Oliana Foods Pty Ltd v Culinary Co Pty Ltd (in liq)

THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2018 00116

OLIANA FOODS PTY LTD (ACN 140 768 716)	Plaintiff
v
CULINARY CO PTY LTD (ACN 612 529 781) (IN LIQUIDATION) (and others according to the schedule)	Defendants

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JUDGE:	Connock J
WHERE HELD:	Melbourne
DATE OF HEARING:	17–20 and 24–28 February 2020; 2–3 and 17–18 March 2020. Further materials 23 and 26 March 2020.
DATE OF JUDGMENT:	21 October 2020
CASE MAY BE CITED AS:	Oliana Foods Pty Ltd v Culinary Co Pty Ltd (in liq)
MEDIUM NEUTRAL CITATION:	[2020] VSC 693

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DIRECTOR OR OFFICER – De facto director – Officer – Acting as director – Participating in decisions – Director and officer after resignation – Applicable principles – No change in role post resignation.

DIRECTOR’S AND OFFICER’S DUTIES – Sections 180, 181, 182 and 183 of the Corporations Act 2001 (Cth) – Care and diligence – Good faith and best interests of the company – Proper purpose – Improperly using position as director to gain advantage – Improperly use information obtained as a director to gain advantage – Breach of director’s duty – Corporate opportunity.

COMPENSATION ORDER s 1317H Corporations Act 2001 (Cth) – Breach of director’s and officer’s duties – Damage suffered – Applicable principles.

FIDUCIARY DUTY – Breach of fiduciary duty by director and officer – Fiduciary role to secure corporate opportunity – Conflict between duty and interest – Profiting from fiduciary role – Informed consent – Company constitution disclosure provisions.

EQUITABLE COMPENSATION – Applicable principles – Breach of fiduciary duty – Election – Causation.

ACCOUNT OF PROFITS – Breach of fiduciary duty – General principles – Election – Timing of election.

MISLEADING OR DECEPTIVE CONDUCT – Australian Consumer Law ss 18 and 236 – Applicable principles – Misleading conduct and representations related to corporate opportunity – Loss and damage – Causation proving counterfactual – Hypothetical as to what would have occurred – Onus of proof not satisfied – Knowing involvement.

BREACH OF WARRANTY OF AUTHORITY – General principles – Authorised representative and lawyer representation – Not authorised – Damages – Contractual measure – Breach of warranty of authority.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Robins QC and Mr N Elias	Sinisgalli Foster Legal
For the Fourth Defendant	Mr J Podaridis	McDonald Legal
For the Seventh Defendant	Mr I Percy	Davis & De La Rue

TABLE OF CONTENTS

Introduction and summary............................................................................................................ 1

Background .................................................................................................................................... 6

Witnesses .................................................................................................................................. 49

Agreed list of issues...................................................................................................................... 68

Mr Floropoulos — a de facto director or officer of Oliana?.................................................... 71

Breach of director’s statutory duty claims............................................................................... 120

·Submissions and conduct relied on....................................................................... 122
·Breach of s 183 of the Act....................................................................................... 131
·Breach of s 182 of the Act....................................................................................... 139
·Breach of s 180 of the Act....................................................................................... 143
·Breach of s 181 of the Act....................................................................................... 147

Damage claimed under s 1317H of the Act............................................................................. 154

Breach of fiduciary duty claims................................................................................................. 167

Equitable compensation and account of profits...................................................................... 186

Misleading or deceptive conduct claim against Mr Floropoulos......................................... 196

·Principles and observations................................................................................... 198
·Context and circumstances.................................................................................... 206
·Exclusive Distributor Representation.................................................................... 229
·Authority Representation....................................................................................... 252
·Binding Agreement Representation....................................................................... 263
·Australian Subsidiary Representation................................................................... 268
·Price Representation............................................................................................... 273
·Loss and damage.................................................................................................... 280
oPrinciples and observations....................................................................... 281
oSubmissions................................................................................................ 289
oConsideration............................................................................................. 293

·Knowing involvement by Mr Hone in the conduct of Mr Floropoulos................ 307

Misleading or deceptive conduct claims against Mr Hone and Culinary Co.................... 308

·Submissions............................................................................................................ 311
·Exclusive Distributor Representation.................................................................... 320
·Authority Representation....................................................................................... 329
·Binding Agreement Representation....................................................................... 330
·Loss and Damage................................................................................................... 332
·Knowing involvement by Mr Hone in conduct of Culinary Co............................ 333
·Knowing involvement by Mr Floropoulos in conduct of Mr Hone and Culinary Co 334

Breach of warranty of authority claim against Mr Hone....................................................... 334

·Submissions............................................................................................................ 334
·Principles and observations................................................................................... 339
·Consideration......................................................................................................... 344
·Loss and damage.................................................................................................... 351

Other matters................................................................................................................................ 354

Conclusion ................................................................................................................................ 354

List of Defined Terms & Named Persons................................................................................ 357

Annexure A — Oliana Payments Schedule............................................................................. 359

Schedule of parties...................................................................................................................... 361

HIS HONOUR:

INTRODUCTION AND SUMMARY[1]

[1]This brief introduction and summary is to be read and considered with the reasons that follow it. It is not intended to be a complete summary of the many factual and legal issues arising.

The plaintiff, Oliana Foods Pty Ltd (Oliana),[2] is a relatively small company that carries on the business of importing and distributing food products to supermarkets and other retail outlets. Mr Canzoneri is Oliana’s managing director and has a material ownership interest in Oliana. The seventh defendant, Mr Floropoulos, is a former long-time director of Oliana and has a material Oliana ownership interest. Prior to the dispute the subject of this proceeding Mr Floropoulos and Mr Canzoneri were close friends.
[2]Formerly SMV Traders Pty Ltd.

The dispute relates to the supply to and distribution by Oliana of vegan cheese products manufactured by a Greek company, Kremel AE (Kremel). At the factual core of Oliana’s claims are allegations that Mr Floropoulos:

(a) was a de facto director, officer, and fiduciary of Oliana responsible for sourcing an alternate supplier of vegan cheese for Oliana to replace Oliana’s then long-term supplier who, so Oliana and Mr Floropoulos had discovered in March or early April 2016, was making a very substantial margin on the prices it charged Oliana when compared to the prices it paid its own Greek manufacturer;

(b) travelled to Greece on behalf of Oliana in late May 2016, identified Kremel as a suitable alternative manufacturer/supplier of vegan cheese products, and negotiated and agreed a very favourable Kremel supply price for Kremel vegan cheese, but did not disclose this price to Mr Canzoneri or anyone else at Oliana;

(c) with the co-operation and assistance of the fourth defendant, a solicitor, Mr Hone, interposed a company in between Kremel and Oliana (being the first defendant, Culinary Co) to obtain the supply of vegan cheese products direct from Kremel and on sell them to Oliana at a substantially marked-up price without Mr Canzoneri and Oliana’s knowledge;

(d) together with Mr Hone, conducted himself in a way that conveyed to Oliana that Culinary Co was ownership and otherwise linked to Kremel and that the Culinary Co supply price to Oliana was in fact the favourable Kremel supply price rather than the different undisclosed materially higher price set by Mr Floropoulos for Culinary Co that was designed to achieve an uplift for the benefit of Mr Floropoulos and Culinary Co without Mr Canzoneri’s or Oliana’s knowledge.

In the context of the above allegations Oliana pressed a number of claims seeking damages and other relief against Mr Floropoulos, namely: breach of statutory duty claims based upon an allegation that Mr Floropoulos was a de facto director or officer of Oliana; breach of fiduciary duty claims based upon Mr Floropoulos owing fiduciary duties to Oliana by reason of his position as a de facto director and officer of Oliana, and by reason of his role and responsibilities in connection with securing an alternative supply of vegan cheese for the benefit of Oliana; and claims that Mr Floropoulos engaged in misleading or deceptive conduct and was involved in conduct of that character engaged in by Mr Hone and Culinary Co.

As against Mr Hone, Oliana pressed claims seeking damages and other relief against him on the basis that Mr Hone: engaged in misleading or deceptive conduct; was involved in conduct of that character engaged in by Mr Floropoulos and Culinary Co; and was liable to Oliana for breach of warranty of authority as a result of representations made by him regarding his authority to act on behalf of Kremel in connection with the appointment of Oliana as Kremel’s exclusive distributor of its vegan cheese products in Australia and New Zealand.

Culinary Co was placed into liquidation well before the commencement of the trial and the claims against it were stayed by operation of law. No application for leave to proceed against Culinary Co was made. Culinary Co’s conduct was said by Oliana to have remained relevant because of Oliana’s knowing involvement claims against Mr Hone and Mr Floropoulos.[3]
[3]Culinary Co was not represented at trial.

Mr Floropoulos and Mr Hone denied that they were liable as alleged or at all.

Mr Floropoulos relied upon, among other things: his recorded resignation as a director in February 2016; alleged conversations said to have occurred with Mr Canzoneri prior to his trip to Greece in May 2016 about being able to obtain benefits for himself; a claimed absence of a fiduciary relationship; some factual matters that he denied and others that he alleged; a claimed absence of misleading or deceptive conduct; an alleged absence of reliance by Oliana; and an alleged failure on the part of Oliana to establish that the conduct it relied on had caused it the loss claimed in any event.

The matters relied upon by Mr Hone included: acting as and being seen to have acted as a ‘mere conduit’ in relation to the conveying of information; a claimed absence of misleading conduct at any material time after 7 June 2016; having acted honestly and reasonably and made all reasonable enquiries; a claimed absence of reliance by Oliana; challenges to the breach of warranty of authority claim, including in relation to reliance and damage; and an alleged failure of Oliana to establish that the conduct it relied upon caused the loss claimed.

For the reasons that follow, I have concluded that:

(a) Mr Floropoulos was a de facto director and officer of Oliana after 26 February 2016 and was subject to the statutory duties imposed on such directors and officers by ss 180, 181, 182 and 183 of the Corporations Act 2001 (Cth) (Act).

(b) Mr Floropoulos was a fiduciary of Oliana in his role as a de facto director and officer of Oliana and he owed fiduciary duties to it in connection with his role and responsibilities in seeking to source and secure an alternative manufacturer/supplier of vegan cheese for the benefit of Oliana.

(c) Irrespective of his position as de facto director and officer of Oliana, Mr Floropoulos was in a fiduciary relationship with Oliana and owed fiduciary duties to it by reason of his role and responsibilities in connection with the sourcing and securing of an alternative manufacturer/supplier of vegan cheese for the benefit of Oliana.

(d) Mr Floropoulos breached the statutory duties under the Act that he owed to Oliana. Even if it had not been determined that Mr Floropoulos was a director of Oliana after 26 February 2016, he would have breached his duty to Oliana under s 183(1) of the Act by reason of his improper use of information obtained because he had been a director.

(e) Mr Floropoulos breached the fiduciary duties he owed to Oliana.

(f) Mr Floropoulos engaged in misleading and deceptive conduct of the kind alleged by Oliana in contravention of s 18 of the Australian Consumer Law (ACL).

(g) It is not necessary to determine whether Mr Floropoulos was a person involved in any misleading or deceptive conduct of Mr Hone or Culinary Co.

(h) Subject to addressing with the parties the issue of election in connection with Oliana’s alternative claim for an account of profits:[4]
[4]And the operation of the principles against double recovery.

(i) Oliana is entitled to an award of compensation against Mr Floropoulos pursuant to s 1317H of the Act of the amount claimed by Oliana, being an amount equal to what is defined later in these reasons as the ‘Oliana Loss Amount’.[5]
[5]But subject to clarifying a small matter of arithmetic with the parties in relation to the Oliana Loss Amount.

(ii) Oliana is entitled to an award of equitable compensation from Mr Floropoulos of an amount equal to the Oliana Loss Amount.

(i) Although Oliana established that Mr Floropoulos engaged in misleading and deceptive conduct and that Oliana relied upon that conduct, Oliana did not establish that the loss and damage claimed by it in respect of that conduct was suffered because of that conduct. Consequently, Oliana is not entitled to damages or compensation from Mr Floropoulos pursuant to s 236 or s 238 of the ACL.

(j) Mr Hone engaged in misleading and deceptive conduct of the kind alleged by Oliana in contravention of s 18 of the ACL.

(k) It is not necessary to determine whether Mr Hone was a person involved in any misleading or deceptive conduct of Mr Floropoulos or Culinary Co.

(l) Oliana has established that Mr Hone is liable to it for breach of warranty of authority in respect of his claimed authority to act on behalf of Kremel in connection with the appointment of Oliana as Kremel’s exclusive distributor of its vegan cheese products in Australia and New Zealand.

(m) Oliana is entitled to damages from Mr Hone for breach of warranty of authority of an amount equal to the Oliana Loss Amount.[6]

(n) Although Oliana established that Mr Hone engaged in misleading and deceptive conduct and that Oliana relied upon that conduct, Oliana did not establish that the loss and damage claimed in respect of that conduct was suffered because of that conduct. Consequently, Oliana is not entitled to damages or compensation from Mr Hone pursuant to s 236 or s 238 of the ACL.

[6]But subject to clarifying a small matter of arithmetic with the parties in relation to the Oliana Loss Amount.

BACKGROUND

Oliana sources food and beverage products from Australian and overseas suppliers and distributes them to retail outlets and distributors in Australia. Mr Sebastian Canzoneri is Oliana’s managing director. Apart from a short time in 2012, he has been a director of Oliana since April 2011.

Mr Canzoneri and Mr Bill Floropoulos first met in 2011 at a football function. At that time Mr Floropoulos had a travel business, Luxe Travel Pty Ltd. They discussed Oliana’s food distribution business and Mr Floropoulos spoke of his Greek heritage, his connections in Greece and how he might be able to arrange meetings that might enable Oliana to enter into agreements with new suppliers for products from Greece, including vegan feta cheese. From about that time Mr Canzoneri used Mr Floropoulos’ travel agency and a friendship developed. Later that year Mr Canzoneri asked Mr Floropoulos if he wanted to join Oliana and he said that he did, and paid $25,000 to Oliana in order to become one of its four ‘partners’. The other partners were Mr Canzoneri, Mr Morris Italia and Mr Vincenzo Gianfriddo. As a result of an issue arising in the partnership regarding the activities of Mr Italia and Mr Gianfriddo, they ceased to be directors on 6 October 2011 and transferred their shares in Oliana to Mr Canzoneri.

Mr Floropoulos was appointed as a director on 6 October 2011. Although Mr Floropoulos is recorded as ceasing to be a director on and from 26 February 2016, in this proceeding Oliana contended that he continued as a de facto director, or an ‘officer’ of Oliana, from February 2016 until late December 2017 or early January 2018. Mr Floropoulos denied this and said that he ceased being a director or officer[7] of Oliana on 26 February 2016. Whether Mr Floropoulos was a director or officer of Oliana after February 2016 is one of the issues addressed later in these reasons.
[7]Within the meaning of those expressions as used in s 9 of the Corporations Act 2001 (Cth) (the Act).

Although there were some contested factual matters between the parties,[8] there was a large measure of common ground or agreement regarding the background and sequence of events, as was reflected in the revised agreed chronology of relevant facts and events provided to the Court during oral closing submissions (Agreed Chronology), and many of the documents in the court book. It is of assistance to the comprehension of the later consideration and analysis of the many issues in this proceeding to understand that the relevant background included the following.
[8]Which are addressed later in these reasons.

Oliana is the trustee of the SMV Traders Unit Trust (SMV Trust). Sixty-two and a half per cent of the units in the SMV Trust are owned by one of Mr Canzoneri’s companies, Boriop Pty Ltd, 25% are owned by Mr Floropoulos, 10% are owned by Mr Canzoneri’s brother’s company, Victory Ridge Pty Ltd, and the remaining 2.5% of units are owned by a third party. Oliana has 900 fully paid shares on issue and paid up capital of $900. Mr Canzoneri owns 780 of the shares (86.6%) and Mr Floropoulos owns the remaining 120 shares (13.33%).

Mr Canzoneri described his role as largely overseeing the financial aspects of the company, overseeing sales along with Mr Floropoulos and basically ensuring that the company had the funds to be able to operate. He said one of Mr Floropoulos’ primary responsibilities was to ensure he got supplies for Oliana and negotiated the deals in order to have continuing supply. He said Mr Floropoulos had authority to enter into supply arrangements until late 2017.

Greek-supplied food products became a very important part of Oliana’s products. Prior to Mr Floropoulos becoming involved, they were described as forming a very minimal part of Oliana’s business, but they subsequently became substantial, being about 70% or 75% of Oliana’s product range. One of the early matters attended to by Mr Floropoulos was obtaining a vegan Greek feta cheese for Oliana to distribute, which had been the subject of discussion prior to Mr Floropoulos being invited to join Oliana.

Mr Floropoulos always had an office at Oliana, although he worked somewhat irregular hours and was frequently travelling. He and Mr Canzoneri became good friends and would communicate frequently together, typically quite informally. Many face-to-face discussions occurred over coffee, and they also communicated with each other by frequent text messages, some emails, and over the telephone.

Mr Floropoulos’ role was to manage and control supply arrangements between Oliana with suppliers, particularly Greek suppliers, which ultimately included Kremel. Kremel was the manufacturer and supplier of vegan cheese products at the heart of the dispute the subject of these proceedings.

Obtaining and maintaining supply agreements or arrangements with supermarkets was an important aspect of Oliana’s business, and during his time at Oliana Mr Floropoulos was involved in this process. The supermarkets to whom Oliana supplied goods at different times included Woolworths, Coles and a network of independent IGA stores. Oliana also supplied products to independent delicatessens and other stores.

There was no formal agreement in place between Oliana and Mr Canzoneri or Mr Floropoulos. They operated largely informally. Mr Canzoneri said there were no salaries as such but that payments were made to each of Mr Canzoneri, Mr Floropoulos and their respective wives. During the period 13 May 2015 to 22 December 2017 Mr Floropoulos’ wife, Ms Nikki Floropoulos, received 44 separate payments by electronic funds transfer totalling $55,250. With the exception of one payment of $1,500 in May 2015, all other payments were in the amount of $1,250. For the period from 11 December 2015 to 31 March 2017, Mr Floropoulos received 30 separate payments totalling $45,250. Except for two payments of $10,000 in January and March 2016, and a payment of $5,000 in June 2016, each payment to Mr Floropoulos was $750.

Mr Floropoulos received other benefits through Oliana. Relevantly, these included a BMW motor vehicle provided to Mr Floropoulos and a Porsche Cayenne four-wheel-drive motor vehicle for Ms Floropoulos (Porsche). The Porsche was purchased by Oliana through a finance arrangement. Mr Canzoneri said that payments on the lease continued to be made by Oliana until December 2017 or January 2018. The Porsche was not returned to Oliana by Mr Floropoulos or Ms Floropoulos and Mr Canzoneri understood it to have been repossessed.

On 20 July 2012 Mr Floropoulos executed, on behalf of Oliana, an agreement with Woolworths in relation to the supply of halloumi cheese.

On 18 July 2013 Oliana was invoiced for the Porsche provided to Ms Floropoulos. Mr Canzoneri was named as guarantor on the chattel mortgage agreement for the Porsche.

In 2014–2015 Mr Robert Wyner commenced to carry out work for Oliana through his company Foods International Pty Ltd (Foods International). He worked closely with Mr Floropoulos in trying to introduce Oliana products in Woolworths and Coles.

Mr Canzoneri said that in about early 2016 Oliana was undertaking some vehicle financing, and towards the middle of 2016 it was undertaking some financing for working capital. With respect to the vehicle financing he said the financiers sought security over the relevant vehicle and also directors’ guarantees. He said that he approached Mr Floropoulos and told him that they needed to be guarantors, and Mr Floropoulos said that he did not want to be a guarantor and that he could not do it. Mr Canzoneri gave evidence that he said to Mr Floropoulos that the only way that could occur was if ‘[y]ou come off as a director. So it was then agreed that he would come off as a director for the purpose, and then get back on as a director.’[9] He said that Mr Floropoulos agreed.
[9]T 239:17–24.

There were no documents in evidence regarding the vehicle financing, the purchasing of a vehicle, guarantees, or vehicle refinancing at that time.

Mr Floropoulos said differently. He denied that there was a discussion of the kind referred to by Mr Canzoneri. He said that the prospect of his resigning as director was first raised in late 2015 or early 2016, in circumstances where he said he did not want ‘to do this anymore’ and that his health was and had been poor. Mr Floropoulos said that because of this he said to Mr Canzoneri that he should resign and just take it easy and relax, and that Mr Canzoneri agreed.

When asked whether this discussion spanned one or more conversations, Mr Floropoulos said that there were many conversations. He said that the reason he felt that way was that his sister had passed away in 2012 and he did not want to face the same fate that she had. He said that he thought the best thing to do was to just stop and slow down. He said he then took a holiday in Hawaii and had a further conversation with Mr Canzoneri about his future when he returned from Hawaii. He said that he told Mr Canzoneri that he wanted to resign as a director, that he had had enough, and that Mr Canzoneri had ‘no issue’ with that. He added that Mr Canzoneri seemed ‘excited’ that Mr Floropoulos was coming off as a director.

When asked whether there was any discussion about the terms of his leaving, Mr Floropoulos said that he told Mr Canzoneri that he would ‘be there to help him’ when needed. Although he had earlier said Mr Canzoneri had said to him he could have use of the Porsche, he said there was no discussion about the return of the cars, the money that he had received and was receiving, or the money that was being paid to his wife.

With respect to his ongoing involvement with Oliana, when asked what he was doing, Mr Floropoulos said that he was not doing a lot but just helping wherever he could. He said that this came about because Mr Canzoneri would call him and ask him to help, which he said he was very reluctant to do but he did as a friend. He said that Oliana had a lot of issues making payments to suppliers, who would demand payment from it. He said that one of the things he helped with was dealing with these suppliers, as he had good relations with them.

These events regarding the circumstances leading to Mr Floropoulos’ resignation as a director of Oliana are addressed in more detail later in these reasons.

During Mr Floropoulos’ time with Oliana, he introduced Mr Canzoneri to Mr Terry Paule and what was described as Mr Paule’s company, My Life Co Pty Ltd (MyCo). Mr Floropoulos had known Mr Paule for over 20 years. Subsequent to Mr Floropoulos introducing Mr Canzoneri to Mr Paule, Oliana and MyCo entered into a supply arrangement pursuant to which MyCo started to supply a vegan cheese product branded ‘MyLife’ to Oliana. In turn, Oliana supplied that product to others, including IGA stores and Woolworths.

Mr Floropoulos is recorded as having resigned as a director from that 26 February 2016. He continued to manage Oliana’s Greek supply chain and do other things as will be seen and he and Ms Floropoulos continued to receive periodic payments and continued in possession of at least the Porsche leased by Oliana.

In the various text messages passing between Mr Canzoneri and Mr Floropoulos during the period 28 January to 29 February 2016 no mention is made of Mr Floropoulos’ resignation and there were text messages that sat in tension with that resignation.

On 3 April 2016, Mr Canzoneri confirmed by email to Mr Wyner and Mr Floropoulos that Mr Wyner had been appointed business development manager for Oliana, commencing on 4 April 2016. The primary objectives were stated to be to introduce new business and increase product lines with existing clients throughout the major chain category, and that the current major chain targets included Woolworths, Coles, Costco, Domino’s, Pizza Hut, Aldi, KFC, Nando’s, Subway and Crust Pizza. The email stated that Mr Wyner would be employed through his firm for two days per week and be paid a retainer of $60,000 per year, together with commission. The last two paragraphs of the email read as follows:

On a day-to-day basis, you will be responsible to Bill Floropoulos and will report to the Board of Directors on a monthly basis. As well as reporting on performance, you will be required to provide strategic advice and to create and implement a plan to facilitate the achievement of your primary objectives.
On behalf of Oliana and its directors, we are excited at the opportunities your appointment will provide and we look forward to working with you.

At the time of Mr Wyner’s appointment, a major supermarket chain being supplied by Oliana was Woolworths.

As at April 2016, Mr Canzoneri was not pleased with the price that it was paying MyCo for MyLife vegan cheese. He had also become aware of the significant margin that MyCo was making on the sale of MyLife vegan cheese to Oliana when compared to the price MyCo was paying its Greek supplier to manufacture and supply the vegan cheese to MyCo (MyCo Cost Price). Mr Canzoneri was particularly concerned and wanted to improve Oliana’s position swiftly. Mr Floropoulos conveyed that he was as equally surprised and incensed.

In this context a meeting was arranged with MyCo’s Mr Paule in order to try to obtain a contribution from MyCo for a promotion of Oliana’s products at Woolworths. The meeting was attended by Mr Canzoneri, Mr Paule, and Mr Floropoulos. Some heated exchanges occurred in which Mr Paule expressed, forcefully, that he was more concerned about the state of Oliana’s unpaid accounts with MyCo than assisting Oliana with promotional costs. It was clear that Mr Paule would not be making any contribution to Oliana. Mr Canzoneri said that on leaving the meeting he said to Mr Floropoulos in substance that he was going to Greece to find another supplier, but that Mr Floropoulos asked if he could do it, to which Mr Canzoneri agreed. Mr Floropoulos said otherwise, stating that Mr Canzoneri asked Mr Floropoulos to go to Greece to find another supplier for vegan cheese.

Mr Floropoulos said that in about early May 2016 he and Mr Canzoneri met at the Moka Pot Café to discuss the intention to find an alternative Greek supplier of vegan cheese, and Mr Floropoulos said that he agreed to find an alternative supplier but that if he was successful he expected something for himself. Mr Floropoulos said that Mr Canzoneri agreed to this as long as Oliana received a reliable alternative source of vegan cheese at a fair price. Mr Canzoneri denied that there ever was such a conversation. This factual matter was said by counsel for Mr Floropoulos to be the ‘critical issue’ and is addressed in more detail later in these reasons. As will be seen, I have concluded that it has not been established that such a conversation occurred.

On 25 May 2016 Mr Floropoulos travelled to Greece, where he met with Mr Paris Garakis[10] of Kremel, the manufacturer of vegan cheese and other products. Mr Floropoulos had already planned the trip to Greece, where he had a personal matter to attend to. Although Mr Canzoneri was generally aware that Mr Floropoulos had legal matters in Greece, he was not aware that he was going for that matter. Mr Floropoulos was overseas from 25 May to 1 June 2016.
[10]Who is also referred to as Paris Periandros in some documents. It was common ground that Paris Garakis and Paris Periandros are one and the same person.

On about 20 May 2016 Culinary Co was registered as an Australian company. Mr Ian Hone is recorded as the sole director, secretary and shareholder. Kremel had and has no interest in Culinary Co.

An offer of debtor finance facility for Oliana was made by Scottish Pacific Business Finance on 23 May 2016. The facility limit was specified at $2,500,000, with security to include a guarantee from Mr Canzoneri. Mr Canzoneri signed the acceptance of the offer on 24 May 2016.

Mr Garakis emailed Mr Floropoulos on 27 May 2016[11] referring to their meeting in Athens and his appreciation of Mr Floropoulos’ decision to visit Greece ‘… in order to finalise our cooperation …’. Mr Garakis stated that he had ‘… faith in our cooperation and a stable business relationship between us …’ and attached ‘… our best price, as discussed in Athens …’ (Kremel Supply Price). Reference was made to different forms of packaging and a request was made to ‘… indicate us the address you want the parcel to be sent …’.
[11]The attachment was not produced and was not in evidence.

The Kremel Supply Price was not made known to Mr Canzoneri or anyone else at Oliana.

There were telephone conversations between Mr Floropoulos and Mr Canzoneri whilst Mr Floropoulos was in Greece and shortly thereafter. As will be seen, during these conversations Mr Floropoulos spoke about Oliana becoming the distributor for Kremel’s products; Kremel setting up an Australian company to deal with Oliana; pricing; getting an agreement; and Mr Hone being the person who would be contacting Mr Canzoneri about the exclusive distribution agreement. These discussions are addressed in greater detail later in these reasons.

On 30 May 2016 Mr Floropoulos is recorded on the ASIC register as being re-registered as a director of Oliana. Mr Floropoulos denied ever agreeing to be reappointed as a director.

On 1 June 2016 Mr Floropoulos emailed Mr Garakis confirming that the vegan cheese samples should be sent to Mr Hone at Culinary Co. Mr Floropoulos did not use his Oliana email address for this email or any other email sent to Kremel, and he did not copy this or other emails or written communications sent by him to Kremel to any other Oliana representative or officer.

On 7 June 2016 Mr Floropoulos forwarded outer carton concept designs to Mr Garakis. Those designs showed products branded as Culinary Co with a packaging notation that they were distributed by Oliana Foods Pty Ltd. This packaging was not shared with Oliana at that time. Ultimately it was not used.

On 7 June 2016 Mr Hone sent an email to Mr Canzoneri referring him to an attached letter, which was recorded as being sent by ‘Ian Hone, Director, The Culinary Co Pty Ltd ACN …’. The attached letter was said by Oliana to be significant. It noted Mr Hone’s legal qualifications, was on letterhead showing an image of a gavel, and recorded the email address of Mr Hone as ‘[email protected]’. It was addressed to Mr Canzoneri care of Oliana Foods at Oliana’s office address and was in the following terms:[12]
[12]Footnote not in original.

Dear Mr Canzoneri,
I hereby confirm that I am the sole officeholder for Culinary Co Pty Ltd and also act as the legal representative for and on behalf of Culinary Co - Greece whose managing director is Mr Paris Periandros.[13]
As you are aware my clients have been in discussions with several other distributors throughout Australia.
I confirm that I have been instructed by Mr Periandros to cease all talks with these third party distributors and to now appoint Oliana Foods to be the new distributors with exclusive rights for Culinary Co and its various products for both Australia and New Zealand.
As per your prior discussion with Mr Paris Periandros of Culinary Co – Greece, in good faith he has commenced the preparation of your initial order you have provided as per product specifications.
Within the next 24 hours we will provide you with an invoice for deposit to be paid as per our agreement.
Yours sincerely
Ian George Hone
Director
For and on behalf of Culinary Co Pty Ltd.

[13]It was common ground that Mr Paris Periandros and Mr Paris Garakis are one and the same person.

By email of the same day Mr Canzoneri responded thanking Mr Hone for his email, stating that he looked forward to a ‘… long and mutual association …’ and asking that Mr Hone ‘…forward the agreement as soon as it is finalised…’.

What was not known to Mr Canzoneri or Oliana was that Culinary Co was not in any way linked to Kremel. In fact, prior to Mr Floropoulos leaving for Greece, Mr Floropoulos had set up Culinary Co and planned to interpose it between Oliana and the supplier Kremel so as to obtain a margin for the benefit of himself and Culinary Co.

On 7 and 8 June 2016 Oliana placed its first order with Culinary Co.

On 8 and 9 June 2016 Oliana received two invoices from Culinary Co, being invoices 00001 and 00002. Oliana paid $275,000 in respect of these invoices by payments made on 9 June 2016 ($75,000), 30 June 2016 ($100,000), 12 July 2016 ($50,000), and 5 August 2016 ($50,000).

Mr Damien Adams, who is Oliana’s supply manager, left Mr Floropoulos to be the sole person to deal with Kremel in respect of its orders. Except for one early order, Mr Adams did not deal thereafter directly with Kremel. Mr Adams said that he was told by Mr Floropoulos not to contact Kremel directly, as they did not speak English and Mr Floropoulos wished to avoid ‘communication issues’. Mr Adams gave evidence that this was an unusual request and that he habitually had direct contact with other Greek suppliers to Oliana. Mr Floropoulos denied that he ever instructed Mr Adams not to contact Kremel. This conflicting evidence is addressed later in these reasons. The evidence of Mr Adams is accepted.

During the period 12 to 23 June 2016 Mr Floropoulos was overseas in America, where he spent time with an accountant and, as it turned out, a business colleague, Mr Peter Delis. Mr Floropoulos and Mr Delis also spent four days in Los Angeles with Kremel’s Mr Garakis. It became apparent that Mr Floropoulos was also seeking to do business in America through another company, Telos Enterprises Pty Ltd (Telos).

During the period 5 to 19 July 2016 Mr Floropoulos was overseas in America.

On 6 July 2016 the ASIC register recorded Mr Floropoulos as again becoming deregistered as a director of Oliana. Mr Floropoulos said that he did not know that he had been put back on the register on 30 May 2016. Mr Canzoneri said otherwise.

Mr Floropoulos travelled to America during the periods 11 to 21 September 2016 and 12 October to 13 November 2016.

On 21 October 2016 Mr Floropoulos emailed Mr Garakis at Kremel from an email address for Telos and placed an order for 40 tonnes of Kremel product. He referred to the need for new artwork so as to get the project moving. The email was headed ‘OLIANA ORDER’ and had the words ‘Bill Floropoulos Managing Director’ at the end of the email. Kremel responded thanking ‘Bill and team’ for the order and addressed various logistical and packaging matters. Mr Floropoulos responded by email of 21 October 2016, again from his Telos email addressed to Kremel’s Mr Makrakis and Mr Garakis. The subject of the email was again ‘OLIANA ORDER’ and he said to Mr Makrakis that: ‘[f] or any work that is for Oliana please just email myself on this and Eleni’.

Eleni was a person external to Oliana who was assisting Mr Floropoulos with packaging.

On 24 October 2016 Kremel emailed Mr Floropoulos, at his Telos email address and a Gmail email address called ‘drbillsta’, a form described as a ‘… pro forma invoice of “Oliana Foods Pty Ltd”‘. That invoice recorded the buyer as Culinary Co and was addressed to the attention of Mr Hone. Mr Floropoulos responded that same day by email from his Gmail address with the subject recorded as ‘PRO FORMA INVOCE [sic]’. In that email, Mr Floropoulos stated that ‘the correct details for the Invoice are as follows’ and gave the purchasing company as Culinary Co with its address at Ricketts Road, Mount Waverley, with matters to be marked to the attention of Ian Hone. Mr Floropoulos also directed that ‘… all correspondence will only be emailed to me.’ A revised pro forma invoice was then sent by Kremel on 25 October 2016. None of this was known to Mr Canzoneri or Oliana.

A FaceTime call between Mr Floropoulos and Mr Garakis took place in Mr Canzoneri’s presence where Mr Floropoulos and Mr Garakis spoke in Greek only. Mr Canzoneri does not speak Greek. The Agreed Chronology initially recorded that after the call ended Mr Floropoulos informed Mr Canzoneri that Mr Garakis intended to instruct Mr Hone to prepare an exclusive distribution agreement. However, Mr Floropoulos was overseas in early November 2016 and Mr Canzoneri did not give a date for the FaceTime conversation and Mr Canzoneri’s evidence did not address what was said to him by Mr Floropoulos after the call. It became apparent though that Mr Hone was heavily involved with the exclusive distribution agreement.

On 17 November 2016 Mr Canzoneri texted Mr Floropoulos asking whether he had had a chance to speak to Mr Garakis about the agreement. Mr Floropoulos said in response that he would call him then. This and other text messages passing between Mr Floropoulos and Mr Canzoneri are addressed in more detail later in these reasons. Among other things they reveal that Mr Floropoulos was not being truthful in aspects of his dealings with Mr Canzoneri and Oliana.

On 21 November 2016 Mr Hone sent Mr Canzoneri a draft distribution agreement between Culinary Co and Oliana, noting that the product list needed to be added, which he was expecting to have to hand that day. Terms and features of that draft agreement included the following:

(a) It was entitled ‘Exclusive Distribution Agreement’ and it was said to be between Culinary Co as the company or supplier and Oliana as the distributor or wholesaler.

(b) It recorded that the company ‘manufactures and sells’ the products listed and that the distributor desired to purchase the products from the company for resale in the territory, being Australia and New Zealand.

(c) The company desired to appoint the distributor as its exclusive distributor in the territory.

(d) The company granted the distributor the exclusive right to sell and distribute the relevant products to the customers located in the territory (clause 1A).

(e) The territory was Australia and New Zealand (clause 1B).

(f) The prices would be as recorded in the schedule (clause 2B).[14]
[14]Which at that stage had not been provided.

(g) Payment was to be made by electronic transfer of at least 50% of the total order price upon receipt of a pro forma invoice with the remaining balance to be paid within 45 days of receipt of the products at the distributor’s facility.

(h) A minimum order clause requiring a minimum of two containers of products per calendar month, whether or not such volume was ordered, and that the distributor would be liable for an amount of 24 containers of the products per year on a take-or-pay basis.

(i) Execution clauses contemplating execution by Ian Hone for and on behalf of Culinary Co and execution by an Oliana representative for and on behalf of Oliana. This version of the draft agreement did not include Kremel as a party or make provision for execution by Kremel.

Mr Canzoneri forwarded the draft agreement to his son who was also Oliana’s solicitor, Mr Michael Canzoneri, and to Mr Floropoulos. A short time later, Mr Floropoulos texted Mr Canzoneri asking ‘… can you tell me what we need to ask to be changed or looked at … you know I don’t read every word …’, to which Mr Canzoneri responded: ‘[l] eave it until the morning. I’ll re-read it and so will Michael’.

On 23 November Mr Floropoulos texted Mr Canzoneri stating that:

dad spoke to Greece last night. I hope they got it what I was saying … we will see today hopefully we will get amended contract today

He stated further that he hoped they would get all the changes as he explained them and said he would call later.

Later that day Mr Hone sent an email to Mr Canzoneri attaching an amended document and in which he stated: ‘Sebastian, after discussions with Greece overnight please find amended document, product/price lists still to be added’.

This second draft of the distribution agreement, sent after what was said by Mr Hone to be ‘discussions with Greece overnight’, introduced Kremel as a named party. It recorded in the opening paragraph that Kremel was the Grantor, with Culinary Co being the company or supplier and Oliana being the distributor or wholesaler. It referred to Culinary Co, as the company, being the manufacturer and seller of the products ‘… for which it has been granted exclusive rights of distribution by the Grantor …’. It recorded the agreement as being for a three-year period, with a further two-year option period. Whilst it adjusted the minimum order to one container of products per calendar month, it retained references to two containers in other parts of the clause and the minimum total of 24 containers. It also contained a reference to 48 containers for the entire term of the agreement, although the term had been increased to three years. With respect to execution, it included an additional execution clause to allow for execution by Kremel. That execution clause was in the following terms: ‘Executed by Ian Hone For and on behalf of Kremel A.E.’.

Mr Canzoneri texted Mr Floropoulos informing him that he had received the agreement but that it was not totally changed and that it still contained a reference requiring Oliana to pay for 24 containers per year. By return text message and a number of subsequent text messages, Mr Floropoulos, using derogatory language about Mr Hone, told Mr Canzoneri to email Mr Hone to tell him that that was not what was agreed and to get him to make the changes and send it back. He also said that he was with his Dad and asked that the email contract be forwarded to him and they would call them now to get it sorted. Mr Canzoneri said that he had already sent it, but that he was going to go through it that evening and compare. Mr Canzoneri added that whilst there were 12 pages, the more he read it the more things were wrong. There was an issue at trial as to whether the document being discussed in this exchange was a draft of the exclusive distribution agreement. I have found that it was.

On 24 November 2016 Michael Canzoneri sent a revised draft to Mr Hone and stated in his email that he had attempted to incorporate all of the pertinent terms into Oliana’s standard distribution agreement, and invited Mr Hone to telephone to discuss, or otherwise mark up, any requested amendments or corrections and send them by return. Five minutes later Mr Hone responded saying thanks and stating, ‘I will obtain instructions and revert’.

Also on that day Mr Hone emailed Mr Floropoulos a copy of the 9 June 2016 invoice, and Mr Floropoulos replied attaching an Oliana price schedule for inclusion in the exclusive distribution agreement. Mr Floropoulos texted Mr Canzoneri stating that Mr Canzoneri had not sent him the contract. Mr Hone also forwarded to Mr Floropoulos the email and revised draft agreement he had received from Michael Canzoneri.

On 25 November 2016 Mr Hone sent a document to Michael Canzoneri setting out some suggested amendments to three clauses of the draft sent by Michael Canzoneri and stated ‘All others the same’. On the same day Mr Floropoulos emailed Mr Hone, again attaching the price schedule, and stated as follows:

Hi Ian ,
please add this in Price schedule … also put in the amendments . lets [sic] get this signed up over the weekend if possible .
let me know if we need anything else .

Mr Hone then sent a price schedule to Michael Canzoneri on Saturday 26 November 2016 stating ‘… herewith pricing schedule for attachment to agreement …’. That pricing schedule dealt with product, packaging and the AUD price per kilogram. The products were: vegan original; vegan cheddar; vegan mozzarella; vegan smoked; and vegan feta style in brine.

Mr Hone sent a copy of his email to Michael Canzoneri to Mr Floropoulos and also sent him a copy of his proposed amendments. The prices in the price schedule were materially greater than the Kremel Supply Price although Mr Canzoneri and Oliana did not know that.

On 28 November 2016 Mr Hone emailed Mr Canzoneri and Michael Canzoneri asking whether the changes in the schedule were acceptable and asking to be advised ‘ASAP’.

That same morning, Mr Floropoulos texted Mr Canzoneri saying good morning and asking ‘… how did we go with the Greeks is it all sorted now? …’. In the text message exchange that followed, Mr Canzoneri said that he was waiting on a reply from Mr Hone, which Mr Floropoulos said he would get ‘them’ to follow up. He also said that he ‘… called Greece and they are on to it too …’ and that he hoped to get something that night. Mr Canzoneri said to Mr Floropoulos that ‘as soon as we’ve got it we will sign’.

On 29 November 2016 Mr Hone again forwarded to Michael Canzoneri a further copy of the changes he proposed to the distribution agreement. Also on that day Mr Floropoulos texted Mr Canzoneri, asking that he ‘… send me Ian’s number … need to get them sorted ASAP … so we can [f###] this [expletive] off’.

Later that day Michael Canzoneri sent Mr Hone a Word version of the revised agreement with the amendments marked up and requested that Mr Hone advise if the changes were acceptable. Mr Hone forwarded this email to Mr Floropoulos by email and stated as follows:

Their response — as we sought except they want to put in a provision that the no set off provision doesn’t apply if there is a “genuine dispute as to defective products”. I don’t like that provision but it is a matter for you whether you want me to hold the line on it.

Mr Canzoneri signed the exclusive distributorship agreement on behalf of Oliana on 29 November 2016. On 30 November 2016 Mr Hone sent an email to Michael Canzoneri and Mr Sebastian Canzoneri in the following terms:

Dear Michael and Sebastian
I attach Agreement as signed and emailed by Sebastian yesterday, signed by myself for Culinary Co Pty Ltd WITH ONE AMENDMENT being in clause 3.2.3 where in line 2 I have changed the word ‘Supplier’ to ‘Distributor’ as clearly the supplier isn’t paying itself. Please initial the change and re-email and courier to my office 5/148 Walker Street, Dandenong.
Any queries please do not hesitate to call/email.

The terms and features of this signed agreement are discussed further later in these reasons. Among other things:

(a) Kremel and Culinary Co were jointly defined as ‘Together, the Supplier’ and Oliana Foods Pty Ltd was defined as the Distributor.

(b) The background recorded in paragraph A that ‘the Supplier is the direct or indirect manufacturer of the products’ and paragraph B recorded that ‘the Supplier has agreed to appoint the Distributor to distribute the Products exclusively in the Territory on the terms and conditions set out in this agreement’.

(c) The Supplier granted the distributor the exclusive, non-transferrable right to distribute the Products in the Territory, which was Australia and New Zealand.

(d) Fifty per cent of the total order price was to be electronically transferred to the Supplier upon acceptance of an order by the Supplier and confirmation from the distributor, with the remaining payment for any order to be paid by the distributor not more than 45 days after delivery of the Products. With respect to the first two orders and/or shipments of two containers, the distributor agreed to deposit into the Supplier’s nominated bank account 50% of the orders with the balance of the 50% to be paid by transfer into the Supplier’s account upon the production of the free on board shipping documentation to be sent to the distributor advising the goods are ready to be shipped and ready to be delivered.

(e) Notices were dealt with in clause 11.1. In that clause it was recorded that notice for the ‘Supplier’ could be delivered by hand, by mail, by facsimile to Ian Hone at Level 1, Suite 34, 1 Ricketts Road, Mount Waverley.

(f) The Supplier product list addressed product, packaging and price per kilogram consistently with the pricing earlier referred to, which was as follows (Culinary Co Supply Price):

PRODUCT

PACKAGING

PRICE PER KG

(AUD)

Vegan Original

200gr Block

$14.32

200gr Slices

$15.20

200gr Shred

$16.15

Vegan Cheddar

200gr Block

$14.32

200gr Slices

$15.20

200gr Shred

$16.15

Vegan Mozzarella

200gr Block

$14.32

200gr Shred

$16.15

Vegan Smoked

200gr Block

$14.32

200gr Slices

$15.20

200gr Shred

$16.15

Vegan Feta Style In Brine

200gr Tupper

$15.60

The execution clauses provided a separate place for execution by each of Kremel, Culinary Co and Oliana. On the signed version of the copy of the document in evidence, the part of the execution clauses referring to Kremel is blank. Mr Hone is recorded as executing the document for Culinary Co as its sole director and secretary, and Mr Canzoneri is recorded as executing the document for Oliana as its sole director and secretary. A further copy was executed by Mr Canzoneri in early December 2016 due to one (insignificant) handwritten amendment by Mr Hone.

Mr Canzoneri said that he received an original of the agreement sent to him by mail from Mr Hone, which had a signature on behalf of Kremel in its execution block. Mr Canzoneri said he has been unable to locate this document. Mr Hone did not give evidence and there was no direct documentary evidence supporting its existence. Mr Garakis denied ever seeing or receiving the agreement and denied that he signed it, which was accepted by the parties. This is another matter addressed further later in these reasons. As will be seen, it has not been established that there was a copy purporting to be signed for Kremel.

Mr Canzoneri and Oliana were not aware that Mr Hone was communicating with and taking instructions from Mr Floropoulos or that Mr Floropoulos was behind Culinary Co. Mr Floropoulos did not ever disclose this to Mr Canzoneri or Oliana.

Between 3 and 9 December 2016 Mr Floropoulos was overseas in America.

On 8 December 2016 Mr Canzoneri texted Mr Floropoulos stating ‘[a]ll agreements are signed’, to which Mr Floropoulos replied ‘[t]hat’s great’. That was following the second signing by Mr Canzoneri.

Throughout the period late February 2016 until at least December 2017 Mr Floropoulos was doing a number of important things in connection with the business of Oliana. This is further discussed in the context of the de facto director and officer allegations later in these reasons.

On 13 December 2016 Mr Hone emailed Mr Canzoneri stating that he had ‘… heard from Greece …’, that they were sending some pallets by air freight and some by sea and that:

As they have incurred a lot of costs and are trying to help your situation they have asked that you kindly pay the balance of $139272K for the first container by close of business Wednesday 14 December 2016.

He also stated that Mr Canzoneri should just shoot him an email if he had any queries and ‘I will chase with Greece’. In response Mr Canzoneri stated that all was good with the request and that payment would be made over the next three days, with the total amount being paid by the end of the week. This email was forwarded by Mr Hone to Mr Floropoulos on the same day. In his covering email to Mr Floropoulos, Mr Hone stated that he was sending Mr Canzoneri’s email ‘FYI. How do you want me to respond?’.

During 2017 other text messages were sent by Mr Floropoulos to Mr Canzoneri in which Mr Floropoulos conveyed that Kremel were seeking payment from Oliana when in fact that was not so because it was Culinary Co who had the supply arrangement with Kremel. This was not known to Oliana.

By 23 December 2016, Oliana had paid Culinary Co $385,000. During late December 2016 and January 2017 Oliana received the first shipment of products in stages.

During parts of the second half of 2016 and 2017 there were numerous texts and other messages coming from Mr Floropoulos, Culinary Co and Mr Canzoneri regarding supply and payment, including some expressed concerns on the part of Oliana that various payments had been made and that Oliana was frustrated at not being able to obtain a reconciliation in respect of substantial amounts paid. This continued over an extended period.

Oliana made substantial payments to Culinary Co during 2016 and 2017 and it was established on the evidence, and effectively common ground, that the payments were as reflected in the payment schedule annexed to Oliana’s written submission, substantial parts of which comprise Annexure A to these reasons (Oliana Payments Schedule). This also recorded the invoices from Kremel to Culinary Co and the payments to Culinary Co. It recorded that during the period June 2016 to 23 December 2017 Oliana paid Culinary Co $1,967,217.54 and Culinary Co paid Kremel only the equivalent of AUD505,848.09, with Culinary Co paying a further AUD24,937.66 on 23 February 2018.

There were ongoing exchanges between Mr Hone and Mr Floropoulos on the one hand and Oliana on the other regarding products that had been provided by way of air freight, who could deal with air freight, and whether amounts had been paid.

Throughout parts of 2016 and during 2017 concerns were raised by Oliana in relation to the timing and delivery of product, and the impact and difficulties the delays in deliveries were causing Oliana with supermarkets and others that Oliana was supplying.

Mr Wyner was working with, among others, Oliana customer Woolworths on behalf of Oliana in relation to the vegan cheese range and a media support package proposed for the launch in the first six months to 30 June 2017. For example, in an email of 4 January 2017 to Woolworths’ Mr Novak, Mr Wyner emphasised that Oliana was committed to the launch and success of the Oliana branded range and that it was only the start of things to come with an extensive range of products to follow.

Between 5 and 16 January 2017 Mr Floropoulos was in America.

In early 2017 Mr Canzoneri was informed by Mr Wyner that Woolworths wanted to set its own recommended retail price on the Oliana products, which was lower than the price at which they were being supplied to Oliana. Mr Canzoneri asked Mr Floropoulos to see if he could try and negotiate a discount with Kremel. Mr Floropoulos subsequently informed Mr Canzoneri that he had negotiated a 7% discount but that Oliana would need to pay the 50% balance owing on invoices upon delivery. In fact there had been no negotiations with Kremel because Mr Floropoulos was the person setting the Culinary Co Supply Price for Oliana, although this was not known to Mr Canzoneri or Oliana.

On 17 January 2017 Mr Floropoulos forwarded to Mr Hone copies of Culinary Co’s invoices 1 to 4, issued to Oliana in 2016. That same day Mr Hone sent an email to Mr Floropoulos attaching a proposed letter to Mr Canzoneri in relation to payment, invoicing and the 7% discount.

On 18 January 2017 Mr Hone emailed Mr Floropoulos asking him if a proposed letter to Mr Canzoneri, attached to the email, was ‘okay’. Later that day, Mr Hone sent an email to Mr Canzoneri in the following terms:

Dear Sebastian
I trust my email finds you well.
As you are aware with the current agreement that you have negotiated for the 7% discount for the first three months was on the basis that all invoices would be paid 50% on Order and the balance paid once product was shipped.
To date this has not happened.
In good faith we will continue to honour the 7% discount BUT you must keep to your side of the agreement.
As we have incurred air freight costs to the value of $65,000.00 shared 50%/50% between the two companies we require full payment immediately.
As you can appreciate we are trying to assist Oliana as much as possible in launching the Oliana range.
Your current payment schedule of small amounts is creating extra work for our accounts department and as such in future please pay as per the agreement.
Please find attached the invoices for the ‘Shredded’ and 4th Mixed FCL.
We totally understand your cashflow issues but we also have cash flow issues ourselves.
Please confirm by return the balance of outstanding invoices and the 50% for the attached will be paid by this Friday 20 January 2017.

Payments made by Oliana were made to the Culinary Co bank account. During 2016 and 2017 numerous payments were made out of Culinary Co’s bank account by or at the direction of Culinary Co and generally for Mr Floropoulos’ direct or indirect benefit. It became apparent during cross-examination that Mr Floropoulos controlled the Culinary Co bank account. None of this was known to Oliana.

During the period 27 February to 5 April 2017 Mr Floropoulos was overseas in America.

In early 2017 Oliana was facing various time pressures associated with getting supply into supermarkets, which was the subject of correspondence and communications between, among others, Mr Floropoulos and Kremel. This included communications between Mr Makrakis of Kremel and Mr Floropoulos in March 2017.

On 31 March 2017 the last payment of $750 from Oliana to Mr Floropoulos was made.

Mr Garakis visited Australia in April 2017 and a meeting took place on 8 April 2017. Present at the meeting were Mr Garakis, Mr Delis, Mr Floropoulos, Mr Canzoneri and Oliana’s sales manager, Theo Alexopoulos. Throughout the meeting and a subsequent dinner Mr Garakis spoke in Greek. Mr Canzoneri cannot speak Greek. Mr Canzoneri said that when he spoke to Mr Garakis, Mr Garakis would say words to the effect of ‘not understand’ and would wait for Mr Floropoulos to interpret, which he did.

During the meeting, Mr Delis spoke of Mr Canzoneri needing to ensure that Oliana paid Kremel on time, and Mr Canzoneri told Mr Garakis, through Mr Delis who translated into Greek, words to the effect of ‘we’re in credit’, and suggested that together Kremel and Oliana should reconcile the accounts.

In fact, Mr Garakis could understand and speak English reasonably well but said that Mr Floropoulos had requested of him that he only speak Greek in front of Mr Canzoneri, which he did. Mr Floropoulos denied that he made this request of Mr Garakis. This alleged request to speak only Greek was also referred to in later correspondence from Mr Garakis to Mr Floropoulos. The discrepancy between Mr Garakis’ and Mr Floropoulos’ evidence on this point is addressed later in these reasons, where it will be seen that I accept Mr Garakis’ evidence.

After the 8 April 2017 meeting, communications between Mr Delis and Mr Canzoneri occurred regarding payment, including a text from Mr Canzoneri to Mr Delis requesting his email address so that Mr Canzoneri could forward a ‘complete reconciliation’ of Oliana’s account with Culinary Co. In that text Mr Canzoneri stated that Mr Delis would see that inclusive of an air freight invoice ‘we’re in front by approx 15,000’. Reference was also made to some short delivery issues and other matters.

It appears that a reconciliation was subsequently provided by Mr Canzoneri, although it was not able to be located and was not in evidence. In his email of 2 May 2017 to Mr Canzoneri, Mr Delis referred to Mr Canzoneri’s ‘… recent email correspondences and reconciliation you provided …’ and stated he was ‘… finding it difficult to see how you are requesting a net credit / refund when you have yet to receive the third container …’. He referred to Mr Hone’s email of 18 January 2017 to Oliana, in which reference was made to the negotiated 7% discount on the basis that all invoices would be paid 50% on order and the balance when product was shipped (being when stock departed from Greece, as per the email from Mr Hone). Consequently, Mr Delis said that invoices would be adjusted to reflect the correct terms and immediate payment on the remaining balance of the third container would be requested. Reference was also made to Mr Canzoneri’s previous request to meet with Mr Garakis in Greece, in Crete. In this context Mr Delis stated that:

We also confirm that our client, Mr Paris Garakis, will not be available to meet you in Crete due in [sic] to his absence because of other business commitments until the first week in June 2017.

The email also requested the outstanding balance on invoice 004 and 50% deposit on air freight for invoice 005.

During the course of his evidence Mr Floropoulos denied that he had ever had a business relationship with Mr Delis beyond Mr Delis acting as his accountant. In cross-examination, Mr Floropoulos maintained that ‘from what I can recall’, that evidence was correct. However, he agreed that he and Mr Delis had set up a company called Archie Thompson Pty Ltd together and that Mr Delis had replaced him as sole shareholder and director in Telos and Bill F Pty Ltd. Mr Floropoulos stated that he could not recall whether any payments were made in return for the transfer of shares in these companies between himself and Mr Delis.

Mr Delis was not called as a witness by any party. It was not established on the evidence that Mr Garakis, or Kremel, was ever a ‘client’ of Mr Delis. Mr Garakis denied it and I accept this evidence. However, the evidence did demonstrate that Mr Delis was involved in numerous companies with which Mr Floropoulos was involved at different times and that numerous transactions occurred in relation to these companies where shares were transferred between Mr Floropoulos and related parties and Mr Delis. These included, for example, Telos, Bill F Pty Ltd, and Freestyle Foods Pty Ltd.

Mr Delis, Mr Hone and Mr Floropoulos were in different ways stating to Mr Canzoneri that funds were owing by Oliana to Culinary Co and making demands for payment. In this context, on 22 May 2017 Mr Delis forwarded to Mr Floropoulos and Mr Hone a draft email demand for payment to be sent to Mr Canzoneri and requested their respective ‘comments’. Late that Monday evening, Mr Hone responded stating: ‘[h]erewith proposed letter. Despite lateness of the hour I suggest we keep the noon deadline.’ He also said that ‘This letter will NOT be sent until approved.’

Prior to receiving Mr Hone’s revised draft letter, at 4:25pm on 22 May 2017, Mr Delis sent an email demand for payment to Mr Canzoneri which read in part as follows:

RE: CULINARY CO – DEMAND FOR PAYMENT
Dear Mr Canzoneri,
We confirm that you made representations last week to Bill that Oliana would continue to pay daily an amount of circa $15k to $20K.
You have failed to do so since you have only made two payments of $15k being on Tuesday the 16^th May 2017 and on the 18^th May 2017. This is not satisfactory and nor the agreed amounts of instalments to be paid.
You continue to ignore our clients (Culinary Co) requests which are strictly based as per the original agreement executed mid January 2017, and you continue to make payment plans that clearly cannot be met. In good faith after numerous heated discussions with Bill we reluctantly authorised the release of stock held in the ITM storage last Friday to assist you in good faith, despite yet again not receiving the correct amount we had previously requested and subsequently assured by Bill that it would be paid.
Thereafter you still provide further undertakings that you would continue to pay the daily instalments to bring the arrears outstanding up to date, but again you have failed to do so.
These chain of events have now obviously created a very embarrassing situation with our client in Greece and today we have been provided with the following instructions and accordingly this email now serves as a notice to the following:-
1.   By 12pm tomorrow all outstanding amounts owing are to be paid in full. Please refer to the attached updated invoice/Purchase Order No 001149 which reflects the net payable amount of $83,911.92 AUD.
2.   Since there is another container schedule to arrive in Melbourne on the 1^st June 2017, this purchase order also needs to be paid in full prior to any release of its contents.
3.   No further stock will now be leaving Greece unless such orders are paid in full until your company, namely Oliana can demonstrate to our client that it has the financial capacity and ability to pay its debts as and when they fall due.
4.   If the abovementioned items can be adhered to within the designated time frame our clients have made it very clear and in no uncertain terms to terminate the relationship and any future business dealings with your company effective immediately.
In summary our clients have always endeavoured to provide you with assistance, collaboration, guidance and product support as and when you have requested for it during the dialogue and discussions that we have had on several occasions. Unfortunately our clients current perception of your company based on your recent unsatisfactory payment history and undertakings provided, you have not responded in kind.
Can you please contact me immediately to discuss the above and I would suspect you would treat this request as a matter of urgency.
I await your urgent responses to the above.
Yours faithfully,
Peter Delis – Director | Business Advisory

As is apparent, Mr Delis again referred to ‘… our client in Greece …’ and the instructions which it was asserted he had been provided. Mr Delis also referred to ‘clients’ plural in the closing paragraphs.

On 23 May 2017 Mr Delis sent another email headed:

FINAL DEMAND - CULINARY CO
URGENT – FINAL DEMAND

Mr Delis again referred to his ‘clients’ placing Oliana on notice that if certain steps were not taken the agreement would be cancelled immediately, and Culinary Co would also cease any further dealings effective immediately. He also stated that, due to the urgency of the matter, ‘… at the request of our clients we have also linked Mr Ian Hone, the director of Culinary Co into this communication …’. In fact, Kremel was not a client of Mr Delis.

During the period 19 to 27 June 2017 Mr Floropoulos was overseas.

On 1 July 2017 Mr Floropoulos and Mr Garakis signed an exclusive distribution agreement, expressed to be between Kremel and Culinary Co, which provided for Culinary Co to be the exclusive distributor of a range of products manufactured and supplied by Kremel for a broad range of territories being the United States, Republic of China, Philippines, New Zealand, Australia, United Kingdom, Israel, Singapore, Hong Kong and any other countries subsequently agreed upon by the parties in writing. Mr Floropoulos signed the agreement on behalf of Culinary Co.[15] The initial term was expressed to be for five years.
[15]But noting that his signature appears in the incorrect signature block on the document, being the signature block also signed by Garakis, Periandros for Kremel.

Mr Garakis conveyed that he felt that he was effectively tricked into signing this agreement. He expressed this view in an email he sent to Mr Floropoulos in April 2018.

Mr Floropoulos was again overseas during the periods 13 to 20 July and 4 to 11 August 2017, and between 5 to 7 September 2017.

On 17 September 2017 Mr Wyner wrote to Mr Canzoneri stating that Foods International would no longer continue as a consultant to Oliana Foods. Mr Wyner referred to discussions regarding Foods International’s outstanding account (which it was said amounted to $52,506.07) and requested payment within 30 days.

A few days later, on 22 September 2017, Mr Floropoulos sent an email to Woolworths’ Mr Novak, copied to Mr Wyner, regarding a proposal for exclusive supply of vegan products by Culinary Co to Woolworths. That was not known to Mr Canzoneri or Oliana, which was a supplier to Woolworths as Mr Floropoulos and Mr Wyner knew. That email was in the following terms:

Hi Jack,
Thanks again for the meeting we had last week.
Again I apologise for the situation but moving forward I guarantee we will be on a winner.
I am working out the current situation with Oliana Foods which will be sorted out immediately.
Once clarified I’ll let you know.
Just to summarise what we discussed:
•    Woolworths will have the Culinary brand exclusively and the range will be listed nationally by end January 2018 (TBC)
•    Yoghurts & Deserts have and are being developed — I’m finding out what is ready to go so that it can be made available for Marrickville in November.
•    Robert & I will updated on the Snack Pack
•    I will see what we can do about a ‘Cashew’ based range
•    I have samples of the ‘Toffuti’ spreads and development work has already commenced.
•    Once our designer has implemented the changes to the label we discussed we’ll send them through to you.
•    Pricing will be structured that we include ongoing marketing support.

Jack I’m glad that we could sit down and talk openly so that we can really make this the ‘hero’ in Woolworths with you and Stephanie.
Paris will be here from Greece on Monday 25th through to Friday the 29th of September. Please let me know what day you are free so we can fly up and see your self and Stephanie.
Have a Nice weekend
Bill Floropoulos

On 26 September 2017 Mr Wyner emailed Mr Novak and Ms Scalise of Woolworths, copied to Mr Floropoulos, regarding the proposed supply by Culinary Co and noting that he was working on pricing with Mr Floropoulos. Mr Wyner also enquired as to what trading terms were being considered by Woolworths.

On the same day, 26 September 2017, Mr Hone sent to Mr Delis, copied to Mr Floropoulos, an email attaching a draft letter and notice of termination of the contract between Culinary Co and Oliana for review and comment. He stated that it had been drawn up on the basis that Oliana was in default, but that Oliana had probably not committed any of the grounds that allowed for immediate termination under clause 10.2.

In a text exchange between Mr Delis and Oliana’s Mr Adams on 17 October 2017, Mr Delis referred to, among other things, his ‘instructions’ that until ‘our clients’ receive clear funds no stock would be released and advised that due to ‘the constant poor payment history, the discount of 7% is now no longer applicable’.

In response, Mr Adams requested that Mr Delis call him, or, if that was too difficult, for Mr Delis to arrange for the client to contact Mr Adams directly. In the same text, Mr Adams stated that Mr Delis’ text was ‘factually inaccurate’. In response, Mr Delis texted Mr Adams in the afternoon of 17 October 2017 two text messages as follows:

I HAVE BEEN INSTRUCTED BY THE DIRECTOR, MR IAN HONE THAEFFECTIVE
THAT EFFECTIVE IMMEDIATELY CULINARY CO PTY LTD IS TERMINATING THE AGREEMENT WITH OLIANA FOODS. CULINARY CO RESERVES ITS RIGHTS.

During November and December 2017 Mr Floropoulos sent numerous texts to Mr Canzoneri regarding payment related matters which included messages conveying that ‘Greece’ was requiring payment from Oliana, requesting that payment be made, conveying that Mr Floropoulos had had numerous communications with Kremel about payment, and stating that it was becoming embarrassing for him. In fact Kremel was not requesting any payments from Oliana and was not communicating with Mr Floropoulos about this. This was not known to Mr Canzoneri or Oliana.

In late 2017 Mr Canzoneri was becoming more and more frustrated and concerned with the delay in stock being provided and the absence of a reconciliation from Kremel (through Culinary Co), which he was expressing in his communications to Mr Floropoulos. He did not know that Culinary Co was being totally or substantially controlled by Mr Floropoulos.

On 22 December 2017 the last payment of $1,250 to Ms Nikki Floropoulos was made by Oliana.

On 27 December 2017 Mr Floropoulos signed a Woolworths vendor trade partner form on behalf of Culinary Co, providing his details for the company contact details, as well as those of Mr Wyner for communications. Mr Floropoulos is recorded as signing the document on 27 December 2017 in an execution block marked ‘Signature of chief executive officer/director/company director’. The agreement records it being signed by Woolworths Buying Department authorised personnel on 10 January 2018. This was not known to Oliana or disclosed by Mr Floropoulos.

On 3 January 2018 Mr Canzoneri emailed Mr Garakis and Mr Hone jointly on behalf of Oliana with the subject line ‘Urgent – Impending Coles Delisting’. That email was lengthy but it is appropriate to set out in full some of its terms:

Dear Paris and Ian,
***We have been given notice today that Coles will delist our products if we cannot give them a firm delivery date for the current order–Please give this email your urgent attention***
I refer to our time spent with Paris here in April 2017.
We met together in good faith to discuss our business in general and resolve communication difficulties that we had been experiencing since the commencement of our commercial relationship.
There were a number of key points that were addressed at the time that are still outstanding and continue to complicate matters.
The main issue that is yet to be resolved, is the clear communication breakdown between Oliana and Kremel S.A.
The inability of our staff to deal directly with Paris’ team is causing significant problems and we are in danger of losing the Coles chain of stores if this is not resolved.
I summarise the outstanding issues as follows.
ACCOUNTS
…
To date, we have not received any statements for our account with Culinary Co, and have only recently received a generic invoice for freight that is devoid of any detail. We have requested itemised accounts and a reconciled statement detailing our transactions, and have not received anything. Whilst our records indicate we are substantially in credit of approximately $150,000, we have asked for this on many occasions and it has been conveyed to us that it is done but we are yet to receive anything supporting it.
We have paid for all our deliveries prior to goods being released even though we believe that we are in credit with Culinary and our agreement states that after the first 2 containers we should have 45-day payment terms after delivery.
ORDERING AND LOGISTICS
It was agreed that logistics to be dealt with by Damien directly with factory, and it was also agreed by Paris that we could use our own freight-forwarder. Upon engaging our own company, however, we were told that this was no longer allowed. We believe that the amounts being paid for freight are significantly overpriced and that we can secure far cheaper rates with our own freight-forwarding company, which will also streamline communication for pickup and delivery of stock.
In August 2017 we received a container of cheddar shred, which we had not ordered. Up until the container was delivered we had no way of knowing how we received this container. We are still to receive an invoice for this container — how is it possible that an entire container of product can arrive at our warehouse, unannounced, and without explanation. This is a significant concern for all parties, and typifies the communication breakdown experienced to date. At a subsequent meeting between Peter Delis, Bill Floropoulos and myself, it was finally identified that Bill had ordered the container without an order of Oliana.
We have paid over $200,000 in airfreight and have not sighted one invoice or document from the freight forwarder to substantiate these payments. For the latest airfreight shipment, we paid $78,000 for airfreight delivery in good faith for products delivered in or about later October. We have only just received the invoice for that payment from Culinary, some eight weeks later. The invoice does not include any supporting information other than confirming the total amount paid.

[594]Ibid [107]–[109].

In Cro Travel Pty Ltd v Australia Capital Financial Management Pty Ltd (‘Cro v ACFM’), Ward JA (Meagher JA and Barrett AJA agreeing) stated that:[595]

There is no dispute that the appropriate question to be postulated in assessing damages for breach of warranty of authority is to ask what would have happened if the purported agent had the authority it held itself out to have. That is, one considers an hypothetical situation and asks what would the position have been had the authority in fact existed at the relevant time.

[595]Cro Travel Pty Ltd v Australian Capital Financial Management Pty Ltd [2018] NSWCA 153, [162] (Ward JA, Meagher JA and Barrett AJA agreeing) (citations omitted). See also Leggo v Brown & Dureau Ltd (1923) 32 CLR 95,99 (Knox CJ); McIntosh v Linke Nominees Pty Ltd [2008] QCA 275, [13] (Muir JA, Cullinane and Douglas JJ agreeing).

Her Honour went on to quote the statements of principle of Finkelstein J in BHPB v Cosco, which the primary judge had referred to, as well as quoting with approval from Bowstead and Reynolds on Agency[596] regarding the position involving transactions that would have been unenforceable even if the warranted authority had been possessed.
[596]Ibid [164] quoting FMB Reynolds, Bowstead and Reynolds on Agency (18th ed, 2006, Sweet & Maxwell) [9-077]:
Transaction unenforceable against principal. Where no redress could be obtained from the principal even if the agent had been authorised, there is again no loss. Thus in Heskell v Continental Express Ltd ... even express authorisation of the signature by the principal would not have created a contract with the principal, since no goods had ever been shipped. The same result could follow where the contract is unenforceable against the principal because the principal is a company not yet formed or for lack of writing under the Statute of Frauds.

Consideration

Noting that Oliana relied upon the acts and omissions earlier referred to in the context of the misleading or deceptive conduct claims against Mr Hone as establishing the representation and warranty of authority, it is convenient first to refer back to, without reciting or summarising them, the observations made and conclusions reached earlier regarding the said acts and omissions, the 7 June Representations, the Hone Conduct, the Exclusive Distributor Representation, the Authority Representation, and the Binding Agreement Representation.

In the circumstances, it is in my view plain that Oliana has established that from 7 June 2016 and continuing, Mr Hone represented and asserted that he had authority to act on Kremel’s behalf in relation to the matters set out in the 7 June 2016 letter and the exclusive distribution agreement that was formally to follow thereafter. Whilst this conclusion is at least in part supported by the concessions made on behalf of Mr Hone, given the content of the 7 June 2016 letter and that which followed, the position would remain the same whether or not such concessions had been made.

In this context, and as a point of emphasis, it is convenient again to highlight aspects of the 7 June 2016 letter as set out below, which it will be recalled directly and in plain terms addressed Mr Hone’s authority to act for Kremel in relation to the appointment of Oliana as Kremel’s exclusive distributor.[597]
[597]As the concessions made by Mr Hone’s counsel acknowledged.

That such a representation of authority was made by Mr Hone is evident from the underlined text in the letter (emphasis added):

Dear Mr Canzoneri
I hereby confirm that I am the sole officeholder for Culinary Co Pty Ltd and also act as the legal representative for and on behalf of Culinary Co-Greece whose managing director is Mr Paris Periandros.[598]
As you are aware my clients have been in discussions with several other distributors throughout Australia.
I confirm that I have been instructed by Mr Periandros to cease all talks with these third party distributors and to now appoint Oliana Foods to be the new distributors with exclusive rights for Culinary Co and its various products for both Australia and New Zealand.
As per your prior discussion with Mr Paris Periandros of Culinary Co-Greece in good faith he has commenced the preparation of your initial order you have provided as per product specifications.
Within the next 24 hours we will provide you with an invoice for deposit to be paid as per our agreement.
Yours sincerely
Ian George Hone
Director
For and on behalf of Culinary Co Pty Ltd

[598]It was common ground that Mr Paris Periandros and Mr Paris Garakis are one and the same person.

It will also be recalled that by an email sent in response to the 7 June 2016 letter on the same day Mr Canzoneri responded thanking Mr Hone for his email, stating that he looked forward to a ‘… long and mutual association …’ and asking that Mr Hone ‘… forward the agreement as soon as it is finalised …’, which Mr Hone subsequently as the earlier discussion of these matters reveals.

The events then unfolded as earlier described, but again recalling they include: invoices being sent shortly after the letter and $275,000 being paid by Oliana with the first $75,000 being paid on 9 June 2016; Mr Hone’s role in connection with exclusive distribution agreement and his communications regarding the same; Mr Hone’s email of 23 November 2016 to Mr Canzoneri attaching his second draft agreement following what he described as having been revised ‘… after discussions with Greece overnight …’; that same email referring in the same sentence to the Product/Price list still to come; the exclusive distribution agreement’s terms recording and relating to Kremel and Culinary Co being, together, the ‘Supplier’ (and ‘direct or indirect manufacturer’); Oliana being the only ’Distributor’ named in the agreement, which was consistent with the terms of the 7 June 2016 letter; Mr Hone not disclosing the true position; and Mr Hone continuing to proceed as though the exclusive distribution agreement was binding and in operation, and that he was acting on behalf of Kremel — which in part was well illustrated by the terms of his correspondence in January 2018 purporting to terminate the agreement, and the fact that he was the named person to receive notices for the ‘Supplier’ under the agreement, being Kremel and Culinary Co.

The required representation and assertion of authority has been established.

Any suggestion that Mr Canzoneri, and through him Oliana, did not rely on this representation and assertion of authority, or was not induced to transact on the basis of it, is in my view without merit. Given the earlier discussion of the background and circumstances and the misleading conduct claim against Mr Hone previously addressed, this aspect can be dealt with relatively swiftly. Given the discussion to date it is sufficient to refer to the following:[599]
[599]Noting that this also reflects reliance upon Mr Hone’s misleading conduct, as previously mentioned.

(a) Oliana transacting almost immediately following the receipt of the 7 June 2016 letter in which it was informed that Mr Hone had instructions ‘to now appoint’ Oliana as the exclusive distributor for Kremel. This included proceeding with substantial orders and paying $275,000 in respect of the invoiced products in the manner earlier referred to.

(b) The terms of the 7 June 2016 letter, Mr Canzoneri’s email that followed it, and that which thereafter transpired in relation to the negotiation and execution of the exclusive distribution agreement and the orders and amounts paid by Oliana thereafter as reflected in the Oliana Payments Schedule.

(c) The terms and features of the exclusive distribution agreement earlier referred to, including, for example, Kremel being the joint ‘Supplier’, Oliana being the only ‘Distributor’ (not Culinary Co), and the price being the ‘Supplier’s’ price.

(d) Mr Canzoneri and Oliana acting consistently with, and on the basis that, Oliana had been appointed as the exclusive distributor for Kremel, as reflected in the 7 June 2016 letter and the exclusive distribution agreement.

(e) The ongoing ordering of and payment for product by Oliana and the documentary evidence regarding frustrations with supply and reconciliation by Kremel.

(f) Mr Canzoneri’s evidence as to what he would have done had he known of the true position.

(g) The fact of and terms of Mr Canzoneri’s email to Mr Garakis and Mr Hone jointly on 3 January 2018.

For completeness, I add that I accept that Mr Canzoneri’s, and consequently Oliana’s, position in this context is at least inferentially supported by the terms of the original statement of claim in this proceeding, in which the claim at that time included a claim against Kremel under the exclusive distribution agreement. However, resort need not be had to this matter as the positon is in my view clear without it.

I also accept that it was plain on the evidence that neither Mr Hone nor anyone else informed Mr Canzoneri or anyone else at Oliana of the true position regarding Mr Hone’s authority (or rather, lack of it) or sought to withdraw or qualify the representation and assertion of authority, noting also that it was not and could not have been seriously contended otherwise. Although it is open to draw an inference that any evidence that Mr Hone could have given on this issue would not have assisted him, the position is clear in any event. In these circumstances it is also unnecessary to decide whether Mr Delis should be regarded as having been in Mr Hone’s camp such that a similar inference could be drawn in respect of any evidence he might have been able to give on the topic.

That Mr Hone was not authorised to act on Kremel’s behalf in relation to the matters the subject of the 7 June 2016 letter or in relation to any exclusive distribution agreement was not seriously contested. It was clear that Mr Hone did not have any authority from Kremel or Mr Garakis as at 7 June 2016 or at any relevant time thereafter in relation to the appointment of Oliana as its exclusive distributor, whether pursuant to the 7 June 2016 letter, the exclusive distribution agreement or otherwise which was a point that Mr Garakis’ evidence somewhat emotionally and colourfully reinforced. As to the inferences that might be drawn in respect of any evidence of Mr Hone or Mr Delis could have given on the topic, the observations made in the previous paragraph apply equally.

With respect to specific matters raised on behalf of Mr Hone it will be apparent that I have not found them persuasive in relation to the matters addressed so far on this topic. Before turning to the question of the alleged loss and damage, I make the following additional comments regarding these specific matters raised.

That the exclusive distribution agreement was not executed by Mr Garakis or Kremel does not assist Mr Hone. The focus here is the representation and assertion of authority in circumstances where Mr Hone had none. If and to the extent this was intended to detract from Oliana’s contention that it relied on and was induced by the warranty of authority to transact and act, that submission is without merit. For the reasons earlier indicated it is clear that Oliana has established that it relied on and was induced to transact by Mr Hone’s assertion of authority. It continued to do so until at least 10 January 2018, which was also supported by the fact that it wrote jointly to Mr Hone and Garakis on 3 January 2018.[600]
[600]And the content of that email.

Even assuming that Culinary Co had authority from Kremel to supply its products to Oliana,[601] that is not to the point. Kremel was not aware of what Mr Hone and Mr Floropoulos had been doing with Oliana, and we are here addressing Mr Hone’s assertion of authority to Oliana, not the position between Culinary Co and Kremel that was unknown to Oliana.
[601]Pursuant to a different arrangement unknown to Oliana and to that which Mr Hone was conveying he was authorised to act in respect of for Kremel.

Whilst it is true that the second draft agreement prepared by Mr Hone was superseded by the third and later drafts, it does not change the fact that it came from Mr Hone, included Kremel as a party, and recorded in the execution block for Kremel that it was to be signed for and on behalf of Kremel by Mr Hone. This was part of Mr Hone’s conduct that was consistent with the representation and assertion regarding his authority that commenced with the 7 June 2016 letter and forms part of the relevant circumstances. It did not evaporate.

I have previously determined that it has not been established on the evidence that there was an agreement bearing a signature purporting to be on behalf of Kremel. However, that also changes nothing so far as the current issue is concerned. If and to the extent it was intended by Mr Hone to suggest that the absence of a signature, whether alone or in combination with one or more of the related communications between the parties in and around November and December 2016, was sufficient to put Mr Canzoneri and Oliana on notice that Mr Hone was not or no longer authorised to represent or act on behalf of Kremel, I do not accept that submission. When viewed in the run of communications, events and acts and omissions involving Mr Hone and Mr Canzoneri from 7 June 2016 until 3 January 2018 (and to some extent thereafter), it is apparent that it does no such thing. Viewed in context and in the light of all the circumstances, it does not detract in any material way, if at all, from the represented and asserted authority that Mr Hone conveyed that he had — which, as I have said, is also supported by the terms of the agreement itself and Mr Hone’s conduct thereafter. I have also explained that reliance was established.

Although it is said that neither Mr Hone nor anyone else represented that the price list was that of Kremel, as I have earlier addressed, that sits in tension with the terms of the exclusive distribution agreement which record Kremel as the Supplier (with Culinary Co) and only one Supplier price. But again, in relation to the matters referred to above it matters not, although the issue is further addressed when addressing loss and damage below. Further, Mr Hone’s email to Mr Canzoneri when sending the second draft of the agreement to him was at least consistent with the price list to be added being that provided by Culinary Co Greece (that is, Kremel). It will be recalled that this email to ‘Sebastian’ attached the agreement and stated: ‘after discussions with Greece overnight please find amended document, produce/price list still to be added’.

I also do not accept the submission that the price arrived at for Oliana was something that was ‘… freely negotiated on commercial terms …’. Among other things, Mr Hone misrepresented his authority and the true position from the time he sent the letter of 7 June 2016 and thereafter, and this induced Mr Canzoneri and through him Oliana to transact in the way earlier described. However else the circumstances in which the price was arrived at may be described, it cannot be meritoriously contended that the arrangements in this case after 7 June 2016 (and as later recorded in the exclusive distribution agreement) reflect an agreement ‘… freely negotiated on commercial terms …’, given that Oliana was materially misled in the way that I have determined.

Insofar as reliance was placed on clause 2.3 and the entire agreement clause of the exclusive distribution agreement, I refer to the earlier observations made in the context of the misleading conduct claims. In this context they also fall to be considered as part of the whole context and circumstances and do not detract from the represented and asserted authority of Mr Hone conveyed to Oliana by Mr Hone.

As I have said, even putting the concessions to one side, Oliana has established that from 7 June 2016 and continuing, Mr Hone represented and asserted that he had authority to act on Kremel’s behalf in relation to the matters set out in the letter of 7 June 2016 and the exclusive distribution agreement that was formally to follow thereafter. It has also established that it was induced thereby to transact in the way earlier described. Mr Hone’s warranty of authority was breached by him because he had no such authority. The remaining questions are whether Oliana has established that it has suffered loss and damage by that breach and, if so, the quantum of that loss.

Loss and damage – breach of warranty of authority

As was the case for the damages claimed by Oliana in respect of the other causes of action, that which was claimed by Oliana for this breach of warranty of authority claim was essentially the same and conceptually straightforward. Oliana referred to damages being assessed by reference to the contractual measure and attention was drawn to the principles and authorities earlier referred to. It was said that had Mr Hone in fact been acting for and had Kremel’s actual authority, then Oliana would have been appointed as Kremel’s exclusive distributor, initially pursuant to the 7 June 2016 letter and then pursuant to an exclusive distribution agreement reflecting Kremel Supply Prices. It was said further that Oliana would not have been vulnerable to the misconduct of Mr Floropoulos.

As mentioned, the loss was said to be equal to the Oliana Loss Amount earlier explained. In calculating damages in this way Oliana characterised its damages claim as ‘generous’, as elaborated on in connection with the s 1317H compensation claim.

Apart from the submissions made in relation to Mr Canzoneri’s counterfactual position and reliance that I have addressed, no challenge was made to the amounts or other substantive submissions made regarding loss and damage in this context.

I accept the substance of Oliana’s position regarding the damages it claims equal to the Oliana Loss Amount based on the differential between the Kremel Supply Price and the Culinary Co price (adjusted for freight).

Damages are to be assessed by reference to the contractual measure and, to adopt the language of the New South Wales Court of Appeal in Cro Travel, ‘… the appropriate question to be postulated in assessing damages for [Mr Hone’s] breach of warranty of authority is to ask what would have happened if the purported agent [Mr Hone] had the authority [he] held [himself] out to have. That is, one considers a hypothetical situation and asks what would the position have been had the authority in fact existed at the relevant time’.[602]
[602][2018] NSWCA 153, [162] (Ward JA, Meagher and Barrett AJA agreeing).

I turn to the hypothetical. Here, if Mr Hone in fact had the authority from Mr Garakis and Kremel to ‘now appoint’ Oliana as Kremel’s exclusive distributor for its products as was represented and asserted by Mr Hone and acted upon by Oliana, it can be inferred that this would have been at the Kremel Supply Prices. This is because it was Kremel who is the supplier to Oliana in that hypothetical, not Culinary Co or anyone else. It may also be noted that the Kremel Supply prices were established on the evidence and that there was no evidence of any different supply price that might have been offered by Kremel. Similarly, if Mr Hone had in fact had the authority to act for Kremel and Mr Garakis in relation to the entry into an exclusive distribution agreement in respect of such an appointment of Oliana as exclusive distributor for Kremel, it can similarly be inferred that this would have been in respect of supply at the Kremel Supply Price. Again this is because it is Kremel who is the supplier in that hypothetical. It is to be noted in this context that this contractual measure does not focus on that which Mr Canzoneri might have done if the true position was known but on what would have occurred if Mr Hone had the authority he asserted. Consequently, the submissions on the Oliana counterfactual not being established were misplaced in this context.

There are some parallels to the reasoning regarding the s 1317H claim against Mr Floropoulos and, as there, if and to the extent that it is necessary to further support such inferences of Kremel supply, and at the Kremel Supply Price when addressing this contractual measure, they are supported by: the asserted authority; the absence of any prior relationship between Mr Garakis and Kremel on the one hand and Mr Floropoulos on the other; Mr Garakis’ evidence about being pleased with the new supply opportunity and being very happy because Kremel was a small company looking for business opportunities, especially exports; Mr Garakis not doing Mr Floropoulos ‘any favours’ on price but trying to give the best price because it was a ‘very, very nice opportunity for us’; the Kremel Supply Price allowing a profit; and the Kremel Supply Price having been agreed before 7 June 2016.

It is to be remembered in this context that Mr Hone had warranted his authority from 7 June 2016 to ‘now appoint’ Oliana as exclusive distributor for Kremel, as was later reinforced. It may be asked rhetorically that if that was his asserted authority, who else’s prices could apply except for Kremel’s?

To the extent that it was submitted that the hypothetical in question should be assessed on the basis that the prices to be charged would have been the Culinary Co Supply Prices reflected in the Culinary Co invoices (and the exclusive distribution agreement), I do not accept that submission. The hypothetical to be considered is the position that would have prevailed if Mr Hone in fact had the asserted authority in relation to the appointment of Oliana as exclusive distributor for Kremel as supplier. There is no sound basis on the evidence for establishing or concluding that if Mr Hone had in fact had such authority on behalf of Kremel then the prices Kremel would have charged would have been prices artificially created by Mr Floropoulos unknown to Kremel that were assigned by Mr Floropoulos to an entity unrelated to Kremel (Culinary Co), and which were created as part of an undisclosed plan of Mr Floropoulos to interpose Culinary Co so as to allow for a substantial mark-up for the benefit of Mr Floropoulos and Culinary Co without Oliana’s knowledge.

Oliana has established that Mr Hone is liable to it for damages for breach of warranty of authority, with such amount being equal to the Oliana Loss Amount.

OTHER MATTERS

Subject to addressing the election issue and hearing from the parties regarding the possible impact of the date upon which Mr Floropoulos was joined as a party to this proceeding,[603] it appears that Oliana should be entitled to the statutory interest claimed against Mr Floropoulos and Mr Hone. No submissions were made to the contrary.
[603]And any other matters the parties may wish to raise in relation to interest.

CONCLUSION

For the reasons stated above, and in summary,[604] I have concluded that:
[604]This summary is to be read in the light of the detailed reasoning that precedes it.

(a) Mr Floropoulos was a de facto director and officer of Oliana after 26 February 2016 and was subject to the statutory duties imposed on such directors and officers by ss 180, 181, 182 and 183 of the Act.

(b) Mr Floropoulos was a fiduciary of Oliana in his role as a de facto director and officer of Oliana by reason of which he owed fiduciary duties to it in connection with his role and responsibilities in seeking to source and secure an alternative manufacturer/supplier of vegan cheese for the benefit of Oliana.

(c) Irrespective of his position as de facto director and officer of Oliana, Mr Floropoulos was in a fiduciary relationship with Oliana and owed fiduciary duties to it by reason of his role and responsibilities in connection with the sourcing and securing of an alternative manufacturer/supplier of vegan cheese for the benefit of Oliana.

(d) Mr Floropoulos breached the statutory duties under the Act that he owed to Oliana. Even if it had not been determined that Mr Floropoulos was a director of Oliana after 26 February 2016, he would have breached his duty to Oliana under s 183(1) of the Act by reason of his improper use of information obtained because he had been a director.

(e) Mr Floropoulos breached the fiduciary duties he owed to Oliana.

(f) Subject to addressing with the parties the issue of election regarding its alternative claim for an account of profits, Oliana has established that it is entitled to:[605]
[605]And the operation of the principles against double recovery.

(xii) an award of compensation against Mr Floropoulos pursuant to s 1317H of the Act of an amount equal to the Oliana Loss Amount in respect of the breach of statutory duty claims made against him;[606]
[606]But subject to clarifying a small matter of arithmetic with the parties in relation to the Oliana Loss Amount.

(xiii) equitable compensation from Mr Floropoulos of an amount equal to the Oliana Loss Amount in respect of the breach of fiduciary duty claims made against him.

(g) In contravention of s 18 of the ACL, Mr Floropoulos engaged in misleading and deceptive conduct of the kind alleged by Oliana.

(h) It is not necessary to determine whether Mr Floropoulos was a person involved in any misleading and deceptive conduct of Mr Hone or Culinary Co.

(i) Oliana did not establish that the loss and damage claimed by it in respect of Mr Floropoulos’ misleading and deceptive conduct was suffered because of that contravening conduct. Consequently, Oliana is not entitled to damages or compensation from Mr Floropoulos pursuant to s 236 or s 238 of the ACL.

(j) In contravention of s 18 of the ACL, Mr Hone engaged in misleading and deceptive conduct of the kind alleged by Oliana.

(k) It is not necessary to determine whether Mr Hone was a person involved in any misleading and deceptive conduct of Mr Floropoulos or Culinary Co.

(l) Oliana did not establish that the loss and damage claimed by it in respect of Mr Hone’s misleading and deceptive conduct was suffered because of that contravening conduct. Consequently, Oliana is not entitled to damages or compensation from Mr Hone pursuant to s 236 or s 238 of the ACL.

(m) Mr Hone is liable to Oliana for breach of warranty of authority in respect of his claimed authority to act on behalf of Kremel in connection with the appointment of Oliana as Kremel’s exclusive distributor of its vegan cheese products in Australia and New Zealand.

(n) Oliana is entitled to an award of damages from Mr Hone for breach of warranty of authority of an amount equal to the Oliana Loss Amount.[607]

[607]Subject to clarifying a small matter of arithmetic with the parties in relation to the Oliana Loss Amount.

Subject to addressing the question of election,[608] Oliana is entitled to judgment against each of Mr Floropoulos and Mr Hone for an amount equal to the Oliana Loss Amount.
[608]And the small arithmetical matter referred to.

I will address with the parties the matters of statutory interest, costs, form of orders,[609] and next steps.
[609]Including any declarations.

DEFINED TERMS & NAMED PERSONS & PARAGRAPH NUMBERS WHERE FIRST INTRODUCED

Defined Term / Person
Paragraph

/ *Footnote

7 June Representations 802

ACL 9(f)

Act, the 9(a)

ADAMS, Mr (Damien) 54

Agreed Chronology 13

ALEXOPOULOS, Theo 103

alleged Moka Pot Discussion 262

Australian Subsidiary Representation 201(e)(iv)

Authority Representation 201(e)(ii)

Binding Agreement Representation 201(e)(iii)

CANZONERI, Michael 65

CANZONERI, Mr (Sebastian) 1

CCA 201(f)

Clause 57 355

Culinary Co 2(c)

Culinary Co Supply Price 80(f)

DAVIS, Finlay * 20

de facto director end date 286

DELIS, Peter 55

exclusive distribution agreement 45

Exclusive Distributor Representation 201(e)(i)

Floropoulos Conduct 523

FLOROPOULOS, Bill 11

FLOROPOULOS, Ms Nikki 20

Foods International 24

GARAKIS, Mr Paris 40

GIANFRIDDO, Vincenzo 11

Hone Conduct 802

HONE, Ian 41

ITALIA, Morris 11

KING, Charlotte 157

Kremel 2

Kremel Supply Price(s) 43

MAKRAKIS, Andreas 59

MSL Lawyers 136

MyCo 32

MyCo Cost Price 37

MyCo Supply Price 341(a)

NOVAK, Jack 94

Oliana 1

Oliana Information 341

Oliana Loss Amount 423

Oliana Payments Schedule 91

Oliana Product Payments 763

PAPASTEFANAKIS, Nikos 144

PAULE, Terry 32

PERIANDROS, Mr (Paris) * 13

Porsche 21

Price Representation 201(e)(v)

SCALISE, Stephanie 120

Scottish Pacific Business Finance 42

SMV Trust 14

Supply Representations 523

Telos 55

TPA * 380

TRIMBOLI, Claudio 155

WYNER, Robert 24

ANNEXURE ‘A’ – Oliana Payments Schedule

Oliana Bank Statements - Payment to Culinary		Petros Ledger – Payments to Kremel (€)		Actual Outgoing Payments from Culinary Co to Kremel		Kremel Invoices		Converted to $AUD (mid-market rates xe.com historical converter)
Date	Payment ($)	Running Total	Payment (€)	Running Total	Payment ($)	Running Total	Amount (€)	Running Total	Amount ($)	Running Total
9/06/2016	$ 75,000.00	$ 75,000.00
30/06/2016	$ 100,000.00	$ 175,000.00
12/07/2016	$ 50,000.00	$ 225,000.00
5/08/2016	$ 50,000.00	$ 275,000.00
25/11/2016	€ 29,985.00	€ 29,985.00	$ 45,620.44	$ 45,620.44
28/11/2016	€ 29,985.00	€ 59,970.00	$ 45,558.09	$ 91,178.53
15/12/2016	$ 40,000.00	$ 315,000.00	€ 41,032.08	€ 41,032.08	$ 57,974.06	$ 57,974.06
16/12/2016	$ 50,000.00	$ 365,000.00	€ 14,929.92	€ 55,962.00	$ 21,385.72	$ 79,359.78
23/12/2016	$ 20,000.00	$ 385,000.00
29/12/2016	€ 15,577.92	€ 71,539.92	$ 22,630.28	$ 101,990.06
3/01/2016	€ 45,479.04	€ 117,018.96	$ 65,510.85	$ 167,500.91
5/01/2017	$ 20,000.00	$ 405,000.00
13/01/2017	$ 10,000.00	$ 415,000.00
19/01/2017	$ 20,000.00	$ 435,000.00
20/01/2017	$ 30,000.00	$ 465,000.00
27/01/2017	$ 30,000.00	$ 495,000.00
27/01/2017	$ 15,000.00	$ 510,000.00
8/02/2017	$ 100,000.00	$ 610,000.00
10/02/2017	€ 29,985.00	€ 89,955.00	$ 44,642.86	$ 135,821.39
14/02/2017	$ 70,000.00	$ 680,000.00
20/02/2017
21/02/2017	$ 50,000.00	$ 730,000.00
23/02/2017
2/03/2017
7/03/2017	$ 20,000.00	$ 750,000.00
8/03/2017	$ 40,000.00	$ 790,000.00
9/03/2017	$ 60,000.00	$ 850,000.00
10/03/2017	€ 27,004.00	€ 116,959.00	$40,496.10	$ 176,317.49
22/03/2017
4/05/2017	€ 59,089.49	€ 176,108.45	$ 84,308.16	$ 251,809.07
10/05/2017	$ 25,000.00	$ 875,000.00	€ 21,142.66	€ 197,251.11	$ 31,330.64	$ 283,139.71
16/05/2017	$ 15,000.00	$ 890,000.00	€ 19,985.00	€ 136,944.00	$31,491.10	$ 207,808.59
18/05/2017	$ 15,000.00	$ 905,000.00
25/05/2017	$ 83,911.92	$ 988,911.92
2/06/2017	$ 65,000.00	$1,053,911.92
13/06/2017	$ 35,000.00	$ 1,088,911.92
14/06/2017	€ 11,907.00	€ 209,158.11	$ 17,619.39	$ 300,759.10
19/06/2017	$ 25,000.00	$ 1,113,911.92
20/06/2017	€ 13,652.23	€ 222,810.34	$ 20,053.67	$ 320,812.77
29/06/2017	$ 30,000.00	$ 1,143,911.92
20/07/2017	$ 25,000.00	$ 1,168,911.92
24/07/2017	$ 20,000.00	$ 1,188,911.92
1/08/2017	€ 26,157.60	€ 248,967.94	$ 38,707.92	$ 359,520.69
3/08/2017	€ 20,410.85	€ 269,378.79	$ 30,527.04	$ 390,047.73
4/08/2017	$ 40,000.00	$ 1,228,911.92
10/08/2017	$ 20,000.00	$ 1,248,911.92
11/08/2017	$ 50,000.00	$ 1,298,911.92
31/08/2017	$ 50,000.00	$ 1,348,911.92
4/09/2017	$ 45,000.00	$ 1,393,911.92	€ 24,985.00	€ 161,929.00	$39,815.26	$ 247,623.85
5/08/2017	€ 61,886.42	€ 331,265.21	$ 92,023.20	$ 482,070.93
18/09/2017	$ 13,000.00	$ 1,406,911.92
18/09/2017	$ 57,000.00	$ 1,463,911.92
19/09/2017	$ 5,000.00	$ 1,468,911.92	€ 29,985.00	€ 191,914.00	$47,801.15	$ 295,425.00	€ 15,876.00	€ 347,141.21	$ 23,738.33	$ 505,809.26
19/09/2017	$ 5,000.00	$ 1,473,911.92
20/09/2017	€ 29,985.00	€ 221,899.00	$47,717.51	$ 343,142.51
22/09/2017	$ 25,000.00	$ 1,498,911.92
25/09/2017	$ 9,830.42	$ 1,508,742.34
29/09/2017	$ 35,000.00	$ 1,543,742.34
6/10/2017	$ 35,000.00	$ 1,578,742.34
11/10/2017	€ 42,746.50	€ 389,887.71	$ 65,094.01	$ 570,903.27
17/10/2017	$ 90,000.00	$ 1,668,742.34
17/10/2017	$ 139,661.20	$ 1,808,403.54
18/10/2017	€ 29,985.00	€ 251,884.00	$47,824.01	$ 390,966.52
19/10/2017	€ 29,985.00	€ 281,869.00	$47,877.43	$ 438,843.95
30/10/2017	$ 26,328.00	$ 1,834,731.54
3/11/2017	€ 11,113.20	€ 401,000.91	$ 16,878.27	$ 587,781.54
6/11/2017
7/11/2017	€ 11,105.00	€ 292,974.00	$17,944.45	$ 456,788.40
8/11/2017
10/11/2017	$ 30,000.00	$ 1,864,731.54
10/11/2017	$ 17,486.00	$ 1,882,217.54
17/11/2017	$ 20,000.00	$ 1,902,217.54
27/11/2017	$ 28,000.00	$ 1,930,217.54
19/12/2017	€ 29,985.00	€ 322,959.00	$49,059.69	$ 505,848.09
21/12/2017	$ 37,000.00	$ 1,967,217.54
23/02/2018	€ 14,985.00	€ 337,944.00	$24,937.66	$ 530,785.75

TOTALS

$ 1,967,217.54

€ 337,944.00

$ 530,785.75

€ 401,000.91

$587,781.54

SCHEDULE OF PARTIES
S ECI 2018 00116

BETWEEN:

OLIANA FOODS PTY LTD (ACN 140 768 716)	Plaintiff
and
CULINARY CO PTY LTD (ACN 612 529 781) (IN LIQUIDATION)	First Defendant
IAN GEORGE HONE	Fourth Defendant
BILL FLOROPOULOS	Seventh Defendant

PRODUCT	PACKAGING	PRICE PER KG (AUD)
Vegan Original	200gr Block	$14.32
200gr Slices	$15.20
200gr Shred	$16.15
Vegan Cheddar	200gr Block	$14.32
200gr Slices	$15.20
200gr Shred	$16.15
Vegan Mozzarella	200gr Block	$14.32
200gr Shred	$16.15
Vegan Smoked	200gr Block	$14.32
200gr Slices	$15.20
200gr Shred	$16.15
Vegan Feta Style In Brine	200gr Tupper	$15.60

7 June Representations	802
ACL	9(f)
Act, the	9(a)
ADAMS, Mr (Damien)	54
Agreed Chronology	13
ALEXOPOULOS, Theo	103
alleged Moka Pot Discussion	262
Australian Subsidiary Representation	201(e)(iv)
Authority Representation	201(e)(ii)
Binding Agreement Representation	201(e)(iii)
CANZONERI, Michael	65
CANZONERI, Mr (Sebastian)	1
CCA	201(f)
Clause 57	355
Culinary Co	2(c)
Culinary Co Supply Price	80(f)
DAVIS, Finlay	* 20
de facto director end date	286
DELIS, Peter	55
exclusive distribution agreement	45
Exclusive Distributor Representation	201(e)(i)
Floropoulos Conduct	523
FLOROPOULOS, Bill	11
FLOROPOULOS, Ms Nikki	20
Foods International	24
GARAKIS, Mr Paris	40
GIANFRIDDO, Vincenzo	11
Hone Conduct	802
HONE, Ian	41
ITALIA, Morris	11
KING, Charlotte	157
Kremel	2
Kremel Supply Price(s)	43
MAKRAKIS, Andreas	59
MSL Lawyers	136
MyCo	32
MyCo Cost Price	37
MyCo Supply Price	341(a)
NOVAK, Jack	94
Oliana	1
Oliana Information	341
Oliana Loss Amount	423
Oliana Payments Schedule	91
Oliana Product Payments	763
PAPASTEFANAKIS, Nikos	144
PAULE, Terry	32
PERIANDROS, Mr (Paris)	* 13
Porsche	21
Price Representation	201(e)(v)
SCALISE, Stephanie	120
Scottish Pacific Business Finance	42
SMV Trust	14
Supply Representations	523
Telos	55
TPA	* 380
TRIMBOLI, Claudio	155
WYNER, Robert	24

[2020] VSC 693

21 October 2020