Buggy v Reinisch

Federal Court of Australia|2010-08-25|Before: Flick J

REASONS FOR JUDGMENT 1 On 30 October 2009 an Application was filed in the New South Wales District Registry of this Court supported by an affidavit. 2 The proceeding, in very summary form, involves a boat. It is described as a 1993 Norcat 1000 Flybridge Challenger charter game fishing boat known as "Blue Magic". The registered owner of that boat was previously the First Respondent, Mr Frank Reinisch, but is presently the Third Respondent, Ms Carolyn Reinisch. 3 The Application as filed asserts a number of claims, including that the boat is the Applicant's or that Ms Reinisch holds her interest in the boat on trust for him. Declaratory relief is sought. Further or alternatively, the Applicant claims that the First and/or Second Respondents have engaged in misleading or deceptive conduct. Further or alternatively, the Applicant claims that the First and/or Third Respondents knew about or were party to misleading or deceptive conduct. The claims for misleading or deceptive conduct are brought under the Trade Practices Act 1974 (Cth) and/or, alternatively, under the Fair Trading Act 1999 (Vic) or the Fair Trading Act 1989 (Qld). Damages and interest are also sought. 4 The First Respondent, Mr Frank Reinisch, is the son of the Second Respondent, Mr Adam Reinisch, and the husband of Ms Carolyn Reinisch. Since April 2000, Mr Adam Reinisch has had the authority to act on behalf of his son under power of attorney. 5 The proceeding has been stood over from time to time with a view to the parties settling the proceeding. No settlement has taken place. The proceeding came back before the Court for final directions on 23 June 2010 and the hearing itself took place on 30 June and 5 July 2010. 6 To the extent that any application remained outstanding to have the proceeding transferred to the Brisbane Registry of the Court, any such application is refused. 7 The only two affidavits relied upon at the hearing were an affidavit sworn by Mr Buggy on 28 October 2009 and an affidavit sworn by Mr Adam Reinisch on 16 June 2010. Mr Buggy is resident in the Australian Capital Territory and his solicitor is in Sydney; Mr Adam Reinisch is resident on the Gold Coast in Queensland and the solicitor for the Respondents is also in Queensland, although solicitors in Sydney did appear as agents for the Respondents' solicitors at some of the directions hearings in the lead-up to hearing. It may also be noted that, whilst the Respondents were represented at the hearing on 30 June and 5 July 2010, a Notice of Appearance was only filed yesterday, on 24 August 2010. Until this time, no such Notice had been filed as is required by O 9 r 2 of the Federal Court Rules. 8 There is considered to be no reason why the issues to be resolved could not be heard and resolved as conveniently in Sydney as in Brisbane. And, as the proceeding was set down for hearing - and did in fact proceed on 30 June 2010 in Sydney - there was no real prospect that the case could have been heard more expeditiously in any other Registry. 9 The claims for declaratory relief as to the "Blue Magic"being held on trust for the Applicant were abandoned during the course of final submissions.

The Facts in Outline 10 The present unhappy tale begins in 2004 and ends with the present litigation. Along the way there are probably only two events - if not one - that assume any relevance. 11 In February 2004 the "Blue Magic" was registered in the name of Mr Frank Reinisch and was subject to a finance agreement with Capital Finance Australia Limited ("Capital Finance"). There was default in payment in December 2003 and the finance company sought to recover the amount outstanding by repossessing the boat with a view to selling it. The Respondents' fear was that the boat would be sold for less than it was worth albeit at an amount that would satisfy the amount then owing to Capital Finance. 12 Mr Buggy was approached with a view to providing funding. He was approached by Mr Steven Goodman of Allied Mortgage Pty Ltd. Mr Buggy has known Mr Goodman for approximately 20 years. Mr Goodman told him of the difficulties that Messrs Frank and Adam Reinisch were experiencing and Mr Buggy agreed to help. 13 A company with which Mr Buggy was associated, Icehot Pty Limited, had some available moneys. As had been agreed, Mr Buggy contacted Capital Finance in February 2004 and Icehot Pty Limited paid out the amount owing ($138,058.49) in March 2004. Inquiries made by Mr Buggy revealed that on a quick sale the boat was worth about $210,000. In return for paying out the amount owing to Capital Finance, Mr Buggy was to receive $30,000 as a "service fee". Messrs Adam and Frank Reinisch would benefit since the boat would not be sold for less than it was worth and their interest in the boat would be preserved. 14 So much was not in dispute between the parties. 15 The first of the two events that potentially assume relevance occurred in or around February 2004. Mr Buggy and Mr Adam Reinisch met. Mr Adam Reinisch was told by Mr Buggy that he could "only carry the deal for three months. The Company will need its dough then". The account given by Mr Buggy - and not disputed - was that he said to Mr Adam Reinisch: Okay, well, just so that nobody gets any surprises, the deal is, if you don't pay us out I will have no other option but to take the boat and sell it. I'm told that the best that I can get quickly for it will be Two Hundred and Ten Grand and if you aren't able to buy it back at the end of the time I will have to get it sold quickly. My Company will be in as much trouble as you are now if it doesn't get its dough back. So if you are going to run close to the deadline then I suggest that you look for a buyer at a good figure whilst you have the time. Remember I will give you whatever you get over what you owe Icehot at the time it is sold. The whole purpose of the exercise, as I understand it, is to protect your equity in the boat, otherwise the Finance Company will butcher it. It was then anticipated that Mr Goodman could arrange on behalf of Messrs Adam and/or Frank Reinisch re-financing in order to repay the $138,058.49 and to pay the $30,000 variously described as a "service fee". 16 Thereafter, in March 2004, the agreement seemed to change a little. A rental agreement was forwarded to Mr Buggy by Mr Goodman in which the promise to pay $30,000 became transformed into an agreement to pay $10,000 per month. But Mr Buggy apparently did not care that much. He said to Mr Goodman: Just get me the money within 3 months. If you haven't got them refinanced within 3 months I will have to sell the boat. Icehot needs its money back in 3 months. The boat remained registered in the name of Mr Frank Reinisch. 17 Regrettably for all concerned, the three months came and went. The moneys were not paid to Icehot Pty Limited. The boat was moved from its Queensland mooring to Victoria. 18 By May 2004, Mr Buggy had had enough. It was at this point that a real divergence in the evidence emerged between the account given by Mr Buggy and that advanced by the Respondents. 19 On his account, Mr Buggy told Mr Goodman on or about 25 May 2004 to "get me out of the deal". By mid-July 2004, the interest retained by the Respondents in the "Blue Magic" was rapidly diminishing. Mr Buggy estimated that the amount then owing totalled $188,000. That left a residual of only about $20,000 if the boat was sold quickly for the estimated $210,000. 20 It was in that context that the second of the two events which assume relevance occurred. The account given by Mr Buggy was that he agreed to buy the boat from Icehot Pty Limited. Mr Buggy again spoke to Mr Goodman in July 2004. Mr Goodman had a "friend" at Westpac Banking Corporation Ltd ("Westpac") who could arrange finance for Mr Buggy. The conversation between Mr Buggy and Mr Goodman was as follows: Mr Goodman: I spoke to my friend, Ian Travers. He's an originator with Westpac. He says he can do it no worries. Mr Buggy: Okay. Tell Reinisch that he has two choices here. I can take the boat, sell it and give him anything over what he owes Icehot, whatever their equity is, but it will be a quick sale. According to the guy at Southport Marina, I couldn't expect more than $210K. I'd sell at $200K. Now, at the rate that his equity is vanishing, it has to be done immediately or else he's got nothing. His $240K valuation is out the window on a quick sale. Alternatively, I'm prepared to do another alternate deal. If you're certain you can get me the dough, I'll pay out Icehot. Mr Goodman: It shouldn't be a problem. Mr Buggy: Okay. This is the deal: I'll buy the boat from Icehot, including Reinisch's equity, and I'll rent it to him at $4K per month. I'll give him whatever is left of his equity when I buy it, and then it is mine. If he wants to buy it back some time in the future, it will be for a negotiated market price. If he wants to do it that way tell me quickly so that I can get the finance through or make arrangements for a sale.

21 A little later on the same day Mr Goodman telephoned Mr Buggy. Mr Buggy gave the following account of that conversation: Mr Goodman: Reinisch wants to do the rental deal with you. Mr Buggy: Okay. You draw up the rental agreement and put everything in place. It's $4K per month. Get your mate to start getting the finance ready for me. The payout figure for Icehot is about $185,000.00 as of today. That includes $45K for rent. He'll also have to agree to pay my costs of getting all of this financed. It'll probably be about $5,000. These are genuine costs. Mr Goodman: I'm sure Reinisch will be fine with that. Mr Buggy: He should be. The fact is that if I take the boat and sell it for $200K by the end of the month, their true equity is about $10K. I'll take $200K for it. My concern is for Icehot to meet its obligations. If it doesn't get its money back on the boat now, it will lose more than $10K a month. Mr Goodman: I'll get to it then.

22 There was then a further telephone conversation between Mr Buggy and Mr Goodman on or around 21 July 2004 as follows: Mr Buggy: Have you drawn the rental agreement up? Mr Goodman: Not yet. Mr Buggy: It has to be made clear that the $4K per month is rent. I'm no longer like a mortgagee. They're not paying off a loan. If and when they get a settlement or judgment I will negotiate with them if they want to buy the boat back from me. I will be reasonable. I am happy to continue to rent it to them for as long as they like. They don't ever have to buy it if they don't want to. If at some time in the future they decide to stop renting it and don't want to buy it, then I'll do what I like with it. I might even moor it at the back of your place. Mr Goodman: I'm sure that they'll approach you with an offer when they get some money. Adam is desperate to keep Frank in the boat.

23 Surprisingly, perhaps, the years passed with little apparently happening. 24 But in June 2007, Mr Adam Reinisch telephoned Mr Buggy and indicated that he wanted to pay out the moneys owing and he wanted to do so as quickly as possible. The relationship then further deteriorated. 25 On or around 13 May 2009, a Notice of Termination of the rental agreement was forwarded to Messrs Adam and Frank Reinisch by Mr Buggy's solicitors. 26 Between 1 September 2004 and 1 October 2009 the moneys paid by one or other of the Respondents totalled $208,223.62.

The Disputed Agreement - Buy at a Negotiated Price or Repay? 27 The background to the agreement as at July 2004, according to the affidavit evidence of Mr Buggy, was the advance of moneys by Westpac to Mr Buggy whereby he could "buy the boat from Icehot, including Reinisch's equity". The agreement with Messrs Frank and Adam Reinisch described by Mr Buggy was that Mr Buggy was to become the owner of the "Blue Magic" and he would rent the boat to Mr Frank Reinisch at $4,000 per month. If Mr Frank Reinisch wished at a later date to re-purchase the boat he would be free to do so - but at a "negotiated market price". 28 The agreement described in the Applicant's written submissions, however, shifted emphasis from the account advanced in the affidavit and focussed attention more upon inferences to be drawn from a number of documents. 29 It was common ground that Icehot Pty Limited paid out Capital Finance in February 2004 and that moneys were advanced by Westpac to Mr Buggy. The shift in emphasis as to the manner in which Mr Buggy advanced his case ultimately assumed little relevance. Whatever may be the factual basis upon which any agreement was to be discerned, it was the content of the agreement that divided the parties. The dispute between them was whether the agreement was an agreement whereby: · Mr Buggy was to become the owner of the "Blue Magic" (after paying out Icehot Pty Limited) and the boat was to be leased to Mr Frank Reinisch in return for a monthly rental or lease fee of $4,000 and any re-purchase of the vessel was to be thereafter at a negotiated price - as was the case advanced by Mr Buggy; or · Mr Buggy was to become the owner of the "Blue Magic" and moneys subsequently paid were not paid by way of rental or lease payments but rather by way of repayment of the moneys advanced by Mr Buggy - as was the case advanced by the Respondents. The Applicant bore the onus of proving the agreement in respect to which he claimed relief. There was no onus upon the Respondents. 30 The agreement relied upon by Mr Buggy was understood to be one which was partly to be determined by reference to the conversations between Mr Goodman and Mr Adam Reinisch and one partly to be inferred (or at least corroborated) by reference to documents. The basis upon which the agreement was to be determined seemed to change from time to time. But that vacillation may presently be left to one side. The matters relied upon by the Applicant were ultimately understood to be: · a facsimile letter dated 25 February 2004 and on the letter-head of Allied Mortgage Pty Ltd from Mr Goodman to Mr Frank Reinisch; · a handwritten note dated 21 July 2004 signed by Mr Goodman purportedly on behalf of Mr Buggy; · a handwritten facsimile message from Mr Goodman to Mr Adam Reinisch on the letter-head of Allied Mortgage Pty Ltd and dated 2 August 2004; · an undated handwritten note, possibly written by Mr Goodman; · a "Tax Invoice" dated 20 July 2004; · a table headed "Reinisch Late Rental Payments"; · Mr Buggy's account of the events as set forth in his affidavit; and · the failure on the part of the Respondents to call Mr Frank Reinisch who was present in Court during the course of the hearing. 31 It is not considered that that evidence discharges the onus upon the Applicant to make out the terms of any agreement in respect to which the relief he claims can be granted. 32 Inferences from the documents identified by Counsel on behalf of Mr Buggy neither make out the agreement he relied upon or unequivocally corroborate the agreement as set forth in Mr Buggy's affidavit. 33 The letter dated 25 February 2004 unquestionably refers to the purchase of the "Blue Magic" from Capital Finance by Icehot Pty Limited and a suggestion that "a lease be drawn up for 3 months". But, whatever may have been the agreement in February/March 2004, that agreement changed in July 2004. Limited support for an inference that there was to be a lease of the boat may nevertheless be derived from the terms of that letter. It was a starting block upon which the Applicant thereafter sought to build the agreement alleged. 34 Both of the handwritten notes from Mr Goodman also referred to a "lease" of the "Blue Magic". 35 Disturbingly, however, there emerged two forms of the hand-written note dated 21 July 2004 - one being that produced on discovery by the Respondents; the other being exhibited to the affidavit of Mr Buggy. The copy of the note produced by the Respondents read (as best as the handwriting can be deciphered) as follows: 21/7/04 On account of Michael BUGGY the boat is to remain registered in the name of Frank REINISCH & will remain so during the Term of the lease. The encumbrance can be cleared at any time during the Term. A default of the monthly lease payment will result in the Transfer of the boat to MICHAEL BUGGY. [Mr Goodman's signature] O/A M. F. BUGGY The copy of the note exhibited to Mr Buggy's affidavit was different in that that version of the note contained the following additional hand-written words: · a heading at the outset "To Frank Reinisch"; · the addition of the words "rental agreement" after the words "during the term of the lease"; · the addition of the words "by negotiation with Michael Buggy" after the reference to the "encumbrance" upon the boat being able to be "cleared at any time during the term"; and · the addition of the words "with no further opportunity to rent or buy the boat from him" after the reference to default of payments resulting in the "transfer of the boat to Michael Buggy". Although the handwriting is not all that clear, these are understood to be the words which have been added. 36 The prospect that evidence relevant to the present hearing may have been the subject of deliberate alteration is truly disturbing. It potentially exposes a contempt. When the alterations were made, however, and by whom and for what purpose was not explained. Inferences that may have been available were but matters of speculation. 37 Again, limited support for the Applicant's case may be inferred from the reference in that note to a "lease" of the boat and an "encumbrance" on the boat which "can be cleared at any time during the term". That inference is further supported by the facsimile transmission dated 2 August 2004 which also refers to "lease payments" and "weekly payments". 38 To the extent that reliance may be placed upon the additional words added to the hand-written note, it may be on balance that those additional words support the case of the Applicant more than the case for the Respondents. The additional words may perhaps seek to emphasise the nature of an agreement being a "rental agreement" with the only right of Mr Frank Reinisch being an opportunity to re-purchase the boat "by negotiation with Michael Buggy". Inferentially, it may be that Mr Buggy was content to receive a regular monthly lease payment and to re-coup such moneys as he had borrowed to purchase the "Blue Magic" from the sale of the boat if and when he desired to sell it. But if reliance is to be placed upon the hand-written note as altered, it was incumbent upon the Applicant to explain the discrepancy between the two documents. There was no explanation advanced. 39 The form of the "Tax Invoice" dated 20 July 2004 also received attention, particularly during the cross-examination of Mr Adam Reinisch. The "Tax Invoice" stated that the boat was "sold by" Mr Frank Reinisch and "sold to" Mr Buggy at "Cash price" of $210,000 less a "deposit" of $35,000 showing a balance of $175,000. 40 On Mr Buggy's account, this "Tax Invoice" formed part of the re-financing of the boat whereby Mr Buggy could borrow moneys to pay out the moneys owed to Icehot Pty Limited. On Mr Adam Reinisch's account, the "Tax Invoice" contained many errors and was part of a "sham". The "Tax Invoice" was signed by Mr Adam Reinisch under power of attorney for Mr Frank Reinisch. On its face, however, the "Tax Invoice" says nothing as to the fate of the boat after it was sold to Mr Buggy - it says nothing as to whether it was to be thereafter the subject of a lease and nothing as to whether the boat could be re-purchased and nothing as to the character of moneys that were later paid. 41 Little reliance can be placed upon the heading "Reinisch Late Rental Payments" in the undated table document. How Mr Buggy characterised the payments he received says nothing as to the character that Mr Reinisch may have ascribed to the payments made. The circumstances in which the table was prepared and for what purposes were also not explained. 42 If an assessment is to be made confined to this evidence, there is accordingly a basis upon which an implication or an inference could be drawn that there was agreement that the "Blue Magic" would be used by the Respondents and that there was to be a lease of that boat. A characterisation of the arrangement, or at least a part of the arrangement, as being a "lease" goes some way towards a characterisation of any moneys paid as lease payments rather than a repayment of moneys owing. But any determination as to whether this was a separate and discrete agreement or was but part of a broader agreement as contended on behalf of Mr Buggy can only be made by reference also to his affidavit. The inferences to be drawn from the documents must be assessed as against the evidence in its entirety.

Mr Buggy's Account and the Failure To Call Mr Goodman 43 To buttress the inferences sought to be drawn from these documents, reliance was not surprisingly also placed by Counsel for the Applicant on Mr Buggy's own account of the agreement. Reliance was also placed upon an asserted failure on the part of the Respondents to put that account in issue. 44 Even if the divergence between Mr Buggy's account of the agreement and the identification of the agreement as advanced in the Applicant's written submissions is left to one side, acceptance of Mr Buggy's affidavit evidence nevertheless has to confront a number of significant obstacles. 45 First, Mr Buggy only recounted four relevant conversations he had directly with any of the Respondents. The first was at the outset in February 2004 when Mr Buggy told Mr Adam Reinisch that the amount required to pay out Capital Finance was $138,058.49 and not the $130,000 which was previously contemplated. Mr Buggy then also told Mr Adam Reinisch what the agreement was and summarised it "just so that nobody gets any surprises". That conversation, however, can be largely left to one side as the relevant agreement was one that was later to emerge. A second conversation took place in June 2007 when Mr Adam Reinisch telephoned Mr Buggy and told him that he wanted "to pay it out". In January 2008 Mr Adam Reinisch again contacted Mr Buggy and told him that all that he was going to pay thereafter was the amount Mr Buggy was paying monthly to Westpac ($3,700). Mr Buggy said that he told Mr Adam Reinisch: "Who do you think you are? You know what the deal is. Don't try and change it now". 46 None of these conversations support the agreement sought to be advanced by Mr Buggy. 47 That agreement only finds support in Mr Buggy's affidavit to the extent that Mr Buggy there sets forth conversations between himself and Mr Goodman as to what he said to Mr Goodman and what Mr Adam Reinisch had said to Mr Goodman. Not surprisingly, objection was properly taken at the outset of the hearing to the relevance and admissibility of those conversations since Mr Goodman had not been called as a witness. The conversations were, however, admitted "subject to relevance". Given the hearsay nature of the greater part of such evidence, it was difficult to see what relevance the evidence could ultimately assume or what reliance could possibly be placed upon conversations between Mr Goodman and Mr Adam Reinisch to which Mr Buggy was not a party. But to adopt such a course did not prolong the hearing and gave Mr Buggy every opportunity to potentially develop his case in such a manner as he saw fit. 48 The conversations between Mr Goodman and Mr Adam Reinisch as recounted by Mr Buggy, it is ultimately concluded, assume no relevance. The hearsay nature of the evidence was self-evident from the outset. The evidence got no better. The only relevance of the conversations was the impermissible attempt to prove the content of conversations to which Mr Buggy was not a party. Even if the conversations assume some relevance, the weight to be given to those conversations is minimal. Even on the account provided by Mr Buggy, there was reason to question whether Mr Goodman was accurately and reliably conveying instructions as between Mr Buggy and Mr Adam Reinisch. 49 Further reason to question whether Mr Goodman was accurately conveying the instructions arises from the divergence between the account advanced by Mr Buggy as to the exchanges between Mr Goodman and Mr Adam Reinisch and the account of those conversations advanced by Mr Adam Reinisch. Mr Reinisch's account was different to what Mr Buggy had instructed Mr Goodman to tell Mr Reinisch. In his oral evidence, Mr Adam Reinisch was asked to recount what Mr Goodman had said to him in "about June or July" and he responded as follows: Well, Mr Goodman told me that he had arranged a loan from Westpac. He can't arrange loan for Frank. He had arranged a loan for Mr Buggy. Mr Buggy said he will take the loan in his name but Frank has to pay back within five years and the amount of the loan was $175,000. We paid back monthly. Monthly repayments of one thousand - sorry, four thousand - $3946 which included the insurance payment as well. 50 To the extent that Mr Buggy wished to rely upon his instructions to Mr Goodman being conveyed to Messrs Adam or Frank Reinisch, and the response of what one or other of those Respondents said to Mr Goodman, he could not do so by his own evidence. 51 There was thus no conversation directly between Mr Buggy and either Mr Adam Reinisch or Mr Frank Reinisch as to the agreement as it unfolded in July 2004. 52 A second obstacle confronting acceptance of Mr Buggy's account of the agreement of July 2004 was the absence of any executed agreement supporting a conclusion that the agreement was to rent or lease the "Blue Magic" and for the vessel to be re-purchased at a negotiated price. Little may turn on the fact that the form of "Rental Agreement" first contemplated in March 2004 was not signed. That agreement stated in part: The owner agrees to provide the renter with the opportunity to purchase from the owner within a period of three (3) calendar months from the date hereof the vessel at the original purchase price paid by the owner plus the monthly rental fee of Ten Thousand Dollars ($10,000.00) per month or part thereof. That proposal however was surpassed by what was referred to as the "Long Form Rental Agreement" which was entitled "Deed of Rental Agreement". The parties to that agreement were set forth as Icehot Pty Limited (as "owner") and Mr Frank Reinisch (as the "renter") and it provided in part as follows (without alteration): DURING THE PERIOD OF RENTAL THE RENTER WILL HAVE THE RIGHT TO SELL OR PURCHASE THE VESSEL WITH THE OWNERS CONSENT FOR A CONSIDERATION OF $138.058 PLUS AN ACCRUING MONTHLY SUM OF $10.000 TO BE ADDED TO THE PRINCIPAL AMOUNT. THE SALE PRICE, INCLUSIVE OF GST WILL BE, $148.058 AS AT 5.4.2004. $158.058 AS AT 5.5.2004. $168.058 AS AT 5.6.2004. AN INVOICE WILL ISSUE BBY THE OWNER AT ANY NOMINATED DATE WITHIN THIS TERM FOR THE NOMINATED AMOUNT TO INCLUDE THE GST COMPONENT, FOR EXAMPLE. 5.6.2004 $152.780. Plus GST $15.278 Total $168.058 Emphasis was placed by Mr Buggy on the expression "or purchase". But the agreement exhibited to Mr Buggy's affidavit was not signed by either Mr Frank Reinisch or on behalf of Icehot Pty Limited. Mr Buggy believed that he "signed it and returned it to Goodman by facsimile". Why the original was not produced by Mr Buggy or why Mr Goodman was not subpoenaed to produce the copy sent to him by facsimile was not explained. Mr Buggy also stated that Mr Goodman told him that "Reinisch is happy with the rental agreement. He's signed it". But no signed copy was produced by the Respondents. 53 A third obstacle confronting Mr Buggy was his failure to call Mr Goodman. His failure to do so provides reason for inferring that Mr Goodman would not have assisted in the case sought to be advanced by Mr Buggy: Jones v Dunkel (1959) 101 CLR 298. In a passage oft-repeated Kitto J theresaid at 308: [A]ny inference favourable to the plaintiff for which there was ground in the evidence might be more comfortably drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. The so-called "rule" in Jones v Dunkel is essentially one of commonsense: Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336. Kirby P (as His Honour then was) there observed at 343: … The rule in Jones v Dunkel is one of commonsense reasoning. It provides that an unexplained failure by a party to call a witness may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the case of the party who might be expected to call the witness. It is important to note that this is a facility. It is not an obligation in the reasoning of the decision-maker: cf Café v Australian Portland Cement Pty Ltd(1965) 83 WN (Pt 1) (NSW) 280 at 287; [1965] NSWR 1364 at 1370. The rule has no application if the failure to call the witness is satisfactorily explained or readily understood. The usual explanations are the absence of a witness from court and a reasonable explanation for not compelling the witness' attendance by subpoena. But failure by a party to call a witness likely to be friendly to the interests of the other party has been held sufficient to entitle a court not to draw an adverse inference from such failure. There is no satisfactory reason why Mr Goodman was not called by Mr Buggy. Mr Buggy and Mr Goodman had had a "business relationship … for approximately 20 years" and Mr Goodman had acted "as an advisor" to Mr Buggy and had Mr Buggy's authority to assist him with "day-to-day transactions". 54 If called, Mr Goodman could have provided his own account of what was said to Mr Adam Reinisch and could also perhaps have provided an explanation as to the differences between the two variants of the handwritten note dated 21 July 2004. There was also some evidence that may have been given by Mr Goodman to explain (at least in part) the absence of an executed copy of the "Long Form Rental Agreement" being produced. When being cross-examined as to this document, the following exchange occurred: Mr Delaney: Did you ever ask for a copy of that document from Mr Goodman for these proceedings? Mr Buggy: For these proceedings, yes. Mr Delaney: And that was not forthcoming? Mr Buggy: No, he gave an explanation. Mr Delaney Would you like to provide that explanation? Mr Buggy: He said that he believes Adam Reinisch removed it from the file when he gave him access to the file.

The absence of Mr Goodman, it is considered, provides further reason to question whether there was in fact agreement on the part of the Respondents in accordance with Mr Buggy's understanding. 55 Although at one stage the Respondents indicated that they intended to seek leave to issue a subpoena to secure the attendance of Mr Goodman, that application was never made. Why the application was foreshadowed - but not pursued - was not really explained. But it is not considered that the failure on the part of the Respondents to pursue their foreshadowed application provides any reason for concluding that any failure on their part to call Mr Goodman should lead to any inference being drawn as against them. Mr Goodman was the person with whom Mr Buggy had the business relationship and the person he entrusted with the responsibility of relaying his requirements - not the Respondents. 56 The submission advanced on behalf of Mr Buggy that an account contrary to the one he was advancing had not been properly put to him in cross-examination, and his reliance upon Browne v Dunn (1894) 6 R 67, is rejected. In that context it may be noted that the solicitor appearing on behalf of the Respondents (Mr Delaney) frankly acknowledged that he may not have executed the cross-examination of Mr Buggy in the same manner as experienced Counsel. A potential gap in his cross-examination did in fact emerge. At that stage when Mr Delaney indicated he had no further questions of Mr Buggy, the witness was asked to leave the hearing room and an exchange occurred with Mr Delaney. It was suggested to him that one way in which the case was being advanced on Mr Buggy's behalf was that the agreement as at July 2004 was an agreement to pay both the moneys that had been paid to avoid the "Blue Magic" being sold off by Capital Finance together with an agreement to pay moneys as rent. The manner in which Mr Buggy was advancing his case had been made apparent from the outset. It was his case that the moneys paid had been paid as rent and not as re-payment of a loan and that the Respondents could re-purchase the boat at a negotiated price. It was suggested that Mr Delaney had not "ever suggested to Mr Buggy that that wasn't the deal". Mr Buggy then resumed his position in the witness box and further questions were put, including the following exchange: Mr Delaney: I put it to you that there was no written agreement between the parties as to rent, as to any rental agreement in July 2004? Mr Buggy: That's not the case. Mr Delaney: I put it to you that the agreement was that you would obtain a finance facility because the Reinisch's could not. You received your $30,000 risk fee. You obtained the finance. They are to pay all costs associated with that finance facility, and upon default then you have certain remedies; is that true? Mr Buggy: You're confusing Icehot. That question referred to me initially as Icehot, and then as me. And the question is absolutely nowhere near the truth.

The written submissions filed in court on behalf of the Applicant on 5 July 2010 contended that "it was not put to Buggy that: (i) the payments made by Frank were not in the nature of rental payments; (ii) the payments made by Frank to Buggy were for the repayment of a loan between them; (iii) the terms of the agreement between him and Frank was that upon Buggy's loan from Westpac being repaid, title to Blue Magic would reside in Frank; …" So much may be accepted. Although an experienced cross-examiner may well have executed the task differently, it is nevertheless considered that Mr Buggy was adequately confronted with the contrary version of events being relied upon by the Respondents and that Mr Buggy had an adequate opportunity to respond. The factual issues dividing the parties were, after all, within a narrow compass and the chasm dividing the parties well recognised. 57 Notwithstanding the deficiencies in the Applicant's evidence, or more probably because of those deficiencies, the Applicant sought to make something of the fact that Mr Frank Reinisch was in Court throughout the hearing - but not called to give evidence on behalf of the Respondents. 58 But nothing, with respect, turns upon the fact that Mr Frank Reinisch did not give evidence. Why he was not called was not explained. But it remained a matter for the Applicant to make out its own case. How the Respondents answered that case was a matter for them to determine. 59 It may for present purposes be accepted that such fundamental rules of evidence as Jones v Dunkel and Browne v Dunn were not intended to be diminished in importance by provisions such as ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth). Although in some statutory contexts mandates comparable to those set forth in ss 37M and 37N may be regarded as "a jumble of broadly expressed goals" (cf Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1436 at [161], 171 FCR 174 at 208 per Lindgren J), no mandate for this Court to act as "quickly, inexpensively and efficiently as possible" could act as a licence to proceed in a procedural (or evidential) manner which is unfair to a witness or a party. There has been no unfairness to any of the parties arising from the manner in which their competing cases have been conducted. 60 Neither the individual parts of the edifice upon which Counsel for the Applicant sought to found an inference or an implication that the agreement was as set forth by Mr Buggy in his affidavit (or as set forth in the written submissions), nor those parts taken together, support the granting of relief to the Applicant. The onus of proof imposed upon him has not been discharged.

The Evidence of the Respondents 61 Perhaps in anticipation of difficulties that he may encounter in making out all elements of the agreement upon which he wished to rely, Counsel for the Applicant contended that he only bore the onus of making out that Mr Buggy purchased the "Blue Magic". Thereafter, it was understood that he contended that the Respondents bore the onus of establishing that the moneys paid were anything other than rent. The Respondents, of course, maintained that the moneys paid were repayment of a loan. 62 That submission of the Applicant has been rejected. 63 Some brief observations should nevertheless be made as to the Respondents' evidence. 64 All Respondents were in Court on 30 June 2010. Only Mr Adam Reinisch swore an affidavit that was relied upon by the Respondents. Objection was rightly taken to much of that affidavit. Much of it was rejected. But leave was given for oral evidence to be adduced in an attempt to redress the deficiencies the affidavit exposed. 65 The oral evidence of Mr Adam Reinisch was less than satisfactory. 66 To a large extent Mr Adam Reinisch was more willing to explain his own case than to answer the questions being asked of him. But that may well have been due to his age and the stress occasioned by the courtroom environment and its procedures being an alien environment. Less able to be satisfactorily explained, however, was his eagerness to embellish his explanations. When confronted with his signature on the "Tax Invoice" he thus repeatedly explained that he signed it "under duress" or "extreme duress". He said he had been "intimidated" into signing it. But no reference had previously been made to any "duress" that had been exerted upon him by Mr Buggy. Nor to any "intimidation". An eagerness and a commitment to retain the boat may be accepted; but the explanation of "duress" was less than satisfactory and less than convincing. 67 But the criticism directed by Mr Adam Reinisch to the "Tax Invoice" is not totally misplaced. It is a document which forms but part of the overall matrix of events from which the terms of an entire agreement between Mr Buggy and Mr Frank Reinisch are to be discerned. It is not a document which forms a discrete agreement unto itself between the parties. And there is reason to question the reliability of the document itself. There is, for example, little basis upon which it could be concluded that any deposit of $35,000 was in fact ever paid; yet that is part of what the "Tax Invoice" purports to record. 68 So, too, is Mr Adam Reinisch's evidence in respect to the 2 August 2004 facsimile forwarded by Mr Goodman open to criticism. He initially said: I haven't seen this document, sorry, because it's got my wrong fax number on it. A little later in the context of discussing how this document came to be in the possession of the Respondents' solicitor the following exchange occurred: Mr Hyde: Mr Reinisch, that evidence simply is not true, is it? Mr Adam Reinisch: Well, I'm sorry, but I have never received this - never had this document in my hands, and as I said again, it has not got my fax number on it. That's not my fax number. This number is not my fax number.

The cross-examiner then moved to other topics but later returned to the issue when the following exchange occurred in respect to the facsimile number recorded on the document ending with "362": Mr Hyde: Now, Mr Reinisch, your [sic] gave evidence - perhaps I'll ask you again. Mr Reinisch, can you, again, tell the court what your facsimile number was in 2004? Mr Adam Reinisch: I think the same number. Mr Hyde: Which is?

Mr Adam Reinisch: 55031363. Mr Hyde: And have you ever used or operated a facsimile which has the number 55031362? Mr Adam Reinisch: Well, it could have been in another apartment. Mr Hyde: Mr Reinisch, have you ever used or operated a facsimile number which ends in the numbers 362? Mr Adam Reinisch: Yes, I have - in another apartment. Mr Hyde: When you say "another department," [sic] Mr Reinisch, what do you mean? Mr Adam Reinisch: We lived in another apartment. Mr Hyde: When did you live in an apartment where you had a fax number which ended in 362? Mr Adam Reinisch: Well, it goes back quite awhile. I can't recall to be quite honest. Mr Hyde: Did you live in that apartment in 2004? Mr Adam Reinisch: 2004. I can't recall. Mr Hyde: It is possible you lived in that apartment in 2004? Mr Adam Reinisch: It is possible. Yes.

Mr Adam Reinisch's attempt to explain why he had never seen a document by reason of it being sent to the "wrong fax number", only for it to emerge that the number to which the document was sent was a number previously used by Mr Adam Reinisch - and possibly used in 2004 - is not the hallmark of a witness telling "the truth, the whole truth and nothing but the truth". 69 That, of course, is part of the oath now set forth in the Schedule to the Evidence Act 1995 (Cth) and part of the oath in fact taken by Mr Adam Reinisch. The oath itself has been traced back to at least 1649: Mellinkoff, The Language of the Law (1963) at 172. An oath to "tell the truth", it has also been pointed out long ago, was not always regarded as an oath to tell "the whole truth": Silving, 'The Oath' (1959) 68 Yale L J 1329 at 1346 and 1527 to 1577. It should constantly be recalled that the requirement that an oath or affirmation be administered, as contemplated by s 44(1) of the Federal Court of Australia Act 1976 (Cth) and by s 21 of the Evidence Act 1995 (Cth), is not merely a procedural step which is but a precursor to a witness thereafter answering such questions as may be asked in such a manner as the witness may see fit. An oath or an affirmation is (in part) a solemn reminder to any witness of the serious obligation imposed to give a truthful account. The evidence given by a witness is central to the administration of justice. 70 In the absence of explanation, some of the answers given by Mr Adam Reinisch may perhaps be the hallmark of a witness determined to tell far less than the "whole truth" and only so much of the truth as assisted his case. The "whole truth" as to the fax number, however, did finally emerge. 71 Criticism can also be levelled at Mr Adam Reinisch's evidence that he never received any correspondence whatsoever in which reference was made to "a lease payment being made in respect of the boat." That evidence does not sit comfortably with the 25 February 2004 facsimile from Mr Goodman or the handwritten notes of Mr Goodman being produced on discovery by the Respondents. 72 That assessment of his evidence has been taken into account in trying to resolve the question as to whether Mr Adam Reinisch's account of the agreement was more an account of how he would like to have remembered the agreement to be rather than an account of the agreement as it actually was - albeit an agreement entered into at a time when he may have had little choice and an agreement which later turned out to be less satisfactory than he would now like. 73 The evidence of Mr Buggy during cross-examination, by way of contrast, was far more satisfactory. He gave his evidence in a manner which was direct and straightforward. 74 If it were necessary to make any findings of fact based upon the evidence of Mr AdamReinisch, difficulty would have been experienced in accepting parts of his evidence. 75 The central focus of conflict between the two witnesses nevertheless remained whether such moneys as were paid to either Mr Buggy or Icehot Pty Limited was mere payment of rent or were moneys paid to repay a loan. 76 The failure on the part of Mr Buggy to discharge the onus of proof upon him by his own evidence was not redressed by any evidence given by the Respondents. 77 No inference should be drawn by reason of the failure on the part of the Respondents to call Mr Frank Reinisch. The conversations upon which the events turned were relevantly conversations with Mr Adam Reinisch.

Conclusions 78 No case, it is considered, has been made out by the Applicant such as to found any of the relief which was ultimately claimed. Although it was common ground that Mr Buggy provided financial assistance to the Respondents in the form of Icehot Pty Limited paying moneys to Capital Finance, all that has relevantly been established is that, thereafter, moneys totalling $208,223.62 were paid to Mr Buggy by one or other of the Respondents. It is not concluded that those moneys were the payment of rent for the "Blue Magic". 79 The primary manner in which the case was advanced on behalf of the Applicant was to seek to establish an agreement in July 2004 for both the repayment of moneys and the payment of rent and the right to negotiate a price to re-purchase the "Blue Magic". The Applicant has failed to make out that agreement. That failure also carries with it the failure to separately make out any case in relation to misleading and deceptive conduct by reason of the "Tax Invoice" and the failure of claims for damages and interest. The representation relied upon, namely that the title to the "Blue Magic" was to be transferred to Mr Buggy, may be accepted. What is not accepted is Mr Buggy's characterisation of the moneys received by him from September 2004 as rent, rather than repayments, and his entitlement to relief once those moneys have been paid. What is also not accepted is that whatever representation may be distilled from that document, it is not a document which can be construed as a discrete document divorced from the context in which it emerged. 80 There is no reason why costs should not follow the event. The Applicant is to pay the costs of the Respondents.

ORDERS 81 The Orders of the Court are: 1. The Application as filed on 30 October 2009 is dismissed. 2. The Applicant is to pay the costs of the Respondents.

I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Fair Trading Act 1999(Vic)

Federal Court Rules Trade Practices Act 1974(Cth)

Trade Practices Act 1974(Cth)

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