International Assets Pty Ltd v Rubin
[2025] VSC 454
•25 July 2025
IN THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST
S ECI 2021 03184
INTERNATIONAL ASSETS PTY LTD (ACN 618 511 078) AS TRUSTEE FOR THE STAVROULA FAMILY TRUST and ANOTHER Plaintiffs v RICHARD RUBIN (and others according to the Schedule) Defendants and ANGELO BIVIANO AND OTHERS Third Parties ---
JUDGE:
GARDE J
WHERE HELD:
Melbourne
DATES OF HEARING:
9, 12, 15, 16, 19-23, 26-27 May, 26 June 2025
DATE OF JUDGMENT:
25 July 2025
CASE MAY BE CITED AS:
International Assets Pty Ltd & Anor v Rubin & Ors
MEDIUM NEUTRAL CITATION:
[2025] VSC 454
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MISLEADING AND DECEPTIVE CONDUCT - Whether representations were made to the effect that payments made by the plaintiffs would be wholly or substantially used in product development – Whether representations made that the plaintiff would acquire part ownership of the entities that owned the physical and intellectual property relating to the products under development – Whether the defendants’ conduct was misleading and deceptive – Reliance – Causation – Whether deceit – Australian Consumer Law s 18 – Australian Securities and Investment Commission Act 2001 (Cth) s 12DA.
EVIDENCE – Whether recording of a telephone conversation should be admitted where one party to conversation unaware of recording Surveillance Devices Act 1999 (Vic) ss 6(1), 11(1); Evidence Act 2008 (Vic) s 38.
CONTRIBUTORY NEGLIGENCE – Whether the plaintiffs’ award should be reduced for contributory negligence – Competition and Consumer Act 2010 (Cth) s 137B - Australian Securities and Investment Commission Act 2001(Cth) ss 12GP, 12GR.
ACCESSORIAL LIABILITY – Relevant principles – Whether knowing involvement by accountant in misleading and deceptive conduct.
TRUSTS – Whether payments subject to trust of the character described in Barclays Bank Ltd v Quistclose Investments Ltd [1970] AC 567 – Whether payments subject to a trust of the character described in Black v S Freedman & Co (1910) 12 CLR 105.
KNOWING ASSISTANCE – Whether second limb of the description in Barnes v Addy (1874) LR 9 Ch App 244 applies – Relevant principles.
ILLEGALITY – Failure to disclose bankruptcy – Whether bankrupt managed a corporation – Corporations Act 2001 (Cth) ss 206A, 206B(3).
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APPEARANCES:
Counsel Solicitors For the Plaintiffs Mr J Evans KC with
Mr L FreckeltonMoray + Agnew For the First to Ninth Defendants (and First to Third Plaintiffs by third party notice) Mr R Moore Kalus Kelly Intelex For the Tenth to Twelfth Defendants and defendants by third party notice Mr D Gration Macpherson Kelley TABLE OF CONTENTS
Background......................................................................................................................................... 1
Introduction................................................................................................................................... 1
Parties.............................................................................................................................................. 2
International Assets............................................................................................................. 2
Amosa.................................................................................................................................... 2
The Rubin entities................................................................................................................ 3
Angelo Biviano, Chambers & Partners, and Elldon....................................................... 5
Principal representations............................................................................................................. 6
Pleadings........................................................................................................................................ 7
Admissions..................................................................................................................................... 7
Admissions by Rubin parties............................................................................................. 7
Admissions by Biviano parties........................................................................................ 13
The Evidence..................................................................................................................................... 18
Mr Bertuna................................................................................................................................... 19
Introduction to Mr Rubin................................................................................................. 19
Donvale meeting................................................................................................................ 19
Subsequent discussions.................................................................................................... 21
Sandringham meeting....................................................................................................... 22
Conversation with Mr Biviano........................................................................................ 24
Payments............................................................................................................................ 24
Ms Alebakis.................................................................................................................................. 24
Meeting with Mr Rubin on 29 March 2017.................................................................... 25
Payment of $1.2 million.................................................................................................... 26
Requests for further payments........................................................................................ 26
Sandringham meeting in August 2018........................................................................... 27
Mr Di Gregorio............................................................................................................................ 28
Meeting Mr Rubin and Mr Biviano................................................................................. 29
Donvale meeting................................................................................................................ 29
Subsequent meetings........................................................................................................ 31
Indonesian sales................................................................................................................. 32
Business plan...................................................................................................................... 33
Meeting on 13 March 2019............................................................................................... 33
Meeting on 18 March 2019............................................................................................... 36
Meeting on 19 March 2019............................................................................................... 36
Payment of $400,000.......................................................................................................... 36
Heads of agreement.......................................................................................................... 37
Air Wolf............................................................................................................................... 39
Rollover agreement........................................................................................................... 40
Penkethman email............................................................................................................. 40
Further payment................................................................................................................ 42
Mr Mountford.................................................................................................................... 44
Nicole Buna and Michael Leithhead............................................................................... 45
First meeting......................................................................................................... 45
Second meeting..................................................................................................... 46
Third meeting....................................................................................................... 47
Ms Buna’s payments............................................................................................ 47
Sam Karroum..................................................................................................................... 48
Gerard and Justine............................................................................................................. 49
Natalie Toce........................................................................................................................ 50
Purchase of Paynesville land........................................................................................... 50
Conversation with Mr Penkethman................................................................................ 51
Meeting of 4 March 2021.................................................................................................. 51
Financial statements.......................................................................................................... 52
Cross-examination............................................................................................................. 53
Meeting on 13 March 2019............................................................................................... 54
Meeting on 18 March 2019............................................................................................... 54
Meeting on 19 March 2019............................................................................................... 56
Mr Penkethman’s advice.................................................................................................. 58
Mr Penkethman........................................................................................................................... 63
Penkethman affidavit........................................................................................................ 63
Penkethman witness outline............................................................................................ 65
4 April 2019 – 18 September 2019....................................................................... 65
19 September 2019 – 4 November 2019............................................................. 65
7 November 2019 – 5 December 2019................................................................ 66
13 December 2019 – 22 January 2020................................................................. 66
23 March 2020 – 15 May 2020............................................................................. 66
15 June 2020 – 10 July 2020.................................................................................. 66
28 July 2020 – 30 September 2020....................................................................... 67
4 October 2020 – 15 December 2020................................................................... 67
29 March 2017 – 15 January 2018....................................................................... 67
17 January 2018 – 7 September 2018.................................................................. 68
1 September 2017 – 30 June 2018........................................................................ 68
3 September 2018 – 20 April 2020....................................................................... 68
Oral evidence..................................................................................................................... 69
Meeting in March 2020........................................................................................ 70
Further communications with Mr Rubin and Mr Biviano............................. 71
Advice and communications with Mr Di Gregorio........................................ 74
Mr Love........................................................................................................................................ 75
Mr Dell’Aquila............................................................................................................................. 77
Ms Dell’Aquila............................................................................................................................. 78
Ms Buna........................................................................................................................................ 79
Mr Leithhead............................................................................................................................... 81
Mr Mountford.............................................................................................................................. 82
Mr Karroum................................................................................................................................. 83
Mr Smyth...................................................................................................................................... 84
Mr Campbell................................................................................................................................ 86
Rubin affidavit filed 15 February 2022..................................................................................... 87
Ms Poland..................................................................................................................................... 93
Role at Air Sanz.................................................................................................................. 93
Air Sanz accounts and records........................................................................................ 94
Transfers.............................................................................................................................. 95
Development of the products.......................................................................................... 97
Mr Biviano.......................................................................................................................... 98
Dealings with Ms Alebakis, Mr Bertuna, and Mr Di Gregorio................................... 99
Financial position of Mr Rubin and Ms Poland.......................................................... 100
License agreements......................................................................................................... 101
Presentations to investors............................................................................................... 102
Mr Allan..................................................................................................................................... 102
Mr Kenny.................................................................................................................................... 105
Mr Biviano.................................................................................................................................. 106
Relationship with Mr Rubin and investment and work at Air Sanz....................... 106
Investor meetings............................................................................................................ 110
Air Sanz group structure................................................................................................ 112
Licenses............................................................................................................................. 113
Air Sanz Expenditure...................................................................................................... 113
Relationship with Mr Bertuna, Ms Alebakis and International Assets................... 114
Relationship with Mr Di Gregorio and Amosa........................................................... 115
Legal Authorities............................................................................................................................ 116
Key statutory provisions.......................................................................................................... 116
Relevant principles................................................................................................................... 117
Oral representations........................................................................................................ 120
Non-disclosure and silence............................................................................................ 122
Implied representations.................................................................................................. 123
Opinions............................................................................................................................ 123
Representation as to future matters.............................................................................. 124
Conduct of bodies corporate.......................................................................................... 126
Accessorial liability......................................................................................................... 128
Findings........................................................................................................................................... 129
International Assets – was the product development representation made?.................. 129
Payments totalling $1.2 million: March – August 2017............................................. 129
Subsequent payments: September 2017 – June 2018.................................................. 133
Further subsequent payments: August 2018 – February 2021.................................. 134
Was the conduct of Mr Rubin and Ms Poland in making the product development representation to International Assets misleading and deceptive?.................................................... 135
Reliance............................................................................................................................. 138
Causation.......................................................................................................................... 138
Position of the Air Sanz group companies.................................................................. 139
International Assets – Asset ownership company representation........................... 139
International Assets – Deceit claim........................................................................................ 141
International Assets – Other claims........................................................................................ 144
Amosa – Was the product development representation made?........................................ 144
Was the conduct of Mr Rubin in making the product development representation to Amosa and the investors through Amosa misleading and deceptive?........................................ 149
Reliance............................................................................................................................. 151
Causation.......................................................................................................................... 152
Position of the Rubin entities......................................................................................... 152
Amosa – Asset ownership company representation.................................................. 152
Conclusion........................................................................................................................ 154
Was the conduct of Mr Rubin in making the asset ownership company representation to Mr Di Gregorio and Amosa and the investors through Amosa misleading and deceptive? 155
Conclusion........................................................................................................................ 156
Position of the Air Sanz group companies............................................................................ 157
Amosa – deceit claim................................................................................................................ 157
Amosa claims against Ms Poland........................................................................................... 158
Meeting of April 2018...................................................................................................... 159
Tracing of assets........................................................................................................................ 160
Quistclose trust – relevant principles............................................................................. 161
Quistclose trust – Submissions and findings................................................................ 164
Black v Freedman trust claims................................................................................................... 166
Relevant principles.......................................................................................................... 166
Conclusion........................................................................................................................ 168
Amosa – other claims............................................................................................................... 169
Knowing assistance......................................................................................................... 170
Application of the principles relating to the second limb of Barnes v Addy............ 173
Knowing assistance — Mr Rubin.................................................................................. 176
Knowing assistance — Ms Poland................................................................................ 177
Amosa claims against the Biviano parties............................................................................. 180
Introduction...................................................................................................................... 180
Amosa claim for misleading and deceptive conduct by Mr Biviano....................... 182
Accessorial liability................................................................................................................... 188
Relevant facts................................................................................................................... 188
Biviano parties – accessorial liability findings............................................................ 194
Conclusion........................................................................................................................ 197
Amosa claim against the Biviano parties for knowing assistance under the second limb of Barnes v Addy................................................................................................................................ 197
Liability of Chambers & Partners and Elldon....................................................................... 199
Other Issues..................................................................................................................................... 199
Illegality...................................................................................................................................... 199
Admissibility of a recording made 3 March 2021................................................................ 201
Ruling................................................................................................................................ 204
Contributory negligence.......................................................................................................... 206
Loss submissions....................................................................................................................... 207
Rubin parties submissions............................................................................................. 207
Biviano parties submissions........................................................................................... 208
Apportionment.......................................................................................................................... 208
Third party claim...................................................................................................................... 210
Conclusion....................................................................................................................................... 212
Schedule of Parties........................................................................................................................ 213
Annexure A..................................................................................................................................... 215
Annexure B...................................................................................................................................... 216
Annexure C...................................................................................................................................... 217
HIS HONOUR:
BACKGROUND
Introduction
1 The plaintiffs, International Assets Pty Ltd (ACN 618 511 058) as trustee for the Stavroula Family Trust (‘International Assets’) and Amosa Pty Ltd (ACN 081 510 723) as trustee for the Di Gregorio Trust No 2 (‘Amosa’) claim damages for misleading and deceptive conduct, deceit, unjust enrichment, breach of trust and other relief against Richard Rubin, his partner, Kelly Poland, and various companies controlled by them (‘Rubin parties’) in relation to the payment of amounts totalling almost $7 million. The payments were made to the third defendant Air Sanz Holdings Pty Ltd (ACN 142 136 392) (‘Air Sanz Holdings’) and to the fourth defendant iAM International Pty Ltd (ACN 142 918 072) (‘iAM International’). Air Sanz Holdings and iAM International are members of a group of companies which may be described as the Air Sanz group.
2 Amosa also claims damages for misleading and deceptive conduct, breach of s 18 of the Competition and Consumer Act 2010 (Cth) sch 2 (‘ACL’) and s 12DA of the Australian Securities and Investment Commission Act 2001 (‘ASIC Act’) and other relief against: Angelo Biviano, a chartered accountant; his firm, Chambers & Partners (ABN 409 6102 6929) and Elldon Pty Ltd (ACN 068 938 483) as trustee of the Panda Family Trust (‘Elldon’), a company controlled by Mr Biviano (‘Biviano parties’). The Biviano parties rely on s 137B of the Competition and Consumer Act2010 (Cth) and say that the loss and damage was wholly or partly a result of Amosa’s failure to take reasonable care.
3 The Rubin parties also bring a third party claim against Mr Biviano and Chambers & Partners for breach of professional duties namely to use reasonable skill, care and diligence, maintain confidentiality and avoid a conflict of interest. They allege that their retainer of Mr Biviano and Chambers & Partners for accounting work included a term whereby Mr Biviano and Chambers & Partners were required to inform Mr Rubin and Ms Poland, and potential purchasers of shares in companies in the Air Sanz group, of any incorrect statements made by Mr Rubin or Ms Poland prior to the purchase of the shares. The Rubin parties seek damages or compensation from Mr Biviano and Chambers & Partners and indemnification or contribution from the claims brought by International Assets and Amosa. Air Sanz Holdings also claims for the failure of Elldon to pay the balance said to be owing for the purchase of shares in iAM International in the amount of $USD1.2 million. For their part, the Biviano parties deny these allegations and say that they have made payments to the Rubin parties in the amount of $AUD929,127.16.
4 The payments made by International Assets to Air Sanz Holdings and to iAM International are listed in Annexure A. The payments made by Amosa to Air Sanz Holdings are listed in Annexure B. There is no dispute that the payments listed in Annexures A and B were made.
Parties
International Assets
5 International Assets was incorporated on 11 April 2017 as the corporate vehicle to enable Stavroula Alebakis and her partner, Angelo Bertuna, to invest in the Air Sanz group. International Assets’ sole director and shareholder has been Ms Alebakis since its incorporation. Mr Bertuna had authority to act as agent of International Assets in its dealings with Mr Rubin and the Air Sanz group. Ms Alebakis and Mr Bertuna are not sophisticated investors, and have little (if any) education or training in investment or financial matters.
Amosa
6 Amosa is the corporate vehicle through which Mario Di Gregorio and others invested in the Air Sanz group. Antoinetta Di Gregorio (the wife of Mr Di Gregorio) has been the sole director of Amosa at all material times. Mr Di Gregorio had express and implied authority to act as the agent of Amosa in respect of its dealings with Mr Rubin and the Air Sanz group. Mr and Ms Di Gregorio and the investors through Amosa are likewise not sophisticated investors. They also have little (if any) education or training in investment or financial matters.
The Rubin entities
7 Mr Rubin is a director, and the controlling mind and directing will of each of the third to ninth defendants. They are:
(a)the third defendant, Air Sanz Holdings, which is the trustee of the Air Sanz Holdings Trust;
(b)the fourth defendant, iAM International;
(c)the fifth defendant, SCJBT Pty Ltd (‘SCJBT’), which is the current trustee of the R H Rubin Children’s Trust;
(d)the sixth defendant, PPMS (Vic) (‘PPMS (Vic)’), which is the trustee of the PPMS Trust;
(e)the seventh defendant, Panache Group Pty Ltd (‘Panache Group’), which is the trustee of the IT Ventures Trust;
(f)the eighth defendant, iAM Ventures Pty Ltd (‘iAM Ventures’); and
(g)the ninth defendant, ASH Global Pty Ltd (‘ASH Global’), which, for the period 6 June 2019 to 18 November 2019, was named ‘Air Sanz Holdings Pty Ltd’ and appears to have been interposed as the trustee of the Air Sanz Holdings Trust during that period.
8 Mr Rubin is also a director of Air Sanz Trading Pty Ltd and iAM Solutions Pty Ltd. He was formerly a director of Panache Property Management Services Pty Ltd (‘Panache PMS’).
9 Ms Poland is a director of Air Sanz Holdings, Panache Group, iAM Ventures, and ASH Global. She was formerly a director of iAM International, Airsanz Trading, and Panache PMS.
10 Air Sanz Holdings, iAM International, ASH Global, Airsanz Trading, and iAM Solutions are members of the Air Sanz group. The business of the Air Sanz group was represented as the development, manufacture and sale of air purifier and hand dryer products. The structure of the Air Sanz group is complex, and was changed by Mr Rubin as he saw fit.
11 SCJBT, PPMS (Vic), Panache Group and iAM Ventures are not members of the Air Sanz group. These companies are unrelated to the other corporate defendants. The plaintiffs joined these parties as defendants to the proceeding on the basis of their receipt of the traceable proceeds of monies paid by the plaintiffs to Air Sanz Holdings and iAM International.
12 PPMS (Vic) is the registered proprietor of the property at 18 Mitcham Road, Donvale (‘Donvale premises’ or ‘Donvale’) from which the business of the Air Sanz group was undertaken. PPMS (Vic) acquired the Donvale premises from Panache PMS on or about 23 August 2019.
13 Panache Group, as the trustee of the IT Ventures Trust, is the registered proprietor of Mr Rubin and Ms Poland’s holiday house at 7 Fort King Place, Paynesville (‘7 Fort King Place’).
14 SCJBT, in its capacity as the trustee of the R H Rubin Children’s Trust, was formerly the registered proprietor of a vacant block of land at 9 Fort King Place, Paynesville (‘9 Fort King Place’) next door to 7 Fort King Place. SCJBT sold this property after the proceeding was issued to raise funds to meet the Rubin parties’ costs of the proceeding and living expenses.
15 iAM Ventures formerly owned numerous vehicles that were used by Mr Rubin, Ms Poland and family members.
16 Mr Rubin and Ms Poland resided at rented premises at 20 Rose Street, Sandringham (‘Sandringham premises’ or ‘Sandringham’). Mr Rubin had three children (Sean, Candice and Joshua) by marriage, and two children (Tayla and Braeden) with Ms Poland.
Angelo Biviano, Chambers & Partners, and Elldon
17 Mr Biviano is a chartered practising accountant and a principal of the accounting firm, Chambers & Partners.
18 In or around October 2014, Mr Biviano, in his capacity as a principal of Chambers & Partners, commenced providing accounting services to Mr Rubin and his associated entities and trusts, including the third to ninth defendants.
19 Mr Biviano is a director and shareholder of Elldon. Elldon is the trustee of a trust known as the Panda Family Trust.
20 Elldon acquired 10 shares in iAM International on 11 January 2016 and Mr Biviano was appointed as a director of iAM International on that date.
21 In May 2019, Elldon became a shareholder in Airsanz Trading and transferred its shares in iAM International to Air Sanz Holdings. At the same time, Mr Biviano became a director of Airsanz Trading, with Mr Rubin.
22 Mr Biviano ceased to be a director of Airsanz Trading on 12 October 2021 and iAM International on 13 October 2021, after the commencement of the proceeding.
23 Mr Biviano was also a director of all of the companies in the Air Sanz group from time to time, with the exception of Air Sanz Holdings. He was a director of ASH Global from 21 April 2020 until 12 October 2021, and iAM Solutions from 6 October 2017 until 16 December 2021.
Principal representations
24 The plaintiffs allege that they were induced to make the payments that they did by express and implied representations conveyed by Mr Rubin, Ms Poland and Mr Biviano on their own behalf and on behalf of their entities. The representations are said to be to the effect that:
(a) the payments made by the plaintiffs would be wholly or substantially used in the development of the Air Sanz air management system, and other products within the Air Sanz group (‘the product development representation’); and
(b) the plaintiffs would acquire an interest in, and part ownership of, the entities in the Air Sanz group that owned the physical or intellectual property relating to the development and commercialisation of the Air Sanz air management system (‘the asset ownership company representation’).
(collectively ‘the representations’).
25 The plaintiffs allege that contrary to the product development representation, the vast majority of the payments made by or on behalf of International Assets and Amosa were not applied by Air Sanz Holdings or iAM International towards the development of products in connection with the Air Sanz group. Instead, the funds were diverted to accounts in the name of entities and trusts associated with Mr Rubin and Ms Poland outside the Air Sanz group, and expended by those entities for the personal benefit of Mr Rubin and Ms Poland including for the purchase or improvement of holiday houses, luxury cars, boats and watercraft. A chronology of the acquisition of luxury assets by the Rubin parties is set out in Annexure C.
26 The plaintiffs also allege that contrary to the asset ownership company representation they did not receive any interest in the entities that owned the Air Sanz group and held its property and intellectual property.
27 The plaintiffs seek to set aside the transactions entered into by them, recover the payments or their traceable proceeds and obtain compensation for the loss that they claim.
Pleadings
28 The plaintiffs rely on a Further Amended Statement of Claim filed 27 May 2025 (‘statement of claim’). The Rubin parties rely on a Further Amended Defence filed 4 March 2024 (‘defence’) and on an Amended Third Party Notice filed 18 June 2025 (‘third party claim’). The Biviano parties rely on an Amended Defence filed 27 May 2025 (‘Biviano defence’), and a Defence to the Third Party Claim filed 14 March 2023 (‘third party claim defence’).
29 There was no dispute that what was said or done by the parties was said or done in trade and commerce.
Admissions
Admissions by Rubin parties
30 In the defence, the Rubin parties make various admissions as to matters of fact. The admissions as to directorships, agency, and registered offices include:
(a) Mr Bertuna purported to act as agent of International Assets (defence [2(a)]);[1]
[1]In their further amended defence filed 4 March 2024, the Rubin parties admitted that Mr Bertuna acted as an agent of International Assets.
(b) Mr Bertuna is the spouse of Ms Alebakis, the sole appointed director of International Assets (defence [2(b)]);
(c) Ms Alebakis is and has been at all material times an agent of International Assets (defence [3(a)]);
(d) Mr Di Gregorio is, and was at all material times an agent of Amosa, and the spouse of Antonietta Di Gregorio, the sole appointed director of Amosa (defence [5]);
(e) Mr Rubin is a director of Air Sanz Holdings, iAM International, SCJBT, PPMS Vic, Panache Group, iAM Ventures and ASH Global and former director of Panache PMS (defence [6(2)]);
(f) Ms Poland is the spouse of Mr Rubin, and is a director of Air Sanz Holdings, Panache Group, iAM Ventures and ASH Global, the secretary of Air Sanz Holdings, and a former director of iAM Ventures, Air Sanz Trading and Panache PMS (defence [7]);
(g) Mr Biviano is a chartered practising accountant, a partner of Chambers & Partners, and a director of: Elldon, iAM International from 11 January 2016 to 13 October 2021, ASH Global from 21 April 2020 until 12 October 2021, Air Sanz Trading from 6 May 2019 to 12 October 2021 and iAM Solutions from 6 October 2017 to 16 December 2021. He provided accounting and advisory services to Mr Rubin, Ms Poland, Air Sanz Holdings, iAM International, SCJBT, Panache Group, iAM Ventures, Panache PMS, Air Sanz Trading, iAM Solutions and ASH Global in his capacity as a partner at Chambers & Partners (defence [8]);
(h) Elldon was a shareholder in iAM International from about 11 January 2016 to 6 May 2019, and from about 6 May 2019 in Air Sanz Trading (defence [8B]);
(i) Air Sanz Holdings had its registered office at the office of Chambers & Partners from 25 August 2016 until 16 December 2021 (defence [9(c)]);
(j) iAM International had its registered office at the office of Chambers & Partners from 29 April 2016 to 16 December 2021 (defence [10(b)]);
(k) SCJBT had its registered office at the office of Chambers & Partners from 16 July 2019 to 16 December 2021 (defence [11(b)]);
(l) PPMS Vic had its registered office of the office of Chambers & Partners from 5 June 2019 until 16 December 2021 (defence (12(b)]);
(m) Panache Group had its registered office at the office of Chambers & Partners from 25 August 2016 until 16 December 2021 (defence [13(b)]);
(n) iAM Ventures had its registered office at the office of Chambers & Partners from 25 August 2016 to 16 December 2021 (defence [14(b)]);
(o) ASH Global had its registered office at the office of Chambers & Partners from 7 June 2019 to 16 December 2021 (defence [15(c)]);
(p) Panache PMS went into liquidation on 20 December 2019, and over the period from 25 August 2016 to 26 December 2019, had its registered office at the office of Chambers & Partners (defence [16(a)] and [(b)]);
(q) Air Sanz Trading had its registered office at the office of Chambers & Partners from 6 May 2019 to 16 December 2021 (defence [17(b)]); and
(r) iAM Solutions had its registered office at the office of Chambers & Partners from 16 October 2017 to 16 December 2021 (defence [18(b)]).
31 As to Mr Rubin’s conversation with Mr Bertuna in and around March 2017, the Rubin parties admitted that Mr Rubin said words to the effect that:
(a) Mr Rubin was developing an improvement of earlier hand dryers to incorporate an antibacterial spray (defence [22(b)]);
(b) he needed funding to complete the said improvement (defence 22[(c)]);
(c) there was money to be made in supplying the products and the ongoing maintenance and servicing of the units (defence [22(f)(i)]); and
(d) he (Mr Rubin) had invested $20 million into the development of the products (defence 22(i)).
32 As to Mr Rubin’s and Ms Poland’s conversations with Mr Di Gregorio, the Rubin parties admit that:
(a) in or around March 2019, Mr Rubin said that $2 million was required for maintaining patents, finishing tools and dies, finishing research and development, and for future costs associated with running the business such as hiring and paying staff and also for Mr Rubin’s own living expenses because he was not drawing a salary (defence [36(b)]);
(b) in or around April 2018, Mr Rubin and/or Ms Poland said to Mr Di Gregorio that the V model hand dryer is a full workroom communication system that communicates to the owner when the consumables in the hand dryer need replacing and collects data on usage (defence [36(3)]);
(c) in or around April 2018, Mr Rubin and/or Ms Poland said to Mr Di Gregorio that the V model hand dryer is the only machine in the world that sprays sanitiser whilst drying hands (defence [36(4)]);
(d) Mr Rubin, Mr Biviano and Mr Di Gregorio met multiple times to discuss Mr Rubin’s products (defence [37(a)]);
(e) between October 2018 and on or around March 2019, Mr Rubin and Mr Di Gregorio met approximately 2 or 3 times per week, on many occasions accompanied by Mr Biviano (defence [38(a)]);
(f) during some of these meetings, Mr Rubin took steps to demonstrate to Mr Di Gregorio that the development of the V model hand dryer was progressing (defence [38(b)]);
(g) during some of these meetings, Mr Rubin had telephone calls with various people who Mr Rubin said to Mr Di Gregorio were from potential global customers in which Mr Rubin updated the telephone attendee as to matters relating to the development of the ‘Airsanz’ hand dryers (defence [38(d)]);
(h) Mr Rubin showed Mr Di Gregorio written correspondence between himself, and potential customers of ‘Airsanz’ (defence [38(e)]);
(i) the meetings between October 2018 and on or around March 2019 were at Sandringham and Donvale. Attendees at the meetings, varied from time to time but included Mr Rubin, Mr Di Gregorio and sometimes one or more of Ms Poland, Mr Biviano, Mr Campbell and Ms Smyth (defence [38](f)]);
(j) in or about March or April 2019, Mr Rubin said to Mr Di Gregorio that he (Mr Rubin) expected that it would be possible to commence production of certain (but not all) products in 12 to 18 months (defence [39(a)(ii)]);
(k) in about March or April 2019, Mr Rubin said to Mr Di Gregorio that a potential customer called Vectair had indicated to Mr Rubin that it was interested in buying the V and the SV hand dryers and the V and SV air purifiers for sale in the UK (defence [39(a)(iii)]);
(l) in or about March or April 2019, Mr Rubin told Mr Di Gregorio that he (Mr Rubin) expected that within 18 months iAM International would be producing certain (but not all) products and making sales (defence [39(a)(iv)]);
(m) in or about March or April 2019, Mr Rubin said to Mr Di Gregorio that ‘if you do not believe in me, believe in the product’ (defence [39(a)(v)]);
(n) in or about November to December 2019, Mr Rubin told Mr Di Gregorio that one possibility for the future was the listing on the Australian Stock Exchange of an entity within the Air Sanz group (defence [39(a)(viii)]);
(o) in or about November to December 2019, Mr Rubin told Mr Di Gregorio that if in future an entity within the Air Sanz group was to be listed on the Australian Stock Exchange then iAM International would potentially be rolled up with certain other Air Sanz Holdings subsidiary entities prior to that listing (defence [39(a)(ix)]);
(p) in or about March or April 2019, Mr Di Gregorio said to Mr Rubin, Ms Poland and Mr Biviano words to the effect that Amosa was interested in being the corporate vehicle for such an investment (defence [39(b)(i)]);
(q) in or about March or April 2019, Mr Di Gregorio told Mr Rubin that he would be paying for his investment in iAM International with proceeds from the sale of townhouses that he had developed (defence [39(b)(ii)]);
(r) in or about March or April 2019, but prior to 4 April 2019, Mr Rubin said to Mr Di Gregorio that he could make an investment in iAM Solutions, which had the licence to sell consumables (defence [41(a) and (b)]); and
(s) in the same discussion, Mr Rubin said to Mr Di Gregorio that funds should be transferred to Air Sanz Holdings (defence [41(b)(v)]).
33 As to conversations between Mr Rubin, Mr Di Gregorio and third party investors, the Rubin parties admit that:
(a) in or around December 2019, Mr Rubin met with Mr Mountford, Ms Buna, Mr Leithhead and Mr Karroum (defence [51(a)]); and
(b) at each of these meetings, Mr Rubin said words to the effect that the development of the products was almost complete (defence [52(b)]).
Admissions by Biviano parties
34 In the Biviano defence, the Biviano parties also make various admissions as to matters of fact. The admissions include:
(a) Mr Biviano is and was at all material times a chartered accountant and partner of Chambers & Partners, and a director of Elldon (Biviano defence [8(1)-(2)]);
(b) Mr Biviano was a director of:
(1) iAM International from 11 January 2016 to 13 October 2021;
(2) ASH Global from 21 April 2020 to 12 October 2021;
(3) Airsanz Trading from 6 May 2019 until 12 October 2021; and
(4) iAM Solutions from 6 October 2017 until 16 December 2021 (Biviano defence [8(c)]);
(c)From around October 2014 until late 2021, Mr Biviano and Chambers & Partners provided accounting and taxation services to Mr Rubin and the Rubin parties and their respective trusts (Biviano defence [8(d)]);
(d)Chambers & Partners is and was at all material times carrying on business in trade or commerce as chartered accountants (Biviano defence [8A]);
(e)Elldon from about 11 January 2016 to 6 May 2019 was a shareholder in iAM International, and from about 6 May 2019 to date a shareholder in Airsanz Trading (Biviano defence [8B]);
(f)the companies of the Air Sanz group had their registered offices at the office of Chambers & Partners from various dates between 2016 and 2019 until 16 December 2021 (Biviano defence [9]-[18]);
(g)Mr Biviano met with Mr Rubin and Mr Di Gregorio in or about February and March 2019 (Biviano defence [38(b)]); and
(h)Mr Biviano met with Mr Rubin and Mr Di Gregorio on 18 March 2019, and Mr Biviano took minutes at the meeting and circulated them to Mr Rubin, Ms Poland and Mr Di Gregorio (Biviano defence [39(b)-(c)]).
35 In the third party claim defence, Mr Biviano and Chambers & Partners made the following admissions:
(a) from around October 2014 to around April 2016, Mr Biviano provided ad hoc advice without charge to Mr Rubin (third party claim defence [4(a)]);
(b) from around April 2016, Chambers & Partners provided accounting and taxation services to the Rubin parties and other Rubin companies (third party claim defence [4(b)]);
(c) to the extent that Chambers & Partners were retained, there were terms of the retainer that:
(1)the services to be provided would be provided with care and diligence;
(2)Chambers & Partners would not disclose its clients’ confidential information without consent unless required or permitted by law to do so; and
(3)Chambers & Partners would avoid putting itself in a position where its duties to its clients conflicted with its own interests or where its duties to one client conflicted with its duties to another client, in each case, unless it had the consent of the clients concerned (third party claim defence [5(b)]).
(d)from April 2016, Chambers & Partners and Mr Biviano were aware of Mr Rubin’s personal and financial circumstances to the extent that he disclosed those circumstances to them (third party claim defence [7(b)]);
(e)from April 2016, Chambers & Partners were aware of the corporate structure of the Rubin Group including the Air Sanz Group to the extent that the structure was disclosed to them (third party claim defence [7(c)]);
(f)from April 2016 they were aware of the assets and liabilities held by each of the entities in the Rubin Group to the extent that those matters were disclosed to them (third party claim defence [7(d)]);
(g)Mr Biviano and Chambers & Partners provided calculations concerning the amount of interest payable by Eddy Hartento to Air Sanz Holdings under the terms of the Further Settlement Deed based on instructions received from Leonard Warren, of Russell Kennedy, the Rubin’s Group solicitors (third party claim defence [9]);
(h)Chambers & Partners was requested by Air Sanz Holdings to provide, and did provide, accounting assistance in implementing the compromise with Eddy Hartanto (third party claim defence [11(a)]);
(i)Chambers & Partners was requested by Air Sanz Holdings to provide, and did provide, accounting and advice concerning the sale of shares by Air Sanz Holdings Trust on Eddy Hartanto’s and his nominees’ behalf. In many instances the advice that was provided was preliminary advice that required further instructions or further information to be completed and such further instructions or information were often not provided (third party claim defence [11(b)]);
(j)legal advice in respect of these matters was provided to Air Sanz Holdings by Russell Kennedy (third party defence claim [11(c)]);
(k)payments of about $AUD929,127.16 were made to the Rubin Group to provide cashflow support and working capital for the purpose of completing its projects and the development of its products (third party defence claim [14(e) and (f)]);
(l)Mr Biviano introduced to Mr Rubin some potential investors in the Rubin Group (third party claim defence [19(a)]);
(m)Mr Biviano attended some meetings with Mr Rubin and some potential investors in the Rubin Group (third party claim defence [19(b)]);
(n)from about 2003, Chambers & Partners acted as accountants for Mr Bertuna and some of his related entities (third party claim defence [21(a)]);
(o)Chambers & Partners assisted with the incorporation of International Assets (third party claim defence [21(c)]);
(p)Mr Biviano was a director of various entities associated with Mr Bertuna and held shares or other financial interests in entities owned by or associated with him (third party claim defence [21(d) and (f)]);
(q)Mr Biviano or his related entities have guaranteed some business loans of entities associated with Mr Bertuna (third party claim defence [21](h)]);
(r)in or about March 2017, Mr Biviano attended a meeting with Mr Bertuna and Mr Rubin at which an investment in Mr Rubin’s product and/or businesses by Mr Bertuna or his associated entities was discussed, and that Mr Rubin did almost all of the talking at the meeting (third party claim defence [23(a)-(b)]);
(s)following the first payment by Mr Bertuna or his related entity, Mr Biviano told Mr Rubin that he had liaised with Mr Bertuna about the proposed purchase by Amosa of shares in iAM International, and that the discussion concerned funding support for the Rubin Group generally, not iAM International specifically (third party claim defence [27(a)]);
(t)Mr Biviano believed that the International Assets payments were principally intended to fund product development and cashflow for the business (third party claim defence [27(a)]);
(u)the meeting on 18 March 2019 at Sandringham was organised by Mr Rubin and attended by Mr Di Gregorio and Mr Biviano. Mr Biviano’s role at the meeting was to take notes to give to Mr Di Gregorio and his advisers (third party claim defence [48(b)]);
(v)Mr Rubin, Mr Biviano and Mr Di Gregorio met regularly to discuss how development of the Air Sanz product was progressing (third party claim defence [49(a)]);
(w)Mr Biviano informed Mr Rubin that he had liaised with other investors in the Rubin Group about funding support for the group (third party claim defence [49(c)]);
(x)Mr Biviano may on some occasions have been called into meetings between Mr Rubin, Mr Di Gregorio and others when Mr Biviano was attending Mr Rubin’s office for other reasons (third party claim defence [49(d)]); and
(y)Mr Biviano believed that the Amosa payments were principally intended to fund product development (third party claim defence [50(a)]).
THE EVIDENCE
36 The plaintiffs led evidence from 13 witnesses. They were:
(a) Angelo Bertuna;
(b) Stavroula Alebakis;
(c) Mario Di Gregorio;
(d) Mark Penkethman;
(e) David Love;
(f) Panrazio Dell’Aquila;
(g) Penelope Dell’Aquila;
(h) Nicole Buna;
(i) Michael Leithhead;
(j) Samuel Karroum;
(k) Paul Smyth; and
(l) David Campbell.
37 The Rubin parties led evidence from Ms Poland and Robert Allan. The Biviano parties led evidence from Mr Biviano.
38 All witnesses were affected by the lapse of time between the events they were recalling and the trial date.
Mr Bertuna
Introduction to Mr Rubin
39 Angelo Bertuna is a panel beater, who for many years has managed a panel shop for prestige cars. Mr Biviano has been his personal accountant and business partner over this period. Mr Bertuna is the partner of Ms Alebakis.
40 Mr Bertuna said that he first met Mr Rubin in 2014 or 2015 when he inspected Mr Rubin’s damaged Ferrari at the Donvale premises. Mr Rubin started talking about his products. Subsequently, Mr Rubin described himself as the inventor of a hand dryer, and said that he was looking for funding from investors to finish and launch his product. He also described his previous experience in South Africa where he had a hair dryer business, private jets and a mansion. Mr Bertuna was not interested, and was not financially in a position to assist.
41 Mr Bertuna said that about a year later, Mr Biviano and Mr Rubin asked him to attend the Donvale premises to inspect Mr Rubin’s Ferrari which was again damaged.
Donvale meeting
42 After inspecting Mr Rubin’s car, Mr Bertuna was invited into Mr Rubin’s office. On his office wall were hand dryers and air purifiers with company logos and names. The office contained a boardroom and couch and looked very professional. Mr Bertuna said that Mr Rubin showed him the products and what they did. One hand dryer was fitted with an anti-bacterial hand spray system. Mr Bertuna said that he regarded this as an absolutely great idea.
43 Mr Bertuna said that Mr Rubin told him that he had put an air purifier in a hospital room, and that after 8 hours the room was 99.9% free of bacteria. Mr Rubin also said that he had clients including a company called Vectair in the United Kingdom, and he had invested $20 million and worked on the development of products for over 20 years. Mr Bertuna said that Mr Rubin showed him all of the different models in his product range. Mr Biviano was present while Mr Rubin made his presentation.
44 Mr Rubin also said that he was working on a Bluetooth-connected management system for a new hand dryer which would notify when the antibacterial liquid bottle reached a certain point, or the air filter started to get full. As well as selling products, the business would have a service side.
45 Mr Bertuna said that Mr Rubin told him of his plans for the product and the money he needed to finish the product. Mr Rubin said that a 10% share would be $2 million. Mr Bertuna responded that there was no way that there would be a $2 million investment here.
46 Mr Bertuna said that Mr Rubin stated that the product was the next best thing after sliced bread, and talked up the $2 million investment. He said that he was going to float the company on the New York Stock Exchange. Mr Bertuna said that Mr Rubin said he had many customers. He also recalled Mr Rubin saying the main company was called Air Sanz Holdings.
47 Mr Bertuna said that Mr Rubin needed $1.8 million to finish the product, and that his maximum was around the $1 million mark which stretched out to $1.2 million.
48 Mr Bertuna said that he separately asked Mr Biviano how long he had been Mr Rubin’s accountant and whether the figures were right. Mr Biviano said that he had had a relationship with Mr Rubin for about six months.
49 Following his discussion with Mr Rubin, Mr Bertuna spoke with his partner, Ms Alebakis. He said that he had been to a client’s place who was also one of Mr Biviano’s clients. He described the hand dryer and antibacterial spray to Ms Alebakis. He said that Mr Rubin was not far off from finishing the product which should be up and running in a year or couple of years. He said that around $1.5 million was needed, and that the decision to invest was up to Ms Alebakis. He said that an investment could turn out to be really good.
Subsequent discussions
50 Mr Bertuna said that Mr Rubin subsequently called him from time to time, and told him where he was at with the product. On one occasion, Mr Rubin mentioned that there was a problem with the machine as the metal housing would not close properly, and that his engineer was rectifying it. On another occasion, he said that he wanted to build a new display because he had new housings. He asked whether Mr Bertuna could get the machine housing because it was raw metal.
51 Mr Bertuna said that in March 2017, he received a call from Mr Rubin asking when they would give him some funds. Mr Bertuna said that he asked Mr Rubin how much he needed to finish the product. Mr Rubin responded $2 million or $1.5 million. Mr Bertuna then contacted Ms Alebakis asking her to transfer funds if she was ready to do so. The initial payment was $200,000. There was a later transfer of $1 million which equated to a 10% interest in the main company. Mr Bertuna did not receive any documentation or paperwork in exchange for the payment of $1.2 million. Mr Bertuna said that the money was paid to finish the product.
52 Mr Bertuna said that he subsequently called Mr Rubin to check on the progress of the machine. After about six months, Mr Rubin made about five further calls stating that he needed more money. In their telephone conversations, Mr Bertuna said that Mr Rubin would justify why more funding was needed. He would say that he had a problem with the machine which was not working, or a component was not working, or a new motor was required, and that it would cost him an additional $200,000. Mr Rubin would say that if there was a problem with the product, it would have to go back to Lachy, his engineer, to re-engineer the product and fix the issue. Mr Rubin said a lot of times to Mr Bertuna and Mr Biviano that if more money was not sourced, he would put Air Sanz into liquidation. He said that he had to team up with Mr Biviano as to how this situation would be handled.
53 Mr Bertuna said that he did not have any involvement in the decision made by International Assets to make payments additional to the $1.2 million. These decisions were made by Ms Alebakis and Mr Biviano.
54 Mr Bertuna said that he and Ms Alebakis probably had three meetings with Mr Rubin and Ms Poland at the Donvale and Sandringham premises.
Sandringham meeting
55 At a meeting at the Sandringham premises, Ms Alebakis asked Ms Poland how much was required to finish the product. Mr Bertuna said that Ms Alebakis told Ms Poland not to provide one figure at that time and have another figure next month. Ms Alebakis insisted that Ms Poland should tell them exactly what was going on to finish the product and get it on the market. Ms Poland’s response was that $250,000 was needed to finish and launch the product. Ms Alebakis and Ms Poland then discussed what the $250,000 would accomplish.
56 Mr Bertuna said that he had been to the Donvale premises five or six times, and to the Sandringham premises on one occasion.
57 Mr Bertuna said that the purpose of the payment of money by International Assets was to finish the product. If Mr Rubin had told him that the money provided by International Assets was not to be used for completing the product but was instead for Mr Rubin’s personal use, he would have instructed that it not be invested.
58 Mr Bertuna said that he became a bankrupt on 4 June 2014. He did not inform Mr Rubin of this. He said that he had been the operations manager of Luxury Auto Body and another body works since about 2010.
59 Mr Bertuna said that in his initial telephone call to Mr Biviano in 2017 Mr Biviano said that he was Mr Rubin’s accountant and had invested in iAM International.
60 Mr Bertuna said that at the meeting at the Donvale premises, Mr Rubin told him that he had a long history of developing hand dryers and purifiers, and had spent $20 million in the development and refinement of the products. Mr Bertuna said that Mr Rubin’s products under development looked impressive. Mr Rubin was excited about the products. Mr Bertuna said that all he heard was that the investment was going into the company. Mr Bertuna said that the investment was in Australian dollars and not US dollars, and that the decision to invest was made by Ms Alebakis. Mr Bertuna said that once he heard that Mr Biviano was the accountant for Mr Rubin he thought that maybe there was something there.
61 Mr Bertuna said that Mr Rubin told him that the likely return was ten times the investment, and that he was planning to list the company on the New York Stock Exchange in 12 months. Mr Bertuna said that Mr Rubin explained that it was the next best thing to sliced bread. Mr Bertuna said that he had nothing to do with the payments or financials. They were dealt with by Ms Alebakis and Mr Biviano.
62 During the meeting with Ms Poland, Ms Alebakis asked Ms Poland what it was going to cost to get the product launched. Ms Poland responded $250,000.
Conversation with Mr Biviano
63 Mr Bertuna recalled a conversation with Mr Biviano in about September 2017 where he asked Mr Biviano whether he and Ms Alebakis were getting more shares as they had given Mr Rubin much more money.
64 Mr Bertuna said that in late June or early July 2017, he told Mr Biviano to transfer $1 million to Mr Rubin from the Waterdale Asset Trust on behalf of International Assets. A total amount of $1 million was paid in July and August 2017. Mr Bertuna confirmed that Waterdale Towing Pty Ltd (‘Waterdale Towing’), as trustee of the Waterdale Asset Trust, lent International Assets $240,000 and a loan account was established in this amount. Mr Biviano and Mr Bertuna are two of the directors of Waterdale Towing. Elldon Pty Ltd was a 19% unit holder of the Waterdale Asset Trust.
Payments
65 Subsequent to September 2017, International Assets made regular payments of $12,000 to Air Sanz Holdings. The payments were made at Mr Rubin’s request. He would ask for money every week or month and state that unless the money was paid, he would wind the company up.
Ms Alebakis
66 Stavroula Alebakis is an accounts manager, and the sole director of International Assets.
67 Ms Alebakis said that she first became aware of Air Sanz Holdings in early March 2017 following a meeting between Mr Bertuna, Mr Rubin and Mr Biviano. Mr Bertuna told her that Mr Rubin had invented a hand dryer that had a hand sanitiser as well as an air purifier. He had previously invented the hair dryer that goes into all hotel rooms, and was a successful businessman.
68 Ms Alebakis said that Mr Bertuna mentioned what he had discussed with Mr Rubin, and said that he would get shares in Air Sanz Holdings in return for an investment of $1.2 million. He considered it to be a good investment.
Meeting with Mr Rubin on 29 March 2017
69 Ms Alebakis said that she and Mr Bertuna met with Mr Rubin and Ms Poland at Donvale on 29 March 2017[2] within a week or ten days of her conversation with Mr Bertuna. She said that she and Mr Bertuna walked past a Ferrari engine in the foyer to Mr Rubin’s upstairs office and boardroom. On the walls of his office, Mr Rubin displayed models of hand dryers and sanitisers with paperwork and contracts placed on the boardroom table.
[2]The meeting on 29 March 2017 was not pleaded in the statement of claim. Senior Counsel for the plaintiffs stated that he would not rely on what was discussed at this meeting to prove the representations alleged in the relevant part of the statement of claim.
70 Ms Alebakis said that when Mr Rubin commenced the meeting, he said that he was an inventor and had invented the hair dryer that sits on the walls in a lot of hotels. He said his invention of the hair dryer was so successful that he had a private jet, a helicopter and an amazing life in South Africa, and that he was now in the process of inventing an air purifier and a hand dryer that spat out hand sanitiser. Mr Rubin said that he had an air purifier running for about a month in a hospital. The report found that there was no bacteria or pathogens in the air after that.
71 Ms Alebakis said that Mr Rubin showed her all of the models on the wall. Some were working. She asked how much he wanted. Mr Rubin responded that he wanted $1.2 million. Ms Alebakis said that Mr Rubin then showed her emails which showed that he had contracts with Vectair, and that the project would take about 12 months to complete. He said that you would get 10 times your money within 12 months, and that the company would be listed on the New York Stock Exchange. Ms Alebakis said that she did not know how many shares they were buying. Mr Rubin told her that the shares were in Air Sanz Holdings.
72 Ms Alebakis said that during this conversation Ms Poland agreed with everything that Mr Rubin said. Sometimes Ms Poland would elaborate on the hand dryer and air purifier, how successful Mr Rubin was, and that they had a lot of buyers.
Payment of $1.2 million
73 Ms Alebakis said that after the meeting on 29 March 2017, she made a payment of $200,000 to the bank account of Air Sanz Holdings. She said that she decided to do so because she thought it was a good idea with an amazing return. It was the opportunity of a lifetime.
74 Ms Alebakis said she discussed the product with Mr Bertuna and with Mr Biviano, and decided to make the investment.
75 Ms Alebakis said that to make the initial payment of $200,000, and to make the payments totalling $1 million, between 4 July and 21 August 2017 International Assets obtained a loan from Waterdale Towing. The payments were arranged by Mr Bertuna and Mr Biviano.
Requests for further payments
76 Subsequently, Mr Rubin told Mr Bertuna, Mr Biviano and Ms Alebakis that he required more money to finish the machine. As a result, Ms Alebakis said she made further payments commencing with $12,000 on 1 September 2017. Mr Rubin constantly asked for money to finish the product. She said that the first request by Mr Rubin for extra money was not long after the initial investment. Ms Alebakis said that she spoke to Mr Rubin on the phone and personally.
77 Ms Alebakis said that Mr Rubin asked her by phone for more money over a dozen times. She said that he told her that he needed to spend more money on die cuts, templates and so on to finish the product. While she was not quite sure what they were, he needed extra money to finish the product. His requests for extra money got to the point where he started threatening to close the company down. She said that once you have invested $1.2 million and extra money, you were nearly drowning. As a result, she kept giving extra money to Mr Rubin hoping that he would get the product finished.
78 Ms Alebakis said that she found out that it was proposed that International Assets would acquire an extra 5% from Eddie Hartanto after she signed some paperwork that Mr Biviano brought down to the beach house in Sorrento in January 2018. She signed the paperwork without reading it because Mr Biviano was the company accountant and a friend. Ms Alebakis said that she had many face to face meetings and discussions with Mr Rubin and Ms Poland at the Donvale and at Sandringham premises. She said that her last meeting was at Sandringham. She said that she wanted to meet with Ms Poland because she did not want to deal with Mr Rubin anymore. He told one story after another and she did not believe him. She said that she had pretty much labelled Mr Rubin as a liar because over time, despite his promises, nothing eventuated.
Sandringham meeting in August 2018
79 Ms Alebakis said that she and Mr Bertuna went to Mr Rubin and Ms Poland’s home in Sandringham in about August 2018. She said that she asked Ms Poland what was required to get the product finalised and out on the market. She said that Ms Poland responded $250,000. She said that she asked the question again, and whether she was sure that all she required was $250,000 to go onto the market. She said that she asked whether they were going to have a continual chain of events like Mr Rubin always came up with; that they have got this problem, or have to complete that. She said that she asked Ms Poland what the product would cost with a margin for error in it. Ms Poland responded $250,000.
80 She said that Mr Rubin then stated that they had people coming from Israel at the end of September, and interested buyers.
81 Ms Alebakis said that she did not give her attention to Mr Rubin, but asked Ms Poland again if they gave her $250,000 would the product be finalised and out on the market. Ms Alebakis said that Ms Poland responded ‘yes’, referring to Vectair, a big company that was interested.
82 Ms Alebakis said that as a result of the conversation she caused multiples of $50,000 to be paid to finalise the product. She said that she discussed further payment of $50,000 with Mr Biviano.
83 Ms Alebakis said that in September 2018 she found that Ms Poland did not answer her phone, and that the people in Israel were not coming because they had a wedding to attend to. She said that there was one excuse after another.
84 Ms Alebakis said that it was never suggested that the payments made by International Assets could be used by Mr Rubin for non-business purposes. She said that if she had been told that she would not have invested a dime.
Mr Di Gregorio
85 Mario Di Gregorio is a company director, and is married to Antoinetta Di Gregorio, a director of Amosa Pty Ltd, the trustee of the Di Gregorio Family Trust.
86 Mr Di Gregorio completed year 11 education and then commenced work. In 1993 he opened a pizza shop at Endeavour Hills and subsequently grew a chain of pizza shops. From 2015, he and his business partner, Mr Love, acquired other pizza shops in Gippsland. During this time, Mr Love opened a pizza restaurant in Paynesville. Mr Di Gregorio said that he was introduced to Mr Rubin by Mr Love at the Paynesville restaurant. Mr Rubin had installed air purifiers and hand dryers in the restaurant to show how they would clean up the toilet area and provide clean fresh air.
87 Mr Di Gregorio said that Mr Love told him that Mr Rubin built clean air machines and was developing a product that would be huge. Mr Love said that the product would be great for all sorts of uses such as hospitals and offices, and would go global. It would be a really good product once it was finished. Mr Love’s information was based on what he had been told by Mr Rubin.
Meeting Mr Rubin and Mr Biviano
88 Mr Di Gregorio said that in January 2018 he went to Paynesville and met Mr Rubin at his large holiday home which was situated on the river and the lake and had watercraft facilities. While he was there, Mr Di Gregorio said that Mr Rubin showed him his office with photos of the machines and things he had achieved in South Africa including his aeroplane, staff and hair dryers.
89 Mr Di Gregorio said that Mr Rubin said that he was working on new air purifiers and hand dryers. He wanted to make them extra special by adding a fragrance sanitiser and sprayer so that the it would spray your hands with an antibacterial every time giving you protection on your hands.
90 Mr Di Gregorio said that Mr Rubin said that it was going to be the biggest thing since sliced bread as everyone in the world needs clean air. The product would be huge, out of control and monstrous globally. Mr Rubin said that he was raising funds to get the product completed.
Donvale meeting
91 Mr Di Gregorio said that he met Mr Rubin twice at Paynesville and then in April 2018 at Donvale. Mr Di Gregorio said that Donvale was a residential property with a massive office upstairs. Mr Di Gregorio said that Ms Poland, Zac Anthony (a bookkeeper), and Mr Biviano attended the meeting.
92 After the meeting, Mr Rubin introduced Mr Biviano, describing him as the company accountant for Air Sanz who looks after all of Air Sanz’s affairs. Mr Rubin described Mr Biviano as a director of the company and investor. He introduced Ms Poland as his wife, and a director who did all of the bookkeeping work with Mr Biviano, and worked with Mr Ting from Malaysia to develop the products. Mr Di Gregorio said that the meeting lasted for four hours.
93 Mr Di Gregorio said that Mr Rubin showed him previous models of hair dryers and hand dryers that he had done. He said that he was developing the most amazing product on earth and that it was bigger than sliced bread. He said that he had customers that already wanted the product. He was still working on the finalisation and finishing of the product.
94 Mr Di Gregorio said that Mr Rubin identified numerous customers. The primary one was Vectair, a global company based in London, which Mr Rubin said operated in about 20 countries throughout the world. Mr Di Gregorio said that Mr Rubin referred to Rentokil, a global company based in America and operating in Australia; Kelmac, a Japanese company; Steiner Hygiene Air-Wolf, a German company; and a company in Israel.
95 Mr Di Gregorio said Mr Rubin described his work as putting a fragrance pad in the sprayer, so that the spray would eject and protect your hands with an anti-bacterial. Mr Rubin said that air purifiers were also part of his work for separate rooms. The hand dryer had an in-built air purifier and sprayer. Mr Di Gregorio said that he was in the hospitality industry, operating his pizza stores, and thought that the product sounded really good.
96 Mr Di Gregorio said that Mr Rubin told him at the meeting that he wanted $2 million to finalise the development of the V model for Vectair. Mr Rubin said that the V model had a V-shape in front of the machine logo so that it looked like it was specifically for Vectair. The money was to get patents, dies, tools, parts, supplies, design, engineering and marketing, and to get the product finished and on the market ready for Vectair to purchase.
97 When asked at the meeting by Mr Rubin whether he could raise the money, Mr Di Gregorio said that he could not because he was doing a townhouse development at Dandenong which would not be finished for 6-12 months.
98 Mr Di Gregorio said that Mr Biviano said that he was involved with Mr Rubin, co-ordinating and organising, and that they needed to raise funds to get the V model for Vectair done. Mr Di Gregorio said that Mr Biviano stated that he was looking after Mr Rubin’s affairs, and that if they raised the money and got the product to market, they would make a lot of money. The quicker the money could be raised, the quicker they could get the product to market.
99 Mr Di Gregorio said that Ms Poland said the same thing as Mr Biviano, and that they were working on the Vectair model. He said she told him that this is the one they were going to specifically work on because Vectair wanted this product and they needed to raise $2 million to get this product to market.
Subsequent meetings
100 Mr Di Gregorio said that Mr Rubin would often ask him to come over and go through things. Mr Di Gregorio said that he went to Donvale at least three times a week and also to Sandringham. Mr Di Gregorio said that Mr Rubin had a big lounge room office at Sandringham. He and Mr Rubin would often discuss the product, customers, supplies and what needed to be done.
101 Mr Di Gregorio said that he thought Mr Rubin was quite wealthy. He said that he owned Sandringham, Donvale, Paynesville, and a home in California. He had a Ferrari in his garage at Sandringham, and BMWs at both Donvale and Sandringham. Mr Rubin’s children also had expensive vehicles.
102 Mr Di Gregorio said that Mr Biviano, Ms Poland and Mr Campbell regularly attended meetings after April 2018. Others who attended were Zac Anthony, Paul Smyth, and later Rob Allan. Mr Rubin also invited people who made components, parts or liquids for the machines who he was dealing with.
103 Mr Di Gregorio said that Mr Rubin always spoke about money. As time progressed, he would regularly ask for the $2 million. Mr Biviano and Ms Poland also regularly asked how he was going with the money.
104 On his wall at Donvale, Mr Di Gregorio observed that Mr Rubin had a diagram of the Air Sanz companies. Mr Di Gregorio said that to his knowledge they were buying into Air Sanz at the time. He noticed that there were different companies to sell products, consumables, and machines. He said that this looked normal to him, but the main company was always Air Sanz which was at the top.
Indonesian sales
105 On 4 October 2018, Mr Di Gregorio and Ms Poland signed a non-disclosure deed poll because he and Mr Love were to purchase 144 air purifiers which Mr Rubin had advised were ready for sale. Mr Love had people in the hotel business, and friends who it was expected would buy them and put them in their hotels and motels. The air purifiers were shipped to Indonesia in about March 2019.
106 Mr Di Gregorio said that ultimately he and Mr Love finished up with 288 air purifiers. When Mr Love and Mr Smyth got to Indonesia, they found that the machines had no plugs, filters or pods. The plugs had been removed from the machines. When he asked Mr Rubin about this, he said that Indonesia had a different plug. In about April or May 2019, Mr Di Gregorio said he obtained a box of fragrance pads which all failed after they arrived in Indonesia. When Mr Di Gregorio discussed the position with Mr Rubin, he became abusive and blamed Mr Di Gregorio.
Business plan
107 On 8 October 2018, Mr Di Gregorio emailed Mr Rubin with a proposed business plan for a new company for the ongoing supply of products to key distributors in various market segments and countries. Mr Di Gregorio said that he set up a new business called NewGen and incorporated a company called NewGen Trading Pty Ltd. On 20 February 2019, he provided Mr Rubin with a potential contributor list. Nothing came of the venture. After the loss of the failed equipment in Indonesia, there was nothing to sell.
108 Mr Di Gregorio said that from mid-2018, he had frequent money discussions with Mr Rubin. Every two or three weeks Mr Rubin would contact him to obtain more money and complete the product for Vectair. Sometimes Mr Rubin would request Mr Di Gregorio to come in during the evening late at night because he was having telephone calls with Mr Paul Wannacott, Vectair CEO. There were numerous conversations with Mr Wannacott and other manufacturers as well. Mr Biviano attended meetings regularly and Ms Poland on a couple of occasions. Mr Campbell listened to a few of them.
(b) Mr Rubin did not consent to the recording of the conversation;
(c) the probative value of the conversation did not outweigh the court’s desire to prevent unlawful recordings from occurring.
Ruling
684 I have listened to the recording and accept the submission of the Rubin parties that the recording is a recording of a private telephone conversation between Mr Rubin and Mr Di Gregorio made in contravention of s 6(1) of the SD Act. While there are some interruptions it is plain from the nature of the conversation that it was intended to be a private conversation. While Mr Di Gregorio consented to the recording of the conversation by Mr Bertuna, Mr Rubin did not.
685 I reject the plaintiffs’ submission that the making or recording of the recording:
(a) was made with the express or implied consent of Mr Rubin; or
(b) was in the public interest.
686 The object of the recording was to obtain admissions from Mr Rubin for the purpose of a possible future legal proceeding.
687 In exercising my discretion under s 138(1) of the Evidence Act, I take into account that the contravention of s 6 of the SD Act was deliberate and not reckless. Much of the recording concerns medical issues relating to Mr Rubin, and adverse comment by Mr Rubin directed at Mr Bertuna. Some very limited passages in the recording contain relevant material particularly a passage where Mr Rubin reiterates that the asset company ownership representation was made to Mr Di Gregorio.
688 I have already found that the asset ownership company representation was made by Mr Rubin to Mr Di Gregorio on 13 March 2019 on the basis of Mr Di Gregorio’s evidence when taken with the admission of the Rubin parties in their defence, and the evidence of Mr Allan, Mr Penkethman and Mr Biviano. It is also supported by the adoption of cl 6 of the heads of agreement.
689 Taken overall, I do not consider that the very limited relevant passages in the recording materially advance the witness and documentary evidence already before the court.
690 I conclude that desirability of admitting the recording into evidence does not outweigh the undesirability of admitting evidence that was obtained deliberately and unlawfully.
691 The recording will not be allowed into evidence.
Contributory negligence
692 The Rubin parties submit that International Assets was contributorily negligent as it did not engage in any due diligence of Mr Rubin or the investment that was being proposed, and because it did not seek independent financial or legal advice. They said that if International Assets had sought independent financial or legal advice, it would most likely have received similar advice to that given by Mr Penkethman to Mr Di Gregorio.
693 The Rubin parties and the Biviano parties submit that any award in favour of Amosa should be reduced under s 137B of the Competition and Consumer Act or s 12GF(1B) of the ASIC Act having regard to Amosa’s share in the responsibility for its own loss or damage arising from the Penkethman email and oral advice to like effect. They rely on Argy v Blunts & Lane Cove Real Estate Pty Ltd, where Hill J observed:
A case may perhaps be imagined where an applicant is so negligent in protecting his own interests that there will be a finding of fact that the representation complained of was not in the circumstances a real inducement to his entering into a contract. In such a case the element of causation between misrepresentation and damage will have been severed by an introduction of the negligence of the applicant.[92]
[92](1990) 94 ALR 719, 744 (Hill J).
694 Under s12GF of the ASIC Act and s 137B of the Competition and Consumer Act, the Court has jurisdiction to reduce an award by reason of the claimant’s contributory negligence only if the defendant
(a) did not intend to cause the loss or damage; and
(b) did not fraudulently cause the loss or damage.
695 In view of the fraud of the defendants as found in this proceeding, the Court’s jurisdiction to reduce the award by reason of contributory negligence does not arise.[93] As this point was not raised in closing submissions I will give the parties the opportunity of filing written submissions as to this issue.
[93]Tang v Yu [2024] FCA 297, [66] (Stewart J); Dong v Song (No 2) [2018] ACTSC 180, [106] (McWilliam AsJ).
Loss submissions
Rubin parties submissions
696 The Rubin parties submitted that Ms Alebakis personally made the first payment of $200,000 on 29 March 2017 an that International Assets could not recover this money. International Assets was incorporated on 11 April 2017 with Ms Alebakis as the sole director, secretary and shareholder. When she made the payment of $200,000, Ms Alebakis contemplated that a company yet to be incorporated would make the payment, and hold the shares that would be received. She thought that the product was a great idea and the return was amazing. She discussed the product with Mr Bertuna and Mr Biviano and considered that it was the opportunity of a lifetime. On 29 March 2017, she signed the authority for the National Australia Bank to pay $200,000 to Air Sanz Holdings. With Mr Biviano’s help she also arranged for an additional $950,000 to be paid into the Air Sanz Holdings account giving a total of $1.2 million. Ms Alebakis subsequently signed share transfers in the name of International Assets and signed all necessary documents to ensure that the assets held by International Assets were held by that company as trustee of the Stavroulas family trust. Mr Rubin and Mr Biviano authorised iAM International to transfer shares in that company to International Assets.
697 There was no reason why Ms Alebakis could not make a payment on behalf of a company yet to be registered. The company was registered less than a fortnight later. Thereafter all concerned with the transaction treated the $200,000 payments as made on behalf of International Assets. Pre-incorporation contracts are recognised under ss 131-133 of the Corporations Act. International Assets was entitled to take the benefit of and recover the funds expended on its behalf.
Biviano parties submissions
698 The Biviano parties submitted that the Amosa third party payments were not recoverable by Amosa as it suffered no loss. They were only recoverable by the third parties themselves. Mr Di Gregorio invested their funds which were paid by Amosa to Air Sanz Holdings at Mr Rubin’s request.
699 I reject this submission. In accordance with ordinary legal principles upon receipt by Amosa of the investments from the third party investors, a resulting trust came into existence by operation of law. Upon receipt of the third party funds, Amosa became the legal owner of those funds, and the beneficial ownership sprang back to the third party investors. In the event that the third party investors’ funds were lost, Amosa as the legal owner of that money had the right, and may be obliged, to seek to recover the funds. It is a proper plaintiff to recover the third party funds as the legal owner of those funds.[94]
[94]Young v Murphy [1996] 1 VR 279, 281 (Brooking JA), Nicholson Street Pty Ltd v Letten [2015] VSC 583, [20] (Judd J).
Apportionment
700 Part 2 Division 2 Subdivision GA of the ASIC Act deals with apportionable claims. Part IVA of the Competition and Consumer Act contains similar provisions.
701 Section 12GP defines an apportionable claim to be, among other things, a claim for damages made under s 12GF for economic loss. Amosa’s claim in respect of misleading and deceptive conduct is an apportionable claim.
702 Section 12GP defines a concurrent wrongdoer in relation to a claim to be:
a person who is one of two or more persons whose acts or omissions (or act or omission) caused, independently of each other or jointly, the damage or loss that is the subject of the claim.
703 Section 12GR(1) provides that:
in any proceeding involving an apportionable claim…the liability of a defendant who is a concurrent wrongdoer in relation to that claim is limited an amount reflecting that proposition of the damage or loss claimed that the court considers just having regard to that defendant’s responsibility for the damage or loss.
704 In Wealthsure Pty Ltd v Selug,[95] Besanko J considered that the relevant matters in determining apportionment under a provision of the Corporations Act were the degrees of departure from the standard of a reasonable person and the relative importance of the acts of the parties in causing the damage. The same considerations apply to an apportionment under s 12GR of the ASIC Act.
[95](2014) 221 FCR 1.
705 Both the Rubin parties and the Biviano parties seek an order for apportionment of the damages awarded to Amosa.
706 Some salient features of the evidence in the proceeding are:
(a) Mr Rubin was the architect of the scam diverting investor funds provided for product development for his own purposes;
(b) Mr Rubin and the Rubin family benefitted from what was done. They purchased and enjoyed the new holiday house and additional land, high-end and premium cars and watercraft;
(c) there was no benefit to Mr Biviano or to Chambers & Partners;
(d) Mr Di Gregorio and Mr Biviano both enjoyed close relations with Mr Rubin and Ms Poland;
(e) Mr Bivano must have become aware of the diversion of investor funds by Mr Rubin in or about July 2018, but remained silent about what had been done until about August 2020;
(f) if Mr Bivano had responded appropriately when he became aware of Mr Rubin’s diversion of the funds provided by International Assets, the losses subsequently suffered by Amosa might not have occurred at all, or might have been much less; and
(g) Mr Di Gregorio became aware of the scam in about August 2020.
707 In my view, a fair and reasonable apportionment of the Amosa claim is 70% for the Rubin parties and 30% for the Biviano parties. I make this assessment having regard to the whole of the evidence in the proceeding which I have summarised above.
Third party claim
708 The Rubin parties bring a third party proceeding against the Biviano parties. Apart from contribution and apportionment, there are essentially three causes of action relied on by the Biviano parties. The first is that Chambers & Partners and Mr Biviano acted in breach of what are described in the third party notice as the International Assets Expectations to the effect that:
(a) Mr Biviano would have accurately informed Mr Bertuna about Elldon’s purchase of shares in iAM International;
(b) Mr Biviano would have kept Mr Bertuna informed of all matters relevant to his decision to buy shares;
(c) if anything was said by Mr Rubin or Ms Poland to Mr Bertuna during the meeting in March 2017, Mr Biviano would have corrected it;
(d) if Mr Biviano believed that any of the Rubin parties were acting contrary to any representation made by Mr Rubin or Ms Poland to Mr Bertuna or International Assets, he would have informed Mr Bertuna of the same prior to the making of any payments by International Assets or transfer of shares.
709 A similar claim is made by the Rubin parties against Chambers & Partners and Mr Biviano in relation to the payments made by Amosa.
710 The second claim made by the Rubin parties against Chambers & Partners and Mr Biviano relates to the disclosure of confidential information relating to the Rubin parties alleged to have occurred at the time when the freezing order was obtained in this proceeding.
711 The third claim is made by the Air Sanz Holdings Trust for failure to pay in full for Elldon’s shares. An amount of $USD1.2 million is claimed while payments received are said to amount to $AUD929,127.76.
712 The Biviano parties submitted that the Rubin parties did not address their third party claims in their written or oral openings or in their witness outlines. No evidence was led at trial in support of the third-party claim, which should be dismissed..
713 I am not satisfied that any of the three claims have been substantiated. In Mr Rubin’s absence, they were not pressed at trial. The allegations made in the first claim as to the so-called International Assets Expectations and the Amosa Expectations are not supported by any documents and have not been proven by oral evidence. It has not been shown that any of these allegations have any foundation in fact. Mr Rubin did not give evidence, and nothing said by Mr Biviano when he gave evidence supports these claims. They must be dismissed.
714 Likewise, the second claim concerning the alleged disclosure by Mr Biviano of confidential information at the time of the application by the plaintiffs for the freezing order was unsubstantiated. Mr Rubin did not give evidence, and no attempt was made to show that any documents that Mr Biviano allegedly made available would not have been forthcoming by subpoena if production was refused. There was nothing in Mr Biviano's evidence that supported that claim.
715 As for the third claim, no evidence was led which might establish a contractual basis for the alleged sale of 10% of Air Sanz Holdings Trust’s shares in iAM International. There was no evidence as to price. The particulars given of the alleged agreement are to the effect that it is partly in writing, partly oral and partly to be implied. Insofar as it is oral, it is said to be constituted by conversations between Mr Rubin and Mr Biviano. Mr Rubin did not give evidence, and the allegations in the third party notice were not substantiated. Mr Biviano denies that he is indebted to the Air Sanz Holdings Trust on the basis of the alleged Elldon Share Purchase Agreement.
716 As a result, the third claim must fail.
717 I will make an order for apportionment, but otherwise the third party claim must be dismissed.
CONCLUSION
718 International Assets and Amosa are successful for the reasons that I have set out above. I will hear counsel for the parties as to the orders that should be made in consequence of these reasons.
SCHEDULE OF PARTIES
| INTERNATIONAL ASSETS PTY LTD (ACN 618 511 078) AS TRUSTEE FOR THE STAVROULA FAMILY TRUST |
| First Plaintiff |
| AMOSA PTY LTD (ACN 081 510 723) AS TRUSTEE FOR THE DI GREGORIO TRUST NO.2 |
| Second Plaintiff |
| v |
| RICHARD RUBIN |
| First Defendant |
| KELLY POLAND |
| Second Defendant |
| AIR SANZ HOLDINGS PTY LTD (ACN 142 136 392) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE AIR SANZ HOLDINGS TRUST |
| Third Defendant |
| IAM INTERNATIONAL PTY LTD (ACN 142 918 072) |
| Fourth Defendant |
| SCJBT PTY LTD (ACN 634 909 078) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE R H RUBIN CHILDREN’S TRUST |
| Fifth Defendant |
| PPMS (VIC) PTY LTD (ACN 633 937 185) IN ITS OWN CAPACITY AND AS TRUSTEE FOR THE PPMS TRUST |
| Sixth Defendant |
| PANACHE GROUP PTY LTD (ACN 061 718 803) IN ITS OWN CAPACITY AND AS TRUSTEE OF THE IT VENTURES TRUST |
| Seventh Defendant |
| IAM VENTURES PTY LTD (ACN 163 615 290) |
| Eighth Defendant |
| ASH GLOBAL PTY LTD (ACN 633 978 944) IN ITS CAPACITY AS TRUSTEE OF THE AIR SANZ HOLDINGS TRUST |
| Ninth Defendant |
| ANGELO BIVIANO |
| Tenth Defendant/First Third Party |
| CHAMBERS & PARTNERS (A FIRM) ABN 40 961 026 929 |
| Eleventh Defendant/Second Third Party |
| ELLDON PTY LTD (ACN 068 938 483) IN ITS CAPACITY AS TRUSTEE OF THE PANDA FAMILY TRUST |
| Twelfth Defendant/Third Third Party |
ANNEXURE A
Payments made by International Assets (‘IA’) to Air Sanz Holdings or iAM International
1 June 2018 $39,878.00 4 June 2018 $110,122.00 29 June 2018 $12,000.00 Further Subsequent IA Payments Date Amount 16 August 2018 $50,000.00 24 August 2018 $50,000.00 31 August 2018 $50,000.00 3 September 2018 $12,000.00 7 September 2018 $50,000.00 2 October 2018 $12,000.00 31 October 2018 $12,000.00 7 December 2018 $12,000.00 27 December 2018 $12,000.00 11 January 2019 $20,000.00 31 January 2019 $12,000.00 1 March 2019 $12,000.00 22 March 2019 $12,000.00 1 May 2019 $12,000.00 31 May 2019 $12,000.00 2 July 2019 $12,000.00 5 August 2019 $12,000.00 19 September 2019 $2,000.00 3 February 2020 $10,000.00 20 April 2020 $5,000.00 10 December 2020 $7,500.00 18 December 2020 $5,500.00 14 January 2021 $5,000.00 15 January 2021 $5,000.00 18 January 2021 $5,000.00 29 January 2021 $5,000.00 5 February 2021 $5,000.00 ANNEXURE B
Payments made by Amosa to Air Sanz Holdings
Initial Amosa Payment Date Amount 4 April 2019 $300,000 Subsequent Amosa Payments Date Amount 25 July 2019 $50,000 5 August 2019 $30,000 12 August 2019 $420,000 6 September 2019 $100,000 19 September 2019 $400,000 7 November 2019 $740,000 19 November 2019 $260,000 Further Subsequent Amosa Payments Date Amount 5 December 2019 $50,000 13 December 2019 $100,000 22 January 2020 $50,000 27 March 2020 $20,000 14 April 2020 $12,000 15 June 2020 $20,000 15 June 2020 $20,000 16 June 2020 $20,000 17 June 2020 $20,000 18 June 2020 $20,000 19 June 2020 $20,000 22 June 2020 $10,000 Amosa Third Party Payments Date Amount 20 December 2019 $100,000 23 March 2020 $3,000 5 May 2020 $10,000 23 June 2020 $100,000 28 July 2020 $750,000 31 July 2020 $240,000 20 August 2020 $100,000 8 October 2020 $20,000 15 December 2020 $10,000 ANNEXURE C
Joint Asset Acquisition Chronology
Date Asset acquired Purchaser Amount 30 November 2017 2018 Seadoo GTX 300 LTD Jetski and trailer $25,900 19 January 2018 Property at 7 Fort King Place, Paynesville Panache Group atf IT Ventures Trust $970,589.44
(incl. adjustments)27 September 2018 2018 Mercury 460 Ocean Runner Boat R H Rubin Children’s Trust $23,185 22 November 2018 RCTXRS300 Jetski $7,500 (after trade-in of existing 2016 Seadoo RXTX300 Jetski) 21 August 2019 White BMW X1 R H Rubin Children’s Trust $60,809 22 August 2019 BMW X5 R H Rubin Children’s Trust $70,000 (after trade-in of pre-existing 2016 Audi SQ5) 29 August 2019 Rolls Royce Dawn Convertible R H Rubin Children’s Trust $440,000 (after trade-in of pre-existing 2014 Bentley GT Speed) 13 September 2019 BMW 320d R H Rubin Children’s Trust $80,128 24 September 2019 Mastercraft XT25 Vessel R H Rubin Children’s Trust $162,000 (after trade-in of existing 2008 Seadoo 230 Boat) 24 September 2019 BMW X5 40i Carbon Black R H Rubin Children’s Trust $57,000 (after trade-in of SQ5) 5 December 2019 Seadoo GTX 300 LTD Jetski $24,000 18 December 2019 Land at 9 Fort King Place, Paynesville SCJBT atf R H Rubin Children’s Trust $454,885.20
(incl. adjustments)15 January 2020 Rolls Royce Dawn BB R H Rubin Children’s Trust $180,000 (after trade-in of Rolls Royce Dawn Convertible) 23 March 2020 BMW X6 M50i R H Rubin Children’s Trust $20,000 (after trade-in of BMW X5) 23 June 2020 BMW X4 M40i R H Rubin Children’s Trust $95,000 18 July 2020 Mini R H Rubin Children’s Trust $57,000
(after trade- in)
Date Asset acquired Purchaser Amount 30 September 2020 Bentley Continental GT Orange Flame R H Rubin Children’s Trust $300,000 (after trade- in of BMW X6) 11 December 2020 BMW X1 R H Rubin Children’s Trust $20,000 (after trade-in of BMW X1) 12 December 2020 BMW X5 R H Rubin Children’s Trust $90,000 (after trade-in of BMW X4) 30 June 2021 Mazda CX5 R H Rubin Children’s Trust $25,040 (after allowing for insurance payment)
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