Tradesman Technologies Pty Ltd v Ameduri [No 2] - [2012] WADC 85

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: TRADESMAN TECHNOLOGIES PTY LTD -v- AMEDURI [No 2] [2012] WADC 85

CORAM: STONE DCJ

HEARD: 11-14, 17-21, 24 & 26 OCTOBER 2011

DELIVERED : 15 JUNE 2012

FILE NO/S: CIV 294 of 2011

BETWEEN: TRADESMAN TECHNOLOGIES PTY LTD
Plaintiff
AND
JOHN AMEDURI
Defendant

Catchwords:

Contract - Construction and interpretation - Representation - Misleading or deceptive conduct - Unconscionable conduct - Evidence - Admissibility of documents - Scope and effect of s 1305 of the Corporations Act - Witness - Credibility - Indemnity from prosecution

Legislation:

Corporations Act 2001 (Cth) s 9, s 286(1), s 1305(1), s 1305(2), s 1306(5), s 1306(6)
Trade Practices Act 1974 (Cth) s 51A, s 51A(2), s 51AC(2)(a), s 51AC(2)(b), s 51AC(4), s 51AC(7), s 51AC(8), 51AC(12), s 82(1)
Evidence Act 1906 (WA) s 11, s 79C
Fair Trading Act 1987 (WA) s 9, s 9(2), s 10, s 79(1)
Interpretation Act 1984 (WA) s 5

Result:

Claim dismissed

Representation:

Counsel:

Plaintiff: Mr P J Hannan
Defendant: Mr N D C Dillon

Solicitors:

Plaintiff: De Vita & Dixon Lawyers
Defendant: McDonald Pynt

Case(s) referred to in judgment(s):

Australian Securities & Investments Commission v Rich (2005) 191 FLR 385
Bell Group Ltd (in liq) v Westpac (2008) 39 WAR 1
City & Suburban Group Pty Ltd v Gambetta Holdings Pty Ltd [2011] WASCA 233
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Commercial Bank of Australia Ltd v Amadio (1982-1983) 151 CLR 422
Helton v Allen (1940) 63 CLR 691
Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2001] FCA 1056
Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197; (2002) 122 FCR 110
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10
Watson v Foxman (1995) 49 NSWLR 315
Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45

STONE DCJ:

Introduction

Tradesman Technologies Pty Ltd (Tradesman), a company previously known as Concepts 2000 Ltd imported from overseas and supplied in Australia traffic related products such as cones and bollards. Mr Sergio Cotellessa was the sole director of Tradesman which traded as Tradesman Technologies.
Signs All Pty Ltd, a company previously known as Traffic Products Group Pty Ltd and later known as Allpack Signs Pty Ltd (Allpack), purchased traffic products from Tradesman. Mr Con Scrinis was the sole director of Allpack.
In mid-2008 Mr Cotellessa sold Tradesman for a share in a combined group of companies called The Traffic Group. The Traffic Group, which included Allpack, was involved in selling traffic products. A few months later Mr Cotellessa did not want to be a member of The Traffic Group and he wanted the return of Tradesman. Tradesman was subsequently transferred back to Mr Cotellessa on the understanding that Tradesman would only supply The Traffic Group and its associated companies with traffic products.
On or about 19 January 2009 Tradesman, Mr Cotellessa and his associated companies as suppliers entered into a written supplier agreement with The Traffic Group and its associated companies (Restricted Supply Agreement). Under the terms of the Restricted Supply Agreement Tradesman, Mr Cotellessa and his associated companies promised The Traffic Group and its associated companies that Tradesman would only supply traffic products to The Traffic Group and its associated companies.
From time to time between July 2008 and April 2009 Tradesman supplied traffic products to Allpack in response to orders placed by Allpack. Tradesman rendered invoices to Allpack for the traffic products. The amount owed by Allpack to Tradesman as at 8 April 2009 was in dispute.
At all material times after October 2008 Mr John Ameduri who resided in Western Australia held a supervisory role with Allpack and he reported to Mr Scrinis who resided in Victoria. Mr Ameduri was authorised by Mr Scrinis to place orders on behalf of Mr Scrinis and Allpack for the purchase of traffic products from Tradesman. Mr Ameduri was an authorised signatory on cheques drawn by Allpack. On occasions Mr Ameduri was authorised by Mr Scrinis to sign documents on behalf of Allpack as the State Manager, director or director/secretary.
Mr Cotellessa and Mr Ameduri had been friends as teenagers. They crossed paths again during their business dealings several years before the events of this action. Their friendship and business relationship continued from that time and they saw each other regularly at the business premises of Tradesman or Allpack.
On 8 April 2009, by arrangement, Mr Cotellessa attended a meeting at the home of Mr Ameduri and his wife Mrs Karen Ameduri in Noranda. There was no dispute that at that meeting Mr Ameduri and Mrs Ameduri agreed to lend Mr Cotellessa $150,000 to be repaid by him by 30 November 2009. However, what was also agreed at that meeting was the subject of the dispute in the proceedings in CIV 294 of 2011 and the proceedings in CIV 3751 of 2009.
Mr Cotellessa claimed that at the meeting on 8 April 2009 an oral agreement was made between himself, Tradesman, Mr Ameduri on behalf of Allpack and Mrs Ameduri (Continuing Supply Agreement).
Mr Cotellessa claimed, in the pleadings in CIV 294 of 2011 and CIV 3751 of 2009, the Continuing Supply Agreement contained the following terms:
1.Subject to the term in sub-paragraph 3, Mrs Ameduri promised to advance $150,000 to Tradesman.
2.Subject to the terms in sub-paragraphs 4 and 5, Mr Cotellessa would be responsible for the repayment to Mrs Ameduri of the $150,000 to be advanced by Mrs Ameduri to Tradesman.
3.Mrs Ameduri was not obliged to make the advance in sub-paragraph 1 unless and until Mr Cotellessa had signed a document to the effect that $150,000 would be lent by Mrs Ameduri to Mr Cotellessa and repaid by 30 November 2009.
4.Subject to the term in sub-paragraph 5, Mr Cotellessa was obliged to pay Mrs Ameduri the advance in sub-paragraph 1 by 30 November 2009.
5.The obligation in sub-paragraph 4 was conditional upon Allpack:
(a)paying all invoices rendered by Tradesman to Allpack, within 30 days of the date of each such invoice, in respect of all supplies of traffic products to Allpack, made during the period from April 2009 to November 2009; and
(b)having paid by 30 November 2009 all outstanding invoices in respect of supplies of traffic products by Tradesman to Allpack made prior to 8 April 2009.
6.Subject to Allpack complying with the term in sub-paragraph 7, Tradesman promised to continue supplying Allpack with traffic products in accordance with the Restricted Supply Agreement.
7.The obligation in sub-paragraph 6 was conditional upon Allpack:
(a)paying all invoices rendered by Tradesman to Allpack, within 30 days of the date of each such invoice, in respect of all supplies of traffic products to Allpack, made during the period from April 2009 to November 2009; and
(b)having paid by 30 November 2009 all outstanding invoices in respect of supplies of traffic products by Tradesman to Allpack made prior to 8 April 2009.
8.In the event that Allpack did not comply with the conditions in sub-paragraph 5, then Mr Cotellessa was not obliged to pay Mrs Ameduri the advance in sub-paragraph 1 unless and until:
(a)all of the invoices in sub-paragraph 5 (a) were paid in full; and
(b)all of the invoices in sub-paragraph 5 (b) were paid in full; and
(c)all invoices for any traffic products supplied by Tradesman to Allpack after 30 November 2009 were paid in full.
Mr Ameduri and Mrs Ameduri denied there was discussion of a Continuing Supply Agreement.
Mr Ameduri and Mrs Ameduri claimed that following the meeting Mr Cotellessa, Mr Ameduri and Mrs Ameduri entered into a written agreement which was signed by them, as individuals, on 9 April 2009 (Loan Agreement). The Loan Agreement was in the following terms:
This is an agreement between John Ameduri and Karen Ameduri and Sergio Cotellessa. Ameduri to lend $150,000 to Sergio Cotellessa. The following monies will be paid back to Ameduri by 30 November 2009 with part payments to be paid as Cotellessa receives payments from Allpack Signs.
On 30 November 2009 Mrs Ameduri requested Mr Cotellessa pay $150,000 that was due under the Loan Agreement. Mr Cotellessa declined. Mr Cotellessa contended that the obligation to pay Mr Ameduri and Mrs Ameduri $150,000 was conditional upon compliance with the terms of the Continuing Supply Agreement and there had not been compliance.
Tradesman claimed that in late May 2009 a large quantity of Tradesman's traffic products stock had left its warehouse in Malaga for Allpack's warehouse in Malaga in response to orders placed by Allpack. Tradesman subsequently rendered invoices to Allpack for the traffic products.
Tradesman claimed that during May, July and September 2009 Mr Ameduri made representations to Mr Cotellessa to the effect that Allpack would soon have the financial capacity to pay Tradesman the outstanding invoices for traffic products supplied by Tradesman to Allpack after the Continuing Supply Agreement was entered into on 8 April 2009 and if Allpack did not pay Tradesman the outstanding invoices then he would make that payment. Tradesman claimed that in reliance upon the representations by Mr Ameduri Tradesman continued to supply traffic products on credit to Allpack during and after May 2009 and until about December 2009 and Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack during the period from May 2009 and until about January/February 2010.
Tradesman claimed that as at 30 November 2009 Allpack owed Tradesman approximately $501,566.88 for outstanding invoices for supplies of traffic products prior to 8 April 2009 and invoices rendered for supplies of traffic products during the period from April 2009 to November 2009. On or about 4 December 2009 Tradesman received a payment of $35,358.19 in part payment of outstanding invoices. Around that time Tradesman insisted Allpack pay cash for traffic products supplied by Tradesman.
In late April 2010 and early May 2010 Allpack sold its Western Australia and South Australia business operations. The National Australia Bank took the proceeds payable to Allpack for the sale of the businesses by virtue of a security held by the bank over the assets of Allpack. On 11 May 2010 liquidators were appointed to Allpack.
Tradesman claimed that as at 28 January 2011 Allpack owed Tradesman approximately $577,081.99 for outstanding invoices for supplies of traffic products prior to 8 April 2009; invoices rendered for supplies of traffic products during the period from April 2009 to November 2009; and invoices rendered for supplies of traffic products made after November 2009.
Tradesman claimed that Mr Ameduri, by his representations, engaged in conduct, in trade or commerce, that was misleading or deceptive or likely to mislead or deceive or unconscionable.
Tradesman claimed that Mr Ameduri should indemnify Tradesman for all unpaid invoices rendered by Tradesman to Allpack for supplies of traffic products during and after April 2009.
On 1 March 2011 a Registrar ordered that the proceedings in CIV 294 of 2011and the proceedings in CIV 3751 of 2009 be tried together before the same judge with evidence in one action to be evidence in the other.

Issues in dispute

1.What was agreed at the meeting on 8 April 2008? Was the Loan Agreement entered into in terms of the written agreement or, alternatively subject to the additional oral terms of the claimed Continuing Supply Agreement?
2.What documentation including Tradesman MYOB print outs, accounting documents relating to Allpack, reports to creditors and the Australian Securities & Investments Commission (ASIC) from the liquidators of Allpack and documents from the liquidators' office, relating to the affairs of Allpack, which had not been lodged with ASIC was admissible in evidence?
3.Did Mr Ameduri make the alleged representations?
4.Did Mr Cotellessa rely upon Mr Ameduri's alleged representations?
5.Did Mr Ameduri, by his alleged representations, engage in conduct, in trade or commerce that was misleading or deceptive or likely to mislead or deceive or unconscionable?
6.What were the correct construction and or operation of the terms of the Restricted Supply Agreement?
7.Had Tradesman complied with the Restricted Supply Agreement so as to be entitled to assert an entitlement pursuant to the alleged (guarantee/indemnity) representations?
8.Had Tradesman proved that Tradesman supplied to Allpack the traffic product for which the claimed outstanding invoices were rendered?
9.What was the extent of Tradesman's loss, if any?

What was agreed at the meeting on 8 April 2008? Was the Loan Agreement entered into in terms of the written agreement or, alternatively subject to the additional oral terms of the claimed Continuing Supply Agreement?

The evidence

Mr Cotellessa

Mr Cotellessa was an electrician by trade. He was an importer and distributor of a product with the brand name 'Tornado' which he supplied to electricians and plumbers. He operated the business of Tradesman from premises in Truganina Road, Malaga.
Mr Cotellessa had known Mr Ameduri when they were teenagers and they became reacquainted in 2006. Mr Ameduri was selling traffic products and he agreed to source the traffic products for Mr Ameduri because of his overseas importation experience and connections. He made his first delivery of traffic products to Mr Ameduri's company in mid- 2006. He continued supplying traffic products to Mr Ameduri's company until it was acquired by The Traffic Group. He then supplied traffic products to two customers, The Traffic Group and another company called Traffic Technologies. He understood Mr Ameduri was the 'organiser' of The Traffic Group to make it operate. Mr Scrinis, who was based in Melbourne, was the director of The Traffic Group.
Mr Ameduri visited Mr Cotellessa at his premises regularly and played darts on the dartboard.
Around June 2008 Mr Ameduri suggested Mr Cotellessa sell Tradesman for a 19% share in The Traffic Group. Later that month he sold Tradesman and joined The Traffic Group. A few months later he decided he did not want to remain in The Traffic Group and he wanted back his company. He asked Mr Ameduri to help him and Mr Ameduri agreed to speak to Mr Scrinis. Mr Ameduri subsequently told him: 'Look, spoke to Con. We've agreed you can have your company back but we only need you to supply us'. He agreed to the proposition.
On or about 19 January 2009 Tradesman, Mr Cotellessa and his associated companies as suppliers entered into the Restricted Supply Agreement with The Traffic Group and its associated companies.
Under the terms of the Restricted Supply Agreement Tradesman, Mr Cotellessa and his associated companies promised The Traffic Group and its associated companies that Tradesman would only supply traffic products, excluding the Tornado range to The Traffic Group and its associated companies at the rates and upon the payment terms in the agreement. The document was signed by Mr Cotellessa on behalf of Tradesman and by Mr Scrinis on behalf of The Traffic Group.
At the time Mr Cotellessa got back Tradesman, he had a substantial quantity of stock in his warehouse.
Under the terms of the Restricted Supply Agreement Tradesman was also required to supply The Traffic Group with its current stock list and The Traffic Group was required to advise what stock it could take immediately. Any remaining listed stock could be sold to other customers of Tradesman 'with any price differential credited to' The Traffic Group.
Mr Cotellessa and Mr Scrinis corresponded by a series of emails over the stock The Traffic Group would take from Tradesman but they did not agree on the price to be paid. He subsequently rejected Mr Scrinis's offer.
In early April 2009 Mr Ameduri came to Mr Cotellessa's premises in Malaga accusing Mr Cotellessa of supplying traffic products to other customers in contravention of the Restricted Supply Agreement and demanding that he cease. As far as Mr Cotellessa was concerned he had not been supplying others contrary to the Restricted Supply Agreement because he had been only delivering pre-ordered traffic products to Traffic Technologies.
Mr Cotellessa told Mr Ameduri:
You shouldn't be here talking to me about not supplying other people … I've got trade facilities I need to take care of. These people are good paying people, and you've stopped me from the trade supply.
Mr Ameduri insisted he stop supplying others. He was in no mood to be accused of something he was not doing. He told Mr Ameduri:
I need money … you want to stop me supplying people. I've got $400,000 worth of stock that I offered you, and I didn't have the time, and I'm not supplying other people. So if you're going to ask me to stop supplying people, I haven't gone on the road trying to sell these, you need to go home and write out a cheque for $150,000, then carry this conversation.
Mr Ameduri said: 'What if I gave you 150? … I'll talk with Karen and I'll try and get it over the line. We'll give you the 150 but you need to stop supplying other people'. He replied: 'I don't need to get it over the line. I just need - pay the accounts on time and I'm fine'. Mr Ameduri continued: 'I'll ask Karen for the money but it has to be as a loan'.
Mr Cotellessa said:
No. I have a problem. I've got too much stock. I'm paying too much rent'. Mr Ameduri said: 'I'll take the stock off your hands but you need to split it over months. So that means if you've got 50 of these - 100 of these, you need to split it 20 months. In five months, they're gone. You've got the room for that factory. You've got so many posts. We divide it into months.
Mr Ameduri went on to say: 'We can take the stock if we can split it over months - over - over three, four, five months, depending on the stock that we've got, we need to split the orders because we can't pay for it. Allpack doesn't have - doesn't have the money. So we need to split the stock, so that will take care of your stock'.
While they were discussing the 'split order' arrangement for the stock Mrs Ameduri rang for Mr Ameduri once or twice so they had to finish their discussion.
Mr Cotellessa explained his thought processes at the time were:
$150,000 doesn't change my life. So the deal was not the money; it was more getting rid of that stock. I reduced my rent, purchase orders for the stock that I've got … Johnny wanted the opportunity to split it over five, six, seven months, being up to November. If by November I would have moved $300-400,000 worth of stock that's been split, paid at the end of the month, I calculated I've got my money by November, dead stock not future orders, 'Johnny, take your 150. I've moved that stock. I'm paying less rent. Now, let's move on and do some business'.
A day or two later, Mr Ameduri telephoned inviting Mr Cotellessa to his home so he could explain to Mrs Ameduri what was happening.
At around 8.50 pm, 9.00 pm on 8 April 2009 Mr Cotellessa arrived at the Ameduris' house. Mr Ameduri ushered him through the garage to the breakfast bar. Mrs Ameduri made them coffee and left. He chatted with Mr Ameduri until she came back with a document consisting of more than three or four pages. Although he opened the document he did not read it. The document 'was just saying something about supplying this and that'. He said, 'no … I'm not signing any bits of paper'.
Mr Cotellessa explained to Mrs Ameduri:
… this is what we're doing. Johnny offered to pay $150,000 [for Tradesman] to carry on (trading) and he wants me to stop supplying and he's going to take some product which we were going to split over months and then Johnny's going to pay me at the end of the month by November.

When she asked when the money would be repaid, he said:
Okay, we're going to split - I've got some stock. We're gonna split it over - over months. So by November all of these, I've got 3, 400,000, by November if Johnny paid me all my bills, by November got the 150. You take it back and now let's - let's do business.
Mr Cotellessa told them he was not signing her document:
The only thing I'll sign tonight is an acknowledgement that $150,000 was given. I'll acknowledge by November have your money back and you need to acknowledge that the payments will come from Allpack being up to date with their payments.
Mr Ameduri then asked Mrs Ameduri to type something up quickly because they were going to transfer the money the next morning. Mrs Ameduri left and went to the study. She typed a document of four lines but Mr Cotellessa did not sign it that night. Someone said it was getting late. 'I'll fax it to you and you sign it and return it and then I'll transfer the money'.
When Mr Cotellessa left the house Mr Ameduri walked him to his car. He told Mr Ameduri 'all we need to do is make sure that Allpack pays its bills so I can repay Karen.' Mr Ameduri replied: 'Don't worry about payments. Leave that to me. You've got … mine and my wife's money. You'll be the first to get paid'.
The document was faxed to Mr Cotellessa's office the next day and Mr Cotellessa signed it: 'I signed it, because I agreed to it … whatever we signed that night or was written up that night or faxed it in the morning, I agreed to it, and we've signed'. The money was transferred to one of his company's accounts that morning.
Under cross‑examination Mr Cotellessa agreed he had been in business with Tradesman since 1995. He had been a director of a company for many years. In his business activities he had entered into many contracts and dealt with many transactions. Mr Ameduri approached him at his premises 14 days after he got back Tradesman and asked him to stop supplying other customers. He told Mr Ameduri 'go home and write out a cheque for $150,000 before you talk to me about stop supplying to other people'. Mr Ameduri said, 'You're not going to get it from Allpack what if me and Karen give it to you?' He disagreed the $150,000 was a loan:
It wasn't me requesting a loan, it was John offering to pay 150,000, because I told him to go home and write out a cheque for 150. I don't need a loan. I don't need a loan. I'd ask my bank, cos I had to later, for an extra 140,000, and they'll just take more of what I don't have.
He went on to say:
I didn't need a loan, no. I was just trying to make a point. Go home and pay your bills. That's what I was trying to say. I didn't expect he was going to pay money. It came in convenient because I was able to pay - you know, I didn't go and buy a new boat with that money. I didn't go and buy a new car.
The $150,000 was used for cash flow. After the meeting at the Ameduris' house he claimed that 'all I signed is an acknowledgement of $150,000 and by November [it] would have been paid back if Johnny had paid all his bills like he promised at that date'. When Mrs Ameduri said, 'how am I going to get my money back?' he said, 'you will get it back through Allpack's payments'. Mr Ameduri told Mrs Ameduri to write something, 'that's why three things came out of it; 150, November and Allpack'. It was agreed 'pay the monies at the end of the month, and I'm okay with it. On November, you'll have your money back'. When asked whether Allpack was the party who owed him money, he said:
The Traffic Group, Clean Sweep, Russell Signs, all of - all of these people owed me money. Allpack was just another guy that owed me money in the group. So I take Con Scrinis, John Ameduri, Allpack, Clean Sweep, all of these people owed me money. I can only talk to Johnny because he's the one that's sitting there and say, 'I'll pay this guy, I'll pay that guy, I'll order this, I'll order that'. That's my only reference.
… So Johnny owed me money.
When asked about Mrs Ameduri's role he said:
Mrs Ameduri was - was the - she's probably got nothing to do with it, but she was there at the meeting. It was her that had the authority. It was her that wouldn't give Con the money. It was Johnny that suggested it. Mrs Ameduri was just ended up at the meeting because Mrs Ameduri signs the check, or maybe. She was there so I had to. That's right. I didn't talk just to John. Mrs Ameduri was there, so I had to call it like I saw it.
When he left the meeting that night the terms of the Loan Agreement were agreed along with, 'I'm going to take the stock. I'll give you the purchase orders, and I'll come in next week. … So this is what we actually signed, one two, three. 150,000, November, and Allpack'.

Mrs Ameduri

Mrs Ameduri was a director of a company with her husband. She did the bookkeeping for the business.
Mrs Ameduri became aware a few days prior to the meeting on 8 April 2009 that Mr Cotellessa was coming to her home to borrow $150,000 for his business.
Mr Cotellessa arrived at about 8.30 pm. There was chitchat and coffee. Mr Cotellessa explained he would like to borrow $150,000 to put into his business to buy containers. Mrs Ameduri commented 'it was a lot of money'. Although Mr Cotellessa wanted to borrow the money until September, Mr Ameduri said he could have it until 30 November 2009. When she asked, 'What are we going to get out of it?' Mr Cotellessa said he would give them a percentage of the containers but he could not say how much. When she asked Mr Cotellessa how he was going to repay the loan, Mr Cotellessa said as he received payments from Allpack he would make part payments. She insisted Mr Cotellessa had to sign something written before she would lend the money. The agreement was to be between herself, her husband and Mr Cotellessa. It was late and she was tired. She said she would prepare something the next day.
The next morning Mrs Ameduri sat down and drafted the document on her computer. She telephoned Mr Cotellessa and read the draft to him. Mr Cotellessa did not like the reference in the draft to the Ameduris receiving a percentage of the containers so she deleted that from the document. She then printed the loan agreement from the computer and faxed it to Mr Cotellessa for his signature. After Mr Cotellessa signed the Loan Agreement and faxed it back to her for signature by her and her husband, she transferred the money.
Between April and November 2009 she did not receive any part repayments of the loan.
Mrs Ameduri's evidence was similar to Mr Cotellessa's evidence about what happened when the $150,000 fell due for repayment.
On 30 November 2009 Mrs Ameduri telephoned Mr Cotellessa and asked him for the money, but he said he would call her back. When Mr Cotellessa called her back they had a heated exchange. Mr Cotellessa then sent her an e-mail apologising and explaining he could not pay the money until Allpack caught up on its account with Tradesman.
When Mr Cotellessa telephoned Mrs Ameduri on 3 December 2009 Mrs Ameduri again asked for the money. Mr Cotellessa asked if she had spoken to her husband. She said, 'You came to my house and borrowed my money'. Mr Cotellessa told her he could not repay her because Allpack owed him money. The conversation became heated and she said she would issue a summons.
Mrs Ameduri and Mr Ameduri instructed their solicitors to send Mr Cotellessa the letter of demand dated 10 December 2009 requesting repayment of $150,000 by 15 December 2009. By emails dated 15 December 2009 and 5 March 2010 to her and Mr Ameduri, Mr Cotellessa put forward two proposals to repay the $150,000. The proposals were not accepted by her and Mr Ameduri.
Mrs Ameduri gave her evidence in chief late on a Friday afternoon. She appeared nervous and hesitant which I considered was explicable on the basis of the stress of the week in court and the lateness of the hour when giving her evidence in chief.
Under cross-examination Mrs Ameduri said she handled the money for her and her husband. Mr Cotellessa was not a stranger. Mr Cotellessa asked her to delete the reference in the draft document to the Ameduris receiving a percentage of the containers because he did not know the percentage.

Mr Ameduri

Mr Ameduri was a director of several companies. He described himself as a salesman.
Mr Ameduri became involved in The Traffic Group after the period of his non-competing arrangement with his former employer Traffic Technologies had expired. He was not involved in the setting up of Allpack because that occurred during the non-competing period. After October 2008 when the non‑competing period had expired he was involved with Allpack but he did not do much of the day to day running of its operations. His role at Allpack was to report to Mr Scrinis about Allpack's activities. He visited Allpack's premises in Victoria Road, Malaga from time to time. He would spend most of his time at the business premises of another company where he was the director.
Mr Ameduri's description of his relationship with Mr Cotellessa was similar to the evidence given by Mr Cotellessa. He talked with Mr Cotellessa about Tradesman joining The Traffic Group but he was not involved in the negotiations between the companies. He subsequently helped Mr Cotellessa get back Tradesman from The Traffic Group because of their relationship. He was not involved with negotiations concerning the Restricted Supply Agreement, although he was aware of the restricted supply arrangement between Tradesman and The Traffic Group. The first time he saw the Restricted Supply Agreement document was prior to the trial.
Around 6 April 2009 Mr Ameduri was at Mr Cotellessa's premises having a coffee and playing darts. Mr Cotellessa said, 'John I was wondering if you can help me out?' Mr Cotellessa went on to ask if he could borrow $150,000 to buy some containers. He said: 'Mate for me to give you $150,000, mate, I've got to go home and tell my missus …' During their discussions his wife rang a few times and he left.
Mr Ameduri subsequently discussed Mr Cotellessa's request with his wife. She was not enthusiastic. When Mr Cotellessa telephoned him to find out what was happening he telephoned his wife and he told her that Mr Cotellessa was coming to their home.
At about 8.30 pm on 8 April 2009 Mr Cotellessa turned up at their house for a meeting. Mrs Ameduri made them coffee.
Mr Ameduri said: 'Karen, Serge has come over to talk to you about something … he wants to borrow 150,000.' Mrs Ameduri asked, 'What do you want to borrow 150, 000 for?' He said, 'I think he wants to buy containers, love. I'm trying to help Serge out.' Mr Cotellessa explained, 'I need to buy 150,000, just buy some more containers'. Mrs Ameduri asked, 'well what's in it for me?' Mr Cotellessa replied: 'Look, I make a lot of money out of these containers, and at the end … I'll give you some profit out of the containers.' Mrs Ameduri asked: 'How are you going to pay this money back?' Mr Cotellessa replied, 'As Allpack pay me part payments or whatever they pay me, I'll pay you'. They then discussed how long Mr Cotellessa needed the money and he suggested repayment by 30 November 2009. When Mr Cotellessa asked when he could have the money Mrs Ameduri said she would do it in the morning. He showed Mr Cotellessa to the door and Mr Cotellessa left.
On the morning of 9 April 2009 Mrs Ameduri typed the Loan Agreement. Mr Ameduri and Mrs Ameduri signed the document after Mr Cotellessa signed it.
On 30 November 2009 Mr Ameduri was present when his wife telephoned Mr Cotellessa demanding the repayment of money. He and his wife subsequently instructed their solicitors to write the letter of demand to Mr Cotellessa.
Mr Ameduri claimed that between 30 November 2009 and the commencement of the proceedings, Mr Cotellessa had never asserted, orally or in writing that he did not have to repay the loan unless he was fully paid out by Allpack.
In December 2009 when Mr Cotellessa told Mr Ameduri he was desperate for money Mr Ameduri arranged for Allpack to pay him $35,358. When he saw Mr Cotellessa a few days later he said: 'Serge, I gave you $35,000 to help you. I got my - kicked by Con Scrinis for giving you that cheque. The least thing you can do is give Karen some money of the 150'. Mr Cotellessa replied: 'I'd rather give it to the lawyers to buy a swimming pool than to give it to her. Women belong barefoot and pregnant in the kitchen, mate.' I note that response was not put to Mr Cotellessa in cross-examination for his comment and I have attached no weight to it.
Under cross-examination Mr Ameduri agreed he had told Mr Cotellessa to stop supplying a particular company but that was not said by him a few days prior to the April 2009 meeting. He frequently said, 'Serge, you need to stop supplying other people because Con knows about it'. He regarded Mr Cotellessa as a good mate. Mr Cotellessa had complained to him a few times about not being paid on time by Allpack. He agreed he had told Mr Cotellessa he would go home and discuss the $150,000 with his wife but '… I didn't say get it over the line. I said I'd go home and talk to Karen to see if we can talk about it …' He denied there was a discussion at the meeting on 8 April 2009 about Allpack owing Tradesman a lot of money:
No, no, no. I will not agree to that. I would not agree with that, to come into my house and start talking about something that Karen has nothing to do with, with my family. No. Business is not done in home like that way.
If Mr Cotellessa had mentioned problems with Allpack owing him money Mrs Ameduri would not have agreed to the loan and she would have shown him the door. He agreed there was no interest payable by Mr Cotellessa on the loan. The agreement was that he and Mrs Ameduri would get a share of the profit from the sale of the containers. Mrs Ameduri wanted the loan in writing.

Relevant legal principles

For the purpose of deciding what construction a contract bears, the common intention that the court seeks to ascertain is what was sometimes called the 'objective intention' of the parties. That is the intention that a reasonable person, with the knowledge of the words and actions of the parties communicated to each other, and the knowledge that the parties had of the surrounding circumstances, would conclude that the parties had, concerning the subject matter of the contract: City & Suburban Group Pty Ltd v Gambetta Holdings Pty Ltd[2011] WASCA 233 [46].
Where the parties have recorded terms of their contract in a document, the parol evidence rule excludes evidence of extrinsic terms that subtract from, add to, vary or contradict the language of the document: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337, 347. The background or extrinsic material could only be examined once some textual ambiguity in the contract was revealed. In refusing special leave to appeal in the High Court, Gummow, Heydon and Bell JJ said in Western Export Services Inc v Jireh International Pty Ltd[2011] HCA 45 [2] – [3]:
The applicant in this Court refers to [a NSW Court of Appeal and a Victorian Court of Appeal decision] as authority rejecting the requirement that it is essential to identify ambiguity in the language of the contract before the court may have regard to the surrounding circumstances and object of the transaction. The applicant also refers to statements in England said to be to the same effect …
Acceptance of the applicant's submission, clearly would require reconsideration by this Court of what was said in Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352 by Mason J, with the concurrence of Stephen J and Wilson J, to be the ‘true rule' as to the admission of evidence of surrounding circumstances. Until this Court embarks upon that exercise and disapproves or revises what was said in Codelfa, intermediate appellate courts are bound to follow that precedent. The same is true of primary judges, notwithstanding what may appear to have been said by intermediate appellate courts.

Findings

With respect to this issue I preferred the evidence of Mr Ameduri and Mrs Ameduri to the evidence of Mr Cotellessa for the reasons as follows:
1.On the face of the document the language and terms of the Loan Agreement indicated it was an agreement to lend a sum of money between the parties as persons in their private capacity and not in their corporate roles.
2.If the Loan Agreement was a business arrangement between Mr Ameduri on behalf of Allpack and Mr Cotellessa on behalf of Tradesman I would have expected to see some reference to that in the document. I would not have expected Mrs Ameduri to be a party to the Loan Agreement as she had nothing to do with the business arrangements of Tradesman or Allpack. I do not accept Tradesman's submission that Mrs Ameduri had a significant interest in Allpack because of her and Mr Ameduri's positions with Milthorpe Nominees Pty Ltd which was the trustee of their family discretionary trust. Milthorpe Nominees Pty Ltd held 466 shares of 1000 shares in Traffic Investor Group Pty Ltd which was a 100% shareholder of The Traffic Group Pty Ltd which was a 100% shareholder of Allpack.
3.The simple language and clear terms of the Loan Agreement reflected the way the parties gave their evidence and as such the language and terms of the document would have been understood by them.
4.The terms and conditions of the Continuing Supply Agreement, as outlined in the Amended Statement of Claim, were too complicated for Mr Cotellessa to have expressed or explained in that way.
5.There was no reason for Mrs Ameduri to have advanced any money if she understood Allpack owed Tradesman a substantial amount of money for outstanding invoices at the time and repayment of the $150,000 was contingent upon Allpack being up to date with payment of all outstanding invoices to Tradesman.
6.If repayment of the loan was contingent upon Allpack being up to date with payment of all outstanding invoices to Tradesman I would have expected Mr Cotellessa to have insisted upon a condition along those lines.
7.I do not accept Tradesman's submission 'there was simply no commercial reason why Mr Cotellessa would have taken a $150,000 loan from Mr and Mrs Ameduri unless repayment was conditional upon payment of invoices rendered by Tradesman to Allpack. Only a 'you scratch my back and I will scratch your back' arrangement makes sense. Although Mr Cotellessa's evidence was that he did not need the $150,000 he used it for cash flow.
8.No textual ambiguity was revealed in the Loan Agreement so as to allow any parol evidence to be adduced which could supplement or replace the terms of the Loan Agreement. No terms could be asserted which were inconsistent with the Loan Agreement.
9.The language and terms of the Loan Agreement supported the evidence of Mr Ameduri and Mrs Ameduri.
In the circumstances I am not satisfied that Tradesman had established that the obligation of Mr Cotellessa to pay Mr Ameduri and Mrs Ameduri $150,000 pursuant to the Loan Agreement was conditional upon payment to Tradesman of outstanding invoices rendered to Allpack for traffic products supplied by Tradesman to Allpack.

What documentation including Tradesman's MYOB print outs, accounting documents relating to Allpack, reports to creditors and ASIC from the liquidators of Allpack and documents from the liquidators' office, relating to the affairs of Allpack, which had not been lodged with ASIC was admissible in evidence?

Tradesman sought to tender various documents as exhibits pursuant to s 1305 of the Corporations Act2001 (Cth) (Corporations Act) through Mr Cotellessa, Tradesman's bookkeeper and accountant Mr Mark Andrew Carter, and Allpack's liquidator Mr Darren Gordon Weaver.

The documents included Tradesman's MYOB print outs of invoices, customer ledger and sales details for traffic products; accounting documents relating to Allpack; reports to creditors and ASIC from the liquidators of Allpack and documents from the liquidators' office relating to the affairs of Allpack which had not been lodged with ASIC.
Counsel for Mr Ameduri objected to the tender of the documents on various grounds such as MYOB was merely a receptacle of data entries and the persons who input that data must be called; not enough ground work had been laid by Tradesman to rely upon s 79C of the Evidence Act1906 (WA) (Evidence Act); no evidence had been adduced as to who prepared the documents using what source data; information contained in formal documents produced by the liquidators of Allpack could not be taken at face value; and that evidence must be adduced from the persons who supplied the data to liquidators and the persons within the liquidators' office who assisted the liquidators in distilling conclusions from that data.
Tradesman submitted that on the basis of Australian Securities & Investments Commission v Rich (2005) 191 FLR 385, s 1305 of the Corporations Act permitted the tender of the following categories of documents in the following manner: Tradesman's MYOB print outs of invoices, customer ledger and sales details for traffic products merely by Mr Cotellessa identifying the document as being a document of Tradesman or by reaching such a conclusion from the face of the document; accounting documents relating to Allpack merely by evidence as to the provenance of the document or by reaching a conclusion as to the provenance of the document from the face of the document; reports to creditors and ASIC from the liquidators of Allpack merely by evidence as to the provenance of the document or by reaching a conclusion as to the provenance of the document from the face of the document; and documents from the liquidators' office, relating to the affairs of Allpack, which had not been lodged with ASIC, upon adducing a modicum of provenance evidence.
Section 1305 of the Corporations Act simplified the process of tendering documents to which s 1305 related, compared to s 79C of the Evidence Act: ASIC v Rich [225].
Section 1305 of the Corporations Act provided:
(1)A book kept by a body corporate under a requirement of this Act is admissible in evidence in any proceeding and is prima facie evidence of any matter stated or recorded in the book.
(2)A document purporting to be a book kept by a body corporate is, unless the contrary is proved, taken to be a book kept as mentioned in subsection (1).
Section 1305 of the Corporations Act was supplemented by s 1306(5) and (6) of the Corporations Act which provided that if a book required by the Corporations Act to be kept or prepared was kept or prepared by recording or storing matters by means of a mechanical, electronic or other device, a written reproduction of the matter so recorded or stored was prima facie evidence of that matter: ASIC v Rich [224] and [227].
In ASIC v Rich Austin J held at [227] and [228]:
Where it applies, s 1305 allows a document properly tendered to become prima facie evidence of any matter stated in it, regardless of whether the stated matter offends an exclusionary rule of the Evidence Act 1995, such as the hearsay rule or the opinion rule. Subsection (2), where applicable, avoids the need to prove the authenticity of the document, unless the presumption is rebutted. Where information is recorded on a computer hard-drive, s 1306(5) permits the tender of a printout of the recorded information. Thus s 1305, if applicable, gives ASIC a 'fast track' to admissibility of its tendered documents.'
Further, s 1305(2) 'allow[ed] authenticity to be established by an abbreviated means which relies upon the appearance of the document in question'.
Section 1305 of the Corporations Act applied to a document that constituted a 'book' of a company; was 'kept by a body corporate'; and was so kept 'under a requirement of' that Act: ASIC v Rich [233].
The terms 'body corporate', 'book' and 'financial records' as defined in s 9 of the Corporations Act applied to s 1305 of that Act. The records of a company in liquidation included records kept by the liquidator about the company's affairs, including copies of reports to creditors: ASIC v Rich [187] and [189].
A document was 'kept' for the purposes of s 1305 of the Corporations Act if the document was retained or held - a fortiori if the document was maintained systematically and periodically: ASIC v Rich [265]. As the liquidators of Allpack were the agents of the company their records fall within s 1305 of the Act.
Section 286(1) of the Corporations Act provided that a company must keep written financial records that:
(a)correctly record and explain its transactions and financial position and performance; and
(b)would enable true and fair financial statements to be prepared and audited.
The presumption under s 1305(2) of the Corporations Act that a document purporting to be a book kept by a body corporate was a book 'kept' under a requirement of the Act arises if there was something on the face of the document to show that it purports to be kept by a body corporate – eg, a label bearing the name of the company: ASIC v Rich [316].
I am satisfied by the evidence of Mr Cotellessa and Mr Carter that Tradesman was entitled to tender through Mr Cotellessa Tradesman's MYOB print outs of invoices, customer ledger and sales details for traffic products because Mr Cotellessa was a person who participated in the conduct of Tradesman's business; and he either found the documents among Tradesman's business records or he could recognise the document as one of Tradesman's business records. I am also satisfied that Tradesman was entitled to tender through Mr Weaver the accounting documents relating to Allpack by virtue of a perusal of the documents themselves. I am satisfied that Tradesman was entitled to tender through Mr Weaver the formal documents, being reports to creditors and ASIC, produced by the liquidators of Allpack by virtue of a perusal of the documents themselves. I am satisfied upon the evidence of Mr Weaver concerning the source of the documents that Tradesman was entitled to tender through Mr Weaver documents relating to the affairs of Allpack, emanating from the liquidators' office, which had not been lodged with ASIC.
In my view all of the documents referred to fell within s 1305(1) of the Corporations Act. Further, Mr Ameduri had not rebutted the presumption under s 1305(2) of the Corporations Act.

Did Mr Ameduri make the alleged representations?

Did Mr Cotellessa rely upon Mr Ameduri's alleged representations?

5. Did Mr Ameduri, by his alleged representations, engage in conduct, in trade or commerce that was misleading or deceptive or likely to mislead or deceive or unconscionable?

Amended Statement of Claim

At the end of the trial Tradesman abandoned some of the claims in the Amended Statement of Claim. The parties agreed the issues on the pleadings with respect to the alleged representations by Mr Ameduri to Tradesman (by Mr Cotellessa) had narrowed to the following claims by Tradesman:
(a)On or about 20 or 21 May 2009 Mr Ameduri represented to Mr Cotellessa that if Allpack did not pay Tradesman outstanding invoices for traffic products supplied by Tradesman to Allpack after the Continuing Supply Agreement was entered into then Mr Ameduri would make that payment. The representation was a representation with respect to a 'future matter' within the meaning of s 51A of the Trade Practices Act 1974 (Cth) (Trade Practices Act). Section 51A(2) and s 51AC(12) of the Trade Practices Act applied to the representation. In reliance upon the representation Tradesman continued to supply traffic products on credit to Allpack during and after May 2009 and until about December 2009. In reliance upon the representation Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack during the period from on or about 20 or 21 May 2009 and until about January/ February 2010.
(b)During July 2009 Mr Ameduri represented to Mr Cotellessa that if Allpack did not pay Tradesman outstanding invoices for traffic products supplied by Tradesman to Allpack after the Continuing Supply Agreement was entered into then Mr Ameduri would make that payment. The representation was a representation with respect to a 'future matter' within the meaning of s 51A of the Trade Practices Act. Section 51A(2) and s 51AC(12) of the Trade Practices Act applied to the representation. In reliance upon the representation Tradesman continued to supply traffic products on credit to Allpack during and after July 2009 and until about December 2009. In reliance upon the representation Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack during the period from July 2009 and until about January/February 2010.
(c)During September 2009 Mr Ameduri represented to Mr Cotellessa that Allpack would soon have the financial capacity to pay Tradesman the outstanding invoices for traffic products supplied by Tradesman to Allpack after the Continuing Supply Agreement was entered into. The representation was a representation with respect to a 'future matter' within the meaning of s 9 of the Fair Trading Act1987 (WA) (Fair Trading Act). Section 9(2) of the Fair Trading Act applied to the representation. In reliance upon the representation Tradesman continued to supply traffic products on credit to Allpack during and after September 2009 and until about December 2009. In reliance upon the representation Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack during the period from September 2009 and until about January/ February 2010.
(d)If Allpack was unable to pay the invoices rendered by Tradesman to Allpack for supplies of traffic products made by Tradesman to Allpack during and after on or about 20 or 21 May 2009 and which remained unpaid, then Tradesman would suffer detriment to the extent of such unpaid invoices.
(e)Further and in the alternative to par (d) above, if Allpack was unable to pay the invoices rendered by Tradesman to Allpack for supplies of traffic products made by Tradesman to Allpack during and after July 2009 and which remained unpaid, then Tradesman would suffer detriment to the extent of such unpaid invoices.
(f)By reason of par (c) above, Mr Ameduri engaged in conduct, in trade or commerce, that was misleading or deceptive or likely to mislead or deceive contrary to s 10 of the Fair Trading Act.
(g)By reason of pars (a), (b), (d) and (e) above, Mr Ameduri engaged in conduct, in trade or commerce, in connection with the supply or possible supply of goods to a corporation (other than a listed public company) that was, in all the circumstances, unconscionable contrary to s 51AC(2)(a) of the Trade Practices Act.
(h)By reason of the breach of s 10 of the Fair Trading Act Tradesman had suffered loss and damage.
(i)By reason of the breach of s 51AC(2)(a) of the Trade Practices Act Tradesman had suffered loss and damage.
Counsel for Tradesman conceded s 51AA of the Trade Practices Act was irrelevant. In his written closing submissions counsel for Tradesman sought leave to further amend the Amended Statement of Claim so as to bring the company's claim under s 51AC(2) of the Trade Practices Act and not s 51AC(2)(a) of that Act. I will say something about that in a moment.

The evidence

Mr Cotellessa

In late 2008 Tradesman had a substantial amount of stock in its warehouse in Malaga when Mr Cotellessa and Mr Scrinis were negotiating the return of Tradesman to Mr Cotellessa and the Restricted Supply Agreement.
On 16 January 2009 when Mr Cotellessa signed the Restricted Supply Agreement he forwarded to Mr Scrinis a list of Tradesman's current stock items. Under the terms of the Restricted Supply Agreement The Traffic Group was required to advise Tradesman what stock it could take immediately. He rejected The Traffic Group's initial offer for the stock and the stock remained in the warehouse. After that Tradesman kept supplying The Traffic Group as it placed orders for traffic products.
During Mr Cotellessa's discussions with Mr Ameduri in April 2009 concerning the loan for $150,000 Mr Ameduri said The Traffic Group/Allpack would take the stock in Tradesman's warehouse if the payment invoices were split over a period of months. Mr Cotellessa agreed to supply the stock to The Traffic Group /Allpack on the basis of split purchase orders. As a result of the Restricted Supply Agreement Mr Cotellessa's only client was The Traffic Group /Allpack and he had stopped supplying stock to others. I will say more about that in a moment.
From then onwards when a purchase order came in from The Traffic Group for stock, Tradesman was told to split the purchase order according to the month requested by The Traffic Group for payment. The stock left Tradesman's warehouse by truck for delivery to The Traffic Group according to the purchase order. Tradesman then invoiced The Traffic Group for payment for the supply of stock according to the split purchase order.
Mr Cotellessa explained how Tradesman entered the purchase order and supply invoice in MYOB:
We enter it according - as I said, June, July, August, September. Even if they're in the MYOB and recorded that day, on the invoices you won't see that I've sold you that item - part of that item till the following month. It says - if there was 100 items you bought, five invoices, 20 you'll see this month, 20 you'll see the next month. So there's - one purchase order may cover five invoices.
The Traffic Group/Allpack began taking delivery of Tradesman stock a week or so after he had obtained the loan for $150,000 in April 2009. By the end of May 2009 most of the stock in Tradesman's warehouse had been cleared out as a result of split purchase orders from The Traffic Group/Allpack. The stock had been placed on a number of 8‑tonne trucks for delivery to The Traffic Group/Allpack.
However, it was around mid-May that Mr Cotellessa became concerned about The Traffic Group's/Allpack's ability to the pay the split invoices as they fell due.
Mr Cotellessa testified about the events of May, July, September and November 2009.

May 2009

On an occasion in mid-May 2009 Mr Cotellessa had gone to Allpack's premises to discuss a $90,000 to $100,000 purchase order with Mr David Robert Court who was involved in stock purchases for Allpack. The order concerned an expensive yellow sheet product used to make signs. Mr Ameduri walked in during his meeting with Mr Court. When Mr Cotellessa queried how Allpack was going to pay for the order, Mr Ameduri said, 'Don't worry about it. If they don't pay, I'll pay it. Get the stuff happening. We need it.'
Although that particular purchase order did not proceed, Mr Cotellessa continued to supply products and render invoices as Tradesman received other orders from Allpack.
Mr Cotellessa described Allpack's payment of the invoices:
In May I believe they - we were quite current in May, and I was just rendering the invoices on my statement. Whatever was ordered would come up in the next month. So we were just supplying and placing orders normally. I'd get an order, I'd fill it, and I'll deliver it. And at May it was okay. June, I believe, was close. Wasn't unbearable. It was more September/October when it really started to get too much.

July 2009

Mr Cotellessa had many conversations with Mr Ameduri about the outstanding payment of Tradesman's invoices by Allpack: 'What if Allpack can't pay? If Allpack can't, I will. What if the bill's 100,000? If we miss - if it's 100 and it's - they only pay you 70, I'll pay you the balance. You won't miss out'.
He went on to say that it was his understanding that Mr Ameduri would pay every month whatever Allpack was short but 'he couldn't do that because Karen won't give him any more money'.

September 2009

On an occasion in September 2009 Mr Cotellessa had a conversation with Mr Ameduri about the outstanding invoices during which Mr Ameduri mentioned The Traffic Group was going to raise $5 million with a prospectus and he should 'Just hang in there. We're all going to get paid …'
Mr Cotellessa had faith in Mr Ameduri and he continued to supply traffic products to Allpack and render invoices.
Mr Cotellessa was aware that Mr Scrinis would not pay the outstanding invoices. It was a lot easier for him to speak with Mr Ameduri.

November 2009

Around mid to late November 2009 Mr Cotellessa asked Mr Ameduri for Allpack to make some payment on the outstanding invoices: 'I asked John if he could please pay some money as I won't be able to meet my commitments, this and that, and he said we've got no money to pay right now … We're not paying anyone right now. We - we're just waiting for the prospectus and I get calls every day for money and - and - so - - ‑ we just can't pay anybody.' He went on to say 'Well, I know John wasn't going to pay'. He was asking Mr Ameduri to 'Get Allpack - get Allpack to pay me some money.' Although Mr Ameduri had promised to pay the shortfall 'I know that he can't … The minute he failed to meet the difference between the rendered invoice and the short – "I'll pay you the short"- - - Back in July, August, whenever it was short. When they sent me the first payment and it was short - - - The balance didn't come.' He knew from then onwards Mr Ameduri would not pay personally and 'I wasn't going to get out of John. I have to help him trade into this and then we'll raise a prospectus and I'll get paid'.
As Mr Cotellessa was about to leave Mr Ameduri told him he had to repay Mrs Ameduri some money. He said, 'You're joking, right? John, you owe me a lot of money. And the deal is you're going to make sure that I get paid, even if it comes out of your pocket. Now you're asking me for this money. I can't. Even if I wanted to, I can't'.
When Mr Ameduri said Mrs Ameduri would issue a summons, he replied, 'I'll send you and I'll send Allpack a summons'.
Mr Ameduri then said, 'I wouldn't do that. You don't know Con. He loves litigation. He'll argue the invoices, he'll argue the deliveries, he'll argue … Just trust me. Don't go down that track. The prospectus is nearly here. Let's wait for the prospectus … Deeper pockets always wins. You just don't want to go down that track. Just wait till - till we raise the prospectus and you'll get - and you'll get your - you'll get paid. Everybody will get paid'.
During the meeting Mr Ameduri had to deal with other creditors.
Under cross-examination Mr Cotellessa accepted what was said by Mr Ameduri during his discussion with Mr Court about the yellow sheet product related to that specific order. On occasions Mr Ameduri said he would personally make up the shortfall difference at the end of each month. Mr Cotellessa went on to say that every day Mr Ameduri said: '$100,000 if it's short, they can only pay 70, I'll pay the 30, just get it.' When asked whether he was suing Mr Ameduri because he knew he could not recover from Allpack he responded: 'I answer it this way; hadn't I got the money, whether they went into liquidation or not, Mr Ameduri would have been chased by me for my accounts on the promises that we made in the past, regardless.'

Mr Palthorpe

Mr Darren Palthorpe conducted a powder coating business which did work for Allpack. He had a few conversations with Mr Ameduri concerning payment.
On one occasion Mr Ameduri said: 'Yeah, don't worry about it, it'll get paid no matter what. No matter what, you'll … get paid, don't … worry about it. Leave it for now. It will be paid by the end of the week.' On another occasion Mr Ameduri said, 'You know, no matter what, he'll pay me, even if he pays me himself'.

Under cross-examination Mr Palthorpe said Mr Ameduri told him he was the director of Allpack and the finance behind the company. Mr Ameduri also told him he was the boss which he understood meant the director.

Mr Court

Mr Court said Mr Ameduri was his boss at Allpack. Although he was involved in purchasing stock, all purchases had to be approved by Mr Ameduri.
On the occasion in May 2009 when Mr Court was ordering the yellow sheeting product, Mr Cotellessa raised concerns that he was not getting paid on time and he queried the payment for the order. At the time Mr Ameduri said, 'Don't worry about the bill, just get the stock in. If Allpack doesn't look after you, I'll look after you.'
Mr Court often heard Mr Ameduri on the telephone saying to suppliers, 'Look, send the goods out. If Allpack's all right, if Allpack doesn't pay, I will pay.'
Under cross-examination Mr Court asked for and received a s 11 certificate under the Evidence Act. Mr Court stated he had lied about Mr Ameduri's involvement with Allpack in an affidavit which was to be used in earlier Federal Court proceedings. He was told to lie in the affidavit by Mr Ameduri. He lied to protect Mr Ameduri because Mr Ameduri was his bread and butter. He agreed that after he left Allpack he had to pay $35,000 when sued on two guarantees he had signed as an Allpack director.
Under cross-examination Mr Court agreed he was the manager in charge of operations at Allpack's business premises. He consulted his diary and his meeting with Mr Cotellessa was on 20 May. The yellow sheeting order stood out because of its size. Mr Ameduri assured Mr Cotellessa that if Allpack would not pay that he (Mr Ameduri) would pay. On occasions, when he was in the adjoining office at Allpack's premises, he heard Mr Ameduri talking on the telephone to suppliers. Mr Ameduri would swear on his children that he would pay their bills. On other occasions, when he was having a cigarette in the car park of Allpack's premises and Mr Ameduri was present, he heard Mr Ameduri on the telephone to suppliers discussing payment.

Mr Amos

Mr Mark William Amos worked for Allpack for about 12 months in internal sales. At the time Mr Ameduri was the manager. When he left Allpack he worked for himself as a sole trader.
Mr Amos' company did some work for Allpack. Mr Amos had two big contracts in September/October 2009. When he discussed payment with Mr Ameduri, Mr Ameduri said, 'Well, look, mate, I - you know, I swear on my kids. I'll - I'll look after you, buddy. You know, it's all good. We'll make sure you get your money'.
On a number of occasions at Allpack's premises Mr Ameduri told Mr Amos that he would look after him: 'No matter what happens, I'll always look after you, buddy'; 'No matter what happens, like, I'll always look after you. Make sure - like, you're not going to go without. Like, I've - I've given you'; 'Look, look, mate, that's fine. I'll look after you, mate. That's all good. You'll never go without. If times get tough, you know, I'll reach into my pocket and I'll help you out, buddy. It's fine'.
On another occasion in January 2010 at Allpack's premises when Mr Amos complained about payment Mr Ameduri said: 'Look, you know, do you believe - do you trust me that I'm going to pay you? … If you can't trust me, then I don't want you to be a subby - subby for me'.
Under cross-examination Mr Amos asked for and received a s 11 certificate under the Evidence Act. Mr Amos also stated he had lied in an affidavit about Mr Ameduri's involvement with Allpack which was to be used in earlier Federal Court proceedings. He was told to lie in the affidavit by Mr Ameduri.
Under cross-examination Mr Amos said Mr Ameduri had told him when discussed outstanding payments 'he'd look after me and make sure I'd - you know, I'd always do the job and I'd get paid'. Mr Ameduri was speaking for himself not the company. Mr Ameduri would 'swear on his children I'd always get paid'. Mr Ameduri would say 'I will pay you myself and I'll make sure you're all right'. Mr Ameduri said that on a number of occasions.
Mr Amos went on to say under cross-examination he discussed his evidence with Mr Cotellessa and Mr Court. Allpack owed him $33,000 which was the beginning of events that led to his bankruptcy. After he left Allpack and whilst he was bankrupt he was sued for $20,000 on a guarantee he had signed as an Allpack director. On an occasion in 2010 when he was chasing money from Allpack he punched a hole in Mr Ameduri's office door. He accepted he was angry with Mr Ameduri.

Mr Scrinis

Mr Scrinis testified that in none of his conversations or emails with Mr Cotellessa did Mr Cotellessa refer to any agreement with Mr Ameduri concerning payments by Allpack.
Mr Scrinis explained how the split invoices that Allpack received from Tradesman came about:
… in June we had identified - I'd identified stock that Tradesman wanted to - for us to move quickly.
…That we - I got that list and agreed that that list was acceptable for us to - to go and sell. Tradesman chose to pre-invoice all of that stock in June and post-date the invoices. We didn't discuss that, but they did that. We received those invoices and decided we'd use those invoices as a - as our reference point, and we - we loaded them up onto this spreadsheet. So if you like, at the start - in June we hadn't received any stock, but we received $500,000 worth of invoices. We've identified the invoices, and then the clock started from then on as we used that stock. So we would go out there and sell the stock to our various customers, and we would draw down from that stock as required, and we would record it on a - on a month by month basis against each line item to - to record exactly how many units we sold and how much - what cost of that - that unit was. And then we just used the sum total for that particular month, and we recorded that against our purchases in our creditors ledger owed to Tradesman.

Mr Ameduri

Mr Ameduri testified he was not involved in the operational side of Allpack's business. He had no role in invoicing. He did not place any orders. He was not authorising purchase orders for products. The only time he would order something was when Mr Cotellessa was in his office but then Mr Court would handle the order. His role in dealing with Allpack's creditors was limited. He would be given a list of creditors and he would tell the accounts staff to pay one or two of them.
Mr Ameduri never represented to Mr Cotellessa that if Allpack did not pay Tradesman's invoices then he would pay them personally. He disputed the evidence of Mr Palthorpe, Mr Court and Mr Amos that he had agreed to pay creditors if Allpack did not pay their invoices. He told Mr Cotellessa that Mr Scrinis had said 'all the people [to whom money was owed] when we raise the capital, when Allpack raise the capital or he raises his capital or when he does his float, then everyone should be paid'.
Under cross-examination Mr Ameduri stated Mr Palthorpe, Mr Court and Mr Amos had conspired to concoct a story against him. He denied he was involved in setting up Allpack.
Mr Ameduri recalled the May 2009 meeting when Mr Court was discussing an order for yellow sheeting. Mr Cotellessa made no mention of being worried about payment. He denied Mr Court's evidence that he authorised purchases. He agreed he had probably used the expression 'swear on my children' but not in connection with personally paying a creditor's bill.
Mr Ameduri disputed Mr Cotellessa's evidence about other occasions when he allegedly agreed to be personally liable for Allpack's payments. He agreed that in September 2009 he told Mr Cotellessa that Mr Scrinis had said 'When the prospective [sic] comes out, we raise the capital … Serge will get paid.' He stated that in December 2009 Mr Cotellessa came to his office asking for money and he told him to issue a summons to Mr Scrinis and Allpack.
Mr Ameduri accepted his signature was on some of the delivery documents for stock that left Tradesman's warehouse in May 2009 and which was the subject of split orders. However, he did not know about the split orders:
These split orders, I don't know anything much about these split orders. It was mentioned what he wants to do, what he doesn't want to do. He sorted it out with Con, James Brian and - maybe, and I don't even know this - maybe David Court. I don't know that one either.
Although he knew about the bulk stock order but he did not know how it was organised:
As far as organising it. It was really done, probably, with Brian Rosenberg, Con Scrinis, James, a bit from Dave Court. I was never there, your Honour. I was hardly there, one or two hours. I didn't even go to - to that place for one or two weeks at a time.

Relevant legal principles

In cases based entirely upon spoken words, the substance of the conversations must be proved to the reasonable satisfaction of the court. The court 'must feel an actual persuasion of its occurrence or existence'. The level of satisfaction takes into account 'the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding': Helton v Allen (1940) 63 CLR 691, 712.
In cases where a party alleges misleading and deceptive conduct by another within the meaning of the Trade Practices Act or the Fair Trading Act, 'it is ordinarily necessary for that party to prove to the reasonable satisfaction of the court: (1) what the alleged conduct was; and (2) circumstances which rendered the conduct misleading. Where the conduct is the speaking of words in the course of a conversation, it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition. Furthermore, human memory of what was said in the conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, construed. All this is a matter of ordinary human experience': Watson v Foxman (1995) 49 NSWLR 315 at 318 – 319.
Allegations of misleading and deceptive conduct are serious allegations. The allegations are effectively allegations of deceit. In relation to such allegations, it is necessary that the alleged representations are clear and unambiguous: Bell Group Ltd (in liq) v Westpac (2008) 39 WAR 1 [3470].
For the court to make findings of unconscionable conduct by a party towards another, the court must conclude that the party unfairly or unconscientiously took advantage of a position of special disadvantage in which the other party was placed: Commercial Bank of Australia Ltd v Amadio (1982-1983) 151 CLR 422, 462.
Section 10(1) of the Fair Trading Act provided that a person shall not, in trade or commerce, engage in conduct that was misleading or deceptive or was likely to mislead or deceive.
Section 9 of the Fair Trading Act provided:
(1)For the purposes of this Part, where a person makes a representation with respect to any future matter (including the doing of, or the effusing to do, any act) and the person does not have reasonable grounds for making the representation, the representation shall be taken to be misleading.
(2)The onus of establishing that a person had reasonable grounds for making a representation referred to in subsection (1)is on the person.
The word 'person' was not defined in the Fair Trading Act. The definition of 'person' in s 5 of the Interpretation Act 1984 (WA) applied to the Fair Trading Act.
Section 79(1) of the Fair Trading Act provided that a person who suffered loss or damage by conduct of another person that was done in contravention of a provision of Part II of the Act may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
Section 51AC(2)(a) of the Trade Practices Act provided that a person must not, in trade or commerce, in connection with the supply or possible supply of goods or services to a corporation (other than a listed public company) engage in conduct that was, in all the circumstances, unconscionable.
Section 51AC(2)(b) of the Trade Practices Act provided that a person must not, in trade or commerce, in connection with the acquisition or possible acquisition of goods or services from a corporation (other than a listed public company) engage in conduct that was, in all the circumstances, unconscionable.
Section 51AC(4) of the Trade Practices Act sets out a list of factors to which the court may have regard without in any way limiting the operation of s 51AC(2) of that Act.
Section 51AC(7) of the Trade Practices Act provided that a reference in s 51AC of that Act to the supply or possible supply of goods or services was a reference to the supply or possible supply of goods or services to a person whose acquisition or possible acquisition of goods or services was or would be for the purpose of trade or commerce (emphasis added).
Section 51AC(8) of the Trade Practices Act provided that a reference in s 51AC of that Act to the supply or possible supply of goods or services was a reference to the supply or possible supply of goods or services by a person whose acquisition or possible acquisition of goods or services was or would be for the purpose of trade or commerce (emphasis added).
Section 82(1) of the Trade Practices Act provided that a person who suffered loss or damage by conduct of another person that was done in contravention of s 51AC of that Act may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.
In Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10 [362] Murphy JA said:
For there to be a contravention of s 51AC (of the Trade Practices Act (1974) (Cth)), the alleged unconscionable conduct must occur 'in connection with', the supply or possible supply 'of goods or services': s 51AC (1). The words 'in connection with' require the impugned conduct to go with, accompany, or be involved in the supply of goods or services: Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants (Aust) [2001] FCA 1056; (2001) ATPR (Digest) 46-212 [260].
Counsel for Tradesman accepted in his written submissions that Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2001] FCA 1056 was authority which suggested that s 51AC of the Trade Practices Act only operated as between a 'supplier' (in this case Tradesman) and a ' business consumer' (in this case Allpack).
In Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [252] – [255] Lindgren J held that, despite the width of the words 'in connection with', s 51AC(3) of the Trade Practices Act contemplated that the only parties to be considered for the purposes of s 51AC of that Act were a 'supplier' and a 'business consumer'.
Counsel for Tradesman also accepted in his written submissions that I should take the same approach in the context of s 51AC(2) and s 51AC(3) of that Act, as Lindgren J's conclusion on that aspect of the case was upheld by the Full Federal Court on appeal: Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia [2002] FCAFC 197; (2002) 122 FCR 110.
In the appeal decision of Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia Herrey J (with whom Black CJ at [2] and Tamberlin J at [162] agreed on this point) said at [114] – [116]:
As a matter of language s 51AC(1) is directed not to conduct in trade or commerce generally, but rather to conduct in trade or commerce in connection with a particular kind of transaction, namely the supply or acquisition of goods or services to or from a person (other than a listed public company). This may be contrasted with s 52(1) which simply provides that a corporation shall not in trade or commerce engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
That s 51AC(1) is concerned only with conduct in relation to dealings between the corporation in question and a particular kind of person (a person other than a listed public company) is confirmed by s 51AC(3) and (4). In each case some 12 factors which may be taken into account are stipulated. It is true that they are non-exclusive but they are all concerned with dealings between 'supplier' and 'business consumer' (subs (3)) or between 'acquirer' and 'small business supplier' (subs (4)). They contemplate that the Court is engaged in the task of determining whether there has been a contravention of s 51AC(1), and thus are confined to a particular kind of transaction, namely the supply or acquisition of goods or services as between stipulated categories of person.
The conclusion that s 51AC is not concerned with the impact of conduct on third parties is confirmed by the legislative history: see Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (No 2) (2000) 96 FCR 491 at 494 ‑ 496. In the present case his Honour (at 52,362-52,363 [255] - [259]) recounts in detail the legislative history. It is not necessary to repeat that history in these reasons. In my view it shows convincingly that the present s 51AC can be traced back to the original recommendation of the Swanson Committee in 1976 that unconscionable conduct be prohibited 'to give the Act a greater ability to deal with the general disparity between buyers and sellers'.
Counsel for Tradesman contended Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia was wrongly decided but gave no reasons.

Findings

With respect to these issues I preferred the evidence of Mr Cotellessa, which was supported by other evidence, to the evidence of Mr Ameduri. Mr Ameduri's evidence was supported by Mr Scrinis only to the extent that in none of his conversations or emails with Mr Cotellessa did Mr Cotellessa refer to any agreement with Mr Ameduri concerning payments by Allpack. On the other hand, Mr Cotellessa's evidence was supported by the evidence of Mr Court, Mr Amos and Mr Palethorpe who impressed as young men who had learnt the hard way from their experiences in the commercial world and they were doing their best to assist the court with their evidence about those events. I formed the view that Mr Court and Mr Amos, who frankly admitted lying about their involvement with Mr Ameduri and Allpack in their affidavits in the earlier Federal Court proceedings, were being truthful in their testimony before me and they genuinely regretted what they had done. I reject Mr Ameduri's evidence that Mr Court, Mr Amos and Mr Palethorpe had conspired against him.
With respect to these issues I made the findings as follows:
1.On or about 20 or 21 May 2009 Mr Ameduri stated to Mr Cotellessa words to the effect that he would pay for the yellow sheet order if Allpack did not pay for it.
2.The evidence of Mr Court corroborated Mr Cotellessa's evidence concerning the yellow sheet order on or about 20 or 21 May 2009. The evidence of Mr Court, Mr Amos and Mr Palethorpe that Mr Ameduri had agreed to pay creditors if Allpack did not pay their invoices supported Mr Cotellessa's evidence that Mr Ameduri stated he would pay for the order if Allpack did not pay.
3.Mr Cotellessa's evidence in chief and under cross-examination was that that representation by Mr Ameduri concerned that specific order. An order which did not proceed.
4.I accept the submission by counsel for Tradesman that the representation 'had the requisite degree of certainty'. However, I do not accept his submission that 'Mr Cotellessa gave clear evidence as to Mr Ameduri making the 1^st Personal Liability Representation substantially in the terms pleaded in the ASOC par 32 and the particulars thereto'.
5.Mr Cotellessa gave no evidence that on or about 20 or 21 May 2009 Mr Ameduri stated words to the effect that if Allpack did not pay Tradesman the outstanding invoices for traffic products supplied by Tradesman to Allpack (after the Continuing Supply Agreement was entered into) then Mr Ameduri would make that payment. Further, that could not be implied from Mr Ameduri's representation that he would pay for the specific yellow sheet order if it was not paid for by Allpack.
6.As s 1AC(2) of the Trade Practices Act only operated as between a 'supplier' (in this case Tradesman) and a 'business consumer' (in this case Allpack), in the circumstances Tradesman had not established that on or about 20 or 21 May 2009 by the representation that he would pay for the yellow sheet order if Allpack did not pay for it, Mr Ameduri engaged in conduct, in trade or commerce, in connection with the supply or possible supply of goods to a corporation that was, in all the circumstances, unconscionable contrary to s 51AC(2) of that Act: Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia.
7.Alternatively to par 6 above, in the circumstances I am not satisfied that Tradesman had established that on or about 20 or 21 May 2009 by the representation that he would pay for the yellow sheet order if Allpack did not pay for it, Mr Ameduri engaged in conduct, in trade or commerce, in connection with the supply or possible supply of goods to a corporation that was, in all the circumstances, unconscionable contrary to s 51AC(2) of the Trade Practices Act.
8.On an occasion in 2009 Mr Ameduri stated to Mr Cotellessa words to the effect that if Allpack was unable to pay the invoice Mr Ameduri would pay every month whatever Allpack was short.
9.The evidence of Mr Court, Mr Amos and Mr Palethorpe that Mr Ameduri had agreed to pay creditors if Allpack did not pay their invoices also supported Mr Cotellessa's evidence that Mr Ameduri stated on an occasion that if Allpack was unable to pay the invoice Mr Ameduri would pay every month whatever Allpack was short.
10.Mr Cotellessa's evidence about when that was stated by Mr Ameduri was vague. His evidence that Mr Ameduri first started saying that when they signed the Loan Agreement, there were a lot of conversations at different times and 'every month we discussed something' was confusing.
11.I do not accept the submission by counsel for Tradesman that 'Mr Cotellessa gave clear evidence as to Mr Ameduri making the 2^nd Personal Liability Representation substantially in the terms pleaded in the ASOC par 40 and the particulars thereto'. Nor do I accept his submission that the representation 'had the requisite degree of certainty'.
12.There was no evidence that during July 2009, as claimed by Tradesman, Mr Ameduri said words to the effect that if Allpack did not pay Tradesman the outstanding invoices for traffic products supplied by Tradesman to Allpack (after the Continuing Supply Agreement was entered into) then Mr Ameduri would make that payment.
13.As s 51AC(2) of the Trade Practices Act only operated as between a 'supplier' (in this case Tradesman) and a 'business consumer' (in this case Allpack), in the circumstances Tradesman had not established that during July 2009 by the representation that if Allpack did not pay Tradesman the outstanding invoices for traffic products supplied by Tradesman to Allpack then he would make that payment, Mr Ameduri engaged in conduct, in trade or commerce, in connection with the supply or possible supply of goods to a corporation that was, in all the circumstances, unconscionable contrary to s 51AC(2) of that Act: Monroe Topple & Associates Pty Ltd v Institute of Chartered Accountants in Australia.
14.Alternatively to par 13 above, in the circumstances I am not satisfied that Tradesman had established that during July 2009 Mr Ameduri made a representation by which he engaged in conduct, in trade or commerce, in connection with the supply or possible supply of goods to a corporation that was, in all the circumstances, unconscionable contrary to s 51AC(2) of the Trade Practices Act.
15.In September 2009 Mr Ameduri stated to Mr Cotellessa words to the effect that Mr Scrinis had said Allpack was doing a prospectus to raise capital and Mr Cotellessa would get paid.
16.Mr Ameduri accepted that in September 2009 he told Mr Cotellessa that Mr Scrinis had said Allpack was doing a prospectus to raise capital and Mr Cotellessa would get paid.
17.I am not satisfied that Tradesman had established that in reliance upon that representation in pars 15 and 16 above that Tradesman continued to supply traffic products on credit to Allpack during and after September 2009 and until about December 2009. Further, I am also not satisfied that Tradesman had established that in reliance upon that representation in pars 15 and 16 above Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack during the period from September 2009 and until about January/ February 2010.
18.It was Mr Cotellessa's evidence that by September/October 2009 Allpack's failure to pay the outstanding invoices was 'unbearable'; he knew that Mr Ameduri's representation that he would personally meet Allpack's monthly shortfall in the payment of rendered invoices was false because 'he couldn't do that because Karen won't give him any more money'; 'I know that he can't … The minute he failed to meet the difference between the rendered invoice and the short'; and he was aware that Mr Scrinis would not pay the outstanding invoices.
19.In the circumstances I found it difficult to accept Mr Cotellessa's explanation that because of his faith in Mr Ameduri, Tradesman continued to supply traffic products on credit to Allpack during and after September 2009 and until early December 2009 when he insisted upon cash payments by Allpack.
20.Tradesman's orange lever arch file of unpaid invoices for Allpack (WA) indicated that apart from the earlier 'split order invoices' Tradesman invoiced Allpack for the supply of traffic product approximately $18,851 during September 2009; $18,762 during October 2009; $5,182 during November 2009; and $4,677 in early December 2009.
21.I am satisfied that Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack during the period from September 2009 and until about January/ February 2010 because Tradesman may have considered it was obligated to do so for a period of 12 months under the terms of the Restricted Supply Agreement.
22.I am not satisfied that Tradesman had established that in September 2009 by the representation that Mr Scrinis had said Allpack was doing a prospectus to raise capital and Mr Cotellessa would get paid Mr Ameduri engaged in conduct, in trade or commerce, that was misleading or deceptive or likely to mislead or deceive contrary to s 10 of the Fair Trading Act.

I dismiss Tradesman's claim against Mr Ameduri. In the circumstances, it is unnecessary for me to deal with the other matters in issue.