Tradesman Technologies Pty Ltd v Ameduri [No 2] - [2013] WASCA 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: TRADESMAN TECHNOLOGIES PTY LTD -v- AMEDURI [No 2] [2013] WASCA 252

CORAM: MARTIN CJ
PULLIN JA
MURPHY JA

HEARD: 5 AUGUST 2013

DELIVERED : 29 OCTOBER 2013

FILE NO/S: CACV 64 of 2012

BETWEEN: TRADESMAN TECHNOLOGIES PTY LTD
Appellant
AND
JOHN AMEDURI
Respondent

FILE NO/S :CACV 65 of 2012

BETWEEN :SERGIO COTELLESSA
Appellant
AND
JOHN AMEDURI
First Respondent
KAREN AMEDURI
Second Respondent

ON APPEAL FROM:
For File No              :  CACV 64 of 2012
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
Citation  :TRADESMAN TECHNOLOGIES PTY LTD -v- AMEDURI [No 2] [2012] WADC 85
File No  :CIV 294 of 2011
For File No              :  CACV 65 of 2012
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
Citation  :AMEDURI -v- COTELLESSA [2012] WADC 86
File No  :CIV 3751 of 2009

Catchwords:

Appeal - Contract - Whether loan agreement conditional - Turns on own facts

Appeal - Form of grounds of appeal pursuant to Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)

Appeal - Principles governing an appeal challenging a finding of fact following the resolution of disputed testimony

Appeal - Whether misrepresentations made - Whether misrepresentations relied upon - Whether loss suffered - Turns on own facts

Legislation:

Fair Trading Act 1987 (WA), s 10, s 77, s 79
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4)
Trade Practices Act 1974 (Cth), s 52, s 82, s 87

Result:

Appeals dismissed

Category: A

Representation:

CACV 64 of 2012

Counsel:

Appellant: Mr P J Hannan
Respondent: Mr N D C Dillon

Solicitors:

Appellant: De Vita & Dixon Lawyers
Respondent: Andrew Foster (Barrister & Solicitor)

CACV 65 of 2012

Counsel:

Appellant:     Mr P J Hannan
First Respondent           :     Mr N D C Dillon
Second Respondent      :     Mr N D C Dillon

Solicitors:

Appellant:     De Vita & Dixon Lawyers
First Respondent           :     Andrew Foster (Barrister & Solicitor)
Second Respondent      :     Andrew Foster (Barrister & Solicitor)

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

Ameduri v Cotellessa [2012] WADC 86
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1
Cush v Dylan [2011] HCA 30; (2011) 243 CLR 298
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588
Tradesman Technologies Pty Ltd v Ameduri [No 2] [2012] WADC 85
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

REASONS OF THE COURT: This is an appeal against two judgments of a District Court judge in two actions which were tried at the one hearing. One judgment was entered in favour of Mr and Mrs Ameduri (the Ameduris) against Mr Cotellessa for $150,000 plus interest. In the other, claims by Mr Cotellessa's company, Tradesman Technologies Pty Ltd (Tradesman), against Mr Ameduri based on alleged misrepresentations were dismissed.
The respondents, the Ameduris, sued Mr Cotellessa for $150,000 which they advanced to Mr Cotellessa in April 2009 and which they contended was repayable by 30 November 2009. Mr Cotellessa's defence was that there was a more complex agreement than the simple loan agreement sued upon by the Ameduris. The trial judge found that the debt was repayable on 30 November 2009. The background to the two actions is as follows.
The representations relied upon in the action by Tradesman against Mr Ameduri are set out later in these reasons.

Background

Tradesman was a company controlled by Mr Cotellessa who was the sole director. In 2006, Tradesman supplied traffic products, such as cones and bollards, to another company called Sunny Signs. Sunny Signs was a company controlled by the Ameduris. Mr Ameduri had started this company up in the early 2000s and built it up to be a successful traffic signage company.
It is then necessary to mention a company called Traffic Technologies Ltd. This was a public company based in Victoria. Mr Con Scrinis was an officer of that company. He was also based in Victoria. Mr Scrinis negotiated with Mr Ameduri and as a result, Traffic Technologies Ltd bought the Sunny Signs business. Mr Ameduri stayed on as an employee of Sunny Signs and signed a non‑compete contract with Traffic Technologies Ltd.
In about August 2007, Mr Scrinis fell out with the board at Traffic Technologies Ltd and left the company (ts 827). Soon after, he incorporated a new company called The Traffic Group Pty Ltd and re‑entered the business of traffic signage supply.
All of the shares in The Traffic Group Pty Ltd were held by a company called Traffic Investor Group Pty Ltd. The majority of the shares in Traffic Investor Group Pty Ltd were held by Mr Scrinis, and he was the sole director of The Traffic Group Pty Ltd. The balance of the shares in Traffic Investor Group Pty Ltd were held by Milthorpe Nominees Pty Ltd, which was the trustee of the Ameduris' discretionary family trust, and two others (ts 806 ‑ 808).
In due course, The Traffic Group Pty Ltd bought several businesses, including the business or shares in a company known as Allpack Signs in Adelaide. In July 2008, The Traffic Group Pty Ltd changed its name to Allpack Signs Pty Ltd and henceforth in these reasons The Traffic Group Pty Ltd will be referred to as 'Allpack'. Mr Ameduri was never a director of Allpack, but he did become involved in its management as explained below.
In February 2008, Mr Scrinis and Mr Ameduri jointly acquired a street sweeping business called Clean Sweep. Mr Ameduri spent time running the Clean Sweep business in the period where his non‑compete clause required him to keep away from the business of Allpack. In fact, there was litigation brought by Traffic Technologies Ltd against Mr Ameduri alleging that he had breached his non‑compete agreement, but this litigation was settled. Once that happened, Mr Ameduri attended more frequently than before at Allpack's business premises. This was to give guidance and oversee Mr Court who was the manager of the section of the Allpack business dealing in traffic signage. In due course, Mr Ameduri was appointed as the manager of the Allpack business in Western Australia. Mrs Ameduri was not a participant in the daily affairs or work of the Allpack business.
In June or July 2008 (ts 712), Mr Scrinis began planning a public float of Allpack. After Mr Cotellessa heard about this from Mr Ameduri in 2008, he spoke to Mr Scrinis about selling Tradesman to Allpack. This resulted in Allpack purchasing the shares in Tradesman and Tradesman becoming a subsidiary of Allpack.
After about three months, Mr Cotellessa decided he did not want Tradesman to be part of Allpack, and he asked Mr Scrinis to undo the transaction. Mr Scrinis agreed to do so, but required Tradesman to enter into an agreement to exclusively supply its products to Allpack. This was to prevent Tradesman supplying Allpack's competitors. A Restricted Supply Agreement was executed in January 2009 by Tradesman and Allpack. At the time, Mr Scrinis considered that Tradesman had too much stock on hand, and he included a clause which allowed him, but did not immediately commit him, to purchase the excess product that Tradesman had on hand.
Tradesman delivered a substantial part of the excess product to Allpack under a 'split invoice' arrangement whereby the product was delivered immediately and invoices followed over an extended period of time. By April 2009, Tradesman claimed Allpack owed it over $120,000. The amount owing was in dispute. Also by April 2009, Mr Ameduri had come to believe that Tradesman was selling product to competitors of Allpack, contrary to the Restrictive Supply Agreement. Mr Ameduri had not then seen that agreement, but he did understand that it restricted Tradesman's ability to supply other customers (ts 1057).

The evidence concerning the advance of $150,000

A day or so before 8 April 2009, Mr Ameduri called on Mr Cotellessa at Mr Cotellessa's Tradesman premises. It was a friendly meeting. They played darts and Mr Cotellessa claimed that during that meeting, Mr Ameduri said that he had heard that Mr Cotellessa was arranging for Tradesman to supply competitors with product and that he should stop doing so. Mr Cotellessa, in effect, complained about not being paid by Allpack. Mr Ameduri denied that such a conversation happened at that time (ts 1056 ‑ 1057). The trial judge preferred the evidence of Mr Ameduri [78].
The parties agreed, however, that there was a discussion about Mr Ameduri lending Mr Cotellessa $150,000. When this subject was broached, Mr Ameduri said that if he was to lend any money to Mr Cotellessa, he would have to speak to his wife about it. Mr Ameduri and Mr Cotellessa arranged a meeting at the Ameduris' home so Mrs Ameduri could be involved.
On the evening of 8 April 2009, Mr Cotellessa went to the Ameduris' home and met with the Ameduris. There was no dispute that at that meeting the Ameduris agreed to lend Mr Cotellessa $150,000, subject to Mr Cotellessa signing a document. There is also no dispute that the next day, the Ameduris and Mr Cotellessa signed a document dated 9 April 2009 which read:
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.
Once Mrs Ameduri had in hand the document signed by Mr Cotellessa, Mrs Ameduri paid the sum of $150,000 into the account Mr Cotellessa nominated. Precisely what was said at the 8 April 2009 meeting was the subject of dispute.
Mr Cotellessa pleaded that at the meeting on 8 April 2009 an oral agreement was made between Mr Cotellessa on his own behalf and on behalf of Tradesman, Mr Ameduri on his own behalf and on behalf of Allpack, and Mrs Ameduri. The agreement was described by Mr Cotellessa in his pleadings as the 'Continuing Supply Agreement'. Mr Cotellessa pleaded in his defence in the action that the Ameduris brought against him, that the terms of the Continuing Supply Agreement were:
1.Subject to the term in sub-paragraph (3) below, Mrs Ameduri promised to advance $150,000 to [Tradesman].
2.Subject to the terms in sub-paragraphs (4) and (5) below, 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 pleaded in sub‑paragraph (1) above 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 pleaded in sub‑paragraph (5) below, Mr Cotellessa was obliged to pay Mrs Ameduri the advance pleaded in sub‑paragraph (1) above by 30 November 2009.
5.The obligation pleaded in sub‑paragraph (4) above 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 (being the date the Continuing Supply Agreement was entered into).
6.Subject to [Allpack] complying with the term pleaded in sub‑paragraph (7) below, [Tradesman] promised to continue supplying [Allpack] with Traffic Products in accordance with the Restricted Supply Agreement.
7.The obligation pleaded in sub‑paragraph (6) above 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 (being the date the Continuing Supply Agreement was entered into).
8.In the event that [Allpack] did not comply with the conditions pleaded in sub‑paragraph (5) above, then Mr Cotellessa was not obliged to pay Mrs Ameduri the advance pleaded in sub‑paragraph (1) above unless and until:
(a)all of the invoices pleaded in sub‑paragraph (5)(a) above were paid in full; and
(b)all of the invoices pleaded in sub‑paragraph (5)(b) above 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.
The Ameduris denied this agreement. The crux of the dispute was Mr Cotellessa's claim that the agreement reached was that repayment of the $150,000 was conditional on Allpack paying all outstanding invoices rendered by Tradesman prior to 8 April 2009 by 30 November 2009, and paying all invoices rendered by Tradesman from April to November 2009 within 30 days. The Ameduris denied that any such conditions were agreed.
Mr Cotellessa's evidence in chief was that the agreement obliging him to repay the loan conditional on Allpack paying Tradesman, was reached at the meeting at the Ameduris' home on 8 April 2009. Mr Cotellessa's evidence in chief about this was that it was to be reduced into written form. He said:
I said the only thing I'll sign tonight is an acknowledgement that $150,000 was given. I'll acknowledge by November [you will] have your money back and you need to acknowledge that the payments will come from Allpack being up to date with their payments (ts 143).
Mrs Ameduri, in her testimony, said that Mr Cotellessa wanted the $150,000 to buy 'containers' and that he wanted the money until September 2009. She testified that her husband said he could have the money until 30 November 2009 (ts 838). Mrs Ameduri testified that she asked Mr Cotellessa how he was going to pay the money back, and that Mr Cotellessa said that as he received payment from Allpack he was going to make part payments. Mrs Ameduri testified that the loan had to be repaid by 30 November 2009 (ts 841 ‑ 842).
Mr Ameduri's evidence was to similar effect. His testimony was that Mr Cotellessa said at the meeting on 8 April 2009 that as Allpack paid him monies, he would pay back some of the loan. Mr Ameduri said that his wife added that as long as it was paid back by 30 November 2009 'she was happy' (ts 921). Mr Ameduri also said that Mr Cotellessa said that he wanted the money to buy some containers (ts 918).
Both Mr and Mrs Ameduri gave evidence that Mr Cotellessa said that he would let them have some of the profit that he made from selling the containers, although a precise share of the profit was not specified.
There was a dispute on the evidence about whether a document was prepared on the evening of 8 April 2009, but it is not necessary to resolve it because no document was signed or agreed to that night. What is not in dispute is that the document dated 9 April 2009 was signed by Mr Cotellessa on 9 April 2009, and that only after it was signed by Mr Cotellessa, and then by the Ameduris, did Mrs Ameduri arrange for the $150,000 to be paid to the account nominated by Mr Cotellessa.
Even if Mr Cotellessa's evidence, that on the evening of 8 April 2009 he had wanted to include a term that made repayment on 30 November 2009 conditional upon having received payments from Allpack, was accepted as correct (and the trial judge did not accept it as correct), he gave up that demand when the terms of the document that he signed on 9 April 2009 were agreed to. When the document was signed, no such term was included in it. Similarly, according to Mr and Mrs Ameduri's evidence (whose evidence the trial judge accepted), they gave up the benefit of a proposal that they would get an unspecified share of the profit from the sale of containers. According to Mrs Ameduri's evidence, when she included such a provision in the draft of the agreement she prepared on 9 April 2009 and read it to Mr Cotellessa, he refused to agree to the inclusion of such a provision. Mrs Ameduri took the term out and the document in the form set out above was faxed off to Mr Cotellessa for him to sign (ts 840).
Between 9 April 2009 and 30 November 2009, no payments were made by Mr Cotellessa. On 30 November 2009, Mrs Ameduri demanded that Mr Cotellessa repay the $150,000. Mr Cotellessa declined to do so.
Before proceedings were commenced by the Ameduris, Mr Cotellessa never said in any written communication that the obligation to repay the $150,000 was conditional on Allpack paying Tradesman's invoices. In fact, the only time there were communications from Mr Cotellessa referring to the loan, they referred to his obligation to repay the $150,000, but not to any condition attached to that obligation (ts 63 ‑ 64, 5 August 2013).
Allpack experienced difficulties in paying all its creditors on time. The planned float of Allpack faltered and an attempt to raise the minimum investment necessary to get the company listed failed. The result was that in January 2010, Mr Scrinis began the process of selling the Allpack businesses. Allpack sold its Western Australian and South Australian business operations (ts 727). The National Australia Bank took the proceeds payable to Allpack for the sale of the businesses by virtue of the security held by the bank over the assets of Allpack. A creditor's voluntary winding up resolution was passed and, on 11 May 2010, liquidators were appointed to Allpack. Tradesman was one of the unsecured creditors.

The trial judge's reasons concerning the loan agreement

It is important when reading the trial judge's reasons concerning the loan agreement to bear in mind that there was no issue raised by Mr Cotellessa about the fact that the Ameduris had advanced $150,000 to Mr Cotellessa, and that he had signed the agreement recording an obligation to repay the money by 30 November 2009. The issue between the parties, and which had to be decided by the trial judge, was Mr Cotellessa's claim that, contrary to the clear statement in the 9 April 2009 document, he had no obligation to repay the money by 30 November 2009 unless Allpack was up to date with its payments to Tradesman.
The trial judge in his reasons in Tradesman Technologies Pty Ltd v Ameduri [No 2] [2012] WADC 85, summarised the evidence of the participants of the 8 April 2008 meeting. His Honour preferred the evidence of the Ameduris to the evidence of Mr Cotellessa and found that he was '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' [78] ‑ [79]. In Ameduri v Cotellessa [2012] WADC 86, his Honour adopted the reasons he gave in Tradesman v Ameduri [No 2] and concluded:
In the circumstances I am satisfied that Mr Ameduri and Mrs Ameduri [have] established that Mr Cotellessa was obliged under the loan agreement to pay them $150,000 on 30 November 2009 [21].
The findings in the two sets of reasons are challenged in ground 4 in CACV 65 of 2012 and ground 5 in CACV 64 of 2012.

The form of the ground of appeal

Before referring to the principles which relate to an appeal challenging a finding of fact following the resolution of disputed testimony, it is necessary to make comment about the form of ground 4 in CACV 65 of 2012. The ground reads:
The learned Judge erred in fact in failing to find, and ought to have found, that the Continuing Supply Agreement was made between Mr Cotellessa, Tradesman, Mr Ameduri, Mrs Ameduri and Allpack during a meeting … in the evening of 8 April 2009 at the home of Mr Ameduri and Mrs Ameduri …

More and more often, this court sees grounds formulated in this way. A ground formulated in this way, in these circumstances, does not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules).
The drafting of a ground of appeal requires knowledge of the law concerning, inter alia, the distinction between errors of fact and errors of law. Often, appellants appear to regard the grounds as a mere formality to be given little attention before they progress to a hearing where they hope to have the Court of Appeal conduct the rehearing to which r 25 of the Rules refers. The court does not conduct the rehearing and substitute its own conclusion for that of the trial judge, absent error being demonstrated: CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 224 ALR 1 [12].
The Rules state that the appellant's grounds of appeal 'must state the grounds and concise particulars of them succinctly in numbered paragraphs' (r 32(4)(b)), and 'must state' (emphasis added) for each ground whether it is 'an error of fact', 'an error of law' or 'an error of mixed fact and law' (r 32(4)(c)). Categorising an error as an error of fact, or an error of law, or an error of mixed fact and law, requires a proper understanding of the law which categorises errors in this way.
It is not always easy to categorise an error, but there are some basic propositions which should be well understood. So, for example, a challenge to a finding of fact might involve an error of fact, or might involve an error of law. If a finding of fact is based on no evidence, then the error will be an error of law: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 [91]. However, if the alleged error is that the finding of fact is against the weight of evidence, then the error will be an error of fact: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 155 ‑ 156. In those circumstances, in complying with practice direction 7.4, the appellant is required to set out all of the evidence which supports the finding, followed by the evidence which is said by its weight to outweigh the evidence relied upon by the trial judge to make the finding of fact.
If it is alleged that the trial judge erred in inferring a fact from other facts found or not in dispute, then the proper basis for challenge is to allege that the trial judge erred in law by drawing an inference which cannot reasonably be drawn from other facts found or not in dispute: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 367.
If, as in this case, one side refers to the evidence of a disputed conversation and contends that A was agreed, and the other contends that B was agreed, and the trial judge finds fact A was agreed, and if the appellant alleges error on the basis that the finding was against the weight of evidence, then the ground must read 'The trial judge erred in fact in finding A'. A ground drafted to read 'The trial judge erred by failing to find B' does not comply with the Rules. A ground drafted in that form requires the court to first construe the ground to ascertain what error of fact is actually alleged. All too frequently an assertion that a trial judge 'failed to find' what the appellant contends for, is nothing more than an expression of a wish that the trial judge had accepted the evidence of the appellant rather than the evidence of the other party.
Similarly, if a point of law is in issue, the Rules are not complied with by drafting a ground alleging that 'The trial judge erred in law by failing to hold' the law to be as the appellant contended for, rather than alleging error on the part of the trial judge in holding the law to be as he did.
On some occasions, likely to be rare, a trial judge might fail to deal with an essential issue. However, even there, rather than drawing a ground asserting that the trial judge 'failed to find', it would be better to assert in the ground of appeal that the trial judge erred in law by failing to address an issue which had to be addressed in order to determine the case. An example is found in Cush v Dylan [2011] HCA 30; (2011) 243 CLR 298, where the trial judge heard a defamation case. The defence pleaded qualified privilege, and the question then was whether the plaintiff could prove that the occasion was not privileged because of malice on the part of the defendant. The trial judge went straight to consider the issue of malice without first deciding whether the publication was on an occasion where qualified privilege applied. The trial judge 'failed to find' whether qualified privilege existed or not [15], but a ground of appeal alleging that the trial judge 'erred in law by failing to consider and determine an essential issue' would be more appropriate than a ground of appeal alleging that the trial judge 'failed to find' that qualified privilege existed.
Ground 4 could have been struck out on the basis that it was embarrassing, would prejudice or delay the fair hearing of the appeal and because it was not in accordance with the Rules.
When pressed to explain how ground 4 should be construed, counsel for the appellant agreed that the ground should be read as alleging that the trial judge erred in fact in finding that no 'Continuing Supply Agreement' was made, such finding being against the weight of evidence (ts 68 ‑ 69, 5 August 2013). That is how the ground will be construed.

Principles governing an appeal challenging a finding of fact following the resolution of disputed testimony

The appeal is an appeal by way of rehearing: see the Rules, r 25. As already mentioned, error by the trial judge must be demonstrated if the appeal is to succeed.
Although appeal courts are often in as good a position to decide on the proper inference to be drawn from undisputed facts or facts found by the trial judge (Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551) the situation is usually different when the decision of the trial court depends upon a resolution of a clash of critical oral testimony, oath on oath: State Rail Authority (NSW) v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 [92] (Kirby J). In those circumstances, the trial judge's view of a witness's credibility is important. In those cases it may be difficult to demonstrate error on the part of the trial judge who chooses to believe the evidence of certain witnesses in preference to contradictory evidence by others. It may be impossible to overcome the difficulty unless there are factors suggesting such error. Factors include that there were 'incontrovertible facts', or other 'uncontested testimony' (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 [28]) demonstrating the error. The finding may be 'glaringly improbable' or 'contrary to compelling inferences' in the case: Fox v Percy [29]. The mere appearance of witnesses - that is, their demeanour - as a determinant of truth is now cautioned against as a means of making findings of fact: Fox v Percy [30]. Trial judges are urged to pay more attention to the 'apparent logic' of events, the existence of 'contemporary materials', and other 'objectively established facts' (Fox v Percy [31]) as a means of reasoning to a conclusion.

Disposition

In this case, the trial judge did not simply prefer the evidence of the Ameduris on the basis of demeanour. On the contrary, the trial judge relied upon the apparent logic of events, the existence of contemporary materials and objectively established facts as a means of reasoning to his conclusion.
His Honour stated that he preferred the evidence of the Ameduris to the evidence of Mr Cotellessa concerning the loan agreement for the reasons set out in [78] of his Honour's reasons in Tradesman v Ameduri [No 2]. They read:
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.
Those reasons indicate the logic, the contemporary materials and the objectively established facts which suggested to his Honour that he should find that there was no oral agreement contradicting the written agreement which provided that the loan was repayable on 30 November 2009. That finding was open to the trial judge. Not only was the finding open to the trial judge based on the reasoning set out above, but there was more evidence the trial judge could have referred to which sustains the finding. Thus, on occasions where Mr Cotellessa had cause to refer in writing to the loan agreement, he made no reference to the alleged conditional nature of the obligation to repay. So, for example, in February 2010, Mr Cotellessa negotiated with Mr Scrinis about the sale of Allpack. Mr Cotellessa referred to the amount that he might have to borrow in order to purchase the business and on 1 February 2010, he sent an email to Mr Scrinis indicating that he would have to borrow money from his bank to pay any price that was agreed upon, and in that email he said 'I will also arrange to borrow an extra $150,000 to pay John and Karen on settlement' ('John and Karen' was a reference to the Ameduris).
The weight of evidence supported the trial judge's finding. No error has been demonstrated. Ground 4 should be dismissed.
The appellant agreed that if ground 4 failed, then all other grounds must fail because they were dependent upon success on ground 4 (ts 70, 5 August 2013). The appeal against the judgment in Ameduri v Cotellessa must be dismissed.

Tradesman v John Ameduri

In this action, Tradesman sued Mr Ameduri for damages under the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987 (WA) and other relief pursuant to those Acts and in equity. Tradesman alleged, inter alia, that Mr Ameduri made some representations that if Allpack did not pay Tradesman on invoices rendered by Tradesman, then Mr Ameduri would make payment, and that in reliance upon such representations Tradesman continued to supply goods, and alleged in another instance that Mr Ameduri represented that Tradesman would be paid when Allpack was listed. The claim in equity relied upon proof of the representations pleaded in support of the Trade Practices Act and Fair Trading Act causes of action.
Tradesman's claim was dismissed inter alia because the trial judge made findings that the pleaded representations were not proved, not relied upon, or caused no loss.

The pleadings in Tradesman v John Ameduri

Tradesman's statement of claim pleaded that Mr Ameduri worked for Allpack and that after 21 September 2007, Mr Ameduri was authorised by Mr Scrinis to place orders on behalf of Allpack for the purchase of traffic products from Mr Cotellessa.
The Restricted Supply Agreement was referred to. There was a plea that Allpack owed $129,354.60 to Tradesman on 8 April 2009 in respect of invoices for products supplied by Tradesman. The statement of claim pleaded that Allpack did not have the financial capacity to make an immediate payment, and in par 26 the 'Continuing Supply Agreement' was again referred to.
There followed a pleading of seven representations by Mr Ameduri which Tradesman pleaded were false and which Tradesman pleaded it relied upon and which caused loss. Each plea of a representation was followed by paragraphs pleading that Tradesman relied upon the representations and continued to supply traffic products on credit to Allpack and continued to abide by the Restricted Supply Agreement by not supplying traffic products to competitors of Allpack.
Tradesman pleaded that as at 30 November 2009, Allpack owed Tradesman just over $500,000 in outstanding invoices for supplies of traffic products made prior to 8 April 2009, and for invoices rendered during the period from April 2009 to November 2009.
The statement of claim also pleaded that on or about 4 December 2009, Tradesman received a payment of about $35,000 in respect of outstanding invoices, and that as from about 4 December 2009, Tradesman supplied traffic products to Allpack on the basis of cash on delivery.
Tradesman pleaded that by reason of the representations and the pars which followed them (pleading reliance), Mr Ameduri engaged in deceptive or misleading conduct contrary to s 10 of the Fair Trading Act and s 52 of the Trade Practices Act. Tradesman pleaded that by reason of the matters pleaded in pars 32, 34, 35, 40, 42, 43, 62 and 63 (which pleaded that if Allpack was unable to pay invoices rendered by Tradesman then Tradesman would suffer detriment), Mr Ameduri was estopped from denying that he was liable to pay the invoices rendered by Tradesman to Allpack for supplies made during and after May 2009, or alternatively during and after July 2009 which remained upaid.
The statement of claim pleaded that Allpack eventually was made the subject of a creditor's voluntary winding up, that liquidators were appointed, and that the business of Allpack was sold with the whole of the proceeds of sale going to National Australia Bank which held security over the assets of Allpack.
In the prayer for relief, Tradesman claimed an order under s 87 of the Trade Practices Act and s 77 of the Fair Trading Act that Mr Ameduri indemnify Tradesman in respect of all unpaid invoices for supplies of traffic products made during and after April 2009, and a declaration that Mr Ameduri was obliged in equity to pay Tradesman the amount of all unpaid invoices made during and after May 2009, or alternatively during and after July 2009. Damages under s 82 of the Trade Practices Act and s 79 of the Fair Trading Act were also claimed, along with interest.

The defence

By the defence, Mr Ameduri admitted that the Restricted Supply Agreement was entered into, admitted that a meeting took place on 8 April 2009 attended by the Ameduris and Mr Cotellessa, admitted that an agreement was entered into in terms which were as set out in the Ameduris' statement of claim in the earlier action, pleaded that Tradesman supplied competitors of Allpack with traffic products in breach of the Restricted Supply Agreement, denied the amounts pleaded as owing by Allpack to Tradesman, denied making the representations or entering into the Continuing Supply Agreement, and denied reliance or loss by Tradesman.

The misrepresentation claims

As already mentioned, in the statement of claim, Tradesman allege seven misrepresentations were made by Mr Ameduri. After all evidence had been led at trial, a document was filed by Tradesman entitled 'Notice of claims in amended statement of claim which are abandoned by the plaintiff' (BAB 76 ‑ 78). This revealed that four of the pleaded representations were abandoned, leaving only three. They were described by the trial judge in the following terms:
(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 Act 1987 (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 [96(a) ‑ (c)].

The 20 and 21 May 2009 representation

The evidence of Mr Cotellessa did not support the claim that the pleaded representation was made by Mr Ameduri. The evidence revealed that in May 2009, there was discussion between Mr Court, the manager of the traffic products side of the Allpack business, Mr Ameduri and Mr Cotellessa about Tradesman supplying yellow sheet product to Allpack. The order was large and involved product valued at about $90,000 to $100,000. Mr Cotellessa's evidence was that he queried how the order was to be paid for, and that Mr Ameduri said 'Don't worry about it. If they don't pay. I'll pay it. Get the stuff happening. We need it' (ts 183). Mr Ameduri denied making such a representation, but the trial judge believed Mr Cotellessa: Tradesman v Ameduri [No 2] [164]. However, the order did not proceed, so there was no reliance or loss suffered by Tradesman on the basis of the representation.
The trial judge found that the representation pleaded (that is, the representation to the effect that Mr Ameduri would pay invoices for traffic products supplied after 8 April 2009 if Allpack did not) was not supported by the evidence. Mr Cotellessa gave no evidence that on 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', then Mr Ameduri would make that payment.

The ground of appeal concerning the findings relating to 20 and 21 May 2009 representation

Ground of appeal 6 was identified by counsel as the ground asserting error by the trial judge. The ground reads:
The learned judge found that on or about 20 or 21 May 2009 Mr Ameduri stated to Mr Cotellessa that Mr Ameduri would pay Tradesman for a yellow sheet order placed by Allpack if Allpack did not pay for it. The learned judge erred in fact and/or law in holding that a representation by Mr Ameduri in terms of the [pleaded representation] was not implied in that statement.

Disposition regarding the alleged May 2009 representation

Counsel for the appellant asserted that the representation by Mr Ameduri that he would pay for a specific order if Allpack did not, implied (or the court should infer) a representation that Mr Ameduri would pay for all orders not paid for by Allpack. That is to assert an error of law not an error of fact. If the trial judge's conclusion drew the wrong inferences from facts which had been found, then he erred in law.
The statement made by Mr Ameduri is no longer in dispute. A finding was made and it is not challenged on appeal. The appellant's assertion about what should be inferred is unsustainable. It is clear that the representation was made in relation to the specific order relating to the yellow sheet, and it was made in relation to that order because it was a big order and Mr Cotellessa was concerned about not getting paid for it. It is not possible to infer from a representation that Mr Ameduri would pay for one order if Allpack did not pay, that he would pay all invoices not paid by Allpack.
Even if the representation actually made had been pleaded it would not have sustained a claim for damages. The order for the yellow sheet did not proceed. Tradesman did not supply the yellow sheet. The representation made concerning the yellow sheet caused no loss because Allpack came under no obligation to pay for the yellow sheet and therefore never failed to pay for it. Therefore, ground 6 of Tradesman's appeal must be dismissed.

The July 2009 representation

His Honour observed that the evidence of Mr Court, a Mr Amos and a Mr Palthorpe was that Mr Ameduri said in their presence that he would pay creditors if Allpack did not pay their invoices, but they did not give evidence supporting the pleaded representation allegedly made by Mr Ameduri to Mr Cotellessa. The Trial judge said:
Mr Cotellessa's evidence about when [words to the effect that if Allpack was unable to pay the invoice Mr Ameduri would pay every month whatever Allpack was short] was stated by Mr Ameduri was vague. His evidence [was that] … there were a lot of conversations at different times and 'every month we discussed something' [165(10)].
The trial judge found that 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 amount due on outstanding invoices for traffic products then Mr Ameduri would make that payment [165(12)].

The ground of appeal concerning the July 2009 representation

Counsel for the appellant identified ground 7 as the ground of appeal relating to the findings of the trial judge in relation to the July 2009 representation. It reads:
The learned judge erred in fact by concluding that the evidence did not establish that Mr Ameduri made a representation to Tradesman substantially in the terms of the [July] representation. The learned judge should have held that the evidence established that Mr Ameduri had made such a representation, either expressly or by implication from circumstances.

Disposition regarding the alleged July 2009 representation

As mentioned, Mr Cotellessa gave no evidence to support the pleaded representations. Paragraph 40 of the statement of claim contained particulars about the July 2009 representation. The particulars asserted that Mr Cotellessa said to Mr Ameduri words to the effect:
John, some of [Allpack's] monthly bills will be over $100,000. What will happen if [Allpack] cannot pay at the end of the month?
The particulars asserted that Mr Ameduri replied with words to the effect:
Do not worry. Whatever [Allpack] does not pay I will pay myself. Say [Allpack] only pays $70,000 and the bill is $100,000 then I will pay the balance of $30,000, so you do not miss out.
No evidence was given by Mr Cotellessa that Mr Ameduri used such words, and there was no other evidence suggesting that any such conversation occurred or the representation pleaded was made by Mr Ameduri. The high point of the evidence, according to Tradesman's oral and written submissions, was that the representation was proved by the fact that Mr Cotellessa gave evidence that 'every month we discussed something' (see ts 87, 5 August 2013). The reference to that evidence does not sustain the alleged representation, and certainly does not demonstrate error on the part of the trial judge in making the finding that he did. Ground 7 must be dismissed.

The September 2009 representation

The trial judge found at [165(15) and (16)] that in September 2009, Mr Ameduri represented to Mr Cotellessa that Mr Scrinis had said that Allpack was doing a prospectus to raise capital and Mr Cotellessa would get paid.
Tradesman pleaded (pars 50 and 51 of the amended statement of claim) that 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, and that in reliance also 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 until about January/February 2010.
The trial judge found (at [165(17)]) that he was not satisfied that Tradesman had established that 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.
His Honour also found (at [165(17)]) that he was not satisfied that Tradesman had established that in reliance on the representation, Tradesman continued to abide by the Restricted Supply Agreement by not contracting to supply traffic products to competitors of Allpack. This was because (the trial judge said) Tradesman may have considered it was obligated to do so for a period of 12 months under the terms of the Restricted Supply Agreement: Tradesman v Ameduri [No 2] [165(21)].

The ground of appeal concerning the September 2009 representation

Counsel for the appellant identified grounds 14 and 15 as the relevant grounds. Ground 14 read:
The learned judge erred in fact and law in finding that Tradesman (by Mr Cotellessa) had not relied on the [September] representation.
Ground 15 read:
The learned judge erred in law by failing to find that Mr Ameduri had engaged in conduct that was 'misleading or deceptive or likely to mislead or deceive' within the meaning of section 10 of the Fair Trading Act1987 (WA) despite:
(1)his Honour finding that Mr Ameduri had made the [September representation];
(2)Tradesman having specifically relied on section 9 of the Fair Trading Act1987 (WA); and
(3)Mr Ameduri having adduced no evidence to discharge the burden on him to prove that he had reasonable grounds to make the [September representation].
If ground 14 fails, then it is not necessary to deal with ground 15.

Disposition regarding the alleged September 2009 representation

The appellant contended that because the representation was about payment in the future, the onus was on Mr Ameduri to establish that he had reasonable grounds for making the representation. That is correct (see s 9 of the Fair Trading Act). The expectation of Mr Ameduri, Mr Cotellessa and Mr Scrinis was that the Tradesman group would be listed as a public company. The representation was described as the 'financial capacity representation' by the appellant, and clearly if the company had been listed, it would have had the financial capacity to make payment to all creditors rather than to leave some creditors languishing (Tradesman being one of them). Mr Scrinis gave evidence in which he confirmed that the float of Allpack was planned. Mr Ameduri knew this so he had reasonable grounds for making the representation. Ground 14 has no merit. It must be dismissed.

Quantum

The conclusions above mean that Tradesman's appeal must be dismissed, but something needs to be said provisionally about the appellant's claim for damages. In its written submissions provided prior to the appeal hearing, the appellant submitted that if the May or July 2009 representations were made, were false and were relied upon, the damages which should be awarded would be $561,065.99 plus interest, because 'the earliest unpaid invoice comprising' that amount 'is dated 1 August 2009' and the total of all unpaid invoices after that date was that amount.
If the representations had been made, had been proved to be false and had been proved to have been relied upon by Tradesman (none of which findings was made), then the loss suffered would have been the value of goods supplied by Tradesman in reliance on the representations. Merely looking at the total of unpaid invoices rendered after the representation dates did not supply the answer to the question as to the appropriate quantum of loss. If, in relation to the May 2009 representation, goods were supplied, then it was necessary to determine what goods were supplied in reliance on the representation. Likewise for the alleged July 2009 representation and the September 2009 representation.
Directions were given at the conclusion of the hearing for the appellant to file a schedule referring to the evidence which showed what goods were supplied after and in reliance on each of the representations. The respondent was given leave to file submissions referring to the quantum. The appellant's schedule reveals that the total value of orders said to be supplied in reliance upon the May representation was $239,635.17, the total value of the orders said to be supplied in reliance upon the July representation was $103,054.60 and the total value of the orders said to be supplied in reliance upon the September representation was $61,280.89. The amount of $239,635.17 relating to the May representation included the amounts submitted in relation to both the July and September representations. Likewise, the amount of $103,054.60 submitted in relation to the July representation included the amount submitted in relation to the September representation. In other words, for each supply of goods said to be provided in reliance upon the September representation, the appellant also submits that these same goods were provided in reliance upon the July representation or, failing that, in reliance upon the May representation. Similarly, for each supply of goods said to be provided in reliance upon the July representation, the appellant also submits that these same goods were provided in reliance upon the May representation.
The respondent, in its submissions in reply to the appellant's schedule, conceded that the dates and details of the invoices listed by the appellant in its submissions were correct. However, the respondent noted that the issue of whether the appellant could in fact rely upon these invoices had been disputed at trial. At trial, the respondent argued that it was not proven that the traffic products the subject of the invoices had been supplied or delivered, nor was it proven that the appellant could legitimately charge the prices listed in the invoice pursuant to the Restricted Supply Agreement. The trial judge made no findings on either of these issues because he did not consider it necessary to do so in the circumstances: see Tradesman v Ameduri [166].
This court cannot make a finding as to quantum in circumstances where the trial judge did not decide disputed facts relevant to the issue of quantum. If it became necessary to do so, the matter would have to be remitted to the trial judge for the determination of the outstanding issues going to quantum.

Conclusion

Both appeals should be dismissed.