Page v Conneely, in the matter of Shyzi Pty Ltd [2025] FCA 1646

10.16 Issue 7(a) - Is the Shyzi Receivers' appointment invalid within s 418A of the Act on the ground that Shyzi is not indebted to CLAH?

1. This issue falls to be determined by reference to the proper construction of the Shyzi Securities which I have addressed in part 10.10.2 of these reasons and applying the legal principles outlined in part 10.3 of these reasons. In short, where there is doubt on a specific ground about whether the purported appointment of a person as receiver of property of a company is valid, the Court may, on application, declare whether or not the appointment was valid, whether on the ground specified in the application or some other ground: s 418A. The right of a secured creditor to appoint a receiver is to be determined by reference to the terms of the security agreements under which the appointment was made. The person purportedly appointed as receiver of property of a corporation, the corporation or any of the corporation's creditors has standing to apply under s 418A(1) of the Act for an order under s 418A(2). Proof of present indebtedness is not essential to establish that the appointment of a receiver was valid for the purposes of s 418A(1) of the Act.
2. The plaintiffs have discharged their onus in raising the requisite level of doubt about the purported appointment of the Shyzi Receivers. That being so, the onus shifts to the defendants to demonstrate that the appointment of the Shyzi Receivers was valid.
3. The plaintiffs directed their contentions to the specific ground that Shyzi was not indebted to CLAH at the time of the appointment of the Shyzi Receivers. The necessary predicate upon which the plaintiffs' argument is based is that on the proper construction of the Shyzi GSA the power to appoint receivers was conditioned on Shyzi being indebted to CLAH at the time of the appointment. The factual contention, assuming the plaintiffs' construction is correct, is that the plaintiffs have established that Shyzi was not indebted at the time the Shyzi Receivers were appointed.
4. On the basis of the findings I have made, the plaintiffs' challenge to the validity of the appointment of the Shyzi Receivers under the Shyzi GSA must be dismissed. My reasons are as follows.
5. First, for the reasons I have given, on the proper construction of the Shyzi GSA, the power to appoint a receiver was enlivened upon the happening of an Event of Default.
6. Second, for the reasons I have given, on the proper construction of the Shyzi GSA, CLAH had the option upon the occurrence of an Event of Default to declare any debt owing by Shyzi to be immediately due and repayable. However, the power to appoint a receiver was not conditioned on Shyzi's debt being immediately due and repayable, whether by the making of a declaration or otherwise.
7. To construe the Shyzi Securities in this way accords with the wording of the agreement and is commercially coherent. It provides the secured party with a flexible form of enforcement following an Event of Default. CLAH is empowered to act swiftly to appoint receivers to protect its interests in the Collateral. Once appointed, the Shyzi Receivers' powers are not limited to powers related to the recovery of present debt and the sale of the Collateral. Upon appointment, a receiver has the right in relation to any property to which the receiver is appointed to do everything that the Grantor may lawfully authorise an agent to do on behalf of the Grantor in relation to that property: cl 14.3, Shyzi GSA. That relevantly includes the investigatory powers conferred by cl 12.1 of the Shyzi GSA which may be exercised to investigate the Collateral, financial affairs and condition and viability of the business of Shyzi as the security provider.
8. The relevant parallel provision of the Shyzi Mortgage empowers a receiver with any powers that are legally capable of being conferred on receivers or receivers and managers and anything that the Mortgagee can do after an Event of Default: cl 14.3, Shyzi Mortgage. The Shyzi Mortgage confers analogous investigatory powers which may be exercised to investigate the circumstances of an Event of Default and the viability of any business of Shyzi: cl 11, Shyzi Mortgage.
9. If CLAH does not exercise the option to declare such debt as exists at that time to be due and immediately payable, then the Secured Money will be due in accordance with the terms on which it was advanced. If CLAH does declare extant debt to be immediately due and payable then the payment of the debt will be accelerated accordingly. The key point for present purposes is that CLAH's power to appoint receivers under the Shyzi GSA is not confined to the circumstance of there being present debt that is immediately due and payable.
10. Third, I am satisfied that as at the date of the appointment, there was a relevant Event of Default upon which Shyzi was entitled to rely to exercise the power to appoint the Shyzi Receivers. I will address the evidence that leads me to that conclusion in part 10.16.2.1 below.
11. Fourth, and in the event that contrary to my conclusion regarding the proper construction of the Shyzi GSA the power to appoint a receiver conferred by Shyzi Securities was conditioned on the existence of an immediately due and payable debt, the evidence establishes that Shyzi was indebted to CLAH at the date of the appointment and that debt was payable on demand. No written demands were made. That is common ground. I do not regard Mr Baker's evidence that he repeatedly made oral demands as reliable given the findings I have made as to his credit and in light of the absence of supporting references in the contemporaneous communications between the parties as to the making of repeated demands.
12. For these reasons, the validity of the appointment of the Shyzi Receivers turns on whether there was an Event of Default which enlivened CLAH's power to appoint a receiver under the Shyzi GSA as at the date of the appointment of the Shyzi Receivers.

10.16.2 Alleged extant Events of Default at time Shyzi Receivers appointed

1. The defendants rely on three Events of Default as enlivening the power to appoint receivers under cl 14.1 of the Shyzi GSA. CLAH relied on the Shyzi GSA in making the appointment. In closing submissions, the parties also addressed the parallel power in cl 12.1(2) of the Shyzi Mortgage to appoint receivers. That is because of the interrelationship between the two agreements.

10.16.2.1 Failure of a Transaction Party to comply with a statutory demand: Event of Default arising under the cl 10.1(d) of the Shyzi GSA and cl 9.5 of the Shyzi Mortgage

1. The defendants first rely on the occurrence of an Event of Default under cl 10.1(d) of the Shyzi GSA, with the relevant parallel provision being cl 9.5 of the Shyzi Mortgage.
2. Pursuant to cl 10.1(d) of the Shyzi GSA, it is an Event of Default when a Transaction Party becomes Insolvent. Transaction Party is relevantly defined to mean the Debtor, which is in turn defined to be Carrabolla. Carrabolla would otherwise have been caught by that part of the definition of Transaction Party that extends the definition to each other person who gives a Collateral Security. Carrabolla relevantly gave Collateral Security in the form of the Carrabolla Securities. As I have mentioned, the Carrabolla Securities were discharged on 26 July 2016.
3. The definition of Debtor in the Shyzi GSA is static in that it specifically identifies Carrabolla as the Debtor and does not tie that definition to the currency of the Carrabolla Facility: Shyzi GSA, cl 1.1(p) and Schedule 1, Item 2. Upon the discharge of the Carrabolla Facility and the Carrabolla Securities, there was no express provision in the Shyzi Securities that would result in Carrabolla ceasing to be a Transaction Party within the meaning of that term in the Shyzi GSA, particularly given the specificity of the definition of Debtor.
4. The definition of Secured Money in the Shyzi GSA is very broad. It includes money owing or payable (actually or contingently) by Carrabolla to CLAH or which may become owing or payable (actually or contingently) by Carrabolla to CLAH for any reason or on any account whatsoever at any time under or in connection with the Transaction Documents including money owed by a Transaction Party in its own right or capacity. Given the breadth of the definition of Secured Money and the import of the phrase "in connection with" there is no basis on which to construe the definition of Debtor as being subject to an implied term that upon expiration of the Carrabolla Facility and discharge of the Carrabolla Securities, Carrabolla ceases to be the Debtor for the purpose of the Shyzi GSA and as such a Transaction Party under the Shyzi GSA. The plaintiffs did not submit that Carrabolla was not a Transaction Party for the purpose of assessing whether an Event of Default had occurred under s 10.1(d) of the Shyzi GSA.
5. The definition of Insolvent, as set out in cl 1.1(dd) of the Shyzi GSA and summarised at paragraph [577]0 above, relevantly includes if an application or order has been made for a body corporate to be wound up (cl 1.1(dd)(i)(E)) or if a Transaction Party is taken under s 459F(1) of the Act to have failed to comply with a statutory demand (cl 1.1(dd)(i)(F)).
6. Pursuant to cl 9.5 of the Shyzi Mortgage, it is an Event of Default for any Insolvency Event to occur in relation to a Transaction Party. As addressed at paragraph [622] above, the definition of Insolvency Event under cl 1.1(27) of the Shyzi Mortgage includes an application (not being contested) being made to a court for an order that a body corporate be wound up (cl 1.1(27)(a)) and where a body corporate is "presumed insolvent under any law" (cl 1.1(27)(d)).
7. The defendants rely on Carrabolla's failure in 2018 to comply with a statutory demand and being the subject of a winding up application as the circumstances which attract the definition of Insolvent for the purposes of cl 10.1(dd) of the Shyzi GSA and cl 1.1(27) of the Shyzi Mortgage. The defendants contend that CLAH was entitled to appoint the Shyzi Receivers in September 2020 as a result of the events in 2018 constituting a relevant Event of Default under the Shyzi Securities.
8. The plaintiffs submit that the defendants have not demonstrated that Carrabolla failed to comply with a statutory demand in June 2018 or otherwise. Further, that even if the defendants demonstrate that Carrabolla did fail to comply with a statutory demand on some date prior to 19 June 2018, CLAH should not be permitted to rely upon that alleged event as the basis for appointment of the Shyzi Receivers over two years later. The plaintiffs submit that any presumption of insolvency under s 459C(2) of the Act based on that winding up application would have ceased to operate upon the dismissal of the winding up application. In addition, the plaintiffs submit that the Event of Default had ceased to subsist under the terms of the Shyzi Securities: cl 1.2(h) of the Shyzi GSA and cl 1.2(8) of the Shyzi Mortgage.
9. The evidence in relation to this issue is as follows.
10. On 19 June 2018, the Deputy Commissioner of Taxation lodged with ASIC a Form 519 "Notification of Court Action relating to winding-up" in respect of the Commissioner's application to wind-up Carrabolla. The Commissioner's application was made under s 459P of the Act. Carrabolla had failed to comply with a statutory demand during the period for compliance with that demand under s 459F(1) of the Act. The ASIC company search is admissible as proof of the information contained therein by reason of s 1274B(2) of the Act. In any event, Ms Page admitted that an application to wind up Carrabolla was made on 19 June 2018. Ms Page gave evidence that winding‑up proceedings were commenced by the Commissioner in relation to a statutory demand issued by the Commissioner on Carrabolla in March 2018 for the payment of a debt of about $120,000.
11. The winding up proceeding was resolved on 19 December 2018 when the application was dismissed. The notification to ASIC of the dismissal of the application is recorded in the ASIC company search for Carrabolla. Ms Page said that she thought from memory that the winding-up application remained on foot for some weeks or months before they were dismissed. That is consistent with the company search for Carrabolla which shows that there was a period of about six months between the date of the notification of the winding-up application and the notification of the dismissal of that application.
12. I reject the plaintiffs' submissions as to the failure to prove that Carrabolla did not comply with a statutory demand in June 2018.
13. The plaintiffs' submission that CLAH ought not be permitted to rely on Carrabolla's failure to comply with a statutory demand on some date prior to 19 June 2018 to appoint the Shyzi Receivers over two years later is not supported by any reference to authority. To impose an arbitrary temporal limitation of this kind is not supported by the text of the Shyzi agreements.
14. What is relevantly required under the Shyzi GSA for the purposes of cl 14.1 of the Shyzi GSA is that the Event of Default must have occurred prior to the appointment of the Shyzi Receivers on 11 September 2020 in order to be relied upon enlivening the power: see the express words "at any time after an Event of Default occurs" in cl 14.1(a)(ii) of the Shyzi GSA. I do not accept the plaintiffs' submission that an Event of Default must have continued to subsist as at 11 September 2020 in order to be relied upon as the basis for the Shyzi Receivers' appointment on that day.
15. The dismissal of the winding-up application does not detract from the fact that Carrabolla failed to comply with a statutory demand and that an application was made which could result in Carrabolla being wound up. The defendants further submit that these two circumstances are sufficient to attract the definition of "Insolvent" for the purposes of cl 10.1 of the Shyzi GSA and trigger CLAH's right to seek immediate repayment under cl 13 of the Shyzi GSA. Clause 1.2(h) of the Shyzi GSA and cl 1.2(8) of the Shyzi Mortgage provide that an Event of Default continues until it has been waived in writing by CLAH or remedied to CLAH's reasonable satisfaction. There is no evidence to suggest that CLAH expressly and in writing waived this Event of Default, nor that it was remedied to CLAH's reasonable satisfaction. Accordingly, the plaintiffs' reliance on cl 1.2(h) of the Shyzi GSA and cl 1.2(8) of the Shyzi Mortgage is misplaced. These clauses operate where CLAH waives, in writing, an Event of Default that has occurred or where the Event of Default is remedied to CLAH's reasonable satisfaction. A positive act on the part of CLAH is required. The evidence does not support that CLAH expressly and in writing waived this Event of Default or that it was remedied to CLAH's satisfaction. I repeat the reasons I have given in part 10.5.2 of these reasons.
16. For these reasons, I accept that under s 459F(1) of the Act, Carrabolla is taken to have failed to comply with a statutory demand for the purpose of cl 1.1(dd)(i)(F) of the Shyzi GSA and accordingly an Event of Default had occurred under cl 10.1(d) which CLAH was entitled to rely on to justify the appointment of the Shyzi Receivers for the purpose of defending the application under s 418A of the Act. Similarly, I accept that an Insolvency Event had occurred for the purpose of cl 1.1(27) of the Shyzi Mortgage which CLAH may rely on as an Event of Default under cl 9.5 to justify the appointment of the Shyzi Receivers had it chosen to do so.

10.16.2.2 Creation of another Security Interest: Event of Default arising under the cl 10.1(j) of the Shyzi GSA and cl 9.6 of the Shyzi Mortgage

1. The defendants also allege that an Event of Default occurred under cl 10.1(j) of the Shyzi GSA and cl 9.6 of the Shyzi Mortgage. Clause 10.1(j) of the Shyzi GSA provides that it is an Event of Default where "Collateral is or will be able to be transferred ... in breach of a provision in this document prohibiting that transfer". "Collateral" is broadly defined in the Shyzi GSA as all of Shyzi's present and after acquired property (cl 1.1(g)) and under cl 5.1(a), Shyzi must not create or allow another interest in Collateral unless it is a permitted dealing under cl 5.2. The parallel provisions of the Shyzi Mortgage is cl 9.6 which provides that it is an Event of Default if a security interest becomes enforceable or is enforced over all or any of the assets and undertakings of a Transaction Party. "Security Interest" is defined in cl 1.1(47) of the Shyzi Mortgage as any interest held as security for the payment of a monetary obligation or the performance of any other obligation.
2. The defendants submit that another interest was created in Shyzi's property falling within the definition of the Collateral under the Shyzi GSA, triggering an additional Event of Default, which the defendants contend existed as at the date of the appointment of the Shyzi Receivers.
3. There is very little evidence in relation to this alleged Event of Default.
4. It is common ground that Shyzi was the owner of land at 728 Parramatta Road, Petersham (the Petersham Property) and continued to be the owner of this property at the date the Shyzi Receivers were appointed. The company search for Shyzi records that on 10 April 2017, a form 504 "Notification that a person has been appointed controller" was lodged with ASIC and a further form was lodged on 20 June 2017 notifying of the cessation of such controller.
5. The defendants submit that this notification reflected that the ANZ Bank had appointed a controller to the Petersham Property. The only evidence on which the defendants rely is a copy of the ASIC search. The defendants did not tender or lead any evidence to support the submission that the controller was appointed to the Petersham Property or that the appointor was ANZ. The defendants did not cross-examine Ms Page or Mr Page on this topic. The defendants further submit that the appointment of a controller to the Petersham Property was not notified to CLAH. The defendants did not lead any evidence from Mr Baker or Ms Comino on this topic.
6. The plaintiffs acknowledge that the forms recorded on the Shyzi company search are required to be lodged when a person appoints another person to enter into possession or take control of property of a corporation for the purpose of enforcing a security interest other than as receiver and when that controller later ceases office (ss 127(1A) and (4) of the Act and related Regulations). The plaintiffs accept that the company search supports a conclusion that ANZ was appointed as a controller on 4 April 2017, a notification was lodged on 10 April 2017 (for the purpose of enforcing a security interest) and ANZ ceased office on 19 June 2017.
7. However, the plaintiffs submit that there is no evidence from which it could be concluded that an interest had been granted by Shyzi over Collateral in breach of cl 5.1(a) of the Shyzi GSA because the defendants have not established that the relevant security interest which was the subject of the notifications reflected on the Shyzi company search were interests that were granted after execution of the Shyzi GSA. There is no direct evidence in relation to the timing of the grant of the security interest before me. Ms Page was not cross-examined on this topic. There is a lacuna in the evidence as to the time when the security was given and in relation to the property to which it attached. The ASIC search enables me to infer that the security was attached to property of Shyzi but does not shed any light on the date on which Shyzi granted that security interest.
8. The plaintiffs submit that the relevant security interest may have existed at the time the Shyzi GSA was executed, which would not constitute a breach under cl 5.1(a), because that clause applies to interests created after entry into the Shyzi GSA. Similarly, cl 9.6 of the Shyzi Mortgage is directed to interest which either become enforceable or are in fact enforced after entry into the Shyzi Mortgage.
9. I note that at the time of entry into the Shyzi GSA, Shyzi warranted that there were no other security interests other than the Permitted Security Interests, meaning those under the Transaction Documents, those expressly consented to in writing by CLAH or any of the other limited circumstances arising in the ordinary course of business: cl 6.2(r)(ii) and see definition of Permitted Security Interest in cl 1.1(mm). That goes some way to suggesting that the relevant security interest was created after entry into the Shyzi GSA and in breach of cl 5.1(a). However, the defendants have not tendered in evidence a title search for the Petersham property or a PPSR search for Shyzi. On balance, in light of the paucity of the evidence, I accept the plaintiffs' submission that the defendants have not established the occurrence of an Event of Default under cl 10.1(j) of the Shyzi GSA or cl 9.6 of the Shyzi Mortgage.
10. In light of my conclusion, it is not necessary to address the plaintiffs' submissions which are addressed to the relevant Event of Default being waived or otherwise remedied when the controllership ended. Had it been necessary to do so, I would have found that if an Event of Default was established to have occurred under cl 10.1(j) of the Shyzi GSA that the plaintiffs have not established that it was waived or otherwise remedied to CLAH's satisfaction for the same reasons as I have identified with respect to the Event of Default under cl 10.1(d). I also would have found that if an Event of Default was established to have occurred under cl 9.6 of the Shyzi Mortgage, then the plaintiffs have not established that it was waived on the basis that there is no evidence of a written instrument signed by CLAH (cl 35.1) or that it has been remedied to the satisfaction of CLAH (cl 1.2(8)).

10.16.2.3 Failure to comply with obligations under Transaction Documents: Event of Default arising under the cl 10.1(a) of the Shyzi GSA and cl 9.2 of the Shyzi Mortgage

1. The third Event of Default on which the defendants rely is the failure of Shyzi to pay Secured Moneys as constituting an Event of Default under cl 10.1(a) of the Shyzi GSA and cl 9.2 of the Shyzi Mortgage.
2. The defendants submit that upon the happening of an Event of Default that Shyzi's obligation under cl 3.1 of the Shyzi GSA to pay the Secured Money to CLAH crystallised without requiring any demand as a necessary precondition to that obligation existing. On that basis, the defendants submit that by failing to pay the Secured Moneys upon the occurrence of an Event of Default, another Event of Default has arisen under cl 10.1(a)(i) of the Shyzi GSA. The equivalent provision of the Shyzi Mortgage is cl 9.2(1) which provides that it is an Event of Default if a Transaction Party to fails to pay or repay any part of the Secured Money when due in accordance with its obligations under any Transaction Document (cl 9.2(1)) or comply with any of its other obligations under a Transaction Document (cl 9.2(2)). If an obligation to pay arises under cl 3.1 of the Shyzi GSA because there has been an Event of Default within the meaning of the Shyzi GSA, then an obligation to pay also arises under cl 4.1 of the Shyzi Mortgage and failure to do so would amount to an Event of Default under cl 9.2 of the Shyzi Mortgage.
3. Although I am satisfied that the defendants have established that an Event of Default occurred under cl 10.1(d) of the Shyzi GSA, I do not accept that the defendants' construction of cl 3.1 of the Shyzi GSA is correct for the reasons I have given. The evidence does not establish that after the occurrence of the Event of Default under cl 10.1(d) and before the appointment of the Shyzi Receivers that the defendants declared the Secured Moneys to be immediately due and payable under cl 13.1(b) of the Shyzi GSA. This is consistent with the proper construction of cl 4.1 and cl 10.1 of the Shyzi Mortgage for the reasons I have given above. Accordingly, I am not satisfied that the defendants have established the occurrence of the third Event of Default on which they rely.

1. For these reasons, on the proper construction of the Shyzi Securities, the appointment of the Shyzi Receivers was not invalid under s 418A of the Act.

10.17 Issues 7(b) to 7(d) - Miscellaneous relief

1. The relief sought under s 423 is not pressed at this time. In closing submissions, the plaintiffs submitted that relief under s 599 was directed to preventing the sale of assets and had been overtaken by the grant of injunctive relief. Likewise, the parties did not wish to be heard on the issue of whether the parties to this proceeding were in an accounting relationship in respect of the indebtedness of Shyzi until after determination of the plaintiffs' application under s 418A of the Act. I will list the proceeding for a case management hearing after the parties have had opportunity to consider these reasons.

1. I bear in mind that pursuant to s 418A of the Act the power to grant relief is not confined to the ground on which the applicant moves but extends to any other ground. The plaintiffs have not identified any other ground. On the evidence before me, being satisfied that the Shyzi GSA was validly entered into, that debt falling within the broad definition of Secured Money under the Shyzi GSA as expanded by the corresponding definition in the Shyzi Mortgage which is picked up as a Transaction Document (as defined) is owed by Shyzi to CLAH and that the appointment power was relevantly enlivened by the occurrence of an Event of Default under cl 10.1(d), I am satisfied that CLAH was entitled to appoint the Shyzi Receivers. Accordingly, the plaintiffs' principal claim for relief under s 418A of the Act and the Court's inherent power must be refused.

11. CLAH'S UNDERLYING CLAIMS AGAINST OHMUT AND PARKWAY ONE (ISSUES 8 TO 19)

1. On 30 July 2020, CLAH purported to appoint the Ohmut Receivers under the Ohmut GSA. In their Debt Particulars, the defendants claim that Ohmut and Parkway One are liable to CLAH in the amount of $3,486,461.98 pursuant the Ohmut/Parkway Facility. The plaintiffs dispute that either Ohmut or Parkway One owe any debt to CLAH pursuant to the Ohmut/Parkway Facility. The plaintiffs seek a declaration under s 418A of the Act that the appointment of the Ohmut Receivers was invalid. I have addressed earlier in these reasons the nature of an application under s 418A of the Act and the applicable principles which apply: see part 10.1 of these reasons.
2. The commercial agreements which are relevant to the determination of the claims against Ohmut and Parkway One are in materially the same terms as those which are relevant to the determination of the claims against Shyzi.
3. The relevant events in relation to the underlying claims against Ohmut are proximate to the events which are relevant to the underlying claims against Shyzi. The entry into the Ohmut/Parkway Facility on 15 August 2016 occurred over six weeks after entry into the Carrabolla Documents on 30 June 2016. The period during which credit was available to be drawn under the Ohmut/Parkway Facility expired on 19 August 2016 and the Ohmut/Parkway Facility expired three months after the first drawdown, being 15 November 2016. The documented term from execution to expiry of the Ohmut/Parkway Facility overlapped with that of the Carrabolla Facility which had an availability period between 30 June 2016 and 5 July 2016 and an expiry date of 30 September 2016. Both arrangements involved the provision of finance by CLAH for a limited period of a few days and an expiry date three months after the first drawdown, with repayment due upon expiry of the facility, unless the due date was accelerated in accordance with the terms of the relevant facility.
4. In addition to the proximity in timing, there are a number of broad themes thrown up in relation to the challenge to the validity of the appointment of the Ohmut Receivers that echo those that sound in relation to the appointment of the Shyzi Receivers. The three central protagonists are relevantly the persons who were principally, if not exclusively, involved in the disputed events which are relevant to the claim for relief in respect of the Ohmut Receivers.
5. The proper construction of the Ohmut GSA, which is the security agreement on which CLAH relied to appoint the Ohmut Receivers, is in issue. As mentioned, the Ohmut GSA is relevantly in the same terms as the Shyzi GSA, subject only to presently immaterial minor variations. The validity of the appointment of the Ohmut Receivers falls to be determined by reference to the proper construction of the Ohmut GSA. CLAH's debt claim is also relevantly secured pursuant to the Ohmut Mortgage, which is relevantly identical in terms to the Shyzi Mortgage. I will refer to the Ohmut GSA and Ohmut Mortgage collectively as the Ohmut Securities.
6. Also relevant to the claims against Ohmut is the Parkway GSA and Parkway Mortgage. The Parkway GSA is relevantly in the same terms as the Ohmut GSA, which as I have said is materially on the same terms as the Shyzi GSA. The Parkway Mortgage is relevantly identical in terms to the Ohmut Mortgage and in turn, the Shyzi Mortgage. I will refer to the Parkway GSA and Parkway Mortgage collectively as the Parkway Securities. The conclusions I have reached as to the proper construction of the Shyzi Securities apply by parity of reasoning in relation to the proper construction of the Parkway Securities.
7. I will refer to the Ohmut Securities and the Parkway Securities collectively as the Ohmut/Parkway Securities.
8. The conclusions I have reached as to the proper construction of the Shyzi Securities apply by parity of reasoning in relation to the proper construction of the Ohmut/Parkway Securities in so far as the underlying agreements are in materially the same terms. Two aspects bear emphasis in relation to the relevant GSAs.
9. First, on a proper construction of the relevant GSAs, the power to appoint a receiver was conditioned on the occurrence of an Event of Default, and not on the existence of present debt that was immediately due and payable.
10. Second, to fall within the definition of Secured Money, the liability to pay must arise under or in connection with the Transaction Documents. A liability to pay money that does not arise under or in connection with the Transaction Documents will not be captured by the definition of Secured Money, viewed in isolation. However, as is the case with the Shyzi Securities, the definition of Secured Money is broader in the Ohmut Mortgage than in the Ohmut GSA. The phrase "in connection with" in the Ohmut GSA directed to the Transaction Documents, which includes the Ohmut Mortgage, imports to cl 3.1 of the Ohmut GSA the more extensive reach of the term Secured Money in the Ohmut Mortgage to the Ohmut GSA. The same analysis applies in respect of the Parkway Securities.
11. In their claim for relief in respect of the appointment of the Shyzi Receivers, the plaintiffs relied on the specific ground that no debt was owed by Shyzi as at the date of the appointment. The plaintiffs' challenge to the appointment of the Ohmut Receivers proceeds on the same basis. The plaintiffs contend that no debt was owed by Ohmut to CLAH on the date on which the Ohmut Receivers were appointed and that this supplies the basis upon which the Court should declare the appointment of the Ohmut Receivers to be invalid: Originating Process, [4].
12. The defendants' response mirrors their response to the plaintiffs' challenge to the validity of the appointment of the Shyzi Receivers. The defendants submit that on the proper construction of the Ohmut GSA, CLAH's right to appoint the Ohmut Receivers was enlivened upon the occurrence of an Event of Default and that relevantly an Event of Default occurred before the appointment of the Ohmut Receivers. Further, that on the proper construction of the Ohmut GSA, proof of present indebtedness is not essential to establish that the validity of the appointment of the Ohmut Receivers for the purposes of s 418A(1) of the Act. The defendants rely on the same authorities as they relied on in their submissions on this issue in relation to Shyzi: see Sue Dwyer at [18]; Canberra Advance; Paul Kennedy Transport.
13. One of the main factual contests is whether the defendants have established the occurrence of an Event of Default that enlivened the appointment power. The relevant circumstance relied on by CLAH is the liquidation of Parkway One which the defendants contend falls within the definition of "Insolvent" under cl 1.1(dd) of the Ohmut GSA and is an Event of Default within the meaning of cl 10.1(d) of the Ohmut GSA.
14. The proper construction of the appointment power and the factual issue as to the occurrence of the particular Event of Default relied upon by the defendants is the subject of Issue 19(a) of the parties' Amended Joint List of Issues. Given the substantial overlap with the findings I have made in relation to the Shyzi claims, it is convenient to address Issue 19(a) first in my substantive consideration below - see part 11.5 below. The balance of Issue 19 is the Ohmut-related equivalent to Issue 7(b) to (d) in relation to Shyzi. These issues are not pressed at this time and will await the case management hearing which will be convened after the parties have had opportunity to consider these reasons - see part 11.6 below.
15. The second theme in the plaintiffs' case is that notwithstanding the execution of the formal loan and security agreements by Ohmut and Parkway One, the advance of $500,000 that was made by CLAH contemporaneously with the execution of the Ohmut/Parkway Facility was made for a purpose that was not recognised under that facility. The plaintiffs accept that the advance was made pursuant to the Ohmut/Parkway Facility but contend that the advance was for the benefit of another one of Ms Page's companies, namely Elefteria, and was made for the purpose of settling legal proceedings in which Elefteria was involved with a third party, Mr Pitsis. The plaintiffs contend that the liability to repay this advance was a liability of Elefteria, and not Ohmut. The plaintiffs contend that the Ohmut/Parkway Facility, which had an Advance Facility Limit of $510,000, was effectively fully drawn upon the making of the $500,000 advance. The dispute as to whether the advance of $500,000 by CLAH in August 2016 was a loan to Elefteria or in the alternative to Ohmut is the subject of Issue 8 which is addressed in part 11.7 of these reasons.
16. The plaintiffs contend that the advance of $500,000 was the only advance made under the Ohmut/Parkway Facility and that all further advances relied on by the defendants were not made pursuant to the Ohmut/Parkway Facility. This is the subject of Issue 9 which is addressed in part 11.8 below. The plaintiffs further maintain that the liability to repay this advance, whether that liability was a liability of Elefteria or Ohmut, was discharged, forgiven or set off under an oral agreement alleged to have been made between Ms Page and Mr Baker. This is the subject of Issue 10 which is addressed in part 11.9, and particularly in part 11.9.1.
17. The determination of Issue 8 turns on the competing accounts given by each of the three protagonists. As with the claims made in relation to the circumstances attending the execution of the Carrabolla Facility, the plaintiffs claim that the formal documents were executed in the way in which they were to facilitate Mr Baker processing loan approvals through CLAH without attracting adverse attention from CLAH's directors or auditors in relation to the making of the $500,000 advance. The findings I have made as to Mr Baker being in effective control of CLAH notwithstanding that he was an undischarged bankrupt for much of the relevant period apply equally in the present context. The evidence does not support a finding that the directors of CLAH were involved in any way in the relevant transactions. I do not accept Mr Baker's vague assertions that he gave the directors oral reports concerning the status of the Ohmut/Parkway Facility from which there are no reliable supporting contemporaneous documents or corroborating evidence from Mr Mitropoulos.
18. As I have found in relation to the Carrabolla Facility, so too with respect to the payments made by CLAH to or at the direction of Ohmut and Parkway One, I do not accept that Mr Baker was in truth concerned about facing scrutiny from the CLAH directors. He may have represented that he had such a concern in his dealings with Ms Page and Mr Page but if he did so, that only reinforces that Ms Page, and Mr Page in his capacity as agent, understood at all times that in order to obtain the funds which were the subject of the documented facilities with CLAH, she and her relevant companies were required agree to the terms of the documented arrangements. Mr Baker in fact controlled CLAH's affairs and there is no reliable evidence from which I could conclude on the civil standard that he was subject to any effective supervision by the board of CLAH during the period relevant to these proceedings. Mr Baker's evidence that he put the Ohmut/Parkway Facility to the CLAH board and that the board approved the loan is not supported by any documentary evidence. I do not accept it.
19. To the extent that Mr Baker held concerns about adverse attention being attracted to his dealings on behalf of CLAH with Ms Page and her companies, it was scrutiny from the auditors that he was concerned about. I interpolate to note that the inference that Mr Baker's concerns were agitated by the fact that CLAH was subject to external audit is supported by the findings that I have made in relation to the events which are addressed in part 12 in relation to the appointment of the Tallywalker Receivers. For present purposes, it suffices to note that in the period after CLAH reverted to being a proprietary company and therefore was no longer subject to external audit, Mr Baker became much more brazen in the way in which he approached obtaining security for the benefit of CLAH.
20. As with the suite of Carrabolla Documents, Ms Page's claims that she willingly executed legal documents that she knew to be incorrect because Mr Baker asked her to do so and she was willing to oblige because Mr Baker was a friend whom she trusted are repeated with respect to the Ohmut/Parkway Documents. Likewise, the issues I have addressed in relation to the reliability of internal CLAH documents that are relatively contemporaneous, but which were prepared based on instructions given by Mr Baker apply equally to the evidence relied on by the defendants in relation their claims against Ohmut. In short, contemporaneous internal CLAH documents (including banking transaction records that contain representations derived from Mr Baker's instructions) must be assessed to determine whether they are reliable or reflect misrepresentations made by Mr Baker prophylactically at the time to guard against concerns being raised by CLAH's auditors.
21. As with the Shyzi claims, the evidence relating to the Ohmut claims comprise competing accounts given by the three protagonists. The competing accounts are found not only in the oral evidence of Ms Page, Mr Page and Mr Baker but also in representations made by each of them in documents which were either contemporaneous with the execution of the formal documents or made prior to the appointment of the Ohmut Receivers and which they now contend did or did not represent the true position. The same difficulties in relation to fact‑finding that permeated determination of the factual issues arising in relation to the claims against Shyzi arise in relation to the Ohmut claims. In approaching the fact-finding task, I draw on the principles I have identified earlier in these reasons.
22. Relatedly, Issue 9 is directed to what if any advances were made by CLAH to Ohmut under the Ohmut/Parkway Facility. Issue 9 is addressed in part 11.8 of these reasons. The determination of Issue 9 turns partly on the determination of Issue 8 but also on the determination of Issue 10 which is addressed to the plaintiffs' contentions as to the existence of an alleged oral Trust Investment Agreement between Ms Page and Mr Baker in January 2017. Issue 10 is addressed in part 11.9. The plaintiffs' contentions concerning the alleged Trust Investment Agreement affects the determination of what if any debt is owing under the Ohmut/Parkway Facility. The defendants deny the existence of the alleged Trust Investment Agreement.
23. The third theme or overarching issue engages Issues 10, 11, 12 and 13, which are addressed in part 11.9. All of these issues in one way or another relate to the alleged Trust Investment Agreement. The plaintiffs must confront the same difficulties in proving on the civil standard the existence of the alleged Trust Investment Agreement as they faced in relation to the alleged oral Shyzi Offset Agreement.
24. The plaintiffs allege that pursuant to the Trust Investment Agreement, CBD Sydney Investments agreed to acquire units in the Parkway One Trust and the Ohmut Trust. The plaintiffs maintain that pursuant to the Trust Investment Agreement, Mr Baker made a series of payments in consideration for the acquisition by CBD Sydney Investments of units in the Parkway One Trust and the Ohmut Trust (the alleged Trust Investment Payments). The plaintiffs allege that Ms Page understood that Mr Baker was being funded by CLAH in making these payments. On this basis, the plaintiffs maintain that the payments advanced from CLAH which the plaintiffs accept were received from CLAH but which they style as Trust Investment Payments were not advances made under the Ohmut/Parkway Facility and should not have been debited to that facility.
25. The fourth theme involves whether Ohmut or Parkway One owed any money to CLAH as at the date of the appointment of the Ohmut Receivers (Issue 16) which turns on whether certain specified amounts were wrongly debited to the Ohmut/Parkway Facility (Issue 14) or wrongly credited to the Ohmut/Parkway Facility (Issue 15). Issues 14 to 16 are addressed in part 11.10 below. This is a similar exercise to that undertaken to determine Issues 4 to 6 in relation to the claims against Shyzi. There is some overlap in relation to whether two of the payments made to CLAH are properly treated as credits towards Shyzi's debt or credits towards Ohmut's liabilities. However, having regard to the proper construction of the Ohmut GSA, the critical question going to the validity of the appointment of the Ohmut Receivers is whether an Event of Default had occurred which would empower CLAH to appoint receivers.
26. Issue 17 is directed to whether CLAH's security interest in the property of Parkway One was unperfected as at the date of the winding up of Parkway One and in consequence has that security interest vested in Parkway One by operation of s 267 of the PPSA. This is addressed in part 11.11 below.
27. Issue 18 is addressed to whether CLAH has a first ranking priority, as a secured lender, to the balance of the proceeds of sale in respect of the Cooks Hill Property, and if so are the parties to this proceeding in an accounting relationship in respect of such proceeds of sale. Issue 18 is addressed in part 11.2 below.
28. Before considering the issues identified by the parties in relation to the claim against Ohmut, I will first address the relevant commercial agreements.

1. The Loan Offer Schedule Form issued by CLAH for the Ohmut/Parkway Facility is dated 12 August 2016. It details a $510,000 loan from CLAH as proposed lender to Parkway One, Ohmut and Harmat as "Borrowers" guaranteed by Ms Page as "Guarantor". CLAH lists the security required as follows:

(1) the Parkway Mortgage;

(2) the Ohmut Mortgage;

(3) the Parkway GSA;

(4) the Ohmut GSA; and

(5) the Harmat GSA.

1. Each of the required GSAs was required to be entered into in the grantor's own right and as trustee of the grantor's associated trust and to be over all present and after acquired property. The loan offer stipulated that the maximum LVR permissible post advance of the proposed loan offer was to be 85%. The security calculations included in the loan offer record that the actual LVR after the proposed advance is estimated to be 71.57%.
2. The "Estimated Date of Advance" is stated to be 15 August 2016 and the "Estimated Date Full Repayment Due" is stated to be 14 November 2016.
3. The permitted use of the funds is described as follows (original emphasis):

Permitted Usage of Funds

Fund refurbishments cost at the above properties $500,000.00

Fees, Stamp Duty and Disbursements (where applicable) $2,540.00

Surplus Funds as Directed by the Borrower $7,460.00

1. Under the subheading "Loan Exit Strategy", it states:

Loan Exit Strategy

From receipt of funds from the sale of other investment property; and

Loan from NAB.

1. The "other investment property" is not described in the Loan Offer Schedule Form.
2. The suite of legal documents documenting the arrangements in relation to the Ohmut/Parkway Facility and the related securities were emailed by CLAH's solicitors to Catalyst Legal, the solicitors for Ms Page, Parkway One and Ohmut, at 2.07pm on 15 August 2016. Catalyst Legal also acted for Ms Page, Carrabolla and Shyzi in respect of the Carrabolla Documents which were executed some six weeks earlier. At the time the Ohmut/Parkway Facility and the related securities were executed, Catalyst Legal was also acting for Elefteria in relation to the Deed of Settlement entered into between Elefteria and Mr Pitsis in August 2016.
3. At 2.32pm on 15 August 2016, Mr Baker emailed Mr Page requesting that Parkway One and Ohmut execute and send back to CLAH's solicitors the suite of documents:

Can you please have the Loan Facility Agreement and the two mortgages signed and emailed to our solicitor. Ideally we also would like the confirmation of legal advice signed and sent back to our solicitor

1. Mr Baker also requested an undertaking that the signed documents would be delivered to CLAH's solicitors no later than 5pm on Wednesday, 17 August 2016 and that failure to do so would constitute a default under the Ohmut/Parkway Facility. This email was not copied to Ms Page. That the email is not copied to Ms Page is further support for the finding I have made as to Mr Page being the agent of Ms Page, Ohmut and Parkway One in relation to the negotiation and drawdown of the Ohmut/Parkway Documents.
2. At 2.56pm on 15 August 2016, CLAH transferred the sum of $500,000 to Catalyst Legal's trust account. Mr Baker had given an instruction by email sent at 1.06pm that this payment was to be queued for "immediate payment" to the Catalyst Legal trust account. The payment required two designated persons to authorise the payment. Mr Baker and Ms Comino provided the requisite authorisations shortly before the payment was processed. The subject line of Mr Baker's email giving instructions to Mr Trivedi was "Loan to Parkway One Pty Ltd et al".
3. Ms Page accepted in cross-examination that there was an urgency about this payment being made. Ms Page did not agree that the advance was paid to the Catalyst Legal trust account because it was advanced before the relevant loan documents were in place. She said that it was paid by CLAH to Catalyst Legal so Elefteria could settle a legal dispute with Mr Pitsis. Putting the loan purpose to one side, Ms Page did accept that the advance was a loan by CLAH to Parkway One and Ohmut:

My question at the moment is a very simple one. The $500,000 advance, whatever its purpose may have been, was a loan by CLAH to Parkway and Ohmut, correct?---I did sign documents for $500,000 for Parkway and Ohmut with CLAH, yes.

1. As I have said, Ms Page reluctantly conceded that Mr Page was involved in negotiating this loan with CLAH. However, she insisted it was for the purpose of settling the legal dispute between Elefteria and Mr Pitsis. When it was put to her that Mr Page was acting on behalf of Parkway One and Ohmut in those negotiations, Ms Page denied that was the case, taking refuge in her oft repeated phrase that the three of them were friends, in this case just friends discussing the $500,000 required by Elefteria. The evidence demonstrates that Mr Page was the principal person involved in negotiating with Mr Baker the agreement for CLAH to advance the loan to Ohmut and Parkway One at this time. Such documentation as exists was between Mr Page and Mr Baker. Ms Page is not copied to that correspondence. Ms Page was ultimately the person who executed all of the documentation on the terms that Mr Page had agreed with Mr Baker on behalf of CLAH. For the reasons I have given in relation to Issue 1, I accept that the defendants have established that Mr Page was relevantly the agent of Ms Page's companies in negotiating the terms of the Ohmut/Parkway Facility and the related securities.
2. On 17 August 2016, CLAH's solicitors received signed copies of the following documents in relation to the advance to Ohmut and Parkway One:

(1) the Parkway Mortgage (as defined in part 1.1.2 of these reasons);

(2) the Ohmut Mortgage (as defined in part 1.1.2 of these reasons);

(3) the Ohmut/Parkway Facility (as defined in part 1.1.2 of these reasons);

(4) the Parkway GSA (as defined in part 1.1.2 of these reasons);

(5) the Ohmut GSA (as defined in part 1.1.2 of these reasons);

(6) the Harmat GSA (as defined in part 1.1.2 of these reasons);

(7) a Disbursement and Completion Authority between CLAH as Lender and CLAH's appointed lawyers from time to time on the one hand and Parkway One (in its own capacity and as trustee for the Parkway One Trust), Ohmut (in its own capacity and as trustee for the Ohmut Trust) and Harmat (in its own capacity and as trustee for the Harmat Trust) and Ms Page on the other. The version of the authority in evidence is undated. This authority was executed by Ms Page in her own capacity and in her capacity as sole director and company secretary of each of Parkway One, Ohmut and Harmat;

(8) an Advance Facility Drawdown Notice between CLAH on the one hand and Parkway One (in its own capacity and as trustee for the Parkway One Trust), Ohmut (in its own capacity and as trustee for the Ohmut Trust) and Harmat (in its own capacity and as trustee for the Harmat Trust) on the other, dated 17 August 2016. This notice was executed by Ms Page in her own capacity as guarantor and in her capacity as sole director of each of Parkway One, Ohmut and Harmat;

(9) a declaration titled "Trust letter - trustee is borrower" from Parkway One as trustee to CLAH (Parkway Declaration). The version of the Parkway Declaration in evidence is undated. The Parkway Declaration is executed by Ms Page in her capacity as sole director and sole company secretary of Parkway One;

(10) a declaration titled "Trust letter - trustee is borrower" from Ohmut as trustee to CLAH (Ohmut Declaration). The version of the Ohmut Declaration in evidence is undated. The Ohmut Declaration is executed by Ms Page in her capacity as sole director and sole company secretary of Ohmut;

(11) a declaration titled "Trust letter - trustee is borrower" from Harmat as trustee to CLAH (Harmat Declaration). The version of the Harmat Declaration in evidence is undated. The Harmat Declaration is executed by Ms Page in her capacity as sole director and sole company secretary of Harmat;

(12) a "Verification Certificate of Transaction Party" from Parkway One to CLAH. This verification certificate is undated and executed by Ms Page in her capacity as sole director and company secretary for Parkway One;

(13) a "Verification Certificate of Transaction Party" from Ohmut to CLAH. This verification certificate is undated and executed by Ms Page in her capacity as sole director and company secretary of Ohmut;

(14) a "Verification Certificate of Transaction Party" from Harmat to CLAH. This verification certificate is undated and executed by Ms Page in her capacity as sole director and company secretary of Harmat;

(15) a VOI (Verification of Identity) confirmation form identifying Ms Page dated 17 August 2016. The "Purpose of Identifying Person" is described as "Guarantor / Sole Director and Secretary" of Parkway One, Harmat and Ohmut;

(16) a "Declaration By Borrower Electing Not To Receive Independent Financial Advice" (Companies Waiver of Financial Advice) to CLAH and Diamond Conway from Parkway One (in its own capacity and as trustee for the Parkway One Trust), Ohmut (in its own capacity and as trustee for the Ohmut Trust) and Harmat (in its own capacity and as trustee for the Harmat Trust). The declaration that is in evidence is undated and was executed by Ms Page in her capacity as sole director and sole company secretary of each of Parkway One, Ohmut and Harmat; and

(17) a "Declaration By Guarantor Who Chooses Not To Receive Independent Financial Advice" (Guarantor Waiver of Financial Advice) to CLAH and Diamond Conway from Ms Page as guarantor dated 17 August 2016. This declaration was executed by Ms Page.

1. The critical documents relevant to the claim under s 418A(1) in relation to the appointment of the Ohmut Receivers are the Ohmut/Parkway Facility and the Ohmut/Parkway Securities, particularly:

(1) the Ohmut/Parkway Facility;

(2) the Parkway GSA; and

(3) the Ohmut GSA.

1. The Parkway Mortgage is the key document which falls to be considered in the Distribution Proceedings, addressed in part 13 below.
2. Ms Page in her evidence admits that CLAH loaned Ohmut and Parkway One the sum of $500,000. She further admits that proximate to the time she executed each of the documents identified she obtained legal advice. In the declaration signed by Ms Page as sole director of Parkway One, Ohmut and Harmat dated 30 August 2016, she acknowledges that she received independent legal advice in respect of the GSAs and that she signed "Mortgage, loan agreement and facility agreements" on this basis. The declaration has a handwritten annotation that she received the advice regarding the loan and security documents "after they were signed and moneys advanced". Under cross-examination she agreed that she signed the documents after reading the documents carefully. She agreed that she ensured that the documents corresponded to her understanding of the transaction that she intended to enter into with CLAH before she signed them. She signed the documents in her own right and as the sole director of Ohmut, Harmat and Parkway One as applicable.
3. Ms Page was taken to the commercial documents in her cross-examination. She agreed that she read and signed each of the documents in the presence of her solicitor, Ms Thorpe from Catalyst Legal.
4. Ms Page was taken to the three critical commercial agreements in turn, her evidence was as follows. Ms Page signed two declarations in relation to the waiver of receiving financial advice - the Companies Waiver of Financial Advice and the Guarantor Waiver of Financial Advice. She gave evidence as follows:

... you there declared that you had read the documents provided by CLAH?---Yes.

And you understand the terms contained in them?---Yes.

And the company's obligations?---Yes.

And that was true, wasn't it?---Yes.

Thank you. And then go to 1167, if you would. You will see another declaration by guarantor?---Yes.

That's yourself; correct?---Yes.

And you've signed that at 1168; correct?---Yes, I have. Yes. Yes.

And you did that on 17 August 2016?---Yes.

And the declaration in paragraph 11 was true; correct?---Yes.

Thank you. And, in relation to all of those documents, you satisfied yourself, didn't you, before you signed them, that they corresponded to your true intention?---I borrowed the money from CLAH for the $500,000, and that was the agreement that I made with Theo. Yes.

1. Paragraph 11 of the Guarantor Waiver of Financial Advice to which Ms Page was taken, states:

I have read the documents provided to me by CL and understand the terms contained in those documents and the Borrower's and my obligations under those documents.

1. In relation to the Ohmut/Parkway Facility, she was shown the agreement and specifically asked to read the facility details in Schedule 1 of the Ohmut/Parkway Facility. Ms Page agreed she read the document before signing it. She agreed that she satisfied herself that it corresponded to her intention in entering into this contract.
2. Ms Page was specifically taken to Schedule 1, Item 8, which states:

• To fund refurbishments of 82 Parkway Avenue, Cooks Hill NSW 2300 and 60 Harriet Street, Waratah NSW 2298
• Payment of fees, legal expenses, stamp duty and disbursements in connection with the Facility Agreement with any surplus funds as directed by the Borrower which may be used only for legal purposes and for genuine bona fide commercial purposes that do not contravene the Transaction Documents

You read schedule 1, the facility details, before you signed the document?---Yes, I did.

And you satisfied yourself that it corresponded to your intention in entering into this contract; correct?---Yes.

And I draw your attention to item 8, purpose. And the purpose is stated there to be to fund refurbishments of 82 Parkway Avenue and 60 Harriet Street. Do you see that?---Yes.

And that corresponded to your intention in entering into this contract; correct?---The $500,000 was for Elefteria to settle a legal dispute with Andrew Pitsis.

Are you disagreeing with my proposition?---What was your question?

The purpose stated in item 8 in that first bullet point corresponded to your intention in entering into this contract?---It wasn't my intention. Theo said to me that CLAH wasn't able to lend $500,000 to a company to settle a legal dispute. And, to get it past the board in time to make the deadline, he needed to put something together like, let's put Ohmut and Parkway up, two well income generating properties. That will get past the board with no questions asked, and we will be able to make the deadline. I will have to put it down as refurb works so it can get past. I agreed to do this so I could settle the matter for Elefteria.

Now, there's no document at all that records that conversation, is there, Ms Page?---It's a conversation and an agreement between Theo and myself.

The conversation never occurred, did it?---Yes, it did.

And how do you explain to - I withdraw that. Can you explain to her Honour why it is that you signed this facility agreement, including item 8 dealing with purpose, if you thought that that description on the purpose was wrong?---I agreed with Theo for the funds - of the $500,000 that I was getting to pay the legal dispute - have it - the loan to CLAH as Parkway and Ohmut, and the purpose of the loan was to be for refurbishment works, because he wasn't able to put the real loan in as funds to an entity to settle a legal dispute. The only way he could put it through was this way. I agreed to it between Theo and myself. I don't think there's anything written. It's verbal. I did agree to it. I did sign it. Yes.

And do you adhere to your evidence a few minutes ago that, before signing this agreement, you satisfied yourself that it corresponded to your intention in entering into the contract?---I signed it that way because I needed the $500,000, and it was the only way that Theo could put it through CLAH through the board and to get it signed and approved in time.

1. When the cross-examiner returned to the topic of the purpose of the loan which was the subject of the Ohmut/Parkway Facility, Ms Page's evidence was as follows:

And the statement of purpose that I've shown you was an accurate statement of purpose for that loan as you understood it; correct?---I've agreed to the loan and signed the loan the way it presents.

1. In relation to the Parkway GSA, after being taken to it, Ms Page agreed that she had signed it. She was asked whether before doing so she satisfied herself that the agreement corresponded to her true intention. She responded "I've signed it, yes". Despite the fact that Ms Page's answer is somewhat evasive, I took her to agree that before signing she had satisfied herself that the agreement was in accordance with what she, and through her, Parkway One, intended and understood, namely that it was the only way to get the advance from CLAH. This was one of the many examples where in giving her evidence, Ms Page gave evasive answers on issues she perceived as being adverse to the plaintiffs' interests.
2. I will address in part 11.7 below the parties' competing contentions as to the genesis of the Ohmut/Parkway Facility and whether the purpose of the $500,000 advance was to fulfil Elefteria's liability to Mr Pitsis under the settlement deed.
3. After the commercial documents were executed on 17 August 2016, CLAH attended to the following steps to protect the security interests obtained by it under the relevant security agreements.
4. On 17 August 2016, CLAH lodged a caveat over the Cooks Hill Property pursuant to the Parkway Mortgage and over 60 Harriet Street pursuant to the Ohmut Mortgage.
5. On 19 August 2016, CLAH:

(1) registered its security interest over all present and after-acquired property owned by Parkway One on the PPSR;

(2) registered its security interest over all present and after-acquired property owned by Ohmut on the PPSR; and

(3) registered its security interest over all present and after-acquired property owned by Harmat on the PPSR.

1. On 30 August 2016, Ms Page provided to CLAH the signed declaration stating that she had received independent legal advice in respect of the loan documents for the advance to Parkway One, Ohmut and Harmat to which I have referred above.

1. The applicable principles of construction relevant to the proper construction of the three critical commercial documents relevant to CLAH's claims against Ohmut as part of the suite of commercial documents that were executed at this time are set out in part 10.3 of these reasons.

1. As mentioned, the Ohmut/Parkway Facility is in substantially the same terms as the Carrabolla Facility. I will not address each clause of the Ohmut/Parkway Facility with the same level of detail as I have for the Carrabolla Facility in part 10.5.1 as the key terms and definitions are identical. The following discussion of the Ohmut/Parkway Facility is relevantly limited to the key clauses and any circumstances where the Ohmut/Parkway Facility departs from the template supplied by the Carrabolla Facility, including different facility details and party details.
2. The parties to the Ohmut/Parkway Facility are as follows. Parkway One (in its own capacity and in its capacity as trustee of the Parkway One Trust), Ohmut (in its own capacity and as trustee of the Ohmut Trust) and Harmat (in its own capacity and as trustee of the Harmat Trust) are described in Schedule 7 as the Borrower. Ms Page is named as a Guarantor. CLAH is defined as the Financier.
3. The sole recital, consistent with the Carrabolla Facility, records that:

BACKGROUND

1. The Transaction Parties have requested [CLAH] to provide [Parkway One, Ohmut and Harmat] with the [Ohmut/Parkway Facility] under which financial accommodation may be made available to [Parkway One, Ohmut and Harmat] under the terms of the Transaction Documents.

1. The Transaction Parties are Parkway One, Ohmut, Harmat and Ms Page: cl 1.1(rrr). A reference to a Transaction Party in the Ohmut/Parkway Facility includes each of them and they are bound separately and jointly: cl 1.4. Each of Parkway One, Ohmut and Harmat are bound both as trustee of the respective trusts and in their own right for the obligations of a Transaction Party and are subject to the representations and warranties set out in cl 13.2.
2. The Transaction Documents relevantly include the Security Documents set out in Schedule 4, being the Ohmut Securities, Parkway Securities, Harmat GSA and all "forms, declarations and ancillary documents as required" by CLAH: cl 1.1(kkk) and 1.1(qqq).
3. The Advance Facility Limit, as specified in Schedule 1, Item 1, is $510,000: c ll 1.1(f) and 1.1(ttt).
4. The relevant date specified as the Availability Expiry Date in Schedule 1, Item 2, is 19 August 2016: cl 1.1(m). The Ohmut/Parkway Facility was entered into on 15 August 2016. The Availability Period for the Ohmut/Parkway Facility commenced on Monday, 15 August 2016 and expired on Friday, 19 August 2016.
5. Clause 2, consistently with the Carrabolla Facility, is addressed to the availability and limits of the Ohmut/Parkway Facility. Clause 2 provides:

2.1 Availability of Advance Facility

Subject to this document the Financier agrees with the Borrower to make available the Advance Facility to the Borrower during the Availability Period.

2.2 Limit of Advance Facility

The Borrower will not be entitled to give a Drawdown Notice for an Advance and the Financier will have no obligation to comply with any request contained in a Drawdown Notice for an Advance if the Drawing would result in the aggregate of the Principal Outstanding exceeding the Advance Facility Limit.

2.3 No redrawings

Subject to this document unless otherwise agreed to by the Financier, the Borrower will not be entitled to redraw Advances repaid.

2.4 Cancellation

On the Availability Expiry Date, any Undrawn Commitment under the Advance Facility will be cancelled

1. The relevant date specified as the Expiry Date in Schedule 1, Item 3, is three months after the first Drawdown Date: cl 1.1(ee). On the Expiry Date, the Borrower must pay to CLAH the whole of the remaining principal outstanding together with accrued interest and fees and all other money then payable by the Borrower under the Ohmut/Parkway Facility: cl 8.2.
2. Consistently with the definition of Secured Money in the Carrabolla Facility, the definition of Secured Money in cl 1.1(iii), while undoubtedly broad, is constrained by the repeated use of the qualifying phrase "under or in connection with a Transaction Document".
3. Schedule 1, Item 7 lists the details of the Parkway One Trust with Parkway One as the relevant trustee and the Ohmut Trust with Ohmut as the relevant trustee. Harmat and the Harmat Trust are not listed, despite Harmat being a relevant Transaction Party.
4. Clause 3, consistent with the Carrabolla Facility, provides that Parkway One, Ohmut and Harmat may only use the Ohmut/Parkway Facility for the purposes described in Item 8 of Schedule 1 or any other purposes CLAH agrees to in writing. Schedule 1, Item 8 provides:

• To fund refurbishments of 82 Parkway Avenue, Cooks Hill NSW 2300 and 60 Harriet Street, Waratah NSW 2298
• Payment of fees, legal expenses, stamp duty and disbursements in connection with the Facility Agreement with any surplus funds as directed by the Borrower which may be used only for legal purposes and for genuine bona fide commercial purposes that do not contravene the Transaction Documents

1. Both the Ohmut/Parkway Facility and Carrabolla Facility include the purpose set out in the second dot point above which provides for the use of surplus funds for legal purposes and for genuine bona fide commercial purposes that do not contravene the Transaction Documents. The Ohmut/Parkway Facility and the Carrabolla Facility otherwise have different purposes.
2. There is no evidence to suggest that any additional purposes were at any time agreed to by CLAH in writing. The alleged Trust Investment Agreement on which the plaintiffs rely is alleged to have been made orally and was not relevantly recorded in writing as required by cl 3 but of critical significance is that CLAH is not even alleged to be a party to the alleged Trust Investment Agreement.
3. A Drawdown Notice, in the form provided for in cl 4 and Schedule 2, was executed by Ms Page on 17 August 2016. The template Drawdown Notice set out in Schedule 2 of the Ohmut/Parkway Facility is pre-populated with the principal amount of $510,000. It departs from the template Drawdown Notice provided for in the Carrabolla Facility in that the express statement as to purpose is not prepopulated. The template Drawdown Notice in the Ohmut/Parkway Facility provides:

5. The accommodation requested is to be applied for the following purposes:

Amount Purpose

A$_______ _________________________________

A$_______ _________________________________

A$_______ _________________________________

A$_______ Payment of fees, legal expenses, stamp duty and disbursements in connection with the Facility Agreement with any surplus funds as directed by the Borrower

[Note: The amounts and purposes must comply with clause 3].

1. Clause 15, consistently with the Carrabolla Facility, introduces a list of events that comprise Events of Default (whether or not the event is in the control of any Transaction Party): cll 15.2 to 15.23. In particular, cl 15.5 provides that it is an Event of Default if any Insolvency Event occurs in relation to a Transaction Party.
2. Clause 16, consistently with the Carrabolla Facility, is addressed to CLAH's rights on default.
3. Clause 17, consistent with the Carrabolla Facility, is addressed to the Guarantee given by the Guarantor. Relevantly, the Guarantor is Ms Page.
4. Ms Page's liability as Guarantor to pay under cl 17.2 is predicated upon Parkway One, Ohmut and Harmat failing to pay any of the Secured Money when due and that a demand is made for Ms Page to pay. The conditions precedent listed in Schedule 5 of the Ohmut/Parkway Facility

1. Applying the principles to which I have already referred and having regard to the fact that the agreement was executed as part of a suite of commercial documents, I find that in its proper construction, construed objectively and in context, the effect of the Ohmut/Parkway Facility was as follows.
2. First, unless varied or amended in writing and signed by the parties, the Ohmut/Parkway Facility provided for CLAH to advance funds to Parkway One, Ohmut and Harmat up to a specific limit ($510,000) before a specified date (19 August 2016). Any part of the loan limit that was undrawn as at 19 August 2016 was cancelled and no longer available to be drawn. Interest was payable at a rate of 1% per month for periods of 30 days. Unless repaid early, the Ohmut/Parkway Facility was to be repaid in full within three months of the first drawdown, that is upon the Expiry Date.
3. Second, the funds drawn were to be used for the purposes specified in cl 3 and Schedule 1, Item 8. As mentioned, there is no evidence that any other purpose was approved in writing as permitted by the Ohmut/Parkway Facility.
4. Third, Parkway One, Ohmut and Harmat could not give a Drawdown Notice if it would result in the aggregate of the principal outstanding exceeding the advance limit of $510,000. Unless otherwise agreed to by CLAH, Parkway One, Ohmut and Harmat could not redraw any amounts which it repaid early.
5. Fourth, on expiration of the facility on 17 November 2016 (being three months after the first Drawdown Date on 17 August 2016), Secured Money including interest and other moneys due under Ohmut/Parkway Facility had to be repaid in full. Secured Money is expansively defined but is limited to money advanced "under or in connection with a Transaction Document".
6. Fifth, on the occurrence of an Event of Default, CLAH could by notice to Parkway One, Ohmut and Harmat declare that Secured Money is immediately due and payable. An Event of Default did not of itself render the Secured Moneys due and payable.
7. Sixth, on the occurrence of an Event of Default, CLAH is entitled to exercise powers conferred under cl 16. These powers do not include the power to appoint a receiver.
8. Seventh, Ms Page's obligation as Guarantor to pay Secured Money was conditioned on Parkway One, Ohmut and Harmat's failure to pay any of the Secured Money when due and on CLAH making a payment demand on Ms Page: cl 17.2.
9. Eighth, any amendment or variation of the terms of the Ohmut/Parkway Facility are required to be in writing and signed by the parties: cl 39.
10. I now turn to the Ohmut Securities and Parkway Securities that were executed contemporaneously with the Ohmut/Parkway Facility.

1. As I have said, the relevant GSAs are in materially the same terms as each other, and as the Shyzi GSA. Likewise, the relevant mortgages are in materially the same terms as each other and the Shyzi Mortgage. I will address the relevant terms of the Ohmut GSA and the Ohmut Mortgage. The Parkway GSA and Parkway Mortgage are relevantly the same and I will not address them separately here. The observations made in relation to the proper construction of the Ohmut Securities apply mutatis mutandis to the Parkway Securities.

1. As mentioned, on 30 July 2020, CLAH appointed the Ohmut Receivers, relying on the power of appointment under the Ohmut GSA. The terms of the Ohmut GSA are materially the same as the Shyzi GSA. I will address the relevant clauses of the Ohmut GSA and the extent to which it departs from the Shyzi GSA.
2. The Ohmut GSA was executed by Ohmut, in its own right and in its capacity as trustee of the Ohmut Trust, as Grantor of security in favour of CLAH as the Secured Party.
3. Parkway One (in its own capacity and as trustee of the Parkway One Trust), Ohmut (in its own capacity and as trustee of the Ohmut Trust) and Harmat (in its own capacity and as trustee of the Harmat Trust) are defined as the Debtor: cl 1.1(p) and Schedule 1, Item 2.
4. Clause 2 of the Ohmut GSA is the clause by which Ohmut grants to CLAH a security interest in Collateral to secure payment of the Secured Money: cl 2.1(a). Collateral is defined in cl 1.1(g) as follows:

Collateral means all the Grantor's present and after-acquired property. It includes anything in respect of which the Grantor has at any time a sufficient right, interest or power to grant a Security Interest;

1. This definition deviates from the definition provided in the Shyzi GSA. The definition of "Collateral" in cl 1.1(g) of the Ohmut GSA does not expressly include "Trust Property": cf cl 1.1(g) of the Shyzi GSA.
2. As with the definition of Secured Money in the Shyzi GSA, the definition of Secured Money in cl 1.1(xx) in the Ohmut GSA is broad but is constrained by the phrase "under or in connection with the Transaction Documents". "Secured Money" is broadly defined in the Shyzi GSA and the Ohmut GSA but must satisfy the description of being money or damages that are owing or payable "for any reason or on any account whatsoever at any time under or in connection with the Transaction Documents". Secured Money expressly includes "money and damages payable... by [Ohmut] under any Guarantee": cl 1.1(xx)(xi). To fall within the definition of Secured Money, the liability to pay must arise under or in connection with the Transaction Documents. On the proper construction of cl 3.1 of the Ohmut GSA, Ohmut's obligation to pay to CLAH the Secured Money, includes all moneys owed by Ohmut to CLAH under, or in connection with, the Ohmut Mortgage because the Ohmut Mortgage is relevantly one of the documents within the definition of Transaction Documents. A liability to pay money that does not arise under or in connection with the Transaction Documents will not be captured by the definition of Secured Money. The definition of Secured Money is broader in the Ohmut Mortgage than in the Ohmut GSA - it does not include the qualifying phrase "under or in connection with" a Transaction Document. The proper construction of cl 3.1 of the Ohmut GSA directed to the Transaction Documents, which includes the Ohmut Mortgage, imports the more extensive reach of the term Secured Money in the Ohmut Mortgage to the Ohmut GSA. The same analysis extends to the Parkway Mortgage, which is also a Transaction Document for the purpose of the Ohmut GSA.
3. Clause 14.1(a)(ii) provides that CLAH may appoint a receiver to any part of the Collateral at any time after an Event of Default occurs. It is not a precondition to the appointment power being enlivened that a debt is due or that a demand for payment has been made before CLAH can exercise the power to appoint a receiver under cl 14.1(a). The receiver is then empowered to do everything that the Grantor may lawfully authorise an agent to do on their behalf in relation to that property: cl 14.3.
4. Clause 12 sets out CLAH's investigative powers, which by dint of cl 14.3 may be exercised by a receiver if appointed. If CLAH considers that an Event of Default has occurred, whether or not it is subsisting, CLAH may institute an investigation of the Collateral, financial affairs and condition and viability of the business of Ohmut. Clause 12.1 empowers an investigator to inspect the records of the Collateral and assets of Ohmut, value any Collateral, assets or business of Ohmut and report on those circumstances to CLAH. By clause 12.2, Ohmut agrees to cooperate fully with any investigator appointed by CLAH.

1. Applying the principles to which I have already referred and having regard to the fact that the agreement was executed as part of a suite of commercial documents, I find that in its proper construction, construed objectively and in context, the effect of the Ohmut GSA was as follows. The same analysis applies mutatis mutandis to the proper construction of the Parkway GSA.
2. First, Ohmut granted to CLAH a security interest in its "Collateral" being all of Ohmut's present and after-acquired property to secure payment of the Secured Money: cl 2.1(a).
3. Second, "Secured Money" is broadly defined in the Ohmut GSA but must satisfy the description of being money or damages that are owing or payable "for any reason or on any account whatsoever at any time under or in connection with the Transaction Documents". Secured Money expressly includes "money and damages payable... by [Ohmut] under any Guarantee". To fall within the definition of Secured Money, the liability to pay must arise under or in connection with the Transaction Documents. On the proper construction of cl 3.1 of the Ohmut GSA, Ohmut's obligation to pay to CLAH the Secured Money, includes all moneys owed by Ohmut to CLAH under, or in connection with, the Ohmut Mortgage because the Ohmut Mortgage is relevantly one of the documents within the definition of Transaction Documents. The Parkway GSA is also a document which falls within the definition of Transaction Documents. A liability to pay money that does not arise under or in connection with the Transaction Documents will not be captured by the definition of Secured Money. The definition of Secured Money is broader in the Ohmut Mortgage than in the Ohmut GSA. The phrase "in connection with the Transaction Documents" does not appear in the definition of Secured Money in the Ohmut Mortgage. Clause 3.1 of the Ohmut GSA directed to the Transaction Documents, which includes the Ohmut Mortgage, imports the more extensive reach of the term Secured Money in Ohmut Mortgage to the Ohmut GSA.
4. Third, the Ohmut GSA creates a first ranking security interest over the Collateral in favour of CLAH: cl 2.5. A liability to pay money that does not arise under or in connection with the Transaction Documents will not be captured by the definition of Secured Money and will not be subject to the Security Interest in the Collateral that is the subject of the Ohmut GSA unless that liability is a liability that is captured by the broader definition of Secured Money in the Ohmut Mortgage and in turn captured by the phrase "in connection with the Transaction Documents", the Ohmut Mortgage being one of the Transaction Documents.
5. Fourth, upon the occurrence of an Event of Default, CLAH had the option under cl 13.1(b) of by notice declaring all or any part of the Secured Money to be due and payable:

(1) immediately;

(2) on demand; or

(3) at such later date as CLAH may specify in the notice.

1. Fifth, an Event of Default does not without more render Secured Money to be due and payable but a failure to pay Secured Money that is due will constitute an Event of Default.
2. Sixth, Ohmut's obligation to pay the Secured Money to CLAH is addressed in cll 3 and 13.1. Ohmut is required to pay either in accordance with any agreement that obliges Ohmut to pay the Secured Money: cl 3.1(a)(i), or if there is no agreement or there has been no Event of Default (whether continuing or not), then "on demand" in accordance with cl 3.1(a)(ii)(A) to (C). CLAH has an option that is exercisable at any time after an Event of Default has occurred to declare Secured Money to be due and payable immediately or as specified in the notice given by CLAH: cl 13.1(b).
3. Seventh, upon the occurrence of an Event of Default, each Security Interest becomes immediately enforceable, and CLAH is empowered to appoint Receivers to Ohmut: cl 14.1(a). This clause empowers CLAH to act swiftly to protect its interest in the Collateral with a view to recovering the Secured Money once due (whether by declaration following an Event of Default or otherwise).
4. Eighth, CLAH is not obliged to resort to any Collateral Security or enforce any rights against any other person before it resorts to enforcement of the Ohmut GSA: cl 15.5(b).
5. Ninth, Ohmut's obligation to pay the Secured Money is a primary obligation and CLAH is not obliged to proceed against or enforce against any other person before making a demand for payment by Ohmut of the Secured Money: cl 18.1.
6. Tenth, Ohmut's obligations and CLAH's rights under the Ohmut GSA are preserved against anything that "might abrogate, prejudice or limit them or the effectiveness of" Ohmut's obligations and CLAH's rights under the Ohmut GSA including any variation, release or discharge of any Transaction Document, which relevantly includes the Ohmut/Parkway Securities: cl 18.2(f).

1. I now turn to the Ohmut Mortgage. As mentioned, the definition of Secured Money in each of the Ohmut/Parkway Facility and the Ohmut GSA includes the requirement that the liability to pay must arise "under or in connection with the Transaction Documents". The Ohmut Mortgage is a Transaction Document as defined by the Ohmut/Parkway Facility and the Ohmut GSA. If an obligation arises for a Transaction Party to pay money to CLAH under or in connection with the Ohmut Mortgage, that obligation will be within the definition of Secured Money in the Ohmut/Parkway Facility and the Ohmut GSA. The phrase "in connection with" is a phrase of wide import.
2. The Ohmut Mortgage was signed for Ohmut by Ms Page in her capacity as sole director and secretary. Ohmut, in its own capacity and in its capacity as trustee for the Ohmut Trust, is defined as the Mortgagor. CLAH is defined as the Mortgagee.
3. The recitals to the Ohmut Mortgage are an acknowledgement of debt:

Acknowledgment of debt

1. [CLAH] has lent, or has agreed to lend, $510,000 (plus fees, charges, and (if applicable) capitalised interest) to [Ohmut] or at the request of [Ohmut]. This amount together with any further advances and financial accommodation (including, but without being limited to, any capitalised interest or fees), is called the principal sum.
2. [Ohmut] acknowledges indebtedness to [CLAH] for the principal sum and agrees to pay to [CLAH] the principal sum together with interest and all other money due to [CLAH] at the times agreed with [CLAH], or failing agreement on demand. For the avoidance of doubt, the principal sum forms part of the Secured Money.

1. It is common ground that the $510,000 referred to is the available limit under the Ohmut/Parkway Facility which designated Ohmut as a Borrower.
2. The reference schedule, which follows the acknowledgement of debt recitals, defines the Debtor as Parkway One (in its own capacity and as trustee of the Parkway One Trust), Ohmut (in its own capacity and as trustee of the Ohmut Trust) and Harmat (in its own capacity and as trustee of the Harmat Trust) (Item 1). This definition is then picked up in the definition of "Debtor" in cl 1.1(15) which provides:

Debtor means the person (other than [Ohmut]) named as a Debtor in Item 1 of the Reference Schedule and any person that [CLAH] and [Ohmut] agree in writing at any time is a Debtor for the purpose of this document;

1. The reference schedule defines the "Facility Agreement" as "any document that sets out the terms of payment of Financial Indebtedness by any Transaction Party to [CLAH]" including, without limitation, the Ohmut/Parkway Facility (Item 2). This definition of "Facility Agreement" in cl 1.1(22) which provides:

Facility Agreement means the document described as a Facility Agreement in Item 2 of the Reference Schedule and any other document that [CLAH] and [Ohmut] agree in writing at any time is a Facility Agreement for the purpose of this document;

1. Clause 1.1 relevantly includes the following definitions:

(a) this document;

(b) the Facility Agreement;

(c) any Collateral Security;

(d) any document or agreement relating to the priority of this document or any Security Interest that is a Collateral Security;

(e) any other document that the parties agree is a Transaction Document or a Finance Document for the purpose of this document; and

(f) any agreement or instrument created under any of the documents described in (a) to (e);

(52) Transaction Party means the Mortgagor, the Debtor (if any) and each other person who gives a Collateral Security or Guarantee or any one or more of them;

1. The term Transaction Party includes Parkway One, Ohmut and Harmat as well as Ms Page.
2. Clause 2 defines the scope of the mortgage given by Ohmut as "all of its interest in the Mortgaged Property to [CLAH] to secure the payment of the Secured Money". "Mortgaged Property" is defined in cl 1.1(36) by reference to 60 Harriet Street and Ohmut's estate and interest in 60 Harriet Street, including any improvements and ancillary rights.
3. Unlike the definition of Secured Money in the Ohmut/Parkway Facility and the Ohmut GSA, the definition of Secured Money in cl 1.1(45) of the Ohmut Mortgage does not include the constraint that the liability to pay the Secured Money must "arise under or in connection with a Transaction Document". Instead, "Secured Money" is expansively defined in cl 1.1(45) as follows:

(a) that now or in the future are owing or payable (actually or contingently) by a Transaction Party to the Mortgagee;

(b) that having now or in the future become owing or payable (actually or contingently) by a Transaction Party to the Mortgagee, cease to be owing under any Law relating to Liquidation and remain unpaid by a Transaction Party and unreleased by the Mortgagee; and

(c) that now or in the future there is a prospect may become owing or payable (actually or contingently) by a Transaction Party to the Mortgagee,

for any reason or on any account whatsoever, including but not limited to money and damages payable:

(d) by a Transaction Party under any Transaction Document;

(e) by a Transaction Party alone or jointly or separately with any other person;

(f) by a Transaction Party in its own right or in any capacity;

(g) to the Mortgagee in its own right or in any capacity;

(h) to the Mortgagee under any assignment or other disposition by any person in favour of the Mortgagee of a debt or other obligation payable by a Transaction Party to that person, irrespective of whether:

(i) any Transaction Party consented to or was aware of the assignment or other disposition;

(ii) the assigned or disposed of debt or obligation was secured; or

(iii) the assignment or other disposition took place before or after the delivery of this document;

(i) by a Transaction Party because of any relationship between a Transaction Party and the Mortgagee, including that of banker or Mortgagee (if applicable) and customer;

(j) by a Transaction Party as liquidated or unliquidated damages caused or contributed to by any breach by a Transaction Party of any obligation owed by a Transaction Party to the Mortgagee, any tort by a Transaction Party or any other act or omission of a Transaction Party;

(k) under any Guarantee relating to any financial accommodation or other obligations;

and where the Transaction Party would have been liable but for its Liquidation, it will be taken to remain liable;

1. For the purpose of the Ohmut Mortgage, the liability in relation to the Secured Money may arise "for any reason or on any account whatsoever". The list of subparagraphs in the latter part of each of the definitions of Secured Money in the Ohmut/Parkway Facility and Ohmut/Parkway Securities is otherwise in substance the same.
2. As with the relationship between the Shyzi Mortgage and the Shyzi GSA, the breadth of the phrase used in the Secured Money definition in the Ohmut Mortgage provides a significantly different introduction to the subparagraphs which follow from that used in the Secured Money definition in the Ohmut/Parkway Facility and the Ohmut GSA. In the Secured Money definition in the Ohmut Mortgage the liability in relation to the Secured Money may arise "for any reason or on any account whatsoever including but not limited to money and damages payable" within the circumstances described in subparagraphs (d) to (k). The first of the subparagraphs includes but does not limit the liability in relation to Secured Money to money that is payable "by a Transaction Party under any Transaction Document": cl 1.1(45)(d). The liability in relation to the payment of Secured Money includes but is not limited to money payable "under any Guarantee relating to any financial accommodation or other obligations": cl 1.1(45)(k).
3. By cl 1.1(45) of the Ohmut Mortgage, Secured Money means, amongst other things, all moneys that now or in the future are owing or payable by Parkway One, Ohmut, Harmat or Ms Page to CLAH for any reason or on any account whatsoever, whether under a Transaction Document or otherwise; or whether alone, or jointly or separately, or whether in their own right or capacity. Pursuant to cl 4.1 of the Ohmut Mortgage, Ohmut is obliged to repay the Secured Money to CLAH in accordance with the terms of the Transaction Documents or any other written agreement between CLAH and Ohmut, or if no payment is described in such documents, then on demand by CLAH.
4. The Events of Default for the purpose of the Ohmut Mortgage are provided for in cl 9. Relevantly, the Events of Default include a Transaction Party's failure to repay any part of the Secured Money when it falls due in accordance with its obligations under any Transaction Document (cl 9.2(1)), when an Insolvency Event occurs in relation to a Transaction Party (cl 9.5) and when a security interest becomes enforceable or is enforced over all or any of the assets and undertaking of a Transaction Party (cl 9.6). Clause 9.18 provides that it is an Event of Default under the Ohmut Mortgage if an Event of Default occurs under a Transaction Document. An Event of Default subsists until it has been waived in writing by CLAH or remedied to the satisfaction of CLAH: cl 1.2(8).
5. Clause 10.1 provides that if an Event of Default occurs, all the of Secured Money is, at the option of CLAH, immediately due for payment and Ohmut must pay it to CLAH on demand by CLAH, irrespective of any term to the contrary in any Transaction Document. The Ohmut Mortgage is consistent with the Ohmut GSA in that CLAH has the option of making the Secured Money immediately due for payment upon making a demand.
6. Clause 12 sets out CLAH's rights on the happening of an Event of Default, including that CLAH may, at its option, appoint one or more receivers (cl 12.1(2)). CLAH's power to appoint a receiver following an Event of Default occurring is not conditioned on a requirement for CLAH to give notice in advance of exercising that power: cll 12.1, 12.5.
7. Clause 13.1 confers various powers on CLAH following an Event of Default. This includes that CLAH may exercise these powers concurrently with a Receiver: cl 13.8. There is no requirement for CLAH to give notice prior to exercising the powers in cl 13.
8. Clause 17.3 provides that Ohmut's obligation to pay the Secured Money is a primary obligation and that CLAH is not obliged to proceed against any other person "before making demand for payment by [Ohmut] of the Secured Money".
9. Clause 17.4 preserves Ohmut's obligations and CLAH's rights under the Ohmut Mortgage against anything that might abrogate, prejudice or limit the effectiveness of the Ohmut Mortgage. Clause 17.4 of the Ohmut Mortgage is drafted in relevantly similar terms to cl 18.2 of the Ohmut GSA and lists similar circumstances, including an arrangement, composition or compromise with, or absolute or partial discharge or release of any person (cl 17.4(3)) and any act or omission by Ohmut or another person in relation to any Transaction Document including any variation, release or discharge of any of them (cl 17.4(6)). It also clarifies that in the context of cl 17.4, a reference to any person includes any Transaction Party.

1. Applying the principles to which I have already referred and having regard to the fact that the agreement was executed as part of a suite of commercial documents, I find that in its proper construction, construed objectively and in context, the effect of the Ohmut Mortgage was as follows.
2. First, Ohmut acknowledges that CLAH has lent, or has agreed to lend, "$510,000 (plus fees, charges, and (if applicable) capitalised interest" to Ohmut or at the request of Ohmut. I interpolate to note that there is no suggestion on the evidence that this is other than a reference to a loan made to Parkway One, Ohmut and Harmat pursuant to the Ohmut/Parkway Facility.
3. Second, Ohmut acknowledges "indebtedness" to CLAH for the "principal sum". Principal sum is acknowledged to mean "$510,000 (plus fees, charges, and (if applicable) capitalised interest" together with any further advances and financial accommodation (including, but without being limited to, any capitalised interest or fees). The term "financial accommodation" is used in the definition of Financial Indebtedness and extends to a liability for money borrowed and to a liability under any Guarantee.
4. Third, Ohmut acknowledges that it is obliged to pay to CLAH the principal sum together with interest and all other money due to CLAH at the times agreed with CLAH, or failing agreement on demand.
5. Fourth, the Debtor under the Ohmut Mortgage is each of Parkway One, Ohmut and Harmat.
6. Fifth, the Facility Agreement referred to in the Ohmut Mortgage is the Ohmut/Parkway Facility. While the Ohmut Mortgage contemplated that other facility agreements may be agreed to be a Facility Agreement under the Ohmut Mortgage, the evidence does not demonstrate that any other facility agreement was agreed to be a Facility Agreement under the Ohmut Mortgage.
7. Sixth, the definition of Secured Money under the Ohmut Mortgage relevantly extended to all money that now or in the future is or becomes payable actually or contingently by Parkway One, Ohmut, Harmat or Ms Page to CLAH which is unpaid by the relevant Transaction Party and unreleased by CLAH. Further, the definition extends to money in respect of which there is a prospect that it may now or in the future become payable by a Transaction Party to CLAH. As noted above, debts that fall within the definition of Secured Money under the Ohmut Mortgage are in turn picked up by the definition of Secured Money in the Ohmut GSA, because they are debts that arise in connection with the Transaction Documents.
8. Seventh, the definition of Secured Money under the Ohmut Mortgage expressly provides that the liability to pay Secured Money may arise "for any reason or on any account whatsoever" and includes but is not limited to money that is payable by a Transaction Party under any Transaction Document or under any Guarantee relating to any financial accommodation or other obligations.
9. Eighth, the Ohmut GSA is relevantly a Transaction Document as defined in the Ohmut Mortgage. If Ohmut is obliged to pay the Secured Money under cl 3.1 of the Ohmut GSA, then an obligation to pay will also arise under cl 4.1 of the Ohmut Mortgage. Conversely, on the proper construction of cl 3.1 of the Ohmut GSA, Ohmut is obliged to pay to CLAH the Secured Money, which includes all moneys owed by Ohmut to CLAH under or in connection with the Ohmut Mortgage.
10. Ninth, and relevantly in the present context, the Events of Default include when an Insolvency Event occurs in relation to a Transaction Party (cl 9.5). An Event of Default under the Ohmut Mortgage occurs if an Event of Default occurs under a Transaction Document: cl 9.18.
11. Tenth, if an Event of Default occurs, CLAH has the option of making all the Secured Money immediately due for payment and if CLAH exercises that option Ohmut must pay the Secured Moneys to CLAH on demand by CLAH, irrespective of any term to the contrary in any Transaction Document. The Ohmut Mortgage is consistent with the Ohmut GSA in that CLAH has the option of making the Secured Money immediately due for payment upon making a demand but an Event of Default will not, without more, cause Secured Money that is not otherwise due and payable to become immediately due and payable.
12. Eleventh, on the occurrence of an Event of Default, CLAH is empowered to appoint one or more receivers to Ohmut: cl 12.1(2). CLAH may further "do anything that a Receiver may do under cl 14": cl 12.1(3). CLAH's power to appoint receivers following an Event of Default occurring is not conditioned on a requirement for CLAH to give notice in advance of exercising that power or affording Ohmut a period of time to remedy the default: cll 12.1, 12.5. Like cl 14.1(a) of the Ohmut GSA, this clause empowers CLAH to act swiftly to protect its interest in the Collateral with a view to recovering the Secured Money once due (whether by declaration following an Event of Default or otherwise).
13. Twelfth, Ohmut unconditionally guarantees the due and punctual payment by Parkway One, Ohmut and Harmat of the Secured Money and will keep CLAH indemnified against all losses, damages, costs, charges and expenses that CLAH may incur by reason of or arising out of any default or failure for any reason on Parkway One, Ohmut and Harmat's part in the payment of the Secured Money or in the performance of Parkway One, Ohmut and Harmat's obligations to CLAH.
14. Thirteenth, the Ohmut Mortgage is a continuing security for the whole of the Secured Money and is not limited to any transaction or other thing.
15. Fourteenth, Ohmut's obligation to pay the Secured Money is a primary obligation and CLAH is not obliged to proceed against any other person "before making demand for payment by [Ohmut] of the Secured Money".
16. Fifteenth, Ohmut's obligations and CLAH's rights under the Ohmut Mortgage are preserved against anything that might abrogate, prejudice or limit the effectiveness of the Ohmut Mortgage. Clause 17.4 of the Ohmut Mortgage is drafted in relevantly similar terms to cl 18.2 of the Ohmut GSA which I have addressed above.
17. I will now turn to Issue 19(a), which as I have said I will address first.

11.5 Issue 19(a) - Pursuant to the terms of Ohmut GSA, did the liquidation of Parkway One provide a lawful basis for the valid appointment of the Ohmut Receivers pursuant to s 418A of the Act?

1. I refer to the observations I have made above under the heading Overview in relation to Issue 19(a). The plaintiffs challenge the appointment of the Ohmut Receivers on broadly the same basis as they challenged the appointment of the Shyzi Receivers. The plaintiffs contend that no debt was owed by Ohmut to CLAH on the date on which the Ohmut Receivers were appointed and that this supplies the basis upon which the Court should declare the appointment of the Ohmut Receivers to be invalid. The specific ground on which the plaintiffs challenge the appointment must fail for two principal reasons.
2. First, on a proper construction of the relevant GSAs, the power to appoint a receiver was conditioned on the occurrence of an Event of Default, and not on the existence of present debt that was immediately due and payable. On the proper construction of the Ohmut GSA, proof of present indebtedness is not essential to establish that the validity of the appointment of the Ohmut Receivers for the purposes of s 418A(1) of the Act. The defendants rely on the same authorities as they relied on in their submissions on this issue in relation to Shyzi: see Sue Dwyer at [18]; Canberra Advance; Paul Kennedy Transport.
3. Second, the defendants have established that an Event of Default had occurred prior to the appointment of the Ohmut Receivers and that it remained extant as at the date the Ohmut Receivers were appointed. Parkway One went into liquidation on 19 August 2019. This relevantly gave rise to an Event of Default under cl 10.1(d) of the Ohmut GSA which enlivened the power to appoint a receiver to Ohmut pursuant to cl 14.1(a) of the Ohmut GSA. Under cl 10.1(d) it is an Event of Default if a Transaction Party becomes Insolvent, as that term is defined by cl 1.1(dd). Parkway One was a "Transaction Party" within the meaning of cl 1.1(eee) - it had given a "Collateral Security" as defined in cl 1.1(h). Parkway One had provided security for the obligation to repay the Secured Money under the Ohmut/Parkway Facility. Upon being placed in liquidation, Parkway One was Insolvent within the meaning of cl 1.1(dd) of the Ohmut GSA.
4. The plaintiffs do not make any submission which parallels that made with respect to the claims against Shyzi, namely that the Event of Default was relevantly waived in writing or otherwise remedied to CLAH's reasonable satisfaction in accordance with cl 1.2(h) of the Ohmut GSA and cl 1.2(8) of the Ohmut Mortgage.
5. The defendants have established that an Event of Default had occurred and was subsisting at the relevant time. The defendants have discharged their onus in proving that the appointment of the Ohmut Receivers was valid pursuant to the terms of the Ohmut GSA. Proof of present indebtedness is not required but for the reasons which follow, I am in any event satisfied that at the time of the appointment of the Ohmut Receivers, Ohmut was relevantly indebted to CLAH and that debt was secured by the Ohmut GSA.
6. The relief sought by the plaintiffs pursuant to s 418A of the Act in respect of the appointment of the Ohmut Receivers must fail. The specific ground relied upon by the plaintiffs to challenge the appointment of the Ohmut Receivers is that no debt was owed by Ohmut to CLAH on the date on which the Ohmut Receivers were appointed. The plaintiffs' contention is misconceived on the proper construction of the Ohmut GSA and of the appointment power. That power was enlivened on the occurrence of an Event of Default which occurred upon Parkway One being placed into liquidation. In any event, as I have said, the factual premise that Ohmut did not owe any debt to CLAH as at the date of the Ohmut Receivers being appointed is not made out for the reasons I address below.

11.6 Issues 19(b) to 19(d) - Miscellaneous relief

1. As I have mentioned, the parties did not wish to be heard on these issues until after determination of the plaintiffs' application under s 418A of the Act. As mentioned earlier, in closing submissions, the plaintiffs submitted that relief under s 599 was directed to preventing the sale of assets and had been overtaken by the grant of injunctive relief. The proceeding will be listed for a case management hearing after the parties have had the opportunity to consider these reasons.

11.7 Issue 8 - Was the advance of $500,000 by CLAH in August 2016 a loan to Elefteria or Ohmut?

1. Issue 8 arises as follows. The plaintiffs make the following allegations which, in the main, are denied by the defendants.
2. In August 2016, Elefteria required funding of $500,000 for the purposes of settling proceedings brought by Elefteria against Mr Pitsis in the Supreme Court of New South Wales in May 2016 (Pitsis Settlement).
3. By way of background, in 2013, Mr Pitsis commenced proceedings against Mr Page, Elefteria and others in the Supreme Court of New South Wales. On 28 May 2015, this proceeding settled, and a consent judgment was entered. As part of the consent judgment, inter alia, a declaration was made that several properties owned by Elefteria were each the subject of an equitable charge in favour of Mr Pitsis as security for the payment of $1.84 million. Following the consent judgment, Mr Pitsis lodged a caveat over several properties owned by Elefteria. After the settlement was agreed, Mr Page apprehended that Mr Pitsis was moving to bankrupt him and so Mr Page then petitioned for bankruptcy. Mr McDonald, a barrister, was appointed as his trustee in bankruptcy on 28 May 2015.
4. I interpolate to note that Mr McDonald features in disparate parts of the evidence led in this case. As I have said, Mr McDonald was practising during the relevant period as a barrister. He also acted as Mr Page's trustee in bankruptcy in the period of Mr Page's bankruptcy. Mr McDonald acted for Ms Page in two unsuccessful attempts to terminate the winding up of Parkway One. He also acted for CLAH on Mr Baker's instructions in advising on means by which CLAH could ensure that it was fully secured and positioned to pursue Overland for debts incurred by Tallywalker. This latter topic is addressed in part 12 of these reasons.
5. In May 2016, Elefteria commenced a new proceeding seeking the withdrawal of the caveat Mr Pitsis had lodged over one of Elefteria's properties, the property located at 21‑23 Robertson Street, Carrington. Mr Pitsis filed a cross-claim seeking judicial sale of two of the properties owned by Elefteria, including the Robertson Street property. The parties agreed to settle the 2016 proceeding and the Pitsis Settlement was recorded in a confidential Deed of Settlement and Release executed by Mr Pitsis and Elefteria in August 2016.
6. Ms Page says that she approached Mr Baker for short-term financial assistance for this purpose. She says that CLAH, through Mr Baker, agreed to advance a loan, however, Mr Baker requested that the named borrowers be Parkway One and Ohmut, rather than Elefteria. Mr Baker told Ms Page that this was necessary because CLAH was an unlisted public company and a loan to Parkway One and Ohmut would be better received by the directors and any future auditors of CLAH. The plaintiffs assert that Mr Baker insisted that the loan to Elefteria be "dressed up" as a loan to Parkway One and Ohmut and that Ms Page agreed. She says that she did so for the same reason as she gave in relation to many of the disputed dealings with Mr Baker in these proceedings - because she had had a long and friendly association with Mr Baker and trusted him. The plaintiffs maintain that Ms Page subsequently instructed Catalyst Legal to pay the $500,000 to Mr Pitsis to effect the settlement.
7. The defendants admit that the Ohmut/Parkway Facility was executed and that CLAH advanced the principal sum of $500,000 to Catalyst Legal, but submit that the advance was made in accordance with directions given by Ohmut, which was one of the Borrowers and for whom Catalyst Legal were acting on the transaction. The defendants deny Ms Page's account of the purpose of the $500,000 advance and contend that Mr Page, on behalf of Parkway One and Ohmut, negotiated the terms of the advance of $500,000 to Parkway One and Ohmut and the security for the advance. The defendants further submit that the purpose for which the advance was made and to which the advance was put does not matter. Even if CLAH was aware that the purpose of the loan to Parkway One and Ohmut was to be used to pay out the obligations of Elefteria, that does not change that Parkway One and Ohmut are obliged to repay the advance to CLAH in accordance with the terms of the Ohmut/Parkway Facility, regardless of the true purpose for which the loan was sought, and howsoever it was applied.
8. Considerable effort was devoted to the contest between the parties as to the genesis of the Ohmut/Parkway Facility and the purpose of the $500,000 advance. The parties have framed this issue as to whether the advance of $500,000 by CLAH in August 2016 was a loan to Elefteria or Ohmut. For the reasons which follow, my conclusion in relation to Issue 8 is that the $500,000 advanced by CLAH was advanced pursuant to the Ohmut/Parkway Facility to the Borrowers under that facility which relevantly included Ohmut, and did not include Elefteria. Accordingly, the loan of $500,000 was not a loan to Elefteria.
9. The plaintiffs' position on this issue was inconstant, and it was difficult to discern how the varying stances adopted by the plaintiffs were relevant to the relief sought under s 418A of the Act. The plaintiffs' position shifted in the way in which it was framed in the pleading, the way in which it was opened and the way in which it was closed.
10. The plaintiffs' position on this issue is ultimately confined by the evidence given by Ms Page, the key parts of which are extracted above. The critical conclusions that flow from Ms Page's evidence are that she, in her own right and as sole director of Ohmut, Parkway One and Harmat, executed all the relevant commercial documents including the Ohmut/Parkway Facility and the Ohmut/Parkway Securities, after reading the agreements and in respect of which she received legal advice fairly shortly thereafter. In doing so, she understood that in order to obtain the loan from CLAH that she wanted, it was necessary to execute the documents in the form in which they were in and that is what she knowingly did. Ms Page now asserts that, as with the Carrabolla Facility, she executed the documents with CLAH to help Mr Baker get the approval past the CLAH board so that she and her companies could obtain the funding they needed from CLAH. In this instance, Ms Page says that the real reason she needed the advance was that her company, Elefteria, required $500,000 to settle the Pitsis litigation. She says that Mr Baker knew this and in effect worked with her (and on the plaintiffs' evidence, with Mr Page) to produce documents that would facilitate the extraction of the requisite funds from CLAH.
11. What is missing from the plaintiffs' case on this issue is an explanation of why, if Ms Page's evidence is accepted, it makes any difference if she and Mr Baker had a private arrangement by which they acted together to cause documents to be executed which falsely represented the purpose for which the advance was to be made so that the funds could be obtained from CLAH. Even if there was an agreement to this effect between Ms Page and Mr Baker, the plaintiffs do not proffer a legal rationale for why that would vary the agreements entered into by Ms Page, Ohmut, Parkway One and Harmat with CLAH or otherwise operate as a collateral agreement that relevantly impacts the enforcement of CLAH's rights under the Ohmut/Parkway Facility and the related security agreements, as documented.
12. The plaintiffs do not contend that the Ohmut/Parkway Facility is a sham. Nor could they realistically do so in circumstances where at the time the agreements were executed, Ms Page, Ohmut, Parkway One and Harmat intended that the agreements should bear their apparent legal consequence, namely that CLAH would make the Advance Facility Limit available to the Borrower(s) and make advances in accordance with Drawdown Notices given to CLAH by the Borrower(s): see Lewis v Condon [2013] NSWCA 204 at [68]- [70] (Leeming JA, with whom McColl JA (at [1]) and Sackville AJA (at [118]) agreed).
13. The agreements as executed operate according to their terms properly construed and not according to the subjective intention of Ms Page, even if that intention was known to Mr Baker. That being so, it does not much matter whether the $500,000 advanced by CLAH under the Ohmut/Parkway Facility was used to supply Elefteria with funds to effect the Pitsis Settlement or was used in accordance with the documented purpose expressly set out in the Ohmut/Parkway Facility. The dispute between the parties does not concern any claim for breach of the Ohmut/Parkway Facility on the basis that the funds (which it is common ground were advanced pursuant to the Ohmut/Parkway Facility) were used for a purpose other than that for which the facility provided. Likewise, this is not a claim for misrepresentation inducing entry into the said agreements. As I have said, there is no claim for the documents to be set aside as a sham.
14. What is presently relevant is that Ms Page, who the plaintiffs rely on as the relevant decision maker, maintains that the $500,000 advance was an advance under the Ohmut/Parkway Facility. Ms Page agreed that this advance was made under the Ohmut/Parkway Facility. As such, the advance is secured by, amongst other things, the Ohmut GSA.
15. Under the Ohmut/Parkway Facility, Parkway One, Ohmut and Harmat are collectively and severally the Borrower. The Drawdown Notice in respect of the advance of $510,000 (being the whole of the available Advance Facility Limit) dated 17 August 2016 was signed by Ms Page in her personal capacity as Guarantor and also on behalf of each of Parkway One (in its own capacity and as trustee for the Parkway One Trust), Ohmut (in its own capacity and as trustee for the Ohmut Trust) and Harmat (in its own capacity and as trustee for the Harmat Trust) who are each described as being collectively and severally the Borrower in the Drawdown Notice as well as under the facility.
16. It is common ground that $500,000 was advanced by CLAH to the trust account of Catalyst Legal on 15 August 2016 in accordance with a direction by the Borrowers. The Drawdown Notice does not include instructions as to where the funds were to be remitted. That direction came from Mr Page, who was the agent of each of the Borrowers and was authorised by to act on their behalf to request the drawdown of the facility. The documentary evidence for each drawdown directed by Mr Page demonstrates that Mr Page was acting on behalf of the Borrowers in his dealings with Mr Baker. Ms Page's involvement in such dealings was limited to signing the relevant transaction documents. I readily infer that Ms Page had authorised Mr Page to act for each of the Borrowers and on her behalf in her capacity as the guarantor.
17. Mr Page provided the relevant bank details for Catalyst Legal's trust account by email to Mr Baker on 15 August 2016.
18. Catalyst Legal were acting for Ms Page and her companies in relation to the Ohmut/Parkway Facility and the related securities. Catalyst Legal were also acting for Elefteria in relation to the Pitsis Settlement. I reject the plaintiffs' submission that the $500,000 was a loan to Elefteria and was remitted to Catalyst Legal on that basis. As I have said, Ms Page accepts that the advance was made and that it was made under the Ohmut/Parkway Facility. If the plaintiffs are correct in their contention that the $500,000 was ultimately used in connection with the discharge of Elefteria's liability under the Pitsis Settlement, that does not detract from the fact that the loan was made to the Borrowers under the Ohmut/Parkway Facility, which relevantly included Ohmut, and not Elefteria. If the funds were subsequently used to discharge Elefteria's liability in relation to the Pitsis Settlement, then that was not as a result of any direct dealing between CLAH and Elefteria. CLAH advanced the funds pursuant to Ohmut/Parkway Facility which was confirmed by a drawdown notice executed by each of the Borrowers. The funds are repayable in accordance with the terms of that facility.
19. For these reasons Issue 8 is answered as follows - the advance of $500,000 by CLAH in August 2016 was a loan under the Ohmut/Parkway Facility. It appears to be common ground that the funds were advanced to Ohmut, notwithstanding that the Drawdown Notice was signed on behalf of each of Ohmut, Parkway and Harmat collectively and severally as the Borrower. Accordingly, I find that the advance of $500,000 by CLAH in August 2016 was an advance to Ohmut.

11.8 Issue 9 - What advances, if any, did CLAH make to Ohmut under the Ohmut/Parkway Facility?

1. In addition to the $500,000 advanced in August 2016 under the Ohmut/Parkway Facility, the defendants contend that between 13 January 2017 and 7 June 2018, Ms Page requested advances, amounting to at least $662,719, which were applied to works that were being carried out at the Cooks Hill Property and 60 Harriet Street. The plaintiffs accept CLAH made payments in the total sum of $662,719 but contend that these payments were made in reduction of CBD Sydney Investments' obligations under the alleged Trust Investment Agreement. Ms Page claimed she understood CLAH to be funding CBD Sydney Investments by making these payments.
2. Before moving to address the competing claims in relation to the existence of the alleged Trust Investment Agreement, I will first address whether in the event that the plaintiffs do not prove the existence of the alleged Trust Investment Agreement, the defendants have proved that any of the advances that make up the total sum of $662,719 were made under the Ohmut/Parkway Facility.
3. For the Ohmut/Parkway Facility, the Advance Facility Limit was $510,000, the Availability Expiry Date was 19 August 2016 and the Expiry Date was three months after the first Drawdown Date, which was 15 November 2016 (the first drawdown having occurred on 15 August 2016 as confirmed by the Drawdown Notice signed on 17 August 2016).
4. Mr Baker agreed in cross-examination that the Advance Facility Limit for the Ohmut/Parkway Facility was not increased at any time subsequent to the execution of the facility. He further agreed that the "expiry date came and went". Mr Baker claimed he was in discussions with Mr Page throughout 2016 and 2017 to have the Ohmut/Parkway Facility repaid. He further claimed that the CLAH board left him to administer this loan but claimed that he regularly reported orally to the CLAH board about the status and recoverability of this loan. There is no documentary trace of any reports being delivered orally or otherwise to the board. Mr Mitropoulos, who was the only relevant director called by the defendants, has not given any evidence that supports Mr Baker's assertions in relation to this facility. I infer that any evidence that Mr Mitropoulos may have given on this topic would not have assisted the defendants' case.
5. Mr Baker was cross-examined on the basis that the requirement for a Drawdown Notice under cl 4 of the Ohmut/Parkway Facility was not observed, a proposition with which he agreed. It is correct that the Drawdown Notice for the first drawdown was not provided prior to that advance being made, but that situation was remedied shortly thereafter when Ms Page executed the Drawdown Notice dated 17 August 2016 to which I have referred.
6. In so far as the defendants contend that there were further drawdowns under the Ohmut/Parkway Facility after the first drawdown in August 2016, they do not claim that the Borrower submitted Drawdown Notices as required by cl 4 of the Ohmut/Parkway Facility. Mr Baker says that the requests for drawdowns were made orally and not confirmed by the Borrower in writing. That is not consistent with the requirements of the Ohmut/Parkway Facility. I find it more likely that the advances made by CLAH that totalled $662,719 were made on an ad hoc undocumented basis. They were not requested as or made as drawdowns on the Ohmut/Parkway Facilty. These loans were debts that were repayable on demand. To the extent that these advances came within the definition of Secured Money the obligation to repay these amounts was secured under the Ohmut and Parkway Securities.
7. On the whole of the evidence before me it is clear that Mr Baker caused CLAH to advance funds to Ms Page and her companies as a result of requests being made by Mr Page on an ongoing basis and that those advances were made quite separately to the short-term facilities that were formally drawn up, that is the Carrabolla Facility and the Ohmut/Parkway Facility. The absence of drawdown notices and that the alleged advances were made well after the documented availability period expired is consistent with the fact that the Ohmut/Parkway Facility was a short-term facility that was effectively exhausted after the first advance was made. The defendants' assertion that further advances were made under the Ohmut/Parkway Facility does not rise above mere assertion.
8. Mr Baker said in cross-examination:

If auditors wanted to see the drawdown notices, where would they find them?---Yes. We went through this yesterday. The auditors reviewed - there were no drawdown notices.

So they wouldn't find them?---The auditors - absolutely. The auditors go to the ledger, and they can see the transactions in terms of the loan drawdowns that were made. They would comprehensively review the documentation. They would review any other documentation, including valuations that we have on file. And, as I said to you yesterday, we have been through three sets of auditors that have followed through our procedures in respect of loans with flying colours.

1. Although Mr Baker did not say so in terms, I find it more likely that in circumstances where CLAH had in place all moneys securities with adequate loan to value ratios supported by valuations, the auditors did not question the making of individual advances. As to the auditors going to the "ledger", I repeat my earlier observations about the defendants' failure to adduce the relevant loan ledgers in evidence or indeed any of the primary documents that one would expect to be kept by a public company making loans to unrelated companies. I infer that these records, had they been produced, would not have assisted the defendants' case.
2. The plaintiffs allege that the further advances made by CLAH in connection with the refurbishments of 60 Harriet Street and the Cooks Hill Property were part of the arrangement struck in respect of the payment by CBD Sydney Investments for the units it subscribed for in the Parkway One Trust and Ohmut Trust pursuant to the alleged Trust Investment Agreement. As I have said, it is common ground that CLAH paid to the sum of $662,719 to Parkway One and/or Ohmut. For the purpose of Issue 9, the question is whether $662,719 was advanced under the Ohmut/Parkway Facility, assuming for present purposes that the plaintiffs do not prove the alleged Trust Investment Agreement.
3. The defendants have not established that the payments totalling $662,719 advanced by CLAH between 13 January 2017 and 7 June 2018 were advances made under the Ohmut/Parkway Facility. My reasons for so concluding are that in its proper construction, which is on all fours with the proper construction of the Carrabolla Facility, the Ohmut/Parkway Facility was a short-term facility which had an Advance Facility Limit of $510,000 which was available to be drawn for a very short period, a matter of five days.
4. The Ohmut/Parkway Facility was in fact effectively fully drawn on the same day as it was executed. There is no evidence that the Availability Period was extended and to do so would have required a variation in writing, of which there is no evidence. Similarly, the Ohmut/Parkway Facility expired on 15 November 2016 and the Expiry Date was not varied or extended. Mr Baker accepted as much in his cross-examination. There is no entitlement to redraw any repayments made under the Ohmut/Parkway Facility unless otherwise agreed by CLAH (cl 2.3) and there is no evidence of any written agreement from CLAH permitting any redraw.
5. The defendants claim that further funds were advanced under the Ohmut/Parkway Facility relies on Mr Baker's evidence and on CLAH's internal records which I do not regard as reliable for the reasons I have already given in my consideration of the claims against Shyzi. The Debt Particulars Schedule 3 which catalogue the defendants' claim under the Ohmut/Parkway Facility are not supported by reliable primary contemporaneous records between the parties to the facility and are rather the product of the arbitrary reconstruction of the arrangements between CLAH and Ohmut. The Debt Particulars have been produced on the basis of Mr Baker's instructions, including his historical directions about fund outflows from CLAH to various Page related entities being allocated to the Ohmut/Parkway Facility. There is a glaring absence of any documents from the alleged Borrowers requesting the advances to be made under the Ohmut/Parkway Facility. Similarly lacking in the evidence are contemporaneous inter-party communications between CLAH as Financier and Ohmut as Borrower that support that these payments were made under the Ohmut/Parkway Facility.
6. Accordingly, Issue 9 is answered that apart from the initial advance made on 15 August 2016, no further advances were made under the Ohmut/Parkway Facility to Ohmut.

11.9 Issues 10 to 13 - The alleged Trust Investment Agreement

1. The existence of the alleged Trust Investment Agreement is the subject of Issue 10. Issues 11 to 13 arise for consideration if the plaintiffs succeed in establishing that the alleged oral Trust Investment Agreement was made. Issue 11 is addressed to whether pursuant to the Trust Investment Agreement the liability to repay $500,000 to CLAH (whether a liability of Ohmut or Elefteria) was discharged, forgiven or set off under the terms of that agreement. Issue 12 is addressed to whether amounts paid by CLAH between 13 January 2017 and 7 June 2018 were payments made pursuant to the Trust Investment Agreement which have been wrongly debited to the Ohmut/Parkway Facility. Issue 13 is addressed to whether Ms Page and Mr Baker, being the parties to the alleged Trust Investment Agreement, have abandoned or abrogated the Trust Investment Agreement.

11.9.1 Issue 10 - Did Mr Baker and Ms Page enter into a Trust Investment Agreement in or about January 2017 in relation to the acquisition by CBD Sydney Investments Pty Ltd of units in the Parkway One Trust and the Ohmut Trust?

1. The plaintiffs allege that CLAH has wrongly debited to the Ohmut/Parkway Facility account the so-called Trust Investment Payments which they contend were paid between 13 January 2017 and 7 June 2018 pursuant to the alleged Trust Investment Agreement reached between Mr Baker and Ms Page in early January 2017. As discussed above, the Trust Investment Payments are alleged by the plaintiffs to have been made as part of the consideration for the acquisition by CBD Sydney Investments of units in the Parkway One Trust and the Ohmut Trust which Ms Page says she understood was being funded by CLAH.
2. For the reasons I have given in relation to Issue 9, the alleged Trust Investment Payments were not drawdowns under the Ohmut/Parkway Facility. That does not mean however that those payments are not otherwise repayable and if repayable, potentially secured by the Ohmut/Parkway Securities. If the plaintiffs do not prove the Trust Investment Agreement was made, the so‑called Trust Investment Payments which were made by CLAH (and not Mr Baker) will be debts that are repayable on demand and if those debts fall within the definition of Secured Moneys, they will be secured by the Ohmut and Parkway Securities. Apart from the alleged Trust Investment Agreement, the plaintiffs do not allege that any other agreement was in place in relation to the advance of these funds by CLAH to Ohmut and Parkway One.
3. The starting point is to determine whether the plaintiffs have proved on the civil standard that the Trust Investment Agreement was made and if so, the terms of that agreement. As I have said, it is common ground that between 13 January 2017 and 7 June 2018, Ms Page made requests for and CLAH advanced the sum of at least $662,719 which was applied to renovation or refurbishment works being carried out at 60 Harriet Street and the Cooks Hill Property. Both properties had boarding houses on them and appear to have been operated as such but were also undergoing piecemeal refurbishment.
4. I apply the principles which I have identified at paragraphs [31] and [411]-[412] above as to the approach to finding oral contracts, particularly in light of inconsistencies between evidence of the three central protagonists. I refer to the principles set out by the High Court in Equuscorp at [31]-[41], in particular that oral evidence of an alleged consensus is required to be "sufficiently certain to admit of enforcement" and "definite about who agreed what, with whom" with a degree of precision: at [37].
5. Part of the relevant context for the alleged Trust Investment Agreement is that Ohmut owned 60 Harriet Street and Waratah One Pty Ltd, a wholly owned subsidiary of CLAH, owned the property at 58 Harriet Street, Waratah, which is the adjacent corner property to 60 Harriet Street. Ms Page's evidence was that Ohmut acquired 60 Harriet Street from Waratah One on or about 1 April 2010. Ms Page said that she, with Mr Page's help, spent years undertaking extensive refurbishments of the property after acquiring it in 2010.
6. Around mid-2016, Ohmut commenced an application to have 60 Harriet Street rezoned from R2 low density residential to R3 medium density residential with the City of Newcastle. The plaintiffs contend that the purpose of the rezoning application was to facilitate the development of the property into units or retirement facilities. The rezoning was approved and notified to Ohmut by letter dated 17 April 2018. The rezoning approval was in respect of both 58 and 60 Harriet Street as well as 115 Christo Road, Waratah. The plaintiffs allege that the joint rezoning application reflects what was agreed in the Trust Investment Agreement. Mr Baker's evidence is that he was asked by Mr Page and agreed to join in the rezoning application so that it extended to 58 Harriet Street in order to improve the likelihood that the application would be approved. Mr Baker asserts that 58 Harriet Street was fully redeveloped and that the rezoning approval was not for the benefit of Waratah One.
7. In around early 2017, renovation work was commenced on a room-by-room basis at the boarding house on the Cooks Hill Property. Ms Page gave evidence that she requested funds from Mr Baker for the renovations at the Cooks Hill Property as the work took place and Mr Baker provided the funds to cover the renovation works as payments under the alleged Trust Investment Agreement. Mr Baker accepted that he did not receive any documentation supporting the nature and cost of the renovation works. At times, Ms Page's requests for funds from CLAH would be in the form of an email to Mr Baker listing the relevant renovation expenses for the sites. For example, on 21 April 2017, Ms Page sent an email to Mr Baker with the subject line "today's payments listing" requesting the deposit of funds into Parkway One's account to cover cheque payments made for various maintenance, electrical and trades invoices which related to inter alia the Cooks Hill Property and "Harriet Street". Emails in a similar form were sent by Ms Page to Mr Baker on 24 March 2017, 5 May 2017, 19 May 2017 and 9 June 2017. No invoices were attached to these emails.
8. Ms Page gave evidence that in around August 2017, refurbishment work was "going on at both" 60 Harriet Street and the Cooks Hill Property and that Ms Page had discussed with Mr Page the renovations at both sites. This included that Mr Page and Ms Page knew that contractors and tradespeople were engaged and that funds were required in order to pay the contractors and tradespeople in relation to both sites:

Now, taking you back to August 2017, at that time, Parkway was in the process of refurbishing the property at 82 Parkway Avenue, Cooks Hill; correct?---Yes, we were doing works; correct.

And Ohmut was in the process of refurbishing a property at 60 Harriet Street, Waratah; correct?---Yes, there was refurbs going on at both; correct.

And you needed funds in order to pay contractors working on those sites; correct?---Of course, yes.

And you discussed the need for more funds with Lemuel, didn't you?---I beg your pardon?

You discussed the need for more funds with Lemuel; correct?---Lemuel knew of the works going on. He knew of the trades that were engaged, so he was involved in the knowings of what was going on at both sites; correct. Yes.

1. Mr Page said that more funds were needed in order to pay contractors who were working on the sites and that he had discussed the need for more funds with Ms Page. He maintains that he was not directly involved in negotiating a loan from CLAH to assist with funding the renovation works.
2. There is no evidence of any building contracts for these renovations, nor any short, medium or long-term arrangements with any builders for the 60 Harriet Street or the Cooks Hill Property refurbishments. The evidence for 60 Harriet Street is limited to the rezoning application and does not extend to the refurbishments. There are minimal records in respect of the Cooks Hill Property renovation expenses referred to in correspondence by Ms Page and/or Mr Baker, including for example, invoices from tradespeople. Ms Page conceded that there were "a lot of emails at this time ... which recorded those expenses which were being undertaken at the boarding house at the Cooks Hill property" and that she did not disclose them all in her affidavit.
3. In this context, the plaintiffs allege that the Trust Investment Agreement was an oral agreement reached between Mr Baker and Ms Page in early January 2017 (PFASOFC, [71]). The defendants deny this allegation.
4. As mentioned, Ms Page regularly sent email requests to Mr Baker for funds to be paid by CLAH to Parkway One and/or Ohmut as part of the alleged Trust Investment Agreement. Ms Page was cross‑examined about one of her email requests sent to Mr Baker on 4 June 2018 with the subject "funds transfer ?". The email states:

Theo,

I need funds to cover an account currently in debit.

Lorren is keeping payments at bay from bouncing, but can only withhold until 4pm .

I'm reaching out to see if your able to assist with a $20,000.00 funds transfer?

If you can, then please action a funds transfer today for the following:

Ohmut Pty Ltd NAB a/c [XXXXXX] - [XXXXX]6519

Best,

Fiona .

1. Ms Page was asked whether she was asking Mr Baker for money as a favour rather than asserting a legal obligation pursuant to the Trust Investment Agreement. Ms Page denied this. When asked why Ms Page did not make any demand for Mr Baker to pay the $1.5 million pursuant to the Trust Investment Agreement, she said she wouldn't "say or talk like that with him" and that she "actually felt sorry for him" because the money was "not coming in" from the mining business in the way Mr Baker had planned. Ms Page's evidence was that by June 2018, Mr Baker had ceased to make any financial contributions under the Trust Investment Agreement. She said that Mr Baker told her he could not make any contributions because he was under financial pressure from his mining business and building his house at Clovelly. No steps were taken by Ms Page or any of her companies to enforce the Trust Investment Agreement at this time, even though on Ms Page's evidence the bills were "piling up". Ms Page once again referred to their friendship with Mr Baker as a reason for not enforcing the terms of her alleged investment arrangement:

We were friends and business - business partners and I'm asking him - I'm letting him know that things are piling up and I need $20,000, could he do his best.

1. The following passage of Ms Page's evidence given in cross-examination highlights the inconsistency between what she now contends was Mr Baker's legal obligation under the alleged Trust Investment Agreement and what she did at the time when she and her companies were in dire financial circumstances:

Now, Ms Page, we're now about a year and a half down the track - - -?---Yes.

- - - from the January 2017 discussions about issuing units to CBD Sydney Investments in the Parkway Trust and the 101 Mile Unit Trust; correct?---Yes.

Right. And your contention in this case is that CBD Sydney Investments had a legal obligation to pay either two million or one and a half million dollars for the issue of those units; correct?---I had an agreement with Theo - - -

Is that correct? Is that your contention - - -?---What - - -- - - as you understand it?---What is your question, please?

Yes. You're contending in these proceedings that CBD Sydney Investments, as you understand it, was legally obliged to pay either $2 million dollars or one and a half million dollars for those units; correct?---The paperwork I signed was to do with an - - -

Is that your contention or not?---I had a - a relationship and a - - -

Is that your contention or not?---That - - -

Is that your contention in this case or not?---The - the buy-in agreement was $1.5 million. Theo Baker was my business partner. CBD Sydney Investments had a 50 per cent shareholding in Parkway One Unit Trust and 101 Mile Unit Trust.

Right. So you're claiming - is this right - - -?---Yes.- - - that CBD Sydney Investments owed you or your companies, at this point in time, one and a half million dollars for the issue of those units? Is that what you're claiming?---Theo was paying me as the refurb works were going on and I was quite happy for that. I never asked for 1.5 million dollars in a suitcase. It was agreed that, as the refurb works required it, running expenses were required, I needed to email Theo and then he would put the funds into the accounts.

Ms Page, you never asked Mr Baker for one and a half million dollars at all, did you? What's your answer to that?---I - I don't understand what you're talking about. You never - you never - - -?---We had an agreement.

You never said to Mr Baker, "You've failed to pay the one and a half million dollars that you promised to pay for the issue of those units"?---I wouldn't - I wouldn't ring him and say something like that. He was under pressure. We were talking about what was going on. He was telling me that the mining business in - is not going the way he wants. He wasn't getting funds coming in. He was building his house at Clovelly. He was changing his mortgage from a construction loan to a mortgage loan. He was under immense pressure. He couldn't pay wages. He couldn't give me any contributions. I was getting to the point, I had - like I said to you - I had my conveyancing lawyer issue letters to all - lots of people saying, "When these properties are sold, from the sale proceeds, my office guarantees I will pay this bill." As I said to you, things were mounting on my side.

Quite?---I was talking to Theo either every second week, every week, I can't remember how often, but, during that period it was really stressful and - - -

The most - if you were under financial pressure at this time, the most obvious thing for you to have done would have been to have demanded of Mr Baker that he pay the one and a half million dollars that you claim he owed you?---I wouldn't ring Theo and say or talk like that to him. I did ring him and told him that I've got things going on. I do have Lydia putting people at bay, but, please, can you help me? He - - -

And the furthest that you went, on 4 June 2018, was to make a request for a favour of Mr Baker to advance $20,000; correct?---It's not a favour. I was not just emailing him. We were talking on the phone often and he would say to me - I actually felt sorry for him, because he said the whole mining business is not going the way I planned. The money is not coming in - - -

1. Ms Page's email was sent on 4 June 2018, shortly after the rezoning approval was confirmed in April 2018. On the plaintiffs' case, there was a shortfall of around $837,000 (the sum of $1.5 million minus $662,719, being the total sum already paid by CLAH) at the time the payments allegedly under the Trust Investment Agreement ceased in June 2018. On Ms Page's evidence, she understood that the units had been issued and that the funds would be paid in partial payments over time as required to fund the running expenses of the refurbishment works. Yet Ms Page did nothing more than request Mr Baker "do his best" in circumstances where there was a substantial shortfall on the payments required by CLAH under the alleged Trust Investment Agreement and 58 Harriet Street had not been transferred to Ohmut and Ms Page and her companies were as she described it "drowning in bills piling up".
2. The defendants submit that by failing to demand payment from CLAH once the payments ceased in June 2018, the parties have acted as though the agreement should not be further performed. On the defendants' case, if any alleged Trust Investment Agreement existed, the parties conducted themselves so as to abandon or abrogate the alleged agreement: DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; 138 CLR 423 at 434 (Stephen, Mason and Jacobs JJ); Supetina Pty Ltd v Lombok Pty Ltd (1986) 11 FCR 563 at 571 (Spender J); CGM Investments Pty Ltd v Chelliah [2003] FCA 79; 196 ALR 548 at [17]-[18] (Finkelstein J). As discussed further below, when Parkway One was faced with winding up proceedings and liquidators had been appointed on 30 July 2020, Ms Page and Mr Baker gave versions of the financial arrangements between themselves and the companies under their control without any reference to the alleged Trust Investment Agreement. Indeed, the financial arrangements they described were directly contrary to the contentions that the plaintiffs make in these proceedings. Given the findings that I have reached as to the existence of the alleged Trust Investment Agreement, it is not necessary to address non-performance. My findings are as follows.
3. The plaintiffs bear the onus on this issue. The plaintiffs must establish to the civil standard with requisite certainty the parties to the alleged oral agreement, the terms of the agreement, the consideration and the relevant intention to create legal relations.
4. The plaintiffs do not expressly allege in their pleading that CLAH was a party to the alleged agreement. The plaintiffs do not explain in their evidence or their submissions how it is that CLAH is bound by the alleged agreement between Mr Baker and Ms Page. Mr Baker was not a director of CLAH at the relevant time. Ms Page knew that. Mr Baker was an undischarged bankrupt at the time. Ms Page also knew that. Mr Mitropoulos was the only one of the three CLAH directors at the relevant time that was called to give evidence in this proceeding. The plaintiffs did not cross-examine him on this topic. There are no documents that connect CLAH to the alleged agreement in any way and there is no suggestion by the plaintiffs that the alleged agreement was documented in any way.
5. The terms of the Trust Investment Agreement pleaded by the plaintiffs at PFASOFC, [73] are as follows:

(a) Mr Baker's nominee, CBD Sydney Investments which acts as the trustee of Mr Baker's family trust (the ACJN family trust), would receive interests in the Cooks Hill Property development and the 60 Harriet Street development through the acquisition of:

(i) 50% of the units in the Parkway One Trust; and

(ii) 50% of the units in the Ohmut Trust; and

(b) in exchange, Mr Baker agreed:

(i) to cause 58 Harriet Street to be transferred into the Ohmut Trust after a rezoning of 58 Harriet Street and 60 Harriet Street (the Waratah properties) had been approved; and

(ii) to contribute $2 million in capital for the use of Parkway One and Ohmut, which amount was agreed to represent the difference in value between the Cooks Hill Property and 60 Harriet Street developments, on the one hand, and 58 Harriet Street, on the other.

1. The plaintiffs further allege that Mr Baker and Ms Page agreed that the obligations of Parkway One and Ohmut to repay $500,000 to CLAH under the Ohmut/Parkway Facility would be satisfied by a pro tanto reduction to Mr Baker's obligation to contribute $2 million under the Trust Investment Agreement. Thus, upon the forgiveness of the $500,000 taking effect, the balance owed by CBD Sydney Investments under the alleged Trust Investment Agreement was $1.5 million (PFASOFC, [74]). The plaintiffs do not expressly allege in their pleading that CLAH was a party to this aspect of the alleged agreement. The plaintiffs do not explain in their evidence or their submissions how it is that CLAH is bound by the alleged agreement between Mr Baker and Ms Page to forgive the debt owed under the Ohmut/Parkway Facility nor do the plaintiffs articulate what consideration was given to CLAH in return for CLAH releasing this debt. There are no documents reflecting that the debt has been forgiven or released. Any amendment or variation of the terms of the Ohmut/Parkway Facility are required to be in writing and signed by the parties: cl 39. Any waiver of a right in favour of CLAH under a Transaction Document is also required to be in writing and signed by the parties: cl 40.1. For the avoidance of doubt, no other act, omission or delay by CLAH will constitute a waiver under cl 40.1 of the Ohmut/Parkway Facility. There is no evidence of a written and signed amendment, variation or waiver of the liability to repay the $500,000 debt to CLAH.
2. As I will explain, there are inconsistencies in the evidence given by Mr Page and Ms Page as to the formation of the alleged agreement in terms of the genesis of the agreement, the time when it was made and as to its alleged terms. Ms Page and Mr Page gave their evidence, purportedly based on recollection, some years after the event, unaided by any comprehensive contemporaneous note or record of the agreement which they now allege. The documents on which they rely which are relatively contemporaneous relate to only part of the agreement alleged to have been struck, namely the acquisition by CBD Sydney Investments of 50% of the units in the Parkway One Trust and the Ohmut Trust, and even so, do not reflect the terms which the plaintiffs now contend applied to the acquisition of those units. The inherent unreliability of oral evidence given in such circumstances is stark. The unreliability of the evidence is exacerbated in circumstances where the evidence of Ms Page and Mr Page must be approached with great caution given the adverse credit findings I have made in relation to each of them.
3. To Ms Page's and Mr Page's knowledge, Mr Baker was not a director of CLAH at the time the alleged Trust Investment Agreement was made. In relation to the other commercial arrangements, she and her companies entered into with CLAH, Ms Page gave evidence that she understood Mr Baker had to formally document the arrangements in order to, as she described it, get things past CLAH's board. Mr Page's evidence here was to similar effect. Yet, for the alleged Trust Investment Agreement, neither Ms Page or Mr Page suggest that the terms of the Trust Investment Agreement (as alleged in PFASOFC [73] extracted above) were documented or recorded in any way. That the agreement was not documented is striking when the effect of the agreement, according to the plaintiffs, was that Mr Baker would cause CLAH to forgive a substantial loan and cause Waratah One, a subsidiary of CLAH, to transfer a substantial real property, in both instances without CLAH or Waratah One receiving any consideration.
4. The plaintiffs' contention is that the effect of the alleged Trust Investment Agreement was that Mr Baker would cause Waratah One, CLAH's wholly owned subsidiary, to transfer 58 Harriet Street (with an estimated value of around $2 million) to Ohmut and cause CLAH to forgive the advance of $500,000 made under the Ohmut/Parkway Facility in return for a substantial benefit being conferred on CBD Sydney Investments as the trustee of Mr Baker's family trust. There is no suggestion by the plaintiffs that any consideration was to be received by either CLAH or Waratah One.
5. Mr Baker was not a director of either CLAH, Waratah One or CBD Sydney Investments at the time he is alleged to have contractually bound himself in this way. Indeed, as an undischarged bankrupt, he was precluded from being a director at the relevant time. He was not in a position to exercise legitimate control over either CLAH or Waratah One at the time he allegedly undertook obligations to cause each of them to do give up substantial property rights. That is a matter of which Mr Page and Ms Page would have been well aware given the extent of both their personal and commercial relationships with Mr Baker and Mr Page's own experience as a bankrupt. The inherent improbability of Ms Page agreeing to immediately transfer half of the interests in the two unit trusts to Mr Baker's family trust in circumstances where it was far from clear that Mr Baker had the means available to him to fulfil his part of the bargain is another factor that speaks against the likelihood that an agreement was reached in the terms alleged by the plaintiffs. The conflict between Mr Baker's personal interests and those of CLAH is immediately apparent and would have been at the time to Ms Page and Mr Page. It is telling that in those circumstances, the plaintiffs do not suggest that the alleged Trust Investment Agreement was relevantly sanctioned or approved by CLAH's directors.
6. The alleged terms of the Trust Investment Agreement are further lacking in certainty as to how and when performance was to occur by either party. It is unclear whether the promise to issue trust units to CBD Sydney Investments was alleged to be in exchange for Mr Baker's promise to cause CLAH to forgive the debt and to cause Waratah One to transfer 58 Harriet Street to the Ohmut Trust such that Ms Page and Mr Baker were required to perform their respective obligations independently of each other's performance with the remedy for non‑performance being to take action for breach. Alternatively, whether the alleged terms were that the alleged obligations were mutually dependent with the obligation to issue the trust units being contingent on Mr Baker first performing his obligations in relation to the property transfer and the $2 million contribution before the units were required to be issued. The plaintiffs' submissions proceed on the basis that the first of the two alternatives is what was agreed. However, the plaintiffs' evidence, which I address below, does not establish to the requisite level of satisfaction what were the precise terms of the alleged agreement such that it would be enforceable. The evidence that the plaintiffs rely on as evidence of the performance of the alleged agreement similarly does not resolve this ambiguity as to the terms of the alleged agreement.
7. Against that overview of the difficulties which arise on the plaintiffs' pleaded case in relation to the Trust Investment Agreement in the form that it is alleged to have been made, I now turn to the evidence led on this issue. I will address the evidence given by each of Ms Page, Mr Page and Mr Baker in order. The plaintiffs based their closing submissions principally on Ms Page's evidence which they submit is broadly supported by Mr Page's evidence.
8. The plaintiffs contend that around the end of November or very early December 2016, Ms Page, Mr Page, and Mr Baker had a meeting at the Talulah Café in Newcastle. The plaintiffs allege that immediately prior to this meeting, Ms Page and Mr Page had shown Mr Baker the refurbishment works that had been undertaken at 60 Harriet Street and then at the Cooks Hill Property and that Mr Baker expressed his admiration for the improvements. On Ms Page's evidence, Mr Baker's visit was not pre-organised and was by chance when he happened to be at 58 Harriet Street and she and Mr Page were at 60 Harriet Street. She says that Mr Baker "might have even asked me what I was getting per month" and that she said around $20,000 in rental income per month but with "a view to get more." Following the impromptu inspection of the two properties, Ms Page gave the following account of what transpired at the Talulah Café:

Anyway, so we decided to go and get a coffee up the road, just a two minute drive at the Talulah Café. And we were sitting down, and we were just talking about Newcastle in general. We were talking about the growth, how it has changed.

Who was present at the Talulah Cafe?---That's just me, Lemuel and Theo having a cup of coffee. And we discussed, you know, how Newcastle had changed recently, the growth potential still there. And Theo mentioned, "Look, you've done a lot of work over at Waratah, and I can see what you're doing at Parkway. I've got the corner block. I think we should do something together. Commercial deal, maybe." And I said, "Okay. That sounds pretty interesting." Anyway, he asked me why don't I get some numbers together and shoot them across. Like rental income for Harriet Street.

Sorry. He asked you - - -?---If I could put some numbers together for him so he could have a review. So he wanted me to do - if I could shoot over to him some rental statements, rental income statements for Waratah, rental income statements for Parkway, what my monthly expenses were. And he said, "If you can get them over to me, I will have a look at them and I will get back to you. Maybe we can do something." So I reckon that took me a couple of days, maybe a week.

1. The plaintiffs tendered two emails from Ms Page to Mr Baker each dated 4 December 2016 relating to the expenses and rental income for Ohmut and Parkway One respectively. These emails are described in the body of the email as including "attachments" which are described to include rental income reports and expenses reports. The attachments are not in evidence. Ms Page says that these were sent to Mr Baker following his request made in their discussion at the Talulah Café. Another possibility is that Ms Page has crafted her account of the alleged inspection of the two properties and the meeting at the Talulah Café by reference to the two emails dated 4 December 2016 so that it appears to be supported by these emails. In his evidence, Mr Baker acknowledged receiving the documents which he described as a "P&L". He denied that the documents were supplied in connection with the discussion about the alleged commercial deal that, on the plaintiffs' case, became the Trust Investment Agreement. He said that the documents were provided by Ms Page in support of alleged oral drawdown requests made under the Ohmut/Parkway Facility.
2. Ms Page says that about a week after she sent these emails, she received a phone call from Mr Baker who happened to be in the office with Mr Page "just discussing some stuff, business affairs". She says that the following conversation then occurred:

I got the emails from you. I'm pretty impressed with the numbers that you've sent through.

And he said to me that he would like to come in with $2 million as a buy-in for 50 per cent share in 82 Parkway Avenue and 60 Harriet Street.

I've said:

1. At that point, Ms Page's account was interrupted when she was asked to identify the letter advising of the rezoning approval of the 58 and 60 Harriet Street properties, which she did. She then continued:

Come back to the conversation that you were having with Theo Baker?---Yes. Sure. So - - -

This is in December 2016; is that right?---Yes. So it would have been about a week after I sent the - the numbers through. So he's in the office there with Lemuel and they were discussing whatever they're discussing and he said:

Look, I've been looking at the emails you sent through. I like what I see. We're doing the - we're doing the joint application to the Newcastle City Council for the rezoning from low to medium density.

I've got the corner block. Why don't I put in $2 million as a buy-in for 50 per cent share in Parkway in Ohmut and when we get the rezoning application approved, then we start the rezoning works. We can do - I can transfer over the 58 Harriet Street over to the [Ohmut Trust].

That sounds pretty good, Theo. That would be great.

Okay. Well, why don't we get Christmas out the way and we will pick it up in the new year.

Okay. That sounds all right but, yes, I'm eager to go ahead with that. Let's talk about it.

1. Ms Page was asked questions about how the figure of $2 million was struck. She gave vague evidence but which I understood to be to the effect that she thought the combined value of 60 Harriet Street and the Cooks Hill Property was about double the value of 58 Harriet Street and that by contributing 58 Harriet Street and paying $2 million, Mr Baker was effectively taking a 50% stake. Ms Page does not explain how it was that she thought that Mr Baker was in a position to cause 58 Harriet Street to be contributed to the arrangement as part of his buy in. Waratah One, which was a fully owned subsidiary of CLAH, owned 58 Harriet Street. It was not owned by Mr Baker who, to Ms Page's knowledge, was an undischarged bankrupt at the time. Mr Baker was not a director of CLAH, and Ms Page was aware of that.
2. Ms Page also gave an account of this conversation in which she recounted her expression of her commitment to the proposal a little more equivocally. She said that her conversation with Mr Baker culminated in the following exchange:

Christmas was coming up but we talked about it and I said:

Look, that sounds like something I would be interested in.

Okay. Well, let's get Christmas out the way and we will pick it up in the new year.

1. As I understood Ms Page's evidence, she did not contend that she had reached a concluded agreement with Mr Baker at this point in time. That is consistent with the plaintiffs' pleaded allegation that the Trust Investment Agreement was made in early January 2017.
2. On Ms Page's account, the next significant conversation with Mr Baker occurred about a week after Christmas in January 2017. The conversation is alleged to have occurred by telephone. Again, fortuitously for the plaintiffs, Mr Page is alleged to have been present with Mr Baker when the call to Ms Page was made. Interestingly, Ms Page described the January conversation as when the agreement was "starting to formalise":

So the next, probably, conversation would have been a week or two into January. Maybe a week into January, something like that, and Theo has given me a call and he has said:

Look, we've got Christmas out the way. Why don't we talk about this deal and set it in stone and get it formalised.

And I was quite happy to do this. He mentioned, at that point, when we were going to formalise, with the $2 million buy-in of Parkway and Harriet, he said:

I've already - the $500,000 that I've already advanced to Parkway and Ohmut, why don't we - instead of you worrying about getting the NAB facility and paying that back, why don't we just take the $500 -$500,000 off my buy-in and reduce that from two million to 1.5.

When did he say that to you?---This was in the - in the January conversation and it was starting to formalise.

Was it on the telephone?---Yes.

Yes?---Yes. He rang me from the office. He was with Lemuel.

Right. And what did you say in response to that?---And I said:

Well, that is great because then I don't have to worry about paying the $500,000 back. I think that sounds super.

Okay. Well, then, let's get it formalised and when the rezoning application goes through and that's approved and we're going to start works on that, then we can transfer over the Waratah One into 100 Mile Unit Trust.

That's the 58 Harriet Street?---Sorry. 58 Harriet Street. We can transfer that over into the 100 Mile Unit Trust.

All right. What happened then?---Well, I said, "That is great, and I'm happy to do that." And he said with the - with the buy in, he said, "You've got the refurb works going on." He said, "I've got a lot going on at the moment with [Yipeeo], with the mining business." He said, "Are you happy if - as you're doing the renovation work, say - as the renovation works require it, are you happy for me to tip in what you need to keep all that going?" And I said, "Well I don't want to stop it, obviously. But if I can keep that going and actually ramp it up, that would be super." So I agreed to that agreement. And he said okay. Well then - I said, "Okay. Well, I will - I will contact Foate at Catalyst and ask him to contact you, and we can start organising the paperwork for it."

Who was going to contact Foate?---I was going to contact Foate.

Okay. What paperwork were you discussing? Do you know? Was there any - - -?---To formalise the agreement - - -

I see?--- - - - for the transfer of the units.

And was there any documentation created to formalise the agreement?---Yes, there was, because Theo wanted CBD Sydney Investments as his entity buying in for the 50 per cent units in Parkway One Proprietary Limited and 50 per cent of the units in Ohmut Proprietary Limited. And I said that's fine. So, yes, Foate was organising the paperwork with Theo for the formalisation of the deal. Like I said, that was just after Christmas. It was probably one week after Christmas. Something like that.

1. On Ms Page's account, she says that she accepted what was proposed by Mr Baker. Her description of what Mr Baker proposed is somewhat ambiguous, especially in terms of how the agreement was to be performed relative to the timing of the rezoning approval (if obtained) and the commencement of works thereafter. It is not clear what, if any, obligations were to be performed by each of the parties to the alleged agreement in the period during which the rezoning application was pending and before works started.
2. Mr Baker, on Ms Page's account, expressly said that in relation to the transfer of 58 Harriet Street to the Ohmut Trust, the transfer was not to be made until rezoning approval had been obtained. On the plaintiffs' case, the transfer of 58 Harriet Street was a material part of the consideration in return for which CBD Sydney Investments was to receive 50% of the units in each of the Parkway One Trust and the Ohmut Trust. Exhibit 1 is an email sent on 23 January 2017 by Ms Page to Mr Foate and Mr Page (but not Mr Baker) which is consistent with the transfer of 58 Harriet Street being made after rezoning approval was obtained and works commenced thereafter. I will return to Exhibit 1 below.
3. The conversation that Ms Page alleges occurred between her and Mr Baker, conveniently as it happened in Mr Page's presence, is silent as to the timing of the forgiveness of the $500,000 (which was, at the relevant time, past due) and whether accrued interest was also forgiven. Critically, there is ambiguity as to whether the alleged forgiveness was contingent on rezoning approval and if so, how so in terms of the treatment of accrued and accruing interest. Exhibit 1 is similarly completely silent on the alleged forgiveness of the debt owing under the Ohmut/Parkway Facility. Neither Ms Page's account of her conversation with Mr Baker or her email that is Exhibit 1 provide a basis from which to ascertain with sufficient certainty what was agreed and at what point in time the obligations were required to be performed such that the parties to the alleged agreement could enforce it should the need arise.
4. For example, in relation to the debt forgiveness, was it simply that the due date for payment was postponed pending whether the rezoning was approved, and if so, was it agreed that interest would be suspended during this period or continue to accrue but ultimately be forgiven if the rezoning was achieved? Alternatively, was Mr Baker to cause CLAH to forgive the $500,000 loan immediately but if so, what was to happen should the rezoning not be approved and the obligation to transfer 58 Harriet Street to the Ohmut Trust not be triggered? Would CBD Sydney Investments obtain the windfall of the promised 50% unitholding in each of the trusts without transferring 58 Harriet Street or would the unitholding be reduced to reflect that the obligation to transfer 58 Harriet Street had not been triggered?
5. Similarly, in relation to the payments that the plaintiffs characterise as Trust Investment Payments under the Trust Investment Agreement which started to be made from 13 January 2017, what did the parties agree would happen in respect of these payments which were made in advance of the rezoning being approved, if the rezoning was not approved and 58 Harriet Street was not transferred to the Ohmut Trust? Was it contemplated that the Trust Investment Payments made by CLAH would be repayable on demand or would the Trust Investment Payments be applied as consideration for the acquisition of the units in the two trusts. Relatedly, if it is accepted that on the plaintiffs' version the Trust Investment Payments were to be made by irregular instalments, when was the obligation to issue the relevant units triggered - was it immediate upon the agreement being reached or only after the final instalment was paid? What did the parties agree in relation to the Trust Investment Payments if the rezoning was not approved? If the payments were repayable on demand, then these payments would be subject to the all monies securities granted by Parkway One and Ohmut given that these payments made by CLAH were made to Ohmut and/or Parkway One, both of whom were Transaction Parties who had provided Collateral Security and so were captured by the definition of Secured Moneys.
6. The latter part of Ms Page's evidence extracted above makes plain that she understood that the only documentation which was to be created to "formalise the agreement" was in respect of Mr Baker's entity, CBD Sydney Investments, "buying in" for 50% of the two trusts. But it is not clear whether the formal documents in relation to the unit holding in the trusts were to be readied but not entered on the respective trust registers pending approval of the rezoning or whether the relevant units were to be issued to CBD Sydney Investments immediately upon the agreement being reached (that is, in advance of Mr Baker performing his part of the bargain, in whole or in part).
7. Ms Page said that the agreement was to be formalised, but her first answer was confined to formalising the arrangement in relation to the transfer of units, a matter about which she says that she was going to contact Mr Foate. When she is asked again about whether there was any documentation created to formalise the agreement, she says yes there was and that was because Mr Baker wanted to use CBD Sydney Investments "as his entity" buying in. She says that Mr Foate was organising the paperwork with Mr Baker "for the formalisation of the deal".
8. Exhibit 1 is a reasonably contemporaneous document regarding the Trust Investment Agreement on which the plaintiffs rely. This is the email sent by Ms Page to Mr Foate and Mr Page (but not Mr Baker) on 23 January 2017 that I have referred to above. It is not a document between the alleged contracting parties. Ms Page writes as follows (as written):

Hi Anthony & Lemuel,

As discused, VG documents confirming the land valuation for 82 Parkway Ave as agreed with Theo's $2m buy in for P/W AY ONE P/L and OHMUT P/L for 50% units from both trusts to CBD Sydney Investments P/L then for Theo transfer 58 Harriet Street to ONEHUNDRED MILE UNIT TRUST when joint re-zoning application is approved & works to commence.

Best Fiona

1. By this email, Ms Page forwarded an email from Valuation Services, Property NSW, Department of Finance, Services & Innovation, attaching a land value search for the Cooks Hill Property which valued the freehold value of the land excluding any structural improvements as being $1,460,000 as at 1 July 2015.
2. This email supports Ms Page's account of the conversation she says she had with Mr Baker in part - there is no reference to forgiveness of the CLAH debt forming part of the $2 million consideration and there is no reference to payment by ad hoc instalment upon demand. The email is consistent with Ms Page's assertion that she agreed with Mr Baker that he would use CBD Sydney Investments to "buy-in" for $2 million and in return receive 50% of the units in both trusts and would then transfer 58 Harriet Street to the Ohmut Trust when "the joint rezoning application is approved & works to commence". Having regard to the observations I have made about Ms Page's credit, it is possible that Ms Page's oral evidence has been shaped by this email with the oral evidence including elaborations for which there is no support in this document.
3. This email does not however shed light on whether the trust units were to be issued immediately or whether the documents were to be drawn up but not entered on the respective trust registers pending rezoning approval.
4. On Ms Page's evidence, this email was sent after she says she agreed to the buy-in being reduced to $1.5 million on the basis that CLAH forgave the $500,000 that had been advanced on the Ohmut/Parkway Facility but no mention is made of that aspect of the alleged agreement.
5. Exhibit 1 is a document that while reasonably contemporaneous is not a communication between the parties to the alleged agreement. I do not attach much weight to Exhibit 1 as establishing that objectively an enforceable agreement had been reached between Ms Page and Mr Baker in the terms alleged by the plaintiffs. There is no suggestion that this email was ever provided to Mr Baker or to CLAH or CBD Sydney Investments. After addressing Mr Page's evidence and Mr Baker's evidence, I will address below what Mr Foate did in response to Ms Page's email.
6. The plaintiffs also led evidence from Mr Page about the formation of the alleged oral Trust Investment Agreement. Mr Page's evidence departed significantly from Ms Page's evidence notwithstanding that Ms Page maintained that Mr Page was present for each of the conversations that preceded the making of the agreement and during the critical phone call on which the plaintiffs rely as constituting the agreement. Mr Page's evidence was that he was meeting Mr Baker about four times a week and speaking to him two to three times a day. Mr Page says he had a conversation with Mr Baker at a meeting in November 2016 in Martin Place at which they discussed business pertaining to Yipeeo and Moto Prestige. At this meeting, Mr Page says the following exchange occurred:

At the time, I told him that Fiona had had valuations - NAB had done valuations for Parkway and also for Ohmut and that, early in the new year, there would be facilities in place on both properties. There was two $500,000 facilities put in place in the '17 year: 500,000 for Ohmut and 500,000 for Parkway. I said that, "Fiona will be able to pay you out," and then NAB were, "NAB knew that you had helped get rid of the Elefteria issue and the Pitsis issue and NAB were wanting to make sure that Fiona had everything resolved so it moved forward."

What did Theo say?---Theo said to me, "Lemuel, I would prefer, if we could, look at coming in as a partner with Fiona in Ohmut and Parkway. The value, once the rezoning is done, is that I can use the FSR or we can use the FSR" - - -

What's FSR?---Floor space ratio - "from the units I've got on the corner and we can do a much larger development on the rest of 60 Harriet Street." I said, "Well, I agree," and it benefits everybody by doing it that way, because as it progresses for master plan, we can have the whole site developed and his site was at, sort of maximum development at the moment, so you couldn't use the FSR on his site to go up because the value of the property was already at its maximum. It was a small site, so it was easier to move it down to the bigger site. I said, "I will speak to Fiona, but, you know, you should be talking to her as well, because it works for everybody." He then said to me, "I've been thinking about the numbers. I'm happy to forego the 500,000 - forgive that - and Fiona not" - - -

What 500,000?---The 500,000 that was Pitsis. So he said, "I will forgive the $500,000 debt. Fiona can just use the money that she's got coming in from NAB for refurbs of Parkway and continue doing other work on Ohmut. I will put in $1.5 million into the Ohmut and Parkway properties and buy - or buy in with Fiona and when the rezoning is done or when we're moving forward with everything, Fiona will also get 50 per cent of 58 Harriet Street." We then continued talking about, as time went on, that - at this meeting, that we had already done an initial master plan for it. We could put on about 160 one-bedroom units. Now, they were four storey and we could strata them off, so that meant that at a later date, we discussed - well, Theo and I discussed that once that development was complete, he could keep his half as him and Fiona could keep her parts as her and it didn't have to be the - the one group at that point of the future.

1. Mr Page said that later that same day he had a discussion with Ms Page as follows:

What did you say to her?---I said to Fiona, "Look, I - Theo has suggested that he comes in partnership with you on Waratah and Parkway. He's talking about half a million dollar - the half a million dollar forgiveness, so don't pay that back from the NAB facility that's getting put into place. $1.5 million buy in both Ohmut and Parkway and he will put in 58 Harriet Street into - with 60 Harriet Street and you will have 50 per cent of that."

What did Fiona say in response?---Fiona said, "Sounds great. It's an awesome opportunity for all of us, and it makes sense to amalgamate those two sites together, because that's where the true value is."

All right. And what did you do after that?---I said to her, "Look, you should talk to Theo and have a proper discussion. I will speak to Theo and have him organise to come up to Newcastle and you - the three of us can sit down and have a talk about it."

Did that meeting happen?---The meeting happens.

When?---The meeting happens at - in December of 2016 - - -

Where?--- - - - at Tallulah Café in Newcastle.

Who was present at that meeting?---Fiona, Theo and myself.

1. The differences in the account about the genesis of the alleged agreement given by Mr Page to that given by Ms Page are immediately apparent. According to Mr Page, the meeting at the Talulah Café was pre-arranged for the purpose of discussing the deal that allegedly became the Trust Investment Agreement. Mr Page's account of the conversation between Mr Baker and Ms Page at the café is as follows:

What did Theo say?---Theo said, "Fiona, I'm really interested in buying into those properties. I would like to see, just for my side, what the financials are on those properties." Fiona said, "That's fine. I will supply you a quarter's worth of financials for both properties so you can see what the rental returns and expenses are." Theo said to her, "Forgive the 500,000. Keep - keep the money that NAB is putting in place and use that for the - the properties. I will tip in one and a half million as my buy-in, and I will also give you half of 58 Harriet Street."

1. Mr Page said that it was at another meeting that Mr Page said that he would not pay the $1.5 million in one lump sum. His evidence was that at a meeting on a "later date" in December 2016 that Mr Baker said to Ms Page:

"Look, are you happy, Fiona, if I make payments for the renovation works as you need the funds?" And Fiona told him, and I said, "I - I don't see an issue with that. I know you're" - - -

Now, when - - -?--- - - - "doing your house."

1. Mr Page then said the meeting was on the phone and that he was present in Mr Baker's office and Mr Baker (conveniently) had the phone on speaker. He elaborated on what Ms Page said as follows:

Fiona said, "I'm happy for the payments to be made. I will send you on a weekly basis what I need paid and you just make the payments and we will just keep going along like that until you're in a position to - your house is finished and you can make larger payments when we're starting to do the full development."

1. Mr Page gave evidence that Mr Baker confirmed that he wanted to move forward with the arrangement after Christmas and that Ms Page spoke to Mr Foate from Catalyst Legal to do the documentation. The plaintiffs rely on the instructions carried out by Mr Foate as part of the alleged steps to implement the Trust Investment Agreement.
2. Mr Page says he was again present when Ms Page instructed Mr Foate:

What did she instruct him to - well, did you hear her instruct him? Were you present when she instructed him?---Fiona - I was at one of the - she - she spoke to Foate and told Foate that Theo wanted to buy 50 per cent of Parkway and Ohmut.

Now, was this in a meeting or on the phone?---On the phone.

All right. And you were present, were you?---Yes. At the place at Cardiff.

All right. And what happened after that conversation?---Foate - well, she told Foate to deal directly with Theo to - to do the documentation.

I see. And what documentation are you talking about?---Theo and Foate - and I was cut into the email trails - organised - firstly, they talked about - they talked about Theo's company, CBD Sydney Investments, getting 50 per cent of the units. But then Theo said - or Theo and Anthony - okay. It was Theo and myself and Anthony met in Newcastle to have the discussion about what would be the best way for Theo to buy into Parkway and Ohmut. So, at that meeting, Theo said, "How can we do this the most cost effective way to be able to minimise the stamp duty that would be paid?" Anthony said to Theo, "If we issue new units, we will be able to potentially get around paying - you having to pay the stamp duty on land rich assets." Theo said that that's what his preference would be. Anthony said that, if the OSR investigated it, Theo may have to pay the duty, but that would be up to Theo to have to do that.

Who was present at this discussion?---Anthony, myself and Theo.

All right?---Theo also spoke to Geoffrey McDonald.

1. Another reference to Mr McDonald, who as I have said acted as a legal adviser at various times to Ms Page and Mr Baker and was Mr Page's trustee in bankruptcy in the period between 20 July 2015 and 8 or 12 December 2016.
2. Mr Baker denied saying that in return for an interest in Ohmut and Parkway One he would be willing to forgive the $500,000 advanced under the Ohmut/Parkway Facility. Mr Baker denied meeting with Mr Page and Ms Page at the Talulah Café in December 2016. He denied each of the central propositions that Mr Page and Ms Page assert he made at that meeting. He says he did not say he wanted to buy in to the properties owned by the Ohmut and Parkway One Trusts. He denied offering to waive repayment of the $500,000 under the Ohmut/Parkway Facility in return for such an interest. He denied offering an additional amount of $1.5 million to make a "total buy-in of $2 million". He denied offering up 58 Harriet Street as part of the deal so that it could be developed together with 60 Harriet Street. He said to suggest that was the case was not true and was "commercially ridiculous".
3. Mr Baker denied having a subsequent telephone conversation in which he told Ms Page and Mr Page that he needed funds to complete the works on his residential home in Clovelly and that he wished to pay the cash component of $1.5 million for the trust units over a period of time and that he would pay Ms Page on a weekly basis as requested by her to meet the cost of refurbishments of the two properties as they arose. Mr Baker asserted that the funds paid by CLAH to meet the refurbishment costs were paid pursuant to the Ohmut/Parkway Facility, but accepted that there were no drawdown notices for these advances.
4. The plaintiffs rely on steps that they say were taken pursuant to the Trust Investment Agreement in order to prove that the contract was formed. Post-contractual conduct is admissible to show whether a contract was formed: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; 53 NSWLR 153 at [25] (Heydon JA). Post-contractual conduct can be used to determine what the terms of the contract were, especially in the case of an oral contract: see Franklins Pty Ltd v Metcash Trading at [325] (Campbell JA) and the cases there cited; Lym International Pty Ltd v Marcolongo [2011] NSWCA 303 at [136]- [149] (Campbell JA, with Basten JA and Sackar J agreeing); Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 547-548 (Gleeson CJ, with Hope and Mahoney JJA agreeing); and generally, Herzfeld P and Prince T, Interpretation (2nd ed, Thomson Reuters, 2020) at [29.160].
5. The plaintiffs allege that the following steps were taken pursuant to the Trust Investment Agreement and are evidence which establishes that the Trust Investment Agreement was made in early January 2017 as the plaintiffs allege and on the terms the plaintiffs have pleaded. The defendants counter by submitting that none of the documents relied on by the plaintiffs refer to the alleged Trust Investment Agreement to which CLAH is alleged to be a party. Similarly, there is no reference to any agreement whereby CLAH would forgive its loan under the Ohmut/Parkway Facility. The defendants submit that the alleged post contractual conduct relied on by the plaintiffs lacks the precision, level of detail and certainty that would be required to demonstrate that the alleged Trust Investment Agreement in fact existed: see Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd [2006] VSC 42 at [191] (Dodds-Streeton J); Franklins Pty Ltd v Metcash Trading at [13] (Allsop P, as his Honour then was), [325] and [326] (Campbell JA); Australian Broadcasting Corporation v XIVth Commonwealth Games (Gleeson CJ, with whom Hope and Mahoney JJA agreed). Accordingly, the defendants submit that the documents relied on by the plaintiffs cast no real light on what, if anything, was agreed in early 2017.
6. The first step relied on by the plaintiffs is the preparation of documents in relation to the transfer of 50% of the units in each of the Parkway One Trust and the Ohmut Trust to CBD Sydney Investments.
7. In response to this email and his subsequent correspondence with Mr Baker, Mr Foate drew up the formal documents that would facilitate the issue of units to CBD Sydney Investments but that were not sufficient of themselves to result in the relevant units being issued. In order for units to be issued in the trusts it was necessary under the terms of both trust deeds for the units to be registered in the respective unit register for each trust. The terms of the relevant trust deeds are addressed below. The documents prepared by Mr Foate which were executed and delivered to Mr Baker were sufficient to arm Mr Baker with the ability to cause the units to be issued to CBD Sydney Investments by requiring the unit register to be updated for each trust, but did not themselves result in the issue of the said units. The only version of a unit register that is in evidence is that which records the original unit holders and forms part of the trust deed.
8. Further, the arrangement for the issue of the units that is recorded in the documents prepared by Mr Foate does not reflect the terms of the alleged Trust Investment Agreement. The documents prepared by Mr Foate do not include any reference to any consideration on the part of CBD Sydney Investments for the issue of the said units other than the sum of $1.00 which is said to the be "full payment of subscription moneys" for the units. Mr Foate did not document the terms of the Trust Investment Agreement as alleged by the plaintiffs which stipulated that the consideration for the issue of the trust units was three-fold: first, the alleged forgiveness of the $500,000 debt by CLAH; second, the balance of the consideration of $1.5 million to be paid by CBD Sydney Investments; and third, the transfer of 58 Harriet Street to the Ohmut Trust upon zoning approval being granted.
9. Ms Page was cross-examined on the application for units in the Parkway One Trust made by CBD Sydney Investments. She said that the document was prepared by Mr Foate on her instructions. When confronted with the reference to consideration of $1.00, Ms Page equivocated. When the cross‑examiner pushed further, Ms Page retreated a little but ultimately accepted that the "paperwork" that she was shown in cross-examination was the whole of the documentation that she signed at Catalyst Legal "to do with" the alleged Trust Investment Agreement. There is no suggestion in the evidence that anyone other than Mr Foate was instructed to prepare the documentation in connection with the alleged Trust Investment Agreement:

Now, that was a document prepared by Mr Foate, correct?---It looks familiar, so yes.

On your instructions, correct?---Yes.

And the full payment that was required in that document was a payment of $1, correct?---Yes.

Right. And that reflected your instructions to Mr Foate, correct?---Well, Theo and Anthony were preparing the documents for the agreement.

Yes, but Mr Foate was your solicitor, correct?---Yes, that's correct.

Right. And you were giving Mr Foate instructions - - -?---Yes.

- - - to formalise this transaction, correct?---Yes, that's correct. He dealt - - -

And you instructed him that the consideration for the subscription moneys for those units was $1, correct?---I'm not sure how it's all written and the correct, you know, "We enclose cheque for $1." I don't understand all that terminology. I just know that I gave permission for Anthony Foate to deal with Theo Baker to organise our agreement paperwork.

Right. And that paperwork didn't require the payment of any more than $1 for the units in Parkway One Unit Trust, correct?---No, that's not correct.

But there's no document that you know of that refers to any consideration in an amount other than $1 for the issue of those units, is there?---I just know I've signed documents. The documents were there. I've signed them. They were co-signed by Mary. And Theo has taken the documents.

Right. And you signed a document at page 113, being a minute of - minutes of a meeting of the director of Parkway One Unit Trust, correct?---Yes.

And that refers to a request for the issue of units in that trust from CBD Sydney, correct?---Yes.

That's the document at page 112, correct?---Yes, I would say it relates, yes.

And you resolved to offer the issue of units on those terms, correct?---I'm signing the paperwork for the agreement, yes. Yes.

And you satisfied yourself in making that resolution that the resolution corresponded to your true intention, correct?---I was signing paperwork for an agreement.

You satisfied yourself that the resolution corresponded to your true intention, correct?---I've signed the paperwork. I was happy to sign the paperwork.

Thank you. And you read the paperwork carefully before you signed that minute of meeting, correct?---Yes, I was there. I - I - I read it; I signed it and I'm happy to say yes, I did. I - I recognise the documents. I've signed - - -

Thank you?--- - - - the documents and yes, I'm happy with them.

And at 114 - - -?---Fine.

- - - you see a unit certificate. You see that?---Yes.

For CBD Sydney Investments as the holder of 20,240 units?---Yes.

See that?---Yes.

Thank you. And that unit certificate reflected the terms that one sees back at page 112 and the resolution that you yourself made at 113; correct?---Yes. All these documents go together. I've signed them, and I'm happy with them. Yes.

Thank you. And at 115 you will see another application for units, this time for the [Ohmut] Trust?---Yes.

And 540 units were applied for for the sum of $1 representing full payment of subscription moneys. Do you see that?---Yes, I see it.

And that reflected your instructions to Mr Foate; correct?---All these papers go together. They're all part of the paperwork that I signed at Foate. I'm happy to say that, and - and I recognise them. Yes. Yes.

And they correspond to - that page 115 corresponds to the instructions you gave Mr Foate as to the terms of the issue of those units in the [Ohmut] Trust; correct?---I gave instructions to Anthony to deal with Theo to prepare the paperwork for the agreement. I've gone there. I've signed them. I recognise these documents. I don't know what more you would want me to say.

And on page 116, you made a resolution as the sole director of [Ohmut] to offer the issue of units, and that - and when you go back to the start of those minutes, you will see the tabling of a request for the issue of units from CBD Sydney. That's the request at page 115, isn't it?---Yes.

Thank you. And then page 117 you've also signed; correct?---Yes. I can see. Yes. Yes.

Thank you. And you satisfied yourself when you signed all of those documents from pages 112 to 117 that they corresponded to your true intention in conducting a transaction whereby CBD Sydney Investments would become a unit holder in those two trusts; correct?---Well, this is the paperwork I signed at Catalyst for the agreement. Correct.

1. Ms Page ultimately agreed that the documents to which she was taken in cross-examination set out the full terms of the agreement that she made for CBD Sydney Investments to become a unit holder in each of the two trusts:

Now, can I ask you, please, to - and, having looked at those documents from 112 to 117 together with the email that I took you to at page I think it was 64, you will agree, won't you, that those documents set out the full terms of the agreement that you made for CBD Sydney Investments to become a unit holder in those two trusts?---I agree that all this paperwork we just looked at is what I signed at Catalyst Legal to do with our agreement. Yes.

1. Mr Baker was cross-examined on the acquisition by CBD Sydney Investments of 50% of each of the Ohmut Trust and the Parkway One Trust. He denied that he instructed Mr Foate. He said Mr Foate was not his solicitor. Mr Baker accepted that he emailed Mr Foate after he met with Mr Foate and Mr Page. He said he did not recall the meeting but did not deny it occurred. He agreed that his email of 18 January 2017 to Mr Foate accurately set out the objective in relation to the acquisition of the trust units. The relevant part of his email states:

As discussed, the objective is for an entity related to me (CBD Sydney Investments Pty Ltd ATF AJCN Family Trust) to have joint ownership in the [Ohmut] Trust and the [Parkway One] Trust. I understand from our conversation that this can be achieved by the issue of new units, equal to the number of existing units, in each of the aforementioned trusts.

Would you kindly prepare the necessary documentation to effect the desired outcome including any minutes that may be required in order for each of the trustee companies ([Ohmut] and [Parkway One]) to resolve for the appointment of an additional director to each of the trustee companies and the issue of additional shares in the trustee companies m the same amount that are currently on issue.

1. Neither Ms Page or Mr Page referred in their recount of the conversation in which they say the Trust Investment Agreement was made to the allegation that Mr Baker was to nominate an additional director to be appointed to each of Ohmut and Parkway One. Mr Baker refers to the appointment of an additional director in his email of 18 January 2017. In an email sent to Mr Foate copied to Mr Page on 19 January 2017, Mr Baker confirmed that Ms Comino was to be the additional director appointed to both trustee companies and supplied her relevant details to Mr Foate. He said that he could arrange to submit the relevant form to ASIC "after the units are issued should this be more expeditious". Mr Foate agreed that it would be "much easier" for the holder of the corporate key for the companies to submit the form online and that they could prepare the form online. The documents prepared by Mr Foate included documents in relation to the appointment of Ms Comino as a director to each of Ohmut and Parkway One.
2. Mr Baker said he sent this email at Mr Page's request to set out what Mr Baker required so that Mr Foate could draw up the necessary documents. Mr Baker accepted that the proposal was for Ms Comino to become a director and shareholder of both Ohmut and Parkway One "if it was going to be put into effect". Mr Baker agreed that he had told Mr Foate that he could arrange for an accountant or agent to submit the "ASIC form" after the units were issued.
3. Mr Baker said he was "keen to get the documentation in place". He agreed that Ms Comino signed the documents on 27 January 2017 and that Ms Page signed the documents subsequently but could not remember the date of the meeting. He did not remember taking away the original documents at the end of the meeting. He said he may have, he just did not recall.
4. Mr Baker maintained that the documentation that was signed in relation to the issue of units to CBD Sydney Investments was not actioned in the sense of being registered and that the units were never issued. He accepted that unit certificates were prepared and signed and that he received them, but he said that:

[I]s it your position that these unit certificates were provided to you or, rather, to CBD Sydney Investments, for $1 each?---Well, my - my understanding is that these were going to be kept in the top drawer, and I was going to go off and pay the stamp duty when we needed to implement these.

When you needed to implement them?---That's right.

Why would you need to implement them?---In - in the event that there was a challenge with the Parkway and Ohmut loans.

How would this assist if there were a challenge with the Ohmut and Parkway loans?---Well, it would give me some leverage. That's the way I viewed it.

Give you some what?---Leverage.

What do you mean by that?---Exactly that.

You would be able to say, "Well, actually, I own half these properties"?---That's right.

1. In his evidence in chief, Mr Baker said that he had copies of the unit registers and had checked and the units were never issued.
2. On the evidence before me, I find that in mid-January 2017, Mr Foate was engaged to prepare the documentation to effect the allocation of units equal to 50% of the units in each of the Parkway One Trust and the Ohmut Trust to CBD Sydney Investments. Mr Baker and Mr Page communicated with Mr Foate in relation to documenting the issue of the trust units to CBD Sydney Investments for a period in January 2017 which culminated with Mr Foate drawing up unit applications by CBD Sydney Investments for each of the Parkway One Trust and the Ohmut Trust, minutes of meetings of the director of each of the applicants for units and unit certificates for each of the Parkway One Trust and the Ohmut Trust. The documents were submitted in draft to Mr Baker and Mr Page. After being approved, a meeting was arranged on 3 February 2017 for the execution of the documents.
3. On 3 February 2017, Mr Baker and Ms Page met at the offices of Catalyst Legal to sign the documents which had been prepared. Mr Foate and Mr Page also attended that meeting. The documents which were executed all related to CBD Sydney Investments obtaining units in the Parkway One Trust and the Ohmut Trust. Those documents included, for each of the Parkway One Trust and the Ohmut Trust, an Application for Units by CBD Sydney Investments signed by Ms Comino dated 27 January 2017, Minutes of a Meeting of the Director signed by Ms Page on 27 January 2017 and Unit Certificate executed by Ms Page dated 27 January 2017. Notwithstanding that the execution of the relevant documents by Ms Page took place on 3 February 2017, each of these documents was dated 27 January 2017 in handwriting. Ms Page maintains that she, on behalf of Parkway One and Ohmut, executed the legal documents presented to her by Mr Foate at the meeting on 3 February 2017. Ms Page denied that the date of 27 January 2017 on the documents is in her handwriting. I find that the documents which were executed by Ms Page were executed by her on 3 February 2017 and those that were executed by Ms Comino were executed by her on 27 January 2017.
4. Ms Page said that Mr Baker asked if he could take the documents that had been executed away with him and that she did not retain any copies of the documents. She said that Mr Baker asked "Are you okay if I take these documents back, and just any company registers with me and keep it all in one spot" and that she was happy for him to do so. She says that Mr Baker left the meeting with the original copies of the executed documents and she did not take any copies of the documents. Mr Baker accepts he may have done so but denies having a specific recall. He did suggest in his evidence that he had access to a copy of the unit register for the trusts and asserted that no units in CBD Sydney Investments' name were ever registered in the relevant trust registers. I interpolate to note that the unit registers for the trusts are not in evidence. Mr Baker's bare assertion is the only evidence before me as to the content of the relevant trust registers of unitholders as they stood proximate to the time of the hearing. For the reasons I have already given, I do not accept Mr Baker's oral evidence where it is not supported by reliable contemporaneous documents. Ms Page initially gave evidence that Harmat was the sole unit holder of the Parkway One Trust, which is consistent with the Deed Appointing New Trustee of the Parkway One Trust executed by Ms Page and Mr Baker on 11 December 2019 which defines Harmat as the sole Unit Holder and Zapato Pty Ltd as the New Trustee. The deed of appointment is referred to in the letter from Diamond Conway, who were acting for Zapato, to Bridges Lawyers dated 17 December 2019 which confirms that the "deed has been executed by the sole unit holder in the Trust, namely Harmat". Ms Page later gave a different answer in response to being asked about CBD Sydney Investments - Ms Page subsequently said that both Harmat and CBD Sydney Investments were unitholders of the Parkway One Trust as at 11 December 2019 and said that the deed of appointment contains a mistake. Having regard to Ms Page's inconsistent oral evidence and the fact that the relevant unitholder registers are not in evidence other than the schedule of original unitholders at the date of establishment of the Parkway One Trust, I cannot be satisfied that CBD Sydney Investments was ever registered as a unitholder in respect of the Parkway One Trust. If CBD Sydney Investments was not registered as a unitholder in the Parkway One Trust, then it is likely that CBD Sydney Investments was not entered as a unitholder in the Ohmut Trust.
5. The tenor of Mr Baker's evidence is that the documents that had been executed in relation to the issue of units in the two trusts were held by him as leverage in some type of non-arm's‑length escrow and were only to be registered on the respective trust registers and stamped if he needed them. Mr Baker refers to having the documents in the "top drawer" to use as "leverage" in the event that there was a challenge with the "Parkway and Ohmut loans". I take Mr Baker's reference to the "Parkway and Ohmut loans" to be a reference to the serial advance of funds by CLAH for the refurbishment expenses which the parties agree totalled $662,719.
6. Given that the transfer of 58 Harriet Street to the Ohmut Trust was contingent on rezoning approval, it would be odd for CBD Sydney Investments to obtain the benefit of a 50% interest in each of the trusts prior to Ohmut and Parkway One receiving the consideration which underpinned the grant of those interests to CBD Sydney Investments, that is the consideration of $2 million (including $500,000 in forgiveness of the Ohmut/Parkway Facility) and transfer of 58 Harriet Street. It is common ground that the whole of the $2 million "buy-in" was not paid and 58 Harriet Street was not transferred to the Ohmut Trust.
7. From early January 2017, Mr Page was causing CLAH to pay Ms Page's claims for invoices associated with the refurbishments and was in the main documenting these advances in CLAH's internal records as loans to Parkway One or Ohmut without an express reference to the Ohmut/Parkway Facility. These advances were secured by the Ohmut/Parkway Securities, but if there was any doubt about the Ohmut/Parkway Facility or if Mr Baker ceased to have de facto control of CLAH, then Mr Baker had the unit certificates as "leverage" which CBD Sydney Investments could use to its advantage.
8. The defendants seek to rely on an email from Mr Baker on 20 July 2017 as demonstrating that there was no agreement of the type alleged in the Trust Investment Agreement. Shortly after receiving an email from Ms Page on 20 July 2017 requesting a funds transfer from CLAH to Parkway One "to cover cheques for tradespeople", Mr Baker forwarded Ms Page's email to Mr Page and said "Lemuel see below. Can you phone me to discuss. The point has reached where money now needs to come back in." Mr Page replied the following day "Call me when you are up". In any event, on 22 July 2017, Mr Baker directed CLAH to transfer the funds as requested by Ms Page.
9. In this proceeding Mr Baker maintains these advances were drawdowns made under the Ohmut/Parkway Facility. If that was correct, then these "loans" would have been secured by the Ohmut/Parkway Securities and CLAH would have the benefit of that security. I find it more likely that Mr Baker caused funds to be advanced from CLAH in accordance with Ms Page's requests knowing that the advances were not covered by the Ohmut/Parkway Facility. Mr Baker would have known at the time that the available limit under the Ohmut/Parkway Facility was exhausted and the facility had expired well before the first of the advances was made in January 2017. Mr Baker appreciated that CLAH would be protected in any event even if these advances were not made under the Ohmut/Parkway Facility because they were likely covered by the broad definition of Secured Money in Ohmut/Parkway Securities. Certainly, in late 2019, he was aware that the Ohmut/Parkway Securities had continued utility even if the Ohmut/Parkway Facility was repaid in full. He added a sentence to that effect in his contribution to the drafting of correspondence that was being prepared for Ms Page to send to the Parkway One liquidators. It is clear that Mr Baker intended by taking the documents in relation to the trust unit issue to gain leverage for the benefit of CBD Sydney Investments (the trustee of his family trust) and whatever the arrangement was that led to the execution of these documents, it was not an arrangement to which CLAH was a party.
10. Another factor which supports the conclusion that whatever the arrangement was which was agreed between Ms Page and Mr Baker it was either contingent on fulfilment of a future condition or alternatively not performed is the fact that Ms Comino was not made a director of either Parkway One or Ohmut. The exchange of correspondence between Mr Baker and Mr Foate, which was copied to Mr Page, suggests that upon the issue of units in the relevant trusts, Ms Comino would become a director of each trustee company. The company searches which are in evidence before me for each of Ohmut and Parkway One do not record that Ms Comino was a director of either company in the relevant period, or at all. There are two possible explanations for this. The first is that the trust unit documents were kept in reserve and were not implemented by updating the trust registers and accordingly, the ASIC forms by which Ms Comino would have become a director of the two companies were not lodged. The second is that because Mr Baker was the person left in control of the corporate key for each company and with the trust registers, he chose not to take the steps necessary to fully implement the arrangement. Both alternatives are possible. However, the failure of Ms Page and her interests to take any action when on her case, Mr Baker breached the alleged agreement by ceasing to make payments and not transferring 58 Harriet Street, makes it more probable that the arrangement in relation to transfer of the trust units was being held in reserve and was not implemented by registering CBD Sydney Investments as a unitholder in either trust at any time.
11. Mr Baker's evidence about keeping the documents in reserve and only using them if it was necessary to "implement" them makes sense having regard to the terms of the relevant trust deeds.
12. The trust deeds establishing the Parkway One Trust and the Ohmut Trust are in evidence. I will briefly set out the relevant definitions and terms of the trust deeds insofar as they concern the issue, registration and transfer of units in these trusts.
13. The Parkway One Trust deed is dated 29 November 2012 and executed on behalf of Parkway One by Mr Page and Suzanne Darling each an authorised person ostensibly as "Director". The ASIC search for Parkway One confirms that Parkway One was registered as a proprietary company on 29 November 2012 with Mr Page, Ms Darling and Dr Munro as directors.
14. For the Parkway One Trust, "Unit Holder" is defined in cl 1(v) of the trust deed as:

a person for the time being registered in the Register as the holder of a unit, includes, persons jointly so registered and also includes the Foundation Unit Holders and each and any one of them

1. "Register" is defined in cl 1(m) of the trust deed as "the register to be kept pursuant to clause 19 herein". Clause 19 provides for the Register of Unit Holders:

The following provisions shall have effect with regard to the registration of Unit Holders in respect of their interests under the provisions of this Deed :

(a) the Register of the Unit Holders will be kept up to date by the Trustee;

(b) any change of name or address on the part of any Unit Holder shall be notified to the Trustee who shall alter the Register accordingly;

(c) Unit Holders shall be entitled free of charge at any time to inspect the Register;

(d) the Trustee may, but shall not be obliged to, enter on the Register notice of any trust express implied or constructive in respect of any Unit;

(e) the Trustee shall recognise the Unit Holder his executors or administrators as the absolute owner of the Units in respect of which he is registered and all persons may act accordingly and the Trustee shall not save as herein otherwise provided or except as ordered by a Court of competent jurisdiction or as by Statute required be bound to take notice of any trust or equity whether express or implied or constructive affecting the ownership of any Unit or the rights incident thereto and the receipt of such Unit Holder his executors or administrators for any money payable in respect of the units represented by his certificate shall be a good discharge to the Trustee; and

(f) subject to the provisions herein contained, any Unit Holder shall be entitled without fee on surrendering his Certificate to the Trustee to exchange into Certificates of different amounts of Units not exceeding in the aggregate the total number of Units represented by the Certificate surrendered upon making application therefore in such form as the Trustee prescribes.

1. Foundation Unit Holders are defined as Potencia (as trustee for the Potencia Unit Trust), Harmat (as trustee for the Harmat Trust) and DMXS (as trustee for the DMXS Trust). The Schedule to the Parkway One Trust provides that they each hold an equal number of units. Parkway One is defined as Trustee. It is not suggested that CBD Sydney Investments was a Foundation Unit Holder. It is not apparent on the evidence when Potencia and DMXS ceased to be unitholders in the Parkway One Trust. As mentioned, the deed of appointment of a new trustee dated 11 December 2019 was executed by Harmat as the sole unit holder in the Parkway One Trust. The letter from Diamond Conway to the Liquidator of Parkway One dated 17 December 2019 similarly refers to Harmat as the sole unitholder. Dr Munro, as sole director of DMXS, was cross-examined on DMXS's unitholding in Parkway One Trust and could not recall whether DMXS still held any units in Parkway One Trust or if they had been redeemed or sold.
2. Clause 5 provides for the creation of additional units:

The Trustee may at any time determine that additional Units shall be created.

1. Clause 8 provides for the price of new units as follows:

8.1. The Trustee shall not issue new Units at a price per unit other than the issue price provided for in clause 8.2.

8.2. Except where all the Unit Holders agree upon another price, the issue price of a new Unit shall be such amount as is the Current Unit Value, such price to be adjusted to the nearest one cent above the price so calculated.

8.3. Any amount of the issue price not paid at the time of issue of a new Unit is payable upon demand for payment of that amount being made by the Trustee and in the meantime the amount unpaid does not bear interest.

1. Clause 18 of the Parkway One Trust provides the mechanism for the registration of units:
   1. APPLICATION FOR UNITS AND ISSUE OF CERTIFICATES FOR UNITS

18 .1. Applications for units shall be made in writing in such form as the Trustee shall from time to time determine.

18.2. Whenever the Trustee is required pursuant to the provisions of this Deed or otherwise to register a person as a Unit Holder it shall cause such person to be entered on the Register and shall issue a Certificate or Certificates in such form as the Trustee shall determine. Each Certificate shall have a distinctive number and shall specify the number of Units to which the same relates.

1. The defendants submit that CBD Sydney Investments was never registered in the Parkway One Register as the holder of units notwithstanding that a unit certificate was issued. On this basis, the defendants submit that the bargain that forms the basis of the alleged Trust Investment Agreement was never performed. Parkway One did not cause CBD Sydney Investments to be registered as a Unit Holder and conversely notwithstanding that the rezoning approval was granted in April 2018, 58 Harriet Street was never transferred to the Ohmut Trust, and the monetary consideration of $2 million was not fully paid.
2. In the context of the appointment of liquidators to Parkway One, Ms Page initiated two separate applications to remove the Liquidator and to terminate the winding up. In the context of the second application, Ms Page executed the Zapato Appointment Deed appointing a new trustee of the Parkway One Trust dated 11 December 2019 in which Harmat was identified as the sole unit holder of the Parkway One Trust and purported to appoint Zapato as the New Trustee of the Parkway One Trust and to remove Parkway One which it asserted had been reduced to the status of a bare trustee by reason of it being placed in liquidation. Zapato as I have mentioned has two directors, Mr Baker and Dr Lazaris each with a 50% shareholding, but in late December 2019 had only Mr Baker as a director. Mr Baker executed the Zapato Appointment Deed on behalf of Zapato.
3. By the Zapato Appointment Deed, both Ms Page and Mr Baker acknowledged that as at 11 December 2019, the only unit holder of the Parkway One Trust was Harmat. The two other Foundation Unitholders, being Potencia and DMXS, are not mentioned in the deed. The circumstances in which Potencia and DMXS ceased to be unitholders is not explained in the evidence. Indeed, it is not clear if they have in fact ceased to be unitholders: see In the matter of Parkway One Pty Limited (No 2) [2020] NSWSC 191 at [7]- [12] (Rees J). Dr Munro was asked questions about this issue by counsel for the Liquidator. He was unable to recall whether DMXS's units were redeemed or sold. He did not know whether DMXS continued to hold any units.
4. CBD Sydney Investments is not named as a unit holder in the Zapato Appointment Deed. Had steps been taken to register CBD Sydney Investments as a unit holder, Ms Page (as the sole director of Parkway One) and Mr Baker (given his association with CBD Sydney Investments as the trustee of his family trust) were uniquely placed to be aware of that. The fact that CBD Sydney Investments is not named as a unitholder may be explained by the fact that at the time this deed was executed and the letter was sent by the defendants' solicitors (then representing Zapato), Ms Page and Mr Baker were working together with the joint objective of removing the Liquidator from Parkway One and that they misrepresented the true position in their attempt to secure that objective. However, it may also be explained by the fact that the Parkway One trust register was not updated to give effect to the issue of units to CBD Sydney Investments because either the alleged Trust Investment Agreement did not exist, or was not performed. The plaintiffs have not established that CBD Sydney Investments was registered as a unitholder in the Parkway One Trust - the evidence on that issue is contradictory and unreliable. It does not give rise to the requisite level of satisfaction necessary to support a positive finding that the arrangement in relation to acquisition of units in this trust formed part of the overarching Trust Investment Agreement, as alleged by the plaintiffs. This is another factor which weighs against finding that the alleged oral Trust Investment Agreement was in fact agreed between Ms Page and Mr Baker.
5. The mechanics under the Ohmut Trust in relation to the issue of new units and the definition of Unit Holder by reference to the entry into the Register are substantially to the same effect, although differently framed. "Unitholders" is relevantly defined in cl 1.1 as "the person or persons, firm or firms, corporation or corporations registered from time to time in the register of Unitholders". Ohmut, Lealtad Pty Ltd (as trustee for the Lealtad Trust) and Harmat (as trustee for the Harmat Trust) are defined as the Original Unitholders, being the unitholders as at the date of commencement of the Ohmut Trust. The Original Unitholders are deemed to be registered as the holders of the original units: cl 2.2(b).
6. Clause 3 of the trust deed provides the mechanism for the application for and registration of units. Analogous to the Parkway One Trust, the issue of units in Ohmut Trust takes effect upon the units being entered in the trust register. Clause 3.1 and the Second Schedule of the Ohmut Trust set out the form of application for units that must be signed and lodged with the Trustee. Clause 3.3 provides that "[a]fter acceptance of any application for Units by the Trustees they must enter the applicant upon the Register of Unitholders".
7. Clause 4 provides the particulars of the Register of Unitholders and Unit Certificates. The Trustee must keep a Register of Unitholders which records inter alia the date at which the name of each Unitholder was entered in the Register in respect of the Units in their name and the date at which any holder of Units ceased to be a Unitholder: cl 4.1(a). A person recorded in the Register as the Unitholder will be recognised by the Trustees as entitled to the Units registered in their name or to exercise the rights and privileges of the registered holder thereof pursuant to the deed: cl 4.1(b). Where the person holds units as a trustee, this must be marked in the Register in such a way as to identify them as being held in respect of the trust: cl 4.1(b).
8. For these reasons, I reject the plaintiffs' submission that the documents relating to the trust units drawn up by Mr Foate and executed in late January and early February 2017 demonstrate that the Trust Investment Agreement as alleged by the plaintiffs was made and that these documents represent performance of the Page interests' performance of their obligations under the alleged agreement.
9. The second of the steps that the plaintiffs rely on as being taken pursuant to the alleged Trust Investment Agreement is the allegation that in early February 2017, Mr Baker asked Mr Page to assist him in applying for a NAB loan facility for Waratah One, for the purpose of funding Mr Baker's $1.5 million capital contribution under the Trust Investment Agreement: PFASOFC, [75](c). The plaintiffs submit that the NAB facility was approved on 12 April 2017. The NAB facility is not in evidence. The evidence is confined to email correspondence between Mr Baker and Mr Blakemore, a NAB Senior Business Banking Manager in March 2017:

Hi Tim,

Following on from out telephone conversation late last week and earlier today please find attached completed and signed Senior Managing Official letter on CL Asset Holdings Limited letter head.

As discussed, the desire is to put in place a facility / loan (at 70% LVR) secured by the property held by Waratah One Pty Ltd that can be used for our business activities.

Please let me know if you require anything further at this point in me.

Kind regards,

Theo Baker

1. There is no evidence of the loan limit or the loan purpose other than the generic reference in Mr Baker's email of the "desire ... to put in place a facility / loan (at 70% LVR) secured by the property held by Waratah One Pty Ltd that can be used for our business activities". On the state of the available evidence, it is not possible to ascertain whether Mr Baker's desired loan terms were incorporated into the NAB facility. There is no contemporaneous evidence of the recorded loan purpose, loan limit or relevant terms. There is no file note recording the content of any earlier conversations between Mr Baker and the NAB as to the loan purpose, loan limit or relevant terms. Mr Baker referred to meetings with Mr Blakemore of NAB, but did not give any evidence as to the meeting preceding this email. He was not cross-examined on his email about the NAB loan facility. There is only Mr Baker's bare assertion in his email about his desired loan structure and Ms Page's evidence that there was a NAB loan facility totalling approximately $1.5 million in place. It remains unclear whether the loan facility was contingent on any conditions precedent relating to the joint rezoning applications or the status of the business activities referred to in Mr Baker's email to the NAB. I was not assisted by any closing submissions plaintiffs did not address this topic in closing submissions.
2. Upon receipt of the executed loan documents which included a letter from CLAH, the loan was purportedly made to Waratah One, a subsidiary of CLAH, not CBD Sydney Investments which is the alleged unitholder of the Parkway One Trust and the Ohmut Trust.
3. [A letter from the plaintiffs' solicitor dated 15 September 2020 describes the NAB facility as being sought by Mr Baker, assisted by Mr Page, for the purpose of funding for the remaining $1.5m of his capital investment pursuant to the Trust Investment Agreement. The funding was obtained through Waratah One, which was relevantly the owner of 58 Harriet Street. It further states that notwithstanding that Waratah One obtained the facility to meet its commitments under the Trust Investment Agreement, on information provided to the plaintiffs, Mr Baker used these funds for other purposes including contributions to work on his family home and to CLAH. Given the proximity of this letter to the commencement of the litigation, I place little weight on it.
4. I reject the plaintiffs' submission that the documents in evidence in relation to the NAB Facility for Waratah One demonstrate that the Trust Investment Agreement was made in the terms alleged by the plaintiffs.
5. The remaining steps that the plaintiffs plead as having been taken pursuant to the Trust Investment Agreement are the serial payments amounting to a total of $662,719 made in the period January 2017 to June 2018 and that in mid to late 2018, Ms Page gave Mr Baker "time to reorganise his financial commitments and expected that [Mr Baker] would recommence his capital contributions pursuant to the Trust Investment Agreement in the future": PFASOFC, [75(e)].
6. As to the first of these steps, it is common ground that these payments were made by CLAH not by Mr Baker (who was bankrupt) and not by CBD Sydney Investments. For the reasons I have already given, I do not accept the plaintiffs' submissions that the making of these payments is evidence that alone or in combination with the whole of the evidence demonstrates that the alleged Trust Investment Agreement in fact existed. The fact that these payments were made casts no real light on what, if anything, was agreed in early 2017. The making of the payments by CLAH is equally consistent with CLAH advancing funds which were repayable on demand and secured by the Ohmut/Parkway Securities.
7. As to the second of these steps, for the reasons I have already given, the fact that Ms Page took no steps to enforce the alleged agreement when each of Ohmut and Parkway One were under serious financial pressure and on the plaintiffs' case, Mr Baker had stopped making payments which he was legally obliged to make, speaks against finding that the Trust Investment Agreement was made on the terms alleged by the plaintiffs. I do not accept that the failure to take action to enforce the alleged agreement is explained by Ms Page's claims that she did not act because of her friendship with Mr Baker. I find it more likely that Ms Page did not take steps to enforce the alleged agreement because there was no such agreement.
8. The remaining matters on which the plaintiffs rely in their closing submissions derive from the representations made as to the financial relationship between CLAH and Parkway One which were made during late 2019 when Ms Page, with Mr Baker's assistance, was seeking to terminate the winding up of Parkway One.
9. As I have mentioned, Ms Page brought two applications in which she sought to terminate the winding up of Parkway One. The first application was filed in the Supreme Court on 27 August 2019. The application was dismissed on 1 November 2019 after a contested hearing on 28 October 2019_: In the matter of Parkway One Pty Limited (in liquidation)_ [2019] NSWSC 1495 (Rees J) (Parkway One Pty Limited (No 1)). Mr McDonald appeared for Ms Page on this application. The second application was filed on 3 December 2019 and was ultimately discontinued on 9 December 2019: Parkway One Pty Limited (No 2) at [6]. In anticipation of and in connection with these applications various correspondence was sent and affidavits were prepared. Only some of that material is in evidence in these proceedings. I infer that the material that was not adduced in evidence in these proceedings, including the affidavits previously made by Ms Page, would not have assisted the plaintiffs' case. Ms Page gave evidence on this topic, as did Mr Baker. As I have already mentioned, Mr Baker was given a s 128 certificate in relation to his evidence on this topic.
10. The evidence before me demonstrates that in addition to Ms Page and Mr Baker , the following people were involved in the attempts to terminate the winding up of Parkway One -Mr Page; Mr Joannou, who it will be recalled was Ms Page's accountant and tax agent; and Mr McDonald, whose role and relationship to the parties is set out earlier in these reasons. In this period Mr Baker described himself in his correspondence as Managing Director of CLAH. He was at this time also a director of CLAH.
11. In dismissing the first application made by Ms Page, Rees J made the following Delphic observation about the evidence adduced in those proceedings as to the alleged personal loans from Ms Page to Elefteria and Parkway One (Parkway One Pty Limited (No 1) at [65]):

On 30 September 2019, Mr Joannou provided the liquidator of Elefteria Properties and counsel for Ms Page in these proceedings with loan documents said to have been prepared some years ago by Theo Baker and Ms Page to protect and secure Ms Page's loans to Elefteria Properties and Parkway One. The loan agreements are particularly obtuse and also curious.

(a) On 30 June 2014, Parkway One entered into a loan agreement with Ms Page in respect of an unspecified, interest free, loan by Ms Page to the company. Ms Page executed the agreement as sole director of Parkway One, but she did not become a director of the company until three months later, on 30 September 2014. Documents in the same terms were executed on 30 June 2015 and 30 June 2016.

(b) Each of the loan agreements has the same footer containing the initials of Ms Page's counsel in these proceedings and the same Word document identification number.

There is no evidence in respect of who prepared these documents or when, or when the documents were executed, and I make no finding in this regard.

1. When Ms Page's first application was unsuccessful, and after she had discontinued her second application, Mr Baker incorporated and became the sole director and shareholder of a new company, Zapato, to act as replacement trustee of the Parkway One Trust. Mr Baker remained the sole director and shareholder of Zapato from its incorporation on 9 December 2019 until Mr Lazaris was appointed as director on 20 February 2020 and acquired 50% of Zapato's shares. Mr Baker has been the sole secretary of Zapato since incorporation.
2. In the applications to terminate the winding up, Zapato was represented by Mr Carkagis and Christian Yager of Diamond Conway, Ms Page was represented by Gavin Parsons and Joanna Yu of Gavin Parsons & Associates and the Liquidator was represented by Phillip Parker and Blake Shaw of Bridges Lawyers.
3. The plaintiffs submit that a term of the alleged Trust Investment Agreement was that Mr Baker agreed to the forgiveness or discharge of the Ohmut/Parkway Facility through a pro tanto reduction of the obligation to contribute $2 million under the Trust Investment Agreement which was either his obligation or that of the trustee of his family trust, CBD Sydney Investments. It is far from pellucid as to how the plaintiffs frame the obligations said to arise under the alleged Trust Investment Agreement. I will not repeat what I have already said in relation to the plaintiffs' failure to demonstrate that CLAH was a party to the alleged agreement. There is however an additional argument made by the plaintiffs which is that in 2019 in connection with the flurry of activity seeking to terminate the winding up of Parkway One, Mr Baker made written representations to the effect that Parkway One, a joint borrower under the Ohmut/Parkway Facility, did not owe CLAH any money.
4. The plaintiffs rely on four documents in which they allege Mr Baker represented that Parkway One did not owe CLAH any money, a position which the plaintiffs correctly observe is entirely inconsistent with the case the defendants seek to make in these proceedings. The documents on which the plaintiffs rely are replete with accounts of the financial relationships between Ms Page, her companies and CLAH that conflict with the plaintiffs and defendants' respective positions on those same issues in these proceedings. The plaintiffs do not seek to defend the whole of the account of the financial relationships given in these documents as being true. Indeed, Ms Page acknowledges in cross-examination that in many important respects what is said in those documents is "wrong", by which I find that she knew that what was being put forward to the Liquidator and in support of her application to remove them was not true. The evidence on this topic is a powerful demonstration of the fact that Ms Page was prepared to say whatever she needed to, including in her affidavit in support of her application, to achieve her objective of removing the Liquidator from Parkway One. The evidence further demonstrates that Mr Baker was not only complicit in this endeavour but active in similarly saying whatever he needed to achieve that objective, regardless of the truth.
5. In this context, the plaintiffs seek to cherry pick the representations made by Mr Baker to the effect that Parkway One was not indebted to CLAH as being consistent with the existence of the Trust Investment Agreement on the basis that it was pursuant to that agreement that the debt under the Ohmut/Parkway Facility was forgiven.
6. The defendants respond to the plaintiffs' submissions by relying on Mr Baker's oral evidence in which he says that the representations as to Parkway One not being indebted to CLAH made by him in these documents and the corresponding assertions of fact that he contributed to the drafts of documents to be signed by Ms Page were untrue.
7. Mr Baker's status in relation to CLAH had changed significantly by the time of the alleged conduct in late 2019. At the time the representations were made, Mr Baker was the sole director of CLAH. He signed correspondence at this time describing himself as the managing director of CLAH. CLAH had reverted to being a private company by this time. By way of contrast, at the time the alleged Trust Investment Agreement is said to have been made, Mr Baker was an undischarged bankrupt and precluded from being a company director and CLAH was an unlisted public company.
8. The mercurial changeability of the evidence and the pervasive lack of creditworthiness demonstrated by the three protagonists makes a coherent reconciliation of the conflicts in the evidence impossible. Much of the evidence concerning the protagonists' dealings with one other and with third parties is comprised of layer upon layer of deception. I will limit my consideration to the plaintiffs' overarching contention that the events of late 2019 that occurred in connection with Ms Page's attempts to remove the Liquidator of Parkway One support a finding that the Trust Investment Agreement was made and that the $500,000 debt owed under the Ohmut/Parkway Facility was forgiven pursuant to that alleged agreement.
9. The representations on which the plaintiffs rely are expressly confined to the status of Parkway One as a debtor of CLAH. The representations on which the plaintiffs rely are contained in the following documents.
10. On 11 September 2019, Mr Baker sent an email to Ms Page attaching a word document titled "Fiona's Response to Liquidator". The defendants plead that this document was prepared by Ms Page and counsel acting on her behalf. However, it was established on the evidence that this document went through a number of iterations and that Mr Baker made a relevantly significant addition to the content of this document, by inserting the additional statement that "Parkway has repaid all moneys due to CL Asset Holdings, however, security remains over the company in favour of CL Asset Holdings should I need to borrow funds sometime in the future." Mr Baker said in his oral evidence that it was untrue that Parkway had repaid all monies due to CLAH and that he knew that moneys were still outstanding at this time. He said that at this time Parkway One and Ohmut were collectively indebted to CLAH in the amount of $1.4 million, excluding interest. The plaintiffs submit that Mr Baker's evidence was entirely self-serving, entirely unexplained, and should be rejected. Either way, the representation made in the additional text inserted by Mr Baker is expressly confined to a representation about Parkway One, not Ohmut. For completeness, I note that Mr Baker said that other parts of this document, which he either did not change or contributed, were also untrue.
11. On 24 September 2019, Mr Baker was emailed by Mr McDonald with a draft letter proposed to be sent by CLAH to Mr Joannou. The draft was said to be based on instructions Mr McDonald had obtained from Ms Page and her accountant, Mr Joannou. This draft was finalised and sent on the CLAH letterhead to Mr Joannou by Mr Baker on 25 September 2019. In this letter, Mr Baker refers to a facility, which I infer to be the Ohmut/Parkway Facility, as having "multiple company borrowers/guarantors, being [Ms Page's] companies". There is no representation as to whether any money is owing to CLAH by Ohmut as one of the "company borrowers/guarantors". The relevant assertion is that CLAH "is not lodging a Proof of Debt or claim in the liquidation of Parkway One". In his oral evidence, Mr Baker said that this statement was true. He said that although he regarded CLAH to be a secured creditor of Parkway One, the reason he included in his letter that CLAH would not be lodging a proof of debt in the liquidation of Parkway One was "that for Parkway One to come out of liquidation, it needed to demonstrate it was solvent, and the discussion I had with Lemuel Page and Geoffrey McDonald was that if [CLAH] lodged a proof of debt, it - it would - Parkway One would not appear to be solvent." Again, for completeness I note that Mr Baker said that other parts of this document were untrue.
12. On 28 November 2019, Mr Baker emailed Mr Page and Ms Page setting out seven talking points for discussion by Ms Page with the NAB in relation to the liquidation of Parkway One. The second of the talking points was an assertion that "[s]ince the company was placed into liquidation any outstanding creditors (even if they were not due) have been paid in full. There are no outstanding creditors other than the NAB secured debt." In his oral evidence, Mr Baker said that this was not a true statement to his knowledge at the time. He maintained that at this time Parkway One and Ohmut owed CLAH $1.4 million without interest.
13. The final document relied on by the plaintiffs in this context is a letter from Diamond Conway, the solicitors acting on behalf of Zapato, which was sent the Bridges Lawyers, the Liquidator's solicitors, on 17 December 2019. As noted above, Mr Baker was the sole director and shareholder of Zapato. He acknowledged that the letter was sent on his instructions and that he saw it before it was sent. In the first paragraph of the letter, Parkway One is defined as the Company. The letter encloses the Zapato Appointment Deed by which Zapato is purportedly appointed as the new trustee of the Parkway One Trust by Harmat, who is identified as the sole unitholder in the Parkway One Trust. Paragraph 10 of the letter is as follows:

We are instructed that the debts owing by the Company have been discharged, other than those debts owing to the National Australia Bank Limited, as a registered mortgagee, and debts owing to parties related to the director and/or the sole beneficiary. If the liquidator has become aware, in the time since he took over office of the existence of other Trust liabilities please advise us of those details. We are instructed that Zapato will take steps to discharge those liabilities. However, as we say, our instructions are that there are no creditors except the related entities who, we are instructed, are prepared to enter into a deed by which their claims against the Company (as the previous trustee of the Trust) are novated to the new trustee. The deed would have the effect of releasing the Company from any claims.

1. In his oral evidence in chief, Mr Baker claimed that he had given instructions to Diamond Conway that Parkway One was indebted to CLAH, and that reference to "debts owing to parties related to the director and/or the sole beneficiary" should refer to Mr Baker as the director and sole beneficiary. When asked to clarify what he understood the reference to sole beneficiary meant at the time he gave instructions for this letter to be sent, Mr Baker said that "sole beneficiary really related to Zapat[o]" and him as the sole beneficiary of Zapato. I reject Mr Baker's evidence attempting to explain away the plain meaning of the letter that was prepared on his instructions and which he reviewed before it was sent. The plain meaning of the statement that "the debts owing by the Company have been discharged, other than those debts owing to the National Australia Bank Limited, as a registered mortgagee, and debts owing to parties related to the director and/or the sole beneficiary" read in context is that the Company (Parkway One) has discharged all of its debts other than the debts owed to the NAB and to its related entities (that is, entities related to Ms Page as the director of Parkway One and as the sole beneficiary of the Parkway One Trust through her interest in Harmat). Mr Baker's evidence that this phrase was intended to refer to him in his capacities as a director of CLAH and as a beneficiary of Zapato does not make sense in context. It was an obvious attempt by Mr Baker to defuse another representation made by him in the context of his endeavours to assist Ms Page in removing the Liquidator from Parkway One by representing that the debts owing by Parkway One to CLAH had been discharged. The plaintiffs are correct to submit that the effect of this letter is to represent at this time that Parkway One did not owe money to CLAH. However, even so, this letter does not include any representation as to the debts of Ohmut being forgiven or as to the current status of any debt owed by Ohmut to CLAH.
2. In this proceeding, the parties have framed the issue in relation to the identification of the debtor for the $500,000 advance made under the Ohmut/Parkway Facility as a choice between Ohmut and Elefteria. In accordance with the way in which the parties have framed the issues, I have found that the debt was owed by Ohmut, and not by Elefteria. The documents on which the plaintiffs rely are silent on the status of Ohmut as a debtor of CLAH, whether pursuant to or independently of the Ohmut/Parkway Facility.
3. The plaintiffs' submission seeking to extend the relevant representations to debt owed by Ohmut to CLAH is, at best, tenuous. The plaintiffs' submission reduces to the proposition that because Mr Baker admitted that no debt was owing to CLAH by Parkway One pursuant to the Ohmut/Parkway Facility, it follows that no debt was owing to CLAH under the facility by Ohmut either. The elision in the plaintiffs' submission is immediately apparent. The plaintiffs seek to convert an admission by CLAH to the effect that as at late 2019, Parkway One was not indebted to CLAH under the Ohmut/Parkway Facility to an admission that at this time Ohmut likewise was not indebted to CLAH under the Ohmut/Parkway Facility.
4. For the sake of testing the plaintiffs' submissions on this point, it may be accepted that Mr Baker's representations in 2019 were admissions by CLAH given Mr Baker's status at that point in time. However, it does not follow that an admission by CLAH that Parkway One does not owe a debt under the Ohmut/Parkway Facility is also an admission, express or implied, that Ohmut does not owe a debt under the Ohmut/Parkway Facility. Based on the collective definition of Borrower under the Ohmut/Parkway Facility and the collective execution of the relevant drawdown notice by each of Parkway One, Ohmut and Harmat, it may be arguable that it is implicit in the admission that Parkway One is not indebted to CLAH under the Ohmut/Parkway Facility that likewise Ohmut is not indebted to CLAH under the Ohmut/Parkway Facility. But even if that is correct, the fact that Mr Baker made the admission in 2019 is explicable other than by the relevant Ohmut debt having been forgiven as a result of the making of the Trust Investment Agreement. I am not concerned here with whether this evidence is admissible as an admission - it clearly is. What I am concerned with is whether the admission supplies a reliable basis on which I could conclude that the $500,000 debt under the Ohmut/Parkway Facility was forgiven pursuant to the Trust Investment Agreement. I do not regard the admissions made by Mr Baker on behalf of CLAH in late 2019 as reliable evidence from which I could conclude with the requisite level of actual satisfaction that the Trust Investment Agreement was made and that pursuant to that agreement Ohmut's debt was forgiven.
5. Mr Baker, Ms Page and Mr Page are not witnesses of credit. They each bend and shift their evidence to best serve their own interests as they perceive their interests to be at any given point in time. In late 2019, their respective interests congealed in relation to Parkway One. At this time, they were working in concert to attain their congruent objective which was to terminate the liquidation of Parkway One. They were each prepared to put forward a version of events that would best serve that goal. The evidence of Mr Baker is inherently unreliable, even though it is an admission against CLAH's interests in their present manifestation in these proceedings. I attach little weight to it when considering it in the context of the whole of the evidence in relation to the alleged Trust Investment Agreement and in particularly, the alleged term by which Ohmut's debt was forgiven.
6. In reaching this conclusion, I have not overlooked the plaintiffs' further submission that the fact that Mr Baker played an active role in assisting Ms Page with her application to terminate the winding up of Parkway One strongly supports the conclusion that Mr Baker had a personal stake in the fate of the Parkway One Trust which the plaintiffs rely on in turn as support for the existence of the alleged Trust Investment Agreement because in the plaintiffs' submission, that interest can only have arisen as a result of the Trust Investment Agreement. I do not accept that submission. That is not the only plausible explanation for Mr Baker's conduct at this time. The complexity and opacity of the financial dealings between Mr Baker and Ms Page and Mr Page (and the companies which they each controlled) was such that it is highly improbable that the explanation for Mr Baker's conduct is as the plaintiffs now contend in these proceedings. It may have been that Mr Baker was motivated to act to protect and preserve the leverage that he contended he had by having the trust unit documentation in reserve. That leverage is for the benefit of CBD Sydney Investments and through it, Mr Bakers' family trust. It may have been completely opportunistic on his part to seek to remove the Liquidator from Parkway One in order to obtain an advantage at a point in time when Parkway One was vulnerable. It may have been for a myriad of other reasons given the lack of clarity about the dealings between the three protagonists and the companies they controlled. I am left in the position described by Dixon CJ in Murray v Murray (1960) 33 ALJR 521 at 524, with reference to Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, as being unfortunate in that I have no opinion:

What the civil standard of proof requires is that the tribunal of fact, in this case the judge, shall be "satisfied" or "reasonably satisfied". ... But the point is that the tribunal must be satisfied of the affirmative of the issue. The law goes on to say that he is at liberty to be satisfied upon a balance of probabilities. It does not say that he is to balance probabilities and say which way they incline. If in the end he has no opinion as to what happened, well it is unfortunate but he is not "satisfied" and his speculative reactions to the imaginary behaviour of the metaphorical scales will not enable him to find the issue mechanically.

(Emphasis added.)

1. I am not satisfied that the representations made in late 2019 are reliable evidence from which I can be satisfied that Ohmut's debt under the Ohmut/Parkway Facility was forgiven pursuant to the alleged Trust Investment Agreement.
2. The plaintiffs bear the onus to establish the Trust Investment Agreement. They have not discharged that onus. Accordingly, Issue 10 is answered in the negative. The plaintiffs have not established to the civil standard that Mr Baker and Ms Page entered into an Trust Investment Agreement in or about January 2017 in relation to the acquisition by CBD Sydney Investments of units in the Parkway One Trust and the Ohmut Trust.

11.9.2 Issue 11 - If so, was the liability to repay $500,000 to CLAH (whether it was a liability of Elefteria or Ohmut) discharged, forgiven or set off under the terms of the Trust Investment Agreement?

1. I have determined Issue 10 adversely to the plaintiffs. It follows that the liability of the Borrowers to meet their obligations under the Ohmut/Parkway Facility were not discharged, forgiven or set off pursuant to the Trust Investment Agreement.

11.9.3 Issue 12 - Were other amounts, paid by CLAH between 13 January 2017 and 7 June 2018, payments pursuant to the Trust Investment Agreement and wrongly debited to the Ohmut/Parkway Facility account?

1. I have determined Issue 10 adversely to the plaintiffs. It follows that the amounts paid by CLAH during the period 13 January 2017 and 7 June 2018 were not payments pursuant to the Trust Investment Agreement. Those payments, the making of which is not disputed, were not payments made pursuant to the Ohmut/Parkway Facility. They are debts which are repayable on demand and secured by the Ohmut/Parkway Securities.

11.9.4 Issue 13 - If it is found that Mr Baker and Ms Page entered into the Trust Investment Agreement, did they the parties to the Trust Investment Agreement nevertheless abandon or abrogate the Trust Investment Agreement?

1. In light of my conclusion in respect of Issue 10, this issue does not arise.

11.10 Issues 14 to 16 - Extant debt owing by Ohmut or Parkway One as at the date the Ohmut Receivers were appointed

1. Issues 14 to 16 are related in that they are directed to establishing whether as at 30 July 2020, when CLAH appointed the Ohmut Receivers, either Ohmut or Parkway One owed any debt to CLAH. The plaintiffs contend that Ohmut and Parkway One were not indebted to CLAH as at the appointment date as the specific ground on which they challenge the appointment of the Ohmut Receivers. However, having regard to the proper construction of the Ohmut GSA and the Parkway GSA, the critical question going to the validity of the appointment of the Ohmut Receivers is not whether there is extant debt as at the appointment date, but rather whether an Event of Default had occurred which would empower CLAH to appoint the Ohmut Receivers.
2. In light of the proper construction of the relevant Ohmut/Parkway Securities, Issues 14 to 16 are of limited relevance to the relief sought by the plaintiffs.

11.10.1 Issue 14 - Were the designated further amounts wrongly debited to the Ohmut/Parkway Facility account?

1. The plaintiffs contend that the following debits which CLAH made to the Ohmut/Parkway Facility account are not properly characterised as advances made pursuant to the Ohmut/Parkway Facility:

(1) $112,344.99 paid to Andco on 22 August 2016;

(2) $20,000 and $15,010.39 paid to the trust account of Geoffrey McDonald in or around November 2016 and May 2017;

(3) $250,000 and $200,000 paid to Anoif One Pty Ltd on 17 January 2017 and 7 February 2017 respectively (the Anoif Payments);

(4) $31,714 paid to Travelplan Australia Pty Ltd on 7 February 2017;

(5) a total of $65,000 paid to Gavin Parsons & Associates between 14 November 2019 and 11 December 2019; and

(6) $5,000 paid to the trust account of JHK Legal on 21 February 2020.

1. The plaintiffs submit that these payments: first, have nothing to do with Parkway One, Ohmut or Harmat; second, were not made pursuant to any written Drawdown Notices under the Ohmut/Parkway Facility; and third, were not requested or authorised by Ms Page as advances under the Ohmut/Parkway Facility.
2. The defendants' position in relation to these payments echoes their position in relation to the payments made by CLAH to or at the direction of Shyzi. The defendants maintain that these advances were made under the Ohmut/Parkway Facility pursuant to requests made by Mr Page in his capacity as agent of Ohmut as a Borrower. The defendants rely on CLAH's internal documents which were prepared by, or as a result of instructions given by, Mr Baker in support of their contention that the advances were made pursuant to the Ohmut/Parkway Facility.
3. Notwithstanding the relative contemporaneity of CLAH's internal documents, I do not find them to be reliable because they are the product of instructions given by Mr Baker and as such are no more reliable than Mr Baker. I will not repeat the reasons I have given for reaching this conclusion in relation to the equivalent documents in Shyzi. I draw the same conclusion as to the reliability of CLAH's internal records which relate to advances made to Ohmut and Parkway One on the same basis as I have identified in addressing the corresponding documents in the Shyzi claim.
4. Moreover, CLAH's internal records at the individual transaction level contain such scant detail that the annotations on which the defendants rely are equally consistent with the possibility that the advances were made under the documented Ohmut/Parkway Facility or alternatively, as advances repayable on demand secured by the Ohmut/Parkway Securities as all monies securities. Broadly the internal CLAH records at the transactional level are limited in detail and typically say "Parkway Loan", "Loan to Parkway" or "Loan to Ohmut". In other instances, Mr Baker's payment instructions make no reference to Parkway One or Ohmut at all. I have already addressed the fact that there is insufficient reliable evidence from which I can conclude that contemporaneous loan ledgers were maintained by CLAH in respect of the facilities at issue in these proceedings. The defendants have not adduced the type of primary records (including from MYOB) that one would expect to be maintained on a contemporaneous basis by a company such as CLAH which was engaged in the business of short-term lending.
5. More importantly, for the reasons I have given in considering Issue 9, the evidence demonstrates that the initial advance of $500,000 effectively exhausted the available limit of the Ohmut/Parkway Facility and no other advances were made under it: see part 11.8 of these reasons.
6. All of the payments identified in paragraph [1442] above which the defendants contend were made under the Ohmut/Parkway Facility were made after the end of the Availability Period during which the advance limit could be drawn and at a time when there was insufficient limit available to be drawn to cover the further alleged advances. There is no evidence that the Facility Limit was increased or that the Availability Period was extended. The majority of the payments identified in paragraph [1442] were made after the expiration of the Ohmut/Parkway Facility, which was not extended. There are no drawdown notices to support these alleged advances. The defendants in their closing submissions did not identify any document, text message or email external to CLAH which connects these drawdowns with the Ohmut/Parkway Facility. For the reasons I have given I do not accept Mr Baker's oral evidence as to Mr Page specifically requesting that particular payments be treated as drawdowns under the Ohmut/Parkway Facility. Accordingly, I find that the designated further amounts specified in Issue 14 were not advances under the Ohmut/Parkway Facility.
7. Where the payments were made by CLAH to or at the direction of Ohmut or Parkway, then the debts are repayable on demand. To the extent that the debts fall within the definition of Secured Moneys, the debts are secured by the Ohmut and Parkway Securities.
8. In light of this conclusion, it is not necessary to address each of the designated further amounts in seriatim. Apart from in limited instances, the defendants have not established to the civil standard that either Ohmut or Parkway One is the entity responsible for repaying each of these payments to CLAH. The defendants have not sought in any focused way to prove the identity of the entity who borrowed the funds. The defendants' position was that the payments were made pursuant to the Ohmut/Parkway Facility, under which each of Ohmut, Parkway One and Harmat was designated as Borrower. I have rejected the defendants' contention that the payments were made under the Ohmut/Parkway Facility. In relation to most of the designated payments identified in Issue 14, the defendants did not in any substantive way seek to establish the identity of the debtor, just that Mr Page requested the payment and allegedly asked that it be made under the Ohmut/Parkway Facility. The main support for that contention is Mr Baker's oral evidence, which I have rejected. The other evidence on which the defendants rely to support this contention are the directions Mr Baker gave to CLAH personnel, which are ambiguous as to whether they are loans to the entity nominated or advances under the facility in the entities' names. These internal directions are also explicable by the practice that Mr Baker followed during the period when he was not a director of CLAH and as a public company its accounts were reviewed by independent auditors of creating a documentary veneer of legitimacy for the movement of funds from CLAH to entities associated with Ms Page and Mr Page.
9. The complicated intertwining of the financial affairs of Ms Page, Mr Page and Mr Baker and the companies they controlled whether alone or in combination, including Yipeeo and Anoif One, and the pervasive credit issues which attend their evidence makes it unsafe to make findings on the basis of the small amount of evidence before me in relation to these payments where it is not necessary to do so. That is well illustrated by the evidence in relation to the so called Anoif Payments to which I refer below.
10. There are two exceptions where the evidence does permit me to make a positive finding and where it is relevant to do so.
11. First, the payments to Andco, including the $1,000 deposit on 26 July 2016 for a LandCruiser for Mr Player (defined above as the Andco Payment) and the outstanding balance of $112,344.99 which was paid on 22 August 2016 which the defendants attributed as a drawdown on the Ohmut/Parkway Facility was in fact an advance to or at the direction of Shyzi. As mentioned, one version of the itemised invoice dated 8 August 2016 that has been produced by the defendants and is in evidence bears undated the handwritten annotation "Loan Parkway One". Neither Ms Page nor Mr Page was cross-examined about the payment of the balance of $112,344.99. The defendants have not established that this payment was made to, or at the direction of, Parkway One or Ohmut, whether under the Ohmut/Parkway Facility or otherwise. As I have already found, the documents that are produced in relation to the payments to Andco are the product of an ex post facto reconstruction informed by the lens of the present proceedings. I do not accept that they are debts for which Ohmut is liable.
12. Second, the so-called Anoif Payments of $250,000 and $200,000 paid by CLAH on 17 January 2017 and 7 February 2017 were paid to Ohmut. In the ordinary course, the payments having been made by CLAH to Ohmut suggests that these amounts were repayable by Ohmut on CLAH making a demand. I make a finding accordingly. They were not advances under the Ohmut/Parkway Facility for the reasons I have already given. In making this finding I have considered the evidence relied on by the plaintiffs to contend that Ohmut was not obliged to repay these amounts. The evidence on which the plaintiffs and the defendants rely is unsatisfactory in many respects. It does not provide a reliable basis on which to depart from the finding I have made that the payments having been paid by CLAH to Ohmut were repayable on demand in the absence of any agreement being established to the contrary. The evidence does not permit a conclusion as to the purpose for which the funds were advanced or whether there was an agreement in relation to repayment of the funds to which CLAH was a party. I will briefly address the evidence in relation to this topic to illustrate why I have reached the conclusion that the only reliable evidence is that the money was paid by CLAH to Ohmut and is repayable on demand.
13. The plaintiffs contend that although the payments were made to Ohmut, the payments were made at the direction of Anoif One and that it was Anoif One that is obliged to repay CLAH. As previously mentioned, Anoif One was incorporated on 21 November 2016 with Ms Page and Ms Comino as directors. Mr Baker was still an undischarged bankrupt at the time Anoif One was incorporated. Mr Baker has an indirect interest in Anoif One through CBD Sydney Investments. Harmat holds the remaining shares in Anoif One. Ms Page said that Anoif One was incorporated following a conversation or conversations she had with Mr Baker. She said they "were going to look at property investments. Things like that" and she recalled it because she "thought it was fun" with her name spelt backwards as the company name. She said she discussed it with Mr Page and he thought it was a good idea and that she was "excited". In November 2016, Mr Baker emailed Chris Tsovolos, a solicitor at Bartier Perry, copied to Mr Page, instructing Mr Tsovolos to establish a new unit trust with Anoif One as trustee, Ms Comino and Ms Page as the directors and the units being equally held by Harmat and CBD Sydney Investments. In that email, Mr Baker instructed that the "purpose of this new entity is to purchase and typically, hold property for investment." This email was not copied to Ms Page.
14. The plaintiffs contend that in early 2017, Anoif One did not yet have its own bank account so Ms Page agreed to allow Ohmut's bank account to be used for an urgent investment opportunity which arose in January 2017. Mr Baker agreed that he knew that Anoif One did not have a bank account at this time.
15. Ms Page said that the payment of $250,000 was made to fund the acquisition of investments by Anoif One and denied that it was a loan to Ohmut. She admitted that she had authorised Mr Page to provide Ohmut's bank details to enable this transfer to be made and that she wanted the money paid into Ohmut's bank account.
16. There is some support in CLAH's contemporaneous records for the plaintiffs' contention that this payment was paid to Ohmut at the direction or on behalf of Anoif One. However, whether the references in the contemporaneous documents to Anoif One are a reliable indicium of what actually transpired between Mr Page and Mr Baker is difficult to say. This may well be another instance of Mr Baker disguising in CLAH's internal records the real destination of fund transfers or it may be an instance of Mr Page deceiving Mr Baker. It may be another instance of the making of what was euphemistically described in Mr Baker's evidence as "disguised payments".
17. In an internal CLAH email on 17 January 2017, Mr Baker directed payment of $250,000 to bank account details of an account held by Ohmut but in his email he did not specify the name of the account holder:

$250k RTGS to BSB 082748 ACCT 837516519 From St George Account

Holding Deposit for Newcastle property

1. Mr Baker's email is consistent with a text message he received earlier that day from Mr Page. In evidence is a text message sent by Mr Page to Mr Baker at 8.32am on 17 January 2017 which says:

$250k OD this morning?? BSB 082748 ACCT 837516519 - how quick can it be fixed, over my authority.

1. Mr Baker gave evidence that Mr Page told him that the $250,000 was for Anoif One. Whether Mr Page told him that the payment was for Anoif One or whether Mr Baker was complicit and knew the payment was in truth directed to Ohmut's account is not established on the evidence. It is curious that Mr Baker would direct that the payment was being made to a bank account of Anoif One's when he admitted that he knew at this time that Anoif One did not have a bank account of its own but that appears to be what he has done. It is possible this is another instance of Mr Baker creating a false veneer in CLAH's internal records. It was during the time that he was an undischarged bankrupt but in de facto control of CLAH, which as an unlisted public company at that time. The St George RTGS transfer detail report dated 17 January 2017 for the $250,000 payment contains information that was entered by an employee of CLAH after receiving Mr Baker's instructions. The "To" field includes the name "Anoif Pty Ltd" and the bank account details for an account that is in fact held by Ohmut. The version in evidence has handwritten amendments crossing out the name "Anoif Pty Ltd" where it originally appeared in the "To" field and in its place is the handwritten annotation "Ohmut". The "Beneficiary details" list "Anoif Pty Ltd", but the version in evidence has handwritten amendments crossing out the name "Anoif Pty Ltd" where it originally appeared and in its place is the handwritten annotation "Ohmut Pty Ltd" instead.
2. That the amount was in fact deposited to Ohmut's bank account is common ground. Ohmut's bank statement records receipt of the $250,000 on 17 January 2017. Prior to the receipt of the $250,000, the account was overdrawn to the sum of $232,003 and the deposit resulted in a credit balance of approximately $17,987.
3. The bank statement taken in conjunction with Mr Page's text message to Mr Baker demonstrates that Mr Page was operating the Ohmut account, that the account was overdrawn and that Mr Page reached out to Mr Baker to get it "fixed". I infer that "OD" is a reference to the account being overdrawn and that Mr Page's reference to "my authority" is indicative that he was operating Ohmut's account and it was over the authorised overdraw limit. It is telling that the exchange does not involve Ms Page. It is further evidence of Mr Page acting as agent, in this case of Ohmut.
4. On 17 January 2017 at 10.57am, Mr Baker forwarded to Mr Page an email that Mr Baker had just sent to Michelle Smith, Senior Business Banking Manager at NAB, which attached the RTGS Transfer report. When forwarding the email to Mr Page, Mr Baker said "as requested". Ms Smith, as mentioned earlier, was the NAB bank employee with responsibility for the accounts held with that bank by Ms Page's companies. In his email to Ms Smith, Mr Baker wrote: "Please find attached transfer (RTGS) confirmation of $250,000 to the Anoif bank account." This is odd given that Mr Baker knew that Anoif One did not have a bank account and it would have been obvious to the NAB that account details were those of Ohmut. At this time, the Page interests were actively pursuing the NAB for additional facilities, including for Ohmut. It is possible that Mr Page's concern for Mr Baker to confirm to the NAB that a deposit was made was in connection with clearing Ohmut's unauthorised debt balance. Why Mr Baker described the transfer as being to an account of Anoif One, when he knew Anoif One did not have a bank account is not explained in the evidence.
5. Both Ms Page and Mr Baker said in evidence that the investment to which the $250,000 was intended to be applied did not proceed. They each gave accounts of what happened after the investment did not proceed. Their respective evidence as to what happened after the funds were transferred into Ohmut's account is thin. Both accounts appear to be reconstructions given that the majority of the funds transferred were applied to discharging the debit balance on Ohmut account at the time the transfer was made. The evidence before me does not permit me to draw a conclusion as to whether this amount, which was ostensibly advanced to Ohmut for a particular investment purpose which purpose was not fulfilled, was the subject of a subsequent arrangement whether by offset or otherwise, or was repaid in whole or in part. But in respect of this payment, I am satisfied that the payment was made to Ohmut's bank account and it was not an advance under the Ohmut/Parkway Facility. In so far as the payments fall within the definition of Secured Moneys under the Ohmut and Parkway Securities, the debt is, to the extent it has not been repaid, secured under those securities.
6. In relation to the payment of $200,000, Ms Page acknowledged that this sum was received into Ohmut's bank account but she said it was "for" Anoif One. Ms Page gave a meandering series of answers on this topic. Her evidence was difficult to follow. Included in her answers was the assertion that Mr Page and Mr Baker identified a property investment opportunity for Anoif One and that Mr Baker said to Mr Page that he would "shoot some money into Ohmut" in case they needed it to pay a holding deposit on behalf of Anoif One. Ms Page said that the investment did not proceed and, or maybe because, on 15 February 2017, she transferred $190,000 of that sum to Yipeeo at Mr Baker's request. The payments were made in two parts, the first was a payment of $100,00, the second payment was for $90,000. Both were paid to CLAH on the same day. The defendants characterise both these payments as repayments of the Ohmut/Parkway Facility.
7. The plaintiffs submit that other than the use of Ohmut's bank account as a conduit, the Anoif Payments have no connection at all with Parkway, Ohmut or the Ohmut/Parkway Facility. Further that neither Ohmut nor Parkway One agreed to borrow or indemnify CLAH in respect of these amounts and Ms Page did not at any time authorise CLAH to debit the amounts to the Ohmut/Parkway Facility account. I reject the plaintiffs' submissions. As I have said, the evidence, as unsatisfactory as it is, demonstrates that these amounts were paid by CLAH to Ohmut. The payments were not made under the Ohmut/Parkway Facility. In so far as the payments fall within the definition of Secured Moneys under the Ohmut and Parkway Securities, the debt is, to the extent it has not been repaid, secured under those securities.
8. Issue 14 is answered in the affirmative. These amounts were wrongly debited to the account of the Ohmut/Parkway Facility. The Anoif Payments were paid to Ohmut and I would infer were repayable on demand. These payments were captured by the definition of Secured Moneys and are secured under the Ohmut/Parkway Securities.

11.10.2 Issue 15 - Were the designated amounts wrongly credited to the Ohmut/Parkway Facility account?

1. The plaintiffs contend that the following repayments between 15 February 2017 and 3 June 2020 were wrongly credited to the Ohmut/Parkway Facility account:

(1) an amount of $100,000 paid on 15 February 2017;

(2) an amount of $90,000 paid on 15 February 2017;

(3) an amount of $120,000 paid on 28 February 2017;

(4) amounts totalling $50,000 paid between 20 December 2019 and 21 February 2020; and

(5) an amount of $33.50 paid on 3 June 2020.

1. These repayments are disputed on the basis that the plaintiffs maintain that Parkway One, Ohmut, Harmat and Ms Page did not make any repayments to CLAH under the Ohmut/Parkway Facility. The reason that the plaintiffs say that these payments were not repayments under the Ohmut/Parkway Facility is that the plaintiffs maintain that the whole of the amount advanced under the Ohmut/Parkway Facility was forgiven under the alleged Trust Investment Agreement. For the reasons I have already given, I have found that the plaintiffs have not established that CLAH forgave $500,000 advanced under the Ohmut/Parkway Facility whether pursuant to the alleged Trust Investment Agreement or otherwise.
2. The defendants have characterised these payments as having been made pursuant to the Ohmut/Parkway Facility and submit that the payments fell within the scope of the Ohmut/Parkway Facility either because CLAH was directed by Mr Page to credit these payments to the Ohmut/Parkway Facility or the credits concerned payments made from Ohmut or on its behalf. The defendants maintain that in about February 2017, Mr Baker repeatedly asked Mr Page for repayments to be made in reduction of the amount due under the Ohmut/Parkway Facility. In the main, the defendants contend that the requests for repayment were made orally. Mr Page denies that Mr Baker made such requests. There is a document that provides some support for the defendants' position. On 20 July 2017, Mr Baker forwarded to Mr Page, an email from Ms Page with the subject line "Friday Payments" in which Ms Page said she was emailing "a reminder regarding Friday payments for tomorrow" requesting payment to Parkway One's account of $10,000. In his email forwarding this to Mr Page, Mr Baker said:

Lemuel see below. Can you phone me to discuss. The point has reached where money now needs to come back in.

1. Mr Page responded the next day, saying "Call me when you are up". Although this email is an isolated instance of a contemporaneous document, it is a reliable indication that Mr Baker expected that the money advanced by CLAH was to be repaid.
2. I will briefly address each of the alleged payments to the extent the evidence permits findings to be made. Even if the defendants established that all of these payments were repayments under the Ohmut/Parkway Facility, the amount repaid is less than the principal advanced, without taking into account any interest accruing under the Ohmut/Parkway Facility on the amount that was advanced under that facility. Given that is the case, I will limit my consideration to whether the evidence establishes that the payments were payments by Ohmut, whether under the Ohmut/Parkway Facility or alternatively repayment of other amounts advanced to Ohmut by CLAH. Given that the plaintiffs deny the payments were made by Ohmut, I will briefly examine what is established on the evidence before me as to whether these payments were made by or on behalf of Ohmut in reduction of debt owed by Ohmut to CLAH, howsoever arising.

11.10.2.1 Amounts of $100,000 and $90,000 paid on 15 February 2017

1. The first payment was made by Pegasus to CLAH on 15 February 2017 of $100,000 and was credited by CLAH to the Ohmut/Parkway Facility account. The plaintiffs submit that this payment has no connection with Parkway One, Ohmut or the Ohmut/Parkway Facility and should not have been credited to the account. Ms Page gave evidence that this payment "wasn't Ohmut to CLAH" because she was "pretty sure it was Pegasus". The defendants contend that CLAH was directed by Mr Page, who they describe as being "in effective control of Pegasus", to credit this payment to the Ohmut/Parkway Facility. Ms Bull is the sole director and shareholder of Pegasus. Ms Bull was not called. Pegasus is one of the two shareholders of Yipeeo, the other being CBD Sydney Investments. Mr Page gave evidence that Pegasus was set up as a company for Ms Bull to acquire her own property developments and that he assisted her in establishing Pegasus. On the whole of the evidence, Pegasus appears to have been an entity through which Mr Page conducted his business affairs during the period he was bankrupt. In this way, it served the equivalent purpose for Mr Page as CBD Sydney Investments served for Mr Baker.
2. The Westpac transaction report for this payment is in evidence - the payment description is as follows: "RTGS HIGH VALUE PAYMENT REF NO 0368904 PEGASUS CORPORATI OHMUT".
3. Also on 15 February 2017, CLAH credited an amount of $90,000 to the Ohmut/Parkway Facility account. The plaintiffs submit that this was a partial repayment of funds which CLAH had paid to Anoif One, which Anoif One had ultimately not required for its investment purposes. Ms Page gave evidence that "the $90,000 was me, Ohmut paying CLAH". Ms Page did not provide any further explanation of the purpose of the payment or why it was made by Ohmut.
4. The Westpac transaction report for this payment is also in evidence. It includes the description: "RTGS HIGH VALUE PAYMENT REF NO 0368029 OHMUT PTY LIMITED OHMUT PTY LTD".
5. The statement of loan account addressed to Parkway One, Ohmut and Harmat dated 15 March 2020 includes each of these payments on 15 February 2017 as a "Customer Repayment". The statement of loan account is essentially a reconstruction which dates from three years after the relevant transaction. I place little weight on it. There is however an internal CLAH email dated 16 February 2017 from a CLAH employee asking Mr Baker whether these repayments should be credited to the Ohmut/Parkway Facility or the Carrabolla Facility:

There is a receipt from Ohmut of $100000 & $90000 on 15-02-2017 in CL Westpac Account.

Should I adjust them against Parkway One or Carrabolla. If not please suggest the loan to adjust it against.

1. For the purpose of Issue 15, I am satisfied that based on the small amount of evidence before me, that the payment of $100,000 on 15 February 2017 was made from Pegasus to CLAH and appears to have been made on behalf of Ohmut. The reference to Pegasus and Ohmut on the payment description suggests that although the payment was made by Pegasus, it was for the benefit of Ohmut. For that reason, it should be applied against debt owing by Ohmut to CLAH. As to the $90,000 payment, that was a payment by Ohmut.
2. In the absence of proof to the existence of a contrary arrangement in relation to these two payments, CLAH is entitled to apply these payments against the debt owing under the Ohmut/Parkway Facility. Indeed, to do so is to the benefit of Ohmut as one of the Borrowers under that facility given that debt owing under that facility is subject to the continuing accrual of interest on the terms of that facility whereas the undocumented loans from CLAH to Ohmut do not include terms requiring the payment of interest.

11.10.2.2 An amount of $120,000 paid on 28 February 2017

1. On 28 February 2017, CLAH credited the sum of $120,000.00 to the Ohmut/Parkway Facility account allegedly as a payment by Shzyi on behalf of Ohmut to CLAH to repay amounts then owing by Ohmut to CLAH.
2. This repayment is Shyzi Repayment (4): see part 10.14.3 of these reasons. The plaintiffs contend that this payment should not have been credited to the Ohmut/Parkway Facility account because it has no connection with Parkway One or Ohmut other than the fact that Shyzi is said to have made the payment on behalf of Ohmut.
3. As addressed in part 10.14.3 of these reasons, notwithstanding that the defendants admit on the pleadings this was a repayment from Shyzi to CLAH (DFACS, [41]), the documentary evidence prepared by the defendants suggests this payment is properly attributable as a repayment under the Ohmut/Parkway Facility. The best evidence available is the Westpac transaction report for this payment which has the description: "Rtgs High Value Payment Ref No 0432749 Ohmut Pty Limited Ohmut Pty Ltd". The transaction report is temporally adjacent to those from 15 February 2017 and the double reference in the description to Ohmut speaks against this being a payment made on behalf of Shyzi. In the absence of reliable proof of the existence of a contrary arrangement in relation to this payment, CLAH is entitled to apply this payment against the debt owing under the Ohmut/Parkway Facility.

11.10.2.3 Amounts totalling $50,000 paid between 20 December 2019 and 21 February 2020

1. CLAH has credited to the Ohmut/Parkway Facility account six repayments totalling $50,000 which were paid to CLAH between 20 December 2019 and 21 February 2020. The payments were payments made towards legal expenses incurred by Zapato in an application in the Supreme Court of New South Wales to terminate the winding up of Parkway One. On 11 December 2019, Zapato was purportedly appointed as the new trustee of the Parkway One Trust in lieu of Parkway One by a Deed of Appointment executed by Mr Baker on behalf of Zapato and Ms Page on behalf of Harmat as the sole unit holder of the Parkway One Trust. As at the date of the purported appointment of Zapato as trustee, Mr Baker was relevantly the sole director, secretary and shareholder of Zapato. The plaintiffs contend that these payments were not repayments of any debt owing under the Ohmut/Parkway Facility and were not authorised to be credited to the Ohmut/Parkway Facility account. The defendants contend that the six payments totalling $50,000 were made from a bank account operated by Ohmut and that CLAH has, accordingly, credited these as repayments under the Ohmut/Parkway Facility.
2. A Westpac transaction list for CLAH's account which appears to have been redacted or produced in a way that only shows the relevant payments and related debits is in evidence. It shows the following transactions on CLAH's account:

WITHDRAWAL-OSKO PAYMENT 2888043 Diamond Conway Trust Account CL 193653 CL 193653

1. Ms Comino asserts in her affidavit that CLAH received these payments which she asserts it "duly applied" to the Ohmut/Parkway Facility. There is no reliable evidence which demonstrates that anyone on behalf of the Borrowers directed that the payments be treated as repayments of debt due under the Ohmut/Parkway Facility. The defendants maintain their claim that these were repayments under the Ohmut/Parkway Facility in their closing submissions. The plaintiffs submit that Mr Page and Ms Page were not cross-examined on these payments and that Mr Baker did not give evidence in relation to them. In light of the fact that the defendants acknowledge that these payments were received by CLAH from Ohmut, Ohmut should have the benefit of these payments against the debt for which it is liable to CLAH, however that debt arises. As I have indicated I am satisfied even without taking into account these payments that the Ohmut/Parkway Facility was not forgiven pursuant to the alleged Trust Investment Agreement. Whether the payments are applied to reducing the debt arising under the Ohmut/Parkway Facility or otherwise will have an impact on the accumulation of interest. It would be to the benefit of the plaintiffs who are liable under the Ohmut/Parkway Facility to apply the payments to reduction of the debt due under that facility.

11.10.2.4 An amount of $33.50 paid on 3 June 2020

1. In February 2020, CLAH debited an amount which it had paid the trust account of JHK Legal to the Ohmut/Parkway Facility. On 3 June 2020, CLAH credited a sum of $33.50 to the Ohmut/Parkway Facility when JHK Legal refunded this amount from its trust account to CLAH.
2. The plaintiffs contend that the payments between CLAH and JHK Legal were not made on behalf of Parkway One, Ohmut or Ohmut/Parkway Facility. The defendants say that CLAH paid the $5,000 to JHK Legal and received the credit from JHK Legal on behalf of Ohmut and accordingly these payments were debited and credited respectively to the Ohmut/Parkway Facility. The defendants contend that Mr Page requested the payment to JHK Legal to be drawn on the Ohmut/Parkway Facility.
3. Based on the limited evidence before me it appears that JHK Legal acted for Zapato, in relation to an interlocutory process in the Parkway One winding up proceeding, at a time when Mr Baker was the sole director and shareholder of Zapato. On 22 May 2020, Chiara Becattini, JHK Legal sent an email to Mr Baker with the subject line "RE: Zapato Pty Ltd. Interlocutory Process. In the matter of Parkway One Pty Ltd. Matter 20200455" informing Mr Baker that JHK Legal had $33.50 in their trust account and requested his bank account details to transfer the surplus funds. In Parkway One Pty Limited (No 2), Zapato was granted leave to appear as an interested party but did not appear: Parkway One Pty Limited (No 2) at [10]. Mr Baker's reply to JHK Legal is not in evidence. Mr Baker forwarded the email from JHK Legal to Ms Comino on 29 May 2020 and indicated that he had provided CLAH's details - he made no reference to Ohmut or Parkway or the Ohmut/Parkway Facility:

See below. I have provided them with the CL Daily bank details so you should see $33.50 appear in our account some time soon.

1. On about 3 June 2020, CLAH received into its bank account a refund from JHK Legal of $33.50, which CLAH credited to the Ohmut/Parkway Facility. This repayment is recorded by CLAH as a credit in Schedule 3 of the Debt Particulars.
2. On the evidence before me, CLAH has not established that the payment to JHK Legal or the refund from JHK Legal were payments to or in favour of Ohmut or Parkway One.

11.10.3 Issue 16 - Did Ohmut or Parkway One owe any money to CLAH as at the date of the appointment of the Ohmut Receivers?

1. The plaintiffs contend that there is no debt owing by Ohmut or Parkway One to CLAH pursuant to the Ohmut/Parkway Facility, or at all: PFASOFC, [95]. I reject the plaintiffs' submission for the reasons I have given in addressing Issues 8 to 15.
2. It is plain that the as at the date of the appointment of the Ohmut Receivers, Ohmut was indebted to CLAH as a result of debt arising under the Ohmut/Parkway Facility, the principal of which had partially but not fully been repaid, and also as a result of other loans made by CLAH to Ohmut which were repayable on demand. Accordingly, Issue 16 is answered yes.

11.11 Issue 17 - Was CLAH's security interest in the property of Parkway One unperfected as at the date of the winding up of Parkway One? If so, did the security interest vest in Parkway One by operation of s 267 of the PPSA?

1. Issue 17 as captured in the Amended Joint List of Issues tends to obscure the bifurcation of the relevant security interests granted under the Parkway GSA which Parkway One executed in two distinct capacities - first, in its own right, and second in its capacity as the corporate trustee of the Parkway One Trust. A security interest in personal property is perfected by effective registration: s 21 PPSA. A registration will be ineffective if and only if there is a defect in the registration within the meaning of ss 164 to 166 of the PPSA.
2. The starting point for the analysis is that Parkway One as grantor conferred security interests in its dual capacities as a body corporate and as a body corporate that is a trustee of a trust. At the time the security interests were granted, Parkway One had an Australian Company Number (ACN) and the Parkway One Trust had an Australian Business Number (ABN). Parkway One did not have an Australian Registered Scheme Number (ARSN).
3. On 19 August 2016, CLAH registered a financing statement in relation to its security interest over Parkway One's assets on the PPSR. The financing statement described the grantor as being Parkway One which was identified by its ACN. CLAH did not separately register its security interest on the PPSR in relation to the grant made by Parkway One as trustee of the Parkway One Trust. The financing statement that was registered made no reference to the ABN of the Parkway One Trust.
4. Section 153 of the PPSA requires a financing statement with respect to security interests to include, relevantly, "the grantor's details as prescribed in the regulations": s 153(1), item 2(c). The relevant regulations are the Personal Property Securities Regulations 2010 (Cth) (PPS Reg). Regulation 5.5(1) of the PPS Reg states that "Schedule 1 sets out matters prescribed for items of the table in subsection 153(1) of the Act". Schedule 1 of the PPS Reg is entitled "Financing statement matters for items of table in subsection 153(1) of Act". Part 1 of Schedule 1 relevantly includes two clauses which are capable of applying in the present circumstances where the grantor is both a body corporate (Sch 1, cl 1.3) and a trustee of a trust with an ABN (Sch 1, cl 1.5). Each of these clauses is structured to include in subclause (1) the circumstances in which that clause applies for the purpose of s 153(1) of the PPSA and a table of the relevant prescribed matters for inclusion in the financing statement.
5. Clause 1.3(1) relevantly provides that cl 1.3 applies if the grantor is a body corporate that:

(1) is a trustee and has an ARSN (cl 1.3(1)(a)); or

(2) is not a trustee of a trust that has an ABN (cl 1.3(1)(b)).

1. Clause 1.5(1) relevantly provides that cl 1.5 applies if the grantor is:

(1) a body corporate that is a trustee of a trust that:

(a) has an ABN; and

(b) does not have an ARSN; or

(2) any other trustee of a trust.

1. Clause 1.3(2) provides that the details mentioned in each item of the table, from the source mentioned for the item, are prescribed for the body corporate mentioned in the item. Under cl 1.3(3), the prescribed details are those details applying to the body corporate with the lowest item number. By the table included in cl 1.3, unless items 1, 2 or 2.5 apply, for a body corporate that has an ACN, its ACN is prescribed.
2. Clause 1.5(2) then states that the details mentioned in each item of the table, from the source mentioned for the item, are prescribed for the trustee mentioned in the item. Under cl 1.5(3)(b), the prescribed details are those details applying to the corporate trustee with the lowest item number. By the table included in cl 1.5, unless item 1 applies, for a trustee that has an ABN, its ABN is prescribed.
3. The plaintiffs submit that the effect of cll 1.5(1) to 1.5(5) is that, where, as here, a grantor is a body corporate that is a trustee of a trust that has an ABN, registration must occur as against the ABN of the trust. The plaintiffs contend that this flows not only from cll 1.5(1) to 1.5(5) but also from such grantor being necessarily excluded from the circumstances in which, under cll 1.3(1) to 1.3(5), registration against the ACN of the company is prescribed. On this basis the plaintiffs contend that the registration lodged on 19 August 2016 is ineffective because it suffers a defect within the scope of s 165(b) of the PPSA being the defect provided for by s 164(1)(b).
4. The plaintiffs contend that the defect in CLAH's financing statement registered on the PPSR against Parkway One on 19 August 2016 is such that CLAH's security interest granted by Parkway One in both its own right and in its capacity as corporate trustee was not perfected for the purposes of s 21 of the PPSA. The plaintiffs contend that the effect of CLAH's security interest not being perfected is that pursuant to s 267(2) of the PPSA, the unperfected security interest vested in Parkway One immediately before the making of the winding up order on 19 August 2019 and accordingly, if CLAH is a creditor of Parkway One (which is denied), then CLAH is an unsecured creditor: PFASOFC, [98]-[104].
5. The plaintiffs rely on two authorities, neither of which aligns with the circumstances presently arising.
6. The plaintiffs first rely on Brereton J's analysis in In the matter of OneSteel Manufacturing Pty Ltd (administrators appointed) [2017] NSWSC 21; 93 NSWLR 611. OneSteel considered a circumstance where the PPSA and the PPS Reg required that a financing statement was to include the grantor's ACN, but the secured party had in fact used the grantor's ABN instead. This was held to be a defect for the purposes of s 164(1)(b). In OneSteel, the grantor had both an ACN and an ABN. The inclusion of only the ABN in the original financing documents created the circumstance that a search on the grantor's ACN alone would not reveal the registrations (see OneSteel at [17]). OneSteel did not concern the circumstance where the corporate grantor was acting in two distinct capacities as is the case here. OneSteel concerned the grant by a company in its own right of security interests in the form of PPS leases within the meaning of s 13 of the PPSA.
7. The plaintiffs also rely on Rohrt, in the matter of Rose Guerin and Partners Pty Ltd (in liq) v Princes Square W24NY Pty Ltd [2021] FCA 483 (Anderson J). In Rohrt, the transaction giving rise to the security interest was a chattel mortgage which made clear that the company purchased the vehicle in its capacity as trustee of a trading trust. The company in its capacity as a trustee was the grantor. Accordingly, the security interest ought to have been registered against the trust's ABN and not the ACN of the company. However, BMW, the chattel mortgagee, in fact registered its security interest using the grantor's (that is, the company's) ACN. BMW ultimately conceded that its registration was defective and Anderson J observed that BMW was correct to do so because the registration was made against the company's ACN rather than the ABN as required by item 2 of cl 1.5 of Sch1 of the PPS Reg: Rohrt at [68].
8. Neither OneSteel or Rohrt concerned the situation where, by virtue of the same transaction, a security interest was created in two different forms of personal property held by the same entity, namely the personal property rights of the company as trustee and the personal property rights of the company in its own right, arising independently of its status as trustee.
9. The defendants accept that CLAH's PPSA security interest insofar as it relates to property owned by the Parkway One Trust was not perfected by registration and vested in Parkway One immediately before Parkway One was placed in liquidation by operation of s 267(2) of the PPSA: DFACS, [76]. However, the defendants submit that the vesting of CLAH's security interest in the property of the Parkway One Trust does not affect the security interest granted by Parkway One in its own right which the defendants submit was perfected by the registration which identified Parkway One by its ACN in accordance with cl 1.3: DFACS, [77].
10. The essential point of difference between the parties' respective positions is as to whether the security interests granted under the Parkway GSA are distinct and independent of each other so that they may be the subject of separate financing statements, each or both of which may be registered. The effect of the plaintiffs' submission, which focusses on the singularity of Parkway One as the entity that is the grantor, is that it was only open to Parkway One to register one financing statement in respect of the security interests it granted under the Parkway GSA. The defendants contend that it was open to CLAH to register its security interest in relation to Parkway One independently of registering its security interest in the Parkway One Trust and that CLAH's failure to register its security interest in the Parkway One Trust does not render the registration of its security interest in Parkway One's own property ineffective.
11. For the reasons which follow, I accept the defendants' submissions on this issue.
12. The effect of the Parkway GSA was that Parkway One was transacting in dual capacities in granting an All PAAP security over two separate pools of collateral - the personal property it held in its own capacity and the personal property that it held as trustee. CLAH was entitled to believe on reasonable grounds that it was or would become a secured party in relation to the collateral of Parkway One in its own right and the collateral of the Parkway One Trust upon execution of the Parkway GSA: see PPSA s 151.
13. Section 164(1) provides that a registration with respect to a security interest that describes "particular collateral" is ineffective because of a defect "if, and only if" there is a seriously misleading defect in any data relating to the registration (other than a defect of a kind prescribed by the regulations), or a defect mentioned in s 165.
14. The registration in issue here is the registration of CLAH's security interest in the "particular collateral" that is Parkway One's own personal property, not the collateral that it holds in its capacity as the trustee of the Parkway One Trust. That security interest which Parkway One granted in its own right exists independently of any security interest that CLAH may have had in the Parkway One Trust prior to that interest vesting in Parkway One by operation of s 267 of the PPSA.
15. The registration of the security interest which Parkway One granted in its own right complied with what was required by the regulations in relation to a security interest given by a corporation in relation to that particular collateral in that it included the corporation's ACN. Subject to ss 164, 165 and 166, it was an effective registration within the meaning of s 163(1) of the PPSA in relation to CLAH's security interest in that particular collateral. Before turning to consider ss 164 and 165, it bears emphasis that CLAH's security interest in Parkway One's personal property held in its own right was discoverable by searching using its ACN without more as a consequence of this registration.
16. The registration of the security interest which Parkway One granted in its own right was not defective in the ways specified by s 164(1) of the PPSA, including as expanded by s 165.
17. The omission of a reference to the security interest granted by Parkway One as the trustee of the Parkway One Trust and the ABN for the trust did not render the security interest registered against Parkway One in its own right seriously misleading within the meaning of s 164(1)(a) of the PPSA. The term "seriously misleading" is not defined in the PPSA. The omission of those details did not result in the registration of the separate security interest in Parkway One's own property not being disclosed upon a search. In fact, to the contrary, the separate registration ensured that the separate security interest would be disclosed on a search: see Future Revelation Ltd v Medica Radiology & Nuclear Medicine Pty Ltd [2013] NSWSC 1741; 283 FLR 122 at [7] (Brereton J).
18. Similarly, the relevant registration was not rendered defective for the reasons identified in ss 165(a) or 165(b) and accordingly was not ineffective under s 164(1)(b) of the PPSA. Section 165(c) is not applicable and no relevant regulations have been prescribed for the purpose of s 165(d). Section 166 is not presently relevant.
19. The circumstances presently arising are readily distinguished from those considered in OneSteel and Rohrt. This is not a case where the secured party seeks to rely on the entry of the wrong details in respect of the particular collateral to perfect the security interest in that particular collateral. CLAH's financing statement with respect to the security interest in Parkway One's own collateral is granted by Parkway One as a body corporate and not as the trustee of the ABN registered Parkway One Trust. Accordingly, the matters to be included in the financing statement are dictated by s 153(1) of the PPSA and item 3 of cl 1.3 of Sch 1 of the PPS Reg. Had CLAH lodged a financing statement in respect of the security interest granted by Parkway One in its capacity as trustee of the ABN registered Parkway One Trust, the details which would have been required to be included in respect of the grantor would have been in accordance with s 153(1) of the PPSA and item 2 of cl 1.5(1)(a) of Sch 1 of the PPS Reg.
20. To construe the statutory registration scheme in this way promotes the statutory purpose of enabling the existence of a security interest in the particular collateral to be searched and ascertained (see Future Revelation at [6]), in that it ensures where an entity has granted security interests in collateral that it holds in two distinct capacities that both interests are searchable and ascertainable if registered. To accept the plaintiffs' construction would mean that it would not be apparent on the face of the register that a corporate trustee of an ABN registered trust had granted a security interest over its own property as well a security interest over property it holds as trustee. Indeed, because a search of the corporate trustee's ACN would return a nil result, it would appear that the corporate trustee had not granted a security interest over its own property even if it had in fact entered into the relevant security agreement in a dual capacity. Accordingly, I reject the plaintiffs' submissions premised on a strict textual analysis of the relevant regulations that is divorced from the purpose of the statutory registration scheme and is inflexible in its operation in relation to the particular collateral which is the subject of the relevant security interest in circumstances where the same grantor concurrently grants a security interest in other collateral in the same transaction.
21. For these reasons, CLAH's security interest in the collateral of Parkway One in its own right was effectively registered and that interest was not unperfected as at the date of the winding up of Parkway One. Accordingly, CLAH's security interest in this particular collateral did not vest in Parkway One by operation of s 267 of the PPSA. The position is however different in relation to the collateral comprised of the trust property. The defendants were correct to concede this point.

11.12 Issue 18 - Does CLAH have a first ranking priority, as a secured lender, to the balance of the proceeds of sale in respect of the Cooks Hill Property, and if so, are the parties to the Receivership Proceeding in an accounting relationship in respect of such proceeds of sale?

1. In the Distribution Proceeding, there are competing claims to funds which have been paid into Court which are the remaining proceeds of sale of the Cooks Hill Property which was property of the Parkway One Trust, to which Mr Scott has been appointed as receiver.
2. CLAH claims that it is entitled to the remaining Cooks Hill Property sale proceeds on the basis that it has a first ranking priority conferred by an equitable mortgage to secure the indebtedness of Parkway One and Ohmut.
3. CLAH contends that the Cooks Hill Property was subject to an equitable mortgage granted by Parkway One as trustee of the Parkway One Trust to CLAH by reason of the Parkway Mortgage which secured the indebtedness of Parkway One and Ohmut as co‑borrowers under the terms of the Ohmut/Parkway Facility. The defendants accept that the Parkway Mortgage is an equitable mortgage because CLAH did not register the mortgage under the provisions of the Real Property Act 1900 (NSW). The Parkway Mortgage is a Transaction Document as defined by the Ohmut/Parkway Facility.
4. CLAH submits that upon the sale of the Cooks Hill Property, CLAH's equitable mortgage converts to an equitable charge over the proceeds of sale of the Cooks Hill Property: Re Murrell; Ex parte Official Trustee in Bankruptcy [1984] FCA 314; (1984) 57 ALR 85 (Smithers J).
5. On the defendants' submission, and consistently with what I have found to be the proper construction of the Shyzi Mortgage which is in relevantly the same terms, in its proper construction the Parkway Mortgage secured the amounts which Ohmut and/or Parkway One are liable to repay to CLAH for any reason because of the relevantly unconstrained definition of Secured Money in the Parkway Mortgage.
6. Harmat contends that CLAH does not have priority to the proceeds of sale of the Cooks Hill Property because there is no underlying indebtedness of Parkway One and Ohmut under the Ohmut/Parkway Facility to which the equitable mortgage attaches. For the reasons I have already given, I do not accept that contention that there is no relevant underlying indebtedness.
7. Harmat next submits that if indebtedness is established, then it will be necessary for accounts to be taken in order to establish the distribution of the sale proceeds as between CLAH and the Ohmut Receivers. Harmat acknowledges that if the defendants establish relevant indebtedness, as is the case, and the quantum of that debt is ascertained, then Harmat does not take issue with the validity of the equitable mortgage. The plaintiffs did not substantively address Issue 18 in their written or oral submissions. The parties do not seek to have the issue in relation to the taking of accounts determined until after they have had an opportunity to consider these reasons.
8. Accordingly, Issue 18 is answered yes - CLAH has a first ranking priority, as a secured lender, to the balance of the Cooks Hill Property sale proceeds.

1. For these reasons, I am satisfied that I should not grant relief under s 418A and the Court's inherent power to declare that CLAH's appointment of the Ohmut Receivers was not valid on the ground that no debt was owed by Ohmut to CLAH as at the date of the purported appointment. The parties will be directed to confer to bring forward short minutes to give effect to these reasons.

12. CLAH'S UNDERLYING CLAIMS AGAINST TALLYWALKER (ISSUES 20 TO 32)

1. The primary relief sought by the plaintiffs is a declaration that the appointment of the Tallywalker Receivers to Tallywalker on 30 July 2020 was invalid on the ground that Tallywalker owed no debt to CLAH as at that date. That relief is sought under ss 418A and 599 of the Act.
2. For the purpose of the relief under s 418A of the Act, I must consider whether the plaintiffs have raised sufficient doubt about the validity of the appointment of the Tallywalker Receivers to shift the burden to the defendants and if so, whether the defendants have demonstrated that the appointment was valid: Action Scaffolding at [7]. The relief provided for under s 599 of the Act is flexible. In the context of these proceedings, the relief sought under s 599 of the Act is analogous to that sought under s 418A of the Act. Accordingly, I adopt the same approach in relation to the relief sought under s 599 of the Act.
3. CLAH purported to appoint the Tallywalker Receivers under the powers conferred upon it by the Tallywalker GSA, described in the s 429(2) notice as the "Security Interest dated 6 April 2017 and registered on [the] PPSR with registration number 201803270034191" between Tallywalker and CLAH over "the whole of the property charged by the Security Interest". The security interest was registered on the PPSR almost a year later on 27 March 2018.
4. CLAH appointed the Tallywalker Receivers by a Deed of Appointment of Receivers and Managers dated 30 July 2020, executed for CLAH by Mr Baker in his capacity as "sole Director/Secretary". The company search confirms Mr Baker held this office as at 30 July 2020. The term "General Security Agreement" in the Deed of Appointment is defined to mean the document I have referred to as the Tallywalker GSA (as amended on 28 August 2018).
5. The basal issue in this part of the proceeding is whether either the Tallywalker GSA in its original form or the Amended Tallywalker GSA, which purportedly amended Schedule 2 of the Tallywalker GSA, were validly executed by and binding on Tallywalker. CLAH's appointment of the Tallywalker Receivers depends on the Tallywalker GSA being validly executed and binding on Tallywalker so as to effectively confer on CLAH the contractual right to appoint receivers.
6. The plaintiffs' contentions in relation to the validity of the appointment of the Tallywalker Receivers are reminiscent in a number of respects to the plaintiffs' challenges to the appointment of the Shyzi Receivers and the Ohmut Receivers. They also raise discrete matters that are unique to this part of the proceeding.
7. As with the challenge to the validity of the appointment of the Shyzi Receivers and the Ohmut Receivers, the plaintiffs submit that the validity of the appointment of the Tallywalker Receivers turns on Tallywalker being indebted to CLAH as at the date of appointment. Much of the evidence led on this part of the claim is directed to making good the claim that there was no relevant indebtedness at the time of the appointment.
8. There are two strands to the plaintiffs' argument. The first is the argument as to the proper construction of the Tallywalker GSA. In essence, the plaintiffs contend that the appointment power was not available to be exercised in circumstances where Tallywalker was, in the plaintiffs' submission, not indebted to CLAH. The second is the plaintiffs' factual contention that there was no debt owed by Tallywalker to CLAH as at the date of the Tallywalker Receivers' appointment. The no debt thesis is the factual premise upon which the plaintiffs rely as the basis for the application of what the plaintiffs maintain is the proper construction of the relevant commercial agreements and by which they contend the appointment of the Tallywalker Receivers was not valid.
9. The defendants' response is also similar to their response to the challenges made as to the appointments of the Shyzi Receivers and the Ohmut Receivers in that they rely on the occurrence of an Event of Default as enlivening the appointment power pursuant to which the Tallywalker Receivers were appointed, and in any event maintain that as a matter of fact Tallywalker was relevantly indebted at the time the appointment was made.
10. The Event of Default on which the defendants rely as enlivening the appointment power which CLAH purported to exercise to appoint the Tallywalker Receivers was the liquidation of Overland. Overland was a Transaction Party under the Tallywalker GSA. Overland went into liquidation on 13 February 2019. The defendants submit that in its proper construction the power of appointment in the Tallywalker GSA was enlivened by the occurrence of an Event of Default and was not predicated on a default in respect of a payment obligation. The defendants further maintain that Tallywalker was in any event relevantly liable for debts owed to CLAH as at the date of the appointment of the Tallywalker Receivers under the suite of commercial agreements that were in place. That being so, the defendants submit that the construction argument goes nowhere, even if the plaintiffs' preferred construction is correct, which is denied by the defendants.
11. The plaintiffs' argument as to the validity of the Tallywalker GSA and the Amended Tallywalker GSA is an argument that is not mirrored in the plaintiffs' challenge to the appointments of the Shyzi Receivers and the Ohmut Receivers.
12. The plaintiffs submit that CLAH's purported exercise of an appointment power conferred by transaction documents that were not themselves validly executed is itself invalid. On this basis, the plaintiffs submit that the appointment of the Tallywalker Receivers should be declared to be invalid under ss 418A or 599 of the Act.
13. The plaintiffs' challenge to the validity of the execution of the Tallywalker facilities and securities is multi-pronged. By way of broad overview, the plaintiffs contend that Tallywalker is not bound by the Tallywalker facilities and securities because the documents were not executed for Tallywalker by persons who were respectively a director or secretary of Tallywalker at the date on which the relevant agreement is alleged to have been executed. In so far as the execution blocks on the impugned documents state that the document was executed in accordance with s 127(1) of the Act, the plaintiffs contend that CLAH is not entitled to rely on the assumptions in ss 128 and 129(5) as to valid execution of the relevant documents in circumstances where CLAH is fixed with Mr Baker's knowledge that the statutory assumptions are incorrect. Finally, in relation to whether Tallywalker is bound by the purported execution of the relevant documents vis‑à‑vis CLAH, the plaintiffs contend that in circumstances where CLAH is not entitled to rely on the assumptions in ss 128 and 129(5), the documents were not executed in accordance with Tallywalker's constitution and accordingly, Tallywalker is not bound.
14. In addition to the plaintiffs' contentions as to the validity of the execution of the Tallywalker facilities and securities by Tallywalker, the plaintiffs raise a separate issue as to the validity of CLAH's execution of documents on 1 July 2017. This issue emerged as a result of evidence given by Mr Baker that CLAH executed at least one of the documents that bears the date of 6 April 2017 on a later date, 1 July 2017. The plaintiffs submit that whatever the precise date on which the documents were executed, it is clear that the "6 April 2017" documents were executed at the same time as each other. If that date was as Mr Baker said, 1 July 2017, and not 6 April 2017, then an issue arises as to whether CLAH's execution of the documents is valid. Mr Watson and Mr Mitropoulos signed the relevant documents for CLAH, purportedly as directors of CLAH. However, each of these gentlemen ceased to be directors on 30 June 2017, the day before the documents were executed on Mr Baker's account.
15. Issue 26A on the Amended Joint List of Issues poses the question of whether the Tallywalker facility agreements were validly entered into. The expression "Tallywalker facility agreements" comprehends the suite of commercial documents comprising loan agreements, general security agreements, guarantees and related documents purportedly executed by CLAH and either or both of Overland and Tallywalker in 2017 and 2018. Issues 22 and 26 are in part related in so far as they supply the basis for the alleged defect in the execution of the relevant documents based on the challenge to the validity of the appointments of Ms Comino and Ms Pickstone as directors of Tallywalker at various points in time. These issues also encapsulated the defendants' contention that the plaintiffs do not have standing to challenge the relevant suite of agreements because neither Harmat nor Ms Page are party to any of the agreements. In closing submissions, the defendants confirmed that they did not press the issue that they had raised in relation to standing with respect to the claim for relief under s 418A. I will address these issues first.
16. In the event that the plaintiffs succeed on these issues, they will be entitled to the relief sought under ss 418A and 599 of the Act in relation to the appointment of the Tallywalker Receivers. If that is the case, it will not be necessary to determine the myriad of remaining issues identified by the parties. Notwithstanding that I have carefully analysed the wide compass of evidence led on these remaining issues, I have concluded that it would be inappropriate to make findings on the maelstrom of allegations and counter-allegations of dishonest dealings and the series of allegations of competing oral agreements. That is, in circumstances where those findings may have consequences beyond the parameters of these proceedings and do not ultimately affect whether relief should be granted in these proceedings.
17. The second group of issues concerns the competing construction arguments, the related characterisation of the funds paid by CLAH to Tallywalker and the occurrence of the Event of Default in relation to Overland. These issues are the subject of Issues 30 to 31 in the Amended Joint List of Issues. If it is necessary to do so, I will address these issues second.
18. An essential part of the plaintiffs' no debt thesis is the plaintiffs' contention that funds advanced by CLAH were not in truth debt but rather instalment payments for an investment by CLAH in Tallywalker, which investment instalments were not repayable and were not secured. The plaintiffs' position is predicated on the existence of the alleged Tallywalker Investment Agreement: PFASOFC [106]. The plaintiffs allege the Tallywalker Investment Agreement was made in October 2016 between Mr Brooks (on behalf of Tallywalker) and Mr Baker (on behalf of CLAH). The alleged Tallywalker Investment Agreement was not reduced to writing or documented.
19. The ASIC records in evidence for Tallywalker show that as at October 2016, the shareholding in Tallywalker was distributed as follows: Mr Wilson held one share and Mr Brooks held one share. The ASIC record further shows that on 27 March 2017, the share structure of Tallywalker was subsequently amended to increase the total number of shares to 2,000 shares which were distributed as follows: Mr Wilson and Mr Brooks were no longer shareholders, CLAH was issued 500 shares, Pegasus was issued 250 shares, Harmat was issued 250 shares and Mango Cobar was issued 1,000 shares. The ASIC record subsequently shows that in around 23 June 2017 the share structure of Tallywalker was further amended to increase the total number of shares to 3,000 shares which were distributed as follows: CLAH held 1,000 shares, Pegasus held 500 shares, Harmat held 500 shares and Mango Cobar maintained its holding of 1,000 shares. As at the date of the company search in evidence, Mango Cobar and CLAH maintained their holdings of 1,000 shares each, Harmat held 1,000 shares and Pegasus was no longer a shareholder.
20. The defendants deny that CLAH entered the alleged Tallywalker Investment Agreement. The defendants contend that the true position is that an oral agreement was reached in or about late 2016 between CLAH, Harmat and Mr Brooks and that it was pursuant to this agreement that CLAH agreed to advance $1 million by way of investment. Though, that investment was in a new business, the purpose of which was to refurbish drilling rigs through an entity in which CLAH would take a 25% interest. The relevant entity ultimately deployed for this purpose was the company that became known as Overland. The defendants maintain that the Drilling Rig Venture involved Overland purchasing and refurbishing second-hand blast drilling rigs which would then be hired or leased out to mining companies. As I have mentioned, Overland is in liquidation and is not a party to these proceedings.
21. The ownership of Overland is in dispute, as is the purpose for which it was incorporated. The alleged stakeholders in Overland on various versions of events include Mr Baker (through CLAH), Ms Page (through Harmat), Mr Page (through Pegasus), Mr Brooks (through Mango Cobar) and Dr Munro (personally or perhaps through DMXS). The relevance of these issues in this proceeding is limited. The competing submissions concerning the arrangements in relation to, and the affairs of, Overland are directed to providing necessary context from which to infer the true position in relation to dealings between CLAH and Tallywalker.
22. This part of the plaintiffs' case is similar to the plaintiffs' argument based on the alleged Trust Investment Agreement which I have addressed in considering Issues 10 to 13 earlier in these reasons. The competing versions of the alleged agreements or arrangements between CLAH and Tallywalker, amongst others, were not reduced to writing.
23. It is important to remember that no part of the relief sought in this proceeding is directed to obtaining relief in relation to the true position regarding the distribution of shares in Overland at various points in time. Likewise, no part of the relief in these proceedings is directed to setting aside or enforcing the facility agreement between CLAH and Overland before that agreement was restated and incorporated into the Amended Tallywalker Facility.
24. I will only address the evidence relied on in support of the competing characterisations of the dealings between the parties and the alleged oral agreements to the extent that it is necessary for determining whether the appointment of the Tallywalker Receivers was valid. The oral agreements are not the source of the contractual power to appoint receivers to Tallywalker. There is no allegation to that effect. Such an allegation, if made, would have been problematic.
25. If it is necessary to determine the efficacy of the alleged oral agreements, I will apply the principles which I have earlier identified as to the approach to fact‑finding in relation to oral contracts. I remind myself of the principles set out by the High Court in Equuscorp at [31]‑[41] to which I have earlier referred, in particular that oral evidence of an alleged consensus is required to be "sufficiently certain to admit of enforcement" and "definite about who agreed what, with whom" (at [37]). I also bear steadily in mind that the relief which is the object of this part of the proceedings is essentially directed to the validity of the appointment of the Tallywalker Receivers. It is only relevant to consider the competing alleged oral agreements to the extent that it is necessary to determine the challenge to the appointment of the Tallywalker Receivers.
26. The dispute as to the alleged Tallywalker Investment Agreement, the dealings surrounding the Drilling Rig Venture, and the context in which the Tallywalker Facility is to be construed is the subject of Issues 20 to 21 of the Amended Joint List of Issues. I will address these issues third to the extent it is necessary to do so, having regard to my findings in relation to the validity of the agreements and if valid, the proper construction of the agreements.
27. Another facet of the plaintiffs' no debt thesis is the plaintiffs' contention that the relevant debt was forgiven pursuant to another alleged oral agreement made in or about February 2019 between CLAH and Dr Munro, the so‑called Juice Bar Agreement, the making of which is denied by the defendants. The plaintiffs contend that the Juice Bar Agreement included terms by which CLAH forgave its loans to Tallywalker and Overland. The contention that CLAH forgave debts by way of an oral agreement that was part of a broader arrangement involving Dr Munro is reminiscent of the plaintiffs' claims that debts due from Mr Baker to Dr Munro's company DMXS were to be offset against debt owed by Ms Page's companies to CLAH which I have addressed in considering Issue 6 earlier in these reasons. The plaintiffs' contention that debt was forgiven as part of the consideration for an investment arrangement is reminiscent of the alleged Trust Investment Agreement which I have addressed in considering Issues 10 to 13 earlier in these reasons. In the present context the investment is alleged to have been made directly by CLAH and not by CBD Sydney Investments.
28. The Juice Bar Agreement is alleged to have been made orally at a meeting at a juice bar in Martin Place, Sydney, at which Mr Baker, Mr Page and Dr Munro were present. The alleged Juice Bar Agreement was not documented. As mentioned, the same difficulties in relation to fact‑finding that permeated the determination of the factual issues arising in relation to the claims against Shyzi and Ohmut arise in relation to the Tallywalker claims. As with the other alleged oral agreements to which I have referred, this alleged oral agreement is not claimed to be the source of the contractual right for CLAH to be able to appoint receivers to Tallywalker. I will address it if I find that the Tallywalker GSA and the Amended Tallywalker GSA are valid. In that case it will be relevant to determine whether CLAH forgave the debts as part of the so-called Juice Bar Agreement. If that proves necessary, I will approach the fact-finding task by reference to the principles I have identified earlier in these reasons in relation to making findings of fact as to the existence of an oral agreement. As with the other alleged oral agreements to which I have referred above, I will only consider the competing alleged oral agreements to the extent that it is necessary to determine the challenge to the appointment of the Tallywalker Receivers.
29. The dispute in relation to the alleged forgiveness of any debt for which Tallywalker was liable and the so-called Juice Bar Agreement is the subject of Issues 27 and 28 of the parties' Amended Joint List of issues. Also raised in Issue 28 is the defendants' contention that the plaintiffs have no standing to complain about the alleged Juice Bar Agreement and as to the relevance of the alleged agreement in relation to the relief sought in this proceeding. I will address these issues, to the extent it is necessary to do so, fourth.
30. The remaining four issues identified in the Amended Joint List of Issues, Issues 23, 24, 25 and 29, raise a miscellany of allegations about the affairs of Tallywalker. I will address these issues if it is necessary to do so in the final part of this section of my reasons.
31. Consistently with the parties' approach to the claims against Shyzi and Ohmut, if it is necessary to consider the remaining discrete issues as to whether the parties are in an accounting relationship, I will do so after the parties have had an opportunity to consider these reasons.
32. Before turning to consider the issues raised in this part of the proceeding, I will first address the relevant commercial agreements that are in issue and briefly introduce the other commercial agreements referred to in the evidence. I will then begin as I have said with a consideration of the plaintiffs' challenge to the validity of the relevant documents.

1. Earlier in these reasons, I have briefly outlined the facilities and security documents relevant to CLAH's claims against Tallywalker (see part 1.1.3). There are an array of commercial agreements which are relevant to CLAH's claims against Tallywalker.
2. As with the other parts of the proceedings, there was little consistency in the way in which the parties referred to the various agreements in their pleadings and submissions and in the evidence. That served to compound the obfuscation that characterised Mr Baker's evidence. The evidence given in relation to the agreements by the other witnesses called by the defendants was superficial and lacking in detail. Ms Comino's evidence was, like much of her evidence, a reconstruction based on what was on the face of a document. Her evidence about executing these documents was not supported by genuine recollection. Her evidence was directed to what she would have done and was comprised of ex post facto justification as to why she would have done what she now thought she did. In a letter sent by the plaintiffs' legal representative Mr Phillips to Diamond Conway dated 27 August 2020, it was said, presumably on instructions, that Dr Munro, Mr Page and Mr Brooks all denied any contemporaneous knowledge of the loan and security documents purported to have been executed by Tallywalker in favour of CLAH. With the exception of Dr Munro, none of the plaintiffs' witnesses were asked about the state of their knowledge of the Tallywalker facilities and securities before the appointment of the Tallywalker Receivers. Dr Munro denied any knowledge of the agreements, including during the period when he was a director of Tallywalker. Suffice to say, the legitimacy of the documents is hotly contested.
3. While the plaintiffs raise in their Originating Process the specific ground of challenge that Tallywalker was not indebted to CLAH as at the date of appointment, the Court's power to make a declaration as to the validity of the appointment under s 418A extends beyond the ground specified in the application and may be made on some other ground: s 418A(2).
4. As the evidence unfolded, the focal point was on whether the relevant agreements conferring the power of appointment on CLAH were validly executed. If not, CLAH did not have power to appoint the Tallywalker Receivers. If the documents were validly executed, then the list of further issues raised by the parties arise for determination.
5. The context in which the relevant agreements are said to have been entered into underscores the questions which arise about the legitimacy of the documents. First, all of the documents in question are alleged to have been executed for the respective corporate parties on both sides of the transactions by individuals closely connected with Mr Baker or by Mr Baker himself. The relevant people who purported to execute the various documents on behalf of Tallywalker, the validity of which is challenged, were Ms Comino (Mr Baker's sister and his subordinate at CLAH) and Ms Pickstone (Mr Baker's domestic partner). Second, none of the documents are executed or witnessed by any of the persons aligned with the plaintiffs' interests in these proceedings including Ms Page, Mr Page, Mr Brooks or Dr Munro notwithstanding that these people were variously involved to different degrees and at different points in time in the affairs of Tallywalker and Overland. Further, there is no evidence that copies of the commercial agreements were provided to any of them proximate to the time when they are alleged to have been executed. Third, the timing of the purported execution of the first of the relevant documents coincides on the face of the document with Tallywalker coming under the control of Ms Comino, and through her, Mr Baker, and is later in time than when the alleged advances under the relevant facility were first made. Fourth, the timing of these documents is relatively proximate to the end of Mr Baker's bankruptcy and CLAH converting to a proprietary company. Mr Baker then took over as sole director about six months thereafter.
6. The transactions in issue fall into two categories - facility agreements and related general security agreements. The following description of the effect of the various facility agreements and general security agreements assumes that the agreements are valid pending determination of that issue below.
7. Unlike the transaction documents which inform the claims against Shyzi and Ohmut, which are relevantly each in the same terms as each other with only minor variations, the transaction documents which are relevant to the defendants' claims against Tallywalker vary in some material respects from the Carrabolla Documents and the Ohmut/Parkway Documents. As well as there being some variation in some of the substantive terms of the relevant facility agreements and general security agreements, there is a structural difference in the overarching security arrangements which is relevant to the claims against Tallywalker. In relation to the claims against Shyzi and Ohmut, CLAH has the benefit of associated mortgages of real property which formed part of the overarching security arrangements, whereas there are no real property mortgages which form part of the suite of transaction documents that are relevant to the appointment of the Tallywalker Receivers. That being so, the proper construction of the Tallywalker GSA is not informed by the interaction between the definition of the term "Secured Money" in the relevant facilities and general security agreements on the one hand and any related mortgages executed as part of the same overarching transaction and caught by the related definitions of Transaction Party and Transaction Document. There are no related real property mortgages to consider in construing the Tallywalker transaction documents.
8. This is a substantive difference between the securities which are relevant to the appointment of the Shyzi Receivers and the Ohmut Receivers when compared to the securities relevant to the appointment of the Tallywalker Receivers, even though when viewed in isolation and allowing for mutatis mutandis variation, the Overland and Tallywalker GSAs are based on the same template as the Shyzi, Ohmut and Parkway One GSAs. The definition of Secured Money in the Overland and Tallywalker GSAs is worded differently to that in the Shyzi, Ohmut and Parkway One GSAs, but is similarly constrained by the phrase "under or in connection with a Transaction Document" (cl 1.1(39)). However, unlike the Shyzi, Ohmut and Parkway One GSAs, the different context in which the Overland and Tallywalker GSAs were executed means that the definition of Transaction Document in those agreements does not operate to pick up any related mortgages because there are no related mortgages. Thus, unlike the circumstances pertaining to the Shyzi, Ohmut and Parkway One GSAs which pick up the broader definition of Secured Money in the related mortgages by means of the definition of Transaction Documents, the fact that there is no related mortgage with a broader definition of Secured Money means that the definition of Secured Money in the Overland and Tallywalker GSAs is not amplified in the same way as in the Shyzi, Ohmut and Parkway One GSAs. The source of the broader definition in the Tallywalker transactions is the Tallywalker Facility itself. In the Tallywalker Facility, the defined term "Moneys Secured" extends beyond debt arising under the facility itself. The Amended Tallywalker Facility operated to vary the commercial terms of the Tallywalker Facility and the Overland Facility by substituting the Amended Tallywalker Facility in their place. The Amended Tallywalker Facility uses the definition "Secured Money" constrained by the phrase "under or in connection with a Transaction Document" in place of the broader definition "Moneys Secured" in the Tallywalker Facility. This is addressed further below.
9. The second point of distinction when considering the Overland and Tallywalker transactions is that unlike the Carrabolla Documents and the Ohmut/Parkway Documents, these transactions fall to be considered by reference to successive iterations of the documented arrangements between the respective parties and in circumstances where there is controversy as to whether the execution of the various documents was by a person with authority to bind the company to whom the receivers were appointed.
10. Against that background, I will briefly recap the transaction documents that are presently relevant, noting that the following summary is based on what appears on the face of the documents, the valid execution of which is disputed, and which is subject to determination of whether the documents were in fact validly executed and whether they were executed on the date shown on the face of the documents. Based on what appears on the face of the documents, the relevant transaction documents may be grouped in a preliminary way as follows:

(1) Transaction documents which on their face involve CLAH and Overland as parties, but not Tallywalker, each bearing the date 8 February 2017:

(a) the Overland Facility; and

(b) the Overland GSA;

(2) Transaction documents which as a suite of documents ostensibly involve CLAH, Tallywalker and Overland as parties:

(a) each bearing the date of 6 April 2017 on its face:

(i) the Tallywalker Facility;

(ii) the Tallywalker GSA;

(iii) the Overland Guarantee;

(iv) the Tallywalker Guarantee; and

(v) the Tallywalker Agency Agreement;

(b) bearing the date 27 March 2018, the Amended Tallywalker Facility;

(c) each bearing the date 28 August 2018:

(i) the Further Amended Tallywalker Facility; and

(ii) the Amended Tallywalker GSA;

(3) Transaction documents which on their face involve Tallywalker and Overland as parties, but not CLAH bearing the date 29 October 2018, namely the Overland/Tallywalker GSA; and

(4) Transaction documents which on their face involve Tallywalker, Overland and DMXS as parties, but not CLAH, each bearing the date 19 November 2018:

(a) the DMXS Deed of Loan; and

(b) the DMXS GSA.

1. I will now provide some more detail in relation to each grouping of the documents outlined above.

12.2.1 Transaction documents which on their face involve CLAH and Overland as parties but not Tallywalker, each bearing the date of 8 February 2017

1. The following documents, each bearing a date of 8 February 2017, record transactions which on their face involve Overland as a party but not Tallywalker. It will be recalled that Overland is not a party to the proceedings. Overland was placed in liquidation on 13 February 2019 in circumstances that I will come to below.
2. First, the Overland Facility dated 8 February 2017 was executed by Ms Comino in her capacity as sole director and company secretary of Overland (the Borrower), Mr Watson in his capacity as director and company secretary of CLAH (the Lender) and Mr Mitropoulos in his capacity as a director of CLAH. The plaintiffs do not dispute the validity of the Overland Facility, however they do contend that the Amended Tallywalker Facility, which purports to vary the Overland Facility, was not validly executed. The Overland Facility provided for a loan amount to a maximum of $1 million and that Overland had to repay the loan amount to CLAH by instalments or by a lump sum repayment on a date falling no more than three years from the date of the agreement or as directed from time to time by CLAH. Overland was required to provide Security as defined in the Overland Facility. The Overland Facility is alleged to have also been replaced by the Amended Tallywalker Facility dated 27 March 2018. The Amended Tallywalker Facility combined and restated the separate facilities comprised of the Overland Facility and the Tallywalker Facility which are alleged to have been entered into at an earlier date.
3. Second, the Overland GSA dated 8 February 2017 was executed by Ms Comino in her capacity as sole director and company secretary of Overland (as Grantor), Mr Watson in his capacity as director and company secretary of CLAH (as Secured Party) and Mr Mitropoulos in his capacity of director of CLAH. The Overland GSA was not registered on the PPSA until 27 March 2018. It was at risk of vesting (becoming void) if a declaration of insolvency was made in the six months thereafter, that is, at any time up to and including 27 September 2018.
4. The plaintiffs do not dispute the validity of the Overland GSA. Pursuant to the Overland GSA, Overland granted to CLAH a PPSA Security Interest over all PPSA Personal Property (as defined) and a fixed charge over all Other Property (as defined) to secure payment of amongst other things the Secured Money (as defined). The definition of Secured Money in cl 1.1(39) in the Overland GSA includes "all money that each Transaction Party (whether alone or with another person) is or at any time may become actually or contingently liable to pay to or for the account of CLAH (whether alone or with another person) for any reason under or in connection with a Transaction Document". Overland relevantly falls within the definition of Transaction Party, which means the Grantor and each other person who gives a Collateral Security (cl 1.1(44)).

12.2.2 Earliest transactions documents which as a suite of documents ostensibly involve CLAH, Tallywalker and Overland, each bearing the date of 6 April 2017 on its face

1. The following documents, each bearing the date of 6 April 2017, record transactions which on their face involve CLAH and Tallywalker or CLAH and Overland or all three of them.
2. First, the Tallywalker Facility on its face is dated 6 April 2017 but on Mr Baker's evidence was executed on 1 July 2017, some three months after the date which it bears. On its face the document is executed for Tallywalker (the Borrower) by Ms Comino ostensibly in her capacity as sole director and company secretary and for CLAH (the Lender) by Mr Watson in his capacity as director and company secretary and Mr Mitropoulos in his capacity of director.
3. Mr Baker gave evidence that the Tallywalker Facility was executed on 1 July 2017 and that the date shown on the document of 6 April 2017 was the date on which he drafted the document but was not the date on which it was executed. Included in the execution block for Tallywalker is the representation that the document has been executed "in accordance with section 127 of the [Act]".
4. The plaintiffs contend that this document was not validly executed. Further, that CLAH is precluded from relying on the assumptions under ss 129(2) and 129(5) of the Act. The plaintiffs submit that through Mr Baker, CLAH knew that the Tallywalker Facility was executed on 1 July 2017, and that Ms Comino was not a director of Tallywalker at the date on which the document was executed. Mr Baker concedes that the Tallywalker Facility was not executed until 1 July 2017.
5. The relevant sections of the Act including ss 127 and 129 are addressed below.
6. If the document was executed at a time when Ms Comino was a director of Tallywalker, and was not executed in accordance with s 127 of the Act, then the issue arises as to whether she had authority under the Tallywalker constitution to execute the loan document as a purportedly sole director. I say purportedly because there is an issue as to whether Mr Brooks was a director at this time as well, having purportedly been appointed on 12 March 2017.
7. Putting the arguments as to validity to one side temporarily, the import of the Tallywalker Facility was relevantly as follows.
8. The recitals to the Tallywalker Facility acknowledge that CLAH had, as at the date of the agreement, lent an aggregate amount of $813,479.97 to Tallywalker and agreed to lend further amounts to Tallywalker, resulting in a total Loan Amount of $4,000,000.
9. The recitals also acknowledge that the facility was for the purpose of providing operating capital to Tallywalker. Tallywalker had to repay the Loan Amount to CLAH by instalments or by a lump sum repayment on a date falling no more than three years from the date of the agreement or as directed from time to time by CLAH. Tallywalker was required to provide Security as defined under the Tallywalker Facility (cl 6.1). The corresponding security is the Tallywalker GSA which is addressed below.
10. As mentioned, the Tallywalker Facility together with the Overland Facility is alleged to have also been restated and replaced by the Amended Tallywalker Facility which bears the date of 27 March 2018.
11. Second, the Tallywalker GSA which bears the date of 6 April 2017 was executed for Tallywalker (the Grantor) by Ms Comino ostensibly in her capacity as sole director and company secretary and for CLAH (the Secured Party) by Mr Watson ostensibly in his capacity as a director and company secretary and Mr Mitropoulos ostensibly in his capacity as a director.
12. Although Mr Baker was not questioned about the timing of the execution of the Tallywalker GSA, I infer based on the interconnectedness of the terms of the Tallywalker GSA and the Tallywalker Facility and the commonality of the persons who executed the documents for each of the parties to these documents that the two documents which were both dated in handwriting with the date 6 April 2017 were executed together on the same date. Mr Baker was emphatic in his evidence that the Tallywalker Facility was executed on 1 July 2017. I accept his evidence on this point. I infer that the Tallywalker GSA was also executed on 1 July 2017.
13. As I mentioned, the security interest granted under the Tallywalker GSA was not registered on the PPSR until almost a year later on 27 March 2018, at the same time as the Overland GSA was registered on the PPSR. The vesting period in respect of this security interest also expired on 27 September 2018.
14. The plaintiffs contend that the Tallywalker GSA was not validly executed by Tallywalker in the same way and for the same reasons as they submit that the Tallywalker Facility was not validly executed. Likewise, the plaintiffs submit that CLAH is precluded from relying on the statutory assumptions in ss 129(2) and 129(5) of the Act based on CLAH's knowledge at the time of execution of the Tallywalker GSA that Ms Comino was not a director of Tallywalker.
15. Subject to the Tallywalker GSA being properly executed and valid, the effect of the Tallywalker GSA is relevantly the same as the Overland GSA. The terms of the Tallywalker GSA essentially mirror the terms of the Overland GSA. CLAH relies on the Tallywalker GSA, as amended, as the source of the power by which it purported to appoint the Tallywalker Receivers.
16. Third, the Overland Guarantee bearing the date of 6 April 2017 was executed by Ms Comino ostensibly in her capacity as sole director and company secretary of each of Overland (as Guarantor) and Tallywalker (as Borrower) and by Mr Watson and Mr Mitropoulos ostensibly in their capacity as directors and in Mr Watson's case, also as company secretary, of CLAH (as Beneficiary). The plaintiffs do not expressly dispute the valid execution of the Overland Guarantee. The plaintiffs generally contend that Ms Comino was not a director of Tallywalker as at the date the document was in fact executed and that CLAH is not entitled to rely on the assumption under s 129(2) that Ms Comino was validly appointed based on the public record or the assumption under 129(5) as to the due execution of the document.
17. Based on Mr Baker's evidence and the fact that the Overland Guarantee forms part of a suite of documents that were likely executed at the same time, I infer that the Overland Guarantee was in fact executed on 1 July 2017.
18. Fourth, the Tallywalker Guarantee bearing the date of 6 April 2017 was executed by Ms Comino ostensibly as sole director and company secretary of each of Tallywalker (as Guarantor) and Overland (as Borrower) and by Mr Watson and Mr Mitropoulos ostensibly as directors and in Mr Watson's case, also as company secretary of CLAH (as Beneficiary). Similar to the plaintiffs' approach to the Overland Guarantee, the plaintiffs do not expressly dispute that the Tallywalker Guarantee was validly executed, except to the extent that the plaintiffs generally contend that Ms Comino was not a director of Tallywalker as at the date the document was in fact signed and that CLAH is not entitled to rely on the s 129(2) assumption that Ms Comino was validly appointed.
19. As with the Overland Guarantee, based on Mr Baker's evidence and the fact that the Tallywalker Guarantee forms part of a suite of documents that were likely executed at the same time, I infer that the Tallywalker Guarantee was in fact executed on 1 July 2017.
20. Fifth, I make the same findings as to the date on which the Tallywalker Agency Agreement was in fact executed notwithstanding it bears the date of 6 April 2017 on its face. The Tallywalker Agency Agreement appointed CLAH as the agent and representative of Tallywalker for four transactions in relation to the purchase of assets from Botswana and the transportation and importation of those assets to Australia. The plaintiffs' position in relation to this document mirrors their stance in relation to the validity of the execution of the Overland Guarantee and the Tallywalker Guarantee. The plaintiffs do not expressly dispute that the Tallywalker Agency Agreement was validly executed, except to the extent that the plaintiffs generally contend that Ms Comino was not a director of Tallywalker as at the date the document was in fact executed and that in light of its knowledge through Mr Baker, CLAH was not entitled to rely on the s 129(2) assumption that Ms Comino was validly appointed.

12.2.3 Later transaction document which on its face has CLAH, Tallywalker and Overland as parties, and bears the date 27 March 2018

1. The Amended Tallywalker Facility bears the date of 27 March 2018, and records on its face a transaction which involves CLAH, Tallywalker and Overland as parties. The date shown on the face of this document is the same date as CLAH registered the security interests it claims were granted to it under the Overland GSA and the Tallywalker GSA. It became apparent during Mr Baker's evidence that the description of the date on the face of this document as the date on which the document was made was not the date on which the document was signed. This document was signed much later - it was, on Mr Baker's account, in the process of being prepared as at 27 September 2018, the date on which the vesting period for each of the Overland GSA and the Tallywalker GSA ended. I address the evidence and make findings about the date on which this document was in fact signed in part 12.4 below.
2. The Amended Tallywalker Facility was signed by Ms Pickstone purportedly in her capacity as sole director of Overland and Tallywalker (each a Borrower and together the Borrowers) and Mr Baker in his capacity as sole director of CLAH (the Financier). Included in the execution block for Tallywalker is the representation that the document has been executed by Ms Pickstone in her purported capacity as "sole director" and allegedly "in accordance with section 127 of the [Act]". The Amended Tallywalker Facility also describes each party named in Schedule 2 as a guarantor as being a party to the agreement. No guarantors are relevantly defined in Schedule 2.
3. The plaintiffs contend that the Amended Tallywalker Facility was not validly executed so as to bind Tallywalker for a number of reasons. First, the plaintiffs submit that the document was not executed in accordance with s 127(1) of the Act because Ms Pickstone was not, at any time, a company secretary of Tallywalker and therefore the conditions in s 127(1) were not engaged. Second, CLAH through Mr Baker knew that and so is precluded from relying on the assumption in s 129(5) of the Act by s 128(4). Third, if the document was executed at a time when Ms Pickstone was in fact a director of Tallywalker, it was not executed in accordance with s 127(1) of the Act because she was not the company secretary and she did not have authority under the Tallywalker constitution to execute the loan document as a purportedly sole director. I say purportedly for two reasons. First, the evidence does not support the conclusion that Ms Pickstone was appointed in accordance with the provisions of the Tallywalker constitution and secondly because there is an issue as to whether Ms Pickstone was a sole director given that Mr Brooks appears to have been appointed as a director on 12 March 2017 in accordance with the requirements of the Tallywalker constitution. Fourth, the plaintiffs further contend that the Amended Tallywalker Facility was not executed on the date the document bears on its face, but at a later date after 27 September 2018 at which time Ms Pickstone had ceased to be a director of Tallywalker. As I have mentioned above, Mr Baker effectively conceded that this document was backdated, although he disliked that description, preferring to describe the date shown on the face of the document by the euphemism of the document date being an "effective date". This evidence is addressed in part 12.4 below.
4. Putting the issue of the validity of the Amended Tallywalker Facility to one side temporarily, the salient features of the Amended Tallywalker Facility may be summarised as follows.
5. Recital C of the Amended Tallywalker Facility states that "at the request of the Borrowers, the Financier agrees to vary the commercial terms of [the Overland Facility and the Tallywalker Facility] namely by making further advances". Recital D states that the parties agreed to "give effect to the transactions set out in Recital C by entering into this document as a substitute to the [Tallywalker Facility] and the [Overland Facility]." The Amended Tallywalker Agreement included an acknowledgement of prior debt as at the date of the agreement in the sum of $112,781.28 under the Overland Facility and $2,188,101.95 under the Tallywalker Facility (cl 1.6). The Facility Limit, which was inclusive of the outstanding prior debt, was $5,000,000. The Expiry Date was defined to be 6 April 2020. On the Expiry Date, the Borrowers were required to pay to CLAH the whole of any remaining principal outstanding (which relevantly includes the outstanding prior debt), together with accrued interest and fees on that amount, and all other money then payable by the Borrowers under the Amended Tallywalker Agreement and unpaid (cl 7.2).
6. Under the Amended Tallywalker Facility, the relevant Security Documents are specified as the Overland GSA and the Tallywalker GSA, both of which are noted to be already held: Schedule 1, Item 11. The security interests granted under both these documents had survived the six-month vesting period as at the date that was marked on the face of the Amended Tallywalker Facility as the date of the document - 27 September 2018.
7. The way in which the phrase Secured Money is defined in the Amended Tallywalker Facility is materially different to the way in which the equivalent phrase of Moneys Secured is defined in the Tallywalker Facility. For present purposes, it suffices to note that the effect of the definition Moneys Secured in the earlier agreement was that it was not constrained by the requirement of being "under or in connection with a Transaction Document". The definition of Secured Money in the later agreement is by contrast constrained by that phrase:

Secured Money means all money that each Transaction Party (whether alone or with another person) is or at any time may become actually or contingently liable to pay to or for the account of the Financier (whether alone or with another person) for any reason whatever under or in connection with a Transaction Document. Secured Money includes money by way of principal, interest, fees, costs, indemnities, Guarantees, charges, duties or expenses or payment of liquidated or unliquidated damages for which a Transaction Party is or at any time may become liable under or in connection with a Transaction Document, or as a result of a breach of or default under or in connection with a Transaction Document. Where a Transaction Party would have been liable but for its Liquidation, it will be taken still to be liable.

(Italics emphasis added.)

12.2.4 Latest transaction document which on its face has CLAH, Tallywalker and Overland as parties, and bears the date 28 August 2018

1. The Further Amended Tallywalker Facility bears the date of 28 August 2018 and records a transaction which on its face involved CLAH, Tallywalker and Overland as parties. As with the Amended Tallywalker Facility, the date shown on the face of this document is not the date on which the document was purportedly signed.
2. The Further Amended Tallywalker Facility was executed by Ms Comino ostensibly in her capacity as sole director of Overland and Tallywalker (the Borrowers) and Mr Baker in his capacity as sole director of CLAH (the Financier). The plaintiffs generally contend that Ms Comino, purportedly as the sole director of Tallywalker at the date the document bears on its face, did not have authority under the Tallywalker constitution or s 127 of the Act to execute documents on behalf of Tallywalker and in any event the plaintiffs maintain that Mr Brooks was a director of Tallywalker from 12 March 2017.
3. Putting the issue of valid execution to one side for a moment, the relevant features of the Further Amended Tallywalker Facility may be summarised as follows.
4. The Further Amended Tallywalker Facility varied the terms of the Amended Tallywalker Facility, recited as being at the request of Tallywalker and Overland, by extending the date of final repayment. That entailed specifically amending the meaning of the defined term Expiry Date (in Schedule 1, Item 8 of the Amended Tallywalker Facility) from 6 April 2020 to 6 April 2022. This was the only amendment provided for in the Further Amended Tallywalker Facility. All other terms of the Amended Tallywalker Facility were stipulated to remain in full force and effect (cl 2.2).

12.2.5 Transaction which on its face had CLAH and Tallywalker as parties but not Overland, and bears the date 28 August 2018

1. The Amended Tallywalker GSA bears the date of 28 August 2018 and records a transaction which on its face involved CLAH and Tallywalker as parties, but not Overland. As with the Amended Tallywalker Facility and the Further Amended Tallywalker Facility, the date shown on the face of this document is not the date on which the document was purportedly signed.
2. It was signed by Ms Comino ostensibly in her capacity as sole director of Tallywalker (as Grantor) and Mr Baker in his capacity as sole director of CLAH (as Secured Party). The plaintiffs contend that the Amended Tallywalker GSA was not validly executed in accordance with s 127(1) as Tallywalker did not have a company secretary as at the date the document bears on its face. The plaintiffs also contend that the document was not validly executed on the basis that the Tallywalker constitution limits the power of a sole director to commit the company to the provision of security and that therefore Ms Comino did not have authority as the alleged sole director of Tallywalker as at the date the document bears on its face to execute the Amended Tallywalker GSA on behalf of Tallywalker. The same issue arises in relation to whether Mr Brooks was a director of Tallywalker at this time.
3. Again, subject to determination of the questions raised in relation to the validity of the document, the Amended Tallywalker GSA was directed to amending the terms of the Tallywalker GSA by replacing Schedule 2 to the original document with an Amended Schedule 2 which identified collateral of two types by listed serial number. This was the only amendment provided for in the Amended Tallywalker GSA. All other terms of the Tallywalker GSA were stipulated to remain in full force and effect (cl 2.2).

1. There are three further documents which are in evidence and which feature in this part of the proceedings. These documents do not involve CLAH as a party. It is convenient to briefly describe those documents.

12.3.1 Transaction which on its face had Tallywalker and Overland as parties but not CLAH, and bears the date 29 October 2018

1. The Overland/Tallywalker GSA bears a date of 29 October 2018 and records a transaction which on its face involved Tallywalker and Overland but not CLAH.
2. The Overland/Tallywalker GSA was signed by Mr Platcher in his capacity as sole director of Overland (as Grantor) and Ms Comino purportedly in her capacity as sole director of Tallywalker (as Secured Party). Mr Platcher commenced as the sole director of Overland on 1 October 2018.
3. By this agreement, Overland agreed to grant a charge and security interest to Tallywalker in all the Secured Property to secure the Secured Money now or in the future to be provided to or at the request of Overland. Secured Property is defined as "the whole of the undertaking property and assets of [Overland] both present and after acquired property". Secured Money is defined as all money (and any part of that money) which directly, indirectly, actually or contingently, or otherwise at any time is or becomes due by Overland (whether alone or not) to Tallywalker for any reason.
4. The plaintiffs in closing submissions drew attention to the timing of this document relative to the appointment of Mr Platcher as the sole director of Overland and Mr Platcher's subsequent action in placing the company in voluntary liquidation. The plaintiffs emphasise that in October 2018, shortly before the winding up of Overland, Mr Baker arranged for the appointment of his associate, Mr Platcher, as the sole director of Overland and did not inform Mr Brooks of Mr Platcher's appointment. A week before putting the company into voluntary liquidation, on 7 February 2019 Mr Platcher caused Overland to pay to CLAH $819,600, which is alleged to have been the final payment due to it from South32 for mining services. This payment followed receipt of a written advice from Mr Carkagis of Diamond Conway to the effect that CLAH had a valid and enforceable facility and security against Overland. Although Mr Carkagis is advising Overland on this occasion about whether CLAH has an enforceable security interest against Overland, he is otherwise referred to in the evidence as being CLAH's solicitor, taking instructions from Mr Baker, and represents the defendants in these proceedings.
5. The relevant facility and security against Overland which are the subject of this advice are the Overland Facility, Overland GSA, Tallywalker Guarantee, Overland Guarantee, Amended Tallywalker Facility, Further Amended Tallywalker Facility and Overland/Tallywalker GSA as well as what is described as a verification certificate which bears on its face the date of 27 March 2018 and was signed by Ms Pickstone purportedly on behalf of Overland and Tallywalker and directed to CLAH. The advice was predicated on instructions which assign to each of the relevant facility and security documents the dates which appear on the face of the documents. The result of Overland making the payment to CLAH on 7 February 2019 was to leave the claims of other creditors of Overland unsatisfied. Mr Brooks gave evidence that at one of the Qantas Club meetings in late 2018, Mr Baker assured Mr Brooks that Overland would pay all of its creditors and contractors. I address the evidence and make findings as to Mr Baker's alleged assurance at part 12.4.3.2 below.

12.3.2 Loan and related security agreement between DMXS, Tallywalker and Overland

1. The documents in evidence which are on their face dated 19 November 2018 are comprised of the DMXS Deed of Loan and the DMXS GSA. The documents recite the existence of an earlier oral loan agreement between the three parties which is alleged to have been made in March 2018 (the DMXS Oral Loan Agreement).
2. The DMXS Deed of Loan was executed by Dr Munro in his capacity as sole director and company secretary of DMXS (as Lender), Ms Comino in her capacity as sole director and company secretary of Tallywalker (as Borrower) and Mr Platcher in his capacity as sole director and company secretary of Overland (as Borrower). Dr Munro agreed that he signed the DMXS Deed of Loan. He said he did not read the document. Instead of reading the document, he chose to place his trust in Mr Baker. He asserted in his evidence that his understanding at the time was that the DMXS Deed of Loan was made to Tallywalker and Overland as an agreement for equity in Tallywalker. He said that "when I did the transaction, it was - it wasn't a loan. It was given to Tallywalker as an agreement for equity in the company". Dr Munro said that he had not discussed with Mr Baker how many shares he would receive in Tallywalker (or Overland) at the time he advanced the funds/loan. Dr Munro agreed that the DMXS GSA was "security for the loan that [he] had made to Tallywalker and Overland" and that it was "the protection which DMXS had as a creditor of those companies". Dr Munro said that he first became aware that he had not been issued with shares in Tallywalker in February 2019 and that he did not complain about not having shares in Tallywalker until just before the Tallywalker Receivers were appointed. Dr Munro has not taken any steps to enforce what he claims was agreed in terms of an issue of shares. Dr Munro clearly understood that the documents he signed were legal documents. He acknowledged that the documents were part of what Mr Baker and Mr Page had arranged to protect Dr Munro's money. Dr Munro's evidence which focussed on an alleged entitlement to equity in Tallywalker underscored the role that hindsight played in shaping his evidence. Dr Munro's evidence was adapted to the circumstance that when he came to give evidence, Overland was in liquidation whereas Tallywalker was not. Dr Munro is not a party to these proceedings and there is no suggestion in the evidence that he has otherwise sought to challenge the validity of the DMXS Deed of Loan which he admits he signed.
3. The DMXS Deed of Loan recites that it is a restatement of the DMXS Oral Loan Agreement. The DMXS Deed of Loan recites that by way of the DMXS Oral Loan Agreement, DMXS (the Lender) agreed to advance to Tallywalker and Overland (collectively the Borrower) by way of loan $663,408.81 on certain terms and conditions (Recital A). The DMXS Deed of Loan records that it was a term of the DMXS Oral Loan Agreement that any amounts advanced by DMXS pursuant to the DMXS Oral Loan Agreement would become due and payable five years from the Advance Date, which is defined in the DMXS Deed of Loan as 22 March 2018 (Recital B). It also records that it was a term of the oral agreement that Tallywalker and Overland were to provide DMXS with security by way of a charge over their respective present and after-acquired assets to secure repayment of all moneys payable under the DMXS Deed of Loan (Recital C). At the time immediately prior to the execution of the DMXS Deed of Loan, Tallywalker, Overland and DMXS had not entered into a written agreement to record the DMXS Oral Loan Agreement (Recital D). The DMXS Deed of Loan includes an acknowledgement by the parties that at all material times, including at the time of the formation of the DMXS Oral Loan Agreement, the parties intended to be immediately legally bound to the performance of the DMXS Oral Loan Agreement, notwithstanding that it was a term of the DMXS Oral Loan Agreement that the parties would enter a formal written agreement(s) which now takes the form of the DMXS Deed of Loan. Under the DMXS Deed of Loan, Tallywalker and Overland acknowledged receipt of the Principal Sum, being $663,408.81: cl 2.1. Absent a default in respect of a payment obligation arising under the deed or the occurrence of an Event of Default, as defined, the date for repayment was the End Date, defined as 22 March 2023 (cl 3.1(a)), but earlier repayment was permissible at the election of the Borrower. Further Advances (as defined) would be on the same terms and conditions as pertained to the Principal Sum (cl 4.2).
4. The DMXS GSA dated 19 November 2018 is between DMXS (the Secured Party) and Tallywalker and Overland (collectively the Grantor). The DMXS GSA was executed by Dr Munro in his capacity as sole director and company secretary of DMXS, Ms Comino in her capacity as sole director and company secretary of Tallywalker and Mr Platcher in his capacity as sole director and company secretary of Overland. Dr Munro accepted that he signed the DMXS GSA. He asserted that he did not "peruse or look at them". I understood "them" to mean both the DMXS Deed of Loan and the DMXS GSA which he executed on that day. As is the case in relation to the DMXS Deed of Loan, Dr Munro has not made any claim that the DMXS GSA is not valid. I find that as with the DMXS Deed of Loan, Dr Munro understood that the DMXS GSA was a legal document and would have legal effect when he signed it.
5. The DMXS GSA recites that DMXS has advanced $663,408.81 to Tallywalker and Overland pursuant to certain oral terms and conditions including that the loan was repayable at call (Recitals A and B); that DMXS has yet to call for the repayment of any monies advanced under the loan thereby allowing Tallywalker and Overland a period of forbearance (Recital C); and that in consideration of DMXS allowing a period of forbearance, Tallywalker and Overland agreed to provide DMXS with a charge over all of the assets of Tallywalker and Overland to secure the payment of the Secured Money to DMXS and the performance of the Secured Obligations (where applicable) (Recital D). By cl 4.1, the parties acknowledge and agree that the Recitals are true to the best of their knowledge and belief. There is no analogue to cl 4.1 of the DMXS GSA in the DMXS Deed of Loan.
6. The discrepancy between the recounted terms of the pre-existing oral agreement in the DMXS Deed of Loan (relevantly, the loan being for a fixed term) and the DMXS GSA (relevantly, the loan being repayable at call) is not explained in the evidence.
7. Beneath the surface of the documented agreements, there seethes a mess of allegation and counter-allegation concerning the circumstances in which Dr Munro, through DMXS, paid $663,408.81 to Tallywalker. Dr Munro maintained that the funds advanced were not a loan, but rather an equity acquisition. I do not accept this characterisation of the legal arrangement concerning the advance of these funds. Dr Munro could not say how many shares in Tallywalker and/or Overland, if any, he was to receive in return for the loan of $633,408.81 from DMXS. He said that he and Mr Baker "hadn't talked about numbers". He also referred to an initial conversation with Mr Page in September 2017 in which Mr Page told him that "potentially we could provide equity in the company to you". The amount of equity was not mentioned in this conversation. Dr Munro accepted that whether Dr Munro was promised any shares, and if so, how many shares, was a significant matter within the context of the transaction. Dr Munro also accepted that it would have been "an obvious step" to record in writing this part of the agreement, including at the time of executing this transaction. This obvious step was not taken. Even if such an agreement existed, Dr Munro has made no claims against CLAH. Dr Munro has not provided any documentary evidence in support of his understanding of the agreement which purportedly entitled him to an unspecified number of shares in either Tallywalker and/or Overland in return for the payment of $633,408.81. As with his other dealings with Mr Baker, Dr Munro appeared content not to understand precisely what he was agreeing to and relied solely on promises made by Mr Baker and Mr Page. Mr Baker denied meeting with Dr Munro to discuss the acquisition of shares in Tallywalker in return for his financial support of Overland and Tallywalker and referred to Dr Munro's contribution to Tallywalker and Overland as "that loan to Tallywalker". I do not place weight on Mr Baker's denial in light of my earlier findings as to the unreliability of Mr Baker's evidence. Having regard to the terms of the documented agreements which Dr Munro confirmed he has signed and the lack of any earlier oral consensus as to terms to the contrary, I am not satisfied that the amount advanced by Dr Munro, through DMXS, to Tallywalker was in exchange for shares or an interest in the Drilling Rig Venture. The terms on which that advance was made are the subject of the formal loan and security documents that Dr Munro acknowledges he signed. The relief sought in these proceedings does not relate to the enforcement or setting aside of the contracts signed by Dr Munro.
8. I now turn to addressing the validity of the agreements that are relevant to the relief sought in respect of the Tallywalker Receivers.

12.4 Issue 22, 26 and 26A - Validity of Tallywalker facility and security agreements and appointment of Ms Comino, Ms Pickstone and Mr Platcher as directors

1. These issues are interrelated - the parties addressed them together. I will do likewise.
2. These issues are directed to establishing the plaintiffs' contention that the Tallywalker facility and security agreements did not bind Tallywalker. Relatedly, in closing submissions, the plaintiffs raised a similar argument in relation to the validity of CLAH's execution of the Tallywalker Facility and by extension the Tallywalker GSA based on an answer that Mr Baker gave in cross-examination.

12.4.1 Execution of documents in accordance with s 127 of the Act

1. I now turn to the relevant provisions of the Act as in force at the time of the execution of these documents. Although there is controversy as to the date on which the documents were in fact executed, the relevant provisions were in the same form until they were amended in 2022, which is subsequent to the latest date on which the last of these documents were executed.
2. Section 127 at the material times relevantly provided:

127 Execution of documents (including deeds) by the company itself

(1) A company may execute a document without using a common seal if the document is signed by:

(a) 2 directors of the company; or

(b) a director and a company secretary of the company; or

(c) for a proprietary company that has a sole director who is also the sole company secretary - that director.

Note: If a company executes a document in this way, people will be able to rely on the assumptions in subsection 129(5) for dealings in relation to the company.

...

(3) A company may execute a document as a deed if the document is expressed to be executed as a deed and is executed in accordance with subsection (1) or (2).

(4) This section does not limit the ways in which a company may execute a document (including a deed).

1. Section 128 at the material times relevantly provided:

(1) A person is entitled to make the assumptions in section 129 in relation to dealings with a company. The company is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

(2) A person is entitled to make the assumptions in section 129 in relation to dealings with another person who has, or purports to have, directly or indirectly acquired title to property from a company. The company and the other person are not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

(3) The assumptions may be made even if an officer or agent of the company acts fraudulently, or forges a document, in connection with the dealings.

(4) A person is not entitled to make an assumption in section 129 if at the time of the dealings they knew or suspected that the assumption was incorrect.

1. Section 129 at the material times relevantly provided:

Director or company secretary

(2) A person may assume that anyone who appears, from information provided by the company that is available to the public from ASIC, to be a director or a company secretary of the company:

(a) has been duly appointed; and

(b) has authority to exercise the powers and perform the duties customarily exercised or performed by a director or company secretary of a similar company.

...

Document duly executed without seal

(5) A person may assume that a document has been duly executed by the company if the document appears to have been signed in accordance with subsection 127(1). For the purposes of making the assumption, a person may also assume that anyone who signs the document and states next to their signature that they are the sole director and sole company secretary of the company occupies both offices.

1. Section 127 of the Act relevantly provides statutory methods by which a company may execute a document, including without requiring the use of a common seal. The statutory means of execution are additional to any that may be conferred under the company's constitution. I address Tallywalker's constitution below.
2. Section 127 was amended by the Corporations Amendment (Meetings and Documents) Act 2022 (Cth) to cater for proprietary companies with one director and no secretary. Before its amendment in 2022, and at all relevant times for these proceedings, s 127 did not cater for the circumstance where a company executed a document by its sole director in circumstances where it had no company secretary. As amended in 2022, s 127 operates to extend the benefit of the s 129 assumptions for proprietary companies with one director and no company secretary. As at the date of the purported execution of each of the facility and security documents listed above, s 127(1) was more confined.
3. At the relevant time, a proprietary company with one director and no secretary could provide in its constitution for the sole director to be authorised to execute documents on behalf of the company. Section 127, as it then was, did not supply an exclusive means by which a company could execute a document. Section 127 enabled a person who dealt with a company and who received a document executed by it to take the benefit of the assumptions in s 129(5) without needing to call for the company's constitution to check that the document had been duly executed provided that the conditions stated in s 127(1) were satisfied. For present purposes, the relevant conditions where the document was executed without using a common seal required that the document be signed by:

(1) two directors of the company;

(2) a director and a company secretary of the company; or

(3) for a proprietary company that has a sole director who is also the sole company secretary - that director.

1. Relevantly for present purposes, each of the purported executions of the relevant documents by Tallywalker was by a lone person. Each was said to be in accordance with s 127 of the Act. In some instances, the lone person signing the document was described as "Sole Director/Company Secretary" and in other cases as "Sole Director".
2. For the documents bearing the date 6 April 2017, the description given in the execution block for Ms Comino was that she was "Sole Director/Company Secretary" of Tallywalker. The question arises whether Ms Comino was in fact the sole director and also the sole company secretary at the time she purported to execute the documents bearing the date 6 April 2017 on behalf of Tallywalker. If Mr Brooks was a director, then Ms Comino was not the sole director. In that circumstance, the issue arises as to whether CLAH is entitled to take the benefit of the assumption in s 129(5) of the Act. CLAH will not be entitled to make the assumption in s 129(5) if at the time of the dealings CLAH knew or suspected that the assumption was incorrect. I address below the circumstances pertaining to Mr Brooks, his status as a director of Tallywalker and CLAH's knowledge of those matters.
3. For the balance of the documents (being the documents bearing the dates 27 March 2018 and 28 August 2018), the lone person purporting to execute the documents on behalf of Tallywalker ostensibly in accordance with s 127 of the Act was described a "sole Director". Section 127 did not at the relevant time provide an additional statutory means by which a proprietary company with one director and no secretary could execute a document. As I have said, it was not until after the provisions were amended in 2022, that s 127 provided for execution by a sole director simpliciter.
4. Section 127 does not limit the ways in which a company may execute a document: s 127(4). In Prime Constructions Pty Ltd v Westbridge Investments Pty Ltd [2004] NSWSC 861; 22 ACLC 1390 at [16] and [18], Young CJ in Eq observed that the operation of s 127(4) was not particularly clear but said that it would seem to cover the common law method of executing a deed, the method of execution that is prescribed by its constitution, or a situation where, by virtue of some estoppel, the deed is binding on the company.
5. Execution of a document by an agent on behalf of a company is provided for in s 126, as distinct from execution by the company itself as governed by s 127: Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd [2016] FCA 764 at [281] (Moshinsky J).
6. Where a company executes a document in accordance with s 127(1), the counterparty will be able to rely on the assumption in s 129(5) of the Act for dealings in relation to the company: Martin v New South Wales [2011] NSWLEC 50 at [118] (Preston CJ); Boz One Pty Ltd v McLellan [2015] VSCA 68; 105 ACSR 325 at [209] (Whelan, Santamaria and Kyrou JJA); Colin R Price at [281]. A failure to comply with s 127 does not, in and of itself, cause the execution of the document to be ineffective in law: Martin v New South Wales at [120].
7. A person is not entitled to rely on an assumption under s 129 if at the time of the dealings the person knew or suspected that the assumption was incorrect: s 128(4). It is well-established that the reference to knowledge or suspicion in s 128(4) requires actual knowledge or actual suspicion that an assumption was incorrect: Soyfer v Earlmaze Pty Ltd [2000] NSWSC 1068 at [70] (Hodgson CJ in Eq); Queensland Bacon Pty Ltd v Rees [1966] HCA 21; 115 CLR 266 at 303 (Kitto J).

12.4.2 Tallywalker Constitution and status of individuals as directors of Tallywalker

1. Before turning to the evidence in relation to the execution of the relevant documents, it is necessary to first address the evidence in relation to Tallywalker's constitution and the status of Mr Brooks, Ms Comino and Ms Pickstone as persons appointed as directors of Tallywalker.
2. During the examination of Mr Brooks, he produced the original of Tallywalker's company register which was tendered without objection as Trial Exhibit 4. The company register included original signed copies of the company constitution and minutes from company meetings. Copies of the minutes from the meeting held on 12 March 2017, together with a resolution and special resolution each dated 12 March 2017 which were discussed at that meeting, and the Tallywalker constitution dated 12 March 2017 were included in the plaintiffs' supplementary court book.
3. Mr Brooks gave evidence that the company register came into his possession in early 2021, when it was retrieved from his father's back shed. It will be recalled that Mr Wilson was the sole director of Tallywalker from its incorporation on 14 July 2014 until 5 April 2017. Mr Brooks said that he had sent multiple messages and emails to the Tallywalker Receivers and their solicitors offering to provide the company register to them but that he did not receive a response.
4. I am satisfied that the Tallywalker company register and the documents contained within it which I address in the paragraphs which immediately follow are authentic documents that were created on the dates recorded on the face of the documents and were signed by each of Mr Wilson and Mr Brooks at that time. On the basis of these documents, I find that on 12 March 2017, Tallywalker adopted its constitution and ceased to operate under the replaceable rules supplied by the Act and that Mr Brooks was validly appointed as a director of Tallywalker. He overlapped with Mr Wilson as a director until Mr Wilson resigned as a director on 5 April 2017.
5. I now turn to the documents contained in the Tallywalker company register. First, the meeting minutes of the "First Annual General Meeting of TallyWalker Pty Ltd" on 14 July 2014, being the date of registration of Tallywalker. The first annual general meeting (AGM) was attended by all shareholders, being Mr Wilson and Mr Brooks. The first AGM was chaired by Mr Wilson. The minutes record that at the meeting, a resolution was put forward by Mr Brooks to reject the constitution supplied with company registration in favour of adopting the "Replacement Rules". I infer this to mean the replaceable rules provided for by various provisions of the Act. A company's internal management may be governed by the replaceable rules, by a constitution or by a combination of both: s 134. It was resolved by a show of hands and a unanimous decision to reject the supplied constitution and adopt the "replacement Rules". The minutes are signed by both Mr Wilson and Mr Brooks on 14 July 2014 in accordance with "s 251(A)(2) of the [Act] as a true and correct record". I take this to be an erroneous reference to s 251A(2) of Act, which provides that a company must ensure that minutes of a meeting are signed within a reasonable time after the meeting by one of the following: (a) the chair of the meeting; or (b) the chair of the next meeting.
6. Second, the meeting minutes of the AGM of Tallywalker held on 12 March 2017, attended by Mr Wilson and Mr Brooks, together with copies of the resolution and special resolution discussed at this meeting. In the 12 March 2017 AGM minutes, the "Business to discuss" is relevantly described as:

• Henry Wilson's exit in favor of Theo Baker injecting $1 million into Tallywalker
• Special resolution to adopt Constitution
• Appointment of Nathan Brooks as a Director

1. The minutes record that the special resolution to adopt a constitution was resolved by unanimous decision and show of hands. The minutes record that it was also resolved to appoint Mr Brooks as a director of Tallywalker by unanimous decision and show of hands. Under the heading "Other matters", the minutes record that it was agreed in principle that Mr Wilson would send "an undated letter of resignation as a show of good faith as drills are now sorted, letter to be dated and executed at first meeting of new members". The 12 March 2017 AGM minutes are signed by both Mr Wilson and Mr Brooks in accordance with "s 251(A)(2) of the [Act] as a true and correct record". The minutes do not record who was relevantly the chair of the 12 March 2017 AGM.
2. Third, a copy of the minute of special resolution of shareholders of Tallywalker dated 12 March 2017. It records, as a statement pursuant to s 249A of the Act, that all shareholders of Tallywalker were in favour of the special resolution. The special resolution was relevantly (as written):

Resolved as a Special Resolution of the Company that we Henry Wilson of 34 Brough street Cobar in the state of New South Wales and Nathan Brooks of 1 curlew street Slade Point Queensland, being members of Tallywalker pty ltd, herby agree to adopt the Constitution as the company governing rules of internal management pursuant to the corporations Act as amended.

The Replacement rules be hereby replaced by the document with a Constitution a copy of which the Constitution we have attached to this minute of Special Resolution and we have each signed and dated on the front page for the purpose of identification.

1. The minute of special resolution was signed by both Mr Wilson and Mr Brooks on 12 March 2017 in accordance with "s 251(A)(2) of the [Act] as a true and correct record". The special resolution pursuant to s 249A was not required in circumstances where the resolution was passed at a duly convened meeting. In any event, it is clear that the adoption of the constitution was put beyond doubt by the passage of the special resolution at the 12 March 2017 AGM by the requisite majority and in addition, in accordance with s 249A of the Act.
2. Fourth, a copy of the resolution to appoint a new officeholder. It records that the officeholder, being a reference to Mr Wilson as the company director and secretary, has received and accepted the consent to act signed by Mr Brooks. The consent to act is not in evidence. I infer that the consent to act was received as documented in the resolution which is signed by Mr Wilson and Mr Brooks. It also records that the officeholders and members directed Tallywalker to update ASIC with the changes. The resolution is signed by Mr Brooks on 12 March 2017 in accordance with "s 251(A)(2) of the [Act] as a true and correct record".
3. Having regard to the ASIC company search for Tallywalker in evidence, ASIC does not appear to have been notified of the changes affected by the resolution and special resolutions recorded in the 12 March 2017 AGM minutes. I infer from the evidence which follows that Mr Brooks entrusted Mr Baker to attend to notifying ASIC, but that Mr Baker did not do so. I do not accept Mr Baker's evidence that Mr Brooks agreed that Ms Comino would be the sole director of Tallywalker. In so far as Mr Baker maintained that the office holders and share distribution of Tallywalker and Overland were to mirror each other as part of his claim that Mr Brooks agreed that Ms Comino was to be the sole director of Tallywalker, I reject that evidence. It was another part of the evidence where Mr Baker was reconstructing his evidence to tailor it to fit particular contemporaneous documents. In making this finding, I have taken into account the corporate structure diagrams prepared by Mr Baker on which the defendants relied. I place very little weight on these documents.
4. I find that Mr Brooks gave a copy of the Tallywalker constitution to Mr Baker and informed Mr Baker that he had been appointed as a director. Given the timing of the AGM, it would make no sense for Mr Brooks not to tell Mr Baker of the outcome of the AGM and to provide him with a copy of the constitution. At this time, Tallywalker was very much Mr Brooks' company. He had been involved with Tallywalker since its incorporation in 2014. Together with his father Mr Wilson, he owned the company. His father was the sole director from incorporation until the AGM on 12 March 2017. Mr Brooks was the General Manager of Tallywalker throughout. He had arranged for Tallywalker to hold the intellectual property for the drill bit that he had invented and which he regarded as being commercially valuable. At the time of the AGM in March 2017, Mr Brooks was at the start of his business relationship with Mr Baker (through CLAH) and Mr Page (through Harmat and Pegasus). It was in this context that Mr Brooks and his father put in place the arrangements that were affected at the AGM. They did this at the time Tallywalker was still under the control of Mr Wilson and fully owned by Mr Brooks and Mr Wilson. It is significant that Mr Brooks took steps to ensure that he became a director and that the company adopted a bespoke constitution. Under that constitution, the company's power to borrow money was constrained in that it required the consent of all directors and the company was required at all times to have a minimum of two directors. If the number of directors in office fell below the minimum of two directors, the directors could not exercise the powers conferred on them under the constitution other than to convene a general meeting. Mr Page gave evidence that Mr Brooks provided Mr Baker with a copy of Tallywalker's constitution and the documents by which Mr Brooks was made a director. I accept Mr Page's evidence on this issue. As I have said, it would make no sense for Mr Brooks to have kept from Mr Baker the arrangements that he had caused to be put in place to set the parameters of how Tallywalker would be governed after Mr Baker and Mr Page became stakeholders through their respective companies. I infer that Mr Brooks provided this information to Mr Baker some time in around late March 2017.
5. On 24 March 2017, Mr Baker sent an email to Mr Brooks proposing the following changes to the share structure of Tallywalker:

I've had a quick look at Tallywalker Pty Ltd and consistent with what you mentioned there are two shares on issue. One is owned by you personally and the other share is owned by Henry Wilson, whom I understand is your dad.

Are you happy for me to now make the changes that we discussed whereby Lemuel's and my company hold 50 %, essentially transferring the share from Henry to us? Also, I would recommend that you hold your share by your trust (Mango Cobar Pty Ltd atf Mango Cobar Trust) and not in your name personally. As such, please let me know if you are also happy for me to transfer your share into your trust?

Please let me know if you are happy for me to arrange for the above changes to be made?

In summary, the share structure for Tallywalker Pty Ltd after the above changes will be the same as for Overland Mining Services Pty Ltd where you hold 50% of the shares and Lemuel and I hold the other 50%.

1. Mr Baker's reference to Mr Page's interest following the redistribution of shares is another indication that the companies which are ostensibly owned and controlled by Ms Page, in this instance Harmat, are in fact the means by which Mr Page's interest is held. Mr Page had only been discharged from his bankruptcy at the end of the previous year. It is another part of the evidence that supports the findings I have made in relation to Issue 1 vis-à-vis Mr Page and Harmat.
2. Mr Brooks replied on 24 March 2017, approving Mr Baker's proposed changes to Tallywalker's share structure:

Please go ahead with the share structure. I will arrange for my father's half to be transferred across

1. On 27 March 2017, Mr Baker sent an email to Mr Brooks, copied to Mr Page, confirming that the proposed changes to Tallywalker's share structure had been made and attached the relevant ASIC forms to give effect to these changes. The email chain forwarded to Mr Page included the emails passing between Mr Baker and Mr Brooks on 24 March 2017:

Hi Nathan,

Further to the Tallywalker Pty Ltd share structure change, today I had the following changes made:

1. Transferred the one share held by Henry Wilson to Nathan Brooks

2. Issued a further 1998 shares so that the total number of shares on issue are now 2000

3. Reduced the two shares held by Nathan Brooks to zero

4. Allocated 1000 (50%) shares to Mango Cobar Pty Ltd (non-beneficially held as they are held by the trust)

5. Allocated 250 (12.5%) shares to Harmat Nominees Pty Ltd (non-beneficially held as they are held by the trust)

6. Allocated 250 (12.5%) shares to Pegasus Corporation Pty Ltd (non-beneficially held as they are held by the trust)

7. Allocated 500 (25%) shares to CL Asset Holdings Limited (beneficially held as there is no trust)

Attached is the paper work that confirms the share changes. I need to prepare a share transfer documents for Henry to sign in relation to the transfer of his one share to you.

I note that Henry Wilson remains the single company director. Would you like me to change the director to be the same as that of Overland Mining Services Pty Ltd??

I'll call shortly to discuss.

1. Mr Page was cross-examined on this email chain - in particular, that the email contained no reference to CLAH having to pay any money for the shares issued in Tallywalker. Mr Page claimed that there was an agreement between Mr Brooks, Mr Baker and himself that the shares in Tallywalker would be split 50% in favour of Mr Brooks and 50% in favour of Mr Page and Mr Baker's interests and that CLAH would have to pay money to Tallywalker for the issue of its shares. Mr Page said that Mr Baker never sent any emails to him or Mr Brooks about such an agreement but maintained that the agreement was "all verbal". The best explanation Mr Page was able to give as to why these fundamental aspects of the agreement were not recorded in writing is that, according to Mr Page, Mr Brooks would not give Mr Baker shares in Tallywalker until the rigs were purchased and put into Tallywalker's name. At the time of Mr Baker's emails on 24 March 2017, Mr Page said that the rigs had been purchased and were in the process of being delivered to Australia. When pressed for further detail of this explanation, Mr Page said "[t]hat's just how Mr Baker operated". Mr Page gave evidence that this information was not included because the rigs were already transferred to Tallywalker. Mr Page confirmed that the contents of the email were correct but could not recall whether he had seen the attached documents.
2. On 3 April 2017, Mr Brooks sent an email to Mr Baker in relation to executing the relevant ASIC forms:

If you send the paperwork I'll have the transfers done this week.

1. Later on 3 April 2017, Mr Baker replied to Mr Brooks, copied to Mr Page, attaching two ASIC forms and a draft letter of resignation on behalf of Mr Wilson:

In relation to the paperwork for the Tallywalker transfer please find attached the following:

1. 1. Transferred the one share held by Henry Wilson to Nathan Brooks

2. 2. Issue of 1998 shares and allocation to the various parties

3. 3. Notice of Resignation by Henry Wilson

The first two documents only need to be signed on the front page where indicated and the resignation letter needs a signature and date at the bottom of the page where indicated. The resignation letter is the standard letter however if you feel it is a bit strong worded then I can delete the last two paragraphs if you prefer - please let me know?

Once I receive the signed forms and the signed and dated resignation letter I can have the director changed as discussed.

Please let me know if you have any questions or comments.

1. The first ASIC form provided for changes to the shareholding of Mr Wilson and Mr Brooks, so that Mr Wilson would cease to be a shareholder of Tallywalker and Mr Brooks would hold a total of two shares in Tallywalker.
2. The second ASIC form provided for the issue of 1,998 new shares, such that the total number of shares in Tallywalker would increase to 2,000 shares. It also provided for changes to Tallywalker's shareholding, so that Mr Brooks would cease to be a shareholder of Tallywalker, CLAH would be issued 500 shares, Pegasus would be issued 250 shares, Harmat would be issued 250 shares and Mango Cobar would be issued 1,000 shares. The earliest date of change for each of these changes to Tallywalker's share structure is recorded as 27 March 2017.
3. The draft letter of resignation relevantly stated:

I, HENRY WILSON of 34 Brough Street, Cobar in the state of New South Wales resign as Company Director and Company Secretary of TALLYWALKER PTY LTD (ACN 600 692 886) effective from the date of this letter.

I confirm that no remuneration or expenses are payable to me by TALLYWALKER PTY LTD in connection with my having acted or my resigning as a Director and Secretary of the Company.

I confirm that I have no claim of any kind against TALLYWALKER PTY LTD in respect of breach of contract, loss of office, redundancy, compensation or payment.

1. In the email attaching these documents, Mr Baker says that upon receipt of the signed forms and the signed and dated resignation letter he can have "the director changed as discussed" (emphasis added). On Mr Baker's account this was a reference to changing the directorship from Mr Wilson as sole director to Ms Comino as sole director and that this is what he discussed with Mr Brooks and Mr Page. Mr Baker claims they each agreed to this "over the phone". Mr Baker further claims that Mr Brooks expressly refused to be a director of either Tallywalker or Overland. Mr Brooks acknowledges that he refused to be a director of Overland but denies that was the case with Tallywalker. The effect of Mr Brooks' evidence is that at all times he understood based on his discussions with Mr Baker and Mr Page that Ms Comino, who he described as Mr Baker's "puppet", would be a director in addition to him and would also be the company secretary. Mr Brooks understood that Ms Comino would notify ASIC of Mr Brooks' appointment, presumably at the same time as she notified ASIC of Mr Wilson's resignation. Further, there was a consensus amongst Mr Brooks, Mr Page and Mr Baker that Ms Comino would be appointed as a director and company secretary of Tallywalker. In accordance with Tallywalker's constitution, this would require a general meeting of Tallywalker to take place or a circularised resolution to be passed appointing Ms Comino. Mr Page's evidence is consistent with Mr Brooks' evidence, with the exception of Mr Page's evidence that it was Mr Baker, rather than Ms Comino, who "didn't do the paperwork" to notify ASIC of Mr Brooks' appointment as director.
2. Although the email is somewhat ambiguous, I prefer Mr Brooks' evidence because it is consistent with what was required under the Tallywalker constitution, which had recently been adopted and which Mr Baker had been given a copy of by Mr Brooks. For the reasons I have given above, it would make no sense for Mr Brooks to take the steps to formally change the governance arrangements of Tallywalker and a few weeks later agree to Ms Comino becoming a sole director in a way that would paralyse the company's ability to function until another director was appointed or the constitution was changed. Although I do not place much weight on Mr Page's evidence for the reasons I have given in relation to his pervasive lack of credit, I note that his evidence was consistent with Mr Brooks' evidence in that he maintained that Mr Baker assumed responsibility for notifying ASIC that Mr Brooks was appointed in March 2017 as a director but that he did not do so.
3. Taking all of this into account, I find that Mr Brooks did not agree to Ms Comino becoming sole director of Tallywalker. I further find that Mr Baker concealed from Mr Brooks that he had caused only Ms Comino to be notified to ASIC as the director of Tallywalker in circumstances where he knew that Mr Brooks had been appointed as a director of Tallywalker on 12 March 2017. Finally, I find that Mr Baker had a copy of Tallywalker's constitution and was aware of, or wilfully blind to, its contents.
4. On 5 April 2017, Mr Brooks sent an email to Mr Baker attaching the ASIC forms signed by Mr Wilson, bearing the date 27 March 2017. Mr Brooks also attached the letter of resignation signed by Mr Wilson, dated April 2017. The letter was in the same form as the draft that Mr Baker had provided to Mr Brooks.
5. The ASIC company search records that on 5 April 2017, Ms Comino was appointed as director of Tallywalker. There is no reference to Ms Comino's appointment in the ASIC forms provided by Mr Baker to Mr Brooks on 3 April 2017. There are no documents in evidence that demonstrate that Tallywalker passed a resolution to appoint Ms Comino as a director or that Ms Comino consented to being so appointed. The only evidence is the company search for Tallywalker.
6. There are no minutes in evidence in respect of any general meeting being held for Tallywalker after the meeting on 12 March 2017. The Tallywalker constitution provides that Tallywalker may only appoint a director by ordinary resolution at a general meeting: cll 19.3, 19.4. There is no evidence that a general meeting was held in which Ms Comino was appointed. Notwithstanding any non-compliance with the Tallywalker constitution, the position vis-à-vis third parties was that Ms Comino could be assumed to be duly appointed as a director of Tallywalker pursuant to s 129(2) because Ms Comino appeared on the publicly searchable ASIC records for Tallywalker as being a director from 5 April 2017 (and for subsequent periods in which she was recorded on the ASIC register as holding that status). However, in view of Mr Baker's de facto control of CLAH, and Ms Comino's role at CLAH, I find that CLAH was fixed with the knowledge of Mr Baker (and to the extent relevant, Ms Comino) and was precluded by s 128(4) from taking the benefit of an assumption under s 129(2) which it knew or at worst suspected to be untrue.
7. Mr Brooks' appointment as a director of Tallywalker was valid notwithstanding it was not notified to ASIC. Under ss 205B(1) and 201L of the Act at the material times, a company was required to notify ASIC within 28 days of the appointment of a new director. The notice must be in the prescribed form, namely Form 484, and give the personal details of the director. It is an offence of strict liability for a company not to do so: s 205B(7). The appointment of Mr Brooks was effective notwithstanding Tallywalker's non-compliance with s 205B(1). The s 129(2) assumption as to a director or company secretary having been duly appointed is available with respect to anyone who appears, from information provided by the company that is available to the public from ASIC, to be a director or a company secretary of the company: s 129(2)(a). In circumstances where a director's appointment has not been notified to ASIC, the s 129(2) assumption would not be engaged but the appointment would not be invalidated.
8. I find that Mr Brooks was duly appointed as a director of Tallywalker on 12 March 2017 in accordance with the provisions of the Tallywalker constitution as to appointment of directors and has not resigned or been removed from that position thereafter. This finding is significant for a number of reasons.
9. First, in any company with several directors, whether public or proprietary, an ordinary, individual director has no ostensible authority to bind the company: Northside at 205 (Dawson J, with whom Toohey J agreed). An individual director has only a power to join with other directors in a collective exercise of power by the board. If a director is to have power on their own to bind the company, then they must either have that power as an agent, delegated by the appropriate organ, or by a power granted under the company's constitution as a governing director. A company may expressly authorise an individual director to carry out formal functions for the company, such as executing a document on its behalf. Whether the transaction underlying it binds the company will depend on whether the person who authorised it had sufficient authority.
10. While s 127 does not limit the ways in which Tallywalker could execute the relevant documents (see s 127(4)), the defendants have not identified any basis upon which the purported directors were otherwise expressly or implied authorised by Tallywalker to execute each of the transaction documents. Sections 126 and 127 of the Act draw a distinction between execution by the company itself - which is governed by s 127 - and execution by an agent on behalf of the company - which is governed by s 126: Colin R Price at [281]. Given that I have found that Mr Brooks was appointed as a director of Tallywalker on 12 March 2017 and remained so throughout the relevant period, Ms Comino or Ms Pickstone did not have the authority to act without Mr Brooks' agreement (whether by a meeting or otherwise) and without him executing each of the relevant agreements as the other director of Tallywalker.
11. Mr Baker knew that Mr Brooks was appointed director of Tallywalker on 12 March 2017 and knew or was wilfully blind to the fact that Tallywalker could not legally enter into any of the relevant agreements (being the Tallywalker Facility, Tallywalker GSA, the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA) absent the signature of Mr Brooks and any other validly appointed director. As I have said, CLAH is fixed with Mr Baker's knowledge of these matters.
12. I now turn in greater detail to the constitution of Tallywalker. As mentioned, the Tallywalker constitution was adopted by special resolution of the members of Tallywalker on 12 March 2017. It took effect on that date in accordance with s 137 of the Act. There is no obligation on a proprietary company to lodge with ASIC a copy of its constitution in circumstances where the constitution was duly adopted after the company is registered: s 136(1)(b) of the Act.
13. The constitution of Tallywalker requires that Tallywalker has at all times a minimum of two directors. Clause 19.1 of the Tallywalker constitution provides (as written):
    1. APPOINTMENT, REMOVAL AND REMUNERATION OF DIRECTORS

19.1 Until otherwise determined by a general meeting the number of Directors shall not be less than TWO nor more than TWENTY, If the number of directors falls below the minimum set by the company, they must not act as directors until the number is increased to the minimum, except:

19.3 Subject to clause 19.7, the Directors and every Director appointed under this Constitution shall hold office until they are removed or until their office shall become vacant pursuant to this Constitution or pursuant to the Corporations Act.

19.4 The Directors may only appoint any person to be a Director, either to fill a casual vacancy or as an addition to the existing Directors, at a General Meeting PROVIDED THAT that the total number of Directors does not at any time exceed the number determined in accordance with this Constitution.

19.5 The Company may by ordinary resolution at a General Meeting: -

(a) remove any Director before the expiration of the Director's term of office, and may appoint another person in the removed Director's stead;

...

19.7 In addition to the circumstances in which the office of a Director becomes vacant by virtue of the Corporations Act, the office of a Director becomes vacant if the Director:

(a) becomes bankrupt;

(b) becomes of unsound mind or a person whose person or estate is liable to be dealt with in any way under the law relating to mental health;

(c) resigns the person's office by notice in writing to the Company;

(d) is absent without the consent of the Directors from meetings of the Directors held during a period of six months.

1. Clause 20 broadly provides the powers of Tallywalker's directors:

20. POWERS AND DUTIES OF DIRECTORS

20.1 Subject to the Corporations Act and to any other provision of this Constitution, the business of the Company shall be managed by the Directors who may pay all expenses incurred in promoting and forming the Company and may exercise all such powers of the Company as are not, by the Corporations Act or the Constitution, required to be exercised by the Company in general meeting.

20.2 Without limiting the generality of clause 20.1, the Directors may exercise all the powers of the Company to charge any property or business of the Company or all or any of its uncalled capital and to issue debentures or give any other security for a debt, liability or obligation of the Company or of any other person.

20.3 The Directors may only exercise the power of the Company to borrow money in the case that all Directors of the Company shall sign a document indicating their consent to the loan.

20.4 All cheques, promissory notes, bankers drafts, bills of exchange and other negotiable instruments and all receipts for money paid to the Company shall be signed, drawn, accepted, endorsed or otherwise executed, as the case may be, by any Director or in such other manner as the Directors may determine.

1. The plaintiffs emphasise cl 20.3 which provides that a director is only able to cause Tallywalker to borrow money if all directors provide their written consent to the loan.
2. Clause 28.5 provides that Tallywalker may execute instruments without a company seal either by execution by two directors or by a director and company secretary provided that they are not the same person signing in a dual capacity.
3. Tallywalker's constitution did not provide for the appointment of a sole director. Tallywalker was required to have a minimum of two directors at all times and suspended a director's ability to exercise power (act as a director) during any period where there was not a minimum of two directors, save for convening a general meeting. The Tallywalker constitution required that where documents were to be executed by the company without affixing the company seal, it was necessary for two company officers to execute the document and that could not be done by one person acting in a dual capacity: cl 28.5.
4. The only evidence as to the appointments of each of Ms Comino, Mr Comino, Ms Pickstone and Dr Munro as directors of Tallywalker arises from notice of their directorships on the ASIC register. I accept that in the absence of evidence to the contrary, the recording of a directorship on the ASIC register is prima facie evidence of the appointment of that person to the relevant company: s 1274B(2). The plaintiffs contend that the constitution of Tallywalker, which has not been complied with, provides sufficient evidence to the contrary to displace the prima facie position as to directorship: see Barboutis v The Kart Centre Pty Ltd (No 2) [2020] WASCA 41 at [42]- [45] (Buss P, Mitchell and Vaughan JJA).
5. Clauses 19.4 and 19.5 of the Tallywalker constitution provide that a person may only be appointed as a director at a general meeting by an ordinary resolution. The defendants have not produced any evidence of any general meeting of the members of Tallywalker at which it was resolved to appoint relevantly Ms Comino as director and company secretary on 5 April 2017 or thereafter when she was purportedly re-appointed, or to appoint Ms Pickstone as director on 16 March 2018.
6. Clause 17.7 of the Tallywalker constitution permits a resolution to be passed by all members of the company signing a statement that they are in favour of the relevant resolution, with the resolution thereby deemed to have been passed at a general meeting. The shareholders of Tallywalker as at the relevant times were CLAH, Mango Cobar, Harmat and Pegasus. There is no evidence before me of any resolution being passed by Tallywalker's shareholders appointing Ms Comino or Ms Pickstone as directors.
7. As to the appointment of Ms Comino on 5 April 2017, the defendants claim that all of the members of Tallywalker agreed to that appointment by reference to the Duomatic principle as to waiver of formalities of members approving the appointment of a director under cl 17.7 of Tallywalker's constitution: Re Duomatic Ltd [1969] 2 Ch 365 (Buckley J); Herrman v Simon (1990) 4 ACSR 81 at 83 (Meagher JA, with whom Samuels JA and Priestley JA agreed); Vermillion Resources Pty Ltd v Gibbons Investments Pty Ltd [2011] FCAFC 149; 86 ACSR 246 at [17] (Rares, Gilmour & Dodds-Streeton JJ). The difficulty with that submission is that the evidence does not support the contention that all of the members approved Ms Comino being appointed as sole director of Tallywalker in circumstances where the constitution expressly required that the company have a minimum of two directors.
8. The defendants rely on the emails between Mr Baker to Mr Brooks on 24 March 2017, 3 April 2017 and 5 April 2017 which I have addressed above. I do not accept that these emails constitute the clear and unanimous agreement of Mango Cobar (through Mr Brooks) to appoint Ms Comino as a director of Tallywalker on 5 April 2017. There is no reference to Tallywalker's other shareholders, Harmat or Pegasus, in these documents. I do not accept that these emails support the purported consent of Harmat or Pegasus to appoint Ms Comino as a, or the sole, director of Tallywalker.
9. There are no emails or other documents in evidence which evince shareholder support of the appointment of Ms Pickstone by the members of Tallywalker. In Mr Baker's cross‑examination, he gave evidence that it was he and Ms Comino who decided to appoint Ms Pickstone.
10. Any assent by a company's members to dispense with the required procedural requirements under the constitution must be informed and must be actual, not merely potential, assent: Hawcroft v Jamieson [2017] NSWSC 1478 at [241] (Gleeson JA). In circumstances where it was not made clear to the members of Tallywalker that Mr Baker was intending to cause Ms Comino (and later Ms Pickstone) to be appointed as sole directors contrary to the express terms of Tallywalker's constitution, I am not satisfied that the email correspondence relied on by the defendants evidences the requisite informed assent that would be required.
11. Here, the requirements of the Tallywalker constitution were not observed in relation to the purported appointments of Ms Comino and Ms Pickstone as directors and Mr Baker was entrusted to notify ASIC of Mr Brooks' appointment which was made in accordance with the requirements of the Tallywalker constitution, but did not do so. In these circumstances, I am satisfied that any presumption or prima facie position as to directorship arising by virtue of the ASIC register is displaced.
12. Had it been necessary to do so, I would find that Ms Comino and Ms Pickstone were not validly appointed as directors of Tallywalker. The plaintiffs have raised sufficient doubt as to the validity of their respective appointments and the defendants have not established that the appointments were validly made. However, as will be seen from what follows, even if I were to accept that Ms Comino and Ms Pickstone were validly appointed as directors in the periods recorded on the ASIC register (which I do not), for the reasons that follow, I find that the documents that they each purported to execute for Tallywalker pursuant to s 127(1) of the Act were not validly executed under s 127(1) or otherwise and did not bind Tallywalker.

12.4.3 Execution of the relevant commercial documents

1. Against that background, I now turn to the evidence in relation to the execution of the relevant commercial documents.

12.4.3.1 The Tallywalker Facility and the Tallywalker GSA

1. I will first address the two key documents that are dated on their face as 6 April 2017 - the Tallywalker Facility and the Tallywalker GSA.
2. In his evidence in chief, Mr Baker said that the handwritten date 6 April 2017 on the Tallywalker Facility was the "effective" date. He said that the first advance under the facility was made to Tallywalker in December 2016, that the document was drafted subsequent to the "drawings" and "we" placed an effective date on the "loan agreements". I infer that Mr Baker used the plural of loan agreements to refer to the Tallywalker Facility and the Tallywalker GSA, both of which bear handwritten dates of 6 April 2017. I take Mr Baker's reference to "we" to encompass those that signed the documents that on their face appear to have been executed on 6 April 2017. All of the persons who executed the documents for the parties to the agreements have been consistently in Mr Baker's camp on the evidence in these proceedings.
3. Prior to being called to give evidence, Mr Baker had prepared and served a proof of evidence in anticipation of seeking a s 128 certificate (which he ultimately obtained). In his proof, Mr Baker asserted that the handwritten date on the documents that he itemised in his proof (but not in his oral evidence) was the date on which he finished drafting the relevant document, but that the execution date was in fact a later date. He was cross-examined on the timing of the execution of the Tallywalker Facility only. The cross-examiner commenced by referring to the fact that he had given a proof of evidence but did not tender the proof or any part of it. As it was, the cross-examiner appeared to be satisfied that the answers given orally were sufficient to yield a response that the cross-examiner was seeking. The cross-examiner did not pursue this line of questioning in relation to the Tallywalker GSA. The findings which follow are based on the answers that Mr Baker gave in his oral evidence. As I have said repeatedly, Mr Baker was not a credible witness on very many issues, I do however accept his evidence in some instances where it is against the defendants' interest. Mr Baker was the moving force in the defendants' camp.
4. In cross-examination, Mr Baker said that the Tallywalker Facility was not executed on the date shown on its face (6 April 2017). He said it was executed on 1 July 2017. The relevant passage in cross-examination was as follows in relation to the Tallywalker Facility:

And are you able to say who prepared it?---I prepared it.

I beg your pardon?---I prepared it.

When did you prepare it?---It was around the time that it was dated.

6 April 2017?---That's correct.

Do you remember - I think you said - perhaps it was yesterday - that you prepared a witness outline. I think you said you typed it. Do you recall that?---Sorry, I'm not sure what your question is. A witness outline - - -

Yesterday, do you remember saying - - -?--- - - - I typed.

- - - in evidence that you were preparing for this case and typed up a witness outline?---I - I produced a witness outline, yes.

Yes, you typed it, did you?---Yes.

Yes. That's right. Could we have a copy of that document - I think it's in the court book, your Honour. No. I wonder if a copy could be provided to the witness. All right. Perhaps without - what I will do is I will put a question to the witness.

Do you recall saying something about the date on which that document was prepared in your witness outline at paragraph 164? I will read it to you?---Yes, please.

Just let me get it in front of me, please. Paragraph 164. I will hand a copy to the witness, if I may, your Honour.

Is the document that I just showed you at page 471 of the Tallywalker court book the document referred to in paragraph 164(a)?---Yes, it is.

So according to this, it was actually executed on 1 July 2017?---Yes, that's what I've indicated there, which is correct. That's right.

But it was dated 6 April 2017?---Well, that was the date that I created the document and I dated the document for that date; that's correct.

So it was - - -?---And by the time - - -

It was backdated; is that right?---Well, no, I - I don't agree that to be the case. I - it took me some time to create these documents, and that was the effective date.

So 6 April 2017 is not the date on which the document was executed, is it?---That's true, yes.

It's the date which you say was the date on which the agreement was intended to have effect?---That's correct.

It was actually dated, though, or executed on 1 July 2017; is that right?---Yes, and I disclosed that in my document; that's right.

Thank you?---In my witness statement.

Thank you. If we could go back to, please, page - put that witness statement or witness outline to one side, please. Could we go, please - - -?---Sure.

- - - back to page 471?---471, yes.

471. And the document was signed by Ms Comino; is that right, on page 494, on behalf of Tallywalker?---Yes. Four-ninety - - -

And signed by Mr Mitropoulos and Mr Watson - - -?---That's right.

- - - on behalf of CLAH?---That's correct.

And you say that they signed that document on 31 July 2017; is that right?---Well, I - I say it was 1 July.

Sorry, 1 July 2017 - - -?---Yes.

- - - is that right?---And - and that would explain the delay.

1. Mr Baker was emphatic in his evidence that the Tallywalker Facility was executed on 1 July 2017. I regard this evidence as being against his interest, in that the effect of the evidence is that the facility was executed by persons who had ceased to be directors of CLAH. I find that the Tallywalker Facility was in fact executed by Mr Watson purportedly as director and company secretary of CLAH and by Mr Mitropoulos purportedly also as director of CLAH on 1 July 2017. I find that the Tallywalker Facility was in fact executed by CLAH on 1 July 2017. I further find that the Tallywalker Facility was purportedly executed for Tallywalker on the same day. There was no suggestion that the parties executed the agreement on different dates. Before turning to the significance of that finding, I will address the execution of the Tallywalker GSA.
2. On its face, the Tallywalker GSA also bears a handwritten date of 6 April 2017. The handwritten date is contextualised in the same way in the Tallywalker GSA as in the Tallywalker Facility. The Tallywalker GSA is said to be "made on 6 April 2017" and the execution block is prefaced by the express statement "Executed as a deed and delivered on the date shown on the first page", being the handwritten date of 6 April 2017 that is inserted on the first substantive page of the agreement. Mr Baker's oral evidence did not address the timing of the execution of the Tallywalker GSA and the plaintiffs' cross-examination of those called who were signatories to the Tallywalker GSA did not touch on this issue. Even so, I infer that the two documents were executed at the same time. Both documents were signed on 1 July 2017. That inference is supported by both agreements having the same parties, the same style of handwritten date, the same handwritten names of the signatories who purported to execute each of the agreements on behalf of the respective parties and the recognition in the Tallywalker GSA that the agreements were to be signed around the same time. Schedule 1, Item 1 of the Tallywalker GSA defines Facility Agreement as a "Loan Agreement between [CLAH] , as Lender, and [Tallywalker], as Borrower, dated on or about the date of this Agreement" (emphasis added).
3. That the two documents were both signed on 1 July, and not on 6 April 2017, is significant.
4. I will first address whether the two documents were validly executed for Tallywalker on 1 July 2017.
5. Both documents were signed by Ms Comino who described herself as "Sole Director/Company Secretary" of Tallywalker and purported to execute the documents for Tallywalker "in accordance with section 127 of the [Act]". For the reasons I have given, I find that Ms Comino was not the sole director of Tallywalker at the relevant time. Even if it be assumed that she was validly appointed as a director and secretary of Tallywalker during the period from 5 April 2017 to 11 December 2017, she was not the sole director during this period because Mr Brooks was a director from 12 March 2017. In circumstances where Mr Baker who was in effective control of CLAH throughout the period when it was dealing with Tallywalker knew that Mr Brooks was a director of Tallywalker and that the procedures required under the Tallywalker constitution had not been observed in relation to Ms Comino's appointment or in relation to Tallywalker's entry into the Tallywalker Facility, I find that CLAH is precluded from relying on the statutory assumption that arises under s 129(5) of the Act: s 128(4). For completeness, although the defendants rely on the documents as having been executed in accordance with s 127(1) of the Act, I further find that the Tallywalker Facility and Tallywalker GSA were not otherwise validly executed by Tallywalker by the means provided in Tallywalker's constitution.
6. I now turn to address whether the two documents were validly executed for CLAH on 1 July 2017.
7. As at 6 April 2017, the company search for CLAH records that Mr Dainton, Mr Mitropoulos and Mr Watson were directors and Mr Watson was the company secretary - at this time, CLAH was an unlisted public company and Mr Baker was an undischarged bankrupt.
8. Shortly after 6 April 2017, the following changes occurred. Mr Baker's bankruptcy ended on 17 April 2017. CLAH lodged a constitution with ASIC on 12 May 2017. This is revealed by the company search, however CLAH's constitution is not in evidence. There is no evidence as to what, if anything, the constitution of CLAH provided for in terms of authorising CLAH's directors to enter into agreements such as the Tallywalker Facility and the Tallywalker GSA. There is no reliable evidence that any resolution was passed by the board or shareholders of CLAH authorising entry into the Tallywalker Facility or the Tallywalker GSA. In reaching this conclusion, I have not overlooked the evidence given by Mr Mitropoulos, including that given on affidavit which was read in the proceeding. There was a stark disconnect between the tenor of Mr Mitropoulos' evidence given by way of affidavit and his oral evidence. That may be illustrated by Mr Mitropoulos' accounts of CLAH's corporate governance during his directorship. In his affidavit, he recounted how Mr Baker, as purchasing officer and manager of CLAH, would report to the board in relation to a proposed loan, which the directors would then evaluate and decide whether to make an offer of finance, including by reference to whether the loan presented a level of risk that was tolerable to CLAH and the borrower's proposed exit strategy. The directors would then advise Mr Baker whether the loan was approved by the board and would execute the loan documents. The detailed account given on his affidavit did not accord with the evidence he gave orally. In his oral evidence, which I regard as being more reliable, it was clear that Mr Mitropoulos had only a passing superficial familiarity with board functions and corporate decision making by way of resolutions. When asked about whether minutes were kept of CLAH board meetings, Mr Mitropoulos gave the following response:

Now, do you recall whether minutes of meetings of the directors were kept?---Yes, the MD, Craig Watson, looked after the meetings - the - the meetings and the minutes.

Yes. And do you recall whether resolutions, written records of resolutions were kept?---We kept - kept minutes. I mean, by resolutions, what do you mean: corporate resolutions, or - or - - -

Resolutions of the board of the company?---Yes. Major notes on activities and what the board discussed were covered in those documents.

1. The unreliability of his affidavit evidence is underscored by the dearth of CLAH company records that would be expected to be produced if the process he described in his affidavit was in fact followed. On Mr Mitropoulos' account of CLAH's process for approving loans, each loan proposed by Mr Baker should, in the ordinary course, generate at least directors' meetings minutes, resolutions, board papers, the proposed loan statement and any other documents relating to the terms of the proposed loan. None of these documents are in evidence for any of the loans in issue in these proceedings.
2. Returning to the documents themselves, on their face, the execution blocks of the Tallywalker Facility and the Tallywalker GSA suggest that CLAH has relied on the statutory means of execution provided for in s 127(1) of the Act rather than another source of authorisation. That being the case, it puts into sharp focus the question of whether the circumstances outlined in s 127(1) of the Act are established on the evidence. Prior to 1 July 2017, the date on which Mr Baker maintains that the Tallywalker Facility was in fact executed, CLAH became a proprietary company. That occurred on 23 June 2017.
3. As at 1 July 2017, the date on which Mr Baker maintains that the Tallywalker Facility was executed, the company search for CLAH records that Ms Comino was the sole director and company secretary. She assumed this position upon the retirement of Mr Dainton, Mr Mitropoulos and Mr Watson which is recorded in the company search as having occurred on 30 June 2017, which as I have noted was also the date of Ms Comino's appointment.
4. The defendants take a pleading point in relation to the challenge to the valid execution by CLAH of the Tallywalker Facility. Given that the evidence that informs the submission crystallised in cross-examination, I do not consider it appropriate to dispose of the issue on a pleading point. I do not think the point is well taken.
5. The substantive response raised by the defendants is that the Tallywalker Facility was executed with CLAH's implied authority and on behalf of CLAH, noting that Ms Comino, the sole director of CLAH as at 1 July 2017, signed the agreement as sole director of Tallywalker. However, she did not sign for CLAH. Her evidence as to signing for Tallywalker was reconstructed. In effect she did not remember when she signed the documents, but she assumed she did so around the time she became a director of Tallywalker. Her evidence, extracted below, is that she "would have signed" because the Tallywalker shareholders had arranged it. I do not infer, in circumstances where on the defendants' case the documents were executed by CLAH utilising the statutory mechanism supplied by s 127(1) of the Act, that the validity of the execution which Mr Baker positively asserts was on 1 July 2017 falls to be determined by reference to information that was extraneous to that which appeared on the face of the Tallywalker Facility and the Tallywalker GSA. The fact that Ms Comino signed for Tallywalker cuts against Tallywalker being able to rely on the statutory assumption as to valid execution pursuant to s 127(1) of the Act created by s 129(5) because Ms Comino must be taken to know that the two persons purporting to execute the document as directors of CLAH had ceased to hold office as directors of CLAH the preceding day, being the same day as she became a director and company secretary. Ms Comino must be taken to know that at the time of her appointment, the other directors of CLAH at that time were Mr Dainton, Mr Watson and Mr Mitropoulos. Ms Comino must also be taken to know that each of Mr Dainton, Mr Watson and Mr Mitropoulos ceased to be directors of CLAH on 30 June 2017, with the consequence that Ms Comino became the sole director of CLAH on 1 July 2017, the day the documents were signed. By s 128(4), Ms Comino is not entitled to make an assumption in s 129(5) as to valid execution of the documents on the basis that at the time of the dealings, she knew or suspected that the assumption was incorrect.
6. The defendants further submit that it is plain from CLAH's conduct in this proceeding that CLAH considers itself bound by the terms of the Tallywalker Facility and does not resile from its obligations under that facility. That elides the issue as to whether the Tallywalker Agreement was validly executed by CLAH such that CLAH was bound by it as at the date it was executed. As mentioned above, Mr Baker was not cross-examined on the timing of the execution of the Tallywalker GSA which also bears the date of 6 April 2017. It was not put to Mr Baker, Ms Comino or Mr Mitropoulos in cross-examination that the Tallywalker Facility and the Tallywalker GSA were signed at the same time, although that is a matter that I infer from the face of the documents when examined together for the reasons I have given above.
7. It was not put to Mr Mitropoulos that the Tallywalker Agreement was signed on a date other than the date which appears on the face of the document. In cross-examination, Ms Comino was asked whether it was "possible" that she executed the Tallywalker Facility on 1 July 2017 even though it had the handwritten date 6 April 2017. Her answer was equivocal when compared to the emphatic evidence that Mr Baker gave as to the date of execution of the Tallywalker Facility being 1 July 2017. The effect of Ms Comino's evidence was that she knew she became a director of Tallywalker in early April and that she "would have signed then, around then, but again, I don't remember". I place little weight on Ms Comino's evidence. She did not remember and was reconstructing what she thought would have happened relative to when she thought she became a director of Tallywalker. She did not arrange for the document to be prepared and said someone gave it to her to sign and that the "shareholders would have organised this".
8. For these reasons, I find that the Tallywalker Facility and the Tallywalker GSA were not executed on 6 April 2017. This date was inserted on the documents in order to backdate the documents. The date was referred to as the date of the documents in various other documents including for example the corresponding PPSA registration dated 27 March 2018, the legal advice provided to Overland dated 7 February 2019 and the deed appointing the Tallywalker Receivers dated 30 July 2020. I do not accept Mr Baker's explanation that 6 April 2017 was inserted as the "effective" date of the documents. It is not necessary for the determination of the issues arising in these proceedings to make a positive finding as to the reason why the documents were backdated. It is sufficient to find, as I do, that the documents were not executed on 6 April 2017. The documents were executed on 1 July 2017. In those circumstances, I find that the Tallywalker Facility and the Tallywalker GSA were not validly executed by CLAH pursuant to s 127(1) of the Act as neither of the signatories were directors of CLAH as at the date the documents were in fact signed. There is no evidence as to the signatories being authorised to sign the documents on behalf of CLAH otherwise than as purported directors of CLAH relying on the statutory means of execution supplied by s 127(1) of the Act.

12.4.3.2 The Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA

1. I now turn to the next tranche of key documents. They comprise two amended versions of the Tallywalker Facility and an amended version of the Tallywalker GSA.
2. It is necessary to consider whether the subsequent "restatement" of the Tallywalker Facility and the amendment of the Tallywalker GSA impacts whether the later arrangements are valid even if the early arrangements are not.
3. The defendants rely on the Amended Tallywalker Facility, the Tallywalker GSA (as amended by the Amended Tallywalker GSA) and the Overland GSA as conferring power on CLAH to appoint the Tallywalker Receivers. As mentioned, the validity of the execution of the Overland GSA is not the subject of a challenge by the plaintiffs. The defendants' fallback position is that if these amended versions of the Tallywalker documents were not properly executed, then the Tallywalker Facility and Tallywalker GSA as originally executed supply the relevant appointment power. I reject the defendants' fallback submission which is premised on the valid execution of the Tallywalker Facility and Tallywalker GSA. I have found that each of those documents was not validly executed when they were signed on 1 July 2017.
4. Relevantly, the execution block for the later iterations of the documents also states that the document is executed by Tallywalker in accordance with s 127(1) of the Act by its sole director.
5. These three documents were purportedly executed for CLAH and for Tallywalker by persons firmly in Mr Baker's camp. Mr Brooks, who as I have found was a director of Tallywalker at the relevant time, was not aware that the documents were signed. Ms Pickstone (Mr Baker's partner) relevantly signed the Amended Tallywalker Facility purportedly for Tallywalker. Ms Pickstone also separately signed this agreement as "sole Director" of Overland and Mr Baker signed as "sole Director" of CLAH. Ms Comino relevantly signed the Further Amended Tallywalker Facility purportedly on behalf of Tallywalker. Ms Comino also separately signed the Further Amended Tallywalker Facility purportedly as "sole Director" of Overland and Mr Baker signed as "sole Director" of CLAH. Ms Comino also signed the Amended Tallywalker GSA ostensibly in her capacity as sole director of Tallywalker (as Grantor) and Mr Baker signed in his capacity as sole director of CLAH (as Secured Party).
6. The plaintiffs contend that the Tallywalker facility and security agreements on which the defendants rely were not executed by Tallywalker in accordance with the requirements of s 127(1) of the Act or otherwise in accordance with Tallywalker's constitution. The plaintiffs' challenge includes a challenge to the Tallywalker signatories' entitlement to act in the capacities in which they respectively purported to act in signing the documents.
7. Before considering the challenge to the validity of these documents in detail, it is necessary to address the date on which the documents were purportedly executed: the Amended Tallywalker Facility bears the date 27 March 2018, the Further Amended Tallywalker Facility bears the date 28 August 2018 and the Amended Tallywalker GSA bears the date 28 August 2018.
8. Mr Baker's evidence in relation to the date shown on the face of these documents and the date on which they were in fact purportedly signed was similar to the evidence he gave in relation to the date shown on the face of the Tallywalker Facility. He said the date shown on the face of these documents was the "effective date", not the date on which the documents were signed.
9. In reality, the documents were backdated to create the impression that they were entered into on an earlier date than the date on which they were purportedly signed. Unlike with the Tallywalker Facility where Mr Baker was firm in his evidence that the agreement was signed on 1 July 2017, Mr Baker could not recall when the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA were in fact signed. After some equivocation, Mr Baker acknowledged that the documents were in the process of being prepared around 27 September 2018. This was the day on which the relevant vesting period expired in respect of the security interests granted in favour of CLAH by Overland pursuant to the Overland GSA (PPSR registration number 201803270057700 dated 27 March 2018) and by Tallywalker pursuant to the Tallywalker GSA (PPSR registration number 201803270034191 dated 27 March 2018). There having been no declaration of insolvency made in the relevant six month period, the security interests were no longer at risk of vesting (and becoming void) under s 588FL of the Act. It was also the day on which Mr Baker emailed Mr McDonald asking him to review and advise if any variations are required in order to fully secure CLAH's loans to each of Overland and Tallywalker.
10. Mr McDonald features in other parts of the evidence as Mr Page's trustee in bankruptcy at the same time as he was practising as a barrister. He acted as a barrister for Ms Page in proceedings in which Ms Page sought to set aside the appointment of Mr Scott as liquidator of Parkway One.
11. Mr Baker was taken to the email he had sent to Mr McDonald dated 27 September 2018 in which Mr Baker sought legal advice on CLAH's loans to Tallywalker and Overland. Mr Baker's email (as written) is as follows:

Hi Geoff,

Further to our telephone conversation this morning I thought that I would forward copies of the loan documents in respect of the above companies for you to review and advise if any variations are required in order to fully secure CL Asset Holdings' loans to each Overland Mining Services Pty Ltd and Tallywalker Pty Ltd.

The following documents are attached:

1. Loan Agreement between CL Asset Holdings Pty Ltd and Tallywalker Pty Ltd

2. Loan Agreement between CL Asset Holdings Pty Ltd and Overland Mining Services Pty Ltd

3. GSA between CL Asset Holdings Pty Ltd and Tallywalker Pty Ltd

4. GSA between CL Asset Holdings Pty Ltd and Overland Mining Services Pty Ltd

5. Deed of Guarantee where Tallywalker Pty Ltd is the Guarantor of the loan to Overland Mining Services Pty Ltd

6. Deed of Guarantee where Overland Mining Services Pty Ltd is the Guarantor of the loan to Tallywalker Pty Ltd

7. Deed of Variation between CL Asset Holdings Pty Ltd and Tallywalker Pty Ltd

8. Deed of Variation between CL Asset Holdings Pty Ltd and Overland Mining Services Pty Ltd

As mentioned during our meeting the other day, Tallywalker Pty Ltd holds the assets and employs the staff, whilst Overland Mining Services Pty Ltd is the services company and its only assets are its debtors. Each of the companies are completely up-to-date in terms of taxes, GST / BAS, PAYG and Superannuation payments. Also, all income from services provide to South32 is invoiced and received by Overland Mining Services Pty Ltd. Tallywalker Pty Ltd at this stage does not generate nor receive any income.

In terms of outstanding loans to CL; Tallywalker has an outstanding loan balance of approximately $3m plus interest and Overland Mining Services has an outstanding loan balance of approximately $50 plus interest. So considering that the income is received by Overland, CL is reliant on the guarantee provided by Overland in respect of the Tallywalker loan for CL to be repaid.

I look forward to your advices in due course.

Kind regards,

Theo Baker

1. Conspicuous in their absence from the list of documents set out by Mr Baker in his email to Mr McDonald is any reference to the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA. In his email, Mr Baker is asking Mr McDonald for advice on CLAH's loans (plural) to "each" of Overland and Tallywalker. The way in which Mr Baker has expressed himself strongly suggests that at the time he was writing, the two loan facilities were separate - one with Overland and one with Tallywalker. That is consistent with there being no reference in his email to the Amended Tallywalker Facility purportedly dated 27 March 2018 which consolidated these two loans into one loan facility with Overland and Tallywalker as joint and several borrowers.
2. Mr Baker says that he attaches "the loan documents in respect of the above companies for you to review and advise if any variations are required in order to fully secure [CLAH's] loans to each [Overland] and [Tallywalker]". The email post-dates the date shown on the face of each of the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA. If those three documents were in place at the time that Mr Baker emailed Mr McDonald on 27 September 2018, then it beggars belief that he would not have referred to each of them. He did not do so.
3. Confronted with his email in cross-examination, Mr Baker gave evidence to the following effect. First, he agreed that he did not refer to the documents in his email to Mr McDonald. He said that the dates shown on these documents were the effective dates, not the dates on which the documents were signed. I interpolate to note that there is no textual support for this characterisation of the date shown on the face of the documents in the documents themselves. To the contrary, the documents are expressed to have been made on each of these dates.
4. Mr Baker said that when he emailed Mr McDonald on 27 September 2018, the documents were in the process of being prepared. Yet these documents came to be dated as having been made considerably earlier. As I have said Mr Baker equivocated when it was put to him that the documents post-dated 27 September 2018. He complained that he did not like the term "backdated". He said he did not believe the document dated on its face March 2018 was created after 27 September 2018 but acknowledged that it was created "during that period". He was taken to the document in cross-examination. The following passage is illuminating, particularly in the context where 27 March 2018 is the date on which the Overland GSA and Tallywalker GSA were registered and these securities were ultimately maintained as the security for what became the restated combined loan to Overland and Tallywalker under the banner of the Amended Tallywalker Facility:

"27 March 2018"?---Yes.

That wasn't the date of the document, was it?---That was the effective date of the document.

Wasn't the date on which the document was executed, was it?---That's correct.

And, well, did you instruct someone to prepare this doc?---I did, yes.

When was that?---I can't recall the exact date.

Was it roughly in September 2018, for example?---It may have been.

Why wasn't it prepared in March 2018?---Well, it was after a review of the documents, and I - it was considered that, maybe, we create a - a consolidated document and increase the credit limit, so it was after a review of the existing documentation.

It was considered by whom?---Well, it was based on the advice that I received.

No. It was considered by whom? You said, "It was considered"; who considered it?---Well, I considered it.

You. There was no one else, was there?---No.

No one else considered it other than you?---Well, other than - Mr Page was aware of the loan facilities, yes.

1. The last response of this extract was clearly an attempt by Mr Baker to qualify the concession that he made in giving the penultimate answer reproduced in this extract. I reject Mr Baker's assertion if by it he meant that Mr Page was aware of the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA at the time that Mr Baker was taking steps to shore up CLAH's security in late September 2018 and thereafter.
2. The balance of Mr Baker's answers are to be understood in the context of the advice that Mr Baker was seeking from Mr McDonald at this time. Mr Baker was seeking a review of the existing agreements that he had arranged to be in place between CLAH and Tallywalker and CLAH and Overland. Notably those arrangements did not at that stage include the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA. Mr Baker was asking for advice as to whether any variations were required in order to fully secure CLAH's loans to each of Overland and Tallywalker. He was seeking that advice in late September 2018 at which time he instructed Mr McDonald that Tallywalker had an outstanding loan balance of approximately $3 million plus interest and Overland had an outstanding loan balance of "approximately $50 plus interest". Mr Baker drew to Mr McDonald's attention that the income generated by the business was received by Overland which meant that CLAH was reliant on the guarantee provided by Overland in respect of "the Tallywalker loan" for CLAH to be repaid.
3. Assuming momentarily that the raft of agreements were binding on Tallywalker, then prior to the creation of the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA, Mr Baker perceived that CLAH's ability to enforce the debts owed by Tallywalker against Overland may be inadequate. As mentioned, prior to the Amended Tallywalker Facility, CLAH had independent facilities and security agreements with each of Tallywalker and Overland. The facility limit of the Tallywalker Facility was $4,000,000 and the Overland Facility was $1,000,000. Mr Baker's communications with Mr McDonald on 27 September 2018 reveal that Mr Baker was concerned that the majority of CLAH's loans were owed by Tallywalker, which did not generate any income. Overland was the entity which received income for the services provided to South32 and was the better source from which CLAH could expect to recover the loans it had made (principally to Tallywalker). Mr Baker notes in his email to Mr McDonald that CLAH was reliant on the guarantee provided by Overland in respect of the Tallywalker loan in order for CLAH to be repaid. I infer that Mr Baker feared that the separate facilities and agreements with each of Tallywalker and Overland would impede CLAH's ability to call on Overland to pay Tallywalker's debts without first seeking to recover from Tallywalker. Mr Baker set about improving CLAH's position in this regard by revising the agreements that were ostensibly in place. He says he did so after conducting a review and receiving advice.
4. Mr Baker did this relevantly by combining the separate Overland Facility and the Tallywalker Facility as a single facility and making each of Tallywalker and Overland co-borrowers with joint and several liability in respect of all borrowing under the new joint facility.
5. The advice that Mr McDonald gave to Mr Baker is not reproduced in the evidence. It appears that the advice was likely oral. I infer that the advice was in fact received based on Mr Baker's evidence. The email chain that is in evidence includes as an email from Mr McDonald in response to Mr Baker's email requesting advice. Mr McDonald's email is dated 8 October 2018. In this email, Mr McDonald says:

Theo

I will make sure I have reviewed the email below by the time we talk, probably next week.

I understand that Nathan might be moving on to another JV company, which would probably be the catalyst for Overland having to close. If so, Overland might as well assist him to move on and allow for a smooth transaction. It might pick up $5,000 goodwill for helping him out. Better than nothing.

1. Based on Mr McDonald's response, I infer that Mr Baker was still awaiting advice at the time Mr McDonald sent this email. I further take from Mr McDonald's email that Mr McDonald was intimating that CLAH had a significant potential exposure. For that reason, Mr McDonald suggested that Mr Baker consider facilitating Mr Brooks' departure as a means of picking up say $5,000 for Overland for goodwill and that this would be "[b]etter than nothing".
2. Before examining the steps that Mr Baker took to address his concerns as to CLAH's potential exposure in relation to the substantial loan that it claimed to have made to Tallywalker, I will first address in brief terms the evidence as it stood in relation to the relationship between Mr Baker on the one hand and Mr Page, Mr Brooks and Dr Munro on the other hand at around this time.
3. Each of the witnesses who were cross-examined in relation to the events that formed part of the context for the creation of the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA gave competing versions of the relevant events. The conflicting versions of events are not readily reconciled through the lens of these proceedings. Reconciling the allegations and counter-allegations is not necessary for the determination of the relief sought in these proceedings. The parties have introduced a miscellany of issues which, on the findings that I have made, are extraneous to the determination of the issues with which these proceedings are centrally concerned - namely, whether the appointment of the relevant receivers, in this case the Tallywalker Receivers, was valid.
4. There are significant inconsistencies in relation to the dates and details of meetings and conversations involving Mr Baker and others and the oral agreements that are alleged to have been made as a result. The inconsistences are manifest, even between the evidence of witnesses who were in the plaintiffs' camp. While it is common ground that Dr Munro and Mr Brooks were brought into various business dealings or arrangements by Mr Baker and Mr Page, the true nature of those dealings or arrangements remains opaque. That is as much because of the effluxion of time and the oft observed phenomenon of a witness' recollection of events being influenced by hindsight shaped, or more properly distorted, through the lens of the litigation as it is because of patent dishonesty. Mr Brooks' evidence, and to a lesser extent Dr Munro's evidence, is tainted by the first phenomenon whereas Mr Page's and Mr Baker's evidence is more problematic for the latter reason. The evidence establishes that Mr Baker and Mr Page were dishonest in their dealings with each other, and individually and collectively with third parties. The evidence given by each of them in these proceedings is generally not reliable. Their oral evidence did not reflect the truth of their dealings with each other. In reaching that conclusion, I do not overlook that their dealings with each other and others were ostensibly conducted under the guise of being dealings between various companies which despite the de jure position were in reality controlled by one or the other of them. Their evidence was shaped by and directed to advancing their respective interests as they perceived their respective interests to be at the time these proceedings were heard. It is in this context that I make the following findings.
5. In late 2018, the personal and business relationships between Mr Page and Mr Brooks on the one hand and Mr Baker on the other hand soured. Their mutual business ventures were under considerable financial pressure and facing complaints from third party creditors who had not been paid and were threatening to take action. The financial difficulties facing Overland and Tallywalker are captured in the instructions given by Overland to Diamond Conway in February 2019, which are extracted at paragraph [1739] below.
6. The personal pressure felt by Mr Brooks during this time is clear from his insistence that Mr Baker ensure that Overland's creditors were paid. Mr Brooks was the only one of the four men who had a longstanding connection in the mining industry and who was concerned with preserving his reputation in the industry. Overland's creditors were Mr Brooks' friends and established suppliers in the mining industry. Mr Brooks stood to lose his good standing in the industry if Overland's third party creditors were not satisfied. The degree of personal animus that attended the dealings between Mr Baker and Mr Brooks is evidenced by the fact that Mr Page described Mr Brooks as being "quite irate with Theo" at one of the Qantas Club meetings around this time. Mr Brooks similarly described his meeting with Mr Baker as getting "very heated".
7. Mr Brooks maintains that Mr Baker assured him that Overland would pay all of its creditors upon receipt of a substantial payment which was due from South32, which was expected to be paid in around November 2018. Mr Baker denied that he had told Mr Brooks that he personally or through CLAH would guarantee the payment of the third party creditors. Mr Baker denied giving any such assurance or guarantee of the payment of Overland's third party creditors. He was particularly hesitant in answering questions on this topic during cross‑examination. He said this was because he was trying to answer "in the best way possible". When pressed to answer "yes" or "no", Mr Baker ultimately answered "no". The evidence in relation to South32 is far from comprehensive and is supported by very little in the way of contemporaneous documents. South32 appears to have been one of Overland's first drilling contracts. South32 operated a mine site in Cannington, Queensland. The South32 contract appears to have commenced in early 2018_._ When the substantial payment from South32 did eventually come in, in around February 2019, it was paid to CLAH and was not applied to meet Overland's third party creditors.
8. As I have described earlier in these reasons, Mr Platcher, the then recently appointed sole director of Overland who was an acquaintance of Mr Baker but was otherwise not known to Mr Brooks, caused funds received from South32 to be paid to CLAH. The justification for paying the South32 payment to CLAH was premised on Overland being liable, assuming the valid execution of the Amended Tallywalker Facility on 27 March 2018. As I have mentioned, Overland's liability was the subject of legal advice commissioned by Mr Platcher from Mr Carkagis of Diamond Conway, who also features in the evidence as CLAH's solicitor. I note that the advice provided by Mr Carkagis to Mr Platcher was based on instructions that there were no facts or circumstances of which Overland was aware which would impugn the validity or enforceability of the relevant agreements.
9. The instructions upon which Mr Carkagis' advice was based are summarised as follows in Schedule 3 to the advice:

Schedule 3 - Your Instructions

1. [Overland] provides mining drilling services to third parties, for example [South32];
2. [Tallywalker] provides drilling equipment to [Overland] under Relevant Documents [1] and [2] (hire agreements) for the provision of the services particularised in the preceding paragraph;
3. [Overland] and [Tallywalker] utilize the Facility for the general purposes of the Business;
4. [Overland's] secured and unsecured creditors are those set out in Relevant Document [8], and unless disclosed by Relevant Document [6], [Overland] has no other secured creditors;
5. [Overland] presently has ≈$820,000.00 cash at bank and no other significant assets;
6. You are of the opinion that the Business has been tracking poorly, in effect since its inception. This is as a result of various factors, including (without being exhaustive):

a. delays associated with the [South32] contract; and

1. fire sustained to [Tallywalker's] drill rig resulting in alternate equipment being hired at significant costs;

2. further to the preceding paragraph, You are of the opinion that the future prospects and profitability of the Business are low, namely that:

   1. the Business has failed to secure any contracts for the provisions of its services, accordingly its revenue and cash flow projections in the short to medium term are poor;
   2. key assets of the Business, namely drilling rigs, are damaged and not in serviceable condition, or at least not in serviceable condition without significant capital expenditure;

3. [Overland] is a defendant and cross-claimant in the DC Proceedings. You understand from your legal advisors in respect of the DC Proceedings that judgment against [Overland] is likely to be given;

4. You understand the defaults particularised in the default notice (Facility Document [13]) are true and correct.

1. The facility documents are defined in Schedule 1 as follows:

1. The relevant documents are defined in Schedule 2 as follows:

Equipment hire agreement between [Tallywalker] (as owner) and [Overland] (as hirer)

Equipment hire agreement between [Tallywalker] (as owner) and [Overland] (as hirer)

1. The defined terms used in this extract are defined in Schedule 4 as follows:

means the businesses carried on by [Overland] and [Tallywalker], namely those particularised at paragraph 1 and 2 of Schedule 3.

means proceedings instituted in the NSW District Court by DRC Drilling Pty Ltd ACN 169 768 192 against [Overland] and [Overland Holdings Group], being proceedings 2018/00304383.

means the loan facility advanced by CLAH to [Overland]and [Tallywalker] under Facility Document [7].

means the documents specified in Schedule 1 to this letter.

mean Overland Mining Services Pty Ltd ACN 108 790 021.

means the documents specified in Schedule 2 to this letter.

1. A week after the South32 payment was paid to CLAH, Mr Platcher placed Overland into voluntary liquidation. The effect of this payment from Overland to CLAH was to leave the other creditors of Overland, whom Mr Brooks maintains that Mr Baker had promised would be paid, unsatisfied.
2. It is in this context that the actions taken by Mr Baker in causing the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA are to be understood.
3. Although Mr McDonald's advice is not in evidence, I find based on Mr Baker's answer that is extracted at paragraph [1725] above that he did receive that advice sometime after 8 October 2018. I further infer that upon receiving that advice Mr Baker then set about the process of "revising" the agreements which had been signed up to that point in time including by increasing the credit limits and incorporating CLAH's dealings with Overland into the arrangement which ostensibly covered CLAH's dealings with Tallywalker. Mr Baker says that he did this by instructing someone to prepare the documents. Although Mr Baker's answer was given in respect of the Amended Tallywalker Facility that came to bear the date 27 March 2018, I infer from the context that Mr Baker similarly gave instructions at around the same time for the preparation of the documents that came to bear the date 28 August 2018. I find that Mr Baker initiated that process sometime after 8 October 2018 and caused each of the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA to be backdated at the time they were signed.
4. Mr Baker did this as a means of improving CLAH's position because of the concern that he had communicated to Mr McDonald, namely that the majority of CLAH's exposure was to Tallywalker which did not have an income stream and accordingly CLAH was reliant on the guarantee provided by Overland in respect of the Tallywalker loan for CLAH to be repaid. It was this process that led to the production of the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA. I infer that these documents were not prepared until after about 8 October 2018 and were backdated for the purpose of minimising CLAH's potential exposure should the agreements be challenged. It will be recalled that the South32 payment was anticipated to be made in November 2018 and Mr Baker would have been well aware that there was an immediate prospect of Overland becoming insolvent if default notices were issued and the whole of the debt claimed by CLAH against Overland and Tallywalker was called in.
5. Based on the growing tension between Mr Baker and Mr Page and Mr Brooks, the imminent anticipated receipt of the substantial South32 payment and that Mr Baker's concern was to improve CLAH's position by ensuring that it could claim on Overland, I find that it is likely that the documents were prepared and signed relatively shortly after 8 October 2018 at which time they were backdated as having been signed on 27 March 2018 and 28 August 2018 respectively.
6. The timing of these documents must be assessed relative to the appointment of Mr Platcher as the sole director of Overland and Mr Platcher's subsequent action in placing the company in voluntary liquidation. On 1 October 2018, shortly before the winding up of Overland on 13 February 2019, Mr Baker arranged for the appointment of Mr Platcher as the sole director of Overland and did not inform Mr Brooks of Mr Platcher's appointment. On 7 February 2019, a week before putting the company into voluntary liquidation, Mr Platcher caused Overland to pay to CLAH $819,600, which is alleged to have been derived from the final payment due to it from South32 for mining services, following receipt of the written advice from Mr Carkagis of Diamond Conway to the effect that CLAH had a valid and enforceable facility and security against Overland.
7. As mentioned, the relevant facility and security against Overland which are the subject of this advice include the Amended Tallywalker Facility, Further Amended Tallywalker Facility and Overland/Tallywalker GSA. The legal advice was provided on the basis that they were validly executed on the date shown on the face of each document. The legal advice is dated 7 February 2019. It refers to a notice of default being served by CLAH on Overland and Tallywalker on 29 January 2019, and by virtue of that notice, CLAH called up the whole of the outstanding amount under the Amended Tallywalker Facility.
8. Accordingly, to the extent that the validity of these documents turns on the date on which they were executed, I will assess that question on the basis that the documents were purportedly signed shortly after 8 October 2018 and likely within a few weeks of that date. From the steps taken by CLAH to issue a notice of default in January 2019, I infer that the three documents were signed before that notice was issued to Overland and Tallywalker on 29 January 2019.
9. I am satisfied that the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA were not validly executed. My reasons are as follows.
10. First, I find that Mr Baker's knowledge in relation to the affairs of Tallywalker, including that on 12 March 2017 it had adopted a constitution and appointed Mr Brooks as a director and the circumstances in which the documents were purportedly signed for Tallywalker after 8 October 2018 and backdated at the time they were signed, is properly attributed to CLAH. Mr Baker controlled CLAH throughout this period notwithstanding he was not formally appointed as a director until 23 January 2018. If the conditions in s 127(1) of the Act were satisfied (which they were not), CLAH would not have been entitled to make the assumption in s 129(5) as to valid execution of the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA because at the time these documents were purportedly signed for Tallywalker, CLAH through Mr Baker knew, or at worst suspected, that the relevant assumptions were incorrect: s 128(4).
11. Second, during the period from 17 March 2018 to 17 March 2019, Tallywalker did not have a company secretary. The ASIC records reveal that Charlie Comino (Ms Comino's husband and Mr Baker's brother-in-law) ceased to be company secretary on 16 March 2018 and that Dr Munro was not appointed as the company secretary until 18 March 2019. In the intervening period, Tallywalker did not have a company secretary. That is significant because as the legislation stood at the relevant times, s 127(1) of the Act did not provide a means by which a company could execute a document by its sole director in circumstances where it had no company secretary. That is what was purportedly done for each of the Amended Tallywalker Facility, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA - all of which were purportedly signed at some time in the period during which Tallywalker did not have a company secretary. The execution block for Tallywalker on each of these documents stated that Ms Pickstone or Ms Comino had executed the relevant document as "sole Director" and "in accordance with section 127 of the [Act]". Even if Ms Pickstone and Ms Comino were properly appointed as the sole director of Tallywalker at the time they in fact signed the documents (which they were not), s 127(1) of the Act did not authorise them to execute the document in circumstances where the company did not have a company secretary. Section 127 does not apply to the purported execution of these documents. The assumptions in s 129 are not engaged. Similarly, I note that Overland did not have a company secretary during the period 16 March 2018 to 1 October 2018 and the same analysis would apply to Overland's purported execution of the relevant documents.
12. Third, the Amended Tallywalker Facility, purportedly executed by Ms Pickstone on behalf of Tallywalker as director on 27 March 2018, was in fact signed by her after 8 October 2018. At the time Ms Pickstone purported to sign the document, she was not a director of Tallywalker. The ASIC register records that she had ceased being a director of Tallywalker on 19 June 2018. In these circumstances, it is not necessary to determine whether Ms Pickstone's appointment as a director of Tallywalker was otherwise valid in the period during which she was recorded as a director of Tallywalker on the ASIC register. If it was necessary to do so, I would find that the evidence does not support a finding that Ms Pickstone was validly appointed. CLAH is fixed with Mr Baker's knowledge and would in any event be precluded from relying on the assumptions by s 128(4) if, contrary to my conclusion, s 127(1) was engaged.
13. Fourth, the Further Amended Tallywalker Facility and the Amended Tallywalker GSA were both signed by Ms Comino in her purported capacity as sole director of Tallywalker. The ASIC register states that Ms Comino was a director of Tallywalker in the period when it is likely that these documents were signed, that is after 8 October 2018 and before 29 January 2019. Leaving to one side the absence of evidence to support a finding that her appointment was validly made in accordance with the Tallywalker constitution, it is clear that she was not the sole director in this period because Mr Brooks was a director in this period, notwithstanding that his appointment was not notified to ASIC. The documents were not signed by Mr Brooks. The conditions in s 127(1) were not satisfied and CLAH cannot take the benefit of the assumption in s 129(5) because it is fixed with Mr Baker's knowledge and is precluded from relying on the assumptions by s 128(4) even if these documents appear on their face to have been signed in accordance with s 127(1).
14. Finally, the defendants rely on the documents having been executed for Tallywalker pursuant to s 127 of the Act. I am satisfied that the documents were not validly executed for Tallywalker pursuant to s 127 of the Act for the reasons given above. For completeness, I further find that the documents were not otherwise validly executed in accordance with Tallywalker's constitution which required two directors to sign a document for it to be executed on behalf of Tallywalker without affixing the company seal (cl 28.5(a)). Mr Brooks, who I have found to have been a director of Tallywalker at the relevant time, was not a signatory to the Amended Tallywalker Facility, Further Amended Tallywalker Facility and/or the Amended Tallywalker GSA. I make that finding for the same reasons as I have given above in relation to the execution of the Tallywalker Facility and the Tallywalker GSA.
15. For these reasons, I am not satisfied that any of the Tallywalker facility agreements were validly entered into and accordingly, the appointment of the Tallywalker Receivers, in reliance on the power vested in CLAH under the agreements that I have found to be invalid, is also invalid. The context in which the documents were prepared and signed strongly suggests that these documents were not legitimate commercial transactions, but were directed to CLAH gaining an advantage over other creditors in circumstances that were highly suspicious.

12.5 Issues 30 and 31 - Was the power to appoint receivers under the relevant agreements enlivened as at the date the Tallywalker Receivers were appointed?

1. These issues are directed to the contractual power of appointment contained in the Tallywalker GSA and/or the Amended Tallywalker GSA being enlivened as at the date the Tallywalker Receivers were appointed. The necessary antecedent issue is whether the agreements by which the power of appointment was purportedly conferred on CLAH were validly executed so as to bind Tallywalker. In appointing the Tallywalker Receivers, CLAH relied on the Tallywalker GSA (as amended by the Amended Tallywalker GSA on 28 August 2018). As noted above, the amendments to the Tallywalker GSA effected by the Amended Tallywalker GSA did not change the terms governing the power to appoint receivers.
2. For the reasons I have given in determining Issues 22, 26 and 26A, the Tallywalker GSA and the Amended Tallywalker GSA were not validly executed by Tallywalker and accordingly CLAH did not have the power to appoint the Tallywalker Receivers in purported reliance on the power of appointment conferred by those security agreements. Issues 30 to 31 must be answered in the negative because they are based on a mistaken premise that the relevant security agreements were validly entered into by Tallywalker as grantor.
3. Had it been necessary to decide, I would have rejected the plaintiffs' submissions to the effect that Tallywalker did not owe any debt to CLAH at the time CLAH purported to appoint the Tallywalker Receivers on 30 July 2020. The plaintiffs' overarching proposition replicates the plaintiffs' position in relation to the appointment of the Shyzi Receivers and the Ohmut Receivers. CLAH's right to appoint a receiver is determined by reference to the terms of the relevant security agreement, subject to the validity of those documents being established: see overview of applicable legal principles in part 10.3 of these reasons. If the underlying agreements had been valid, the appointment power fell to be construed in accordance with the legal principles applicable to the construction of commercial contracts by reference to the relevant security documents and not according to some general unsourced proposition that the appointment power is conditioned on the grantor itself being indebted to the secured party.
4. On the proper construction of the relevant facility and security agreements between CLAH on the one hand and Tallywalker and Overland on the other hand, CLAH had the right to appoint the Tallywalker Receivers for two reasons. First, the liquidation of Overland triggered the right of appointment. Second, Tallywalker was indebted to CLAH at the date the Tallywalker Receivers were appointed.
5. In its proper construction, the Tallywalker GSA if it had been validly executed provided that:

(1) if Tallywalker (or another Transaction Party) owed money to CLAH as at the date of the appointment of the Tallywalker Receivers and that debt fell within the definition of Secured Money under the Tallywalker GSA, applying the operative definition of Moneys Secured or Secured Money under the operative iteration of the Tallywalker Facility, then CLAH was entitled exercise such rights as were conferred under the Tallywalker GSA to appoint the Tallywalker Receivers provided the condition to the exercise of the right was met;

(2) the liquidation of Overland caused the occurrence of an Event of Default under the Tallywalker GSA which enlivened the power under cl 11 of the Tallywalker GSA for CLAH to appoint the Tallywalker Receivers, which CLAH was able to exercise at its discretion; and

(3) the power to appoint receivers was not conditioned on there being debt that was due and payable or on the occurrence of an Event of Default involving breach of a payment obligation. That circumstance would supply an additional basis upon which the discretionary power to appoint receivers may be triggered, but it was not a necessary pre-condition to the appointment power being enlivened where an Event of Default had otherwise occurred in circumstances where Tallywalker or another Transaction Party, relevantly Overland, was indebted to CLAH.

1. Given the findings I have made as to the invalidity of the relevant facility agreements, it is likely that such funds as were advanced by CLAH to Tallywalker (or for which Tallywalker was jointly liable) were the subject of undocumented loans and repayable on demand. Had it been necessary to do so, I would have made that inference.
2. The evidence led by the plaintiffs that sought to establish that the basis for the funds being advanced by CLAH was other than by way of a loan does not rise to a level where it would displace the inference that the loans were repayable on demand.
3. The alleged Tallywalker Investment Agreement was not established on the evidence to the requisite level of satisfaction in terms of fact finding. The terms of the alleged agreement lacked certainty and clarity of expression such that the alleged agreement could be enforced.
4. The alleged Juice Bar Agreement suffered from the same deficiency in the evidence. Had it been necessary to decide, I would not have found that a term of the Juice Bar Agreement was that CLAH forgave any indebtedness owed to it by Tallywalker and Overland.
5. As with the evidence relied on in relation to the claims against Shyzi and Ohmut and Parkway One, there is some evidence in relation to the fact of the movement of funds between the relevant companies but the oral evidence relied on to establish the basis on which the funds were moved between the companies is tainted by reconstruction and supported by little in the way of contemporaneous records that objectively demonstrate the true basis which informed the movement of funds. For this reason, had it been necessary to decide whether Tallywalker was relevantly indebted to CLAH as at the date of the appointment of the Tallywalker Receivers, I would have found that any debt established on the evidence as still owing would be repayable on demand.

12.6 Issues 20 and 21 - The financial arrangements between CLAH and Tallywalker, and CLAH and Overland

1. The dispute as to the alleged Tallywalker Investment Agreement, the dealings surrounding the Drilling Rig Venture, and the Tallywalker Facility is the subject of Issues 20 to 21 of the Amended Joint List of Issues. The parties frame these issues as follows:

(1) Issue 20 - What were the terms of CLAH's agreement to invest in Tallywalker?

(2) Issue 21 - What amounts did CLAH contribute to Tallywalker and Overland by way of equity and what amounts did it advance by way of loan?

1. The competing stances taken by the plaintiffs and the defendants as to the contextual arrangements in which the Tallywalker transaction and security documents came into existence are almost completely based on their competing oral accounts. The contextual arrangements, whether they be styled by the parties in their contentions as "agreements" or "ventures", were not documented. There are very few contemporaneous documents that either side rely upon. Such documents as are available are relied upon on the basis that they are consistent with one side's version over the other side's version, but many of the documents are equivocal and do not provide a sound basis from which to infer as a matter of fact what was in truth the arrangement between the parties at any particular point in time. The documents and alleged conduct relied on, in the main, post-date the agreements that are alleged to have been formed. There are no documents which definitively prove the nature of the arrangements between the parties including as to whether the agreement reached was an agreement that created legal relations and if so, on what terms the resulting agreement was made. In relation to some documents, allegations are made that the documents in the form tendered have been, at best, altered, or alternatively, falsified. Allegations of this type are made by both sides of the record. Added to this is the caution that is necessary when considering the evidence of Mr Page and Mr Baker. Even in the case of Mr Brooks' evidence, I must exercise care given that his evidence was given years after the events in issue, without contemporaneous notes, and through the lens of prolonged disputation with Mr Baker in which his interests are aligned with the interests of Mr Page and Ms Page. In such circumstances, had it been necessary to determine whether either of the alleged agreements or arrangements were established, the party that bore the onus of proving the alleged oral agreement would have faced a likely insurmountable burden.
2. In the present context, the primary relief sought by the plaintiffs is pursuant to ss 418A and 599 of the Act. These proceedings do not concern any contractual remedies - the relief sought in the proceedings does not include any remedies for the enforcement of the alleged agreements or for damages for breach. The agreements are relied on to cast doubt on the validity of the appointment of the Tallywalker Receivers under the Tallywalker GSA.
3. In relation to the relief sought under s 418A of the Act, the plaintiffs bear the onus of demonstrating sufficient doubt about the validity of appointment of the Tallywalker Receivers to shift the onus to the defendants to prove the validity of the Tallywalker Receivers' appointment. The plaintiffs have established doubt in relation to the validity of the purported appointment. It is somewhat of an understatement to say that I have a strong feeling of uncertainty about the validity of the appointment. The plaintiffs have shifted the burden to the defendants. The defendants have not dispelled the doubt raised by the plaintiffs and have not established that the appointment of the Tallywalker Receivers was valid.
4. In circumstances where I have found that the underlying agreements were not valid, the relief sought in these proceedings does not require a determination to be made in relation to the financial arrangements between CLAH and Tallywalker and CLAH and Overland. It is not inconceivable that the allegations made in relation to the conduct of the business involving Overland and Tallywalker may be the subject of further action. I will refrain from making factual findings in relation to this aspect of the dispute. Any such findings would be otiose to the determination of the relief sought in these proceedings given the conclusion I have reached regarding the validity of the underlying agreements.

12.7 Issues 27 and 28 - Was there an enforceable agreement made on or about February 2019 between CLAH and Dr Munro (that is, the Juice Bar Agreement), which included terms that CLAH would forgive its loans to Tallywalker and Overland? Do the plaintiffs have any standing to complain about the alleged Juice Bar Agreement, and otherwise is this relevant to any remedy presently sought?

1. These issues concern the alleged Juice Bar Agreement by which the plaintiffs alleged that CLAH agreed to forgive its loans to Tallywalker and Overland. Given the conclusion I have reached in relation to the validity of the appointment of the Tallywalker Receivers, it is not necessary to determine these issues. It would be inappropriate to do so given the findings I have made and in light of the fact that Dr Munro is not a party to these proceedings.

12.8 Issue 25 - Do the plaintiffs have any standing to complain about any alleged agreement (which is denied) between Tallywalker and Dr Munro, and otherwise is this relevant to any remedy presently sought?

1. This issue concerns the alleged agreement to allocate shares in Tallywalker to Dr Munro (or his associated entity, DMXS) in exchange for Dr Munro providing financial assistance to Tallywalker, including by providing vehicles to Tallywalker. For the same reasons as I have given in relation to Issues 27 and 28, I will not determine these issues.

12.9 Issue 23 and 24 - Was the shareholding in Tallywalker altered with the knowledge of all shareholders, and otherwise is this relevant to any remedy presently sought? Were the shareholders of Tallywalker prevented from having, or otherwise denied access to, the books and records of Tallywalker, and otherwise is this relevant to any remedy presently sought?

1. These issues are not necessary to determine. No relief is sought in these proceedings that turns on the resolution of these issues.

12.10 Issue 29 - Do the plaintiffs have any standing to complain about the unauthorised grant application made through the Pattens Group in December 2019 in respect of a R&D AusIndustry Application made on behalf of Tallywalker, and the unauthorised payment of grant monies received by Tallywalker from this application to CLAH in January and February 2020 and otherwise is this relevant to any remedy presently sought?

1. This issue involves another allegation made by the plaintiffs as to Mr Baker's dishonest dealings in relation to funds being syphoned off from Tallywalker to CLAH. In this instance the allegation relates to the period after Dr Munro is said to have been appointed as a director of Tallywalker.
2. The evidence demonstrates that an R&D tax incentive application form was lodged for Tallywalker which appears to have been signed electronically by Dr Munro on 6 December 2019. Dr Munro denies that he digitally signed the application and says that did he not instruct or authorise anyone else to apply for an R&D tax incentive on behalf of Tallywalker.
3. Mr Baker was asked about the R&D tax incentive application and said he did not know who signed the application. A copy of the application form was attached to an email from Pattens to both Mr Baker and Dr Munro, as well as to Louise Guines who was Mr Baker's personal accountant, on 4 December 2019. This email confirmed that "Louise, Theo and Don are able to view the documents but is only Don who could approve or electronically sign the documents."
4. On 21 January 2020, $127,411 was deposited to Tallywalker's bank account on account of the R&D grant. The next day, on 22 January 2020, $103,000 was transferred from Tallywalker to CLAH. Mr Baker accepted that the grant came in and went straight to CLAH. Mr Baker described the transfer as a repayment on the Tallywalker loan to CLAH. Mr Baker knew that Dr Munro had not authorised the 22 January 2020 transfer.
5. The plaintiffs submit that in circumstances where Mr Baker was copied into the email correspondence sent by Pattens on 17 December 2019 and was aware of applications having been made on behalf of Tallywalker for R&D grants, I should infer that it was Mr Baker who instructed Ms Guines and Pattens to prepare and lodge the R&D tax incentive application on behalf of Tallywalker in December 2019, without the knowledge or authority of Dr Munro, and then used the proceeds of the unauthorised transaction he had affected to benefit CLAH.
6. This issue is not necessary to determine given the conclusion I have reached in relation to the validity of the appointment of the Tallywalker Receivers.

12.11 Issue 32 - Are the parties to this proceeding in an accounting relationship in respect of the indebtedness of Tallywalker?

1. On the findings I have made, Issue 32 does not arise.

1. The plaintiffs have established that the appointment of the Tallywalker Receivers by CLAH was not valid. CLAH did not have the power to appoint the Tallywalker Receivers in purported reliance on the power of appointment conferred by Tallywalker GSA, which was not validly executed by Tallywalker. I will hear from the parties on the form of the relief to give effect to these reasons.

1. In addressing Issue 18, I have addressed the substance of the contest that is the subject of the priority contest in the Distribution Proceeding. I will not repeat what I have said in part 11.12 above. I am satisfied that CLAH has the benefit of a security interest in the proceeds of the sale of the Cooks Hill Property as a result of its equitable mortgage for the reasons I have there given.
2. I provide the following additional detail in relation to the Distribution Proceeding. In order to present a coherent background to these proceedings, it is necessary to draw together findings and history previously recounted in other parts of these reasons.
3. The Distribution Proceeding is a priority dispute between competing claims to the surplus proceeds of sale of Parkway One's assets, which I have referred to as the Parkway Fund. Mr Scott has obtained orders for payments to be made to him from the Parkway Fund. The common question arising in each of the Receivership Proceeding and the Distribution Proceeding is whether any debt is owed by Parkway One and Ohmut to CLAH.
4. Prior to Parkway One entering liquidation on 19 August 2019, Parkway One was the trustee of the Parkway One Trust which beneficially owned the Cooks Hill Property and several other real properties. Parkway One's assets were sold and the distribution of the Parkway Fund is in issue in the Distribution Proceeding.
5. The circumstances leading to Mr Scott's appointment as receiver and manager of the property of the Parkway One Trust may be briefly stated. In December 2019, Zapato was incorporated. The directors were Mr Baker and Dr Angelo Lazaris each with 50% shareholding. The evidence in relation to Dr Lazaris is scant. Mr Baker described him as being a partner of his over the years, and a friend of Dr Munro's. A letter from the plaintiffs' solicitor dated 15 September 2020 cites correspondence prepared by Dr Lazaris which confirms that Mr Baker had requested that Dr Lazaris become a director and shareholder of Zapato "to strengthen refinancing applications (away from the NAB)" to complete the 58 Harriet Street and Cooks Hill Property developments. Ms Page executed the Zapato Appointment Deed appointing Zapato as trustee of the Parkway One Trust on 11 December 2019. Following correspondence between Bridges Lawyers, who acted for Mr Scott, and Diamond Conway, who in addition to acting for CLAH and Overland, also acted for Zapato, Mr Scott was appointed by order of the Supreme Court as receiver and manager of all the assets of the Parkway One Trust, including the Cooks Hill Property: see Parkway One Pty Limited (No 2) at [14]-[17]. Zapato is not a party to this proceeding and the issues raised for determination are not addressed to the enforcement of the Zapato Appointment Deed.
6. An application to terminate the liquidation of Parkway One brought by Ms Page was dismissed by the Supreme Court on 1 November 2019: Parkway One Pty Limited (No 1). A subsequent application to terminate the liquidation of Parkway One was lodged by Ms Page but was withdrawn on 5 December 2019. The involvement of each of Mr Baker, CLAH, Ms Page and Mr Page in these applications is addressed in part 11 above.
7. In this proceeding, Mr Scott did not lead any evidence and was not called as a witness.
8. Mr Scott appeared as the moving party on his application insofar as necessary to do so as a Court-appointed receiver of the Parkway One Trust and made submissions. Counsel for Mr Scott briefly cross-examined Ms Page and Dr Munro in relation to matters unique to the Distribution Proceeding. The cross‑examination undertaken by Mr Scott was confined to seeking clarification as to the ultimate unitholders of the Parkway One Trust, including through an interrogation of the Trust Investment Agreement which purported to transfer 50% of the units in the Parkway One Trust to CBD Sydney Investments, and the appointment of Zapato as trustee.
9. As I have mentioned, Mr Scott initially sought orders for the whole, or alternatively cascading amounts, of the Parkway Fund to be paid to him. By the time of closing submissions, Mr Scott had refined his position. Mr Scott's ultimate position was that he did not contend for a particular outcome and submitted that he adopted a position of neutrality in the proceeding. Mr Scott made some very general submissions regarding the disposition of the Parkway Fund which in substance just set out the competing hypothetical outcomes depending on the factual findings made. He did not make meaningful submissions as to the proper construction of the relevant commercial agreements. While CLAH took issue with Mr Scott's standing to seek the relief that he originally claimed in the Distribution Proceeding, that issue falls away given the stance ultimately adopted by Mr Scott in closing submissions. CLAH submitted that Mr Scott's role was properly limited to an interest in the disposition of the priority dispute between those claiming priority to the Parkway Fund and being bound by the Court's determination. That is ultimately what Mr Scott did.
10. CLAH, the first respondent in the Distribution Proceeding, claims an interest in the surplus proceeds, based on its contention that it is a secured creditor of Parkway One pursuant to the Ohmut/Parkway Facility, under which Parkway One was a joint borrower. The Ohmut/Parkway Facility is addressed in part 11.4.1 of these reasons.
11. CLAH contends that it has the benefit of the Parkway Mortgage, which as I have said was a mortgage granted by Parkway One as trustee of the Parkway One Trust over the Cooks Hill Property. The mortgage was given as security for the indebtedness of Parkway One and Ohmut as co‑borrowers under the terms of the Ohmut/Parkway Facility. The Parkway Mortgage was signed by Ms Page for Parkway One and she declared that she had received legal advice regarding inter alia the loan and security documents for the Cooks Hill Property. CLAH did not register the mortgage under the provisions of the Real Property Act 1900 (NSW) and accordingly relies on the mortgage as an equitable mortgage. CLAH claims on the Parkway Fund in so far as that fund derives from the sale proceeds of the Cooks Hill Property based on the priority it claims under the Parkway Mortgage as an equitable mortgage.
12. Harmat challenges the existence of the equitable mortgage upon which CLAH relies, in effect adopting the role of contradictor. Harmat makes a competing priority claim to the surplus funds based on its contention that it is the sole unit holder in the Parkway One Trust. Harmat contends - as per its position in the Receivership Proceeding - that CLAH does not have priority to the Parkway Fund because there is no indebtedness on the part of Parkway One and/or Ohmut under the Ohmut/Parkway Facility to which the equitable mortgage attaches. I have found against the plaintiffs on that central contention.
13. Harmat acknowledges that if CLAH succeeds in establishing that there is a debt owed then Harmat otherwise does not dispute the validity of the equitable mortgage upon which CLAH relies. That contingency has been fulfilled. For the reasons I have given in part 11, I am satisfied that CLAH has established a debt that falls within the relevant definition of Secured Money under the Parkway Mortgage.
14. Further, and as a fall back, if the CLAH debt is established, Harmat seeks a taking of accounts in order to establish the extent of the respective entitlements to the Parkway Fund of CLAH and Mr Scott as receiver. The parties proceeded on the basis that the determination of whether it would be necessary to press for the taking of accounts would be deferred until after the parties had considered these reasons. I will afford them that opportunity.

1. For these reasons, the challenge to the appointment of the Shyzi Receivers and the Ohmut Receivers will be dismissed. I will hear from the parties after they have had an opportunity to consider these reasons in relation to whether the plaintiffs wish to pursue their claims for alternative relief including in relation to the taking of accounts. I will convene a case management hearing for this purpose once the parties have had opportunity to consider these reasons. In respect of the claims against Tallywalker, the appointment of the Tallywalker Receivers was not valid. I invite the parties to confer and provide proposed short minutes give effect to these reasons. The only order I will make at this stage is that the proceedings be listed on a date to be advised for case management for the determination of final orders.

I certify that the preceding one thousand, seven hundred and ninety-eight (1798) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman.

OHMUT PTY LTD (ACN 167 697 118) (RECEIVERS & MANAGERS APPOINTED) (ATF THE ONE HUNDRED MILE UNIT TRUST)

TONY MISKIEWICZ & RAHUL GOYAL (IN THEIR CAPACITY AS REEIVERS & MANAGERS OF TALLYWALKER PTY LTD (ACN 600 692 886) (RECEIVERS & MANAGERS APPOINTED))

TALLYWALKER PTY LTD (ACN 600 692 886) (RECEIVERS & MANAGERS APPOINTED)