Federal Court of Australia

Yammine v Lantrak Holdings Pty Ltd (No 2) [2023] FCA 162

ORDERS

THE COURT ORDERS THAT:

1.    The respondents pay the applicants $8,730,000 (being $7,250,000 together with prejudgment interest to today).

2.    Subject to order 3, the respondents pay the applicants’ costs.

3.    If any party files and serves written submissions limited to two pages together with evidence in support on or before 10 March 2023:

(a)    order 2 be stayed until further order;

(b)    the opposing party file and serve written submissions limited to two pages and any evidence on or before 17 March 2023; and

(c)    costs be reserved and, unless the Court otherwise orders, determined on the papers.

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

REASONS FOR JUDGMENT

RARES J:

Introduction

1    Samuel Goldwyn, the Hollywood movie mogul, is credited with saying that “a verbal contract isn’t worth the paper it’s written on”. This case seeks to test that aphorism. A common experience of negotiations is that an individual on one side believes that he or she has agreed to a deal with the other side that is not reflected in any documentation of the transaction. How that mistaken perception occurs may give rise to a legal, equitable or statutory remedy for the apparently mistaken side. The position becomes more complicated when those involved in the negotiations are in a non-fiduciary, but nonetheless pre-existing, close or trusting business relationship, as in this proceeding.

2    The two individual principals are the first applicant, Norman Yammine, with the second applicant, his company, NJA Pty Ltd (collectively the Yammine parties), and the second respondent, Gary Liemant (to whom I will refer in these reasons as Mr Liemant to distinguish him from his brother, Mark Liemant, who is not a party to this proceeding) and the first respondent, Lantrak Holdings Pty Ltd (collectively the Liemant parties). Mr Yammine negotiated about three actual or perceived deals personally with Gary Liemant on behalf of his brother and their associated entities.

3    It is common ground that the first deal occurred without a written contract. Mr Yammine agreed with Gary and Mark Liemant that he and they would become 50% shareholders (through NJA, as trustee of the NJA family trust, and Lantrak Holdings) in a new company, Lantrak NSW Pty Ltd, that was incorporated on 20 December 2016, and that it would acquire and operate Mr Yammine’s transport logistics business that he conducted through Recycling and Transport Solutions Pty Ltd (RTS) in consideration of a payment to Mr Yammine (or an associate) of $5 million.

4    I will oversimplify the details of the second deal in the summary below. It is the principal focus of this proceeding. It occurred in late 2018 and was, on the Liemant parties’ case, wholly in writing or, on the Yammine parties’ case, partly in writing. Previously, on 13 September 2018, after detailed negotiations with the assistance of professional advisors on both sides, the Yammine parties, the Liemant parties and other associated entities had entered into a written non-binding heads of agreement. The heads of agreement contemplated the sale by the Yammine parties and their associated entities of their 50% interest in the transport solutions business then operated through Lantrak NSW (to which the parties had given the value of $35 million in the negotiations for the heads of agreement) together with other assets, for a total consideration of $47.5 million. However, the second deal did not reflect the heads of agreement. Instead, it involved the Yammine parties transferring their 50% of the shares in Lantrak NSW and certain other assets for a total consideration of $13 million, as provided in the written sale and purchase agreement that the parties and their other associated entities executed on 12 November 2018.

5    The Liemant parties say that the sale agreement contained all the terms of the second deal and that they performed all their obligations under it and, accordingly, have no further liability to the Yammine parties.

6    On the other hand, the Yammine parties contend that, in a telephone call on about 9 October 2018 (the 9 October conversation), Mr Liemant informed Mr Yammine that the Liemant parties would not be able to pay $35 million for his 50% interest in the transport solutions business as previously contemplated. The Yammine parties contend that both in the 9 October conversation and after, Mr Liemant made and affirmed a collateral contract, a representation as to a future matter for the purposes of ss 4 and 18(1) of the Australian Consumer Law (ACL) in Sch 2 of the Competition and Consumer Act 2010 (Cth), that he or the Liemant parties would pay the Yammine entities the difference between $10 million clear of taxation liabilities and $35 million if they proceeded on the terms of what later became the sale agreement. In the event, that difference was $22 million.

7    The third, again disputed, deal involved Mr Yammine’s claim that, on about 11 October 2019, he and Mr Liemant agreed that Mr Yammine would not require Mr Liemant to honour his oral promises to pay the $22 million if Mr Liemant or the Liemant entities paid him $10 million, in consideration of which Mr Yammine and his entities would enter into an agreement for a term of 10 years not to compete with the business of Lantrak NSW (which the Liemant parties by then wholly owned).

8    This is the context in which the following four issues arise, namely:

(1)    did the Liemant parties, or either of them, enter into an oral collateral contract to pay the Yammine parties $22 million in consideration of the Yammine parties agreeing to sell their 50% interest in the transport solutions business and Lantrak NSW (the collateral contract issue);

(2)    are the Liemant parties, or either of them, estopped from denying that they, he or it promised to pay the Yammine parties $22 million in consideration of the Yammine parties executing the sale agreement (the estoppel issue);

(3)    did the Liemant parties, or either of them, make a representation in trade or commerce to the Yammine parties that was misleading or deceptive or likely to mislead or deceive with respect to a future matter in contravention of ss 4 and 18(1) of the ACL (which I will compendiously refer to as misleading or a misleading representation) that if the Yammine interests entered into the sale agreement, the Liemant parties, or one of them, would pay the Yammine parties $22 million (the misrepresentation issue); and

(4)    did the Liemant parties, or one of them, agree with Mr Yammine on about 11 October 2019 that neither he nor any of his entities would compete with the business of Lantrak NSW for a period of 10 years in consideration of the Liemant parties paying him $10 million (the non-compete contract issue)?

The two principal witnesses

9    Mr Yammine grew up in difficult circumstances and at the age of 8 was diagnosed as suffering from epilepsy. As a young man he was convicted of an offence for which he served a substantial jail sentence. He became a devout Christian. Once he was released from prison he began working as a labourer for his cousins in a large excavation company, Moits, in Sydney. He learnt how that business operated and perceived that there was a gap in the market for transport logistics. He noticed that Moits would hire trucks from many different people to cart excavated material away from development sites. After he married in about 2012, he and his wife, Joanne Mikhael, began a logistics business called Nojo, an acronym of their first names, Norman and Joanne. Nojo provided trucks to carry excavated material to landfill sites and its first client was Moits. Nojo attracted other customers in the excavation business and grew. In late 2015, Mr Yammine commenced trading through RTS as a new business providing road haulage of earth waste, soil and other materials.

10    Mr Liemant and his brother, Mark, conducted the Lantrak group, that operated, prior to 2016, in Victoria and Queensland. The Lantrak group’s predominant business was to dispose of volumes of material for its clients, to act as broker in the civil construction industry for dirt and clean fill materials and to undertake land reclamation projects. Mark Liemant did not give evidence because he was not relevantly involved in the dealings that Gary Liemant had, on behalf of the Lantrak group, including his brother, with Mr Yammine.

11    Gary Liemant was in his mid-50s when he met Mr Yammine (who was in his 30s). Mr Liemant was an experienced, astute and successful businessman.

12    As I will explain below, each of Mr Yammine and Mr Liemant gave evidence that, in particular instances, caused me to give close consideration to his credibility and reliability. In evaluating their evidence, and that of the other witnesses, I have acted on the principles that Dowsett, Rares and Logan JJ summarised in Julstar Pty Ltd v Hart Trading Pty Ltd [2014] FCAFC 151 at [72]–[74] as follows:

72    In order to determine whether conduct was misleading or deceptive for the purposes of s 52 of the Trade Practices Act and its analogues, the Court must engage in a close analysis of all the circumstances of the transaction: Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 at 84 [99]-[100] per Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ; Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 at 604-605 [36]-[40] per Gleeson CJ, Hayne and Heydon JJ; Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 at 384 [91] per Heydon, Crennan and Bell JJ. As the Court said in Campomar 202 CLR at 85 [102], in approving what Gibbs CJ had said in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 at 199:

“the legislation did not impose burdens which operated for the benefit of persons ‘who fail[ed] to take reasonable care of their own interests’. In the same case, Mason J concluded that, whilst it was unlikely that an ordinary purchaser would notice the very slight differences in the appearance of the two items of furniture in question, nevertheless such a prospective purchaser reasonably could be expected to attempt to ascertain the brand name of the particular type of furniture on offer [Puxu 149 CLR at 210-211].” (emphasis added)

73    Importantly, in this case, the witnesses gave their evidence over five years after the events and alleged representations the subject of the litigation in circumstances where Mrs Stariha had not raised any complaint until bringing the proceedings in 2011. That was a considerable period after each of the two purchases had completed. The assessment of the evidence of witnesses in such a case, ordinarily, will be approached in the manner discussed by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319 as follows:

“Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously described as “misleading”) [sic] within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (or s 42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.

Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not … attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712.

Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a causes of action based on s 52 of the Trade Practices Act 1974 (Cth) … in the absence of some reliable contemporaneous record or other satisfactory corroboration.” (non-italic bold emphasis added)

74    That caution is also reflected in s 140 of the Evidence Act 1995 (Cth) and in what Dixon J said in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363 about the standard of proof. Dixon J emphasised that, when the law requires proof of any fact, the Court must feel an actual persuasion of its occurrence or existence before it can be found. He said that a mere mechanical comparison of probabilities, independent of any belief in its reality, cannot justify a finding of fact: see too Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 at 479-482 [29]-[38] per Weinberg, Bennett and Rares JJ. As Dixon J said (60 CLR at 362): “In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences”. But, the nature of the fact to be proved necessarily affects the sufficiency of the evidence by which it can be established.

(underline emphasis added; other emphasis in original)

13    In assessing the witnesses’ oral evidence, and in particular, whether Mr Yammine and Mr Liemant entered into an oral agreement, or Mr Liemant made a representation, in trade or commerce, that was misleading or deceptive, based in part on oral evidence over three years after the negotiations that occurred, both sides referred to the approach of Tamberlin J, as a trial judge, in dealing with a case involving conversations that occurred seven or eight years before the trial with which Gleeson CJ, Gaudron, Kirby and Hayne JJ found no fault in Effem Foods Pty Ltd (t/as Uncle Ben’s of Australia) v Lake Cumbeline Pty Ltd (1999) 161 ALR 599 at 603 [16]. Their Honours summarised, as an appropriate approach, what Tamberlin J did in forming views as to the credibility of each of the relevant witnesses, namely:

In each case those views were based in part upon observations made, and impressions formed, concerning the demeanour of the witnesses, but they also turned in part upon reasoning as to the plausibility of certain parts of the evidence of the witnesses, considered in the light of what Tamberlin J had referred to as “the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence”. This was an orthodox and sensible approach to the matter (As to the approach to be taken by an appellate court when reviewing a primary judge's findings of fact, see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (1999) 160 ALR 588; 73 ALJR 306).

(emphasis added)

Background

The formation of Lantrak NSW

14    The unaudited financial statements of RTS for the year ended 30 June 2016 showed that it had gross receipts of about $12.65 million and recorded a net profit before tax of about $770,000.

15    In 2016, Mr Yammine considered that RTS was flourishing. He became aware that Gary and Mark Liemant were seeking to expand their business into the Sydney market and in about October or November 2016 met with them in Sydney. Mr Yammine took them on a tour of places where RTS operated. He understood that the Lantrak group operated a different business model from that of RTS because RTS owned the trucks which it provided to carry out the work for its customers. Mr Yammine said (and I accept) that of the two brothers, Mark Liemant was the “more reserved at the time, but Gary’s more, ‘Look, let us get the numbers, and let’s get down there’”. They arranged that Mr Yammine, his accountant, Fred Kalil, and his associate, would meet Mark and Gary Liemant soon after at a restaurant in the Crown Casino in Melbourne.

16    At the Melbourne restaurant, the brothers asked Mr Yammine how much he wanted for RTS and he replied that he was seeking $10 million. Mr Liemant told Mr Yammine that they had the Lantrak brand but that it had no presence in Sydney and wanted to keep Mr Yammine involved in the business there. Mr Yammine thought that the combination would help the Sydney business grow. They struck a deal with the elements that, first, RTS’ business would be transferred to a Lantrak branded company (which in the event was Lantrak NSW) and, secondly, Gary and Mark Liemant would pay Mr Yammine $5 million for 50% of his business, $2 million of which was payable immediately and the balance, in his words, “by way of earnout”. However, as Mr Liemant said in evidence, “that agreement never completed. Lantrak [Holdings] actually never purchased the RTS entity”. Moreover, Mr Yammine did not receive $5 million.

17    As Mr Liemant said in his evidence, he did not want to acquire 100% of the business because Mr Yammine’s continuing involvement was important to the success of the Lantrak group’s venture into the New South Wales market. He was conscious of their previous failed attempt to enter that market at about the time of the Sydney 2000 Olympics.

18    Mr Liemant said that in fact, the initial payment of $2 million due to Mr Yammine was funded out of Lantrak NSW’s cash flow. Mr Liemant agreed that, in economic terms, that meant that, because Lantrak Holdings owned half of the new business, Mr Yammine was paid only $1 million, received no further payment and that “the first deal didn’t complete”. Mr Liemant said that the parties (in the sense of the Lantrak group and Mr Yammine’s interests) had changed from:

the original agreement, [where] it was proposed that we would buy 50 per cent [of the] shares in RTS. What ultimately transpired is we decided to create a new company … for tax purposes [so that] … Lantrak NSW had an element of both entities that combined together. So it brought RTS’ personnel, front-end revenue … and Lantrak’s back-end systems, funding, ability to provide finance.

19    Mr Liemant agreed that he and Mr Yammine had entered into that substantial transaction without formal documentation. He understood at that time that Mr Yammine had had a limited formal education and that he trusted Mr Liemant. While Mr Liemant did not accept that Mr Yammine saw him as a father figure at the initial stage of their relationship, he agreed that he later understood that was how Mr Yammine regarded him. Mr Liemant gave this evidence that I did not find frank or credible:

when you did the transaction in relation to the purchase of the first 50 per cent of Lantrak, you quickly came to understand that Mr Yammine was a man who was prepared to do business on a handshake and an oral agreement; you would agree with that? --- No, I don’t.

Well, you reached that understanding at some point, didn’t you? --- No, there was a number of attempts to try and document and formalise the agreement.

Well, I suggest to you, you must have known that Mr Yammine was a man who was prepared to do business on a handshake because you had bought into the New South Wales market and paid $5 million for that and hadn’t put it in writing; that’s right, isn’t it? --- We hadn’t put $5 million in at that point, no.

That’s right. And you did that because you knew Mr Yammine was a man who was happy to operate on the basis of oral agreements; that’s correct, isn’t it? Otherwise, you would have got it in writing? --- Not entirely. There was a number of attempts to try and document the agreement.

(emphasis added)

20    Mr Liemant subsequently said, more credibly:

Yes. But ultimately, you were prepared to proceed on the basis that the Lantrak group, in an economic sense, had 50 per cent of the New South Wales business without there being a written sale agreement? --- Yes, correct.

…

HIS HONOUR: Including a sale agreement that recorded how much money you were going to pay him? --- We agreed on a payment term, yes, at that point.

But it wasn’t in writing? --- No.

…

As you understood it, he was trusting you to honour that? --- Yes.

(emphasis added)

21    Mr Liemant said that, while Lantrak group performed accounting functions for Lantrak NSW, Mr Yammine’s personal relationships were very important to the success of the latter business and he was responsible for winning it work.

22    By the time that the parties had reached this stage of their relationship, it was apparent to Mr Liemant (and through him the Lantrak group) that Mr Yammine was very trusting of him (Mr Liemant), both generally and in their business dealings. Mr Liemant knew that Mr Yammine took him at his word because, in Mr Yammine’s phraseology, “we broke bread”. When pressed in cross-examination about the delay in finalising the transaction documents, Mr Yammine said (and I accept):

They couldn’t have been concerned, because we were already three months into it and no transaction had been done. And we already, I was already, knocking millions of numbers up every month in turnover for the group and the brand.

So were you also concerned that no agreement had been finalised? --- We had broke bread.

Well, leaving that aside, were you concerned - - -? --- No, but I’m just saying - - -

- - - that no agreement had been finalised? --- Well, like I said to you is that we had broke bread and I had left the pencil pushing to the pencil pushers, and I will get on with business and keep moving.

(emphasis added)

23    Thus, because of Mr Yammine’s trust in Mr Liemant’s integrity, Mr Yammine, in effect, had given the Liemant parties half of his business by transferring all of RTS’ operations to Lantrak NSW and then continued to run and expand that business without the Liemant side of the first “deal” actually paying for it. Commercially, from his side of things, Mr Yammine had no protection in writing as to his rights, other than owning 50% of Lantrak NSW and being one of its directors. As Mr Liemant acknowledged in cross-examination, Mr Yammine had been promised $5 million for a half share of RTS’ business and, in economic terms, only ever received $1 million in cash. Yet Mr Yammine continued in the relationship without questioning, or perhaps even understanding, why the Liemant parties had not paid him what, or in accordance with the deal that, they had agreed.

24    Mr Yammine confirmed that he made no claim in this proceeding that he had not been paid $5 million. He said that, in his understanding, Gary and Mark Liemant had paid him $2 million as the first payment for RTS’ business so that, assisted with finance from Lantrak group’s bank, Westpac Banking Corporation, he could use that money to buy a fleet of trucks from a landscape gardening business. Mr Yammine wanted to buy the trucks to use them, branded as Lantrak NSW, to supply Lantrak NSW’s services, but he knew that the Liemant brothers did not operate the Lantrak group as owners of trucks themselves. When Mr Yammine tried to explain this transaction in cross-examination, his unsophisticated and trusting approach to comprehension of his dealings with Gary and Mark Liemant became manifest. He was asked to explain how the first $2 million payment occurred. He said that “in my understanding, it was never a loan, it was the payment, but it was described as a loan because there was no contract”. He said that this payment occurred in about May 2017 after the formation of Lantrak NSW in December 2016. He said:

it was five months later. I was… they still should have been done in December ‘16. And I had already broke bread with Gary and kept moving. You know? I kept just going to work. I know, sometimes, it might sound, you know how do you do these things? And I respect that. I do respect that. But the thing was I trusted him. It could be irrelevant. And it’s my first round, you know? I’m not a groomed businessman. I was a person who believed in him.

(emphasis added)

25    Mr Yammine understood that the $2 million payment “was done by way of a loan and then they were going to fix up the paperwork … because … they didn’t buy shares in RTS”. He explained his understanding that the $3 million balance of the purchase price would be paid to him out of the profits of Lantrak NSW in priority and before the time when it would distribute profits equally between the shareholders.

26    I am not suggesting, and the Yammine parties did not claim, that Mr Liemant or the Lantrak group acted dishonestly or in bad faith in dealing with Mr Yammine in this way. Indeed, the Liemant parties’ lawyer, Andrew Freeman of KNP Solutions, had been corresponding with Mr Yammine’s accountants about drafts of contractual documents to record the first deal. In an email dated 1 March 2017, Mr Freeman wrote “I am yet to hear anything back and am concerned with [the] time this is taking”.

27    By 20 March 2017, Mr Yammine’s solicitors had become involved and wrote to Mr Freeman with substantive corrections to the draft, proposing a differently expressed transaction that, in the event, remained undocumented.

28    The evidence of the parties’ relationship and dealing to this point was demonstrative of Mr Yammine having a degree of commercial generosity and a preparedness (of which Mr Liemant, as a savvy, experienced businessman, was fully cognisant) to rely on what he believed was a “deal” that Mr Liemant (and the Lantrak group) would “honour”. In Mr Yammine’s vernacular, they “broke bread” or shook hands and, for him, because of his trust in Mr Liemant, that was all he needed. This mutual approach to the relationship between Mr Yammine and Mr Liemant is a critical component in the evaluation of what occurred subsequently.

The lead up to the heads of agreement

29    The business of Lantrak NSW grew rapidly, driven by Mr Yammine’s energetic exertions in securing more and more custom. However, from early on in 2017, Mr Liemant expressed concern to Mr Yammine about the new business’ aged trade debtors’ position.

30    Mr Liemant reiterated this concern throughout 2017. But, as Mr Yammine said, ultimately, he ensured that the trade debtors paid, even though some may have done so outside Lantrak NSW’s trading terms. As the financial statements of Lantrak NSW showed, at all relevant times to this proceeding, it had virtually no substantive bad or doubtful debts. This is not to eschew the Lantrak group’s concern over Mr Yammine’s management of Lantrak NSW’s trade debtors. Mr Yammine appears to have trusted the trade debtors to pay eventually, which they did.

31    On 17 November 2017, the Lantrak group’s chief financial officer, Georgina Sumanada, sent an email to Errol Pinto, a qualified accountant who was Mr Yammine’s personal assistant. The email attached the then trade debtors’ ledger which showed that there was then owing about $2.8 million over 90 days past due and another about $1.8 million that would become over 60 days past due on 30 November 2017.

32    Mr Pinto said on several occasions in his evidence that he did not give financial advice to Mr Yammine but that his role was limited to advising on the operation of the business and to act as his personal assistant, including helping by printing and transmitting documents. He said that Mr Yammine told him “to keep out of it because he was dealing direct with Gary”.

33    By 22 January 2018, Ms Sumanada was seeking an indication from Lantrak NSW’s in-house accountant of when it expected to receive payment for over $3.08 million outstanding for over 90 days, and $3.03 million that would become over 90 days past due by 31 January 2018.

34    On 7 May 2018, Mr Liemant met with Mr Yammine and told him that the Lantrak group needed to extend its Westpac facility for trade debtor finance of Lantrak NSW because of the delays in recovering what was due to it.

35    As a result of that meeting, Mr Yammine instructed his then solicitor, Christopher Nehme of Fortis Law Group, to write a letter dated 10 May 2018 to Lantrak Holdings. The letter referred to the meeting of 7 May 2018, the need to extend the Westpac facility and NJA’s willingness (as 50% shareholder in Lantrak NSW) to negotiate for the sale of its shares to Lantrak Holdings and Mr Yammine’s resignation as a director. It proposed that there be a term sheet giving Lantrak Holdings an exclusive right, exercisable by no later than 30 June 2018, to agree and execute transaction documents including, but not limited to, a share sale agreement. In contrast to Mr Yammine’s personal approach to negotiations, his then solicitors’ letter stated:

For the avoidance of doubt, this letter represents only the basis for the negotiation of a formal contractual agreement between NJA and Lantrak (or its nominee). It is not intended to be binding on NJA or Lantrak and acceptance or acquiescence hereafter will not create an enforceable contract.

36    Mr Yammine understood that if the share sale was to proceed, there would need to be formal documentation that, normally, lawyers and accountants would draft.

37    Mr Liemant had two principal concerns at this time: first, his expectation that the Lantrak group would struggle to fund an acquisition of Mr Yammine’s interest and secondly, as he said in chief, “I felt the business depended on Norm to get the sales, and I was very concerned about … Norm not being in the business. How are we going to get the sales?” (emphasis added). Mr Liemant told Mr Yammine that, if he sold his shares, he wanted him (Mr Yammine) to continue being involved in the business.

38    Subsequently, negotiations for a share sale commenced in which Nazih Touma, of Lionheart Legal, acted as the Yammine parties’ solicitor and Mr Pinto assisted Mr Yammine. The Yammine parties’ accepted that their failure to call Mr Touma warrants me inferring, as I do, that Mr Touma’s evidence would not have assisted the Yammine parties’ case: Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at 385 [64] per Heydon, Crennan and Bell JJ; Jones v Dunkel (1959) 101 CLR 298.

39    Mr Liemant said that, in about mid 2018, Westpac indicated that it was no longer prepared to finance Lantrak NSW. He said this occurred in the context of Mr Yammine saying that he wanted to sell his half share. That led, in late May 2018, to Mr Liemant approaching corporate finance advisors, O’Connell Partners, who suggested that Alpha Group might wish to assist in him and Mark Liemant acquiring 100% of Lantrak NSW resulting in Mr Yammine not having any continuing ownership interest.

40    Tony Tromboli was an advisor for Alpha Group. In September 2019, Mr Pinto gave Mr Yammine the following documents which he had received (I infer shortly beforehand) from Mr Tromboli (who, however, I infer, had received them much earlier in about late May or early June 2018 to assist in the work Alpha Group was undertaking):

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

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

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

    an internal Lantrak group balance sheet as at 31 March 2018 showing net assets of about $41.86 million.

41    For completeness, I should also note here that Lantrak NSW’s unaudited financial report for the year ended 30 June 2017 reported similar figures to those included in respect of Lantrak NSW in the Lantrak group’s above summary of that company’s results for that financial year.

The negotiations for the heads of agreement

42    On 26 July 2018, Mr Yammine, Mr Pinto, Gary and Mark Liemant met at the offices of PricewaterhouseCoopers (PwC) in Sydney with Michael Dean of PwC. This followed an introduction from one of Mr Yammine’s contacts as to who might be able to assist the Liemant brothers in advising on the buyout proposal. They had a high level discussion to explore possibilities. Mr Dean appears to have suggested that, given that they were located there, the Liemant brothers should deal with PwC’s Melbourne office. Mr Liemant took up that suggestion and, after about mid-August 2018, he and others in the Lantrak group had a preliminary meeting with PwC personnel in Melbourne of which he informed Mr Yammine.

43    On 21 August 2018, Gary and Mark Liemant, together with Sanjiv Jeraj and Greg Diamond of PwC, met at PwC’s Melbourne offices with Mr Yammine, Mr Pinto and Mr Touma. During the discussion, Mr Yammine’s side reiterated his interest in selling his share of the business and the conversation turned to how a value could be ascribed to it. Mr Jeraj led the discussion in which he, Mr Diamond and Mr Pinto agreed that a multiple of five times Lantrak NSW’s earnings before interest and tax (EBIT) was an appropriate means of arriving at a value.

44    Mr Liemant said in chief that valuation was Mr Jeraj’s area of expertise and that Mr Jeraj told the meeting that businesses of the nature of Lantrak NSW typically sold for a multiple of five times EBIT less debt. He remembered that Mr Yammine said that he did not understand what was involved in the concept of “less debt” and, after Mr Jeraj explained what he meant, Mr Yammine said that he would ensure that there was no debt at the time of sale.

45    The Lantrak group used a Pronto accounting system to produce management reports. Before the meeting, Mr Yammine had seen the Pronto profit and loss report of Lantrak NSW for the 12 months ended June 2018, that was created on 2 August 2018, which became exhibit B. That report recorded total sales of about $63.1 million, a gross profit of about $7.05 million and a net profit of about $1.727 million. He had looked at them with Mr Pinto before the meeting. Mr Pinto said that exhibit B came from the Lantrak group’s Melbourne office.

46    Mr Yammine thought that EBIT or earnings before interest, tax, depreciation and amortisation (EBITDA) meant something like net profits, but had never heard of the concepts of EBIT and EBITDA before this meeting. Mr Liemant did not recall Mr Yammine referring to the $7 million as gross profit at the meeting and asserted that “it was quite clear in that meeting that it was 7 million EBIT”. Although Mr Yammine agreed to a leading question in cross-examination that he recollected the multiplicand was EBITDA, I think he was mistaken and accept Mr Pinto’s and Mr Liemant’s evidence that they discussed EBIT as the multiplicand.

47    Mr Yammine said that, on the basis of either exhibit B or a similar Pronto report for Lantrak NSW used at the meeting, he thought that the business would easily achieve an EBIT of $7 million for the 2019 financial year. Mr Yammine explained his approach:

Did you think that they were talking, when they talked about EBITDA, about something like net profit, or something like that? --- Profits.

Just profits? --- Yes, profits. Profits of the business.

…

And it was your suggestion in that meeting that five times seven to 10 million dollars was about the right number. Wasn’t that right? --- I think the 10 got thrown in. The seven it was five times seven.

Yes. The 10 is really an outlier that was there and then disappeared, wasn’t it? --- I don’t know, I don’t say 10. I say five. So that’s just a - - -

All right. So five times seven is the real number that’s floating around in this discussion? --- That’s right.

And the seven came from you? --- The seven came yes, because it was … the gross profit of the Pronto system, which then, if you add it back from the NP to the GP, nothing was taken. So it was … a brand costing. So all that all that money that was spent was towards the brand. Why should I wear it if it’s going to go on? It was the same logo in Melbourne and Queensland, and New South Wales had the same logo, so all that cost that occurred was from having that brand.

(emphasis added)

48    The above, less than coherent explanation, revealed Mr Yammine’s obvious lack of financial literacy, including understanding of accounting concepts such as EBIT. Mr Yammine appears to have understood that EBIT and gross profit were commensurable when he referred to the figure of $7 million. I do not think that anyone at the meeting understood Mr Yammine as being capable of making a reliable prediction of Lantrak NSW’s EBIT or EBITDA (as opposed to profitability) for the purposes of the negotiation.

49    Everyone at the meeting used the same financial information. The Liemant side had experienced accountants, including Mr Jeraj from PwC (who was not called and whose evidence, I infer, would not have assisted the Liemant parties’ case) to assist them, and Mr Yammine had Mr Pinto, who was also an accountant, to assist him. The meeting discussed the potential value of Lantrak NSW as five times the EBIT derived from exhibit B, or a similar Pronto print out, being $35 million, which they all could then use as a basis for the negotiations. Mr Liemant understood at this meeting that Mr Yammine was expecting to receive a price of $35 million for his interest in Lantrak NSW based on what he and his expert advisors from PwC had calculated was an EBIT figure of $7 million. Mr Pinto also understood this, as (I infer), did Mr Touma.

50    During the meeting, Mr Liemant told Mr Yammine and the others that he (meaning the Liemant side) would need to obtain funding to enable such an acquisition and there would be a need for due diligence to be done because the Liemant side had to raise capital. Mr Jeraj said that the Liemant side would need to conduct due diligence on the business of Lantrak NSW. Mr Yammine was unhappy about this. He said that they already knew what the business’ financial position was because they did the back office work.

51    The meeting also discussed a possible value of between $12.5 million and $15 million for the trucks owned by Mr Yammine’s interests that Lantrak NSW used in its business. At that point, Mr Liemant said in chief that his side was not then interested in acquiring the trucks.

52    On 22 August 2018, Messrs Yammine, Touma, Liemant and Jeraj met again to further the discussion.

53    On 27 August 2018, Mr Touma emailed a first draft heads of agreement to Ms Mikhael, Messrs Liemant, Jeraj, Pinto and Diamond. The draft provided that the price of NJA’s shares in Lantrak NSW was $35 million, the price for the business, inventory and trucks was $15 million and $3 million was the price of the units held by Ari Investments Aust Pty Ltd as trustee for the Ari Investments family trust (named after Mr Yammine’s daughter) in the McGraths Hill property unit trust, which owned the land at McGraths Hill, where Lantrak NSW’s office was. The parties were to exchange finalised transaction documents by 6 September 2018. The total consideration in the first draft was $53 million payable in three instalments, the first of $23 million payable on 8 October 2018, the second of $10 million payable on 1 March 2019, and the third of $20 million payable on 2 December 2019. Mr Yammine was to repay $3 million in loans to Mr Liemant and Mr Yammine would be engaged to provide consultancy services at $10,000 plus GST per week until 2 December 2019. The draft provided that it was not binding and did not create any legal obligations.

54    Importantly, on 28 August 2018, Ms Sumanada emailed Mr Liemant a draft budget for Lantrak NSW for the year ended 30 June 2019. This projected total income of about $99.7 million, finance expenses of about $890,000 and a net profit before tax of about $6.2 million. If the finance expenses were added back to the net profit before tax to give an EBIT calculation, that would equate to about $7.1 million (or $7,107,099 to be precise). Thus, on Lantrak NSW’s own internal projections, the $7 million EBIT figure, which the participants had discussed at the meeting of 21 August 2018, was at that time realistic. The amount of depreciation and amortisation for the business was minimal given that it did not own any substantive assets to which such provisions could apply. After being taken to this document, which he said he did not recall, Mr Liemant gave this evidence:

If you add back those financing expenses, the EBIT, Mr Liemant, is $7,107,099? --- Correct, yes.

And you had no basis to think that forecast was wrong as at that date, did you? --- I was sceptical due to the fact that they had never actually achieved a six per cent in their profit. It was more like in the circa 1.9, 2 per cent.

(emphasis added)

55    I do not believe that evidence or that Mr Liemant recalled being, or was, sceptical of the projection. That is because throughout the negotiation of the heads of agreement neither he, nor others on the Liemant side, including their expert in valuation, Mr Jeraj, conveyed any substantive doubt about, or sought to resile from, the use of the $7 million EBIT figure or the $35 million valuation of the shares. Had he really believed at that time that a realistic EBIT was $2 million, he would have equated that with a value of $10 million, being $25 million less than they were discussing. It is difficult to understand why Mr Liemant would not have raised this scepticism at the time, rather than proceeding on what he would have had to regard as a gross overvalue and allowing everyone involved to waste time, and entertain unrealistic expectations, based on a misconception.

56    On 30 August 2018, Mr Diamond responded to the first draft of the heads of agreement with a second version in mark up. This draft deleted individual pricing for each item, but retained a total price of $53 million payable in three instalments with values for the items to be inserted.

57    The parties’ representatives exchanged several further drafts of the heads of agreement.

58    On about 10 September 2018, Lantrak Holdings engaged Simon Peeke, through his company BCQ Holdings Pty Ltd, to provide financial and strategic advice consultancy services.

59    On 12 September 2018, Tiffany Barton, a solicitor at PwC, sent a further draft which provided for adjustment of the purchase price to between $47.5 million and $53 million depending on variations to be agreed relating to debts associated with certain assets and a loan that Mr Yammine had to repay to Mr Liemant. The price continued to include a value for Lantrak NSW of $35 million based on an EBIT of $7 million. The parties exchanged further drafts on 12 September 2018 until about 9:00pm when Ms Barton emailed the final version.

The Heads of Agreement

60    The heads of agreement were exchanged on about 13 September 2018 between the purchasing parties (Lantrak Holdings, Earthtrak Pty Ltd, as trustee of the Liemant unit trust (as land purchaser), and Gary and Mark Liemant) and the selling parties (Mr Yammine, Ari, as trustee of the Ari Investments family trust (as the land vendor), NJA, as trustee of the NJA family trust (as share vendor), and Yammine Pty Ltd (as business investor and truck sales vendor)). The prices for the shares in Lantrak NSW, the business operated by Nojo (being the owner of the trucks and other transport solutions inventory used in Lantrak NSW’s operations) and the McGraths Hill land were not specified in total consideration of $47.5 million. That price was proposed in the heads of agreement to be payable in three instalments, the first of $5 million on execution of binding transaction documents on 27 September 2018, the second of $23 million payable on completion of the sale of the trucks and shares on 29 March 2019 and the last of $19.5 million payable on completion of the McGraths Hill property sale on 2 December 2019.

61    Lantrak Holdings agreed that it or its nominee would purchase NJA’s 50% shareholding in Lantrak NSW (cl 2.1) and would discharge the debt owing on the trucks of up to $5.5 million as well as paying the price for the trucks and, by 31 October 2018, would obtain a release for Mr Yammine and Ms Mikhael from the financier of that debt (cll 3.2–3.3). The Lantrak group agreed that, in addition to Lantrak Holdings paying for the McGraths Hill property, it would discharge all the debts of the McGraths Hill property unit trust on or before completion on or before 2 December 2019 (cll 4.2, 6.3(c)). In addition, Lantrak Holdings or a nominee would engage Mr Yammine or a nominee to provide consulting services in the period to 2 December 2019 at the rate of $10,000.00 plus GST per week (cl 5).

62    Importantly, cl 6.1 provided that the parties would negotiate in good faith to finalise the transaction documents to give effect to the transaction contemplated in the heads of agreement in preparation for exchange on or before 27 September 2018.

63    Mr Yammine agreed that he would resign as a director of each of 11 companies, including Lantrak NSW, prior to settlement of a debtor finance facility that Lantrak NSW had with Scottish Pacific Business Finance Pty Ltd (cl 6.2).

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

65    Critically, cl 11.1 provided:

11.1    Non-binding

Except with respect to confidentiality under clause 12, the parties agree that there is no legal obligation on either party to enter into the transactions proposed by this heads of agreement.

    (emphasis added)

What happened after the heads of agreement

66    On 14 September 2018, Ms Sumanada emailed Mr Peeke a copy of the heads of agreement, details of the Lantrak group’s finance facilities and Mr Pinto’s contact details to enable Mr Peeke to obtain information about financing for the trucks, as he had earlier discussed with Mr Liemant.

67    On 18 September 2018, Chris Taylor, a director of PwC’s mergers and acquisitions unit, emailed Ms Sumanada with a daily timetable for the forthcoming five weeks, which he told her that he planned to provide to Gary and Mark Liemant. The timetable envisaged that discussions with potential lenders would occur by 5 October 2018 and with potential investors (referred to as “Project Sahara”) by 16 October 2018. It programmed that a decision on whether or not to proceed with the transactions with Mr Yammine would occur on 17 October 2018. Under the heading ‘NSW business acquisition workstreams’, the timetable read:

68    Mr Liemant said that he did not recall seeing that timetable but accepted that he possibly had. He said that PwC’s comment, “Lantrak to intentionally delay the timetable” for the drafting and negotiation of the transaction documents, “didn’t come from me” and denied that he did delay the timetable intentionally.

69    I found that evidence problematic. Under cl 6.1 of the heads of agreement, the parties were supposed to negotiate the transaction documents so that an exchange would occur by 27 September 2018, that is, within two weeks of the exchange of those heads. Mr Liemant had engaged Mr Peeke on 10 September 2018 to assist in, among other tasks, raising the money to fund the proposed acquisition. Mr Liemant knew that raising funding for a transaction involving a binding commitment to pay a total of $47.5 million in tranches over about 15 months would take time, and almost certainly longer than two weeks in circumstances where the Liemant interests did not then have the immediate financial capacity of cash or facilities, or a willingness, to commit to such a transaction. Mr Liemant knew that PwC had labelled as “Project Sahara” the task of preparing a prospectus-type document for potential investors to support the proposed purchase and that this task had not been activated at the time of exchange of the heads of agreement.

70    Despite having negotiated the heads of agreement on the apparent basis that the Liemant side could proceed with the transaction as it contemplated with an exchange by 27 September 2018, Mr Liemant must have realised when executing the heads of agreement that the Liemant side would not be able to exchange by then as cl 6.1 contemplated. Of course, he knew that the heads of agreement were not binding. I found his evidence of not intentionally delaying the timetable for negotiating and exchanging the transaction documents implausible, given that he knew that his side still had to raise finance if it were to proceed to an exchange of contracts. PwC were the Liemant side’s highly qualified advisors in the transaction and, I infer, had communicated to Mr Liemant the need for the Liemant side to raise finance before this. At least by 18 September 2018, it must have become apparent to Mr Liemant that the Liemant parties would need to raise finance or seek investors and that, until this occurred, they could not risk exchanging contracts.

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

72    Also on 25 September 2018, Ms Barton circulated the first draft of the sale agreement. The purchase price remained as $47.5 million but its allocation between the assets was left blank. The sellers were to enter into a restraint of trade for five, three or one years (depending on its enforceability in the usual type of cascading wording used in such restraints (cl 11)). There was an entire agreement clause (cl 14.7) and a clause in which the parties acknowledged the receipt of, or the opportunity to receive, legal advice in respect of the sale agreement (cl 14.12). While Mr Yammine did not read this or any other version of the sale agreement, he accepted that he received legal advice from Mr Touma as to its provisions (including the final version).

73    As I noted at [38] above, I infer that Mr Touma gave Mr Yammine all relevant legal advice as to the terms of each version of the sale agreement, and in particular the executed sale agreement. That advice included the effect of the entire agreement clause in precluding the ability of any party to assert that the sale agreement was incomplete or that there were other agreements, arrangements or understandings between them (or any of them) that were not contained in its terms.

74    I do not accept Mr Yammine’s denial that Mr Touma explained to him the effect of the entire agreement clause (which was at cl 11.7 in the sale agreement) before he executed the sale agreement. It is inherently unlikely that a solicitor would fail to explain the effect of such a clause to his client, particularly a person like Mr Yammine who was obviously not a commercially experienced businessman familiar with usual terms of such contracts, albeit he was no doubt very effective in orally negotiating deals. This was a multi-million dollar transaction of great significance to Mr Yammine and his family. A reasonable solicitor in Mr Touma’s position would have been aware that the terms of the proposed agreement for such a significant transaction required careful explanation to a person in Mr Yammine’s position and with his background. Whether, and to what extent, Mr Yammine may have listened to or understood a solicitor’s explanation of the terms of the sale agreement is a different question from whether he received such an explanation. Having observed him carefully in giving evidence, I formed the view that Mr Yammine focused on his personal interactive relationship with individuals with whom he dealt and had little time for paperwork or detail, despite some consciousness of their importance in defining legal rights and obligations.

Mr Yammine resigns as director

75    Importantly, on 26 September 2018, Mr Yammine resigned as a director of Lantrak NSW and the other companies as the heads of agreement had contemplated. Mr Yammine gave unchallenged evidence that Mr Liemant had asked him to resign “so then that way they can settle the deal, like, get the funds to settle the deal, because if I was a director they wouldn’t get the deal settled. So I followed the heads of agreement and signed off” (emphasis added).

76    Before the resignation, Mr Liemant had not told Mr Yammine of any difficulties that the Liemant side perceived or was having in raising finance. Mr Liemant understood that, as far as Mr Yammine was concerned, he had resigned on the basis that he expected that the Liemant side would be paying him $35 million for Lantrak NSW. Mr Liemant said in re-examination that “it was a formality to get through that [the later signing of the sale agreement] and we were moving into the consultancy agreement”. Mr Liemant said that, following his resignation, Mr Yammine’s day to day activities in the business changed because he “was no longer active in the business at that point”. This was an example of Mr Liemant, without any contractual basis, using Mr Yammine’s trust in him to move Mr Yammine to a position in negotiations that was advantageous to Mr Liemant’s interests. Mr Liemant admitted that he was not keeping Mr Yammine informed of progress on the “Project Sahara” timetable beyond “some broad discussions”.

The negotiations continue

77    On 26 September 2018, Mr Touma replied to Ms Barton’s email of 25 September 2018 reminding the Liemant side that the heads of agreement provided for the exchange of the transaction documents on the following day. He noted that it was the Liemant side’s preference that they be responsible for preparing the first draft, yet what Ms Barton had sent was not even a complete draft. He said that he was instructed to ask the Liemant side to arrange payment of the first instalment of $5 million on that or the next day by deposit into his firm’s trust account “[a]s a sign of good-faith and commitment towards this transaction”, which could be released to his client on exchange. He asked when to expect a complete first draft of the transaction documents.

78    On 26 September 2018, Mr Peeke sent Ms Sumanada his analysis of Lantrak NSW’s net profit for the year ended 30 June 2018 of about $1.25 million.

79    On 27 September 2018, Mr Touma and Mr Jeraj discussed the Liemant side’s proposal that Lantrak Victoria drawdown $5 million on the Scottish Finance facility to use as the deposit on the sale agreement. They exchanged emails about this and progressing the then-proposed transaction.

80    On 2 October 2018, Mr Peeke emailed Mr Liemant and Ms Sumanada attaching an estimate that he had made of Lantrak NSW’s results for the first quarter of the 2018-19 financial year. He said that he had had to make estimates because not all of the figures for September 2018 were yet available nor for that year as a whole. Mr Peeke estimated that it would earn about $1.08 million for the quarter and commented in his email that this “clearly ma[de] a $7M target aggressive”. Mr Peeke said that by then he probably had formed a view that the Liemant interests would not be able to “raise finance to do the deal as it was represented in the heads of agreement” and had discussed this with Mr Liemant. Both Mr Liemant and Mr Peeke agreed in evidence that Mr Peeke’s estimate was of profit, not EBIT. Mr Liemant accepted that if financing and fringe benefits tax expenses were added back to produce an EBIT figure, EBIT for the first quarter would have been $1,266,660. They agreed that using Mr Peeke’s methodology would result in an EBIT of $5,066,640 for the whole year.

81    However, Mr Liemant then sought to eschew the obvious consequence (and result of Mr Peeke’s analysis) in the third answer in the following evidence:

And the business was, at this time, still growing quickly, wasn’t it? --- Yes, it was.

And so you understood, all else being equal, that the revenue would be expected to grow throughout the year. You agree? --- Yes, I did.

So Lantrak New South Wales would be doing more business by the fourth quarter of the year than it was in the first quarter. You agree? --- I wouldn’t have exposure to that far out.

No, but that would have been your expectation at the time having regard to - - -? --- It was … it appeared to be that way, yes.

(emphasis added)

82    Mr Liemant said, despite what the figures appeared to show for the 2018-19 financial year to date and forecast, that he “had a concern with aged debtors that we weren’t collecting money so … at that stage, I only took the actual results that I had up until the end of ’18 [into account]” (emphasis added). He accepted that, with an EBIT forecast of about $5 million, the value of the business, using the multiplier of five times, was about $25 million, but retorted “I work on the actual results, not the estimates”. Mr Liemant never discussed Mr Peeke’s estimates with Mr Yammine.

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

84    On 4 October 2018, Mr Jeraj emailed Mr Touma informing him that the Liemant side had had preliminary discussions with their debt providers and that those financiers would need to “undertake minimum diligence” including seeking market valuations of the trucks, giving a level of comfort on the 2019 EBIT forecast for Lantrak NSW and the contracts in place for customers, waste disposal sites and the like. He explained:

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

(emphasis added)

85    Mr Jeraj asked for that information. He told Mr Touma “we will be unable to sign a Sale and Purchase Document if we have no capacity to complete on the transaction. This in fact is misleading conduct”.

86    On 5 October 2018, Mr Touma replied, reminding Mr Jeraj that “Our respective clients spent a significant amount of time (and money) in negotiating and documenting the key terms of the deal in the heads of agreement”. He stated that that document contemplated the parties exchanging transaction documents on 27 September 2018. He retorted that, unlike the position put in Mr Jeraj’s email of 4 October 2018, “Nowhere is it stated nor has your office advised us that the Sale Agreement is conditional upon securing funding”.

The events of 9 October 2018

87    At 12:39pm on 9 October 2018, Mr Peeke emailed Gary and Mark Liemant a first draft of a proposal to be put to Mr Yammine. This proposed a total purchase price of $15 million that would result in a payment to the Yammine interests of a net $12 million. That was because Mr Peeke proposed that the first $5 million payable at “settlement” would be offset by the $3 million “loan” owing by Mr Yammine to Mr Liemant to which the heads of agreement had referred. Mr Peeke proposed that payments of $2.5 million be made 12 and 24 months after settlement and a further payment of up to $2.5 million in the 2018-2019 and 2019-2020 financial years, if future pre-tax profits of Lantrak NSW exceeded $6 million. The other terms that Mr Peeke drafted made the proposal even more conditional. Mr Liemant said that Mr Peeke had prepared the draft proposal at his request. I infer that Mr Liemant had read that draft before he spoke on the phone to Mr Yammine later on 9 October 2018.

88    Later on 9 October 2018, Mr Liemant and Mr Yammine, who was at the home of his mother-in-law, had a telephone conversation (being the 9 October conversation to which I referred to in [6] above). Mr Yammine said that the 9 October conversation followed several discussions in which Mr Liemant had asked him for more time to exchange a binding sale and purchase agreement beyond the target date of 27 September 2018. He said that, before the 9 October conversation, Mr Liemant had been assuring him that he would “get this deal done”. Up to that conversation, the position was, as Mr Liemant said in his evidence:

So we’ve agreed that as at the end of September 2018, Mr Yammine had an expectation you were going to pay him 35 million for the Lantrak New South Wales business. We’ve agreed that? --- Prior to the phone call where we agreed on a final price for that, yes.

(emphasis added)

89    The context in which this conversation occurred is also relevant to assessing what was said in it. As appears above, the Liemant side was seeking funding and delaying the preparation of the contracts to give effect to the heads of agreement while contemplating a reduction in the purchase price and Mr Touma was agitating with the Liemant sides’ lawyers about the need to move things along.

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

91    Mr Yammine’s evidence of the 9 October conversation was that Mr Liemant:

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

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

…

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

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

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

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

“Make this right”? --- Yes. Sorry.

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

(emphasis added)

92    In this conversation, Mr Yammine was using “10” and “22” as shorthand for those numbers as millions of dollars. He also recounted the conversation in evidence in chief as follows:

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

(emphasis added)

93    When, in the last answer above, Mr Yammine said “that’s why I sent that” he was referring to what he wrote down on a sheet of paper as the points that would comprise what he was prepared to accept, after the 9 October conversation, while waiting for the payment of the balance of the anticipated $35 million price for Lantrak NSW and before entering into a non-compete provision (the 9 October note). Using his phone at 9:27pm on 9 October 2018, he sent a photo of the 9 October note to Mr Liemant in a text message. The sheet of paper recorded, under the heading ‘Lantrak deal’, “10 m clear 5 m upfront Friday 5 m 29 March [2019] all taxes paid”. That is, the $10 million was to be paid in two instalments of $5 million each, one on execution and, as in the heads of agreement, a second on 29 March 2019, and the Liemant interests would pay any capital gains and other taxes for which the Yammine interests would otherwise be liable.

94    The 9 October note also provided:

    “3 m Debt cleared”.

    “In Good faith”.

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

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

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

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

    Two managers employed by Lantrak NSW, Levi Simpson and Wally (whose surname did not emerge in the evidence), would each be retained and be paid a profit share of 5% or be issued 5% of the shares in Lantrak NSW.

95    Unlike the heads of agreement, the 9 October note, first, made no provision for the sale by Mr Yammine’s interests of the trucking business and its assets or the McGraths Hill property (the outstanding interest in which, instead, Mr Yammine’s family trust would acquire) and, secondly, it provided that Mr Yammine’s $3 million debt due to Mr Liemant would be cleared “in good faith”.

96    And, of course, the 9 October note made no reference to there being a further element to the proposal, namely Mr Liemant’s “promise” to pay the balance of the $35 million if Mr Yammine proceeded in accordance with the terms in that note.

97    Mr Tartac said that he heard a conversation that Mr Yammine had with “Gary” on Mr Yammine’s phone’s loudspeaker at Mr Yammine’s mother-in-law’s home in which Mr Liemant had said that he would pay $10 million and “pay the rest later”. He testified that Mr Liemant said to Mr Yammine:

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

(emphasis added)

98    Mr Tartac said that Mr Liemant told Mr Yammine to take the $10 million and that he would pay the balance of the $35 million later. Mr Tartac recalled Mr Liemant saying “accept it Norm, take the 10 million, and I will definitely fix the rest of it up in due course”. Mr Tartac said that, on other occasions, he heard other conversations on loudspeaker between Mr Yammine and Mr Liemant to similar effect. As the Liemant parties submitted, Mr Tartac was the only witness who gave evidence that Mr Liemant first proposed the figure of $10 million.

99    Ms Mikhael recalled the 9 October conversation with her husband as including Mr Liemant saying that he could not raise the funds to pay $35 million and telling Mr Yammine: “Take something for now and I will honour the rest. Just give me a number now and I will honour the rest”. She said her husband asked for “10 million clear … add up to 13, and then you can pay me the 22 within 12 months”. She recalled that Mr Yammine asked for a weekly $10,000 consulting fee as “the reassurance of the 12 months” in which Mr Liemant could raise the balance of the $35 million price.

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

101    In chief, Mr Liemant said that, if, contrary to his recollection, he had said something in the 9 October conversation to the effect that he would pay the $22 million later, “I would have had to have that documented” and that his company “would have to look at funding options. It didn’t have the capacity to fund that sort of money” (emphasis added). Mr Liemant gave this evidence in cross-examination:

Mr Yammine didn’t say why he only wanted 10 million and was prepared to move from 35, did he? --- I think it was discussed that he needed some money.

Yes. And so Mr Yammine said that he needed money? --- Yes, he, well, not directly, but it was implied that he needed money. Yes.

Well, I suggest to you that’s why Mr Yammine said he would take 10 million clear now, and you could pay the balance later? --- No, he did not say that.

So your only explanation for why the parties moved from 35 million to 10 million clear is because … your understanding was Mr Yammine needed money; is that correct? --- No, it’s not correct.

(emphasis added)

102    Accepting that one reason why Mr Liemant wanted the price to reduce was his assertion that his side did not have the capacity to pay $35 million at that time, it beggars belief that Mr Yammine would have arrived at his first offer of taking a net $10 million without any bargaining or enquiry of Mr Liemant about what he could afford to pay, especially given the background of the heads of agreement. Mr Liemant’s answers above shifted ground from, first, that they discussed Mr Yammine’s need of money, to: “he, well, not directly, but it was implied that he needed money”. I do not believe Mr Liemant’s evidence that Mr Yammine did not say directly to him that he needed money.

103    Significantly, Mr Liemant denied that he had any discussion with Mr Yammine at any time in October 2018 in which he (Mr Liemant) said that he would honour the payment of a total of $35 million or pay the balance of $22 million in 12 months at a time later than paying the $10 million clear.

104    Mr Yammine did not give discovery of the 9 October note. Initially he said in cross-examination, before the luncheon adjournment on the second day of his evidence, that he had given a copy of it to his lawyers. After lunch, Mr Yammine said that, over lunch, he had reflected on his incorrect answers and wanted to correct them. He said that “I had a memory meltdown” and was not used to the experience of giving evidence. He said that he had not sent the photograph of the 9 October note to his lawyers “And I don’t have an explanation why”. It was not suggested that anyone had raised the matter with Mr Yammine so as to prompt or cause his correction. In my assessment, Mr Yammine reacted to the pressure of the cross-examination when he gave the incorrect answers but realised, when he calmed down over lunch, that he had not been truthful and voluntarily disclosed what he had done.

105    Mr Yammine’s failure to inform his lawyers about the 9 October note or to explain why he did not do so, together with his initial incorrect assertion that he had informed them, caused me considerable concern as to his veracity. I infer that Mr Yammine did not give the 9 October note to his lawyer because it may have damaged his case. However, I am satisfied that Mr Yammine gave the incorrect answers at a time that he was very agitated because of his account being challenged in a vigorous, but entirely proper, cross-examination during which senior counsel for the Liemant parties told him, again appropriately in the circumstances, “please calm down and stop making speeches”.

106    I do not think that Mr Yammine was a dishonest witness, but this episode made me cautious to scrutinise his evidence carefully in assessing the reliability of his account. Overall, while Mr Yammine was not a person with a mastery of the detail of commercial negotiations, I found him to be generally honest and his evidence reliable, except when I have made specific findings in these reasons not to prefer or accept what he said.

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

108    As I will explain below, I am comfortably satisfied that, despite Mr Yammine’s failure to discover the 9 October note and incorrect evidence about what he had given to his lawyers, in their conversation on 9 October 2018, Mr Liemant said to Mr Yammine that he would pay the balance of the $35 million for Lantrak NSW later if Mr Yammine went ahead with a deal in which he would be paid a net $10 million and would enter into a consultancy agreement at $10,000 per week without a non-compete clause, while Mr Liemant went about raising finance for the balance.

109    Moreover, while Ms Mikhael and Mr Tartac were not active participants in the 9 October conversation, each gave a broadly consistent account of its content. In forming this conclusion, I have taken into consideration the Liemant parties’ submissions that Ms Mikhael’s evidence was unreliable because of her reference to the conversation including what was not then known. That was because the figures of $13 million and $22 million that she used must have taken account of the taxation liability, which was not known or quantified when Mr Yammine and Mr Liemant were speaking in the 9 October conversation. I do not think that her evidence was unreliable generally, although she may have used the figures that later emerged erroneously in recounting what she heard of the 9 October conversation. However, I infer that she blended more than one conversation or attributed her later knowledge or understanding of the numbers to what she recounted as having heard on 9 October 2018 as the conservation progressed. That is likely to have occurred because she and her husband would have discussed, in the course of their day to day lives as matters evolved, the overall transaction and their recollection of conversations between him and Mr Liemant many times.

110    It would be out of all experience if the three witnesses to the 9 October conversation (Mr Yammine, Ms Mikhael and Mr Tartac) gave an exactly identical account of the conversation. In this regard, as McLelland CJ in Eq recognised in Watson v Foxman (1995) 49 NSWLR 315 at 318–319 in the passage quoted by the Full Court in Julstar [2014] FCAFC 151 at [73] (set out at [12] above), “the words spoken [must] be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances”. The broad thrust of what each of Mr Yammine, Ms Mikhael and Mr Tartac recalled as having been said in the 9 October conversation was consistent in attributing to Mr Liemant the “promise” that if Mr Yammine proceeded on the basis of Mr Liemant paying $10 million now, he would “honour the rest”.

111    In addition, Mr Pinto recalled being in Mr Yammine’s car with him on speakerphone (as was Mr Yammine’s practice) talking to Mr Liemant after he first saw the 9 October note. Mr Pinto said that Mr Liemant told Mr Yammine that “they needed to … execute the transaction, and that he would look at … some sort of way of making up the difference” because Mr Liemant could not “obtain the finance … to fulfil the contract”. Mr Pinto said that there were “lots of discussions between Gary and Norm with regards to getting the purchase [and] sale agreement … executed”. He said that Mr Liemant suggested that Mr Yammine “take something for now”, they agreed to $13 million and Mr Liemant said that he would “make up the difference [of $22 million] on the back end”. Mr Pinto said that Mr Yammine agreed and they also discussed consultancy and non-compete agreements.

112    Mr Pinto said Mr Yammine and Mr Liemant discussed that, as part of Mr Yammine executing the agreement to purchase his shares, he would then enter a non-compete agreement but would work out a way of Mr Liemant raising finance. Mr Pinto said, in cross-examination, that, in a later conversation, Mr Liemant and Mr Yammine arrived at a figure of between $10 and $13 million after taking into account a $3 million component for capital gains tax that would be deducted from the $35 million which Mr Liemant would pay. Mr Pinto said that Mr Liemant and Mr Yammine discussed that Mr Yammine would have “a consultancy agreement … to assist growing the business whilst he [Mr Liemant] was looking for the capital”. Mr Pinto said:

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

(emphasis added)

113    I accept Mr Pinto’s evidence that he overheard conversations between Mr Yammine and Mr Liemant in which Mr Liemant told Mr Yammine that he would look for capital or finance to pay the balance, after the initial payment of $10 million net of the $3 million capital gains tax. In reaching this finding, I have been conscious that Mr Pinto, no doubt, has heard Mr Yammine ruminating many times about his discussions with Mr Liemant and what Mr Yammine’s belief was concerning this, which is likely to have coloured, to some extent, Mr Pinto’s independent recollection of what he overheard. I took into account that Mr Pinto was not a person with a forceful personality, in contrast to Mr Yammine, but, rather, was somewhat timid and, of course, working for Mr Yammine (cf Julstar [2014] FCAFC 151 at [72]–[74]; Watson 49 NSWLR at 318–319). Nonetheless, I am satisfied that, although he did not have an exact recollection of the conversations that he overheard between Mr Yammine and Mr Liemant, Mr Pinto did hear Mr Liemant agree after the 9 October conversation, in effect, that he would pay Mr Yammine the balance of $35 million for the shares in Lantrak NSW later, once he raised the finance, and that, at that time, Mr Yammine would not enter into a non-compete agreement but would work as a consultant in the meantime.

114    Here, the real issue is whether, in substance, Mr Liemant entered into a contract or made a representation in the 9 October conversation that, if Mr Yammine agreed to being paid $10 million clear in the immediate transaction instead of the original $35 million, he [Mr Liemant] would “honour” the original deal and pay the balance of the $35 million at a later time.

115    As I will explain when dealing with the collateral contract issue below, I do not consider that the dealings between Mr Yammine and Mr Liemant created a legally enforceable contract because of, among other reasons, the imprecision of what was said. But, I formed the clear view that, first, Mr Liemant conveyed to Mr Yammine in the 9 October conversation, and subsequently confirmed in later conversations that Mr Pinto and Mr Tartac overheard, that he would pay the balance of the $35 million at a later time if they proceeded with the transaction along the lines recorded in the 9 October note and, secondly, they proceeded on the basis that Mr Yammine’s security for the payment of the balance was that he would only sign the non-compete agreement when that balance was paid.

The events leading to entry into the sale and purchase agreement

116    After 9 October 2018, PwC and Mr Touma prepared several drafts (including the final version) of the sale and purchase agreement (SPA) and a consultancy agreement and circulated these to both the Liemant parties and to Mr Touma and the Yammine parties.

117    Importantly, after 16 October 2018, all of the drafts and the final versions that the parties signed on 12 November 2018:

(1)    had no non-compete provision for Mr Yammine;

(2)    made no reference to any payment of $22 million at any time; and

(3)    contained an entire agreement clause.

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

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

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

    All aspects of the business were performing well, with logistics being more stable.

119    On 12 October 2018, Mr Jeraj emailed Mr Touma a copy of a further draft of the transaction documents, other than one for the truck sale which he asked Mr Touma to draft. Those drafts included a sale agreement and a consultancy agreement. The draft sale agreement again included a restraint of trade (or non-compete) clause. Mr Yammine instructed Mr Touma to remove the restraint clause. Mr Yammine said in cross-examination that he told Mr Touma to do this “because Gary has still got to pay me the last bit of the money” and that he “would have told him” that the $22 million was still to come. He gave this evidence about the restraint clause being removed after 12 October 2018:

You see the last instalment is payable in March 2020? --- That’s right.

That’s after, you say, the $22 million was payable, isn’t it? Because you say on your story that Mr Liemant had agreed to pay $22 million a year after your discussion, so in November 2019; is that right? --- That’s right.

Right. So if you told Mr Touma about that, he would have put in the 22 million before the 3 million, because that’s the next thing to happen. It’s the next instalment, wouldn’t he? --- Well, I didn’t control Mr Touma, so no, I don’t know what he would have done. …

Can you give any explanation for why he wouldn’t put it there if you had told him about it? --- No, I understand how it looks.

All right. The answer is no, you cant? --- No, I understand how it looks.

You didn’t say “leave it out” because you wanted to conceal the payment for shares to avoid tax or something like that, did you? --- No.

You had every intention, as you have said, to pay everything you owe on tax and so that wasn’t the reason for not putting it in. The only reason, can I suggest to you, that for not putting it in is it just wasn’t part of the deal then. And since then, you have gone back to your original thought that you would have liked to have been paid 35 million for your shares? --- I disagree.

(emphasis added)

120    Damaging as Mr Yammine’s above evidence and the failure to call Mr Touma may appear at first blush to Mr Yammine’s credibility on this crucial issue, Mr Liemant’s evidence at the end of his cross-examination about the omission of the restraint clause, that came about from his discussions with Mr Yammine in October and early November 2018, is an important part of the factual matrix. That evidence was as follows:

And in the course of those conversations Mr Yammine said he would not agree to a restraint of trade clause appearing in the executed version of the sale and purchase agreement, didn’t he? --- Yes. He did. Correct.

And he said to you that he wouldn’t give the restraint so he would have some security for the $22 million that was still to come. That’s correct, isn’t it? --- No. Not for the $22 million. He said he wasn’t prepared to sign it because that was his security in case the SPA didn’t complete.

If your Honour pleases, no further questions.

HIS HONOUR … Mr Liemant, can I just ask you, commercially, from your point of view … what did you think you were buying for the 13 million if you didn’t get a restraint of trade from Mr Yammine who could go out the next day after completion and compete with you? --- I think it was really investing in the people that were there. Like, our businesses are fairly volatile. They’re up and down depending on the work at hand, but, again, the key is the people and it was important for us to keep the people on side, and we worked on a basis of what the business was doing. We were easily confident at that stage if Mr Yammine was to support the business that we would be able to continue that. So, I guess we worked on a multiple of five on what we were doing.

As you just said, if Mr Yammine was continuing to support the business, but after you paid him out the 13 million he didn’t have to do it contractually, did he? --- He was retained on a consultancy agreement for a further 12 months and at the end we were hoping to extend that for a further 10 years.

…

MR CRUTCHFIELD: But, Mr Liemant, you well knew. You were talking about you were getting the people as part of the 12 [sic] million. You said that to his Honour? --- Correct. Yes.

But you well knew that those people were loyal to Mr Yammine, didn’t you? --- The staff or who were you referring?

Yes. Well, let’s start with the staff. They were loyal to Mr Yammine, weren’t they? --- Well, there was a mix of people that were and weren’t.

And all the customers of Lantrak New South Wales business were loyal to Mr Yammine. Correct? --- … Not all of them, but a fair majority. Yes.

Yes. And absent a restraint of trade clause there was nothing stopping Mr Yammine going out and setting up his own business, was there? --- Except for the consultancy agreement that we had in place for a further 12 months…. Yes. And in that 12 months we either hoped to renew the consultancy agreement or bring people into the business that we could then continue.

Well, what I’m suggesting to you is the reason the restraint of trade clause doesn’t appear in the sale and purchase agreement is because there was some side agreement that you had with Mr Yammine and where you were going to pay him more money, and his security for that was the fact he hadn’t given you a non-compete? --- No. That’s not correct.

(emphasis added)

121    Problematic as Mr Yammine’s evidence appeared at first blush, Mr Liemant’s explanation for the commercial benefit of the $13 million that the Liemant parties paid for the Lantrak NSW group did not ring true to me when he gave it (hence my questions) and on reflection still does not. He knew that Mr Yammine had caused the revenue and profits of Lantrak NSW to grow significantly from when he first looked at the RTS business in late 2016, as is apparent from the financial information summarised at [40] above, and that it was still growing quickly as at early October 2018 (see [80] above). He recognised that “the business depended on Norm to get the sales”, hence his desire to keep Mr Yammine involved in the business (see [37]). I did not find convincing Mr Liemant’s explanation in the above evidence that the commercial benefit “was really investing in the people who were there” included keeping Mr Yammine involved. That was because, first, in Mr Liemant’s view, he was critical to the ongoing performance of Lantrak NSW and, secondly, a consultancy worth $520,000 (i.e., one year at $10,000 per week) without a non-compete clause was not likely to attract Mr Yammine to keep up his efforts to maintain or generate further growth in revenue and profitability.

122    On 2 November 2018, Ms Sumanada emailed Mr Touma a copy of the management accounts for Lantrak NSW for the three months ending 30 September 2018. Those showed that total revenue was about $25.8 million and net profit was about $1.18 million. Mr Liemant received those management accounts on a regular basis and, given the conduct of the negotiations at this time, I infer that he saw and reviewed those contemporaneously. If the financing and fringe benefits expenses of about $170,000 were added back to the net profit to produce an EBIT figure, that would equate to $1,477,477.40 or, if annualised, to $5,883,000. If the agreed multiple of five times EBIT were used, the rough value of the interest Mr Yammine was selling was about $29.5 million. While Mr Liemant asserted in cross-examination that he assumed that the results for the first quarter would be seasonally higher than could be expected for the rest of the 2018-19 financial year, he was driven to admit that he did not know if that were so. In re-examination, he said that he had formed the view, by the time of seeing the September 2018 quarter management accounts, that there was “definitely a downward trend at the time”.

123    I do not believe his qualification with which he sought to reduce the likely EBIT for the full 2018-19 financial year. In my assessment, Mr Liemant saw those results as damaging to his case and sought to downplay them. In re-examination, he said that one reason why the actual results for the full 2018-19 financial year declined in the last three quarters was “I think there was probably an adjustment there with Mr Yammine not being active in the business too”, in addition to what he asserted were “market-driven factors”. Mr Liemant did not explain how his knowledge that the business was growing quickly in early October 2018 could possibly have led him to be pessimistic about the results for the rest of the financial year (see [81] above).

124    Mr Liemant gave no coherent explanation as to why he agreed to remove the restraint provision at Mr Yammine’s insistence. He knew that Mr Yammine’s active participation had been integral to the growth of Lantrak NSW’s business success. Mr Liemant was an experienced, sophisticated businessman, who received specialised expert advice in negotiating the heads of agreement and the sale agreement. I do not accept that he thought that the value of $35 million for what Mr Yammine was selling, based on its likely EBIT that the negotiations adopted, was unrealistic or other than a reasonable reflection of its value.

125    The contemporaneous Lantrak group management accounts, available immediately prior to entry into the sale agreement on 12 November 2018, arguably may have warranted negotiating a reduction in the price of $35 million by a figure in the order of $5 or so million (see [122]). However, there was no intelligible reason why Mr Yammine, a month before the quarterly accounts became available to Mr Liemant (and remained unknown to Mr Yammine), would have agreed to give up over $20 million from the negotiated value used in the heads of agreement. In chief, Mr Liemant said that when Mr Yammine proposed taking $10 million “I paused for a minute. I was quite taken aback. I thought it was a considerable change”. Indeed, it would have been an extraordinary change, and one which made no sense, if that was all there was to the negotiation. Like Mr Yammine’s original “sale” of RTS’ business to Lantrak NSW, both men dealt with each other in an unorthodox, almost commercially bizarre, fashion, based on Mr Yammine’s trust in Mr Liemant’s integrity.

The sale agreement

126    On 12 November 2018, Mr Yammine and NJA (as trustee of the NJA family trust) as sellers, Lantrak Holdings as buyer, Gary and Mark Liemant and 21 companies as guarantors, who were all the parties, executed the sale agreement. It provided, relevantly, that:

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

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

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

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

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

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

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

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

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

    clauses 11.7 and 11.12 provided, respectively:

11.7     Entire agreement

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

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

…

11.12     Legal Advice

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

(emphasis added)

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

The Events after Entry into the Sale Agreement

127    Completion of the sale agreement occurred on 29 March 2019 by payment of the second instalment of $8 million. After that, later in 2019, Mr Yammine met with Mr Liemant on a number of occasions.

128    On about 29 April 2019, Mr Liemant and PwC, as auditors, signed the audited annual financial report of Lantrak NSW for the year ended 30 June 2018. That report included statements that the sale agreement had completed on 29 March 2019, Lantrak Holding’s acquisition was expected to increase its market share and reduce costs through economies of scale, but this had not been recognised in the current reporting period. It noted that Lantrak NSW had refinanced its debtor finance facility, increasing it from $10 million to $25 million. The statement of comprehensive income (with the unaudited comparative six months ended 30 June 2017) was:

129    In the notes to the report, as at 30 June 2018:

    trade receivables were about $17.4 million, with a provision for impairment of $268,965 (note 5); and

    the only current liability was $9,447,487 which was secured under the debtor finance facility (an increase from about $7.625 million at 30 June 2017) (note 8).

130    The 2018-19 audited financial report of Lantrak NSW was also in evidence. The management fee of $851,847 charged for the 2017-18 year was over five times the fee of $130,080 charged in the later audited 2018-19 financial statements, and the proportionately similar sum of $65,040 charged in the 2016-17 year, for the six months to 30 June 2017. The administration expenses charged for the 2017-18 year were also more than six times that for the proceeding six month period and proportionately larger than the 2018-19 comparative, where this was about $2.07 million, or about 20% less, even though revenue had increased by about 15% to about $73.1 million.

The May 2019 Canberra meeting

131    In May 2019, Mr Yammine arranged for Mr Liemant and Mr Peeke to visit him at a recycling yard that the former had established in Canberra (the May 2019 meeting). Mr Yammine said they discussed his wish that Mr Liemant go ahead with the purchase of trucks as contemplated in the heads of agreement. Mr Yammine asked when he would get the balance of the money from the original deal and Mr Peeke said that there was nothing owing. However, Mr Yammine said that Mr Liemant told him: “Just bear with me”.

132    Mr Liemant said that he accepted Mr Yammine’s invitation to the May 2019 meeting because he was consulting and “I wanted to maintain a relationship with Norm because I, again, felt that … he would be able to drive revenue into the business” (emphasis added). Mr Liemant said that Mr Yammine had a copy of the heads of agreement with him and told him that he was not happy with the deal that they had done, felt that more money was owed to him and he (Mr Liemant) should buy the trucks. Mr Liemant said that he and Mr Peeke were not “overly positive” about buying the trucks because that was “not our thing” and that the Lantrak group had never owned trucks. He said, “[w]e were quite surprised and taken aback by … the whole idea that he wasn’t happy with the deal”. Mr Liemant said that Mr Yammine said, “If you guys don’t buy my trucks, I’m going to compete against you and potentially destroy your business”. Mr Liemant was not cross-examined on what occurred at the May 2019 meeting.

133    Mr Peeke said that, at the May 2019 meeting, Mr Yammine said that “he was very unhappy with the deal that was done, felt he was owed more money … [and] had been cheated along the way”. Mr Peeke said that he responded by saying this was not so and that it “would take us quite some time to repay the investment we had made”. He said that Mr Yammine asked that they consider buying the trucks. Mr Peeke said this was not something they were considering but, out of respect, they would have a look at what could be done. Mr Peeke denied that Mr Yammine had asked when he would get the money he was owed.

134    Mr Liemant’s assertion that he was “quite surprised and taken aback” in the May 2019 meeting that Mr Yammine was not happy with the deal in the sale agreement rang hollow. First, Mr Liemant knew that, despite the seriousness of the negotiations, for and entry into, the heads of agreement, he and his brother had not gone ahead with the proposed $47.5 million overall purchase, or even the $35 million for the Lantrak NSW business. Instead, Mr Yammine had had to conclude a sale valuing the latter at about $13 million. Secondly, as Mr Liemant said, he wanted to maintain a relationship with Mr Yammine, who was capable of driving customers to that business and was not subject to any restraint of trade.

135    Accepting that the heads of agreement were not binding, it is difficult to think that Mr Liemant could have believed that Mr Yammine would have been “happy with” a deal in which he had come out so far behind his expectations of the worth of what he had to sell and that all of the professionals and Mr Liemant had adopted in the heads of agreement. As I have found above, Mr Yammine had refused to enter into a restraint of trade as his “security” for Mr Liemant’s assurances that he would “honour the deal” and pay the balance later. I do not consider that Mr Yammine can be viewed as simply expressing a seller’s regret.

The Melbourne Airport meeting

136    On 20 June 2019, Mr Yammine arranged a meeting in a restaurant in Melbourne airport with Mr Liemant (the Melbourne airport meeting). Mr Yammine had flown there with a friend, Ellie Akkawi. Mr Akkawi had not met Mr Liemant before. Mr Yammine said that Mr Liemant told him “I will always honour our deal”, that he would get it done, but needed time to raise the funds. They also discussed the sale of the trucks at this meeting.

137    Mr Liemant said that the conversation “was all about the trucks”. He denied saying anything about honouring the deal or needing time.

138    Mr Akkawi said that during the meeting he heard Mr Yammine ask Mr Liemant “when are you going to fulfil the payment of the 22 million?” to which Mr Liemant responded “Just be patient and bear with me and everything will be sorted”. Mr Akkawi said that he walked off to have a cigarette and left the other two in discussion. Mr Akkawi was unshaken in cross-examination in his account of the above conversation and I accept his evidence.

139    On 28 June 2019, Mr Touma emailed Mr Peeke referring to his instructions “that our client has communicated the below offer to your client”. The email set out details of an offer to sell RTS’ and Nojo’s business and assets and for Mr Yammine to enter into a contract not to compete in relation to haulage in consideration of the payment of $15 million payable in three instalments. The email sought a response by 3 July 2019.

140    Mr Peeke had a discussion with Mr Touma later on 28 June 2019 and sent him an email referring to what they said. He wrote that the Liemant side had no detail about the assets or business but “crudely” understood that the assets were worth between $5 and 6 million so that the goodwill component in the offer was about $10 million. He said that “[w]e would not be able to proceed on this basis”. Mr Peeke suggested that this may change if his understanding of the value of the assets were incorrect.

141    On 2 July 2019, Mr Touma emailed Mr Peeke with Nojo’s financial statements, an asset schedule and their valuation. Mr Peeke forwarded this to Mr Liemant, noting that the assets at market value were worth $6.1 million. On 3 July 2019, Mr Peeke emailed Mr Touma saying that that they did not wish to proceed with the offer.

142    Nothing further transpired in relation to this offer. However, as the Liemant parties submitted, Mr Touma’s correspondence did not suggest that Mr Yammine had instructed him to propound a claim that they owed, or had promised to pay, $22 million in addition to the consideration payable under the sale agreement. I have taken this omission into account in evaluating the evidence as a whole and the parties’ submissions but, because at this time Mr Yammine still trusted Mr Liemant, I do not consider that he believed that Mr Liemant would not do as he had promised, when he could.

The 22 August 2019 meeting at Mr Yammine’s home

143    On 22 August 2019, Mr Liemant came to Mr Yammine’s house for brunch and met with him and Ms Mikhael to see their new baby. Mr Yammine said that he enquired “how’s the funding going?” to which Mr Liemant said that it was going well, as was his business. Mr Yammine asked how they were going to finalise the deal and Mr Liemant told him “Norm, I’m going to get this done” and that he mentioned a possible sale of a cornerstone of his business. Mr Yammine said that, while holding his baby daughter, Mr Liemant said “I will honour the deal. It’s your kids’ super”. At that time, Mr Yammine said that he needed money and asked for the next six months of consultancy fees to be paid upfront.

144    Ms Mikhael said that during the conversation Mr Liemant kept assuring them, saying “I will honour the rest of the money”. She said that he addressed her saying “don’t worry, I will honour your kids’ super. There’s no need to worry”. In cross-examination, Ms Mikhael said that she understood Mr Liemant’s statement about “kids’ super” to refer to the $22 million. She disputed that the expression “I will honour your kids’ super” was not expressed in language that Mr Liemant used but was similar to her husband’s mode of expression. Ms Mikhael said that her husband did deals on a handshake and trusted Mr Liemant. She denied that Mr Yammine said to Mr Liemant that he was not happy with the deal and wanted something more.

145    Mr Liemant said that, at this meeting, Mr Yammine told him that he was not happy with the deal they had done and felt that he was still owed money. He said that no figure was discussed: “It was more of a concept”. He said that he told Mr Yammine: “anything moving forward has to be part of what we can do to help build the business. If you help build the business, I will look after you” (emphasis added). Mr Liemant said they discussed how Mr Yammine could help in that regard. He denied saying that Mr Yammine did not need to worry and “I will honour your kids’ super”. Rather, Mr Liemant said that Mr Yammine told him: “you’ve got to understand, Gary, the money I feel I’m owed, that’s my kids’ super”.

146    I am not satisfied that Mr Liemant said “I will honour your kids’ super” on this occasion. As junior counsel suggested when cross-examining Ms Mikhael about this mode of expression, it was, and struck me as, dissonant with Mr Liemant’s manner of speech and more akin to Mr Yammine’s. I think it is more likely that Mr Yammine used that expression in making a demand of Mr Liemant. However, I am satisfied that Mr Liemant said at the brunch that he would “honour the deal”. In my opinion, as his remark to the effect that “If you help build the business, I will look after you” revealed, he was used to promoting the idea that he would do the right thing by Mr Yammine. By this time, Mr Liemant knew that he had led Mr Yammine to expect that he would be paid the balance of what they had identified in the negotiations for the heads of agreement as the price of $35 million for the Lantrak NSW business. Mr Liemant did not tell Mr Yammine that he was unwilling to proceed with that price because it overvalued the business. Rather, he said that the Liemant side could not raise the funds to pay the $35 million. On Mr Liemant’s own account, Mr Yammine had helped build, indeed, driven that business’ growth before the conclusion of the sale. Mr Liemant knew that Mr Yammine had not been paid fully for the first half share that he had “sold” and had proposed the terms of the 9 October note because he needed money. Mr Liemant’s admission that he said “I will look after you” at Mr Yammine’s home in connection with seeking more assistance (if Mr Yammine helped to build the business) does not sit easily with the commercial treatment he had meted out to Mr Yammine.

Mr Yammine receives new financial information

147    In September 2019, Mr Yammine had a meeting with Mr Simpson, who was one of the Lantrak NSW employees referred to in the 9 October note. Mr Simpson told him that the business was earning revenue between $10 and $12 million per month and that Mr Liemant was looking to sell 10% for $10 million. Mr Simpson said that the then value of the Lantrak NSW group was about $100 million.

148    Soon after this, Mr Pinto gave Mr Yammine the three documents he received from Mr Tromboli described at [40] above, namely unaudited summaries of the Lantrak group’s results for the years ended 30 June 2016, 2017 and 2018 and the Lantrak group balance sheet as at 31 March 2018. When he received this new financial information, Mr Yammine formed the view that Mr Liemant had lied to him about the Lantrak group’s financial position.

The 5 October 2019 discussion

149    Mr Yammine subsequently met with Mr Liemant on 5 October 2019 (the 5 October 2019 discussion). Mr Yammine told Mr Liemant that at his meeting with Mr Simpson, the latter had informed him that the Lantrak NSW group was earning revenue of between $10 and 12 million per month, and was valued at $100 million and that Mr Liemant “was going to sell a cornerstone for $10 million”. Mr Yammine gave this evidence about part of that discussion:

what did Mr Liemant say in response? --- He basically said, … “I’m doing that so I can pay you back or pay you the money to finish the deal.” … I told [sic] and I go, “It’s unfair.” Like, it’s unfair … “your group was never worth that much, you know? It was never worth that much, and, you know, it’s unfair … I built this business up for years, you know. You got to make right.” He goes, “I always make right. I always make right,” … And that’s why he was doing these things to … get the money.

(emphasis added)

150    On that afternoon, after this discussion, they exchanged the following text messages:

Mr Yammine:     It was Good to see you brother safe flight

Mr Liemant:     Good to see you Don’t worry I will always honour What is right Together we can achieve great things

Mr Yammine:     100 percent brother god bless

(emphasis added)

151     Mr Liemant gave this evidence about his text message in the above exchange:

And you told him, “Don’t worry. I will always honour what is right.” Do you see that? --- Yes.

And that’s what you told him when you spoke with him, didn’t you? --- When I spoke to him, I said I will always do the right thing by you, in reference to moving forward in the company. There was no reference in that comment to the previous deal.

…

HIS HONOUR: … can I ask you what was it that you were assuring him about when you said, “Don’t worry”? --- Well, Mr Yammine started that meeting with, “I’m not happy. I still feel I’m owed money from the deal”, and I … made it clear to Mr Yammine that the only way that we could do a deal moving forward was based on the future performance of the company and if he would contribute to that and we had a vision to try and get investment into the company, grow the company to a size where we could potentially list it, float it. And what I was referring to that is that I would always look after him for his contribution through that journey.

(emphasis added)

152    I found Mr Liemant’s explanation about honouring a possible future deal unconvincing. What is more, his text message was about assuaging Mr Yammine’s concern (“Don’t worry”), not about explaining a new venture. The text was, of course, carefully non-committal in what it was that Mr Liemant would honour (in his expression, not Mr Yammine’s) just as his previous assurances to Mr Yammine had been crafted to placate and encourage him to believe that Mr Liemant was working toward paying him the balance of what they had agreed, in negotiating the heads of agreement, was the value of the Lantrak NSW group; that is, that “I will always honour What is right”.

The 11 October 2019 Docklands meeting

153    Next, Mr Yammine and Mr Liemant arranged to meet at about 2:30pm on 11 October 2019 at a Subway food outlet in Docklands, Melbourne (the Docklands meeting). Mr Yammine sent Mr Liemant a text when he arrived, saying where he was. He gave this evidence in chief:

As best as you can recall, what was said? --- Basically, … I spoke to Gary. I said I want to see you to discuss the numbers … I went down to Gary, and I said, “You could have settled the deal. You lied to me. These are the numbers.” He brought a set of numbers with him, which were completely different to the ones that I had, and I said, “You know, this is not fair. These are my kids’ super, you know. You so what are you going to do to make this right, you know? Like, you we’ve got to come up with something.” And then that’s when Gary said to me, “Look, you know, we will make right.” And that’s when he said to me … to give me $10 million for … the non-compete and to finalise the deal, the one that we … started to finish it off completely.

…

what did Mr Liemant say about the non-compete and what did you say? --- Basically, Gary said, “I want you to go into a non-compete for 10 years, … and I will pay you the $10 million,” after I had showed the numbers that he could have settled this still at the beginning, and I just wanted to that’s it. I wanted to finish. Like, I just wanted just to just get away because after I had seen them numbers, I had realised that he had betrayed my trust, and I … knew that I just wanted just to get away, you know? And just … pay me my money. Let me get on with my life and my family’s life.

And what did you say when he said he wanted to pay you $10 million for a non-compete? --- I agreed, and I said get Simon [Peeke] to send to Nazih [Touma] a … what you’re thinking. Like, we agreed on … the agreement. Like, we agreed on the 10 million, and I said get Simon … to send it to Nazih, and we will finish. And then, basically, we just ate and, you know and I remember I was going to get him some work. I had a like, some other stuff for him to look at, you know, and things. Just, like, we’re going to keep the relationship together open. There was no bad blood. It was just we agreed, and we were moving on.

(emphasis added)

154    Mr Yammine accused Mr Liemant of lying to him because the Lantrak group accounting documents that Mr Pinto had obtained from Mr Tromboli and passed onto him showed that “You could have settled the deal”. Mr Liemant kept responding “Norm, the business is not going well”. Mr Yammine said that, eventually, Mr Liemant “agreed to pay me 10 to go into the non-compete to finalise the deal” and added “I will get Simon [Peeke] to work out the formula on how to do it”. Mr Yammine denied that the payment was to be conditional on the business earning $5 million.

155    Mr Yammine said that the agreement they had made included the payment of $10 million as replacement of the $22 million in order to finalise matters. He thought that was because, by entering the non-compete agreement, he would be giving up his security for the $22 million. He denied that part of this agreement was that he also would drive the business of Lantrak NSW to a $5 million per year net profit. As he said, “the business was working. And it was making profits … it was a good business. I just wanted my money. I had commitments”.

156    Mr Liemant said in chief both he and Mr Yammine brought financial documents to the Docklands meeting. He explained:

Mr Yammine … felt that he was owed more money … he expressed a number of times he wasn’t happy with the deal. So we talked about how we could do something moving forward. … we proposed … a performance-based consultancy agreement moving forward with a non-compete clause in it, and it was to be an amount of money. We talked about $10 million over a five to 10 year period.

All right. How did that proposal go over? --- It seemed to be favourable to Mr Yammine.

All right. Would you have needed to fund that if he had agreed? --- No, we could have done that out of cashflow because it was to be done over a five or 10 year period. And again, it was … based on Norm being able to achieve a 5 million net profit per year.

If a lump sum upfront was needed, would you need to fund that? --- We would have, yes.

All right. And how did the meeting finish up? --- It seemed … quite positive.

(emphasis added)

157    In cross-examination, Mr Liemant said that he had a legitimate concern that if Mr Yammine were not subject to a non-compete agreement, he could have gone into competition and taken Lantrak NSW’s clients. However, Mr Liemant denied that the $10 million payment was just for Mr Yammine’s agreement not to compete for 10 years, saying “It wasn’t purely a non-compete agreement; it was a performance-based consultancy agreement”. He then gave this evidence:

Now, I want to suggest to you that you understood after the meeting at Docklands on 11 October 2019 that you had actually reached agreement with Mr Yammine, hadn’t you? --- It was a proposal … in regards to the consultancy agreement. Nothing was signed at that point, but Mr Yammine seemed favourable to it. Yes.

Well, this wasn’t a contract for the sale of land; nothing needed to be in writing, did it, for this agreement to be workable. You didn’t understand that to be the case? --- No, I would have wanted that in writing, yes, to clarify.

Well, you didn’t need anything in writing for the sale of the first part of the business, did you? --- I had learnt a serious lesson from that at this point - - -

I see? --- - - - so I wasn’t prepared to do any further deals unless they were documented.

(emphasis added)

158    Mr Liemant denied that Mr Yammine said at the meeting that he would not make any further claims against Lantrak if he were paid $10 million for a consultancy agreement and in consideration of agreeing not to compete. Mr Liemant also denied that Mr Yammine and he agreed at the Docklands meeting that Mr Yammine and his entities would not compete with the Lantrak group in New South Wales in consideration of the Liemant parties paying $10 million. He said that “no agreement [was] reached. It was a proposal”. He rejected the proposition that there was no requirement for Mr Yammine to continue to work at Lantrak as part of the agreement.

159    On 12 October 2019, Mr Yammine and Mr Liemant exchanged the following texts after Mr Yammine had driven home to Sydney:

Mr Yammine:     Just got home brother thank you for understanding and honouring what is right I’ve got ur back till my last breath

Mr Liemant:     Glad you got home safe A good partnership always respects each other Have a good weekend

Mr Yammine:     Me and Wally are sorted and all back to normal thank god now let’s and Lantrak up there bigger than ever all of us together will create the greatest things his my brother and I’m proud of the man he has become now it’s our turn to get you my brother where you need to go much love gaz enjoy ur weekend

(emphasis added)

160    After the Docklands meeting, Mr Yammine told Mr Pinto that he had “agreed to $10 million. We’re going into a non-compete”. Mr Pinto said that Mr Yammine told him Mr Peeke would contact Mr Touma to finalise the transaction. Mr Pinto denied that Mr Yammine said as well that he had to help grow the business to it earning a profit of $5 million per year. Mr Pinto said that, after returning from Melbourne, Mr Yammine had said “Look, I’ve agreed to 10 million. We’re going into a non-compete” and had told me that “he had reached the agreement with Gary and that Nazih [Touma] and Simon [Peeke] were going to nut it out and formalise the agreement”.

161    Following the Docklands meeting, Mr Liemant asked Mr Peeke to draft the key terms of an agreement to put to Mr Yammine. On 16 October 2019, Mr Peeke emailed his first draft to Mr Liemant for comment. Mr Peeke said much of the document comprised his own work rather than being based on what Mr Liemant told him was to form part of the deal. However, Mr Peeke did not give any detailed evidence of anything that Mr Liemant may have had told him about what was said at the Docklands meeting.

162    Mr Peeke amended his draft, and on 23 October 2019, sent that version to Mr Touma. He wrote: “Please see attached draft thoughts on the agreement with Norm” (emphasis added). On 24 October 2019, Mr Peeke emailed a further draft to Mr Touma (being the first time he sent any draft externally) saying “I think [this] is representative of recent discussions”. Mr Peeke’s drafts required Mr Yammine to work for 10 years, not to compete, to drive a sustainable net annual profit of $5 million and to waive any further claims. However, Mr Peeke gave evidence that he had had no discussions with anyone on Mr Yammine’s side about the version that he sent Mr Touma, but he understood from Mr Liemant that there had been some discussions about what the deal structure would look like. Mr Peeke said that Mr Liemant had suggested some changes in the new version “to make it a bit more aggressive in terms of the term”.

163    Mr Yammine said that Mr Touma had explained a document to him that Mr Peeke had sent to Mr Touma but that he (Mr Yammine) had not agreed to the proposal in that document. Mr Yammine did not agree with Mr Peeke’s proposals. He said that he had agreed not to compete for 10 years if he was paid $10 million. Mr Touma showed one or both of Mr Peeke’s emails of 23 or 24 October 2019 to Mr Pinto.

164    Mr Yammine said that he did not reply to Mr Peeke’s emails of 23 and 24 October 2019 or ask Mr Touma to reply to them. Mr Yammine said that, instead, he spoke to Mr Liemant and had the following conversation:

“Gary, we said we’re [scil: you’re] going to pay the money.” He goes, “Norm, I can’t get the funds.” I said, “If I can get you the funds, would you pay me the money?” He goes, “Mate, if you can get me the funds, I will pay you the money”.

(emphasis added)

165    Mr Yammine explained:

So that’s why I introduced him to Sam Morris, and I introduced him to Anthony Maroun who are happy to finance the agreement we had in place for me to go into a non-compete and for me to settle the properties I had committed to because of the agreement I had with him.

(emphasis added)

166    Mr Pinto recalled overhearing a conversation that occurred between November 2019 and January 2020 in which Mr Liemant told Mr Yammine that he (Mr Liemant) was working on obtaining money through some transactions with big companies in Queensland “to raise the $10 million that he was going to pay Norm”.

The discussions with Mr Morris

167    Mr Yammine’s introductions to Mr Morris and Mr Maroun (see [165] above) occurred at different times. The first was in September 2019, when Mr Yammine introduced Mr Liemant to Mr Morris, who then worked at SFM Queensland as a senior finance agent. In January 2020, Mr Yammine put Mr Liemant in contact with Mr Maroun, who was managing director of an earthmoving business, Earthworx, and had known Mr Yammine for about 10 years by the time of the trial.

168    Mr Morris met Mr Liemant on 25 September 2019. Later that day, he emailed Mr Liemant and Mr Peeke asking for the Lantrak group’s 2018 and 2019 consolidated financial statements and confirmation of all its debt facilities. He wrote that he was “happy to sign any type of NDA [scil: non-disclosure agreement] or CA [scil: confidentiality agreement] you have to ensure the information remains confidential at all times”.

169    Having seen and heard Mr Morris give evidence, I formed the view, for reasons that appear below, that he was not a man of his word and that his evidence on any material matter should not be accepted unless it was independently corroborated.

170    Next, on 24 October 2019, Mr Morris emailed Mr Pinto with a proposal for the purchase of a sand mine for $30 million with the first instalment of $10 million payable on settlement. In the email, he asked, “Please have old mate call me”, being a reference to Mr Yammine, whom he said he had met in about late 2018 or early 2019. On 28 October 2019, Mr Pinto forwarded Mr Morris’ email to Mr Liemant.

171    On 11 December 2019, Mr Liemant, Mr Peeke and Mr Yammine met at a café in Hunters Hill in Sydney. Mr Liemant asserted that he was still meeting with Mr Yammine at this time because “we considered Norm an important part of the business. We wanted to somehow retain his ability to … generate revenue into the business” (emphasis added). He said that Mr Yammine told them that he was not prepared to wait five or 10 years “for my money. I want it now … I don’t care how you get it.” Mr Peeke said that this was not possible. Mr Yammine said that he wanted the $10 million paid upfront and Mr Peeke responded that that was “something we couldn’t do”.

172    Importantly, Mr Liemant asserted that, at this stage, “I was still of the mindset that I wanted to retain Mr Yammine”, but added that he saw that “as an unreasonable demand … I sort of wanted to try and continue discussions to see whether we could get some sort of resolve on it”. After this meeting, Mr Yammine and Mr Liemant exchanged texts. Mr Liemant wrote: “Thanks good to see u Love your vision I’ll catch up with Sam [Morris] in Queensland”.

173    Mr Liemant said that his text referred to their discussion of “a path forward in that meeting. We talked about … potential landfill sites, how Norm could assist to bring business back into Lantrak New South Wales”. He said that they also discussed how the Liemant parties could get finance, including for the “option” of the $10 million upfront.

174    Next, Mr Morris met with Mr Liemant on 18 December 2019 in his Queensland office at the Gold Coast. Mr Morris asserted that, at this meeting, “Gary wanted to quickly raise $10 million in debt to pay Norm”, and, once that occurred, to look at the broader restructuring of his finances. Mr Liemant gave evidence that Mr Morris “was pushing the $10 million for Norm”, but that he (Mr Liemant) was looking at a number of financiers and how the group could move forward. He denied that he had said anything about the $10 million and Mr Yammine on that occasion.

175    On 19 December 2019, Mr Morris emailed Mr Liemant purporting to summarise Mr Liemant’s priorities from the previous day’s discussion, saying that:

I will give [you] my word nothing with [sic] go to NY[ammine] unless you tell me otherwise, and when I spoke to him yesterday he confirmed what we discussed, which is that he would read [sic] it anyway!

176    Mr Morris asserted in evidence that, in this email, he meant that he would not be sending Mr Yammine, and Mr Yammine would not read, anything that Mr Morris and Mr Liemant exchanged. In his email, Mr Morris said that he had made preliminary enquiries with his contacts on a high-level basis and was confident that he could raise $50 million for the Liemant group, on the basis of an EBITDA of $17 million, using a convertible note structure that would allow acquisition of about 45% of the equity in the group.

177    Despite my reservations about Mr Morris’ integrity and veracity, I find that, in the meeting on 18 December 2019, Mr Liemant, not Mr Morris, brought up the topic of raising $10 million to pay to Mr Yammine. That is because of Mr Liemant’s subsequent conduct, which I discuss below, that indicated his decision not to pursue raising money to pay Mr Yammine. Had Mr Morris pushed this barrow in the meeting of 18 December 2019, and had it not then been a matter which Mr Liemant wanted to pursue, Mr Liemant would have had no reason to continue discussions with Mr Morris with whom he only ceased to deal in early February 2020. And, if Mr Morris had raised the topic in the way in which Mr Liemant described, it is difficult to understand why, on Mr Liemant’s account of the conversation, he (Mr Liemant) said nothing about wanting, or not wanting to raise, any money to pay Mr Yammine, even though, as he explained in respect of his text messages to Mr Yammine of 11 December 2019, he was considering this option (see [172]–[173] above).

178    On 28 January 2020, Mr Morris emailed Mr Liemant a draft agreement or term sheet between LoftusLane Capital Partners Pty Ltd and the Lantrak group under which LoftusLane would act to arrange a sale or capital raising. The draft set out steps for the proposed course of action and, under the heading ‘Scope of work’, had the following paragraph:

The initial transaction is to, as soon as humanly possible, obtain funding via a debt or equity facility to the minimum amount of $10,000,000.

179    Mr Morris said of the reference to the $10 million that Mr Liemant had made “it pretty clear [that] it was to pay Norm”, but that he (Mr Morris) did not know what the deal was or any details about it, including any time for payment.

180    Mr Liemant said that he had not mentioned anything about funding $10 million as soon as humanly possible, adding “it was apparent, though, Morris … had an agenda to raise $10 million”.

181    Early on 31 January 2020, Mr Morris emailed Mr Pinto with a draft email saying:

ERROL – Draft email to Gary and new engagement. Please review and give me a call when you can.

(emphasis added)

182    In the draft email to Mr Liemant, Mr Morris wrote that he would call Mr Yammine later that morning and, subsequently, would then call Mr Liemant if they had not been in contact beforehand. The draft then said a new engagement letter from LoftusLane was attached and asked Mr Liemant to note this was “PURELY a raise of debt/equity of $10m”.

183    Later on 31 January 2020, Mr Morris arranged for another letter or term sheet to be sent from LoftusLane to Mr Liemant headed ‘Capital Raising for Lantrak – AUD$10m’. This contained many similar terms to the 28 January 2020 draft, but described a different transaction, as the differing headings of the letters reflected. However, this letter read, under the heading ‘Scope of work’:

This engagement document relates solely to the initial transaction to obtain funding via a debt and/or equity facility to the minimum value of AUD$10,000,000.

(emphasis added)

184    Mr Morris said that Mr Liemant had asked for a change in wording of the earlier draft, “[i]n particular, he wanted it to specify the urgency of the 10 million and that that was … the most important part of the engagement”. Mr Liemant did not recall looking at the 31 January 2020 letter.

185    In cross-examination, Mr Morris accepted that, when he wrote the 31 January 2020 letter, Mr Liemant had told him that, first, the urgency in the initial description of the larger transaction described in the 28 January 2020 draft was no longer present and, secondly, there were potential issues with the Lantrak group’s bank, which Mr Morris said in evidence was National Australia Bank (NAB) (as opposed to Westpac), and other financiers about any subordination of debt.

186    On Saturday, 8 February 2020, Mr Morris emailed Mr Liemant referring to their discussion the previous day. The email outlined three options that Mr Morris was considering as a “short term facility to allow us to payout NY and then roll into much cheaper facilities so as the servicing component doesnt [sic] strangle your business”. The three options were for either a $10 million or $22 million debt facility subordinated to the NAB and another financier, or a $65 million facility that would involve paying out the Lantrak group’s existing facilities. Mr Morris asked Mr Liemant to call him over the weekend to discuss. Mr Morris said that, subsequently, he had spoken with Mr Liemant, Mr Peeke and Mr Maroun on a telephone call.

187    Nothing came of either proposal described in the 28 and 31 January 2020 letters from LoftusLane. Ultimately, Mr Liemant told Mr Morris that he (Mr Liemant) had spoken to Mr Yammine and had told him that he was not proceeding so that Mr Morris should stop working on the proposal.

188    Mr Liemant was not cross-examined about the 28 and 31 January 2020 letters or the 8 February 2020 email or any conversations in relation to it.

189    Mr Morris regarded Mr Liemant as his client at their meetings on 18 December 2019 and during January 2020. He asserted that, in sending his email to Mr Pinto on 31 January 2020, he was “advising both sides, the buyer and seller” and that this was “something I do very regularly”. He could not explain why he was contacting Mr Pinto with a draft of what he proposed to send his client (Mr Liemant) for Mr Yammine’s or Mr Pinto’s input on the draft.

190    On 22 April 2020, Mr Morris emailed Mr Pinto in response to a discussion they had had. Mr Morris set out a chronology of his meetings with Mr Liemant and attached copies of the three LoftusLane term sheets that he had sent to Mr Liemant on 28 and 31 January 2020 and 8 February 2020 together with a copy of his 8 February 2020 email to Mr Liemant. He gave this evidence about his conduct in sending the 22 April 2020 email to Mr Pinto, that senior counsel for the Yammine parties described as exhibiting, with some understatement, “an insouciant attitude to confidentiality”:

And you’re sending it to somebody who is not your client. Now, aren’t you sending Mr Pinto what you regarded as confidential dealings with Mr Liemant, your client? --- Yes.

Well, why did you do that? --- Same as my answer before: to update both sides.

(emphasis added)

191    Mr Morris then asserted that he was “not sure” if he ever told Mr Liemant that he was sending letters and exchanges between them to Mr Yammine through Mr Pinto. I do not believe that evidence. Ultimately, Mr Morris, after some prevarication, agreed that what he had done in forwarding to Mr Yammine through Mr Pinto a detailed list of his dealings with Mr Liemant was a gross breach of confidentiality. That conduct was dishonest and a breach of Mr Morris’ early promise to Mr Liemant that he would not disclose their dealings to Mr Yammine. Based on Mr Morris’ character as revealed in his above unscrupulous behaviour, I formed the adverse view of his general credibility that I described at [169] above.

The discussions with Mr Maroun

192    Mr Maroun had dealt with Mr Yammine as a subcontractor and friend. He knew that, in about 2016 and 2017, Mr Yammine and Mr Liemant owned and operated Lantrak NSW, which Earthworx engaged as a subcontractor.

193    In early 2020, Mr Maroun spoke to Mr Yammine. Mr Yammine had told him that he was finalising his relationship with Lantrak. Mr Yammine told Mr Maroun that Mr Liemant owed him $10 million, but did not give details of the deal to Mr Maroun.

194    Mr Maroun then phoned Mr Liemant and introduced himself. They briefly discussed that Mr Maroun was interested in acquiring businesses in their industry and agreed to catch up on a later occasion.

195    In March 2020, Mr Maroun phoned Mr Liemant again. Mr Maroun said that he asked about whether the $10 million owing to Mr Yammine would be paid at the end of that month and that Mr Liemant replied that he was working on it and would arrange a face to face meeting the next week. Mr Maroun told him that his family business did a lot of second-tier lending and enquired if Mr Liemant had any interest in selling part of Lantrak so that he could honour his agreement with Mr Yammine, whom he understood had commitments to meet at the end of March 2020. They arranged to meet in Sydney but Mr Liemant had to return to Melbourne before they could.

196    Mr Liemant rang Mr Maroun after this conversation. He thanked Mr Maroun for his interest but explained that there would be a conflict with the Lantrak group’s business if it entered into a deal with Mr Maroun’s earthmoving business. Mr Maroun said that he told Mr Liemant that “I was always trying … to make sure that you can … honour your agreement with Mr Yammine”. He said that Mr Liemant replied that he was selling an interest in a quarry in Queensland to a multinational to enable himself to be in a position to pay Mr Yammine the $10 million which they had agreed. However, Mr Maroun did not discuss with Mr Liemant what the agreement was, what were its terms or the stage it had reached. I accept Mr Maroun’s evidence, which was not challenged in cross-examination.

The other witnesses

197    Tony Moit was a director of Moits and had known Mr Yammine most of his life as they were first cousins. Mr Moit said that he was present at two or three conversations that he overheard between Mr Yammine and Mr Liemant because, as was his wont, Mr Yammine had his mobile on speakerphone. Mr Moit said that, in those conversations, the two speakers spoke about a deal for the sale of Mr Yammine’s business and Mr Yammine asked: “when can I receive some money?” and “when’s the deal going to end?” Mr Liemant responded saying “I’ll make good”, “I’ll honour my word”, “You know I’m going to make good” and “I always make good”.

198    However, Mr Moit did not know the terms (or even the amounts) of any deal between the two speakers and he did not identify any particular time at which the conversations occurred.

199    Elie Rehayem was the logistics manager for Lantrak NSW until about March 2020. He was aware that a deal was taking place between Mr Yammine and Mr Liemant, but not of its detail. He said that, in 2020, he was at the McGraths Hill office of Lantrak NSW when Mr Yammine and Mr Liemant were also present and clearly remembered hearing Mr Liemant say “I will honour the deal”.

200    Eli Shaheen had known Mr Yammine for about seven years at the time of the trial and worked for Whale One Group, an employer unrelated to the parties, that was involved in the civil mining and infrastructure industry. He had met Gary and Mark Liemant on a business trip to Darwin in 2017. In 2018 and 2019, Mr Shaheen had asked Mr Yammine to mentor him and spent two or three days a week doing business development work for Whale One Group while with Mr Yammine. In the course of this, Mr Shaheen accompanied Mr Yammine to observe and learn. Mr Shaheen said that he recalled being in Mr Yammine’s car between 2018 and 2019 when Mr Yammine was conversing on speakerphone with Mr Liemant about business transactions. He said that Mr Liemant referred to Mr Yammine as a “brother” and said “I will never let you or your family down. I will honour the deal”.

201    The evidence of Mr Moit, Mr Rehayem and Mr Shaheen did not identify what, if any, deal had been done, that Mr Liemant said he would honour. I accept that Mr Liemant used that terminology, but I do not consider that this evidence is of any substantive assistance for the purpose of determining the substantive issues in the proceeding. That is because none of those witnesses had any knowledge of what, if any, deal Mr Liemant may have been discussing. It is equally possible that, rather than confirming that he would honour a particular, but unidentified, deal (which could perhaps have been just the sale agreement itself, including the payment due on 29 March 2019, in Mr Moit’s and Mr Shaheen’s cases) he could have been confirming that, if he made a new deal, he would be good for his word. Absent more context of the subject matter of the overheard conversations, this evidence of Mr Liemant’s assurances is too vague and unspecific to enable me to make any finding that they related to honouring any particular deal.

The collateral contract Issue

The Yammine parties’ submissions

202    The Yammine parties argued that Mr Liemant, on behalf of the Liemant parties, orally agreed in the 9 October conversation that, in order to accommodate the financial position of Lantrak Holdings, it would enter into a written agreement for the purchase of the Yammine parties’ shares in the Lantrak NSW group for $13 million, instead of $35 million, and that in consideration of the Yammine parties entering that written agreement, the Liemant parties agreed in a collateral contract that they subsequently would pay the $22 million balance of the $35 million to the Yammine parties. The Yammine parties contended that the Liemant parties were in breach of the collateral contract by not honouring it. They submitted that there was no inconsistency between the terms of the sale agreement and the collateral contract. They asserted that the terms of the collateral contract were sufficiently certain, being the agreement as to the subject matter of the sale, its price and, the inference that they said should be drawn, that the price of $22 million would be paid within a reasonable time. The Yammine parties accepted that there was no indication that the parties required that the oral terms be reduced to writing.

203    The Yammine parties also accepted that the oral evidence had to be assessed having regard to the commercial context that Mr Yammine and Mr Liemant, as the principals, were “hard-driving, risk-taking business people” who were prepared to deal informally. They acknowledged that the claim that a businessperson in Mr Yammine’s position would have accepted an oral promise to pay such a substantial sum as $22 million may appear “surprising”. However, they contended, the explanation lay in Mr Yammine’s trust of Mr Liemant.

204    The Liemant parties argued that the oral evidence did not establish that Mr Liemant had made a promise that the Liemant parties would pay $22 million. The Yammine parties disputed the Liemant parties’ submission that the evidence of the identity of the persons in the Lantrak group and its associates on whose behalf Mr Liemant made the promise to pay $22 million was unexpressed and imprecise.

205    The Yammine parties argued, formally, that the principle of law that a collateral contact must be able to stand consistently together with the main contract, as evidenced in a line of authority in the High Court commencing with Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133, should no longer be the law in Australia.

Consideration

206    I reject the Yammine parties’ argument that Mr Yammine and Mr Liemant made a collateral contract. First, such a contract would be wholly inconsistent with cl 11.7 of the sale agreement. Secondly, even if it were possible, despite cl 11.7, for the parties to the sale agreement (including both the Yammine parties and the Liemant parties) to make a collateral contract that the Liemant parties, or one of them, or one or more of their associates, would pay the Yammine parties $22 million in consideration of the latter entering into the sale agreement, it is impossible to identify with sufficient certainty what the terms of such a contract were. I will elaborate on these two reasons below.

207    Ordinarily, having executed the sale agreement the Yammine parties could not be heard to deny being bound by it, according to its terms, unless they could establish that their entry into it was induced by fraud, mistake or misrepresentation: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at 483–484 [33]–[36] per Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ. This is an incident of the parol evidence rule, as affirmed in Hoyt’s 27 CLR. There, Knox CJ (at 139–141) and Isaacs J (at 145–146), with both of whom Rich J agreed (at 148), held that a collateral contract cannot be inconsistent with the main contract. The parol evidence rule excludes oral evidence where the parties enter into a written contract that they intend wholly records their agreement.

208    Here, cl 11.7 of the sale agreement reflected expressly that the parties agreed that the terms of the sale agreement were a complete record of their contract, including the consideration passing between each of the parties for entering into it and superseded any prior representation not reflected in its terms. Thus, if the Yammine parties could now argue that they and the Liemant parties separately contracted, before or contemporaneously with entering into the sale agreement, that they would enter into it in consideration of the Liemant parties or one of them (or one or more of their associates) paying a further $22 million, the sale agreement could not operate consistently as a complete record of the contract between the parties, as they stated it would in cl 11.7. This is what Isaacs J explained in Hoyt’s 27 CLR at 146 as follows:

A principle that must govern the bargain of a contractual promise made in consideration of entering into the main contract is that the parties shall have and be subject to all (not some only) of the respective benefits and burdens of the main contract. When the collateral promise is truly consistent with the main contract, that principle has full play. The main contract is not then interfered with. The collateral contract alters, as every contract must, the contractual relations of the parties; but it does not alter, and from the simple statement of the bargain is not intended to alter, the contractual relations which are established by the main contract. When both are worked out, it may be that in the final outcome the parties are in the same position as if those contractual relations had been varied. But the practical result cannot affect the independence and legal effect of each contract …

(italic emphasis in original; bold emphasis added)

209    It is pellucid that if there were a collateral contract to pay an additional $22 million as consideration for the Yammine parties entering into the sale agreement, then cl 11.7 would be sterilised and offer the Liemant parties no protection against the very subject matter to which it was addressed. In essence, cl 11.7 was an express contractual term that reflected that the parties intended that the parol evidence rule would govern the application of the sale agreement as the complete expression of the whole agreement between all of the parties to it. The collateral contract that the Yammine parties assert relied on their entry into the sale agreement as consideration for the extraneous promise to pay $22 million. Such a contract could not provide a supplementary or complementary term that could operate consistently with the sale agreement expressing, as cl 11.7 affirmed, the entire agreement between its parties. Isaacs J in Hoyt’s (27 CLR at 147–148) (and see too Maybury v Atlantic Union Oil Co Ltd (1953) 89 CLR 507 at 517–518 per Dixon CJ, Fullagar J and Taylor JJ; Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 5 per Gibbs CJ, 11 per Mason, Wilson and Dawson JJ) debunked the basis on which the Yammine parties’ argument proceeded as follows:

where the main contract is relied on as the consideration in whole or part for the promise contained in the collateral contract, it is a wholly inconsistent and impossible contention that the other party is not to have the full benefit of the main contract as made; and the appellant's first contention is therefore unsound.

(emphasis added)

210    Recitals A, B and C, cll 2, 3, 7.1 and 11.7 of the sale agreement do not leave room for the operation of a collateral contract that the share sellers ((i.e., NJA as trustee of the NJA family trust) and the sellers’ representative (i.e., Mr Yammine)) would be entitled to receive additional consideration (nearly twice that payable under the sale agreement) in exchange for entering into the sale agreement. Knox CJ made this clear in Hoyt’s 27 CLR at 139–140 with this example:

if the main contract was to buy a house for £1,000, payable as to 25 per cent, in cash on signing the contract, and as to the balance by promissory notes of equal amounts at 12, 24 and 36 months, and the so-called collateral contract made by the vendor in consideration of the purchaser signing the main contract provided that the vendor should not be entitled to receive any cash but the whole purchase money should be paid by promissory notes extending over a period of five years, it seems clear to me that the so-called collateral contract would not be valid or enforceable at law or in equity, though it might possibly afford ground for a suit in equity for rectification of the main contract or be set up as a defence to a suit by the vendor for specific performance of that contract. The reason for this conclusion is that the alleged consideration for the collateral contract is the assumption by the purchaser of the obligations specified in the main contract, which obligations are immediately varied or abrogated by the collateral contract. The result is, in effect, as if one party said: "I will sign a contract to pay you £1,000 for a house, £250 in cash and the balance by promissory notes at 12, 24 and 36 months, if in consideration of my signing that contract you will enter into an agreement with me that you will not seek to enforce payment of the £250 cash or delivery of the agreed promissory notes but will accept other promissory notes of different amounts and currency." In such a case the consideration for the so-called collateral contract is the assumption of obligations which, ex hypothesi, the purchaser does not, and does not intend to, assume.

(emphasis added)

211    If the Yammine parties could assert and then enforce a collateral contract that the Liemant parties had to pay them a further $22 million, it would foist on the Liemant parties an obligation that a reasonable businessperson in the position of the parties would have understood the sale agreement to record that they did not intend the Liemant parties would assume when executing it.

212    In any event, as I have said, there is an independent basis to reject the collateral contract claim. This is because the terms of such a contract, assuming (contrary to my finding above) it were capable of operating consistently with the sale agreement, are not capable of being ascertained in the commercial context in which the parties found themselves.

213    In the 9 October conversation (and thereafter), Mr Liemant told Mr Yammine that the Liemant parties and their associates could not raise the finance at that time to enable them to pay a purchase price in the order of $35 million. I reject the Liemant parties’ argument that there was uncertainty as to the persons who would contract on whose behalf Mr Liemant spoke. Both men, in the position of a reasonable businessperson, knew that Lantrak Holdings was the owner of 50% of the shares in Lantrak NSW and the earlier negotiations, including their crystallisation in the non-binding heads of agreement, contemplated that Lantrak Holdings would be the purchaser of the outstanding 50% of the shares. Moreover, such a reasonable businessperson would have known that Lantrak Holdings needed to be involved in any attempt to raise a further $22 million. The reasonable businessperson would also have understood that Mr Liemant was giving the promise on both his and Lantrak Holdings’ behalf, given the relationship of trust that then existed between Mr Yammine and Mr Liemant. But that is not the end of the matter.

214    Mr Peeke gave unchallenged evidence that, when he commenced his consultancy for Lantrak Holdings, Mr Liemant had asked him to deal with both restructuring the Lantrak group’s finances and assisting in the completion of the purchase of the Lantrak NSW business. Mr Peeke negotiated with Westpac, the Lantrak group’s bank, and several other potential financiers and formed the view, which was unchallenged, that “we couldn’t raise finance to do the deal as it was represented in the heads of agreement”. Mr Peeke wrote his email of 9 October 2018 to Gary and Mark Liemant (see [87] above) suggesting an offer totalling $15 million, before Gary Liemant’s discussion later that day with Mr Yammine.

215    This provided some of the context in which to assess the contractual nature of the bare “promise”, asserted in the Yammine parties’ collateral contract, namely that the Liemant parties would pay an addition $22 million “subsequently”. Even on Mr Yammine’s account, the “honouring” of the promise had no time frame. And, Mr Liemant made the promise on the basis that he (and the Liemant parties and their associates) could not then pay or raise the finance to meet the expected price of $35 million. Both he and Mr Yammine must have understood that, unless that position changed, Mr Liemant and Lantrak Holdings would not be able to “honour” the promise. A reasonable person in their position would have understood that the performance of the promise by payment of an additional amount could only occur in the future and then only if the Liemant parties objectively would be in a new financial position that enabled them to make the payment. This begs the questions, what criteria governed, first, how the financial position of the Liemant parties would be evaluated to determine that they or their associates could raise or had the finance, and secondly, when the payment or payments had to be made.

216    A representation that is made in the course of negotiations can create a contract collateral to the main agreement if the words and conduct of the parties, viewed objectively, conveyed an intention that the representation, if acted on, would create a binding contract: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1 at 12 [22] per French CJ, Kiefel and Bell JJ, see too at 40 [130]–[131] per Keane J and at 59–60 [196]–[199] per Nettle J. There, a landlord, when negotiating a lease, represented that, when the lease came to an end, the tenant would be “looked after at renewal time” (see at 10 [13]). The majority held that this representation was not contractual and did not create a promissory or equitable estoppel against the landlord so as to prevent it from acting inconsistently. As Keane J explained (at 40 [131]): “Where the terms of an oral representation have been established as a fact, its construction is a question of law (Heilbut, Symons & Co v Buckleton [1913] AC 30 at 36; see also Handley, Estoppel by Conduct and Election, 2nd ed (2016), pp 79–80 [4-001])”, and it is a question of law whether the terms of the representation as found are too vague or uncertain to amount to consideration for the formation of a contract, citing Horton v Jones (1935) 53 CLR 475 at 477, 484–485, 488–489, 490–492.

217    Assuming that the “promise” was akin to a “subject to finance” clause in a contract, its “honouring” depended on the Liemant parties forming an honest, or honest and reasonable, opinion on whether they had, or could contract with a financier for, the means of making the payment or payments, and whether that decision had to be made within a reasonable time, or the obligation to do so extended indefinitely into the future: cf Meehan v Jones (1982) 149 CLR 571 at 581 per Gibbs CJ and 597 per Murphy J (who applied the single criterion of “honestly”), whose view (at 597–598) Wilson J favoured without deciding whether Mason J (at 592) was correct in using the combined criterion of “honestly and reasonably” to qualify the purchaser’s obligation to make a decision under a “subject to finance clause” as to whether the terms of proposed finance were acceptable: cf Factory 5 Pty Ltd (in liq) v State of Victoria (No 2) [2012] FCAFC 150 at [62] per Rares and Dodds-Streeton JJ, Foster J generally agreeing.

218    I am of opinion that Mr Liemant’s “promise” to “honour”, “subsequently”, the contemplated price of $35 million by paying $22 million later was too vague and uncertain to give rise to a contractual obligation. In Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at 105–106 [25] Gaudron, McHugh, Hayne and Callinan JJ said:

Because the search for the “intention to create contractual relations” requires an objective assessment of the state of affairs between the parties (Masters v Cameron (1954) 91 CLR 353 at 362, per Dixon CJ, McTiernan and Kitto JJ; ABC v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-549, per Gleeson CJ) (as distinct from the identification of any uncommunicated subjective reservation or intention that either may harbour) the circumstances which might properly be taken into account in deciding whether there was the relevant intention are so varied as to preclude the formation of any prescriptive rules. Although the word “intention” is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened (Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 348-353, per Mason J; Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) [240 CLR 45]). It is not a search for the uncommunicated subjective motives or intentions of the parties.

219    Here, Mr Liemant’s “promise” was akin to what Gleeson CJ described in Geebung Investments Pty Ltd v Varga Group Investments No 8 Pty Ltd (1995) 7 BPR 14,551 at 14,552

As the decision in [Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540] illustrates, the fact that parties to negotiations have agreed upon the major matter under discussion, confidently believing that the remaining matters to be decided will be sorted out later between them or their lawyers, without any difficulty, can sometimes create a misleading appearance of consensus. Such parties may well believe that they have a “deal” or a “bargain”, and speak and act accordingly, whilst at the same time knowing and intending that further and more detailed agreement is necessary. For that reason, conduct such as shaking hands, or using the language of agreement, can be ambiguous. The resolution of the ambiguity may require more detailed factual and legal analysis.

(emphasis added)

220    It follows that Mr Liemant’s “promise” to “honour the deal” was representational, not contractual. Even so, Mr Liemant intended Mr Yammine to act on the faith of the “promise”, as I find he did.

221    While Mr Yammine, at least, did not contemplate that there was any need for lawyers to document what he believed was the “deal” that Mr Liemant was offering, too much was left unspoken and unclear to enable a reasonable person in the position of the two men to identify the terms of any binding agreement concerning how or when any “honouring” or “promise” relating to the $22 million would occur.

222    For these reasons, the collateral contract claim fails.

The estoppel issue

The Yammine parties’ submissions

223    The Yammine parties argued that if, as I have found, the collateral contract claim failed, nonetheless the Liemant parties were estopped from denying that they had promised to pay $22 million in consideration of the transfer of the balance of the 50% of NJA’s shareholdings in Lantrak NSW. They contended that the entire agreement clause did not defeat such an estoppel based on the obiter dicta of Campbell JA, with whom Allsop P agreed on this observation (at 621 [33]), in Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at 734 [554]. They submitted that they had been induced to enter into the sale agreement in reliance on the Liemant parties’ “promise” to pay $22 million and would suffer detriment if the Liemant parties were unconscientiously allowed to rely on the entire agreement clause to depart from that promise. The Yammine parties asserted that the better view of the law is that a promissory estoppel can be used not only as a shield against, but also as a sword in support of, a claim.

Consideration

224    I am of opinion that the Yammine parties have not established that any estoppel enables them to assert, or precludes the Liemant parties denying, that Mr Liemant’s “promise” created an agreement that can be enforced. That is because, as I have found at [212]–[221], the Yammine parties failed to prove that Mr Liemant’s promise was sufficiently certain to create a contractual relationship.

225    In Legione v Hateley (1983) 152 CLR 406 at 435–437, Mason and Deane JJ held that it is necessary for any kind of promissory estoppel to exist that, first, the representation must be clear and unambiguous, and secondly, the other party would be placed in a position of material disadvantage were a departure from the assumption permitted. Ambiguous statements are incapable of creating a promissory estoppel. However, their Honours held that a representation can support promissory estoppel even though it is not express or clear in its entirety, so long as what is conveyed is clear and unequivocal about the subject matter of the representation (at 438–439, see too at 422 per Gibbs CJ and Murphy J dissenting).

226    Assuming in the Yammine parties’ favour that equity will not allow an entire agreement clause to preclude them from relying on circumstances that would render the sale agreement into an instrument of fraud, as Campbell JA observed in Franklins 76 NSWLR at 734 [554], that does not overcome the lack of certainty of what the “promise” entailed. Absent a sufficiently clear identification of what the Liemant parties’ “promise” required them to do, it is not possible to find what they cannot deny or what precise obligation that they assumed.

227    It is one thing to conclude, as I have, that Mr Liemant represented that he (and Lantrak Holdings) would pay $22 million subsequently if the Yammine parties entered into the agreement, and another to determine that the representation was or became contractual or sufficiently certain so as to give rise to an estoppel. As Mr Yammine said, after the 9 October conversation and 9 October note, he held back from giving the Liemant parties the benefit of any restraint of trade, because retention of his ability to compete in the future was his “security” for performance of Mr Liemant’s promise to pay the $22 million. Thus, the “security” comprised the scenario in which, if the Liemant parties did not, or could not, perform the “promise” to pay $22 million, Mr Yammine would be free to compete, as he explained to Mr Liemant, in the 9 October conversation (see [91]–[92], [113] and [120] above).

228    Promissory estoppel ordinarily is equitable in nature and can arise in respect of a representation as to future conduct: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 399 per Mason CJ and Wilson J, at 421, 428–429 per Brennan J, at 451 per Deane J and at 459 per Gaudron J. As Brennan J explained in Waltons 164 CLR at 422–423, for an equitable estoppel to arise, the party said to be estopped must represent that he or she is bound to act or refrain from acting in a particular way. Mere assumption or expectation that the party will be likely, but not bound, so to act is insufficient. Brennan J said (at 424):

A non-contractual promise can give rise to an equitable estoppel only when the promisor induces the promisee to assume or expect that the promise is intended to affect their legal relations and he knows or intends that the promisee will act or abstain from acting in reliance on the promise, and when the promisee does so act or abstain from acting and the promisee would suffer detriment by his action or inaction if the promisor were not to fulfil the promise. When these elements are present, equitable estoppel almost wears the appearance of contract, for the action or inaction of the promisee looks like consideration for the promise on which, as the promisor knew or intended, the promisee would act or abstain from acting.

(emphasis added)

229    Here, while Mr Liemant’s promise to “honour the deal” related to future conduct, in the circumstances known to both him and Mr Yammine, there was no sufficient precision about the terms on which how and by when he had to do so that, especially in the context of his then present professed financial inability to do so.

230    Nor is it possible to say what would be a reasonable time for performance of the promise to pay $22 million, in light of the unspecified (to Mr Yammine) difficulties the Liemant parties had in raising finance. There is no objective standard, to which the Yammine parties pointed, as to when the Liemant parties had to find the finance that they had not been able to obtain as at 9 October 2018. Accepting that the Liemant parties would have had to take reasonable efforts to continue their quest for finance, if all such efforts failed, it is difficult to understand how a reasonable person in the position of the parties would have been able to discern that the Liemant parties were representing that they were bound, contractually or otherwise, or would continue to be liable, to pay the $22 million or on what terms.

231    The Liemant parties also relied on what Handley AJA, with whom Giles JA and Sackville AJA agreed, said, in obiter dicta, in Saleh v Romanous (2010) 79 NSWLR 453 at 462 [74], to deny the potential of a promissory estoppel arising here, namely:

A promissory estoppel is a restraint on the enforcement of rights, and thus, unlike a proprietary estoppel, it must be negative in substance. In Hughes (1877) 2 App Cas 439, Lord Cairns LC in his classic statement of principle quoted by Lord Wilberforce in Bank Negara Indonesia said (at 448): “[T]he person who otherwise might have enforced those rights will not be allowed to enforce them where it would be inequitable having regard to the dealings which have thus taken place between the parties.”

232    It is not necessary for me to decide whether those obiter dicta are correct, although, at first blush, they are difficult to reconcile with the decision in Waltons 164 CLR.

233    For these reasons, I am not satisfied that the Yammine parties have established any estoppel as pleaded against the Liemant parties.

The late tendency evidence objection

234    In their closing written submissions, the Liemant parties sought to raise an objection based on s 97 of the Evidence Act 1995 (Cth) that the Yammine parties should not be allowed to rely on evidence of Mr Yammine’s earlier dealings with Gary and Mark Liemant and their companies as tendency evidence that Mr Liemant and Mr Yammine engaged in substantial business dealings without documentation. The Liemant parties said that the Yammine parties had not given notice that they intended to adduce such tendency evidence.

235    I reject that submission. At no time during the trial did the Liemant parties object to, or seek a limitation under s 136 on the use of, any of the evidence as to the prior conduct or dealings of Mr Liemant and or Mr Yammine. The evidence having been tendered and admitted is available to use for all purposes: see ss 57 and 60 of the Evidence Act; Guthrie v Spence (2009) 78 NSWLR 225 at 237–238 [75] per Campbell JA with whom Basten JA and Handley AJA agreed; JD Heydon, Cross on Evidence (LexisNexis, 13th ed, 2021) at [1520]; Stephen Odgers, Uniform Evidence Law (Lawbook Co, 17th ed, 2022) at 411–412 [60.60]. As Spigelman CJ observed in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at 287 [149], the words “not admissible”, when used in the Evidence Act, ordinarily mean “not admissible over objection”: see Cross on Evidence at [1645], [1650].

236    What the Liemant parties sought in their written submissions was the opposite of what occurred in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2013) 297 ALR 406. There, the primary judge admitted evidence subject to a limitation under s 136 of the Evidence Act but used the evidence in the reasons for judgment for a broader purpose than that in the limitation, namely to establish a tendency, contrary to s 97. French CJ, Crennan, Kiefel, Gageler, and Keane JJ refused special leave to appeal from the Full Court’s decision that the primary judge erred in using the limited evidence on a wider basis, namely as tendency evidence, than the limited basis on which it was admitted and governed its use (see at 412–415 [23]–[36]).

237    It was too late for the Liemant parties to object in final submissions, after the close of the evidence. Moreover, senior counsel for the Liemant parties made no reference to this issue in oral address.

238    In any event, the objection is meritless. First, there was no suggestion that the Liemant parties were taken by surprise by any of the evidence, including evidence that they had led in chief or elicited in cross-examination that might be relevant to any such tendency. Secondly, s 100(1) allows the Court, on application of a party, to direct that the tendency rule in s 97 is not to apply. Thirdly, the Liemant parties did not suggest that there was any prejudice to them in the use of the evidence as tendency evidence, especially since they were fully on notice that the Yammine parties intended to adduce it and did not object to its admissibility. Fourthly, as the Yammine parties submitted, the evidence was admissible as evidence of conduct, independently of its tendency to show that Mr Yammine and or Mr Liemant (or their respective associates) had a propensity to act in a particular way (e.g. to enter into substantial business transactions without documentation), namely as evidence of a system or practice of doing business in such a way, as Sackville J explained, with the agreement of Whitlam and Mansfield JJ, in Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 at 67 [66]–[67].

239    Any failure of the Yammine parties to give a notice under s 97 of the Evidence Act that they intended to rely on the evidence of how Mr Yammine and Mr Liemant dealt with one another in negotiating and entering into the “sale” in 2016 of RTS’ business to Lantrak NSW and the sequence of that dealing did not, and in light of the way in which the trial proceeded, could not, result in the evidence being admitted or used for a purpose that I would have limited or excluded under s 136 had I had to rule on such an unmade objection at the time of the tender of the evidence.

The misrepresentation issue

The Liemant parties’ submissions

240    The Liemant parties argued that Mr Yammine’s evidence fell well short of the degree of clarity and specificity necessary to establish a contravention of s 18(1) of the ACL. They contended that his evidence that Mr Liemant “promised” or assured him that “I’ll honour what I’ve signed”, “I will honour the deal” and similar statements were platitudinous, vague, general and contrary to the express terms of the sale agreement. The Liemant parties submitted that, even if Mr Liemant had made such statements, the Yammine parties had not propounded an intelligible basis to discern what “honouring” the expressly non-binding heads of agreement could entail. The Liemant parties asserted that the Yammine parties’ evidence of conversations that had occurred years earlier than the trial were not supported by contemporaneous documentary evidence. They referred to Watson 49 NSWLR at 318–319 in urging that the Yammine parties’ evidence lacked sufficient cogency to establish that Mr Liemant had made any representation, as alleged, that contravened s 18(1).

241    The Liemant parties argued that, even if Mr Liemant had made a misleading representation and Mr Yammine had relied on it, despite the written assurance in cl 11.7 of the sale agreement, the Yammine parties had not discharged their onus of proof or even articulated how they claimed to have suffered any loss or damage. The Liemant parties contended that the mere pleading of unspecified loss was impermissible and did not allow an inference that they “would have been willing to pay the Yammine Parties [a total of] $35,000,000 for their interest in the Lantrak NSW Business and such an agreement could have been struck and then implemented”. They submitted that the Yammine parties needed, but failed, to prove “some form of quantified loss, ordinarily by reference to a counterfactual to the conduct sought to be impugned”. They argued that Mr Yammine did not articulate what he would have done had Mr Liemant told him the truth, namely, that he regarded their deal as fully documented in the sale agreement and involving no future obligation to pay $22 million to Mr Yammine.

242    They contended that there was no expert evidence about value of any lost commercial opportunity or otherwise. They submitted that the discussions in the negotiation of the heads of agreement, based on a value for Lantrak NSW of five times an EBIT of $7 million, had no evidentiary support.

Consideration

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

244    Mr Liemant’s “promise” to “honour the deal” was a representation with respect to a future matter, within the meaning of s 4(1) and (2) of the ACL. A person who makes a representation as to a future matter must have reasonable grounds for making it. While s 4(2) provides that the person is deemed not to have had reasonable grounds for such a representation unless evidence is adduced to the contrary, the parties did not suggest that the case turned on whether Mr Liemant had reasonable grounds for what he said. Rather, the factual contest concerned whether he did or did not make the representation. There were no submissions that the deeming provisions in s 4 had any determinative role to play in the resolution of the evidentiary contest between the parties. There was a wealth of evidence to the contrary that I have discussed above. It is clear enough that if, as I have found, the representation was made, it was misleading and that, in relying on it, Mr Yammine was misled into acting to the detriment of the Yammine parties by entering into the sale agreement without any written or other contractual recognition that Mr Liemant would “honour the deal”.

245    I am not satisfied that the Yammine parties established any of their contractual claims as I have explained in these reasons. However, I am comfortably satisfied that Mr Liemant led Mr Yammine to believe that the Liemant parties would “honour the deal”; that is, make up the difference of $22 million later if Mr Yammine caused the Yammine parties to enter into the sale agreement, as he did based on that inducement.

246    As I have found, Mr Liemant’s representations, that he (viz. the Liemant parties) would “honour the deal” was promissory, not contractual, and did not create any estoppel. However, it induced Mr Yammine to believe that, despite whatever may have been the binding force of the sale agreement, he could trust Mr Liemant to make up, within the reasonably foreseeable future, the difference of $22 million between the non-binding, but apparently accepted, value of the Lantrak NSW group of $35 million and the $13 million payable under the sale agreement, once the Liemant parties could arrange their finances to do so.

247    I am satisfied that Mr Yammine and NJA acted to their detriment when Mr Yammine (on their behalf) caused the Yammine parties to enter into the sale agreement because he believed, and relied on, Mr Liemant’s “promise” that he would honour the deal, despite the effect of the entire agreement clause. Mr Yammine may have been under some financial pressure, as he explained in the 9 October conversation, however, there was no evidence that it was so extreme that he would have abandoned the non-binding result of the hard nosed bargaining in the negotiations of the heads of agreement, that had resulted in the, apparently joint, view that the Lantrak NSW group was worth $35 million, and settle on a sale price of about one third of that amount, without any substantive bargaining, simply because of what his trusted friend, Mr Liemant, said about being unable to raise the $35 million at that time.

248    Mr Yammine may have been ingenuous and lacking financial literacy, but he was not a fool, or generous beyond measure: he had a keen commercial sense, sufficient to identify and exploit the commercial opportunity that he realised, first, in RTS and, then, in developing its business in the Lantrak NSW group with the backing of Gary and Mark Liemant and the Lantrak group.

249    Mr Yammine entered into the sale agreement on the basis of a price of $13 million in reliance on Mr Liemant’s promissory representation that the Liemant parties would pay $22 million subsequently. In doing so, Mr Yammine significantly altered his and NJA’s position to his detriment because of his assumption of the contractual obligations in the sale agreement, including the entire agreement clause.

250    I reject the Liemant parties’ argument that the Yammine parties’ case required the proof of a particular loss. To the contrary, their pleaded claim in their originating application was for damages which included loss of a commercial opportunity to negotiate a different, more financially favourable, transaction than that in the sale agreement: Sellars v Adelaide Petroleum NL (1994) 179 CLR 332.

251    In Sellars 179 CLR at 348, Mason CJ, Dawson, Toohey and Gaudron JJ said that where there is a contravention of the analogue of s 18(1) of the ACL, “in the form of misleading conduct constituted by misrepresentations, acts done by the representee in reliance upon the misrepresentations amount to a sufficient connexion to satisfy the concept of causation”. And, they held, economic or financial loss that resulted from those misrepresentations, ordinarily, will be recoverable under the analogue of s 236(1) of the ACL. Their Honours held that the loss of an opportunity or chance of securing a commercial benefit of some value is a form of economic loss, even if there were less than a 50% chance of its realisation (at 348–349). They stated the applicable principle on which such a loss should be assessed as (at 355):

the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities. It is no answer to that way of viewing an applicant's case to say that the commercial opportunity was valueless on the balance of probabilities because to say that is to value the commercial opportunity by reference to a standard of proof which is inapplicable.

(original italic emphasis, bold emphasis added)

252    The Liemant parties contended that there was no evidence that Mr Yammine could have achieved a better price. However, that argument was confounded by Mr Peeke’s suggested price of $15 million (albeit payable by instalments and subject to conditions), as an opening offer that he put forward to Mr Liemant earlier on 9 October 2018 (see [87] above).

253    As I have explained above, the objective financial information in contemporaneous internal documents of Lantrak Holdings, the mutually known material in exhibit B and the financial records of Lantrak NSW as to August 2018 provided a reasonable basis for the value of $35 million (as five times Lantrak NSW’s EBIT) that the parties agreed in the heads of agreement, with the benefit of the advice of experienced financial advisors, such as Mr Jeraj.

254    The Liemant parties did not plead any lawful counterfactual which, but for Mr Liemant’s misleading representation, they or the Yammine parties would have pursued: cf Berry v CCL Secure Pty (2020) 271 CLR 151 at 167–168 [27], 170 [29], 171 [32] per Bell, Keane and Nettle JJ. Here, because of Mr Yammine’s reliance on Mr Liemant’s promise “to honour the deal”, the Liemant parties entered into the sale agreement at a total price for what they were selling that was far less than they understood and believed it was worth. That understanding and belief was reinforced by the expert advice as to value that Mr Jeraj and the other experts conveyed to both sides in the negotiations for the non-binding heads of agreement.

255    The Liemant parties confined their case to supporting the proposition that, as at 9 October 2018 (and thereabouts) they could not raise funds to pay a price of $35 million and that the latest financial results suggested that such a value was at that time more than would have been reached had those results been available for the negotiation of the heads of agreement. They did not plead that the price in the sale agreement reflected either the true value of what the Yammine parties sold or the maximum that they (the Liemant parties) were prepared to pay. As Bell, Keane and Nettle JJ said in Berry 271 CLR at 170 [29] and 171 [32]:

… if a claimant seeks “expectation damages” for the loss of a chance that, had an agreement run to term, it may have been renewed or extended, the onus is on the claimant to establish those facts, although, even then, since the existence and degree of such an hypothetical possibility is, by reason of the wrongful termination of the contract, incapable of proof on the balance of probabilities, it is considered just that the wrongdoer should suffer the resulting uncertainty to the extent that proof to the level of a real (more than negligible) possibility is regarded as enough. The worth of the chance is then valued by a process of informed estimation.

…

By parity of reasoning with Malec [v JC Hutton Pty Ltd] ((1990) 169 CLR 638 at 639-640 per Brennan and Dawson JJ; at 642-643 per Deane, Gaudron and McHugh JJ. See also Badenach v Calvert (2016) 257 CLR 440 at 454 [39]-[40] per French CJ, Kiefel and Keane JJ) and [Commonwealth v] Amann Aviation [Pty Ltd] ((1991) 174 CLR 64 at 92 per Mason CJ and Dawson J; at 102-104 per Brennan J; at 118-119 per Deane J), in Sellars ((1994) 179 CLR 332 at 355 per Mason CJ, Dawson, Toohey and Gaudron JJ; at 368 per Brennan J) it was held that, where a claimant established on the balance of probabilities that misleading or deceptive conduct contrary to s 52 of the TPA caused the claimant the loss of a commercial opportunity of some value (not being a negligible value), the value of that lost opportunity was to be ascertained by reference to hypotheses and possibilities which, though they were speculative and therefore not capable of proof on the balance of probabilities, could be evaluated as a matter of informed estimation.

(emphasis added)

256    Importantly, the Liemant parties’ case was that they could not raise the finance as at early October 2018 to pay the price of $35 million and that the latest financial results suggested a slightly lower EBIT and correspondingly lower value. The Liemant parties did not plead or suggest that they would not have gone ahead with negotiating a price greater than in the sale agreement had Mr Yammine suggested a higher price than $10 million “clear” in the 9 October conversation. Mr Liemant did not look Mr Yammine’s gift horse in the mouth, based as it was on his promise to “honour the deal”.

257    I have accepted Mr Peeke’s evidence that, by 9 October 2018, he had formed the view, after approaching potential financiers and others, that “we couldn’t raise finance to do the deal as it was represented in the heads of agreement” (see [214] above). Mr Peeke said, without challenge in cross-examination, that none of the financiers that he and Mr Liemant approached before 9 October 2018 was “interested in funding the New South Wales deal” and that he was concerned that “[w]e had a business that didn’t appear to be on track to achieve the [$7 million] EBIT margin”. Nonetheless, Mr Liemant accepted that a management accounts consolidated Lantrak group balance sheet as at 31 March 2018 disclosed that the group had total current assets of about $70.625 million and net assets, with a corresponding total equity (after deducting liabilities), of about $41.86 million. It had total current labilities of about $42.85 million, including about $19 million due under its Westpac debtors finance facility, that the group used to ensure smoother cashflow. Mr Liemant accepted that in the previous 2016-17 financial year, the Lantrak group generated a net profit before tax of $21.8 million and that, during the period in 2018 in which the 9 October conversation occurred, it was a substantial and profitable business. Yet, he told Mr Yammine in the 9 October conversation that the Lantrak group could not afford to pay him $35 million. He denied that it was untrue to tell Mr Yammine that.

258    Thus, as at 9 October 2018, the Lantrak group was a substantial, successful business. While it may not have been able at that time to attract funding to pay $35 million for the Lantrak NSW group, including because the latest EBIT projections were closer to $6 million than $7 million, that does not entail that it could not have paid or funded a significantly greater price than $13 million.

259    Moreover, the EBIT in the management accounts for Lantrak NSW in Mr Peeke’s estimate that he emailed to Mr Liemant and Ms Sumanada on 2 October 2018 was still broadly in line with their performance as indicated in exhibit B, being the version which the parties and their professional advisors used in negotiating the heads of agreement (see [49], [80]). The EBIT in the 2 October 2018 estimate (which it appears Mr Yammine did not then have) (see [82] above) was about $5 million. That would result in a value of $25 million, using the methodology of five times EBIT both sides adopted in negotiating the heads of agreement. That estimate did not include any growth projection for the rest of the financial year. And, as late as 4 October 2018, Mr Jeraj of PwC affirmed to Mr Touma that “[o]ur valuation [of $35 million] is based on the business making circa $7m this year and the run rate to August indicates a level of risk on the earnings” (see [84] above).

260    Had Mr Yammine not trusted Mr Liemant and kept negotiations for an immediate, but perhaps lesser, price on foot, I am satisfied that there is a real possibility that both men would have arrived at a price substantially in excess of the $13 million in the sale agreement. The Lantrak group had significant financial capacity, even if not enough at that time to enable it immediately to pay $35 million. It follows that the Yammine parties are entitled to compensation under s 236(1) of the ACL for the loss of that chance.

261    It is not necessary for a representee to identify a precise counterfactual price in order to recover compensation under s 236(1) of the ACL for a contravention of the statutory norm of conduct mandated in s 18(1). There was no expert opinion evidence led in the trial of the value of the Lantrak NSW group or the total consideration passing from the Yammine parties to the Liemant parties (and their associates) in the sale agreement. However, there was evidence of the integers and methodology that the parties used to arrive at the non-binding value of $35 million in the negotiation of the heads of agreement and that formed the foundation of Mr Liemant’s “promise” to “honour the deal”.

262    In HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 at 661–662 [47], Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ stated the following principle:

The defendant argued that it was not possible to demonstrate a sufficient loss as at the acquisition date in 1997 to render the trial judge's assessment correct. It pointed to a lack of specific evidence on the subject. However, while it is true that there was no direct evidence placing the “true value” in the vicinity of $130,000 on 28 April 1997, there does not have to be. Barwick CJ said that, provided there was some evidence of damage, in the field of assessing damages for fraud, “as in other fields, a tribunal of fact must do the best it can in assessing damages” (Ted Brown Quarries Pty Ltd v General Quarries (Gilston) Pty Ltd (1977) 16 ALR 23 at 26) . Fry J found no difficulty in assessing the difference between the price paid and “value” in the sense of “real value” or “a fair price to pay … in the real circumstances at the time” of purchase, even though there was no direct evidence on the point (Arkwright v Newbold (1881) 17 Ch D 301 at 312).

(emphasis added)

263    Their Honours also held (at 666 [62]) that the wide language of the analogue of s 236(1) of the ACL “is compatible with a legislative desire to broaden the scope of recovery, not to keep it within the bounds of some comparison with the common law (Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 at 407 [44])”.

264    By relying on Mr Liemant’s misleading “promise” that he would “honour the deal”, Mr Yammine (and NJA) lost the commercial opportunity or chance that he may have been able to hold Mr Liemant to the original price of $35 million or struck a greater price than the $13 million. That commercial opportunity or chance had a value that is insusceptible of precise calculation. The time for valuing that loss was 12 November 2018, being when the Yammine parties entered into the sale agreement in reliance on Mr Liemant’s promise. That is when their economic interests suffered damage: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 532–533 per Mason CJ, Dawson, Gaudron and McHugh JJ.

265    Of course, Mr Yammine retained his ability to compete, being his “security”, for the honouring of Mr Liemant’s “promise”. However, in the circumstances, there is no reason to discount the compensation to which the Yammine parties are entitled in respect of this. First, no party made a submission that such a discount ought to be made. Secondly, the statutory remedy is directed to compensating the Yammine parties for the loss of a chance to achieve a better price because of the Liemant parties’ contravention of the norm of conduct in s 18(1) of the ACL. Ordinarily, it is not necessary to break up the value of such a loss by reference to other causative or like elements. The issue is whether the Liemant parties’ contravention of s 18(1) of the ACL was a cause of the Yammine parties’ loss of the opportunity to negotiate a different, more financially favourable, transaction than that in the sale agreement: I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109 at 121–122 [33] per Gleeson CJ, 128–130 [57]–[58], [60]–[62] per Gaudron, Gummow and Hayne JJ, 135–138 [84]–[93] per McHugh J, 175–176 [210]–[211] per Callinan J.

266    Mr Liemant wanted the Lantrak group to have full control of the Lantrak NSW group, and the benefits of its significant revenues and earning capacity. He achieved that for the Liemant parties by contravening s 18(1) of the ACL.

267    Doing the best I can, I consider that the Yammine parties had a 50% chance of negotiating a price of $25 million to $30 million in lieu of the $13 million in the sale agreement. The average of $27.5 million produces a price $14.5 million greater than $13 million, 50% of which equates to $7.25 million. I am satisfied that this is an appropriate amount of compensation.

268    Accordingly, I find that the Yammine parties are entitled to an award of $7.25 million as compensation under s 236(1) of the ACL, with interest from 12 November 2018. Interest on that sum at the prejudgment interest rates is approximately $1,480,000. In my opinion, it is appropriate to enter judgment for $8,730,000 inclusive of prejudgment interest.

The non-compete contractual issue

The parties’ submissions

269    The Yammine parties argued that, as an alternative to their claim for $22 million, Mr Yammine and Mr Liemant agreed on 11 October 2019 in the Docklands meeting, that the Liemant parties would pay Mr Yammine $10 million in consideration of him agreeing that neither he nor any entity in which he was interested would compete with the business of the Lantrak NSW group for 10 years and that, subsequently, this agreement would be formally documented. The Yammine parties contended that this “agreement” fell within what McLelland J described in Baulkham Hills Private Hospital Pty Ltd v G R Securities Pty Ltd (1986) 40 NSWLR 622 at 628 as the fourth class in Masters v Cameron (1954) 91 CLR 353.

270    They submitted that when Mr Peeke sent his first draft to Mr Touma on 23 October 2019 he expressed the nature of the attachment as “draft thoughts on the agreement with Norm” (emphasis added) in the sense of acknowledging that an oral agreement already existed and the draft wording was how he proposed it be documented. They asserted that, so far as that document went beyond the existing oral agreement, it reflected no more than a proposal to add further or varied terms if Mr Yammine agreed. The Yammine parties argued that Mr Pinto’s and Mr Maroun’s evidence corroborated that Mr Yammine and Mr Liemant had made a non-compete agreement orally. They referred to, first, Mr Pinto’s evidence that he overheard Mr Liemant say that he was working through some transactions with big companies in Queensland “to raise the $10 million that he was going to pay Norm” (see [166] above), and, secondly, Mr Maroun’s evidence that, in March 2020, he had asked Mr Liemant about whether the $10 million owing to Mr Yammine would be paid at the end of the month, to which Mr Liemant replied that he was working on it (see [195]).

271    In addition, the Yammine parties relied on Mr Morris’ evidence that, when they met in December 2019, Mr Liemant had said that he wanted to raise $10 million in debt to pay Mr Yammine (see [174] above).

Consideration

272    I reject the Yammine parties’ argument that, at the Docklands meeting, Mr Yammine and Mr Liemant entered into a binding contract for the payment of $10 million in consideration of Mr Yammine, and entities in which he was interested, promising not to compete with the Lantrak NSW group’s business and giving up any claim to the $22 million.

273    While I have found that Mr Yammine and Mr Liemant discussed the broad commercial outlines of such an arrangement, I am not satisfied that the Yammine parties have established that the discussion resulted in a sufficiently certain consensus so as to create an enforceable contract.

274    First, as the subsequent events showed, Mr Liemant did not have, or was unwilling to commit, the funds to make a payment of $10 million immediately or in the ensuing months so, given his past conduct, it is unlikely that he committed to do so regardless. Secondly, Mr Yammine did not have Mr Touma respond to Mr Peeke’s emails of 23 and 24 October 2019 or draw up a proposed documentary version of what he said was the deal. Thirdly, Mr Yammine’s and Mr Liemant’s conduct after 11 October 2019 was consistent with both men believing that Mr Liemant needed to find a source of the funds to pay Mr Yammine and, if and when he did so, then there would need to be documentation prepared to reflect the arrangement they had discussed, in light of the availability of the money to fund the payment. Fourthly, the non-compete provision of any contract would be likely to need the input of lawyers as to the precise ambit of what the restraint would consist (e.g. the usual scenarios in such contracts as to area, scope of businesses, persons and entities to be bound and the cascading areas and durations if the initially wide ones were struck down by a court as an unlawful restraint of trade). While a draft of such a contract appeared in the draft sale agreement documents prepared before 9 October 2018, the terms were still not agreed. Fifthly, as time dragged on, Mr Yammine did not complain that Mr Liemant was in breach. While I accept that Mr Yammine still had a degree of faith and trust in Mr Liemant, by then he knew that Mr Liemant was not as reliable in their dealings as he had believed and had formed the view that Mr Liemant had lied to him in the 9 October conversation and thereafter. Yet, after the Docklands meeting, Mr Yammine sought to assist Mr Liemant to raise money through the introduction of Mr Morris and Mr Maroun. Sixthly, one element of Mr Yammine’s account of their conversation on 11 October 2019 was that “I was going to get him some work … to keep the relationship together open” ([153] above), which appeared to be part of the discussion, but the details of which he left hanging fire.

275    In the end, while I infer that Mr Liemant was content to string Mr Yammine along, once again, in the belief or expectation that they had agreed on a “deal”, the evidence did not bear out a conclusion that, in fact, they had made a certain, concluded contract.

Conclusion

276    For these reasons, I am not satisfied that the Yammine parties proved clear contractual terms for payment of either $22 million or $10 million or that the Liemant parties were estopped from denying that there was a contract for the payment of the $22 million. However, I am satisfied that the Liemant parties engaged in conduct, in trade or commerce, that misled the Yammine parties in contravention of s 18(1) of the ACL causing the Yammine parties to lose a commercial opportunity to negotiate a better payment than the $13 million provided in the sale agreement.

277    Accordingly, I will order the Liemant parties to pay the Yammine parties $7.25 million as compensation for the contravention of s 18(1) under s 236(1) of the ACL together with interest from 12 November 2018, which makes a total judgment sum of $8,730,000.

278    On the basis of my findings above, I see no reason why the Yammine parties should not have an order for costs, but I will postpone the entry of such an order in case there is a matter, not now evident, that requires further consideration.

Associate:

Dated:    3 March 2023