Wade v Angsea Investments Pty Ltd

[1997] QCA 57

IN THE COURT OF APPEAL	[1997] QCA 057
SUPREME COURT OF QUEENSLAND
Brisbane
Before McPherson JA Davies JA White J

Appeal No 327 of 1996

[Wade v. Angsea Investments P/L]

BETWEEN:

STANLEY THOMAS WADE

(Fourth Defendant) Appellant

AND:

ANGSEA INVESTMENTS PTY LTD ACN 010 538 977

(Plaintiff) Respondent

Appeal No 344 of 1996

[Gauci & Ors v. Angsea Investments P/L & Anor]

BETWEEN:

GEORGE GAUCI

(First Defendant) First Appellant

AND:

JENNIFER LYN FOX

(Second Defendant) Second Appellant

AND:

RINCONO PTY LTD ACN 010 739 581

(Third Defendant) Third Appellant

AND:

ANGSEA INVESTMENTS PTY LTD ACN 010 538 977

(Plaintiff) First Respondent

AND:

STANLEY THOMAS WADE

(Fourth Defendant) Second Respondent

McPherson JA
Davies JA

White J

Judgment delivered 21 March 1997

Separate reasons for judgment of each member of the Court each concurring as to the orders made.

APPEALS DISMISSED WITH COSTS
STRIKE OUT THE APPEAL (344/96) BY THE THIRD APPELLANT.
SET ASIDE THE JUDGMENT GIVEN AGAINST THE THIRD APPELLANT ON

19 DECEMBER 1995.

CATCHWORDS:	FRAUD - assessment of credibility of witnesses - acceptance of certain expert evidence in assessing damages.
Counsel:	Mr PJ McHugh for the appellant Wade and second respondent Wade
Mr D Jackson QC for the respondent Angsea Investments Pty Ltd and the first respondent Angsea Investments Pty Ltd
First appellant Gauci appeared on his own behalf and for the second appellant Fox
No appearance for the third appellant Rincono Pty Ltd
Solicitors:	Primrose Couper Cronin Rudkin for the appellant Wade and second respondent Wade
Barker Gosling for the respondent Angsea Investments Pty Ltd and the first respondent Angsea Investments Pty Ltd
First appellant Gauci appeared on his own behalf and for the second appellant Fox
No appearance for the third appellant Rincono Pty Ltd

Hearing Date: 29	November	1996
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND

Appeal No. 327 of 1996

Brisbane

Before McPherson J.A.
Davies J.A.
White J.

[Wade v. Angsea Investments P/L]

BETWEEN:

STANLEY THOMAS WADE

(Fourth Defendant) Appellant

AND:

ANGSEA INVESTMENTS PTY. LTD. ACN 010 538 977

(Plaintiff) Respondent

Appeal No. 344 of 1996

[Gauci & Ors. v. Angsea Investments P/L & Anor.]

BETWEEN:

GEORGE GAUCI

(First Defendant) First Appellant

AND:

JENNIFER LYN FOX Second Appellant

(Second Defendant)

AND:

RINCONO PTY. LTD. ACN 010 739 581

(Third Defendant) Third Appellant

AND:

ANGSEA INVESTMENTS PTY. LTD. ACN 010 538 977

(Plaintiff) First Respondent

AND:

STANLEY THOMAS WADE

(Fourth Defendant) Second Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 21 March 1997

This is an appeal that requires for its success the displacement of a finding or findings as to

credibility that were made by the trial judge in plain and unmistakable terms. An appellant who sets out

to upset such a finding undertakes a heavy burden. In this instance the task is made even heavier by the

fact that, in order to succeed, it is necessary for the appellants to show not only that the judge was

wrong in accepting the evidence of Mr Kenny on behalf of the plaintiff, but that he ought not to have

rejected the evidence of Gauci and Wade.

Having regard among other matters to the tenor of the documentary evidence, that may be

thought to represent an impossible task. Indeed, if the learned judge had reached the opposite

conclusion, it might well have been one of those rare instances in which this Court would have been

justified in interfering with credibility findings on appeal. For the detailed reasons given by White J., with

which I agree, each of the appeals must be dismissed with costs.

The third appellant Rincono Pty. Ltd. was dissolved on 28 August 1995, which was some

three to four months before the formal judgment was entered against it on 19 December 1995, and in

fact not long after the trial ended and the decision was reserved by the trial judge on 10 August 1995.

His Honour was not, before giving his judgment, informed of the dissolution of the third appellant.

In Lazard Brothers & Co. v. Midland Bank Limited [1933] A.C. 289, a judgment against

a company that had ceased to exist was held to be a nullity. See also United Service Insurance Co.

Ltd. v. Lang (1935) 35 S.R. (N.S.W.) 487, 497. An appeal on behalf of a non-existent company is

clearly incompetent. In Deutsche Bank v. Banque des Marchands de Moscou (1932) 158 L.T. 364,

367, the English Court of Appeal held that, once it appeared that the company had ceased to exist, the

Court had an inherent jurisdiction to strike out an appeal by it and that the judgment appealed from was

“coram non judice and a nullity”.

That jurisdiction should be exercised here by striking out the third appellant’s appeal dated 10

January 1996. In the Deutsche Bank case, counsel for the plaintiff, which had succeeded in obtaining

judgment below, submitted that the result of the court’s finding that the defendant was non-existent “was

that there was no appeal but that they were entitled to hold their judgment ...” (158 L.T. 364, 367).

The report in the Law Times records that the Court of Appeal “negatived this contention”. The parallel

report of the case in the Law Journal Reports (107 L.J.K.B. 386) is in identical terms. Both record

that the action was struck out, which necessarily implies that the judgment was also set aside. Striking

out the action is inappropriate here because the third appellant was in existence when the action was

commenced; but in my opinion the judgment given against Rincono Pty. Ltd. should be set aside by this

Court as a nullity.

We were not asked to consider the incidence of costs arising from the appeal by the third

appellant. It appears to have been the first appellant Gauci who set in motion the appeal by the third

appellant. Once it ceased to exist, he had no authority to act on its behalf or in its name. According

to all we know about the matter, there does not appear to be the slightest prospect that he will be in a

position to meet those costs if they are ordered against him.

I agree that appeal numbered App. No. 327 of 1996 by the appellant Wade, and App. no. 344

of 1996 by the first appellant Gauci and the second appellant Fox, should be dismissed with costs. I

would strike out the appeal of Rincono Pty. Ltd. on App. no. 344 of 1996 and set aside the judgment

given against that company on 19 December 1995.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before McPherson J.A.
Davies J.A.
White J.

Appeal No. 327 of 1996

[Wade v. Angsea Investments P/L]

BETWEEN:

STANLEY THOMAS WADE

(Fourth Defendant) Appellant

AND:

ANGSEA INVESTMENTS PTY. LTD. ACN 010 538 977

(Plaintiff) Respondent

Appeal No. 344 of 1996

[Gauci & Ors. v. Angsea Investments P/L & Anor.]

BETWEEN:

GEORGE GAUCI

(First Defendant) First Appellant

AND:

JENNIFER LYN FOX

(Second Defendant) Second Appellant

AND:

RINCONO PTY. LTD. ACN 010 739 581

(Third Defendant) Third Appellant

AND:

ANGSEA INVESTMENTS PTY. LTD. ACN 010 538 977

(Plaintiff) First Respondent

AND:

STANLEY THOMAS WADE

(Fourth Defendant) Second Respondent

REASONS FOR JUDGMENT - DAVIES J.A.

Judgment delivered 21 March 1997

In my opinion the appeals by Wade, Gauci and Fox should be dismissed substantially for the

reasons given by White J. As appears from her Honour's reasons Rincono Pty. Ltd. appears to have

been dissolved on 28 August 1995 before judgment in this action was given. As the appeal by it is

therefore incompetent it should be struck out and the judgment against it set aside.

The respondent should have its costs of the appeals.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Before McPherson JA
Davies JA
White J

Appeal No 327 of 1996

[Wade v. Angsea Investments P/L]

BETWEEN:

STANLEY THOMAS WADE

(Fourth Defendant) Appellant

AND:

ANGSEA INVESTMENTS PTY LTD ACN 010 538 977

(Plaintiff) Respondent

Appeal No 344 of 1996

[Gauci & Ors v. Angsea Investments P/L & Anor]

BETWEEN:

GEORGE GAUCI

(First Defendant) First Appellant

AND:

JENNIFER LYN FOX

(Second Defendant) Second Appellant

AND:

RINCONO PTY LTD ACN 010 739 581

(Third Defendant) Third Appellant

AND:

ANGSEA INVESTMENTS PTY LTD ACN 010 538 977

(Plaintiff) First Respondent

AND:

STANLEY THOMAS WADE

(Fourth Defendant) Second Respondent

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 21March 1997

These are two appeals arising out of a judgment given in the Trial Division which have been

heard together. George Gauci and Jennifer Fox were the first and second defendants to an action by

the respondent, Angsea Investments Pty Ltd. Rincono Pty Ltd, a company associated with them was

third defendant. It was dissolved on 28 August 1995 but that was not made known to the court or, it

seems known by the parties when the orders below were made. Stanley Thomas Wade was the fourth

defendant and a counter-claimant in the action. Gauci and Fox are the appellants in Appeal No 344

and Wade in Appeal No 327 of 1996 against findings and orders made in favour of Angsea.

Although the grounds of appeal, particularly by Wade, are numerous attack upon the judgment

below is essentially upon findings of credit made by the learned trial judge and his acceptance of certain

expert evidence in assessing damages. It was conceded by Mr McHugh for Wade that there was

evidence to support the learned trial judge's findings against Wade on credibility issues. Mr Gauci who

appeared for himself and Ms Fox made no such concession but there was evidence against him upon

which the learned trial judge was entitled to find that he was not a credible witness. The argument

advanced by Mr McHugh was that his Honour failed to make findings of credit adverse to one Kenny,

the controller of Angsea, when, he submitted, there was clear evidence to demonstrate that Kenny and

others in his employ were parties with Gauci to a conspiracy to defraud the financiers to a development

project carried out by Angsea. Had he done so, it was submitted, that would have flowed into the other

findings of credit and left Angsea unable to discharge its burden of proof. Mr Gauci joined in submitting

that adverse findings ought to have been made against Kenny but not himself and Ms Fox. Mr McHugh

conceded the difficult task which he faced in seeking to set aside findings based on the credibility of
witnesses: Devries v. Australian National Railways Commission (1992-1993) 177 CLR 472.

The trial essentially concerned allegations of fraud by Angsea against the appellants arising out

of the delivery of fill to a development project at the Gold Coast. Angsea, through its managing director

and agent John Kenny, orally agreed with Gauci as agent for Rincono in about February 1988 that the

two companies would enter into a joint venture for the development of residential units at Labrador.

In return for the provision of $150,000 capital for the project Rincono was to acquire half of the share

capital in Angsea and thereafter the companies were to contribute equal amounts to the joint venture.

Angsea appointed Gauci as the builder and manager of the project including the management of the

earthworks at the site. A considerable amount of fill had to be placed on the development land before

building could proceed. Gauci as manager contracted with Wade to deliver the necessary fill to the site.

Wade maintained at trial that he did not know of Angsea initially and thought that he was contracting

with Gauci as principal. His Honour found that relatively early Wade learnt of the company's existence.

Wade maintained that he believed it was Gauci's company until the end of his contractual relationship

with Angsea in June 1989. That belief will be considered to the extent that it is necessary to do so

below.

The first delivery of fill was made on 18 November 1988 and the last on 16 June 1989. The

project was funded by Elders Lensworth Finance Group Ltd which would pay on invoices certified, in

the case of the fill, by a member of the staff of Herron Todd White, valuers. Fox had married Gauci

by the time of the trial. She was a director of Rincono and ostensibly the guiding mind of the company.

As his Honour found, this arrangement was no doubt made because Gauci was then an undischarged

bankrupt. Fox did certain clerical work for the project. She was an authorised signatory with respect

to Angsea cheques. Although his Honour may have overstated the extent of the work she did for Angsea and the amount of time she spent in the Angsea office, that had no impact on any aspect of his

decision. Rincono received $6,000 per month from Angsea in respect of the services provided to the

project by Fox and Gauci.

There were three alleged frauds which concerned the trial

•	A "secret commission" of $1 per cubic metre of fill paid to Gauci out of the price paid
by Angsea to Wade with Wade's concurrence;
•	Four false invoices for fill, the first three prepared by Gauci, in the last of which Wade
participated and which were presented to Elders by Angsea and upon which it obtained
funds;
•	Under-delivery of fill by Wade to the site charged to and paid for by Angsea as per
overstated invoices.

The terms of the agreement between Angsea and Wade concerning the supply of fill were the

subject of considerable investigation at the trial. The learned trial judge subjected the evidence to

detailed analysis and concluded generally against certain amendments to the agreement contended for

by Wade and by Gauci. This finding is said to be against the evidence and the weight of evidence but

no contrary evidence is advanced. It is encompassed under the more general ground of challenge on

the credibility issue and it is unnecessary in this appeal to say anything more about the terms of the

agreement. Indeed this is true in respect of many of the other grounds of appeal and it is unnecessary

to address them particularly.

His Honour found that Gauci acted fraudulently and in breach of his fiduciary duty to Angsea

in agreeing with Wade to a more than reasonable price for the fill and by keeping $1 out of the amount

invoiced by Wade for each cubic metre of fill delivered to the site. Gauci had maintained that Wade had arranged for Gauci (Angsea) to retain that $1 to keep access roads open and watered into the site.

He denied retaining any part of the money for himself. Wade maintained that the $1 was extracted

from him by implied threats of economic duress. His Honour rejected these explanations and his

analysis of the evidence as to why he should not have done so has not been demonstrated to be wrong

by reference to other contrary evidence. Gauci agreed with Wade to pay him in cash 50 cents for each

cubic metre of fill delivered to the site the balance to be paid by cheque. The price of the fill varied with

the source. The payment from Angsea to Wade was made by two cheques, one amount made up on

the basis of $1.50 per cubic metre which remained constant and the other for the balance of the price

per cubic metre depending on the source of the fill based on the invoices which in turn were based on

delivery dockets for each truckload. The cheques concerning the $1.50 per cubic metre were signed

by Fox, initially to cash and later by opening the "not negotiable" cheques to cash. In the case of the

last two cheques made out to Wade the evidence incontrovertibly established that they were delivered

to Wade and that Fox banked and cashed the $1.50 based cheque after it had been retrieved from

Wade by Gauci. Gauci returned to Wade and shortly after Fox was found to have approximately

$10,000 in her handbag which was some $2,000 short of an amount of $12,000 which would reflect

a payment of $1 per cubic metre on those cashed cheques. Gauci maintained that he had borrowed

$12,000 from Wade on this occasion, but Wade denied it. His Honour found that Fox was knowingly

concerned in the fraud on Angsea. As to Wade, his Honour found that he was a participant in this

fraudulent conduct by his invoicing Angsea for an amount per cubic metre which he knew included an

amount to be retained fraudulently by Gauci.

Kenny was extensively cross-examined at the trial with respect to alleged improper conduct including that he was actively involved in the frauds upon Elders in the presentation of the false invoices for fill. His Honour found that on the evidence Kenny was not a party to any dishonesty and accepted

him as a witness. Mr McHugh submitted that his Honour erred in declining to draw the inference that

Kenny was involved in the frauds on Elders by means of the false invoices and had he done so, the

inevitable conclusion must have been that Kenny was guilty of fraudulent conduct. In that circumstance,

it was submitted, his credit being impugned, it would not be safe to prefer his word to that of Gauci and

Wade and Angsea must fail in discharging its onus of proof. Further, the court would be slow to make

an order for damages in favour of such a person. Since these false invoices were not the subject of a

claim by Angsea against any of the defendants the matter was collateral to the issues in the trial. It was

thus unnecessary for any ultimate findings to be made about them.

The false invoices were prepared on Wade's business letterhead between January and May

1989 and presented to Elders for payment as progress claims. Elders paid the funds directly to

Angsea's account or applied some of the funds in payment of interest due by Angsea to Elders. There

was no direct evidence implicating Wade in the preparation of the first three invoices. The last invoice

was for $162,500 and was issued by Wade at the request of Gauci allegedly for the purpose of pre-

payment by Angsea to obtain some tax advantage. Wade said that he was told it was not used

ultimately, although in fact it was. His Honour made no specific finding as to whether Wade was telling

the truth about this considering, rightly with respect, that the fact that Wade admitted preparing the false

invoice with the express understanding that it was to be used to obtain finance by Angsea from Elders

to which it was not entitled was sufficient evidence of his implication in the fraud. Wade received no

money from any of the false invoices for which payment was received by Angsea from Elders. Gauci

was convicted in respect of these frauds on Elders.

Mr McHugh had sought to demonstrate below that at the times when the false invoices were
presented Angsea was in a financially precarious position and without the cash generated by those

invoices would have been unable to meet its obligations. Rincono had made no monetary contributions

to the project and this, at least in part, was said to be causing Angsea's financial embarrassment. This

Mr McHugh submitted was the motive for Kenny to participate in the frauds on Elders. He submitted

that he had the opportunity to do so being constantly in the office during the relevant periods. His initials

appeared on one of the false invoices. The learned trial judge accepted Kenny's evidence that he was

in the practice of initialling every document that he saw. Further, two of Angsea's employees gave

evidence that they had prepared the false invoices on Gauci's instructions but that Kenny was not

involved. Mr Gauci submitted that since those employees were still employed at the time of the trial by

Angsea that fact alone suggested that Kenny was implicated. To dispose of this shortly, a perusal of

their evidence suggests that the explanation given by Gauci to them for the presentation of invoices to

Elders without supporting delivery dockets was not implausible and thus no such inference needed to

be drawn and his Honour was entitled to accept their evidence.

There was nothing so compelling about the conjunction of motive and opportunity that this court

could find that his Honour plainly erred in concluding that Kenny was a truthful witness and nothing else

has been shown to connect him to the frauds on Elders. His Honour declined to embark on ultimate

findings about the fraud on Elders: Ready v. Brown 118 CLR 165. He recognised that it was collateral

and was significant only in that it affected the credit of witnesses. He concluded that the evidence in

respect of it reflected badly on the credit of Gauci and Wade but not on that of Kenny. There were

other collateral issues relating to Kenny's credit pursued in the cross-examination of Kenny which did

not touch upon the issues at all. His Honour declined to permit such matters to become contested

although he stated that there was "some doubt" about the role played by Kenny.

Gauci denied that he had received the benefit of the $1 per cubic metre of fill. As mentioned,

he had explained the money found in Fox's bag as a loan from Wade which Wade denied. Wade also

denied that he had ever retained the $1 of the $1.50 per cubic metre of the cash cheques. It became

necessary to identify where the $1 per cubic metre went. Gauci had been convicted of misappropriating

the total amount represented by the $1 per cubic metre but on appeal his conviction was quashed on

what might be characterised as a technical ground. The allegation in the charge was that the money was

the property of Angsea and this court held that there was an issue whether the money was the property

of Angsea or Wade. The objective evidence did not disclose in whose possession the $1 per cubic

metre money ultimately remained. The learned trial judge concluded that Angsea did not get it because

there was no other evidence to suggest that it did and he accepted that Kenny was a truthful witness.

Indeed, it was never put to Kenny in cross-examination that he or Angsea obtained the $1 per cubic

metre. There was also a body of evidence which clearly implicated the appellants in fraudulent conduct

which did not involve Kenny in any way. This included Fox opening the cheques to cash and the

conduct of the appellants in respect of the final cheque in June 1989. Accordingly, even had adverse

findings been made about Kenny there was still ample evidence upon which the adverse findings made

about Gauci and Wade could have been based.

His Honour dealt in detail with the many inconsistencies in Wade's out of court statements and

his efforts to deal with them in the witness box after making due allowance for his age and hearing

deficits and made findings adverse to Wade's credit. None of these matters involved Kenny nor were

alleged to do so. Gauci's evidence about the formation of the agreement for the delivery of fill was

similarly subjected to scrutiny by his Honour and found wanting and did not involve Kenny.

Wade had maintained that at all times until he first met Kenny at the police station in June 1989
he understood Gauci to be the principal of Angsea and this made acceptable the arrangements between

himself and Gauci. However he was aware that Gauci was an undischarged bankrupt and made no

enquiries with respect to the officers and shareholders of Angsea. He knew that Angsea was being

financed in the project. As his Honour noted, a belief that Gauci was the principal of Angsea could not

justify Wade's conduct in preparing the fourth false invoice which, at the time it was handed over, he

understood was likely to be used to obtain finance fraudulently. Mr Gauci maintained that Wade was

well aware that he Gauci was not the principal of Angsea.

Mr Gauci submitted that a good reason for implicating Kenny was that there was no benefit to

him in defrauding Elders with the false invoices as the money went directly to Angsea or to meet its

interest obligations. However, there can be no doubt that the continuation of the project had a direct

beneficial financial result for him and for Fox. For so long as the project continued Rincono would be

paid $6,000 per month for the services of Gauci and Fox to the project and, until the need for fill or the

arrangement with Wade came to an end Gauci received $1 per cubic metre of fill. Wade maintained

that he had only a one week exposure over non-payment for the supply of fill and that would not

necessitate the continuation of the project by him at all costs. However, the evidence as found by his

Honour, clearly established that the contract to supply the fill was a profitable one which was supported

by the particulars of Wade's counterclaim for damages for loss of profits on the termination of his

contract with Angsea. Wade had the further benefit of receiving 50 cents per cubic metre in cash for

which no satisfactory explanation was given. Mr Gauci said it was because Wade was given no bank

guarantee by Angsea. The cash was found hidden in a ship's container at Wade's truck yard. His

Honour was entitled to conclude that Wade had not intended to disclose the receipt of those moneys

which amounted to $116,000.

Mr Gauci submitted for Fox that there was no evidence, apart from her personal relationship

with him and that she was a signatory to the Angsea cheques, both of which he submitted were

insufficient, to connect her to the fraud. But her conduct in opening the crossed cheques to Wade to

cash, cashing the cheques, together with the possession of the cash in June was appropriately seen by

his Honour as indicating that she was knowingly concerned in the fraudulent conduct.

The findings of the learned trial judge depended substantially upon the credit of the witnesses.

As the authorities have clearly established these findings must stand unless an appellant can show that

the trial judge failed to use or has palpably misused his advantage, or has acted upon evidence which

was inconsistent with evidence incontrovertibly established by other evidence, or which was glaringly

improbable: Devries at p.479. Here no appellant has identified any error of principle or demonstrated

mistake or misapprehension about relevant facts on the part of the learned trial judge and accordingly

the grounds of appeal based upon the failure of his Honour to make findings against the credit of Kenny

must fail.

The other major ground of appeal is by Wade only and relates to the acceptance by the learned

trial judge of certain expert evidence called by Angsea to the effect that less fill than that docketed was

actually delivered to the site by Wade, in preference to the amounts set out in the delivery dockets and

reflected in the invoices on which Wade was paid by Angsea.

The total amount of the delivery dockets was for 241,350 cubic metres of fill. The dispute at

trial related only to the fill which came from a particular site identified as the Colgate site. There was

agreement between the parties as to the total quantity delivered from what was known as Wade's pit.

The deliveries from the Hymix pit were verified by weighbridge docket and were not disputed but were

an important aspect of Angsea's case.

According to the delivery dockets 195,883 cubic metres of fill were delivered to the

development site from the Colgate site. The experts called for Angsea, after making adjustments based

on evidence given by Wade's experts, concluded that at best for Wade 143,000 cubic metres were

delivered from the Colgate site to the Angsea site. In round figures that was 50,000 cubic metres less

than Wade had invoiced Angsea and was paid for. His Honour stated that he faced a practical difficulty

in determining with any precision the figure which ought to be adopted for the purpose of calculating the

damages. He concluded that he should be cautious bearing in mind that there were signed delivery

dockets although subject to the deficits which he had found in the system and there were a number of

"variables", referring here, no doubt, to the differing engineering and surveying approaches. His Honour

selected 25,000 cubic metres as the quantity of the short delivery by Wade in respect of which he

proposed to make an order for damages. This was said by Mr DJS Jackson QC for Angsea to be

arbitrary but was not the subject of complaint by Angsea on this appeal. It was, he submitted, an

approach which favoured the appellant.

Mr McHugh submitted that his Honour ought to have found evidence of the system of certified

delivery dockets was conclusive of the amount of fill delivered and ought to have been preferred to the

theoretical evidence of the experts called by Angsea. His Honour scrutinised the system of delivery

dockets against which the invoices from Wade were verified and found it so unsatisfactory as to make

it an unacceptable system for accurately reflecting the quantity of fill delivered. His Honour had heard

extensive evidence about the system for the verification of the delivery dockets. As mentioned, the

loads of fill delivered from the Hymix site were verified by a weighbridge docket. The Colgate fill was

not. The same trucks and drivers were used for both. His Honour noted that the weighbridge readings

from Hymix showed a significant variation in the quantity in each truckload of fill whereas the amounts set out on the Colgate dockets showed invariably a round figure usually for 10 or 11 cubic metres. That

was sought to be explained by Wade on the basis of significant differences between the fill from Hymix

and that from Colgate - the former being large rock, it was said, and the latter being more plastic and

that the method of loading the trucks was different in each case. There was evidence which his Honour

was entitled to accept that the method of loading at each site was the same. The evidence about the

nature of the fill from each site to account for the different volumes carried in the trucks was far from

conclusive and his Honour was entitled not to accept that proposition as an adequate explanation for

the differences. His Honour heard evidence from a number of the truck drivers which was not

consistent.

His Honour considered the system in place for checking the delivery dockets at the Angsea site.

Each driver made a number of trips each day and each load was recorded on the day's docket for that

truck. The delivery of each load was confirmed by the signature of an Angsea employee. The evidence

revealed that on some occasions a number of loads were signed for on the one occasion sometimes at

the end of a day. His Honour found that there was no system implemented at the Angsea site wherein

one employee was dedicated to monitoring and signing for the fill in respect of each truckload as it was

delivered to the site. One of the expert engineers for Wade, Kavanaugh McAnany said that for such

a system to operate successfully there must be a full time clerk of works monitoring and signing for the

fill as it was delivered to site. The system, such as it was, had been implemented by Gauci. The task

of checking the dockets was carried out by one Costopoulos, the manager of the site under Gauci. His

Honour was entitled to accept evidence that Mr Costopoulos did not check every truck, that some

truck dockets bore the initials of others and that he was not necessarily on the site all the time. Mr

Costopoulos' evidence was that he had recommended to Gauci that he obtain a mobile weighbridge to eliminate the problems of monitoring the delivery of the fill. This did not occur. It was suggested on

behalf of Wade that it was a matter for Angsea to organise an efficient system to check the deliveries

but this can be no answer to a claim for under-delivery in the absence of any contractual term to the

contrary.

Mr McHugh made something of the fact that the engineer certifying the quantities of fill was not

called by Angsea as a witness. His Honour noted that the engineer would not sight the relevant invoice

and dockets until the Wednesday or Thursday of the week following the deliveries and by then some

thousands of cubic metres of fill would have been delivered subsequently to the site. His Honour found

that it would have been impossible to verify visually the quantity of the deliveries under certification with

any degree of accuracy. Nothing has been demonstrated to show that he was wrong to draw that

conclusion. His Honour recognised the failure to call the certifying engineer as a factor to be taken into

account in assessing Angsea's case against Wade based on the inconclusiveness of the dockets. His

Honour had formed unfavourable views of Gauci's and Wade's honesty. They both stood to gain

financially from a lax system of supervision. There was evidence upon which his Honour could conclude

that the dockets were not conclusive of the quantity of fill delivered.

His Honour then had a body of expert evidence on both sides in which an estimation was made

as to the amount of fill delivered from the Colgate site to the Angsea site. After Kenny had terminated

Wade's contract in June 1989 surveys were carried out to assess the volume of fill actually delivered

to the Angsea site. Those engineers and surveyors together with other experts gave evidence in

Angsea's case. His Honour found that the engineers and surveyors who had visited the site in mid 1989

had a distinct advantage over the experts called for Wade in that they were familiar with the sites in

question prior to the termination of the contract with Wade and immediately following. Wade's experts
examined the site many years later.

His Honour received a great deal of engineering and surveying evidence, including reports,

contour maps and plans. He favoured the evidence given by Angsea's experts over the body of

evidence called on behalf of Wade. He did not subject this evidence to detailed analysis in his reasons.

He found persuasive the fact that most of Angsea's experts had seen the site and works at the time

when the contract with Wade came to an end. Hawkes had been the project manager and was one of

the engineers accepted by his Honour. Hawkes did calculations on the amount of fill which the Colgate

site would yield and also calculated the amount of fill needed for the Angsea site - two independent

calculations and he in turn relied upon surveying expertise. Those two sets of figures were similar and

significantly less than the amount on the dockets. Guesdon, another engineer called by Angsea, whom

his Honour regarded favourably, did adjustments to Hawkes' calculations in the light of other evidence

and reached a figure best for Wade of 143,000 cubic metres of fill delivered to the Angsea site and

140,000 cubic metres of fill removed from the Colgate site which figures were accepted by his Honour.

It has not been demonstrated after a detailed analysis of the evidence set out in the written

outlines of appeal that his Honour erred in preferring the body of evidence from Angsea over that of

Wade.

It has not been shown that his Honour overlooked relevant competing evidence or acted upon

evidence which was inconsistent with facts incontrovertibly established in reaching the conclusion which

he did about the inconclusiveness of the dockets. This finding was, to some extent, infected with the

view which his Honour took of Gauci's and Wade's credit. Nor has any error been shown to be

involved in accepting the body of evidence from Angsea's witnesses in preference to that of Wade's

witnesses. The grounds of appeal based on this part of the judgment must therefore fail.

As a separate ground of appeal in respect of these matters it is contended that his Honour erred

in law in failing to make detailed findings or, in effect, to give sufficient reasons in respect of this body

of expert evidence. His Honour stated at pp. 46-7 of his reasons that

"Most of the evidence give by the engineers and surveyors on this topic can only be fully appreciated when read with detailed plans and diagrams which each prepared. In consequence it is difficult, if not impossible, in reasons for judgment such as this to analyse their evidence and to give precise reasons for arriving at a particular conclusion."

As is well recognised, the judicial obligation to give reasons for a decision does not require a judge to

detail minutely every step in the process of reasoning which leads to the judge's conclusion: Public

Service Board of New South Wales v. Osmond (1986) 159 CLR 656; Soulemezis v. Dudley

(Holdings) Pty Ltd (1987) 10 NSWLR 247; Huntsman Chemical Company Australia Ltd v.

International Pools Australia Ltd (1995) 36 NSWLR 242. His Honour adequately identified the body

of expert evidence which he preferred. He indicated

"To a significant extent that preference was fortified by the fact that most of them [the experts for Angsea] had the advantage of seeing the site and the work in about the June/July 1989 period. Hawkes in particular was in a very advantageous position ... " p.47.

His Honour made clear that he accepted Guesdon's recalculations and why. His reasons were sufficient

to apprise the parties of his approach to this body of evidence and as to why he reached the conclusion

that he did.

In the event the appeals have been unsuccessful

The appeal by Stanley Thomas Wade in Appeal No 327 of 1996 should be dismissed with

costs.

The appeal by George Gauci and Jennifer Lyn Fox in Appeal No 344 of 1996 should be

dismissed with costs.

As was mentioned at the outset, Rincono Pty Ltd, the third defendant and formerly an appellant

to Appeal No 344 of 1996 was dissolved prior to the date of the orders being made by his Honour.

As an entity it had thus ceased to exist and could not be the subject of any order. No appeal was

based upon that ground. I agree with the orders proposed by McPherson JA with respect to Rincono

Pty Ltd.