Josifovski v Page
[2010] NSWDC 177
•18 August 2010
CITATION: Josifovski & Ors v Page [2010] NSWDC 177 HEARING DATE(S): 08 March 2010-11 March 2010
JUDGMENT DATE:
18 August 2010JURISDICTION: District Court - Civil JUDGMENT OF: Sidis DCJ DECISION: 1) Verdict and judgment for Mr Josifovski in the sum of $61,083.68.
2) Verdict and judgment for Highwaygames.com in the sum of $170,485.34.
3) The defendant is to pay the plaintiffs costs of the proceedings. This order is suspended for seven days to allow either party to list the proceedings for further argument on the issue of costs.
4) The exhibits will be retained for 28 days.
5) My reasons are published.CATCHWORDS: COMMERCIAL TRANSACTIONS BETWEEN THE PARTIES - Whether contractual relationships or partnerships - Parties to the transactions - Credit - Fabrication of documents by defendant - Total failure of consideration - Deceit PARTIES: Steve Josifovski (First Plaintiff)
Highwaygames.com Pty Limited (Second Plaintiff)
Lemuel John Page (Defendant)FILE NUMBER(S): 2008/00314507 (Previously 150/08) COUNSEL: Mr R D Marshall (For the First and Second Plaintiffs)
Mr J O’Sullivan (For the Defendant)SOLICITORS: Wiggins Cheffings Lawyers (For the First and Second Plaintiffs)
Bartier Perry Solicitors (For the Defendant)
JUDGMENT
1 Mr Steve Josifovski and the company of which he was a director, Highwaygames.com Pty Ltd, claimed that they paid to Mr Lemuel Page or at his direction sums of money amounting to $137,521.75 that Mr Page agreed to apply on their behalf to various commercial transactions. They claimed that Mr Page failed to do so. Mr Page denied the claims against him and asserted that funds supplied by the plaintiffs were applied, with Mr Josifovski’s knowledge and consent, to a number of high risk ventures that failed.
2 The issues were:
- 1 Credit: which of the parties was to be believed concerning the events surrounding their commercial transactions.
- 2 The basis upon which those transactions were undertaken.
- 3 The parties to those transactions.
- 4 The basis for any liability of Mr Page.
ISSUE 1 - CREDIT
3 The main thrust of the defence was that the plaintiffs provided funds on the basis that there was no guarantee that the investments made would return a profit or that they would not incur losses. Mr Josifovski acknowledged that he was aware that the plaintiffs would be required to bear losses, if any. It was not suggested that the plaintiffs expected an indemnity against loss by Mr Page. However, Mr Josifovski maintained that he was told that Mr Page had received returns of 50% to 200% on share transactions, that Mr Page had proprietary interests in the developments to which he made contributions, that high profile wealthy businessmen were involved and that the properties were ready for development.
4 Mr Josifovski and Mr Page met at school when they were five years old. They maintained a friendship throughout their school years and remained in contact after Mr Page moved to Sydney while Mr Josifovski pursued his business interests from his Newcastle base.
5 By the end of 2001 they were both ostensibly successful business men. Mr Josifovski established a business that, at the time of the hearing, operated through a number of companies under the umbrella of the Highway Group. The business involved the manufacture and distribution of products in Australia and internationally, mostly in south east Asia. The products included amusement machines, gaming products, custom designed printed circuit boards, signal converters, spare parts and internet software. He also engaged in some property transactions.
6 Mr Page undertook business ventures and invested in share trading and property development on his own behalf and through in a number of companies, including Page Equities and Investments Pty Limited.
7 In late 2001 or early 2002 Mr Josifovski and Mr Page met socially in Newcastle and discussed their progress in business. Mr Josifovski claimed that Mr Page told him that he was doing very well and that he owned shares that provided substantial returns. Mr Page agreed that he told Mr Josifovski that he was successful in business. In particular, he gave evidence of a public listing of companies that he undertook with Mr Theo Baker that, according to Mr Page, put Mr Baker into the top 200 richest persons in Australia.
8 As a result of these conversations Mr Josifovski provided funds to Mr Page for a number of share transactions and property developments.
9 Mr Page said that their business transactions commenced in February 2002. Mr Josifovski said they commenced in May 2002.
SHARES
10 Mr Josifovski said that in May 2002 Mr Page told him that a friend, Tod McGrouther, had a company, KTM Capital, that arranged stock exchange listings for private companies. Mr Page offered to obtain shares for him and asked for a cheque, to be paid to Page Equities. The sum of $15,000 was paid on 16 May 2002.
11 In July 2002 they discussed potential listings of companies named as Eagle NT, Rip Curl and Benchmark. Mr Page told him that he could obtain pre-release shares in these companies and that he could expect returns of between 20% and 200%. Mr Josifovski said he agreed to invest in any one of these public listings. He attached to his affidavit a copy of a diary notei for 8 July 2002 on which he said he recorded details of a telephone conversation with Mr Page on that date.
12 $20,000 was paid to Page Equities on 22 July 2002.
13 In August 2002 Mr Page told him that he had stock to a value of $63,000 in Rip Curl that would be worth $127,000 when it floated in about eight weeks.
14 In October 2002 Mr Page told him that he had secured more shares in Rip Curl so that he owned stock to a value of $100,000 of which he could give Mr Josifovski stock worth $60,000. Mr Josifovski told Mr Page that he had only $50,000 available at that time and this sum was transferred from Highwaygames.com to Mr Page on 5 November 2002.
15 No shares in Rip Curl were ever acquired by Mr Josifovski or Highwaygames.com. No shares in any of the other companies discussed were ever acquired by Mr Josifovski or Highwaygames.com.
16 In early 2006, at a time when Mr Josifovski was pressing Mr Page for the return of the money paid to him, Mr Page gave Mr Josifovski a share certificate for 20,000 shares in Advanced Nano Technology Limited. The shares were registered in the names of Mr Josifovski and his wife. Mr Josifovski sold them for $2,790.
17 Mr Page denied any conversations with Mr Josifovski about the acquisition of shares in Rip Curl or Benchmark. He denied that he or any entities in which he was a shareholder ever owned shares in Rip Curl. He denied that offered to purchase shares for Mr Josifovski through KTM Capital or that he acquired any shares for him in this way with the exception of shares in Advanced Nano Tech.
18 He acquired the Advanced Nano Tech shares for Mr Josifovski and his wife for $4,000 when the company was listed out of gratitude for the donation of a pinball machine they had provided to Mrs McGrouther’s charity auction and because he felt bad about a venture at Waratah that did not proceed.
Eagle Wireless Corporation Limited
19 Mr Page said Page Equities purchased 150,000 $1 shares in Eagle Wireless, an unlisted public company, in 2000. This company was initially referred to in the defence as Eagle Wireless Corporation Pty Limited. This was changed to Eagle Wireless Pty Limited in an amended defence filed on 10 March 2010. Mr Page said he exhibited to his affidavitii the historical extract he said he obtained from ASIC for Eagle Wireless. This document was in fact an extract for a company named Eagle Technology Corporation Limited.
20 Mr Page said he thought Mr Josifovski might be interested in acquiring shares in Eagle Wireless. With this in mind he introduced Mr Josifovski to Mr Xenos, a director of Eagle Wireless, at lunch in early February 2002 at the Rick Damelian Café in Sydney. At that meeting Mr Page offered to sell some of Page Equities shares to Mr Josifovski at $1 per share, the price he paid for them. Mr Josifovski said he could raise $35,000 and Mr Xenos agreed to amend the share register accordingly.
21 Mr Josifovski said he would not have $35,000 for a month or two. He asked that the shares be transferred to a Hong Kong company called Coinopexpress.com Limited. Having received details of this company from Mr Josifovski, Page Equities forwardediii them to Mr Xenos on 13 February 2002 with a request that he amend the record of shares held for Page Equities in accordance with the agreement that 35,000 of the shares be transferred to Coinopexpress.com.
22 Mr Xenos then wroteiv to Page Equities and Coinopexpress.com confirming the transaction. Those letters referred to the allocation of shares. In the letter to Page Equities Mr Xenos wrote:
As you are aware Eagle Wireless is currently an unlisted public company, which on approval and acceptance of the prospectus is expected to list within 18 months. A share certificate will be issued on release of the prospectus document.
I confirm that any associated risks have been discussed and understood.
23 He wrote in similar terms to Coinopexpress.com.
24 Mr Josifovski paid Page Equities $15,000 and $20,000 in May and July 2002.
25 Mr Page said Mr Xenos told him at the end of 2002 that a liquidator was appointed to Eagle Wireless and that he was bankrupt. As a consequence Eagle Wireless was never publicly listed and Page Equities received no documents relating to its shareholding. Mr Page told Mr Josifovski that the company failed and that it would cost more than it was worth to take recovery action.
26 Mr Josifovski denied that he ever discussed an investment in Eagle Wireless. He said he spoke with Mr Page about Eagle NT. He understood this company was in the business of information technology. Mr Page said he knew nothing of a company named Eagle NT.
27 Mr Josifovski said he was told that Eagle NT would be listed publicly within a few months. He understood that the money he provided to Mr Page was to be applied to which ever of the companies, Eagle NT, Rip Curl or Benchmark was first to be listed. Mr Page had his authority to invest the money in any one of these three companies.
28 Mr Josifovski said he was never told of an intention to float a company named Eagle Wireless. He did not know of a company named Eagle Technology Corporation Limited.
29 He said the first he heard of Eagle Wireless was when documents were discovered in the course of these proceedings. He said he did not know Mr Xenos. He did not meet or speak with him. He did not lunch with him at the Rick Damelian café. He had not heard of him prior to the proceedings. He denied that the word Tim in a file note dated 8 July 2002 referred to Mr Xenos.
30 Mr Josifovski denied that he authorised or directed the placement or transfer of any shares with Coinopexpress.com. He stated that he had no proprietary interest in Coinopexpress.com and that his connection with it was through a trading relationship with the company and its principal, Ms Wong Dan Ho. He admitted that Coinopexpress.com used an internet provider managed by Highway Group. He denied that he told Mr Page that he purchased two units in Hong Kong from which he ran his Hong Kong operations.
31 Ms Wong confirmed that Mr Josifovski held no proprietary interest in Coinopexpress.com. She said she was the owner and director of Coinopexpress.com and that Mr Josifovski and his companies had no interest in the company. She said she established the company in 2001 and that it traded with Mr Josifovski’s companies. She said the address that appeared in the letter from Eagle Wireless Pty Limited on 20 March 2002 was not occupied by Coinopexpress.com until September 2002. She denied that she received this letter or that Coinopexpress.com received or held shares in Eagle Wireless Pty Limited or any similarly named company.
32 She denied having heard of Mr Xenos before she read documents relating to the proceedings.
33 Mr Josifovski confirmed that his Hong Kong based company, Arcade Spare Parts Limited, had its office in Hong Kong in the same building as that occupied by Coinopexpress.com but said it was on the 15th floor and not the 17th floor. This was the address of the Hong Kong accountant for Arcade Spare Parts.
34 A sum of $63,000 was shown in the accounts of Highwaygames.com as a loan from Coinopexpress.com. Mr Josifovski said this was not in fact a loan but an advance payment made by Coinopexpress.com against the work that his company was undertaking to produce software. It was treated as a loan in the accounts of Highwaygames.com until the work involved was carried out and the money could be treated as income. Ms Wong denied that Coinopexpress.com advanced money to Mr Josifovski or Highwaygames.com.
35 Both Mr Josifovski and Ms Wong were challenged concerning the details of ownership of their respective Hong Kong companies. Mr Josifovski said Arcade Spare Parts was initially established with a nominee shareholder and that the shares were transferred to him in February 2010. He produced a copy of an instrument of transferv under which one share was transferred to him by Top Shine Management Limited.
36 Coinopexpress.com was registered in the British Virgin Islands. Ms Wong stated that when she initially established the company she was only 26 years old and that, as a young single woman, she considered it necessary in order to present the company as credit worthy that she appoint her auditor as her nominee as a director. She said she paid a monthly fee to use the auditor’s name. The nominee retired as a director in December 2005 and Ms Wong was appointed a director of Coinopexpress.com. The ownership of the shares in Coinopexpress.com was complex and did not disclose the ultimate shareholder. This was because its ultimate holding company was registered in the British Virgin Islands and was not obliged to make details of its shareholdings public.
37 It was submitted that I should reject the evidence of Mr Josifovski and Ms Wong that there was no proprietary relationship between Highwaygames.com and Coinopexpress.com. The reasons given were:
1 Mr Josifovski belatedly produced a transfer of shares in Arcade Spare Parts, searches of which to that point, revealed no connection between the plaintiff and that company. The problem with this submission was that the issue of the ownership of Arcade Spare Parts was first raised in cross examination of Mr Josifovski, who offered in the course of that cross examination to provide a copy of the share transfer. He did this in his evidence in reply.
2 Arcade Spare Parts and Coinopexpress.com have a trading relationship. They have business operations in Hong Kong and trade in the same industry. I did not accept that this material established that there was more than a trading relationship between the companies.
3 Arcade Spare Parts traded from an office two floors below the Coinopexpress.com office. I did not accept that this material established that there was more than a trading relationship between the companies.
4 There was a trading relationship between the companies. This fact provided no support for the claim of a common ownership.
5 Highwaygames.com and Coinopexpress.com operated in Hong Kong and traded in the same industry. This fact provided no support for the claim of a common ownership.
6 The accounts of Highwaygames.com indicated, contrary to the denials of both Mr Josifovski and Ms Wong, that Coinopexpress.com provided an unsecured loan to Highwaygames.com. Even if Mr Josifovski’s explanation for this perfectly valid accounting treatment of fees paid in advance by Coinopexpress.com was rejected, this fact provided no support for the claim of a common ownership.
7 Highwaygames.com hosted the internet site of Coinopexpress.com. This fact provided no support for the claim of a common ownership.
8 Ms Wong deliberately structured the company to hide her identity as the company’s owner. It was said that her explanation that she did this because she was 26 years old was implausible. I did not accept this proposition. It is well known that discriminatory practices continue to disadvantage young women in commercial settings.
9 Ms Wong did not produce the share register of the British Virgin Islands registered company that would have provided information that Mr Page could not access and would have confirmed her evidence of ownership. I did not accept that this factor transferred to Ms Wong or the plaintiffs the burden of proving the assertions made by Mr Page concerning the ownership of Coinopexpress.com. This was particularly so when I had no reason to doubt that Ms Wong did her best to provide truthful answers to the questions put to her.
10 Ms Wong complained of inconvenience and annoyance at the requirement that she travel to Newcastle to give evidence but nevertheless she did so to assist the plaintiffs. It was said that she was hostile in cross examination, partisan and under the influence of the plaintiffs. Ms Wong did, indeed, complain about the circumstance of being called upon to give evidence. She said it was embarrassing to be required to deal with her business affairs publicly when her only contact with Mr Page was to dine with him on one occasion in the company of Mr Josifovski. There was no evidence that Ms Wong was under any influence from the plaintiffs. I was left with the impression that she was an independent business woman, capable of independent thought and decision making.
11 Ms Wong was mistaken, some 8 years after the loan was taken out, as to the identity of the Bank that provided the mortgage for the units purchased by Coinopexpress.com. This fact provided no support for the claim of a common ownership.
38 The plaintiffs were criticised for failing to produce evidence to establish that they held no interest in Coinopexpress.com. They called Ms Wong who stated, under oath, that she was the proprietor of that company. It was Mr Page’s assertion that the plaintiffs had an interest in Coinopexpress.com. He therefore bore the evidentiary onus of proving the connection. He did not explain how the plaintiffs could be expected to obtain more information concerning the ultimate ownership of Coinopexpress.com than was available to him through his subpoenae.
39 Further, for reasons already noted I found no basis upon which to reject Ms Wong as a witness of credit.
40 As to the discrepancy between Coinopexpress.com’s address in March 2002 and that shown on the letter from Eagle Wireless Pty Limited, it was claimed that the plaintiffs failed to produce documentation that indicated that Ms Wong had any connection with Coinopexpress.com at that time. Aside from the question of evidentiary onus, this was entirely irrelevant to the question of the address of the company. Documents contained in the tender bundlevi recorded that Coinopexpress.com occupied premises at Level 17 of the Skyline Tower from November 2002vii. The notification of the registered office of the company then gave the address as Unit D, 17/F Skyline Tower and not Unit E at that address.
41 As to the credit of Mr Page, the letters allegedly written by Mr Xenos in February 2002 were produced on the letterhead of Eagle Wireless Pty Limited. Obviously that was not a public company, listed or unlisted. The historical organisation extractviii published by ASIC indicated that Mr Xenos was never a director or secretary of Eagle Wireless Pty Limited. Further, that extract provided no information that would suggest that there was any form of relationship or connection between Eagle Wireless Pty Limited and Eagle Wireless Corporation Limited. Eagle Wireless Pty Limited was deregistered on 15 December 2002. Its registered office was recorded at Punchbowl Road, Belmore, NSW, not Bay Street, Brighton, NSW as shown on the letters discovered by Mr Page.
42 I agreed with the plaintiffs’ submission that it was most improbable that Mr Xenos would mistakenly use the letterhead of an entirely unrelated company when issuing letters concerning the allocation of shares in the company for which he was responsible.
43 The historical organisation extractix published by ASIC recorded that Eagle Wireless Corporation Limited changed its name to Eagle Technology Corporation Limited on 5 January 2001. I considered it improbable that the company’s director and secretary would refer to the former name of the company when notifying shareholders of the allocation or transfer of shares.
44 The ASIC extract also recorded that on 1 November 2001 notification was given of an application to wind up the company and that notifications of a winding up order and appointment of a liquidator were given on 19 April 2002. I considered it improbable that a director and secretary of the company would refer to proposals to issue a prospectus with a view to public listing in correspondence dated one month prior to the making of these orders.
45 I find that the evidence established that the documents relating to the allocation of shares in Eagle Wireless Corporation was fabricated.
46 I find that there was no evidence to establish that the sum of $35,000 paid to Page Equities at the direction of Mr Page was used to purchase any shares on behalf of the plaintiffs.
Karl Suleman Enterprizes Pty Limited
47 Mr Josifovski claimed that in November 2002 Highwaygames.com paid Mr Page $50,000 for investment in shares in Rip Curl Pty Limited on the understanding that the shares were to be publicly listed and would increase in value on listing. He claimed that Mr Page told him that he would purchase the shares on his behalf through a friend.
48 Mr Page was highly critical of the way in which this part of the plaintiffs’ claim was presented. This was based on the number of amendments made to their statement of claim. The first version of the statement of claim pleaded that $60,000 was provided for the purchase of shares in publicly listed companies. This was amended to claim that the funds were provided for the purchase of shares in KTM Capital. A further amendment claimed that $50,000 was for the purchase of shares in recently listed public companies and $10,000 for a property development known as Smugglers Cove. The Further Amended Statement of claim filed with leave on 11 March 2010 pleaded that $50,000 was paid to acquire pre-listing shares in Rip Curl. This pleading accorded with the evidence set out in Mr Josifovski’s affidavit.
49 Mr Page said that he invested $63,750 on Mr Josifovski’s behalf, through Coinopexpress.com, in Karl Suleman Enterprizes.
50 His evidence was that early in 2002 he spoke with Mr Michael Whebe, with whom he had prior business dealings, about Karl Suleman Enterprizes. He invested $30,000 by bank cheque on his own behalf. This cheque was not paid to Karl Suleman Enterprizes because he was directed to pay it to another entity whose name he did not remember.
51 He was paid bi-monthly dividends of $2,500 and he invested a further $15,000. He told Mr Josifovski that the return was 100% per annum and Mr Josifovski said wanted to invest in Karl Suleman Enterprizes. Mr Page spoke with Mr Whebe who told him that investment was available in the sum of $63,750.
52 At that time Mr Josifovski did not have funds available. Mr Page therefore arranged for his wife, Fiona, to lend him the money. Mr Josifovski told him to invest the funds in the name of Coinopexpress.com and he sent him details of Coinopexpress.com in the facsimilex that was attached to his affidavit.
53 Mr Whebe directed that the funds be paid to someone named D Fahd. A bank cheque was drawn on 9 August 2002. Mr Page provided a copy of the chequexi and an extractxii from Mrs Page’s bank account that showed an amount of $63,750 was debited to her account on that date.
54 A Financial Investment Agreementxiii was handed to Mr Page on 9 August 2002 naming Karl Suleman Enterprizes Pty Limited as Manager and Coinopexpress.com as investor. Mr Page sent this on to Mr Josifovski.
55 In early November 2002 Mr Josifovski told him that he raised $50,000 and on 8 November 2002 a sum in that amount was paid into Mrs Page’s account. A copy of a credit advicexiv addressed to Mrs Page confirmed payment of $50,000 by Highwaygames.com drawn on HSBC Bank.
56 One to two months after this the bi-monthly payments stopped. Mr Page contacted Mr Whebe who told him that Karl Suleman Enterprizes was in trouble. He passed this information on to Mr Josifovski who was upset and angry.
57 Mr Page said he did not know who Mr Fahd was and he never met him.
58 Mr Josifovski and Ms Wong denied any knowledge of Mr Fahd, Mr Whebe or Karl Suleman Enterprizes. Mr Josifovski said he first heard of an alleged investment on his behalf in the course of discovery in the proceedings. Ms Wong first heard of it in connection with the proceedings.
59 Mr Josifovski denied forwarding details of Coinopexpress.com to Mr Page. He denied that he sent or authorised the sending of the facsimile dated 5 August 2002 to Mr Page or that ever provided details of Coinopexpress.com to Mr Page.
60 Mr Josifovski noted a number of discrepancies in the document produced by Mr Page. He said he had not established the Highway Group at this time and the facsimile header shown on the document was not used prior to 18 July 2003. Further the address stated for Coinopexpress.com was not occupied by it until later in 2002. He produced a telephone account for the telephone number imprinted at the top of the document for the month of August 2002 on which there appeared no record of a facsimile transmission to the fax number 02 8526 0305 stated in the document.
61 Mr Page’s response was that he was unaware when the facsimile came through that Highway Group was not established until 11 months later. He denied he created the document in order to defeat the plaintiffs’ claim.
62 Mr Page agreed that he entered into an agreement similar to that allegedly made out in the name of Coinopexpress.com when he invested in Karl Suleman Enterprizes. He denied that he used this document to produce a version of the agreement in the name of Coinopexpress.com.
63 The discrepancies in the plaintiffs’ statements of claim and particulars concerning the share transactions certainly made it necessary to consider these claims with care. However, regardless of whether the plaintiffs thought they were purchasing shares in post or pre-release shares in Eagle NT, Rip Curl or Benchmark, Mr Page agreed that no funds were applied to the purchase of share in any of these entities. Rather the claims by Mr Page that the funds were invested in Eagle Wireless Corporation and Karl Suleman Enterprizes were obviously falsely supported by fabricated documentation and there was no evidence at all to establish what happened to the funds provided for the shares.
64 I accepted that the late production of the Multelink tax invoicexv might have caused difficulty to Mr Page but I did not consider that this affected my assessment of the credit of Mr Josifovski. Mr Page maintained in the face of evidence to the contrary, that the facsimile from Highwaygames.com of 5 August 2002 was genuine. The Multelink tax invoice merely provided further evidence that the document was a fabrication.
65 I considered Mr Page’s assertion that, through Mrs Page, payment of $63,750 was made to Mr Fahd, a complete stranger, to invest in Karl Suleman Enterprizes was implausible.
66 For the reasons set out in dealing with the Eagle Wireless falsehood, I rejected the Mr Page’s claim that he was directed to place this investment with Coinopexpress.com. I considered the question of the ultimate ownership of Coinopexpress.com to be something of a red herring in circumstances where the documents that purported to engage Coinopexpress.com in transactions with Eagle Wireless and Karl Suleman Enterprizes were so patently fabricated.
67 Mr Whebe was not called to explain the highly implausible circumstance that the investment in Karl Suleman Enterprizes was accepted after a liquidator was appointed or to explain why payment was made to Mr Fahd. I proceeded on the basis that Mr Whebe’s evidence would not have assisted Mr Page.
68 Mr Page presented himself as an experienced and successful share trader and developer. He said he had been investing in property and the stock market since 1998. He took advice on investments from Mr McGrouther and Mr Baker. Although he said that he did not take advice from Mr Whebe, I did not accept that he was unaware that Karl Suleman Enterprizes was placed into liquidation in December 2001 because he rarely read the Financial Review of the business pages of the Sydney Morning Herald and rarely watched television news or listened to radio news.
69 I did not accept that Mr Page continued to receive returns on his own investment in Karl Suleman Enterprizes for some months after a liquidator was appointed to the company. There was no evidence that any such payments were ever received. There was no evidence that any bi-monthly payments were ever received by the plaintiffs or Coinopexpress.com. from this investment.
70 I find that the evidence established that the documents relating to the investment in Karl Suleman Enterprizes were fabricated.
REAL PROPERTY
Smugglers Cove, Forster
71 Mr Josifovski said this proposal was first discussed with Mr Page in March 2003. Mr Page told him that a company called Turrent Pty Limited was undertaking a project at a caravan park at Smugglers Cove, Forster. He told him that Mr McGrouther was involved and that Turrent was buying up caravan parks to redevelop as retirement villages. Mr Page offered to get him some shares in the development.
72 Mr Josifovski said he knew the site of the caravan park well and he relied on his own judgment when he decided to invest. He was to have a one-sixth share in the project. This was subsequently changed to a one-tenth share. Mr Page told him that the site was already purchased.
73 He paid Mr Page $10,000 on 8 April 2003. Mr Josifovski denied having received a letterxvi dated 20 March 2003 from Page Equities enclosing an invoice from Marosszeky architects. He denied that the payment he made was to meet his one-half share of an invoice for $20,000 issued by Mr Marosszeky. He did not know, before the commencement of the proceedings, that Mr Marosszeky had undertaken work on the site or that he inspected it.
74 Mr Josifovski said that Mr Marosszeky told him that he did no work on the Smugglers Cove site, that he had not billed for any work at Smugglers Cove and that he knew nothing of the invoice.
75 Mr Josifovski denied that he discussed any feasibility study with Mr Page. He thought the project had Council approval and was ready to build so that it had gone beyond the feasibility stage.
76 Mr Page said he became aware of the potential development of the Smugglers Cove site in April 2003. At that time it was owned by Turrent Pty Limited, the shareholders in which were Mr McGrouther and Mr Kerrige, the joint proprietors of KTM Capital.
77 Mr Page said that he spoke with Mr Josifovski in April 2003. He told him that Page Equities would pay for a development application that would be submitted if it were established that the development was feasible. Page Equities was to have one-third of the profit if the development proceeded. He suggested that Mr Josifovski pay $10,000 for one-half of the cost of a feasibility study. He agreed.
78 Page Equities then retained Mr Marosszeky to undertake a due diligence study for which he chargedxvii $20,000 plus $2,000 for GST. Mr Marosszeky produced a report that indicated that the development was not feasible. It required a rezoning that the local council would not permit. Mr Page told Mr Josifovski that the development was not proceeding.
79 Asked about the discrepancy between the date of Page Equities’ letter to Mr Josifovski, 20 March 2003, and the date of 22 March 2003 on the facsimile imprint on the Marosszeky invoice, Mr Page said that it was Mr Marosszeky’s practice to provide faxed copies of his invoice when pushing for payment. He also suggested, although he did not remember, that the letter might have been prepared in advance and left to be faxed by office staff.
80 This was not the only discrepancy concerning the date of the Marossezeky invoice. Mr Page said he became aware of the potential development in April 2003, that he spoke with Mr Josifovski about the development in April 2003 and that he retained Mr Marosszeky after Mr Josifovski agreed to share the cost of the feasibility study. The invoice was dated 22 March 2003.
81 He did not know where the originals of the letter and invoice were if they were sent by facsimile. He said they could have been thrown away, although he kept copies of them.
82 The feasibility report allegedly prepared by Mr Marosszeky was not in evidence. Mr Page said he did not keep the report because the proposal at Smugglers Cove did not proceed. He recovered the invoice because it was placed in the file for a development at Cardiff. He did not remember what the report contained, although he insisted there was one.
83 For a fee of $20,000 he expected that Mr Marosszeky would have undertaken a significant amount of work and consulted a town planner. There was no advance agreement concerning the fee. He did not ask Mr Josifovski to pay one-half of the GST because he proposed to claim it back.
84 He denied that he created the invoice in order to defeat the plaintiffs’ claim. He denied that the item relating to fees due at this time appeared to be out of alignment because it had been cut and pasted. He could not explain the use of the code 1.12 rather than that of 1.03 usually applied by Mr Marosszeky to his bills.
85 Mr Marosszeky said he went to Smugglers Cove Caravan park in 2003 and walked over it briefly. He did nothing further in relation to the development. He denied that he performed any due diligence or feasibility study, issued an invoice or received payment from Mr Page or any related entity in relation to Smugglers Cove.
86 He denied that he issued invoices with the suffix 1.12 that appeared on the document produced by Mr Page. The suffix used on his invoices was 1.03. He denied that there was a job number 434.
87 Mr Marosszeky produced a job listxviii on which he recorded numbers for work undertaken between 1985 and 2006. He said that this list confirmed that he at no stage allocated a job number to Smugglers Cove. He agreed that, contrary to the evidence contained in his affidavit, the job list showed that the number 434 was allocated to the William Lyne Hospital Site, a student housing project undertaken for Mr Page and Mr Baker.
88 He agreed that not all job numbers allocated during the 1990’s were consecutive. They were consecutive from 2000 onwards.
89 As to his involvement in Smugglers Cove, Mr Marosszeky said he drove to the site and looked at it. His purpose was to assess its feasibility. This involved three hours of driving time and one-half hour of inspection during which he took a few photographs. He denied that he made a second visit to the site or that he liaised with the local council or town planners or that he spoke to Mr Josifovski about the site.
90 Mr Marosszeky was asked questions concerning other work that he undertook for Mr Page from which it was sought to suggest that he was biased against him. It was suggested that he underestimated the costs of another development to the point where it became non-feasible when the true cost was known but no evidence to support this proposition was provided. He agreed that he invested $60,000 with Mr Page of which he recovered $55,000 after a long period and many threats of legal action. His letterxix of 19 April 2005 related to the recovery of the outstanding $5000.
91 In respect of the invoice dated 17 March 2003, Mr Marosszeky said:
That invoice is a fabrication, a total fabrication. The numbers on the top are false and the section of where it comes from is false. Everything about it is false. xx
92 It was submitted that I should reject Mr Marosszeky’s assertion that the March 2003 invoice was false because:
1 He relied on his memory rather than his files. I found no reason to reject Mr Marosszeky’s evidence as unreliable. I would expect him to remember if he undertook a feasibility study and prepared a report to the value of $20,000 at Smugglers Cove. A considerable amount of work would be involved.
2 His affidavit was served only shortly prior to the hearing so that Mr Page was denied the opportunity to test it against the files of Mr Marosszeky’s architectural business. Mr Page was alerted by the material contained in Mr Josifovski’s affidavit xxi of 24 November 2009 that he claimed that no invoice or feasibility report relating to Smugglers Cove was ever received. He could have taken steps to subpoena the files of Mr Marosszeky had he considered that they would assist him in responding to this assertion.
3 It was claimed that Mr Marosszeky was hopelessly partisan in his evidence. He clearly had little respect for Mr Page. He forthrightly explained that his reason for this animosity was the difficulty he encountered in recovering $55,000 of the $60,000 he gave to Mr Page to invest on his behalf. I took into account the following in deciding that this animosity did not reach the point at which his evidence should be rejected:
(a) Mr Marosszeky vehemently denied that the invoice was genuine.
(b) There was no evidence that $22,000 was ever paid to him or his architectural business by Mr Page or Page Equities.
93 In rejecting the defence to this part of the claim and in preferring the evidence of Mr Josifovski to that of Mr Page I took into account Mr Marosszeky’s evidence and the following:
1 Mr Page produced no feasibility report for Smugglers Cove. It was implausible to suggest that the invoice was retained but the report was discarded.
2 The invoice said to have been issued by him was not the only document allegedly fabricated by Mr Page. It appeared to be but one of a series of such documents.
3 Mr Page stated that this was a venture of Page Equities and that all financial documents concerning that company were passed on to the liquidator. It was not credible to suggest that the one document retained was this particular invoice.
4 The invoice relied on by Mr Page was dated 22 March 2003. His evidence was that he learned of the prospective development at Smugglers Cove in April 2003 and spoke with Mr Josifovski about it in April 2003.
94 I find that the evidence established that the Marosszeky invoice relating to Smugglers Cove was fabricated.
95 I find that Mr Page falsely claimed to have an interest in the Smugglers Cove site and that he falsely claimed that the development was ready to proceed.
South Sydney Hospital
96 Mr Josifovski said that in July 2002 Mr Page told him of a proposal to redevelop the South Sydney Hospital site, a development that would cost $160,000,000 to $200,000,000. The developer was the South Sydney Development Group. Mr Page named some of the persons involved in the development and he recognised some of them as wealthy and high profile developers. Mr Page offered to obtain some shares in the development for him and said he would tell him when money was needed.
97 Mr Josifovski said Mr Page told him that site had been purchased and that everything was under control. He was told that a property trust had been established.
98 In August 2002 they met to view the site. Mr Page said it would be easiest if Mr Josifovski paid accounts as directed. He was introduced to Mr Theo Baker. Shortly after the site inspection Mr Page directed him to make payments to Watson Mangioni, solicitors, who were said to be assisting with the development. Payments were made in August, September and November 2002 totalling $15,000. No invoice or receipt was issued by Watson Mangioni.
99 He received no shares in the development and no formal recognition for his contributions. On recent inquiry he learned that the site was disused and that no firm development proposal was in place.
100 He said that Mr Page told him that Council approval had been given and that negotiations were continuing with the Council for the development of the entire site. He was aware that the approval of the Council would be required for the development of the entire site. He agreed that he had never before been involved in a development of this scale and that his share would have been very small.
101 Asked about the risks of developing such a large site, Mr Josifovski said that he did not consider that there was a risk, particularly since Mr Page told him that it was a goerxxii. He thought that persons named by Mr Page as involved in the development were of such stature that they would undertake market research and calculate the percentages.
102 Mr Page said he learned of a potential redevelopment of the South Sydney Hospital site from Mr Koh, his Sydney architect. He retained Mr Koh to undertake a due diligence study to determine the development cost and land value.
103 He thought the plaintiff might be interested and therefore might help with the cost of the feasibility study in return for a share in the project and introduction to his business contacts.
104 He said he spoke with him in February 2002, told him of the names of persons involved and suggested he pay one-half towards the cost of the feasibility study.
105 After their lunch with Mr Xenos in March 2002, he and Mr Josifovski visited the site and met with Mr Koh. He then formally retained Mr Koh who carried out a due diligence study to determine the feasibility of the development. He paid $30,000 for the study. He was unable to locate a copy of Mr Koh’s report. He subsequently said he threw the report away. He denied that no report was prepared by Mr Koh.
106 At the time Mr Josifovski was unable to pay his one-half share of the cost so Mr Page paid for it himself. He subsequently suggested that to Mr Josifovski that he pay some legal fees that he owed to Watson Mangioni for litigation concerning a property at Killara. Mr Josifovski paid about $15,000. He denied that he told Mr Josifovski that Watson Mangioni were solicitors associated with the South Sydney Hospital development.
107 Mr Page did not claim the cost of the feasibility study as a tax deduction. He said any deduction would have been claimed by Page Equities and, since it was in liquidation, he had no access to its documents.
108 He agreed that the South Sydney Hospital site was massive and that there was no point in pursuing a feasibility study with Mr Josifovski only. He claimed, however, that he had a number of wealthy people behind him. One of them was Mr Baker. Mr Page said he did not proceed with the development because of its huge cost. He agreed that he knew of this cost before he commissioned a feasibility study but said that there were other problems arising out of council amalgamations and politics that made the development too difficult.
109 I considered it implausible that the plaintiffs would make payments to Watson Mangioni when they were entirely unconnected with any development at South Sydney Hospital. For that reason I preferred the evidence of Mr Josifovski that Mr Page told him that the fees related to work undertaken by Watson Mangioni in connection with the South Sydney Hospital development.
110 I did not accept that, having spent $30,000 on a report from Mr Koh, Mr Page disposed of it simply because it was unfavourable. He claimed that through a circuitous process Mr Josifovski funded the report. Mr Josifovski was not shown the report or consulted about abandoning the project.
111 Mr Koh was not called to give evidence in support of this part of the defence. I proceeded on the basis that Mr Koh’s evidence would not assist Mr Page.
112 Mr Page said he continued to have a business relationship with Mr Baker who was in Australia at the time of the hearing. Mr Baker was not called to give evidence in support of this part of the defence. I proceeded on the basis that Mr Baker’s evidence would not assist Mr Page.
113 I find that Mr Page falsely claimed to have an interest in the South Sydney Hospital site and that he falsely claimed that the development was ready to proceed.
Thomas Street, Cardiff
114 Mr Josifovski said in March and April 2003 he discussed with Mr Page a project at Thomas Street, Cardiff that Mr Page said was owned by him and Turrent Pty Limited. Mr Page suggested that to secure a share in the development Mr Josifovski pay for expenses as he had for the South Sydney Hospital development.
115 A number of payments were made by Highwaygames.com for fees of Mr Marosszeky, Palmer Bruyn, surveyors and the local council. Mr Josifovski attended a meeting with Mr Marosszeky in May 2003 and participated at that meeting as a stakeholder.
116 He said he was subsequently excluded from any decision making in the project. His last involvement dealt with the question of whether the site was to be sold at a smaller profit but without further capital outlay or whether it was to be developed.
117 Documentsxxiii attached to Mr Josifovski’s affidavit 7.7.09 attached to Mr Josifovski’s affidavit recorded that the property was listed for sale by expression of interest at a price of $800,000 under an agency agreement dated 3 September 2003. The documents recorded that the agent’s opinion of its value was $700,000. A transferxxiv indicated that the property was transferred to LA Property Nominees Pty Limited by Turrent Pty Limited on 23 October 2006 for the sum of $500,000. The historical extractxxv published by ASIC in respect of LA Property Nominees Pty Limited recorded that the shareholders in that company were Mr Page and Mr Pitsis who held one share each.
118 Mr Josifovski said he received no formal recognition for the payments he made in respect of this site and no proceeds from the sale to LA Property Nominees. He agreed that it was intended that the half shares of himself and Mr Page would be dealt with through a company structure and that they would share equally the profits and losses of the venture. He accepted that he would not expect a return of the money he expended if the property was sold at a loss.
119 Mr Josifovski denied that Mr Page telephoned him to advise him that expenses of the venture were $110,000 and he owed Page Equities about $30,000. He denied that he refused Mr Page’s request that he make further contributions because he was financially constrained, or that he was aggrieved at losing $50,000 in the Karl Suleman Enterprizes investment, the Rip Curl investment or through buying shares. He denied that Mr Page suggested that he would speak to Mr Baker about buying him out of a development at Mayfield or that Mr Page said that he still expected Mr Josifovski to pay him $30,000.
120 Mr Page said that, having spoken to Mr McGrouther, he located the property at Thomas Street, Cardiff and asked Mr Josifovski if he wanted to become involved in the development. He visited the site with the plaintiff.
121 Page Equities paid the deposit of $33,000 and stamp duty of $10,300 in March 2003. Turrent paid the balance of the purchase price of $330,000.
122 In mid to late 2003 Page Equities and Mr Josifovski retained development and planning experts to determine the feasibility of the development and apply for development consent. He met with experts with Mr Josifovski, among them Mr Marosszeky. The development consent was obtained in 2004 or 2005.
123 Mr Marosszeky prepared a reconciliationxxvi totalling $67,000 for experts which together with the deposit and stamp duty amounted to $110,000. He therefore asked Mr Josifovski to pay a further $27,000. Mr Josifovski said he had no money and asked that he paid out of the Cardiff and Mayfield developments when they were sold.
124 Mr Page said he also asked Mr Josifovski to pay him the balance owed for the investment in Karl Suleman Enterprizes. Mr Josifovski responded that he was unhappy with the losses that were incurred and he wanted to be paid $175,000 in return for his share in the investments in Karl Suleman Enterprizes, Mayfield, Eagle Wireless and everything.
125 In response, Mr Page told Mr Josifovski that there were no guarantees of success and he decided to sell the Cardiff property.
126 Mr Page agreed that Mrs Josifovski said she had a buyer for the Cardiff property for $700,000. He told her to send the details to the estate agent but she did not do so. When he reminded her to do this, she said the buyer was no longer interested.
127 The property did not sell and, in order to maintain his relationship with Mr McGrouther and Mr Kerrige, Mr Page decided to buy the property and reimburse them for the money they spent on it. Mr Page said he suggested to Mr Josifovski that he purchase one-half but he declined. He therefore agreed with Mr Pitsis that they would purchase the site together. They proceeded with the purchase through LA Property Nominees for $500,000. This figure was based on the value of the site with the development consent and the cost of interest paid by Turrent on its outlay over three years.
128 The property was still owned by LA Property Nominees and it remained undeveloped.
129 Mr Page claimed that a loss was suffered on the Cardiff development. He produced a list of expensesxxvii said to have been incurred, a number of which were paid for by Mr Josifovski. There was no account of contributions made by the other parties to the proposed development to establish that a loss was in fact incurred or to establish that Mr Josifovski’s loss extended to the full amount that he contributed to the project.
130 There was no evidence to confirm that Mr Page paid the deposit and stamp duty on the purchase of the site by Turrent. If Page Equities was involved and its documents were truly unavailable to Mr Page, proof this contribution would have been a simple matter of calling evidence from his trusted advisor, Mr McGrouther. I proceeded on the basis that his evidence would not assist Mr Page.
131 Further, there was evidence that suggested that Mr Page acquired the property at less than its true value.
132 As with Smugglers Cove and the South Sydney Hospital site, there was no evidence that Mr Page has any interest in the Thomas street site prior to its acquisition by L A Property Nominees. I find that Mr Page falsely claimed to have an interest in the Thomas Street site.
133 I find that in failing to account for the funds provided by Highwaygames.com, Mr Page failed to establish that those funds were lost in the course of the venture and prior to the transfer of the property to LA Property Nominees.
Maitland Road, Mayfield and Waratah
134 No claim was made in these proceedings to recover funds contributed to the development of these properties. The evidence that concerned them was relevant only to the breakdown in the relationship between the parties.
135 Mr Josifovski said that at the suggestion of Mr Page they looked together for a development site in the Newcastle area. He found an old service station site in Maitland Road, Mayfield that was purchased by a partnership formed between himself, Mr Page, Mr Peter Simmons and Mr Baker. The partnership was called the LPST Partnership.
136 The property was purchased for $375,100 with each partner contributing some funds and the balance borrowed. Mr Page ultimately purchased Mr Simmons’ share.
137 Mr Josifovski said that he commenced proceedings in the Supreme Court to dissolve the partnership because he was not satisfied that accounting and other information was fully disclosed to him. He transferred his share in the partnership in 2009 to Mr Baker. No development of the site had been undertaken at that stage.
138 Mr Page said the plaintiff failed to contribute his full share of the capital. There was a decline in the property market and it was decided to sell the Mayfield property. Mr Josifovski would not agree on a sale price. Mr Baker offered to buy him out. They heard nothing further from him until he commenced the Supreme Court proceedings.
139 In March 2003 Mr Josifovski told Mr Page of a property he located on a former hospital site at Waratah. It was purchased in April 2003 for $3,190,000. It was agreed that three partners, Mr Josifovski, Mr Page and Mr Baker would each contribute one-third or $330,000.
140 Mr Page said Mr Josifovski failed to provide the funds he said he would obtain from Hong Kong. He therefore proceeded with the acquisition with Mr Baker.
141 Mr Josifovski disagreed with this version of events. His exclusion from the Waratah development appeared to be the catalyst for Mr Josifovski’s withdrawing from any further business relationship with Mr Page. He said he felt betrayed by the way in which the Waratah property was purchased by Mr Page and Mr Baker and he started to ask questions and to demand the return of his money.
Credit Generally
142 It was argued that Mr Josifovski’s delay in bringing proceedings for recovery of the money paid to Mr Page cast doubt on the validity of the plaintiff’s claims. I was not persuaded that this delay was indicated that the claims were unfounded, particularly in the light of the evidence that he pursued Mr Page over a number of months for repayment and that Mr Page took steps to avoid contact for some time.
143 It was suggested that before accepting the evidence of Mr Josifovski and Ms Wong, which effectively meant that I accepted that there was serious criminal conduct on the part of Mr Page, the plaintiffs were obliged to call evidence from Mr Xenos. It was Mr Page who put forward the letters from Eagle Wireless Pty Limited as documents issued by Mr Xenos and it was for Mr Page to respond to the challenge to their authenticity.
144 Mr Page provided no explanation for not calling Mr Xenos, or his close business associates Mr Baker, Mr McGrouther and Mr Kerrige, persons who might support his defence. I proceeded on the basis that their evidence would not assist him.
145 I did not consider it plausible to claim that documents relating Page Equities were unavailable because they were in the possession of the liquidator. There was no evidence that Mr Page sought and was denied access to them or that attempts to subpoena them were unsuccessful.
146 It was submitted for Mr Page that it was irrelevant that Mr Josifovski was told of a company called Eagle NT rather than Eagle Wireless because he authorised Mr Page to invest $35,000 in any one of the three public listings of Eagle NT, Rip Curl or Benchmark. It was claimed that, having invested $35,000 by purchasing shares in the Eagle float, Mr Page acted within that authority. A further basis for submitting that the name of the company was irrelevant was that no company was ever floated so that the name of that company will never be known. This submission was contrary to the evidence supplied by Mr Page to support his claim that $35,000 was applied to the acquisition of shares in Eagle Wireless Corporation Limited.
147 With respect to Mr Page, these submissions entirely overlooked the evidence that established that he fabricated documents to support his version of events.
148 I rejected Mr Page as a witness of credit. I preferred the evidence of Mr Josifovski in all circumstances where there was a conflict between them.
ISSUE 2 - The nature of the transactions
149 The plaintiffs pleaded that they entered into contracts with Mr Page, that there was a total failure of consideration or alternatively that they were the victims of deceit on the part of Mr Page.
150 The defence claimed transactions in the nature of partnerships. This submission could only have related to the property transactions.
151 The share transactions were clearly undertaken on the basis of an agreement that Mr Page would invest funds provided by the plaintiffs in shares.
152 The only evidence that a formal partnership arrangement was entered into related to the Maitland Road, Mayfield project. This project was not the subject of the current litigation.
153 There was no evidence that any of the other transactions were to be dealt with through a partnership arrangement. Mr Josifovski and Mr Page agreed that it was intended that corporate structures would be established that would reflect their shares in the developments.
154 I find that the property transactions proceeded on a contractual basis the terms being:
1 The plaintiffs were to provide contributions in return for a share of Mr Page’s interest in the proposed developments.
2 The parties were to establish corporate structures through which their shares in the proposed developments would be formalised.
3 The parties were to share the profits or losses of the proposed developments in proportion to their shares.
ISSUE 3 - The parties
155 There was no evidence to support Mr Page’s claim that Page Equities was the contracting party with the plaintiffs in their various transactions. Payments were made to Page Equities at the direction of Mr Page.
156 There was no evidence that Page Equities undertook any function concerning the share or property transactions. No minutes were produced, no accounts or bank statements were provided that allowed the funds provided by Mr Josifovski to be traced. The only evidence was that Mr Josifovski personally or through Highwaygames.com provided funds to Mr Page or as he directed as a consequence of conversations between them.
157 It was clear that Mr Page intermingled his personal affairs with those of Page Equities when it suited him. In the absence of evidence of how payments were treated that confirmed that Page Equities was involved in any of these transactions and in the light of the overall lack of credibility of Mr Page’s evidence, I was not prepared to accept without independent support the claim that Page Equities was the party with which the plaintiffs contracted.
158 I find that their transactions were with Mr Page.
159 I find that Mr Josifovski acted on his own behalf in providing $35,000 for the acquisition of shares.
160 I find that Mr Josifovski acted on behalf of Highwaygames.com in providing $52,521.75 for the three proposed property developments.
161 Mr Josifovski said that $50,000 was provided by Highwaygames.com for Rip Curl shares and that this amount was treated as a loan to him in the accounts of Highwaygames.com as a means of dealing with the absence of an asset to reflect this expenditure. This evidence persuaded me that the contracting party for the Rip Curl share transaction was Highwaygames.com.
ISSUE 4 - The basis for liability
162 I rejected the claims made in the defence that the contracts relating to shares were performed by the acquisition on behalf of Mr Josifovski or Highwaygames.com or Coinopexpress.com of shares in Eagle Wireless Corporation Limited or Karl Suleman Enterprizes.
163 In the absence of evidence that the funds paid to or at the direction of Mr Page were ever applied to the acquisition of any shares of any nature, I find that there was a total failure of consideration on the contracts relating to the share transactions.
164 Mr Josifovski’s evidence that shares in Eagle NT, Rip Curl and Benchmark were discussed was supported by a contemporaneous diary note and I accepted it.
165 There was no evidence that it was proposed that any one of these companies would seek public listing of their shares. There was no evidence to indicate that Mr Page believed at the time of his discussions with Mr Josifovski that any one of these companies would seek public listing of their shares.
166 Mr Page’s capacity for deceit was evident from his proffering of falsified documents to support his defence.
167 I find that the claim of deceit in respect of the share transactions has been made out.
168 Having received funds from the plaintiffs in respect of the proposals for development of the Smugglers Cove, South Sydney Hospital and Thomas Street, Cardiff sites, Mr Page failed to transfer to them any interest in those proposed developments.
169 I find that there was a total failure of consideration on the contracts relating to the property transactions.
170 It follows from my findings that Mr Page falsely claimed that he had interests in the three proposed development projects that I find that the claim of deceit in respect of the property transactions has been made out.
ORDERS
171 Verdict and judgment for Mr Josifovski in the sum of $61,083.68 calculated as follows:
Payments for shares ------------------------- $35,000.00
Interest to 18.8.2010 ------------------------- 26,083.68
$ 61,083.68
172 Verdict and judgment for Highwaygames.com in the sum of $170,485.34 calculated as follows:
Payment for Rip Curl shares ------------------- $50,000.00
Interest to 18.8.2010 --------------------------- 35,696.92
Payment for property transactions -------------- 52,521.75
Interest to 18.8.2010 --------------------------- 32,266.67
$ 170,485.34
173 The defendant is to pay the plaintiffs costs of the proceedings. This order is suspended for seven days to allow either party to list the proceedings for further argument on the issue of costs.
174 The exhibits will be retained for 28 days.
175 My reasons are published.
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i
Annexure E to Mr Josifovski’s affidavit 7.7.09
ii
Affidavit 26.10.09, LJP-1.1
iii
Annexure II to Mr Josifovski’s affidavit 7.7.09
iv
Annexures JJ and KK to Mr Josifovski’s affidavit 7.7.09
v
Exhibit E
vi
Exhibit A
vii
Exhibit A.42
viii
Annexure HH to Mr Josifovski’s affidavit of 7.7.09
ix
Affidavit 26.10.09, LJP-1.1
x
Annexure LL to Mr Josifovski’s affidavit 7.7.09
xi
Affidavit 26.10.09, LJP-1.7
xii
Affidavit 26.10.09, LJP-1.8
xiii
Affidavit of Wong Ho Dan 3.7.09, annexure D
xiv
Affidavit 26.10.09, LJP-1.9
xv
Exhibit D
xvi
Annexure Z to Mr Josifovski’s affidavit 7.7.09
xvii
Affidavit 26.10.09, LJP-1.6
xviii
Exhibit B
xix
Exhibit 1
xx
Transcript, 9.3.10, 38.30
xxi
Paragraphs 15 and 16
xxii
Transcript, 10.3.30, 44.30
xxiii
Annexure BB.79 to Mr Josifovski’s affidavit 7.7.09
xxiv
Annexure FF to Mr Josifovski’s affidavit 7.7.09
xxv
Annexure DD to Mr Josifovski’s affidavit 7.7.09
xxvi
Affidavit 26.10.09, LJP-1.11-12
xxvii
Affidavit 26.10.09, LJP-1.216
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0
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