Cross v Queensland Newspapers Pty Ltd - [2006] NSWSC 1340

No judgment structure available for this case.

CITATION: Cross v Qld Newspapers Pty Limited [2006] NSWSC 1340
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 09/10/06, 10/10/06, 11/10/06, 12/10/06, 13/10/06, 16/10/06, 17/10/06, 18/10/06, 19/10/06, 20/10/06, 23/10/06, 24/10/06, 25/10/06, 26/10/06, 27/10/06, 30/10/06, 31/10/06, 01/11/06, 02/11/06, 03/11/06, 06/11/06, 07/11/06, 08/11/06, 09/11/06, 10/11/06, 14/11/06, 15/11/06, 16/11/06,17/11/06

JUDGMENT DATE :
6 December 2006

JURISDICTION: COMMON LAW - Defamation List

JUDGMENT OF: Cooper AJ at 1

DECISION: Judgment in favour of the defendant against the plaintiff on each of the imputations sued upon.

CATCHWORDS: Substantial truth

LEGISLATION CITED: Defamation Act 1974 (NSW)
Defamation Act 1889 (QLD)

PARTIES: Ronald Malcolm Cross
Queensland Newspapers Pty Limited

FILE NUMBER(S): SC 20191/03

COUNSEL:
Mr C Evatt/ Ms J Rawlings for Plaintiff
Mr J.S. Wheelhouse SC / Mr M Richardson for Defendant

SOLICITORS: Richard Licardy & Co Solicitors & Attorneys-at-law for Plaintiff
Thynne & Macartney (Brisbane)
Kemp Strang (Sydney agents) for Defendant

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 20191/03

- 129 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

COOPER AJ

WEDNESDAY, 6 DECEMBER 2006

20191/03 RONALD MALCOLM CROSS v QUEENSLAND NEWSPAPERS PTY LTD

JUDGMENT

Introduction

1 HIS HONOUR: In this action the plaintiff sues to recover damages on the grounds of defamation in respect of articles published in New South Wales and Queensland in the Courier Mail Newspapers in which the defendant is the proprietor.

2 The first article was published on 20 June 2003 and is entitled “Marketeer aims for the South”. A copy is annexed and marked “A”. The paragraphs have been numbered for convenience.

3 The second article was published on 1 July 2003 and is entitled “Coast Marketeer targeted in raid”. A copy is annexed hereto and marked “B”. Here again the paragraphs have been numbered for the sake of convenience.

4 On 21 October 2004 the jury found the following imputations to be carried and to be defamatory, namely:-

First publication:
1. The plaintiff ripped off Mum and Dad Investors by selling them investment properties at exorbitant prices.

2. The plaintiff is a law breaker who ripped off his employees.

Second publication:
3. That the plaintiff is a law breaker.

5 By way of letter dated 27 September 2006, exhibit 1, the plaintiff’s solicitors advised that imputations 2 and 3 would not be pressed. At the commencement of the hearing of this case on 9 October 2006 verdict and judgment was entered in favour of the defendant in respect of those imputations.

6 The defences raised in response to the claim are now set out.

7 The first publication is defensible in New South Wales because:-

Defamation Act

8 It is claimed that the first publication is defensible in Queensland because:-

Defamation Act

9 The second publication it is alleged to be defensible in New South Wales because:-

Defamation Act

10 It is alleged that the second publication is defensible in Queensland because:-

Defamation Act

Parliamentary Privileges Act

Defamation Act

11 In mitigation of damages the defendant relies on the following in respect of publication in New South Wales:-

12 In mitigation of damages the plaintiff relies on the following matters for publication in Queensland:-

13 The hearing of this case occupied six weeks. There are 158 exhibits which, with few exceptions, comprise multiple pages. The evidence became something of a royal commission into the business affairs of the plaintiff.

Dramatis Personae

14 To better understand the evidence in relation to each of the imputations it is convenient to start off with an explanation of the companies involved and their relationship with the plaintiff.

15 Everest Marketing Corporation Pty Limited. This was the company that employed the telephone marketing people. The plaintiff’s sister, Renee Cross, was a director of the company prior to its voluntary administration in 2003. However, Mr Cross agreed, page 523, that he was the one who dealt with the Australian Taxation Office on behalf of this company during October 2003.

16 Exhibit 80 is a letter signed by Mr Cross in his capacity as Managing Director of Park Trent Investments to J E Cains & Associates, his companies’ accountants, dated 29 June 2001. Its relevant parts are as follows:-

“As discussed with John Koot, when Everest was incorporated, Park Trent Investments indicated to pay any shortfall for Everest’s tax liabilities including group tax.

Unfortunately, due to the necessity to improve and extend the existing premises, funds were unavailable to meet this commitment, however, Park Trent is now coming into a position where it will be able to meet its commitment to Everest.”

17 The place were the activities of this company took place was in the same premises as where the plaintiff had his office as did his New South Wales located companies.

18 Furthermore, the plaintiff agreed that he was the one that settled, if not actually drafted, the script used by the telephone operators when soliciting potential customers on the telephone.

19 Rhymney Pty Limited. The plaintiff agreed that he exercised the day-to-day control over this company during the period June 1999 until 13 March 2003 (page 125). He was also a shareholder of this company during this period.

20 Park Trent Investments Pty Limited [PTI]. In his answers to interrogatories, exhibit 113, the plaintiff admitted that he was a director of Park Trent Investments from May 1989 to April 2004 and that he was responsible for the day to day operations of the company during this period. His evidence was that he was responsible for the overall control of the company (page 164) and that he had been an original shareholder of the company (page 162).

21 As appears from exhibit 85, when Mr Needham resigned the plaintiff was the sole director until the appointment of John Owen on 15 August 2002 (exhibit 13, page 67).

22 Park Trent Real Estate Pty. Ltd. The evidence establishes that the plaintiff was a director of this company from 20 March 2001 at least until the time of the voluntary administration (exhibit 13, page 67). A further director, Mr Fidor Avakian was not appointed until 19 September 2002. He was also the sole shareholder of the company until the date of liquidation (exhibit 13, page 68).

23 Park Trent Properties Group Pty Limited. The evidence establishes that the plaintiff became a director of this company on 23 April 2003 (exhibit 13, page 70). This was the company used as the vehicle to purchase the assets of Park Trent Investments and Everest Marketing after the liquidation. The evidence of the liquidator makes it clear that this company was under the control of the plaintiff who was the person negotiating with the liquidator on this transaction.

24 Cross Country Realty Pty Limited. This was a licensed real estate agent located at Surfers Paradise in Queensland and licensed under Queensland Law. Its activities were carried out by sales persons referred to as runners who met the prospective buyers when they arrived from interstate, took them around to finance consultants, showed them properties and generally sought to achieve a sale of a property being marketed by Park Trent Investments Pty. Ltd. on behalf of a developer.

25 The plaintiff gave evidence that he visited that company’s premises approximately once per fortnight, that he gave instructions and training to the runners engaged by that company to show and sell properties marketed by Park Trent Investments. and that he had the right to hire and fire them.

26 It was not until late 2003 that the plaintiff became a director of the company. In the meantime it was his daughter, Kellie who was in charge.

27 The significant degree of control exercised by the plaintiff over the operations of Cross Country Realty Pty Limited is demonstrated in documents.

28 Exhibit 3 is a memo from the plaintiff to Kellie Cross dated 2 October 2000 in the following terms:-

“Over the last few weeks the sale results have been unacceptable.

There now needs to be some changes in the system, commencing from today’s date, Monday, 2 October 2000.

Any runner not able to provide a positive result must follow the new system as the old system appears to be inadequate.

The runner must bring the clients into Cross Country office, for a meeting with a senior personnel of the Park Trent Group. This is to operate seven days a week and at all times whilst runs are in progress.

The above change is only a small one but it will give immediate positive results for the following reasons,

1. We have an excellent prestige office, which adds to the standing of the company.

2. The clients will be impressed and can be interviewed in a relaxed attractive office complex. You can have tea and coffee and even a beer available to help close the deal.

I remind you of our past successes, when we had close to 100% closing rate. Now you seem willing to accept 75% as the high point of closing. Well you were right whilst ever you have the runners and the finance people closing the deals. I think you are lucky to get 75% - which you will not obtain this month.

I would not have gone to the extra cost to set up the new offices, just to make life better for the staff. These offices must be fully utilised from day to day as a closing tool to improve our overall percentages.

Then and only then will be in control of our cash flows and in complete control of our clients.

I also stress that you commence immediately to start making arrangements to have Cross Country signage on land/homes throughout your market area and appoint a person to look after external sales.

The above directions must be actioned upon receipt of this memo.”

29 The next document is exhibit 75 and is a further memo from the plaintiff to Kellie Cross and Maggie Pickett, Cross Country Realty dated 31 January 2003 in the following terms:-

“Would you please advise all runners whom currently contact our company’s various offices, that it is a condition of operating with our Group that pre run contact be made with the consultant whom has arranged for the Queensland visitation?

Also the runners should be reminded of our numerous meetings where I have outlined a number of procedures that they must, as runners, adhere to.

I will be monitoring the position with all Queensland runs personally and any runner not following my procedures, their services will not be required.”

30 The plaintiff set up a system under which, if a sale looked like falling through, he was to be notified by a document called a “Red Alert”. (See exhibit 82). In appropriate cases he would personally contact the customer.

31 Exhibit 19 is a memo to Maggie [Maggie Pickett] and Kellie [Kellie Cross] from the plaintiff dated 26 May 2003 in the following terms:-

“All Red Alerts that require my involvement eg. Home visits. The runners’ fees are to be reduced by $500 per visit, this is a necessary amount to cover my costs etc.

I, at this point would like to remind you that the better and more professional the runner does the run, the less likelihood my involvement becomes necessary.

Would you please advise on a monthly basis of how much money involved, so that I can budget the income with my expenses.”

32 The foregoing documents with other evidence clearly establishes that it was the plaintiff who had the effective control over the way the runners treated potential purchasers who had flown into the Gold Coast from interstate. It was the plaintiff who set out the guidelines and methods of operations that they were to follow. In particular, as stated in exhibit 3, that they were to be “in complete control of our clients”.

33 Collison Finance & Investments Pty Limited (CFI) was a finance broker which, in the early stages and when required, arranged loans for the clients to enable them to purchase properties introduced by Cross Country Realty.

34 The evidence establishes that information received by Park Trent Investments as a result of a home visit to a customer would be sent to Collison Finance & Investments prior to the arrival of the client in Queensland. Exhibit 33, page 49, shows such details sent by Park Trent Investments to CFI relating to the borrowing capacity of Mr and Mrs Stumbles before they visited Queensland.

35 CFI charged the clients a brokerage fee part of which was paid to Park Trent Investments. A letter dated 5 February 2001 from CFI to PTI marked “Attention Mr Ron Cross” describes it as “brokerage split”. In other documents in exhibits 115 and 39 it is referred to as a commission.

36 Easy Plan Financial Services Pty Limited was a finance broker which took over from Collison Finance & Investments Pty Limited. The plaintiff conceded at page 149, that this company was conducted in accordance with his directions from time to time and that he was a director from 26 May 1999 until 17 January 2003.

37 Easy Plan Financial Services Pty Limited conducted its business at premises next door to those occupied by Cross Country Realty Pty Limited.

38 The extent to which employees of this company were under the control of the plaintiff and Cross Country Realty is demonstrated by the evidence of Mr Thomas Stevenson called on behalf of the defendant. His statement is exhibit 108.

39 In October 2002 he responded to an advertisement in the Gold Coast Bulletin for a position with Park Trent. He was approached by Kellie Cross to work for Easy Plan Financial Services.

40 Exhibit 109 is a letter dated 10 December 2002 from Cross Country Realty to Mr Stevenson enclosing an employment letter in duplicate and asking him to sign both and to return to the office by the end of trade on 12 December 2002.

41 The enclosed letter confirms an offer to him of an appointment as Finance Broker with the Park Trent Group of companies. The first of the conditions of appointment is that he is responsible to Kellie Cross, Manager in charge of operations. His duties and responsibility will be as directed by the company and may be varied to respond to changes to its requirements. His work will be of a professional nature at all times.

42 His salary package was $40,000.00 plus statutory superannuation contributions. He was to earn $500.00 commission for every successful deal he wrote. For any brokerage fee over 1% he was to receive half the amount over 1%. It states by way of example, that if he charges and receives a fee equivalent to 1.65% he would receive the $500.00 plus 0.325% of the brokerage.

43 The letter is signed on behalf of Cross Country Realty.

44 It is to be noted that Mr Stevenson’s work was with Easy Plan Financial Services which was to arrange finance for prospective purchasers.

45 His evidence is that Cross Country Realty Pty Limited and Easy Plan Financial Services operated from the same premises in Surfers Paradise in the Forum in Orchid Avenue. Although each company had its own separate entrance and reception area the two offices had access between them through a door which was always open. Easy Plan’s files were taken into Cross Country once the client had been advised and were there stored in the file storage compactus at Cross Country.

46 His statement continues that the plaintiff used to visit the offices regularly and at times instructed him on the preparation of the property investment analysis he was to give to clients.

47 An example of this appears in exhibit 23 which is a property investment analysis of a fictitious potential purchaser relating to a property known as Ipenema Resort. At the foot of the first page Mr Cross has written: “Harold, go through this PIA. Some areas that require a rethink.”

Backgound Information

48 Before going to the specific imputations it is convenient to set out the particular commercial need which the plaintiff and his companies sought to fulfil. This sets the background upon which the activities of the plaintiff are superimposed and permits of a better appreciation of the factual issues which require resolution

49 It is a notorious fact that for many years Queensland has had the fastest population growth of any State in Australia.

50 This has encouraged real estate developers to purchase land and construct houses, community estates and apartment blocks which they need to sell.

51 The premises which they construct are available not only to home buyers but also to those who may wish to purchase the premises as an investment and thereby provide accommodation for those who are unable or unwilling to buy premises but are able or willing to rent them.

52 The plaintiff and his companies provide a service to developers by exposing their products to a much greater number of potential buyers than the local market and thereby enabled those products to be sold more quickly.

53 The evidence of the plaintiff is that he approaches developers with a view to obtaining the right to market their property at a fee.

54 His evidence is that the selling price is fixed by the developer and is the same whether one purchases through his companies or through a local estate agent. The plaintiff in evidence pointed out that a developer includes within the selling price the costs of advertising, promoting and selling. When a developer engages the plaintiff’s company all of these are included in the one fee which is payable if, and only if, he achieves a sale.

55 The evidence of the plaintiff is that although he charges a fee in addition to the fee fixed under Queensland law charged by the real estate agent (known as REIQ) there is no disadvantage to the purchaser because, if the purchaser purchased through a local estate agent he would pay the same price. This evidence was corroborated by further witnesses.

56 Mr Gregory Kahn, a developer, gave evidence that included in his development costs and the ultimate selling price is an amount for marketing.

57 He deals with a number of different marketing companies and testified that when he has a house and land package for sale, he prepares a list of his stock with prices and faxes them to different companies, real estate agents and marketers and the price is always the same. His evidence was that the marketing costs vary between 8% and 10% of the selling price depending on what that price may be. He said that to have different selling prices for the same property, depending on who sold it, would not be fair to anyone.

58 At page 688 he was asked:-

59 He said that normally the total package of marketing and REIQ fee comes out at $15,000.00 or $20,000.00.

60 Mr Hutchinson is a developer operating in South-East Queensland who also gave evidence. He was asked how he sold his houses and home units and replied, page 692:-

“As a developer you only have two choices; you either set up the infrastructure to have your own sales team and marketing processes, or outsource. So since we chose to use the second source, we’d outsource to companies like Cross Country and other local real estate agents and anybody else out there who showed interest in selling our properties.

61 In relation to differential pricing he was asked at the same page:-

62 Mr Hutchinson pointed out that holding costs “are a killer” and added:-

“As a developer the holding costs are a killer. If you are going to borrow money to produce the estate you need to get rid of it as quick as you can.”

63 The plaintiff also called Mr Richard Winston the director of Bellridge Homes a developer of housing estates. He is also Mr Cross’ son-in-law.

64 His evidence is that when he wants to sell properties he places them in the hands of real estate agents and marketers and the selling price is always the same.

65 The contracts he has entered into with Park Trent Investments involves a flat fee consisting in part of REIQ fee and the balance being the marketing fee.

66 The plaintiff also called Mr Bill Kosseris who has worked in the building industry for forty years. From 1980 he worked with Lend Lease Building Services as a cost estimator on developments. From February 2001 until 14 November 2005 he worked for Mancorp Development Company Limited and was involved in over 200 sales of development projects in Queensland.

67 In his statement, exhibit L, he explains that the price eventually asked for a house and land package offered by a developer involves projecting forward the likely growth in the market. Thus for a subdivision started in 2005 you would be calculating the likely market price in 2007 and work forwards to obtain a price for that project. When calculating the projected price one has to take into account a desired profit margin of about 15%, the costs of development and then a contingency for such matters as overruns in construction, rain disrupting construction and delays in approval from council.

68 Also included in the costs are those of identifying a suitable block of land for subdivision, obtaining development approval which typically involves fees of up to $80,000.00 payable to local authorities plus fees to surveyors. It is also necessary to obtain a report called an IDAS report and a Town Planner’s report for the subdivision.

69 Once development approval has issued it is then necessary to retain a town planner to start the actual civil works on it. Then the development costs of building the roads, kerbing, guttering, storm water drains etc is incurred. It is not until all these works have been completed that it is possible to start marketing the subdivision as a house and land package.

70 All steps to the point of getting the subdivision to where it can be marketed involves borrowing money typically adding 8% to 12% to the cost of the project.

71 The costs of marketing are typically 10% of the total costs of development and have to be built in to the selling price. These costs are typically the costs of promoting the development to intending purchasers and include press and Internet advertising, brochures and onsite sales persons to show the estate to intending purchasers. In addition to the 10% marketing costs there is the fee payable to estate agents calculated in accordance with the REIQ regulations.

72 If the project is being marketed as finished buildings, there are additional costs involved in the construction of houses with development applications for each building plus further interest costs as well as the 10% marketing cost and REIQ fees.

73 He points out that all of the costs of the development must be recovered if the developer is to make any profit. Each item of cost contributes towards the ultimate selling shed price and it is unrealistic to talk about the marketing costs alone as inflating the purchase price as all of the costs contribute to the eventual price.

74 In evidence he said that these costs were based upon actual homes that were built by the company that he worked for. He said that the projects that he was instrumental in selling were always given for sale at the same price regardless of who sold it and added (p 723):-

“A. You can’t have – you can’t build on one block at one price and Mrs Jones next door at a different price.

75 He also added that anywhere between 9% and 12% for REIQ and marketing would be reasonable, (page 723).

76 In an attempt to establish the contrary, the defendant called Mr Owen Howden a real estate agent who initially applied for and was granted a job with Cross Country Realty on the Gold Coast in mid 2002. He was interviewed and appointed by the plaintiff.

77 He attended a training session conducted by Mr Cross. His job was to show people property in the Gold Coast area and to sell it. At that stage he did not have a Real Estate Agent’s license.

78 After a short period Mr. Cross invited Mr Howden to work for Cross Country Realty in Victoria where, after two or three weeks, he was appointed to the position of State Manager for Victoria.

79 Mr Howden gave evidence that he received at the office of Cross Country in Victoria a fax, a copy of which is exhibit 92. He gave evidence that his instructions were to calculate the selling price of properties listed on that document. To arrive at the selling price he had to add the selling fee totalling $20,000.00 to the listed price in each case. Accordingly, he wrote to the left of the list of typed figures the selling price inclusive of the selling fee. The agent which gave the instructions to Cross Country Victoria was Carrollyn McKeddie. If this evidence is correct then it would show that the selling fee imposed by Cross Country Real Estate Victoria would have inflated the selling price by $20,000.00.

80 However this is completely contradicted by the letter from Carrollyn McKeddie Real Estate to Cross Country Real Estate Victoria dated 27 August 2003, exhibit P, which makes it quite clear that the prices at which the properties are to be sold were the type written prices on exhibit 92 and adds:-

“These prices contain a fee of $20,000.00 per unit inclusive of GST for Cross Country Real Estate. Any sale less than the prices, then the difference will be deducted from the selling fee.”

81 It is therefore clear that the alterations in exhibit 92 were unauthorised and mistaken.

82 Mr Howden said that he has been in the real estate business for four years and he sees nothing unusual in a marketing organisation taking a fee of up to $20,000.00 for the sale of units.

83 He also said that about two weeks before giving evidence he saw Mr Cross at the Wollongong head office of Park Trent Real Estate Group when he approached him on behalf of his present employer, PBS Property Group, to market the sale of a unit/townhouse development at Hervey Bay in Queensland.

84 He agreed that he anticipates that, if Mr Cross takes on that particular proposition his marketing scheme would involve seminars, in-homers, flying people up to Queensland all of which he regards as normal business practice.

85 He said that the sixty-one units involved in this development include a percentage in their prices for marketing. This is normal. The properties are a good investment and buyers would not be “ripped off.”

86 When asked if his employer felt that he had the right to put up prices if they were selling more quickly than anticipated Mr Howden answered:-

“Supply and demand usually works that way, Yes.

87 Exhibit 116 is a statement by Peter John McGrath a real estate agent who has been in business since 1983 and has been the Chairman of the Real Estate Institute of Queensland since January 2004.

88 In paragraph 14 he explains that new real estate on the Gold Coast of Queensland is sold in one of two ways. First, where vendor/developers pay marketing fees to marketing companies and the marketing company introduces the purchaser usually through an associated real estate agent. The second or traditional manner is where prospective purchasers approach real estate agencies who market the property in the absence of any marketing agreements with the developer.

89 He argues that the former method involves the payment of a substantial fee to the marketing company which provides marketing seminars, telemarketing, subsidised travel to the Gold Coast and a run whereby the prospective purchasers are shown a number of properties in a short space of time but where all of these properties are located in developments which have built into their listed prices substantial marketing fees.

90 Mr McGrath goes on to say that the effect of the payment of the substantial flat fee/commission by the developer to the marketing company is that the purchase price is increased above the amount which the developer would otherwise seek to receive as income from the sale. This is because the purchase price must cover that additional cost to the developer.

91 As against this one must bear in mind the evidence of the developers, to which reference has already been made, to the effect that it is the activity of the marketeers which allows quicker sales and thereby reduces the impact of the holding costs upon the developer. If developers did not have the advantage of marketing companies to market their products the price could well remain much the same in order to cover the extra holding costs. Mr. McGrath also overlooks the fact that, if a sale is effected through an estate agent only, there will still be not inconsiderable extra costs for advertising and promoting the vendor’s product. He overlooks the fact that utilising a marketing company is an outsourcing of the promotion and advertising aspect of a developer’s business. He also overlooks the fact that the marketer’s fees are payable if, and only if, the marketer achieves a sale. On the other hand, if the developer carries the costs of promotion, those costs are payable whether or not a sale is achieved.

92 It is quite simplistic to say, in the absence of a thorough investigation of each individual transaction, that marketing fees inflate the selling price of a property.

93 In paragraph 19 he says that in his experience probably 50% or slightly more of the real estate agencies in Queensland, not connected to the type of sales conducted in South-East Queensland, do not charge any money for marketing and advertising separate from the normal commission. This comment refers to estate agents throughout the state of Queensland and is probably correct.

94 Mr McGrath also says that the real estate agent may advise the customer that the developer may accept a lesser sum as an offer and that frequently, but not always, the developer will sell to such purchaser at the lower price because the developer is not obliged to pay the marketing fee built into the higher listed price.

95 Again, this is totally simplistic. Even the marketer is under an obligation, if required by the proposed purchaser, to put an offer to the vendor. The vendor may or may not agree to a reduction in the price.

96 Thus, in the case of Hughes which is referred to later, the contract was subject to valuation being not more than 5% below the selling price. The valuation was lower. Negotiations took place and a lower price was accepted by the vendor with the marketer and agent contributing.

97 I now pass to the evidence of Mr Thomas Stevenson called on behalf of the defendant to whom reference has already been made. His statement is exhibit 108.

98 In paragraphs 31 to 33 Mr Stevenson makes some serious allegations against Mr Cross namely:-

99 In paragraph 33 Mr Stevenson goes further:-

“I also believe there was deception practised on the deposit bond providers. When Cross Country made a sale, with finance to be arranged by Easy Plan Financial Services, a finance application would be completed and lodged with a lender. The details of the applicant and the security were forwarded to Park Trent in Wollongong who issued a signed letter of finance approval in the name of Howard First Pacific Finance Wollongong office. The approval was for the full loan amount and was subject only to a later valuation, and was then forwarded to the bond issuer by Maggie Pickett at Cross Country Realty in Surfers Paradise with an application for a deposit bond. The bond issuer, usually Royal Sun Alliance trading as Deposit Power or Deposit Access accepted the letter of finance approval from Cross Country and issued the bond, not realising the application had not received approval from Howard First Pacific. In fact the application never went to Howard Pacific, it was just on their letterhead. In this way Cross Country was able to direct the purchaser’s solicitor to issue a letter to the developer confirming the contract is unconditional, then being paid a substantial commission from the developer.”

100 These allegations are very serious.

101 In evidence in reply Mr Cross denied the allegations saying that they were completely false. He specifically denied that he took away applications for finance which had been previously made and approved through Pacific Mortgage Corporation and that he then lodged fresh applications through another finance funder.

102 In evidence at page 1124 Mr Cross pointed out that if the loans had been approved by one body time was running under the contract. To rip up a finance approval as alleged by Mr Stevenson and then to lodge new applications with a different finance funder would require new valuations and involves further delays beyond the time stipulated in the contract for obtaining finance. Mr Cross said that for this reason alone he could not and did not do such a thing.

103 He agreed there was a standard fee payable by the mortgage broker to Easy Plan for referral plus a trailer which was normal business practice.

104 In relation to the allegation of deceiving Howard First Pacific Finance he pointed out that it is impossible to do. To get the bond issued one has to lodge the application for finance with a funder and then that funder would provide conditional approval. He did not falsely use Howard First Pacific stationery to give an untrue letter of finance approval pointing out that it was impossible.

105 The plaintiff’s evidence on this issue was corroborated by Mr John Odewahn who is the Managing Director of Howard Pacific Finance. He explained that if a client was referred to his company for the purpose of raising a mortgage and he raised that mortgage from a lender then he paid Park Trent Group an establishment fee equivalent to 0.4% of the total loan raised.

106 He explained that he is paid by the lender 1% on the amount of business that he writes for it and he shares that with the introducing party. He takes 0.6% for doing the work and the introducing party gets 0.4% for referring the client. This is the normal practice in the finance business. He denied ever having paid Mr Cross a fee of 0.8%.

107 The introduction fee and trailer fees are a normal part of business and are available to all referrers not just to the plaintiff and his companies.

108 In relation to the allegation that Howard Pacific letterhead was improperly used, Mr Odewahn said that Park Trent had application forms but no other stationery including letterheads.

109 He explained that the trailer fee is paid for the life of the loan. It is 0.2% per annum on the balance of the principal amount of the loan (and not including the interest) outstanding from time to time on a monthly in arrears basis.

110 He denied that he charged a client a higher rate of interest than normal so that Mr Cross could get a bigger share pointing out, at page 1250, that it would not be in his interests to be charging a rate that was out of the market. His company relies on referral business and to be charging an interest rate in excess of market just would not be in their commercial interests.

111 In paragraph 45 of his statement Mr Stevenson says that he could not work under this type of deception and four days after a conversation with Mr Cross, on 28 April 2003 he resigned.

112 There is no doubt that he resigned on 28 April 2003. However, the evidence of Mr Cross supported by his diary entries satisfies me that he was not even in Queensland four days before 28 April 2003.

113 Mr Cross gave evidence that, on a number of occasions, he complained to Mr Stevenson that he was not completing documents correctly. This led to a letter being delivered personally to Mr Stevenson on 8 April 2003, exhibit Z, the relevant parts of which state:-

“Harold it is with regret that I have to write this letter to you.

I am bitterly disappointed that you haven’t carried out my specific instructions given to you on several occasions regarding the filling out of the clients application form when the client is with you in the office.

Make sure that all information is completed for the same in the future.

Please be advised that this is an official warning.”

114 Mr Stevenson said that he had not received this letter and had been given no warnings.

115 Having regard to the totality of the evidence I am comfortably satisfied that Mr Stevenson’s allegations are quite unreliable and should not be accepted. He struck me as a person who bears a bitter grudge against Mr Cross which has coloured his evidence.

116 The part of his evidence which I do accept, because it is supported by documents, is that he was under the control of Mr Cross and/or Kellie Cross at all times and, as evidenced in exhibit 109, his activities at Easy Plan Financial Services did not involve giving independent advice to the potential purchasers but rather to follow the directions of Park Trent Investments in using the financial advice so as to effect a sale.

How did the Plaintiff attract clients to South-East Queensland?

117 Having considered the need of developers in the South-East of Queensland to increase their sales and in particular to have quicker sales at the best possible price, it is now necessary to examine how the plaintiff through his companies satisfied this need.

118 Essentially, the strategy was to increase the number of potential buyers of properties in South-East Queensland by interesting potential buyers from outside of that area, and particularly from interstate, which buyers would not otherwise consider purchasing properties in South-East Queensland. It achieved this by selling properties not as personal dwelling houses or even as holiday houses. Instead it presented properties in South-East Queensland as a tool whereby potential buyers could increase their capital assets or future wealth.

119 The first step in the implementation of this strategy was to attract potential buyers by advertisements on press and radio and also by means of unsolicited telephone calls, also called telemarketing.

120 The telemarketing was done by employees of Everest Marketing Corporation Pty Limited. The script used by persons making phone calls to potential buyers, exhibit 2 is of interest. Its relevant parts are as follows:-

“Good evening Mr or Mrs - - - . I am calling from Park Trent, we are one of Australia’s largest, and we think the best, national real estate group in Australia.

We are currently arranging an information conference in your area in the next couple of weeks.

The evening will be extremely informative with regards to property investment, also it will enlighten you to understand, how you can use your personal tax to help purchase investment property.

The conference is free. And a light supper will be served.

You will find the evening very beneficial with your future retirement planning. Could I check your mailing address to send you the invitation?”

121 If the recipient of the call answers “Yes” then the telemarketer is to say:-

“You would like to attend, may I have your partner’s name, and I need to check your mailing address for you to receive the invitation.”

122 If the recipient of the call answers “No” then the script says:-

“Can you tell me why you would pass up this opportunity to enhance your knowledge, which can only help you and your family.”

123 The script then goes on to say that Park Trent also provides an in-home service, which is a complete obligation free service where one of its experienced consultants will visit at a suitable time in the comfort of their own home, and:-

“During the in-home visit the consultant will explain what property investment can do for you, and your family. He or she will have available a laptop computer to assess your capacity and will be able to advise you what price and most importantly, what type of property fits you and your situation, budget etc. “

124 In addition, Park Trent Investments had a web page, The print out of that webpage is exhibit 9.

125 Under the heading of “Who are Park Trent Investments?” appear the words:-

“We are marketers of fine properties. We specialise in assisting families who wish to enter the investment property market. We provide individual solutions to all investors, from first timers to those who already possess considerable property portfolios.”

126 Under the heading “Why you should invest with Park Trent” is a short history of the company, information that it has offices in Queensland and New South Wales and is therefore perfectly positioned to provide a personalised and professional service to investors, with the added advantage of local knowledge. It also refers to the fact that it presents investment conferences around Australia five to seven nights per week. It also adds:-

“Park Trent operating principles are:-

· Providing quality information.

· Employing professional consultants who are well trained in investment areas and who exceed the Industry standard for best practice.

· Providing quality properties in an optimum price range.

· Being strongly committed to customer service, and to providing support along all stages of the pathway that leads to the purchase of investment property.”

127 Those who attend the seminars are addressed by a speaker who had been trained by Mr Cross and who speaks in general terms of the advantages of investment in real estate as a means of increasing personal capital assets. They also receive a letter and pamphlets of the type included in exhibit 8.

128 That material includes a letter addressed to “Dear Investor” and it thanks them for attending the “positive and negative gearing investment conference”.

129 The letter also points out that Park Trent Investments provides discounted airfares and hotel accommodation when required for inspection of the investment properties. It points out that its consultants will be happy to do a personal assessment to determine the person’s eligibility. It invites them to make an appointment for such a personal assessment and, if the figures work for the potential customer, then the company will point the way for that person to become part of the 800,000 investor families who “have the key to the door”.

130 The pamphlets also include a brief explanation of negative gearing and sets out six rules of property investment as:-

· affordability

· timing

· position

· rentability

· deductions

· and resale

131 A further page of the pamphlets points out that if the investor considers what he or she really wants from the investment he or she will probably come up with a list which includes:-

· security

· high performance

· reliability

· tax advantages

· and protection from inflation.

132 These are all claimed to be the areas where real estate has major advantages over other investments.

133 A further page contains a pie graph which claims that of the amount invested in superannuation only 20% goes to the investor.

134 The final page reads:-

“Park Trent Investments offers a comprehensive range of services which ensures smooth professional service at every stage of the client’s progress into tax effective property investment.

Property asset planning with Park Trent Investments as your guide to gaining personal wealth and independence, will introduce you, through sound investment in bricks and mortar security, to a new dimension in achieving your goals.”

135 A further pamphlet entitled “Make Your Investment Property Your Money Box” is in exhibit 15. Under the heading “Park Trent and You – Partners” it states the following:-

“To help you take that first step we offer a free financial analysis. That identifies how much you can afford and no, you don’t have to be a millionaire. In fact, you’d be surprised of how little you actually need to get started.

What to buy and where to buy is your next consideration. You know the drill – position, position, position. Well you can’t underestimate position but that’s not all there is to when you’re buying an investment property. Growth potential, rental potential. Even eligibility for substantial PAYE, PPS, and/or provisional tax refunds come into play. We provide solid data to advise you so you have the information to make a considered choice.

Then we negotiate with the vendor and arrange documentation. We discuss the best finance for purchase and determine, with you, how to structure the loan. We also organise property management and suitable tenants. So you can see that buying an investment property can be as easy as it sounds.

Put Park Trent – the experienced property investment company – to work for you.”

136 Persons attending the seminars were invited to have a consultant visit their home for the purpose of providing more detailed advice than could be given at the seminar. The consultants who visited the homes were referred to as “in-homers”.

137 When an in-homer visited a potential client he or she obtained financial information from the potential investor on such matters as to the real estate which they owned, the extent of equity they may have in their home, their income and general liabilities.

138 The information obtained by the in-homer was then faxed to the finance company that would be arranging the finance for the purchase of a property. Initially, that was Collison Finance and Investments and later Easy Plan Finance.

139 In addition, a client profile of the type shown in exhibit 18 was faxed to Cross Country Real Estate in Surfers Paradise.

140 During the in-home visit a potential investor was invited to travel to Queensland to look at properties and offered subsided fares and accommodation during the stay. If the potential purchaser agreed to visit Queensland to look at properties he was required to pay approximately half the cost the balance being paid by Park Trent Investments.

141 The potential investor was sent a letter enclosing an itinerary. The itinerary in general, involved the potential investor arriving at Coolangatta airport in the early afternoon of one day and leaving that airport for home late the following afternoon.

142 The itinerary also contained a list of “what to bring with you”. It included documents of identification such as driver’s licence, passport, birth certificate, records of financial status such as bank account statements, loan account statements, details of credit cards and insurance policy on existing house property. Evidence of the potential buyer’s earnings such as pay slips or of the last two years tax returns and assessments were likewise required.

143 The letter enclosing the itinerary were in a standard form and commenced with the opening paragraph:-

“Congratulations on deciding to join the many investors who are part of the ever expanding Park Trent Family. We are your partners in wealth creation, and are quite aware what an exciting time this is for you.”

Summary

144 The effect of the foregoing representations to potential buyers may be summarised as follows:-

· They were being assisted by Park Trent Investments [PTI] to enter the investment property market

· They will be provided with quality information

· PTI’s consultants exceed industry standard for best practice

· PTI provides quality properties in an optimum price range

· PTI will introduce them through sound investment in bricks and mortar security to a new dimension in achieving their goals

· PTI offers a free financial analysis which identifies how much they can afford

· PTI provides solid data to advise them on growth potential, rental potential and eligibility for substantial PAYE, PPS and/or provisional tax refunds so that they have the information to make a considered choice

· They are part of the ever expanding Park Trent Family.

145 The effect of the foregoing is that PTI is there to look after the interests of the potential buyers who can trust PTI to achieve the stated goal of “wealth creation”. There is no mention that PTI is paid by the vendors of properties or that PTI owes any duty to those vendors. There is no mention of the fact that PTI’s duty to vendors may conflict with its duty to purchasers.

146 But, at the same time, it is notorious that values of real estate can increase at a greater rate than inflation and so, can be a means of wealth creation.

147 Accordingly, it is necessary to examine the evidence as to what happened to potential buyers once they landed in South East Queensland to see if this potential conflict of interests resulted in the plaintiff ripping off Mum and Dad investors by selling them investment properties at exorbitant prices.

WHAT HAPPENED IN SOUTH EAST QUEENSLAND.

148 The defendant has called four witnesses each of whom was a purchaser of land marketed by Park Trent Investments Pty Limited. It is submitted on behalf of the defendant that the experience of each of these persons was typical of the procedures followed by those companies and persons under the control of the plaintiff, to sell the properties.

Mr. And Mrs. Stumbles

149 The first such witness was Mrs Helen Stumbles.

150 She testified that in about November 1999 she received an unsolicited phone call inviting her and her husband to attend an information night at Dapto Leagues Club to talk about investment properties. She and her husband attended and expressed the view that there were at least fifty people there who were of similar ages to herself and her husband. She described them as looking like married, middle-class, middle-aged couples.

151 The speaker introduced himself as acting on behalf of Park Trent and discussed how to increase wealth by investing in property. The speaker described using the equity in their home and claiming tax deductions.

152 The properties described were units and house and land packages. She and her husband invited an in-homer to attend. The in-homer brought a laptop and Park Trent brochures.

153 He explained to them how they could use the equity in their home to secure money to purchase a property. They also revealed to him details of their earnings, savings and the equity in their home.

154 With the aid of his computer he produced figures showing how much he thought they would be able to spend on purchasing a property.

155 Eventually, they decided to visit the Gold Coast to look at properties.

156 They gave the in-homer details of when they would be available to go to Queensland and subsequently they received an itinerary which involved them arriving at Coolangatta Airport at 6:35 pm on Sunday, 26 December 1999 and leaving that airport for Sydney at 6:00 pm on Monday, 27 December 1999. The itinerary and covering letter were in a form similar to that previously described.

157 On arrival at the airport they were met by a car and taken to the Neptune Resort where they stayed the night, had breakfast the next morning and were picked up the next day at about 9:00 am.

158 They were picked up by Mr Peter Waddington who said that he was an agent for Cross Country Realty.

159 He took them directly to Collison Finance where they were introduced to a Mr Andrew Bird. Mr Bird enquired of them details of their bank accounts, savings and income. He then showed them that he could refinance their existing home loan so that there would be two mortgages, one for $60,000.00 and one for $116,000.00 and explained that that was the amount of money they could expend on properties after allowing for fees and expenses. He then produced a spreadsheet which appears at pages 79 and following of exhibit 33. This document is called “Property Investment Analysis Details”.

160 This document which is dated 27 December 1999 is based on the assumption of a property value of $160,000.00, rent of $180.00 per week, a capital growth rate of 5% per annum and an interest rate for finance of 7% and taxable income of $42,800.00 per annum.

161 On this basis it projected a value after five years of $204,205.00 and after ten years of $260,623.00.

162 It also calculated that the actual cost to the investor would be $13.00 per week in the first year $28.00 per week in the second year and $25.00 per week in the third, fourth and fifth years. It assessed the market value of the property at the same as the purchase price, namely $160,000.00, and estimates the total purchase cost to be $5,600.00.

163 At the foot of the first page is printed the following:-

Disclaimer: note that the computer projections listed above simply illustrate the outcome calculated from the input values and the assumptions contained in the model. Hence the figures can be varied as required and are in no way intended to be a guarantee of future performance. Although the information is provided in good faith, it is also given on the basis that no person using the information, in whole or in part, shall have any claim against Collison Finance and Investments Pty Limited its servants, employees, or consultants.”

164 Mr Bird also told them, without even being asked, that his commissions would come from being a broker and that one of the banks from which he would secure the best loan, would pay Collison’s commission.

165 She expected that the main real estate agent, being Peter Waddington, would receive a commission through the house/land package deal that he was setting up. She was asked, at page 798:-

166 Her evidence was that Mr Waddington then drove them to a couple of suburbs that were still just pegged out paddocks and showed them plans of units that had not even begun construction. They told him that they did not want to buy off the plan, that they did not want to buy a unit and that they were more interested in a house/land package. He then drove them to Boronia Heights. He then took them to a street where there were a couple of houses already in the course of construction and showed them a number of blocks of land which were going to be developed by Textor Constructions. He explained that he knew from Andrew Bird what they could afford and she added:-

“He said this is what you will be able to afford so I would like to take you to Ken Burton Homes and see what value they can get, always emphasising there is no pressure but will go and look anyway.”

167 They went to display homes erected by Ken Burton Homes at Boronia and she said that they were shown the plans and pictures and colour schemes that they could choose to go into house of the land/house package they could afford. She said:-

“We were really rushed. It was beginning to rain. It was freezing cold and we weren’t ready for the weather. We hadn’t stopped for anything to eat or drink. There was a sense of urgency all the time with Peter Waddington that we had to hurry up and we also had to catch a flight and we knew time was ticking away so he wanted us to go back and talk to again to Andrew Bird before we left.”

168 Mr Waddington then drove them back to see Mr Bird. Mr Waddington rang the solicitor, Mr Robertson, from that office and arranged an appointment.

169 The cost of the house which was $108,000.00 plus the cost of the land brought the total up to about $156,000.00.

170 Mr & Mrs Stumbles were then driven to the solicitor’s office (Mr Robertson) who had all the paper work ready. He explained to them all about the property and the purchase.

171 She described her interview with Mr Robertson, page 800 thus:-

“Yeah, first of all he told us there was no cooling off. If you sign there will be no cooling off. You understand that: yes, we understand that. This is a really good thing that you are doing. You know that what he said about buying properties, the Gold Coast was really going ahead. He was in the middle of renovating his office and he said you can see there is a lot of movement in the Gold Coast in this area, it is wise to jump in now and get involved with property investing in this area. Certainly buying a house and putting equity into that and then buying again and buying again and so on really, a sensible thing to do.”

172 The contract of sale is at page 60 of exhibit 33.

173 It is a purchase from Textor Constructions Pty Limited of vacant land at Lot 21 Elmwood Court, Hillcrest at $49,950.00. A deposit of 10% is to be paid by a deposit bond. Finance is to be provided within thirty-five days on terms and conditions as represented by Collisons for the buyer.

174 There is a separate contract with the builder for construction of the home at a total price of $108,147.00. It is dated 27 December 1999. The total price of the house/land package was therefore $158,097.00.

175 Mrs Stumbles explained that they were not at Mr Robertson’s office for very long because they were rushing to catch the plane home. Also Mr Waddington was present in the office when she signed the documents in front of Mr Robertson.

176 Mrs Stumbles said that she and her husband finally decided to go ahead with the purchase while in Mr. Robertson’s office. The matters causing them to make up their minds to buy at that point of time were (page 802):-

“The convincing of Peter Waddington that we had to hurry up and do something otherwise we would miss an opportunity. The properties were going really quick. They were great value and we would have to come back again and do it all over again at our own expense, much more expense, we’d already paid something be it a small fee, but we have to come up in our own time and secure people to do all this again and go over everything again just for the sake of, you know, waiting, so we should hurry up and do something now. We’ve seen everything, they have shown us everything, why wait? Do it now.

This is what the property would be worth, straight away $160,000.00. Waddington never said anything to the contrary. He sounded like everything he was saying, that was really good value. So everything that we had been shown by people with what we thought was legitimate and reputable, it wasn’t like it was Peter Waddington taking us to – like he didn’t crunch the numbers, it was a financial company that crunched the numbers and then he took us to a place, took us to a developer that didn’t’ show us anything to the contrary either so it just seemed like so many people were saying the same thing. It wasn’t like we were getting conflicting views from anyone.”

177 She also said that a further matter of importance to her was that the place was readily rentable once completed at $180.00 per week.

178 The settlement of the purchase of the land took place on 9 March 2000 and the house was completed in late May of that year.

179 Once the house was completed they chose a real estate agent closer to the house to find a tenant. The best rent they could get was $165.00 per week. They did not approach Cross Country Realty to find a tenant.

180 On 28 January 2000, Cross Country Real Estate gave to Mr & Mrs Stumbles a tenant guarantee in the following terms (pages 11 and 12 of exhibit 33):-

“Cross Country Realty will guarantee the rental for twelve months from date of settlement for Lot 21 Elmwood Court, Hillcrest at the rental amount of $180.00 per week less 7.5% management fees.”

181 In fact, Cross Country Realty honoured this guarantee as appears from a letter dated 27 July 2000 at page 16 of exhibit 33 in the following terms:-

182 Notwithstanding this letter Mr & Mrs Stumbles did not take their business to Cross Country Realty.

183 In 2001, that is a year after the house was completed, she went to a local real estate agent who expressed the view that the best price they could get if selling at that stage was between $108,000.00 and $114,000.00.

184 Mrs Stumbles agreed in cross-examination that she and her husband now have tenants in the place paying now and that she thought that the current market value of the property was more than $240,000.00.

185 She was then asked:-

186 If the market value of the property is now $240,000.00 it would mean that its value has increased approximately 34% in the past six years.

187 The fee paid to Robertson & Robertson for acting on the purchase totalled $1,550.00. Page 21 of exhibit 33.

188 As appears from page 22 the total amount borrowed by Mr & Mrs Stumbles inclusive of costs was $266,000.00.

189 It is common ground that it was never disclosed to the purchasers that a sum in excess of $10,000.00 was to be paid by the vendor from the purchase price to any of the plaintiff’s companies. However, the evidence previously referred to comfortably satisfies me that the purchase price would have been the same whether Mr. and Mrs Stumbles had acquired the property through one of the plaintiff’s companies or if they had acquired it through a local real estate agent.

190 It is now necessary to consider whether the Stumbles paid an excessive price for the property in terms of the purchase price exceeding the fair market value as at January 2000 and also in the sense that the value of their property failed to have the percentage increase since 2000 enjoyed by other comparable properties.

191 The land is located in the suburbs of Boronia Heights. It is within 350 metres of a bus service and 1.5 kilometres of local shops and schools.

192 The land is rectangle shaped with a frontage of 19 metres and a depth of 34 metres.

193 The house includes a kitchen which is open planned to the lounge, family and dining areas, four bedrooms, a bathroom and ensuite bathroom, walk-in robe, laundry, separate toilet and double lock up garage.

194 In his report to the plaintiff’s solicitors Mr Luke Duncan a registered valuer in Queensland points out that the locality of Boronia Heights is an established residential community that has been developed since the early 1970s. Elmwood Court is an infill residential estate that was developed in 1999. It comprises twenty-three residential allotments ranging in size from 601 to 717 square metres.

195 He goes on to describe Boronia Heights at present as characterised by low cost housing developed in the 1970s through to the 1990s. The accommodation, construction, style is considered inferior to new product that is being released in new extensions of residential estates.

196 He goes on to say that the property market as of July 2003 had just experienced a period of almost unprecedented growth in property values within the South-East Queensland property market. Significant statistical growth in property values have seen median values in Boronia Heights record a 15% increase per annum growth in property values in the period from July 2000 to July 2003. This growth cycle ended during the middle of 2004 and since then property values have reached a plateau in most areas.

197 He also explains that there was little growth in property values in 1999 to 2001 and there is evidence of properties selling below contract price with resales in a two-year period after the initial date. Mr Duncan approached the valuation by two methods.

198 He expresses the view that construction costs for residential turnkey building projects fell in the range of $700.00 to $800.00 per square metre in 2000. The contract construction cost of $108,147.00 for the project dwelling equates to a rate per square metre of approximately $695.00 which he said was at the lower end of the range of a dwelling of this nature. He adds that this construction cost includes a component for selling commissions and builder’s margins. He also expresses the view that vacant land sales in new estates as at 2000 were selling for $49,950.00 for allotments ranging from 600 to 800 square metres. These calculations support the reasonableness of the total purchase price of $158,097.00.

199 His second method of valuation is to rely upon sales evidence by purchasers who are local people and/or properties which are owner occupied of similar dwellings within a six-month period of the valuation date. He relied upon sales of modern three bedroom dwelling houses in Boronia Heights and four bedroom dwelling houses in the adjacent Regents Park in the absence of comparable four bedroom sales in Boronia Heights.

200 Mr Duncan relies upon the sale of land at 5 Elmwood Street, Boronia Heights on 14 February 2000 at $49,950.00 to achieve the market value of the land in question. This is the same price as Mr & Mrs Stumbles paid.

201 He also refers to a sale at 5 Conferta Place, Boronia Heights on 11 October 1999 of a ground level brick and tile detached dwelling with four bedrooms, two bathrooms and a two-car garage for $151,000.00. On paper this is very similar to the property purchased by Mr & Mrs Stumbles. He describes it as an overall inferior property. Of course the difference of some $7,000 between the sale price of this property and that acquired by Mr & Mrs Stumbles could be accounted for by extras in the finish.

202 He also relies upon the sales of three properties at Regents Park which he says is an adjoining suburb for $145,000.00, $153,500.00 and $174,000.00 occurring in September 1999 and February 2000. He describes the property sold for $174,000.00 as an overall superior property and a larger area of land than that purchased by Mr & Mrs Stumbles.

203 If these Regents Park properties are truly comparable then it would seem to place the market value of that purchased by Mr & Mrs Stumbles as at January 2000 at about $150,000.00 to $153,000.00 and not $158,000.00.

204 To establish the value of the property as at 1 October 2006 Mr Duncan relies upon the sale of 11 Elmwood Court, Boronia Heights on 11 May 2006 for $253,000.00, of 40 Mortlake Court, Boronia Heights on 14 August 2006 at $257,000.00 and on 3 Madigan Court, Boronia Heights on 14 August 2006 at $280,000.00.

205 In addition he refers to two properties at Regents Park sold in June and July 2006 for $300,000.00 and $312,000.000 as overall considered superior to the subject property. He concludes that the market value as at 4 January 2000 was $158,097.00 and as at 5 October 2006 $280,000.00.

206 If Mr Duncan is correct in his valuations then there has been an increase in value over the past six years of approximately 77%.

207 On the other hand Mr Hamilton, a registered valuer in Queensland, reported to the defendant’s solicitors that the market value of the subject property as at 27 December 1999 was $127,300.00 – that is $30,797.00 less than the contract price.

208 He reaches this value by comparing it with four other properties at Boronia Heights.

209 The first is at 11 Elmwood Court which was sold in July 2001 for $104,000.00. This property had only three bedrooms, one bathroom, and a single lock up garage and is an older house. I would not regard this as really comparable with the house purchased by Mr & Mrs Stumbles which has four bedrooms and a double lock-up garage.

210 The second is at 21 Mortlake Crescent, Boronia Heights sold in March 2000 for $105,000.00. This is also an older house but does have four bedrooms, two bathrooms and a double lock up garage.

211 The third is at 19 Colburn Court sold in October 1999 for $104,500.00. This has only three bedrooms and is an older house.

212 The fourth is at 12 Maclean Drive, Boronia Heights sold in January 2000 for $125,000.00. This is an older house comprising four bedrooms, only one bathroom and a double lock up garage.

213 As a further check on his values, Mr Hamilton assesses the value of the land at $45,000.00 instead of $49,895.00. He assesses the cost of erecting the dwelling at $475.00 per square metre for 155.4 square metres totalling $73,800.00 adds $8,500.00 for the ground improvements and gets a cost of $82,300.00. Adding these figures together he gets a market value of $127,300.00.

214 The cost of $475.00 per square metre is disputed by the evidence of Mr Kevin Hutchinson a builder and developer of some experience who testified that for this price one would get a building to a “lock up” stage which is a brick veneer skin with no linings, no kitchen, no carpet, no curtains or light fittings or TV antenna and no bathroom fittings. It is basically a shelled house.

215 To bring a dwelling to what he calls a “turnkey package” comprising carpets, light fittings, TV antenna, turf backyard would cost $680 to $700 per square metre.

216 Mr Kosseris, also a long experienced builder and developer, expressed the view that the building cost of $475.00 per square metre used by Mr Hamilton is unrealistic because it does not refer to the cost of building a completed house. A cost of $475.00 per square metre would refer to a bare shell with no concrete slab and no interior fittings. In his view based on his experience over many years a building cost of $475.00 per square metre would miss out significant elements that any purchaser would expect as part of a finished home including bathrooms, kitchens, driveways, fencing or even a building constructed on a proper concrete footing or raft.

217 In his statement he says that, in 1999/2000, costs for building a typical home in New South Wales and South-East Queensland were closer to $650.00 per square metre. He says that he worked on an estate developed and sold in 2001 by Mancorp at Pebble Beach in Queensland where the cost was $678.00 per square metre. He adds that even a bare shell omitting such items as bathrooms, driveway, fencing, landscaping left the building costs of $558.00 to $580.00 per square metre.

218 In evidence he said that these costs were based upon actual homes that were built by the company that he worked for.

219 I shall return to a further analysis of Mr. Hamilton’s valuation system later.

Summary

220 Mrs. Stumbles did complain of being rushed when at the Gold Copast Looking at properties. But she also conceded that she and her husband were shown properties within their price range before they selected the particular house/land package at Boronia Heights.

221 Her main complaint was that she could not find a tenant at the promised rent of $180.00 per week. But the plaintiff’s company had put its money where its promise was and gave Mr. and Mrs. Stumbles a written guarantee for that amount of rent – a guarantee which it duly honoured.

222 Furthermore, Mrs. Stumbles agreed that she still has the house which is tenanted. She is receiving rent and it does not seem now such a bad investment.

223 The rate of increase in value over the past six years is about 77%. Whilst that may be slightly less than the statistical median increase in Boronia Heights, it is not so much less that I could be satisfied on the balance of probabilities that Mr. and Mrs. Stumbles paid an exorbitant price.

Mr. and Mrs. Stark

224 Mr and Mrs Stark lived in Canberra. They received a brochure from Park Trent Investments in March 1999 inviting them to attend a seminar to be held at the Tuggeranong Country Comfort Hotel.

641 The next purchasers were Mr and Mrs Harriden.

642 In 2001 they had purchased a property at Carrara through Park Trent and were very satisfied with it.

643 Consequently when they received an unsolicited telephone call from Park Trent in about August 2002 offering properties they were interested.

644 They made their own way up to the Gold Coast in November 2002 and whilst there purchased a property at Lakeside on Varsity for $248,500.00.

645 Because of their prior experience, Mr and Mrs Harriden were somewhat more aware of the Gold Coast property market than other purchasers.

646 She said that they were not shown any properties other than the one they purchased because they did not ask to be shown them.

647 Problems arose because Easy Plan Finance did not arrange the type of loan covering all properties and their car as they had requested.

648 They still own the property.

649 Mr Duncan assessed the market value at the date of purchase at the same figure as the contract price. He assesses its current value at $285,000.00.

650 Mr Hamilton placed the market value at the date of purchase at $200,000.00. He concludes that an investor acting knowledgeably would be prepared to pay only $200,000.00 for the subject property in November/December 2002 and failing to acquire the property at that price he would seek to acquire alternative properties.

651 Although Mr Hamilton argues that, as at November 2002, one could have purchased a different similar but older property at a lower price, he provides no evidence that such an alternative property would have experienced a growth in value to the present day any different from that achieved by the subject property.

652 The evidence does not satisfy me on the probabilities that Mr and Mrs Harriden were ripped off by being charged an exorbitant price.

653 The next transaction relied upon is that involving Mr and Mrs Hughes neither of whom gave evidence.

654 In June 1999 they entered into a contract to purchase a property for $140,000.00.

655 However, they had a clause inserted in the contract which was conditional upon obtaining an independent valuation to establish that the value was within 5% of the contract price. The valuation came in below that limit.

656 Subsequently, Mr and Mrs Hughes were able to negotiate a reduction of the purchase price down to $133,000.00.

657 I am not satisfied that Mr and Mrs Hughes were being charged an exorbitant price.

658 As set out earlier the evidence relating to the other transactions to which reference has been made is such that I can draw no conclusions adverse to the plaintiff on them.

Findings

659 For reasons already stated I am satisfied on the balance of probabilities that the plaintiff was the person in effective control of all companies involved in the marketing of properties.

660 I am further so satisfied that the effect of representations made to potential purchasers at seminars, in-home visits, in pamphlets, in letters and in the Personal Investment Analysis is to assure them that Park Trent Investments is there to look after their interests and that they can trust Park Trent Investments to achieve the stated goal of “wealth creation”. There is no mention that Park Trent Investments is paid by the vendors of properties or that Park Trent Investments owes any duty to those vendors. There is no mention of the fact that Park Trent Investments’ duty to vendors may conflict with its duty to purchasers.

661 But, at the same time, it is notorious that values of real estate can increase at a greater rate than inflation and so, can be a means of wealth creation.

662 The evidence as a whole, to which I have already referred, satisfies me on the balance of probabilities that, once they landed on the Gold Coast, potential purchasers were effectively controlled by representatives of either Cross Country Realty and/or Easy Plan Finance. They were shown only the properties in respect of which the plaintiff’s companies had the benefit of agreements with the vendors. The combined representations of representatives of these two companies were designed to sell the properties as good investments. Easy Plan Finance was not an independent financial adviser. It was a further means of reinforcing the representations that had been made before the intending purchaser arrived in Queensland.

663 It follows that the only knowledge of local real estate market values which an intending purchaser had, was what he or she was told by the representatives of one or more of the plaintiff’s companies.

664 Not all of the purchasers were sold real estate at exorbitant prices but I am satisfied that Mr. and Mrs Weir were and Mr. Wilson was.

665 However, when one looks to the evidence of events occurring between December 2002 and June 2003 a picture begins to emerge.

666 As set out earlier in more detail, the Red Alerts in exhibit 82 reveal some nine transactions in which the valuations came in lower than the purchase price thereby causing the contract to be terminated.

667 In addition there is exhibit 91 which shows that, as at 28 March 2003, there were no less than eleven transactions pending in which the valuation was substantially lower than the purchase price.

668 What is significant about them is that these are valuations made contemporaneously with the transaction to which they refer. In this regard they are more reliable than the retrospective valuations made by Mr Duncan and Mr Hamilton.

669 Finally, there is the transaction involving Mr and Mrs Barry to which I have already referred, in which there was a clear attempt on the part of Mr Cross’ companies to sell a property which he agreed was at a price which had outstripped the market, would not perform for his clients and where there were better products available in the market place.

670 It may be that there were other transactions in this period which proceeded to conclusion. But what is significant about the transactions just mentioned is that the proposed purchasers had received advice independently of that given by Park Trent Investments and/or Cross Country Realty and/or Easy Plan Finance, or they were organising finance themselves and, consequently, obtained independent valuations which made them aware of the true market value of the property they were about to buy.

671 It is the combination of all of these considerations that satisfies me on the probabilities that the plaintiff was in fact ripping off Mum and Dad Investors by selling them investment properties at exorbitant prices.

672 Accordingly, I find the first defence to the first imputation established both under New South Wales and Queensland law.

THE SECOND PUBLICATION

673 I now pass to the second publication, Annexure B, published on 1 July 2003.

674 The imputation found by the jury to exist and to be defamatory is:-

“That the plaintiff is a rip off merchant.”

What does it mean?

675 It is first necessary to determine the meaning of this imputation. It has been held in Greek Herald v Nikolopoulos (2002) 54 NSWLR 165 at 172 and 173 that an imputation must be interpreted in its context and cannot be divorced from the surrounding words.

676 On behalf of the defendant it is submitted that this imputation derives from paragraph 5 of the article which is in the following terms:-

“Cross Country Realty and Easy Plan are associated with Wollongong business man, Ron Cross, who was condemned last month in Federal Parliament as a law breaker and rip off merchant.”

677 It is further submitted that this subject is returned to in paragraphs 16 to 19 of the publication which refer to Mr Cross being named in Parliament after the collapse and subsequent revival of two of his property marketing companies, Park Trent Investments and Everest Marketing.

678 Paragraph 17 says:-

“Park Trent and Everest were placed in voluntary administration in March with debts of more than $2 million, including hundreds of thousands of dollars in superannuation and entitlements owed to employees.”

679 To my mind the context in which the imputation appears is much wider than this. The headline is “Coast Marketeer Targeted In Raid”. Paragraphs 3 and 4 refer to the Office of Fair Trading investigators having raided the office of Cross Country Realty and Easy Plan Financial Services.

680 Paragraph 4 reads:-

“Investigators from the Office of Fair Trading’s Anti-marketeering Squad raided the Surfers Paradise office of Cross Country Realty last week and seized documents as part of an investigation into the activities of the firm and an associated financial planning company, Easy Plan Financial Services.”

681 It is also in this context that paragraph 5 says:-

“Cross Country Realty and Easy Plan are associated with Wollongong business man, Ron Cross who was condemned last month in Federal Parliament as a law breaker and rip off merchant.”

682 In my view this imputation is to be interpreted as an allegation that the plaintiff cheats people both in the course of his conduct of his marketing activities and in the course of his conduct towards employees.

683 I have already found that the plaintiff ripped off Mum and Dad Investors by selling them investment properties at exorbitant prices. Accordingly, there is no need for me to examine this aspect of the plaintiff’s business activities any further.

684 I do not regard the word “merchant” as having its normal meaning of a person engaged in the business of selling. To my mind the phrase “rip off merchant” is an idiomatic expression meaning a person who cheats. Thus, in the context of a poker game to say of a player that he is a rip off merchant means that he cheats in playing poker. In the current context it means that he is a person who cheats or acts dishonestly in relation to the conduct of his business and the treatment of his employees.

685 A considerable amount of oral evidence was given on this issue. However, the documentary evidence provides a clearer picture than the oral evidence.

Non Payment of Superannuation

686 I shall deal first with the actions of the plaintiff’s companies for which he was responsible in relation to the payment of superannuation for the benefit of his employees.

687 Since 1 July 1992 an employer has been obliged by law to pay into an approved fund an amount calculated as a percentage (varying from year to year) of an employee’s gross wages to provide for that employee a capital sum available to him or her on obtaining the statutory age.

688 If such payments were not made to an approved fund then, under the Superannuation Guarantee Scheme, that amount of superannuation is payable to the Australian Taxation Office.

689 The plaintiff’s companies did not pay superannuation to an approved fund on behalf of each employee. Accordingly, an equivalent amount plus charges became payable to the Australian Taxation Office by way of Superannuation Guarantee Charge.

690 The documents in exhibit 84 establish that, at least from mid 2001, substantial sums of money were owing by Park Trent Investments Pty Limited and Everest Marketing Pty Limited to the Australian Taxation Office in respect of unpaid superannuation guarantee amounts.

691 Some payments were made from 2002 but they were inadequate to cover the amount owing.

692 By letter dated 31 August 2001 the Australian Taxation Office advised Park Trent Investments that it was conducting a Superannuation Guarantee Audit to ensure compliance under the Superannuation Guarantee (Administration) Act 1992. The letter included an audit questionnaire.

693 On 5 September 2002 the Australian Taxation Office sent to Park Trent Investments a further notification of superannuation guarantee audit with a covering form.

694 By facsimile dated 9 December 2002 the ATO sent copies of the letter previously sent on 5 September 2002 to which no response had been received and asking for the information to be supplied by 23 December 2002.

695 On 6 March 2003 the ATO wrote a further letter regarding the current review of Park Trent Investments Superannuation Guarantee obligations for the years ending 30 June 1998, 1999, 2000, 2001 and 2002 and pointing out that there had been no response to its letters of 25 March 2002, 10 July 2002 and 5 September 2002.

696 At that stage the balance due was said to be $267,741.93.

697 The Australian Taxation Office ultimately conducted an audit and as appears at pages 64 and following of exhibit 84, the shortfall in payments of superannuation guarantee for the financial year ending 30 June 1998 was $12,632.94, for the year ending 30 June 1999 was $45,689.98, for the year ending 30 June 2000 was $35,679.91.

698 The shortfall in Superannuation Guarantee payments for Park Trent Investments Pty Limited for the year ending 30 June 1999 was approximately $7,500.00 and for the year ending 30 June 2001 was $71,253.60. For the year ending 30 June 2002 it was $64,763.52.

699 Assessments from the ATO to Everest Marketing Corporation appearing at pages 92 and following of exhibit 84 show amounts outstanding in respect of PAYE payments deducted from employees’ salaries which should have been paid to the ATO.

700 Similarly further documents in exhibit 84 show that substantial sums were owing by way of superannuation guarantee charges in respect of employees of Everest Marketing Pty Limited.

701 The plaintiff gave evidence that during 2002 his companies were experiencing cash flow problems because of the failure on the part of his client companies to pay due to their cash flow problems.

702 In view of the plaintiff’s practice of securing payment of his fees by obtaining an irrevocable authority from the developer/client to pay the moneys out of settlement moneys paid for the developer on settlement of a conveyance I find this difficult to accept.

703 However, even if it be true, it would not explain the shortfalls in payments of superannuation guarantee moneys and PAYE sums to the Taxation department during 1998, 1999 and 2000.

704 From about mid 2002 until March 2003 Park Trent Investments paid substantial sums to the ATO in reduction of its liabilities but by 14 March 2003 some $2 million remained owing.

705 On 24 June 2002 the ATO served Director’s Penalty Notices on Mr Cross which made him personally liable for the taxation liabilities of Park Trent Investments. On 12 July 2002 the plaintiff wrote to the ATO proposing a repayment plan for “our companies” taxation liabilities, see page 160 of exhibit 84.

706 On 8 October 2002 the plaintiff wrote a further letter making further proposals.

707 At page 149 of exhibit 84 is a letter from Park Trent Investments signed by the plaintiff stating that when Everest was incorporated Park Trent Investments undertook to pay any shortfall for Everest’s tax liabilities including group tax.

708 The plaintiff testified that payments made during this period were intended by him to cover only the superannuation liability. However, in his letter of 8 October 2002 (pages 161 and 162 of exhibit 84) he added:-

“Please also note that current g/tax, GST and sgc has been considerably reduced since our restructuring, and therefore could not escalate at the rate it did over the previous twelve months.”

709 It is clear that he is here referring to group tax, goods and services tax and superannuation guarantee contributions and not limiting the payments to the last mentioned.

710 At page 46 of exhibit 13 the liquidator, Mr Cvitanovic reports that the shortfall of superannuation guarantee payments in respect of Park Trent Investments was $171,472.22 and for Everest Marketing Corporation was $108,344.71 making a total of $279,816.93. To this were added interest and penalties totalling $106,113.10.

711 The payment to the ATO in respect of employee creditors was made as a priority. As a result the Australian Taxation Office received a dividend of 13.83 cents in the dollar in respect of employees of Park Trent Investments and 49.43 cents in the dollar in respect of employees of Everest Marketing Corporation.

712 Mr Cross is still paying moneys due to the ATO in respect of past taxation liabilities. These however relate to the general liabilities of Park Trent Investments and Everest Marketing Corporation for tax and are against him in his personal capacity as a director of those companies. The moneys paid do not relate to superannuation guarantee amounts.

713 I am comfortably satisfied that the plaintiff’s failure to make payments of superannuation into an approved fund for the benefit of his employees followed by his failure to make such payments to the Australian Taxation Office pursuant to the Superannuation Guarantee Scheme constitutes a ripping off of his employees and that in that context he was a rip off merchant.

The Administration and Liquidation

714 Park Trent Investments and Everest Marketing Corporation went into voluntary administration on 14 March 2003. Mr. Cvitanovic was appointed Administrator. On 10 April 2003, the companies went into liquidation and Mr. Cvitanovic was appointed liquidator.

715 There is a further aspect of the plaintiff’s activities leading up to the voluntary administration and liquidation which requires examination.

716 A number of marketing agreements between Park Trent Investments and developers are in evidence. See exhibit 14. Notwithstanding this a number of the irrevocable authorities which the plaintiff had the same developers sign were in favour of Park Trent Real Estate.

717 The plaintiff gave evidence that in each case a new agreement had been signed between the developer and Part Trent Real Estate. With the exception of agreements with Deena Investments on 13 March 2003, exhibit 11, and with Howard and Thomas on 29 April 2003 at page 73 of exhibit 14 no other such new agreements have been produced..

718 The evidence comfortably satisfies me that by this means the plaintiff diverted funds due to Park Trent Investments into Park Trent Real Estate.

719 The plaintiff said that he had new agreements made because he was aware that Park Trent Investments was in financial difficulties, he wanted to delete the word “investments” from the company’s name as there were problems with getting insurance for an investment company.

720 He also said that if developers got word that Park Trent Investments was in financial difficulties they would not pay whereas they would pay another company controlled by him which was not going into administration or liquidation.

721 Regardless of his stated motives the fact is that Mr Cross quite improperly diverted funds which should have been available to the administrator/liquidator for the benefit of creditors including the Superannuation Guarantee Scheme..

722 Mr Cross said that the moneys received by his other companies were in fact paid to the liquidator. This is only partially correct.

723 At the request of Mr Cross the liquidator agreed to carry on the businesses of Park Trent Investments and Everest Marketing Corporation during the administration and liquidation. However, this agreement was obtained on the basis that Mr Cross provided funds to enable those businesses to carry on. Mr Cross did provide funds for that purpose from other sources. Those sources included money received from developers by Park Trent Real Estate.

724 The plaintiff gave evidence that, as at the date of the voluntary administration all debts of Park Trent Investments and Everest Marketing had been paid except for amounts owing to Telstra and the ATO. He had arranged with Telstra to pay off the amount owing by instalments.

725 He agreed that he did not tell the liquidator that any moneys were owing to Park Trent Investments from developers because, as he claimed, no such moneys were owing. This claim was not true.

726 The fact that moneys were diverted from Park Trent Investments into other companies was not revealed to Mr Cvitanovic who described this conduct, (correctly in my view) regardless of the motivation, as a breach of duty as a director and as a form of larceny.

727 Furthermore, Mr Cross failed to reveal to the liquidator that moneys were due to Park Trent Investments from finance providers for fees by way of referral fee and trailers. Whilst it may be the case that from approximately 2001 after Easy Plan Financial Services was set up it became the recipient of trailers, prior to this time the recipient was PTI. See exhibit 45.

728 On 15 May 2003 a Deed of Sale was entered into pursuant to which Park Trent Properties Group Pty. Ltd. purchased the business of Park Trent Investments Pty. Ltd. (in liquidation) for a total price of $250,000.00.

729 On the same day a further Deed of Sale was executed whereby Park Trent Properties Group Pty. Ltd. purchased the business of Everest Marketing Corporation Pty. Ltd. (in liquidation) for a total price of $250,000.00.

730 Under clause 8 of the Deeds, Park Trent Properties Group Pty. Ltd. was obliged to offer employment to the current employees of both Park Trent Investments and Everest Marketing Corporation on the same or substantially the same as their pre-existing terms.

731 Those who accepted employment would be paid by the purchaser all outstanding benefits due to them – but not past superannuation benefits. Those who did not accept employment had to look to the liquidator for such matters.

732 Both Mr Cross and Mr Cvitanovic agreed that most, if not all, existing employees did accept employment from Park Trent Properties Group Pty. Ltd.

733 In addition Deeds of Release were executed under which a further $90,000.00 was paid to the liquidator.

734 The effect of all of this was that the business was kept going and the jobs of over 100 employees were preserved.

735 But there is a touch of irony in the evidence of Mr. Cvitanovic at page 981:-

Q. Why didn't you fix the price at $500,000.00 and not, say, at $730,000.00?
A. Because when I went looking for cash flow to trade this business on the only certainty I was going to have of paying my fees and out-of-pocket expenses and fee entitlements as I was trading on was to know there would be a certain price Mr Ron cross was going to pay for the business which, if I had not struck a deal with him for half a million dollars and shut down, would have walked into the businesses and picked them up for nothing.

736 There is also an allegation that Park Trent Investments and Everest Marketing had been insolvent since about March or April of 1999. It is not necessary for me to make any finding upon this issue.

737 The fact is that by failing to pay superannuation for his employees, by failing to pass on the PAYE tax deducted from employees to the Australian Taxation Office, by diverting funds from Park Trent Investments which should have gone to the liquidator for the benefit of creditors, the plaintiff was involved in dishonest conduct which had the effect of ripping off his employees, ripping off the liquidator and ripping off the creditors.

738 The defendant has, therefore, satisfied me on the balance of probabilities of the substantial truth of the imputation that the plaintiff is a rip off merchant.

739 Under these circumstances it follows that there will be judgment in favour of the defendant against the plaintiff on each of the imputations sued upon.

740 I invite submissions as to costs.

**********

07/03/2008 - Addition of a single omitted paragraph - Paragraph(s) 670

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Citations

Cross v Queensland Newspapers Pty Ltd [2006] NSWSC 1340

Most Recent Citation

Cross & Ors v Peebles [2013] QCA 26

Cases Citing This Decision

4

Cross v Queensland Newspapers Pty Ltd (No 2) [2008] NSWCA 120

Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80

Otto (a.k.a. Ashworth) v Gold Coast Publications Pty Ltd [2017] NSWDC 101

Cases Cited

1

Statutory Material Cited

2

Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41

CITATION:	Cross v Qld Newspapers Pty Limited [2006] NSWSC 1340 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	09/10/06, 10/10/06, 11/10/06, 12/10/06, 13/10/06, 16/10/06, 17/10/06, 18/10/06, 19/10/06, 20/10/06, 23/10/06, 24/10/06, 25/10/06, 26/10/06, 27/10/06, 30/10/06, 31/10/06, 01/11/06, 02/11/06, 03/11/06, 06/11/06, 07/11/06, 08/11/06, 09/11/06, 10/11/06, 14/11/06, 15/11/06, 16/11/06,17/11/06
JUDGMENT DATE :	6 December 2006
JURISDICTION:	COMMON LAW - Defamation List
JUDGMENT OF:	Cooper AJ at 1
DECISION:	Judgment in favour of the defendant against the plaintiff on each of the imputations sued upon.
CATCHWORDS:	Substantial truth
LEGISLATION CITED:	Defamation Act 1974 (NSW) Defamation Act 1889 (QLD)
PARTIES:	Ronald Malcolm Cross Queensland Newspapers Pty Limited
FILE NUMBER(S):	SC 20191/03
COUNSEL:	Mr C Evatt/ Ms J Rawlings for Plaintiff Mr J.S. Wheelhouse SC / Mr M Richardson for Defendant
SOLICITORS:	Richard Licardy & Co Solicitors & Attorneys-at-law for Plaintiff Thynne & Macartney (Brisbane) Kemp Strang (Sydney agents) for Defendant

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	20191/03