Actwane Pty Ltd (Receiver and Manager Appointed) (In Liquidation) and William James Moss v Hotel Redfern Pty Ltd, Actwane Holdings Pty Ltd and Stephen Michael Larkin

[2002] NSWSC 265

CITATION:	Actwane Pty Ltd (Receiver and Manager Appointed) (In Liquidation) and William James Moss v Hotel Redfern Pty Ltd, Actwane Holdings Pty Ltd and Stephen Michael Larkin [2002] NSWSC 265
CURRENT JURISDICTION:	Equity Division Commercial List
FILE NUMBER(S):	SC 50116/01
HEARING DATE(S):	25 and 26 March 2002
JUDGMENT DATE:	8 April 2002
PARTIES :	Actwane Pty Ltd (Receiver and Manager Appointed) (In Liquidation) (First Plaintiff) William James Moss (Second Plaintiff) Hotel Redfern Pty Ltd (First Defendant) Actwane Holdings Pty Ltd (Second Defendant) Stephen Michael Larkin (Third Defendant)
JUDGMENT OF:	Bergin J

COUNSEL :	B Coles QC leading P Newton and R Pepper S Robb QC leading N Kidd
SOLICITORS:	Blake Dawson Waldron (Plaintiffs) Eakin McCaffery Cox (Defendants)
CATCHWORDS:	Application for rectification of the register of members of the first defendant.
LEGISLATION CITED:	Corporations Act 2001 Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth)
CASES CITED:	Grant v John Grant & Sons Pty Limited (1950) 82 CLR 1
DECISION:	Rectification ordered

- 25 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
commercial LIST

BERGIN J

8 APRIL 2002

50116/01 Actwane Pty Ltd (Receiver and Manager Appointed) (In Liquidation) and William James Moss v Hotel Redfern Pty Ltd, Actwane Holdings Pty Ltd and Stephen Michael Larkin

JUDGMENT

1 The plaintiffs seek an order pursuant to s 175 of the Corporations Act 2001 that the register of members of the first defendant, Hotel Redfern Pty Ltd (Hotel Redfern) be rectified to record the first plaintiff, Actwane Pty Ltd (Actwane), as the holder of two shares in Hotel Redfern currently registered in the name of the second defendant, Actwane Holdings Pty Ltd (Holdings).

2 Actwane is in receivership. It has two directors, Colin Graham, the second plaintiff’s nephew and the third defendant, Stephen Michael Larkin (Dr Larkin). It has two shares held equally by TPC Nominees Pty Ltd, a company associated with the second plaintiff, William James Moss (Mr Moss) and Wentworth Advisors Pty Ltd, a company associated with Dr Larkin.

3 Mr Moss is an Executive Director of Macquarie Bank Ltd in charge of Banking and Property. He has known Dr Larkin for over ten years and he and Dr Larkin were involved in a successful property investment some years ago. They apparently enjoyed an amicable social relationship and were on good terms until April or May 2001.

4 In about early 1998 Dr Larkin suggested to Mr Moss that they form a joint venture for the purpose of purchasing, developing and operating hotels. The understanding between Dr Larkin and Mr Moss was that Dr Larkin would do all things necessary to obtain hotel licenses, arrange for properties to be purchased and developed, and for hotel business to be put into operation. Each would provide guarantees for the funding for the purchases, however it is clear that the risk, depending upon the extent of the debt, was greater for Mr Moss who was able to provide far greater assets as security than those provided by Dr Larkin.

5 In about March 1998 Dr Larkin’s accountant, Mr Bruce Coombes, of the accounting firm Macquarie Partners (Australia) Pty Ltd, acquired Actwane to be used as the principal vehicle for the joint venture investments.

6 In early March 1998 Mr Moss opened a cheque account in the name of Actwane with Macquarie Bank and in May 1998 he arranged a $400,000 facility with Macquarie Bank. Dr Larkin, Mr Moss and his wife provided personal guarantees in respect of those borrowings that were deposited into Actwane’s Macquarie Bank account in order to provide the capital to purchase hotel licences.

7 During 1998 Dr Larkin acquired three country hotel licences in Actwane’s name from hotels at Coreen, Tooma and Wilcannia. During 1999 Actwane acquired an option to purchase two properties, one at Carramar and one at Canley Heights. The licence from the Wilcannia hotel was sold and the two other hotel licences from Coreen and Tooma were successfully transferred to the properties at Carramar and Canley Heights. The options to purchase the Canley Heights and Carramar properties were exercised during 1999.

8 In about August 1999 Dr Larkin informed Mr Moss that the venture had spent well in excess of what was originally budgeted and that a further $1 million would be needed to have the further sites approved. As a result of this conversation Mr Moss arranged for the credit facility with Macquarie Bank to be increased to $1.05 million.

9 In about December 1999 Dr Larkin informed Mr Moss that even further funds were needed. Mr Moss suggested that an approach be made to St George Bank and on about 14 December 1999 Mr Moss arranged to borrow approximately $430,000 from St George Bank to be allocated as to $200,000 for working capital and as to $230,000 to finalize the purchase of the Carramar property.

10 In May 2000, by which time the Macquarie Bank facility had increased to approximately $1.137 million, Mr Moss advised Dr Larkin that they needed to sort out the debt and that they needed one bank. He asked Dr Larkin how much money was needed to complete the projects and Dr Larkin advised that the venture needed a facility of $3.1 million. Mr Moss then approached the St George Bank in order to obtain sufficient funds to pay out the facility provided by Macquarie Bank and to re-finance the joint venture with St George Bank.

11 On about 24 May 2000 Mr Moss obtained approval for facilities totalling $2.945 million from the St George Bank which required various forms of security. A joint and several guarantee and indemnity signed by Dr Larkin, Mrs Moss, Austcorp No. 214 Pty Ltd as trustee for the Moss family trust and Mr Moss was provided and Mr Moss provided shares which he held in Macquarie Bank, then valued at approximately $3.4 million. St George Bank also obtained a first ranking charge over the assets and undertakings of Actwane as security for the facilities.

12 In June 2000 Dr Larkin informed Mr Moss that there had been a further escalation in costs and that the joint venture needed more money. Mr Moss was of the view that the only way to obtain additional funds was to retain the Macquarie Bank facility rather than use the moneys borrowed from St George to pay it out. That is what was done.

13 Mr and Mrs Moss separated in May 2000 at which time Mrs Moss transferred her interest in Actwane to Mr Moss in consideration of him taking responsibility for Actwane’s debt.

14 On 23 June 2000 Actwane Hotel Management Pty Ltd (AHM) was established to operate Actwane’s planned hotel at Canley Heights. The directors of AHM were Colin Graham and Dr Larkin. The two shares in AHM were issued to Macquarie Advisors (Australia) Pty Ltd (later known as Wentworth Advisors Pty Ltd), a company associated with Dr Larkin, and Wybalena Securities Pty Ltd, a company associated with Mr Moss. In about June 2000 Phillip Brooks was appointed manager of the Canley Heights Hotel which commenced operation in August 2000.

15 On 5 September 2000 Dr Larkin met with Mr Moss at his office at Macquarie Bank. Also present at the meeting were Mr Coombes and a solicitor, Mr Swaab. The purpose of the meeting was to discuss a then contemplated further investment in an hotel at Petersham, known as the Petersham Inn, and to discuss general forward planning for the joint venture. Although Mr Moss in his affidavit suggested that Mr Coombes had drawn a corporate structure on a whiteboard, it is clear that Mr Moss drew at least one corporate structure on a whiteboard during discussions at this meeting. A drawing was printed out from the whiteboard and a copy was provided to Mr Coombes (Ex 1). The diagram is difficult to read. On the left hand side of the page there are some figures and writing that have been partially obliterated. The diagram depicted Holdings at the top of the structure owned equally by Mr Moss and Dr Larkin with “JAM, Actwane, Petersham M/Co and A.H.M” referred to on the line immediately underneath Holdings.

16 On Mr Coombes’ copy of the print out from the whiteboard he wrote, “Set up Actwane Holdings P/L, Actwane Hotel M/Ment”. Other notes made by Mr Coombes on the day at the meeting include references to ”Actwane Hotel M/Ment, Cavacrest, Actwane Holdings P/L, Actwane Holdings P/L, Actwane Hotel M/Ment Petersham P/L, JAM Pty Ltd and Petersham Equity P/L”. He also made a note “Rollover of Actwane and AHM P/L to A Hldgs”.

17 In his affidavit evidence Mr Moss said that at the meeting Mr Coombes said words to following effect:

The way we need to structure these investments is to incorporate a holding company called Actwane Holdings Pty Ltd. This company will not trade but will own the freehold real estate of each hotel. The business component will be owned by a separate company in each case.

This way if you sell a hotel, you can sell the company that owns the business and the freehold separately. This gives you the flexibility to sell a leasehold interest and keep the freehold interest. You should keep Actwane Hotel Management Pty Ltd which should be used for future third party management opportunities.

18 In his affidavit Dr Larkin claimed that Mr Coombes said words to this effect:

You guys need to introduce a new holding company, say, Actwane Holdings Pty Ltd, not to trade but to own your interests in the properties where the hotels trade. The business exponent will be owned by a separate company in each case. That way if you sell a hotel, you can sell the business and the freehold separately. For example, you could sell a leasehold interest and keep the freehold. Each company should stand alone with its own assets in case something goes wrong with a particular project.

19 Dr Larkin claimed that he said, “We wouldn’t want the debt burden of Actwane Pty Ltd to impact on our other operations”. Mr Moss claimed that he said:

That sounds like a good idea in theory, however, we have already made a number of investments through Actwane Pty Ltd and have made borrowings to support those investments. We do not want to change the ownership of these assets. I am happy for Actwane Pty Ltd to continue to own the assets and Actwane Hotel Management to manage the existing hotel operations and any other hotels in which we invest in the future.

20 On 7 September 2000 Mr Coombes sent a facsimile letter to Dr Larkin in the following terms:

Further to our meeting on Tuesday, I confirm that we will be attending to the establishment of the following companies on your behalf:

Actwane Holdings Pty Limited
Directors
Stephen Larkin
Colin Graham

Shareholders
Larkin Family Trust
Moss Family Trust

Actwane Hotel Management (Petersham) Pty Limited
Directors
Stephen Larkin

Shareholder
Actwane Holdings Pty Ltd
JAM (Petersham) Pty Limited
Directors
Stephen Larkin
Norman Jennings

Shareholders
Actwane Holdings Pty Ltd

Cavacrest Pty Ltd

Petersham Equity Pty Limited
Directors
Stephen Larkin
Colin Graham

Shareholder
Actwane Holdings Pty Ltd
Would you please advise me of the date of birth, place of birth, and residential address of Norm Jennings together with the ACN and registered office address of Cavacrest Pty Ltd? If any of the above is incorrect, please let Karen Marlow or myself know.

21 On the same day, 7 September 2000, Dr Larkin sent a copy of the fax back to Mr Coombes with a hand written note on the front page: “Bruce, For your comments please”. On the second page Dr Larkin corrected the word “Cavacrest” to read “Cavacress” and next to the entry of the shareholder in Petersham Equity Pty Ltd wrote “Bruce, shouldn’t the shareholding be in the names of W J Moss and S M Larkin?”

22 On 12 September 2000, and inconsistently with what is contained in Mr Coombes’ letter, Actwane, rather than Holdings, was registered as the holder of one ordinary share in JAM (Petersham) Pty Ltd (JAM) with Cavacress Pty Ltd registered as the holder of one ordinary share. Although Dr Larkin was unsure, it seems that JAM was acquired for the purposes of managing the Petersham Inn or alternatively as the joint venture vehicle for the Petersham Inn project.

23 Mr Moss claimed in his affidavit that in September 2000 Dr Larkin informed him that JAM had two shares and that one was held by Actwane and the other was held by Cavacress Pty Ltd, a family company of the Petersham Inn freehold owner, Norm Jennings. Although Mr Moss was cross-examined it was not suggested to him that such a conversation did not occur. Dr Larkin admitted in his cross-examination that he had informed Mr Moss in September 2000 that JAM had been incorporated and that it had two shares but he could not recall discussing the detail of the shareholding with Mr Moss at that time (tr. 36-37).

24 The plan for the management contract at the Petersham Inn never eventuated. There is nothing in the evidence as to why that plan did not go ahead nor is there any evidence of the date upon which the plan was abandoned.

25 In December 2000 Dr Larkin and Mr Moss had a conversation about a hotel at Redfern known as the “Sky Bar Hotel.” In his affidavit Mr Moss stated that Dr Larkin informed him that he had found a leasehold interest in a hotel in Redfern that he thought was undervalued. Mr Moss claimed the following conversation took place:

Dr Larkin: The trading hours could be extended and additional poker machines brought in. This would generate a reasonable cash flow. Actwane should buy it, it will return around $20,000 per week. I’ve got another investor, Frank Oliveri who will take 1/3 share in the purchase of the lease.
Mr Moss: It sounds like a good idea. It will provide cash flow. The deal will have to be a partnership with Actwane owning two thirds of the business and the other investor owning one third.

26 In his affidavit Dr Larkin denied that he suggested that Actwane should buy the Hotel Redfern lease or that Actwane should own two thirds of the business with the other investor owning one third. He claimed he said “we should buy the lease”. He also claimed that the details as to which entity would buy the Hotel Redfern lease were not discussed initially. He said at this time he was attempting to negotiate the acquisition of the lease and he was not then focused on which entity would purchase it.

27 The plaintiffs read Mr Brooks’ affidavit of 4 September 2000. He was not cross-examined. His evidence was that in December 2000 Dr Larkin asked him to have a look at some financial information in a due diligence process and prepare some reports as to the viability of the Sky Bar Hotel. Mr Brooks stated that Dr Larkin said “if we buy this hotel it will be a partnership arrangement between Actwane and Frank Oliveri” and that he, Mr Brooks, would be managing the hotel.

28 Mr Moss said that in early 2001 he had a further discussion with Dr Larkin in which the following was said:

Dr Larkin: We should use JAM (Petersham) as the vehicle for making the investment.
Mr Moss: That company is not the appropriate vehicle for such an investment. I do not want to use the Petersham shelf company. We should use a new company which is two thirds owned by Actwane and one third owned by an entity associated with the other partner, Frank Oliveri.
Dr Larkin: Ok, I agree.

29 In his affidavit Dr Larkin denied this conversation. He said that he had recently located a copy of a diagram Mr Moss drew at this meeting in which the word “P.Equity” appeared. That diagram, which is annexure “A” to Dr Larkin’s affidavit of 14 March 2002, indicates that Actwane was to borrow from St George and lend the borrowings to “P.Equity”. It also indicates that Actwane was to have two shares. Further arrows on the diagram indicate that Mr Oliveri was to borrow moneys and lend them to “P.Equity” and to obtain one share.

30 On 24 January 2001 Dr Larkin wrote to the Director of Raine & Horne in Clarence Street, Sydney on Actwane’s letterhead. That letter was in the following terms:

Re: Sky Bar Hotel, Redfern- Landlord’s consent to option to purchase.
We wish to advise that the company acquiring the lease of the above property, will be Petersham Equity Pty Ltd c/o Macquarie Partners (Aust) Pty Ltd, 15 Terminus Street Castle Hill NSW 2154 the company ACN 094 447 524.
This company is controlled by Actwane Pty Ltd ACN 081 386 352 which is owned in equal shares by myself and Mr W J Moss.
Mr Moss is the Director for Banking and Property. Macquarie Bank Ltd. No.1 Martin Place Sydney.
Between Mr Moss and myself we have owned 12 hotels over the past 20 years and Actwane Pty Ltd currently owns and operates the Canley Heights Hotel at Canley Heights.
Our bankers are Macquarie Bank Ltd and St George Bank 4 Bligh Street Sydney (contact Paul Cook) phone [phone].
We wish to meet the landlord as soon as possible in order to negotiate and Option to Purchase the building along similar line to that which exists with the current lease.

31 The statement by Dr Larkin that Petersham Equity Pty Ltd was controlled by Actwane was, I conclude, a statement of his understanding at that time. This was the company that Dr Larkin had questioned Mr Coombes about in his 7 September 2000 return fax. Dr Larkin had suggested that the shareholders should be himself and Mr Moss in equal shares rather than Holdings as suggested by Mr Coombes. There is no evidence of any discussion between Mr Coombes and Dr Larkin on this topic after the 7 September fax. The ASIC search (Ann. ”B” to Dr Larkin’s affidavit of 14/03/02) lists Holdings as the sole shareholder.

32 Dr Larkin wrote another letter to the Director of Raine & Horne on Actwane’s letterhead on 24 January 2001. This letter referred to a meeting that morning with Raine & Horne and stated that it “serves to confirm that we are prepared to enter into an Agreement for Sale of Business of the lease” of the Sky Bar Hotel at Redfern from Wilsinkey Enterprises Pty Limited. Dr Larkin enclosed a cheque for $5,000 as a sign of good faith and requested Raine & Horne to hold the funds in the trust account.

33 On 31 January 2001 Dr Larkin wrote a further letter to Raine & Horne on Actwane’s letterhead requesting them to arrange a letter of authority from the current licensee of the Sky Bar Hotel to Actwane, or its nominee, to examine poker machine and other appropriate records of the Liquor Administration Board.

34 On 16 February 2001 Dr Larkin prepared a statement of assets and liabilities for Actwane. He valued the assets at $9.3 and the liabilities at $3.75. Those liabilities were referred to as the mortgages to St George Bank and Macquarie Bank Limited.

35 On 20 February 2001 Dr Larkin signed the Agreement for Sale of Business. The purchaser was identified as Actwane Hotel Management (Petersham) Pty Limited and not, as had been suggested in Dr Larkin’s 24 January letter, Petersham Equity Pty Ltd.

36 On 5 March 2001 Dr Larkin wrote to Mr Coombes on Actwane’s letterhead in the following terms:

Re: ASIC Changes
We wish to effect the following changes to our shelf company JAM (Petersham) Pty Limited ACN 094-447-499.
(a) Name change to Hotel Redfern Pty Limited
(b) Directors to be Stephen Michael Larkin and Joycelyn Frances Gabriel.
(c) Shareholders to be Actwane Pty Ltd ACN 081-386-352 Blacktown Equity Pty Limited ACN ?

Could you kindly advise what the ASIC fees are in relation to these changes and we will forward you the appropriate cheques.

37 Hotel Redfern took possession of the Sky Bar Hotel on 14 March 2001 and settlement of the purchase occurred around 6 April 2001. The Deed of Covenant and Consent to Assignment of Lease and Guarantee was originally drafted in JAM’s name, as transferee. At settlement that was changed to Hotel Redfern Pty Ltd. Mr Brooks managed the Sky Bar Hotel for a period of 6 weeks after 15 March and set up the operations of the Hotel, employed the necessary staff and arranged for certain building alterations in the gaming room and the bar.

38 Towards the end of March 2001 Mr Oliveri, Dr Larkin and Mr Moss met at the Sky Bar Hotel. Mr Oliveri showed Mr Moss the cash book relating to the operations of the hotel. Mr Moss’ evidence was that “on a quick glance the cash book appeared to be in order”. Mr Moss suggested that they should meet again in late April 2001 so that a decision could be made as to how the hotel was going and a determination could be made as to what to do with any surplus.

39 During the latter part of 2000 and early 2001 Mr Moss said he became concerned about the cash flow for the Canley Heights Hotel. He arranged a meeting with Dr Larkin on 28 March 2001 and asked him to bring the cash books to the meeting. Mr Moss said in his affidavit that at the meeting he asked Dr Larkin for the cash books and was informed that Dr Larkin’s secretary, Barbara, was “still finalising them” and that Dr Larkin would get them to Mr Moss “shortly”. Mr Moss then asked “what about the cash flow? Both our accounts are overdrawn”, to which Dr Larkin responded “there is enough money coming out of Canley Heights and Redfern together to put the loan accounts from Macquarie and St George in order by the end of April”. Mr Moss’ evidence was that he and Dr Larkin agreed that they would meet again shortly when Dr Larkin would give him the cash books.

40 During April 2001 Mr Moss asked Dr Larkin for a shareholders agreement between Actwane and Mr Oliveri and a loan agreement between Actwane and Mr Oliveri. Actwane had loaned monies to Mr Oliveri to complete the purchase. Mr Moss claimed that Dr Larkin had promised Mr Moss that he would provide a shareholders agreement and the loan agreement to him, but they were never provided.

41 On 28 May 2001 Mr Moss was served with a Notice of Demand by St George Bank addressed to Actwane for the amount of $3.848 million. On 30 May 2001 Mr Moss was served with a Notice of Demand under his guarantee to Macquarie Bank for the amount of $1.145 million. In June or July 2001 Mr Moss paid Actwane’s St George Bank debt of approximately $3.8 million as guarantor of that debt. Pursuant to a Deed of Assignment of Securities (in subrogation) dated 29 June 2001 Mr Moss took an assignment of St George Bank’s first registered charge, and other securities held by the Bank. There is nothing in the evidence as to what caused the St George Bank to demand repayment and I do not know what happened between the parties after May 2001 other than the commencement of these proceedings.

42 By resolution dated 29 June 2001 the Directors of Actwane appointed Kevin Sherlaw, Chartered Accountant, of the firm Horwarth as voluntary administrator of Actwane. Actwane proceeded into liquidation by resolution of its creditors dated 26 July 2001. Pursuant to Mr Moss’ right under the St George Banks Limited securities he appointed receivers to Actwane on 1 August 2001.

43 Mr Moss’ evidence was that he could not recall precisely when he discovered that the two shares in Hotel Redfern had been issued to Holdings. He said that to the best of his recollection it was about the time that the relationship between himself and Dr Larkin broke down. Although it is far from clear, it appears from the evidence that the breakdown in the relationship occurred in April or May 2001.

The Pleadings

44 The Summons was filed on 16 August 2001. The plaintiffs sought a range of relief including a declaration that Holdings held the shares in Hotel Redfern on constructive or resulting trust for Actwane and an order for transfer of the shares to Actwane. The Plaintiffs also sought the rectification of the share register to which I have referred earlier and orders pursuant to s 87 of the Trade Practices Act 1974 (Cth) and s 1324 of the Corporations Act 2001. Damages were also sought pursuant to s 1324(10) of the Corporations Act 2001. Mr Moss sought damages against Dr Larkin for misleading and deceptive conduct pursuant to ss 42 and 72 of the Fair Trading Act 1987 (NSW) and damages against Hotel Redfern and Holdings pursuant to ss 52 and 87 of the Trade Practices Act 1974 (Cth).

45 The defendants’ original solicitor filed a Defence on 19 March 2002 in answer to that Summons. That was a Defence verified by Dr Larkin on 18 October 2001. That Defence made a general denial of the plaintiffs’ entitlement to relief.

46 An Amended Summons was filed on 14 December 2001. The claims pursuant to s 52 of the Trade Practices Act were not pursued and a new claim for a declaration that the assets and undertaking of the Sky Bar was subject to an equitable charge or lien in favour of Hotel Redfern was included. The general claim for damages pursuant to ss 42 and 72 of the Fair Trading Act was amended to seek orders pursuant to s 72 of the Fair Trading Act and s 1324(1) of the Corporations Act for Holdings to transfer its shareholding in Hotel Redfern to Actwane and an order that Hotel Redfern execute and register a charge in favour of Actwane over its assets and liabilities. An alternative claim was also introduced in the Amended Summons seeking orders pursuant to s 72 of the Fair Trading Act and s 1324(1) of the Corporations Act 2001 or in equity, requiring Dr Larkin to indemnify Actwane and Mr Moss for loss or damage suffered as a result of Dr Larkin’s alleged breached of s 42 of the Fair Trading Act and s 181-183 of the Corporations Act for Dr Larkin’s alleged breaches of fiduciary duty.

47 A Defence to the Amended Summons was filed in court on the first morning of the trial, 25 March 2002 by the defendants’ new solicitors. Three of the contentions in the Summons and the defences are relevant in deciding this matter. They are contentions 6, 10 and 11 as follows:

C6. In late 2000 and early 2001 Moss (on his own behalf and on
behalf of Wybalena) agreed with Larkin (on his own behalf and on behalf of Wentworth) that Actwane would acquire a 2/3 interest in a company (the other 1/3 to be owned by an entity associated with Oliveri) which would acquire the leasehold interest in the Sky Bar Hotel at Redfern.
D8. In answer to contention 6 the defendants:
(a) Admit that in late 2000 and early 2001, Moss and Larkin agreed that they would acquire a 2/3 interest in a company (the other 1/3 to be owned by an entity associated with Oliveri) which would acquire the leasehold interest in the Sky Bar Hotel at Redfern;
(b) Deny that Moss and Larkin agreed that Actwane would be the entity to acquire that 2/3 interest;
(c) Say that in or about March 2001 Moss and Larkin agreed that Actwane Holdings Pty Ltd would be the entity to acquire that 2/3 interest;
(d) Otherwise deny contention 6.
C10. The defendant’s now assert:
(a) That Hotel Redfern has issued 3 shares, two of which are held by Holdings, and none by Actwane;
(b) That Hotel Redfern did not give and is not obliged to give any security to Actwane for the advance alleged in paragraph 9(a). [This referred to the advance to purchase the Sky Bar business, licence and leasehold].
C11. In fact:
(a) No meeting of directors of Holdings approved its acquisition of any share, or alternatively, of a second share, in Hotel Redfern;
(b) The register of members of Hotel Redfern shows Actwane as becoming a member, holding one fully paid ordinary share, on 12 September 2000;
(c) No meeting of directors of Actwane authorised any disposition of or dealing with Actwane’s share;
(d) No meeting of directors of Hotel Redfern cancelled or approved a transfer of Actwane’s share;
(e) No meeting of directors of Hotel Redfern authorised or approved the issue of transfer of any share to Holdings.
D12. The defendants admit contention 10.
D13. In answer to contention 11, the defendants say;
(a) In March 2001, the whole of the shareholders and de facto directors of each of Actwane and Actwane Holdings agreed that Actwane Holdings should acquire or be issued the 2/3 shareholding in Hotel Redfern;
(b) No meeting of the directors of Hotel Redfern approved the issue of any shares in Hotel Redfern to Actwane;
(c) Otherwise do not admit contention 11.

48 The only relief sought in these proceedings is an order rectifying the register of Hotel Redfern pursuant to s 175 of the Corporations Act 2001.

March 2001 Conversation.

49 Dr Larkin has apparently sworn a number of affidavits in these proceedings two of which were read at the trial. The affidavits that were not read were sworn on 11 and 17 October 2001. The first of those that were read was an affidavit sworn on 14 March 2002 when Dr Larkin’s solicitor was Mr Levitt of Selby Kent Levitt. The second was an affidavit sworn on 25 March 2002 after Dr Larkin’s had instructed his new solicitors, Eakin McCaffery Cox. The 25 March 2002 affidavit included the following:

7. I recall that in or about mid March 2001 I received a telephone call from Bill Moss during which we had a discussion in words to the following effect:

Mr Moss: We can’t use Actwane as the entity to hold our two–thirds interest in Hotel Redfern. Given the current litigation relating to both the Canley Heights Hotel and the Carramar Project, we can’t risk having Actwane hold our share in a new hotel, particularly where we have an option to purchase the Redfern property in the next year. If we lose one or both of the legal proceedings it may have a significant impact on Actwane’s financial position. We will have to use Actwane Holdings to hold our two-third share in Redfern.
I said: That’s okay with me.
Mr Moss: I’ve spoken to Bruce Coombes. Can you contact him and make sure he understands that’s how we want it?
I said: Okay.

8. Shortly after that I telephoned Bruce Coombes and said to him words to the effect:

I said: I’ve just had a call from Bill Moss. Our two-thirds share in the Redfern project is to be held by Actwane Holdings not by Actwane.
Mr Coombes: Bill Moss called me too. I’ll organise it.

9. At the time of these conversations there were two legal proceedings pending against Actwane. The first was an appeal to the Supreme Court of NSW from a decision of the Licensing Court granting a Hotel Licence to the Carramar site. The appellants in that proceeding included Fairfield Council and the Department of Education. The second was a proceeding brought by Fairfield Council in the Supreme Court of NSW challenging the validity of the Social Impact Assessment which entitled the Canley Heights Hotel to operate poker machines.

50 Mr Coombes affidavit of 14 March 2002 included the following:

12. I recall a facsimile letter of instruction from Dr Larkin in March 2001, requesting that the name of JAM (Petersham) Pty Limited be changed to Hotel Redfern and that the shareholders in that company be Actwane Pty Limited and Blacktown Equity Pty Limited. However, at around the same time but shortly afterwards, I received a telephone call from William Moss, which stands out in my mind because he rarely called me, in which he told me:

The shareholder in Redfern is to be Actwane Holdings – not Actwane.
Based upon the earlier discussion which I had with Dr Larkin, Mr Moss and Fred Swaab, referred to above, I considered that there was good reason for the change.

51 The earlier discussion to which Mr Coombes referred was the discussion that he claims occurred at the 5 September 2000 meeting at Mr Moss’ office at Macquarie Bank. He denied that Mr Moss said the words Mr Moss claimed he said at the 5 September 2000 meeting but did not attribute any statement to Mr Moss at the meeting.

52 Mr Moss denied that he telephoned Mr Coombes in March 2001 and and denied that he had instructed Mr Coombes that the shareholder in Hotel Redfern was to be Holdings and not Actwane. He said that he only accepted the risk because he believed that Actwane was to own two thirds of the shares in Hotel Redfern that purchased the business and the lease. Mr Moss also denied the conversation with Dr Larkin. This denial was made in the evidence in chief at the trial because Dr Larkin’s affidavit setting out the alleged conversation was only sworn on the morning of the first day of the trial.

Consideration

53 Both parties submitted that the outcome of this case depends upon whether I find that Mr Moss made the alleged statements attributed to him by Dr Larkin and Mr Coombes in March 2001. If I find that he did not make such statements then it is conceded that the relief sought by the first plaintiff should be granted. If I find that Mr Moss did make the statements attributed to him by Dr Larkin and Mr Coombes there is no issue that the plaintiffs’ Summons should be dismissed.

54 Mr B Coles QC, leading Mr P Newton of counsel and Ms R Pepper of counsel, for the plaintiffs, submitted that I would prefer the evidence of Mr Moss to that of Dr Larkin and Mr Coombes for a number of reasons. Those reasons included the standing of Mr Moss as a respected businessman and the fact that there had been no real challenge to his credibility and reliability in cross-examination. Emphasis was placed upon the recency of Dr Larkin’s and Mr Coombes’ affidavits in which they claim that the conversations took place. The first time it was suggested in any affidavit evidence that such a conversation between Mr Moss and Dr Larkin took place was in an affidavit sworn on the morning of the first day of the trial. The first time Mr Coombes apparently claimed Mr Moss made such a statement was in his affidavit of 14 March 2002 although it is obvious from that affidavit (par.2) that he had sworn an earlier affidavit on 17 October 2001.

55 Mr S D Robb QC, leading Mr N Kidd, of counsel for the defendants, submitted that I would prefer the evidence of Dr Larkin and Mr Coombes for a number of reasons. Those reasons included the fact that Mr Coombes is a professional person with no proved motivation to make a false claim in his evidence that the conversation with Mr Moss took place.

56 In cross-examination of Dr Larkin it was suggested to him that he had given some false evidence to a Registrar of this Court on 15 March 2002 during an examination in respect of the affairs of an unnamed company of which Dr Larkin was apparently a director (tr. 59-63). It was suggested to Dr Larkin that his evidence to the Registrar that he had been in Kurrajong Heights during that day was false. It was apparent from the cross-examination that there may have been some observations by way of surveillance made of Dr Larkin on 15 March 2002 and a document was shown to Dr Larkin in an attempt to have him admit that he was not in Kurrajong Heights at the time he claimed he had been in his evidence before the Registrar. Dr Larkin denied that he had given false evidence and maintained that he had travelled to Kurrajong and back to the city that day.

57 The plaintiffs did not call or tender any evidence to establish that such denial was false or that the evidence before the Registrar was false. I should say that Mr Coles did not rely upon this evidence at all in his final submissions but because the suggestion was not withdrawn it is necessary for me to indicate the approach I intend to adopt in relation to it. I intend to disregard the suggestion made in cross-examination that Dr Larkin had given false evidence about his whereabouts on 15 March 2002 either before me or before the Registrar.

The Documents

58 Mr Coombes letter to Dr Larkin on 7 September 2000 was written within two days of the 5 September 2000 meeting and I am satisfied its contents reflect what Mr Coombes understood were his instructions. He sought confirmation of those instructions from Dr Larkin, however he did not seek any instructions from Mr Moss nor did Mr Moss see the letter at the time. Mr Coombes entrusted the task of implementing those instructions to a member of his staff who no longer works with Mr Coombes’ firm.

59 The computer system in Mr Coombes’ firm generates the share register as well as all required ASIC documents that are lodged electronically. Actwane was notified to ASIC as the shareholder in JAM, rather than Holdings as had been the instruction in the letter from Dr Larkin. Mr Coombes said when he discovered the error he recorded a transfer of the share from Actwane to Holdings in the computer on 20 September 2000. However he did not notify ASIC of the change at that time.

60 The Annual Return of JAM was prepared by Mr Coombes’ firm and bore a typed or printed date “20/09/2000”. That return listed the directors of JAM as Dr Larkin and Mr Jennings and the shareholders as Holdings and Cavacress, each holding one ordinary share. On this evidence Mr Coombes had recorded Holdings as the shareholder of JAM no later than 20 September 2000.

61 Dr Larkin’s instructions in the Actwane letter of 5 March 2001 to Mr Coombes were to change JAM’s name to Hotel Redfern and that the shareholders were to be Actwane and Mr Oliveri’s company, Blacktown Equity Pty Ltd. That letter did not refer to the 2/3, 1/3 split between Actwane and Blacktown Equity, but such a shareholding had been decided upon between Dr Larkin, Mr Moss and Mr Oliveri. The implementation of these instructions would have required a transfer of the share from Holdings back to Actwane, the transfer of the Cavacress share to Actwane and the issue of a further share to Blacktown Equity.

62 Dr Larkin admitted in his oral evidence that the instructions to Mr Coombes contained in Actwane’s letter of 5 March 2001 signed by him, reflected Mr Moss’ intention and was in accordance with discussions he had with Mr Moss earlier in 2001 (tr. 47).

63 The affidavit sworn by Dr Larkin on 14 March 2002 is quite detailed in its response to Mr Moss’ affidavit of 13 November 2001. In Mr Moss’ affidavit of 13 November 2001 there is reference to a conversation between Dr Larkin and Mr Moss in April 2001 and Mr Moss’ understanding of the shareholding at that time in paragraphs 59 and 60 as follows:

59. In early April 2001, one or two days before the settlement of the Sky Bar Hotel was scheduled to occur some documents arrived in my office from St George Bank. These documents related to the further accommodation to fund the acquisition of the Sky Bar Hotel and included an increase in the guarantee limit in respect of my guarantee to St George Bank. I recall being angry on receipt of these documents because I had not received the details that I had previously asked Dr Larkin for on many occasions…accordingly, I telephoned Dr Larkin on that same day and had a conversation in words to the following effect:
Me: I have told you many times before that before I increase my liability under the guarantee and support the borrowing, I want to see a Shareholders Agreement between Actwane and Olivieri and a Loan Agreement between Actwane and Oliveri. Where are they?
Dr Larkin: I promise that they will be with you tomorrow. They have been prepared.
Me: It is very important that we account for the operations of the different hotels separately so that there is no mixing of expenses. This is especially the case given that we have a 1/3 partner in the Sky Bar Hotel.
Dr Larkin: Yes I agree, that is appropriate.
Me: I also want to see full feasibilities and cash flows for the Sky Bar Hotel before I agree to make the investment. Those provided by Phil Brooks do not reflect the true costs of running the business.
Dr Larkin: I have them and you will see them.
60. At the time of my conversation with Dr Larkin referred to in the preceding paragraph, I assumed from that conversation, and the other conversations deposed to in this affidavit, that the company which would purchase the Sky Bar Hotel would have issued capital of 3 shares. I understood that Dr Larkin and my agreement to be that of these three shares, one would be held by Frank Oliveri or an entity controlled by him, and that the other two shares would be held by Actwane.

64 In his affidavit of 14 March 2002 Dr Larkin responded to paragraph 59 in the following terms:

I deny that the conversation alleged occurred. Rather, some heat was generated between Bill Moss and me when he told me: “I think we should sell out to the Canterbury Bull Dogs”. I answered “that is ridiculous after all the effort that we have put in”. I was particularly concerned because I knew that Bill Moss was the Team Leader for the Liverpool Oasis project which was a joint venture between the Canterbury Bankstown Bull Dogs and the Macquarie Bank Trust. I heard Bill Moss tell members of the board of the Canterbury Bankstown Bull Dogs in my presence at the Canley Heights Hotel in words to the following effect “we should be buying our hotels in the Liverpool Oasis catchment area”. I knew that the Liverpool Oasis project to be a major licensed gaming development in the Fairfield area.

65 In relation to Mr Moss’ claimed understanding in paragraph 60 Dr Larkin’s affidavit of 14 march 2002 stated “I do not admit that Moss had the understanding of the shareholding in Actwane Holdings to which he is deposed”. This is an odd statement in two respects. Paragraph 60 of Mr Moss’ affidavit of 13 November 2000 does not refer to Holdings but rather to Actwane. The second is that Dr Larkin has not included any reference to the conversation he alleged took place in March 2001. It is odd that he would not have included in this affidavit the claim that he included in the affidavit sworn the first day of the trial that Mr Moss had specifically stated in a telephone conversation with him that Holdings was to hold the shares in Hotel Redfern rather than Actwane.

66 Another peculiar feature of Dr Larkin’s evidence is his oral evidence of the conversations that he claimed he had with Mr Moss between January 2001 and March 2001. These are not contained in either of his affidavits.

67 He said in evidence that between January and March 2001 he and Mr Moss discussed on a number of occasions “prior to and during the period when we had exchanged on the lease and we toed-and-froed whether it should be Actwane or Actwane Holdings” (tr.49). He then said “we stuck to Actwane. Mr Moss finally said it was too great a risk and it should be Actwane Holdings” (tr.49). The risk to which Dr Larkin referred was the threat to assets of Actwane by reason of the appeals in the Land and Environment Court and the Supreme Court of NSW. They were appeals in relation to the approvals of the licensing arrangements and the grant of poker machine licences.

68 Dr Larkin also said that in the period January to March 2001 Mr Moss became “increasingly concerned when a long winded Licensing Court hearing from Carramar, which was approved in January 2001 was again challenged”(tr.54). That is a reference to the appeal which he understood was lodged in February 2001.

69 He also said in evidence:

Mr Moss had been extremely concerned from January through to February about the impact, particularly about the second challenge in the Supreme Court and its effect on Actwane, and particularly in light of the fact that this lease had an option to purchase of 3.6 million which falls due in August this year. And he couldn’t, his decision to change from Actwane to Actwane Holdings was because of his increasing fear that Actwane’s real assets, Canley Heights and Carramar were both now under threat with no clear certainty beside our guarded optimism, or mine, no clear certainty of the result of those appeals. In the event that one or both of those appeals had been lost, Actwane’s solvency would have been put under question.
(tr.56)

70 Dr Larkin said that he was guardedly optimistic about the prospects on appeal. He was asked whether he shared that optimism with Mr Moss and he said “no”. He was asked then whether he kept that to himself and he said “no, found it hard to transmit”. When I sought clarification of what that meant Dr Larkin said “yes I told him but he was much more gloomy about the prospects”. When asked what the possible benefits might be of putting the asset into Holdings Dr Larkin said that Mr Moss saw that as “stepping at least one step away from Actwane in the event that Actwane got into financial trouble from its Supreme Court appeals” (tr.57).

71 Dr Larkin gave further evidence about the conversations that he alleged took place between himself and Mr Moss between January and March 2001. He gave the following evidence:

Q. Do you contend that Mr Moss gave you any other reason for the need to reposition the holding in Hotel Redfern than the supposed risk entailed in these proceedings?
A. No apart from his general concern about world recessions, no.
Q. And can you offer any reason why it was not until after you had written your letter of 5 March 2001 that you claim that Mr Moss exposed those forebodings to you?
A. As I mentioned, this had been the subject of discussion through January and February as to whether Actwane should risk being the entity holding it and it was his decision ultimately to change that to Actwane Holdings.
Q. There is nothing in your affidavit about discussions in January and February about whether of not Actwane should be the entity holding it. There is nothing, I want to suggest, in your affidavit evidence that suggests other than that Actwane was the intended vehicle.
A. It was, the intention was that Actwane was to be the intended vehicle, yes.
(tr.58)

72 Mr Coombes evidence was also not free of peculiarity. Much of the cross-examination of Mr Moss, as limited as it was, was to suggest that he, Mr Moss, had agreed to the acquisition of Holdings and the shareholding in JAM in Holdings name. Mr Moss claimed that he did not agree to Holdings becoming a shareholder in JAM and that he was happy for Actwane to remain the owner of the asset the subject of the investment by the joint venture.

73 When Mr Coombes wrote his letter to Dr Larkin and Dr Larkin responded, the only question Dr Larkin raised was the nature of the shareholding in Petersham Equity Pty Ltd. There is nothing in the evidence about whether Dr Larkin and Mr Coombes ever had a further discussion about that shareholding arrangement in September 2000.

74 I accept on the evidence of Mr Moss, partly confirmed by Dr Larkin, that in September 2000 Dr Larkin informed Mr Moss that JAM had two shares with one held by Actwane and the other by Cavacress. I accept that evidence even though Dr Larkin said he could not recall discussing the specific shareholding of the company at the time. Indeed the documents returned to Mr Coombes’ firm from the shelf company from which the company was acquired did show that JAM had two shares, one held by Actwane and the other by Cavacress.

75 Returning to Mr Coombes evidence in relation to the 5 September 2000 meeting, Mr Coles asked whether Mr Coombes could recall Mr Moss saying that there were already a number of investments that had been made through Actwane Pty Ltd and that the borrowings had been made to support those investments. Mr Coombes said:

A. I remember him saying that there are a number of investments within Actwane already and that was what lead me to discuss with him the principles of being able to roll over the shares which were owned by the Larkin and Moss interests in Actwane so that those shares became an asset of Actwane Holdings.
Q. Mr Moss told you or said at the meeting that as far as he was concerned he was happy for Actwane to continue to own the relevant assets both in the present and prospective future hotel investments, didn’t he?
A. I don’t recall whether he said exactly those words or not.
(tr. 75)

76 Mr Coles called for the full share register of Hotel Redfern with the historic shareholding of the company from its acquisition in September 2000 when it was previously known as JAM. Mr Coombes gave evidence that he instructed his secretary in September 2000 to transfer Actwane’s share, which he said, had been issued to Actwane by mistake, to Holdings. Notwithstanding that the register records changes in relation to Cavacress transferring its share to Blacktown Equity there is nothing recording the transfer of the share from Actwane to Holdings. Indeed there is nothing in the register identifying that Actwane ever held the share. In my view this is most peculiar.

77 The only document recording Actwane’s holding of the one share in JAM was the printed document returned to Mr Coombes’ firm from the company from which JAM was acquired which recorded that one ordinary share had been issued to Actwane of 12 September 2000. Mr Coombes was asked about this topic in cross-examination. He gave the following evidence:

Q. Once upon a time, according to you, there would have been, I take it, recorded on your company’s computer, although you would have said erroneously, Actwane Pty Ltd as a member?
A. Yes.
Q. But that historical information does not appear on the 26 March 2002 printout does it? Or maybe it is the 24th?
A. 26 March. No.
Q. Is that because the computer only tries to tell you the position up to date as at the moment.
A. No.
Q. Why has your computer not reproduced any historical information so far as Actwane Pty Ltd is concerned?
A. I do not know.
Q. It has Cavacress Pty Ltd there, has it not?
A. Yes.
Q. It was a former member?
A. Yes.
Q. So, I take it that it is possible to insert and delete material with this computer virtually at will, is that right?
A. I do not know.
Q. I think you would know that?
A. If I knew I would not answer I do not know.
Q. Can I suggest to you the omission from the document you have produced of any reference to Actwane even being formerly a member suggests that something may have been done to this document, or to the information in the computer from which it is printed to ensure, or at least produce the result, that the earlier reference to Actwane Pty Ltd was deleted?
A. Are you suggesting that?
Q. Yes. I am inviting you to comment on the proposition and tell me if you agree with it or not. If you do not, why not?
A. I do not know.
(tr.91)

78 As I have said earlier there is no evidence of the reason the Petersham Inn project was abandoned nor is there any evidence as to when it was abandoned. However Mr Coombes’ evidence is that there was little, if any, contact between the time the Petersham project was abandoned and March 2001 when he received Dr Larkin’s letter on Actwane’s letterhead in relation to Hotel Redfern (tr.88).

79 In Mr Coombes’ affidavit of 14 March 2001 the only conversation he deposed to as having occurred between he and Mr Moss in March 2001 is that Mr Moss said “the shareholder in Redfern is to be Actwane Holdings - not Actwane”. In his oral evidence Mr Coombes agreed that although he had instructed his secretary in September to change the shareholding from Actwane to Holdings he did nothing about notifying ASIC until March 2001 when the annual return of JAM was lodged on 26 March 2001. That annual return had a printed date of 20 September 2000 when it was prepared by Mr Coombes’ firm. Dr Larkin signed it on 14 March 2001. The return recorded Holdings and Cavacrees as the shareholders.

80 Mr Coombes said that he looked at the annual return (Ex. 2) before he lodged it with ASIC and that he saw that Cavacress Pty Ltd was still recorded as a member of JAM in the annual return (tr.83-84). He said that he knew that Cavacress was never intended to have anything to do with Hotel Redfern and that as at 26 March 2001 his instructions in Actwane’s 5 March 2001 letter were that the shareholders of Hotel Redfern were to be Actwane and Blacktown Equity Pty Ltd.

81 There is no explanation in the evidence as to why Mr Coombes would allow a document to be lodged with ASIC recording Holdings and Cavacress as the shareholders in JAM when at the time the Annual Return was lodged he had received the letter from Dr Larkin on Actwane’s letterhead that Actwane and Blacktown were to be the shareholders and, on his version of events, he had received a call from Mr Moss telling him that Actwane’s share was to be held by Holdings, meaning that the shareholders were either Actwane and Blacktown Equity or Holdings and Blacktown Equity.

82 Mr Coombes affidavit stated that he received the call from Mr Moss “at around the same time but shortly afterwards” the letter of 5 March 2001 from Actwane signed by Dr Larkin. The date of lodgement of the Annual Return, 26 March, is really not “at around the same time or shortly afterwards” 5 March. He lodged a return which did not reflect either Dr Larkin’s or Mr Moss’ instructions. It is peculiar that Dr Larkin signed the Annual Return on 14 March 2001 which recorded Cavacress and Holdings as shareholders of JAM at a time when, according to a company resolution of Hotel Redfern (Ann.D to Mr Moss’ Affd. 13.11.01) on 28 February 2001 it had changed its name to Hotel Redfern, and Dr Larkin had given instructions to Mr Coombes in Actwane’s letter of 5 March 2001 that Blacktown Equity and Actwane were the shareholders.

83 A further feature to Mr Coombes evidence that I find at odds with Dr Larkin’s evidence is that in cross-examination he said that when he received the letter of 5 March 2001 from Actwane he noticed that it was different to what was “originally agreed”. He said that when he was preparing the documents in accordance with those instructions he spoke to Dr Larkin and said “are you sure you want this to be Actwane, when we were with Mr Moss it was always going to be like Actwane Holdings”. He said that he thought Dr Larkin said “oh, I had better speak to Bill about that” or “oh, I’ll think about it”. Mr Coombes said that Dr Larkin made him think that “the instructions were to be clarified, something along those lines” (tr.85).

84 Mr Coombes said that after this conversation with Dr Larkin, which was not contained in his affidavit, he then heard from Mr Moss and that Mr Moss was “concerned about these things being right, you know, along those sorts of lines and rang me up and said “look you’ve got to get this right”” (tr.86). When it was pointed out to him in his cross-examination that he had claimed in his affidavit that it was after the call from Mr Moss that he spoke to Dr Larkin he said “yes that is true. It doesn’t mean I didn’t discuss it with Larkin before that” (tr.86).

85 Mr Coles suggested to Mr Coombes that Mr Moss did not give those instructions and the following cross-examination occurred:

Q. Did you say to Mr Moss, do you remember anything else you and Mr Moss discussed on this occasion you claim he telephoned you?
A. No, I don’t. I remember him being a little concerned that things be right but I don’t remember any other issues were discussed or whatever.
Q. I suggest to you that if you had this conversation with Mr Moss at all and he had said that the shareholder in Redfern is to be Actwane Holdings, not Actwane, you would have made a very simple, short and obvious reply, wouldn’t you?
A. I would have said, if he said to me the shares should be Actwane Holdings I would say something like “I will do it then”.
Q. What you would have said had that conversation occurred: You would have said, “don’t you worry, despite the fact that there was a possible hiccup when I formed the company, I fixed up the company records and it is Actwane Holdings Pty Ltd already anyway”? That is what you would have said if this was a truthful occurrence, consistent with your own evidence I suggest.
A. Yes, I would say words along those lines, absolutely.
Q. And you don’t assert that you said anything like that, do you?
A. I don’t assert what I said.
(tr.87)

86 If Dr Larkin had received a call from Mr Coombes questioning him about whether the contents of the 5 March 2001 letter were what was really intended I would have expected Dr Larkin to have given some evidence either in his affidavit or in his oral evidence. That did not occur. Indeed Dr Larkin claimed that Mr Moss phoned him and asked him to tell Mr Coombes that that is what was to happen. He said that he told Mr Coombes that Mr Moss had phoned him and that Mr Coombes responded, “yes he has just phoned me”.

87 The conversation that Mr Coombes alleges occurred between himself and Dr Larkin when he said that Dr Larkin would clarify the instructions is also odd. Dr Larkin’s evidence was that he had already discussed with Mr Moss on a number of occasions in January and February 2001 whether Actwane or Holdings was to be the shareholder. He was clear in his evidence that they had decided it was to be Actwane and not Holdings. As a result of those discussions he wrote the letter of 5 March 2001. It is odd that he would then need to clarify those instructions. Indeed as I say Dr Larkin makes no mention of being asked to clarify it, suggesting he should clarify it, or requesting clarification.

88 The secretary who put in train all of the instructions provided by Dr Larkin and the alleged instructions from Mr Moss was not called in the proceedings. No explanation was given for her absence other than Mr Coombes claiming that he did not need any corroboration. Mr Coombes claimed that when he received the letter from Dr Larkin on Actwane’s letterhead he started the process of complying with the instructions by speaking with one of his staff. He claims that it was during that discussion that he noticed the matter that caused him to ring Dr Larkin for clarification. It seems to me in the circumstances that the staff member referred to by Mr Coombes would have been an important witness in this matter. What actually happened in March 2001 in relation to ASIC documentations is most unclear, apart from the extraordinary filing of the Annual Return with the wrong shareholders.

89 Mr Coombes has no file note of any conversation with Dr Larkin in relation to the alleged change of the 5 March instructions nor does he have any file note of the instruction allegedly given to him by Mr Moss. In trying to decide the probabilities of what occurred in March 2001 the steps taken by Mr Coombes in lodging documents with ASIC inconsistent with the true position at a time when he claims Mr Moss had given him certain instructions and at a time Dr Larkin had given instructions have been taken into account in reaching my conclusion. The lateness of the claim made by the defendants of this conversation is also a matter that I have taken into account. I have also taken into account the financial advantage to Mr Moss if the shareholding is in Actwane’s name.

90 The motivation alleged for Mr Moss to state falsely that he did not make the call in March 2001 is that he stands to gain financially if the shareholding in Hotel Redfern is in Actwane’s name. That would then enable him to have recourse to the Sky Bar Hotel asset as a subrogated secured creditor. The motivation alleged for Dr Larkin to state falsely that the conversation did happen is to keep the Sky Bar Hotel asset from the reach of Mr Moss and/or the Liquidator. The motivation alleged for Mr Coombes to state falsely that a conversation with Mr Moss occurred in March 2001 is to support his client, Dr Larkin, and to somehow justify the steps he took in acquiring the companies in September 2000 with the respective shareholding as were issued and changed at that time.

91 In considering the evidence of these three professional people in which the only real issue is whether a conversation did or did not take place it has been necessary to look to evidence independent of the word of each of them to reach a conclusion. That includes that documentary material that was generated between September 1999 and May 2000.

92 The matter of the acquisition of the companies was marred by apparent mistakes and confusion. Actwane was issued with a share in JAM when Mr Coombes claimed it was not so intended. There is no record of Actwane being issued with a share in the register of members of Hotel Redfern, nor is there any record of the transfer of Actwane’s share to Holdings. At around the same time in September 2000 that Dr Larkin was confirming instructions to Mr Coombes that Holdings was to be the shareholder in JAM he informed Mr Moss that Actwane was the shareholder in JAM.

93 When the decision to purchase the Sky Bar was communicated to Raine & Horne by Dr Larkin the suggested purchaser was Petersham Equity. Dr Larkin had suggested to Mr Coombes in September 2000 that the shareholding in Petersham Equity should be in the name of Dr Larkin and Mr Moss rather than Holdings, but he informed Raine & Horne in January 2001 that Actwane was the controller of Petersham Equity. The ASIC search records Holdings as the shareholder of Petersham Equity.

94 When Dr Larkin signed the Agreement for Sale of Business in February 2001 it was not Petersham Equity that was identified as the purchaser but Actwane Hotel Management (Petersham) Pty Ltd. That is a company in relation to which there is no ASIC search in evidence.

95 Then there is the lodgement of the annual return of JAM on 26 March 2001, which I regard as quite extraordinary. Dr Larkin as a director signed that document on 14 March 2001 in which he informed ASIC that the members were then Holdings and Cavacress. On any view that demonstrates a lack of care, at the very least, in complying with his statutory obligations. Less than two weeks earlier he had instructed the accountant that JAM was to change its name to Hotel Redfern, which occurred by resolution dated 28 February 2001, and that Actwane and Blacktown Equity were to be the shareholders. No evidence has been given to explain how this extraordinary lodgement occurred.

96 By reason of the fact that Dr Larkin agreed in his evidence that he and Mr Moss had decided that Actwane was to be the shareholder in Hotel Redfern, the onus is on the defendants to establish on the balance of probabilities that the conversations alleged in March 2001 between Mr Moss and Mr Coombes and Mr Moss and Dr Larkin took place. The peculiar features of Mr Coombes’ and Dr Larkin’s evidence to which I have referred earlier and the documents surrounding these transactions, independent of the word of each of the witnesses, lead me to the conclusion that more probably than not the conversation did not take place. I accept Mr Moss’ claim in his evidence that he did not make such a telephone call to Mr Coombes or Dr Larkin.

97 It is not in issue that the power of the court to order rectification of the register is no more or and no less then a part of its general jurisdiction to “act in personam” in aid of a legal right which is subject to the same principles which apply generally to equitable remedies: Grant v John Grant & Sons Pty Limited (1950) 82 CLR 1 per Fullagar J at 51. All parties have approached this case upon the basis that a finding of fact in relation to the conversation in March 2001 will govern whether such an order should be made. No other matters have been argued.

98 I make an order in terms of paragraph 3 of the Amended Summons. If the parties are unable to agree on a costs order I will hear argument in due course.

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Last Modified: 04/09/2002