| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : HAN -v- MANIA [2014] WADC 72 CORAM : MCCANN DCJ HEARD : 17 MARCH 2014 & SUBSEQUENT WRITTEN SUBMISSIONS DELIVERED : 23 MAY 2014 FILE NO/S : APP 81 of 2013 BETWEEN : IAN HAN Appellant
AND
STANISLAW HENDRICK MANIA
First Named Respondent
TERRANCE PETER SNELL
Second Named Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE BROMFIELD File No : PE 10301 of 2010 Catchwords: Appeal from judgment of magistrate - Contractual dispute - Adequacy of reasons for decision - Allegation of apparent bias - Unfounded - Turns on own facts Legislation: Magistrates Court Act 2004 s 31
Workers' Compensation and Injury Management Act 1981 s 213(4) Result: Appeal dismissed
Representation: Counsel:
Appellant : Mr B L Nugawela
First Named Respondent : Mr H Sklarz
Second Named Respondent : Mr H Sklarz
Solicitors:
Appellant : Tan & Tan
First Named Respondent : Sklarz Lawyers
Second Named Respondent : Sklarz Lawyers
Case(s) referred to in judgment(s):
Bank of New Zealand v Simpson [1900] AC 182
Fox v Percy (2003) 214 CLR 118
Gray v Brimbank City Council [2014] VSC 13
Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144
Manonai v Burns [2011] WASCA 165
Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149
Pacific Carriers Ltd v BNP Paribas [2004] HCA 35, 218 CLR 451
SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165
Velez Pty Ltd v Tudor [2011] WASCA 218
Introduction 1 This is an appeal from a decision of a magistrate given in the Magistrates Court of Western Australia (Civil Jurisdiction) on 13 September 2013 whereby judgment was given in favour of the first respondent (Mr Mania) against the appellant (Mr Han) for the sum of $50,000, together with interest at the rate of 6% from 6 June 2010 until judgment. The learned magistrate dismissed Mr Han's third party claim against the second respondent (Mr Snell) and ordered him to pay all costs. 2 The facts are as follows. 3 On 15 May 2009, Asoutek Pty Ltd (Asoutek) was incorporated with two shareholders for the purpose of carrying on business selling commercial kitchen equipment. The shareholders were Han's Café Pty Ltd and Practical Products Pty Ltd. Mr Han was a director of Han's Café Pty Ltd and became a director of Asoutek. 4 Han's Café Pty Ltd and Han's Investments Pty Ltd (another company controlled by Mr Han) furnished Asoutek with samples of imported kitchen equipment to the value of $109,346. The equipment was kept at the premises of Practical Products Pty Ltd in Wangara. 5 Mr Snell became the third shareholder and a director of Asoutek on 10 August 2009. 6 In or about September 2009 Mr Mania acquired Practical Products Pty Ltd's share in Asoutek, but he did not become a director. He also entered into an agreement with Messrs Han and Snell whereby they all agreed to contribute capital to Asoutek to the value of $100,000 each. Messrs Mania and Snell believed that Mr Han's capital contribution consisted of the equipment that had already been supplied to Asoutek by his companies. Mr Han unsuccessfully disputed this at the trial (see [72] of the learned magistrate's reasons cited below at [40]). 7 The equipment samples were moved to Mr Mania's premises in Wangara and all three parties began funding the business, or working on the Asoutek venture, in various ways. Mr Mania contributed over $60,000, excluding transport costs and the value of his own time and that of his staff. 8 Thus, on the view of Messrs Mania and Snell a position was reached whereby Asoutek owned equipment to the value of $109,346 and each of Messrs Han, Snell and Mania became a creditor of the company. Mr Han's loan account stood at more than $100,000 and Mr Mania's was at least $60,000. 9 However, Mr Han began to fall out with Messrs Mania and Snell, particularly the former, because of disputes about marketing and the direction of business opportunities. Mr Mania also became concerned about the solvency of Asoutek, although it seems that its only creditors were the shareholders. Numerous meetings were held by the parties, but Mr Han was not always present. 10 The rift intensified when Mr Han arranged for some of the kitchen equipment to be sold, but retained the sale proceeds himself instead of paying them into Asoutek's bank account. Mr Mania was incensed and wrote to Mr Han on 27 April 2010 with Mr Snell's approval. 11 The matter came to a head at a pre-arranged meeting at Mr Mania's premises on 6 May 2010. By then Mr Mania wanted out of the Asoutek venture and he planned to use the meeting to get Mr Han to buy him out. He prepared a draft agreement for that purpose (exhibit F; AB 127) in the terms set out at [14] below, save for the passages which I have emphasized and for blank spaces which were left for the consideration to be inserted. 12 The meeting was acrimonious at times. Mr Mania accused Mr Han of stealing the proceeds of the equipment sales from Asoutek and threatened to call in the authorities. 13 Mr Han denied any wrong-doing with equal vigour. As far as he was concerned, the equipment always belonged to his own companies and he was holding the sale proceeds (after deducting his companies' costs) in trust for Asoutek pending the full payment of Messrs Mania and Han's shares of the start-up capital (AB 707 - 708, 729). 14 There was discussion about whether Mr Mania could be bought out. Eventually he agreed to sell his share in Asoutek for $60,000. The three parties entered into a written agreement (the agreement: exhibit 6.2; AB 129) in the following terms (all emphasis added): 6-05-10 SALES OF ONE THIRD (1/3) SHARE BY STANISLAW HENDRICK MANIA TO IAN HAN AND TERRY SNELL I, Stainslaw Hendrick Mania, agree to sell my units in Asoutek Pty Ltd, making up one third (1/3) of the company, to Ian Han for the sum of $60,000 of which $50,000 paid in 30 days from 6/05/2010, due 6/06/2010, with the balance of $10,000 due in 12 months. All stock (printed matter, website, exclusive rights etc) are relinquished by me. I will not have any involvement in Asoutek, or any similar activity, for a period of 10 years. Ian Han and Terry Snell take over all past and future commitments of the company, including A.T.O. and share transfers. This transaction and all information is private and confidential. I will forward my resignation as Director of Asoutek to both Ian and A.S.I.C. 15 There was an ambiguity on the face of the agreement in that the heading stated that Mr Mania was selling his share to Messrs Han and Snell whereas the following paragraph said that he was only selling his share to Mr Han. This ambiguity was introduced by the addition of the emphasized words to the final draft. 16 The first instalment ($50,000) was not paid on the due date (6 June 2010). On 8, 9 and 10 June 2010 Mr Mania corresponded with Messrs Han and Snell about this. Whilst the first email (AB 315) was not free of ambiguity itself, Mr Mania made it clear that he regarded Mr Han to be liable to pay the money ('Ian, we shook hands on this…'). Mr Han replied that he and Mr Snell had jointly agreed to purchase Mr Mania's share and that the sale could not proceed as Mr Snell had reneged. He therefore refused to pay anything.
The proceedings in the Magistrates Court 17 On 6 July 2010 Mr Mania commenced proceedings against Mr Han in the Magistrates Court claiming the sum of $50,000. Mr Han denied liability and pleaded that there was a condition precedent to the agreement, namely that he and Mr Snell would both take over Asoutek, and that the condition had not been fulfilled because Mr Snell had refused to have anything further to do with the running of the company. 18 Mr Han commenced third party proceedings claiming an indemnity from Mr Snell for any liability to Mr Mania on the basis that, pursuant to the agreement, Mr Snell had agreed to jointly purchase Mr Mania's share with him and that Mr Snell had placed him in breach. 19 Mr Snell defended the third party proceedings on the ground that Mr Mania's construction of the agreement was correct. This became the ultimate issue in both the claim and the third party proceedings. (See the statement of issues dated 30 March 2011; AB 36 – 37). 20 The trial took place on 31 October, 1 and 2 November 2011 and 23 and 24 February 2012. Much of the evidence concerned the factual matrix of the agreement and other extraneous matters, including the oral negotiations which took place during the meeting on 6 May 2010. That evidence was admitted as an aid to resolving the apparent ambiguity in the agreement. The parties provided the learned magistrate with detailed closing submissions, including (in Mr Han's case) lengthy written submissions. 21 As to the factual matrix, amongst other matters the learned magistrate was invited by Messrs Mania and Snell to make a finding that Mr Han believed that it was in his interests on 6 May 2010 to purchase Mr Mania's share, and so obtain control of Asoutek, in order to stave off the possibility of Mr Mania going to the authorities. That is, he was looking for an 'exit strategy'. 22 In his closing submissions on behalf of Mr Han, Mr Nugawela contended that: (i) Mr Han had accounted for the proceeds of the equipment sales because he had kept Mr Mania fully informed, as evidenced by some company accounts which Mr Mania prepared (eg, exhibit H2; AB 152). (ii) Mr Han knew that he had done nothing wrong (as he testified) and was therefore completely unconcerned by Mr Mania's threats to go to the authorities and gave them no credence. (iii) Mr Mania's real reasons for wanting to retire from the venture related to other matters, namely his concerns as to the solvency and viability of Asoutek and his frustration that Mr Han had employed one Maggie Ma in a marketing role for Asoutek. Mr Nugawela submitted that Mr Mania's concerns about those matters arose early in the venture and before the issue of the equipment sales arose. As such, he was the party with the 'exit strategy', as evidenced by fact that he already had a draft of the agreement ready before the meeting on 6 May 2010 (exhibit F). (iv) Mr Mania's allegations that Mr Han was in the wrong were a 'contrivance' (AB 43) which he invented so that he could pressure Mr Han during the negotiations. (v) Mr Mania had even conceded in evidence that it was agreed on 6 May 2010 that Messrs Han and Snell would jointly purchase his share. 23 The last submission went as follows. 24 Mr Mania was directed in cross-examination (AB 625) to pars 28d and 28e of Mr Han's statement of intended evidence in which Mr Han stated that during the meeting on 6 May: 25 Mr Mania was then asked a question (which was actually two questions). (Firstly) whether par 28e of Mr Han's statement was correct because (secondly): you then caused your girl, I think, or your secretary to insert Terry as being part of the obligation to continue with the business, together with Ian Han? Is it possible that that's why you made that change [inserting Mr Snell's name in the heading] to the draft agreement? 26 Mr Mania answered: I would say putting it that way, it must have been because he would have said 'I want Terry to be with me'.
The learned magistrate's reasons for the decision 27 The learned magistrate gave his decision with written reasons on 13 September 2013. His Honour rejected Mr Han's contention that he and Mr Snell agreed to jointly purchase Mr Mania's share and also held that the agreement was unconditional. He therefore upheld Mr Mania's claim and dismissed Mr Han's third party claim. 28 His Honour commenced his reasons with a summary of the issues and the undisputed history of the parties' business association. He then summarised the evidence about the meeting on 6 May 2010, the drafting and signing of the agreement and the exchange of emails between 8 and 10 June 2010. 29 His Honour noted the 'very obvious ambiguity' on the face of the agreement and directed himself that extrinsic evidence was admissible to resolve it. He also held that, in any event, evidence of the factual matrix was admissible as an aid to construction. He referred to Bank of New Zealand v Simpson [1900] AC 182; SMEC Australia Pty Ltd v Valentine Falls Estate Pty Ltd [2011] WASCA 138; Lion Nathan Australia Pty Ltd v Coopers Brewery Ltd [2006] FCAFC 144; Pacific Carriers Ltd v BNP Paribas [2004] HCA 35, 218 CLR 451; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165. 30 None of that reasoning is challenged on appeal. 31 His Honour then summarised ([58]) the issue to be determined, that is, whether: There was a condition precedent to the contract, namely that, the defendant and Mr Snell both would take over Asoutek and its business together and that the defendant agreed to purchase the claimant's one share jointly with Mr Snell for $60,000 of which $50,000 was payable on or about 6 June 2010. 32 The learned magistrate then dealt with the burden of proof in orthodox terms which were challenged on appeal, but not strongly. 33 His Honour then assessed the evidence and made findings of fact in 13 paragraphs. Important amongst them were findings that Mr Mania 'presented as a very credible witness', as did Mr Snell ('a similar favourable impression')([65]). 34 At [66] his Honour commented on Mr Mania's more businesslike approach compared to Mr Han, but expressed 'surprise' that Mr Mania believed he was a director of Asoutek when he was not. His Honour said ([67], emphasis added): I have no doubt that during that meeting there was discussion about Mr Snell purchasing one share held by Mr Mania. Mr Mania confirmed this in his evidence. Thus, his Honour addressed evidence and made observations which supported Mr Han's case. 35 He then proceeded to make a number of other findings. 36 Firstly [68], his Honour found that Mr Snell did not have the means to purchase Mr Mania's share, either jointly or otherwise. 37 His Honour then said ([69 - 70]; the intercalations are mine): In any event, Mr Snell gave evidence that he made it clear that he did not want to purchase Mr Mania's one share at the meeting on 6 May 2010. He did give an explanation that he was responsible for the inclusion of the penultimate sentence in the agreement that the transaction and all information is private and confidential. Mr Snell signed the document. This to my mind is explained by virtue of [ii] the confidentiality clause and [iii] the fact that both he and Mr Han were agreeing to take over all past and future commitments of the company, including ATO and share transfers. [iv] There is no suggestion at the meeting on 6 May 2010 that Mr Snell would not continue as a director of Asoutek. Nor is there any credible evidence that he was not prepared to continue in that position. In fact Mr Snell indicated in his evidence, which I accept as true, that to his knowledge he is still a director. 38 So, to this point, the learned magistrate made four findings about the factual matrix (including the undisputed purpose of some of the terms of the agreement) which supported both the credibility of the evidence of Messrs Mania and Snell and their construction of the agreement, namely that Mr Snell was not interested in purchasing Mr Mania's share in any capacity and lacked the means to do so, but there were sound reasons why it was perceived to be necessary for him to be a party to the agreement. None of that reasoning is challenged or said to be lacking in adequacy. 39 The learned Magistrate then addressed ([71]) the post-contractual exchange of emails and concluded that this supported his findings. Neither the admissibility or force of that reasoning is challenged in the appeal. 40 The learned magistrate returned to the pre-contractual, factual matrix and made further findings as follows (emphasis and intercalations added): [72] It must also be kept in mind that [v] as at 6 May 2010, Mr Mania had the various items of machinery stored at his business premises and [vi] the mutual trust which had existed between Mr Mania and Mr Han had clearly evaporated. By purchasing the one share in Asoutek held by Mr Mania, this not only [vii] resolved the prospect of Mr Mania making a complaint to ASIC or the police, it [viii] would also enable the company to reclaim possession of the equipment which had originally been purchased by Mr Han (or his companies) and [ix] represented a majority of his contribution to the business venture operated by Asoutek. That equipment was in fact released by Mr Mania to the company. [73] For these reasons I find that it is more probable than not that the agreement was intended to record the sale of the one share held by Mr Mania to Mr Han. [74] The evidence does not show that there was a condition precedent that Mr Snell agreed to take over Asoutek and its business together with Mr Han and that he would, jointly with Mr Han purchase the claimant's one share of the company. [75] Not only did Mr Snell deny that this was the case but [x] it would appear most illogical for him to have done so in May 2010. He, like Mr Mania, had reason to feel ill at ease with Mr Han's conduct with the sale of the machinery … It is not credible that he would have been prepared to invest more money in the venture in view of his obvious concerns regarding Mr Han's conduct. [76] Given Mr Snell's financial position [see [36] above], [xi] the considerable expense and time that he [i.e., Mr Han] had put into Asoutek's activities, Mr Mania's evidence that Mr Snell said, in Mr Han's presence, upon Mr Mania's return to the room where the meeting was conducted, that Mr Han would purchase his share, and [xii] the terms of the agreement itself, I find that the defendant has not discharged the legal burden to establish by preponderance of the evidence that there was either a condition precedent to the contract or a collateral contract. 41 In [68] - [70] and [72] - [76] the learned magistrate made 11 findings or points about the pre-contractual factual matrix and the evidence regarding the pre-contractual negotiations which explained and supported his decision, including his findings in relation to the credibility of the witnesses. He also remembered ([xii]) that the ultimate task was to construe the written agreement and in particular to resolve the apparent ambiguity about the identity of the purchaser(s).
The appeal 42 Originally there were four grounds of appeal. However, the first was abandoned. The second relates to the burden of proof and was not strongly pressed. It is not necessary to deal with it any further since in my respectful opinion the learned magistrate's ruling was correct. (A variant of the ruling is contained in his reasons as [76].) 43 The remaining two grounds contend that his Honour erred 'in failing to give adequate reasons for decision after more than one and a half years since the trial hearing occurred in February 2012' and 'demonstrated a reasonable apprehension of bias in favour of one or more defendants'. 44 These grounds are inter-related and turn on the same basic contentions, namely that the reasons for decision were inadequate and, as such, there has been a miscarriage of justice or, alternatively, an inference can be drawn that the learned magistrate ignored relevant evidence, and Mr Nugawela's submissions, and thus did not bring an open mind to the fact-finding process. I shall deal with both grounds together. 45 The questions for me to determine are whether the learned magistrate adequately explained his findings so that, in effect, one can be satisfied that all relevant evidence and submissions were considered on their merits with an open mind, or an apparently open mind, and that there was no miscarriage of justice. 46 Section 31(1) of the Magistrates Court Act 2004 provides as follows: (1) The Court's reasons for a judgment in a case – (a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; (b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; (c) need not canvass all the evidence given in the case; and (d) need not canvass all the factual and legal arguments or issues arising in the case. 47 This provision was considered in Manonai v Burns [2011] WASCA 165 and (obiter) in Velez Pty Ltd v Tudor [2011] WASCA 218 which related to the same provision (s 213(4)) of the Workers' Compensation and Injury Act1981. In Manonai Hall J said ([56], Pullin and Murphy JJA agreeing): The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important. 48 Based on the principles enunciated in Manonai and Tudor, and the numerous other authorities referred to therein, the relevant principles are as follows (citations omitted). (i) In identifying the facts accepted and the reasons for doing so (s 31(1)(a)) and the law applied and the reasons for doing so (s 31(1)(b)) the magistrate is obliged to expose the reasoning process linking them and justifying the ultimate result. (ii) The function of reasons is to give effect to any right of appeal, to enable an appeal court to determine whether or not an appealable error is made, and to allow the parties to understand why they were or were not successful. (iii) Whether the content of the reasons is adequate will depend on the circumstances of the case. An appellate court will look at the reasons as a whole to determine whether they give a sense of what was intended in a way that achieves their required function and purpose. (iv) Where there is conflicting evidence on a matter of significance, the magistrate should set out his or her findings as to why one set of evidence is preferred to another. However, it is unnecessary to make explicit findings on each disputed piece of evidence, especially if the inference as to what was found is appropriately clear. What is important is that it emerges that the magistrate had all of the relevant evidence in mind. (v) An error in the reasons does not necessarily lead to a conclusion that the reasons are deficient in the material sense. It is well recognised that even where reasons are found to be inadequate it does not follow that there is necessarily an appealable error. An appeal court will only interfere where the inadequacy of the reasons is such as to give rise to a miscarriage of justice. 49 Mr Nugawela submitted that the reasons were too brief and that, taken with the delay between the conclusion of the trial and the giving of the decision (approximately 18 months), one could not be satisfied that the learned magistrate had properly addressed the evidence or his submissions. 50 He submitted that this proposition was apparent from the circumstance that the learned magistrate did not address important evidence that was referred to in those submissions. 51 Mr Nugawela also contended that the learned magistrate's assessment of the credibility of the witnesses overlooked, ignored or failed to resolve evidentiary issues or deal with his detailed closing submissions about that. He submitted that the learned magistrate's findings from [72] onwards were no more than unexplained conclusions - a series of ipse dixits. 52 To illustrate these submissions, Mr Nugawela submitted that the learned magistrate's reasons failed to disclose how he resolved, or disposed of, Mr Mania's supposed concession that it was orally agreed during the meeting on 6 May 2010 that Messrs Han and Snell would jointly purchase his share. I accept that when viewed in isolation Mr Mania's evidence ([24] – [26] above) could be construed as making that concession. 53 However, it is necessary to place the evidence (i.e. answer) in its full evidentiary context. Mr Mania was questioned immediately afterwards about pars 28f and 28g of Mr Han's statement in which Mr Han said: f. Stan said words to me to the effect that: i. he had spent about $60,000 from his own pocket towards Asoutek; and ii. in that case he would sell his share in Asoutek to Terry and I for $60,000, with $50,000 to be paid in 30 days, and the balance of $10,000 to be paid in 12 months; and g. Terry and I said 'OK'. 54 Mr Mania testified (AB 625; emphasis added): I did not say to him and Terry. … Because Terry had already put himself out – said 'I haven't got the money'. … And on numerous occasions Terry had already said 'I haven't got the money. I'm cash strapped at the moment'. …. There was no point in me saying I'm taking – saying Terry and him. 55 It is clear from reading all of Mr Mania's evidence that in answering the direct question about par 28e of Mr Han's statement he only addressed (and agreed with) the second part of the question as to how he caused Mr Snell's name came to be inserted in the agreement. Overall, he rejected par 28e of Mr Han's statement. 56 Therefore, the evidence as a whole did not support the submission which was put on behalf of Mr Han and there was no necessity for the learned magistrate to expressly deal with it in his reasons for decision. As it happens, he made it clear that he accepted the evidence of Mr Mania and Mr Snell to the effect that the latter made it clear during the meeting that he could not afford to be involved in the purchase of Mr Mania's share. In other words, he accepted Mr Mania's evidence cited above at [54]. 57 I return now to Mr Nugawela's submissions about the reasons for decision. 58 I accept that the delay between the conclusion of the trial and the giving of the decision had the potential to impact upon the efficacy of the decision-making process, and that the advantages which the learned magistrate enjoyed as to the assessment of credibility might have been diluted or even lost. 59 Mr Nugawela submitted that the learned magistrate should have explained the delay and whether it had impacted on the decision-making process. I also accept that submission. It would have been preferable if his Honour had done so. 60 Accordingly, I accept that the adequacy of the reasons warrants particular scrutiny in this case. (See Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149 [30]). 61 I also accept that the learned magistrate's reasons in respect of credibility did not canvass Mr Nugawela's submissions at length. But I do not accept that the reasons as a whole were too brief. 62 As Mr Sklarz submitted, the issues in the trial were relatively straight-forward, a point which was belied by the large amount of evidence about the relatively undisputed circumstances prior to the meeting on 6 May 2010. The fundamental and straightforward evidentiary dispute was, in short, 'who said what?' during the meeting. The balance of the evidence (about the broader factual matrix) was not necessarily critical to the resolution of that issue. 63 Moreover, in making his findings about credibility his Honour primarily (but not exclusively) relied upon proven, objective facts or points rather than ephemeral matters which could lose their impact with the passage of time (such as the demeanour of the witnesses). In my opinion that approach accorded with modern fact-finding principles which favour recourse to contemporary materials, the apparent logic of events and the consistency of evidence. (See Fox v Percy (2003) 214 CLR 118 [30] – [31] (Gleeson CJ, Gummow and Kirby JJ)). To illustrate, the learned magistrate accepted Mr Snell's version of the meeting partly because he found (at [75]; point [x]) that, given Mr Snell's concerns, it was 'most illogical' and 'not credible' that he would agree to invest more money in Asoutek. 64 The learned Magistrate also had thorough written submissions to mitigate any difficulties arising from the delay. 65 Therefore, in my opinion it was not necessary for his Honour to refer to all of the evidence and submissions in relation to the parties' credibility. There was in fact quite a straight-forward situation as at 6 May 2010 which consisted of the 11 findings and points which I have enumerated. These amply explain and support the findings in relation to credibility as well as his Honour's favourable impression of Messrs Mania and Snell's presentation in evidence. 66 Mr Nugawela addressed me at length about the learned magistrate's reasons for his finding (point [vii]) that it was in Mr Han's interests to buy Mr Mania's share in order to stave off the prospect of Mr Mania going to the authorities (the 'exit strategy' issue). His Honour referred ([65]) to Mr Han's 'rather unconventional' business methods and also found ([75]) that Messrs Snell and Mania 'had reason to feel ill at ease with Mr Han's conduct' of the equipment sales. There were allusions to similar effect at [19], [29] and [66] of the reasons. His Honour also made an implicit finding ([ix]) that all of the equipment and thus all of the proceeds of the equipment sales belonged to Asoutek. Even Mr Han accepted that the profits (at least) belonged in trust to Asoutek. Therefore I accept (as Mr Nugawela submitted) that it follows that his Honour found that Mr Han's business dealings with Messrs Mania and Snell were unorthodox or unconventional and that their concerns were justified and motivated their actions. 67 But, Mr Han's culpability (if any) was not an indispensable part of the fact-finding and interpretive functions of the court. It must be remembered that the exit-strategy issue related to the parties' subjective states of mind and concerns and not necessarily who was in the right or wrong. Insofar as the learned magistrate found that the Mr Han's motives included (but were not limited to) placating Mr Mania, it was not necessary for him to address whether Mr Han accepted the force of the allegations against him. His Honour stopped short of doing so and, instead, simply found that Mr Mania was understandably serious and vocal about the matter and that Mr Han could see the advantage of placating him. 68 I do not accept that the learned magistrate made any more adverse findings regarding Mr Han than those set out above. The important point is that his Honour exposed his reasons for his findings, namely that Mr Han had not banked the proceeds of the sale of Asoutek's property in the company's account and was being intransigent about doing so. 69 I accept Mr Nugawela's submission that his Honour did not expressly refer to Mr Han's evidence (or submissions) about his indifference to Mr Mania's allegations and threats. But, in my opinion, having regard to s 31 of the Magistrate's Court Act, and the relevant principles generally, it was not essential to expressly deal with every aspect of Mr Han's evidence or submissions about this. It is beyond doubt that the learned magistrate dealt with them and that he considered that Messrs Mania and Snell's concerns or allegations were not a 'contrivance' instigated to put pressure on Mr Han. It does not matter that he did not repeat that particular word from counsel's submissions. 70 In any event, when one considers the learned magistrate's reasons as a whole, it is apparent that the exit strategy issue did not play a decisive part in his overall reasoning. As I have pointed out, his Honour found that numerous aspects of the factual matrix were relevant, of which Mr Han's 'exit strategy' was only one. His Honour expressly found that Mr Han had other reasons for agreeing to Mr Mania's terms, including Mr Snell's inability to financially assist and the fact that Mr Mania physically controlled Asoutek's remaining stock. 71 Every case must be considered on its own facts. In my opinion, it is apparent from the reasons that his Honour addressed all relevant issues and considered all relevant evidence and I am satisfied that the reasons were adequate. I do not accept the submission that the latter part of the reasons constituted a series of ipse dixits. Each finding referred to therein was adequately explained when one has regard to the reasons as a whole. 72 Four authorities were referred to during the appeal in which the opposite outcome was reached, namely Mt Lawley Pty Ltd, Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Gray v Brimbank City Council [2014] VSC 13 and The Quadriplegic Centre Board of Management v McMurtrie [2009] WASCA 173. Those authorities illustrate the principle that the grounds for rejecting (or overlooking) important evidence, or an important issue of law or fact, should be given in reasoned terms. At the very least, it is necessary to refer to important evidence or issues so as to indicate that they were not overlooked (McMurtrie [33] - [34] Pullin JA). I am satisfied that all four cases are distinguishable on their facts. In each case the trier of fact failed to address, or properly address, important and prima facie persuasive evidence which supported a different ultimate finding to that which was actually made. If it be necessary to identify authorities which support the learned magistrate's decision, then I would point to Manonai and Tudor. 73 Moreover, I accept Mr Sklarz's submission that whatever shortcomings might be identified in the reasons, there can be no basis for a finding that there has been a miscarriage of justice. In the final analysis, the learned magistrate was required to construe a document and in particular to resolve an apparent ambiguity. In doing so, he had regard to the factual matrix and a number of extraneous circumstances, as he was entitled to do. Insofar as the construction of the agreement itself is concerned, his Honour explained why Mr Snell came to be a party and was named in the heading, but was not named in the provision relating to the sale of Mr Mania's share, namely, he needed to be privy to the agreement because of the re-structuring of the rights and obligations of the three parties. In my respectful opinion, that factor alone sufficiently supports the learned magistrate's construction of the agreement. 74 The structure of the document itself is supportive. It is divided into two sections, namely a heading in block letters and then a number of paragraphs in a different font. The latter section contains all of the terms of the agreement, that is, it purports to be the operative part of the agreement. In my opinion the heading was not intended to take precedence over the operative part of the agreement. 75 In the light of all of the evidence and the findings made, there can be no cause for concern about the adequacy of the reasons, the correctness of the outcome or as to the learned magistrate's impartiality. 76 The second and third grounds of appeal also fail and the appeal should be dismissed.
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