Dilma Taxi Pty Ltd v Yildiz
[2011] VCC 1389
•18 November 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL LIST
GENERAL DIVISION
Case No. CI-10-03798
| DILMA TAXI PTY LTD | Plaintiff |
| (ACN 111 850 956) | |
| v | |
| SULEYMAN YILDIZ | First Defendant |
| and | |
| MUNEVVER YILDIZ | Second Defendant |
| and | |
| REYHAN YILDIZ | Third Defendant |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9, 10, 14-17 and 20-24 June 2011 |
| DATE OF JUDGMENT: | 18 November 2011 |
| CASE MAY BE CITED AS: | Dilma Taxi Pty Ltd v Yildiz & Ors |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1389 |
REASONS FOR JUDGMENT
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| Subject: | CONTRACTS |
| Catchwords: | Assignment of taxi licences – parol evidence rule – illegality. |
Legislation cited: Transport (Compliance and Miscellaneous) Act 1983, s.150.
Cases cited: | Austwide Institute of Training Pty Ltd v Dalman (2009) 23 VR 45 – Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 – Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 – Dover Beach Pty Ltd v Geftine Pty Ltd (2008) 21 VR 442 – FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd (1993) 2 VR 343. |
| Judgment: | Judgment for the defendant. |
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Christie | Slater & Gordon Ltd |
| For the Defendants | Mr S Hay | Maurice Blackburn Commercial Lawyers |
| HIS HONOUR: |
1 This proceeding concerns the assignment to the plaintiff of six taxi licences held by the first defendant with the second defendant or, in one case, the third defendant. The second defendant is the wife of the first defendant and the third defendant is their daughter.
2 The amount in dispute was indicated as approximately $400,000 at the commencement of the trial. The parties sensibly agreed to an order by consent pursuant to Rule 44.06 of the County Court Civil Procedure Rules 2008 for the forensic accountants engaged by each party to confer. They met and agreed upon quantum at $190,281.00 should I find for the plaintiff on liability. Even with this agreement, the hearing lasted eleven days.
Background
3 Dogan Hayirli, a director of the plaintiff, and the first defendant had both been involved in the taxi industry for some time, Hayirli since 1992 or 1993 and the first defendant since 1987. They were both of Turkish descent and knew each other well, having first met in 1993 or 1994 at taxi ranks. They were both successful taxi operators. Hayirli stated that the plaintiff presently has eleven taxis on the road and around 2008 and 2009, fifteen or sixteen taxis. The defendants have fourteen taxis on the road at the moment.
4 Six assignments of taxi licences were made to the plaintiff as follows:
Licence Taxi Assignor Date of Period of Age Limit
No No Assignment Assignment of Taxi
1 MT2465 M7634 First and Second 27-2-2007 1.3.07 to December
Defendants 28.2.10 2011 (3 years)
2 MT5875 M6249 First and Second 21-3-2007 28.3.07 to August
Defendants 27.3.10 2014
(3 years) (of
replacement
vehicle)
3 MT5668 M7935 First and Second 13-4-2007 14.6.07 to November
Defendants 13.6.10 2012 (3 years)
Licence Taxi Assignor Date of Period of Age Limit
No No Assignment Assignment of Taxi
4 MT2933 M7454 First and Third 14.11.2008 21.11.2008 January
Defendants to 2015
21.11.2011 (of (3 years) replacement
vehicle)
5 MT6210 M4258 First and Second 8-12-2008 11.12.08 to September
Defendants 10.12.10 2013 (2 years)
6 MT6406 M4553 First and Second 8-12-2008 16.12.08 to August
Defendants 15.12.10 2013 (2 years)
Statutory and Regulatory Requirements
5 To understand what is in issue in this proceeding, it is necessary to look at the statutory and regulatory requirements relating to the operation of taxis.
6 Section 150 of the Transport (Compliance and Miscellaneous) Act 1983 (“the Act”) provides:
“150 Assignments
(1) A holder of a licence to operate a taxi-cab (hereafter in this section referred to as the assignor) may apply to the licensing authority for authority to assign to a person specified in the application (hereafter in this section referred to as the assignee) his right to operate a vehicle under the licence. (1A) … (2) The licensing authority may grant any application under subsection (1) or may refuse any such application.
(2AA) Without limiting subsection (2), the licensing authority must refuse an application unless the assignee is accredited under Division 4 as a taxi-cab operator.
(2A) … (2B) … (3)
Where the licensing authority grants an application under subsection (1) the licensing authority shall upon payment of the appropriate application fee determined under section 147B authorize the assignment of the right to operate a vehicle under the licence.
(4)
An authority under this section shall be subject to such of the following conditions as are applicable in the circumstances, namely:
(a)
That an agreement containing covenants in the form of Schedule 7 or to the like effect be entered into by the assignor and the assignee and a copy thereof lodged with the licensing authority before the assignee operates a vehicle under the assignment;
(b)
That if the assignee proposes, in the course of exercising his rights under the assignment, to operate a vehicle owned by or under the control of the assignor the assignor and the assignee shall enter into an agreement approved by the licensing authority for leasing the vehicle for the period of the assignment of the rights under the licence;
(c)
That the assignee shall for the purposes of this Division and the regulations made under this Division have all the privileges, duties and responsibilities of the assignor as holder of the licence with respect to the operation of the vehicle under the licence—
and subject to such other conditions, limitations and restrictions—
(d) as are prescribed; or (e) as the licensing authority considers are appropriate. (4A) An assignment or purported assignment under this section is of no
effect if—
(a)
it is not authorised by the licensing authority under this section; or
(b) it is not made in writing; or (c)
subject to subsection (4B), it is not for a fixed period of 3 years or less.
(4B)
An assignment under this section may provide for the termination of the assignment in specified circumstances before the expiry of the period of the assignment.
(4C) An assignment under this section cannot be renewed and cannot
be varied so as to extend the period of the assignment.(4D) Nothing in subsection (4C) prevents a fresh application being made under subsection (1) for authority to assign the right to operate a vehicle under a licence to operate a taxi-cab to an assignee or former assignee of that right.
(5) The assignee of a licence under this section shall not assign or
attempt to assign his rights under the assignment.… (7)
Unless sooner cancelled under subsection (6) or otherwise terminated, an assignment under this section ends at the expiration of the period of the assignment.”
7 The Act was previously known as the Transport Act 1983. Its title was changed by s.199(1) of the Transport Integration Act 2010.
8 Section 150 of the Act refers on a number of occasions to “the Licensing Authority”. The Licensing Authority is defined in s.2(1) of the Act to mean the Secretary to the Department of Transport. “Licensing Authority” had previously been described in the Act as the Secretary to the Department of Infrastructure at the time of the assignment of Licence No. 1 on 27 February 2007 and the Director of Public Transport at the time of the assignment of Licence No. 5 on 8 December 2008.
9 However, throughout the trial, the Victorian Taxi Directorate (“VTD”) was regarded as the de facto licensing authority.
10 In Austwide Institute of Training Pty Ltd v Dalman (2009) 23 VR 45 at 47, the Chief Justice stated:
“… The VTD is an administrative unit of the Department of Transport … of the Victorian Government and is responsible for regulation of the taxi and hire vehicle industries. … .”
11 Mr Brian Hamill, senior accreditation and licensing officer with VTD, gave evidence that prior to the coming into operation on 1 December 2007 of s.150, ss. (4A), (4B), (4C), (4D) and (7) of the Act, which were introduced by the Transport (Taxi-cab Accreditation and Other Amendments) Act 2006, the VTD, pursuant to s.150(4)(e), had, in August 2003, determined that assignments of taxi licences were to be for a maximum period of three years. Thus, the legislative changes which came into effect on 1 December 2007 merely put existing VTD policy into legislative form. Section 273 of the 2006 Act provided that the amendments to s.150 of the Act did not have a retrospective effect.
12 VicRoads Vehicle Standards Information Bulletin No. 31 (December 2005), item 29, provided that the maximum age limit for a metropolitan taxi cab was 6.5 years from the compliant plate date, i.e., effectively from the date of manufacture. Thus, a vehicle could not operate as a taxi in the metropolitan area beyond this six-and-a-half-year period.
The Central Issue
13 Each of the six assignments was in a standard printed form which was prepared by Ron Flude, a broker at Silver Top Taxis in Carlton. Pursuant to, inter alia, s.150 and 150A of the Act, and Clauses 6 and 7 of the Transport (Taxi-Cab Licences- Market and Trading) Regulations 2005, these assignments had to be arranged through taxi brokers licenced by BSX Services Pty Ltd, a member of the Bendigo Stock Exchange Group. Each assignment contained details of the parties, the date, the licence number, the registration number of the taxi, the commencement date of the assignment, the length of the assignment, the assignment fee, and provided for a security deposit. Each assignment also contained covenants in the form of Schedule 7 to the Act as required by s.150(4)(a) of the Act and stated that the assignment was conditional upon the licensing authority granting approval for the assignment.
14 Although the circumstances leading to the execution of each assignment were slightly different, Hayirli stated that in addition, in each instance, he had made a prior oral agreement with the first defendant that he would be granted a further assignment at the end of the terms of assignment referred to in the table in paragraph 4 above for “the life” of the vehicle assigned and, for the second and fourth assignments, for the life of any replacement vehicle purchased during the term of the assignment. Hayirli expressed this by saying that the first defendant stated that he could have an assignment of the licences for as long as he wanted. The first defendant stated that he had indicated this to Hayirli in each instance provided he did not require the licences for members of his family and, in any event, that he would not assign the licences to others. Thus, Hayirli and the first defendant turned their minds to the further assignment of the licences but with the first defendant contending that the proviso applied to any further assignments.
15 The first defendant stated that in fact he did require the licences for members of his family since his daughter, the third defendant, who had undergraduate qualifications in arts and business, a Masters degree in business and a post- graduate qualification in accounting, had been diagnosed with cancer, underwent several operations for it and could not obtain suitable employment conditions outside the family. Further, he stated that other children had returned to Victoria from interstate. The first defendant gave evidence that since the assignments to the plaintiff had expired, he had operated the licences with the assistance of his children, especially his daughter. She described herself as the operations and marketing manager of the plaintiff, who was responsible for the day-to-day running of the plaintiff’s taxi business.
Particular Circumstances of Each Assignment
Licence No. 1
16 The vehicle in question was owned by the first and second defendants. It was a June 2005 vehicle and thus, at the date of assignment, 27 February 2007, it had a working life of almost five years remaining. A taxi driver, Isak Akpolat, had agreed with the first defendant to purchase the vehicle for the sum of $38,500 and to take a three-year assignment of the licence on the vehicle at the rate of $2,200 per month, with a $2,200 security deposit. He stated that the first defendant said:
“… you can use whole life this car if you want … .”
17 Akpolat however was unable to arrange appropriate finance to purchase the vehicle and enquired of the first defendant whether he would be prepared to enter into an arrangement with the plaintiff on the same terms. The first defendant told Akpolat that he was prepared to do so. Following negotiations between Hayirli and the first defendant, the plaintiff purchased the vehicle for $38,500 and Hayirli and the first defendant met at Silvertop Taxis in Carlton and the written assignment was executed on 27 February 2007.
18 Hayirli states that just prior to execution of the assignment, the first defendant attended the plaintiff’s workshop to allow Hayirli to inspect the vehicle and that when he asked him what the duration of the assignment was, he responded:
“Maximum of three years we can do it.”[1]
[1] T 114, L19
19 Hayirli states that he responded:
“We have to renew it because the life of the vehicle is five years old and
we have to renew this lease agreement.”[2]
and that Yildiz then responded:
“There is no problem. You can have – maximum we can do three years
and then we can renew it again.”[3]
[2] T 114, L20-21
[3] T 114, L22-23
20 Hayirli stated in evidence that if the first defendant had not promised to reassign the licence at the end of the three-year period, he would not have entered into the assignment in the first place.
21 The first defendant denied that he attended at the plaintiff’s workshop just prior to the execution of the assignment and stated that he did not agree to renew the assignment at the end of the three-year term. He states that he said to Hayirli prior to execution of the assignment:
“… at the end of the assignment if I’m going to operate it I will get back that licence, otherwise I wouldn’t take it away from you and give it to somebody else.”[4]
[4] T 476, L15-18
22 He stated that there was no discussion with Hayirli regarding the life of the vehicle.
23 The second defendant stated that she heard no discussion in respect of the life of the vehicle and that she was present at the meeting at Silvertop on 27 February 2007 when the assignment was executed. She stated that in general, she and the first defendant had indicated to others that they would not agree to licence assignments for the life of the vehicle.
24 There is an issue as to whether the second defendant executed the assignment on 27 February 2007. Her signature is printed, whereas on the third, fifth and sixth assignments it is in cursive form. Both the first and second defendants state that the second defendant was present at the execution of the first assignment and that she executed the assignment. The second defendant stated that she had four operations upon her right hand following an industrial accident in 1982. The hand was at times painful and this affected the consistency of her handwriting. Hayirli stated that she was not present at the meeting and that the first defendant wrote her name on the assignment. All signatures were witnessed by Flude, who did not give evidence.
25 I accept Mr Hay’s submission that whether or not the first defendant executed the assignment in the name of the second defendant only goes to the question of credit since it appears clear on the evidence that he had her authority to enter into the assignment on the terms it contained.
26 Akpolat stated that he told Taylan Unsalan (“Unsalan”), the first defendant’s son-in-law and a director of the plaintiff, that the first defendant had told him that any assignment of the licence would be for the life of the vehicle and that a further vehicle could be attached to the licence at the end of the age limit of the vehicle the subject of the assignment. Unsalan gave evidence of a telephone call with the first defendant:
“He said to me ‘more than five years left for taxi, you can use for taxi for
the next five-and-a-half years, and then I’m happy to buy this one’.”[5]
and in the same telephone call:
“I explained to him Isak told me this is $21,000 a month, $38,000, and three years’ contract and another three years’ contract. ‘You promised me exactly the same condition as well’? He say, ‘yes’. …”.[6]
[5] T 371, L25-27
[6] T 372, L4-7
27 Unsalan stated that he saw the first defendant shortly thereafter and asked him to confirm this since:
“… in three years I scared to buy because I buy that car for three years
too expense.”[7]
[7] T 372, L21-22
28 The first defendant denied having any discussion with Unsalan about the vehicle or the assignment.
Licence No. 2
29 The vehicle the subject of this assignment was owned in early 2007 by Akpolat. It was operated by him as a taxi pursuant to a licence which had been assigned to him by the first and second defendants. Akpolat enquired of the first defendant as to the terms of an assignment to the plaintiff to which he would agree, and an assignment fee of $2,200 per month was indicated. On the next day, Hayirli contacted the first defendant and agreed on an assignment fee of $2,200 per month. Akpolat sold the vehicle to the plaintiff.
30 When the first and second defendants went to Silvertop in Carlton to execute the assignment, on 28 March 2007, they state that it had already been signed by Hayirli. Hayirli states that he in fact was present at the time. Hayirli states that at the meeting on 28 March 2007, he told Yildiz:
“When you buy a new car you have to wait until the end of the car.[8]
. . .
If I replace after the lifespan of this car, you have to wait until the end of the new car’s – vehicle as well.[9]
… You can use this car, you can replace and use it until the end of the cars, because in this age I don’t have any plan for operating the licences.”[10]
and that the first defendant responded:
“There is no problem. I am not operating. I am operating only one car. I can buy one licence from someone else or I can get one of my licences from the other leases.”[11]
[8] T 120, L8-9
[9] T 120, L13-14
[10] T 120, L22-25
[11] T 120, L15-18
31 Hayirli gave evidence that when he asked the first defendant “How long it will be the lease agreement?”:
“He said you can do it three years, and then I ask him, I said ‘the life of the car is shorter than this, I have to replace another car and I have to operate the replacing cars’. He said, ‘how old is this car?’ I said, ‘two- and-a-half years left,’ and then he said ‘there is no problem, you can replace another car because I’m not operating any more, you can use the new car as long as you want’.”[12]
[12] T 188, L18-25
32 The first defendant states that prior to 28 March 2007, he spoke with Hayirli on the phone, stating that he would give him an assignment for three years, and that he said:
“… I’m going to give it for three years, if I don’t operate that licence then I
won’t take it back and give it to some body else.”[13]
[13] T 428, L8-10
33 The first defendant stated that the life of the vehicle was not discussed.
34 Again, there is the issue as to whether the second defendant signed her name on the assignment or whether this was done by the first defendant. Hayirli states that the first defendant wrote the second defendant’s name on the assignment agreement. The first and second defendants state that she wrote her name on the agreement and that Hayirli was not present when this was done. Again, Flude witnesses the signatures. Again, this issue only relates to credit but there is also the antecedent issue as to whether Hayirli had executed the assignment prior to the attendance of the first defendant and maybe the second defendant. The age limit of the assigned vehicle expired in September 2009. The plaintiff replaced this vehicle with a second-hand vehicle which had an age limit of August 2014.
Licence No. 3
35 This was a “bare” or “empty” licence, that is, it was not attached to a vehicle. The plaintiff purchased a vehicle to which this licence attached. In discussions, the first defendant had agreed to assign this licence to the plaintiff for the same fee as for licences no. 1 and 2, $2,200 per month, together with a $2,200 security deposit. A meeting was held at Silvertop on 13 April 2007 when the assignment was executed. Akpolat was present at that meeting. He states that he heard Hayirli speak to the first defendant:
“Mr Don told Suleyman Yildiz and his wife, he said look, I pay $5,000 in deposit and I buy the car, maybe cost me $60,000 like that, I don’t want you to take the contract finished, you take the licence because I want whole life vehicle.”[14]
and that the first defendant replied:
“No problem, no worries, this time is no problem, you can use whole
life.”[15]
[14] T 344, L11-15
[15] T 344, L17-19
36 Hayirli states that at the 13 April 2007 meeting, he said to Yildiz:
“If I bought, for example, new car now, five years lifespan of the vehicle, and three years after if you get your licence, that will give me big damage, because we are getting the loan from the bank, every month we have to pay the instalments and we can broke (sic) our business.[16]
. . .
Don’t touch the licence until the end of the life of the vehicle that are operating with your licences.”[17]
and that Yildiz replied:
“Trust me, if I change one day my mind, I don’t touch the licences until
the end of the life of the cars.”[18]
[16] T 126, L29-31; T 127 L 1-3
[17] T 127, L17-19
[18] T 127, L24-26
37 Hayirli stated that at this meeting, the first defendant required an extra payment of $5,000 since this was the assignment of a bare licence. Akpolat had earlier been told by the second defendant that he required a $5,000 payment on a bare licence.
38 Hayirli states that later in April 2007, he came across the first defendant in Barkly Square, Brunswick, and said to him:
“If you get your licences, the middle of the life of the vehicles, believe me
seriously it will give me a big damage.”[19]
[19] T 129, L15-17
and at a later meeting that month, again in Barkly Square, Brunswick, he said
to Yildiz:
“Don’t touch to my car until the end of the life of the car.”[20]
and that Yildiz replied:
“Dogan, don’t worry about this. I’m not operating.”[21]
[20] T 131, L5-6
[21] T 131, L7
39 Hayirli stated that if the first defendant had not promised to re-assign the licence, he would not have executed the assignment.
40 The first defendant stated that there was no discussion of further assignments at the Silvertop meeting on 13 April 2007 nor at the two subsequent meetings in Barkly Square. The second defendant stated that the first defendant did not say at the Silvertop meeting, “I will not touch your licences”. She was present at the later Barkly Square meeting and stated that the first defendant did not state at that meeting that all of his licences would be “coming to” Hayirli.
41 Both the first and second defendants deny that there was every a demand for a $5,000 additional payment and that this sum was ever paid. The third defendant was also present at the later Barkly Square meeting. She gave evidence of that meeting to the same effect as the second defendant.
Licence No. 4
42 In about December 2007, the first defendant found a licence and attached vehicle for sale. The purchase price for both was $500,000. The age limit of the vehicle was January 2010. The first defendant sought advice from Hayirli as to what price he should pay for the vehicle. He told Hayirli that the sum of $25,000 was being asked for the vehicle. Hayirli states that he advised the first defendant that this price was a little high but he should not abandon the deal for the sake of $5,000. Hayirli states that the first defendant told him that he wanted to run the vehicle as a taxi for six or seven months and then sell it to him for the same price. Hayirli stated that he told the first defendant that he would buy the vehicle and take an assignment of licence if he could place a new vehicle on the licence once the age limit of the vehicle the subject of the assignment was reached in January 2010, and that the first defendant agreed to this. After this discussion, the first defendant and the third defendant purchased the vehicle and the licence.
43 Hayirli stated that in November 2008, the first defendant telephoned him to discuss the assignment of the licence and sale of the vehicle. Shortly thereafter, there was a meeting in mid-November 2008 at the defendants’ home at Mentone. Hayirli and the three defendants were present. Hayirli states that at this meeting:
“I asked him if one day you change your mind you get your licence you
have to calculate the life of my cars, I told him and he promised me.”[22]
[22] T 198, L7-9
44 Hayirli stated that the first defendant told him at the meeting that he now wanted $28,500 for the vehicle. Hayirli stated that he responded:
“Mr Suleyman, if you are giving me a permit for buying another car after
the life of this car, it’s acceptable for me. I can accept.”[23]
[23] T 137, L28-30
45 He states that Yildiz responded:
“All my licence will stay with you as long as you can use it, you want to use. You will buy another licence, another vehicle after the life of this vehicle. Shouldn’t be any problem.”[24]
(sic)
[24] T 138, L1-4
46 He states that the second and third defendants said nothing at the meeting.
47 The first defendant states that during the December 2007 conversation, Hayirli requested that he be given the first opportunity to purchase the vehicle should the first defendant decide to sell it. The first defendant states that he responded that he had no plan to sell the vehicle at that time. However, by November 2008, he decided he wanted to sell the vehicle since the third defendant was in bad health, he was feeling tired and he had difficulty in finding drivers for the vehicle. Then the telephone conversation of November 2008 occurred. At the Mentone meeting, the first defendant states that he and the third defendant told Hayirli that the vehicle was for sale for $28,000 and that they were only prepared to give a two-year assignment of licence. Hayirli stated that he would be paying a high price for the vehicle and pressed for a three-year assignment, and eventually the first defendant and the third defendant agreed to this but made it clear that there would be no further assignment. Hayirli accepted this. The second and third defendants gave evidence to the same effect. The second defendant stated that both she and the first defendant had informed Hayirli that their family circumstances had changed and that they wanted to operate their licences themselves.
48 The second defendant stated that there was no mention of the age limit of the vehicle at the Mentone meeting.
49 The third defendant stated that at this meeting her father stated:
“… as you know from the beginning we have known each other for quite a while, I have always told you the same thing from the beginning, that come time for me to operate the licences myself I will recall my licence but you know, if I don’t do that, then I won’t take the assignment off you and reassign it to another party.”[25]
[25] T 645, L19-26
50 She stated that at that meeting:
“I indicated to him that our intention as a family had always been that we wanted to operate those licences ourselves, that had always been the plan and we were then in a position where I was back in Melbourne, my sister was in Melbourne, she had been married, my brother-in-law was also in the picture and we as a family now had the resources, basically the hands and the feet that could run the business and Mr Hayirli said well, after what I said and after what my father said that’s fair enough, they are your licences, you can recall them when you want.”[26]
[26] T 647, L2-12
51 Hayirli states that the assignment agreement dated 14 November 2008 was signed at Silvertop at Carlton. The three defendants state that it was executed at their Mentone home by the first and third defendants and Hayirli, and that Hayirli brought the assignment there for execution. All signatures are witnessed by Thinh Nguyen, an employee of Silvertop Taxis. The defendants stated that Nguyen was not present at their Mentone home when the agreement was executed.
52 I accept the submission of Mr Hay that while no material fact turns upon where the assignment agreement was executed, it is relevant to the precision of the witnesses’ recollection and their credit.
Licence No. 5
53 This licence had been assigned to Azem Atlihan. Atlihan gave evidence that he had been taking assignments of licences from the defendants for fifteen years. In early 2008, he purchased a 2007 Ford Fairlane to operate on this licence. It was in an accident soon afterwards and was off the road for a month and he then had financial and health problems. In late 2008, he decided to sell the vehicle. He had an Indian driver who was prepared to purchase the vehicle for $74,500. The first defendant however would not agree to an assignment of the licence to the Indian driver since he was concerned that he might have trouble in making the monthly assignment payments.
54 There was an issue going to credit as to whether a meeting was arranged at Silvertop in Carlton in November 2008 for the first defendant to meet the Indian driver. Atlihan states that such a meeting took place between him and the first and second defendants and the Indian. Prior to the arrival of the Indian, the first defendant informed him that he no longer agreed to the sale and associated assignment to the Indian. The Indian attended and was told this.
55 The first defendant stated that the meeting did not take place at Silvertop and that he never met the Indian. The second defendant was not cross-examined upon this.
56 Another associated issue which only goes to the witnesses’ recollection and their credit is whether the first defendant demanded an additional payment of $10,000 from Atlihan before he would release him from his obligations under the assignment to him. Atlihan stated that the first defendant required a payment of $10,000. Atlihan replied that he was unable to pay this sum. He states that finally it was agreed that he would pay the first defendant $7,500 provided Hayirli paid $67,500 for the vehicle.
57 Hayirli stated that the first defendant told him that the plaintiff could have the vehicle but that Atlihan would have to pay him $10,000. Hayirli states that Atlihan told him shortly thereafter that he had agreed financial details with the first defendant but that then Atlihan tried to sell the vehicle to the Indian driver instead of him, as the Indian had offered $75,000. Hayirli states that Atlihan told him that the first defendant had agreed to accept the sum of $7,500 from Atlihan instead of the $10,000 originally demanded. Hayirli stated that at about this time, the first defendant stated:
“My licences will stay with you forever.”[27]
[27] T 145, L29
58 Hayirli stated that the sum of $7,500 was paid by Atlihan to the second defendant at Silvertop.
59 The first defendant stated that he did not demand a payment of $10,000 from Atlihan and denied receiving the sum of $7,500. The second defendant gave evidence to the same effect.
60 So far as the actual assignment is concerned, Hayirli gave evidence that on 8 December 2008, he and the first defendant met at Silvertop to discuss the terms of the assignment. They agreed on a monthly assignment fee of $2,450. A standard assignment agreement was then provided which was for a two-year term. Hayirli states that he queried why it was for a two-year and not a three-year term, and that the first defendant replied:
“It doesn’t matter, 24 months after we will renew it, we will keep the
licence with you.”[28]
[28] T 206, L30-31; T 207, L1
61 He stated that the assignment agreement which is dated 8 December 2008 was executed on 11 December 2008 at a meeting between him and the first defendant. He states that the second defendant waited outside.
62 Atlihan stated that he was present on 11 December 2008, together with Hayirli and the first and second defendants. After this meeting, Hayirli told him that the first defendant had only assigned the licence for two years, and when Atlihan queried this, Hayirli responded:
“He said I don’t know. I asked him and he said it doesn’t matter, two years or three years, we can sign again, you can continue again, it doesn’t matter, you trust me, I trust you, he said like this.”[29]
[29] T 400, L11-15
63 The first defendant stated that in early December 2008, he told Hayirli that the length of the proposed assignment would be at least two years and could possibly be three years. He stated that however prior to the 11 December 2008 meeting, he and the second defendant met Hayirli at Silvertop and the second defendant told him that they could only assign the licence for two years since family circumstances had changed. Although Hayirli requested that the assignment be for three years, the first defendant states that he eventually accepted that it would only be for two years.
64 The second defendant gave evidence that at the 11 December 2008 meeting at Silvertop, she was in fact present together with the first defendant, Hayirli, Atlihan and Flude. At this meeting, she told Hayirli that the licence could only be assigned for two years. He pressed for a three-year term but she stated that it was two years maximum “take it or leave it” and that Hayirli eventually agreed to a two-year term. The second defendant stated that the first defendant indicated that if the defendants did not intend operating the licence, it would not be given to anyone else to operate.
Licence No. 6
65 This licence had previously been assigned by the first and second defendants to one, Ozgur Unver. In December 2005, the plaintiff purchased from Unver the vehicle to which the licence attached, and on 12 December 2005, took a written assignment of the licence from the first and second defendants for a three-year term. This was the plaintiff’s first business dealing with the defendants. After the assignment agreement was signed, Hayirli reported the following conversation with the first defendant:
“… he did a three years lease agreement. The life of the vehicle was
shorter than three years. I said I have to replace another car.”[30]
[30] T 81, L17-19
(sic)
66 The age limit of the vehicle expired in October 2008. The replacement vehicle was a 2007 model whose age limit expired in August 2013.
67 He states that Yildiz replied:
“You can use as you want.[31]
…
There is no problem. After the life of this car you can use it as you want.”[32]
[31] T 81, L19-20
[32] T 82, L2-3
68 The first defendant states that on 8 December 2005, in a telephone conversation with Hayirli, he said to him:
“I will lease that for three years. If I’m going to operate it then I will get it
back.[33]
…
If I don’t operate that licence I wouldn’t take it back from you and give it to somebody else.”[34]
[33] T 422, L10-12
[34] T 422, L13-15
69 The first defendant stated that there was no discussion regarding the age limit on the vehicle.
70 The second defendant’s evidence generally supported that of the first defendant.
71 In June 2008, a few months before the expiration of the age limit, Hayirli replaced the vehicle attached to Licence No. 6. He states that when the assignment in relation to Licence No. 6 was executed on 11 December 2008 at the same time as the assignment for Licence 5 was executed, the first defendant’s comment:
“It doesn’t matter, 24 months after we will renew it, we will keep the
licence with you.”[35]
[35] T 206, L30-31; T 207, L1
applied to Licence No. 6 as well as Licence No. 5.
72 The first defendant stated that at the meeting on 11 December 2008, there was no discussion regarding the age limit of the vehicle attached to Licence No. 6.
73 In relation to this assignment, Hayirli states that the first defendant demanded a further $5,000 payment. He states that he objected to this demand since the first defendant had stated he had told him he would only seek a premium in respect of a bare licence and not in respect of a renewal for licence. In any event, Hayirli states that he gave the first defendant $2,500. There was no written evidence of this payment, which was made in cash. The first defendant stated that he made no demand for payment and did not receive the payment of $2,500.
Post-Contractual Developments in 2009 and 2010
74 All the assignments, apart from that relating to Licence No 4, expired during 2010. The first assignment due to expire on 28 February 2010 was for Licence No. 1.
75 The first defendant stated that he told Hayirli in a telephone conversation in July 2009 that he was not going to reassign the licences then assigned to the plaintiff since the defendants intended operating the licences themselves. He stated that he had already collected licences from two other friends. While Hayirli conceded that a telephone call took place in July 2009, he stated that there was no discussion about the defendants retrieving their assigned licences.
76 The first defendant stated that he and Hayirli had a similar conversation two to three weeks later.
77 The first defendant further stated that in these two conversations, the vehicle attached to Licence No. 2, which reached its age limit in September 2009, was discussed, and that the second defendant stated to Hayirli that he should not buy a new vehicle expecting a further assignment of Licence No. 2. He stated that he told Hayirli that if he wished he could terminate the assignment prior to purchase of a new vehicle.
78 Hayirli denied that this second discussion occurred.
79 On 2 September 2009, the first defendant attended the plaintiff’s workshop to have one of his vehicles serviced. The first defendant states that on this occasion, he again confirmed to Hayirli that he was retrieving his licences. Hayirli denied that any such conversation took place. The first defendant further stated that Hayirli suggested a partnership with him but that he declined this proposal. Again, Hayirli denies that this occurred. Unsalan stated that he was not aware of a meeting on 2 September 2009 although he conceded that he had signed an invoice of that date.
80 On 9 November 2009, the first defendant stated that he attended the plaintiff’s workshop to have a vehicle serviced. The first defendant states that he reiterated to Hayirli that he intended collecting all his licences and that Hayirli replied:
“It’s your property so you can collect them.”[36]
[36] T 447, L23
81 Hayirli states that he asked the first defendant to grant re-assignments for the age limit of the vehicles assigned. The first defendant states that at this meeting, Hayirli again raised the possibility of a partnership.
82 By letter of 25 January 2010, the first and second defendants advised the plaintiff that Licence No. 1 would not be re-assigned. Similar letters were sent with respect to the other licences, apart from Licence no. 4, shortly before the expiry date of the assignments.
83 The first defendant stated that after the letter of 25 January 2010, he was telephoned ten or more times by Hayirli, who was very upset.
84 On 4 February 2010, a meeting was held at the plaintiff’s workshop. Present were Hayirli, Unsalan and the first defendant. The first defendant stated that he went to the meeting on 4 February 2010:
“… to help them, to extend some of the licences”.[37]
[37] T 449, L28-29
85 Unsalan recorded their discussions on his mobile telephone. Both Hayirli and Unsulan stated that most of the discussion was recorded apart from introductory formalities. The first defendant stated otherwise. The first defendant was not aware that their discussions were being recorded. The first defendant stated that at the meeting, both Hayirli and Unsalan were aggressive and he felt physically threatened. He stated:
“Like I was almost going to faint, I had shaking hands, my feet and hands
were shaken.”[38]
[38] T 452, L26-28
86 On 12 February 2010, the plaintiff’s present lawyers wrote to the first and second defendants. The letter indicated that as well as acting for the plaintiff, they were also acting for Akpolat and another assignee from the defendants. The letter alleged that the first and second defendants had represented that there would be further assignments for the age limit of the vehicles to which the assigned licences attached and that s.9 of the Fair Trading Act 1998 (Vic) was thereby breached.
87 By letter of 22 February 2010, GSM Lawyers, acting for the first and second defendants, denied the alleged representations and indicated merely that the defendants had indicated that the licences would not be assigned to a third party but that their clients reserved the right to apply the licences for their own use.
88 In March 2010, Unsulan telephoned the first defendant. He stated that he believed that the first defendant had written his wife’s signature on some of the assignment agreements and that he was going to report this to VTD and that this could affect the defendants’ accreditation as a taxi cab operator. The first defendant had this call on loudspeaker. He and the third defendant stated that Unsulan was threatening in his tone and language. Unsulan denied this.
The Pleadings
89 In its further Amended Statement of Claim dated 10 June 2010, the plaintiff pleads, with respect to Licences 1 to 5, an agreement between it and the first and second defendants (except in the case of Licence No. 4, where the agreement alleged is with the first and third defendants) that the plaintiff would be granted successive assignments until the expiry date of the age limit on the vehicle assigned and, in the case of Licences No. 2 and 4, until the expiry date of the age limit on a replacement vehicle.
90 The agreement in each instance is stated to be partly oral and partly to be implied.
91 Insofar as it was oral, the plaintiff relies upon conversations between Hayirli and the first defendant.
92 Insofar as it was to be implied, “it was to be implied by operation of law, further or alternatively to so as to give business efficacy to the parties’ agreement and their relationship … “.
93 The plaintiff then pleads that the written assignment agreements were entered into pursuant to the oral assignment agreements already made, presumably to comply with the requirements of the VTD and/or the Act.
94 So far as the assignment of Licence No. 6 is concerned, the plaintiff relies, firstly, upon an assignment of the licence on taxi no. 4553 made in December 2005. As with the other assignments, it alleges that this assignment, which was partly oral and partly to be implied, provided for successive assignments of the licence until the expiration of the age limits on the vehicle assigned and a replacement vehicle. It alleges that pursuant to this agreement, a written assignment was entered into on 12 December 2005. It then alleges that from about 8 July 2008, a replacement vehicle was substituted and that then the sixth written assignment was entered into on 11 December 2008 in pursuance of the December 2005 assignment.
95 The plaintiff alleges breach of the agreements, in that the defendants refused to grant further assignments of the licences. It then pleads alternatively that the defendants have repudiated the assignment agreements and that they have accepted such repudiation. The plaintiff further or alternatively alleges misleading or deceptive conduct and a breach of the Fair Trading Act 1999 (Vic) as in force prior to the commencement of the Fair Trading Amendment (Australian Consumer Law) Act 2010 (Vic), alleging that the defendants represented to the plaintiff that successive further assignments of the licences would be granted. Further or alternatively, the plaintiff relies upon estoppel, alleging that the defendants represented to it that there were to be successive further assignments and that they acted on the basis of such representation.
96 In their Defence, the defendants assert that the assignment agreements between the parties were partly oral and partly written. Insofar as they were oral, they were constituted by conversations between Hayirli and the first defendant, and insofar as they were written, they were comprised by the written assignments.
97 The defendants assert that the first defendant regularly told Hayirli that he intended operating the assigned licences himself once his family members returned to Melbourne from interstate and were able to assist. The defendants further rely upon s.150 of the Act and assert that any agreement relating to the granting of further assignments would be in breach of this provision.
98 Mr Christie submitted that the defendants, in their Amended Defence to Amended Statement of Claim dated 14 April 2011 were not relying upon the written assignments as forming the entirety of the contract between the parties but that these were part of an earlier “wider” or “overarching” oral agreement to assign the licences. I accept Mr Hay’s submission that a proper reading of the defendants’ pleading is that, in the context of VTD requirements, and then s.150A of the Act, Hayirli and the first defendant orally agreed upon the terms of an assignment which were then reduced to writing.
Discussion and Conclusions
99 It is my view that there was no agreement between the plaintiff and the defendants to grant further assignments of each of the six licences as alleged by the plaintiff. I have so concluded on four grounds.
100 Firstly, the six executed written assignments make no mention of the plaintiff’s right to obtain an assignment for a further term. The law, for very good reason, has traditionally placed great weight and reliance upon written and signed agreements. Hence the parol evidence rule. In Contractual Interpretation: A Comparative Perspective (2011) 85 ALJ 412, the author, the Honourable JJ Spigelman AC, former Chief Justice of New South Wales, states the parol evidence rule as follows:
“… when parties have reduced their contract to writing, a court should
only look to the writing to determine any issue of interpretation.”
101 In Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471, at 483, the Court stated:
“The respondents each having executed a loan agreement, each is bound by it. Having executed the document, and not having been induced to do so by fraud, mistake, or misrepresentation, the respondents cannot now be heard to say that they are not bound by the agreement recorded in it. The parol evidence rule, the limited operation of the defence of non est factum and the development of the equitable remedy of rectification, all proceed from the premise that a party executing a written agreement is bound by it. Yet fundamental to the respondents' case that the operative agreements between the parties were wholly oral, and reached earlier than the execution of the written agreements, was the proposition that the written agreements subsequently executed not only may be ignored, they must be. That is not so. Having executed the agreement, each respondent is bound by it unless able to rely on a defence of non est factum, or able to have it rectified. … .”
(my emphasis)
102 At page 416 of Contractual Interpretation, the author states:
“In Equuscorp Pty Ltd v Glengallan Investments Pty Ltd … a joint
judgment of five judges of the High Court emphasised:
• a person executing a written agreement is bound by it; • the parole evidence rule accords with the objective theory of contract; • oral agreements often give rise to ‘difficult, time consuming expensive and problematic’ disputation; • the rule should be maintained, recognising that it allows for exceptions in ‘established categories’; • the growth of international trade with parties for different legal systems reinforces the role of the rule. It is noteworthy that even Australia’s most reform-minded judge, Justice Kirby, formerly of the High Court, has strongly reaffirmed the rule and its core justification. His Honour emphasised:
•
the ‘practical utility’ of the parole evidence rule including a ‘desire to uphold the more formal bargains’ and ‘to discourage expensive and time consuming litigations about peripheral and disputable questions’;
•
if the language is clear no extrinsic material ‘authorises a refusal to give the clear words their legal effect’;
•
the growth of international trade supports the policy for ‘adhering to a general principle that holds parties to their written bargain.
… .”
103 To similar effect, in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165, at 182, the Court stated:
“Legal instruments of various kinds take their efficacy from signature or execution. Such instruments are often signed by people who have not read and understood all their terms, but who are nevertheless committed to those terms by the act of signature or execution. It is that commitment which enables third parties to assume the legal efficacy of the instrument. To undermine that assumption would cause serious mischief.”
104 At page 183, the Court referred to:
“… the significance attached by the law to the presence of the signature and also to the absence of any grounds, such as a plea of non est factum, which at common law would render the contract void and of any grounds, such as misrepresentation, which might attract equitable relief … .”
105 There is a heavy onus upon the plaintiff to establish on the balance of probabilities that it was entitled to further assignments in the face of the wording of the executed written assignments which state, to the contrary, that the assignments are only for the periods stated therein and are silent as to any further assignments.
106 So far as the assignments of Licences 1, 2 and 3 are concerned, a relevant consideration, which does not assist the plaintiff, is that VTD policy then in force required taxi licence assignments to be for a maximum period of three years.
107 Secondly, so far as assignments of Licences 4, 5 and 6 are concerned, the question of illegality arises. These assignments are governed by the amended provisions of the Act. Section 150(4A) provides that the assignment must be in writing and must not be for a period beyond three years, failing which the assignment “is of no effect”. Subsection (4C) is supportive of subsection (4A).
108 In Dover Beach Pty Ltd v Geftine Pty Ltd (2008) 21 VR 442, Ashley JA conveniently refers to relevant authorities on the question of illegality.
109 He refers to Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410, at 413-4, where Gibbs ACJ stated:
“The question whether a statute, on its proper construction, intends to vitiate a contract made in breach of its provisions, is one which must be determined in accordance with the ordinary principles that govern the construction of statutes. ‘The determining factor is the true effect and meaning of the statute’ (St John Shipping Corporation v Joseph Rank Ltd). ‘One must have regard to the language used and to the scope and purpose of the statute’ … One consideration that has been regarded as important in a great many cases, of which Cope v Rowlands is a notable example, is whether the object of the statute — or one of its objects — is the protection of the public. An antithesis is commonly suggested between an intention to protect the public and an intention simply to secure the revenue, and it is said that when the former intention appears the contract must be taken to be prohibited, whereas if the intention is only to protect the revenue the statute will not be construed as imposing a prohibition on contracts. The question whether the statute was passed for the protection of the public is one test of whether it was intended to vitiate a contract made in breach of its provisions, but I am with respect in full agreement with the views expressed in St John Shipping Corporation v Joseph Rank Ltd and Shaw v Groom, that it is not the only test. It would be contrary to reason and principle to allow one circumstance to override all other considerations in the interpretation of a statute. As Devlin J said in St John Shipping Corporation v Joseph Rank Ltd: ‘The fundamental question is whether the statute means to prohibit the contract. The statute is to be construed in the ordinary way: one must have regard to all relevant considerations and no single consideration, however important, is conclusive’.”
110 He also refers to Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215, at 242, where Kirby J stated:
“1
The first task of a court is to ascertain the meaning and application of the law which is said to give rise to the illegality affecting the contract. The law in question may be a rule of the common law but nowadays it is much more likely to be a provision of legislation. The substantial growth of legislative provisions affecting all aspects of the society in which contracts are made presents a legal environment quite different from that in which the doctrine of illegality was originally expressed. Courts, in this area, are faced with a dilemma. They do not wish to deprive a person of property rights, eg under a contract, least of all at the behest of another person who was also involved in a breach of the applicable law. On the other hand, they do not wish to ‘condone or assist a breach of statute, nor must they help to frustrate the operation of a statute’. That is why the first function of the court, where a breach of a legislative provision is alleged, is to examine the legislation so as to derive from it a conclusion as to whether a relevant breach is established and, if so, what consequences flow either from the express provisions of the legislation or from implications that may be imputed to the legislators. Little, if any, assistance will be derived for the ultimate task of a court from examination of the terms of other statutes or judicial classifications of them or by reference to their meaning as found.
2
Occasionally, the legislation in question will expressly provide for the consequence of illegality upon contracts made or performed in breach of its terms. In such a case the entire contract may, depending on the terms of the statute, be void and its performance unlawful as contrary to the express will of Parliament. The duty of a court in such a case is clear. No question of the good faith of the parties or their knowledge or intention is involved. Public policy is not, as such, raised, unless it be the general public policy that the courts should uphold the law of the land. What is presented is a pure question of the interpretation and enforcement of the legislation. This is a familiar task performed by courts with the usual tools of statutory construction.
. . . .”
111 Here, in my view, paragraph 2 of Kirby J’s judgment is applicable. The wording that an assignment entered to in breach of s.150(4A) “is of no effect” is in the strongest terms. As indicated, here the plaintiff relies upon oral assignments, with the written assignments entered into subsequently in pursuance of the oral assignments. Such alleged oral assignments would clearly be in breach of subsection (4A)(a), (b) and (c). Here it will be noted that the focus is not on such consequential issues as whether the plaintiff is obliged to make the monthly payments of the assignment fee, the type of issue raised in many of the cases. The issue is simply whether, in each instance, the alleged oral agreement made in breach of the Act “is of no effect”. In my view it is.
112 Mr Christie submitted that the assignment of Licence No. 6 is not caught by the provisions of s.150(4A) of the Act, in that the assignment is there made in pursuance of the oral assignment agreement made on or about 12 December 2008. In my view there is no merit in this submission. At best, this assignment gave the plaintiff a right to the assignment dated 8 December 2009 entered into on 11 December 2008. Section 150(4A) applies to this assignment.
113 Thirdly, the terms of any purported further assignment are shrouded in uncertainty and impossible to formulate.
114 What would be the period of the further assignment? The first three agreements were for a period of three years. The fourth assignment was only offered for a period of two years but then, after negotiations, was increased to three years. The last two assignments were for a period of two years. In the case of the second and fourth licences, it would appear that a further assignment would be necessary until the age limit of the vehicle was reached. The age limit of the replacement vehicle, of course, was not known at the time of entering into the assignment. There was no agreement reached as to the monthly assignment fee payable under the alleged further assignment. Hayirli gave evidence that for the nine assigned licences the plaintiff has at the moment, it pays between $2,350 and $2,500 plus GST per month. A further issue is as to whether a premium would be paid to the defendants on re- assignment – Hayirli stated that such a premium was paid on the sixth assignment.
115 Fourthly, I have concluded that there is no agreement to grant further assignments as alleged on the basis of the evidence before me.
116 Much depends, unfortunately, upon the assessment of Hayirli and the first defendant as witnesses. This task was made more difficult by the fact that they both gave evidence through an interpreter. This made it difficult to judge the demeanour of these two witnesses. This assessment was not assisted by a different form of expression, no doubt due to cultural differences, which is evident frequently in answers given and in particular, in the transcript of the meeting on 4 February 2010. Often answers given were unresponsive and it was impossible to determine whether this was due to evasiveness on the part of the witness or poor translation by the interpreter. Other witnesses gave evidence through an interpreter and the same problem occurred.
117 The plaintiff’s witnesses, as appears above, gave evidence to the effect that the first defendant said that the plaintiff could have a reassignment or, it would seem, reassignments for the age limit of the vehicle or replacement vehicle or, as some witnesses said, that he could have an assignment of the licences for as long as he wanted. As mentioned, Akpolat had made a claim against the first and second defendants. Akpolat stated that he was a friend of Unsalan and had his taxi serviced by the plaintiff. He cannot be regarded as a totally independent witness. By contrast, the three defendants gave evidence that assignments would be made to the plaintiff provided the defendants did not want to operate the licences themselves and that in any event, they would not assign the licences to a third party. Mr Christie submitted that the evidence of the second and third defendants was too similar to that given by the first defendant and appeared to have been rehearsed. I note however that the second and third defendants were out of court when the first defendant gave his evidence.
118 I note the conflict in the evidence as to “cash payments”. The third defendant stated that the first defendant had told her about such practices in 2008 or 2009 whereas the first defendant denied that he had ever done so.
119 Mr Christie submitted that Atlihan was the only truly independent witness in the proceeding, and I accept this. His evidence is only relevant with respect to the assignment of Licence No. 5 and he conceded[39] that he did not hear any discussions between Hayirli and the first defendant regarding the licence. His evidence therefore is of limited compass.
[39] T 399, L17-19
120 As appears above, there was conflict in the evidence given by the plaintiff’s witnesses and the defendants’ witnesses in relation to ancillary matters also: for example, where was the assignment of Licence No. 4 executed?
121 The evidence with respect to the execution of two of the agreements by the second defendant and whether or not her name was printed in by the first defendant causes me concern, although I am not in a position to make a definite finding upon this. This issue, of course, only goes to credit.
122 Hayirli gave evidence that he was worried with respect to obtaining further assignments from the defendants.
123 With respect to the first Barkly Square meeting in April 2007, just after the execution of the third written assignment, Hayirli stated:
“Always I was worrying about the life of the cars. In this discussion as well I said, ‘Mr Suleyman, that’s very important for me. I am doing a business. If you get the licences, the middle of the life of the cars, believe me seriously it will give me a big damage. Don’t do it,’ I said. ‘Don’t do this,’ because that was worrying me always.”[40]
[40] T 129, L12-18
124 With respect to the second meeting at Barkly Square in April 2007, he stated:
“I told him again my worry, you know. I said, ‘Mr Suleyman, it is very important for us.’ For every licence, every meeting I was telling him, ‘don’t touch to my car until the end of the life of the car’. … .”[41]
[41] T 131, L3-6
125 Again, in cross-examination of Hayirli, the following exchange took place:
“Q:
You have given evidence that you were continually worried about whether or not he would in fact reassign to you after the life of the vehicle, you recall giving that evidence?---
A:
You know it was worrying me, of course, in one month you know, 1 March 7634, in 27 March, 6249, two months after, 7934, three cars, when you are buying a few cars in a short time you can worry for each of them. You can discuss you know, I did, I was worrying, I was trusting him, still I was worrying, I would like to hear his original word from him.
Q: If you were that worried why didn’t you take …?--- A: Because if he change his mind, if he change his mind and he
says, I was trusting him.”[42](sic) [42] T 189, L13-25
126 If Hayirli believed that there was an agreement to reassign the licences, there would have been no need for him to have such concerns.
127 The 12 December 2005 assignment, the earlier assignment for Licence No 6, was stated by the plaintiff to be subject to the same agreement to re-assign. Were this so, I fail to see why the plaintiff would have paid a premium of $2,500 as Hayirli alleges (and the first defendant denies) if Hayirli thought he was entitled to a re-assignment.
128 Further, the fact that for the fifth and sixth agreement the period offered for the assignment was only two years and not the maximum of three years, and that for the fourth assignment a period of two years only was initially offered, might have been expected to alert Hayirli and concerned him that matters were not perhaps as he had thought. Yet he was prepared to enter into the assignments on this basis.
129 The plaintiff places great reliance upon what was discussed at the 4 February 2010 meeting. However, in my view, looked at overall, the first defendant is really only reiterating that the defendants are not granting further assignments on account of family problems. For example, at one part of the meeting the following exchange occurred:
SY:
“Dogan for God’s sake, I wanted to give you the others as well. I am saying that the family situation has arisen … didn’t I say to you Dogan, my brother -
DH: You did. SY: I would give them all - DH: You said that if I don’t operate them. SY: Yes. DH: I will hand over all my licences.”
130 If Hayirli thought that he was contractually entitled to a reassignment of the licences, he might have been expected to assert this at the 4 February 2010 meeting. Similarly, Unsalan might have been expected to do likewise in his telephone call to the first defendant in March 2010.
131 I further note that the letter of 12 February 2010 from the plaintiff’s solicitors to the first and second defendant does not allege that there were agreements to re-assign the licences, only that there were representations that this would occur.
132 In all the circumstances, I am not satisfied that the version of events contended for by the plaintiff in fact occurred.
133 As indicated, it is on the above four grounds that I have concluded that there was no agreement between the plaintiff and the defendants to grant further assignments of each of the six licences as alleged by the plaintiff.
134 Further, the uncertainty to which I have referred which makes it impossible to formulate the terms of any purported further assignment, together with my not being satisfied that the version of events contended for by the plaintiff in fact occurred, means that there is no definite factual basis for concluding that there was false and misleading conduct on the part of the defendants.
135 Finally, my not being satisfied of the version of events contended for by the plaintiff means that there is no basis upon which an estoppel could arise.
136 There will be judgment for the defendants.
137 I will hear from the parties on the question of costs.
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