Supreme Court of WA|2008-07-16|Before: Mr P, Dixon J, Templeman J

NEW RESOURCE HOLDINGS PTY LTD -v- LUNT [No 2] [2008] WASC 140 (16 July 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NEW RESOURCE HOLDINGS PTY LTD -v- LUNT [No 2] [2008] WASC 140

Commercial agreement - Subordinated loan as part of consideration - Payment of part loan by director - Whether director authorised to make payment - Sale of options by director - Whether exercise of options by purchaser in breach of rights of preemption attaching to shares, if so, whether rights waived - Company disputes authenticity of signatures for waiver of preemptive rights and undoing of subordination - No direct challenge to evidence that waiver not signed by financier - Whether document apparently signed by financier genuine - Whether signatures genuine in the circumstances - Standard of proof - Turns on own facts

1 TEMPLEMAN J: The plaintiff claims that on or about 11 April 1995, William Trevor Lunt, the first defendant, who was then a director of the plaintiff, paid the sum of $200,000 'to a third party unknown to the plaintiff ... when the plaintiff had no liability to do so'.

2 The plaintiff claims that in so doing, Mr Lunt acted in breach of the statutory, equitable and common law duties he owed to the plaintiff as a director. The plaintiff seeks a declaration that Mr Lunt acted improperly and that judgment be given against him in the sum of $200,000 or that he make restitution of that sum with interest in either case.

3 Mr Lunt admits that he was a director of the plaintiff at the material time and that he made the payment as alleged. He contends that the payee was the second defendant which, at the time, was owed an amount of $325,000 by the plaintiff. As will be seen, the second defendant is a company which at all material times was owned beneficially by Mr Lunt. However, no cause of action is pleaded against the second defendant, and no relief is sought against it.

4 Mr Lunt contends that the payment of $200,000 was made with the plaintiff's full knowledge and approval, as evidenced by a document signed by Peter Briggs with whom, it is alleged, 'ultimate control of the plaintiff rested' (although he was not then a director), and his wife, Robyn Briggs.

5 Mr and Mrs Briggs deny that they signed the document: they claim that it is a forgery. They make similar claims in relation to other material documents which also appear to bear their signatures.

6 Despite the seriousness of the allegations made by the plaintiff, it is required to prove its case only on the balance of probabilities. However, it is necessary to keep in mind the well known passage in the judgment of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency. Thus, Mellish LJ says: 'No doubt the court is bound to see that a case of fraud is clearly proved, but on the question at what time the persons who have been guilty of that fraud commenced it, the court is to draw reasonable inferences from their conduct' (361 - 362).

7 More recently, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, the majority of the High Court said:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct (170 - 171). (footnotes omitted)

8 In applying those principles to the present case, it is relevant to note that although the events in question took place in 1995, the action was not commenced until 2001. The principal witnesses were Mr Briggs for the plaintiff and Mr Lunt. They did not prepare witness statements until July 2007.

9 Counsel for the plaintiff drew my attention to a judgment given in the District Court in which Mr Lunt was found to have concocted (but not forged) documents in support of a claim made against the plaintiff by his wife. This was not relied on as similar fact evidence (nor could it have been). However, counsel submitted that Mr Lunt had been shown to be an untruthful witness.

10 Counsel for Mr Lunt drew my attention to a judgment in the Mining Warden's Court where similar criticisms had been made against Mr Briggs.

11 It is common in civil trials concerned with events which took place many years earlier, that recollections have faded and that greater weight is often placed on contemporaneous documents than on oral evidence. However, according to Mr Lunt, some 20,000 of the plaintiff's documents, including many he would regard as significant, are in the possession of the New Zealand equivalent of ASIC. It is not clear to me why this is so: and there is no independent evidence to that effect. Further, the authenticity of crucial, apparently contemporaneous documents, is in issue. The documents must therefore be treated with caution.

12 Against that background, I turn to consider the evidence.

13 In 1991, Mr Lunt, who had been acquainted with Mr Briggs for many years, approached him as a potential investor in a joint venture for the manufacture of organic fertiliser from chicken manure.

14 Mr Lunt then owned the exclusive rights to the relevant technology, which were apparently held through a company known as Baywil Pty Ltd by Waste Recovery Systems Ltd (WRSL), the second defendant. At the time, WRSL was incorporated in Liberia, although it operated from an address in Hong Kong.

15 Mr Lunt instructed his accountants to incorporate a further company which was known as WRS Australia Ltd (WRS Australia) for the purpose of exploiting the technology.

16 According to Mr Lunt, WRS Australia employed him, his wife Lois Lunt and Robert Michael John Skidmore. Mr Skidmore, who described himself as a motor engineer by training, was the technical person in the project. He was concerned with the design and installation of the organic fertiliser plants.

17 Mr Lunt's position in 1991 was that he had invested heavily in a joint venture for the manufacture of organic fertiliser in Pakistan. He needed finance to fund further investments. Mr Lunt approached Mr Briggs, who agreed to provide finance through one of his family companies, Essex Properties Pty Ltd (Essex Properties).

18 On 21 May 1991, Mr Lunt and Mr Briggs, through the various entities to which I have referred, entered into an agreement for the purpose of exploiting the organic fertiliser technology. The vehicle by which it was sought to achieve that objective was the plaintiff company. It was then known as Pacific Platinum NL, but its name has been changed subsequently to:

WRS Pacific Ltd in July 1991;
WRS Pacific Pty Ltd in July 1997; and
New Resource Holdings Pty Ltd in July 2005.

19 The agreement was made between the plaintiff, WRSL, Essex Properties and Baywil (TB 153).

20 The agreement recited that the plaintiff had an authorised capital of $10,000,000 divided into 50,000,000 shares each of 20 cents par value: and that on or before settlement, it would have allotted and issued 10,500,000 shares.

... is an administration and management company that administers and manages the affairs of [WRSL] and in such capacity retained Baywil to consult, advise, provide international business introductions and assist in negotiating and securing licensing agreements and funding for [WRSL].

The Parties have agreed that after Settlement WRS Australia Ltd shall continue to administer and manage the affairs of [the plaintiff].

22 The term 'Assets' was defined to include all the intellectual property relating to the processes involved in the production of organic fertiliser, which property was said to be owned legally and beneficially by WRSL.

23 By cl 2.1 of the agreement, WRSL as legal and beneficial owner, agreed to sell the assets to the plaintiff for a price of $3,325,000.

The Purchase Price shall be satisfied as follows:

(a) $3,000,000 by the allotment and issue of 1,485,000 Shares at $2.02 each (ie a premium of $1.8202 per Share) on the Settlement Date; and

(b) $325,000 shall be a loan owing by [the plaintiff] to [WRSL] which shall be classified as a Subordinated Loan and be payable in accordance with the terms and conditions of clause 11.

The Subordinated Loans shall be interest free and subordinated to all other creditors and loans and shall only be repaid pro rata on the balance outstanding from time to time as at 1st July out of audited after tax profits. In the event that the Subordinated Loans are not whole or in part repaid from all of the audited after tax profits in any financial year then the Subordinated Loans shall, with the agreement of [WRSL] and [Essex Properties], become repayable on demand.

26 Clause 13 of the agreement contained pre-emption provisions. For present purposes, it is necessary to note only that cl 13 prohibited the parties to the agreement from selling, assigning, transferring or otherwise disposing of any fully paid ordinary share in the plaintiff without the written consent of the other parties.

27 Mr Briggs described the $325,000 'loan' as a 'success fee/performance bond'. Although that is not the way it is described in the agreement, I accept that to be its effect. That is because there was no actual loan. The amount of $325,000 would be paid to WRSL out of after tax profits: that is, only if the project was successful.

28 Although Mr Briggs was the plaintiff's financier, he was not initially a director. As at May 1991, he was disqualified from holding such office.

29 Mr Lunt and Mr Skidmore were appointed as directors on 27 June 1991, and on the same day, Kevin Bond was appointed as the plaintiff's secretary.

30 Mr Bond is a chartered accountant, then practising as a member of the firm known as Barrington Partners. He had known Mr Lunt since the 1980s in a professional capacity (ts 564). On 27 June 1992, Mr Bond was appointed a director of the plaintiff.

31 In the agreement, the address of WRSL is said to be 6th Floor, Bank of America Tower, Harcourt Street, Central Hong Kong. However, as at the date of the agreement, the company was registered in Liberia. This appears from a letter dated 21 September 2004 under the hand of Stephen Frey, the Vice President of the Liberian International Ship & Corporate Registry, LLC (TB 791). According to Mr Frey, WRSL 'commenced legal existence on August 13, 1987' and 'was annulled from the Register on February 1, 1994'. However, it was reinstated on payment of fee arrears, which were apparently paid up to 30 June 1996 (TB 197).

32 Mr Lunt said he thought WRSL had been incorporated in Hong Kong on 1 July 1996. He thus contradicted his evidence-in-chief, in which he said he gave instructions to his accountants to incorporate the Hong Kong company in or about 1989: exhibit 22, par 4.

33 Neither assertion accords with the evidence that a representative of the plaintiff had been informed by an officer of the Registrar of Companies in Hong Kong that WRSL was incorporated there on 22 February 1999 with the name Mesca Ltd, and changed its name to WRSL on 18 April 1996. I accept that to be the case.

34 Mr Lunt's evidence in cross-examination was that he was not, and had never been, either a shareholder or director of the Hong Kong WRSL but that it was his company (ts 474). He confirmed this later in his cross-examination (ts 537). He was then asked if he was in a position to direct the company. He said:

I gave instructions as I sought [sic, thought] fit in operational matters to Mr Johnson, Samantha Hong and Gabriel Tam, but not in corporate matters (ts 537).

35 Mr Lunt went on to say that the company had been established for his benefit. As I understood his evidence, he had placed his daughter in some position in the company to ensure that he maintained control, although in fact, his daughter's position was only nominal (ts 537).

36 Contrary to this evidence, Mr Lunt made a statutory declaration on 7 May 1997 (the purpose of which is unclear), where he wrote:

The beneficial owner of Waste Recovery Systems Ltd is Alan Johnson (TB 355).

37 Mr Lunt said he did not think this was a false declaration:

I took advice from Mr Johnson prior to signing this and this is in accordance with his instructions to me. He controlled the business at all material times in a complete legal sense but funds that were recovered by Waste Recovery Systems Ltd were remitted to me and adversely [sic] fees for Waste Recovery Systems Ltd were paid by me (ts 538).

38 Mr Lunt said that Alan Johnson was the Hong Kong managing partner of his accountants Horwath & Horwath, who had acted for him since 1989 and continued to do so. He said he had attempted to contact Mr Johnson to enquire about his availability to give evidence at the trial, but that he had not responded to an e-mail or to two telephone calls. Mr Lunt said he therefore telephoned Mr Johnson's personal assistant and was informed that he was 'out of station' (ts 465).

39 It is not clear when Mr Lunt made these enquiries. However, his evidence was that he visited Mr Johnson in Hong Kong on 14 March 2008 (only four weeks before the trial commenced) and that Mr Johnson confirmed that 'in accordance with his firm's document destruction policies', Horwath & Horwath had no WRSL documents in their possession.

40 The evidence about Mr Johnson's whereabouts and his firm's policies is all inadmissible hearsay. There is no proper evidence about the part played by Mr Johnson or his firm in the management of WRSL.

41 Mr Lunt's evidence was that Samantha Hong and Gabriel Tam assisted Mr Johnson at Horwath & Horwath in Hong Kong. He said that 'at some point in the early 1990's', Mr Johnson gave him a rubber stamp bearing Ms Hong's signature. Mr Lunt said he used it for the purposes of signing documents for WRSL.

42 Mr Lunt gave evidence also, about his unsuccessful attempts to locate Ms Hong. As will be seen, the signature 'Samantha Hong' appears on a number of documents relied on by Mr Lunt. However, in the absence of evidence from Ms Hong, it is not clear whether those documents were created or signed by her (and if so, on what instructions) or signed by the application of her signature stamp by Ms Hong, Mr Lunt, or anyone else.

43 I do not regard as satisfactory the explanation for the absence of any evidence from Mr Johnson. This action was commenced in 2001. A trial commenced in August 2007, but was adjourned. It was re-listed in February 2008. Given that the authenticity of crucial documents apparently produced by WRSL is in issue, Mr Johnson would have been an important witness as to the modus operandi of that company. Even if Mr Johnson was unable to attend the trial, I should have expected that a statement would have been obtained from him, with a view to tendering it under s 79 of the Evidence Act 1906 (WA).

44 I make similar observations in relation to Ms Hong: although her evidence would perhaps have been less significant if she worked under the direction of Mr Johnson.

45 I accept that WRSL - the Hong Kong company - was incorporated for Mr Lunt's benefit and that he was its beneficial owner. In the absence of evidence from Mr Johnson, I do not accept that he advised Mr Lunt to make a statutory declaration to the contrary. I therefore conclude that Mr Lunt knowingly made a false declaration.

46 I draw the further inference that WRSL was established and operated for the purpose of concealing the fact that Mr Lunt was its alter ego: and that documents created in its name were intended to further that purpose.

47 I draw the same inference in relation to the Liberian company.

48 Consistently with this purpose, the agreement of 21 May 1991 was apparently executed on behalf of WRSL by Mr Johnson and Ms Hong.

Was there an agreement to unsubordinate the $325,000 loan?

49 Although it is not pleaded, Mr Lunt contends that in December 1992, Mr Briggs on behalf of Essex Properties, agreed that the loan of $325,000 created by cl 2.3(b) of the May 1991 agreement would no longer be subordinated.

50 Mr Briggs denies that he made any such agreement.

51 Mr Lunt contends that as at December 1992, neither Mr Briggs nor 'any of his entities', had paid him or his wife for any of the services rendered to the plaintiff since their engagement by the plaintiff. According to Mr Lunt, he instructed his solicitors, A R Mackinlay & Co, to commence an action against the plaintiff and Essex Properties. He said that in December 1992, Mackinlays sent a draft writ to Mr Briggs. However, no such document has been produced: nor was Mr Mackinlay called to give evidence about its preparation.

52 Mr Lunt then said that as a result of (unspecified) discussions between them, Mr Briggs gave him an undertaking that he would be paid from the first income of the plaintiff 'as a priority to all other calls': and that in consideration of his forbearance to sue, the subordinated loan of $325,000 was no longer to be subordinated. Mr Lunt said he caused WRSL to write to Mr Briggs to confirm their oral agreement.

53 The correspondence on which Mr Lunt relies is said to commence with a letter dated 20 September 1991 on WRSL letterhead, addressed to Essex Properties at Mr Briggs' home: not the address of that company as it appears on the 21 May agreement.

We are very disappointed that we have not received the balance of monies owed to us in accord with our agreement put in place by your Solicitor Mr Michael Bowen and our legal representation [sic] in Australia Mr Alistair MacKinlay.

We now stress that this matter must be settled within the next 30 days otherwise Mr MacKinlay has instructions to proceed with legal action to recover our debt.

55 The letter bears the signature of Samantha Hong, under the name 'Corporate Directors Limited'. As far as I can tell from the photocopy letter in evidence, it was signed by the application of the stamp to which I have referred above (or a similar stamp). However, Mr Lunt's evidence was that he had nothing to do with the letter: it was 'generated by Samantha', who 'sent this letter down' (ts 476).

56 The next letter is dated 14 November 1999 (TB 193). It is in a similar form to that dated 20 September and appears to have been signed in the same way. It is as follows:

Attention Mr Peter Briggs

Dear Sirs

We refer to our discussion today and now confirm that we have paid Mr MacKinlay $71,000 in settlement of legal costs due to him as a consequence of our agreement dated 21 May 1991 and that this amount plus interest is to be added to your existing debt of $117,000 plus interest to make $188,000 plus interest as now due to us.

We acknowledge that you have an overseas transaction settling in the near future and that we will be paid from those proceeds.

57 There is then a further letter dated 14 November 1991 (TB 194):

We are now proceeding to litigation without further referral to you.

We are extremely concerned that you still have not settled your debt to us.

Your failure to honour your agreement leaves us in no other position but to commence legal proceedings.

59 A further letter dated 7 September 1992 (TB 196):

We refer to the discussion today in which you have given an unequivocal promise to settle your debt immediately and confirm that no action will be taken pending receipt of your remittance within 28 days.

60 And finally, a letter dated 16 December 1992 (TB 198):

This is to confirm our agreement today to drop proceedings against you on the clear understanding that immediately funds have been generated within WRS Pacific Ltd that Managing Director William T Lunt has instructions from you to pay us in full and with interest.

This undertaking is given by you and with your acknowledgment that we will be paid as a priority to all other calls upon the first income to be earned by the company and which includes staff, consultants, creditors and taxation.

61 Mr Lunt's evidence was that he had not applied the Samantha Hong signature stamp to the letters dated 20 September or 14 November 1991, but he thought he had applied it to the letters of 19 May (possibly) and 7 September 1992 (ts 476 - 478).

62 However, he did not believe he had stamped the letter dated 16 December 1992 'because at this time we were talking serious litigation' (ts 478). I do not understand that explanation.

63 I accept Mr Lunt's evidence to the effect that all of the above letters were prepared at his request. However, in the absence of evidence from Ms Hong (assuming she was the author) it is impossible to say when they were prepared or whether they were ever sent to Mr Briggs. He denies having received them and claims never to have dealt with anyone in Hong Kong. This is consistent with Mr Lunt's evidence, to which I have referred above, that it was he who had the discussions with Mr Briggs, leading to the agreement said to have been made between them.

64 On Mr Lunt's evidence, that agreement is acknowledged in a letter dated 23 December 1992, signed by Mr and Mrs Briggs as directors of Essex Properties. The letter is as follows (TB 199):

Essex Properties Pty Ltd

5 Ocean Court, City Beach 6015

23 December 1992

Waste Recovery Systems Ltd

12 Harcourt Road

HONG KONG

We accept the content of your letter dated 16th December 1992. Further, the loan which was previously subordinated of $325,000 to all other creditors now ranks equally.

The debt of $188,000 plus interest stand together with the aforementioned amount so that you are a priority ranking creditor due payment upon the completion and encashment of WRS Pacific Limited's first Letter of Credit from the sale of equipment.

Yours faithfully

The letter bears signatures which are said to be those of Mr and Mrs Briggs respectively, in each case, above the word 'Director'.

65 The letter in evidence is a poor quality photocopy. Mr and Mrs Briggs deny having signed any such document.

66 There are a number of features of this letter which cause me to doubt its authenticity. First, I would have expected Essex Properties to have a proper letterhead. The heading here is in the same font as the text. It does not contain a full address or include telephone or fax numbers. In any event, the address is that of Mr Briggs' residence. It is not the company's address.

67 Secondly, although the letter purports to be an acceptance of the contents of the letter dated 16 December 1992, it does not do so: the terms are different.

68 Thirdly, and in my view, most significantly, Mr Briggs was not, as at December 1992, a director of Essex Properties. He was disqualified from acting as a company director for five years from December 1987 to November 1994. I therefore think it unlikely he would have signed any document as a director during that period.

69 The handwriting experts to whose evidence I shall refer below, were unable to express an opinion as to the authenticity or otherwise of the signatures of Mr and Mrs Briggs. However, in the absence of any evidence as to the preparation of the letter dated 23 December 1992, or as to the circumstances in which it was signed, I am not persuaded that it is what it purports to be.

70 I accept the evidence of Mr and Mrs Briggs that they did not sign the letter, and that they did not see it until after these proceedings had been commenced.

71 The audited accounts of the plaintiff for the year ended 30 June 2004 show non-current loans of $325,000 for that year and the previous year. The accounts show also a subordinated loan of $848,734 in the 2004 year. This is said to represent a loan from a related entity which is interest free and not repayable until 30 June 2000.

72 I draw the inference, in the absence of any other explanation, that the non-current loan of $325,000 is the subordinated loan created by cl 2.3 of the 21 May 1991 agreement. I do not understand why it was not referred to specifically as a subordinated loan, but that does not affect my conclusion: which is that there was no agreement between Mr Lunt and Mr Briggs in or about December 1992, to the effect that the $325,000 loan would be unsubordinated. The fact that the loan remained non-current in the 2003 - 2004 financial year is inconsistent with any such agreement as alleged.

73 The circumstances in which the sum of $200,000 was paid by the plaintiff to WRSL are sufficiently clear to enable me to make the following findings of fact, which I set out in narrative form.

74 In early April 1995, Mr Lunt was in Indonesia in connection with the construction of the plaintiff's plant. The Indonesian partner in that venture was Hanafi Latief.

75 Mr Latief wanted to invest in the plaintiff by purchasing shares. Mr Lunt offered 200,000 of the shares he held in a company known as Australian Capital & Technologies Ltd (ACT) at a price of $1 per share. Mr Latief was willing to accept that offer.

76 Before proceeding with such an agreement, Mr Lunt sought advice from Mr Bond, who was in Perth.

77 Mr Bond told Mr Lunt that the proposed sale would result in a capital gain for ACT and would therefore attract capital gains tax. He advised Mr Lunt to consider an alternative transaction.

78 It was then proposed that Mr Latief should acquire 1,499,500 options from ACT for the sum of one dollar, exercise some or all of the options so as to acquire shares and pay the plaintiff $200,000 for that purpose. This amount would then be paid by the plaintiff to WRSL in reduction of the $325,000 'loan'.

79 Mr Bond sought advice about the proposed transaction from Steven Leigh Pynt, a solicitor who had previously carried out legal work for the plaintiff.

80 Mr Pynt's view was that in order to effect the transaction, it would be necessary to issue new shares in the plaintiff and to obtain the agreement of each of the existing shareholders to the waiver of their pre-emptive rights to purchase such shares. Mr Pynt thought that even if such waiver was not actually necessary, it would be prudent to obtain it.

81 I pause to note that no waiver was required. It will be recalled that the pre-emptive rights provision of the 21 May 1991 agreement applied only to fully paid ordinary shares. However, nothing turns on that for present purposes.

82 The documents necessary to complete the transaction were:

(1) an agreement between ACT and Mr Latief, who was to acquire the shares through a company then known as Kingsgate Nominees Pty Ltd (Kingsgate);

83 Mr Bond could not recall who prepared the documents. However, Mr Pynt believed that Mr Bond had prepared the waiver, albeit he (Mr Pynt) either suggested or approved the wording.

84 On Wednesday, 5 April 1995, Mr Bond sent a five-page fax to Mr Lunt in Indonesia from the offices of R B Sharpe & Co in Perth, from which he practised. The fax comprised a one-page covering letter (TB 264) in which Mr Bond said he was sending copies of 'documents drafted by Pynt & Associates'. These were an agreement to transfer options (two pages), a standard form of transfer and a notice to the plaintiff to exercise the options (each of one page).

85 The copy option transfer agreement in evidence is dated 5 April. It appears to bear the signatures of Mr Lunt and Mr Bond as director and secretary of ACT respectively, and the signatures of two directors of Kingsgate: Mr Latief and Mark Pitman.

86 The copy document also bears the seal of ACT (but not of Kingsgate). I find that the seal was applied by Mr Bond (and signed by him) when the document was brought back to Perth. The authenticity of the document is not in issue (TB 265 - 266).

87 I find that the document was signed by Mr Lunt, Mr Latief and Mr Pitman in Indonesia on or about 5 April. That is the date of a cheque in the sum of AUD$200,000 drawn on the National Australia Bank in Jakarta and made payable to ACT (TB 260).

88 A copy notice of exercise of one million options to acquire 20 cent fully paid ordinary shares in the plaintiff is in evidence. It is dated 5 April and bears the signatures of Mr Latief and Mr Pitman (TB 267). Again, its authenticity is not in issue.

89 Also on 5 April, Mr Bond prepared a form of waiver of pre-emptive rights. This was faxed to Mr Lunt in Indonesia at 7.48 am on the following day, with a covering letter in which Mr Bond said the document was to be signed by Mr Skidmore and WRSL (ts 261 - 263). In fact, the document made provision for execution by Mr Lunt and Essex Properties also. It was in the following terms (TB 262):

I/We, the undersigned hereby waive my pre-emptive rights (if any) in relation to the proposed transfer of 1,499,500 options to acquire ordinary fully paid shares of 20 cents each in the capital of WRS Pacific Limited from Australian Capital & Technologies Pty Ltd ACN 009 275 183 to Kingsgate Nominees Pty Ltd ACN 068 897 549.

I/We further consent to the monies received from the exercise of the options being applied in repayment of monies due to William Trevor Lunt, William T Lunt Holdings Pty Ltd, Professional Administration Pty Ltd, Kevin Bond and Waste Recovery Systems Ltd.

90 Mr Bond had no detailed recollection of the preparation of this draft document. However, he agreed in cross-examination that it was unlikely he would have drafted the second paragraph above without first discussing it with Mr Lunt: Professional Administration Pty Ltd was Mr Bond's company (ts 568 - 569).

91 Mr Lunt's evidence was that he had no such discussion with Mr Bond. He appeared to attribute the proposed distribution of the funds so as to include Mr Bond's interests, to Mr Bond's optimism (ts 519). It is not necessary to resolve this conflict in the evidence.

92 In the event, Mr Lunt did not adopt Mr Bond's draft. The second paragraph of the waiver document that he claims to have been signed by Mr and Mrs Briggs, contains a consent to the application of the $200,000

93 I have no doubt that Mr Lunt adopted this form of words because he regarded the whole of the $200,000 as being rightfully his.

94 Having received the bank cheque from Mr Latief, Mr Lunt brought it to Perth. He deposited it in ACT's existing account at the Karrinyup branch of BankWest. He then drew a cheque on that account in the sum of $200,000, which, on 15 April 1995, he deposited in a new account in the plaintiff's name, also at BankWest, Karrinyup (TB 297). I shall refer below to the circumstances in which that account was opened.

95 Mr Lunt was the sole signatory of the plaintiff's new BankWest account. On the basis of that authority, he arranged to have $200,000 transferred telegraphically from the plaintiff's account to someone in Hong Kong. Mr Lunt flew to Hong Kong on 17 April where a cash cheque was drawn by the original payee and was used by Mr Lunt to purchase a bank cheque made payable to himself.

96 On 21 April, Mr Lunt took the cheque to Singapore, where he deposited it in a BankWest branch. The funds (being $197,500 at that stage) were then transferred to his and his wife's personal account at BankWest, Karrinyup (ts 540 - 541, TB 296).

97 The Latief/Kingsgate transaction was completed on 5 July 1995, by the allotment of one million ordinary 20 cent shares in the plaintiff to Latief Australia Pty Ltd (TB 330). The allotment form was signed by Mr Lunt as a director of the plaintiff.

98 It is common ground that as at April 1995, the plaintiff had no after tax profits, audited or otherwise. On the basis of my finding that the loan of $325,000 remained subordinated, it follows that Mr Lunt had no authority to make a payment of $200,000 out of the plaintiff's funds in reduction of that loan.

99 However, as I have noted above, Mr Lunt contends that 'Ultimate control of the plaintiff rested with Peter Briggs' (defence, par 2(b)) and that he knew and approved of the payment.

100 At the time, Mr Briggs had some 10.5 million of the approximately 13 million issued shares in the plaintiff. That being so, I accept that for practical purposes, if Mr Briggs did approve the payment, Mr Lunt would have a complete defence.

101 The plaintiff carries the burden of proving its case. The crucial question, therefore, is whether the plaintiff is able to prove, on the balance of probabilities, but having regard to the principle expressed in Briginshaw v Briginshaw, that Mr Briggs did not know about or approve the payment. Mr Briggs denies any relevant knowledge. However, I do not place any greater weight on his denials than I do on Mr Lunt's assertions to the contrary. That is because neither Mr Briggs nor Mr Lunt was a particularly satisfactory witness. I had the impression that neither had a clear recollection of the events in question and both tended to procrastinate.

102 That being so, it is necessary to consider other evidence from which inferences may be drawn, both favourably and unfavourably to the plaintiff. I deal in turn with each of these matters.

103 Mr Lunt's evidence is that on 5 April 1995, Mr Briggs, in a telephone conversation with him and Mr Latief, agreed that the sum of $200,000 could be paid directly to him. Mr Lunt provided no details about the conversation. Mr Briggs denies that there was any such conversation and says he has never spoken to Mr Latief.

104 In the absence of any evidence from Mr Latief, and no explanation for his silence, I draw the inference that had he given evidence, it would not have supported Mr Lunt's case.

The absence of material evidence from Mr Bond

105 According to Mr Lunt, Mr Briggs' approval of the transaction with Mr Latief was given to him and to Mr Bond. However, Mr Bond's evidence contains no reference to his receiving any such approval.

The opening of the plaintiff's BankWest account

106 This account was opened by Mr Lunt and Mr Bond on 10 April 1995 (TB 274). Mr Lunt said in his evidence that:

Prior to this date [the plaintiff] did not have a bank account.

107 As Mr Lunt acknowledged in cross-examination, that statement was incorrect: the plaintiff had an account with Citibank. Mr Lunt accepted also that in January 1995, the directors of the plaintiff had resolved that its bank account was to be operated on the basis that Mr Briggs had to sign all transactions, with a counter-signature by Mr Lunt or Mr Bond (TB 76 and ts 483).

108 Mr Lunt said also in cross-examination that when he had said that the plaintiff did not have a bank account, he believed it did not have an operating bank account. However, that explanation appears to be implausible. An account reconciliation document prepared by Mr Bond (TB 202) shows that the Citibank account was operating in the period 10 May to 22 June 1995, and that payments were made from it to Mr Lunt or on his behalf, of a kind which must have been made previously from the account.

109 Mr Lunt advanced two other explanations for opening a separate account. The first was that BankWest was putting pressure on him, so he needed to show some good faith by opening an account into which he could deposit funds. However, there is no evidence that Mr Lunt was being pressed by BankWest. Further, even if he was, I do not understand how funds deposited into the plaintiff's account would have assisted him.

110 The second explanation proffered by Mr Lunt was that

given the history of difficulties in being repaid, I wanted to put the funds somewhere they could not be accessed by anyone other than myself.

111 In cross-examination, Mr Lunt said that at the time Mr Briggs was 'under severe pressure from Citibank and I was worried that either Mr Briggs or Citibank would snaffle the money' (ts 483).

112 There is no evidence to suggest that if the sum of $200,000 had been deposited in the Citibank account, it would not have been possible to withdraw it.

113 Further, on Mr Lunt's evidence, Mr Briggs had approved the transaction. That being so, it seems improbable that Mr Briggs would have taken any action to frustrate it. In my view, therefore, the opening of a separate bank account is more consistent with Mr Briggs being unaware of the transaction than having approved it.

114 Mr Lunt made an affidavit in this action on 7 July 2003, in support of his application for summary dismissal of the plaintiff's claim (TB 513). In it, Mr Lunt said that Mr Briggs had countersigned the telegraphic transfer of the amount of $200,000 to WRSL from the plaintiff's bank account: par 27.

115 In cross-examination, Mr Lunt accepted that Mr Briggs had not in fact signed the telegraphic transfer, and had not attended the bank with him. Rather, Mr Lunt said, he and Mr Briggs

would have had a conversation and a meeting on the day prior to this, maybe a day or two prior, and I said, 'Pete, this is what I'm doing. Is this okay with you?' 'Yeah, okay', and he'd initial it. That happened all the time (ts 553).

116 That evidence is inconsistent with Mr Lunt's evidence that Mr Briggs had approved the transaction before 5 April 1995. It was not referred to in his witness statements and was not put to Mr Briggs in cross-examination. Mr Lunt explained the absence of the paper bearing Mr Briggs' initials by implying that it was in the possession of the New Zealand regulatory authority and saying that he had not been able to gain access to it (ts 555).

117 Mr Lunt produced a letter dated 10 April 1995 addressed to Mr Briggs (TB 273). The letter is as follows:

Dear Pete,

I confirm that Hanafi Latief has agreed to subscribe $200,000.00 to WRS Pacific Ltd to enable WRS Pacific to reduce its debt to Waste Recovery Systems Ltd. The funds are now available for settlement so Kev has prepared the following documents for you [sic] signature.

Waiver of Pre emptive rights by Essex in respect to Australian Capital and Technologies Pty Ltd (ACN 009 275 183) transferring 1,499,500 options to acquire ordinary fully paid shares of 20 cents each in the capital of WRS Pacific Ltd to Kingsgate Nominees Pty Ltd (ACN 068 897 549)

(Hanafi's new Co, Waste Recovery Systems has signed as has Rob and I)

Acknowledgment from Natural Resource Finance Pty Ltd that their debt of $878,734.00 as at 30 June 1994 is unsecured and subordinated to all other creditors of WRS Pacific Ltd (please recall and note that the debt of $325,000.00 due to Waste Recovery Systems was, by written agreement with you, converted to an unsubordinated debt on 23rd December 1992. The purpose of this action is to enable us to pay Waste Recovery Systems in order to avoid litigation from them as previously threatened.)
Agreement from Essex allowing the balance of debt, after payment of the $200,000.00 to Waste Recovery Systems Ltd to be assigned to me.

Thanks Pete

Yours sincerely

Trev

118 I have held that there was no agreement to unsubordinate the loan of $325,000 such as that referred to in the penultimate paragraph of the letter. Further, there is no evidence that as at April 1995 there was any need to 'avoid litigation', at the suit of WRSL: in reality, Mr Lunt.

119 Mr Lunt said he left the letter in Mr Briggs' home letterbox. However, the copy in evidence was discovered by Mr Lunt and is presumably his copy. That being so, it is surprising that it is signed 'Trev'.

120 I accept Mr Briggs' evidence that he did not receive the letter.

121 I have referred above to the waiver of pre-emptive rights document prepared by Mr Bond and revised by Mr Lunt, which Mr Lunt claims to have been signed by Mr and Mrs Briggs on 11 April 1995 (TB 280).

122 Mr Lunt's evidence is that at about 6.00 pm on 11 April, he went to the Briggs' home and presented the document to them. He said they both signed it in his presence and applied the company seal.

123 Both Mr and Mrs Briggs deny that Mr Lunt came to their home as he claims: they say their signatures have been forged.

124 Mr Briggs produced his diary for 11 April, showing a dinner engagement at 7.00 pm which he recalled was at the Matilda Bay Restaurant. He said he would have left home at about 6.00 pm in order to be able to have some pre-dinner drinks, that being his 'usual form': and that it was 'not my style' to be doing business just before going out to dinner.

125 Mr Lunt provided no detail of his visit to the Briggs': and nothing was put to Mr Briggs in cross-examination beyond a challenge to the reliability of his diary entries (ts 340 - 341).

126 Mrs Briggs' evidence was not challenged. She was cross-examined only on the basis that she had been Mr Briggs' loyal wife for 46 years and was financially dependent on him; that she had been a director of many companies associated with Mr Briggs, but had no real interest in their business affairs. Mrs Briggs said she would sign documents when requested by Mr Briggs to do so.

127 I accept Mrs Briggs' evidence. However, I do not draw the inference that she made a false witness statement at Mr Briggs' request by saying that she had not signed the document on 11 April 1995, when she had in fact done so.

128 The document was subjected to the scrutiny of two handwriting experts, John Douglas Gregory for Mr Lunt and John Horton for the plaintiff.

129 Both Mr Gregory and Mr Horton are former senior police officers with impeccable qualifications as forensic document examiners. I regard them as equally well-qualified to assist me in determining the authenticity of disputed documents in this case. I put it in that way, because, ultimately, this is a matter for me, pursuant to s 31 of the Evidence Act 1906.

130 Both Mr Gregory and Mr Horton produced reports. They then conferred and produced a minute of conferral setting out points of agreement and disagreement between them (exhibit 26). Mr Gregory and Mr Horton gave evidence together at the trial.

131 Both Mr Gregory and Mr Horton subjected the disputed signatures to microscopic and macroscopic examination.

132 Mr Briggs' signature is highly stylised, being in the nature of a hieroglyphic. That is to say, a person unfamiliar with the signature would not be able to say what name or names it represented.

133 The disputed signature appears to have been written using an ink pen. Both experts compared it with a number of signatures which were known to have been made by Mr Briggs.

134 It is a feature of Mr Briggs' genuine signatures that three downward strokes which they contain, terminate with a feathered or tapering end. It is clear, however, from the photographic enlargement of Mr Briggs' disputed signature that no such feathering or tapering appears in those downward strokes (exhibit 27).

135 Mr Horton's opinion was that there was a darkening of the terminal strokes in two cases. He attributed this to hesitation on the part of the writer.

136 Mr Horton supported his opinion by reference to a book by a Wilson Harrison who Mr Horton said was a recognised document examiner. Under the heading 'Hesitations', the author wrote:

A hesitation is the term applied to the irregular thickening which is formed when the writing slows down or stops whilst the penman takes stock of the position. Hesitations are found, not only in forgeries, but in the handwriting of the illiterate. In a forgery, they are found, not only at the ends of strokes, where they leave the line with a club-shaped instead of the tapered appearance found when the pen travels fairly fast as it comes on to or leaves the paper, but also in the middle of curves.

137 Against that, Mr Gregory's opinion was that the signature was written in a fluent manner, inconsistent with a forgery, and that the heavier ink deposits on the termination of the strokes were the result of capillary action of the ink flowing back along the stroke, as the pen slowed at the end of each stroke.

138 Mrs Briggs' signature is written in what Mr Gregory described as a conventional cursive style. That is to say, in a clearly legible script.

139 Mr Gregory compared Mrs Briggs' disputed signature with a number of signatures he understood to have been genuine. These included three signatures in a clearly different and more upright style, which Mr Gregory ignored for the purpose of his examination.

140 Mrs Briggs denied that the three upright style signatures were in fact hers. Her evidence to that effect was not challenged, leading to the inference that someone has forged Mrs Briggs' signature on more than one occasion.

141 Again, the point of difference between the experts was as to the fluency of the disputed signature. Mr Gregory's opinion was that the signature was written in a fluent manner which revealed no evidence of hesitation or patching, which are said to be common features of forged signatures.

142 Although Mr Gregory had only one comparison signature initially, he viewed sample original signatures which had been provided to Mr Horton. Mr Gregory's opinion that Mrs Briggs' signature was genuine was strengthened by his examination of the specimen signatures shown to him by Mr Horton.

143 Mr Horton's view was that Mrs Briggs' disputed signature lacked the smoothness and continuity of movement of the sample signatures, particularly in the lower parts of the capital letter 'B' and the other section of the letter 's' of the word Briggs.

144 Mr Horton noted also that there was an unusual formation in the upper part of the final letter 'g' of the word Briggs, which was inconsistent with the sample signatures. Finally, Mr Horton noted a 'distinct pen lift' in the final downstroke of the capital letter 'R' with which Mrs Briggs commenced her signature.

145 Mr Horton's overall conclusion was that the disputed signatures of both Mr and Mrs Briggs had been made by copying or tracing a genuine signature by the use of a transmitted light or similar commonly employed technique. This involved placing the document which was to be created, on top of a document bearing genuine signatures, which could then be copied on to it.

146 It is clear that there are variations in the genuine signatures of both Mr and Mrs Briggs: perhaps more so, in Mr Briggs' case. Further, Mr Briggs' specimen signatures appear to have been made using a ballpoint pen, whereas, as I have noted above, his disputed signature appears to have been made with an ink pen.

147 Mr Gregory considered one example of Mr Briggs' signature apparently written in an ink pen, on a letter dated 28 November 1996 to a Mr Bill Cairns. That signature did not exhibit the feathering on the three downward strokes which is a characteristic of Mr Briggs' ballpoint pen signatures. However, even though the specimen was supplied to Mr Gregory by the plaintiff's solicitor, Mr Briggs denied that it was his signature and his evidence was not challenged. The signature is quite different from Mr Briggs' normal style. Mr Horton described it as 'quite bizarre' (ts 497).

148 In providing their respective opinions, Mr Gregory and Mr Horton are necessarily confined to a comparison of signatures. However, it is open to me to take a broader view which involves a consideration of other evidence.

149 Given the unsatisfactory nature of Mr Lunt's evidence, the lack of any direct challenge to the evidence of Mr and Mrs Briggs that they did not sign the waiver of rights document and my finding that a document apparently signed by Mr and Mrs Briggs on 23 December 1992 was not a genuine document, I think it probable that the features of Mr and Mrs Briggs' disputed signatures identified by Mr Horton as distinguishing them from genuine signatures are explicable on the basis that the disputed signatures are not genuine.

150 In reaching that conclusion, I have had regard to Mr Bond's evidence that he had seen the document 'in real time back in 1995', although he could not recall the exact date (ts 574). That is not, of course, evidence that the document is genuine.

151 I therefore place no weight on the waiver of rights document.

Essex Properties' letter dated 12 April 1995

152 Mr Lunt relies further on a letter dated 12 April 1995, which he said was prepared by Mr Bond, Mr Pynt and himself to record the circumstances surrounding the payment of the $200,000 and the fact that the balance of $125,000 of the original loan of $325,000 was to be assigned to him personally. The letter is as follows (TB 283):

ESSEX PROPERTIES PTY LTD

ACN 009 088 751

LEVEL 1

216 ST GEORGES TERRACE

PERTH WA 6000

The Directors

Waste Recovery Systems Ltd

1502 Fook Lee Commercial Centre

33 Lockhart Road

Wanchal

Hong Kong

Dear Sirs,

By letter dated 23 December 1992 we acknowledged our indebtness [sic] to you in the amount of $A325,000.00.

We have not been able to settle the debt but William Trevor Lunt has now secured a fresh injection of capital into WRS Pacific Ltd that will allow WRS Pacific Ltd to remit the sum of A$200,000.00 to you leaving a balance of A$125,000.00 as due to you.

We are advised that you wish to assign that balance to Mr Lunt.

This is to confirm that upon receipt by you of A$200,000.00 from WRS Pacific Ltd that you may assign over to Mr Lunt, the balance of A$125,000.00, giving him all right, title and interest in the amount of A$125,000.00 with our full consent and without objection from us.

We acknowledge that the original debt attracts interest up until the amount of A$200,000.00 is received and thereafter the balance of A$125,000.00 until satisfied and that this interest accrues to the favour of Mr Lunt under the proposed assignment.

Our agreement to all of the foregoing is given on the understanding that the amount of A$125,000.00 plus accrued interest will not become due until July 1, 2000 when the settlement sum will then become due and payable.

153 The letter appears to bear the signatures of Mr and Mrs Briggs and the seal of Essex Properties.

154 Mr Lunt's evidence is that on 12 April 1995, at about 6.00 pm, he went again to the home of Mr and Mrs Briggs, and presented the letter to them. Mr Lunt said he saw them sign it and apply the company seal.

155 Again, Mr Lunt gave no details of the meeting. Mr and Mrs Briggs deny that it took place. They both point to diary entries which suggest that they would not have seen Mr Lunt at 6.00 pm on that day: they would have been preparing to go out to dinner with friends, who they were due to meet at 6.30 pm in Nedlands.

156 Neither Mr nor Mrs Briggs' evidence was challenged directly in cross-examination.

157 Mr Horton and Mr Gregory were agreed that the photocopy of the document which they had seen was of a poor quality which did not permit the authenticity of the signatures to be determined.

158 Mr Pynt's evidence was that he was sure he had not prepared the document, although the address given for Essex Properties was the address at which he was then practising. Mr Pynt said that he had never acted for Essex Properties and did not recall his premises being its registered office.

159 Accepting Mr Pynt's evidence as I do, I do not accept that he was involved in the preparation of the document, as Mr Lunt asserts.

160 I can see no basis for the statement in the document that 'the original debt' attracted interest until the amount of $200,000 had been received, and thereafter on the balance of $125,000. On the contrary, cl 11 of the 21 May 1991 agreement provided that the subordinated loan (of $325,000) was to be interest-free.

161 In all the circumstances, I accept the evidence of Mr and Mrs Briggs that they had not seen and did not sign the letter of 12 April 1995.

162 Mr Lunt produced an invoice from the Shangri-La Hotel, Singapore, which shows that he was a guest at the hotel from 21 to 24 April 1995. The invoice shows that at 22:09 hours on 23 April, Mr Lunt sent a fax to Australia.

163 Mr Lunt produced also a fax transmission verification report showing that four pages were faxed satisfactorily at 22:09 hours on 23 April to what is accepted to be Mr Briggs' home fax number.

164 Mr Lunt produced a handwritten facsimile transmission on the plaintiff's letterhead addressed to Mr Briggs at his home fax number and dated 23 April 1995. The text is as follows (TB 291):

HI PETE

$200K HAS CLEARED OK. I'M ON MY WAY HOME TO SETTLE WITH BANKS. THANKS FOR ALL YOUR HELP IN ARRANGING & AGREEING PAYMENT TO LOIS & ME. SEE YOU BEFORE ANZAC DAY.

BEST REGARDS

TREV

COPY DOCUMENTS ATTACHED

DEED OF ASSIGNMENT DATED 18/4/95 2 PAGES

CHEQUE

165 The deed of assignment referred to as an attachment is said to be a deed dated 18 April and made between WRSL and Mr Lunt (TB 288).

By purchase agreement dated 21st day of May 1991 [WRSL] became entitled to receive A$325,000.00, being part of the purchase consideration to be paid by the purchaser, [the plaintiff] to the sellers including [WRSL], a copy of the agreement is annexed hereto as Annexure 1.
[WRSL] has been unsuccessful in receiving payment and settlement from [the plaintiff].
[The plaintiff] has acknowledged it's [sic] indebtness [sic] to [WRSL] by letter dated 23rd day of December 1992 a copy of which is annexed hereto as Annexure 2.
The Assignee has facilitated a payment to [WRSL] in the sum of A$200,000.00 the receipt of which is herein acknowledged.
[WRSL] wishes to assign all right title and interest in the balance sum of A$125,000.00 plus the interest that has accrued to the sum of A$325,000.00 and the balance sum of A$125,000.00 to the Assignee.
The major and controlling shareholder in [the plaintiff], Essex Properties ... has consented to the assignment by agreement dated 12th day of April 1995, a copy of the agreement is annexed hereto as Annexure 3.

167 The operative part of the deed contained an assignment of the balance of $125,000 to Mr Lunt.

NEW RESOURCE HOLDINGS PTY LTD -v- LUNT [No 2] [2008] WASC 140 (16 July 2008)

At a glance

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Judgment (257 paragraphs)

NEW RESOURCE HOLDINGS PTY LTD -v- LUNT [No 2] [2008] WASC 140 (16 July 2008)

Cases Cited (2)