Consideration
196 The problem for the applicant in establishing these claims is the absence of evidence as to what was said in the impugned conversations and, significantly, the circumstances in which the conversations arose, and the impugned statements were made. The applicant chose to make (and persist) with these claims in the absence of direct evidence of the persons who were said to be the recipients of the representations. In the absence of evidence from Mr Wang and Mr El-Saj, the parties to these conversations, the claims rely entirely on what are said to be admissions by Mr Titus, and inferences which the applicant submitted can, and for its claim must, be drawn from them. The evidence is limited. Although it is said that there is some evidence that supports these admissions, even if that were to be accepted, it is insufficient and cannot overcome the gaps and deficiencies in the underlying evidence. In those circumstances, in my view, the evidence is insufficient and the applicant has not established either of the claims.
197 It is important to recall the applicant's submission was that Mr Titus' evidence about contentious matters must be treated with great caution, except where it is corroborated or against his interest.
198 Further, the applicant's submission that Mr Titus "contacted various people in the industry, including Mr Jack Wang of Style Timber, and a Mr El-Saj of Richard Crookes Constructions", has not been established. Rather, the only evidence in respect to this aspect is from Mr Titus who stated that he was contacted by them, asking questions about the product. At best, the evidence is that persons involved in the industry contacted Mr Titus, given his position at Cemimax, to ask about warranties on its products. That is the context of the ordinary and reasonable listener.
199 As the respondents submitted, this claim is in a commercial context of the manufacturer giving information about its products, when asked.
200 Moreover, given that by the end of the hearing the applicant conceded that neither representation could be maintained as against Mr Lopez and Imperial Flooring, the applicant's submission that Mr Titus was acting on behalf of Imperial Flooring is irrelevant to the resolution of this claim.
201 In respect to the first representation, Mr Titus' evidence was as follows:
Q: You certainly can recall, can't you, that you had a conversation with Mr Wang about the warranty situation that he bought through Mr Yates?
A: The conversation that was had was Mr Wang asking me about stock being outdated, and the answer I said to Mr Yates was - whether it's from Evagroup or from anyone else, if the stuff is out of date, then I can't warrant it - you know?
Q: You said more than that to Mr Wang - didn't you. You said also that Evagroup was selling stock that you considered to be out of date?
A: Well he had some stock that was out of date - correct.
Q: And you said to Mr Wang that if Mr Wang purchased that stock for his projects from Evagroup, he would not be protected by warranty?
A: No, I said to the effect that if you were purchasing products that are out of date, then we could not warrant that. If Mr Yates has that stock in his warehouse, it's up to Mr Yates to sell Mr Wang stuff that was within date.
Q: And I know you're - it's difficult after this time, Mr Titus, but that last statement that you made about what you said to Mr Wang, did you say that face to face with Mr Wang or did you say it on the phone?
A: No, it was on the phone.
202 In Mr Titus' affidavit of 10 March 2020, his evidence was:
I refer to paragraph 162. I admit that I had a conversation with Mr Wang with words to the effect of:
He said: "How is it possible for Peter to bypass you and sell direct?"
I said: "Peter has brought stock that was almost out-of-date. Out-dated stock would not be warranted and that applies to all customers. We will warrant everything else as usual."
I deny the balance of words attributed to me in that paragraph.
203 I note that this first representation, as opened on by the applicant, was that Mr Lopez was a party to this telephone call, and that during this call, Mr Titus, who was also on the call, said the words alleged. Mr Titus denied that, in relation to the conversation he was referring to, Mr Lopez was party to the telephone call. Mr Lopez also denied that there was any such conversation, or that such representation was said by him, or in his presence or hearing. The telephone call referred to by Mr Titus in cross-examination during which the first representation was said to have been made is significantly different to that identified in opening as the basis of the claim. It was said during opening that this representation was made to undercut Evagroup's business in favour of Imperial Flooring. A three way conversation involving Mr Lopez is different to a telephone conversation with Mr Titus alone, where Mr Wang asked him questions about stock being outdated.
204 I also note that although the Statement of Claim pleads the first representation being on or about 12 November 2019, there is no evidence of when the conversation that is referred to by Mr Titus occurred. No date or approximation thereof, was put to Mr Titus.
205 For the reasons given above, Mr Titus was not a reliable witness. He gave inconsistent answers on this topic, in addition to those referred to above. However, that does not assist the applicant as rejecting his evidence on a topic does not result in the opposite being established. At best, for the applicant, Mr Titus' evidence is that at some unknown time, in a telephone call between Mr Wang and Mr Titus, Mr Titus said that out of date stock is not covered by a Cemimax warranty in response to question(s) about out of date stock. Although he said Evagroup had some stock that was out of date, that is not clear given the evidence. That is, it is not entirely clear whether the evidence in cross-examination was that Evagroup had some out of date stock or that is what he told Mr Wang. There is nothing in the evidence that this was said to relate to all the Cemimax stock that Evagroup had on hand, or that all such stock is not warranted by the manufacturer. The broader context of the conversation, is unknown. There is no evidence as to what else was said in the conversation, as surely there were other topics of conversation.
206 In those circumstances, given the paucity of evidence, the applicant has not established the claimed statement was said, that the imputations alleged arise, and that it is defamatory.
207 I have formed that view without addressing the respondents' submission that the Court should draw a Jones v Dunkel inference, and as such it is moot.
208 In respect to the second representation, Mr Titus' evidence was as follows:
Q: And you talked to him about the particular bags or the particular source of DL55 that was being used by Floor Prep?
A: In what sense?
Q: You said to him, didn't you, that the supplier from whom Floor Prep was obtaining its DL55 was selling out of date products?
A: Incorrect.
Q: You said to him, didn't you, that if they - that's to say if Floor Prep used DL55 Cemimax brand leveller, obtained from that source, it would not be protected by any warranty?
A: What source?
Q: The source that you said was selling out of date products?
Q: But who is it?
Q: Well, you named them, didn't you? You said EVA, Evagroup?
A: I said - I didn't say that. I said if stock is out of date, it's not warranted, whether it's Evagroup, whether it's anywhere else, stock is not warranted.
209 Mr Titus accepted that this conversation occurred in November 2019.
210 The email of 21 November 2019 sent by Mr Titus is necessary for making out the applicant's case, as it is that email that is said to make clear the conversation referred to Evagroup. The email was in response to an email of Mr Tai of Richard Crookes Construction asking three general questions:
John,
We refer to a recent telephone conversation between yourself and our contract administration Youcha El-Saj, in respect of using the Cemimex DL55/ Cemimex topping products for floor topping underneath carpet areas to the above project. We are at the final stage of deciding the appropriate product to use and seek clarification on the following (particularly from a QA perspective).
1. We understand there may be some 'outdated' stock products in the market through your product distributor(s), please advise how we can identify these outdated products.
2. Please advise the 'shelf life' of Cemimex DL55 and the process you use in tracking and recording, to determine whether a particular stock is outdated.
3. From your advice, we understand the 'outdated' stock is suitable for domestic applications. Please provide the technical information relating to the suitability of domestic application versus residential apartments application (like the Montofior project). ie. Explain how it is suitable for domestic but not other applications.
We would be grateful if you can quickly assist with the above queries.
Regards,
Keith Tai, Contracts Manager
211 Mr Titus' reply was:
Hi Keith,
Thank you for the email.
1. In regards to the outdated stock, everything that comes from our Cemimax warehouse in 5 Coates Place Wetherill Park is well within date. We sell close to 50,000 bags a month so our stock barely reaches 3 months old. The conversation had with Youcha was in regards to a ex customer of ours Evagroup that had purchased out of date stock at a discounted rate, and was advised we will not be warranting it. They also had stock that we believe to affected by a flood they had a few months ago and we also said it was not going to be warranted because we cant guarantee the outcome. I believe a couple of layers that has been using this on your site that buy from them have been using the stock from there and to date have had no concerns. We put a 12 month shelf life on our products however depending on how it's stored a longer shelf life can be achieved. But as the manufacturer we need to do this because we can't always guarantee where the stock has been kept in the presence of storage from our customers. We don't have any customers that store our Cemimax products that is in their warehouse for more than 2-3 months. Most of the stock that leave our warehouse goes directly to site.
2. The shelf life we have is 12 months on our DL55. This is tracked by the manufacturing record we keep once the stock has been made.
3. In regards to domestic applications, and as quoted "from my advice", the reason for me saying this is because it was mentioned that if the stock is to be used on domestic installations where no warranty was to be given then its up to the Supplier to advise the installed of this. As in commercial applications a warranty will always be given for our material that is in date.
Just to add we have been supplying contractors for the last couple of years with our Cemimax products to your sites, and it was been a great success with no issues or concerns with our products. We had sold over 2million bags in the last two years and not one problem has occurred with any of our products. To date we have a zero record of products that been affected negatively.
Don't know who is making claims or trying to damn us, but it concerns me that out of the blue we have a situation like this. If you would like me to attend your site and inspect any of the convers you have or the products on site, I will gladly do so.
If you have any further questions please don't hesitate to contact me.
Regards,
John Titus.
212 Mr Titus was asked about the email which included the following:
Q: And you see at the beginning of the second line, he's got "distributer", and he's giving you the option of it being plural or singular. And what I'm suggesting to you is you had already said to Mr El-Saj that one product distributer, namely Evagroup, was selling outdated stock and the like?
A: No, I didn't.
Q: And he's confused, isn't he, this is numbered paragraph 2, because he's looked at the product, and it's got no shelf-life on it?
A: Mmm.
Q: And that's because, of course, isn't it, the whole concept of shelf-life is something that had become convenient to you to spruik because you now were a weapon to defeat Mr Yates with?
A: That's incorrect.
…..
Q: And you knew that the effect of saying the product that Mr Yates is selling isn't suitable for commercial situations would have been to stop him supplying Montefiore Randwick?
A: Well that's incorrect. Mr Yates could have sold him the stuff that was - was well in date, not the stuff that was out of date, so.
Q: And your intention, of course, in doing this, was to prevent him supplying Montefiore Randwick?
A: That's incorrect, I'm sorry.
Q: It was to interfere with the arrangement under which Preps - sorry, Floor Prep was buying his stock to use in its contract with Montefiore Randwick?
A: Incorrect. Wholly incorrect.
…..
Q: You are saying in this email, the conversation - I insert the word "I" - "the conversation I had with Youcha was in regard of an ex-customer of ours, Evagroup, that had purchased out of date stock at a discounted rate, and was advised that we will not be warranting it". And I'm suggesting to you that resolves any doubt at all about whether in your conversation with Mr El-Saj you had named Mr Yates' company?
A: Well that's because - he's brought up the - he's brought that up first, and I said anything that's outdated - of course.
Q: That's just untrue, isn't it, Mr Titus?
A: No, it's not.
Q: You had brought it up first?
A: Sorry?
Q: You had brought it up first?
A: No.
Q: In the conversation with Mr El-Saj?
A: Well that's why he rang me, to ask me the question. So how can I have brought it up first?
Q: Well, I beg your pardon, we will do that more carefully. You had, in the conversation with Mr El-Saj that took place prior to the receipt of Mr Tai's email, said to Mr El-Saj "it's Evagroup who have got the out of date stock, it's Evagroup whose product will not be warranted by us"?
A: Well that's generalising. Like I said to you before, Evagroup had stock that was in date, and stock that was out of date.
Q: Now?
A: He was fully aware of that, so he can't - I - you know - I can't be responsible for him to sell out of date stock.
Q: We're dealing here with a likely?
A: he's got - got stock
Q: Sorry. I didn't mean to stop you, you ?
A: well he had stock that was within date, there's no reason why he couldn't sell that stock.
…
Q: You knew that the information that you gave to Mr El-Saj in that conversation about the warranty was untrue, didn't you?
A: How so?
Q: You knew that there would be no problem for the enforcement of a warranty on the Cemimax product if it was purchased by Floor Preparation Australia via Mr Yates' Evagroup?
A: If I knew - there would be no warranty if it was bought from Evagroup.
Q: Now, you knew that the warranty situation would be exactly the same and that Richard Crookes Construction and their client would have exactly the same contractual rights if the Cemimax leveller was bought via Mr Yates as if it was bought via Mr Lopez?
A: No. The thing in question here is the stuff that's out of warranty.
Q: And in suggesting to Mr El-Saj that he was in danger of getting unwarranted product if he dealt with Mr Yates you told a deliberate untruth?
A: Not at all. That's not true.
213 The email is not the subject of any claim for defamation. Rather, the applicant's claim is based on the conversation between Mr Titus and Mr El-Saj. The relevance of the email is that the applicant submitted this is evidence of the content of the conversation.
214 As with the first representation, Mr Titus' evidence is inconsistent. Again, rejecting his evidence on a topic does not, without other evidence, result in the opposite having been established. There are many unsatisfactory aspects of Mr Titus' evidence in relation to this topic.
215 Although the email does make clear that in the conversation reference was made to Evagroup, the sentences in the email about the conversation do not provide any context in which the statements on the telephone were made. The only oral evidence in relation to that aspect was Mr Titus' limited evidence. Despite the questions put in cross-examination, the only evidence was that this conversation occurred as a result of Mr Titus being approached by Mr El-Saj. As with the first representation, with limited exception, there is no evidence as to what else was said in the conversation. Although the email referred to the storage of Cemimax products, there is no evidence, one way or the other, that that was said during the conversation. The email also included that the product can be used after the 12 month period depending on storage. Again, there is no evidence as to whether that was said. The email talks of layers who have had no concerns about products. The imputations which flow from statements are affected by the context in which they appear, or are said. The imputation is to be construed in the context of the entire publication. As this is an oral representation that is relied on, the overall tone or tenor of the person making the representation may effect the imputation to be drawn. Here, there is an absence of evidence of the context.
216 Moreover, it is important to recall the imputation alleged, that Cemimax products sold by Evagroup will not be protected by any warranty from Cemimax. The inference from that allegation is that it relates to all and any Cemimax product. Mr Titus' oral evidence did not relate to all stock. Nor is that said in the email. The absence of the full context in which the conversation occurred, in the circumstances of this case, hinders the applicant's ability to establish whether the imputation arose.
217 Moreover, two of the three submissions made by the applicant referred to above at [191] in support of the imputations sought, the basis on which there was no warranty, and that Mr Titus' statements were to the effect that Evagroup's products have characteristics which made them less desirable than products Cemimax can provide, are matters separate from the imputation as to warranty. In any event, there is no evidence that during the conversation relied on, a comparison between Cemimax and Evagroup products occurred.
218 Again, given the paucity of evidence, the applicant has not established the statement claimed was said, that the imputations alleged arise, and that it is defamatory.