Coulton v Knobloch

Factual Background 9 The following factual background is relevant to a determination of the appeal. 10 In early to mid 2015, Mr Coulton and Mr Knobloch entered into a business venture by which they intended to import and sell the alcoholic energy drinks in the Australian market. 11 In late July 2015 and early August 2015, Mr Coulton, Mr Knobloch and Mr Sam Christie, a business associate, entered into the July Agreement. Pursuant to the terms of the July Agreement, Mr Coulton, in conjunction with his son, Mr Josh Thomson, assumed responsibility for purchasing and importing the alcoholic energy drinks. Each of Mr Knobloch, Mr Coulton and Mr Christie agreed to invest $34,000, or one third of the total cost of the first "trial" container of drinks. Each was entitled to a 33.3% share in ownership and profits. 12 Mr Coulton then arranged for the purchase of the alcoholic energy drinks from Melchers, which were subsequently shipped to Australia on or about 12 September 2015. 13 On 30 September 2015 an invoice dated 15 July 2015 from Melchers for €61,056 (Melchers invoice) addressed to West Coast Traders Ltd was emailed from an address "westcoastraders@gmail.com" to Barry Bollinger of the Bollinger Shipping Agency, copied to Mr Knobloch and Mr Christie. West Coast Traders Ltd was a company of Mr Coulton incorporated in the United Kingdom. 14 On or about 28 October 2015, the container with the alcoholic energy drinks arrived in Australia. 15 Mr Coulton subsequently provided an invoice issued by West Coast Traders (Z) Ltd (West Coast Traders (Z) invoice) to Mr Knobloch in relation to the shipment of the alcoholic energy drinks. This latter invoice, which is also dated 15 July 2015, purported to record the sale of the alcoholic energy drinks by West Coast Traders (Z) Ltd to Eastern Building and Maintenance (an entity alleged to be associated with Mr Knobloch) at a price of €61,056. West Coast Traders (Z) Ltd was a company of Mr Coulton incorporated in Zanzibar. 16 In or about late November 2015, however, it was discovered that the alcoholic energy drinks had passed their expiry date of 2 March 2015. 17 In December 2015, Mr Knobloch telephoned Melchers and was informed by a representative that the Melchers invoice did not conform to Melchers' records. Melchers advised Mr Knobloch that it had in fact sold Mr Coulton the alcoholic energy drinks on 7 September 2015 at the "very" discounted price of €5,760 because the goods had expired, rather than €61,056 as Mr Coulton had represented to Mr Knobloch. 18 On 13 September 2016, Mr Knobloch relied upon the July Agreement to obtain the Default Judgment against Mr Coulton in the sum of $88,230.72 inclusive of costs. Mr Knobloch sought damages for breach of implied warranties for sale of goods which were not merchantable in the Australian market. He also pleaded fraud on the basis that Mr Coulton had falsified the Melchers invoice. 19 On 6 March 2017, the Bankruptcy Notice was issued based on the Default Judgment, which claimed that Mr Coulton owed $91,409.86 to Mr Knobloch, including interest since the date of the Default Judgment. 20 On 5 October 2017, the Sequestration Order was made against Mr Coulton's estate by a Registrar of the Federal Circuit Court of Australia by reason of Mr Coulton's failure to comply with the Bankruptcy Notice. As previously noted, Mr Coulton was incarcerated throughout the debt-recovery process and did not participate in the hearing.

Primary judgment 21 On 5 January 2018, Mr Coulton filed the Application in the Federal Circuit Court for a review of the making of the Sequestration Order under s 104(3) of the Federal Circuit Court of Australia Act 1999 (Cth). 22 Mr Coulton sought an order that the orders made by the Registrar on 5 October 2017 be "stayed or dismissed" to allow him to have the Default Judgment set aside or dismissed by the Local Court. 23 The hearing before the primary judge was a hearing de novo. Mr Knobloch was therefore required to re-prove to the satisfaction of the Court the matters required under s 52(1) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). These matters included that the debt on which Mr Knobloch, as the petitioning creditor, relied was still owing. 24 The primary judge determined that it was appropriate to go behind the judgment to determine whether in truth and reality a debt was owed by Mr Coulton to Mr Knobloch, and the parties were given the opportunity to file further evidence. 25 The Application was ultimately heard on 21 October 2019 and 1 November 2019. Judgment was delivered on 4 September 2020. Mr Coulton was self-represented at all times. 26 Much of Mr Coulton's claim was directed to his submission that he was not afforded procedural fairness in the period leading up to the entry of the Default Judgment in the Local Court, largely due to issues arising as a result of his incarceration throughout the debt-recovery process. The primary judge rejected Mr Coulton's submissions and found (at J [20]) that, considering the de novo nature of the review, Mr Coulton's concerns did not establish that the Sequestration Order ought not to have been made. 27 The primary judge next considered whether Mr Knobloch had proved that a debt amounting to $5,000 or more was owing for the purposes of s 52 of the Bankruptcy Act. 28 Mr Knobloch submitted that Mr Coulton had sold goods which were not merchantable nor fit for purpose, and which needed to be destroyed at his expense. 29 Mr Coulton disputed his personal liability to Mr Knobloch. As in the current proceedings, Mr Coulton submitted to the primary judge that Mr Knobloch had relied upon the West Coast Traders (Z) invoice rather than the Melchers invoice at customs to import the container of alcoholic energy drinks. According to Mr Coulton, by using this invoice, Mr Knobloch confirmed that their agreement was between Mr Knobloch and West Coast Traders (Z) Ltd rather than Mr Coulton personally. 30 Mr Coulton further submitted that the July Agreement was not the relevant contract. Instead, he claimed that the contract in relation to the sale of drinks was in fact a contract dated 6 April 2015 (April contract), which was between West Coast Traders (Z) Ltd and Eastern Building and Maintenance. 31 Mr Knobloch gave evidence that he had not seen the April contract before it was shown to him in the proceedings before the primary judge. Mr Coulton, however, claimed that the signed April contract had been seized by the police at the time of his arrest in 2016. The primary judge did not ultimately make any definitive finding on the existence of the April contract. 32 Relying on the West Coast Traders (Z) invoice and the purported April contract, Mr Coulton argued that any claims for damages by Mr Knobloch should be directed to his company, West Coast Traders (Z) Ltd, and he was not personally liable for any losses suffered by Mr Knobloch. 33 The primary judge rejected these submissions. 34 Her Honour examined the contents of the July Agreement, which she set out in full at J [32]: Energy Australia 24/07/2015 Importation and Distribution Rights Contract 2015 - 2016 Roland Knobloch, hereby agrees to acquire 33% of the importation and distribution rights for Xplosiv Energy in Australia from 24/7/2015. In accordance with this agreement Roland Knobloch, will invest $34,000 AUD, Mark Coulton will invest $34,000 and Sam Christie will invest $34,000 which will represent for each invest[or] exactly 33.3% of the total cost for the first "trial" container (total value $102,000 AUD). This contract will expire in 12 months upon which negotiation between the 3 parties; Mark Coulton and Josh Thomson t/a West Coast Trading (Z) LTD, Samuel Christie t/a The Christie Corporation and Roland Knobloch. Mark Coulton and Josh Thomson, and will be charged with the purchasing, importation of all products and sales. They will be entitled to exactly 33.3% share in ownership and profits. Samuel Christie will be charged with the sale and distribution of all products in Australia. He will be entitled to exactly 33.3% share in ownership and profits. Roland Knobloch will be a "silent" investor. This position entails strictly financial investment and no operational involvement. This position at the conclusion of the first 12 months can be renegotiated to take a greater involvement in the daily operations if desired. He will be entitled to exactly 33.3% share in ownership and profits for as long as we import the Xplosiv energy Drinks into Australia. It is the understanding that all parties will keep their original investment of $34,000 revolving to purchase another container when the first container has been sold and so on. Investors have the option to receive the profits from each container after the container has been sold. Upon completion of all parties investment the container will be purchased and imported (all duties, taxes and costs inclusive). At this stage Samuel Christie will withdraw samples to circulate to relevant parties who have registered interest. Signatures Roland Knobloch Samuel Christie Josh Thomson Mark Coulton 35 The primary judge noted that there was no dispute that the July Agreement was in the nature of a joint venture entered into by Mr Coulton, Mr Knobloch and two other parties. Her Honour found that the July Agreement "dealt with the entirety of the arrangement between the parties" giving rise to the debt claimed by Mr Knobloch and that "alcoholic beverages were acquired by Mr Coulton from Melchers on behalf of the parties to the agreement and shipped to Australia (albeit that he used the vehicle of West Coast Traders to buy and ship the goods)": J [58]. 36 The primary judge found that the July Agreement was separate from any prior arrangement that West Coast Traders (Z) Ltd might have entered into and there was no evidence of any payment of $35,000 by Mr Knobloch to West Coast Traders (Z) Ltd, as provided for in the purported April contract, rather the evidence established a payment of $34,000 to Mr Coulton's bank account as provided for in the July Agreement: J [59]. 37 The primary judge then addressed the references to West Coast Traders Ltd and Eastern Building and Maintenance in the Bill of Lading at J [61], stating: While in the Bill of Lading the consignor of the goods was described as West Coast Trading Ltd and the consignee as Eastern Building and Maintenance, it was Mr Coulton personally who was a party to and signed the agreement of 24 July 2015. In accordance with that agreement, Mr Knobloch paid his $34,000 investment into Mr Coulton's Australian bank account between 4 August and 7 August 2015 as evidenced by copies of electronic bank transfers. Mr Coulton chose to acquire and ship the goods the subject of the agreement of 24 July 2015 by using the name West Coast Traders Ltd as appears on the Bill of Lading dated 15 September 2015 (not, I note, West Coast Traders (z) Ltd which he now says sold such goods to Eastern Building and Maintenance on 6 April 2015). Eastern Building and Maintenance was described as consignee or buyer in documents which apparently emanated from Mr Coulton. This does not displace Mr Coulton's obligations under the agreement of 24 July 2015 to be responsible for purchasing and importation costs on behalf of the venturers of a container of cans of Xplosiv energy drinks to the total cost of $102,000 for sale and consumption in Australia. He failed to perform his obligations, thus breaching the contract. [Emphasis added.] 38 Finally, the primary judge considered and rejected Mr Coulton's contention that Mr Knobloch had used the West Coast Traders (Z) invoice, rather than the Melchers invoice, to clear the goods at customs, stating at J [62]: Mr Coulton claimed he used an invoice dated 15 July 2015 from West Coast Traders issued to Eastern Building and Maintenance to ship the goods. However there is evidence that an email account in the name of West Coast Traders emailed the shipper on 30 September 2015 with a copy of an invoice for €61,056, which was apparently the invoice purportedly issued to West Coast Traders by Melchers on 15 July 2015. Mr Knobloch was copied in to this email. In any event, I accept that this purported Melchers invoice was provided to and used by Mr Knobloch in relation to Customs broking in Australia for the shipment in question. Consistent with this, when he discovered that the goods had passed their expiration date, Mr Knobloch contacted Melchers. I accept that Melchers informed Mr Knobloch that this invoice of 15 July 2015 was not a genuine invoice and that in fact it had sold expired drinks to Mr Coulton (in September 2015) for €5,760. These were the goods that were shipped to Australia by Mr Coulton in purported compliance with the agreement of 24 July 2015. [Emphasis added.] 39 Accordingly, the primary judge did not accept Mr Coulton's argument that he was not personally liable to Mr Knobloch, and rejected Mr Coulton's claim that the April contract was "the relevant contract" grounding the debt: J [67]. 40 The primary judge clarified, importantly, that although Mr Coulton had used West Coast Traders Ltd to acquire and ship the goods the subject of the July Agreement as appears on the Bill of Lading in which it is named as the consignor, it was Mr Coulton personally who was a party to and signed the July Agreement: J [61]. 41 Her Honour also found that the Melchers invoice was "the vehicle through which [Mr Coulton] acquired the goods from Melchers", but the party to whom it was addressed, West Coast Traders Ltd, "was not a party to the agreement of 24 July 2015": at J [34]. 42 The primary judge ultimately concluded that there was a debt due to Mr Knobloch based on the July Agreement sufficient to ground the creditor's petition: J [68]. The primary judge was not satisfied that other sufficient cause within s 52(2)(b) of the Act had been established as a basis for exercising the Court's discretion such that the Sequestration Order should be set aside: J [76]. 43 The Application was dismissed and the Sequestration Order was affirmed.

Grounds Of Appeal 44 Mr Coulton sought to articulate his grounds of appeal in the Amended Notice of Appeal in the following terms (reproduced exactly): There where a number of factorial errors in the Judgement of Judge Barnes delivered on the 4/9/20 "Reasons for Judgement" but the two main factorial errors are: Firstly: The invoice (court book page no 2114) between Eastern Building and Maintenance and West Coast Traders clearly states that West Coast Traders sold the goods to Eastern Building and Maintenance and was used to import the goods into Australia . Copies of the bill of lading ( court book no 2127 ) and the more importantly the invoice /Bill of sale ( court book page no 2114) Mr Knobloch used for Australian customs clearance on the 19th November 2015 (court book page no: 2129 and 2130) clearly states that West Coasts Traders invoice was used by Australian Customs not a invoice from Melchers . ( these documents where supplied by Mr Knobloch when he was subpoenaed to produce these documents) and is one of the factorial errors by Judge Barnes as on para 62 page 18 of the Judgement dated 4/9/20 Judge Barnes states that a invoice from Melchers was used by Knobloch to clear customs when in fact it was the invoice from West Coast Traders and that invoice clearly shows West Coast Traders sold the container to Eastern Building not Melchers . If Mr Knobloch had actually produced these documents ( the invoice and the bill of ladings court book page no:2114, 2127) and not not misled the local court in his affidavit in 2016 it would have been clear to that local court that they was no legal recourse against me personally and he would never have obtained a default judgement against me and the only legal recourse was against West Coast Traders a company registered in Zanzibar court book pages 2115 and 2116 operating out of the UK (see invoice address) . Secondly : I was instructed by the federal court on the 27/7/17 to go back to the local court where the default judgement was made to have the default judgement set aside which I did. I sent copies of the notice of motion to have the default judgement set aside to the local court sent to Mr Hufton and the Federal Court on the 8/9/17. I called the local court on the 28/9/17 and was informed that the local court had ordered a stay of enforcement on the matter on the 27/9/17 and I will receive a letter confirming this court book no: 2046 and the date it would be listed for hearing . I wrote to the Mr Hufton and the Federal court on the 27/9/17 (some nine days before the federal courts hearing date on the 5/10/17 informing that the local court had granted a stay of enforcement of the debt. Mr Hufton claims he had not received the letter from me dated the 28/9/17 informing him that the court had stayed the enforcement to of the debt but he seemed to have received the letter sent by me on the 8/9/17 informing him that I have asked for a notice of motion to set aside the default judgement in the local court. The local court had stayed the enforcement proceedings on the 27 th September 2017 a good nine days before register Ng made a sequestration order against me on the 5/10/17 . In the copies of the notice of motion to the the local court I asked the Federal court for a telephone /video link so I could appear on the 5/10/17 which I was not given. I say the factorial error by Judge Barnes was the sequestration order made by Register Ng should have been squashed and the matter returned to the local court to be heard as the Federal courts "creditors petition: and the "federal bankruptcy notice" was void as the default judgement by the Local court used to obtain these was stayed by the local court where the judgement default debt was made. This matter would have gone back to the local court where I would have produced evidence to have the default judgement set aside and squashed . 45 As explained above, with the assistance of the clarifications provided by Mr Coulton in his written and oral submissions in the appeal it became apparent that, in substance, Mr Coulton was advancing the following grounds of appeal: (a) the primary judge erred in finding that the invoice used by Mr Knobloch in relation to the shipment into Australia of the alcoholic energy drinks was the Melchers invoice; (b) the primary judge erred in finding that the relevant contract between Mr Coulton and Mr Knobloch was the July Agreement; and (c) the primary judge erred in failing to find that Mr Coulton had not been afforded procedural fairness before the Default Judgment was entered against him.

Submissions 46 Mr Coulton advanced two principal submissions in support of his grounds of appeal. 47 First, he was not afforded natural justice or procedural fairness before the Default Judgment was entered against him in the Local Court because Mr Knobloch "obtained judgement on a false basis namely that the contract in question was evidenced by a importation and distribution rights (not agreement) dated 24/7/2015", when in fact the relevant invoice was the West Coast Traders (Z) invoice, and he was not given any opportunity to challenge Mr Knobloch's claim because he was incarcerated at the time the Default Judgment was entered. 48 Second, the alcoholic energy drinks were shipped to Australia pursuant to the April contract which was a sales agreement between West Coast Traders (Z) Ltd, as the seller, and Eastern Building and Maintenance, as the buyer, as evidenced by the West Coast Traders (Z) invoice which was used by Mr Knobloch to import the alcoholic energy drinks into Australia, not the Melchers invoice as found by the primary judge. 49 Mr Knobloch's principal submissions did not materially extend beyond contentions that the primary judge did not err in her findings. Mr Knobloch also submitted that Mr Coulton's submissions were incompetent and without merit, contravened r 36.55 of the Federal Court Rules 2011 (Cth) and Practice Note APP 2: Content of Appeal Books and Preparation for Hearing, and failed to clearly articulate why the primary judge's findings were erroneous. While objectively there is some force in those submissions, the reality is that Mr Coulton is a self-represented litigant and I am satisfied that the appeal grounds he is seeking to advance are sufficiently identified in his Amended Notice of Appeal and in his written and oral submissions to make them intelligible to Mr Knobloch and amenable to determination by the Court.

Legal Principles 50 This appeal is brought under s 24 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). Section 24(1)(d) of the FCA Act confers upon the Federal Court jurisdiction to hear and determine judgments on appeal from the Federal Circuit Court of Australia (now the Federal Circuit and Family Court of Australia, Division 2). 51 The appeal is an appeal by way of rehearing: Re Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 at [75] (Gleeson CJ and Gummow J). In order to invoke the powers of this Court, Mr Coulton must demonstrate some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] (Gaudron, McHugh, Gummow and Hayne JJ). 52 The principles guiding the appellate review of factual findings made by a trial judge are well established: see Jadwan Pty Ltd v Rae & Partners (a firm) and Others (2020) 278 FCR 1; [2020] FCAFC 62 (Jadwan) at [404] (Browmich, O'Callaghan and Wheelahan JJ); McLaughlin v Daily Telegraph Newspaper Company Ltd (No 2) (1904) 1 CLR 243 at 277 (Griffith CJ); Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 (Lee) at [55] (Bell, Gageler, Nettle and Edelman JJ, Kiefel CJ at [1] agreeing). 53 The following principles are relevant to the determination of this appeal: (a) if an error is shown, a court of appeal may then be required to make its own findings of fact and to formulate its own reasoning based on those findings if it is in a position to do so: Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22 (Robinson) at [43] (French CJ, Bell, Keane, Nettle and Gordon JJ); see also Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816; [2005] HCA 57 at [134]-[135] (Hayne J); (b) a court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law; (c) appellate courts must exercise restraint with respect to interference with a trial judge's findings if they are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence unless they are "glaringly improbable" or "contrary to compelling inferences": Lee at [55]-[56]; see also Robinson at [43]; (d) thereafter, an appellate court is in as good a position as a primary judge to determine the proper inferences to be drawn from undisputed facts or facts that had been disputed but had subsequently been established by findings of the primary judge: Lee at [55]. It should give respect and weight to the conclusion of the primary judge but, after reaching its own conclusion, should not shrink from giving effect to it: Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 (Fox v Percy) at [25] (Gleeson CJ, Gummow and Kirby JJ) citing Warren v Coombes (1979) 142 CLR 531 at 551; Jadwan at [413]; (e) the authorities cite circumstances where the primary judge will enjoy a unique benefit not available to an appellate court: Jadwan at [405], [414]. Such advantages may include: (i) those deriving from the "obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole": Fox v Percy at [23] (Gleeson CJ, Gummow and Kirby JJ); and (ii) the fact that findings of secondary facts may be based on a combination of impressions and other inferences from primary facts: Lee at [55], citing Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at [144] and Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [42]; and (f) an appellate court may face disadvantages when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share: Fox v Percy at [23] (Gleeson CJ, Gummow and Kirby JJ); (g) conversely, an appellate court's capacity for "synthesis and perspective" may place it in an advantageous position: Jadwan at [405] citing Yarrabee Coal Co Pty Ltd and Another v Lujans (2009) 53 MVR 187; [2009] NSWCA 85 at [3] (Allsop P); and (h) the weight to be accorded to the findings of the primary judge will vary according to the type of issue in question, and the nature and extent of the advantage enjoyed by the trial judge: Jadwan at [414]. It will be more difficult to establish that the primary judge was in error in circumstances where the primary judge enjoys a greater advantage.

Consideration 54 It is convenient to address first the procedural fairness ground of appeal advanced by Mr Coulton.

Was the appellant afforded procedural fairness? 55 The procedural fairness ground of appeal is misconceived. 56 As noted above, the hearing before the primary judge was a hearing de novo. Mr Knobloch was required to re-prove to the satisfaction of the Court the matters required under s 52(1) of the Bankruptcy Act. These matters included that the debt on which Mr Knobloch relied, as the petitioning creditor, was still owing. Mr Coulton was given an opportunity, which he took up, to both file fresh evidence and cross examine Mr Knobloch, as well as to make extensive submissions in support of his contentions. Mr Coulton was thereby given every opportunity to dispute the existence of the debt that had given rise to the Default Judgment. Any alleged lack of procedural fairness in connection with the entry of the Default Judgment against him by the Local Court was thereby addressed and ameliorated by the hearing de novo before the primary judge. 57 This ground of appeal has not been established.

Did the primary judge err in finding that the relevant contract grounding the debt was the July Agreement? 58 I turn next to consider the ground of appeal that the primary judge erred by finding (at J [57]) that the relevant contract grounding the debt owed to Mr Knobloch was the July Agreement and not the April contract. 59 Mr Knobloch's proceeding before the Local Court was exclusively based on a contravention by Mr Coulton of the July Agreement. 60 Mr Coulton did not challenge the existence of the July Agreement, his entry into it or any of its terms. Rather, Mr Coulton contended that the April contract was the relevant agreement under which the alcoholic energy drinks were imported into Australia, as reflected in the West Coast Traders (Z) invoice. 61 The critical finding by the primary judge was the finding (at J [58]) that the July Agreement "dealt with the entirety of the arrangement between the parties that is said to give rise to the debt claimed to be due to Mr Knobloch from Mr Coulton". 62 I consider that finding was readily available to the primary judge and plainly correct given the following matters to which her Honour had regard in making that finding. 63 First, Mr Coulton's objection to the July Agreement on the basis that the April contract governed the terms on which the alcoholic energy drinks were imported into Australia was new, the basis upon which he opposed Mr Knobloch's claim having "changed significantly over time". In particular, the document purporting to be a draft of the April contract was not produced until October 2019, late in the proceedings: J [49]-[50]. 64 Second, there was no evidence of any payment of $35,000 by Mr Knobloch to West Coast Traders (Z) Ltd, as provided for in the purported April contract. To the contrary, copies of electronic bank transfers evidenced that Mr Knobloch had paid $34,000 into Mr Coulton's Australian bank account in early August 2015, which was consistent with the July Agreement: J [45], [61]. 65 Third, the alcoholic energy drinks were not in fact sold to Eastern Building and Maintenance (or Mr Knobloch) by West Coast Traders (Z) Ltd or by Mr Coulton. Rather, the alcoholic energy drinks were acquired on behalf of the joint venture as set out in the July Agreement: J [67]. 66 Fourth, the primary judge declined to make a direct finding as to the authenticity of the April contract but noted, having heard from Mr Coulton, the "strength" of the submissions made by counsel for Mr Knobloch that the documents attached to Mr Coulton's affidavit of 20 October 2019 (including the 6 April contract) were fraudulent, drawing attention to "the late raising of the claim, physical features of the documents and inconsistencies with other evidence": J [57]. 67 It is important, here, to bear in mind the advantages enjoyed by the primary judge. Her Honour had the benefit of considering the material presented by counsel for Mr Knobloch in its entirety and to draw conclusions from it viewed as a whole. The primary judge was also able to make an assessment as to both parties' credibility in their evidence as to the alleged existence of the April contract and surrounding evidence. These advantages are of particular significance in the primary judge's approach to the purported existence of the April contract and thereby what weight her Honour was able to place on it. 68 I would add to the matters considered by the primary judge, that on the assumption that the parties had in fact entered into a contract in the form of the April contract, it would appear to have been repudiated by the subsequent entry into the July Agreement. The July Agreement provided, after setting out the respective importation and distribution rights of the parties and their respective contributions to fund the acquisition of the first "trial" container of the alcoholic energy drinks, that: Upon completion of all parties investment the container will be purchased and imported (all duties, taxes and costs inclusive). 69 I am satisfied that Mr Knobloch has not demonstrated any legal, factual or discretionary error in the primary judge's finding that the July Agreement dealt with the entirety of the arrangement between the parties that is said to give rise to the debt claimed to be due to Mr Knobloch by Mr Coulton, nor in her Honour's rejection of the contention that the alcoholic energy drinks were imported into Australia under the purported April contract. 70 This ground of appeal has not been established.

Did the primary judge err in finding that Mr Knobloch relied upon the Melchers invoice? 71 In his Amended Notice of Appeal, Mr Coulton contended that the primary judge made a factual error by making the following finding at J [62]: I accept that this purported Melchers invoice was provided to and used by Mr Knobloch in relation to Customs broking in Australia for the shipment in question. 72 Mr Coulton submits that the invoice that Mr Knobloch in fact relied upon for customs clearance was the West Coast Traders (Z) invoice. 73 The import declaration for the alcoholic energy drinks in evidence records a lodgement date of 19 November 2015, identifies Mr Knobloch as the importer and the broker reference is stated to be S00025985. At the top right of the West Coast Traders (Z) invoice is a handwritten notation "S25985". The handwritten notation "S25985" also appears in the centre right of the Bill of Lading between West Coast Traders Ltd (not West Coast Traders (Z) Ltd), as shipper, and Eastern Building and Maintenance, as consignee, issued in Rotterdam on 15 September 2015. There was no evidence as to the author of these handwritten annotations or the specific circumstances in which they were made on the documents. 74 This evidence, if accepted, would appear to suggest that while the invoice purportedly issued to West Coast Traders Ltd by Melchers on 15 July 2015 may have been emailed to the shipper on 30 September 2015, the invoice that was in fact used in relation to customs broking in Australia for the importation of the alcoholic energy drinks was the West Coast Traders (Z) invoice. 75 The issue of which invoice was in fact used for customs broking purposes, however, is not significant. It was not a material step in the primary judge's reasoning process. Contrary to Mr Coulton's submissions, whether or not the invoice used for customs clearance was the West Coast Traders (Z) invoice cannot change the nature of the obligations that the primary judge found that Mr Coulton owed to Mr Knobloch under the July Agreement, and which were the obligations that were relied upon to ground the Default Judgment. 76 Mr Coulton has not demonstrated any appellable error in the primary judge's reliance on the July Agreement as the relevant document grounding the debt. A corollary of this finding is that whether or not Mr Knobloch relied upon the West Coast Traders (Z) invoice did not ultimately impact the primary judge's reasoning in concluding that Mr Coulton was personally liable to Mr Knobloch. 77 I am satisfied that the West Coast Traders (Z) invoice was part of the mechanism by which Mr Coulton arranged for the container of alcoholic energy drinks to be imported into Australia. It was the July Agreement, however, and not the April contract nor the West Coast Traders (Z) invoice, which established Mr Coulton's relevant indebtedness to Mr Knobloch. 78 As highlighted by the primary judge at J [61]: Mr Coulton chose to acquire and ship the goods the subject of the agreement of 24 July 2015 by using the name West Coast Traders Ltd as appears on the Bill of Lading dated 15 September 2015 (not, I note, West Coast Traders (z) Ltd which he now says sold such goods to Eastern Building and Maintenance on 6 April 2015). Eastern Building and Maintenance was described as consignee or buyer in documents which apparently emanated from Mr Coulton. This does not displace Mr Coulton's obligations under the agreement of 24 July 2015 to be responsible for purchasing and importation costs on behalf of the venturers of a container of cans of Xplosiv energy drinks to the total cost of $102,000 for sale and consumption in Australia. He failed to perform his obligations, thus breaching the contract. [Emphasis added.] 79 This ground of appeal has not been established.

Disposition 80 It follows that the appeal should be dismissed. As Mr Knobloch is a self-represented litigant, there should be no order as to costs. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Halley.