County Securities Pty Ltd v Challenger Group Holdings Pty Ltd

The affidavit evidence and assessment of the witnesses

1. There are significant difficulties in the evidence led in these proceedings. These include that the parties plainly did not lead all relevant documentary evidence or refer to it in submissions, there are credit issues as to each of Mr Kovacic and Mr Nicholas Kalantzis, and Mr Constantine Kalantzis' evidence is of little assistance since he, in substance, simply adopted Mr Nicholas Kalantzis' evidence. The Defendants did not call their accountant, Mr Tappouras, who appears to have had a close involvement in the relevant events, nor did they call Ms Andrea Kalantzis, who was purportedly appointed as a director of Centura and is also, at least nominally, the owner of one of the companies that claims to be entitled to be transferred shares in Centura. The absence of those witnesses was unexplained and I infer that their evidence would not have assisted the Defendants. I will now turn to the scope of the affidavit evidence before indicating the views that I have formed as to the credit of the witnesses.
2. Mr Kovacic relies on an affidavit dated 30 October 2015 which sets out the history of his relationship with the Messrs Kalantzis, including an involvement with a building company owned by the Messrs Kalantzis, NCK Constructions Pty Ltd (which it appears subsequently changed its name to Wallabie Constructions (Aust) Pty Ltd ("WCA")) and which was constructing a property at Beecroft for a third party property developer, and a second company Wallabie Constructions Pty Ltd which was owned by Mr Kovacic. In that affidavit, Mr Kovacic also set out his account of the development of the proposal for the Eat Street cafe to be opened at the Gosford waterfront and of a discussion with the Messrs Kalantzis of that proposal and his need to draw some money from WCA to fund it and of their interest in a shareholding in it toward the end of 2013 (Kovacic 30.10.15 [22]-[23]), to which I will refer further below.
3. Mr Kovacic's evidence in his first affidavit (Kovacic 30.10.15 [25]) was that he had funded outlays of $450,000 in respect of the development of the business from bank funding and mortgage security over personal real estate holdings. That evidence was undermined by Mr Kovacic's cross-examination, where he accepted that he did not personally have real estate holdings, although he then claimed that his wife owned property; he owned property with her; he and his wife sold properties and used the money for the development of the cafe; and they had properties in company names of which he was sole director and sole shareholder (T57). Mr Fernon, who appears for Mr Kovacic, responds to the criticisms as to Mr Kovacic's lack of any personal interest in real estate that could have supported such funding by submitting that Mr Kovacic held real estate interests in related companies, that it was not surprising that a layperson had failed to distinguish the interests he held personally and the interests he held in a company under his control. However, no specific evidence was led by Mr Kovacic of any borrowing against or sale of any particular property or the disposition of its proceeds to fund the development of the cafe.
4. Mr Kovacic also referred in his first affidavit, without any challenge to their authenticity, to notifications to ASIC on 25 February 2014 of the transfer of shares in Centura to Buildcon and Brokers (Ex P4, 307-310), to which I will refer further below, which he described as reflecting the step by which he had made the Messrs Kalantzis equal shareholders in Centura, with those shares being held in companies controlled by their respective daughters (Kovacic 30.10.15 [29], [31]). He also referred to the circumstances in which a dispute arose in relation to the making of contributions by the Messrs Kalantzis to the development of the cafe and to a further dispute that arose after the opening of the cafe in late October 2015.
5. In a further affidavit dated 2 November 2015, Mr Kovacic reversed the evidence which he had given in his affidavit dated 30 October 2015 as to the transfer of shares to the Messrs Kovacic, as follows (at [15]): "I refer to paragraph of 29 my earlier affidavit. I incorrectly stated that I had made Con and Nick equal shareholders with me pursuant to paragraph 21 of that affidavit. This is a mistake. Firstly, the affidavit is referred to in paragraph 22 of my earlier affidavit. Secondly, that agreement was that Con and Nick would only become shareholders when they had made their equal contribution to [Centura]. I obviously misread paragraph 29 of my earlier affidavit when I swore it, and I apologise for that error. Companies associated with Con and Nick are recorded on the ASIC register of [Centura] as shareholders, pursuant to an electronic lodgement by [their] accountant". I am not persuaded by Mr Kovacic's evidence as to this matter, or that he made a "mistake" as to so fundamental an issue in swearing his affidavit relied on in support of his initial ex parte application for interlocutory relief, or in failing to contest notification of the transfers of shares to Buildcon and Brokers in February 2014 which were referred to in that affidavit.
6. Mr Kovacic also relied on a further affidavit dated 9 November 2015, which took issue with several documents relating to the transfer of shares in Centura to Buildcon and Brokers and the appointment of Mr Nicolas Kalantzis and Ms Kalantzis as directors of Centura. It will generally not be necessary to address those matters in detail, where the validity of those appointments is not pressed by the Defendants, they are largely relevant to credit and the matter can be determined on other grounds. Mr Kovacic also responded to evidence led by Mr Kalantzis in his affidavit dated 5 November 2015, including referring to conversations relating to the Messrs Kalantzis becoming shareholders of Centura, including a suggestion by Mr Nicholas Kalantzis or Mr Constantine Kalantzis that they would borrow against the business to acquire their shares, which was rejected by Mr Kovacic.
7. Mr Kovacic also relied on a further affidavit dated 18 December 2015, which addressed a collateral dispute relating to the circumstances in which the Messrs Kalantzis and he commenced residential building work and as to the involvement of WCA in that work. It is not necessary or appropriate that I address that dispute, which it appears may be the subject of other claims between the parties, in this judgment. By that affidavit, Mr Kovacic also denies that he sought the assistance of Mr Nicolas Kalantzis or any other person in preparing a response to the request for expressions of interest issued by the Gosford City Council (Kovacic 18.12.15 [29]). That evidence was at best overstated, since Mr Kovacic had at least been assisted by a third party consultant in preparing that application, although he then denied the value of that work, and later by his accountant.
8. Mr Kovacic also takes issue with other aspects of Mr Nicolas Kalantzis' affidavit evidence and refers to a meeting with the Commonwealth Bank in October 2014, at which Mr Nicholas Kalantzis raised the possibility of borrowing on the Crown lease for the cafe, and Mr Kovacic claims that he advised that he was not interested in borrowing on the food business. Neither party sought to lead evidence from the representative of the Commonwealth Bank present at that meeting, who could have cast light on what had occurred at it. Mr Kovacic also refers to an email sent to the Messrs Kalantzis after the dispute had arisen in late October 2015 and contends that he sent that email at their request, and refers to a further conversation in which he contends that he rejected a borrowing against the cafe, on the basis that he had paid for "everything" in respect of the cafe.
9. Mr Kovacic, in cross-examination, had limited recollection of several matters, including, for example, the date of his first contact with Gosford Council relating to the cafe and when he first approached Mr Constantine Kalantzis or Mr Nicolas Kalantzis in respect of the cafe (T21). Mr Allen, who appears for the Defendants, criticises aspects of Mr Kovacic's evidence and there is substantial force in that criticism. I have referred above to issues as to Mr Kovacic's evidence as to the amount to which he had funded the development of the cafe and the manner in which he had done so. Mr Kovacic's affidavit evidence that he "completed all of the works concerning Eat Street" (Kovacic 30.10.15 [26]) also appears to be overstated, so far as at least WCA and subcontractors were involved in the relevant work. I do not accept Mr Kovacic's later evidence seeking to qualify the account given in his first affidavit of 30 October 2015, as I will note below. It also seems to me that Mr Kovacic understated, both in his affidavit evidence in chief and in cross-examination, the extent of the work undertaken by the Messrs Kalantzis and the extent of their involvement in the project, and that matter is adverse to his credit. However, an adverse finding of credit in respect of Mr Kovacic is not sufficient for the Defendants to succeed, unless they establish the existence of the agreement for which they contend, and that the Court should properly order specific performance of that agreement in the relevant circumstances.
10. The Defendants read Mr Nicholas Kalantzis' affidavit dated 14 December 2015, which also referred to earlier events concerning Wallabie Constructions and WCA. Mr Nicholas Kalantzis gave evidence that he noted an error in the ASIC records of Centura in February 2015; that Mr Kovacic agreed to have the accountant fix it up and confirmed "we all have 1/3rd each"; and that Mr Kalantzis followed up with Mr Kovacic to check as to whether Mr Kovacic had "fixed up the share issue". That evidence was contradicted by Mr Nicholas Kalantzis in his cross-examination, which made clear that he not Mr Kovacic was taking steps to seek to correct the suggested error (T143). Mr Nicholas Kalantzis also refers to work undertaken to set up the cafe on site, between December 2014 and April 2015, although a problem with the power supply was not corrected until July 2015, and another four months were spent on ancillary works. Mr Nicholas Kalantzis refers to various text messages concerning the construction works, which indicate his and Mr Constantine Kalantzis' involvement in the process. Mr Nicholas Kalantzis also referred, in paragraph 63 of that affidavit, to a conversation with Mr Kovacic in July 2015 where he suggested getting a loan "so that everything is equalled out and we all pay our fair share". He accepted, in cross-examination, that that conversation recognised that he understood the basis of the parties' arrangement was that "there needed to be an equal contribution by the shareholders", but contended that he and Mr Constantine Kalantzis made that contribution through WCA and the purchase of a portable kitchen for the cafe (T169-170). As I will note below, the evidence did not establish the quantum of such contributions by the Defendants, generally, or the fact of a contribution by the purchase of that kitchen in particular. The Defendants also relied on a further affidavit of Mr Nicholas Kalantzis dated 21 December 2015 which annexed correspondence relating to several matters referred to in his earlier affidavits, and a further affidavit dated 23 December 2015 relating to information provided by his accountant as to the share capital of Centura.
11. Mr Kalantzis' evidence as to the initial conversation on which he relied as the agreement to transfer shares in Centura to him or a company associated with him was mistaken as to the sequence of events, and his evidence in cross-examination as to the date of that conversation (to which I refer in paragraph 22 below) was confused and contradictory. It seems to me that his evidence as to this matter was, at best, that of a witness who had a poor memory of events, and I do not need to go further given the conclusions that I have reached on other grounds.
12. Mr Fernon also refers to other matters which, he contends, are such that neither of the Messrs Kalantzis should be accepted as witnesses of credit. Mr Fernon submits that Mr Nicholas Kalantzis created, or was involved in the creation of or signed forged documents in relation to the transfer of shareholdings to Buildcon and Brokers, referring particularly to transfer of share documents and share transfers (Ex P4, 457-460). Mr Allen drew attention to authority that, not surprisingly, the onus on a party alleging a forgery, relevantly Mr Kovacic, is to show that the signature was a forgery: In the application of Roderick McKay Sutherland and Suel Arnautovic [2014] NSWSC 821 at [65]. Mr Fernon submits that Mr Kovacic has discharged that onus by his evidence that the signature contained in the relevant minutes is not his. I do not consider that it is necessary to reach findings as to this issue to determine these proceedings, or that I can or should do so where there are issues as to the credit of both parties and neither party led expert handwriting evidence.
13. Mr Fernon also submits that Mr Nicholas Kalantzis sought to conceal his and Mr Constantine Kalantzis' potential ownership of shares in Centura in order to avoid those shares becoming available to their respective trustee(s) in bankruptcy. Mr Nicholas Kalantzis sought to explain the reason that his daughter's company would hold the shares in Centura that were proposed to be transferred to him as being that there was a conversation about her being involved in the cafe, as a manager or barrista, and that she would have an interest in it rather than by reference to his then status as a bankrupt (T118). One difficulty with that approach is that Ms Andrea Kalantzis did not give evidence to support that explanation, and a second is Mr Constantine Kalantzis' daughter's company was to hold shares in the same manner, and there is no suggestion that she was to work in the cafe.
14. I do not accept Mr Nicholas Kalantzis' evidence as to this matter, and it seems to me likely that the fact that shares were to be held by companies associated with the daughters of the Messrs Kalantzis so that they would not come under the control of their trustee(s) in bankruptcy. Although I am conscious that that finding has a serious character, I am satisfied that that is the only inference that is reasonably available from the manner in which the shares would be held by companies associated with the Messrs Kalantzis' daughters, while all parties appeared to treat them as under the Messrs Kalantzis' control. It follows that Mr Nicholas Kalantzis' denial of that proposition in cross-examination was false and that matter substantially undermines his credit, without reaching any wider credit finding in respect of the underlying conduct.
15. The Defendants initially also relied on an affidavit of Mr Constantine Kalantzis dated 16 December 2015 which referred to a meeting at the McDonald's restaurant in Gosford with Mr Nicholas Kalantzis and Mr Kovacic and adopted Mr Nicholas Kalantzis' account of that conversation in paragraphs 30-31 of his affidavit dated 14 December 2015. Those paragraphs of Mr Constantine Kalantzis' affidavit were not admissible and were not admitted into evidence. By a further affidavit dated 23 December 2015, Mr Constantine Kalantzis gave evidence of the relevant conversation, in direct speech, which had plainly been copied from Mr Nicholas Kalantzis' affidavit with immaterial cosmetic changes. Mr Constantine Kalantzis accepted in cross-examination, as was apparent from the face of that affidavit, that all that he did in further affidavit was read and copy paragraph 31 of Mr Nicholas Kalantzis' affidavit (T82-83). While he claimed that he remembered what was said at that that meeting, he accepted he had not sought to recall or write down in his own words his recollection of that meeting (T83). Mr Constantine Kalantzis also accepted, in cross-examination, that he understood, presumably from that meeting, that by becoming a shareholder he would be responsible for putting his fair share of the capital (T84) although he then suggested that that "fair share" was that he erect the building (T85). That proposition has the difficulty that the costs of development of the cafe plainly included costs of acquisition of the portable building, prior to its erection, and substantial other costs well beyond any cost involved in erecting the portable building. I give little weight to Mr Constantine Kalantzis' evidence in this respect.
16. In the result, I have little confidence in the evidence of Mr Nicholas Kalantzis and I also have real doubt as to aspects of the evidence of Mr Kovacic, and I would not accept their uncorroborated evidence. Mr Constantine Kalantzis in turn adopted Mr Nicholas Kalantzis' evidence. That matter is of considerable significance, since the competing accounts of the oral conversations that are said to give rise to the agreement to transfer the shares to interests associated with the Messrs Kalantzis are largely uncorroborated. I will have regard to the objective probabilities, and contemporaneous documents to the extent they cast a limited light on what occurred, and will otherwise have regard to the fact that the onus rests upon the Defendants/Cross-Claimants to establish, at least in an evidentiary sense, the matters which they allege in their Cross-Claim.

Factual background

1. There is some common ground between the parties, by reason of matters pleaded in Mr Kovacic's Points of Claim and admitted by the relevant Defendants, although there are significant disputes as to the terms of key conversations and later events.
2. Centura was incorporated on 20 April 2012, Mr Kovacic was appointed as its sole director, and its issued share capital was then 100 A class shares held by Mr Kovacic. Mr Nicholas Kalantzis was made bankrupt on 21 June 2012 and was discharged from bankruptcy on 22 June 2015 (Ex P4, 6-7). Mr Constantine Kalantzis was made bankrupt on 3 November 2011 and was discharged from bankruptcy on 9 December 2014 (Ex P4, 7).
3. Mr Kovacic claims that, in about 2013, he decided to seek to establish a cafe, which was subsequently to become known as the "Eat Street Cafe", on Crown reserve land on the Gosford waterfront (Kovacic 30.10.15 [20]-[21]). That proposition is denied by the relevant Defendants who contend that they were also involved in developing that concept. Mr Nicholas Kalantzis' evidence is that the idea of the cafe originated from a conversation in June 2013 at Harry's Cafe de Wheels in Sydney (Kalantzis 14.12.15 [14]) and that he lobbied Gosford Council in respect of the proposal, prior to the Council issuing a request for expressions of interest for that opportunity. These matters were denied by Mr Kovacic in his affidavit evidence and in cross-examination (T36).
4. The Defendants rely on a conversation said to have taken place in July 2013, after a development application for the cafe had been lodged, which Mr Nicholas Kalantzis sets out in paragraph 26 of his affidavit dated 14 December 2015 as follows: N Kalantzis: "The DA has gone in, it is only a matter of time for us to get approval as the Council is very excited by the concept so its time for us to put an agreement together." Kovacic: "I already have a company, Centura Global Holdings, I will change the shareholding, so we have 50/50." N Kalantzis: "The Shares will be held by my daughter's company, Brokers Property Holdings. My daughter Kayla is a barista and I'd like her to work there, but I think we need to employ a manager so that there is no shit fight." Kovacic: "I don't like the idea of family working at the cafe but a manager is a good idea." If that account of the conversation were accepted, it was then contemplated that Mr Kovacic and Mr Nicholas Kalantzis would each hold half of the shares in Centura, to the exclusion of Mr Constantine Kalantzis.
5. Mr Nicholas Kalantzis acknowledged in cross-examination that the reference in paragraph 26 of his affidavit to a conversation in July 2013 after the lodgement of the development application was in error because the development application had been lodged after the issue of the request for expressions of interest by Gosford Council, and not until 2014. His subsequent evidence as to the date of that conversation was inconsistent and confusing. He initially suggested that it occurred in March 2013, then conceded that it may have been not until June 2013 (T111), then suggested the conversation took place in April 2013, and then in April or May 2013, before again changing the date of the conversation to June 2013, and then retreating to the proposition that he was not sure of the date of the conversation (T111). Mr Kalantzis then further amended that position to correct the date of July 2013 to April 2013 (T112) and then referred, in cross-examination, to the existence of earlier meetings discussing the concept of a cafe at the Gosford waterfront, prior to the meeting, to which he had not referred to in his affidavit (T113). Mr Kalantzis then again altered his evidence as to the date of the conversation, to July, June and then early June 2013 (T114). It seems to me that, at best, Mr Kalantzis had little genuine recollection of when that conversation took place.
6. Having said that, contemporaneous correspondence provides support for the fact that Mr Kalantzis was involved in investigations of the possibility of a cafe at the Gosford waterfront in July 2013, which is broadly consistent with the time he originally attributed to the conversation with Mr Kovacic. A third party adviser informed Mr Kalantzis, by email dated 9 July 2013, that Gosford Council had advised that they were required to seek expressions of interest for commercial activities on public land and that they had been considering a formal process to allow food vendor activities on the Gosford waterfront and that (Kalantzis 21.12.15, annexure A): "In the light of your proposal, the Council has prepared an EOI which they will be placing on exhibition in the next two weeks which will enable them to formally consider your mobile cafe proposal and any other submissions hat [sic] may come forward as part of the process."
7. Mr Kalantzis' evidence of discussions concerning the cafe proposal in mid-2013 is also consistent with his approach to the supplier of a portable kitchen in early July 2013, in which that supplier indicated the need for a deposit within five working days to place a mobile kitchen on hold (Kalantzis 21.12.15, annexure "B"). I note, for completeness, that Mr Fernon reserved Mr Kovacic's position as to the authenticity of the quotation provided by that kitchen supplier to WCA, which had been annexed to an affidavit of Mr Nicholas Kalantzis that was served late and with little notice to Mr Kovacic; however, there seems to me to be little reason to doubt the authenticity of the document, which is in any event not material to the outcome of the proceedings.
8. The Defendants initially contended that WCA had contracted to buy that portable kitchen in July 2013, and that kitchen was used in the premises. The letter on which the Messrs Kalantzis relied as WCA's agreement to acquire that kitchen may have been no more than a "quotation and payment terms", as it was described in the supplier's covering email Kalantzis 21.12.15, annexure B). There is no evidence that WCA or the Messrs Kalantzis made any payment for the portable kitchen, and its supplier later sold that kitchen to Centura, represented by Mr Kovacic, which paid the purchase price by instalments. Mr Nicholas Kalantzis accepted in cross-examination that the payments contemplated by the agreement between WCA and the supplier of the portable kitchen were not made (T165). Mr Allen also accepted in submissions that, on the evidence, he could not submit that WCA paid the entire purchase price, or any of the purchase price, for the portable kitchen and that he would not be putting that Mr Kovacic had not in fact made those payments (T97). Mr Allen submitted, however, that Mr Kovacic paid that purchase price in respect of the earlier contract between WCA and the supplier in respect of the purchase of the portable kitchen.
9. Mr Nicholas Kalantzis then refers to a further conversation with Mr Kovacic, set out in paragraph 29 of his affidavit dated 14 December 2015, in which Mr Kalantzis is alleged to have said: Kovacic: "I think it is only fair we include Con as we are doing [another development] together." Mr Nicholas Kalantzis' evidence is that he disagreed that shares should be transferred to his brother, Mr Constantine Kalantzis, that the conversation continued, and Mr Nicholas Kalantzis then accepted that Mr Constantine Kalantzis would obtain an interest, so each party would have a third of the shares each.
10. Mr Nicholas Kalantzis also refers to a further conversation with Mr Kovacic at a McDonald's restaurant in Gosford, in January 2014 (N. Kalantzis 14.12.15 [30]), which he sets out in words to the following effect (Kalantzis 14.12.15 [31]): Kovacic: "I think Con ought to be part of the cafe. I will have the accountant fix up the shareholding so he has 33%." N Kalantzis: "Okay, Con you happy with that?" C Kalantzis: "Yes". N Kalantzis: "Who do you want to hold your shares?" C Kalantzis: "What are you doing? What do you mean?" N Kalantzis: "My daughter's company is holding the shares." C Kalantzis: "I'll do the same. Put my shares in my daughter's company, Buildcon Constructions." That conversation is denied by Mr Kovacic.
11. By contrast, Mr Kovacic's evidence is that a conversation took place toward the end of 2013, in which he claims to have told the Messrs Kalantzis that he may have to draw some money from WCA to fund the acquisition of a building or planning works for the proposed cafe; they requested a share of the business; and he responded that (Kovacic 30.10.15 [22]): "You can have a share if you pay for it. [WCA] is my company too. And if I need to pull money out for a wage then I should be able to. You guys pulled money out to buy and [sic] excavator and heaps of other things without me getting a share, so its only fair that I can receive a wage to. If you want into the Eat Street business then you have to contribute an equal amount to the costs/outlays like I'm doing. It's not cheap. I think it might cost about $500,000 to do properly."
12. Mr Kovacic then refers to Mr Nicholas Kalantzis having reiterated his and Mr Constantine Kalantzis' wish for a share in the Eat Street business and to a further conversation (Kovacic 30.10.15 [22]) as follows: Kovacic: "If you want a share in Eat Street then you have to contribute your share and some of that means refunding what I have already spent. So I'm happy to give you a shareholding, but those shares don't have any value or mean anything until you guys pay in your share of capital." N Kalantzis: "Okay of course that makes sense." That account of the conversation contemplated that there would be a transfer of shares to the Messrs Kalantzis, although Mr Kovacic expressed the view that the shares which were transferred would not have value or "mean anything". I should also add that the parties often referred, in evidence and in submissions, to "capital" contributions, but that concept was not necessarily used in a technical sense to refer to a subscription for further shares in the capital of Centura, as distinct from funding of the development of the cafe generally.
13. As I noted above, in his first affidavit dated 30 October 2015, Mr Kovacic led evidence which was only consistent with his then having transferred shares in Centura to the Messrs Kalantzis, or more precisely their daughters' companies, although that evidence is not inconsistent with his having done so on terms that they would make, or must make, a capital contribution. In paragraph 29 of that affidavit, Mr Kovacic deposed that: "Pursuant to the agreement reached and referred to in paragraph 21 above, on 25 February 2014 and 20 February 2015, I made Con and Nick equal shareholders with me in Centura. Their shares were and remain held in companies that are controlled by their respective daughters owing to their own personal bankruptcies." The reference to paragraph 21 in that paragraph was in error and refers to the conversation toward the end of 2013 to which I referred above. In paragraph 32 of that affidavit, Mr Kovacic says that: "Whilst Con and Nick or their respective entities have been issued a 1/3 shareholding in Centura it was always on the basis that they were required to contribute their 1/3 of capital towards the outlays of Eat Street, which to date they have not made."
14. Mr Allen put to Mr Kovacic that, when he gave his evidence in paragraph 29 of his affidavit, he had before him the notification to ASIC of the transfer of the relevant shares (Ex P4, p 307) which is also contained in the exhibit to his affidavit; Mr Kovacic replied that no one gave him any exhibits, and that paragraph was a mistake which he had rectified later (T40). In re-examination, Mr Kovacic sought to explain his answer given in cross-examination, with effect that he did not see the exhibit when he was cross-examined but it was present when he swore his affidavit (T105). That explanation did not appear to be wholly consistent with what he had said in cross-examination but it is not necessary for me to express a concluded view as to that matter.
15. It appears the period for the expressions of interest in respect of the waterfront site for the cafe opened on 10 December 2013 and closed on 14 January 2014 (Ex P10, p 82). There is a dispute between the parties as to whether Mr Kovacic prepared and submitted the expression of interest for the cafe to the Gosford Council, substantially in his own right, or whether he was assisted by Mr Nicholas Kalantzis in preparing a business plan as well as by a third party consultant. Correspondence in January 2014 suggests that Mr Kalantzis had at least some involvement with the expression of interest, since the third party consultant who was working on that expression of interest communicated with both him and Mr Kovacic in identifying information that would be required for the proposal, and in relation to the time and costs which would be incurred by that consultant (N Kalantzis 21.12.15, annexure "A"). The expression of interest submitted to Council (Ex P4, 300-306) refers to Mr Kovacic's suggested experience in the catering industry and contains no reference to the Messrs Kalantzis having any interest in Centura or the cafe; however, it seems to me that little may turn on that, where it is common ground between the parties that there was an agreement for the transfer of shares in Centura to the Messrs Kalantzis, although there is a dispute as to its terms.
16. That expression of interest also records that: "[Centura] has already acquired the portable facility for the proposed diner location. It is fully approved by the relevant health authorities and is currently undergoing an internal/external fitout at a cost [of] $120,000." The former statement provides some support for an inference which I would have drawn, in any event, that the Messrs Kalantzis' and WCA's approach to the supplier in respect of the portable kitchen was at least connected with the proposal for the cafe and at least a precursor to Centura's acquisition of that portable kitchen. The latter statement provides some evidence as to a component of the then anticipated costs of the project.
17. It is common ground that, on or about 25 February 2014, two notices of change of company details were lodged with ASIC (Ex P4, 307-310) recording the transfer of shares in Centura from Mr Kovacic to each of Buildcon and Brokers. Mr Kalantzis' evidence is that Accounting First Accounting Services Pty Limited, which was associated with his accountant Mr Tappouras, lodged those notices after the meeting at McDonald's in Gosford in January 2014 (N Kalantzis 14.12.15 [33]). Mr Kovacic contends, and the Defendants deny, that those notices were not issued or lodged with ASIC by Mr Kovacic or otherwise with his knowledge or consent. Those notifications were lodged electronically, and were not signed by Mr Kovacic, so their form provides no indication whether Mr Kovacic had specifically authorised their lodgement. Mr Kovacic's evidence, which I broadly accept, is that he had no dealings with Mr Tappouras and it seems to me likely that Mr Nicholas Kalantzis, rather than Mr Kovacic, caused that notification to be given. It does not follow that that notification was without Mr Kovacic's authority, although it is now accepted that it was invalid because no resolution to register the transfer of the shares had been passed.
18. In cross-examination, Mr Nicholas Kalantzis denied being aware of the lodgement of documents in February 2014 with ASIC to allocate shares in Centura to Brokers and Buildcon, notwithstanding that those documents were lodged by his accountant, Mr Tappouras, and his evidence was that he left those matters to Mr Kovacic (T137-138) and subsequently that the date recorded by ASIC for that lodgement was incorrect, and should be 2015 rather than 2014 (T139). Mr Kalantzis it was, at best, mistaken in his evidence as to the circumstances of the lodgement.
19. In early September 2014, Mr Nicholas Kalantzis approached the Commonwealth Bank of Australia for finance for a mobile diner situated on the foreshore at Gosford, although there is no evidence as to whether he provided the information requested by the bank in respect of such a facility (Ex P4, p 311). The licence agreement for occupation of land by Centura dated 18 September 2014 (Ex P4, p 314) identified Mr Kovacic as the licensee's contact person. The business name "Eat Street Cafe" was registered in the name of WCA on 1 October 2014 (Ex P4, 346-348) and the business name continues to be registered in the name of that company (Ex P4, 561).
20. Mr Kalantzis gives evidence of a further conversation with Mr Kovacic in February 2015, when he says he had noticed that ASIC's records did not record each of Mr Kovacic, Mr Constantine Kalantzis and Mr Nicholas Kalantzis each having one-third of the shares in Centura. That understanding appears to have resulted from a misunderstanding of the position, by either Mr Kalantzis or his accountant, Mr Tappouras, since ASIC's records, which reflect the notices lodged by Mr Tappouras, in fact record Centura as having 100 shares held in those proportions. Mr Nicholas Kalantzis' evidence is that, after he raised this matter with Mr Kovacic, Mr Kovacic responded (Kovacic 14.12.14 [44]): "That's not [a] problem. I'll have the accountant fix it up, it's their stuff up, we all have 1/3rd each."
21. Mr Fernon submits, with some substance, that it is unlikely that Mr Nicholas Kalantzis would have responded to a suggestion that Mr Kovacic had issued further shares to himself, so as to dilute any shareholding of Buildcon and Brokers, in the very restrained way which his evidence suggests and without any further inquiry as to how that had occurred (T203). In any event, as Mr Fernon pointed out, Mr Kalantzis' evidence of this conversation, and its treatment of the error made, is inconsistent with the evidence that Mr Kalantzis' accountant rather than Mr Kovacic's accountant was responsible for lodgement of the relevant notifications with ASIC. It seems to me that Mr Nicholas Kalantzis' account of this conversation is highly implausible, where Mr Kalantzis' accountant was responsible for notifications to ASIC and Mr Kovacic had no reason to have understood the nature of any error made by that accountant or to take responsibility for causing the Mr Kalantzis' accountant to correct it.
22. By a further affidavit dated 23 December 2015, Mr Nicholas Kalantzis annexed a document which he says he was given by his accountant, Mr Tappouras, that he says alerted him that Centura had issued share capital of 200 shares. As I noted above, it is common ground that that is not the case. The annexure to that affidavit is incomplete, being one page of a two page document and is dated 18 December 2014, but that date is not necessarily inconsistent with Mr Kalantzis' evidence that this matter came to his attention in January 2015. Mr Kalantzis' evidence is that that page was all he was given by Mr Tappouras. A statement in that page that Centura has 200 shares on issue is inconsistent with ASIC's records, as I have noted above; and, in the absence of evidence explaining the nature of the document, it seems to me likely that it is a record that Mr Tappouras maintained in respect of companies for which he had accounting responsibilities. Its only relevance is to respond to an attack made on Mr Nicholas Kalantzis' credit relating to his evidence as to the issue concerning the 200 shares. I do not draw any adverse conclusion as to Mr Kalantzis' credit relating to that matter, which seemed to me to reflect confusion of Mr Kalantzis and his accountant, as distinct from his account of his conversation with Mr Kovacic in respect of the matter. I have also identified other matters that are adverse to Mr Nicholas Kalantzis' credit above.
23. It is common ground that documents titled "Transfer of Shares" dated 19 February 2015 purported to transfer 33 A class shares in Centura from Mr Kovacic to Buildcon and 34 A class shares from Mr Kovacic to Brokers, and purport to be signed by Mr Kovacic. Mr Kovacic claims, and the Defendants deny, that he did not sign those documents and did not transfer those shares to Brokers and Buildcon, but the Defendants accept that transfer is invalid and of no effect. It is also common ground that two further documents recorded an alleged meeting of directors of Centura held on 19 February 2015, at which the Messrs Kalantzis as directors purported to resolve to register the transfer of 33 A class shares in Centura from Mr Kovacic to Buildcon and 34 A class shares in Centura from Mr Kovacic to Brokers; that the Messrs Kalantzis were not directors of Centura at that date, and that Kovacic has not, as director of Centura or at all, resolved to register the transfer of shares in Centura to either Buildcon or Brokers. Two notices were lodged with ASIC on 20 February 2015 purporting to record the transfer of 33 A class shares in Centura to Buildcon and a further 34 A class shares in Centura to Brokers, with the result that Buildcon would now hold 66 A class shares in Centura and Brokers would hold 67 A class shares in Centura. Those notices were prepared and lodged with ASIC by Mr Tappouras, the accountant acting on behalf of the Messrs Kalantzis. It is common ground that Centura's issued capital remained as 100 A class shares and that those notices did not effect a transfer of shares as recorded in them.
24. The evidence indicates a level of joint activity and consultation between Mr Kovacic and Mr Nicholas Kalantzis in respect of the development and construction of the cafe. There is evidence that Mr Nicholas Kalantzis had an involvement in the building work, and Mr Kovacic accepts that Mr Nicholas Kalantzis acted as foreman in respect of the project, although his evidence was that this reflected the involvement of WCA in the project. Several text messages were exchanged, in April 2015, between Mr Kovacic and Mr Nicholas Kalantzis as to the installation of an awning at the cafe (Ex P4, 411-412). By email dated 27 May 2015, Mr Kovacic copied a record of payment made by Mr Kovacic of $8,643.80 for electrical works, apparently in relation to Centura, to Mr Nicholas Kalantzis. In August 2015, further text messages were exchanged between Mr Kovacic and Mr Nicholas Kalantzis in respect of the need for suppliers to have access to the cafe (Ex P4, 419) and subsequently in respect of certifications required to open the cafe (Ex P4, 421 ff). That joint activity is also indicated by a text message from Mr Kovacic to Mr Nicholas Kalantzis asking him not to talk to anyone in the media again regarding anything "we are doing" without consultation with Mr Kovacic (Ex P4, p 415; T61).
25. Mr Kovacic's evidence is that he sought to require contributions to be made by the Messrs Kalantzis in about mid-2015 and before the cafe opened. Mr Kovacic's evidence is that he said, inter alia (Kovacic 30.10.15 [44]): "I need your contributions before I open if you are going to remain involved. I can't be working 100 hour weeks in a business where you are meant to be involved to find out you two can't raise your money to buy in. If you can't raise your money then you aren't in and its my business." Mr Kovacic's evidence is also that he said he had spent about $450,000 personally, although expenditure of that size is not established by the evidence, and that the Messrs Kalantzis needed to contribute "at least $150,000 each"; that they would not have any shares, rights or participation if they could not come up with that money; and that he would be "running the show" while they had not contributed any cash to the business. Mr Kovacic claims that the Messrs Kalantzis accepted that proposition (Kovacic 30.10.15 [44]. Mr Nicholas Kalantzis denies that conversation and Mr Constantine Kalantzis did not address it in his affidavit evidence.
26. Mr Nicholas Kalantzis in turn gives evidence of a conversation with Mr Kovacic, in July 2015, which, on his account, contemplated that the parties would get a loan "so that everything is equalled out and we all pay our fair share" (Kalantzis 14.11.15 [63]), and to a further conversation with Mr Kovacic seeking accounts so that Nicholas could get finance. One difficulty with that conversation, to which Mr Kovacic refers, is that Mr Nicholas Kalantzis appears to have contemplated that he would borrow on the security of Centura's property to acquire an interest in Centura and Mr Kovacic appears to have objected, not surprisingly, that that course was not appropriate where Mr Kovacic had already funded substantial expenses in the development of the business from his own resources.
27. By minutes dated 28 July 2015 (Ex P4, 463), which purported to be a minute of a shareholders meeting held on that date, and attended by Mr Nicholas Kalantzis, Mr Constantine Kalantzis, Ms Andrea Kalantzis and Mr Tappouras, a resolution was purportedly passed to appoint Mr Nicholas Kalantzis as a director of Centura. Further minutes of a meeting of members purportedly held on 1 August 2015 (Ex P4, 465), and attended by the Messrs Kalantzis, purported to record the passage of a further resolution appointing Mr Nicholas Kalantzis as a director of Centura. The Defendants admit that the purported resolutions appointing Mr Nicholas Kalantzis as a director of Centura were invalid and of no effect. On 26 October 2015, a notice was lodged with ASIC (Ex P4, 400) purportedly recording the appointment of Ms Andrea Kalantzis as a director of Centura. The Defendants admit that that notice was also invalid and did not bring about the appointment of Ms Kalantzis as a director of Centura.
28. The parties also addressed an issue as to whether Mr Kovacic had signed the 2015 share transfers, the share certificates and minutes (Ex P4, 457-462) and Mr Fernon submits that the signature is different to Mr Kovacic's signature as evidenced by the signature on his affidavits. There is no basis for me to determine whether Mr Kovacic signed his affidavits with his usual signature, or has different signatures as Mr Kalantzis contends, and neither party led expert handwriting evidence. The evidence does not permit me to reach a finding as to this issue. Mr Fernon also submits that the transfers of shares, share certificates and minutes purporting to have been created in March 2015 were in fact created in October 2015, for use in these proceedings. I do not consider that I should reach a finding of that serious character, where it is not necessary to do so in order to determine the proceedings.
29. There is some, although by no means complete, evidence of expenditures on the development of the cafe. It appears that Mr Kovacic maintained a record of at least some expenditures on his telephone, which shows substantial expenditures (Ex P4, p 408). A substantial list of expenditures was also set out in an email dated 28 October 2015 from Mr Kovacic to Mr Nicholas Kalantzis, which refers to "$875 steel" in respect of Mr Constantine Kalantzis and states "Nick paid concrete - 4351". Mr Kovacic claimed in cross-examination that, notwithstanding the reference to "Nick paid concrete", Mr Kovacic had paid for the concrete through a company associated with him (T43). Mr Allen put to Mr Kovacic that that email was given by Mr Kovacic to Mr Nicholas Kalantzis as a statement of the expenses incurred in setting up the cafe; Mr Kovacic responded that it was a record made on his phone as he had made payments throughout the period, it was not fully up-to-date, and Mr Kovacic presented it to Mr Nicholas Kalantzis as a starter, when he wanted to know how much money he would have to raise to put in for his share; and denied that the document was presented as a full account of the expenditure incurred in setting up the cafe (T41). A further list of expenditures was sent by Mr Kovacic to his solicitor on 22 December 2015 and tendered in the proceedings (Ex P7) which totalled expenditures of $250,647.08, identified additional categories of expenditure to which no amounts were allocated and also did not include the purchase of the mobile kitchen at a price of $70,000. Mr Kovacic also tendered a large volume of documents relating to the project late in the hearing, which he had not addressed in affidavit evidence and to which neither party referred in submissions.
30. Mr Kovacic's evidence was that WCA was paid for its work on the building, although whether such payment was made is by no means clear on the evidence (T42-43). Mr Kovacic's evidence was also that WCA did not pay trades directly, because it had no funds to do so, and he was paying suppliers, the plumber and concrete cost directly (T49). No evidence such as management accounts was led by either party to establish the financial position of WCA so as to either support or controvert that proposition. Mr Kovacic's evidence that WCA had no funds is potentially inconsistent with the statement, in paragraph 25 of his first affidavit that he drew the sum of approximately $40,000 from the trading profits of WCA and applied it towards the cost of the cafe.
31. In paragraph 69 of Mr Nicholas Kalantzis' affidavit sworn 14 December 2015 he also states that: "I did keep a ledger of expenses met by me and some of the ones I knew from [Mr Kovacic] and [WCA]." As Mr Fernon points out, that ledger was not tendered and I infer that it would not have assisted the Defendants' case. In reaching that inference, I recognise that the Defendants' pleaded case was, of course, that the transfer of shares to Brokers and Buildcon was not conditional on their making contributions to the development of the cafe and, on that basis, the proof of such contributions was not necessary to the case they advanced.
32. The Defendants tendered a bundle of invoices (Ex D2), generally addressed to WCA, some of which recorded Mr Nicholas Kalantzis as the contact person. Those invoices generally do not record whether they were paid, or by whom, although some are annotated to record payment in cash. The amounts involved are not substantial compared to the apparent total expenditure on development of the cafe. It is not clear whether all of those invoices relate to work done on the cafe, since many of those invoices do not record the address at which the work was done. An invoice issued by Concrete Colour Solutions was put to Mr Kovacic in cross-examination, and he responded that the concrete for the cafe building was obtained from Hanson's Concrete and paid from the account of Mr Kovacic's company, and that he had had no knowledge of the involvement of Concrete Colour Solutions in the project (T52). Mr Kovacic accepted that a an invoice issued to WCA related to the provision of crane services for placing the portable kitchen in position but claimed that he personally was invoiced for and paid for that work (T53). Mr Kovacic's explanation for that matter, which is not implausible, is that Mr Nicholas Kalantzis requested invoices from suppliers addressed to WCA for work that was done on the cafe, irrespective of who paid the invoices (T53). At least on Mr Kovacic's evidence, some of the equipment referred to in the invoices tendered by the Defendants, including bain-maries used in the portable kitchen, was not supplied in accordance with those invoices and was obtained from a different supplier (T103). The issue of an invoice to WCA does not, of course, establish that it paid that invoice.

Mr Kovacic's claim

1. Mr Kovacic seeks, inter alia, declarations that his removal as a director of Centura on 27 October 2015 was void and of no effect, that the purported appointments of Mr Nicholas Kalantzis and Ms Andrea Kalantzis as directors of Centura were void and of no effect, and that resolutions passed by Mr Nicholas Kalantzis and Ms Andrea Kalantzis as directors of Centura were also void and of no effect. By their Points of Defence, and by opening submissions made by Mr Allen on their behalf, the Defendants concede that Mr Kovacic is entitled to the relief sought in respect of his directorship of Centura, namely that his purported removal as a director was void, that Mr Nicholas Kalantzis and Ms Andrea Kalantzis are not directors of the Company as no valid resolution was passed appointing them, that Mr Kovacic has been at all relevant times the sole director of Centura and Mr Nicholas Kalantzis and Ms Andrea Kalantzis have never been directors of Centura, and any resolutions passed by them as directors of Centura are void. There is therefore no ongoing issue in that respect and Mr Kovacic should have declarations in accordance with that concession.
2. Mr Kovacic also seeks a declaration that he is, and has at all material times been, the sole shareholder of all issued shares in Centura, and that purported transfers of 33 A class shares in Centura by him to Buildcon and 34 A class shares in Centura by him to Brokers are also void and of no effect. Subject to their Cross-Claim, the Defendants concede that Mr Kovacic is also entitled to the relief he sought in respect of the shareholding in Centura, to the effect that he had at all material times been the sole shareholder in Centura and the purported transfers of shares to Buildcon and Brokers were ineffective and that no party other than Mr Kovacic had relevantly been a shareholder of Centura. However, the Defendants rely on their Cross-Claim seeking an order for specific performance of an alleged agreement that Buildcon and Brokers were entitled to become shareholders in Centura. I will address that Cross-Claim below.
3. Mr Fernon acknowledged in closing submissions that there was no need for a declaration that any amendment to Centura's register to record Buildcon and Brokers as members was void or of no effect, because the evidence is not such that the Court could be satisfied that such an amendment had been made (T206-207). Mr Fernon also accepted that the declaration sought that Centura was entitled to amend its register of members by deleting the names of Buildcon and Brokers would not be appropriate where it was not clear that those names have been entered in the register (T207). Mr Fernon raised the possibility that the Court might make a conditional declaration, against the contingency that the names of Buildcon and Brokers had been entered on the register, but it seems to me that that declaration deals with a hypothetical state of facts and should not be made.
4. Mr Kovacic initially also sought order to rectify the register of Centura under s 175 of the Corporations Act 2001 (Cth). That section provides, relevantly, that a person aggrieved may apply to the court to have a register kept by a company corrected and, if the court orders that company to correct the register, it may also order that company to compensate a party to the application for loss or damage suffered and to lodge notice of the correction with ASIC. That section operates in parallel to, and arguably assumes the existence of, the court's equitable jurisdiction to rectify a register: Grant v John Grant & Sons Pty Ltd [1950] HCA 54; (1950) 82 CLR 1 at 51; Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1996) 20 ACSR 553 at 558-559. The authorities recognise that the applicant for rectification must show a personal equity that the court will protect; prima facie, such an equity is shown if a person's name is wrongly omitted from the register; however, the court has a broad discretion whether to order the correction of the register of members and may decline to order rectification if there is some reason why that should not occur: Grant v John Grant & Sons Pty Ltd above at 51.
5. There seem to me to be several reasons why an order for rectification of the register should not now be made, although I consider that I should reserve liberty to apply if a register is later located. It is not clear whether a register of Centura exists, notwithstanding the statutory requirement that it be maintained; or, if it exists, who holds it so as to give effect to an order for rectification of it; or what it records, which may or may not be correct. Mr Kovacic's evidence was that he had not acquired the register of members when he arranged for Centura to be set up (T38). It is also entirely plausible that the register still records the correct position, despite the incorrect information that has been notified to the Australian Securities & Investments Commission ("ASIC"), and Mr Allen made clear that the Defendants' Cross-Claim seeking orders for specific performance of an agreement to transfer shares in Centura to Buildcon and Brokers Property is pursued on that basis.
6. Mr Fernon extended the relief sought by Mr Kovacic, in closing submissions, to seek an order for rectification of the information recorded by ASIC in respect of Centura under s 1322(4) of the Corporations Act. It is clear that information notified to ASIC wrongly recorded transactions that were not validly undertaken, namely the transfer of shares to Brokers and Buildcon on particular dates and the appointment of Mr Nicholas Kalantzis and Ms Andrea Kalantzis as directors of Centura. That is sufficient reason to require that information to be corrected, even if success by Buildcon and Brokers in the Cross-Claim would now require a further, separate, entry in the register (if it was located) recording a transfer of shares which was now made to them pursuant to that agreement. Section 1322(4)(b) of the Corporations Act provides that the Court may, on the application of an interested person, make an order directing the rectification of any register kept by ASIC under the Corporations Act. Mr Kovacic is plainly an interested person, where the position presently recorded in ASIC's records in respect of Centura reflects the result of the transfers by which he was deprived of a substantial portion of his shareholding in Centura, which the Defendants accept were not effective.
7. The authorities indicate that the power of rectification of a register under s 1322(4)(b) of the Corporations Act extends to permit the rectification of a register maintained by ASIC under s 1274 of the Corporations Act, which requires ASIC to keep such registers as it considers necessary in such form as it thinks fit, and also to those registers that are prescribed under reg 9.1.01 of the Corporations Regulations 2001 (Cth). In Re MIG Property Services Pty Ltd (No 2) [2012] VSC 606; (2012) 92 ACSR 234 at [64], Robson J was prepared to infer that a database maintained by ASIC under s 1274A of the Corporations Act, was an extract of the register of companies prescribed under reg 9.1.01(a) of the Corporations Regulations, and I would draw the same inference in respect of the database recording information as to the shareholdings and directorships of Centura: compare Re DJG Equities Pty Ltd [2014] NSWSC 194 at [5]. The information contained in that register would include, by reg 9.1.02(a) of the Corporations Regulation, information as to the paid-up capital of the company, and the information sought to be rectified in this case relates to the ownership of the shares in Centura. I conclude that the information relating to the shareholding in Centura is prescribed information concerning the company's shareholding contained in the prescribed register of companies.
8. Second, although this question has been the subject of differences of view in the case law, recent case law indicates that the Court has power to rectify such a register under s 1322(4)(b) of the Corporations Act, so as to correct incorrect information which was included in a notification required to be given to ASIC. In Demetriou v Gusdote Pty Ltd [2010] FCA 581; (2010) 78 ACSR 566 at [33], an order for rectification of ASIC's records was made, albeit without extended reasoning, in a similar case to the present case, where a change to the shareholding of a company had been made such that ASIC's records did not then reflect the true position. A broad view of the scope of rectification under s 1322(4)(b) of the Corporations Act was also taken by the Court of Appeal in Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38; (2008) 71 NSWLR 262 at [45]ff and also by Robson J in Re MIG Property Services Pty Ltd (No 2) above, where his Honour treated the power under s 1322(4)(b) as sufficiently wide to allow rectification of the register where the process by which the event had been included in the register was invalid. In Re Botanical Water Holdings Pty Ltd; Agao Nominees Pty Ltd v AJ Phoenix Pty Ltd [2013] VSC 96, Robson J similarly ordered that ASIC's register of companies be rectified where his Honour found that a change to the shareholding recorded in that register had not been validly made, and I took the same view in Re DJG Equities Pty Ltd above.
9. The Defendants' concession establishes that the process leading to entry of the current information in ASIC's register of the shares in Centura was invalid, so far as it was founded on a notification to ASIC of a share transfer that the Defendants accept was invalid. Mr Kovacic is entitled to have the correct position, reflecting the invalidity of that transfer, recorded in the register maintained by ASIC. This seems to me to be sufficient to support an order for rectification of ASIC's register, although ASIC will need to be joined to the proceedings and given an opportunity to be heard before that order takes effect. Such an order will not require ASIC to take any action in respect of those forms which were previously filed with ASIC from which ASIC extracted the information now included in the prescribed register of companies, which may remain accessible as a matter of record, as distinct from recording the true position as it now stands.

The Defendants' Cross-Claim

1. As I noted above, by their Cross-Claim, the Defendants seek an order that Mr Kovacic perform an agreement with Buildcon and Brokers to transfer shares in Centura to them by transferring 33 class A shares to Buildcon and 34 class A shares to Brokers and causing Centura to register the transfers in its registers of members.
2. The structure of the Defendants' Cross-Claim emerges, to a limited extent, from the pleading of its Defence and Cross-Claim. The Defence pleads that: "7. At the end of 2013 an agreement was reached. 8. In June 2013 Nick [Kalantzis] and [Mr Kovacic] had a meeting at Woolloomooloo. 9. They sought some sustenance. 10. They found some at an establishment known as Harry's Cafe de Wheels. 11. Whilst eating at the said cafe Nick [Kalantzis] and [Mr Kovacic] came upon the concept of setting up a similar business at Gosford. 12. They then jointly pursued the Concept. 13. Nick [Kalantzis] then: a obtained a suitable van for the cafe; b pursued a lease or licence of lease for use of part of the Gosford waterfront. 14. The company [WCA] then lodged an expression of interest for use of part of the Gosford waterfront for the Concept. 15. Both Nick [Kalantzis] and [Mr Kovacic] then lobbied for the grant of a licence for use of part of the Gosford waterfront for the Concept. 16. At that stage [Mr Kovacic] represented to Nick [Kalantzis] that: a [h]e had a company called Centura Global Holding; b [i]t was a dormant company; c [t]hat it was a suitable vehicle for he and Nick to pursue a lease or licence for use of part of the Gosford Waterfront for the Concept. 17. [Mr Kovacic] and the following parties then made an agreement: a Buildcon through its agent Nick [Kalantzis]; b Centura Global Holdings, through its agent [Mr Kovacic]. 18. The terms of the agreement included: a [Mr Kovacic] would transfer 33 of the 100 issued shares in Centura Global Holdings to Buildcon; and b [Mr Kovacic] would transfer 34 of the 100 issued shares in Centura Global Holdings to Brokers. 19. The consideration for the transfer of shares was the agreement by Buildcon and Brokers through Con [Kalantzis] and Nick [Kalantzis] to participate and pursue the business being contemplated by Centura Global Holdings, being the development and conducting of a fast food restaurant known as Eat Street Cafe. 20. When the agreement was made there was an enforceable agreement: a [c]apable of specific performance including an order that the share register of Centura Global Holdings be amended to show the agreed change in shareholding; and b [a]menable to an order pursuant to section 175 of the Corporations Act 2001 requiring Centura Global Holdings to correct its register of members by recording the transfer of shares agreed to above. 21. The agreement was not conditional upon the performance of any condition."
3. The Points of Cross-Claim pleaded by the Defendants were even more economical, pleading merely that: "2. There was an agreement to the effect that Buildcon and Brokers were to be given or transferred shares in Centura Global Holdings. 3. This agreement was made for valuable consideration. 4. Accordingly Buildcon and Brokers are entitled to orders that: a [Mr Kovacic] and Centura Global Holdings specifically perform the agreement to cause the transfer of shares in Centura Holding[s] from [Mr Kovacic] to Buildcon and Brokers to be recorded in the Register of Members of Centura Global Holdings; and b [p]ursuant to section 175 of the Corporations Act 2001 that Centura Global Holdings correct its registers by recording that: i [t]he issued share capital of Centura Global Holdings is 100 shares; ii That Buildcon holds 33 shares; iii That Brokers holds 34 shares; iv [Mr Kovacic] holds 33 shares."
4. Mr Kovacic accepts that there was an agreement between him and the Messrs Kalantzis, formed about the end of 2013, by which they would become equal shareholders with Mr Kovacic in Centura, upon their making equal capital contributions to the establishment and operations of the cafe. That agreement is pleaded as follows in paragraph 14 of Mr Kovacic's Points of Claim: "At or about the end of 2013, Mr Kovacic, Nicholas and Constantine [Kalantzis] entered into an agreement pursuant to which Nicholas and Constantine would become equal shareholders with Mr Kovacic of Centura upon Nicholas and Constantine [Kalantzis] making equal capital contributions to the establishment and operations of the Eat Street Cafe. PARTICULARS The agreement was partly oral and partly implied. In so far as it was oral, it was contained in a conversation between Mr Kovacic, Nicholas and Constantine [Kalantzis] as set out in paragraph 22 of Mr Kovacic's affidavit sworn 30 October 2015 in these proceedings. In so far as it is implied, it was implied from that conversation that to when [sic] Nicholas and Constantine [Kalantzis] had made equal capital contributions, they would receive an equal shareholding." That proposition is denied by the Defendants' Defence, presumably on the basis that they contend that agreement did not require such contributions from them. Mr Kovacic pleads that the Messrs Kalantzis have not made equal or any capital contributions to the establishment and operation of the Eat Street Cafe and have not become entitled to become shareholders of Centura and those propositions are also denied by the Defendants.
5. It is common ground that the primary issue between the parties is as to the terms of, and any conditions to, an agreement which both parties accept contemplated the transfer of shares in Centura by Mr Kovacic to the Messrs Kalantzis, although there is a dispute as to whether the obligation to transfer those shares was unconditional, or arose only when the Messrs Kalantzis made proportionate contributions to the cost of developing the cafe.
6. It is also common ground that the Court may have regard to the subsequent conduct of the parties in reaching findings as to whether such an agreement existed (which is here not in dispute) and as to its terms, as distinct from questions of construction in respect of such an agreement. In Mears v Safecar Security Ltd [1983] QB 54 at 77, Stephenson LJ (with whom O'Connor LJ and Sir Stanley Rees agreed) observed that: "I have already expressed my view that this agreement was oral, but even if it was partly in writing, we are concerned with the search for a term that was not written down, and there is nothing in those authorities which prevents the court from looking at the way the parties acted for the purpose of ascertaining what that term was. Common sense suggests that their subsequent conduct is the best evidence of what they had agreed orally but not reduced to writing, though it is not evidence of what any written terms mean… ." This observation was approved by Owen J in The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239 at [2668] and by Murphy JA (Pullin & Newnes JJA agreeing) in Fazio v Fazio [2012] WASCA 72 at [192]-[195].
7. In County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193, to which Mr Allen referred, Spigelman CJ (at [24]) described post-contractual conduct as a matter of "significant weight" in identifying the subject matter of an alleged oral contract. McColl JA also there noted (at [161]-[162]) that, although subsequent communications cannot be looked to as an aid to construction of a contract, they can be looked to "as an aid to deciding whether a contract has been entered into" and subsequent conduct can also constitute an admission of the state of the parties' rights, although care must be taken in identifying the fact said to have been admitted.
8. In Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [143], Campbell JA observed that: "… the task in ascertaining what are the terms of a contract that is not wholly in writing … is finding as a fact what the parties have agreed. A range of post-contractual conduct could be relevant to ascertaining what the parties have agreed. For example, their conduct in carrying out the contract could itself be objective evidence of what they had agreed, an admission of one of the parties could assist in ascertaining what they have agreed, and business records created to record or report on the contract rather than carry it out could also assist in that task."
9. In Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295 at [98]-[99], Edelman J similarly observed that: "… subsequent conduct is a relevant matter to consider in finding whether, as a fact, the alleged oral promises were made. … This approach also accords with principle. It would be peculiar if courts were to be constrained in the exercise of finding facts from considering any relevant matter subsequent to the alleged occurrence of the fact in issue."
10. Mr Allen submits that the shares in Centura were to be transferred in consideration for the Messrs Kalantzis' involvement in the business of Centura and that there was no condition to such a transfer requiring the making of any proportionate or other contribution by them to the development of the cafe, although he accepted in closing submissions that the parties likely contemplated that such a contribution would in fact be made. Mr Allen also submits that the agreement for which the Defendants contend does not preclude adjustment being made between Centura and the shareholders for money they actually contributed, and he refers to Mr Nicholas Kalantzis' evidence (to which I referred in paragraph 12 above) that he was willing to make a contribution (T176), although that evidence was in the context of a suggested borrowing of the funds to do so. I should also note that Mr Constantine Kalantzis did not lead corresponding evidence.
11. Mr Allen submits that the version of the agreement for which the Defendants contend is more probable since the issue of shares is not usually conditioned on the performance of a condition precedent, when persons embark on a joint enterprise, and shares are acquired at the outset. I do not consider that the Court can proceed on the basis of any assumption as to any usual practice in that regard, quite apart from the fact the facts of this case involve a transfer of existing shares rather than an issue of new shares. Mr Allen emphasises, and I recognise the importance of, Mr Kovacic's evidence that he made Buildcon and Brokers shareholders. However, where the transfer of shares to Buildcon and Brokers were not effective, as the Defendants accept, Mr Kovacic cannot now be compelled to retransfer those shares unless a binding and enforceable agreement requires him to do so, its conditions are satisfied, and an order for specific enforcement of that agreement can properly be made.
12. Mr Allen also submits that WCA was not paid for works for which it would usually be paid, if it were involved in the project as a builder rather than by reason of the parties each owning shares in Centura. The evidence is unclear as to whether WCA incurred monetary expenses in respect of the project, although I accept that the Messrs Kalantzis and WCA devoted time to the project, and the evidence is also unclear as to whether it was paid such expenses or for its work. Mr Allen submits that the rational explanation is that the work was performed without charge because each of Mr Kovacic, Buildcon and Brokers had a third interest in the Beecroft project being performed by WCA and a third interest in Centura. Mr Allen also refers to the lack of records of the parties' financial contributions, and submitted that accurate records of expenditure would have been kept if that was a precondition to the transfer of the shares. It did not seem to me that the parties would necessarily have kept comprehensive records whatever their contractual arrangements. There do, however, seem to have been some records of expenditures, to which I have referred above. It has not been established that there is a lack of records of the financial contributions made, such that the parties could not assess their respective contributions, although the parties have not made any adequate attempt to lead evidence of those matters at the hearing.
13. Mr Allen fairly recognised, in closing submissions, that much of the subsequent conduct of the parties, although admissible, was equivocal since it would be explicable by both versions of the agreement for which the parties respectively contended. It seems to me that that concession was correct. If the Defendants' version of the relevant agreement is correct, and performance of it was not conditional on their making proportionate contributions to the cost of developing the cafe, their assisting with the development of the cafe would be explicable as their seeking to maximise the value of the shares to be transferred to them. If Mr Kovacic's version is correct, then they also had an interest in making such contributions, both to satisfy the relevant condition, and in anticipation that they would benefit from the transfer of shares in Centura to them when that condition was satisfied. If a third version, for which no party contends, that there was a contractual obligation to make such contributions which was not a condition precedent or subsequent, were correct, then the conduct may amount to partial performance of that obligation. A fourth possibility, noted by Mr Allen in submissions, is that there was an informal understanding between the parties that the Messrs Kalantzis would make such a contribution, or that they were willing to do so voluntarily, without being under any obligation to do so (T179). The evidence that the parties were working together in respect of the development of the cafe, and WCA was also involved, therefore does not take further the question whether the transfer of shares to the Messrs Kalantzis was or was not conditional on a proportionate contribution to the costs of the project.
14. In closing submissions, Mr Allen recognised that there was a middle ground, between the Defendants' case and Mr Kovacic's case, that an agreement was reached for the immediate transfer of shares from Mr Kovacic to Buildcon and Brokers and a term of that agreement, although not a condition precedent, was that the Messrs Kalantzis were required to pay an equal amount of the capital contribution required to set up the business of Eat Street Cafe. However, as Mr Allen pointed out, neither party had contended for that position, and he made clear that the Defendants "certainly" did not contend for it (T176). Mr Fernon responded that the Court should determine the case that was put by the parties, which involved a question as to the conditions of the relevant agreement and a claim for specific performance, and that Mr Nicholas Kalantzis had led no evidence of his ability to make any payment so as to satisfy a requirement for proportionate contributions in respect of the project (T201). (I note, for completeness, that Mr Constantine Kalantzis had also led no such evidence.) Mr Fernon also emphasised that Mr Kovacic had understood the case that was put by the Defendants as that it was simply not part of the agreement that there be any form of capital contribution by them; that the Messrs Kalantzis had not (or, I interpolate, had at least not adequately) sought to establish any such contribution; and that Mr Kovacic had therefore not been required to respond to evidence of such a contribution, where it was not part of the case put against him (T201).
15. Mr Fernon also pointed out that, as I have noted above, paragraph 21 of the Points of Defence, which appears to have been adopted by the Cross-Claim, had pleaded that the agreement was not conditional upon the performance of any condition by the Messrs Kalantzis, and that pleading did not raise any suggestion that there was any other express or implied term that contemplated any equalisation of contributions of shareholders in Centura (T201).
16. As I had noted in the course of submissions, it does not seem to me appropriate to determine a case that neither party had advanced, and which would have raised issues as to, for example, whether sufficient information had been provided by Mr Kovacic to the Messrs Kalantzis to allow them to make any relevant contributions; whether the Messrs Kalantzis were willing and able to perform any obligation of making such contributions, as a term of any order for specific performance in their favour; and whether the Court would order specific performance, if a contractual term requiring contributions by them had not been satisfied by them. None of those matters had been adequately addressed in evidence or submissions where neither party contended for that possibility.
17. Mr Fernon in turn relies on the principles in Watson v Foxman (1995) 49 NSWLR 315 and on my summary of those principles in Re Kit Digital Australia Pty Ltd (in liq) [2014] NSWSC 1547 at [7], as matters that do not support the finding that such an agreement existed. I there observed that: "It is important in this context to have regard to the fallibility of human memory which increases with the passage of time, particularly where disputes or litigation intervene: Watson v Foxman (1995) 49 NSWLR 315 at 318-319 per McLelland CJ in Eq; Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (No 2) [2008] FCA 810 at [41] per Rares J; Varma v Varma [2010] NSWSC 786 at [424]-[425] per Ward J. To the extent that credit issues need to be determined in respect of particular conversations, I have also had regard to the fact that objective evidence is likely to be the most reliable basis for determining them. I summarised the relevant principles in Re Colorado Products Pty Ltd (in prov liq) [2014] NSWSC 789 at [10], where I noted that the credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to the witness's motives and the overall probabilities: Armagas Ltd v Mundogas SA [1985] 1 Ll R 1 at 57; Camden v McKenzie [2007] QCA 136 ; [2008] 1 Qd R 39 at [34]; Craig v Silverbrook [2013] NSWSC 1687 at [141]; State of New South Wales v Hunt [2014] NSWCA 47 at [56]."
18. Mr Fernon submits that the discussions as to the Messrs Kalantzis becoming shareholders in Centura required that they contribute equal capital with Mr Kovacic; that no evidence is led by them to establish the payment of any such capital; and no entitlement to become shareholders arose from the alleged agreement. Mr Fernon also submits that, given the substantial contributions apparently made by Mr Kovacic to the development of the cafe, there is no reason shown why he would have transferred a shareholding in Centura to the Messrs Kalantzis if no equal contributions were to be required from or be made by them.
19. It should be recognised that the first conversation on which the Defendants relied, as set out in paragraph 26 of Mr Nicholas Kalantzis' affidavit dated 14 December 2015, involves no element of promise by Mr Nicholas Kalantzis, whether as to making contributions by him to the development of the cafe or otherwise. The second conversation, relating to the introduction of Mr Constantine Kalantzis to the venture, again does not include any commitment by the Messrs Kalantzis. The third conversation relates to the arrangements as to who would hold Mr Constantine Kalantzis' shares and again involves no commitment by the Messrs Kalantzis. Both Mr Nicholas Kalantzis and Mr Constantine Kalantzis accepted, by the evidence referred to in paragraphs 12 and 16 above, that they understood they would be responsible for contributing a "fair share" (or a proportionate share) of the "capital" (used in the broader sense noted above, referring to funding required for the project) although they claimed in evidence to have done so.
20. It seems to me unlikely that Mr Kovacic would have agreed to transfer the shares to the Messrs Kalantzis without any discussion, even in general terms, of any contribution to be made by them to the costs of the development of the cafe. It also seems to me that the evidence of the surrounding circumstances, and the manner in which Mr Kovacic conducted himself generally, does not suggest that he would so disregard his own economic interests in respect of the cafe to give away an interest in Centura to the Messrs Kalantzis without requiring a proportionate contribution by them to the costs of the cafe, even if they or WCA had already undertaken work in respect of the cafe. It seems to me more likely that Mr Kovacic's account of the conversations records at least the substance of what occurred, namely that shares in Centura were to be transferred to companies associated with the Messrs Kalantzis (or more precisely their daughters) if they made, or on condition that they made, proportionate contributions to the cost of the development of the cafe. The notification of the transfer of those shares in February 2014 is not inconsistent with that view, where Mr Kovacic likely did not recognise that a transfer of shares could not readily be made on the conditional basis that he contemplated. In the event, the transfer of those shares does not assist the Defendants, because it was not effective by reason of the absence of approval for the registration of the transfers.
21. The evidence suggests that Mr Kovacic has made a substantial financial contribution to the development of the cafe and the Messrs Kalantzis may have made at least some financial contribution, directly or indirectly, to the development of the cafe, but does not presently permit the quantification of any contributions by the Messrs Kalantzis. Mr Allen fairly accepted in opening that the evidence was not such that the Defendants could establish that the relevant contributions had been made, if Mr Kovacic established the proposition that a condition to the relevant agreement contemplated such contributions (T4).
22. On balance, I am satisfied, on the basis of the admissions made by Mr Kovacic in the Points of Claim, that he had agreed, whether on a contractual basis or by an informal understanding, to transfer shares in Centura to the Messrs Kalantzis (or the entities nominated by them) if they made proportionate capital contributions to the project. It is not necessary to determine whether that agreement or understanding involved, in legal terms, a form of condition precedent to performance of the obligation to complete the transfer of shares, or a condition subsequent, or a contractual obligation (a position for which, as I noted above, the parties did not contend) or was an informal and possibly non-contractual understanding. It is also not necessary to determine whether Mr Kovacic later failed to provide adequate information as to the extent of the monies he had contributed to the development of the cafe to the Messrs Kalantzis, to allow the quantum of a proportionate contribution by the Messrs Kalantzis to be determined. It is not necessary to determine those matters because the Messrs Kalantzis do not seek an order, for example, that Mr Kovacic provide them with such information to allow them to make such a proportionate contribution or seek an order that the shares be transferred on condition that they make such a contribution, or lead any evidence that they or the companies associated with their daughters have the capacity to make such a contribution.
23. Because of the way in which the parties have put their cases, the Court must determine whether it should make an order for specific performance made without a finding that the Defendants have made a proportionate contribution to the funding of the development of the cafe or a condition that they in future do so, that is, on the basis that the parties' agreement did not require such a contribution by them prior to the issue of the shares to their associated entities (cf Mr Allen's submissions at T209). As I noted above, Mr Allen accepts (notwithstanding some evidence of the Messrs Kalantzis that takes a contrary position) that the evidence does not establish that the Defendants had previously made a proportionate contribution or, in the language used in cross-examination, a "fair" contribution. I am not satisfied that they have established an agreement in a form that would support an order that was not conditional on their having made, or having the capacity to make and making, such a contribution.
24. Had I reached the contrary view, I would not in any event have made an order for specific performance, as distinct from leaving the Defendants to their rights to damages in lieu of such an order, and allowing them a further opportunity to establish the quantum of their claim for damages to the extent they have paid out monies or provided services in the expectation that they would receive an interest in Centura. It seems to me that an order for specific performance would not have been a proper exercise of discretion where no undertaking was offered by the Defendants to do equity by making proportionate (or "fair") contributions, there is no evidence of their capacity to do so and such an order would have brought parties whose relationship has broken down together in a closely held company, with the likely result of further disputes.
25. An order for rectification of the share register of Centura also cannot be made in favour of the Defendants, both because the register of Centura has not been produced by any party and it is not clear what is contained in it, and because the proposition that Buildcon and Brokers should properly be recorded in the register of members is not established where the Court has not made an order for specific performance in their favour.

Orders and costs

1. Accordingly orders for rectification of the registers maintained by ASIC in respect of the shareholdings and directors of Centura should be made as noted above. The Defendants' Cross-Claim should be dismissed. The Defendants should pay the costs of and incidental to the proceedings, as agreed or as assessed. The parties should bring in short minutes of order to give effect to this judgment within 14 days. I note that an application in respect of an alleged contempt by Mr Nicholas Kalantzis, in respect of earlier interlocutory orders made by the Court, is proceeding separately.

Amendments 15 March 2016 - Decision: Change "The Second and Third Defendants to pay" to "The Defendants (as defined in paragraph 1) to pay" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 March 2016