Bova v Avati

[2009] NSWSC 921

CITATION:	Bova v Avati [2009] NSWSC 921
HEARING DATE(S):	18,19, 20, 21, November 2008, 23, 24, 25, 26, 27 March, 18 May and 30 July 2009
JUDGMENT DATE :	4 September 2009
JURISDICTION:	Equity Division
JUDGMENT OF:	Ward J
DECISION:	Judgment for the Defendant
CATCHWORDS:	PARTNERSHIP – generally – whether plaintiff and defendant were engaged in partnership for the production, promotion and performance of comedy act – whether national comedy tour was an opportunity of the partnership, for which the defendant was liable to account – whether copyright in artistic work and sound recording were property of partnership for which the defendant was liable to account – whether defendant had breached fiduciary duty by use of opportunity and/or copyright – held that partnership between the plaintiff and defendant very limited in scope and did not extend to opportunity or copyright  - PROCEDURE – discovery and interrogatories – discovery and inspection of documents – whether defendant had complied with discovery obligations – whether documents which the defendant would have been likely to obtain upon request were discoverable, absent an enforceable legal right to obtain them – held that such documents not discoverable – no evidence that defendant had failed to comply with discovery obligations.
LEGISLATION CITED:	Civil Procedure Act 2005 Copyright Act 1968 (Cth) Partnership Act 1982 (NSW) Supreme Court Rules
CATEGORY:	Principal judgment
CASES CITED:	Absolute Analogue Inc v Sundance Resources Limited [2008] WASC 259 Adam v Newbigging (1888) 13 App Cas 308 Aetna Pacific Securities Limited v Hongkong Bank of Australia Limited (unreported, 29 April 1993) BSP Technical Services Pty Limited v AMEV-UDC Finance Limited (unreported, Hodgson J, 25 March 1985) Canadian Aero Service Limited v O’Malley [1974] SCR 592, (1973) 40 DLR (3RD) 371 Canny Gabriel Castle Jackson Advertising Pty Limited v Volume Sales (Finance) (1974) 131 CLR 321 Cribb v Korn (1911) 12 CLR 205 Douglas-Hill v Parke Davis Pty Limited (1990) 54 SASR 346 Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FCR 17 Hadid v Redpath (2001) 35 MVR 152 Harvey v Harvey (1970) 120 CLR 529 Hybernia Management & Development Co v Newfoundland Steel Inc (1996) NFLD & PEIR 90, 107 Industrial Equity Limited v Lyons (NSWSC unreported, Cohen J, 15 October 1991) Lawfund Australia Pty Limited v Lawfund Leasing Pty Limited (2008) 66 ACSR 1 Lonrho Limited v Shell Petroleum Co Limited [1980] 1 WLR 627 Macpherson v Macpherson (unreported, Supreme Court of Victoria Full Court, 30 November 1990) Midalco v Simpson (unreported, Supreme Court of Western Australia Full Court, 5 June 1987) Monie v Commonwealth of Australia (2005) 63 NSWLR 729 Mount Lawley Pty Limited v Western Australian Planning Commission (unreported, WASC, 19 March 1999) NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 Neilson v Mossend Iron Co (1886) 11 AC 298 Palmdale Insurance Limited (in liq) v L Grollo & Co Pty Ltd [1987] VR 113 Phillips-Higgins v Harper [1954] 1 QB 411 Roux v ABC [1992] 2 VR 577 Russell v Russell (1880) 14 Ch D 471 Sabre Corp v Russ Kalvin’s Hair Care (1993) 46 FCR 428 Sogelease Australia Limited v Griffin [2003] NSWSC 178 Spedley Securities Limited (in liq) v Bank of New Zealand (1992) 6 ACSR 571 SPI Spirits (Cyprus) Limited v Diageo Australia Limited (No 2) (2006) 155 FCR 150 Taylor v Santos Limited (1998) 71 SASR 434 Theodore v Australian Postal Commission [1988] VR 272 United Builders Pty Limited v Mutual Acceptance Limited (1980) 144 CLR 673 United Dominion Corporation Limited v Brian (1985) 157 CLR 1 Watson v Foxman (1995) 49 NSWLR 315 Weiner v Harris [1910] 1 KB 285
TEXTS CITED:	Ritchie’s Uniform Civil Procedure NSW Lindley & Banks on Partnership
PARTIES:	Carlo Bova (Plaintiff) Giuseppe Avati aka Joe Avati (Defendant)
FILE NUMBER(S):	SC 4307/01
COUNSEL:	P T Russell (Plaintiff) G A Sirtes SC (Defendant)
SOLICITORS:	Worthington Williams (Plaintiff) Gells (Defendant)

- 2 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WARD J

FRIDAY 4 SEPTEMBER 2009

4307/01 CARLO BOVA V GIUSEPPE AVATI aka JOE AVATI

JUDGMENT

1 These proceedings (commenced in August 2001 by summons) involve a dispute between the plaintiff (a musician with around 30 years’ experience in the music or entertainment industry) and the defendant (a professional comedian since 1998) as to the nature of their working relationship over the period from April 1999 to July 2000.

2 Originally, Mr Bova sought orders and declaratory relief principally in relation to a claim of copyright in three particular sound recordings (contained in CDs and audio cassettes titled “Livin’ La Dole-Cheque Vita”, “Live & Unpluggato” and “Livin’ La Dolce Vita”) and in a large number of comedy sketches, skits or routines identified in Schedule 1 to the Summons. In the alternative, a claim was made for the winding up and taking of accounts of an alleged partnership in which Mr Bova says he was engaged with the defendant.

3 After various iterations (including an abandoned Fair Trading Act claim), the claim pursued by Mr Bova at the hearing was one based solely on the alleged partnership (though expanded to include claims of breach of fiduciary duty in relation thereto). As I understand it, it is accepted by Mr Russell, Counsel for the plaintiff, that the effect of the amendments to Mr Bova’s pleadings was to abandon (or eschew) any claim that Mr Bova personally owns any copyright in any of the artistic, literary or dramatic works to which reference had been made in the pleadings (19.11.08 T 20.19-20) as well as any claim that Mr Avati has breached that copyright (19.11.08 T 14.33; T 15.20-22) (see also the discussion on 19 November 2008 at T 15.16-22; T 16.13-14; T 17.15-25; T 20.19-20). That said, Mr Russell confirmed on 19 November 2008 that Mr Bova does allege that certain copyrights form partnership property (T 16.13, though conceding that all claims in Mr Bova’s own right had been abandoned), being property in respect of which it is said that Mr Avati is liable to account to the partnership (19.11.08 T 17.16; T 15.21).

4 Paragraph 14 of the Second Further Amended Statement of Claim alleges that the copyright in the sound recording referred to in paragraph 13(b)(i) (the “Livin’ La Dole-cheque Vita” CD) and in the artistic work referred to in paragraph 13(e) (described as “T-shirts bearing the artistic work of a photograph of the defendant in a particular pose bearing the slogan ‘Te’ Nonna’”) are assets of the alleged partnership. Mr Bova’s claim before me in this regard was, as I understand it, limited to an account to the partnership for the use of those alleged partnership assets (19.11.08 T 17.16). Mr Russell expressly disavowed any claim by Mr Bova in relation to the jokes or routines (18.11.08 T 74.21), confirming that there was no issue as to whether Mr Avati could in the future perform the jokes or skits that were recorded on the Livin’ La Dole-Cheque Vita CD (see discussion on 18.11.08 at T 80.40 – 81.33).

5 The hearing commenced on 18 November 2008. It was listed for five days. Following the taking of objections in relation to Mr Bova’s affidavit evidence and argument in relation to the scope of the claim as then pleaded, leave was given for the further amendment by Mr Bova to the pleadings and the hearing was adjourned (without any oral evidence by then having been taken) until 23 March this year. Oral evidence was taken from 23 March to 27 March 2009 but not completed by that date (due to the need for further cross-examination on the damages aspects of the claim). The hearing resumed for one day on 18 May 2009 and, following the service of written submissions prepared for each of the parties, concluded with oral submissions on 30 July 2009. (I subsequently invited further written submissions on a discrete issue relating to any relief which might be available.) Fortunately, having regard to the disrupted nature of the hearing, I have had the benefit (when preparing these reasons) of the extensive notes taken by me during the hearing and, in particular, as to the respective witnesses (see generally Hadid v Redpath (2001) 35 MVR 152 at 159 [34] per Heydon JA; Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FCR 17 at 33 [73]; Monie v Commonwealth of Australia (2005) 63 NSWLR 729 at 742 [43] per Hunt AJA; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at 504 [109]-[111] per Kirby J, at 525 [169] per Callinan and Heydon JJ).

Mr Bova’s claim

6 Broadly speaking, Mr Bova alleges that (from a date which varied dramatically, not only over the course of the different pleadings but also during the course of his evidence in the witness box, from as early as March 1998 – well before the pair had even met - to as late as May 1999) he and Mr Avati entered into a partnership agreement for the commencement of a business together in the “production, promotion and performance by the parties of a comedy act based on cultural and lifestyle aspects of living in Australia with a Calabrian background” (my emphasis) (paragraph 5 of the Second Further Amended Statement of Claim).

7 Having regard to Mr Bova’s affidavit evidence, it seems clear that what Mr Bova understood by that “comedy act” (at least when he came to swear his affidavit of 28 February 2006) was a comedy act he refers to in that affidavit as “The Show”, and which seems elsewhere to be referred to as the “minimum show”, first performed at the Parramatta Riverside Theatre in July 1999. (Senior Counsel for Mr Avati (Mr Sirtes) emphasises that it is this alleged partnership (with the terms as pleaded), and no other partnership or association, on which the whole of Mr Bova’s claim stands or falls.) Mr Bova seems to regard “The Show” as something transportable or reproducible from one production to the next. Mr Avati, on the other hand, sees his comedy act as one which is constantly evolving. (In that regard, it seems unlikely that stand-up comedy would not involve at least an element of spontaneity. Mr Avati’s evidence as to the development of his comedy routines seems to accord with the recollection of his brother, Anthony Avati, as to at least some of those comedy routines.)

8 Mr Avati denies the alleged partnership, though he does accept that there were two particular comedy productions (Carnivale Comedy and a New Years’ Eve show at The Forum) in respect of which he did act in partnership with Mr Bova (T 265.4-10). The distinction drawn by Mr Avati in this regard is that those two events involved the promotion of other comedy acts, not of a show with Mr Avati as sole performer. Mr Avati says that (in relation to ‘his’ own show) what he agreed with Mr Bova was that he would retain or employ Mr Bova as his manager for an initial 12 month period, after which he chose not to renew that retainer. Mr Avati makes no distinction between the position of an employee or a contractor. The essence of his position is that he agreed to pay Mr Bova “to do something”.

9 What is not in dispute is that the parties’ working relationship came to an end (at Mr Avati’s instigation) on 13 July 2000. Mr Bova contends that this was done by Mr Avati with the purpose, inter alia, of Mr Avati usurping or diverting to himself the business and opportunities of the alleged partnership (paragraph 15A Second Further Amended Statement of Claim), though Mr Bova’s affidavit evidence suggests that he thought at the time that Mr Avati had done so not so much with a view to forthcoming profits but because of interference by Mr Avati’s father (para 97 of his 28 February 2006 affidavit). Indeed, Mr Bova’s immediate response in the witness box to the suggestion that he had understood in July 2000 that Mr Avati had improperly terminated the partnership was that it was “Frank Avati [Joe’s father], not Joe Avati” [who had improperly terminated the “partnership”] (T 59). Mr Bova felt he had been unfairly “dismissed” from his managerial duties (and, it would seem, considered he had been arbitrarily excluded from participation in “The Show”).

10 Mr Bova seeks (apart from orders relating to the winding up of the partnership) an order that Mr Avati account to him (or to the alleged partnership) for any profits or benefits received or derived by him from the sale of the respective CDs and T-shirts and from a national comedy tour (the “Lock Up Your Nonna” tour) which commenced in late April 2000 and was continued by Mr Avati (after the termination in July 2000 of whatever were the then business arrangements (to use a neutral term) with Mr Bova) until July 2001.

11 This relief is claimed, variously, on the basis of the statutory entitlement to an account on the winding up of a partnership; on the basis of a fiduciary obligation on the part of Mr Avati, after the relationship came to an end, to co-operate in and act consistently with the agreed procedure for the realisation, application and distribution of partnership property (relying on Chan v Zacharia (1984) 154 CLR 178 at 196-197); and on the basis that it is said that Mr Avati obtained or derived a benefit or gain in circumstances where there was a conflict or significant possibility of conflict between his fiduciary duty and his personal interest in the pursuit or possible pursuit of such gain, or alternatively that such a benefit or gain was obtained or received by use or by reason of his fiduciary position or of opportunity or knowledge resulting from it. Reliance is placed on the corporate opportunity doctrine applied in Canadian Aero Service Limited v O’Malley [1974] SCR 592, (1973) 40 DLR (3RD) 371 in this regard.

12 There is no dispute that since July 2000 Mr Avati’s career as a comedian has enjoyed a greater measure of success both in Australia and in Canada than had hitherto been the case (the “Live & Unpluggato” CD, for example, reaching a number one rating in Canada). Mr Sirtes describes this claim as a parasitic and opportunistic attempt by Mr Bova “to cash in on the considerable success” enjoyed by Mr Avati after the termination of an arrangement in which Mr Bova’s role was merely that of managerial duties. Mr Bova, for his part, seems to have seen the pursuit of these proceedings as testament to his courage in (perhaps belatedly) standing up for his rights (T 184). In my view, Mr Bova’s claim seems to be one born out of a genuine sense of grievance that his association with Mr Avati was so suddenly brought to an end after all he had contributed to, or done for, Mr Avati’s career, but that does not of itself give him the entitlement he claims.

Issues

13 The fundamental issue in these proceedings is whether there was a partnership, as between Mr Bova and Mr Avati, for the period from about April 1999 to 13 July 2000, as alleged by Mr Bova. As noted above, all of Mr Bova’s claims for relief (including his claim to an account on the winding up of the partnership and to profits on the sale of the CDs and t-shirts) are predicated on the existence of the said partnership.

14 If there was a partnership between the two, then issues arise as to the terms and scope of that partnership; particularly, as to what was the business or property of that partnership and whether (as contended by Mr Bova) the continuation of the “Lock Up Your Nonna” national tour from July 2000 was a wrongful use or diversion of partnership property or business connections or of a maturing business opportunity of the partnership, so as to give rise to a claim by Mr Bova to share in the profits therefrom.

15 If Mr Bova is successful in establishing an entitlement to an account of profits or to equitable compensation on the basis of a breach of fiduciary duty or otherwise, a further issue then arises as to whether any such relief must be based on evidence confined to that which was adduced during the hearing or whether there should be a further enquiry for the purposes of determining the profit for which Mr Avati should account or the equitable compensation for which he is liable (depending on Mr Bova’s ultimate election as to the alternative forms of relief claimed). This is the issue on which I invited supplementary submissions after the close of the hearing, having had further regard to the transcript of what was said at the time the then scheduled hearing dates were vacated by the former Chief Judge in Equity in August 2007 (something to which my attention had been drawn at an earlier directions hearing in this matter).

Summary

16 For the reasons set out in more detail below, I have reached the following conclusions on the issues outlined above.

(i) Was there a partnership as pleaded?

17 I am not satisfied that there was a partnership between Mr Bova and Mr Avati in the terms as pleaded, namely one pursuant to which they would jointly produce/perform comedy acts of Mr Avati (described by Mr Sirtes in his submissions as the “overarching” partnership claim).

18 I am of the view that the joint venture or undertaking which the parties agreed, in mid 1999, to pursue was one which was limited (in the first instance) to the comedy performances by Mr Avati which were booked at the Parramatta Riverside Theatre from July to September 1999 (the “Parramatta Riverside Theatre shows”).

19 Insofar as the parties subsequently conducted the production of other comedy shows together (such as the Enmore Theatre November 1999 shows, the New Year’s Eve Leichhardt show and the January 2000 Crown Limited Club Odeon show) without first having put in place or discussed any other working arrangement, then I think it could be inferred that they did so on the same basis as the Parramatta Riverside Theatre shows.

20 Having regard to the discussions between the parties from at least March 2000, I think it is clear that the parties had not, as at April 2000 or at all, agreed the basis on which any further shows were to be produced (and, in particular, had not agreed that the then anticipated national tour was to be conducted on the same basis as the Parramatta Riverside Theatre shows). Accordingly, I do not consider that the steps taken towards a then proposed joint production of the series of shows comprising the Lock Up Your Nonna national tour can be said to have been governed by or on the same basis as the arrangements which were agreed in mid 1999 for the Parramatta Riverside Theatre shows.

21 Mr Bova’s claims, based as they are on a broader or “overarching” partnership (including his claim to a statutory account on the winding up of any such partnership), must therefore fail.

(ii) Scope of the limited joint venture/partnership between the parties

22 As to the nature of the joint venture/undertaking in which the parties were involved in 1999 in relation to the Parramatta Riverside Theatre shows, although the evidence is by no means consistent I consider on balance that the arrangements between the parties were such as to give rise to the conclusion that they were in partnership together for a limited purpose – namely, for the production of the Parramatta Riverside Theatre shows – and that they later produced a limited number of other shows (the Enmore Theatre shows, for example) on the same basis.

23 I reach that conclusion taking into account that there was clearly a common enterprise; that, although the basis on which the payments ultimately made to Mr Bova were calculated is not clear, the payments seem to have represented (and the parties had understood that Mr Bova would receive) a share of the returns from those particular shows, after reimbursement of Mr Bova’s initial expenses (and, later, after a sharing of expenses by way of allocation of a percentage of the show revenues to ongoing costs); that Mr Avati had referred to Mr Bova as his “partner” to Ms Maggio (whose evidence I accept in this regard) and, in all likelihood, to others (since he seems to have used descriptive terms such as “partner”, “business partner” or “manager”, fairly loosely) as well as on the CD insert for the Livin’ La Dole-Cheque Vita CD; and that Mr Avati, at the very least, did not disabuse Mr Bova’s accountant (Mr Gillon) of the notion that the two were intending to share (and had in the past shared) the profits of activities conducted jointly under the LEM business name. I do not see the informality of this arrangement as precluding a finding of partnership, particularly since an informal collaboration of this kind is consistent with the way in which Mr Avati seems to have been content to allow others (including later, for example, his uncle Mr John Suraci who he said wanted to become his “partner” and seems to have been allowed to exercise managerial or distribution rights) to become involved in his career.

24 I do not accept that the production of the Livin’ La Dole-Cheque Vita CD was an activity carried out within the scope of any such (limited) partnership as existed between the pair. It resulted, on Mr Bova’s own evidence, from a separate arrangement between the two (and one which was, according to Mr Bova, at least initially limited to the profits of the first one thousand CDs produced). Similarly, I do not consider that the production of the Te Nonna t-shirt falls within the scope of any such limited (Parramatta Riverside Theatre shows) joint venture or partnership. Nor am I satisfied that Mr Bova has established that the copyright in either the Livin’ La Dole-Cheque Vita CD or the Te Nonna t-shirt was an asset of the “partnership” simply because those items were produced in connection with the marketing of Mr Avati’s shows.

25 I do not consider that the “Lock Up Your Nonna” national tour was a maturing business opportunity of any such (limited) partnership. Nor would I have found that to be the case even if I had found there to be an overarching partnership of the kind alleged by Mr Bova (with perhaps the possible exception of a claim for a half share of the profits for national tour bookings already made as at 13 July 2000). At best, had I found a partnership as alleged by Mr Bova, I would have found that the only use of business connections which might have been able to form the subject of a claim for breach of fiduciary duty by Mr Bova would have been the use of whatever contacts or connections the pair had developed over the course of their “partnership” to make the national tour bookings as at 13 July 2000 (ie for the next three months), the evidence as to which is by no means clear. It is not apparent that the bookings were made using any such connections. Rather, the evidence suggests that the pair discussed between themselves likely venues, and one or other of the pair made enquiries as to those likely venues and proceeded on the basis of those enquiries to make bookings at least up until 8 July 2000. Therefore, I consider that any claim for equitable compensation or account of profits by reference to the national tour would have been limited to that extent.

26 The reason I do not see the national tour as otherwise falling within any maturing business opportunity doctrine (assuming the doctrine were to be applicable) is that neither Mr Avati nor the comedy routine(s) he had developed was the “property” of the partnership, as such. The fact that inchoate ideas for a national tour, or for production of a second CD, were discussed between Mr Bova and Mr Avati does not seem to me to amount to a sufficient business “opportunity” arising out of any joint venture or partnership between them to invoke that doctrine. The fact that Mr Avati continued after July 2000 to perform and develop a comedy routine which had its origins even before he met Mr Bova makes it difficult for me to accept that (even to the extent that Mr Bova may be said to have assisted in its development) Mr Avati’s “show” was a business opportunity arising out of the working relationship between the pair such as to make it a breach of fiduciary duty for him to continue to perform the “show” for his own benefit after that working relationship came to an end.

27 To the extent that it is relevant, I find as a matter of fact that Mr Avati terminated his working relationship with Mr Bova not (as alleged) with the purpose of usurping or diverting the profits from the national tour but because he had become concerned that Mr Bova was not “pulling his weight” in the relationship and had formed the view (whether influenced by his father or otherwise) that he no longer wished to continue their working relationship. As Brereton J recognised in Lawfund Australia Pty Limited v Lawfund Leasing Pty Limited (2008) 66 ACSR 1, absent express provision a partnership is ordinarily terminable at will (at [32]) and, again absent special provision, a partner is not required by the obligation of good faith to remain in partnership with another with whom he or she no longer wishes to be associated (at [33]).

28 Similarly, even had I found there to have been a partnership of the kind alleged (and a fortiori on the only partnership which I consider may have been established), I would not have upheld the claim for profits for the sale of the Live & Unpluggato CD, which came into existence after the relationship ended and could not, in my view, be seen as a “maturing” business opportunity of any partnership between the two based solely on the brief discussions the pair seem to have had as to the idea to create a “new” CD.

(iii) Relief

29 If, as I have concluded, any partnership (or joint undertaking or enterprise) between Mr Bova and Mr Avati was for the production of a specific series of shows, then once that series came to an end so, arguably, must have the partnership. (As Brereton J noted in Lawfund, at least in some single undertaking joint ventures a term may be implicit to the effect that the relationship continues until the object of the venture is achieved whereupon it comes to an end, though ultimately the terms of the parties’ agreement will be decisive.) In any event, it clearly came to an end, if not before, on 13 July 2000.

30 Since Mr Bova seems to accept that he has received all to which he claims he was entitled as at that date (other than profits from the ongoing national tour or for the CDs/merchandise to which I do not consider him to be entitled), an order now for the taking of accounts for the limited partnership would seem to be of no utility. In any event, as I understand it no such relief was sought other than in relation to the “overarching” partnership pleaded in the Second Further Amended Statement of Claim.

31 In light of the conclusions I have reached, the claims for relief have not been established. Had a breach of fiduciary duty as alleged been made out, the question would arise as to whether any further account or enquiry as to profits/damages should be allowed.

32 But for one issue, I would have been inclined in those circumstances to find that any equitable compensation or account of profits should be determined on the evidence already before the court. This matter has been on foot for an inordinately long time. Mr Bova has had ample opportunity to gather evidence to support his claim and has been on notice since at least August 2007 that issues of quantification were, or were likely, to be dealt with as part of the main hearing rather than (as had been suggested to Young CJ in Eq, as his Honour then was) the subject of a separate enquiry or referral to an Associate Judge.

33 The qualification I make to this is that which arises out of the concerns that have been raised as to whether there has been compliance by Mr Avati of his discovery obligations. I am not in a position to make, and do not make, any finding as to this. However, in circumstances where there was evidence (albeit, on Mr Avati’s part, that this was for overall tax planning purposes) that, shortly after these proceedings were commenced, Mr Avati’s business affairs were re-structured with the effect that the control of those affairs was placed (as was the entitlement to receipts referable to his shows/sale of CDs or the like, other than his annual salary) not only outside his hands but also largely outside the jurisdiction and where Mr Avati’s responses in the witness box suggest that he was somewhat cavalier in exploring whether any relevant documents could have been made available by way of discovery or in answer to a notice to produce served on him in these proceedings (so, for example, at T 432, Mr Avati accepted that he could have worked out profit from calculating the number of sales less cost of sales but then said, “If I wanted to. For what reason?”), I would have been inclined (had I considered Mr Bova to have established his claim in relation to overseas CD sales) to allow a further enquiry to be made at least of the profits from the overseas sales of the Livin’ La Dolce Vita CD.

34 As it is, however, this issue does not arise. For the reasons set out below, I dismiss the plaintiff’s claim with costs.

Facts

· Background of the parties

35 From towards the end of 1998 (having performed part-time as a stand-up comedian from mid 1995), Mr Avati has been a full time professional comedian. His comedy routines are, as I understand it, designed to appeal to an audience of persons of Italian (or, more particularly, Calabrian) descent. These comedy routines, it is accepted, involve various jokes or skits which often have punch lines in Italian or involve a play on Italian words or in a Calabrian vernacular or dialect.

36 Prior to becoming a professional comedian, Mr Avati had been employed as a food scientist from 1996-1997 and as a sales representative from 1997-1998. On 3 July 1997, Mr Avati registered a business name “Stand Up and Be Counted Productions” (“SUBC”) and a bank account was at some stage opened in that name. However, it appears that Mr Avati’s business experience prior to meeting Mr Bova was relatively limited. Some of his answers in the witness box reflected that inexperience, in my opinion. For example, Mr Avati’s suggestion that if what was received as revenue went back out in expenses it would not be necessary to include this income in a tax return, ie his understanding that he only had to declare a net result for income tax purposes, and that he did not need to declare any moneys “parked” in the LEM account (T 356; T 367) (which he seemed to assert in the witness box with an air of surprise that this might not be so).

37 Mr Bova, who is some 11 years older than Mr Avati, has had an involvement in the entertainment industry since about 1973. He is (or was at the relevant time) the sole proprietor and operator of a music store by the name of Downtown Music Guitars (“DMG”). There was no evidence to suggest that Mr Bova had had experience in writing comedy scripts or in managing comedy acts prior to meeting Mr Avati. However, Mr Bova did give evidence of considerable experience in the music industry, including performances with various bands. (Mr Bova’s greater experience as a businessman is pointed to by Mr Sirtes to suggest that had Mr Bova in fact understood there to be a partnership between the two he would have taken steps to have it properly constituted and to ensure that there was compliance with obligations in relation to the filing of partnership tax returns and the like.)

· First meeting – November 1998

38 The parties first met at a café in Leichhardt (Café Norton, then operated by a friend of Mr Bova’s, Mr Bomba) in November 1998. Mr Avati was then in his early 20’s. Mr Bova says the meeting was arranged by a Mr Enzo Piazza (a comedian with whom Mr Avati was performing a “due compari” comedy routine at the time).

39 Mr Avati gave evidence, which was largely not disputed, as to his experience as a comedian prior to meeting Mr Bova (although there was some dispute as to how best his comedy routines prior to meeting Mr Bova might be described, how long they lasted, and whether they were promoted as bilingual shows). Mr Russell submits that there was a significant change in the nature of the Parramatta Riverside Theatre show performances (in that these were the first bilingual shows advertised as such; that it was the first time that Mr Avati had stood up on stage by himself without a supporting act in a theatre for a one man show; and that they were longer shows) but he relies on this only to demonstrate the contribution made by Mr Bova to that show.

40 Whatever the nature or extent of the contribution later made by Mr Bova to the development of Mr Avati’s comedy routines, it seems clear (as Mr Sirtes emphasised when addressing the objective likelihood of Mr Avati entering into an arrangement in 1999 of the kind asserted by Mr Bova) that by the time the parties met in late 1998 Mr Avati had already performed comedy routines at various private (Italian) functions (including a 50th birthday party, and some weddings) and various public functions at the Enmore Theatre, Rammazotti’s Pizza Café, and on radio and television (including a radio show “La Dole-Cheque Vita” on community radio station 2RDJ-FM and a performance on “The Footy Show”). It is said that Mr Avati by then had a degree of experience as a comedian, had left his full-time employment in order to pursue a career as a professional comedian, was able to perform bilingual shows in English and in Italian (speaking a Calabrian dialect), and had written sufficient comedy routines to enable him to perform a solo routine on stage (either for over an hour, as Mr Avati contends, or somewhat less than that, as Mr Bova contends). Having performed on both radio and television by then, Mr Avati had also presumably begun to develop a profile as a stand-up comedian in this genre of comedy.

41 There is a dispute as to what was said at the parties’ initial meeting (as, indeed, there was a dispute as to what was said in many of the conversations or meetings to which the parties deposed). Mr Avati says that Mr Bova told him that he was interested in managing entertainment acts and that he wanted to explore this further with Mr Avati. Mr Bova says that Mr Avati said to him that he and Mr Piazza needed “good management”.

42 The conflicting versions of this initial conversation seem to reflect the different perceptions of the parties in this litigation as to their relationship.

43 Mr Avati presents his relationship with Mr Bova as one in which Mr Bova was very anxious (perhaps somewhat desperate) to have a role or to be involved in the management of Mr Avati’s career whereas he (Mr Avati) was cautious of committing himself to any long term or final arrangement (saying that he had been let down before) and regarded it as “his” show or “his” business.

44 Mr Bova, on the other hand, portrays the relationship as one in which Mr Avati was seeking out professional help from him to manage and develop Mr Avati’s career and was looking to make use of his experience and contacts. Mr Bova believes that he played a significant role in making Mr Avati a “star” (perhaps not without some measure of justification, at least insofar as Mr Avati himself credited Mr Bova – in the CD insert to the Livin’ La Dole-Cheque Vita CD which is Exhibit J - with having spent countless hours in the pursuit and realisation of Mr Avati’s dream). Nevertheless, the suggestion that, without Mr Bova, Mr Avati’s career would have gone nowhere is difficult on its face to accept.

45 In any event, it is not disputed that, in November 1998, Mr Avati suggested that Mr Bova come along to see him perform at the Enmore Theatre and that Mr Bova subsequently did so in December 1998. This is the first time that Mr Bova had seen Mr Avati perform a comedy routine (“Stand Up for the Wogs”).

46 Mr Bova considered that there were aspects of the performance which could be improved. (In this regard, Mr Bova says that he told Mr Avati at that time that his “vocals and guitar need a lot of work”, whereas Mr Avati does not recall even having played the guitar in the Enmore Theatre performances.) Mr Bova says that over the period of his relationship with Mr Avati he assisted in the ‘construction’ of jokes, in the ‘choreography’ of Mr Avati’s routine, among other aspects of his performance, including offering advice on ‘stage patter’ and the like, and taught him how to play the guitar. The extent of his contribution in this regard is disputed. For instance, the example he gave of ‘stage patter’ – “I don’t speak alcohol” – is a line with which Mr Avati said he was already familiar (and which hardly seems to involve comedic inspiration) and Mr Avati says he already knew how to play the guitar but seems to accept that on occasion Mr Bova showed him how to play some chords.

47 The material put forward by Mr Avati as to the derivation of various of his jokes, including details as to when they had been performed (in many cases prior to having met Mr Bova), together with the descriptions given by other witnesses (such as Mr Puglisi and Mr Caridi) as to the joke-writing process, suggests to me that the collaboration between the pair was of an informal and ad hoc kind; and that Mr Bova has somewhat exaggerated his contribution to the writing of skits/sketches for Mr Avati’s shows. (Mr Sirtes points out that while Mr Avati has continued his career as a comedian there is no suggestion that Mr Bova has been involved in comedy writing since then.)

· USA/Canada trip – January 1999

48 Having only met in late 1998, it would seem that a friendship quickly developed between the two because in January 1999 Mr Avati travelled to the United States/Canada with Mr Bova and some of Mr Bova’s acquaintances at Mr Bova’s behest (the trip apparently paid for by Mr Bomba but, Mr Bova says, with financial contribution from him to that cost and for the expenses of the trip).

49 During the USA/Canada trip, Mr Avati made some brief comedy performances (in Las Vegas and Vancouver). There is a factual dispute between Mr Bova and Mr Avati as to the circumstances in which those performances were arranged (for example, Mr Bova says he made use of his contacts to arrange a comedy spot at the MGM Grand, Las Vegas; whereas Mr Avati suggests booking this was at his own instigation but that he had asked Mr Bova to make the call as his “manager” – as I apprehend it, so as to appear more established as a performer). There is also a dispute as to whether any payment was received for the Canadian performance.

50 Mr Sirtes pointed to the incongruity of Mr Bova’s portrayal of these events, at least insofar as Mr Bova’s 6 November 2008 affidavit deposes to a conversation in which he says he asked Mr Avati to nominate the “number one” comedy venue in Vancouver (a city where Mr Avati had not previously performed but where Mr Bova himself had friends or relatives and could readily have obtained that information from them).

51 Ultimately, the dispute over what happened during the USA/Canada trip does not seem to go to anything other than, perhaps, the credit of the respective parties (and even then it seems to me to be of little weight). It is not disputed that Mr Avati did accompany Mr Bova and his friends to the USA and Canada in January 1999 (and there is evidence of Mr Bova’s credit card statement showing flights charged in January 1999 to Mr Bova for himself and two friends, though not for Mr Avati, to Los Angeles and hotel or other charges in Las Vegas from 20 to 25 January 1999).

· January/February 1999

52 On their return to Australia, Mr Avati moved into premises at Concord in which Mr Bova was renting from Mr Caridi a ground floor apartment, Mr Avati’s own lease having expired at about that time. There is a dispute as to the circumstances in which Mr Avati came to share Mr Bova’s rented Concord accommodation (which he did until early December 1999). Mr Avati concedes that he had little money at that stage but denies that he moved in due to any difficulties with his parents, as Mr Bova suggests. Nothing turns on this. Mr Avati says he agreed to pay Mr Bova rent or board initially in the sum of $100 per week and later $150 per week, but that such payment was only to be made when he could afford it. Mr Bova seems to accept that he was willing to defer payment for rent or board in order to assist Mr Avati.

53 Mr Avati says that in December 1998 or early 1999 he had a conversation with Mr Bova in which he said he was going to perform at the Melbourne Comedy Festival, probably calling his routine “Livin’ La Dole-Cheque Vita” (which apparently was the name of his radio show). He says that Mr Bova told him that he really wanted to be involved in Mr Avati’s show and said, “I really enjoyed acting like I was your manager [in Canada]”. (If the statement attributed to Mr Bova was in fact made in the same conversation as the one in which Mr Avati referred to the forthcoming Melbourne Comedy Festival, then the conversation must have taken place sometime in or after late January 1999, since there was evidence only of one joint trip to Canada and that was in January 1999.) In this conversation, Mr Avati says he suggested that Mr Bova come down to the Melbourne Comedy Festival to see the show. Mr Bova subsequently did so, at his own expense.

54 The Melbourne Comedy Festival performance was one which Mr Avati said had been arranged in 1998 and was one in which a Mr Lawrence Jackson was involved (apparently as promoter) with Mr Avati. It is not clear to me whether Mr Jackson was the promoter of the overall festival or of Mr Avati’s show as part of that festival. However, nothing turns on this. There is no evidence as to the nature of the arrangement between Mr Jackson and Mr Avati. Mr Bova says that Mr Avati told him he was on a 50/50 split (after expenses) with Mr Jackson. At the conclusion of the festival, a reconciliation sheet was produced, from which it appears that Mr Jackson may indeed have taken a 50% share of the (relatively small) profits from Mr Avati’s performance at that festival. (Exhibit CB 1 to Mr Bova’s 28 February 2006 affidavit is a copy of that reconciliation sheet.)

55 Mr Bova says that before the Melbourne Comedy Festival Mr Avati asked him to help promote the Melbourne show and that he agreed to do so. At least some of the posters used to promote Mr Avati’s performance at the Melbourne Comedy Festival included the words “Lookout Entertainment Management” (“LEM”) (a business name which had previously been registered by Mr Bova). This is the name under which Mr Bova says he and Mr Avati later carried on their partnership business together. However, it was not suggested at the hearing (contrary to Mr Bova’s earlier pleadings) that the two were actually working together in any business sense by this stage, whether in partnership or otherwise, (although Mr Bova says that discussions had taken place in which Mr Avati said he would rather have him (than Mr Bomba) as his manager - para 30 of Mr Bova’s 28 February 2006 affidavit).

56 The use of the LEM name on the Melbourne posters is therefore on any view of the case rather surprising. Mr Avati explains this by saying that this was done to assist Mr Bova to build up his business name as a “goodwill gesture” or a favour to him after the USA/Canada trip. In cross-examination Mr Avati said that (insofar as he had later used LEM letterhead at various times) he did so because he thought it “looked better” to send faxes out under that name. Therefore, I suspect that the use of LEM on some of the Melbourne Comedy Festival posters may have been because Mr Avati considered that the appearance of a promoter standing behind him would enhance his image as a performer (just as he had, earlier in the year, asked Mr Bova to describe himself as his “manager” overseas).

57 Whether or not that be the case, it is an early indication that neither Mr Bova nor Mr Avati was particularly careful or precise in the use of the name LEM or in how the nature of any collaboration between themselves in relation to Mr Avati’s performances was presented to the public or to other parties (something which in my view makes it difficult later to attach much weight to the use made of the LEM name in similar promotional contexts, though in this regard I do distinguish the use of the LEM name on business documents, contracts, invoices and the like).

· April/May 1999

58 By some time around April/May 1999 (Mr Bova puts this date, after much confusion, at April 1999 but at the least after the Melbourne Comedy Festival; Mr Avati puts it in late May 1999 after Mr Bova had returned from a trip to Italy), the parties had a conversation in which they seem to have reached an oral agreement or understanding that they would work together in relation to at least the then proposed series of comedy performances by Mr Avati to take place in Sydney. What that agreement or understanding comprised is the crux of the present dispute.

59 As to the time of this conversation, Exhibit 1 is a copy of a document prepared by Mr Bova in about 2003. Mr Bova said he prepared it for his own recollections or as his own summary (T 101.40-45). These proceedings had, by then, already been commenced. Exhibit 1 lists various dates during the period from May 1999 to 13 July 2000 during which Mr Bova was travelling overseas. Relevantly, these include the period from 30 April 1999 to 20 May 1999; the relevance of this being that it places any conversations in April/May 1999 as being in the period either before 30 April or after 20 May 1999 (since there was no suggestion that the conversations took place by telephone while Mr Bova was overseas).

60 (For what it may be worth, Ex 1 not only supports the inference sought to be drawn by Mr Sirtes that Mr Bova cannot have been present or actively involved as either Mr Avati’s partner or manager during much of the later “Lock Up Your Nonna” national tour, which commenced on 28 April 2000, as Mr Bova was overseas from 2 May to 14 May 2000 and his business involvement with Mr Avati was terminated on 13 July 2000, but it also to my mind indicates a tendency to exaggeration on Mr Bova’s part – since it discloses not only the trips to Italy referred to in his affidavit but also a trip to the USA in February 2000, yet in paragraph 73 of his 28 February 2006 affidavit Mr Bova says “The only time I did not perform constant work for the partnership during the 1999/2000 period was when I travelled to Italy” (my emphasis). The suggestion that Mr Bova worked “constantly” on his joint ventures with Mr Avati is not only inconsistent with Mr Bova continuing his DMG business during that period but with his recognition in April/May 2000 that Mr Avati was unhappy that he was not “pulling his weight”.)

61 Mr Bova says that (in what appears to have been put forward as the key conversation in April/May 1999) Mr Avati asked him to be his manager (28/02/06 affidavit, para 36) and words were said to the following effect:

Bova: "Joe, I'm not prepared to keep putting all this time in unless I can make some money out of it. If you want me to help you then you'll have to make me your manager and share any profits that are made from the act with me. If we do it right, there's not only money to be made from the performances but also merchandising and sponsorship."

Avati: "I'm OK with that. I want you to be my Manager. I can see that how much you've helped me so far. Sounds good. What do you want?"

Bova: "Before we get into how we split any profits, we need to work out what each of us are going to do. The way I see it, you're the comedian and I'm the businessman come entrepreneur. I can continue to help you develop your act and teach you what I know about the business. I can also help save us money because I can do all the lighting, sound and visual technical stuff we need to do to put on the show. With all the people I know in the business I can promote you and get us sponsorships."

Avati: “I can help out with bookings and office work. I enjoy being on the phone and doing all the phone stuff. I've got a good phone manner, so I can help out with booking tours and shows, publicity, and just the everyday stuff that needs to be done. I can do that from home."

Bova: "The problem with that is that you can't be Joe Avati, the star, if you're going to be doing the office work."

Avati: "That's OK, I'll say I'm Joe's brother - Anthony. If there is any sponsorship or money to be discussed I will put them onto you".

62 Pausing there, it is by no means apparent to me that as at April 1999 Mr Bova had been putting a substantial amount of time into the promotion of Mr Avati or Mr Avati’s “show” such as to warrant the comment “I’m not prepared to keep putting all this time in unless …” (my emphasis). On Mr Bova’s own evidence, he had watched Mr Avati perform at the Enmore Theatre and had made some suggestions as to his performance; he had taken Mr Avati with him on the USA/Canada trip (which Mr Avati saw as a holiday and on which any promotion of Mr Avati must surely have been a sideline to Mr Bova’s main reason for travel, since the trip was arranged or planned before any suggestion that Mr Avati accompany Mr Bova and also before the Melbourne Comedy Festival); he had lent the LEM name to some promotional material and had spoken with friends/contacts to encourage them to see the Melbourne show. It is not clear that Mr Bova had contributed in the writing or preparation of the comedy skits or routines for the Melbourne Comedy Festival, but if he had done so that would seem to have been in a social context, as Mr Avati’s housemate, listening to and commenting on jokes or ideas for comedy routines.

63 Nor is it easy to see that Mr Bova had, by then, helped Mr Avati so much in relation to the show (as opposed to providing financial support or assistance both with the US trip and with the rent/board for their shared accommodation) as to warrant a fervent acknowledgement of the kind attributed to Mr Avati in this conversation (“I can see that how much you’ve helped me so far”).

64 Further, what Mr Bova seems to have had in mind (on his version of the conversation) was a role as promoter, albeit one having the title of “Manager”, for which he would obtain a share of the profits from “the act” and perhaps from any “merchandising and sponsorship”; not a partnership as such.

65 Finally, the account given by Mr Bova of the conversation (insofar as it suggested at this early stage that Mr Avati was going to be “Joe Avati, the star”) again indicates in my view a tendency to exaggeration or hyperbole on Mr Bova’s part, since on any view Mr Avati’s career was then in its early days. Mr Bova’s affidavit sets out, for example, various conversations he says he had later during the Parramatta Riverside Theatre shows (para 57 of his 28 February 2006 affidavit) in which he says Mr Avati said, ”Carlo, I’m more than happy to share anything we make together. I was broke when I met you and you are helping me to fulfil my dreams” and, similarly, after Mr Bova’s comment, “Joe, I’m not doing this so you can make yourself a big star without me”, he says Mr Avati said, “I was broke when I met you. If it wasn’t for you I would still be broke I am more than happy to let you have half of what I make. Don’t worry, I will keep to our agreement” (para 37).

66 Mr Bova (somewhat curiously in light of the evidence he adduces from family and friends suggesting that the partnership was often the subject of discussion) says that Mr Avati said to him in that conversation that he was “serious” about keeping quiet about their business as a partnership – a statement which Mr Sirtes suggests is contrived in order to explain the absence of any written record of the alleged partnership. If confidentiality was, indeed, Mr Avati’s concern (which Mr Avati denied), then the conduct deposed to by Mr Bova’s friends or family is hard to explain.

67 Mr Bova says it was agreed that (with the exception of “private” shows, which both parties broadly understood to be shows for which tickets to the public were not on sale; such as private birthday/wedding functions or the like) he and Mr Avati would in partnership carry on the business involved in the production, promotion and exploitation of Mr Avati’s comedy performances on terms and conditions, including that they would share the profits of the business equally; that Mr Bova would be solely responsible for any losses until such time as the business first accrued profits; that Mr Bova would contribute sufficient funds to conduct the business until such time as it accrued profits; and that the assets of the partnership business were to be owned by the parties in equal shares (Second Further Amended Statement of Claim paras 6-8, 12).

68 There was a further term and condition alleged by Mr Bova as to how “private” shows were to be dealt with, paragraph 10 of the Second Further Amended Statement of Claim alleging that Mr Bova was to be entitled to 25% of any profits arising from private shows using material, some of which had been performed by Mr Avati prior to the partnership. None of the evidence suggests that a 25% figure was ever discussed; and Mr Bova seems to accept that the arrangement, as such, for private shows was at most 20%. While the inability to establish one particular alleged term of the partnership agreement is not in my view fatal to the claim that there was a partnership, it does cast doubt as to the reliability of Mr Bova’s recollection of the discussions in general.

69 Mr Avati denies the tenor of the April/May conversation as recounted by Mr Bova. Mr Avati’s version of the conversation is that Mr Bova was keen to invest money in the show and to do the work for Mr Avati’s show, and that when Mr Bova suggested that Mr Avati do the performing and they would share the profits says his response was: “Mate I hear what you’re saying but I don’t want to risk it … I will have a think about what your [sic] saying and we can talk about it some more”. In that regard, Mr Russell poses the rhetorical question as to what “risk” there can have been if Mr Bova was going to fund the show until profits started to be made. Mr Avati accepted in cross-examination that there was no risk for himself in the agreement as pleaded by him (T 319). However, as I understand Mr Avati’s evidence, Mr Avati’s reference to the “risk” he saw at that initial stage of agreeing to Mr Bova’s work proposal seems to have been not so much any financial risk of the shows not being profitable but the risk that the proposed managerial relationship might not (as ultimately seems to have transpired) work out well (a matter which conceivably could have had an impact on Mr Avati’s industry profile or contacts and which ultimately seems to have influenced Mr Avati’s decision not to continue the relationship after July 2000).

70 Mr Avati accepts that it was agreed that he would pay Mr Bova to help in the promotion of the show he was contemplating to perform in Sydney. However, he says that what Mr Bova was to be paid was not a share of profits. Mr Avati says he said:

Look Carlo I am not sure if your [sic] interested or not but I am going to need some help to do this but I'll pay you for it this time. It's going to be a bigger project than Melbourne so what I was thinking would be if you wanted to be involved more than you were in Melbourne, more of a 'hands on' role this time. My name is starting to get out there so I am going to need a manager to represent me soon enough so if you like I could say that you're my manager as well, officially. I will pay you for any work you do and any out of pocket expenses you incur.

and that it would be for a trial period. The response he attributed to Mr Bova (namely, “you will see that I am good mate. You won’t find anyone better to do the job than me” and that “you won’t be disappointed with me”) accords with what I would describe as the effusive manner Mr Bova displayed in the witness box.

71 Mr Avati says that the agreement reached between them (albeit in late May 1999 after Mr Bova returned from Italy) was that Mr Bova would act as his manager for a trial period of 12 months. Mr Avati says that subsequently, in June 1999, they agreed that Mr Bova would be paid $1,000 per week (when funds were available) plus out-of-pocket expenses and a percentage (20%) of any private shows secured for him by Mr Bova from 1 January 2000. Mr Avati denies that there was any discussion as to the two being partners or equal partners or of them splitting the profits.

72 There is nothing (other than Mr Avati’s assertion to this effect) to support the conclusion that there was ever an agreement for payment of a weekly wage to Mr Bova. No document records such an arrangement; no group certificate was issued; I was taken to no evidence of superannuation guarantee levy or workers compensation insurance payments by Mr Avati or the like as might have been necessary had Mr Bova been an employee on such a wage.

73 Again pausing there, an arrangement whereby the show profits would be split on some percentage basis (whether or not 50/50) would not have been inconsistent with the way Mr Avati seems to have undertaken the earlier Melbourne Comedy Festival show with Mr Jackson as promoter. Nor would it seem to me to be so inherently unlikely as to warrant outright rejection as being a perverse state of affairs, at least if the proposed arrangement was for a particular show or defined series of shows. What does seem to me unlikely is that someone in Mr Avati’s position (having only just commenced performing full-time as a professional comedian) would have committed himself to a long term profit sharing arrangement in such an informal fashion (having had no real opportunity at that stage to assess the workability of any business relationship with Mr Bova).

74 Both Mr Bova and Mr Avati seem to have understood that the moneys to fund the Parramatta Riverside Theatre shows (whether under the partnership, on Mr Bova’s version of events (Plaintiff’s Outline of Submissions paragraph 3(a)), or under an informal funding arrangement of the kind Mr Avati suggests was offered by Mr Bova) or to pay Mr Bova’s wages (on Mr Avati’s version of events (Defendant’s submissions paragraph 16)) would be provided by or paid to DMG (ie to or through Mr Bova’s music business). I therefore think no weight can be placed on the fact (if it be the case) that Mr Bova did not personally fund any expenses in relation to the shows (as Mr Sirtes submitted). It seems to be accepted by Mr Avati that DMG provided some sponsorship and that Mr Bova arranged other sponsorship for the first of the “joint” productions.

75 Mr Bova asserts that it was agreed that the partnership would use or carry on business under the LEM name.

76 As to the LEM name, Mr Avati seemed to accept that the parties had agreed (in mid 1999) to carry on in partnership a business of putting on other comedy acts under that name, although he seems to have considered this a separate arrangement to the production of his own shows. He said, in effect, that he was giving priority at this stage to his own show. (If so, this could well explain why little was done formally to establish the partnership (by way of setting up bank accounts, obtaining a tax file number or the like) at that stage.) When cross-examined, the “criteria” for those other ventures were identified by Mr Avati as being “one day” to “manage or put on shows involving comedians and/or musicians. That was the criteria. Except for the Joe Avati personal show, my show, my ideas that I had” (T 265.28).

77 What Mr Avati does not accept is that LEM was the vehicle through which he and Mr Bova carried on a business partnership for Mr Avati’s own acts (T 307.8).

78 Mr Avati explained the use of the LEM name in the context of his own acts (which flies in the fact of his evidence as to their partnership being limited to other comedians’ acts), variously, as being that the name LEM was used in relation to Mr Avati’s own performances as a matter of convenience, or as being a way of “branding” (or advertising) LEM, or as being due to a misunderstanding on his part that LEM was a corporate entity. So, for example, Mr Avati says he regarded the reference to “LEM presents” on ticketing for the Parramatta Riverside Theatre shows in June/July 1999 as branding on “another piece of real estate, if you like” (T 276.32); in other words his view was that the branding of LEM as presenter or promoter of his comedy shows would carry weight and give confidence in him for the booking of his show by venues or promoters, and at the same time build up a profile for LEM to use when and if he and Mr Bova (later) managed other acts.

79 At T 278, Mr Avati said:

The whole reason we did that [said LEM “presents” on the Parramatta Riverside show promotional materials] was because this is a show that hopefully a lot of people were going to come and see. There was going to be lot of advertising associated with it. So what a great opportunity to be able to brand Look Out Entertainment Management. So that when Carlo and I put on other shows, other than the Joe Avati show, Look Out Entertainment Management would have begun to have a bit of a profile. So, it is not misleading, not at that time, sir, because nobody would have known who Look Out Entertainment Management was. We were beginning to try to build it. (T 278.15)

386 On that basis, it was submitted that neither the figures for income disclosed in the 2000, 2001 and 2002 financial statements as income nor the figures for banked earnings in the accounts for those financial years should be accepted as accurate and that they should be taken as something less than the true income derived or received from the Lock Up Your Nonna national tour, sale of the two CDs and the Te Nonna t-shirts.

387 Reliance was also placed on the handwritten reconciliation figures for the national tour shows on 12, 13, and 14 May 2000 (ie before the termination of the working relationship) of which it was said the total income was $21,480, of which $4,180 or 19% was cash (the evidence being that not all cash receipts were banked – T 327.15-24; T393.45 – 394.4).

388 Using the turnover figure for the first quarter of the 2001 financial year (ie July to September 2000) from exhibit M and the quarterly average of the expenses for that financial year, Mr Russell calculated the amount of profit derived from sales of the National Tour shows, the 'Livin' La Dole Cheque Vita' CH and the 'Te-Nonna' t-shirt was $215,604, as being turnover of $316,895.00, expenses of $101,291.00, leaving a profit of $215,604.00, 50% of which for the quarter is $107,802.

389 For the remainder of the 2001 financial year and up to the conclusion of the national tour in July 2001, it was said that the release of the "Live & Unpluggato" CD increased the relevant income and that it was reasonable to infer that the profit derived from sales of the national tour shows, the "Livin' La Dole Cheque Vita" CD, the "Live & Unpluggato" CD and the "Te-Nonna" t-shirt would have been at a rate not less than the profit derived in the first quarter of the 2001 financial year referred to above. Accordingly, the profit for the period of October 2000 to June 2001 was calculated by Mr Russell at not less than $646,812, 3 x $215,604.00 = $646,812.00, 50% of which is $323,406.

390 As to the remainder of the national tour, completed July 2001, and the 2002 financial year, the following calculation was made:

(a) the 2002 financial statements disclose income or turnover for the national tour of $77,058 and for CD sales of $79,526, giving a total of $156,584

(b) in light of the discrepancies outlined above between the financial statements, bank statements and other documents, as well as the significant receipts by way of cash, it is said it is reasonable to adopt a figure of $195,730 as income or turnover for the remainder of the National Tour and sales of CDs, which represents an increase of 25% on the figures referred to in (a);

(c) applying a profit percentage of turnover derived from the calculation in paragraph 388 above, namely 69%, the profit derived from the remainder of the National Tour and sales of CDs of $135,053, was calculated as being 69% of $195,730 ($135,053), 50% of which is $67,526.

391 This calculation entails considerable logical difficulties not least of which being that it assumes constant cash flow in an industry where that may be unlikely and relies upon extrapolation from documents which are themselves contradictory and of dubious reliability. However, in circumstances where Mr Avati has not suggested an alternate methodology and has not put before the court the objective documents from which a more accurate calculation could be made, I would have been prepared to adopt Mr Russell’s submissions as a reasonable means of approximating the relevant amounts.

392 Based on the calculations set out above, the compensation claimed by Mr Bova was said to be not less than $496,734, that representing 50% of the profits said to have been derived from the national tour, the "Livin' La Dole Cheque Vita" and "Live & Unpluggato" CDs and the "Te-Nonna" t-shirt. (That calculation does not include any amount referable to overseas sales of the CDs or any sales in Australia of CDs for the 2003 financial year and subsequently. Nor does it include any sales of the Te-Nonna t-shirt for the 2002 financial year and subsequently.)

393 Had I found a partnership as alleged by Mr Bova, then in light of my finding as to the business opportunity claim, I would have assessed the equitable compensation payable to Mr Bova at 50% of the profit for the first quarter of the 2001 financial year (as calculated by Mr Russell at $107,802), plus interest.

Orders

394 For the reasons set out above, I dismiss the plaintiff’s claim with costs. I will raise with counsel whether any formal declaration or order can usefully or should be made as to the winding up of the more limited partnership which on balance I consider was likely to have been in existence from mid 1999 through to the end of 1999 or early January 2000 in relation to the Parramatta Riverside Theatre shows and the later Enmore Theatre/Club Odeon shows (though a limited partnership of that kind was not expressly pleaded).

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