Ryu v Lee

[2000] NSWSC 1037

CITATION:	Ryu & anor v Lee [2000] NSWSC 1037 revised - 28/11/2000
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	SC 1224/96
HEARING DATE(S):	05/03/98, 06/03/98, 25/05/98-28/05/98, 18/06/98, 14/09/98-17/09/98, 18/02/99-26/02/99, 03/05/99-04/05/99, 06/05/99 (final written submissions 18/05/99)
JUDGMENT DATE:	10 November 2000
PARTIES :	Jae-Ryong Ryu and Song-Am Koh v Ian Inhwan Lee
JUDGMENT OF:	Simos J at 1

COUNSEL :	G. George (Plaintiff) G. McVay (Defendant)
SOLICITORS:	Benjamin & Khoury (Plaintiffs) Gilbert Mane (Defendant)
CATCHWORDS:	CONTRACT - sale of business - provision entitling purchasers to rescind if takings below specified amount - HELD - the purchasers were not entitled to rescind - DAMAGES - HELD - vendors who rescinded were entitled to be placed in same position as if contract had been performed giving credit for value of business as at date of rescission - FAIR TRADING ACT 1987 (NSW) - HELD - purchasers had failed to establish that defendants (vendors) were guilty of engaging in misleading conduct. - DEFAMATION - HELD - the publications complained of were not reasonably capable of carrying the imputation pleaded by the plaintiff and accordingly did not do so - claim for damages for defamation dismissed
LEGISLATION CITED:	Fair Trading Act 1987 (NSW)
CASES CITED:	The Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64 @ 80
DECISION:	Plaintiffs (purchasers) not entitled to rescind contract ; Defendants (vendors) entitled to damages for wrongful repudiation of contract by plaintiffs (purchasers) ; Plaintiffs claim against defendants for misleading and deceptive conduct dismissed ; Defendants claim against plaintiffs for damages for defamation dismissed.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMOS J

Friday 10 November 2000

S1224/96 - JAE RYONG RYU and SONG AM KOH v IAN INHWAN LEE

JUDGMENT

HIS HONOUR:
THE PROCEEDINGS

1 By his amended cross claim dated 5 March 1998 Ian Inhwan Lee, the defendant (cross-claimant), claimed against Jae Ryong Ryu and Song Am Koh, the plaintiffs (cross-defendants), that by an agreement in writing bearing date 11 November 1995, but made on 11 September 1995, the defendant agreed to sell to the plaintiffs, and the plaintiffs agreed to purchase from the defendant, for the sum of $275,000, the business owned by the defendant and known as “Central Billiards”. The amended cross claim further alleged that, pursuant to the said agreement, the plaintiffs paid the sum of $27,500 by way of deposit to the defendant on or about 11 September 1995. It was further alleged that it was a term of the said agreement that the balance of the said sum, being $247,500, would be paid by the plaintiffs on 9 October 1995.
2 It was further alleged that by letter dated 21 November 1995 from the solicitors for the plaintiffs to the defendant, the plaintiffs informed the defendant of the termination of the said agreement and demanded the return of the said deposit. It was further alleged that the content of the said letter of 21 November 1995 was a repudiation of the plaintiffs’ obligations under the agreement, and that the defendants accepted the repudiation of the plaintiffs and sought damages for breach of the said agreement.

CLAIM IN DEFAMATION

3 By his amended cross claim the defendant also alleged that the plaintiffs had caused a notice in the English and Korean languages to be published in each of the Sydney Weekly Korean News and Entertainment Magazine, the Korean Times and The Weekly Korean Life Review on 15 December 1995, 22 December 1995 and 22 December 1995 respectively.
4 The defendant further alleged that the plaintiffs, by causing the said notice to be published, wilfully carried out an act calculated and intended to cause interference with the defendant’s economic interests, which was particularized as the plaintiffs’ intending to and acting to interfere with any potential sale by the defendant of the said business to prospective purchasers. The defendant further alleged that the said acts were unlawful and that the defendant had suffered loss and damage by reason thereof. This alleged cause of action was, ultimately, not pursued by the defendant.
5 The defendant also alleged that the said notice contained an imputation “That the defendant was untrustworthy in business and should be dealt with only with the assistance of legal advice”, and that the said imputation was defamatory, and claimed damages and costs in respect thereof.
6 Although Mr Lee only was named as defendant and cross- claimant in the original proceedings, it was agreed between the parties during the course of the hearing that Mrs Lee also was an owner of the business, and that Mr Lee had her authority to sell her interest in the business on her behalf so that the case was conducted upon the basis that Mr and Mrs Lee both were defendants and cross-claimants. In the same way the cross- claim initially in the name of Mr Lee as cross-claimant was amended or, at the very least, was treated by the parties as having been amended, to include Mrs Lee as a second cross-claimant and the case was conducted on that basis.

DEFENCE TO CROSS CLAIM

7 By their defence to the cross claim the plaintiffs, in substance, denied or did not admit the material allegations contained in the amended cross claim, and, in particular, alleged that the imputation as pleaded did not and could not arise, and further, that it was not capable of causing harm to character or reputation.
FAIR TRADING ACT 1987 (NSW) CLAIM
8 During the course of the hearing the plaintiffs were granted leave to amend the statement of claim to claim also relief under the Fair Trading Act, 1987 (NSW) arising from alleged misleading and deceptive conduct of the first defendant in relation to the takings of the business. The allegations of the plaintiffs were denied by the defendants.

THE FACTS
EVIDENCE ON BEHALF OF THE PLAINTIFFS

9 The first plaintiff gave evidence that he was Korean by nationality but had lived in Australia for seven years and was now a permanent resident. He gave evidence that he met the defendant in early 1995 when he (the first plaintiff) went to play billiards at the business of the defendants at premises at Suite 401, 242 Elizabeth Street, Surry Hills. He said that in early August 1995 he (the first plaintiff) and the defendant had a conversation to the general effect that the defendant asked the first plaintiff whether he wished to buy the business of Central Billiards to which the first plaintiff replied that he would be retiring soon and was looking for a business in which to invest.
10 The first plaintiff gave evidence that the defendant indicated that he was seeking a price of approximately $300,000 for the business including fixtures, fittings, stock and goodwill, and that, as this was more than the first plaintiff could pay on his own, he mentioned the opportunity to his friend, the second plaintiff, and that he (the second plaintiff) indicated that he might be prepared to buy the business with the first plaintiff as an equal partner if he thought it was a good proposition.
11 Subsequently the first plaintiff indicated to the defendant that he and the second plaintiff were interested in buying the business and asked to see the books of account. In due course the defendant produced a number of spread sheets which indicated the hour of the day, all the pool tables in the hall, the number of players and the money collected. The spreadsheets also recorded cash received or credit given in respect of the sale of certain items of food and drink. According to the first plaintiff the spreadsheets indicated that, in the periods covered by them, the business was grossing between $5,000 and $7,000 per week and that the defendant told them that the total expenses were approximately $800 per week.
12 Subsequently, according to the first plaintiff, the first and second plaintiffs offered to buy the business from the defendant for $275,000 and the defendant agreed. In due course the first plaintiff drafted in the Korean language a contract for the sale and purchase of the business which was executed by the defendant and the first and second plaintiffs, at which time the first and second plaintiffs gave the defendant the deposit of $27,500.
13 The contract was, as stated above, written by the first plaintiff in the Korean language but a translation in the English language was tendered in evidence. The English language version of the contract was in the following terms:
“CONTRACT

The vendor, Ian Inhwan LEE (who will be called “A” in this contract”) will sell the Central Billiards to the purchasers, Jae Ryong RYU and Song Am KOH (who will be called “B” in this contract”), subject to the following terms and conditions and all the rights of the business will be transferred to the purchasers effectively on and from the date when the balance is paid to the vendor. [One correction made and marked with two signatures].
The Following:
1. Name and address of the business: Central Billiards of 4th/342 Elizabeth Street, Surry Hills 2010
2. Sale price: A$275,000
Contract deposit amount: A$27,500
Well received.
[Signature] 11 September 1995
Balance: A$247,500
3. Stocks: “A” will hand over the stocks to “B” at the purchase price.
4. The balance payment date is 9 October 1995, but the date can be changed with mutual agreement in the future.
5. [Erased] [Two Signatures]
6. All the billiard tables and all of their parts, repair or maintenance machines and tools, office equipment such as telephone and refrigerator, and kitchen equipment will be handed over to “B” at the current condition.
7. “A” will commence to train “B” immediately after the contract enters. If the weekly sales volume of the business is less than 90% of the volume (A$5,000 - 7,000) which “A” guaranteed to “B”, the above contract can be cancelled by “B” before the balance is paid (in about 4 week time) and “A” should refund the contract deposit (A$27,500) to “B” immediately.
[“Less than 90% of” was deleted and marked with two signatures.]
8. The above contract is subject to the confirmation on the matter of lease extension (4 years) and council approval. [One correction made and marked with two signatures]
11 September 1995
A: Ian Inhwan LEE [Signature, Ian LEE]
B: Jae Ryong RYU of 19 Gillian Pde., West Pymble. [Signature]
Son Am KOH of 6 Kirriford Way, Carlingford [Signature].

14 For present purposes the critically relevant condition in the contract is condition 7 which, as stated above, was in the following terms:-
“7. ‘A’ will commence to train ‘B’ immediately after the contract enters. If the weekly sales volume of the business is less than 90% of the volume (A$5,000 - 7,000) which ‘A’ guaranteed to ‘B’, the above contract can be cancelled by ‘B’ before the balance is paid (in about 4 week time) and ‘A’ should refund the contract deposit (A$27,500) to ‘B’ immediately. ”

(“Less than 90% of” was deleted and marked with two signatures).

15 The defendant claimed that the relevant “weekly sales volume of business” was A$5,000-7,000 and that, accordingly, the plaintiffs were not entitled to cancel the contract as provided for in condition 7. This was the principal issue upon the basis of which the proceedings were contested between the parties.
EVIDENCE ON BEHALF OF THE DEFENDANT
16 The defendant (Mr Lee) gave evidence that he and his wife had conducted the business known as Central Billiards at 4th Floor, 342 Elizabeth Street, Surry Hills as from 15 December 1990 and continuously thereafter.
17 The defendant said that he had known the first plaintiff for about two years as at the time of the discussions concerning the sale of the business. He said that, on occasions, the first plaintiff would come to the premises to play billiards, and at other times did not play billiards but had something to eat or would play chess with the defendant.
18 According to the defendant, the first plaintiff first suggested that he would like to come into partnership with the defendant in the business, to which the defendant replied that he did not wish to sell a half share in the business.
19 According to the defendant about two or three days prior to 11 September 1995 he had a conversation with the first plaintiff to the effect that he (the defendant) was not prepared to sell a half share in the business but was prepared to sell the whole business for $300,000. According to the defendant the first plaintiff offered $250,000 for the business, after which the defendant suggested that the parties split the difference between them, and that he would sell the business for $275,000, to which the first plaintiff agreed.
20 According to the defendant, some two days later, the first plaintiff came back to the premises with a document written in the Korean language being the form of contract referred to above. The first plaintiff stated that he and the second plaintiff would give the defendant ten percent deposit and asked him to sign the form of contract. According to the defendant, the second plaintiff was present at the time and the first and the second plaintiff each gave him in cash one half of the deposit of $27,500.
21 In the course of reading the form of contract the defendant crossed out certain words (which as stated above were written in the Korean language). In addition, after noting that the form of contract provided in condition 7, in effect, that if the weekly sales volume of the business was less than $7,000 the contract could be cancelled by the plaintiffs, stated in effect that $7,000 was too high, and that sometimes the weekly sales volume was more than that figure and sometimes less, so that he wanted to cross out the figure $7,000. Eventually the parties agreed that before the figure $7,000 there would be inserted the figure “A$5,000 -”, so that the relevant condition (condition 7) read, in effect “If the weekly sales volume of the business is less than A$5,000-7,000…”.
22 I accept generally, the evidence of the defendant as to the circumstances leading up to the signing of the contract and, in particular, I am satisfied that the translation of condition 7 as tendered in evidence was in fact an agreed term of the form of contract signed by the parties on 11 September 1995 and that that condition provided on its true construction, in effect, that if the weekly sales volume of the business was less than A$5,000-7,0000 during the four weeks after the plaintiffs took over the business (“in about 4 weeks time”), then the plaintiffs could cancel the contract and were entitled to a refund of the deposit. I do not understand it to be in dispute between the parties that this was the intended meaning of condition 7 and, in any event, I so hold.
23 In the written submissions filed on behalf of the plaintiffs, the relevant agreed issue between the parties was expressed as follows:
“57. The relevance of the business turnover between 11 September 1995 and 9 October 1995 arises because of clause 7 of the contract. While the clause in the contract was somewhat obtuse, the parties have agreed that they (the parties) intended that the contract was to provide a right to terminate if the business weekly turnover was less than $5,000 between 11 September 1995 and 9 October 1995.

58. The dates of 11 September 1995 and 9 October 1995 are pertinent because the contract was executed on 11 September 1995, while completion was to have occurred on 9 October 1995 (clause 4 of the contract).”

24 The defendant also gave evidence, which I accept, that on two subsequent occasions, after the signing of the contract, the first plaintiff asked the defendant to sign a document which he (the first plaintiff) said was required by his bank manager, and each of which stated that the sales were $3,920 per week gross and $3,100 per week after expenses. The defendant refused to sign the first of these documents but he did sign the second of the defendants after having been told by the first plaintiff that the figure of $3,920 per week was “just the figure to get the loan. It is nothing to do with the figure in the contract.”
25 The defendant also gave evidence, which I accept, that the business had ten billiard tables and that he also sold noodles, drinks, cigarettes and confectionery, and that in November 1994 he decided to put the price up to $9 per hour from $6 per hour for playing billiards.
26 The defendants also gave evidence that from about July 1995 there was a big increase in the number of customers because there was a large increase in the numbers of Korean workers who came to Sydney to work and that a lot of those workers would come and play billiards at his business at different hours of the day, and that the business became a meeting place for a lot of people of Korean birth who met people of their own race and who could speak their own language.
27 The first defendant’s affidavit evidence included the following:-
“From about July 1995 there was a big increase in the number of customers. There was a large increase in the numbers of Korean workers that came to Sydney to work. A lot of those workers would come and play billiards in my business at different hours of the day. The business became a meeting place for a lot of people of Korean birth who met people of their own race and who could speak their own language.”
28 The defendant gave evidence which I accept that in the first week of February 1996 a new billiard room opened next to “Hungry Jacks” in George Street in the city near the cinemas. That was less than a kilometre from Central Billiards address. The defendant saw coloured advertisements for the new billiard room which had two more tables than the defendant, that is, twelve tables, and the twelve tables were Korean tables, whilst the defendant’s tables were Australian tables. The Korean tables were decorated in Korean style and bear a Korean brand name and have Korean ornamentation by way of buttons along the frame, which has a coating on it which allows cigarettes to be put on it without burning. The frames on the defendant’s tables were wooden and cigarettes could not be put on them without burning. The cue holders and the little cabinets where chalk and other accessories were kept and also the scoreboard in the new premises were typically Korean in style and size. The sizes of the Korean balls are larger than the Australian balls and the pockets are also larger and are not net pockets. The Korean pockets are internal and the balls instead of being caught in the net follow tunnels under the table and come to rest under one end of the table. The new premises were also air conditioned whilst the defendant’s premises were not.
29 Further in the second week of February 1996 another billiard room operated by Korean people in Kings Cross opened. It also had imported Korean tables.
30 Soon after these two new billiard rooms opened the defendant’s business fell away dramatically. For the first few days no one came to use the premises and the visitors did not come notwithstanding his attempts to improve the business and advertising. The defendant also gave evidence that prior to the new billiard rooms opening up he did a good business with Korean exchange students which he attempted to induce to come back to his premises by discounting the usual charges and handing out free drinks.
31 In this connection the second defendant also gave evidence in cross-examination as follows:-
“Q. And it is your case, isn’t it, that in July, August, September, October, December and January of 1995 and 1996, the business did very very well?

A. Actually it was hell in 1996.
Q. What was that?
A. Because the business was like hell in 1996.
Q. When you say 1996 and the business was like hell in 1996, what do you mean?
A. Because, you know, the billiards room was always crowded or overflowed with the number of clients. So, you know, looking at our business, you know, it was prospering. Actually the two other Korean businessmen opened two billiard rooms.
Q. In the final third of the financial year of 1996, business was not hell, was it?
A. I told you it was like hell in those periods, for those periods.
Q. Well, why was it like hell in the final third of the financial year 1996, Mrs Lee?
A. Because actually I lost a lot of my regular customers to actually newly opened billiards rooms, you know, with the new billiard tables and new facilities. And also the number of the Korean clients in the community is limited, but when you have two more actually billiard rooms opened and then the total clients - the number of clients is supposed to be distributed between the three businesses.”

32 The first defendant’s affidavit evidence included the following:
“I say that on 3 February 1996 a new Korean billiard hall opened in Springfield Avenue, Kings Cross. The takings dropped after that. On 11 February 1996 another Korean billiard hall called ‘City Billiards’ opened at 1st Floor, 636 George Street in the city. I noticed that my takings dropped after that billiard hall opened too. I have walked past those two new establishments and noticed the signs ‘Royal Billiards’ and ‘City Billiards’ outside. I say that these two businesses advertised in the Korean newspapers ……. I say the opening of those two businesses are what has caused the decline in my takings since February.”
33 The defendant also gave detailed evidence which I accept, by affidavit, and also by way of oral evidence, as to the method of recording the takings and expenses of the business. In particular such evidence was given in his affidavit of 1 April 1996 as well as orally.
34 The defendant’s record keeping for the business was limited to recording the takings and certain of the expenses on large sheets of paper of approximately A3 size which were referred to during the hearing as the “Takings Sheets”. It appears that they did not have a bank account for the purposes of the business and did not keep any books of account such as cash book, or ledgers as such.
35 The defendant’s evidence in this respect was corroborated and elaborated upon by his wife Mrs Helen Chunyup Lee by affidavit and orally, Mrs Lee being responsible for many entries made on the takings sheets. The evidence of the defendant and Mrs Lee was also corroborated as relevant by evidence from their son and two daughters.
36 Further, after lengthy cross examination of the defendant and his wife, in particular, it was ultimately agreed between the parties that the relevant weekly sales volumes as recorded were not less than $5,000.
37 This agreement was consistent with paragraphs 8 and 9 of the affidavit of the first plaintiff of 2 February 1996 which were in the following terms:-
“8. I indicated to Mr Lee that we were interested in the business and asked him to show us both his books of account. He replied that was not a problem. What Mr Lee produced to us was a number of spreadsheets which indicated the hour of the day, all of the pool tables in the hall, the number of players and the money collected. I can recall saying to Mr Lee:

‘Where are your annual accounts?’
He replied: ‘I do not have any’.
I was surprised at this, but nevertheless I took the spreadsheets and analysed them.
9. The spreadsheets indicated that in the periods covered by them, the business was grossing between $5,000 and $7,000 per week. Mr Lee told me that the total expenses were approximately $800 per week. On this basis, I came to the conclusion that the price that Mr Lee was seeking was reasonable.
10. I discussed this with Mr Koh (the second plaintiff) and he agreed.”

38 In the written submissions of the plaintiffs, the plaintiffs conceded that the takings sheets indicated that the weekly sales of the business during the relevant period were not less than $5,000 as appears from the following paragraph contained in those submissions:-
“62. The plaintiffs concede that the takings sheet indicate on their face (in the period between 11 September and 9 October 1995) that the business weekly takings were not less than $5,000.”
39 I interpolate to restate that both parties agreed that the relevant condition number 7 of the contract of 11 September 1995 was to be construed as follows:
“If the weekly sales volume of the business is less than $5,000 to $7,000 over the period of four weeks between payment of the deposit (on 11 September 1995) and settlement (on 9 October 1995) then the contract could be cancelled.”
40 The agreed settlement date was four weeks after 11 September, namely, 9 October 1995. The agreed weekly sales volume for the week commencing September 11 to September 17, 1995 was $5,930 (seven days), for the week from 18 September to 25 September, 1995 $8,345 (eight days), for the week from 26 September to 2 October, 1995 $7,270 (seven days), and for the week from October 3 to October 9, 1995 $6,960 (seven days).
41 It is plain from these figures that, during the relevant agreed period of four weeks, that is from 11 September 1995 to 8 October 1995, condition 7 of the contract was “satisfied”, namely, during that period of four weeks “the weekly sales volume of business” was not “less than $5,000 to $7,000”.
42 The balance of the purchase price was not paid by the plaintiffs on 9 October 1995 as provided in the contract (condition 4), and by letter dated 21 November 1995 from the solicitors for the plaintiffs to the defendant the solicitors for the plaintiffs indicated that the plaintiffs intended no longer to be bound by the contract. This letter was headed, inter alia, “Re: You and Kho - Termination of Contract for Purchase of Business Central Billiards” and stated, inter alia:
“We refer to prior communications, and confirm our clients’ claim for the return of the deposit monies in accordance with their rights pursuant to clause 7 of the Agreement… We are instructed to take all appropriate action in support of our clients’ rights under the Agreement.”
43 The defendants accepted this letter as a wrongful repudiation of the contract by the plaintiffs, and, in effect, rescinded the contract and made various attempts to resell the business.
44 The return of the deposit was first demanded in a letter and addressed to the first defendant dated 26 October 1995 from the then solicitors for the plaintiffs.
45 In respect of the alleged wrongful repudiation by the plaintiffs of the contract by the letter of 21 November 1995, the defendants sought damages on the basis that the true value of the business as at 21 November 1995 was $87,845 as per the final valuation of Thomas William Scott, a valuer, who made three affidavits. In my opinion, however, on the evidence, particularly that of Mr Nunnerley, the valuer called on behalf of the plaintiffs, the true value of the business of the defendants as at 21 November 1995 was $218,000. (see later).

ACCURACY OF THE TAKINGS SHEETS

46 It was submitted on behalf of the plaintiffs that the takings sheets could not be relied upon as being accurate. This appears from the following paragraph in the written submissions filed on behalf of the plaintiffs:-
“63. However, the plaintiffs contend that because the defendants were the authors of the takings sheets, their accuracy cannot be accepted because the defendants are not persons whose evidence would be accepted unless their evidence was verified by other witnesses or other evidence. Because there is no other evidence about the business takings, the defendants cannot establish that the business had a turnover of $5,000 in the relevant period.”
47 In my opinion, the relevant takings sheets are, in all material respects, accurate, and, more particularly, insofar as they show that the gross weekly takings of the business for the relevant four weeks were in excess of $5,000 per week, that is not less than $5,000 to $7,000 per week as, in effect, “required” by condition 7 of the contract.
48 In this connection I record that I have in general found the evidence of the defendant and his wife to be truthful in the sense that, in my opinion, having regard to the particular manner in which they gave their answers to the questions, as well as to the substance of those answers, they were genuinely endeavouring to answer the questions asked of them truthfully to the best of their recollection and without guile or cunning. At no time in my opinion did either of these witness appear to be evasive, or concerned in giving evidence that they regarded as helpful to their case, regardless of its truth. Moreover, in general terms, I prefer the evidence of the defendant and his wife in virtually all cases where it is in conflict with the evidence of either of the plaintiffs.
49 On the other hand, I have formed the opinion in relation to the first plaintiff that, having regard in particular to the manner in which he gave answers to questions, as well as the substance of those answers, the first plaintiff was anxious to give answers which supported the case which he was propounding, even if those answers were not strictly in accordance with the facts, so long as the answers were more of less equivalent to the actual facts. I record, however, that I do not mean to suggest that the first plaintiff gave deliberately false evidence, but rather that he sometimes gave evidence which supported his case on the basis that he had persuaded himself that that evidence was true.
50 A prime example of the first plaintiff giving evidence of facts which did not actually occur, but which, in his view were more or less equivalent to the actual facts, was his evidence to the effect that although he had stated in evidence that the defendant had said to him that the takings of the business were $300,000 yearly, he (the first plaintiff) could not actually remember the defendant saying those words although the defendant had said that the weekly takings were $6,000 regularly, from which the first plaintiff had “extrapolated” from $6,000 weekly to $300,000 yearly, which he considered entitled him to give evidence, contrary to the fact, that the defendant had actually said that the takings of the business were $300,000 yearly.
51 On behalf of the plaintiffs it was submitted that there were ten reasons why the takings sheets could not be accepted as reliable and it is convenient to deal with these submissions in turn.
52 The first submission on behalf of the plaintiffs in this connection was contained in paragraph 64.1 of the first written submissions on behalf of the plaintiffs namely, that: “A. Turnover of $5,000 a week would be akin to a miracle for Lees’ business” having regard to the matters set out in the written submissions, a copy of which will be left with the papers.
53 After extracting details of the turnover of the business and the nett taxable profit for the financial years ended 1991 to 1997, both inclusive, it was submitted on behalf of the plaintiffs, inter alia, that at no time did annual turnover exceed $50,000 in two successive years; at no time did turnover average $5,000 per week for a full year; turnover in the 1996 year exceeded turnover in the 1995 year by 295 percent; turnover in the 1997 year was down 89 percent of the turnover in the 1996 year; the average weekly turnover in the 1996 year was $3,382; according to the taking sheets, turnover during the 1996 year, exceeded $5,000 on a sustained basis for just three months (i.e. between 19 August and 23 November 1995) - the period when the business was sold; the defendants admitted in cross-examination that the business was barely providing them with a living, for most of the time that they owned it; until the 1996 year the highest annual taxable profit of the business was $29,470; in the 1995 year the taxable profit of the business was only $11,812; the 1996 profit of $64,654 represented a 447 percent increase over the taxable profit in the 1995 year and the 1996 year profit was not sustained since in the 1997 a trading loss of $13,393 was incurred.
54 The written submissions continued as follows:-
“Given the circumstances, the 1996 trading results can only be described as an aberration. Nevertheless, can the aberration be rationalized.”
55 The statistics from the Department of Immigration and Multi-Cultural Affairs indicate that in the 1995-1996 year the total number of working holiday maker arrivals from Korea was 550 whilst the corresponding figure for the following year 1996-1997 was 1,712.
56 Submissions on behalf of the plaintiffs then went on to acknowledge that the explanation given by the first defendant was that the business enjoyed an increase in patronage in the 1996 year because from July 1995 there was an increase in Korean tourists coming to Australia as they did so on “working holiday visas”. It was submitted on behalf of the plaintiffs that the official Department of Immigration and Multi-cultural Affairs statistics (Exhibit N) indicated that only 550 Koreans came to Australia on working holiday visas during the whole of the 1996 financial year. It was submitted on behalf of the plaintiffs “that this is hardly a significant number …because (it was) unlikely that all of the 550 visitors would have come to Sydney, visited the business and paid to pay billiards.”
57 It was further submitted that the relationship between these visitors and the increased turnover of the business was destroyed by reference to the 1997 year when the statistics indicated that 1712 Koreans came to Australia on working holiday visas during which year the turnover of the business decreased, not increased.
58 In my opinion, however, the relevant increase in turnover was explicable on the basis of the additional 550 Korean visitors to Australia who came on working holiday visas and it would seem reasonable to assume that many of that number came to Sydney rather than other cities in Australia. It would not be unreasonable also to assume that those who did come to Sydney may have visited the business of the defendants on many occasions. The ultimate decline in the turnover of the business thereafter may well have been contributed to substantially by the opening of the two billiard parlours referred to in opposition to the business of the defendants. Having regard to these considerations, inter alia, but in particular also to the fact that I am satisfied that the record keeping of the defendants as embodied in the takings sheets was in general accurate, I am of the opinion that it has not been established on behalf of the plaintiffs that the relevant figures contained in the taking sheets were other than generally accurate.
59 In this connection I note that the second plaintiff gave evidence, inter alia, as follows:-
“Q. To your knowledge and understanding there was a large influx of young Koreans to Sydney around 1995 and 1996?

A. I don’t know whether it was 1995 or 1996, but I do know lots of Korean young people came to Australia.”

60 The second defendant also gave evidence, inter alia, as follows:-
“Q. Now why do you say, Mrs Lee, that the business was going so well?

A. At the time in the year from 1 July there was the agreement between Korea and Australia to issue the working holiday visa to Koreans, so we have four or five teams of customers waiting one or two hours to play the game and so one of them just had to go because they could not wait any longer, so that at that time, the business was operating so well and it was a profitable business.
Q. How long had the business been operating well, then, Mrs Lee?
A. After 94. It got better at the beginning of 1995, from July it was going very well.
Q. So it is from July 1995 that things started to get better?
A. Yes. …
Q. It wasn’t going well in June 1995, was it, Mrs Lee, the business was not going well in June 1995, was it?
A. No it was going well from the July.
Q. But would you answer the question please; business was not going well in June 1995 was it?
A. It was going well.
Q. So you are telling the Court that there was a change almost overnight in the turnover?
A. Not overnight but during the winter holidays because from July, from July it is summer vacation in Korea and because the working holiday visa has begun to be issued and economy was booming so there were a lot of customers coming from Korea.
Q. Mrs Lee, you don’t know what the business turnover was for July 1995 do you?
A. I don’t know but it was good.”

61 In this connection I also note that the takings sheets continued to record sales of over $5,000 per week up until about mid January 1996, at which approximate time the two opposition billiard parlours had opened.
62 In further support on their submission that the taking sheets were inaccurate and could not be relied upon, it was submitted on behalf of the plaintiffs that the second plaintiff “caught” the defendants “red handed” falsifying the turnover sheets on three occasions.
63 The evidence in support of the alleged first such occasion was contained in paragraph 8 of the affidavit of the second plaintiff dated 17 June 1998 as follow:-
“In mid September I noticed Mrs Lee wrote on the takings sheets and hesitated when she saw me. Then she covered the sheet with some paper.”
64 It may be noted that this allegation was first made in the affidavit of 17 June 1998 more than two years after the initial affidavits were filed in this matter. In any event the allegations of the second plaintiff in this respect were denied by the second defendant and I am not satisfied in any event that the incident, even if it occurred as deposed to by the second plaintiff, constitutes any evidence of falsification of the taking sheets.
65 I am of the same opinion in relation to the alleged discrepancies between the takings sheets and what the second plaintiff observed on 26th, 27th and 30th September 1995, in respect of which, according to the second plaintiff, the takings sheets showed more tables being used than was in fact the case whilst the second plaintiff was present. The second plaintiff was unable to identify the tables which he said were being played on 30 September and the defendants deny that in any relevant respects the taking sheets were inaccurate.
66 The first defendant gave evidence that in early October 1995 the second plaintiff came to the premises every day for a few weeks after they signed the 11 September 1995 agreement. On one occasion the first defendant gave the first plaintiff the takings sheets which he had up to that date. The first plaintiff returned the sheets the next day. A couple of days later the second plaintiff came to the premises with a photocopy of the sheet for 29-30 September 1995 and said words to the effect that between 4.30 and 5.30 pm on 30 September he saw only two tables being played and the taking sheets recorded that eight tables were being played and then asked whether the first defendant had been “making up these figures”. The first defendant denied that there had been any inaccuracy in what was recorded on the takings sheets. The matter was again raised the following day by the first and second plaintiffs who went with the first defendant to the coffee shop on the ground floor of the building. The matter was then further discussed but the second plaintiff was unable to remember the numbers of the tables that he said had been played. According to the first defendant the first plaintiff also said to the second plaintiff that if he could not remember the number of tables, or which tables they were, how could he say there were only two tables. The second plaintiff did not reply and the first plaintiff walked out of the coffee shop.
67 In the letter dated 26 October 1995 from the solicitors for the plaintiffs to the first defendant it was stated as follows:-
“On 30 September 1995 you provided to our clients a chart of takings from tables from opening to close of business. Our client in attending the business between the period of 4.30 pm to 5.30 pm observed in that period of time a total of three tables being played. Your chart of takings shows eight tables as having been played. This is a clear falsification of takings from the business.”
68 The first defendant replied by letter dated 30 October 1995, inter alia, as follows:-
“Koh’s statement has a lie.

Koh states that during the hour between 4.30 pm to 5.30 pm on that day there were 3 tables being played. This is also a lie.
3 tables was the number of tables I said I would provide witnesses to Koh when Koh had been insisting that there were only 2 tables being played. So when I told him this (that I have at least three witnesses/players), he changed his story and told you 3 tables.
I explained to Ryu and Koh that when customers are playing on tables it is a good idea to write their names down so that you know who played where and who should pay and that 3 tables player names were written down during that hour. In downstairs café on 11th Oct 1995 (between 1 pm to 2 pm).
Koh said: between 4.30 pm to 5.30 pm, there were only 2 tables being played, he said and insisted many numbers of times.
I said: Tell me the Table Numbers of the two tables you say.
Koh said: I do not know the Table Numbers.
I said: Then, let’s cover the game record chart and go upstairs and you point the tables you say that were being played.
He said: I don’t remember which tables they were exactly.
At this point Ryu got angry and said to Koh: Not being able to remember to say which tables, and still insist that you are right does not make sense.
Koh then became speechless.
After that, Ryu was too upset so he just said: Work it out between you two, then walked out of the café and went to his office. After a while Koh went, too.”

69 This version of the relevant events written four weeks or so after the relevant events I find is likely to have been accurate and corroborates to some extent, in my opinion, the version of these events given by the first defendant, which, in general terms, I accept.
70 Both the first and second defendants also denied an allegation by the second plaintiff that at some time after 2 am on 27 September 1995 he (the first defendant) and his wife locked up the billiard hall and descended in the lift together with the second plaintiff to the street level, after which the parties walked to their respective motor vehicles. The first defendant denied in particular that he had ever closed the billiard hall in the company of the second plaintiff.
71 In all the circumstances I am not satisfied that these alleged events support the allegation on behalf of the plaintiffs that the taking sheets were inaccurate. In this connection I note that the defendants gave precise and detailed evidence which was in conflict with the evidence given in this respect by the second plaintiff including evidence as to the circumstances in which the premises were locked on a particular evening when the second plaintiff says he was present. In all the circumstances in this respect also, I prefer the evidence of the defendants to that of the second plaintiff, although I do not find that the evidence of the second plaintiff was deliberately false, rather that his evidence was inaccurate, having regard to the time that had elapsed since the events as to which he was giving evidence.
72 In relation to the events of 30 September 1995 I note that the second plaintiff gave evidence, inter alia, as follows, in cross examination:-
“Q. Now what you have just given to the assistant, is that the notes that you said you made in the period between 11 September and 30 September?

A. Yes, and on 30 September I stayed only from 4.30 to 5.30, so I only - I did not take note, I just remember what the situation was…
Q. You didn’t take any notes or make any notes during the period 4.30 to 5.30 on 30 September, did you?
A. No.
Q. So when you were preparing this document, that is in front of you - have now on 2 or 3 October, you were relying on your memory from 30 September, weren’t you?
A. Yes…
Q. The only takings sheet you ever asked Mr Lee to show you was the one of 30 September?
A. Yes, before that date I just saw roughly through the - through his - sheet, I did see it, but officially the time I asked to give me a copy, yes, it was the only one …
Q. And he said to you, Mr Lee said to you didn’t he, can you tell me which table numbers were being played?
A. Yes, he did, I think he did.
Q. And you said to him in response, ‘No, I don’t remember the numbers the table numbers’?
A. Yes, because the table numbers were not numbered in an orderly fashion. It was table numbers, somehow it wasn’t orderly fashion and also I trusted Mr Lee up until that time.
Q. Now, Mr Lee then said to you, ‘Well let’s go up now and you show me which tables were being played’, he said that to you, didn’t he?
A. Yes, he did.
Q. Yes, and you said to him, ‘No, I don’t remember which tables were being played, didn’t you?
A. Because the table numbers were not numbered in orderly fashion.
Q. This conversation took place in the coffee shop in the ground floor, didn’t it?
A. Yes, it was…
Q. He said to you, ‘Let’s go upstairs now and you point out to me which tables you say were being played’?
A. He did, but he like I said, he was quite upset and he was very excited and he wasn’t very calm so I wanted to avoid that situation.
Q. So you said you wouldn’t go?”

73 I also reject the submission on behalf of the plaintiffs that the “taking sheets are impossible to understand”. They are certainly complex and complicated and, as the submissions on behalf of the plaintiffs stated, “intricate,” but they are, in my opinion, nevertheless capable of being understood with the assistance of the evidence from the defendants and their three children, assisted by an examination of the taking sheets themselves.
74 As stated above I accept the explanations of the defendants as to the taking sheets as well as the explanations of their three children and I find them all to be witnesses of truth, which is not to say that the second defendant did not make certain mathematical errors which when pointed out to her, she readily agreed with. As stated above I found her evidence in general, as well as the evidence of the first defendant, to be reliable.
75 It was further submitted on behalf of the plaintiffs, in support of the submissions made on their behalf that the taking sheets were false, that “the taking sheets cannot be verified” by reason of the absence of bank accounts into which the takings were paid and out of which the expenses were paid. Whilst bank accounts and books of account and other financial records would have been of assistance their absence, in all the circumstances, does not lead me to conclude that the taking sheets were false.
76 Reference was also made on behalf of the plaintiffs to the fact that after the signing of the contract the first defendant was prepared to sign a document for the bank manager of the plaintiffs to the effect that the turnover of the business was $3,920 per week. This figure is certainly curious, having regard to condition 7 of the contract in which it was stated, in effect, that the takings of the business were between $5,000 and $7,000 per week and it is hard to see why the bank manager would not have been happier with a statement to that effect, rather than a statement to the effect that the weekly takings were only $3,920. Nevertheless I accept the evidence of the first defendant that he was prepared to sign the document at the request of the first plaintiff and without intending to make any admission to the effect that the takings in the business were less than the $5,000 to $7,000 referred to in condition 7 of the contract. Accordingly, this evidence does not satisfy me, or contribute to satisfying me, that the taking sheets were relevantly false.
77 The plaintiffs also relied in their written submissions in support of their submission that the taking sheets were inaccurate upon their allegation that the defendants “together with F. Nicolai made a fraudulent application for loan finance to the ANZ Bank” and that the defendants made a fraudulent application for loan finance to the Community First Credit Union”. The details in support of these allegations are contained in the submissions of the plaintiff which, as stated above, I will leave with the papers. In my opinion, in respect of these matters, the defendants did not knowingly and deliberately sign false documents. Rather, in my opinion, having regard to their poor knowledge of the English language in particular, they were asked by a certain person or persons to sign those documents and trusted the person or persons who asked them to do so without having any real knowledge of what was contained in the documents. This may have been foolish to say the least but the relevant circumstances in this connection do not satisfy me, nor contribute to satisfying me that the taking sheets were false.
78 Evidence relevant in this connection including the following cross-examination of the first defendant:-
“Q. Mr Lee, you knew the Nicolai tax returns or the tax returns supposedly prepared by Mr Nicolai were false tax returns, is that right?

A. I do not know anything about that. Now I saw the document, things are different. I mean at that very time I was told not to worry about anything, just to sign it and that’s what I did.
Q. I suggest that you knew that the tax returns prepared by Mr Nicolai were given to the ANZ Bank as part of this application?
A. I never gave any of the documents to the Bank. I do not know who Mr Nicolai is. If there was anything wrong with this. I did not even get the loan. I did not. If I knew that anything was false I would not have proceeded with it…
Q. And when you signed it, were there any officers from the bank present?
A. There was a lady.
Q. I suggest that the lady read out the part of the document that appears in the top and she read these words to you -
A. She do say something.
Q. She said these words to you Mr Lee, ‘We acknowledge that the general terms and conditions associated with this loan have been explained and declare that the information that we have given in this application is true and correct. We have also completed a statement of financial position form which also forms part of this application’?
A. Yes.
Q. Can you remember the lady saying those words or similar words to you Mr Lee in English when you signed this form?
A. She did say something in English but never translated those words.
Q. Did you understand what she said or not?
A. No, I didn’t.
Q. Did you ask her any questions?
A. I did not ask any questions. The person who assisted me then I asked.
Q. And who was that person?
A. Lim Bong.
Q. Is that person also called Danny?
A. Yes.
Q. Did Danny explain to you what the lady was saying?
A. He did not actually translate the words to me …
Q. Did Danny explain to you what the translator put to you was included or was printed there on the form?
Q. Did Danny say anything to you to the effect that those words that were translated to you a moment ago?
A. No he didn’t do so.
Q. Well, I suggest Mr Lee that when you signed this form that the words that were explained to you a minute or two ago were understood by you, is that right?
A. I wish I did because I was signing it without understanding it, but the person who assisted me just asked us to sign and leave everything to him…
Q. Do you know the name of the person from the ANZ Bank who helped you?
A. As I told you before, his Korean name is Ing (Lim?) Bong and his English name is Danny. I can’t recall the correct spelling of his name”.

79 Danny was apparently a long time patron of the billiard parlour who later obtained employment as a bank officer at either or both (at different times) the ANZ Bank and the National Bank as appears from the following cross-examination of the first defendant.
80 The first defendant also gave evidence as follows:-
“Q. I suggest to you, you knew the income shown on your 1995 tax return was $5,906?

A. Because I do not understand English documents, you know, whenever it is necessary for me to sign any English document I have to bring that document to show to my accountant and in the presence of my accountant I signed it.
Q. What did Danny approach you about Mr Lee?
A. Since he started at university he was regular customer to my billiard room. So he came to my billiard room for play. After he graduated from the university I was told by him he was receiving some training from the National Bank and that sometimes he dropped in my billiard room …
Q. Did you go to Danny and say, ‘Can you please help me to get a loan?’
A. Yes. He just, you know, dropped by my billiard room and sometimes playing and sometimes just sitting on the benches.”

81 In the context of questions relating to an application by the defendants for a loan from the Community First Credit Union, the following questions and answers appear:-
“Q. Do you understand what the bank officer said to you about this document?

A. I didn’t understand the nature of the document, but I just trusted that guy and then I believed him, so I just signed.
Q. When you say you believed him, what did you believe Mr Lee?
A. I mean, you know, I trusted his character, you know, and also you know, our relationship which had been established over many years, from the time he actually studied at university and until he graduated from university he was one of long long term friends.”

82 It was also submitted on behalf of the plaintiffs that I should disbelieve the evidence of the plaintiffs in relation to the throwing away of the taking sheets before 19 August 1995 and in relation to the receipt of money by the defendants from Korea in the circumstances disclosed in the evidence. Once again the details are contained in the written submissions filed on behalf of the plaintiff. In my opinion, however, the defendants were truthful in relation to their evidence on both of these matters and, accordingly, in my opinion, that evidence lends no support to the submission made on behalf of the plaintiffs that the takings sheets were false.
83 I accept the evidence of the first defendant as to the circumstances in which takings sheets prior to 19 and 20 August 1995 were inadvertently thrown out, probably late September or early October. The relevant taking sheets covering the period 11 September 1995 to 9 October 1995 are available and show the required level of turnover. The first defendant told the second plaintiff as early as October that the records had been disposed of and were not available and I note that those circumstances were referred to in the letter of the first defendant to the solicitor for the plaintiff dated 30 October 1995 replying to the letter of 26 October 1995 from the solicitors for the plaintiffs. In his letter dated 30 October 1995 the first defendant stated inter alia, as follows:
“The records other than those of the above period were misplaced or thrown away because when my (wife) and I thought that we were selling the business we cleaned some spaces of the shop and they seemed to have been with the rubbish. When Ryu and Koh requested that they could see those records as well we tried to find them everywhere but they could not be found.”
84 This was consistent with the evidence given by the first defendant in his affidavit of 1 April 1996 as follows:-
“I do not have taking sheets before August 1995. In about October or November 1995 when I thought I had sold the business I was clearing out the billiard room. I had a man helping me clean it up because I thought I and my wife were selling. The taking sheets for the months prior to August were all in a box which unfortunately was thrown out…”.
85 It was also submitted on behalf of the plaintiffs that the defendants knowingly and deliberately made false statements in their income tax returns and that these circumstances together with the other circumstances relied upon should lead the Court to conclude that the taking sheets were false. In my opinion, however, as with the other documents referred to above, so in relation to the income tax returns I am of the opinion that, by reason principally of the unfamiliarity of the defendants with the English language, they signed those tax returns upon being asked to do so by some person or persons and did so for that reason without knowing that the returns contained any false statements. These facts together with the other alleged facts relied upon by the plaintiffs in this connection do not satisfy me, nor contribute to satisfying me that I should conclude that by reason of this other conduct the defendants falsified the taking sheets. Indeed, as stated above, I find that in general the takings sheets were accurate.
86 The defendants and, in particular, the second defendant rejected the suggestion that they had falsified the takings sheets as appears from the following cross examination:-
“Q. I suggest to you at some time you and Mrs Lee agreed and then altered the takings sheets in the four week period after 11th September 1995 to show that the business weekly takings were more than $5,000?

A. I think you are out of your mind because Mr Koh was there every day and he checked himself every day and what document, we did something.
Q. I suggest to you that in order to cover the changing or amendments you were making to the takings sheet you also altered the takings sheets throughout the rest of September 1995 and October 1995 so that they recorded the weekly turnover was more than $5,000 a week?
A. There was, I never ever, I never ever dreamed of altering takings sheets because they were written in, they were written in ball point pen and I could not erase or alter and also the credit records in the taking sheets as well, so I could never contemplate alteration. If you think that way you are something out of your mind.”

THE VALUATION EVIDENCE

87 Each of the parties tendered evidence in respect of the value of the business as at the date of the repudiation of the contract by the plaintiffs, namely 21 November 1995 (see letter of that date from the solicitors for the plaintiffs to the first defendant).
88 Two valuers gave evidence, namely, Mr Thomas William Scott on behalf of the defendants, and Mr David Nunnerley on behalf of the plaintiffs.
89 There was ultimately agreement between the parties on the maintainable annual income of the business which was to be adopted by the valuers for the purposes of the valuation of the business in the present case. The agreed figure was $136,938 derived by averaging the gross annual sales for the 1994,1995 and 1996 income tax years, but ignoring any events after 21 November 1995, including the opening of the two Korean Billiard Rooms in opposition. The valuers disagreed, however, on the expenses of the business were to be calculated and on certain other matters.
90 In his affidavit of 23 February 1999 Mr Scott was asked “to prepare a valuation of the business as at 21 November 1995 on the basis of historical income and expenses figures and disregarding any events after 21 November 1995, being the opening of 2 billiard halls in competition and a fall off in business.”
91 This approach involved having regard to the actual income figures for the business for the years ended 30 June 1994, 1995 and 1996, there being a very significant increase in income for the year ended 30 June 1996 as appears from Exhibit E being annexure A to Mr Scott’s affidavit. As appears from his affidavit however, Mr Scott, for the purposes of his valuation, adjusted the gross sales figure for the year ended 30 June 1996 as set out in Exhibit E (annexure A to Mr Scott’s affidavit) of $186,287 to $319,660.
92 As stated in paragraph 11 of Mr Scott’s affidavit:-
“11. Accordingly, as a matter of valuation method, I would proceed to find an average yearly income over the financial years 30 June 1994, 30 June 1995 and 30 June 1996. The latter year on a projected basis. The projected income for the year ended 30 June 1996 would be based on the known income for the full three months prior to 21 November 1995. That income in the three months period is $79,915. Extrapolating the income for the full year to 30 June 1996 from the three months, being $79,915 gives a projected nett income to 30 June 1996 of $319,660.”
93 Mr Scott then set out the gross sales figures for each of the three years, adjusted for the year ended 30 June 1996, as follows:-
30 June 1994 $ 44,045

30 June 1995 $ 47,108
30 June 1996 $319,660
Total: $410,813

94 Mr Scott then proceeded with his valuation upon the basis that the average weekly income for the said three years was, therefore, one third of $410,813 being $136,938.
95 I interpolate to note that the valuer called on behalf of the plaintiffs, namely, Mr Nunnerley, accepted this average yearly income figure of $136,938 for the purposes of his valuation also.
96 Mr Scott in his affidavit then considered the question of expenses and in this respect a difference of opinion did emerge between Mr Scott and Mr Nunnerley.
97 Mr Scott noted from Exhibit E (annexure A to his affidavit) that the total of the expenses in relation to the 1994 and 1995 tax years was seventy five percent and seventy six percent respectively. He did not think, however, that those figures should be applied to the increased level of income for the year ended 30 June 1996, because certain expenses, such as rent, were fixed and the level of expenses would not necessarily maintain the same ratio to income as income rises. He therefore considered that for the year ended 30 June 1996 expenses should be calculated in the order of sixty five percent of the gross income. The average of those percentages of expenses over the three income periods was seventy two percent. He then applied that percentage of expenses to the average yearly income over the three income years, namely, $136,938, which involved subtracting from that figure the sum of $98,595, being seventy two percent of $136,938, leaving a nett average income after expenses of $38,343.
98 Mr Scott then applied his “multiplier” of 1.3 referred to in his earlier affidavit of 4 April 1996 producing a figure of $49,845 for the value of the business as at 21 November 1995.
99 Mr Scott then noted that from the balance sheet as at 30 June 1995 there was plant, fixtures and equipment at written down value of $44,640, and expressed the opinion that, as at 21 November 1995, he would take the written down value of the plant, fixtures and equipment at about $38,000 allowing for further depreciation. He stated that he would then add that figure of $38,000 to $49,846 to arrive at a valuation of the business, namely $87,845 as at 21 November 1995. In this connection, however, Mr Nunnerley took a different view and I prefer Mr Nunnerley’s view to that of Mr Scott for reasons which Mr Nunnerley gave (see later).
100 Mr Scott also noted that the difference between the method of calculation referred to above and the method contained in his affidavit of 4 April 1996 was that he had been asked to ignore and have no regard to events which occurred after 21 November 1995, in particular, those events relating to the opening of two other billiard halls in competition with the business.
101 In his report of 3 May 1999 Mr Nunnerley, the valuer called on behalf of the plaintiffs accepted, as stated above, Mr Scott’s nett average annual income figure of $38,343 (after expenses) but expressed the view that the expense ratio should be adjusted to an annual average of fifty eight percent because he (Mr Nunnerley) was “unable to accept the high expenses given in respect of the 1996 year and referred to in paragraph E8 of this report”.
102 In paragraph E8 Mr Nunnerley expressed the following view:-
“8. The composition of the items relating to expenses given in Exhibit E give rise to some concern. As referred to in paragraph 5 above, these expenses have been used to determine an average expense to income ratio, which is pertinent in establishing the nett income referred to in paragraph 6 above. It is particularly noted that some of the items of expenditure in 1996 clearly relate to non-recurring costs and which represent fairly high expenses and accordingly could distort the income expense ratio calculated. In particular, I refer to items charged for depreciation of $9,246, devaluation of $27,094, repairs and maintenance $12,296. These expenses cannot be accepted in the calculation of the expense ratio without appropriate explanation.”
103 I note from Exhibit E that whilst the figure for depreciation in the 1996 year is said to have been $9,264, for the 1994 and 1995 tax years that figure is stated to be $2,939 and $2,596 respectively. I also note that the “devaluation” figure for the 1994 and 1995 tax years is said to be not applicable as compared with $27,094 for the 1996 tax year. I also note that the figure for repairs and maintenance for the 1996 year are $12,296 compares with comparable figures for the 1994 and 1995 tax years of $597 and $819 respectively.
104 Having regard to these figures, and to the cross examination of the valuers, I am of the opinion that Mr Nunnerley’s estimate of the business’s maintainable earnings, namely $57,514 per annum arrived at by deducting average annual expenses of fifty eight percent from the average annual income over three years of $136,938 (fifty eight percent of that figure being $79,424) was justified in preference to Mr Scott’s estimate of $38,343 based on expenses of seventy two percent.
105 I am also of the opinion that a multiplier of 3 to 4 as adopted by Mr Nunnerley was justified in preference to the multiplier of 1.3 adopted by Mr Scott, having regard, in particular, inter alia, to Mr Nunnerley’s comments in section D of his report of 3 May 1999 where he states, inter alia, as follows:-
“2. Capitalization of nett income (or a multiplier of nett income) is an acceptable basis for the valuation of a business interest. The important issue is the choice of multiplier used. The multiplier used depends upon a number of circumstances, but particularly the nature of the business and more generally the rate of return expected by an owner of a small cash business.

3. Small cash businesses operating from leased premises with secure tenure historically offer investor/operators returns of between 20 percent and 33 percent per annum, the equivalent of between five and three times. There is obviously no public record of a rate of return which relates particularly to a billiard saloon. But leasehold pubs, motels, laundries, entertainment parlours and the like would be expected to yield returns within the above stated range to investors.
4. It is therefore my opinion that a multiple of 1.3 times applied by Mr Scott in his valuations is below market value and that a higher multiple would be appropriate”.

106 I note that in cross-examination Mr Scott stated that he had arrived at his multiple of 1.3 from comparable sales but that he no longer had them in his file. On the other hand Mr Nunnerley stated that he arrived at his earnings multiple based on comparable businesses listed in the businesses for sale section of the Sydney Morning Herald and from enquiries made of similar businesses.
107 Applying Mr Nunnerley’s multiplier of 3.8 to Mr Nunnerley’s average annual earnings figure of $57,514, Mr Nunnerley arrived at a valuation of the business as at 25 November 1995 of $218,000.
108 As stated in section F.2(b) of Mr Nunnerley’s report, this approach also ignores the value of plant, fixtures and fittings stated by Mr Scott at a value of $38,000 because “an income valuation assumes a nett return to the investor and if the value of plant, fixtures and fittings is added to the valuation, the nett return to the investor would be higher”. In my opinion, on the evidence, this approach is justified also and it follows that I accept as relevantly accurate the valuation of the subject business of the defendants as at 25 November 1995 of $218,000 as valued by Mr Nunnerley.
109 I record that I accept Mr Nunnerley’s valuation notwithstanding that, although he is a member of the South African Institute of Valuers, he is not a member of the New South Wales Institute of Valuers and does not practise as a valuer in Australia and as he said in evidence “nor did I seek registration from that Board, mainly because it was not necessary”. Mr Nunnerley insisted, however, and I accept, that he was aware of the relevant principles of valuation.
110 Mr Nunnerley’s valuation of $218,000 was contained in section F.2 of his report in the following terms:-
“2. On the basis of the information contained in the revised valuation given by Mr Scott on 23 February 1999 and assuming that the source information is correct, I would consider the value of the business as at 21 November 1995 to lie within the range of $172,000 to $230,000 being a 3 to 4 times multiple respectively. If the 3.8 multiplier is applied as referred to in the previous paragraph the value would be $218,000. In giving this opinion I have:

(a) Adjusted the expense ratio to annual average of 58 percent as I am unable to accept the high expenses given in respect of the 1996 year and referred to in paragraph E8 of this report.
(b) Ignored the value of plant, fixtures and fittings stated by Mr Scott at a value of $38,000. An income valuation assumes a nett return to the investor and if the value of plant, fixtures and fittings is added to the valuation, the nett return to the investor would decline.”
DAMAGES

111 In cases such as the present the measure of damages is based upon the principle that the plaintiff is entitled to be put in the position in which he would have been if the defendant had performed the contract.
112 The relevant principle has been expressed as follows:
“The general rule at common law, as stated by Parke B in Robinson v Harman, is ‘that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.’ This statement of principle has been accepted and applied in Australia.

The award of damages for breach of contract protects a plaintiff’s expectation of receiving the defendant’s performance. That expectation arises out of or is created by the contract”: per Mason C.J. and Dawson J in The Commonwealth v Amann Aviation Pty Limited (1991) 174 CLR 64 at 80.
“The measure of damages prescribed by Robinson v Harman ensures that the parties to the contract are kept to the benefits and the burdens of the contract they have made: the plaintiff recovers no more than the nett benefit he would have received under the contract; the defendant acquires no right to profit by his breach. The measure of damages for breach of contract is governed by the contract itself. As the contract determines the measure of damages for losses caused by its breach, there is a difference between the measure of damages in contract and the measure of damages in tort, although the purpose of damages in both is the award of compensation. The general principle on which compensatory damages are assessed was stated by Taylor and Owen JJ in Butler v Egg Pulp Marketing Board :
‘That principle is that the injured party should receive compensation in a sum which, so far as money can do so, will put him in the same position as he would have been in if the contract had been performed or the tort had not been committed. ’ (emphasis added)”: per Brennan J in The Commonwealth v Amman Aviation Pty Limited ibid.at 99.

113 It follows that there should be judgment for the defendants in respect of this part of their claim in the sum of $29,500 being the purchase price $275,000, less the value of the business $218,000 and less the deposit of $27,500.

DEFAMATION CLAIM

114 On 13 December 1995 the plaintiffs lodged a Real Property Act caveat that recorded their claimed interest in the business.
115 The alleged interest of the plaintiffs as claimed in the caveat was claimed in the following terms:-
“Equitable interest as purchasers of the business situate at Suite 401 of the land and transferees of the lease relating to Suite 401 of the land from Ian Inhwan Lee by virtue of the instrument referred to below…: Contract for Sale of Business 11 September 1995 …”.
116 The caveat stated that the registered proprietor of the property was “HANAVE INVESTMENTS COMPANY PTY LIMITED, 335-337 KENT STREET, SYDNEY, NSW 2000.”
117 The defendants claim damages for defamation in respect of three notices in the Korean language published in Korean publications subsequent to the date of lodgement of the caveat, each of which notices was followed by a notice in English in the following terms:
“This is to notify that a Caveat has been lodged with The Land Titles Office of New South Wales in respect of the premises known as Suite 401, 342 Elizabeth Street, Surry Hills occupied by Central Billiard.

Prospective purchasers should seek legal advice.
Legal advisers may address any enquiries to:
Messrs Benjamin & Khoury Solicitors Level 8 64 Castlereagh Street Sydney Tel: [phone] ”

118 The first of the three notices was published in the Sydney Weekly Korean News and Entertainment magazine of 15 December 1995 and was in the following terms:-
“The Central Billiard located in Surry Hills are currently with the New South Wales Land Titles Office. Caveat is being effective. Not to have any property damage you should be aware of this. Make sure to consult with your solicitor. The relevant solicitor should contact the below contact.”

(As translated in oral evidence by Mr Young D. Song at page 152 of the transcript).

119 The same advertisement was translated by the second plaintiff (Mr Koh) as follows:-
“Central Billiard located at Surry Hills. Currently at New South Wales Land Titles Office, caveat is effective, you should be aware of that. In order not to have any property damage make sure to have advice from legal adviser and the relevant solicitor should make enquiry to the below contact.”

(As translated by the second plaintiff (Mr Koh) in oral evidence at page 148 of the transcript).

120 In the written submissions on behalf of the defendants it was submitted as follows:-
“22. It is submitted that the best translation of those notices is that of Mr Song at T151-152. Those translations compare favourably with that of Mr Koh (the second plaintiff) at T148.5.”
121 It was submitted on behalf of the defendants that this notice (and each of the other two notices to be referred to below) contained the following imputation:-
“That the cross-claimant was untrustworthy in business and should be dealt with only with the assistance of legal advice.”
122 It was further submitted on behalf of the defendants that this imputation was defamatory and that as a result their reputations had been damaged.
123 The plaintiffs denied that the advertisements were defamatory of the defendants and further alleged that the imputation pleaded did not arise, that the imputation was not capable of causing harm to character or reputation, that the circumstances of the publication were such that the defendants were not likely to suffer harm, that the imputation was a matter of substantial truth and it was in the public interest and that the circumstances were such that the defence of qualified privilege arose.
124 The first defendant gave evidence by affidavit to the effect that after he read the advertisement in the Sydney Weekly Korean News and Entertainment magazine he “felt my good name and reputation was very severely damaged. I could not sleep and I still have trouble sleeping. For a few weeks I could not sleep at all and still suffer from disturbed sleep. For a number of weeks I lost my appetite and have only recently regained interest in eating food.” He further stated that he felt “that the bad name that the advertisements have given me will stick with me and my family for a long time. I believe my reputation and good name have been ruined. I say the Korean community is very tightly knit and people know everybody else’s affairs. I feel that people think I have done something illegal and that I am untrustworthy in what I was doing as a result of that advertisement.”
125 The first defendant also gave evidence that he recalled an incident with a friend of his whom he had known for ten years. He saw him in the Mandarin Club and was with his daughter Lynn in a large crowd of people. The first defendant went to shake hands with his friend but he refused to do so and the first defendant was “very offended”.
126 The second plaintiff also gave evidence by affidavit in relation to the advertisement published in the Sydney Weekly Korean News & Entertainment magazine of 15 December 1995 as follows:
“I say that when I saw that notice I became ill and very upset. Many people in the Korean community asked me about the advertisement. I felt ashamed and that people thought low of me and that I had done something wrong. Many people told me they thought the business was closed and so they were not coming to the business any more…

I had to go to the doctor and could not sleep for weeks after the advertisement appeared.”

127 The approach to be taken by the Court in this connection is, in effect, reflected in the provisions of section 7A of the Defamation Act 1974 (NSW) which so far as material is in the following terms:-
“7A. (1) If proceedings for defamation are tried before a jury, the court and not the jury is to determine whether the matter complained of is reasonably capable of carrying the imputation pleaded by the plaintiff, and if it is, whether the imputation is reasonably capable of bearing a defamatory meaning.

(2) If the court determines that:
(a) the matter is not reasonably capable of carrying the imputation pleaded by the plaintiffs; or
(b) the imputation is not reasonably capable of bearing a defamatory meaning, the court is to enter a verdict for the defendant in relation to the imputation pleaded …”.

128 In my opinion, the words in this notice were not and are not reasonably capable of conveying to a reasonable reader the imputation pleaded on behalf of the defendants and, in my opinion, those words do not in fact convey any such imputation.
129 In my opinion, the substance of this notice is to the effect that a caveat in respect of Central Billiards at Surry Hills has been lodged at the New South Wales Land Titles Office and that if anyone is proposing to have dealings with Central Billiards they should consult with their solicitor to avoid any property damage and their solicitor should make enquiry to the below contact. In my opinion, expressed more compendiously, the substance of the notice is simply that a caveat has been lodged in respect of Central Billiards at the New South Wales Land Titles Office, and that, to avoid damage, anyone proposing to deal with Central Billiards should consult their own solicitor who should contact the below contact.
130 So understood, as, in my opinion, the notice would be, by a reasonable reader, the notice carries, in my opinion, no imputation that the “owners” of Central Billiards are untrustworthy and should be dealt with only with the assistance of legal advice. Rather, in my opinion, the reasonable reader of the notice would reasonably understand the substance and general thrust of the notice to be to the effect that, because a caveat has been lodged with the New South Wales Land Titles Office in respect of Central Billiards, anyone proposing to have dealings with Central Billiards should consult his or her own legal adviser to be informed of the effect of such caveat, and in that connection that legal adviser should contact the undermentioned contact. In my opinion, the reasonable reader would not reasonably understand that it was intended to convey that the necessity or desirability of contacting one’s own legal advisers to be advised of the effect of the caveat was because the “owners” of Central Billiards were untrustworthy, but rather for the purpose of being advised as to the effect of the caveat.

131 I also note that I am of this view notwithstanding that the notices may have caused personal distress to the first and second defendants in the manner stated in their evidence. In my opinion, it would appear that this distress was caused by reason of the defendants forming an unreasonable view as to what would be conveyed to a reasonable reader by the notices. The same is true, in my opinion, in respect of the friend of the first defendant who refused to shake the hand of the first defendant in the circumstances mentioned by him as well as in respect of others referred to by the defendants.
132 I conclude, accordingly, that the defendants are not entitled to any damages in respect of defamation arising from the publication of this notice.
133 The second notice, which was published in the Korean Times of 22 December 1995, was in the following terms:-
“The Central Billiard Room located at Surry Hills. The sale suspension order is being registered with New South Wales Title Deed Office. You should be careful about this point in order not to have any damage.”

(As translated by Mr Song at page 151 of the transcript).
“Central Billiards Room located at Surry Hills. That application for sale suspension order which is registered with the New South Wales Title Deeds Registry. We wish to be careful about this not to have any damage”.
(As translated by the second plaintiff in oral evidence at page 145 of the transcript at which page the second plaintiff also gave evidence that the equivalent in the Korean language of the English word ‘caveat’ was ‘sales suspension order’).

134 In my opinion the words in this notice also, were not, and are not, reasonably capable of conveying to a reasonable reader the imputation pleaded by the defendants and accordingly, they did not carry any such imputation. In my opinion, the substance and general thrust of what would be conveyed by these words to a reasonable reader is that a caveat (sales suspension order) in respect of Central Billiards at Surry Hills is (being) registered at the New South Wales Land Titles Office so that anyone proposing to deal with Central Billiards should be careful because of this not to suffer any damage.
135 As with the first notice referred to above, this notice also, in my opinion, directs attention to the caveat (sales suspension order), and informs interested persons that, by reason thereof, they should be careful in relation to any proposed dealings with Central Billiards. The notice does not, in my opinion, convey, imply or carry the imputation that the “owners” of Central Billiards are untrustworthy and should be dealt only with the assistance of legal advice.
136 The third notice, which was published in the Weekly Korean Life Review of 22 December 1995, was in the following terms:-
“Central Billiard Room sale suspension. The Central Billiard Room located at Surry Hills, the sale suspension is being registered and pending with the New South Wales Title Deeds Office. You need to be careful about this point in order not to have any damage. “

(As translated by Mr Song at page 152 of the transcript).
“Central Billiard Room sale suspension. The Central Billiard Room located at Surry Hills sale suspension order is registered and pending with the New South Wales Title Deed Registry, you should be very careful about this you know not to have any damage.”
(As translated by the second plaintiff at page 146 of the transcript).

137 In my opinion, the words in this notice also, were not and are not reasonably capable of carrying the imputation pleaded by the defendants and, accordingly, does not do so. In my opinion, the substance and general thrust of what would be conveyed by those words to a reasonable reader would be the same as the substance and general thrust of the preceding notices as described above. In particular, I am of the opinion that the notice does not imply or carry the imputation that the “owners of the Central Billiards Room are untrustworthy and not to be dealt with except with the assistance of legal advice.”
138 I record that, to the extent to which it is appropriate to consider the claim for damages for defamation on the basis that the reader of the notices in the Korean language could and would also read that part of the notice printed in English, I am of the opinion that the English words support my view as to what would reasonably be conveyed to a reasonable reader of the Korean words as stated above. In other words, the result is, in my opinion, no different if the Korean words are to be considered as being read by a reader who does not or cannot read the English words.
139 I note in passing, that, although irrelevant, having regard to my findings, there was no evidence as to the circulation of the relevant publications, nor as to the numbers of Korean persons who might read such publications living in Sydney or elsewhere nor was there any evidence from any third persons who had read any of the notices and who, as a result thereof, had thought less of the defendants. I also note that the alleged distress allegedly caused to the defendants was not sufficient for them to find it necessary to take medical advice.
140 In my opinion, the claim of the defendants for damages in respect of the alleged defamation by the plaintiffs must be dismissed and it is unnecessary to deal with the other matters of defence raised on behalf of the plaintiffs.
FAIR TRADING ACT 1987 (NSW) CLAIM
141 The alleged misleading and deceptive conduct on the part of the first defendant which was relied upon on behalf of the plaintiffs was described in the plaintiff’s written submissions as follows:-
“4.2 The misleading and deceptive conduct that the plaintiffs rely upon are representations (“the representations”) made by the first defendant to the first plaintiff that:

4.2.1. Mr Lee’s business had an average weekly turnover of $6,000.
4.2.2. Mr Lee’s business had had an average weekly turnover of $6,000 for some time.
4.2.3. The weekly turnover of $6,000 of Mr Lee’s business would continue in the future.
4.2.4. Mr Lee’s guaranteed that the business’ weekly turnover was $6,000 a year.
4.2.5. Mr Lee’s business had an annual turnover of $300,000 a year.
4.2.6. The business’ turnover had been $300,000 a year, for some time.
4.2.7. Turnover of $300,000 would continue in the future.
4.2.8. The takings sheets of Mr Lee’s business for the years that the defendant had been in business, were contained in a box and the takings sheets indicated that the business had been turning over $6,000 per week for some time.
4.2.9. The business was for sale at a price of $300,000 which demonstrated that the weekly turnover was $6,000. His business had an average weekly turnover of $6,000.”

142 As stated above, the first defendant in his affidavit of 1 April 1996 gave evidence that the first plaintiff asked how much he (the first defendant) wanted for the whole of the business to which the first defendant replied by asking the first plaintiff whether he would pay $300,000. According to the first defendant, whose evidence I accept in this respect and generally, the first plaintiff replied that he would give the first defendant $250,000 to which the first defendant replied that he wanted $300,000 whilst the first plaintiff had offered $250,000 and then the first defendant said words to the effect:
“That’s a positive yes. Split the difference between us and I will take $275,000”

to which the first plaintiff agreed.

143 The first plaintiff agreed in his affidavit of 17 June 1998 the first defendant “suggested splitting the difference between us (being the difference between $300,000 and $250,000) to arrive at a price of $275,000”.
144 The second plaintiff also gave evidence on this subject consistent with the evidence of both the first plaintiff and the first defendant, inter alia, in paragraph 6 of his affidavit of 2 February 1996 as follows:-
“6. Mr Ryu then showed me some documents about the financial situation of the business, which showed that the business was grossing between $5,000 and $7,000 per week. I understood and believed from what Mr Ryu told me that Mr Lee said to him that the business expenses were about $800 a week. I agreed with Mr Ryu that on the basis of this information that the price was acceptable. After further discussions with Mr Ryu we agreed to offer $275,000 for the business. This was agreed and I signed the contract with Mr Ryu and Mr Lee…”.
145 Although the evidence from the first defendant was contained in the first defendant’s affidavit of 1 April 1996, it was not responded to by the plaintiffs until over two years later when the first plaintiff made his affidavit of 17 June 1998 in which the first plaintiff gave evidence that the first defendant had said to him on the relevant occasion that “The value of this business is determined by the total takings over a year. The average weekly takings is about $6,000 up to now. So it comes to around $300,000 a year. I guarantee a yearly turnover of $300,000 taking into account average weekly takings of $6,000.”
146 In this affidavit the first plaintiff also gave evidence for the first time that “Mr Lee said on a number of occasions: “The business is going well”. Several times he told me: “The business is taking over $7,000 a week”. In the same affidavit the first plaintiff gave evidence that the first defendant said words to the effect: “Look, we are the same Koreans. If the average weekly takings are not $6,000 or the yearly turnover is less than $300,000, how can I keep my face in Korean society in Sydney. I will also help you with the business. How could I keep seeing you if the takings were wrong?”
147 To the contrary of this evidence from the first plaintiff, however, the following question and answer appears in the cross-examination of the first plaintiff:-
“Q. We just want to get out what words came out of Mr Lee’s mouth, and what words came out of yours, now Mr Lee didn’t say in words, did he, I guarantee a yearly turnover of $300,000, he didn’t say those words, did he?

A. I, I couldn’t remember that, whether he says that words or not, couldn’t remember right now, but I still vividly remember that because he guarantees average weekly earnings of $6,000, it comes yearly based $300,000 whether it was guaranteed $300,000 or not I don’t remember that.”

148 In the face of the first plaintiff’s express admission that the defendant did not use the words “$300,000 yearly” his evidence to the contrary must be rejected.
149 The first defendant denied that he mentioned $6,000 as the average weekly takings and further denied that he ever guaranteed a yearly turnover of $300,000 taking into account average weekly takings of $6,000.
150 The first plaintiff and the first defendant were cross-examined about this alleged conversation and, as stated above, and for the reasons referred to above, inter alia, I prefer the evidence of the first defendant in this regard, as well as generally. I note, in particular, that the first defendant’s version of this conversation was not responded to by the first plaintiff until over two years after the first defendant had made his affidavit dealing with these matters. I also note that in the first plaintiff’s affidavit of 16 June 1998, as stated above, the first plaintiff alleged that the first defendant also stated “several times” that “The business is taking over $7,000 a week”. This in itself in my opinion seems to be inconsistent with the same person (the first defendant) stating that “the average weekly takings are about $6,000 up to now … I guarantee a yearly turnover of $300,000 taking into account average weekly takings of $6,000.”
151 I note further that in his affidavit of 17 June 1998 the first plaintiff also said that he “did not ask for further details because that would indicate a lack of trust, which is important in business dealings in Korea and we had got to know each other over the last 18 months”. That being so, it seems, to say the least, improbable, in my opinion, that the first defendant would have said to the first plaintiff “Look we are the same Koreans. If the average weekly takings are not $6,000 or the yearly turnover is less than $300,000 how can I keep my face in Korean society in Sydney. I will also help you with the business. How could I keep seeing you if the takings are wrong?”
152 Accordingly, I find that the first defendant did not make to the first plaintiff any of the alleged representations to the effect that the business had an average weekly turnover of $6,000 and/or an annual turnover of $300,000 a year.
153 If, contrary to the my present view, I had concluded that such representations were made by the first defendant to the first plaintiff, I would have also concluded that neither the first nor second plaintiff relied upon any such representation, but relied rather upon the terms of condition 7 in the contract which were indirectly to the effect that the business would have a turnover of from $5,000 to $7,000 weekly during the relevant four week period envisaged by the contract from 11 September 1995 to 9 October 1995, remembering always that the contract had been drawn up by the first plaintiff and altered by the first defendant in the presence of the first plaintiff and with the first plaintiff’s consent.
154 I also note in this connection, that, as stated above, there is no mention of these alleged conversations in the first plaintiff’s original affidavit of 2 February 1996. Nor is there any mention in this affidavit of the first plaintiff of 2 February 1996 of the matter referred to in paragraph 11 of the affidavit of the first plaintiff of 17 June 1998 which is in the following terms:-
“11. He (the defendant) added words to the effect that ‘We are brother Koreans. If you want I can show you takings sheets for all the years we have been in business which I keep in a box.’ ”
155 I also note in this connection that, as stated above, the amendment raising for the first time the claims of misleading and deceptive conduct was not made until 17 June 1998 after cross-examination of the plaintiffs and several days cross- examination of the defendant’s wife.
156 I also note, as stated above, that, although the first plaintiff drafted the contract of 11 September 1995, that contract refers only to weekly sales volumes of $5,000 - $7,000 (which is stated to be guaranteed by the defendant to the plaintiff) and there is no mention of any yearly sales figure of $300,000 or any other figure on a yearly basis, nor is there any mention of any guarantee of any such yearly figure.
157 Finally, I note that, as stated above, the defendant, whose evidence I have, as stated above, I prefer to the evidence of the first plaintiff, where there is a conflict, has given evidence denying that he said words to the first plaintiff to the effect of the alleged misleading and deceptive representations.
158 Having regard, inter alia, to all these considerations, I find on the balance of probabilities, that the first defendant did not say anything to the first plaintiff which would support a finding as to the making of any of the alleged representations relating to a yearly figure of $300,000 or relating to the guarantee of a yearly figure of $300,000 as the turnover of the subject business. I also find that the defendant did not say anything to the first plaintiff to the effect that the weekly takings of the business were $6,000 weekly. In this connection I accept the defendant’s version of the circumstances in which the contract of 11 September 1995 was amended so as to refer to a weekly sales volume of the business as being $5,000 - 7,000, namely, that the contract as originally drafted in the Korean language by the first plaintiff and handed to the defendant referred to the weekly takings as being A$7,000 in respect of which the defendant told the plaintiffs that $7,000 was too high, that the business was a cash business and that sometimes it was more and sometimes it was less, so that he wanted to cross out the $7,000. The first plaintiff responded that he did not want it crossed out and suggested that it should remain “a bit less”, namely - “$5,000 - $7,000” to which the defendant agreed and altered the contract accordingly.
159 It follows from all of the foregoing considerations, that I reject the claims of the plaintiffs that the defendant made the alleged representations as claimed by the plaintiffs.

ORDER OF THE COURT

160 The order of the Court will be that there should be judgment for the defendants in the sum of $29,500.00 but that otherwise the cross claim of the defendants should be dismissed, and that the plaintiffs should pay eighty five percent of the costs of the defendants of the proceedings including the cross claim, the deduction being in respect of the claim for damages for defamation in respect of which the defendants have failed.
161 I direct the defendants to bring in short minutes of order, after discussion with the plaintiffs, giving effect to these reasons for judgment.

********

Last Modified: 12/01/2000