Lymlind Pty Ltd v Parianos, G.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )        NO. G336 OF 1994
  )
GENERAL DIVISION                 )

BETWEEN: LYMLIND PTY LIMITED
First applicant

ANAGYROS PARIANOS
Second applicant

MARGUERITA PARIANOS
Third applicant

AND: GEORGE PARIANOS
First respondent

SANTANA COFFEE & TEA PTY LIMITED
Second respondent

AND BETWEEN: GEORGE PARIANOS

Cross-claimant

AND:ANAGYROS PARIANOS AND MARGUERITA PARIANOS

Cross-respondents

CORAM: BEAUMONT J

DATE: 10 FEBRUARY 1995

REASONS FOR JUDGMENT

INTRODUCTION

The nature of these proceedings, seeking relief under ss.82 and 87 of the Trade Practices Act 1974 ("the Act") and in the exercise of the Court's accrued jurisdiction, is as follows.

The first applicant, Lymlind Pty Limited ("Lymlind"), has invested in properties in Wollongong city ("the Lymlind Properties"). The second and third applicants, who reside in Zurich, Switzerland, are the registered holders
of all the ordinary shares of Lymlind's capital, except
for two ordinary shares which are held on trust for them by the first respondent. The first respondent, who is the brother of the second applicant, and resident in Wollongong, is a director of Lymlind and of the second respondent, Santana Coffee & Tea Pty Limited ("Santana").

In their application, the applicants claimed damages against the respondents under s.82 of the Act, and further relief as follows: (1) An order that the respondents procure the discharge of mortgages purportedly given to the State Bank of New South Wales ("State Bank") over real property of Lymlind which secured advances to the respondents of more than $3,000,000 (para.2). (2) An order that the respondents procure the release of all guarantees and the equitable charge purportedly given to the State Bank by Lymlind (para.3). (3) A declaration that the first respondent holds two ordinary shares of $1 each in the capital of Lymlind, as to one share each, on bare trust for the second and third applicants (para.5). (4) An order that the first respondent deliver to the applicants a duly executed transfer in favour of each of the second and third applicants in respect of one share of $1 in the capital of Lymlind (para. 6). (5) Judgment for the second and third applicants against the first respondent for the sum of 2,300,000 Swiss francs ("CHF") plus interest (paras.7-8). (6) In the alternative to (5) above, a declaration that the first respondent holds the property, known as 83 Crown Street, Wollongong ("83 Crown Street"), on trust for Lymlind (para.9). (7) An order that the first respondent deliver up, and give vacant possession, of all Lymlind Properties (para.10). (8) An order that accounts be taken between Lymlind and the first respondent, including an account for all income derived by him in respect of 83 Crown Street (para.11). (9) An order that the first respondent deliver up to Lymlind all Lymlind's records retained by the first respondent including, but not limited to, its Minute Book (para.14).

As will appear, not all of these claims are now pressed and some are not resisted.

THE ISSUES ARISING ON THE PLEADINGS
An outline of the claims made by the applicants (in their amended statement of claim) and by the first respondent (in his amended cross-claim) respectively is as follows:

(a)The claims made in the amended statement of claim

The essential allegations in the statement of claim [with the respondents' defences to those allegations noted in brackets] may be summarised as follows:

(1) Lymlind purchased the Lymlind Properties for amounts exceeding $2,750,000. [The respondents claimed that the purchase prices totalled $2,640,000; the difference is explained by the fact that the applicants included all acquisition costs, e.g. stamp duty, in their figure of $2,750,000]. The second and third applicants were at all times beneficially entitled to all the issued capital of Lymlind and were the registered holders of all of the ordinary shares in Lymlind's capital, except for the two ordinary shares held on trust for them by the first respondent. They also made funds directly available to Lymlind in amounts exceeding $3,000,000 by way of loans (paras.2-4). [The respondents, however, claimed that the amount advanced to Lymlind by the second and third applicants was $2,000,000.]

(2) On several occasions, between December 1987 and March 1993, the first respondent represented to the second and third applicants that Australian law required a company incorporated in Australia with non-resident shareholders to comply with certain residency conditions with respect to directors and shareholders before the company could own real property in Australia. In reliance on those representations, the second and third applicants agreed: (a) that the directors of Lymlind would be the second applicant, the first respondent, and Mrs Frieda Hoefler, the first respondent's de facto wife; and (b) that Lymlind would allot to the first respondent and Mrs Hoefler one ordinary share each in the issued capital of Lymlind, constituting 50% of the increased issued capital. The applicants further allege that, although the shares issued to the first respondent and Mrs Hoefler were held on trust for the second and third applicants, the first respondent caused the statutory returns of Lymlind to show him and Mrs Hoefler as holding the shares beneficially; by so doing, the first respondent falsely represented that he had a beneficial interest in Lymlind and that board meetings could be held in the absence of the second and third applicants (paras.7.2-7.6). [The respondents denied all of these allegations except that they admit: (b) that Adrian Scott, an accountant retained by the first respondent, sent a letter dated 25 November 1988 to the second applicant containing advice as to shareholders' and directors' residency requirements; and (2) that the second applicant, the first respondent and Mrs Hoefler were the directors of Lymlind.]

(3) In March 1991, the first respondent represented to the second and third applicants that he had lodged the title documents of the Lymlind Properties with the State Bank for safekeeping. [The respondents denied this allegation.] In December 1988, September 1991 and June 1992, without the knowledge of the second and third applicants [the respondents denied that this was without their knowledge], the first respondent, for himself and on behalf of Santana, represented to the State Bank that he was authorised to pledge the Lymlind Properties as security for loans to himself and Santana. By letters dated 20 December 1988 and 16 January 1989, the State Bank offered to lend $1,100,000 and $1,000,000, respectively, to Santana and the first respondent on the terms, inter alia, that the State Bank be given registered first mortgages over certain of the Lymlind Properties. [The respondents deny these allegations insofar as they relate to Santana.] The first respondent and Santana subsequently accepted those offers, and the first respondent caused the common seal of Lymlind to be affixed to documents purportedly granting those mortgages to the State Bank. [The respondents admitted only that the State Bank advanced $1,100,000 to the first respondent; that the first respondent accepted an additional offer from the State Bank; and that the first respondent caused the common seal of Lymlind to be affixed to several specific mortgages.] Further, on 5 June 1992, the first respondent caused the common seal of Lymlind to be affixed to documents purportedly granting to the State Bank a fixed and floating charge over the assets of Lymlind Properties (sc. Lymlind) and purportedly guaranteeing the liabilities of the respondents to the State Bank jointly and severally with his wife, Isabella Parianos (paras.8-17). [The respondents admitted only that the first respondent caused the common seal of Lymlind to be affixed to a specific charge.]

(4) Prior to May 1993, the State Bank did not make a demand on Lymlind for repayment of the moneys advanced to the respondents. In May 1993, Lymlind requested that the State Bank discharge the mortgages over the Lymlind Properties; but the State Bank refused to discharge the mortgages unless the applicants made substantial payments. By letter dated 17 May 1994, the State Bank demanded, as a condition of the release of any of the Lymlind Properties, that it be paid the whole of the proceeds of the sale thereof. The State Bank claimed to be owed in excess of $3,000,000 in respect of the mortgages over the Lymlind Properties (paras.18-21). [The respondents admitted all of these allegations except that they said that other securities provided by them also support the amount claimed by the State Bank.]

(5) As a result of the foregoing and the fact that none of the applicants derived any benefit from the transactions between the State Bank and the respondents, the applicants alleged that the respondents have engaged in conduct which was misleading or deceptive or which was likely to mislead or deceive, and the applicants have suffered loss and damage as a result (paras.23-26). [The respondents denied these allegations.]

(6) Further, at all material times, the first respondent collected rent in respect of the Lymlind Properties and converted those moneys for his own use and the use of Santana; as a result, the first respondent breached his fiduciary duty to the applicants, and they suffered loss and damage (paras.27-30). [The respondents denied all these allegations except that they said that rents were collected in part by the first respondent and in part by a managing agent who forwarded the cheques and statements to the first respondent.]
(7) The first respondent spent money in the discharge of Lymlind's liabilities (para.31). [This is common ground.]

(8) During 1989 and 1992, the first respondent made several proposals to the board of Lymlind: (a) that it purchase a property located at 120 Corrimal Street, Wollongong ("120 Corrimal Street"); (b) that the Lymlind Properties be submitted to auction; and (c) that other moneys be expended in renovating the Lymlind Properties. [The respondents denied these allegations but admitted that the first respondent proposed to the second applicant that moneys be expended to renovate 55 Crown Street, Wollongong ("55 Crown Street").] Despite the board's rejection of those proposals, the first respondent made the expenditures proposed without any benefit to Lymlind; in particular, he alleged that he paid $1,000 as earnest money in relation to the purchase of 120 Corrimal Street. [The respondents denied these allegations but admitted that the first respondent expended moneys in (1) obtaining for Lymlind conditional contracts for the purchase of 120 and 122 Corrimal Street; (2) submitting Lymlind Properties to auction; and (3) renovating 55 Crown Street.] Lymlind was unable to complete the purchase, and was forced to forfeit the earnest money and incur legal fees (paras.32-33).

(9) In May 1991, the first respondent, without the knowledge of the first and second applicants [the respondents denied that this was without their knowledge], caused bank overdrafts to be opened with the Commonwealth Bank of Australia in the names of Lymlind and Santana. The first respondent solely operated the Lymlind account. In 1993, the applicants discovered the existence of the account, and the first respondent told them that he had given a mortgage over one of his own properties, located at 63 Alexandra Street, Drummoyne, as security for the overdraft. The first respondent drew money from the Lymlind account partly in payment of moneys due to Lymlind and partly in payment of moneys due by the respondents (para.34).

(10) In May 1989, the second and third applicants transferred CHF2,300,000 to the first respondent to be paid to Lymlind. Lymlind was to use CHF1,000,000 to repay the moneys advanced by the first respondent and was to use the balance of the funds to purchase 83 Crown Street. The first respondent breached his fiduciary duty by failing to account to Lymlind for the moneys and by using the funds to purchase two properties, 83 Crown Street and 14 Clovelly Road, Clovelly, in his own name (paras.36-37, 42-43). [The respondents deny the allegations in the above paragraph, except they admit that CHF2,300,000 were transferred to the first respondent, and the first respondent applied certain funds obtained from the second and third applicants to purchase the two specified properties.]

(11) In May 1991, the second and third applicants and the first respondent made an agreement, executed in Bali ("the Bali deed"), to the effect that the amount of CHF1,300,000 would be treated as a loan from the second and third applicants to the first respondent. [The respondents admitted that the Bali deed was executed, but deny that it represented the true agreement between the parties.] The second and third applicants made a demand for repayment of the loan plus interest; the first respondent refused to make any principal or interest payments. [The respondents said that, by a collateral agreement between the second applicant and first respondent, the parties agreed that interest would not be payable pursuant to the Bali deed.] Such refusals constituted a repudiatory breach of the Bali deed, entitling the applicants to treat the agreement as terminated or to enforce the provisions of the Bali deed. It was further agreed that the first respondent would cause the accounts of Lymlind to be amended to show the payment of CHF1,000,000 as being made to Lymlind to discharge all liabilities to the first respondent as at the date of its receipt; in repudiatory breach of this agreement, the first respondent failed to cause the accounts to be so amended, and the first and second applicants treated the breach as terminating the agreement (paras.39-43). [Except as noted above, the respondents denied all these allegations.]

(b) The amended cross-claim
In relation to the Bali deed, the first respondent, as cross-claimant, alleged, inter alia, that the second applicant, the first cross-respondent, made certain false representations to him, orally, in contravention of s.42 of the Fair Trading Act 1987 (NSW) or that there was a collateral agreement, to the effect that, notwithstanding the provisions of the Bali deed, the applicants would not claim interest from the first respondent and would not press him for repayment of the principal (paras.2-7).

The cross-claimant claimed orders (1) that the Bali deed should be set aside or rescinded in equity for misrepresentation; (2) that the deed should not be enforced pursuant to s.72 of the Fair Trading Act; (3) that the contract should be declared void; and (4) damages.

The cross-respondents denied all of these allegations.

THE TAKING OF ACCOUNTS BY REGISTRAR HOWARD
Before the trial, at a directions hearing held on 16 June 1994, an order was made, by consent, for the taking of accounts by the Registrar. A copy of the accounts taken and certified by Registrar Howard are Ex. 34. In the absence of any serious challenge to the Registrar's findings, which are summarised at page twelve of his report, they should be accepted.

THE APPLICANTS' CASE, AS OPENED
The case sought to be made by the applicants was opened by their counsel as follows:

(1) The first respondent invited the second and third applicants to invest in real estate in Wollongong. The offer was accepted and the parties agreed to acquire a local Australian company to effect those investments. In late 1987, the first respondent arranged the acquisition of the shares in a shelf company, Lymlind, the subscribers' shares being transferred to the second and third applicants. Acting upon the first respondent's representation that Lymlind must have a majority of directors and at least one half beneficial shareholding held by Australian residents, the second applicant, the first respondent and Mrs Hoefler were appointed directors of Lymlind on 1 December 1987. In January 1988, two additional shares were alloted, one each to the first respondent and Mrs Hoefler; Mrs Hoefler's share was later transferred to the first respondent. After Mrs Hoefler's death on 12 November 1992, Karl Hoefler was appointed a director of Lymlind. In 1993, he was replaced by Lexie Watt, who in October 1993 was replaced by the third applicant.

(2) At about the same time as the acquisition of the Lymlind shares, Lymlind acquired 55 Crown Street, which was located between two other similar buildings owned by the first respondent. Between late 1987 and 1989, the second and third applicants transferred funds to the first respondent's account to enable Lymlind to purchase additional properties in the central business district of Wollongong as follows:

DateDate

23/12/87
21/12/88
21/12/88
21/12/88
7/4/89
15/2/89 [sic]
15/2/89
7/4/89

Address

55 Crown Street
112 Corrimal Street
114 Corrimal Street
116 Corrimal Street
118 Corrimal Street
19 Market Street
21 Market Street
Lots 1 in DPs 58423 and 788074 Moore Lane

Purchase Price
$300,000
$230,000
$400,000
$350,000
$200,000
$400,000
$360,000

$400,000

----------
$2,640,000
==========

Acquisition
Cost
$313,257
$239,745
$421,509
$367,256
$206,282
$418,940
$376,552

$417,454

----------
$2,760,995
==========

(3) Various registered mortgages were given to the State Bank over the Lymlind Properties, in addition to a guarantee and a fixed and floating charge over the whole of Lymlind's assets to support the borrowings of the respondents. Those securities are collateral to mortgages held by the State Bank over property of the respondents. Indebtedness of the respondents to the State Bank at the time of institution of the proceedings totalled approximately $2.6 million. The mortgages, the guarantee and the charge were made without their knowledge or consent, and therefore constituted a breach of the first respondent's fiduciary duty. The second respondent, which was the trustee of a family trust of the first respondent, knowingly participated in the first respondent's breach of trust.

(4) By express oral agreement made in March 1989, the applicants and the first respondents agreed that CHF1,000,000 would be sufficient to cover all the purchases and expenses of Lymlind as of that date. Pursuant to this agreement, the second and third applicants were to transfer funds to the first respondent, to be applied by him on behalf of Lymlind. Of the total of CHF1,000,000, CHF50,000 was to be paid to the first respondent for his efforts, and the remainder was to be used to purchase additional properties and to fund Lymlind's expenses. The applicants and the first respondent also agreed orally that the first respondent would seek to purchase 83 Crown Street at auction, in the name of Lymlind. Pursuant to these agreements, the applicants transferred CHF2,300,000 to the first respondent - (a) CHF1,300,000 for the purchase of 83 Crown Street and (b) CHF1,000,000 pursuant to the March 1989 agreement. With respect to the sum of CHF1,000,000, the first respondent caused Lymlind's books of account to continue to show him as a creditor and thus not to reflect the true position, that is, that he had been paid by the second and third applicants on behalf of Lymlind.

(5) The first respondent subsequently purchased 83 Crown Street at auction in his own name. The deposit moneys were drawn from Lymlind's account. The first respondent held his right, title and interest in 83 Crown Street on trust for Lymlind and therefore became liable to account to Lymlind for all profit and rents derived by him in relation to that property.
(6) In April 1991, the second and third applicants and the first respondent executed the Bali deed, which provided that the first respondent would be liable to repay CHF1,300,000, on three months' notice, with interest payable from time to time at rates charged by the Swiss Banks to the second and third applicants. The first respondent refused to repay the loan and interest, despite demands by the applicants.

(Without attempting here a statement of the respondents' case, it may be noted that many of the primary facts relied on by the applicants are not seriously disputed by the respondents. For instance, the respondents accept that the second and third applicants have always been entitled to the beneficial ownership of the shares in Lymlind. Nor, apart from 83 Crown Street, do the respondents dispute that Lymlind is the beneficial owner of the properties in question and the respondents accept that those properties were acquired, ultimately, by funds remitted by the second and third applicants to the first respondent, who from time to time provided Lymlind with some bridging finance for this purpose. But the first respondent claims the beneficial ownership of 83 Crown Street and in his cross-claim, as has been noted, he seeks to have the Bali deed set aside.)

THE MARKET AND CORRIMAL STREET PROPERTIES
In order to understand the location and some other details concerning the Market and Corrimal Street properties mentioned above, reference should be made to Ex. E as follows:

THE APPLICANTS' VERSION OF EVENTS AS DISCLOSED IN THE EVIDENCE THEY RELY UPON FOR THIS PURPOSE

As can be seen from the opening, not all the claims made in the statement of claim are now pursued. In some cases, it is no longer necessary to do so, although these claims may be relevant to other issues, e.g. costs.

With respect to the principal claims now pursued, the version of events in the evidence relied on by the applicants (some of which is not disputed), is, in outline, as follows:

(1) In May 1987, the owners of the property, 55 Crown Street, offered it for sale to the first respondent, who took a six months' option to purchase. The first respondent did not have "ready funds" to take up the option, but around October 1987 approached the second applicant about the property. The second applicant indicated to the first respondent that he was willing to purchase the property for $300,000 through a company in which the second and third applicants were shareholders. (See Ex. F, letter dated 22 December 1987 written by Mr. Scott to the Foreign Investment Review Board.)

(2) On 30 November 1987, the second and third applicants transferred CHF30,000 to the first respondent to be applied in payment of the deposit for 55 Crown Street (see Ex.A(1)).

(3) In December 1987, the first respondent arranged the
acquisition of Lymlind, as a shelf company, by the second and third applicants (see Ex. A (5) - letter from Mr. Scott dated 3 December 1987, p.1).

(4) On 1 December 1987, the second applicant, the first respondent and Mrs. Hoefler were appointed directors of Lymlind (see Ex.A(5)).

(5) In December 1987, contracts were exchanged for the purchase by Lymlind of 55 Crown Street; the deposit was then paid. (This is common ground.)

(6) On 10 December 1987, the second and third applicants transferred $270,000 (CHF255,744) to the first respondent being the balance purchase price for 55 Crown Street (See Ex.A(1)).

(7) On 22 January 1988, a share in the capital of Lymlind was allotted to each of the first respondent and Mrs. Hoefler. (This is common ground.)

(8) On 29 January 1988, the purchase of Crown Street was completed (see Ex.A(5) - letter from Mr. Scott dated 12 April 1990, p.2).

(9) In late 1988, the second applicant and the first respondent discussed a proposal that Lymlind acquire, with
funds provided by the second and third applicants, the Market and Corrimal Street properties. Contracts were exchanged for these properties in November and December 1988. (This is common ground.) Deposits were paid as follows (see Ex.A(5) - enclosure with Mr. Scott's letter dated 12 April 1990):

19 Market Street, Wollongong - a deposit of $40,000 (purchase price $400,000) was paid on 20 December 1988.

21 Market Street, Wollongong - a deposit of $36,000 (purchase price $400,000) was paid on 20 December 1988.

112 Corrimal Street - a deposit of $25,000 (purchase price $230,000) was paid on 2 November 1988.

114 Corrimal Street - a deposit of $40,000 (purchase price $400,000) was paid on 2 November 1988.

116 Corrimal Street - a deposit of $35,000 (purchase price $350,000) was paid on 2 November 1988.

118 Corrimal Street - a deposit of $20,000 (purchase price $200,000) was paid on 28 November 1988.

Moore Lane - a deposit of $40,000 (purchase price $400,000) was paid on 28 November 1988.

(10) On 2 November 1988, the second and third applicants transferred $150,000 (CHF187,500) in CHF to the first respondent on account of the acquisition of the Market Street

and Corrimal Street properties. (This is common ground but it should also be noted here that the total cost of acquisition of these properties far exceeded this amount (see below) and it is the respondents' case that when Lymlind had insufficient funds to proceed to complete these acquisitions, the first respondent provided it with finance. It is his case that his "top ups" exceeded $50,000 between 2 and 12 December 1988, exceeded $50,000 in January 1989 and exceeded $100,000 between 14 February 1989 and 17 April 1989; and that on 17 April 1989, the "top-ups" exceeded $650,000, although on 25 May 1989, as will be seen, the second and third applicants transferred 2.3 million CHF to the first respondent.)

(11) On 13 December 1988, the second and third applicants transferred $1,345,681 (CHF1,700,000) to the first respondent to be used to complete the acquisition of the Market Street and Corrimal Street properties. (This is common ground.)

(12) In December 1988, the first respondent applied to the State Bank for, and by letter dated 20 December 1988 (Ex. B(2)) was offered, a loan of $1,100,000 on the condition that the security be provided for the loan as follows (p.3):

"The security required by the Bank is to be to the Bank's satisfaction and will comprise:

Charge Over Swiss Franc Demand Deposit Account with State Bank of SFR 1,400,000 in the name of George Parianos.
Unregistered first mortgage over 4 blocks of land situated on the corner of Market and Corrimal Streets Wollongong. [Emphasis added]

Included in this approval is a substitution of security option whereby the abovementioned security may be released upon the execution of registered first mortgages over the following properties:-

Land and commercial premises situated at 77 Crown Street, Wollongong.
Land and commercial premises situated at 87 Crown Street, Wollongong.
Land and commercial premises situated at 53 Crown Street, Wollongong.
Land and commercial premises situated at 47 Crown Street, Wollongong.
Land and dwelling in Drummoyne.
Land and dwelling situated at 44 Campbell Street, Wollongong."

(It is common ground that properties 1 - 6 above were beneficially owned by the first respondent.)

(13) On 20 December 1988, the first respondent and Mrs. Hoefler attested the affixation of the common seal of Lymlind to a mortgage by it in favour of the State Bank over the four Market Street and Corrimal Street properties to secure advances to the first respondent as the Bank's customer (Ex.B(3)).

(14) On 20 December 1988, the balance purchase price was paid for 19 Market Street and 112-116 Corrimal Street. The total of the prices was $1,380,000, with a total outlay of $1,447,450. (See Ex. A(5) - enclosure with Mr. Scott's letter dated 12 April 1990, p.2 - 3.)

(15) By letter dated 16 January 1989 (Ex. B(4)), the State Bank approved "a No. 2 Fixed Rate" term loan of $1,000,000
upon condition that security be provided as follows (p.3):

"The security required by the Bank is to be to the Bank's satisfaction and will comprise:

Existing Charge Over Swiss Franc Demand Deposit Account with State Bank of CHF 1,400,000 in the name of George Parianos.
Existing Unregistered first mortgage over 4 blocks of land situated on the corner of Market and Corrimal Streets Wollongong.
[Emphasis added]
Unregistered first mortgage over the following blocks of land:
i)21 Market Street, Wollongong
ii)Lot 1 Corrimal Street, Wollongong
iii)Moore Lane, Wollongong [Emphasis added]

Charge over Term Deposit of at least $20,000. Included in this approval is a substitution of security option whereby the abovementioned securities 1, 2 and 3 may be released upon the execution of registered first mortgages over the following properties:

Land and commercial premises situated at 77 Crown Street, Wollongong.
Land and commercial premises situated at 87 Crown Street, Wollongong.
Land and commercial premises situated at 53 Crown Street, Wollongong.
Land and commercial premises situated at 57 Crown Street, Wollongong.
Land and dwelling at 63 Alexandra Street, Drummoyne.
Land and dwelling situated at 44 Campbell Street, Wollongong."

(16) On 2 February 1989, the second and third applicants transferred $260,000 (CHF366,990) to the first respondent.

(17) The second and third applicants visited Australia in early 1989.

(18) On 14 February 1989, the balance purchase price was paid
on the acquisition of 21 Market Street (Ex. A(5) - enclosure with Mr.Scott's letter dated 12 April 1990, p.2).

(19) In March 1989, a discussion took place in Wollongong between the second applicant and the first respondent, in the presence of the third applicant in which the first respondent advised the second applicant to buy 83 Crown Street at auction at an anticipated price of around $900,000 to $950,000 or between 1.2 million or 1.3 million CHF [T.(D) p.37]. The state of accounts between the parties was also discussed. The second applicant said that he had made a provisional calculation that he owed the first respondent around $600,000 to $670,000 or 900,000 to 950,000 CHF which the second applicant said he would "round ... up to 1 million Swiss francs in order to pay him for his efforts in relation to the purchase as well" (T (D) p.38). The second applicant then "... promised that as soon as I was back in Switzerland I would send him a total of 2.3 million Swiss francs, 1 million for paying back the debt and 1.3 million to purchase 83 Crown Street." (T (D) p.39).

(20) On 7 April 1989, the balance purchase price was paid for the acquisition of 118 Corrimal Street and the Moore Lane properties (see Ex. A(5), enclosure with Mr. Scott's letter dated 12 April 1990, p.4).

(21) In March or April 1989, upon the return of the second and third applicants to Switzerland, the first respondent sent over an advertisement for the auction of Crown Street on 10 May 1989 (Ex. D). Several Commonwealth Bank properties were to be auctioned on a "sale and leaseback" basis. The properties included the following:

"Clovelly
214 Clovelly Road

Net income $57,000 p.a.

Wollongong

Town Hall, 83 Crown Street

Net income $82,800 p.a."

(22) In a telephone conversation with the second applicant in early May 1989, the first respondent mentioned the proposed auction of 83 Crown Street. In another conversation after the auction, the first respondent said that he "was able to get" the property for a price of $1,040,000 and said that he "need[ed] the money for the payment of the remainder". The second applicant said that it would be received "very soon". (T.(D) 41)

(23) On 25 May 1989, the second and third applicants transferred CHF2,300,000 to the first respondent. (This is common ground.)

(24) At about this time, the second and third applicants and the first respondent signed an informal document in German, dated 20 May 1989 (referred to as the "German loan agreement"), (Ex. A(3)) which has been translated as follows:

"LOAN AGREEMENT

between Anarghyros and Margrit Parianos,

Freudenbergstr. 105

8044 Zurich/Switzerland and
George Parianos, 53 Crown St., Wollongong/Australia

By means of increasing existing mortgages over our real estate properties Pflanzschulstr. 58,8004 Zurich, Aemtlerstr. 154,8003 Zurich, and Wolfbachstr. 39,8032 Zurich, as well as Freudenbergstr. 105, 8044 Zurich,

we, A. and M. Parianos, have transferred to George Parianos

SFr. 2,300,000 as a loan.

The increase of the mortgages was effected through the Swiss Bank Corporation branch at Hottingen, Zurich.

Mr George Parianos is under the obligation to remit to us the respective mortgage interest by the end of June and the end of December."

(25) The second applicant did not find out that the title to 83 Crown Street was registered in the name of the first respondent until 1991 (T (D) p.42).

THE RESPONDENTS' VERSION OF EVENTS
The respondents' version of the events is different in material respects from the applicants', although there is a measure of common ground in respect of the transactions that were in fact entered into. The respondents' version is contained principally in the first respondent's statement (Ex. 3) which, in outline, is as follows:

(1) In late 1988, he received CHF1,700,000 from the second applicant in relation to the proposed purchase of 19 Market Street and 112-116 Corrimal Street, owned by Mr. Coutas. (The total acquisition cost of these properties was $1,447,450.) He telephoned the second applicant and informed him, in Greek, that he had received the money. He said that he could borrow $1,100,000 from the State Bank to settle Coutas and leave CHF1,400,000 at the Bank which he could then use for payments to the Bank of Singapore (see (6) below) and for Lymlind's future payments on the properties. He added: "The Bank needs a mortgage over the properties as security. You know I've already paid out money for Lymlind". The second applicant said: "Do it". The first respondent went ahead and executed the mortgage to the Bank, which advanced him $1,100,000. The Coutas purchases proceeded, using the Bank loan "as well as part of the balance of the funds transferred by my brother to Australia". He then "arranged a development application/approval for the site comprising the properties acquired by Lymlind ... and other property owned by others for an 18 storey building, consisting of apartments and an hotel" (see Ex. 3, paras. 1-6).

In February 1989, when the second applicant was visiting Australia, he came and spoke to the first respondent in his Wollongong shop. The second applicant said: "We should close the money market account ... sign this [authority]". The first respondent later received a bank statement (Ex. GPX 1) showing that the account had been closed in February 1989 (see Ex. 3).

(3) In February and March 1989, the second applicant and first respondent discussed a proposal to enter into a contract, conditional upon the grant of development approval, to acquire 120-2 Corrimal Street from Bill Morris Pty. Limited for a price of $1,300,000. The second applicant said: "We'll buy it. When I go back to Switzerland, I'll send you the money" (see Ex. 3 paras. 13-16).

(4) In March 1989, before he left Australia, the first respondent and the second applicant had the following conversation:

"[Second applicant] `I've been through the books. I owe you about $950,000. I will go back to Switzerland and send you $1 million to pay you for all you've put in and an extra $1,300,000 to buy Geoff out.'

[First respondent] `Just pay what you owe. You don't have to pay me $1 million.'

[Second applicant] `I owe you $950,000 but I will send you $1 million.'

[First respondent] `If you owe me $950,000 pay me $950,000. You don't have to pay me extra.'

[Second applicant] `I'll give you $1 million because you have worked as well and I'll send you $1.3 million on top towards the purchase of Geoff's property so you don't have to spend any more money from your pocket.'"

On 25 May 1989, the first respondent received a transfer of CHF2,300,000. (See Ex. 3 paras. 17-8.)

(It may be noted at this stage that, as previously mentioned, the accounts between the parties, including payments claimed to have been made by the first respondent on behalf of Lymlind up to 25 May 1989, were dealt with by Registrar Howard in his report dated 22 December 1994, Ex. 34.
(5) Late in 1989, the first respondent informed the second applicant that the owner of 120-2 Corrimal Street was prepared, in return for an option fee of $1,000, to grant an option to purchase at a price of $1,300,000. The second applicant said: "Go ahead". A conditional contract was executed, dated 13 December 1989, providing for a deposit of (a) $1,000 payable on exchange and (b) a further sum of $129,000 payable on 1 July 1992 or, if earlier, on completion. The first respondent paid the sum of $1,000, together with the stamp duty payable on the contract. The contract was conditional upon the grant of development consent, which was granted in July 1990. The consent was conditional upon the inclusion of 120-2 Corrimal Street in the development site (see Ex. 3 paras. 21-5).

(6) In December 1988, the first respondent arranged (see (1) above) with the Bank of Singapore that when he was able to discharge the mortgages to that Bank over his own real property, he could substitute his property as security for the borrowings from the State Bank. In the events that happened, the first respondent used more than CHF1,000,000 (of the CHF 1,400,000) to pay off Lymlind's liabilities in April 1989. (It will be recalled that between February and April 1989, the purchases of 21 Market Street, 118 Corrimal Streets and 2 Moore Lane were completed.) On 1 March 1989, the first respondent arranged with the State Bank "to change" CHF1,000,000 to Australian dollars. (See Ex. 3 paras. 26-9). The arrangement was evidenced by the Bank's letter to the first respondent dated 3 March 1989 (Ex. GPX 6) as follows:

"Dear Mr Parianos

RE:SWISS FRANC BANK ACCOUNT

As requested, the sum of SW FR 1,000,000 has been withdrawn from your Swiss Franc Account and converted to Australian currency as at exchange rate of SFR 1.25 to A$1.

Proceeds of A$800,000 have been dispursed [sic]
as follows:-

A)Transfer to part adjust overdrawn cheque account
LYMLIND PTY LTD - $117,627-97
[in handwriting `Deposited 2/3/89']

B)Balance lodged on Term Deposit
for 14 days as at 16.3% p.a. in
name of LYMLIND PTY LTD - $682,372-03

$800,000-00

Our letter of 30 December 1988 advised that $30,651-57 residue funds remained after the transfer of SW Francs 1,611,174-75 from the Commonwealth Bank to this Bank (copy of letter attached).

As instructed, these funds have now been dispursed [sic] as follows:-

A)To cover fees etc. in respect to your fixed Term Loan.

Loan Appreciation Fee -          $5,000-00
Loan Settlement Costs -          $   80-00
Production costs for stamping at Stamp Duties Office and registering documents with Registrar General -             $ 140-00

Registrar General's fees - )           336-00
(Discharge of 4 mortgages   )
and 4 transfers            )

Loan Security Duty - $4,355-50
(Government Stamp duty on

Bank's mortgages)

$9,911-50

Adjust overdrawn balance of
Cheque Account, LYMLIND PTY LTD
interest fees accrued to date - $20,740-07

TOTAL FROM PREVIOUS PAGE - $ 9,911-50

$30,651-57"

(7) The Bank's letter dated 3 March 1989 was written by Mr. Schroder. When the first respondent first raised with him the proposal that the first respondent draw from the account of CHF1,400,000, Mr. Schroder asked for "more security". The first respondent then had this conversation with the second applicant by telephone:

"[The first respondent] `I have to take 1 million Francs from the deposit account to pay for the Baxter's property (meaning 118 Corrimal Street and 2 lots in Moore Lane). Perhaps the bank will ask for the titles of the property.'

[The second applicant] ' If the bank asks for the titles, give it to them.'"

When the first respondent next spoke to Mr. Schroder in relation to the proposal to draw on the amount of CHF1,400,000, Mr. Schroder said:

"We are a skeleton. There's not enough security.
We need the titles."

The first respondent said:

"Do what you need to do."

(See Ex. 3, paras. 30-1).

(8) In April or May 1989, the first respondent informed the second applicant that some Commonwealth Bank properties were to be auctioned in the following telephone conversation:

"[The first respondent]: `Do you want to buy a bank building? I'm going to buy the bank at 83 Crown Street Wollongong with my money. Are you interested in buying a bank property?'

[The second applicant]: `Keep a look out for me. If the price is right and the return is right, I'm interested.'"

In a subsequent telephone call, the first respondent said:

"There is a bank building at Clovelly. It looks to be very large land. It could be a good development proposition. ..."

The second applicant said:

"Go ahead and buy it."

The first respondent then bought at the auction both 83 Crown Street (in his own name) and the Clovelly Road property (in the name of Lymlind).

The first respondent telephoned the second applicant, informing him that the Clovelly Road property had been purchased by Lymlind. This discussion ensued:

"[The second applicant]: `I don't want it. I don't want anything to do with this.'

[The first respondent]: `What am I going to do now? I've signed a contract and paid a deposit of 10%. We'll lose the $60,000 deposit.'

[The second applicant]: `It's up to you. Why don't you take it for yourself?'

[The first respondent]: `I'll have to buy it. I'll have to go ahead in my own name. I haven't got any other money. I'll have to use your money.'

[The second applicant]: `No problems.'"

The first respondent "went ahead and purchased (in my own name) the Clovelly property using the 1.3 million Swiss Francs I had received from my brother..."

(See Ex. 3, paras. 32-5).

(9) In November 1990, the Lymlind properties and properties owned by the first respondent (44 Campbell Street, 77, 87 and 89 Crown Street) were put to auction, without a sale being achieved. Before this, the following discussion took place:

"[The second applicant]: `George you have to put some properties to auction as well to clear my titles. I want to take my money back.'

[The first respondent]: `Alright, I will.'"

At the end of 1990, the first respondent informed
the second applicant that, because the Australian economy was "going backwards", the project, including the possible acquisition of 120-2 Corrimal Street, did not "look good". The second applicant said:

"Leave it to sleep. We'll see."

In May 1991, the second applicant prepared a circular letter advertising that the property was offered for sale.

(See Ex. 3 paras. 36-44).

(10) In May 1991, when the second applicant was in Australia, he discussed with the first respondent the latter's Swiss franc borrowing facility. The second applicant said:

"You're paying commission and extra interest and the currency is moving against you. It's time to come out of Swiss francs. We'll talk to the State Bank, Commonwealth and the Singapore Bank and get the best deal for you."

Subsequently, the second applicant said:

"We have so much property, you and I. We'll put our forces together and we'll get this money and a good deal. The big security will attract the bank to give us the money."

At a meeting in Sydney with officers of the Bank of Singapore, in the presence of the second applicant, the first respondent said:

"I want to review my loans and extend them. We can

provide more security. My brother and I have more than ten million dollars worth of property which is on the market now."

After the meeting, the second applicant said to the first respondent:

"George we'll write a letter to the bank. We'll tell them everything we need and ask them for better rates. We'll ask for the money in two parts. When the land sells we'll pay back the first part. It's important to get you out of Swiss Francs into Australian Dollars now."

The second and third applicants and the first respondent then prepared a letter from the first respondent to the Bank of Singapore. In the letter, dated 13 May 1991 (Ex GPX9), a number of new facilities were sought. Security offered included 83 Crown Street which was said to have a value of $1,550,000.

(See Ex. 3, paras. 48-60).

(11) In May 1991, the first respondent and the second applicant also discussed possible finance facilities with other banks, including the State Bank. A letter to the State Bank from the first respondent dated 13 May 1991 (Ex. GPX10), which was prepared by the second and third applicants and the first respondent, sought an extension of the existing loan facility of $1,100,000 until December 1992 and approval of a new facility in the amount of $1,100,000. Security offered included 83 Crown Street. The proposal was discussed by the first respondent and the second applicant with Mark Purtill, an officer of the State Bank, on 13 May 1991. By letter to the first respondent dated 14 May 1991, (Ex. GPX11), Mr. Purtill (who was also called by the respondents to give evidence) referred to his meeting with the first respondent and the second applicant on 13 May 1991 and provided the first respondent with an "indicative proposal" for a borrowing of $2,100,000, which would have included repayment of "current CHF facility" of $1,700,000. Security included, inter alia, a registered mortgage over 83 Crown Street. After discussing the State Bank proposal with the second applicant (who expressed a view in favour of it), the first respondent proceeded to take it up. This involved executing, inter alia, mortgages granted by Lymlind in favour of the Bank.

(See Ex. 3, paras. 61-74.)

(12) When in Australia in April and May 1991, the second applicant made the following statements to the first respondent:

"Australia has not been good to me. I want to finish with Australia.

We pay more taxes here than in any other country. I didn't know empty land could cost me so much money.

I want to sell my land and take the money out. I've checked the balances through the books.

The balance of the money you can have for now but we must have a document to show you owe me the money.

You don't have to worry about the repayment and you
don't have to worry about interest or anything else but it has to be a proper document. Where there is life there is death. I don't want to worry about your kids or my beneficiaries to worry you. The paper is just going to show you owe me that money. I don't have kids. I'm not going to rip your kids. I took your Debbie to the Lidz school. I look after your kids like you do yourself."

The second applicant also said:

"I've done the calculations. The balance of the money you owe me is 1,300,000 francs. We have to have someone to do a document. Do you think it should be Mr Lipton? I would prefer to have someone who speaks German. Do you know any German solicitors or does Frieda?"

(Mr. Lipton, the solicitor presently acting for the respondents, had acted on the acquisition of the Lymlind properties on the instructions of the first respondent.)

The second applicant said that he knew a German-speaking solicitor at Parramatta and that he would get him to prepare the contract. (The solicitor was Mr. Schweizer, who is acting for the applicants in the proceedings.) The first respondent agreed. Shortly after this, the second applicant informed the first respondent that the solicitor had prepared the contract.

(See Ex. 3 paras. 78-80.)

The first respondent's statement (Ex. 3) then proceeds:

"81.I had not checked anything to do with the balances. I trusted my brother. I was very preoccupied with my companion Frieda Hoeffler who was very sick with cancer. I had been advised by her doctor that Frieda had only a short time to live. I was emotionally distraught and was not giving my attention to any of my business affairs at that time.

82.We went to Mr Schweizer's office at Parramatta. He produced some documents which I now believe included the deed which we later signed in Bali.

83.Mr Schweizer said to me `You know this is for 1.3 million francs'

I said - `Well my brother's done the calculations. If he says that I trust him'.

84.Mr Schweizer did not explain anything else to me that I remember or that I understood.

My brother said to me a short time later - `I've been advised we should go to Bali to sign this and we can have a holiday at the same time. We'll save stamp duty. It's not going to cost much. Just the airfares. I can get very cheap accommodation."

The parties proceeded to Bali where the deed was signed.

(In fact, two deeds, both dated 22 May 1991, and two Declarations of Trust of shares in Lymlind (which declarations are not contentious) were executed in Bali by the second and third applicants and the first respondent in the presence of Elfriede Hoefler -see Ex. A(3).)

One deed is entitled a "Deed of Acknowledgment". It merely states that -
"... [the first respondent] acknowledges receipt by him on 20 May 1989 of the sum of Swiss Franks 2,300,000.00 from Anarghyros Parianos and Marguerita Parianos being:

(a)S.Frs.1,000,000.00 repayment of moneys due by Anarghyros Parianos and Marguerita Parianos to George Parianos; and

(b)A loan of S.Frs.1,300,000.00 by Anarghyros Parianos and Marguerita Parianos to George Parianos."

The other deed is entitled a "Deed of Loan". Relevantly, it is in these terms:

"THIS DEED OF ACKNOWLEDGEMENT OF LOAN made the 22nd day of May, 1991 BETWEEN: ANARGHYROS PARIANOS and MARGUERITA PARIANOS both of Freudenbergstrasse 105, 8044 Zurich, Switzerland (jointly `the Lenders') of the one part

AND: GEORGE PARIANOS of 53 Crown Street, Wollongong, NSW, 2500, Australia (`the Borrower') of the other part

RECITES:

A.The Borrower is the registered proprietor of the property referred to in the first schedule (`the property') subject to the encumbrances referred to in the second schedule (`the encumbrances').

B.The Borrower requested the Lenders to lend him the sum of Swiss Franks 1,300,000.00 (`the principal sum') to assist the purchaser with the purchase of the property.

C.The Lenders obtained a loan of the principal sum from the Schweizerischer Bank Verein, 8030 Zurich, Hottingen branch (`the Lenders' bank') in order to advance the money to the Borrower.

D.The Lenders agreed to lend the principal sum to the Borrower on certain terms and conditions.

E.The parties have agreed to record those terms and conditions in this Deed.

AND WITNESSES:

The parties agree that on 20 May, 1989 the Lenders lent to the Borrower and the Borrower borrowed from the Lenders the sum of S.Frs. 1,300,000.00 and that the Borrower applied the money for the purchase of the property.

The parties also agree that the terms and conditions of the loan made by the Lenders to the Borrower are as contained in this Deed.

In consideration of the loan, the Borrower agreed with the Lenders:

(a)To repay to the Lenders the whole of the principal sum or so much thereof as shall remain unpaid together with all interest, if any, due and payable thereon on the date (`the due date') being three (3) months from the date of receipt by the Borrower of a request from the Lenders to repay the loan;

(b)To pay interest on the principal sum or on so much thereof as shall from time to time remain unpaid calculated at the rate charged by the Lenders' bank on loans of S.Frs.1,300,000.00 as from the date of the loan by six (6) monthly instalments, the first such payment to be made six (6) months after the date of the loan; and

...

The parties agree that the interest amounts payable in respect of the loan shall, if unpaid, be capitalised by the Lenders as and from the respective due dates for payment and added to and form part of the principal sum.

..."

(The property described in the first schedule is 83 Crown Street. The encumbrances described in the second schedule are (1) a lease to the Commonwealth Bank and (2) a mortgage to the Bank of Singapore.)

The first respondent's statement, Ex. 3, continued as follows:
"90.The night before I was to leave Bali, my brother said to me `George we have to sign the document.' I signed the documents where he showed me.

91.I did not realise the deed which I signed (`the Deed') provided for payment of interest. I relied on what my brother told me as set out in paragraph 76 above.

92.I relied on my brother's assurance that the correct balance was 1.3 million Swiss Francs and when I signed the documents I believed my brother had told me the correct balance.

93.Had it been explained to me that there was interest provided for in the Deed I would still have signed because I trusted my brother's word that he would not claim interest from me. I would have regarded any reference to interest as a formality in the document which did not affect my agreement with my brother. I had borrowed AUD$1.1 million which had been used for Lymlind's property purchase in December 1988 and had never asked for interest on any moneys I had paid out to Lymlind, nor a payment for my work in helping my brother with his property investments in Australia.

94.I did not realise the Deed provided for payment on 3 months notice. But even if I had, I would have relied on my brother's assurances he would never call on it. I expected to repay the money when I had money available to do so.

95.I did not turn my mind to the significance of the choice of Swiss Francs as the currency of account in the Deed nor did I turn my mind to the interest applying from May 1989. I did not realise that there was a backdating of interest provided for in the Deed.

96.Even if I had understood that the interest was backdated to 1989 in the Deed I would have relied on what my brother had said to me, that he did not require payment of interest, and I would still have signed the documents. I would have regarded this provision also as a formality which did not affect my agreement with my brother.

97.My brother and I had always previously discussed the moneys owed between us in Australian dollars, never Swiss Francs.
98.I believed that the 1.3 million Swiss Francs was a calculated exchange at current rates on the amount of Australian dollars which I owed my brother overall. I did not think that this was 1.3 million of the 2.3 million Swiss Francs which my brother had transferred to Australia in May 1989. That amount of 2.3 million Swiss Francs had been exchanged into dollars upon receipt in Australia."

(In cross-examination, the first respondent gave the following evidence concerning the Bali deed (T(D)224-5):

"Are you now - you say you were not aware of what the effect of that deed was at the time?---I'm aware of that deed on that time was the balance of the money who my brother have sent in Australia was on that I owed him and he put it on that deed.

You did not read the deed before you signed it, is that what you tell his Honour?---I was trusting my brother, I trust his judgment my agreements which he says this is the amount of money we have to put in black and white and one day before, night before I left Bali, he comes to my room and we sign with Frieda and next morning we left.

Are you telling his Honour that you did not read the deed before you signed it?---Yes, I don't read the deed before I sign because already the agreement was with my brother, that is the money I owe him and this money one day he must have it for me with no problems from the beneficiaries and everybody else and I sign.

And you did not read it?---And I don't read it.

And Miss . . . . . inaudible [Hoefler] did not read it either? It took one second about five minutes, she comes on her room and he says we have to sign, we sign and she went on his room.

Do you understand the effect of the deed now?---I understand but again if I have read the deeds no time and I have see all these conditions I have take my brother security who he has promised to me this is the amount of money you owe me and that's it.

And you did not read the deed in Bali?---I don't read it.

When did you first become aware of the fact that the deed in fact made you responsible for paying some money to your brother and his wife?---In 1992 Frieda was on her last leg before she went to the palliative care, my brother start talking about interest, start talking about repayments, start talking about his bank have squeezed him, he talks - he has a problem with his wife and his marriage is on the rocks and he talks for many things to me to give me such way you know I have to pay him back and he want interest and everything else on the top."

He went on to give this evidence (at 226-7):
"Mr. Parianos, when did you first become aware you tell his Honour that the Bali deed made you responsible for some payments to your brother and his wife?---I say the Bali deed comes to a fact on me the time my brother comes before Frieda was die in late '92 who he bombard me with letters, he bombard me with statements, he bombard me with the statements and reference from his banks, he is on a very economical stage. He told on the letters the live in a property and everything else and the bank push him and he start to ask me the responsibilities of Bali deeds.

So you tell his Honour in what year was that?---In late 1992 or the middle of '92.

And?---And before he wants to sell the - every auction we did he wants me to put properties in so we can sell.

Did you ever tell your brother this is not what the deed means and I am not going to stick to it because that is not the deal?---I told to my brother the gentleman's agreement at that time was not to claim this not to claim and now you have changed and you ask me for X amount.

You told him that you were not going to follow the provisions of the Bali deed?---No, I don't say to my brother that. I don't follow the conditions but I say is not fair because the time we did the deed was not - interest was not backdated and was not back payments and he never up to that time, he never asked me for interest.

But in fact after the date of signing the Bali deed you never paid him any interest did you?---I don't pay him interest because was not interest and we never talk about interest.")

(13) In his statement, Ex. 3, the first respondent, describes some payments he made to the second applicant as follows:

"100.I have sent three amounts of money to my brother details of which are:

12.8.89Swiss Francs 12,298.65

21.12.89Swiss Francs 67,983.30

10.8.93AUD$2000

lO1.The circumstances of these payments being made were:-

On or shortly before 12 August 1989 my brother telephoned me and said to me `I need some money to pay interest to the bank here. Can you send me some?'

I said - `Yes.How much do you want?'

He said - `I need (and he said an amount)'.

I do not recall his precise words.

103.I then made arrangements with the State Bank to transfer to my brother the amount he had asked for and in this respect a debit of 12,298.65 Swiss Francs was made to my Swiss Franc account at State Bank of New South Wales on 12 August 1989.

104.About 20 December 1989 my brother telephoned me again and a conversation took place in words to the following effect:-

[The second applicant] `Can you send me some more money?'

[The first respondent] `How much?'

105.[The second applicant] stated an amount. [The first respondent] `I cannot remember the amount that he asked for but on about the following day I made arrangements with the State Bank to send that amount. In this respect a debit of 67,083.30 Swiss Francs was made to my Swiss Franc account at State Bank of New South Wales on 21 December.

106.In August 1993 I received a telephone call from my brother.

[The second applicant] - `I'm in Greece. You know Bill Sofikitis. You went to school together.'

[The first respondent] - `Yes.'

[The second applicant] - `I need $5,000. Put it into his account in Adelaide and I can get the money here.'

[The first respondent] - `I don't have $5,000 but I'll see what I can do.'

I went to the Commonwealth Bank the following day. I received information I could not transfer to the nominated account. I then transferred $2,000 that day to Kranidion to the National Bank of Greece for my brother.

108.There was no discussion with my brother that these moneys were to be regarded as interest.

109.I never viewed this as interest but simply as money which my brother asked for. I was conscious at this time that, ignoring the legal details of companies and so forth, I owed my brother money. I was therefore willing to send him money when he requested it. The moneys which I sent him had come from him in the first place.

110.Until 2 February 1993 when he sent me a letter my brother never asked me for any interest on moneys he had sent to Australia nor even spoke about payment of interest from May of 1991."

(The letter dated February 1993 is not in evidence. However, two letters written by the second applicant to the first respondent in 1992 were tendered. Both were written in Greek but the exhibits have been translated. The first letter, dated 4 January 1992 (Ex. 25) was in these terms: (It should be noted that it is common ground the words "Avocas" and "Kangaroos" are references to land at Avoca and to a rural property respectively and that "the bank in Sydney" is a reference to the Commonwealth bank premises at Clovelly)
"I send you one written document and I ask Freida to translate in English and you send it to me by express plus the 2 documents of Lymlinds sign them and after I'll fill in the necessary information and I'm going to send one to Mr Bennett and one to Mr Clayton.

For the sale of and the total wind up of Lymlind we have to be very quick because I'm going to face very large tax problems because Australia and Switzerland are soon going to sign agreement for tax purposes. After that unfortunately I face personal large economic problems, and plus from the banks. For that we have to calculate to sell Lymlind the latest June '92. Unfortunately we must get around $5 million for the land and 450,000 for the shop. Same time I like to ask you (please) to be very active and give for sale the bank in Sydney the avocas and kangaroo's this time please I want you to be very active how much you can because I don't have another chance and I'm afraid from the bank and taxation dept.

I await for answer the translation and the 2 signed blank documents."

The second letter, dated 12 April 1992, (Ex. 26), was as follows:

"I am enclosing the correspondence with Schweizer. If I compare the correspondence from Clayton, Bennet and Schweizer, the state of the real estate market in Wollongong must be more than dramatic. I am of the opinion that if we find a buyer for A$3,500,000.00 for Crown St. and the land together, we must be very lucky.

Fortunately or unfortunately, because the pressure from the bank is great and insists, I should return SF 2,300,000.00 until 30.06.92. I would ask you to make every effort and in co-operation with Schweizer (5% commission) and with Benet (legal commission) to sell the land within the next 2 months for A$3,000,000.00 and over, and the building for A$3,000,000.00 and over and you send me the money, at least SF 2,500,000.00 (SF 2,300,000.00 for the mortgage and SF 200,000.00 for the interest) so I can be saved from the bank's blackmail. [Emphasis added]

Do not forget that I promised the bank that by the 31.12.90 I would have returned the mortgage of SF 2,300,000.00. Do not forget that I have another mortgage of SF 2,470,000.00. The bank is right to blackmail me, because my properties in Zurich were valued in 1988 at SF 6,000,000.00 and if they re-value them today, the value will only be around SF 4,500,000.00 and they will be forced to do that in the next two months. Then they will tell me, 60% of SF 4,500,000.00 = mortgage A 2,700,000.00 - and 15% of SF 4,500,000.00 = 675,000.00 - mortgage B.

Mortgage total SF 3,375,000.00. I have taken SF 4,770,000.00 of the mortgage total then return to them the sum of SF 1,395,000. I do not have that amount to give them immediately and therefore they will not accept the second mortgage and they will demand the sum of 2,070,000.00 (1,395,000.00 plus 675,000.00 mortgage B) and they will put up for auction, the buildings, which will destroy me, because by auctioning one building, it reduces the value of all the buildings and then they will start asking for the original mortgage of SF 2,470,000.00 and they will auction all the buildings for any price, which will be SF 4,000,000.00 at the most. The result of all these, will be, to lose all my properties for SF 4,000,000.00 minus SF 4,770,000.00 for the mortgage, therefore I will still owe them 770,000.00 plus sales tax, other expenses and the negative balance of the properties account. It all amounts to an absolute destruction and I must start from the beginning again and I do not think, I can start all over again. Because I do not want you to believe that I put pressure on you, I am sending you a photocopy of all the receipts from the bank, dated 31.12.91 where you can see clearly the amounts of the mortgages, the interest and the negative balance of the properties account.

As far as the sale of the bank in Sydney is concerned, you decide and sell up to A$850,000.00. because I do not think that Australia's economy will get better in the near future. Give many regards to Freda. You have many regards from Margaret."

Although dated April 1992, the letter was not, in fact, sent until later (T(D) 291). A note from the second applicant accompanying the letter (Ex.27) was in these terms (as translated):

"This is the letter I had made ready to send you in April, but I avoided it, because I share your problems and hoping you will sell something soon and you will send me."

THE SCOTT CORRESPONDENCE
Before turning to a statement of evidence of the second applicant tendered in reply, the correspondence written by Mr. Scott to the second applicant which is in evidence should be noticed, as follows:

(a)Mr. Scott's letter to the second applicant dated 3 December 1987

In this letter, expressed to be written in the context of the purchase of 55 Crown Street, Mr. Scott referred to "the company which [the first respondent] has formed to enable you and your wife to purchase the above property...".

(See Ex. A(5).)

(b)Mr. Scott's letter to the second applicant dated 25 November 1988

In relation to the "structure" of Lymlind, Mr. Scott stated that "[u]nder Australian legal requirements, a company with foreign shareholders to be able to purchase local real estate must have at least 50% of its shareholders as Australian residents"; and that "[i]f [the second and third applicants] were to become Australian residents then the shares [in Lymlind] held by [the first respondent] and Frieda [Hoefler] could be transferred to the two of you...".

Details of the costs of the purchase of 55 Crown Street were given, together with a "reconciliation of monies received from overseas." (A reference to the application of the sum of $300,000.) Reference was then made to rents received from the property deposited to a "Flexible Deposit Account" showing a balance of funds of $20,068.27. The following was then stated:

"Payments made by George Parianos in relation to

55 Crown Street, Wollongong

5.87- Option to Purchase
- Holding Deposit paid on
property - $500.00

10.12.87- Corporate and Personal Planners
- purchase of shelf company - 743.00

1.88-   Australian Eagle Insurance Co. Ltd.
- Property Insurances
                    - Liability Policy - $ 85.15
                    - Fire Policy     - 451.00 -    536.15

1.88-   Norbert Lipton and Sankey,
Solicitors
                  - Stamp Duty payable on
                    property purchase            - 8,990.50

3. 88- TNT Couriers - Delivery of
Documents - 44.13

-$10,813.78

These amounts have not yet been reimbursed by the Company.

If you have any questions in relation to the matters detailed in this letter, please contact George."

(See Ex.A(5)).
(c)Mr. Scott's letter to the second and third applicants dated 12 April 1990

In this letter (Ex. A(5)), Mr. Scott stated:

"Please find enclosed financial Statements for the year ended 30th June, 1989 together with Notes giving full details of payments made and monies received by the Company up to 30th June, 1989. These are shown in Australian Dollars.

I have also enclosed a Summary of monies sent by you from Switzerland and their disbursement up to 30th June, 1989. This Summary is presented in Swiss Francs as most of the money received was deposited in Swiss Franc Investment Accounts with Australian Banks.

If you require any further information, please do not hesitate to write to me."

The balance sheet (which was marked with the handwriting, possibly that of the third respondent (cf. T 134-8) showed that 19 shares had been issued.

The notes to the balance sheet stated that:

"An additional 15 Ordinary Shares of $1 each were issued to George Parianos on 15th May, 1989 in order to overcome possible problems with the Australian Foreign Investment Review Board as the company was not 85% 'owned' by Australian Residents. George said that both of you had approved of this being done."

The balance sheet showed the following as non-current assets:

The current liability stated in the balance sheet was a bank overdraft with the State Bank in the sum of $124,203.

The non-current liabilities were described as follows:

"

Note 17 was as follows:

Management Fees -

For the year ended 30th June, 1989 the Company made a Net Profit of $29,495. In order to avoid the necessity of having to pay Company Income Tax, Management Fees were 'paid' by book entry to Parianos G. & I. Family Trust ($10,000) and George Parianos ($20,000). Both the Family Trust and George had accumulated Tax losses which could absorb these payments."

The statement of monies forwarded by the second and third applicants was as follows:

THE SECOND APPLICANT'S STATEMENT IN REPLY

In his written statement in reply (Ex. Y), the second applicant said (para.1) that he was not aware until March 1993 that Lymlind had given security for any loans and denied the conversation alleged by the first respondent in para.3 of his statement, Ex. 3.

The second applicant also denied (para.15) the conversations about 120-2 Corrimal Street set out in paras.13-16 of the first respondent's statement. The second applicant said (Ex. Y, para.16):
"16.I first had a conversation with my brother about 120 and 122 Corrimal Street in late 1989 or early 1990 by phone. The conversation was not as is alleged in his statement. My brother said to me words to the effect: `I have an option for 120-122 Corrimal Street. I have already paid $1,000.00 deposit for the property. It will cost about $1 million.' I replied words to the effect: `I have already sent you so much money. We have no more money. We can't buy it. There is no way that the property can be bought.'"

On the question of interest, the second applicant said (Ex.Y, paras. 11-14):

"11.I recall that I telephoned my brother at about the end of June 1989. I told him the interest amount to be paid calculated to 30th June 1989.

12.In July or August 1989, I reminded my brother in telephone conversations about 2 or 3 times that he had to send the money to cover the outstanding interest payments.

13.In December 1989 I phoned my brother and said `The interest due to 30th December is CHF 67,083.30, and I want it paid before the end of the year. Not late like it was paid in summer.' The payments set out in paragraph 100 were sent. I also agree that he sent AUD2,000 me in Greece although I had requested he send AUD$5,000.00.

14.Thereafter, in conversations between my brother and myself in June and December 1990, I said to him words to the effect: `You must send the interest payments from Lymlind to me out of the rents Lymlind is receiving.' In these conversations I also told my brother the amount to be paid to cover the interest. My brother replied words to the effect: `I've had large expenses with the development application and Lymlind doesn't have enough money to pay.' In one conversation I replied words to the effect: `But Lymlind gets $83,000.00 per annum rent from the Bank plus $35,000.00 per annum from 55 Crown Street (total $118,000.00 per annum).' My brother replied words to the effect: `Lymlind has had large expenses. When you come to Australia we will have a detailed discussion about it.' I did come to Australia in April 1991 when, for the first time, I learned that 83 Crown Street was not in Lymlind's name."

With respect to 83 Crown Street, the second applicant said (Ex. 4, paras.17-20):

"17.It was only in 1991, while attending a meeting at the office of John Lee, the accountant for my brother at that time and also Lymlind, that I became aware for the first time that the Crown Street bank property was not in Lymlind's name.

18.Following this meeting, on the return trip to Wollongong in my brother's van, I said words to the effect `Why doesn't Lymlind own 83 Crown Street?'. My brother replied words to the effect: `You authorised me to buy it in my name because you had difficulties to buy it in the name of Lymlind.' I replied: `That's not so. When and were did I tell you that?' He replied: `You phoned me.' I then said: `I did not. When and were did I phone you? I didn't tell you that.'

19.I then said `I am sorry. Lymlind must become the owner of the property (at 83 Crown Street) from the time that it was purchased. In addition, except for the year 1989, Lymlind did not pay me the interest for the mortgage I took up for the CHF2.3 million. I want the property back with all the rents from it from the time it was purchased.' My brother replied words to the effect: `That would cost about $60,000.00 transfer costs.' I replied words to the effect: `You'll have to pay that, not me. Lymlind will only pay once.'

20.My brother then said words to the effect: `I won't give you the property back because the value of a property increases. I don't want to disadvantage my children.' He then said: `I will owe you CHF 1.3 million plus mortgage interest rates as from when you sent the money. That will be retrospective to that date.' After some further discussions I eventually said words to the effect: `I don't want any trouble. Frieda is sick and even though my wife does not agree, I will accept that.'"

The second applicant went on to refer to the Bali deed as follows:
"21.I knew that Mrs Hoefler, my brother's defacto wife, was terminally ill. In early April 1991 I said to my brother words to the effect: `We'll stay here until 13 May. We have already booked in Zurich to go to Bali on 14 May. Don't you want to take Frieda and come with us? It may be her last holiday. She loves Travelling.' A little later he said: `Yes we'll come with you'.

22.The first time I met Mr Schweizer, whose name I had obtained in Switzerland, was with my brother, Frieda Hoefler and my wife at Mr Schweizer's home on 27 April 1991. At the meeting we discussed the proposed agreement. The discussions took place in the English language but Mr Schweizer spoke to my wife and I in German. No documents were prepared or discussed at the meeting.

23.On 3rd May 1991, my wife and I had a meeting with Mr Schweizer at his office at Parramatta. My wife and I then had a further meeting with Mr Schweizer on 7 May 1991 at which he handed me the Deed of Acknowledgment and Deed of Loan.
24.We arrived in Bali on 14 May 1991. On the morning after we arrived in Bali, the four of us were lying in deck chairs at the hotel. I said: I am really very unhappy with what you have done. You know Margrit was against me borrowing money to buy 83 Crown Street. Now I find you have bought it and refuse to transfer it to me. I counted on the income to pay for the money I borrowed from my bank. Now I am only going to get part of the interest paid. In any case I want to repay the loan within twelve months. I expect the interest we have agreed on to be sent regularly.' He said: `You can depend on me. I will send you the money.'

25.I also said to my brother words to the effect: `I want you to pay the money as soon as possible. If possible, I would like you to repay it immediately because I only borrowed for one year back in Switzerland.' I never said that I did not require interest payments as alleged by my brother. My brother and I always talked about the sum of CHF 2,300,000 and the CHF 1,300,000 referred to in the Bali deed in Swiss Francs and not in Australian dollars.

26.The Bali deed was signed on 22 May 1991. We all left Bali on 26 May 1991."

The second applicant denied (para.28) that any "mixing" of properties owned by Lymlind with properties owned by the first respondent was discussed, for instance, as claimed by the first respondent in para.52 of Ex. 3.

With respect to 55 Crown Street, the second applicant said this (para.34) in response to the first respondent's statement (in para.112 of Ex. 3) that the second applicant agreed that, in order to sell it, the agent advised installing a tenant and renovating it (both of which the first respondent would undertake):

"34.The only discussion I had with my brother about him being a tenant in the property at 55 Crown Street was in a telephone conversation on or about 27th September 1991. Prior to that date, he had never informed me that he was carrying out any renovations at 55 Crown Street. In the conversation my brother said words to the effect: `I've got a buyer for 55 Crown Street for $500,000.00. I will take the responsibility to find a tenant for $60,000.00 net per annum for 5 years.' He also said words to the effect: `At the moment, its hard to find tenants. If I can't find one then I'll take over the lease.' I replied words to the effect: `You always say its hard to find tenants. If you can't get one, what then?' He replied words to the effect: `Then Lymlind will be the tenant.' I replied: `I don't agree. I do not agree to sell on those terms. I am not prepared to enter into such dubious arrangements. Do not sell the property under those conditions.'"

FINDINGS AND CONCLUSIONS
Although it will be necessary later to deal, in a specific way, with the claims for relief made in the application and in the cross-claim respectively, it will be convenient at this point to express my findings and conclusions generally since there are many aspects that are common to each of those claims and cross-claims.

(a)General findings and conclusions
As I have already indicated to counsel in argument, whilst reliable documentary corroboration exists in many areas, there are difficulties in accepting either version of the discussions between the parties which the second applicant, on the one hand, and the first respondent, on the other, have given where no reliable form of corroboration
exists. Both the second applicant and the first respondent showed, in their testimony, a keen and enthusiastic appreciation, I think, of the issues in the case and of the potential significance of their evidence to the outcome of the litigation. Moreover, neither of them proceeded to conduct their respective affairs in a way that was methodical, so that there was virtually no documentation available to corroborate the discussions, noteable exceptions being the German loan agreement and the two Bali deeds. In giving their evidence, both the second applicant and the first respondent were anxious to act, so far as they were allowed to do so, as advocates of a cause rather than as witnesses. In the result, I am not prepared to act upon the evidence of either of them biased as I found their testimony to be, so far as it stands uncorroborated.

It follows from this, in my view, that the only reliable evidence in the proceedings consists of the documentation that was generated, there being no suggestion, ultimately at any rate, that any of that material was not authentic.

From the applicants' point of view at least (and I will return later to consider this aspect from the point of view of the cross-claimant) the terms of the Bali deeds (which in any event were, relevantly, consistent with the German loan agreement) contradict the applicants' assertion that it was the mutual intention of the parties that the applicants have the beneficial ownership of 83 Crown Street. It will be recalled that in Recital B of the Deed of Acknowledgment of loan, it was stated that the purpose of the loan was "to assist [the first respondent] with the purchase of the property [83 Crown Street]". Although declarations of trust of the shares in Lymlind held by the first respondent were also executed in Bali in favour of the second and third applicants, there was no suggestion then or at any other time that any trust be declared of the first respondent's interest in 83 Crown Street. The circumstance that the relationship of lender and borrower was evidenced by both Bali deeds is another indication that the payment of the sum of CHF1,300,000 was not intended to be applied in the acquisition of a beneficial interest in the property for the applicants. That this was the true position was also confirmed by the accounts provided to the applicants with Mr. Scott's 1990 letter.

It is true that Lymlind was not made a party to any of the Bali documents. But, as the declarations of trust then executed confirmed, the second and third applicants were at all times the controllers and beneficially entitled to the share capital of Lymlind. It follows that Lymlind should be regarded as bound by the actions then taken by the second and third applicants.

None of this is to deny that, at an earlier point of time, the parties, or some of them, could have contemplated that the applicants might possibly acquire an interest in 83 Crown Street. But looked at as at the time of execution of the Bali deeds (May 1991) the matter was, in my view, then resolved, at least so far as the applicants were concerned, upon the footing that the payment in May 1989 of the amount of CHF1,300,000 was to be treated as money lent by the second and third applicants to the first respondent; and that, consequentially, he should be treated as legally and beneficially entitled to 83 Crown Street.

As has been noted, the position of the cross-claimant with respect to the Bali deeds requires separate consideration. I now turn to do this.

It will be recalled that, in his cross-claim, the first respondent claimed, inter alia, that the Bali deed be set aside on the grounds, amongst others, that his entry into it was induced by a false oral representation by the second applicant that interest would not be claimed.

I cannot accept this claim.

In the first place, as has been noted, I am not prepared to act upon evidence of this kind unless reliably corroborated; no such corroboration is available. Secondly, I would in any event have difficulty in accepting that an experienced businessman, as the first respondent plainly was, could fail to notice the existence of the provision for interest in both the German loan agreement and the Bali deed. It may be that the second applicant and the first respondent had fraternal understanding, or "gentleman's agreement" that temporarily interest would not be payable, in which event interest could be capitalised under cl.6 of the Bali deed. But that is another matter and even if it was the position, given the lapse of time, it would have no practical significance. Even if there was temporary forbearance on the part of the second applicant to require interest to be paid under the Bali deed, it is not possible to infer here an intention to write off entirely any entitlement to interest in any permanent sense.

On behalf of the respondents it is also contended that the applicants cannot now sue upon the Bali deed for CHF1,300,000 and interest, since, in their opening the applicants, so the respondents contend, elected to abandon those rights by claiming that the Bali deed had been discharged and so that the applicants might claim beneficial title to 83 Crown Street.

Two matters should be noticed here. First, the applicants' claim that the Bali deed had been discharged at common law cannot, in my view, be substantiated. The first respondent made some payments by way of interest in 1989 under the earlier German loan document and a further payment of $2,000 was made in 1993. In those circumstances, in order to terminate the Bali deed effectively at law and in equity, at least prior to the commencement of these proceedings, notice needed to be given by the applicants of their contention that the first respondent was in breach of the Deed by failing to pay interest so as to give the first respondent a reasonable opportunity to remedy the default. No such prior notice was given. In particular, the correspondence written by the second applicant in 1992 (Ex. 25, 26 and 27) did not seek to make this point; if anything, that correspondence was inconsistent with a desire by the applicants to avoid the deed. Moreover, the seeking of relief in the cross-claim did not, in my view, constitute a repudiation of the deed at common law.

Secondly, even if by their opening the applicants did finally elect to abandon the Bali deed (a point which, for practical reasons to be given shortly, I do not now decide), no significance could, in my opinion, attach to any such abandonment because, as the respondents properly concede, even if the deed were avoided, the second and third applicants would still be entitled to recover from the first respondent an appropriate amount under the doctrine of unjust enrichment. But for all practical purposes, the outcome will be the same: If the Bali deed is to stand, interest will be payable, as the German loan agreement also provided, at the Swiss bank rates. On the other hand, even if the Bali deed did not govern the position, it would be proper that the Court exercise its statutory power to award interest and, in the circumstances, the most appropriate rate would be that payable by the second and third applicants to their Swiss bank.

Another aspect of the election argument is the possibility that it be ordered that the first respondent be remunerated for his efforts for Lymlind, especially in finding suitable properties. No actual agreement for remuneration is suggested and if the Bali deed were to stand, no basis exists for offsetting an amount for remuneration against the principal of CHF1,300,000 and interest. If, on the other hand, there were a final and irrevocable election by the applicants to abandon the Bali deed (rather than merely advancing the claim to 83 Crown Street as their primary case in a series of alternative claims), so that the matter is dealt with under the doctrine of unjust enrichment, it is said on behalf of the first respondent that justice requires that the first respondent be ordered to be remunerated for his efforts.

I have difficulty accepting this argument, even if the assumption that the Bali deed cannot be relied on is made for the purpose of the argument.

The parties never addressed the possibility that the first respondent be remunerated retrospectively, as is now suggested. In this area of activity, even if it be accepted, in principle, that some remuneration should be allowed, it is by no means obvious what rate of remuneration, whether by time or by commission, should be allowed. If, on the assumption made, the objective is to achieve a result which avoids unjust enrichment, it would, in my view, be unjust if the Court were now to impose upon the parties, retrospectively, an artificial regime under which, for the first time, the first respondent were to receive some form of remuneration. That is to say, if there is to be no unjust enrichment, there should, in my opinion, be no provision made for the remuneration of the first respondent.

That is to say, whether the matter is looked at under the deed or under the doctrine of unjust enrichment, I am of the view that no allowance should be made to remunerate the first respondent.

I turn now to the specific claims made by the applicants and then to the cross-claim.

(b) The applicants' claims
Not all of the claims made in the statement of claim are now pressed. However, as I have already indicated in argument, the applicants are entitled to a declaration that the respondents are bound to procure the discharge of the securities over the assets of Lymlind which secure liabilities of the first respondent. (I do not understand that this entitlement is now disputed by the first respondent.) As I have further indicated in the course of addresses, the respondents are entitled to a declaration that none of the applicants has any interest, beneficial or otherwise, in 83 Crown Street. At the same time, in my view, whether under the terms of the Bali deed or by application of the doctrine of unjust enrichment, it should be ordered that the first respondent pay the second and third applicants the sum of CHF1,300,000 together with interest at the rate provided for in the deed but subject to the right of the first respondent to set off the expenditure incurred by him on behalf of the applicants, or any of the, from time to time, after making allowance for any amounts received by him on behalf of the applicants, including rent.

(c) The cross-claim
The cross-claim was put in several ways. In the first place, it was contended that the first respondent was induced to enter into the deed by false representations made orally. Alternatively, a collateral agreement, said to have been made orally, was alleged. As has been noted, in the absence of reliable corroboration, and none exists here, I am not prepared to find that the oral statements alleged were made. It must follow that, to this extent, the cross-claim must fail.
However, it is also said that, in the circumstances, the contract was "unfair" within the meaning of the relevant legislation. In particular, it was said that the first respondent received no independent, or other, expert advice and that the provisions of the deed and their legal and practical effect were not accurately explained to him. But, given the business experience of the first respondent, especially his experience in negotiating financial arrangements with banks and similar institutions, it is difficult to accept that these contentions have any merit. It is also of significance to note that the German loan agreement was, in any event, to the same effect as the Bali deed. Moreover, the provisions of the deed were straight forward and hardly called for any explanation; and so far as concerned 83 Crown Street, they were beneficial to the first respondent.

In my opinion, the cross-claim ought to be dismissed.

ORDERS
I will hear the parties on the form of the orders to be made, including costs, and on any matters outstanding from the accounts taken by Mr. Howard (Ex. 34), on a date to be fixed.

I certify that this and the preceding sixty-seven (67) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Beaumont.

Associate
Dated: 10 February 1995

[1995] FCA 39

10 Feb 1995