Findings about the conversations of 31 January 2019
396 I also accept that Mr Caratti had two telephone conversations with Mr Tiller on 31 January 2019. There is a diary note of the first conversation which I have set out above at [189]. Once again, it appears to have been jotted down during the course of the conversation, and does not contain anything that is self-serving or implausible. And there is a company search bearing that date, which is the very sort of thing that one would expect Mr Caratti to perform once he had been told about Dimension. While there was no diary note of the second conversation in evidence, it is inherently likely that Mr Caratti called Mr Tiller back after seeing the name of Damian Bryce on the search, which was unknown to him. Mr Tiller's recollection of these conversations was too imprecise to gainsay that basic sequence of events, and nor did he seek to.
397 Based on the commonality between the evidence of these two witnesses which I have described, on the diary note, and on the performing of the subsequent company search, I find that in the first conversation Mr Tiller referred to his accountant in Adelaide, and he said that Dimension Agriculture had been set up as an entity that would be the basis of a new structure for the Farms, which would require new leases and would be the repository for the assets of the farming business in place of the SC & FH Tiller partnership, and that this was made necessary by the impending divorce and the need to 'get everything away' from Mrs Tiller. Mr Tiller also told Mr Caratti that he had already delivered crop into Dimension Agriculture's name, and that the crop for the year was valued at about $8 million. That is all consistent with the diary note. In the context I have described, it is likely that all these things implicitly conveyed to Mr Caratti that Mr Tiller had set up Dimension to be his company and to be the new structure within which his farming assets would be held.
398 It is also common ground, as noted earlier, that Mr Caratti asked Mr Tiller who stood behind Dimension. How Mr Tiller responded to that question is central to this case. Mr Caratti's evidence was that he said 'It's all me. I totally own and control Dimension'. I do not accept that Mr Tiller answered in such emphatic terms. It is not recorded in the diary note and does not ring true. If Mr Tiller did say that, he was rather protesting too much, given that there is no suggestion in the evidence of either witness that anyone else had been mentioned in the conversation. He had already implicitly conveyed to Mr Caratti that it was his company. This is an instance of Mr Caratti embellishing his evidence.
399 Mr Tiller's evidence as to his response was that he said it was none of Mr Caratti's business and it did not matter who was behind Dimension and that all he had ever cared about in the past was whether the rent was paid on time [197]. While that is not inherently implausible, I do not accept that it happened. Mr Tiller was cross-examined on the apparent inconsistency between that reaction on 31 January, and his evidence that on 22 January 2019 he told Mr Caratti that Mr Nicoletti was one of the farmers to whom he was speaking. Mr Tiller sought to explain this by saying that he was 'sick and tired of John Caratti' by 31 January: 'He was asking me a lot of personal questions and during the course of that week, he had rang a number of my financiers, badgering them, and I was just absolutely fed up with him, actually' (ts 238). But he could not explain why, if he wanted to end Mr Caratti's questioning, he did not just remind him that he had already told him that it was John Nicoletti who was going to provide financial backing. He just said, 'I was pretty agitated in the conversation and it was a long one' (ts 238). But the question of who was behind Dimension was hardly a minor point he could hope to gloss over.
400 Most importantly, Mr Tiller's evidence about what Mr Caratti said after he was told it was none of his business who was behind Dimension is implausible. Mr Caratti is supposed to have said words to the effect 'yeah as long as the rent and rates are paid I don't care who's behind Dimension'. That is an unlikely thing for any prudent landlord in Mr Caratti's position to say, and on the basis of all the evidence about Mr Caratti's conduct, and my observation of him in the witness box, it would be most uncharacteristic of him. Plainly he did care, because he performed a company search immediately after this conversation and, it is common ground, asked Mr Tiller about what the results revealed. And Mr Tiller's evidence that he was sick and tired of Mr Caratti for badgering his financiers and others during the preceding week only adds to the implausibility of the idea that Mr Caratti would say he did not care who was behind Dimension.
401 The cross-examination of Mr Tiller included this exchange (ts 238-239):
And you say that he said, 'I don't care who's behind Dimension'?---Yes.
And you were proposing Dimension would take over completely from the partnership and the farming operations, which is what you've said in (a)?---That's what I was wanting to do. Yes.
And you say that he doesn't care who's going to do that?---He just wanted his money.
Well, how does he even know he's going to get the money if he doesn't know who's behind you?---I had already told him.
Who did you tell him?---Sorry?
Who did you say?---I told him on the 22nd it was Nico.
Okay. So why, if you said that - again, I will ask why, if you said that, wouldn't you just be open with him if he said it again?---I don't know.
It's the honest thing to say, isn't it?---He already knew.
So, if you already knew, it doesn't make much sense then, for him to say, 'I don't care who is behind Dimension.' That makes no sense at all, does it?---I don't know, I don't know - I can't see what the problem is.
Well, what I'm trying to put to you, Mr Tiller, is that your recollection makes no sense at all?---Why doesn't it make sense?
You're unable to explain why you weren't just open with Mr Caratti when he asked you again, and your explanation is inconsistent with a statement that you say he said, 'I don't care who's behind Dimension.' Well, if he knows it's Mr Nicoletti, why would he say, 'I don't care who's behind Dimension.'?---I don't know even why he asked me.
402 The impression I formed was that Mr Tiller was feigning incomprehension of the point of the questions in an attempt to evade the obviously unsatisfactory nature of the answers he was giving. I agree with cross-examining counsel that Mr Tiller's recollection of the conversation made no sense.
403 I find that when Mr Caratti asked Mr Tiller who was behind Dimension, Mr Tiller said, in substance, that Dimension was his company. That is consistent with the lack of mention of anyone else in Mr Caratti's diary note and with what I have already found was implicitly conveyed by Mr Tiller saying that Dimension had been set up on the advice of his accountant to be the repository of the partnership assets. It is the only answer which, plausibly, could have caused Mr Caratti to continue the conversation without protesting that he needed to know who was behind it, and it is common ground that he did not protest in this way. It is also consistent with Mr Tiller's wish not to disclose Mr Nicoletti's involvement.
404 Mr Tiller also gave evidence of Mr Caratti asking about Mr Bryce but, as I have said, Mr Tiller's evidence did not distinguish between the two conversations of 31 January 2019. In my view Mr Bryce is likely to have been mentioned in the second conversation, after the company search with his name on it, so I will deal with that below. It is possible that Mr Tiller's evidence that he told Mr Caratti that it was none of his business who was behind Dimension was intended to be a response to the question about Mr Bryce, but it is more clearly responsive to the question about who was behind Dimension. In any event, I have found that this response was not given.
405 Staying with the first conversation of 31 January 2019, Mr Caratti's evidence was that the conversation continued with Mr Tiller saying that he wanted Dimension to take on the lease and he wanted all the lease terms to remain the same. I accept that; it is consistent with the diary note and with Mr Tiller's intentions at the time. Mr Caratti's evidence was also that he said it would be OK provided Mr Tiller remained on the Farms and ran the Farms and remained on the lease as the tenant in an individual capacity and he said 'I am backing you here, Simon'. While I accept that Mr Caratti indicated general assent to the 'restructure', I am not persuaded he said those other things. They are not mentioned in the diary note, and Mr Tiller's subsequent attempt to pass off the removal of his name from the lease as a 'minor' amendment suggests that the message had not been communicated to him at that point. It is likely that this part of the evidence is also embellishment on Mr Caratti's part.
406 I am also not persuaded that the rest of the conversation proceeded in the way that Mr Caratti's evidence said it did: see [188] above. None of that detail appears in the diary note. Nor did Mr Caratti remember it when he was cross-examined in a non-leading way on the conversation (ts 113). It would appear that Mr Tiller did not agree to accelerated payment of the final arrears instalment of $140,000 because when that was proposed in the first draft of the surrender of the Tiller Lease, a counter offer was made for only half of that amount to be paid, which was accepted without apparent demur [210]. Also, Mr Caratti's supposed question as to where Dimension would find the money to meet costs is inconsistent with his other evidence that Mr Tiller had said Dimension was his company, and that he had had a very good year. This is another instance of embellishment on Mr Caratti's part.
407 The first conversation ended and Mr Caratti performed a company search of Dimension. It showed Mr Tiller and Mr Bryce as directors and Mr Bryce as sole shareholder. Mr Caratti called Mr Tiller back.
408 I have set out Mr Caratti's account of the second conversation at [191] above. There is no diary note of the conversation. I do not accept that Mr Caratti remembered it word for word, despite the indication from the use of direct quotes in his witness statement that he did. But no doubt he did say, in substance, that he had performed a company search of Dimension, and asked who Damian Bryce was. And Mr Tiller replied saying that Mr Bryce was an agricultural consultant. Mr Caratti's evidence was that he then asked Mr Tiller how he found Mr Bryce, and Mr Tiller said that Mr Nicoletti referred him. All of this is, in effect, common ground between the witnesses because Mr Tiller's evidence was, similarly, that Mr Caratti asked who Mr Bryce was and he (Mr Tiller) said he was a farm consultant who had been referred to him by Mr Nicoletti.
409 Mr Tiller's evidence suggests that Mr Caratti responded to the mention of Mr Nicoletti by asking why Mr Bryce was a director of Dimension. That is unlikely. It is much more likely that Mr Caratti asked whether Mr Nicoletti was involved. That is so because of John Caratti's perception of Mr Nicoletti as being bonded to Allen Caratti, and given that John Caratti would not have been content to see Mr Nicoletti benefit from the low rent under the Tiller Lease. In short, the reasons I have identified above for Mr Tiller and Mr Nicoletti not wanting Mr Caratti to know about Mr Nicoletti's involvement are the same reasons why Mr Caratti would not have let any mention of Mr Nicoletti pass without further questioning or comment.
410 So Mr Caratti did ask about Mr Nicoletti's involvement. But involvement in what? Mr Caratti's evidence was that he asked 'is Nico getting involved in any of this'? While I do not accept that Mr Caratti remembered the precise words used, I do accept that this was the substance of his question. It would have been an unnaturally specific way of putting the question if he had asked, for example, whether Mr Nicoletti was getting involved in Dimension, or the Farms, or the New Leases. It is more likely, and I find, that Mr Caratti posed the question in that general way.
411 It is inherently probable that Mr Tiller answered in the negative. That is the only answer which is consistent with the fact that on neither witness's version of events did Mr Caratti protest or question Mr Tiller about the precise nature of Mr Nicoletti's involvement. In all the context I have outlined, that could only be because he was told that Mr Nicoletti had no involvement.
412 In cross-examination Mr Caratti's account of this key part of the conversation was different from his witness statement. According to the witness statement, he asked 'is Nico getting involved in any of this?' and Mr Tiller replied 'Absolutely not'. According to the cross-examination Mr Caratti asked, 'Well, what has Nico got to do with this?' and Mr Tiller replied 'Absolutely nothing' (ts 114). In response to a specific question Mr Caratti emphatically confirmed that those were the exact words that were used. He is recorded in the transcript as saying 'That's one that is very concise in my head' (in fact he must have said 'precise').
413 Now, that was incorrect. The words were not precise in Mr Caratti's head, because his witness statement gave different words. This is an example of why, despite the categorical nature of Mr Caratti's answers in cross-examination, I have approached his evidence with caution. There is no basis on which I can choose between his two different accounts of the conversation, and find that one but not the other (or some third combination of words) is correct.
414 But in this case I do not need to. That is because, even having regard to the caution in Watson v Foxman, the differences of detail do not lead to any difference of substance. That case does not stand for any principle that an applicant relying on oral statements must fail unless the precise words used are proven on the balance of probabilities. McLelland J's observations were framed to take account of the fallibility and imprecision of human memory. At 318-319 his Honour said (emphasis added):
it is necessary that the words spoken be proved with a degree of precision sufficient to enable the court to be reasonably satisfied that they were in fact misleading in the proved circumstances. In many cases (but not all) the question whether spoken words were misleading may depend upon what, if examined at the time, may have been seen to be relatively subtle nuances flowing from the use of one word, phrase or grammatical construction rather than another, or the presence or absence of some qualifying word or phrase, or condition.
415 Section 18 of the ACL is concerned with the effect or likely effect of conduct upon the minds of those by reference to whom the question of whether the conduct is or is likely to be misleading or deceptive falls to be tested. The test is objective and the court must determine the question for itself: Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82 at 87. It is a question of fact to be decided by considering what is said and done against the background of all surrounding circumstances: Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 at 202. So what was conveyed by Mr Tiller's answer to Mr Caratti's question is to be assessed objectively in light of all the context, by reference to what a person in Mr Caratti's position is likely to have understood it to mean.
416 Here questions of subtle nuances or qualifying words do not arise. Whether Mr Tiller's answer conveyed that Mr Nicoletti was not 'getting involved in any of this', or whether his answer conveyed that Mr Nicoletti had nothing to do with 'this', the effect is the same. In the context I have described, 'this' must have referred to the putative transaction that was under discussion, whereby, in order to deal with the consequences of the breakdown of Mr Tiller's marriage, the assets of the partnership, including the leasehold interest in the Farms and the farming business run on the Farms, would be transferred to Dimension. (I have not found that Mr Caratti had said that Mr Tiller's name must remain on the lease and he would need to keep working the Farms.) So, saying that Mr Nicoletti was not getting involved in that proposed transaction, or saying that he had nothing to do with that proposed transaction, meant the same thing. It meant that Mr Nicoletti had no involvement with Dimension and if the transaction proceeded in accordance with the proposal as it stood at the time of the conversation, he would have no involvement with the lease or Dimension or its activities on the Farms.
417 For the reasons I have given, it is inherently probable that an exchange to that effect took place. That must, of course, be understood subject to the fact (as was common ground) that Mr Tiller had said Mr Nicoletti had referred Mr Bryce to him.
418 Counsel for the respondents submitted that I should take account of what he said was the omission by counsel for Harvard to put to Mr Tiller Mr Caratti's version of the conversation. Counsel for the respondents acknowledged, properly, that he was not in a position to submit, on the basis of the rule in Browne v Dunn (1893) 6 R 67, that it was not open to make findings adverse to his clients. That was because the respondents' witnesses were all respondents in their personal capacity. They were aware of the allegations Harvard was making and took the opportunity to provide witness statements responding to Mr Caratti's main statement. But in any event I am satisfied that cross-examining counsel questioned Mr Tiller in sufficient detail on his evidence about the key points concerning the conversations of 31 January 2019 - his evidence that Mr Caratti already knew that Mr Nicoletti was involved and said he did not care who was behind Dimension - that there was no need for counsel to systematically put Mr Caratti's version of the conversation to him.
419 Nevertheless, the respondents advanced two reasons for doubt about whether Mr Tiller did deny that Mr Nicoletti had or would have any involvement with Dimension, the lease or the Farms. One was that, in contrast to the telephone conversation of 22 January 2019, and the first conversation of 31 January 2019, Harvard produced no diary note of the second conversation of 31 January. When cross-examined about that, Mr Caratti just said that he did not put every conversation in his diary. He gave no more specific explanation, such as that he didn't have his diary with him at the time of the conversation, and given that he had the company search in front of him when he telephoned Mr Tiller back it is unlikely that any such explanation is available (ts 114). Harvard submitted that the very absence of a diary note points to the veracity of Mr Caratti's evidence, as it means that there was no attempt to prepare a self-serving note late on. That may be, but there are numerous diary notes of Mr Caratti in evidence which suggests that he was an assiduous note taker, and the absence of one for this most important conversation, when he was probably in a position to make one, is curious.
420 The other reason for doubt about Mr Caratti's evidence is that Hotchkin Hanly's letters of 25 March 2019 and 2 April 2019 to the respondents and their solicitors did not mention this key exchange. I have set out the relevant parts of the letters above (see [266], [276]). In the first, the claim was that Harvard was misled by a representation that Mr Tiller would continue to operate the farm himself, with the new company simply replacing Mrs Tiller, or by a subsequent statement that he was in such financial trouble that this earlier 'promise' could not be kept. The letter said that either Harvard had not been informed at the time it decided to enter into the new arrangements with Mr Tiller that there was a significant risk he could not continue to operate the Farms himself, or that Mr Tiller now (i.e. as at 25 March 2019) wanted to relinquish control. There is no claim of any express representation that Mr Nicoletti would have no involvement in anything.
421 In the second letter, Hotchkin Hanly presented the results of further investigations which drew the link between Mr Nicoletti and Mr Bryce and alleged, in effect, that Dimension had been incorporated with Mr Bryce as shareholder and a director, as a vehicle for Mr Nicoletti's involvement and so as to conceal that involvement from Mr Caratti. But even then, there was no mention of an express representation about Mr Nicoletti. Rather, it was put that Mr Tiller explained to Mr Caratti that he needed to replace his wife with a company to conduct the farming operations, but 'deliberately withheld' the fact that it was intended to be a vehicle for Mr Nicoletti to take over those operations. And yet, by the time of trial Mr Caratti said he had a 'precise' recollection of Mr Tiller having made an express representation that Mr Nicoletti was not involved, in emphatic terms. If so, it is strange that these letters did not mention that express representation but rather put a case of non-disclosure.
422 The lack of a diary note may be explicable on the simple basis that people do not always behave consistently. That was the essence of the explanation Mr Caratti gave in cross-examination. The absence of any mention in Hotchkin Hanly's letters of the express representation that Mr Nicoletti was not involved is harder to explain. Mr Caratti could not give any coherent explanation in cross-examination.
423 But at least in a civil case, the trier of fact is not required to make findings only when they are consistent with every aspect of the evidence. While the lack of mention of the express representation in the letters is troubling, I am still persuaded on the balance of probabilities that Mr Tiller did answer a question as to whether Mr Nicoletti was involved in 'this' in the negative. That is inherently likely, because it is common ground that Mr Tiller said that Mr Nicoletti referred Mr Bryce to him, because Mr Caratti is bound to have asked whether Mr Nicoletti was involved, because I have found that Mr Tiller did not want to disclose that he was involved, and because no protest or further questioning from Mr Caratti about Mr Nicoletti ensued.
424 A recurring theme of the respondents' case was that Mr Caratti's claim about these representations was a fabrication which Mr Caratti constructed so that he could obtain vacant possession of the Farms and obtain higher rent from the Fowlers. Certainly that would be the effect of the orders Harvard seeks, and no doubt Mr Caratti wants to achieve that result.
425 Nevertheless, the respondents' theory faces the problem that Mr Caratti believed from at least the time of Mr Vaughan's appraisal in June of 2018 that the $800,000 per year plus GST that the Tillers were paying was significantly below market. And Mr Caratti had an opportunity to terminate the lease at least from the expiry of the period for remedy under the default notice concerning the rates, that is 1 February 2019, and he did not take that opportunity.
426 It is not necessary for me to find that Mr Caratti was motivated by altruism or benevolence in order to explain that. It is relevant to note that Mr Tiller was maintaining the Farms well, which was no doubt important to Mr Caratti. It is also relevant to note that Mr Caratti appeared to consider himself bound to the lease, because he said so to Mr Vaughan. But in my view the main explanation for Mr Caratti's tolerance of Mr Tiller's defaults is that a prudent landlord of farming land would behave that way. Mr Caratti said that while Mr Tiller was late, he always paid (ts 125). He gave evidence that he had granted payment extensions to farming tenants numerous times, and 'What it always boils down to is that a wool cheque hasn't come in, or a wheat payment hasn't come in, or the crop hasn't been good. There's different circumstances' (ts 128) ([124] above is an example of this). Mr Nicoletti's evidence echoed Mr Caratti's in this regard, when he said that he had from time to time asked Allen Caratti if rent could be paid a little later, for example after harvest, if cash flow was tight. He said that from his knowledge and experience in the farming industry, that was very common, 'especially with wheat farms where the main income for the farm occurs once a year during/after harvest. If landlords wish to keep tenants, they must be flexible' (Nicoletti III, para 30). In my view, Mr Caratti was simply exhibiting that necessary flexibility.
427 The respondents submitted that Mr Caratti did not know about the extent of interest in the Farms until 14 March 2019, when he received advice from Mr Vaughan. But he had received clear advice from Mr Vaughan in June 2018, and it is likely that as a landlord with extensive rural holdings Mr Caratti was well aware of the extent of interest in his properties. In fact, as early as 2017 he said in an email that he had been approached by others in the district to, in effect, replace Mr and Mrs Tiller as tenants [131]. I do not accept that Mr Vaughan's advice of 14 March 2019 that everyone was after arable cropping land was news to Mr Caratti at that time.
428 The respondents also submitted that Mr Caratti's fear of being left out of pocket for rates, the remaining arrears instalments and, potentially, rent for the entire 2019 season explains why he did not act on the 18 January default notice. No doubt that is one important explanation. But it does not follow that the evidence about the conversations of 31 January is a fabrication. That Mr Caratti had these concerns is at least equally consistent with the view that, out of pure pragmatism (not out of benevolence towards or a preference for Mr Tiller), Mr Caratti permitted the restructure of the Tiller Lease and did not consider removing Mr Tiller and Dimension as a tenant until Mr Vaughan recommended that he look for potential tenants, as a result of concerns about Mr Tiller's financial position.
429 The respondents also submitted that Mr Caratti knew about Mr Nicoletti's involvement at least from mid to late February 2019, when Mr Tiller told him about it in a telephone conversation. But that conversation only appeared in Mr Tiller's evidence-in-chief, it is not corroborated or supported by any other evidence or surrounding circumstances, and Mr Caratti denied it took place. Given my concerns about Mr Tiller's credibility, I am not persuaded that it did take place.
430 It is true that Mr Vaughan spoke to Andrew Fowler before the formal authority to lease was provided on 27 March 2019, but it is not clear from his evidence how long before, and nor does he say he told Mr Caratti. So I do not find that this prompted the allegations of misleading conduct that were first made in Hotchkin Hanly's letter of 25 March 2019 All in all, these circumstantial matters concerning Mr Caratti's motivations on which the respondents relied are insufficiently compelling to negative the findings I have made.
431 The respondents attacked Mr Caratti's evidence that Mr Tiller mentioned another farmer in the conversations of 19 and 20 March 2019, in order to submit that Mr Caratti already knew about Mr Nicoletti's involvement. They said that there is no mention of another farmer in Mr Caratti's diary notes of the conversations with Mr Tiller (TB 137-138). However, there is mention of Mr Tiller's intention to 'sell livestock to a friend' in the second diary note (TB 138), and Mr Caratti's evidence was that this was the farmer whom Mr Tiller mentioned. Also, that Mr Caratti only found out about Mr Nicoletti's involvement at this time is consistent with the timing of the first letter from Hotchkin Hanly on 25 March 2019 (TB 144). Also, the reference in Mr Caratti's evidence of the conversation with Mr Nicoletti on 21 March 2019 to Mr Nicoletti sending men and equipment down is consistent with Mr Tiller's, Mr Nicoletti's and Mr May's evidence about when Mr May started working on the Farms (ts 188, 258, 291) (evidence to which Mr Caratti did not have prior access). Given my concerns about the credibility of Mr Tiller's and Mr Nicoletti's evidence, and given that it is inherently improbable that Mr Caratti knew about Mr Nicoletti's involvement before 21 March 2019 without saying anything about it, I find that he was not aware of that involvement before 19 March 2019, and it was not confirmed to him before 21 March 2019.
432 Mr Tiller and Mr Nicoletti both gave evidence that in their conversations with Mr Caratti in late March 2019, Mr Caratti asked them, in effect, to relinquish the Farms to him, in Mr Nicoletti's case in return for $500,000. Given my concerns about the credibility of each of these witnesses, I am not persuaded that Mr Caratti did make those requests or offers. It is quite plausible that he did, but mere plausibility is not enough. And even if he did, and even if that shows that, as the respondents submitted, he was motivated by money, that does not alter my view that in late January and early February, also essentially motivated by money, he chose not to seek to evict Mr Tiller, but to permit him to restructure, essentially on the terms of the Tiller Lease.
433 In those circumstances, it would be far-fetched to suggest that Mr Caratti, aware all along of Mr Nicoletti's involvement, chose to keep silent about it until late March 2019, when he had only a short period of time to obtain vacant possession before the start of the 2019 season. If he had truly been motivated by a desire to secure higher rent in early February 2019, his most direct course would have been to terminate the Tiller Lease then for default, giving him maximum time to re-let the Farms before the start of the season. It is true that he would have been unlikely to recover the circa $135,000 in rates and the remaining 'arrears' payment of $140,000, but given that he believed he could obtain approximately $700,000 extra rent for the first year (given Mr Vaughan's appraisal of 26 June 2018), that would have been a risk worth taking. I do not find that Mr Caratti was motivated by any desire to obtain vacant possession of the Farms before Mr Vaughan (whose evidence I accept as truthful) advised him in mid-March 2019 to gauge interest in the Farms [259].
434 As for the rest of the second conversation of 31 January, Mr Caratti's evidence was in substance that he 'interrogated' (his word) Mr Tiller about why Mr Bryce was a shareholder of Dimension and was told that he held the share on trust for Mr Tiller, in order to keep his assets out of reach of Mrs Tiller, and that he (Mr Tiller) controlled Dimension. I accept this evidence, because it is inherently probable that Mr Caratti did ask about the results of the company search and it is likely that he focussed on the apparent incongruity between what, I have found, is the impression conveyed that Dimension was Mr Tiller's company, and the fact that Mr Bryce and not Mr Tiller was the shareholder. The explanation which on Mr Caratti's evidence was given, that Mr Bryce held the share on trust, is the only one that is likely to have satisfied Mr Caratti, and it is also consistent with the impression Mr Tiller gave in previous conversations that the object of the transaction was to remove assets from Mrs Tiller's reach. It is at least common ground between the two witnesses that there was some discussion about Mr Bryce's role, and that discussion must have satisfied Mr Caratti, as clearly he did not press it further until after the events of late March.
435 Given my concern that Mr Caratti was not above embellishing his evidence to suit Harvard's case, I do not find that other things appearing in his evidence were in fact said. Statements (purportedly rendered word for word) such as 'I am Dimension. I run the show, John' are likely to be embellishment. There is nothing in the context or the objective evidence which makes it inherently likely that Mr Tiller said that Mr Bryce would be doing all the work that Mrs Tiller previously did and I am not persuaded that this was said.
436 By the same token I do not accept Mr Tiller's account of what was said. His evidence was that Mr Caratti asked why Mr Bryce was a director, and he was satisfied by a vague answer that he was 'assisting with the business'. Given my doubts about Mr Tiller's credibility, I do not find that this was said either. Mr Tiller was cross-examined about that as follows (ts 239):
You said - your evidence is, 'I said words to the effect Damian is assisting with the business.' You understand the impression that that gives someone, doesn't it?---I'm not sure what you're asking me.
All right. You said previously that he was appointed a director just to set up the company, correct?---Yes. Yes.
You told the court that?---Yes.
Now you're saying Damian is assisting with the business?---Isn't that the same?
I asked you specifically whether he was in to assist with the operation of the business and you said, no he wasn't. You said he's just there for setting up the company. And I said to you, why would you appoint a director just to set up a company. Couldn't answer that question. What I'm putting to you is, this is completely untrue. Makes no sense at all. Almost none of this conversation makes any sense, does it?---Why doesn't - I don't know what you're talking about.
437 I agree with cross-examining counsel that very little about Mr Tiller's version of the conversations of 31 January 2019 makes sense. It does not necessarily follow from this that Mr Caratti's version of events should be accepted, but for the reasons I have given on the key points it is consistent with the inherent probabilities of the situation and the common ground between the witnesses and for that reason I accept it to the extent that I have indicated.