WOOD -v- WEST [2008] WASCA 242

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 242
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:80/2007	Heard:	4 SEPTEMBER 2008
Coram:	WHEELER JA BUSS JA LE MIERE AJA	Delivered:	27/11/08
No of pages:	41	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	STEVEN JAMES WOOD GEOFFREY KENNETH BENJAMIN WEST
Catchwords:	Contract Construction of contract Contract for sale of shares Parties to contract Terms of contract Turns on own facts
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : WOOD -v- WEST [2008] WASCA 242 CORAM : WHEELER JA

BUSS JA

LE MIERE AJA

HEARD : 4 SEPTEMBER 2008 DELIVERED : 28 NOVEMBER 2008 FILE NO/S : CACV 80 of 2007 BETWEEN : STEVEN JAMES WOOD

Appellant

AND

GEOFFREY KENNETH BENJAMIN WEST

Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : GROVES DCJ

Citation : WOOD -v- WEST [2007] WADC 63

File No : CIV 2912 of 2001

Catchwords:

Contract - Construction of contract - Contract for sale of shares - Parties to contract - Terms of contract - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Dr P R MacMillan

Respondent : Mr P T Arns

Solicitors:

Appellant : Gibson Lyons

Respondent : Arns & Associates

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

Nil

(Page 3)

1 WHEELER JA: I agree with Buss JA.

2 BUSS JA: The appellant (as plaintiff) sued the respondent (as defendant) in the District Court for $200,000 alleged to be due and payable under an agreement (the Agreement) for the sale and purchase of shares in two companies, together with interest on that amount.

3 The appellant's claim was tried before Groves DCJ. His Honour dismissed the claim. The appellant appeals to this court.

The appellant's pleaded case at trial

4 The appellant, in par 1 of his statement of claim, pleaded the Agreement as follows:

(a) the Agreement was in writing alternatively partly in writing and partly oral or alternatively oral;

(b) insofar as the Agreement was in writing it was set out in a document prepared by the [respondent's] solicitors in or about December 1997, was signed by the [appellant] and the [respondent] and after due search the [appellant] does not have a copy of such document;

(c) insofar as the Agreement was oral it is comprised in two conversations, the first between the [appellant] and the [respondent], and the second between the [appellant], the [respondent] and EN Stamatiou, solicitor;

(d) the first of those conversations:

(i) took place at the [respondent's] home on or about 22 December 1997;

(ii) the substance of the conversation was that the [respondent] was to acquire from the [appellant] for the sum of $200,000.00 a 20% share in Fuel-Tech (WA) Australia Pty Ltd and a 5% share in General Applications Australia Pty Ltd;

(e) the second conversation:

(i) took place in the offices of E N Stamatiou, solicitor, Morley;

As to the substance of the conversation the [appellant] repeats paragraph (d)(ii) …

(Page 4)

5 The appellant alleged, in par 2 of his statement of claim, that the Agreement contained this express term:

(a) the [respondent] was to purchase from the [appellant], alternatively the [appellant] was to provide or transfer or cause to be transferred or issued to the [respondent] a 20% shareholding in a company called Fuel-Tech (WA) Australia Pty Ltd (ACN 079 681 744) ('Fuel-Tech') and a 5% shareholding in a company called General Technology Applications Australia Pty Ltd (ACN 079 672 594) ('GTAA');

(b) the purchase price of the said shares, alternatively the fee to be paid to the [appellant] by the [respondent] was in the sum of $200,000.00.

6 Next, the appellant pleaded, in par 3 of his statement of claim, that it was an implied term of the Agreement that the sum of $200,000 was to be paid within a reasonable time of the making of the Agreement, alternatively within a reasonable time of the transfer (alternatively, the issue) of the shares to the respondent or his nominee. The term was said to be implied 'as a matter of law', alternatively 'by reason that it is reasonable, obvious and necessary to give business efficacy to the Agreement'.

7 The appellant alleged, in par 5 of his statement of claim, that during or about February 1998, when the appellant attended the offices of an accountant, J Palermo, to execute documents, the respondent, pursuant to the Agreement, directed the appellant that his nominee for the provision, alternatively the transfer or issue, of 20 shares in Fuel-Tech and five shares in GTAA was Go-Fa Pty Ltd as trustee for the Go-Fa Trust.

8 The appellant then pleaded, in par 5A of his statement of claim, that pursuant to the Agreement and the facts pleaded in par 5, the appellant, on or about 23 August 1999, provided, alternatively caused to be transferred or issued, 20 shares in Fuel-Tech and five shares in GTAA to Go-Fa Pty Ltd as trustee for the Go-Fa Trust.

9 According to the appellant, in or about August 1999, the appellant and the respondent agreed orally to vary the Agreement. In par 6 of the statement of claim it is pleaded that pursuant to this variation the appellant agreed to provide, alternatively to transfer or cause to be transferred or issued, a further 25 shares in Fuel-Tech to the respondent's nominee, Go-Fa Pty Ltd as trustee for the Go-Fa Trust, for the purchase price of $200,000 specified in the Agreement.

(Page 5)

10 The appellant alleged in par 7 of his statement of claim that pursuant to the Agreement as varied, and at the direction of the respondent, the appellant, on or about 23 August 1999, caused a further 25 shares in Fuel-Tech to be issued to Go-Fa Pty Ltd as trustee for the Go-Fa Trust.

11 It is pleaded, in par 8 of the statement of claim, that a reasonable time has elapsed from the making of the Agreement, alternatively from the transfer of the shares referred to in par 5, alternatively the transfer of shares referred to in pars 5 and 7. It is then alleged, in par 9, that notwithstanding a demand, the respondent has refused or neglected to pay the appellant the sum of $200,000 or any part thereof, which sum is due and payable.

12 The appellant, in his prayer for relief, claims, relevantly, the sum of $200,000 and 'damages'. The statement of claim does not, however, allege that the appellant has sustained any loss or damage and no particulars of any loss or damage are set out. It appears that the claim for damages is a relic from an earlier pleading which the appellant abandoned. This may be inferred from par 3 of the prayer, which reads:

Alternatively damages for compensation for loss suffered as a result of the [appellant] relying upon the assumption or representation induced by the [respondent] and referred to in paragraph 20.

The statement of claim does not plead any assumption or representation and does not contain a par 20.

13 The statement of claim which I have summarised was the appellant's pleaded case at trial. The statement of claim had been amended and re-amended.

Background to the making of the alleged Agreement

14 In 1997, the appellant met with Jerry Trippe in the United States of America. Mr Trippe's company, General Technologies Applications Inc (GTAUS) had apparently developed technology and held patents in relation to fuel additive products. The appellant wished to import, produce, market and distribute the GTAUS fuel additive products in Australia.

15 When he returned to Perth, the appellant consulted his solicitor, Emanuel Stamatiou. Mr Stamatiou gave evidence that the appellant did not have the money required to establish the venture or to pay for professional advice as to the appropriate business structure and documents. Mr Stamatiou agreed, at the appellant's request, to acquire a

(Page 6)

5% interest in the venture. Mr Stamatiou did not have the necessary expertise to prepare the documents and recognised that he may have a conflict of interest because he had agreed to take up an interest in the venture. He therefore referred the appellant to another solicitor, Paul Marinko. Mr Stamatiou also recommended that his accountant, John Palermo, advise the appellant as to the appropriate business structure.

16 The appellant then sought advice from Mr Palermo. According to Mr Palermo's evidence, he recommended the following business structure. GTAUS, the appellant and Mr Stamatiou should form a joint venture company (which was formed and called GTA Australia Pty Ltd (GTAA)) for the purpose of importing and producing the fuel additive products in Australia and New Zealand under a licence from GTAUS. GTAUS would be the controlling entity of GTAA. Another company (which was formed and called Fuel-Tech (WA) Australia Pty Ltd (Fuel-Tech)), should market and distribute the fuel additive products in Australia and New Zealand. Fuel-Tech would act as the trustee of a unit trust, to be known as the FTA Trust, in which various individuals or their nominees who had an interest in the venture would become unit holders. The appellant did not have the money to pay Mr Palermo's fees and, as a result, Mr Palermo agreed, at the appellant's request, to accept a 5% interest in Fuel-Tech and the FTA Trust, and a 5% interest in GTAA, as payment for his services.

17 GTAA was incorporated on 11 August 1997. The appellant became its sole director and shareholder. He held one ordinary share. The appellant continued as the sole director and sole shareholder until 23 August 1999.

18 Fuel-Tech was also incorporated on 11 August 1997. The appellant became its sole director and sole shareholder. He held one ordinary share. The appellant continued as the sole director and sole shareholder until 23 August 1999.

19 In early December 1997, Mr Trippe sought payment from the appellant of a licence fee of $50,000. The appellant, in turn, requested Mr Trippe to defer payment of the fee. Ultimately, Mr Trippe demanded that the $50,000 be paid by 22 December 1997. After that date, a payment of $15,000 was made. As at 3 March 1998, the balance of $35,000 remained outstanding. By a facsimile dated 6 July 2000, Mr Trippe terminated the licence as a result of the non-payment of the balance of the licence fee.

(Page 7)

20 On 22 December 1997, Mr Palermo instructed a solicitor, Agostino Irdi, to prepare a trust deed for the FTA Trust. Mr Iridi's initial instructions were that there were to be two unit holders, namely, the appellant as trustee for the Wood Family Trust, and Mr Stamatiou as trustee for the Stamatiou Investment Trust.

The evidence of the appellant and the respondent

21 The appellant and the respondent gave evidence at the trial.

22 As at 1997, the appellant and the respondent had known each other for several years. In the second half of the 1997 calendar year, the appellant mentioned to the respondent the fuel additive venture in which the appellant was interested. Later, about a week before Christmas 1997, there were some discussions between the appellant and the respondent in connection with the venture. The appellant indicated to the respondent that he would like the respondent to be involved in the venture. There was disagreement between them at the trial as to precisely what, if anything, was agreed.

23 The learned trial judge preferred the respondent's account of the proposal that he become involved in the venture [70]. His Honour recorded the respondent's account, as follows:

[The respondent] says the proposal for his buying into the venture was put to him and it was then left for those advising the parties to document what was to be his involvement and where the moneys for his interest in the venture were to be applied [70].

His Honour gave detailed reasons for preferring the respondent's evidence in this respect.

The meeting with Mr Stamatiou and his letter dated 24 December 1997

24 The appellant said in evidence that on 24 December 1997 he and the respondent met with Mr Stamatiou. The respondent thought the meeting was on 22 December 1997. Mr Stamatiou's recollection, based on a letter dated 24 December 1997 he had sent to Mr Palermo, was that the meeting occurred on 24 December 1997.

25 In the letter dated 24 December 1997, Mr Stamatiou informed Mr Palermo that he had met with the appellant and the respondent on that date. The letter also said:

(Page 8)

We are instructed as follows:

1. To instruct you to change the shareholding structure of [Fuel-Tech] to read as follows:

E N Stamatiou & Co 5%

Acepoint Holdings Pty Ltd [Mr Palermo's company] 5%

Steven James Wood [the appellant] 70%

Geoffrey Kenneth West [the respondent] of 22 Lookout Road, Kalamunda 20%

2. The FTA Trust will no longer be required as it will create complexities in the future.

3. In relation to … GTA Australia the shareholding structure will change as Steven Wood is giving 5% of his shareholding to Geoffrey Kenneth West. In all other respects the shareholding structure remains the same.

4. The consideration for the purchase of a 5% interest in GTA Australia and 20% interest in [Fuel-Tech] by Mr West from Mr Wood, is $200,000.00.

5. Mr Marinko is required to amend Schedule B of the Distribution and Marketing Licence Agreement and any other documentation to reflect:

(a) first payment of US$15,000.00 shall be paid on or before 23 December 1997;

(b) second payment of US$15,000.00 shall be paid on or before 19 January 1998;

(d) instalment payment of AUD$30,000.00 on 30 June 1998;

(e) instalment payment of AUD$30,000.00 on 30 June 2000;

(f) final payment, the difference between the amount already paid and the $200,000.00 consideration for the purchase of the 20% shareholding [in Fuel-Tech] and 5% shareholding in GTA Australia to be paid on 30 June 2001.

We have instructed Mr Marinko to make the necessary changes to all the documents and the shareholders agreement to reflect the position as it now stands.

(Page 9)

Please amend the shareholding structures of both companies and confirm that this has been done.

The role of Mr Hewitt

26 After the meeting on 24 December 1997, the respondent met with his accountant, David Hewitt. He informed Mr Hewitt that Mr Palermo was involved in the proposed venture as accountant as well as an investor. Mr Hewitt recommended that he and the respondent meet with Mr Palermo to discuss the business structure. It appears that Mr Hewitt and the respondent had a meeting with Mr Palermo on 24 December 1997 at Mr Palermo's office.

27 On 9 January 1998, Mr Hewitt, on instructions from the respondent, arranged for Go-Fa Pty Ltd to be incorporated. The respondent and his wife, Sharon West, were the directors and shareholders. They held one ordinary share each. On 8 January 1998, Mr Hewitt instructed Mr Irdi to prepare a deed of settlement for the Go-Fa Trust. On or about 8 January 1998, Mr Hewitt informed Mr Palermo that the respondent's interest in the proposed venture would be held by Go-Fa Pty Ltd as trustee for the Go-Fa Trust.

The FTA Trust

28 Subsequently, Mr Palermo informed Mr Irdi that Go-Fa Pty Ltd as trustee for the Go-Fa Trust and Mr Palermo's company, Acepoint Holdings Pty Ltd, as trustee for the Ace Trust, would be additional unit holders in the FTA Trust.

29 Accordingly, the unit holders in the FTA Trust and their respective unit holding were to be:

(a) the appellant as trustee for the Wood Trust: 700,000 units (70%);

(b) Mr Stamatiou as trustee for the Stamatiou Investment Trust: 50,000 units (5%);

(d) Go-Fa Pty Ltd as trustee for the Go-Fa Trust: 200,000 units (20%).

30 Mr Palermo also provided Mr Irdi with details of the manner in which Go-Fa Pty Ltd was to pay for its 200,000 units. The units were to be issued at 1 cent each plus a premium of 99 cents, being a total of $1 per unit. Payment was to be made as follows:
(Page 10)

(a) $25,000 on 23 December 1997;

(b) $25,000 on 19 January 1998;

(d) $30,000 on 30 June 1998;

(e) $30,000 on 30 June 1999;

(f) $30,000 on 30 June 2000; and

(g) $30,000 on 30 June 2001.

31 Mr Irdi then prepared a deed of settlement for the FTA Trust in accordance with Mr Palermo's instructions.

32 Clause 6.2 of the FTA Trust Deed provides:

The First Unit Holders are deemed to have applied for and will pay the subscription amounts for the number of Units shown alongside their respective names in Item 3 of the First Schedule.

The term 'First Unit Holders' was defined in the Deed to include, relevantly, Go-Fa Pty Ltd as trustee for the Go-Fa Trust. Item 3 of the First Schedule to the FTA Trust Deed specifies that Go-Fa Pty Ltd as trustee for the Go-Fa Trust has subscribed for 200,000 units on the terms set out at [30] above.

33 The common seal of Fuel-Tech was affixed to the deed of settlement with the appellant signing as sole director/secretary. The appellant also signed the deed as trustee for the Wood Family Trust. Mr Stamatiou signed the deed. The common seal of Acepoint Holdings Pty Ltd was affixed to the deed, with Mr Palermo signing his name next to the imprint of the seal. The common seal of Go-Fa Pty Ltd was not affixed to the seal, but the respondent and his wife signed the document.

The Transaction Documents

34 Mr Marinko prepared various documents which were referred to as the Transaction Documents. He gave drafts of these documents to Mr Stamatiou and Mr Palermo to review before the final documents were signed. The Transaction Documents comprised:

(a) Distribution and Marketing Licence Agreement – Fuel Additive Licensed Products – the parties to the agreement were GTAUS, Fuel-Tech atf the FTA Trust and the appellant atf the Wood Family Trust.

(Page 11)

(b) Importation and Production Licence Agreement – Fuel Additive Licensed Products – the parties to the agreement were GTAUS, GTAA and the appellant atf the Wood Family Trust.

(c) Umbrella Agreement For The Importation, Production, Distribution and Marketing of Fuel Additive Licensed Products – the parties to the agreement were GTAUS, GTAA, Fuel-Tech atf the FTA Trust, the appellant atf the Wood Family Trust, Acepoint Holdings Pty Ltd atf the Ace Trust, Mr Stamatiou atf the Stamatiou Investment Trust and Go-Fa Pty Ltd atf the Go-Fa Trust.

(d) Shareholders Agreement – the parties to the agreement were GTAUS, GTAA, the appellant atf the Wood Family Trust, Acepoint Holdings Pty Ltd atf the Ace Trust, Mr Stamatiou atf the Stamatiou Family Trust and Go-Fa Pty Ltd atf the Go-Fa Trust.

The allotment of shares to Go-Fa

35 Shares in GTAA and shares in Fuel-Tech were not allotted to Go-Fa Pty Ltd as trustee for the Go-Fa Trust until 23 August 1999.

36 The appellant did not at any time transfer any shares held by him in GTAA or Fuel-Tech to the respondent or Go-Fa Pty Ltd.

The learned trial judge's reasons: was there an agreement between the appellant and the respondent as alleged?

37 The learned trial judge said that, after an analysis of the evidence, he was not satisfied, on the balance of probabilities, that there was an agreement between the appellant and the respondent as alleged in the statement of claim [83]. His Honour gave detailed reasons for that conclusion.

38 The learned trial judge also said that even if, contrary to his primary conclusion, there was an agreement between the appellant and the respondent as alleged, that agreement was superseded by the express provisions of the Transaction Documents.

39 The appellant's claim therefore failed.

The appellant's grounds of appeal

40 The appellant's grounds of appeal read:

1. The Learned Trial Judge erred in fact in finding that the contemporary documentation precluded a finding that the appellant

(Page 12)

was personally to receive the sum of $200,000 from the respondent for interests in Fuel-Tech (WA) Australia Pty Ltd ('Fuel-Tech') and General Technology Applications Australia Pty Ltd ('GTAA') (Ground 1.0). The specific errors relied upon by the appellant are that the Learned Trial Judge erred:

(a) in finding that the fact that only one payment of $200,000 was to be made taken with the documentation allows only one conclusion and that is that the money was not payable to the appellant (Ground 1.1);

(b) in finding that little reliance could be placed on Stamatiou's letter dated 24 December 1997 (Exhibit 1) (Ground 1.2);

(c) in finding that because the FTA Trust Deed (Exhibit 12) provided for investment of the sum of $200,000 in the venture on a progressive basis [that] clearly indicated that the appellant was not selling a part of his interest in Fuel-Tech and GTAA to the respondent (Ground 1.3).

2. The Learned Trial Judge erred in fact in finding that the evidence did not establish on a balance of probabilities an oral agreement between the plaintiff and the defendant made during or about December l997 pursuant to which the appellant was for a consideration of $200,000.00 to sell or cause to be issued to the respondent a 20% shareholding in Fuel-Tech and a 5% shareholding in GTAA (Ground 2.0). The specific errors relied upon by the appellant are as contended for in ground 1 of these grounds and that the Learned Trial Judge erred:

(a) in finding that it was not the appellant's evidence that the respondent agreed to purchase from the appellant shares in Fuel-Tech and in GTAA (Ground 2.1);

(b) in finding that the respondent denied that there was any oral agreement between the appellant and the respondent as to the provision of shares in Fuel-Tech and GTAA to the respondent (Ground 2.2);

(c) in failing to take into account the admission made by the respondent in his affidavit sworn 22 February 2001 (Exhibit 50) that he had made an agreement with the appellant pursuant to which he was to buy shares in Fuel-Tech and GTAA (Ground 2.3);

(d) in finding that the respondent's explanation of his prior inconsistent statements in affidavits sworn 22 February 2001 (Exhibit 50), 8 April 2002 and 14 August 2002 was plausible (Ground 2.4);

(Page 13)

(e) in finding that Stamatiou was not aware of any agreement between the appellant and the respondent pursuant to which the respondent was to pay the appellant $200,000 for an interest in Fuel-Tech and GTAA (Ground 2.5);

(f) in finding that there was no evidence from the appellant or Stamatiou as to what was said at the meeting in December 1997 in Stamatiou's offices between Stamatiou and the parties (Ground 2.6);

(g) in finding that the respondent did not purchase from the appellant interests in Fuel-Tech and GTAA but rather that Go Fa Pty Ltd as trustee for the Go Fa Trust acquired 200,000 units in the FTA Trust for the sum of $200,000 (Ground 2.7);

(h) in finding that the appellant must have been aware of the corporate structure and arrangement (Ground 2.8);

(i) in finding that evidence from Palermo that the respondent would invest $200,000 on a progressive basis in the venture clearly indicated the appellant was not selling a part of his interest in Fuel-Tech and GTAA to the respondent (Ground 2.9).

3. The Learned Trial Judge erred in fact in finding that no direction was given by the respondent to the appellant that the shares in Fuel-Tech and GTAA be registered in the name of Go-Fa Pty Ltd as trustee of the Go-Fa Trust (Ground 3).

4. The Learned Trial Judge erred in law in finding that an agreement between the parties as alleged by the appellant was superseded by the express provisions of the transaction documents (Ground 4.0). The specific errors relied upon by the appellant are that the Learned Trial Judge erred:

(a) in finding that the whole agreement term in the Umbrella Agreement (Exhibit 10) precluded reliance on any prior agreement between the appellant and the respondent (Ground 4.1);

(b) in finding that the whole agreement term in the Distribution and Marketing Agreement (Exhibit 8) precluded reliance on the oral agreement contended for by the appellant (Ground 4.2).

5. The Learned Trial Judge erred in law in finding that by receiving payment of the sum of $200,000 from the respondent pursuant to the agreement contended for by the appellant, the appellant would

(Page 14)

be in breach of a fiduciary duty to adhere to the terms of the FTA Trust Deed alternatively would be abusing his position by acquiring a profit or benefit for himself in a situation of conflict of personal interest and fiduciary duty.

The grounds of appeal generally: the appellant's oral submissions

41 Counsel for the appellant acknowledged, in oral argument before this court, that the appellant's case on appeal was that the respondent and his nominee, Go-Fa Pty Ltd, were obliged to pay, in total, $400,000. The respondent was obliged to pay the appellant $200,000, pursuant to the alleged agreement between them, and Go-Fa Pty Ltd was obliged to pay $200,000 to Fuel-Tech for 200,000 units in the FTA Trust.

42 Counsel also acknowledged that the appellant's case on appeal was different from the case run at trial, which was based on the allegation that there was an agreement between the appellant and the respondent which involved a single payment of $200,000 to be made by the respondent personally to the appellant personally.

43 Further, it was acknowledged on behalf of the appellant that the appellant's case on appeal was based solely on the existence of an alleged oral agreement between the appellant and the respondent. The final version of the appellant's statement of claim at trial contended that the agreement was in writing, alternatively partly in writing and partly oral, or alternatively oral.

44 Counsel for the appellant submitted to this court that the learned trial judge was in error in failing to find, on the balance of probabilities, that there was an oral agreement between the appellant and the respondent as alleged in the statement of claim. Counsel contended that his Honour should have made that finding on the basis of the following evidence:

(a) The respondent, in cross-examination, said that in August 1999 he informed the appellant that he wanted a larger interest in the venture. The following exchange then occurred between the respondent and cross-examining counsel:

So what was your interest prior to your saying that to Mr Wood?---I assumed it was - or I was led to believe I had a 20 per cent or whatever it is in Fuel-Tech and a 5 per cent thing in GTA.

A 5 percent thing? A 5 per cent shareholding do you mean?---I don't know. I really don't know.

(Page 15)

Well, you say that you were led to believe that you had 20 per cent in Fuel-Tech and a 5 per cent thing in GTAA. What led you to that understanding?---Because that's what he said I was going to get.

When did he say that?---On 18 December 97.

That's Mr Wood?---That's correct.

Told you that you were going to get a 20 per cent shareholding in Fuel-Tech and a 5 per cent shareholding in GTAA?---Yes, that's correct.

And you accepted that?---Yes.

You worked on that basis all the way through, didn't you?---Yes.

And when you said to him in August 1999, 'I want a bigger interest,' what you mean is bigger than 20 per cent shareholding in Fuel-Tech and bigger than 5 per cent shareholding in GTAA?---That's correct.

Mr Wood also said to you on your evidence the day after the dinner at your home that he wanted $200,000 for those shares, didn't he?---Yes.

And you accepted that, didn't you?---That's - yes (ts 243).

(b) The respondent's evidence in two affidavits, one sworn 22 February 2001 and the other sworn 8 April 2002. The affidavit sworn 22 February 2001 was in response to the appellant's application for specific discovery. In pars 2, 3 and 4 of that affidavit, the respondent said:

2. I swear this affidavit in response to the Applicant[']s application for Discovery pursuant to Order 26A Rule 4 of the Supreme Court Rules for discovery of documents relating to:

(a) the Agreement between the Applicant and the Respondent pursuant to which the Applicant agreed to sell and the Respondent agreed to buy shares in General Technology Applications Australia Pty Ltd and Fuel-Tech (WA) Australia Pty Ltd in or about December 1997 ('the Agreement') including the Agreement; and

(b) the variation to the Agreement made in or about August 1999.

3. I have previously viewed the Documents described in paragraph 2 herein but have not had nor have now those Documents in my possession, custody or power.

(Page 16)

4. I have no knowledge as to the whereabouts of the Documents described in paragraph 2 herein.

In par 26 of the affidavit sworn 8 April 2002 in support of the respondent's application to set aside a default judgment, the respondent said:

In or about January 1998 an agreement was prepared by the Plaintiff's solicitor, E N Stamatiou & Co, which evidences an agreement for me to purchase shares in Fuel-Tech and GTAA ('the Agreement') for the sum of $200,000.00. I do not recall the exact terms of that agreement nor do I possess a copy of the Agreement.

(c) Mr Stamatiou's letter dated 24 December 1997 (see [25] above) which, on his evidence, he dictated in the presence of the appellant and the respondent.

(d) Mr Stamatiou's evidence as to a conversation with the respondent at the meeting on 24 December 1997.

(e) The respondent's nominee, Go-Fa Pty Ltd, being in fact allotted shares in Fuel-Tech and GTAA which reflected the agreement alleged in the statement of claim.

Ground 1.1

45 The learned trial judge made these findings in relation to the alleged agreement:

First, it must be recognised that implicit in [Wood's] claim is that Wood contends that he personally was to receive the sum of $200,000 from West for interests in [Fuel-Tech] and GTAA. That assertion does not withstand scrutiny. First and foremost Wood acknowledges that it was not the deal that the total consideration to be paid by West and Go-Fa Pty Ltd for an interest in the venture was $400,000. That is, Go-Fa Pty Ltd paying $200,000 for units in the FTA Trust and West paying Wood $200,000 for shares in [Fuel-Tech] and GTAA.

Wood rejects that proposition but made no attempt to reconcile the obvious inconsistency. The terms of the FTA Trust conflict directly with Wood's claim that West also entered into a personal agreement with him for the payment of $200,000. There was no evidence that Wood at any time or with those advising him raised any query when it was apparent from the documentation, viz FTA Trust that the company associated with West was paying the $200,000 by instalments to acquire units in the Trust. If one accepts Wood's evidence that only one amount of $200,000 was to be paid for West's interest in the venture then, given the documentation, it was not payable to Wood. The keystone of the plaintiff's claim is clearly without support even on his own evidence [84] - [85].

(Page 17)

46 It was not the appellant's pleaded case that the appellant and the respondent had made two agreements for the allotment or transfer of shares in GTAA and Fuel-Tech and units in the FTA Trust. The trial was conducted on the basis that the parties had made only one agreement. The contention that there were two agreements, each involving the payment by the respondent or his nominee of $200,000, was first raised by counsel for the appellant in closing submissions at the trial. This contention is inconsistent with the final version of the statement of claim and is also inconsistent with evidence given by the appellant and the respondent. Neither of them suggested that at any time there was an agreement (or even an arrangement or understanding) that the respondent or his nominee would pay $400,000.

47 The terms of the alleged agreement, as pleaded, became increasingly complex as the appellant made various amendments to his original statement of claim. The complexity of the terms, as alleged in the final version of the statement of claim, influenced the learned trial judge's ultimate finding against the appellant. His Honour said:

The alleged written agreement as was initially pleaded is said to have been prepared by West's solicitor in or about December 1997. West's solicitor Marks denied any instructions or knowledge concerning such a document. As originally pleaded it would have been a reasonably straight forward agreement to prepare. However, the subsequent pleading amendments, eg introducing alternatives to the express terms, introduced some complexity into such an agreement. There was no evidence however from Wood that the alternatives were the subject of any discussion between he and West or whether or not they were in fact included in the written document. There is nothing from which it might be inferred that they were included as express terms of the alleged agreement. That aspect of the pleading must be rejected [95].

48 The learned trial judge found that the appellant was uncertain as to what, if anything, was agreed between him and the respondent. The appellant's letter before action dated 20 September 2000 from his solicitor to the respondent asserted:

He instructs us that in about December 1997 he and you entered into an agreement whereby you would buy a share in the businesses operated by [Fuel-Tech] and [GTAA]. The consideration for the purchase of a 5% interest in GTAA and and a 20% interest in [Fuel-Tech] by you from Mr Wood was $200,000.

His Honour noted that the allegations in the statement of claim had changed substantially since the proceedings were commenced [63]. He summarised the appellant's amendments to his pleadings:

(Page 18)

When Wood commenced this action by writ on 8 November 2001 it was alleged that West agreed to purchase from Wood 20 shares in [Fuel-Tech] and five shares in GTAA. Of course that is not consistent with what was contended in either the letter before action or what the plaintiff has contended at trial. West did not purchase any shares from Wood and Wood did not sell or transfer any of his shares to West or Go-Fa. It is pleaded at par 5 that Wood '…at the direction of (West) during or about December 1997…' transferred 20 shares in [Fuel-Tech] and five shares in GTAA to Go-Fa Pty Ltd atf the Go-Fa Trust. There was no evidence that West gave any such direction during or about December 1997 and nor did Wood transfer any shares. In fact Go-Fa Pty Ltd had not been incorporated at that stage.

Paragraph 2(a) of the statement of claim was amended in February 2004 to allege that it was an express term of the agreement that West '…or his nominee…' was to purchase the shares from the plaintiff. That remained the allegation until amendment which I granted by leave on the first morning of trial. The reason for the amendment as deposed to by Wood's solicitor to include the words '…or his nominee…' was that Wood did not initiate the amendment and that it was not necessary or intended and was made in error and did not reflect the terms of the agreement as alleged by Wood.

By amendment made 21 February 2006 par 2(a) of the statement of claim was further amended to plead '…the defendant or his nominee was to purchase from the plaintiff, alternatively the plaintiff was to provide or transfer or cause to be transferred or issued to the defendant or his nominee…' shares in the companies.

Paragraph 2(b) was amended to plead '…the purchase price of the said shares, alternatively the fee to be paid to the plaintiff by the defendant was in the sum of $200,000.' Those amendments still stand as the plaintiff's pleading. There was no evidence of any discussion to the effect that '…the plaintiff was to …cause to be transferred or issued…' shares or that '…alternatively a fee…' was to be paid for any purchase of shares.

By further amendment granted by leave on the first morning of trial the plaintiff, whose allegation to that stage was the agreement between he and West was in writing, for the first time raised the allegation that the agreement was ... 'alternatively partly in writing and partly oral or alternatively oral.' Insofar as the agreement was said to be oral it was alleged to be comprised in two conversations the first being the conversation between Wood and West at the latter's home on 22 December 1997 and the second conversation being at the first meeting which they had with Stamatiou. By this amendment it was alleged for the first time in the pleadings that West was to acquire from Wood a 20 per cent share in [Fuel-Tech] and a five per cent share in GTAA whereas previously the pleading referred to 20 shares in [Fuel-Tech] and five shares in GTAA.

(Page 19)

Even so the pleading is still confused. Paragraphs 1(d) and 2(a) refer to 20 per cent in [Fuel-Tech] and 5 per cent in GTAA whereas pars 5 and 5A each refer to 20 shares in [Fuel-Tech] and 5 shares in GTAA [64] - [69]. (emphasis in original)

49 After reviewing the various amendments to the appellant's statement of claim, the learned trial judge concluded that the amendments and inconsistencies in the various versions of the statement of claim, and the lack of supportive evidence for his pleaded case as amended from time to time, demonstrated the appellant's uncertainty as to:

(a) what was discussed on relevant occasions;

(b) what, on his assertion, was actually agreed; and

50 The learned trial judge's conclusion as to the appellant's uncertainty is supported by the appellant's confusion in relation to the basic elements of the business structure adopted for the venture. He said, in cross-examination:

Do you understand what a trustee company does?---Not completely.

Or at all?---Not completely.

Did you understand that Fuel-Tech was a trustee company?---Yes.

Did you understand that it was a trustee for the FTA Trust?---I was the trust for the FTA Trust.

You were the trust?---As far as I thought I was, yes.

Are you aware - or the evidence of Mr Palermo will be that Fuel-Tech was established as a trustee company of the FTA Trust of which various parties such as yourself, Mr Stamatiou, Go-Fa Pty Ltd would have units?

---Shares.

I'm putting to you that it's units. Do you understand?---I was under the impression they were shares not units.

So nobody has explained to you the difference between units and shares?---I assumed they were the same thing. A unit means a share.

So when one talks about units and shares, to you they mean exactly the same thing?---Correct (ts 90).

51 The learned trial judge held, based on the appellant's uncertainty as to the critical elements of his claim, that the appellant's evidence was 'at
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best dubious as to what, if anything, that he contends for was agreed, as alleged, between him and the respondent' [70]. His Honour also based that finding on the following:

Furthermore, on Wood's evidence, on no occasion was the time for payment of any moneys to him by West discussed. On the other hand it was Palermo's evidence that Wood told him that West would invest $200,000 on a progressive basis. That is consistent with the payment schedule in Stamatiou's letter [dated 24 December 1997] (Exhibit 1) and Palermo's advice to Irdi as to the schedule for payment of units in the FTA Trust by Go-Fa Pty Ltd [70].

52 The respondent's evidence, in cross-examination, which I have set out at [44] above, is not inconsistent with the learned trial judge's findings. That evidence was, in substance, that on 18 December 1997 the appellant told him that under the proposal he (the respondent) would receive a 20% shareholding in Fuel-Tech and a 5% shareholding in GTAA, and that on the day after the dinner at the respondent's home on 22 December 1997, the appellant told him that he wanted $200,000 for the shares he (the respondent) would receive. The respondent said he accepted the proposal put to him by the appellant. However, it is plain from the transactions that were actually implemented, and the findings of the learned trial judge and the other evidence I have set out at [15] - [16], [20], [23], [26] - [34], [37] - [38] and [45] - [51] above, that:

(a) the agreement referred to by the respondent in cross-examination was, in substance, an agreement for the respondent to pay $200,000 to acquire a 20% interest in a venture, which the appellant was to establish and promote, involving the marketing and distribution of fuel additive products in Australia and New Zealand; and

(b) both parties, whom the learned trial judge described (accurately) as 'commercially naïve' ([35], [37]), promptly engaged solicitors and accountants to advise on and implement an appropriate business structure for the respondent's participation (and the participation of others) in the proposed venture.

53 In my opinion, the learned trial judge did not err in finding that the fact that only one payment of $200,000 was to be made, taken with the documentation (in particular, the Transaction Documents) entered into by the parties, required the conclusion that, on the balance of probabilities, the $200,000 was not payable by the respondent personally to the appellant personally.

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54 Ground 1.1 fails.

Ground 1.2

55 The learned trial judge's findings in relation to Mr Stamatiou's letter dated 24 December 1997 (exhibit 1) were these:

As to the allegation in par 1(c) and (e) of the statement of claim concerning the alleged oral agreement or partly oral agreement there was no evidence from either party or Stamatiou at that meeting specifically as to what in fact was said. However, Stamatiou's letter (Exhibit 1) does indicate that there must have been some discussion to the effect as outlined in that letter. However that has to be read in the context of the instruction that Marinko was required to amend the Distribution and Marketing Licence Agreement to reflect the instalments for [West] to acquire the interests in [Fuel-Tech] and GTAA. Clearly, Stamatiou did not fully understand what the corporate structure was to be. That is evidenced by the fact that he said the FTA Trust will no longer be required. It was in fact an integral part of the whole corporate structure. In any event Palermo ignored the letter as did Hewitt. Palermo said that it was inconsistent with the previous instruction from Wood. Stamatiou acknowledged that he deferred to Palermo so far as that structure was concerned. In that respect little reliance can be placed on the content of Stamatiou's letter [89].

56 The learned trial judge also made findings as to Mr Stamatiou's knowledge or belief as at 24 December 1997 (when he wrote the letter of that date), and Mr Stamatiou's impressions of the respondent, and the advice he gave him, at that meeting:

Stamatiou was not aware of any agreement as between Wood and West whereby West was to pay Wood personally $200,000 for an interest in the venture.

This was the first occasion that Stamatiou had met West. Wood introduced him as a 'friend and a good buddy'. Stamatiou ascertained that West had sold a farm and was cashed up and wanted to invest in the venture. Stamatiou's impression of West was that he was naïve in commercial matters. Stamatiou, even at that early stage had doubts about the product and, as he recounted, 'he doubted that something that could save 17 per cent on fuel consumption had not been snapped up by the big fuel companies'. It was also his belief that he advised West to seek his own independent legal and accounting advice before committing to it and suggested that he should talk to Palermo who would outline to him the structure of the venture and how it would operate [25] - [26].

These findings were reasonably open to his Honour. See Mr Stamatiou's evidence at ts 120, 133 - 135.

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57 After the meeting on 24 December 1997, the respondent's accountant, Mr Hewitt, discussed with Mr Palermo the business structure for the proposed venture and the manner in which the respondent's investment in the proposed venture should be arranged and paid for. See the evidence of the respondent at ts 185 - 188, Mr Hewitt at ts 260 - 261 and Mr Palermo at ts 312.

58 It is important to note that the learned trial judge actually said 'in that respect' little reliance could be placed on the content of Mr Stamatiou's letter [89]. The relevant 'respect' was the statements in the letter in relation to the proposed business structure; in particular, the statement that the FTA Trust would no longer be required. His Honour did not say that, generally, little reliance could be placed on the letter.

59 In my opinion, the learned judge did not err in finding that little reliance could be placed on the content of Mr Stamatiou's letter dated 24 December 1997 in the 'respect' I have mentioned.

60 Ground 1.2 fails.

Ground 1.3

61 The learned trial judge made these findings in relation to the business structure adopted for the venture, including the FTA Trust:

It was Wood's evidence that at or around the time of the meeting at West's home there was some discussion about the corporate structure of the venture and West buying shares in the corporate entities. Relevantly, it was not his evidence, as alleged in par 1 of the statement of claim that the defendant agreed to purchase from the plaintiff shares in the two companies. It must be appreciated that the plaintiff personally and the corporate bodies, ie companies, are separate and distinct legal entities. Buying shares from an individual and receiving an allocation of shares in a company or units in a trust are different things. On allocation the payment goes to capital of the company or as capital of the trust. Wood's naivety so far as these matters were concerned, was demonstrated by his admission in cross-examination that he did not appreciate any difference between shares and units. Otherwise the plaintiff's evidence was non-specific so far as any detail as to how the proposed arrangement was to be put into effect. He was reliant on those engaged to advise him as to the corporate structure. It was by their doing that the interest associated with West, namely Go-Fa Pty Ltd atf Go-Fa Trust, was acquired by the allocation of shares and units in the trust.

That this is what was proposed is supported by the independent evidence of Palermo in that it was his evidence that what he was told by Wood at the meeting prior to Christmas [was] that he had another investor involved

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in the venture and '…that West would invest $200,000 on a progressive basis.' That evidence went unchallenged. That is something different from saying as Wood claims that he personally was to be paid $200,000. That the payment was to be made on a progressive basis is reflected in the FTA Trust Deed subsequently prepared. That evidence is clearly indicative that Wood was introducing West as an investor in the venture and not that he, Wood, was personally selling a part of his interest to West.

Contrary to what is alleged to have been the agreement West did not and has not purchased from Wood the interests in [Fuel-Tech] and GTAA. What was acquired so far as interests associated with West are concerned, was that Go-Fa Pty Ltd atf Go-Fa Trust acquired 200,000 units in the FTA Trust for the sum of $200,000. Subsequently in August 1999 as a result of later discussions interests in the companies were allocated to Go-Fa Pty Ltd [91] - [93].

62 In my opinion, the learned trial judge did not err in stating that the provision in the FTA Trust Deed for investment of the sum of $200,000 in the venture, on a progressive basis, was evidence 'clearly indicative' that the appellant was introducing the respondent as an investor in the venture, and not that the appellant was personally selling a part of his interest (that is, shares) in Fuel-Tech and GTAA to the respondent [92].

63 The learned trial judge's ultimate finding against the appellant in relation to the alleged agreement, as pleaded, was not based solely on the provision in the FTA Trust Deed for investment of the sum of $200,000 in the venture, on a progressive basis. The ultimate conclusion was based, relevantly, on all of the findings of fact which are challenged in grounds 1, 2, 3 and 4 of the appellant's grounds of appeal.

64 Ground 1.3 fails.

Ground 1 generally

65 For the reasons I have given, in the course of examining grounds 1.1, 1.2 and 1.3, the learned trial judge did not err in fact, as alleged in ground 1.

Ground 2.1

66 The learned trial judge found, relevantly, that it was not the appellant's evidence, as alleged in par 1 of the statement of claim, that the respondent agreed to purchase from the appellant shares in Fuel-Tech and GTAA [91].

67 I have set out the learned judge's findings [91] - [93] on this issue at [61] above in considering ground 1.3.

(Page 24)

68 The appellant said, in evidence-in-chief, in relation to the meeting at the respondent's home on 22 December 1997:

Did you have a discussion with Mr West that evening about the venture?---Yes, we went up to his office shortly after arrival and I put to Mr West that it was going to be a 5 per cent of GTAA and 20 per cent of Fuel-Tech for a price of $200,000.

What was his response to that?---He said, 'Yes, that would be great.'

After you had had this conversation with Mr West what did you do, you and Mr West?---I went downstairs and opened the bottle of champagne with the girls.

And had dinner?---And had dinner, yes.

Again, everyone agrees that on 24 December 1997, two days later, you and Mr West went to see Mr Stamatiou?---Correct.

Where did you speak with Mr Stamatiou?---In his office in Morley.

Who was present in his office?---Myself, Mr West, and Mr Stamatiou.

What did you tell Mr Stamatiou about your purpose in coming to see him that day with Mr West?---My purpose for the visit was to - for him to - for him to draw up documents to the fact that Mr West had bought shares in Fuel-Tech and GTAA for $200,000 at 5 per cent for GTAA and 20 per cent in Fuel-Tech (ts 27).

69 The appellant did not specify whether the shares proposed to be acquired by the respondent were to be transferred by the appellant personally to the respondent or whether the respondent was to be allotted shares by Fuel-Tech and GTAA.

70 The appellant said, in cross-examination, in relation to the meeting on 22 December 1997:

When you came out from that meeting you announced to your respective wives that you had an agreement?---We had put a proposal to each other and had made an agreement for him to buy the shares at a cost of $200,000.

What Mr West will say is that the price in fact wasn't discussed at that meeting, it wasn't discussed until the following day when you telephoned him and said, 'I've thought about our discussion' - the previous evening - 'And a fair price is $200,000.' Do you disagree with that?---Absolutely.

How was the price of $200,000 - I withdraw that. When you had this discussion with Mr West about the payment of the price of $200,000 did

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you tell him how much of the price was being apportioned to Fuel-Tech and how much was being apportioned to the shares in GTAA?---No.

It wasn't fifty-fifty?---No.

- - - 100,000 for Fueltech shares and 100,000 for GTA shares?---No.

All you were interested in was the $200,000?---At that particular time Geoff wanted the shares and I was willing to sell him the shares for $200,000.

That was your price, you'd given it some thought and as far as you were concerned that was a fair price and presumably the issue in the forefront of your mind at that conversation was to ensure that you got the 200,000-dollar price?---Correct (ts 69).

71 In my opinion, the appellant's statement in cross-examination that '[the respondent] wanted the shares and I was willing to sell him the shares for $200,000' does not, in the context of his evidence as a whole and the learned trial judge's findings and the other evidence I have set out at [45] - [53] above in considering ground 1.1, clearly indicate that, according to the appellant, the shares were to be transferred by the appellant personally to the respondent as distinct from the respondent being allotted shares by Fuel-Tech and GTAA.

72 In my opinion, it was reasonably open to the learned trial judge to make the finding of fact attacked by ground 2.1. His Honour did not make any material error in the facts he found or in the fact-finding process.

73 Ground 2.1 fails.

Ground 2.2

74 The learned trial judge made these findings in relation to the appellant's case concerning the alleged agreement and the respondent's evidence as to the alleged agreement:

What these amendments, inconsistencies and lack of supportive evidence serve to show I suggest is the uncertainty which Wood has insofar as what was discussed on the relevant occasions and what, on his assertion, was agreed and what the arrangement for West's involvement in the venture was to be. Furthermore, on Wood's evidence, on no occasion was the time for payment of any moneys to him by West discussed. On the other hand it was Palermo's evidence that Wood told him that West would invest $200,000 on a progressive basis. That is consistent with the payment schedule in Stamatiou's letter (Exhibit 1) and Palermo's advice to Irdi as to the schedule for payment of units in the FTA Trust by Go Far Pty Ltd.

(Page 26)

The uncertainty of [Wood] as to what in fact the terms of the alleged agreement were lead me to conclude that the evidence of the plaintiff is at best dubious as to what, if anything, that he contends for was agreed as alleged as between he and West. West denies that there was any agreement either in writing or orally. He says the proposal for his buying into the venture was put to him and it was then left for those advising the parties to document what was to be his involvement and where the moneys for his interest in the venture were to be applied. For the reasons to be shortly enunciated I prefer West's account [70].

75 In my opinion, it is plain, from the learned trial judge's reasons at [70] and in the context of his reasons as a whole, that his Honour, in stating that the respondent denied 'there was any agreement either in writing or orally' [70], was referring to the alleged agreement, as finally pleaded and run at trial.

76 Counsel for the appellant, in his submissions to this court, contended that the respondent gave evidence of an agreement between the appellant and the respondent for the provision by the appellant to the respondent of shares in Fuel-Tech and GTAA. Counsel referred to the respondent's affidavit sworn 22 February 2001, and certain evidence of the respondent in cross-examination (ts 227, 243).

77 I deal with the relevant content of the respondent's affidavit sworn 22 February 2001 in the course of considering grounds 2.3 and 2.4. It is sufficient to note, for the purposes of ground 2.2, that an alleged admission against interest by the respondent in that affidavit was subsequently withdrawn, and the learned trial judge found, and was entitled to find, that the respondent's explanation for retracting the admission was plausible and credible.

78 As to the respondent's evidence in cross-examination:

(a) the respondent said that up to 8 April 2002, he believed he had made an agreement with the appellant to purchase shares in Fuel-Tech and GTAA for $200,000 in accordance with the Transaction Documents (ts 227 - 228);

(b) the respondent said that as at 8 April 2002, he did not 'honestly know' whether he had made an agreement with the appellant to purchase shares in Fuel-Tech and GTAA for $200,000 (ts 227); and

(c) the respondent gave the evidence which I have set out at [44] above, and considered, in the context of ground 1.1, at [45] - [53] above (ts 243).

(Page 27)

79 As I have mentioned at [52] above, it is plain from the transactions that were actually implemented, and the findings of the learned trial judge and the other evidence I have set out at [15] - [16], [20], [23], [26] - [34], [37] - [38] and [45] - [51] above, that:

80 In summary, the respondent did not deny that there was an oral agreement between the appellant and the respondent as to the provision of shares in Fuel-Tech and GTAA to the respondent. Rather, he denied that there was an oral agreement as alleged by the appellant. The learned trial judge's findings, at [70], properly understood, are not inconsistent with the respondent's evidence.

81 Ground 2.2 fails.

Grounds 2.3 and 2.4

82 It is convenient to consider these grounds together.

83 The learned trial judge made findings in relation to the respondent's statements in his affidavits sworn 22 February 2001, 8 April 2002 and 14 August 2002, as follows:

From the outset so far as pleadings are concerned West has consistently denied entering into an agreement as alleged by Wood. Specifically the pleadings alleged (until amended on the first morning of trial) that the agreement was in writing and was set out in a document prepared by the defendant's solicitors in or about December 1997.

In support of the assertion that there was such an agreement Wood through his counsel in cross-examination directed the attention of West to certain affidavits sworn by him since commencement of the proceedings and subsequent to the denials made by his defence. The first affidavit was in response to an application for specific discovery of the alleged written

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copy of the agreement pleaded. In response West deposed in his affidavit sworn 22 February 2001 –

2. I swear this affidavit in response to the applicant's application for discovery pursuant to O 26A, r 4 of the Supreme Court Rules for discovery of documents relating to:

(a) the Agreement between the applicant and the respondent pursuant to which the applicant agreed to sell and the respondent agreed to buy shares in General Technology Applications Australia Pty Ltd and Fuel Tech (WA) Australia Pty Ltd in or about December 1997 ('the Agreement') including the agreement; and

(b) the variation to the Agreement made in or about August 1999.

3. I have previously viewed the Documents described in paragraph 2 herein but have not had nor have now those documents in my possession, custody or power.

4. I have no knowledge as to the whereabouts of the documents described in paragraph 2 herein.

He was also referred to his affidavits sworn 8 April 2002 and 14 August 2002.

In respect to each of the statements deposing that he had viewed such a document enshrining the alleged agreement it was West's response that he didn't understand specifically that a document purporting to reflect the oral agreement was being referred to and always understood that the reference to any agreement was referring to the commercial documentation which reflected the substance of the agreements involving all parties. He assumed that what was being referred to were the agreements that were signed on 25 February 1997. He said that he was called by his then solicitors to attend to sign the documents as a matter of urgency because of deadlines for filing of those affidavits at court, he only quickly scanned the documents before he signed them.

West was very excitable in cross-examination when these matters were put to him. He was critical of his lawyers in that these affidavits were presented to him for signing at the last minute and for not having advised him as to what document was being referred to. It was as a consequence of his unhappiness with his then solicitors and the fact that they had allowed a default judgment to be entered against him that he changed solicitors. Wood's counsel suggests that the admissions made in the affidavits are indicative of West's knowledge that in fact there was a written agreement as alleged prepared by West's solicitor on West's instructions. That is not the interpretation which West gave to the request for specific discovery. He being a layman was dependent upon his

(Page 29)

professional advisers insofar as explaining to him what the inquiry was directed at just as he was dependent on those advising him regarding the documentation evidencing the involvement and interest he was taking in the venture. Regrettably, on his evidence he was let down by those advising him so far as the requests for specific discovery were concerned. His explanation is plausible given that by reason of his discontent he did change solicitors.

In any event in the context of the whole of the evidence I am not able to accept the proposition put on behalf of Wood. Other independent evidence to which I refer later weighs against making a finding that there ever was such a written agreement [54] - [60].

84 Paragraph 2 of the respondent's affidavit sworn 22 February 2001 merely reproduces the order sought by the appellant in his application for specific discovery filed on 20 December 2000.

85 The respondent gave evidence that he signed the affidavits of 22 February 2001 and 8 April 2002 in the mistaken belief that the reference in the affidavits to the 'agreement' was a reference to the Transaction Documents (ts 238 - 239). The learned trial judge found, and the appellant concedes, that the respondent was naïve in commercial matters. It was open to his Honour to find that this explanation was plausible and credible.

86 On 14 August 2002, the respondent swore an affidavit retracting statements he had made in his earlier affidavit of 8 April 2002; in particular, the statement to the effect that he had personally entered into an agreement with the appellant personally. See pars 34 and 35 of the affidavit sworn 14 August 2002. The respondent gave evidence that he signed the affidavit of 8 April 2002 in reliance on the advice of his solicitors (ts 224 - 227). Again, it was open to the learned trial judge, in the circumstances, to find that the respondent's explanation was plausible and credible.

87 In par 26 of the affidavit sworn 14 August 2002, the respondent said:

The plaintiff has discovered a letter dated 24 December 1997 from E[N] Stamatiou and Co. This letter post-dates [sic] the date on the Deed. The letter refers to a meeting at Stamatiou's office between the Plaintiff and myself on 24 December 1997. The letter indicates that I was to acquire from the Plaintiff a 5% interest in GTAA and 20% interest in FTA. Quite clearly at least part of what was set out in that letter never occurred, as is evidenced by the Deed being subsequently created, as is evidenced by letter dated 27 January 1998 from Irdi and Associates referred to above. Annexed hereto and marked with the letters 'GKBW5' is a copy of that letter dated 24 December 1997.

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88 The appellant, in submissions before this court, contended that par 26 of the affidavit sworn 14 August 2002 supported the appellant's case. It is necessary, however, to read par 26 in the context of the affidavit as a whole. See, in particular, par 41, where the respondent deposes that, in his belief, there was never a separate agreement to acquire shares in Fuel-Tech or GTAA; and, if there was, the separate agreement was between the appellant and Go-Fa Pty Ltd. The affidavit, as a whole, plainly indicates that the respondent contested the existence of an oral agreement in the terms alleged by the appellant.

89 In my opinion, the learned trial judge was entitled to make the findings he did in relation to the affidavits in question. He did not err as alleged by the appellant.

90 Grounds 2.3 and 2.4 fail.

Grounds 2.5 and 2.6

91 It is convenient to consider these grounds together.

92 The learned trial judge found:

Furthermore, I have no reason to question the credibility of either Palermo or Stamatiou (who after all were Wood's own professional advisers) so far as their evidence that to their knowledge there never was any mention of such an agreement as alleged and no document to that effect [77].

93 The learned trial judge also made these findings:

As to the allegation in par 1(c) and (e) of the statement of claim concerning the alleged oral agreement or partly oral agreement there was no evidence from either party or Stamatiou at that meeting specifically as to what in fact was said. However, Stamatiou's letter (Exhibit 1) does indicate that there must have been some discussion to the effect as outlined in that letter. However that has to be read in the context of the instruction that Marinko was required to amend the Distribution and Marketing Licence Agreement to reflect the instalments for the defendant to acquire the interests in FTA and GTAA. Clearly, Stamatiou did not fully understand what the corporate structure was to be. That is evidenced by the fact that he said the FTA Trust will no longer be required. It was in fact an integral part of the whole corporate structure. In any event Palermo ignored the letter as did Hewitt. Palermo said that it was inconsistent with the previous instruction from Wood. Stamatiou acknowledged that he deferred to Palermo so far as that structure was concerned. In that respect little reliance can be placed on the content of Stamatiou's letter [89].

(Page 31)

94 Mr Stamatiou said, in evidence-in-chief, in relation to the meeting on 24 December 1997, relevantly:

Who had come to see you that day prior to you dictating the letter?---Mr Wood and Mr West came in, both of them, in the afternoon then and sat opposite my desk there and Mr Wood told me that Mr West was interested in purchasing a 20 per cent share in the company for 200,000.

Was there mention of any other shareholding aside from 20 per cent?---At the time, I asked them exactly what shareholder - what company, was it in [Fuel-Tech] or GTA and Mr Wood said, 'I want him to have 20 per cent in [Fuel-Tech] and a 5 per cent in GTA.'

What did Mr West say in the course of this?---Mr West sat there and silently accepted.

Did he say anything? One can't silently accept?---I can't recall.

Did you ask him anything?---I think I said to him, 'Look, are you in agreement with that,' or words to that effect, 'and in agreement do you accept those terms? Do you want to, you know, pay the 200,000 and get a 20 per cent interest in [Fuel-Tech] and a 5 per cent in GTA.'

G-T-A-A?---G-T-A-A. He said, 'Yes.' You know, he was happy to go through with the deal. Then I said, 'Okay, well, I'll dictate a letter in those terms to Mr Palermo to make sure that the documents reflected those shareholding.'

Was anyone present when you dictated the letter?---Yes, I dictated it whilst they were there.

Sitting across your desk from you?---Yes (ts 122).

95 Mr Stamatiou's evidence in cross-examination in relation to these issues was as follows:

Had you heard his name before?---No. I remember when they came in Mr Wood introduced him as his friend, very good buddies, he said that Mr West had just sold a farming property, he was cashed up, he wanted to invest money in this venture and that he would give him a 20 per cent interest in [Fuel-Tech] and a 5 per cent interest in GTAA provided that Mr West gave him 200,000.

Does it go something like this - and tell me if you disagree - that Mr West was introduced as somebody that was interested in investing in this particular venture?---That's right.

For a price of $200,000?---Correct.

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You'd never seen Mr West before, this was the first occasion. You've already secured your 5 per cent in the venture, hadn't you?---I did.

You were locked in there as was Mr Palermo?---Yes.

And this gentleman Mr West is being introduced as somebody that was also going to be an investing partner with you?---That's true.

What was your impression of Mr West when he came in?---A likeable sort of a fellow, my impression was that he may have been a bit naïve and I said - - -

Why did you form the impression that he was naïve?---Well, I don't know, people form impressions like that. I thought, 'Farmer, they don't seem to know too much about business' - you're asking me for an opinion - and I thought to myself, 'Just sold his farm, Mr Wood wants money to get into this deal, they're good buddies,' I thought to myself, 'Is this what you want to do?' And I said, 'Is this what you want to do?' He says, 'Yes' (ts 132).

96 In my opinion, Mr Stamatiou's evidence did not establish that he was aware of any agreement between the appellant and the respondent pursuant to which the respondent was to pay the appellant personally $200,000 for an interest in Fuel-Tech and GTAA. Mr Stamatiou said, at one point, the appellant told him that he (the appellant) would give the respondent a 20 per cent interest in Fuel-Tech and a 5 per cent interest in GTAA 'provided that [the respondent] gave him 200,000' (ts 132). However, other parts of Mr Stamatiou's evidence indicate that the proposal was for the respondent to invest $200,000 in the proposed venture for a 20 per cent interest in Fuel-Tech and a 5 per cent interest in GTAA without any specification as to whom the money would be paid (ts 122, 132); in particular, whether the money would be paid to the appellant personally as consideration for a transfer of shares from the appellant personally to the respondent, or whether the money would be paid to Fuel-Tech and GTAA as consideration for the allotment of shares.

97 Mr Stamatiou did not understand the business structure for the proposed venture. He deferred to the advice and recommendations of Mr Palermo (ts 122, 127, 128). Also, Mr Stamatiou recommended to the respondent, in the course of the meeting on 24 December 1997, that he obtain legal and accounting advice before committing to the transaction (ts 138).

98 In my opinion, it was reasonably open to the learned trial judge to find that, to the knowledge of Mr Stamatiou, there never was any mention of an agreement, as alleged in the statement of claim, and no document to that effect.

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99 Further, in my opinion, the learned trial judge's finding that there was no evidence from either party or Mr Stamatiou as to 'specifically' what was in fact said at the meeting on 24 December 1997, concerning the express terms of the alleged oral or partly oral agreement [89], was reasonably open to him. When the evidence of the appellant, the respondent and Mr Stamatiou in relation to that meeting is read as a whole, it is apparent that there was an absence of evidence as to what was 'specifically' said by each of them about the express terms of the alleged oral or partly oral agreement, as pleaded in the statement of claim.

100 I have already referred to Mr Stamatiou's evidence. See [94] - [97] above.

101 The appellant's evidence-in-chief in relation to the meeting with Mr Stamatiou was, relevantly, as follows:

Again, everyone agrees that on 24 December 1997, two days later, you and Mr West went to see Mr Stamatiou?---Correct.

Where did you speak with Mr Stamatiou?---In his office in Morley.

Who was present in his office?---Myself, Mr West, and Mr Stamatiou.

What did you tell Mr Stamatiou about your purpose in coming to see him that day with Mr West?---My purpose for the visit was to - for him to draw up documents to the fact that Mr West had bought shares in Fuel Tech and GTAA for $200,000 at 5 per cent for GTAA and 20 per cent in Fuel Tech.

Can you recall what Mr Stamatiou said in the course of your discussion with him?---Yes, he was taking notes and towards the end of the meeting he got in his dictaphone and took what we wanted to put in place and during that conversation he said he would get Palermo to do it because it could be - was a conflict of interest as well.

When you say at the end of the conversation he took his dictaphone, what do you mean by that? What - - -?---That he had spoke in it to what we needed to have put in place.

So he dictated into the dictaphone - - -?---Correct.

- - - in your presence with Mr West?---Correct.

Did Mr Stamatiou say anything to Mr West that you can recall in the course of that discussion?---That he was happy with the arrangements that were being put in place.

I'm sorry, if you could just - did Mr Stamatiou say anything to Mr West about - or say anything to Mr West in the course of the conversation?---Sorry, I don't understand the question.

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Did Mr Stamatiou say anything to Mr West in the course of that discussion?---Was he happy with the shareholdings of the - - -

Thank you. What was Mr West's reply to that?---Yes (ts 27 - 28).

102 The appellant was cross-examined briefly in relation to par 4 of Mr Stamatiou's letter dated 24 December 1997:

Then paragraph 4 says that, 'The consideration for the purchase of a 5 per cent interest in GTA Australia and a 20 per cent interest in FTA by Mr West from Mr Wood is $200,000?---Correct.

Again, at that stage you hadn't apportioned how that price was to be split between the two companies?---No.

And we also know from discussions earlier that you didn't know when the price was to be paid?---That's exactly right (ts 73 - 74).

103 The respondent's evidence as to the meeting with Mr Stamatiou was, in material respects, confined to evidence in relation to Mr Stamatiou's letter dated 24 December 1997. He said, in evidence-in-chief:

Who did you understand to be Mr Stamatiou's solicitor [sic]? Was he introduced to you as Mr Wood's solicitor or as a partner in the venture or in some other capacity?---He was introduced to me as Mr Wood's solicitor and a partner in the venture.

There was a reference in the letter, paragraph 1. There's an apportionment of shares in the shareholding structure of [Fuel-Tech], 5 per cent to Mr Stamatiou, 8.5 per cent, Steven James Wood, 70 per cent and Geoffrey Kenneth West, 20 per cent. Did that accord with your discussion with Mr Wood, the 20 per cent shareholding?---That's correct. Yes.

There's a reference to FTA Trust. Did you know anything about an FTA Trust at that meeting?---No.

There was a reference to GTA Australia and the shareholding structure will change because Steven Wood is giving 5 per cent of his shareholding to you?---I didn't understand any of what this is about. All I knew were - there was GTA which was going to be manufacturing arm and [Fuel-Tech] which was going to be a selling arm; that's all I knew at that particular point.

Paragraph 4 talks about the price of $200,000 for a 5 per cent interest in GTA and a 20 per cent interest in FTA. What do you say about that?---I wasn't going to commit anything until I spoke with my accountant who could advise me and - - -

MacMILLAN, DR: Objection this was not put to - - -

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GROVES DCJ:

He's not saying that he said that to Mr Stamatiou.

MacMILLAN, DR: Well, then the question wasn't adequate. Perhaps the objection should be directed to the question. …

ARNS, MR: Paragraph 5 there talks about a distribution and marketing licence agreement. Did you discuss that with Mr Stamatiou and what did you understand all of that to be about?---I didn't understand any of that at all (ts 185).

104 Grounds 2.5 and 2.6 fail.

Ground 2.7

105 The learned trial judge made these findings as to the alleged agreement:

That this is what was proposed is supported by the independent evidence of Palermo in that it was his evidence that what he was told by Wood at the meeting prior to Christmas that he had another investor involved in the venture and '…that West would invest $200,000 on a progressive basis.' That evidence went unchallenged. That is something different from saying as Wood claims that he personally was to be paid $200,000. That the payment was to be made on a progressive basis is reflected in the FTA Trust Deed subsequently prepared. That evidence is clearly indicative that Wood was introducing West as an investor in the venture and not that he, Wood, was personally selling a part of his interest to West [92].

106 I have dealt, in substance, with ground 2.7 in the course of my reasons for finding that grounds 1.1, 1.2, 1.3, 2.1 and 2.2 have not been made out. It is unnecessary to reproduce or elaborate on those reasons.

107 Ground 2.7 fails.

Ground 2.8

108 The learned trial judge made findings as to the appellant's awareness of the corporate structure and arrangement:

Each of Stamatiou and Palermo and Marinko (at the instruction of Palermo) were all acting on the instructions of Wood. Their knowledge of the corporate structure and the arrangements as represented by the transaction documents must be taken as the knowledge of Wood also. That is, he must be taken to have been aware (despite his apparent naivety in such matters) as to what the arrangement was. Yet he never mentioned nor raised with any of them that there was another arrangement as between he and West that West was to pay him personally $200,000 for the interests to be acquired by West in the venture [94].

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109 It is apparent, from the appellant's evidence at trial, that he did not understand the significance of the FTA Trust Deed. Also, he did not understand the distinction between shares in a corporation and units in a unit trust. The appellant was unable to offer any explanation for his having signed the FTA Trust Deed, or otherwise reconcile the express terms of the Trust Deed, with his pleaded case that the sum of $200,000 was payable by the respondent personally to the appellant personally.

110 The learned trial judge, in stating that the appellant 'must be taken to have been aware (despite his apparent naïvety in such matters)' as to the corporate structure and arrangements embodied in the Transaction Documents, was inferring, based on each of Mr Stamatiou and Mr Palermo having acted on the appellant's instructions, that the appellant must, in fact, have known the basic structure and arrangements. His Honour concluded that, notwithstanding the existence of that knowledge, and inconsistently with his case at trial, the appellant never raised with Mr Stamatiou or Mr Palermo (or, indeed, Mr Marinko) the alleged agreement under which the respondent personally was to pay him personally $200,000.

111 The findings of the learned trial judge were reasonably open to him and there is no basis in the evidence or his Honour's reasons for setting them aside.

112 Ground 2.8 fails.

Ground 2.9

113 I have set out, at [61] above, the learned trial judge's recounting of Mr Palermo's evidence that he was told by the appellant 'at the meeting prior to Christmas that he had another investor involved in the venture' and that 'West would invest $200,000 on a progressive basis'. His Honour noted that this evidence was of an arrangement different from the alleged agreement under which the respondent personally was to pay the appellant personally the sum of $200,000. Also, as his Honour noted, the payment of the $200,000 on a progressive basis is reflected in the FTA Trust Deed, which was prepared after the conversation in question. His Honour concluded that Mr Palermo's evidence clearly indicated that the appellant was introducing the respondent as an investor in the venture and not that he, the appellant, was personally selling a part of his interest to the respondent [92].

114 The evidence of Mr Palermo was unchallenged in this respect. The learned trial judge was entitled, on the basis of Mr Palermo's evidence, to

(Page 37)

make the findings and arrive at the conclusions which are attacked by ground 2.9.

115 Ground 2.9 fails.

Ground 2 generally

116 For the reasons I have given, in the course of examining grounds 2.1 - 2.9, the learned trial judge did not err in fact, as alleged in ground 2.

Ground 3 of the appeal

117 The learned trial judge made these findings:

As to par 5 of the statement of claim there was no evidence from any of those present at the signing of the transaction documents at Palermo's office that any direction as alleged or at all was given. On Wood's evidence he ascertained upon enquiry that Go-Fa Pty Ltd was the corporate entity which was engaging in the venture. Such discussion does not amount to a clear and unambiguous direction [88].

118 The appellant said in evidence that he first became aware of the existence of the company, Go-Fa Pty Ltd, at a meeting held in February 1998 for the purpose of executing the Transaction Documents. The appellant's evidence-in-chief was, relevantly, as follows:

When did you first become aware of the existence of a company called Go-Fa Pty Ltd which was the trustee for the Go-Fa Trust?---When I went to sign the documents in John Palermo's office I actually asked Geoff who that was and he said that's where I want my shares put.

You asked Geoff - - -?---West.

- - - West what the company was?---Correct.

And he said that's where he wants the shares put?---Yes.

Did he tell you what the company was?---His family trust (ts 31 - 32)

His evidence was not that at the meeting he received a 'direction' from the respondent.

119 In any event, it is immaterial whether the respondent gave the alleged direction or not.

120 The respondent's case at trial was that:

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(a) His participation in the proposed venture, and the means by which he was to acquire an interest in the venture, were conditional upon his receiving legal and accounting advice. The advice he received was to participate in the venture through a corporation and not personally (ts 185, 186, 210).

(b) Go-Fa Pty Ltd was the corporation through which the respondent participated in the venture. It subscribed for the shares and the units.

(c) After the meeting at Mr Stamatiou's office on 24 December 1997, the respondent obtained advice from his accountant, Mr Hewitt. The advice was to the effect that the respondent should participate in the venture through a corporation and not personally (ts 258, 265).

(d) Go-Fa Pty Ltd was a 'shelf company' which the respondent acquired for the purpose of participating in the venture.

(e) The Transaction Documents executed in February 1998 demonstrate that 'the respondent's participation' in the venture was through the corporation, Go-Fa Pty Ltd.

121 The appellant's contention that the respondent remains personally liable to pay $200,000 cannot be made out. First, it is apparent from the Transaction Documents that it was Go-Fa Pty Ltd (and not the respondent) that was subscribing for an interest in the venture. Secondly, the Transaction Documents provide for Go-Fa Pty Ltd (and not the respondent) to pay $200,000 for units in the FTA Trust. Thirdly, the appellant did not transfer any shares to the respondent or Go-Fa Pty Ltd. Rather, Go-Fa Pty Ltd subscribed for shares and units. Fourthly, for the purpose of endeavouring to re-position his case to overcome the fact that the appellant did not transfer any shares to either the respondent or Go-Fa Pty Ltd, the appellant amended his statement of claim to assert that the respondent's liability to pay $200,000 was, in the alternative, a 'fee' for causing shares to be 'transferred or issued'. See the learned trial judge's reasons at [62] - [72].

122 Ground 3 fails.

Ground 4 of the appeal

123 The learned trial judge found:

Even if there was an agreement executed by the parties as alleged it was superseded by the express provisions of the Transaction Documents [96].

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124 One of the Transaction Documents executed by the parties to the venture, including the appellant, in February 1998, was the Umbrella Agreement.

125 The Umbrella Agreement included an express term that:

(a) the provisions of the Transaction Documents comprise the whole of the agreements between the parties: cl 1.2(h);

(b) the parties agree there are no further agreements: cl 1.2(h)(2);

(d) the Transaction Documents supersede all prior documents and understandings, whether oral or written, between the parties relating to the subject matter of the Transaction Documents.

126 Another of the Transaction Documents executed by some of the parties to the venture, including the appellant, in February 1998, was the Distribution and Marketing Licence Agreement. This agreement provided that the whole agreement between the parties in relation to its subject matter is contained in the agreement: cl 1.2(h). Also, cl 1.2(h)(2) provides that the implication of further agreements is negatived.

127 In my opinion, the learned trial judge found that even if an agreement as alleged had been made by the appellant and the respondent on or about 22 or 24 December 1997, that agreement was, by mutual consent, replaced by the express provisions of the Transaction Documents.

128 The provisions of the Umbrella Agreement and the Distribution and Marketing Licence Agreement, which I have set out at [125] - [126] above, would not have operated to terminate an earlier agreement if the appellant and the respondent had intended that the earlier agreement should survive and operate concurrently with the Transaction Documents. However, on my understanding of the learned trial judge's reasons as a whole, he found that if there was (contrary to his opinion) an agreement made between the appellant and the respondent as alleged, then, subsequently, with their mutual consent, that agreement was superseded by the express provisions of the Transaction Documents.

129 Grounds 4.1, 4.2, and 4 generally, fail.

Ground 5 of the appeal

130 The learned trial judge made these findings:

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Wood's claim that he was to personally receive the sum of $200,000 for the interest in the venture to be acquired by West, namely the allotment of shares, would put Wood in breach of his duties to the beneficiaries being the unit holders in the FTA Trust. That is premised on the basis of Wood's concession that only one amount of $200,000 was to be the investment by West for his interest to be acquired in the venture. At all times prior to August 1999 Wood was the sole director of FTA as trustee of the FTA Trust. In that capacity FTA owed fiduciary duties to the Trust and the beneficiaries of the Trust. If on Wood's account he was to personally receive the $200,000 then FTA would be in breach of its duty so far as allocating units in the Trust to Go Fa Pty Ltd without receiving payment for those units as outlined in the First Schedule to the FTA Trust Deed. In that respect Wood as director of FTA as trustee of the FTA Trust would be in breach of the trustee's duty

inter alia

to adhere to the terms of the Trust Deed, not to abuse his position by making a means of profit or benefit to himself and to account for benefits obtained in circumstances where there was an actual or significant possibility of contact between personal interest and fiduciary duty (which is the case here) [99].

131 The appellant said in evidence that the maximum amount payable by the respondent and/or his nominee, Go-Fa Pty Ltd, for shares and units in connection with participation in the venture was $200,000 (ts 101).

132 The appellant did not contend that the respondent was obliged to pay $200,000 to the appellant and, in addition, Go-Fa Pty Ltd was obliged to pay $200,000 to the trustee of the FTA Trust.

133 At all material times before August 1999, the appellant was the sole director of Fuel-Tech, which acted as trustee for the FTA Trust. Further, at all material times before August 1999, the appellant was the sole director of GTAA.

134 The appellant's contention that he was personally to receive $200,000, whether as a fee for causing shares/units to be allotted to the respondent or his nominee, or as the price for those shares/units, is unsustainable. First, it conflicts with the provisions of the FTA Trust Deed which required Go-Fa Pty Ltd (and not the respondent) to pay $200,000 to Fuel-Tech, in its capacity as trustee, by the instalments set out in the trust deed. Secondly, it conflicts with the express terms of the Transaction Documents. Thirdly, it is inconsistent with the learned trial judge's finding that the appellant's evidence in relation to the critical elements of his claim was, at best, dubious. Fourthly, it is inconsistent with the learned trial judge's finding that the respondent's account of his conversations and dealings with the appellant was to be preferred.

135 The learned trial judge did not err as alleged.

(Page 41)

136 Ground 5 fails.

Conclusion

137 I would dismiss the appeal.

138 LE MIERE AJA: I agree with the reasons of Buss JA.

Wood v West

[2008] WASCA 242

28 NOVEMBER 2008

WOOD -v- WEST [2008] WASCA 242