Michael Jaunay Mount (as Liquidator of Evening Light Pty Ltd. (in Liquidation)) v Lyndon Ross Frick and Shirley Joy Frick No. SCGRG 91/1570 Judgment No. 3958 Number of Pages - 9 Corporations

[1993] SASC 3958

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Corporations - Companies - winding up - Liquidator's action to recover assets of the company in possession of former employee - Alleged agreement transferring assets to employee - Dispute as to execution of the agreement - Purchase of other assets with funds of the company - Declaration that the claimed assets are beneficially owned by the company.

HRNG ADELAIDE, 2, 3 February, 29 March and 16 April 1993 #DATE 19:5:1993
Counsel for appellant:     Mr C McCarthy
Solicitors for appellant:    Cowell Clarke
Respondent L Frick:         In person
Respondent S Frick:         No appearance

ORDER
Declaration made.

JUDGE1 DEBELLE J This is an action in which a liquidator seeks declarations that certain vehicles are the property of the company of which he is the liquidator. 2. On 22 May 1991 an order was made in this Court winding up Evening Light Pty Ltd ("Evening Light") and appointing Mr M.J. Mount liquidator. 3. Before being wound up, the company carried on business as a carrier and cartage contractor. The directors of the company were Mr David Frick and Mrs K.G. Smith. The defendant, Mr Lyndon Frick, was manager of the company. Mr David Frick, Mrs Smith and Mr Lyndon Frick are brothers and sister. The defendant, Shirley Joy Frick, is the wife of Mr Lyndon Frick. 4. In the course of his administration of the winding up, Mr Mount ascertained that certain vehicles which he believed were owned by the company were no longer in the possession of the company but were in the possession of the defendants. He instituted this action seeking, among other things, a declaration that the vehicles were the property of Evening Light. Mr Mount has now ascertained the history or whereabouts of all but six of the vehicles. Mr Mount did not pursue the other relief sought in the Statement of Claim. This action, therefore, now concerns only the declaration sought in respect of six of the vehicles which Mr Mount claims are the property of Evening Light. 5. Mr Lyndon Frick (who I will for convenience call "Mr Frick") was responsible for the day to day management of Evening Light. He was employed as manager. He ran the office and undertook every aspect of the administration of the company. Neither Mr David Frick nor Mrs Smith took an active part in either the management or directorship of Evening Light. In addition to being a director of Evening Light, Mrs Smith was also secretary of the company. However, she became ill in 1989 and in mid-1989 handed over to Mr Frick all the books and records of the company. Thereafter she took even less interest in the company. Evening Light began to experience financial difficulties in late 1990 and early 1991. On 1 April 1991, Mr Frick ceased the business of Evening Light and began himself to operate a transport and cartage business under the name of F.B. Transport Services, the trade name previously used by Evening Light. In the conduct of the new business, Mr Frick used vehicles which had been owned by Evening Light including four of the vehicles the subject of this action. The summons seeking an order winding up Evening Light was issued in this Court on 3 April 1991. 6. The six vehicles claimed by the liquidator are: 1 Mack Prime Mover Registered No UEY 718 1 Valiant Sedan - SLU 502 1 Loadmaster Trailer - TKU 526 1 Utility - ULK 381 1 Loadmaster Trailer - TKV 752 1 Loadmaster Trailer - TKV
754. Mr Frick says that the first four vehicles were transferred to him by Evening Light pursuant to an agreement made on 1 July 1990. He says that both of the last two vehicles were purchased by him and on his own behalf in October 1990 and at all material times have been owed by him and not by Evening Light. 7. Evidence was given by Mr Mount and Mr Hall, a person in the employ of Mr Mount who was assisting him in the administration of the winding up of Evening Light. Evidence for the defendant was given by Mr Frick, Mrs Smith and Ms Schefe, a clerk employed by Evening Light in 1990, and a Mr Bunker. Mrs Frick did not give evidence. I accept in its entirety the evidence given by Mr Mount and Mr Hall. Mr Mount's evidence was in large part undisputed. Mr Hall's evidence was based on contemporaneous notes which he had made and other records available to him. He gave his evidence in a very factual and convincing manner. 8. Mr Frick represented himself. I have made every allowance for that fact in assessing his creditworthiness. I have also had regard to the difficulties he might have had in gaining access to documents which would have been in the possession of Mr Mount as liquidator of Evening Light. Nevertheless, I was most unimpressed by Mr Frick and where his evidence conflicts with that of either Mr Mount or Mr Hall I unhesitatingly accept the evidence of Mr Mount and Mr Hall. I refer later to my views on my evidence given by Mrs Smith and Ms Schefe. Mr Bunker, an independent witness, gave his evidence with complete candour. However, as will be seen, his evidence did not assist Mr Frick. 9. The evidence concerning the two sets of vehicles is quite different and it is convenient to deal with each separately. I deal first with the vehicles which Mr Frick alleges were transferred to him on 1 July 1990 by Evening Light, namely, the Mack Prime Mover (UEY 718), Valiant Sedan (SLU 502), Loadmaster Trailer (TKU 526), and Utility (ULK 381). 10. There is a body of compelling evidence to the effect that all four vehicles were beneficially owned by the company as at 30 June 1990. All four vehicles are listed in a depreciation schedule which formed part of the accounts of Evening Light for the year ending 30 June 1990. In the case of all of the vehicles except the Valiant Sedan, the registered owner of the vehicles is Evening Light. There was no proof who was the registered owner of the Valiant Sedan. In the end Mr Frick did not dispute that on 30 June 1990 all four vehicles were beneficially owned by Evening Light. At one stage, he had said that the Valiant sedan was registered in his mother's name. At a later stage, he said that the Valiant sedan was for the personal use of his wife. He ultimately agreed that if was owned by the company. I find that all four vehicles were beneficially owned by Evening Light as at 30 June 1990. 11. Mr Frick says, however, that by an agreement dated 1 July 1990 all four vehicles were transferred to him. The accounts of Evening Light for the year ending 30 June 1990 disclosed that Evening Light owed the sum of $33,140 to Mr Frick and his wife. The loan was unsecured. Mr Frick said that the vehicles were sold to him in discharge of that liability. The agreement relied on by Mr Frick is quite short. It reads:
    "The Directors of EVENING LIGHT PTY LTD hereby agree to sell
    equipment listed below to L.R. and S.J. Frick in lieu of
    monies owed by Evening Light Pty. Ltd. The sum owed being
    $33,000.00 (thirty three thousand dollars). 1 only Mack Prime
    Mover UEY 718 $25,000.00 1 only Valiant Sedan SLU 502 $ 500.00 1
    only Loadmaster Trailer TKU 526 $ 5,000.00 1 only Utility ULK
    381 $ 2,500.00 $33,000.00 " 12. The agreement purports to be signed by Mr David Frick and by Mrs K. Smith as directors and by Mr Frick. All of the signatures were witnessed by Ms Schefe. The common seal of Evening Light has also been affixed but not with the usual attestation clause. 13. Mr Frick said that on 1 July 1990 another document was executed in which he acknowledged that he accepted the four vehicles in satisfaction of the debt of $33,000 due by Evening Light to him. In addition to being signed by Mr Frick, it is also signed by Mr David Frick and Mrs Smith as directors and secretary of Evening Light respectively. Ms Schefe has witnessed the signatures. This short document reads:
    "I, L.R. FRICK hereby agree to accept the equipment listed
    below offered by EVENING LIGHT PTY.LTD in lieu of monies due.
    The amount owed being $33,000.00 (thirty three thousand
    dollars). 1 only Mack Prime Mover UEY 718 $25,000.00 1 only
    Valiant Sedan SLU 502 500.00 1 only Loadmaster Trailer TKU 526
    5,000.00 1 only Utility ULK 381 2,500.00 $33,000.00 " 14. This document, which I shall call "the acknowledgment", purports to be signed by all of the persons who had signed the agreement. It might be noted that, although the debt was due by the company to Mr and Mrs Frick, Mrs Frick did not sign either the agreement or the acknowledgment and she is not party to the acknowledgment. 15. In attempting to show that the values ascribed to the vehicles represented their true value, Mr Frick adduced evidence of the value for which each of the vehicles had been insured when the insurance cover was renewed in May 1991. The only sound evidence of value on which any reliance could be placed would be evidence of market value. The value for which an item is insured does not necessarily represent its market value and I therefore do not rely on the insured value as evidence of value. The evidence of value was the more confused by evidence of the depreciated value of the vehicles as shown in a depreciation schedule which forms part of the accounts of Evening Light for the year ended 30 June 1990. The depreciated value of each of the vehicles was as follows: Mack Prime Mover UEY 718 $5,985.00 Valiant Motor Car SLU 502 899.00 Loadmaster Trailer TKU 526 526.00 Utility ULK 381 2,440.00 $9,850.00. 16. For a number of reasons, the depreciated value also might not represent market value. It depends on the rate of depreciation and many other factors. Mr Mount also gave evidence, which I accept, that in the course of a telephone conversation on 6 June 1991 he had a telephone conversation with Mr Frick in the course of which they spoke about the agreement of 1 July 1990. Mr Frick then claimed that the value of the Mack Prime Mover was $60,000. The evidence as to value is quite unconvincing and unreliable. I have no regard to it. 17. There is no other document evidencing the transfer of the vehicles from Evening Light to Mr Frick. Mr Frick said that shortly after 7 July 1990 he had entered into an agreement by which he had hired these four vehicles and other vehicles from Evening Light. However, the agreement was not produced despite the fact that since 11 June 1991 the solicitors for the liquidator had been requesting a copy of it. I find that there was no such hiring agreement. 18. Mr Frick said that the agreement and the acknowledgment were both executed on 1 July 1990, the date which each document bears. He said they were executed at the beginning of the new financial year for taxation reasons. He said that his accountant, who was not named, had given him advice "to take the money out and square up the debt". The agreement and acknowledgment have both been typed on the letterhead of Evening Light. I find that Mr Frick prepared and Ms Schefe typed both documents. 19. In 1990, 1 July fell on a Sunday. Mr Frick said that he usually worked on Saturdays and Sundays loading semi-trailers, that both his brother and sister had come to the office of the company and signed the documents, and that Mr Schefe, who was also working on that day, had witnessed the documents. He did not explain how it was that his brother had come to the office to sign the documents nor how it was that his sister had come from Port Pirie to do so. There was no suggestion that a meeting had been appointed for that purpose. 20. Mr Mount disputes the fact that the agreement and acknowledgment were executed as alleged and, in particular, says that, although the documents purport to be signed by Mr David Frick and Mrs K. Smith, they were not signed by either of them. Mr Mount relies on what was said by Mrs Smith to Mr Hall on 27 June 1991 and what was written by her on two documents on the same day. The evidence relating to these matters is as follows. 21. In the course of assisting Mr Mount in his administration of the winding up, Mr Hall telephoned Mrs Smith on 25 June 1991. Mrs Smith has resided at Port Pirie for many years and resided there in June and July 1991. Mr Hall asked Mrs Smith in her capacity as a director and the secretary of Evening Light for information concerning Evening Light. Mrs Smith explained that she had had little to do with the company since about mid-1989, when she had given all of the company's books and records to her brother, Mr Lyndon Frick. She explained that she had then left the whole of the management and administration of the company to him. She said she had little knowledge of the affairs of the company since that date. I find that, when Mr Hall telephoned her on 25 June 1991, Mrs Smith told him that she knew little about the company and was unable to complete a report as to the company's affairs. She then described herself as being "totally in the dark" about Evening Light. In the course of the conversation, she said that she knew nothing about any agreement whereby Evening Light had transferred certain vehicles to Mr Frick in discharge of the loan to Mr and Mrs Frick. She said that she had not seen Mr Frick for over twelve months. She also expressed a degree of ill-will towards with her brother. Later that day, Mr Hall arranged to meet Mrs Smith in Port Pirie to speak further with her. 22. On 27 June 1991, Mr Hall visited Mrs Smith in her house at Port Pirie. He had with him a pro-forma questionnaire for completion by directors and other officers of a company in liquidation. He asked Mrs Smith to complete it. Mrs Smith replied to most of the questions by stating she did not know the information sought. For example, she did not know who were the company's bankers, who prepared the company's books or income tax returns, who were the company's accountants, when accounts were prepared, and the like. At the end of the questionnaire, she wrote under the heading "Any Other Relevant Information" the following:
    "All assets belonged to Evening Light up to late '89.
    Including trucks and trailers. After this time all books were
    removed from my premises. I have only seen Lyndon early 1990
    when he asked for deeds for my home and May 1991 when he told me
    about the liquidation. I was told that my deeds would be used
    as a guarantee for money for the company." 23. Mrs Smith then dated and signed the document. Mr Hall also showed Mrs Smith a copy of the agreement and acknowledgment dated 1 July 1990. He asked her if she had signed them. Mrs Smith obtained a copy of her Bankcard. After comparing her signature on her Bankcard with what purported to be her signature on each document, she endorsed a copy of the agreement with the words "I do not believe either of the signatures to be mine". She signed and dated the endorsement. In her evidence she explained that the expression "either of the signatures" referred to what purported to be her signature on both the acknowledgment and the agreement. 24. By letter dated 12 July 1991 and addressed to Mr Hall, Mrs Smith recanted what she had told him on 27 June. Mr Hall received the letter on 18 July. The letter reads:
    "Dear Sir,
    In relation to the document dated 1 July 1990 of Evening Light
    Pty Ltd where my signature appears signing over 4 Vehicles to LR
    and SJ Frick as payment in lieu of monies owed.
    Please be advised that the said statement made prior by me that
    the signature of K.G. Smith was not my signature may be an
    error on my part and I am unable to state categorally (sic) that
    the signature is not mine. I have had disscussions (sic) with
    the witness about the documents and am now convinced that the
    signature may be mine and it was an error on my part to state
    other wise.
    My apologies for any inconvenience this may have caused and I
    trust this now rectifies the matter and proves the validity of
    the document." 25. The letter contains two curious expressions. Instead of simply stating that on 12 July she believed that she had signed the agreement dated 1 July 1990 and that she then identified her signature, Mrs Smith expresses her views in a qualified and hesitant manner. I refer in particular to the expressions "I am not unable to state categorally that the signature is not mine" and "am now convinced that the signature may be mine". Both statements are not at all convincing and are not clear unequivocal assertions of a different state of facts from what she had earlier told Mr Hall. When pressed on this in cross-examination, she attempted to explain the expressions used by saying she was not well educated and her command of English is poor. I found the explanation unconvincing. Making all allowances for any lack of education, I believe that she was capable of stating in much plainer and more direct and simple terms that she had signed both documents and that she had given incorrect information to Mr Hall on 27 June. 26. On 15 July 1991 the liquidator and his solicitor held a meeting with Mr Frick and his solicitor. In the course of the meeting, the execution of the documents on 1 July 1990 was mentioned. Minutes of the meeting were taken by Mr Hall. Those minutes note the discussion concerning the agreement in these terms: "In relation to the vehicle which was transferred on 1 July 1990 from the company to Mr Frick, Mr Maidment explained that Ms K Smith, the sister of Mr L Frick, was under stress as her husband had died and that she did sign the agreement." 27. (Mr Maidment was then acting as solicitor for Mr Frick.) In addition to calling Mrs Smith to prove the execution of the agreement, Mr Frick called Ms Schefe and also gave evidence himself on that topic. He said that he intended to call his brother Mr David Frick but Mr David Frick did not attend court or give evidence. 28. In her evidence, Mrs Smith did not dispute that, on 27 June 1991, she had completed the questionnaire handed to her by Mr Hall and had endorsed the agreement and acknowledgment with the words "I do not believe either of these signatures to be mine." She said, however, that at that time she was confused and was taking a lot of medication because her fiance had recently died. She said that, after she had seen Mr Hall on 27 June 1991, she had spoken to her brother and Ms Schefe and that they had refreshed her memory. Her evidence-in-chief is as follows:
    "Q. Did you let Michael Mount's office know shortly after that
    that you did sign that.
    A. Yes, after I'd spoken to the witness and also my brother, I
    spoke to them, they recalled my memory to the date, et cetera,
    where I had signed it and I did recall it then and I wrote to
him and told him." 29. She said that, after she had refreshed her memory in that way, she had written the letter dated 12 July to Mr Hall. In cross-examination she denied that her brother had suggested that she write the letter. She said that she and her brother, Mr David Frick, had earlier spoken in 1988 and 1989 about transferring the vehicles to Mr Lyndon Frick. The prime mover and the trailer had originally been owned by Mr Frick but he had some years earlier sold them to the company. She said that after speaking to Ms Schefe and her brother she had looked at her diary and had ascertained that she had gone to Adelaide on 1 July 1990 to see a medical practitioner. She said she could remember being in Adelaide on that day because of the appointment. The appointment was during the normal working week but she could not say what day of the week it was. She said that she had since lost her diary in a flood. She called in to the office of Evening Light on her way back to Port Pirie. Mr Lyndon Frick and Ms Schefe were present when she signed the document. She could not remember whether Mr David Frick was also there. She said that her fiance was also present in the office. The meeting on 1 July 1990 had not been arranged. Mrs Smith said that she saw the agreement on the table and had signed it, having first ascertained that it was an agreement transferring the vehicles to Mr Frick. 30. Ms Schefe has been living in a de facto relationship with Mr Frick since December 1990. She was quite positive that the agreement and the acknowledgment had both been signed by all parties on 1 July 1990. She said that she would not have dated the documents 1 July 1990 unless they had been signed on that day. She had no recollection of the day of the week when the documents were signed but said that they could have been signed on the Sunday as the office of Evening Light was open on Sundays, when staff were engaged in loading trailers. She said that Mr David Frick had signed the documents during the morning and Mrs Smith had signed them at mid-afternoon on the same day. 31. I do not accept the evidence of Mrs Smith and Ms Schefe that Mrs Smith signed the documents and signed them on 1 July 1990. I find that the true position is what Mrs Smith told Mr Hall on 27 June 1991 and that Mrs Smith did not sign either the agreement or the acknowledgment. 32. Mrs Smith was an unsatisfactory witness. It was clear that she was a reluctant witness doing her best to protect her brother while not implicating herself. Her evidence contains at least one palpable falsehood, namely, that her fiance was with her when the documents were signed. Her fiance had died in March 1990. Further and perhaps more significantly, her evidence that she had been to see a medical practitioner on the day she signed the agreement is completely at odds with the fact that the agreement is dated 1 July 1990, a Sunday. According to Ms Schefe, each of the parties to the documents signed both documents on the same day and she witnessed their signatures and dated the documents. Obviously, if Mrs Smith had signed the documents on the same day as she had visited a medical practitioner, it would have been on an ordinary weekday and not on a Sunday. There is no room for error on this point as Mrs Smith said she had verified the date by checking her diary and Ms Schefe is positive the documents were signed on 1 July. There are other aspects of her evidence which do not have the ring of truth. I refer in particular to her evidence that she happened to call in at the office of Evening Light without any request to do so or without any prior appointment and that the documents were ready for signature by her. The co-incidence of a chance visit to the office and the readiness of the documents for signature is in my view scarcely credible. In addition, Mrs Smith agreed in the course of her evidence that what purports to be her signature on the agreement and on the acknowledgment does not look similar to her signature on either the questionnaire she completed for Mr Hall, on her endorsement on the copy of the agreement, or at the foot of her letter to Mr Hall. Although Mrs Smith is not a handwriting expert, she is the best person to recognise her own signature. Her evidence points to the conclusion that what she told Mr Hall on 27 June was correct. 33. It is also to be noted that the evidence Mrs Smith gave as to her reason for her faulty recollection on 27 June 1991 of the events concerning the execution of the documents was the fact that she was suffering from stress in consequence of the death of her fiance. That is the same reason as was given by Mr Frick at the meeting with the liquidator on 15 July 1991. But, as already mentioned, her fiance had died some 15 months earlier in March 1990. 34. As Mrs Smith said, she had spoken to her brother after she had seen Mr Hall. It is reasonable to infer and I find that she had spoken to him before she had written the letter of 12 July. It is reasonable to infer also that her brother asked her to write and withdraw her statement that she had not signed the agreement and the acknowledgment and I so find, despite her evidence and Mr Frick's evidence to the contrary. It is not necessary to find whether she and her brother had then decided upon the explanation which they would give for her faulty recollection. It is sufficient to note that the explanation was quite at odds with the facts. 35. Stamp duty had not been paid on either the agreement or acknowledgment on which Mr Frick relied. They could not, therefore, be admitted into evidence: see s.22 of the Stamp Duties Act 1923. I granted Mr Frick an adjournment to enable him to stamp the documents. The documents were ultimately stamped. It might be said that the fact that Mr Frick had paid stamp duty of $570 and a penalty of $570 for late stamping points to the conclusion that the documents were in truth executed by all of the parties therein named. That fact must be weighed with the fact that Mr Frick had been informed that he could not tender the documents until the stamp duty was paid. Mr Frick had no alternative but to pay stamp duty if he was to have any prospect of seeking to establish his claim that Evening Light had transferred the vehicles to him. The payment of stamp duty does not, I think, assist in resolving any issues in favour of Mr Frick. 36. I find, therefore, that the agreement was not executed by Mrs Smith. Mr David Frick was not called to prove his signature. It is unnecessary, however, to determine whether or not he signed the documents. There is no evidence of any resolution of the board of directors to transfer the vehicles to Mr Frick. In the absence of such a resolution and given that Mrs Smith did not sign the agreement, there is no valid agreement transferring the vehicles from Evening Light to Mr Frick. The vehicles, the subject of the agreement are, therefore, the property of the company. I should add that, given the seriousness of the allegations made by the plaintiff, I have been particularly concerned that I should be reasonably satisfied that the plaintiff has proved its case: cf. Briginshaw v Briginshaw (1938) 60 CLR 336. 37. I accept that what Mrs Smith freely and voluntarily told Mr Hall on 27 June is correct. Nothing was adduced which displaced what she then said. Indeed, what was adduced contains the inconsistencies to which I have referred. 38. I turn to the remaining two trailers. These are large trailers towed by a prime mover. The evidence concerning them is essentially documentary. The cash book of Evening Light shows that in the case of four cheques drawn in October and November 1990 the name of the payee has been covered by use of a white-out paste and over it the name "L. Frick" has been written. The four cheques were obtained from the bankers for Evening Light. All cheques were drawn on the account of Evening Light. The cheques and the respective payee in chronological order were as follows: Date of Cheque Payee Amount 6/10/90 W. Bunker $ 1,000.00 15/10/90 W. Bunker 1,000.00 7/11/90 San Trans Pty Ltd 21,750.00 27/11/90 ANZ Bank 6,253.50 $30,003.50. 39. A copy of an invoice was produced from the records of Bunker Transport Pty Ltd by one of its employees which refers to the purchase of the two trailers. It bears an endorsement to the effect that the amount due was paid on 21 November 1990. The invoice is dated 5 October 1990 and is addressed to Evening Light Pty Ltd. The document lists the manner in which payment was to be made. The relevant part of the invoice reads: "PURCHASE OF TWO (2) ONLY SECONDHAND LOADMASTER TRAILERS INCLUDING GATES BUT NO TARPS. SERIAL NO. 4724 REGO NO.TKV 752 15000.00 SERIAL NO. 7426 REGO NO.TKV 754 15000.00 30000.00 LESS DEPOSIT 2000.00 TOTAL AMOUNT PAYABLE 28000.00 LESS PAYMENT REC 21750.00 TOTAL AMOUNT PAYABLE 6250.00 PAID 21/11/90" 40. It is not clear whether the document is inaccurate in stating that the amount due was paid on 21 November 1990. However, on any view, the method of payment recorded in the invoice accords with the cheques drawn on the account of Evening Light. I find that the entries made in the cash book misrepresent the position. Indeed, Mr Frick conceded as much in his evidence. The two cheques, each for $1,000 and drawn in favour of Mr Bunker, were for the deposit for the trailers. The cheque drawn in favour of San Trans Pty Ltd has been credited to the account and is the payment of $21,750 referred to on the invoice. The evidence was that the payee on the fourth cheque was the ANZ Bank so that funds would be credited and a bank cheque could be drawn in favour of Bunker Transport Pty Ltd for the final payment of $6,500. The sum of $3.50 was the fee for the bank cheque. The fourth cheque, therefore, accords with the fourth payment in the invoice. 41. Mr Frick said that he had paid $68,000 being the proceeds of an insurance claim into Evening Light and had used part of that money to pay for the trailers. That is the reason he gives for the fact that the cheques were drawn on the account of Evening Light. He was unable to prove the payment of the proceeds of the insurance claim into the company's bank account. In any event, I do not think that, at that stage, he would have paid such a large sum to the company. At that time the company owed him substantial amounts of money and it is unlikely that he would have further increased its indebtedness to him. It is, I think, reasonable to infer that the company was then beginning to experience substantial financial difficulty thus making it even less likely for him to lend such a large sum to the company. 42. Mr Frick called Mr Bunker in an attempt to prove that it was he who had purchased the vehicles and not Evening Light. Mr Bunker produced a copy of a facsimile transmission dated 16 December 1991 to the effect that the two trailers had been sold to Mr Frick. Mr Bunker could not recall the circumstances of the original transaction. He said that he did not know whether the purchaser was Evening Light or Mr Frick. The facsimile transmission was prepared more than twelve months after the sale, almost seven months after Evening Light had been wound up, and at the request of Mr Frick. It has little, if any, probative value. I think it more appropriate to rely on contemporaneous documents, namely, the cheques and the invoice dated 5 October 1990 than on an ex post facto document prepared twelve months after the transaction. 43. I find, therefore, that the trailers were purchased for and on behalf of Evening Light and that Evening Light is the beneficial owner of the trailers. There will be a declaration that Evening Light Pty Ltd is the beneficial owner of the following vehicles: Mack Prime Mover Registered No UEY 718 Valiant Sedan Motor Car - SLU 502 Loadmaster Trailer - TKU 526 Utility - ULK 381 Loadmaster Trailer - TKV 752 Loadmaster Trailer - TKV 754.