expenses properly incurred as trustee of the trust and that right is secured by a lien over the trust assets: Trim Perfect Australia v Albrook Constructions [2006] NSWSC 153 at [20] cited in Australian Securities and Investments Commission v Letten (No 17) [2011] FCA 1420, (2011) 286 ALR 346 at [13]. In Re Goldsmid ex parte Taylor (1886) 18 QBD 295 at 301, Lindley LJ (citing authority) said that “a cestui que trust is not a creditor of his trustee, nor is a trustee a creditor of his co-trustee”.

371    The respondents emphasised the proprietary nature of the trustee’s entitlement to indemnity: Chief Commissioner of Stamp Duties (NSW) v Buckle [1998] HCA 4, (1998) 192 CLR 226 at [47]-[50]; Bruton Holdings Pty Ltd v Commissioner of Taxation (Cth) [2009] HCA 32, (2009) 239 CLR 346 at [43]; Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20, (2019) 268 CLR 524 at [29]-[33], [80]-[84], [128]-[139]. They submitted that a contractual creditor does not have a proprietary claim and that this indicated that a trustee could not be a creditor for the purpose of s 86.

372    I consider this contention of the respondents should not be accepted.

373    First, the term “creditor” in s 86 is not a word of fixed and rigid meaning: Gibb v Lombank Scotland Ltd [1962] SLT 288 at 290. The amplitude of the term is evident from the reasons of Young JA in Chen v Marcolongo [2009] NSWCA 326, (2009) 260 ALR 353 at [179]-[189]. I do not understand this part of the reasons in Chen v Marcolongo to have been disturbed on appeal. The term includes present, contingent, future and prospective creditors: Chen v Marcolongo at [13]; Hall v Poolman [2007] NSWSC 1330, (2007) 215 FLR 243 at [536]. It is not confined to creditors whose entitlements arise from contract. Those who have tortious claims may be a creditor. In the context of, and having regard to the evident purpose of s 86 of the LoP Act, the term “creditor” is capable of encompassing a range of persons who are, or may be, owed money, the recovery of which may be frustrated by the conveyance of property.

374    Secondly, the respondents’ submission assumes, incorrectly, that it is only FPH in its capacity as trustee of the PRT which is the subject of the applicants’ allegations. As [110.13] of the 5SC indicates, the applicants allege an intention by Steven to defraud both FPH and Dr Hamilton. The latter was at least a prospective creditor of FPH given his provision of a personal guarantee to NAB of FPH’s obligations. Steven knew of the loans taken out by FPH and knew that Dr Hamilton had provided a personal guarantee.

375    This submission of the respondents is rejected.

Did the Removal Deed constitute a “conveyance”?

376    The respondents contended that the change of trustee had not had any effect on FPH’s right of indemnity. That right was the same after FPH’s removal as trustee as it had been beforehand, i.e, its “property rights were unaffected”. Accordingly, so the respondents submitted, the Removal Deed did not constitute a “conveyance”.

377    Counsel for the respondents referred to authorities bearing on the issue of whether an outgoing trustee is entitled to retain trust property from an incoming trustee in order to give effect to its right to indemnity: Apostolou v VA Corporation of Australia Pty Ltd [2010] FCA 64, (2010) 77 ACSR 84; and Lemery Holdings Pty Ltd v Reliance Financial Services Pty Ltd [2008] NSWSC 1344, (2008) 74 NSWLR 550 but those principles are not directly applicable presently.

378    The respondents are correct in contending that, as a matter of law, FPH’s right of indemnity was preserved. In fact, the Removal Deed made express provision for this in cl 5:

5    INDEMNITY

Nothing expressed or implied in this deed shall prejudice the right of [FPH] to indemnity from the trust fund of the Trust for costs and expenses incurred by [FPH] in the proper administration of the Trust on or before the execution of this deed.

379    However, the question of whether the Removal Deed was a conveyance is to be resolved by reference to the LoP Act itself. The term “conveyance” is defined in s 7:

conveyance includes a mortgage, charge, lease, assent, vesting declaration, disclaimer, release, surrender, extinguishment and every other assurance of property or of an interest therein by any instrument, except a will.

(Emphasis added)

380    On its face, cl 3.2 of the Removal Deed set out above comprises a “vesting declaration” within the meaning of the s 7 definition.

381    Clause 3.1 gives effect to cl 3.2 by requiring the New Trustee to carry out the actions necessary or desirable to vest the legal estate of the trust fund of the Trust in the New Trustee.

382    However, the vesting effect of cl 3.2 in the Removal Deed is governed by s 16 of the Trustee Act 1936 (SA), which provides (relevantly):

16 – Vesting of trust property in new or continuing trustees

(1)    Where a deed by which a new trustee is appointed to perform any trust contains a declaration by the appointor to the effect that any estate or interest in any land, subject to the trust, or in any chattel so subject, or the right to recover and receive any debt or other thing in action so subject, shall vest in the person or persons who, by virtue of the deed, become and are the trustee or trustees for performing the trust, that declaration shall, without any conveyance or assignment, operate to vest in that person or those persons, as joint tenants if more than one, and for the purposes of the trust, that estate, interest, or right.

(2)    Where a deed under the last preceding section, by which a retiring trustee is discharged under this Act, contains such a declaration as is in this section mentioned by the retiring and continuing trustees and by the other person (if any) empowered to appoint trustees, that declaration shall, without any conveyance or assignment, operate to vest in the continuing trustees alone, as joint tenants and for the purposes of the trust, the estate, interest, or right to which the declaration relates.

(3)    This section does not extend to land under the Real Property Act 1886 or to land conveyed by way of mortgage for securing money subject to the trust, or to any such share stock, annuity, or property as is only transferable in books kept by a company or other body, or in manner directed by or under Act of Parliament.

(4)    For purposes of registration of the deed in the General Registry Office the person or persons making the declaration shall be deemed the conveying party or parties, and the deed shall be deemed a conveyance made by him or them under a power conferred by this Act.

…

(Emphasis added)

383    Section 16(1) means that Brenda’s declaration in cl 3.2 had the effect that the property of the PRT vested in Ridge Estate. However, s 16(3), coupled with the qualification in cl 3.2 concerning it, means that there has been no vesting in, and accordingly, no conveyance, of Lot 2 to Ridge Estate. But the assets of the PRT were not confined to Lot 2. It had assets in the form of chattels and in the form of choses in action or, at least, claimed choses in action. The combined effect of the Removal Deed of cl 3.2 and s 16(1) of the Trustee Act is that there was a vesting of those other assets of the PRT, sufficient to satisfy the requirements for a conveyance as defined in s 7 of the LoP Act. Accordingly, this defence does not avail the respondents.

384    This makes it necessary to address the applicants’ claim that the Removal Deed was made by Brenda within intent to defraud creditors in the sense set out earlier. Brenda did not give evidence in the trial, even though she was present in the Courtroom for much of the trial.

The circumstances in which the Removal Deed was made

385    I make the following findings as to the circumstances in which Brenda executed the Removal Deed.

386    By late September 2018, the breakdown of the relationship between Steven and Dr Hamilton was reaching its final stages. Dr Hamilton called a shareholders’ meeting of FPH for 2 October 2018, to be conducted by a conference call. The agenda which Dr Hamilton circulated was expressed in general terms but included “Fairfield progress” and “Future directions”. It was evident that a general review of FPH was intended. The time fixed by Dr Hamilton for the meeting was inconvenient to Steven as he was then on holidays in Japan and he sought a deferral of the meeting. Dr Hamilton refused to do so, pointing out that he expected the meeting to take about 30 minutes and that he regarded it as reasonable for Steven to participate in a conference call during his holidays.

387    The meeting of the shareholders of FPH proceeded on 2 October 2018 in Steven’s absence. Dr Hamilton and Messrs King, Dyer and Peacock participated and, amongst other things, passed the following resolutions:

Resolution: All agree that FPH directs the director of FPH No 1 to call in its loan to [PRT] with a view to reducing debt in FPH No 1 and with a view to providing replacement of remaining capital in income generating property.

Resolution: All agree as due to the cash position of the company that all monthly consulting fees and payments be stopped or no longer accounted for as of today and that all future fees are project based fees.

388    Steven had sought legal advice before 1 October 2018 by retaining Matthew Allan of WRP Legal & Advisory in Adelaide. On 1 October 2018 at 11.37 pm, Steven sent an email to Mr Allan providing him with agenda for the FPH shareholders’ meeting and saying:

Andrew is up to no good. Good thing we put Ridge Estate Pty Ltd in place as the trustee all those months ago.

389    Steven acknowledged in his evidence that, in telling Mr Allan that Dr Hamilton was “up to no good”, he was referring to his concern that Dr Hamilton may sell Lot 2, the Porsches and the equipment securing the Equipment Loan without his agreement, and that he did not know what Dr Hamilton “was up to” as he “kept on changing the ball game”.

390    Counsel for the respondents objected, on the grounds of legal professional privilege, to Steven being asked about his instructions to Mr Allan with respect to Ridge Estate but it can be inferred, and I do infer, that Steven and Mr Allan had previously discussed the replacement of FPH as trustee of the PRT by Ridge Estate. That inference is confirmed by Mr Allan’s action on 2 October 2018 at 12.30 pm in sending a draft removal deed to Steven “for discussion”.

391    Steven said that his intention in asking Mr Allan to provide a Deed of Removal was to prevent Dr Hamilton from selling Lot 2 and the plant and equipment securing the Equipment Loan without his consent and that he “wanted to take back our asset that was in our family trust”. He also said that he had discussed the change of trustee with his parents before instructing Mr Allan to prepare the Removal Deed. Steven acknowledged that he had not informed Dr Hamilton of his intention to remove FPH as trustee of the PRT before giving Mr Allan the instructions and gave the following explanation for not having done so:

I didn’t feel that he was acting in the best interests and he wasn’t doing his fiduciary duties as trustee for the trust.

392    On 2 October 2018 at 2.11 pm, Steven forwarded the draft Removal Deed to Philip with the direction “please return to me”. Philip responded at 12.55 pm on 4 October 2018, pointing out errors in the spelling of Brenda’s name and in her address but indicating his willingness to have Brenda sign the document if Steven was not concerned by those errors. Steven responded by email at 1.11 pm on 4 October 2018 telling Philip “not a problem at this stage”. Later the same day, at 3.58 pm, Philip sent to Steven the Removal Deed executed and witnessed by Brenda and signed by himself on behalf of Ridge Estate.

393    Steven said, and I am willing to accept, that he had discussed the execution of the Removal Deed with his father by telephone. I think it likely that oral discussions between Steven and Philip in relation to the execution of the Removal Deed would have been limited, given that Steven was then in Japan.

394    Dr Hamilton, who prepared the Minutes of the meeting on 2 October 2018, circulated them to the shareholders, including Steven, on 10 October 2018. The evidence did not indicate whether Steven had been informed of the two resolutions set out above before receiving the Minutes. I infer that he may not have as, a little over an hour after receiving the Minutes, he forwarded a copy to Matthew Allan saying:

Andrew is a real problem, I need to stop him.

I think it likely that, had Steven been informed of these resolutions earlier, he would have informed Mr Allan sooner, and there is no evidence that he did so.

Was the Removal Deed made with the intention of defrauding creditors?

395    Counsel for the applicants accepted that, strictly speaking, the relevant intention for the purpose of s 86(1) is that of Brenda as she, in her capacity as Appointor of the PRT, executed the Removal Deed.

396    However, for the reasons which follow, I accept counsel’s submission that Steven’s intention is the relevant intention: cf Marcolongo v Chen at [64].

397    Although there is no direct evidence that this is so, it is appropriate to infer (and I do infer) that Philip informed Brenda of Steven’s direction that the Removal Deed be executed. I am also satisfied that, in executing the Removal Deed, Philip and Brenda proceeded in accordance with Steven’s directions. That that is so is evident from it being Steven’s actions which led to the preparation and provision of the Removal Deed to his parents. It is also particularly evident in Steven’s direction that the errors which Philip had identified in the Removal Deed were “not a problem”, with the inference that the Deed should be executed in its then form. There is also no indication that Brenda exercised any independent judgment or decision-making in relation to her execution of the Removal Deed provided to her.

398    Steven said that his purpose in asking Brenda to sign the Removal Deed was to “get in control of our land again”, to “slow the process” and to prevent creditors of PRT being able to realise their debts against the assets of the PRT without him having “a say so”. He also acknowledged that it had not been Brenda’s decision to execute the Deed. He said that his intention in promulgating the Removal Deed had been to stop Dr Hamilton from taking any action to recover any debts of which he was guarantor and that he had not wanted FPH to call in its loan “at the irrational pace that Andrew Hamilton did things”.

399    Steven admitted that he had not told Dr Hamilton that FPH had been removed as trustee of the PRT and said that he had “wanted to keep it as an ace up [his] sleeve in case [Dr Hamilton] went and did something that [he] didn’t agree with as trustee of the PRT”. Later, Steven said that he had not told Dr Hamilton of the removal of FPH as trustee because “I was new to the process and following direction and instruction from Matthew Allan”. I considered this last piece of evidence of Steven’s to be implausible and do not accept it. In my view, it was Steven himself who decided not to disclose the Removal Deed to Dr Hamilton.

400     Steven acknowledged that he had known that, by removing FPH as trustee, it would not be able to exercise “self-help”, i.e, by exercising a power of sale of the Trust assets, in relation to the debts owed to FPH.

401    These admissions of Steven make inevitable a finding that Steven had Brenda execute the Removal Deed with the requisite intention of defrauding creditors of the PRT, FPH and Dr Hamilton, i.e, with the intention at least of hindering or delaying them realizing their entitlements. That was the very purpose of FPH’s removal as trustee. No other purpose has been advanced.

402    FPH is a person “prejudiced by” the fraudulent conveyance entitled to bring a claim under s 86. There was no submission to the contrary.

403    The applicants have accordingly established the matters alleged in [110] of the 5SC FPH’s entitlement to the declaration sought in [14] of the Further Amended Originating Application.

FPH’s claim to indemnity

404    Although the declaration that the Removal Deed could make it unnecessary to determine FPH’s claim to indemnity, I consider that it is desirable for the Court to address it with a view to declaring FPH’s entitlement and thereby reducing the prospect of further disputation. FPH sought a declaration that it had incurred expenditure, particularised in Annexure J to the 5SC, in its capacity as trustee of the PRT and that it is entitled to indemnity for the total sum of $479,295.45.

405    It is not necessary to set out in these reasons the principles relating to a trustee’s right of indemnity. It is sufficient for this purpose to refer to the authorities mentioned earlier, including Trim Perfect, Commission of Stamp Duties v Buckle, Bruton Holdings, Carter Holt Harvey, Lemery Holdings and to ASIC v Letten (No 17) at [11]-[22].

406    The liabilities incurred by FPH in relation to its ownership of Lot 2 as trustee of the PRT and claimed in these proceedings fall into a number of categories. It is appropriate to identify some of them before moving to the assessment of FPH’s entitlement to indemnity.

The deposit and the funds lent at settlement

407    As already indicated, FPH provided the $30,000 for the deposit (borrowed from FPH No 1) and contributed an additional $59,500 at settlement, totalling $89,500. The respondents accept that FPH is entitled to recoup the $89,500 which it contributed in these ways to the purchase of Lot 2.

Repayments on the NAB home loan

408    FPH was obliged to make monthly repayments of principal and interest of $3,074.89. It made the first of these payments on 9 May 2016 and continued monthly payments at that rate until 8 April 2020. Commencing on 8 May 2020, the monthly repayments reduced to $2,631.83 and continued at that rate until 8 March 2021. FPH then made three monthly instalments of $2,632.48 before the remaining indebtedness of $472,745.46 to NAB was discharged on 30 June 2021 on the sale of Lot 2.

409    The total amount paid by FPH as trustee for PRT on the NAB first mortgage was accordingly:

The NAB Equipment Loan

410    As indicated, FPH borrowed $182,130 by way of loan secured over equipment transferred to it by Ridge Estate. The parties referred to this as the Equipment Loan.

411    The Equipment Loan was for a term of three years and FPH was obliged to make monthly instalment payments of principal and interest amounting to $3,632.13. The monthly instalments were paid by direct debit to the Everyday Account established by FPH in name of the PRT with NAB. The first payment was made on 8 April 2016, and the payments at that rate continued until the payment made on 10 December 2018. Thereafter, FPH paid instalments of varying amounts in December 2018 to March 2019, totalling $19,125.88.

412    Two lump sum payments were made: $40,489.69 on 11 February 2019 (which I infer was part of the proceeds of the sale of the equipment securing the loan) and $23,852 paid on 8 April 2019 which discharged the Equipment Loan.

413    The means that FPH has proven that it made the following payments as trustee for the PRT, with respect to the Equipment Loan:

414    As part of the arrangement by which FPH as trustee for the PRT acquired Lot 2, Dr Hamilton and Steven agreed that the monthly consultancy fee of $15,000 plus GST being paid by FPH to Ridge Estate on account of Steven’s services, would be reduced to $8,292.98 plus GST ($9,122.28). The difference ($6,708) (rounded off) was the aggregate of the monthly repayments on the mortgage loan and the Equipment Loan. The effect was that moneys which would otherwise have been paid to Ridge Estate were, with Steven’s agreement, diverted to repayment of the mortgage loan and the Equipment Loan. Dr Hamilton agreed that that was the position. He said “the arrangement was to reduce the cash but [Steven’s] overall compensation would not be affected”. He claimed that there had not been an adjustment in Steven’s total remuneration because “we ultimately adjusted for the underpayment of cash”.

415    The effect is that, until July 2017 when (subject to one additional payment in January 2018) the consultancy payments ceased, it was Ridge Estate and not FPH which bore the burden of the monthly mortgage instalments and loan repayments made to NAB. FPH’s entitlement must therefore be reduced accordingly.

Assessment of the claim for indemnity

416    The total amount ultimately claimed by FPH by way of indemnity is $479,295.45. This includes the sum of $89,500 which FPH contributed to the purchase price of Lot 2. There are, however, some deductions to be made from that sum. Before addressing those deductions, it is appropriate to say something about the “Whale Beach Loan”.

The Whale Beach Loan

417    For reasons which will become apparent, the circumstances regarding the Whale Beach Loan are unclear.

418    It seems that in January 2018, FPH purchased a property at Whale Beach. The Court was not provided with the contract for the purchase of the Whale Beach property. However, other documents indicate that the purchase price was $3.05 million, that a deposit of $305,000 was paid, and that settlement occurred on 1 March 2018. There are some documents which indicate that FPH purchased the Whale Beach property in its capacity as trustee of the PRT. Steven had some involvement in arranging the purchase but the precise nature and extent of that involvement was not made clear.

419    In any event, FHP borrowed $122,000 from NAB, secured by a first mortgage over Lot 2 and a personal guarantee by Dr Hamilton. This was an interest only loan.

420    The initial iterations of the applicants’ Originating Application and Statement of Claim made no reference to the acquisition of the Whale Beach property or to the Whale Beach Loan. In particular, FPH did not seek any relief in respect of the Whale Beach Loan.

421    On 20 March 2020, acting on the minutes for consent orders provided by the parties, the Court granted the applicants leave to amend the Originating Application and the Statement of Claim so as to include a claim with respect to Whale Beach. However, the applicants did not exercise that leave. Even when the applicants secured an adjournment of the commencement of the trial on 31 May 2021, they did not apply for, or even foreshadow, an application for leave to amend to raise a claim with respect to the Whale Beach property or Loan.

422    However, on 26 August 2021 (19 days before the trial was to commence on 14 September 2021), the applicants filed an application interlocutory application seeking leave to amend so as, amongst other things, to raise a claim with respect to the Whale Beach Loan. I heard that interlocutory application on 2 September 2021 and, for reasons which I gave at the time, refused the application with respect to the Whale Beach Loan. My reasons included the applicants’ delay in making the application, the absence of explanation for the leave granted on 20 March 2020 not having been exercised, and the prejudice to the respondents if the late amendment was allowed. Dr Hamilton had not referred to the Whale Beach Loan in the body of either of his principal affidavit or in his reply affidavit.

423    At the trial, a number of matters emerged with respect to the applicants’ conduct in the litigation in relation to the Whale Beach Loan. These matters did not reflect well on Dr Hamilton and his reliability.

424    First, it became apparent that the evidence which the applicants had provided to the Court in support of their application for the order for judicial sale which was made on 26 March 2021, had wrongly characterised the Whale Beach Loan as the Equipment Loan taken out in connection with the purchase of Lot 2, even though the latter had been wholly discharged on 8 April 2019. The Court was misled in that respect.

425    Secondly, Dr Hamilton had in March 2019 purported to respond to the request of the respondents’ then solicitors that he provide the bank statements for the accounts maintained by FPH as trustee of the PRT, but he did not provide any statements relating to the Whale Beach Loan. Moreover, the applicants’ solicitor swore an affidavit on 15 March 2019, the details of which he deposed Dr Hamilton had confirmed to be correct, deposing to the bank accounts and bank statements in relation to the PRT and to the loans to be paid out on the sale of Lot 2, without any reference to the Whale Beach Loan. I observe that that affidavit was sworn in response to an affidavit from the applicants’ then solicitor of 13 March 2019 in which that solicitor had sought from the applicants a copy of all loan agreements entered into by FPH in its capacity as trustee of the PRT, as well as details of the debt proposed to be discharged on the sale of the Lot 2. In responding to that affidavit, the applicants’ solicitor made no reference to the Whale Beach Loan even though it was secured over Lot 2. It is difficult to understand how Dr Hamilton could have given instructions to that effect, especially given his acknowledgement that he had known at the time that the Whale Beach Loan was to be discharged when Lot 2 was sold.

426    Thirdly, Dr Hamilton swore his own affidavit on 3 September 2020 in support of the application for an order for judicial sale of Lot 2. Although Dr Hamilton annexed bank statements relating to FPH’s debt to NAB in respect of Lot 2, he did not include any relating to the Whale Beach Loan. This was despite his acknowledgement in the cross-examination at trial that he had thought at the time that the Whale Beach Loan was recoverable from the trust assets and that the proceeds from the sale of Lot 2 would be used to discharge the Whale Beach Loan. Dr Hamilton attributed his omission to refer to the Whale Beach Loan and his omission to provide the Whale Beach Loan bank statements to “oversight”.

427    Fourthly, an affidavit of Philip of 7 April 2021 made plain the concern of the respondents that the loan of $122,000 secured over Lot 2 and the assets of the PRT had not been properly incurred.

428    Fifthly, although my reasons on the Judicial Sale Judgment made plain my reliance on the statements of the applicants’ solicitor that the loan of $122,000 was the Equipment Loan taken out in connection with the purchase of Lot 2, Dr Hamilton took no steps after judgment delivery to correct the position or the Court’s misapprehension.

429    Lastly, the documents relating to the Whale Beach Loan were produced by Dr Hamilton only during the trial and in response to a call for production. Dr Hamilton’s attempts to explain why the documents had not been discovered earlier were confused, incoherent, and unconvincing.

430    The respondents submitted that these matters indicated that Dr Hamilton had manipulated the information provided to the respondents and to the Court so as to be able to use proceeds from the sale of Lot 2 to discharge the Whale Beach Loan without having to prove an entitlement to do so. There was undoubtedly a proper basis on which the respondents could make that serious allegation.

431    I have decided, however, that this is not the correct explanation. Instead, I consider that it is just another manifestation of the muddled headedness and foolishness of Dr Hamilton evident in so much of his conduct which is the subject of these proceedings. Had I made a higher estimation of Dr Hamilton’s astuteness, my conclusion may have been different. I have reached my conclusion having regard in particular to the fact that the Whale Beach Loan had not been kept wholly concealed, as the solicitors must have discussed it at least in part when providing the consent minutes for the orders made on 20 March 2020. Moreover, Steven’s involvement in the purchase of the Whale Beach property makes it probable that he was aware of the financing arrangements for the purchase. Further again, I consider that Dr Hamilton could not reasonably have considered that there was a prospect of keeping concealed the use of the sale proceeds to discharge the Whale Beach Loan on the sale of Lot 2 pursuant to the judicial sale order.

432    Nevertheless, my assessment of Dr Hamilton’s conduct and evidence in relation to the Whale Beach Loan is one of the matters which I have taken into account in my assessment of his reliability as a witness more generally.

Initial deductions from the starting point of $479,295.45

433    The applicants agree that there should be two deductions from the starting point of $479,295.45:

(a)    the interest claimed on the Whale Beach Loan of $21,175.82. Given that FPH did not seek (apart from its late and unsuccessful application to amend) to establish that the Whale Beach Loan was a proper expense incurred by FPH as trustee of the PRT, this amount must be deducted; and

(b)    amounts recognised as incorrectly claimed: $13,600.

434    Accordingly, the applicants’ revised starting point is $444,519.57.

The respondents’ contentions for further deductions

435    The respondents contended that further amounts should be deducted in the assessment of FPH’s claim to indemnity from the revised starting point of $444,519.57.

Amounts representing payments of the consultancy fee

436    As previously noted, the parties agreed that the monthly payment by FPH to Ridge Estate by way of consultancy fees should be reduced by the amount of the instalments paid by FPH and FPH No 1 on the mortgage loan and on the Equipment Loan taken out in connection with the purchase of Lot 2. The burden of these payments was accordingly borne by Ridge Estate, and not FPH. I agree therefore that there should be a reduction from the adjusted starting point for the amounts of the loan instalments paid from April 2016 until July 2017, when FPH ceased making payment of the consultancy fees.

437    The respondents submitted that, from August 2017, the entire amount of $15,000 per month should be applied against the trust expenses. I do not accept that submission. There is no evidence of an agreement between Dr Hamilton and Steven to that effect. Both the evidence in chief of Steven at [151]-[152] of the affidavit containing his evidence his chief and the content of the cross-examination of Dr Hamilton on the topic, suggest that the agreement for offsetting applied only during the period when the consultancy fees were actually being paid.

438    For similar reasons, and subject to one qualification, the evidence does not support the view that the aggregate of the loan instalments paid after August 2017 should be regarded as a form of partial payment of the consultancy fee. The qualification is that FPH acknowledged that its payment on 1 January 2018 of $9,122.88 was a payment of the consultancy fee. That being so, it is appropriate to regard that payment as reflecting the same arrangement as had applied until July 2017.

439    The effect is that FPH is not entitled as part of its claim to indemnity to the aggregate of the monthly instalment payments on the mortgage and on the Equipment Loan for the period between April 2016 and August 2017 and in January 2018. That is:

$6,707.02 ($3,074.89 + $3,632.13) x 17 months = $114,019.32.

440    Account was taken by Dr Hamilton of at least some of the amounts due to Ridge Estate after August 2017 in his calculation of the net amount of the claim for payment of the Ridge Estate loan to which I referred earlier. To the extent that the amounts then allowed by Dr Hamilton to the credit of Ridge Estate was not its full entitlement, such a claim is foreclosed to Ridge Estate by the dismissal of that part of the respondents’ cross-claim – see the Judicial Sale Judgment at [133].

441    In the final submissions, counsel for the respondents sought to resurrect this claim by submitting that Ridge Estate were nevertheless entitled to setoff in respect of this entitlement. When asked to identify the pleading on which he relied for the setoff, counsel referred to [83A] of the Amended Defence filed on 6 September 2021. As I indicated to counsel at the time, [83A] cannot reasonably be regarded as a plea of a setoff. The claim is in any event foreclosed by the dismissal of that part of the respondents’ cross-claim in the Judicial Sale Judgment.

Claims not supported by documents

442    The respondents have identified $5,646.03 claimed by FPH as part of the indemnity but which are not supported by primary documents. The figure of $5,646.03 is said to be made up of amounts paid for land tax, council rates, water rates, account and other bank fees and some miscellaneous payments.

443    Although the applicants have not provided the primary documents, I consider that FPH should be allowed the amounts shown in the bank statements as having been paid for land tax, council rates and water rates. Expenses of these kinds are an ordinary incident of land ownership and it is be expected that FPH did incur them. However, the absence of primary documents indicates that the remaining expenses should be disallowed. They total $903.48.

Amounts said to be unrelated to the proper administration of the Piney Ridge Trust

444    The respondents objected to $6,743 being the aggregate of amounts paid by FPH to a firm of accountants for the preparation of financial statements relating to the PRT. The amounts are:

    9 September 2018 – $2,475;

    1 March 2020 – $209;

    6 April 2021 – $209; and

    9 May 2021 – $3,850.

445    I consider that FPH should be allowed the whole of these amounts. The fee on 9 September 2018 was paid and incurred before the purported removal of FPH as trustee of the PRT. In relation to the latter amounts, the respondents’ objection is that there was no necessity for FPH, as bare trustee, to have financial statements prepared. There are two answers to that contention. First, I have determined that the Removal Deed is void. Secondly, and in any event, by a letter dated 6 March 2019, the respondents’ solicitors impliedly requested the provision of finalised accounts for the PRT. It was accordingly reasonable for FPH to incur the expenses.

Judicial sale order costs

446    The applicants have claimed the following costs in connection with the sale of Lot 2 pursuant to the Court’s judicial sale order:

447    The judicial sale order included the following order with respect to the expenses of the sale:

[T]he First Applicant shall, on settlement of the sale of the Lot 2 property, pay the proceeds of sale in the following manner:

(i)    …

(ii)    secondly, its costs and expenses incurred in relation to the sale of the Lot 2 property, such costs and expenses not to include its legal costs in making the application to this Court; and

(iii)    …

448    Accordingly, these costs could have been paid by FPH from the sale proceeds before they were paid into Court. I agree with the respondents’ submission that these amounts are properly characterised as sale costs rather than costs in respects of which FPH is entitled to an indemnity.

Amount contributed by Ridge Estate

449    Ridge Estate did make one contribution of $8,300 to the bank account of the PRT which was used to meet the expenses of the PRT. The applicants do not appear to have taken that into account in their calculation of their starting point. This amount should be deducted.

The $122,000 applied to discharge the Whale Beach Loan

450    Counsel for the respondents submitted that account should be taken of Dr Hamilton’s application of part of the proceeds of the sale of Lot 2 to discharge the Whale Beach Loan, given that FPH has not vindicated the claim that the Whale Beach property was an asset of the PRT. He referred to the principle, sometimes referred to as the “clean accounts rule”, which obliges a trustee who owes money to a trust to satisfy that liability before any distribution of trust funds pursuant to a right, such as the right of indemnity, is exercised: Lane v Deputy Commissioner of Taxation [2017] FCA 953; (2017) 243 FCR 46 at [54]-[57]. Counsel submitted that effect should be given to this principle by deducting the amount of $122,000 from FPH’s adjusted starting point.

451    I agree that account will have to be taken of FPH’s conduct in relation to the $122,000 but do not consider it appropriate to do so in the manner proposed by counsel. It would give rise to further difficulties, including as to the identification of the person to whom the monies should be paid, given the declaration that the removal of FPH as trustee of the PRT is void. I will return to the manner in which the account is to be made at the conclusion of these reasons.

Summary of deductions from the adjusted starting point

452    The effect is that the following amounts should be deducted from the applicants’ adjusted starting point of $444,519.57:

453    The consequence is that, subject to an allowance being made for the sum of $122,000 used to discharge the Whale Beach Loan, FPH has proven an entitlement to indemnity of $314,741.95. FPH has not suggested that it is entitled to pre-judgment interest on this sum.

454    It is doubtful that FPH has a claim to interest on the amount of its entitlement to indemnity – see Elsinora Global Ltd v Commissioner of Taxation [2006] FCAFC 156; (2006) 155 FCR 413, particularly the discussion of Young J concerning the power to award interest, at [36]. In any event, I note that the applicants did not seek an order for interest on the indemnity amount in the document they provided in response to the Court’s request for orders which would be appropriate in the event that they were successful. Accordingly, I make no allowance for interest.

The loan claim

455    FPH No 1 claims the repayment of cash or EFT advances it made to Ridge Estate in the form of loans in the period between 27 July 2015 and 8 August 2018. There have been different articulations of the amounts sought to be recovered by FPH No 1 as loans to Ridge Estate. In the 5SC on which the applicants proceeded at trial, the amount claimed is $82,321.70. This is particularised in Annexure I to the 5SC. The applicants pleaded that this was the balance left after deducting from the total amount said to have been advanced by loan ($240,934.60) the sum of $158,612.90 which FPH No 1 acknowledged to be outstanding to Steven for “project management fees” in respect of his engagement at the Yennora Property.

456    The respondents deny that FPH No 1 advanced the amounts as loans. They contend that the monies which FPH No 1 now seeks to recover were repayments for expenses which Ridge Estate had occurred in the conduct of the business of FPH and FPH No 1.

Was there a loan account between FPH No 1 and Ridge Estate?

457    Dr Hamilton’s evidence regarding the loans and advances on which the applicants rely was less than satisfactory. In fact, his first affidavit did not contain any evidence at all supporting the loan claim. In the second affidavit, Dr Hamilton said only:

[107]    In relation to paragraph 261 to 264 of Steven's affidavit I say:

[107.01]    During the period from March 2015 to October 2018, at the request of Steven Fairfield No 1 made cash advances in the form of loans to Ridge Estate, such advances being payable on demand.

[107.2]    These cash advances came about following a request I received from Steven. Steven told me he needed money for various domestic purposes. I agreed to the advances being made by way of a loan account on the basis that Steven would repay the monies plus interest at the rate of 6%. Steven agreed to this arrangement.

[107.3]    I would provide Steven with details of his loan account from time to time. For example, on 24 May 2018 I sent an email to Steven as a result of a request made by him for details of the current loan accounts for Ridge Estate and Piney Ridge Trust.

[107.4]    On 13 August 2015 Steven sent me an email in which he referred to and confirmed the existence of the loan account.

[107.5]    I have set out details of the amounts lent or advanced to Ridge Estate at the request of Steven and that summary is included in the tender book.

(Footnotes omitted)

458    In the written closing submissions, counsel for the applicants submitted that the Tender Book of documents received into evidence at the trial “features ongoing contemporaneous emails between [Dr] Hamilton and Steven regarding the loan balance”. Counsel then particularised the following emails:

13 August 2015:    In an email regarding invoices for expenses, Steven appeared to acknowledge the existence of a loan account:

The cost(s) I have had on the Fairfield side are about $60K but that will come out in the wash in the loan account down the track.

20 January 2017:    Steven said, amongst other things:

I need you to do another one of your forward payments of $11K to Ridge Estate please”.

23 October 2017:    Steven told Dr Hamilton:

Ridge Estate owes FPH (in expense reimbursements, cattle etc) - $161,433.98.

24 October 2017:    In an emails Steven asked Dr Hamilton, amongst other things:

Where is the loan account from Ridge Estate?

24 May 2018:    By this time the relationship between Dr Hamilton and Steven was souring. Dr Hamilton provided Steven with a statement containing the heading “FPH No 1 Loan to Ridge Estate Pty Ltd”. This statement related to the period 27 July 2017 to 26 June 2018. The status of the document is unclear as it seems to comprise in the main details of finance and lease payments on the Land Rovers and Porsche vehicles which FPH had provided for the use of Steven. This seemed to amount to a retrospective attempt by Dr Hamilton to have Ridge Estate bear the cost of the provision of those vehicles. He also included a claim for interest at the rate of 6%. FPH No 1 had first asserted an entitlement to payment of interest on the loan account in Dr Hamilton’s reply affidavit of 2 August 2021. In his cross-examination, Dr Hamilton conceded that the statement he had provided to Steven on 24 May 2018 was “confusing”. The outstanding balance shown on this statement was $74,452.50.

29 June 2018:    Dr Hamilton provided Steven with a statement entitled “FPH No 1 loan to Ridge Estate Pty Ltd” showing an outstanding balance of $75,582.88. Nearly all of the items in this statement comprised payments in respect of the Porsche and Land Rover vehicles.

459    Counsel contended, in addition, that there were no emails from Steven disputing the balances calculated by Dr Hamilton.

460    In the closing submissions, counsel also referred to a loan from Roberto Lorefice (the Lorefice Loan). I will return to the Lorefice Loan shortly.

461    The applicants did not tender financial statements of FPH or FPH No 1 showing the manner in which a loan account to Ridge Estate had been recorded. Nor did they adduce into evidence anything in the nature of ledger statements recording entries relating to the loan account. In fact, the applicants did not adduce anything in the nature of an accounting record in relation to the claimed loan account. The applicants relied instead on documents prepared by Dr Hamilton himself (and not a professional accountant) constructed from other (not always identified) records.

462    Despite this, I am willing to accept that some form of loan account did exist from time to time between FPH No 1 and Ridge Estate. I did not understand the respondents ultimately to dispute that that was so; they disputed only that there was any outstanding balance due to FPH No 1.

Has FPH No 1 proven the balance of the loan account?

The Lorefice Loan

463    It is convenient to address first the Lorefice Loan. Annexure I to the 5SC (again prepared by Dr Hamilton himself) listed the transactions said to aggregate the total loans advanced at $240,934.60. It included $50,000 said to have been advanced to Ridge Estate “via RL loan”. It was common ground that “RL” was a reference to Roberto Lorefice. This loan is to be distinguished from a loan made by Mr Lorefice to FPH directly.

464    In his principal affidavit, Dr Hamilton did not give any evidence with respect to the Lorefice Loan. However, in his reply affidavit and in cross-examination, he explained that Mr Lorefice had lent Ridge Estate $50,000; that Steven had said that he would like to have the debt transferred to FPH No 1 and to have his loan account adjusted; and that he, on behalf of FPH No 1, had agreed to that occurring. FPH No 1 had thereafter “recorded that loan for Mr Lorefice”.

465    There is no documentary evidence supporting the claimed assignment, whether in the form of acknowledgment by FPH No 1 of its indebtedness to Mr Lorefice or by way of acknowledgement of Ridge Estate’s liability to FPH No 1 in respect of the Lorefice Loan. It is not even clear now that FPH No 1 acknowledges that it is liable to Mr Lorefice in respect of the Lorefice Loan. The only references to the Lorefice Loan are in the documents which Dr Hamilton prepared retrospectively for use in the trial. There is, for example, no reference to the Lorefice Loan in the two documents entitled “FPH No 1 loan to Ridge Estate Pty Ltd” provided by Dr Hamilton to Steven on 24 May 2018 and 29 June 2018.

466    The applicants did not adduce evidence of Mr Lorefice’s agreement to an assignment of the liability to repay his loan from Ridge Estate or Steven to FPH No 1. Such an agreement is essential for an effective assignment of a liability: Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40; (2006) 149 FCR 395 at [32] (Finn and Sundberg JJ).

467    Steven did not give any evidence at all in relation to the Lorefice Loan. He was not cross-examined on the topic.

468    Having regard to all these circumstances, I am not persuaded that FPH No 1 is entitled to recover from Ridge Estate or Steven the amount of $50,000 advanced to them by Mr Lorefice.

Other misconceptions/inadequacies in the applicants’ evidence

469    However, even if I had reached a contrary conclusion concerning the Lorefice Loan, there are other matters affecting the sufficiency of the applicants’ evidence.

470    In his principal affidavit re-sworn on 30 August 2021, Dr Hamilton deposed at [16.2], that the balance of the loan account at 2 November 2018 (i.e, the date on which he served notice of termination of the consultancy agreement on Steven) was $28,533.83. Dr Hamilton agreed in the cross-examination that, because the relationship with Steven had then ended, there was no reason (putting aside errors and exceptions) for the loan account balance to increase after 2 November 2018.

471    However, in the Amended Statement of Claim filed only seven weeks later, on 21 December 2018, the outstanding balance on the Ridge Estate loan was pleaded as $59,737.49. This figure increased to $198,164.92 in the Further Amended Statement of Claim filed less than three months later on 12 March 2019.

472    Dr Hamilton could not explain the adjustments to the figure of $28,533.83 which resulted in the figure of $82,321.70 which is the applicants’ ultimate claim. The large variances in these figures, and Dr Hamilton’s inability to give explanations for them, raise doubts, by themselves, about the reliability of the figures advanced by the applicants.

473    Another problem emerged during the cross-examination. In his preparation of Annexure I, Dr Hamilton used as the starting point the aggregate of the amounts said to have been provided by FPH No 1 to Ridge Estate or Steven by way of payment in advance of reimbursable expenses. Whether it was appropriate for Dr Hamilton to have debited amounts advanced in anticipation of the incurring of reimbursable expenses to Ridge Estate’s loan account does not have to be debited. The critical matter is that if that is done, the expenses later recognised as proper expenses have also to be brought into account. But Dr Hamilton did not bring into account, in the calculation, the amounts of the expenses for which Steven had been entitled to reimbursement (and which he had recognised at the time as reimbursable expenses). That is to say, Dr Hamilton claimed the whole of the debits to the loan account but did not bring into account any of the credits. He refused to acknowledge that this was so but was unable to indicate how account had been taken of the credits in the preparation of Annexure I. It is plain that no account had been taken. I add that documents which the applicants produced during the trial in answers to a Notice to Produce revealed a number of instances in which the expenses claimed by Ridge Estate exceeded the amount of advanced on account of those expenses.

474    Dr Hamilton’s inability to acknowledge that the Annexure I suffered from this flaw reflected muddled thinking. Indeed, much of his evidence on this topic lacked coherence.

475    As part of their final submissions, the respondents provided an analysis of each item listed in Annexure I by which Dr Hamilton had calculated his starting position of $240,934.60. An incident of this analysis was that it revealed an error in Dr Hamilton’s calculation, because the total of the items in Annexure I is $253,825.52 and not the $240,934.60 shown by Dr Hamilton.

476    The respondents’ analysis indicated that Dr Hamilton had, contemporaneously with the making of the advances, described 23 of the 40 advances as a reimbursement of expenses or an advance on reimbursement of expenses. It also revealed seven instances in which there was no evidence of the advance claim by Dr Hamilton having been made at all to Ridge Estate. The total of the instances in which there was no evidence of FPH or FPH No 1 having made the advance is $83,000 or, if the amount of the Lorefice Loan is excluded, $33,000. Accordingly, the applicants do not establish an entitlement to recover that sum.

477    The respondents’ analysis also revealed one instance of an amount of $10,000 having been advanced but not having been paid to Ridge Estate. The applicants have not adduced evidence with respect to the destination of that transfer and so do not establish that it can be recovered from Ridge Estate.

478    Counsel for the applicants sought in the final submissions to avoid the consequence of Dr Hamilton not having brought into account the expenses to which Ridge Estate was entitled to reimbursement. He contended that, although Dr Hamilton had recorded the transfers as an advance on reimbursement or an equivalent, that had been a mis-description because the amounts should have been properly described as loans.

479    While one can see that this submission of counsel had a plausible basis, there are two difficulties in the way of its acceptance. The first is that it is inconsistent with the applicants’ own business records, being the descriptions Dr Hamilton himself had given when making the EFTs by which the advances were made. The second is that Dr Hamilton did not give evidence to the effect for which counsel contended. He had had the opportunity to do so when taxed in cross-examination with the proposition that he had prepared Annexure I by reference only to the amounts advanced and without including the credits to which Ridge Estate/Steven were entitled in the form of the reimbursable expenses. The consequence is that there is no evidence to support counsel’s surmise.

480    I commenced this section of the reasons by saying that the evidence provided by the applicants in support of the claim to repayment of the loans was unsatisfactory. The above reasons indicate why that is so. Given the state of the evidence, I conclude that the applicants have not discharged the onus of showing that there was an outstanding balance of the FPH No 1-Ridge Estate loan account which can be recovered in these proceedings.

481    This aspect of the claim is dismissed.

The secret commissions claim

Introduction

482    FPH No1 seeks to recover from Steven secret commissions derived by him from two contractors engaged to perform work on a warehouse on the Yennora Property. The amounts are $115,000 obtained from Sealutions and $60,000 from Mr Theuma. FPH No 1 makes this claim against Steven only.

483    The common law principle is that an agent may not take a commission or make a profit from the agency beyond that paid by the principal, without the knowledge and consent of the principal. The principle was stated by Latham CJ in Peninsular and Oriental Steam Navigation Co v Johnson [1938] HCA 16; (1938) 60 CLR 189 at 215:

If A is dealing with B through A’s agent C, that agent cannot, without disclosure to A, take and retain a commission received by him from B in respect of that dealing. It is immaterial that he takes it as agent for B. But, if A knows that the agent is obtaining a commission from B and consents, the position then is different.

484    The principle serves, amongst other things, to avoid agents having a conflict between their own and the principal’s interest: Law of Agency, Dal Pont (4th edition) [12.7].

485    A principal whose agent has taken a secret commission may recover the amount of the commission in an action for money had and received or sue for damages in respect of the loss suffered by reason of the agent’s fraud: Boston Deep Sea Fishing and Ice Co v Ansell (1886) 39 Ch D 339 at 363-4; Mahesan v Malaysia Government Offices’ Co-Operative Housing Society Ltd [1979] AC 374 at 383; Aequitas v AEFC Leasing Pty Ltd [2001] NSWSC 14, (2001) 19 ACLC 1006 at [380]. In equity, the principal may be entitled to equitable compensation.

Factual setting

486    Dr Hamilton had an interest in a business known as AusPods. The “Pods” is an acronym for “portable on demand storage”. The business hired out storage containers.

487    AusPods Property Pty Ltd was the trustee of the AusPods Unit Trust. It is unclear when that unit trust was established. Dr Hamilton was director of AusPods Property and Mr Steven Shraibman became a co-director.

488    Commencing in about April 2017, Steven assisted AusPods Property in identifying and negotiating the purchase of the Yennora Property at a purchase price of $14 million. Dr Hamilton deposed that the purchase price had been $14.15 million but nothing turns of the difference between that figure and $14 million for present purposes. Steven deposed, and I accept, that he undertook his activities in relation to the acquisition of the Yennora Property as part of the arrangement between FPH and Ridge Estate. Settlement on the purchase of the Yennora Property occurred on 21 December 2017.

489    In his reply affidavit, Dr Hamilton deposed that “Steven Shraibman and his family, via an entity referred to as the ‘Kiev Corporation’, purchased 50% of [the Yennora Property] (along with PODS), and leased a further portion including the warehouse”. However, in cross-examination, Dr Hamilton agreed that it was not correct to say that Kiev Corporation had purchased 50% of the Yennora Property. Instead, Kiev Corp (and/or entities associated with it) owned 50% of the units in the AusPods Property Unit Trust. The acquisition and redevelopment of the Yennora Property seems to have been a form of joint venture between Dr Hamilton and Mr Shraibman.

490    Following the acquisition, AusPods Property embarked on a redevelopment of the warehouse on the Yennora Property to make it suitable for leasing. A business associated with Mr Shraibman (Fashion House) was to be the principal tenant. I infer that, as between Dr Hamilton and Mr Shraibman, it was the latter who had a more “hands on” role in the redevelopment.

491    The applicants claim that FPH No 1 was appointed project manager for the redevelopment of the Yennora Property (which commenced in early 2018) and that Steven through Ridge Estate was the on-site project manager. They allege that, while performing his function as project manager, Steven obtained secret commissions from two contractors.

492    FPH No 1’s claim raised a number of discrete issues which I will address in turn.

Was FPH No 1 appointed Project Manager of the Yennora Project?

493    There was no written agreement between AusPods Property and FPH No 1 with respect to the project management of the work on the Yennora Property. The evidence on which the applicants relied for the contention that FPH No 1 undertook the project management comprised the matters addressed below. Some of it concerned events occurring during the performance of the redevelopment work but it is permissible to have regard to post-contractual conduct for the purose of ascertaining the existence of a contract and its terms: Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [139]-[143]; Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407, (2009) 264 ALR 15 at [13], [326]; Graziano v Graziano [2010] SASCFC 76 at [59]; Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61, (2001) 53 NSWLR 153 at [25]-[26].

494    First, Dr Hamilton and Steven had contemplated that FPH No 1 would act in that capacity. This was evidenced by Dr Hamilton sending to Steven on 18 November 2017 a draft Project Management Agreement between Kiev Corp and FPH No 1. Dr Hamilton requested that Steven review the draft so that it could be finalised (presumably for provision to Kiev Corp). The draft defined the “Services” which FPH No 1 was to provide as:

Project Management Services in the refurbishment and recommissioning of the warehouse at [the Yennora Property], as more particularly described in Schedule 1.

495    The contemplated consultancy fee was $50,000 plus GST. Dr Hamilton explained that he had prepared the draft before the structure of AusPods Property Unit Trust had been decided upon.

496    As evidence of a relationship between FPH No 1 and AusPods Property, this document is of limited utility. That is particularly so as there is no evidence that Dr Hamilton had even discussed the draft agreement with Mr Shraibman, who later became a director of AusPods Property (or so it seems). It does indicate that, at least in November 2017, Dr Hamilton and Steven, who both had an indirect interest in FPH No 1, had contemplated that FPH No 1 may be the Project Manager.

497    Secondly, Dr Hamilton deposed that, after the purchase of the Yennora Property:

Steven Shraibman and I agreed to appoint Steven as project manager via Fairfield No 1. Steven would commence as project manager in January 2018.

498    Dr Hamilton did not descend into any detail regarding the agreement with Mr Shraibman, such as when or how the agreement had been made. Nor did he refer to any documents said to constitute or evidence the agreement reached with Mr Shraibman. However, this passage in Dr Hamilton’s affidavit was not the subject of cross-examination.

499    Thirdly, it is evident that some form of written consultation agreement relating to project management work was contemplated. On 30 January 2018, Dr Hamilton asked Steven to send to him “the agreed terms for the project management agreement”. It seemed implicit in this request that Dr Hamilton contemplated that Steven would be discussing the matter with Mr Shraibman. Steven responded by saying that it was a subject matter “on the agenda for late tomorrow after discussions with [Mr Shraibman]”.

500    The evidence did not disclose what happened at the meeting on 31 January 2018. However, on 19 February 2018 in response to a request by Steven for Ridge Estate to be reimbursed some expenses, Dr Hamilton said in an email to Steven (copied to Mr Shraibman):

I need a project management agreement in place here. Have you and Steven Shraibman come to terms on a monthly figure.

What is (sic) type of items reimbursed by AUSPODS Property (sic) will need to be in this agreement.

501    Counsel for the respondents submitted that this email had been written by Dr Hamilton in his capacity as director of AusPods Property and, considered by itself, that is a conclusion which is open. However, having regard to the broader context, I doubt that that was the position. Instead, the inference is that Dr Hamilton and Steven were acting jointly in the common interest of FPH No 1, because of Mr Shraibman’s active interest in the manner, form, and timing of the redevelopment. Had it been the case that Dr Hamilton on behalf of AusPods Property was seeking a project management agreement with Steven, he could easily have provided his own draft, for example, by adopting that prepared in November 2017.

502    Fourthly, on 1, 5, 19 and 30 March 2018 and 17 April 2018, FPH No 1 issued invoices to AusPods Property for project management fees in respect of the Yennora Property for the months of January, February, March and April 2018 respectively. With one exception, these invoices were at the rate of $15,000 per month plus GST. I note that the invoices were actually issued by FPH and not FPH No 1 but it was not suggested that anything turned on that. Dr Hamilton deposed, and the respondents did not dispute, that FPH No 1 had been paid for Steven’s role as Project Manager (and for additional work in placing a tenant in the warehouse).

503    The bank statements of FPH No 1 indicate that it received payments from AusPods Property on 7 March (two payments), 30 April and 4 June 2018. The payments were each for $16,500 save for the payment on 30 April 2018 which was for $33,000.

504    A voicemail message which Steven left on Dr Hamilton’s phone on 19 February 2018 leaves little doubt that Steven regarded himself as negotiating a consultancy agreement with Mr Shraibman on behalf of both Dr Hamilton and himself (I infer on behalf of FPH No 1).

505    Fifthly, some evidence that the applicants regarded FPH No 1 as having been the Project Manager of the Yennora warehouse redevelopment is seen in the Minutes of the Shareholders’ Meeting of 2 October 2018 (Steven was not a participant in this meeting as the attendees were only Dr Hamilton, Mr King, Mr Dyer and Mr Peacock):

AH informed that Fairfield has been replaced as the project manager of the Yennora Warehouse as of October 1st 2018 at the request of one director of Auspods Property Pty Ltd. AH informed that there is still 20k outstanding and will be seeking payment.

506    Sixthly, counsel for the applicants submitted that Steven had admitted in cross-examination that he had not been engaged in relation to the Yennora Property by any entity other than FPH No 1. I regard the evidence of Steven to which counsel referred on this topic as unclear. Steven did accept, however, that, at the beginning of 2018 when he had introduced Mr Theuma and Mr Pasqua to the Yennora redevelopment, he had done so because he had been engaged by FPH No 1 to provide services on behalf of the Yennora project.

507    In the closing submissions, the respondents submitted that an email from Dr Hamilton in May 2016 had indicated resistance by Steven to FPH No 1 managing the Yennora Property. I am satisfied that the email to which the respondents referred for this submission does not have that effect. It was sent approximately 12 months before the Yennora Property had even been identified as a potential purchase and accordingly well before the issue of the project management of its redevelopment had arisen. This submission of the respondents appeared to be based on reconstruction from documents.

508    The respondents also contended that the evidence showed that Steven had been entitled to two forms of remuneration during the first part of 2018: the consultancy fee of $15,000 per month plus GST pursuant to the PCA arrangement and to the issue of 2,100,016 Performance Units in the AusPods Property Unit Trust for nominal consideration. As the latter was the remuneration for Steven in respect of the project management work, the respondents submitted that this indicated that there had been no occasion for FPH No 1 to be involved.

509    In support of this contention, the respondents referred to an email of Dr Hamilton to Steven on 6 July 2018. It is evident that by this time the relationship between Dr Hamilton and Steven was souring and the email exchanges contained complaints and counter-complaints. The email of 6 July 2018 including the following:

Remember in your kitchen when you said to your dad re performance units.

“this is how we get paid”.

These in-hind sight may have been better put in Fairfield.

510    Counsel submitted that this email evidenced a recognition of Dr Hamilton that Steven’s remuneration in respect of the project management work comprised the allotment to him for nominal consideration of units in the Unit Trust. Dr Hamilton denied in cross-examination that that was so.

511    The email can be construed in the way for which counsel contended but I doubt that it would be appropriate to do so. In the first place, subject to one matter to be mentioned shortly, no evidence was led from Dr Hamilton or Steven concerning the conversation in the kitchen to which the email referred. Nor did the respondents lead evidence from Philip on the topic, even though he was present in the courtroom for the major part of the trial. This would have been primary evidence.

512    Secondly, Dr Hamilton said that Steven had made the comment “this is how we get paid” in response to Philip’s reluctance to sign “the performance units document”. That document was not in evidence but presumably provided for the grant of the performance units to Cradle Estate (being the entity associated with Steven which was to hold the units). Counsel for the respondents submitted that there was no reason for Philip to have been so reluctant. I do not accept that submission. Philip may well have been sceptical of the ability of the Yennora Property to obtain a return of 8% which was the hurdle to be achieved before the units of Steven would have any value and therefore have been questioning the value of the additional remuneration he was to receive which would justify the expense of Steven and his family living for a period in Sydney.

513    Thirdly, the email was written in the context that Dr Hamilton was complaining about the ongoing cost to FPH in providing the remuneration to Steven without reciprocal results. The potential for Dr Hamilton to have made a self-serving statement in that context cannot be overlooked. That is especially so given that Steven had enquired of Dr Hamilton on 27 June 2018 (TB13.7898) as to the number of “shed management payments” which FPH had received. As other evidence indicated that Steven referred to the Yennora Property as “the shed”, this seemed to reflect implicitly and acknowledgement by Steven that FPH No 1 was receiving payments in respect of his project management work.

514    Finally, Dr Hamilton has recognised in this litigation that Steven and Ridge Estate have an entitlement to remuneration during the period in which Steven was performing the project management work. Account was taken of it by Dr Hamilton in his calculation of the balance of the Ridge Estate Loan Account. Given Dr Hamilton’s evident attempts to maximise the amounts he can recoup from Steven or Ridge Estate, I doubt that he would have made this concession unless it was the case that Ridge Estate had a claim against FPH No 1 in respect of the project management work.

515    Counsel for the respondents also referred to evidence from Mr Theuma and Mr Pasqua that they had thought that they were contracting with AusPods Property and had directed their invoices to that company. I will refer to this evidence shortly. While I accept the evidence of Mr Theuma and Mr Pasqua, their understanding was obviously derived from Steven. In any event, it is not inconsistent with FPH No 1 being the Project Manager on the basis that the expenses incurred in the redevelopment (other than the project managing services itself) were to be paid directly by AusPods Property. Accordingly, I do not regard this evidence as persuasive in the manner for which the respondents contended.

516    While the evidential position was not entirely satisfactory, I consider that it does establish that FPH No 1 did act as the Project Manager for the redevelopment of the Yennora Property, but on the basis that Steven would perform the on site work.

Did Steven work as Project Manager?

517    In the affidavit containing his evidence in chief, Steven denied that he had been Project Manager for the redevelopment of the Yennora Property. The respondents’ defence contained a similar denial. Steven deposed that he had no control over the redevelopment work and said that the day to day management had been by Mr Shraibman. Steven accepted, however, that he had introduced Mr Theuma and Mr Pasqua to conduct work at the Yennora Property, describing them as “former contacts of mine”.

518    The evidence indicates overwhelmingly that these denials of Steven were untruthful and it is hard to avoid the conclusion that Steven must have known that was so. Indeed, the respondents’ final submissions were made on the basis that Steven had been engaged as Project Manager although, as Steven contended, by AusPods Property and not by FPH No 1.

519    The evidence indicating the untruthfulness of Steven’s denials is as follows.

520    First, Dr Hamilton deposed that AusPods Property and Mr Shraibman had agreed that Steven would be the Project Manager of the renovation works to be undertaken at the warehouse and Steven commenced on site in that role on 14 January 2018. Given my reservations about Dr Hamilton’s evidence, this may not amount to much, but it is confirmed by other evidence.

521    Secondly, Steven confirmed aspects of his role as Project Manager in an email to Mr Shraibman on 12 February 2018 (cc’d to Dr Hamilton) in which he said:

This week I will be ringing everyone and meeting onsite, please from today no-one, talks to council or visit[s] site without me (that means they talk to me first).

As project manager I deal with the builders, trades and overseeing the master plan … seeing how I have no access to the bank accounts (do not want it either) you are to do all paper work, which is just staying on top of bills being paid and limiting the amount of paper (emails, etc …) you send the guy that is on the ground dealing with people all day and does not have time to read. Fairfield will be invoicing for my services each month.

My aim is to get the site ready for your fit-out as soon as possible …

(Emphasis added)

522    Thirdly, in an email to Mr Shraibman on 15 March 2018, Dr Hamilton said:

Please make sure that SVN sees all invoices and consultants that are being paid for approval prior to sending to me for payment. He is the project manager and needs to continue the process.

523    Fourthly, email exchanges between Steven and Mr Shraibman on 16 March 2018 make plain Steven’s involvement. Those exchanges included Steven’s protest to Mr Shraibman “you are slowing me down (my builder is doing little jobs that he does not need to be doing … he was ready to start 16 days ago)” and his assurance “it is all happening together, leave it to me the timing”.

524    Fifthly, on 19 April 2018, Steven protested against a request by Dr Hamilton for a breakdown of a quotation for earthworks and concreting (I infer a quotation of Mr Pasqua). His protest included the statement “either I am managing the process or not …”.

525    It is also evident that Steven was active in encouraging AusPods Property to retain Sealutions as its flooring contractor. This is particularly evident in Steven’s email of 7 August 2018 to Dr Hamilton in which he said “this is the best guy for the job … without a doubt” and in his email of 16 August 2018 when he sent the quotation of Sealutions to Dr Hamilton for signature. Steven also protested when Dr Hamilton and Mr Shraibman decided not to use Sealutions as the earthmoving and concrete contractor.

526    A pertinent matter is that, in addition to 2,100,016 Performance Units allocated to him in the AusPods Property Unit Trust for nominal consideration, Steven continued to be paid the consultancy fee by FPH. I accept Dr Hamilton’s evidence that Steven received the Performance Units in addition to the consultancy payment as a form of incentive to him in relation to the performance of his work as Project Manager. It is to my mind plausible that Steven had wished to work both as Project Manager and as consultant under the PCA because, by 2018 there was relatively little activity occurring in relation to the acquisition of CSG properties by FPH.

527    The respondents’ submission that Steven’s arrangement with respect to the Yennora Property had been with AusPods Property and not FPH did not sit altogether comfortably with Steven’s denial that he had had a project management role in respect of the redevelopment.

528    There is no difficulty in concluding that Steven worked as the on site project manager on the redevelopment of the Yennora Property. I am satisfied that he did so on behalf of FPH No 1 and not pursuant to a retainer with AusPods Property.

529    The evidence did not make clear when Steven ceased as Project Manager but it may have been as late as October 2018.

Did Steven obtain secret commissions?

530    I will address separately the evidence of Mr Theuma and Mr Pasqua.

(i) Mr Ray Theuma

531    Mr Ray Theuma, a licensed builder, was one of the contractors whom Steven retained to perform substantial work on the Yennora Property. He received payment for his first three invoices without incident on 27 March, 12 April and 22 May 2018 ($37,000, $81,707.33 and $53,000 respectively). Mr Theuma deposed, however, that when he spoke to Steven about the payment of the invoices in respect of his later work, Steven told him that he required a personal payment with respect to each invoice. Thus, in late May 2018, Steven told him “I’m going to chase your money but I need $10,000 for each invoice”.

532    A few days later, Mr Theuma gave Steven $6,000 in cash.

533    Mr Theuma received payment of $100,000 in respect of his work on 15 June 2018. Shortly afterwards, Mr Theuma had the following conversation with Steven:

Steven:    We have just transferred you $100,000. I need you to share $20,000. I’ll be on site at 11 am.

Mr Theuma;    I can only withdraw $10,000 from my account per day. I can’t give you $20,000 straightaway. I can give you $10,000 one day and a further $10,000 the next.

Steven:    OK.

534    Over the next few days, Mr Theuma gave Steven a total of $20,000 in cash.

535    On 19 July 2018, Mr Theuma received payment of a further $100,000 and, on the following day, gave Steven $10,000 in cash.

536    In late July 2018, Steven told Mr Theuma “I need another $10,000 from the next invoice. I’ll be on site at 11 am to collect”. In August 2018, Mr Theuma followed up with Steven an unpaid invoice, and the following conversation occurred:

Mr Theuma;    You owe me $200,000.

Steven:        I can try and get your money but I need my share.

Mr Theuma:    I’m only giving you $5,500.

537    Mr Theuma made further payments to Steven in respect of the payments he received later in August 2018.

538    On 7 September 2018, Mr Theuma and Steven had a conversation to the following effect:

Mr Theuma:    I’ve got no money.

Steven:    Mate, I need to feed my family. I’ve got no money, I can’t pay my bills. I’m not getting paid and this is the only way I can get paid to feed my family. Please don’t tell any of the other managers.

539    On 17 September 2018, Mr Theuma received payment of $100,000 and handed Steven $10,000 in cash on 19 September 2018.

540    On 11 October 2018, Mr Theuma was paid a further $150,000 and, on each of 16 and 17 October 2018, gave Steven $10,000 in cash. Mr Theuma deposed (and I accept) that he had in total paid Steven $122,000 in the manner just described. However, FPH No 1 alleged and sought recovery of the sum of $115,000 only.

541    The evidence just summarised from Mr Theuma was contained in an affidavit made by him on 5 November 2018. Mr Theuma, who had been subpoenaed, gave his evidence after formally objecting to doing so on the grounds of self-incrimination. Acting pursuant to s 128 of the Evidence Act 1995 (Cth), I directed him to give the evidence but issued him with a Certificate pursuant to s 128(7).

542    In his affidavit, Mr Theuma made two references to FPH No 1. He deposed, first, that he had been engaged by FPH No 1 and, secondly, that he had prepared invoices to be paid every fortnight FPH No 1. In cross-examination, Mr Theuma agreed that his invoices had been directed to AusPods Property and said that he had not put FPH No 1’s name on anything. Mr Theuma said that it was the lawyer retained by Dr Hamilton to draft his affidavit who had included the references to FPH No 1. He also said that he had received payment of his invoices by deposit into his account by direct debit from an AusPods Property account.

543    The one invoice from Mr Theuma in evidence (dated 11 March 2018 for an amount of $37.763.36) was addressed to AusPods Property. The evidence showed that Mr Theuma sent this email to Steven at his Fairfield Pastoral email address, and that Steven forwarded it onto Dr Hamilton with a request that he put it “into today’s pay run”.

544    I am satisfied that Mr Theuma was contracted by AusPods Property and that he directed his invoices to AusPods Property.

(ii) Mr Joe Pasqua

545    Mr Pasqua is the director of Auqsap Pty Ltd which trades as Sealutions Industrial Flooring. Sealutions provided a quote of $776,500 for flooring work on the Yennora Property. After providing that quotation, he had a conversation with Steven to the following effect:

Steven:    We don’t need this site to be perfect. We just need to make it good for a tenant to come in and rent the place for a couple of years and then we may knock it down and resell it.

Mr Pasqua:    So we can use alternative materials to the Parchem materials to keep the cost down. I’ll need to look at the works again and I can come up with a revised quote.

Steven:    No worries.

546    In a subsequent conversation with Steven, the following exchange occurred:

Mr Pasqua:    It’s going to cost about $450,000.

Steven:    Get the quote up to $470,000. Put $20,000 on top for me. I have a lot of other jobs we can work on together.

Mr Pasqua:    OK.

547    Mr Pasqua gave Steven a revised quotation for $471,880.

548    In March 2018, Mr Pasqua had a conversation to the following effect with Steven:

Steven:        I need $50,000.

Mr Pasqua:    We agreed on $20,000. I don’t know what you’re talking about.

Steven:    If you don’t pay the $50,000 I won’t be able to give you another job. I’ve got heaps of other good jobs I can get you.

Mr Pasqua:    I can get you $50,000 but it will take a couple of weeks.

549    On 27 March 2018, Mr Pasqua paid Steven $50,000.

550    Shortly afterwards, Mr Pasqua gave Steven a quotation for concreting works (the evidence did not indicate whether this was work at the Yennora site or elsewhere). After he had given the quotation to Steven, Steven said “put a higher amount so I get my share”.

551    Shortly afterwards, Steven and Mr Pasqua had another conversation in which an exchange to the following effect occurred:

Steven:    I need some money to get a deal across the line. Can you help me out. I need about $10,000.

Mr Pasqua:    I’ve already spent way more money than I had allowed for this job and in fact I’m now losing money.

Steven:    Don’t worry, I will get you the concrete job. And we can get you some variations on levelling the floor as well a bit later on at the job.

552    In about mid-April 2018, Mr Pasqua handed $10,000 in cash to Steven.

553    Mr Pasqua deposed that the scope of the concreting works at the Yennora Property increased and he gave about five different quotations with the price increasing up to $2,800,000. He deposed:

[26]    While we were pricing the works Steve wanted a $150,000 added to the quote for himself. I agreed to add it to the quote.

554    Mr Pasqua’s evidence indicates that he paid Steven a total of $60,000 in accordance with the arrangements set out above.

555    Mr Pasqua’s evidence was contained in his affidavit of 5 November 2018. He too had been subpoenaed to give evidence and objected to doing so on the grounds of self-incrimination, having regard to s 249B of the Crimes Act 1900 (NSW). Acting pursuant to s 128 of the Evidence Act, I directed Mr Pasqua to give the evidence but issued him with a Certificate pursuant to s 128(7).

556    The evidence of Mr Theuma and Mr Pasqua just summarised was not challenged in their respective cross-examinations. In both cases, most of the respective cross-examinations was directed to the entity with which the witnesses had contracted.

557    Mr Pasqua said that he was not sure of the entity to whom he had provided his quotation because he had been dealing with Steven. He believed, however, that Steven had been a representative for AusPods Property. He also believed that his signed purchase order had come from AusPods Property. Mr Pasqua said that he had been told by Steven to address the invoices to AusPods Property. An invoice from Sealutions dated 16 March 2018 was in evidence. It was directed to AusPods Property. Mr Pasqua said that he had received payments from AusPods Property only.

558    As in the case of Mr Pasqua, I am satisfied that Sealutions was contracted by AusPods Property and that Mr Pasqua rendered his invoices to that entity.

559    Mr Pasqua agreed that he had heard of FPH before the meeting with Dr Hamilton at which he agreed to provide an affidavit, but said that he had not heard of FPH No 1.

Steven’s evidence

560    Steven’s affidavit did contain two paragraphs, [234] and [236] respectively, in which he addressed the matters in the affidavits of Mr Theuma and Mr Pasqua summarised above but counsel for the respondents did not tender those paragraphs as part of the evidence in chief of Steven at the trial. When in the cross-examination, counsel asked Steven whether he had had any conversations with Mr Theuma in relation to the payment of moneys to him for his work at Yennora, counsel for the respondents objected, saying that Steven was claiming the privilege against self-incrimination. Counsel for the applicants did not then press the question of Steven.

Finding as to Steven’s demanding the secret commissions

561    Both Mr Theuma and Mr Pasqua gave their evidence honestly and I accept it. In particular and keeping in mind s 140(2)(c) of the Evidence Act, I accept their evidence as to the money demanded by Steven and their payment of it. I find that Mr Pasqua paid Steven a total of $60,000 and that Mr Theuma paid a total of $122,000. Steven received this money without the authority or consent of either AusPods Property or FPH No 1. His conduct in requesting Mr Pasqua to increase the amount of his quotation in order that he could receive the secret commission was corrupt. The moneys constituted secret commissions to which the principles stated at the commencement of this section of the reasons are applicable.

The proper claimant for payment of the secret commissions

562    The respondents submitted that, even if FPH No 1 had engaged Ridge Estate/Steven to be the on site Project Manager, it could not recover the amounts of the secret commissions obtained by Steven from Mr Theuma and Sealutions. They contended that AusPods Property was the only party able to recover those commissions.

563    The respondents referred to two authorities in support of this submission. In Powell & Thomas v Evan Jones & Co [1905] 1 KB 11, the question was whether a principal could recover from a sub-agent the amount of a secret commission received by the sub-agent. The circumstances were that Evan Jones & Co (the principal) had retained Powell & Thomas (the agent) to raise funds for it in consideration of the payment of a commission. Powell & Thomas, with the agreement of Evan Jones, engaged Cowperthwaite (the sub-agent) on the basis that he would receive a share of the commission to be paid by Evan Jones & Co. Without the knowledge of either the principal or the agent, the sub-agent was paid a commission by the financier. The agent brought a claim against the principal to recover the amount of the agreed commission. The principal counterclaimed against both the agent and the sub-agent for the amount of the secret commission. The agent’s claim against the principal and the principal’s claim the sub-agent succeeded.

564    On the appeal, it was contended that the principal was not entitled to recover against the sub-agent because there was no privity of contract between them. The Court of Appeal rejected that argument. It held in any event that the sub-agent stood in a fiduciary relationship with the principal and so was obliged to account to it for the secret commission.

565    Stirling LJ, at 21, went further than Collins MR and Mathew LJ and found that it was only the principal who could recover from the sub-agent:

The question arises, for whom in this case ought the sum paid by way of commission by the [financier] to [the sub-agent] to be considered to have been earned, and who ought to be considered as really entitled to receive it? It seems to me that [the principal], and not [the agent], are the persons who ought to be considered as so entitled. [The sub-agent] was dealing with [the agent] in their capacity as agents. They could not, without authority from [the principal], have authorized him to accept a commission from [the financier]. In my judgment, if he had, on the strength of an authority conferred on him by [the agent], accepted such a commission, it would have been at his own risk; and, if it turned out that [the principal] had not in fact conferred such an authority on [the agent], he would have been accountable to [the principal] for the commission he received. No such question can arise here, because [the agent] were as ignorant of the arrangement made by [the sub-agent] for the payment to him of commission by [the financier] as [the principal] themselves. In these circumstances I think that [the principal] have a right to call on [the sub-agent] to account for the sum which he has received from [the financier], as being money improperly accepted by him in the course of his employment without their sanction, and which he is under an obligation to pay over to them, and not to [the agent], who had no authority from [the principal] to release him from that obligation, or to deal with it in any way.

(Emphasis added)

566    A similar issue arose in Novoship (UK) Ltd v Mikhaylyuk [2014] EWCA Civ 908; [2015] QB 499. In that case, a director (the sub-agent) of a charter agent (the agent) engaged in the charter of ships on behalf of shipowners had, in breach of his fiduciary duty, obtain bribes from the charterers of ships which were paid to himself and to third parties. One of the questions on the appeal was whether it was the agent or the shipowners who were entitled to recover the bribes from the sub-agent and the third parties who were knowing beneficiaries of the bribes. The Court of Appeal applied the reasoning of Stirling LJ in Powell & Thomas at [124] with the consequence that there could be no recovery at all with respect to two ships whose owners had ceased to exist. That is to say, the charter agent was not permitted to recover the amounts of the bribes in respect of these two ships.

567    Counsel for the applicants submitted that each of Powell & Thomas and Novoship should be distinguished. In the case of the first, this was because the Court of Appeal had not had to consider the position which an agent sought to recover a secret commission and the principal had not. That may be so, but Stirling LJ’s remarks were endorsed in Novoship. In relation to Novoship, counsel for the applicants submitted that the claim for the bribes paid in respect of the two ships whose owners had ceased to exist, had failed because there was no fiduciary agency relationship between the charter agent and the recipient of the bribes (who in those cases had not been the sub-agent). That submission is correct insofar as it rests on the relationship between the recipient of the bribe and the shipowners. However, the claim by the charter agent failed because the Court of Appeal accepted that the correct claimants were the shipowners and not the charter agent.

568    The submissions in this case were made without reference to any distinction to be drawn between Ridge Estate and Steven.

569    It does not seem that either Powell & Thomas or Novoship has been applied in Australia, at least on this point. Nevertheless, I consider that the Court should apply the principle for which they stand. That is confirmed by the circumstance that, at least in the case of the payments by Sealutions, it is AusPods Property which has been defrauded and has suffered the loss (by reason of Steven’s inducement to Mr Pasqua to “load” his quotation so as to accommodate the payments to him. The consequence is that FPH No 1, as the agent for AusPods Property, cannot be regarded as a proper claimant for the secret commissions.

570    This puts into sharp focus FPH No 1’s claim that AusPods Property has assigned to it its rights of recovery with respect to the secret commissions.

The claim based on the assignment

571    Again, the manner in which the applicants have advanced this claim has given rise to issues which would have been unnecessary had proper attention been given to this alternative way of advancing the claim at an earlier stage.

572    A short chronology of the way in which the issue did arise is as follows.

573    The respondents’ filed defence had not raised any issue with respect to the proper claimant for recovery of the secret commissions. However, in the initial opening submissions filed on 25 May 2021, counsel submitted that as Sealutions and Mr Theuma had been retained by AusPods Property, any claim for the secret commissions had to be advanced by that company. Counsel did not raise separately the point based on Powell & Thomas and Novoship.

574    In [141] of his reply affidavit made on 2 August 2021, Dr Hamilton deposed that, on 31 July 2021, AusPods Property and FPH No 1 had “entered into a deed of assignment whereby AusPods Property assigned to [FPH No 1] any rights to recover against Steven or the other Respondents arising out of the secret commission” alleged by FPH No 1 in the proceedings. A copy of the deed of assignment was included in the Joint Tender Book.

575    By their Amended Defence filed on 6 September 2021, the respondents added to their plea with respect to the secret commission the plea that “if (which is denied) Steven had received any secret commissions, the proper plaintiff is AusPods, not Fairfield No 1”. That Amended Defence was filed eight days before the trial commenced on 14 September 2021.

576    At the commencement of the trial on 14 September 2021, I announced my ruling dismissing the respondents’ objection to [141] in Dr Hamilton’s reply affidavit. That ruling was made in a summary way, after considering the parties’ objections and responses in Chambers. Despite my indicating that the parties had an opportunity to seek to have a summary ruling revisited, the respondents did not seek a revised ruling. Counsel did, however, object to the admission into evidence of the deed of assignment itself. The contention was that the deed of assignment was not relevant to a pleaded issue, as the applicant had not pleaded the material facts relating to any claim by AusPods Property, nor the assignment itself. I overruled that objection, taking the view that if the document was relevant for one purpose, it should be received into evidence on the basis that the parties could make submissions as to its proper use as part of the final submissions. Amongst other things, I had in mind the potential relevance of the deed of assignment to [35] in the Amended Defence.

577    Counsel for the respondents foreshadowed, when making the objection to the tender of the deed of assignment that, if it was received into evidence, he would need “immediately to go on a subpoena war” because he did not have discovery from AusPods. However, following the ruling admitting the deed of assignment, counsel did not seek leave to issue any subpoenas.

The absence of a pleading

578    In the final submissions, the respondents again submitted that it was not open to FPH No 1 to rely on the deed of assignment given that the applicants had not pleaded the material facts giving rise to the cause of action of AusPods and had not pleaded the assignment itself.

579    I am not willing to uphold that contention. In the first place, a substantial number of the material facts necessary to support the cause of action of AusPods Property have been pleaded (in [35]-[75] of the 5SC). They have that character considered objectively, and it is not material that their purpose had been to support the claim of FPH No 1. The only thing the applicants did not plead was that Steven had been engaged by FPH No 1 in its capacity as contractor to AusPods Property and that the pleaded facts gave rise to a claim by AusPods Property.

580    In the second place, the respondents themselves pleaded that, if contrary to their denials, Steven had received the payments from Mr Theuma and Sealutions, AusPods Property was the proper applicant. On the hypothesis on which this plea of the respondents was made, some matters were implicit in their pleading. These included that, on the pleaded material facts, AusPods Property had a proper claim against Steven (any suggestion that Steven had the authority or consent of AusPods Property to claim the secret commissions being fanciful); that AusPods Property was entitled to recover the secret commissions; and that the claim of AusPods Property had not been foreclosed or compromised.

581    At the trial, the case the respondents advanced the case that Steven had been engaged by AusPods Property and not by FPH No 1. They sought thereby to establish that the proper applicant was AusPods Property. In those circumstances, it is difficult to see what practical prejudice there is to the respondents in proceeding on the basis of their own pleading, even in the absence of a pleading by the applicants.

582    It is the case that there is no pleading of the assignment from AusPods Property to FPH No 1. If there was the prospect of prejudice to the respondents arising from the absence of such a pleading, that would be a significant matter especially as, in relation to other matters, I had told the parties that I would be determining the issues in accordance with the pleadings. However, the respondents had not embarked on the foreshadowed “subpoena war” and did not identify any particular evidence which they would have investigated or adduced had there been a plea of the assignment of AusPods Property’s rights in respect of the secret commissions. Nor did the respondents challenge Dr Hamilton in his cross-examination in relation to the deed of assignment, although they must have known following the rejection of their objection to admissibility of the deed of assignment that it may be relied on. Nor did the respondents make any submissions impugning the validity or efficacy of the deed of assignment. Nor did they suggest that any denial of procedural fairness would be involved. It was open to them to do so if they wished.

583    In the circumstances, I am not satisfied that there is any unfairness to Steven in upholding FPH No 1’s claim in respect of the secret commissions on the basis of the assignment by AusPods Property of its cause of action to it. The obligation imposed on the Court by s 22 of the Federal Court of Australia Act 1976 (Cth) is pertinent in this respect.

Conclusion on the secret commissions claim

584    In the circumstances, I uphold FPH’s claim with respect to the payment of the secret commissions. FPH No 1 is entitled to interest on the sum of $175,000, calculated in accordance with the Court’s Practice Note “Interest on Judgments” GP-Int. After allowing for some rounding, and taking into account the applicants’ responsibility for some delay in the prosecution of the proceedings, I allow interest of $20,000. Judgment for the sum of $195,000 inclusive of interest will be entered against Steven personally.

The insurance proceeds claim

585    This is a curious claim by FPH.

586    In order to comply with the terms of the Equipment Loan from NAB, FPH took out a policy of insurance with QBE over Lot 2 and over the equipment securing the loan. Perhaps because the equipment was stored in a shed on Lot 1, the insurance which FPH took out was a Farm Pack Policy covering both Lots 1 and 2. Although there was no evidence on the topic, I infer that Ridge Estate did not make any contribution to the payment of the premiums.

587    In late 2016, Steven caused Ridge Estate to make a claim on the policy in respect of damage to the shed on Lot 1 in which the equipment was stored. He caused Ridge Estate to make a second claim in 2017. Steven caused QBE to pay the insurance proceeds of $42,082.73 and $7,408.20 respectively into the bank account of Ridge Estate. In respect of the first payment, Steven did so by providing QBE with Ridge Estate’s bank account details on 25 November 2016. In respect of the second, he provided QBE with a declaration indicating that the proceeds should be paid into the Ridge Estate bank account. These amounts were paid in respect of the damage to the shed and other infrastructure on Lot 1 rather than in respect of any of the equipment transferred to FPH. I do note, however, that the documentary evidence shows that QBE paid another amount ($3,171) in “settlement for Quad Bike” on 7 December 2016 but FPH made no specific claim in respect of that amount.

588    Even if account is taken of the sum of $3,171, the aggregate of the insurance proceeds is not the figure of $62,000 claimed in [88] of the 5SC. The applicants did not explain how they arrived at that figure.

589    Dr Hamilton deposes that he, as the director of FPH, had not authorised the payments to Ridge Estate.

590    The applicants claim that FPH is entitled to the insurance proceeds of $42,082.73 and $7,408.20 was said to arise because it, as the insured, was entitled “as a matter of contract” to the proceeds of the claim.

591    I referred to this claim as being curious. That is so because the applicants made the claim without reference to the Farm Pack Policy with QBE or to its terms despite it being the contract said to give rise to FPH’s entitlement. Moreover, the applicants made no attempt to show that FPH itself, as distinct from Ridge Estate, had suffered pecuniary loss by reason of the occurrence of the insured event, no attempt to show that FPH had an insurable interest in the property on Lot 1 which was damaged, and made no reference to the application of s 17 of the Insurance Contracts Act 1984 (Cth) (the ICA) in the circumstances that it itself did not claim to have suffered a pecuniary or economic loss by reason of the happening of the insured event. In fact, the applicants’ submissions made no reference to legislative provisions or authority at all.

592    Section 17 of the ICA does relieve an insured from having to establish an insurable interest in the damaged property but only when the insured has suffered a “pecuniary or economic loss”. The applicants did not show that FPH had suffered a pecuniary or economic loss resulting from the insured event. Nor did they show that FPH had an insurable interest in the damaged property.

593    Given these matters, the applicants have not established an entitlement to any order with respect to payment by Ridge Estate of the insurance proceeds it received from QBE.

594    One final matter. If it had been possible for FPH to recover under the insurance policy despite itself not suffering any pecuniary or economic loss, it seems probable that it would have been impressed with a constructive trust in favour of Ridge Estate with respect to the proceeds. It is improbable that FPH would have been entitled to retain the windfall constituted by the insurance payout when it itself had not suffered any loss but Ridge Estate had.

595    This claim of the applicants is dismissed.

The unpaid cattle purchase price

596    The respondents acknowledged that the balance of $37,720 remains owing by Ridge Estate to FPH in respect of its purchase of cattle. This is less than the figure of $38,060 pleaded in the 5SC but Dr Hamilton’s evidence supported only the lower figure.

597    By way of defence to this claim, Steven deposed that he had agreed with Dr Hamilton that the balance would be offset against sums otherwise owed to Ridge Estate by FPH for “monies owed and reimbursements”.

598    I do not accept this claim of Steven which seemed, in any event, to have the air of confection about it. In the first place, Dr Hamilton was not cross-examined with reference to this claim. Secondly, Steven did not point to evidence indicating that FPH was indebted to Ridge Estate in early 2017 for an amount in the order of $37,720 which might have formed the basis for the agreement he alleged. Thirdly, the respondents have not sought by a pleading in the cross-claim to support the claimed setoff.

599    The applicants have established that Ridge Estate is indebted to FPH in its own right in the sum of $37,720. I will allow interest in accordance with the Court’s Practice Note. After making allowance for the applicants’ responsibility for some delay in the prosecution of the action and some rounding of, I allow $5,000. The total award for this item is therefore $42,720.

The cattle agistment claim

600    On 31 October 2018, Dr Hamilton sent to Ridge Estate an invoice in respect of the agistment of cattle on Lot 2. The invoice total of $30,272 was made up of two figures, being the agistment of 40 cattle in each of two periods: 1 July 2016 to 30 June 2017 and 1 July 2017 to 28 February 2018. In respect of each period, Dr Hamilton claimed an agistment rate of $8 per head for 40 head of cattle.

601    FPH claims the sum of $30,272. The evidence in support of this claim is somewhat scant. Dr Hamilton does depose that Ridge Estate agisted 40 head of cattle on Lot 2 from about 1 June 2016 to early 2018. However, he does not depose to any agreement with respect to the payment of agistment fees. Instead, he deposed to his having sent to Steven on 10 February 2016, 30 May 2016 and 15 June 2016 agistment agreements for his signature.

602    I have my suspicions about the first of these agreements because of the date it bears. At the time, it is said to have been sent, FPH did not even own Lot 2 (and indeed had not even entered into a contract for its purchase). Yet it purports to relate to the agistment of cattle commencing on 10 February 2016. The agistment rate stated in the draft agreement was $20 inclusive of GST per adult head per month and $10 inclusive of GST per calf head per month. It is not apparent why Steven or Ridge Estate would have been willing enter into such an agistment agreement at that time. However, it does not matter as neither Steven nor Ridge Estate executed that agreement and there is no evidence that they agreed to its terms.

603    The agistment agreements sent on 30 May 2016 and 13 July 2016 stipulated a rate of $8.75 inclusive of GST per “adult unit” per week. Steven and Ridge Estate did not execute either of these agreements and there is no evidence that they otherwise agreed to their terms. Dr Hamilton does not depose that they did nor does he point to conduct of Steven from which such an agreement could be implied. I note that the agistment rate on which the applicants sue is different from that in the unexecuted agreements.

604    In these circumstances, FPH does not establish the agreement on which it sues. I add further that one cannot help but have some scepticism about this claim in the circumstances just outlined and given that Dr Hamilton sent the invoice on which he sues only at the time of the final breakdown in his relationship with Steven.

605    This claim is dismissed.

Licence of Lot 2 - peppercorn rent

606    FPH alleges that Steven, and through him Ridge Estate, engaged in misleading or deceptive conduct in contravention of s 18 of the ACL in relation to the licencing of Mr Jonathon Bayes in early 2016 to occupy Lots 1 and 2. FPH alleges that Steven caused Ridge Estate to enter into an agreement with Mr Bayes by which he could occupy both Lots 1 and 2 in consideration of a monthly licence fee of $12,500 in respect of Lot 1 and a monthly licence fee of $1 in respect of Lot 2 and that he did this, not only without the authority of FPH, but while keeping the arrangement concealed. FPH alleges that it had suffered the loss of a proportionate share of the licence fee paid by Mr Bayes.

607    Mr Bayes gave evidence and was an honest witness. He confirmed that following some negotiations with Steven he was provided by Steven with licence agreements for the occupation of Lots 1 and 2 respectively. He executed the licence agreement in respect of Lot 1 on 21 June 2018 but never executed the licence agreement in respect of Lot 2. He occupied Lots 1 and 2 from an unspecified date in early 2018 until late 2018.

608    My impression is that this may be another instance of dishonest conduct by Steven. However, it is not necessary to express a concluded view about that because I am not satisfied that FPH has shown that it has suffered a loss by reason of the misleading or deceptive conduct it alleges, even if that conduct be established.

609    The evidence does not establish that FPH was precluded, by reason of the arrangements Steven made with Mr Bayes, from itself leasing or licencing the use of Lot 2 during 2018. There is not even evidence that it made attempts to do so. It is true that there is documentary evidence that Dr Hamilton had told Steven that it was desirable for Lot 2 to be earning an income and that Steven did not inform him of his arrangement with Mr Bayes regarding Lot 2. However, there is no evidence of other steps taken by Dr Hamilton to make profitable use of Lot 2. It is to be remembered that in the first part of 2018, Steven was in Sydney undertaking project management at the Yennora Property.

610    Moreover, there is a difficulty in the way in which FPH has sought to prove its claimed loss of $60,000. It claimed an amount equal to 40% of the total of $150,000 said to have been paid by Mr Bayes. It derives the figure of 40% from what is said to be the proportion which the area of Lot 2 bears to the combined areas of Lots 1 and 2.

611    This formulation of the loss has two difficulties. First, FPH did not establish that Mr Bayes had paid $150,000 by way of licence fees. Secondly, there is no evidence at all to show that a 60/40 apportionment based on a pro rata share of the total area of the two Lots is appropriate. The Court was not even given the areas of the two Lots. There is also evidence suggesting that, even if Lot 2 does comprise 40% of the combined area, a 60/40 split would be inappropriate. That is the evidence that Lot 1 has considerably more infrastructure on it than Lot 2. That suggests that, if the rate of $12,500 per month for the two properties be appropriate, there would need to be some weighting in favour of Lot 2 over and above a division based on the respective areas of the two properties. The applicants did not lead expert evidence as to the lease or licence fees obtainable in respect of Lot 2 or with respect to an appropriate apportionment between the two properties.

612    In short, while the conduct of Steven in relation to the grant of the licence to Mr Bayes appears to be questionable, I am not satisfied that FPH has proven a loss resulting from that conduct which can be the subject of an award pursuant to s 236 of the ACL. This claim of FPH is dismissed.

The respondents’ cross-claim with respect to the equipment

613    By its cross-claim, Ridge Estate sought orders for the recovery of equipment said to have been misappropriated and converted by Dr Hamilton, FPH or FPH No 1. Ridge Estate claimed in the alternative that FPH and FPH No 1 had agreed to purchase the equipment but had never paid for it. It sought payment of the sum of $240,713, being the amount shown in the invoice of 6 April 2016 which it had provided to FPH.

614    In the final submissions, Ridge Estate pursued only the claim for payment of the sum of $240,713 as per the 6 April 2016 invoice.

615    Ridge Estate identifies the equipment in question by pleading that it includes the items listed in Annexure A to the 5SC (other than Items 12, 19 and 26). However, neither its pleaded case nor its evidence identified any items of equipment other than those listed in Annexure A as the subject of its claim. For reasons which will become apparent, it is not necessary to identify the claimed items more precisely. It is convenient for the time being to refer to the items claimed by Ridge Estate as the Annexure A Items. Before identifying the issues, it is appropriate to outline some aspects of the factual setting. To an extent this involves a repetition of some findings already made.

The factual setting for the equipment claim

616    On 17 February 2016, FPH, as trustee of the PRT, entered into the contract to purchase Lot 2. The purchase price was $750,000 with a deposit of $30,000 and settlement was due on 8 April 2016. The contract became unconditional on 9 March 2016.

617    As previously noted, it was Steven who wished to purchase Lot 2 because it adjoined Lot 1 but he had the difficulty of being bankrupt and the vendors being “unfriendly” towards him. Accordingly, he negotiated with Dr Hamilton to be the purchaser. This was achieved by FPH being appointed trustee of the newly established PRT and by FPH entering into the contract on 17 February 2016 to purchase Lot 2.

618    When the contract to purchase Lot 2 was made, Steven had proposed using the equity which Ridge Estate held in Lot 1 to provide security for a loan from NAB. I am satisfied that that was so despite Steven’s initial denial that that had been the case. However, in the events which happened, NAB said initially that it was prepared to lend $525,000 secured on Lot 2 only, together with the guarantee from Dr Hamilton. In order to make up the shortfall, Steven and Dr Hamilton sought, and obtained, the loan of $182,130 for three years from NAB secured over the Annexure A Items which, subject to some exceptions which it is not necessary to identify presently, had hitherto been owned by Ridge Estate. It is the means by which these items came to be the security provided by FPH which gives rise to Ridge Estate’s present claim.

619    In early November 2018, after the breakdown in the relationship between Dr Hamilton and Steven, Dr Hamilton attended at Lot 1 and took possession of the Annexure A Items. Steven considers that he acted in an underhand way in doing so. Subsequently, Dr Hamilton sold most of these items. He applied the proceeds in reduction of the indebtedness of FPH to NAB in respect of the Equipment Loan and in payment of other expenses of PRT.

620    As already noted, Ridge Estate now asserts that the Annexure A items were transferred by it to FPH in circumstances obliging FPH to pay $240,713 for them.

621    FPH and Dr Hamilton agree that the Annexure A items were transferred by Ridge Estate to FPH in early April 2016 in order to allow it provide the equipment mortgage to NAB. They dispute, however, that FPH agreed, by contract or otherwise, to pay the sum of $240,713 in Ridge Estate’s invoice. Their claim is, in effect, that the Annexure A items were transferred to FPH for no consideration in order that it could provide the required security to NAB.

622    I think it fair to say that neither the claim to the Annexure A Items, nor the defence to it, are well pleaded. However, the principal remaining issue relating to the claim is whether FPH agreed to pay for the Items.

The provision of the Equipment Loan

623    As previously noted, Steven had contemplated that the equity of Ridge Estate in Lot 1 would be used to provide security for the loan from NAB with which Lot 2 would be purchased. However, the necessary application to NAB, and its obtaining of a valuation of Lot 1 for mortgage lending purposes, were not pursued in a timely way. The reasons for this were not made clear but the evidence does indicate that it was Steven, and not Dr Hamilton, who had the carriage of the steps towards settlement.

624    The consequence was that, by the evening of 5 April 2016, it was apparent that the scheduled settlement of the purchase of Lot 2 on 8 April was in jeopardy.

625    The precipitant for a flurry of activity on 6 April appears to have been an email from Mr Bierbaum to Dr Hamilton at 4.47 pm on 5 April 2016. He attached the guarantee and indemnity which Dr Hamilton would be asked to execute the following morning, confirmed that NAB would be advancing $525,000 for the settlement and said that this meant that FPH would have to provide “circa $225K”. Mr Bierbaum raised in his email the possibility of Dr Hamilton providing security over his own home for an additional advance.

626    This information seemed to come as a surprise to Dr Hamilton as he responded later that evening, querying why Lot 1 was not providing security for the whole of the funds and indicating that he would not provide his own home as security. Mr Bierbaum responded later on 5 April 2016, confirming NAB’s position, but pointing out that a valuation of Lot 1 would be required before it was taken as security and that this would take “additional time”.

627    The evidence indicates that Mr Beirbaum, Dr Hamilton and Steven met at 10 am on 6 April 2016. The actual evidence of what was discussed at the meeting is scant, but it can be inferred that there was agreement that the possibility of a loan from NAB, secured over items which became the Annexure A Items, should be explored urgently. There is no suggestion in the evidence that Dr Hamilton agreed at that meeting that FPH would purchase the Annexure A Items.

628    Steven said, and I am willing to accept, that Tony Bierbaum attended at Lot 1 and that, together, they drew up a list of the items which could be provided to NAB as security. That must have occurred in the late morning of 6 April 2016. I am also satisfied that Mr Bierbaum must, either before or after this attendance, have sought evidence as to the value of the listed items. In order to satisfy that requirement, Steven sought urgently from the entities from which Ridge Estate had acquired the equipment originally, copies of the invoices relating to their purchase. He provided copies of those invoices to Mr Bierbaum at 1.12 pm, 1.20 pm, 1.44 pm and 2.12 pm on 6 April 2016. At 2.27 pm, Dr Hamilton sent an email to Mr Bierbaum listing four items owned by FPH which could also be used as security.

629    The 6 April Invoice on which Ridge Estate relies for this claim was addressed to FPH. It listed 26 items (which for the most part are the Annexure A Items) with a dollar amount for each. Those dollar amounts were drawn from the invoices supplied to Ridge Estate earlier that afternoon by the original suppliers of the equipment to Ridge Estate. The total dollar amount in the invoice is $240,713.

630    I am satisfied that Steven either prepared the 6 April Invoice himself, or caused it to be prepared. That is so for a number of reasons: first, as Steven acknowledged, the list of items of equipment was drawn from the list which he had prepared with Mr Bierbaum earlier that day; secondly, the dollar amounts for each item of equipment were drawn from the copy invoices which Steven had requested the original suppliers of the items to provide to Ridge Estate earlier that day and at least one of those had not been copied by Steven to Dr Hamilton; thirdly, apart from Steven’s evidence which I do not accept, there is no evidence at all that Dr Hamilton had any involvement in the preparation of the invoice; and fourthly, the immediate recipient of the email from Steven providing the 6 April Invoice was Mr Bierbaum.

631    Steven provided the 6 April Invoice to Mr Bierbaum on 6 April 2016 at 3.09 pm (at the same time copying it to Dr Hamilton, to Steven’s wife Gillian, and to Philip). In the accompanying email, Steven asked Mr Bierbaum “let me know that you have want you need”. This is consistent with Steven’s agreement in his evidence that he had been the one in contact with Mr Bierbaum in relation to the Equipment Loan.

632    On the following day 7 April 2016, at 4.20 pm, NAB sent an email to Dr Hamilton confirming its willingness to make the Equipment Loan. Later still on 7 April 2016, Steven sent an email to Dr Hamilton attaching a copy of the 6 April Invoice under the subject line “insurance or cover note”. I am satisfied that he provided the invoice to Dr Hamilton at that time in order to provide him with documentary evidence of the items and their value so that FPH could, in accordance with the terms of the equipment mortgage, obtain insurance over the items.

633    On the following day, Dr Hamilton as director of FPH signed the Equipment Loan mortgage with NAB for $182,130, as well as the other documents so as to allow the settlement to proceed.

Aspects of Steven’s evidence

634    Much of Steven’s evidence about the Equipment Loan was unsatisfactory.

635    At one stage, Steven said that it was “never an option” for Lot 1 to be used to provide the security in respect of the purchase of Lot 2. Later, however, he acknowledged that he and Dr Hamilton had discussed the provision of Lot 1 as security for the purchase of Lot 2 but then said that he did not remember that. Later again, when confronted with his contemporaneous emails, Steven acknowledged that all his discussions with Mr Bierbaum about the provision of finance had involved Lot 1 being used as security. There was also an email to another prospective financier on 22 February 2016 and email exchanges with Dr Hamilton in which Steven had referred to using Lot 1 as security. He also acknowledged that he had consented to NAB obtaining a valuation of Lot 1 with a view to an assessment of it suitability as security. Indeed, at one stage, Steven acknowledged that he had lied to Dr Hamilton in telling him that Lot 1 would be available as security for the NAB loan.

636    Steven said that he could not remember whether Mr Bierbaum had told him that he could not accept security which was not owned by FPH as trustee of the PRT but maintained that it was Dr Hamilton who had asked him to put the list of items into an invoice.

637    The following excerpt of evidence indicates that, initially Steven disclaimed involvement in the arrangements for the Equipment Loan but later acknowledged that he was the person who, on behalf of Ridge Estate, was involved in discussing the arrangement by which the Annexure A Items would be provided to NAB as part of the security:

XXN:        So you were involved at the time in respect of this transaction?

A:    No, I wasn’t. Tony Bierbaum, who represented both Ridge Estate and [FPH], was invited onto the property to collect all the ID numbers of the equipment, and that was the last we ever heard of how that ended up transpiring, and I knew that it was held as security. I didn’t realise that it was – and that’s why the property is all still on our – on our property.

HH:    Now, somehow or other these items of equipment came to be provided to NAB as security in what has been called in these proceedings the Equipment Loan. Am I right so far?

A:    Yes. It was – yes.

HH:    Were you, on behalf of Ridge Estate, the person who was involved in discussing the arrangement by which these items of equipment would be provided to NAB as part of that security?

A:    Yes.

638    The contemporaneous documentary evidence, to some of which I have already referred, confirms Steven’s extensive involvement. It is plain that he was the human actor on behalf of Ridge Estate. The copying of his emails to Philip confirms that in doing so he was acting with the implicit, if not explicit, authority of Philip as director of Ridge Estate.

639    Steven’s evidence about the agreement he alleged with Dr Hamilton was unsatisfactory:

XXN:    And what was your understanding of the arrangement between Ridge Estate and [FPH] in relation to these items of equipment?

A:    That it was standing as security for Lot 2 purchase because Lot 2 was wholly owned by the Van Niekerk family and [PRT].

…

HH:    As opposed to … a question of what your understanding was, can you tell me what it is you actually agreed with Dr Hamilton with respect to the provision of these items as security for the equipment loan?

A:    I agreed with NAB that they could put a charge over it to hold them as security for the loan of Lot 2.

HH:    And did you agree anything with Dr Hamilton?

A:    That was the same.

XXN:    There was never an agreement between yourself and Dr Hamilton that he would pay for the equipment or Fairfield would pay for the equipment, was there?

A:    He – he should have paid for it if he was going to take it, but he wasn’t going to take it.

XXN:    There was never an agreement between the two of you on behalf Ridge Estate and [FPH] that the equipment was going to be paid for, was there?

A:    There was an invoice done where the money from NAB should have come to Ridge Estate and then Ridge Estate should have put that money into the lot 2 deal purchase, and that never happened.

HH:    Did you discuss with Dr Hamilton the preparation of an invoice?

A:    Yes. He asked for it.

HH:    Tell me what was said between the two of you in relation to the preparation of the invoice?

A:    If [FPH] was to own this, you need to pay for it, but if it’s my equipment that we’re putting up as security, then I understand that Ridge Estate would need to sign something with NAB to put that up as security. And we never signed anything with NAB, and he did take the equipment. So he didn’t pay for it.

640    This evidence of Steven concerning the agreement he said he had made with Dr Hamilton was implausible and unconvincing. The context in which it was given indicates its self-serving nature.

641    Steven claimed that there had been a discussion between himself and Dr Hamilton in which Dr Hamilton had requested the preparation of the 6 April 2016 invoice; that Dr Hamilton had asked for the invoice in order to show FPH’s ownership; and that he and Dr Hamilton had specifically discussed that if there was to be an actual transfer of ownership, it needed to be paid for. He claimed that there was a verbal agreement that FPH would have to pay for the equipment if Ridge Estate was putting it up as security for the purchase of Lot 2. This evidence was implausible. Steven acknowledged that he had not said anything at all in the affidavit containing his evidence in chief about offering an option to Dr Hamilton to pay for the Annexure A Items if it was to become the property of FPH. He also acknowledged that he had mentioned this part of the arrangement for the first time in the witness box. I had the strong impression that Steven had invented this evidence in an attempt to advance the respondents’ claims with respect to the Annexure A Items.

642    Other implausible evidence given by Steven was that it was Mr Bierbaum who had suggested the values for each item of equipment in the 6 April Invoice. This made no sense given that Steven had then moved quickly to obtain copies of the invoices for the original supply of the items of equipment.

643    Ridge Estate’s claim in respect of the Annexure A Items had an opportunistic quality about it. Steven acknowledged that the first time Ridge Estate had made a claim with respect to the items was when they had retained solicitors soon after the applicants’ commencement of proceedings. He said that this because no one had previously come round to fetch it so that in our eyes “it hadn’t transacted”.

644    For these reasons, together with my general adverse view about Steven’s credibility, I am not willing to regard his evidence concerning the equipment loan as reliable.

Conclusion regarding FPH’s liability to pay for the Annexure A Items

645    There are in effect two alternatives: Ridge Estate and Dr Hamilton agreed that Ridge Estate would transfer the Annexure A Items to FPH in consideration of payment of $240,713, or the parties agreed that it would do so for no consideration.

646    The question of whether there was agreement between Steven and Dr Hamilton that FPH would pay for the Annexure A Items is to be determined objectively: Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24, (1982) 149 CLR 337 at 352; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52, (2004) 219 CLR 165 at [36]-[41].

647    In my view, a number of matters indicate that, in the flurry of activity on 6 and 7 April 2016 directed to achieving settlement on Lot 2 on 8 April 2016, Ridge Estate (through Steven) did transfer the Annexure A Items to FPH, in its capacity as trustee of the PRT in order that FPH could complete settlement on Lot 2, but did so without any agreement that FPH would pay the amount of $240,713 in the 6 April 2016 invoice. That is to say, there was agreement on a transfer for no consideration.

648    First, Steven knew that Ridge Estate was not itself taking out the equipment mortgage, and was not itself providing security to NAB in respect of the Equipment Loan, for example, to support a guarantee. It is highly likely, and I so find, that Steven knew that NAB required the security to be provided by its borrower. In order to provide the chattel mortgage with respect to that equipment, FPH, in its capacity as trustee of the PRT, had to own the equipment. It could not mortgage equipment which it did not own. The terms of the equipment mortgage entered into by FPH with respect to the equipment required it to declare that it was “the only person who has any rights or interest in the goods” and that it “the right to grant a security interest in the goods”. It must have been obvious to Steven that FPH could provide the security only with respect to property actually owned by it. That explains why he provided, not just a list of the Annexure A Items to NAB, but a list in the form of an invoice to FPH with respect to those items. The invoice was to satisfy NAB that there had been a transfer of the items to FPH in its capacity as trustee of the PRT. Steven sought to make it appear that the items were being sold to FPH but, considered objectively, that was not the parties’ intention. I reject as dishonest Steven’s evidence that he had agreed with Dr Hamilton that FPH would pay for the items. Considered objectively, it is implausible that Dr Hamilton would have done so. FPH was doing Steven and Ridge Estate a favour: there is no reason to suppose that it intended to bind itself to pay Ridge Estate $240,713 in order to do so especially as Ridge Estate retained the use of the equipment.

649    Secondly, it is pertinent that the 6 April Invoice did not contain any terms of sale or provide for the time or means of payment. That is consistent with Ridge Estate not having any expectation that FPH would have to pay it the amount of $240,713.

650    Thirdly, it is to my mind very pertinent that Steven provided the 6 April invoice to Dr Hamilton at the same time as he provided it to Mr Bierbaum at NAB and, indeed, that NAB was the primary addressee on his email. This is indicative that Steven was not providing evidence of a transaction into which FPH and Ridge Estate had entered antecedently.

651    Fourthly, when Steven did provide the 6 April Invoice to FPH separately on 7 April 2016, he did so in order that it could comply with the requirements of the chattel mortgage to NAB that it insure the items. He thereby confirmed that property in the items had passed to FPH, as without that FPH would not have had an insurable interest. FPH did insure the items and did so in the manner consistent with it being the owner of the items.

652    As counsel for the applicants submitted, whether Steven intended subjectively to transfer the Annexure A Items to FPH for no consideration is immaterial. The matter is to be determined objectively. On my assessment, and having regard to the findings above, I am positively satisfied that there was no agreement that FPH was to pay for the Annexure A Items, let alone pay the prices listed in the 6 April 2016 invoice. In my view, this is a matter on which the respondents have seized in retrospect following the breakdown of the relationship between Steven and Dr Hamilton in late 2018.

653    Accordingly, the respondents’ cross-claim with respect to the Annexure A Items is dismissed. This conclusion makes it unnecessary to identify the items more particularly or to address the respondents’ other submissions with respect to the claim.

Summary

654    I summarise my conclusions with respect to the applicants’ claims as follows:

(a)    the applicants’ claims of misleading or deceptive conduct by Steven and Ridge Estate, and in which Philip is alleged to have been an accessory, in relation to the consulting arrangement for the pursuit of the Fairfield Pastoral Model fail;

(b)    the applicants’ claims that the various appointments and transactions concerning Steven and Ridge Estate are shams fail;

(c)    the applicants’ claims for restitution of the amounts paid to Ridge Estate in respect of consultancy fees, motor vehicle expenses and other expenses fail;

(d)    FPH No 1 is entitled to an order for the delivery up of the items described as the FPH No 1 Items, being the items listed in Annexure B to the 5SC;

(e)    FPH No 1’s claim for $82,321.70 which is said to be the balance of loans to Ridge Estate fails;

(f)    FPH No 1 is entitled to judgment in the sum of $195,000 inclusive of interest, against Steven on the secret commissions claim;

(g)    FPH is entitled to a declaration that the Removal Deed made by Brenda on 4 October 2018 is void;

(h)    FPH is entitled to indemnity from the assets of the PRT in the sum of $314,741.95, but account must be made of the $122,000 applied by FPH in discharging the Whale Beach Loan when it has not proved in these proceedings that that was a liability which it incurred in its capacity as trustee of the PRT;

(i)    FPH’s claim against Ridge Estate in respect of the insurance proceeds paid to Ridge Estate in 2016 and 2017 fails;

(j)    FPH is entitled to judgment against Ridge Estate in the sum of $37,720, being the unpaid balance of the price for the sale of cattle;

(k)    FPH’s claim in respect of agistment fees fails; and

(l)    FPH’s claim for payment of a portion of the licence fees paid by Mr Bayes fails.

655    On the respondents’ cross-claim:

(a)    Ridge Estate’s claim for payment of $240,713 in respect of the items in the 6 April 2016 invoice fails; and

(b)    all remaining claims in the cross-claim (which were not pursued) will be dismissed.

656    The circumstance that FPH has discharged the Whale Beach Loan from the proceeds of sale of an asset of the PRT without establishing that the Whale Beach Loan was a liability it incurred in its capacity as trustee of the PRT creates a difficulty. If it be the case that the $122,000 was not a liability of FPH incurred in its capacity as trustee of the PRT, FPH should not be able to retain the benefit of that payment.

657    However, there is some indication in the documents which the respondents obtained by notice to produce during the trial, and to which Steven was a party, that FPH did take out the Whale Beach Loan in its capacity as trustee for the PRT. There would be injustice in that event if FPH is not entitled to the benefit of the $122,000 paid to discharge the Whale Beach Loan.

658    As I will make a declaration that the Removal Deed was void, FPH will continue for the time being as the trustee of the PRT. This means that there is no other entity to which the Court could presently order payment of the sum of $122,000. Counsel for the applicants has hinted at further litigation by FPH with a view to vindicating a claim that the Whale Beach Loan was incurred by FPH in its capacity as trustee of the PRT. The Court is not presently in a position to determine the merit of any claim to that effect nor the viability of any proceedings which FPH may bring to that effect.

659    In all these circumstances, I take the view that the Court should not now prejudice the means by which FPH may recover the sum of $122,000 if it is able to vindicate its entitlement to that sum. A practical way in which to proceed is as follows.

660    The deduction of $122,000 from the sum of $395,178.36 (the amount paid in the Court) leaves a balance of $273,178.36. That sum can be taken as the aggregate of FPH’s entitlement to indemnity and for reimbursement of the additional costs of the judicial sale of Lot 2 ($6,564.80). It is less than the sum of $314,741.36 which on my findings is FPH’s entitlement to indemnity. Accordingly, the sum of $273,178.36, plus the interest accrued on that amount, should be paid out of the funds held in Court to FPH. I will hear from the parties as to whether some of that amount should be paid directly to Mr Lorefice.

661    The remaining $122,000, plus the interest accrued on that portion of the monies held in Court, should, subject to further order of the Court, continue to be held in the Court’s Litigants’ Fund to the credit of this action. My intention is to give FPH the opportunity in other proceedings to vindicate its entitlement to that sum. As I have said, I am making no comment as to the viability of such an action, given FPH did not pursue the claim in these proceedings. If no proceedings are current as at 4 April 2022, any other person with an interest in the monies may apply for an order for payment out. If proceedings are current, FPH or the respondents may seek an extension of the time in which the monies are to continue to be held, pending the determination of those proceedings. At the conclusion of those proceedings, the same persons or entities may apply for an order for payment out in accordance with the determination of the issue in those proceedings.

Disposition

662    For the reasons given above, I make the following declarations and orders.

Declarations

(1)    The Deed of Appointment and Removal of Trustee (the Removal Deed) made on 4 October 2018 by Brenda Van Niekerk (the Fourth Respondent), is a conveyance which was made with the intent to defraud creditors within the meaning of s 86 of the Law of Property Act 1936 (SA).

(2)    The Removal Deed is void.

(3)    All conveyances of property effected by the Removal Deed are void.

(4)    The items listed in Annexure A to the Fifth Statement of Claim and described as the Fairfield Items were, at all material times from on or about 8 April 2016, the property of Fairfield Pastoral Holdings Pty Ltd (FPH) until such time as they were sold or transferred by it.

(5)    FPH, in its capacity as trustee of the Piney Ridge Trust, is entitled, subject to account being taken of its use of $122,000 to discharge the Whale Beach Loan, to be indemnified from the assets of the Piney Ridge Trust in an amount of $314,741.95.

Orders

(1)    The First, Second and Third Respondents (Ridge Estate Pty Ltd, Steven Van Niekerk and Philip Van Niekerk) are collectively or individually to deliver up to the Second Applicant, Fairfield Pastoral Holdings No 1 Pty Ltd (FPH No 1), by 31 January 2022 the items listed in Annexure B to the Fifth Statement of Claim.

(2)    There be judgment for the Second Applicant (FPH No 1) against the Second Respondent (Steven Van Niekerk) on the secret commissions claim in the sum of $195,000 inclusive of interest.

(3)    There be judgment for FPH No 1 against Ridge Estate Pty Ltd on the cattle purchase claim in the sum of $42,720 inclusive of interest.

(4)    Of the sums held by the Court in the Litigants’ Fund in relation to this Action, $273,178.36, together with the interest accrued on that amount, be paid out to FPH in part satisfaction of its claim to indemnity.

(5)    The remaining amount held by the Court in the Litigants’ Fund continue to be held in the Litigant’s Fund, subject to the following orders:

(a)    if there are current proceedings in a Court at 4 April 2022 concerning the question of whether FPH took out the Whale Beach Loan in its capacity as trustee of the Piney Ridge Trust (Other Proceedings), FPH or the Respondents may apply to a Judge of the Court for an extension of the period in which the funds are so held, pending the determination of the Other Proceedings;

(b)    at the conclusion of the Other Proceedings, any person with an interest in the sum held in the Court may apply to a Judge of the Court for an order for the payment out of that sum; and

(c)    if at 4 April 2022, there are no Other Proceedings, any person with an interest in the sum held in Court may apply for an order as to its payment out.

(6)    All other claims of the Applicants be dismissed.

(7)    All remaining claims in the Respondents’ Cross-claim be dismissed.

(8)    I will hear from the parties as to whether any order should be made for payment of some portion of the sum of $273,178.36 to Mr Roberto Lorefice.

(9)    I direct the Registrar of the Court to refer a copy of this judgment, in particular the portion concerning the secret commissions, to the Director of Public Prosecutions in New South Wales.

(10)    I will hear from the parties with respect to costs.

Associate:

Dated:    4 January 2022

SCHEDULE OF PARTIES