Dillon v Gange

Supreme Court of WA|2009-05-18|Before: Mr P, Heenan J

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LUNT -v- BRIGGS [2009] WASC 134

HEARD : 23-25 & 27 FEBRUARY, 3-6 & 9 MARCH 2009

Contract - Remuneration for services - Debt - Novation - Existence of agreement - Whether executed - Handwriting evidence - Credibility - Acknowledgment of liabilities in company accounts - Turns on its own facts

Judgment for the plaintiff in the sum of $517,900 plus interest thereon at 8% to be calculated and in accordance with s 32 of the Supeme Court Act

Judgment for the plaintiff in the sum of $482,000 plus interest thereon at 8% to be calculated and in accordance with s 32 of the Supreme Court Act

Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363

1 EM HEENAN J: These two actions, heard together, are money claims by the plaintiff for the balance of debts alleged to be due to him for services rendered to WRS Pacific Pty Ltd (WRS), one of the names by which New Resources Holdings Pty Ltd, the defendant in the second action, was once known.

2 The name of New Resource Holdings Pty Ltd has changed over the course of time. The details can be found in exhibit 118 which is an historical company extract showing the names of the company, the various directors and their time of office and incidental details. For present purposes it is enough to note that the name of the company has been as follows:

3 The plaintiff in each action relies upon a consultancy agreement, alleged to have been entered into between himself and WRS on 12 April 1991, as the source of the obligation by WRS to pay for the consultancy activities said to have been performed and to fix the rate or rates of remuneration for them. Mr Lunt also asserts that the 12 April 1991 consultancy agreement was extended by the directors of WRS by letter dated 23 June 1993. Both defendants deny that this, or any other consultancy agreement, was made with Mr Lunt and, further, assert that the document relied upon by the plaintiff, a document dated 12 April 1991 and apparently duly sealed by WRS, was never agreed by that company or executed by it and plead that this alleged document is not 'authentic'. Although this plea was hedged about with equivocations and the evidence and submissions on the point were similarly guarded, there is no escape from the conclusion that the defendants' positions amount to allegations that the apparent execution of the agreement bearing date 12 April 1991 is, at least in part, a forgery.

4 According to the plaintiff, a situation was reached by 30 June 1994 where the balance of moneys then due and owing by WRS to him under the consultancy agreement was $652,900 and this was accepted and recorded in the accounts of WRS at that date. The plaintiff's case is that, for reasons which will need to be examined in some detail but which were associated with negotiations for WRS to be taken over by a New Zealand publicly listed company, Max Resources Ltd (Max Resources) but which later culminated in Max Resources purchasing all the assets and undertaking of WRS, the defendant, Mr Peter Briggs, desired to have all the indebtedness of WRS to Mr Lunt removed from the balance sheet and extinguished as a liability of WRS. According to Mr Lunt he, and another consultant of WRS, a colleague, Mr Skidmore, who was in a similar position but whose debt was smaller, agreed for those debts to be removed from WRS but only on condition that the liability for them was assumed by Mr Peter Briggs personally or, in Mr Skidmore's case, by Mr Briggs' company Essex Properties Pty Ltd. In Mr Lunt's case, he claims that Mr Briggs agreed to this by a letter dated 20 June 1995 signed by Mr Briggs in the course of a luncheon with Mr Lunt and others at Coco's Restaurant, South Perth (the Coco's letter).

5 As a consequence of obtaining the Coco's letter Mr Lunt later prepared and delivered to WRS a letter signed by him forgiving and discharging WRS from any liability to pay the debt for the consultancy fees which had accrued to 30 June 1994. The plaintiff contends that this arrangement for the assumption of the liability to pay the then outstanding balance of the consultancy fees by Mr Briggs, in the place of WRS, and the consequent release by Mr Lunt of WRS from any liability in respect of that debt, amounted to a form of novation.

6 No issue has been raised in these proceedings as to whether or not, if those be the facts, this did amount to a novation or that the effect of such an arrangement by which WRS was to be discharged from liability and Mr Briggs was to assume the liability should have been recorded in a deed. Although the potentialities for these issues to arise in the circumstances were pointed out at any early stage in this trial, counsel on both sides disclaimed reliance on any such lines of argument and were content to treat the rearrangement of the liabilities alleged to have occurred as a contract between the parties for consideration which would be enforceable if the facts were essentially those as alleged by the plaintiff.

7 Mr Lunt further claims that as a result of subsequent transactions he was paid $135,000 on behalf of WRS, on or about 26 June 1996, in reduction of the sum then owing of $652,900, bringing the balance outstanding to $517,900. It is for that latter sum which Mr Lunt sues in the first action together with interest pursuant to s 32 of the Supreme Court Act which he submits should be allowed at the rate of 8% per annum.

8 While the debt of $652,900 shown on the WRS balance sheet of 30 June 1994 was removed and discharged in the manner described, Mr Lunt maintains that his consultancy agreement with WRS was not terminated but, in fact, continued having been extended by letter dated 11 June 1993. He claims that he continued to perform services for WRS from 1 July 1994 until 15 April 1997, so generating a further aggregate liability by WRS for consultancy fees in the amount of $482,000. It is for this sum, together with interest, again pursuant to s 32 of the Supreme Court Act and at 8% per annum, which Mr Lunt claims in the second action against the company itself.

9 At all material times WRS was effectively controlled by Mr Peter Briggs alone. For some years, including 1991, he was disqualified from acting as a director of any company yet it is clear that, during the period of the disqualification, he nevertheless effectively controlled WRS, and many other companies of which his wife, Mrs Robin Yvonne Briggs, was a director and his effective amanuensis.

10 In both actions, in the first personally, and in the second as the controller of New Resource Holdings, Mr Briggs defends the plaintiff's claims essentially for the same reasons. According to Mr Briggs WRS never engaged Mr Lunt for reward as a consultant whether pursuant to the alleged agreement of 12 April 1991 or at all. Rather, Lunt was a shareholder with 25% of the issued capital in WRS at the time (with Briggs holding 70% and Skidmore 5%) and was effectively a co-venturer in the development of an enterprise for the manufacture and sale of technology and associated franchises for a fertilizer product to be made from chicken manure. This technology was being developed in various places, but principally in Indonesia, Pakistan, India, and France. Messrs Lunt and Skidmore were the original promoters. They later came to Mr Briggs and involved him, through WRS, as the source of venture capital for the developing enterprise. Consequently, according to Mr Briggs, the only reward or remuneration which Mr Lunt could expect to receive in the event of the success of the venture would be the income which would derive to him as a shareholder. He would have the potential to realise on that investment by the sale of shares in the company the value of which could be expected to appreciate significantly.

11 According to Mr Briggs, he was only ever willing to grant a consultancy status for reward, and enter into a consultancy agreement for the payment of fees, to Mr Lunt's colleague, Mr Skidmore, because the latter had all the technical and engineering expertise essential for the development of the venture. According to Mr Briggs, Mr Lunt was not entirely happy with this situation and constantly pressed for a formal consultancy agreement engaging him for reward but, so says Mr Briggs, this was never granted or agreed.

12 At this point, the controversy over the existence of the consultancy agreement becomes somewhat complicated because the evidence is clear that Mr Briggs' solicitors, on behalf of WRS, engaged in correspondence suggesting that a consultancy agreement would be granted, was in the course of preparation, had been prepared and, in fact, was prepared. This is the consultancy agreement which the plaintiff relies upon. However, Mr Briggs contends that he never authorised this and never entered into any legally binding arrangement to engage Mr Lunt as a consultant. He further contends that during this period (essentially from May 1990 until October 1991 or thereabouts) it was Mr Lunt who, on Mr Briggs' behalf, conducted most of the dealings on behalf of WRS with its solicitors and accountants and in the process purported to give instructions and made assertions to advance his own self interest but which he, Mr Briggs, never approved or authorised.

13 Next, Mr Briggs claims that the consultancy agreement of 12 April 1991 was never executed by WRS at the Briggs home that day in the presence of Mr Lunt, the company secretary, Mr Kevin Bond, the company secretary, Mrs R Y Briggs or himself as Mr Lunt contends. Mr Briggs says that the signature of Mrs R Y Briggs on the attestation clause of the company WRS as its director is not her signature and that no such agreement was ever validly executed by the company on any other occasion.

14 Further, Mr Briggs gave evidence that, because of his preoccupation with many other business affairs in the period from 1991 to 1995, he never read either the management accounts or the annual financial accounts for WRS for the years ended 30 June 1992 to 30 June 1994 inclusive and, accordingly, was not aware of the steady accumulation of any recorded liability by the company to Mr Lunt for consultancy fees as shown in the balance sheets of the company and other entries in the annual accounts over those years. He says that he left the running of the company to Mr Lunt and Mr Kevin Bond and that these repeated acknowledgements in the accounts of liability for consultancy fees to Mr Lunt found their way there entirely because of the self-interest of Mr Lunt and his ability to influence Mr Bond.

15 However, Mr Briggs does say that by mid-1995 he discovered that Mr Lunt was advancing his claim for consultancy fees and that entries in the company accounts at 30 June 1994 recording a substantial liability of the company for consultancy fees due to Mr Lunt had been made. He says that, on discovering this, he immediately sent for Mr Lunt, remonstrated with him, told him that this was 'a try-on', confirmed that there had never been a consultancy agreement nor any such entitlement and demanded that Lunt rectify the position and have the record of false indebtedness removed. According to Mr Briggs, Mr Lunt complied with this demand, and agreed to the removal of the recorded indebtedness from the books of the company, and prepared a letter to that effect to the company's accountants - addressed to Mr Bond to confirm this position and to justify the accountants making the adjustment.

16 Consistently with this approach, Mr Briggs gave evidence that WRS had never authorised the extension of the (non-existent) consultancy agreement as asserted by Mr Lunt and that the letter of extension of 11 June 1993 (exhibit 58) apparently bearing the signatures of Mrs R Y Briggs as director and Mr K Bond as secretary of WRS was a fabrication and that those signatures were not genuine. He made similar observations about another letter of the same date from another Briggs company, Essex Properties Pty Ltd, to the directors of WRS and apparently bearing the signature of Mrs R Y Briggs, which is exhibit 148.

17 Similarly, Mr Briggs denied ever agreeing to take over the (non-existent) debt of WRS to Mr Lunt for consultancy fees accrued due to 30 June 1994 and denies ever having signed the Coco's letter (exhibit 104) asserting that the signatures on that document appearing to be his own and that of Mr Bond are not genuine.

18 As to the claims in the second action, Mr Briggs says that because there never was a consultancy agreement between WRS and Mr Lunt, the company was never under any liability for consultancy services after 1 July 1994 as alleged or at all. He said that none of the various invoices which Mr Lunt claims to have submitted progressively for such services was ever sent, that he had never seen them until at an advanced stage in this litigation, and that they have all been falsely fabricated by Mr Lunt. He asserts that Mr Lunt has, over many years, repeatedly made false claims against him, Briggs, or WRS or associated companies. It is obvious that, despite the apparent civilities, the animosity between these two men is very deep seated and has existed, with fluctuating degrees of intensity, since around 1994 until the present. Each has inclinations, motives and interests to disparage the other.

19 In response to these allegations that the consultancy agreement dated 12 April 1991 was never entered into by WRS, and that the apparent signature of Mrs R Y Briggs and her initialling of the correction at page 1 are not genuine, Mr Lunt points to a series of significant occasions in the past where Mr Briggs, or those acting on his behalf, have acknowledged or affirmed, either expressly or by implication, the genuineness of the 12 April 1991 consultancy agreement and the existence of the consultancy engagement by WRS of Mr Lunt. These occasions include:

(a) reference to such a consultancy agreement in the audited accounts of WRS for 30 June 1991 (exhibit 18); 30 June 1992 (exhibit 21); the audited accounts for the year ended 30 June 1993 (exhibit 22); and the audited accounts for the year ended 30 June 1994 (exhibit 55);

(b) the consultancy agreement bearing date 12 April 1991 was tendered on behalf of WRS in proceedings between Mr Lunt and the company in the State Industrial Relations Commission (proceeding number 1827 and 1912 of 2000) and relied upon in a successful challenge to the jurisdiction of the commission on the grounds that the nature of the engagement by the company of Mr Lunt was as a consultant and not as an employee upon which the jurisdiction depended;

(c) evidence in District Court proceedings 1131 of 2000 in which the plaintiff's wife was advancing a claim for alleged wages from WRS in the course of which the agreement bearing date 12 April 1991 was produced, shown to the witness Mrs R Y Briggs, who agreed that it was a consultancy agreement between the company and Mr Lunt and appeared to bear her signature;

(d) evidence in this court in action number 2289 of 2000 between Mr Lunt as plaintiff and Mr Briggs as defendant in which Mr Lunt was seeking recovery of the alleged debt to 30 June 1994 of $517,900 from WRS but whose claim was dismissed on a summary judgment application by the defendant company on the grounds that the debt due under the consultancy agreement to Mr Lunt had been forgiven and discharged by Mr Lunt.

20 The plaintiff also contends that because the consultancy agreement bearing date 12 April 1991 had been discovered in these proceedings its authenticity is deemed to be admitted pursuant to RSC O 30 r 4 and that the same deemed admission applies to the extension letter of 11 June 1993 which had also been discovered. The plaintiff contends that such deemed admission is not restricted to these proceedings, in which the 'authenticity' of both documents was challenged on the pleadings, but also arises from the discovery of the consultancy agreement in the District Court proceedings in CIV 1131 of 2000 and in a different action in this court in CIV 1489 of 2001. However, I do not consider that the issue of authenticity can be disposed of upon this latter ground.

21 The controversy over whether or not the signatures appearing on the document of 12 April 1991 and the extension letter of 11 June 1993 are genuine signatures of Mrs R Y Briggs has resulted in expert evidence from specialists in handwriting analysis being called on each side. Their evidence will be examined more closely later but each was given access to some originals and copies of the documents containing the disputed signatures together with other documents thought to be authentic examples of signatures by Mrs R Y Briggs. There is some controversy over the genuineness of these specimens used for comparative purposes but that can be put aside for the time being. The opinion evidence from the three handwriting specialists is not absolutely conclusive but I am satisfied that there is a clear consensus that, of all the apparent signatures of Mrs Briggs which have been examined, it is possible to say that there are two typical forms of signature. One has been called the 'cursive' form of signature and the other the 'upright' signature, and that the two forms of signature are noticeably different. At this point the consensus breaks down because one of the experts is of the opinion that the two forms of signature could be no more than two distinct varieties of signature used by the one person - a phenomenon not entirely uncommon in handwriting - whereas one other handwriting specialist is of the view that the probabilities are that the different forms of signature were used by two different people, one attempting, for whatever reason, to replicate the signature of Mrs Briggs.

22 A further complication is the question of whether or not, at material times, Mr Briggs occasionally signed documents in his wife's name, on her behalf, not as an attorney or as a per pro signatory but by signing her name in circumstances where it is to be supposed that he had her authority to do so or that she would ratify his action. The probabilities of this occurring are greater during the period when Mr Briggs was disqualified from acting as a director. When his wife was director of companies in his stead, he was still very greatly involved and was the directing mind and principal decision maker in the transactions then being conducted. Mr Briggs acknowledged that occasionally he might have signed his wife's name on documents or correspondence but denied that he did so in relation to any of these disputed documents in this case.

23 For reasons which will appear the probabilities are very much against the consultancy agreement bearing date 12 April 1991 relied upon by the plaintiff being executed, in his presence at the Briggs' home in the presence of Mr and Mrs Briggs on that date, as Mr Lunt so steadfastly maintained. The degree of detail which he gave in relation to the circumstances of that alleged execution, notwithstanding his later acknowledgement that the document may have been executed later, significantly undermines his credibility at least on that issue.

24 By now it should be obvious that the determination of the issues arising in this litigation and of the plaintiff's claims must depend, to a very great degree, upon issues of credibility and, indeed, the credit of a number of witnesses, not only Mr Lunt and Mr Peter Briggs. Unfortunately, I have been left in the position where I have very little confidence in the credit of several of the witnesses, so much so that the search for reliable testimony and facts which can be accepted as being correct or probable has been difficult. I am satisfied that a number of witnesses have given evidence which I cannot accept at all. The fact that this has occurred and that untenable versions of events have been paraded by certain witnesses are themselves factors in determining what conclusions can be drawn to the requisite degree of proof.

25 Many of the witnesses who gave evidence at this trial have had previous associations, and some still have continuing associations, with the parties. Those with the least connections and with no continuing connections, are the two former directors of Max Resources, Mr Robert Ivan Owen Shane and Mr Thomas William Johnson, both of whom I accept to be completely honest, independent and reliable witnesses. Their independence and reliability was challenged on behalf of the defendants by Mr Briggs, Mr Verheggen and by Mr M J Langoulant, but I do not accept any of those three as being reliable or completely frank and, in critical areas, I do not accept their testimony.

26 Other witnesses, some removed from the principal contestants, were Mr M Bowen who, at material times, had been the solicitor at Robinson Cox handling Mr Briggs' affairs, and Mr Kevin Bond, an accountant who, at material times, had been the secretary or co-director of WRS with Mr Lunt. Neither Mr Bowen nor Mr Bond was directly aware of some of the critical episodes which are in controversy but each was aware of material background which places the critical contested issues of fact in context and allows certain basic facts to be established from which guidance can be taken when it comes to issues in sharper controversy.

27 I have already indicated that, in a number of material respects, portions of Mr Lunt's evidence must be regarded as unreliable and I formed the impression that he was not averse to attempting to improve his case by filling in gaps or creating explanations where uncertainties existed. Accordingly, in relation to his evidence, I consider that I should act upon it only where the facts are clearly established or where there is corroboration by direct testimony or inference from other evidence.

28 When it comes to the evidence of Mr Peter Briggs, I am afraid I am obliged to say that he was simply not credible and that there were many occasions in the course of his evidence-in-chief, and in cross-examination, where it was apparent that no reliance could be placed on his testimony. This is why the search for reliable evidence is all the more important.

29 Because of the obscurity caused by the conflicting versions of events and having regard to the dubious reliability of the evidence of the principal parties, Mr Lunt and Mr Briggs, I consider that the surest way to a determination of the issues in this case is to address the following major issues of fact before moving on to the more detailed contentions of the parties. These are what I regard as keystone issues. They are:

(1) whether there was ever any agreement between Mr Lunt and WRS for the former to be paid consultancy fees at designated rates for his work in the promotion of the new technology;

(2) whether the accounting records showing an accumulation of outstanding fees due by WRS as a debt to Mr Lunt in various financial accounts up to and including 30 June 1994 were approved by the company and came to the notice of Mr Briggs before mid-1995;

(3) whether Mr Briggs requested Mr Lunt to remove the outstanding liability of WRS to him, Lunt, from the balance sheet of the company as at 30 June 1994 in order to facilitate anticipated or actual negotiations with the representatives of Max Resources for the sale of the enterprise to that company;

(4) whether Mr Lunt continued to be engaged as a consultant by WRS after 30 June 1994 on the same terms;

(5) whether Mr Briggs and the other defendant have conducted themselves on past occasions on the basis that they have accepted the authenticity of the consultancy agreement bearing date 12 April 1991.

30 If some of those questions are answered positively then that would provide substantial, but not complete, confirmation of the plaintiff's cases and would go a long way to confirming the fundamental details of Mr Lunt's evidence. If, on the other hand, any of those were to be answered negatively that would greatly impair the reliability of the plaintiff's case and while, perhaps not confirming the details of the defendants' cases, would cast sufficient doubt on the plaintiff's claims to make them unacceptable as a matter of probability. It is with those issues in mind, therefore, that I now turn to the evidence.

31 Max Resources was a New Zealand company listed on the Auckland Stock Exchange but which conducted business in Western Australia. Its principal shareholders and directors were Mr J J Verheggen and Mr M J Langoulant, who were both Australians. They had the major executive role in managing and operating Max Resources. However, because it was listed on the New Zealand Stock Exchange it was necessary for Max Resources to have at least two New Zealand based directors and so Messrs McShane and Johnson were chosen and appointed as the New Zealand based directors. They had only a very small shareholding in Max Resources but, I am satisfied, regarded their roles as directors of the company as important and requiring assiduous and scrupulous attention to its affairs. Regrettably, there can be no doubt that Messrs Verheggen and Langoulant saw their two New Zealand colleagues as little more than puppets who were not expected to exercise any deliberative role in the operations of the company or to do anything more than acquiesce in the decisions which they took themselves about its operations. I am satisfied that neither Mr McShane nor Mr Johnson realised this at the critical time and only learned, to their dismay, much later that their roles were given so little recognition.

32 In late 1996 and early 1997 there was a proposal for WRS's businesses, indeed, its entire enterprise, to be taken over by Max Resources either by Max Resources taking over the shares in WRS or by purchasing its assets. While this proposal was under consideration Messrs McShane and Johnson came several times to Perth to meet with Mr Briggs, other representatives or agents of WRS and, in their words, to be part of the 'due diligence' involved in the proposed acquisition of WRS's business by Max Resources. There were three visits by these New Zealand directors, which are of significance. Only one came on one of the visits but both came on the others. During those visits they had various conversations with Mr Briggs about the affairs of WRS and its balance sheet, and these touched on the position of Mr Lunt.

33 Mr McShane was born in New Zealand in 1941 and has had a major career in urban economics, planning and marketing involving senior consultancy positions to local government and government institutions. He had developed a special expertise in biological technologies and had worked in the public and private sector in Singapore, Hong Kong, and then had been involved in a number of technology businesses in North America, Europe and in Asia. In recent years he has been a self-employed business consultant in New Zealand. He joined the board of Max Resources in 1996 at the invitation of Messers Verheggen and Langoulant.

34 Another prominent New Zealand citizen, Mr Thomas Johnson, was also invited to join the board at the same time, so that in early 1997 Max had four directors, namely, Messrs Verheggen, Langoulant, Johnson and McShane. Messrs McShane and Johnson were appointed to participate in the investigation of the acquisition by Max Resources of the Western Australian company, WRS, which was introduced by Mr Verheggen, who had a business connection with Mr Peter Briggs, the controlling shareholder of WRS. Initially at least, Messrs McShane and Johnson were told that the proposal was that Max Resources should purchase the shares in WRS from the existing shareholders and then take control of its assets, all of which were involved in technology franchises for the development of organic fertiliser, together with an interest in a fertiliser manufacturing plant then under construction in France, together with some other assets in Asia.

35 Both Messrs Langoulant and Verheggen had been associated with Mr Briggs in the past and, according to Mr McShane, they agreed that he and Mr Johnson should perform the due diligence as members of the company's audit committee. In the result, Messrs McShane and Johnson travelled to Perth on several occasions between January and April in 1997, each time staying at the Sheraton Hotel in Perth. According to Mr McShane, on their first visit they were concerned about the vagueness of Mr Briggs concerning the assets and liabilities of WRS because Mr Briggs claimed that the company owed him about $1 million. On reporting this to Messrs Verheggen and Langoulant a second visit to Perth was arranged for the specific purpose of ascertaining the exact position in relation to the assets and liabilities of WRS.

36 During this second visit Mr Briggs said that the liabilities of WRS primarily comprised a loan outstanding to one of his related companies in an amount of about $1 million. Mr McShane had been told earlier by Messrs Verheggen and Langoulant that WRS had other liabilities to employees Lunt and Skidmore. According to Mr McShane, he and Johnson raised this matter specifically with Mr Briggs, who told them that WRS had in 1995 and 1996 reduced its indebtedness to Mr Lunt and that the balance of consultancy entitlements due to Lunt as at 30 June 1994 had been forgiven upon Mr Briggs assuming personal responsibility for them. Amounts due after 1 July 1994 remained with WRS but Mr McShane was unable to recollect the amount.

37 Mr McShane said that Mr Briggs provided him and Mr Johnson with copies of documents showing the amounts which had been due to Messrs Lunt and Skidmore and confirming that he, Briggs, had resumed responsibility for the pre-June 1994 debts. They sought further documents from Mr Briggs to confirm the position and he met them the following day at the Sheraton Hotel and gave them further documents which Mr Briggs stated confirmed the position as he had explained it. According to Mr McShane, Briggs had explained to him and to Mr Johnson that Messrs Lunt and Skidmore had both required an indemnity in respect of the debts due to them under their consultancy agreements before they would release WRS and that he, Mr Briggs, had agreed to such an indemnity. Messrs McShane and Johnson also contacted Mr Lunt by telephone when they were in Perth to seek confirmation of the advice given by Mr Briggs. According to Mr McShane, Mr Lunt confirmed the position just outlined but explained that there were further consultancy fees due to him and to Mr Skidmore. Neither Mr Johnson nor Mr McShane met with Mr Lunt on their visits to Perth but they did meet with him in New Zealand in May 1997 at the time when the resolution by Max Resources to acquire the assets of WRS was passed and Lunt then gave them further confirmation to the same effect.

38 According to Mr McShane, he and Johnson were concerned about the unsatisfactory debt position of WRS and for that reason were not disposed to proceed with the takeover of WRS as originally proposed by Mr Briggs, which would involve Max Resources assuming all the liabilities of the company. Instead they recommended that Max Resources should simply purchase the assets of WRS and enter into employment or consultancy agreements with its personnel rather than assume its liabilities. That is what eventually occurred. That acquisition was effected by an agreement between Max Resources and WRS made in May 1997 and prepared by Max Resource's solicitors in Perth, Messrs Robinson Cox. The consideration for the acquisition of the assets as agreed was the allocation of shares in Max Resources to WRS.

39 It turned out that interests associated with Mr Briggs had acquired major shareholdings in Max Resources without that becoming known by Messrs McShane or Johnson so that, shortly after the takeover the control of Max passed to Mr Briggs' interests. Mr Briggs became a director and shortly afterwards Messrs Johnson and McShane were removed or resigned as directors. More trouble for Max Resources followed. Mr Lunt, who had been employed by Max Resources, was discharged, allegedly for improper conduct, although Mr McShane said that he did not agree with Mr Lunt's dismissal. Some time afterwards Max Resources collapsed, leaving a significant financial scandal which was the subject of regulatory and police investigations in New Zealand and Australia, leading to the records which Mr McShane or Mr Johnson had being passed on to the authorities and no longer being accessible to them. Among these were many of the documents which Mr McShane said were given to him or to Mr Johnson by Mr Briggs at the meetings at the Sheraton Hotel which I have described.

40 It is obvious that the subsequent collapse of Max Resources and the investigations by the regulatory authorities were a severe shock to Mr McShane and an embarrassment to him. It is equally clear that he does not hold either Messrs Verheggen or Langoulant in high respect, nor does he have a high regard for Mr Briggs. Nevertheless, all that was many years ago and Mr Johnson asserts, and I accept, that he regards all those events as bad experiences from the past which no longer are of concern to him. My impressions of Mr McShane, when giving evidence, were that he was very particular and careful in the testimony which he was giving, was at pains to be correct, was a very well educated and fastidious person, with a sense of obligation and propriety which was obviously the product of many years of responsible senior professional work. I regarded him as balanced, unaligned and independent. He was cross-examined on the basis that his memory was unreliable and had been affected by the serious cardiac disease which he experienced in 2007 and that he was personally hostile towards Mr Briggs. He disclaimed any hostility, although he maintained that he had a legitimate grievance against Mr Briggs because of the way Max Resources was run from 1997 onwards. It was suggested to him that it was not he and Mr Johnson who were charged with the due diligence but that Messrs Verheggen and Langoulant were also involved. He accepted that, in relation to other activities of WRS, for the due diligence, there was an involvement by Verheggen and Langoulant. His principal obligation was to look at the intellectual property. He was unswerving in his insistence that the first proposal by the Briggs' interests was for Max Resources to buy the entire company, by acquiring all its shares, and that it was only later that Max Resources decided to buy the assets instead. I am satisfied that there is no reason to doubt or to question the evidence of Mr McShane and I accept it.

41 Mr Johnson also gave evidence. He was born on 22 September 1938 in New Zealand and at the time of the trial was a senior lecturer in business studies at the Eastern Institute of Technology at Hawke's Bay in New Zealand. He holds the degrees of Master of Business Administration, a Masters degree in management, a Diploma in Business Sport and Recreation, and a Diploma in Business Marketing. Over a 30-year career in senior management he had held a number of positions including that as a director of Max Resources from 1996 to 1998.

42 Mr Johnson and Mr McShane were members of the audit committee of Max Resources and were given the role of investigating the proposed acquisition by Max Resources of WRS Pacific Ltd in early 1997. This was a proposal which had been put forward by Mr Verheggen who, together with Mr Langoulant, informed him that they had been approached in January 1997 by Mr Peter Briggs with the proposition that Max Resources should acquire WRS by purchasing all the shares in that company. Mr Johnson and Mr McShane were asked to visit Perth and to meet Mr Briggs in order to carry out due diligence on his proposal. He visited Perth with Mr McShane on several occasions between January and April 1997 for this purpose, also staying at the Sheraton Hotel on each visit. There they met Mr Briggs, who gave them information about WRS and, in particular, its internal liabilities. According to Mr Johnson, Mr Briggs told them that the major liability was a debt of about $1 million to himself and to employees Messrs Lunt and Skidmore, the latter debts arising through employment contracts. He was told that Mr Lunt was owed about $1 million and Skidmore about $750,000 (which from other evidence I think should be regarded as a mistaken reference to $75,000) before part of their debt was forgiven upon Mr Briggs taking responsibility to pay the forgiven sum.

43 According to Mr Johnson, he came to Perth in connection with the WRS acquisition two or three times in all and that Mr McShane came once alone.

44 According to Mr Johnson, Mr Briggs told him and Mr McShane that Messrs Lunt and Skidmore had agreed to remove their debts as accrued to 30 June 1994 from the company balance sheet upon Mr Briggs taking personal responsibility for payments of the sums removed. Mr Johnson said that he and Mr McShane asked for documents to satisfy the debt position, especially the large amounts due to Messrs Lunt and Skidmore, but that these were not immediately forthcoming.

45 After that visit Mr Johnson and Mr McShane reported their concerns about these liabilities to Messrs Verheggen and Langoulant and a subsequent visit to Perth was arranged for the express purpose of inquiring into the full extent of the company's liabilities.

46 According to Mr Johnson, on this second visit he and McShane were told by Mr Briggs that WRS had in 1995 reduced its indebtedness to Mr Lunt by a payment of $20,000 and that his consultancy agreements had been reduced in 1996 by a further significant amount which he could not recall.

47 According to Mr Johnson, Mr Briggs told him and Mr McShane that the amounts due by WRS to Messrs Lunt and Skidmore at 30 June 1994 had been forgiven upon Mr Briggs assuming personal responsibility to pay them and that Mr Briggs acknowledged that the company had made payments to Messrs Lunt and Skidmore in 1996 to reduce the sums owing. Nevertheless, according to Mr Lunt, there was still a liability for services provided to the company from 1 July 1994 to 30 December 1996. In Mr Skidmore's case the liability of the company to him for moneys due up to 30 June 1994 had been taken over by another Briggs company but for services the provided by both Mr Lunt and Mr Skidmore from 1 July 1994 to 13 December 1996 the liability of WRS for payment remained.

48 Furthermore, according to Mr Johnson, Mr Briggs told him and Mr McShane that Mr Lunt had required an indemnity from Mr Briggs for the amount owing to him as at 30 June 1994 before he released WRS from its debt and this had been given. A similar arrangement had been made by Mr Skidmore but his debt was taken over by one of Mr Briggs' companies rather than by Mr Briggs personally.

49 According to Mr Johnson, he and Mr McShane told Mr Briggs that they would need to see documents confirming his statements that the debts due to Messrs Lunt and Skidmore as at 30 June 1994 had been forgiven and taken over by Mr Briggs or by his company and to see the documents relating to moneys due under the consultancy agreements from 1 July 1994 onwards.

50 Mr Johnson was most specific in stating that this information was later delivered to him by Mr Briggs in the foyer of the Sheraton Hotel and included:

a copy of a release by Mr Lunt to WRS Pacific Ltd (exhibit 103)
a copy of a debt novation by Mr Briggs (exhibit 104 and a copy of exhibit 34)
a copy of a debt novation agreement by Essex Properties Pty Ltd relating to the Skidmore indebtedness (exhibit 105)

51 During this visit to Perth Mr Johnson says that he and McShane also contacted the auditor for WRS, Mr John Cooke, who confirmed to them the information provided by Mr Briggs that Messrs Lunt and Skidmore had removed part of their debts in return for Mr Briggs agreeing to pay the sums removed. This, of course, is not evidence by or on behalf of Mr Briggs but Mr Cooke was the auditor of WRS authorised to speak to these gentlemen about the company's affairs for the purpose of the planned takeover or acquisition and I consider, therefore, that his statements in this regard can be accepted as statements or admissions on behalf of the company, WRS. In these negotiations, the company and Mr Briggs were presenting a united front in the provision of information and details to the New Zealand directors of Max Resources.

52 Mr Johnson says that he kept the documents which had been given to him by Mr Briggs and much other Max Resources material which he had acquired and delivered it to his solicitors in Hastings, New Zealand. Because of the investigation conducted into the affairs of Max Resources by the New Zealand Securities Commission and the Australian Securities Commission he no longer had all the documents. Mr Johnson also stated that because of the substantial liabilities which WRS had, primarily to Messrs Lunt and Skidmore, he and Mr McShane recommended to the board of Max Resources that the company should not proceed with the takeover of WRS by acquiring its shares but that it should, instead, proceed by purchasing the assets and that is what eventuated.

53 From his cross-examination it became apparent that Mr Johnson also had a low opinion of Messrs Verheggen and Langoulant and had made a statement to the investigating authorities in relation to proceedings in Australia which were later commenced against Messrs Verheggen and Langoulant but which resulted in their acquittal. Neither he nor Mr McShane gave evidence in those proceedings. It was evident that Mr Johnson also had a low opinion of Mr Verheggen's veracity and of his role in the conduct of Max Resources in New Zealand after the acquisition in May 1997. He said that he ceased to be a director of Max Resources at the end of 1997 as a result of problems which had arisen after the acquisition.

54 I regarded Mr Johnson as a very careful, precise and experienced businessman of a traditional and conservative disposition who gave evidence in a plain and straightforward manner. He was a sophisticated and intelligent businessman who was, in my opinion, utterly truthful.

55 I accept the evidence of Messrs McShane and Johnson and reject the conflicting evidence of Messrs Verheggen, Langoulant and Briggs concerning the vital points of the visits of these gentlemen to Perth in early 1997. In particular, I accept that Messrs McShane and Johnson regarded themselves as being responsible to investigate the financial position of WRS, and in particular its liabilities, in order to advise the board of Max Resources as to whether or not it should entertain the Briggs' proposal for a sale of shares in WRS to Max Resources.

56 I reject the testimony of Messrs Verheggen and Johnson that there was never a proposal for the acquisition to take place in the form of a purchase of the shares of WRS by Max Resources and that the only proposal ever advanced or considered was a straight acquisition by purchase of the assets of WRS. Mr Briggs ventured the same version of events at first but acknowledged in cross-examination that there had, at a very early stage, been a proposal for the sale of all the shares in WRS to Max Resources.

57 I also accept the evidence of Messrs McShane and Johnson that in discussions with them during these visits Mr Briggs revealed that WRS had been indebted to Messrs Lunt and Skidmore in significant amounts for consultancy fees but that that indebtedness, to the extent that it had accrued to 30 June 1994, had been discharged upon Mr Briggs personally taking over the Lunt debt and, in Mr Skidmore's case, the debt being taken over by an associated Briggs company. I accept their evidence that further debt was due to both those men for services rendered after 1 June 1994. There would have been no point in Mr Johnson demanding and receiving a copy of the Lunt letter of forgiveness (exhibit 34) or discussing the position with the auditor, Mr Cooke, unless he had reason to be concerned about such a potential liability.

58 It follows from this that I accept that, at June 1994, there had been a significant outstanding liability for fees due by WRS to Mr Lunt and, for some reason not disclosed to these gentlemen, that debt was forgiven by Mr Lunt in exchange for it being taken over by Mr Briggs personally and, further, that the company continued to be indebted to Mr Lunt for services provided by him after 1 June 1994 in some unspecified but large amount. This evidence also amounts to an admission by Mr Briggs to the New Zealand directors of Max Resources that debts by WRS to Messrs Lunt and Skidmore were recognised by the company in its balance sheet at 30 June 1994.

59 Mr John Cooke, a chartered accountant and auditor, gave evidence for the defendants. He had done work for many of Mr Briggs' companies from 1992 onwards to the present but no longer does audit work for Mr Briggs' interests. He said that he had no recollection of any meeting with any gentleman from New Zealand in early 1997 or at all and has no record of any bill being raised for any consultation with such persons. He said that it was possible that he might have met with the men from New Zealand but that if the meeting had lasted longer than five or 10 minutes it would have been noted and billed and that there is no such entry.

60 In his first witness statement (exhibit 137A) Mr Cooke said that his firm had been engaged by WRS from about 1990 to 1995 to carry out the audits for its annual financial statements and that it audited each of the statements for the financial years from 1990 through to June 1994. However, Somes & Cooke did not complete the 1995 audit as they were not provided with sufficient information. He confirmed that, on his audit file, he had a copy of the letter from Mr Lunt dated 23 June 1995 addressed to the directors of the defendant and signed by Messrs Lunt and Bond. This had been obtained as part of the audit work for the 1994 financial statements. It is Mr Lunt's letter waiving any obligation and forgiving the debt by WRS for fees due to him accrued to 30 June 1994. Mr Cooke had no record nor any recollection of discussing the purpose or significance of this letter with Mr Briggs. In his supplementary statement (exhibit 137B) Mr Cooke said that it was likely that he would have had some conversation with Mr Lunt about this waiver letter in order to satisfy his duty as auditor although he had no specific recollection of this. He said he would not have been concerned with any alleged guarantee given by Mr Briggs to be answerable for that debt because that would not be a matter which concerned WRL or his audit and because he was not acting as a personal accountant to either Mr Briggs or to Mr Lunt. He confirmed that the release was only effective for the period up to 30 June 1994. In giving his oral evidence Mr Cooke recalled actually speaking to Mr Lunt about the waiver and warning him that once the debt was waived it could not be reclaimed. In cross-examination Mr Cooke confirmed that in the financial accounts for WRS for the year ended 1993 there was reference to the existence of consultancy agreements with Messrs Lunt and Skidmore providing for payments based on normal commercial terms and that in the financial accounts for the year ended 30 June 1994 there was an adjustment of $652,900 to reduce the debt due to Mr Lunt following his waiver.

61 Despite Mr Cooke's lack of any recollection of meeting directors of Max Resources from New Zealand, I consider that the account of that contact given by Mr Johnson is accurate. There are other aspects of Mr Cooke's evidence to which it will be necessary to return but it is significant that he confirmed that in the audited accounts for WRS for the year ended 30 June 1993 there was a large debt shown as owing to Mr Lunt for consultancy fees, and that in the notes for those accounts there was reference to the existence of consultancy agreements between Messrs Lunt and Skidmore respectively and the company for remuneration on commercial terms. Mr Cooke also confirmed that he had obtained a copy of the Lunt waiver letter (exhibit 35, 23 June 1995) for the purposes of completing the 1994 audit and this was obviously to confirm the basis for eliminating the liability of $652,900 previously recorded as due to Mr Lunt from the 30 June 1994 balance sheet of the company.

62 There are other references to Mr Lunt being entitled to receive benefits under a consultancy contract with WRS in various sets of accounts. There is one such reference at page 3 of the WRS accounts for the year ended 30 June 1991 (exhibit 18 page 186 and at 198 and at 200). In exhibit 21, which contains the financial statements for WRS for the year ended 30 June 1992 there are similar acknowledgements of a consultancy agreement with Mr Lunt (pages 218, 229 and 230). Both sets of accounts were audited by Mr Cooke, who expressed an auditor's qualified opinion but not relating to the existence of consultancy agreements. The company's accounts for the year ended 30 June 1993 are found in exhibit 22 and these too referred to an entitlement by Mr Lunt to receive fees pursuant to a consultancy agreement (page 245, 257, 259). In a set of accounts for WRS as at 30 June 1994 forwarded by Mr Kevin Bond (exhibit 27) there is a schedule (page 273) which shows that the amount of consulting fees then outstanding to Mr Skidmore was $39,700 and the corresponding amount due to Mr Lunt was $652,900.

63 The audited accounts of WRS for 30 June 1994 are exhibit 55. These refer to Mr Lunt receiving or becoming entitled to receive fees pursuant to a consultancy agreement (334) but at page 344 the amount shown as owing to Mr Lunt for 30 June 1994 is nil in contrast to the amount owing of 30 June 1993 being $326,480. These same accounts show a nil balance for consultancy fees due to Mr Skidmore of at June 1994 but an outstanding balance of $75,000 is shown as due to him at 30 June 1993.

64 Exhibit 32 is a letter from Mr Skidmore to Mr Briggs, care of Essex Properties Pty Ltd referring to an agreement by him and Mr Lunt to remove their debts from the balance sheet on the understanding that Mr Briggs assumed personal responsibility for the debts and Mr Skidmore demanding payment of $50,000 as the compromised figure then agreed to be payable to him by Essex Properties Pty Ltd.

65 Despite the removal of the liability of the company to pay consultancy fees to Mr Lunt to 30 June 1994, the company's 1994 accounts still show (page 347) the existence of consultancy agreements with Messrs Lunt and Skidmore for the provision of consultancy services to the company on normal commercial terms. Note 17 to those same accounts (page 350) refers to those consultancy agreements under the heading 'Commitments' and shows a total amount of $135,890 expected to fall due within the next two years. Those accounts were also audited by Mr Cooke. The directors' report for the year ended 30 June 1995 of WRS (exhibit 63) also contains a reference to Mr Lunt becoming entitled to receive consultancy fees (page 412). In the draft accounts for the year ended 30 June 1995, accompanying that statement (page 419) there is shown the amount of $199,646 being outstanding to Mr Lunt for consultancy fees. It was the 1995 accounts which were submitted to Mr Cooke for audit but not completed for lack of the provision of adequate information.

66 Consequently, there is unequivocal documentary acknowledgement by the company in its annual returns and accounts for each of the years ended 30 June 1991 to 30 June 1994, and again in the draft unaudited accounts for the year ended 30 June 1995, that there were consultancy agreements in existence between the company and Mr Lunt and Mr Skidmore and that the balance due to Mr Lunt at 30 June 1994, before the subsequent adjustment and waiver, was the amount of $652,900, as Mr Lunt has alleged. Those accounts were prepared and lodged under statutory obligations by the directors and officers of the company and were part of the public record with ASIC. They are, therefore, to be taken, at least prima facie, as accurate records of the company's position in relation to the matters stated. These accounts were prepared by the company's accountants, approved by directors and audited.

67 Mr Briggs seeks to deny the accuracy of the acknowledgement of a consultancy agreement with Mr Lunt and of the amounts recorded as being owing to Mr Lunt for such services on the grounds that it was he, Mr Lunt, who gave instructions for the preparations of those accounts, that he misled Mr Bond, the secretary and accountant, in that regard, and that these false entries escaped recognition or attention until he, Briggs, insisted upon their correction after confronting Mr Lunt about them in 1995. There is much evidence to suggest that Mr Briggs did not pay close attention to the details of the financial statements of companies in which he was involved and took a 'broad view' of his financial interests, leaving such matters to his accountants and advisers. Nevertheless, it is straining credulity beyond its limits to accept that false statements of the kind alleged would have gone unrecognised for four years or more and would then have been corrected without disciplinary or other action being taken against the transgressor and with the continuing commercial relationship being maintained with him. These accounts are, therefore, in my opinion, objective and reliable evidence that a consultancy arrangement existed between the company and Mr Lunt for payment of services and that the accumulated liability to 30 June 1994 for those services was $652,900 and that, although that amount was adjusted out of the accounts at that date, it was acknowledged that a commitment existed for a continuing accruing liability for the 1995 and following years. Just how that consultancy agreement was established and what were its terms does not appear from these accounts.

68 This idea of adjusting the accounts to move from the balance sheet as at 30 June 1994 the amounts shown owing to Messrs Lunt and Skidmore has a number of unexplained side effects which were not pursued by the parties at the trial. The amounts of those loans, $326,480 for Mr Lunt, and $75,000 for Mr Skidmore for the 1993 year were identified in Note 8 to the financial statements (exhibit 55, page 343) and were part of the total amount of creditors and borrowings shown in the balance sheet at page 337 being $325,000 for the 1993 year and $1,173,734 for the 1994 year (which did not include these consultancy liabilities). However, there was no suggestion that the reduction of liabilities resulting from the removal of those loans was accompanied by any other adjustment to the 1994 or earlier accounts. Presumably the consultancy fees paid progressively over previous years to Messrs Lunt and Skidmore were treated as expenditure or were brought to account in some other way so that their removal would have necessitated adjustment to the earlier accounts. The only item which I have been able to see, without the assistance of counsel, which may represent such an adjustment is an amount of $366,180 for development costs in prior years written back contained in the abnormal items under a note for operating loss at page 342 but that figure does not readily reconcile with the amount of the liabilities that were 'removed'.

69 What this does show is that up until 1994, indeed until later so far as reliance can be placed on the unaudited draft accounts for 30 June 1995, there was no revenue to speak of for WRS and that it was funded by loans or capital contributions from Mr Briggs and much of the expenditure, for consultancy fees and other outgoings, seems to have been capitalised under the asset 'Intangibles' (see note 7 on page 343 of exhibit 55) and so accumulated. Presumably this was done on the basis that once the project moved to the production and income producing stage those accumulated expenses could be written off or depreciated against income. All this is rather unsatisfactory when it comes to determining the reliance to be placed on the annual financial accounts and their significance to the shareholders and directors. It does reveal that the company was entirely dependent upon funding from external sources or loans for its operations and that the sources of these funds, principally Mr Briggs or other companies in his group, had no immediate concern about income. Mr Briggs or his companies were not in a position, or perhaps were not willing, to discharge these operating expenditures regularly possibly in anticipation that payment would have to be deferred until there was an adequate income stream.

70 This may account for Mr Briggs rather blasé attitude towards payment of Mr Lunt's expenses and claims for consultancy fees and his attitude that any question of payment would need to be deferred until the company was in a production phase or it could be sold to or taken over by some other enterprise. His attitude that Mr Lunt would need to wait until the project had reached that phase before having any hope for payment explains some of his conduct and evidence including his dismissive attitude towards Mr Lunt's repeated claims for money and pleas of financial embarrassment. What it does not explain, however, is the recognition by the accounts that a progressive liability existed and was accumulating. Whatever Mr Briggs' attitude may have been as to when and how that payment would ultimately be discharged does not overcome the fact that it was being recorded and acknowledged by the company in the accounts as an existing and growing liability from year to year.

71 Another witness whom I regard to be independent, truthful and reliable is Mr Kevin Bond. Mr Bond is by profession an accountant and is a graduate in commerce from the University of Western Australia. He was a partner in the firm of chartered accountants, Messrs Barrington Partners of Perth from March 1986 until November 1993 after which he practised on his own account. Mr Lunt had been a client of Barrington Partners and Mr Bond became involved in attending to his accounting affairs from before 1990. He became aware that Mr Lunt was involved in negotiations with Pacific Platinum NL (Pacific) concerning the sale of a proportion of Mr Lunt's interests in a fertiliser business. That led to an agreement of sale between Mr Lunt's company and Pacific on 21 May 1991 which he executed as company secretary of Baywill Pty Ltd. Under this sale agreement Pacific was to execute a consultancy agreement with Mr Skidmore a draft of which was attached. Such a consultancy agreement between the company and Mr Skidmore was executed and is dated 22 April 1991 (exhibit 11) However, the sale agreement did not refer to any consultancy agreement between Pacific and Mr Lunt although Mr Bond's notes of the meeting which he attended on 3 October 1991 record that it was then discussed that a consultancy agreement for Mr Lunt was then being prepared by Pacific's solicitors.

72 Mr Bond suggested that the preparation of such a consultancy agreement may not have been a high priority because Mr Lunt was then employed by WRS which was then being taken over by Pacific under the agreement of 22 May 1991. Mr Bond was then appointed as secretary to Pacific and as an alternate director for Mr Skidmore on 27 June 1991 and later, in June 1992 was appointed as a full director of Pacific. He continued to hold these offices until November 1996 when he resigned because of non-payment of outstanding fees and his concern that the annual return for Pacific for the year ended 30 June 1995 had not been lodged with the ASIC.

73 Mr Bond made further notes at a meeting on 13 March 1992 which he attended with Mr Lunt and Mr Edmund Czechowski that the topic of the consultancy agreement with Mr Lunt was raised but deferred to a later meeting. According to Mr Bond's notes of a later meeting of directors of 22 May 1992 (exhibit 123) a consultancy agreement between Pacific and Mr Lunt was signed with a commencement date of 1 April 1991. These notes record that Mr Czechowski objected to signing the document because the start date was unclear and accordingly the document was altered to show a start date in April 1991 rather than April 1990 as originally proposed.

74 Mr Bond cannot recall the occasion when the consultancy agreement was signed but he notes that the common seal of WRS (Pacific) was affixed and witnessed by Mrs Robin Briggs as a director of Pacific and by himself as secretary. Exhibit 123 contains a note made by Mr Bond on Friday, 22 May 1992 which reads as follows:

WRS Pacific - 10 - 25

* Consultancy agreement WL signed on 1/4/92 and EC objected to signing as start date is uncertain. Start date amended to 1/4/91.

75 Pacific changed its status and name to WRS Pacific Ltd in 1991.

76 The note of the second meeting with Mr Czechlowski suggests that the consultancy agreement may not have been executed ('signed') until about 22 May 1992 rather than on 24 March 1992 as recorded in the seal register (exhibit 129). That is a possibility but still points to a conclusion that the document was executed in or about the period March to May 1992.

77 Mr Bond went on to say that in conjunction with the other directors he prepared financial statements for the company for the year ended 30 June 1991, 1992, 1993 and 1994 which were all audited by Messrs Somes and Cooke and signed by the audit partner Mr Cooke. Each of these statements referred to the existence of consultancy agreements between the company and Messrs Lunt and Skidmore.

78 Mr Bond also maintained the general ledger from WRS from 1991 until his resignation in late 1996. This recorded the value of the consultancy fees payable to Mr Lunt together with his expenses. He obtained from Mr Czechowski details of the amounts which had been paid on behalf of the company by Mr Briggs or his associated companies and all were entered into the general ledger and the balances due to the Briggs' companies were checked with Mr Czechowski. According to Mr Bond, Mr Czechowski confirmed the balances direct to Somes and Cooke as part of the annual audits.

79 Mr Bond had no specific recollection of signing a document to extend Mr Lunt's consultancy agreement (exhibit 58) which is a letter on the letterhead of WRS Pacific Ltd addressed to Mr Lunt saying:

'Dear Mr Lunt,

The Directors are pleased to advise that your Consultancy Agreement with WRS Pacific Ltd is renewed and extended for a further four years to June 30, 1997.

Your contract with the company is renewed on the same terms and conditions as detailed in your existing Consultancy Agreement dated April 12 1990.

Please accept our thanks for a job very well done and the excellent advances and achievements you have obtained for the company are appreciated.

Yours faithfully

Signature

K Bond

Director/Secretary Signature

R Y Briggs Director

June 11 1993'

80 However, he acknowledged that it appeared to be his signature on the letter and that the accompanying signature appeared to be that of Mrs Briggs. He went on to explain that the audited financial statements for WRS for 30 June 1994 did disclose that Mr Lunt continued to have a consultancy agreement as did the draft financial statements for the year ended 30 June 1995.

81 Mr Bond said that while he could not specifically recall the details of discussions he thought that it was Mr Briggs who raised the proposal to remove the balance shown as debts due to Messrs Lunt and Skidmore for consultancy fees and to have those debts waived. He said that Messrs Skidmore and Lunt only agreed to the waiver of the debts when satisfied that Mr Briggs or an associated entity had agreed to take responsibility for them. It was he who drafted note 14 to the accounts of 30 June 1994 which recorded that the amount for consultancy fees due to Messrs Lunt and Skidmore had been waived.

82 The letter by which Lunt waived the consultancy fees due to 30 June 1994 itself dated 23 June 1995 (exhibit 35) was signed by Mr Bond as a witness. His recollection was that the terms of the letter were drafted by a solicitor, Mr Steven Pynt. He did not recall signing the document but he accepts that the signature must be his.

83 Similarly, Mr Bond is unable to recall the details of how the letter of indemnity by Mr Briggs dated 20 June 1995 (exhibit 34) came to be prepared nor could he specifically recall witnessing the signature of Mr Peter Briggs on the document. However, he accepts that his signature does appear on the document.

84 Mr Bond confirmed that in the management accounts for the company to 30 June 1994 which he prepared, before the consultancy debts were waived, the amount shown due to Mr Lunt was $652,900 was made up as follows:

85 His worksheet showing the calculation of the amount of fees as at 30 June 1994 is exhibit 125. Once Mr Lunt had signed the waiver of debt (exhibit 35) Mr Bond made a journal entry in the books of WRS which was then posted to the general ledger to remove the $652,900 as a liability (exhibit 126).

86 Before his resignation Mr Bond prepared draft financial statements for the year ended 30 June 1995 and these recorded an amount due to Mr Lunt for consultancy fees for the year ended 30 June 1995 of $199,646. They covered the period from 1 July 1994 to 30 June 1995. The auditors, Somes and Cooke contacted Mr Bond on 16 August 1996 with a number of queries about the draft accounts to 30 June 1995 but none of these queries was related to the notes acknowledging the existence of the consultancy agreement with Mr Lunt or the amount shown due to him as at 30 June 1995 (exhibit 127) although they did make a number of quite detailed enquiries as to other aspects of the accounts.

87 Mr Bond made a second witness statement (exhibit 131) after examining the original of the consultancy agreement dated 12 April 1991 between WRS and Mr Lunt (exhibit 14). In this he expressed himself satisfied that it is his own original signature under the application of the common seal of WRS which he applied to the document. However, he had by then been provided with access to the seal register of WRS (exhibit 129) which had been maintained by him from about 1992 onwards. That contains an entry dated 24 March 1992 (CHECK) recording the use of the common seal on the consultancy agreement dated 12 April 1991 between WRS and Mr Lunt. He had also by then been provided with a letter from Messrs Robinson Cox, solicitors addressed to him as a director of WRS Pacific dated 6 November 1991 confirming his instructions for them to engross a consultancy agreement for Trevor Lunt. That is consistent with Mr Bond's note of 3 October 1991 referred to in [8] of exhibit 128 mentioned (exhibit 130).

88 That letter of 6 November 1991 contained an acknowledgment by the solicitors of Mr Bond's instructions to engross the consultancy agreement in accordance with the draft earlier forwarded under cover of their letter of 30 October 1991 and forwarded three copies of the consultancy agreement for execution. The earlier letter of 30 October 1991 containing a draft of the consultancy agreement is not in evidence but a similar letter with another draft dated 25 October 1991 from the solicitors to Mr Lunt comprises exhibits 113A and 113B.

89 Mr Bond again addressed the authenticity of the consultancy agreement (exhibit 14) in the light of the seal register of the company and the letter from Robinson Cox on 6 November 1991 and said that he was satisfied that it was authentic. This verification of the authenticity of the document, however, cannot be regarded as confirming that it was executed on 12 April 1991 and indeed Mr Bond did not suggest that. Plainly enough the date on the document is not the date of execution. It can only have been executed on or after 6 November 1991 and according to the seal register the seal was affixed on 24 March 1992. Furthermore, Mr Bond was not an office holder in WRS until he became its secretary in June 1991 and in cross-examination acknowledged that the entry in the company's seal register indicated that only one rather than two or three copies of the consultancy agreement was sealed.

90 In cross-examination Mr Bond's attention was directed to an email which he had sent to Mr Lunt on 3 October 2001 (exhibit 120) relating to other litigation but touching on some of these same events. In that Mr Bond recorded that he had been advised by a solicitor in Sydney to check carefully the authenticity of his apparent signatures on the Briggs' letter of 20 June 1995 (exhibit 34) the 'Coco's letter' and also Mr Lunt's letter of the waiver of 23 June 1995 (exhibit 35) and asking for access to original documents for the purposes of comparison. On the basis of this letter it was suggested to Mr Bond that he had not actually signed one or both of those letters and that his signature had been copied and transposed by some unknown method. He did not accept that this was so. Mr Bond had obviously thought very carefully about that possibility and had treated it seriously when being cross-examined but in the end he maintained, that as far as he could tell, his signatures on both occasions were genuine. Mr Bond also acknowledged in cross-examination that he was not in regular contact with Mr Briggs at the time during which he was the secretary or a director of WRS and that most of his contact was with Mr Lunt. Later this was relied upon by the defendants as a basis for suggesting that Mr Bond's source of information about the financial affairs of WRS, and hence his approach to the preparation of the accounts came entirely from Mr Lunt and that the accounts, as prepared recording progressive liabilities for consultancy fees were all due to the artifice of Mr Lunt. Mr Bond would not accept this and maintained that the accounts were prepared in the proper way circulated, audited and published and that had there been any error in the basic approach to the accounts or the transactions he would have expected that to have been drawn to his attention. One would have been inclined to expect that that would be so.

91 As indicated I accept Mr Bond as a truthful and reliable witness. Several important points emerge from his testimony. First of all he explains how the annual accounts for WRS for the years ended 30 June 1991 to 30 June 1994 plus the draft accounts to 30 June 1995 all refer to the existence of the consultancy agreement with Mr Lunt and demonstrate that there was an unpaid balance of fees owing at 30 June 1994 of $652,900. He also confirms that, as a result of the initiative begun by Mr Briggs arrangements were made for that indebtedness to be removed from the balance sheet as at 30 June 1994 and that this occurred in mid-1995. As best as he was able to do he confirmed the authenticity of his signature on the extension letter (exhibit 58) of 23 June 1993, on the Coco's letter of 20 June 1995 (exhibit 34) and on Mr Lunt's letter of waiver of 23 June 1995 (exhibit 35). Significantly, he confirmed that instructions had been given by the company to its solicitors to prepare the consultancy agreement and that, after a series of negotiations, three copies of the consultancy agreement for engrossment were sent out by Messrs Robinson Cox on 6 November 1991. This establishes that the consultancy agreement could not in fact had been executed before that date. The seal register, so far as it is a guide indicates that the seal was affixed on 24 March 1992.

92 A further issue about the consultancy agreement (exhibit 14) bearing the date of 12 April 1991 arises from exhibit 132. This is a copy of the cover sheet and last two pages (8 and 9) of the consultancy agreement (exhibit 14) which was found among the audit file of WRS produced from the offices of Somes and Cooke. So far as can be ascertained or inferred it appears that a copy of the cover sheet and the last two execution pages of the document were made and sent to the auditors, to form a part of the audit trail for their reviews of the company accounts. These were kept by the auditors until the files were produced on subpoena for these proceedings. On the front page, in manuscript, it is noted as been recorded in the seal register of the company and having been sealed on 24 March 1992, corresponding with the seal register, (exhibit 129). This document is in the same typescript and format and carries the same word processing reference as the original exhibit 14. However, although it is signed on page 9 by Mr Lunt his signature is not accompanied by the signature of any witness although the original does bear the signature of a witness. Again, although exhibit 132 bears the common seal of WRS and the signature of Mr Bond as a secretary there is no signature on behalf of Mrs R Y Briggs as there is on the original. The only explanation can be that this copy sent to the auditors was made after a copy of the consultancy agreement had been signed by Mr Lunt but not witnessed, after the seal had been affixed by WRS and the signature of Mr Bond applied but before it had been signed by Mrs Briggs.

93 This presents as something of a mystery and is relied upon by the defendants to submit that Mrs Briggs' signature was forged on the document or, at the very least, that the document was not executed in the presence of Messrs Lunt, Peter Briggs, Mrs Briggs and Mr Bond at the Briggs' home in April 1991 as the plaintiff alleges and has testified.

94 The evidence from Robinson Cox, of course is that three copies of the consultancy agreement were forwarded to WRS for execution. Only one original has been produced and tendered in evidence and the seal manual records that the seal was only affixed once. When shown this document Mr Bond was unable to recall any of the details of the execution or the processing of the document, but was obviously alert to the implications which it was capable of conveying. In the end he acknowledged that there is every likelihood that he may have applied the company seal to the document, signed it as secretary, and that Mr Lunt had signed it before he, or Mr Lunt later took it to Mrs Briggs for her to sign as director and for Mr Lunt's signature to be witnessed. That is indeed a possibility. No point was made, if that course had in fact been followed it would not have amounted to a valid and enforceable execution of the document by WRS for want of proper formalities. The case was conducted entirely on the basis of whether or not Mrs Briggs, and for that matter Mr Bond had ever signed the document as officers of WRS and it is on that basis that I address the issues. I do not consider that it is possible to reach any conclusions about whether or not the consultancy agreement was properly executed or not on the materials described so far. Further evidence needs to be considered.

95 More information about the origin of the alleged consultancy agreement and its preparation came from Mr Michael Phillip Bowen, a partner of Robinson Cox in 1990 - 1992 who was acting for Mr Briggs, the company, WRS and who was dealing with the instructions given for the consultancy agreement. It should be said immediately that Mr Bowen was the partner in charge who was supervising the work of employed solicitors who were dealing directly with the instructions. The solicitor principally concerned in dealing with these matters appears to have been Mr Peter Charles Ransom but he was not called to give evidence and no point about this was made. It is necessary to appreciate, however, that Mr Bowen, while having final responsibility for the instructions and their implementation, was largely supervising the work of Mr Ransom.

96 Mr Bowen was admitted as a practitioner of this court in December 1979 and had been at the firm of Robinson Cox and a partner for some 16 years before moving to another firm Messrs Hardy Bowen. In 1991 he was practising on the commercial side at Robinson Cox and was the partner principally dealing with Mr Peter Briggs and his associated entities. Mr Briggs was then a long standing client of the firm. Mr Bowen was shown a folder of documents relating to his firm's file for Mr Peter Briggs re WRS Australia and confirmed that he had been the partner in charge of this file and that it was treated as a file for Mr Peter Briggs. He had no direct recollection of the events or details other than from reading the available papers. As a result of this transaction he came to know the plaintiff, Mr Lunt, and the firm Robinson Cox then dealt with Mr Lunt over the ensuing years. From the file Mr Bowen was shown two documents (exhibits 112A and 112B). The first of which was the Robinson Cox instruction sheet dated 27 April 1991 for the office outside clerk to stamp, as a matter of urgency, three copies of a consultancy agreement. The second was a stamp duty assessment lodging sheet prepared by Robinson Cox to accompany the documents lodged for assessment which were described as being two copies of an instrument between Pacific Platinum NL and R Skidmore estimating the duty payable as $9. That document was also dated 22 April 1991 and bore the signature of Mr Ransom. It was indorsed the same day by an assessor at the State Taxation Office and it carries an imprint of a receipt for stamp duty of $9. The instrument submitted to the assessment of stamp duty under cover of these last two documents was a consultancy agreement dated 22 April 1991 between Pacific Platinum NL (WRS under its former name) and Mr R N J Skidmore (exhibit 139). This was the document providing for the engagement of Mr Skidmore to provide consultancy services. It was signed by Mr Skidmore, and the seal of Pacific Platinum NL was affixed over the signature of Mrs R Y Briggs and the then company secretary. None of these materials relate to any consultancy agreement with Mr Lunt but exhibit 139 does provide a firm factual basis for the references in the subsequent annual accounts of WRS to a consultancy arrangement with Mr Skidmore.

97 Although not discussed with Mr Bowen there are other documents from Robinson Cox relating to the affairs of Mr Briggs and WRS in evidence. Exhibit 17 is a interim invoice rendered to Mr Briggs dated 14 January 1991 for a variety of conferences, advices and drafts of a joint venture agreement and draft service agreements and the conversion of the status of a company from a no liability company to a limited company and associated matters. Exhibit 11 is a photocopy of the original consultancy agreement with Mr Skidmore (exhibit 139). Exhibit 10A is an agreement dated 21 May 1991 prepared by Messrs Robinson Cox between Pacific Platinum NL, Waste Recovery Systems Limited, Essex Properties Pty Ltd and Baywil Pty Ltd which, essentially, provides for the purchase by Pacific of all the issued shares in WRS, a condition of which was that Pacific would enter into a consultancy agreement with Mr Skidmore in the form of an annexure, which is a draft of the consultancy agreement later entered into between Pacific Platinum and Mr Skidmore dated 22 April 1991 (exhibit 139). The sale agreement (exhibit 10A) made no provision for any consultancy agreement with Mr Lunt but it was signed by Mr Lunt as a director of Baywil Pty Ltd and was also signed by the secretary of that company, Mr Kevin Bond, revealing an association between Lunt and Bond in May of 1991.

98 That sale agreement (exhibit 10A), appears to be the eventual formalisation, with some significant variations, of an earlier agreement struck between Pacific Platinum NL and Waste Recovery Systems Ltd in May 1990 under which Pacific was to acquire all of the interest which Waste Recovery Systems Ltd had in the specified intellectual property for the organic fertiliser system. That initial agreement was expressed to be conditional upon 10 separate factors, the third of which was:

3. Agreements between WT Lunt and AR Mackinlay and PPNL whereby they agree to provide their time to PPNL as required from time to time at a rate A$1,000 per day when overseas for both of them and A$90 per hour for Mr A R Mackinlay with respect to work done within Australia.

99 The earlier agreement comprised a letter of offer by Mr David Fuller as a director of Pacific Platinum NL and called for acceptance by execution and return and bears the signature of Mr Lunt for Waste Recovery Systems Ltd. That appears to have been superseded later the same day, 7 May 1990, by exhibit 7 in slightly different terms but also made conditional upon the engagement of Messrs W T Lunt and A R Mackinlay as previously specified and it bears the acceptance of Waste Recovery Systems Ltd. These were followed by a letter from Mr Mackinlay, a solicitor then acting for Waste Recovery Systems, to Mr Briggs of Pacific (exhibit 8) effectively protesting about the lack of formal documentation for the agreement. The formal sales agreement (exhibit 10A) and the consultancy agreement with Mr Skidmore, already mentioned (exhibit 139), were executed on 21 May 1991 and 22 April 1991 respectively.

100 There are then documents (exhibit 19) a letter from Mr Lunt to the directors of WRS Australia Ltd demanding payment for $186,840, pursuant to the agreement of 21 May 1991 (exhibit 19A) and a letter from Mr Mackinlay to Mr Peter Briggs of WRS Pacific Ltd dated 15 August 1991 (exhibit 12) submitting an account for a variety of services, including attendances with Messrs Bowen and Ransom at Robinson Cox and for drafting various agreements, including a preliminary agreement, a share purchase agreement, service contracts prepared for managing director W T Lunt and director Mr R M J Skidmore. Mr Mackinlay's account was not, however, paid until much later and remained an issue of dispute. Then a draft consultancy agreement prepared by Messrs Robinson Cox was forwarded to Mr Lunt under cover of a letter of 25 October 1991 (exhibit 113A) and, as already noted, on 6 November (by exhibit 130) Mr Ransom sent to Mr Bond three copies of the consultancy agreement for execution.

101 There are also other indications pointing to a later date on exhibit 14 than the date which the consultancy agreement bears - 14 April 1991. Although three engrossed execution copies of the consultancy agreement were sent by Robinson Cox to Mr Bond of WRS on 6 November 1991 (exhibit 130) there is nothing to show that they were returned to Robinson Cox promptly or at all. Although there are records that Robinson Cox stamped the Skidmore consultancy agreement on 22 April 1991 (exhibit 112), and that agreement itself (exhibit 139) between Pacific Platinum NL and Mr Skidmore of 22 April 1991 no record could be found of Robinson Cox stamping the Lunt consultancy agreement. Mr Bowen was unable to point to any such evidence in the office file which had been produced to him although it is possible, because of his distance from the actual handling of the work involved in that transaction that he may not be aware of such mundane details. It seems that if a firm of solicitors had stamped such a document it would have been recorded. One of Mr Briggs foreshadowed defences to the proceedings in the WAIRC was that the consultancy agreement relied upon by Mr Lunt, which Briggs on behalf of WRS asserted he had never seen before the commencement of that claim, was not stamped.

102 The original of the consultancy agreement entered into evidence (exhibit 14) does not appear to bear any endorsement of the payment of stamp duty for or on behalf of the State Commission of Taxation. However, a photocopy of that agreement which had evidently been tendered as an exhibit in the District Court proceedings and which is exhibit 13 does bear the imprint of the affixation of stamp duty which is difficult to decipher but which appears to record that it was lodged for stamping on or about 1 February 2001 which would make the payment of the stamp duty subsequent to the lodgement of the WAIRC application by Mr Lunt (exhibit 115) but before the determination of that application by the decision of Commissioner J F Gregor of 4 May 2001 (exhibit 94). It could well have been prompted by Mr Briggs' objections that the agreement was not stamped (exhibit 93).

103 This tends to confirm the inferences which I consider arise from the sequence of events recorded and that the findings which I have made about the actual date of the execution of exhibit 14. It is also consistent with my view that there was, at least initially some procrastination, if not prevarication, by Mr Briggs about having the company WRS enter into a formal and legal consultancy agreement with Mr Lunt. That explains why the instructions were not given to the solicitors to prepare the agreement until September or October 1991 and why the agreement was not finally engrossed and despatched for execution until 6 November 1991. It is obvious that from then until March 1992 there was an issue as to its commencement date as described by Mr Bond concerning his meeting with Mr Czechowski on 22 May 1992.

104 Consequently, I consider that the question of the practical arrangements for the execution of this document were left largely in the hands of Mr Lunt and Mr Bond but were dependant upon obtaining eventual approval or acceptance from Mr Briggs which was a lengthy and somewhat difficult task. By the time that the consultancy agreement was executed (on or about 24 March 1992 or, alternatively, possibly as late as 22 May 1992) no attempt was made to return it to the solicitors or to have it stamped. What became of the other two counterparts of the agreement cannot be determined, but the one relied upon by Mr Lunt in these proceedings (exhibit 14) was, I am satisfied, executed in the manner in which it now appears on about 24 March 1992 or, alternatively, on about 22 May 1992.

105 I am, accordingly, satisfied that the consultancy agreement was only executed on or about 24 March 1992 or alternatively on or about 22 May 1992 notwithstanding that it bears the date of 12 April 1991. I reach this conclusion despite the presumption that a document is presumed to have been executed on the date it bears: Dillon v Gange [1941] HCA 5; (1941) 64 CLR 253.

106 The situation during this period was that WRS (Pacific) was dependent for funding on advances from Mr Briggs or one of his companies. One such source of finance was from the Briggs' company, Essex Properties Pty Ltd, which, as will be recalled, was the company which eventually took over the consultancy liability to Mr Skidmore. However, in 1992 the appearances are that Mr Briggs, or Essex Properties Pty Ltd, was sparing in the amount of money which was being provided for WRS and that there were a number of demands by Mr Lunt or one of his companies in somewhat peremptory terms, about non-payment of moneys said to be due.

107 This is the setting in which the documents exhibits 43 and 44 were signed, apparently by Mrs R Y Briggs, on 2 April and 11 June 1993 respectively, giving confirmation to WRS Pacific Ltd, in the first case, that it would continue to fund the requirements for WRS Pacific Ltd and, in the second, confirming its agreement to the renewal of Mr Lunt's consultancy agreement. Mr Lunt, of course, did not have a consultancy agreement with Essex Properties Pty Ltd and the document must therefore be taken as a reference to the consultancy agreement between Mr Lunt and WRS.

108 So by letter dated 11 June 1993 on the letterhead of WRS Pacific Ltd, addressed to Mr Lunt, there is confirmation that the consultancy agreement between that company and Mr Lunt would be renewed for a further four years. This is one of the documents (a copy of exhibit 58) for which it is said that the signature of Mrs R Y Briggs is not genuine. There is also a letter dated 11 June 1993 from Essex Properties Pty Ltd and signed by Mrs R Y Briggs to the directors of WRS Pacific Ltd confirming the renewal of Mr Lunt's consultancy agreement which, again, must be a reference to the consultancy agreement between WRS Pacific Ltd and Mr Lunt. There was no plea that the signature of Mrs Briggs on that document was not genuine (although it is not a document giving rise to contractual relations upon which the plaintiff depends) and there was no expert handwriting evidence to suggest or assert that it was not Mrs Briggs' signature. Nevertheless, in the course of his evidence Mr Briggs made remarks to the effect that many, many documents had been fabricated by Mr Lunt, forged, copied or manufactured, so that, presumably, he has asserted that this document was not genuine. However, it was not put to Mrs Briggs and it has not been the subject of detailed dispute or challenge.

109 Notwithstanding this, there were few payments made by WRS, Essex Properties or Mr Briggs to Mr Lunt or via WRS for services and expenses which he had incurred in 1992 and 1993 leading to letters being written by Mr Lunt in plaintive terms to Mr Briggs at Essex Properties Pty Ltd explaining that his financial position was parlous and asking for payments to reduce his debt (exhibit 23A, 20 October 1993; exhibit 23B, 20 October 1993; 24A, 25 October 1993; and a second letter of 25 October 1993, exhibit 24B). These made reference to a meeting between Mr Briggs and Mr Kevin Bond on 21 October 1993 in which Mr Lunt asserted that Mr Briggs had agreed to make arrangements for immediate settlement. In order to support Mr Lunt's somewhat precarious position with his bank, the R & I Bank, Mr Bond sent a fax to the bank on 29 October 1994 to confirm that he, Bond, had been present with a representative of Essex Properties Pty Ltd on 21 October 1993 when Essex Properties Pty Ltd had agreed to arrange the repayment of moneys due to Mr Lunt's company to the extent of approximately $120,000, followed by a second facsimile of 3 November 1993 from Mr Bond to the bank confirming that Essex Properties Pty Ltd and its associated entities had in the past met the expenses of WRS and made payments to Mr Lunt's company (exhibits 25 and 26).

110 These documents, which I am satisfied are authentic, establish that from the outset in 1990 Mr Lunt was pressing for a formal consultancy agreement between himself and WRS and for a similar such agreement with Mr Skidmore. Despite initial agreement on those terms in May 1990, it seems that the question of the consultancy agreements became somewhat contentious and by the time that the sale agreement (exhibit 10A) was agreed upon all that had been resolved was that Mr Skidmore should be retained on a consultancy agreement and that the sale of the enterprise to Pacific was conditional upon that occurring as it did. From then on, the question of Mr Lunt being retained on a consultancy agreement was the topic of discussions between the solicitors, Robinson Cox, for the Briggs' interests and Mr Mackinlay for Mr Lunt, but it was not until October 1991 that Robinson Cox eventually received instructions to prepare an agreement, which they did, despatching it for execution on 6 November 1991.

111 The consultancy agreement relied upon by Mr Lunt (exhibit 14), as drafted, provided for a commencement date, being 12 April 1990 (cl 1.2). As apparently executed, that consultancy agreement amended the commencement date to provide 12 April 1991, the amendments being initialled apparently by Mrs Briggs and by Mr Lunt, but not, apparently by Mr Bond. It is to the point that Mr Bond's evidence was that at the meeting which he had with Mr Czechowski on 22 May 1992 (exhibit 123) Mr Czechowski was objecting to executing the consultancy agreement because the start date was uncertain and that as a result the start date was changed to 1 April 1991, although in fact the document as executed involved a change in commencement date from 12 April 1990 to 12 April 1991.

112 In context, this appears to me to be a further strong indication that the consultancy agreement was not executed until about 24 March 1992 (as appears from the seal register, exhibit 129) or later but that there had been a long-running controversy about the date from which it should be regarded as having effect. The commencement date as drafted (12 April 1990) is not without some significance. It is only shortly before the agreement recorded between Pacific Platinum NL and Waste Recovery Systems Ltd in the letter of 7 May 1990 (exhibit 6) and reflects, in my view, a long-standing attitude by Mr Lunt that he deserved to be treated as a consultant from then on. As I have indicated, this became a stalling point in the negotiations and although the commencement date of 12 April 1990 was apparently approved in the drafts of the document, that did not receive the endorsement of Mr Briggs' sentinel, Mr Czechowski, at the meeting of 22 May 1992. The result was a compromise to put the commencement date a year later, namely 12 April 1991, leading to an amendment of the terms of exhibit 14 to that effect. The commencement date having, by this rather arbitrary process, been set at 12 April 1991, that also became the date of the consultancy agreement, presumably on the theory that the document should bear the date from which it was to take effect, notwithstanding that it was, in fact, not executed until more than 11 or 13 months later.

113 I am satisfied that this is, by far, the most probable explanation of how the consultancy agreement came to be dated as it was and how its commencement date was chosen. The fact that that compromise date of 12 April 1991 was selected as the commencement date in order to satisfy Mr Czechowski is, in my view, further evidence that there was agreement and authority from Mr Briggs for this to occur. This is but one example of progressive deferment of the creation or satisfaction of obligations and the postponement of any definite agreement as to the time for payments and moneys due which, as later events demonstrated, was a characteristic pattern of Mr Briggs' mode of doing business.

114 This makes it convenient to address directly the testimony of Mr Edmund Czechowski, who gave evidence for the defendants. He is an accountant who had been the group accountant for most of Mr Briggs' companies since about 1987. He took over the preparation of the WRS accounts for the financial years ending 30 June 1995 to 2002, obtaining a box of documents and other materials relating to that task from Mr Bond. He asserted that the records were incomplete and that Mr Bond was uncooperative, an allegation which Mr Bond denies.

115 The 1995 accounts as prepared by Mr Czechowski are exhibit 99 and make no specific mention of any liabilities to Mr Lunt or to Mr Skidmore for consultancy fees. But these accounts were not finalised until early 1997. He was a director of WRS (under the name New Resource Holdings Pty Ltd) from 1991 but says that he had no direct knowledge of any consultancy agreement. He was a director from June 1991 to June 1992 and then again from December 1996 to June 2003 and was company secretary from December 1996 to June 2003.

116 Mr Czechowski attempted to investigate Mr Lunt's assertions that WRS's records had been seized by ASIC, the Australian Federal Police or the Australian Tax Office and wrote to those entities but received replies that no such records were held. He also denied ever speaking or ever supplying documents to the New Zealand directors Messrs McShane and Johnson. In cross-examination he agreed that he had become a director of WRS because Mr Briggs was ineligible to act and that he stood in for him. He denied that Mr Bond or Mr Lunt ever said that the company records had been seized by the New Zealand corporate regulatory office and he also said that he did not recall ever seeing accounts showing a debt for consultancy fees due to Mr Lunt, notwithstanding the 1993, 1994 and draft 1995 accounts which did contain such entries. Mr Czechowski said that Mr Lunt never rendered any invoices to the company and that if he had done so Mr Czechowski would have the accounts from him.

117 Mr Czechowski was a director of WRS at the time of the sale of its assets to Max Resources and participated in the decision with Mr Briggs on behalf of WRS to dispose of the consideration given by Max Resources for that sale.

118 Under the agreement with Max Resources the 5 million shares allotted in consideration for the sale of the assets of WRS were, of course, to be allotted to WRS. However, Mr Briggs obviously entertained a different approach because on 24 April 1997 he wrote to Mr Lunt (exhibit 73) on behalf of Essex Properties to say that when the shares were issued they would be distributed respectively to 'our shareholdings' which, in the context can only mean that they were to be allotted proportionately between the Briggs interests, the Skidmore interests and the Lunt interests who were the shareholders in WRS. That is not what occurred.

119 Mr Lunt seems to have been disposed to the proposal that the shares in Max Resources should be allotted to the shareholders in WRS and sought to modify this by proposing that the shares should be allotted either to the shareholders or to their assignees (exhibit 74, 12 May 1997). In fact Briggs arranged for the shares to be allocated to four other companies as shown in his letter to Max Resources of 20 June 1997 (exhibit 75).

120 By the sale agreement (exhibit 66) the purchase price for the assets was the issue of 5 million fully paid ordinary shares in Max Resources at a deemed issue price of NZ$0.30 per share, which may have needed to be held in escrow. The shares were in due course issued but, because of the decision taken by Mr Briggs and Mr Czechowski, they were not allotted to WRS but rather to its creditors, most of which were Briggs' related companies. This was done without the knowledge or approval of Mr Lunt, still a shareholder in WRS, nor, apparently, of Mr Skidmore.

121 There appears to have been no reluctance by Mr Czechowski to participate in the decision to treat the consideration passing to WRS from Max Resources in a way by which most of it went to Briggs' entities because of any conflict of interest by Mr Briggs. Mr Czechowski said that there was no occasion to consider the interests of the shareholders of WRS in reaching this decision because all the executive powers of the company rested in the board.

122 I did not regard Mr Czechowski as a reliable, frank or even honest witness. That he disclaimed any knowledge of a consultancy agreement with Mr Lunt or references to consultancy arrangements with Mr Lunt in earlier accounts of the company was, in the circumstances of this litigation, plainly incredible. That is inconsistent with Mr Bond's notes of the meetings of 13 and 22 March 1992. That he did not examine or investigate the 1994 accounts, including management accounts, for WRS when he came to prepare and settle the 1995 accounts is also incredible. Mr Czechowski showed obvious partisanship with Mr Briggs and he is not, in my estimation, a witness whose testimony can be accepted.

The evidence of Messrs Verheggen and Langoulant

123 As previously noted Messrs J J Verheggen and N J Langoulant were businessmen located in Western Australia who were two of the directors of Max Resources, the other two directors of that company being the New Zealand residents Messrs McShane and Johnson. It was Mr Verheggen on behalf of Briggs' interests who proposed the sale of WRS or its assets to Max Resources leading to the so called due diligence visits of the New Zealand directors to appraise the affairs of WRS in Western Australia.

124 The material issue arising from the evidence given by all four of the Max Resources directors relates to the question of whether or not, in the course of those visits Mr Briggs had said to Messrs McShane and Johnson words to the effect that a debt owing by the company to Mr Lunt had been removed from the balance sheet by Mr Briggs himself taking over liability for this because the two New Zealand directors had enquired into the nature and extent of the liabilities of the company then under consideration for a takeover. Mr Briggs denied making any such remarks, denied giving to Mr Johnson any letter relating to the waiver by Mr Lunt of the debt he alleged was due to him by WRS and said, with some belated qualification, that there never was a proposal for Max Resources to take over the shares in WRS and that at all times when the New Zealand directors were involved the only structure under discussion was the sale by WRS to Max Resources of its assets, leaving the company remaining liable for all and any liabilities. On these issues I have already indicated that I prefer and accept the evidence of the New Zealand directors but it is necessary to elaborate upon the reasons for this and the nature of the conflicting evidence adduced for the defendants.

125 Josephus Jeffrey Verheggen was born 22 November 1960 and described himself as a consultant to the financial market which, upon elaboration, was said to involve managing his wife's money. His evidence-in-chief comprised a witness statement (exhibit 141). According to him he was approached in late 1996 by Mr Briggs to be told of an opportunity to acquire the business of WRS and to speak to Mr Lunt about the prospect and, in the process, learnt that Mr Briggs was the financier of WRS and that Mr Lunt was responsible for its daily operations. He said that in mid-1997 an agreement was reached by which Max Resources purchased the assets of WRS in a stock for asset sale.

126 In describing Max Resources Mr Verheggen asserted that Messrs McShane and Johnson were hired as non-executive directors solely to fulfil the New Zealand listing requirements and that they did not actively participate in the day-to-day operations of the company. According to him, Messrs Johnson and McShane had nothing to do with the negotiations for the sale but were kept informed so that they could vote on the final agreement. According to him it was Mr Langoulant who conducted the due diligence for the transaction and this did not involve any investigation of WRL's finances other than confirming the existence of its assets. Because Max Resources was not interested in buying the business of WRL it was not concerned with its liabilities. According to him Max Resources did arrange for Mr McShane and Mr Johnson to come to Perth but that was only to attend board meetings and meet people involved with WRS and there were two or three such visits by the New Zealand directors during this period.

127 According to Mr Verheggen neither Messrs McShane nor Johnson discussed any business with Mr Briggs or received any documents from him. Mr Verheggen said that he did not receive any documents in relation to the sale direct from Mr Briggs and as far as he was aware neither did Mr Langoulant and that all the paperwork was conducted between Messrs Lunt and Langoulant.

128 In cross-examination he asserted that there was no due diligence role for the audit committee, that he would never have listened to anything said by the two directors from New Zealand because, in various ways he controlled 50% of the shareholding of the company and that he had no recollection of meeting with Mr McShane or Mr Johnson on their visits to Perth. I am afraid I am obliged to say that Mr Verheggen made a very poor impression, that he was quite naked in his disregard of Messrs McShane and Johnson. I cannot regard his testimony as at all reliable or credible.

129 Mr Michael James Langoulant was born on 20 December 1956 and gave evidence by video-link from Sydney and gave his occupation as a chartered accountant. His evidence-in-chief is the subject of his statement in exhibit 150. He said that all the negotiations for the sale of WRS' assets were between Mr Briggs on behalf of WRS and Mr Verheggen and himself on behalf of Max Resources and that in mid-1997 a sale agreement of the assets of WRS was reached in return for stock to be issued by Max Resources. He says that he had no other involvement with WRS either before or after the sale of its assets to Max Resources - a version which is inconsistent with the testimony of Mr Verheggen, but not, in my opinion, to be discarded for that reason. Mr Langoulant too made it plain that Messrs Johnson and McShane were hired as non-executive directors only to fulfil the New Zealand listing requirements and that they did not actively participate in the day-to-day operations of Max Resources. He said that he worked out the details of the sale in discussions with Mr Verheggen and Mr Lunt and that the deal was presented as a proposed purchase of assets of WRS and not its shares. He said:

The asset sale idea was presented to Johnson and McShane by myself and Verheggen. It was not presented to them for their participation in negotiations, but so they could vote on the transaction as board members.

Johnson and McShane had nothing to do with the negotiations with [WRS] or the due diligence in relation to the asset sale.

130 In cross-examination his attitude that Messrs Johnson and McShane were simply there to fulfil the listing requirements of the New Zealand authorities, and were allowed no deliberative participation in the affairs of Max Resources became apparent but he did accept that they were both on the audit committee. He maintained that there was no initial proposal for the purchase of shares and said that during the Perth visits Messrs Johnson and McShane never met Mr Briggs although he had heard that on one occasion at least one of them met Mr Briggs when they went yachting. Mr Langoulant agreed with Mr Briggs that the consideration for the purchase of WRS' assets by Max Resources, namely the 5 million shares issued, should not be issued to WRS but to other entities nominated by Mr Briggs and thought nothing strange in that because Mr Briggs 'controlled the company'.

131 Mr Langoulant did not impress as a person who was giving a full account of the dealings leading to the purchase by Max Resources of the business or assets of WRS and it was quite evident that he set out to diminish the role, importance and knowledge of Messrs Johnson and McShane. As previously remarked both of those New Zealand directors struck me as experienced, cautious men with a sense of responsibility but that cannot be said of Mr Langoulant. I have no hesitation in preferring the evidence of Messrs McShane and Johnson on all these issues.

132 In separate proceedings in CIV 1489 of 2001 between New Resource Holdings Ltd as plaintiff, Mr Lunt as first defendant and Waste Recovery Systems Ltd as second defendant Mr Briggs swore an affidavit on 16 September 2008 which dealt with the arrangements for the sale of the WRS enterprise to Max Resources in 1996 and 1997 (exhibit 158) and to which he annexed a copy of a draft of the proposed share sale agreement then dated 5 November 1996 between Essex Properties Pty Ltd and others, including Messrs Lunt and Skidmore and Max Resources. The shareholders in WRS were termed the 'vendors' and Max Resources was termed the 'purchaser' and the subject matter of the proposed agreement was the sale of all the issued shares in WRS and options to Max Resources by each of the shareholder vendors. In the body of the affidavit, at par 7, Mr Briggs deposed:

In 1996 or 1997 there were negotiations between the plaintiff and Max Resources Ltd, to sell the plaintiff's assets to Max Resources Ltd. Originally the deal was going to be structured through Max Resources Ltd buying all of the plaintiff's shares. By its contents, I believe that attachment PB1 is a draft of that agreement.

133 This provides express confirmation of the evidence of Mr Lunt, and of Messrs McShane and Johnson, that the negotiations for the Max Resources deal originally proposed a sale of all the shares in WRS. The draft agreement to Mr Briggs' affidavit shows that that was the position as late as 5 November 1996. I regard this as an emphatic refutation of the evidence of Messrs Verheggen and Langoulant and also of Mr Briggs' initial evidence that the sale was only ever going to be of the assets of WRS.

134 I am satisfied that Mr Briggs has falsely denied the nature and extent of his discussions with Mr McShane and Mr Johnson about discussions over actual or past liabilities of WRS which occurred between the three of them during the Perth visits and that he has also falsely denied that he gave oral assurances and provided documents to Mr Johnson to the effect that with the debt due to Mr Lunt for consultancy fees had been removed from the balance sheet of WRS.

135 It is convenient to examine the stage reached at this point bearing in mind the evidence which I consider I can and should accept but without in any way disregarding or excluding the other evidence from Mr Lunt, Mrs Briggs, Mr Briggs, the handwriting specialists and Ms Saunders on these and other issues. There was a consultancy agreement (exhibit 14) prepared by Mr Briggs' solicitors with his knowledge and approval and despatched to Mr Bond and WRS on 6 November 1991 for execution. All the probabilities are that that document was not executed, if it was ever properly executed until on or about 24 March 1992, the date which Mr Bond recorded as affixing the seal, or perhaps until about 22 May 1992. I accept that Mr Bond first had a discussion with Mr Czechowski leading to a decision that the company should execute the consultancy agreement.

136 There is an issue as between Mr Lunt and Mr Briggs as to whether or not Mr Lunt prepared invoices for the various expenses and services which he performed under the consultancy agreement and sent them to the company or to Mr Briggs. Mr Lunt has put in evidence a quantity of these documents and has said that they were prepared progressively and submitted and that there was never any objection made to them. These were the basis for the compilation of the amounts due to him for consultancy fees which were taken up in the company accounts and included in the balance sheets and other financial reports for each of the years ended 30 June 1992 to 1994 and in the draft accounts for 1995 before the 1994 accounts were modified to exclude the balance of $652,900 which had by then accrued. Mr Briggs denies that invoices were prepared or submitted or brought to his attention and in effect asserts that these have all been manufactured subsequently by Mr Lunt to bolster his false claims. On this point, because of my grave reservations about the evidence of Mr Briggs and a number of lesser concerns which I have about the evidence of Mr Lunt I do not think that a conclusion can satisfactorily be drawn from the evidence of either of them. Rather, the fact that balances for outstanding consultancy fees due to Mr Lunt were recorded in the 1993 and 1994 accounts of the company and that Mr Bond has detailed records in the ledger of the company showing how that balance was removed satisfies me that the company had acknowledged, as at 30 June 1994 that fees to a total of $652,900 were owing to Mr Lunt and that resolves the question of quantification of consultancy fees to that date.

137 The quantification of consultancy fees as claimed by Mr Lunt for the period after 1 July 1994 depends upon the acceptance of Mr Lunt's evidence that the fees were incurred and that invoices for them were duly submitted to WRS progressively to a later aggregate of $482,000. The draft accounts of WRS as at 30 June 1995 (which were never completed by Mr Bond and were not settled until 1997 by Mr Czechowski in a much different form in exhibit 63, page 419) record consultancy fees then due to Mr Lunt of $199,646. Details of Mr Lunt's travels on behalf of the company during the period 1 July 1994 to 23 April 1997 are set out in exhibit 30 which records, from his passport records, a total period out of Australia of 513 days of which invoices were submitted for 482 days for work spent on WRS affairs.

138 Mr Lunt became dissatisfied that he had not been paid his consultancy fees or 'away from home allowance' and had not received the shares to be issued by Max Resources. This resulted in a somewhat acrimonious correspondence with Mr Briggs (exhibits 77, 78, 79, 80, 81, 82, 83, 84, 86) up until 10 April 1998 in which Mr Lunt was claiming $314,000 from WRS. There was no satisfactory resolution of that claim and then ineffective resort was made to various legal proceedings on behalf of Mr Lunt's interests.

139 A somewhat unusual and emollient letter was then sent by Mr Briggs to Mr Lunt on 22 May 2000 (exhibit 87) which addressed in part the role of Mr Briggs in the termination Mr Lunt's employment by Max Resources under an executive service agreement which he had with that company. The letter of termination is exhibit 5. It is unnecessary to go into the reasons for termination or to attempt to evaluate them in any way but it is obvious that by then there was a split in the board of Max Resources and that the Briggs' interests were in the ascendant. In view of the hostility evident in the demands for the payment of money claimed by Mr Lunt the insouciance of Mr Briggs in attempting to mollify Mr Lunt is striking. He wrote (exhibit 87):

Dear Trevor

I am writing to apologise for the unfortunate way I have treated you since March 1998.

I regret the manner and circumstances in which your employment contract was terminated with Max Resources Ltd.

We have known each other for more than 30 years during which time I have had no cause to complain about you in any shape or form.

Please accept this apology in the spirit of our reconciliation as I am looking forward to a new future together.

Yours sincerely

Peter Briggs

140 According to Mr Briggs he had, by this time, taken Mr Lunt to task for falsely claiming that there was a consultancy arrangement between Mr Lunt and WRS and that Mr Lunt had falsely manipulated the accounts of WRS to show a balance of consultancy fees due to him as at 30 June of $652,900. According to Mr Briggs when he confronted Mr Lunt with this discovery in mid-1995 and demanded that Mr Lunt redress the position, waive the debt and remove it from the books of WRS Mr Lunt readily complied because he realised that his 'try on' had failed. According to Mr Briggs it was for this reason alone and not because of the reasons advanced by Mr Lunt, namely that Mr Briggs wanted WRS to have a clean balance sheet and that he, Briggs would personally take over the liability for consultancy fees, that the waiver letter of 23 June (exhibit 35) was given by Mr Lunt. I do not accept Mr Briggs' testimony in this regard and his letter to Mr Lunt (22 May 2000, exhibit 87) is only a small part of my reasons for disbelieving him.

141 The $314,000 consultancy fees claimed by Mr Lunt was for the period from 1 July 1994 to 30 June 1996. They are particularised in a letter which he sent to WRS, care of Mr Bond, of 30 June 1996, which was included in the proceedings which Mr Lunt instituted in the Industrial Relations Commission of Western Australia (1827 of 2000, exhibit 115). It will be necessary to return to the significance of the proceedings in the WAIRC which were dismissed because of the finding of want of jurisdiction but, for the present, those materials are relevant as providing a basis for part of the claim for consultation fees from 1 July 1994 onwards.

142 The quantification of the full $482,000 for consultancy fees claimed by Mr Lunt from 1 July 1994 onwards is detailed in Mr Lunt's witness statement (exhibit 108, [148] - [196]). In effect it is for 482 days' service at $1,000 per day (exhibit 40). The individual invoices comprising parts of the claim are exhibit 61 and the one way correspondence between Mr Lunt and Mr Briggs about payment and offering acceptance of a compromise figure of $314,000 includes exhibits 17, 71, 76, 77, 81, 82, 83, 86.

143 Mr Briggs' response to these allegations by Mr Lunt was to the effect that the claim was utterly contrived, that invoices had not been submitted, that the documents referred to, or most of them, had been fabricated by Mr Lunt for the purposes of this and other litigation and that the entire claim was spurious. However, there was no attempt made to show that the post June 1994 claim for consultancy fees was greater than it should have been or that, for any particular reason, individual components were not recoverable or recoverable in full. The case was conducted on the footing that there had never been any entitlement by Mr Lunt to receive consultancy fees from the company and that the claim as advanced was completely false and contrived.

144 In these circumstances I consider that if the evidence establishes to my satisfaction that there was an agreement for Mr Lunt to be paid consultancy fees by the company; that it continued to have effect from 1 July 1994 until 1997; and that it provided for fees at the rate of $1,000 a day plus fees for other services then the claim as submitted by Mr Lunt should be accepted as there was no suggestion that he was not out of Australia on company business at the times and for the periods which he claimed.

145 Mr Briggs' position, for himself and for WRS in this regard was simply that the performance of that work was part of Mr Lunt's responsibilities as a director and for the advancement of his own interest in bringing the enterprise of the company to maturity and to a point where value could be realised by the sale of its shares. He does not contend that the work was not done or that services were not given but rather that there was no entitlement to be paid and that invoices as claimed were not submitted.

146 Accepting as I do that the consultancy agreement bearing date 12 April 1991 did have the seal of WRS affixed to it with the knowledge and authority of Mr Bond who countersigned as the secretary of the company the next question is whether or not the apparent signature of Mrs R Y Briggs was validly part of the process of apparent execution of that agreement (exhibit 14) by the company. The defendants assert that it is a forgery and on this issue the expert handwriting evidence must be addressed.

147 Three acknowledged experts in handwriting analysis and comparison gave evidence: Mr Steven John Dale and Mr John Douglas Gregory for the plaintiff and Mr John Harry Horton for the defendants. Each was very experienced, suitably qualified, independent and thorough in the analysis undertaken and attempted. I have no doubt about the competence and reliability of any of these three specialist witnesses and consider that their evidence is relevant and helpful, but not conclusive.

148 Mr Dale gave evidence by video-link from Tasmania, providing his report dated 19 February 2009 which became exhibit 36. Mr Dale had been instructed to conduct an examination of a particular questioned signature and one set of initials and, to do that comparison, was provided with a specimen of what he was told were known signatures of Mrs Briggs. The questioned signature was 'R Y Briggs' upon a consultancy agreement bearing the date of 12 April 1991 and the intitials 'RYB' on that same document at page 1 of that document (exhibit 14).

149 The specimen signatures supplied to Mr Dale for the purposes of this comparison are detailed on pages 2 and 3 of exhibit 36, which comprised two original documents and some nine photocopied documents. From the specimens he discerned two clearly distinct types of signatures, those which he categorised as representing this writer's 'uncomfortable writing position' and those which he categorised as representing the writer's 'comfortable writing position'. He noticed some indications in the questioned signature showing restriction to the free flow of the script and its legibility, some retracing and retouching by the writer, and a degree of limited control. In his conclusion he expressed the opinion that the questioned signature was by the same writer as the specimen signatures but in the uncomfortable or unaccustomed writing position group. He reached similar conclusions in relation to the questioned initialling. He conducted a detailed examination using a variety of means of magnification, including a stereoscopic microscope.

150 One of the sample signatures of Mrs Briggs provided to Mr Dale as an authentic signature is on a letter from Essex Properties Pty Ltd dated 26 March 1995, exhibit 39, and another sample of Mrs Briggs' signature supplied to him as being authentic was exhibit 40, being an execution page of a document which she had apparently signed as a director of Essex Properties Pty Ltd and which appears to be an extract from the document which is exhibit 10A, although perhaps a different copy of that document or made before the document was executed by all the other parties. For each of those two samples Mr Dale acknowledged that there were similarities to the questioned signature but some dissimilarities as well. He was asked about the report of Mr Gregory and agreed that it was possible that the questioned signature could have been another style of signature and also that it might be a signature by a third person on behalf of Mrs Briggs, but he considered that as less likely.

151 The second handwriting expert for the plaintiff was Mr John Douglas Gregory, who gave evidence outlining the conclusions reached in his report of 19 February 2009, exhibit 138. It includes some photographs showing the questioned and comparison signatures under magnification (exhibit 138A) with varying degrees of enlargement. The questioned signatures which Mr Gregory was asked to examine were:

(a) the apparent signature of Mrs Robin Briggs on page 8 of the consultancy agreement bearing date 12 April 1991 (exhibit 14);

(b) the initials 'RYB' on page 1 of that same consultancy agreement;

(c) the apparent signature of Mrs R Y Briggs on the letter of 11 June 1993 from WRS Pacific Limited to Mr Lunt (the extension of the consultancy) (exhibits 45 and 58);

(d) a questioned signature of Mr Peter Briggs on the letter of 20 June 1995 (the Coco's letter) (exhibit 34);

152 At pages 6 and 7 of his report (exhibit 138) Mr Gregory tabulates a list of documents submitted to him as containing authentic copies of Mrs Briggs' signature for comparison and, on page 8, he tabulated a list of documents submitted to him which were said to be authentic copies of the signature of Mr Peter Briggs.

153 After explaining his methodology, including the use of an Electrostatic Detection Apparatus, which satisfied him that the consultancy agreement (exhibit 14) was in its current format when signed and initialled, proceeded to outline his conclusions, dealing first with the consultancy agreement of which he expressed the opinions that:

the questioned signature of Mrs Briggs had been written with speed in a black ballpoint ink in a continuous formation and that the questioned initials had also been written with speed in a black ballpoint ink in one continuous movement.
an examination of the comparison signatures revealed that there were two different signature styles attributed to the writer which he termed, respectively, the cursive style and the upright style, illustrations of which are at page 13 of the report. He went on to say that it was possible for a person to have more than one signature style and because examples of the upright signature style post-date the questioned signature of 1991, this is indicative that the comparison signatures attributed to Mrs Briggs illustrate that she is either capable of writing two different styles or that the upright signatures have been written by another person signing on her behalf.
the initials on page 1 of the consultancy agreement were compared to the capital letters used in the three comparison signatures and were of common authorship.
the signature and initials on the consultancy agreement were written by the same person who wrote the comparison signatures 'Robin Briggs' on: the Essex Properties Pty Ltd letter of 26 March 1995; a directors' report of 15 December 1999; and a directors' statement of 15 September 1999. He added that he was of the opinion that the authorship of these signatures is either another style of signature written by Robin Briggs or a person signing on her on her behalf.

154 With regard to the apparent signature of Mrs Robin Briggs on 11 June 1993 (exhibit 58) (the extension of consultancy agreement letter) Mr Gregory said that this had a pictorial resemblance to the comparison signatures of Robin Briggs but that it was not possible to determine if the signature was written on the original of the document or had been reproduced by electronic manipulation or a cut and paste method. He was simply unable to express an opinion about the authenticity of the signature on that document without the original being available.

155 With regard to the apparent signature of Mr Peter Briggs on the letter of 20 June 1995 (exhibit 34, the Coco's letter) the examination was limited because the document was only a copy. Mr Gregory said that the questioned Peter Briggs signature had some pictorial resemblance to the comparison signatures of Mr Briggs but that it was not possible to determine if the signature was written on the original of the document or whether it had been reproduced by electronic manipulation or a cut and paste method. He was unable to comment one way or the other on the authenticity of that document without the original being made available.

156 The only handwriting expert to give evidence for the defendants was Mr John Harry Horton. The substance of his evidence was contained in his report of 2 February 2009 and the accompanying chart (exhibits 37 and 37A).

157 The questioned signatures which Mr Horton was asked to examine were:

(a) the apparent signature on the execution page of the consultancy agreement of 12 April 1991 (exhibit 14); and

(b) the apparent initials 'RYB' on page 1 of that same consultancy agreement.

158 The report did not address the authenticity of Mrs Briggs' apparent signature on the extension letter (exhibit 58) or Mr Peter Briggs' apparent signature on the Coco's letter of 20 June 1995 (exhibit 34), nor did Mr Horton address those queried signatures at all in his evidence. Nor did Mr Horton's report address the authenticity of Mrs Briggs' apparent signature on the extension letter of 11 June 1993 (exhibit 58) although, as appears below, his oral evidence and the transparencies (exhibit 140) did call that into question.

159 Mr Horton also provided two transparencies of disputed signatures said to be those of Mrs Briggs which were used in his report. These are within exhibit 140.

160 These transparencies (exhibit 140) show an apparent identical congruence between the signature 'R Y Briggs' on exhibit 58 (the extension letter of 11 June 1993) and an authentic sample of Mrs Briggs' signature on the Pacific document dated 21 May 1991, suggesting, so the witness opined, that in some way the authentic signature of Mrs Briggs on the Pacific Platinum document had been lifted or copied, traced or transposed, onto the copy extension letter.

161 There was no expert handwriting evidence at any stage adduced to suggest that the signatures apparently of Mr Kevin Bond; on exhibit 14, the consultancy agreement bearing date 12 April 1991; or the extension letter of 11 June 1993 (exhibit 58); or the Coco's letter from Mr Briggs of 20 June (exhibit 34) were not genuine or had been forged. As noted, there was some cross-examination of Mr Bond about the degree of confidence which he had about the authenticity of his signatures on exhibits 34 and 35 but Mr Bond maintained that he believed that those were his signatures.

162 It follows from this that the only evidence which challenges the authenticity of the signature of Mr Peter Briggs upon the critical Coco's letter of 20 June 1995 (exhibit 34) is Mr Briggs' own denial. As I do not regard Mr Briggs as a witness of truth, that leaves the authenticity of the Coco's letter as being verified by Mr Bond and Mr Lunt. In this respect, I am not prepared to act on Mr Lunt's evidence alone but I regard Mr Bond as a credible witness and, as there is no expert evidence to question Mr Briggs' signature on that copy document, I accept it to be genuine.

163 Acceptance of the authenticity of the Coco's letter implies that Mr Briggs at that date did acknowledge that there had been a liability to Mr Lunt by the company for consultancy fees and that Mr Lunt would not discharge the company from that liability unless he, Briggs, personally accepted responsibility for that debt. A number of these inferences and conclusions are, to varying degrees, interdependent and, therefore, I do not think that it is safe to assume that if the Coco's letter is genuine then the signatures on the consultancy agreement must be authentic and/or that the signatures on the extension letter are also authentic. In a case where there are so many uncertainties and where the credibility of Messrs Lunt and Briggs are, to say the least, very tenuous, there is a need for greater care. Reliance upon this sequential form of reasoning is, therefore, of more limited assistance than might otherwise be the case.

164 Mr Horton also set out (in exhibit 37) the accepted signatures of Mrs Briggs which had been supplied to him and relied upon for purposes of comparison. These comprised his signature on the Skidmore consultancy agreement of 22 April 1991, a signature taken from company documents in 1995 and another signature taken from other company documents.

165 Having conducted his examinations, Mr Horton observed that there were differences between the signature and apparent initials of Mrs Briggs on exhibit 14, on the one hand, and accepted signatures of Mrs Briggs on the other. He outlined the details on pages 2 and 3 of his report and concluded, after illustrating the points of those disparities on a chart (exhibit 37A) that the signature and initials on the consultancy agreement were not those of Mrs Briggs.

166 In cross-examination he acknowledged that it was not uncommon to find that one person had occasionally used different styles of signature. He was satisfied that the initials and the disputed signature on exhibit 14, the consultancy agreement, were made by the same person. He did not regard that script as being indicative of an uncomfortable style of handwriting and he also agreed that it was very probable that whoever signed the apparent signature 'R Y Briggs' in the four samples set out in exhibit 138A, as produced by Mr Gregory, was the same person who had signed the consultancy agreement. This is a conclusion which raises further difficult questions. The signatures on exhibit 138A include a number of signatures apparently of Mrs R Y Briggs which had been submitted to Mr Gregory as being authentic examples of her signature and which did not originate from exhibit 14. It therefore means that the style of signature for 'R Y Briggs' appearing on exhibit 14, with its admitted dissimilarities to the more cursive style of signature on other samples of her signature said to be authentic, have been found on other documents which have not been the subject of scrutiny in these proceedings. No doubt it is an appreciation of this that led Mr Gregory to observe that there were two distinct recognisable forms of signature for Mrs R Y Briggs among the various sample signatures which had been submitted to him for comparison. A further possibility is that some other person may have, on a number of occasions in the past, signed the name 'R Y Briggs' for or on behalf of Mrs Briggs either with her knowledge or approval or in the expectation that it would be ratified by her.

167 In cross-examination it had been put to Mr Briggs that he may have on occasions signed his wife's signature on various documents with the knowledge and confidence that she would have approved of him doing so. It was suggested that he may well have done this during the period when he was disqualified from acting as a company director. Generally speaking, Mr Briggs rejected these suggestions but he did acknowledge that, on occasions of relative informality, he may have signed his wife's signature but the implication was that he would not have done so for any important legal document. I do not consider that I can dismiss the possibility that the second style of Mrs Briggs' two apparent forms of signature may, in fact, be signatures in her name made by Mr Briggs any more than I can dismiss the possibility that Mrs Briggs did, on occasion, sign in different styles. These remain uncertainties which need to be accommodated when addressing other aspects of the evidence in this case.

168 Again I accept the evidence of Mr Horton as being thoroughly independent, competent and trustworthy. In combination with the evidence of Mr Gregory, I think it must be accepted that there are two recognisable but different styles of signature for Mrs R Y Briggs and that her apparent signature on exhibit 14 is of the upright style which contrasts with the cursive style as it has been described and which appears on other documents. Whether this means that the signature is not a genuine signature of Mrs Briggs requires further consideration.

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Judgment (241 paragraphs)

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Cases Cited (2)