First Plaintiff v Defendants

2 The Application is made pursuant to sections 62 and 63 of the Civil Procedure Act 2010 ('CPA').

3 By email dated 11 December 2018, the solicitors for the first defendant, Resi Ventures Leakes Pty Ltd ('Resi Leakes') confirmed that Resi Leakes had no role to play in the Application and confirmed that Resi Leakes would not attend the hearing. Counsel for the third defendant, Zhaoqing Dai ('Ms Dai'), appeared at the hearing but made no submissions, the Application not affecting Ms Dai either.

4 GBP relies on an affidavit sworn 5 November 2018 by Benjamin Dowling in support of the Application ('Dowling Affidavit'). Mr Dowling is a solicitor employed by Moray & Agnew, solicitors for GBP.

5 In opposition to the Application, the plaintiffs rely on the affidavits of:

(a) Robert Liu, affirmed 21 November 2018 ('Liu Affidavit'); and

(b) Ji An Liu, affirmed 21 November 2018. In this affidavit, Ji An Liu simply refers to the Liu Affidavit and says that he agrees with its content.

6 Counsel for GBP and Resi Leakes provided written submissions and made extensive oral submissions at the hearing. I am indebted to both counsel for the quality and helpfulness of their submissions.

7 For the reasons set out below, I will not grant the Application. In keeping with the usual practice of this Court when declining to grant summary judgment, I will avoid transgressing too far into my views as to the merits of the parties' cases. Some analysis of that is required, however, in order to determine the Application.

8 It is necessary to set out the background to this dispute, so as to consider whether the plaintiffs' claims against GBP have a real prospect of success.

9 This proceeding concerns the sale and development of three adjoining lots of land in Rockbank, Victoria ('Land'). During 2015, Robert Liu entered into contracts of sale to buy two of these lots, and for himself and as agent of Ji An Liu and Ms Dai, Robert Liu entered into a sale contract for the third lot.

10 Robert Liu did not complete these contracts of sale. He sought to identify a developer to whom he could on-sell the lots by substituting as purchaser under the contracts of sale. In May 2016, he had discussions with Resi Ventures Holdings Pty Ltd ('Resi Ventures'), a related entity of Resi Leakes,[2] but no agreement was reached. Mr Liu approached Resi Ventures again, later that year, who directed him to Jason Giarrusso, the sole director of GBP. GBP is an entity engaged to source development opportunities on behalf of Resi Ventures.

11 Those later discussions resulted in a signed terms sheet, signed on or about 18 October 2016 ('Term Sheet') by Mr Giarrusso as director of CBP and by Ji An Liu as attorney for Robert Liu.[3] The Term Sheet is a short document and it is necessary to set it out in full:

Date: 18th of October 2016.

TERMS SHEET FOR NOMINATION OF PROPERTIES AT 1220, 1232 & 1254 LEAKES ROAD ROCKBANK.

This agreement is between;

GB Projects Pty Ltd (GBP) and or nominee and Robert Liu (RL).

1. RL to nominate GBP into current contracts of sale being;

1. 1232 Leakes Rd Rockbank- Purchase price $2.28m ($912k deposit paid) settlement due 31/10/16
2. 1220 Leakes Rd Rockbank- Purchase price $3.4m ($340k deposit paid) settlement due 25/11/16

1. 1254 Leakes Rd Rockbank- Purchase price $5.5m ($825k deposit has been paid) settlement due 1/9/17 (further $275k deposit due 2/1/17)

1. GBP to refund all deposits paid by RL on first two properties at settlement on 25/11/16.
2. GBP to fund next deposit of $275k due in Jan 17 on contract for 1254 Leakes Rd.
3. GBP to refund all deposits paid on 1254 to RL at settlement of that contract.
4. GBP to pay RL a fixed upside amount of $3,000,000.00 paid via a $10,000 per lot fee agreement paid at settlement of each lot on a stage by stage basis, so that is 300 lots x $10k per lot paid at settlement of each lot sold.
5. GBP will pay penalty interest on late settlement and will settle 1232 contract before 31st October 2016.

On signing of this term sheet GBP will register a new company to be nominated into the contracts.

12 This proceeding concerns the payments referred to in clause 5 of the Term Sheet, which I shall refer to as the 'Lot Fees'.

13 On 19 October 2016, GBP passed the Term Sheet on to Resi Ventures, giving the latter until the end of the day to confirm it wanted the deal GBP had negotiated with Robert Liu as Mr Giarrusso would then approach other parties. Later that day, Mr Giarrusso sent an email to Resi Ventures' solicitor in respect of this transaction and told him that Resi Ventures had agreed to proceed on the terms GBP had signed up to.

14 On 24 October 2016, Resi Leakes was incorporated and registered with the Australian Securities and Investments Commission. It seems to be common ground that Resi Leakes was a special purpose vehicle created for the purchase and development of the Land.

15 There were communications, both oral and via email, between GBP, Resi Leakes and Robert Liu (or their respective agents) on 26 October 2018 where Robert Liu sought and was given confirmation as to the likely lot breakdown for each of the three properties comprising the Land, so that he could calculate the proportion of the Lot Fees to which Ms Dai was entitled.

16 On 26 October 2018, Resi Leakes and Robert Liu executed a deed titled 'Nomination Agreement' ('Nomination Deed').[4] GBP is not a party to that agreement.

17 The Nomination Deed relevantly provides as follows:

(a) In consideration of Resi Leakes agreeing to pay the reimbursement amount to Robert Liu, Robert Liu agrees to nominate Resi Leakes as substituted purchaser;

(b) The reimbursement amount to be paid by way of consideration was the amount of the deposits paid under the sale contracts;

(c) On and from the date of the deed, Resi Leakes may exercise all the rights and directions, and must perform all the obligations, of the purchaser under the contracts of sale for the Land;

(d) Mr Liu warranted that:

(i) He had the right to nominate Resi Leakes as substitute purchaser;

(ii) He had not sold or granted any option to purchase, agreed to a lease or granted a pre-emptive right in relation to the Land or a contract which is current and gives another party rights which have or may have priority over Resi Leakes' interest;

(iii) He had disclosed all material information in relation to the Land and any other matter which may be relevant to Resi Leakes;

(e) The Nomination Deed constituted the 'sole and entire agreement between the parties and no warranties, representations, guarantees or other terms and conditions of any nature not contained and recorded therein will be of any force or effect'.

18 The Nomination Deed did not provide for the payment of any amounts to Robert Liu by way of Lot Fees.

19 It is common ground that after 26 October 2017, Robert Liu effected the nomination of Resi Leakes by delivering the relevant documents to the vendors under each contract of sale for the Land. Resi Leakes subsequently completed those contracts and took a transfer of the Land, and is now the registered proprietor of it.

20 As I understand it, Resi Leakes made the payments required by the Nomination Deed to Robert Liu, but did not pay him the Lot Fees. By this proceeding, the plaintiffs seek to recover the Lot Fees from Resi Leakes or GBP. Ms Dai assigned her rights to make any claim in respect of the Lot Fees to the plaintiffs on or about 12 April 2018: no claim is made against her by the plaintiffs - the plaintiffs say they have joined her for procedural reasons.

21 The primary claims made by the plaintiffs in this proceeding are made against Resi Leakes. The plaintiffs claim that:

(a) The Term Sheet was a pre-incorporation contract, for the benefit of Resi Leakes, within the meaning of s 131 of the Corporations Act 2001 (Cth), and therefore binding upon it; or

(b) Alternatively, the Term Sheet was novated or assigned to Resi Leakes; or

(c) Alternatively, that Resi Leakes is estopped from denying liability under the Term Sheet.

22 The plaintiffs' claim against GBP is made further in the alternative to their claims against Resi Leakes. They plead that, should they be unsuccessful in their claims against Resi Leakes, GBP is liable to pay them the Lot Fees. This claim is in contract, as the plaintiffs plead that if liability under the Term Sheet has not been transferred to Resi Leakes, then GBP remains liable under it. The plaintiffs further allege that by denying such liability, GBP has repudiated the Term Sheet, causing them loss.

23 Resi Leakes and GBP deny these claims. In summary, they say that the Term Sheet was a non-binding heads of agreement, and that between the time it was presented to Resi Leakes and the Nomination Deed was entered into, Resi Leakes and Robert Liu negotiated different terms, those terms being the ones contained in the Nomination Deed.

24 There was no dispute between the parties as to the principles applicable to applications for summary judgment.

25 Section 62 of the CPA permits a defendant to make an application for summary judgment on the ground that the plaintiff's claim (or part thereof) has no real prospect of success. Section 63 of the CPA provides (subject to s 64) that the Court may give summary judgment in a civil proceeding if it is satisfied that a claim, defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has 'no real prospect of success'.

26 Section 64 of the CPA provides that:

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

27 The Court of Appeal has set out the test to be applied in this context in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[5] Upon the present state of authority:

(a) The test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;

(b) The test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

(c) It should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) At the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

28 Section 7(1) of the CPA sets out its overarching purpose, being to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 9 of the CPA requires the Court to have regard to these purposes in making any order or giving any direction in a civil proceeding.

29 It was common ground between the parties that for the purposes of the Application (and only for that purpose), the Court ought assume that the Term Sheet was a binding contract between GBP and Robert Liu. Therefore, I have not considered whether the Term Sheet is binding.

30 The nature and content of the Term Sheet means that it is clearly open to interpretation: there is much about it that could be interpreted in different ways. The plaintiffs say that where it refers to GBP in paragraph 1 of the Term Sheet, it should be read as 'GBP or its nominee'. For the purposes of the Application, GBP accepts that clause 1 of the Term Sheet is susceptible to that interpretation.

31 It is not necessary to consider the merits of the plaintiffs' claims against Resi Leakes. Although they say that their claim against GBP arises only if they are unsuccessful against Resi Leakes, this does not mean that I have to consider whether that is a likely outcome. The issue for me to consider is whether the plaintiffs' claim in contract that GBP is liable under the Term Sheet to pay the Lot Fees to them has a real prospect of success, assuming for this purpose that the Term Sheet is binding.

32 GBP says that the core issue for determination on the Application is whether there is any viable basis in contract for GBP to be held liable under the Term Sheet for the payment of the Lot Fees, in circumstances where the later Nomination Deed deals with the same subject matter in an inconsistent way and in relation to a different party. GBP says that the entire commercial purpose and substratum of the Term Sheet, being the nomination of GBP as purchaser, has fallen away because Robert Liu has nominated another entity and that nomination is complete. In those circumstances, the plaintiffs cannot look to GBP to fulfil any obligations under the Term Sheet, as GBP cannot be compelled to suffer the burden of the contract without having received the benefit.

33 GBP submits that the plaintiffs' contention is that there were two binding agreements on foot simultaneously: the Term Sheet with GBP and the Nomination Deed with Resi Leakes. GBP submits that as a matter of fact and law, it cannot be the case that Robert Liu had two binding agreements on foot, with two different parties, dealing with the purchase of the Land. It says that the Term Sheet and the Nomination Deed cannot co-exist because they deal with the same subject matter in contradictory ways, and create inconsistent rights and obligations. GBP says that it is impossible for the obligations under both contracts to be performed: the Term Sheet compels Robert Liu to nominate GBP as purchaser; the Nomination Deed compels Robert Liu to nominate Resi Leakes. He cannot do both.

34 GBP then submits that if both contracts cannot co-exist, then the execution of the Nomination Deed must have had the effect of:

(a) Discharging, or bringing to an end, the Term Sheet; or

(b) Relieving GBP of its obligation to pay any Lot Fees because of Robert Liu's inability to perform an essential term of the bargain (being the nomination); or

(c) Frustrating the earlier Term Sheet such that it is now discharged by operation of law; or

(d) Evincing the intention of the parties to abandon the Term Sheet.

35 Each of these submissions was developed in GBP's written outline, including by reference to case law. There is no need for me to repeat that here. At the hearing, GBP relied on all of these but emphasised the submission summarised in (b) of the preceding paragraph. In effect, GBP says that its core point is that the plaintiffs cannot claim damages from GBP (being the Lot Fees) when they are incapable of performing their obligations under the Term Sheet, being to nominate GBP as purchaser.

36 GBP says that rights which are inconsistent with the Term Sheet have been created by the Nomination Deed, rights which have been performed under the operative parts of the Nomination Deed and by nominating Resi Leakes into the purchase contracts. This is not a case, says GBP, of inconsistent rights between the same parties, but inconsistent rights which cannot be performed at the same time by one party. Even if there is a live contractual obligation under the Term Sheet, the plaintiffs cannot perform it.

37 Relying on Foran v Wight,[6] GBP says that a person cannot seek damages for breach of a contract which that person is not ready, willing and able to perform. Further, GBP says that the only person with a contractual right to compel the plaintiffs to do anything under the Term Sheet was GBP, or Resi under the Nomination Deed, as these were separate bundles of rights owed to different parties.[7] Even if it is accepted that GBP was always going to nominate someone else to take the nomination of the purchase contracts, the way this occurred created inconsistent rights. In this regard, GBP observed that the plaintiffs do not plead that GBP in fact nominated Resi Leakes.

38 Much of the plaintiffs' written outline deals with their position that Resi Leakes is liable to make payment of the Lot Fees, as the obligation under the Term Sheet to do so was transferred to or assumed by Resi Leakes. As mentioned above, it is not necessary for me to deal with that.

39 The plaintiffs' written outline says that this is their primary claim, and that their claim against GBP is brought solely in the alternative if it is found that Resi Leakes is not liable to pay the Lot Fees. They say that on that hypothesis, why should GBP's liability under the Term Sheet be treated as extinguished? GBP had agreed to pay the Lot Fees - while it may have been anticipated that this obligation would be transferred to Resi Leakes, Resi Leakes is denying that obligation. If that is correct, the plaintiffs say that the Term Sheet remains binding on GBP as the original obligor thereunder.

40 In support of this proposition, Resi Leakes relies on answers given in cross-examination by Mr Giarrusso in a separate proceeding.[8] In those answers, Mr Giarrusso said that the Lot Fees were still to be paid, and that they were to be paid as per the Term Sheet by Resi Leakes as he had handed over those terms to Resi Ventures (which then incorporated Resi Leakes to be the nominated purchaser). Further, Mr Giarrusso said that prior to any novation in favour of Resi Leakes, he had personal liabilities under the Term Sheet to Robert Liu, including the payment of the Lot Fees. Mr Giarrusso stated that he believed he had been relieved of the liability to pay the Lot Fees when the plaintiffs signed the Nomination Deed with Resi Leakes.[9]

41 The plaintiffs say that the question in this proceeding, insofar as it involves GBP, is whether this liability of GBP remains on foot if GBP has not validly transferred the liability to pay the Lot Fees to Resi Leakes. They say that the answer 'yes' is, at the very least, a viable contention that cannot be summarily foreclosed by this Application, and that the claim should proceed to trial in the ordinary way.

42 The plaintiffs say that there is no real contradiction between the Term Sheet and the Nomination Deed, because clauses 1 to 6 of the Term Sheet are coloured by the preface "GBP and/or nominee and RL", such that an interpretation is imposed on those clauses of "GBP and/or nominee". If clause 1 is construed as saying that Robert Liu is to nominate GBP or an entity nominated or specified by GBP, then what has occurred here is that GBP introduced Resi Leakes and a nomination deed was entered into so as to fulfil clause 1. By this, the plaintiffs say that the Nomination Deed gave effect to clause 1 of the Term Sheet, and that such a proposition must be arguable.

43 The plaintiffs also say that events subsequent to entering into the Term Sheet were not so inconsistent (if they were inconsistent at all) that the Term Sheet completely falls away. The Nomination Deed is not inconsistent with the Term Sheet, as the plaintiffs had the right to nominate Resi Leakes under it as the Term Sheet provided for a nomination to GBP or a person specified by GBP. Rather, say the plaintiffs, the events subsequent to the Term Sheet are consistent with Resi Leakes taking over GBP's obligations under the Term Sheet and there was no indication that the Term Sheet was to come to an end.

44 Further, the plaintiffs say that GBP either had to honour the whole of the deal under the Term Sheet (ie be nominated as the purchaser under the sale contracts and make the payments set out in the Term Sheet) or procure a nominee to take over the whole of that deal. If that did not happen, in that the nominee did not take over the whole of the deal, then why does that necessarily mean that the plaintiffs must fail against GBP? If GBP did not procure a proper transference or novation of the agreement embodied in the Term Sheet in toto, then GBP has breached the agreement. When I pointed out that the plaintiffs do not plead their case against GBP in this way, Mr McKay indicated that if all of GBP's liabilities had not been transferred one way or the other to Resi Leakes, then an extant and unfulfilled liability on the part of GBP remains.

45 Noting that GBP conceded that for the purposes of the Application, clause 1 of the Term Sheet is susceptible to a reading of "GBP and/or nominee" in lieu of "GBP", GBP submitted that the difficulty for the plaintiffs' submission is not that meaning, but that the Nomination Deed is not a nomination by GBP. The Nomination Deed stands as a separate bundle of mutually exclusive rights, and the source of the plaintiffs' obligation to nominate Resi Leakes as purchaser under the sale contracts is the Nomination Deed. If that is accepted, then the inconsistency arises, as it is not the end result that should be looked at (ie Resi Leakes becoming the registered proprietor) but the source of the right by which Resi Leakes became the registered proprietor. That, says GBP, is the contradiction and inconsistency with the Term Sheet.

46 GBP also says that the plaintiffs' submission that the Nomination Deed was how clause 1 of the Term Sheet was given effect to relies upon an argument that the Term Sheet can be bifurcated into a nomination obligation and a payment obligation. The Nomination Deed is not the fulfilment of clause 1 of the Term Sheet as GBP is not a party to the Nomination Deed: rather, the Nomination Deed is a standalone agreement by which the plaintiffs came under an obligation to nominate Resi Leakes as purchaser under the sale contracts, and Resi Leakes came under an obligation to make certain payments to the plaintiffs.

47 There is much about GBP's submission that is persuasive. It is difficult to resist a proposition that a party cannot expect to receive the benefit of a contract if it is not in a position to fulfil the burdens it has assumed under the contract.

48 However, the question may not be that simple. GBP's primary submission rests on the contention that the rights and obligations created under the Nomination Deed are inconsistent with, and contradictory to, the rights and obligations under the Term Sheet. But this contention in turn rests on the proposition that Robert Liu cannot fulfil the obligation to nominate GBP under the Term Sheet when he has assumed an obligation to nominate Resi Leakes under the Nomination Deed. Given that GBP concedes, for the purpose of the Application, that clause 1 of the Term Sheet is susceptible to an interpretation that the obligation is to "nominate GBP and/or nominee", it cannot be concluded that there is no real prospect of the Court concluding, after a trial, that the Term Sheet and Nomination Deed (or at least the obligation to nominate GBP or another entity specified by it) are not inconsistent and contradictory. If the obligation under the Term Sheet was to nominate GBP or another entity specified by it, then it may not be possible to say, as GBP submitted, that the entire commercial purpose and substratum of the Term Sheet has fallen away because Robert Liu nominated that other entity and that nomination is complete. Similarly, it is not fanciful to suggest that Robert Liu can fulfil both clause 1 of the Term Sheet and the nomination under the Nomination Deed.

49 That being the case, it is not possible for me to conclude, in a summary application and without all of the evidence which would be led and tested at a trial, that there is no real prospect that the Term Sheet has no further work to do so far as GBP is concerned.

50 I agree with the plaintiffs' submission that GBP's reliance on the 'entire agreement' clause in the Nomination Deed[10] does not assist GBP in this Application, primarily because GBP is not a party to the Nomination Deed. On its terms, this clause deals with any antecedent agreements between Robert Liu and Resi Leakes, not with any separate agreements between Robert Liu and GBP.

51 The plaintiffs' case against GBP is explicitly put as a 'fallback' position if it does not succeed against Resi Leakes. It is clearly a secondary argument and one which relies on a number of contingencies which will have to be established in order for it to succeed, and there are a number of difficulties with it that the plaintiffs will have to overcome if they are to succeed against GBP. That does not mean, however, that it has no real prospect of success against GBP.

52 This is an instance where, in the words of the Court of Appeal in Lysaght, 'the power to terminate proceedings [ie the proceedings against GBP] summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried'.[11] With that in mind, I am not prepared to exercise the power to dismiss the plaintiffs' claim against GBP.

53 Further, in the circumstances of this case, there are other reasons why I do not consider it appropriate that the questions raised by the Application be determined summarily. Questions such as the interpretation of the Term Sheet; whether the Term Sheet and the Nomination Deed can co-exist such that obligations under the Term Sheet are able to be enforced, and against whom; and whether clause 1 of the Term Sheet was fulfilled via the Nomination Deed, are all questions which will need to be explored and determined in the plaintiffs' case against Resi Leakes. It is not appropriate, therefore, that the Court summarily dismiss the plaintiffs' claim against GBP, when to do so means the Court has to take a view on those questions which will remain live during the trial. It is not in the interests of justice that there be a risk of inconsistent findings. Accordingly, even if I had been minded to grant the Application, I would decline to do so pursuant to s 64 of the CPA.

54 For the reasons set out above, I will not grant GBP's application that the plaintiffs' claim against it be summarily dismissed.

55 My preliminary view is that ordinary course in relation to costs should apply, with costs to follow the event. That is, GBP should pay the plaintiffs' costs of and incidental to the Application on a standard basis. The plaintiffs and GBP are requested to confer and, if they have a different view to that expressed, then short written submissions (of no more than 3 pages each) along with any affidavit(s) relied upon should be submitted to my Chambers and I will make a ruling on costs on the papers. In relation to Ms Dai's costs, my preliminary view is that there should be no order as to costs: although the proceeding was listed for directions as well as the hearing of the Application, Ms Dai's legal representatives did not need to attend Court for the hearing of the Application and could have taken a similar approach to Resi Leakes. However, GBP and Ms Dai are also requested to confer and, if they have a different view to that expressed, then short written submissions (of no more than 3 pages each) along with any affidavit(s) relied upon should be submitted to my Chambers and I will make a ruling on costs on the papers.

56 Once the parties have had an opportunity to consider these reasons, they are requested to confer in respect of possible dates for, and the issues to be dealt with, at a directions hearing and to contact my Associate to arrange for the proceeding to be listed for directions.

[1] By orders made on the Court's own motion, the Application was referred to me for hearing and determination, pursuant to r 84.04 of the Supreme Court (General Civil Procedure) Rules 2015 ('Rules'). Initially, GBP also sought security for costs in its amended summons (as did the first defendant by separate summons), however both security for costs applications were resolved by consent prior to the hearing. Therefore, the hearing of the Application was confined to GBP's summary judgment application.

[2] An ASIC company search for Resi Leakes reveals that all shares in it are owned by Resi Ventures: exhibit RL-13 to the Liu Affidavit.

[3] Exhibit BD-1 to the Dowling Affidavit.

[4] Exhibit BD-2 to the Dowling Affidavit.

[5] [2013] VSCA 158; (2013) 42 VR 27, 40 [35] ('Lysaght').

[6] [1989] HCA 51; (1989) 168 CLR 385, 417, 423.

[7] 428 Little Bourke Street Pty Ltd v Lonsdale Street Café Pty Ltd & Ors [2009] VSC 133.

[8] The separate proceeding was a trial in this Court in proceeding number S CI 2017 5177: Liu Affidavit, [37]. See also Liu Affidavit [38]-[43].

[9] Exhibit RL-19 to the Liu Affidavit, p 174, lines 28-29; at p 175, lines 1-7.

[10] See paragraph 17(e) above.

[11] [2013] VSCA 158; (2013) 42 VR 27, [35(d)].