Air Tahitii Nui Pty Ltd v McKenzie

onshire and R Havelock (eds), The Impact of Equity and Restitution in Commerce (Hart Publishing, Oxford, 2018) Category: Principal judgment Parties: J and E Vella Pty Ltd (ACN 077 719 049) (First Plaintiff) Joseph Gregory John Vella (Second Plaintiff) Brian Charles Hobson (First Defendant) Hynadam Pty Ltd (ACN 002 478 828) (Second Defendant) Brett Soper (Third Defendant) Mechita Pty Ltd (ACN 063 519 915) (Fourth Defendant) Beverage Freight Services Pty Ltd (ACN 097 919 769) (Fifth Defendant) Beverage Distribution Australia Pty Ltd (ACN 160 140 287) (Sixth Defendant) Hynadam Nominees Pty Ltd (ACN 160 135 900) (Seventh Defendant) McIntyre Holdings NSW Pty Ltd (ACN 160 137 271) (Eighth Defendant) Representation: Counsel: Mr G Sirtes SC with Mr D Birch (Plaintiffs) Mr M Ashhurst SC with Ms M Castle (Defendants) Solicitors: Yates Beaggi Lawyers (Plaintiffs) McEvoy Legal (Defendants) File Number(s): 2015/157614 Publication restriction: N/A

Introduction

1. The fifth defendant in these proceedings, Beverage Freight Services Pty Ltd (BFS), was incorporated in August 2001. From the time of its incorporation until August 2012, BFS provided freight services to Cadbury Schweppes Pty Ltd and Schweppes Australia Pty Ltd (together, Schweppes).
2. The founding shareholders of BFS included the first plaintiff, J & E Vella Pty Limited (JEV), the second defendant, Hynadam Pty Ltd (Hynadam) and the fourth defendant, Mechita Pty Ltd (Mechita).
3. At the time BFS was incorporated, each of its founding shareholders operated its own freight services business. It is common ground that the founding shareholders and/or directors entered into an agreement when BFS was incorporated about the manner in which Schweppes work contracted to BFS would be allocated between BFS shareholders, invoiced and paid (the 2001 agreement). There is a dispute about the parties to and terms of the 2001 agreement and whether the 2001 agreement established a partnership between the shareholders of BFS and/or the persons standing behind those shareholders.
4. The proceedings arise out of certain events that culminated in a meeting concerning BFS on 28 August 2012, the incorporation of the sixth defendant, Beverage Distribution Australia Pty Ltd (BDA) immediately after that meeting and the subsequent performance by BDA of Schweppes delivery work that had previously been performed by JEV, Hyndam and Mechita through BFS.
5. There is a dispute about what was resolved or agreed at the meeting on 28 August 2012. The plaintiffs claim that the subsequent events constituted a breach of the 2001 agreement and/or a breach of fiduciary duties allegedly owed by Mr Brian Hobson (the first defendant) and Mr Brett Soper (the third defendant) to the plaintiffs.
6. For the reasons that follow, the plaintiffs' claims fail.

Dramatis personae

1. As will emerge from the detailed summary of the evidence and findings of fact below, the following persons and entities have played a role in the events giving rise to these proceedings.
2. The first plaintiff, JEV, was a founding shareholder of BFS and remained a shareholder at all relevant times.
3. The second plaintiff, Mr Joseph Vella, was a director of JEV at all relevant times. He and his wife, Mrs Elizabeth Vella, each owned 50 per cent of the shares in JEV at all relevant times. Elizabeth Vella is not a party to these proceedings.
4. Mr Michael Vella is the son of Joseph and Elizabeth Vella. At times relevant to these proceedings, he worked for JEV as a driver and also participated in the management of the business.
5. Michael Vella became a director of BFS when that company was incorporated in August 2001 and remained a director at all times relevant to these proceedings. It is common ground that, in the events giving rise to these proceedings, he acted as an agent for JEV. Michael Vella is not a party to these proceedings.
6. The second defendant, Hynadam, was also a founding shareholder of BFS and remained a shareholder at all relevant times. The first defendant, Brian Hobson, was the sole director and a shareholder of Hynadam and a director of BFS at all times relevant to these proceedings.
7. The fourth defendant, Mechita, was also a founding shareholder of BFS and remained a shareholder at all relevant times. Mechita was owned by the third defendant, Brett Soper, together with his wife Mrs Deborah Soper and his business partner Mr Ralph Sobara. Brett Soper was the manager of Mechita at the time of the relevant events in 2001 and was a director of that company from June 2003 until 17 June 2019. He was also a director of BFS at all relevant times.
8. BFS was incorporated on 22 August 2001 with six equal shareholders: JEV, Hynadam, Mechita, Alderton Transport Pty Ltd (Alderton Transport), Evermay Pty Ltd (Evermay) and Sterling Freightlines Pty Ltd (Sterling).
9. Mr Glen Alderton was a director and shareholder of Alderton Transport. Mr Stephen Phillips was a director and shareholder of Evermay. Glen Alderton and Stephen Phillips were appointed as directors of BFS, together with Michael Vella, Brian Hobson and Brett Soper, when BFS was incorporated. Glen Alderton ceased to be a director of BFS on 23 October 2003 and Alderton Transport ceased to be a shareholder of BFS at about the same time. Stephen Phillips ceased to be a director of BFS on 23 September 2010. Although Evermay had no involvement in performing the freight services provided by BFS to Schweppes after that time, it remained a shareholder of BFS. Evermay was deregistered on 10 August 2014.

Introductory observations about the testimony of witnesses

1. Each of the witnesses in these proceedings gave evidence about events and conversations that occurred in 2012 or earlier. As the plaintiffs submitted, it is therefore necessary to be mindful of the following well-known observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319 in assessing the evidence of each witness: "… human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience."
2. The factors referred to by his Honour require primary emphasis on the objective surrounding facts that are either undisputed or established by contemporaneous documents, and the inherent probabilities and improbabilities: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [28]-[31] (Gleeson CJ, Gummow and Kirby JJ); Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [77] (Bell P, Leeming JA and Emmett AJA agreeing). Indeed, in any commercial litigation, contemporaneous documents "generally furnish the most reliable source of evidence as to what occurred or, at the very least, provide a generally reliable reference point from which to assess the reliability of witness testimony". Although the accuracy and reliability of witness testimony must be treated with caution given the fallibility of human memory, witness testimony may still be of value and importance, including by providing evidence of the context in which relevant documents and events must be understood: ET-China.com International Holdings Ltd v Cheung (2021) 388 ALR 128; [2021] NSWCA 24 at [25]-[29] (Bell P, Bathurst CJ agreeing).
3. The following observations of Hammerschlag J (as the Chief Judge in Equity then was) in John Holland Pty Ltd v Kellogg Brown & Root Pty Ltd [2015] NSWSC 451 at [94]-[96] [1] are apposite in this case: "Where a party seeks to rely upon spoken words as a foundation for a cause of action, including a cause of action based on a contract, the conversation must be proved to the reasonable satisfaction of the court which means that the court must feel an actual persuasion of its occurrence or its existence. Moreover, in the case of contract, the court must be persuaded that any consensus reached was capable of forming a binding contract and was intended by the parties to be legally binding. In the absence of some reliable contemporaneous record or other satisfactory corroboration, a party may face serious difficulties of proof. Such reasonable satisfaction is not a state of mind that is obtained or established independently of the nature and consequences of the fact or facts to be proved. The seriousness of an allegation made, inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question of whether the issue has been proved to the reasonable satisfaction of the court. Reasonable satisfaction should not be produced by inexact proofs, indefinite testimony, or indirect inferences … The sensation of feeling an actual persuasion, after a contest, that an event has happened or that something exists is one which is well known and recognised by experienced trial judges for what it is. [The plaintiff] has the onus of establishing the agreement for which it contends. This entails proving to the reasonable satisfaction of the court that the words said to give rise to the agreement were actually said, and that the alleged consensus was capable of forming a binding agreement and was intended by the parties to be legally binding."

The 2001 agreement establishing BFS

1. Prior to 2001, JEV, Hynadam, Mechita, Evermay and Alderton Transport each operated a freight services business in the beverage freight transport industry. Some of them had a long history of providing freight services to Schweppes. JEV had commenced providing services to Schweppes more recently following Schweppes' acquisition of the rights to distribute Pepsi products that JEV had been transporting for several years.
2. In about 2000, Brian Hobson and Michael Vella each became aware that Schweppes wished to have all of its freight services provided by one company rather than contracting with several freight companies. Brett Soper and his business partner Ralph Sobara became aware of this through Brian Hobson. As the plaintiffs submitted, this was a matter of administrative convenience for Schweppes.
3. In January 2001, Brian Hobson, Brett Soper, Ralph Sobara, Joseph Vella, Michael Vella, Stephen Phillips and Glen Alderton met at Ralph Sobara's home in Greystanes (the Greystanes meeting).
4. Brian Hobson and Brett Soper gave evidence of the discussion at the Greystanes meeting in different terms, but there is no material difference between their respective accounts. Joseph Vella agreed with Brett Soper's account of the meeting. Michael Vella gave evidence of a series of statements that he says were made during the course of the Greystanes meeting, the substance of which does not differ from the evidence of Brian Hobson and Brett Soper in any material respect. In cross-examination, Michael Vella agreed with Brett Soper's account of the meeting. Brett Soper's evidence is that: "At the beginning of the Greystanes Meeting, Brian said words to the following effect: 'As you all know, Schweppes is buying Pepsi. I have been talking with Schweppes about making a new company that provides all of the freight transport services. Would you all like to be a part of it? If we can sort it out together we can make a good business and make some money. This is the only way forward now. If you want to go it by yourself there will not be any work with Schweppes or Pepsi.' I said words to the effect of: 'You know I want to be a part of this. I think making one company that provides all of the freight is a good idea.' Everyone else present at the Greystanes Meeting also said words to the effect of: 'Yes this is a good idea.' Brian then said words to the following effect: 'We will need to set up a company that the work will be allocated to and that can invoice Schweppes. Our companies can then be paid from that company. Everyone's companies can have an equal share in the company. The directors of each of the companies can be directors of the new company. We will equal out the work from Schweppes. Everyone will have equal work as long as they show up. If we need to get subcontractors in to fill in any gaps we can do that. We also need to make sure we meet any requirements of Schweppes. If they want us to do something we have to do it.' Everyone at the Greystanes Meeting, including myself, said words to the effect that we agreed."

Management and operation of the business of BFS: 2001-2012

1. On 10 September 2001, Brian Hobson and Ralph Sobara wrote to Schweppes on BFS letterhead setting out the rates and terms on which BFS offered to provide bulk delivery and stock transfer haulage services to Schweppes. The letter stated: "At your request all the bulk owner-drivers, who have until now been individually contracted to Schweppes Cottees at Alexandria and PCBA at Huntingwood, have formed a new Company. This company Beverage Freight Services P/L has been formed specifically to meet the stock transfer and bulk delivery services Schweppes Cottee's requires in Sydney. This proposal is offered by the new company."
2. After setting out the proposed rates and terms, the letter concluded: "Beverage Freight Services is offering to carry out all bulk deliveries and stock transfers. Obviously if all stock transfers were offered to Beverage Freight Services the following advantages would be available to Schweppes Cottees: 1. A single management team to manage all bulk truck movements. 2. A single invoice covering all bulk delivery costs. 3. Opportunity to maximise vehicle utilisation and find cost efficiencies that can be passed on to Schweppes Cottees in a reduced rate. If Schweppes Cottee's management decide not to engage Beverage Freight Services to carry out the stock transfer work the services of the individual bulk owner-drivers for delivery work will be available to Schweppes Cottee's and appropriate rates and conditions can be negotiated."
3. It is common ground that BFS supplied freight services to Schweppes under various fixed term contracts from about September 2001 until August 2012.
4. Schweppes issued work orders to BFS, and BFS then allocated the work to its shareholders or, on some occasions, subcontracted the work to a third party. The allocation of work was determined by Ralph Sobara, Brian Hobson or employees of BFS. Those matters are not the subject of any dispute. I do not find it necessary to resolve the dispute about who was performing the allocation work on a day to day basis at specific times during the period from 2001 to 2012.
5. The parties adduced evidence directed to the question of whether Schweppes work was in fact allocated equally to the BFS shareholders. That evidence was directed to the plaintiffs' pleaded claim that Brian Hobson and Brett Soper had breached fiduciary duties allegedly owed to JEV and Joseph Vella by failing to allocate Schweppes delivery jobs, or the "higher net income deriving jobs", equally between JEV, Hynadam and Mechita. The plaintiffs abandoned that claim during the hearing and it is therefore not necessary to make any findings about whether Schweppes work was in fact allocated equally between the BFS shareholders according to any of the various concepts of equality deployed by the plaintiffs at various times before abandoning that claim. As will become apparent later in these reasons, the ongoing dispute about work allocation was the subject of discussions prior to and at the Ingleburn meeting and the existence of the dispute and the occurrence of those discussions informs my assessment of the evidence about what was said and done at the Ingleburn meeting.

Disputes between BFS shareholders as at August 2012

BFS shareholders as at August 2012

1. By August 2012, Sterling and Alderton Transport were no longer shareholders of BFS and Glenn Alderton was no longer a director. Evermay had ceased doing Schweppes delivery work through BFS in about 2010 as a result of certain health problems suffered by Stephen Phillips. ASIC records show that Stephen Phillips ceased to be a director of BFS on 23 October 2010. However, Evermay remained a shareholder of BFS as at August 2012. There is no evidence that any steps had been taken by the active shareholders to request Evermay to transfer or relinquish its shares in BFS, or that any such request had been resisted by Evermay.
2. Thus, of the original BFS shareholders, only JEV, Hynadam and Mechita were undertaking Schweppes delivery work through BFS by August 2012.
3. Two companies with similar names to BFS had been established in the period since the incorporation of BFS.
4. Beverage Logistics Pty Ltd (BLPL) was incorporated on 21 October 2004 with Brian Hobson, Ralph Sobara and Brett Soper as its shareholders and directors. Brett Soper was unsure why BLPL was incorporated but thought that it might have been intended to undertake bulk freight delivery work. Brian Hobson could not recall the reason why BLPL was incorporated, but said that the company had never traded. The plaintiffs do not suggest that BLPL traded. By 2012, the company was no longer in existence, having been deregistered on 12 March 2010.
5. Beverage Logistics Services Pty Ltd (BLS) was incorporated on 7 February 2011 with Brian Hobson, Brett Soper and Michael Vella as its equal shareholders and directors. There is no evidence and no allegation is made by the plaintiffs that BLS ever entered into any freight contract or operated any business.
6. Brian Hobson gave evidence in cross-examination that BLS was "possibly" incorporated in February 2011 because "we thought that we were going to have trouble originally with Mr Phillips retiring out of that business". Brett Soper could not recall why BLS was incorporated but accepted in cross-examination that one the reasons may have been to create an entity that included only the active participants in BFS's business as shareholders. When it was put to Brian Hobson in cross-examination that, in August 2012, "[t]here was still the issue that his [Stephen Phillips'] shares were on the books, so to speak", he answered: "Nobody ever raised that issue to me, ever". I understand Brian Hobson to have been referring to August 2012 when he gave that answer.

Disputes about work allocation

1. Joseph and Michael Vella had been raising concerns for some time prior to August 2012 about whether Schweppes delivery work was being allocated equally between the BFS shareholders.
2. During the final hearing of these proceedings, the plaintiffs abandoned their claim that Brian Hobson and Brett Soper breached fiduciary duties allegedly owed to the plaintiffs by not allocating work equally. In those circumstances, it is not necessary to make findings of fact about work allocation prior to August 2012. It suffices to note that the plaintiffs' allegations were strenuously maintained in the discussions leading up to and during the Ingleburn meeting, as referred to in detail at [130]-[223] and [272] below. As referred to at [151] below, Michael Vella and Joseph Vella believed that Brian Hobson and Brett Soper were greedy and dishonest in the manner they allocated Schweppes delivery work between BFS shareholders. The plaintiffs continued to maintain those allegations in these proceedings, claiming that Brian Hobson and Brett Soper had breached fiduciary duties allegedly owed to JEV and/or Joseph Vella in allocating work, until they abandoned those claims during the final hearing.

Disputes about the Arndell Park lease

1. It is common ground that BFS began transporting Schweppes bottled water products labelled "H2O to Go" from Albury to Sydney in about March 2012. In June 2012, Brian Hobson and Brett Soper caused BFS to enter into a lease of warehouse premises at Arndell Park in anticipation of that particular line of work expanding. Brian Hobson and Brett Soper guaranteed the obligations of BFS under the lease, and signed the lease as directors of BFS and in their personal capacity as guarantors.
2. There was a dispute between Michael Vella on the one hand, and Brian Hobson and Brett Soper on the other hand, about whether BFS should enter into the lease and whether Michael Vella should provide a guarantee together with the other two directors of BFS. The plaintiffs contend that this dispute arose before Brian Hobson and Brett Soper executed the lease on behalf of BFS and as guarantors. The defendants initially contended that the dispute arose only after the lease had already been executed, but ultimately accepted that the dispute may have been known to Brian Hobson and Brett Soper when they executed the lease.
3. It is not necessary to make findings about the order of events. What is relevant for present purposes is that, in August 2012, Michael Vella was very upset because he considered that Brian Hobson and Brett Soper had caused BFS to enter into the Arndell Park lease without his agreement. This was another issue that Michael Vella attributed to greed and dishonesty on the part of Brian Hobson and Brett Soper, as referred to at [154] below.
4. Michael Vella gave evidence that he had a conversation with Brian Hobson and Brett Soper in about August 2012 in which he complained that they had caused BFS to enter into the lease without his agreement and in circumstances where he did not want BFS to have its own warehouse because JEV already had a warehouse. He told Brian Hobson and Brett Soper words to the effect that "this is not good, this is not right, our friendship's ending right now. Now it's going to become legal …". Brian Hobson suggested that they arrange for an independent person to facilitate a discussion "to help sort it out" rather than taking "the legal route". Michael Vella deposed that he agreed with Brian Hobson's suggestion. This led to the meetings with Robert Fielding referred to below at [131] followed by the Ingleburn meeting facilitated by Peter Versluis and Robert Fielding on 28 August 2012.

Disputes about dealings with Schweppes concerning speed limiting of trucks

1. On 2 August 2012, Mr Aikin sent an email to Brian Hobson, Brett Hobson and Brett Soper attaching a document entitled "Beverage Logistics Services -Chain of Responsibility Infringement" (the COR Notice). The document stated: "I refer to my email of 23rd August, 2011 in which I requested all transport service providers to verify 1. All vehicles required to have the speed limiter devices fitted actually have the devices fitted 2. The speed limiter devices are set to a maximum of 100 kilometres per hour 3. The speed limiter devices are inspected during regular maintenance to ensure they have not been tampered with During analysis of Beverage Logistics Services (BLS) KPI data for the period of April to June 2012, it was noted that particular vehicle's [sic] of BLS are consistently exceeding the 100 kilometres per hour speed limited for heavy vehicles. There were 584 instances of BLS vehicles exceeding 105 kilometres per hour which is the tolerance level Schweppes Australia has allowed for overrun instances on a downhill decline. I have attached a spreadsheet which details the incidents Conclusion It is my belief that the vehicles detailed in the attached report: • Either do not have speed limiters fitted or, • If speed limiters have been fitted, they have been tampered with to allow the 100kilometre an hour speed limit to be exceeded • The drivers of these vehicles routinely exceeded the speed limit of 100klms per hour Immediate Action Vehicles with registration numbers: ○ AE60BE ○ BB00SB ○ BB01SB ○ BE22JM ○ BK03EK ○ JNE001 ○ JNE013 ○ JNE019 ○ MEC400 ○ MEC500 ○ MEC600 ○ MEC800 ○ MEC900 1. Are immediately suspended from performing work for Schweppes Australia 2. These vehicle's speed limiters are to be immediately serviced and reset to 100 kilometres per hour 3. Certification is provided by a recognised and accredited mechanical repair facility to acknowledge that the speed limiters have been reset and adjusted. 4. A company memo is circulated to all drivers informing all of the requirement to adhere to legislative speed limits and fatigue management legislation, and that any driver tampering with speed limiter devices will be terminated immediately 5. BLS are to provide documentary evidence of all the above processes having been completed prior to any of the listed vehicles being allowed to recommence working for Schweppes"

Involvement of Risk Connect Australia

1. It is common ground that tensions between the BFS shareholders led to the engagement of Peter Versluis and Robert Fielding. There is no dispute that Brian Hobson made the initial approach to Peter Versluis. Brian Hobson gave evidence that, at the suggestion of Mr Frank Zonaras (the accountant for BFS), he contacted Peter Versluis in about late July 2012 to see if he was interested in working with the BFS shareholders to explore ways in which they might resolve their disagreements. Peter Versluis was interested, and his involvement in turn led to the involvement of Robert Fielding. Both men are associated with a company or business known as Risk Connect Australia and both of them attended the Ingleburn meeting.
2. Robert Fielding gave evidence that, between late July and early to mid-August 2012, he had an initial meeting with Brian Hobson, followed by a meeting with Brian Hobson and Brett Soper together with Peter Versluis (which the parties agree occurred on 24 July 2012) and a separate meeting with the Vella family (in about early to mid-August 2012). After those meetings, Robert Fielding created a discussion paper dated 11 August 2012 that he emailed to Michael Vella, Brett Soper, Brian Hobson and Frank Zonaras. There is no dispute between the parties about that sequence of events.
3. Before addressing the substance of that discussion paper and the subsequent meetings between Robert Fielding and BFS shareholders leading up to the Ingleburn meeting, it is convenient to deal with a submission made by the plaintiffs in relation to the 24 July 2012 meeting between Robert Fielding, Peter Versluis, Brian Hobson and Brett Soper.
4. After the 24 July 2012 meeting with Brian Hobson and Brett Soper, Peter Versluis sent an email to Brett Soper attaching "some Notes and suggestions" and requested that he "review the attached and provide as much detail as you can". The name of the attached document referred to in the email was "Risk Questionnaire 250712". That email, without the attached document, was annexed to Robert Fielding's affidavit sworn on 15 September 2017, being his second affidavit sworn in these proceedings. The plaintiffs submitted that: "The Court should conclude that Mr Fielding's affidavits were prepared on the basis that relevant documents which did not assist the defendants would not be included. On that basis, the Court can readily infer that this document would not have assisted the defendants' case. There is no doubt that it is open to draw a Jones v Dunkel inference, by the failure to produce that evidence … The inference is available that Mr Hobson told Mr Versluis and Mr Fielding about the intention to move the business over to a different company, jointly owned with Mr Soper and the Vellas, as early as the first meeting in late July 2012."

Operations Allocation 1.11 We have been provided with an overview of the difficulties encountered by the parties pertaining to Beverage Freight Services Pty Limited, particularly in relation to Operations, Income Distributions, Lost Earnings, Warehousing and Guarantees. It will be relevant to finalise the matter of invoicing and payments to BFS by the three Director based companies; and the matter of the lease entered into for the property at Arndell Park. Income Distributions Lost Earnings Warehousing Guarantees

1.12 A company "Beverage Logistics Pty Limited" (BLPL) has been incorporated. The Directors are Michael Vella, (MV) Brett Soper (BS) and Brian Hobson (BH). The Secretary is MV. The Shareholders are MV, BS & BH equally. Consideration is yet to be confirmed and transition of ownership to others to be discussed. New Operational Company

1.13 BLPL is proposed to conduct ongoing operations of the beverage logistic operations provided it can secure a new contract from Schweppes. Refer Obtain new contract from Schweppes 1.15

1.14 The directors/shareholders require equality in the distribution of work and profit distributions, including compensation for lost earnings in prior periods. [See also 1.11] Refer 3.12 Directors require equality in all things.

1.15 BLPL to enter into an agreement with Schweppes for future distribution. Approach should be made to Schweppes. Refer Obtain new contract from Schweppes. 1.13

2.10 The Directors state that each of them own/control 4 each of identical trucks suitable for company requirements. Those trucks are to be applied for the exclusive use of BLPL. Refer Each Director to Supply 4 identical trucks for exclusive use of BLPL. 2.12

Staff Management, 2.11 BLPL to employ all staff, including an allocator. BLPL is to be responsible to ensure all staff are suitably qualified, properly inducted and trained and comply with legislative requirements. Training & Compliance

2.12 BLPL to ensure the fleet comply with the Schweppes contract and requirements as well as legislative prescriptions. Refer 2.10 Compliance with Schweppes Contract and relevant laws.

Refer Identify responsibility 2.13 The Directors to share operational, staff and management responsibility, as well as current and future financial obligations and guarantees equally. The responsibility for each of these functions should be identified and monitored by regular directors meetings. 4.12 for company & operations and 4.13 structures.

Refer 3.10 The fleet of identical twelve trucks (4 trucks each) be given for exclusive use of BLPL. Trucks to be based at an agreed site. [See also 1.11] 2.10 Supply of Trucks from each director. & 2.12

3.11 Those trucks can be (a) Acquired by BLPL - due consideration should be given to current valuations of each truck, current equity in each truck, current status of compliance, stamp duty on acquisition, ability of BLPL to raise capital for purchase. The net contribution of each director/shareholder would require adjustment so that equity contributions are equal and agreed. (b) Financed by BLPL - giving consideration to matters raised in 2.13 Method by which trucks are obtained for exclusive BLPL use. (c) Rented/ Hired by BLPL from each respective director at a rate to be agreed. (d) rate to be agreed.

3.12 Policies are to be agreed in relation of allocation of work, income flows, payment of contractors and operating expenses, guarantees for premises and future capital acquisitions and income distributions. Agreement needs to be made as to how to compensate MV for lack of earnings in prior periods. Refer Identify management prior periods. 1.14 & operational responsibilities and income distribution equality.

4.10 Appropriate shareholders' agreements to be established. Create Shareholders Agreements.

4.11 Appropriate Buy/Sell Agreements to be put in place. Create Buy/Sell Agreements.

Refer 4.12 Additional Independent Director/Secretary to be appointed to assist existing directors in the management of the company. This should be a person agreed to by all directors and the appointee should be an independent consultant and/or a member of the AICD. 2.13 Appointment of independent director to be agreed. & 4.13

Refer 4.13 Regular and properly constituted meetings of BLPL be conducted. 2.13 Regular & meaningful meetings to be held. & 4.12

4.14 Consideration should be given to the obtaining of contracts for future work and how those contracts can be properly executed. Refer 2.13 Obtaining Future Work.

The matters raised above are intended as a guide for discussion as a means of obtaining a framework that satisfies all parties and defines the mechanism which will allow the company to operate successfully in the future. Your comments and input are encouraged. Perhaps it may be possible to meet collectively again to further define the directors requirements and obtain a workable solution for all parties. In the meantime we will contact each director individually and arrange a time to meet with them as previously discussed."

1. As I have already mentioned above and as the defendants submitted, it is clear from the discussion paper read as a whole as well as from the evidence of Brian Hobson, Michael Vella Robert Fielding referred to at [136]-[137] above, that the new company proposal that had emanated from Robert Fielding and/or Peter Versluis was inextricably linked to a proposed shareholders' agreement, policies or rules for the new company that would govern future work allocation and financial distributions and under which the new company would become the owner or lessee of the trucks performing Schweppes delivery work and the employer of the drivers of those trucks and would take on compliance responsibility for the trucks. The listing of those substantive matters in the discussion paper identified them as topics for discussion to see if agreement could be reached. These were substantive matters, and not mere formalities required "to properly formalise the operations of the new company" as the plaintiffs' submissions suggested. The arrangements proposed by the Vella family concerning trucks, drivers and compliance responsibilities represented a fundamental change from the BFS arrangements referred to at [65]-[73] above.
2. It is also clear that BLPL was referred to in the discussion paper on the mistaken understanding that Michael Vella, Brian Hobson and Brett Soper were the equal shareholders and directors of that company. [6] In circumstances where Robert Fielding and/or Peter Versluis were the instigators of the new company proposal, the references to BLPL in the discussion paper provide no support for either of the plaintiffs' inconsistent theories referred to at [101] and [138] above. That is so, regardless of who told Robert Fielding and Peter Versluis about BLPL (or alternatively about "Beverage Logistics Services", which Robert Fielding may have then wrongly transcribed as "Beverage Logistics Pty Ltd").

The Ingleburn meeting: 28 August 2012

1. As I have already mentioned, Michael Vella gave evidence that the Ingleburn meeting was organised after he accepted Brian Hobson's suggestion that they engage an independent person to facilitate a discussion rather than Michael Vella and JEV taking "the legal route" to sort out the dispute relating to the Arndell Park lease. [9] In his affidavit sworn on 4 December 2015, Michael Vella deposed: "… We went through the agenda, we all said what we wanted to discuss and how we were going to do it. During this meeting, Hobson tried to explain to me the reason they had leased the warehouse stating that 'Schweppes required somewhere to store freight'. I rejected this reasoning saying 'Schweppes themselves store pallets in the thousands. Your warehouse would only store a couple of hundred pallets, so it is useless for that purpose.' The Risk Connect representative - I can't recall his name - said words to the following effect: 'You should move the business to a new company and finish Beverage Freight Services off and that's the only way to actually remove Steve Phillips as an owner. The three of you to be the directors and shareholders of the new company.' Hobson, Soper and myself agreed with this course of action and said words to the effect 'I agree'. Hobson proposed 'the new company should be called Beverage Logistics.' Soper and I both agreed and I said 'no objection to that'."
2. That was the whole of Michael Vella's evidence about the Ingleburn meeting in his 4 December 2015 affidavit and, indeed, the whole of the plaintiffs' evidence in chief about that meeting.
3. It was common ground between all of the witnesses who were present at the Ingleburn meeting that it lasted for approximately two hours.
4. In June 2016, the defendants served affidavits of Brian Hobson, Brett Soper and Robert Fielding. Each of those witnesses gave an account of the Ingleburn meeting.
5. In their affidavits sworn on 17 and 20 June 2016, Brett Soper and Brian Hobson each denied the conversations recounted by Michael Vella in his 4 December 2015 affidavit about the purpose of the Arndell Park lease and about moving the business of BFS to a new company in order to remove Steven Phillips as an owner.
6. Brian Hobson gave evidence that Michael Vella had proposed that BFS should purchase JEV's trucks and he and Brett Soper had opposed that idea, following which there was a discussion about whether JEV's trucks complied with Schweppes' requirements, whether work allocation issues were attributable to JEV trucks not turning up for work or not working as they should and whether Michael Vella should guarantee BFS's obligations under the Arndell Park lease.

Events in the immediate aftermath of the Ingleburn meeting: August - September 2012

1. As referred to at [219] above, Brian Hobson sought Robert Fielding's advice about establishing a new company on the afternoon of 29 August 2012 after he had signed the minutes of the Ingleburn meeting. In cross-examination, Robert Fielding gave evidence that Brian Hobson telephoned him that afternoon and asked if he could help him to set up a new company. Robert Fielding asked who the shareholders and directors would be and Brian Hobson said he would need to get back to him about that. In that context, Brian Hobson told Robert Fielding that he and Brett Soper were unable to do all the Schweppes work themselves and needed to enlist help. The following day, Brian Hobson told Robert Fielding that the directors would be Brett Hobson, Brett Soper and Erron Jameson. Robert Fielding asked about the shareholders and advised Brian Hobson that "you should probably put them in a trust". He gave that advice for reasons that he described as "Tax and structuring, and being able to distribute income, and asset protection". He denied having any concern that they were exposing themselves to liability by setting up the new company.
2. In cross-examination, Brian Hobson gave evidence that he and Brett Soper needed to find a third shareholder in order to "pick up the slack" that was created from JEV not being there. They approached Erron Jameson of George McDonald & Sons, which was already a subcontractor to BFS with Schweppes-compliant trucks. Brian Hobson first contacted Erron Jameson on his way home from the Ingleburn meeting and asked him "could he help supply trucks because Michael had left - was leaving the business". He had a further, separate discussion with Erron Jameson about becoming a shareholder in the new company the next day.
3. Brian Hobson was unsure whether he had provided the instructions to Robert Fielding in relation to the creation of the new company, or whether this was done by Brett Hobson or Brett Soper. Nothing turns on this. Brian Hobson knew that the instructions had been given to Robert Fielding.
4. The new company established by Robert Fielding is BDA. It was registered on 30 August 2012 with Brett Hobson, Brett Soper and Erron Jameson as its directors and Hynadam Nominees, Mechita Nominees and Coastal Beverage Logistics Pty Ltd as equal shareholders. As referred to at [222] above, Robert Fielding is the accountant for BDA. In cross-examination, he described BDA as "just a clearing house, to collect the fees to pay to the other companies that own the trust and the property and do the running about".

Findings in relation to the Ingleburn meeting

1. The defendants contend that, at the Ingleburn meeting: [16] 1. JEV, Hynadam and Mechita, as the members of BFS, expressed an intention that they would no longer be bound by the 2001 agreement; and 2. an agreement was reached between either the directors of BFS or the shareholders of BFS that BFS was to be wound up and cease trading.
2. The defendants contend that if any partnership existed between JEV, Hynadam and Mechita and/or between Joseph Vella, Brian Hobson and Brett Soper (which is denied), it was dissolved at the Ingleburn meeting. [17]
3. In reply, the plaintiffs contend that it was resolved at the Ingleburn meeting to wind down BFS at the same time as establishing a new company to carry on the business of the existing partnership. [18]
4. During the hearing, I raised a question with senior counsel for both parties about who bears the onus of proof in relation to the disputed issues concerning the Ingleburn meeting.
5. The defendants submitted that there is no dispute that Michael Vella stated at the Ingleburn meeting that he wanted to wind down and cease the business of BFS. The disputed factual issue is "whether there was also a final agreement to migrate the business to a new corporate entity". It was submitted that the plaintiffs bear the onus of establishing this additional agreement because there is no evidence except their own assertions to support it.
6. In my opinion, the defendants' submission artificially separates the plaintiffs' contention concerning the outcome of the Ingleburn meeting into two separate agreements. In truth, the plaintiffs contend that there was one agreement with two elements, as referred to at [260] above and [272] below.
7. As the plaintiffs submitted, the defendants contend that the Ingleburn meeting concluded with an agreement limited to the first element, including that the parties to the 2001 agreement would no longer be bound by it and that each of JEV, Hynadam and Mechita was free to seek work from Schweppes. The defendants plead that this agreement had the legal consequences of dissolving the alleged partnership or fiduciary relationship (the existence of which they deny). I accept the plaintiffs' analysis of the pleaded defence and their submission that it is for the defendants to establish the elements of that defence. I also accept the plaintiffs' submission that the defendants therefore bear the onus of establishing on the balance of probabilities that the Ingleburn meeting concluded with an agreement to the effect contended for by the defendants.

Toll contract

1. In about 2013, Schweppes was purchased by Asahi. BDA did all of the Sydney bulk freight work until 2015, when Asahi put that work out for tender and Toll was the successful tenderer. BDA then signed a five-year contract with Toll to provide delivery services on a subcontract basis. That contract was terminable on 14 days' notice.
2. Having regard to my findings at [266]-[272] above, I reject the plaintiffs' characterisation of BDA's performance of Schweppes delivery work as a subcontractor to as constituting a diversion of the work from BFS to BDA.

The operation of BDA

1. The evidence included financial statements of BDA for the 2014 financial year (including comparative figures for the 2013 financial year), the 2020 financial year, and some financial years in between. Those statements show that BDA operated in essentially the same manner as BFS referred to at [73] above. That is to say, BDA earned several million dollars of income each year which was derived from "sales", and almost all of its income was expended on "transportation costs". BDA incurred some additional expenses of relatively modest amounts for "contract drivers", "management fees" and accountancy fees and insurance and similar matters. BDA either earned a modest profit or made a modest loss in each year, which was carried over into the following year. There were no distributions of the modest profits to shareholders.

Alleged partnership or joint venture

1. The plaintiffs plead that the 2001 agreement was a partnership or joint venture agreement between: 1. JEV, Hynadam, Mechita and Evermay; and/or 2. Joseph Vella, Brian Hobson, Brett Soper and Stephen Phillips, with a view to making a profit through the business of providing freight services to Schweppes. It was an express term of this agreement that a special purpose corporate vehicle would be incorporated to conduct that business and BFS was incorporated as that vehicle. [78]
2. The plaintiffs plead that each "partner" owed fiduciary duties to each other partner, including: [79] 1. a liability to account to one another; 2. a duty not to profit or benefit at the expense of the others when there was a possible conflict of interest or duty; 3. a duty not to profit or benefit at the expense of the others by reason of their fiduciary position; 4. a duty not to take advantage of an opportunity or knowledge derived from their fiduciary position to the detriment of the others; 5. a duty of good faith and to devote themselves to the progress and welfare of the business of BFS; and 6. a duty to refrain from pursuing, obtaining or retaining for themselves any collateral advantage in connection with the BFS business without the knowledge and informed assent of the others.
3. The plaintiffs plead that Brian Hobson and Brett Soper, in their capacity as directors of BFS, owed the abovementioned fiduciary duties to BFS in addition to the statutory duties under ss 180-184 of the Corporations Act 2001 (Cth). [80]
4. The plaintiffs plead that, by reason of their management roles as operations manager and financial controller respectively, [81] Brian Hobson and Brett Soper "owed the remaining Partners" fiduciary duties (defined by the plaintiffs as the "Management Duties"): [82] 1. "not to profit from their relationship with BFS without the Partner's express informed consent"; and 2. "to avoid any conflicts of interest between themselves and the remaining Partners".
5. I note that the alleged management duties are pleaded in the Second Further Amended Statement of Claim in terms that make it clear that they are said to arise by reason of Brian Hobson and Brett Soper being partners in the alleged partnership or joint venture together with their management responsibilities. The Second Further Amended Statement of Claim does not rely on Brian Hobson's and Brett Soper's roles as directors of BFS as giving rise to any fiduciary duty allegedly owned to any "partner". Nor is it pleaded that, as directors of BFS, they owed any fiduciary duty to shareholders of BFS (as opposed to the duties owed to BFS itself referred to at [348] above).

Alleged breaches of the 2001 agreement and fiduciary duties

1. As I have mentioned earlier in these reasons, the plaintiffs abandoned their claims that Brian Hobson and Brett Soper breached their fiduciary duties allegedly owed to the plaintiffs by causing BFS to enter into the Arndell Park lease and by failing to distribute Schweppes work evenly between JEV, Hynadam and Mechita. [93]
2. The plaintiffs maintained their claims that Brian Hobson and Brett Soper breached their fiduciary duties and "Management Duties" owed to JEV and Joseph Vella and breached the terms of the 2001 agreement above by: [94] 1. causing BDA to be incorporated in contemplation of BDA supplying freight services to Schweppes in place of BFS; 2. causing BFS not to renew or renegotiate its contract with Schweppes; 3. causing BDA to take over from September 2012 the provision of the freight services to Schweppes that had previously been provided by BFS; and 4. causing BDA to enter into the Toll Contract referred to at [343] above in about September 2015, without the knowledge or consent of the plaintiffs.
3. The plaintiffs pleaded that Hynadam and Mechita were "knowingly concerned" in the alleged breaches by Brian Hobson and Brett Soper of fiduciary duties and "Management Duties" owed to the plaintiffs. [95]
4. The plaintiffs also pleaded that, because BDA entered into the agreement to provide freight services to Schweppes and/or Toll "in place of BFS", BDA induced the alleged breaches of the 2001 agreement by Brian Hobson and Brett Soper and was also knowingly concerned in their alleged breaches of fiduciary duties and "Management Duties" owed to the plaintiffs. [96] The plaintiffs pleaded the same allegations against Hynadam Nominees and Mechita Nominees on the basis that those companies caused BDA to be incorporated in contemplation of entering into a freight contract with Schweppes and/or Toll "in place of BFS". [97]
5. An additional allegation pleaded by the plaintiffs that Hynadam and Mechita breached fiduciary duties that they owed to the plaintiffs by providing BDA with transport services [98] was not mentioned in any of the plaintiffs' lengthy written submissions or oral submissions. That allegation is therefore taken to have been abandoned.
6. The plaintiffs claim that, by reason of their conduct referred to at [361]-[363] above, each of Brian Hobson, Brett Soper, Hynadam, Mechita, Hynadam Nominees, Mechita Nominees and BDA are liable to account to the plaintiffs for the advantage they have obtained from BDA performing work for Schweppes and Toll, and hold on constructive trust the benefits they have received from the alleged breaches referred to above. [99]

Plaintiffs' claims for relief

1. The plaintiffs claim: 1. a declaration that the conduct of Brian Hobson and Brett Soper in expropriating the Schweppes contract from BFS for the benefit of BDA and its members, contrary to the knowledge, understanding and agreement of Joseph Vella or Michael Vella, was in breach of the fiduciary duties owed by Brian Hobson and Brett Soper to JEV and Joseph Vella; 2. a declaration that Brian Hobson, Hynadam, Hynadam Nominees, Brett Soper, Mechita, Mechita Nominees and BDA hold on constructive trust for the plaintiffs any benefit that they have received by reason of the alleged breach of fiduciary duties by Brian Hobson and Brett Soper; 3. an order that Brian Hobson, Hynadam, Hynadam Nominees, Brett Soper, Mechita, Mechita Nominees and BDA account to the plaintiffs as at the date of judgment for all income or benefit that they have derived from or received by reason of the alleged breach of fiduciary duties by Brian Hobson and Brett Soper, and an order for payment to the plaintiffs of all sums found to be due from any of those defendants to the plaintiffs on the taking of such an account; 4. further or alternatively, damages for breach of contract; 5. further or alternatively, equitable compensation for breach of fiduciary duty and breach of trust.
2. All of the plaintiffs' claims for relief are made for their own benefit and not on behalf of BFS.

Consideration and determination

1. As will be apparent from the summary above, the plaintiffs' pleaded claims that were pressed at the hearing are confined to claims for alleged breaches by Brian Hobson and Brett Soper of the 2001 agreement and/or fiduciary duties and "Management Duties" said to have been owed by Brian Hobson and Brett Soper to their other "partners" or to the BFS shareholders, and claims against Hynadam, Mechita, BDA, Hynadam Nominees and Mechita Nominees for inducing or being "knowingly concerned in" those alleged breaches. In determining those claims, I have considered all of the parties' extensive submissions, irrespective of whether they are specifically referred to below.

No breach of the 2001 agreement by Brian Hobson and Brett Soper

1. For the reasons explained at [43]-[50] above, I have determined that JEV, Hynadam, Mechita, Evermay and Alderton Transport were parties to the 2001 agreement. Joseph Vella, Brian Hobson, Brett Soper, Stephen Phillips and Glenn Alderton were not parties. The plaintiffs' claims against Brian Hobson and Brett Soper for breach of contract fail for that reason. The claims that BDA, Mechita Nominees and Hynadam Nominees induced breaches of contract by Brian Hobson and Brett Soper suffer the same fate.
2. For completeness, I note that the plaintiffs' submissions made no more than passing references to their claim for damages for breach of contract [102] and failed to identify any term of the 2001 agreement said to have been breached by Brian Hobson or Brett Soper. The claim in contract would have failed for that reason even if I had found that Brian Hobson and Brett Soper were parties to the 2001 agreement.

No partnership

1. From pleadings through to the last round of closing submissions, the plaintiffs' case was marred by obfuscation about who were the parties to the partnership alleged to have been created by the 2001 agreement. [103] Nevertheless, it was clear from the Second Further Amended Statement of Claim that the partners in the alleged partnership were the same as the parties to the 2001 agreement.
2. It follows from my finding referred to above in relation to the parties to the 2001 agreement that JEV, Hynadam, Mechita, Evermay and Alderton Transport were the only potential members of the alleged partnership created by the 2001 agreement.
3. The 2001 agreement did not give rise any partnership between JEV, Hynadam, Mechita, Evermay and Alderton Transport. That is because, as the plaintiffs acknowledged in closing submissions, they did not enter into a relationship of carrying on a business in common with a view to profit: Partnership Act, s 1. There was no intention for BFS to make a profit: see [39] and [73] above.
4. The sole basis on which the plaintiffs submitted that the relationship created by the 2001 agreement was a partnership was that some profits were in fact made by BFS from providing storage facilities to Schweppes and those profits were divided among the participants. That submission relied solely on the evidence of Brian Hobson that BFS leased various premises for storage and Schweppes paid a fee to BFS to store stock on those premises. Brian Hobson gave evidence that those fees were "normally used by BFS to pay various costs of the business, including payment of the rent for storage premises and for accounting fees. Any money remaining after costs of the business were paid was divided among the Companies equally."
5. There was no evidence as to whether the storage fees were set by BFS with a view to BFS making a profit, or with a view to generating revenue that would merely go towards covering its costs with surplus amounts resulting from time to time when only revenue unexpectedly exceeded costs. Nor was there any evidence of the amounts or frequency of any the payments to the BFS shareholders. The financial statements for BFS did not record any payment of dividends to the shareholders: see [73] above. I do not regard Brian Hobson's evidence concerning these payments as supporting a finding that there was a partnership between the BFS shareholders: Partnership Act, s 2(3). In any event, Brian Hobson and Brett Soper were not partners in any such partnership and they are the only defendants alleged to have breached fiduciary duties said to have been owed as partners to their alleged co-partners JEV and Joseph Vella.

No fiduciary duties owed to the plaintiffs

1. The plaintiffs' submissions focussed heavily on whether the relevant relationship was a joint venture, a "quasi-partnership" or one of trust and confidence.
2. This is misconceived for two reasons.
3. First, the plaintiffs continued to obfuscate about who were the parties to the relevant relationship alleged to be fiduciary in character. In circumstances where Brian Hobson and Brett Soper are the only parties alleged to have breached any fiduciary duty, the relevant questions are whether those two men owed any fiduciary duty to the plaintiffs, what was the content and scope of any such duty, and whether conduct of which the plaintiffs complain breached the duty. The first two questions fall to be determined at the time of the impugned conduct, namely during the period from 29 August 2012 in which BDA was incorporated and commenced performing Schweppes delivery work (including through the subcontract that BDA entered into with Toll in 2015). [104]
4. Second, the question whether Brian Hobson and Brett Soper owed any fiduciary duty to the plaintiffs at the relevant time does not turn on whether their relationship could be described as a joint venture, a "quasi-partnership" or as one of trust and confidence: United Dominions Corporation Limited v Brian Pty Ltd (1985) 157 CLR 1 at 10-11 (Mason, Brennan and Deane JJ, Gibbs CJ and Dawson JJ agreeing). In any event, the joint venture pleaded by the plaintiffs was a joint venture created by the 2001 agreement, to which Brian Hobson and Brett Soper were not parties. [105]
5. As emphasised by Mason J in Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41; [1984] HCA 64 (Hospital Products) and by the High Court in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; [2010] HCA 19 (White City) the "critical feature" of a fiduciary relationship is that: [106] "… the fiduciary undertakes or agrees to act for on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions 'for', 'on behalf of' and 'in the interests of' signify that the fiduciary acts in a 'representative' character in the exercise of his responsibility … It is partly because the fiduciary's exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed."

Plaintiffs' claims for relief

1. For all of the foregoing reasons, each of the plaintiffs' claims for relief set out at [368] above fails.
2. This is not a case that lends itself to stating the remedies I would have awarded to one or both of the plaintiffs if I had found in their favour in respect of their claims for breach of fiduciary duty. At the conclusion of the final hearing, the plaintiffs had not made an election between their alternative claims for an account of profits and equitable compensation. The plaintiffs submitted, with the concurrence of the defendants, that they should have an opportunity to consider and make that election following any finding in their favour and to then adduce further evidence and submissions. There would be no occasion prior to that election to address the myriad of issues of principal and quantum raised in the parties' closing submissions concerning the two alternative claims.

Conclusion and orders

1. The proceedings are to be dismissed for all of the reasons above. The parties' closing submissions indicated that they wish to be heard in relation to costs.
2. The orders and directions of the Court are: 1. Order that the proceedings are dismissed. 2. Reserve for further consideration the question of the costs of the proceedings, to the extent that they are not the subject of costs orders previously made. 3. Direct the parties to send to the Associate to Williams J by 15 July 2022: 1. any agreed short minutes of order in relation to the costs of the proceedings; or 2. written submissions of no more than 5 pages in support of the costs orders for which each party contends. 1. Direct each party to send to the Associate to Williams J by 22 July 2022 any written submissions of no more than 5 pages in response to any submissions of the other party referred to in order 3(b) above.

Endnotes

1. Citations omitted.
2. 2FASOC, particulars to paragraph 19, incorporating the particulars to paragraph 13.
3. See [139] below.
4. See [73] above.
5. Omitting offensive words, which were included in the email as sent.
6. See [76] above.
7. See [219] below.
8. T114.35-114.40.
9. See [97] above.
10. A further example of the inconsistencies referred to at [101] above.
11. See [103] and [124] above.
12. See [229] above.
13. See [78]-[79] above.
14. T160.39-161.41.
15. See [72] above.
16. Defence, paragraph 36A.
17. Defence, paragraph 13E; see [354] above.
18. Reply, paragraph 4; see [358] above.
19. See [97] above.
20. See [154] above.
21. See [160] above.
22. See [149]-[153] above.
23. See [166]-[167] above.
24. See [168]-[169] above.
25. See [213], [217] and [218] above.
26. See [190] and [216]-[217] above.
27. See [190], [192] and [194] above.
28. See [160]-[161] above.
29. See [136]-[144] above.
30. See [160]-[161] above.
31. See [183]-[188] and [205] above.
32. See [186] above.
33. As was put to him in cross-examination: T110.35.
34. See [178] above.
35. See [178] above.
36. See [160] above.
37. See [180], [206] and [207] above.
38. See [207] and [209] above.
39. See [210] above.
40. See [136]-[144] above.
41. See [218] above.
42. T271.19-271.35.
43. T286.10-286.30.
44. See [136]-[144] above.
45. See [218] and [221] above.
46. See [222] above.
47. See [222] above.
48. See [283] and [286] above.
49. See [207] above.
50. See [72] and [253] above.
51. See [225] above.