Conacher v Crews - [2007] NSWDC 271

No judgment structure available for this case.

CITATION: Conacher & Ors v Crews [2007] NSWDC 271

HEARING DATE(S): 12, 13, 14, 15, 19 November 2007

JUDGMENT DATE:
13 December 2007

JUDGMENT OF: Rein SC DCJ

DECISION: 1. Judgment for 1st Plaintiff for $50,000 plus interest.; 2. Judgment for 2nd Plaintiff for $50,000 plus interest.; 3. Judgment for 3rd Plaintiff for $50,000 plus interest.; 4. Judgment for 4th Plaintiff for $99,900 plus interest.; 5. Crews to pay each of the Plaintiffs' costs of the proceedings.

CATCHWORDS: Purchase of shares on the basis of alleged misrepresentations about company and its products - Whether statements made, whether plaintiffs relied on statements in making decision to purchase shares - S.42 Fair Trading Act (s.52 Trade Practices Act) - Assessment of damages

LEGISLATION CITED: Fair Trading Act 1987
Trade Practices Act 1974 (Cth)

CASES CITED: Henville v Walker (2001) 206 CLR 459
I and L Securities v HTW Valuers (2002) HCA 41
Gould v Vaggelas (1985) 157 CLR 215
Wardley Australia v Western Australia (1992) 175 CLR 314
Gould v Vaggelas (1983) 157 CLR 214
Barley v Wartford (1846) 9 QB 197
Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950
HTW [2004] HCA 54; 217 CLR 640
Watson v Foxman (2000) 49 NSWLR 315

PARTIES: Peter Conacher (Plaintiff 1)
Peter Smith (Plaintiff 2)
Ralph Leslie O'Shea (Plaintiff 3)
Gregory Veivers (Plaintiff 4)
Terry Crews (Defendant)

FILE NUMBER(S): 2230/04; 2243/04; 3762/04; 4360/04

COUNSEL: Mr R Colquhoun (All plaintiffs)
Mr P Walsh (Defendant)

JUDGMENT

1 These proceedings concern a company called Multelink Australia Pty Ltd (which later became Multelink Australia Ltd) (“Multelink”) in which each of the plaintiffs purchased a parcel of shares. Mr R Colquhoun of Counsel appears for all four plaintiffs. By consent, all four matters were heard together and evidence in one was treated as evidence in the other.

2 The defendant, Mr Terry Crews (“Crews”) for whom Mr P Walsh of Counsel appears, was at all material times Chairman and Chief Executive Officer of Multelink, and the plaintiffs claim that Crews made statements about Multelink and a telephone known as a Smartphone which Multelink sold to the public, which statements induced them to buy their respective parcel of shares in Multelink and which it is claimed involved misleading and deceptive conduct by Crews in breach of s.52 of the Trade Practices Act (“TPA) and s.42 of the Fair Trading Act (“FTA”). The plaintiffs do not argue that any distinction between s.52 TPA and s.42 FTA is material and I shall therefore refer only to s.42 and other sections of the FTA.

3 There is no dispute that:

4 Multelink was placed in administration on 27 June 2003 and wound up in June 2005. There is no dispute that the Multelink shares held by the plaintiffs are now worthless.

5 There is no dispute that when the plaintiffs received their shares the transferor on the transfer sent to them was identified as Cosmical Pty Ltd (“Cosmical”). The plaintiffs had never heard of that company but had been told by Crews to pay the amount due for the shares to an account in the name of Grangeways Investments Pty Ltd (“Grangeways”), of which company also the plaintiffs had, until the time it was mentioned by Crews, never heard.

6 Grangeways is a company all of the shares in which were held by Crews: T225.56. As at 16 February 2005, the date of the ASIC search of Multelink appended to each of Crews’ affidavits, Grangeways is listed as holding (but not beneficially) 275,000 shares in Multelink, and holding 20 shares beneficially. When asked why the address given for Grangeways to ASIC was Crews’ own address:

A. Well, Grangeway was a company that I had. In fact, it was formed for me by Mr Barry Stones and it was there to hold the shares that were issued initially in Multelink as part of his negotiations that he was having with an overseas entity for the international rights. At the end of - I don't think Grangeway held them for much more than a month or so, and they were then transferred, as I recall, some to Cosmical and some to Barry Stones, and that's obviously part of how he negotiated an overseas agreement. None of the shares ended up in my name and--

Q. While we're - who were the shareholders of Grangeway Enterprises Pty Ltd at this time?
A. Myself.
Q. Only yourself?
A. I assume there was only myself, I'm not sure--

7 It seems to be agreed now that Multelink obtained from a company called Global Gateway Holdings Ltd the right to distribute in Australia the Smartphone. The Smartphone had a number of positive attributes such as a keyboard and LCD flip-up screen. For consistency all references to Multelink in the evidence have been amended to utilise the correct spelling and all references to the Smartphone made uniform.

8 There is a dispute as to how the Smartphone’s capacity to switch from one telephone carrier to another is properly described. The advertising material relating to the Smartphone contains the following statements (p.126, Exhibit C)

9 Crews admits that he made statements to a similar effect to many people including a journalist for Business Queensland who filed a report after interviewing Crews in July 2000: see Annexure A to O’Shea’s affidavit, but he says he did not make these statements to any of the plaintiffs.

10 At the hearing Crews explained how Multelink operated. It bought the Smartphones from Global Gateway Holdings Pty Ltd (“Global”) at $384 per phone. The phones were manufactured by Ness. Multelink sold the phones to the public for $449 plus a $65 installation fee (T201.14). The Smartphone could communicate with a server located at Multelink’s premises in Baulkham Hills. Multelink would endeavour to monitor information about offers by phone carriers such as Telstra and Optus for local, interstate and international calls and having obtained a price list from a number of carriers or providers (I shall return to the number below) it would then load the information into the server generally once or twice a day, select a best retail price for a carrier or provider with whom it had an agreement and then send that carrier’s number to the Smartphone to override the current choice set in the phone.

11 When the customer dialled a number the Smartphone would determine whether it was a local, long distance or international call and depending on its determination of type then select the carrier whose identity had been determined at the Multelink office and transmitted to the phone via the server.

12 Crews accepted that the loading of information into the server was manual and he seemed to accept that the phone had only what was sent to it by the server but he would not agree that the phone could not accurately be described as having the ability to automatically analyse the customer’s request and choose the cheapest rate: T233.54-T235.49, T255-257, particularly T256.8-14, T257.9-13.

13 Crews explained that Multelink would purchase time from the carriers at a wholesale rate and the customer would pay at the carrier’s best retail rate (or at least the best retail rate that Multelink staff could obtain using the resources available to them.) Thus to use a completely hypothetical example: if Telstra was offering a retail rate of 34 cents per minute for calls to the USA and Optus 30 cents per minute, for which Multelink might pay 15 cents a minute to Telstra, and 12 cents a minute to Optus, the customer would be given the 30 cents a minute rate and through wholesale purchase from Optus, Multelink would pay 12 cents a minute. The advantage to the customer was a lower retail rate than that which they might obtain from Telstra if that had been their provider and Multelink obtained the differential between the wholesale and retail rate.

14 There were limitations to the process however. First, it was dependent on Multelink having received the best retail rate from the carriers or providers. Secondly, it was dependent on Multelink being able to load that information into its server and arguably to load it with sufficient frequency as to be up to date: T206. Thirdly, it is clear that Multelink did not have agreements with all carriers and providers at all times: T205.9-41. There were some 27 or 28 carriers and providers . Multelink could only offer usage of a carrier or provider if it was able to reach agreement with that provider. The contrast between claims made by Crews in promotional material and the reality is neatly demonstrated by the answer Crews gave at T206.34-44 and see T205-T208 generally on this issue. See also Admission 17 in Exhibit D.

15 In my view the statements made about the phone would give the impression to a reasonable person that the phone was itself able to link to all providers and instantly determine which out of the 27 or 28 providers or carriers was offering the best rate for the call, and to choose that provider or carrier to call the number. I think it would not be at all obvious that Multelink was choosing which of the carriers the phone would use:

16 Each of the plaintiffs gave evidence as to what Crews said to them before they purchased the shares. Crews denied having spoken to any of them (other than Conacher) prior to them purchasing shares, save in answer to their request for bank account information and him advising them of the name and account number of Grangeways. In relation to Conacher, Crews says that he did see Conacher in Conacher’s capacity as a life insurance salesman because Multelink board wanted to insure Crews’ life for $10 million and he says Conacher came to Multelink’s premises and interviewed him for that purpose. Initially he asserted that he had no discussion with Conacher concerning an investment by Conacher in Multelink, (other than the savings that would have been made by purchasing the Smartphone, see para.16 of Crews’ affidavit) but later he seemed to accept that he had had discussions with Conacher about these matters: T259.25.

17 Conacher set out his conversations with Crews in his affidavit. Before speaking to Crews he had spoken to Smith with whom he was friendly (they are both financial planners) and a Mr Malcolm Payne (“Mr Payne”) who was a “business coach” who assisted Conacher in his financial planning and insurance business, Mr Payne having had extensive and successful employment as an insurance agent. They had told Conacher about Multelink’s Smartphone and that Crews was planning to list Multelink on the stock exchange. Conacher was interested in purchasing the phone and rang Crews and says he had a conversation in which Crews said words to the following effect:

“I have designed the system and what is does is that is scans all Telco providers and selects the cheapest rate from them in a microsecond and that is the rate you are billed. It will dramatically save your business and home use substantial amounts of money. The minimum investment I will take is $100,000.00. I will be doing a backdoor listing in the Stock Exchange within 12 months”.

18 Conacher says he told Crews he did not have $100,000 to invest but would like to try the phone system, to which Crews replied:

“The system or programme I have designed scans all providers 24 hours per day and picks the cheapest rate at the time. I am working on local call rates and linking all mobile phone rates. Telstra are worried and I have had talks with them about them buying me out but I will get far more money by listing and the rewards for my backers and shareholders will be far greater”.

19 Conacher says that Mr Payne or Smith told him that Crews had told them “your shares now are worth $100.00 each and I am still raising capital”

20 Conacher says that when he went to see Crews at Multelink’s premises he spoke with Crews about him investing in Multelink and Crews said:

“The smart phone that Multelink is promoting is my invention”; and
“ I am in a secure financial position and I am really a ‘Telco inventor’. I have designed many programmes and systems over the years and I am receiving royalties in relation to these programmes and systems. I am still raising capital and am selling down my shareholding in order to get the company fully operational and profitable before doing a ‘backdoor’ listing. The returns will be enormous as nothing even remotely similar to my scanning system has been invented”.

21 Conacher says that Crews said words to the effect that Multelink would list on the stock exchange in 6 months or so and certainly no later than 12 months (see paras 9 and 10 of Conacher’s affidavit).

22 Conacher says that before he purchased the shares, Crews said to him “I will let you have shares at $33.00 each in view of your relationship with Malcolm Payne and Peter Smith” (paragraph 11).

23 Crews said that Conacher rang him in or around March 2000 and said words to the effect:

“I have been talking to Malcolm Payne and I want to buy some shares in the company. He told me to contact you for the bank details”. (p.10 Crews affidavit).

24 In my view, Conacher was a witness whose honesty and credibility was unshaken in cross examination. He made concessions without hesitation and I do not think there was any aspect of his affidavit or evidence which was demonstrated to be wrong or unreliable. Mr Walsh conceded as much. I refer later to an argument advanced by Mr Walsh that the evidence of each of the plaintiffs was an unreliable reconstruction. Although I have regard to the fact that Conacher did not record in writing the conversations of which he complains until he prepared his affidavit five years after the investment was made and accept that his recollection would be affected by the passage of time, I do not accept that Conacher’s evidence can be seen as an unreliable reconstruction developed from looking at other material.

25 Although there are four witnesses who each gave evidence that if accepted established that Crews had said things common to some or all of the others, that Crews denies saying, I propose to defer dealing with the evidence of Veivers, Smith and O’Shea until after I have dealt with that of Crews in relation to Conacher’s purchase of shares.

26 Exhibit D is a document in which a number of admissions made by Crews by exchange of Notice to Admit Facts and a response were extracted.

27 I shall list the representations of fact and representations as to future matters in a paraphrased form for ease of reference, that Conacher says Crews made to him in the conversations to which I have referred:

(1) that Crews designed the Smartphone system (including the Smartphone itself)

(2) that the phone system (including the Smartphone) can communicate with all Telco providers and select the cheapest rate from them in a microsecond and that is the rate you are billed

(3) that the system will dramatically save your business and home substantial amounts of money

(4) that Multelink will be doing a backdoor listing on the Stock Exchange within 12 months

(5) that the system or program designed by Crews scans all providers 24 hours day and picks the cheapest rate at the time

(6) that Telstra is worried about Multelink and he had had talks with them about Telstra buying him out but he will get more money by listing and the rewards for any backers and shareholders will be far greater

(7) that the Smartphone was invented by Crews and Multelink was promoting that invention

(8) that Crews is a Telco inventor

(9) that Crews has designed many programs and systems over the years

(12) the public listing of Multelink would occur in 6 months or so but certainly no later than 12 months

(13) that he had already designed stages 2 and 3 of the telephone system and would “be able to simply roll out stage 2 and so on”

(14) that Crews would let Conacher have shares at $33.00 each in view of Conacher’s relationship with Payne and Smith.

28 The representations as pleaded are in similar terms to those above save for three matters. First, there is a representation pleaded that was not the subject of any evidence. The second matter is that pleaded representation (i) speaks of Multelink having a Smartphone and representation (iii) speaks of Crews “as owner of Multelink”. I shall refer to these two matters as

(15) Multelink owns the Smartphone

(16) Crews owns Multelink or a sizeable portion of the shares in Multelink

Item (14) is connected to (16) because what Crews said on Conacher’s version carries the sense that Crews controls the shareholding in Multelink.

29 The fact that Conacher did buy shares in Multelink and did pay money into Grangeways account is not disputed. Crews denied that he said what is set out in (14) and this denial is very significant because although he admits that he told Conacher and the other plaintiffs to pay the monies into the Grangeways account and gave them the name and number of the bank account he said in his oral evidence that he was not selling shares and he was not getting any benefit out of the sale of the shares. Later in his evidence at T253.15 Crews asserted that he had had a conversation with Mr Payne in the following terms:

Mr Payne: “Peter Conacher is going to buy some shares. Make sure he gets them at the right price”.

30 I enquired of Crews what his response to that instruction was and he said (at T253.30):

“I said ‘Well, what price have you told him?’ and that then Mr Payne replied ‘$33 or whatever it was’”.

31 Crews explained that he had to ask Mr Payne what the price was because at the time “there were some shares going out at $50” and “Mr Payne was aware of that”: T253.40.

32 The thrust of Crews’ affidavit and the opening on his behalf had been that he did not have conversations with any of the plaintiffs before giving them the name and bank account of Grangeways, and hence had not said what each of them claimed he had said. The plaintiffs were cross examined to the effect that Mr Payne had encouraged them to invest in Multelink and that they were impressed with the fact that Mr Payne and other persons of some note in the Grand Golf Club were investing in Multelink and that there were other matters that were the factors that led them to invest – it was never put to them that they were buying shares in Multelink from Mr Payne or someone connected with Mr Payne and that Mr Payne had struck a deal with them on the price. Mr Walsh conceded that Crews’ evidence about an involvement of Mr Payne beyond encouraging the investment and at the same price he paid or was paying, was ‘out of the blue’. Crews’ affidavit was completely silent about how he came to be giving the plaintiffs details of the Grangeways account. There was no corroboration of Crews’ evidence as to who was the beneficial owner of the Multelink shares held in Grangeways name on the ASIC register, nor as to who owned shares in Cosmical. The ASIC search of Multelink shows former holdings of shares by Cosmical as beneficially held. Crews said he thought that the owners of shares in Cosmical – a company registered in Switzerland were clients of the company secretary Mr Barry Stones: T200. At T43 Mr Walsh said he had been informed by his client in the past that there were a group of investors associated with Carlton football team and then said he was instructed that they were “people in Switzerland”. O’Shea says he asked Crews why the transferor was shown as Cosmical, and that Crews told him “it was for taxation purposes”: T42.24. On the ASIC search of Multelink, Grangeways is not shown as having owned any parcel of shares no longer held by it.

33 Crews gave some further evidence in cross examination as to his role and to which I need to refer. At T220.15-T222.54:

Q. When you were then trying to get people to buy shares in Multelink, this was the sort of information you were telling them, wasn't it?
A. No.

Q. What were you telling them?
A. In November, there was no one trying to get people to buy shares in Multelink.

Q. Weren't you?
A. No.

Q. When do you say that you were first trying to get people to buy shares in Multelink?
A. The position for people - and, again, for people to buy existing shares from shareholders was always a matter for existing shareholders to decide when they were going to sell their shares. As far as Multelink was concerned in raising capital by the issue of new shares was some time after that. There's, you know, a very clear distinction here that - I don't want to be lumbered with giving you an answer based on, you know, what shareholders wanted to do with their shareholding.

Q. You were actively trying to get people to buy shares in Multelink, weren't you, in November 1999?
A. No.

Q. In December 99, you were actively trying to get people to buy shares?
A. I wasn't, no.

Q. What, were you acting as some sort of broker, were you, of people selling and buying shares in Multelink at that time?
A. No, as chairman, if any shareholder came along and said, "I'd like to sell my shares," and if someone puts up their hand to wanted them I'd pass the information.

Q. You were more than just passing on information, weren't you? You told people - like you told Peter Smith, for instance - to deposit $99,990 into the bank account of Grangeway Enterprises for the purpose of purchasing shares in Multelink.
A. On the request from him, as to where he needed to send some funds for a purchase he'd made from Cosmical Holdings.

Q. Why were you acting as some sort of in between person for Cosmical Holdings or Grangeway Enterprises?
A. Well, it was - I assume that the particular shareholder believed that the chairman could be independent, and would handle the stake and pass it on at his direction. It was an overseas company. It didn't want to have money going overseas and then coming back. As I understand it, the reason that Cosmical was selling these shares was to try and honour their obligation to Global Gateway Holdings to distribute product overseas. They needed some capital and they figured that it was easier to sell their shares, raise the capital, and provide funds to Global.

34 At T223.56-T225.15 dealing with his conversation with Mr Smith:

Q. So he rings you, and what's the conversation, to the best of your recollection?
A. Malcolm Payne has asked me to ring you to find out where to deposit the funds for some shares that I've bought.

Q. Anything else?
A. That's about it.
Q. There was no mention - and what did you say?
A. I gave him the bank account details.

Q. You said, "It's the Grangeway Enterprises account," did you, the BSB number and the account number?
A. Yep.

Q. That's it?
A. Yep.

Q. Was that the whole conversation?
A. Near as damn it.

Q. Was there any discussion as to when the money would be paid into the account, for instance?
A. No.

Q. Was there any discussion as to the amount of money to be paid into the account?
A. No.

HIS HONOUR
Q. Did it strike you as odd that…
A. Very.

Q. I see, because can you - I can't really understand why Mr Payne would be asking people to ring you if he was selling the shares on behalf of someone else or on his own behalf.
A. As I said at the beginning the vendor asked me to receive the funds and pass them on to Global.

Q. Why you? Why did you need to receive the funds if
A. Because I was the chairman.

Q. But you didn't own the shares?
A. No, I didn't own the shares.

Q. You didn't own a company that owned the shares?
A. No.

Q. Mr Payne or some company that he was connected with owned the shares?
A. Well, I think he was acting as an agent.

Q. Why would he need you to be involved in that?
A. Well, they needed wanted some - I really don't know.

35 Crews gave no explanation as to why Grangeways, being his company and one which was formed for him, would be holding shares beneficially for Mr Stones as a result of discussions Mr Stones was having with an overseas company for the international rights.

36 In dealing with the O’Shea matter in his affidavit, Crews says that he received a call from Veivers some time after Veivers had bought shares in Multelink, in which Veivers said: “a friend of mine, Ralph O’Shea wants to buy shares in Multelink. Make sure you look after him and give him shares at the old price or else. Tell him where to send the money, he wants to buy $50,000 worth”. Crews does not assert that he said anything in reply to that (see paragraph 7 of his affidavit of 11 August 2005).

37 If Crews had never had a discussion with Veivers in which Veivers was led to believe that Crews was selling shares in Multelink on his own behalf but rather had had discussions with Payne whereby Payne agreed to sell shares in Multelink, the conversation with Veivers which Crews asserts occurred is inexplicable. Veivers denies that he had such a conversation with Crews but it is revealing that Crews advances it as what Veivers said to him. Crews did not assert in his affidavits that any of the plaintiffs had told him that they had bought shares or agreed to buy shares from Payne, nor did he give such evidence in cross examination.

38 The absence of any prior evidence of Crews that he was a mere post box for sale of shares by others at a price he had no involvement in setting, and Crews’ oral evidence about this leads me to have considerable doubt as to Crews’ veracity. The version about the sale of shares that he propounded for the first time in the witness box seemed improbable and designed to create the impression that he had no reason to make representations because he was not involved in selling shares. There is no dispute that the money for each of the plaintiff’s purchases was deposited into an account of a company in which Crews held all of the shares. No evidence has been lead that corroborates Crews’ assertion that the money received by Grangeways was paid to Global on behalf of Cosmical or at all. From Annexure A to O’Shea’s affidavit and see T266.20-T267.4, it appears that Crews told Rowan Roebig that he owned shares in Multelink.

39 Crews has been shown to have made representations about the Smartphone which were false and I do not accept that his attempts to justify those misleading statements were successful. That is a further matter which undermines his veracity in relation to these other matters.

40 I have referred to Crews’ change of position in respect of conversations with Conacher.

41 Crews said at T240 that he rarely said he was the inventor of the phone and that it was irrelevant, but he agreed he had said it saying at T240 “obviously to get my deal”. At T241.36 he agreed that he was a “telco inventor”, but he had by Admission 16 Exhibit D, admitted that he was not. At T219.6 he agreed that he puts himself forward as the inventor of the Smartphone. At T248.30 in answer to a question as to whether he regarded himself as a good salesman he said “I’m passionate about what I’ve got and if that passion relates to people deciding whether a product or whatever it is, is good, well, so be it”.

42 At T202.55 Crews said that Multelink did not pay royalties but at T209 he said there may have been.

43 At T255.49 he asserted that Multelink’s advertising literature claims that the phone would achieve the best price and not that it would select the cheapest rate from all 27 carriers but I have set out at [8] what was said about this in Multelink’s literature, and see Annexure A to O’Shea’s affidavit.

44 Crews attempted on a number of occasions to distance himself from what has been said and done on behalf of Multelink and himself. Given his role as Chief Executive Officer and Chairman of the Board, and his very significant involvement in media activity on behalf of Multelink (see Exhibit C, p.37, evidence about A Current Affair and Annexure A to O’Shea’s affidavit) this seemed artificial. Some examples of this distancing: -

(1) When first asked about the Multelink Newsletter he said it was being sent out “by the company” not him: T196.20 and said it was prepared more than likely by Multelink’s advertising agency – the newsletter has a photograph of him on it and is signed by him: see p.37 Exhibit C.
(2) The issue relating to the sale of the shares to which I have already referred in which he presents himself as selling no shares and describes the significant parcel of shares held by his company as held on trust briefly, for others unconnected with him.
(3) When asked whether he had the intention that Multelink would become a public company he would not agree that that was his intention: T193.36-57 but see T197.42-57 where he initially would not agree that he had formed the view that Multelink should list on the ASX, but then agreed that he did on advice from “the experts”.

45 The distancing was also evident when it comes to Exhibit A to Smith’s affidavit, “Points on Multelink Opportunity” (which I shall refer to as “the Points document”). This document was sent by Payne to Smith but it emanated from Multelink and Payne wrote on it before sending it to Smith. The initials in handwriting on the left hand bottom corner refer to persons who were going to invest or had invested in Multelink and some of those names were known to Smith.

46 Crews said that the distribution of the document was limited to directors and shareholders: see T284.25-30 and that Mr Payne was a shareholder.

47 The Points document contains statements about Multelink that at the time, Crews admits, were wrong. His explanation is that the document was only a discussion paper:T284.29 and T287.51-55 although his explanation as to how it was compiled was vague: see T284.10-23 Crews said he had not sent the particular document to Payne: T284.16 but his attempt to distance himself from the despatch of the document was quite unconvincing. The points document contains the following representations:

(17) In March 1999 Sino (an investor in Multelink) had an independent expert report that valued Multelink at somewhere between $30-$60 million even before the company was operational and the business product (i.e. the Smartphone) was not in the original plan
(18) That with the business product selling the Smartphone to 3000 customers would make the company profitable
(19) A float for $100 million was planned for March 2000

(20) Multelink will be in profit by March 2000

(21) Multelink has a unique product

48 Crews said that [47](18) was wrong, and it would need 7000 customers to make Multelink profitable.

49 Crews’ evidence at T287.43was that a float for $100 million was not planned for March 2000, so [47](19) was a false statement if made.

50 Crews agreed that the company’s value was not, as at January 2000, $100 million: T283.25 and that he thought the Sino view (or what he described as the Sino view) of Multelink’s value as at December 1999-January 2000 was wrong: T286.39

51 Conacher, Veivers and O’Shea are not suing Crews on the basis of representations contained in the Points document but what the document says is relevant not only to Smith’s case but because it demonstrates what was being said by those connected to Multelink. I find that the Points document was sent out from Multelink to Mr Payne (who was not a director at the time) and sent on by Mr Payne to Smith. I doubt that the document was ever intended only as a discussion paper, since it was sent to shareholders and I draw the inference that it was sent by Crews or with his knowledge to Mr Payne so it could be passed on to people like Smith i.e. potential investors who would have understood it as a promotional item relevant to potential purchase of shares in Multelink.

52 I prefer the evidence of Conacher to that of Crews. I do not think that Crews was a reliable witness whereas I am of the view that Conacher was. I am satisfied that Crews made representations in the terms set out in [27](1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), and [28](15) and (16).

53 So far as [27](2), (5), (6), (7), (8) and (9) are concerned I am satisfied either on the basis of admissions contained in Exhibit D or on the basis of admissions by Crews in the witness box that these representations were not true and hence involved misleading and deceptive conduct on the part of Crews. So far as [27](6) is concerned I am dealing here with that part that relates to the past and not the future.

54 So far as [27](4), (6) in part, (11), (12) and (13) these are representations as to future matters and s.41 of the FTA is relevant to that. No evidence from Crews establishes that he had a reasonable basis for making the representations in [27](4), (6), (11), (12) and (13).

55 So far as [28](15) is concerned I think what was said coupled with the absence of any clear statement to the contrary, would give the impression that the Smartphone technology had been developed and or was owned by Multelink. It is clear that the Smartphone was not owned by Multelink and that all it owned was the right to distribute the phone in Australia and to use the server software in connection with the phone. Global owned the rights to the Smartphone technology and Crews owned the software technology for the server which although it had been licensed to Multelink was of little benefit to Multelink without the Smartphone.

56 So far as [28](16) is concerned, I find that [27](14) was said as was what is contained in [20] and hence that [28](16) is established to have been represented. There is no evidence that Crews owned any shares in Multelink. He owned Grangeways which held shares but on the ASIC listing only 20 of those shares were held beneficially. I find it difficult to believe that Grangeways did not own the shares in Multelink beneficially but if Crews did not own directly or indirectly through Grangeways anything other than a token holding he did not own or control Multelink and the impression created that he owned or controlled the shares or most of the shares in Multelink was a false one – a relevant matter where he was promoting the phone as his invention (implicitly owned by Multelink) and the business as likely to be profitable based on the Smartphone, its potential both in Australia and overseas and his extensive experience, and hence worth investing in.

57 Causation was raised as an issue. Mr Walsh’s submissions pointed to the need for the plaintiffs to prove that such loss or damage as was suffered by them was caused by conduct found to be in breach of the Act. Mr Walsh contended that s.82(1) TPA (and hence s.68(1) of the FTA) required application of a common sense concept of causation save where the concept was modified expressly or implicitly by the Act. He pointed to the words of McHugh JA in Henville v Walker (2001) 206 CLR 459 at [106]:

“If the defendant’s breach has ‘materially contributed’ to the loss or damage suffered it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage”.

58 Mr Colquhoun pointed out that the offending conduct need not be the only cause of the plaintiffs’ loss or damage. He referred to I and L Securities v HTW Valuers (2002) HCA 41, Gould v Vaggelas (1985) 157 CLR 215 and Wardley Australia v Western Australia (1992) 175 CLR 314 and submitted that it was sufficient if the impugned conduct played some part, even a minor part. I have had regard to the helpful restatement of principles by Wilson J at p.236 of Gould v Vaggelas in the following terms:

and see p.236-239 (with whom Gibbs CJ agreed p.219 and see Brennan J p.252-253) and note that shortly after the passage cited above from Henville, McHugh J approved the principles found in judgment of both Wilson J and Brennan J (as he then was). In Henville the Court found that there were two causes operating on the mind of the plaintiff – what he had been told by the defendant, and what he had erroneously calculated quite independently of the defendants.

59 Much of what Mr Walsh’s submissions went to were other matters that had influenced the plaintiffs’ decision to buy the shares – Mr Payne’s involvement, the fact that at least one well-respected Queensland businessman had invested in Multelink, and the attractive features of the phone. I think that it is clear that a number of factors were at work but statements made by Crews which breached s42 of the FTA were of a type which were intended to encourage purchase of shares and I accept did with the other matters lead the plaintiffs to purchase shares.

60 Mr Walsh argued that there was no causal relationship between the misrepresentations (if found to be made) and the purchase of the shares by Conacher. It is true that Conacher conceded that he was impressed by a number of matters – the phone itself, the offices from which Multelink conducted its business, the fact that people he respected or knew to be significant were investing in Multelink but his evidence was that what had been said to him by Crews played a part. I see nothing surprising about that assertion – the statements made by Crews and which I have found to be misleading were in my view designed to impress and encourage the notion that Crews was a serious identity in the telecommunications market who had through his company Multelink designed and developed a remarkable product or system that automatically searched all carriers for a best price and which had caused Telstra to approach Crews with a view to buying him out. Crews seemed to think it extraordinary that anyone could imagine that a phone or a system could automatically search all carriers: see T206.34-44 but that is just what he said it did through his statements and Multelink advertisements.

61 There was advanced an argument that Crews was not known by any of the plaintiffs and that they had no reason to believe what he said. O’Shea, a former bank manager for example agreed that he did not know Crews personally or by reputation: T45 and he said that he had confidence in Crews because of what he had read in the paper and seen in the video, and what Crews said about himself. This sounds rather akin to an argument that the plaintiffs were foolish to believe Crews – they may well have been but it has never been a defence to a claim for deceit that the person to whom the representation was made was unwise or even negligent to act upon what he or she was told: see Gould v Vaggelas (1983) 157 CLR 214 at 252 per Brennan J: “A knave does not escape liability because he is dealing with a fool” and Barley v Wartford (1846) 9 QB 197 at 209, and the other cases cited at fn 3 to page 218 of Spencer Bower’s Actionable Misrepresentation, Turner 3rd Edition, Butterworths, 1994. The same position pertains to misleading and deceptive conduct claims: see Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514,525 although causation for TPA purposes is not necessarily limited by the common law concept of inducement see Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950.

62 If the argument is rather that because reliance was so foolish that it could not possibly be accepted that those misstatements led the plaintiffs to purchase shares, I do not accept that submission. In the context Crews was presenting himself as the inventor of a very sophisticated phone developed by or at least owned by Multelink, which it appeared did achieve benefits to customers although not in the manner represented. Crews, Veivers said, was “as smooth as a three-egg custard” and all of the plaintiffs appear to have been taken in by him thinking his company (or what they were lead to believe was his company) to be a very worthwhile investment. It is true that all four plaintiffs were involved in the area of financial planning and insurance brokerage and might be expected to have more than a modicum of financial acuity, but it is perhaps a testament to Crews’ skills that they believed what he told them and allowed the sparkle of new technology and prospective profits to blind their judgment.

63 Nor is it a defence to say that others made similarly misleading statements to the representee, quite apart from the question of whether those other persons had been told by the representor what they passed on to the representee.

64 Although it was clear that the shares are now worth nothing, there was argument that the plaintiffs had failed to show that the shares were worthless at the time of purchase.

65 To establish that as at the time of purchase of the shares they were worth nothing, the plaintiffs relied on the evidence of Mr Frank Kelly, a valuer. He said that the shares were worth nothing as at 2006 and that there was nothing to indicate that they had ever been worth anything. In cross examination, Mr Kelly agreed that his approach was that since 2006 the shares were worthless they had always been worthless: T154. Mr Walsh argued that this process of reasoning is so flawed as to render the report of no persuasive force, and that since there was no credible evidence of what the shares were worth when purchased the plaintiffs have established no loss.

66 I do not think that the proposition that because shares are as at 2006 worthless they must have been worthless in 1999 or 2000 when purchased can be sustained as a matter of logic. The value of shares fluctuates over time dramatically and not every company that ends up in liquidation was always destined for disaster. Technologies and market conditions change and what was once valuable may cease to be and in the technology area particularly, market changes can occur rapidly.

67 In a claim under s.42 of the FTA the remedies include that contained in s.68 of the Act. The critical question is what loss or damage each of the plaintiffs who establishes that Crews engaged in misleading conduct suffered by reason of that conduct. Conacher has paid $50,000 for shares that it is agreed now have no value. It is not suggested that at the time Conacher became aware of the misrepresentations he could have sold his shares for value but chose not to do so. There may well be cases in which it is established that the party mislead into buying an item or subscribing for a benefit has not suffered any loss because he received an asset worth what he paid for it (or even more) but there is no evidence that supports the proposition that these shares objectively had any real value when purchased and in this case I think the appropriate way to assess Conacher’s loss is to award him the amount he paid over induced by the misrepresentations made by Crews, less what is ‘left in his hands’ and what is left in his hands now are shares which it is agreed have no value: see HTW [2004] HCA 54; 217 CLR 640 [63]-[67].

68 It follows that in my view Conacher is entitled to $50,000 plus interest.

69 Veivers, in his affidavit, says that in a telephone conversation in about November 1999, Crews made various statements to him, see paras 2-10. I will detail the essence of what he says Crews said to him as follows:

(1) that the general public will be purchasing shares in Multelink at the going rate of $100 each, but as Veivers was a good friend of Payne and Smith “I will sell them to you at $33.33 each”.
(2) Multelink has a Smartphone “it has the ability to seek out the cheapest cost from all providers and this includes overseas calls. This process is automatically achieved through the state of the art system of the Smartphone”.

(3) That Crews had also brought Teletext to Australia

(4) That Crews had set up Optus here

(7) The shares would be much dearer after the company floats.

70 Crews denies that he had any of the conversations alleged or indeed any conversation other than one in which Veivers said “I have been talking to Malcolm Payne and I want to buy some shares in the company. He told me to contact you for the bank account details” and in which he gave Veivers the bank account details and the conversation relating to O’Shea which I have set out earlier.

71 Crews admitted that he did say words similar to [69](2) and (5) to people, but denies that he said them to Veivers before Veivers bought shares. Crews admits that [69](3), (4),(9), (10), (11), (12), (13), (14), (15), (17), (18), (19) and (20) were not true statements (again whilst denying that he said them to Veivers or to anyone). He appears to accept that the statement that the public would be buying shares at $100 ([69](1)) was not a true statement.

72 So far as [69](1), (6), (7) and (16) are concerned, Crews agreed that he had wanted to list Multelink, but he denied that the board of Multelink had made any decision to do so as at December 1999, or that he had said that it would occur.

73 So far as [69](18) is concerned the combination of Admission 7 (Exhibit D) and Crews’ evidence that Cosmical had the right to sell in Europe establishes that Multelink did not have anyone seeking European rights since those rights were not Multelink’s to give and Global had given these rights to Cosmical.

74 Once again it will be seen that on Veivers’ evidence he rang Crews to discuss purchase of the shares in the company and on Crews’ version all Crews did was say the name of the account, the number, and the bank branch.

75 Veivers was cross examined quite extensively about his version of events. Veivers had altered his affidavit to change ‘face-to-face’ to telephone conversation in paragraph 2. Mr Walsh submitted that this fact and the fact that Veivers said that one of the conversations with Crews had taken place in the presence of Smith and that Smith did not confirm this, and that Veivers’ affidavit seems to be referring to one conversation whereas in cross examination Veivers spoke of conversations, pointed to Veivers’ unreliability and the conversations being work of reconstruction. There was a long gap between the investment and preparation of the affidavit, requiring I think caution but whilst there may be some doubt as to the precise sequence of conversations leading up to the investment overall I thought that Veivers was a credible and honest witness who answered in a forthright manner and made concessions where appropriate without obfuscation. I have already commented on Crews as a witness. I would prefer Veivers’ evidence to that of Crews wherever it is in conflict.

76 I find that Crews did make representations [69](1)-(21) and that (apart from [69](8) and (15)) insofar as they were representations of fact they were false and in so far as they involved representations of future matters Crews has not demonstrated that he had reasonable grounds for making them.

77 It follows that Crews has engaged in misleading and deceptive conduct viz a viz Veivers.

78 For the reasons I have already dealt with in relation to Conacher, I am satisfied that although Veivers was induced to purchase shares in Multelink for a number of reasons, amongst those reasons was a belief, induced by the misleading and/or deceptive conduct of Crews in representing that the Smartphone was a very attractive commercial product which had the features that Crews claimed for it and was owned by Multelink and that the shares Veivers was buying had a very significant value and would increase in value because of the very advanced features of the phone, the pedigree of Crews, and the interest in the business which Crews described.

79 I am satisfied that Veivers is entitled to damages calculated in the same manner as I have earlier described in relation to Conacher, pursuant to s.68(1) of the FTA

80 I turn now to the case of O’Shea. The representations which O’Shea asserts were made by Crews in June 2006:

(1) that Crews had invented the Smartphone telephone system
(2) that the telephone system selects the cheapest call rate every time the customer makes a long distance phone call
(3) that Crews was looking for seed investors to get Multelink started
(4) that Crews was preparing Multelink to be floated as a public company in six weeks and
(5) that Multelink would be backdoor listed on NASDEQ in September 2000
(6) that as O’Shea was a friend of Veivers he would sell O’Shea shares which he owned at $33.33 provided he invested $50,000
(7) that through the article Crews said that Multelink had developed a world-first telephone which automatically selected the cheapest call rates for long distance and international calls
(8) that Multelink guaranteed to find the cheapest rates across all 27 phone companies
(9) that updated call rates are downloaded to the Smartphone automatically
(10) that Crews had been a key player in the IT industry
(11) that Crews was a highly experienced technological professional formerly with CEC, Olivett, Vital Technology Eftel and Cable and Wireless and Optus

81 O’Shea’s reliability was attacked on a number of grounds

(1) O’Shea said the conversations were no longer than 2 or 3 minutes in length: T44
(2) That O’Shea in cross examination said he had relied on a video provided to him by Crews: T44.23-28. He gave no satisfactory explanation as to why he had not referred to the video in his affidavit: T39.43-50
(3) The video that O’Shea claimed he had been given, was, according to O’Shea, given to O’Shea the weekend before the hearing – being one that Veivers received from Crews and had only recently located: T73.79
(4) There is no mention by O’Shea in his affidavit of the detail of his conversations with Mr Payne
(5) O’Shea had no notes of his conversations with Crews. He had only first attempted to recall the conversations five years after they had occurred.

82 Mr Walsh submitted that O’Shea’s evidence “bears all the hallmarks of reconstruction” described by McClelland J in Watson v Foxman (2000) 49 NSWLR 315.

83 In Watson v Foxman McClelland J said:

“Where, in civil proceedings, a party alleges that the conduct of another was misleading or deceptive, or likely to mislead or deceive (which I will compendiously describe as “misleading”) within the meaning of s.52 of the Trade Practices Act 1974 (Cth) (or s.42 of the Fair Trading Act), it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience. Each element of the cause of action must be proved to the reasonable satisfaction of the court, which means that the court “must feel an actual persuasion of its occurrence or existence”. Such satisfaction is “not…attained or established independently of the nature and consequence of the fact or facts to be proved” including the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”: Helton v Allen (1940) 63 CLR 691 at 712. Considerations of the above kinds can pose serious difficulties of proof for a party relying upon spoken words as the foundation of a cause of action based on s52 of the Trade Practices Act 1974 (Cth) (or s42 of the Fair Trading Act), in the absence of some reliable contemporaneous record or other satisfactory corroboration.”

84 I am not satisfied that O’Shea did receive the video before he invested although it is likely that he did see the video at some stage I think O’Shea’s evidence needs to be treated with some caution. I do not think that the fact that the conversations were assessed as short tells against them being accurate. I accept the submission that O’Shea did attempt to minimise the role that his discussions with Mr Payne played in his decision to invest. So far as the absence of notes are concerned I do not think that this is all that significant since there is some independent material which corroborates O’Shea’s evidence. The evidence of Conacher and Veivers corroborates O’Shea’s evidence in the sense of being evidence that Crews was making similar such statements to investors. On the question of causation to which I have earlier made reference emphasis was laid on O’Shea’s admissions as to his reliance on what Veivers had told him and I think these admissions were supportive of O’Shea’s credit. Whilst there were some parts of O’Shea’s evidence that might cause me to doubt his veracity they were not of sufficient significance to lead me to reject his evidence where it is in conflict with Crews’ evidence.

85 There are some important differences between the situation in Foxman and this case. The bank manager did not dispute that he had discussed various aspects of the proposed site – what was asserted to have been said was a promise or representation akin to a promise that was surprisingly wide in scope. Here, Crews denies discussing with the plaintiffs any proposal to purchase shares. Some of what is asserted (and denied) are specific statements about the Smartphone and the shares, which it has been conceded by Crews he said to others and even to the plaintiffs after they had bought shares and which it has been demonstrated were made to a much wider audience. Much of what each of the plaintiffs assert is of a similar type said on different occasions – and there is a document which clearly emanated from Multelink in December 1999 which contains material not dissimilar to what it is asserted by the plaintiffs that Crews said.

86 Whilst I accept that there is a need for caution in dealing with recollections of conversations held five years before, that caution does not lead me to conclude that the evidence of the plaintiffs is unpersuasive. What is asserted by the plaintiffs to have been said by Crews is sufficiently precise to enable the question of whether it was misleading or not and whether what was said as to future matters has been shown to be reasonably based, to be determined.

87 In my view, O’Shea has established on a balance of probabilities that the representations of which he complains, [80](1), (2), (4), (5), (7), (8), (9) and (10) were made and were not true in so far as they related to existing or past matters. For reasons similar to those I have already dealt with in respect of Conacher and Veivers I am satisfied that the conduct was misleading and deceptive conduct within the meaning of s42 of the FTA and that those representations made were part of the reason that Veivers made the decision to purchase the Multelink shares.

88 Smith in his affidavit claims that Crews made statements to him (in a face to face meeting, and at a public meeting in November 1999) – which I take from paragraph 2 of his affidavit but paraphrase:

(1) the public are being offered shares at $100 per share but as Smith was a good friend of Paynes he would give Smith a special deal and he would buy the shares at $33.33 each – which Crews would sell him
(2) Multelink had some big investors who wanted to purchase the shares to be issued but he, Crews, wanted small investors to have the opportunity to make a fortune
(3) Multelink has a Smartphone which is the only one of its type in the world and it will automatically reach out and search the world telecommunications market for the cheapest phone rate
(4) all the technology is in the phone and that is what gave Multelink the competitive edge
(5) Multelink has a programme inbuilt to search out the best available price at the time a telephone call is being made from amongst all service providers and it will automatically take up the cheapest call at that particular time.
(6) Crews was responsible for bringing Teletext to Australia and implementing the system here
(7) Crews was responsible for setting up Optus in Australia

89 Smith says on 19 December 1999 he received the Points document and that by it, Crews represented:

(8) that a float of Multelink for $100 million was planned for March 2000
(9) that the float for $100 million would be for 10% of the capital of Multelink

90 He also said that in another communication Crews represented that

(10) only 3000 customers would be needed to make the Smartphone profitable
(11) that a well known politician would be appointed to the Board

(12) that Visy and Barter were organised to become customers

(13) that Multelink would list on the Australian Stock Exchange in the next 12 months

91 Smith says that in December 1999 Crews said to Smith:

(15) “You have to get your money in before the end of the year because the company’s going to list shortly”.

92 Mr Walsh launched a significant attack on Smith’s credibility. Included in the attack attention was drawn to the fact that Smith asserted in cross examination that he had a number of telephone conversations with Crews in which the statements were said to have been made rather than in a face to face meeting: T119-125. The absence of reference to Mr Payne, the lack of contemporaneous notes, and the length of time passing from events to affidavit were again highlighted. One additional matter was the description of the receipt of the Points document. Smith said he had received the Points document from Crews. It is clear that the Points document was actually sent to him by Mr Payne – it has Mr Payne’s fax number and Mr Payne’s handwriting on it.

93 However the document did emanate from Multelink. Smith should have said that Mr Payne sent it on to him, but he was entitled to think that Crews had sent it out to Mr Payne in order that Mr Payne could forward it to him and I do not see the distinction as seriously undermining Smith’s credibility.

94 Smith, I thought, was the least credible of the plaintiffs but whilst there appeared to be an element of reconstruction as to timing and place in his affidavit I am satisfied on the balance of probabilities having regard to all of the evidence and considering his evidence in contrast to that of Crews that he did have conversations with Crews before he bought the shares in which Crews said to him words to the effect to which he deposes.

95 So far as the representations are concerned [88](1), (3), (4), (5), (7), and [89](8) and (9) and [90](12) and (14) are established by admission or evidence to be false. So far as [90](10), (11), (13) and [91](15) are concerned, these are statements as to future matters and Crews has not shown them to be reasonably based.

96 I accept that Smith was induced to buy the shares by reason of a number of matters but I am persuaded that amongst the reasons were the statements made by Crews, which were of a kind designed to induce Smith to purchase shares in Multelink.

97 It follows that in my view, Crews engaged in misleading and deceptive conduct in breach of s.42 of the FTA and that conduct has caused Smith loss.

98 For reasons discussed earlier in relation to Conacher, I am of the view that Crews should repay to Smith the amount paid by Smith to Multelink for the shares.

Conclusion

99 There should be judgment for Conacher in the amount of $50,000 plus interest.

100 There should be judgment for Veivers in the amount of $99,900 plus interest.

101 There should be judgment for O’Shea in the amount of $50,000 plus interest.

102 There should be judgment for Smith in the amount of $50,000 plus interest.

103 Crews should pay each of the plaintiffs’ costs of the proceedings.

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Citations

Conacher v Crews [2007] NSWDC 271

Cases Citing This Decision

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Henville v Walker [2001] HCA 52

Burrell v The Queen [2008] HCA 34

CITATION:	Conacher & Ors v Crews [2007] NSWDC 271
HEARING DATE(S):	12, 13, 14, 15, 19 November 2007
JUDGMENT DATE:	13 December 2007
JUDGMENT OF:	Rein SC DCJ
DECISION:	1. Judgment for 1st Plaintiff for $50,000 plus interest.; 2. Judgment for 2nd Plaintiff for $50,000 plus interest.; 3. Judgment for 3rd Plaintiff for $50,000 plus interest.; 4. Judgment for 4th Plaintiff for $99,900 plus interest.; 5. Crews to pay each of the Plaintiffs' costs of the proceedings.
CATCHWORDS:	Purchase of shares on the basis of alleged misrepresentations about company and its products - Whether statements made, whether plaintiffs relied on statements in making decision to purchase shares - S.42 Fair Trading Act (s.52 Trade Practices Act) - Assessment of damages
LEGISLATION CITED:	Fair Trading Act 1987 Trade Practices Act 1974 (Cth)
CASES CITED:	Henville v Walker (2001) 206 CLR 459 I and L Securities v HTW Valuers (2002) HCA 41 Gould v Vaggelas (1985) 157 CLR 215 Wardley Australia v Western Australia (1992) 175 CLR 314 Gould v Vaggelas (1983) 157 CLR 214 Barley v Wartford (1846) 9 QB 197 Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514 Kabwand Pty Ltd v National Australia Bank Ltd (1989) ATPR 40-950 HTW [2004] HCA 54; 217 CLR 640 Watson v Foxman (2000) 49 NSWLR 315
PARTIES:	Peter Conacher (Plaintiff 1) Peter Smith (Plaintiff 2) Ralph Leslie O'Shea (Plaintiff 3) Gregory Veivers (Plaintiff 4) Terry Crews (Defendant)
FILE NUMBER(S):	2230/04; 2243/04; 3762/04; 4360/04
COUNSEL:	Mr R Colquhoun (All plaintiffs) Mr P Walsh (Defendant)