Gilmore Finance Pty Ltd v Aesthete Pty Ltd atf the Real Money Unit Trust

Solicitors: Cornwalls (Plaintiff) YPOL (First, Second and Third Defendants) Nelson McKinnon Lawyers (Fourth and Fifth Defendants) File Number(s): 2016/257478

Judgment

1. Between February 2011 and August 2012, the plaintiff, Gilmore Finance Pty Ltd, invested some $7.69 million in development projects relating to two pieces of land purchased by the first and second defendants ("A1" and "A3") in Western Sydney.
2. The first piece of land was a petrol station site at 198 Great Western Highway, Kingswood which was purchased by A1 in April 2010 for $2 million (the "Kingswood Land"). The second was land adjacent to the Nepean Hospital which was purchased by A3 in August 2012 for $7.7 million (the "Hospital Land").
3. A1 and A3 were at all material times trustees of unit trusts that I will refer to as the "Kingswood Trust" and the "Hospital Trust" respectively. The two trusts were established for the purpose of the development of the two properties by construction of multi-storey commercial and residential buildings. Ultimately, neither development proceeded. The properties have now been sold.
4. The sole director of A1 and A3 is the third defendant, Mr Farshad Amirbeaggi. Mr Amirbeaggi is a solicitor and the principal of the firm Yates Beaggi.
5. The decisions of Gilmore Finance to invest were made by its director, Mr Lyle Gilmore. Through other companies, Mr Gilmore had engaged in various activities associated with the mining industry. Those activities were profitable. Mr Gilmore established Gilmore Finance as "an investment arm".
6. The amounts invested by Gilmore Finance were: Date Amount Description 25 February 2011 $1,750,000 Subscription for 25 units in Kingswood Trust 16 March 2011 $1,250,000 Subscription for 5 units in Hospital Trust 22 July 2011 $50,000 Contribution to expenses to A1 30 August 2011 $50,000 Contribution to expenses to A1 26 September 2011 $80,754 Contribution to expenses to A3 7 December 2011 $32,175 Contribution to expenses to A1 25 May 2012 $45,854.55 Contribution to expenses to A1 26 July 2012 $29,766.04 Contribution expenses to A1 8 August 2012 $150,000 Contribution to expenses to A3 8 August 2012 $4,250,000 Subscription for 28 units in Hospital Trust TOTAL $7,688,549.59

1. The fourth and fifth defendants, Ms Vashti Conway and Ms Kate Yates held units in the Kingswood and Hospital Trusts. They are the wives of Mr Amirbeaggi and Mr Amirbeaggi's then business partner, Mr Brenton Yates.
2. Gilmore Finance alleges it made its investments as a result of representations, said to be misleading or deceptive for the purposes of s 18 of the Australian Consumer Law, [1] made to Mr Gilmore by Mr Amirbeaggi, as director of A1 and A3. Gilmore Finance alleges some of those representations were made by Mr Amirbeaggi himself, and others on his behalf by Mr Christopher Wayman, Mr Graham Armstrong and Mr Adam Hollioake. Gilmore Finance contends that, but for those representations, it would not have made the investment: a "no transaction" case.
3. Gilmore Finance makes other claims concerning the manner in which A1 and A3 conducted the Kingswood and Hospital Trusts, which claims only arise for consideration if it fails to make out its primary "no transaction" claim.
4. As I have said, the proposed development of the Kingswood Land and the Hospital Land did not proceed. A3 sold the Hospital Land in January 2018 for $18 million and paid Gilmore Finance $4 million from the proceeds. A1 sold the Kingswood Land in June 2020 for $3.54 million. No monies were paid from the proceeds to unitholders, although A1 had earlier repaid Gilmore Finance some $215,000.
5. Gilmore Finance claims it has lost the balance of its investment, some $3.5 million, and seeks to recover that loss in these proceedings.

Decision

1. Gilmore Finance has failed to make out any of its claims.
2. The proceedings will be dismissed with costs.

The hearing

1. The hearing took place over seven days between 14 and 24 March 2022.
2. The hearing was conducted with efficiency by all parties. I was greatly assisted by comprehensive written submissions received before and after the hearing. Much of what follows as to the factual background is taken, with gratitude, from those submissions; particularly those made on behalf of A1, A3 and Mr Amirbeaggi, which outlined those matters in helpful detail.

The Kingswood Land

1. On 7 May 2008, A1 entered into an option to acquire the Kingswood Land for a purchase price of $2 million. On 19 June 2009, A1 obtained Development Consent for the redevelopment of the Kingswood Land as a multi storey mixed use residential, commercial and retail development.
2. In April 2010, A1 exercised the option to purchase the Kingswood Land. The purchase price of $2 million was paid by Mr Amirbeaggi and Mr Yates.
3. On 1 September 2010, A1 executed a mortgage over the Kingswood Land in favour of the National Australia Bank Ltd ("NAB"). As I set out below, the loan from the NAB was repaid in full on 25 February 2011, partly from the advance of $1.75 million made by Gilmore Finance on 25 February 2011 that I have set out in the table at [6] above.
4. Thereafter, having obtained a feasibility study in respect of the re-development of the Kingswood Land in accordance with the Development Consent, Mr Amirbeaggi sought to locate parties who would be interested in investing in the re-development of the Kingswood Land in conjunction with A1.
5. Between November 2010 and February 2011 Mr Amirbeaggi received a number of offers from third parties to invest in the development of the Kingswood Land.

The Hospital Land

1. On 4 August 2009, A3 entered into a call option deed in respect of the Hospital Land for a purchase price of, relevantly, $7.7 million.
2. On 3 August 2011, A3 exercised the option to purchase the Hospital Land. Ms Conway and Ms Yates paid the 10% deposit of $770,000.
3. On 17 August 2011, the Department of Planning granted a development consent, subject to conditions, on the Hospital Land for a multi-storey mixed use development.
4. A3 completed the purchase of the Hospital Land in August 2012, in the circumstance I discuss below.

Mr Wayman

1. Mr Christopher Wayman played a major, and highly discreditable and dishonest role, in the events that have led to these proceedings.
2. Although his role in persuading Mr Gilmore to cause Gilmore Finance to invest in the Kingswood Trust and the Hospital Trust was pivotal, neither Gilmore Finance nor A1 and A3 called him to give evidence in the proceedings.
3. On behalf of Gilmore Finance, it was submitted that it was for the defendants to call Mr Wayman and that I should infer from their failure to do so that Mr Wayman could not assist their case. That submission was not pursued orally, although it was revived on written submissions received after judgment was reserved. I do not accept it. It is true that, in response to a question from me, Mr Amirbeaggi said he had spoken to Mr Wayman during the course of these proceedings and following Mr Armstrong's evidence. However, such implications as might arise from that fact were not explored in cross-examination by Mr Marshall SC, who appeared with Mr Aspinall and Mr Arnold for Gilmore Finance. [2] For the reasons I set out below, my conclusion is that Mr Wayman did make misleading statements to Mr Gilmore but that Mr Amirbeaggi did not authorise them and did not know of Mr Wayman's dishonesty until June 2011. However, I find Mr Wayman's absence as a witness to be neutral. Neither side could reasonably be expected to have called him.
4. Mr Wayman enlisted the assistance of Mr Armstrong to persuade Gilmore Finance to invest. Gilmore Finance called Mr Armstrong to give evidence in its case. Mr Armstrong's evidence was critical for Gilmore Finance's "no transaction" case, as it was to the effect that Mr Amirbeaggi, along with Mr Wayman, importuned Mr Armstrong to misrepresent to Mr Gilmore the level of investment in the Kingswood site project (the "Kingswood Project"). For reasons set out below, I do not accept Mr Armstrong's evidence on that, or indeed, any matter; save for his own admitted dishonest conduct vis-à-vis Mr Gilmore.
5. Another person who played a less clear role in causing Gilmore Finance to invest was Mr Adam Hollioake. Neither party called Mr Hollioake. No submission was made on behalf of Gilmore Finance that any inference adverse to A1, A3 and Mr Amirbeaggi thereby arose.

The course of events

1. Mr Amirbeaggi first met Mr Wayman in early 2009 when Mr Wayman retained Yates Beaggi to provide legal services not related to these proceedings.
2. In mid-2010, Mr Wayman approached Mr Amirbeaggi and Mr Yates "seeking to meet to discuss … business affairs, and need for provision of legal services".
3. Mr Amirbeaggi met Mr Wayman over lunch on 16 July 2010.
4. Mr Amirbeaggi said [3] they had this conversation: "Mr Wayman: I have a management team, and a group of investors ranging from individuals of high net worth to local and overseas investment funds. My group will purchase, joint venture, or take over any business opportunities, and all sorts of property development. Can you and [Mr Yates] let me know if you come across any opportunities? My group will take care of the entire project from funding, marketing, management, construction, to realisation. We're already doing a lot of projects here and overseas. We're setting up a bank in New Zealand at the moment. Doing property deals across Australia. We've got a global solar panel company in China and are setting up Real Estate Investment Trusts in Australia, Hong Kong, and Manhattan originated out of the PRC. Mr Amirbeaggi: Sure, I'll let you know what we come across from time to time. We're busy ourselves at the moment with two projects west of Sydney that are real estate developments. We're going through the search for a property developer or builder to partner with one of them. Seems the profit on that one is worthwhile. Nothing like what you're involved in though. The other one is in planning. That one appears to have pretty decent profits too, but to be honest is likely out of my and [Mr Yates'] league if approved. It's something we're hoping to put a ribbon around and pass onto a large developer. It's literally next door to Nepean Hospital so hopefully it's someone in the medical space, like the private hospital next door. We're close to JV on the smaller one. The larger one still has quite a bit of work to do. The larger one is pretty significant for the local area and is being pursued as a Major Project with the Department of Planning. We've been looking for a partner on the smaller one that's 'value add' and lets us get on with life and practice whilst it's managed and build. Mr Wayman: Can my group have a look at those? We can get involved, and if the numbers are right, can make them happen for you. Can I also have you and [Mr Yates] do the legal work for my group? We need to set up new structures and put in place agreements with various people we do deals with all the time."

Commitment to Kingswood

1. On 7 February 2011, under the heading "Funds Transfer", Mr Amirbeaggi wrote to Mr Wayman: "Just need the break up of the units - our document is ready for execution."
2. Thereafter, also on 7 February 2011, Mr Armstrong telephoned Mr Amirbeaggi and said: "For this project our group will include 1. Me as Graham Armstrong, 2. Adam Hollioake, 3. Lyle Gilmore, and 4. Desirecorp Pty Limited as trustee for Lyndal Wayman. [6] We're going to do it through a trust, Great Western Highway Pty Limited. We'll set that up now. It can hold 50% of the units in your trust that owns the site. Can you send me an agreement for sale of the units please?"
3. Later on 7 February 2011, at Mr Armstrong's request, Mr Amirbeaggi drafted and sent to Mr Wayman and Mr Armstrong a draft agreement between A1 and the company to which Mr Armstrong referred, whose full name was 182-190 Great Western Highway Pty Limited ("GWH"). I will call this document the "GWH Unit Subscription Agreement".
4. From 7 February 2011 Mr Armstrong was the only director and shareholder of GWH. [7] It appears that his and Mr Wayman's plan was that GWH would be engaged as project manager of the Kingswood Project and would employ Mr Wayman to do the actual project management work.
5. The draft GWH Unit Subscription Agreement provided that: 1. A1 would by 1 March 2011 [8] issue to GWH, as trustee of the GWH Unit Trust, 100 units in the Kingswood Trust; [9] 2. in consideration for which GWH would pay A1 $175,000 "by way of a non-refundable deposit" and thereafter $1,575,000 upon Completion" on 1 March 2011; [10] and 3. the parties would negotiate in good faith and execute a "Unitholders' Agreement" [11] showing that GWH held 100 units in the Kingswood Trust, being 50% of all the issued units in the Kingswood Trust. [12]
6. Mr Amirbeaggi's email to Mr Wayman and Mr Armstrong read: "Please review the attached, and execute and return at your leisure. The company described as 182-190 Great Western Highway Pty Limited has been incorporated with Graham [Armstrong] as the sole Director/Secretary and holder of the 2 shares issued. The company is trustee of the GWH Unit Trust. There will be a separate Unit Trust Deed for you to execute, but the Unit Holders are 25 units to each of the following: 1. Graham Armstrong; 2. Adam Hollioake; 3. Lyle Gilmore; and 4. Desirecorp Pty Limited ATF Lyndall Wayman Happy to discuss any part of it. I'll send the Unit Trust Deed in the next 5 minutes."

The site visit

1. At some time prior to 15 February 2011 Mr Wayman telephoned Mr Yates and said: "I'll be down in Sydney with the group who have invested in the Kingswood Project. They want to see the site and meet you and Farshad. I will also need to come and see Farshad."
2. On 15 February 2011 Mr Yates sent an email to Mr Wayman and Mr Amirbeaggi headed "Run Sheet for today/tomorrow". He said, under the heading "Tomorrow": "9.00am - leave Sydney CBD for site inspections at Kingswood (2 hours) 1.30pm - lunch in Sydney CBD Brooke can you please book lunch (Glass - close in case we are running late) and arrange a 5 seater hire car - collect today if need be - so he can drive out to Kingswood tomorrow."
3. Mr Yates had asked Mr Amirbeaggi's personal assistant, Ms Brooke Maniscalco, to "arrange a 5-seater hire car" as he understood that those engaging in the "site inspections at Kingswood" would be Mr Wayman, Mr Armstrong, Mr Hollioake and Mr Gilmore. Mr Yates said it was his understanding that neither Mr Amirbeaggi nor he would be attending the site inspection.
4. Thus, Mr Amirbeaggi and Mr Yates had this conversation: "[Mr Yates] I've received a call from Wayman. He wants to do a site inspection of Kingswood with his group. Why do we need to go to Kingswood with him and his group? They've already bought into the project. Why can't they just go out to Kingswood and have a look around themselves? [Mr Amirbeaggi] I agree, we don't. They can go and spend as much time there as they want. Surely Chris has already been out there to inspect it. Go and arrange it on the basis that we are not going. We can meet them here in Sydney before or after they visit it, probably better after they have. We've got too much work on to waste a day out at Kingswood."
5. Mr Amirbeaggi and Mr Yates decided to attend the site visit after Mr Wayman called Mr Amirbeaggi and said: "It's hard most times trying to get in to see you cause you're so busy so if you two can come along it would be good to have your company. And you're going to be doing a development with this group over the next 2 years, so it might be polite to come along."
6. Mr Amirbeaggi then said to Mr Yates that "if I have to go, I'd like you to come too", whereupon Mr Yates arranged for a minibus, rather than a 5-seater hire car, to be arranged to facilitate the visit.

Mr Armstrong's admission of participating in a fraud practised on Mr Gilmore and his evidence as to conversations with Mr Amirbeaggi following the site visits

1. Mr Armstrong, called in Gilmore Finance's case, admitted that he had falsely represented to Mr Gilmore that he and Mr Wayman had invested $1.75 million in the Kingswood Project.
2. That is, he admitted he was party to a fraud practised on Mr Gilmore.
3. He asserted that he had done this at the bidding of both Mr Wayman and Mr Amirbeaggi. [16] This is pivotal evidence in Gilmore Finance's case. It has called an admitted fraudster to prove its case against Mr Amirbeaggi; that Mr Amirbeaggi himself engaged in fraud.
4. Mr Armstrong said that, at around this time, he had "several" telephone conversations with Mr Amirbeaggi in which Mr Amirbeaggi said words to the effect: "We need to get Lyle to invest in the Kingswood Project or it will fall over."
5. Mr Armstrong also gave evidence that after the site visit on 16 February 2011, Mr Amirbeaggi said to him words to the effect: "Lyle should not know that you and Chris have only put in $175,000." "You need to speak to Lyle to get him to invest $1,750,000 for a 25% share." "Lyle should not think he is the only one putting in cash." "Lyle needs to think that all the investors are contributing on the same basis."
6. Mr Amirbeaggi denied saying any such thing. I am not persuaded that I should accept Mr Armstrong's evidence that Mr Amirbeaggi said anything to this effect.
7. I explain this conclusion further below. But one reason is that I do not accept that Mr Armstrong has any clear recollection of what Mr Amirbeaggi said at around this time.
8. Mr Armstrong's affidavit was made on 8 October 2021. Mr Gilmore's solicitors had approached Mr Armstrong as early as 2018 to give a statement for the purpose of the proceedings.
9. In October 2020, Gilmore Finance's solicitors served an "Outline of Prospective Evidence of Graham Armstrong" that evidently set out the evidence that Gilmore Finance's solicitors then anticipated Mr Armstrong would give.
10. That "Outline of Prospective Evidence" is not in evidence before me.
11. In August 2021, Mr Gilmore contacted Mr Armstrong directly to enquire whether he would be willing to provide a statement for the purposes of the proceedings. This led to the preparation of Mr Armstrong's 8 October 2021 affidavit.

Completion of investment in the Kingswood Land

1. On 18 February 2011, Mr Amirbeaggi sent an email to Mr Wayman: "I've told NAB we are aiming for a settlement next Friday [25 February 2011] … Let me know if we are able to complete any earlier. We only have to give NAB 48 hours notice."
2. On 22 February 2011, Mr Wayman wrote to Mr Gilmore under the heading "Kingswood Petrol Station Site": "I am glad to have you on board for both the sites. We have a long [and] successful future on these and many other sites together, I am looking forward to the journey with you. Following from the discussions regarding the equity for the petrol station site please see below:  Kingswood Petrol Station (182 Great Western Highway, Kingswood) 18 Month Project Time frame (approx.) o The people that are in this deal are Lyle, Farshad, Brenton, Chris, Adam, Graham o We have put in $1,750,000 for the site and are also going as the guarantors for the construction facility ($10,500,000) You will not have exposure for the construction facility liability. o Your Equity Required $1,750,000 for your equity you will be provided with shareholding in company that owns the site of 25% (ROI - 100% return approx on your funds in 18 months) All parties will stay in the transactions together for the duration of the projects until completion."
3. This email contains a number of false statements.
4. First, it was not true for Mr Wayman to say that "we have put in $1,750,000 for the site". Nor was it true for Mr Wayman to say "we" are "also going as the guarantors for the construction facility". Nor did Mr Wayman have any basis to say that the "ROI", that is, presumably, return on investment, would be "100%"; apart from, perhaps, the very high level figures Mr Amirbeaggi had given him during 2010. There is no suggestion in the evidence that Mr Amirbeaggi authorised Mr Wayman to tell Mr Gilmore that he would, in effect, double his money in 18 months.
5. In the email, Mr Wayman said to Mr Gilmore that "Your Equity Required" was also $1.75 million. At the conclusion of his email, Mr Wayman asked Mr Gilmore to send the $1.75 million to Yates Beaggi's trust account and provided details of that account.
6. Mr Amirbeaggi said that he did not see this email until after these proceedings were commenced; and that he did not ask Mr Wayman to send the email.

Investment in the Hospital Land

1. In the meantime, on 28 February 2011, Mr Wayman telephoned Mr Amirbeaggi. They had this conversation: "[Mr Wayman]: Lyle Gilmore would like to take up a 5% investment in the Hospital Site. I've spoken with him about the present feasibility values, and that with a complete pre-sale campaign it will increase. I've told him my group is looking to acquire it from you and develop it through my Chinese contacts, and this is an early entry for him into the development, which is only going to increase in value with the work me and my group are going to do on it. He wants to take up a 5% share based upon the $25mil val shown in the feasibility and pay $1.25mil. Are you able to take up his investment as one of my clients in your project, or do you want to wait until I take out the site from you and then I'll include him in my group?". [Mr Amirbeaggi]: We can have him purchase a 5% interest, however, on two conditions. Firstly, if he buys in now and then you acquire the site for the assignment fee of $15mil plus GST we've been talking about, then his 5% interest of that margin net of the cost of the underlying land is only $750K, so you'll have to take him across with your group so he gets a return on his investment, and secondly we won't validate any purchase until the consent is issued because until we have that it is nothing but an option with potential i.e. there won't be any life in value, and if we don't get the consent, then he'll have a loss. So, if he wants to do it, we are happy to do it, but his funds have to remain in an interest-bearing account, and the purchase only becomes effective once we have the consent, and then if you take out the site you agree either take him across with your group or refund his money. We can incorporate that condition at the time you approach for a take-out, but he is your client so you will need to manage that part. If we aren't issued the consent, then his money with interest earnt is returned to him i.e. assuming you don't take the site out his purchase of a 5% interest is conditional upon obtaining the consent. Does that all make sense? We would be happy to proceed on that basis. [Mr Wayman]: Yes I understand what you mean and will discuss all that with him."
2. Several days later, on 3 March 2011, Mr Wayman sent a further email to Mr Gilmore concerning the "Kingswood Hospital Site" in which he repeated the falsehoods in his 22 February 2011 email. Again, Mr Amirbeaggi said he did not authorise Mr Wayman to send this email and did not know of its contents until after the commencement of these proceedings. This email read: "Great to catch up, this morning as mentioned Adam is in this deal and so are the other members of the team that you have already met. Following from the discussions regarding the equity for the Hospital site please see below:  Kingswood Hospital Site (11 Barber Ave, Kingswood) 42 Month Project Time frame (approx) o The people that are in this deal are as follows Lyle (5%), USA JV Partner (50%), Farshad, Brenton, Chris, Adam, Graham (45%). o We have already put in $5,000,000 for the site and are also bringing a further $12,500,000 into the project (totally $17,500,000) in order to reach a 50/50 JV with our USA JV Partner on this project who has already committed their funds for their 50%. We will also be guarantors for the construction ($85,500,000 staged construction). You will not have exposure for the construction facility liability. o Your Equity contribution will be $1,250,000. For your equity you will be provided with shareholding in the company that owns the site of 5% (ROI - 100% return approx on your funds in 42 months). The payment in from you will be held in an interest bearing account under the control of Yates Beaggi Lawyers, and only taken once the site is approved by the Department of Planning in the nature of the Application that has been lodged (with say a 10% variation in layout/measure/design). We are expecting approval in the next 5 to 8 weeks, and then completing on the project. If the site is not approved by the State Govt as planned, your funds will be refunded to you with the interest earnt on it over that period. All parties will stay in the transactions together for the duration of the projects until completion. We will also facilitate the project management and sale for the developments, ensuring risk management, timely management and execution. Completed project management reports will be provided on a monthly basis and we will also organise several site visits during the project."

Appointment of DevCom as project manager

1. It was a term of the Unit Subscription Agreement made between A1 and GWH on 7 February 2011 that the parties agreed to negotiate in good faith and to complete a unitholders' agreement, one of the terms of which was to appoint Mr Wayman as project manager to manage the Kingswood Land project at a renumeration of $125,000 per annum.
2. In this context, on 29 March 2011, Mr Yates sent to Mr Wayman by email a draft consultancy agreement between A1 and DevelopmentCom Pty Ltd ("DevCom"), a company associated with Mr Armstrong, in respect of the development of the Kingswood Land. That document was executed on behalf of DevCom by Mr Armstrong and returned to Mr Amirbeaggi on the same day.
3. Pursuant to that agreement DevCom agreed to provide A1 with Mr Wayman's project management services.
4. Evidently, Mr Wayman did perform some work in the nature of project management for the Kingswood Land.
5. Thus, on 5 April 2011, Mr Amirbeaggi wrote to Mr Gilmore and Mr Camilleri: "By way of update on the development at 182-190 GWH, Kingswood, I note Chris Wayman as Project Manager has carried out the following tasks since initiation ie over the last 4 weeks: 1. Engaged us to prepare Contracts for Sale of the 36 Pre-Sale Apartments; 2. Appointed 3 selling agents to start the pre-sales program; 3. Registered the URL for the website for the development; 4. Completed marketing materials including sales display/schedule of finishes boards; 5. Engaged [Yates Beaggi Lawyers] to draw the form of construction contract; 6. Worked with the Architect and Engineer to turn out all of the Construction Certificate documentation, so as to tender out the building works for comparative quoting; 7. Progressed and obtained the Construction Certificate for demolition of existing structures, excavation of tanks, and hoarding of site; and 8. Engaged [Yates Beaggi Lawyers] to complete the Unit Holders Agreement. We expect that over the following 4 weeks the demolition and hoarding of the site will be undertaken/completed, and the pre-sale campaign significantly progressed."
6. Similarly, on 21 April 2011, Mr Wayman wrote to Mr Gilmore, Mr Amirbeaggi, Mr Armstrong and Mr Hollioake, among others, under the heading "Kingswood Project Update" and setting out detailed notes to "update you all regarding our progress" including that: 1. "The contracts for sale of the 36 Pre-Sale Apartments has been completed"; 2. "We have 6 potential purchasers we are already working with"; 3. He had "[c]ommissioned and received Dilapidation report & Traffic Management report required by council to start demolition".

The Kingswood Trust Unitholders' Agreement

1. By 12 May 2011, both GWH and Gilmore Finance had executed the Kingswood Trust Unitholders' Agreement.
2. That document showed the unitholders in the Kingswood Trust to be: 1. GWH as to 25 units; 2. Gilmore Finance as to 25 units; 3. Ms Yates as to 17.5 units; 4. Ms Conway as to 17.5 units; and 5. Mr Vaughan Williams [20] as to 15 units.
3. This document reflected an implementation of Mr Camilleri's advice that Gilmore Finance have a direct 25 unit interest, reflecting its $1.75 million investment in the Kingswood Trust, rather than an indirect interest through the GWH Trust.
4. There are terms of the Kingswood Unit Trust Unitholders Agreement that are relevant to a number of the matters Gilmore Finance seeks to raise, assuming it fails in its "no transaction" case. I will return to the relevant terms when considering those matters.

Discovery of Mr Wayman's misrepresentations

1. On 29 April 2011, Mr Camilleri sent an email to Mr Amirbeaggi making a number of enquiries about the Kingswood Land and the Kingswood Trust. These enquiries may have arisen from the confusion Mr Gilmore expressed in his email of 9 March 2011.
2. Mr Amirbeaggi replied on 1 May 2011.
3. One of the enquires made by Mr Camilleri was: "There are some clauses dealing with the non-subscription of $ for units. I understand Lyle has already forwarded his subscription, so I assume all others have too so such clause would appear unnecessary."
4. Mr Amirbeaggi replied: "Correct".
5. Another enquiry made by Mr Camilleri was: "If 25% equates to $1.75m, then the total subscription is $7m, how is the project funded, and should the trustee be given approval to raise funds to a certain threshold or is that canvassed elsewhere?"
6. Mr Amirbeaggi replied: "Total subscription should be noted at $7mil".
7. The second of these responses, but not the first, is relied on by Gilmore Finance as constituting a representation by Mr Amirbeaggi that $7 million had in fact been subscribed for units in the Kingswood Trust. I return to this below.
8. Mr Marshall asked Mr Amirbeaggi about his state of mind on 1 May 2011 as to the investment in the Kingswood Trust. Mr Amirbeaggi said: "I knew that Gilmore Finance have paid in 1.75 and Great Western Highway had not paid in 1.75 and the Mr Gilmore knew those two facts, that he had paid and that Great Western Highway had not paid."
9. Mr Amirbeaggi then gave this evidence in response to questions from me: "Q. What was your state of mind on 29 April 2011 as to Mr Gilmore's knowledge of other investors in the Kingswood Trust? A. I understand that he had invested 1.75 million. That Conway & Yates were the owners of the site originally so they had transacted a $3.5 million figure. And that Great Western Highway comprising of Hollioake, Wayman and Armstrong had not paid money in because they had [been] putting the deal together and doing the work in relation to it, and meeting expenses, that's what my understanding was. Q. You tell me what you thought, Mr Gilmore knew or what do you? A. That's what I understood, Mr Gilmore knew. Q. You recall by what means you had that understanding about Mr Gilmore's understanding as to … Wayman, Armstrong and Hollioake? A. My understanding of Mr Gilmore's understanding was from what I had been told by Mr Wayman and by Mr Armstrong. Q. What had they told you? A. What - they told me that their deal with their passive investor, Mr Gilmore, was that he would invest $1.75 million and he would have a return on that investment at, I think initially that he would double his money and then that he had a 25% interest in the A1 Trust. Q. Are you telling me that Armstrong or Wayman told you that they'd told Mr Gilmore he'd double his money? A. That's what I had been told. Q. When were you told that? A. I was told that in February and I think in March and then dates after that."

The 21 July 2011 meeting

1. On 21 July 2011, Mr Amirbeaggi met with Mr Gilmore, Mr Armstrong and Mr Hollioake at the Novotel Airport Hotel in Brisbane.
2. When Mr Amirbeaggi arrived, only Mr Gilmore was present. Mr Armstrong and Mr Hollioake arrived after. Mr Armstrong said that Mr Wayman "is a liar and has taken off".
3. Mr Amirbeaggi gave this account of the conversation that took place at the meeting: "[Mr Amirbeaggi] Gents, Brenton and I have no idea what has gone on amongst your group, however whatever has happened is affecting us, and we're not interested in it. We just wanted to see the property developed, and it's being disrupted by your side of the investment. Can we please talk about what has happened, so we can resolve it, and progress the development? [Mr Gilmore] I'm here to resolve it, and I want some answers from you two. [this statement was directed to Graham and Adam] [Mr Armstrong] We're sorry Lyle. We've taken full advantage of you with everything we've done. We just got caught up in the numbers and the excitement of making money, and we were dishonest to you. We've done the wrong thing. And we want to fix it. We're here to do whatever it takes to make it right. And Farshad, we're sorry we've brought you and Brenton into this as well and wasted your time and been dishonest to you two. You've been absolute gentlemen to us, and we've just taken advantage of that. [Mr Gilmore] Have you two put any money into the deal, or are you just riding off the back of my money? [Mr Armstrong] Apart from putting in some money to meet some expenses, no we haven't put money into either investment. I don't know what to say Lyle. We just made a mistake and will do whatever it takes to fix it. [Mr Hollioake] And Lyle, I'm really sorry too. And to you Farshad. This has just been a disaster for me, and I don't know how I got caught up in it. You've been really good to me in my life Lyle, and change of career, and supporting me, and I've done the wrong thing by you. We'll do anything to fix it. [Mr Gilmore] Well how do you two see it being fixed? The way I see it, you guys shouldn't be involved in these deals. I've put the money in, so I should be in them without you. [Mr Amirbeaggi] You're only involved in Kingswood with the gents, not [the Hospital Project]. These gents aren't involved in [the Hospital Land]. For [the Hospital Project] you are in there as an independent investor on your own. [Mr Gilmore] That's news to me. I thought you blokes had put significant amounts into [the Hospital Project]? But at least that's simplified that one. [Mr Armstrong] That's fine Lyle. We are happy to do as you want. We can transfer the 25% share that GWH has in Kingswood across to you. Can I ask though that you repay to us the amounts we have paid in to meet the expenses? That would really help me because I've gone out on a limb without Adam and Chris to pay that money, which I've borrowed from other people, and I really need it back. [Mr Gilmore] I'm fine with that. Just let me know how much we are talking about, and I'll fix that up, and then me and the boys will complete the project without you. Are you ok with all of that Farshad? [Mr Amirbeaggi] None of this is ideal from our point of view. Quite apart from a horrendous start to a relationship, part of the joint venture was for your group to look after the project management and presales. That was your value add. We've lost the benefit of that and had we known any of this we wouldn't have gone anywhere near it. We had a lot of people interested in a joint venture and turned them away because they didn't provide a value add, and you guys gave us the pitch. But we are now here, and it is what it is. As long as we have cleared the air, there are no more surprises, we are all clear on where we stand, and on the same page in terms of how this goes forward, Brenton and I can look after what we need to in order to progress the development. We'll have to just pay people to fill the roles when we need them. I'm here to learn about what's happened and resolve whatever it is so it stops affecting me and Brenton, so I'm at the very least glad we now know what's been going on. [Mr Gilmore] You won't have any problems with me. I don't want to be involved in any of the day to day or how we get there. I just want to get there. I'll let you and Brenton do what you guys do, and I'll provide whatever you need when you need it. [Mr Armstrong] That's what we will do then. We'll transfer our 25% to Lyle, and exit from the project, and if Lyle you can repay me the amounts I've paid in whenever you can then that would assist me greatly. [Mr Amirbeaggi] Okay then. I'll send some emails when I return to the office to confirm what we have agreed, and the position regarding the transfer of units, and then we'll progress it all from there. [Mr Gilmore] Graham, we'll need to discuss what's happening in Western Australia, and whether any of this involves what's going on over there. [Mr Armstrong] Yes Lyle. We'll have a discussion about that. It doesn't involve Farshad and Brenton, so let's have a talk about that later on."

Development consent for Hospital Land

1. On 17 August 2011, the Department of Planning gave development consent for the Hospital Land.
2. On 22 August 2011, Mr Amirbeaggi wrote to Mr Gilmore: "Given with the approval you are now a Unit Holder I provide you with some further detail concerning the development, present status and planning for progression of it."
3. Mr Amirbeaggi attached a feasibility study which predicted a potential profit in the order of $37.65 million and stated that he anticipated that A3 would exchange contracts to purchase the Hospital Land for $7.7 million in the next few days.

Execution of the Hospital Land Unitholders' Agreement

1. Some six months later, on 22 February 2012, Mr Amirbeaggi telephoned Mr Gilmore. Mr Amirbeaggi's account of the conversation was: "[Mr Amirbeaggi]: Would you consider participating in [the Hospital Land] with me and Brenton with a greater share, but on Stage 1 only? We're thinking about a takeout of our existing Unit Holders in the trust, most of whom have lost interest in the project after 3 years of trying. We're looking to modify Stage 1 and make it a better mix of uses, and a better site. … There'll be a large pay-in for 50% on $15m though. If you want to do it, we'd leave the $750k you've already paid for 5% in Stage 1 in there, and you'd need another $6.75m for the 45% top up. If you don't want to do 50% we can reduce it, and offer you less, say 25%, or 33%, and the rest to one of the parties who are presently interested in a JV, or even some of the doctors who want to take up space. Have a think about it and let me know in due course. [Mr Gilmore]: That sounds interesting to me, and yes I can participate in that. Please let me know what you need from me to be involved. [Mr Amirbeaggi]: I'll do some work on it, and send you a note, and we can talk it out from there."
2. Following the conversation, and also on 22 February 2012, Mr Amirbeaggi sent Mr Gilmore an email which included: "What I mentioned before for [the Hospital Land] to think over: Brenton/Me/You buy out group on Stage 1 for $15m. We believe the group will sell Stage 1 for that. 50/50. Money distributed to Unit Holders, and we hold site unencumbered approved for …".
3. Mr Amirbeaggi's email also set out rough calculations as to gross realisations for the Hospital Project (predicted to be $114.5 million) and expected outlays (expected to be $75 million), producing a projected margin of $40 million, that could be split equally: "$20mil you and $20mil us".
4. Sometime later, Mr Amirbeaggi asked Mr Gilmore: "What do you think about the Stage 1 proposal?"
5. Mr Gilmore answered: "I am definitely in, but I can't take up 50% at the moment with other commitments. It will leave me too skinny if I go for 50%. I will come in at 33% though."
6. Following this, on 23 April 2012, Mr Amirbeaggi wrote to Mr Gilmore: "We can give you a total holding of 33% ie increase your 5% by another 28% - it puts you at 33%, me at 33% and Brenton at 33%. You've put in $1.25mil. $750K of that was for Stage 1. If you throw in $4.25mil - with us taking into account your $750K for Stage 1 - then you are at 33%."

Advance by Gilmore Finance of final $4.25 million - Gilmore Finance loan $2.25 million

1. In July 2012, Mr Amirbeaggi and Mr Yates were involved in a subdivision at Blaxland, unrelated to the Kingswood or Hospital Projects.
2. On 11 July 2012, Mr Amirbeaggi sent Mr Gilmore an email: "We've hit a snag on one of our subdivisions which is going to cause delay in getting the $2.4mil out of it by August. Give me a call to discuss when you are free."
3. Mr Amirbeaggi and Mr Gilmore then had this conversation: "[Mr Amirbeaggi]: We're experiencing delay in having the subdivision certificate issued by the Council, and until the Council releases it we can't settle on the presold subdivided lots. We've got 4 lots there and 3 presold. It's about $3 mil of land, and $1.5 mil in presales being held up. With the time now left, Brenton and I will be short on the amount he and [I] were going to kick in on the settlement of [the Hospital Land] to settle it without debt. He and I need to kick in about $2.5mil to make up the gap for the settlement of [the Hospital Land]. We'll have to go to the bank to raise that. Before I go through that process, you've mentioned lending through Gilmore Finance before. Do you want to lend it through Gilmore Finance on market terms, rates, and conditions? Registered first security and all that usual stuff? I reckon we'll need it for about 12 weeks until the plan registers and we get the presale money in. [Mr Gilmore]: Yes please, Gilmore Finance can do that no problem. Do you want to send me some paperwork to sign, and then I'll fund the loan? [Mr Amirbeaggi]: Sure. Thank you. We'll draft up the documentation and email it through. We'll give you security over the presold lots, and our units in the trust ie security isn't a problem."
4. Mr Gilmore did not dispute this conversation, but said that he could not recall it. It seems likely the conversation did take place as Mr Gilmore followed the matter up in an email of 31 July 2012: "Where you at with paperwork for the money / loan we are to send you? Not trying to push it along, just letting you know we are good to go when you are".
5. Later on the same day, 31 July 2012, Mr Amirbeaggi wrote to Mr Gilmore enclosing material concerning the Hospital Land, and stating under the heading "Funding Requirements": "5. Your 33% share requires a funding contribution of $4.25mil. In addition to that there is stamp duty payable of circa $450,000.00. On a 33% share that equates to $150,000.00. On that basis you are required to contribute funding of $4.4mil. 6. Owing to our buy out of Williams from the [Kingswood Land], a delay in registration of a subdivision of land and settlement of sales in Blaxland, and the purchase of our office space in Bridge Street, Brenton and I are (as discussed) short of funds coming to completion. 7. Our ideal position would be to advance a sum of $3mil from Gilmore Finance - repayable within 6 months, with a rate of interest at 8% per annum. Whilst I know we have discussed the matter, and how it will be addressed in terms of recording it, what we propose is that the shareholding/unit holding remain the same, and Brenton/I advance the $3mil on normal loan terms, and repay that sum to you from the Blaxland settlements, and other funding as it becomes available in that 6 month term. The loan advance will be secured against our interest in the [Kingswood Land, Hospital Land], and over the Blaxland subdivision. Please let me know that you are content with what we propose so I can draw the loan agreement. 8. The upshot of it is a request for $4.4mil plus $3mil from you ie $7.4mil (with $3mil repayable within 180 days)."

Repayment of the Gilmore Finance loan

1. A3 repaid the Gilmore loan in full by September 2015, with interest.
2. The loan was not repaid within the initial six-month period. However, extensions were granted.
3. The loan was repaid by Ms Conway and Ms Yates meeting their obligations under the 2012 Unit Subscription Payment Agreement as follows: 1. $450,000 on 29 October 2012; 2. $300,000 on 7 December 2012; 3. $300,000 on 3 September 2015; and 4. $1.2 million on 11 September 2015.
4. Mr Amirbeaggi's evidence about these repayments was contained in an affidavit made on 8 March 2022, shortly before the commencement of the hearing.
5. In closing submissions, Mr Marshall pointed out that although Mr Amirbeaggi's evidence was given by reference to nominated entries in bank statements, his evidence as to the source of the funds was evidently from his memory and not from objective documentary material. Nonetheless, Mr Marshall did not object to, nor challenge the evidence. I see no reason not to accept it.

A1's borrowing from Ares Capital Management Pty Ltd

1. On 8 September 2015, A1 borrowed some $1.725 million from Ares Capital Management Pty Ltd.
2. Gilmore Finance alleges that this was a borrowing that was not authorised under the 12 May 2011 Kingswood Trust Unitholders' Agreement.
3. I will deal with the facts surrounding this transaction below when dealing with Gilmore Finance's contentions as to Unauthorised Transactions.

A3's borrowing from Perpetual Trustee Company Ltd

1. On 23 December 2016, A3 borrowed $3 million from Perpetual Trustee Company Ltd as trustee for the Arch Finance Warehouse Trust.
2. Gilmore Finance contends that this borrowing was not authorised by the relevant provision in the 5 June 2012 Hospital Trust Unitholders' Agreement.
3. Again, I will deal with the facts leading to this borrowing when considering Gilmore Finance's contentions concerning allegedly Unauthorised Transactions.

The sale of the Kingswood and Hospital Land

1. As I have set out earlier, on 15 January 2018, A3 completed the sale of the Hospital Land for $18 million. From the proceeds, $4 million was distributed to Gilmore Finance. The same amount was distributed to each of the other one-third unitholders in the Hospital Trust.
2. Finally, again as I have stated, on 11 June 2020, A1 sold the Kingswood Land for $3.54 million. No monies were distributed from the proceeds of the sale to any of the unitholders.

The misrepresentation claims

1. As I have set out above, Gilmore Finance alleges that it made its investments in the Kingswood Project and the Hospital Project as a result of representations made to it by Mr Amirbeaggi as director of A1 and A3, either by himself, or by his agents.
2. In closing submissions, Mr Marshall said: "39. The relevant representations with respect to the Kingswood Project were that each investor in the Kingswood Project would receive a share in the project in proportion to their contribution and the percentage price paid for the units by each investor would be equal … In other words, the unitholders would contribute equally, or 'put the same money in'. 40. The relevant representations with respect to the Hospital Project were as follows: a. each investor in the Hospital Project would receive a share in the project in proportion to their contribution and the percentage price paid for the units by each investor would be equal … Again, in other words, the unitholders will contribute equally, or 'put the same money in'; b. the investors in the Hospital Project were the plaintiff (5%), a US joint venturer (45%) and a group comprising Amirbeaggi, Yates, Wayman, Hollioake and Armstrong (45%) ...".
3. The representations are said to arise from things said by Mr Amirbeaggi during the site visit on 16 February 2011 and, as pressed in final submissions, Mr Wayman's email to Mr Gilmore of 3 March 2011 [31] and Mr Amirbeaggi's 1 May 2011 reply to Mr Camilleri's enquiry of 29 April 2011. [32]

Was Mr Wayman the agent of A1 and A3?

1. In its List Statement, Gilmore Finance alleged that: "15. In order to promote the development of the Kingswood Land and the Hospital Land, [Mr Amirbeaggi], on behalf of [A1 and A3], on a date not known to the plaintiff, but before about 16 February 2011, formally or informally appointed Christopher Wayman … either by himself, or, a company with which he was associated, DevelopmentCom Pty Ltd to: (a) obtain Mr Gilmore to fund the development of the Kingswood Land and to fund the acquisition and development of the Hospital Land …; and (b) project manage the Projects."
2. In closing, Mr Marshall submitted that representations were not only made by Mr Wayman as the agent of Mr Amirbeaggi, but also by Mr Wayman's "two accomplices, Messrs Armstrong and Hollioake".
3. That allegation is not pleaded and I do not propose to take it into account.
4. As Mr Pritchard pointed out in final submissions, the allegation of Mr Wayman's alleged agency is pleaded narrowly.
5. The allegation is that Mr Amirbeaggi appointed Mr Wayman, relevantly, to obtain Mr Gilmore as a funder of the Kingswood Project and the Hospital Project. It is not alleged that Mr Wayman was appointed as an agent to procure or canvass investors generally; [33] let alone to make representations to investors about the level of investment in the projects.
6. In any event, my conclusion is that Mr Amirbeaggi did not appoint Mr Wayman as the agent of A1 or A3 for any purpose.
7. It is true that Mr Amirbeaggi, from time to time, provided Mr Wayman with information concerning the proposed developments.
8. But the communications that I have set out above show that Mr Wayman was, purportedly, acting on behalf of alleged proposed investors in the development, not as a result of any request made of him by Mr Amirbeaggi, but because of an arrangement between Mr Wayman and the alleged investors, particularly Mr Gilmore.
9. At the 16 July 2010 meeting that I have referred to, [34] Mr Wayman said that "I" have a "group of investors", that "my group" will engage in "all sorts of property development". Mr Wayman asked Mr Amirbeaggi and Mr Yates to let him know if they "came across any opportunities". After Mr Amirbeaggi described, in general terms, the Kingswood Project and the Hospital Project, Mr Wayman asked whether "my group" could "have a look at those".

Representations during the site visit - the "Visit Representations"

1. In its List Statement, Gilmore Finance alleged that during the site visit on 16 February 2011, Mr Amirbeaggi made 18 separate representations.
2. As I have said, only five were pressed in final submissions.
3. I will deal with these in turn.

That Mr Amirbeaggi had American investors interested in investing in the Hospital Land

1. As I have set out above, [41] Mr Gilmore gave evidence in chief that he recalled Mr Amirbeaggi saying during the site visit something about investors from the United States, that Mr Amirbeaggi said they were a "big party" and a "joint venture from the USA". Mr Gilmore said that he thought that "Healthscope" may have been mentioned.
2. There is no evidence before me as to whether "Healthscope" is a United States enterprise.
3. Mr Gilmore's evidence was not corroborated by Mrs Gilmore or by Mr Armstrong. It was denied by Mr Amirbeaggi, whose denial was corroborated by Mr Yates.
4. Neither Mr Amirbeaggi nor Mr Yates were challenged about those denials.
5. In relation to Mr Amirbeaggi, Mr Marshall's cross-examination was confined to: "Q. Did you also mention that there was prospect in terms of that investment in money terms? A. No, I didn't. Q. Did you talk about the joint venture partners involved? A. No, I didn't. Q. Did you mention a USA joint venture partner? A. No, I did not."
6. As for Mr Yates, the cross-examination was confined to: "Q. Did he also mention a USA JV partner? A. No."
7. Further, in cross-examination, Mr Gilmore qualified the evidence he had given in evidence-in-chief. Thus, he gave this evidence when asked about the reference in Mr Wayman's 22 February 2011 email to the "JV with our USA JV Partner on this project": "Q. You agree it's possible the first time you'd heard about reference to US joint venture partners was as a possibility in these emails from Mr Wayman? A. I agree that's possible. Q. Do you agree it's possible that, in fact, you didn't hear these words being said about a potential US JV partner for the hospital site at all from Mr [Amirbeaggi]? A. I agree that's possible."
8. On the basis of this evidence, I am not satisfied that Mr Amirbeaggi made any reference to "American investors" being interested in investing in the Hospital Land.
9. In any event, Gilmore Finance does not, in its List Statement, allege that any such representation was misleading or deceptive and does not allege that there were no American investors "interested in investing in the Hospital Land". What is alleged in the List Statement is that "no United States JV partner invested in the Hospital Project".

That Mr Amirbeaggi was a solicitor at the law firm Yates Beaggi, his business partner was Mr Yates and he had undertaken numerous property developments

1. If Mr Amirbeaggi said anything to this effect, it was true.

That the percentage contributions of each investor would be proportionate to the share held in the Kingswood Land, meaning that a 10% share investor would be required to contribute 10% towards the price of the Kingswood Land

1. Mr Marshall did not develop Gilmore Finance's submissions in relation to this alleged representation beyond the passage I have set out at [348] above.
2. To the extent that Mr Gilmore gave evidence in his affidavit about this matter, it was in inadmissible form, was objected to and rejected.
3. Although I granted Mr Marshall leave to adduce evidence-in-chief, in proper form, as to what Mr Amirbeaggi was alleged to have said at the site visit, Mr Gilmore did not give evidence about any representation to this effect.
4. Nor did Mr Armstrong give any evidence to this effect.
5. After I reserved judgment, my Associate made an enquiry of those advising Gilmore Finance for evidentiary references to Mr Amirbeaggi having made any representations to this effect. Submissions in reply made numerous references to the transcript, not one of which constituted such evidence.
6. Mr Amirbeaggi denied making any statement to this effect. His denial was corroborated by Mr Yates. Neither of these denials was challenged in cross-examination.
7. Gilmore Finance has not established that this representation was made.

That each investor would pay a proportionate amount for their respective interests in the Kingswood Project, meaning that if a 1% interest was acquired by an investor for $100, each other investor would pay $100 per percentage point acquired by them

1. For the same reasons, Gilmore Finance has not established this representation.

A similar proportionate investment plan is applied to the Kingswood Land would apply to the Hospital Land

1. For the same reasons, this representation is not established.

No reliance on anything said during the site visit

1. In any event, I am not persuaded that Mr Gilmore relied on anything said during the site visit in making his decision to invest in either the Kingswood or the Hospital Projects.
2. As I set out at [113] above, Mr Gilmore said, in answer to a question from me, that his interest in putting money into either of the projects arose after the site visit and because of things said to him individually by Mr Wayman, Mr Armstrong and Mr Hollioake.
3. However, I accept that this evidence needs to be seen in its context.
4. Mr Pritchard put to Mr Gilmore the account of the site visit given by Mr Amirbeaggi. The following evidence then ensued, leading to my question: "Q. I'm reading what you said to the Court last night. A. Yes, I'm waiting for the gotcha moment. HIS HONOUR Q. Can I suggest that you just listen to the question, wait for the next question and don't anticipate any gotcha moments or anything similar. A. Yes, your Honour. PRITCHARD Q. Just going back to where we were, the gotcha moment, but Mr [Amirbeaggi] did not say to the group at this meeting at the site at Kingswood there needed to be demolition or the structures needed to be demolished and there may be contamination issues? A. To the best of my recollection, he did. Q. He didn't say the development use would be dual purpose, multi-storey commercial and residential? A. To the best of my recollection, he did. Q. What I want to put to you, sir, Mr Wayman was the man who said these things to you, or Mr Armstrong or Mr Hollioake. A. If it wasn't Farshad, Mr Wayman would have been the other one that was talking. Q. So you agree there's a possibility your recollection about Mr Amirbeaggi, Farshad, saying things might, with the passage of time, may be wrong? A. My best recollection, I believe it was Farshad. There was banter between the others of how exciting it was and everything else. But to the best of my recollection Farshad did the presentation - the mini presentation, verbal. Q. But you acknowledge it was possible, in your recollection-- A. Absolutely. Q. --is wrong and Mr Wayman did the talking about-- A. I'll acknowledge that. Q. --these matters which you now recall? A. Yes. If that's what you want. Q. Sir, I just want the honest word. Your best recollection of the truth. It's not a gotcha moment. Do you understand? A. No, I don't. I understand the best recollection of the truth I believe it was - my recollection it was Farshad. Q. Yes, but I'm putting to you and I think you're agreeing but correct me, Wayman could have been the one who was speaking? A. It's possible. Q. It's certainly possible that Armstrong could have been the one speaking? A. No. Q. Mr Hollioake could be the one speaking? A. No. They were more about learning about the project and how exciting it was. So their role in the whole thing was to say what a great opportunity and how great it was. Q. You say 'role', is this part of your hook theory? A. Yes, this is a play, yes. HIS HONOUR Q. I think you told me earlier, I'll just make sure I got this right, that nonetheless your interest in putting money in to either of the ventures arose after the bus trip and because of things said to you by Wayman, Armstrong or Hollioake or a combination? A. Of all. Yes, I spoke individually to all of them. PRITCHARD Q. All three of them? A. Yes. PRITCHARD Q. Separately? A. Yes, separately."

Mr Wayman's 3 March 2011 email to Mr Gilmore - the "Further Representations"

1. The "Further Representations" are said to arise from the statements made by Mr Wayman in his 3 March 2011 email to Mr Gilmore that I have set out at [170] above and are said to be that: 1. investors in the Hospital Project were, as to 5%, Gilmore Finance, as to 50%, an unidentified United States joint venture partner, and as to 45%, a group constituted by Mr Amirbeaggi, Mr Yates, Mr Wayman, Mr Hollioake and Mr Armstrong; 2. the group constituted by Mr Amirbeaggi, Mr Yates, Mr Wayman, Mr Hollioake and Mr Armstrong had invested $5 million into the Hospital Project and would invest a further $12.5 million to match the contribution of the unidentified United States joint venture partner; 3. Gilmore Finance's contribution would be $1.25 million for a 5% shareholding in the company that owned the site with a return on investment of 100% in approximately 42 months; and 4. the $1.25 million invested by Gilmore Finance would be held in an interest-bearing account under the control of Yates Beaggi and only taken once development approval from the Department of Planning had been obtained.
2. For the reasons I have set out above, many of the statements made by Mr Wayman in this email were false.
3. But as I have also set out above, I accept Mr Amirbeaggi's evidence that he did not authorise Mr Wayman to send this email and did not know of it until after the commencement of these proceedings.
4. Further, as I have set out, I am not satisfied that Mr Wayman had any authority of any kind to make any communications on behalf of A1, A3 or Mr Amirbeaggi.
5. Gilmore Finance has thus not established that the representations made by Mr Wayman in this email were made on behalf of any of A1, A3 or Mr Amirbeaggi.
6. In any event, Mr Gilmore did not give evidence that he relied on anything contained in Mr Wayman's 3 March 2011 email in making his decision to cause Gilmore Finance to pay $1.25 million on 16 March 2011 for five units in the Hospital Trust.

Mr Amirbeaggi's 1 May 2011 response to Mr Camilleri's 29 April 2011 enquiry - "the Subscription Representation"

1. This alleged representation arises from Mr Amirbeaggi's response to Mr Camilleri's 29 April 2011 question: "If 25% equates to $1.75m, then the total subscription is $7m, how is the project funded, and should the trustees be given approval to raise funds to a certain threshold or is that canvassed elsewhere?"
2. As I have set out above, [43] Mr Amirbeaggi's response to that question was: "Total Subscription should be noted at $7mil …".
3. Mr Marshall submitted that this response "misleadingly represented" that the other investors had already subscribed for the balance of the total". The effect of Mr Marshall's submission was that Mr Amirbeaggi's response conveyed that $7 million had in fact been subscribed for units in the Kingswood Trust.
4. I do see substance in this submission. Mr Amirbeaggi's response to Mr Camilleri's question was somewhat oblique.
5. However, there is no evidence that Mr Gilmore knew of Mr Amirbeaggi's response to Mr Camilleri's question. There is no evidence that Mr Camilleri forwarded the email to Mr Gilmore or discussed it with him.
6. In any event, as I have set out above, before Gilmore Finance made any further payment in respect to the Kingswood Project, [44] "any ambiguity arising from the above statement … was corrected". [45]
7. Thus, even if Mr Gilmore did know of Mr Amirbeaggi's less than fulsome response to Mr Camilleri's 29 April 2011 enquiry, the question arises as to whether Gilmore Finance can show that it has suffered damage "because of" that response. [46]
8. Where there may be multiple causes of a plaintiff's loss or damage, the plaintiff may succeed if it establishes that the defendant's impugned conduct "materially contributed" to the loss or damage suffered. [47]
9. Thus, in Henville v Walker, McHugh J [48] said, when considering causation under s 82 of the Trade Practices Act 1974 (Cth): [49] "[97] The common law concept of causation recognises that conduct that infringes a legal norm may be causally connected with the sustaining of loss or damage even though other factors may have contributed to the loss or damage. … [106] If the defendant's breach has 'materially contributed' to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage."

Conclusion

1. For these reasons, my conclusion is that Gilmore Finance has failed to establish that Mr Amirbeaggi, as director of A1 and A3, made any of the representations alleged in the List Statement save, perhaps, the "Subscription Representation", and has, in any event, failed to establish that it was misled by any of the representations alleged.
2. Gilmore Finance has thus failed to establish that it has suffered any loss "because of" any representation allegedly made by Mr Amirbeaggi on behalf of A1 or A3.
3. It has thus failed to make out its "no transaction" case.
4. In those circumstances it is not necessary for me to consider the submissions made on behalf of A1, A3 and Mr Amirbeaggi concerning contributory negligence or concurrent wrongdoers.

The under-contribution claim

1. This claim is based on an alleged breach of cl 5.1(c) of the 5 June 2012 Hospital Trust Unitholders' Agreement that, as I have set out above, provided that the unitholders in the Hospital Trust would contribute "the funds required for completion … in accordance with the percentage of their Unit Holding".
2. In its List Statement, Gilmore Finance alleges that A3, Ms Conway and Ms Yates breached that clause by failing to contribute to A3 an equal amount for the purpose of completing the purchase of the Hospital Land.
3. The claim is particularised as follows: "The purchase of the Hospital Land was completed with the aid of the Gilmore Loan [50] and no contribution from [Ms Conway and Ms Yates] … Had [Ms Conway and Ms Yates] contributed cash equally to the amount required to complete the purchase of the Hospital Land [Gilmore Finance] would not have been required to contribute more than one-third of the cost of completion ...". [51]
4. This claim takes no account of what Mr Gilmore agreed, in August 2012, should be done in relation to the provision of funds necessary to enable A3 to complete the purchase of the Hospital Land.
5. As I have set out above, [52] Gilmore Finance, by then being independently advised by Mr Coates, agreed that, notwithstanding cl 5.1 of the Unitholders' Agreement, it would loan A3 $2.25 million to enable A3 to complete the purchase of the Hospital Land. That loan was repaid from the amounts paid by Ms Conway and Ms Yates pursuant to the 2012 Unit Subscription Payment Agreement. [53]
6. Further, by the 5 June 2012 Unit Allotment Agreement, Gilmore Finance agreed to pay $4.25 million for 28 units in the Hospital Trust, giving Gilmore Finance a one-third holding of the units in that Trust. That $4.25 million was a payment to subscribe for units in the Hospital Trust. It did not represent payments pursuant to cl 5.1(c) of the Hospital Trust Unitholders' Agreement.
7. The implication of Gilmore Finance's claim appears to be that although it agreed to pay $4.25 million to purchase 28 units in the Hospital Trust, it should only have been required to pay one-third of the funds required to complete the purchase of the Hospital Land or, at least receive back the difference between the amount of its subscription and an amount equal to one-third of the funds necessary to complete that purchase.

The Discount Units Claim

1. This claim arises from the issue by A3, on 9 August 2012, of 17 units in the Hospital Trust to Ms Conway and Ms Yates.
2. Gilmore Finance's pleaded case in relation to this claim is that the unit price ascribed by A3 to the units acquired by Ms Conway and Ms Yates on 9 August 2012 "was at a significant discount to the unit price ascribed by" A3 to the units acquired at that time by Gilmore Finance, and that by reason of A3 granting Ms Conway and Ms Yates such "Unit Price Discount", A3 breached its fiduciary duties to Gilmore Finance because it: 1. preferred the interests of Ms Conway and Ms Yates over the interests of the Hospital Trust; and 2. did not act independently in the collective interest of the unitholders in the Hospital Trust. [54]
3. The only submission made on behalf of Gilmore Finance about this matter was in the final paragraph of its opening submissions: "[A3] did not act even-handedly towards beneficiaries when, on 9 August 2012 it contrived to sell 33 units in the [Hospital Trust] to [Gilmore Finance] at $166,666.67 per unit, and on the same day to issue 24 units to Ms Conway, and 25 units to Ms Yates, for $62,211 and $58,646 per unit respectively on the strength of an unsecured IOU."
4. The matter was not referred to at all by Mr Marshall in final written or oral submissions.
5. The figures in Gilmore Finance's submissions on this point are not correct.
6. As I have set out above, on 9 August 2012, A3 issued: 1. 17 units in the Hospital Trust to Ms Conway and Ms Yates for $132,353 per unit (totalling $2.25 million, being the amount advanced by Gilmore Finance to A3 that day, and thus providing the means by which, in the circumstances I have set out above, the Gilmore Loan would be repaid); and 2. 33 units to Gilmore Finance at $166,665.67 per unit, being the units for which Gilmore Finance subscribed in the 5 June 2012 Unit Allotment Agreement.
7. These unit allotments were part of a series of transactions to which Gilmore Finance, with the benefit of advice from Mr Coates, agreed to as a means by which to fund completion of the purchase by A3 of the Hospital Land and to increase Gilmore Finance's investment in the Hospital Trust to an equal one-third investment with interests associated with Mr Amirbeaggi and Mr Yates; namely the unitholdings of Ms Conway and Ms Yates.

Failure to provide proper accounts

1. Clause 10.2 of the 12 May 2011 Kingswood Trust Unitholders' Agreement obliged A1 to prepare "accounts of the Business and the Trust" "as soon as practicable after the end of each financial year".
2. In closing submissions, Mr Marshall referred to the "dilatory presentation of the accounts" and drew attention to the dates when the financial accounts for the Kingswood Trust were produced. He submitted that: 1. the accounts for FY11 and FY12 were produced during the course of the hearing; and 2. the accounts for FY13, FY14, FY15 and FY16 were not prepared until 1 February 2017.
3. However, as Mr Pritchard submitted: 1. there is in evidence a large number of communications concerning the provision of financial statements, including an email sent by Mr Coates to Mr Amirbeaggi, on 28 May 2014, in which Mr Coates stated that Mr Camilleri "has now been given all the information he was seeking"; 2. Mr Amirbeaggi arranged for Gilmore Finance to have access to A1's and A3's external accountant Mr Bland, including in an email of 14 July 2011 to Mr Gilmore, Mr Wayman and Mr Armstrong and an email sent to Mr Camilleri on 7 February 2013, which was copied to Mr Coates and Mr Gilmore; 3. in 2015 Mr Amirbeaggi arranged for A1 to retain an independent accountant, Mr Gino Malacco, from Hall Chadwick, to conduct an independent review of A1's accounts. Mr Malacco produced a report of 1 July 2015 in respect of A1's accounts. [55] In his 1 July 2015 report Mr Malacco expressed the opinion that the financial statements of A1 prepared by Mr Bland contained "errors and inconsistencies in the manner in which the accounts should have been prepared" and made various recommendations as to what should be done. Mr Marshall made no reference to Mr Malacco's reports in closing submissions and did not seek to engage with the defendants' written submission that, after Mr Malacco's report was provided to Mr Coates and Mr Gilmore, there was no communicated criticism of the reports or objection of its suggestions; notwithstanding that, in his covering email of 13 July 2015 enclosing the Malacco report, Mr Amirbeaggi stated: "Please consider the content of Paul Chadwick Report, and provide your commentary within 14 days. Subject to your comments I intend to put in place/heed the recommendation, and take steps towards equalisation of accounts."
4. Further, in closing oral submissions, Mr Fernon, who presented this part of the argument on behalf of A1, A3 and Mr Amirbeaggi pointed out that Gilmore Finance: 1. had not pointed to any request for the accounts for FY11 and FY12 such as would have required their service prior to when service in fact occurred; and 2. has had access to the accounts for FY13 to FY17 since February 2017.

Failure to keep proper books and records

1. It is hard to know precisely what complaint Gilmore Finance maintained in relation to the books of account of A1 and A3.
2. I heard concurrent evidence from accounting experts retained by the parties, being Mr David Hambleton for Gilmore Finance and Mr Clayton Hickey for A1 and A3.
3. Mr Fernon objected to the admissibility of Mr Hambleton's report on the basis that, although he is a chartered accountant, his background and experience is in acting as a liquidator rather than dealing with accounting standards.
4. I do not find it necessary to come to a conclusion about that submission. That is because the fundamental dispute between Mr Hambleton and Mr Hickey was whether the accounts for A1 and A3 should have been prepared in accordance with accounting standard AASB 101.
5. On behalf of A1 and A3, Mr Fernon developed detailed submissions as to why Mr Hickey's opinion, that standard AASB 101 was not applicable and why Mr Hambleton's contentions to the contrary, should not be accepted.
6. However, and strikingly, the closing written submissions on behalf of Gilmore Finance made only fleeting reference to Mr Hambleton and contained the bold submission that: "Moreover, even if the Court were to accept that the minimum standard required of the financial statements of the trusts was that they present as a true and fair view of the financial position and performance of them (as Mr Hickey contended …) the financial reports which the Trustees produced failed to comply with even this lower standard. Accordingly, whether or not AASB 101 applied with full rigour to the financial reports produced by the Trustee, those reports nevertheless failed to comply with the obligations imposed on the Trustee by the Deed and the Unit Holders' Agreement."
7. That submission was not developed. No submission was proffered as to why the relevant accounts did not present a true and fair view of the financial position of the two trusts.
8. Mr Hickey did agree that the loan of $2.25 million made by Gilmore Finance to A3 was wrongly omitted from A3's financial statements.
9. The explanation for the omission was that A3's external accountant, Mr Bland, took the view that Gilmore Finance's loan should be booked as a loan to Ms Conway and Ms Yates, and not to A3; evidently, because he understood that the Gilmore Finance loan would be repaid by Ms Conway and Ms Yates in due course.

Failure to keep accurate unit registers

1. This complaint was not pursued by Gilmore Finance in final submissions.

The Unauthorised Transaction Claim - Kingswood Trust

Engagement of Yates Beaggi

1. Clause 13 of the 12 May 2011 Kingswood Trust Unitholders' Agreement was headed "Unitholder's Restrictions" and provided, under the heading "Reserved Items": "Any decisions to be made by [A1] regarding the following items must be unanimously approved by the Unitholders (or the Directors appointed by the Unitholders) before the decision is deemed to be made and the matter is implemented."
2. One of those "Reserved Items" was contained in cl 13.1(b): "The making of any loan, borrowing of any money, or provision of any guarantee, in respect of amounts over $10,000." [56]
3. Mr Amirbeaggi caused his own firm, Yates Beaggi, to be retained to provide legal and other advice to A1.
4. In that regard, cl 6.1(e) of the Unitholders' Agreement provided that the unitholders agreed that: "[T]hat the Trustee shall (through Yates Beaggi Lawyers or other lawyers as approved by the parties) provide the following legal services to the Trust and Trustee the cost of which services shall be capped at an amount of $69,000.00, exclusive of GST: (i) acting in respect of 36 conveyances which make up the 60% pre-sales component - $54,000.00; (ii) preparation and negotiation of the relevant building and construction contract - $5,000.00; (iii) preparation of this Agreement and group structure - $5,000.00; and (iv) acting in respect of registration of strata plan of the Development - $5,000.00."
5. Issues of construction arise in relation to both of these clauses.
6. In relation to cl 13.1, cl 4.1 of the Unitholders' Agreement provided that "it is agreed", that is by the Unit Holders, that the initial "director/s" of A1 would be Mr Amirbeaggi, alone.
7. Mr Pritchard submitted that it followed from this that Mr Amirbeaggi should be seen to be the director "appointed by the Unitholders" for the purpose of cl 13.1 and that, "by conscious choice, the unitholders named a single director, Mr Amirbeaggi, to represent them, not a plurality".
8. Mr Marshall submitted that "directors of the Trustee are not appointed by the unit holders but by members of the Trust corporation". That may be true, but the Kingswood Trust Unit Holders Agreement is not a shareholders' agreement and is, rather, an agreement by the unitholders in their capacity as unitholders as to who will be a director of the trustee, A1.

Unauthorised borrowings

1. Another of the "Reserved Items" requiring approval under cl 13.1 of the Kingswood Trust Unitholders' Agreement was, as I have set out, any borrowing exceeding $10,000.
2. As I have mentioned above, on 8 September 2015, A3 borrowed $1.725 million from Ares Capital Management Pty Ltd. That loan was secured by a mortgage over the Kingswood Land.
3. In closing submissions, Mr Marshall stated that this money was used to repay the loan of $2.25 million made by Gilmore Finance to A1 in August 2012. That is not correct. The Gilmore loan was repaid in the manner I have set out at [336].
4. In fact, as Mr Pritchard set out in detail in closing submissions, the money was borrowed in order that A1 could implement the recommendations made by Mr Malacco from Hall Chadwick in his report of 1 July 2015 to "correct the number of units on issue and their value as at January 2011". I have referred above to Mr Amirbeaggi's retaining of Mr Malacco to review the financial records of both A1 and A3 to determine their accuracy. [57]
5. A1 borrowed the $1.725 million from Ares Capital Management Pty Ltd to implement Mr Malacco's recommendations.
6. On 15 September 2015, after A1 entered into the loan agreement with Ares Capital Management Pty Ltd, Mr Amirbeaggi wrote to Mr Coates: "I have engaged via a finance broker with ANZ to procure finance to meet: (a) Repayment of Unit Holder Loan Accounts; (b) Early works on the property for bulk excavation and basement works; and (c) Construction and completion of the structure/entire project. Hall Chadwick have updated their reporting since 31 March 2015, ie through to today, which includes the present Unit Holder loan accounts. A copy of their updated schedule is attached. Pursuant to the Circular of 13 July 2015. Through refinance I will now repay each of the Unit Holder loan accounts down to parity. As per the HC reporting, the Unit Holder loan accounts are as follows: 1. Conway/Yates $1,431,776.00; and 2. Gilmore Finance $271,747.00. … From the sum procured I will repay to the Unit Holders the following sums to bring about parity in the Unit Holder Loans: (a) Conway/Yates $1,374,147.50; and (b) Gilmore Finance $214,118.50. After those payments the Unit Holders will have equal loan accounts of Conway/Yates $57,628.50 and Gilmore $57,628.50. As and when the ANZ facility is operational to take out the short term facility, and provide further capital to meet the ongoing expenses, I will with that facility discharge the Unit Holder Loans to zero. I expect that facility to be in place over the next 4-6 weeks. I will separately meet any upcoming expenses of the trust until that further facility is in place and repay those expenses from that facility once it is funded."

The Unauthorised Transaction Claim - Hospital Trust

Accounts and records and engagement of Yates Beaggi

1. In relation to the accounts and records of the Hospital Trust and the engagement of Yates Beaggi to do work in relation to the Hospital Trust, Mr Marshall did little more than refer to the submissions he made in relation to these topics so far as concerns the Kingswood Trust.
2. Mr Marshall made no mention of Mr Malacco's report about that Trust.

Unauthorised borrowings

1. Mr Marshall referred to the fact that on 23 December 2016, A3 borrowed $3 million from Perpetual Trustee Company Ltd as trustee for the Arch Finance Warehouse Trust and granted Perpetual Trustee Company Ltd a mortgage over the Hospital Land to secure that borrowing. Having referred to the borrowing, Mr Marshall did not develop any submission about it save that each required unitholders' approval under the provision in the Hospital Trust Unitholders' Agreement equivalent to that to which I have referred in relation to the Kingswood Trust.
2. In opening submissions, Mr Marshall had sought to raise an issue as to how the proceeds of this borrowing were used by A3. Mr Pritchard handed up, as an aide memoire, a document pointing out that these matters had not been pleaded. Evidently in response to that document, Mr Marshall made no submission in closing about the use to which the borrowed funds were put; and did not submit that they had been used for otherwise than the proper purposes of the Hospital Trust.
3. On the other hand, Mr Pritchard pointed to emails from Mr Amirbeaggi to Mr Coates which suggested that the funds were used to meet future expenses in relation to the Hospital Project.
4. For example, on 30 July 2013, Mr Amirbeaggi wrote to Mr Coates with a copy to Mr Yates: "I expect to incur the following sums in the promotion and marketing of the property over the following 6 month period. Between my approaches, and those of the agents, I expect to incur sums of approximately $20,000.00 to $30,000.00 per month time/marketing and out of pockets. … Whilst [Gilmore Finance] has made a unilateral decision to abate meeting capital requirements of the trust for its 1/3 interest, Conway and Yates have continued to meet the entirety of the expenses. Given the experience in A1, Conway and Yates are approaching a point in time where they too will cease further provision of funding, and have foreshadowed with me to raise capital against the property in order to meet its outlays both past and future. I require some resolution from the Unitholder in order to progress much further on funding the expenses on the Trust. In the absence of some resolution of funding as between the Unit Holders I will approach the funding market to raise capital against the assets of the Trust. I look forward to your early advice in that regard."

Removal of A1 And A3 as trustees

1. Finally, Gilmore Finance seeks orders removing A1 and A3 as trustees of the Kingswood Trust and the Hospital Trust.
2. Both parties developed detailed submissions as to the circumstances in which the Court may remove a trustee under s 70 of the Trustee Act 1925 (NSW) and appoint a trustee "whenever it is expedient" to do so. The Court has, in addition, an inherent jurisdiction to remove a trustee where the Court considers that the continuance of the trustee in the trust will prevent its proper execution. [58]
3. Gilmore Finance's submissions concerning the removal of A1 focused on the complaints it made about the delay in the preparation of the trust's accounts for F13 to F17, concluding with the unhelpful submission that: "[T]he financial affairs of the Trust are shrouded in an evidentiary twilight and the information which has been provided has been produced in the form of unreliable documents drip fed to the plaintiff over the course of the proceedings and only after putting the plaintiff to the trouble of obtaining orders requiring that production."
4. Gilmore Finance did not develop any separate submissions in relation to the position of A3 as trustee of the Hospital Trust.
5. In my opinion, Gilmore Finance has not demonstrated any conduct on the part of either A1 or A3 such as would warrant their removal as trustee.
6. In any event, the Kingswood Trust and the Hospital Trust were established for the specific purpose of pursuing identified property developments, neither of which is now proceeding. Both the Kingswood Land and the Hospital Land have now been sold.
7. On behalf of A1 and A3, it was submitted that none of the trusts was in possession of any assets, "save for adverse costs orders against Gilmore Finance".
8. On the other hand, it was submitted on behalf of Gilmore Finance that "it is not [at] all clear that there are no assets in the trust".
9. However, Gilmore Finance engaged Mr Hambleton to conduct a close analysis of the accounts of the trusts and, were there evidence that either of the trusts had assets, that is a matter which it could have established.

Conclusion

1. None of the claims advanced by Gilmore Finance has been established.
2. The proceedings should be dismissed with costs.

Endnotes

1. Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law.
2. For convenience, and without intending any disrespect to Mr Aspinall and Mr Arnold, I will henceforth refer only to Mr Marshall, unless the context otherwise requires.
3. Mr Amirbeaggi made a lengthy affidavit in which he gave accounts of conversations with Mr Wayman, Mr Gilmore and others. He agreed that his recollection of conversations was reconstructed from his review of contemporaneous documents. However, his evidence about these conversations was not challenged. In particular, it was not suggested to him that the substance of what he recorded as having been said in these conversations was not correct.
4. Mr Gilmore said he was not the person to whom Mr Wayman referred.
5. The identity of "Kenny" was not established in the proceedings.
6. Mr Wayman's wife.
7. GWH, originally known as Levdev Pty Limited, was incorporated on 6 April 2010 by Mr Amirbeaggi, evidently as a shelf company; Mr Armstrong became sole director and shareholder on 7 February 2011.
8. The "completion date" defined in the document.
9. Clause 2.1.
10. Clause 2.2.
11. Ultimately executed on 12 May 2011: see [183] below.
12. Clause 4.1.
13. One quarter of a one-half interest: 25% x 50% = 12.5%.
14. See [390] below.
15. At [405]ff.
16. It was not clear from Mr Armstrong's evidence whether he asserted that Mr Hollioake was also involved in deceiving Mr Gilmore. It is not necessary for me to make any finding about this.
17. As with Mr Marshall et al, for convenience, and without intending any disrespect to Mr Fernon or Mr Macauley, I will henceforth refer only to Mr Pritchard, unless the context otherwise requires.
18. See [285]-[287] below.
19. Two from Ms Yates and three from Ms Conway.
20. A third party investor, who played no role in these proceedings.
21. Gilmore Finance Pty Ltd v Aesthete Pty Ltd atf Real Money Unit Trust [2022] NSWSC 311.
22. (1959) 101 CLR 298; [1959] HCA 8.
23. At [27].
24. Mr Armstrong was referring to Mr Amirbeaggi and Mr Yates.