15 Mr Coade's credibility was significantly damaged. He is not a witness whose evidence I would accept without independent corroborative evidence. My reasons for this conclusion are that:
(1) he swore an affidavit in support of a statutory demand for $96,000 that, on his admission, was false: see T68-69, T357-358 and Exhibit L, and see further [18]-[20] below;
(2) he issued a default notice that was, in reality, bogus;
(3) in opening, Mr Ravech stated on behalf of the defendants that the reason that leads were not sent to AMC NSW in November 2009 was that "there was a crash in the system and the system didn't work, and none of the States got any leads, the system just crashed. We didn't get any leads so we couldn't pass them on. That's what we say": see T23.33-36. Mr Coade's evidence at T404.48 was that he thought that the problem was a "slow server": see T404-409 further on this topic. Mr Coade in his affidavit sworn 9 March 2010 says at paragraph 5(c) that AMC National did not receive any leads in November, but he says nothing about any computer problems. The email of 3 December 2009 annexed to Mr Coade's affidavit sworn 16 March 2010 does not support the "crash" evidence, but it does refer to the slow server, although no period is specified. It does not indicate that leads had been, or might have been, lost;
(4) Mr Coade, through his counsel, asserted that he had prepared the Notice of Default because he believed that what was set out in the notice was correct and that he had not engaged solicitors in relation to this issue (see T67.1-19), but no basis for that belief was ever demonstrated. The notice asserted that there was a lack of support by AMC NSW, but at T97-98, Mr Ravech accepted that there was no evidence of a lack of support by AMC NSW; and
(5) there are a number of examples where Mr Coade appears on the face of matters to have taken steps that could not be justified and the explanation given is to assert malfunction, misapprehension or error on the part of others, for example:
(i) his explanation for refusing to approve a sale to a prospective franchisee was that he thought there had been no disclosure to the prospective franshisee of these proceedings, when in fact there had been: see T113;
(ii) I have referred to the asserted computer crash in November 2009;
(iii) he claimed that he thought that clause 7.6 of the MFA gave AMC National the right to require all franchises to have documents prepared by Macpherson + Kelley Lawyers (see T116), but accepted now that it does not;
(iv) he claimed that the failure to send back documents regarding a prospective franchisee, Mr Wei Guo, was "just an error" (T73.49);
(v) he claimed during cross-examination that he had advice from Mr Linacre, his solicitor, that AMC National could deduct the sign on fee from AMC NSW even before AMC NSW received money from the franchisee (see T392) - clause 5.4 is clear in its terms, requiring "payment" within seven days of receipt (see page 101 of Exhibit A1). Mr Linacre was not called to corroborate Mr Coade's evidence; and
(vi) the matters dealt with in [18]-[40] below.
16 In relation to the second last point, the plaintiff says that AMC National's attempt to collect the 15 per cent franchise fee from AMC NSW on execution by the franchisee of the franchise agreement, rather than when the franchise fee was received by AMC NSW, is another example of Mr Coade's attempt to place pressure on AMC NSW. The defendants assert that Mr Kijurina laboured under the same misapprehension as Mr Coade: see the affidavit of Mr Coade sworn 11 March 2010. To the extent that AMC NSW sent money to AMC National before it had received payment from franchisees, then there can be no criticism of AMC National, but it is not established that AMC NSW did send money before it had received payment from franchisees, and from February 2009, AMC National deducted the 15 per cent fee before AMC NSW had received any money. Mr Kijurina's evidence was that he paid the 15 per cent fee when he received money from the franchisees and that he did not wait until he had received the full amount due: see T218.14-30. Very little seems to turn upon this point given AMC National's concession (see T24-26), save that it might be added to the long list of items with which Mr Coade sought to vex Mr Kijurina. The defendants' submitted that the money paid by a franchisee who did not proceed was not refundable. Where a franchisee was withdrawing due to misrepresentations made, then it would seem to be entirely appropriate for AMC NSW to refund any money paid.
17 Mr Coade sought to justify the suspension, in December 2008, of AMC NSW's authority to enter into franchise agreements on the basis that AMC NSW had insufficient contracts to make good its obligations to franchisees. As Mr Alexis' submissions dated 4 April 2010 point out at paragraph 84 (in addition to the unexplained form of the email suspending Mr Kijurina's authority), AMC National did not put forward any evidence that that concern was in fact justified at the time of the purported suspension (see T383-384) and there is Ms Lazos' evidence at paragraphs 23.1 and 23.2 of her affidavit sworn 3 December 2009. I think that this is another example of Mr Coade taking whatever steps he could to oust Mr Kijurina.
18 In relation to 4, AMC National's claim for $96,250 was based on an invoice raised by AMC National following the entry by AMC NSW into a sub-master franchise agreement with Ms Ayoub. It was not an invoice which itself purported to be based on the MFA. In cross-examination, Mr Coade said that the claim was not based on the MFA, but that he had a verbal agreement with Mr Kijurina about this (see T353), which supported the claim for 50 per cent of the initial sign on fee. However, his statutory demand referred to the MFA and to no agreement other than the MFA (see page 213 of Exhibit A2), and Mr Coade put forward no evidence of any agreement reached with Mr Kijurina about this. Cross-examination by Mr Alexis was predicated upon the absence of any reference in the MFA to sub-master franchises (see T352-354), although Mr Coade stated (see T354.5-6) that: "we knew sub-masters existed so there must have been some structure for putting them together".
19 Thus the position of AMC NSW, it seems, was that the MFA did not have any special regime for sub-master franchises, and hence there could be no claim by AMC National for a percentage of the fee earned by AMC NSW in respect of the new sub-master franchise agreement. AMC National's position was to accept that the MFA did not provide a basis for issue of the invoice.