(v) the Crown Entertainment Complex (Club Odeon) (where Mr Avati was appearing as part of a show involving other performers) in January 2000.
82 Mr Bova seems to have provided managerial and other assistance in relation to the production of each of those shows. Nevertheless, it seems fair to say that in relation to the first of those productions (the Parramatta Riverside Theatre shows), it was Mr Avati's idea for the shows and Mr Avati was involved to a large extent in the arrangements for the production. Mr Avati gave evidence that he had made the theatre booking (although Mr Bova says he was also involved in the choice of venue), paid the deposit, and worked (with assistance from Mr Bova or his contacts) on the media campaign for the show in May-June 1999. Mr Avati accepts that Mr Bova was involved in the advertising of the show (para 117(b) of Mr Avati's affidavit) as was Mr Bruno Puglisi (Mr Bova's vocal coach, who also gave evidence in the proceedings).
83 Mr Avati paid for the editing of the TV commercial and advertisements for the show from his SUBC account. Mr Bova's assistance in the preparation of the comedy routines seems to have related to the manner of delivery of the routines and suggestions in relation to punchlines or ideas for jokes, rather than scriptwriting per se; an informal process of collaboration in which others (such as Mr Puglisi) also joined from time to time. Over the relevant period much of the collaboration in relation to writing seems to have been 'around the table' contribution to jokes or ideas for skits in an informal, seemingly social, process, in which others (including Mr Puglisi) also participated, or later watching video recordings of shows and commenting on what jokes had gone down well (or otherwise) with the audience. Unlike Mr Avati, who produced various copies of notes setting out ideas for jokes and the like, jotted down on miscellaneous bits of paper, Mr Bova's contribution to the creation of the material was not documented at the time.
84 LEM was held out as the "promoter" of Mr Avati's performances at the Parramatta Riverside Theatre. All payments seem to have been deposited to the SUBC account but the Parramatta Riverside Theatre reconciliations were addressed to LEM. What was paid from the LEM account in 2000 was rent for the parties' then shared accommodation (something not directly attributable to any partnership as such, but perhaps legitimately able to be treated as a partnership expense insofar as the production/preparation for the shows was to some extent carried out from the shared premises). Mr Bova also funded various of the pair's expenses, such as meals and the like. The income from the Parramatta Riverside Theatre shows in turn seems to have been drawn on largely to fund the other comedy performances in 1999 in which the parties were involved.
· Livin' La Dole-Cheque Vita CD
85 In September 1999, the parties collaborated on the production of the first CD (Livin' La Dole-Cheque Vita).
86 Mr Avati's evidence is that he conceived the idea for a CD, as a marketing tool, during the course of the Parramatta Riverside Theatre shows and that he suggested this to Mr Bova from whom he sought help and who encouraged Mr Avati to use his services as they would be less costly. Mr Bova recorded the 10 September 1999 Parramatta Riverside Theatre show, material from which was used to create the Livin' La Dole-cheque Vita CD (a copy of which was tendered as Ex J).
87 Mr Avati says that he selected the tracks for inclusion in the CD and that he wrote all but one of those tracks. Mr Bova created the musical score for the last track, which was not recorded in the course of a performance of a show, and he is credited with this on the CD cover. (Insofar as Mr Bova claims that the sound recordings on that CD constitute partnership property, this claim is based on the fact that the CD was created during the alleged partnership or with partnership funds, not his role in making a relevant sound recording. As I understand it, what was said was that, wherever the copyright might lie, Mr Bova or the partnership had an entitlement to an account in respect of the use of the sound recording as a partnership asset.)
88 Mr Avati (through loans from Mr Bomba) paid the expenses in relation to its manufacture (other than Mr Bova's services) from his SUBC account (and Mr Bova appears to concede this). Mr Avati says he borrowed an initial sum of $3,500 from Mr Bomba in December 1999 to assist with the manufacture of the CD (Mr Avati's affidavit para 209(a)) (which he says was deposited into the SUBC account on 7 December 1999) and a further sum from Mr Bomba in February 2000 ($10,000) to manufacture more CDs. That money seems to have been deposited into the LEM account (Mr Avati's affidavit paras 209(b), 228 ff). Mr Avati says that he repaid Mr Bomba in 2000 and there does not seem to be a dispute about this.
89 Mr Avati says that he asked Mr Bova to nominate a fee for his work in the creation of the CD and that he paid Mr Bova what was asked in that regard. Mr Bova denies this and says that the arrangement was for the profits from the sale of the CD to be shared equally. (I consider later some correspondence which it is said sheds light on this arrangement, but suffice it for the moment to say that as at the time the CD was created there was again nothing in writing outlining the arrangements between the parties in relation to its production.)
90 Mr Bova's 28 February 2006 affidavit sets out (in para 62) the conversation he says took place during the process of designing the CD insert, in which he says he said, "So all is cool with you Joe? If I produce and edit the CD and organise the manufacture of the first thousand? The first lot of money we take goes to pay my expenses the rest we continue to split 50/50. There is no cost for any of my recording, editing or mastering". He says that Mr Avati said he was happy with that arrangement.
91 To the extent that Mr Bova says that there was a separate discussion about this CD, it cannot have been regarded by him at the time as part of the initial joint venture between the pair (be that a partnership or otherwise) since if it had been such a discussion would have been unnecessary. It also seems odd that if Mr Bova felt the need to confirm that level of detail as to the arrangements for the production of the CD, this would not have been recorded in writing. Be that as it may, this discussion is inconsistent with the production of the first CD falling under the rubric of the partnership.
92 The insert to the Livin' La Dole-Cheque Vita CD included thanks by Mr Avati to a number people (including all the "gang" at DMG) and "very special thanks" to a few individuals about whom a specific written comment was made, including:
Bruno Puglisi - a good friend, comedy writer, spiritual healer, vocal coach and critic. Thank you so much for your creative input and perseverance in helping me achieve the 'minimum show'. Your calmness is unparalleled. Thanks mate.
…
To Carlo Bova - My best mate, business partner, manager, housemate, relationship consultant, alarm clock, chief negotiator, producer, guitar teacher, chef, comedy writer, photographer, pain in the arse, roadie, sound technician, heckler, originator of the 'minimum show', a loving Dad to Michael and Cassie and above all a very funny bloke. Your contribution and energy over the last year has been priceless. You have made the show, and this recording, a realisation.
Someone, who knows you well, best described you when they said - "if everyone in the world was like Carlo, we'd be in the year 2050". I think that says it all!
Thanks for the countless hours that you have spent, in the pursuit, of my dream.
93 On the back of the insert was a photo of a show ticket with bold lettering "Lookout Entertainment" and underneath the words "Joe Avati La Dole-Cheque Vita".
94 The back of the CD cover included the following words:
All material originated by Joe Avati, except track 14 written and performed by Carlo Bova and Joe Avati.
Recorded "Live" at the Parramatta Riverside Theatre, Parramatta Sydney, Australia by Carlo Bova and Shan Soley except track 14, recorded in "The Kitchen Studio", Sydney by Carlo Bova.
All tracks mixed and edited in "The Lounge Room Studio", Sydney by Carlo Bova … Produced by Joe Avati and Carlo Bova. ... Joe Avati Representation: Lookout Entertainment Management.
95 It was Mr Avati who prepared the initial draft of the credits for the CD. He gave evidence that he had consulted with Mr Bova in relation to the credit to be given to him on the CD; that Mr Bova (apart from a complaint that too much credit was being given to Mr Puglisi in suggesting he was a comedy writer - affidavit para 182) had asked for the description "business partner" to be changed to "business advisor" but then asked that it be changed back again (affidavit paras 179, 181) (and, certainly, there was a draft showing the deletion of "partner" and insertion of "advisor", though it is not apparent on the face of the draft that this was at Mr Bova's instigation); that the CD credits contained some private jokes between the two (such as to the year 2050 reference - harking back to one of Mr Bova's own comments, he being said to be the "someone" who knew himself well; the reference to a "minimum show" - this seemingly being a process or concept not a "show" as such, see 18/11/08 T 78.12-16, and said by Mr Avati to be a joke by reference to Mr Puglisi's constant mantra to that effect; and also, perhaps, though this is mere conjecture on my part, in the titles given to the respective "Studios" in which the recording and editing/mixing of the CD had taken place); and that the CD included commentary which was of particular personal significance to Mr Bova given his then family situation.
96 Even allowing for some artistic licence or exaggeration on Mr Avati's part, and a desire to accommodate Mr Bova's wishes, what is clear is that the credit given by Mr Avati to Mr Bova on the CD acknowledges that Mr Bova had spent "countless hours" and had played an important role in bringing the show (and CD) to realisation. That said, it also refers to "the pursuit of my dream", words apt to indicate that what Mr Avati understood had been realised in that process was individual (not shared or partnership) success.
97 (The "Livin La Dole-Cheque Vita" CD was subsequently released in 2001 (T 382) under a different cover and with different credits, in Canada as "Livin' La Dolce Vita" (Ex L) - its insert does not have the detailed thanks or special thanks to individuals appearing on the Australian version. Mr Avati says he removed the references to Mr Bova on the CD insert because, by then, Mr Bova was saying things about him (T 384). That CD states "All material originated by Joe Avati" and that "Joe Avati Representation" is "The Comedy Corner, Sydney Australia".)
98 Meanwhile, in September 1999, Mr Avati and Mr Bova were also involved in a Carnivale Comedy show performed in the foyer of the Enmore Theatre. Mr Avati says this was one of the (only) two ventures he did carry out in partnership with Mr Bova, that being a partnership for the joint promotion of other people's comedy performances. (The other such venture, he says, was a promotion for the opening of The Forum in Leichhardt on New Year's Eve.)
· Advice from Mr Avati's accountant - November 1999
99 In about November 1999, Mr Avati was given advice from an accountant (Mr James Cassim) that he should incorporate a proprietary limited company for tax and liability reasons.
100 Mr Cassim gave evidence (and was cross-examined) as to his recollection of the conversation which he had with Mr Avati in late 1999 concerning that advice. Mr Cassim's best recollection seemed to be that what he gave to Mr Avati was the kind of advice he would generally give his clients, such as that one of the main aspects of incorporation was to limit liability (T 481.47). He accepted that it was more than likely that he said something about the lower company tax rate as well (T 482.17).
101 In his affidavit (para 7) Mr Cassim deposed that he did not recall any partnership being in existence between Mr Bova and Mr Avati. He was cross-examined as to what he had understood by Mr Avati's response (as set out in his affidavit) to the general tax advice he had given to Mr Avati (the response to which he deposed being that Mr Avati had said words to the effect, "Yes, we use many different services and a corporate identity makes sense" - T482.41-T483.7). Mr Russell submits that, by using "we", Mr Avati must on that occasion have been referring to Mr Bova. Mr Cassim was unable to recall what he had understood at the time by the word "we", suggesting that (by that) Mr Avati could have meant his family. He did not recall having heard of Mr Bova at that stage. In the circumstances, however, if Mr Avati did use the word "we" (and Mr Cassim's recollection as at the time he swore his affidavit was to that effect) he must surely have been referring to Mr Bova since there seems to have been no involvement by any of his family in the production of his shows during that period. (Of course that does not, of itself, suggest that Mr Avati was referring to a partnership, as such, with Mr Bova. Indeed, had he done so to Mr Cassim it seems likely that any general tax advice Mr Cassim gave would have taken that into account - T 492.42.)
· Opening of LEM account
102 Mr Avati says that he told Mr Bova about the advice he had received from Mr Cassim and asked Mr Bova if he could use LEM "as a company" where he could "park money" or direct the revenues from ticket and CD sales (T 299.8-24; para 205 of his affidavit). (Mr Cassim, in cross-examination said he did not give any advice in relation to "parking money" in any corporate account nor, perhaps unsurprisingly, did he give any advice to the effect that Mr Avati should put his money into any company account which was not his own (T 484.16-22).)
103 In cross-examination, Mr Avati said that he assumed LEM was a company (T 301.44; T203.31) (an incorrect assumption but one which at least Mr Bova's manager at DMG, Mr Caridi, appears to have shared - see Mr Caridi's affidavit). Mr Avati says Mr Bova told him they would need to open an account for LEM. That was done in December 1999. Both Mr Bova and Mr Avati were signatories to the account. Mr Avati accepted in cross-examination that he became aware that LEM was not in fact a company from shortly after or around the time he had sought advice from his accountant, ie towards the end of 1999 or early January 2000 (T 301.1-25). When asked to explain why he kept putting money in that account when he was aware it was not a company, he said:
Yes, I could have paid money into that company or into the Stand Up And Be Counted account. At that point, when I found out it was not a Pty Ltd company, it would have been equal to the Stand Up And Be Counted account. Once I sorted myself out, then I directed the funds into the new company [by which I understood him to be referring to The Comedy Corner Pty Limited which was later incorporated by Mr Avati], which is then what happened.
104 When pressed, Mr Avati said that another reason for using the LEM account was to give Mr Bova some assurance, security or peace of mind that Mr Bova would be paid the money he "owed" him (T 304.50; 305.29; 307.30). (He had not, in his affidavit evidence, suggested any such reason nor had he suggested that Mr Bova had expressed to him any concern about being paid. I therefore treat this explanation with some caution.)
· December 1999 - March 2000
105 In December 1999, Mr Bova and Mr Avati moved from Concord into a residence leased by them jointly at Balmain Cove. Monthly rent for the Balmain Cove premises was paid by cheques written on the LEM account from 7 January 2000 through to and including 7 June 2000.
106 Towards the end of 1999 a Joe Avati website was established. Mr Bova says he assisted in the provision of material for its creation.
107 Commencing from around the time of his performance at Club Odeon in January 2000, "Joe Avati merchandise" (at that stage relevantly the "Livin' La Dole-Cheque Vita" CD) was sold (largely by way of cash sales) at the venues at which Mr Avati performed. At some stage this merchandise also became available for purchase, via orders placed on-line from Mr Avati's web-site. A print-out from his web-site (Ex R) shows such products as still being advertised for sale. Mr Avati explained this as his "back catalogue" (T 441-442).
108 Mr Avati says that he did not do any projects with Mr Bova after New Year's Eve 2000 because he (Mr Avati) was very busy putting together the national tour (T 310.25). The idea of a national tour was apparently discussed some time in late 1999 or early 2000. Mr Bova says the itinerary for the national tour was booked by late January or early February 2000. Mr Avati says that the relevant time was from February/March 2000. Mr Avati seems to accept that the two were together involved in making the initial tour arrangements.
109 Whatever the timing, it seems clear that in early 2000 the parties were discussing what was to happen next in terms of Mr Avati's career.
· March 2000 - meeting with Mr Bova's accountant
110 At some time in the first half of 2000, the parties met with Mr Bova's accountant (Mr Paul Gillon). Mr Gillon says that he only met Mr Avati on this one occasion and the meeting was in a café. There is a dispute as to the timing of the meeting. Mr Bova and Mr Gillon both put this meeting as occurring in mid-March 2000. Mr Avati, on the other hand, says it was May 2000.
111 Mr Bova's own document, headed "Summary of (Italian Trip) Dates" (which he says was prepared in about 2003 - Ex 1), records Mr Bova as being in Italy from 8-17 March 2000 and from 2-14 May 2000. (Mr Bova had also been abroad in the USA for two weeks in February 2000). Therefore, if the meeting was in March 2000, then it seems likely to have been towards the end of that month.
112 The impetus for the meeting seems to have been the then forthcoming introduction in 2000 of GST. (Although there was also evidence that at or around this time Mr Bova and Mr Avati were considering a proposal for the acquisition of an entertainment management agency or business run by a Mr Roy Ortuso (Abstract Entertainment), there is no suggestion that Mr Avati was involved in any discussion with Mr Gillon about that. Rather, advice seems to have been sought by Mr Bova from Mr Gillon in relation to that proposal and, following Mr Gillon's advice, it was not pursued.)
113 Mr Gillon says that at the meeting he attended with Mr Bova and Mr Avati, his advice was sought about GST and the registration of the two as a business. Following the meeting, Mr Gillon (or someone from his office) lodged an electronic application for an Australian Business Number (ABN) in the name of LEM and for a Tax File Number (TFN) for Messrs Bova and Avati as a partnership. Annexures A and B to Mr Gillon's affidavit are copies of the respective applications.
114 The ABN electronic application does not appear to have a date on it, other than a handwritten notation of May 2000. That might suggest that the meeting was in or close to May 2000. However, the TFN application form (unsigned) is dated 31 March 2000 and notes the date of commencement of the "partnership/joint venture" as March 1999, which (given Mr Gillon's recollection that Mr Avati and Mr Bova had told him words to the effect, "We have this unique show… We are partners in the comic act" and that they had been doing it for nearly a year) is consistent with a March meeting date.
115 However, if so, then it seems that there was some delay in Mr Gillon's firm lodging the relevant documents, inconsistent with Mr Gillon's evidence as to his practice in such matters. At p 211 of Mr Bova's bundle of documents is a copy of a letter dated 11 May 2000 stating "We advise that we have electronically lodged your Registration application for an ABN" and enclosing a copy for his records. The TFN was issued on 17 May 2000 (see p 212 of Mr Bova's bundle of documents).
116 Mr Russell concedes that whether or not the meeting was in March or May 2000 may not ultimately be of any real moment. However, if it was in fact in March (as I am inclined, in light of the date on the TFN application form, to think it must have been - since I see no reason why Mr Gillon would have backdated that form, nor was it suggested that he had) it does point to the unreliability on this occasion of Mr Avati's memory for dates. (Mr Avati seems to have placed this meeting at May 2000 because he recalled it taking place not long before he "dismissed Mr Bova" - T 309.) That said, Mr Bova's memory for dates was at least as, if not more, unreliable (manifested in numerous instances during his cross-examination, such as the date on which he reached agreement with Mr Bova for the alleged partnership and also as to dates of personal or other significance, such as his father's death or (relevant to his alleged contributions to jokes) the Gulf war or as to him following Mr Avati's career on YouTube at a date before it was in existence).
117 Whatever the date of the meeting, Mr Gillon (whose evidence I see no reason not to accept) understood the substance of his instructions to be that both parties wished to take the steps necessary to render their partnership (or joint venture) compliant for GST purposes.
118 Mr Gillon understood, from his conversation with the two parties, that whatever comedy act they were involved in had gone on for about a year and that they were continuing in that act (hence the need to register it for GST purposes). His recollection is that they described themselves as "partners". Whether, by so doing, they were intending the legal meaning of the term or were using that expression in a more colloquial sense (the word "partner" now, appropriately or otherwise, being used in day-to-day parlance with a variety of connotations) is another matter.
119 The significance which it seems to me should be drawn from this evidence is that, whether or not Mr Avati or Mr Bova used the word "partners", something must have been said on this occasion to give rise to an understanding on Mr Gillon's part that the appropriate application to be made was for a TFN for either a partnership or joint venture; and Mr Avati cannot have said anything to disabuse Mr Gillon of that understanding. Had Mr Avati said "No, he's my employee", for example, the steps next taken by Mr Gillon would have made no sense.
120 Mr Avati says he was not paying much attention during this discussion as he had decided, or was starting to form the view, that he did not wish to have anything further to do with Mr Bova (T 311.42). Mr Avati accepts that he did not tell Mr Bova of his decision at that time (perhaps because Mr Avati was under the impression he had agreed to a 12 month trial period for their working relationship, whatever the nature of that relationship might have been). However, whatever the reason for his reticence with Mr Bova, Mr Avati cannot have indicated anything to suggest to Mr Gillon that he did not intend to continue to work jointly with Mr Bova in some form of association, since Mr Gillon then proceeded, on his understanding of the pair's joint instructions, to lodge at least the application for an ABN for the two and prepared (though no signed copy of this was in evidence) a TFN application for a partnership/joint venture in which both were identified as partners.
121 That, however, does not lead me to conclude that what happened amounted to any form of admission by Mr Avati that there was at that time (whether March or May 2000) a partnership between the two. The term "partner" could easily have been used in a loose sense to describe the fact that they had been working or collaborating together in the show, in the context of an intention as at that time to take the formal steps to put their relationship on an established footing.
122 (I have considered whether there might have been some potential significance if the meeting had taken place after the events in April 2000 outlined below, ie if it could be said that, Mr Avati having raised concerns about their working relationship in April 2000, this was an indication that Mr Avati had thereafter decided to confirm or continue on with an existing partnership relationship. However, by reference to the date on the TFN application, I think it most likely that the meeting was late March, so this issue does not arise.)
123 In passing, I also note that Mr Avati's stated belief that there was a 12 month trial period could well explain the fact that he said nothing in March or April 2000 as to an intention to bring the relationship to an end; ie if he considered that there was an arrangement in place at least until the end of June 2000 then he may not have felt able to terminate it earlier. Mr Avati's evidence was that he was not content with what Mr Bova was doing and he was looking for a way to restructure their working arrangements for the balance of the "trial period", so as to give Mr Bova an "incentive to work" (T 311). He says at that time (around March to May 2000 when the communications with the parties' respective accountants were taking place) he had not yet decided not to do the national tour with Mr Bova, but he was (at least) forming the view that he did not want to do any further projects after that with Mr Bova (T 310).
124 In that light, the fax to Mr Cassim (Ex K) which was sent in May 2000 (and which I consider below) can be read consistently with the discussions with Mr Gillon. An incentive to put Mr Bova on a percentage profit split (and an enquiry as to what would be a fair percentage split) makes sense only if no profit split for the national tour at that stage had been agreed, but a joint national tour was still under consideration.
· April 2000
125 Matters seem to have started to come to a head in April 2000. Mr Avati says that he had a meeting with Mr Bova on 10 April 2000 (paragraphs 237ff Mr Avati's 12 June 2007 affidavit). Mr Bova denies that meeting. However, it seems that around that time Mr Avati was concerned that Mr Bova was not "pulling his weight". Mr Avati says that he made some handwritten notes (at or prior to this meeting) (Ex GA - 1 to Mr Avati's affidavit pp 419-426 Bundle 1B) and he prepared some typewritten minutes of the meeting (Ex GA- 1, P 429 Bundle 1B). Mr Bova says he was not given a copy either of those notes or minutes. However, there is nothing on their face to suggest the documents were not created in April 2000, when Mr Avati says they were and they are consistent with Mr Avati's preparation, around that time, of the work summary (or job list) which Mr Bova does accept was given to him on his return from Italy in May 2000.
126 Mr Avati's handwritten notes (apparently jotted down, as were his ideas for jokes, on whatever paper was readily to hand - in this instance, Kwik Kopy paper) contain the headings "Social" and "Business" and appear to list various concerns or comments which Mr Avati had on those aspects of his relationship with Mr Bova. Under the heading "Business" were two sub-headings, the second "Workload" containing the following notes (with my emphasis):
· I suggest a percentage split to cover all workload as opposed to salary weekly - different work modes
· It will facilitate other separate venture
· define roles
· suggest jobs PTO…
127 On the next page (p 421 Bundle 1B) are two columns apparently setting out an allocation of roles as between Mr Bova (including "General Managing Duties", "Sponsors", "Technical" and "CD") and Mr Avati ("Performing, Writing, Marketing, Promoting, Publicity, Running Business - Accounts, CD Distribution, Corporate Show - Projecting, Portfolio, Tours, Support Act, Negotiations, Website and Fan Club"). Later in the notes, Mr Avati wrote, "Determine percentage rate on workload. Other projects". The last numbered item noted (with no content or explanation) was "9. Future".
128 Mr Avati's typewritten minutes, which he says he prepared after the 10 April meeting (p 429 Bundle 1B), record the following, consistent with the comment he had noted in preparation for the meeting, "I suggest a percentage split of tour and CD revenues to cater for different workloads in relation to other work business (E.G. Italy, America Etc)". The reference to Italy/America can only be a reference to Mr Bova's business trips overseas, which apparently took place on a not infrequent basis, since there is no suggestion that Mr Avati had any other overseas "work experience" at that stage.
129 While Mr Bova denies the meeting and denies having seen either the handwritten notes (and there is nothing on their face to suggest that the notes were more than an aide memoire for Mr Avati in preparation for a discussion with Mr Bova or perhaps jotting down his thoughts on the matter at around the time of a conversation with Mr Bova) or the typed minutes, those documents (created at a time when there was no dispute as to the characterisation of the pair's working relationship) support Mr Avati's evidence that by at least mid 2000 he had concerns about Mr Bova's performance and, more relevantly perhaps, that he was considering a different arrangement (if any) to be agreed if, going forward, they were to work together on the national tour or otherwise. Moreover, Mr Bova himself appears to have recognised an imbalance in their contribution to their working relationship in that he says that around this time he offered to "pay" (and says he later did) an amount to Mr Avati to reflect his overseas absences, something which is consistent with a finding that, at least as at early to mid 2000, there was a recognition on the part of both Mr Bova and Mr Avati that their respective contributions to the working relationship were unequal and that Mr Avati was unhappy about this - (see paragraphs 79/80 Bova affidavit 28 February 2006).
130 I accept that Mr Avati had genuine concerns as to his social/working relationship with Mr Bova during the early part of 2000 and that he communicated those concerns at some point to Mr Bova. Mr Bova observed, in a facsimile transmission to Mr Gillon around May 2000 (set out later in these reasons), that "joe is fretting" (p 220 Bova documents). It is unlikely that Mr Avati was fretting about any delay in obtaining an ABN or TFN registration (which seems to have been all that Mr Avati could have understood Mr Gillon to be attending to at that stage), since Mr Avati seems to have shown little interest in or understanding of the actual structure or operation of his business affairs at this or any other time, apparently being content to leave this to his accountants/advisers.
131 Furthermore, whether or not Mr Avati's concerns were communicated to Mr Bova in the form set out in the notes, the existence of concerns of this kind casts real doubt in my mind on the proposition that the purpose of the termination, shortly thereafter, of the working relationship between Mr Bova and Mr Avati was to facilitate a diversion or usurpation by Mr Avati of "partnership" profits. It seems to me far more likely that Mr Avati had formed the view that he did not wish to continue to work with Mr Bova for reasons quite unconnected to any moneys which might otherwise have become payable to him. (Indeed, Mr Avati seems to have had a rather laissez-faire attitude to the moneys being derived from the shows, largely treating them as a pool of funds for ongoing expenses or the like, without seemingly giving much thought to how they should be accounted for or what they represented. Accordingly, the suggestion that he brought the relationship to an end so as to keep for himself all the future profits seems to me unlikely.)
132 Any joint venture or partnership which had come into existence (subject to the significance of any agreed trial period) was one which it must have been open to either party to terminate at will or at the very least on reasonable notice (there being no notice period otherwise agreed).
133 (It is noted in Lindley & Banks that there is no duty on a partner to act reasonably in deciding whether to serve a dissolution notice (though suggesting that a notice served with fraudulent intent or mala fide and for an improper purpose will not be upheld), citing Neilson v Mossend Iron Co (1886) 11 AC 298 and Russell v Russell (1880) 14 Ch D 471. In the latter, Jessel MR appeared to draw a distinction between the capricious or mala fides exercise by partners in a partnership of a power to expel one of a number of partners from the case in which there is a single partner who might be able to exercise the power of termination capriciously. I refer also to the discussion by Brereton J in Lawfund in this regard.)
134 I note that on 21 November 2008 Mr Russell confirmed (T 4) that there was no allegation made that the termination of the alleged partnership was itself a breach of fiduciary duty but it was said that Mr Avati's purpose in terminating the arrangement was one of the circumstances to be taken into account when determining whether or not the conduct pleaded was a breach of fiduciary duty.
135 The existence of concerns as to whether Mr Bova was pulling his weight (whether justified on the facts or otherwise) would surely have provided a basis on which Mr Avati could legitimately have decided not to continue the relationship (and the only question then would have been what restrictions there may have been on the use which could be made of any property or opportunities which had come into existence in the course of the relationship).
136 On about 20 April 2000, Mr Avati moved out of the Balmain Cove residence. He and his girlfriend (who he said had prepared or kept his accounting records at that time and with whom he says Mr Bova had argued) moved into an apartment together. Mr Bova was away at the time. He says that when he returned he found that Mr Avati had removed, among other things, computers which contained records of the receipts/expenses or revenue of the shows (though conceding, in the witness box, that the computers taken by Mr Avati were computers which Mr Avati already had when he moved in or had personally acquired thereafter) and mailing lists created during the course of the shows (use of which was, according to Ms Maggio's evidence, made later by Mr Avati).
137 At or about the same time, a Statement of Change of Persons in respect of LEM (Ex D Vol 2, p 731) was signed. It is not clear whether this was in recognition of the status quo (namely that they had been carrying on business together under that name and, if so, what business and whether or not in partnership together) or whether this was a step being put in place for what was to take place in relation either to the national tour (or other proposed joint undertakings between them).
· Commencement of national tour
138 In late April 2000, Mr Avati commenced the national tour (referred to also as the "Lock Up Your Nonna" tour), performing a show which Mr Bova contends was a performance of the show recorded on the "Livin' La Dole-Cheque Vita" CD (described in Ex 1 as the "TDCVS tour"), but which Mr Avati contends was a show similar to that performed at the Enmore Theatre in November 1999 and including material he had written since 1997. (As I understand it, Mr Avati's comedy show involves a combination of skits which may vary from time to time (any one show not being identical in content or format to another), although generally following a similar formula and derived from material developed by Mr Avati over the years.) Mr Avati did say that once he released a new CD his practice was not to perform the routines from his earlier CDs other than occasional 'crowd favourites' (and Mr Bova's account of a conversation with Mr Avati, in which he says the idea of a second CD was raised, supports Mr Avati's assertion that once a CD was released he did not generally perform his older routines). This is of relevance insofar as it suggests that, as the Livin' La Dole-Cheque Vita CD had been released in late 1999, the comedic material for his national tour would be likely to have differed both from the CD and from the Parramatta Riverside Theatre shows from which it had been produced.
139 As at 25 April 2000, a number of regional and other venues had been booked, and tickets sold, for the Lock Up Your Nonna shows through to 8 July 2000. (Mr Avati's evidence in the witness box was that as at 13 July 2000 there were about three months' bookings - T 390.)
· May 2000 - Mr Avati's communication with his accountant
140 On 16 May 2000 a letter (dated 18 April 2000) was sent by Mr Bova to his accountant (Mr Cassim) by facsimile transmission (and re-sent, apparently due to transmission problems, on 17 May 2000). There is no explanation for the delay (from April to May) in sending this letter, if that be the case, or otherwise as to the error in its date. Various copies of the letter were in evidence: one, with a fax header recording transmission on 16 May 2000 at 5.50 pm from "Aussie Fresh" (where Mr Avati's girlfriend worked), being Ex U, and another (Ex K) with a fax header recording transmission on 17 May 2000 at 1.39pm (though page 2 of the facsimile notes transmission at 1.28 pm) from SUBC. Some of the pages on the 16 May 2000 transmission may not have been received, necessitating their re-transmission as the fax headers variously show pages 1/1, 1/2, 2/2 or simply P.1, with a variety of times, whereas the cover page indicates that what is being send is a four page document including the coversheet. It would seem that the most likely explanation was a problem in transmission on 16 May 2000 and that what was intended to be, and presumably ultimately, transmitted was the coversheet containing the letter from Mr Avati to Mr Cassim, a two page "Work Summary" and a one page tour schedule. (Exhibit U is the copy produced on subpoena by Mr Cassim's firm. It does not have the tour schedule attached.)
141 The cover page of the facsimile transmission is on letterhead titled "LOOKOUT ENTERTAINMENT MANAGEMENT for JOE AVATI MANAGEMENT". As noted above, the typewritten date was 18/4/00 (though the fax imprint shows it was sent on 16, or 17, May 2000 as the case may be). There is no suggestion that it was in fact sent earlier than 16 May 2000. In the "from" field appear the typed words: "Lookout Entertainment Management". In the "subject" field appear the typed words: "Re JOE AVATI Shows.
142 The text read:
Dear Jim,
As per our discussion please find as follows all the information for the tour.
The name for the business is The Comedy Corner Pty Ltd
Can you please contact me in regards to what you think should be a fair percentage split based on the workload. Keeping in mind that the figures do not include CD Sales or Merchandise Sales, I would estimate approx another $100K.
Please Note I am only contactable on my mobile - …
Thank you
Joe Avati.
143 The next page was headed "Work Summary" and seems to have been a copy of a document which Mr Bova concedes was provided to him in about April 2000. That work summary refers, under the "Task" heading, to "New CD" and "New Show" as well as "Touring" and typed at the bottom in different font are the words "Joe Avati and Carlo Bova".