In late 2019, Mr Ben Elias and the defendant, Mr Simon Quinn, agreed to acquire and develop two properties, one at Badgerys Creek and one at 301 Castlereagh Street.
The mechanism they adopted was to establish two unit trusts known as the "BC Land Trust No. 1" and the "301 Castlereagh Street Trust", in which their associated companies would hold units. In the case of Mr Elias, those units were held by the plaintiff, Electric Pty Ltd as trustee for the Elias Family Trust. Electric held 50 of the 100 units in the 301 Castlereagh Street Trust and 45 of the 100 units in the BC Land Trust No. 1. An entity associated with Mr Quinn held the remaining 50 units in the 301 Castlereagh Street Trust and 45 of the remaining units in the BC Land Trust No. 1. Entities associated with the Trusts' solicitors, who play no role in these proceedings, held the remaining 10 units in the BC Land Trust No. 1.
Electric loaned significant sums to the trustees to fund the acquisition and development of the two properties.
Mr Elias also provided personal guarantees for additional monies loaned to the trustees of the Trusts by commercial lenders.
In September 2020, Mr Elias approached Mr Quinn to sell Electric's interest in the two Trusts.
Negotiations followed and various documents were executed. Amongst those documents were an "Agreement For Sale of Unit Trust Units" in relation to each of the Trusts. The final version of these were executed by both Mr Elias and Mr Quinn on 15 March 2021. Pursuant to those documents Mr Quinn [1] agreed to "make available" to each trustee sufficient funds to repay the amount owing by that trust to Electric and each trustee agreed to use those funds to repay those loans: $267,500 in the case of the 301 Castlereagh Street Trust and $1,220,517.67 in the case of the BC Land Trust No. 1.
The sale of Electric's units to Mr Quinn settled on 19 July 2021, on which date those payments were made.
The question is whether, in the events that have happened, Mr Quinn is liable to pay Electric a further $1.5 million in relation to the sale of Electric's units in the BC Land Trust No. 1.
There is in evidence a "Deed" bearing the date 11 January 2021, evidently executed by Mr Quinn in the presence of a witness, Mr Roy Costigan, which appears to impose that obligation on Mr Quinn.
The Deed recites:
"A. Electric and Quinn are parties to an agreement [f]or the sale by Electric of 45 units in the BC Land Trust Number 1 to Quinn (the BC Agreement).
B. The parties agree that in addition to the consideration paid under the BC Agreement for the units by Quinn to Electric, Quinn shall do all things as agreed under this Deed for the benefit of Electric."
The "operative provisions" of the Deed are:
"2. Operative provisions
(a) Quinn shall procure that Electric is issued with 7,500,000 shares in Affinity Energy and Health Limited (AEB) at the list price of $0.20, with effect once that entity achieves a re-compliance listing on the Australian Stock Exchange.
(b) …
(c) In the event that the obligations under clause 2(a) are not performed within 730 days from the date of this deed, then Quinn must pay to Electric the sum of $1,500,000.
(d) …
(e) …"
In his affidavit evidence, Mr Quinn was equivocal as to whether he had ever executed the Deed. Thus, he said:
"I refer to the executed Deed dated 11 January 2021 which is annexed to the affidavit of Mr Elias. I have no recollection of signing that document and do not believe that I did."
In his affidavit, Mr Quinn was, nonetheless, clear that he did not execute the Deed on the evening of 15 March 2021, as Mr Elias deposed in evidence to which I will shortly refer.
However, it emerged during the hearing that Mr Quinn's recollection was more nuanced.
Thus, I had this exchange with Mr Kidd SC, who appeared for Mr Quinn:
"HIS HONOUR: All right. Well, Mr Kidd, is Mr Quinn still contending he did not sign that document?
KIDD: I think--
HIS HONOUR: I noticed your submissions were very nuanced.
KIDD: Yes. I think having regard to the evidence, it will be hard for us to persuade your Honour that - although Mr Quinn believes he didn't sign it - he didn't, having regard to his signature appearing on the document. And that's on the assumption that Mr Costigan …--
HIS HONOUR: Seems pretty sure.
KIDD: Gives evidence, which we assume he will."
And later:
"HIS HONOUR: So, what's his position; that he did sign?
KIDD: Sorry, your Honour?
HIS HONOUR: So, Mr Quinn is saying he signed on 11 January.
KIDD: Probably, is the answer. Probably, yes. More probably than not he signed on 11 January."
In cross-examination, Mr Quinn agreed that "[he] could have possibly signed it in January".
When shown the original of the Deed, Mr Quinn gave this evidence:
"Q. Can you turn to the signature page of that document, please.
A. Yes.
Q. That's your signature that appears at the bottom of that page, doesn't it, Mr Quinn?
A. Well, it certainly looks like it."
What is clear, and undisputed, is that whenever it was that Mr Quinn executed the Deed, his signature was witnessed by Mr Roy Costigan; and that this occurred on only one occasion.
Mr Elias was clear about this. He gave this evidence in his affidavit:
"[On 15 March 2021] I was present in Mr Quinn's office located at Level 7, 301 Castlereagh Street Sydney, and observed him execute the Deed. Mr Roy Costigan and another person were also present with me. I observed Mr Costigan witness Mr Quinn's signature on the Deed."
As I have said, the Deed bears the date 11 January 2021. Mr Elias gave this evidence about that:
"On the front page of the Deed … is a handwritten date: 11th January 2021. I believe I wrote that date on the Deed in January 2021 to signify the date I provided the Deed to my solicitor, Mr Peter Hodges of Mills Oakley. That date was not amended or corrected when the Deed was executed by Mr Quinn on 15 March 2021, and this was an oversight on my part." (Emphasis in original.)
Mr Costigan, to whose evidence I will return, was also clear that the occasion on which he witnessed Mr Quinn's signature on the Deed was in March 2021.
Mr Kidd advanced a number of arguments as to why the Deed was binding on Mr Quinn, assuming that he had executed it. These included whether the Deed was delivered subject to an unfulfilled condition, [2] whether the Deed was collateral to an earlier, superseded agreement concerning the sale of the units, [3] whether the Deed had been recalled, [4] and whether the Deed was subject to a condition that consent of Mr Quinn's financier be obtained.
As Mr Kidd very fairly accepted in argument, all but the last of those arguments depended on establishing that Mr Quinn had executed the Deed on or about 11 January 2021, the date it bears, rather than on 15 March 2021, as both Mr Elias and Mr Costigan deposed.
Thus, the critical question is when, rather than if, Mr Quinn executed the Deed.
[3]
When did Mr Quinn execute the Deed?
Mr Costigan was a friend of both Mr Elias and Mr Quinn.
In July 2022, Mr Quinn sent Mr Costigan a text message:
"Hey mate, I have put in my submissions that you were not in Sydney on the 11 January 2021 and used your Instagram posts as the evidence. It satisfied my Lawyer for this morning so you are out of the firing line. Just give me a call when you can please."
In this message, Mr Quinn was, seemingly, trying to persuade Mr Costigan that he could not have witnessed Mr Quinn's signature on the Deed on 11 January 2021 because material on Mr Costigan's Instagram posts showed that he was not in Sydney; a proposition irreconcilable with Mr Quinn's case before me that, if he executed the Deed at all, it was on or about 11 January 2021.
Mr Quinn stated to Mr Costigan that this meant that Mr Costigan was "out of the firing line".
A short time later, on 13 July 2022, Mr Quinn sent Mr Costigan this email:
"I am an associate of Simon Quinn and have known him for approximately 8 years.
During Mid January, I was on vacation with friends at Mt Walsh National [P]ark, Queensland. I was not in Sydney on or around the 11th of January 2021. I have attached my Instagram posts to this email to show my location during Mid January.
I have been in Sydney to meet Simon at other times during 2021 between mid-April, August and September with my business partner Stephen.
During one of our meetings in April, I was asked to witness a signature of Simons on a document that I did not read. I was only a witness to Simon's signature.
Regards
Roy".
Mr Quinn attached to that email copies of what appeared to be Mr Costigan's Instagram posts showing that, in January 2021, he was at Mt Walsh National Park in Queensland.
Mr Quinn appears to have been providing a script for Mr Costigan to give evidence that he was at the Mt Walsh National Park on 11 January 2021 and thus could not have witnessed Mr Quinn's signature on the Deed then; but that he had witnessed Mr Quinn's signature "during one of our meetings in April". Again, this importuning by Mr Quinn of Mr Costigan is irreconcilable with the evidence he gave before me.
To his credit, Mr Costigan would have none of it.
Thus, on 22 July 2022, he replied to Mr Quinn:
"Simon
Just wanted to drop you a short note and say I have had Ben [Elias] contact me about the document I signed. It really stresses me out when I have got two [I'd] say friends both contacting me over a legal issue - all I did mate was sign a document by perchance. I don't like being told I am in the firing line - or have my Instagram viewed to see where I was and what I was doing - It really stresses me out. I am going to put in writing my recollection to you and to Ben [Elias] - both the same versions so you both know I am not taking sides
My recollection
• Dates or month or even what year I have no idea when I was in that meeting
• I recall the document being a document between Electric and Simon [Quinn] (I remember the Electric because I was going to call myself Electric Finance at one point uncanny[)]
• I specifically remember the deed was about shares and or cash instead of a deposit from you (didn't exactly get it still don't) - because you both told me that
• I was in your office with Steve Dyson my old boss as you were nice enough to be giving us your advice, and Ben [Elias] arrived.
• I signed the document and you witnessed it
• Ben [Elias] also gave me a deal for a boat for a friend of his in [P]ort [M]acquarie at that meeting, I subsequently gave that deal to Mel and You it was approved and settled with about 20k in it for you and you guys paid me 5 odd k as spotter fee.
I have not done anything wrong - I just signed a document - the above is my recollection which I have published to both of you".
Mr Costigan wrote a similar email to Mr Tim Sargeant, the solicitor then acting for Mr Elias:
"Hey Tim
Thought I would jump on this tonight as I have a busy day tomorrow. If you want an affidavit it will go like this
'I am in a difficult situation here because I regard myself as an associate and friend of both parties. I would like this affidavit to go to both parties written by me for both of them - with the understanding that I am just telling the truth about what I signed as a witness - wish I wasn't there now - but the below is a truthful account of what occurred from my perspective.'
I understand the date on the document may be in contention however I specifically recall the following regardless of the dates
- Recalling this document being a deed document between Electric and Simon Quinn. The reason I recall that it was a deed and Electric is because I have as a finance company owner toyed with the idea of starting a company called 'Electric Finance' thus it resonated with me - uncanny coincidence
- I specifically remember it was a deed about shares or cash for Simon's share
- I was in Simon's office with a business partner of mine Steve Dyson who is my old boss, who recalls meeting Ben [Elias] that day - we were there to get some advice off Simon in regards to another venture and Ben came in and surprised us. Ben interrupted our meeting and I signed the document aforementioned as a witness with Simon and Steve and Ben in the room and I think Simon witnessed my signature
- Ben also provided me that day with a lead for a finance customer a friend of his who wanted a 800k loan for a boat that runs for hire in and out of Port Macquarie - which I settled and have subsequently don't further finance.
Roy".
In his affidavit in these proceedings made on 18 April 2024, Mr Costigan deposed:
"I am a friend and associate of both Mr Ben Elias and the defendant, Mr Simon Quinn.
In about March 2021, I attended a meeting at Simon's office which was located at Level 7, 301 Castlereagh Street, Sydney. I cannot now recall the exact date.
I was accompanied to Simon's office by a business partner of mine, Mr Steve Dyson .
Steve and I had arranged to meet with Simon to discuss a business venture. I wanted to get some advice from Simon.
I recall that Ben came into Simon's office and interrupted our meeting.
Ben handed a document to Simon and asked him to sign it. I recall agreeing to witness Simon's signature. The document was a Deed between Electric Pty Limited and Simon.
I watched as Simon signed the Deed in my presence. I then signed the Deed as Simon's witness. I wrote my name under my signature as witness, next to Simon's signature … I did not notice the handwritten date on the first page of the Deed at the time."
Mr Costigan annexed to his affidavit the email to which I have referred at [34] above, and stated that where, in his email to Mr Quinn he had said "I signed the document and you witnessed it" he should have said "you signed the document and I witnessed it".
In his cross-examination of Mr Costigan, Mr Kidd focused on the fact that, in his email to Mr Quinn, Mr Costigan had said "Dates or month or even what year I have no idea when I was in that meeting".
Mr Costigan said that he was "a bit hot under the collar when I wrote" the email because "I had two blokes that are both friends of mine" and "I was approached by - by one of them to - to say different. And I didn't want to say different so I just - I just documented that letter, sent it to both of them, so - so everything was clear".
The "one of them" to whom Mr Costigan was referring was, obviously, Mr Quinn.
Mr Costigan was clear that, despite the statement in his email to Mr Quinn that although he could not remember what date the conversation occurred, he could recall the month.
Thus, he had this exchange with Mr Kidd:
"Q. And the truthful account of your recollection was that you really had no idea as to the date or month, or even what year the meeting occurred.
A. I think I can narrow it down to a month. That's only because at the same time Ben was there, he introduced me to a - another finance customer, but for a boat, which I funded around that time, of which Simon and I had a finance company at the time, and - and which I paid Simon [monies] for that as well. Yeah. So, I - I - I kind of narrowed it down. If I was coming here, I just wanted - I wanted to be sure of my facts."
It is true that, in answer to Mr Kidd's next question suggesting that Mr Costigan didn't really know what month the meeting took place, Mr Costigan said:
"… it's a long time ago, and I don't think anyone would know what they were doing back then."
I do not see that evidence as qualifying Mr Costigan's clear insistence that he could recall that he witnessed Mr Quinn's signature in March 2021.
I accept that evidence.
It is confirmed by the fact that later, on 11 March 2021, Mr Elias sent an email to Dion Manca, Mr Quinn's solicitor, copied to Mr Quinn:
"Thanks for the adjustment and will confirm all documents are in place including the Deed."
A few days later, on 16 March 2021, Mr Elias wrote to Mr Quinn, with a copy to Mr Manca and others:
"As per our signed Agreement for Sale of the Unit Trust Units last night with Simon we confirm that [a particular sum] will be paid into [a particular account] …
Simon John Quinn and Electric Pty Ltd … have entered into a Deed and that all the Terms and Conditions in that Deed will be adhered to by both entities."
This was a contemporaneous assertion by Mr Elias that, at the time the two Agreements for Sale of Units were executed, the parties also executed the Deed. This assertion was made at a time when there was no controversy between the parties and when Mr Elias had no reason to misstate the position.
Mr Quinn did not protest that this was not an accurate statement of what had happened.
Further evidence pointing to the conclusion that Mr Quinn did not, as he now contends, execute the Deed in January 2021 appears from an email that he sent to his financier, Arch Finance Pty Ltd, on 22 February 2021 "[r]egarding dealings with my purchase of Ben's units within the 301 trust and Ben's shares in 301 Pty Ltd".
Mr Quinn wrote:
"I have requested that Justin [Sammut] from LAS Lawyers email a copy of the unitholder sale agreement be emailed to both you and Russell for review and transparency.
The agreement sets out the arrangement related to a caveat offered as security on 301 Castlereagh for a short period of time until Ben receives his gifted shares into an IPO ASX Listing entity that I am the CEO, is listed. The principal conditions have been agreed upon between the parties, but I had not signed the agreement and would have sought permission from Arch before the agreement was finalized at the appropriate time. At its discretion, I am aware and understand that Arch has the right to refuse and or approve such an application to vary the loan agreement."
Although the first paragraph of this extract refers to the "unitholder sale agreement", the reference in the second paragraph to "the agreement" is obviously a reference to the Deed. That is because it is only in the Deed that there is a reference to the "caveat offered as security" to which Mr Quinn referred and only in the Deed that there is a reference to the shares in the "IPO ASX Listing entity", being Affinity Energy and Health Ltd referred to in par 2(a) of the Deed set out at [11] above.
As can be seen from this extract, Mr Quinn emphasised that he "had not signed the agreement", that is, the Deed, as at the date of his 22 February 2021 email. This is further evidence irreconcilable with Mr Quinn's case before me that he executed the Deed on or about 11 January 2021.
Mr Kidd placed emphasis on the fact that, on 30 May 2022, in proceedings between Electric and the trustee of the 301 Castlereagh Trust, in which Electric sought an extension of a caveat, Mr Elias had deposed that he executed the Deed on 11 January 2021. Mr Elias said, and I accept, that this was a mistake on his part, no doubt borne of the fact that he had dated the Deed 11 January 2021 in the circumstances that he explained in the passage of evidence that I have set out at [21] above.
In those circumstances, I find that Mr Quinn executed the Deed on 15 March 2021.
Mr Kidd advanced a number of submissions as to why, notwithstanding the evidence I have set out, the correct conclusion was that Mr Quinn had executed the Deed on or about 11 January 2021, rather than on 15 March 2021. Each of these submissions involve the making of inferences, none of which can be reconciled with the evidence that I have set out.
Further, a conclusion that Mr Quinn executed each of the Agreements for Sale of Units and the Deed as part of a suite of documents to give effect to his agreement with Mr Elias accords with Mr Elias's unchallenged evidence as to the terms on which he was prepared to sell his units in the two Trusts to Mr Quinn, and the commercial probabilities. [5]
Mr Elias gave this evidence of the conversation he had with Mr Quinn in September 2020, which marked the commencement of their negotiations:
"Mr Elias: 'Simon, I would like to sell my units in the two trusts. I would like to have the money that Electric lent to each trust repaid, my personal guarantees released, and we can divide the equity in the properties owned by the trusts.'
Mr Quinn: 'Ben, I would like to keep the trusts. So am happy to do a deal with you. I have no problem with Electric being repaid its loan funds, nor with you having your personal guarantees released. But can I offer to pay Electric its share of the equity in the properties with shares that I can offer you in a health company that is about to be relisted on the ASX.'
Mr Elias: 'I don't know much about these shares, but you are obviously doing well. Electric's share of the equity should be $1.5m. I'm happy for you to give me that value in shares but if that doesn't eventuate then I want you to pay me the $1.5m.'
Mr Quinn: 'I am happy to agree that Electric should receive $1.5m. Will you give me two years to pay that if I am unable to get the shares in the company to you beforehand?'
Mr Elias: 'Ok, that sounds fair as long as it's all documented.'
Mr Quinn: 'Ok, agreed. I will arrange for Dion to draft the documents.'"
That evidence was not challenged and shows the deal that Mr Elias was proposing had three elements. The first element was that the money that Electric had lent to the Trusts be repaid. The second was that Mr Elias's personal guarantees for loans made by external lenders to the Trusts be released. The third was that there be a division of the "equity in the properties owned by the Trusts".
That this was the deal that Mr Quinn had accepted is confirmed by the fact that on 22 December 2020, the solicitors then acting for the Trusts circulated draft Agreements for Sale of Units and draft Deed, the relevant email stating:
"Please find attached a copy of the agreements to be executed today."
Mr Elias did execute each of those Agreements that day. The form of the Agreements for Sale of Units was later changed to cause the transaction to have a more favourable taxation consequence for Mr Elias, but it seems unlikely that Mr Elias would have agreed to proceed to sell his units without some division of the equity in the two properties: something the Deed was evidently designed to achieve.
Mr Quinn executed the two Agreements for Sale of Units but not the Deed. Before me he contended that he understood that the deal was for either the amounts referred to in the Agreements for Sale of Units or the amount referred to in the Deed. Mr Quinn had made no such suggestion in his affidavit evidence and I do not accept that this is what Mr Quinn understood the deal to be.
In any event, on Mr Quinn's account, namely that he executed the Agreements for Sale of Units on or around 22 December 2020, and then also executed the Deed on or around 11 January 2021, his position, as it emerged at trial, was that, as at January 2021, he was prepared to pay for the units in the Trusts both the amounts referred to in the Agreements for Sale of Units and in the Deed; whereas in March 2021 he was only prepared to pay the amounts referred to in the Agreements for Sale of Units.
This cannot be what he intended.
[4]
The one argument that does not depend on a finding that Mr Quinn executed the Deed in January 2021
This leads to consideration of the one argument advanced by Mr Kidd that did not depend on a finding that Mr Quinn had executed the Deed on or about 11 January 2021.
This argument is based on the passage in Mr Quinn's 22 February 2021 email to Arch Finance that I have set out at [51] above.
Mr Quinn copied Mr Elias in on that email.
Mr Kidd put the submission this way:
"On 22 February 2021, after [Electric] had stated on 12 January 2021 that the Deed would need to be changed, [Mr Quinn] sent an email to Arch Finance (a secured lender whose interests would be affected by the operative provisions in the Deed) informing them that we would seek consent from Arch Finance before the Deed is finalised. That email was copied to [Electric]. [6]
No amended version of the Deed was executed and no consent of Arch Finance was obtained, making it unlikely that the Deed was executed on 15 March 2021 (as opposed to on 11 January 2021).
However, even if the Deed was executed on 15 March 2021 (such that that Deed was collateral to the March 2021 sale agreement), the 22 February 2021 email to Arch Finance gives rise to the reasonable inference that the parties intended that the Deed would not become operational until the consent of Arch Finance to the Deed was obtained. No such consent was obtained, and the Deed therefore did not become operational (even if it was executed on 15 March 2021)."
In oral submissions, Mr Kidd submitted that the "reasonable inference" which he contended arose from the fact that Mr Elias was copied in on Mr Quinn's email to Arch Finance. I do not see how that fact could possibly give rise to such an inference; especially when Mr Kidd did not ask Mr Elias any questions about this.
I do not accept this submission.
[5]
Conclusion
For those reasons, I find that Mr Quinn is and remains bound by the Deed and is liable to pay Electric the $1.5 million referred to in the Deed.
The parties should confer and agree on the orders necessary to give effect to these reasons.
If there is any disagreement as to costs, the parties should agree on a timetable for short written submissions.
[6]
Endnotes
And, in the case of the BC Land Trust No. 1, a second "Buyer" whose role is not relevant to the issues here, Mr Andrew Truskett.
Referring to Pittmore Pty Ltd v Chan; Chan v Tan (2020) 104 NSWLR 62; [2020] NSWCA 344 at [70]-[75] (Leeming JA, with Bell P, as the Chief Justice then was, and Brereton JA, as the Commissioner then was, agreeing).
Referring to Commissioner of Taxation (Cth) v Sara Lee Household & Body Care (Australia) Pty Ltd (2000) 201 CLR 520; [2000] HCA 35 at [22]-[24] (Gleeson CJ, Gaudron, McHugh and Hayne JJ).
Referring to Pittmore Pty Ltd v Chan; Chan v Tan (supra) at [73].
Accepting the caution that the Court must exercise when considering the "commerciality" of litigant's dealings: see Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd (2019) 101 NSWLR 679; [2019] NSWCA 185 at [56]-[58] (Bell P, as the Chief Justice then was, Basten JA agreeing); very recently cited in Sanmik Food Pvt Ltd v Alfa Laval Australia Pty Limited [2025] NSWCA 7 at [55] (Adamson JA).
As I have said, in fact it was copied to Mr Elias.
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Decision last updated: 19 February 2025