Ceccon Transport Pty Ltd v Tomazos Group Pty Ltd

[2017] NTSC 25

Ceccon Transport Pty Ltd & Ors v Tomazos Group Pty Ltd [2017] NTSC 25

PARTIES:CECCON TRANSPORT PTY LTD (ACN 009 595 911)

and

CECCON Suzanne Yoko

and

CECCON Antonio

and

TOMAZOS GROUP PTY LTD (ACN 009 618 704)

and

TOMAZOS GROUP PTY LTD (ACN 009 618 704)

and

TOMAZOS TRANSPORT PTY LTD (ACN 159 500 857)

and

CECCON TRANSPORT PTY LTD (ACN 009 595 911)

and

CECCON Antonio

and

CECCON Suzanne Yoko

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:No 108 of 2014 (21451042)

DELIVERED:  31 March 2017

HEARING DATES:  7, 8, 9, 10 & 11 March 2016, 13 & 14 April 2016, 17, 18, 19, 20, 23, 24, 25 & 26 May 2016, and 13 October 2016

FURTHER SUBMISSIONS:            27 October 2016 and 16 December 2016

JUDGMENT OF:  HILEY J

CATCHWORDS:

CONTRACTS – Construction and Interpretation of Contracts – Objective theory of contract – Use of post contractual communications – Identity of contracting party

TORTS – Negligence – Negligent misstatement – Duty of care – Realisation and intention of representor – Nature and purpose of the representation – Reliance by representee – Actionable representation not made

COMPETITION AND CONSUMER LAW – Misleading and deceptive conduct - s 18 Australian Consumer Law - Representations with respect to future matters under s 4 - Trade or commerce

ESTOPPEL – General principles - Estoppel by encouragement - Equitable estoppel not available to assist a person to enforce an agreement that would be void at law and contrary to public policy - clean hands

EQUITY – Fiduciary Obligations - Breach of Fiduciary duty – Fiduciary relationships

TORTS – Interference with contractual and other relations - Inducing breach of contract - Wrongful interference with a contract by unlawful means – Earlier agreement superceded by formal contract.

Competition and Consumer Act 2010 (Cth) Schedule 2, The Australian Consumer Law s 18, s 4

ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65, Air Tahiti Nui Pty Ltd v McKenzie [2009] NSWCA 429; 239 FLR 367, Bill Acceptance Corp Ltd v GWA Ltd (1983) 78 FLR 171; Agaiby (Khalaf) v Darlington Commodities Ltd [1985] ATPR 40-535, Concrete Constructions Group Ltd v Litevale Pty Ltd [2002] NSWSC 670; 170 FLR 290, Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594, Consul Development Proprietary Limited v DPC Estates Proprietary Limited (1975) 132 CLR 373, Cream v Bushcolt Pty Ltd [2004] WASCA 82; ATPR 42-004, Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156; 207 FCR 220, DHJPM Pty Ltd v Blackthorn Resources Pty Ltd [2011] NSWCA 348; 83 NSWLR 728, Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371, Davies v Nyland (1975) 10 SASR 76, Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640, Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241, Henville v Walker [2001] HCA 52, Hospital Products Limited v United Stated Surgical Corporation (1984) 156 CLR 41, Johnston v Brightstars Holding Company Pty Ltd [2014] NSWCA 150, Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154, Pilmer v The Duke Group Limited (in liq) (2001) 207 CLR 165, Ricochet Pty Ltd v Equity Trustees Executors & Agency Co Ltd (1993) 41 FCR 229, San Sebastian Pty Ltd v The Minister [1986] 162 CLR 340, S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637, Tepko Pty Ltd v Water Board (2001) 206 CLR 1, Territory Sheet Metal Pty Ltd & Ors v ANZ Group Ltd [2009] NTSC 31, The Commonwealth v Verwayen (1990) 170 CLR 394, Thomson, Re; In re Thomson v Allen [1930] 1 Ch 203, Tomko v Palasty [2007] NSWCA 258, Traffic Calming Australia Pty Ltd v CTS Creative Traffic Solutions & Ors [2015] VSC 741, referred to

Lord Goff and Gareth Jones Law of Restitution (Sweet & Maxwell Ltd, 4^th Ed, 1994) 648

REPRESENTATION:

Counsel:

Plaintiff:B Ilkovski

Defendant:M Crawley

Solicitors:

Plaintiff:Clayton Utz

Defendant:De Silva Hebron Barristers & Solicitors

Judgment category classification:    B

Judgment ID Number:  Hil1703

Number of pages:  208

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Ceccon Transport Pty Ltd & Ors v Tomazos Group Pty Ltd [2017] NTSC 25

No. 108 of 2014 (21451042)

BETWEEN:

CECCON TRANSPORT PTY LTD (ACN 009 595 911)

First Plaintiff

AND:

CECCON SUZANNE YOKO

Second Plaintiff

AND:

CECCON ANTONIO

Third Plaintiff

AND:

TOMAZOS GROUP PTY LTD (ACN 009 618 704)

Defendant

AND:

TOMAZOS GROUP PTY LTD (ACN 009 618 704)

First Plaintiff by Counterclaim

AND:

TOMAZOS TRANSPORT PTY LTD (ACN 159 500 857)

Second Plaintiff by Counterclaim

AND:

CECCON TRANSPORT PTY LTD (ACN 009 595 911)

First Defendant by Counterclaim

AND:

ANTONIO CECCON

Second Defendant by Counterclaim

AND:

SUZANNE YOKO CECCON 

Third Defendant by Counterclaim

CORAM:    HILEY J

REASONS FOR JUDGMENT

(Delivered 31 March 2017)

INTRODUCTION

Background

Pleadings and submissions

Parties and Witnesses

PLAINTIFFS’ CLAIMS

Outline of Plaintiffs’ claims

A.    Loan Agreement

Relevant facts

Discussions in November 2010 about a loan of $2 million

Discussions in April 2011 regarding the $1 million loan

Oral evidence

Legal principles

Who is the true creditor?

Interest payable under the Loan Agreement

Transfer of a unit

Other contentions

B.    Materials Sale and Supply

C.    Alternative November 2011 Agreement

Stockpiles

Tomazos use of the stockpiled building materials

Conclusions

Sale of machinery products

The agreement

Tomazos use of the miscellaneous machinery products

Genset Hut

Fuel Bund Wall

D.    Supply and Fit Agreement

E.    Supply and Haulage Agreement

F.     Validation and Accessibility Agreement

Conclusions / Findings

COUNTERCLAIMS

Outline of counterclaims

Pleadings and submissions

Tomazos’ summary of contentions

Ceccon’s response

The Statements

Factual background to the primary claims

Statements and Conduct relied upon

Tomazos contentions

MJHJV

Boral

The evidence concerning the actionable Statement

Submissions

Consideration

Negligent misstatement

Allegations

Legal principles

No relevant duty of care

Reliance by Tomazos upon a promise never to re-enter the industry

Conclusions concerning negligent misstatement

Misleading and deceptive conduct

Future matter

Trade or commerce

Reliance

Estoppel

Breach of Fiduciary Duty

Pleading

Submissions

Consideration and conclusions

Interfering with Tomazos’ cartage contract with Boral

What is the claim?

Consideration

Jenkins Road Validation and Accessibility Agreement

Set off

Conclusions and disposition

INTRODUCTION

Background

1. Antonio (Tony) Ceccon and Antonios (Tony) Tomazos had been good friends since the 1970s and began doing business with each other soon after that.  Following some serious health issues towards the middle of 2011, Tony Ceccon decided to close down his successful transport business.  He offered to assist Tony Tomazos and his son John Tomazos to move into a similar business.  Most of this litigation relates to the events that followed that.

2. Tony Ceccon was born in Italy in 1940 and immigrated to Australia in 1970.  He settled in Darwin in about 1971 and started a company, Ceccon Transport Pty Ltd (Ceccon Transport).  He is the director and principal of Ceccon Transport.  The second plaintiff, Suzanne Ceccon (Ms Ceccon) is Tony Ceccon’s wife, and is the lessee of various mining tenements for which Ceccon Transport was the nominated operator.

3. Tony Tomazos and his brother Michael Tomazos set up their own commercial and residential construction business, Tomazos Brothers, soon after Cyclone Tracy (December 1974).  Tony Tomazos is a director and the principal of the defendant company, Tomazos Group Pty Ltd (Tomazos Group).  His son, John Tomazos, is the General Manager of Tomazos Group and the principal of Tomazos Transport Pty Ltd (Tomazos Transport) a company incorporated on 16 July 2012. 

4. Ceccon Transport’s main business was extracting, transporting and supplying building materials, such as gravel, sand, topsoil, select fill, rock and rubble.  The materials were extracted from various mining sites in and around Darwin and supplied to third parties, usually for use in constructing commercial and residential buildings or roads in and around Darwin.  Some of those sites, including those referred to in these proceedings as the Gunn Point Road site, the Scrubby Creek site and the Jenkins Road site, were the subject of mining tenements held by Ms Ceccon. 

5. Ceccon Transport used to sell building materials to Tomazos Brothers from the late 1970s until 2001 when Michael Tomazos died, and continued to supply materials to Tomazos Group from about March 2009 following an approach from Tony Tomazos.

6. In addition to extracting and removing materials from pits on the tenements held by Ms Ceccon, Ceccon Transport extracted material from pits owned by other contractors and transported the material for those contractors.  One of the main contractors was Boral (Qld) Pty Limited (Boral), which had pits near the Gunn Point Road site.  Boral allowed Ceccon Transport to set up its site office and yard on land owned by Boral at the Gunn Point Road site.

7. In about October 2010 Tony Tomazos contacted Tony Ceccon and requested and discussed the terms of a loan of $2 million which Tomazos Group needed in order to purchase a property at Harvey Street, which it proposed to develop.  That loan did not proceed, but in April 2011 one or other of the plaintiffs agreed to, and did, lend $1 million to Tomazos Group.  That loan agreement is the subject of the plaintiffs’ first claim in this proceeding, referred to as the Loan Agreement.

8. In about June 2011 Tony Ceccon became aware of some serious medical issues and decided to wind back his involvement in the business.  Following discussions with Boral, and also with Tony and John Tomazos, he ceased operating the transport business at the end of October 2011.  On about 1 November 2011 Tomazos Group took over much of that business, occupied the yard at Boral previously occupied by Ceccon Transport, and engaged some of Ceccon Transport’s staff.

9. Discussions and negotiations, mainly between Tony Ceccon and Tony and John Tomazos, included Tomazos Group taking over the work which Ceccon Transport had been doing for Boral, purchasing materials that had been extracted and stockpiled by Ceccon Transport, and purchasing machinery and other items owned by Ceccon Transport.  The plaintiffs’ claims for monies owing in respect of the stockpiled materials, and for machinery and other items, are dealt with under the heading Alternative November 2011 Agreement.

10. Some of the other claims made by the plaintiffs have now been accepted, others have been abandoned, and a few minor claims remain.

11. The defendant, Tomazos Group, and a related company, Tomazos Transport, have counterclaimed against the plaintiffs.  The counterclaimants contend that the damages to which they are entitled under their counterclaim exceeds the amount which is payable to the plaintiffs.  The main basis of the counterclaim is their allegation that prior to Tony and John Tomazos setting up their transport business Tony Ceccon told them that he would never be re-entering the transport industry.  They contend that Tony Ceccon began to get back into the transport industry in about March 2012, as a result of which they suffered loss.  They rely upon various causes of action including negligent misstatement, misleading and deceptive conduct and estoppel.

12. The counterclaimants also contend that by re-entering the transport industry Tony Ceccon breached fiduciary duties owed to them, causing them to suffer damage and to be entitled to the profits wrongly derived by the plaintiffs.  They also claim that the plaintiffs interfered with the performance by Boral of a preferred provider agreement which they had with Boral for the provision of general cartage work.

13. The counterclaimants also allege breaches of an agreement referred to by them as the Jenkins Road Pit Agreement. They also claim a right of set-off in relation to some sands which they say they should have been given in exchange for a float trailer.

Pleadings and submissions

1. The proceedings were instituted by Writ filed 31 October 2014.  The latest versions of pleadings[1] were filed and exchanged following the completion of the evidence and prior to final addresses.  Detailed written submissions were filed and exchanged[2] and were the subject of a number of questions from the Court on 13 October 2016.  Further material was received from the parties following questions raised by the Court.[3]

   Parties and Witnesses

2. Many of the matters in dispute require my assessment of the credibility of the main witnesses and an interpretation of the recording of various agreements, whether made contemporaneously or not, and whether made unilaterally or acknowledged by both parties.

3. Tony Ceccon and Tony Tomazos have many common characteristics.  Both are immigrants from the Mediterranean, with English not their first language.  Both have established successful businesses and, by virtue of their similar cultural background, both have similar characteristics of pride, desire for the perception of generosity and concern over reputation.  A consequence of this is that both tended to eschew written agreements and favour oral agreements.  Both pride themselves on their generosity and would seek to avoid honour debts.

4. Both Suzanne Ceccon and John Tomazos are more commercially sophisticated in relation to contemporary ways of conducting business than Tony Ceccon and Tony Tomazos, for example in documenting things and using modern communication methods such as by use of facsimile machines and emails.  Ms Ceccon was inclined to honour and respect the wishes of her husband and John the wishes of his father.

5. As Tomazos’ counsel concede, while John would honour arrangements made by his father, if the terms of the arrangements were vague he would interpret them in a way which best suited the interests of their business.  If payment terms were indefinite or payment was not pressed, payment would be deferred in favour of other business uses for available funds.

Antonio Ceccon

1. The principal witness for the plaintiffs was Mr Tony Ceccon.  In the main, the relevant negotiations were conducted and agreements were made by him, generally in the absence of any supporting witness.  

2. Mr Ceccon’s evidence was by affidavit, answering affidavit, and oral evidence in cross examination.  His cross-examination extended over three and a half days, two days during the first tranche of the hearings in March and the other one and a half days during the April session.

3. I accept Tomazos’ counsel’s contention that in a number of aspects, his oral evidence not only differed from his affidavits, but was directly inconsistent and contradictory to them.  The time span between the first affidavit and the last of his oral evidence was approximately four months.  There was no evidence of a change in Mr Ceccon’s capacity during that time.  Counsel submitted that it is not possible to assume the accuracy of Mr Ceccon’s affidavit evidence in preference to oral testimony.  His evidence should be viewed as an unreliable basis for findings of fact in the absence of independent supporting evidence.

4. Counsel for the plaintiffs agrees that Mr Ceccon found giving evidence confusing and alienating.  This was compounded by communication and hearing difficulties.  Counsel also concedes that at times during the hearing Mr Ceccon became cantankerous and non-responsive. 

5. In reply, Tomazos’ counsel submits that Mr Ceccon’s oral evidence was given in a truculent, suspicious manner.  This highlights the significance of admissions against interest when made, supporting the direct evidence of the Tomazos witnesses.  Counsel rejects the contention that Mr Ceccon found giving evidence confusing or alienating.  He was simply an uncooperative witness.  If his admissions were confusing (which Tomazos denies), then the plaintiffs had the opportunity of dealing with that in re-examination, but failed to do so.  

6. Mr Ceccon has a very strong accent which made it difficult to hear and comprehend everything that he said when giving his evidence.  Indeed those who attempted to transcribe his evidence had such difficulty doing so that the parties later had to listen to the audio tapes and agree on an amended transcript.

7. Mr Ceccon’s two affidavits were made with the assistance of an interpreter who was able to converse with him in Italian.  At the start of the hearing I upheld an objection by the Tomazos parties to Mr Ceccon giving his evidence through an interpreter.  However I indicated that if it appeared at any stage that he needed such assistance I would permit that to occur.  Accordingly an interpreter was sworn in and did indeed provide valuable assistance at various stages.

8. There were several occasions during his cross-examination when Mr Ceccon gave answers which appeared inconsistent with what he had said in one or other of his affidavits.  On many of those occasions he provided these answers reasonably spontaneously without any suggestion that he did not understand the question or required the assistance of the interpreter.  He maintained his answers and embarked upon non-responsive discursions, even when contrary evidence in an affidavit of himself or his wife was put to him.

9. A number of his other answers were clearly wrong.  For example he denied making handwritten notes on documents, although the writing was clearly his.  Examples include the writing of registration numbers on a list of trucks that were being sold through Ritchie Brothers in Brisbane and writing of quantities and calculations on a copy of the survey reports provided by Earl James & Associates (EJA). 

10. Mr Ceccon appeared very reluctant to answer a question if he thought that it would harm his position.  He was also very keen to volunteer, and in some cases repeat, a lot of information that was critical of one or other of Tony and John Tomazos, but was not responsive to the question being put.

11. Mr Ceccon still has a number of health issues, mainly following a stroke in 2014.  Although he was assisted by one or more hearing devices and an interpreter, he frequently appeared to have difficulty listening, hearing, understanding and properly concentrating on many of the questions that were asked of him.  This is understandable particularly for a person of his age who suffered a stroke in 2014 and who also appears to have difficulty understanding the nuances and subtleties of questions put to him in English.  Although his cross examination took much longer than it should have as a consequence of his reluctance and inability to answer questions put to him, it must have been tiring and frustrating for him.  Indeed there were occasions where it was plain that he was simply agreeing to propositions put to him without properly thinking them through, in order to speed up the process.  By the time his cross-examination ended, I doubt that there would have been much point in his counsel attempting to re-examine him.

12. For the most part I think that Mr Ceccon’s affidavit evidence is more reliable than his oral testimony.  It was prepared with the assistance of an interpreter and in circumstances where he would have been far more comfortable than he was in the witness box. 

Suzanne Ceccon

1. Ms Ceccon was a director of Ceccon Transport between 1988 and 1997 and was employed by Ceccon Transport at all material times as Office Manager.  She was responsible for managing the financial side of the business, under the direction of Tony Ceccon.  Amongst other things, she prepared and issued quotes, dockets, purchase orders and invoices.  See also managed Ceccon Transport’s contracts such as those with Boral.  She was the holder of extractive mining permits and mineral authorisations for the Gunn Point Road site, the Scrubby Creek site and the Jenkins Road site.

2. Tomazos’ counsel contends that Ms Ceccon’s evidence was mainly based upon her understanding of matters reported to her by Tony Ceccon and her recording of them.  By that fact alone, as well as her obvious attempts to support her husband’s evidence wherever possible, there should be reservations about her evidence.  Counsel concedes that Ms Ceccon admitted errors, but only when forced to do so.  The evidence requiring those concessions and admissions was clear.  She tried to flavour her evidence to support the evidence of her husband, even if he was wrong.  Her evidence regarding the authorship of the letter of 5 December 2012 is a prime example.[4] Having heard the evidence of Tony Ceccon that the letter was drafted by Ms Ceccon, she renounced her affidavit in favour of supporting his version, until she was compelled to admit her oral evidence was wrong, and her affidavit evidence was correct.

1. I do not think that this was a deliberate attempt to mislead the Court.  I agree with Ceccon’s counsel that Ms Ceccon gave her evidence in clear and direct terms.  She conceded matters where concessions were necessary and admitted to any errors as necessary.  She was not evasive.  She was an honest and reliable witness. 

Antonios Tomazos

1. Counsel for the plaintiffs submits that Tony Tomazos’ role is as the family patriarch and that he had very little knowledge of the critical claims sought to be brought by the company of which he is the directing mind, particularly in relation to the counterclaim.  Counsel for Tomazos submits that Mr Tomazos genuinely attempted to assist the Court, but accepts that there may have been instances where his recall of the sequence of events was inaccurate. 

2. I think these are fair comments and concessions.  Mr Tony Tomazos did his best to provide his evidence honestly.  He continued to be compassionate with Tony Ceccon in relation to his health issues.  However his memory was lacking in relation to important matters of detail, including dates and who said what.  I have no doubt that Mr Tomazos was upset when he heard that Mr Ceccon was re-entering the trucking business.  No doubt these concerns were conveyed to his son John and in turn they affected John’s attitude towards the plaintiffs and Tony Ceccon in particular.

John Tomazos

1. Ceccon’s counsel contends that John Tomazos’ evidence was significantly coloured by hindsight reasoning.  He was dogmatic about the effect of Mr Ceccon’s inducement to enter into the transport business.  However, when he had the opportunity to complain or confront Mr Ceccon about this very issue, he did not.  In fact, Tomazos Group competed for many years with Ceccon Transport after its re-entry into the transport and extractive mining industries without complaint.  The only time a complaint was made was in these proceedings in response to claims for the payment of debts. This tells significantly against his credibility on the central issue in the counterclaim.

2. Tomazos’ counsel submits that despite the passage of time, John’s recall was relatively good.  As a general statement, his evidence should be accepted as a reliable basis for findings of fact.  In response to the comments of Ceccon’s counsel noted above, counsel submits that John’s evidence was clear, firm on issues about which he was confident, and credible.  The repeated references in the plaintiffs’ submissions suggesting the entire counterclaim effectively was a matter of recent invention, fails to understand a realistic approach of business people: there is no point in complaining if nothing will be achieved by doing so, avoid litigation if possible, but if it is forced upon you, then respond appropriately.

3. I do think that his memory and evidence was tainted by a number of things, in particular his perception of the events that occurred once he became aware of Ceccon’s re-entry into the cartage and supply business in the second half of 2012 and its possible impact upon the Tomazos trucking business, and the fact that the plaintiffs were proceeding with legal action to recover the balance of the loan monies and other amounts outstanding.

Other witnesses

1. Counsel for Tomazos properly conceded that Matthew Tomazos was clearly a strident supporter and defender of his family and that his evidence in some aspects was of limited assistance to the Court.  I agree with Ceccon’s counsel that his evidence adds very little and that nothing much turns on it. 

2. Both parties seem to accept, and I agree, that Ron Preston was an honest witness.  However counsel for Tomazos contends that his evidence should be viewed from the perspective of him having been a long-term and loyal employee of Ceccon (even when subsequently employed by Tomazos), which may have flavoured his recollection of events.  I have no reason to doubt the reliability of his evidence.

3. I agree that Keith Joy generally gave his evidence in a direct, clear and cogent manner.  He was not evasive. 

4. Counsel for the plaintiffs contends that Mr Hartell’s evidence was of limited utility for a number of reasons, and that he seemed eager to assist Tomazos because of the longstanding commercial dealings he has had with them.  Tomazos’ counsel submits that his evidence was significant in refuting Tony Ceccon’s evidence regarding the circumstances of Tomazos obtaining the Boral work, and confirmatory of the evidence of Tomazos witnesses.  For reasons that I later express I found Mr Hartell’s evidence unconvincing and of little use.

5. Both of the witnesses who were involved with the MJHJV, Mr Neil Halligan and Mr Tim Kennedy, were independent of either party.  They gave their evidence directly and clearly and are accepted as witnesses of truth. 

   PLAINTIFFS’ CLAIMS

   Outline of Plaintiffs’ claims

6. The Plaintiffs (the Ceccon parties) summarise their claims as follows:[5]

   (a)$780,696.67 (as at 26 August 2015) being the balance of principal and interest under the Loan Agreement and, in addition, specific performance of an agreement to transfer a unit in a development being undertaken by Tomazos Group as pleaded in paragraphs 4 to 15 of the Statement of Claim;

   (b)$322,886.79 (inclusive of GST) owed under the Materials Sale and Supply Agreement pleaded in paragraphs 16  to 19 of the Statement of Claim;

   (c)under the November 2011 Sale Agreement and the Alternative November 2011 Sale Agreement or Arrangement: $445,871.80 (inclusive of GST) owed for stockpiles; $60,853.98 unpaid for the purchase of miscellaneous products; $660.00 for replacements costs for a genset hut; and damages of $10,000.00 for the balance payable for the costs of constructing a wall around a fuel tank; as pleaded in paragraphs 24 to 31 of the Statement of Claim;

   (d)$2,500.00 (inclusive of GST) owed for the supply and fitting of hungry boards under the Supply and Fit Agreement pleaded in paragraphs 33 to 37 of the Statement of Claim;

   (e)$18,503.23 (inclusive of GST) owed as reimbursement under the Supply and Haulage Agreement pleaded in paragraphs 38 to 41 of the Statement of Claim;

   (f)$142,168.08 (inclusive of GST) owed for royalties under the Validation and Accessibility Agreement as pleaded in paragraphs 42 and 44 to 47 of the Statement  of Claim;

   (g)Interest; and

   (h)Costs.

   A.  Loan Agreement

7. Paragraphs 4 to 10 of the Statement of Claim plead as follows:

   4.On or about 3 April 2011 Tomazos requested that Ceccon loan $1,000,000.00 to Tomazos to enable Tomazos to urgently settle the purchase of a property at Harvey Street, Darwin in the Northern Territory (Property).

   Particulars

   The request was oral and was made by Tony Tomazos for and on behalf of Tomazos to Tony Ceccon at a meeting which Mr Ceccon attended at the request of Mr Tomazos on or about 3 April 2011 at the offices of Tomazos in Winellie in the Northern Territory.  At the meeting Mr Tomazos was upset and said words to Mr Ceccon to the effect that Tomazos would lose the property development at Harvey Street, Darwin if it could not come up with $1,000,000.00 in 24 hours.

   5.In response to the request in paragraph 0 above, on or about 3 or 4 April 2011 Ceccon, or alternatively Tony Ceccon or Suzanne Ceccon, or Ceccon as agent for either Tony Ceccon or Suzanne Ceccon, entered into a loan agreement with Tomazos whereby Ceccon, or alternatively Tony Ceccon or Suzanne Ceccon, agreed to make a loan of $1,000,000.00 to Tomazos for a term of three (3) years to enable Tomazos to settle the purchase of the Property (Loan Agreement).

   6.There were terms of the Loan Agreement inter alia that:

   (a)Ceccon, or alternatively Tony Ceccon or Suzanne Ceccon, would loan Tomazos $1,000,000.00 for a term of three (3) years;

   (b)Tomazos would repay the principal amount of the loan at the expiry of the term;

   (c)Tomazos would pay interest on the principal amount of the loan compounded annually at the rate of:

   (i)  7% per annum for the first year of the term, 8% per annum for the second year of the term and 9% per annum for the third year of the term; or alternatively

   (ii) 8% per annum for the first year and the second year of the term and 9% per annum for the third year of the term; and

   (d)in consideration of the urgency and risk associated with the loan Tomazos would transfer to Ceccon, or alternatively Tony Ceccon or Suzanne Ceccon, freehold title in an apartment, to be selected by Ceccon, or alternatively Tony Ceccon or Suzanne Ceccon, in a unit development to be constructed by Tomazos at the Property for $nil consideration.

   Particulars

   The terms of the Loan Agreement are partly oral and partly written. 

   (a) Insofar as they are oral, they comprise and/or are evidenced by the discussions which took place between Tony Tomazos and Tony Ceccon at the meeting on 3 April 2011.

   (b) Insofar as they are in writing, they comprise and/or are evidenced by the document entitled "Agreement" dated 4 April 2011 which was signed on behalf of Ceccon and on behalf of Tomazos on or about 24 June 2011.

   7.The document entitled "Agreement" dated 4 April 2011 was agreed by the parties in the belief that it embodied the terms of the Loan Agreement pleaded in paragraph 0 above, but does not in fact embody all of those terms.

   Particulars

   The document entitled "Agreement" dated 4 April 2011 does not contain or embody all of the agreed terms pleaded in paragraph 6(c) above.

   8.In the premises of the preceding paragraph, as at the time the parties signed the document entitled "Agreement" dated 4 April 2011, the parties mistook its effect.

   9.The parties intended the Agreement dated 4 April 2011 to conform to the matters agreed by them as pleaded in paragraph 6(c) above.

   10.In accordance with the terms of the Loan Agreement, Ceccon, or alternatively Tony Ceccon or Suzanne Ceccon, advanced the principal amount of the loan to Tomazos as follows:

   (a)on 4 April 2011 - $500,000.00; and

   (b)on 5 April 2011 - $500,000.00.

8. In response to paragraphs 4 to 6 of the Statement of Claim the defendant, Tomazos Group says:

   4.Tomazos denies the matters alleged in paragraph 4 and says that an initial request for a guarantee of loan funds was made by Tony Tomazos (Tony) on behalf of Tomazos:

   a.In or about November 2010;

   b.To Antonio Ceccon (Tony Ceccon) on his own behalf and

   c.As at 3 April 2011 Tony was not upset nor did Tomazos require a loan from Tony Ceccon to avoid losing its development at the Property.

   5.In relation to the matters alleged in paragraph 5, Tomazos denies the matters alleged and says:

   a.After the initial offer of a loan of $2,000,000, Tony Ceccon ultimately offered to loan $1,000,000, which Tony and John Tomazos (John) accepted on behalf of Tomazos;

   b.The loan agreement comprising the ultimate offer and its acceptance was made orally between Tony and John on behalf of Tomazos and Tony Ceccon on his own behalf on or about 3 or 4 April 2011, to assist Tomazos to settle the purchase of the Property but no rate of interest was discussed or agreed;

   c.Due to his expressed belief that he was suffering a terminal illness, at the request of Tony Ceccon the oral agreement was subsequently included in a letter dated 4 April 2011 but prepared by John and signed by Tony and Tony Ceccon on 24 June 2011 and incorporated a rate of interest volunteered by Tomazos.

   6.In relation to the matters alleged in paragraph 6, Tomazos:

   a.Save that it says the loan was from Tony Ceccon personally, admits (a);

   b.Admits (b);

   c.Denies the matters alleged in (c) and says that the loan

   i.   was interest free for the first year,

   ii   accrued 8% interest in the second year; and

   iii  accrued 9% interest in the third year;

   d.Denies that the matters alleged in (d) were a term of the loan but says

   i.   it was offered to Tony Ceccon as a gift without consideration;

   ii.  alternatively,  any such term is void for uncertainty;

   iii. in the further alternative, any such term is unenforceable pursuant to section 62 of the Law of Property Act (NT) as attempting to convey an interest in land without adequate note or memorandum.

9. Tomazos Group denies the allegations in paragraphs 7, 8 and 9 of the Statement of Claim. It admits the allegations in paragraph 10 but says that the payments were from Tony Ceccon, not from Ceccon Transport or Suzanne Ceccon.

10. The document dated 4 April 2011,[6] was signed by Tony Ceccon and Tony Tomazos on 24 June 2011 (the 24 June 2011 document).  It was entitled “Agreement” and was as follows:

    This is to confirm that Ceccon has provided to Tomazos the amount of $1,000,000. (One million dollars).  The monies are to be paid back in 3 years.  Tomazos will pay interest to Ceccon at 8% per annum for the 2^nd year and 9% per annum for the 3^rd year.

    Once the development at Harvey St has commenced Ceccon is to choose an apartment in the development in which Ceccon will be given freehold title once the development is completed.

11. It is not in dispute that:

    (a)$1,000,000.00 was loaned to Tomazos Group on or about 4 April 2011; $500,000.00 on 4 April and $500,000.00 on 5 April 2011;

    (b)the principal and interest was repayable within three years;

    (c)when repayment of the loan became due on 4 April 2014, Tomazos Group did not repay any of the principal or any amount for interest; and

    (d)$600,000.00 of the principal has been repaid by $100,000.00 instalments on 17 September 2014, 3 November 2014, 1 December 2014, 6 January 2015, 4 February 2015 and 4 March 2015.

12. The plaintiffs allege that Tomazos Group is in breach of the Loan Agreement by failing to repay the balance of principal and interest owing on the loan and refusing to transfer freehold title of a unit in the Harvey St development, now known as the ‘Tech-1’ development.[7] 

13. In response to this allegation Tomazos Group pleads that on or about 19 September 2014 an oral agreement was made that the principal together with interest (including additional interest) agreed at $271,376.00 would be paid to Tony Ceccon by instalments of $100,000.00 per month between September 2014 and August 2015 with a final payment of $71,376.00 in September 2015.[8]  

14. The oral agreement is said to be evidenced by a letter dated 19 September 2014 addressed to Tony and Suzie Ceccon on the letterhead of Tomazos Group signed by John Tomazos in his capacity as General Manager (the 19 September 2014 letter).[9]  That letter stated:

    I hereby commit to make the following payments as repayment in full of $1,000.000.00 loan and associated interest of $271,376.00

    Principal repayments:

    Month   Amount

    
    

    Sept 2014   $100,000.00 (Paid)

    
    

    Oct 2014   $100,000.00

    
    

    Nov 2014   $100,000.00

    
    

    Dec 2014   $100,000.00

    
    

    Jan 2015   $100,000.00

    
    

    Feb 2015   $100,000.00

    
    

    Mar 2015   $100,000.00

    
    

    Apr 2015   $100,000.00

    
    

    May 2015   $100,000.00

    
    

    Jun 2015   $100,000.00

    
             

    $1,000,000.00

    Interest payments:

    Jul 2015  $100,000.00

    
    

    Aug 2015  $100,000.00

    
    

    Sep 2015   $71,376.00

    
      

    $271,376.00

15. Tomazos Group concedes that it is still liable to repay the $400,000.00 principal remaining and the interest of $271,376.00.

16. As to the apartment in the Harvey Street development, it is not in dispute that: the Harvey Street development is a staged development; Stage 1 of the development (now referred to as ‘Tech-1’) commenced some time ago and is completed; and Tomazos Group has commenced to sell units in ‘Tech-1’ and certificates of title for units have issued to Tomazos Group.  However, as to the transfer of a unit to Ceccon Transport, (or alternatively Tony Ceccon or Suzanne Ceccon), Tomazos Group:

    (a)denies that the transfer of a unit in the Harvey Street development is a term of the Loan Agreement, and thus denies the failure to transfer the unit is a breach of the Loan Agreement;

    (b)says that the unit was offered to Tony Ceccon as a gift without consideration; and

    (c)in the alternative, says that if the transfer of a unit in the Harvey Street development is a term of the Loan Agreement, the term is:

    (i)   void for uncertainty; and

    (ii) unenforceable pursuant to section 62 of the Law of Property Act 2000 (NT) as attempting to convey an interest in land without adequate note or memorandum.[10]

17. On 9 March 2016, Tomazos Group produced a document which became Exhibit P11.   That document disclosed that a number of apartments in the ‘Tech-1’ development had not been sold.  On 24 May 2016, Clayton Utz, on behalf of the Ceccon parties, wrote to De Silva Hebron, the lawyers for Tomazos Group, in these terms:

    The purpose of this letter is to notify your client that, in accordance with the Loan Agreement the subject of this proceeding, Ceccon, alternatively, Mr Ceccon or Mrs Ceccon, chooses the following apartment in the development known as Tech-1 Harvey Street Darwin by reference to the apartment numbers and prices described in the price list dated March 2016:

    1. apartment 901, with a listed price of $665,000; alternatively

    2. if apartment 901 has been sold as at the date of this letter, then apartment 801 with a list price of $650,000; alternatively

    3. if apartments 901 and 801 have been sold as at the date of this letter, then apartment 809 with a listed price of $650,000.

    Could you please let us know in writing by 12.00 noon on 25 May 2016 if none of those apartments are available for selection.[11]

18. Tomazos Group admits that it received that letter, but denies its legal effect in these proceedings because:

    (a)the transfer of a unit in the Harvey Street development is not a term of the Loan Agreement, and if a term, it is void for certainty or unenforceable pursuant to section 62 of the Law of Property Act (NT);

    (b)the letter did not exist at the commencement of these proceedings and cannot be relied on for the purposes of section 62 of the Law of Property Act (NT).[12]

19. Following from the above discussion, the issues in relation to the Loan Agreement are these:

    (a)who is the true creditor?

    (b)what is Tomazos Group’s liability to pay interest under the Loan Agreement?

    (c)is the transfer of a unit in Tomazos Group’s development at Harvey Street a term of the loan agreement?

    (d)if the transfer is a term of the Loan Agreement, is the term void for uncertainty?

    (e)if not void for uncertainty, is the Loan Agreement a sufficient note or memorandum for the disposition of property?

    (f)what legal effect, if any, does the letter from Clayton Utz of 24 May 2016 have?

    Relevant facts

    Discussions in November 2010 about a loan of $2 million

20. In 2010 Gratis Pty Ltd (Gratis) (the former name of Tomazos Group Pty Ltd) was in the process of purchasing land at Harvey Street Darwin for $3.2 million.  Gratis intended to develop the land by constructing units on it.  Shortly before settlement was due its proposed financier declined to provide the necessary funds and Gratis had a cash flow problem pending the completion of another development in Palmerston.  Tony Tomazos was aware that Tony Ceccon had funds and approached him for assistance.  Tony Ceccon offered to lend Gratis $2 million.  Both parties engaged lawyers to document the arrangement.

21. After refreshing his memory from documents produced on discovery Mr Ceccon said that that arrangement included terms that:

    (a)interest be paid at the rate of 7% for the first year, 8% for the second year and 9% for the final year of the loan;

    (b)security was to be provided by Gratis by way of a second mortgage over the Harvey Street property;

    (c)guarantees were to be provided from Tony Tomazos and his wife Despina and/or their Trust company;

    (d)a top floor unit in the Harvey Street development was to be transferred to him for $nil once the building was completed by Gratis; and

    (e)Gratis was going to pay his legal fees in relation to the proposed agreement.[13]

1. In his affidavit Tony Tomazos said that he “wanted to give [Tony Ceccon] the flat in the development in gratitude for him giving us the loan which he said would be interest free.”[14]  He also said that “the offer to him of a flat which I made to him was passed on to his lawyers but it was never meant to be anything more than a gift and this is how Tony understood it to be.”[15]

2. According to diary notes made by Gratis’ then lawyers, Tony Tomazos telephoned Ms Papazoglou of MSP Legal on 16 November 2010 and informed her that Gratis would be borrowing $2 million from Ceccon to help with the purchase of 20 Harvey Street. The notes also said that the loan would be for a term of 12 months and would be secured by a second mortgage and that interest would be paid at the rate which Ceccon is earning on term deposit, which he thought was 6% per annum.[16]  This was followed by further telephone discussions that afternoon between Ms Papazoglou and Ceccon’s solicitor Mr Logonathan of Ward Keller, and then Tony Tomazos, who confirmed that an apartment in the development was to be given to Ceccon.[17]  It seems that the money was required urgently, for settlement of the purchase on 30 November.

3. Ward Keller drafted a “Deed of Loan Agreement” which recorded that the date of the deed was to be 30 November 2010, the lender was to be Tony Ceccon, Tony Tomazos and Despina Tomazos were to be guarantors, and Gratis was to pay Ceccon’s legal costs.  The draft also stated interest rates of 7%, 8% and 9% respectively on so much of the principal sum as was outstanding during the first, second and third years.  The draft contained an entire agreement clause.  It made no reference to a unit.[18]

4. MSP Legal drafted another deed, between Gratis and Tony Ceccon, which specifically related to the “Ceccon unit” defined to mean “a top floor unit in the [Harvey Street] Development which is to be transferred to Ceccon as consideration for the Funding Amount.”  “Funding Amount means $2 million loaned to Gratis pursuant to the Loan Agreement” which in turn was defined to mean “the loan agreement and ancillary arrangements entered into between Gratis and their officers … and Ceccon … for funding the purchase of the [Harvey Street] land.”  Under “Background” the draft stated: “In consideration of Ceccon providing the Funding Amount to Gratis, Gratis shall transfer the Ceccon Unit to Ceccon pursuant to the terms of this Deed.”  Clause 2.1 of the draft stated: “In consideration of Ceccon providing the Funding Amount, Gratis agrees to transfer the unencumbered estate and interest in the Ceccon unit to Ceccon, pursuant to the terms and conditions set out in Gratis’ standard contract of sale to be prepared by Gratis for the sale of units in the development to the public.”[19]  In a later version the words “In consideration of Ceccon providing the Funding Amount to Gratis” were removed from the Background, and also from clause 2.1, so that it began with the words “Provided that Ceccon properly executes the Loan Agreement”.[20] 

5. Ms Papazoglou made diary notes of several telephone communications on 30 November.  One was with John Tomazos concerning the “side deed” concerning the unit.  In answer to John Tomazos’ enquiry about Gratis’ exposure if Gratis does not develop Harvey Street, Ms Papazoglou stated that it would be the cost of a top floor apartment.[21]  Ms Papazoglou then spoke to Mr Logonathan who informed her that Mr Ceccon was concerned about the fact that the mortgage would not be registered at the time when some of the money was released.[22]  She then rang John Tomazos to discuss this issue and his instructions to change the interest rates to 6.5%, 7.5% and 8.5% respectively.[23] 

6. On 15 December 2010 Ms Papazoglou sent a detailed email to John Tomazos in relation to the two draft deeds including that Ceccon was insisting on the original interest rates of 7%, 8% and 9% for the loan and that a settlement date be inserted in the Ceccon Unit Deed.  The email also informed John Tomazos that Ward Keller’s fees were more than had previously been assumed.[24]

7. On 17 December Ms Papazoglou discussed the proposed changes with John Tomazos.  He said that the interest rates of 7%, 8% and 9% were acceptable.[25]  There was also discussion about Ward Keller’s fees and Mr Ceccon’s insistence that he would withdraw his offer to lend the money if Gratis did not pay those fees.  That seems to have been the end of the matter.

8. Tony Tomazos was cross-examined about his evidence that the $2 million loan was to be interest-free,[26] and about the side deed relating to the unit.[27]  He said that he promised Mr Ceccon the unit when Mr Ceccon had promised him the $2 million without interest, and that they never had any further discussions after that.  Nor did he have any discussions about a side agreement.  When asked whether John Tomazos had told him about a side agreement he said that the negotiations were just between him and Mr Ceccon, and that John had nothing to do with that agreement.  He further implied that the lawyers must have discussed this between themselves, presumably without instructions from himself or John.  He did not remember the rates of interest that he had discussed with John Tomazos.[28]  Contrary to the impression created in his affidavit, at paragraphs [44] and [45], I consider that Tony Tomazos was aware in November 2010 that the $2 million loan would not be interest-free and that the interest rates would be 7%, 8% and 9%, as agreed between Tony Ceccon and John Tomazos.

   Discussions in April 2011 regarding the $1 million loan

9. Tony Ceccon says that he did not hear any further about the proposed loan until early April 2011 when Tony Tomazos rang and asked him to attend at his office in Winnellie urgently.  Tony Tomazos said that they were in trouble with the Harvey Street property deal and needed to come up with $2 million within 24 hours.  Mr Ceccon said that he could only lend $1 million that quickly.  He said that Tony Tomazos was very upset about possibly losing the property deal and said:

   The term of the loan will be the same as what we agreed in December last year just without the mortgage. I promise I will pay you back. We will pay interest at 7% for the first year, 8% for the second year and 9% for the last year. There is no time to arrange security for the loan but we will still transfer a unit in the Harvey Street development to you as part of the loan. We will transfer the unit to you because you are helping us out with the money.[29]

10. Tony Ceccon said that he would speak to his wife and work out where the money could come from.  He said that John Tomazos was also present during the discussion and he too spoke about the urgency of Tomazos obtaining this financial assistance.[30]

11. In his affidavit, Tony Tomazos says that the settlement on Harvey Street had been delayed and that Tony Ceccon again offered a loan.  He says that Tomazos no longer needed funds from him but Mr Ceccon was insistent.  I do not accept that part of Tony Tomazos’ evidence.  Not only is it inconsistent with the evidence of Mr Ceccon and Ms Ceccon (referred to in [73] below) it does not make commercial sense.  Why would a person borrow $1 million if he did not need it?

12. Tony Tomazos also says that there was never any suggestion that the loan would be from Ceccon Transport or Ms Ceccon.  He says that Tony Ceccon initially said that he did not want interest on the loan amount but, later on, Tomazos agreed to pay him interest on the second and third year of the loan and repay the principal of $1 million in three years’ time.  He says Tony Ceccon asked John to draft a letter recording the loan agreement.  He had told John that “because of the help Tony was going to give us and because he was going to provide us with his pits and a loan we should do the right thing and offer him a flat in the development Tomazos was doing at Harvey Street.”[31]

13. All that John Tomazos said about the loan agreement in his affidavit was that Mr Ceccon lent $1 million in April 2011, and that Tomazos agreed to repay the loan in 3 years, not to pay interest for the first year but to pay 8% interest for the second year and 9% for the third year.[32]

14. Ms Ceccon says that on about 3 April 2011 her husband came home and they had the following discussion:

    TC: I have promised to lend $1,000,000.00 to Tony Tomazos. He will lose his property deal if I don’t lend him the money. He needs the money tomorrow.

    SC:How could you lend him that much money! He won’t pay it back. Did you even get it in writing? You're a bloody idiot for doing that.

    TC:We have to lend it. He was very upset. I gave him my word and so we have to lend it now. I can't go back on my word.[33]

15. She said they had a big argument.  Her husband told her to arrange a cheque for Tomazos Group and to deliver it to Tony Tomazos at his office the next morning.  She left the house in anger.[34]

16. Ms Ceccon went to the bank the next morning, 4 April, and again on 5 April, and purchased bank cheques from her own account.  She says she then took the cheques and gave them to John Tomazos.[35]

    Oral evidence

17. Tony Ceccon was cross-examined about both loan arrangements.  He was obviously confused when answering questions and referred to the difficulties with his memory on account of his stroke.  He sometimes denied, and at other times said that he could not remember, certain things, for example instructing Mr Logonathan in relation to the 2010 negotiations, whether the loan was $1 million or $1.5 million and who it was who actually gave the cheques to Tomazos in April 2011.  Unfortunately there appeared to be some confusion in his mind as to the focus of particular questions and conflation on his part between the discussions in late 2010 and those in early April 2011. 

18. He said that he discussed the interest rates with Tony Tomazos shortly prior to giving him the money and that Tony Tomazos wrote them down on a piece of paper that was like a receipt.  He said that he took the piece of paper back to the office but does not know what happened to it.  It was not the document eventually signed on 24 June 2011.[36]

19. Ms Ceccon said that she was sure that she delivered the cheques to Tomazos.  When asked about Mr Ceccon’s evidence about the piece of paper Ms Ceccon said she has not seen a receipt as such “but a schedule of payment form that I kept whingeing about”.[37]  She was not asked anything more about that document.

20. In response to questions about the reference to an apartment in the 24 June 2011 document, Mr Ceccon said that topic was discussed on the same day (as the discussion about the loan and interest rates).  At pp 17-18 of the transcript of 13 April 2016:

    And you’ll see in that piece of paper in front of you is also reference to an apartment? --- Yeah, because they didn’t have enough security for that $1 million so they said they will give me an apartment until they paid me back, otherwise the apartment would be part of the security for the money they were lending.

    … As I understood what you just told us, you were being given an apartment as security for … --- Yeah, because there was not enough security with the $1.5 million, so they say that they offer me another flat until they pay back the money or otherwise, a certain period, I will collect that flat from them.

    Right, so they offered you the flat until they paid back the money and if they didn’t pay it back, you would get the flat.  Is that what you understood? --- Yeah.

21. Tony Tomazos’ recollections about the discussions leading up to the two loans were also poor.  He conceded that John had told him that Tony Ceccon wanted interest on the $2 million loan, but repeated that he only promised the unit when he thought that loan was to be interest-free.  When he was asked about the 24 June 2011 document and the reference to Ceccon been given freehold title to an apartment in the development, he said that Mr Ceccon told John Tomazos what to put in that document and that he did not dispute that because he did not wish to destroy his friendship with Mr Ceccon.[38]

    Legal principles

22. Counsel for the plaintiffs provided the following useful analysis of relevant principles.

23. The rights and liabilities of parties to a contract are determined in accordance with the objective theory of contract.   In Woodside,[39] the majority of the High Court (French CJ, Hayne, Crennan and Kiefel JJ) said at p 656 [35], under the sub-heading “The construction issue”:

    … this Court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating"[40]. As Arden LJ observed in Re Golden Key Ltd[41], unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties ... intended to produce a commercial result". A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience"[42].

    (some footnotes omitted, emphasis added).

24. As to the determination of the identity of parties to a contract, Allsop P and Handley AJA said, at [27] of the decision of the New South Wales Court of Appeal in Air Tahiti Nui Pty Ltd v McKenzie:[43]

    The identity of the contracting party is to be determined looking at the matter objectively, examining and construing any relevant documents in the factual matrix in which they were created and ascertaining between whom the parties objectively intended to contract. This is, to a point, a process of construction similar to the task of identifying whether a clearly contractual document (such as a bill of lading) is made with one party or another (such as a ship owner or time charterer): …. Where the documents are silent or ambiguous, but there is undoubtedly a contract, the identity of the parties must be determined objectively from the surrounding circumstances.

    (some case references omitted)

25. In Pethybridge v Stedikas Holdings Pty Ltd,[44] the New South Wales Court of Appeal left open the question of whether it is permissible to look at post-contractual communications and conduct in order to determine whether a contract with a particular party existed.[45]

26. In Tomko v Palasty,[46] Basten JA of the New South Wales Court of Appeal (Mason P agreeing) added, at [13]:

    Except to the extent that [subsequent conduct of the parties] … constitute admissions by one or other party, they are largely equivocal.”

27. In that same case, Einstein J (Mason P agreeing) considered the Pethybridge case and found that “evidence of post-contractual conduct is admissible on the question f whether a contract was formed.”[47]

28. In his Honour’s view (at [68]), that meant that:

    …subsequent communications may legitimately be used against a party as an admission by conduct of the existence or non-existence, as the case may be, of a subsisting contract, where an issue concerns whether a particular person was a party to that contract.

29. However, the status of post-contractual communications in identifying the identity of contracting parties is not settled.  In Johnston v Brightstars Holding Company Pty Ltd,[48] Beazley P (Gleeson JA agreeing) of the New South Wales Court of Appeal in obiter, noted at [56]:

    [56] Although the status of post-contractual conduct may not be finally settled, it is clear that Australian law does not recognise the subjective intentions of the parties as relevant to the construction of the contract actually formed: see Codelfa, Brambles and Electricity Generation Corporation. In Administration of Papua and New Guinea v Daera Guba,[49] Gibbs J approved a statement from James Miller & Partners Ltd v Whitworth Street Estates (Manchester) Ltd that:[50]

    … it is not legitimate to use as an aid in the construction of [a] contract anything which the parties said or did after it was made.

    [57] This statement was recently reaffirmed in Agricultural and Rural Finance Pty Ltd v Gardiner.[51]

30. Also in Johnston, Basten JA (Gleeson JA agreeing), considered the legal principles applicable to determining whether post-contractual conduct is admissible to demonstrate that the obligation to pay the fees was merely deferred. Basten JA noted that, in the current case, the post-contractual statements provided evidence of facts only so they were admissible for determining what the parties had agreed:

    [120] There are difficulties attending the use of post-contractual statements to construe the terms of a contract. It is an accepted principle that anything which the parties said or did after a contract was made cannot be used “as an aid in the construction of” the contract. … That principle derives from the “objective“ theory of contract, which provides that the legal obligations of the parties to the contract do not depend upon their subjective beliefs but upon the view of the reasonable bystander informed as to the surrounding context and circumstances, which in practice means the view of the court based on the evidence before it.

    [121]On the other hand, where it provides evidence of facts, the assertion of which is against the interests of one party, it may be admissible as an admission by that party. However, to the extent that the evidence reveals an opinion as to a question of law rather than fact, the admission may be irrelevant or valueless.  Alternatively, the evidence may establish contextual facts in existence at the time the contract was executed.

    [122]These principles apply to the determination of the meaning of a written document. However, in this case, as succinctly stated by Spigelman CJ in County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [7]:

    The issue is not one of interpretation, because there are no words to interpret. The issue is one of fact: what did the parties agree?

    (some references omitted)

    Who is the true creditor?

31. As noted, the plaintiffs contend that Ceccon Transport lent the $1 million, whereas the defendant contends that the money was lent by Tony Ceccon.

32. The following surrounding circumstances as at the date that the parties made the Loan Agreement are relevant in identifying the true creditor:

    (a)There was an earlier attempt in late 2010 by the Tomazos interests to effect a loan agreement for the purpose of assisting them to purchase the Harvey Street property.  The parties engaged lawyers to assist them in documenting their respective rights and liabilities under the then proposed loan agreement.  The draft loan documentation that was prepared in late 2010, and the instructions given to the respective lawyers for that purpose, show that that loan was intended to be made by Tony Ceccon personally;

    (b)In respect of the April 2011 loan, Tony Ceccon’s evidence was that Tony Tomazos had approached him and said “Please lend me the money Tony” and Mr Ceccon replied, “The most I can lend urgently is $1 million but I will need to speak to Susie.  Susie is not happy that I was going to lend you any money at all.”  He went on to say that Tony Tomazos talked about the arrangements being similar to those previously discussed in late 2010;[52]

    (c)The monies advanced were withdrawn by Suzanne Ceccon out of her account;

    (d)The written Agreement dated 4 April and signed on 26 June 2011 refers only to “Ceccon” as the lender and is signed by “A Ceccon”.  There is no suggestion that he signed it in any capacity other than his own;

    (e)There is no evidence, for example in the nature of bank statements or financial records of Ceccon Transport, that suggests that the monies were in fact advanced by or on behalf of Ceccon Transport.

1. Counsel for the plaintiffs submits that even though the principals of both Ceccon Transport and Tomazos Group had known each other for some years and were on friendly, personal terms, their main dealings were commercial dealings between their respective companies.  Counsel contends that the loan effected in 2011 was a commercial dealing and not a private, personal arrangement in that monies were loaned to Tomazos Group for use in respect of a property development.  However, as counsel for the defendant points out, the commercial dealings between the respective companies related to the sale and supply of building materials, necessarily involving the companies which conducted those businesses.  Although the loan was to assist Tomazos Group (formerly Gratis) to purchase the Harvey Street land as part of its business, the lending of the money had nothing to do with the business of Ceccon Transport.  Rather, Tony Ceccon was lending the money as a friend of Tony Tomazos.

2. Counsel for the plaintiffs submits that there is no unequivocal post-contractual admission that can be used by the Court in identifying the creditor as a matter of fact.  The question of identity remains one of law, or mixed fact and law.  The fact that monies were withdrawn from Ms Ceccon’s account for the loan, subsequently re-paid in part to Mr Ceccon, or endorsed over to Ceccon Transport are not determinative facts of the identity of the creditor.  In particular, the repayment to Mr Ceccon is to be understood as Tomazos Group proceeding on an assumption as to who was the creditor.  However, in the circumstances, the Court should infer that the Loan Agreement was another commercial arrangement between the parties, the protagonists of which were the companies, not the individuals.  Therefore, the signature of Tony Ceccon on the Loan Agreement is to be understood as being made on behalf of Ceccon Transport.  Thus, Ceccon Transport is the true creditor under the Loan Agreement.

3. I disagree.  For the reasons noted primarily in [91] above, I conclude that Tony Ceccon lent the monies.  He is the creditor.

   Interest payable under the Loan Agreement

4. The Ceccon parties press the alternative case on interest pleaded in paragraph 6(c)(ii) of the Statement of Claim: that Tomazos Group would pay 8% per annum for the first two years of the term of the Loan Agreement, and 9% for the third year.  Counsel submits that the best evidence of this is the letter of 19 September 2014 (set out in [52] above), [53] prepared and signed by John Tomazos in his capacity as the General Manager of Tomazos Group and addressed to Tony and Suzie Ceccon.

5. In that letter Tomazos Group declares a commitment to repay “in full” the amount of the loan, and to pay “associated interest of $271,376.00”.  When one considers the figure of $271,376.00 it equates to compound interest on the loan of 8% for the first year, 8% for the second year and 9% for the third year, calculated to September 2014.

6. The calculations are as follows:

Date	INV#	Description	Rate	Amount	Interest	Total
05.04.12	8380	Interest	8%	$1,000,000.00	$80,000.00	$1,080,000.00
05.04.13	8381	Interest	8%	$1,080,000.00	$86,400.00	$1,166,400.00
05.04.14	8382	Interest	9%	$1,166,400.00	$104,976.00	$1,271,376.00
Total Interest					$271,376.00

1. Although the 19 September 2014 letter is a post-contractual communication, the plaintiffs contend it is admissible to determine liability for interest because it is evidence of an admission against the interest that Tomazos Group is advancing in this proceeding, that the loan was interest free for the first year.  The amount of $271,376.00 demonstrates that this was not the case. 

2. Further, Tomazos Group has not proved an oral agreement presupposing the 19 September 2014 letter that interest was compromised in full at $271,376.00.  Both Mr Ceccon and Ms Ceccon were taken to the letter in cross examination, but it was not put to them, nor was it established, that the entitlement to interest was compromised at $271,376.00.  On the contrary, Mr Ceccon denied that when he and Ms Ceccon met with Tony Tomazos at his office in Winnellie on or about 19 September they agreed on interest in the sum of 271,376.00.[54]  The most that could be said is that if Tomazos Group followed through on its intended “commitment”, referenced in the letter by repaying the principal and interest, it would not have incurred more interest.  However, it did not repay those amounts.

[100]Consequently counsel submitted that there is no basis for the Court to find that the amount payable for interest was compromised at $271,376.00.  Interest is payable on the Loan Agreement of $271,376.00 (calculated to 4 April 2014 and continuing at a rate of 9%).  Counsel submits that the rate of 9% applies from the date of default because it should be inferred that the rate of 9% agreed for the third year should continue until the loan is repaid in full.

[101]Counsel for the defendant agrees with the arithmetic set out in the table in [97] above, but contends that the plaintiffs’ submission fails to take into account that the repayment proposal involves the loan being repaid over four years, not after three years as originally agreed. The repayment proposal involves three years of interest, and one year where no interest (or further interest) was to be paid.

[102]Counsel also contends that the repayment proposal cannot constitute an admission against interest.  It admits nothing in relation to the original agreement.  There is no evidence other than the terms of the June 2011 document as to the interest rate originally agreed.

[103]I reject the plaintiffs’ alternative case on interest. 

[104]I accept Mr Ceccon’s evidence to the effect that during their discussion on about 3 April 2011 he and Tony Tomazos agreed that interest would be payable for each of the three years of the proposed loan at the same rates as had previously been agreed during the negotiations in November 2010, namely 7% for the first year, 8% for the second year and 9% for the third year.  The requirement for interest to be paid for each year, and the particular rates agreed upon, would have been fresh in the parties’ minds at the time, particularly in light of the fact that there had been some negotiation about the appropriate interest rates only four months earlier. 

[105]Further, it is very clear from the negotiations in November 2010, that although Tony Ceccon was prepared to assist Tony Tomazos by lending his company a substantial amount of money, such a loan was to be on commercial terms.  In addition to the need for the loan to be secured, for example by a second mortgage over the property and by guarantees, Tony Ceccon expected to be paid interest for the duration of the loan, including its first year, and interest commensurate with what his money would otherwise have been capable of earning, for example on term deposit.

[106]I find that on or about 3 April 2011 Tony Ceccon and Tomazos Group agreed to the loan of $1 million on terms that included payment of interest for each of the three years commencing 4 April 2011 at the rates of 7%, 8% and 9% respectively.

1. There is no evidence to suggest that an interest rate of 8% for the first year was ever agreed upon, at least prior to the agreement of 3 April 2011 or even at the time when the parties signed the letter on 24 June 2011.  Even if the 19 September 2014 letter could be used as an admission, which I doubt, there is no other evidence supporting the inference sought to be drawn.  Rather the only evidence is that 7% was agreed for that first year

[108]I consider that the purported recording of the Loan Agreement in the letter signed on 26 June 2011 was incomplete, in that it did not refer to the first year of the loan at all.  For reasons that will emerge when I discuss the next issue, that letter was also inaccurate in relation to the apartment.

[109]I agree with counsel for the plaintiffs that the 19 September 2014 letter does not evidence or amount to a variation of the agreement or some kind of compromise.  There is no evidence that such a variation or compromise was ever discussed with Mr (or Ms) Ceccon.  The letter is merely evidence of a unilateral promise to repay the loan by monthly instalments of $100,000, the three years having expired in April 2014. 

[110]While there was no discussion about interest payable in the event that the loan was not repaid in full within the three year term, I would imply an agreement that the rate that had been agreed for the third and final year of the loan, namely 9% per annum, would continue to apply.  I note that the loan documents drafted in November 2010 contemplated higher rates of interest payable in the event of default, as do most if not all loans made by financial institutions.  However there is no evidence of any discussions about this issue in relation to the Loan Agreement.  Conversely, there is no basis for inferring that the parties would have contemplated the defendant obtaining some kind of windfall by defaulting and only being obliged to pay some lower rate of interest. 

[111]In summary, the plaintiff Antonio Ceccon is entitled to the repayment of the remaining principal outstanding, together with interest calculated at the rates of 7%, 8% and 9% per annum respectively for the first three years, and 9% thereafter.

[112]I also infer that the interest due was to be paid at the end of each of the three years and that the interest payable for the second and succeeding years would be calculated on the total amount then outstanding.  Such an inference would be consistent with normal commercial practice, for example in relation to a term deposit under which interest is to be paid in arrears, in this case yearly, and also with the way in which John Tomazos calculated the interest payable in the 19 September 2014 letter, namely interest compounded each year. 

[113]Accordingly the total amount outstanding as at the end of the first year was $1,070,000.00, at the end of the second year $1,155,600.00 and at the end of the third year $1,259,604.00.  From that time interest compounded of the rate of 9% per annum. 

Transfer of a unit

[114]I agree with the plaintiffs’ contention that the transfer of a unit in the Harvey Street development was contemplated by a side deed in 2010 when Ceccon Transport and Gratis engaged lawyers to document an earlier proposed loan agreement approximately six months earlier.  Even though that loan agreement was not carried into effect, the parties at that earlier point in time conceptualised the transfer of the unit as part of the intended arrangement. 

[115]However, the likely contractual consequences of those discussions would have been difficult to discern, were that necessary.  I say that for several reasons.  First, one might need to attempt to reconcile the existence and terms of the “side deed” drafted by Tomazos’ lawyers on the one hand, with the existence and terms of the “entire agreement” clause in the loan agreement drafted by Mr Ceccon’s lawyers on the other.  Second, one might also need to take into account Tony Tomazos’ evidence that his offer of a unit was made at an early stage of the discussions when he assumed that no interest would be payable on the $2 million loan.  Once this situation changed and interest was to be paid at commercial rates, the provision of a unit would be an extraordinary and excessive additional term.  Such a term would be disproportionate to the size of the loan, where the loan was to be secured by a second mortgage over the Harvey Street land and personal guarantees were to be given by Tony Tomazos and his wife.

[116]Accordingly, unlike the situation in relation to interest rates, such discussion as may have occurred in early April 2011, by reference to any agreement or negotiations in November 2010 about a unit, would have been equivocal.  Whilst the discussion at Tomazos’ offices on 3 April, about applying to the new loan the same interest rates as those which had previously been negotiated and agreed, would have been simple and uncomplicated, the same could not be said of any discussion about the unit.  I say this partly because of the uncertainty about the contractual effect of any agreement that might have been, but was not, reached following the November negotiations.  I also say this because of the likelihood that the participants would have had differing objectives and may well have misunderstood things that other participants said and agreed to.  In addition to the fact that Tony Ceccon and Tony Tomazos are from two different Mediterranean countries and speak with accents that sometimes make it difficult to understand exactly what they are saying, the only note of the discussion was made almost 11 weeks later when the 24 June 2011 document was signed.  Even then, any discussion or agreement about the unit was not expressed in such a way as to acknowledge what, if anything, had been, or was being, agreed.

[117]I accept Tony Ceccon’s evidence that the provision of a unit to him was discussed by him and Tony Tomazos at the meeting on 3 April 2011. Tony Tomazos did not deny that such a discussion took place but did deny that he said: “There is no time to arrange security for the loan but we will still transfer a unit in the Harvey Street development to you as part of the loan.”[55] Tony Tomazos said in his evidence: “No, no. Was not part of security, was not part of everything.  Nothing.  The unit was not part of the deal.”[56] John Tomazos’ evidence seems to be that the provision of a unit was not discussed then, but was discussed when the Loan Agreement came to be documented in June 2011.

[118]I consider that the best evidence about the substance of what was said at the meeting is that given by Mr Ceccon during cross-examination, quoted at [79] above. At that point of his cross-examination he seemed to fully understand what he was being asked about and he was doing his best to provide accurate answers about that topic. To the extent that those answers differ from the wording in [24] of his affidavit, in particular the words “as part of the loan”, I consider they more accurately convey what was discussed.

[119]Those answers convey, and I find, that Mr Ceccon’s understanding was that an apartment was to be provided by way of security for the loan, not as consideration for the loan.  The intent was that Mr Ceccon would only have been entitled to an unencumbered freehold interest in an apartment if, as did not happen, an apartment was provided by way of security and if Tomazos Group failed to repay the loan.

[120]Whether or not this was also the understanding and intent of Tony and John Tomazos, the loan proceeded without any further steps being taken to formalise or otherwise proceed with such a proposal.  Such a proposal or agreement could have been, but was not, documented, for example in the 24 June 2011 document.

[121]Counsel for the plaintiffs stresses the fact that the 24 June 2011 document was prepared by John Tomazos.  Counsel relies on Tony Tomazos’ evidence that stage 1 of the Harvey Street development was now complete, and his concession that Mr Ceccon “is free to choose a unit in the development … according to this document.”[57]  However, I do not consider this to be a concession concerning the legal issue at hand, namely whether the promise of a unit was part of the consideration for the loan, a gift or something else.  In any event the determination of this issue turns on what was in fact agreed, if anything, not upon Tony Tomazos’ opinion about the meaning and effect of those particular words.

[122]The wording in the second paragraph of the 24 June 2011 document is consistent with Tony Tomazos’ evidence to the effect that he had promised to give a unit to Tony Ceccon.  He had initially promised to give a unit to Tony Ceccon because of his readiness to assist his company when it was urgently in need of $2 million in November 2010, and when he thought that such assistance would be provided without other consideration such as interest.  As things changed, both in the course of the November 2010 negotiations and in the context of the Loan Agreement, his long-standing friendship with Tony Ceccon and his desire not to upset that friendship resulted in him leaving that promise to be recorded as it was in the 24 June 2011 document.

[123]As generous as that might appear, even between good friends with their respective ethnic origins, the promise of a unit was just that.  It was not a term of the loan or the Loan Agreement.

Other contentions

[124]The defendant raises a number of contentions that would arise if I had found that the transfer of a unit was a term of the Loan Agreement. These include contentions that the term would be void for uncertainty, or, alternatively unenforceable because of s 62 of the Law of Property Act.  In view of my finding concerning this issue, it is not necessary for me to deal with those contentions.

B.  Materials Sale and Supply

[125]This claim relates to the sale of building materials, the hire of equipment and the provision of waste disposal services by Ceccon Transport to the defendant Tomazos Group in the period from early 2009 to November 2011.  As at that time the balance due was $322,886.79.

[126]Tomazos Group admits the amount claimed and that it has failed to pay it.  Tomazos Group says that it was not called upon to pay the amount until shortly prior to the commencement of this proceeding and that it is entitled to set off against such liability the amounts owed to it as pleaded in its counterclaim herein.

[127]I find that the defendant is liable to pay the sum of $322,886.79 together with interest from November 2011.

C.  Alternative November 2011 Agreement

[128]About the time when Tomazos Group took over Ceccon Transport’s transport business and occupied the yard at Boral, Tony Ceccon and John Tomazos had discussions about Tomazos Group purchasing building materials that had been extracted and stockpiled by Ceccon Transport and using and purchasing machinery and other items owned by Ceccon Transport.  The materials had been stockpiled at areas referred to and known by the parties as Gunn Point Road Pit 1, Gunn Point Road Pit 2, Scrubby Creek and the Boral Yard (Stockpile Locations).  The discussions also involved Tomazos Group’s access to the Stockpile Locations.

[129]Until the close of the evidence, the plaintiffs contended that the parties had entered into an agreement (defined as the November 2011 Sale Agreement), whereby Ceccon Transport sold and Tomazos Group purchased:

(a)the building materials at the Stockpile Locations for $532,358.20; and

(b)miscellaneous machinery products comprising oil, fuel, grease and like products for $60,843.98

[130]The plaintiffs also contended that under the agreement Ceccon Transport would allow Tomazos Group to use a number of items at the Boral Yard for a short period, namely:

(a)a genset hut;

(b)a fuel tank and;

(c)3 double gates and a single gate.[58]

[131]However during final submissions, the contentions regarding the sale of all of the building materials and all of the miscellaneous machinery products were not pressed.  Instead the plaintiffs advanced an alternative contention, that the parties agreed that Tomazos Group could take building materials from the stockpiles and use some of the miscellaneous machinery products on terms that it would pay for those materials and products in accordance with rates that had been agreed.  This was referred to as the Alternative November 2011 Sale Agreement or Arrangement.[59]

[132]Tomazos Group agrees that when it took over the Boral Yard on 1 November 2011 Ceccon Transport had a number of stockpiles of materials which it made available to Tomazos for it to use itself or sell to others.  Agreement was reached as to the rates per tonne at which the material could be purchased by Tomazos as needed and used.  

[441]Mr Joy did not see or have any involvement in the preparation of the 26 October 2012 agreement.  Contrary to Tomazos’ desires to obtain rights to access and use other areas leased by Ceccon, in particular MA29405 and the northern part of MA24730, the agreement only allowed access and use of the south-east portion of MA24730, most of which would have already been mined by then.  When he was asked why he wanted a written agreement at that time John Tomazos said: “That’s probably because we already had material in this pit by then and we needed an agreement to be able to take the material out.”[308]

[442]Tomazos commenced mining operations in its pit on Finn Road in about September 2012.  It had prepared its Mining Management Plan for Finn Road[309] early in 2012 with the express purpose of extracting gravel for supply to the Inpex project.

[443]Mr Joy said that by about 5 December 2012 Tomazos had ceased production at Jenkins Road Pit.  It had commenced production from its lease at Finn Road.  Stockpiles were still there, at Jenkins Road Pit, awaiting quality testing for Inpex, before they were removed and supplied to MJHJV, the last batch being removed late in January 2013.  There were no difficulties getting access to those stockpiles for that purpose.

[444]I agree with Ceccon’s submissions that although Ceccon permitted Tomazos to access the Jenkins Road Pit to mine gravel, access was restricted to the south-eastern portion.  Tomazos wanted access to other parts of the Jenkins Road Pit outside of the south-eastern portion of MA24730 and into the adjoining lease, but Ceccon never agreed to that.  They were not bound to give access at all, and that is why Tomazos sought to have a formal agreement in the form of Exhibit P10 entered into in June 2012 and then again in October 2012.

[445]By 5 December 2012 Tomazos Group had ceased mining operations at the Jenkins Road Pit and had commenced operations at Finn Road on its own lease.  Ceccon did not prevent Tomazos from removing the stockpiles it had mined and stockpiled on the lease. 

[446]Therefore, there is no breach of the Validation and Accessibility Agreement. 

[447]There was some confusion on the part of Tony Ceccon and others as to the extent of the south-eastern portion of MA24730, largely because Tony Ceccon and others present such as Mr Joy did not have maps with them when they were on site.  This is not relevant.  It is clear when one looks at Exhibit D3 that the south-eastern portion of MA24730 is the area depicted as lots numbered 1 to 7 on the bottom part of that document.

[448]I agree with Tomazos’ submissions that Ceccon’s letter of 5 December 2012 was misleading and inappropriate.  However John Tomazos’ reply later that day and Sandra Johnson’s clarification the next day made it abundantly clear that Tomazos was not at any risk of Ceccon pursuing its threat.

Set off

[449]This claim was pleaded by Tomazos after the completion of the evidence by inserting paragraphs [20] to [22] into the Counterclaim.

[450]Tomazos pleads that in late 2012 Tony Ceccon and John Tomazos “verbally agreed” that Ceccon would give to Tomazos 40,000 square metres of sand in exchange for a float trailer.  Tomazos alleges that in breach of that agreement Ceccon only supplied approximately 10,000 square metres of sand.  Tomazos claims a set off “for the value of the sand not supplied as against any money due and owing by Tomazos to Ceccon pursuant to the GPR Pit 1 agreement.”

[451]Tomazos submissions[310] in relation to this claim are simply:

[126] Fill sand

[127] Tomazos relies upon the evidence of John by affidavit at [26][311]

[452]It is not readily apparent what Tomazos contends to be “the value of the sand not supplied”.

[453]In answer to this claim the Ceccon parties pleaded that:[312]

(a)Tony Ceccon and John Tomazos agreed to exchange a float trailer for sand;

(b)Tony Ceccon and John Tomazos jointly agreed a value for the float trailer of $25,000.00;

(c)Tony Ceccon identified a particular stock pile of sand at Gunn Point Road Pit 2 to John Tomazos;

(d)John Tomazos agreed to take the stockpile identified in exchange for the float trailer;

(e)Ceccon Transport took possession of the float trailer; and

(f)Tomazos Group loaded and hauled the sand.

[454]Ceccon denies the breach and the entitlement to set off.

[455]In [26] of his affidavit sworn 16 January 2016[313] John Tomazos deposes that:

Tony offered if Tomazos gave him a float trailer it had, he would give Tomazos 200 x 200 m of sand which at that stage Tomazos needed. I therefore agreed on behalf of Tomazos, however when the sand was mined, what is given to us by Ceccon was only 100 x 100 m2.  The shortfall would have been approximately equivalent in size to the stockpile of Ceccon's that we had used and we therefore seek to offset the difference.

[456]Those matters are specifically denied by Tony Ceccon.  In [73] of his affidavit sworn on 25 February 2016[314] Mr Ceccon deposes to the following:

In respect of the float trailer referred to in paragraph 26 of the John Tomazos affidavit, I recall that:

(a)Tomazos Group had a truck and low loader which was worth, in my estimate about $25,000.00;

(b)Ceccon, who had sold its plant and machinery, was looking to purchase new plant and machinery;

(c)I had a discussion with John Tomazos in which I said to him that: I would like to buy that float trailer.  It is about $25,000.00.  I can give you that much worth of sand if you would like to sell it to me;

(d)either during the discussion I had with John Tomazos in which I made that offer of a very short time subsequently, John Tomazos said to me "I can give you the float trailer for the sand;

(e)at or about the time John Tomazos said the words in the preceding paragraph, I recall that he and I, and I believe Tony Tomazos as well, but I am not certain about that, visited an area in Ceccon’s pit at Gunn Point where there was a stock pile of sand which was about 100m x 100m x 6m of sand, which I pointed out and said: That looks to me to be more than $25,000.00 worth of sand”;

(f)at that time I also pointed out a smaller pile of sand which was about 150m x 6m x 3m and said: You can also take that pile of sand as an added bonus;

(g)    John Tomazos agreed to take those stock piles;

(h)    I took possession of the float trailer;

(i)     Tomazos Group collected the sand;

(j)Except when I read it in the John Tomazos affidavit, at no time did Tomazos Group, or any person associated with it, notify me or complain that there was a shortfall of 100m x 100m of sand.

[457]As counsel for Ceccon points out the matters in John Tomazos’ affidavit were not put to Tony Ceccon in cross examination.  Consequently, the matters in Tony Ceccon’s affidavit were not put to John Tomazos during his cross examination.  It was only after the final hearing that the Tomazos parties further amended their Counterclaim to plead the set off. There is, therefore, no basis or justification to prefer one witnesses’ account over the other.[315]

[458]Counsel for Ceccon contends that irrespective of whose evidence is preferred, it is clear that the parties are referring to a location to be mined or collected rather than quantities to be supplied.  This would explain why there is no evidence adduced by Tomazos that when the sand was mined an alleged shortfall was not brought to Ceccon’s attention, or any complaint made.  The inference that Tomazos was satisfied with the quantity of sand as mined in exchange for the float trailer is inescapable.  The set off, therefore, has no merit.[316]

[459]Moreover, there is no proof of quantities.  In this regard, it should be noted that Tomazos’ evidence speaks of “200 x 200m” and the Counterclaim speaks of “40,000 square metres”.  It is not clear how much sand is truly meant and how that amount is derived.  The parties do not refer to quantities (for example by reference to cubic metres), but rather refer to the size of an area to be mined.  This leaves open the question of quantities based upon useable yield.[317]

[460]Regardless, there is no proof of:

(a)the total quantity of sand in question;

(b)the quantity of sand allegedly not supplied by Ceccon Transport; and

(c)the value of the sand allegedly not supplied.[318]

[461]Thus, on the balance of probabilities, there is no basis for the asserted set-off.  Even if there was a basis for the set off, the essential elements to enable a proper quantification of it are absent.[319]

[462]Tomazos did not respond to any of these points in the Tomazos Reply on Counterclaim.

[463]I accept the submissions on behalf of Ceccon and find that Tomazos has not made out this claim.  This finding is further supported by my concerns about the reliability of the evidence of John Tomazos particularly in the circumstances where it is raised for the first time in his affidavit made several years after the occurrence of the alleged oral agreement and was not raised as an issue in this complicated counterclaim until after completion of the hearing of the evidence.

Conclusions and disposition

[464]I dismiss the allegations in the Counterclaim.  Accordingly there is no need for further submissions or consideration in relation to damages and other consequential relief sought by Tomazos.

[465]I will hear the parties further on costs and orders to be made consequential upon my findings and conclusions.

--------------------------------

[1] Third Further Amended Statement of Claim filed 4 July 2016 (Statement of Claim);
Defence to Third Further Amended Statement of Claim filed 5 August 2016 (Defence);
Further Amended Counterclaim filed 5 August 2016 (Counterclaim); Reply to Amended Defence to Third Further Amended Statement of Claim filed 24 August 2016 (Reply) and Defence to Further Amended Counterclaim filed 24 August 2016 (Defence to Counterclaim).

[2] Submissions on Plaintiffs Claims made in the Third Amended Statement of Claim dated 29 August 2016 (Ceccon Submissions); Defendants’ closing submissions dated 29 August 2016 (Tomazos Submissions); Defendants’ closing submissions on Claim in Response dated 19 September 2016 (Tomazos Response to Ceccon Submissions); Responsive Submissions on Defendants’ Further Amended Counterclaims dated 19 September 2016 (Ceccon Response to Counterclaim); Plaintiffs Reply Submissions on the Third Amended Statement of Claim dated 28 September 2016 (Ceccon Reply Submissions); Defendants’ closing submissions on Counterclaim in Reply dated 29 September 2016 (Tomazos Reply on Counterclaim).

[3] Defendant’s Supplementary Submissions and evidence references dated 27 October 2016 (Tomazos Supplementary Submissions);Email 16 December 2016 from plaintiffs’ solicitors responding to associate’s email of 1 December 2016 (Email 16 December 2016).

[4] See Transcript 14/4/16 pp 149-151.

[5] Ceccon Submissions at [1].

[6] TB 271.

[7] Statement of Claim [12].

[8] Defence [12(a)].

[9] TB 331.

[10] Defence [6(d)] and [12(b)].

[11] Exhibit P29.

[12] Defence [11].

[13] Affidavit of Antonio Ceccon sworn 3 December 2015 [20].

[14] Affidavit of Antonios Tomazos sworn 27 January 2016 [44].

[15] Affidavit of Antonios Tomazos sworn 27 January 2016 [45].

[16] TB 257.

[17] TB 254-256.

[18] TB 204-216. The draft also attached a 36 page memorandum containing the terms of a mortgage (TB 218-253).

[19] TB 262-270.

[20] TB 194-203. According to Ms Papazoglou this was done “so that Ceccon does not run into stamp duty issues”, see TB 169.

[21] TB 177.

[22] TB 176.

[23] TB 175.

[24] TB 169.

[25] TB 167.

[26] See [60] above.

[27] See [64] above.

[28] Transcript 19/5/16 pp 389-392.

[29] Affidavit of Antonio Ceccon sworn 3 December 2015 [24].

[30] Affidavit of Antonio Ceccon sworn 3 December 2015 [21] – [25].

[31] Affidavit of Antonios Tomazos sworn 27 January 2016 [46] – [49].

[32] Affidavit of John Tomazos sworn 19 January 2016 [10].

[33] Affidavit of Suzanne Yoko Ceccon sworn 3 December 2015 [15].

[34] Affidavit of Suzanne Yoko Ceccon sworn 3 December 2015 [106].

[35] Affidavit of Suzanne Yoko Ceccon sworn 3 December 2015 [17] and [22].

[36] Transcript 13/4/16 pp 16-7.

[37] Transcript 14/4/16 p 133.

[38] Transcript 14/4/16 p 397.

[39] Electricity Generation Corporation v Woodside Energy Limited (2014) 251 CLR 640 (Woodside).

[40] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 at 350, citing Reardon Smith Line Ltd v Hansen-Tangen [1976] 1 WLR 989 at 995-996; [1976] 3 All ER 570 at 574.

[41] Re Golden Key Ltd [2009] EWCA Civ 636 at [28].

[42] Zhu v Treasurer of New South Wales [2004] HCA 56 at [82]; (2004) 218 CLR 530 at 559.

[43] [2009] NSWCA 429; 239 FLR 367.

[44] [2007] NSWCA 154 (Pethybridge).

[45] Ibid at [2] Per Basten JA; [59] perCampbell JA, Beazley JA agreeing).

[46] [2007] NSWCA 258.

[47] Tomko v Palasty [2007] NSWCA 258 at [67].

[48] [2014] NSWCA 150 (Johnston).

[49] (1973) 130 CLR 353 at 446.

[50] [1970] AC 583 at 603.

[51] [2008] HCA 57; 238 CLR 570, per Gummow, Hayne and Kiefel JJ at [35]. See also Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107 at [358], per Campbell JA (Barrett JA and Sackville AJA agreeing).

[52] Affidavit of Antonio Ceccon sworn 3 December 2015 [21] – [24].

[53] TB 331.

[54] Affidavit of Antonio Ceccon sworn 25 February 2016 [68].

[55] Affidavit of Antonio Ceccon sworn 3 December 2015 [24].

[56] Transcript 19/5/16 p 391.

[57] Transcript 19/5/16 pp 394-395.

[58] Statement of Claim [23].

[59] Statement of Claim [24].

[60] TB 669.

[61] Affidavit of Suzanne Yoko Ceccon sworn 3 December 2015 [41] – [51].

[62] Statement of Claim [24(a)].

[63] Statement of Claim [25(a)].

[64] Exhibit P26.

[65] Transcript 18/5/16 p 269.

[66] Transcript 17/5/16 pp 230-231 and 239; Transcript 20/5/16 p 443; Tomazos Response to Ceccon Submissions at [15].

[67] See Tomazos Submissions at [62].

[68] I have not attempted to read all this material.  At the commencement of the hearing I indicated that in light of the substantial quantity of materials contained in the tender bundles I would only read those materials to which my particular attention was directed either in the course of the evidence or in submissions.

[69] Tomazos Response to Ceccon Submissions at [15].

[70] TB 1465 [24(c)].

[71] Transcript 20/5/16 p 423.

[72] Excluding Type 2 on TB 668.

[73] Transcript 17/05/16 p 218.

[74] Transcript 17/05/16 p 218.

[75] Transcript 17/05/16 p 218.

[76] Transcript 17/05/16 p 219.

[77] Transcript 17/05/2016 p 220.

[78] Transcript 17/05/2016 pp 220-221.

[79] Affidavit of John Tomazos sworn 19 January 2016 [24(a)].

[80] Transcript 17/05/2016 p 221.

[81] Affidavit of John Tomazos sworn 19 January 2016 [24(b)].

[82] Transcript 17/05/2016 pp 221-224.

[83] Transcript 17/05/2016 p 224.

[84] Transcript 17/05/2016 p 225.

[85] Transcript 17/05/2016 p 225.

[86] I have converted cubic metres to tonnes by using the multiplier of 1.8 that Mr Ceccon used in relation to other materials.

[87] Transcript 17/05/2016 p 226.

[88] Transcript 17/05/2016 p 226.

[89] Transcript 17/05/2016 pp 226-227.

[90] Transcript 17/05/2016 p 227.

[91] Transcript 17/05/2016 pp 227-228.

[92] Affidavit of John Tomazos sworn 19 January 2016 [30(ii)].

[93] Transcript 10/3/16 p 252.

[94] Transcript 17/05/2016 p 228.

[95] Affidavit of John Tomazos sworn 19 January 2016 [27].

[96] Transcript 17/05/2016 pp 228-229.

[97] Transcript 17/05/2016 p 229.

[98] Transcript 17/05/2016 p 230.

[99] TB 668.

[100] Transcript 20/05/2016 p 425.

[101] Transcript 17/05/2016 p 230.

[102] Transcript 20/05/2016 p 426.

[103] Transcript 17/05/2016 p 230.

[104] Transcript 20/05/2016 p 426.

[105] Transcript 17/05/2016 p 231.

[106] See Exhibit P12 and cross examination of John Tomazos in relation to Exhibit P12 at Transcript 20/05/16 pp 481-505.

[107] See TB 665-9.

[108] See email 16 December 2016 [2].

[109] See email 16 December 2016 [1].

[110] See [154] above.

[111] See [156](c) above.

[112] Statement of Claim at [24(b)].

[113] Defence at [24].

[114] Defence at [25(b)].

[115] Affidavit of Antonio Ceccon sworn 3 December 2015 [52].

[116] See Affidavit of John Tomazos sworn 19 January 2016 [108].

[117] Affidavit of Suzanne Yoko Ceccon sworn 2 December 2015 [52] – [55].

[118] Affidavit of John Tomazos sworn 19 January 2016 [107(h)].

[119] Transcript 23/05/16 at p 517.

[120] Transcript 17/05/2016 pp 232-239.

[121] TB 281.

[122] TB 1509.

[123] Affidavit of John Tomazos sworn 19 January 2016 at [34].

[124] Statement of Claim [38].

[125] Affidavit of Suzanne Yoko Ceccon sworn 24 February 2016 [60] - [67].

[126] Affidavit of John Tomazos sworn 19 January 2016[38].

[127] Transcript 20/5/16 p 414.

[128] Affidavit of John Tomazos sworn 19 January 2016 [40].

[129] See [90] - [94] above.

[130] See [110] - [113] above.

[131] See [123]  above.

[132] See [113] above.

[133] See [127]  above.

[134] See [169].

[135] See [187].

[136] See [193] above.

[137] See [197] above.

[138] See [206] above.

[139] See [207] - [212]  above

[140] Counterclaim [4] – [9] and [23(a)].

[141] The Australian Consumer Law is contained in Schedule 2 of the Competition and Consumer Act 2010.

[142] Counterclaim [10] – [11] and [23(b)].

[143] Counterclaim [12] – [14] and [23(c)].

[144] Counterclaim [15] – [19] and [23(d)].

[145] Counterclaim [20] – [22] and [23(e)].

[146] Counterclaim [8].

[147] Tomazos Submissions [97] – [103] and Tomazos Reply on Counterclaim [22] – [24].

[148] Tomazos Submissions [104] – [113].

[149] Tomazos Submissions [147] – [154] and Tomazos Reply on Counterclaim and [33] – [36].

[150] Tomazos Supplementary Submissions [16].

[151] Tomazos Submissions [24] – [28].

[152] Ceccon Response to Counterclaim [1] – [3].

[153] Counterclaim [4].

[154] The “Industries” were defined in [1(c)] of the Counterclaim as being the transport and mineral extraction industries.

[155] Counterclaim [4(a)].

[156] Counterclaim [4(b)].

[157] Counterclaim [4(c)].

[158] Counterclaim [4(d)].         

[159] Transcript 13/10/16 p 801; See too Tomazos Submissions [83(b)].

[160] Tomazos Submissions [83].

[161] Tomazos Submissions [138] and [143].

[162] Tomazos Submissions [83(b)].

[163] Transcript 13/10/16 p 807.

[164] Transcript 14/4/16 pp 135-136

[165] Transcript 9/3/16 p 181; Transcript 17/5/16 p 184.

[166] Affidavit of Antonios Tomazos sworn 27 January 2016 [17]; See too Affidavit of John Tomazos sworn 19 January 2016 [45] – [49]. 

[167] Affidavit of Antonios Tomazos sworn 27 January 2016 [19]; See too Affidavit of John Tomazos sworn 19 January 2016 [49].

[168] Affidavit of Antonios Tomazos sworn 27 January 2016 [20] – [23]; See too John Tomazos sworn 19 January 2016 [50] – [51].

[169] Transcript 18/5/16 p 296; Transcript 20/5/16 p 529.

[170] Affidavit Antonios Tomazos sworn 27 January 2016 [24] – [28]; See too Affidavit John Tomazos sworn 19 January 2016 [52] – [54].

[171] Affidavit of Antonio Ceccon sworn 3 December 2015 [30] – [32].

[172] TB 272.

[173] Affidavit of Antonio Ceccon sworn 3 December 2015 [34].

[174] Affidavit of Antonio Ceccon sworn 3 December 2015 [35].

[175] Transcript 25/5/16 p 643.

[176] Transcript 25/5/16 p 644.

[177] Transcript 25/5/16 p 644.

[178] Part of Exhibit P13.

[179] Dick Palliser was Boral’s quarry manager.

[180] Transcript 25/5/16 p 645.

[181] Part of Exhibit P13.

[182] Part of Exhibit P13.

[183] Part of Exhibit P13.

[184] Transcript 18/5/16 p 302-3

[185] Transcript 18/5/16 p 302-3; See too Affidavit of John Tomazos [55] – [57] reproduced below.

[186] Affidavit of Antonio Ceccon sworn 3 December 2015 [36] – [41].

[187] TB 1565.

[188] Affidavit of John Tomazos sworn 19 January 2016 [72].

[189] Affidavit of Antonios Tomazos sworn 27 January 2016 [30] – [33]. 

[190] Affidavit of Antonio Ceccon sworn 25 February 2016 [44].

[191] Affidavit of John Tomazos sworn 19 January 2016 [78] – [79].

[192] The Cartage Agreement with Tomazos Group starts at TB 1573.

[193] Transcript 20/5/16 p 437.

[194] Transcript 20/5/16 pp 439-440.

[195] Transcript 20/5/16 pp 458, 458 and 440.

[196] Transcript 20/5/16 p 459.

[197] Transcript 23/5/16 p 558.

[198] Transcript 20/5/16 p 459.

[199] The “Procurement Agreement for the Provision of Earthmoving Services (Scrubby Creek Fine-Sand Stripping; Extraction; and Cartage)” with Tomazos Group dated 1 August 2012 commences at TB 1599.

[200] The Cartage Agreement with Ceccon Transport starts at TB 905.

[201] Tomazos Submissions [84].

[202] Transcript 9/3/16 p 206.

[203] Transcript 9/3/16 p 207.

[204] Transcript 9/3/16 p 172; if he felt better: 180.

[205] Transcript 9/3/16 p 175.

[206] Transcript 9/3/16 p 203.

[207] Transcript 9/3/16 p 192.

[209] Tomazos Submissions [85].

[210] Transcript 23/5/16 p 556; Transcript 19/5/16 p 359.

[211] Tomazos Submissions [87].

[212] Tomazos Submissions [89].

[213] See [250] and [259] above.

[214] C.f Transcript 25/5/16 p 648.

[215] Tomazos Submissions [91].

[216] Tomazos Submissions [92].

[217] Tomazos Submissions [93] – [96].

[218] See too Exhibit D8.

[219] Tomazos Submissions [96].

[220] Counterclaim [6(d)], [7(c)] and [12].

[221] Part of “JT 18”at TB 1646-1740.

[222] Tomazos Reply on Counterclaim [22] – [23].

[223] Tomazos Submissions [102] quoted above.

[224] See [217] above.

[225] Transcript 11/3/16 pp 380-1.

[226] Affidavit of Neil Halligan 24.02.16 [41]-[45],; See too- affidavit of Tim Kennedy 24.02.16 [36]-[39]

[227] Ceccon Response to Counterclaim [46].

[228] TB 1571.

[229] This effectively means the plaintiffs. Any entitlement to the royalties claimed would be payable to Suzanne; cartage work would have been undertaken by Ceccon.

[230] At TB 1571.

[231] Affidavit of John Tomazos sworn 19 January 2016.

[232] Affidavit of Tony Ceccon sworn 25 February 2016 [4(c)].

[233] Affidavit of Tony Ceccon sworn 25 February 2016 [5(d)].

[234] Affidavit of Tony Ceccon sworn 25 February 2016 [8(f)].

[235] Transcript 9/3/16 p 201.

[236] Ceccon Response to Counterclaim [19] – [20].

[237] Tomazos Reply on Counterclaim [11] – [15

[238] Eg, Affidavit of John Tomazos sworn 19 January 2016 [53]; Transcript 19/05/2016 p 359.

[239] TB 726 [4(c)]; TB 727 [6].

[240] See [267] - [271] and [314] - [315] above.

[241] [2014] FCAFC 65; (2014) 224 FCR 1 (ABN AMRO).

[242] San Sebastian Pty Ltd v The Minister [1986] 162 CLR 340.

[243] See for example Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 at 249-250, 255-257, 261 and 273-274 and Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [47] & [78].

[244] Ricochet Pty Ltd v Equity Trustees Executors & Agency Co Ltd (1993) 41 FCR 229 at 235.

[245] Henville v Walker [2001] HCA 52 at [61].

[246] See [267] - [271] above.

[247] See [313] - [316] above.

[248] See [254] - [263] above.

[249] Tomazos Submissions [85].

[250] See [346] - [350] above.

[251] Counterclaim [10].

[252] Tomazos Submissions [143].

[253] Bill Acceptance Corp Ltd v GWA Ltd (1983) 78 FLR 171; Agaiby (Khalaf) v Darlington Commodities Ltd [1985] ATPR 40-535.

[254] (1990) 169 CLR 594.

[255] Tomazos Submissions [128] – [129].

[256] The Commonwealth v Verwayen (1990) 170 CLR 394 at 428-429 (Brennan J).

[257] S & E Promotions Pty Ltd v Tobin Brothers Pty Ltd (1994) 122 ALR 637 (S & E Promotions) at 653.

[258] Austotel Pty Ltd v Franklins Self-Serve Pty Ltd (1989) 16 NSWLR 582 at 610 [F].

[259] Tomazos Submissions [130] – [135].

[260] Tomazos Submissions [136].

[261] Tomazos Submissions [137].

[262] DHJPM Pty Ltd v Blackthorn Resources Pty Ltd [2011] NSWCA 348; 83 NSWLR 728(DHJPM) at [104]-[105].

[263] Cream v Bushcolt Pty Ltd [2004] WASCA 82; ATPR 42-004.

[264] Thomson, Re; In re Thomson v Allen [1930] 1 Ch 203 at 215-216.

[265] Lord Goff and Gareth Jones Law of Restitution (Sweet & Maxwell Ltd, 4^th Ed, 1994) 648.

[266] (1984) 156 CLR 41 (Hospital Products).

[267] (in liq) (2001) 207 CLR 165.

[268] Norberg v Wynrib [1992] 2 SCR 226 at 272

[269] Ibid at 312

[270] Ceccon Response to Counterclaim [119].

[271] Ceccon Response to Counterclaim [120].

[272] See [314] - [316] above.

[273] Tomazos Reply on Counterclaim [38].

[274] Territory Sheet Metal Pty Ltd & Ors v ANZ Group Ltd [2009] NTSC 31 (Territory Sheet Metal).

[275] Ibid at [1426] citing Hospital Products at 68 and 96.

[276] Ibid at [1429] citing Hospital Products at 68 and 69.

[277] Ibid at [1430] citing Consul Development Proprietary Limited v DPC Estates Proprietary Limited (1975) 132 CLR 373 at 393.

[278] Territory Sheet Metal at [1431] citing Dawson J in Hospital Products at 142.

[279]  Territory Sheet Metal at [1432] referring to Mason J Hospital Products.

[280] Ibid at [1433].

[281] Ibid at [1440], referring to Brennan J in Daly v Sydney Stock Exchange Ltd (1986) 160 CLR 371 at 384-385 citing a proposition expressed by the Lord Chancellor in Tate v Williamson (1866) 2 L. R. Ch. App. 55 at 61.

[282] Concrete Constructions Group Ltd v Litevale Pty Ltd [2002] NSWSC 670; 170 FLR 290 at [81] per Mason P.

[283] In the same terms as that provided to Ceccon: compare TB 1573 & ff with TB 822 & ff.

[284] Davies v Nyland (1975) 10 SASR 76 at 98 per Bray CJ; Ansett Transport Industries (Operations) Pty Ltd v Australian federation of Airpilots (No 2) [1991] 2 VR 636 at 646.

[285] TB 1575.

[286] Tomazos Reply on Counterclaim [33] – [37].

[287] Ceccon Response to Counterclaim [101] – [111].

[288] See [266] above.

[289] TB 1573.

[290] See for example clauses 1.4 and 1.5.

[291] The agreement could be terminated by Boral upon giving 60 days written notice to Tomazos. See clauses 3.1 and 19.4.

[292] Clause 21.4

[293] Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156; 207 FCR 220 per Keane CJ, Rares and Besanko JJ.

[294] Traffic Calming Australia Pty Ltd v CTS Creative Traffic Solutions & Ors [2015] VSC 741.

[295] (1975) 10 SASR 76.

[296] Tomazos Submissions [148]

[297] Tomazos Submissions [111].

[298] TB 1742.

[299] The relevant pleadings are at [42] – [48] of the Statement of Claim, [42] of the Defence and [6(h)], [7(c)], [15(a)], [16], [17] and [19] of the Counterclaim.

[300] Defence [42(a)].

[301] Counterclaim [16] – [17].

[302] Tomazos Submissions [119].

[303] Tomazos Submissions [120].

[304] TB 1744.

[305] TB 1748.

[306] TB 1746.

[307] Ceccon Response to Counterclaim [66] – [67].

[308] Transcript 24/4/16 p 592.

[309] Exhibit P19.

[310] Tomazos Submissions [126] – [127].

[311] TB 1466.

[312] Defence to Counterclaim [19] – [21].

[313] TB 1466.

[314] TB 751.

[315] Ceccon Response to Counterclaim [79].

[316] Ceccon Response to Counterclaim [80].

[317] Ceccon Response to Counterclaim [81].

[318] Ceccon Response to Counterclaim [82].

[319] Ceccon Response to Counterclaim [83].