Mark Anthony CONLAN as Executor of the estate of VINCENZO FAZIO

Equity - Trusts - Express Trusts - Turns on own facts

Partnerships - Retirement of partners - Abandonment - Abrogation - Repudiation - Turns on own facts

Partnerships - Breach of agreement for partnership - Turns on own facts

Partnerships - Dissolution and winding up - Order by the court - Turns on own facts

Business Names Act 1962 (WA)

Limitation Act 1935 (WA)

Submissions to be provided regarding relief in defendants' counterclaim

First Plaintiff : Mr C R C Newlinds SC & Mr J C Giles

Second Plaintiff : Mr C R C Newlinds SC & Mr J C Giles

First Defendant : Mr C L Zelestis QC & Mr P K Walton

Second Defendant : Mr C L Zelestis QC & Mr P K Walton

Third Defendants : Mr C L Zelestis QC & Mr P K Walton

Barnes v Addy (1874) LR 9 Ch App 244

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387

1 Vincenzo Fazio (known as Vince) and his wife Guiseppina Fazio, migrated to Australia from Italy in 1952 with their three-month old son, Giacomino Fazio (known as Jack). Their second child, Ridolfo Rosario Fazio (known as Rudy) was born in Perth in 1961. Their third child, Sarina (now Sarina Koleszko) was born in Sicily in 1967 while the family was visiting Italy. (Because many of the participants in the events giving rise to these proceedings have the same surname, I will refer to members of the Fazio family by their first names only. I mean no disrespect by this practice.)

2 In 1956 Vince started a limestone quarrying and stone masonry business known as Italia Limestone Company (Italia Limestone), in partnership with a number of other Italian immigrants. The composition of the partnership changed over the years, as some proprietors left, and were replaced by others. By the late 1960s, the proprietors of the business were members of the Fazio family, members of the Mignacca family and members of the Catalano family. At some point around then, or perhaps in the early 1970s, Vince and Guiseppina brought Jack into the partnership, giving him an equal portion of their share in the partnership business. In December 1975, the Fazio partners acquired the interest of the Mignacca partners, whereafter the Fazio partners held two-thirds of the interest in the partnership, and the Catalano partners one-third.

3 Jack worked in the partnership business and was paid wages. However, there was disharmony between Jack and his father, Vince, and in 1984, Jack ceased to work in the business, although he asserts that from time to time thereafter he did have some participation in the affairs of the business. Generally speaking, after 1984, the documents and records relating to the partnership do not record or suggest that Jack remained a partner.

4 The relationship between Jack and his father deteriorated further over time, and in the five years prior to Vince's death in 2007, there were a number of incidents involving hostility and aggression as between the two men. Jack's relationship with his father impacted adversely upon his relationship with his siblings, and he became estranged from them, as well as from his parents.

5 In the meantime, despite some fluctuating fortunes, particularly in the early part of the 1990s (when the business was under significant financial pressure), the partnership's business prospered, and assets were acquired by various corporate entities related to and controlled by the proprietors of the partnership. Often those assets included land in proximity to the outer suburbs of Perth, which was quarried for limestone used in building houses and in other construction work in those suburbs, or in coastal groynes. As Perth expanded in size, land which had been purchased for quarrying became suitable for residential development and increased substantially in value. The business also became a substantial enterprise, and had a significant turnover.

6 In 1994 and again in 2002, in the course of family gatherings, Jack complained that Rudy was being given preferential treatment by Vince, in the form of revenue from the Italia Limestone business. This led to an altercation on each occasion. In the latter part of 2003, Jack wrote to the partnership accountants asserting that he was a partner and seeking access to all partnership records which they held. The accountants did not state a definitive position on the subject of his interest in the partnership, but refused him access to the partnership records which they held.

8 These proceedings were commenced on 12 March 2008. In these proceedings Jack and Maria assert that Jack remained a partner in the business at all times, or alternatively, that his mother, and the estate of his late father are estopped from denying that he holds a portion of their interest in the partnership. They further assert that various corporate entities hold assets on behalf of the partnership, as a consequence of which Jack holds an equitable interest in those assets. They also assert that Jack relied to his detriment upon representations by his father to the effect that he would receive one-third of all family assets before or upon his death, so that the executors of that estate and the corporate entities holding assets acquired by Vince, or on his behalf, are now estopped from denying that assertion, and are obliged to fulfil Jack's expectation.

9 For the reasons which follow, I have concluded that the plaintiffs' claim should be dismissed. I am satisfied that Jack resigned from and surrendered his interest in the partnership in 1984 with the concurrence and agreement of the other partners. I have concluded that there were no promises or representations by Vince or Guiseppina to Jack or Maria, or conduct inducing a mistaken belief on their part, upon which Jack relied to his detriment, such that either Guiseppina or the estate of Vince would be estopped from denying Jack an interest in the partnership, or in the assets of the partnership or in one-third of Vince's estate. I am also satisfied that there is no basis for concluding that the various assets held by the corporate entities which are party to these proceedings are held on trust for the partnership or the proprietors of the partnership, save to the extent that those proprietors have interests in express trusts of which the relevant company is trustee, or an interest in the company itself as a shareholder.

10 The plaintiffs are Jack Fazio and his wife, Maria. They married in April 1977, and have three sons, Vincenzo (who I shall call Vince junior as the parties did), Anthony and Phillip. Unfortunately, in the family schism which gave rise to these proceedings, Vince junior has become aligned with members of the family other than his parents. He and his wife, Alissa, gave evidence on behalf of the defendants.

11 The first two defendants are Rudy and Guiseppina Fazio respectively. The third defendants are Mr and Mrs Catalano, the proprietors of a one-third interest in the partnership to which I have referred. The first to third defendants were represented by the same solicitors and counsel.

12 The remaining ten defendants took no active part in the proceedings and all but one filed appearances submitting to any orders the court might make.

13 The fourth defendant is the executor of the estate of Vince Fazio.

14 The fifth defendant is Anham Nominees Pty Ltd (Anham). It was incorporated in January 1977, and is the trustee of the V Fazio Family Trust, which was established by a deed of trust dated 5 May 1977. The trust is a discretionary trust. The beneficiaries of the trust are the children of Vince, their children and grandchildren, and Vince and Guiseppina. Anham is sued in its own right and in its capacity as trustee of the V Fazio Family Trust.

15 The sixth defendant is Roadstone Quarries Pty Ltd (Roadstone). It carried on the business previously carried on by the partnership between 2000 and 31 December 2006.

16 Danehill Nominees Pty Ltd (Danehill) is the seventh defendant. It was incorporated in May 1978, and operates as the trustee of the FSC Unit Trust, which was established by deed of trust dated 12 July 1978. 150 units have been issued in the FSC Unit Trust. 100 of those units are held by Anham as trustee for the V Fazio Family Trust. The remaining 50 units are held by Dangan Nominees Pty Ltd (Dangan) as trustee for the Catalano Family Trust. It will thus be seen that, generally speaking, the units in the FSC Unit Trust, of which Danehill is the trustee, are held by companies representing the Fazio and Catalano families, and in the same proportion as those families held their interest in the Italia Limestone Partnership. Danehill is sued in its own right and in its capacity as trustee of the FSC Unit Trust.

17 Dangan is the eighth defendant. As I have mentioned, it is the trustee of the Catalano Family Trust. Dangan is sued in its capacity as trustee of the Catalano Family Trust.

18 Italia Holdings Pty Ltd (Italia Holdings) is the ninth defendant. It holds land in Wattleup Road, Wattleup which the plaintiffs assert is held on trust for the partnership.

19 Renmore Pty Ltd (Renmore) is the tenth defendant. It was incorporated in December 1986, and is the trustee of the Renmore Trust which was established by deed of trust dated 5 December 1986. The trust is a unit trust. 60 units in the Renmore Trust have been issued. 40 of those units were held by Vince prior to this death, and following his death, by Eight Decades Pty Ltd, in each case as trustee of the Vince Fazio Trust. The remaining 20 units have at all times been held by Dangan as trustee for the Catalano Family Trust. Again, it will be seen that the unit holdings in the Renmore Unit Trust generally reflect the family interests in the partnership. Renmore is sued in its own capacity, and as trustee of the Renmore Trust.

20 The Vince Fazio Trust was established by a deed of trust dated 25 July 1985. It is a discretionary trust. The beneficiaries are Vince, Rudy and Sarina.

21 Italia Stone Group Pty Ltd (Italia Stone) is the eleventh defendant. It has carried on the business previously carried on by the partnership following the transfer of that business from Roadstone to Italia Stone with effect from 1 January 2007.

22 Blueland Holdings Pty Ltd (Blueland) is the twelfth defendant. It is sued in its own capacity, and as trustee of the Ridolfo Fazio Family Trust.

23 The thirteenth defendant is Ridgecap Pty Ltd (Ridgecap), which is sued in its own capacity and in its capacity as trustee for the S & R Catalano Family Trust.

24 The pleadings occupy more than 250 pages of text. What follows is an attempt to distil from the pleadings the main issues which remained alive at the conclusion of the trial.

25 The plaintiffs assert in their statement of claim that Jack Fazio was first admitted to the Italia Limestone partnership in or about 1961 (therefore at the age of nine), with a one-ninth interest in the partnership, being one-third of the interest held by him and his parents, which was in turn a one-third interest in the partnership. However, at trial, the plaintiffs presented their case on the basis that Jack became a partner not later than 1968, when a partnership agreement was prepared showing Jack as the proprietor of one-ninth share in the partnership. Whether or not that agreement was ever executed by all the parties to it is one of the issues I have to determine, given that the only copy of the agreement currently in existence has not been executed by Mr and Mrs Mignacca.

26 The plaintiffs assert that Mr and Mrs Mignacca retired from the partnership in or about January 1976, with the result that a new partnership was established in which Jack and his parents each held a two-ninth interest, and Mr and Mrs Catalano each held a one-sixth interest. They assert that the partnership continued, with those proprietors holding those interests until Vince died on 5 August 2007, whereafter his interest passed to his estate. They further assert that the current partners, other than Jack and Mr and Mrs Catalano, have denied, and continue to deny Jack's interest in the partnership.

27 The plaintiffs further assert that at some point between 1979 and 1983, or alternatively, in or about 1988, Rudy was purportedly admitted as a partner in the partnership. They assert that Jack has not consented, and does not consent to the admission of Rudy to the partnership with the consequence that Rudy is not a partner.

28 The plaintiffs further assert that the partnership agreement prepared in 1968, and to which I have referred, contains provisions prohibiting partners from transferring any of their share or interest in the partnership. They assert that each of Vince and Guiseppina breached that prohibition by purporting to give Rudy a share of their interest in the partnership. They further assert that under the terms of the 1968 agreement, in the event of breach, a partner not in breach is entitled to serve notice requiring the partner or partners in breach to retire from the partnership, after which the continuing partners have the option of acquiring the share of the retiring partner.

29 The plaintiffs assert that in late February and early March 2008, Jack exercised the rights conferred upon him under the 1968 agreement, by serving notices of breach and of exercise of option to purchase upon Guiseppina and Vince's estate, with the consequence that he is entitled to acquire their interests in the partnership.

30 In the alternative, Jack seeks an order for the winding up of the partnership either at the time he purportedly retired in or about 1984, or at the time the partnership dissolved upon the admission of Rudy as a partner, or as a result of its dissolution upon the death of Vince in 2007.

31 In the alternative, the plaintiffs assert that by reason of the doctrine of estoppel, Rudy, Guiseppina and the executor of Vince's estate hold two-ninths of the partnership on trust for Jack, and one-third of Vince's estate, and one-third of a broader class of assets described as 'the Fazio Family Assets' on trust for Jack. Those assets are particularised, and essentially comprise every asset acquired by Vince, or in which Vince acquired an interest, through any corporate entity or trust.

32 In support of that assertion, the plaintiffs plead that at all material times since 1961 Jack believed and expected that two-ninths of the partnership was his, and that one-third of the Fazio family assets other than the partnership assets would be transferred to him on or before the death of Vince.

33 The plaintiffs assert that Vince knew of Jack's belief and expectation, and provide particulars of that assertion which refer to a series of events and transactions between 1976 and 2005.

34 The plaintiffs further assert that Jack relied upon that belief and expectation to his detriment, by providing advice to Vince in relation to aspects of the partnership's business, and making various contributions to the partnership and to the wealth of the Fazio family, which are particularised. The actions taken by Jack which are said to support that proposition are alleged to have occurred between 1973 and 1995.

35 The plaintiffs further assert that Vince knew of, encouraged and induced Jack's belief and expectation, which is said to give rise to a promissory estoppel. In addition, the plaintiffs assert an entitlement to a proprietary estoppel arising from benefits conferred in respect of assets owned by the defendants, or in which they have an interest.

36 The plaintiffs further assert that various corporate entities, some of which are defendants and some of which are not, hold assets on trust for the partnership, and that as a result Jack, as a partner, is entitled to an interest in those assets.

37 Jack seeks declaratory relief, or alternatively, orders winding up the partnership or requiring payment of his share of partnership profits since his resignation, together with an order for the taking of all necessary accounts and assessments.

38 The defendants admit that Jack was admitted to the partnership in or before December 1975. However, they deny that the 1968 agreement was ever fully executed, or that the partnership was ever conducted according to its terms, and assert that the partnership agreement was oral.

39 They assert that Rudy was admitted as a partner on 18 June 1979, and that Jack retired from the partnership with effect from 1 July 1984, pursuant to an agreement made on or about 22 June 1984, to the effect that he relinquished all his interest in the partnership in favour of the continuing Fazio family partners.

40 The defendants further assert that Jack received consideration in return for his retirement from the partnership, in the form of Vince agreeing to make available to Jack and Maria the proceeds of sale of a property at 223 South Terrace, Fremantle, the transfer of an estate in fee simple in land at 21 Barrett Street, Spearwood, the preparation of a set of architect's plans for the construction of a house at 21 Barrett Street, Spearwood at Vince's expense, and to release Jack from all debts and liabilities of the partnership.

41 In the alternative, the defendants assert that Jack abandoned his interest in the partnership, or alternatively, his interest in the partnership was mutually abrogated, or in the further alternative, that Jack repudiated the partnership agreement, which repudiation was accepted by the continuing partners.

42 The defendants further assert that Jack's claims are precluded by the provisions of the Limitation Act 1935 (WA), or if that Act does not apply directly to the causes of action asserted, by analogy to the Act. Further, the defendants assert that Jack acquiesced in the conduct of which he now complains - namely, the denial of his interest in the partnership. Further, they assert that Jack's delay in bringing these proceedings is such that he should be denied relief in equity, by the operation of the doctrine of laches.

43 The defendants further assert that Jack is estopped from claiming the relief he seeks because of his failure to participate in the business or affairs of the partnership, his participation in activities unrelated to the affairs of the partnership and, in some cases, adverse to the interests of the partnership and his failure to assume his liabilities and responsibilities as a partner.

44 The defendants further allege that various benefits were conferred upon Jack and Maria because Jack was not a member of the partnership. They assert that if Vince and Guiseppina had known that Jack intended to assert an interest in the partnership, they would not have conferred those benefits upon Jack and Maria.

45 By their counterclaim, the first to third defendants seek declarations as to the business and assets of the partnership since 1999.

46 It will thus be seen that the principal issues which I have to determine are:

(1) Was Rudy admitted to the partnership in or about 1979 or perhaps at some later date?

(2) Did Jack retire from the partnership by mutual agreement in 1984?

(3) If Jack did not retire from the partnership in July 1984, did he abandon his interest in the partnership, or was there a mutual abrogation of that interest, or did he repudiate the partnership agreement, which repudiation was accepted by the continuing partners?

(4) Is Jack now estopped from asserting an interest in the partnership?

(5) Are Guiseppina and the estate of Vince estopped from denying that Jack is entitled to one-third of their interest in the partnership?

(6) Has Jack validly exercised an option to acquire the interest of each of Guiseppina and the estate of Vince in the partnership such that he can now enforce the purchase of those interests?

(7) Is Jack entitled to an order winding up the partnership, and if so, with effect from what date?

(8) Are the defendants estopped from denying Jack's entitlement to one-third of the various assets described as the Fazio family assets?

(9) Are the various assets identified in the pleadings held by various corporate entities on trust for the partnership?

(10) Are Jack's claims precluded by the Limitation Act, acquiescence, or the equitable doctrine of laches.

47 These are the principal issues which I have to determine. However, because of the myriad events and transactions which are said to be relevant to the resolution of these principal issues, there are a number of subsidiary issues which I will have to determine, including in particular a number of issues relating to a number of transactions undertaken by the participants in the events giving rise to these proceedings over a lengthy period of years.

48 In this section of my reasons I will set out the detailed findings of fact which I make from the evidence adduced at trial. Where there are conflicts in that evidence, I will set out my reasons for the findings which I have made. It is, however, appropriate for me to commence with some general observations about the view I have taken of the evidence.

49 A significant number of witnesses were called, including many (but not all) of the principal players. Of course, one of the most significant players, Vince, is deceased. The other principal witnesses were required to give evidence of events which took place over the course of many years. One of the most significant periods in the history of the various events involving the Fazio family which were addressed by the evidence was the period between 1982 and 1984, leading up to Jack's departure from full-time engagement in the Italia Limestone business. That period was more than 25 years prior to the trial. It would not be reasonable to expect any witness to have a precise recollection of the exact sequence of events, or of particular dates, or of the precise terms used in conversations at that time. Accordingly, I have allowed a significant degree of latitude in evaluating evidence given by witnesses of events and conversations which took place many years ago.

50 It is also clear from all the evidence I have heard that over the years a profound schism has developed within the Fazio family. The conflict between Jack and his father, Vince, was protracted and increasingly bitter. It eventually reached the point where their differences were irreconcilable, although that point does not appear to have been reached until a few years prior to Vince's death. Other members of the family became embroiled in this conflict, and clear lines of demarcation emerged between the factions within the family. The bitterness which resulted has, predictably and understandably, had an impact upon the perceptions of many of those who gave evidence at trial. It was inevitable that, when giving their evidence, their perspective of the events which they witnessed would be influenced by the position which they occupied in the family conflict to which I have referred. This observation extends not only to members of the Fazio family, but also to other witnesses who became aligned with one of the groups within the family conflict, such as Mr Levin, and Ms Rebelo. In evaluating the oral testimony of the witnesses, in most cases, it has been necessary for me to take this factor into account, and to recognise that very few of the witnesses called can be said to have been impartial and that, without any suggestion of dishonesty or invention, their evidence has inevitably been influenced by their partiality.

51 Given the inherent doubts which must attend oral recollections of events which occurred many years ago, in most instances decades earlier, and the partiality of most of the witnesses, I have placed significant weight upon contemporaneous documentary evidence and upon the inferences properly drawn from that evidence. Where it is possible to establish objective facts from that evidence, I have then assessed the oral testimony in light of the inherent probabilities of a particular version of events, in the context of the established objective facts.

52 I am not convinced that any witness gave evidence which he or she knew to be false. As will be seen, however, I have in many instances rejected the oral testimony that was given by one or other witness as a result of the process I have just described. In those instances, generally speaking, I consider that the evidence which I have rejected was given because of the insidious influence and effect of the family conflict which I have described upon the honest recollection and perception of the witness.

53 There are very few instances in which I have relied upon demeanour in making my findings. For example, although I have rejected significant aspects of the testimony given by each of Jack and Maria, I have not placed significant reliance upon their demeanour while giving evidence in arriving at my conclusions. On the contrary, the impression which I formed from their demeanour at the time of giving their evidence was that, in general, each was doing their best to provide truthful answers to the questions posed, but that their perception, and the accuracy of their recollections, have been overtaken by the conflict to which I have referred. In some instances, however, I have concluded that their evidence has been fashioned to assist the case which they seek to advance.

54 There were, however, some witnesses whose demeanour caused me to doubt their credibility generally. Mr Levin and Ms Rebelo were the most significant. Their aggression and hostility during cross-examination, and their evasion of the questions posed caused me to conclude that each had come to court in order to give the evidence which best suited the defendants' case. Of course, that does not mean that all the evidence which they gave was false. However, my impression of their demeanour has meant that, generally speaking, I have not accepted their oral testimony unless it is corroborated by contemporaneous documents or other less contentious evidence, or is inherently plausible.

55 There were also aspects of the evidence given by Rudy and Sarina which caused me to doubt their credibility, although not to the extent of the doubts which I formed in relation to the credibility of Mr Levin and Ms Rebelo. It was clear from their demeanour when giving evidence, that each of Rudy and Sarina, perhaps understandably, were overtly endeavouring to adopt the position which supported the defendants' case. In numerous instances, each evaded questions to which the answers were likely to be detrimental to the defendants' case. On other occasions, they provided answers which were not responsive to the question asked, but which were detrimental to the plaintiffs' case. I have approached their evidence with some reservation.

56 There was a body of evidence led on the broad topic of the deterioration of the interpersonal relationships within the family group. Various assertions were made about derogatory remarks having been made by one or other family member about other members of the family. There are some specific instances of family altercations, such as the Sunday dinner incident in 1994, the baptism lunch incident in 2002, and the altercation in the Italia Limestone office in 2006, where things were said that are directly relevant to the matters in issue, and in particular, on the subject of whether Jack remained a partner. In the reasons that follow I will set out the specific findings I make in relation to those incidents. However, the evidence went beyond those specific incidents, and covered a number of other occasions where things were allegedly said that are not directly relevant to the specific issues in these proceedings, although they do shed light upon the general deterioration of interpersonal relationships within the family group. I have not found it necessary to make specific findings in relation to that broader category of evidence, although I have concluded that the acrimony between Jack and Maria on the one hand, and the other members of the family on the other, ran deeper and started earlier than Jack and Maria suggested in their evidence.

57 There was also a considerable body of evidence led about the work done by Jack in connection with Fazio family business interests prior to June 1984, when the defendants assert that he resigned from the partnership. Because it is common ground that Jack was a partner until at least June 1984, the precise extent of the work which he did, and the contribution which he made to the development and enhancement of the Fazio family businesses is not critical to the resolution of the contentious issues in the case. I accept that the extent of the work which he did is relevant to an assessment of the likelihood of him resigning from the partnership in June 1984, and to an assessment of the likely terms of such a resignation, if it did occur, but it is sufficient for those purposes to make a fairly broad assessment of the extent of his contribution up to that time. I am satisfied from the evidence that Jack undertook significant work in relation to the market gardens and orchards which the family owned (not the partnership), and later worked long and hard, in a labouring capacity, in connection with the limestone business run by the partnership. I am also satisfied that Jack generally considered that he was inadequately remunerated given the extent of the work that he performed. I will make specific findings below in relation to Jack's involvement in major transactions involving the Fazio family businesses, and the partnership prior to June 1984.

58 Jack was born on 27 July 1952 in Sicily. His parents brought him to Australia with them when they migrated in the latter part of 1952.

59 In about 1956, Vince commenced a business quarrying and supplying limestone in partnership with his wife Guiseppina and a number of other Italian immigrants, including Sebastiano Galati, Leo Gigilia, Nino Pruiti, and perhaps his brother, Francesco Fazio. Over time there were various changes in the composition of the partnership which it is unnecessary to chronicle. By 1968 the partnership business was primarily conducted by three men - Vince, Carmelo Mignacca and Sebastiano (Sam) Catalano. The Fazio, Mignacca and Catalano families each had a one-third interest in the partnership, although that interest was spread among family members. In the case of the Catalanos, the interest was held equally by Sam Catalano and his wife, Rosaria (who each held one-sixth shares). In the case of the Mignacca family, the interests were held by Carmelo and his wife, Giacomina (who each held one-sixth shares). In the case of the Fazio family, the interests were held by Vince, Guiseppina and Jack (who each held one-ninth shares).

60 A document was tendered in evidence taking the form of a partnership agreement between the seven persons to whom I have referred, purporting to record the terms upon which they had agreed to carry on business in partnership under the name 'Italia Limestone Co' (tb 1/27). The typed text of the document refers to an agreement made in June 1968, although no particular date in June of that year has been entered in the appropriate place by manuscript. The document appears to have been signed by each of the Fazio partners, and each of the Catalano partners, but has not been signed by either Carmelo or Giacomina Mignacca.

61 The document was found amongst Carmelo Mignacca's papers following his death in February 2003, by his son, Frank Mignacca. Following Vince's death in August 2007, Frank Mignacca, accompanied by his brother, Ross Mignacca, gave the document to Jack.

62 No other version of the document has been discovered by any party to these proceedings. There is no evidence that the document was ever referred to or relied upon by anyone involved in the conduct of the partnership prior to its production to Jack in the latter part of 2007.

63 Clause 12 of the document includes a covenant by each partner that they will not, 'without the consent of the others ... sell or transfer or otherwise dispose of their share or interest in the firm, or any part thereof'. Clause 13 provides that in the event of breach of the partnership agreement by any partner:

[T]he other partners or any of them may within one (1) calendar month after becoming aware thereof by notice in writing request such partner to retire from the partnership and the party receiving such notice shall be deemed to have retired on the date of receipt of such notice.

64 Clause 14 provides that in the event that a partner retires from the partnership pursuant to any of its express provisions, then the other partners, or any of them, may within two calendar months after such retirement exercise an option to purchase the share of the retiring partner. The value of the retiring partner's share is, pursuant to that clause, to be mutually agreed, or in default of agreement, determined by arbitration.

65 Clause 15 provides that the partnership is not to be terminated upon the death of a partner.

66 As I have already noted, Jack purported to enforce these provisions in 2008 when, on about 28 February, he purported to serve notice pursuant to cl 13 upon each of his mother, and the estate of his late father, asserting that they had breached cl 12 of the agreement by transferring part of their interest in the partnership to Rudy. From the findings of fact which I make below, it is abundantly clear that such notice was not served within one month of Jack becoming aware of the purported assignment of an interest in the partnership to Rudy. On or about 6 March 2008, Jack purported to serve notice pursuant to cl 14 of the agreement, exercising the option to acquire the partnership interest of each of his mother and the estate of his late father. It is therefore necessary to determine whether, in 2008, when those notices were served, the 1968 document embodied the terms upon which the partnership was then conducted (assuming, of course, that Jack was still a partner at that time).

67 The first question to be addressed is whether I should infer, from the form of the document and its provenance that it is more likely than not that the document was executed by all partners, including the Mignaccas. The plaintiffs ask me to draw that inference on the basis that if the document was circulated amongst the partners for execution, it is likely that the Mignaccas would have received the document executed by all other partners, and in return provided the document which they themselves had executed to the other partners.

68 This is pure conjecture. The document appears to have been prepared by solicitors. In the normal course, one would have expected those solicitors to secure execution by all parties and attend to the stamping of duly executed copies, which would then be provided to the parties to the agreement. There is no version of the document in existence which suggests that this ever occurred. Nor is there any evidence to suggest that the document has ever been referred to, or relied upon, by any member of the partnership prior to its production to Jack in the latter part of 2007.

69 The Mignaccas retired from the partnership with effect from 1 January 1976. A document has been tendered in evidence taking the form of a draft agreement for dissolution of partnership apparently prepared on 10 May 1976 (tb 1/74). That document recites that the partners of Italia Limestone Co had carried on their business 'under verbal [sic: oral] terms and conditions'. There is no evidence that the draft document was ever finalised or executed.

70 An unexecuted deed of dissolution of partnership was also tendered in evidence (tb 1/83). The document provides that the parties to the deed were to be the seven partners to whom I have referred. That document also recites that the parties had carried on business under the name 'Italia Limestone Co' 'under the verbal [sic: oral] terms and conditions'.

71 That document appears to have been prepared by Messrs Lavan & Walsh, solicitors. It bears the initials 'PEF', which suggests that it was prepared by Mr Pierre Edmond Frichot, who served as Vince's solicitor for many years, until his untimely death in a motor vehicle accident.

72 Although the documents relating to the dissolution of the partnership involving the Mignaccas which were prepared in 1976 and 1977 were not executed, they support the inference, which I draw, that someone involved with the partnership instructed solicitors, at or about that time, that there was no written partnership agreement.

73 Having regard to that inference, and the fact that there is no evidence that the 1968 document was ever referred to or relied upon by any member of the partnership prior to its production to Jack in late 2007, I am not prepared to draw the inference propounded by the plaintiffs to the effect that the document was executed by the Mignaccas. I therefore find that the document was never executed by all partners. As I have mentioned, there is no evidence that the document was otherwise adopted by the partners so as to govern the terms of their partnership, and I therefore conclude that the 1968 document was never of any effect.

74 Further and in any event, as I have mentioned, the partnership to which the 1968 document related was dissolved by the retirement of the Mignaccas from the partnership on 31 December 1975. As there is no evidence that the members of the new partnership which was created with effect from 1 January 1976 adopted the 1968 document as a document which embodied the terms of their agreement (indeed, there is evidence to the contrary, in the form of the draft documents to which I have referred), it is, I think, clear on any view that the 1968 document did not govern the partnership either at the time of Vince's death in August 2007, or at the time Jack purported to serve notices pursuant to its terms in 2008.

75 I do not overlook Jack's evidence to the effect that he saw the 1968 document in or about 1979, when he was working full-time for Italia. He asserts that he saw it in a box of documents at the Italia office. However, if he did see it (which I doubt), he does not assert that he saw a version of the document signed by the Mignaccas.

76 Jack went to boarding school in New Norcia from 1966 to 1972 inclusive, between the ages of 13 and 20 years. He was required to repeat at least one and perhaps two years of his studies at New Norcia, and left that school without qualifying for university entrance. However, after returning to Perth, he attended John Curtin High School during 1973 and matriculated. He commenced studying law at the University of Western Australia in 1974, but failed the exams at the end of that year. In 1975, he enrolled to study accounting at the Western Australian Institute of Technology, but dropped out of his studies later that year. At about this time he was also working in the family's market garden. Later he also worked in the limestone business.

77 Jack met Maria in late 1975 and they were engaged to marry on 21 August 1976. They married on 2 April 1977.

78 In the meantime, the limestone business conducted by the partnership had been adversely affected by the increasing practice of using cement slabs as housing foundations instead of limestone blocks. The business diversified into quarrying and supplying limestone for use as road rubble, and the supply of limestone blocks for substantial earthworks.

79 In addition to his interest in Italia Limestone, Mr Mignacca operated a home building business in which the Fazios had an interest. In 1975, it was agreed that the Fazios would surrender their interest in the building business, and the Mignaccas would surrender their interest in the limestone business. Through that arrangement the Fazio family acquired the Mignacca family's interest in the limestone business. As from 1 January 1976, the Fazio family collectively held a two-thirds interest in the limestone partnership, and the Catalanos, a one-third interest. The Fazio family interest was held by Vince, Guiseppina and Jack in equal shares, and the Catalano interest by Sam and Rosaria in equal shares.

80 Jack asserts that he identified a property situated at 14 - 16 South Terrace, Fremantle known as Casablanca as a potential acquisition, and recommended it to his father (Jack xn 26). In November 1973, the property was acquired by Vince and Guiseppina as joint tenants for a price of just under $64,000 (tb 1/65). The property remains in the family and is now worth a lot more.

81 As I have mentioned, during 1973, Jack was studying for his matriculation at John Curtin High School. In cross-examination he accepted that he had no capacity to contribute financially to the purchase of the property (ts 421.5). It follows that Jack was not foregoing any opportunity by recommending the property to his father.

82 The defendants assert that I should not accept Jack's uncorroborated assertions as to his role in the purchase. However, Jack's evidence on this topic is not contradicted, nor is it glaringly improbable. I am therefore prepared to accept that he played some role in the procurement of the Casablanca property. I do not consider it is necessary to determine the precise extent of that role, as whatever its extent, it did not involve any foregone opportunity, and is incapable of creating any equitable interest in the property. Although Jack was a member of the partnership at this time, there can be no suggestion that the property was acquired on behalf of the partnership (as the Catalanos and Mignaccas would then have had an interest). Any role which Jack played in the procurement of the property is properly referrable to his interest, as a son, in acquisitions made by his parents.

83 Jack gave evidence that in about 1974, when holding power of attorney for his father (who was in Italy) to be exercised to acquire a house in Essex Street, Fremantle, he learnt about another property, an old boarding house in that street, which was a better acquisition (Jack xn 148). He asserts that he recommended the boarding house to his father, who agreed, and acquired the property in or about 1974 for $33,000. The property was sold during the 1980s for about $500,000. Again, Jack accepted in cross-examination that he had no capacity to make any financial contribution to the purchase of this property at the time it was acquired (ts 421.4).

84 The defendants assert that I should reject Jack's uncorroborated evidence on this topic. However, I take the same view as I have taken in relation to the Casablanca property. While Jack's evidence is uncorroborated, it is not contradicted, nor glaringly improbable. It is unnecessary to determine the precise extent of his involvement, if any, in the acquisition of the Essex Street boarding house. This is because at the time of its acquisition, Jack was still a student and there was not any opportunity foregone. Nor could his role have given rise to any equity in the property, nor could it be suggested that the property was acquired on behalf of the partnership of which Jack was a member (and of which the Catalanos and Mignaccas were also members).

85 Jack gave evidence that in about 1975, when working in the market garden, he came to know the owner of Lot 11, Hurst Road, Henderson (Jack xn 157). He asserts that he observed a significant limestone resource on the property when he visited it, and recommended to his father that he consider acquiring it. Jack states that he introduced his father to the owner, who agreed that Vince would have first right of refusal if he ever decided to sell the land.

86 A document was tendered in evidence which establishes that in August 1992, the owners of that property granted Vince an option to acquire the property for the sum of $200,000 (tb 13A/7211). The option was to remain current until 31 October 1992.

87 Other documents tendered in evidence establish that Vince, as trustee of the Fazio Family Trust, entered into a contract to acquire the land for $230,000 in April 1996 (tb 24/11467), and that settlement of the purchase took place in May 1996 (tb 24/11482).

88 In cross-examination, Jack accepted that he had no part whatever in the negotiations relating to the grant of the option in 1992, or the acquisition of the land in 1996 (ts 429).

89 Again, the defendants assert that I should reject Jack's uncorroborated testimony on this topic. However, it is unnecessary for me to determine that contention because, even taking Jack's evidence at its highest, it is highly improbable that whatever he did in 1975 played any significant part in Vince's acquisition of the property more than 20 years later. Given that Jack accepts that he played no part whatever in that acquisition, whatever he may or may not have done in 1975 is incapable of giving rise to any possible equity in the property. Nor was any opportunity foregone by Jack in 1975, as no opportunity arose until many years later, at a time when he was no longer involved. Nor was the property acquired for the partnership, but, rather, by Vince as trustee of the Fazio Family Trust.

90 The property situated at 223 South Terrace was acquired by Vince during 1976. The contract for its acquisition has not been produced in evidence, but a settlement statement relating to the transaction and dated 31 May 1976 has been received in evidence, which shows that the contract must have been entered into prior to that date (tb 1/80). The transfer of land from the vendor to Vince is also in evidence, and is dated 25 June 1976 (tb 1/81).

91 Jack and Maria met in late 1975 and, as I have mentioned, they were engaged on 21 August 1976. It follows that the property was acquired by Vince several months before their engagement and well before their wedding on 2 April 1977.

92 Jack's evidence-in-chief was to the effect that he had wanted to buy the property at 223 South Terrace, and just before his wedding, asked his father to pay him sufficient funds by way of back wages or profit distribution from the partnership to enable him to acquire it (Jack xn 54). He asserted that his father replied by saying that he would buy the property for him as a wedding gift, but that he would hold the title until he was sure that the marriage would last. His evidence was that the property was acquired shortly before the wedding.

93 That evidence is inconsistent with the documents which establish that Vince contracted to acquire the property prior to Vince and Maria becoming engaged, and within about six months of them commencing their friendship. It is unlikely that Vince would have been acquiring the property for Jack and Maria at that time.

94 Jack's attention was drawn to the inconsistencies between his evidence-in-chief and the documents establishing the time of Vince's acquisition of 223 South Terrace during cross-examination. Jack sought to justify his evidence-in-chief by placing an entirely artificial construction upon the words he had used (ts 336). His dissembling answers, and his reluctance to acknowledge that his evidence-in-chief was wrong, when plainly it was, reflect adversely upon his general credibility.

95 Maria's evidence-in-chief also misstates the sequence of events relating to the acquisition of 223 South Terrace. She asserted that the property was promised to her and Jack as a wedding present, and that she thought it was strange, in that context, that the property was not purchased in Jack's name (Maria xn 14 and 21). Given the timing of the acquisition, the reason the property was purchased in Vince's name was because, at the time it was purchased, it was not purchased as a gift for Jack and Maria.

96 However, the fact that Jack and Maria have misstated the sequence of events relating to the acquisition of 223 South Terrace does not mean that the general thrust of their evidence, to the effect that Vince promised the property to them as a wedding present, must be rejected. That general thrust is corroborated by a body of other evidence. During 2007, a statement of the evidence-in-chief to be given by Vince at the trial of proceedings in this court concerning the Mandurah land (Tranchita v Danehill Nominees Pty Ltd, CIV 1124 of 2004) was prepared, presumably on Vince's instructions, and signed by Vince (tb 35A/17284). Paragraph 60 of that statement asserts:

When Jack Fazio and Maria married, Guiseppina and I gave them as wedding presents:

(a) a shop and house on South Terrace; and

(b) a block in Barrett Road, Spearwood.

97 The assertion concerning the block in Barrett Street, Spearwood is plainly incorrect, as that property was not acquired until many years after Jack and Maria married. However, the assertion in respect of the property on South Terrace is corroborated by Vince's will made on 18 September 2006, in which he recited in that he had given Jack assets during his lifetime, including as a gift in the 1970s, a shop and house on the corner of South Terrace and King William Street, Fremantle (cl 25).

98 Evidence was also given by Guiseppe Monastra. He is the husband of Jack's cousin, Nancy, who is the daughter of Vince's brother, Frank. Mr Monastra worked for Vince as a plastering contractor for about 15 years after migrating to Australia in 1977. He became very friendly with Vince. His evidence was that at about the time Jack and Maria were married in 1977, Vince told him that the house in South Terrace was a wedding gift to Jack (G Monastra xn 14). According to Mr Monastra, Vince repeated that statement on many occasions. Sarina also confirmed that the property was discussed as a wedding gift within the family (ts 742).

99 Further corroboration is provided by objective events which are not in issue. Shortly after Jack and Maria married, Vince spent significant amounts of his own time and money renovating and refurbishing the property. There was never any suggestion that Jack and Maria should reimburse Vince for this work, which is consistent with the notion that the property was a gift to them. Vince also acquired a significant quantity of lighting, at his expense, for use by Jack and Maria in the lighting business which they subsequently established in that part of the premises which comprised a shop, and this was also a gift.

100 Further, in later years, after the lighting business had been wound down and was no longer conducted from those premises, Jack and Maria vacated the property and leased it to others. They received the rental (Jack xn 81). There is no evidence to suggest that they had to seek Vince's permission to do any of these things. On the contrary, the evidence strongly suggests that Jack and Maria treated the property as their own, without any interference by Vince, after they married.

101 That conclusion is strongly reinforced by the fact (elaborated below) that Jack proffered the South Terrace property in part payment for the Mandurah land in early 1984, at a time when that land was to be acquired by Jack and Maria and the Merlinos, and before there was any suggestion that Vince would be taking an interest in the Mandurah purchase (Jack xn 99). That fact demonstrates that Jack considered that he was able to commit the South Terrace property to a transaction without Vince's prior consent. That commitment also occurred before there can be any suggestion that either the South Terrace property, or the transfer of title to the South Terrace property was being proffered by Vince as partial consideration for Jack's retirement from the partnership. Accordingly, I reject Rudy's evidence to the effect that Vince said to him that the use of the South Terrace land as consideration for the purchase of Jack and Maria's interest in the Mandurah land was linked to Jack's retirement from the partnership (Rudy xn 380).

102 Legal title to the South Terrace property was in fact never transferred to Jack and Maria. The property remained registered in Vince's name until it was transferred to the vendor of the Mandurah land as part of the consideration for the acquisition of that land. It may be that the land was not transferred into Jack and Maria's name because Vince was concerned that if the land was transferred into Maria's name, it would be lost to the family in the event that Jack and Maria's marriage did not last. There is some support for that view in Maria's evidence (ts 555), however, it was denied by Guiseppina in cross-examination (ts 782). It may also be that the transfer did not take place because it would have incurred stamp duty unnecessarily, given that the title was held within the family. However, even if Vince was initially reluctant to transfer title to Jack and Maria because of uncertainties about the durability of their marriage, I am satisfied that this was no longer an operative factor in early 1984, when Jack initially committed the South Terrace property to the Mandurah transaction. Jack and Maria had by then been married for almost seven years. By 1984, Maria had borne Jack three sons, and Vince could not have entertained any reasonable doubt as to their commitment to each other.

103 For these various reasons I find that although the South Terrace property was not initially acquired by Vince as a gift for Jack and Maria, he promised the property to them as a wedding gift at the time of their wedding. I further find that the gift was unconditional, and that if there was any initial reluctance by Vince to transfer the property into the names of Jack and Maria, there was no such reluctance in 1984. I further find that between 1977 and 1984, Jack, Maria and Vince proceeded upon the common understanding that Jack and Maria were the owners of the South Terrace property, notwithstanding that it had not been transferred to them (that is, in legal terms, Jack and Maria were donees in equity but not in law).

104 Rudy gave evidence-in-chief to the effect that he had never heard any suggestion that South Terrace had been a wedding present for Jack and Maria (Rudy xn 400). He maintained that assertion notwithstanding his acceptance that he probably read Vince's witness statement at the time the Tranchita proceedings were under way, in which Vince asserts that the South Terrace was a wedding gift for Jack and Maria (ts 685). His steadfast maintenance of the proposition that Vince never said to him, or in his presence, that the South Terrace property was a gift to Jack and Maria is highly improbable, given all the other evidence to which I have referred, and the inherent likelihood of a gift of that magnitude being discussed within the family. Further, Sarina confirmed in cross-examination that Rudy had been involved in such discussions (ts 742). Rudy's maintenance of his improbable position reflects adversely on his general credibility.

105 As I have mentioned, after they married, Jack and Maria moved into 223 South Terrace and started a lighting business from the shop which formed part of those premises. Vince purchased part of the initial stock of lighting as part of his gift to the newly married couple. Jack worked full-time in the lighting business in 1977 and 1978, although in late 1978 he returned to work part-time in the Italia Limestone business. During 1979, he commenced working full-time for the limestone business, leaving Maria to run the lighting business. That business ceased to operate from the shop premises at South Terrace in the latter part of 1981, although the remaining stock, with some additional purchases to make up orders, was sold sporadically over the next few years.

106 Jack asserts that in or about 1979, when his father was in Italy, he learnt that a property adjoining the Casablanca property was available for sale. He further asserts that he telephoned his father in Italy and suggested that they negotiate for the purchase of the property. His father accepted that suggestion, and Jack obtained an offer to purchase the property which he retained until his father returned from Italy and accepted the offer. The transfer relating to the land tendered in evidence suggests that the agreement for the acquisition of the property may in fact have been entered into in late 1978, rather than 1979 (tb 1A/259). The property was in fact acquired by Anham, and was still owned by that entity at the time of Vince's death, when it had appreciated very significantly in value.

107 The defendants assert that Jack's uncorroborated evidence as to his role in the acquisition of this property should be rejected. However, that evidence is not contradicted, nor is it inherently implausible. But even taking Jack's evidence at its highest, it does not disclose any opportunity foregone by Jack, nor any conduct on his part which would be capable of creating any equitable interest in the property in his favour.

108 In 1979, Jack identified a warehouse for sale at 5 Beach Street, Fremantle. He introduced his father to the property, and his two cousins, Sam Fazio and Vince Calalesina. It was agreed that the property would be purchased through a syndicate representing essentially four interests. Vince's quarter interest was acquired through Anham. Sam Fazio acquired a one-fourth interest, as did Vince Calalesina and his wife, as joint tenants, as did Jack and Maria, as joint tenants.

109 Although Jack's evidence is that the property cost approximately $73,000 (Jack xn 152), the transfer which is in evidence (tb 1A/294) reveals that the purchase price was $80,000.

110 According to Jack, each holder of a one-fourth share contributed $5,000 towards the purchase, and the balance was borrowed.

111 The property was rented, and the net rental, after deducting costs, was distributed amongst the syndicate members according to their interests (tb 3/1147). In May 1992, Jack and Maria sold their interest in the property for a substantial profit. These facts are not contentious.

112 However, I digress to observe that I am quite unable to see how they support the plaintiffs' case. Although Jack asserts that he suffered detriment in the form of his time and effort spent locating and negotiating the acquisition of the property, those efforts were undertaken in the advancement of his own interests, as a purchaser of an interest in the property. There is no suggestion that the equitable interests in the Beach Street property were held upon trust for any different entities, or in any different proportions than the legal interests. There is no suggestion that the partnership was involved in the transaction, as the Catalanos did not have an interest. If anything, the transaction shows that as early as 1979, Jack and Maria took a specific interest in an investment, in their own names, using their own money, as did Vince, albeit through a corporate vehicle. This is one of the many transactions which count against the plaintiffs' proposition that all assets acquired, in whatever names and by whatever entities, should be regarded as 'Fazio family assets', or partnership assets.

Was Rudy admitted to the partnership? - 1979

113 According to the records maintained, pursuant to the provisions of the Business Names Act 1962 (WA), on 25 June 1979, a document was lodged pursuant to the provisions of that Act asserting that, with effect from 18 June 1979, 'Randolfo [sic: Ridolfo] Fazio' commenced carrying on business under the name Italia Limestone Co, in addition to the persons previously carrying on business under that name (tb 1/133). The document which was lodged in June 1979 is no longer available, but its effect has been recorded by the department responsible for the maintenance of business name records. There is no reason to doubt that a notice to that effect was lodged on the date shown in the register. Whether, and if so when, Rudy became a partner in Italia Limestone is one of the contentious issues in these proceedings, to which I will return much later in these reasons.

114 Jack asserted in his evidence that in 1979 he spent a lot of time looking for new limestone resources to assist Italia Limestone to compete with one of its significant competitors - WA Limestone (Jack xn 165). He asserts that he found a property in Gibbs Road, Wanneroo on which he observed a high ridge of limestone in the middle of the property. The property bore a sign which suggested that it was to be subdivided in the future.

115 According to Jack, he contacted the selling agents and obtained information as to the lots which were for sale. He was directed by those agents to the owner, Mr Godecke, with whom he spoke (Jack xn 166).

116 Jack asserted that after making initial contact with Mr Godecke, he took Vince out to meet Mr Godecke with a view to negotiating the purchase of the land containing the limestone resource. He asserts that he participated in those negotiations, which led to the acquisition of a valuable limestone resource.

117 Guiseppina asserts in her evidence that Jack had nothing to do with the identification of the Wanneroo land, although it is not clear from her evidence just how she might be in a position to know, one way or the other, about the degree of Jack's involvement (Guiseppina xn 299).

118 At all events, the documents tendered in evidence establish that at some time prior to October 1982, Danehill obtained an option to acquire a parcel of the land (tb 2/624). Further, by agreements dated 27 October 1983, Vince and Guiseppina contracted to acquire two undivided third shares in lots 103 and 106, and Sam and Rosaria Catalano contracted to acquire the remaining undivided third share in each of those lots (tb 2/839 and tb 2/847). Transfers of lots 103 and 104 to the Fazios and the Catalanos in the interests I have described were executed in October 1983 (tb 6A/3025 and tb 6A/3042), and in respect of lot 106, in December 1985 (tb 4/1975.1).

119 Other lots in the same area were purchased by other related entities years later. Lot 102 was purchased by Renmore in September 1989 (tb 10/5148), lots 105 and 107 by Rudy, Sarina and her (now) ex-husband in 1994, when Danehill was under financial pressure from its bankers (tb 10/5518), and lot 101 was purchased by Vince (as to two third shares), and Dangan (as to a one-third share) in August 1997 (tb 26/12454.5). Jack does not suggest that he was involved in any way in these later purchases.

120 There is contention between the parties as to the extent to which Jack was involved, if at all, in identifying the land and in the initial negotiations with the vendor. His evidence on the topic is uncorroborated (Mr Godecke is apparently not well enough to give evidence), and is only contradicted by Guiseppina's general assertions. However, it seems to me that nothing turns upon these contentions because, as Jack accepts, he was a partner in Italia Limestone at the time negotiations took place for the acquisition of an interest in some of the land by Vince on behalf of the persons and entities I have set out. Because of the association between those persons and entities and the partnership, it could be expected that the limestone resources on the land would be made available to the partnership if required. If, and to the extent that, Jack was involved in the acquisitions, it was entirely consistent with his interest as a member of the partnership. As he was not involved in any of the transactions which took place after mid 1984, the extent of his involvement in the Wanneroo land acquisitions prior to mid 1984 sheds no light upon the question of whether he remained a partner thereafter. And taking Jack's evidence at its highest, his role in the identification of the land and the negotiations for its acquisition is incapable of giving rise to an equitable interest in the land.

121 Jack also gave evidence of a conversation which he had with his father in early 1984 relating to his acquisition of a block in the vicinity of the Wanneroo land in his own right (Jack xn 175). According to Jack, his father said to him that if he acquired a block in his own name, he would be in a position of conflicting interest with Sam Catalano, and that if the land was to be acquired, it should be acquired by the partnership, in which Jack had a one-third share of the Fazio interest. If Vince made those statements in early 1984, they were true, because Jack undoubtedly had such an interest in the partnership at that time. Accordingly, that conversation, if it took place, also sheds no light upon the question of whether Jack remained a partner after 1984. The fact that Jack was proposing to acquire an interest in the land in his own right might also be seen as inconsistent with the general thrust of his proposition to the effect that all assets acquired should be regarded as 'Fazio family assets' in which he had or would receive an interest, although I do not exclude the possibility that Jack wanted an interest in the land in his own right, exclusive of other family members.

122 Jack asserted in evidence that in or about 1980 or 1981 he located a block of land in Mayor Road, Cockburn from which Italia Limestone extracted a quantity of limestone pursuant to an agreement with Cockburn Cement (Jack xn 176). According to Jack, the agreement with Cockburn Cement was negotiated by his father. The defendants assert that I should reject Jack's evidence on this topic, which is uncorroborated. However, although the evidence is not corroborated, nor is it contradicted. In any event, as with the Wanneroo land, it does not seem to me that anything turns upon whether or not Jack played any role in identifying a business opportunity for Italia Limestone at a time when, on any view, he was a partner. Whether or not Jack played such a role sheds no light on the question of whether, three or four years later, he retired from the partnership.

123 Jack asserted in evidence that in about 1981 or 1982 he found land with a quarry and large limestone deposits in Kerosene Lane, Baldivis (ts 177). He says that he drew the land to the attention of his father, who made some inquiries about the prospect of purchasing it, and was advised that it was being purchased by another.

124 In cross-examination, Jack accepted that nothing came from the information he gave to his father (ts 437). He accepted that there was no opportunity for him to derive a personal advantage, because the land had already been taken up by WA Limestone.

125 On Jack's evidence, at the time he drew the land to his father's attention, he was undoubtedly a partner in Italia Limestone. Accordingly, as with the other topics most recently considered, I am quite unable to see how this evidence, even if accepted, advances the plaintiffs' case in any material way.

126 Jack gave evidence that in late 1983 he was in the office of a surveyor when he noticed plans on the surveyor's desk which related to a sandpit in Miguel Road, Naval Base (Jack xn 179). He described it as a new sandpit (ts 438). However, that evidence is not correct. A document prepared in support of an application for an excavation licence in March 1984 records that sand had been excavated from the site over the preceding two years (tb 2/934.6-7). Further, Ms Livia Ronci gave evidence to the effect that she and her husband, Vince Ronci, identified the site in late 1982, and negotiated a licence agreement with the owner of the site for the extraction of sand (L Ronci xn 32). They were subsequently approached by WA Limestone, who were interested in acquiring a portion of the business of extracting sand at Miguel Road (L Ronci xn 41). Although Ms Ronci cannot remember precisely how it came about, she became aware that WA Limestone were also proposing that Italia Limestone should become involved in the business as well. In the result, it was agreed that the Roncis would retain 25% of the business, the Della Bonnas (being persons associated with WA Limestone) would have 50%, and Italia Limestone 25% (L Ronci xn 46).

127 Ms Ronci asserted in cross-examination that Jack had nothing to do with the Miguel Road sandpit (ts 843). However, her attention was drawn to a statement she had previously signed, in 1993, in which she asserted that Vince had wanted Jack to be involved, but that everyone else was opposed to that (ts 845).

128 Jack's evidence was to the effect that he suggested to his father that he be allowed the opportunity to operate the sandpit himself, splitting the profits equally with Italia Limestone. He asserts that after initially agreeing, his father resiled, and proposed that WA Limestone should be brought in to take an interest in the sandpit. Jack further asserts that some months later his father justified his refusal to give him a personal stake in the project on the basis that he was a partner in Italia Limestone (Jack xn 184). If in fact Vince did adopt that position, it was justifiable because, of course, at that time Jack was a partner in Italia Limestone.

129 It is clear that Jack did not acquire a personal stake, separate from his interest in the partnership, in the business of extracting sand from the Miguel Road sandpit. Once again, his evidence that he sought a personal interest, separate from his interest in the partnership, is somewhat inconsistent with the general proposition that he understood that he would in any event receive one-third of all 'Fazio Family Assets'. Further, if and to the extent that he was involved in identifying this opportunity (which seems very doubtful in the light of Ms Ronci's evidence), his actions would be entirely consistent with, and referable to, his interest in the Italia Limestone partnership, and sheds no light upon the question of whether he remained a partner after 1984.

130 Jack's evidence-in-chief was that he became aware of the Mandurah land in December 1983, when his father was in Italy (Jack xn 98). He asserted that just before Christmas, on a trip to Madora Bay with a mutual friend, Ross Merlino, he saw a sign advertising land for sale. He looked at the land and saw that it contained a huge resource of limestone. He contacted the selling agent advertised on the sign, who referred him to another agent with whom he negotiated for the acquisition of the land.

131 However, in cross-examination Jack gave a somewhat different version. He stated that before his father went to Italy, his father told him that someone might contact him in relation to some land in Mandurah (ts 348). He went on to say that in December, he was approached by Mr Ray Ayres, a real estate agent, who is not one of the real estate agents to whom he referred in his evidence-in-chief. He stated that Mr Ayres approached him while he was at Vince's house and advised him of the opportunity to purchase the Mandurah land. According to Jack, it was pure coincidence that he happened to be driving in the Mandurah area with Ross Merlino after that conversation (ts 349 - 350). That assertion was an implausible attempt to reconcile the two versions of evidence he had given in relation to the identification of the land.

132 Jack maintained in his evidence-in-chief that he negotiated the acquisition of the land while his father was in Italy (Jack xn 100). He asserted that his father returned from Italy in about February 1984, after which he introduced him to the Mandurah land, and suggested that he might acquire an interest in it (Jack xn 101). These assertions are not correct.

133 There is a body of evidence which establishes that in the latter part of 1983, Vince returned to Italy with the body of his late father, in order to make arrangements for his late father to be buried in his native Sicily. The death certificate relating to Vince's father establishes that he died on 11 September 1983 (tb 2/830). International movement records maintained by the Department of Immigration record that Vince left Australia on 23 September 1983, and returned on 17 October 1983 (tb 38/18538). Those records are consistent with evidence given by others, including Guiseppe Monastra, to the effect that Vince only spent a few weeks in Italy when he returned to bury his father (ts 612). According to the international movement records, the next time Vince departed Australia was 2 February 1986. I see no reason to doubt the accuracy of the records recording these movements, especially given that the movements which they record fit in with the established date of the death of Vince's father, and the evidence of Mr Monastra as to the length of time Vince was overseas. I do not overlook the statement signed by Vince in 2007 as the evidence to be given by him in the Tranchita proceedings in which he asserted that the land was identified while he was overseas, and that the first he heard of the transaction was in July 1984 after the transaction had been consummated (tb 35A/17291 - 17294). Those assertions cannot be correct, as it is clear from the evidence to which I will refer that finance was being sought on behalf of Danehill by February 1984, which could not have occurred without Vince's knowledge. Further, Vince signed the contract for the acquisition of the land on 9 May 1984, in his capacity as a director of Danehill.

134 It follows that I do not accept Jack's evidence that he did not involve his father in the initial negotiations for the acquisition of the Mandurah land because he was overseas. Further, his evidence that he did not telephone his father to discuss the matter with him because he was overseas is also implausible, given the relative ease with which such a call could have been made.

135 Maria also gave evidence to the effect that the Mandurah land transaction occurred when Vince was overseas and was first discussed with Vince just after he returned from Italy (Maria xn 66 and ts 556 - 559). That evidence must also be wrong, although, of course, it coincides with the evidence given by Jack. This strongly suggests that she and Jack had discussed the sequence of events relating to the Mandurah transaction prior to giving their evidence, and had agreed upon a unified position.

136 A contract for the acquisition of the Mandurah land dated 28 December 1983 was tendered in evidence (tb 2/872). The contract describes the purchasers as Jack, Maria, Rosario Merlino and Loredana Merlino (his wife) 'and/or their nominees'. The purchase price specified in the contract is $610,000. By special condition 4, the vendor, Benara Nominees Pty Ltd agreed to take the properties known as Lot 8 Jones Road, O'Connor and 233 South Terrace, Fremantle for the sums of $65,000 and $155,000 respectively in part-payment of the purchase price. It is common ground that the reference to 233 South Terrace is a typographical error, and should be read as a reference to 223 South Terrace.

137 Other conditions of the contract made completion subject to approval of subdivision of the land within 90 days, and the grant of approval for the extraction of limestone within a similar period. Unfortunately, the copy of the contract tendered in evidence is incomplete, and it is not clear whether the contract was conditional upon the grant of finance to the purchasers.

138 I accept Jack's evidence that he had not spoken to Vince at the time he negotiated for the acquisition of the land and entered into this contract. However, I do not accept that the reason he had not done so was because Vince was in Italy. Rather, I find that the reason Jack had not spoken to Vince about the acquisition was because he intended to acquire the land in his own interest, in conjunction with the Merlinos, and only involve Vince to the extent necessary to make up any shortfall in funding the acquisition.

139 When asked, in cross-examination, if he would have been happy in December 1983 if Italia had taken over the whole deal, Jack replied:

It would have been ideal for me but that was not the position. I wanted a slice of the land too and I was quite happy to take 100 acres paid for and get rid of my debts. (ts 357)

140 It is quite implausible for Jack to suggest that it would have been ideal from his perspective for Italia to have taken the whole deal. He negotiated the transaction without reference to his father or Mr Catalano. He was joined in that endeavour by his friend, Mr Merlino who had no interest in Italia Limestone. There was no reference to Italia Limestone in the contract which was signed on 28 December 1983. It is clear from his evidence generally that Jack saw this transaction as potentially very beneficial, and wished to obtain a significant portion of that benefit in his own right. I do not accept that he was primarily motivated by the interests of the partnership when negotiating for the acquisition of the Mandurah land.

141 As I have earlier noted, it is significant that Jack committed to provide the South Terrace property in part-payment of the purchase price without prior reference to Vince. This is only consistent with an understanding on his part that he was entitled to deal with that property as he chose. Further, although there is evidence that Vince tried to dissuade Jack and Maria from parting with the South Terrace property, there is no evidence to suggest that he ever threatened to block its sale into the Mandurah transaction by refusing to transfer the land (which was, of course, still registered in Vince's name).

142 Jack subsequently approached various friends and acquaintances with a view to putting together a syndicate to acquire the land. At some point in that process he approached his father. It is not clear precisely when that occurred, but it must have been before the latter part of February 1984, because documents have been tendered showing that applications for finance were being prepared in the latter part of that month showing that Danehill wished to borrow funds to be used in part to purchase an interest in the Mandurah land (tb 2/915). There are various iterations of a letter from Danehill's accountants, Francis A Jones & Associates Pty Ltd, applying for finance for this purpose around that time in evidence (see tb 2/922, 2/928, 2/930 and 2/932).

143 By the iteration dated 29 February 1984, the application for finance was prepared not only on behalf of Danehill, but on behalf of other prospective purchasers, including Jack and Maria, and various others. In that iteration, reference was made to the vendors taking a property worth $155,000 owned by Jack and Maria. Presumably by then, Vince must have been aware of the proposal to vend the South Terrace property into the transaction.

144 Subsequent iterations of the letter from Francis A Jones & Associates applying for finance also refer to the transfer of the South Terrace property in part-payment of the purchase price of the Mandurah land. There is no evidence to suggest that Jack's retirement from the partnership was in contemplation, or the subject of discussion between him and his father as early as December 1983, when the South Terrace property was first committed to the Mandurah land transaction. Nor is there any evidence to suggest that Jack's retirement from the partnership was in contemplation by February 1984. But by at least February 1984, it must have been clear to all concerned that the South Terrace property was to be transferred to the vendor of the Mandurah land, and while Vince was not enthusiastic about that aspect of the transaction, he made no attempt to prevent it (ts 362). Because the evidence establishes that it was agreed not later than February 1984 that the South Terrace property would be transferred, and that Jack and Maria would receive the benefit of that transfer, I do not accept that this aspect of the Mandurah transaction had anything to do with Jack's retirement from the partnership.

145 Accordingly, I do not accept Rudy's evidence that he was told by Vince that Jack had been given the South Terrace property as part of the consideration for his retirement from the partnership (Rudy xn 330 and 375 - 386). That evidence is inconsistent with the written statement made by Vince in the course of the proceedings relating to the Mandurah land in 2007, which Rudy admits he read, without demur. I consider that Rudy has placed a particular complexion upon his recollection of the events of the time so as to coincide with the position adopted by the defendants in their opposition to the plaintiffs' case.

146 In the result, the Mandurah land was acquired pursuant to a contract executed on 9 May 1984 (tb 2/995). The contract price remained $610,000, and the syndicate members took an undivided interest in the land equal to the proportion of the purchase price which they supplied. Danehill acquired a 150/610ths interest, and MG Constructions Pty Ltd (MG Constructions) acquired a 100/610ths interest. MG Constructions Pty Ltd is a company controlled by Jack and Maria. Danehill acquired the largest share of the property, and MG Constructions, the second largest share. The balance was spread among numerous other parties.

147 It was a condition of the contract that settlement occur simultaneously with settlement of the sale of the South Terrace property, and another property in Spearwood, which were to be provided in part-payment of the purchase price.

148 While it is possible, on the defendants' case, that there may have been some discussion concerning Jack's retirement from the partnership by early May 1984, there is no evidence to that effect. Accordingly, the terms of this contract, executed by Vince on behalf of Danehill in early May are also inconsistent with the proposition that the transfer of the South Terrace property was part of an agreement relating to Jack's retirement from the partnership.

149 The acquisition of the Mandurah land was financed in part by funds advanced by Perpetual Trustees WA Ltd against the security of a mortgage over the Mandurah land. The mortgage was executed on 20 June 1984 (tb 2/1044). It provides that the partners of Italia Limestone are to be an additional covenantor, promising to repay the funds advanced ($260,000). The document lists those partners as Vince, Guiseppina, Jack, Rudy and the Catalanos (tb 2/1065).

150 The plaintiffs assert that it is improbable that Jack would have entered into this document as an additional covenantor only two days before he executed a form providing notice under the Business Names Act that he would be ceasing to trade as a proprietor of the partnership with effect from 1 July 1984. However, it is to be remembered that a company controlled by Jack and Maria, MG Constructions, was one of the principal covenantors, and that Jack had an interest in the finance being granted other than through his interest in the partnership. Accordingly, I do not consider his execution of the mortgage on 20 June 1984 to tell strongly against the proposition that he also executed the business names form two days later.

151 I reject Jack's evidence that he was substantially motivated by the interests of the partnership in undertaking the Mandurah land transaction. I find that he was primarily motivated by his own interests which were, in this transaction, quite separate from the interests of his parents and the Catalanos, who took their interests in the acquisition through their interest in Danehill. The fact that Jack was motivated to take a quite separate and distinct interest in the transaction is somewhat inconsistent with the proposition that he was to acquire a one-third interest in all 'Fazio family assets', or that he relied upon representations by his father as to his interest in the partnership, or as to his interest in the 'Fazio family assets' when structuring his affairs and undertaking transactions and investments over this period. There is no aspect of the Mandurah land transaction which supports the plaintiffs' case. Further, Jack's transparently disingenuous attempts to distort the true nature of that transaction reflect adversely on his credibility generally.

152 However, for the reasons I have given, I do not accept the defendants' proposition that Vince only agreed to transfer the South Terrace property as part of the consideration for the Mandurah land pursuant to an agreement for the relinquishment of Jack's interest in the partnership.

153 A considerable body of evidence was led concerning agreements allegedly made in relation to the acquisition and development of land situated in Barrett Street, Spearwood (lot 209). That is because the findings made with respect to the issues concerning lot 209 Barrett Street shed light upon the question of whether Jack relinquished his share in the partnership in 1984.

154 Jack and Maria assert that Jack and Vince had a significant disagreement around the middle of 1982 following Jack's repeated requests for greater remuneration for the work he was doing for the partnership. They allege that when Vince refused to permit Jack to be paid more money, Jack ceased working for the partnership between about May and August 1982, during which time he worked part-time in real estate, and part-time in the lighting business, Western Décor. On their version of events, Vince sent intermediaries, being his brother Frank, and Frank's son Sam to try and persuade Jack to resume working in the limestone business, and authorised them to offer to pay Jack a lump sum of $12,000, and to give to Jack and Maria a vacant block in Barrett Street, Spearwood on which Vince would build a house up to a value of $120,000 free of cost to Jack and Maria. It is said that Jack accepted this offer when it was put to him, and returned to work in the limestone business until he was injured in the course of that work in October 1984. After Jack ceased work in the limestone business, he exchanged the block for his share in land which he acquired in Maddington with others, for the purposes of development and resale, before Vince had built any house on the block. They further allege that Vince arranged for Jack to be given a 10% interest in Lime Industries business some years later, to compensate Jack and Maria for Vince's failure to build the house which he had promised. Of course, absent such an explanation, the transfer to Jack of a specific interest in a business in which the partnership held its own interest would be inconsistent with his assertion that he remained a member of the partnership.

155 On the other hand, the defendants assert that there was no agreement for the transfer of an interest in lot 209 Barrett Street to Jack and Maria until mid-1984, when it was agreed that they would receive the block as part of the settlement relating to Jack's surrender of his interest in the partnership.

156 Jack and Maria's version of these events is inconsistent with a number of facts incontrovertibly established by contemporaneous documentary evidence, and is, in some respects inherently implausible. For the reasons which I will now give, I do not accept their evidence on this topic.

157 Jack's evidence-in-chief was that in early 1982 he said to his father that Italia had to pay him a reasonable wage or profit distribution. According to Jack, his father refused and they argued, with the result that in May 1982 he delivered an ultimatum, to the effect that unless he was paid a reasonable wage or share of the profits he would have to find himself another job. Jack stated that when his father refused to accede to his request, he ceased working for Italia in about May 1982 (Jack xn 182).

158 His evidence was that he endeavoured to calculate the amount he should have been paid over the years that he had worked for Italia, taking into account an appropriate hourly rate, and penalty loadings for overtime. He asserts that he calculated an entitlement to approximately $300,000 (Jack xn 85).

159 This assertion is inherently implausible. The contemporaneous accounting records and documents provide a yardstick for assessing levels of wages and income around this time. Those records, including records of payments made by the partnership and statements of income made by various people working in manual trades, suggest that gross incomes for manual work around this time could have been expected to be between $15,000 and $25,000 per annum (tb 2/966 et seq). In that economic scale, Jack's assertion of a calculated entitlement to back-pay in the vicinity of $300,000 must be a gross exaggeration.

160 Jack stated that in August 1982 his uncle Frank Fazio and his cousin Sam Fazio came to his house and told him that at the request of Vince, they had come to attempt to persuade him to return to work at Italia (Jack xn 86). They said that Vince had authorised them to offer Jack an immediate payment of $12,000, a block of land in Barrett Street, and up to $120,000 towards the cost of building a house on that block over about the next two years. According to Jack, they also said that Vince had agreed that he would receive a regular reasonable weekly wage or profit distribution. He says that he accepted the offer, and returned to work.

161 Jack's evidence was that he was not paid a regular wage or profit distribution until the middle of December 1982, when he was paid about $250 per week net of tax, which he estimated was an underpayment of about $300 per week (Jack xn 188). Jack's estimate of an appropriate income at that time (of around $30,000 per annum) confirms my view that his evidence that he estimated he was entitled to around $300,000 by way of arrears cannot be accepted.

162 Jack further gave evidence to the effect that nothing was done in relation to the construction of the house promised by his father until 1984, when Colleen Fleming (now Rebelo) gave him a contract for the construction of the house which he signed (Jack xn 87). He asserted that she told him that he had to write in that the contract price was $120,000, which he refused to do because he was concerned this would amount to an acknowledgement that he had to pay $120,000. He asserted that this caused a dispute between him and his father. As I will record below, that assertion is incompatible with the documentary evidence which shows that Fazio Homes was proceeding to obtain the approvals necessary to construct the house throughout the latter part of 1984. Jack's evidence was that after he stopped working for Italia Limestone in October 1984, he decided to use his interest in the Barrett Street lot to acquire an interest in a property development in Maddington.

163 Maria's evidence-in-chief was to the effect that she and Jack and their children had moved into the house at 71 Birchley Road occupied by Jack's parents while they were in Italy (Maria xn 33). However, they remained in the house after Jack's parents returned from their trip. She also gave evidence of repeated discussions between Jack and Vince concerning Jack's claim for a regular income. Her evidence-in-chief was that one night in 1982 there was a massive argument arising from Jack's complaints that he was not receiving sufficient income, after which Vince gave Jack $1,000 (Maria xn 52 - 56). However, soon after there was another argument after Jack asked for a greater amount. Her evidence was that she, Jack and the children left the house immediately and spent the night on the floor of the house of a friend (Maria xn 56 - 57).

164 She stated that this occurred in May 1982, and that Jack worked in the lighting business for two to three months thereafter. In her evidence-in-chief, she corroborated Jack's evidence of the discussions between Jack and Frank and Sam Fazio (Maria xn 61 - 62).

165 Frank Fazio passed away before the trial of these proceedings. His son Sam (Sebastiano) gave evidence corroborating Jack and Maria's evidence of the discussion in 1982 in which he and his father had intervened on behalf of Vince to try and persuade Jack to return to work at Italia (Sam xn 4). So, the evidence given by Jack, Maria and Sam Fazio, in the form of the witness statements which they adopted as their evidence-in-chief, was generally consistent. However, it unravelled in cross-examination.

166 In cross-examination Jack acknowledged that nowhere in the witness statement which formed his evidence-in-chief did he relate any direct conversation which he had with Vince concerning these matters (ts 302 - 303). Further, it was pointed out to him that lot 209 Barrett Street was acquired by Danehill in February 1983 (tb 2/651 - 2/654). This fact, incontrovertibly established by the documentary evidence, posed two obvious problems for Jack's version of events. First, in August 1982 when, according to the plaintiffs the agreement relating to Barrett Street was brokered, there is no evidence to suggest that Vince had a block in Barrett Street to offer Jack and Maria. Second, if by 2 January 1983, when the agreement for the acquisition of lot 209 Barrett Street by Danehill appears to have been executed (tb 2/651), there was an agreement to give the land to Jack and Maria, it is most likely that it would have been transferred to them, instead of Danehill (in which the Catalanos had an interest). At the very least, one would have expected the land to be acquired by the Fazio family, not Danehill.

167 These problems for the plaintiffs version of events were no doubt evident from the documents included within the trial bundle. In cross-examination Jack sought to overcome these difficulties by asserting that Frank and Sam Fazio told him that the block in Barrett Street had not been purchased yet, but was under agreement, and that the agreement involved the exchange of the Barrett Street block from a third-party in return for a property in Marvell Avenue held by Danehill (ts 305).

168 The latter assertion is corroborated by documents which suggest that lot 209 Barrett Street was acquired as part of a transaction for the sale of land by Danehill (tb 2/655). However, it is clear that this transaction was not documented until early February 1983. If, as the plaintiffs assert, there was by then an agreement that lot 209 Barrett Street would go to Jack and Maria, there is no reason why the transaction would not have been documented accordingly, and the land transferred to Jack and Maria at that time.

169 In cross-examination Maria confirmed her evidence to the effect that the agreement between Jack and his uncle and cousin was made some months after they had moved out of the house of their parents-in-law in Birchley Road. She asserted that when the agreement was made, she had no idea which block in Barrett Street was proposed (ts 511). On her evidence nothing was done towards the planning or building of the new house that she and her husband had been promised for two years after the agreement which resulted in Jack returning to work. Given that, on her evidence, during this period she and her husband and their two (later three) small children were living in rented premises, this seems unlikely.

170 As I have mentioned, Maria's evidence was to the effect that during the three months while Jack was not working for Italia, he was assisting in the lighting business. However, by this time the lighting business was no longer being conducted from the shop in South Terrace, and the lighting stock was in storage. Bank deposits made on behalf of the lighting business over this period are in evidence. The receipts given for the deposits do not suggest any significant turnover in trade as a result of Jack's endeavours. If, as he and Maria asserted, he stopped working for Italia in order to secure a more reliable form of income, it seems most unlikely that he would not have secured a job providing a regular form of income. The bank deposit slips relating to the Western Décor business suggest that if his objective in leaving the Italia business was to improve the family's financial circumstances, his efforts were not crowned with success (tb 1A/387).

171 Sam Fazio said in cross-examination that he thought Jack worked in real estate with Mr Chillino after ceasing work with Italia in 1982 (ts 625). However, this is inconsistent with other evidence, which suggests that Jack did not obtain a real estate salesman's licence until mid-1984, nor did he commence working in a real estate business with Mr Chillino until that time (Jack xn 140). Further, Sam accepted in cross-examination that he had fallen out with each of Vince and Rudy over his investment in the Mandurah land, and had in fact been on opposing sides in the litigation relating to that land (ts 614). He accepted that he and Jack have been good friends for many years. Further, according to Sam, the conversation which resulted in Jack returning to work in the limestone business occurred after Vince and Guiseppina had built their big house in Barrett Street, but that home was not completed until 1984 (ts 619). Given his partisanship and his erroneous recollection relating to the work which Jack did during the period he was apparently not working for Italia Limestone, the discrepancies in his evidence as to the year in which the conversation took place, and the objective evidence which makes it improbable that there was an agreement of the kind alleged, I do not accept the evidence given by Sam Fazio.

172 Further, on Jack and Maria's evidence, they had stopped living in the house of their parents-in-law when the dispute erupted in May 1982. However, the bank deposit slips relating to the Western Décor business, to which I have already referred, show that the deposits were lodged at the bank by Cathy Hickey between May and August 1982. Ms Hickey was an employee of Italia Limestone, working out of the office which was situated in the Birchley Road house occupied by Vince and Guiseppina. There is a strong inference, which I draw, that she was asked to do the banking for Western Décor by Maria, because Maria was also living in the Birchley Road house. If, as Jack and Maria assert, there had been a heated dispute between them and Vince which resulted in them storming out of the Birchley Road house, it is highly unlikely that Maria would have returned to that house every week to ask Ms Hickey to do the banking for the Western Décor business.

173 Jack and Maria's third son Phillip was born on 24 October 1982 (tb 2/638.9). On the notice informing the Registrar of his birth, Maria gave the Birchley Road address as her address. When it was put to her that she gave that address because that was indeed where they were living at the time of Phillip's birth, she asserted that she put the Birchley Road address down because 'they were only renting' and because she felt the Birchley Road address was more permament (ts 563). This evidence was not given confidently or plausibly, and I do not accept it. Further, Guiseppina confirmed in her evidence that Jack and Maria were living with her and Vince when Phillip was born (Guiseppina xn 187). That evidence is consistent with the document to which I have referred, and I accept it. This makes it highly unlikely that there was a dispute between Jack and Vince which resulted in Jack ceasing to work for Italia for a period of three months in the middle of 1982, as asserted. It also weakens the foundation for the agreement asserted by the plaintiffs, which was said to have Jack's return to work for Italia as its objective.

174 Sam Fazio's evidence was to the effect that the transfer of the block in Barrett Street (which was valued at $30,000 at the time) and the offer to build a house up to $120,000 at no cost to Jack and Maria was offered by Vince in order to compensate Jack for wages foregone over the period prior to 1982. Given the economic scale to which I have referred earlier, and Jack's evidence that he considered himself entitled to an income of around $30,000 at this time, an offer from Vince equivalent to five years gross income seems highly improbable. Further, if, as Jack and Maria assert, the offer to build a house up to a value of $120,000 for no cost was to reflect Jack's entitlement to arrears of wages, it seems highly improbable that they would simply have walked away from that offer, in the latter part of 1984, as they say they did.

175 Further, Maria's evidence in re-examination was that, so far as she could recall, by the time she heard that she and Jack were to receive a property in Barrett Street, her parents-in-law were already in their new house in Barrett Street (ts 591). However, Guiseppina's evidence was to the effect that she and Vince did not move into their new house in Barrett Street until the first part of 1984 (Guiseppina xn 204). That evidence is corroborated by a body of documentary evidence which establishes the dates on which payments were made for various items of construction, and fittings installed in Vince and Guiseppina's house in Barrett Street (for example see tb 2/833.13 and tb 3/1208.1). It follows that Maria's evidence as to the timing of the agreement for her and Jack to receive a block in Barrett Street cannot be entirely correct. It also suggests that, in fact, the time at which there was any agreement relating to the transfer of a block in Barrett Street to Jack and Maria was 1984, not 1982.

176 A building contract between Fazio Homes WA and Jack Fazio and dated 16 July 1984 was tendered in evidence (tb 3/1179). It bears the heading 'Cost Plus Contract', although its text would appear to also accommodate a lump sum contract. However, no part of the contract relating to the consideration to be provided by the proprietor to the builder has been completed. The contract identifies that the building is to be in accordance with drawings prepared by Temelcos & Zambotti Architects, and that the source of the proprietor's finance is to be Westpac Banking Corporation. The contract is signed by Jack and Vince, and each signature has been witnessed by Colleen Rebelo.

177 As I have mentioned, Jack's evidence-in-chief was to the effect that Ms Rebelo asked him to insert the amount of $120,000 as the price, but that he refused to do so, which resulted in a dispute with his father. However, in cross-examination a different version emerged in which he asserted that Ms Rebelo said to him that a figure had to be inserted, but that he replied that 'up to $120,000 I don't have to pay anything, Colleen'. He then said that his father walked in and 'we erupted in a huge massive argument in which I threw the contract on the ground' (ts 311). Jack's inconsistent evidence as to these events is inherently implausible. He admits that he signed a document in which reference is made to the source of finance which he was going to use to fund the project. The failure to complete that portion of the contract which identified the mark-up to be paid to the builder over and above the cost of construction suggests that the agreement was to the effect that Jack would reimburse the actual cost of construction, with no mark-up. Further, the date the agreement was signed, 16 July 1984, is very close to the time at which a transfer of the Barrett Street block from Danehill to Jack and Maria was signed (19 July 1984; see tb 3/1195 - 3/1199). The transfer was lodged for registration on 6 September 1984 (tb 3/1267). The execution of the building contract, and the transfer of land in July 1984 is obviously more consistent with the version of events propounded by the defendants than that propounded by the plaintiffs.

178 When the land was transferred from Danehill to Jack and Maria, obviously stamp duty had to be paid on the transfer. There was a body of evidence which establishes that Vince consistently looked at ways of structuring transactions in order to avoid or reduce taxation liabilities. One of many examples is the transfer of Barrett Street itself, in which the consideration is specified as $20,000 (when it had been acquired by Danehill at a price of $30,000 some years earlier, and was sold by Jack and Maria later in 1984 at a value of $55,000) and when in fact Jack and Maria were not paying any money for the land. If, as the plaintiffs assert, there was an agreement that Jack and Maria were to obtain the Barrett Street property prior to its acquisition by Danehill, it seems most unlikely that the transaction would not have been structured in such a way as to give them title at the time, so as to avoid paying additional stamp duty later.

179 Further, the fact that a stamp duty obligation was incurred at all in July 1984 might suggest that the transfer of Barrett Street had some connection to a parting of the ways between Vince and Jack. I have found that Vince gave the property at 223 South Terrace to Jack and Maria as a wedding present, but did not transfer it into their names at any time and held it in his name on their behalf for seven years. This might suggest that unless there was some parting of the ways around the middle of 1984, it was unlikely that a transfer would have been executed, and the stamp duty obligation incurred, in order to transfer Barrett Street into Jack and Maria's names. On the other hand, as the building of a house on the block was contemplated, it would have been obvious to all that a transfer of land prior to the construction of the house would incur less stamp duty than a transfer later. So, in the end, the most that can be drawn from the timing of the transfer is that its timing coincides with the defendants' case as to the reason for the transfer.

180 As I have mentioned, lot 209 Barrett Street was held by Danehill, in which Mr and Mrs Catalano have an interest. That interest had to be taken into account at the time the land was transferred to Jack and Maria, and accounting entries and payments were made reflecting a payment from Vince to the Catalanos equivalent to their interest in the Barrett Street property (assessed on the basis of cost; namely, $30,000). As I have already noted, if there was an agreement to give the land to Jack and Maria prior to its acquisition, it seems most unlikely that the land would have been acquired by Danehill, given the interest which the Catalanos have in that company.

181 Part of the journal of Danehill Nominees Pty Ltd was tendered in evidence. It records the transfer of an amount equal to the cost of acquisition of the Barrett Street property to Anham (which is of course a company controlled by Vince, but in which the Catalanos have no interest). The note in the journal is as follows:

Lot 209 Barrett Street Being property withdrawn for private use. (Used as settlement for Jack Fazio's share in Italia Limestone) (tb 2/889, 2/892).

182 The evidence does not establish who prepared the journal, or the note in the journal. There is no evidence to suggest that the journal entry, or the note, was ever seen by Jack prior to its production in the course of these proceedings. However, it is a fair inference, which I draw, that the note was prepared by somebody acting upon Vince's instructions at or about the time Danehill transferred lot 209 Barrett Street to Jack and Maria. There is no reason to suppose that Vince would have given false instructions to his accounting personnel at that time. He would not have had any motive for doing so, as there was not then any dispute in relation to Jack's interest in the partnership. That dispute did not emerge until many years later.

183 Even though the journal is a document which was purely internal to Danehill, and not disclosed to Jack, in my view its contemporaneity makes it a particularly telling piece of evidence. I do not overlook the fact that the note is, on one view, inconsistent with the statement of the evidence to be given by Vince in the Mandurah land proceedings, and which Vince signed prior to his death. In that statement he refers to the Barrett Street land as a 'gift' to Jack. However, it is to be remembered that Jack's interest in the partnership was also a gift to Jack, so that Vince could easily have seen the transfer of Barrett Street as also being a gift, even if it were a part of the arrangements relating to Jack's relinquishment of a share in the partnership. Further, it is to be remembered that the witness statement signed by Vince relating to the Mandurah land proceedings was prepared more than 20 years after the transfer of Barrett Street and was prepared for use in proceedings in which the precise characterisation of the Barrett Street transaction was not an issue.

184 Jack's evidence about there being a heated dispute with his father at the time the building contract was signed in mid-July 1984 is also inconsistent with the documentary evidence which establishes subsequent events. A receipt produced by the City of Cockburn shows that Fazio Homes lodged two sets of drawings and a specification in support of an application for building approval on 6 August 1984 (tb 3/1205). Although the form of application for the building licence is not in evidence, the licence granted by the City of Cockburn is in evidence. It is dated 22 August 1984 (tb 3/1235). It estimates the building value at $40,000.

185 The plans of the house, prepared by architects paid by Vince, are also in evidence. There was no direct evidence of the likely cost of building a house in accordance with those plans in 1984. Although the house was designed by an architect, it would not be described as grand in size or scale. It is a single level house with three bedrooms, a study and a large living area. Jack was adamant in his evidence that it would have cost at least $120,000 to construct such a house, but it seems to me that the best evidence I have is that provided by the building licence issued by the City of Cockburn, which puts a value upon the house of $40,000. No doubt the City of Cockburn was in the regular business of issuing building licences in respect of houses, and could be taken to have some knowledge of the likely cost of construction of houses at that time. I do not accept Jack's evidence to the effect that construction of a house in accordance with the plans prepared at that time would have cost in the vicinity of $120,000 or more.

186 Further, there is another document in evidence dated 14 November 1984 issued by the Metropolitan Water Authority entitled 'Building Fee Valuation Slip' (tb 3/1433). The document relates to lot 209 Barrett Street and describes the builder as Fazio Homes. In a part on the form in which an estimate is to be made of costs, somebody has written in the amount of $40,000. While I would not expect a valuation on such a form to be precise or inevitably accurate, I do not accept that an estimate of cost which is only one-third of the true cost of construction would have been made at that time, or would have escaped notice.

187 Given the date of this document, it seems a fair inference, which I draw, that Jack did not tell his father that he had agreed to sell lot 209 Barrett Street in order to secure his portion of an investment in a property development in Maddington, until some time after mid-November 1984, during which time his father continued in the belief that he would be building a house for Jack in Barrett Street, near where he and Guiseppina were living at cost.

188 The transfer of lot 209 Barrett Street from Jack and Maria to the vendors of the Maddington property was not executed until February 1985 (tb 3/1532). However, the transfer of the Maddington property to Jack and the other members of the syndicate acquiring that property bears a notation which suggests, and I find, that it was pursuant to an agreement dated 7 November 1984 (tb 1531.1). Accordingly, it seems likely, and I find, that the agreement relating to the Maddington property, one of the terms of which involved the transfer of lot 209 Barrett Street in part satisfaction of the purchase of that property, was concluded by early November 1984.

189 Jack and Maria were each cross-examined as to the reasons why they agreed to transfer the Barrett Street property as part of the Maddington transaction in the latter part of 1984. Jack asserted that the reason he did not proceed with the proposal whereby his father was to build a house on the property at no cost to him and his wife was because of 'massive arguments' he had with his father about a tax problem he had been 'lumbered' with (ts 316). Maria gave similar evidence, linking their decision to walk way from the offer of a free house up to a value of $120,000 with the dispute between Jack and his father over Jack's tax bill (ts 546). However, as I note below, it seems clear that the issue relating to the tax payable by Jack on his drawings from the partnership did not arise until December 1984, by which time Jack and Maria had committed themselves to the sale of the Barrett Street property.

190 The explanation given by Jack in cross-examination for renouncing an apparently generous offer was implausible, and bordered on the incoherent. He said at one point:

I wasn't going to have him building me a house and get myself back into debt like I was before (ts 316).

Of course that evidence is utterly inconsistent with his evidence to the effect that the house was to be a gift.

191 At another point in his evidence, he described the Maddington investment as being:

A cash flow positive situation for my family other than borrowing another $120,000 or, lets say, getting mixed up with my dad and arguing and carrying on for the next two, three years and being pushed down and down. (ts 317)

Again, the reference to 'borrowing another $120,000' cannot be reconciled with Jack's evidence to the effect that the house was to be a gift. Further, the proposition that investing the value of the Barrett Street block undeveloped into the Maddington property would produce a better return than retaining the Barrett Street property and arranging for his father to build a house to the value of $120,000 on it at no cost to Jack is patently implausible.

192 Maria was also unable to explain why she, as a mother of three young children living in rented accommodation, would have renounced Vince's offer to build her and her family a valuable house at no cost. Her attempts to do so were unconvincing (ts 542 - 543).

193 For these various reasons, I reject the evidence to the effect that there was an agreement in 1982 whereby Jack and Maria would receive a lot in Barrett Street, Spearwood upon which Vince would build a house to a value of $120,000 at no cost to them, in return for Jack returning to work for the partnership. I find that there was no agreement relating to the transfer of lot 209 Barrett Street to Jack and Maria until 1984, and that Vince never offered to build them a house to a value of $120,000 at no cost to them.

194 As I have mentioned, a document has been produced in evidence, being a 'Statement of change of persons in relation to whom business name is registered' relating to the business name 'Italia Limestone Company' purporting to show a change in the persons carrying on business under that name by the omission of Jack with effect from 1 July 1984 (tb 2/1033). The document purports to have been executed by all partners on 22 June 1984. It bears a date stamp showing that it was lodged at the Office of the Department of Corporate Affairs on 10 October 1984.

195 Whether that document was executed by Jack as part of an agreement for him to relinquish his share in the partnership is perhaps the most critical issue in the case. It is an issue best evaluated in the light of all the evidence, including the evidence of subsequent events. I will therefore return to this issue after making my findings in relation to events which occurred subsequent to the date upon which the document is said to have been executed. In that context I will also evaluate the significance of the findings I have made in relation to the Barrett Street property in relation to this issue.

Jack ceases employment at Italia - October 1984

196 Jack gave evidence-in-chief of an incident which occurred while he was working for Italia Limestone quarrying rubble at the Wattleup quarry. He was apparently caught under a collapsing overhang, and trapped behind a wall of limestone rubble and sand (Jack xn 120).

197 He also gave evidence of regular disputes with his father at the worksite. According to Jack, matters came to a head in October 1984 when he was working for Italia on the Fremantle Breakwater Project. Following an altercation with his father after a dispute with another employee, he felt humiliated and upset. He went to the rear of a truck and angrily bashed upon the steel bar that held shut the tailgate. The bar swung around and smashed into his head, knocking him unconscious (Jack xn 131). A doctor's certificate tendered in evidence suggests that this occurred on 8 October 1984 (tb 3/1427). Although Jack received worker's compensation payments for several weeks following the accident, he never returned to work in the quarrying business. Of course he asserts that although he was no longer employed in the business on a day to day basis, he contributed to partnership affairs through the various transactions which I will address below.

198 In the financial years prior to the year ended 30 June 1984, Jack derived two forms of income from the Italia Limestone partnership. He was paid wages as an employee, from which PAYE deductions in respect of tax were made. He also received distributions of partnership profits, which might or might not have corresponded with drawings from partnership funds. He was obliged to pay provisional tax in respect of his allocation of partnership profits.

199 There can be no doubt that Jack was aware of these matters. He received assessments of provisional tax, and correspondence from Frances A Jones & Associates Pty Ltd setting out the position quite clearly (tb 2/903 - 2/909).

In about 1984, I think August, my dad was forcing me to pay an amount of tax. We had a dispute. (Jack xn 116)

Jack's evidence was that the dispute related to tax payable on partnership profits in the year ended 30 June 1984. However, Vince cannot have been attempting to force Jack to pay tax on partnership profits for the year ended 30 June 1984 in August of that year, because no returns had been lodged at that time, nor had any income tax assessments issued. The tax return for the partnership was not prepared until 7 December 1984. It seems unlikely that there would have been a definitive allocation of profit amongst the partners, or an assessment of the tax payable by the partners until the partnership return was completed. Further, Jack's liability to pay tax would of course not arise until he received an assessment, based upon his personal tax return. As I will record below, Jack's return was not lodged until some time in 1985, and in that return, Jack did not return the contentious partnership profit.

201 Accordingly, I do not accept Jack's evidence to the effect that the dispute arose in August 1984, I find that the dispute did not arise until December of that year, after the partnership return had been prepared. That finding is consistent with the fact that an accountant consulted by Jack, Mr Gosatti of PM Melsom & Co, after the tax dispute arose, wrote to Francis A Jones & Associates on 16 January 1985. It therefore seems likely that Jack became aware of the issue relating to the tax payable on his share of partnership profits some time in December 1984, after the partnership tax return had been completed, and consulted Mr Gosatti in either December 1984 or the first half of January 1985.

202 By the letter of 16 January 1985 Mr Gosatti advised Francis A Jones & Associates Pty Ltd that he had been approached by Jack and Maria to attend to their accounting and taxation matters (tb 4/2059). The letter specifically advised that Mr Gosatti had been requested to evaluate Jack's estimated tax position in light of the share of profit from Italia Limestone. The letter also asked for copies of financial statements and tax returns for all entities in which Jack or Maria were either a beneficiary, director and/or shareholder or partner.

203 The files maintained by Francis A Jones & Associates were produced to the court on subpoena, and copies tendered in evidence. The letter from Mr Gosatti dated 16 January 1985 is on that file. Also on that file is a copy of a tax return prepared in Jack's name by Francis A Jones & Associates Pty Ltd and dated 13 December 1984 (tb 4/2063). That return shows income from Italia Limestone of $26,722, which includes an amount of $10,000 in respect of partnership profits. This is the amount of profit recorded as allocated to Jack in the partnership tax return prepared a week earlier. It seems likely that a copy of Jack's return would have been sent to him shortly after it was prepared in December 1984, reinforcing my conclusion that Jack did not become aware of his tax liability until about that time. This inference is confirmed by a letter from Francis A Jones & Associates to Jack and Maria Fazio dated 21 December 1984, a copy of which is retained on the Western Décor file maintained by that firm and which was produced on subpoena, addressed to Mr and Mrs Fazio enclosing copies of their income tax returns (tb 4/2086). This correspondence supports my conclusions as to the time at which Jack became aware of the tax liability arising from his allocation of partnership profits.

204 Also on the file is a letter stamped in the top right hand corner with the word 'copy'. It is dated 21 January 1985 and is addressed to PM Melsom & Co and marked for the attention of Mr Gosatti (tb 4/2056). The letter refers to Mr Gosatti's letter of 16 January 1985 and attaches a statement showing the amounts paid to Mr Fazio from Italia Limestone Company during the year ended 30 June 1984. The letter goes on to state:

No other profit or income has been allocated to Mr G Fazio for the year. We are informed by the other partners (Mr V Fazio) that your client reached an agreement whereby he has been paid in full for his interest in the partnership.

We also enclose copies of the income tax returns prepared by us for the year ended 30 June 1982, 1983 and 1984. All assessments have been forwarded to Mr Fazio, but we enclose a copy of our letters to him dated 17 January 1984 and 16 December 1983 which may be of assistance to you.

In addition to the partnership of Italia Limestone Company we have been instructed by the remaining partners not to release any partnership financial statements and therefore suggest that you communicate directly with Mr V Fazio in this regard.

205 There is no direct evidence that this letter was either sent by Mr Polglase, of Francis A Jones & Associates, or received by Mr Gosatti.

206 Each party asserted that I should draw an inference of the kind referred to in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, from the fact that the other party did not call Mr Gosatti to give evidence on the subject of whether or not he received the letter dated 21 January 1985 from Mr Polglase, and if so, the extent to which he discussed its terms with Jack. The defendants submit that Mr Gosatti was Jack's agent and, the issue having been raised, the plaintiffs might have been expected to call their agent to give evidence on these topics. The plaintiffs on the other hand submit that it is the defendants who seek to reply upon the communication of the assertions contained in the letter of 21 January 1985 to Jack, and that therefore any adverse inference to be drawn from the failure to call Mr Gosatti should be drawn against the defendants. The plaintiffs also point to the fact, not disputed by the defendants, that they had access to, and took a statement from, Mr Gosatti.

207 In the face of these competing submissions it is to be remembered that the contentious correspondence was created more than 25 years prior to the trial. It would perhaps be surprising if any accountant had a specific recollection of the receipt of a particular letter 25 years ago. Given this obvious fact, and my view that the competing contentions of the parties on this subject are fairly evenly weighted, I think it would be unwise to draw any inference from the failure of any party to call Mr Gosatti to give evidence.

208 The document to which I have referred is on the file of Francis A Jones & Associates and is prominently stamped 'copy'. Although there was no evidence of the file maintenance methods used within that office, the stamped notation suggests that there was a procedure whereby copies of letters sent were retained on file. Further, it might be expected that if a letter had been prepared and not sent, any copy of the letter would have been marked accordingly, and there is no evidence of any such marking in relation to the letter of 21 January 1985.

209 The letter enclosed a printout from the general ledger maintained by Italia Limestone, showing payments made to Jack during the year ended 30 June 1984. The ledger shows a number of regular payments of around $300, one larger payment of $1,072 made on 23 December 1983 (presumably including holiday pay and/or a Christmas bonus), and three unusual payments, in round figures of $2,000, $1,000 and $7,000. It can thus be seen from the ledger that there were a number of payments apparently taking the form of wages, and in addition, three irregular payments totalling $10,000.

210 When Jack's income tax return for the year ended 30 June 1984 was submitted, the income which he returned was $10,000 less than that shown in the return prepared by Francis A Jones & Associates. The defendants submit that Mr Gosatti can only have known the amount of contentious drawings for the purposes of deducting them from Jack's return, if he received the ledger printout attached to the letter of 21 January 1985. However, I do not accept that submission for two reasons. First, the three payments were in fact made to Jack, and no doubt could have been identified by him in his banking records. Second, also tendered in evidence was a document produced by the plaintiffs on discovery, being a printout of the entire general ledger of Italia Limestone Company for the year ended 30 June 1984 (tb 3/1438 - 1462). That ledger includes the particular ledger relating to payments made to Jack, and the three payments in question have been ticked in manuscript. So, it seems that at some point Jack received a printout of the general ledger and either he or somebody on his behalf identified the three contentious payments, which provides an alternative source of information to the ledger printout attached to the letter of 21 January 1985.

211 In May 1985 Jack's new accountants, PM Melsom & Co received an assessment of tax in respect of Jack's income for the year ended 30 June 1984 (tb 3/1591). That assessment added to the amount returned, the amount of $10,000, being income from Italia Limestone. A letter from the Australian Taxation Office dated 8 January 1986 to Jack's accountants shows that Jack lodged an objection to that assessment, which was disallowed in January 1986 (tb 4/2122.1).

212 Jack stated during cross-examination that Mr Gosatti had shown him the letter of 16 January 1985 before it went to Francis A Jones & Associates (ts 382). He denied that he had ever seen the letter from Francis A Jones & Associates of 21 January 1985 (ts 383). However, he accepted that he was aware that the request for information and copy documents which had been made by Mr Gosatti had been refused. He asserted in cross-examination that he became aware of this, not as a result of Mr Gosatti telling him he had received a response to the letter, but because each of his father and his mother complained bitterly about him bringing other accountants into their affairs. He further asserted that after recriminations by his father, and a tearful approach by his mother, he instructed Mr Gosatti to 'just do a deal, pay the tax' (ts 387, 494 - 495). Maria gave similar evidence (Maria xn 73 and ts 579, 582 - 583). Maria was quite emphatic that following the approaches by her parents-in-law, she and Jack agreed to drop the issue immediately, to pay the tax, and to instruct Mr Gosatti accordingly.

213 I do not accept this evidence, as it is inconsistent with the documents to which I have already referred, which show that Mr Gosatti lodged a return on behalf of Jack which did not include the contentious $10,000, and then objected to the assessment which included that amount within his taxable income. Far from being resolved 'straight away', as Maria asserted in her evidence, the documents establish that the taxation issue was not resolved until January 1986 when Jack's objection was disallowed.

214 There are other aspects of Jack's evidence on this topic which were unsatisfactory. When the copy of the letter to him from Francis A Jones & Associates dated 21 December 1984 was shown to him, in the context of cross-examination about the time at which he became aware of the dispute, he seized upon the initials 'GOS' shown in the header of that letter to assert that this was a reference to Mr Gosatti, thus showing that Francis A Jones & Associates were aware that Mr Gosatti had by then been engaged (ts 379).

215 However, this was plainly an invention. It is clear that the initials on the letter are those of the author of the letter within the office of Francis A Jones & Associates, and other evidence establishes that a Mr Geoff O'Sullivan was an employee of the firm who had worked on Mr Fazio's taxation affairs (ts 848 - 849).

216 The file maintained by Francis A Jones & Associates on the subject of Western Décor and which was produced on subpoena contains a letter from Mr Gosatti of PM Melsom & Co dated 24 January 1985 addressed to Mr Polglase (tb 4/2085). The letter is concerned with matters related to Western Décor and its accounts, and refers to the fact that a proportion of the interest in the Mandurah land is shown in those accounts. The letter makes no reference to Mr Gosatti's letter of 16 January 1985, nor to any reply, or lack of reply to that letter.

217 Each of the parties ask me to draw some inference from that omission. However, the fact that Mr Gosatti did not refer to his letter of 16 January 1985, or any reply or lack of reply to that letter may be entirely explained by the fact that his letter of 24 January 1985 concerned a different subject; namely, the financial statements of Western Décor.

218 And in any event, the fact that there is no reference to the letter of 16 January 1985, or any reply or lack of reply to that letter, is ambiguous. On the one hand, it might be suggested that no reply was received on the basis that if a reply had been received, one might have expected Mr Gosatti to refer to it. On the other hand, it might be equally suggested that a reply was in fact received on the basis that if no reply had been received to the letter of 16 January 1985, Mr Gosatti might also have been expected to refer to that fact.

219 Further, the drawing of the former inference would depend upon the proposition that the letter from Mr Polglase dated 21 January 1985 would have been received by Mr Gosatti at the time he wrote his letter dated 24 January 1985. Such an inference could perhaps be drawn if it were known that the letter dated 21 January 1985 was posted on that date (which was a Monday), and the letter dated 24 January 1985 was dictated on that date. However, it is quite possible that the letter dated 21 January 1985 was not posted until the next day, or that the letter dated 24 January 1985 was dictated on the previous day. The process of reasoning would also rely upon an untested assumption that there were no difficulties in relation to postal deliveries at that time.

220 Further, the drawing of the latter inference referred to above depends upon the assumption that Mr Gosatti would have thought it significant and so worth mentioning, if he had not yet received a response to his letter of 16 January 1985, seven days after he had sent his previous letter. This does not seem to me to be a legitimate assumption to make.

221 Because of these various uncertainties, it seems to me to be quite unsafe to draw any inference as to the transmission or receipt of the letter dated 21 January 1985, from the terms of the letter dated 24 January 1985.

222 During her evidence-in-chief Maria related a conversation with Jack concerning the prospect of suing Italia in relation to the tax issue (Maria xn 72). This issue was pursued with Jack in cross-examination, when it was put to him that he had discussed the prospect of suing the partnership with Mr Gosatti (ts 495). He answered that he was sure that Mr Gosatti had mentioned that he would have to take legal action against the partnership in relation to the tax issue. However, he denied that this conversation took place after Mr Gosatti had received the letter from Francis A Jones & Associates. This denial is implausible.

223 It seems inherently implausible that Francis A Jones & Associates would not have replied to Mr Gosatti's letter or that in the absence of a response, Mr Gosatti would not have, at some point, pressed them for a reply. It seems equally improbable that Mr Gosatti would have given advice to Jack about the possibility of suing the partnership without receiving a response to his letter. Jack and Maria sought to overcome these difficulties by suggesting that the chain of communication was through their parents-in-law, whose entreaties they immediately accepted. However, I have rejected that evidence as it is inconsistent with the steps which Jack actually took in relation to his taxation liability.

224 There is no doubt that Jack was aware that Mr Gosatti had requested partnership information from Francis A Jones & Associates. He provided those instructions to Mr Gosatti and saw a copy of the letter before it went. No doubt at the time he gave those instructions he would have been aware that, as a partner, he was entitled to the partnership documents. As will be seen, he expressly asserted that right in a letter he wrote to Francis A Jones & Associates in 1993, and threatened legal proceedings to enforce it. He was also aware that his request for access had been refused, whether as a result of the altercation with his parents, or, as I think more likely, as a result of being told by Mr Gosatti of the response which he had received to his request for information. Equally clearly, Jack took his request for information no further. I think the most likely explanation for his failure to pursue the matter is because he was well aware that he had renounced his rights to the partnership and was therefore not entitled to partnership documents. That conclusion is supported by Jack's evidence that he never discussed with Mr Gosatti the possibility of legal action to establish an interest in the partnership (ts 496).

225 For these various reasons, I conclude that it is more likely than not that the letter dated 21 January 1984 was sent on or about that date, and received by Mr Gosatti shortly thereafter. I also conclude that it is more likely than not that Mr Gosatti communicated the contents of the letter to Jack.

226 In any event, irrespective of whether or not the letter of 21 January 1985 was actually sent or actually received by Mr Gosatti, there is no doubt that it was written by Mr Polglase, as a copy of it exists on the file produced on subpoena. The letter expressly records that Mr Polglase had been advised by Vince that Jack had reached an agreement whereby he had been paid in full for his interest in the partnership. It is therefore a fair inference from that letter, which I draw, that Vince in fact gave those instructions to Mr Polglase with a view to them being communicated to Jack. It seems to me to be highly unlikely that Vince would have given those instructions to Mr Polglase, with a view to them being communicated to Jack if no such agreement had in fact been reached. Vince had no motive to mislead Mr Polglase as to Jack's membership of the partnership, as there was then no live dispute on that issue. Further, if Vince had given those instructions to Mr Polglase with the view to them being communicated to Jack, as I have found, Vince would surely have understood that such an assertion would be pointless if it were not true, as Jack would no doubt refute it.

227 Accordingly, irrespective of whether or not the letter of 21 January 1985 was sent, or received by Mr Gosatti, or whether its terms were passed on by Mr Gosatti to Jack, the fact that the letter was written at all appears to me to provide cogent evidence as to the likely sequence of events during 1984.

228 The plaintiffs accept that after 1984 none of the usual indicia of partnership suggested that Jack remained a partner in Italia Limestone. He did not receive any share of partnership profits, nor did he return any partnership income in his own taxation returns. Given his evidence with respect to the magnitude of the dispute that had arisen in relation to his taxation liability in respect of partnership profits during the year ended 30 June 1984, the significance of this cannot have escaped his attention. Similarly, he would have been well aware that he was no longer required to pay provisional tax in respect of anticipated partnership profits. Before 1984 he was called upon to sign legal documents relating to partnership affairs, but after 1984 he was not called upon to sign any such documents. He never asked for, nor received partnership accounts after 1984, and never enquired, nor was he advised in any detail as to the state of the partnership's assets and liabilities until he asserted an interest in the partnership in December 2003. He was never called upon to contribute capital to the partnership. He was not called upon to guarantee any partnership borrowings after 1984, nor was it ever suggested that he would be responsible for partnership debts, notwithstanding the financial difficulties which the partnership suffered in the early 1990s. Jack also accepts that when preparing statements of his own assets and liabilities for the purpose of borrowing, at no time after 1984 did he refer to a partnership interest in those statements, as either an asset or a liability.

229 Obviously these are massive hurdles in the path of the plaintiffs proposition that Jack remained, or believed he remained a partner in Italia Limestone after 1984, and the alternative proposition that Guiseppina and Vince's estate are estopped from denying that he remained a partner. However, the plaintiffs seek to overcome those hurdles by pointing to a number of transactions subsequent to 1984 which they say provide evidence of Jack's continuing membership of the partnership, or of his reliance upon representations to the effect that he remained a partner, or would otherwise share in one-third of the 'Fazio family assets' before or upon Vince's death. I will turn now to each of those transactions.

230 In 1987 Jack caused a company which he controlled to acquire a property known as Hope Valley (Jack xn 187). His main intention was to develop a tourist and cottage industry development with chalets built from the biscuity limestone on the property. While there was some limestone on the property, it was not a big deposit (ts 441). Jack stated in evidence that before he bought the land he said to Vince 'if Italia is interested, it can buy in as well' (Jack xn 187).

231 If such an offer was made, it does not appear to me to be consistent with Jack continuing to be a partner in Italia Limestone. Rather, the offer was that Italia Limestone could acquire an interest in addition to the interest being acquired by Jack through the company which he controlled.

232 Jack asserts that his father declined the offer but in terms to the effect that if he held the land, the land would always be there for Italia anyway. There is no other evidence corroborating Jack's testimony in this regard, but even if Vince did speak in those terms (which I rather doubt) it certainly did not amount to any representation, either express or implied, to the effect that Jack was a member of the partnership or held a share in other assets. Put at its highest, such a statement would merely connote that as long as Jack held the land, there would be a possibility of a transaction within the family.

233 In fact that is precisely what occurred when Italia later acquired stone from the property. The stone was quarried by a company under Jack's control, and sold to Italia on arms-length commercial terms (ts 442). There is nothing in those dealings which would support the plaintiffs' case. To the contrary, those dealings suggest that Jack and his interests were kept separate and distinct from the interests of Italia Limestone, and that dealings between the respective entities were undertaken at arms-length.

234 Jack also asserts that in late 1989 he was being pressed by Italia's competitors to supply limestone to them in order that they might tender for the construction of a breakwater in Jervoise Bay. He asserts that his father requested that he not make the land available to them, and that he complied with that request (Jack xn 191). Italia was then successful in the tender (with a joint venture partner), and acquired some of the stone from the Hope Valley property, on arms-length commercial terms.

235 Given Jack's evidence that the Hope Valley property did not contain a large limestone resource, it is unlikely that his position would have had a significant impact upon the outcome of the tender process to which he referred in evidence. Further and in any event, the implicit arrangement he made with his father to the effect that Italia would take limestone from his property on market terms conferred a financial benefit upon him in the event of Italia's successful tender. There is nothing in a transaction of that kind which supports the plaintiffs' case.

236 In 1988 a company controlled by Jack became a member of a syndicate which acquired a limestone resource near Mount Barker. His evidence was that he thought Italia might be interested in becoming involved, and he spoke to his father about it (Jack xn 196). His father declined. Jack did not suggest in his evidence that he offered the entire venture to his father; rather, that Italia was given an opportunity to join the syndicate. There is nothing in this sequence of events which would support the plaintiffs' contentions. To the contrary, the fact that Jack invited Italia to take a separate interest in a project in which he had his own interest is, if anything, inconsistent with the various propositions the plaintiffs advance.

237 Jack's evidence was to the effect that a company associated with Vince undertook some of the cartage work in respect of the stone produced at Mount Barker (ts 444). However, this was on commercial terms. Obviously a cartage arrangement on commercial terms provides no support to the plaintiffs' case.

238 Jack's evidence-in-chief was to the effect that in 1988 Vince contacted him and sought his assistance with an urgent problem which confronted Italia Limestone (Jack xn 207). He stated that his father told him that he had deferred invoicing Lime Industries for limestone supplied, and that Italia was owed $500,000, and in addition had a substantial stockpile of limestone on Lime Industries land. Jack said that his father told him that Ray Levin, the general manager of Lime Industries had told him that the company was in liquidation and Italia was its biggest creditor. Jack asserted in evidence that he considered that he was being brought in because he was a partner in Italia, and therefore Italia's problems were his problems.

239 According to Jack, he participated in negotiations involving his father and one of the proprietors of Lime Industries, Mr Menchetti, and the general manager, Mr Levin (Jack xn 208). According to Jack, the essence of those negotiations was that Lime Industries had an urgent requirement for capital, without which it would likely fail, to the detriment of its major creditor, Italia.

240 He asserts that he was involved in the negotiations which resulted in an agreement whereby a company incorporated under his father's instructions, Radroc Pty Ltd, acquired 45% of Lime Industries (Jack xn 212). He further asserted in evidence that during a meeting with Edmond Frichot, his father's solicitor, Mr Frichot told him that he had been instructed that Vince 'has put 10% aside for you as he did not build your house' (Jack xn 210). In the result, the shares in Radroc were held as to 90% by Danehill, and as to 10% by MG Constructions, a company controlled by Jack. Jack paid nothing for his interest.

241 Jack's version of these events is in many instances inconsistent with the contemporaneous documents. A letter dated 16 September 1988 from Lime Industries to Vince offers a 45% interest in the Lime Industries business for a price of $1.546 million (tb 7A/4238). There is nothing in the letter which suggests any degree of urgency or financial stringency, or that Lime Industries was substantially indebted to Italia.

242 The proposal was varied by a letter to Vince dated 13 October 1988, but again, there is nothing in the terms of that letter which would corroborate Jack's evidence as to financial stringency (tb 8/4277). To the contrary, this letter contained a proposal whereby part of the transaction would involve a loan by Italia which would not bear interest and which would be forgiven in the event that a certain level of profit was achieved.

243 Also in evidence is a letter to Vince from Ernst & Whinney, accountants, dated 11 November 1988 (tb 8/4300). It seems a clear inference from the letter that Ernst & Whinney had been engaged to investigate the financial position of Lime Industries, as the letter provides a report on those investigations. Contrary to Jack's evidence, the accountants reported that while the business had been put into receivership in 1985, it had successfully traded out and restructured, and had performed well financially since 1987. The report contains an analysis of debtors. No reference to a debt to Italia in the amount of $500,000 is contained in the report. Further, the report analyses stock on hand, and refers to limestone with a value of approximately $38,000. This is inconsistent with Jack's assertion that there was a large stock of Italia's limestone on Lime Industries property. The documentary evidence leads me to conclude that it is extremely improbable that Vince would have told Jack that Lime Industries was in liquidation and owed Italia $500,000, as neither of those things was true. Their falsity would have become immediately apparent to Jack, if he was an active participant in the negotiations he alleges.

244 There is also a clear inference from the documents tendered in evidence relating to this transaction that the negotiations were primarily conducted between Vince and Mr Levin. There is no particular reference to Jack in any of the documents.

245 When confronted with the inconsistencies between his version of events and the contemporaneous documents in cross-examination, Jack stuck doggedly but implausibly to his evidence. At one point he suggested that the $500,000 outstanding in respect of limestone supplied might have been paid separately to the transaction reflected in the documents, or perhaps resulted in the reduction in purchase price (ts 289, 292 and 295). This was sheer speculation on his part, for which there is no evidence. The plaintiffs' submission that the accounts of Radroc, which put the value of its interest in Lime Industries at $800,000, supports an inference that part of the purchase price was paid by a forgiveness of liability is also entirely speculative, as the amounts involved are just as readily explained by the loan component of the transaction. Further, Jack's evidence that there was a massive stockpile of Italia's limestone on Lime Industries land is entirely inconsistent with the investigating accountant's report.

246 In fact the investment in Lime Industries proved very successful. The profit targets were reached, with the result that Italia's loans were forgiven. In the result, the 10% interest in Radroc which was taken up by Jack through his company MG Constructions realised a profit of $680,000 with no capital contribution having been made by Jack (tb 37/18285).

247 During cross-examination Jack asserted that he had put money into the Lime Industries business, in the form of the money he had foregone as a result of Vince not building him a house to the value of $120,000 (ts 452). I have concluded that Vince never agreed to build such a house and in any event, given that Jack and Maria sold lot 209 Barrett Street without reference or even notice to Vince at a time when he had caused plans to be prepared and was obtaining the necessary approvals, it seems inherently implausible that four or five years later he would have linked his gift of 10% in Radroc to his earlier offer to build Jack and Maria a house.

248 It must have been obvious to Jack that Vince's gift to him of 10% of Radroc, which was held separately by him through a company which he controlled, was fundamentally inconsistent with the propositions that he remained a partner in Italia Limestone (the partners in which held the other 90% of Radroc through Danehill), or that he was to receive one-third of the 'Fazio family assets'. His version of the events relating to the investment in Lime Industries, and his attempt to link his interest in that investment to some earlier promise by Vince to build him a house for free constituted an unsuccessful attempt to rationalise a transaction which provides cogent evidence contrary to the propositions advanced by the plaintiffs in this case.

249 In late 1989, Jack identified land at Nowergup containing a limestone resource. He says that he told his father about the quarry, and that his father replied that he was not interested in cutting stone from the land, but that he would take some of the limestone for Lime Industries (Jack xn 216).

250 Jack acquired a licence to quarry limestone from the land, and commenced operations through a business which he controlled; namely, Newmarket Limestone (Jack xn 218). There was an arrangement whereby Italia supplied men and equipment to create the floor and move the cap-rock for the quarry. Jack's evidence was that the Italia machine broke down, with the result that other contractors were engaged. Guiseppina's evidence is that after Italia had been there for some time creating the floor for Jack's quarry, Jack had asked Vince to leave and would not pay for the work done (Guiseppina xn 326 et seq). It is unnecessary to resolve this conflict in the evidence, because neither version of events supports the plaintiffs' case.

251 A statement from a Mr Joseph Tropiano was also tendered in evidence. His evidence was that he acquired cut stone from the Nowergup quarry operated by Jack. He did however confirm that he had also acquired dimension stone from Italia Limestone, although in relatively small quantities (Tropiano xn 5). It is not entirely clear from the evidence whether this occurred while Jack continued to operate the Nowergup quarry. If it did, it would mean that, contrary to Jack's assertions, there was a point in time at which his quarry and operation was in competition with Italia Limestone's business. This would obviously be inconsistent with the proposition that he remained, or believed he remained, a partner in Italia Limestone. However, the uncertainty of evidence with respect to the relative times involved prevents the drawing of this conclusion. But in any case, there is nothing in the Nowergup quarry transaction which supports the plaintiffs' case.

252 Jack's evidence was that in or about 1988 or 1989, he saw an advertisement for the sale and leaseback of a quarry in Dawesville, on the Old Coast Road (Jack xn 222). He negotiated a contract for the purchase of the land, and a lease back to the vendor through a company, Sambuca Holdings Pty Ltd, which was controlled by him and an associate, Silvano Chillino.

253 According to Jack, he then contacted Vince and asked him if he wished to acquire half the interest (Jack xn 223).

254 I pause at this point to observe that there is nothing in this sequence of events which supports the plaintiffs' case. To the contrary, the fact that Jack negotiated the acquisition and leaseback of the quarry on the land without reference to his father, in his own right, and the right of another associate, and only then offered his father a part interest in the property is inconsistent with his assertion that he remained a partner in Italia, or believed he remained a partner.

255 Jack asserts that when his father declined to take an interest in the land, he told his father that he would keep half of the land in a company which he controlled, Goldbar Holdings Pty Ltd, so that the land would be available for Italia. He said that his father was happy with this arrangement (Jack xn 223).

256 There is no evidence to corroborate this aspect of Jack's testimony. Given that Vince had declined an interest in the project, it is implausible that Jack would purport to set aside half of it against the contingency that Vince might want an interest. I do not accept that aspect of Jack's evidence.

257 Jack also gave evidence that as a result of the financial failure of the licensee of the quarry, Sambuca came under financial pressure, as a result of which his father agreed to sign an offer to purchase the quarry in order to keep the bank at bay (Jack xn 228). There is no evidence to support this proposition although there is evidence from Rudy, Sarina, and Guiseppina that Vince became interested in acquiring the property, and discussed that prospect with Jack, especially in the light of the opportunities to tender for work in the Dawesville area, including the work associated with the Dawesville Cut (Rudy xn 633, Sarina xn 320 and Guiseppina xn 302).

258 Jack asserts that he told Vince that he was proposing to sell the property to WA Limestone, and that Vince declined an interest in acquiring it for himself, and encouraged him to sell (Jack xn 229). That evidence is contrary to the evidence of each of Rudy, Sarina and Guiseppina, to the effect that Vince was interested in acquiring the property, and was upset when he discovered that Jack had agreed to sell the property to Italia's main competitor, WA Limestone, for a price less than the price that Vince had been discussing with Jack. Jack admitted that the price at which he sold to WA Limestone was less than the price he had been discussing with his father (ts 455). The defendants rely on this evidence to assert that if Jack believed he was a partner, it is unlikely that he would have dealt with a competitor of the partnership without exhausting the possibility of a sale to his father. I accept that submission.

259 It is clear is that Jack's interest in the Dawesville property was acquired on his own account and for his own benefit. Italia never acquired an interest in the property. There is nothing in the Dawesville transaction which supports the plaintiffs' case, and the events relating to the sale of the property support the defendants' case.

260 Jack gave evidence-in-chief that in 1990 he was 'on the lookout for another sandpit for Italia because the Miguel Road sandpit was nearing the end of its life' (Jack xn 236). In that context he became aware of a large sandpit in Rowley Road, Wattleup, which he drew to the attention of his father and Sam Catalano. He stated that he was instructed by his father to go ahead and negotiate for Italia to secure the property for purchase (Jack xn 237).

261 Jack stated that he used a shelf company which he had acquired some time before, Kawina Pty Ltd, to make the first offer for the Rowley Road sandpit. He further asserted that he arranged for Vince and Sam Catalano to each become a director of Kawina, together with Jack and his wife Maria (Jack xn 238). As he acknowledged in his evidence-in-chief, Kawina Pty Ltd was the trustee of the Kawina Unit Trust.

262 According to Jack, he negotiated the transaction with representatives of the vendor, who were members of the Lombardo family. The transaction involved the vendors taking property owned by Danehill in part exchange. Jack further stated that when Italia got into financial difficulties in 1991, his father told him that he needed a joint venture partner to go 50/50 with Italia in the deal. Jack stated in evidence that up to this point, he considered all his actions to have been undertaken on behalf of Italia, because he was a part of Italia (Jack xn 240).

263 Jack asserts that pursuant to his father's instructions he spent considerable time introducing prospective joint venture partners, and in the result, was successful in introducing the Roncis, who agreed to acquire a 50% interest in the property with Italia. The transaction with Kawina was then cancelled, and instead a transaction undertaken through Questdale Holdings Pty Ltd, a company which Jack asserts he set up (Jack xn 243). Questdale acquired the property on behalf of the Frankland Sand Supply Unit Trust. Half the units in that trust were held by a company representing the Ronci family, and the other half of the units held by Renmore Pty Ltd representing Italia's interest.

I brought the Rowley Road deal to Italia because I believed I was still a partner in Italia and I was still committed to its success. Had I not believed that I was a partner in the partnership I could have taken the Rowley Road pit to any of Italia's competitors, who would have been very interested to buy into that property with me. (Jack xn 244)

However, Jack's version of these events is inconsistent with the contemporaneous documents. For the reasons which I will now set out, I do not accept that he was motivated by any objective of furthering Italia's interests, or that he believed he was a partner in Italia at the time.

265 A contract for the acquisition of the Rowley Road property by Kawina Holdings Pty Ltd and dated 29 September 1990 is in evidence (tb 11/5913). Also in evidence is the trust deed for the Kawina Unit Trust dated 14 September 1990 (tb 11/5880). The trustee of that trust is Kawina. At the time of its creation, eight units were issued in the unit trust. Four were issued to Jack, and the other four to Danehill. The trust deed is signed by Jack in his own capacity, and in his capacity as a director of Kawina. It is therefore clear that, from the very beginning, Jack's objective was to take a 50% interest in the Rowley Road property for himself. The fact that the transaction was structured so as to provide him with a discrete interest in his own right, separate and distinct from the interest acquired by the Italia partners through Danehill, is fundamentally inconsistent with his evidence that he was interested in acquiring the property for Italia, because of his belief that he was a partner in Italia.

266 There is a sequence of Jack's cross-examination when the structure of Kawina was put to him which tells very strongly against his credibility generally:

That company [Kawina] was a trustee for a unit trust in which the units were held equally by you and by Danehill?---It was set up like that by the Frichots, yes, correct.

Yes, but you had a direct commercial interest of your own in this venture?---What happened, we - - -

Can we not just try to keep - is what I put to you accurate?---The paperwork shows that, but its not quite like that. We instructed Frichot & Frichot to - me and my father were looking at this property and when I picked up the file they did it Danehill and myself, but that doesn't mean that at the end - we don't know whose going to take what because the deal is not finalised.

Mr Fazio, the truth is that a company was set up. It was the trustee of the unit trust. The units were held equally by you and Danehill. It's as simple as that, isn't it?---Yes, that's the paperwork.

Right, and you had a personal interest in this venture?---No, I don't see it that way, no, not at all.

You were going to have in commercial terms 50 per cent of it along with Danehill having 50 per cent?---No, absolutely not, no.

What was going to happen to your 50 per cent?---I've just explained myself.

What was going to happen to it?---I didn't have 50 per cent. The situation was that I instructed Frichot that me and my father were looking at land at Rowley Road, to use a shelf company, so they put Danehill 50 per cent, myself 50 per cent.

Without your knowledge or consent?---They just did it and when we picked up the file that's how it was and - - - .(ts 456 - 457)

267 It is to be remembered when considering this evidence that Jack signed the Kawina trust deed in two capacities. His assertion that the solicitors structured the unit trust so that he held half of the issued units, and Danehill half of the issued units of their own volition, without instructions, is inherently implausible. His assertion that he did not see himself as having a personal interest in the transaction at that time is contrary to the evidence and must be rejected.

268 Jack also asserted in cross-examination that he did not have any money to buy the property (ts 460). That assertion is consistent with the fact that Kawina failed to pay the deposit due under the contract to which I have referred, and the contract lapsed (tb 11/5961). Following the lapse of that contract, a second contract was entered into by Kawina on 13 December 1990 (tb 11/5976). That contract also lapsed because of Kawina's default in failing to pay part of the deposit (tb 11/6100).

269 In the result the land was acquired by Questdale pursuant to a contract executed on 31 May 1991 (tb 12/6218).

270 There is evidence that Jack was still involved in the negotiations in May 1991 (tb 12/6191). Further, Mr Angelo Lombardo gave evidence to the effect that the initial negotiations for the acquisition of the property were principally conducted by Jack (A Lombardo xn 6). That evidence is of course explicable by reference to Jack's personal interest in the transaction, through the 50% interest he was endeavouring to acquire through Kawina. That would also explain Mr Lombardo's evidence to the effect that he understood Vince and Jack were working together towards the acquisition of the land (A Lombardo xn 8). However, Mr Lombardo's evidence, given in cross-examination, was that, at least by the time of the third contract, the Questdale contract, it was Vince who was the one who was pushing to acquire the land (ts 600). This is consistent with the fact that by then Jack no longer had any personal interest in the transaction.

271 Jack asserted in his evidence-in-chief, and in cross-examination, that he 'set up' Questdale and the Questdale transaction (Jack xn 243). However, the evidence of Livia Ronci was that her accountant, Mr David Bycroft, obtained a shelf company called Questdale Holdings Pty Ltd for her and her husband (L Ronci xn 67). Ms Ronci denies that Jack had any involvement in the incorporation of Questdale (L Ronci xn 69). Given the adverse finding I have made in relation to Jack's credibility with respect to this transaction and generally, I accept Ms Ronci's evidence in preference to that given by Jack on this topic.

272 There is no doubt that the Rowley Road property has appreciated in value very significantly since its acquisition, to the benefit of those with beneficial interests in the Frankland Unit Trust. There is also no doubt that Jack was involved in identifying the acquisition and negotiating its terms. However, his role in that regard is explicable by reference to the personal interest he was hoping to acquire in the transaction, but which he was unable to fund. I find that he was motivated primarily by his own interests, and that although he remained involved in the negotiations after the point at which he had no prospect of acquiring a personal interest, that is not to be attributed to any belief that he was a partner in Italia or was to receive an interest in the asset being acquired, but, most likely, due to familial considerations. The fact that Jack initially structured the transaction so as to take a personal interest, separate and distinct from the interest taken from the Italia partners is fundamentally inconsistent with his assertion that he believed that he remained a partner in Italia, or that he would in any event receive one third of the 'Fazio family assets'. There is nothing in the Rowley Road transaction which assists the plaintiff's case.

273 In 1984 Danehill unsuccessfully tendered to carry out earth works at Lot 22 Flynn Drive (ts 447 and tb 3/1371). In 1988, a company which Jack controlled, Goldbar Holdings Pty Ltd (Goldbar), acquired the business of quarrying limestone at the property in Flynn Drive from Gimela Nominees Pty Ltd, a company associated with Mr Gino Stati (tb 9/4581). Mr Stati was associated with Jack in the Mount Barker stone venture.

274 Jack asserted in examination-in-chief that 'the whole idea of this was that Italia Limestone could use Gino's, or Goldbar's arrangement with ILDA to obtain the right to enter the property and carry out such an operation even though it missed out on the original tender' (Jack xn 201). There is no evidence to sustain this proposition. On the contrary, the documentary evidence shows that the business was acquired by Jack's company not by Italia Limestone.

275 Jack also referred in his evidence-in-chief to a letter written by his father in June 1990 to the Industrial Lands Development Authority (ILDA) proposing that Danehill be allowed rights to quarry a portion of land in the Flynn Drive quarry not included in the tender in 1984 (ts 448). In that letter there is a reference to negotiations conducted by Vince and Jack with ILDA (tb 11/5806). However, Jack explained in cross-examination that the proposal which was being put to ILDA by that letter was a proposal that Goldbar would cut dimension stone from the property, and Italia would obtain limestone rubble for use as roadbase (ts 449). Jack accepted that the proposal, had it been accepted, would have benefited both Goldbar and Italia.

276 In the result, the proposal was not accepted and it seems that Jack, through his company Goldbar, sold his interest in the business back to Mr Stati, through Mr Stati's company Gimela Nominees (tb 10/5313).

277 In summary therefore, there is no documentary evidence which is consistent with Jack's assertion that he acquired his interest in the Flynn Drive Quarry in order to further Italia's interest, and I reject his evidence to that effect. While there were negotiations which would have resulted in Italia quarrying limestone from the property, the proposal was that it do so as part of a joint venture with a company controlled by Jack. The fact that this proposal was structured in a way which provided Jack with an interest separate and discrete from Italia Limestone's interest is fundamentally inconsistent with the proposition that Jack was, or believed he was, a partner in Italia, or would receive one-third of all the 'Fazio family assets'. There is nothing in the Flynn Drive transaction which supports the plaintiffs' case.

278 Jack gave evidence that following the failure of the proposal relating to Flynn Drive he approached the owner of other land in the vicinity with a view to securing a lease for quarrying limestone. He asserts that he did so on behalf of Italia (Jack xn 203). However, he accepted in cross-examination that Vince was not interested in the property (ts 450). At all events, nothing came of the proposal, and no interest was acquired in the land.

279 Given Jack's evidence that his father was not interested in acquiring an interest in the property, it seems improbable that he would have authorised Jack to pursue it on behalf of Italia. For that reason, I do not accept Jack's evidence to that effect. Further and in any event the evidence does not suggest that his involvement in the pursuit of this property was protracted or significant. There is nothing in this inchoate transaction which supports the plaintiffs' case.

280 In about 1990 - 1991, the partners in Italia limestone held a 50% interest in a business called Donnybrook Stone. The other half of the business was controlled by Mr John McPhee. Jack gave evidence to the effect that he assisted his father in negotiations with Mr McPhee for the acquisition of his interest (Jack xn 246). However, in cross-examination, he stated that he simply happened to be with his father at the office of Frichot & Frichot the day that the negotiations took place (ts 461).

281 Further, the documentary evidence establishes that the negotiations culminated in a very complicated agreement embodied in a deed of settlement made between nine different parties (tb 9/4948). Jack accepted in cross-examination that he had never seen the deed before and that he had no part in negotiating its terms (ts 461).

282 Jack also gave evidence to the effect that he introduced Mr Bill Clough to the Donnybrook Stone business, and Mr Clough proposed to promote Donnybrook Stone's product at a trade fair in South Korea. Jack's evidence-in-chief was that this promotion cost him approximately $9,000 (Jack xn 247).

283 However, in cross-examination it emerged that Jack had a joint interest with Mr Clough in a business which held a liquor licence and when that business was sold, Mr Clough withheld $8,000 or $9,000 from Jack's share of the sale price to reimburse costs incurred in the promotion of Donnybrook Stone at the trade fair (ts 463). Jack accepted in cross-examination that he never sought reimbursement of that money from his father.

284 So, in summary, to the extent that Jack was involved in negotiations for the acquisition of Mr McPhee's interest in Donnybrook Stone his role appears to have been marginal and coincidental. To the extent that he bore the cost of promoting the business at a trade fair in South Korea, that seems to have come about because he forewent an opportunity to seek reimbursement from his father. These matters do not materially advance the plaintiffs' case.

285 Mr Chen was a member of a syndicate that owned the G & R Wills Building - a transaction to which I will refer below. Jack gave evidence that in 1988 he introduced Mr Chen to his father, because Mr Chen had expressed interest in exporting Donnybrook Stone to Singapore (Jack xn 205). According to Jack, he took Mr Chen to meet his father at the warehouse where the Donnybrook Stone was cut and packaged, and Mr Chen was shown over the operation.

286 There is no evidence to the effect that anything came of this introduction. It is difficult to see how Jack's role in such a limited and insignificant event could materially advance the plaintiffs' case.

287 The Clink nightclub in situated in the basement of the Casablanca building in South Terrace, Fremantle. I have referred above to my findings in respect of the acquisition of that property by Anham. Jack gave evidence that he filled out an application for planning approval for the development of the nightclub in 1990, and submitted that application to the local government (Jack xn 154 and tb 11/5948).

288 However, that application was withdrawn and planning approval was not obtained until a subsequent application was made in 1992. Jack was not involved in that application (ts 426).

289 There was no suggestion that the nightclub was partnership property. The Catalanos had no interest in it. Accordingly, Jack's involvement in the planning application is not relevant to his claimed interest in the partnership. Further, the very limited nature of his involvement makes it difficult to see how this evidence materially advances the plaintiffs' case regarding a claim to a share of the Fazio family assets.

290 Jack gave evidence that in about 1991 or 1992 he was experiencing difficulties in a limestone quarrying operation he was conducting from land in Nowergup (Jack xn 248). There is no suggestion that the Nowergup operation was conducted by or on behalf of Italia Limestone. Because of the difficulties Jack was encountering, he sought additional limestone resources, and was introduced to a property at Seabird which contained a resource. Jack and Maria acquired that land through a company which they controlled, Packham Pty Ltd, pursuant to a contract dated 23 September 1993 (tb 15/8043). The contract provided for the acquisition of the land by instalments over three years.

291 Jack gave evidence that when it came time to settle the property in 1995, he offered the land to Italia (Jack xn 249). However, his father declined the offer because of his view that the limestone resource was too far away from the market. He asserts that his father went on to say that it was good that he had some land there, because if one day Italia needed the limestone resource it would be available. However, that proposition appears to me to be implausible given that Italia had no interest in the land and, I do not accept that part of Jack's evidence on this topic.

292 In cross-examination Jack accepted that limestone rubble was taken from the Seabird land by WA Limestone, a competitor of Italia's (ts 465). In his evidence he endeavoured to suggest that the stone was simply taken by WA Limestone without prior negotiation. That proposition seems improbable, and I reject it.

293 There is nothing in the Seabird transaction which supports the plaintiffs' case. To the contrary, the fact that limestone was supplied from the Seabird land to one of Italia Limestone's competitors is inconsistent with the proposition that Jack was or, believed he was, a partner in Italia Limestone.

294 In 1988, Jack was introduced to a property situated on the corner of King Street and Wellington Street in Perth known as the G & R Wills Building. The land was offered for sale by G & R Wills (Holdings) Ltd on the basis that the vendor would take a lease back of the premises. Jack put together a syndicate which took a 50% interest in the property, in conjunction with another group which took the other 50%. The property was acquired by a company Quisquous Pty Ltd (Quisquous) in which the various investors held interests. Jack introduced his father to the investment, and his father agreed to take an interest through Anham. Jack also took an interest through differing levels of interest in various corporate entities. It is difficult to identify the precise mathematical extent of his personal interest in the project, but it appears to be 19.5%, and this is a significant amount.

295 I digress to observe that up to this point in the transaction, there is no aspect of it which supports the plaintiffs' case, given that, in essence, Jack and Vince were each undertaking an investment in conjunction with others through their respective corporate entities.

296 The acquisition of the building by Quisquous was financed in part by an advance of $2.3 million by Resi-Statewide Mortgage Corporation Ltd, secured by a mortgage over the property (tb 7A/4041). It appears that the funds were advanced for a term of five years (tb 13A/7316).

297 Jack gave evidence that in 1990 rising interest rates meant that the rental was insufficient to meet the borrower's repayments to the mortgagee (Jack xn 263). Further, in 1992, the tenant, G & R Wills did not renew their option to remain in occupation, leaving the property vacant. Jack's attempts to secure another tenant for the property were unsuccessful.

298 It is clear that the investors were placed under significant financial pressure as a consequence of rising interest rates and the loss of rental income. Various notices of demand were issued by the lender, and Quisquous made attempts to secure alternative finance (see for example tb 13/7152 and tb 12/6176). However, those attempts were not successful (ts 468).

299 It is clear from the contemporaneous documents recording meetings of the investors, that their financial situation was dire. A number of investors were not making their proportionate contributions to the amount required to service the debt. During cross-examination, after initially resisting the proposition, Jack accepted that the syndicate was not making the required payments to the lender, which was pressing for the sale of the building (ts 469).

300 Jack and Maria gave evidence to the effect that the sale of the G & R Wills Building was necessitated because of financial pressure being placed upon Italia by its bankers during 1994 (Jack xn 275 and Maria xn 121).

301 There is evidence that an offer of finance given to Italia during 1994 was conditional upon the sale of the building by the end of that year (tb 16/8602), but that is not to say that this was the only reason the building was sold. To the contrary, the evidence suggests that the inability of the investors to meet their continuing obligations provided every reason for the property to be sold.

302 Jack's evidence, corroborated by Maria, was to the effect that Vince called upon them to assist because Jack was a partner in Italia and Italia was at risk if the issues relating to the G & R Wills Building were not resolved. They assert that this conversation took place in about 1994. They each assert that the property would not have been sold but for Italia's financial difficulties.

303 Their evidence is not consistent with the facts established by the contemporaneous documents which show beyond doubt that the investors in the G & R Wills Building were unable to maintain the requisite payments, with the result that their lender required the property to be sold.

304 By at least October 1992, the Bank of Melbourne took over the interests of the original lender Resi-Statewide. In addition to the funds borrowed from that source, other funds had been borrowed by Quisquous from Westpac (tb 11/5785). As early as September 1992, Westpac was threatening to wind up Quisquous by reason of its default under the terms of its loan, and was advising the guarantors of that debt of their prospective liability (tb 13A/7249). The guarantors included Jack and Vince.

305 As early as July 1992 the investors agreed that a proposal would be put to the Bank of Melbourne for the sale of the building (tb 12/7164). By September 1992, the Bank of Melbourne demanded the provision of additional security, failing which a mortgagee sale was threatened (tb 13A/7259). By October 1992, the Bank of Melbourne advised that it had assumed control of the marketing of the building for sale and had instructed solicitors to commence legal action against all parties relating to the loan facility (tb 13A/7295). There are various notices of demand in evidence, demanding payment in full of all monies due under the mortgage from time to time (see for example tb 13A/7316 and tb 14/7536.15). Although it seems that sale of the building was averted for some time, I do not accept that the sale could have been averted indefinitely.

306 The assertions by each Jack and Maria to the effect that the G & R Wills Building was only sold in order to save Italia from the financial pressures its faced in 1994 are inconsistent with the facts established by the various documents to which I have referred. I do not accept that evidence. I find that the building would have been sold irrespective of Italia's position.

307 In the result, the building was sold in July 1994 at a substantial loss (tb 20/10072). Some collateral issues were addressed in the evidence relating to the G & R Wills Building, including issues relating to the execution of guarantees. However, those issues do not bear upon the issues that require my determination, and it is unnecessary for me to make findings in relation to them.

308 In summary, there is nothing in the structure for the acquisition of interests by each of Vince and Jack in the G & R Wills Building that would support the plaintiff's case, and I have rejected the evidence of Jack and Maria to the effect that the sale of the building was occasioned by their desire to support Italia, and that, in that context, Vince referred to Jack as a partner in Italia. It follows that I have found nothing in the G & R Wills transaction that supports the plaintiffs' case. The fact that Jack took an interest in the investment which was quite separate and discrete from that taken by his father is, if anything, inconsistent with his assertion that he believed he was to receive one-third of all 'Fazio family assets'.

309 I have now set out my findings in relation to all the transactions after 1984 upon which the plaintiffs rely. In general terms, I have not found anything in those transactions which materially advances the plaintiffs' case, and I have found a number of aspects of those transactions which are fundamentally inconsistent with that case.

310 The plaintiffs do not point to any transactions after 1994 which are said to support the conclusion that Jack was, or believed he was, a member of the partnership. They assert that Jack continued to discuss partnership business affairs with his father until 1997, when there was a falling out arising from a dispute concerning the Mandurah land, and the aftermath of the G & R Wills investment. However, there is no specific evidence to corroborate this general assertion, which I reject because of its generality. There is no evidence of any specific involvement by Jack and Maria in any new financial dealings of any kind, with either the partnership or other family members after 1994, which seems to be the point in time at which Jack ceased attempting to involve his father in his investment and business activities. The fact that the plaintiffs concede that Jack took no part whatever in the affairs of the partnership for 11 years prior to the commencement of these proceedings, and that there were none of the usual indicia of partnership over this period, tells strongly against their case.

311 Before returning to address the issues which I am required to determine, it is necessary to make further findings in relation to a series of incidents, commencing in 1994, which were the subject of evidence and which are said to bear upon the issues for determination.

312 Jack gave evidence-in-chief concerning an incident which he and Maria assert took place in the course of a family dinner on a Sunday evening at the house of Vince and Guiseppina (Jack xn 281). According to Jack, his father interrupted the conversation and said that he had something important to talk about. Vince then said 'whoever works at Italia Limestone gets a share of the profits'. According to Jack's evidence-in-chief, Rudy then demanded a share in the profits, after which he intervened and said that Vince should pay Rudy a fair wage - equivalent to that paid to the best worker. According to Jack's evidence-in-chief, his father then banged his fists on the table, asserted that he was the boss and he would do what he wanted. Jack then got up and said to Maria - 'get the three kids ... leave the spaghetti on the table, there's some greedy people on this table, they need to eat it more than us, let's go' and then left with his family. On the version of this incident given by Jack in his evidence-in-chief, it is difficult to comprehend why he and his family would have stormed out. However, a slightly different version of the incident was given by Maria in her evidence-in-chief.

313 According to Maria, Vince said that Rudy wanted a share in the profits because he was working for the business, which Jack opposed, saying:

But the profits need to stay with the business. Rudolf's not a partner. He's not entitled to any profits. I don't get any and I'm a partner so why should he? (Jack xn 82)

314 According to Maria, Vince responded, asserting that he was the boss, that he would keep records of what was to be given to Rudy, and that:

At the end of the day my children are all equal and they will all be treated fairly. A third, a third, a third. (Jack xn 82)

According to Maria, it was after this that Jack made the comment about greed, and left with Maria and their children.

315 In cross-examination, Jack initially denied that he understood Vince's comment to mean that because he was not working at Italia, he would not be getting a share of the profits (ts 410). However, shortly after that denial, he acknowledged that he had protested because that was what he understood his father to mean (ts 410 - 411). Obviously that concession had to be made - otherwise, there was no reason for Jack to storm out, taking his family with him, protesting about greed.

316 Further, in cross-examination Jack asserted that his reference to greed was a reference to Rudy, not to his father (ts 411). If that is correct, it must connote an understanding by Jack that Rudy was receiving a share of profits, whereas he (Jack) was not. That understanding is the only plausible explanation for his abrupt departure from dinner.

317 It is difficult, if not impossible, to reconcile that understanding with a continuing belief that he was a partner. It is also inconsistent with Maria's evidence to the effect that Jack asserted that Rudy was not a partner, and that he (Jack) was. For that reason, I do not accept Maria's evidence that this was said, and note that Jack did not give evidence to that effect. Maria's assertion that Vince stated that all his children would be treated equally, and each would receive one-third of everything, is also inconsistent with her and Jack's evidence to the effect that Vince asserted, forcefully, that he was in control and would do what he liked. Accordingly, I do not accept her evidence that Vince made a statement to the effect that all his children would be treated equally and would receive one-third on this occasion. The fact that Jack and Maria stormed out is also inconsistent with any belief that Jack would receive 'one-third of everything' at the end of the day.

318 Rudy, who was said by each of Jack and Maria to be present, had no recollection of this incident (ts 737).

319 In summary, the evidence given by Jack and Maria in relation of this incident is inconsistent with their assertion that Jack was, or believed he was a partner in Italia. Because I reject Maria's evidence as to what Vince said, the evidence does not support that aspect of their case in which Jack claims one-third of all 'Fazio's family assets', and is inconsistent with that case.

In 2003 at the party for the baptism of one of Sarina's children, Rudy loudly declared to everyone on the table that I 'no longer held any interest in the family business'. (Jack xn 303)

321 According to Jack, this caused him to make inquiries of Francis A Jones & Associates as to whether or not he remained a partner, and to write to his father on 19 November 2003.

322 This is a remarkably brief description of a significant incident, as will be seen from the other evidence given in relation to it. Further, the attempt to link this incident to Jack's letter to his father in November 2003 must be rejected because the baptism of Sarina's eldest child, Joshua, took place on 16 June 2002. Sarina gave evidence to that effect which I accept, as she is unlikely to get an important date like that wrong (Sarina xn 475).

323 Maria's evidence-in-chief on this topic was more expansive. According to her, the conversation commenced by Jack complaining to Vince about Rudy 'getting all this money' (Maria xn 98). On her version of events, Rudy then said that he was getting more money because he was a partner, and Jack was not. According to Maria, Jack denied any knowledge of this and asserted that he had always been a partner and that Vince had said all his children would be treated equally. Jack then reacted angrily picked up a cup of coffee and flung it across the room.

324 Maria also places this incident in 2003 and links it to the investigation which was conducted with respect to the business names registration form relating to the partnership (Maria xn 99). In that respect at least Maria's evidence cannot be accepted, as the event took place almost 18 months earlier in June 2002.

325 Maria's evidence-in-chief also rather understates the position. It is clear that Jack threw the cup towards his father as he admitted in cross-examination (ts 269). The evidence of Rudy was to the effect that Jack threw the coffee cup at his father but that it missed him and hit the wall behind him (Rudy xn 823 - 825). I accept that evidence.

326 Mr Guiseppe Monastra was called by the plaintiffs' to give evidence in relation to this incident. His evidence was that Rudy shouted at Jack words to the effect of, 'You are not in the business anymore. You sold out of the business', after which, Jack responded by denying that assertion (G Monastra xn 23). This is broadly consistent with Rudy's evidence which was to the effect that, in the course of an acrimonious conversation with Jack, Rudy asserted that Jack had taken his share of the business when he got out years earlier after which the coffee cup was thrown at Vince (Rudy xn 820).

327 As with the Sunday dinner incident eight years earlier, the strength of Jack's reaction to the conversation can only be explained by an appreciation that it was being asserted that he had no interest in the partnership, or the family assets. Notwithstanding that appreciation, Jack did not commence proceedings to assert his entitlement to an interest in the partnership, or the family assets until these proceedings were commenced in 2008, 14 years after the Sunday dinner incident in 1994 and a little less than six years after the baptism incident in 2002. The defendants rely upon this inordinate delay for the purposes of defences which they assert by way of limitation, laches, and acquiescence. Irrespective of those defences however, the plaintiffs' lengthy delay in asserting their rights, after the existence of those rights became contentious, casts considerable doubt upon the assertion that Jack believed he was a partner during that extended period of inactivity.

328 On 19 November 2003 Jack wrote to his father seeking 'clarification from you as to what my standing is in regard to the family businesses which I believe I have made some contribution to over the years' (tb 32/15877). Jack states in the letter that the reason he was writing was because he had been told by Rudy that he no longer had any interest in the family businesses.

329 The letter states that Jack would not intend to try to justify an entitlement on the basis of his contributions to the businesses over the years, but instead drew to his father's attention an assertion to the effect that he had been repeatedly told that Vince's three children will be treated as equal. The letter goes on to assert that in reliance upon these assertions, he had not asked for financial statement details or details of legal structures and shareholdings. The letter concludes by requesting that Vince, 'Provide clarification as to what my standing is now and in the future in respect of the family businesses'.

330 It is a matter of considerable significance that Jack did not assert in this letter that he was a partner and had at all times remained a partner. Rather, the only reference made in the letter is to his contributions to 'the family businesses', and to representations by Vince to the effect that the three children would be treated equally. If Jack believed that he was in fact a partner in the business at the time he wrote this letter, it seems most improbable that he would not have asserted that belief in the letter. Accordingly, the terms of the letter reinforce the other evidence to which I have referred which supports the conclusion that Jack did not in fact believe that he was a partner at this time.

332 On 28 November 2003 Jack searched the register of business names relating to Italia Limestone, and saw that Rudy was recorded as a proprietor of the business but that he was not (tb 33/15880). He also saw that he was recorded as having ceased to be a person carrying on the business with effect from July 1984 (tb 2/1033). According to Jack, about a week later he and his wife went to the registry and inspected a copy of the Notice of Change of Particulars dated 22 June 1984. He saw that the form appeared to be signed by him. However, notwithstanding the information which Jack and Maria obtained by conducting these inquiries, it was more than four years later, and only after the death of Vince, that these proceedings were commenced. They seek to justify that delay by reference to representations which they assert were made by Vince, to the effect that he was keeping records, that Jack was a partner, and that all three children would be treated equally (Jack xn 362). Their evidence as to those representations is uncorroborated and is fundamentally inconsistent with the various altercations that had occurred around this topic since at least 1994. I do not accept that evidence.

333 On 8 December 2003 Jack wrote to Francis A Jones & Associates, enclosing a copy of his letter of 19 November 2003 to his father (tb 33/15883). In this letter he asserted that he had been a partner in the business since the early 1960s, and requested all records pertaining to his partnership in Italia Limestone up to the present date. The letter goes on to refer to the recent search conducted of the register of business names, which indicated that Jack ceased being a member of the partnership in 1984, and asserted that those records were incorrect. The letter concluded by requesting co-operation in order to avert the need to instigate legal proceedings to exercise his right to obtain his records.

334 It is clear from the terms of that letter that Jack understood that if he was a partner he was entitled to a copy of the records held by the accountants on behalf of the partnership. As I have already mentioned, Jack's appreciation of his rights as a partner is relevant to the assessment of whether he understood that his request for access to partnership records in early 1985 had been refused because he was not a partner.

335 Mr Cattalini of Francis A Jones & Associates responded by letter dated 15 September 2003 (tb 33/15885). The letter stated:

[W]e have endeavoured to establish your continuance in the above named partnership and have been unable to do so. This is no way is intended to state that you may or may not have a legal right to be identified as a partner.

We accept in good faith your involvement up to 1984 as stated in your fax. Unfortunately we do not hold any records back to this point in time.

Our responsibility to confidentiality precludes us from releasing any records after 1984, which we accept as the relevant date. Should we be able to clarify your legal rights or have the approval of the instructing parties we would gladly release all records we have available.

We stress that we are not as a firm taking a position in this matter but simply following legal procedures.

336 The letter does not expressly assert that Jack was not a partner. However, given Jack's understanding of his entitlements as a partner, and his threat to institute legal proceedings to assert those rights, the firm's rejection of his request to inspect partnership documents was only consistent with the adoption of a position that Jack was not a partner, and must have been seen by Jack as such, notwithstanding the equivocal language used. Jack took no step to vindicate the rights which he had asserted until more than four years later, after the death of his father.

337 Jack gave evidence that in about April 2006 he was told by a party with whom Italia was undertaking a transaction, that he had seen a number of Fazio family names on the transaction documents, but not Jack's (Jack xn 314). According to Jack, he rang Mr Levin, who had by this time commenced employment at Italia Limestone, in order to organise a meeting with his father and Mr Levin. He also rang Mr Cattalini, of Francis A Jones & Associates, and asked him to attend that meeting in order to discuss his partnership interest. According to Jack, he told Mr Cattalini that if he did not receive proper answers he would place caveats on all the properties held in connection with the business (Jack xn 316).

338 According to Jack, he attended his father's office that afternoon for the purposes of the meeting. He heard his father on the telephone speaking to Mr Cattalini about whether or not Jack could put caveats on the company properties. After he had completed that call, Jack told Vince that he was there to talk about his partnership interest, after which Vince told Jack to leave in emphatic terms (Jack xn 317).

339 According to Jack he then 'snapped'. He turned to Mr Levin and asserted that after taking out the Catalanos' share, Jack owned a third of everything in the company, including the chair upon which Mr Levin was sitting. He then started to break things, including the granite boardroom table, chairs, windows, the front door, picture frames and so on (Jack xn 317).

340 In his evidence-in-chief, Jack made no reference to his father denying his claim to an interest in the partnership. He maintained that position in cross-examination and denied that, by Vince's conduct he had made it clear that he did not consider Jack to be a member of the partnership (ts 417). That evidence is patently implausible. Unless Jack understood, from Vince's words and/or conduct, that Vince was denying Jack's claimed entitlement to an interest in the partnership, Jack had no reason to react as violently as he did, or to go on the rampage of destruction, claiming as he did (according to Jack) that one-third of everything he was breaking (after deducting the Catalanos' interest) was his. That sequence of events is only explicable by reference to Jack's understanding that his claimed entitlement to a partnership interest was disputed by Vince. I reject his evidence to the contrary.

341 Jack gave evidence to the effect that shortly after this incident, Mr Levin telephoned him to advise that Vince was looking at his will, and wanted to leave everything equally to his three children (Jack xn 319). Mr Levin denies any conversation to that effect (R Levin xn 511). Although I harbour reservations about Mr Levin's credibility generally, Jack's assertion of a conversation to this effect is inherently implausible. The fact is that shortly after the altercation at the office, Mr Levin assisted Vince to obtain a restraining order against Jack. In that context, it seems extremely improbable that Vince would have instructed Mr Levin to advise Jack that he was making a will in which his children would be treated equally. I reject Jack's evidence to that effect. Having rejected that evidence, I am left with no plausible justification for Jack's failure to commence these proceedings prior to his father's death.

342 Jack asserted in evidence that in 1988 both his parents had wills prepared by Frichot & Frichot, and that he was shown the wills by his father in which everything was left equally to him, Rudy and Sarina (Jack xn 318). There is no other evidence to this effect. The evidence of Mr Zorotovic was that Frichot & Frichot have no record in the file catalogue maintained by that firm of any file relating to the preparation of wills for Vince or Guiseppina (A Zorotovic xn 11). If wills had been prepared by the firm as Jack asserts, one would expect there to be a file opened to that effect. As Jack's evidence on this topic is entirely uncorroborated and inconsistent with the records maintained by Frichot & Frichot, I do not accept it.

343 Vince and Guiseppina made mutual wills, each dated 18 September 2006 (tb 35A/18101 and tb 34/16476). They are complex documents. It is unnecessary to recount their terms in full. A number of bequests are made to testamentary trusts which correspond to various family members, including Rudy, Sarina, Jack and Jack's three sons. The testamentary trust representing Jack's son, Vince junior, is given the house occupied by Vince and Guiseppina at 35 Barrett Street, Spearwood, subject to Guiseppina's right of occupancy for her life. Testamentary trusts representing Jack's other two sons are given bequests of $800,000 each. Jack is given $1,000,000, and the wills contain recitals to the effect that assets were given to Jack during his lifetime including the South Terrace property, the block of land in Barrett Street, Spearwood, and approximately $50,000 for the purchase of imported light fittings to be sold in Jack's business.

344 Various provisions are contained in a schedule to the will relating to the testamentary trusts. Specific provisions are made whereby the appointors of those trusts are to be nominated family members, plus a person described by the will as 'the independent person'. Although a bequest over and above the $1,000,000 to which I have referred is made in favour of the G (Jack) Fazio Testamentary Trust, the appointors of that trust are Rudy, Sarina and the independent person. Although there might be arguments as to the precise extent of the legal obligations of the appointors and trustees of that trust, Jack asserts, with good cause, that given the state of the relationship between him and Rudy and Sarina, it is unlikely, in practical terms, that he would receive any benefit from that trust.

345 So, at a level of great generality, and therefore some inaccuracy, under the wills, Jack receives $1,000,000, and provision is made by-passing Jack and Maria and conferring benefits directly upon their three sons.

Correspondence and notices following Vince's death in 2007

346 On 28 February 2008, Jack purported to serve notice upon each of Guiseppina and the estate of his late father pursuant to cl 13 of the partnership document prepared in 1968, notifying each that by reason of their breach in transferring part of their interest in the partnership to Rudy, without Jack's consent, they were deemed to have retired from the partnership on the date of receipt of that notice. Further, on 6 March 2008, Jack purported to serve notice upon each of Guiseppina and the estate of the late Vince, purporting to exercise the option conferred by cl 14 of the 1968 document to acquire their interests in the partnership (tb 37/17898 and 37/17900). As I have concluded that the 1968 document did not govern the partnership either at the time of its dissolution upon Vince's death, or thereafter, it follows that these notices were of no effect. Further, and in any event, on any view, the notices served on 28 February 2008 were well outside (by some decades) the period of one month after Jack became aware of the alleged breach, being the period specified by cl 13 of the 1968 document as the period within which such notices must be served. The plaintiffs' case on this issue also faces an insuperable conundrum, because Jack was only entitled to serve the notices if he was a partner at the relevant times, and did not consent to Rudy's admission to the partnership. But if he was a partner and did not consent to Rudy's admission, Rudy's purported admission would have been ineffective, as would his parents' attempts to transfer a share of their partnership interest, with the consequence that they would not have been in breach of the covenant contained in the 1968 document.

Transfer of the business to Roadstone Quarries Pty Ltd and Italia Stone Group Pty Ltd

347 This broadly chronological narrative of my findings of fact can be completed by the findings that I make in respect of the transfer of the business conducted by Italia Limestone to Roadstone, and then from Roadstone to Italia Stone. Roadstone was incorporated on 19 August 1999 (tb 28/13163). Vince was appointed a director of the company on 12 October 1999. Rudy and Sam Catalano were both appointed directors on 12 February 2001. Documents prepared in the latter part of 1999 suggest that it was agreed that Italia Limestone would sell its business to Roadstone for a price of $8.4 million (tb 28/13212 and tb 27/12914.1). Draft agreements for the sale of the business, and draft shareholders' agreements were prepared in October 1999 (tb 28/13207). Additional shares in Roadstone were issued on 12 October 1999 (tb 28/13283). Following that issue, a total of 99 shares had been issued. One was held by each of Vince, Guiseppina and Sam, 32 by Dangan, 42 by Anham, and 22 by Blueland (a company controlled by Rudy) (tb 28/13166 and tb 28/13283). Accordingly, it can be seen that the shares in Roadstone were held as to one-third by Sam Catalano and a company controlled by the Catalanos (Dangan), and as to two-thirds by Vince and companies controlled by members of his family. Within the parcel of shares held by the Fazio interests, one-third was held by a company controlled by Rudy, and two-thirds were under the control of Vince and Guiseppina. Thus, the shareholding structure mirrored the interests in the partnership.

348 The evidence does not establish with clarity whether Roadstone acquired the partnership business, as suggested by the draft agreements to which I have referred, or had some other relationship with the partnership. For example, a letter from Francis A Jones & Associates of 27 October 2000 refers to Roadstone having been appointed as manager of the operations of Italia Limestone with effect from 1 January 2000, to undertake all contracts and manage the affairs of Italia Limestone (tb 29/13805). The evidence suggests that Roadstone was incorporated to take over the conduct of the partnership business so that a share in a corporate entity conducting the business could be given to a Mr Ferrara who was hired as the general manager of the business, if he performed as hoped, although there is other evidence which suggests that Roadstone was introduced to thwart any claim by Mr Ferrara. In the result, Mr Ferrara left the business without being given any share in it, and it is unnecessary to resolve the tension in the evidence on this topic.

349 At all events, it seems clear that the trading activities previously undertaken by Italia Limestone were, from around the year 2000, thereafter undertaken by Roadstone. No change was made to the proprietorship of the real estate assets used for the purposes of those trading activities, as the assets had never been held by the partnership in any event, but by corporate entities (such as Danehill) in which the partners had an interest equivalent to their interest in the partnership.

350 There is no suggestion in the evidence that this transfer of trading activities from the partnership to Roadstone was undertaken for the purpose of defeating any claim by Jack. At the time the structure of Roadstone was set up in the latter part of 1999, Jack had not foreshadowed any such claim.

351 However, the position was different by 2006. Jack had clearly enunciated his claim to an interest in the partnership, initially by his letter of December 2003 to Francis A Jones & Associates, and later in the course of the altercation at the Italia office. A file note prepared by solicitors acting on behalf of Vince records instructions from Mr Levin to the effect that it was proposed to transfer all the trading activities from Roadstone to Italia Stone with effect from 1 January 2007 (tb 34/16440). The file note records that Mr Levin drew attention to the possibility that Jack may claim an interest in Italia Limestone. This transfer occurred, with effect from 1 January 2007 (tb 34/16592).

352 In his evidence-in-chief, Mr Levin asserted that the reason for the transfer of the business from Roadstone to Italia Stone was 'to create a new image' because a reputation was being built in dimension stone and the construction of limestone walls, and the name 'Roadstone' was inconsistent with the image being projected (R Levin xn 516). The proposition that the transfer of the business from one company to another was necessary to effect this change is inherently implausible because, of course, it would have been a simple matter to change the name of Roadstone. When this obvious proposition was put to Mr Levin in cross-examination, he steadfastly maintained his position that the transfer of the business from one company to another was undertaken in order to achieve a change in the name of the business (ts 805). Given the inherent implausibility of that assertion, and my general reservations about Mr Levin's credibility, I do not accept that evidence. The solicitor's file note to which I have referred suggests, and I find, that the purpose of assigning the business activities from Roadstone to Italia Stone was to attempt to make it harder for Jack to maintain a claim to an interest in the business.

353 The plaintiffs assert that Jack never consented to Rudy's admission to the partnership, with the consequence that he was never validly admitted. As I have already noted, this assertion is somewhat inconsistent with the assertion that Vince and Guiseppina each breached a term of the 1968 partnership agreement by transferring a portion of their interest in the partnership to Rudy. However, for the reasons which follow, the evidence establishes, and I find, that Rudy was admitted to the partnership with Jack's consent, at some time prior to Jack's departure from the partnership.

354 As I have noted above, records maintained pursuant to the provisions of the Business Names Act 1962 (WA) record the lodgment of a document asserting that 'Randolfo [sic: Ridolfo] Fazio' commenced carrying on business under the name Italia Limestone Co, with effect from 25 June 1979, together with the other registered proprietors of that business name. Mr Lucev, who worked at the government department administering the registration of business names between 1968 and 1980 gave evidence that if a form was lodged giving notice of an additional proprietor carrying on business under a registered name, the usual practice would be to check the form to ensure that all continuing proprietors of the name had signed it. If the form was not signed by all proprietors, it would not be accepted (J Lucev xn 42). There is no reason to suppose that this procedure was not followed when the notice advising of Rudy's addition to the proprietors of the name was lodged. Of course, this does not establish that the form was signed by Jack. It is theoretically possible that someone could have forged his signature. However, this seems to me to be most unlikely, as there would have been no reason for anybody to take that course in 1979, when there was no dispute within the family. Accordingly, I conclude that it is more likely than not, and I find, that Jack signed the notice which was lodged notifying that Rudy had become a proprietor of Italia Limestone.

355 Jack's evidence-in-chief was that he never agreed with his father, or any of the other partners, to admit Rudy into the partnership. He asserted that the first time anyone ever said to him that Rudy was a partner was when Rudy asserted that in 2003 (Jack xn 351). With reference to deeds signed in June 1992 and July 1983 by each of him and Rudy (and other partners) (tb 2/600 and tb 2/818), Jack acknowledged that the signatures beside his name appear to be his, but asserted that:

These are likely to be documents that were shoved in front of me by my father or his personal assistant, Colleen, with the order 'sign here, Jack' and I would sign without reading. Over the years I signed very many documents which my dad, or Colleen on his behalf, demanded I sign but very often without me being given any opportunity to even notice what was on the document. (Jack xn 352)

356 With reference to a set of the financial statements for the partnership for the year ended 30 June 1983, which show Rudy as a partner allocated profit, and which were discovered by the plaintiffs in these proceedings, Jack and Maria each asserted that these documents were not received until about the year 2000, and were not read by them until after Vince's death in 2007 (exhibit B, Jack xn 320, Maria xn 122). They maintain that in about 2000, they received a telephone call from Frichot & Frichot, to call and collect some documents. They assert that Maria collected the documents and put them into storage without looking at them. They maintain that it was only after Vince's death, when these proceedings were in contemplation, that they undertook an exhaustive review of all their documents and ascertained, for the first time, that they had a set of the financial statements for the partnership for the year ending June 1983 showing Rudy as a partner. I will give more detailed consideration to these assertions below.

357 In cross-examination, Jack accepted that when he was admitted as a partner, in 1968, it was his father's decision 'as the head of the family' (ts 393). However, somewhat inconsistently, he initially denied an understanding that it was up to his father to decide whether the family's interest in the partnership should be further divided so as to admit another family member. However, that assertion is itself inconsistent with the following passage of cross-examination:

But you knew that the understanding between you was that if he wanted to treat your brother and sister in the same way, they would be treated in the same way?---And that is correct.

So that the family's two-third share would be shared amongst the family according to his decision?---And I had no problem with that, as my father always says, everybody is equal; a third, a third, a third and therefore whether it's the partnership, all the assets of the family get treated a third, a third, a third.

So you understood that when Rudy grew up and if he came back to Perth and your father thought it was appropriate for him to come into the partnership, your father would say, 'Rudy's going to be a member. We're going to share our two-thirds with him'?---If that's what we were going to discuss, I would have no objection but provided that everything is shared a third, a third, a third as he has always said.

I will put to you that if Rudy was going to be admitted, if your father decided to admit Rudy, you would have gone along with the decision?---If he had asked me, I would, but I've never been asked and all I know is that he always said that everything is a third, a third, a third.

You know that at some time in the 1980s your father did want to admit Rudy into the partnership?---No, that's never been brought to my attention.

In 1979 or the 1980s sometime?---It has never been brought to my attention. We've never sat down. Unfortunately, my father never had any meetings. We have never sat down to have a meeting to discuss any such event. (ts 393 - 394)

358 Jack was cross-examined in relation to the deed dated July 1983 which he and Rudy each signed in their capacity as partners in the partnership (tb 2/818).

Right. So in 1983 you knew that Rudy was a partner, didn't you?---Well, as I said, I could have signed this without digesting it - - -

And equally you could have signed it with digesting it?---That is true too.

Right. Are you telling us you don't recall which is true?---I don't recall which is true but what I'm saying is there's never been a formal sit down of the partners to discuss that Rudy's a partner. Now - - -

So you're not denying that your father included him?---I don't object to Rudolf being a partner. I don't object. I've never said he shouldn't be a partner. What this is about is that they are saying I'm not a partner or I'm out or finished. That's the issue.

Let me understand it. You're not denying that your father included Rudy as a partner in the partnership at some time prior to 1983?---I don't know that he did that - - -

Well you can see here you've signed a document?---I have signed it but as I said, once again, I have signed it probably not digesting the document or going in depth and saying 'Oh well Rudy's a partner too' because sometimes you sign documents on the spur of the moment.

359 It can thus be seen that Jack's evidence on the subject of Rudy's admission to the partnership is equivocal. Further, in the first passage I have set out above, Jack conflates the question of Rudy's admission to the partnership with the proposition that each of the three children were to be treated equally. Those two issues are quite separate and distinct. Although there are one or two anomalous documents which might suggest otherwise, it is common ground that Sarina has never been a member of the partnership, nor did Jack suggest at any point in his evidence that he ever understood she had been admitted to the partnership. It follows that he must have been aware at all times that there was a significant distinction between membership of the partnership, with all its attendant obligations, including tax obligations arising from profit distributions, and the quite different proposition that Vince's three children would be treated equally. However, in the passage of cross-examination which I have set out above, Jack appears to conflate and confuse those two issues.

360 Rudy's evidence was that he recalled his admission to the partnership being discussed over a family meal in 1979 at which his parents, Jack, Maria and Sarina were present (Rudy xn 224 - 226). He understood that all partners, including Jack, had consented to his admission to the partnership. So far as he is aware, prior to Jack threatening to commence these proceedings, no partner had ever asserted that he was not validly admitted as a partner. It seems clear that, as Rudy asserts in his evidence, Jack never asserted that Rudy was not validly admitted as a partner until some time after Vince's death in 2007. That is notwithstanding Jack's evidence to the effect that the dispute over the Sunday dinner in 1994, and the baptism altercation in 2002 came about because of his dissatisfaction with his father's disparate treatment of Rudy, who was receiving partnership profits when Jack was not. Jack's inordinate delay in contesting Rudy's admission to the partnership casts considerable doubt upon his assertion that he did not acquiesce in Rudy's admission.

361 In 2007, Rudy signed a statement of the evidence-in-chief which he was to give in the proceedings relating to the Mandurah land (tb 34/16711). In par 5 of the statement, he asserted that he had been a partner in Italia Limestone 'since 1988'. In cross-examination he stated that this was a reference to his commencement of active involvement in the affairs of the partnership, rather than to the legalities of the situation (ts 672). I accept that explanation. Whether, and if so when, Rudy became a partner in Italia Limestone was not an issue in the proceedings relating to the Mandurah land, and it is likely that a broad brush approach was taken to such matters in the preparation of the witness statements.

362 The plaintiffs rely upon a number of documents which contain references to partners which do not correspond to the defendants' case as to the composition of the partnership from time to time. In a majority of cases, the lack of correspondence arises from the failure to refer to some partners, and in other cases, from the inclusion of a reference to a person whom the defendants assert was not a partner - in a few cases, Jack. Of course, each partner has the authority to act on behalf of, and bind, the other partners and the partnership within the scope of their actual or apparent authority: Partnership Act 1895 (WA), s 13. It follows that much less significance is properly attached to the apparent omission of a partner from a document, than to the apparent erroneous inclusion of a person who is not a partner. So, for example, it is clear that the partnership business was largely conducted by the male partners. In that context, the omission of a reference to Guiseppina and Mrs Catalano in a document is quite understandable and would have no impact upon the legal efficacy or enforceability of any agreement entered into by Vince and/or Sam Catalano on behalf of the partnership. On the other hand, the inclusion of a reference to a person as a partner within a document has greater forensic significance, as it is only consistent with a belief on the part of those who prepared or were provided with the document to the effect that the relevant person was a partner.

363 As this portion of my reasons is concerned only with the question of whether Rudy was admitted to the partnership with Jack's acquiescence, I will now address only those documents which bear upon that issue. I will address those documents in which reference is made to Jack in a partnership context after mid-1984 in the next portion of my reasons.

364 The financial statements for Italia Limestone for the year ended 30 June 1979 (tb e1/19395) make no reference to Rudy, notwithstanding that the other proprietors of the partnership, including Jack, and their partnership accounts, are set out. Further, an agreement dated 17 August 1979 (tb 1A/299) between Concettina Faranda and the partnership specifically refers to all partners, including Jack, but makes no reference to Rudy. Similarly, a draft unexecuted deed apparently prepared in 1981 between members of the partnership and other members of the Faranda family specifically refers to all members of the partnership, but makes no reference to Rudy (tb 1A/384).

365 Further, documentation prepared by the Commercial Bank of Australia Ltd in 1981 with respect to the provision of finance for the partnership refers to a continuing guarantee by the partners, referring to all partners other than Rudy (tb 1A/466.108). Similarly, a letter from Australian Guarantee Corporation Ltd to the partnership dated 27 August 1981 is addressed to all the individuals who were then partners, but makes no reference to Rudy (tb 1A/466.125).

366 Also in evidence is an agreement which is not specifically dated, but which bears the year 1981, and which appears to have been stamped on 28 April 1982, between Ms Faranda and Mr John Tarca, and the partnership, which names, and is executed by, all the partners but not Rudy (tb 2/542). There is another agreement, apparently executed at the same time, between Mr Jim Faranda and Mr Albert Faranda and the partners, which also specifically refers to, and is executed by, all the partners but which makes no reference to Rudy (tb 2/549).

367 Further, the financial statements for the partnership for the years ended 30 June 1980 and 30 June 1981 make no reference to Rudy, notwithstanding that they set out the capital accounts of each of the partners (tb e1/19408 and 19415).

368 The first documentary reference to Rudy as a partner, other than in the notice lodged under the Business Names Act in 1979 is the partnership tax return for the year ended 30 June 1980 (tb e2/19745). That document allocates the partnership profits equally amongst all six partners, including Randolfo [sic: Ridolfo] Fazio. Of course, once there became six partners, equal allocation of profits amongst all six happened to correspond to the long-standing agreement for the allocation of two-thirds of profits to the Fazio family members, and one-third of the profits to the Catalano family members.

369 The financial statements for the partnership prepared for the period to end 31 March 1982, show Rudy as a partner with a capital account to whom a share of profit is allocated (tb e1/19422). A similar reference to Rudy is contained in the financial statements for the partnership for the period ending 30 June 1982 (tb e1/19429).

370 As I have mentioned, there is a deed dated June 1982 made by the partners on behalf of the partnership, which each of Jack and Rudy (and the other partners, except, curiously, Sam Catalano) have signed (tb 2/600). The deed is a deed of guarantee, in which guarantees are provided by Mr and Mrs Di Costa, in respect of a debt owed to the partnership by Di Costa Developments Pty Ltd. Jack signed the last page of the document immediately above the place indicated for Rudy's signature where Rudy has signed. It seems improbable that Jack would have failed to notice the reference to Rudy at the time of signing the document if it was his belief that Rudy was not a partner. As I have noted, Jack's evidence on the question of whether he did in fact notice the reference to Rudy in the document at the time he signed it is equivocal.

371 I have also referred to a similar document executed in July 1983 (tb 2/818). This is a deed between Cockburn Cement Ltd, and all the partners of Italia Limestone including Jack and Rudy. It is executed by each of the partners, and once again, Jack signed the document immediately above the place on the document indicated for Rudy's signature, where Rudy signed. Again, it seems most improbable that Jack would have signed the document without noticing the reference to Rudy, if in truth he believed that Rudy was not a partner at the time.

372 The financial statements prepared for Italia Limestone for the year ended 30 June 1983 clearly show Rudy as a partner with a capital account to whom a share of profit was allocated (tb 2/686). As I have mentioned, an original version of these statements was discovered by the plaintiffs, and became part of exhibit B. Other documents forming part of that exhibit and discovered by the plaintiffs include an income tax adjustment sheet apparently prepared by the Australian Tax Office relating to Jack, and letters from Francis A Jones & Associates to Jack dated December 1983 and January 1984 concerning his taxation liabilities for the ended June 1983. Also included within that exhibit is a print of the general ledger of Italia Limestone apparently printed out on 30 November 1984. This is the print of the general ledger to which I have referred above in the context of the taxation dispute which arose in respect of the year ended 30 June 1984, and which bears manuscript ticks against the entries comprising the total of $10,000 drawn by Jack during that financial year. The ledger also contains a reference to drawings made by Rudy in April 1984.

373 As I have mentioned, Jack and Maria assert that at least some of exhibit B, being the financial statements for the year ended June 1983, were not received by them until 2000, when they were collected from Frichot & Frichot. The provenance of the other documents within exhibit B, including the correspondence from Francis A Jones & Associates, and the general ledger, is not clear from the evidence.

374 Mr Ante Zorotovic, a partner in Frichot & Frichot, was called by the defendants. His evidence was that the firm maintains records of documents collected by clients. According to the records maintained by the firm, only three files were delivered to either Jack or Maria (A Zorotovic xn 12). They were provided in 1997, and from the description of the files in the records maintained by the firm, appear to relate to specific transactions, and have no relationship to the partnership accounts prepared for the year ended June 1983.

375 There is no reason to doubt that the procedures maintained by the firm in respect of the collection of files and other documents by clients were regularly maintained through the period when Jack and Maria assert that they collected the documents, but there is no record of their collection in 2000. Further, the evidence of Jack and Maria does not suggest any reason why Frichot & Frichot would have received or retained financial statements for the partnership for the year ended June 1983. In submissions it was suggested that as one of the files recorded as collected by the firm related to the Mandurah land syndicate, the accounts might have been provided to Frichot & Frichot in connection with an application for finance for that acquisition. However, this is sheer speculation. There is no evidence that Frichot & Frichot were engaged in seeking finance. To the contrary, the evidence is that this task was undertaken by Francis A Jones & Associates. In any case, it seems most unlikely that the firm would have returned those statements to Jack and Maria unless they were provided by Jack and Maria in the first place. For these various reasons, I do not accept the evidence by Jack and Maria as to the provenance of the financial statements. When regard is had to the character of the documents, and the other documents discovered by the plaintiffs, it seems to me to be much more likely that they were received by Jack at or about the dates which they bear, which vary between 1983, and some time after November 1984.

376 The documents establish that Jack's income tax return for the year ended June 1983 included partnership profits, and the notice from the Australian Taxation Office showing an adjustment in taxable return refers to an amendment as a result of a variation in the distribution from the partnership. In that context, it seems likely that Jack would have been provided with the financial statements relating to the partnership (which include reference to Rudy), because of their obvious relevance to his personal taxation liability.

377 Further, as I have mentioned, the general ledger apparently printed on or about 30 November 1984 contains manuscript annotations relevant to the taxation dispute between Jack and his father which surfaced around this time. Those annotations are only consistent with the document having been considered, and marked up, in that context, which would suggest that it must have been received by Jack at some point in either late 1984 or early 1985. Again, as I have mentioned, the ledger shows drawings made by Rudy, in that portion of the ledger where partners' drawings are recorded.

378 Accordingly, I conclude that Jack received the various documents to which I have referred, and which clearly show Rudy as a partner, on or about the dates which they bear. The evidence given by Jack and Maria as to the provenance of some of those documents in 2000 was given in an attempt to avoid the obvious forensic significance of their discovery of those documents in the course of these proceedings.

379 As I have mentioned, the acquisition of the Mandurah land was financed in part by funds advanced by Perpetual Trustees WA Ltd against the security of a mortgage over the Mandurah land executed on 20 June 1984. That mortgage provides that the partners of Italia Limestone are to be an additional covenantor in respect of the borrowing, and names the six partners, including Jack and Rudy (tb 3/1099). Each have signed. On this occasion, the place for Jack's signature is on a different page to that for Rudy's signature, although given the significance of Jack's involvement in the Mandurah land, again it seems to me to be improbable that he would not have noticed that Rudy was providing a guarantee of the borrowing, in his capacity as a partner of Italia Limestone.

380 Having regard to the documentary evidence, and the findings which I have made based upon that evidence, I find that Rudy was admitted as a member of the partnership, by Vince's decision, some time between 1979 and 1982. Rudy was admitted on the basis that he would take an equal portion of the Fazio family share in the partnership, so that each of the four Fazio members of the partnership held a one-sixth interest. Given that Rudy was not actively involved in the partnership business or its affairs at this time, it seems likely that the motivation for his admission into the partnership may have been, at least in part, the reduction of taxation liability by spreading income amongst the various Fazio family members.

381 Further, it is a clear inference from the documents to which I have referred, and I find, that each of the other partners, including Jack, acquiesced and consented to the admission of Rudy into the partnership on the basis I have described.

382 The financial statements for the partnership for the year ended 30 June 1984 show Rudy as a partner with a capital account, to whom profit was allocated during that year (tb e1/19442), as do the partnership accounts for the periods ending 31 March 1985 (tb e1/19448) and 30 June 1985 (tb e1/19454), and the partnership accounts for all years thereafter.

383 There are other documents relating to the partnership around this time which omit reference to Rudy. There are two agreements for the acquisition of land at Nowergup, each dated 27 October 1983, in which the purchasers are shown as Vince, Guiseppina and the Catalanos (tb 2/839 and tb 2/847). Although Rudy is omitted, it is to be noted that Jack is also omitted. This appears consistent with a clearly established pattern whereby capital assets were kept separate and distinct from the partnership, which carried on the business, but did not hold land. Accordingly, I would not attach great significance to the omission of Rudy from these transactions.

384 There is also in evidence a licence agreement dated 1 October 1985 between the purchasers of the Mandurah land and Danehill, whereby Danehill is granted the right to enter and remove limestone from that land (tb 3/1722). The obligations of Danehill are guaranteed by Vince, Guiseppina, and the Catalanos. They are not guaranteed by Rudy (or for that matter, Jack). However, the agreement recites that the guarantee is given by the directors of Danehill, who are the four guarantors. Neither Jack nor Rudy was ever a director of Danehill, nor did either hold shares in that company. The omission of Rudy as a guarantor is therefore quite explicable, and is in any event consistent with the practice to which I have referred, of separating capital assets (such as, in this case, the right to quarry limestone) and the conduct of day-to-day business by the partnership.

385 Another deed was executed by the purchasers of the Mandurah land on or about 1 October 1985 (tb 4/1742). That deed recorded the arrangements which had been made amongst the various purchasers for the purchase of the land and the payment of the purchase price. Danehill's obligations under the deed are guaranteed by each of Vince, Guiseppina, and the Catalanos. The same observations can be made with respect to the omission of Rudy from that guarantee as I have made in relation to the licence agreement of the same date.

386 Also in evidence is a credit application made on behalf of the partnership to Ingersoll-Rand Australia Ltd (tb 3/1594). It is undated. It identifies the partners as Vince, Guiseppina and the Catalanos. It makes no reference to Rudy (or for that matter, Jack). However, as the borrowing was undertaken by the partnership, any debt arising from the borrowing would have been a partnership debt, for which Rudy would have been responsible. Accordingly, as I have already noted, the omission of a name from a document such as this does not carry the same forensic significance as the inclusion of a reference to a putative partner. There are other documents of a similar character in which reference is made to Rudy - see, for example, the letter from CBFC Ltd (a financier) to the proprietors of Italia Limestone dated 23 September 1985 (tb 4/1714).

387 Also in evidence is a licence agreement between Vince, Guiseppina, the Catalanos and Lime Nominees Pty Ltd whereby Lime is granted a licence to enter and remove limestone capping from one of the Nowergup lots (tb 4/1994). The document is not dated, but bears, in typescript, a reference to 1986. Rudy's omission from this document is entirely explicable by the fact that he was not a proprietor of the Nowergup land and was not therefore appropriately included as a licensor.

388 The plaintiffs also rely upon statements of account issued by CBFC Ltd to Italia Limestone which list, under the header referring to the partnership to 'G Fazio, G Fazio and V Fazio' (see for example: tb 5/2125 and tb 5/2193). They rely upon the apparent omission to refer to 'R Fazio'. However, given the letter dated 23 September 1985 from CBFC Ltd, to which I have already referred, which makes specific reference to 'R Fazio', it seems likely that the denotation of the accounts simply reflects a failure to amend the various documents maintained by the credit provider following notification of a change in the composition of the partnership. I would not attach great significance to documents of this character.

389 The plaintiffs also rely upon a letter from Francis A Jones & Associates to the Perth Building Society dated 23 October 1986 applying for funding to refinance the development project located at 16 South Terrace, Fremantle (the Casablanca property) (tb 5/2436). The text of the letter asserts that Vince 'and his wife own 66.6% of Italia Limestone Co'. No reference is made to Rudy. Given that Francis A Jones & Associates were, at this time, preparing financial statements for the partnership which clearly showed that Rudy was a proprietor, this can only have been an oversight by the author of the letter. I would not attach great significance to that oversight.

390 The plaintiffs also rely upon correspondence between the partnership and Clark Credit in October 1986, in which Vince and Sam Catalano are referred to as the partners (tb 5/2441). However, as the documents make no reference to either Guiseppina or Mrs Catalano, it is clear that they are not intended to be an exhaustive statement of the members of the partnership. Accordingly, I would not attach any significance to Rudy's omission from these documents.

391 Also in evidence is an agreement dated 12 March 1997 between Vince, Guiseppina, and the Catalanos of the one part, and Lime Nominees Pty Ltd of the other part, relating to the construction of a crushing plant on the Nowergup property (tb 6/2874). As with the other documents relating to that property, the omission of Rudy is explained by the fact that he was not a proprietor of the land. That fact sheds no light on the question of whether or not he was a member of the partnership, given the practice of separating the ownership of capital assets from the conduct of the business.

392 The plaintiffs also rely upon letters prepared by Francis A Jones & Associates in May 1987, seeking the provision of finance to Vince and Guiseppina (tb 6/3018 and tb 6/3020). Each of the documents asserts that Vince and Guiseppina hold two-thirds of Italia Limestone. As with the earlier document of a similar character, given that Francis A Jones & Associates were at this time preparing partnership accounts which clearly showed Rudy as a proprietor, the terms of this correspondence can only have been an oversight by its author, to which I would attach no significance.

393 Also in evidence is a letter from CBFC Ltd to Italia Limestone dated 26 August 1987, referring to a variation to a loan agreement entered into on 23 August 1984 (tb 6/3386). The letter proposes acknowledgement of the proposed variation by four signatories, being Vince, Guiseppina and the Catalanos. Again, given the earlier correspondence from this lender showing its awareness of Rudy as a partner, this appears to be an oversight.

394 The plaintiffs also rely upon applications for trade credit made to Amcep Parts and Skipper Trucks Belmont in the names of Vince and Sam Catalano trading as Italia Limestone (tb 7/3543 and 7/3544). However, it is clear that these documents do not purport to fully record the names of all the partners, as Guiseppina and Mrs Catalano are omitted. Accordingly, I would not attach any significance to the failure to refer to Rudy in these documents.

395 The plaintiffs also rely upon statements of assets and liabilities as at 30 June 1988 prepared for each of Vince and Guiseppina, and the Catalanos (tb 7A/4014). It is clear from the statements that the value of Italia Limestone has been allocated as to two-thirds to Vince and Guiseppina, and as to one-third to the Catalanos, obviously leaving no allocation to Rudy. The evidence does not establish who prepared these documents. However, they do not accord with the financial statements relating to the partnership, which consistently show Rudy as a partner at all times after, and including, 1982. Again, it seems likely that a somewhat loose approach has been taken to the allocation of partnership interests, perhaps in the context of a credit application, and at a time when Rudy was playing no active part in the affairs of the partnership.

396 The plaintiffs also rely on a letter from Westpac Banking Corporation of 7 December 1988 confirming its approval to provide finance to Danehill to acquire the interest in Lime Industries (through its 90% interest in Radroc) (tb 8/4323). The letter provides that unlimited guarantees are to be given by Vince, Guiseppina, and the Catalanos. I would attach no significance to the failure to refer to Rudy in this context, as Rudy had no direct interest in Danehill at this time.

397 The plaintiffs also rely upon statements of assets and liabilities prepared for Vince and Guiseppina as at 30 June 1989, and for the Catalanos as at the same date (tb 9/4957.1 and tb 9/4957.2). As with the earlier versions of these documents, the interest in the partnership has been allocated as to two-thirds to Vince and Guiseppina, and as to one-third to the Catalanos. I would make the same observations as I made in relation to the earlier versions of these documents.

398 The plaintiffs also rely upon an undated application for credit to Boral Ltd made by Vince and Sam Catalano trading as Italia Limestone Co (tb 10/5303). As with other documents of this kind, plainly the document does not purport to fully list all members of the partnership, and I draw no inference from Rudy's omission.

399 The plaintiffs also rely upon a licence agreement dated 22 March 1991 between the proprietors of the Mandurah land and Danehill, in which Danehill's obligations are guaranteed by each of Vince, Guiseppina and the Catalanos (tb 11/6113.1). The agreement relates to Danehill's quarrying of limestone on the Mandurah land. I make the same observations in relation to Rudy's omission from this document as I made in relation to earlier documents of a similar character. As Rudy was not a director of Danehill, no inference concerning his membership of the partnership is properly drawn from his omission from those documents.

400 The plaintiffs also rely upon a deed dated 22 March 1991 executed by the various proprietors of the Mandurah land, in which Danehill's obligations are guaranteed by Vince, Guiseppina, and the Catalanos (tb 12/6114). Again, for the reasons I have already given, I would draw no inference from the failure to require a guarantee from Rudy, who was not a director of Danehill and who had no direct interest in the company or the trust of which it is trustee.

401 The plaintiffs also point to a letter from Westpac to Italia Limestone dated 24 April 1991, relating to finance provided by that bank, which refers only to Mr and Mrs Fazio and Mr and Mrs Catalano (tb 12/6171). As with the other correspondence from providers of finance, it seems clear that at least up until this time, Vince, Guiseppina and the Catalanos were regarded as the principal participants by creditors. Given Rudy's limited role up to this point, that is understandable. However, correspondence of this kind falls short of establishing that Rudy was not in fact a partner.

402 The financial statements prepared for and on behalf of the partnership have been tendered in evidence. They show that Rudy has been listed as a partner, with a capital account and an allocation of profit in respect of each financial year since the year ended 30 June 1982, up to and including 2007. While it is clear from the other documents to which I have referred, that there have from time to time been documents prepared which omit reference to Rudy when a reference might have been expected, none of those omissions is of sufficient significance to displace the conclusion to be drawn from the documents as a whole. Further, because of the findings I have made in respect of the documents seen and, in some cases, signed by Jack prior to there being any question of his departure from the partnership, I have found that Jack consented to Rudy's admission to the partnership. Accordingly, I find that Rudy was a member of the partnership from some time between 1979 and 1982, until the dissolution of the partnership occasioned by the death of Vince in 2007.

Did Jack retire from the partnership by mutual agreement in 1984?

403 The defendants rely upon the form apparently signed by Jack and dated 22 June 1984 registered under the Business Names Act, giving notice to the effect that Jack ceased to be a proprietor of the business name 'Italia Limestone Co' with effect from 1 July 1984. Jack denies signing the form.

404 However, the evidence on that issue is properly evaluated in the context of all the other evidence relating to the question of whether or not there was an agreement whereby Jack retired from the partnership as and from that date.

405 I will recap briefly on some of the topics which I have already addressed in more detail. I have found that the South Street property was unconditionally promised to Jack and Maria by Vince at the time they married, and was committed by Jack and Maria in exchange for their interest in the Mandurah land transaction before any question of Jack's resignation from the partnership arose. I have also found, however, that Vince did not promise to give the block in Barrett Street to Jack and Maria in 1982, nor did he promise to build them a house to a value of $120,000 at no cost to them. To the contrary, I have found that any agreement in relation to the transfer of the Barrett Street block to Jack and Maria did not occur until 1984. I have also found that while Jack was involved in a number of real estate transactions undertaken by his father, his involvement in significant transactions concerning the partnership was more limited than he asserts. Rather, prior to 1984, his efforts on behalf of the partnership had centred around his labouring activities, which were, nevertheless, significant. However, by 1984, he had become dissatisfied with his role as a labourer, and the remuneration it provided. By mid-1984, he had studied for, and received a qualification to act as a real estate salesman.

406 I have found that Jack was aware that he was receiving a distribution of profits earned by the partnership, on which he incurred a taxation liability in the years prior to 1984. That became a contentious issue in respect of the income year ended 30 June 1984. Jack accepted in cross-examination that after he ceased working full-time in the limestone business in October 1984, he received no further income, either by way of wages or profit distribution from the partnership (ts 257).

407 Jack also accepted that prior to October 1984, there were many occasions upon which he was asked to sign documents which he understood were partnership documents (ts 258). He accepted that after October 1984, he was never again asked to sign any documents relating to the partnership (ts 259). He also accepted that in the many statements of his assets and liabilities which he prepared after October 1984, he made no reference to any interest in the partnership or to any liabilities arising from such an interest (Jack xn 358-9 and ts 399). He also accepted that he never asked for partnership accounts after 1984 (except on the two occasions when his requests for documents were rejected by Francis A Jones & Associates (in early 1985 and late 2003), and never inquired as to the state of the partnership's debts or liabilities. After October 1984, he was never called upon to guarantee the partnership's debts, nor called upon by creditors to meet any partnership liabilities, notwithstanding the significant financial pressure the partnership was under in the early 1990s (ts 264 and ts 398). Nor was he called upon to contribute capital to the partnership.

408 In cross-examination, Jack asserted that after October 1984, he had committed the partnership to legal obligations (ts 260). However, when asked to provide details, he asserted that he:

took a different role after 84, so I was mainly out there sourcing resources, property deals which the partnership could take on ... (ts 260)

409 In that context, Jack asserted that he would commit the partnership to transactions subject to his father's approval. When asked to provide an example, he referred to the Mandurah land transaction. However, I have found that he entered into a contract for the acquisition of the Mandurah land without reference to his father, and with a view to taking an interest in his own right. In fact, the partnership never took an interest in the Mandurah land transaction, as such. Rather, Danehill, on behalf of Vince, Guiseppina and the Catalanos, took an interest, only after Vince evaluated the investment and agreed to take such an interest. My analysis of the various transactions to which the plaintiffs refer has not identified any transaction after 1984 which provides material support for the proposition that Jack remained, or believed he remained a partner after that time.

410 Jack accepted in evidence (Jack xn 336 and ts 415) that as from 1997, he brought no business opportunities to Italia, and had no discussions with Vince concerning Italia's business affairs. However, I have found that the cessation of commercial transactions involving Vince and Jack probably occurred around 1994. It follows that on the plaintiffs' own case, Jack took no part in the affairs of the partnership for 11 years prior to the commencement of proceedings, although I have found that in fact Jack took no part in partnership business activities, as a partner, after 1984, and ceased any commercial activity involving other members of the partnership about 14 years prior to the commencement of these proceedings. Further, I have attached significance to the fact that, when Jack wrote to his father in November 2003, he did not assert that he was a member of the partnership.

411 Jack accepted in cross-examination that he has had interests in many, many companies, and has been very entrepreneurial in undertaking property transactions since 1984 (ts 477 - 481). This would have allowed him little time to apply to partnership affairs. The occasional intersection of his property investments with those undertaken by his father must be viewed in that context.

412 In cross-examination, Maria denied that Jack had undertaken a course to obtain a qualification as a real estate salesman so as to undertake a new career in real estate. That denial is implausible. Why else would Jack have sought and obtained such a qualification? Further, Maria denied that Jack was looking for real estate deals to undertake during 1984. However, that denial is inconsistent with the fact, which I have found, that the Maddington transaction was entered into in early November 1984, about three weeks after the accident which resulted in Jack ceasing work in the limestone business. It is unlikely that the Maddington transaction, which involved a number of investors and a land exchange could have been put together in such a short period, and therefore more likely that it was under active consideration before Jack suffered his injury. Maria also stated in cross-examination that Jack was happy working at Italia until his accident, but that is inconsistent with Jack's evidence (ts 544). I do not accept Maria's evidence on these issues.

413 Rudy, Sarina, Guiseppina and Alissa Fazio all gave evidence to the effect that Jack had left the partnership, and was well aware that he had left the partnership. Because of their obvious interest in these matters, I approach their testimony with caution, but the general thrust of their evidence is thoroughly substantiated by the various matters which I have found to be established, mainly by reference to the contemporaneous documents.

414 There are other documents which lend support to the proposition that Jack retired from the partnership, by agreement, with effect from 1 July 1984. In August 1984, Dangan provided security for funds advanced by CBFC to the partners (tb 3/1262). The mortgage has evidently been typed referring to an advance to six partners - namely, Vince, Guiseppina, Rudy, Jack and the Catalanos, but Jack's name has been struck through and he was not required to sign the mortgage.

415 Further, as I have already mentioned, a letter from CBFC to Italia Limestone dated 23 September 1985 refers to the advance, and proposes that the proprietors acknowledge a variation to its terms. That letter refers to R Fazio, and also to G Fazio. However, on the copy in evidence, the latter reference has been struck through, and someone has endorsed:

Note - Giacomino Fazio is no longer involved with Italia L/stn.

416 Ms Rebelo gave evidence that his notation was made in her handwriting (C Rebelo xn 273).

417 There is also a document in evidence prepared by Ms Rebelo showing a summation of all the payments made to Jack as at October 1984 (tb 2/666 and ts 860). Her evidence was to the effect that she was asked to prepare that calculation by Vince, so that there could be a record of the payments Jack had received prior to his departure from the partnership. Although I have a number of reservations about Ms Rebelo's evidence, that aspect of her evidence is inherently plausible, and fits in with the time sequence established by other evidence. As the document is concerned only with cash payments made to Jack, I attach no significance to the fact that no reference is made in the document to the transfer of Barrett Street.

418 The plaintiffs rely upon financial statements for Italia Limestone prepared in respect of the period ending 31 March 1985 (tb 3/1553). Those statements show Jack as a proprietor, and record drawings against his account. The plaintiffs assert that this is only consistent with his continued membership of the partnership. However, those accounts were obviously not end of year accounts. The end of year accounts, for the period ended 30 June 1985, do not contain any reference to Jack (tb e1/19455). That is explained by a journal entry from the books of the partnership (tb 3/1657). That journal shows that Jack's balance at the beginning of the year was cancelled out by correcting entries which are described in the journal as:

Being correction of opening balances (Giacomino Fazio ceased as partner).

419 That journal entry is only consistent with someone having instructed its author that Jack had ceased to be a partner. The evidence does not establish the identity of the author, or of the person giving that instruction. However, there is no reason to suppose that either would have had a motive to misstate the position at this time. There was no then no contention as to Jack's departure from the partnership. It seems most likely that the accounts for the period ending 31 March 1985 were prepared in error, and that the error was corrected in the end of year accounts, and I so find.

420 I have also found that in the course of the dispute relating to Jack's tax liability in early 1985, he became aware that Francis A Jones & Associates had responded to his request for information by asserting that he was not entitled to that information because he had left the partnership.

421 Further, the timing of the transaction relating to the Barrett Street block lends support to the proposition that it was associated with Jack's departure from the partnership. As I have found, the transfer of that block to Jack and Maria was executed in July 1984, and registered in September 1984. The block was committed to the Maddington transaction by November 1984, notwithstanding that, at that time, Vince appears to have been labouring under the mistaken belief that he was to build a house on the property at cost. I do not overlook the written statement signed by Vince in connection with the Mandurah land proceedings, in which he links the gift of the block in Barrett Street to Jack and Maria's wedding, or his will, in which he refers to it as a gift. However, as I have already indicated, it would not be inappropriate for Vince to continue to regard it as a gift, even if given in partial recognition of Jack's relinquishment of an interest in the partnership, given that Jack's interest in the partnership was itself a gift. Moreover, I place considerable weight upon the ledger entry recording that the land was transferred from Danehill in satisfaction of Jack's interest in the partnership.

422 The plaintiffs point to documents which might be construed as referring to Jack as a partner in and after June 1984, and rely upon those documents in the same way as they rely upon documents which omit reference to Rudy as a partner. The first is the mortgage of the Mandurah land to Perpetual on 20 June 1984, which Jack signed as an additional covenantor (tb 3/1091). The plaintiffs assert that it is unlikely that Jack would have signed in this capacity two days prior to his execution of a document showing his renunciation of an interest in the partnership. However, as I have already observed, Jack's execution of this document is most likely referable to his significant personal interest in the transaction proceeding through his interest in M G Constructions.

423 The plaintiffs also point to a banker's undertaking issued by Westpac in favour of the Shire of Mandurah dated 25 February 1985, which refers to it having been issued at the request of the partners of Italia Limestone, including Jack (and Ridolfo) (tb 3/1541). As with Rudy's admission to the partnership, it seems likely that the various financiers with whom the partnership was dealing took some time to bring their records into line with the changed arrangements. I have already referred above to the CBFC statements of account which refer to G Fazio, G Fazio and V Fazio, which I would infer have the same explanation.

424 These appear to be the only documents which erroneously refer to Jack as a partner after 1984 (other than the financial statements for the period ended 31 March 1985 to which I have already referred). This is a miniscule proportion of the documents in evidence relating to the affairs of the partnership after 1984, the others of which are only consistent with Jack's retirement from the partnership.

425 In this context, I turn to the question of whether the business name form dated 22 June 1984 was in fact signed by Jack. In cross-examination, he accepted that the signature on the form apparently adjacent to his name looks like his. He asserted that the signature has either been forged, or was placed by him on the form ignorant of any appreciation of the effect of the form.

426 Rudy gave evidence to the effect that he recalled signing the form, as did Guiseppina. Rudy maintained that evidence in cross-examination.

427 Ms Rebelo gave evidence that she prepared the form, which is in her handwriting (other than the signatures). Her evidence was that she inserted the times and dates into the signature panel on the document only when she observed the signatories physically place their signature on the document (C Rebelo xn 204). According to that evidence, each of Jack, Rudy and Vince signed at 2.20 pm on 22 June 1984, and each of the Catalanos and Guiseppina signed at 2.30 pm that day.

428 The copy of the document in evidence bears a date stamp showing that it was received at the Corporate Affairs Office on 10 October 1984. However, according to Ms Rebelo, she would have taken the document to Francis A Jones & Associates straight after it was executed (C Rebelo xn 208 and ts 870). If that is so, there is no plausible explanation for the apparent delay in the lodgment of the document at the Corporate Affairs Office.

429 As I have mentioned, I formed an adverse view of the credibility of Ms Rebelo based on her demeanour. It may be that she was upset when giving her evidence because she thought that it was being suggested that she had falsified or backdated the document. However, whatever the reason for her hostility and aggression during cross-examination, I would not rely upon her evidence alone on this issue.

430 Opinion evidence was adduced from two witnesses expert in the analysis of handwriting. Their evidence is lengthy and complex. It is, I think, unnecessary for me to analyse that evidence in detail. It is sufficient to record that Mr Gregory, who was called on behalf of the defendants, undertook an analysis of a significant number of specimen signatures relating to Jack, which was inconclusive, in that he could not say with confidence that the signatory was the same person who had signed the other specimen signatures he analysed, nor could he say that the signatory was not the person who had signed the specimen signatures, although he thought it significantly more likely that the author of the impugned signature was the same as the author of the specimen signatures.

431 On the other hand, the expert called by the plaintiffs, Mr Horton, expressed the view that while he would not be dogmatic about the issue, in his opinion, the signature on the document was not written by Mr Fazio. However, Mr Horton observed that there was a wide variability in the specimen signatures provided to him for analysis, apparently emanating from Mr Fazio - indeed, to the point where he considered a number of the specimen signatures had also not been written by Mr Fazio.

432 Having looked carefully at the magnified signature on the form, and the various specimen signatures analysed by each of the experts, in my opinion, it would be imprudent to place too much reliance upon the evidence of handwriting analysis. It is clear, as both experts observe, that there is a significant degree of variation within the signatures applied by Jack to documents from time to time. Mr Gregory's view, to the effect that handwriting analysis cannot conclusively establish, one way or the other, whether Jack signed the document appears to me to be reasonably open, and preferable to the view expressed by Mr Horton. For that reason I do not rely upon the handwriting analysis for the view to which I have come on the question of whether or not Jack signed the form.

433 Rather, it seems to me to be preferable to approach that issue from the perspective of the inherent probabilities given the context established by the other facts which I have found. Taking that approach, I first observe that it would seem improbable that anyone would have forged Jack's signature on the form at this time. There is no evidence that would establish any motive or incentive for anyone to take such a serious step. It is also to be remembered that the form provides particulars which are on a public register, available to all the world. It is inherently likely that fraudulent information, if provided to such a register, would be soon discovered, and this would be known to any reasonable person contemplating such a course.

434 Second, execution of the document by Jack and the other partners in or about late June 1984 is consistent with other facts which I have found. This was around the time Jack completed his qualification as a real estate salesman, and shortly before the execution of the transfer of the Barrett Street block to Jack and Maria. Execution of the document around this time is also consistent with all the accounting records, which show Jack's cessation as a partner with effect from 1 July 1984. It is also consistent with the many other objective indicia to which I have referred.

435 It is curious that the document was not lodged until 10 October 1984. It may be that the document was prepared around that time, and backdated to 22 June 1984 (although Ms Rebelo resisted that proposition strenuously) (ts 866 - 870). It may also be that the document was prepared and executed in late June 1984, but then not delivered to Francis A Jones & Associates until Jack's accident on 8 October 1984, when it became clear that he was to sever his connections with the limestone business. It might also be that the document was executed and delivered to Francis A Jones & Associates in late June 1984, but with instructions that they should not file the document until it became clear that Jack was to sever all connections with the business. It is also possible that the document was executed and delivered to Francis A Jones & Associates in late June 1984, but that for some reason they accidently overlooked filing the document at the Corporate Affairs Office in a timely fashion.

436 It is, I think, unnecessary for me to determine which of these possibilities is more likely than the other. That is because, whatever be the timing sequence, if one accepts, as I do, that Jack executed the document at some point in the middle or latter part of 1984, the precise time of its execution is not significant.

437 Jack asserted that he may have signed the form, ignorant of its contents. I do not accept that assertion. The nature and effect of the form is quite apparent on its face. In the middle of 1984 there was obviously tension arising from Jack's desire to cease working in the limestone business. In that context, Jack's evidence was that he read the building contract provided to him, and refused to insert a price. I think it most unlikely that Jack would not have appreciated the general tenor of the business names form which he signed around this time.

438 There is no direct evidence as to the terms upon which Jack was to retire from the partnership. It is however clear that there was no suggestion at any point that there should be a winding up of the partnership at the time of Jack's retirement. It seems to me that it is open to infer, from the evidence, that it was agreed that there would be no such winding up, and that Jack would retire from the partnership on the basis that he would be absolved from any future liabilities arising from the conduct of the business of the partnership. There is also contemporaneous evidence, in the form of the journal entry, to the effect that the Barrett Street property was provided to Jack and Maria as consideration for Jack's retirement from the partnership. That journal entry is consistent with the facts established by other evidence, and is inherently plausible.

439 For these reasons I find that at some point around the middle of 1984, it was agreed between Jack and Vince that Jack would retire from the partnership with effect from 1 July 1984, on the following terms:

(a) the partnership would continue, without there being a winding up of its affairs;

(b) Jack would be absolved from any liabilities arising from the future conduct of the partnership business; and

(c) Jack and Maria would be given the lot in Barrett Street, Spearwood in consideration for Jack's surrender of his interest in the partnership.

440 The defendants asserted that it was also agreed that Vince would pay for the cost of architect's plans for the house to be built in Barrett Street, as part of the consideration for Jack's retirement from the partnership. However, the evidence falls short of establishing that connection.

441 It is to be inferred that the other partners acquiesced in, and consented to the agreement between Jack and his father in these terms, given that they continued to operate the business, and to prepare and sign documents which are consistent with this finding.

Abandonment, abrogation or repudiation of Jack's interest in the partnership

442 I have found that Jack retired from the partnership by mutual agreement. Having made that finding, it is unnecessary, and inappropriate, for me to determine whether, if I had not so found, I would have concluded that Jack nevertheless abandoned his interest in the partnership, or that there was a mutual abrogation of that interest, or a repudiation of the partnership agreement by Jack which the other partners accepted. Accordingly, it is unnecessary for me to resolve the interesting issues of law raised by the submissions of the parties on these topics.

443 If a different view is taken on appeal on the question of whether Jack retired from the partnership by mutual agreement, I have found all the facts which would enable an appellate court to determine whether those facts gave rise to abandonment, mutual abrogation or repudiation.

Is Jack estopped from asserting an interest in the partnership?

444 Similarly, it would be inconsistent with the finding I have made, to the effect that there was an agreement whereby Jack retired from the partnership, to now make a determination as to whether Jack would be estopped from asserting an interest in the partnership had he not reached such an agreement. The essential facts which would enable such a determination to be made in the event that a different view is taken on the question of whether Jack retired by agreement have been found, and could be utilised by an appellate court, save for the defendants' allegation that Vince and Guiseppina conferred benefits upon Jack and Maria during Vince's lifetime and by his will, which were only conferred because they relied to their detriment upon a belief that Jack would not claim an interest in the partnership. Guiseppina gave no evidence to that effect, nor was there any evidence to enable an inference to be drawn to that effect in respect of Vince's state of mind and actions. The evidence supports the conclusion that there was no question raised as to Jack's membership of the partnership until late 2003, and thereafter the benefit conferred upon Jack in Vince's will was most likely conferred with knowledge of the prospect that Jack might make a claim.

Are Guiseppina and the estate of Vince estopped from denying that Jack is entitled to one-third of their interest in the partnership?

445 Because of the views which I have formed on the facts, it is unnecessary to undertake a detailed analysis of the law relating to the doctrine of equitable estoppel. It is sufficient to record that for the purposes of this case, I have taken the law to be as stated by Brennan J in Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; (1988) 164 CLR 387, at 428 - 429:

In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

446 In the circumstances of this case, the plaintiffs assert that they assumed that Jack remained a partner, that their beliefs were induced by representations from Vince and Guiseppina to that effect, that Jack acted in reliance upon that assumption, to the knowledge of Vince and Guiseppina, as a result of which he would suffer detriment if he is denied the partnership interest which he has assumed he had. Expressed in this way, it will be seen that the essential issues are:

(a) Did Vince represent to Jack and Maria that Jack remained a partner, with Guiseppina's concurrence?

(b) Did Jack and Maria believe that Jack remained a partner?

(c) Did Jack rely upon that belief to his detriment?

(d) Did Vince know that Jack was relying upon that belief?

447 I have referred above, in the context of the individual transactions I have analysed, to the evidence given by Jack and Maria on the subject of representations to the effect that Jack continued to be a member of the partnership. I have found that evidence to be inconsistent with the facts which I have found, and inherently implausible. In a number of instances, the transactions were structured in a way that is inconsistent with the proposition that Jack had a continuing interest in the partnership - including the Hope Valley transaction, the Mount Barker stone transaction, the Lime Industries transaction, the Nowergup transaction, the Rowley Road transaction, the Flynn Road transaction, the Seabird transaction, and the investment in the G & R Wills Building.

448 Further, representations to the effect that Jack continued to remain a partner would have been inconsistent with all the objective matters known to all concerned - namely, that Jack was not involved in the partnership business, that he received no profits from the partnership or accounts relating to the partnership business, that he was never called upon to sign partnership documents, contribute capital, pay tax on profits, etc. The making of representations to the effect alleged would also have been fundamentally inconsistent with Jack and Maria's evidence as to the Sunday dinner incident, and the baptism incident, both of which were triggered by Jack's dissatisfaction at not being a partner in the business.

449 Accordingly, I do not accept that any representations were made after mid-1984 to the effect that Jack was a partner in the business. Nor is there any evidence that either Jack or Maria believed that Jack was a partner in the business until Jack started asserting that claim some time in the latter part of 2003. Given the findings of fact which I have made, it could not be said that either Jack or Maria held a reasonable belief, to which either Guiseppina or Vince contributed, to the effect that Jack remained a partner, or that they relied upon that belief to their detriment. Nor could it be said that Vince was aware of that belief. Particulars were given in par 29 of the statement of claim of Vince's knowledge of Jack's belief that he was a partner, but none of the particulars given post-date 1984. Accordingly, I reject the plaintiffs' assertion that Guiseppina and the estate of Vince are estopped from denying that Jack is entitled to one-third of their interest in the partnership. It is therefore unnecessary, and inappropriate to consider the relief properly granted if the estoppel claim had succeeded.

Has Jack exercised an option to acquire the interests of each of Guiseppina and the estate of Vince in the partnership?

450 It follows from the findings I have made, in particular the finding that the 1968 agreement did not govern the partnership and that, in any event, Rudy was admitted into the partnership with Jack's consent, that there is no basis upon which Jack can assert an entitlement to the acquisition of the interests of Guiseppina and the estate of Vince in the partnership.

451 I have found that Jack retired from the partnership by agreement in 1984, and received, by way of consideration, release from the future liabilities of the partnership, and the transfer of the Barrett Street block. I have also found that it was a term of that agreement that the partnership would continue, without being wound up. It follows that Jack is not entitled to a winding up order.

Are the defendants estopped from denying Jack's entitlement to one-third of the various assets described as 'Fazio family assets'?

452 Turning now to the question of whether the defendants are estopped from asserting that Jack is entitled to, effectively, one-third of every asset acquired at any time, irrespective of Jack's contribution to that asset. It must first be observed that a claim of that breadth is extraordinary. Although enunciated, upon the basis of both a promissory and a proprietary estoppel, arising from benefits conferred enhancing the value of assets owned by the defendants as a result of Jack's endeavours, the evidence is manifestly incapable of sustaining any claim to an equitable interest arising from proprietary estoppel in respect of any such asset. To the extent that Jack was involved in transactions which occurred prior to his departure from the partnership, he was motivated by familial considerations or his acknowledged interest in the partnership. However, when he retired from the partnership by agreement in 1984, he surrendered any interest in the partnership for consideration, and therefore any entitlement to claim equitable interests arising from his contributions as a partner. In relation to the transactions which occurred after 1984, I have not identified any transaction in which Jack has conferred a benefit upon any defendant of a kind which is capable of giving rise to a proprietary estoppel. Rather, as I have found, Jack appears to have been motivated in each transaction by the pursuit of his own interests, and I have not found any occasion upon which property acquired by any of the defendants has been improved or enhanced by any contribution made by the plaintiffs, such that it would be unconscionable for them to deny Jack's equity.

453 Jack's claim to the interest asserted on the basis of promissory estoppel is said to rest upon representations made by Vince, in which Guiseppina concurred, acting with the authority of the corporate entities who are the owners of the relevant assets inducing a belief upon which Jack relied to his detriment, to the effect that one-third of the Fazio family assets would be transferred to them on or before the death of Vince. The same representations are relied upon as evidence of Vince's knowledge of Jack's belief (statement of claim, par 27)

454 As I have already observed, the assertions made by Jack and Maria in their evidence as to these representations are made at a level of extreme generality. On the occasions where the evidence is given in the context of a particular transaction, I have rejected the evidence, as it appears to me to be inherently implausible, given its inconsistency with the structure of the related transaction. As I have mentioned, the evidence adduced by the plaintiffs also appears to conflate the representations and belief that Jack was a partner, with the alleged representations and belief to the effect that Jack would receive 'one-third of everything', at some unspecified time before or upon Vince's death. I have drawn attention above to a portion of Jack's cross-examination where this is evident. By way of another example, in Jack's evidence-in-chief, he asserted that he provided the opportunities to participate in the transactions to which he referred because he believed that he was a partner (Jack xn 156). He did not at that point assert that he did so because he believed that he would, in due course, be entitled to one-third of everything. However, at another point in his evidence-in-chief, Jack attempted to reconcile these propositions by asserting that his third of the Fazio side of the partnership would be taken into account in arriving at the 'one-third, one-third, one-third' division (Jack xn 362).

455 In cross-examination, Jack went so far as to assert that his father said 'continuously ... well into 2005/6' that Jack was or would be entitled to a third of all family assets (ts 406). Given the findings I have made in relation to the Sunday dinner incident, the baptism incident, and the office altercation, this evidence is inherently implausible, and I reject it. Jack and Maria's evidence of those events is entirely inconsistent with any proposition that they were told, or believed, that Jack had or would receive an entitlement to one-third of everything.

456 Maria's evidence on this topic was also given at a level of great generality. She went so far as to assert that Vince would say, without prompting, all the time during the 1980s and 1990s, that his children were all equal and would be entitled to one-third of all the assets (see for example Maria xn 83). Again, given the findings I have made as to the incident in 1994, this evidence is inherently implausible and I reject it.

457 Perhaps predictably, the evidence of Rudy and Guiseppina contradicts that given by Jack and Maria on this topic. In rejecting Jack and Maria's evidence on this issue, I do not rely so much upon the evidence of family members who are clearly opposed to their interests, but rather upon the inherent improbability of their assertions, given the facts which I have found.

458 Mr Guiseppe Monastra gave evidence to the effect that he had heard Vince promise to Jack, on a number of occasions, that everything would be 'one-third, one-third, one-third' (G Monastra xn 24). However, that evidence was in the context of discussions between Jack and Vince about the inadequacy of Jack's wages. It follows that these representations must have occurred prior to Jack's departure from the partnership in October 1984. Accordingly, if representations were made as Mr Monastra alleges, they were made in the quite different environment in which Jack was contributing his labour to the partnership business. Mr Monastra confirmed in cross-examination that he could not recall any occasions after 1984 in which Vince said anything about what he might do with his assets when he died.

459 For these reasons, I reject the evidence of Jack and Maria to the effect that representations were made by Vince, with the concurrence of Guiseppina, that Jack would be entitled to one-third of everything. Nor do I accept that Jack believed that he would be entitled to one-third of everything, as that belief would be inconsistent with the acrimonious events described in his evidence, and the way in which he structured the various transactions in which he was involved so as to take a personal interest quite separate and distinct from the interest taken by his parents. Nor is there any evidence that Jack acted in reliance upon any such belief. Rather, the evidence establishes that Jack was at all times after 1984 motivated by his own interests in each and every one of the transactions placed before the court.

460 For these various reasons, I reject the plaintiffs' claim that the doctrine of estoppel provides Jack with an entitlement to a one-third interest in the various assets identified in the course of the proceedings.

Are the various assets identified in the pleadings held by various corporate entities on trust for the partnership?

461 Because I have determined that the plaintiffs are not entitled to any relief arising from their claimed entitlement to an interest in the partnership, it is not strictly necessary to determine this aspect of their claim. Further, the precise legal basis upon which this aspect of the plaintiffs' claim is advanced was not clearly enunciated in the statement of claim or either opening or closing submissions. For example, it is not clear to me whether the plaintiffs assert that the transactions which resulted in the acquisition of real estate by different corporate entities, trading on behalf of trusts which have differing beneficiaries are a sham. I rather got the impression that the essential basis of the plaintiffs' proposition was that because there was a coincidence between the identity of some of the partners, and the identity of some of the natural persons interested in the corporate entities and trusts which acquired the assets, it should be concluded that the corporate entities acquired those assets on trust for the partnership, rather than in their own right, or on behalf of the trusts of which they were express trustees. I am not aware of any legal doctrine which would support such a sweeping conclusion.

462 In the plaintiffs' closing submissions, a somewhat more refined approach was taken, suggesting that an express trust should be inferred from evidence as to Vince's intent. Reliance was placed on the following passage from the statement of the evidence to be given by Vince in the 2007 proceedings concerning the Mandurah land:

In about 1978, Sam Catalano, Guiseppina and I created a new corporate entity Danehill Nominees Pty Ltd (Danehill) to purchase any property the business acquired. [39]

463 I am unable to see how that statement, if accepted, would support the creation of an express trust of which the partners were beneficiaries. To the contrary, it appears to me to establish an intent that the assets be held by the corporate entity in contradistinction to the partnership.

464 Reliance is also placed upon a passage in the evidence given by Rudy, but, of course, Rudy cannot give evidence as to Vince's intent, unless in the form of evidence of statements made by Vince (which was not the form of the evidence) (ts 698).

465 What is clear from the facts which I have found is that there was a consistent practice of separating the ownership of capital assets from the partnership which carried on day-to-day business. Capital assets were acquired in the name of different corporate entities, trading on behalf of different express trusts. This was done quite deliberately, and on the basis of legal advice. There is nothing in the evidence which suggests that it should be inferred that those transactions were a sham, or that the parties to them intended that beneficial interests in the properties acquired should be held other than in accordance with the corporate and trust structures which were expressly created. To the contrary, the large volume of documentary evidence listed by the plaintiffs in their closing submissions (schedules 8 and 9) shows a consistent pattern whereby the business used assets owned and acquired by other entities and individuals. The fact that partnership drawings, or loans from the partnership might have been used to acquire those assets falls manifestly short of establishing a trust relationship. Even assuming (without any evidence to that effect) that the structures were motivated by a desire to defeat the claims of creditors, that assumption would not compel the conclusion which the plaintiffs seek, because, of course, an inferred intention to confer an equitable interest on the members of the partnership would be quite destructive of the objective assumed.

466 The plaintiffs also relied upon the principle in Barnes v Addy (1874) LR 9 Ch App 244 in closing submissions. They assert that it should be concluded that the other partners 'diverted' asset acquisitions away from the partnership, and towards the corporate entities and individuals who acquired those assets, in breach of the fiduciary obligations owed to Jack, as a partner. They further assert that the assets were acquired by the relevant corporate entities or individuals with knowledge of that breach of the duty, with the result that the assets are impressed with a trust in favour of the partnership.

467 This is not how the plaintiffs' case was pleaded, but in any case, the fundamental basis of this assertion falls away if, as I have found, Jack was not a partner when the assets were acquired, or, as I have also found, if he surrendered his interest in the partnership for consideration.

468 There is no substance in the plaintiffs' assertions that the various defendants should be regarded as holding assets on trust for the partnership, and that aspect of the plaintiffs' claim must be rejected.

The Limitation Act, acquiescence and laches

469 As I have determined that the plaintiffs have not established their causes of action, it is impossible to determine the defendants' propositions that the plaintiffs' claim should be barred by reason of delay in the commencement of these proceedings after the accrual of a cause of action, either pursuant to the provisions of the Limitation Act, or by equitable analogy to those provisions, or by acquiescence, or by the application of the equitable doctrine of laches.

470 Should a different view be taken on appeal, the facts which I have found should be sufficient to enable those issues to be determined by an appellate court.

471 It follows that I have concluded that all the plaintiffs' claims are without merit and should be dismissed.

472 The defendants counterclaim for declarations as to the nature of the business carried on by the partnership since 1999, and as to the extent of the assets of the partnership. It is not clear to me why such declarations would be necessary, if, as I have concluded, Jack has no claim or interest in the partnership. Further, it would seem possible that such declarations could have an impact on the interests of the parties not before the court, such as creditors of the partnership, so that it would be inappropriate to grant declaratory relief. I am tentatively inclined to the view that no such relief should be granted, but I will give the parties an opportunity to provide submissions on the topic after the publication of these reasons.