Nigro v Parisi

5245/02 - ANTONIO NIGRO & 3 ORS v FILIPPO PARISI & ANOR JUDGMENT

1 These proceedings are brought by Antonio ("Tony") Nigro and his wife Maria Nigro and Vincenzo ("Vince") Pirrello and his wife Carmela Pirrello against Filippo ("Phillip") Parisi and his wife Domenica Parisi. Together with Bartolo ("Bob") Parisi and his wife, and Giovanni ("John") Parisi and his wife, the parties conducted certain business operations through various corporate vehicles. 2 The husbands were the more active parties in the business ventures. In the narrative that follows, I shall, for convenience, refer to the husbands alone, except where it is necessary to refer particularly to the wives. Moreover, because some of the husbands share the same family name, I shall, for convenience, refer to each by the first name by which he is familiarly known. 3 It is accepted by the parties that, prior to 1996, each couple held a 20% beneficial interest in "the business". There were two arms to the business. First, there was the bathroom and kitchen component, primarily involving the importation and sale of Italian bathroom and kitchen fittings and the sale of local bathroom and kitchen products. This part of the business was carried on through five corporate entities: Gieffe Imported Pty Ltd, Gieffe Pty Limited, Gieffe Tiles Pty Limited, Bezipark Pty Limited and Parisi Industries Bathroomware Pty Limited. The second component of the business entailed property development. It operated through Australian Assurance Agencies Pty Limited ("AAA") and undertook an unsuccessful joint venture development in Drummoyne. This aspect of the business was a more recent addition to the established bathroom and kitchen component. 4 Capital was raised for the business by loans secured over the properties owned by the business (in that they were owned by one of the several companies). These properties were at 63-65 Pyrmont Bridge Road Camperdown, 198-200 Norton Street Leichhardt and 202-204 Norton Street Leichhardt. Capital was also raised by loans secured over the family homes of Tony Nigro, Vince Pirrello, Bob Parisi and John Parisi and that of Vito Nigro (Tony Nigro's father). The indebtedness secured over the family homes of Tony Nigro and Vince Pirrello consisted of a portion of personal debt, being monies obtained by way of home loan to assist the purchase of the home, and a portion of business debt, being monies obtained for and applied to the business. The loan secured over Vito Nigro's home was wholly business debt in this sense. I shall say more in due course about how the loans giving rise to the business debt secured on the homes were advanced. 5 Through the mid 1990's, the business experienced financial difficulties. Loans repayments were not made on time and recovery proceedings were brought by various financial institutions. One of the causes of this was the failure of the Drummoyne development. In 1996, the parties decided to go their separate ways. It was agreed that Tony Nigro and Vince Pirrello would transfer their interests to Phillip Parisi and would no longer have any involvement in the business. 6 The sole issue in this case involves identification of the terms upon which it was agreed by the parties in 1996 that Tony Nigro and Vince Pirrello would no longer hold an interest in the business. The controversy is quite narrow. Tony Nigro and Vince Pirrello contend that, in return for their interest in the business, Phillip Parisi would accept sole responsibility for all debts, actual and contingent, referable to the business. This was said to include responsibility for the "business debt" portion of the loans secured over the Nigro and Pirrello family homes and the loan secured over Vito Nigro's home. Furthermore, the plaintiffs say that it was a term of the agreement that upon the sale or refinancing of the three properties owned by the business, Phillip Parisi would arrange for payment of those amounts. 7 Phillip Parisi does not deny that an agreement was struck in 1996 under which he acquired the interests of Tony Nigro and Vince Pirrello in the business. Nor does he deny that he agreed to accept responsibility for debt of the business, including that secured over the properties owned by the business. But he says that he never agreed to accept responsibility for any debt secured over the family homes of Tony Nigro and Vince Pirrello and that of the home of Vito Nigro. 8 It is common ground that the properties owned the business were either sold or refinanced by June 1998. The case that Tony Nigro and Vince Pirrello seek to make is that from this date Phillip Parisi has been in breach of the 1996 agreement for failure to pay the outstanding business debt secured over the Nigro and Pirrello family homes and the debt secured over Vito Nigro's home. 9 The 1996 agreement was never reduced to writing. Evidence was largely given by Tony Nigro and Phillip Parisi, with some testimony from Bob Parisi and John Parisi. Vince Pirrello did not testify for reasons that I will come to in due course. The terms for which the parties contend 10 Although the terms of the agreement of December 1996 were never reduced to writing, the parties have, of necessity, set out in written form for the purposes of these proceedings the respective versions for which they contend. Those versions are as follows:

(1) The contention of Tony Nigro and Vince Pirrello: "(i) The First and Third Plaintiffs, John Parisi and Bartolo Parisi would transfer the shares they held in all of the Companies to the First and Second Defendants. (ii) The First and Third Plaintiffs, John Parisi and Bartolo Parisi would disclaim any beneficial entitlement they had to any of the shares in any of the Companies. (iii) The First and Third Plaintiffs, John Parisi and Bartolo Parisi would resign from the positions they held as director and/or secretary in any of the Companies. (iv) The Plaintiffs, John Parisi and his wife and Bartolo Parisi and his wife, would transfer their interest in 198-200 Norton Street, Leichhardt to the First and Second Defendants. (v) The Defendants would in so far as the Plaintiffs were concerned: (a) accept their sole responsibility for all debts actual and contingent referable to the conduct of the Business; (b) indemnify the Plaintiffs against any liability they had for any of the debts of the Business; and (c) as soon as the Business Properties had either been sold or the debts referable to the conduct of the Business which were secured over the Business Properties had been refinanced, arrange for the repayment of and discharge of the mortgages over the Concord Property, the Ludgate Street Property and the Abbotsford Property (the 'Mortgages'). (vi) all necessary documentation would be signed to give effect to the transactions referred to in (i) to (v) above and the parties would be jointly responsible for the costs and expenses associated with such documentation."

(2) The contention of Phillip Parisi: "(i) The First and Third Plaintiffs, John Parisi and Bartolo Parisi would transfer the shares they held in all of the Companies to the First and Second Defendants. (ii) The First and Third Plaintiffs, John Parisi and Bartolo Parisi would disclaim any beneficial entitlement they had to any of the shares in any of the Companies. (iii) The First and Third Plaintiffs, John Parisi and Bartolo Parisi would resign from the positions they held as director and/or secretary in any of the Companies. (iv) The Plaintiffs, John Parisi and his wife and Bartolo Parisi and his wife, would transfer their interest in 198-200 Norton Street, Leichhardt to the First and Second Defendants subject to the mortgage on that property. (v) That each of the parties would be responsible for the debts secured by mortgages on their houses as and from the date or dates when the companies including Gieffe Imported ceased making payments to the bank in 1996 and the defendants would be liable for the sums secured by the mortgage on the Camperdown Property, 202 Norton Street and 198 Norton Street which then exceeded the estimated value of the properties by the sum of about $436,000.00. (vi) that all necessary documentation would be signed to give effect to the transactions referred to in (i) to (v) above and the parties would release each other from all claims, demands and actions and be jointly responsible for the costs and expenses associated with such documentation."

(The properties referred to as "the Concord Property", "the Ludgate Street Property" and "the Abbotsford Property" are, respectively, the homes of Tony Nigro, Vince Pirrello and Vito Nigro.) 11 The differences between the respective versions are shown in bold. 12 The plaintiffs seek damages for breach of contract. They say that the defendants have failed to perform the promise in item (v) of paragraph 10(1) above and, in particular, that in item 10(1)(v)(c). They also claim declaratory relief. The 1996 meetings 13 The oral agreement was made as a result of two meetings in December 1996. Tony Nigro, Vince Pirrello, Phillip Parisi, Bob Parisi and John Parisi were present at both meetings. Each except Vince Pirrello gave evidence of what was said at the meetings. Tony Nigro deposed in an affidavit to the following conversation: "At this meeting Mr Parisi said words to the following effect: Mr Parisi: 'The Group is overcommitted and we are not trading well. There is a risk here.'

He then said to Mr Pirrello and me words to the effect:

'You have no ability to repay these debts. I have the capacity to service the debts. If you transfer all of your interests in the companies and the properties to me and Domenica we will take responsibility for all of the debts. As soon as I can sell or re-finance the property I will arrange for the mortgages in your names to be removed.'

I said: 'Yes, I agree. I think its best we separate while we can.'

14 In cross-examination, Tony Nigro described the matter thus: "Q. Well, what was that proposal? A.To the best of my recollection, the proposal was, "These are the liabilities of the company, the group cannot come to the party to pay these debts, I am prepared to take over these assets and liabilities of the company in exchange for everything being transferred to myself and my wife", or to himself. I don't recall him saying his wife." 15 Phillip Parisi recounted the meetings in the following terms: "I said: 'As everyone has a debt on their houses, and as you are individually responsible for your own debts on your home, this is the list of assets and liabilities that I am prepared to be responsible for.'

On the schedule listing the property mortgage liabilities and real property assets of the companies, there was a shortfall of $436,000.00, the liabilities exceeding the assets.

Those present looked at the documents headed liabilities.

I then said: 'I will be responsible for the properties and also be responsible for the repayment of the ING Mercantile loan and the mortgages on the Norton Street properties. I will need all of the companies and properties transferred to me and Domenica. That will leave me with a shortfall of $436,000.'

Antonio Nigro, Vincenzo Pirrello and my brother Bob Parisi said: 'that is good. We won't have to sell our houses.' "

16 This position was put thus in cross-examination:

" Q. You also agree, you understood, immediately upon the agreement being struck, that you on the one hand and the Nigros and the Pirrellos on the other hand would be going their separate ways in respect of those business companies? A. Yes.

Q. And your understanding when the agreement was struck was that any of the business companies no longer owed any money to, for example, Mr Nigro? A. Yes.

Q. And that was fundamental to the deal, as you understood it? A. That was the deal.

Q. Indeed, the fact that the company no longer had any liabilities, for example, to Mr Nigro, from your perspective was fundamental? A. Can you explain to me what you mean fundamental?

Q. Well, it was important. You regarded that as a very important component of the deal? A. Yes."

"Antonio Nigro states my brother Phillip and his wife Domenica 'will take responsibility for all of the debts'. This is not true. All of us had been responsible for our private mortgages for some months prior to this meeting and I understand that we would continue to be responsible for our own mortgages."

18 John Parisi's evidence was to the same effect as Bob Parisi's. He gave evidence that: "[a]t all times, we were all aware that we would attend to our own private mortgages. Antonio Nigro to ascertain that he was not responsible for his private mortgage is incorrect." The documents in connection with the meetings 19 In evidence there are four documents said to have been produced at one or other of two meetings in December 1996 at which the agreement between the parties was developed. Together with a letter of August 1994 to which I shall come, they are the only documents throwing light on the facts in issue. The first three documents were prepared by Phillip Parisi, and there is a dispute about the authorship of the fourth document. 20 It is not disputed that the first two documents were produced at the first meeting. The first reads as follows: " ASSETS Camperdown 2,000,000 2,796,824 198 - 200 Norton St 900,000 610,000 202 - 204 Norton St 950,000 676,000 4,082,824 Gieffe Stock 460,000) " ` 400,000) 890,000 Bank are …… 20,000) Joinery 10,000) 4,740,000 LIABILITIES Administration 138,000 4,082,824 ADH Parisi 250,000 707,882 Sergio 100,000 Proven ….. 27,000 4,790,706 Seric 100,000 [Illegible] 19,500 [Illegible] 17,000 Cleaner 8,000 Ilve 10,000 [Illegible] 2,000 676,500 ISAIS 4,500 681,000 26,882 707,882 ADVANCE ACC" 21 In the "ASSETS" section, the first column records the estimated value of each item, while the second column records the debt to which the item was subject. The 'LIABILITIES' section records liabilities other than those related to specific assets. The overall picture is total assets to the value of $4,740,000 and liabilities of $4,790,706, representing a net deficiency of $50,706. 22 The second document reads as follows: " 50,000 NIGROS 150,000 220,000 ATLAS CONCORD 50,000 200,000 LOAN ON HOUSES NIGRO 450,000 PIRELLO 455,000 B. PARISI 320,000 J. PARISI 240,000" 23 Only some of these figures were explained by the parties. But it is clear that this document details the loans secured over the family homes of the partners and that of Vito Nigro (which is listed as "NIGROS" at the top of the document). 24 It is agreed that Phillip Parisi made the entries and calculations in each of these documents following discussion and agreement with the other parties. It is not suggested that either of these documents forms part of the agreement reached between the parties. But they do provide some insight into the parties' understanding of the financial position of the business at the time the agreement was made. 25 The third document is one which is said by the defendants to represent the substance of the agreement. It reads as follows: " LIABILITIES CAMPERDOWN 2,950,000

RATES - agent 100,000 $4,336,000 ASSETS CAMPERDOWN 2,000,000 198-200 NORTON ST 900,000 202-204 NORTON ST 900,000 GIEFFE IMP 100,000 $3,900,000 LIABILITIES 4,336,000 ASSETS 3,900,000

$436,000 AAA 50%" 26 The defendants say that this document was tabled at the second meeting, being the meeting at which the agreement was reached. The plaintiffs agree that this document was tabled by Phillip Parisi who said that it was the list of assets and liabilities that he was willing to be responsible for. However they say this was done at the first meeting and not the second, and was rejected by the plaintiffs. It should be noted that the document is an incomplete record of the group's assets at the time, failing to take account of tax losses which would pass to Phillip Parisi in the agreement and that fact that of a prospective tenant in evaluating the Camperdown property's value. 27 The proposition put by Phillip Parisi at the second meeting, say the plaintiffs, is set out in the fourth document - a document which they say was prepared by Phillip Parisi and presented by him at that meeting. This, unlike the first three documents which were in Phillip Parisi's handwriting, was typed and it reads as follows: " TO GIEFFE DIRECTORS: SUBJECT: DISTRIBUTION OF REMAINING ASSETS WITH GROUP Further to our discussion on Monday & Wednesday I understand that the group has the following assets and liabilities: ASSETS: 63 Pyrmont Bridge road CAMPERDOWN Value $2,000,000.00 200 Norton Street LEICHHARDT $ 900,000.00 204 Norton Street LEICHHARDT $ 950,000.00 GIEFFE STOCK $ 890,000.00 A.A.A. PTY LIMITED LOSSES $ 494,000.00 GIEFFE IMPORTED LOSSES $ 169,000.00 TOTAL ASSETS $5,403,000.00 ---------------------------------------------------------------------------------------- LIABILITIES Mercantile Mutual $2,792,000.00 Land Taxes & Council Rates $ 100,000.00 200 Norton Street Mortgage $ 610,000.00 204 Norton Street Mortgage $ 676,000.00 Westpac Re Vito Nigro $ 150,000.00 Concord Atlas $ 50,000.00 Mr. Parisi (Senior) $ 140,000.00 Broadway Credit Union (Tony Nigro) $ 450,000.00 Broadway Credit Union (Vince Pirrello) $ 455,000.00 Bank Of Melbourne (Bob Parisi) $ 320,000.00 Bank Of Melbourne John Parisi $ 240,000.00 Gieffe Creditors as promised $ 707,000.00 TOTAL $6,690,000.00 LESS TOTAL ASSETS $5,403,000.00 SHORTFALL $1,287,000.00 1/5 SHARE = 1,287,000/5 = $257,400 PER SHARE" 28 As I have said, the defendants dispute the authorship of this document. They say that it was prepared by Tony Nigro who brought it to the second meeting. Furthermore it is said by them that the document played no part in the discussions. One of the companies of the group - Parisi Industries Bathroomware Pty Limited - is not listed in the document. It is clearly the most detailed of the four documents but cannot be regarded as a complete statement of the position. 29 I am not satisfied that any of these four documents reflects the full agreement the parties reached. They do, however, have some significance in the determination of the content of that agreement. This is because two of them (the second and the fourth) recognise debt secured on the family homes as related to the business and as representing liabilities of the business. This, it seems to me, provides persuasive evidence that each such debt was not regarded, as among the parties, as the separate and personal responsibility of the relevant home owner. August 1994 letter 30 Mr Lee of counsel for the plaintiff placed a great deal of emphasis in his opening upon a letter written in August 1994 by Mr Cordato, the then solicitor for the parties and for the business. Although the letter was written before the 1996 agreement, Mr Lee argued that it defines the then existing practice in the company for the servicing and repayment of business debt. The letter is addressed to Mr and Mrs Tony Nigro, although Phillip Parisi in cross-examination admitted that he received a corresponding letter that was most likely in the same terms. Mr Cordato communicated in the letter the result of settlement negotiations in certain proceedings brought by Resi-Statewide and the Bank of Melbourne against AAA. After explaining the effect of a deed of settlement Mr Cordato said: "At the same time as the documents were signed to evidence the settlement with Resi-Statewide and the Bank, you signed a further set of documents which were headed "Deed of Covenant, Guarantee and Indemnity". These Deed have nothing to do with Resi-Statewide or the Bank. As stated in our previous letter, we prepared those Deed to put into writing the internal arrangements that had developed over the years between the families involved in the Gieffe and Parisi businesses and also for the benefit of the three couples who are now signing fresh loan agreements with the Bank of Melbourne. These Deeds cover the six homes that each of the six couples involved own, together with a further property in the name of the three Parisi brothers in Albion Street Leichhardt. They do not cover the properties held in the company names. Under these Deeds it is made clear that Gieffe Luxury Kitchens & Bathrooms Pty Limited and Gieffe Tiles, Bathrooms and Kitchens Pty Limited are to be primarily liable to pay the mortgages on each of the properties. This follows the existing practice within the Gieffe and Parisi businesses. This obligation of repayment is undertaken on the basis that the funds to be repaid are those which have been borrowed by the Gieffe companies from its business or property acquisitions which applies to four of the properties, or used by the Gieffe companies for one of its ventures, such as in the case of the Drummoyne development where the three homes were used as security for Australian Assurance Agencies Pty Limited to borrow monies. It is therefore proper that the Gieffe companies to be primarily liable by way of a written contract to repay those loans. The second aspect of each of those Deeds of Covenant and Indemnity [scil. Deeds of Covenant Guarantee and Indemnity] is the guarantee by all six (6) couples involved in the Gieffe and Parisi companies for the repayment of those loan in the event that the Gieffe company defaults. It is important to note that these guarantees are private arrangements only between the various couples involved in these businesses - and that they apply only if Gieffe does not pay the mortgages. The only exception to these guarantees are L & M Hilder, who have guaranteed only the other two (2) mortgages with the Bank of Melbourne being over the homes of J & S Parisi and B & A Parisi. This exception is because L & M Hilder do not have an interest in the Gieffe companies and it is the Gieffe companies which have borrowed the other monies." 31 No Deed of Covenant Guarantee and Indemnity is in evidence. Furthermore, neither Tony Nigro nor Phillip Parisi recalled executing any such document - a point stressed by Mr Gruzman for the defendants. Nevertheless, Mr Lee submitted that Mr Cordato's letter, setting out the Deed's terms and presumably prepared on instructions from his clients - who included each of the present parties - gives a clear impression of the conduct of the business. Mr Lee noted that, in cross-examination, Phillip Parisi admitted that there was nothing new proposed by Mr Cordato in the letter. In particular, the letter sheds light on the nature of the debts secured over the family homes and the practice adopted for meeting the requisite repayments where the business was "primarily liable to pay the mortgages on each of the properties." It is submitted that from this description of practice in 1994 inferences can be drawn as to the terms of the 1996 agreement. 32 Mr Lee further submitted that the last paragraph quoted above is significant. It refers to a cross-collateralisation agreement as part of Deed of Covenant Guarantee and Indemnity. Under this there were to be cross-guarantees, among the six couples, in relation to the loans secured over their respective properties. It is said that this again shows how the relevant debt was considered a company debt for which all the individuals were to take secondary responsibility, and not something for which any individual was separately responsible. 33 Mr Gruzman argued that any practice regarding loan repayments that might be gathered from Mr Cordato's letter has nothing to do with the loans secured over the Tony Nigro and Vince Pirrello family homes and Vito Nigro's home. He points to a later part of the letter where Mr Cordato wrote: "Whilst the high levels of mortgage debt are obviously of concern, the only way in which these problems can be resolved is by contributing every necessary effort to make the Gieffe and Parisi companies profitable, which will either produce profits or enable Gieffe to refinance the properties owned in the company names and therefore the reduce the mortgage debt." 34 It is said that the debts in question were those secured over the properties of the business. But this cannot be the case. The extract quoted above at paragraph [30] expressly refers to the "six homes of the six couples". In cross-examination, Tony Nigro explained that the six couples were the five couples involved in the business and Vito Nigro and his wife. There is no doubt that the letter refers to debts secured over the properties of the business, but I am of the opinion that it must also refer to the debts of the business secured over, among others, the family homes of Tony Nigro, Vince Pirrello and Vito Nigro. 35 Mr Gruzman submitted that, even if this is the case, the letter is nevertheless of little probative value. No evidence was given to explain why a practice apparently in force in 1994 would not have continued in 1996. There was, as far as can be ascertained, no significant modification of business practice in the intervening period. If I accept, as I do, that in 1994 the business adopted the "usual practice" as expressed in Mr Cordato's letter I think it logical to assume that that same practice continued into 1996. Nature of loans secured over the properties 36 In evidence are loan and mortgage documents relating to the business debt secured on the homes of Tony Nigro and his wife, Vince Pirrello and his wife and Vito Nigro. These documents provide an important insight into the nature of the loans. 37 In relation to the home of Tony Nigro, a mortgage T644872 was granted to Westpac Banking Corporation on 18 May 1983. On the signing page of that document, in the space for the debtor, is affixed the common seal of Ideal Ceramics & Accessories Pty Limited - which later changed its name to Gieffe Imported Luxury Kitchen & Bathrooms Pty Limited. That mortgage was subsequently discharged on 17 January 1994 and a subsequent mortgage U21573 was granted to Broadway Credit Union Limited on 1 February 1994. It is accepted between the parties, and it is consistent with other documents tendered, that this mortgage replaced the Westpac mortgage in a refinancing of the original loan. This mortgage was in turn replaced by a mortgage in favour of St George Bank Limited (Registered No. 2992393) in April 1997. The responsibility for the loan repayments secured by this mortgage to St George Bank Limited is one of the matters in dispute. 38 With respect to Vito Nigro's home mortgage Z281298 was granted to Westpac Banking Corporation on 31 January 1990. On the signing page of that document, in the space for the debtor, is affixed the common seal of Gieffe Imported Luxury Kitchen & Bathrooms Pty Limited. In settlement of proceedings brought by Westpac against Vito Nigro an amount of $50,000 was paid to Westpac by Tony Nigro. The plaintiffs seek recovery of these monies from the business. 39 In relation to the home of Vince Pirrello, the mortgage documents themselves do not disclose the nature of the debt secured. For this we must turn to the documents produced in 1993 when the original mortgage in favour of Barclays Bank Australia Limited was discharged and replaced with a mortgage in favour of Broadway Credit Union Limited - in a similar refinancing process as adopted by Tony Nigro in 1994. On 23 December 1993 Michell Sillar, Vince Pirrello's solicitor, wrote a settlement statement entitled: "RE: YOUR REFINANCE WITH BROADWAY CREDIT UNION LIMITED RE: YOUR DISCHARGE OF MORTGAGE WITH BARCLAYS BANK SECURITY: 39 WYMSTON PARADE ABBOTSFORD"

In that letter it was recorded that an amount of $511,000.00 was to be paid to Barclays Bank "in full discharge of your mortgage to them." On the 3 February 1994 Barclays Bank wrote to Phillip Parisi in his position as an officer of Parisi Industries Bathroomware Pty Limited. Relevantly the letter reads at follows: "As requested I confirm for the record that settlement of your facilities with the bank was effected on 23.12.93. At settlement we received $511,000.00 which was applied in repayment of your facilities as follows:- PARISI INDUSTRIES BATHWARE PTY LTD Loan Account - $276,607.90 Overdraft - $101,238.45 $377,846.35 PIRELLO V & C Housing Loan - $133,003.65 - $510,850.00 Bank settlement fees $ 150.00 - $511,000.00" 40 These documents show that loans were made direct to the various companies upon the security of the respective homes. In each case, there was a direct debtor-creditor relationship between the relevant company in the Gieffe/Parisi group of companies and the lending institution. The individuals were not borrowers from the institutions of the money advanced for business purposes. They merely made their homes available as security for the debts of the Gieffe/Parisi companies. They thus accommodated those companies by exposing themselves to the possibility of mortgage enforcement action without any countervailing benefit. 41 The only thing distinguishing these loans from those secured on the Camperdown and Leichhardt properties owned by the companies was the nature of the security. Under loans of both kinds, the principal debtor was the relevant Gieffe/Parisi company. And the loan proceeds were, in each case, employed in the business. This circumstance adds considerable weight to the propositions the plaintiffs seek to advance by reference to the 1994 letter. The fact that one or other of the companies was the actual borrower under each "business" loan secured on one of the homes makes it not only logical but virtually inevitable that it would be the business, rather than the individuals, which serviced that loan and was responsible for repayment of the principal in each case. Credibility - Tony Nigro 42 Much in this case depends on the testimony of witnesses recalling events of some eight years earlier. Tony Nigro, Phillip Parisi, Bob Parisi and John Parisi all gave evidence. For the reasons that follow, I find Tony Nigro's evidence generally more credible than that of Phillip Parisi, and that the limited evidence of Bob Parisi and John Parisi sheds little light on the matters at hand. 43 Turning first to Tony Nigro, it is said against him by the defendants that he was non responsive in his answers and tailored his evidence as best to suit his case. The most obvious indication of this, so it is said, is the evidence of his complaint made to the Legal Services Commissioner about Mr Cordato. The defendants say that complaint is inconsistent with the case the plaintiffs put in these proceedings. It arose after the sale of the property at 198-200 Norton Street Leichhardt in June 1998, an acknowledged asset of the business. At that time, Tony Nigro and his wife remained registered proprietors of the property, despite the effect of the 1996 agreement on their beneficial ownership. In a letter to Mr Cordato on 15 September 1999, Tony Nigro's solicitor, Mr Stewart Levitt, wrote that "you have failed to account for the proceeds of sale to at least two of the co-Vendors [the Nigros] who owned the property as tenants in common." Further correspondence was exchanged between the solicitors following which, having failed to resolve the issue, an official complaint including this ground was made to the Legal Services Commissioner. 44 The defendants point to the fact that, on either of the competing versions of the 1996 agreement, Tony Nigro and his wife were not entitled to any portion of the proceeds of sale of 198-200 Norton Street Leichhardt. Their interest in that asset went to Phillip Parisi and his wife under the 1996 arrangements. It is said the fact that a complaint was made is so inconsistent with Tony Nigro's assertions in this case as to reflect upon his credit. It is an example, say the defendants, of how Tony Nigro has tailored his version of events be best suit his interests. In fact Vince Pirrello, who with Tony Nigro had initially instructed Mr Levitt to make the complaint, wrote to Mr Levitt in August 2000 asking that the complaint be dropped. He cited the transfer of the assets to Phillip Parisi as denying him any entitlement to any further interest in the property or proceeds of sale. 45 It is true that, on its face, the complaint is inconsistent with what the plaintiffs now say was agreed to in 1996. This fact was pointed to in Mr Cordato's response to Mr Levitt's letter where he said: "The answer is to be found in the Deed of Release which was signed by your clients in the later part of 1997, in which is [sic.] was acknowledged that your clients, and others, had transferred their property interests in the subject property to Mr & Mrs P & D Parisi." 46 Nevertheless, Tony Nigro pressed the complaint and in evidence is correspondence between Mr Levitt, Mr Cordato and Ms Young, a solicitor in the Professional Standards Division of The Law Society of New South Wales. 47 On 24 October 2001 Ms Young wrote to Mr Levitt explaining the Law Society Professional Conduct Committee's decision to dismiss the claim. In giving those reasons, Ms Young reflected on the true motivation behind the making of the complaint. She wrote: "What the complainants really want is access to that part of the proceeds of sale of the Norton Street property to cover their contribution to the settlement of the claim by Westpac Bank against the guarantors of the joint venture. This, they say, would truly reflect the agreement between the partners of the joint venture when they agreed to transfer their interest in the property and other shares etc. to Mr and Mrs Parisi." 48 This appears from the evidence to be correct. Perhaps this purpose was not as well articulated as it might have been, but, with the explanation given in the letter of 24 October 2001, I do not see that Tony Nigro used the complaints procedure inappropriately. Mr Levitt's letter of 4 July 2001, written before the complaint was dismissed, provides details of the background to the complaint. Relevantly it reads: "It was agreed between Mr and Mrs Nigro with the other co-directors of the Gieffe group, including Mr and Mrs Filippo Parisi, that in consideration of Mr and Mrs Filippo Parisi acquiring the shares and property of the Group, they would discharge all of the debts of the companies and the personal liabilities of the other directors, including Mr and Mrs Antonio Nigro and the personal liability of Mr Vito Nigro as surety. … It had been agreed by Filippo Parisi on behalf of his wife, with Mr and Mrs Nigro on behalf of themselves and Vito Nigro, that immediately upon the sale or refinance of the property by the Parisis, the Westpac debt would be discharged." 49 This passage does not spell out that Tony Nigro was by his complaint protesting about Phillip Paris's failure to account for money due pursuant to the 1996 agreement, as Tony Nigro understood it to be. However, it cannot be said after reading this that Tony Nigro was pursuing in any way a direct entitlement to the proceeds of sale of 198-200 Norton Street Leichhardt. Mr Levitt says in the letter that the Parisis had acquired the shares of the property of the Group. In this light the complaint is perhaps poorly explained but it is not inconsistent with the claims the plaintiffs bring in these proceedings. I therefore do not see this as a matter reflecting adversely on Tony Nigro's credibility. 50 The defendants also point to Tony Nigro's conduct in proceedings brought by Westpac Banking Corporation as inconsistent with the case as he now seeks to advance. Those proceedings were brought by Westpac for the recovery of loans which were secured in part over Vito Nigro's house. In the settlement of those proceedings in 1999, Tony Nigro paid $50,000 to release the security over Vito Nigro's property. Part of the present claim is to recover that amount, being an amount that should have been paid by the business and not by Tony Nigro personally. 51 The defendants question why Tony Nigro did not bring a cross-claim in the Westpac proceedings. They say it can be implied that Tony Nigro's failure to do so is indicative of his knowledge that no such liability existed. In cross-examination Tony Nigro said that he paid the amount to prevent Westpac evicting his father for a debt his father did not owe. 52 The reason given by Tony Nigro for paying Westpac and not seeking to pursue a cross-claim is plausible. Tony Nigro was entitled to bring separate proceedings and has now done so. Credibility - Phillip Parisi 53 The evidence of Phillip Parisi was inconsistent and in general overly cautious. He often needed to be directed to answer the questions put to him. He nevertheless continued to provide unresponsive answers as part of a continuing crusade to get his own story across. 54 I shall give two examples of this. The first example relates to his knowledge of the property market in 1996. It is pertinent to set out the relevant passage from the transcript. This lengthy extract gives a good indication of the argumentative an evasive stance that Phillip Parisi took throughout the whole of Mr Lee's cross-examination: "Q. There was nothing remarkable about the state of the market between December 1996 and February 1997 for commercial property in or around Camperdown, as you understood it, which would have meant that there was a significant change in commercial property value, is that right? A. We - no, the significant change came about with a tenant because back in 96, there was no tenant and there was no - and the property needed major refurbishing. Even - even so, this 2.9 it could be achieved with a tenant, but without a tenant, it was not even worth two million dollars and we tried that back in October at the auction. So what I think - and what happened four months later, it's - things change from one day to the other.

Q. Mr Parisi, I was asking you a question about your understanding being a businessman in Sydney of Camperdown property values between December 1996 and February 1997, do you understand the question? A. Yes.

Q. I wasn't asking you about this property. I am asking you to comment on the proposition that there was nothing remarkable which caused property values, and in particular commercial property values, to increase markedly during that period? A. No, I - I disagree with that. The market changed due to the fact that the industry was moving in a view that those - at that time Sydney got the Sydney Olympic. Now, because of that, the market started to change and it kept on changing every - every - every month in every year.

Q. All right. Would it accord with your recollection that Sydney was awarded the Olympic Games in the end of 1995? A. Yes.

Q. And certainly by December 1996, you were saying it was a dynamic property market, is that what you tell his Honour, where things were moving, prices were increasing, is that right? A. Well, that can only be from the event and if you - if you notice, since 96, 97, 98, we have been on a - on a - on a market raise.

Q. And so-- A. And - sorry - and the interest has gone lower than what it used to be. Interest back in 96 and 95 and 94 were 14, 15, 16 percent, 20 percent and so on. At the time of 96, at the end of 96, the interest was, with the loans we had, around 14 percent and 15 percent, plus if there was a default it would have been another four percent attracted of - on the mortgage.

Q. And so because of what you understood to be this - correct me if this doesn't accord with your evidence - rapidly increasing property market as of December 1996, you believed that real property and commercial real property was a good investment? A. At that time, all I believed that we had a summons to service from Mercantile ING and they had given a certain deadline to resolve the problem and down - otherwise they would have taken over the properties and sell them themselves at auction. We didn't have options or thoughts or what was best at that time.

Q. Did you understand my question? A. I understood your question.

Q. Could you please answer it? A. Repeat the question again, please.

Q. You thought, because of what you regarded as a rapidly increasing property market in December 1996, that property, and in particular commercial property, was a good investment? A. I didn't look at it on an investment basis. I looked at it on resolving a problem.

Q. I am not asking you about the problem, its resolution or otherwise. I am asking for your view as of December 1996 about a particular type of investment, do you understand what I am asking you? A. The - the answer you asking me, I did not take all the property for - as a choice. I took over the properties to solve a problem.

Q. Mr Parisi, if I could interrupt you? A. Yes.

Q. This is going to be a lot shorter if you respond to the question I ask. A. Well, I'm not qualified to - to give you an answer on the view of what the market was going and what it was going to be.

Q. Mr Parisi, you assisted his Honour with your analysis of the Sydney property market from the date of obtaining the Olympics through to, I think, the millennium, do you remember giving that answer to his Honour? A. Sure, sir, but upon that time, we had a particular problem with this particular property." 55 The inconsistent line Phillip Parisi took regarding what he did or did not perceive as the nature of the property market in Sydney in 1996 aptly demonstrates his attempts to tailor his evidence to best suit his case. 56 The second example relates to the circumstances surrounding the Deed of Covenant Guarantee and Indemnity: "LEE: Q. Isn't it true that at the same time documents were signed to evidence the settlement with Resi-Statewide and the bank, you signed a further set of documents which were headed deed of covenant guarantee and indemnity? A. No, that document was never signed. I recall that document. That document reflected the - mainly to secure the debt of the three couples that mortgaged their houses to the Bank of Melbourne. When that document was discussed, even with Tony Nigro - and I - I recall that, because it did not reflect whatever - whether Tony Nigro or Pirrello or myself, the other three parties, because we all already had committed ourselves prior to the three couples mortgaging their houses for when the agreement was done with the Bank of Melbourne or Resi, it did not reflect exactly to protect everybody because as that document was reflected to protect those three couples mainly and not the others, that document was not signed because one of those three couples was a Mr Lee Hilder, he was not part of the Gieffe group, so that document reflected that the Gieffe group would have been responsible for Mr Hilder's loan as well when it wasn't. Mr Hilder was a share into the project of the loan of the Bank of Melbourne. That's why that document was never signed. I never signed it, I don't think any of the others signed it, because I have never seen the document ever signed or any time after that. And Mr Nigro recalls that very clearly he never signed it because it did not reflect in the benefit of Mr Nigro or myself, or Pirrello, or in actual fact even the other two Parisis, are due to the fact that Mr Hilder was part of that deed and Mr Hilder was not part of the deed of the Gieffe groups. That's why that document is not in existence. The intention was to try and document the - the group of Gieffe and consolidate what each director contributed into the Gieffe group but that particular document was not the document and from then, it never happened." 57 This example demonstrates how Phillip Parisi failed to answer questions directly. Although in isolation such a response would be of little importance, the continued advocacy from the witness box in this style was telling. Evidence of Bob Parisi and John Parisi 58 To a more limited extent, as I have said, the two other Parisi brothers, Bob and John, also gave evidence. Each brother with his wife held a 20% beneficial interest in the business prior to the 1996 agreement. Under the agreement they also transferred their share in the business to their brother Phillip. Despite the proximity of each of them to the events in question, their evidence was ambiguous and of no particular assistance to the construction of the 1996 agreement. Bob Parisi gave the following evidence under cross-examination: "Q. Your view at that time was that each of the ex partners were responsible for the private debt that they owed, that is, in 1997 each of the five persons were responsible for what I describe as the private debt? A. That's right.

Q. That is the debt that they owed privately? A. Yes.

Q. And that the other type of debt, the business debt was the debt that was owed by your brother, Phillip and his wife, following the arrangements that were entered into? A. That's right.

Q. And you knew that there was some private debt that Mr Nigro had in relation to, I think, a housing loan; that's right, previously? A. Like everybody else, yes." 59 Mr Lee contends, that this evidence is consistent with the terms of the agreement as put by his client. However Mr Gruzman for the defendant argues that any suggestion of the sort is inconsistent with what Bob Parisi said in re-examination: "GRUZMAN: Q. You were asked some questions about the private debt and you were referred to the other debt, the business debt owed by Phillip and his wife. What business debt was that that you were referring to and what period of time? A. The business debt I am talking about would have been the Camperdown properties and the Norton Street properties." 60 A similar pattern emerged in John Parisi's evidence. During his evidence the following exchange took place: "Q. Let us take Mr Nigro, for example. I want you to assume that over Mr Tony Nigro's home, there was private debt, that is home loan, expenses that he may have incurred to do with holidays or buying presents for people or whatever, but there was also debt that was directly related to the activities of the business, do you understand? A. Yes.

Q. You drew a big distinction in your mind between that private debt and that business debt; that's right, isn't it? A. There is a difference, yes.

Q. And you expected the company to be liable for that business debt but not liable for that private debt in 1994 and 1996; that's right, isn't it? A. I assume so, yeah.

Q. And your understanding in 1996, when the parting of the ways happened, was that it was only the business debt for which the company continued to remain primarily liable but not that private debt; that's correct, isn't it? A. Yes.

GRUZMAN: Q. You were asked a question before lunch to the effect it was either put to you or you answered that in the agreement of December 1996, your brother Phillip was taking the liability to pay back the money owed on the properties? A. Yes.

Q. What properties were you referring to there? A. The Camperdown Pyrmont Bridge Road building and two of the Norton Street properties.

Q. Any other properties? A. No." 61 To my mind, neither Bob Parisi nor John Parisi was particularly engaged by the negotiations of December 1996. They relied primarily upon their brother to protect their interests. This is reflected in the ambiguous and inconsistent nature of their evidence. The attempts during re-examination to supplement the evidence given in cross-examination do not change the clear impression that each was genuinely of the view that their brother Phillip was responsible for all of the business debt after the 1996 agreement - including business debt secured over each of the family homes Vince Pirrello's failure to give evidence 62 As I have already noted, Vince Pirrello, the third plaintiff, did not give evidence, although his affidavit had been filed in advance of the trial. It should also be noted that, although parties to the proceedings, none of the wives gave evidence, it being common ground that the business was run by the husbands, with little input from the wives. No adverse inference was sought to be drawn from the failure of the wives to give evidence. 63 In respect of Vince Pirrello, however, the defendants submitted that it is appropriate for the Court to draw an inference of the kind referred to in Jones v Dunkel (1959) 101 CLR 298. They say that Vince Pirrello is a vital witness and should have given evidence of what was agreed in 1996. There is no doubt that his presence during the negotiations, which is common ground between the parties, is indicative of the importance of his evidence. It follows that, in normal circumstances, the adverse inference the defendants suggest would be drawn. But these are not normal circumstances. 64 The plaintiffs do not deny that Vince Pirrello is a witness who should have been called. However, they say that there was a valid explanation for not tendering evidence from him. Police records subpoenaed during the trial relate to an incident on 12 September 2004, two days prior to the start of the hearing. Included in the documents is a statement Vince Pirrello made to police on that day recounting his having been robbed by two armed assailants in the car park of his current business premises. According to the statement, one was armed with a knife and the other with a syringe filled with what appeared to him to be blood. After taking his wallet and the day's takings - which amounted to $5,800.00 - the two escaped in his car. 65 The defendants do not suggest that these events involving Vince Pirrello did not occur. Their main contention is that, despite those events, Vince Pirrello was still capable of undergoing cross-examination or at the very least giving instructions to adjourn the proceedings until he was well enough to proceed. 66 After the incident Vince Pirrello saw his general practitioner, Dr Merlino. It was Dr Merlino's evidence that Vince Pirrello was extremely distressed on 12 September. Following examination, Dr Merlino formed the view that Vince Pirrello was suffering from post-traumatic stress disorder with associated panic attacks. He saw Vince Pirrello again on 13 and 14 September and confirmed that diagnosis. 67 Dr Merlino expressed an opinion that Vince Pirrello would be unfit to attend to or participate in an activity that was stressful in itself for at least one month, that is, until mid-October 2004. He regarded Vince Pirrello as having "a reasonable prognosis for the gradual improvement over the next month or two." 68 Tendered in support of the diagnosis were extracts from two medical publications: General Practice (3rd ed), Murtagh J, The McGraw-Hill Companies, pp1256-1257 and Primary Care, Singleton J et al, Pippincott Williams & Wilkins pp658-659. During cross-examination Mr Gruzman produced to Dr Merlino a publication entitled Diagnostic and Statistical Manual of Mental Disorders (4th ed) ("DSM-IV"). He asked Dr Merlino to compare his diagnosis with the symptoms described in that text for "panic attack", "post-traumatic stress disorder" and "acute stress disorder". Dr Merlino conceded that his diagnosis was not consistent with all indicia set out in DSM-IV. He nevertheless stood by the diagnosis, noting that the DSM-IV classifications were for the use of specialist psychiatrists, not general practitioners like himself. Furthermore, he said that his diagnosis was in accordance with the medical texts that he routinely referred to in practice. 69 I am satisfied that Dr Merlino's diagnosis of Vince Pirrello was conscientiously reached and that the court may rely on it. I accept his opinion that Vince Pirrello was not fit to participate in any stressful activity for at least one month. Cross-examination must be accepted as involving stress. I find that Vince Pirrello was in no fit state to give evidence in the days following his attack. I regard his circumstances as a valid explanation for the failure to give evidence. 70 But that is not the end of the matter. The defendants also argue that it was incumbent upon the plaintiffs to request an adjournment until Vince Pirrello was able to give evidence, given the importance of his evidence in the light of the divergent recollections of Phillip Parisi and Tony Nigro and the minimal documentary evidence. In support of this proposition, the defendants in part rely on Dr Merlino's evidence: "GRUZMAN: Q. I'll put it another way. Are you of the view that on Monday, 13 September Mr Pirrello would have had the clarity of mind to be able to receive advice from solicitors in relation to a proposed course of action and give instructions to change solicitors? A. Again it depends on the complexity of that function. As I said before, if it's complex I don't think he would have been fit to do that.

Q. Are you of the view that on Monday, 13 September Mr Pirrello would have had the clarity of mind to be able to give instructions to his solicitors to apply for an adjournment of the proceedings so that he could give evidence? A. Well, seeing that he was in a position of stress I would say he should have sought an adjournment.

Q. And are you of the view that he would of had the clarity of mind to be able to give instructions to seek an adjournment so that he could give evidence at a later time? A. Well, that's simple. Course he should have. I don't think there's any big decision in that. I mean, if you're not fit to be subjected to any extra stress or give a simple direction to your solicitor "Look, I ask for an adjournment because I'm not fit to attend that court" then I don't see any problem with that."

71 Mr Gruzman says that the plaintiffs made a tactical decision to continue with their case despite the unavailability of Vince Pirrello, as they were entitled to. However as the price of making that decision it is open for the court to draw a Jones v Dunkel inference. To avoid such a result the plaintiffs should have requested an adjournment - a request that Vince Pirrello was capable of instructing his lawyers to make. 72 In response to this the plaintiffs say that the requirement that they should have sought an adjournment to avoid a Jones v Dunkel inference does not sit well with the reality in which litigants operate. Given the tightness of court lists, the availability of practitioners, the vagaries of prognosis of illness and the expense of superior court litigation such a requirement would lead to excessive and unnecessary delay. 73 In the present case one would, prima facie, be justified in saying that the plaintiffs should have sought an adjournment until Vince Pirrello had recovered. However I agree with the plaintiffs that such a view would not be consistent with the circumstances in which litigants find themselves. Any adjournment in this case would inevitably have meant a delay of several months. Conclusions 74 For reasons stated, I draw no adverse inference from the failure of Vince Pirrello to give evidence and, in case of conflict, I generally prefer the evidence of Tony Nigro to that of Phillip Parisi. The circumstances and documentation surrounding the advance of the loans secured on the homes of Tony Nigro, Vince Pirelli and Vito Nigro show that the borrowers were the companies and that the individuals merely provided accommodation by way of furnishing security required by the lenders. None of the four documents produced and used in connection with the December 1996 meetings contained a complete or definitive statement of the financial position of the business. But there had existed since at least 1994 a practice and understanding which saw all the partners carry secondary responsibility for the "business" loans secured on one of the family homes. The two December 1996 documents which recognised that indebtedness as business indebtedness in the negotiation of the parties' separation represent, in my view, a correct reflection of the position as it existed at the time of that negotiation. 75 With matters in that state, it must have been the common intention and expectation of the parties, as objectively assessed, that the "business" debt secured on the respective homes would be treated in the separation in the same way as the "business" debt secured on the Camperdown and Leichhardt properties owned by entities of the business. The only thing that distinguished "business" debt of the first kind from "business" debt of the second kind was the form of the security held by the creditor. The borrower was, in each case, one of the business entities, not one of the individuals. It was not as if an individual had himself obtained loan funds from the relevant financial institution and on-lent them to the business entity to create something that he could regard as an asset and, as it were, leave invested or not as he wished. Each individual, by making his home available as security for a loan to one of the business entities, accepted the position of a guarantor and provider of third party security. And that state of affairs is one that provides a rational and commercially sensible basis for the internal arrangement referred to in Mr Cordato's letter of August 1994. 76 The contention of the defendants is not that the individual providers of third party security for indebtedness of the business entities had, on separation, agreed to leave their support for that indebtedness in place, either indefinitely or for a limited time. Such a contention, if confined to some limited period, might be consistent with ordinary expectations in such circumstances. The defendants' contention is, rather, that the departing partners would actually take over and assume primary responsibility for part of the business debt in relation to which they had, to that point, occupied a position of secondary liability as providers of third party security. That would have involved a radical and adverse change of position by those individuals. 77 The circumstance that a particular part of the business debt was secured on a particular partner's home cannot be regarded, in any objective sense, as having indicated that that individual intended, as part of the separation, to accept a radical and adverse change of position of the kind described. The amount of the business debt secured on a particular home was a fortuitous product of historical events. There was never any conscious decision as to the relativities among partners in that respect. An agreement that one partner would, for the future, take over and conduct the business to the exclusion of the others must have meant, in general terms, that the acquirer would, for the future, become entitled to all the benefits and advantages inherent in the business and would, in like manner, accept responsibility for all the liabilities and detriments inherent in the business. Nothing in the evidence except the testimony of Phillip Parisi would support any finding at odds with this logical outcome. For reasons I have stated, I prefer the alternative view of matters emerging from the evidence of Tony Nigro. 78 Once that position is reached, it becomes necessary to address the question of timing. It is the contention of the plaintiffs that it was a term of the agreement that the defendants would, at a particular time, arrange for the plaintiffs to be relieved of the burdens they had assumed by making their homes available as security for business debt. There can be no real doubt that if, as I have found, the primary obligation is as the plaintiffs contend, there would also be a contractual term as to timing. And again the term for which the plaintiffs contend (that relief would be forthcoming when the business properties were sold or the indebtedness secured on them was refinanced) is so consistent with an orderly resolution of the situation that the evidence supporting a finding to that effect should be preferred to the evidence to the contrary and the finding should accordingly be made. 79 I hold that the agreement made in December 1996 was the agreement for which the plaintiffs contend, as set out in paragraph 10(1) of these reasons. Having regard to paragraphs 15, 16 and 17 of the defence, June 1998 is accepted as the time relevant for the purposes of item (v)(c) of paragraph 10(1). It follows that breaches of contract were committed at that point by reason of the defendants' failure to arrange payments necessary to cause the mortgages over the homes to be discharged. 80 It remains to deal with the claim for interest. The defendants say that there has been no explanation by the defendants for the failure to commence these proceedings until many years after the plaintiffs became aware of the events said to be a breach of the agreement. Given this, they say that there should be no order for payment of interest. 81 Mr Lee for the plaintiffs denies that there was any relevant delay in the plaintiffs prosecuting their claim. The liability to discharge the debts arose in June 1998. Following this in 1999 was the settlement of the proceedings with Westpac involving related matters. The present claim was then brought in 2002, within the limitation period of six years (Limitation Act 1969 s.14). 82 Even if the plaintiff was guilty of delay the plaintiffs say this would not prevent an award of interest. As noted by Giles J (as he then was) in NRMA v Morgan (No 3) [1999] NSWSC 768 at [12]: "Interest is awarded in the exercise of the discretionary power in s94 of the Supreme Court Act 1970. The power is to be exercised in order to provide compensation, not to punish, and on the basis that the defendant has had the benefit of not paying the capital sum and the plaintiff has had the detriment of not having it: Bennett v Jones (1977) 2 NSWLR 355 at 367-70. Delay occasioned by a plaintiff, while relevant, does not mean no interest during the period of delay, and some particular economic disadvantage occasioned by the delay and material to the exercise of the discretion must be shown; ibid; Perri v Flavell (No 2) (NSWCA, 20 September 1995, unreported)." 83 There being no economic disadvantaged advanced in this case by the defendants, interest should be allowed. 84 Mr Lee also points to the rationale behind an award of interest as supporting the plaintiffs' claim. The principle, he says, was accurately summarised by Barwick CJ in Ruby v Marsh (1975) 132 CLR 642 at 644: "The purpose of giving courts the power to award interest on damages is to my mind twofold, and neither aspect of the purpose should be lost sight of. In the first place, the successful plaintiff, who by the verdict has been turned into an investor by the award of a capital sum, and whose claim in the writ has been justified to the extent of the verdict returned, ought in justice to be placed in the position in which he would have been had the amount of the verdict been paid to him at the date of the commencement of the action. In the second place, the power to award interest on the verdict from the date of the writ is to provide a discouragement to defendants, who in the greater number of actions for damages for personal injuries are insured, from delaying settlement of the claim or an early conclusion of proceedings so as to have over a longer period of time the profitable use of the money which ultimately the defendant agrees or is called upon by judgment to pay. Each of these reasons, incidentally, in my opinion, calls for the judge to award a rate of interest related to the market place subject to the limit allowed by the legislature. There can be no basis for the award of some nominal rate of interest, unless of course there is good cause for so doing in the special circumstances of the particular case." 85 Mr Lee says that the defendants have had the benefit of the sum they should have paid to the plaintiffs. It follows that an award of interest is necessary to truly compensate the plaintiffs: Haines v Bendall (1991) 172 CLR 60. 86 I agree with Mr Lee's submissions. I do not see anything in this case that should stand in the way of exercise of the court's discretion to award interest. Damages, interest and other relief 87 In relation to damages to which the Nigro parties are entitled, Mr Lee submitted as follows: "The damages occasioned to the Nigros by the breach is the amount: a. required to be paid to discharge the Business liabilities of the Nigros under the mortgage over the Concord Property as at the time of the settlement of the sale of the 198 Norton Street Property in June 1998 together with interest; b. the amount of $50,000 paid to discharge the liabilities secured by the Ludgate Street Property Mortgage together with interest on that amount from the date of payment and the legal costs associated with the Westpac proceedings together with interest from the date of payment of those costs." 88 The submission as to damages in relation to the Pirrello parties was: "The damages occasioned to the Pirrellos by the breach is the amount required to be paid to discharge the Business liabilities of the Pirrellos under the mortgage over the Abbotsford Property as at the time of the settlement of the sale of the 198 Norton Street Property in June 1998 together with interest." 89 The plaintiffs also seek a declaration reflecting the fact that the Nigro parties and the Pirrello parties are entitled to an indemnity for all liabilities of the business; see item (v)(b) of paragraph 10(1) above. 90 The plaintiffs have made out an entitlement to damages and a declaration in accordance with those submissions. As to interest, the plaintiffs should have no undue advantage and should only be fairly compensated for being out of funds. I am prepared to hear submissions as to the appropriate rate of interest if it cannot be agreed. 91 It should be possible for the parties to agree the calculations necessary to arrive at a figure for damages and interest in each case or, at least, the major components of the calculation. They should also be able to agree the terms of a declaration which sufficiently describes the "business" liabilities in respect of which the plaintiffs are entitled to be indemnified by the defendants. 92 I direct that the parties attempt to agree an applicable rate of interest and the terms of orders appropriate to give effect to these reasons and that (a) a joint statement (incorporating, so far as possible, the terms of appropriate orders) of matters agreed; and (b) each party's separate statement incorporating the terms of orders for whom that party contends as to matters on which there is no agreement

be filed by delivery to my Associate by 31 January 2005. 93 There is no reason why costs should not follow the event and it is my intention to order that the defendants pay the plaintiffs' costs when I make orders as to damages and interest and the declaration. **********

Last Modified: 12/15/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.