Troiano v Voci

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT
COMMERCIAL LIST

S ECI 2019 00118

RITA TROIANO (formerly RITA MOORE)	Plaintiff
v
ROSARIO (‘ROSS’) VOCI & ORS	Defendants

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JUDGE:	DELANY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 8-11, 18-19, 22-25 February, 1-4, 25 March, 17-21, 26-27 May 2021; closing submissions 25 May 2021, 11 June 2021, 29 June 2021
DATE OF RULING:	17 December 2021
CASE MAY BE CITED AS:	Troiano v Voci & Ors
MEDIUM NEUTRAL CITATION:	[2021] VSC 851

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CONTRACT – Construction of agreement – Identifying the parties to the agreement – Identifying what constitutes the agreement and its terms – Whether agreement void for uncertainty or incompleteness – Whether plaintiff entitled to rectification of the contract – Whether parties entered into a joint venture agreement – Whether the plaintiff and/or the defendant breached and/or repudiated the agreement – Simic v NSW Land & Housing Corporation (2016) 260 CLR 85, Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544, Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104, Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337, BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 applied – Gibson Motorsport Merchandise Pty Ltd v Forbes [2005] FCA 749 cited – Booker Industries Pty Ltd v Wilson Parking (QLD) Pty Ltd (1982) 149 CLR 600 applied – Thorby v Goldberg (1964) 112 CLR 597, Upper Hunter District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 applied – Jieyun International Investments Pty Ltd v Toorak Development Group Pty Ltd [2021] VSC 340 applied.

EQUITY – Fiduciary relationship – Whether fiduciary duties owed, and if so, whether breached – Fiduciary relationship not established on the facts – Whether plaintiff entitled to equitable compensation – Consideration of disentitling conduct – Equitable compensation not applicable – Chirnside v Fay (2006) 3 NZCCLR 176 applied.

ESTOPPEL – General principles – Whether representations made – Whether plaintiff or defendant estopped from pursuing specific contractual claims – Representations not established on the facts – Bannon v Nauru Phosphate Royalties Trust [2018] VSC 532, Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 cited.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J D S Barber with Mr J P Carney	De Wet Partnership Solicitors
For the Defendants	Mr M A Robins QC with Mr L J S Molesworth	KCL Law

TABLE OF CONTENTS

INTRODUCTION.............................................................................................................................. 1

THE PARTIES................................................................................................................................... 10

Ms Troiano................................................................................................................................... 10
Mr Voci......................................................................................................................................... 10
PSCA............................................................................................................................................. 10
River Hills Estate Pty Ltd........................................................................................................... 11
River Hill Estate 2 Pty Ltd......................................................................................................... 11
River Hills Estate 3 Pty Ltd, River Hills Estate 4 Pty Ltd, River Hills Estate 5 Pty Ltd, River Hills Estate 6 Pty Ltd 12
Wollert Projects Pty Ltd............................................................................................................. 13
1285 Donnybrook Road Pty Ltd................................................................................................ 13
RSS Family Pty Ltd..................................................................................................................... 14

THE WITNESSES............................................................................................................................ 14

Ms Troiano................................................................................................................................... 14
Mr Voci......................................................................................................................................... 14
Mr Cardamone............................................................................................................................ 15
Mr Williams................................................................................................................................. 15
Ms Sainato.................................................................................................................................... 15
Mr Stenning.................................................................................................................................. 15
Mr Terziovski............................................................................................................................... 16
Mr Rapita...................................................................................................................................... 16
Ms Florence.................................................................................................................................. 17
Mr Basile....................................................................................................................................... 17
Ms Wang....................................................................................................................................... 17
Mr Cheng...................................................................................................................................... 18
Ms Drakopoulos.......................................................................................................................... 18
Mr Pezzi........................................................................................................................................ 18
Ms Edhie-Wahidin...................................................................................................................... 19
Mr Noonan................................................................................................................................... 19
Mr Wise........................................................................................................................................ 20
Mr Barrow.................................................................................................................................... 20
Mr Cattapan................................................................................................................................. 20

THE ISSUES...................................................................................................................................... 21

The contract.................................................................................................................................. 21
Rectification of the contract....................................................................................................... 23
Was there a Variation Agreement / Estoppel?....................................................................... 25
Breach of contract/repudiation................................................................................................ 27
Questions concerning Bindts Road.......................................................................................... 28
Questions concerning Donnybrook.......................................................................................... 30
Other Major Projects................................................................................................................... 30
Claims for breach of fiduciary duty......................................................................................... 31
Estoppel/breach of the ACL..................................................................................................... 32
Ms Troiano’s claims relying upon the Corporations Act 2001 (Cth)..................................... 33

THE BACKGROUND FACTS....................................................................................................... 34

The parties prior to August 2014: Mr Voci and PSCA.......................................................... 34
Ms Troiano................................................................................................................................... 37

THE FACTS: 14 AUGUST 2014 – 29 OCTOBER 2014............................................................... 38

The first meeting: 14 August 2014............................................................................................ 38
The second meeting: 20 August 2014 and the ‘Initial Agreement’...................................... 41
The third meeting in August 2014............................................................................................ 49
25 August 2014: Ms Troiano starts work................................................................................. 51

THE MPD AGREEMENT............................................................................................................... 58

29 October 2014 – 5 November 2014: The first draft contract............................................... 58
6 November 2014 – the second draft contract......................................................................... 65
The third draft contract.............................................................................................................. 70
The final agreement: signed as the 14 November 2014 agreement..................................... 78

IDENTIFICATION OF THE CONTRACT, THE PARTIES AND ITS TERMS.................. 80

The Principles................................................................................................................................... 81

Construction................................................................................................................................. 81
Joint venture................................................................................................................................. 84
Incompleteness............................................................................................................................ 85
Uncertainty................................................................................................................................... 86
Rectification.................................................................................................................................. 87
Who are the parties to the contract?......................................................................................... 89
What constitutes the contract.................................................................................................... 95

Construction of the Contract.......................................................................................................... 95

Terms of the contract.................................................................................................................. 95
Remuneration.............................................................................................................................. 96
Is the final sentence of the Remuneration Section a separate joint venture agreement?.. 98
The incorporation of a new company.................................................................................... 100
What is a ‘Major Project’?......................................................................................................... 104
When does a project ‘eventuate’?........................................................................................... 106
Are there implied terms as alleged in the Defence?............................................................ 108

THE FACTS: 16 NOVEMBER 2014 - 9 SEPTEMBER 2015..................................................... 109

Work of the MPD...................................................................................................................... 109
Bindts Road................................................................................................................................ 118
Donnybrook............................................................................................................................... 138

THE VARIATION AGREEMENT - 9 SEPTEMBER 2015...................................................... 141

Email Communications............................................................................................................ 142
Evidence given by Ms Troiano and Mr Voci........................................................................ 147
Findings...................................................................................................................................... 154

THE FACTS: SEPTEMBER 2015 – SEPTEMBER 2019............................................................ 162

Estoppel principles................................................................................................................... 164
Late September 2015 – May 2016............................................................................................ 165

MAY 2016 – SEPTEMBER 2016: REPUDIATION.................................................................... 173

Repudiation: The Principles.................................................................................................... 173
May 2016 – September 2016..................................................................................................... 175
September 2016: The end of the relationship........................................................................ 187
October 2016 – September 2019............................................................................................... 189

CLAIMS FOR BREACH OF FIDUCIARY DUTY.................................................................... 196

The case advanced by Ms Troiano......................................................................................... 196
The principles............................................................................................................................ 197
Application of the principles................................................................................................... 203

FINANCIAL AND ACCOUNTING EVIDENCE.................................................................... 207

The accounts of PSCA and the Voci companies................................................................... 207

The Expert Accounting Evidence................................................................................................ 210

Ms Smith’s independence........................................................................................................ 211
Expert Land Valuation Evidence............................................................................................ 215
The Joint Accounting Report................................................................................................... 216
Agreed Matters................................................................................................................ 216
Areas of Disagreement and Questions for Determination........................................ 217

Question 1: Profit made by the River Hills entities.............................................................. 218
Questions 2, 4 & 5: Profit made by PSCA.............................................................................. 218
Background...................................................................................................................... 218
The appropriate revenue base....................................................................................... 219
Allocation of overheads based on review of wages or based on revenue.............. 220
Interest expense............................................................................................................... 222
Normalisation adjustments............................................................................................ 223
Bad debt expenses........................................................................................................... 223
Related party transactions.............................................................................................. 224
SOW Fees.......................................................................................................................... 224
Conclusion: Questions 2, 4 and 5.................................................................................. 225

Question 3: profit that would have been derived from the sale of Donnybrook............ 227

DETERMINATION OF THE ISSUES....................................................................................... 228

Contract...................................................................................................................................... 228
Who are the parties to the contract?............................................................................. 228
What constitutes the contract?....................................................................................... 228
What are the terms of the contract?.............................................................................. 228
Is the contract uncertain or an agreement to agree and therefore void?................. 229

Rectification................................................................................................................................ 229
Was there the common intention alleged?................................................................... 229
Is Ms Troiano entitled to rectification?......................................................................... 231
If Ms Troiano is otherwise entitled to rectification, is that not the case by reason of the matters relied on in the Defence? 231

Bindts Road................................................................................................................................ 232
Donnybrook............................................................................................................................... 233
Other Major Projects................................................................................................................. 234
The Variation Agreement and Related Estoppel Questions............................................... 235
Was the Variation Agreement made as alleged?........................................................ 235

Breach/Repudiation................................................................................................................. 237
Breach of contract alleged by Ms Troiano.................................................................... 237
Did Mr Voci induce breach of contract by PSCA?...................................................... 237
Breach of contract alleged by the defendants.............................................................. 237
Did PSCA and Mr Voci repudiate the MPD Agreement?......................................... 238
Did Ms Troiano repudiate the True Agreement?....................................................... 240

Fiduciary Duties........................................................................................................................ 241
Did Mr Voci and/or the Voci companies owe Ms Troiano fiduciary duties?........ 241
Did Mr Voci and/or the Voci companies or any of them, breach fiduciary duties? 241
Did Mr Voci and PSCA assist the third to eighth defendants to knowingly breach the Bindts Road Trust? 241

Is Ms Troiano entitled to succeed in her claims for breach of trust and knowing receipt concerning the Bindts Road project?      242
Is Ms Troiano entitled to succeed in her claim for breach of fiduciary duty in respect of the Donnybrook project? 242
If there has been breach of fiduciary duty, is Mrs Troiano entitled to equitable compensation or declaratory relief?           242
Is Ms Troiano entitled to a declaration that the third to ninth and the eleventh defendants hold her interest on constructive trust or are they liable to account to her?................................................................................................. 242
If breach of fiduciary duty is otherwise established, is Ms Troiano precluded or disentitled from seeking equitable relief?          242

Representations......................................................................................................................... 242
Did PSCA and Mr Voci make the representations alleged to Ms Troiano?............ 242
Ms Troiano’s misleading and deceptive conduct claim............................................ 243

Corporations Act....................................................................................................................... 244
Relief........................................................................................................................................... 244
Disposition................................................................................................................................. 244

HIS HONOUR:

INTRODUCTION

The business relationship between Rita Troiano – at that time known as Rita Moore – and Rosario (‘Ross’) Voci began with much enthusiasm over the course of a series of meetings and communications between August and November 2014. The enthusiasm with which the parties commenced their business relationship in 2014 was more than matched by the acrimony that accompanied the breakdown of that relationship in the period July to September 2016.
The business activity in which both participated involved the provision of services by the second defendant, PS Corporation (Aust) Pty Ltd (‘PSCA’), to others involved in property development, and the entry by Mr Voci into contracts for the purchase of broad-acre future subdivisional land at Bindts Road, Epping (’Bindts Road’) and 1285 Donnybrook Road, Woodstock (‘Donnybrook’), and dealings concerning both Bindts Road and Donnybrook.
Ms Troiano and Mr Voci signed an agreement titled ‘Terms and Conditions of Employment’ dated 14 November 2014 (‘the 14 November 2014 agreement’). The named parties to that agreement are Rita Moore and PSCA.
Ms Troiano claims against Mr Voci, against PSCA and against the third to eleventh defendants (‘the Voci companies’).
Ms Troiano alleges that on 14 November 2014 she entered into a joint venture agreement with Mr Voci (‘the MPD Agreement’). The joint venture agreement is alleged to be partly in writing and partly to be implied. Documents relied upon as constituting the MPD Agreement comprise emails exchanged on 29 October 2014 between Ms Troiano, Mr Voci, and his personal assistant, Ms Sainato, a written proposal from Mr Voci dated 6 November 2014, and the 14 November 2014 agreement.
Ms Troiano alleges that upon her entry into the joint venture agreement with PSCA and Mr Voci it was agreed that:
(a)a new Major Projects Division (‘MPD’) would be established within PSCA to deal with ‘Major Projects’ to be operated and managed by her;
(b)she would be appointed as Senior Development Manager of the newly established MPD and would receive a base salary, plus superannuation;
(c)she would manage Major Projects for third parties and Major Projects which she and Mr Voci agreed to undertake together;
(d)she would have an equity and profit share entitlement in the fees derived from Major Projects managed for third parties; and
(e)she would have a 25% equity and profit share entitlement in Major Projects which she and Mr Voci agreed to undertake together.
The 14 November 2014 agreement is the only agreement signed by the parties. Ms Troiano contends that it binds Mr Voci personally. It lies at the heart of Ms Troiano’s primary claim for breach (alternatively repudiation) of contract.
In the alternative, Ms Troiano seeks rectification of the 14 November 2014 agreement so as to provide that Mr Voci personally is bound by its terms. She alleges a common intention that, if she and Mr Voci were able to secure the rights to acquire Bindts Road, a special purpose vehicle or vehicles would be incorporated to purchase and develop the project, and she would have an immediate 25% equity and profit share in Bindts Road; such an arrangement was to also apply to any other ‘particularly large Major Project’ that she and Mr Voci agreed to undertake themselves.[1]
[1]Court Book and Supplementary Court Book (together, ‘CB’), 10203-4.
While not forming part of her pleaded case, a notable feature of the joint venture for which Ms Troiano contends is that she was not to be required to make a financial contribution to the joint venture, or to bear any financial risk, whether as a guarantor, company director or otherwise.
The 14 November 2014 agreement includes, in the ‘Remuneration’ section, item 3 of the Schedule to the agreement (‘Remuneration Section’), the words ‘when a particularly large ‘Major Project’ eventuates (such as Bindts Road, Epping) …’.[2] Ms Troiano contends that after she began working with Mr Voci and PSCA, two ‘particularly large Major Projects’ eventuated: Bindts Road and Donnybrook. Ms Troiano claims to be entitled to a 25% share of equity and profit in both of those projects.
[2]CB, 1258.
Mr Voci and PSCA deny the existence of the MPD Agreement as alleged. The defendants allege the 14 November 2014 agreement, defined in the Defence as the ‘True Agreement’, was an employment agreement between Ms Troiano and PSCA. They allege Ms Troiano remained an employee only of PSCA until 20 September 2016 when PSCA accepted her repudiation of that agreement. The defendants deny the existence of any agreement between Ms Troiano and Mr Voci personally, whether as to equity and profit share, or otherwise.
The defendants deny Ms Troiano’s primary claim in contract and her alternative claim for rectification. They contend that as part of the True Agreement it was agreed that in the future a new company, ‘PSCA Major Projects’, would be established. They contend that, subject to performance conditions being met, Ms Troiano could be granted a 25% equity and 25% profit share in that company. They allege that in September 2015 Ms Troiano and Mr Voci agreed that no such company would be established and that Ms Troiano would have no entitlement to equity or profit share (‘the Variation Agreement’).[3]
[3]Defined in the Defence to Third Further Amended Statement of Claim, dated 29 March 2021 (‘Defence’), [10C1].
Ms Troiano claims, in the alternative, for:
(a)breach of fiduciary duty by Mr Voci and the Voci companies;
(b)knowing involvement in breach of fiduciary duty by PSCA and the Voci companies;
(c)inducing breach of contract on the part of Mr Voci;
(d)estoppel;
(e)misleading and deceptive conduct contrary to s 18 of sch 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) (‘the ACL’); and
(f)for oppressive conduct contrary to s 233 of the Corporations Act 2001 (Cth) (‘the Act’).
The defendants deny the common intention that underpins Ms Troiano’s claim for rectification. Namely that she would have an immediate 25% equity and profit share in Bindts Road if the rights to acquire Bindts Road were secured, and the same in the case of any other ‘particularly large Major Project that eventuated’. They deny Donnybrook was a ‘particularly large Major Project’. They also deny that it ‘eventuated’.[4]
[4]Defence, [37].
Mr Voci and the Voci companies deny the fiduciary duties alleged were owed or, if owed, were breached. Mr Voci, PSCA and the Voci companies deny the allegations of knowing involvement in breach of fiduciary duty. The claim against Mr Voci for inducing breach of contract is denied. Ms Troiano’s claims alleging estoppel, misleading and deceptive conduct contrary to the ACL and oppression contrary to the Act are also denied.

The land at 130 and 150 Bindts Road was purchased by contracts of sale dated 27 July 2015 in the names of the third defendant, River Hills Estate Pty Ltd (150 Bindts Road) and the fourth defendant, River Hills Estate 2 Pty Ltd (130 Bindts Road). On 7 May 2016 the remaining four parcels of land that went to make up Bindts Road were purchased by the fifth defendant, River Hills Estate 3 Pty Ltd (100 Bindts Road), the sixth defendant, River Hills Estate 4 Pty Ltd (90 Bindts Road), the seventh defendant, River Hills Estate 5 Pty Ltd (60 Bindts Road), and the eighth defendant, River Hills Estate 6 Pty Ltd (40 Bindts Road). Each of the Bindts Road contracts were on terms that provided for settlement at least 12 months after the date of contract.

On 4 August 2015, Mr Voci contracted to purchase Donnybrook.
The Defence alleges the September 2015 Variation Agreement followed a period of poor performance by Ms Troiano. It alleges that, in the course of three meetings on 9 September 2015 and shortly thereafter, it was agreed that in consideration of Ms Troiano continuing to be employed by PSCA, she would not be provided with any profit share or equity, and that upon a replacement ‘Senior Development Manager’ being appointed and commencing in that position, her salary would be reduced. The Variation Agreement alleged was not in writing. In the alternative, the defendants allege that Ms Troiano is estopped from denying the Variation Agreement.
Ms Troiano denies the Variation Agreement. She disputes Mr Voci’s account of the events of 9 September 2015 and the defendants’ categorisation of the consequences of those events and the events that followed.
On 1 December 2015, Mr Voci nominated the tenth defendant, 1285 Donnybrook Road Pty Ltd, a company of which he is the sole director and shareholder (‘1285 Donnybrook Road’), as the purchaser of Donnybrook.
The relationship between Ms Troiano and Mr Voci began to deteriorate by around May 2016. On 16 July 2016, Ms Troiano complained to Mr Voci that their original agreement and his word to her about percentage share had not been honoured. On 18 July 2016, Ms Troiano was handed a proposed new contract with PSCA. It provided for a reduced salary, a demotion from Senior Development Manager to Development Manager, and it did not mention equity or profit share. Despite repeated requests to sign the new contract, Ms Troiano declined to do so. On 15 September 2016, in a letter on PSCA letterhead, signed by him as its director, Mr Voci accused Ms Troiano of misconduct. On 16 September 2016, Ms Troiano responded, denying the allegations of misconduct and giving notice of her resignation. Mr Voci responded on 20 September 2016, once again in his capacity as director of PSCA, accepting Ms Troiano’s resignation and making further allegations of misconduct.
These events give rise to competing allegations of repudiation. The Defence alleges that between July and September 2016 Ms Troiano acted in breach of the True Agreement and that her actions constituted repudiation of that agreement, which repudiation PSCA accepted on 20 September 2016.
Ms Troiano disputes the allegations of breach. She alleges that it was Mr Voci and PSCA that wrongfully repudiated the MPD Agreement. She pleads that on 15 September 2016 she was wrongly accused of misconduct and that by making such wrongful allegations, Mr Voci and PSCA wrongfully repudiated the MPD Agreement. She alleges that she accepted that repudiation on 16 September 2016.
Ms Troiano had no involvement in projects of Mr Voci, PSCA or the Voci companies after 20 September 2016.
In November 2017 the Bindts Road land was sold by the River Hills companies and Mr Voci to Dahua Group Melbourne Number 8 Pty Ltd (‘Dahua’) under a nomination agreement (‘the Dahua Nomination Agreement’) for approximately $74 million.[5]
[5]The obligations of Dahua pursuant to the Dahua Nomination Agreement were guaranteed by Dahua Group Melbourne Investment Pty Ltd.
In December 2018 changes were made in the contractual arrangements relating to Bindts Road and Donnybrook. Ms Troiano alleges that by entering into those changed contractual arrangements, Mr Voci and the defendants preferred their own interests to her interests, and acted in breach of their fiduciary duties.
Because of the allegations concerning those changed contractual arrangements, it is important to describe them in the introduction to these reasons, albeit briefly.
On 18 December 2018 Mr Voci entered into a heads of agreement (‘2018 Heads of Agreement’) with LIVV Developments Pty Ltd pursuant to which he agreed to revoke the nomination of 1285 Donnybrook as the purchaser of Donnybrook and to nominate a new purchaser, LIVV 1285 Donnybrook Road Pty Ltd (‘LIVV 1285’) in its place. A company controlled by Mr Voci, RSS Family Pty Ltd (the eleventh defendant), became a 35% shareholder in LIVV 1285. In place of PSCA as the provider of development-related services for Donnybrook, a third party was to be contracted to provide those services in return for 12% of gross profit and other financial benefits.
Ms Troiano claims that Mr Voci is liable for the loss of her interest in the Donnybrook project, the value of which is 25% of between $9.1 and $10.7 million, i.e. between $2.4-$2.7 million. Alternatively, she claims an entitlement to trace her 25% interest in Donnybrook into 25 of the shares in LIVV 1285 held by RSS Family Pty Ltd. She contends those shares should be declared to be held on constructive trust for her.
On 20 December 2018, Mr Voci, the Voci Companies and Dahua made a Deed of Variation (‘Deed of Variation’), pursuant to which the nomination fee payable by Dahua in respect of Bindts Road under the Dahua Nomination Agreement was reduced by $8,475,979.
Ms Troiano claims an entitlement to 25% of the equity or profits derived by the Voci companies relating to Bindts Road under the Dahua Nomination Agreement, including 25% of the sum of $8,475,979, the reduced nomination fee resulting from the Deed of Variation. She also claims 25% of the profits subsequently made by Mr Voci and the Voci companies with the use of the profits they made from the development and sale of Bindts Road.
Ms Troiano alleges there were eight other Major Projects of the MPD in respect of which she is entitled to a 25% share of equity and profit. Mr Voci denies that the eight projects identified by Ms Troiano were ‘Major Projects’, or that Ms Troiano has or had any entitlement to an equity or profit share concerning any of them.
On 6 December 2018, a letter of demand was sent on Ms Troiano’s behalf to Mr Voci in his personal capacity and in his capacity as director and shareholder of PSCA, and the Voci companies. On 14 January 2019, Ms Troiano initiated this proceeding.
Resolution of the key issues in dispute primarily turns on the events that took place, and on a limited number of documents brought into existence, during three different time periods:
(a) August to November 2014;
(b) 9 September 2015 and the lead up to 9 September 2015; and
(c)May to September 2016.
The trial occupied 23 days and the Court Book and Supplementary Court Book comprise approximately 13,000 pages. In addition to Ms Troiano and Mr Voci, witness statements were filed from 17 witnesses. Three of those witnesses were not called, and two were not required to attend for cross-examination. Evidence was given by witness statement with evidence of critical conversations and meetings being given orally. Due to restrictions relating to the COVID-19 pandemic, the evidence of the key protagonists, Ms Troiano and Voci, and of one of the witnesses of fact, Mr Cardamone, was given first, followed by the evidence of other lay witnesses. The main hearing was split into two separate blocks of time to facilitate the provision of expert reports which were not available at the time the trial was scheduled to commence. After the hearing concluded, the accounting experts provided a matrix setting out their competing positions as to various financial issues that continued to separate the parties.
The trial was very fact intensive. Many issues, of both fact and law, arose. The original statement of claim was amended on 13 September 2019 and again on 22 December 2020. That was the pleading upon which Ms Troiano relied at the commencement of the trial. The defendants pleaded to that amended statement of claim on 25 January 2021. The trial commenced on 4 February 2021. On 9 February 2021 Ms Troiano was given leave to file and serve the third further amended statement of claim (‘TFASC’). The defendants pleaded to the TFASC on 15 February 2021. On 25 March 2021 they were given leave to file and serve a further amended defence (‘Defence’). On 17 May 2021 Ms Troiano filed her amended reply (‘Reply’). The pleadings that govern the issues for determination are the TFASC, the Defence and the Reply.
The events in contest took place between five and seven years prior to the trial. Ms Troiano and Mr Voci were cross-examined at great length, in each case for four days or more. Given the passage of time, contemporaneous documents, viewed in sequence, provide the most reliable evidence of the events that happened.
These reasons are structured as follows:
(a)First, an identification of the parties.
(b)Second, an identification of the lay witnesses.
(c)Third, an identification of the issues.
(d)Fourth, a discussion of the facts. This discussion is chronological and in sections. It includes findings of fact concerning disputed conversations and events in the sequence in which those matters arose at the time. It begins by recounting the factual background, followed by the period 14 August 2014 to 29 October 2014, then the MPD Agreement which involves a consideration of the period between 29 October 2014 and 14 November 2014 (including communications relied on by Ms Troiano to constitute the MPD Agreement).
(e)Fifth, departing from the factual chronology, the identification of the contract, the parties to that contract, and its terms.
(f)Sixth, returning to the factual chronology, the period November 2014 to September 2015, taking separately events relating to the work of the MPD, Bindts Road, and Donnybrook.
(g)Seventh, the Variation Agreement of 9 September 2015 and the associated conventional and promissory estoppels upon which the defendants rely.
(h)Eighth, consideration of the period October 2015 to September 2019. Included within that period is the breakdown of the relationship in 2016 and contested matters concerning repudiation.
(i)Ninth, the financial and accounting evidence, including a consideration of the expert evidence.
(j)Tenth, findings concerning the issues earlier identified for determination.
(k)Eleventh, relief.
(l)Finally, disposition.
THE PARTIES
Ms Troiano
Ms Troiano made four witness statements dated 4 July 2019, 20 August 2019, 20 September 2019, and May 2020.
Mr Voci

Mr Voci made two witness statements dated 20 November 2020 and 3 February 2021.
PSCA
PSCA was incorporated by Mr Voci on 22 February 2008. PSCA acts as trustee of the Kito Architecture Trust. It is a provider of services to third party property development investors and to Mr Voci and companies associated with him.
River Hills Estate Pty Ltd
River Hills Estate Pty Ltd was incorporated on 22 April 2015. Mr Voci is and has been the sole shareholder and director of River Hills Estate Pty Ltd since its incorporation.
On 8 April 2015 Dual Occ Pty Ltd, a company of which Mr Voci was the sole director and shareholder, or its nominee, acquired the right to purchase 130 and 150 Bindts Road from the Cvetanovski family. River Hills Estate Pty Ltd was the nominee in respect of 150 Bindts Road.

On 27 July 2015, River Hills Estate Pty Ltd contracted to buy 150 Bindts Road from the Cvetanovski family for $13,204,800 with a deposit of $560,240 due to be paid in 120 days from the day of sale (with a $100,000 non-refundable deposit already having been paid), and the balance to be paid over 48 months.
On 23 November 2017, pursuant to the Dahua Nomination Agreement, River Hills Estate Pty Ltd nominated Dahua to complete the contract of sale for the purchase of 150 Bindts Road in exchange for a nomination fee of $11,428,007.14 and reimbursement of payments previously made to the Cvetanovski family of $1,914,696.
On 20 December 2018 River Hills Estate Pty Ltd entered into the Deed of Variation with Dahua.
River Hill Estate 2 Pty Ltd
River Hill Estate 2 Pty Ltd was incorporated on 20 May 2015. Mr Voci is and has been the sole shareholder and director of River Hill Estate 2 Pty Ltd since its incorporation.
On 27 July 2015, River Hills Estate 2 Pty Ltd contracted to buy 130 Bindts Road from the Cvetanovski family for $8,553,600 with a deposit of $327,680 due in 120 days (with a $100,000 non-refundable deposit already having been paid), and the balance over 48 months.
On 23 November 2017, pursuant to the Dahua Nomination Agreement, River Hills Estate No 2 Pty Ltd nominated Dahua to complete the contract of sale for the purchase of 130 Bindts Road in exchange for a nomination fee of $8,511,602.47 and reimbursement of payments previously made to the Cvetanovski family of $1,240,272.
On 20 December 2018 River Hills Estate No 2 Pty Ltd entered into the Deed of Variation pursuant to which the nomination fee payable by Dahua was reduced to $5,522,721.62.
River Hills Estate 3 Pty Ltd, River Hills Estate 4 Pty Ltd, River Hills Estate 5 Pty Ltd, River Hills Estate 6 Pty Ltd
Each of these companies was incorporated on 22 September 2015. Mr Voci is and has been the sole director of each of them since incorporation. Mr Voci was also the sole shareholder of each of them from 22 September 2015 until 27 April 2016, when Wollert Projects Pty Ltd, a company controlled by Mr Voci, became the sole shareholder of each of those companies.
On 7 May 2016, River Hills Estate 3 Pty Ltd contracted to buy 100 Bindts Road for $4,918,300 with a deposit of $491,830 payable as to $40,000 on signing, $205,915 by 2 November 2016, $245,915 by 2 May 2017 and the balance on 11 December 2018. On 23 November 2017 pursuant to the Dahua Nomination Agreement, River Hills Estate 3 Pty Ltd nominated Dahua to complete the contract relating to 100 Bindts Road in return for a nomination fee of $4,490,416.54 and reimbursement of payments made to the vendor of $491,830.
On 7 May 2016, River Hills Estate 4 Pty Ltd contracted to buy 90 Bindts Road for $6,117,050 with a deposit of $611,705 payable as to $40,000 on signing, and $265,852 by 2 November 2016, $305,853 by 2 May 2017 and the balance on 11 December 2018. On 23 November 2017, pursuant to the Dahua Nomination Agreement, River Hills Estate 4 Pty Ltd nominated Dahua to complete the contract relating to 90 Bindts Road in return for a nomination fee of $5,285,146.29 and reimbursement of payments made to the vendor of $611,705.
On 7 May 2016, River Hills Estate 5 Pty Ltd contracted to buy 60 Bindts Road Pty Ltd from David and June Freeman for $2,178,300 with a deposit of $217,830 payable as to $40,000 on signing and $68,915 by 2 November 2016, $108,915 by 2 May 2017 and the balance on 11 December 2018. On 23 November 2017, pursuant to the Dahua Nomination Agreement, River Hills Estate 5 Pty Ltd nominated Dahua to complete the contract relating to 60 Bindts Road in return for a nomination fee of $1,757,870.21 and reimbursement of payments made to the vendor of $217,830.
On 7 May 2016, River Hills Estate 6 Pty Ltd contracted to buy 40 Bindts Road from David and June Freeman for $4,541,550 with a deposit of $454,155, payable as to $40,000 on signing and $187,077.50 by 2 November 2016, $227,077 by 2 May 2017 and the balance on 11 December 2018. On 23 November 2017 pursuant to the Dahua Nomination Agreement, River Hills Estate 6 Pty Ltd nominated Dahua to complete the contract relating to 40 Bindts Road in return for a nomination fee of $3,013,357.34 and reimbursement of payments made to the vendor of $454,155.
Wollert Projects Pty Ltd
Wollert Projects Pty Ltd was incorporated on 19 April 2016. Mr Voci is and has been its sole director and shareholder from incorporation. It holds the shares in each of the River Hills Estate companies numbered 3, 4, 5 and 6.
1285 Donnybrook Road Pty Ltd
1285 Donnybrook Road was incorporated on 9 October 2015. Mr Voci is and has been its sole director and shareholder from incorporation. On 1 December 2015 Mr Voci nominated this company as the purchaser of Donnybrook.
Pursuant to the 2018 Heads of Agreement, Mr Voci revoked his earlier nomination in favour of 1285 Donnybrook Road as the purchaser of Donnybrook and nominated LIVV 1285 in its place.
RSS Family Pty Ltd
RSS Family Pty Ltd was incorporated on 22 April 2015. Silvana Voci, the wife of Mr Voci, was originally its sole director and shareholder. From 15 August 2016 Mr Voci has been the sole director and shareholder in this company. RSS Family Pty Ltd is trustee of the RSS Voci Family Trust.
On 18 December 2018, pursuant to the 2018 Heads of Agreement, RSS Family in its capacity as trustee of the RSS Voci Family Trust, became a 35% shareholder of LIVV 1285.
THE WITNESSES
Ms Troiano
In their closing submissions the defendants were extremely critical of Ms Troiano as a witness. They submitted that her evidence should be treated with substantial caution and that there were many examples of her prevarication, unresponsive speeches and gratuitous character attacks. They submitted that on occasion she was an unreliable and untruthful witness. The defendants accused Ms Troiano of ‘tax evasion’ and of making an unproven, unpleaded, but implicit case of improper conduct or bad faith.
The submissions concerning Ms Troiano’s evidence and accusations going to her credit were both extensive and extravagant. I do not propose to make findings of such conduct against Ms Troiano. Where on contested matters I have accepted her evidence, I have said so. Where in the same context I have not accepted her evidence, I have both said so, and endeavoured to explain why.
Mr Voci
I did not find Mr Voci to be an impressive witness. His evidence concerning the critical meeting on 9 September 2015 in support of the Variation Agreement was a fabrication. The email that he said he printed out and which he said formed the basis of discussion at the meeting did not exist at the time.
In her closing submissions, Ms Troiano did not contend for any overarching credit findings against Mr Voci and I do not propose to make any. As in the case of Ms Troiano’s evidence, where I have accepted Mr Voci’s evidence on contested matters, I have said so. Where I have not accepted his evidence, I have both said so and endeavoured to explain why.
Mr Cardamone
Alfred Cardamone is a PSCA employee who gave evidence on witness statement on behalf of the defendants and was cross-examined.
Mr Cardamone impressed as an honest witness, doing his best to recall events that occurred a long time ago.
Mr Williams
Mr Williams, from whom a witness statement was filed on behalf of the defendants, was not called and his witness statement was not tendered.
Ms Sainato
Ms Sainato was a PSCA employee who gave evidence on witness statement on behalf of the defendants and was cross-examined. She was employed at PSCA from 2009 until late October 2014 and again from May 2015 until 2020. Thereafter she was employed as a project manager in a building business unrelated to Mr Voci.
Ms Sainato was cross-examined about various payments made to her by PSCA and by Mr Voci. It is not necessary to make findings about those issues.
I considered Ms Sainato did her best to recall events from several years earlier.
Mr Stenning
Mr Stenning was one of Mr Voci/PSCA’s external lawyers at times relevant to this dispute. He gave evidence on witness statement on behalf of the defendants and was cross-examined.
He was cross-examined about issues concerning the contracts relating to 130-150 Bindts Road and about commission entitlements relating to Bindts Road. It is not necessary to make findings about those matters.
Mr Stenning presented as an honest witness. There is no reason not to act on his evidence. Where relevant to contested issues I have done so.
Mr Terziovski
Mr Terziovski is a solicitor who was retained in 2015 to act on behalf of the Cvetanovskis, the vendors of 130-150 Bindts Road. Mr Terziovski made a witness statement on behalf of Ms Troiano, gave evidence and was cross-examined. He presented as an independent and honest witness.
Mr Terziovski was cross-examined with a view to demonstrating that he acted for both sides of the sale transaction involving 130-150 Bindts Road. This topic is not one relevant to determination of the true issues in the proceeding. But in any case, I accept his evidence that he did not act for both sides. I accept his evidence that he never acted for PSCA or the purchasing parties, and that at all times his clients were the Cvetanovskis. I accept his evidence that he never obtained instructions to act for and nor did he open a file in the name of PSCA.
Mr Terziovski was cross-examined in relation to his dealings with Ms Troiano. Those dealings were quite limited and their relevance marginal.
Mr Rapita
Mr Rapita, a real estate agent who worked in the PSCA office and had significant involvement in the acquisition of both Bindts Road and Donnybrook, provided a witness statement and a witness statement in reply on behalf of Ms Troiano. Both statements formed part of the initial court book. Although his evidence was opened as part of Ms Troiano’s case, Mr Rapita was not called and his witness statements were not tendered.
Ms Florence
Angie Florence, an interior designer who was engaged by PSCA, provided a witness statement on behalf of Ms Troiano. Ms Florence was not called and her witness statement was not tendered.
Mr Basile
Mr Basile (also known as Bei Yilong), a PSCA employee, gave evidence on witness statement on behalf of the defendants and was cross-examined.
Mr Basile graduated as an architectural design draftsman from Box Hill College of TAFE in 1987 and, after a period working in design drafting between 1995 and 2001, in 1999 began working in and out of Australia and China. In 2001, he moved to China, where he was employed in various organisations until approximately March 2014.
Mr Basile and his wife Ms Wang returned to Australia in 2014. After Ms Wang had begun working for PSCA, Mr Voci met with Mr Basile and engaged him to expand the business into China and in other Asian countries and throughout Australia.
The evidence given by Mr Basile in his witness statement included that he was ‘astonished’ upon learning that, according to him, Ms Troiano could not read detailed plans. Various assertions of Ms Troiano’s incapability were found within his witness statement.[6] When tested on these matters, Mr Basile was unable to recount details; he said he could not specifically recall what consultants’ reports led him to form such views. To the extent relevant, I regard the criticisms of Ms Troiano and her performance of her role at PSCA in his witness statement to be overstated and lacking substance.
[6]CB, 11967-8.
Ms Wang
Ms Wang, a PSCA employee, gave evidence on witness statement on behalf of the defendants, and was cross-examined.
Ms Wang is the executive assistant employed by PSCA. She commenced her employment on 22 August 2014 and dealt with Ms Troiano as part of her work.
Generally Ms Wang’s evidence did not relate to contentious matters.
Mr Cheng
Mr Cheng, a retired investment consultant, a promoter of and investor in PSCA projects provided witness statements on behalf of Mr Troiano. Mr Cheng’s statements were tendered, without the requirement for him to attend for cross-examination.
Ms Drakopoulos
Ms Drakopoulos, a PSCA employee and architect, gave evidence on witness statement for the defendants, and was cross-examined.
Ms Drakopoulos is a registered architect who commenced her employment with PSCA on 31 August 2015. She remains a PSCA employee. When giving evidence, Ms Drakopoulos presented as defensive. By the tone of her evidence and her demeanour, she displayed a clear dislike, which she denied, of Ms Troiano. Where Ms Drakopoulos’ evidence is not corroborated by contemporaneous documents or where her evidence conflicts with the evidence of others, it is not appropriate to act on her evidence and I have not done so.
Mr Pezzi
Mr Pezzi, a former PSCA client, gave evidence on witness statement on behalf of the defendants, and was cross-examined.
Mr Pezzi was the investor in 4 Gardner Street, Richmond. Mr Pezzi gave evidence that Mr Voci is an equity investor in some of the projects in which he, Mr Pezzi, is involved in Queensland.
Mr Pezzi presented as an honest witness, doing his best to recall events that occurred some years earlier. I have referred, where relevant, to his evidence concerning Ms Troiano’s work on the Gardner Street project. Mr Pezzi was cross-examined in relation to business dealings between companies in which he was involved and PSCA during the period corresponding to the Gardner Street project and about his more recent business dealings with Mr Voci.
Ms Edhie-Wahidin
Ms Ya-Chi ‘Rachel’ Edhie-Wahidin is a client of PSCA who invested in its projects. She invested in the 105 Harvest Home Road project with her brothers. Ms Edhie-Wahidin gave evidence that Ms Troiano was ‘very well organised, efficient and pleasant to deal with’ and gave detailed reports at their meetings about progress on that project.[7]
[7]CB, 11429.
Ms Edhie-Wahidin made a witness statement on behalf Ms Troiano, and was cross-examined. I found Ms Edhie-Wahidin to be a credible witness.
Mr Noonan
Mr Noonan, a former PSCA employee, gave evidence on witness statement for the defendants and was cross-examined.
Mr Noonan was employed by PSCA between 6 March 2017 and July 2018. 95% of his time was spent on the Bindts Road, Donnybrook and Harvest Road projects. His work involved him managing an external consultant team which, in relation to Bindts Road included JCA Land Consultants (‘JCA’), Tract, PGA Engineering and a geotechnical company. Mr Noonan presented as an honest and straightforward witness whose evidence could be acted upon with confidence.
Mr Wise
Mr Wise is an accountant. Between October 2014 and 26 March 2020, he was employed by PSCA as a bookkeeper. Mr Wise gave evidence on witness statement on behalf of the defendants, and was cross-examined.
The subject matter of Mr Wise’s evidence was quite limited. I do not doubt the accuracy of his evidence.
Mr Barrow
Mr Barrow is an information technology and business consultant who carried out IT support work for PSCA. Mr Barrow provided statements on behalf of Ms Troiano, which were tendered in a modified form. He was not required to attend for cross-examination. Where his evidence was relevant, I have referred to it in the discussion of the facts.
Mr Cattapan
Mr Cattapan is a director of the firm of accountants who provide external accounting services to Mr Voci, to PSCA and the Voci companies. Mr Cattapan gave evidence. He is an experienced chartered accountant. He has been the accountant for Mr Voci and his companies for approximately the last eight years.
Mr Cattapan made an initial statement that dealt with his interaction with Ms Troiano during the period in which she worked at PSCA. He made a supplementary witness statement in which he described the use of the PSCA’s MYOB accounting records for the provision of financial statements. He also set out his analysis of the profits of the Bindts Road project, the Donnybrook project and the eight other ‘Major Projects’, by reference to supporting financial documentation provided to him and his firm, sourced primarily from records maintained by Mr Wise and PSCA staff.
Mr Cattapan gave evidence and was cross-examined in relation to his original witness statement and in relation to some limited aspects of his supplementary witness statement. In relation to those factual matters I found Mr Cattapan to be a witness who did his best to be responsive when cross-examined. I found Mr Cattapan to be both honest and reliable.
Mr Cattapan conferred with the accounting experts, Ms Smith and Ms Wright, and was a signatory to the joint expert report of the accounting witnesses. Following separate cross-examination on his affidavits, Mr Cattapan participated in the conclave of accountants, together with Ms Smith and Ms Wright.
THE ISSUES
Pre-trial directions required the parties to confer and file an agreed statement of issues as contemplated by s 50 of the Civil Procedure Act 2010 (Vic). The parties were not able to agree upon the key issues in dispute. The parties filed separate statements of issues prior to the commencement of the trial.
When identifying the issues requiring determination, it is necessary to have regard to the final version of the pleadings, the written and oral opening submissions and to the written and oral closing submissions.
Ms Troiano filed submissions and a draft form of order for which she contends in respect of equitable compensation. The defendants responded to those submissions. Their response included what they contend to be the PSCA profit from ‘Major Projects’ and what they contend to be the maximum equitable compensation arising from the asserted joint venture.
The contract
The parties do not agree as to what constitutes the contract between them or as to the terms of that contract.
Ms Troiano alleges the MPD Agreement is a joint venture agreement between her and Mr Voci personally; an agreement partly in writing and partly implied. The emails of 29 October 2014, the 6 November 2014 letter from Mr Voci and the 14 November 2014 agreement are relied on.
The Defence alleges the True Agreement, constituted by the 14 November 2014 agreement, is an employment agreement between Ms Troiano and PSCA as ‘Senior Development Manager – PS Major Projects Division’. The terms of the True Agreement are said to be in writing, as contained in the 14 November 2014 agreement, and to be implied.
Ms Troiano contends the terms of the MPD Agreement include that:
…
(e)Mr Voci could himself acquire or use a third entity controlled by him, such as Dual Occ, to acquire initial rights with respect to a particularly large Major Project in respect of which rights the plaintiff would hold a 25% beneficial interest.
(f)PSCA and/or Mr Voci would do all such things as were necessary to give effect to the plaintiff’s entitlements, including taking all steps necessary to cause Newco to recognise and give effect to the plaintiff’s equity and profit share entitlement in such project.[8]
[8]CB, 10203.
The defendants allege the terms of the True Agreement include:
…
(l)“PSCA will provide [the plaintiff] with 10% equity and 10% profit share from PSCA Major Projects after twelve (12) months from [15 November 2014] with a further 15% on the 24th month (15 November 2016) to a total of 25% equity and profit of the division, … [but if] a particularly large ‘Major Project’ eventuates, (such as Bindts Road. Epping), then we shall bypass the above timeline and immediately establish a new company, of which a total of 25% equity and 25% profit share (to a grand total of 25%) applies from the outset without the qualifying period” [item 3 of the Reference Schedule below the 3 targets enumerated therein];
(m)The plaintiff owed a duty of fidelity as employee to PSCA as her employer [implied];
(n)The plaintiff as employee owed a duty to PSCA as her employer not to use (other than in the course of PSCA’s business) or misuse the confidential information of PSCA gained by her in the course of her employment [implied]; and
(o)Any rights which the plaintiff may have in respect of a profit share or equity in the MPD were subject to the plaintiff’s continuing employment with PSCA [implied].[9]
[9]Defence, [10B(l)-(o)].

The defendants contend that, pursuant to the True Agreement, Ms Troiano was only entitled to a 25% equity and profit share of a new company to conduct the PSCA MPD once established; a company which never was established. They allege the 14 November 2014 agreement was void for uncertainty or as an incomplete agreement to agree. Further, that if Ms Troiano is entitled to 25% of profit on management fees charged by PSCA, any such entitlement does not extend beyond fees charged by PSCA up until Ms Troiano left PSCA in September 2016.
The competing positions as to the contract require the Court to determine:
(a)Who are the parties to the contract?
(b)What constitutes the contract?
(c)What are the terms of the contract?
(d)Is the contract uncertain or an agreement to agree and therefore void?
Rectification of the contract
The first page of the 14 November 2014 agreement identifies the parties and includes an offer of employment:
The Remuneration Section of the 14 November 2014 agreement provides:[10]
[10]CB, 1258.
3.Remuneration:
1.First project secured $75,000.00 p/a + Superannuation - up to 15/1/15
2.$110,000.00 p/a + Superannuation - from 15/1/15 onwards
3.Third project secured $140,000.00 p/a + Superannuation
•Target for the first 12 months; Three (3) projects
•Target for the second 12 months: Three (3) projects
Target Projects can be secured from any source (company internal/external)
PSCA will provide you with 10% equity and 10% profit share from PSCA Major Projects after twelve (12) months, from the commencement date of this agreement herein, with a further 15% on the 24th month (15/11/16), to a total of 25% equity and profit of the division by the 15/11/16.
The exception to this timeline for equity/profit share, is in the instance when a particularly large ‘Major Project’ eventuates, (such as Bindts Rd. Epping), then we shall bypass the above timeline and immediately establish a new company, of which a total of 25% equity and 25% profit share (to a grand total of 25%) applies from the outset, without the qualifying period.
Ms Troiano alleges it was the common intention of herself, Mr Voci, and PSCA that Mr Voci would personally be a party to, and be bound by, the 14 November 2014 agreement. She alleges that the reference to ‘we’ in the final sentence of the Remuneration Section is a reference to her and Mr Voci personally. She alleges that if she and Mr Voci were able to secure the right to acquire Bindts Road on acceptable terms, a special purpose vehicle or vehicles would be incorporated to do so and to develop Bindts Road and she would immediately have a 25% equity and profit share entitlement in that project. Further, Ms Troiano alleges that the same arrangement as applied to Bindts Road was agreed to apply to any other ‘particularly large Major Project’ which she and Mr Voci agreed to undertake themselves. Ms Troiano pleads that if the 14 November 2014 agreement does not record the common intention, then she is entitled to rectification of that agreement.
The Defence denies the existence of the common intention and denies the claim for rectification. It alleges that in any case Ms Troiano is not entitled to equitable relief because of disentitling conduct.
The rectification claims require the Court to determine:
(a)Was there the common intention alleged?
(b)Is Ms Troiano entitled to rectification?
(c)If Ms Troiano is otherwise entitled to rectification, is that not the case by reason of the matters relied on in the Defence?
Was there a Variation Agreement / Estoppel?
The defendants allege the True Agreement was varied on 9 September 2015 (‘the Variation Agreement’). The Defence alleges that rather than dismiss Ms Troiano for poor performance, the True Agreement was varied on terms that:
10C1.…
(a)PSCA would replace the plaintiff as ‘Senior Development Manager’ and the plaintiff would assist PSCA in the recruitment of such a replacement;
(b)PSCA would continue to employ the plaintiff at the plaintiff’s existing salary for only such time as until a replacement ‘Senior Development Manager’ would be appointed and commence in the employ of PSCA, whereupon the plaintiff’s salary would be reduced following renegotiation;
(c)PSCA would not incorporate or establish the MPD as a consequence of the plaintiff failing to bring forward any potential clients for the proposed MDP business, and as a consequence of the plaintiff failing to develop and bring forward a business proposal for agreement, as originally agreed by the plaintiff and Mr Voci prior to the plaintiff’s employment; and
(d)PSCA would not provide any profit share or equity to the plaintiff in respect of the MPD or any other part of PSCA,
(the Variation Agreement).[11]
[11]Defence, [10C1(a-d)].
The Variation Agreement is alleged to have been constituted by three conversations between Mr Voci and Ms Troiano on or about 9 September 2015, each of which lasted approximately one hour. During those conversations Mr Voci raised a number of matters concerning Ms Troiano’s poor performance; Ms Troiano requested that she be allowed to remain with PSCA so as to learn and gain experience, a request to which Mr Voci agreed. The case for the defendants is that at the end of the three meetings, in substance, Ms Troiano thanked Mr Voci for not dismissing her, she accepted his offer to continue her employment on the basis that she would receive a demotion, the MPD would not be incorporated, she would not receive any profit share or equity and she would assist Mr Voci to interview a replacement for her as ‘Senior Development Manager’.
The Defence alleges that in due performance of the Variation Agreement, no steps were taken to incorporate the MPD, that Ms Troiano assisted in the interviewing of a ‘Development Director’, Mr Raniolo, employed from about 5 November 2015 to act as her ‘superior’ and to perform work that Ms Troiano had failed to perform. Further, that after Mr Raniolo proved unsuitable, that Ms Troiano further assisted in finding another ‘Development Director’, Mr Phillips, who was employed in that role on 5 September 2016. The Defence alleges that if there was no Variation Agreement that Ms Troiano is estopped from denying the existence of such an agreement.
The Variation Agreement and the estoppel allegations are denied in the Reply. The allegation that Mr Raniolo was employed as a replacement for Ms Troiano is denied. The Reply alleges that Mr Raniolo was employed to assist Ms Troiano in the work of the MPD.
The Variation Agreement and the defendants’ related estoppel allegations require the Court to determine:
(a)whether the Variation Agreement was made; and
(b)whether an estoppel arose to the effect of the Variation Agreement on and from 9 September 2015?
Breach of contract/repudiation
The TFASC alleges that PSCA and Mr Voci breached the MPD Agreement including:
(a)by taking steps to defeat Ms Troiano’s rights to a 25% equity and profit share in Bindts Road and Donnybrook;
(b)by failing to transfer 25% of the issued shares in the Voci companies to Ms Troiano;
(c)by failing to distribute or causing to be distributed to Ms Troiano 25% of the Dahua sale proceeds in respect of Bindts Road; and
(d)by failing to provide or cause to be provided to Ms Troiano, her equity entitlement and profit share in respect of the other Major Projects.
Ms Troiano alleges that, by reason of those breaches, she suffered loss and damage including the loss of a 25% equity and 25% profit share in Bindts Road and Donnybrook and loss of equity and profit share in the other Major Projects. In addition, Ms Troiano alleges that she lost the opportunity of securing such benefits in the future including the opportunity to complete 24 months’ service for PSCA and to thereby become entitled to 25% of the profits of the other Major Projects and future Major Projects.
Separately, Ms Troiano alleges that if Mr Voci was not a party to the MPD Agreement and if PSCA alone breached that agreement, then Mr Voci induced PSCA to do so.
The new contract of employment provided by PSCA to Ms Troiano on 18 July 2016, if agreed to, would have reduced her annual salary from $140,000 to $110,000. It made no provision for equity or profit share. On 15 September 2016, Ms Troiano, not having signed that contract, was paid at a lower rate in accordance with the new contract and was provided with a letter accusing her of serious misconduct. On 16 September 2016 Ms Troiano provided a letter of resignation.
The Defence alleges breach by Ms Troiano of the True Agreement by her conduct between July and September 2016, and by her failure and refusal to deliver up PSCA’s confidential information, documents and property removed by her during September 2016. The allegations of breach are denied in the Reply. Ms Troiano says that on 8 February 2019 she provided copies of all PSCA related emails to PSCA’s solicitors.
The Defence alleges that Ms Troiano repudiated the True Agreement which repudiation PSCA accepted.
Concerning breach of contract/repudiation, on the pleadings the Court is required to determine:
(a)Whether the allegations of breach of contract alleged by Ms Troiano are made out;
(b)If so, whether Ms Troiano is entitled to any, and if so what, damages for breach of contract?;
(c)Whether Mr Voci induced breach of contract by PSCA;
(d)Whether the allegations of breach of contract in the Defence are made out;
(e)Whether PSCA and Mr Voci repudiated the MPD Agreement;
(f)Whether Ms Troiano repudiated the True Agreement.
Questions concerning Bindts Road
A number of discrete questions arise on the pleadings concerning Bindts Road.
Was the entry into heads of agreement to purchase parcels of land at Bindts Road by Dual Occ Pty Ltd pursuant to the MPD Agreement?[12]
[12]CB, 10206, TFASC, [13]-[14]; denied in the Defence, [13]-[14] alleging further that Dual Occ was never privy to or subject to the True Agreement and did not provide project management services for reward or conduct business as a division of PSCA.
Was the incorporation of the Voci companies who contracted to purchase land at Bindts Road and the entry by those companies into contracts for the purchase of land in Bindts Road pursuant to the MPD Agreement?[13]
[13]CB, 10206, TFASC [15]–[24]; denied in the Defence and noting Ms Troiano made no contribution to the purchase price of the land in question or any other contribution to the development costs or investment risks.
Did Bindts Road, agreed to be a ‘Major Project’, ‘eventuate’ within the meaning of the 14 November 2014 agreement?
Is it the case, as alleged by Ms Troiano, that pursuant to the MPD Agreement:
(a)that 25% of all rights held in respect of Bindts Road by each of the Voci companies who purchased parcels of land in Bindts Road, including any proceeds to which those companies were entitled in selling those rights, were and are held by them beneficially for Ms Troiano?
(b)alternatively, that 25% of the issued shares in those purchaser companies were and are held beneficially for Ms Troiano, and does she have the right to have those shares transferred to her name?
(c)alternatively, that 25% of all profit made and which may be made by those purchaser companies and any other associated entity into whose hands such profit is or has been distributed or directed to be distributed is held by them or by Mr Voci beneficially for Ms Troiano?
If Ms Troiano has an entitlement to a share of profit in respect of the Bindts Road project, what is the correct calculation of the profit to which she is entitled?
Questions concerning Donnybrook
A number of discrete questions arise on the pleadings concerning Donnybrook.
Was Donnybrook a Major Project and did it ‘eventuate’ within the meaning of the 14 November 2014 agreement?
Was the execution of the contract for the purchase of Donnybrook by Mr Voci and the subsequent nomination of 1285 Donnybrook pursuant to the MPD Agreement?
Does or did Ms Troiano hold a 25% beneficial interest in Donnybrook?
Is Ms Troiano entitled to any part of the profit relating to the Donnybrook project and if so, what profit?
Other Major Projects
Separate claims are made by Ms Troiano concerning other ‘Major Projects’ and the MPD of PSCA. A number of questions arise on the pleadings concerning those claims.
Are any and if so which of the projects listed below ‘Major Projects’:
(a)12 Craig Street, Keilor East;
(b)57-63 Bailey Street, Belmont;
(c)8 Hunter Street, Richmond;
(d)15 Yarra Street, Richmond;
(e)278 Burwood Highway, Burwood;
(f)105 Harvest Home Road, Epping;
(g)4 Gardner Street, Richmond;
(h)18 Craig Street, Keilor East.
Is Ms Troiano entitled to 25% of all rights held or which may be held in those projects, and 25% of the profit derived by PSCA in respect of those projects and if so, what is that amount?
Is it the case that 25% of the proceeds received or profit made in respect of other Major Projects (excluding Bindts Road and Donnybrook) are held by PSCA on trust for Ms Troiano (‘the OMP Trust’)? If so:
(a)Did PSCA breach the OMP Trust by failing to distribute proceeds or profits to Ms Troiano?
(b)Did Mr Voci cause or procure breach of the OMP Trust?
(c)Is Ms Troiano entitled to trace her interest in the other Major Projects into all and any property held by Mr Voci, PSCA and any other entity associated with them that has been acquired utilising such funds and to require an accounting for account of 25% of the proceeds?
Claims for breach of fiduciary duty
The questions that follow concern the claims that fiduciary duties were owed, were breached, and that equitable relief should be granted in favour of Ms Troiano.
Did Mr Voci and/or the Voci companies who are the third to ninth and the eleventh defendants owe Ms Troiano any and if so what fiduciary duties?
If yes to the preceding question, did Mr Voci and/or the Voci companies or any of them, breach those fiduciary duties?
Did Mr Voci and PSCA assist the third to eighth defendants to knowingly breach the Bindts Road Trust pursuant to which the rights to proceeds of sale of the Dahua sale and the profits of Bindts Road to which the third to eighth defendants were entitled were held by them as to 25% on trust for Ms Troiano?
Is Ms Troiano entitled to succeed in her claims for breach of trust and knowing receipt concerning the Bindts Road project?
Is Ms Troiano entitled to succeed in her claim for breach of fiduciary duty in respect of the Donnybrook project?
If there has been breach of fiduciary duty, is Mrs Troiano entitled to equitable compensation and if so, how much?
Alternatively, is Ms Troiano entitled to a declaration that the third to ninth and the eleventh defendants hold her interest on constructive trust or are they liable to account to her?
If breach of fiduciary duty is otherwise established, is Ms Troiano precluded or disentitled from seeking equitable relief by reason of the matters alleged in the Defence?
Estoppel/breach of the ACL
Separately, Ms Troiano makes claims based on estoppel and on breach of the ACL. Those claims give rise to the questions that follow.
Did PSCA and Mr Voci make representations to Ms Troiano that:
(a)she would receive 10% equity and 10% profit share of PSCA Major Projects commenced by the MPD after 12 months from the commencement date of the MPD Agreement and a further 15% equity and profit share on and from the 24^th month (being 15 November 2016); and
(b)if she and Mr Voci secured particularly large Major Projects such as Bindts Road she would receive 25% equity in that project and a 25% share of its profit.
Ms Troiano alleges that these representations were made:
(c)in August 2014, during meetings between them;
(d)in an email dated 14 June 2015 from Mr Voci; and
(e)on 9 September 2015 when Mr Voci failed to dispute the contents of Ms Troiano’s email,
(‘the Representations’).
If the Representations or any of them were made, did Ms Troiano:
(a)act in reliance upon those Representations by introducing Bindts Road to Mr Voci; and
(b)act on those Representations in accepting the position of Senior Development Manager of the MPD and continuing in that position until 16 September 2016 and in devoting her resources and expertise towards securing and/or managing Major Projects for the MPD including Bindts Road and Donnybrook and the other Major Projects.
Assuming Ms Troiano acted on the Representations or any of them, did Ms Troiano suffer loss of opportunity of securing rewards elsewhere of the nature represented in respect of Bindts Road and Donnybrook and the other Major Projects?
In circumstances where PSCA and Mr Voci have failed to fulfil the assumption that Ms Troiano would receive equity and profit share as represented, is it the case that the defendants are estopped from asserting that she does not have the beneficial entitlements, rights and profits in paragraph 72(d)(i)–(viii) of the TFASC?
If the estoppels alleged arise, is Ms Troiano precluded or disentitled from seeking equitable relief by reason of the matters alleged in the Defence?
Ms Troiano’s claims relying upon the Corporations Act 2001 (Cth)
Finally, claims are made relying on the Corporations Act 2001 (Cth). The questions below arise concerning those claims.
Does Ms Troiano have standing to seek relief under ss 232 or 233 of the Act in respect of any of the third to eighth defendants, and in 1285 Donnybrook, or any other company nominated to complete the purchase of Donnybrook, as alleged in paragraph 83 of the TFASC?
If so, has the conduct of the affairs of those corporations or any of them been oppressive to, or unfairly prejudicial to, or unfairly discriminatory against Ms Troiano as a shareholder within the meaning of the Act and, if so, is she entitled to any and if so what relief under s 233 of the Act?
THE BACKGROUND FACTS
The parties prior to August 2014: Mr Voci and PSCA
In 2014, when he and Ms Troiano first met, Mr Voci was 41 years of age. He had completed year 12, he held a Certificate V in Building and in the past had completed courses in nutrition and personal training. From 1995 Mr Voci had purchased, renovated and subdivided residential properties. As at August 2014, he was the sole director and shareholder of PSCA.
A number of the documents prepared by Mr Voci contain spelling and grammatical errors, although generally the sense of what he intended to convey is readily ascertainable. In the past, Mr Voci experienced hearing loss in both ears and continues to experience significant difficulty with his hearing.

The case opened for the defendants was that PSCA is not and never has been a property developer. It is a service provider. I accept that to be the case.
In February 2008 PSCA, then called PNP Property Group Pty Ltd, was incorporated; on 15 February 2014, the company changed its name to PSCA. Mr Voci incorporated PSCA with the intention to use it as a base to find clients who were interested in completing a small development or subdivision.
In 2008, PSCA focused on offering a ‘backyard’ development and subdivision service. Typically that included procuring the plans, permits and building documentation necessary for the development, as well as the oversight of the construction of a second dwelling on the subdivided land. Much of the work was outsourced to external providers, such as external architects and town planners.
In 2009, PSCA was successful in bringing in its first clients. Mr Voci said that there was demand for PSCA’s services; he worked seven days a week, as did Ms Sainato and Mr Williams.
In 2010, Mr Lancaster (who was contracted at PSCA to assist with sales) introduced Mr Voci to a potential major development site at Armstrong Creek. The plan was to get the project to planning permit stage and then on-sell the site, or see if he and Mr Lancaster could develop it themselves. They set up a unit trust to undertake the project. They were equal shareholders in the trustee and through their respective family trusts, equal unit holders in the unit trust that held the land. They agreed that Mr Lancaster was to contribute the initial $250,000 equity required to fund obtaining the planning permits and Mr Voci was to invest his time, expertise and as sole director of the trustee company, was intended to take on risk concerning fund raising.

In the absence of other information about bad debts, Mr Cattapan and Ms Wright proceeded on the basis that bad debt expenses should be included in overheads. As there is no evidence of bad debts in relation to Bindts Road or the other projects in respect of which Ms Troiano makes her claims, I agree with Ms Smith that it is not appropriate to include bad debts in overheads.
Related party transactions
I agree with the views expressed by Ms Smith that, in circumstances where related party transactions are substantial, and where the Court has been provided with no evidence that explains why amounts paid have been rounded (or indeed otherwise as to the basis of the amounts paid), that it is appropriate to remove the impact of related party transactions when looking to calculate profit in relation to Bindts Road and Donnybrook.
Related party transactions which are itemised the third table in the Joint Matrix include bonus payments, commissions and intercompany salaries.
SOW Fees
The final issue which arose regarding the allocation of profits attributable to PSCA relates to the accounting treatment of SOW fees charged by PSCA.
In closing submissions Ms Troiano submitted that the SOW fees charged by PSCA to the River Hills companies could not be considered a genuine project cost. Amongst the matters relied on was a lack of detailed pricing in the SOW agreements, the round figures of the total charges and the fact that the subdivisions that PSCA promised to deliver were never delivered and most of the services listed in the SOW agreements were never provided.
Ms Troiano drew attention to the refund clause in the SOW, allowing PSCA to claim a refund should it not be successful in obtaining permits for dwellings, noting that no permit was ever obtained by PSCA for any of the Bindts Road properties. On this basis, Ms Troiano contended that the PSCA fees could not be considered a genuine project cost. In addition, Ms Troiano relied on evidence given by Ms Smith that the SOW fees, which totalled $7.9 million, appeared high. It was further submitted that there was no evidence of SOW agreements between PSCA and River Hills 1 and River Hills 2, a proposition not accepted by the defendants, who drew attention to entries evidencing those charges in the MYOB records.
I do not agree with Ms Troiano’s submission that the SOW fees charged to the River Hills companies were not a genuine project cost. The entry by the River Hills companies into agreements with PSCA and the payment of fees by those companies to PSCA was consistent with PSCA’s business model. It was also consistent with the 14 November 2014 agreement. That agreement expressly provided that if a ‘particularly large Major Project’ eventuates (such as Bindts Road) then the services in question would be provided by PSCA or a new company of which 75% of the equity and profit share would be held by PSCA. As earlier discussed, it was expressly agreed that the charges to be paid in respect of any such project would apply ‘from the outset’. The MYOB accounting entries support the fact of the PSCA changes. Ms Troiano was aware during the life of the projects that such costs were being incurred. As submitted on behalf the defendants, there was no refund guarantee in place in the case of the agreements relating to Bindts Road.
While the level of fees may have appeared high to Ms Smith, I do not accept that she had relevant expertise in relation to that issue. There is no reason to proceed other than on the basis of the SOW fees charged by PSCA in respect of Bindts Road. It follows, contrary to Ms Troiano’s submissions that project profitability should be assessed taking into account the PSCA charges.
Conclusion: Questions 2, 4 and 5
Reproduced below is the third table from the Joint Matrix, prepared by Ms Smith.

This table takes as its starting point Ms Smith’s revenue methodology and revenue base, as I agree are the correct starting point. The table helpfully shows the consequences of the application of that methodology and the monetary outcome depending upon the view taken of the various expenses referred to in the table when it comes to allocating overheads.
When it comes to calculate the profit made by PSCA as earlier discussed, the interest expense should be allowed but the other items (bonus payments, commissions, bad debt, donations, fines and penalties, accounting and intercompany salaries) should not be taken into account.
As I interpret the table, reproduced above, allowing the interest expense but not other items has the consequence that the profit made by PSCA referable to Bindts Road is $2,679,338. This method shows the profit based on Ms Smith’s methodology but adjusted to allow for the interest expense as calculated by Ms Wright.
When it comes to the profit made by PSCA relating to the Donnybrook project, the profit, adopting the same approach to the contested items, is $270,258.
When it comes to the profit made by PSCA relating to the eight other major projects, once again, adopting the same approach to contested items, the profit is $1,103,387.
Question 3: profit that would have been derived from the sale of Donnybrook
On this issue of the value of Donnybrook as at December 2018 and the question of what adjustment should be made on account of the condition requiring six lots to be provided to the vendor, Ms Troiano relied upon the evidence of Mr Brown and the defendants relied upon the evidence of Mr Papworth.
In the Joint Expert Matrix, Ms Smith produced a table that showed the profit that would have been derived from the sale of Donnybrook, taking into account the competing views about the appropriate allowance for the six lots expressed by Mr Brown and Mr Papworth. This table is reproduced below:
For the reasons earlier discussed, the appropriate allowance to make for the six blocks is $1.2 million.
Ms Smith acknowledged that her profit assessment does not take into account legal fees or due diligence costs but did not expect those costs would have a material impact on her profit calculations. She considered that settlement risks and finance risks are normally taken into account where the value of the property is based on its current market value.
I agree with Ms Smith that settlement risks and finance risks are not matters that are relevant to calculating market value. As a matter of normal practice, legal fees and sale commissions are matters taken into account when calculating actual loss but not when determining market value.
The gross profit referrable to Donnybrook as at 17 December 2018 is $9,522,000 without PSCA charges and $8,718,364 with PSCA charges as shown in the table reproduced above.

DETERMINATION OF THE ISSUES
Contract
Who are the parties to the contract?

For the reasons discussed at paragraphs 352 – 362 the parties to the contract are PSCA and Ms Troiano. Mr Voci is not a party to the contract.
What constitutes the contract?
As found at paragraph 364, the contract is constituted by the 14 November 2014 agreement.
What are the terms of the contract?
The non-controversial terms of the 14 November 2014 agreement are identified in the pleadings as discussed at paragraphs 365 – 366. The contested issues of construction of the terms of the agreement are discussed at paragraphs 367 – 415.
The term alleged by Ms Troiano that she was entitled to a 25% equity and profit share in underlying projects is not a term that arises on the proper construction of the 14 November 2014 agreement. Nor is it a term that is to be implied. To imply the term alleged would be inconsistent with the written agreement. There is no proper basis to do so having regard to the criteria in BP Refinery (Westernport) Pty Ltd v Shire of Hastings.[207]
[207](1977) 180 CLR 266.
The defendants allege, and it may be accepted, that it was an implied term of the 14 November 2014 agreement that Ms Troiano owed a duty of fidelity to PSCA as an incident of her employment. It is neither necessary nor appropriate to imply a term concerning confidentiality. That topic is comprehensively addressed in clauses 14 and 17 of the 14 November 2014 agreement.
The defendants allege an implied term that Ms Troiano’s entitlement to profit share or equity was subject to her continuing her employment with PSCA. It is true to say that while Ms Troiano continued in her employment, she had an entitlement to profit share and equity under the 14 November 2014 agreement. However, whether or not she had a continuing entitlement to such equity or profit share following termination depends upon the circumstances of that termination. The question of repudiation is addressed separately below.
Is the contract uncertain or an agreement to agree and therefore void?
For the reasons discussed at paragraphs 370 – 371 and 374 – 403, neither the whole of the 14 November 2014 agreement nor the final sentence in the Remuneration Section is uncertain or an agreement to agree.
Rectification
Was there the common intention alleged?
Paragraphs 11A to 11E of the TFASC assert a claim for rectification based upon an asserted ‘common intention’ that Mr Voci was intended to be a party to the 14 November 2014 agreement and, in particular, to the final sentence in the Remuneration Section. The relief sought is that the MPD Agreement be rectified to add Mr Voci as a party.
As an element of the common intention, Ms Troiano pleads that when she signed the 14 November 2014 agreement she believed it recorded the common intention alleged. Further, that at the time of execution of the 14 November 2014 agreement, Mr Voci and PSCA knew that she held that belief.
The central component of the common intention alleged is that Mr Voci was himself to be bound personally to a joint venture with Ms Troiano. An analysis of the communications between Ms Troiano and Mr Voci in the period up to and including 14 November 2014 as earlier discussed does not support the existence of the common intention alleged. The evidence does not support a finding of fact as alleged at paragraph 11C of the TFASC, that when Ms Troiano signed the 14 November 2014 agreement she believed it recorded the common intention alleged. There is no evidence that Mr Voci knew or believed that Ms Troiano held such a belief. To the extent Ms Troiano gave evidence in support of such a belief, I do not accept that evidence.
When the case was opened for Ms Troiano the Court was informed that Mr Rapita would give evidence of discussions between Mr Voci and Ms Troiano for which he was present, during which Ms Troiano spoke of her share in the Bindts Road project and Mr Voci did not demur. Shortly before the eighth day of the trial the Court was informed that Mr Rapita would not be called. No explanation was provided for the failure to call Mr Rapita from whom two witness statements had been filed.
I have made detailed factual findings as to the matters relied on by Ms Troiano in support of the common intention alleged. As will be apparent from those findings, Ms Troiano has failed to discharge the burden of proof required to support a finding that she and Mr Voci shared the common intention alleged. She failed to do so on the basis of the documents brought into existence and the communications that took place up to and including on 14 November 2014. The same is the case with later documents and communications. Ms Troiano’s own evidence also failed to prove the common intention alleged. The inference to be drawn from the failure to call Mr Rapita is that if called, Mr Rapita’s evidence would not have assisted Ms Troiano’s case.[208]
[208]Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
Is Ms Troiano entitled to rectification?
The rectification for which Ms Troiano contends, whether that be to add Mr Voci as a party to the 14 November 2014 agreement or, perhaps, in the alternative, to rectify the agreement so that the final sentence in the Remuneration Section constitutes a separate agreement between Ms Troiano and Mr Voci personally, fails.
There are two reasons why the claim for rectification fails. First, because the common intention alleged, a necessary precondition to rectification, was not proved on the balance of probabilities. Second, because on a proper construction of the final sentence of the Remuneration Section, that sentence does not constitute an agreement to undertake property development. The subject matter of the ‘exception’ with which the final sentence is concerned is the provision of services by PSCA to others, including Mr Voci and entities related to him, who may engage in property development. That subject matter and that construction is inconsistent with the rectification claim contended for.
Even if it were otherwise appropriate to add Mr Voci as a party, whether to the 14 November 2014 agreement as a whole, or to the final sentence in the Remuneration Section, and it is not, adding him would not result in an agreement to undertake property development. It would not result in an agreement for Ms Troiano to have a 25% equity and profit share in any such development.
If Ms Troiano is otherwise entitled to rectification, is that not the case by reason of the matters relied on in the Defence?
As Ms Troiano has no entitlement to rectification, it is unnecessary to answer this question.
Bindts Road
As there was no ‘MPD Agreement’ as defined in the TFASC, it cannot be the case that the entry by Dual Occ into heads of agreement to purchase land at Bindts Road was ‘pursuant to the MPD Agreement’.
For the same reason, the incorporation and entry into contracts to purchase the Bindts Road land by the Voci companies who contracted to do so was not ‘pursuant to the MPD Agreement’.
There was no other agreement that meant that the entry by Dual Occ into the heads of agreement, or the entry by the Voci companies into contracts to purchase the Bindts Road land, was for the benefit of Ms Troiano as to 25% equity and profit.
I find that Bindts Road ’eventuated’ within the meaning of the 14 November 2014 agreement when contracts were entered into by the Voci companies for the purchase of the parcels of land that ultimately comprised Bindts Road. Because the contracts were entered into at different times, I find that the project ’eventuated’ in respect of each separate parcel at the point in time at which those separate contracts were entered into. That is, in respect of the land at 130–150 Bindts Road, on 27 July 2015 and in respect of the land at 40, 60, 90 and 100 Bindts Road, on 7 May 2016.
Whilst Bindts Road ‘eventuated’, the consequence of that occurring was not to give Ms Troiano a 25% equity and profit share in the underlying project, in the rights held by the Voci companies relating to Bindts Road, or an entitlement to 25% of either the issued shares in, or profits of, those companies.
I find that Ms Troiano has no contractual entitlement to an equity or profit share in Bindts Road.
Ms Troiano does not and did not hold a 25% beneficial interest in Bindts Road. There was no agreement that she should do so and no fiduciary or other obligation existed that might otherwise have given her an entitlement to a beneficial interest in Bindts Road.
As Ms Troiano does not and did not hold the interest alleged, it is unnecessary to make any findings as to what would have been her profit entitlement relating to that project.
Donnybrook
I find that Donnybrook was a ‘particularly large Major Project’. It consisted of broad-acre land of 40.47 hectares within the Urban Growth Boundary, being land of sufficient size to accommodate over 400 residential lots. Although smaller than the entirety of Bindts Road, it was far larger than any other project that had ever been undertaken by Mr Voci or by the MPD. Mr Voci accepted in cross examination that it was a ‘particularly large Major Project’ and that he understood that to be so at the time.[209]
[209]TS, 1480.
I accept that Donnybrook ‘eventuated’ within the meaning of the 14 November 2014 agreement.
As there was no ‘MPD Agreement’, it is not the case that the entry by Mr Voci into the Donnybrook contract, or the nomination of 1285 Donnybrook Road as purchaser by him, was ‘pursuant to the MPD Agreement’. The same is the case pursuant to the 14 November 2014 agreement. It was no part of that agreement that Ms Troiano would have any personal interest in Bindts Road or in any other ‘particularly large Major Project’, including Donnybrook.
I find that Ms Troiano does not have a contractual entitlement to equity and profit share in Donnybrook.
Ms Troiano does not, and did not hold, a 25% beneficial interest in Donnybrook. That is the case because there was never any agreement that she should do so. No fiduciary or other obligation existed that might have otherwise given her an entitlement to a beneficial interest in Donnybrook.
As Ms Troiano does not and did not hold the interest alleged, it is unnecessary to make any finding as to what would have been her profit entitlement relating to that project.
Other Major Projects
For the reasons discussed at paragraphs 399 – 403, each of the following projects, in addition to Bindts Road and Donnybrook, were ‘Major Projects’ for the purposes of the 14 November 2014 agreement:
(a)2 Craig Street, Keilor – 22 lots;
(b)57 - 63 Bailey Street, Belmont – 22 lots;
(c)8 Hunter Street, Richmond – 2 luxury townhouses;
(d)15 Yarra Street, Richmond – 4 luxury townhouses;
(e)278 Burwood Highway, Burwood – 16 units;
(f)105 Harvest Home Road, Epping – 16 lots;
(g)4 Gardner Street, Richmond – 2 luxury apartments;
(h)18 Craig Street, Keilor – 22 lots.
As was submitted by Ms Troiano, 15 Yarra Street, Richmond, 8 Hunter Street, Richmond and 4 Gardner Street, Richmond, were Major Projects, not because of their size, but because they were managed by Ms Troiano in the MPD. The other five projects upon which Ms Troiano relied as constituting Major Projects, apart from Bindts Road and Donnybrook, were Major Projects both because they were managed by Ms Troiano and by reason of their size and/or the amount of revenue generated in SOW fees.
I find that there is no OMP Trust; it is accordingly unnecessary to answer the questions relating to the OMP Trust.
The Variation Agreement and Related Estoppel Questions
Was the Variation Agreement made as alleged?
For the reasons discussed at paragraphs 582 – 611, there was no Variation Agreement as alleged by the defendants.
The estoppel claims made by the defendants concerning the events of and following 9 September 2015, whether in reliance on estoppel by convention or promissory estoppel, fail. No estoppel as alleged arises.
It is not correct that after 9 September 2015 Mr Voci, PSCA and Ms Troiano conducted themselves on the basis of an underlying assumption that the Variation Agreement as alleged was made between them on or about 9 September 2015.
There was nothing in the evidence concerning the period between September and July 2016 to support a finding that in that period the parties acted on the assumed basis alleged.
If the parties were proceeding on the common assumed basis alleged it could have been expected that immediately after Mr Raniolo took up his position of employment in November 2015, that Ms Troiano would have been provided with a new contract of employment and steps would have been taken to reduce her remuneration. The fact that Mr Raniolo lasted only two weeks does not explain the failure on the part of PSCA and Mr Voci to take either of those steps. That is what one would objectively have expected if the common assumption alleged was held. Instead, as Mr Voci agreed, he left Ms Troiano ‘in charge’ of the Bindts Road and Donnybrook projects for ten months after Mr Raniolo was dismissed.[210] To do so and to take no steps until August 2016 to replace Mr Raniolo is inconsistent with the assumption alleged.
[210]TS, 1674-75.
Two key matters relied on in the particulars to the estoppel by convention plea are the email exchange of 15 and 16 July 2016 when Ms Troiano requested a ‘’small’ finders fee of only: $7K???’ and the sending by PSCA to Ms Troiano on 18 July 2016 a proposed new contract. That new contract was proposed to be effective from 1 July 2016 and is alleged to have reflected the terms and substance of the Variation Agreement.

The 15 and 16 July 2016 email exchange in which Ms Troiano sought a ’finders fee’ provides no support for a finding there was the common assumption of fact and law alleged. The email exchange discussed at paragraphs 689 – 698 included Ms Troiano complaining that her percentage share as provided for in her existing agreement had not been honoured.
The proffering by PSCA of a new contract of employment to Ms Troiano on 18 July 2016 with effect from 1 July 2016 is not consistent with the Variation Agreement. The Variation Agreement alleged that PSCA would continue to employ Ms Troiano at her existing salary for only such time as until a replacement ’Senior Development Manager’ would be appointed and commence in the employ of PSCA whereupon her salary would be reduced following renegotiation. On 18 July 2016 when the new contract was proffered, Mr Raniolo was no longer employed and Mr Philips had not yet been employed. Leaving to one side that Mr Raniolo was not employed as a ’Senior Development Manager’ but was employed in a different role, the trigger event alleged to cause Ms Troiano’s salary to be reduced pursuant to the Variation Agreement had not occurred. Assuming the parties were proceeding on the basis of the Variation Agreement, there was no basis for a reduction in Ms Troiano’s salary because no new person had commenced employment.
The alleged promissory estoppel claim also fails. The particulars in support of this claim include reliance on three conversations between Mr Voci and Ms Troiano on 9 September 2015. It is alleged that in those conversations Ms Troiano represented and agreed to the Variation Agreement, thanked Mr Voci for not dismissing her and accepted PSCA’s offer to continue her employment with PSCA. As I have earlier found, there was no such discussion. Mr Voci’s account of the 9 September 2015 meeting is not credible. No promissory estoppel arises.
Breach/Repudiation
Breach of contract alleged by Ms Troiano
Breach of the MPD Agreement is alleged at paragraph 79 of the TFSAC. The breaches alleged include that PSCA and/or Mr Voci took steps to defeat Ms Troiano’s right to a 25% equity and profit share in Bindts Road and Donnybrook, that Mr Voci and PSCA failed to take steps to transfer 25% of the issued shares in the third to eighth defendants and 1285 Donnybrook to her, and that PSCA and Mr Voci failed to take steps to cause the Voci companies to distribute 25% of the Dahua sale proceeds to her.
There was no MPD Agreement. The 14 November 2014 agreement contained no obligation to do any of those things. There was no breach by PSCA or for that matter, by Mr Voci, as alleged at paragraph 79 of the TFSAC.
Did Mr Voci induce breach of contract by PSCA?
The TFSAC alleges that if Mr Voci was not a party to the MPD Agreement, which is denied, and if PSCA alone breached that agreement then Mr Voci induced PSCA to do so. I have found both that there was no MPD Agreement and that, so far as the 14 November 2014 agreement is concerned, no breach of that agreement. As a result, the question of whether or not Mr Voci induced breach of that agreement does not arise.
Breach of contract alleged by the defendants
There are separate issues concerning alleged breaches by Ms Troiano of her employment obligations, but no counterclaim for breach of contract.
In support of the Variation Agreement of 9 September 2015 in paragraph 10C1 of the Defence, the defendants alleged poor performance by Ms Troiano prior to the meeting that day. The issues concerning Ms Troiano’s performance prior to September 2015 are discussed in the chronological sections of the reasons where such issues arise for consideration. The sections of the reasons in which those matters are discussed include paragraphs 229 – 254, and paragraphs 416 – 533. At paragraph 605, I made a finding that I did not accept that, as at 9 September 2015, Ms Troiano’s performance was unsatisfactory. I found there was no Variation Agreement. Even if there had been poor performance by Ms Troiano equating to breach of the terms of the 14 November 2014 agreement, before September 2015, the complaints concerning Ms Troiano’s performance lead nowhere.
In support of the promissory estoppel plea at paragraph 10C3(b) of the Defence the defendants assert unsatisfactory performance concerning Bindts Road, Bailey Street, 12 Craig Street, Harvest Home Road, Hunter Street, Gardner Street and Yarra Street. In essence, the same complaints made in respect of Ms Troiano’s performance, or lack of it, prior to 9 September 2015. I have found the promissory estoppel plea not to be made out. Again the complaints go nowhere.
As there is no claim against Ms Troiano for breach of her contract of employment, it is unnecessary to make any further findings concerning these issues.
Did PSCA and Mr Voci repudiate the MPD Agreement?
The matters relied upon by Ms Troiano to constitute wrongful repudiation by PSCA and Mr Voci are first the failure by PSCA to distribute any part of the proceeds of, or profits derived from, the other Major Projects to Ms Troiano; and second, conduct of PSCA and Mr Voci between July and September 2016 including telling Ms Troiano she would no longer be entitled to equity or profit share, that she would be demoted, her pay reduced, and put on an agreement permitting termination on one week’s notice.
While the wrongful repudiation allegations are cast by reference to the MPD Agreement, and I have found there was no such agreement, the claim for wrongful repudiation falls to be determined in light of the 14 November 2014 agreement.
I accept the submission on behalf of Ms Troiano that the actions of PSCA that began in July 2016 and continued throughout August 2016 with PSCA threatening to substantially reduce Ms Troiano’s remuneration – remuneration to which she was entitled in accordance with the 14 November 2014 agreement – and exerting pressure on her to sign a new contract of employment which represented a material reduction in the remuneration to which she was entitled, constituted repudiatory conduct engaged in by PSCA.
I accept the submission on behalf of Ms Troiano that up until at least 13 September 2016 she had taken no action in breach of the 14 November 2014 agreement or in breach of the duties owed by her to PSCA as her employer. She was willing to perform her part of the 14 November 2014 agreement. The same cannot be said on the part of PSCA who from 1 July 2016 manifested an intention not to honour its part of the 14 November 2014 agreement so far as Ms Troiano’s remuneration and her position as Senior Development Manager was concerned. The proposed new contract was an offer to continue to employ her on terms and conditions substantially less favourable than, and inconsistent with, PSCA’s existing obligations and in a reduced role, a demotion. As well as taking that action, at no time did PSCA pay or offer to pay Ms Troiano the remuneration to which she was already entitled under the 14 November 2014 agreement.
When the response on behalf of the defendants is considered in light of my finding that there was no Variation Agreement made on or about 9 September 2015, it is clear that the appropriate finding concerning repudiation is that PSCA repudiated the 14 November 2014 agreement.
I find that PSCA repudiated the 14 November 2014 agreement. Ms Troiano is entitled to damages for wrongful repudiation of that agreement. Had PSCA not wrongfully repudiated the agreement, Ms Troiano would have been entitled, on 15 November 2016, to 25% of equity and profit of the MPD; the eight other Major Projects, in addition to 25% of the PSCA profit referrable to Bindts Road and Donnybrook.
Did Ms Troiano repudiate the True Agreement?
The Defence alleges wrongful repudiation by Ms Troiano of the True Agreement. The conduct of Ms Troiano in the period July to September 2016 is relied on by the defendants as repudiatory conduct.
Although the substantive plea in paragraph 10E of the Defence refers to conduct in the period July to September 2016, three key matters are relied on in support of the repudiation allegation. First, that on 14 September 2016, confidential information was removed by Ms Troiano from PSCA’s business premises for her personal use including 11 emails sent by her by improper use of her PSCA email account to her personal email account. Second, she failed to attend work on 15 September 2016 and spent substantial periods of time from 19 July 2016 on personal telephone calls and sending SMS messages. Third, Ms Troiano’s attempt to instruct Vodafone to delete call details on her mobile phone.
The complaint about time spent on SMS messages and on the telephone is the only complaint that dates back to July 2016. It is not a complaint of substance. Ms Troiano’s obligation was to work 40 hours per week as ‘ordinary hours’ and to work such additional hours as necessary to perform her duties, or as required by PSCA. The complaint is not directed to failure to work those hours. No specific clause of the 14 November 2014 agreement as identified as having been breached. The related complaint of failure to attend work on 15 September 2016 is also without substance. Clause 12 of the 14 November 2014 agreement entitled Ms Troiano to take eight days personal leave per year, which may be taken as sick leave. No breach of the 14 November 2014 agreement is identified.
The removal of confidential information, including the 11 emails, is not alleged to have been in breach of any specific term of the 14 November 2014 agreement. The same is the case concerning the interaction with Vodafone.
Whether taken individually or in combination, none of the matters identified as ‘misconduct’ in the 15 September 2016 letter from PSCA, amount to repudiatory conduct on the part of Ms Troiano. The 14 November 2014 agreement provided for termination for unsatisfactory performance or for serious misconduct. No such allegation was made in the Defence and no action was taken in reliance on conduct said to fall within either ground for termination.
The events of which the defendants complain occurred after, and in the context of, the repudiatory conduct on the part of PSCA which commenced with the provision of the draft contract of employment on 18 July 2016, and continued until Ms Troiano resigned her employment. No serious breach of Ms Troiano’s employment obligations has been shown. While Ms Troiano had no right to email company information to her personal account, no use was made of it. The actions taken by Ms Troiano from around early September 2016 do not amount to a serious breach of contract by an employee.
Ms Troiano’s resignation constituted an acceptance by her of PSCA’s repudiation of the 14 November 2014 agreement.
The submission by the defendants that by repudiating the agreement, Troiano is not entitled to any profit or equity share of any project fails in light of my finding that the party who repudiated the 14 November 2014 agreement was PSCA.
Fiduciary Duties
Did Mr Voci and/or the Voci companies owe Ms Troiano fiduciary duties?
For the reasons discussed at paragraphs 763 – 772, the answer this question is ’no’.
Did Mr Voci and/or the Voci companies or any of them, breach fiduciary duties?
This question is not applicable.
Did Mr Voci and PSCA assist the third to eighth defendants to knowingly breach the Bindts Road Trust?
As no fiduciary duty is owed, this question does not arise.
Is Ms Troiano entitled to succeed in her claims for breach of trust and knowing receipt concerning the Bindts Road project?
Because no fiduciary duty is owed, the answer this question is ‘no’.
Is Ms Troiano entitled to succeed in her claim for breach of fiduciary duty in respect of the Donnybrook project?
Because no fiduciary duty is owed, the answer this question is ‘no’.
If there has been breach of fiduciary duty, is Mrs Troiano entitled to equitable compensation or declaratory relief?
This question does not arise.
Is Ms Troiano entitled to a declaration that the third to ninth and the eleventh defendants hold her interest on constructive trust or are they liable to account to her?
Because no fiduciary duty is owed, the answer this question is ‘no’.
If breach of fiduciary duty is otherwise established, is Ms Troiano precluded or disentitled from seeking equitable relief?
This question does not arise.
Representations
Did PSCA and Mr Voci make the representations alleged to Ms Troiano?
The Representations Ms Troiano alleges were made, as set out above at paragraph 155 above, are representations that:
(a)Ms Troiano would receive 10% equity and 10% profit share of PSCA Major Projects commenced by the MPD after 12 months from the commencement date of the MPD Agreement and a further 15% equity and profit share on and from the 24^th month (15 November 2016); and
(b)if Ms Troiano and Mr Voci secured particularly large major projects, such as Bindts Road, she would receive 25% equity in that project and a 25% share of its profit.
There is no contest in relation to the Representation referred to in (a) above. It is embodied in the Remuneration Schedule to the 14 November 2014 agreement. That is not so concerning the representation referred to in (b).
In view of the factual finding at paragraph 264 and the facts concerning the period between 14 August 2014 and 29 October 2014 discussed at paragraphs 184 – 264 it is not the case that Mr Voci or PSCA made the Representations alleged in August 2014.
It is also the case that the 14 June 2015 email exchange, discussed at paragraphs 437 – 439, did not contain a representation that Ms Troiano would receive 25% equity or 25% share of underlying project profit. The email did not make or contain a representation in the terms of or to the effect alleged. There was no Representation made by Mr Voci to the effect alleged in (b).
As to 9 September 2015 and Ms Troiano’s email sent at 12:05pm that day, that email made no reference to 25% equity and profit share in Bindts Road. As a result, contrary to the Representation allegation, there was no equity and profit share Representation to dispute.
With the exception of the first Representation alleged which was embodied in the 14 November 2014 agreement, the Representations alleged were not made. Having regard to those factual findings it is unnecessary to consider the principles that would otherwise have applied to the estoppel claim made at paragraphs 66 – 72 of the TFASC.
The remaining questions concerning the Representations identified above do not arise.
Ms Troiano’s misleading and deceptive conduct claim

The misleading and deceptive conduct claim made by Ms Troiano relying upon s 18 of the ACL relies upon the same Representations relied on by Ms Troiano in support of her estoppel claim.

As I have found that the Representations alleged were not made, the claim for misleading and deceptive conduct within the meaning of s 18 of the ACL fails.

Corporations Act

Ms Troiano is not and at no relevant time was she a member or entitled to be a member of any of the Voci companies. As she did not hold any shares in any of the Voci companies and had no entitlement to receive or to be allocated shares in any of those companies. I accept the defendants submission that she has no standing to seek relief against the corporate defendants or any of them under s 232 or s 233 of the Act.
Relief
Ms Troiano is entitled to damages for the wrongful repudiation by PSCA of the 14 November 2014 agreement.
On the proper construction of that agreement, her entitlement is to damages representing 25% equity in and profit share of PSCA Major Projects relating to Bindts Road, Donnybrook and the eight other Major Projects.
There was no evidence as to the value of 25% equity in the MPD of PSCA. I have previously made findings concerning the profit derived by the MPD of PSCA referrable to those projects, at paragraphs 853 – 858 above. The profit derived by PSCA is, in the case of Bindts Road: $2,679,338; in the case of Donnybrook: $270,258; and in the case of the other Major Projects: $1,103,387; for a total of $4,052,983. 25% of $4,052,983 is $1,013,245.75. Accordingly, Ms Troiano is entitled to an award of damages against PSCA in the sum of $1,013,245.75.
Disposition
I will order that there be judgment for Ms Troiano against PSCA in the sum of $1,013,245.75 together with interest pursuant to statute.
Otherwise, the proceeding stands dismissed.
I direct the solicitors for Ms Troiano to provide a draft form of order to my chambers, including specifying the appropriate allowance for interest pursuant to the Supreme Court Act 1986 (Vic) giving effect to this finding by 4:00pm on 4 February 2022.
The parties should file and serve submissions as to costs and, if the interest calculation is not agreed, as to interest by 4:00pm on 18 February 2022. Those submissions shall be limited to no more than six pages.

[2021] VSC 851

17 December 2021