Nguyen v Phan

1 This is an unfortunate case. It involves a family who travelled to Australia from Vietnam in a situation of adversity. A number of the family members worked together to establish themselves in Australia, but, having succeeded in business, now find themselves in a bitter dispute.

2 In essence, the dispute concerns whether the first defendant and first plaintiff by counterclaim, Tu Phan (he prefers to be called "Thomas"),[1] agreed to share the ownership of a company business he established from around 2000 onwards. The plaintiffs' case is that Thomas agreed to this, and the manner by which it was to occur, by way of 3 separate agreements. The defendants deny the existence of the alleged agreements and contend the ownership has never been shared, has been wrongly taken from Thomas and, ultimately, Thomas has been improperly excluded from the business altogether.

3 The original business was established by a company incorporated by Thomas, namely the fourth defendant, Roo Sheetmetal Pty Ltd ("Roo Sheetmetal"). Roo Sheetmetal commenced manufacturing airconditioning ducts in approximately July 2001, in the south eastern suburbs of Melbourne. Roo Sheetmetal initially leased a factory located at 36A Cambria Road, Keysborough.[2]

4 On 3 September 2003, another company was incorporated, namely Oz Sheetmetal Pty Ltd ("Oz Sheetmetal"). From around 1 March 2004, Oz Sheetmetal conducted a like business to that conducted by Roo Sheetmetal. It was based in Sunshine North, principally so as to service customers in the west of Melbourne and beyond.[3]

5 On 16 June 2009, Oz Sheetmetal changed its name to Roo and Oz Sheetmetal Pty Ltd ("Roo and Oz Sheetmetal"). Roo and Oz Sheetmetal is the fifth plaintiff and fifth defendant by counterclaim. (Although it is the same entity, I will refer to this company as both "Oz Sheetmetal" and "Roo and Oz Sheetmetal", to accord with its name at the times in question.)

6 From 1 July 2009, the businesses previously conducted by each of Roo Sheetmetal and Oz Sheetmetal were effectively conducted as a single business by Roo and Oz Sheetmetal. In other words, Oz Sheetmetal's business continued to be conducted by the same company (albeit its name was Roo and Oz Sheetmetal), but Roo Sheetmetal wound down its trading operations from 1 July 2009, and its business was conducted by Roo and Oz Sheetmetal. The combined business has been successful.[4]

7 The agreements which the plaintiffs contend were entered into concern discussions in mid 2002 ("the 2002 Agreement"), around August 2003 ("the 2003 Agreement"), and around April and May 2009 ("the 2009 Agreement") (collectively "the Agreements").

8 It is an unfortunate case for a further reason. None of the parties maintained satisfactory records concerning agreements or arrangements entered into. To the extent that documentation was created at the relevant times, in some instances all parties contend for cases that, in significant respects, bear no resemblance to key documents. As a result, the court has been left with oral accounts of events that occurred many years ago with, on some occasions, little reliable contemporaneous documentation. Consequently, there is inherent uncertainty attaching to significant aspects of each of the competing cases.[5]

9 These difficulties were compounded by the manner in which some of the evidence was given at trial. The principal witnesses in this case were Thomas and his older sister, the second plaintiff and second defendant by counterclaim, Thuy Phan ("Thuy"). Neither of them was a satisfactory witness.[6] Both of them were willing to give evidence based on a reconstruction that suited their case. Further, the credibility of both of them suffered from their constant insistence (despite direction to the contrary) on not giving direct answers to questions put to them, and frequently and non-responsively telling their version of the case.

10 In short, in making the findings of fact in this case, I have been extremely circumspect about accepting the evidence of either of them at face value. It appeared that both of them believed they were morally in the right and were willing to give evidence to seek to achieve a particular result, rather than give wholly truthful evidence.

11 The relief sought by the plaintiffs is dependent upon them proving that each of the Agreements was entered into as alleged. Further, although it is not contended by the plaintiffs that any of the Agreements gave rise to a binding or legally enforceable contract, the plaintiffs' case depends upon them establishing that each of the Agreements resulted in an express trust being created by which the legal ownership of the shares in the relevant company was held on trust in accordance with the terms of the Agreements respectively. Consistent with the manner in which the case was put by the plaintiffs, many of the allegations in response were made on the premise that either the plaintiffs were entirely unsuccessful in establishing any of the Agreements or they were successful in establishing all of them.

12 For the reasons that follow, the plaintiffs have established that the 2002 Agreement and the 2003 Agreement were entered into in or about mid2002 and August 2003 respectively. By reason of this, beneficial interests were created in the shares of Roo Sheetmetal and Oz Sheetmetal, as alleged by the plaintiffs. However, the 2009 Agreement was not entered into in April or May 2009, or otherwise. Accordingly, the beneficial ownership of Roo Sheetmetal and Oz Sheetmetal remained unchanged from what was agreed in 2002 and 2003.

13 Another significant issue in the case was whether or not Thomas had a financial interest in a business conducted by Triangle Sheetmetal Pty Ltd, the second defendant and second plaintiff by counterclaim ("Triangle Sheetmetal"). Triangle Sheetmetal was incorporated on 5 October 2011 in Queensland.

14 For the reasons stated below, the plaintiffs have failed to establish that Thomas had any financial interest in Triangle Sheetmetal. The plaintiffs also failed to establish that Thomas breached any of his fiduciary duties with regard to his dealings with Triangle Sheetmetal. It must follow that the case against Triangle Sheetmetal for being knowingly involved in Thomas' breach of fiduciary duties must also fail.

15 The final statement of claim was filed by the plaintiffs on 18 February 2015 ("the Statement of Claim"). The final defence and counterclaim of the defendants was dated 23 February 2015 and filed on 2 March 2015 ("the Defence and Counterclaim"). The final reply and defence to counterclaim was dated 27 February 2015 and filed by the plaintiffs on 2 March 2015 ("the Reply").

16 Given the state of the pleadings and the manner in which the case was conducted, it is not appropriate for the court to seek to formulate any relief which might be granted, until hearing further from the parties.

17 Tuong Phan ("Tuong") and Thuan Lam ("Thuan") (together, "the Parents") lived in Da Nang in Vietnam where they married and had 12 children. One of those children died at a young age. The remainder ("the Phan Children") grew up in Vietnam. Before the communist government came to power in Vietnam, Tuong worked for the government.

18 In the mid1960s, the family left Da Nang, which was apparently then a communist stronghold, and relocated to Quang Tin. A few years later, the family moved to Chu Lai in search of work. In Chu Lai, Tuong found work as a storeman for the United States' army. After some time, the Parents bought a bakery and a pharmacy. At around the same time, the 3 older daughters made and sold clothes to assist the family, while the younger children all attended school.

19 In 1975, after some interaction with the communist government, the family fled. All members of the family left in 1 van. Having departed central Vietnam, the family moved to the south. They settled in a town called Long Khanh, about 80 kilometres from Saigon (now known as Ho Chi Minh City).[7]

20 In Long Khanh, the family purchased a small farm and grew rice. Thuy, the seventh child, was unable to finish her schooling because she had to work on the farm. Then, after a year and a half, Thuy and another daughter set up a small coffee and dessert shop. At this time, Thomas (who is the ninth child and 5 years younger than Thuy) still attended school.

21 The coffee and dessert shop that Thuy ran, ultimately with 2 of her sisters, was successful. Thuy worked hard in the years 1975 to 1980, supporting the family and enabling the younger children to finish their schooling. It was mainly from the proceeds of the shop that the family was able to afford a boat, which would later enable some of the family to leave Vietnam.

22 In 1978, Tuong had raised with the family the idea that they should escape from Vietnam by boat. In 1979, a boat was purchased, and the family spent a year restoring the boat so that it would be fit for travel. The timing of the departure had to be hastened, as the sixth child, Son Phan ("Son"), was conscripted to fight for the Vietnamese army in its war with Cambodia. Son is the third plaintiff and third defendant by counterclaim.

23 By 1980, the family was ready to implement an escape. Detailed preparations were made, which involved others. Although the boat was designed for only 79 or 80 people, 164 boarded the boat. It was agreed 6 siblings would depart. Son, Thuy and Thomas were amongst them. Others stayed behind. This allowed the coffee shop to remain open, and was done to create the impression that nothing had changed. The Parents also stayed behind.

24 In July or August 1980, the boat left Vietnam. The boat trip lasted 5 days and 5 nights, enduring a large storm, and 3 attacks from pirates. It reached Changaroo, Malaysia. The Phan siblings stayed in an immigration camp in Malaysia for approximately 6 weeks. During this time, Thuy looked after her younger siblings, including Thomas; in effect she took over the role of mother.

C. The Phan family progressively settle in Australia

25 Australia accepted the Phan siblings into its refugee program. Towards the end of 1980, they arrived in Australia.

26 The Phan siblings initially settled in Hobart and began to learn English. Some became more proficient with English than others.

27 Thomas and the younger children went to school. Thuy worked at a nursery, earning about $142 per week. From that income, Thuy bought clothes and food for the family. It was apparently a happy time and the siblings stuck together. The Catholic Church lent the family money for the purchase of a home. Initially, it appears they all lived in the home that was purchased.

28 Son worked in a bakery in Hobart, but after approximately a year and a half he moved to Sydney for work and to help repay the loan. Son worked 7 days a week. Also, at a time which is unclear, the fourth child, Tru, moved to Melbourne. After some time, Tru worked in the sheetmetal industry, and gained know-how concerning airconditioning ductwork fabrication.

29 Thuy stayed in Hobart to look after the children, including Thomas, and to raise them. She continued to work full time in the nursery.

30 In about 1987, Tru called Thuy and asked her to move to Melbourne to look for a better job. Thuy agreed to do so. Son had already moved to Melbourne, from Sydney, in 1986.

31 Thomas, meanwhile, had gone to Launceston to study marine engineering. While in Launceston, Thomas stayed with a local family. He would return to Hobart on the weekends.

32 Thuy borrowed $5,000 from Son to buy an over-locking machine and a sewing machine. Thuy then borrowed $25,000 from a family friend. They became partners in a sewing business in Brunswick, a suburb of Melbourne. Within 2 years, Thuy and her business partner had managed to build up the sewing business so that it had around 20 employees, and Thuy was able to repay the business loans.

33 In 1989, the Parents left Vietnam and moved to Melbourne. The family all lived together in a double-storey house in Keysborough that Son had purchased.

34 In around 1990, Thomas completed his bachelor of marine engineering in Launceston. He began working on ships, for weeks on and then weeks off. On the weeks off, Thomas would come to Melbourne and stay in what had become the family home in Keysborough. Thomas married Thuy Tran (known as "Tina"). Tina would stay in the Phan family home rent free, while Thomas worked on the ships. This continued until Thomas and Tina purchased their own house in Noble Park.

35 In the early 1990s, Thuy set up a new sewing business based in North Melbourne.[8]

36 In 1992, Thuy and Trung Nguyen ("Trung") married. In January 1994, Thuy and Trung had a baby and sold the North Melbourne sewing business. As a result of conducting the sewing businesses, Thuy came to learn "a bit about bookkeeping". However, neither then nor later did Thuy become proficient with accounting or computers.

37 The familial relationships relevant to the proceeding are intricate. It is necessary to discuss further the connections and arrangements.

38 Annexure "A" to this judgment is a family tree ("the Family Tree"). The Family Tree records, amongst other things, the names and dates of birth of the relevant members of the extended Phan family. The persons shaded green gave evidence for the plaintiffs. Those shaded orange were witnesses for the defendants.

39 Tuong was born on 2 June 1925 and Thuan was born on 2 October 1928. By the time the Parents had moved to Australia in 1989, most of the Phan Children had already immigrated to Australia. At the time of the events relevant to the proceeding, the Parents lived in Hampstead Road, Maidstone, Victoria.

40 Neither of the Parents gave evidence in the proceeding. However, it is clear from evidence given by other members of the Phan family that the Parents have been, and remain, an important part of the extended Phan family.

41 Of the 11 Phan Children, 7 are involved, either directly or indirectly, in the proceeding. The relevant individuals are (in order from eldest to youngest): Tru, the fifth child Danh Phan ("Danh"), Son, Thuy, the eighth child Tinh Phan ("Tinh"), Thomas and the youngest child Nga Phan ("Nga") (together, "the Relevant Children").

42 Tru, Danh, Tinh and Nga, although involved in some of the relevant events, are not parties. Tinh and Nga's involvement includes the fact that each of their spouses, namely Hoa Nguyen (he prefers to be called "Joseph") and Minh Nguyen ("Minh") respectively, are plaintiffs and defendants by counterclaim.[9]

43 For convenience, in summary, Minh, Thuy, Son and Joseph are each plaintiffs and Thomas is a defendant. I will refer to these individuals collectively in the judgment as "the Family Members". Roo and Oz Sheetmetal is the remaining plaintiff. Triangle Sheetmetal and Roo Sheetmetal are the remaining defendants.

44 Son was born in 1959. Son is married to Thuy Tran and together they have 2 children. Shortly after Son moved to Melbourne in 1986, he was employed full time as a diecast machine operator with Australian Die Casting Company, where he remained until 2007. As well as working full time, from 1995 to 1999 Son also worked part time at Double T Sheetmetal Pty Ltd ("Double T Sheetmetal").

45 Until approximately 2012, Son and his family lived in Leonard Avenue, Noble Park, Victoria. They now live in Mayfield Drive, Keysborough, Victoria.

46 Son is presently employed as a production manager at Roo and Oz Sheetmetal.

47 Son gave evidence at trial in relation to (amongst other things): his involvement and employment part time from 1995 to 1999 at Double T Sheetmetal,[10] Roo Sheetmetal, Oz Sheetmetal, and Roo and Oz Sheetmetal; the Agreements; and the circumstances surrounding Thomas' exit from Roo and Oz Sheetmetal.

48 Thuy was born in 1960. Thuy and Trung have 2 children.

49 Thuy and her family live in Village Way, Maribyrnong, Victoria. They have lived at that address since around 2009. However, between around 2002 and 2004, Thuy and Trung experienced some problems in their marriage. As a result, Thuy lived periodically with her sister Nga, and Minh, in Saltwater Crescent, Maribyrnong, Victoria.[11] Thuy was close to Nga and Minh. She was also close to her other siblings at the time.

50 Some of Thuy's employment history is set out above. That history demonstrates that, by 2002, she had some experience in business. However, she had only limited computer and accounting skills at that time.

51 Thuy is employed by Roo and Oz Sheetmetal and is also a director of that company. Trung is not a party to the proceeding. He was not called as a witness at trial.

52 Thuy gave extensive evidence at trial in relation to (amongst other things): the Phan family's immigration to Australia; her involvement in the affairs of each of Roo Sheetmetal, Oz Sheetmetal, and Roo and Oz Sheetmetal; the Agreements; and the circumstances relevant to Thomas' exit from Roo and Oz Sheetmetal.

53 Thomas was born on 12 July 1965. Thomas and Tina have 3 children.

54 Since early 2009, Thomas and his family have lived in Latrobe Street, Hughesdale, Victoria. Before this time, Thomas and Tina lived in Wilela Court, Noble Park, Victoria.

55 Thomas is the sole director of both Roo Sheetmetal and Mega Sheetmetal Pty Ltd ("Mega Sheetmetal"). Mega Sheetmetal was the third defendant and third plaintiff by counterclaim. On 17 December 2014 (ie the fourth week of the trial), the plaintiffs informed the court they no longer pursued any claim against Mega Sheetmetal. Consequently, Mega Sheetmetal was removed as a party to the proceeding. Thomas was never a registered director of Oz Sheetmetal (or Roo and Oz Sheetmetal).

56 Thomas gave extensive evidence at trial in relation to (amongst other things): the establishment and affairs of various sheetmetal companies in Australia, including Double T Sheetmetal, Roo Sheetmetal, Oz Sheetmetal, Roo and Oz Sheetmetal and Triangle Sheetmetal; the establishment and affairs of various duct and airconditioning companies in Vietnam, including Thuan Phuoc Co Ltd ("Thuan Phuoc") and Xuyen Viet; the Agreements; and the circumstances surrounding his exit from Roo and Oz Sheetmetal.

57 Tina was born on 21 July 1970. Tina is not a party to the proceeding, but she was called as a witness by the defendants.

58 Tina gave evidence in relation to (amongst other things): the establishment of Roo Sheetmetal; Thomas' involvement in Double T Sheetmetal and Roo Sheetmetal; the 2002 Agreement; and the circumstances surrounding Thomas' exit from Roo and Oz Sheetmetal.

59 Linh Cong Tran ("Linh") is Tina's older brother. He was born on 5 July 1967. Linh lives in Da Nang City, Vietnam. Linh is not a party to the proceeding. He was called as a witness by the defendants.

60 Linh gave evidence at trial in relation to (amongst other things): his relationship with Thomas; the establishment of Thuan Phuoc and Xuyen Viet in Vietnam; and Thomas' involvement in each of those companies.

61 Chinh Cong Tran ("Chinh") is Tina's and Linh's first cousin. He was born on 2 November 1978. Chinh also lives in Da Nang City, Vietnam. Chinh is not a party to the proceeding. He was called as a witness by the defendants.

62 Chinh gave evidence at trial in relation to (amongst other things): his involvement in Thuan Phuoc and Xuyen Viet; and the working relationship between Thuan Phuoc and each of Roo Sheetmetal, Oz Sheetmetal and Triangle Sheetmetal.

63 Nga was born on 30 November 1968. As already noted, she is not a party to the proceeding and did not give evidence. Her husband, Minh, was born on 2 October 1965 in Vietnam and arrived in Australia as a refugee in 1984. Minh is employed by, and is a director of, Roo and Oz Sheetmetal. Together Nga and Minh have 2 children.

64 In Australia, Minh completed his high school education. In 1987, he studied for a bachelor of electronic engineering degree, but after a year transferred to maths and computing, a degree he completed in 1992. In contrast to the other family members who gave evidence, Minh speaks very good English.

65 Until approximately 2011, Minh and his family lived in Saltwater Crescent, Maribyrnong, Victoria. Since that time, Minh and his family have lived in Market Street, Essendon, Victoria.

66 Minh gave extensive evidence at trial in relation to (amongst other things): his involvement in each of Roo Sheetmetal, Oz Sheetmetal, and Roo and Oz Sheetmetal; the 2003 and 2009 Agreements; and the circumstances relevant to Thomas' exit from Roo and Oz Sheetmetal.

67 Tuanh Nguyen ("Tuanh") is Minh's niece. Tuanh was born on 19 June 1983. She lives in Deer Park, Victoria. Tuanh is not a party to the proceeding. She was called as a witness on behalf of the plaintiffs.

68 Tuanh is a senior associate in the corporate department of the law firm Baker & McKenzie (who are also the solicitors for the plaintiffs in the proceeding). Tuanh has worked at Baker & McKenzie since commencing as an articled clerk in March 2006. She was admitted to practice in 2007. Tuanh was appointed a senior associate on 1 July 2011. In this proceeding, she facilitated communications between the plaintiffs and the litigation lawyers at Baker & McKenzie.

69 Tuanh gave evidence at trial in relation to (amongst other things): her involvement in the proposed "merger" of the businesses of Roo Sheetmetal and Oz Sheetmetal; and, in particular, the 2009 Agreement.

70 Tinh was born on 8 June 1963. She is not a party to the proceeding and did not give evidence. Her husband, Joseph, was born on 19 October 1967 in Vietnam. He immigrated to Australia in 1984, and initially lived in Sydney. After marrying Tinh in 1989, Joseph moved to Melbourne and started work as a mechanic. Initially, Thuy lived with them in Brunswick.

71 In 1991, Joseph purchased an existing motor mechanics business, trading as "P & Son Auto Repairs". Thomas, Thuy and Tru each invested $5,000 in the business. When Thomas was not working on a ship, he would assist Joseph. Thomas sold his share in the business to Joseph in around 1995 or 1996. Joseph sold the entire business in August 1998 for $35,000, inclusive of stock.

72 Joseph is a manager at, and a director[12] of, Roo and Oz Sheetmetal. Tinh and Joseph live in Village Way, Maribyrnong, together with their children.

73 Joseph gave evidence at trial in relation to (amongst other things): his involvement in Double T Sheetmetal, Roo Sheetmetal, Oz Sheetmetal, and Roo and Oz Sheetmetal; the Agreements; and the circumstances surrounding Thomas' exit from Roo and Oz Sheetmetal.

D.4.1 The remaining Relevant Children: Tru and Danh

74 Tru was born on 20 June 1954. Tru is not a party to the proceeding. He did not give evidence at trial.

75 Tru was, however, the subject of evidence of both sides in the proceeding in relation to his involvement in and ownership of Double T Sheetmetal.

76 Danh was born on 17 May 1957 in Vietnam and immigrated to Australia in 1980. Danh lives in Oak Park, Victoria. He is an accountant and a director of Phan Campbell & Associates, an accounting practice he founded in 1994. Danh is not a party to the proceeding. He was called as a witness by the defendants.

77 Danh acted as accountant for Roo Sheetmetal from its inception. Upon the incorporation of Oz Sheetmetal, Danh also acted as its accountant. Danh no longer does any work for either company.

78 Danh gave evidence at trial in relation to (amongst other things): the creation and lodgement of documents, and the preparation of accounts, reports and tax returns, for various entities associated with the Phan family, including the Phan Family Trust, the PN Unit Trust, Roo Sheetmetal, Oz Sheetmetal, Roo and Oz Sheetmetal and PN & Nominees Pty Ltd ("PN & Nominees"). PN & Nominees is the sixth defendant by counterclaim, and is the trustee of the PN Unit Trust.[13]

79 Vien Phan ("Vien") is the Phan Children's cousin. He is the son of Tuong's younger brother. Vien was born in Vietnam on 27 November 1976. He now lives in Sunshine West, Victoria and works at Roo and Oz Sheetmetal as an estimator.

80 Vien is not a party to the proceeding. He was called as a witness by the plaintiffs. Vien gave evidence at trial regarding his relationship with Thomas and his involvement with Thuan Phuoc and Xuyen Viet in Vietnam.

81 Like Vien, Dao Phan (also called "Francis") is the Phan Children's cousin. Francis was born on 7 December 1978. He is employed by and is a director and shareholder of Triangle Sheetmetal.

82 Francis is not a party to the proceeding. He did not give evidence. Francis was the subject of evidence given at trial, in particular, in relation to: his relationship with Thomas; his involvement in each of Roo Sheetmetal, Oz Sheetmetal, Roo and Oz Sheetmetal and Triangle Sheetmetal; and his involvement in the circumstances leading up to Thomas' exit from Roo and Oz Sheetmetal.

83 Tu Nguyen ("Uncle Tu") is not a member of the Phan family. However, he is referred to by Thomas as "Uncle Tu".

84 Uncle Tu was born in Vietnam on 12 August 1927. He worked for many years in different roles, including as a bookkeeper, with the South Vietnamese army.

85 In 1993, Uncle Tu immigrated to Australia, together with his wife and an adopted child. Thomas acted as Uncle Tu's sponsor for the purposes of his application for immigration. During 2009, Uncle Tu assisted Thomas with the renovation of Thomas and Tina's house in Hughesdale.

86 Uncle Tu was not a party to the proceeding. He was called as a witness by the defendants. Uncle Tu gave evidence at trial in relation to (amongst other things): his relationship with Thomas, his renovation of the house in Hughesdale and the preparation of exercise books in which he kept records relevant to the renovation.

87 As stated above,[14] PN & Nominees is the trustee of the PN Unit Trust. In early 2003, Thuy approached Danh and asked Danh to arrange the establishment of PN & Nominees. Thuy did not explain to Danh the purpose of incorporation. No one other than Thuy gave instructions to Danh. Thuy flatly denied giving instructions to Danh concerning PN & Nominees and the PN Unit Trust. She also asserted Danh explained the proposal to "all the siblings".[15] Much of her evidence on this topic was non-responsive and conclusory. It was not credible. Indeed, some of the evidence must be treated as a complete fabrication. The plaintiffs' counsel put none of Thuy's evidence on these matters to Danh when he was in the witness box.[16]

88 According to Thuy, it was Minh's idea to set up the PN Unit Trust.[17] This appears to be correct. Broadly, it was supported by Minh's and Joseph's evidence. Minh said it was both his and Thuy's idea. At the time, Minh said the strategy was to reduce tax.[18] Joseph said Minh or Thuy made the suggestion. Joseph also said the incorporation of a company was discussed in or before March 2003, and that all the Family Members were present. In substance, Joseph's evidence was supported by Thuy and Minh. I accept this evidence. The family met regularly. Although there was no precision as to exactly when or where such discussion took place, it is highly likely that such things were discussed at family gatherings.

89 PN & Nominees was incorporated on 24 March 2003. The registered office and principal place of business was Minh's home address in Saltwater Crescent, Maribyrnong. The defendants seem to suggest the use of this address was part of the covert operation being put in place. I reject this submission. Minh was a director. Further, in 2003, Thuy spent much of her time living at Minh's home. In the circumstances, where Thuy was responsible for looking after the financial affairs of the family business, Minh's home address was an obvious address to choose.

90 Shortly after incorporation, on 28 March 2003, PN & Nominees was appointed as the trustee of the PN Unit Trust. The trust deed was executed by each of Trung (as trustee for the Village Family Trust, being the family trust of Trung and Thuy),[19] Minh (as trustee for the Nga Phan Family Trust), Joseph (as trustee for the Vincent Family Trust), Thomas (as the sole trustee for the Phan Family Trust) and Son (as trustee for the Phan Family Trust).[20] Each of the trustee signatures was witnessed by Danh.[21]

91 Thomas and Minh were appointed as the directors of PN & Nominees. They both ceased to hold this position on 1 September 2003, and were replaced by Joseph. Danh could not recall why this occurred. Joseph said it occurred with the agreement of Thuy, Son, Thomas and Minh, but he could not recall the details of any discussion, when it occurred or why it was agreed. Minh suggested it was because the other Family Members (except for Son) were registered as directors and shareholders of the other companies, so it was decided Joseph should have a similar position for PN & Nominees. This appears to be a logical explanation.

92 Minutes of a meeting of the board of PN & Nominees, signed by Joseph, documented the resignations and his appointment. Joseph could not recall whether the meeting occurred. Later, consistent with Joseph's appointment as the sole director, bank statements were directed to Joseph's home address. This was done by Thuy. Joseph said it was done, after discussion among all the Family Members, just for convenience, but he could not recall any details.

93 In his evidence in chief, Thomas said he was unaware he had been a director of, and had never heard of, PN & Nominees or the PN Unit Trust. He suggested the first time he became aware of PN & Nominees was during discussions with his lawyer in 2013. This is difficult to reconcile with the fact that he signed a consent to act as a director of PN & Nominees dated 24 March 2003. Thomas accepted that, by putting his signature on the consent form, he was holding himself to the document he had signed, and that, by so doing he had accepted becoming a director. His explanation for signing the consent form was that he signed it because Thuy told him to.

94 But this does not explain away his assertion he had never heard of PN & Nominees before 2013. The explanation has even less weight given Thomas' signature on the PN Unit Trust Deed dated 28 March 2003. The signature page refers expressly to PN & Nominees. Thomas also signed various other documents that expressly referred to PN & Nominees or the PN Unit Trust, or both.[22] The circumstances in which these documents were signed, as footnoted below, also lead me to reject Thomas' alleged lack of knowledge of PN & Nominees or the PN Unit Trust.

95 It is unnecessary to go in detail through each and every document Thomas signed referable to PN & Nominees and the PN Unit Trust. By way of illustration of Thomas' unsatisfactory evidence concerning documents he signed, I refer to a guarantee and indemnity signed by Thomas in November 2009, in favour of National Australia Bank Limited ("National Australia Bank") by which the guarantor (who included Thomas and PN & Nominees) guaranteed performance of the obligations of Roo and Oz Sheetmetal.

96 When taken to this document, Thomas said he understood that signing a guarantee was a serious matter and that the guarantors would have to pay the debt if the company could not pay. When it was put to him that he understood that in 2009, Thomas first answered "2009?". When it was put to him again he answered "I can't recall it". When Thomas was then asked when he first learnt what a guarantee meant, he gave a non-responsive answer. When pressed with the same question, he accepted he learnt what a guarantee was in 1992. He then accepted he knew what a guarantee was in 2009.

97 Next, Thomas was taken to his signature on the guarantee that he executed in November 2009. That signature was immediately below the words "Signed, sealed and delivered as a deed by the guarantor" and had the words "Guarantor's signature" in bold immediately below the signature. Thomas acknowledged it was his signature, but when it was put to him that he knew he was agreeing to sign as a guarantor when he signed the document, he answered "no". In rebutting the suggestion that he knew, he said that normally Thuy told him where to sign. However, his signature was witnessed by a bank officer, not Thuy. Thomas said he remembered the bank officer signing her name as a witness after he signed. Whether or not the bank officer explained the document to Thomas (which Thomas said she did not), I do not accept that Thomas did not appreciate he was signing a guarantee in these circumstances.

98 This evidence was typical of Thomas seeking to avoid giving direct answers to questions concerning documents that he signed from time to time.

99 Another relevant document concerning PN & Nominees recorded Thomas resigning as a director on 1 September 2003. This document contained a signature above Thomas' name. In the defendants' closing submissions, they stated that Thomas was adamant that the signature on his purported resignation was not his signature. This did not accurately reflect the evidence.

100 Under cross-examination, when first taken to the document, Thomas denied it contained his signature. When asked if he knew whose signature it was, Thomas that the first part of the signature was his but the end part was not. Having reviewed many signatures of Thomas that appear throughout the court book, it is clear that the first part of the signature on this page strongly resembles Thomas' signature.

101 When Thomas gave these answers, senior counsel for the plaintiffs declined to cross-examine on the issue further without obtaining instructions. Later, having obtained those instructions, he again pressed that Thomas had signed the document. Thomas disagreed stating that the signature finished in the wrong way. Based on this evidence, I cannot be satisfied that Thomas signed the document. However, I am equally not satisfied that someone purported to sign on his behalf. The strong resemblance of the first part of the signature to Thomas' signature cannot be ignored. Further, senior counsel for the defendants did not put to any witness that the document had been falsely signed on behalf of Thomas.

102 Not all documents recording Thomas' involvement in PN & Nominees are probative of Thomas' knowledge. For example, minutes of a purported meeting between Joseph (as chairperson), Minh and Thomas, recording the appointment of Joseph as a director of PN & Nominees, together with the resignations of Minh and Thomas, do not satisfy me that the meeting ever occurred. When taken to the minutes, Joseph said he could not recall the meeting, but it had occurred because he signed he minutes. When pressed, he repeated he could not recall any such meeting. Minh gave no evidence of attending any meeting consistent with the minutes.

103 In the circumstances, there is substance to the defendants' submission that the meeting as recorded in minutes dated 1 September 2003 was "a paper fiction". I am not satisfied the meeting occurred. However, I reject the submission that "there were no consultations with Thomas as to the changes to the corporate structure of PN & Nominees". The weight of the evidence compels a contrary conclusion.

104 Another reason for rejecting Thomas' evidence as to his lack of knowledge of PN & Nominees is that the family then enjoyed an entirely harmonious and cooperative relationship.[23] Further, to the extent the defendants were suggesting that Minh and Thuy were seeking to deprive Thomas or Roo Sheetmetal of assets he or it owned, if that were the plan, it made little sense to have Thomas sign a consent to act as a director of the company he was supposed to know nothing about. There was no need to have Thomas as a director of the trustee, in addition to having him sign the trust deed.

105 Furthermore, it is not insignificant that, when Thomas tell out with the other Family Members and retained a solicitor in about late July 2012, the solicitor was "searching everything", and that the searches conducted included a search of PN & Nominees (8/3932).[24]

106 The issue of Thomas' knowledge of PN & Nominees and the PN Unit Trust cannot be completed without a reference to the manner in which Thomas gave evidence on the topic when it was first addressed in cross-examination. When asked when he first heard of PN & Nominees, Thomas stated he did not know "anything about that, the trust or anything". When asked why he referred to the trust when asked about PN & Nominees, Thomas responded "what do you mean trust". The following exchange then took place:

When I asked you, when did you first hear about PN & Nominees, do you remember, just now?---I don't remember that.

You don't remember me just asking you one minute ago when you first heard of PN & Nominees?---No, no.

I do not accept that Thomas had failed to remember a question asked of him only 3 questions previously. In giving the evidence that he did, Thomas was being deliberately evasive.

107 In summary, the evidence shows that from around March 2003 the Family Members were involving Minh in some way.[25] At this time, Thomas also wanted to help his youngest sister, Nga. With these objectives in mind, Thomas agreed to the PN Unit Trust being established and for each of the Family Members to be involved.

108 On 2 June 2005, the Phan United Family Trust was established, with Thomas, Thuy, Son, and Joseph appointed as trustees.[26] Each of them executed the trust deed.

109 Consistent with some other evidence given by Thomas concerning documents that he signed, when first taken to the deed, Thomas indicated a complete lack of knowledge of the circumstances in which the Phan United Family Trust deed was executed. Thomas said he was not familiar with the trust.

110 When it was put to Thomas that it was his idea to set up the trust, he said he did not know anything about it. Thomas said that it could have been Thuy's idea, but he did not know whose idea it was. In contrast, Thuy said it was Thomas' idea.

111 Thuy's evidence was supported by Joseph. It was put to Joseph in cross-examination that it was Thuy's idea. Joseph rejected this, stating it was Thomas' idea as Thomas had said at the time that Thomas wanted to purchase properties through a trust. This was consistent with Thuy's evidence that Thomas wanted to be able to take money from Roo Sheetmetal as rent.

112 I do not accept Thomas' account of his level of knowledge. Thomas was plainly sufficiently proficient in reading English to have graduated successfully in his tertiary studies in Launceston many years before. The exams he passed were both oral and written, and in English. Since graduating in 1990 and before establishing Roo Sheetmetal, Thomas had worked on a ship and worked at Double T Sheetmetal speaking with co-workers, customers and suppliers in English.

113 Notwithstanding this background and that Thomas had been living in Australia for over 30 years, when his defence was filed in this proceeding ("the Original Defence"),[27] it contained an allegation that Thomas had a limited grasp of written English. This allegation was subsequently withdrawn.

114 Thomas gave his evidence in English. Although his English was not perfect, generally speaking, Thomas appeared more than capable of understanding what was being put to him. Also, when Thomas needed to read and respond to documents in English in the witness box, he was able to do so.[28]

115 His bare assertion that he was not familiar with the Phan United Family Trust, or the execution of the deed was not credible. By this stage, he had previously signed trust deeds.[29] Further, it was he who arranged for the document to be witnessed by a friend of his; this was not a case where Thomas simply signed a document by placing his signature where he was asked to sign. When pressed, Thomas acknowledged that he would have had to ask his friend to come to witness the document. Thomas volunteered that Thuy did not know the friend.

116 Furthermore, properties were purchased after the trust was created in accordance with Thomas' plan. It is hard to accept that Thomas could have no idea that such transactions, involving large sums of money, occurred without Thomas having any understanding at all as to how the properties were to be owned. On the contrary, Thomas was actively involved in the decision-making concerning the purchase of property and the decision to pay rent, and the implementation of such decisions. In addition, Thomas himself was involved, at least once, in giving written instructions on behalf of the Phan United Family Trust.[30]

117 Moreover, Thomas executed documents referable to the property dealings of the Phan United Family Trust over an extended period of time. As late as November 2011 and February 2012, Thomas signed such documents relating to substantial sums of money.[31]

118 It should be noted that, before giving his evidence, Thomas appears to have instructed his counsel that it was Thuy's idea to have the Phan United Family Trust established. During the cross-examination of Joseph, Thomas' counsel specifically put to Joseph that Thomas' evidence would be that it was Thuy's idea.[32] I expect that, in a case of this size, Thomas had forgotten his previous instructions to his counsel by the time it came for him to give his evidence. In any event, the apparent previous inconsistent instructions of Thomas seriously undermined his initial attempt to suggest he knew nothing about whose idea it was to establish the Phan United Family Trust.

119 The trust deed was revisited in around 2007. Some of the names of the specified beneficiaries had been misspelt in the original deed. Thomas initialled these corrections. These initials were placed on a document already executed by all the parties. If Thuy or others were seeking to conceal what was going on, it seems highly unlikely they would reintroduce Thomas to a document already executed. Thomas agreed in cross-examination that he had initialled the document and, although he could not recall doing that, he accepted he had initialled a change to correct a spelling mistake.

120 Subsequently, a further trust deed was prepared in which the specified beneficiaries were included with their names typed correctly. Different solicitors were used to those who had prepared the previous deed. Thuy suggested she did not give instructions to create a new deed.[33] This version of the trust deed, which was executed on or about 20 February 2007, recorded Thuy as the only trustee. Thuy could give no explanation for this other than it was a mistake. This trust deed was only executed by Thuy, Son and an accountant. There were no documents produced which suggested any of Son, Thomas or Joseph had resigned as a trustee.

121 Son was asked no questions about the circumstances in which he signed this document. Joseph was cross-examined as to why he was not recorded as a trustee. His response was, incorrectly, that it was a different trust. He said he recalled some explanation by Thuy that there were problems with the names, but he could not recall why there had been a change in the trustee name. No determination is required in this proceeding concerning the validity or otherwise of the deed executed on 20 February 2007.

122 Finally with respect to Thomas' knowledge, he attended a meeting in late April or early May 2009 at which the Phan United Family Trust owning land was specifically referred to.[34] There was no suggestion from any witness that Thomas expressed any surprise about the existence of the trust.[35]

123 Before leaving this topic, I refer to a document signed by Thuy purporting to record a meeting of the "Trustee of The Phan United Family Trust". It has a date stamped on it of 18 May 2012. It concerns the distribution of investment income. The "minutes of meeting" recorded Thuy, Son, Thomas and Joseph were present. The meeting never occurred. When Thuy was confronted with this suggestion, she said it was because they could not find Thomas. When asked when she was provided with the document, she could not say.[36] Whenever the document was provided, the position was unsatisfactory.

124 To understand the dynamics and the context of communications between the Family Members in this proceeding, it is necessary to appreciate the closeness of the family before the matters in dispute arose. Speaking generally, the Family Members (and others) would get together every 2 weeks or so. These were not formal occasions. There would be more at some gatherings than others. However, not infrequently, all of the Family Members would meet with their respective partners. At these family gatherings there would often be informal discussions about the family business.

125 Accordingly, without being specific, it is highly likely that many matters were discussed on numerous occasions in the lead-up to the discussions that were relied upon in this proceeding.

E. Overview of the witnesses and their evidence

126 The lack of reliable contemporaneous documentation, and the considerable lapse of time between the relevant events and the trial, necessarily requires the court to make a careful assessment of the credibility and reliability of each of the key witnesses. Accordingly, I will make some further observations in this regard before turning directly to the issues in the case.

127 The approach the court is to take in assessing the evidence is helpfully summarised in the following passage:[37]

[T]o assess the evidence ... by reference to various individually-pleaded particulars, as though running through items on a check list, is apt to mislead. The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details.

(Emphasis added.)

128 As already noted,[38] Thuy was a most unsatisfactory witness. Notwithstanding constant directions during cross-examination from senior counsel, and occasionally from the court, Thuy repeatedly refused to give direct answers to simple questions. Further, she often defiantly insisted or sought to be able to tell her "story", rather than confine her evidence to the questions asked.

129 It was not only the manner in which Thuy gave evidence that was unsatisfactory. On occasion, there were contemporaneous documents that were inconsistent with the evidence she gave. Often when she was confronted with this contradiction, she simply explained away the documents as being wrong or a mistake. Whilst such an explanation is possible, often no satisfactory further explanation was given as to why so many documents were inconsistent with the evidence Thuy gave in court.

130 In summary, Thuy was a witness who was convinced that she was entitled to maintain her interest in each of the companies in question as pleaded, along with the Family Members. When she thought it necessary, she tailored her evidence to support this position.

131 It does not follow from what is stated above that all of the evidence of Thuy necessarily ought to be rejected by the court. However, based on the above matters, a great deal of care needs to be afforded to considering the probative value of the evidence given by Thuy.

132 Consistent with the approach taken by Thuy, when Minh gave evidence he would often advance the case of the plaintiffs, rather than directly answer questions put to him. He persisted with this approach throughout the days that he gave evidence, notwithstanding directions to the contrary.

133 Another characteristic of the evidence of Minh was to constantly purport to give evidence on behalf of all of the plaintiffs. Frequently, when asked questions about his position, he would only respond in terms of asserting an agreed position of all of the plaintiffs, rather than what he had said or done. Again, he chose to ignore directions that he confine his evidence to answering the question directly, rather than seeking to advance the plaintiffs' case.

134 As time went on, it was Minh who, in close consultation with Thuy, was largely responsible for directing how the affairs of Roo and Oz Sheetmetal would be conducted. By 2012, he considered himself as the effective "boss" and did not tolerate dissention. He stated that this proceeding was issued because he wanted to protect Roo and Oz Sheetmetal from Thomas. This appeared to have very little, if any, plausibility in circumstances where, at the time this proceeding commenced, Thomas was no longer working for Roo and Oz Sheetmetal and was not conducting any business in Victoria.

135 Minh believed Thomas was involved in the business of Triangle Sheetmetal in Queensland. Indeed, at 1 point, Minh agreed the whole reason for commencing the proceeding was to stop Thomas from assisting Francis to establish Triangle Sheetmetal. Roo and Oz Sheetmetal did not do, and has never done, any business in Queensland. There was no real threat to the business of Roo and Oz Sheetmetal by reason of any conduct of Thomas in relation to Triangle Sheetmetal in Queensland.[39] There was no suggestion that Triangle Sheetmetal intended to do business outside Queensland.

136 Although Minh suggested that, in around 2011, Roo and Oz Sheetmetal hoped to start a business in Queensland some time in the future, no decision had been made then, or at the time of trial, to take such a course. When Minh was asked directly as to when a decision was made to expand to Queensland, he did not give a responsive answer. Minh did not suggest that Thomas was ever told of or involved directly in any decision of Roo and Oz Sheetmetal to expand to Queensland. There was no paperwork at all to corroborate an intention to conduct business in Queensland either in 2011 or at any later time. Further, none of Thuy, Son or Joseph made any mention of such a plan.[40] In the circumstances of this isolated and vague evidence of Minh, I am not satisfied that any such plan ever existed in any real or substantive form.[41]

137 Indeed, in closing submissions, senior counsel for the plaintiffs could put the position no higher than that there was no evidence it was impossible for Roo and Oz Sheetmetal to open a business in Queensland.[42] In short, it was fanciful to suggest that Thomas was in any way harming the business of Roo and Oz Sheetmetal by any involvement he may have had in a business in Queensland. However, Minh persisted with this position throughout.[43] In my view, the decision to commence this proceeding (with Minh as the first plaintiff) was an extension of what had been playing out for some time; namely Minh, together with Thuy, considered they were in charge and they would not allow others to gainsay their position.

138 In summary, like the position with Thuy, the credibility of Minh was not entirely satisfactory and circumspection is required when assessing his evidence.

139 Joseph was a more satisfactory witness than Thuy or Minh, although from time to time he also adopted the practice of seeking to put the plaintiffs' case rather than answering a question directly. It also appeared that the witness statement prepared for, and adopted by, him went beyond what he actually recalled.[44]

140 Further, with respect to the affairs of the companies in this case, Joseph did not exercise an independent mind as to what decisions ought to be made or how matters should be transacted. This is most clearly demonstrated by the fact that, from 1 September 2003, Joseph was the sole director of PN & Nominees, but had no idea why things were handled in the manner they were with respect to that company; other than, for example, giving evidence that all the Family Members agreed, or he signed documents because "all the paperwork [was] just with my sister, Thuy" or "there must be some reason but I really can't tell", or he "didn't take any notice because [he was] not dealing with the paperwork".

141 The level of Joseph's understanding of things done as a director was apparent from his frank admission that he was not certain of the difference between a trustee and a director.

142 Son had very little idea of the affairs of Roo Sheetmetal or Roo and Oz Sheetmetal beyond what occurred on the factory floor. Effectively, Son had no involvement with Oz Sheetmetal.

143 Son also had difficulty at times understanding questions put to him and repeatedly gave answers that were not responsive to the question. I expect that this was more a matter of lack of comprehension and confusion, rather than deliberate obfuscation.

144 In 2002 or 2003, Son suffered a workplace injury. The accident damaged 1 of his eyes. He also hit his head heavily when he fell backwards on the floor. He lost a lot of blood. Son was taken to hospital and, after a short time, became an outpatient. He had to spend a number of weeks at home before returning to work. Son continued with treatment for over a year.

145 As a result of this accident, Son has serious memory problems. This was readily apparent during the course of giving his evidence when he was unable to recall matters that had been raised with him only a short time before. It was also apparent from the fact that he was unable to recall any details of a guarantee he gave in 2012 for $3.6 million.

146 In short, Son generally had a very poor recollection of events, both recent and distant. That said, it did appear that he had a good recollection of some events, particularly those dealing with the departure of Thomas in 2012, about which he was very emotional.

147 The plaintiffs called 9 persons who were officers or employees of customers of Oz Sheetmetal. It is unnecessary to refer to the evidence of the customers individually. Each of the customers, in broad terms, gave evidence that their relationship with Oz Sheetmetal was principally, if not exclusively, by reason of their relationship with Minh.

148 Further, they gave evidence to the effect that the service provided by Minh at Oz Sheetmetal was very good. Minh was described as very efficient. Generally, the evidence of the customers was the prices offered by Oz Sheetmetal were competitive. Further, evidence was given that the goods produced by Oz Sheetmetal met Australian standards.

149 Vien has known Thomas since they met in Vietnam in the early 1990s. In Vien's school years, Thomas gave Vien's family money to assist with Vien's education. Vien was close to Thomas. He now has a relationship with Thuy and Minh that is also close.

150 Cross-examination of Vien was directed towards establishing that Vien was an unreliable witness because he was beholden to Minh and Thuy. There was nothing in his evidence which suggested that Vien was doing anything other than giving evidence of matters as he recalled them. The fact that Vien was initially reluctant to give evidence when asked to do so does not suggest he was overborne when subsequently he agreed to give evidence in the case.

151 Grant Brown ("Brown") was the penultimate witness called by the plaintiffs. He is a consultant in the construction industry. At the times relevant to this proceeding, he worked as a draftsman, project manager and estimator.

152 Brown was a direct and forthright witness. He considers himself a friend of both Minh and Thomas. He agreed to give evidence at the request of Joseph. Brown said he did not discuss his evidence with Minh, Thuy or Joseph (or, presumably Thomas or Son) before giving his evidence.

153 Brown had an extensive working relationship in the past with both Thomas and Minh. The evidence given by Brown corroborated the plaintiffs' case, especially concerning events surrounding the 2002 Agreement.

154 Tuanh is close to her uncle, Minh. Tuanh attends Nga and Minh's home on approximately a fortnightly basis with her mother, father and sister, as part of regular family gatherings.

155 On the whole, Tuanh was a thoughtful and impressive witness. She was clear as to what she could and could not remember and confined her evidence to her recollection.

156 Comment was made by the defendants that no mention was made of Tuanh in the Statement of Claim and that no witness statement was provided for her by the plaintiffs in accordance with the pre-trial orders. It was submitted that given Tuanh's "apparent recollection", it was noteworthy that she was not called earlier or referred to in the pleadings.

157 Whilst these factual observations as to the lack of reference to Tuanh are accurate, they do not lead to a conclusion that Tuanh's evidence was unsatisfactory or that her recollection was more apparent than real. I expect her absence from the pre-trial court documents is more readily explained from a reluctance to call as a witness a person who, at all times, was employed by the plaintiffs' solicitors. Further, any forensic decision about whether Tuanh ought to be called by the plaintiffs was likely to be influenced by the fact that the defendants served Tuanh with a subpoena requiring her to give evidence as part of the defendants' case.

158 Linh was a witness who answered questions directly. There was no obvious reason as to why his evidence would not be accepted. It is clear that he has a great deal of trust in Thomas, and by reason of that trust was willing to act on Thomas' assurances and advice.

159 Danh gave accounting evidence in relation to Roo Sheetmetal and Oz Sheetmetal for the periods up to 2005. Danh was, at all times, and continues to be the accountant for Double T Sheetmetal. Danh was also Joseph's accountant at the time when Joseph conducted a business as a mechanic, under the name "P & Son Auto Repairs".

160 Danh stated that for the financial years from 2000 to 2002, he received information about Roo Sheetmetal from Thomas and Tina. After this time until early 2005, his instructions came from Thuy. Danh stated that, as the general ledgers and financial statements were the subject of bank reconciliations conducted by his firm, "as far as [he was] concerned", the reports provided by Phan Campbell & Associates were an accurate record of the performance of the businesses. Naturally, it follows that when cash was received by the businesses and not banked, the financial reports would be inaccurate.[45]

161 In addition to Thuy's approaching Danh in 2003 concerning PN & Nominees, Danh was instructed by Thuy alone in 2003 to have another company incorporated, which became Oz Sheetmetal. Again, Danh stated he did not know the purpose of this company. Danh said he usually did not ask many questions. In order to provide the necessary instructions for the incorporation of both companies, Thuy attended at Danh's office. Danh filled out a form based on the information provided by Thuy, which was read back to Thuy to make sure she was happy with it. Those details then became the basis upon which particulars of Oz Sheetmetal and PN & Nominees were registered with the Australian Securities and Investments Commission ("ASIC"). The formal documentation required to be lodged was prepared by another firm retained by Danh. All such documentation requiring signatures were provided by Danh to Thuy. Thuy then arranged for the signing to occur. In relation to these matters, Danh only ever dealt with Thuy.

162 In early 2005, Thuy and Danh had a personal dispute, which resulted in Thuy ceasing to use Danh's accounting firm for accounting and tax services for Roo Sheetmetal and Oz Sheetmetal.

163 Danh was not the subject of any cross-examination by the plaintiffs.

164 Tuan Tran ("Tuan") is an accountant. His firm, Tuan Tran Pty Ltd, was appointed as the accountant of Roo Sheetmetal and Oz Sheetmetal midway through the 2005 financial year. Tuan took his instructions mainly from Thuy. The first appointment he had was with Thuy and Minh when they attended his office, but after that Tuan rarely spoke to or saw Minh. Tuan said that before this time, he may have prepared personal tax returns for Minh.

165 Tuan continues to be the accountant for Roo and Oz Sheetmetal. He ceased being retained as the accountant for Roo Sheetmetal after the 2011 financial year.

166 Tuan said the accounts were prepared for each of Roo Sheetmetal and Oz Sheetmetal based on spreadsheets provided by Thuy. Save for conducting a reconciliation with the company bank statements, the information provided by Thuy would not otherwise be checked.[46] To use Tuan's language, the information was just copied and pasted. Thuy usually provided information each quarter.

167 Tuan was also responsible for preparing personal tax returns. Broadly speaking, such tax returns were prepared on a yearly basis.[47]

168 At no time was advice ever sought from Tuan about any valuation of Roo Sheetmetal or Roo and Oz Sheetmetal. Tuan was not cross-examined by the plaintiffs.

169 Chinh was an entirely satisfactory witness. He answered questions directly and was clear in his evidence.

170 Speaking broadly, Thomas is a hardworking, generous and generally kind-hearted man. In the past he has wanted to give to others, as part of showing his gratitude for what he has in life.[48] For many years in his life, Thomas has been committed to financially assisting those less fortunate than himself. In both Vietnam and Australia, there are many beneficiaries of Thomas' goodwill and charitable gestures.

171 Thomas' generous nature and the fact that Thomas has been willing for many years to give moneys and provide other assistance to a large number of people mean that any payments, or other benefits, given by Thomas cannot be assumed to have necessarily occurred because Thomas was seeking financial gain, or because he sought or had any proprietary interest in any company he may have assisted. In other words, Thomas cannot be presumed to have been acting commercially when making payments or giving to people. As discussed below, the generosity of Thomas was evinced in many ways, including in 2002 and 2003 in his dealings with his family.

172 Thomas, quite justifiably, felt very hurt and let down by the events of 2012, including the highhanded way in which he was treated after he was dismissed and precluded from the day-to-day conduct of the business of Roo and Oz Sheetmetal. By reason of these sentiments, he was willing to colour his evidence to seek to get back a business that was once his alone.

173 Thomas admitted that his recollection of many relevant events was poor. Thomas stated that since things had started to fall apart in his relationship with Thuy and others, he had been under a great deal of stress. He said his wife, Tina, had also suffered from depression as a result of the difficult circumstances.[49] According to Thomas, these combined matters have had a significant effect on him.

174 Like the plaintiffs, Thomas was also inclined, from time to time, to give evidence based on the case he wished to advance, rather than answering a question directly. There were numerous instances where Thomas failed to answer the question put to him.

175 In addition, Thomas fully appreciated he had signed many documents that were not consistent with the case he wanted the court to accept. As a result, whenever such documents were put before him he invariably responded immediately with what appeared to be a well-rehearsed account of how he never read the document in question, and that he simply signed because Thuy told him to sign. Whilst I accept this may have occurred on occasions, I do not accept that, on almost every occasion Thomas signed a document concerning company business or property transactions, he had no appreciation whatsoever as to the nature or content of the document. A glaring example of this course of conduct was when Thomas was taken to a letter dated 21 September 2010.[50]

176 An analysis of the evidence given by Thomas as to the basis upon which he signed documents discloses basic inconsistencies. In his evidence in chief, Thomas stated that he trusted Thuy completely and "usually signed the documents without much discussion about them". He said that "on the majority of occasions" he signed documents without reading them. He also stated he relied on Thuy's advice that the documents he signed were for legitimate purposes of the business. When put to him in cross-examination, Thomas accepted he had been very careful in giving this evidence. It suggested that there were occasions when Thuy discussed the content of documents before they were signed by Thomas.[51]

177 However, later in his cross-examination, Thomas said that Thuy did not give advice to him when documents were signed. Further, when asked about a document that he had signed in another context, Thomas made the unqualified statement that he never read any paperwork Thuy gave to him. When asked if he knew what a mortgage was, Thomas' non-responsive answer was as follows:

A mortgage, but when [Thuy] asked me to sign something, I just signed something but I never look and read it.

178 Another illustration of Thomas' evidence in this regard concerns a bank account in the name of each of Thuy, Son, Thomas and Joseph as trustees for the Phan United Family Trust. Thomas signed a document relating to that account, apparently on 11 February 2008.[52] Although this document had a place for 2 authorised signatories, Thomas was the only person who signed in that capacity. The document was significant. It recorded an agreement for the bank to provide a facility to Thomas, Thuy, Son and Joseph in their capacity as trustees of the Phan United Family Trust in the amount of $1.8 million.[53]

179 When first taken to this document, Thomas said Thuy inserted the date and told him to sign it so he signed. When asked whether he specifically recalled Thuy asking him to sign that document, Thomas responded "she always come and say sign this, sign that and I sign". When asked again whether he remembered Thuy asking him to sign the document in question, Thomas said he did not remember but that "every time she come and say sign this, sign that".

180 On the topic of Thomas signing documents, no case was put by the defendants that Thuy or anybody else had misled him, had acted unconscionably or had exerted any undue influence over him. In such circumstances, the following observation by the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd should be kept in mind:[54]

It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, ... whatever they might be.

(Emphasis added.)

181 Further, on occasion, Thomas gave evidence that was simply not credible. For example, when asked whether or not his wife received cash from Roo Sheetmetal, Thomas suggested he had no knowledge of such matters. Very soon thereafter, without any document or other evidence being produced to assist him, he acknowledged that he did know about cash wages being paid to his wife even though his wife never worked in the business. I do not accept that there was any confusion in the mind of Thomas when he gave his first answer, as he tried to suggest later in his evidence.

182 Finally, Thomas asserted that a number of events, which others gave evidence that Thomas attended, never occurred. Given Thomas' poor recollection generally, coupled with the matters referred to above, his evidence needs to be treated with a great deal of caution.

183 Thomas referred to Tina as his boss. He said that he always discussed important matters with Tina. Consistent with Thomas' evidence, Tina acknowledged that she had been suffering from depression from around 2012, which she attributed to the issues between the family (including those the subject of this proceeding).[55]

184 Tina was present at the family home at the time that Thomas met with Thuy, Son and Joseph in June 2002. She gave an extensive account of what was said at that gathering. She purported to have a recollection that enabled her to give almost a line-by-line description of what was discussed. Tina also said she had no occasion to discuss what was said at this meeting with anyone, including Thomas, until approximately 10 years later when issues flared up between the family.

185 I fully expect that Tina's recollection of events in 2002 has been affected by the lapse of time and the highly emotional environment with which she has had to deal in the last 3 or so years.

186 The reason Uncle Tu is an Australian resident is in large part because of Thomas. When Uncle Tu first sought to migrate to Australia, his application was refused. He had been sponsored by his daughter. She did not have a job and her husband did not earn a sufficient amount to satisfy the Australian government's requirements. Having learnt of this situation, Thomas agreed to sponsor Uncle Tu. Thomas took on a financial risk in doing so. In 1992, Thomas travelled to Vietnam and met Uncle Tu in person for the first time. Uncle Tu was allowed to enter Australia in June 1993, with his wife and child.

187 In early 2009, Uncle Tu agreed to travel from Sydney to Melbourne to help Thomas with some renovations on Thomas' family home in Hughesdale. Uncle Tu did this as part of expressing his gratitude to Thomas for his help in the past. Uncle Tu gave evidence that he was with Thomas on the evening of 4 May 2009 (a time at which the plaintiffs allege Thomas was at an important meeting).

188 Uncle Tu acknowledged that his memory was not as good as it used to be and it was difficult for him to remember what occurred on a particular day. He also accepted he did not remember clearly what happened on 4 May 2009. However, he had no doubt as to the timing of events in May 2009. Uncle Tu's evidence was corroborated by meticulous, contemporaneous handwritten notes that he took. In his evidence in chief, Uncle Tu came across as credible and reliable. Nothing that occurred in cross-examination materially altered that position. He made it clear he was relying on the contents of his notebook in giving his evidence as to timing.

F. Further relevant events before the incorporation of Roo Sheetmetal

189 Thomas had a defining moment in his life. While still in Hobart, Thomas visited St Mary's Cathedral on his own. It was a Sunday afternoon. He knelt at a location in the Cathedral he can still recall. He prayed. He asked why it was that he had worked so hard and yet was still unsuccessful. Thomas made a promise that if his hard work was rewarded, he would help "the poor and unfortunate people".

190 Thomas said that, after this moment, his life changed, "everything [came] to [him], just like a miracle". People helped him and he was successful. Thomas went so far as to say that everything he had done since that time was a miracle, including being in court and giving evidence.

191 As a result of Thomas' change of fortune in his life, he was concerned to give to charity because he felt a debt for all the good things that had been done for him. When this outlook crystallised in Thomas' mind is not entirely clear. However, he certainly held that view in November 2002.[56]

192 Thomas' generosity was demonstrated when he established Double T Sheetmetal with his brother, Tru, in 1995 in Cambria Road, Keysborough. Double T Sheetmetal, in which Tru and Thomas were directly involved for 5 or 6 years, manufactured airconditioning ducts. Thomas provided all of the start-up capital. By 1995, Thomas had saved approximately $150,000. Thomas allowed Tru to be a 50 percent owner in Double T Sheetmetal, without requiring Tru to invest any money at all in the business. In other words, Thomas provided all the required funding (which was approximately $140,000-$160,000) and worked very long hours, almost 7 days a week, but allowed his brother to be a half owner.

193 Son was employed by Double T Sheetmetal on a part time basis. His role was to prepare sheetmetal to specifications required. Joseph was also employed at Double T Sheetmetal and became familiar with the skills referable to sheetmetal manufacture.

194 In time, Double T Sheetmetal became profitable. From those profits, Thomas was paid back the moneys he had contributed to establish Double T Sheetmetal's business (T1914.29). Once these moneys were repaid in full, Thomas and Tru continued to own the business equally. Thomas never sought any compensation from Tru for the risk he took in investing his own money while Tru invested nothing other than his own time and expertise.

195 As time passed, Thomas and Tru developed a fundamental difference in opinion about how the business should be conducted. Thomas wanted to introduce technology and staff to allow the business to grow and prosper. Tru wanted to keep the business hands-on, and to keep capital expenditure to a minimum. Tru did not want to be exposed to the risks of expanding the business. This was essentially the reason for Thomas deciding to start his own sheetmetal business through Roo Sheetmetal.

196 According to Thuy, Thomas told her of his frustration in relation to the way Double T Sheetmetal was being conducted. Thuy said that from around 1997, Thomas said he wanted to start up his own business, and then Thuy and the family could join him. Thuy suggested that Thomas repeated this over a number of years.

197 Roo Sheetmetal was incorporated on 29 October 1999. Thomas gave Danh the necessary instructions for this to occur. However, Thomas did not start operating Roo Sheetmetal for more than a year, so that Tru could have Tru's son introduced to the business of Double T Sheetmetal in order to assist Tru after Thomas' departure. This is another indication of Thomas' generosity and selfless attitude towards his family. Thomas regularly considered the interests of others.

198 When Thomas finally departed, Tru and Thomas divided the assets of Double T Sheetmetal equally between them.

199 Thomas commenced operations for Roo Sheetmetal in around mid 2001. Roo Sheetmetal's location was adjacent to Double T Sheetmetal's factory in Cambria Road, Keysborough. In the early stages, it shared some equipment with Double T Sheetmetal. A large number of its customers were former customers of Double T Sheetmetal. The business apparently had only moderate success at the outset.[57] Thomas was unsure about how the business would develop and whether it would prosper. Accordingly, he employed staff on a casual, rather than permanent, basis.[58]

G.2 Details of family members working at Roo Sheetmetal up to mid 2002

200 It is not clear from the evidence precisely when each of the relevant Family Members began working for Roo Sheetmetal, or in what capacity they did so. The evidence in that regard contains numerous inconsistencies. It is important this evidence is considered carefully as the employment of the relevant Family Members with respect to Roo Sheetmetal is of some relevance to the consideration of whether the 2002 Agreement was struck.

201 It appears that, in the period between the commencement of Roo Sheetmetal's business in 2001 and June 2002, each of Tina, Son, Joseph and Thuy (amongst other members of Thomas' extended family)[59] worked at Roo Sheetmetal, either on a part time or a casual basis.[60] The records of Roo Sheetmetal did not reflect this, but it was common ground that the payroll records were not correct.[61] Thuy explained this discrepancy on the basis that the additional people working at Roo Sheetmetal started work before she started, and that Thomas was already paying them in cash. These persons included Son. As for her absence from the payroll records after 1 July 2002, this was because Thuy never drew a salary from Roo Sheetmetal.[62]

202 During the early stages of the business, Tina helped out at Roo Sheetmetal with production, the sealing of duct work using silicone, operating cutting machines and cleaning. She assisted with the preparation of invoices using "MYOB" software. Tina also arranged for lunch and dinner to be provided to employees on occasions when they worked overtime. Tina ceased working with the business around 3 months prior to July 2002 (although, with Thomas' knowledge, she continued to receive cash wages long after her cessation).

203 Son gave evidence that he commenced working part time at Roo Sheetmetal around 2000, but this is before Roo Sheetmetal started operating. It is likely that Son started working for Roo Sheetmetal in around mid 2001, however, the precise timing of his commencement is not important. It is not in dispute that Son was working at Roo Sheetmetal prior to 1 July 2002, whilst still being employed on a full time basis elsewhere as a die casting worker.

204 Son worked at Roo Sheetmetal in the afternoons, commencing at around 3:00 pm to 4:00 pm, after finishing his shift at Australian Die Casting Company. At Roo Sheetmetal, Son initially worked as a labourer performing odd-jobs and assisting in the production of fabricated ductwork.

205 It is not clear from the evidence precisely how often Son worked at Roo Sheetmetal prior to 1 July 2002. Son gave evidence that the frequency with which he worked in the business depended on how busy it was. Significantly, Thomas kept a book, on a daily basis, to record who worked at Roo Sheetmetal and the hours each person worked on any given day ("the Employee Hours Record").[63] The Employee Hours Record includes numerous entries referable to the name "Son" during the afternoons in early 2002.[64] Further, Thomas confirmed, in his evidence, that at least some of those references were references to hours worked by his brother.[65]

206 Joseph started working at Roo Sheetmetal sometime between mid-2001 and February 2002; conflicting evidence was given on that issue. It was Joseph's evidence that he commenced working at Roo Sheetmetal around mid-2001.[66] Thomas' evidence was that Joseph commenced around February 2002. The Employee Hours Record appears to support Thomas' account in so far as it records that, on 7 February 2002, Joseph worked from "7:30-18:00" and in so far as no earlier written record of Joseph working at Roo Sheetmetal was tendered in evidence.[67]

207 According to Joseph's evidence, his initial role at Roo Sheetmetal involved managing the sheetmetal fabrication process and dealing with the drawings required for fabrication. Thomas gave evidence that, when Joseph commenced working at Roo Sheetmetal, Joseph's main job there was truck driving and that, on occasion, Joseph also helped out on the factory floor. Thomas' evidence was supported by Tina who stated that Joseph's main field of work at Roo Sheetmetal was in trucking, not in sheetmetal production.

208 In any event, there is no dispute that, during the initial stages of his employment, Joseph worked long hours at Roo Sheetmetal. Despite working such hours, Joseph was not, at that stage, a "full time" employee at Roo Sheetmetal.

209 Principally, Thomas and Tina gave evidence as to why Joseph was not a full time employee from the outset. In broad summary, the evidence was that, before Joseph commenced working at Roo Sheetmetal, he was unemployed. Joseph informed Thomas he was receiving a government unemployment allowance from Centrelink. Joseph further informed Thomas that, as a result of the allowance, he did not want to declare any more than 18 hours of work per week in case doing so would reduce his entitlement. Tina said that Joseph wanted to be paid in cash in respect of the work he performed at Roo Sheetmetal in excess of 18 hours. Neither Thomas nor Tina was challenged on this evidence.[68]

210 Thomas agreed to Joseph's request. Accordingly, prior to 1 July 2002, Joseph was recorded as working only 18 hours per week at Roo Sheetmetal. That was despite the fact that, in reality, Joseph worked up to around 40 or 50 hours, over 5 to 6 days per week and was being paid in cash for the additional hours.

211 There is conflicting evidence on the question of whether or not Thuy worked at Roo Sheetmetal prior to 1 July 2002.

212 First, Thuy gave evidence that she did not commence working at Roo Sheetmetal until 1 July 2002. Secondly, Joseph initially gave evidence, by way of his witness statement, that Thuy became involved in Roo Sheetmetal in around 2001. However, under cross-examination, Joseph stated that his witness statement was incorrect on the issue and that, in fact, Thuy did not start working at Roo Sheetmetal until 1 July 2002. Thirdly, Thomas gave evidence that Thuy began working at Roo Sheetmetal between around February 2002 and April 2002[69] and that, at this stage, Thomas invited her to do so because she did not have any other work. Thomas further stated that it was his intention that Thuy would replace Tina at Roo Sheetmetal, so that Tina could spend more time with their children.

213 The Employee Hours Record provides some significant assistance in clarifying the above discrepancies. That document records an entry (and in some cases more than 1 entry) referable to a person by the name of "Thuy" on each of the following dates: 7 February 2002; 26, 27 and 30 March 2002; 1, 2, 8, 12, 16, 19 and 20 April 2002; and 1, 2, 4, 6, 8, 9, 10 and 13 May 2002.[70]

214 When asked about those entries, Thomas gave evidence that 4 of them (namely the entries on 7 February 2002 and 1 April 2002 and also 1 of the entries on each of 2 and 9 May 2002), recorded hours worked by his niece (also named Thuy), rather than his sister.[71] Thomas also gave evidence that each of the remaining references to "Thuy" in the Employee Hours Record (in respect of the dates listed above)[72] were references to his sister. The 2 Thuys could be distinguished because their names were recorded with different accents; more specifically, Thomas stated that his sister Thuy had a "squiggle" accent above her name, while his niece had a "flat" accent above her name.

215 It was put to Thomas, during cross-examination, that the references to "Thuy" with the "squiggle" accent in the Employee Hours Record were in fact references to Son's wife, rather than to his sister. In response, Thomas stated that this was impossible. Thomas agreed that: Son's wife was also called Thuy; and that her name was spelt with the same "squiggle" accent; but said that she worked at Roo Sheetmetal in around 2003 or 2004, and not before.[73] Tina also rejected the suggestion that Son's wife, Thuy, was working at Roo Sheetmetal in mid 2002.

216 During Thuy's cross examination, it was put that Thomas recorded her working at Roo Sheetmetal during the months of April and May 2002. Thuy emphatically denied this and stated that, prior to 1 July 2002, she was at home raising her 2 children and was not working at Roo Sheetmetal. It was further put to Thuy that she received a pension at that time and was paid in cash for any work she performed at Roo Sheetmetal in the first half of 2002. Thuy agreed that she was in receipt of a "Centrelink pension" until July 2004, and after that time continued to receive a family allowance, but denied being paid cash by Roo Sheetmetal in May 2002.

217 As set out above,[74] the evidence on the question of whether Thuy commenced working at Roo Sheetmetal prior to 1 July 2002, is far from satisfactory. However, on balance, the better view is that Thuy commenced working at Roo Sheetmetal in early 2002, either on, or prior to 26 March 2002.[75] That is so for the following reasons:

(1) The Employee Hours Record is a contemporaneous business record that Thomas appears to have kept accurately; it includes references to persons by the name of "Thuy" which are distinguishable by 2 different accents.[76]

(2) The Employee Hours Record includes references to each of those persons prior to 1 July 2002.[77]

(3) There is no evidence before the court to suggest that the references to "Thuy" with a "squiggle" accent were references to anyone other than to Thuy, ie Thomas' sister.[78]

(4) Thomas gave direct evidence that the relevant references, that is the references with the "squiggle" accent, were references to his sister on each occasion that those references were put to him.[79]

(5) The references to "Thuy" bearing the "squiggle" accent first appear in the tendered pages of the Employee Hours Record on 26 March 2002.[80]

(6) Little weight can be put on Thuy's evidence in respect of this issue for the reasons described above;[81] although Thomas was also far from a satisfactory witness, his evidence was corroborated by contemporaneous records.

(7) Joseph's evidence as to when Thuy commenced working at Roo Sheetmetal was unsatisfactory in so far as he initially stated, in his witness statement, that Thuy commenced working with Roo Sheetmetal in 2001 but later, in the course of cross-examination, changed his evidence to state that she commenced working on 1 July 2002.[82] His explanation for the change in his evidence was far from convincing.[83]

(8) Neither Son, nor any other witness, gave evidence which contradicted Thomas' testimony that Son's wife "Thuy" did not work at Roo Sheetmetal before 2003 or 2004.[84]

(9) Brown gave evidence (which is set out in more detail below[85]) that he was introduced to Thuy, amongst others, at Roo Sheetmetal's premises in around February or March 2002, and Thuy was described as being "in this business". With a minor and insignificant exception, the plaintiffs invited the court to accept Brown's evidence without qualification.

(10) Minh gave evidence (see below[86]) that Thuy approached him in March 2002 to ask Minh to teach her about how to operate certain software programs.

218 Further, it appears that senior counsel for the plaintiffs accepted that the weight of the evidence showed that Thuy worked at Roo Sheetmetal before July 2002. Notwithstanding Thuy's emphatic denials on the point, later, when cross-examining Thomas, senior counsel specifically put to Thomas that both Joseph and Thuy were working at Roo Sheetmetal in June 2002. After Thomas accepted this, it was then put that Joseph and Thuy had been working at Roo Sheetmetal for "a few months" before June 2002, a proposition to which Thomas also acceded.

219 In contrast to the issues concerning the timing of Thuy's commencement at Roo Sheetmetal, the evidence regarding Thuy's initial role in the business and the hours she worked appears to be largely uncontroversial.

220 In broad terms, Thuy's initial role at Roo Sheetmetal involved assisting with and organising the bookkeeping, paperwork, invoices, payroll and other administrative matters, as well as performing odd jobs on the factory floor.[87]

221 Relevantly, Thomas gave evidence that, while Thuy did perform banking duties for Roo Sheetmetal after 1 July 2002, she did not undertake those duties before that date.[88] Further, when Thuy commenced working at Roo Sheetmetal in about March 2002, she did so for approximately 10 hours over around 2 days per week. According to Thomas, she was paid in cash for work performed during that period, in accordance with the hours recorded in the Employee Hours Record. Equally, on Thuy's version of events, namely that she started in July 2002, it was only approximately 2 days a week that she initially worked.[89]

222 In 2002, Roo Sheetmetal operated its business transactions by maintaining a bank account and also a "cash fund". Thus, when payments were received in cash from customers these moneys were sometimes not banked, but were held to make cash payments for business related expenses or other purposes.[90]

223 Thomas said the reason none of the staff was employed at Roo Sheetmetal on a full time basis prior to 1 July 2002 was because Thomas was worried about securing workflow and was uncertain about the future. Accordingly, Thomas stated that, during that period, he would not take anyone on full time.

224 The level of Thomas' uncertainty dissipated dramatically in around May 2002. Around that time, Roo Sheetmetal's business began to grow more quickly, primarily because it was receiving a large amount of work from a company by the name of Ductmakers. In May 2002, Roo Sheetmetal received a large order from Ductmakers worth approximately $192,000.

225 Thomas began to talk to Tina about the possibility of getting Thuy, Son and Joseph more involved in the business.[91] Whether these discussions were confined to offering full time employment or also involved giving some ownership is a pivotal issue in the case. Consistent with Thomas' evidence about speaking to Tina about all important matters,[92] Thomas considered the subject matter of his discussions with Tina on this issue was important.

226 Also in May 2002, Roo Sheetmetal moved to Double T Sheetmetal's former premises in Cambria Road, Keysborough. Double T Sheetmetal had moved to Dandenong and Thomas took the opportunity to relocate to the larger premises previously occupied by Double T Sheetmetal.

G.4 Introduction of Thuy, Son and Joseph as "partners"

227 Brown gave evidence that, in around February or March 2002, at the office of Roo Sheetmetal, Thomas introduced Brown to Thuy, Son and Joseph. In 2002, Brown was a project manager at an airconditioning company. He placed orders with Roo Sheetmetal to make duct work for various projects. After this initial introduction, Son proceeded to carry out his duties on a forklift. In the remaining presence of Thuy and Joseph, Thomas said to Brown that Thuy, Son, Joseph and Thomas were all "partners" in a new family business called "Roo". Thomas continued by stating that Tru had trained Thomas up at Double T Sheetmetal and that Thomas was now in the new business with Thuy, Son and Joseph.

228 Thuy, Son and Joseph plainly were not partners with Thomas in February or March 2002. However, such an introduction before any more formal arrangements were put in place is consistent with Thuy's evidence that Thomas had been talking to her for a number of years about "[her] and the family" joining Thomas in business.

229 Although Brown was a satisfactory witness, some caution must be exercised to avoid placing too much weight on this evidence. There are at least 3 reasons for this. First, there is a period of nearly 13 years between the time the conversation took place and the time Brown gave evidence. This makes oral accounts of an informal discussion inherently problematic. Secondly, none of Thuy, Joseph or Son corroborated Brown's evidence in this regard. Thirdly, the use of the word "partners" in common parlance can refer to relationships that do not necessarily involve all "partners" having ownership. This extended meaning might even more readily be adopted when English is the speaker's second language.

230 That said, Thomas' dismissal of the account given by Brown of his introduction to Thuy, Son and Joseph as partners was simply to reject that evidence. No evidence was sought to be led from Thomas as to what occurred.

231 Proceeding on the basis that such an introduction was given, although somewhat ambiguous, it is consistent with Thomas and Thuy, together with Joseph and Son, fully expecting to formalise a business relationship which involved them being "partners" (ie owners), but in February or March 2002 Thomas was yet to convince Tina that such a relationship should be put in place.

232 There is no issue that some form of agreement was reached in mid 2002. To determine whether an agreement was entered into with the effect of creating a trust as alleged, essentially the following is involved:

(1) Deciding what was said and agreed to by Thomas, the legal and beneficial owner of the shares in Roo Sheetmetal.

(2) If (1) is decided in the plaintiffs' favour, whether Thomas' conduct (by what Thomas said or agreed to) manifested[93] an intention[94] to create a trust.

(3) If (2) is answered affirmatively, was it a trust as alleged by the plaintiffs?

233 In determining the first issue, it is unnecessary for the plaintiffs to establish a legally enforceable contract was entered into.[95] Indeed, the plaintiffs make no such allegation; they allege no more than a discussion, resulting in a meeting of the minds among Thomas, Thuy, Son and Joseph, that:

(1) From July 2002 onwards, each of them would beneficially own Roo Sheetmetal in equal proportions and jointly share any profits and bear any losses.

(2) In recognition that Thomas had contributed his own money to fund the start-up and early operation of Roo Sheetmetal, Roo Sheetmetal would make payments to Thomas to reflect his contribution after taking into account Roo Sheetmetal's trade creditors and trade debtors as at 30 June 2002 ("the Recognition Payments").

234 Before proceeding further with the facts, I observe that in determining whether an agreement was entered into as alleged, the court ought to consider any events that occurred before or after the alleged agreement which are probative of whether or not an agreement was actually entered into. In contract law, there are certain strictures on the extent to which conduct before or after an agreement is made may be used in construing the terms of an agreement.[96] However, such restrictions are not directed to the issue of whether or not an agreement was in fact entered into, or what terms were agreed (as distinct from the question of the meaning of those terms).[97]

235 This approach to ascertaining whether or not an agreement has been entered into, and the terms of that agreement, is equally applicable to this case.[98] Even though a binding contract is not alleged, to the extent subsequent conduct is an admission or goes against the case being put, that evidence is relevant.[99] The following passage in Herdegen v Federal Commissioner of Taxation is particularly apposite:[100]

In some factual situations where the existence of an express trust is an issue, it will be against the interest of the alleged trustee to admit the trust. Thus evidence of acts by [her or him] subsequent to the date of the alleged declaration of trust which tend to show the existence of the trust will be admitted as admissions against (but not for) [her or his] interest.[101]

Moreover, in determining whether or not an intention to create a trust has been manifested, the relationship between the parties may be considered.[102]

236 In making this last observation, the fact that the relevant persons were members of the family is expressly pleaded. However, I note that the 2002 Agreement as pleaded is not alleged to be an implied agreement or a case of identifying "what the parties must be regarded, as a matter of [commercial] necessity, as having agreed".[103] Rather, the plaintiffs' case is confined to an express agreement based on a discussion on a specific occasion.

237 In order to find an express trust was created, it is not necessary for the plaintiffs to prove the parties specifically and formally turned their minds to the fact that a trust was being created;[104] no special or technical language needs to be used;[105] it is sufficient if the intention to create a trust may be ascertained from what the parties actually agreed or said.[106] The intention is imputed when manifest in what is expressly agreed or declared.[107] That intention must be clear from the language used,[108] as objectively understood in the relevant circumstances of the case,[109] including the relationship of the parties.[110] More than once, Gummow J has observed that the precision that might be expected in arms-length commercial transactions is not to be expected in private family dealings.[111]

238 There is no real controversy about the fact that Thomas decided that the improvement in the circumstances of Roo Sheetmetal would allow Thomas to help Thuy, Son and Joseph, by involving them in the business of Roo Sheetmetal.[112] Thomas and Tina discussed whether or not Thomas should offer help. Ultimately, Tina agreed to Thomas' proposal.

239 In June 2002, Thomas arranged for a meeting to be held. As a result of this, each of Son, Thuy and Joseph met with Thomas at his home around the kitchen table. Further, all parties accept that Thomas put forward a proposal, which, broadly, was accepted. Furthermore, the accepted proposal was to take effect from 1 July 2002. In essence, the dispute between the parties is as to what proposal Thomas put.

240 Substantively, the plaintiffs' evidence is that Thomas agreed to give Thuy, Son and Joseph each a 25 percent interest in Roo Sheetmetal,[113] keeping the remaining 25 percent to himself.

241 According to Thuy, she stated at the start of the meeting that Thomas had invited them all to discuss opening a business together. Thuy said that, after these introductory remarks, Thomas stated that from the beginning of the new financial year "the 4 of us will be shareholders in the new Roo". In addition, Thomas is said to have stated that the machinery and funds or moneys contributed to the "new Roo" (ie from the "old Roo") would be repaid to Thomas once the company had made a profit. Thuy stated that, in response to this, she said from 1 July 2002, if the company made a profit, that profit would be repaid to Thomas first. Both Son and Joseph indicated they agreed with this. Thuy said, from this day on, she believed that each of them was entitled to 25 percent "of the business". Thuy also recalled Thomas saying that Thuy and Thomas "will do a walk around the factory to record what belonged to the old business", but that it was unnecessary to record the larger equipment; he said they should record what was not clearly visible.

242 Joseph's account of this meeting was that Thuy stated that all 4 were to become equal owners of Roo Sheetmetal from 1 July 2002 with the responsibility to make Roo Sheetmetal grow and become a success. According to Joseph, Thuy said that Thomas should be paid back by the "new Roo" for everything that belonged to Thomas before 1 July 2002, such as stock, cash, invoices and machinery. Joseph said that, in relation to each of the matters put by Thuy in relation to Thomas being paid back, each of Thomas, Son and he agreed.[114] Joseph said there was some discussion about who would do what after 1 July 2002. Joseph also recalled stating that as the Roo Sheetmetal business was small, Son should keep working at Australian Die Casting Company and work for Roo Sheetmetal in the afternoon. Joseph said that was also agreed to by all.

243 Son's version of what was discussed included that Thomas stated that all siblings should work at Roo Sheetmetal because it was not very busy.[115] Son said Thomas also stated that each of the siblings working at Roo Sheetmetal would own part of Roo Sheetmetal. Consistent with the evidence of Thuy and Joseph, Son suggested Thuy stated that Thomas would be paid back for property owned prior to 1 July 2002 and that moneys received after 1 July 2002 would belong to the "new Roo". Son also recalled Thomas stating what roles and responsibilities Son would have under the new arrangement.

244 As would be expected after more than 12 years, the account given by each of Thuy, Joseph and Son was different in a number of respects. However, the substance of the evidence was that each of them recalled Thomas either stating or agreeing that a "new Roo" would commence from 1 July 2002 and that each of the 4 of them would be owners in Roo Sheetmetal from that time on. Further, in substance, according to their evidence, it was agreed that Thomas would be paid from the profits of the "new Roo" to match his contribution to Roo Sheetmetal before 1 July 2002.

245 In contrast, Thomas asserts that at the June 2002 meeting, he simply offered full time employment to each of Thuy, Son and Joseph, together with the possibility of a shareholding in Roo Sheetmetal in the future if they looked after the business, it was successful and Thomas was able to retire early. He denied it was an important meeting. To a large extent Tina supported Thomas' account, although she said the meeting was very important to her. Consistent with Thomas, Tina stated Thomas had agreed to let them officially work full time for Roo Sheetmetal. However, her evidence was far more extensive than Thomas as to what Thomas said.

246 According to Tina, Thomas said that they all knew how hard Tina and Thomas had been working as a couple over many years. Thomas said Roo Sheetmetal had developed into a very big company with many customers and lots of work. Thomas expressed his happiness for this day to have arrived as he wanted to be able to provide stable employment to his siblings. Also according to Tina, Thomas reminded his siblings that Roo Sheetmetal was his company, established by Thomas so that all decisions within the company rested with Thomas and everything was to be decided by Thomas. She said when all of this was said by Thomas, the others just listened.

247 Tina said that Thomas stated his intention for the future, namely that he would be focused, and would put his heart and mind into developing the company in accordance with his wishes to make Roo Sheetmetal really strong so that eventually there would be no need for him, and so that he would be able to retire. Thomas also said that upon retiring, Thomas intended to have time with his family and for other activities, like charity. Thomas also said that later on when he retired, as a couple Tina and Thomas would give Thuy, Son and Joseph "the share to be distributed equally amongst them" and allow them to continue looking after Roo Sheetmetal for him.

248 According to Tina, Thuy then asked about salaries, to which Thomas responded that the salaries would depend on the work, the ability and also the position of Roo Sheetmetal. Thomas said, depending on these factors, salaries would be fair and equitable and everyone would be happy.

249 After some incidental matters, Tina said that Thomas reminded Thuy that she worked in the office to do the paperwork and if there was anything she did not understand she could ask the accountant or a lawyer. Tina said that Son then stated he did not want to start at Roo Sheetmetal then, as he had to wait for a redundancy package. In response, Thomas said that Son could either join then or later.[116]

250 Tina gave evidence, which I accept, that for approximately 10 years she did not discuss with anyone what had occurred at this meeting in June 2002. She said she had no occasion to discuss it until the dispute arose. She was then told by lawyers not to discuss her evidence with others, including Thomas. However, I do not accept her evidence that it was not until she was standing in the witness box that she heard, for the first time, that a claim was being made by the plaintiffs that Roo Sheetmetal was owned equally by Thomas, Thuy, Son and Joseph from 1 July 2002. Tina acknowledged she had discussed this proceeding with her lawyers. Tina had been consulted extensively before she gave evidence. A detailed witness statement was prepared on her behalf by lawyers. It is not plausible that instructions were not sought from Tina on this critical aspect of the plaintiffs' case.[117] Moreover, Tina was involved in a number of discussions in 2012 where the issue of ownership was addressed.[118]

251 There was also conflicting evidence as to whether or not a meal was had at Thomas and Tina's home shortly after the meeting, and whether the spouses of Son and Joseph came to Thomas' home. Nothing really turns on whose account of these matters is correct,[119] though it does go to demonstrate the difficulty witnesses had in accurately recounting exactly what occurred more than 12 years ago.

252 None of the witnesses suggested that there was any discussion about Thomas actually transferring the legal ownership of the existing 2 shares in Roo Sheetmetal, or about Roo Sheetmetal issuing further shares.

253 In determining which account is correct, I am hesitant to place any particular weight on the evidence of any particular individual as to what occurred. Not only was the evidence given more than 12 years after the events, the "meeting" was a family gathering. I do not accept that any witness had a clear recollection of exactly what was said. Further, I do not accept the evidence of Thomas or Tina that they could remember the exact words or everything that was said such a long time ago.

254 In particular, Tina's version of events appears to be a reconstruction based on what she believed occurred rather than what she actually recalled. No one other than Tina suggested Thomas made any reference to Tina's contribution to Roo Sheetmetal. More pertinently, her evidence of Thomas telling all those present that it was "his company" and that all decisions were to be made by Thomas seems to be a complete figment. Although this account may not have been consciously inaccurate, it seems to be highly improbable given that, from 1 July 2002 onward, Thomas left a large number of important finance and management decisions to Thuy.[120] I do not accept that Thomas stated he was going to do the exact opposite of what he did almost immediately thereafter. Also, I am persuaded that Tina's evidence was affected by the jaundiced relationship that has existed from at least 2012, and her strong view that the other Family Members have done wrong by Thomas and her. When Thomas and Tina were in court, the tension between them and the other Family Members present in court was palpable.

255 In essence, I accept the plaintiffs' account of what occurred in 2002. In reaching the conclusions I have with respect to the 2002 Agreement, I have been mindful of the findings I have made on the credibility and reliability of each of Thuy, Son and Joseph. The mere fact that I have not accepted Thomas and Tina's version of events in 2002 does not mean that I ought to find necessarily in favour of the plaintiffs.[121] Notwithstanding my rejection of some of the matters relied upon to corroborate the plaintiffs' case, the matters referred to in paragraphs 256 to 303 below strongly suggest that the plaintiffs' account is substantially correct. When the oral evidence of Thuy, Son and Joseph is viewed collectively, and is considered in light of the matters referred to below, these factors demonstrate a body of objective evidence by which the plaintiffs have discharged their onus of proof on this issue.

256 To accept the plaintiffs' case would be to accept that Thomas acted in an extraordinarily generous manner towards his sister, his brother and his brother in law. But such an act of generosity was typical of Thomas. This is apparent not only from the events preceding the incorporation of Roo Sheetmetal,[122] but also from the fact that Thomas continued to give his money, time and expertise to others for little more than the satisfaction of the giving itself.[123] In short, the case of the plaintiffs is entirely consistent with Thomas' general demeanour to give to others without expectation of pecuniary reward in return.

H.4.2 Previous arrangement at Double T Sheetmetal

257 This was not the first occasion upon which Thomas had allowed a family member to take an interest in a company without payment. At Double T Sheetmetal, not only did Thomas allow this to occur, but he also adopted a similar model of getting a return of his financial contributions from the profits of the business.[124] The fact that Thomas had successfully implemented this model with Double T Sheetmetal (presumably with Tina's knowledge[125]), is relevant in considering whether he adopted a similar model in relation to Roo Sheetmetal.[126]

258 Consistent with the "new Roo" and "old Roo" arrangements,[127] on or about 1 July 2002, Thuy and Thomas did a stocktake of Roo Sheetmetal. The written recording of the stocktake contained the handwriting of both Thuy and Thomas.[128] Whilst acknowledging that a stocktake was taken, Thomas explained that he normally had a stocktake for the end of the year. Thomas also said he took the opportunity to explain things to Thuy. In contrast, Thuy said that the issue of a stocktake had been discussed between them in June 2002 because it was necessary to establish what belonged to Thomas as at 1 July 2002 so that "that could be returned to Thomas".

259 The fact of the stocktake alone, without more, would have been a neutral factor. Both explanations for it occurring are equally plausible and consistent with the respective cases. However, the existence of the stocktake coupled with the Recognition Payments gives considerable support to the plaintiffs' version of the agreement reached in June 2002.

260 From July 2002, Thuy kept what she referred to as a record book ("the Record Book"), which recorded a list of payments made to Thomas after 1 July 2002. Thuy said that the Record Book recorded most, but not all, of the payments made to Thomas owed by the "new Roo" to the "old Roo" pursuant to the 2002 Agreement. Most of what is contained in the Record Book was not the subject of any cross-examination.

261 The details of the Record Book were recorded in a table that formed part of the Statement of Claim ("the Recognition Payments Table").[129] With respect to the contents of the Recognition Payments Table, Thuy stated she had several conversations with Thomas from 2004 to 2006 in which she asked Thomas to review all the payments she had noted down in the Record Book. In 1 of these discussions, on 28 October 2004, notes of the figures discussed were taken. Those notes recorded on the front page that $282,139.94 had been paid to Thomas and $25,867.91 was remaining.[130] On the second page it was recorded $308,007.85 was owing to Thomas, less $287,239.94 paid to Thomas, with a balance of $20,767.91.

262 Thomas initially denied he received any moneys after 1 July 2002 other than his wages. He then accepted that he received moneys in addition to wages for certain expenses. When it was put to him that he also received cash in addition to payment of his expenses, Thomas said that he could not recall. In further response to the same question, Thomas said that his sister may have given him money for a holiday, but he put his envelope containing the money in a drawer and never counted the money. He then said that whatever Thuy gave him he just put it in the drawer, locked the drawer and never counted the money. He said, as a result, he did not know how much he was paid. He further said he did not know whether he received money from Thuy in addition to his wages. As is apparent, Thomas' evidence on this topic shifted and was inconsistent.

263 Thomas denied ever seeing the note dated 28 October 2004. He also flatly denied any discussion reflecting that note.

264 I accept that a discussion was held between Thuy and Thomas on or about 28 October 2004 in which the amounts owing and paid to Thomas were discussed. On its face, the note was taken at a time when there was no conflict between Thomas and Thuy and they trusted each other. It was not put to Thuy that this note was a fabrication; indeed, Thuy was not cross-examined on the note at all.[131]

265 Thuy gave evidence that Thomas was paid more than $300,000 pursuant to the 2002 Agreement. She said that, at the time the note was prepared on 28 October 2004, Thuy had not accounted for machinery. She was not challenged on this evidence.

266 Thuy said she had conversations with Thomas when she identified invoices that appeared to be for Thomas personally, rather than a business expense.[132] She said once this was confirmed by Thomas, Thuy arranged for the invoice to be paid by Roo Sheetmetal and she made a note of that on most occasions in the Record Book. She said on other occasions she simply took out cash from the "cash fund" and handed it to Thomas.

267 When Thomas gave oral evidence, he was taken to the Recognition Payments Table. Of the 119 items listed (which recorded a total of $357,902.60 in payments to Thomas, $337,329.04 of which were recorded in the Record Book), Thomas was only taken by his counsel to 2 entries. In relation to an entry for $5,060,[133] Thomas said he received cash, and gave that cash to Thuy. The second entry referred to was for $10,000, which Thomas also said he received in cash and gave it to Thuy. This was the only satisfactory and direct evidence given by Thomas to challenge any of the 119 entries contained in the Recognition Payments Table.

268 Thomas also purported to deal with the Recognition Payments Table in his witness statement, stating he had reviewed it. In making his statement, he expressly referred to "the plaintiffs' statement of claim". When referred to this under cross-examination, Thomas said he did not know what a statement of claim was. As to his purported review, Thomas said he only looked at the Recognition Payments Table with his lawyer, but did not look at the underlying documents. When asked more directly as to what he did, Thomas said he had a "quick look" at the Recognition Payments Table.

269 In light of this evidence, I do not propose to go through each of the items as individually dealt with in his witness statement. In summary, Thomas identified some items which he said were related to Roo Sheetmetal's business. Other items he said were for personal expenses. Further, he also stated he could not recall receiving certain cash payments referred to in the Recognition Payments Table. That said, Thomas acknowledged he did receive cash payments from Thuy, but that he thought those payments were for "cash jobs received by the business or were payments from the profits of the business". Otherwise, his evidence amounted to a general denial that the payments received were recognition payments as alleged by the plaintiffs.

270 This denial needs to be put in context. When Thomas was cross-examined about discussions with Thuy in the "first couple of weeks in July 2002" concerning money "that was coming in", Thomas said "I tell you the truth, at that time up to now I don't remember what she say to me, it's too long". Other answers of Thomas made it plain this answer was confined to the subject matter regarding moneys coming into Roo Sheetmetal. In giving this evidence, which I accept, effectively Thomas acknowledged there may have been discussions with Thuy about how moneys were to be allocated, but he could not recall. Further, Thomas also acknowledged he had no idea how much cash Thuy was giving him from time to time.

271 For the purposes of determining the issues in this proceeding, nothing really turns on whether (approximately) $15,000 referred to in paragraph 267 above was paid by Thomas to Thuy, as there was no claim made by Thomas for a failure to pay all the Recogniti[134]Payments,134 and there was no attempt by the plaintiffs to precisely identify the amount of moneys previously owing to Thomas. Moreover, Thomas was not challenged on this evidence concerning these 2 payments. In the circumstances, I accept his account that he handed the cash representing those payments to Thuy.

272 In summary, in the absence of any compelling evidence to the contrary, the contemporaneous business records strongly corroborate the plaintiffs' case that, from July 2002 to May 2006, Thomas received payments of more than $300,000 (of which $195,325 was received in cash).[135] Although some explanation was proffered by Thomas for some payments, there were many payments which could not be explained. The evidence strongly suggests the payments referred to in the Recognition Payments Table were the Recognition Payments; and, with the exception of the payments referred to in paragraph 267 above, I so find.

H.4.5 Bookkeeping concerning "old Roo" and "new Roo"

273 The Record Book contained other contemporaneous entries that clearly recognised an existing dichotomy between the "new Roo" and the "old Roo". Although such entries are not an admission against Thomas' interests (there is no suggestion Thomas was aware of these entries at the time), nevertheless the entries are business records of Roo Sheetmetal which strongly corroborate the account given by Thuy.

274 A page of the Record Book was headed "Ky chq (Tu)". The reference to "Tu" was a reference to Thomas. Listed below this heading were 7 entries relating to cheques paid by Roo Sheetmetal in July and August 2002 at Thuy's instigation. Those entries include references to "May account" or "June account". Thuy explained these references were included to show money that was being paid for the benefit of "old Roo". Of particular significance is an entry for 31 July 2002 for payment of an electricity bill. That bill spanned the period both before and after 1 July 2002. The bill was for $662.20. Two thirds of the bill was accounted for as being referable to "old Roo". Accordingly, $441 of the bill was treated as money paid for "old Roo", and the remainder was not counted against Thomas because it was attributable to "new Roo".

275 The final entry in this part of the Record Book was for Thomas' petrol. The date recorded was "1-6 to 30/6/02". The entry recorded the amount of $560.53 being paid in cash. Thuy stated this was money "Thomas owed". This note is explicable on the basis that the "new Roo" had paid a debt of the "old Roo".

276 During cross-examination, Thuy was taken to the Record Book, but she was not challenged on the veracity of the entries referred to immediately above. In my view, they provide further strong probative evidence that, pursuant to the 2002 Agreement, a distinction was made between Roo Sheetmetal before 1 July 2002 and Roo Sheetmetal after that date.[136]

277 Also consistent with the "new Roo" regime is a deposit of $10,000 that was made into Roo Sheetmetal's bank account on 10 July 2002. The deposit receipt was filled out by Thomas, who wrote the words "borrow from Tu Van Phan [ie Thomas]". Thuy gave evidence that Thomas put $10,000 into Roo Sheetmetal as the company had no money to settle bills. Thuy also said that Thomas stated "the money [Thomas] put out must be paid back to him later". There was a similar entry in the deposit book for a further $10,000 on 22 July 2002, again in Thomas' handwriting. Thomas said he could not recall conversations with Thuy in 2002 about money being paid in.

278 Although such entries might have been made in circumstances where Thomas still wholly owned Roo Sheetmetal, they are also entirely consistent with Thomas wanting to keep a record of what was being paid into the "new Roo" so that those moneys could be repaid back to him rather than be for the ongoing benefit of all 4 owners of Roo Sheetmetal.

H.4.6 Conduct as "employees" from 1 July 2002

279 Before June 2002, Thomas had worked with each of Thuy, Son and Joseph at Roo Sheetmetal. He was satisfied with the way they worked. Further, he had previously been in business with Joseph,[137] and worked with Joseph and Son at Double T Sheetmetal.[138] In short, Thomas had an established position of trust with each of Thuy, Son and Joseph. Most of all, he trusted Thuy.

280 Part of Thomas' account of what he told Tina before the relevant family meeting lacked plausibility. In suggesting he never contemplated offering more than full time employment, and that is what he discussed with Tina, Thomas said he wanted to talk to Tina to convince her that he wanted "to help my brother and sister when they have no work, still have no job". But both Son and Joseph did have work; and Thuy was already working at Roo Sheetmetal as well.[139]

281 Further, after 1 July 2002, none of Thuy, Son and Joseph simply acted as mere employees. To a greater or lesser extent, they assumed roles, and in due course obtained benefits, inconsistent with being mere employees.

282 All 3 took on greater responsibility after 1 July 2002. Son moved from being a labourer, to take on managing the production line, including ensuring machinery was in good working order, managing employees' issues, including health and safety, and taking responsibility for ensuring the premises were secured at the end of each day. He initially took these matters on part time, and then, from 2007, on a full time basis.

283 Joseph also took on a larger role, usually working from 7 am to 7 pm, as opposed to approximately 9 am to 5 pm previously (albeit sometimes 6 days a week). Joseph took a more active role in management, including dealing with customers and working out ways to improve production.

284 Thuy also took on a managerial role and did not simply act as an employee at the direction of Thomas. Thuy decided how much was to be paid by way of wages, and made various other executive decisions consistent with being an owner. Although even many years on Thuy still described herself as a bookkeeper in her tax returns, she clearly played a far more significant role. In short, she was nothing less than an executive director.

285 Speaking broadly, each of Thomas, Thuy, Son and Joseph treated each other more consistently with how they were introduced to Brown earlier in 2002; namely as partners.[140] According to Minh, Thomas also referred to them all as "partners" at a family gathering in early July 2002.[141]

286 In relation to each of Thuy, Son and Joseph, in due course arrangements were put in place for their partners to also receive, what might be neutrally described as, benefits.[142] These included "wages", vehicles and telephones. The amounts were significant in total. It seems insurance was also paid in relation to spouses' vehicles.[143] Although it appears these benefits were mostly paid by Oz Sheetmetal rather than Roo Sheetmetal,[144] their existence is evidence of the Family Members being treated as more than simply employees.

287 Further, moving to 2012 when a serious dispute arose, if Thomas' position was that they were simply employees he could have dismissed them. Not only did he not take such steps, he never even threatened to respond in such a way. Although such conduct could have been inconsistent with Thomas' generous disposition and attitude towards others,[145] in the very unfortunate and heated circumstances that ultimately materialised, Thomas' general compassionate attitude is unlikely to explain why he did not at least threaten to cease the employment of the others if in fact he viewed them as mere employees. Not only did Thomas not make such a threat, he did not challenge the authority of the other Family Members when they decided to oust him from the business, and then uncompromisingly implemented that decision in a manner that was quite ruthless.[146] In fact, what Thomas did threaten was to destroy the business of Roo and Oz Sheetmetal.[147] Not only did this show (not surprisingly) he was not acting compassionately towards the other Family Members at that time, but he implicitly accepted that he was not the sole owner and that they were all co-owners of the business or businesses.

288 In 2014, before trial, when Thuy was looking for some documents, she came across a document entitled "Melbourne 5/11/02". The document was written in Vietnamese and was signed by Thomas. The document was prepared in late 2002, shortly before Thomas and Tina departed with their children for a trip to Vietnam. The document read as follows:

As the business is very urgent it is impossible to prepare clear documentation. Should anything unforeseen occurs (sic) to [Thomas] and [Tina]'s family then [Thuy] will take care of all [assets or relatives[148]], including that in Vietnam. Sister Thuy will bring up any surviving child(ren) as if she was their mother. If there is no surviving child(ren), sister Thuy will use this asset to take care of [Thomas]'s parents and [Tina]'s father. Should any sibling need help sister Thuy would consult our parents in order to help that sibling, and a third is for the poor. These are [Thomas]'s wishes. My siblings should not question these and make it difficult for the person entrusted. [Thomas] will not be pleased.

Roo Sheetmetal company has 4 shares: 1. [Thomas], 2. Thuy, 3. [Joseph], 4. Son. Sister Thuy will take care of [Thomas] share, as above.

289 Thuy's evidence was that, in early November 2002 at Roo Sheetmetal's Keysborough factory, Thomas gave this document to her shortly before he departed to Vietnam. According to Thuy, Thomas said "you never know what will happen" and told her to do what the document said "if anything happens". She said she placed the document with her personal papers at her home and had forgotten about it until she discovered it more recently. She denied that she was responsible for the wording of the document, or that she dictated its contents to Thomas.

290 In contrast, Thomas suggested he visited Thuy before he left for Vietnam and that Thuy enquired as to what would happen if Thomas was in "a plane crash or ... got executed in Vietnam maybe". Thomas said Thuy wanted to know what she had to do. Thomas said that, in response, he said to Thuy that she could draw up a document for him to sign, whatever Thuy wanted, because if Thomas died he did not care. Thomas repeated he did not worry about anything at the time the document was prepared, because when he died it was not important to him.

291 In chief, Thomas said Thuy insisted Thomas write the words. Thomas said Thuy got a pen and paper and then Thomas asked what it was he had to write down. In response, according to Thomas, Thuy said that she would state what she wanted. But Thomas accepted that he did expressly state some matters that he wanted written down. The manner in which his evidence unfolded beyond this point is instructive. When asked what was stated immediately above his signature, Thomas gave the following answer in English:

Roo Sheetmetal, 4 shares, 1 for me, 1 for Thuy, 1 for Joseph and 1 for Son. My 1, Thuy, we use after - what I ask her to do for me, my share, I ask for me. That is not my writing, Thuy's, she write it out. She write it, she told me - she read it out, I write it but only the top part here [referring to the first quoted paragraph as set out in paragraph 288 above], I ask her to do it but the last part here [referring to the second paragraph quoted], I didn't, she read it out for me to write it out, I didn't write it out.

When this evidence was given, I invited senior counsel for the defendants to consider whether Thomas should give his evidence in Vietnamese with the benefit of the use of an interpreter on the basis I was forming the impression, about which I might have been wrong, that some of what the witness was saying was not what he meant. I suggested that the last couple of answers he had given contained inconsistencies and I did not think Thomas was deliberately trying to be inconsistent. The matter was adjourned for a short time so that instructions could be given. Upon resumption, I was informed that Thomas wanted to give his evidence in English. Then, Thomas simply gave evidence in chief that Thuy read out the words and Thomas wrote them down. Further, he said he did not "ever think anything because first I ask her, she can write whatever she want to write and I sign it because I think when I die, I don't worry anything".

292 When first taken to the relevant document during cross-examination, in denying that it was a very serious document, Thomas stated that he told Thuy she should write "whatever you want to write, I can sign it for you". However, he acknowledged that what was to happen to his children if he were to die was important. He also said it was very important who looked after his children. He said that Thuy read out the words and he wrote them, but then added that he told her that he wanted certain things. After some further questions, he acknowledged that the first part of the document contained his thoughts and Thuy told him how to express them.

293 Not only did Thomas acknowledge that what happened to his children was important, but he also said giving money to charity was very important to him and was "the main importance because I got a promise".[149] Indeed, he said this was more important than what he said about his children.

294 Eventually, Thomas agreed that all matters in the first paragraph were very important matters. However, he sought to distance himself from the second paragraph of the document.

295 Ultimately, having acknowledged that the document referred to Roo Sheetmetal, Thomas said that in his heart he believed that the document he wrote was truthful and that he gave it to Thuy to look after. He said that, at the time, he trusted Thuy more than anyone in the world.[150] He said that Thuy was like a mother to him. As his evidence progressed, Thomas accepted the significance of the document, notwithstanding his initial evidence down-playing its importance.

296 The wording used in the second paragraph of the document is of considerable significance. Thomas did not refer to 2 shares in Roo Sheetmetal, but 4. There have never been more than 2 shares registered with the ASIC as being issued by Roo Sheetmetal. There is no suggestion that the register is inaccurate in that regard. It follows, a reference to 4 shares was not a reference to the issued shares of Roo Sheetmetal; on the facts, the only plausible explanation is that it was a reference to the 4 of them sharing ownership in accordance with the 2002 Agreement as alleged by the plaintiffs.

297 Further, the document stated that each of the shareholders "has" a share. In contrast to other parts of the document, this part of the document was not expressed in the future tense and ownership was not stated to be contingent upon the death of Thomas. It was purporting to record the existing state of affairs. So much is abundantly clear from the last sentence, which refers to Thomas' share alone to be taken care of by Thuy in accordance with the first part of the document.

298 Furthermore, the last sentence directly linked this part of the document with the first part. I do not accept that any part of the document should be treated differently. The document, written in Vietnamese by Thomas with his own hand and signed by him, recorded Thomas' understanding and intentions at the time. I also find that it is more likely that the document was prepared by Thomas independent of Thuy. The document dealt with matters important to Thomas, matters it is likely Thomas himself would have wanted to decide.

299 Moreover, I do not accept Thomas' initial evidence that he did not care what happened if he died; his own evidence under cross-examination exposed that he cared a great deal. The contents of the document itself demonstrated Thomas was concerned that his wishes were respected without question, otherwise he would "not be pleased".

300 In summary, the document signed on 5 November 2002 is strong probative evidence of Thomas acknowledging a pre-existing agreement whereby Thomas had agreed to divide the ownership of Roo Sheetmetal into 4 equal shares, the 4 "shareholders" being himself, Thuy, Son and Joseph.

H.4.8 Other property purchases and trusts created

301 Mindful of the extent to which evidence of subsequent events may be properly admitted and taken into account,[151] I refer to other property purchases and trusts created to do no more than demonstrate they are consistent with the plaintiffs' case.

302 The Phan United Family Trust did not involve Minh or his family. It only involved the 4 other families of Thomas, Thuy, Son and Joseph. As set out above, the PN Unit Trust had already been established in March 2003, with all 5 families of the Family Members involved.[152] By limiting the involvement of the 4 families referable to those the subject of the 2002 Agreement, it shows that in 2005 the parties were continuing to make a distinction between interests associated with Roo Sheetmetal and those associated with Oz Sheetmetal.

303 Further, Thomas' evidence of his dealings with real property and shares in relation to various ventures with which he was involved demonstrated that on other occasions Thomas agreed to, or put in place, arrangements where beneficial ownership was held by someone other than the legal owner.[153] Although a neutral factor in isolation, the fact that Thomas was willing to deal with real property and shares on this basis on other occasions is a further relevant consideration in determining whether or not he agreed to hold the shares in Roo Sheetmetal equally on behalf of himself, Thuy, Son and Joseph.

304 Of the 2 principal components said by Thomas to have been offered by him, the evidence of neither was convincing.

305 First, offering full time employment seemed to be of no real moment because Son, Thuy and Joseph were already employed in the business, albeit on a casual basis. Further, Son had no desire to commence full time employment on 1 July 2002. Thuy also did not work full time from 1 July 2002.[154] If full time employment had been offered by Thomas, it is likely Thuy would have rejected that offer and suggested an alternative, namely only working part time. There was no suggestion that any such discussion occurred.[155] Finally, with respect to Joseph, Thomas already knew Joseph did not want to be recorded as working more than 18 hours a week[156] for fear of jeopardising his unemployment allowance. Given Thomas was already permitting Joseph to be gainfully "employed" for 40 to 50 hours a week, and to be paid largely in cash to permit the unemployment benefit to continue to be unlawfully received, Thomas would not have sensibly perceived it would have been of any real substantive benefit to offer Joseph full time employment without more. Moreover, an offer of full time employment necessarily includes a wage. However, Thuy did not draw a salary from Roo Sheetmetal.[157]

306 Secondly, as to the alleged promise of an interest in the future, upon his retirement, whenever that might be, this proposal would also be consistent with Thomas' generous nature. However, the other objective surrounding circumstances (both before and after June 2002) suggest that something more immediate was offered by way of ownership. Further, if the agreement with respect to future ownership were in the vague terms that Thomas suggested, then it would be highly likely that, in the ensuing years, there would have been further discussions about the promised future ownership. To elaborate, the business of Roo Sheetmetal, and then later Oz Sheetmetal, was very successful. Given that success, it would be expected that Thuy would have raised the possibility of her and the others taking an interest, along with Thomas retiring or working less. No such discussion ever took place.[158] It would also be expected that, at some stage, enquiries would have been made about the level of profitability needed to be achieved, or the level of income on which Thomas wanted to retire. Further, it would be expected there would have been some enquiry about the extent of the equity in the companies that Thuy and others could expect. Again, there were no such discussions.

307 In summary, I consider Thomas' evidence on this issue was an attempt to manufacture a story to undo what he had very generously done in the past; an act of generosity he now regrets given the very harsh manner in which he has been treated by, in particular, Thuy and Minh. As to Tina, I have already stated that it is quite possible she believed she was giving truthful evidence.[159] Be that as it may, I do not accept her account of what Thomas offered in June 2002.

H.4.10 Further matters of little probative value

308 There were further matters relied upon by the parties to support their respective cases. For the reasons that follow, I found these matters of very limited probative value.

309 At the time of the meeting in June 2002, Thomas held the only 2 issued shares in Roo Sheetmetal. He was both the legal and beneficial owner. He has remained registered as the legal and beneficial owner of the shares until this day. Before the commencement of this proceeding in late 2012, there was never any attempt by any of Thuy, Son or Joseph to have Thomas formally transfer any legal or beneficial ownership of the shares in Roo Sheetmetal. On the contrary, they were willing to act as if Thomas remained the owner.[160]

310 Ordinarily, such matters would weigh quite heavily in favour of the defendants' case. However, the registered position, and the inactivity with respect to any change must be seen in the light that both the plaintiffs and Thomas were far from diligent, or even interested, with respect to such matters before the parties fell into dispute. Further, once the parties were in dispute Roo Sheetmetal held only a very small proportion of the total assets.[161] At that time, I expect the plaintiffs perceived a tactical advantage in allowing Thomas to act as owner of Roo Sheetmetal (and, correspondingly, Minh and Thuy, as the registered shareholders, to act as owners of Roo and Oz Sheetmetal). In 2012, the whole of the business was being conducted by Roo and Oz Sheetmetal, which also held the larger share of the assets.[162]

311 Some of the further matters relied upon by the plaintiffs to corroborate their account of what occurred in 2002 were far from reliable.

312 Thuy referred to cheque butts, deposit book butts and an exercise book she kept, which contained certain annotations. Although, generally, these records appear to have been faithfully kept, Thuy gave evidence concerning some of the entries, and relied upon them in seeking to establish the existence of the 2002 Agreement, as if they were made on or about the date reflected in the entries. I seriously doubt the asserted timing of these entries for a number of reasons.[163]

313 First, with respect to the butts, some entries are made in a different pen or pencil to the pen used for the remainder of the entry. Some of each such entry was clearly contemporaneous with the issuing of the cheque or the recording of the deposit. It would appear on the face of the document that it is likely that the different handwriting was done at a different time. There was no suggestion that Thuy used 2 separate pens or pencils at the same time.[164]

314 Secondly, some of the entries were incorrectly dated. In relation to 1 of the entries, the date of 2011 was entered, and then deleted and replaced with "02". No meaningful explanation was given as to how this entry was first entered incorrectly, other than it was just a mistake. Although possible, it seems highly unlikely someone would accidentally write 2011, if making an entry in 2002. When Thomas was taken to this page of the deposit book, he said he had not seen the note written with the different pen before he was shown it by his lawyers. Another note, said to be made in 2002, recorded the "share start" date erroneously as "1/07/2012". Although not cross-examined about this note specifically,[165] the contention of the defendants that it is likely these entries were made in around 2012, rather than 2002, has some merit.

315 Thirdly, it seems highly unlikely, in the circumstances of this case, that Thuy would have thought it necessary in 2002 to record the 2002 Agreement in writing. One thing that is abundantly clear is that neither Thuy nor Thomas (nor, for that matter, Minh, Son or Joseph), in their discussions in 2002 (or 2003[166]) showed any concern for requiring that any agreements be recorded in writing.

316 Fourthly, Thuy's evidence concerning some of the notes was far from compelling. In particular, a cheque butt, dated 1 July 2002, had written on it (in Vietnamese) "Starting day, Thomas, Son, Thuy and Joseph, 4 shares". Thuy said she wrote this on 1 July 2002 "so that Thomas knew that from this day the 4 of us had shares in the new Roo". But, if Thomas had already expressly stated that each of them would have a share from 1 July 2002, and the parties all trusted each other as Thuy suggested (which they clearly did), there was no need to make such a notation supposedly for the benefit of Thomas' knowledge. Furthermore, Thomas did not keep the cheque books from 1 July 2002; Thuy kept them in her possession. There was no suggestion she brought the note to his attention. In short, the explanation for the note did not make much sense.[167]

317 In the absence of clearer evidence, I am not willing to positively find that Thuy (or anyone else) fabricated the documentation at some later point in time.[168] That said, for the reasons stated, I am not satisfied that the annotated documents referred to above are of any real probative value in supporting the plaintiffs' case concerning the 2002 Agreement.

H.5 The 2002 Agreement manifested an intention to create a trust as alleged

318 By declaring that each of Thuy, Son, Joseph and himself would be the owners of Roo Sheetmetal from 1 July 2002, at a time when Thomas was the sole legal and beneficial owner of Roo Sheetmetal, and evinced no intention to change the legal ownership of the shares in question, Thomas' declaration of his intention, which was accepted by Thuy, Son and Joseph, manifested an intention to create a trust for the ownership of Roo Sheetmetal.

319 To elaborate, a clear intention was made manifest that from a specific date, namely 1 July 2002, the shares in Roo Sheetmetal would be held for identified beneficiaries equally. In short, the trust created was as alleged by the plaintiffs.

320 The defendants made numerous submissions as to why the plaintiffs' case concerning the 2002 Agreement could not succeed. None of them was convincing.

321 First, it was submitted that neither Thuy nor Son, both of whom gave evidence that it was Thomas who made the offer, said anything about Thomas expressly offering an equal share with him in Roo Sheetmetal. Despite Thuy giving evidence of her belief, Joseph alone gave evidence of the equality of ownership being expressly discussed, though he said it was Thuy who stated that, rather than Thomas. This submission accurately reflects the evidence. However, it is not fatal to the plaintiffs' case. In short, there is evidence that Thuy suggested the equal share and that Thomas agreed. The fact that Thuy and Son did not specifically recall this when they gave their evidence does not mean that it did not occur. Further, Joseph's evidence and the objective evidence above satisfies me that it did.[169]

322 Secondly, it was submitted that insofar as the alleged agreement referred to "profits" being jointly shared, this would cover a very wide range of scenarios, including entitlement to different proportions. In isolation, that is correct. Further, there is inherent ambiguity in the meaning of "profits". However, these matters, and like observations in relation to the meaning of the word "losses", might be of considerable significance in considering issues of whether or not a legally binding agreement had been entered into which was enforceable. However, they do not touch upon whether what was said manifested an intention to create a trust, nor do they give rise to any uncertainty concerning the subject matter or the object of the trust.

323 Thirdly, the defendants correctly point out that none of Thuy, Son or Joseph gave any evidence to the effect that Roo Sheetmetal would pay profits to Thomas for his contribution before 30 June 2002 "after taking into account Roo Sheetmetal's trade creditors and trade debtors as at 30 June 2002".[170] To that extent, the plaintiffs have failed to establish the pleaded case.[171] However, the existence of an agreement on this particular issue, in the manner in which it was pleaded, is not essential to the plaintiffs successfully establishing the express trust for which they contend.

324 Fourthly, it was submitted that the version of events proffered by Thuy, Son and Joseph was inherently unlikely. This was submitted on the basis that Roo Sheetmetal, Thomas' second sheetmetal business was becoming successful. Given Thomas had established this business himself, and his overall circumstances, it was contended it would be counterintuitive to conclude that he would have decided to effectively "gift" 75 per cent of Roo Sheetmetal's business to Thuy, Son and Joseph. In the context of the evidence as a whole, it is entirely plausible, and likely, that Thomas would have acted as I have found. In addition to Thomas' generous disposition and what Son and Thuy had done for Thomas in the past, Thomas was also securing the services and commitment to the business of 3 people he trusted. These factors, together with further matters referred to below, run contrary to the suggestion that the case of the plaintiffs concerning the events in 2002 was unlikely.

325 Fifthly, reliance was placed upon the fact that it was not until February this year that an express trust was pleaded. It was submitted that a delay of 12½ years in making the allegation suggests that Thomas never committed to creating a trust in 2002. Whilst this submission has some attraction, a close consideration of the history shows that a trust was always in contemplation. This is reflected in the evidence concerning "ownership" as it was assumed to exist after 2002. Further, the facts as relied upon in the Statement of Claim were the facts as originally pleaded from the outset of the proceeding. In substance, the amendment in February 2015 was to identify the proper legal characterisation of what occurred, based on the material facts as previously pleaded.

326 Sixthly, the defendants submitted that the fact that the register maintained by ASIC remained unaltered from July 2002 until today could not be reconciled with allegations of an express trust. This is not correct. After 1 July 2002, Thomas still held the shares beneficially, albeit only as to 25 percent. In that regard, the absence of any amendment might be said to be entirely consistent with the plaintiffs' case.[172] In any event, it is clear that none of the Family Members placed any real significance upon whether or not matters as registered reflected the agreements that had been reached.[173]

327 Seventhly, it was submitted that there was a disconnection between the 2002 Agreement as alleged in paragraph 9 of the Statement of Claim, and the further paragraph alleging the express trust which commenced with the words "[b]y reason of paragraph 9, ...". In essence, the defendants submitted that what was pleaded in paragraph 9 amounted to the pleading of a gift to Thuy, Joseph and Son of 1 share each in Roo Sheetmetal, and that this pleading was inconsistent with the manifestation of an intention to create an express trust. I do not agree.[174] There were only 2 shares in Roo Sheetmetal. There was never any suggestion by Thomas, or anyone else, that further shares would be issued so that each of Thomas, Thuy, Son and Joseph could legally own a share. It is plain that what was intended was that Thomas would continue to hold the shares, but that the beneficial ownership of those shares would be the subject of a trust.

328 Eighthly, the defendants attacked the plaintiffs' case on the basis that it was not specifically put to Thomas in cross-examination that he intended to create a trust of his shares in Roo Sheetmetal for the benefit of himself, Thuy, Son and Joseph. In my view, it was unnecessary to put such a matter directly. The subjective intention of Thomas in 2002 is not relevant to the issue of whether or not an intention to create a trust was manifested from the communications between the parties.[175]

329 From 1 July 2002, Thuy took over the finances of Roo Sheetmetal. In a number of respects, she continued to conduct the business as Thomas had done previously. This included banking moneys received from Roo Sheetmetal's customers, but also placing at least some of the cash receipts into the "cash fund", from which various cash payments were made on an ongoing basis.

330 This practice concerning the "cash fund" was extensive and ongoing.[176] Separate from the Record Book, Thuy maintained an exercise book, which she referred to as the cash payments record book ("the Cash Book"). The Cash Book recorded both payments and receipts. It covered a period from 1 July 2002 to 17 May 2005, upon which date, according to Thuy, cash payments ceased. In the Cash Book, Thuy recorded that thousands, and often tens of thousands, of dollars were received and paid by cash each month.

331 It appears the Cash Book was separate from the official records of Roo Sheetmetal. Not only was the reconciliation of the financial accounts confined to the bank statements,[177] rather than the total amounts received and paid, but other records excluded transactions that involved cash. For example, the payroll activity summary prepared by Thuy for the financial year to 30 June 2004 did not include Son or others who were paid in cash. As Thuy put it:

All these people who were paid cash didn't have their names on this list. All the people who work and pay tax, their names are on here.

Precisely from where the funds came for cash wages was not clear. It appears from some cheque butts that at least some of the cash wages were paid from Roo Sheetmetal's bank account.[178]

332 When Thuy started to get involved with Roo Sheetmetal in around March 2002,[179] she did not know how to use accounting software, or computers generally. At the time, Minh was conducting an electronics business and was trained in using computers. Thuy sought Minh's help, initially to set up a computer payroll system. Thuy attended at Minh's home in the evening to be taught about such things. Sometimes she would travel to Minh's house; other times she was already staying there because of marital issues.[180]

333 At some point in around mid 2002, Thuy suggested to Minh that Minh might want to join Roo Sheetmetal as it was "going alright" and she thought it was a good business. Thuy also raised the issue with Nga. Minh rejected the suggestion.

334 Later in 2002, Thuy said to Thomas, Son and Joseph that Roo Sheetmetal needed a person like Minh because he was a business man and knew about computer technology.

335 As noted above,[181] in March 2003 PN & Nominees was incorporated and the PN Unit Trust was established. Around this time, Thomas, Thuy, Son, Joseph and Minh were all actively involved in inspecting property for the possible establishment of a factory in the western suburbs. Thomas inspected a property in Arvona Avenue, Sunshine North with Minh and Thuy and "check[ed] out everything". Thomas said to them that it was a good place for business.

336 In March or April 2003, Thuy again raised with Minh the possibility of joining Roo Sheetmetal. By this time, Roo Sheetmetal had over $100,000 in its bank account.[182] According to Minh, Thuy asked him whether he wanted to be a partner. Also according to Minh, at a family gathering, he told Thomas, Thuy, Son and Joseph that he would not work at Roo Sheetmetal for long as he was only there to gain experience because he intended to open a new sheetmetal business himself.

337 After discussion between the Family Members, Minh worked at Roo Sheetmetal for about a week. He then sold his electronics business. That business was not very large. Minh saw a brighter future for himself in the sheetmetal business, based partly on his observations of Roo Sheetmetal.

338 On or about 27 May 2003, Thomas signed a letter as a director of Roo Sheetmetal addressed to PN & Nominees. The letter had been prepared by Thuy. She created a letterhead for the letter which was different to Roo Sheetmetal's usual letterhead. Why she did this was not clear, but the letter was plainly purporting to be a letter from Roo Sheetmetal. The letter was entitled "the lease for property of 40 Cambria Road, Keysborough". This property had been purchased in April or May 2003. The deposit of $35,500 was paid by Roo Sheetmetal. According to Thomas, he and Thuy had discussed purchasing the property. Thuy said it was discussed with all the Family Members. I accept Thuy's evidence.[183]

339 The letter was addressed to Minh, who at that time (together with Thomas) was a director of PN & Nominees. By the letter, Thomas agreed on behalf of Roo Sheetmetal to a "9 years lease which is 3 + 3 + 3" at the annual rental of $43,200 plus goods and services tax, with certain adjustments after 3 years.[184]

340 Like many other documents signed by Thomas, he denied any recollection of signing the letter dated 27 May 2003. Thomas pointed out that the letterhead was not Roo Sheetmetal's usual letterhead. When he was shown the document he said he had never seen it before, even though he acknowledged it was his signature.

341 With respect to the property at 15-17 Arvona Avenue, Sunshine North, a contract had been entered into by Minh "and/or Nominee" on 24 April 2003. Thuy provided Minh with a cheque, from Roo Sheetmetal's funds, for the deposit of $39,500.

342 At the time, PN & Nominees was seeking finance from the National Australia Bank for the purchase of both 40 Cambria Road, Keysborough and 15-17 Arvona Avenue, Sunshine North. The letter dated 27 May 2003 was used in support of that finance application, demonstrating that Roo Sheetmetal would pay rent to PN & Nominees.[185]

343 Although Thomas may now have forgotten signing the letter, I do not accept his evidence that he has never seen the document before. There was no suggestion that the document had been fabricated after it had been signed by Thomas. This letter and the related transactions are evidence of the fact that, in around May 2003, the family was contemplating introducing Minh to the business,[186] though the means by which it was to occur had not been finalised.

344 Upon settlement, both 40 Cambria Road, Keysborough and 15-17 Arvona Avenue, Sunshine North were purchased by PN & Nominees as trustee for the PN Unit Trust. On 11 July 2003, PN & Nominees repaid $39,500 to Roo Sheetmetal for the deposit paid 24 April 2003.[187] PN & Nominees remained the owner of 40 Cambria Road, Keysborough until 26 June 2009, when the sale of the property to a third party was completed. At the time of trial, 15-17 Arvona Avenue, Sunshine North continued to be owned by PN & Nominees.[188] No formal lease agreements were ever entered into with respect to either property.

345 From around July 2003, Minh commenced work with Roo Sheetmetal at the Keysborough factory on an ongoing basis. Minh had very few skills in sheetmetal manufacturing at this point in time. Both Thomas and Joseph spent time with Minh teaching him what was required.[189]

346 The questions to be answered with respect to whether the 2003 Agreement was entered into are similar, but different, to the questions asked in relation to the 2002 Agreement. The fundamental difference in the circumstances in August 2003 was that Oz Sheetmetal had not come into existence at that point in time. Accordingly, the 3 questions are:

(1) Deciding what was said and agreed to by Thomas, Minh, Thuy, Son and Joseph as to the legal and beneficial ownership of the shares in the proposed company (which became Oz Sheetmetal).

(2) If (1) is decided in the plaintiffs' favour, whether what was said and agreed to by all manifested an intention to create a trust upon the issuing of shares in Oz Sheetmetal when incorporated.

(3) If (2) is answered affirmatively, was it a trust as alleged by the plaintiffs?

J.2 The agreed facts and the registered documents

347 The task for the court, in determining what occurred in around August 2003, may be approached with more certainty in a number of respects. It was agreed between the parties that it was Thuy who first raised with Thomas the possibility of Minh becoming involved. On either version of events, it was expressly agreed Minh would hold 40 percent, and Thuy would hold 60 percent, of the shares in Oz Sheetmetal as the legal owners. Also it was accepted by all parties that there was an agreement pursuant to which the legal ownership of the shares was to be held on trust.[190] In essence, the dispute concerns on whose behalf the shares in Oz Sheetmetal were to be held. The resolution of this dispute is complicated by the unsatisfactory manner in which both legal and beneficial ownership was recorded and registered.

348 There is no dispute that the 2 issued shares in Oz Sheetmetal were held in Minh's name, from 4 September 2003 to 26 February 2004. Then, from 26 February 2004 onwards, both Minh and Thuy were, and remain, registered as the legal owners of 1 share each, that is 50/50. Accordingly, on either version of events, the holding of the shares by Minh and Thuy bore no resemblance to anything that was expressly agreed between the parties. Curiously, no one could give any evidence whatsoever of an agreement, express or implied, consistent with how the legal ownership of the shares was held.

349 Minh said it was Danh who attended to the paperwork for the incorporation of Oz Sheetmetal. Minh said he could not recall whether he or Thuy gave instructions to Danh. Danh said it was Thuy who gave the instructions to incorporate Oz Sheetmetal. Danh retained another firm for these purposes, and gave no specific evidence on why things were done the way they were.

350 As to the registration of the shareholding, Minh refrained in his evidence in chief from giving any evidence as to how or why the shares were registered as they were. When Minh was asked directly why the shares were initially issued in his name, and then in his and Thuy's names on the basis set out above, he did not provide any explanation. The historical extract of Oz Sheetmetal records that Minh held both the legal and beneficial ownership of 1 share, whereas Thuy's share is recorded as being held for the benefit of others. Again, no witness gave any evidence as to why the ownership was recorded in this manner.

351 It is truly extraordinary that neither Minh nor Thuy could provide any explanation as to why they alone were registered legally as shareholders in Oz Sheetmetal in the proportion that they were, and why they purported to hold the shares beneficially or otherwise as registered, when both of them stated this was never the agreed position.

352 As to directorships of Oz Sheetmetal, Minh was registered as the sole director of Oz Sheetmetal on 3 September 2003. On 26 February 2004, Thuy became a registered co-director.

353 None of Thomas, Son or Joseph has ever been registered as a shareholder or a director of Oz Sheetmetal. There is little doubt that each of them considered themselves to be directors.[191] Amongst other things, this is reflected in business cards that were created in 2009 or 2010.[192]

354 The case put by the plaintiffs was that in August 2003, Minh agreed with Thomas, Thuy, Son and Joseph to establish Oz Sheetmetal. Based on this agreement, Oz Sheetmetal would conduct a business of manufacturing airconditioning ducts, but from a new location, and Roo Sheetmetal would continue as before. Minh said this was on the agreed basis that he was a 40 percent legal and beneficial owner of Oz Sheetmetal.[193] Each of Thuy, Son and Joseph gave similar evidence. They all gave evidence that 60 percent of the shares were to be held on trust by Thuy. Thuy also gave evidence that it was agreed the interests of Thomas, Thuy, Son and Joseph were to be divided equally, so that each owned 15 percent. The 2003 Agreement was said to be struck at a family meeting at Minh's house at which each of Minh, Thuy, Son, Joseph and Thomas was present.[194]

355 There were no contemporaneous documents to support this ownership structure having been agreed. This was explained on the basis that there was trust between the Family Members and it was not necessary to do "the paperwork" in order to record what had been agreed.

356 The case put at trial by the defendants was that the shares in Oz Sheetmetal were agreed to be held by Minh (40 percent) and Thuy (60 percent) on trust for Roo Sheetmetal. The manner in which this was agreed was said to be based solely on discussions between Thomas and Thuy. In his evidence in chief, Thomas said he had no discussions with Minh or any of the others, and rejected the suggestion that a family meeting was held to discuss how the ownership of Oz Sheetmetal was to be established. The Defence and Counterclaim pleaded that Thomas agreed to this arrangement, which included giving Minh full time employment, as a "further act of beneficence to assist a family member".

357 The account given by Thuy, Son, Joseph and Minh is far more likely, and I find that the shares in Oz Sheetmetal were beneficially held on the basis contended for by the plaintiffs. There are a number of reasons for this.

358 In part, the case of the defendants does not sit comfortably with the evidence of Thomas. According to Thomas, in early 2003, he told Thuy that Minh was to hold 40 percent of the shares on trust "for me" and Thuy was to hold 60 percent of the shares "on behalf of me". The explanation Thomas gave for having the shareholding other than in his name or the name of Roo Sheetmetal was that he did not want "for me" to pay too much tax. (There was no suggestion that the structure Thomas proposed for Oz Sheetmetal would in fact reduce his tax, or that he got any advice to that effect.[195]) Moreover, the fact that the shares were to be held for Thomas and not for Roo Sheetmetal was emphatically and repeatedly confirmed during Thomas' cross-examination.[196]

359 The case as ultimately put by the defendants was also different to how it was initially pleaded. In the Original Defence, the defendants pleaded that, in mid-2003, Thuy informed Thomas that Minh wanted to assume a more substantial role in the business and that Minh was concerned he had not been included in the plan for Thuy, Son and Joseph to acquire an equity share in Roo Sheetmetal in the future (as per Thomas' version of what was agreed in 2002[197]). It was further pleaded that Thuy pressed Thomas to give Minh a management role in Roo Sheetmetal and to offer him the possibility of future equity in the business.

360 The Original Defence also alleged that, because of the trust Thomas had in Thuy, Thomas decided to establish a second factory and offer Minh a role as production manager with the possibility of Minh receiving an equity share in the "business conducted by the new factory" in the future on the same terms that had been offered to Thuy, Son and Joseph in relation to Roo Sheetmetal. The Original Defence alleged this offer was accepted by Minh and that, "accordingly, in or about August 2003, [Thomas] requested Thuy to organise the incorporation of [Oz Sheetmetal] to operate the second factory, and directed that 60% of the shares in the new company be held by her on [Thomas]'s behalf, and that the remaining 40% of the shares in the new company be held by Minh on [Thomas]'s behalf" (emphasis added).

361 The Original Defence made no allegation of any agreement or understanding that the shares in Oz Sheetmetal were to be held on behalf of Roo Sheetmetal, or that Oz Sheetmetal was to be or became a subsidiary of Roo Sheetmetal. On the contrary, the Original Defence made it plain that on the then pleaded version of events, Roo Sheetmetal's and Oz Sheetmetal's ownership were to be treated differently and distinctly; with Minh to have an opportunity to receive equity in Oz Sheetmetal (along with the others), but not Roo Sheetmetal (unlike the others).

362 All of these matters from the Original Defence were ultimately deleted and replaced with the following:[198]

Prior to Oz Sheetmetal being incorporated [Thomas] discussed with Thuy incorporating another company to undertake the operations of the second factory as part of Roo Sheetmetal's business for the purpose of minimising the tax payable by Roo Sheetmetal, and in particular suggested to Thuy that she hold the shares with Minh in the new company 60/40 for the benefit of and as employees of Roo Sheetmetal.

(Emphasis added.)

363 There was no suggestion that the Original Defence was other than consistent with the then instructions provided by the defendants. This is hardly surprising given the allegations contained in the Original Defence were consistent with those made by the defendants' solicitors in their letter sent on 28 November 2012 to the plaintiffs' solicitors.[199] Self-evidently, that letter was sent after detailed instructions had been given by Thomas, in 2012, on his own behalf and purportedly on behalf of Roo Sheetmetal.

364 No satisfactory explanation was given as to the fundamental shift in the defendants' case concerning what was agreed in 2003.

365 Returning to the defence as finally pleaded, the evidence given by Thomas did not bear out the allegation that there was ever any agreement that the shares in Oz Sheetmetal were to be held "for the benefit of ... Roo Sheetmetal". Even if I had not rejected Thomas' account of the events in 2003, his evidence does not support the case that Thomas and Thuy agreed it was for Roo Sheetmetal that the legal ownership in the shares was to be held, or that Oz Sheetmetal was to be a subsidiary of Roo Sheetmetal.

366 In addition, there were further significant difficulties and illogicalities in Thomas' version of events. First, it is highly unlikely, given that the family met on a regular basis, that Thomas never had any discussions with Minh about Minh's new role. Also, there would have also been ample opportunity to discuss Minh's involvement at work or on the telephone. In short, there appears to be no cogent reason why Thomas would not have spoken at all to the person he was willing to trust to run a new business out of a new factory with a new company on the other side of Melbourne. This is particularly so given that, even according to Thomas, Minh was to be the legal owner of 40 percent of the shares to be held for the benefit of Thomas (or Roo Sheetmetal).

367 Further, I do not accept Thomas' evidence that he never trusted Minh at any time. The level of trust Thomas had was undoubtedly less than the trust he placed in Thuy. However, if Thomas had no trust in Minh, it seems highly unlikely he would have given Minh so much responsibility in respect of the Sunshine North factory, and even less likely he would have agreed for Minh to be the legal owner of shares in the new company. Thomas' denial of any discussions with Minh (and Son or Joseph) may have been perceived by Thomas as a convenient manner to avoid being challenged on his version of events. Whatever the reason for this approach, I do not accept it reflects what occurred. Indeed, under cross-examination, Thomas contradicted himself in this regard.[200] The evidence of the other Family Members is that they all discussed this important decision. I accept this evidence.

368 Secondly, Thomas contradicted himself when giving evidence as to his discussions about the possibility of Minh's involvement. Initially, in his evidence in chief, Thomas said he told Thuy in 2003 that it was not really fair for Minh to join "in with us" in Roo Sheetmetal. Thomas said he told Thuy, "we work very hard because they all be running for years and now he starts jumping in and it wouldn't be fair for others, other brothers and sisters, so I thought I maybe get some other way to help him out, in a different way".[201] It appears his senior counsel was not content with this answer. Upon the answer being given, he immediately told Thomas to slow down. He then stated that he would be criticised by his opponent for cross-examining, but then inquired (without objection) whether Thomas had just said the others had been running for "a year". That is not what Thomas had said. Despite this, Thomas agreed with the proposition. Thomas was again invited to say what he had told Thuy. Thomas then stated that he responded to Thuy when she stated that Minh wanted to join the business, by telling Thuy: no, it was not fair for others and that Thomas already wanted to set up a business in Sunshine. Thomas then gave evidence as to why he had already had a desire to set up in Sunshine and that he wanted the shareholding to be held 40 percent by Minh and 60 percent by Thuy. On the question of fairness, this was the extent of his evidence at this point. A luncheon break interrupted Thomas' evidence in chief.

369 Upon resuming at 2.00 pm on the same day, senior counsel for the defendants revisited the issue of the discussion between Thomas and Thuy about Minh joining the business. Senior counsel said that he thought Thomas had told the court something would be unfair. Thomas was then asked again what he said to Thuy. This time, Thomas gave a different explanation. He stated that he said to Thuy that, because Roo Sheetmetal had many staff already, it would not be fair for Minh to join the business. In particular, he stated it would not be fair for Joseph if Minh maybe took Joseph's place. His explanation as to why this might occur was because there were already many staff and perhaps there would be conflict. He said Minh spoke fluent English and was switched on, so he thought he could "look after my business in Sunshine maybe better". None of this account of what was said was put by Thomas' senior counsel to Thuy when she was cross-examined.

370 Under cross-examination, Thomas confirmed that he was worried about conflict between Joseph and Minh and that was the reason why he thought Minh should not join the business of Roo Sheetmetal. He stated that he could not have 2 brothers-in-law for 2 foremen, because maybe in the future that would be even harder for "us".

371 Later during his cross-examination, Thomas said he told both Minh and Thuy it was not fair for Minh to have a position at Roo Sheetmetal because if Minh went to Roo Sheetmetal he would take the place of others and there would be a lot of conflict between brother and sister.

372 When asked further about what Minh was entitled to, Thomas rejected that Minh was offered the possibility of an equity share in the future. However, he did say that he told Thuy that everyone would have an equal share when he retired, though not an equal share with him. When asked what Minh's share in the future would be, Thomas said he did not know how much he would give him, but his intention was to make sure his brothers and sisters all had equal shares amongst themselves "in both businesses". Thomas accepted that even though Minh was not going to work at Roo Sheetmetal, he intended that Minh would have an equal share with the others depending on how he performed. This seems to run counter to Thomas' evidence about wishing to be fair to those Family Members who had been working at Roo Sheetmetal before Minh's involvement, and that Thomas wanted to help Minh "in a different way".[202] This account is also inconsistent with the case put in the Original Defence.[203]

373 In closing submissions, there was no attempt to explain why it was that Thomas gave different accounts as what he said to Thuy concerning the reason why he did not accept Minh into the Roo Sheetmetal business. Further, the very premise of Thuy's question to Thomas about Minh "joining in with us" at Roo Sheetmetal is consistent with an existing interest of each of Thuy, Son and Thomas in the Roo Sheetmetal business.[204]

374 Thirdly, Thomas' explanation as to why he agreed to Minh having a 40 percent shareholding in Oz Sheetmetal was far from convincing. He said he did not want Thuy to hold 100 percent of the shares because he did not know what would happen to her and if "something happen" no one would know what was going on. This is illogical. On either scenario, Thomas was appointing Minh to run the Sunshine North factory. Thomas then stated that if he made Minh a 40 percent shareholder, Minh would know that the company belonged to Thomas. Again, this is not logical. If Thomas wanted to clearly indicate to Minh that Minh did not have any ownership of Oz Sheetmetal, then he could have given Minh no ownership of any shares, legal or otherwise. Finally, he stated that he wanted to have 2 people holding the shares because you could not rely on 1 person, even though he trusted Thuy, because if "something happens, husband and children, I don't know". However, if Thomas had no trust for Minh as he asserts, and he wanted a shareholder in addition to Thuy, he easily could have had Son or Joseph hold the remaining 40 percent. Little of his explanation in this regard made sense.

375 When the absence of trust in Minh was raised in cross-examination, Thomas said he made Minh a shareholder because he loved his family and his sister Nga and at the time she had no work and Minh was still looking for a job, so he thought he would "get them in" because of his sister Nga. Again, none of this explains the decision for Minh to be a shareholder. Minh could have simply been appointed the production manager and have been no more than an employee.

376 Fourthly, Thomas' recollection of events in 2003 was not good. When asked by his own senior counsel about events in 2003 concerning the inspection of the property at Arvona Avenue, Sunshine North, Thomas stated that he could not recall much because he had been extremely stressed for the last 2 years. Obviously, being removed from the family business, and then treated in the manner Thomas was, must have been extremely stressful.[205] It was quite apparent that the way in which Thomas has been treated by the other Family Members has taken its toll. It follows that Thomas' denials of certain events do not carry the same weight as someone who was able to demonstrate a good recollection.

377 Fifthly, in denying that any meeting occurred in August 2003, the defendants submitted that there was no need for such a meeting at that time. Reliance was placed upon the fact that a bank account was not opened until October 2003, and the business did not commence until 2004. However, Oz Sheetmetal was incorporated in early September 2003. Further, the Original Defence specified that it was in about August 2003 that Minh agreed to accept Thomas' offer concerning the new factory. In other words, the evidence of the plaintiffs as to the timing of the meeting coincides with Thomas' account as to when an agreement was struck as originally pleaded.[206]

378 In contrast to Thomas' evidence, the evidence given on behalf of the plaintiffs in relation to the 2003 Agreement was far more plausible.

379 I accept the evidence of Minh that Joseph or someone else[207] at a family meeting said it would not be fair for Minh to become a shareholder in Roo Sheetmetal. By 2003, each of Thomas, Thuy, Joseph and Son, to varying degrees, had contributed to the success Roo Sheetmetal was becoming. Minh's account is more closely aligned with Thomas' initial version of why there was a discussion about Minh joining the Roo Sheetmetal business being unfair.[208]

380 Further, the account of the plaintiffs is more consistent with the state of affairs as I have found them to be pursuant to the 2002 Agreement. The 2003 Agreement as alleged by the plaintiffs introduced Minh, but still maintained the equality among the Family Members the subject of the 2002 Agreement.

381 Furthermore, weighing in favour of the plaintiffs' case is the fact that, in the time leading up to the 2003 Agreement, Thuy and Minh were making personal commitments that went far beyond being a mere employee or a prospective employee. As part of the arrangements entered into with the National Australia Bank in mid 2003, mortgages were granted over the family homes of Minh and Nga, and of Thuy and Trung.[209] This same commitment was made by Thomas and Tina. Together with the mortgages, personal guarantees were given for $800,000 by Minh, Trung, Nga, Thomas and Tina.

382 Although all these commitments were made in the context of the PN Unit Trust and facilities being offered to PN & Nominees, such transactions do not sit comfortably with Thomas' assertions that he did not have any trust in Minh and that Minh was to be treated as a mere employee.

383 Also inconsistent with Minh being a mere employee is the fact that Minh contributed approximately $40,000 to purchase a machine from Vietnam to be used by Oz Sheetmetal. Although there were no contemporaneous documents recording this, the plaintiffs submitted that this was explained by the fact that business was often done in cash.[210]

384 Again, the fact that the accounts given by each of Minh, Thuy, Son and Joseph of what was discussed in August 2003 do not align completely does not undermine the plaintiffs' case. Given the lapse of time, it would be extraordinary if the recollections of each of Minh, Thuy, Son and Joseph were identical. In substance, the accounts given by each of them substantiated the plaintiffs' case.

385 The case by the plaintiffs is also supported by later events, which strongly suggest that all parties accepted that in 2003 an agreement had been struck in accordance with the case put by the plaintiffs. These later events included the Family Members being introduced as owners of the companies,[211] Oz Sheetmetal and Roo Sheetmetal transacting with each other in the manner that they did,[212] the discussions in April and May 2009 which proceeded on the basis that the ownership was shared amongst the Family Members,[213] and the reaction of Thomas when the other Family Members decided to dismiss him.[214]

386 On this last point, of particular significance is that Thomas made no assertion of owning Roo and Oz Sheetmetal himself, to the exclusion of the other Family Members, for some considerable period of time. In the sometimes heated discussions between the Family Members in 2012 before Thomas departed, Thomas never asserted he wholly owned Roo Sheetmetal or Roo and Oz Sheetmetal. Further, from late June 2012, when Thomas was dismissed, approximately 5 months lapsed without Thomas seeking to assert that he was the sole owner of Roo and Oz Sheetmetal. This was despite the fact that there were numerous communications between the parties, including those involving lawyers retained on Thomas' behalf.[215]

387 Finally, a complication arises on the evidence for the defendants. Their case is that Thomas only spoke with Thuy on the issues relating to the shareholdings in Oz Sheetmetal. There is no evidence that Thuy ever suggested to Minh that he would be required to act as trustee for Roo Sheetmetal or Thomas. Such a proposition was not put to Thuy or Minh. Accordingly, there is no evidence of Minh accepting such a position and no evidence upon which to draw an inference to that effect. Perhaps this explains why the defendants also put the alternate case of a constructive trust.

388 In their Defence and Counterclaim, the defendants properly raised an issue about the fact that the shares in Oz Sheetmetal were originally held solely by Minh at a time when the plaintiffs allege the intention to create a trust already existed on the basis that the legal ownership would be 60 percent held by Thuy and 40 percent held by Minh. The defendants then pleaded a "resettled second alleged trust" based on the fact that Thuy became a shareholder from 26 February 2004.

389 It is correct to highlight the difficulty that if, as the plaintiffs allege, the intention to create a trust was manifest in August 2003, then the shares must have been impressed with the trust at the time Minh held all the shares in Oz Sheetmetal in September 2003. It is also correct to plead that this arrangement was not reflected in any discussions. On any view, Minh alone taking legal ownership of these shares was inconsistent with the 2003 Agreement as alleged.

390 Even though this factual inconsistency between the 2003 Agreement and what occurred shortly after is ostensibly problematic, in my view it does not result in the plaintiffs' failing to establish their case on the express trust created in 2003. Whether the plaintiffs' or the defendants' account of events is accepted, Minh becoming the sole shareholder in September 2003 was inconsistent with both versions. In the absence of any explanation as to why things occurred as they did, I propose to treat the shareholding of Oz Sheetmetal from September 2003 to February 2004 as yet another example of how the parties in this proceeding often did not formalise matters consistently with what had been agreed. It is not, of itself, compelling evidence which establishes that no agreement was created as alleged, or that an intention to create a trust was not manifest.

391 The correct analysis is that Minh, undoubtedly with the full knowledge of Thuy, initially acted contrary to what had been agreed. Further, in February 2004, Minh and Thuy took steps to put in place the legal ownership that more closely resembled what had been agreed, albeit still different. The conduct of Thuy and Minh in this regard was most unsatisfactory. They seemed to consider themselves at liberty to act otherwise than in accordance with what had been agreed. I do not accept that both of them had no idea as to why they did what they did. Perhaps it was considered to be all too difficult to arrange, given that Oz Sheetmetal only had 2 issued shares. In any event, whatever their motive or reason at the time and whatever be the legal ownership at any particular point in time, the beneficial ownership had been agreed, and the legal ownership was impressed with the trust as agreed.

J.6 The 2003 Agreement manifested an intention to create a trust as alleged by the plaintiffs

392 For reasons already stated,[216] there is no issue that an intention to create a trust was manifest with respect to the shares in Oz Sheetmetal. In rejecting Thomas' account of the trust created, and accepting as more probable the account by the plaintiffs, I find there was a clear intention manifest in August 2003 that, from the date of incorporation of Oz Sheetmetal, the shares in Oz Sheetmetal would be held for the identified beneficiaries, namely Minh as to 40 percent, and each of Thomas, Thuy, Son and Joseph as to 15 percent.

393 This position is supported by the events in 2002. Although the circumstances were different, the arrangements made demonstrate a pattern in the dealings between Thomas, Thuy, Son and Joseph.[217]

394 The defendants submitted there was no logical reason why Roo Sheetmetal would provide funds, give away work and customers, and divert Thomas' time and expertise towards Oz Sheetmetal unless Oz Sheetmetal was a subsidiary of Roo Sheetmetal. This submission ignores the family dynamic in play, Thomas' disposition and willingness to give, and also Thomas' evidence about wanting to assist his sister, Nga.[218]

395 In making the findings as set out above, necessarily the allegations in the Defence and Counterclaim concerning what was agreed in 2003 are rejected.[219]

K. Events from late 2003 to April 2009 (and related events)

396 After Oz Sheetmetal was incorporated, things were progressively put in place for a new business to be established. A bank account was opened on 17 October 2003. Roo Sheetmetal provided funds to Oz Sheetmetal, as Oz Sheetmetal had no start-up capital. An amount of $1,000 was paid on 23 December 2003. On 19 February 2004, $10,000 was transferred to Oz Sheetmetal's account. And a further $70,000 was transferred on 26 February 2004.[220]

397 Initially, Minh continued learning about the sheetmetal business. He was employed by Roo Sheetmetal from July 2003 to February 2004.[221] By the end of February 2004, Minh was working at the new factory in Sunshine North, preparing to start operations. Minh was cleaning up the factory, as well as putting certain equipment and machinery in place.[222] This included 2 metal folders, welders, a guillotine, a "Pittsburgh machine", together with a forklift. In the early stages, all of the machinery came from Roo Sheetmetal.[223] According to Joseph, Minh raised the need for machinery at the new factory when present at Roo Sheetmetal's Keysborough factory. Also present were Thuy, Son and Thomas. In response to Minh's observation, Joseph said Roo Sheetmetal would provide some machinery in return for payment. Joseph could not recall a discussion about the terms of payment.

398 When asked under cross-examination why Roo Sheetmetal agreed to provide the machinery to Oz Sheetmetal, Joseph responded, "because we are part of Oz [Sheetmetal] as well" and said it was "our responsibility" to support Oz Sheetmetal. He also explained payment was required because Oz Sheetmetal was independent, having 5 people whereas Roo Sheetmetal had 4 people. The fact that this conversation took place in the terms that it did, in the presence of Thomas, corroborates the case as put by the plaintiffs.[224] Thomas did not acknowledge the existence of this discussion. According to Thomas, he told Thuy to provide the new factory with "whatever the factory needs". It is likely both these conversations occurred, and I so find. It is clear all the Family Members, not just Thomas, were keen to see Oz Sheetmetal become a success.

399 Oz Sheetmetal commenced operations in March 2004. From the start of Oz Sheetmetal's trading, Minh worked very long hours. His regular working days were from around 6 am to 9 or 10 pm. Oz Sheetmetal required further funds for its operations. Roo Sheetmetal made 3 additional contributions: $7,370 on 18 March 2004; $30,750 on 1 April 2004; and $48,180 on 29 April 2004.[225]

400 In 2004 and 2005, Oz Sheetmetal placed some dependence upon Roo Sheetmetal for establishing its business. In addition to funds being provided, from time to time Roo Sheetmetal would also provide work to Oz Sheetmetal. When Oz Sheetmetal commenced it had 4 employees. Sometimes they would not be fully occupied. On these occasions, Minh would contact Roo Sheetmetal, usually Joseph, and seek to obtain some work for Oz Sheetmetal. Equally, on other occasions, when Roo Sheetmetal was operating at less than full capacity, Oz Sheetmetal would refer work to Roo Sheetmetal. According to Minh, this also occurred in 2007 and 2008.

401 Early on, Oz Sheetmetal also depended upon Roo Sheetmetal for plasma-cutting services. It was not until October 2004 that Oz Sheetmetal acquired its own plasma-cutting machine. According to Thuy, on a number of occasions she asked Thomas to sit down and work out how much Oz Sheetmetal owed Roo Sheetmetal and vice versa, but Thomas' response would always be that it was too hard and it could be sorted out later. Minh said he had similar discussions with Thomas. When deliveries were made by Roo Sheetmetal to Oz Sheetmetal, Minh signed delivery notes acknowledging receipt. Minh said a total of $173,000 of work done under subcontract by Oz Sheetmetal for Roo Sheetmetal was never paid for by Roo Sheetmetal.[226] This evidence was not challenged.

402 In 2004, Brown ceased to be employed as a project manager. He started a drafting business with a company, Coordinated Building Pty Ltd ("Coordinated Building"). Brown was the owner of Coordinated Building and managed its day-to-day operations.

403 Early in 2004, Thomas said to Brown that Brown should set up Coordinated Building at Roo Sheetmetal's Keysborough premises. Thomas said that that would be good for both of them. As a result of this suggestion, Coordinated Building conducted its business from March 2004 until August 2007 at the factory of Roo Sheetmetal in Cambria Road, Keysborough. The draftspersons employed by Coordinated Building, of whom there were ultimately 3, operated out of a mezzanine office in the factory of Roo Sheetmetal.

404 Shortly before or after setting up at Cambria Road, Brown met Minh at the office of Roo Sheetmetal. He was introduced to Minh by Thuy, Thomas, Son and Joseph, who each referred to Minh as their "brother". As a result of this introduction, Brown also established a relationship with Minh.

405 On 19 May 2005, each of Thomas, Thuy, Son and Joseph executed a contract of sale as purchasers. An express reference was made to each of them in the contract as purchaser "and or nominee". At the time of purchase, the land was known as lot 3, 59-87 Ordish Road, Dandenong. Subsequently, the Ordish Road property was renamed 1-5 Thomas Murrell Crescent, Dandenong. An initial deposit of $1,000 was paid by Roo Sheetmetal. The following day, a further $42,500 was paid by cheque signed by Joseph and drawn on Roo Sheetmetal's account.

406 The purchase did not go according to plan. Thuy said Thomas and Joseph handled the matter. Solicitors were retained. Thomas said he recalled lawyers were used, but beyond that he did not know anything about it.

407 When asked about this purchase, Thomas stated that he remembered "we" bought the land. Thomas later said that he used the word "we" to refer to himself, Thuy, Son and Joseph and becoming owners in the future. It is difficult to reconcile this evidence about the future ownership with the fact that each of them signed there and then as the purchasers. And Thomas' signature appears between and directly adjacent to the signatures of Joseph and Son. The signatures are all on the same line, with Thomas' being the third signature. Although it is possible, it is highly unlikely Thomas was unaware of any of the other signatures, or that anyone else had signed or would sign.

408 When confronted with the document, Thomas positively asserted that he did not read the document, that Thuy told him to sign the document and he signed it. It is difficult to accept that Thomas is able to give accurate evidence of precisely what occurred in relation to a document he said he did not read, but signed nearly 10 years before giving his evidence. When asked about whether he saw the signatures of his siblings, Thomas responded that he did not know and could not recall. He then gave evidence in general terms, by stating that when Thuy asked him to sign something he just signed it. He then made the very broad statement that he "didn't take note of anything on the paper". Thomas then appeared to give specific evidence of the signing of the document in question. In stating he could not recall signing with his other siblings, he continued: "When my sister asked me to sign, I signed it, I don't know what this is". None of this evidence can be relied upon with any confidence.

409 Initially, the property at Thomas Murrell Crescent, Dandenong, was recorded in the financial statements of the Phan United Family Trust as an asset of the trust.[227] Later, it was recorded in the accounts of Roo and Oz Sheetmetal as an asset of that company.[228] Joseph explained that, because of the legal problems, the settlement of the property did not occur until around the time that Oz Sheetmetal changed its name to Roo and Oz Sheetmetal. As the primary documents were not before the court, it is not entirely clear when or how events transpired.

410 The size of Oz Sheetmetal's business increased over time. Its business was dominated by 10 customers, who, between 2004 and 2009, represented approximately 77 percent of Oz Sheetmetal's revenue.[229] These customers included James L Williams Pty Ltd ("JL Williams").[230] By 2009, Oz Sheetmetal had approximately 18 employees.

411 In his evidence in chief, Thomas said that he decided which jobs went to which factory and that he made this decision based on factory capacity, the customer and the location of the customer's project. Whilst it is clear that Thomas did make such decisions,[231] the evidence also demonstrated that this was not exclusively Thomas' domain. Minh himself established a close relationship with customers, who placed their orders with Oz Sheetmetal without of any direct involvement of Thomas.[232] That said, Thomas usually had a direct involvement in the pricing of all work done by both Roo Sheetmetal and Oz Sheetmetal, at least until around 2006. After 2006, Francis and others also took some responsibility for pricing.[233] Also, from 2007, Thomas referred some of the design and pricing work to Thuan Phuoc. It was pricing of jobs that took up most of Thomas' time. Thomas usually worked 12 to 13 hours a week day, of which approximately 10 hours was spent dealing with pricing and speaking with customers and staff. Thomas' expertise and work concerning pricing was an important aspect of the business of each of Roo Sheetmetal and Oz Sheetmetal.[234]

412 Thomas also worked on Saturdays, usually from 7.30 am to 5.30 pm, and frequently on Sundays from 7.30 am to 4 pm. Remarkably, notwithstanding Thomas often worked more than 80 hours a week, the Reply alleged that, leading up to July 2012, Thomas spent significant periods of time "during working hours" advancing the interests of companies other than Roo and Oz Sheetmetal. There was no evidence to substantiate this allegation.

413 Thomas gave a large body of evidence in seeking to establish that customers of Oz Sheetmetal existed by reason of his efforts. A detailed analysis was done of customers of Roo and Oz Sheetmetal for the period July 2009 to June 2010. This involved reviewing all historical invoices discovered.[235] The analysis showed that of Roo and Oz Sheetmetal's 78 sheetmetal customers, 38 were originally sourced from Roo Sheetmetal and a further 6 had originally been customers of Double T Sheetmetal. Thomas also asserted that 9 customers that were first invoiced by Oz Sheetmetal were "brought" to Oz Sheetmetal by him.

414 Evidence led by Thomas does not alter the fact that Oz Sheetmetal had its own customers, and that, on the available evidence, the majority of business conducted by Oz Sheetmetal was done principally by reason of the relationship between the customers and Minh, or Minh and Joseph. Further, and in any event, given the existence of the 2003 Agreement, it must have been contemplated that Oz Sheetmetal's customer base would, at least to some extent, overlap with existing customers of Roo Sheetmetal. To the extent the defendants sought to argue a constructive trust was created in favour of Roo Sheetmetal because of Thomas' and Roo Sheetmetal's established relationship with customers of Oz Sheetmetal, on the facts as found, it has no foundation.

415 Returning to the chronology, from around 2005 or 2006, Thomas used a software package called CAMDuct, to assist him in calculating the design requirements and pricing. When finalised, the pricing details were sent either on the Roo Sheetmetal letterhead or on a combined letterhead of Roo Sheetmetal and Oz Sheetmetal. Thomas asserted that he created the joint letterhead "to show the customers that Roo [Sheetmetal] and Oz [Sheetmetal] were the same business". But this assertion is contrary to a large body of contemporaneous documents. It is also contrary to the 2002 Agreement and the 2003 Agreement.

416 Thomas went so far to say that, because it was all the same business, there was no need for Oz Sheetmetal to charge Roo Sheetmetal, or vice versa, for work 1 company did for the other. However, that is precisely what occurred. The evidence includes numerous invoices from 2004 to 2009 issued by each of Oz Sheetmetal and Roo Sheetmetal to the other company for work performed for that other company.[236] Thomas said he was not aware of the existence of these invoices or the practice of issuing them.

417 Whatever be the level of Thomas' awareness at the time, the accounting and finances of each company were, generally speaking, kept separate. A reason for the "merger" proposal in 2009 was to remove the 2 administrations based on the 2 separate operations.[237]

418 Minh also gave evidence that it was the practice of Oz Sheetmetal to pay its own outgoings. Further, with respect to property owned by PN & Nominees, each of Oz Sheetmetal and Roo Sheetmetal paid its own portion of expenses referable to the respective business operations.

419 In summary, although there was clearly some overlap between the 2 companies given their common directorships and management, and there was a degree of cooperation between the 2 companies, they in fact operated as separate legal entities. Further, there is nothing in the contemporaneous documents suggesting that Oz Sheetmetal was ever treated as a subsidiary of Roo Sheetmetal.

420 On 16 February 2007, Son executed a contract of sale for the purchase of a property located at lot 8, 163 Hammond Road, Dandenong (which later became 76-78 Rodeo Drive, Dandenong), with a purchase price of $850,000. The purchaser in the contract was recorded as "the trustee for" Thuy, Son, Thomas and Joseph. The only person who signed as purchaser was Son. For reasons that are not readily apparent, Son also executed a guarantee with respect to this purchase.[238] Thomas gave unchallenged evidence that he asked Thuy to get money from Roo Sheetmetal to pay the deposit.[239]

421 In May 2007, loan funds were obtained to complete the purchase. Upon settlement, the property was recorded as an asset of the Phan United Family Trust. Roo Sheetmetal was charged rent for the premises, initially at $7,590 per month. No formal lease agreement was entered into. On 22 November 2011, each of Thomas, Thuy, Son and Joseph (as "joint proprietors") signed a contract of sale as vendors with respect to this property. All signatures appeared on the same line, with Thomas' signature the fourth in line.[240] The purchaser was Roo and Oz Sheetmetal, and both Minh and Thuy signed on its behalf. The purchase price was $1.79 million (7/3527). Thomas gave no evidence suggesting that he did not appreciate what he was signing at the time he signed this contract of sale.

422 The Phan United Family Trust was not referred to in the contract of sale, nor was there any reference to the vendors acting as trustees. Regardless of whether or not the Phan United Family Trust was referred to, Thomas' role as joint vendor with each of Thuy, Son and Joseph is entirely inconsistent with his assertions that he believed Roo Sheetmetal owned the property and that he was the sole owner of Roo Sheetmetal.[241] It also undermines his evidence that he told Thuy to buy it "for Roo Sheetmetal". If that had been the instruction to Thuy, then it is not plausible that Thomas, without any query, would have signed a series of documents over an extended period of time which directly conflicted with this alleged instruction. Incredibly, after being shown the relevant documentation, including a subsequent transfer of land,[242] Thomas maintained the property was originally purchased by Roo Sheetmetal (not the Phan United Family Trust) and had not been transferred to Roo and Oz Sheetmetal.

423 On 6 March 2007, Roo Sheetmetal, using its own funds, purchased a property in the Parish of Nerang, Queensland ("the Nerang Property"). The fact that this occurred was admitted on the pleadings. The documents effecting this transaction were not in evidence.

424 From the end of April 2007, numerous deposits were made into the Phan United Family Trust's bank account from Roo Sheetmetal's bank account. The first of these was for $5,000 on 26 April 2007. It is not necessary to record each of the transfers individually. Leaving aside rental payments, from April 2007 until 30 October 2008, a total of $210,422 was transferred from Roo Sheetmetal to the bank account held in the name of the Phan United Family Trust.

425 In October 2007, Thomas prepared a handwritten note on Roo Sheetmetal letterhead addressed to "Debby". At the time, the banker for the Phan United Family Trust was Debbie Arnold. The note written by Thomas asked for a transfer of $7,200 to a specific account number. That account number was for the mortgage overdraft of the Phan United Family Trust with the National Australia Bank. Thomas completed the note with the words "thank you" and his signature.

426 I infer that Thomas' note was forwarded to the National Australia Bank, as, on 24 October 2007, $7,200 was credited to the Phan United Family Trust mortgage overdraft account as Thomas had directed. This transfer was recorded in a bank statement, which specifically stated that Debbie Arnold was the banker at National Australia Bank looking after this account.

427 When it was drawn to Thomas' attention that he had addressed a letter to "Debby" and that Debbie Arnold was the banker for the Phan United Family Trust, Thomas stated he did not know who Debbie Arnold was. Further, he suggested that the spelling of her name by him in his note, being different from how her name was recorded on the bank statement (which was before Thomas while he was giving evidence), meant that they could be different people. Thomas did not suggest who that other person might be. In my view, this evidence was just another example of the extent to which Thomas was willing to speculate and give unsatisfactory evidence when he perceived a document created some difficulties for his case.

428 Thomas said he had no recollection of preparing the note. When it was put to him that the document suggested he knew that the Phan United Family Trust had a bank account, Thomas denied this stating that "maybe my sister, could be ask me to do this and sign it somehow but I can't remember this one". Although I accept it is possible that Thomas could not recall a note written in 2007, his attempt to explain how it was that he wrote the note was self-serving. Further, the note supports the plaintiffs' position that Thomas knew of the Phan United Family Trust. There was no explanation proffered by the defendants as to why Thomas hand wrote a letter concerning something he asserted he knew nothing about.

429 With the growth and success of each of Roo Sheetmetal and Oz Sheetmetal, certain functions were held for customers, including Christmas parties. Tuanh attended a Christmas party held in 2007 in Sunshine North. Tuanh gave evidence that both Minh and Thuy spoke to those gathered, Minh in English and Thuy in Vietnamese. They introduced themselves as the owners of Roo Sheetmetal and Oz Sheetmetal. Thomas was in attendance, but did not speak publicly.

430 To accommodate its growth, in August 2008, Oz Sheetmetal purchased a new property at 73 Venture Drive, Sunshine West. Minh and Thuy took Thomas to this property. Thomas told Thuy the land should be purchased. A contract of sale was duly entered into. A factory was constructed on the site after it was acquired by Oz Sheetmetal. Thomas gave instructions on how the factory should be built. Minh organised the building contract. Moneys were borrowed by Oz Sheetmetal. Thomas said, at the time, he thought the property was being bought by "my business". No documents evidencing the transactions with respect to 73 Venture Drive, Sunshine West were in evidence. Notwithstanding Thomas' evidence as to his belief, there was no issue between the parties that the property was and is held by Oz Sheetmetal (now Roo and Oz Sheetmetal).[243]

431 In November 2008, the monthly rental paid by Roo Sheetmetal to the Phan United Family Trust was replaced with a monthly payment of $25,000. Thuy explained that this increased monthly payment was required so that the Phan United Family Trust could meet its loan obligations arising out of investments that had been made.

432 Tuanh said she also attended another Christmas party in 2008 at a restaurant in Springvale. It was attended by 70 to 100 people. At this party, Minh and Thomas spoke publicly, in English and Vietnamese respectively. Tuanh said Thomas introduced his brothers and sister as the owners of Oz Sheetmetal and Roo Sheetmetal. I accept this evidence, and, in so doing, reject Thomas' evidence that the Family Members were only introduced as the management team. I also necessarily reject Thomas' evidence that he did not speak publicly at the Christmas party held in Springvale. Put bluntly, Tuanh was a far more credible witness than Thomas.[244]

433 On 18 March 2009, a property was purchased on Point Nepean Road, McCrae, Victoria. The intention to purchase the property was discussed generally. Joseph said that at the time this intention was discussed amongst Thomas, Thuy, Son and himself, together with his wife and "some other people". Thomas gave evidence that he decided the property should be purchased as a holiday house to be used by the Family Members and employees. He stated to Thuy that, if the business could afford the purchase, she should go ahead and buy the property. He said he believed it was bought by "my business".

434 The parties' agreed position was that the McCrae property was bought by Oz Sheetmetal. Although the complete contract of sale was not in evidence, a document entitled "Particulars of Sale" in relation to the McCrae property had the purchaser as "[Joseph] and/or Nominee's (sic)". Joseph said he inserted his name as he initially handled the purchase. According to Joseph, the nominee purchaser was included because "we" were thinking the Phan United Family Trust would be the purchaser. In contrast, Minh said it was initially intended that Roo Sheetmetal would purchase the McCrae property.

435 Ten percent of the purchase price, namely $78,500, was due by 18 March 2009. On 9 April 2009, each of Roo Sheetmetal and Oz Sheetmetal provided cheques in the sum of $38,750 for the remainder of the deposit.[245] Thuy prepared these cheques. The evidence was unclear as to whether Roo Sheetmetal has been repaid its share of the deposit.[246]

436 Again, there is no issue that an agreement was made in 2009, though there is a vast difference between the respective parties as to what was agreed. Adapting the questions previously formulated to the circumstances that pertained in 2009, on the plaintiffs' case the following questions arise:

(1) Deciding what was said and agreed by each of Thomas, Thuy, Son and Joseph with respect to the legal and beneficial interests in the shares in Roo Sheetmetal.

(2) Deciding what was said and agreed to by each of Thomas, Minh, Thuy, Son and Joseph with respect to the legal and beneficial interests in the shares in Oz Sheetmetal.

(3) If (1) and (2) are decided in the plaintiffs' favour, whether what was said and agreed to by all manifested an intention to create a new express trust with respect to the shares in Roo Sheetmetal and Oz Sheetmetal (thereby terminating the existing express trusts[247]).

437 There was some common ground in relation to what occurred in April and May 2009. All Family Members accept there were discussions with respect to the "merger" of Roo Sheetmetal and Oz Sheetmetal. On both versions of events, it was agreed that a company should be named Roo and Oz Sheetmetal, and that this name was Thomas' idea. Further, on 16 June 2009, Oz Sheetmetal changed its name to Roo and Oz Sheetmetal. Furthermore, customers and suppliers of Roo Sheetmetal and Oz Sheetmetal were notified that a change in operations was to take effect from 1 July 2009. Thomas also accepted there was "a merger" in 2009, though his account of the merger was very different to the other Family Members' account.

438 The plaintiffs alleged a series of meetings in around April and early May 2009, at which it was agreed that there would be a "merger" of the businesses conducted by Roo Sheetmetal and Oz Sheetmetal.[248] The plaintiffs alleged each of the Family Members attended these meetings, the last of them being on 4 May 2009, and agreed that each of them would hold an equal share in "the merged business".[249]

439 It was further alleged by the plaintiffs that the Family Members agreed to give effect to the "merger" by taking the following steps:[250]

(1) Additional shares would be issued in Roo Sheetmetal, so that Thomas, Thuy, Son and Joseph would each hold 25 shares in Roo Sheetmetal.

(2) Additional shares would be issued in Oz Sheetmetal, so that Minh would hold 40 shares, and Thomas, Thuy, Son and Joseph would each hold 15 shares in Oz Sheetmetal.

(3) The shareholders in Roo Sheetmetal would then transfer all their shares to Oz Sheetmetal, so that Roo Sheetmetal became wholly owned by Oz Sheetmetal.

(4) After taking into account "the relative valuations" of Roo Sheetmetal and Oz Sheetmetal, the previous shareholders of Roo Sheetmetal would then be issued shares in Oz Sheetmetal, with the end result that each of the Family Members would own an equal 20 percent share in Oz Sheetmetal, which in turn would wholly own Roo Sheetmetal.

(5) Each of Roo Sheetmetal and Oz Sheetmetal would thereafter make equal cash contributions to the "merged business" from time to time, for the purpose of ensuring sufficient funds were available for the "merged business" to carry on its business.

440 The plaintiffs further contended that because none of the steps referred to in paragraph 439(1) to (4) above have ever occurred, the legal owners of the shares in Roo Sheetmetal, namely Thomas, and Oz Sheetmetal, namely Minh and Thuy, have from 4 May 2009 held those shares on trust. More particularly, the plaintiffs alleged Thomas held the shares in Roo Sheetmetal on trust for Oz Sheetmetal; and Minh and Thuy held the shares in Oz Sheetmetal on trust for the Family Members equally.

441 Importantly, the plaintiffs only put this case on 1 basis, namely, that an express trust was created by what was alleged to have been agreed. No alternative case was put. Further, the case based upon an alleged trust specifically incorporated that each of the matters set out in paragraph 439(1) to (5) formed part of the agreement by which the intention to create a further trust manifested.

442 The evidence given by Thomas of events in April and May 2009 bore no resemblance to the evidence given by the plaintiffs. Thomas said he only discussed a merger with Thuy. He denied ever attending any meeting concerning how the new arrangements were to be put in place. The plaintiffs alleged a meeting attended by the Family Members and Tuanh at which the 2009 Agreement was reached. In response to evidence led by the plaintiffs as to when a meeting occurred at which the proposal to "merge" was agreed, namely, 4 May 2009, Thomas gave evidence as to why he could not have attended a meeting on the evening of 4 May 2009.[251]

443 In furtherance of Thomas' position that he was not at any meeting at which the 2009 Agreement was discussed, he stated that when, in 2013, he was shown an email sent by Tuanh on 5 May 2009,[252] he asked who Tuanh was. After being told Tuanh was a lawyer, Thomas said he viewed the Baker & McKenzie website and looked at her photograph. He said that when he saw that photograph she was "vaguely familiar", but he was unsure whether he had ever been introduced to her. He said he thought he may have seen her at business Christmas parties prior to 2012.[253] I accept Thomas' evidence that he did not know Tuanh well.[254] Consistent with Thomas' evidence, Tina also said she did not know Tuanh. She did not think she had ever seen Tuanh before. However, it does not follow that Tuanh was not at a meeting attended by Thomas in late April or early May 2009.

L.4 No express trusts created by the events in April and May 2009

444 Speaking very broadly, and subject to some important qualifications, I have accepted the account of the plaintiffs as to what occurred in April and early May 2009. However, the product of the discussions in April and early May 2009 amounted to no more than general proposals about what was intended, which intentions were largely conditional on further steps and future decisions. These proposals were never the subject of any final agreement, non-binding or otherwise.

445 Thomas denied he attended any of the 3 meetings alleged. Of the 3 alleged meetings, it was the third meeting that is the critical meeting. It is not suggested by the plaintiffs that at the first 2 meetings any concluded agreement was reached. Accordingly, I will deal with the details of the first 2 meetings briefly.

446 In denying the first meeting occurred, Thomas said Minh never visited the Dandenong factory at all in the first half of 2009. All of the other Family Members gave evidence of Minh's presence at the Dandenong factory in April 2009. I do not accept all of them were fabricating their evidence in this regard.

447 At the first meeting in Dandenong, either Minh or Thuy stated that the 2 companies should merge. It seems the genesis of this idea was the fact that a customer of both Roo Sheetmetal and Oz Sheetmetal, JL Williams, was planning to close its manufacturing arm and to enter into an exclusive supply agreement with an existing sheetmetal manufacturer. Minh was concerned that both Roo Sheetmetal and Oz Sheetmetal have the benefit of any such contract.

448 Essentially, Minh appeared to be concerned that Oz Sheetmetal might miss out altogether on the opportunity being presented by JL Williams. Minh raised his concerns with Thuy, who then discussed the matter with Son, Joseph and Thomas.

449 There were discussions held with representatives of JL Williams. These discussions commenced in late 2008 or early 2009 (5/2892). Significantly, these discussions were attended not only by Thomas, but also the other Family Members. Thomas acknowledged attending a meeting at which Thuy, Son and Joseph also attended on behalf of Roo Sheetmetal. However, he denied they attended as owners. Thomas also denied attending a meeting with Minh.[255] It is apparent from contemporaneous correspondence that Minh was also directly involved in some of these discussions.[256] Further, the then state manager for JL Williams, Phillip Cannan ("Cannan"), gave evidence of meetings with Oz Sheetmetal from late 2008 concerning the possible supply agreement. Cannan said the second meeting he attended in South Dandenong was attended by Thomas, Joseph and Minh. According to Cannan, both Thomas and Minh spoke to those in attendance. This evidence was unchallenged. The first meeting had been with Minh in Sunshine North. At the end of that meeting, Minh told Cannan he was interested in JL Williams' proposal, but that he would "need to speak to other people in the business first".

450 Returning to the first meeting between the Family Members which was in Dandenong, according to Thuy, Minh suggested that the new business should be called "Ozzie Roo". Thomas rebutted this suggestion stating that the new company or business should be called "Roo and Oz", as Roo Sheetmetal had come before Oz Sheetmetal.[257] There was no discussion at this first meeting as to precisely how the merger was to occur. Thuy said she talked with her siblings about the issue, and "they agreed and then we had the meeting in Dandenong". Such an assertion does not amount to evidence of any agreement being struck.

451 The second meeting, at the home of the Parents in Maidstone, did not appear to take the matter much further. As was stated by Thuy, nothing was discussed at that meeting that had not been discussed before.

452 The critical meeting was the third meeting ("the Proposed Merger Meeting"), which the plaintiffs contend was held at Minh's house in Maribyrnong on 4 May 2009 at around 7.30 pm. Whether or not the meeting was held on precisely that day is of no real moment. The critical issue is whether, in late April or early May 2009, the Proposed Merger Meeting actually took place with Thomas in attendance. I accept the evidence of Minh, Thuy, Son and Joseph that such a meeting did occur. Their evidence was corroborated by Minh's niece, Tuanh. As already noted,[258] Tuanh was an impressive witness. Tuanh gave very detailed evidence of the relevant events, including Thomas' presence at the meeting.

453 Tuanh's direct evidence of a meeting in early May 2009 at which Thomas attended was convincing. This was the only meeting she attended with the others, and she had a very good recollection of it. The fact that Thomas said he could not recall such a meeting did not persuade me that it did not occur. On the contrary, the evidence satisfied me that such a meeting did occur.

454 The timing of the meeting as being on the evening of 4 May 2009 was given by Tuanh in reliance upon a diary entry of the same date and time. Her diary page was a document Tuanh found only shortly before she gave her evidence. The entry simply reads "Cau", meaning uncle. It made no reference to a meeting. Tuanh acknowledged that without reference to the diary entry, she could not be certain about the date.

455 Further, although it appears that Thomas was in a hardware store in Dandenong at 7.24 pm on 4 May 2009 purchasing timber[259] (which would make it impossible for Thomas to be in Maribyrnong at Minh's house at 7.30 pm on that day), this does not mean that the Proposed Merger Meeting never occurred or that Thomas was not in attendance (T1667). To the extent that the plaintiffs' asserted timing of the Proposed Merger Meeting and Thomas' evidence of his whereabouts are irreconcilable, it is unnecessary for me to make findings, as invited to by the plaintiffs, that Thomas was fabricating his evidence concerning his location on the evening of 4 May 2009.[260] It may be that Tuanh was mistaken about the evening upon which it occurred. Minh and Joseph[261] said they thought the Proposed Merger Meeting was in late April 2009. Thuy said she thought it was held towards the end of the week, and thought it was on the weekend (4 May 2009 was a Monday).

456 It is important to record Tuanh's evidence of what was said at the Proposed Merger Meeting. In significant respects, that evidence discloses conduct of Thomas which strongly corroborates the plaintiffs' case concerning the existence of the 2002 Agreement and the 2003 Agreement. That said, the evidence also undermines the plaintiffs' case in significant respects concerning the 2009 Agreement.

457 Tuanh's memory of the Proposed Merger Meeting was sufficiently clear that she could recall where each of the participants was sitting at Minh's kitchen table. The meeting was conducted in Vietnamese. As to the duration of the meeting, it probably lasted around 2 hours.[262]

458 Minh spoke first at the meeting. In the presence of the others, Minh told Tuanh about the structure of Roo Sheetmetal and Oz Sheetmetal. Minh said that Oz Sheetmetal had 5 shareholders, himself as to 40 percent and each of Thuy, Son, Thomas and Joseph as to 15 percent. He then said that in relation to Roo Sheetmetal there were 4 shareholders, being Thomas, Son, Thuy and Joseph and that each held 25 percent.

459 Having given this introduction, Minh said that if you took 25 percent in Roo Sheetmetal and 15 percent in Oz Sheetmetal that would make 40 percent, so that 40 percent reflected an equal holding by the Family Members in the combined 2 companies. Although Tuanh agreed in cross-examination that, as a lawyer, this did not strike her as logical, she did not say anything at the time.

460 Thuy spoke next. She said the paperwork did not reflect the shareholdings that Minh had spoken about. She said on paper Thomas owned 100 percent of Roo Sheetmetal, and Minh and she held 50 percent each in Oz Sheetmetal. Tuanh thought this was unusual and asked why it had occurred. Minh responded by stating that that was the way the companies had been established and no one had ever bothered with the paperwork as they trusted each other.

461 Minh then said to Tuanh that he had asked her to attend the meeting because the Family Members wanted to merge the 2 companies. Minh said they wanted to set up a new company and combine the 2 companies. In this context, Minh said they wanted to bring the 2 businesses together because Roo Sheetmetal and Oz Sheetmetal were now of a similar size, and a merger would make the administration of the 2 companies easier. Minh further stated there was an opportunity with JL Williams because "they were closing their manufacturing operations down and they had approached the business to see if we wanted to take over their manufacturing operations and supply them with products". While Minh was stating these things, Tuanh observed that the others at the table appeared to be listening. No one expressed disagreement.

462 Having explained all this, Minh asked Tuanh how they could do what they intended. In response, Tuanh said there were a couple of ways that they could give effect what they were looking to achieve. (Under cross-examination, Tuanh accepted there were in fact many methods available.) Tuanh only mentioned 2 different ways because she was seeking to make the merger options simple.

463 Tuanh stated the first option available was to transfer the shares in each of the 2 companies to a new holding company. She stated this would involve setting up a new company, and that the shareholders in that new company would be the Family Members. She said this was a relatively simple method because there would not be any need to transfer the individual assets of the companies. She also suggested that it was likely that stamp duty would not be payable on the transfer of shares. Tuanh said that the disadvantage of setting up a holding company was that then there would be 3 companies to maintain going forward.

464 She suggested a transfer of assets as a second option. Tuanh stated that 1 company could transfer its individual assets to the other company and then they could operate out of the company with the assets. Tuanh stated this was a little fiddlier because they would need to transfer the individual assets, as well as employees, and there might be stamp duty associated with some of the transfers. She said the advantage was that in the end there would only be 1 company that would need to be maintained, so that it would be easier on an ongoing basis.

465 Tuanh observed Minh taking notes at this point of the meeting. She said he was drawing diagrams. In fact, Minh took 4 pages of notes during the meeting. Page 1 of those notes suggested Roo Sheetmetal had a value of $6 million and Oz Sheetmetal had a value of $5 million. In evidence, Minh said these figures were merely hypothetical. He said it was just an example of a number to explain the situation, but no valuations had been obtained and that he did not know which company had a higher valuation. Although the diagrams are not entirely clear, they appear to depict Roo Sheetmetal having 4 owners at "25%" and Oz Sheetmetal having 5 owners at "400k, 15k, 15k, 15k, 15k". Minh said "k" represented "percent". This seems hard to reconcile with the fact that Minh referred to "400k" rather than '40k"; that he had 3 references on the same page to "500k"; and that he also referred to each of the shareholdings in Roo Sheetmetal on that page as "25%".[263]

466 Page 2 of the notes had diagrams which are even less clear, with words on the page, including "transfer share", "no stamp", "CGT" (presumably a reference to capital gains tax, but Minh said it might have been a reference to "GST", but he could not recall), "issue a new share", "nominal consideration", "tax involve?", "how much". Minh said he took these notes while Tuanh was advising them.

467 The third page again showed Oz Sheetmetal being owned "40%, 15%, 15%, 15%, 15%" and next to these numbers was the word "present". Underneath that there was a depiction suggesting 20 percent ownership for 5, with the company being referred to as "Oz & Roo", but with arrows that seemed to suggest these 2 words were to be interchanged.[264]

468 The final page contained a more complicated diagram, which included "RooOz Oz" in a box with "Roo" in a box below it. There were 2 arrows between these 2 boxes, 1 in either direction. The words on the page included "old", "new", "contract" (twice), "bank"[265] and "accountant".

469 Although these notes of Minh are far from clear, they are largely consistent with the evidence given by Tuanh as to what occurred at the Proposed Merger Meeting. Further, Son gave evidence of seeing the notes at the time, and also witnessing Thomas looking at the diagrams that had been drawn. In particular, Son recalled Thomas referring to the notes when asking Son if he fully understood.

470 Returning to the discussion, in response to Tuanh's second option, Minh said that there were more properties held by Oz Sheetmetal than Roo Sheetmetal, therefore it made sense to have the assets of Roo Sheetmetal transferred to Oz Sheetmetal to save on stamp duty costs. Although she could not be certain whether it was Joseph or Thomas from the other side of the table, 1 of them asked why not leave the land with Roo Sheetmetal and transfer the shares in Roo Sheetmetal to Oz Sheetmetal, so that there would be no transfer of land into Oz Sheetmetal and therefore there would be a saving on stamp duty costs. (There was no suggestion any legal advice was given as to what effect this approach would have on any stamp duty payable.)

471 Although Tuanh could not be specific, she recalled at some stage it was mentioned that land was owned by the Phan United Family Trust. This mention was reflected in her later email.[266] She also recalled that there was discussion about the possibility of winding up Roo Sheetmetal. She said this occurred before the suggestion was made about leaving the land in Roo Sheetmetal.

472 Tuanh's evidence was that Minh stated that he preferred option 2. He then turned to the others at the meeting and asked them what they thought. Each other Family Member at the table said that option 2 was okay. Tuanh had a specific recollection of Thomas stating that option 2 sounded fine and was acceptable.

473 According to Minh, at some stage the subcontracting that had been done by Roo Sheetmetal and Oz Sheetmetal for each other was raised. Upon the issue of how debts were to be dealt with between the companies, Thomas is alleged to have said: "it's too hard to calculate now, why don't we make it a mutual forgiven (sic) for Roo and Oz Sheetmetal". It is unclear whether these words were spoken. In any event, their meaning is not entirely clear.[267]

474 Thuy then said that the family wanted to start operating the combined business from 1 July 2009.[268] Tuanh said that there was a number of things that would need to be done to give effect to the merger. She said, first and foremost, they would need to fix up the shareholding structure so that the legal interests in the 2 companies reflected the beneficial interests that Tuanh had been told about. Tuanh also stated that it would be necessary to get tax advice to ensure that what was proposed was a tax effective structure.

475 In her evidence, Tuanh said she did not know the detail of the land holdings and that she made it very clear that what she was proposing was subject to the need to get tax advice. In addition, Tuanh stated it was necessary to obtain valuations of each of the 2 companies in order to effect the restructure and the transfer of the assets.

476 Tuanh next said that she would prepare some diagrams or a "step plan" to clarify how the steps would be taken.

477 Although she did not recall such a discussion when giving her evidence in chief, upon the issue being raised in cross-examination, Tuanh also said she discussed the issue of liabilities. In substance, she stated that under option 2 the assets and liabilities would be transferred from Roo Sheetmetal to Oz Sheetmetal.

478 During cross-examination, the various versions given by the witnesses called on behalf of the plaintiffs were put to Tuanh. She disagreed with a number of those accounts. The fact that there were differences in recollection of what occurred at the meeting, again, is not surprising given the lapse of time. However, those different accounts did not, in my view, undermine Tuanh's reliability.

479 According to Minh, Tuanh did not attend in her capacity as a solicitor to give legal advice, but rather she attended "as a niece and she advised me because of her knowledge". In 2009, no legal file was ever opened by Tuanh in relation to the proposed merger. Notwithstanding these facts, Tuanh was attentive. She made scribbles or notes during the meeting.[269] Further, she was quite focused at the meeting because she had assumed some responsibility for putting together a proposed structure based on what she was being told. As I have already stated, she had a good recollection and her evidence was not shaken during cross-examination.

480 As a result of the meeting, Tuanh, with the benefit of her notes, prepared an email which she sent to Minh on 5 May 2009 ("the Proposed Merger Email"). The Proposed Merger Email was not copied into any other person; it read:

Attached is (sic) the proposed steps in relation to restructure of Oz Sheetmetal and Roo Sheetmetal as we discussed yesterday. I have also included a few notes at the end for you to consider.

(Emphasis added.)

The attachment contained a series of diagrams. Although the email referred to discussions the previous day, this was not clear evidence that the Proposed Merger Meeting took place on 4 May 2009 as Minh and Tuanh also had other discussions around the same time.

481 The first diagram attached to the email was headed "Ownership structure of [Oz Sheetmetal] and [Roo Sheetmetal] prior to implementation". Beneath that heading were 2 diagrams: 1 demonstrating that Minh and Thuy held 1 share each in Oz Sheetmetal; and the other that Thomas held 2 shares in Roo Sheetmetal.

482 The next diagram was headed "STEP 1: [Roo Sheetmetal] issues new shares to current and new shareholders". Underneath this heading there were 2 diagrams. The position of Oz Sheetmetal remained unchanged. In contrast, the diagram from Roo Sheetmetal showed 23 shares being issued to Thomas "for nominal consideration", 25 shares being issued to Thuy and 25 shares being issued to each of "Shareholder 1" and "Shareholder 2". Tuanh said these last 2 references were references to Son and Joseph, but that she did not know their full names at the time and so did not specify them (T1741.07). In her evidence, Tuanh explained this issuing of shares was a necessary step in order to have the legal interests in Roo Sheetmetal reflect the beneficial interests as those interests had been reported to her.

483 The next page was headed "STEP 2: [Oz Sheetmetal] issues new shares to current and new shareholders". This sheet contained 2 diagrams, the diagram of Roo Sheetmetal showing 4 shareholders with 25 shares each. For Oz Sheetmetal, the diagram illustrated 39 shares being issued to Minh (making a total of 40), 14 shares being issued to Thuy (making a total of 15) and 15 shares being issued to each of Thomas, "Shareholder 1" and "Shareholder 2". Again, the shares were said to be issued "for nominal consideration".

484 The next page was headed "STEP 3: Shareholders of [Roo Sheetmetal] transfer their shares in Roo [Sheetmetal] to [Oz Sheetmetal] in exchange for shares in [Oz Sheetmetal]". The diagram below this heading showed a transfer of shares by Roo Sheetmetal shareholders to Oz Sheetmetal. Underneath the diagram was a note which read as follows:

Note: Number of Oz Sheetmetal shares to be issued to Roo [Sheetmetal] shareholders will be dependent on the value of Oz Sheetmetal and Roo Sheetmetal.

(Emphasis added.)

Consistent with this note, the diagram did not suggest how many shares ought to be transferred.

485 The next page was also headed up "STEP 3", but then read as follows: "Share buy-back of excess shares in consideration for promissory note from Oz Sheetmetal to the amount of the excess [this will depend on the valuation of Roo [Sheetmetal] and Oz [Sheetmetal]]". The diagram below this heading showed Oz Sheetmetal holding 100 shares in Roo Sheetmetal, with the shareholders of Oz Sheetmetal being Minh, with 40 shares in Oz Sheetmetal only, and each of Thuy, Thomas, "New Shareholder 1" and "New Shareholder 2" holding "15 shares + Roo shares". Under cross-examination, it was put to Tuanh that the buy-back of shares would have been unnecessary if the valuations of Roo Sheetmetal and Oz Sheetmetal had already been done. Her response demonstrated the fluidity and lack of certainty that existed at the time as to how any restructure might eventuate. In rejecting the general proposition put to her, she answered "not necessarily". She then volunteered that the next steps could have been structured in a variety of ways. There was no suggestion any of this was the subject of any agreement.

486 Tuanh then agreed with what was put to her, namely that, if Roo Sheetmetal were considerably more valuable than Oz Sheetmetal, then the more prudent approach for a Roo Sheetmetal shareholder would have been to obtain more money or receive more shares in Oz Sheetmetal. She acknowledged she had no idea as to whether the value of the companies was equal. She also accepted that, to give effect to the restructure as she had formulated it, a valuation of Roo Sheetmetal would have been necessary to be carried out as soon as possible. Tuanh also recalled advising Minh that an extra amount might have been payable to shareholders of Roo Sheetmetal, depending on which company was more valuable.[270]

487 The final diagram was headed "Diagram: ownership structure of Oz Sheetmetal and [Roo Sheetmetal] following implementation". The diagram beneath this heading again showed Oz Sheetmetal holding 100 shares in Roo Sheetmetal. As to the ownership of Oz Sheetmetal, each of Minh, Thuy, Thomas, "New Shareholder 1" and "New Shareholder 2" was depicted as holding 20 percent of the shares.

488 The final page of the Proposed Merger Email read as follows:

• may purchase the land currently owned by the Phan family trust[271]
• will need to repay to the relevant shareholder any amount required to be paid under the promissory note
• employees of Roo Sheetmetal will effectively be transferred to Oz Sheetmetal
• shareholders may change the name of Oz Sheetmetal and Roo Sheetmetal as desired
• land will continue to be held by current owners ie no transfer of land
• may need to adjust purchase price this will need to be reflected in the sale agreement
• will need a shareholder agreement amongst the shareholders to govern management and control issues we will need to discuss
• will need constitution for Oz Sheetmetal
• your accountant should be able to consolidate Oz Sheetmetal and Roo Sheetmetal financial results going forward
• need to consider whether merged entity needs to lodge financial statements with ASIC will depend on size of company following restructure.

Tuanh explained in her evidence that the steps set out above were "things that would need to be considered or done" after the steps in the previous pages had been taken.

489 It is important to emphasise that the plaintiffs' case was that the contents of the Proposed Merger Email accurately reflected what had been decided at the Proposed Merger Meeting. There was no suggestion that Tuanh had stated anything inaccurately or that there was any divergence between what she thought was necessary to implement the arrangement and what the Family Members had intended. The contrary is the position.[272] The contents of the Proposed Merger Email and the circumstances in which it was sent, weigh heavily against the plaintiffs' case. There are a number of reasons for this.

490 First, Tuanh frankly accepted that the contents of the Proposed Merger Email were "very much hypothetical". Having had the benefit of the discussions that occurred prior to the diagrams being prepared,[273] it is clear from the Proposed Merger Email that Tuanh was doing no more than outlining a possible means by which any adjustment to the ownership in Roo Sheetmetal and Oz Sheetmetal might have taken place. The hypothetical scenario would need to be properly understood and agreed to by each of the interested persons before the document might be said to encapsulate any agreement, enforceable or otherwise. This position pertains not only to the creation of any new arrangement, but also to any termination of the existing trusts in place.

491 Secondly, the wording of the Proposed Merger Email demonstrates that some of the contents had not been properly considered. It would appear that Tuanh added "a few notes" based on her own experience as a lawyer, together with the understanding of the situation, for further consideration. Whilst not unequivocal of the absence of a pre-existing agreement, the language does not naturally suggest an agreement had been entered into. This is not surprising given Tuanh's understanding of the situation.

492 Thirdly, step 1 contemplated the issue of further shares in Roo Sheetmetal. When Minh was taken to this during cross-examination, he first stated that the issue of 23 new shares had been discussed with Thomas at the Proposed Merger Meeting before this document was prepared. Almost immediately after, Minh changed his evidence to state that it had not been discussed with Thomas. Minh then said that there was a discussion with Thomas about issuing shares to "the 4 of the members of Roo Sheetmetal". Minh then acknowledged that he knew that the only person who could sign documents to issue new shares in Roo Sheetmetal was Thomas.

493 In summary on this issue, there was no discussion with Thomas about how many shares were to be issued in Roo Sheetmetal. Further, there was never any request of Thomas for him to issue any such shares either in or about April or May 2009, or at any time later.

494 Fourthly, I am not satisfied that any of Thuy, Son or Joseph understood the contents of the Proposed Merger Email. Accordingly, in substance, they could not have agreed to its contents. For example, Thuy did not know what a promissory note was. Further, I am not satisfied that it is even remotely possible Thuy could have shown this document to each of Thomas, Son and Joseph for all of them to look at, and then that each of them could have properly understood it. The fact that the document is almost entirely in English,[274] makes it highly unlikely that the contents of the document were read and understood by Son or Joseph.[275] Further, some of the words used were more readily characterised as legalistic rather than lay language. I simply do not accept any assent was given by Thomas, or, for that matter, any of Thuy, Son or Joseph, based on reviewing, understanding and agreeing to the contents of the Proposed Merger Email.[276]

495 Fifthly, step 2 also involved the issue of shares in Oz Sheetmetal.[277] There was no suggestion that the issue of 39 shares to Minh, 14 to Thuy and 15 to each of Thomas, Son and Joseph had previously been discussed at all.

496 Sixthly, the first part of step 3 contemplated a transfer by Roo Sheetmetal shareholders of all of the shares in Roo Sheetmetal to Oz Sheetmetal. The note on this diagram made it plain that the number of shares to be issued in Oz Sheetmetal to Roo Sheetmetal's "shareholders" would be dependent on the value of Oz Sheetmetal and Roo Sheetmetal. This diagram clearly contemplated that the "shareholders" of Roo Sheetmetal were to be given full value for their proportion of Roo Sheetmetal, and that the shareholdings in each of the companies were not treated to be of equal value.

497 There was no suggestion that a share transfer was ever prepared for these purposes. Further, there was never any discussion about how Roo Sheetmetal might be valued. Self-evidently, the means and mode of valuation of Roo Sheetmetal is a matter for commercial negotiation. The basis and components of any valuation of a company can vary extensively. Tuanh acknowledged that for the proposal to be implemented, valuation was a necessary step. Tuanh stated it was necessary to have the valuation of both Roo Sheetmetal and Oz Sheetmetal so that if the values were different, then the contribution made by a shareholder of her or his shares to the other company would need to be paid back to them so as to ensure that, at the end, the shareholders would have an equal shareholding. Tuanh said that if it were otherwise then, without some equalising mechanism, certain shareholders would bring more value to the combined company. None of how this was to occur had been agreed.

498 Seventhly, the proposal as put forward by Tuanh involved a promissory note. Not only is there serious doubt about whether most of those involved understood of what such a document consisted,[278] the terms of such a note were not agreed.

499 Eighthly, the proposal anticipated that a sale agreement was required. Tuanh gave advice at the Proposed Merger Meeting about the need for a sale agreement. According to Minh, Tuanh advised that it was necessary to purchase Roo Sheetmetal as a whole company, but he could not remember the specifics of the advice. Tuanh stated she never followed up, after 5 May 2009, as to what form this sale agreement should take. She said she mentioned the sale agreement subsequently and simply asked Minh as to why they had not taken the steps at the time that they implemented the change of name of Oz Sheetmetal to Roo and Oz Sheetmetal. No meaningful response was ever given to Tuanh.

500 Ninthly, a similar position to the sale agreement pertained to the proposed shareholder agreement. Despite the fact that the Proposed Merger Email expressly stated that there was a need to discuss this agreement, save for the discussion referred to in the previous paragraph, Tuanh did not discuss it with Minh or anyone else after 5 May 2009. Tuanh also acknowledged during cross-examination that it was her experience that, once shareholders saw the terms of a shareholders agreement "in black and white", agreement between the shareholders did not always follow.

501 In addition to the matters identified above, it is of particular significance that many of the steps that were necessary to be implemented were not implemented at all. Not only was there never any request from Thomas to transfer the shares in Roo Sheetmetal or to authorise the allotment or issue of new shares, there was never any attempt by Minh, Thuy or anyone else to put in place the necessary documentation to properly give effect to any proposed agreement. Even on a practical level, there were no steps taken to consolidate the financial results of Oz Sheetmetal and Roo Sheetmetal, despite it being expressly contemplated in the Proposed Merger Email.

502 Although some steps were taken, such as the change of name to Roo and Oz Sheetmetal[279] and the transfer of employees from Roo Sheetmetal to Roo and Oz Sheetmetal, there were integral and fundamental aspects of the alleged agreement that were never actually agreed, much less even attempted to be put in place.

503 The plaintiffs also relied upon investments made after May 2009 as evidence of Family Members having concluded an agreement in accordance with the 2009 Agreement. This included the giving of guarantees by each of the Family Members with respect to significant borrowings. However, such conduct is entirely consistent with what the Family Members were doing before the events in April and May 2009, and with the pre-existing relationships established by reason of the PN Unit Trust and the Phan United Family Trust.

504 A possible exception to what is stated in the previous paragraph is the sale of 76-78 Rodeo Drive, Dandenong. By a contract of sale executed on 22 November 2011 by Thomas, Thuy, Son and Joseph (see paragraph 421 above) and a transfer of land executed by Thomas, Thuy, Son and Joseph "as joint proprietors" on or about 20 February 2012, the property at 76-78 Rodeo Drive, Dandenong was transferred from Thomas, Thuy, Son and Joseph (as trustees of the Phan United F[280]ly Trust)280 to Roo and Oz Sheetmetal for the sum of $1.79&#[281]million.281 When taken to the transfer of land under cross-examination, Thomas first stated that he did not "know this" document. He then said it was sent to him by his lawyer in 2013. Thomas acknowledged having signed the document but also said he did not know for what he was signing. Finally, Thomas said he saw the document but could not remember what he was signing. Thomas made no suggestion that Thuy had asked him to sign the transfer. Thomas' signature was witnessed by a bank officer.

505 No other witness gave any evidence about this transfer. In these circumstances, it is inappropriate to infer that the transfer occurred by reason of the existence of any agreement consistent with the 2009 Agreement.[282] Even if such an inference were open, any Family Members who acted as if the 2009 Agreement were on foot were entirely mistaken.

506 Tuanh accepted under cross-examination that, to her knowledge, the hypothetical steps she outlined in the Proposed Merger Email were never given effect to. She said she believed Oz Sheetmetal would become the operating company for the entire business, but only "after all these steps had been taken".

507 Initially, Minh seemed to be in denial about the fact that the steps as contemplated had not been taken. When it was put to him that the others never became directors and shareholders of Roo and Oz Sheetmetal, Minh said it "happened in terms of the factual but not happened with the paper". He accepted that he could have caused the paperwork to be done, but the fact that it had not been done was "our mistake and we wear the consequences". Naturally, for the steps to be implemented, more than mere "paperwork" was required. Later in his evidence, Minh acknowledged that the merger still had not occurred, although he continued to assert Roo and Oz Sheetmetal was "the combination" of Roo Sheetmetal and Oz Sheetmetal.

508 The plaintiffs' pleaded case does not rely upon the Proposed Merger Email as forming part of, or being a particular of, the 2009 Agreement. On the contrary, the Statement of Claim alleges that the 2009 Agreement existed "since 4 May 2009". However, the plaintiffs seek to rely upon the Proposed Merger Email as an admission against interest made by Thomas; namely, that the Proposed Merger Email recorded the terms of the 2009 Agreement and that Thomas acknowledged and accepted its contents. There are problems with this as well.

509 First, I have serious doubts about whether in fact Thomas was shown the Proposed Merger Email. The evidence given by Thuy was extremely vague as to what was discussed at the meeting she alleged occurred at the Dandenong factory after 5 May 2009. Thuy said that Minh copied the diagrams attached to the Proposed Merger Email and that she took them to Dandenong soon after. She said she showed the diagrams to Thomas, Son and Joseph together and they "looked at the document together". When asked by her senior counsel if Thomas said anything, Thuy responded: "He was very happy". She said Thomas said, "Okay". Under cross-examination, Thuy acknowledged she did not explain the document. She suggested an explanation was unnecessary because "[t]his issue had already been explained" and also asserted that "[e]veryone knew about it". Later she said, she already understood the structure, so when the Proposed Merger Email was created the position could only become clearer. Of course, many aspects of the Proposed Merger Email were far from clear as to precisely how any merger might actually be effected.

510 Joseph's evidence of this meeting was also very vague. He said he could not recall whether he was shown the Proposed Merger Email at the Dandenong factory or at Minh's house. He could not recall whether or not Minh was there. Further, he stated that Thuy described the Proposed Merger Email as "the draft" from Tuanh. Beyond that, he had no recollection of Thuy saying anything further. According to Joseph, he, Son and Thomas all said that they understood the structure. Thuy gave no evidence of any such understanding being expressly stated.

511 Inconsistent with Thuy and Joseph's account, Son said he was shown the Proposed Merger Email a few weeks after the Proposed Merger Meeting. Also in contrast to the earlier evidence, Son said Thuy and Thomas gave explanations of the Proposed Merger Email. Son then went so far as to say "all the siblings, everyone" gave him an explanation. Son said Thuy explained by stating that the pages contained drawings of the structure of the "new company" and that each sibling would have 20 percent. (Of course, there was no new company represented in the diagrams.) Son said in response to this explanation, everyone said "yes" or "okay" and "we were all very happy". In my view, Son's evidence on this issue was not credible.[283] I do not accept that each of Thomas, Thuy and Joseph explained the Proposed Merger Email to Son. No other witness suggested this occurred at the alleged meeting.

512 Regardless of whether there was a meeting at which the Proposed Merger Email was discussed, there was no evidence of what anyone said by way of any explanation. Putting aside Thuy's evidence that there was no explanation, most of the remaining evidence was that an explanation or explanations were given, without any reference to what was actually said. (The minor exception to this last point is Son's account of Thuy erroneously referring to a "new company", and her statement that each Family Member would have 20 percent. Such evidence falls well short of a proper explanation of what was proposed.)

513 Presumably, if an explanation was given, in early May 2009 at the Dandenong factory, that explanation reflected what had been discussed at Minh's house, including Tuanh's advice. In substance, any explanation consistent with what had been previously stated, and what was reflected in the Proposed Merger Email, could not have been to the effect that there were all the proposed steps in place to give rise to a concluded agreement, pursuant to which the ownership (legal or beneficial) in Roo Sheetmetal and Oz Sheetmetal had already been changed or would necessarily change in the near future. This was plainly contrary to the facts.

514 Further, it seems likely Thuy, Joseph and Son made no mention of any such meeting when they gave instructions for the purpose of the original statement of claim being prepared.[284] There can be little doubt that it would have formed part of the particulars of the alleged agreement if Thomas did in fact review the Proposed Merger Email and then positively state his assent to its contents.[285]

515 Secondly, in summary, the evidence of Thuy amounted to no more than, in substance, that Thomas looked at the Proposed Merger Email, including the diagrams, and said that he was happy or okay. That does not indicate that Thomas acceded to a concluded agreement in the terms alleged by the plaintiffs, binding or otherwise. The document itself shows that there were many things yet to be agreed.

516 Thirdly, the contents of the Proposed Merger Email themselves do not provide any direct evidence that Thomas entered into an agreement in the terms alleged to comprise the 2009 Agreement.

517 The evidence clearly indicates that, if Minh and Thuy wanted to take the further steps to put an agreement in place, subject to the agreement of Thomas, Joseph and Son to the steps chosen, they could have done so. In fact, it was quite convenient for Minh and Thuy not to take the required steps. By taking what might loosely be referred to as the administrative steps relating to the transferring of Roo Sheetmetal's business to Oz Sheetmetal, but failing to take any of the necessary steps concerning ownership, Minh and Thuy were putting nearly all of the value and ongoing goodwill of the business ostensibly under the control of Oz Sheetmetal, a company of which they were the only registered directors and shareholders.

518 The only reasonable inference open on the evidence is that Minh and Thuy made a conscious and deliberate decision not to take the required steps to arrive at a concluded agreement.[286] They made this decision with full knowledge that they were failing to comply with what had been discussed in late April or early May 2009. I find this to be the case for at least the following reasons:

(1) Tuanh specifically told Minh both during and after the Proposed Merger Meeting that there was "a need" to obtain valuations to enable the restructure to be effected, and Minh did not act on that advice.

(2) Minh responded to Tuanh saying that they were "just not getting around to it" and they needed to get a few things done, including taxation advice and the valuations (neither of which were ever sought).

(3) Correspondence from Minh and Thuy referred to valuations being obtained, when they knew these statements were false.[287] This was not just a matter of oversight.

(4) The explanations given as to why the steps were not put in place were unsatisfactory. Years had been allowed to lapse without the steps being taken; the delay was not simply for a few months or so; such a lengthy delay made the suggestion that nothing was done "because of the work" of conducting the business implausible. Further, the explanation that nothing was done over all this period "because we trust each other" was also hollow in circumstances where that trust started to dissipate from late 2011 or early 2012.

(5) Minh and Thuy were able to move the business of Roo Sheetmetal into Roo and Oz Sheetmetal without having to address the substantial issues that needed to be addressed to implement the proposal; but for the falling out with Thomas, Minh and Thuy would have appreciated there was a real prospect that no one would have questioned the way things had been done; as Minh said on numerous occasions, the Family Members all trusted each other.

519 For completeness, I note that there appears to be real confusion in the mind of Joseph as to what was intended and what he says he agreed to in 2009. When it was put to him in cross-examination that when he referred in a previous answer to Roo and Oz Sheetmetal that perhaps he was referring to Oz Sheetmetal, Joseph rejected the suggestion stating that he "meant Roo and Oz. Oz is Oz, Roo Sheetmetal is Roo Sheetmetal. They are 3 separate companies". This is plainly wrong.[288]

520 To elaborate, the evidence of Joseph in relation to the 2009 Agreement creates substantial difficulties for the plaintiffs. The plaintiffs' case depends upon them establishing there was a meeting of the minds in accordance with the pleaded case on or before 4 May 2009. The evidence of what Joseph recollected was inconsistent with the plaintiffs' pleaded case. Joseph said Thuy told those at the meeting that Roo Sheetmetal and Oz Sheetmetal would "become the 1 company, a merging company". He said it would be a "new merging company". Joseph also said that Minh and Tuanh explained how Roo Sheetmetal and Oz Sheetmetal would become 1 and, although he could not recall the exact detail, stated that Minh showed those at the meeting "how to join 2 companies into 1 company".

521 Although Joseph's recollection at trial of what was stated, and therefore what he might have agreed to, may be different to what actually occurred (and based on Tuanh's evidence, I have found that it is[289]), the simple fact remains that Joseph gave no substantive evidence at trial that he agreed to the matters alleged by the plaintiffs to be the subject of the 2009 Agreement.

522 The next relevant event occurred on 15 June 2009, when Tuanh sent an email to Minh asking for the details of each director of Roo and Oz Sheetmetal "including the new directors". She also asked for the details of each shareholder. She stated that a bank officer was looking for this information so she could complete the necessary paperwork. Shortly after this email was sent, Thuy sent a fax to Tuanh, which Minh helped her to prepare. The facsimile set out the details of "each director and shareholders (sic)", which persons were listed in order as Thomas, Joseph, Minh, Son and Thuy.

523 On 16 June 2009, an email was sent by Minh to Tuanh attaching a letter from Thuy to the bank officer setting out the same details. (It appears Thuy did not actually send this letter to the bank.)

524 Also on 16 June 2009, Tuanh sent an email to the bank officer, which email was copied to Minh. That email referred to a conversation the day before and attached a list containing the names and other relevant details concerning "the proposed directors and shareholders of Roo and Oz Sheetmetal". The email stated that each shareholder "will have an equal share (ie 20%) in the company". The email continued:

You will note that [Thuy] and [Minh] are the current directors and shareholders of Oz Sheetmetal. Please note that the changes to the current structure will only take effect from 1 July 2009.

(Emphasis added.)

The email also noted that Tuanh had arranged that day for the company name to be changed from Oz Sheetmetal to Roo and Oz Sheetmetal.

525 Importantly, this email made it plain that there had been no change to the "current structure" and that that would only take effect from 1 July 2009. This no doubt reflects Tuanh's understanding that certain matters had to be put in place before the structure could be changed. There is no suggestion that Minh took any exception to the contents of this email. Minh gave no evidence to suggest the email was overlooked by him at the time.

526 After around June 2009,[290] neither Minh nor anyone else had any further discussions with Tuanh about the proposed restructure until matters became litigious in 2012.

527 On or about 20 June 2009, a new bank account was opened in the name of Roo and Oz Sheetmetal. Deposits of $200,000 each were made on 24 June 2009 from the existing bank accounts of Roo Sheetmetal and Roo and Oz Sheetmetal (although the account was still under the name of Oz Sheetmetal). It was common ground that from 24 June 2009 to 21 October 2009 a total of $1 million was transferred from the 2 old accounts to the new Roo and Oz Sheetmetal bank account by these simple transfers. An additional $100,000 was transferred from each of the accounts on 1 December 2010.[291] Thuy authorised each of these transfers. She said she spoke to Thomas and Joseph before implementing the transfers. Thomas denied Thuy spoke to him about the transfers. There is no independent objective evidence to enable me to decide whether or not such discussions between Thuy and Thomas took place.

528 On 22 June 2009, Thuy prepared a notice on Roo Sheetmetal letterhead. It was addressed to the suppliers of Roo Sheetmetal. The notice recorded that from 1 July 2009, Roo Sheetmetal and Oz Sheetmetal would be "consolidated" into Roo and Oz Sheetmetal. It further stated that all orders would be delivered to either Dandenong or Sunshine as specified when orders were placed. An identical notice was prepared on Oz Sheetmetal letterhead. Although Thomas said he did not see the notices at the time, he acknowledged that he "knew that the companies would be coming together to trade as 1 business". He also said he knew of "the letter" although he did not see it.

529 On or about 26 June 2009, PN & Nominees settled on a sale of 40 Cambria Road, Keysborough for the sum of $671,000. Joseph said he instructed Minh to take care of the negotiations in relation to the sale. The proceeds of sale were deposited into bank accounts held by PN & Nominees.

530 On 29 June 2009, Thuy also sent separate notices to the customers of Roo Sheetmetal and Oz Sheetmetal. Those notices said that, from 1 July 2009, Roo Sheetmetal and Oz Sheetmetal "will be merged into one company and will be (sic) trade as" Roo and Oz Sheetmetal. The notices also said "[i]n order for us to consolidate better" it was requested that all payments be made to either Roo Sheetmetal or Oz Sheetmetal or Roo and Oz Sheetmetal according to the tax invoices.

531 Although the timing is not entirely clear, between around mid 2009 and mid 2010,[292] new business cards were issued for each of Thomas, Minh, Thuy and Joseph. Each was described as a director of Roo and Oz Sheetmetal. Thomas said he was aware of the new business card issued for him, and that the head office was recorded as the office at Sunshine West, with Dandenong South being a "branch". It must follow that, at the time, Thomas was aware of the name change from Oz Sheetmetal to Roo and Oz Sheetmetal.[293] He denied having seen the business cards for Minh, Thuy and Joseph before he was in the witness box. There was no evidence to suggest he had been shown these other business cards.

532 On 12 August 2009, a further notice was sent by Thuy with the letterhead of Roo and Oz Sheetmetal entitled, "To our valued customers". That notice purported to remind customers that Roo Sheetmetal and Oz Sheetmetal "are joined into one big company" which was trading as Roo and Oz Sheetmetal. Thomas said he did not know this further letter went out. However, he did say that he told Thuy to tell the customers that "we are merging", and that he said to her she was to do whatever she wanted to do. Thomas said he trusted Thuy to "deal with this completely". It also appears from his evidence that Thomas knew customers and suppliers generally were being told of "the merger" by letters sent by Thuy.

533 The notice gave details of Roo and Oz Sheetmetal's new bank account, which was to be used for business transacted from 1 July 2009. The notice also stipulated that all invoices before 1 July 2009 for Roo Sheetmetal were to be paid into the pre-existing Roo Sheetmetal bank account, and all invoices before 1 July 2009 for Oz Sheetmetal were to be paid into the pre-existing Oz Sheetmetal account.

534 From mid 2009, both the business previously conducted by Roo Sheetmetal and Oz Sheetmetal's business were effectively conducted as a single business. All banking from 1 July 2009 was, subject to the matters referred to in the notice sent 12 August 2009, transacted through the new Roo and Oz Sheetmetal bank account.

535 In the financial year to 30 June 2010, Minh and Thuy each received a dividend of $107,500 from Roo and Oz Sheetmetal. The defendants submitted the court should find these dividends were paid to Minh and Thuy alone, and not to the other Family Members. I make no such finding. Thuy was asked no questions on this topic. When Minh was cross-examined, he acknowledged receipt, but then said he shared that money "back to the other people", whom he identified in re-examination as Thomas, Thuy, Son and Joseph. When he gave his evidence under cross-examination concerning the further distribution of the dividend, he was not challenged.

536 The defendants said Minh's evidence should be rejected because Minh made a reference to paying Thuy, which made no sense if she had already received a dividend. I understood Minh's reference to Thuy as saying no more that all the Family Members shared the dividends. The defendants also submitted documents evidencing payments from Minh were absent and it follows they were not made. Ordinarily, this submission may have some attraction, but the proposition was not put to Minh and the Family Members often dealt in cash. Finally, the defendants suggested Minh's reference to $40,000 in re-examination meant he was confused with a later dividend.[294] Whilst this confusion may have existed, it does not follow that Minh was being untruthful about the further distribution of the dividend of $107,500.

537 In around March or April 2011, the Family Members decided Roo and Oz Sheetmetal should pay another dividend. A facsimile sent 1 April 2011 recorded the dividend as $50,000 to Minh and $50,000 to Thuy.[295] This document does not reconcile with Minh's evidence that $40,000 was paid to each of Thuy and him as "the registered shareholders" of Roo and Oz Sheetmetal.

538 Thuy's bank statement shows she received a deposit of $40,000 on 27 May 2011. Thuy acknowledged this amount represented the dividend paid by Roo and Oz Sheetmetal.

539 Whatever be the correct amount, the evidence was that after the dividends were paid to Minh and Thuy, they paid tax on those dividends and equally distributed the net amount between the Family Members, including Thomas.

540 The evidence concerning the dividends paid at this time, and the manner in which they were distributed, demonstrates at least 3 things. First, at least Minh and Thuy fully appreciated in 2011 that no proper steps had been taken to change the company structure or legal ownership of Roo and Oz Sheetmetal. Somewhat strangely and contrary to any case contended for, so far as the distribution of dividends was concerned, together with the payment of tax, Minh and Thuy acted as if they were both the legal and beneficial owners of the shares in Roo and Oz Sheetmetal (albeit that they then distributed cash payments on a different basis). Secondly, all the Family Members, including Thomas, were acting on the basis that some arrangement had been made in 2009 for the ownership to be changed from what it had been previously. That said, the fact they were acting in this manner does not alter the fact that there was a failure of the Family Members to reach any agreement giving rise to a trust in 2009.[296] Thirdly, although the Family Members appeared to be acting pursuant to an arrangement that was never put in place, it is still of considerable significance that dividends were being distributed to all the Family Members.[297]

541 In mid 2011, Thuy and Thomas engaged in correspondence with the Department of Immigration and Citizenship ("the Department") concerning sponsoring Francis for employment with Roo and Oz Sheetmetal. The first piece of correspondence was a form 785, which recorded Roo and Oz Sheetmetal as the employer. Question 12 asked for the date of the commencement of business or the establishment of the organisation in Australia. The date was given as 29 October 1999. That was elaborated upon at the end of the form with the following:

... [Thomas] started Roo Sheetmetal in October, 1999. After having a successful operation with 3 of his older brother and sisters and their respective spouses, he invited his youngest sister and her husband, [Nga] and [Minh], to form a new company. In September 2003, Oz Sheetmetal was founded and successful (sic) operated under the management of [Minh]. Oz Sheetmetal operated as a separate entity from Roo Sheetmetal until June of 2009 when the two companies started the merging process and operating under Roo and Oz Sheetmetal.

(Emphasis added.)

542 Question 32 of the form inquired as to the future training plans for the business. In response, it was stated that Roo Sheetmetal "merged with our sister company, Oz Sheetmetal" to form Roo and Oz Sheetmetal. The future training plan was explained.[298]

543 The form was signed by Thuy on 19 May 2011, as "managing director". According to Thuy, the form was provided by Francis, who said that he had prepared it with information given to him by Thomas. On this premise, it must follow that, in 2011, Thomas was stating to Francis what is reflected in the contents of the form for the purpose of conveying the information to the Department. Although this evidence concerning Thomas' involvement was plainly hearsay, it was not the subject of any objection or challenge. Plainly, the defendants accepted its accuracy concerning the provenance of the information.[299]

544 Another document forming part of the correspondence with the Department was dated 2 June 2011 and was entitled "Merging Agreement". The body of that document commenced with the words "Effectively July 1st, 2009". The contents of the document suggested that Roo Sheetmetal and Oz Sheetmetal "have merged and have been operating under Roo and Oz Sheetmetal". It concluded with the words "all managing directors undersigned are equal partners as agreed". The document was then signed by each of Thomas, Minh, Thuy, Son and Joseph.

545 Thomas said when he signed this document he did not read it. When asked how he knew that, he said normally Thuy asked him to sign documents and that in this instance he heard her say something about Francis and the visa application or something like that, and he just signed it. When it was suggested that this evidence contradicted his earlier evidence that Thuy never explained anything, Thomas then said it was possibly Thuy or Francis who explained it, but he could not remember. The evidence was far from convincing. I expect, for the purposes of satisfying the Department's requirements, Thomas was content to sign such a document. Although it might have corroborated the case of the plaintiffs if there were credible evidence about the fact that a merger had actually taken place, the mere fact that Thomas signed this document does not alter the events as they occurred in 2009.[300]

546 Also dated 2 June 2011, a letter signed by Thuy was sent addressed to an officer at the Department. It referred to a request to provide evidence of the relationship between Roo and Oz Sheetmetal and Roo Sheetmetal. After stating that the 2 companies had family ties, and were managed under the same management, Thuy stated that:

As of today, the merging process has not been completed yet as it involves 5 family members and overwhelming amount of interests, but Roo Sheetmetal and Roo and Oz Sheetmetal effectively [have been] operating as one company effectively since July 2009. It is a complicated situation, however, we could supply the following documentation should you feel that they are acceptable.

(Emphasis added.)

The letter then referred to transfers of employees, the operating premises, business contracts that were transferred from Roo Sheetmetal to Roo and Oz Sheetmetal, and the "Merging Agreement".

547 The correspondence with the Department contains an acknowledgement from Thuy that as at mid 2011 the merging process had not been completed. It appears, despite this, Thuy, Thomas and the others were willing to sign documents to suggest that the merger had actually occurred. On the facts before the court, to the extent that assertions were made to the Department that the merger had been completed, they were wrong.

548 The evidence as to how these documents were provided to the Department was scant. I infer that the request referred to in the letter dated 2 June 2011 came after the form dated 19 May 2011 had been provided. Based on that inference, it follows that the "Merging Agreement", also dated 2 June 2011, was created and signed in order to meet the requirements of the Department.

549 Also in this bundle of documents was a letter dated 21 September 2010, but presumably sent around September 2011. The document was signed by Thomas. Despite this, Thomas said he had never seen the document before. He then volunteered that he thought this had something to do with Francis' visa. He then said he had never read the document. When asked how he could say the document related to Francis' visa, Thomas stated Thuy said the letter was in support of Francis' visa. Under cross-examination, Thomas agreed he had signed hundreds of documents. He was then asked how he was able to say that the document had something to do with Francis' visa, to which he responded "because she [a reference to Thuy] said support Francis' visa, I signed it. I remember a few times she said support for Francis' visa and I signed it, I didn't read it".

550 The letter spoke in terms of "the newly formed company" of which Thomas was a managing director. Whether or not Thuy thought this is what had occurred,[301] this reference to a newly formed company was plainly wrong.

551 From around 2009 to 2013, Roo and Oz Sheetmetal purchased 5 properties, 3 located in Victoria and 2 located in Queensland. It is unnecessary to deal with these transactions individually in any detail. With respect to 2 of the properties purchased in Victoria, Thomas was aware of their purchase at the time and believed they were being purchased by "the business" or "my business". Those properties were located at 81 Venture Drive, Sunshine West (purchased in 2010) and 75 Missens Road, Cranbourne West (purchased in 2011). He gave similar evidence in relation to the purchase of a property in Alessandra Circuit, Coomera, Queensland, which he said it was explained to him (by someone introduced to him by Thuy) that it would make a good investment for tax purposes. He said Thuy also supported the purchase. As to the remaining 2 properties purchased, Thomas gave evidence that "title searches and financial reports" revealed the fact that these 2 properties were purchased in 2012 and 2013. I infer from the manner that this evidence was given that Thomas had no direct knowledge of the acquisitions.

552 In late 2011 or early 2012, Francis ceased to be employed by Roo and Oz Sheetmetal.[302] Both Minh and Thuy knew at this time that Francis was intending to set up his own business in Brisbane.[303]

553 Thuy said that she decided that Francis' lifestyle and personality were not suitable for joining with the Family Members in any new business.[304] When this was discussed at a family meeting in early 2011, Minh said he agreed with Thuy.[305] There was no suggestion Thomas stated that he agreed with the opinion expressed at this meeting.

554 In January 2012, Thuy arranged for Roo and Oz Sheetmetal to sell machinery to Francis for the purposes of the new business he was setting up. Francis paid $30,000 in cash for the machinery. Thuy refused to lend Francis any money for this purchase. The cash was provided by Thomas, by way of a loan.[306] Thomas had previously said to Thuy that they had to look after Francis, and that Roo and Oz Sheetmetal should sell machinery it no longer used to Triangle Sheetmetal. However, Thomas did not tell Thuy about the loan to Francis.

555 Within a couple of days of Francis attending at Roo and Oz Sheetmetal to collect the machinery, he met with both Thuy and Minh. They gave Francis advice, Thuy stating that she told Francis "all what I had gone through". At the time she gave the advice, she knew Francis was setting up his own business in Brisbane. She said she understood the business was assembling "cold ducts".

556 During the discussion with Francis in January 2012, Francis told Thuy the business was to assemble ducts, but if things were too urgent then Francis would manufacture himself in order to meet the deadline. Thuy accepted during cross-examination that the equipment sold was also for the making of ducts, not just assembly. By these events, it is plain Thuy knew Francis would be involved in a new business in Queensland, and it would both assemble and manufacture airconditioning ducts. Any assertions by Thuy to the contrary in 2012[307] were baseless.[308]

557 On 18 March 2012, a meeting was held at the Dandenong factory between Thomas, Minh, Thuy, Son and Joseph. Tinh and Tina were also present. At the start of that meeting, Thuy stated that the meeting was to be recorded.[309]

558 Thuy spoke first and stated that the meeting "starts with 5 families" and that those 5 families had "made us where we are today". Thuy, Minh, Joseph and Son each made opening statements. When Thomas was invited to do so, he initially declined. Thuy stated that the brothers and sisters had opened the business to work together for "our own benefits". She stated that each of them had a share in the benefits. Thuy also stated that, when the business was opened, there was a promise to each other that none of the Family Members would be allowed to go their separate ways or "contribute with outsiders", and that all decisions had to be mutually agreed between the 5 of them. After various comments were made in support of this by Son and Joseph, Thomas responded as follows:

In my opinion, initially I assigned the setting up of the company to you which was done, and everything has been okay. When you joined the company, I said that if it suited me, I would stay, otherwise I would leave and would have the right to start afresh. I had that right because I am the person who set up the company. I have said it 3 times before, at the start up of the company. The next time I did not mention it but I did repeat that I would stay if we work well together, otherwise I would leave and benefit from my share in the company. I said it in advance. As for the recent incident I did not have a share in [Francis]'s company [a reference to Triangle Sheetmetal]. The reason I helped the company [was] because, first of all ...

(Emphasis added.)

Thomas was then interrupted by Joseph. However, the important matters to note from the above passage are that Thomas did not challenge much of what had been said by Thuy, including that each of the Family Members had a share in the benefits of the business. On the contrary, he took issue with any suggestion that he was not entitled to leave and still benefit from "my share" in the company. After the interruption, this point was reiterated by Thomas who said he made it clear 3 times that he could stay if he was happy, but he had the right to stop working for the company if he chose to do so.

559 A short time later, Thuy acknowledged that Thomas had previously stated that after the company was running smoothly, Thomas would go to Vietnam to do charity work. However, she queried Thomas ever suggesting that he wanted to do something else. There was then some discussion about what Thomas had previously said he wanted to do. During the course of various interchanges about what Thomas had said, Thuy acknowledged that Thomas had already assisted people in Vietnam with blindness and leprosy. She also acknowledged that Thomas was always thinking about doing charity work and that Thuy had supported him in that.

560 There was then an extensive discussion about Francis. During the course of that discussion, Thuy acknowledged that although the decision had been made not to open a business for Francis, "we sold him some machines, which was our effort to help him". There was then a reference to the fact that discussions with Francis had involved the possibility of him setting up an installation business in Queensland, but not a manufacturing business. It seems that at least Thuy and Minh thought they had the ability to control what business Francis might operate in Queensland. There was no suggestion there was any contract or other arrangement which prevented Francis from conducting any new business as he saw fit.

561 After further discussion about dealings with Francis,[310] Thuy directly asked Thomas whether he had contributed to "the business with Alan [O'Brien] and [Francis]" [ie Triangle Sheetmetal]. In response, Thomas stated he had been asked to join the company by O'Brien, but he had declined.[311] Thomas then gave a lengthy explanation as to why he felt sorry for Francis. He also explained how O'Brien did not want to go into business with Francis if Thomas was not involved. Thomas said that he suggested to O'Brien to get Chinh involved instead of Thomas.

562 Thomas was again interrupted, this time by Minh, who asked him to keep it short. After Thomas continued with his explanation, he was interrupted by Thuy who again asked Thomas whether or not he had contributed to Triangle Sheetmetal. Thomas confirmed that he had not. But Thomas acknowledged Chinh had contributed. After Joseph then interjected, Thomas responded by stating he had only helped O'Brien and Chinh "with starting up" and that he was not involved from then on. He also stated that "this was all Chinh's business" and that Thomas only collected the land rental.[312] The discussion went on for some time concerning Francis and Triangle Sheetmetal. During the course of this discussion, Thuy raised the fact that Thomas had given money to Francis for Francis to purchase machinery from Roo and Oz Sheetmetal.

563 Thuy also said she had spoken to Chinh, who had told Thuy that Thomas "will sell his shares" to Chinh. The plaintiffs suggested at trial that this was a reference to shares in Thuan Phuoc. However, Thuy gave no evidence about her discussion with Chinh. Further, when Chinh was called, he said he had never had any discussion with Thuy about Thomas selling any shares in Thuan Phuoc to him.[313]

564 The plaintiffs also submitted that, because Thuy stated that she not only telephoned Chinh but she also called Francis, O'Brien and 1 other person, that meant "the surrounding context of the recording" made it clear Thuy was referring to Thuan Phuoc both at the 18 March 2012 meeting and also in her conversation with Chinh. As to the latter, it simply does not follow that because Thuy telephoned Francis and O'Brien that Chinh was necessarily talking to Thuy about Thuan Phuoc. As to the former, it is of little or no significance what Thuy thought she was referring to. As already noted, she gave no evidence of her discussion with Chinh. Further, the recording shows Thomas did not respond directly to this part of the meeting. There is nothing to suggest that Thomas understood Thuy to be referring to Thuan Phuoc.

565 Returning to the meeting, a little later Thomas said that he had "given it all to Chinh". It was put to him in cross-examination that that was a reference to the shares in Thuan Phuoc. Although Thomas acknowledged that Chinh had no interest in Xuyen Viet, he denied he was referring to Thuan Phuoc. Thomas elaborated by stating that he had tried to give Chinh an interest in Xuyen Viet because Vien no longer ran the company.[314] Thomas said Chinh was not interested beyond helping out when Vien was in Australia.[315] In effect, Thomas said that, as a result of not being able to get someone to run Xuyen Viet, he "lost a lot of money". Thomas' evidence was corroborated by Chinh.[316] On a fair reading, the statement that he had given it all to Chinh does not appear to be a reference to Thomas having previously held shares in Thuan Phuoc, and then had given those shares to Chinh. Thomas' statement is equally consistent with the earlier discussion about Thomas assisting O'Brien by getting Chinh involved with Triangle Sheetmetal.

566 Shortly after this exchange, Thomas again referred to the early days of Roo Sheetmetal. Repeating what he said earlier, Thomas focused on his ability to leave the business. He said nothing to suggest that the other Family Members did not have an interest in the business.

567 The discussion concerning Francis, Triangle Sheetmetal and Thuan Phuoc was extensive. Much of it was in the same vein as discussed above. It is unnecessary to go through this aspect of the meeting in any further detail. In summary, reading the transcript as a whole with the benefit of the evidence given at trial, in my view, there is nothing to indicate that Thomas acknowledged he had a shareholding in Thuan Phuoc or Triangle Sheetmetal. In essence, the acknowledgements of Thomas were that he assisted Francis and O'Brien (I expect, largely because of Thomas' concern not to leave Francis without any opportunity), and it was this assistance that gave rise to the suspicions of the other Family Members about Thomas having some form of ownership in Triangle Sheetmetal.

568 It is clear from the transcript that matters became quite heated. Thuy suggested that Thomas had betrayed "the company, the brotherhood and your family". Minh then suggested that Thomas had to decide to have no contact with the other business and that that could be accepted, but then took exception to Thomas demanding he could automatically withdraw from their business at any time. Thomas reiterated that this is something that was promised a long time ago, "before you guys joined". Thomas said it was a condition of him "to take you in". Thomas said he wanted to keep the position that he was entitled to withdraw. He said perhaps he would retire. He said he would never set up another company.

569 Thomas suggested he would be happy to live off the profits of the business. In response, Minh inquired whether Thomas understood that if he withdrew then he would have to wait for "your share of the profit at the end of the year". Thomas stated he was happy to do this without any other pay. Thuy interjected and said she wanted Thomas to think about it because she did not want him to make a decision "like this" when he was anxious.

570 However, the meeting continued with people repeatedly talking over each other. Eventually, Thuy asked Thomas whether he wanted to withdraw. In response, Thomas said:

If we can't work, I withdraw. I will set up somewhere else. But for what was promised, you can't make me retract my statement. If you want to work together, I won't work for the other business. If you want to withdraw, then let's separate and I can go and set up wherever I want.

Shortly after this, Thuy said "we will divide into 5 shares", with each having 1 part. Thuy said she would retain a lawyer to divide the company,[317] that they could not trust Thomas and so they could not work with him. In response to this, Thomas said he would find "how to pull Roo out". Joseph then asked about Roo and Oz Sheetmetal. Thuy responded that "we still keep" Roo and Oz Sheetmetal. Joseph then asked about the restructure. After some further discussion, Thomas said if they wanted him "to go, then divide".[318] Thomas then asserted that he had already helped Francis, but that was done and that he only worked "here, not there anymore".[319]

571 Thomas said he had been at a party before the meeting, and that Tina had taken him from the party to the meeting. As a result of the party, Thomas said he was "half drunk" at the meeting. Whatever Thomas' level of intoxication at the time, the transcript suggests he was perfectly capable of communicating in a coherent and responsive manner.

572 On 22 March 2012, Francis sent an email to Thuy expressing his disappointment that he was not setting up a business with Thuy and Thomas, describing it as "a sad point for our family". That email attached an earlier email from Francis to JL Williams referring to establishing a "mutually beneficial business partnership" in Brisbane. It appears Francis did not consider he needed to conceal such matters from Thuy.

573 The level of mistrust that existed at around the time of this meeting was demonstrated by the fact that Joseph secretly concealed an audio recorder behind Thomas' work desk to tape his conversations. A conversation recorded between Thomas and Chinh included discussion of a dongle.[320] Thomas was positively suggesting to Chinh that the dongle be used. At 1 point, he stated "Chinh just install it on a machine of yours". It was unclear which dongle was being discussed. Further, there is nothing in the recorded conversation to suggest that Thomas had any ownership in the equipment in which the dongle was being installed. On the contrary, the language used suggested that Thomas thought Chinh owned the machinery.[321]

574 A further meeting was held on 29 April 2012 at the Parents' home in Maidstone. Part of that meeting was recorded. In attendance included the Parents, Thomas, Tina, Minh, Nga, Thuy, Son, Joseph and Tinh. During the course of the discussion, Thuy said to Thomas that if he wanted to divide, then they would split "it into 5 parts". Both Thomas and Tina were asked whether they wanted their part in Thomas' name or if they wanted separate shares, 1 for Thomas and 1 for Tina. Tina said she did not know. Thomas said he wanted "our part" to be in both names. There was no suggestion by Thomas or Tina at any stage during the meeting that Thomas owned all the shares in either company or that the other Family Members did not have an entitlement to a share.

575 Yet another meeting the subject of a recording was held on 6 May 2012, this time at Thuy's house. Each of the Family Members and their spouses were present. Thuy told everyone at the start of the meeting that it was to be recorded.

576 During the discussion, strong words were spoken between Minh and Thomas about Thomas providing a dongle to Francis. During this exchange, Thomas admitted that he agreed to help Francis with the dongle. In response to certain accusations made by Minh, Thomas said the dongle in question belonged to Roo Sheetmetal, not Roo and Oz Sheetmetal. In response, Minh suggested the registration of the dongle through Roo and Oz Sheetmetal was sent to him. After further extensive discussion, including about dealings with Francis and the dongle, Minh stated that if he did not have the dongle back within a week he would "sue to the end".

577 Later, the discussion moved to Thomas' future. Thomas made similar statements to those made on 18 March 2012, namely that, at the time he "brought in" the other Family Members, he said it was agreed that when the company was set up Thomas and Tina could retire early and do what they wanted. He said this was stated and agreed to. Thomas said that retirement meant that he could do what he wished to do, not simply just do nothing.

578 Without descending to further detail, the meeting again became heated. Eventually, Thomas became contrite. He said he did not know what else to say. He said truthfully in his heart he wanted to move Francis out but he "got stuck on that". He said 1 thing led to another with Thuy and he did say some lies. He said there were nights he could not sleep because of his wrongdoings. He acknowledged that he had done wrong. The discussion then turned to what Thomas wanted to do. Tina said she wanted the brothers to stay united. Son then asked for Thomas' opinion. Thomas said:

Me too. Because of the partnership and of helping ...

He was then cut off by Joseph. The use of the word "partnership" by Thomas suggested the others were more than just employees. Thomas suggested under cross-examination that the reference to "partnership" was a reference to working together in partnership with his brothers and sister and in the future he should give them "the loving gift". I do not accept Thomas was talking about the future position. At the time, the discussion was clearly about matters as they then stood. However, as discussed above,[322] the use of the term partnership in the context of this case is capable of more than 1 meaning.

579 The topics of Triangle Sheetmetal and Thuan Phuoc were also discussed. It is not necessary to go into the detail. Suffice to say, like the position on 18 March 2012, Thomas did not say anything which would amount to an admission that he had any ownership in either Triangle Sheetmetal or Thuan Phuoc. Although Thomas made a reference to telling Thuy that he would "sell it", this statement was consistent with a reference to the land that Thomas owned in Vietnam. Even if this is not what he was referring to, such a statement cannot amount to an admission of ownership of shares in Thuan Phuoc as alleged by the plaintiffs.

580 It is not clear from the transcript of the meeting precisely how the meeting ended.

581 On 9 June 2012, Thuy wrote a lengthy letter to Thomas. Thomas said he received the letter, but never read it. Accordingly, the letter does little to advance any case against Thomas. However, the following should be noted:

(1) Thuy acknowledged in the letter that the Family Members had assisted Francis by selling "our machinery to him at a low price, helped and gave him necessary advice on how to do business from the start".[323] Thuy said that they did not set any limitations or conditions, and even ignored the possible competition if Roo and Oz Sheetmetal were to be expanded in the future.

(2) Thuy said Francis not only showed ingratitude for what was done for him, but that he also planned to take advantage of "our company's name and electronic software to benefit his own business".

(3) Thuy said she knew Thomas well and that he was more or less, very kind-hearted, thought well of other people and that he believed that "they are like you".

(4) Thuy said she worried about Thomas and his family and wondered whether or not Thomas had signed any commitment with Francis. Thuy stated that what "we have done and given to [Francis] is far more sufficient" and it was no longer necessary for Thomas to do anything for Francis.

(5) Thuy acknowledged it was alright for Thomas to assist Francis, but said providing Francis with "our company's electronic software - this is a step 'too far'" (emphasis added).

(6) Thuy stated in a postscript, that after writing the letter, she thought that if Thomas was actually dissatisfied and did not believe in his blood brothers and sisters, he should automatically leave Roo and Oz Sheetmetal and do business with Francis, Chinh and O'Brien. She stated that then Thomas could expand and do business the way he liked.

582 It is clear from the letter, even though it was not read by Thomas, that Thuy was acknowledging that all of them had helped Francis in the past, including with setting up a new business, but that Thuy was of the view (as no doubt the others were as well) that Thomas had gone too far in providing the dongle. It is also plain that Thuy thought that Thomas was free to leave the business and pursue a business venture with Francis if he chose to do so. However, this attitude was not shared by all the other Family Members. Finally, Thuy effectively acknowledged that she did not know whether Thomas had made any commitment to Francis or Triangle Sheetmetal.

583 On 26 June 2012, Minh, Thuy, Son and Joseph met to discuss Thomas' future. At the meeting, Thuy drafted a letter to Thomas which was approved by those in attendance. Thomas did not recall receiving the letter. The letter referred to 3 previous meetings in March 2012, on 29 April 2012 and on 6 May 2012 (being the meetings referred to above[324]). The letter stated that the Family Members other than Thomas were patiently waiting for Thomas to change his attitude, but Thomas had acted as if nothing had happened. The letter then stated that a decision had been made to give Thomas 1 last chance at a meeting to be held on 28 June 2012. Such a meeting took place, though Thomas said he did not have any advance notice that it was going to be held.

584 The meeting on 28 June 2012 did not go well. It did not last long. Things again became heated. Thomas walked out. Thomas gave evidence that, before he did so, the issue of the dongle being provided to Francis was raised by Minh. Thomas said in response that the dongle was his because it came from Double T Sheetmetal. Thomas said Minh was shouting and Thomas was deeply offended. Thomas then said in substance that he had given them so much already and that Francis had nothing. Thomas said they had helped Francis like Tru had helped him and that he wanted to help Francis like he had helped them. He asked "why are you people so selfish". He then used a Vietnamese phrase to express his disgust for what he considered to be Minh's pettiness. Thomas was not cross-examined on this version of events.[325]

585 According to Minh, Thuy and Joseph, as Thomas departed he stated that he would destroy the company. Son did not give this evidence, though he said that Thomas stormed out. Thomas denied making such a statement. In giving evidence of his denial, Thomas said he would not have done so because it was his company. I do not accept Thomas' evidence. The operative company at the time was Roo and Oz Sheetmetal, and it was plain that Thomas did not consider that to be his company at that time or at the time of many earlier discussions. After Thomas left, Minh and Thuy decided (or perhaps confirmed) it was impossible to work with Thomas. They decided to terminate Thomas' employment immediately. Joseph and Son acquiesced in this course of conduct.[326]

586 On either 28 or 29 June 2012, Thuy prepared a letter dated 29 June 2012 entitled "meeting dated 28 June 2012", which letter was co-signed by Minh, Thuy, Son and Joseph. It was written in Vietnamese on Roo and Oz Sheetmetal letterhead.

587 The letter, as translated, included the following:

As a result [of Thomas leaving the meeting] the remaining 4 parties including Son, Thuy, [Joseph] and Minh had to come up with a decision. It is impossible to work with [Thomas] as from today which is the 28th June 2012.[327]

1. [Thomas] will be notified officially the next day of the decisions made by the remaining 4 parties, ie Son, Thuy, [Joseph] & Minh, as follows:

― Write a letter to [Thomas] regarding immediate termination of his employment.

― Write a letter to customers stating that [Thomas] no longer works for [Roo and Oz Sheetmetal] as from today.

― Write a letter informing all workers of the company that [Thomas] no longer works for the company.

― Write a letter inviting [Thomas] to come for the division of shares.

1. The company will never sell all its assets in order to divide into the 5 shares, but only allocates the 5 shares by evaluating the cash value of all of the company's assets. [Thomas] will be given one share (in cash), the remaining 4 parties will continue with their business as usual.
2. The company will engage an accountant to make the distribution/allocation of assets.
3. If matters do not unfold in a pleasant or satisfactory manner then everyone should engage a lawyer so it can be fairly resolved.
4. If [Thomas] has any suggestion, he should inform everyone in the company by letter or email.
5. As from 1/7/2012 [Thomas] is not to access the factory(ies) without the agreement of the remaining 4 parties in the company. Any breach by [Thomas] will be dealt with by the remaining 4 through the law.
6. During the period waiting for his allocated share in the company's assets, [Thomas] will be paid one month's salary. He is allowed to use the vehicle(s) and the separate credit card (for petrol allowance only) until 31/7/2012.

588 Somewhat remarkably, each of Minh, Thuy and Joseph gave evidence that, at the time this letter was signed and faxed to Thomas, they did not want him to leave the company. They never conveyed this sentiment to Thomas at that time. This evidence could only be accepted on the basis that they wanted him to stay strictly on their terms and not otherwise. Even on this basis, it is difficult to accept these assertions. Thuy had already stated she thought Thomas should go.[328] Also, the language in the letter dated 29 June 2012 gave no hint of any desire to have Thomas remain; quite the contrary it made it clear Thomas was completely unwelcome and action to remove him was to be taken immediately.

589 In short, I find that at least Minh and Thuy had decided once and for all that Thomas had to leave and no longer have any share in Roo and Oz Sheetmetal (or Roo Sheetmetal). This was a decision of the plaintiffs as any decision of Minh and Thuy, as a matter of practicality, governed the position of Son and Joseph.[329] The fact that Thomas was excluded from the business of Roo and Oz Sheetmetal at this time was admitted by the plaintiffs on the pleadings.[330]

590 Before continuing on with the events, it should be observed that at no time did the plaintiffs, or anyone on their behalf, engage an accountant to make a distribution or allocation of assets, or to take any steps to value Thomas' alleged share. Indeed, it was not until a further statement of claim was filed on 7 October 2014 that the plaintiffs acknowledged in this proceeding that Thomas was entitled to any relief reflecting his alleged interest.

591 On 29 June 2012, Thomas attended at his office in Dandenong and packed up his belongings. Son observed him doing this. Son asked Thomas not to go. Son was crying and pleading with Thomas to stay. By this stage, Thomas was resolute. Thomas said that, by sending the letter dated 29 June 2012, he believed Thuy was trying to trick him. Thomas rejected Son's pleas in strong terms. Thomas stated that all his "brothers" had betrayed and tricked him. In addition, Thomas gave evidence that Son said the other Family Members would pay Thomas $2 million, that Thomas should take that money, set up his own business, and that Son would come and work for him. Son denied saying such things. I seriously doubt Son would have been in a position to state how much money might be paid to Thomas, but nothing substantive turns on whose account is correct.

592 On 24 July 2012, a cheque for Thomas for 4 weeks' salary was prepared. This was consistent with item 7 of the letter dated 29 June 2012.[331]

593 The following day, a letter was sent to Thomas, signed by Minh, Thuy, Son and Joseph. The letter was entitled "Distribution of shares". The letter recorded that Thomas had been paid 4 weeks' salary. However, the letter also requested Thomas to pick the money up, alternatively it would be posted to him. (It was common ground that, around this time, Thomas collected the cheque.) The letter then stated that an accountant was being asked to work out the "grand total value of the company's assets in cash and divide it into five portions". This was completely untrue. No accountant had been approached, let alone retained. Both Thuy and Minh ultimately acknowledged this.

594 Thuy's evidence on this issue was evasive. When first asked whether she engaged accountants to commence the distribution of assets she said she did not recall. When it was put to her that she never engaged her accountant, she said she did speak to a person who worked for the accountant. She then said that she partially retained the accountant, but she could not remember what date it was. She said she recalled asking the accountant's assistant to check the company's assets, how much they were worth and to put it down on paper. She said the assistant was in the process of doing this when the "papers from the lawyers arrived".

595 Thuy was then referred to a letter sent on 7 November 2014 by the plaintiffs' solicitors. That letter stated unequivocally that no instructions or other communications were engaged in by the plaintiffs for the purpose of the valuation process contemplated by the Family Members, including at the meetings on 26 and 28 June 2012. After Thuy was further cross-examined about any detail of any instructions to get a valuation, belatedly Thuy accepted that she never engaged an accountant to engage in this exercise. Even then, she found it difficult to give a direct answer.[332]

596 Minh suggested that Thuy wanted to obtain a valuation at the time the proposal to distribute the shares was sent. Then he suggested that perhaps Thuy and he missed the words in the letter.

597 The evidence of Thuy and Minh on this issue was totally unsatisfactory. Further, it is clear that a false assertion was being made. Notwithstanding this, the letter concluded by stating that if Thomas had not made contact by 15 August 2012, there would then be a "distribution of shares" in accordance with what was stated in the letter. Despite the fact that Thomas never responded directly to this letter, the plaintiffs did nothing to implement any distribution. To the extent that it was being suggested that the plaintiffs were taking steps to value Thomas' share and give him his entitlement, the falsity was ongoing. (In light of this, it is difficult to understand the basis for the plaintiffs' submission that the letter constituted a reasonable offer to purchase Thomas' shares in Roo and Oz Sheetmetal.[333])

598 Also on 25 July 2012, notices were circulated to suppliers of Roo and Oz Sheetmetal informing them that Thomas no longer worked for the company.

599 Thomas' next communication to the other Family Members was from his lawyers. On 3 August 2012, a letter was sent to Roo and Oz Sheetmetal by Thomas' then lawyers, Lay Lawyers. Before this letter was sent, Lay Lawyers had conducted searches and obtained historical extracts for Roo Sheetmetal, Roo and Oz Sheetmetal and PN & Nominees. The letter recorded that Lay Lawyers acted for Thomas and Roo Sheetmetal. After referring to the fact that Thomas was the sole director and shareholder of Roo Sheetmetal, demand was made for delivery of all the documents of Roo Sheetmetal to Thomas.

600 Thomas said he did not read the letter. However, I do not accept that Thomas was not aware of at least the substance of the letter's contents at the time. As subsequent events demonstrate,[334] he acted in accordance with the letter. In any event, the contents of the letter are detailed. Thomas was the only person from whom the necessary instructions could have come. The letter was followed up with a further letter from Lay Lawyers on 6 August 2012.

601 In response to this correspondence, on 6 August 2012 Thuy sent a letter by facsimile to Lay Lawyers.[335] This letter was drafted by Minh. The letter stated that Thuy was willing to provide Thomas with all of the documents relating to Roo Sheetmetal. It requested that arrangements be made for Thomas to collect those documents from Roo and Oz Sheetmetal's offices in Sunshine West. It must follow that Minh and Thuy both agreed that Thomas should get all the documents of Roo Sheetmetal.

602 Also on 6 August 2012, Thomas sent a letter to Tuan on Roo Sheetmetal letterhead. When first taken to this letter, Thomas suggested, implausibly, that Thuy must have given it to him. He then accepted that his lawyers gave it to him for signing. He said he did not know of or understand the letter and that he could not "write like this". Thomas said he was very stressed at the time and that he had his nephew, Tan, do everything for him.

603 Whilst I accept the language used appears to have been drafted by a lawyer, I do not accept Thomas' evidence that he did not understand the nature of the document he was signing. The letter revoked all prior authority given to Thuy or Minh with respect to Roo Sheetmetal. Such a letter is entirely consistent with Thomas' demands made through his lawyers on 3 and 6 August 2012 concerning his position as sole director and shareholder of Roo Sheetmetal. It is also consistent with a course of conduct that included Thomas instructing Lay Lawyers to write a letter to National Australia Bank to prevent anyone other than Thomas from accessing Roo Sheetmetal's accounts. Thomas gave evidence of giving these instructions.

604 During cross-examination, when it was drawn to Thomas' attention that the letter only referred to Roo Sheetmetal, Thomas suggested the letter was a reference to both Roo Sheetmetal and Roo and Oz Sheetmetal. Such an assertion was plainly incorrect. Thomas then said that, at the time he instructed Lay Lawyers, he told Lay Lawyers that both Roo Sheetmetal and Roo and Oz Sheetmetal were his companies. I do not accept this evidence. None of the correspondence reflects any instruction by Thomas to Lay Lawyers that Roo and Oz Sheetmetal was his company alone (ie to the exclusion of the other Family Members). All the correspondence was confined to asserting that Roo Sheetmetal was Thomas' company. At no time did Lay Lawyers purport to act on behalf of Roo and Oz Sheetmetal.

605 On 7 August 2012, Thuy sent a letter by registered post to Thomas on Roo and Oz Sheetmetal letterhead. As a director of Roo and Oz Sheetmetal, Thuy informed Thomas that, as at 9 August 2012, the insurance on Tina's car, which had apparently been paid by Roo and Oz Sheetmetal, would be cancelled. Thuy also requested that Thomas return his car to Roo and Oz Sheetmetal as he was "no longer an employee of our company [and] no longer entitled to possess this vehicle". Finally, the letter asked Thomas to return his mobile phone as, according to the letter, it was owned by Roo and Oz Sheetmetal. The letter invited Thomas to call as soon as possible to arrange the returns.

606 Under cross-examination, it was put to Thuy that, in demanding the return of the car and the phone, she was not treating Thomas as an equal shareholder in the business. Thuy said that Thomas did have an equal share. She said the reason she wanted the items back was because, after Thomas had stopped working at the company, she did not want the company car driven because if something was to happen it would be a risk to the company. When it was put to Thuy that that was errant nonsense, she responded that she wanted to think. She then said she thought she had her reasons. When it was pointed out to her that there were other non-employees who drove company cars (such as Nga), Thuy stated that that was correct but "it's got its own reason". She then said everything has its own reason. She denied that the reason she was seeking the returns was because Thomas had disagreed with her.

607 Minh acknowledged that he was aware of the contents of the letter dated 7 August 2012, and that he participated in its drafting. He rejected the suggestion that he was being petty in cancelling Tina's car insurance. He said the letter informing Thomas of the cancellation was sent as a matter of principle. When asked what the principle was, he said it was that Thomas was no longer working with the company. After acknowledging that spouses of some of the Family Members had cars provided by the company even though they were not employees, including his wife Nga, Minh simply stated that the principle was that because Thomas was no longer working with the company, he was required to return the company's belongings.

608 On 8 August 2012, Thomas sent a letter to Thuy on Roo Sheetmetal letterhead. He acknowledged receipt of the letter sent the previous day and asked that all correspondence be forwarded to his lawyers. He suggested that his solicitors would respond once they had received a signed copy of the letter. Again, there was no suggestion that the demands made by Thuy on behalf of Roo and Oz Sheetmetal were misconceived by reason that Thomas or Roo Sheetmetal wholly owned Roo and Oz Sheetmetal.

609 On 10 August 2012, Thuy sent a further letter to Thomas acknowledging the previous correspondence and again demanding return of the car and the phone.

610 On 14 August 2012, Lay Lawyers sent a letter to Thuy, care of Roo and Oz Sheetmetal. In that letter it was stated Thomas would not be returning the car or the phone on the basis that those items may be owned by Roo Sheetmetal, and not Roo and Oz Sheetmetal. The letter stated that if it were determined that the car and the phone were owned by Roo and Oz Sheetmetal, they would be returned as soon as practicable. A request was made for any documents supporting the allegations that those items were owned by Roo and Oz Sheetmetal.

611 Obviously, this correspondence is problematic for Thomas. It is entirely inconsistent with his case that at all times he was the owner of Roo and Oz Sheetmetal, and always believed that to be the position. When confronted with this letter in cross-examination, Thomas said he did not know what the lawyer was writing. I do not accept this evidence. Thomas was giving instructions to Lay Lawyers at the time, with the assistance of Tan. Tan was not familiar with the affairs of Roo Sheetmetal or Roo and Oz Sheetmetal generally. The instructions could only sensibly have come from Thomas. There was no evidence from the solicitors in question to suggest otherwise.

612 Arrangements were put in place for Thomas to collect all of the documents of Roo Sheetmetal. To this end, Thuy drafted a letter to be signed by Thomas in which Thomas, as sole director of Roo Sheetmetal, acknowledged that he had received the documents listed. After listing the documents, an acknowledgement provided that Thomas release Thuy "and any of her associates from and against any claim for loss or damage in connection with" the documents listed.

613 On 17 August 2012, Thomas duly signed the document prepared by Thuy. Thomas also signed 3 additional lists which purported to record the documents provided to him. Thuy said copies of the documents provided to Thomas were not taken by her, save for those that she thought were relevant to the litigation.

614 Pausing there, in Thuy and Minh acknowledging Thomas' right to all of the documents in Roo Sheetmetal as the sole director and shareholder, they were acting contrary to the case that the plaintiffs now put. This is a matter I have taken into account in reaching the conclusions that I have. A likely explanation for Thuy and Minh accepting assertions about Thomas' ownership of Roo Sheetmetal is that, by that point in time, Roo Sheetmetal had been stripped of most of its assets. Even taking into account the property[336] and term deposits[337] held by Roo Sheetmetal in August 2012, the vast majority of the assets of the 2 companies were in the name of Roo and Oz Sheetmetal. Although no evidence to this effect was given, it is highly likely that, as the only directors and shareholders registered for Roo and Oz Sheetmetal, a tactical decision was made to allow Thomas to assert sole ownership of Roo Sheetmetal without challenge because Minh and Thuy could equally assert ownership of Roo and Oz Sheetmetal based upon the records of the company and the registered position with ASIC.

615 Whilst these events were occurring, Thomas also took certain matters into his own hands. In August 2012, Thomas closed 2 term deposits held with the National Australia Bank in the name of Roo Sheetmetal. Upon doing so, Thomas received the balances of those term deposits, being $40,000 and $381,513.20.

616 Thomas did this without any communication with the other Family Members. He sought assistance from his lawyers before withdrawing these moneys. Thomas was advised by his lawyer to transfer all the money into his bank account "to keep it safe".

617 Upon the withdrawal of the term deposit funds, Thomas credited the funds to his home mortgage. Again, he gave no advice to the other Family Members that he was doing this.

618 Also, on Thomas' instructions, on 2 August 2012, Roo Sheetmetal lodged a caveat on the title of the Rodeo Drive property.[338] On 14 August 2012, demand was made by the plaintiffs for its removal. The letter sent by the plaintiffs' solicitors made no suggestion that the caveat should be removed because Roo Sheetmetal was a company owned by Roo and Oz Sheetmetal. When this was put to Minh during cross-examination, he accepted he never gave those instructions at the time. Minh also added that he did not know that at the time. He said he had explained to Tuanh what had happened, had obtained advice from a lawyer and the letter had been sent. He repeated that he did not know that "we can keep Roo Sheetmetal".

619 This evidence of Minh flies in the face of the case of the plaintiffs that, in April or May 2009, all of the Family Members agreed that Roo Sheetmetal was to become a subsidiary of Roo and Oz Sheetmetal. Minh was the driving force in the discussions in April and May 2009. His state of knowledge in August 2012 speaks volumes as to the lack of clarity of what was proposed, or conditionally agreed, in 2009.

620 On 20 September 2012, Son sold a property at 9 Leonard Avenue, Noble Park to Roo and Oz Sheetmetal for $700,000. Son said it was sold because it would allow his siblings to benefit from the property. He said he made enquiries of an agent and was told about its potential growth in value, and discussed this with the Family Members (ie including Thomas). Son rejected the suggestion in cross-examination that the agreement with Roo and Oz Sheetmetal to purchase this property was to reward him for supporting Minh and Thuy against Thomas. There is no probative evidence upon which the court could find that the sale was for reasons other than those stated by Son.

621 Sometime in October 2012, the plaintiffs retained Baker & McKenzie to act on their behalf for the purposes of this litigation. Roo and Oz Sheetmetal have paid the plaintiffs' legal bills. In or about November 2012, Thomas and Roo Sheetmetal retained Arnold Bloch Liebler to replace Lay Lawyers as their solicitors. It was not until Arnold Bloch Liebler sent a letter on 28 November 2012 that Thomas asserted that he was the sole owner of Roo and Oz Sheetmetal.[339]

622 The allegations concerning Triangle Sheetmetal are largely discrete. Francis is the sole director and shareholder of Triangle Sheetmetal. However, he is not registered as the beneficial owner of the shares in Triangle Sheetmetal. As already noted,[340] the plaintiffs had no legal basis to prevent Francis or Triangle Sheetmetal establishing his or its own sheetmetal business.

623 On 5 October 2011, being the date of incorporation of Triangle Sheetmetal, the Triangle Sheetmetal Unit Trust was registered. The Triangle Sheetmetal Unit Trust has 4 unit holders. Thuan Phuoc owns 2 units, Francis (as trustee for the Phan Family Trust) owns 2 units, Hopemaid Pty Ltd (as trustee for the O'Brien Family Trust) owns 1 unit and Wama Pty Ltd and AOB Corporation Pty Ltd (as trustees for the O'Brien Family Trust) own 1 unit. Essentially, Triangle Sheetmetal is equally beneficially owned by 3 interests, those associated with Thuan Phuoc, those associated with Francis and those associated with O'Brien.

624 There are 3 registered shareholders in Thuan Phuoc, namely, Linh, Chinh and Vien. The plaintiffs allege Vien holds a third of the issued shares in Thuan Phuoc on trust for Thomas. According to the particulars in the Statement of Claim, this allegation of Vien holding this proportion of shares is based on a historical extract dated 17 September 2013. The plaintiffs also allege that Chinh holds 24.44 percent of the issued shares in Thuan Phuoc on trust for Thomas. The same historical extract was relied upon. Notwithstanding reliance on the same extract, the allegations concerning Chinh's shareholding were made very late.[341] The remaining shares are held by Linh. There is no suggestion that those shares are held on behalf of anyone other than interests associated with Linh.

625 No party relied on any business records of Thuan Phuoc recording the shareholdings in question. Further, although referred to in the pleadings, no documents were tendered as to the registered position with respect to the shareholdings.

626 Linh gave evidence that, in 2014, Vien's shareholding was reduced from 33 percent to 7 percent. Although there was no documentation to support this evidence, it went in without objection and was not the subject of cross-examination.

627 The case put by the plaintiffs is that Thomas has a financial interest in the business of Triangle Sheetmetal through an alleged beneficial ownership of shares in Thuan Phuoc. Accordingly, establishing the ownership of shares in Thuan Phuoc is the cornerstone of the allegations concerning any interest in Triangle Sheetmetal.

628 In addition to alleging that Thomas had a financial interest in Triangle Sheetmetal, the plaintiffs allege that Triangle Sheetmetal's business in Queensland was an opportunity that belonged to Roo and Oz Sheetmetal. It is further alleged that Thomas did not obtain the consent of any of the plaintiffs to hold a financial interest in Triangle Sheetmetal or contribute funds for its establishment.

629 Based on the matters set out in paragraphs 627 to 628 above, it is alleged Thomas breached his fiduciary duties to "the plaintiffs" and that such a breach constituted a fraudulent and dishonest design on the part of Thomas.

630 After pleading that Thomas' breaches of fiduciary duties caused the plaintiffs to suffer loss and damage, it is alleged that Triangle Sheetmetal had knowledge of Thomas' breaches.[342] Finally, it is alleged that Triangle Sheetmetal knowingly assisted Thomas in the breach of his fiduciary duties and that such conduct has caused the plaintiffs loss and damage.

O.3 The plaintiffs have not established Thomas beneficially owned or owns any shares in Thuan Phuoc

631 Vien said he signed documentation in February 2004 to become a registered shareholder in Thuan Phuoc. He said those documents were submitted to the investment board of the City of Da Nang, Vietnam. He could not recall whether he signed those documents in the presence of Linh, but Vien said Linh was "also in the documents". Before this occurred, Vien had moved to Da Nang to work with Linh at the request of Thomas.

632 According to Vien, shortly after arriving in Da Nang, Thomas spoke to him on the phone and asked if Vien would agree to be listed as a registered shareholder in Thuan Phuoc on Thomas' behalf. Vien gave evidence that Thomas said Thomas would own "the shares". There was no evidence that the number of shares was ever discussed between Vien and Thomas.[343] Thomas denied this conversation occurred. Although the precise timing was unclear, Vien was also told by Thomas that Thomas was assisting Linh to set up a duct manufacturing business in Vietnam.

633 With respect to the plaintiffs' allegation that Vien held shares in Thuan Phuoc on behalf of Thomas, the entire case is based upon this alleged telephone conversation in early 2004. There was no other direct evidence of ownership given by Vien (or anyone else) to support the case that Thomas was the beneficial owner of the shares held by Vien in Thuan Phuoc.

634 In addition to Thomas' denial, the evidence of Linh was that Thomas had no beneficial ownership in the shares held by Vien. Linh was responsible for arranging the registration of shares held by Vien in Thuan Phuoc. After Linh had organised for Vien to live in the factory run by Thuan Phuoc, he attended to the necessary paperwork concerning the shareholding in Thuan Phuoc. According to Vien, Linh did the paperwork because he knew it well. Further, when it was put to Vien that Thomas would give evidence that he has no interest in the company, Vien responded "as far as finances of the company [are] concerned, I'm not very knowledgeable about [them]". Accordingly, Vien's evidence was incapable of shedding any light on the issue of ownership beyond his alleged telephone conversation with Thomas in early 2004.

635 It was common ground that Vien held 50 percent of the shares in Xuyen Viet, which shares he held on trust for Thomas. Thomas asked Vien to become a shareholder in Xuyen Viet on this basis in 2006. No claim is made by the plaintiffs in relation to this arrangement.[344]

636 During the course of his evidence, Linh described himself as the true owner of Thuan Phuoc. He said the other 2 registered shareholders, Chinh and Vien held those shares on trust for him. I infer from the absence of any documents being put before the court that the arrangements concerning the beneficial ownership were oral and nothing is recorded in writing.

637 Linh gave extensive evidence of his relationship with Thomas. Thomas has helped Linh financially over the years. Linh has also held land in Vietnam in his name for Thomas.

638 In 1998 or 1999, Linh sought Thomas' advice with respect to setting up a sheetmetal duct business in Vietnam. He also asked Thomas to join the business. Thomas declined, but in so doing said he would help Linh in any way that he could.

639 Between approximately 2002 and 2005, Thomas purchased 6 blocks of land in Da Nang City. The land was registered in Linh's name as, according to Linh's evidence, foreign citizens cannot purchase property in Vietnam. When Thuan Phuoc was first established, Linh asked Thomas to "lend" him his blocks of land and Thomas agreed. Linh said, to date, no payment has been made by Thuan Phuoc or Linh for the use of Thomas' land.[345]

640 At the end of 2003, Linh began building a factory on a block of Thomas' land. He invested his family's life savings in doing so. At around this time, Thomas introduced Linh to Vien over the telephone. Linh had met Vien once before.

641 Vien only had a contract of employment until the end of 2003. Linh agreed to allow Vien to be a registered shareholder of Thuan Phuoc because Vien was Thomas' relative, and he trusted and wanted to thank Thomas for supporting him. In addition, Vien had airconditioning duct expertise, which Linh needed.

642 On 17 February 2004, Thuan Phuoc was registered by Linh. Linh chose the name. "Thuan" means "advantage" and "Phuoc" means "charity". Linh had previously told Thomas that his goal was to establish a profitable business so he could make money and also help the handicapped and the poor. No doubt such charitable intentions on the part of Linh added to Thomas' desire to help.

643 As to the establishment of Thuan Phuoc, Linh gave the following evidence:

In order to set up a business in Vietnam, there needs to be 2 registered members, who are both Vietnamese citizens. When Thuan Phuoc was registered, Vien and I were listed as the shareholders. Vien did not contribute any capital to the business and he did not, and does not, own any part of the business.

This evidence was led by the defendants without objection.[346] Linh's position was that at all times Thuan Phuoc was wholly owned by him.[347]

644 Thuan Phuoc started manufacturing in 2004. Consistent with Thomas' earlier promises, he sent secondhand machinery from Australia in around 2005. Thomas also gave advice on the reconditioning of such machinery. Thomas sought no payment in return for these deeds. Thomas visited the factory from time to time when he travelled to Vietnam.[348] Although Thomas was motivated to assist Linh, this conduct may not have been entirely selfless. Thomas acknowledged a reason for assisting Linh was that it might have enabled Thuan Phuoc to provide services to Roo Sheetmetal in the future.

645 Initially, Thuan Phuoc was not profitable. As a result, Linh also established an internet shop on the same land. That shop remained in operation until around 2007.

646 At the end of 2005, Thomas contacted Linh and said he wanted to establish a sheetmetal business in Saigon. This was to be run by a different company, Xuyen Viet. Thomas insisted Vien move to Saigon to run the business. Linh agreed because of his respect for Thomas. However, Linh explained in evidence that he chose to keep Vien as a shareholder in Thuan Phuoc in the hope that Vien would return to Thuan Phuoc because, according to Linh, Vien was a very capable person.

647 Under cross-examination, it was put to Linh that Vien remained a shareholder because Vien held his shares on behalf of Thomas. There was no evidence to corroborate this puttage. Linh rejected it.[349] Upon Vien's departure, Linh introduced Chinh to the business. From 2002 to 2006, Chinh and Linh were in business together, operating initially an advertising business, which also later involved printing. They worked in Saigon together in the printing and advertising business until Linh became involved in Thuan Phuoc in 2004. Both of them owned a third of the company that ran that business.[350]

648 When Chinh started at Thuan Phuoc in mid 2006, Linh suggested he receive a salary similar to what he had been previously receiving. Linh also asked Chinh to hold some shares and be a director. Chinh did as Linh directed. According to Linh, the "business culture in Vietnam" required Chinh to be a shareholder so that he would have authority to deal with people outside the business.[351] Linh decided how many shares Chinh would receive.

649 Chinh filled in papers for the purpose of becoming a shareholder and director in Thuan Phuoc. Chinh said the papers were prepared by an accountant. These papers were not produced at trial. Chinh never contributed any capital to the business.

650 After Chinh joined the business, Linh decided to work mainly at the printing and advertising business already established with Chinh. From approximately 2008, he left the conduct of the business of Thuan Phuoc to Chinh and received reports from him from time to time. Linh described Chinh as the current managing director of Thuan Phuoc.

651 Chinh has known Thomas since Chinh was a boy. However, he did not become close to Thomas until 2007, when Chinh visited Thomas in Australia. In contrast, Chinh was close to Linh from a young age. Chinh had been closely supported by Linh in his studies and training.

652 At around the time Linh asked Chinh to be a shareholder in Thuan Phuoc, he told Chinh that Vien was a shareholder in name only. Beyond that, Chinh was not informed by Linh or anyone else as to the basis upon which Vien held shares in Thuan Phuoc.

653 When asked during cross-examination about his shareholding in Thuan Phuoc, Chinh stated he only "stood in name" with respect to that holding. When it was put to him that effectively he had acknowledged, in a conversation with Thuy in 2012, that Thomas would sell his shares in Thuan Phuoc to Chinh, Chinh denied this and said he had been referring to Thomas' shares in Xuyen Viet. When pressed on the issue, Chinh stated that Thuan Phuoc was Linh's company and had nothing to do with Thomas. In seeking to challenge this evidence, it was put to Chinh that Thomas helped set up Thuan Phuoc. In accepting this proposition, Chinh said Thomas had not only helped Linh in this regard, but that Thomas had also helped Chinh's family and a lot of poor people in the surrounding areas. This further evidence was not the subject of any challenge.

654 There is some tension between the case as pleaded by the plaintiffs, namely that since around 2006 Chinh held his shares in Thuan Phuoc on trust for Thomas, and a suggestion that in 2012 Thomas was suggesting to Chinh that Thomas would sell "his shares" in Thuan Phuoc to Chinh. In short, if Chinh already held shares for Thomas from 2006, there would be no occasion for Thomas to be discussing the sale of those shares to Chinh. Of course, it is possible that the subject matter of the conversation was the shares in Thuan Phuoc held by Vien, or the alleged beneficial interest of Thomas in the shares held by Chinh, but there was no suggestion Thomas was being specific in this regard, nor was it put to any witness.

655 In late May 2007, Chinh visited Australia for about 2 months. He worked with Thomas at the factory in Dandenong and stayed with Thomas and his family. Thomas trained Chinh to use the CAMDuct software. Chinh did not tell Thomas he was a shareholder or director in Thuan Phuoc, and Thomas did not raise the matter either.

656 Thomas suggested Chinh should train staff at Thuan Phuoc on how to use the CAMDuct software. Thomas said if this were done, he could outsource some of Roo Sheetmetal's work to Thuan Phuoc.[352] At the end of his 2 month stay with Thomas, Chinh returned to Vietnam. He was soon to be married. By reason of this, Thomas gifted him approximately $5,000. The plaintiffs submitted that Thomas' generosity towards Chinh gave rise to an inference that Chinh had done, or was doing, a favour for Thomas. Such a submission ignores the fact that Thomas often gave to others without expecting something in return.

657 From this time on, Chinh and Thomas remained close and often spoke to each other over the internet. During these discussions, Chinh said there was never any discussion about shareholdings in Thuan Phuoc. In due course, Chinh trained the staff in Vietnam in the CAMDuct software, and Roo Sheetmetal then sent some work to Thuan Phuoc, which increased over time.

658 The CAMDuct software used by Thuan Phuoc was supplied by Thomas. Initially, access was remotely obtained through Thomas' personal computer in Australia. This remote access was very slow. Accordingly, Thuy sent a dongle to Thuan Phuoc with the CAMDuct software uploaded on it. Self-evidently, both Thomas and Thuy were content for Thuan Phuoc to use Roo Sheetmetal's software, including with the assistance of a dongle.

659 Thomas and Thuy dealt with Thuan Phuoc with respect to orders placed by Roo Sheetmetal. Thomas dealt with Chinh with respect to technical matters, and Thuy concerned herself with financial matters. Chinh did not deal directly with Minh, but Minh liaised with Thuan Phuoc staff.[353]

660 In approximately April 2012, Thuy told Chinh that she needed to upgrade the software on the dongle urgently and asked for it to be returned. Chinh then sent the dongle to Thuy, but Thuy never returned it to Thuan Phuoc. Indeed, the next month she contacted Chinh and said that no more work would be sent to Thuan Phuoc. No explanation was given for this decision. There was no suggestion Thomas was involved in making the decision. It resulted in some Thuan Phuoc staff having to be laid off.

661 Around the end of 2011, Thomas suggested to Chinh that he should consider investing in Australia. Thomas said he had a cousin, Francis, who wanted to join with O'Brien in opening up an airconditioning duct business in Queensland. Chinh had previously met Francis, and he already knew O'Brien. Thomas said he thought it would be a good idea for Thuan Phuoc to invest in the business. Thomas told Chinh he should encourage Linh to work with Francis and O'Brien.[354] After this conversation, Chinh raised the matter with Linh who responded favourably to the proposal. The decision of Thuan Phuoc to invest in Triangle Sheetmetal was based on Thomas' recommendation.

662 When Chinh informed Thomas of the decision, Thomas said he was happy with it. Chinh sought Thomas' advice over 4 or so months concerning the investment in Triangle Sheetmetal. In these discussions, Chinh asked whether Thomas would represent Thuan Phuoc at meetings in Australia and also sign the relevant paperwork. Thomas agreed to do so. Again, Chinh did not discuss shareholdings in Thuan Phuoc in any of these conversations with Thomas.

663 Linh directed Chinh to arrange a bank loan in order to enable Thuan Phuoc to invest in Triangle Sheetmetal. Ultimately, Thuan Phuoc invested $125,000. Of this amount, $40,000 was borrowed from an individual and the remainder from a bank.

664 There was no suggestion that Thomas was involved in any of the loans that were entered into. Some moneys have been repaid to the private lender, but the bank loan remains outstanding.

665 At the time of Thuan Phuoc's investment, Linh had never been to Queensland himself. This was the only overseas investment Thuan Phuoc has ever been involved in. According to Linh, the $125,000 was paid to Triangle Sheetmetal "gradually over time". The investment was significant for Thuan Phuoc, representing more than 10 times Thuan Phuoc's annual profit at the time.

666 Consistent with earlier discussions, on 8 October 2011, Chinh had a document prepared authorising Thomas to act on his behalf "in all manners (sic) relating to [Thuan Phuoc] as unit holder of Triangle Sheetmetal Unit Trust, including signing of all documents relating to these matters". The authorisation was said to be valid until 7 October 2018. The letter was prepared on a letterhead which read "Roo Co Thuan Phuoc Co Ltd".[355] Chinh affixed his electronic signature to the letter,[356] and said he did so as Linh had authorised him to work with Triangle Sheetmetal and manage the investment.

667 In fact, apparently 3 days earlier,[357] Thomas had already executed the Triangle Sheetmetal Unit Trust deed on behalf of Thuan Phuoc, purporting to sign as "Director/Secretary". In fact, he held no such office. As Thomas stated in his evidence, the trust deed was signed pursuant to Chinh's request. Thomas said he was signing on behalf of Chinh even though it was not recorded on the document he was signing as an agent.[358] Both Francis and O'Brien were present when Thomas signed.

668 These documents prove that Thomas' involvement in Triangle Sheetmetal was far more than just a passing interest. He clearly wanted to help Thuan Phuoc with its investment in Triangle Sheetmetal, just as he wanted to help Francis. But that does not prove he had any ownership in Thuan Phuoc.

669 Chinh said he arranged the preparation and execution of the document dated 8 October 2011, authorising Thomas to act without Linh's involvement. Indeed, according to Chinh, Linh was not aware of the authority as he was not aware of such matters in which Chinh was involved. Basically, Chinh said that so long as he brought good results to the company that was all that was required by Linh. He said that Linh had complete faith in him and gave him autonomy in deciding matters concerning Thuan Phuoc.

670 Contrary to the plaintiffs' submission, I do not accept that the absence of Linh's involvement strongly suggests that Chinh was acting on behalf of Thomas by reason of Thomas' beneficial ownership of shares in Thuan Phuoc. Both Chinh and Linh had been in business together for many years, and, when Linh (but not Chinh) was involved in Thuan Phuoc, Linh had allowed Chinh to conduct the printing and advertising business in Linh's absence.

671 In further support of the plaintiffs' case that Thomas had a beneficial interest in shares in Thuan Phuoc, they relied upon the evidence of Brown. Brown said he had numerous conversations with Thomas in approximately 2004 in which Thomas told him he had purchased land in Vietnam while working on the merchant boats around Southeast Asia. Thomas said that he was using the land to set up a business that produces sheetmetal ducting. He said he had a plan to make the business a mechanical services company that operated in a similar way to Roo Sheetmetal.

672 Brown also spoke of conversations with Thomas at this time in which he invited Brown to visit Vietnam with him. Thomas suggested Brown should set up a drafting company in Vietnam to export drawing services to Australia. As part of these conversations, Thomas suggested that they visit Da Nang to investigate the possibility of Brown starting up a new business and also to visit "my business".

673 In March 2004, Brown travelled to Vietnam. He was introduced to Linh. In Linh's presence, Thomas told Brown in English that Linh and he were in business together. As to Brown's evidence of the introduction of Linh, Brown could not recall any other aspect of the conversation. Brown seemed to acknowledge that they may not have been the words Thomas used. Brown said that Thomas' English was not as good as his English, and the evidence he had given was "basically what [Thomas] said".

674 The next day they visited a factory on the outskirts of Da Nang. During the course of that visit, Thomas said to Brown that it was "my company". He also informed Brown that in constructing the factory, an old Tao grave had to be removed and blessed. Inside the factory, there was airconditioning equipment that was ready to be installed. Upon viewing this equipment, Thomas asked Brown whether he could draw a plan of the factory so that airconditioning equipment could be installed in the factory. Thomas suggested that the staff working at the factory could watch how Brown did his work and learn from Brown. Brown agreed.

675 Brown completed a plan of the factory, showed the drafting and planning process to a number of employees (including how to use a drafting program, named AutoCAD) and allowed 2 of the employees to trial the program for themselves. The other 2 employees were not interested in doing so. One of the employees in attendance was Vien.

676 In 2005, Brown went back to Da Nang on a family holiday. He took some time out of his holiday to visit the factory that he had previously visited with Thomas in 2004. He spent a few hours there. On this visit, he saw airconditioning ducts being manufactured at the factory.

677 Of course, none of this evidence is proof of the fact that Thomas owned shares in Thuan Phuoc. This evidence was put forward by the plaintiffs as admissions against interest by Thomas. Even if Brown's evidence could amount to an admission as to some form of ownership (which in my view it does not), it cannot establish the existence of any express trust as the plaintiffs allege.

678 There is a paucity of probative evidence about any interest of Thomas in the ownership of Thuan Phuoc. In the context of Thomas taking an active interest for charitable and non-business reasons, I am not satisfied that the language used by Thomas in 2004 (if it was in fact used) amounts to an admission that Thomas was an owner of Thuan Phuoc. In stating this, I also take into account the significant lapse of time and the uncertainty that necessarily comes with any account of oral evidence given so long ago. It is clear that in 2004 Thomas was taking an active interest in Thuan Phuoc, assisting Linh in many ways. Because of this, Thomas may have thought and spoken in terms of things that he had done, and felt some "ownership" of what had been achieved. This, of itself, does not equate to having any actual beneficial ownership.

679 In conclusion, considering the evidence on this topic as a whole, I cannot be satisfied that Thomas ever beneficially owned any shares in Thuan Phuoc. Although there is no proper basis for suggesting that Vien was doing anything other than giving evidence of the facts as he understood them, there must be a substantial risk that his recollection of 1 telephone conversation more than 10 years ago is mistaken. In any event, there is no evidence that any such discussion was actually acted upon when Linh arranged for the legal and beneficial ownership of the shares to be put in place. Linh gave unequivocal evidence that he is the sole beneficial owner of the shares in Thuan Phuoc. There is no reliable evidence before the court to find that Linh's evidence is misplaced.

680 The plaintiffs made a number of submissions as to why the court should find that Vien holds shares in Thuan Phuoc on behalf of Thomas. First, it was submitted Vien does not have an interest in the outcome of the proceeding. In my view, that is overly simplistic. Clearly, Vien is now closely tied to Roo and Oz Sheetmetal. Although I have accepted that Vien expressed his belief as to what occurred, to seek to characterise Vien as an entirely independent witness would be incorrect.

681 Secondly, it was submitted that Linh barely knew Vien in February 2004, so that it was implausible that he would ask Vien to hold any shares in Thuan Phuoc on behalf of Linh. I do not accept this submission. Vien was working with Linh in 2004 at Thomas' suggestion. Linh trusted Thomas. Linh also had exhibited some trust in Vien by agreeing to take him on. There seems no apparent reason why that trust could not extend to allowing Vien to be the legal owner of shares owned beneficially by Linh.

682 Thirdly, the mere fact that Vien holds 50 percent of the shares in Xuyen Viet on trust for Thomas does not necessarily mean that he would have entered into any like arrangement in relation to Thuan Phuoc.

683 Fourthly, the plaintiffs relied upon the fact that Linh changed the legal ownership of the shareholding as between Vien and Chinh. It was suggested that the absence of any explanation for this, when Linh claims he was the beneficial owner of all the shares, was problematic. However, Linh was not asked in cross-examination about this potential issue. It may well be that there was a perfectly plausible explanation which has not been aired.

684 Fifthly, it was submitted that there was a substantial body of evidence establishing close connections between Thomas and Thuan Phuoc which were indicative of an investor relationship with Thuan Phuoc. There is no question that Thomas gave substantial assistance to Thuan Phuoc over an extended period of time. But that was in Thomas' nature. He did such things for many people both in Vietnam and in Australia. There is no suggestion that each time he acted in such a way, he was doing so to take a proprietary interest in, or to get some commercial return from, the beneficiaries of his generosity. Further, Thomas had an interest in Thuan Phuoc being able to provide services to Roo Sheetmetal.[359] His conduct in assisting may be explained as going beyond purely charitable motives without necessarily resulting in a conclusion that Thomas must have had a beneficial interest in Thuan Phuoc.

685 As to Chinh's shareholding in Thuan Phuoc, there is no evidence that a "trust was created orally in a conversation or a series of conversations between Thomas and Chinh" as alleged in the Statement of Claim.[360] Equally, there was simply no substantive basis to infer that any such conversation or conversations took place.

686 Moreover, this aspect of the plaintiffs' case culminates in an allegation that Thomas' involvement with Thuan Phuoc, and in Triangle Sheetmetal through Thuan Phuoc, constituted a fraudulent and dishonest design. The nature of the cause of action, and its seriousness and gravity must be taken into account in determining whether or not the court is satisfied of the plaintiffs' case.[361]

687 The plaintiffs also relied upon the fact that Thomas concealed his involvement with Triangle Sheetmetal. They submitted such conduct suggested Thomas was involved in an investment in that business "via" Thuan Phuoc. I reject this submission. The evidence makes it abundantly clear that Thuy, together with Minh, considered they had the right to decide if, and the extent to which, any of the Family Members were able to assist Francis. Thomas must have known that disclosing his further assistance to Francis with respect to Triangle Sheetmetal would have done nothing but raise the ire of Thuy and Minh, and probably also Joseph.

688 The plaintiffs tendered the telephone bill of Thomas for his mobile phone for the period 21 April 2012 to 21 May 2012. Thuy marked each of the entries that referred to Francis' mobile phone number. The telephone bill indicated that Thomas called Francis in excess of 50 times during this period. However, Thomas was asked no questions at all about the content of any of these calls. Without any further evidence, it is not possible to find how many calls resulted in telephone discussions.[362] In those circumstances, no inference can be properly drawn that these telephone calls somehow established that Thomas had a financial interest in Triangle Sheetmetal. These telephone calls are equally consistent with the fact that Thomas was close to Francis and Thomas was voluntarily assisting Francis with issues concerning the establishment of Triangle Sheetmetal.

689 The plaintiffs also submitted that the manner in which Roo Sheetmetal agreed to pay for work done by Thuan Phuoc suggested Thomas had some ownership of Thuan Phuoc. Thomas gave evidence that he allowed the employees to be paid double their usual rates when doing engineering work for Roo Sheetmetal. The plaintiffs referred to this topic as Thomas' "bizarre evidence regarding his role in determining wages of workers at Thuan Phuoc". This mischaracterises the evidence. Roo Sheetmetal paid Thuan Phuoc, not the employees directly. Thuy attended to this, not Thomas.[363] Further, Thomas told Thuy to try and help the people working at Thuan Phuoc because the wages they earned were very low. The extent to which Thuy acted in accordance with Thomas' wishes was not clear.

690 In short, there is simply no probative evidence that any property, moneys, equipment or other help Thomas may have directed towards Thuan Phuoc was by reason of the fact that he had some beneficial interest in the ownership of that company. Thus, the case against Thomas concerning Triangle Sheetmetal based on ownership of shares in Thuan Phuoc fails at the threshold.

691 There are some further difficulties for the plaintiffs with this aspect of the case. The Family Members knew full well that Francis was setting up business in Queensland through Triangle Sheetmetal, and acquiesced in such conduct.[364] They sold Francis equipment at a substantial discount in order that he could set up his business. They did not know that Thomas had lent Francis $30,000 in order for Francis to be able to purchase the equipment until after the equipment was purchased.[365] But it is difficult to see anything wrong with such a loan when it was Thomas' money, and all the Family Members had decided it was appropriate to sell the equipment to Francis in the circumstances that they did.[366] Further, I am not satisfied that there was ever an intention on the part of Roo Sheetmetal or Roo and Oz Sheetmetal to establish a business in Queensland.[367]

692 Finally on the facts, to the extent the claim is made against Thomas concerning Triangle Sheetmetal, it is also premised on there being 1 company owning the entire business operation in Victoria by reason of the 2009 Agreement. That premise has not been established.[368]

693 In light of these factual findings, it is unnecessary to consider the separate legal issue as to whether, if the plaintiffs had established all the alleged facts, Thomas could be found to have a relevant financial interest in Triangle Sheetmetal by reason of his alleged interest in Thuan Phuoc, and in turn Thuan Phuoc's shareholding in Triangle Sheetmetal.[369]

O.4 Issues concerning a dongle provided by Thomas to Francis

694 Further claims were made against Thomas and Triangle Sheetmetal concerning the provision by Thomas of a computer dongle to Francis.[370] Thomas said he sent a dongle to Francis so that Francis could test Triangle Sheetmetal's machines (Submissions 284). The precise time at which this occurred was not clear, but it was likely to have been in late 2011 or early 2012.

695 Dongles were used by Roo Sheetmetal and Oz Sheetmetal (including when it became Roo and Oz Sheetmetal) for fabrication software used to control the production line of duct work. The software was also used for airconditioning ducts. The software was the subject of licences granted from time to time. Up until July 2009, all licences were held by Roo Sheetmetal. As between Roo Sheetmetal and Oz Sheetmetal, Roo Sheetmetal would then issue an invoice to Oz Sheetmetal for Oz Sheetmetal to pay its part of the licence fee.[371]

696 The plaintiffs allege that, in early 2012, Thomas gave a dongle to Triangle Sheetmetal for the purpose of assisting Triangle Sheetmetal to establish its business as a manufacturer of airconditioning ducts. They allege the dongle was "owned" by Roo and Oz Sheetmetal.[372]

697 Further, it is alleged that, on 18 April 2012, Triangle Sheetmetal dishonestly applied, under Thomas' name, for a renewal of the licence to use "the computer dongle" as though the application was from Roo and Oz Sheetmetal, alternatively Roo Sheetmetal.

698 It is further alleged that by providing the dongle to Triangle Sheetmetal without the plaintiffs' consent, Thomas breached his fiduciary duties allegedly owed to the plaintiffs. Moreover, it is said that the breach of these fiduciary duties constituted a fraudulent and dishonest design, causing loss and damage to the plaintiffs. Finally, it is alleged that Triangle Sheetmetal knowingly assisted Thomas in his breach of fiduciary duties, such conduct also causing loss to the plaintiffs.

699 There are numerous difficulties with the plaintiffs' case based upon Thomas providing a computer dongle to Francis in early 2012.

700 First, the Statement of Claim does not identify the specific computer dongle supplied, notwithstanding that each computer dongle has an identification number.[373] Secondly, Roo and Oz Sheetmetal has failed to establish that it owned or had rights to the computer dongle in question. If the dongle were the subject of a licence held by Roo and Oz Sheetmetal, it could be expected that the licence document would have been produced. There was no proper documentary evidence establishing any rights of Roo and Oz Sheetmetal to any dongle provided to Francis. Thirdly, the evidence that is available strongly suggests that the dongle in question was dongle number 7075, which was replaced by dongle 53044.[374] The only records before the court with respect to these dongles indicate that dongle 7075 was licensed to Roo Sheetmetal.[375] Fourthly, to a large extent, the case of the plaintiffs is dependent upon them establishing the existence of the 2009 Agreement.[376]

701 To elaborate on the matters set out immediately above, an invoice issued 27 January 2005 by the licensor recorded that 3 dongles, including dongle 7075, were licensed to Roo Sheetmetal. That invoice contains Thuy's handwriting suggesting the invoice was paid on 1 June 2005. Thuy also noted that the amount of $11,726.13 (which appears to be an amount for this invoice and other invoices), when divided by 3, equated to $3,908.66.

702 On 1 June 2005, Thuy prepared a Roo Sheetmetal invoice directed to Oz Sheetmetal to "supply to Oz Sheetmetal 1 dongle as discussed" in the amount of $3,908.66. Which dongle was supplied was not identified. Further, there was no suggestion on the documentation that there had been any variation of the licence agreement with the licensor.

703 There were tendered various other invoices up to 1 July 2009 evidencing further licence agreements, between Roo Sheetmetal and the licensor. None of these invoices identified dongle 7075, or the alleged replacement 53044.

704 Minh gave evidence that, on or after 1 July 2009, the computer dongles were transferred to the name of Roo and Oz Sheetmetal. There was no documentation to support this assertion.[377] I infer that this evidence was given on the basis that the plaintiffs alleged that all assets of Roo Sheetmetal were transferred to Roo and Oz Sheetmetal on 1 July 2009 pursuant to the 2009 Agreement.

705 On 9 August 2010, an invoice was issued to Roo and Oz Sheetmetal by a company that had not previously provided the software. Minh explained it was "the new company that supplied the software for CAMDuct".[378] Minh was unsure about precisely what the invoice was for. He said as far as he knew, the invoice was about upgrading the software. The invoice made no reference to any dongle or dongles. There was no suggestion there were any replacement licence agreements in substitution of those previously issued in favour of Roo Sheetmetal.

706 On or about 18 April 2012, it appears Francis prepared an order for a renewal of the right to use a dongle.[379] The order was purported to be signed by Thomas, however it was not his signature that was affixed. When taken to the signature, Thomas explained that he had given permission to Francis to sign his name as if it were his signature. The order made reference to dongle 53044.

707 On 4 May 2012, the supplier of the software sent an email to Thuy with the subject "Francis Phan". That email recorded as follows:

We received an order from [Francis] on the 18th April 2012 for a CAMDuct renewal on dongle 7075 which we have replaced with dongle 53044 (Order attached) we shipped the software out on the 26th April. We had an email from yourself on the 1st May advising us that [Francis] was no longer working within your company; we received an email from Francis this morning advising us that he has not yet received his new software as yet? We sent the dongle to the following address:

76-78 Rodeo Drive, Dandenong Vic. Australia 3175.

Please can you clarify if you have received a package from UPS as the signature on the delivery note is illegible?

I look forward to hearing from you.

708 On 30 May 2012, Minh, Thuy, Son and Joseph sent a letter on Roo and Oz Sheetmetal letterhead to O'Brien and Francis. That letter demanded return of the dongle by 12 June 2012. The letter said the dongle belonged to Roo and Oz Sheetmetal, and had been registered under that name, but it did not identify the dongle in question. The letter made certain accusations regarding Francis and his signing, using Thomas' name and "our company name", and threatened further action if the dongle was not returned.

709 There is no evidence to suggest that the dongle was ever returned directly by Francis or Triangle Sheetmetal. Minh gave unchallenged evidence that Thomas returned the dongle. Without identifying which dongle, Thomas said the dongle was given back to him in 2012, but he could not remember how it happened.

710 The plaintiffs sought to establish that Roo and Oz Sheetmetal owned the dongle in question by various pieces of circumstantial evidence. They referred to the fact that Roo and Oz Sheetmetal was referred to in the order prepared on 18 April 2012. Although the order referred to Roo and Oz Sheetmetal, it also specifically referred to Roo Sheetmetal as the company on whose behalf Francis was signing. In short, the document is inconclusive. In any event, the document appears to evidence Francis falsely representing to be Thomas. That cannot sensibly be put forward as a means to establish that Roo and Oz Sheetmetal had rights in the dongle in question.

711 Next, the plaintiffs sought to rely upon the fact that the email sent on 4 May 2012 had an attachment which was described as "Roo and Oz Sheet Metal (sic) Pty Ltd Signed Order v1.pdf". They suggested that this, combined with the fact that Thuy was contacted on her Roo and Oz Sheetmetal email account, was consistent with the dongle being registered to Roo and Oz Sheetmetal. These facts take the plaintiffs' case no further. The description of the attachment only reflects what Francis had stated it to be. Further, the use of Thuy's Roo and Oz Sheetmetal email address does not establish ownership of the dongle. There was no suggestion that Thuy had any other email address at the time. By 2012, Minh and Thuy had changed the names of the businesses previously conducted separately by Roo Sheetmetal and Oz Sheetmetal to Roo and Oz Sheetmetal.

712 Next, the plaintiffs referred to the meeting held on 6 May 2012.[380] It was submitted that Thomas accepting that he helped Francis with the dongle and later saying that Francis would send the dongle to Minh after Minh had asserted registration by Roo and Oz Sheetmetal, amounted to a concession as to ownership. Any alleged concession does not, in fact, establish or change the ownership or rights held with respect to the relevant dongle. In any event, in the same meeting, Thomas stated clearly that the dongle belonged to Roo Sheetmetal,[381] and not Roo and Oz Sheetmetal.[382]

713 Finally, it was submitted that Thomas would not have lied about the dongle and kept secret the fact that he had provided it to Francis if the dongle belonged to Roo Sheetmetal. This submission completely ignores the environment Thomas was in. In 2012, Thuy, supported by at least Minh and Joseph, was seeking to control what Thomas could or could not do outside the business being conducted by Roo and Oz Sheetmetal. It was plain that, regardless of who owned the dongle, Thuy was not going to agree to it being provided to Francis. This is likely to be the reason Thomas kept his assistance to Francis to himself.[383]

714 Based on the pleadings, the parties agreed on a number of questions for the court to determine. Some of those questions have already been answered. To the extent that there are questions that remain outstanding or it is convenient to identify them distinctly, they are set out below.

P.1 Did the subject matter of the 2009 Agreement encompass any of the matters alleged at paragraph 20(a) to (c) of the Statement of Claim?

715 The plaintiffs have failed to establish any concluded agreement was entered into in 2009. However, the evidence does show there was an intention to merge the businesses of Roo Sheetmetal and Oz Sheetmetal, and that, following any such merger, each of the Family Members would own an equal share in the merged business. To this limited extent, such an intention aligns with the pleaded allegations in paragraph 20(a) and (b) of the Statement of Claim.[384] But this intention never formed part of anything more than a proposal or, at its highest, a conditional agreement which was subject to various matters, including valuations and taxation advice being obtained,[385] together with the further agreement of the Family Members once these matters were attended to.[386]

716 For the reasons stated,[387] there was never any concluded agreement in accordance with the allegations in paragraph 20(c) of the Statement of Claim.[388]

P.2 If the 2009 Agreement was entered into, did the 2009 Agreement end by reason of the matters alleged in paragraphs, 21, 25(c), 25(d), 25(f), and 25(g) of the Defence and Counterclaim?

717 Strictly speaking, it is not necessary to answer this question as I have found the 2009 Agreement was not entered into. Briefly, I will address the issues raised in case I am incorrect about that finding.

718 Paragraph 21 of the Defence and Counterclaim alleged that no agreement was ever concluded pursuant to which any person committed to attending to the matters referred to in paragraph 20(c)(i)-(iv) of the Statement of Claim.[389] I agree. It is entirely consistent with the findings above.[390]

719 Paragraph 25(c) of the Defence and Counterclaim alleged that, in failing to obtain valuations for each of businesses conducted by Roo Sheetmetal and Oz Sheetmetal, each of Thuy and Minh acted in breach of the alleged 2009 Agreement and, furthermore, made it impossible to complete that agreement.

720 If, contrary to the findings above, the 2009 Agreement was reached as alleged, then Thuy and Minh plainly acted in breach of any such agreement.[391] As was stated in Mackay v Dick:[392]

[A]s a general rule, ... where in a written contract it appears that both parties have agreed that something shall be done, which cannot effectually be done unless both concur in doing it, the construction of the contract is that each agrees to do all that is necessary to be done on [her or his] part for the carrying out of that thing, though there may be no express words to that effect.[393]

The general rule applies to every contract where a party agrees to do all things necessary to enable the other party to have the benefit of the contract.[394]

721 I have found that Thuy and Minh deliberately chose not to take the required steps to put in place a concluded agreement.[395] If, in fact, a concluded agreement was in place, Thuy and Minh breached that agreement by not taking the required steps in accordance with the contract.

722 I do not propose to address the further issue of whether or not it was impossible to complete the 2009 Agreement by reason of Minh and Thuy's inactivity. There was a dearth of evidence on this issue. In any event, such an exercise would be entirely arid where I have found that there was an election not to perform the 2009 Agreement.[396]

723 By paragraph 25(d) of the Defence and Counterclaim, it is alleged that each of Minh, Thuy, Joseph and Son elected not to pursue the restructure of the ownership of Roo Sheetmetal and Oz Sheetmetal by reason of the failure to take the steps as pleaded in paragraph 20(c) of the Statement of Claim.

724 When the trial commenced, it was approximately 5½ years from the time of the 2009 Agreement as alleged. Integral steps, such as obtaining taxation and valuation advice, still had not been taken. The fact that no valuation had been obtained was communicated to the defendants in 2014.[397] This delay, coupled with the deliberate decision not to take the necessary steps,[398] demonstrates that an election was made (by 2014 at the latest, but probably well before then) not to pursue the restructure or, at the very least, to pursue a means of restructure substantially different to the alleged agreement.[399] Either way, such an election precludes the plaintiffs from enforcing the 2009 Agreement.[400]

725 Paragraph 25(f) of the Defence and Counterclaim alleged that, by reason of the election referred to above, it would be inequitable for it to be asserted against Thomas that his entitlement to 20 percent of the shares in Roo and Oz Sheetmetal. Wrapped up in this allegation was a series of other allegations in the Defence and Counterclaim. Those allegations included allegations to the effect that Oz Sheetmetal was a subsidiary of Roo Sheetmetal and an integral part of the business of Roo Sheetmetal.[401] Given the remoteness of these allegations to the facts as found, there is little utility in pursuing this entirely hypothetical scenario. Further, in determining whether a result would be inequitable, the court is required to consider all the relevant circumstances. Therefore, it would be inappropriate to seek to express any view when so many of the facts as alleged by the defendants have not been established.

726 By paragraph 25(g) of the Defence and Counterclaim, it is alleged that the exclusion of Thomas from Roo and Oz Sheetmetal by Minh, Thuy, Joseph and Son results in it being inequitable for each of them to now assert Thomas has an entitlement to 20 percent of the shares in Oz Sheetmetal.

727 This allegation was put squarely on the basis that the plaintiffs had been otherwise successful in establishing that each of the Family Members is entitled to 20 percent of the shares in Roo and Oz Sheetmetal. For the reasons given in paragraph 725 above, it is inappropriate to consider this matter further.

P.3 If the 2009 Agreement was entered into and an express trust was created as alleged by the plaintiffs, did those trusts end by reason of the matters alleged in paragraphs 20C, 20D, 21, 25(c), 25(d), 25(f), 26B(d), 26B(f), 26BB(g) and 26C of the Defence and Counterclaim?

728 Insofar as this question refers to paragraphs 21, 25(c), 25(d) and 25(f) of the Defence and Counterclaim, the matters stated in paragraphs 718 to 725 are repeated.

729 Again, as the premise of this question has not been established, I will briefly address the further paragraphs of the Defence and Counterclaim, and then only to the extent I consider appropriate.

730 Paragraph 20C of the Defence and Counterclaim alleged that, in the event Thomas held all his shares in Roo Sheetmetal on trust for Oz Sheetmetal by reason of the 2009 Agreement, then by excluding Thomas from the business in 2012 and not taking the necessary steps to put the 2009 Agreement in place, any trust created by the 2009 Agreement was brought to an end on 1 July 2012.

731 Consistent with what is stated above,[402] by not taking the proposed steps, an election was made not to proceed with the 2009 Agreement. The plaintiffs excluding Thomas from the business in 2012, which they clearly did,[403] does not take the matter any further. Beyond this, it is not necessary to address the further issues raised by this paragraph. Nothing depends upon whether or not the 2009 Agreement or any trust was brought to an end on the specific date of 1 July 2012.[404]

732 Paragraph 20D of the Defence and Counterclaim alleged that, on or about 17 August 2012, by the plaintiffs returning to Thomas all the books and records, and responsibility, for Roo Sheetmetal, any trust by which Thomas held the shares in Roo Sheetmetal for Roo and Oz Sheetmetal was brought to an end.

733 The conduct of the plaintiffs in August 2012, by which they provided to Thomas all of the documents referable to Roo Sheetmetal in their possession, pursuant to his demand as the sole director and shareholder of Roo Sheetmetal, was inconsistent with the case they now put. However, beyond noting this inconsistency, I do not propose to comment further.[405]

734 In paragraph 26B(d), it is alleged that Minh and Thuy wrongfully caused the business and assets of Roo Sheetmetal to be taken over by Roo and Oz Sheetmetal for no consideration. As a matter of fact, the business and assets of Roo Sheetmetal were taken over without any consideration being paid to Roo Sheetmetal. However, the premise of the allegation is that each of Minh, Thuy, Son and Joseph were employees of Roo Sheetmetal and that each of Minh and Thuy held the shares in Oz Sheetmetal on trust for Roo Sheetmetal. Accordingly, beyond acknowledging the transfer of the business and assets was orchestrated by Minh and Thuy, and the absence of consideration, the premise for alleging that such a transfer was wrongful has not been established.[406]

735 Paragraph 26B(f) of the Defence and Counterclaim read as follows:

Since approximately July 2012, [Minh and Thuy have] wrongfully excluded [Thomas] from the conduct of the business of Roo Sheetmetal, including any business being conducted by its subsidiary, Oz Sheetmetal, including:

(i) preventing [Thomas] from having access to the factories occupied by Roo Sheetmetal or Roo and Oz Sheetmetal;

(ii) refusing to pay [Thomas] any salary or dividends;

(iii) cancelling [Thomas]'s "company credit card"; and

(iv) demanding the return of "company vehicles".

736 As to the 4 specific matters the subject of complaint in paragraph 26B(f), each of those matters is established by the facts as found. Thomas was prevented from having access to the factories;[407] save for 4 weeks' salary paid in July 2012,[408] from July 2012 Thomas was not paid any salary or dividends;[409] and Thomas' vehicle was the subject of demand for return.[410] Further, it was expressly stated by the plaintiffs that Thomas could only use his credit card (for petrol only) until 31 July 2012.[411]

737 Beyond noting that these specific allegations are made out, the defendants have otherwise failed to establish the facts upon which they allege the conduct was wrongful for the same reasons set out in paragraph 734 above.

738 Also on the same basis as set out in paragraph 734 above, it was alleged in paragraph 26BB(g) that Minh and Thuy had unfairly, and without authority, diverted business and revenue from Roo Sheetmetal to Oz Sheetmetal, including in the amount of at least $6.7 million as at 30 June 2009.

739 It is correct that business and revenue of Roo Sheetmetal was diverted to Oz Sheetmetal and that there was no concluded agreement as pleaded, pursuant to which that occurred. However, it is not entirely accurate to allege that this was done without Thomas' authority. Thomas' evidence was that he knew of the proposal for a merger and he told Thuy to do whatever she wanted to do.[412] To that extent, authority was given by Thomas. In any event, again the underlying premise for the allegations has not been established.

740 By paragraph 26C of the Defence and Counterclaim, it is alleged that, since about 2011, Minh and Thuy have continuously, and without objective foundation, alleged that Thomas has an interest in Triangle Sheetmetal. It is correct that Minh and Thuy have maintained such allegations since at least the first half of 2012. Whilst Thomas clearly took an interest in the establishment of Triangle Sheetmetal, assisting Francis in that regard and also agreeing to perform tasks on behalf of Thuan Phuoc, it has not been established by the plaintiffs that Thomas ever held any beneficial or financial interest in any of the shares in Triangle Sheetmetal.[413]

741 The fact that Minh and Thuy incorrectly alleged the nature of Thomas' involvement in Triangle Sheetmetal does not appear to provide a basis for any substantive relief.

P.4 Were Minh, Thuy, Joseph, Son, and Thomas in the period 4 May 2009 to 1 July 2012:

(1) Associated with 1 another for a common end?

(2) In a commercial relationship based on mutual trust and confidence?

(3) Carrying on the business of Roo and Oz Sheetmetal for their joint advantage only?

742 In the Statement of Claim, these allegations as to the relationship between the Family Members is premised on the existence of the 2002 Agreement, the 2003 Agreement and the 2009 Agreement. Accordingly, as any positive answer is premised upon the 2009 Agreement having been reached, each of the questions in subparagraphs (1), (2) and (3) must be answered in the negative.

P.5 Are each of Minh, Thuy, Joseph, Son and Thomas beneficially entitled to 20 percent of the issued shares in Roo and Oz Sheetmetal?

743 No. See paragraphs 444 to 526 above.

P.6 Is Roo and Oz Sheetmetal beneficially entitled to all of the shares in Roo Sheetmetal?

744 No. See paragraphs 444 to 526 above.

(1) Did each of Minh, Thuy, Joseph, Son and Thomas determine that, from 1 July 2009, Roo and Oz Sheetmetal as the beneficial owner of Roo Sheetmetal would be the vehicle through which their joint endeavour would carry on business?

(2) If so, did such determination end by reason of the matters alleged in paragraphs 20C, 21, 25(c), 25(d), 25(f), 26B(d), 26B(f), 26BB(g) and 26C of the Defence and Counterclaim?

745 As to the first question, the answer is no by reference to paragraphs 444 to 526 above. Although the evidence does establish the Family Members did "determine" that things ought to be put in place to allow Roo and Oz Sheetmetal alone to conduct the business, the pleaded case has not been established with respect to the 2009 Agreement. It was made clear to the parties that the case would be determined on the pleadings. It would be inappropriate and inherently unfair to answer this question outside the contex[414]f the pleaded case.414 As to the second question, it does not arise, but see paragraphs 718 to 740 above.

(1) Did Thomas owe to each of Minh, Thuy, Joseph, Son, and Roo and Oz Sheetmetal, the fiduciary duties alleged at:

(a) Paragraph 26(c) to (e) of the Statement of Claim?

(b) Paragraph 26A(a) and (b) of the Statement of Claim?

(2) If yes to question (1) above, were those duties brought to an end by reason of the matter alleged in paragraphs 20C, 21, 25(c), 25(d), 25(f), 26B(d), 26B(f), 26BB(g) and 26C of the Defence and Counterclaim?

746 As the plaintiffs acknowledged in their closing submissions,[415] the allegations concerning fiduciary duties and breaches of such duties largely rise or fall depending on the resolution of the ownership issues said to arise from the 2009 Agreement. Undoubtedly, fiduciary relationships may well have existed by reason of the 2002 Agreement and the 2003 Agreement. However, no case was put alleging fiduciary duties, or breach of fiduciary duties, based on the existence of only the 2002 Agreement and the 2003 Agreement. Further, although fiduciary duties may arise and govern relationships between parties even when no final agreement is ever reached,[416] this also was not the basis on which the case was pleaded.

P.9 Does Vien hold 1/3 of the issued shares in Thuan Phuoc on trust for Thomas?

747 The plaintiffs have not established that Vien holds any of the issued shares in Thuan Phuoc on trust for Thomas. See paragraphs 631 to 691 above. Further, the evidence is that Vien no longer holds a third of the issued shares in Thuan Phuoc, but only 7 percent. See par 623 above.

P.10 Does Chinh Cong Tran hold 24.44 percent of the issued shares in Thuan Phuoc on trust for Thomas?

748 The plaintiffs have not established that Chinh holds any of the issued shares in Thuan Phuoc on trust for Thomas. See paragraphs 631 to 691 above.

P.11 Was Triangle Sheetmetal's business in Queensland an opportunity that belonged to Roo and Oz Sheetmetal?

749 No. See paragraphs 135 to 137 and 691 above.

P.12 Was Roo and Oz Sheetmetal the owner of the dongle referred to in paragraph 33 of the Statement of Claim?

750 No. See paragraphs 694 to 713 above.

P.13 Could the conduct alleged in paragraphs 30 to 39 of the Statement of Claim constitute a breach of the fiduciary duties as alleged at paragraph 26A(a) and/or paragraph 26(c) of the Statement of Claim?

751 Paragraphs 30 to 39 of the Statement of Claim made allegations concerning the dongle. It is alleged that in early 2012, Thomas gave a dongle to Triangle Sheetmetal for the purpose of assisting Triangle Sheetmetal to establish its business as a manufacturer of airconditioning ducts. It is further alleged that Triangle Sheetmetal dishonestly applied for a renewal of the licence for the dongle "as though the application was from Roo and Oz Sheetmetal, or alternatively Roo Sheetmetal".

752 The evidence did establish that Thomas provided a dongle to Triangle Sheetmetal, by giving it to Francis, and that there was an attempt to renew the licence for the dongle by someone, likely to be Francis, purporting to make an application either on behalf of Roo and Oz Sheetmetal or on behalf of Roo Sheetmetal.[417] To the extent of Thomas' involvement, it was done without the consent of the other Family Members. However, this aspect of the case must fail for at least 2 reasons. First, Roo and Oz Sheetmetal has not established it was the owner of the dongle.[418] Secondly, the plaintiffs have not established the existence of the 2009 Agreement, upon which the fiduciary duties alleged in paragraph 26A(a) and paragraph 26(c) of the Statement of Claim were alleged.

753 Before leaving the topic of the dongle, it must also be noted that the plaintiffs have not established that any of Thomas' or Francis' alleged conduct concerning the dongle would have caused Roo and Oz Sheetmetal any loss. There was no evidence to suggest that the dongle being in Triangle Sheetmetal's possession for several months in 2012 resulted in any impairment of Roo and Oz Sheetmetal's performance.

P.14 Did Thomas breach the fiduciary duties alleged:

(1) In paragraph 26(c) of the Statement of Claim by reason of the matters alleged at paragraphs 40 to 42 of the Statement of Claim?

(2) In paragraph 26(c) and 26(e) by reason of the matters alleged at paragraph 53 of the Statement of Claim?

(3) In paragraph 26(d) of the Statement of Claim by reason of the matters alleged at paragraphs 55 to 57 of the Statement of Claim?

(4) In paragraph 26(c) of the Statement of Claim by reason of the matters alleged at paragraphs 60 and 61 of the Statement of Claim?

754 The answer to each of subparagraphs (1) to (4) above is that no case has been made out by the plaintiffs. The short point is that the plaintiffs have failed to establish the fiduciary duties as alleged in the Statement of Claim. In these circumstances, I will only briefly discuss the specific allegations.

P.14.1 Thomas' closure of Roo Sheetmetal's term deposit accounts

755 The allegations in paragraphs 40 to 42 of the Statement of Claim concern Thomas's closure of 2 term deposit accounts of Roo Sheetmetal in August 2012.[419] The plaintiffs contend that Thomas breached his duty in so doing because he used the property of "Roo and Oz Sheetmetal and Roo Sheetmetal for a purpose not related to advancing the interests of Roo and Oz Sheetmetal and the [Family Members]". In other words, the claim was made on the basis that the 2009 Agreement is established. Consequently, on the pleaded case, none of the plaintiffs has a basis to make any claims by reason of the closure of, and withdrawal of funds from, the term deposit accounts.

756 Roo Sheetmetal may have a claim with respect to the closure of the term deposit accounts. However, no such claim is made in this proceeding by Roo Sheetmetal, or any person for or on behalf of Roo Sheetmetal (as opposed to Roo and Oz Sheetmetal).[420]

P.14.2 Alleged failure of Thomas to transfer shares in Roo Sheetmetal

757 Pursuant to the 2009 Agreement as pleaded, the plaintiffs allege that Roo and Oz Sheetmetal is beneficially entitled to all the shares in Roo Sheetmetal. Further, it is alleged that Thomas has an obligation to transfer the shares held by him in Roo Sheetmetal to Roo and Oz Sheetmetal. On the findings concerning the 2009 Agreement,[421] this claim must fail. (There is no allegation concerning the transfer of shares in Roo Sheetmetal based on the 2002 Agreement. On the pleaded case, Thomas was entitled to remain the legal owner of the shares in Roo Sheetmetal.)

P.14.3 Thomas' handling of delivery of machines

758 In paragraphs 55 to 57 of the Statement of Claim, the plaintiffs allege that, in October 2010, a company erroneously delivered to Roo and Oz Sheetmetal different models of machines to those which had been ordered. It is further alleged that Thomas "influenced" or had been "involved in" the decision made by the supplier to replace only some and not all of the machines with the correct model. In the Defence and Counterclaim, each of the above matters is admitted.

759 However, despite the factual matters having been established by the plaintiffs based on admissions of the defendants, the plaintiffs have not established a breach of fiduciary duties as alleged. The allegation in paragraph 26(d) of the Statement of Claim, alleging Thomas owed a fiduciary duty not to adversely interfere in the business of Roo and Oz Sheetmetal, is premised upon the establishment of the 2009 Agreement, the existence of which has been found not to exist. Further, the plaintiffs led no evidence to establish that the "influence" or "involvement" of Thomas caused Roo and Oz Sheetmetal any loss.

760 Paragraphs 60 and 61 of the Statement of Claim concern allegations that Thomas intended, without the consent of the plaintiffs, to use the Nerang Property for the purpose of raising funds to meet the costs of this litigation. It is alleged that if Thomas did so, he would be in breach of fiduciary duties owed to the plaintiffs because he would have used property of Roo Sheetmetal for a purpose not related to advancing the interests of Roo and Oz Sheetmetal and the Family Members.

761 Thomas admitted that in or about January 2015, he had raised $362,000, to finance the defendants' case, by using the Nerang Property as security. Accordingly, the underlying facts as pleaded by the plaintiffs have been established.

762 That said, this does not result in any adverse finding against Thomas or Roo Sheetmetal. The fiduciary duties pleaded in paragraph 26(c) of the Statement of Claim are also premised upon the plaintiffs having proved the existence of the 2009 Agreement. On the pleaded case, there is no occasion to consider whether, on the above facts, Thomas breached any duty to Roo Sheetmetal.

(a) Any of Minh, Thuy, Son and/or Joseph owe Roo Sheetmetal any of the fiduciary duties alleged at paragraph 9(c)(xii)(A) to (C) of the Defence and Counterclaim?

(b) Thuy owe Thomas the fiduciary duties alleged at paragraph 25B of the Defence and Counterclaim?

(c) Minh and/or Thuy owe Roo Sheetmetal the fiduciary duty alleged at paragraph 26AA(b) of the Defence and Counterclaim?

(2) If yes to question (1) above, did Minh and/or Thuy breach the fiduciary duty alleged at paragraph 9(c)(xii)(A) of the Defence and Counterclaim as alleged at paragraph 23B(b) of the Defence and Counterclaim?

(3) If yes to question (2) above, did Minh and/or Thuy breach that fiduciary duty by reason of the conduct alleged in paragraphs 26 and 26BB of the Defence and Counterclaim?

(4) If so, has Thomas waived or otherwise acquiesced in respect of any rights he has concerning the breach of fiduciary duty alleged at paragraph 23B(b) of the Defence and Counterclaim as alleged at paragraph 35(c) of the Reply and Defence to Counterclaim?

P.15.1 Fiduciary duties alleged to be owed to Roo Sheetmetal

763 The allegations contained in paragraph 9(c)(xii) of the Defence and Counterclaim form part of a series of allegations, including that:

(1) Thuy, Joseph and Son were mere employees of Roo Sheetmetal and had only been offered the possibility of an equity share in the future.

(2) In or about June 2002, Roo Sheetmetal employed Thuy (who was educated to 8th grade standard and had no training or experience in accounting or administration) as Roo Sheetmetal's financial controller to manage the financial, accounting and other administrative aspects of the business.

(3) Thomas relied on Thuy to manage the financial, accounting and other administrative aspects of the business of Roo Sheetmetal "in accordance with [Thomas]'s directions".

(4) By reason of the trust and confidence Thomas had reposed in Thuy, Thomas regularly thereafter signed banking documents, legal documents and company correspondence presented to him by Thuy without reading them and otherwise left all financial, accounting and other administrative aspects of Roo Sheetmetal's business to Thuy.

(5) "In the premises",[422] Thuy was appointed Roo Sheetmetal's financial controller in or about June 2002.

(6) In or about early 2003, at Thuy's request, Thomas agreed to employ Minh to work for Roo Sheetmetal on its production line.

On the basis of these allegations, it was alleged further that "as employees of Roo Sheetmetal" Minh, Thuy, Son and Joseph were in a fiduciary relationship with Roo Sheetmetal and owed fiduciary duties to Roo Sheetmetal as identified in the Defence and Counterclaim.

764 The "premises" alleged by the defendants have not been established. This aspect of the defendants' case was put on the basis that Thomas alone was in charge and that each of the Family Members other than Thomas was no more than an employee. From 1 July 2002, Thomas was not solely in charge. With respect to Roo Sheetmetal, each of Thomas, Thuy, Son and Joseph, as equal owners, had responsibility for the conduct of Roo Sheetmetal's business. In addition, after March 2004 (at the latest), Minh was not an employee of Roo Sheetmetal at all. Also, after 1 July 2002, Thuy could never have been considered to be an employee of Roo Sheetmetal;[423] she never drew a salary from Roo Sheetmetal,[424] and only Oz Sheetmetal paid her a wage, starting in the 2005 financial year.[425] Accordingly, there is no occasion to consider the fiduciary duties as alleged, or whether they might have been breached.

765 Paragraph 25B of the Defence and Counterclaim alleged "by reason of the matters set out in paragraph 9(b)(viii) above", Thuy owed obligations to Thomas as a fiduciary. Assuming the reference to paragraph 9(b)(viii) should be a reference to paragraph 9(c)(viii),[426] the allegations in paragraph 25B rely upon "the premises" alleged, as set out in paragraph 763(5) above. Accordingly, the allegations in paragraph 25B do not arise.

766 Equally, the allegations made in paragraph 26AA(a) of the Defence and Counterclaim referred to and relied upon the "fiduciary obligations as employees of Roo Sheetmetal", in substance as set out in paragraph 763 above. Further, paragraph 26AA(b) alleged each of Minh and Thuy held the shares in Oz Sheetmetal on trust for Roo Sheetmetal. As none of these factual matters have been established by the defendants, there is no occasion to consider the alleged fiduciary obligations contained in that paragraph.

P.15.2 Further allegations concerning alleged fiduciary duties owed to Roo Sheetmetal

767 As the questions in P.15(1) have all been answered in the negative, there is no occasion to answer any of the questions in P.15(2), (3) or (4).

P.16 Did Minh and Thuy cause the assets and business to be removed from Roo Sheetmetal to Oz Sheetmetal for no consideration as alleged in paragraphs 26B(a)-(d), (g)-(h) and 26BB(a)-(g) of the Defence and Counterclaim?

768 The defendants chose to address this question in a global fashion, rather than make submissions on each paragraph of the Defence and Counterclaim individually. It was submitted by the defendants the question should be answered affirmatively "for the reasons set out in paragraphs 296 to 360" of the written closing submissions. No attempt was made to refer the submissions back to the separate subparagraphs of the Defence and Counterclaim.

P.16.1 Paragraph 26B of the Defence and Counterclaim

769 Paragraph 26B(a) of the Defence and Counterclaim alleged that Minh and Thuy sought to conduct the affairs of Oz Sheetmetal as if it was not a subsidiary of Roo Sheetmetal and an integral part of the business of Roo Sheetmetal. As a matter of fact, there was no dispute that the affairs of Oz Sheetmetal were not conducted by Minh and Thuy as a subsidiary. However, as it has been found that Oz Sheetmetal was not a subsidiary of Roo Sheetmetal and that Oz Sheetmetal was properly conducted as a separate business from Roo Sheetmetal, no legitimate complaint may be made by the defendants in this regard.

770 Paragraph 26B(b) alleged Minh and Thuy wrongfully changed the name of Oz Sheetmetal to "Roo and Oz Sheetmetal" to enable Oz Sheetmetal to take for its own benefit the value of goodwill built up by Roo Sheetmetal in its name. The fact that Oz Sheetmetal's name was to be changed to Roo and Oz Sheetmetal was something of which Thomas was fully aware and had, together with the other Family Members, expressly agreed to before it occurred.[427] Further, Thomas knew this was part of the proposed "merger" process that he had also condoned.[428] This process was openly discussed, though never went beyond being a proposal, or, at most, a conditional agreement.[429] Accordingly, the conjunctive allegations in paragraph 26B(b) have not been made out.

771 Paragraph 26B(c) alleged that Minh and Thuy wrongfully caused at least $1.1 million of Roo Sheetmetal's money to be made available to Oz Sheetmetal and "treated that money as belonging to Oz Sheetmetal". The defendants submitted Roo and Oz Sheetmetal purported to take ownership of the funds upon the transfer of each tranche, without acknowledging any obligation to account to Roo Sheetmetal. There was no dispute that $1.1 million was transferred by Thuy from Roo Sheetmetal's bank account to the new bank account in the name of Roo and Oz Sheetmetal.[430] However, those moneys were treated as loan funds: see paragraphs 784 to 792 below. Accordingly, the allegation that the funds were treated as money belonging to Oz Sheetmetal has not been established.

772 Paragraph 26B(d) alleged Minh and Thuy wrongfully caused the business and assets of Roo Sheetmetal to be taken over by Roo and Oz Sheetmetal for no consideration. This issue is addressed in paragraphs 793 to 795 below. In short, Minh and Thuy caused most of the business and assets of Roo Sheetmetal to be moved to Oz Sheetmetal as if an agreement as pleaded had been reached for that to occur. There was no such agreement. Further, the moving of the assets occurr[431]for no consideration.431

773 Paragraph 26B(g) of the Defence and Counterclaim concerned moneys advanced from Oz Sheetmetal to PN & Nominees as trustee of the PN Unit Trust, and to the trustees of the Phan United Family Trust, for the acquisition of various properties.[432] It is alleged that such moneys were "advanced" without the authority or the knowledge of Roo Sheetmetal or Thomas. Such allegations are contrary to the facts as found.[433]

774 Paragraph 26B(h) alleged that Minh and Thuy wrongfully, and with no authority, caused rent to be paid from money belonging to Oz Sheetmetal to PN & Nominees or to the Phan United Family Trust. These allegations are contrary to the findings.[434]

P.16.2 Paragraph 26BB of the Defence and Counterclaim

775 There is a substantial degree of overlap between the allegations in paragraph 26BB(a)-(g) of the Defence and Counterclaim and those in paragraph 26B addressed in paragraphs 765 to 770 above. Presently, I will only address those allegations in paragraph 26BB that raise further issues, before turning to the submissions made in paragraphs 296 to 360 of the defendants' closing submissions.

776 By paragraph 26BB(a) of the Defence and Counterclaim, the defendants alleged Minh and Thuy wrongfully, and without authority, advanced Oz Sheetmetal at least $1,143,549.42 (as at 30 June 2013), which were moneys belonging to Roo Sheetmetal. There was no suggestion in the submissions that these loan moneys did not include the $1.1 million transferred as part of the proposed merger process.[435]

777 This allegation is contrary to the case generally put by the defendants concerning Thuy's authority, and also to Thomas' evidence. The defendants' case was that from 1 July 2002 onwards Thuy was responsible for managing the financial and accounting aspects of Roo Sheetmetal and of Oz Sheetmetal. There was no suggestion that there was any prohibition on Thuy, as part of this responsibility, arranging loans between the 2 companies. Further, with respect to the proposed merger, Thomas gave Thuy direct authority to do whatever she thought was appropriate.[436] Furthermore, before Thomas was excluded from the business in mid-2012, he was responsible for signing off on Roo Sheetmetal's financial statements.[437] A large part of the total of the loans the subject of the allegations in paragraph 26BB(a) of the Defence and Counterclaim were recorded in accounts expressly approved by Thomas.[438] Loans made by Roo Sheetmetal were duly recorded in the financial statements.[439]

778 Paragraph 26BB(b) alleged Minh and Thuy wrongfully, and without authority, lent the Phan United Family Trust at least $147,893 (as at 30 June 2011) of moneys belonging to Roo Sheetmetal without notifying Thomas. There are at least 2 reasons why this allegation cannot succeed. First, Thomas was actively involved in decisions concerning investments by the Phan United Family Trust and the provisions of funds by Roo Sheetmetal.[440] Secondly, loans totalling $147,893.28 were duly recorded in the 2011 financial statements of both Roo Sheetmetal and the Phan United Family Trust.[441] This fact coupled with Thuy's authority to make financial decisions for and on behalf of Roo Sheetmetal must mean the complaint is of little substance.

779 The remaining allegations in paragraph 26BB have already been addressed.[442] Accordingly, I turn to the general submissions in section K of the defendants' submissions.

780 The first issue raised in section K of the defendants' submissions concerned funds directed from Roo Sheetmetal to PN & Nominees.[443] The submissions to the effect that directing Roo Sheetmetal's funds in this way was wrongful, were premised on the contention that Thomas did not know what was happening in this regard. I reject this submission.[444]

781 The evidence establishes that in early 2003, Thomas, Thuy, Son and Joseph, as the beneficial owners of Roo Sheetmetal, all decided openly and knowingly that funds of Roo Sheetmetal should be paid to PN & Nominees in its capacity as trustee of the PN Unit Trust. This was done not only to assist Nga (and Minh), but also for the benefit of Thomas, Thuy, Son and Joseph and their families. As all beneficial owners of Roo Sheetmetal unanimously decided to take this course, it cannot be properly contended that Minh or Thuy's involvement was improper.[445] (There was no suggestion that any creditors of Roo Sheetmetal were adversely affected by the course adopted.[446])

P.16.3.2 Funds to the Phan United Family Trust

782 Similar submissions were made by the defendants with respect to funds of Roo Sheetmetal directed towards the Phan United Family Trust.[447] Again, these submissions were made on the basis that Thomas lacked knowledge about the trust deed, the trust generally and the transmission of these funds. Such submissions are contrary to the facts as found.[448]

783 Further, a significant amount of Roo Sheetmetal's funds were not simply given to the Phan United Family Trust. For example, the Phan United Family Trust's financial accounts for the year ended 30 June 2008 recorded a loan from Roo Sheetmetal of $247,893.28. A corresponding entry in the financial statements of Roo Sheetmetal for the same year was listed as a non-current asset.[449]

P.16.3.3 Transfers to bank account of Roo and Oz Sheetmetal from 2009 to 2010

784 The next issue addressed in section K was the transfer of $1.1 million from Roo Sheetmetal to Roo and Oz Sheetmetal from 24 June 2009 to 1 December 2010.[450] The defendants contend these funds were impressed with a trust in favour of Roo Sheetmetal at the time of each transfer.

785 Although there was no compelling evidence of Thomas having knowledge of the specific transfers at the time they occurred,[451] the submission that Thomas did not consent to the withdrawals from Roo Sheetmetal, or the purpose for which the plaintiffs alleged the funds were taken, is rejected. Thomas' own evidence is that he told Thuy, with respect to the proposed merger, to do whatever she wanted to do.[452] Whilst such a direction cannot be properly understood to authorise Thuy to take moneys from Roo Sheetmetal without accounting for those moneys, it undermined any submission that Thuy was acting contrary to Thomas' instructions.

786 There is some force in the defendants' submissions that, as Roo and Oz Sheetmetal had sufficient funds of its own,[453] the transfers from Roo Sheetmetal to the new account of Roo and Oz Sheetmetal were unnecessary. However, it is clear that Thuy intended moneys to be used from Roo Sheetmetal and the old bank account of Oz Sheetmetal[454] not only for the day-to-day operations of Roo and Oz Sheetmetal, but also for other investments. It is also plain that Thuy had Thomas' imprimatur to use funds of Roo Sheetmetal for the proposed "merged" business.

787 Whatever be the purpose of the transfer of the funds, the defendants' submissions on this issue failed to grapple with the fact that the transfer of funds from Roo Sheetmetal to Roo and Oz Sheetmetal was accounted for in the annual accounts of Roo Sheetmetal and Oz Sheetmetal as loans.[455]

788 A review of the accounts from the 2008 financial year to the 2011 financial year is instructive. The 2008 financial statements for Roo Sheetmetal recorded as a non-current asset a loan to Oz Sheetmetal of $24,941. The Oz Sheetmetal 2008 financial statements were not in evidence, but presumably (based on other years) there was a corresponding liability in Oz Sheetmetal's accounts. For the 2009 financial year, both the Roo Sheetmetal financial statements and the Oz Sheetmetal financial statements recorded that the loans from Roo Sheetmetal to Oz Sheetmetal had increased by $238,750 to $263,691.00.[456] These loans were also recorded in trial balances prepared by Thuy and provided to the accountant. These entries are consistent with $200,000 having been advanced by Roo Sheetmetal on 24 June 2009. Thomas signed the 2009 financial statements for Roo Sheetmetal as director, declaring them to fairly present the company's financial position as at 30 June 2009.[457] Thomas' approval of the financial statements in this manner also undermined his suggestion of lack of consent.

789 Broadly consistent with $800,000 being transferred from Roo Sheetmetal to Roo and Oz Sheetmetal for the financial year 2010, the loans recorded in Roo Sheetmetal's non-current assets increased by $785,165.28 to $1,048,856.28. A corresponding entry appears in the financial statements of Roo and Oz Sheetmetal for 2010.

790 In the 2011 financial year, the loan from Roo Sheetmetal to Oz Sheetmetal was increased by $88,068.52 to $1,136,924.80. Although the amount of the increase was not for $100,000, presumably there were other entries referable to this increase.[458]

791 For completeness, I refer to the financial statements for the years 2012 and 2013 for Roo and Oz Sheetmetal. Those accounts record loans as still owing to Roo Sheetmetal in the sums of $1,144,947.64 and $1,143,549.42 respectively.

792 In summary, the discussion between Thuy and Thomas about the proposed merger and the steps that Thuy was permitted to take, together with how the total loan of $1.1 million was accounted for in the accounts of Roo Sheetmetal, demonstrates there is no basis for the defendants to contend that these funds were impressed with a constructive trust.[459]

P.16.3.4 Taking Roo Sheetmetal's business in mid 2009

793 The defendants' next complaint is that Roo Sheetmetal's business has been taken from it. As at 30 June 2009, Roo Sheetmetal had sales revenue of $6,073,792.56, producing a net operating profit of $809,876.43. This compared with the previous year's sales of $5,148,929.21, with a higher net operating profit of $897,328.94.[460]

794 There is no issue that the only basis upon which the business of Roo Sheetmetal was transferred to Roo and Oz Sheetmetal was the purported 2009 Agreement, which has been found never to have been agreed upon or implemented. Further, even if the 2009 Agreement was entered into as alleged, Minh and Thuy, with apparent approval from Son and Joseph, elected not to proceed with the 2009 Agreement.[461] In short, Roo Sheetmetal's business was appropriated by Roo and Oz Sheetmetal despite the 2009 Agreement having never been either finally agreed or put in place, and Roo and Oz Sheetmetal provided no consideration to Roo Sheetmetal for the transfer of the business.

795 As there is no specific claim made by any party based upon the facts as found, the parties will be invited to make further submissions about the appropriate steps to be taken (and, if appropriate, orders to be made) in order for Roo and Oz Sheetmetal to properly account to Roo Sheetmetal for the value of the business taken from 1 July 2009. These submissions may also address the transfers from Roo Sheetmetal's bank account of $1.1 million, and the vehicles, machinery and equipment of Roo Sheetmetal that were treated by Roo and Oz Sheetmetal as its own from 1 July 2009.[462]

P.16.3.5 Property purchases and Roo Sheetmetal funds

796 The properties the subject of the defendants' submissions were:

(1) 40 Cambria Road, Keysborough: see paragraphs 338 to 340, 342 to 344 and 529 above.

(2) 15-17 Arvona Avenue, Sunshine North: see paragraphs 335, 341, 344 and 376 and footnote 185 above.

(3) Lot 3, 59-87 Ordish Road, Dandenong, which later became known as 1-5 Thomas Murrell Crescent, Dandenong: see paragraphs 405 to 409 above.

(4) 76-78 Rodeo Drive, Dandenong: see paragraphs 420 to 422, 504 to 505 and 618 to 619 above.

(5) 73 Venture Drive, Sunshine West: see paragraph 430 and footnote 292 above.

(6) 607-609 Point Nepean Road, McCrae: see paragraphs 433 to 435 above.

(7) 81 Venture Drive, Sunshine West: see paragraph 551 above.

(8) 75 Missens Road, Cranbourne West: see paragraph 551 above.

(9) Lots 332 and 334 Alessandra Circuit, Coomera, Queensland: see paragraph 551 above.

797 The defendants' counterclaims concerning the purchase and ownership of the above properties must fail. By reason of the findings made in relation to PN & Nominees and the PN Unit Trust,[463] the Phan United Family Trust,[464] and the transfer of funds from Roo Sheetmetal to Oz Sheetmetal/Roo and Oz Sheetmetal,[465] there is no proper basis for Thomas or Roo Sheetmetal to invite the court to impose any constructive trust with respect to the ownership of any of the properties. Although these findings dispose of the counterclaims, I will make some further brief observations.

798 With respect to the acquisitions of properties, and in particular those referred to in paragraph 796(1) to (4) above, the purchases, and the manner in which they were structured and carried out, were entirely consistent with Thomas' motives at the relevant times. From 2002 until around 2011, Thomas had the joint motive of assisting the Family Members (and their relatives) and also seeking to have affairs organised in a manner which he believed was tax effective. These purchases were perceived to fit both these criteria.

799 The defendants submitted the investments by which these properties were purchased by PN & Nominees and the Phan United Family Trust had not been of benefit to Thomas or his family, and that he had no legal interest in the properties. To the extent that the properties were held by the Phan United Family Trust, Thomas had a legal interest as a trustee (and executed a number of documents in that capacity). In any event, whether or not a benefit was actually achieved by Thomas is not to the point. The evidence established Thomas knowingly decided with the other Family Members to enter into such trust arrangements.

800 With respect to the properties referred to in paragraph 796(7) to (9) above, each of those properties was purchased by Roo and Oz Sheetmetal with funds of Roo and Oz Sheetmetal. The fact that some of those funds may have been available to Roo and Oz Sheetmetal because Roo Sheetmetal had lent $1.1 million to Roo and Oz Sheetmetal does not give rise to any cause of action. As alread[466]iscussed,466 the loans were accounted for as between the 2 companies and Thuy had due authorisation to put such loans in place.

801 Finally, speaking broadly, Thomas was actively involved, if not a driving force, in the decisions to purchase the properties that were acquired between 2003 and 2011. I reject his evidence that he directed those properties were to be purchased by Roo Sheetmetal, and that he believed the properties had been purchased in accordance with such alleged directions.

802 At all times, from 1 July 2002 until Thomas was excluded from the business in mid 2012, the Family Members generally left Thuy in charge of financial matters. Although many decisions were discussed between the Family Members, Thuy was largely responsible for the day-to-day financial operations.

803 It was common ground that the Family Members and their spouses were paid salaries and other benefits. The amounts paid in this regard were largely agreed between the parties.[467] Beyond stating that the amounts were significant, it is unnecessary to go into the detail.

804 Turning to the defendants' submissions, the first contention was that salaries were paid to the spouses of the Family Members despite the fact that they did not work for Roo Sheetmetal or Roo and Oz Sheetmetal. Whilst this is factually correct, the same observation may be made in relation to Thomas and Tina. Although there were differences in amounts, all non-working spouses received "salaries" from Roo Sheetmetal or Roo and Oz Sheetmetal or both.

805 Next, differences were identified between the various salaries and levels of superannuation paid. However, there was no consistent pattern. For example, in 2004, Joseph was paid more than Thomas. However, in 2011 and 2012, Thomas and Tina were paid more than the plaintiffs.[468] In short, having carefully gone through the figures, I do not accept the submission of the defendants that the salaries and superannuation paid was in recognition of Thomas being the true owner of Roo Sheetmetal and Roo and Oz Sheetmetal.[469]

806 The defendants next refer to Nga receiving a BMW motor vehicle, and that the loan repayments for that vehicle were paid from the account of Roo and Oz Sheetmetal. The fact that Nga drove a BMW was known to Thomas at the time. Further, the evidence is that all spouses were offered a motor vehicle. This included Tina, who rejected the offer.[470] In short, all the Family Members were treated in a similar fashion, albeit that Nga appears to have had the benefit of a more expensive vehicle than others.

807 Finally, the defendants referred to superannuation payments that were made for the benefit of Minh and Thuy. Records evidencing these payments were tendered. Thuy gave evidence that while these payments were made by Oz Sheetmetal to Minh and Thuy, equivalent payments were made to Thomas and Joseph on Roo Sheetmetal's "side". In the context in which it unfolded, I accept this evidence.[471]

P.17 Were any payments received by Oz Sheetmetal for work performed in the business of Roo Sheetmetal impressed with a trust in favour of Roo Sheetmetal as alleged at paragraph 24 of the Defence and Counterclaim?

808 Paragraph 24 of the Defence and Counterclaim alleged that, insofar as Oz Sheetmetal received payments for work performed "in the business of Roo Sheetmetal", those payments were "at all times impressed with a trust in favour of Roo Sheetmetal". It was alleged by reason of this, the moneys in question belonged to Roo Sheetmetal. Precisely why it was alleged that the moneys were impressed with the trust was not pleaded. Again, the underlying premise of this allegation has not been established. It has been found that Roo Sheetmetal and Oz Sheetmetal were separate companies with different ownership structures. In particular, Oz Sheetmetal's business was not part of Roo Sheetmetal's business by reason that Oz Sheetmetal was a subsidiary of Roo Sheetmetal, or for any other reason. Accordingly, this allegation fails at the threshold.

809 In their written submissions, the defendants stated that the moneys were impressed with the trust by "reason of the matters referred to in sections G and K" of those submissions.

810 Section G of the defendants' submissions was entitled "Minh and Thuy held the shares in Oz Sheetmetal on trust for Roo Sheetmetal". The first sentence of section G states Oz Sheetmetal, from its beginning, was a creature of Roo Sheetmetal. This is entirely contrary to the facts as found. Accordingly, this section of the submissions does not need to be considered further for the purposes of answering question P.17.[472]

811 As set out above,[473] section K of the submissions was generally concerned with assets and business removed from Roo Sheetmetal. These submissions go well beyond allegations concerning "work performed in the business of Roo Sheetmetal".

812 Suffice to say that payments received by Oz Sheetmetal from Roo Sheetmetal for work performed by Oz Sheetmetal were not impressed with the trust alleged. When Roo Sheetmetal referred work to Oz Sheetmetal, it was doing no more than subcontracting out the work for which, when performed, Oz Sheetmetal was entitled to be paid. Although on occasions the referral of work by Roo Sheetmetal to Oz Sheetmetal was undoubtedly to assist Oz Sheetmetal during quiet periods, there was nothing in the arrangements made which indicated funds paid by Roo Sheetmetal would be impressed with any trust. Further, there is no proper basis upon which any "trust" ought to be imposed as a matter of law.[474] The defendants cited no authority in support of their submissions that the payments in question were impressed with a trust.

P.18 Was the computer dongle held by Roo and Oz Sheetmetal as the wholly owned subsidiary of Roo Sheetmetal on trust for Roo Sheetmetal as alleged at paragraph 35B of the Defence and Counterclaim?

813 The plaintiffs have not established that the dongle was ever held by Roo and Oz Sheetmetal before Thomas gave it to Francis. See paragraphs 694 to [](#_Ref43 > At all material times in failing to keep separate the funds of Roo Sheetmetal (being receipts of Roo Sheetmetal in consideration for the provision of product and services by it) from the funds of Oz Sheetmetal (to the extent Oz Sheetmetal received payment in consideration of the provision of product and services) Thuy and Minh have aided and abetted Oz Sheetmetal to obtain the funds of Roo Sheetmetal to which Oz Sheetmetal was not entitled.

823 The defendants' submissions addressing this question simply stated, "by reason of the matters referred to in sections G and K", the question should be answered in the affirmative.[484]

824 To the extent of the matters set out in paragraphs 793 to 795 above, the defendants have established there was a failure to keep the operations of Roo Sheetmetal (and the funds derived from those operations) separate from Roo and Oz Sheetmetal after 1 July 2009. However, precisely what may be characterised as "receipts of Roo Sheetmetal in consideration for the provision of product and services by it" and "the extent Oz Sheetmetal received payment in consideration of the provision of product and services" is not clear on the evidence. No submission made by the defendants sought to identify exactly what was the subject of this allegation. Accordingly, the observations in paragraphs 794 to 795 above are repeated. Beyond this, it is not appropriate to make further findings.

(1) If Minh and Thuy held their shares in Oz Sheetmetal on trust for Roo Sheetmetal, have Minh and Thuy conducted the affairs of Oz Sheetmetal in a manner which is oppressive of and unfairly prejudicial to Roo Sheetmetal within the meaning of s 232 of the Corporations Act by reason of the matters alleged at paragraph 26B of the Defence and Counterclaim?

(2) If so, and in any event, have Minh and Thuy caused loss and damage to Roo Sheetmetal by reason of the conduct alleged in paragraphs 26B to 26BB of the Defence and Counterclaim?

825 As to the first question, it is inappropriate to consider issues concerning the oppressive conduct alleged as the premise for the allegation, namely Minh and Thuy holding shares in Oz Sheetmetal on trust for Roo Sheetmetal, has not been established.[485]

826 The second question is not contingent upon any particular answer to question P.22(1). The conduct alleged in paragraphs 26B(a)-(d), (f)-(h) and 26BB has already been addressed.[486] For the reasons stated in paragraphs 772 (and 793 to 795) above, Minh and Thuy have caused loss to Roo Sheetmetal, the amount of which is yet to be assessed.

827 For completeness, I will refer to the other allegations in paragraph 26B briefly. Paragraph 26B(e) alleged that, since 2011, Minh and Thuy ignored Thomas' directions and instructions as to how the business was to be conducted and thereby deprived Roo Sheetmetal and Roo and Oz Sheetmetal of Thomas' knowledge, skill and directions in the business of Roo Sheetmetal. Save that Thomas was excluded from the business in mid 2012 (after which he did not attempt to give any relevant directions or instructions), there is little or no evidence to support the allegation that Minh and Thuy otherwise ignored Thomas' directions and instructions. That disposes of the allegation, but, to the extent the allegation appears to be premised, contrary to the findings above, on Thomas having authority to give directions and instructions that Minh and Thuy were bound to follow, the defendants have failed to make out the allegation.

828 Paragraph 26B(i) alleged Minh and Thuy wrongfully and without authority paid legal fees of Minh, Thuy, Son and Joseph for this proceeding from money belonging to Roo and Oz Sheetmetal in circumstances where Roo and Oz Sheetmetal makes no substantial claim in this proceeding. There was no issue that Roo and Oz Sheetmetal has met the legal fees of the plaintiffs in this proceeding.

829 Paragraph 26B(j) alleged Minh and Thuy wrongfully and unfairly caused Roo and Oz Sheetmetal to restrict and not make payment to Roo Sheetmetal of any dividend in the period since 2010 from the profits of Roo and Oz Sheetmetal. It has been found that dividends were paid in the financial years of 2010 and 2011.[487] Otherwise, no further dividends have been paid.[488] However, for most of Oz Sheetmetal/Roo and Oz Sheetmetal's existence dividends have not been paid and Thomas has taken no exception to this. In the circumstances, the absence of dividends for the financial years ended 30 June 2012, 2013 and 2014 does not establish that Minh and Thuy have acted wrongfully or unfairly in this regard.

830 Paragraph 26B(k) alleged Minh and Thuy failed to cause Roo and Oz Sheetmetal to register Roo Sheetmetal as its only member. There was no issue that Roo Sheetmetal has not been registered as the only member of Roo and Oz Sheetmetal, but there has never been any proper basis for doing so.

P.23 In the event that the allegation at paragraph 25(b) of the Statement of Claim is upheld**[489]** (that each of Minh, Thuy, Son, Joseph and Thomas are beneficially entitled to 20 percent of the shares in Roo and Oz Sheetmetal, which in turn is beneficially entitled to all of the shares in Roo Sheetmetal):

(1) Have Minh and Thuy acted in the affairs of Oz Sheetmetal (now Roo and Oz Sheetmetal) in their own interests rather than in the interests of the members as a whole or in a manner that appears to be unfair or unjust to Thomas within the meaning of s 461(e) of the Corporations Act by reason of the conduct alleged at paragraphs 26B, 26BB and 26C of the Defence and Counterclaim?

(2) Have Minh and Thuy conducted the affairs of Roo and Oz Sheetmetal in a manner that is oppressive of and unfairly prejudicial to Thomas within the meaning of s 461(f) of the Corporations Act by reason of the conduct alleged at paragraphs 26B, 26BB and 26C of the Defence and Counterclaim?

(3) Is it otherwise just and equitable within the meaning of s 461(k) of the Corporations Act that Roo and Oz Sheetmetal be wound up?

831 This question does not arise as the allegation in paragraph 25(b) of the Statement of Claim has not been upheld. Each of subparagraphs (1), (2) and (3) are contingent upon a finding that Minh, Thuy, Son, Joseph and Thomas were beneficially entitled to 20 percent of the shares in Roo and Oz Sheetmetal. Accordingly, there is no occasion, on the pleadings, to consider whether Minh and Thuy have acted in their own interests rather than in the interests of the members as a whole, or acted oppressively in the conduct of the affairs of Roo and Oz Sheetmetal or that it is otherwise just and equitable for Roo and Oz Sheetmetal to be wound up.

P.24 Are the plaintiffs entitled to any of the relief sought in:****[490]

(1) Paragraph A of the prayer for relief in the Statement of Claim as against Thomas?

(2) Paragraph B of the prayer for relief in the Statement of Claim as against Triangle Sheetmetal?

(3) Paragraph D of the prayer for relief in the Statement of Claim as against Roo Sheetmetal?