Plaintiff v Defendants

For the First and Second Defendants to the claim and counterclaim

1 This proceeding relates to loans advanced by the plaintiff ('Jieyun') to the first defendant ('TDG'), a company of which the second defendant, Dali Cvek ('Mr Cvek'), is and was a director. The advance was made in relation to the purchase and development of two adjoining properties, namely 1093-1095 Malvern Road Toorak (the '1093 property') and 1097-1099 Malvern Road Toorak (the '1097 property', and collectively the 'Toorak properties'). Jieyun alleges that TDG and Mr Cvek have applied the loan funds to the other defendants other than for the purpose for which it is advanced. The Court has made freezing orders over the assets of the defendants, including TDG and Mr Cvek, pending the determination of this proceeding.

2 This aspect of the proceeding concerns who is entitled to the balance of the deposit of $685,000 paid by Mr Cvek in respect of a contract to purchase the 1097 property. The balance is $308,250 (the 'Net Deposit' and the 'Net Deposit dispute'). The Net Deposit is currently held by the Court. The seventeenth defendant ('Shieldpeak'), who was nominated by Mr Cvek as the purchaser of the 1097 property, claims to be entitled to the Net Deposit. By contrast, Jieyun claims that the Net Deposit is the property of TDG or Mr Cvek and thus the subject of a freezing order against their assets.

3 The Net Deposit dispute is in the nature of an interpleader. It was originally the subject of orders made on 4 March 2020, including orders for the filing of affidavit material and submissions. When the matter came on for hearing on 16 November 2020, it became apparent that the basis of Shieldpeak's entitlement to the Net Deposit depended upon rectifying a nomination deed dated 19 February 2020 between Shieldpeak, TGD and Mr Cvek (the 'second Deed'). As a result, the application was adjourned so that Shieldpeak could file and serve a counterclaim for rectification of that deed with TDG, Mr Cvek and Jieyun as relevant defendants to the counterclaim. Shieldpeak filed a counterclaim dated 30 November 2020. Jieyun filed a defence dated 8 February 2021. Neither TDG or Mr Cvek filed a defence or sought to be heard at the hearing of the counterclaim.

4 For the reasons that follow, I have concluded that Shieldpeak is not entitled to an order for rectification of the second Deed. Shieldpeak has not proved to the requisite standard that it was the common intention of the parties that Shieldpeak would retain the Net Deposit.

(1) Joshua Buxton sworn 19 June 2020 and 23 February 2020 (the 'first Joshua Buxton affidavit' and the 'second Joshua Buxton affidavit' respectively);

(2) Michael Raymond Buxton sworn 29 June 2020 and 23 February 2020 (the 'first Michael Buxton affidavit' and the 'second Michael Buxton affidavit' respectively);

(4) Ron Cohen affirmed 30 June 2020 and 18 February 2021 (the 'third Cohen affidavit and the 'fourth Cohen affidavit' respectively); and

(5) Thomas McMillan Small affirmed 30 November 2020.

6 Jieyun relied upon the affidavits of Mr Cohen previously filed in the proceeding affirmed 6 and 20 December 2019 (the 'first Cohen affidavit' and the 'second Cohen affidavit' respectively).

7 On 22 February 2021, Jieyun filed a list of objections to the affidavit material of Shieldpeak. These objections related for the most part to relevance and the form of the statements in the affidavits. As a result, Shieldpeak sought leave at the hearing to file the second Joshua Buxton affidavit and the second Michael Buxton affidavit. I granted leave subject to the request of counsel for Jieyun to cross examine Michael Buxton. He then gave evidence via video link at the hearing.

8 As to the objections to the affidavit material, most were addressed in the course of the hearing. I will deal with this further below. I reserved my ruling on the admissibility of [11] and part of [14] and [17] of the second Joshua Buxton affidavit, and of [20] of the Wridgway affidavit. I will address them further in these reasons.

9 Before addressing the claim for rectification and evidence in support of it, it is appropriate I set out the objective facts.

10 At all relevant times, Mr Cvek was a property developer and a director of TDG. He was the sole director of the fifteenth defendant ('Mathoura').

11 On 24 September 2016, Mr Cvek entered into a contract of sale with CM and CT Nicholas to purchase the 1097 property (the '1097 contract') for $6,850,000 with a 10% deposit of $685,000 (the '1097 deposit'). The balance payable was $6,165,000 due on 28 February 2018. Mr Cvek paid the 1097 deposit. At about this time, Mr Cvek also entered into a contract of sale to purchase the 1093 property for $8,250,000 (the '1093 contract').

12 Pursuant to a loan deed dated 20 September 2017, Jieyun loaned the first defendant $8,000,000 for the purpose of assisting TDG to purchase, develop and construct the 1093 property and the 1097 property (the 'Approved Purpose').

13 Upon discovering that TDG had used the loan funds for purposes other than the Approved Purpose, Jieyun issued this proceeding and applied for urgent freezing orders against TDG, Mr Cvek and the other defendants in this proceeding. Interim orders were made on 23 August 2018. Interlocutory orders were made on 3 September 2018 (the '2018 freezing orders'). The 2018 freezing orders provided among other things that each of TDG and Mr Cvek was prevented from disposing of, dealing with or diminishing the value of any of the assets in Australia up to an unencumbered value of $8,000,000. Further, the 2018 freezing orders provided that, in the case of TDG, its assets relevantly included 'any interest in [the Toorak properties] - or, if it [sic] any such interest has been sold or disposed of, the net proceeds of the sale or disposition'.

14 On 17 October 2018, Mr Cvek or TDG caused Mathoura to become the registered proprietor of the 1093 property. The circumstances in which this came about was not made clear on the evidence before me. As noted above, the sole director of Mathoura was Mr Cvek. It would appear that this may have been a breach of the 2018 freezing orders.

15 On 28 October 2019, Mathoura entered into a contract of sale for Shieldpeak to purchase the 1093 property (the 'Mathoura contract'). The purchase price was $6,385,000 with a 10% deposit of $638,500. The balance payable was $5,746,500 due on 17 November 2019.

16 Special condition 33 of the Mathoura contract ('special condition 33') provided that the sale of the 1093 property to Shieldpeak was subject to and conditional upon Mr Cvek executing a form nominating Shieldpeak as purchaser of the 1097 property under the 1097 contract and that that nomination be accepted by the vendor under the 1097 contract prior to settlement of the 1093 property.

17 I will set out the evidence (such as it is) as to how the Mathoura contract and special condition 33 came into existence later in these reasons.

18 In or after late October 2019, Mr Cohen on behalf Shieldpeak negotiated with the solicitors for Mathoura and for Mr Cvek the terms of a deed by which Mr Cvek was to nominate Shieldpeak as the purchaser of the 1097 property in accordance with special condition 33 of the Mathoura contract. The circumstances in which these negotiations took place and the deed was prepared are far from clear. In his third affidavit, Mr Cohen deposed that a 'Nomination Deed' was entered into by Mr Cvek, TDG and Shieldpeak on 18 November 2019 which he referred to as the 'First Deed of Nomination'. Mr Cohen produced that First Deed of Nomination as an exhibit to that affidavit. I note in passing that the form of the First Deed of Nomination produced to the third Cohen affidavit contains amendments that Mr Cohen did not propose until 11 December 2019.

19 However, in the first Cohen affidavit, Mr Cohen deposed that the draft nomination deed (which was also produced as an exhibit to his first affidavit) had not been signed at the time his affidavit was affirmed. I will refer to this draft deed as the 'November draft'.

20 The November draft was a bespoke deed by which Shieldpeak was to be substituted for Mr Cvek as the purchaser under the 1097 contract. As noted above, under the 1097 contract, the purchase price was $6,850,000 with a 10% deposit of $685,000 (i.e. the 1097 deposit) which had been paid by Mr Cvek. The balance payable was $6,165,000.

(1) Mr Cvek is the purchaser of the 1097 property from CM and CT Nicholas under the 1097 contract and had paid the deposit under the contract;

(2) Shieldpeak had entered into the Mathoura contract which contained special condition 33; and

(3) in accordance with special condition 33, Mr Cvek, agreed that Shieldpeak shall be nominated by Mr Cvek as a substitute purchaser.

22 The bespoke nature of the November draft is evident from a number of clauses including those relating to the deposit and payment of stamp duties. For example, clause 4 of the November draft (which did not relevantly change in subsequent iterations before 19 February 2020) provided:

SHIELDPEAK agrees that:

4.1 it has received from CVEK a copy of the fully signed [1097] Contract;

4.2 it agrees to be nominated as substitute purchaser of the Contract as a result of its own due diligence ...;

4.3 it will deposit into its solicitors trust account the sum of $685,000 within 14 days of the Due Date. The said sum may be held in an interest bearing controlled monies account with any interest earned shall be retained by SHIELDPEAK;

4.4 it will authorise its solicitors to release to CVEK the deposit monies referred to in clause 4.3 at Settlement less the stamp duty amount to be retained by SHIELDPEAK referred to in clause 6.2;

4.5 it will pay the Balance of the Purchase Price to the Vendor in accordance with the Contract at Settlement;

4.6 it will grant a monthly tenancy to the Vendor after settlement at $90,000.00 per annum on terms to be agreed between the Vendor or SHIELDPEAK such terms of which are annexed in Annexure C;

4.7 it will sign the nomination Form contemporaneously with the signing of this Deed;

4.8 it will be liable for any stamp duty payable as a result of the contract (subject to clauses 3.9 and 6.2);

4.9 it will provide to CVEK's solicitors a copy of the stamp duty assessment at the time the deposit under clause 4.4 is released; and

4.10 it will authorise its solicitors to:

a) disclose the land development undertaken by CVEK, and

1. on behalf of CVEK, pay the stamp duty amount retained in accordance with clause 6.2 to the State Revenue Office.

23 The Due date was defined as 'by settlement of the [1093 property] (such Due Date currently being 18 November 2019)'. Further, clause 6 provided:

CVEK agrees that:

6.1 it has provided to SHIELDPEAK a copy of the fully signed [1097] Contract;

6.2 it has undertaken land development on the Property, in particular submitting an application for a Planning Permit for the Property, and accepts liability for the additional stamp duty that SHIELDPEAK may incur from these works by authorising SHIELDPEAK to retain the amount of $376,750.00 in respect to such stamp duty payable from the amount of $685,000.00 referred to in clause 4.3.

24 Thus in accordance with the terms of the November draft the 1097 deposit paid by Mr Cvek under the original 1097 contract would be repaid from the equivalent amount deposited by Shieldpeak into Shieldpeak's solicitor's trust account. The amount would be repaid to Mr Cvek after Shieldpeak completed its purchase of the 1097 property less any stamp duty payable in respect of land development undertaken on the 1097 property (the 'land development stamp duty'). There is no evidence from Mr Cohen why or how these clauses came to be inserted into the November draft.

25 Upon learning of the proposed sale of the Toorak properties to Shieldpeak, Jieyun applied for an urgent interlocutory injunction restraining the sales. On 15 November 2019, I made interim orders restraining Mr Cvek from causing settlement of the sale or transfer of the Toorak properties. I also restrained Mathoura from completing the sale of the 1093 property. As these orders were extended on 18, 22, 29 November 2019 and 3 December 2012, I will refer to them collectively as the 'November 2019 freezing orders'. In addition, on 29 November 2019, I ordered that Shieldpeak and Propertyshares Holdings Pty Ltd, Mathoura's mortgagee ('Propertyshares') be added as defendants to the proceeding.

26 There is no suggestion that Shieldpeak were aware of the 2018 freezing orders at the time of the Mathoura contract.

27 Following the November 2019 freezing orders, there was communication between the solicitors for Shieldpeak (relevantly Mr Cohen) and for Jieyun (relevantly Mr Wu). By letter dated 28 November 2019, Mr Cohen stated as follows:

In good faith, we negotiated the terms for a Nomination Deed ('Nomination Deed') with Rigby Cook lawyers, who were acting for Mathoura in relation to the [Mathoura] contract and purportedly acting for Cvek in relation to the [1097] Contract. The terms of the nomination deed was substantially finalised on or before 18 November 2019. A copy of the last draft of the nomination deed is attached.

28 It would appear that the form of the nomination deed attached to that letter is the November draft. In this regard, Mr Cohen sent an email to Mr Wu dated 29 November in which he noted that the nomination deed referred to in his 28 November 2019 letter had not been executed with the result that his client had not been nominated as the purchaser of the 1097 property.

29 Mr Cohen sent a letter to Mr Wu about the effect of the November 2019 freezing orders on 3 December 2019. In that letter he wrote:

As we mentioned in [the 28 November 2019 letter], the contract for the [1093] Property was subject to and conditional upon our client being nominated as the purchaser of the [1097] property. As previously stated the vendor of the [1097] property had previously consented to the nomination as had Dali Cvek as the named purchaser. The only reason why the nomination was not finalised was because on the day of the settlement of the [1093] property, our client became aware of previously undisclosed charges on the [1093] Property and a purchaser's caveat lodged by [TDG] on the [1097] Property.

[...]

Having regard to the above matters please confirm in writing by no later than 5:00pm on Wednesday 4 December 2019 that your client will consent to the orders referred to in paragraphs 6 and 7 above being varied to allow our client to settle on the purchase of the Toorak Properties with the proceeds of the purchase of the [1093] Property only being paid into court.

30 Mr Wu replied by email that Jieyun would be prepared to vary the November 2019 freezing orders to facilitate the settlement of the Toorak properties on the condition that any surplus after the discharge of the mortgage registered over the 1093 property in favour of Propertyshares (and monies due on that mortgage) was paid into Court.

31 On 6 December 2019, I made orders by consent relevantly that:

(1) the 2018 freezing orders be varied so as to permit TDG and/or Mr Cvek to nominate Shieldpeak (and no other person or entity) as purchaser of the 1097 property; and

(2) until further order, save for the nomination permitted by the variation in (1) above, each of Mr Cvek, TDG and Mathoura (including by his or its servants or agents or otherwise) be restrained from further dealing with, disposing of or diminishing any interest each of them has or may have in the Toorak properties (collectively the 'December 2019 orders').

32 In mid-December 2019, there was a series of communications between Mr Wu and the solicitors for TDG, Mr Cvek and Mathoura in order to complete the sale of the Toorak properties. By letter dated 11 December 2019, Mr Cohen sent the solicitors for Mathoura an amended nomination deed to substitute Shieldpeak as the purchaser under the 1097 contract (the 'first December draft'). The first December draft did not alter any of the clauses of the November draft set out above (including the definition of Due Date). Rather it addressed the need for TDG to remove its caveat over the 1097 property before settlement. I note that Mr Cohen's 11 December 2019 letter was copied to the solicitors for all the parties and to the email address for Mr Cvek given that he was unrepresented in the proceeding at this time.

33 A further amended deed of nomination was circulated to the solicitor for TDG and Mr Cvek, Dean Kalimniou of Toorak Law, by email on 16 December 2019 (the 'second December draft'). The second December draft did not appear to alter any of the clauses of the November draft set out above (including the definition of Due Date which referred to the settlement of the 1093 property 'currently being 18 November 2019'). The second December draft was executed by Mr Kalimniou's clients (Mr Cvek and TDG) and returned by him to Mr Cohen on 19 December 2019 (the 'first Deed').

34 The proceeding returned to Court on 20 December 2019. Mr Cohen filed the second Cohen affidavit for that hearing. He deposed that Shieldpeak had served a Notice of Rescission upon Mathoura terminating the Mathoura contract with the result that special condition 33 in the Mathoura contract was no longer in force. However, there was an issue about the deposit paid by Shieldpeak to Mathoura under the Mathoura contract. As a result, I made orders on 20 December that the deposit paid by Shieldpeak to Mathoura's real estate agents be retained in the agents account until further order. After further negotiation, on 23 December 2019, I ordered by consent that the deposit Shieldpeak paid to Mathoura under the Mathoura contract was returned to Shieldpeak.

35 Sometime in December 2019 Mathoura defaulted on its loan payments to Propertyshares with the result that that Propertyshares took possession of the 1093 property. On 20 February 2020, Propertyshares entered into a contract of sale to sell the 1093 property to Shieldpeak (the 'Propertyshares contract'). The purchase price was $6,385,000 with a 10% deposit of $638,500. The balance payable was $5,746,500 due on 28 February 2020.

36 In contrast to the Mathoura contract, there does not appear to be any special condition in the Propertyshares contract in relation to the purchase of the 1097 property. However, there is in evidence a deed of nomination between Mr Cvek, TDG and Shieldpeak dated 19 February 2020 signed by Mr Cvek and TDG (i.e. the 'second Deed'). In the third Cohen affidavit this is referred to as the 'Second Deed of Nomination'. In the pleadings relating to the counterclaim, it is admitted the second Deed was executed by all parties to it.

37 I will set out the evidence (such as it is) as to how the Mathoura contract came into existence later in these reasons. It suffices to say that the affidavit evidence does not disclose how the second Deed came into being or how it was executed. Mr Cohen does not say so. Neither do Joshua Buxton or Michel Buxton. Mr Wridgway does not deal with the second Deed and Mr Cvek did not give evidence.

38 The second Deed is very similar to the first Deed. The recitals record that:

(1) Mr Cvek had entered into the 1097 contract to purchase the 1097 property for $6,850,000 and had paid a deposit of $685,000;

(2) the balance of $6,1650,000 was payable at settlement on 28 February 2020 being the extended date for settlement of the 1097 contract;

(3) in consideration for Shieldpeak entering into the Propertyshares contract, Mr Cvek agrees that Shieldpeak shall be nominated as purchaser under the 1097 contract.

(1) Mr Cvek agreed to nominate Shieldpeak as a substitute purchaser under the 1097 contract and Shieldpeak accepts such nomination (cl 2.1).

(2) the nomination is subject to and conditional upon completion and settlement of the sale of the 1093 property to Shieldpeak (cl 2.2).

(3) Mr Cvek would sign and deliver the nomination form at the time of signing the second Deed and would procure the vendors written consent to the nomination (3.3-4).

(4) Mr Cvek had had paid the deposit in full (cl 3.11).

40 Further, the terms of cll 4 and 6 are relevantly the same as cll 4 and 6 in the November draft set out above. However, the definition of Due Date was changed to mean '27/2/2020', being the date before settlement of the 1097 contract and the 1093 property under the Propertyshares contract. Thus, in accordance with the terms of the second Deed, although there is some uncertainty in the timeframes:

(1) Shieldpeak would deposit into its solicitor's account $685,000; and

(2) Shieldpeak would authorise its solicitors to release to Mr Cvek that deposit less the land development stamp duty of $376,750.

41 On 27 February 2020, the day before settlement of the Propertyshares contract Mr Cohen sent an email at 10.51 am to Mr Kalimniou. The email was copied to Mr Cvek and Mr Wridgway. The email stated:

Further to Mr Dali Cvek's email below, please find attached updated deed of nomination.

We have only recently received instructions that the transaction was put to our client initially on the basis that our client would not be required to reimburse the original deposit paid by your client in relation to [the 1097 property]. This instruction has also been confirmed with Mr Mark Wridgway of RT Edgar, the selling agent, who has been copied into this email.

In order to progress matters to settlement, can you therefore please arrange for the attached updated deed of nomination to be executed and returned ASAP, but any event in any event prior to the close of business today (Melbourne time) at the latest.

We are also advised by your client's former solicitors, Rigby Cook, to include a provision in the deed to acknowledge that your client has undertaken land development (as defined in the Duties Act) on the property prior to our client's nomination. Our client has no way of verifying whether this advice is, or is not, correct. Can you please advise urgently whether or not there has been any land development on this site? If no land development has occurred, the attached deed can be further updated by deleting reference to this.

42 The enclosed draft contained a number of amendments relevantly to cll 4 and 6 ('the '27 February Draft'). I will show in mark up the relevant changes to cl 4:

SHIELDPEAK agrees that:

4.1 it has received from CVEK a copy of the fully signed [1097] Contract;

4.2 it agrees to be nominated as substitute purchaser of the Contract as a result of its own due diligence ...;

4.3 it will deposit into its solicitors trust account the sum of $685,000 within 14 days of the Due Date. The said sum may be held in an interest bearing controlled monies account with any interest earned shall be retained by SHIELDPEAK;

4.4 it will authorise its solicitors to release to CVEK the deposit monies referred to in clause 4.3 at Settlement less the stamp duty amount to be retained by SHIELDPEAK referred to in clause 6.2;

4.3 it will pay the Balance of the Purchase Price to the Vendor in accordance with the Contract at Settlement;

4.4 it will grant a monthly tenancy to the Vendor after settlement at $90,000.00 per annum on terms to be agreed between the Vendor or SHIELDPEAK, such terms of which are annexed in Annexure C;

4.5 it will sign the nomination form contemporaneously with the signing of this Deed;

4.6 it will be liable for any stamp duty payable as a result of the Contract (subject to clauses 3.9 and 6.2);

4.7 it will, if requested by Cvek, provide to CVEK's solicitors a copy of the stamp duty assessment at the time the deposit under clause 4.4 is released; and

4.8 it will authorise its solicitors to:

a) disclose the land development undertaken by CVEK and

1. subject to clause 6.2, on behalf of CVEK, pay the stamp duty amount retained in accordance with clause 6.2 to the State Revenue Office.

43 Further, I will show in mark up the relevant changes to clause 6:

CVEK agrees that:

6.1 it has provided to SHIELDPEAK a copy of the fully signed [1097] Contract;

6.2 it has undertaken land development on the Property, in particular submitting an application for a Planning Permit for the Property, and accepts liability for the additional stamp duty that SHIELDPEAK may incur from these works by paying to authorising SHIELDPEAK to retain the amount of $376,750 on or before the Due Date in respect to such stamp duty payable from the amount of $685,000 referred to in clause 4.3.

44 Mr Cvek replied by email on 27 February 2020 at 5.51pm. He wrote:

Hello Ron

FYI I've advised dean [Toorak Law] to send. It will be sent to you this evening.

Many thanks

Dali.

45 Neither Mr Cvek nor his solicitor returned an executed version of the 27 February draft. I note at this stage that the effect of the 27 February draft was not only to remove Shieldpeak's obligation to pay the 1097 deposit less the land development stamp duty to Mr Cvek, but to impose upon Mr Cvek an obligation to pay the land development stamp duty in the sum of $376,750 on or before the Due Date of 27 February 2020.

46 On 4 March 2020, I made orders varying the December 2019 orders to allow for Shieldpeak to complete the purchase of the Toorak properties under the 1097 contract and the Propertyshares contract (the 'March 2020 Orders'). By that time, Jieyun was aware of Shieldpeak's contention that it was not obliged to pay the 1097 deposit to Mr Cvek notwithstanding the terms of the second Deed. Indeed, the March 2020 orders record that the Net Deposit dispute had arisen between Jieyun and Shieldpeak in relation to whether Shieldpeak was required to reimburse the deposit that had been paid by Mr Cvek. As a result, orders were made for the balance of the 1097 deposit after deduction of $376,750 land development stamp duty (i.e. the Net Deposit) to be paid into court pending the determination of the Net Deposit dispute.

47 Shieldpeak in its counterclaim alleged that the terms of the second Deed relating to the reimbursement of the deposit paid by Mr Cvek under the 1097 contract was included by a mutual mistake. Shieldpeak submitted that it was never intended that Shieldpeak repay the deposit to Mr Cvek. Rather, it alleged that there was in effect at all relevant times an agreement defined as the 'Nomination Agreement' that:

(1) Mr Cvek would not seek reimbursement of the deposit from Shieldpeak;

(2) Shieldpeak would only be required to pay the balance of the purchase price to the vendors of the 1097 property; and

(3) TDG would withdraw its caveat it had lodged as it had not been nominated as purchaser and had no interest in the 1097 property.

48 I note that in the counterclaim the Nomination Agreement is alleged to have been made between 'about October 2019 and February 2020' between Mr Cvek, TDG and Shieldpeak. It is alleged to be partly in writing, partly oral and partly implied. In so far as it is in writing, it alleged to comprise:

(1) an email dated 15 October 2019 from Mr Wridgway on behalf of Mr Cvek and TDG to Mr Small and Joshua Buxton on behalf of Shieldpeak (the '15 October 2019 email'); and

49 In so far as it is oral, it is alleged to comprise conversations between Mr Wridgway, Mr Small and Joshua Buxton, the substance of which is contained in their affidavits filed in this proceeding. In so far as it is implied, it is alleged to be implied from the fact that Shieldpeak completed the purchase of the 1097 contract and that Mr Cvek has not sought reimbursement of the deposit.

50 Shieldpeak seeks orders that cl 4 of the second Deed be rectified in accordance with the 27 February draft and that cl 6.2 be deleted in its entirety. I will now set out the evidence in support of the claim for rectification. This is in a context where Jieyun's primary submission was that Shieldpeak's evidence did not meet the requisite standard for a claim for rectification.

51 Mr Wridgway is a director of RT Edgar Toorak and a licensed real estate agent. In his affidavit, Mr Wridgway deposed:

(1) in around April 2019 RT Edgar was engaged by Mr Cvek to sell the Toorak properties. Mr Cvek signed the required authorities for RT Edgar to sell those properties;

(2) Mr Cvek said that Mathoura was the registered proprietor of the 1093 property which he was looking to sell or otherwise find replacement investors;

(3) Mr Wridgway was aware that Mr Cvek had personally entered into a contract to purchase the 1097 property under the 1097 contract. Mr Wridgway facilitated that purchase;

(4) Mr Cvek paid a 10% deposit under the 1097 contract of $685,000 with a balance of $6,165,000 due and payable which had been extended to February 2020. Mr Wridgway facilitated that extension; and

(5) in October 2019, Mr Wridgway entered into negotiations with Josh Buxton and Mr Small of Buxton Projects for the sale of the 1093 property and the 1097 property for a combined price of $12,600,000.

52 At this stage, it is appropriate to refer to Buxton Projects and its relationship with Shieldpeak. On the evidence before me, both are part of the Buxton Group. The Buxton Group has interests in real estate and property development. The Buxton Group comprises over 130 companies. Michael Buxton is the director of approximately 120 companies within the Buxton group. His son Joshua Buxton is a director of approximately 10 companies within the Buxton group.

53 Buxton Projects Pty Ltd is a member of the Buxton Group: its sole director is Joshua Buxton. It operates a property development and management business which undertakes and manages large-scale residential, commercial and industrial developments. Mr Small is a development manager employed at Buxton Projects.

54 Shieldpeak is also a member of the Buxton group: its sole director is Michael Buxton. It was incorporated on 12 February 2019. At the time of its incorporation, it was not intended that Shieldpeak would immediately be used to purchase any real estate.

55 Michael Buxton deposed in the second Michael Buxton affidavit that:

(1) for many years Michael has authorised his son Joshua to act as his agent in his personal capacity and in his capacity as a director of companies within the Buxton group to seek out property related deals and negotiate those deals;

(2) Joshua has often come to him with a proposal for a property purchase or property development with Joshua having already undertaken preliminary negotiations with a vendor or vendor's agent;

(3) Michael and Joshua would discuss the proposal, often undertaking a feasibility assessment; and

(4) at the time Joshua came with a proposal, an entity within the Buxton Group to purchase the assets was not usually identified. That decision was made after discussions with Tiffany Bahen, an accountant who worked for Michael Buxton.

56 Joshua Buxton in the second Joshua Buxton affidavit also deposed that he often engaged in initial negotiations regarding the purchase of assets by the Buxton Group. He deposed that he had his father's authority to do so in relation to the companies controlled by him. He deposed that, after initial discussions with a vendor or its agent, he would then discuss the prospective purchase with his father Michael and Tiffany Bahen, an internal accountant who worked at his father's office. After undertaking due diligence, a decision would be made as to which company would be the named purchaser.

The genesis of Shieldpeak's acquisition of the 1097 property

57 In the first Joshua Buxton affidavit, Joshua Buxton deposed:

1. In about October 2019 I commenced discussions with [Mr Wridgway] ... in relation to the purchase of [the 1093 property] and [the 1097 property].
2. During those discussions, I understood from Mr Wridgway that his vendor client, who I now know as Dali Cvek, had an interest in the 1093 property and the 1097 property and Mr Wridgway had the exclusive authority to sell properties on behalf of his client.
3. In that regard, during my discussions with Mr Wridgway, I understood that:
   1. Mr Cvek's related entity, Mathoura Pty Ltd, was the registered proprietor of the 1093 property; and
   2. Mr Cvek ("and/or nominee") had entered into a contract with the registered proprietor of the 1097 property to purchase that property and had paid the vendor of that property a 10% deposit.
4. The proposed transaction that I discussed with Mr Wridgway was that the prospective purchaser:
   1. would purchase the 1093 property on the condition that it would be nominated by Cvek to complete the Contract for the purchase of the 1097 property; and
   2. would complete the purchase of the 1097 property as nominated purchaser by paying the vendor or of that property the balance of the purchase price, noting that Mr Cvek had already paid a 10% deposit to the vendor.
5. During my discussions Mr Wridgway he did not say to me that the prospective purchaser would have to reimburse Mr Cvek the 10% deposit paid by it to the vendor for the 1097 property and it was my understanding that the purchaser would not be required to reimburse the deposit to Mr Cvek.

58 In the second Joshua Buxton affidavit, Joshua Buxton deposed:

1. At paragraph 4 of my first affidavit, I refer to my initial discussions with Mark Wridgway in October 2019. In accordance with our family practice, I entered into those discussions as agent of the Buxton group of companies with a view to one of the companies within the Buxton group of companies becoming the purchaser. I was never having those discussions just in my capacity as a director of Buxton Projects ...
2. At all times during my discussions with Mr Wridgway, I had the authority from my father to act as agent for the various companies within the Buxton group of companies which he controlled including Shieldpeak and was so acting.

59 Further, in the second Joshua Buxton affidavit he deposed that his 'understanding' referred to in [8] of the first Joshua Buxton affidavit was his understanding in October 2019 and was formed based on his discussions with Mr Wridgway at that time.

60 Jieyun submitted that many of these paragraphs set out from the first and second Joshua Buxton affidavits were inadmissible given the form in which they were expressed, namely that they were conclusionary and the basis for those conclusions were not set out, in particular the details of the conversation on which they were based. There was some force in these submissions given that the details of Joshua Buxton's conversations with Mr Wridgway are not deposed to at all by Joshua Buxton. For the most part, I determined to admit those paragraphs but I informed the parties the form of these statements would be relevant to the weight I would attach to them.

61 However I reserved my decision on the admissibility of [11] of the second Joshua Buxton affidavit. Jieyun submitted this paragraph was inadmissible as irrelevant and/or conclusionary, or if admissible, of little weight. I consider that the paragraph is relevant and admissible as to Joshua Buxton's belief as to his authority at the time.

62 As noted above, Mr Wridgway also gives evidence of his discussions with Joshua Buxton and Mr Small. He deposed:

1. In about October 2019, I entered into discussions and negotiations with Mr Josh Buxton and Mr Tom small of Buxton projects. We were negotiating a sale of the 1093 property and the 1097 property for a combined price of $12,600,000.
2. On 15 October 2019, I sent an email to Tom and Josh setting out the terms of the proposed transaction stated above.
3. The proposal was that the purchaser would be required to pay $6,435,000 for the 1093 property and otherwise only be required to pay $6,165,000 in respect of the 1097 contract, being the balance payable at settlement of the 1097 contract, i.e. a combined price of $12,600,000.00. The proposal that I sent to Tom and Josh by email on 15 October 2019 was sent with Cvek's authority.
4. Now produced and shown to me and marked with the letters 'MW 1' is a true copy of an email which I sent to Tom and Josh outlining the deal referred to above.
5. Mr Small and Mr Buxton advised me that Shieldpeak Pty Ltd would enter into the Contract to purchase the 1093 Property.

1. In conversations I had with Cvek leading up to settlement of the 1097 property, he told me that Shieldpeak Pty Ltd was only required to pay the balance of the purchase price due at settlement for the 1097 property in the sum of $6,165,000 to Mr and Mrs Nicholas, not any funds to Cvek to reimburse him for the deposit he had originally paid pursuant to the 1097 contract.

63 Jieyun also submitted that many of these paragraphs were inadmissible given the form in which they were expressed, namely that they were conclusionary and the basis for those conclusions were not set out. Once again, there was some force in these submissions given that the details of Mr Wridgway's conversations with Joshua Buxton and Mr Small were not deposed to at all by Mr Wridgway. For the most part, I determined to admit those paragraphs but informed the parties that the form of these statements would be relevant to the weight I would attach to them.

64 However, I reserved my decision on the admissibility of [20] of the Wridgway affidavit. Jieyun objected to it on the basis that it was hearsay. I have determined that [20] of the Wridgway affidavit is inadmissible for the proof of the conversation between Mr Wridgway and Mr Cvek pursuant to s 59 of the Evidence Act 2008 (Vic). This is in circumstances where Shieldpeak did not produce any evidence why Mr Cvek is unavailable in order for the exception in s 63 of the Evidence Act to be established. Even if I were satisfied that the exception had been established, in the exercise of my discretion, I would have excluded the evidence given its form. This is because Mr Wridgway refers generally to conversations 'leading up' to the settlement of the 1097 property without specifying when these conversation took place.

65 I note that Joshua Buxton did not refer to the 15 October 2019 email from Mr Wridgway in either his first or second affidavit. The 15 October 2019 email read:

This is a great project with a great rate of return which I can sell you for $12,600,000

History

1093-1095 Malvern Rd was bought for $8,250,000 3 years ago and is now settled. (we have a tenant paying $100,00pa)

1097-1099 was bought around the same time for $6,850,000. 10% deposit has been paid and a balance of $6,165,000 is due 28th February 2020

I have a signed contract from Vendor on 1093-1095 Malvern Rd Toorak at $6,850,000, settlement 17th Oct. 2019. (this could be pushed a bit otherwise he has to roll over the debt)

We will make the 1093-1095 contract conditional that he provides (or do it now) an executed nomination for 1097-1099 Malvern Rd with a settlement date of 28th Feb2020 [sic] and an outstanding balance to be paid of $6,165,000

Or we re contract with this vendor and push settlement out some more, but that would require a further deposit

$6,435,000+$6,165,000=$12,600,000 (yes they are losing $2,100,000 plus stamp duty).

66 There are a number of comments to be made about the 15 October 2019 email, which is far from clear in its terms. First, it would appear that Mr Wridgway had a signed contract from the 'Vendor' (i.e Mathoura) for the 1093 property with a sale price of $6,850,000 and a settlement due on 17 October 2019. It is unclear whether that contract had been signed by any purchaser or whether it was in effect an open offer by Mathoura to sell at that price.

67 Second, Mr Wridgway appears to be offering to sell the 1093 property together with the 1097 property. It appears that two options are put forward. The first option is that the sale of the 1093 property is conditional upon a Buxton entity also being nominated as the purchaser of the 1097 property for the payment of the outstanding balance of $6,165,000 under the 1097 contract with settlement date on 28 February 2020. The second option appears to be that 'we' (which I have understood to mean Mr Cvek and a Buxton entity) could 're contract' with the vendor of the 1097 property but that this would require a further deposit to be paid.

68 Third, it would appear that the purchase price of the 1093 property was to be $6,435,000 and the purchase price of the 1097 property was to be the payment of the outstanding balance of $6,165,000, totalling $12,600,000.

69 Fourth, the 15 October 2019 email notes that 'they are losing $2,100,000 plus stamp duty'. I have understood the reference to 'they' to mean Mathoura and Mr Cvek. It was not explained to me in the evidence or in submissions what the reference to 'stamp duty' was. As is evident from the extracts of the affidavits of Joshua Buxton and Mr Wridgway set out above, it was not the subject of any evidence from them. For my part, and without any assistance on this point, I have assumed it is a reference to the stamp duty which the vendor of the 1093 property (i.e. Mathoura) would have paid when it purchased the 1093 property. In any event, I have not assumed that the reference to stamp duty in the 15 October 2019 email is a reference to the land development stamp duty.

70 At this point, it is appropriate that I set out the evidence of Mr Small. Mr Small deposed in around October 2019, he had discussions with Mr Wridgway concerning the possible purchase of the 1093 property and the 1097 property on behalf of a vendor client. He refers to these as the 'Discussions'. He deposed that Joshua Buxton was also involved in the Discussions. He deposed:

1. During the Discussions, Mr Wridgway also provided details to me and Joshua Buxton concerning his client's interest in the properties and the conditions upon which they would be sold. In this regard Mr Wridgway said to me and Josh Buxton that

1. A company called Mathoura Pty Ltd, of which his client was a director, was the registered proprietor of the 1093 property; 2. His client had already entered into a contract with the registered proprietor of the 1097 property to purchase that property and had paid the vendor of that property a 10% deposit;

1. The 1093 property would be sold on the condition that the prospective purchaser would also be nominated by Mr Cvek as the purchaser to complete the contract for the purchase of the 1097 property;

1. The prospective purchaser would complete the purchase of the 1097 property as nominated purchaser by paying the vendor of that property the balance of the purchase price, being the remaining 90%.
2. During the Discussions, Mr Wridgway said that whilst the vendor of the 1097 property would receive the full amount of the agreed sale value, as per the contract of sale, the full amount would comprise the 10% deposit paid by Mr Cvek and the remaining 90% balance would be paid by the prospective purchaser.[1]
3. Mr Wridgway did not say to me that the prospective purchaser would have to reimburse Mr Cvek the 10% deposit paid by it to the vendor of the 1097 property.
4. On or about 15 October 2019, Mr Wridgway sent an email to me, copying in Josh Buxton. [He exhibited the 15 October 2019 email].

1. Having regard to the Discussions and to the [15 October 2019 email], it was at all times my understanding there was no requirement for the prospective purchaser to pay the 10% deposit to Mr Cvek in order to acquire the 1097 property.

71 In the first Joshua Buxton affidavit, Joshua Buxton deposed:

1. During my discussions with my father in relation to this purchase, I explained to him that Shieldpeak was only required to pay the balance of the purchase price to the vendor of the 1097 property.

72 However, he did not set out when these discussions took place or provide any other details of discussions with his father about purchasing the 1097 property. In his second affidavit, Joshua Buxton deposed that:

1. In October 2019 and following my initial discussions with Mr Wridgway, I informed my father as to the matters that Mr Wridgway said to me, namely that the prospective purchaser was only required to pay the balance of the purchase price to the vendor of the 1097 property.
2. The decision to name Shieldpeak as purchaser was made after several discussions with my father and Ms Bahen in October 2019 I do not recall the precise dates of these discussions or how many took place. I do recall that there was more than several discussions, certainly more than two ...
3. At paragraph 19 of my first affidavit, I make reference to these discussions where I state that 'Shieldpeak' was only required to pay the balance of the purchase price. I would not have made reference to 'Shieldpeak' in my initial discussion with my father, but would have done so in subsequent discussions with him after a decision had been made to name that entity as purchaser. However, during those initial discussions, Shieldpeak was one of the companies that I was acting as agent for and was a company that was being considered as purchaser.

73 I also refer to [10] and [11] of the second Joshua Buxton affidavit set out at [58] above.

74 Jieyun objected to the final sentence of [14] of the second Joshua Buxton affidavit as irrelevant and/or conclusionary. However, consistent with my previous evidentiary rulings, I consider that this sentence is relevant and admissible as to Joshua Buxton's belief as to his authority at the time.

75 In the first Michael Buxton affidavit, Michael Buxton did not refer to any discussions with Joshua Buxton or anything else regarding the purchase of the 1097 property. Rather, in his first affidavit, Michael Buxton deposed at [7] that at the time he signed the 'initial Deed of Nomination' (which was not identified) he did 'not appreciate that it provided for Shieldpeak to pay to Dali Cvek, the amount equivalent to the 10% deposit he had originally paid to the vendor of the 1097 property less an amount for additional stamp duty arising from Mr Cvek's land development on the 1097 property'. This is the only reference to the land development stamp duty in the affidavit evidence filed by Shieldpeak. I will deal with this further below.

76 In the second Michael Buxton affidavit, he deposed that the decision to name Shieldpeak as purchaser was made after discussions with Joshua Buxton and Tiffany Bahen.

77 As set out above, Michael Buxton was cross-examined. He was not able to recall when he reached the decision for Shieldpeak to purchase the 1097 property from Mathoura in 2019. He said it was made after Joshua Buxton had discussed a proposal with him. He said the choice of Shieldpeak as purchaser was made following discussions with Joshua Buxton and Tiffany Bahen. He said that Joshua Buxton then concluded the purchase on behalf of Shieldpeak. He said that Joshua Buxton had ongoing authority to act as agent for Shieldpeak at all times. However he was asked:

When Mr [Wridgway] was having his first discussions with your son Josh and before Josh had come to you to talk about who would be the purchaser, what was the extent of Josh's authority to negotiate of behalf of the Buxton group of properties? --- He had full authority.

And did that authority extend to all of the companies in the group? --- No, no, no. In this particular case, in this transaction that we're talking about, that's what he had authority for.

So can you explain that? --- Well, he had authority to deal with this transaction

And what were the parameters of that authority? --- Well if I was happy with the transaction, he could proceed to buy it.

Shieldpeak signs the Mathoura contract and the first Deed

78 There is limited evidence as to how the decision for Shieldpeak to purchase the Toorak properties was conveyed to Mr Wridgway. Neither Michael Buxton nor Joshua Buxton make reference to this in their affidavits. As set out at [62] above, in [14] of his affidavit, Mr Wridgway simply deposed that Mr Small and Joshua Buxton advised that Shieldpeak would enter into the contract to purchase the 1093 property. In [9] and [10] of the first Joshua Buxton affidavit, Joshua Buxton deposed only that Shieldpeak entered into the Mathoura contract on 28 October 2019 which contained special condition 33.

79 Further and relevantly, the Mathoura contract is for the purchase price of $6,385,000. That is different to the sum referred to in the 15 October 2019 email which forms the basis of a combined price for both properties of $12.6 million. This is not addressed by Joshua Buxton, Michael Buxton or Mr Small. However, Mr Wridgway deposed that the price was reduced by $50,000 because Shieldpeak had agreed to an early settlement of the 1093 property.

80 As to the preparation and execution of the first deed of nomination (i.e. the first Deed), the November draft was prepared by Mr Cohen. The details of his firm are contained in the cover page of the November draft and all subsequent drafts. Notwithstanding that Mr Cohen affirmed affidavits on behalf of Shieldpeak in support of the counterclaim, he did not depose to the circumstances in which the November draft was prepared. Relevantly, he did not depose why he prepared a bespoke nomination agreement which provided in cll 4 and 6 for Shieldpeak to refund the deposit paid by Mr Cvek under the 1097 contract less the land development stamp duty in the sum of $376,750. In addition, there is no explanation why the December drafts, the first deed and the second Deed contained the same cll 4 and 6.

81 I note that Mr Cohen did depose that what he called the 'First Deed of Nomination' was executed on 18 November 2019. For the reasons set out in [18] above, that is not correct. On the evidence before me, the first Deed was executed on around 18 December 2019. I also note that this error has been repeated in the second Michael Buxton affidavit and the second Joshua Buxton. I will refer to this further below.

Shieldpeak signs the Propertyshares contract and the second Deed

82 Further, there is little evidence in relation to Shieldpeak's decision to enter into the Propertyshares contract and/or the second Deed in February 2020. Joshua Buxton simply deposed that they were entered into. As to the 1097 property, he deposed in the first Joshua Buxton affidavit:

1. On about 20 February 2020, I was informed by Ron Cohen, the solicitor acting for Shieldpeak and Buxton Property that he received a deed of nomination signed by Cvek in relation to the 1097 property, nominating Shieldpeak as the purchaser of that property.
2. Having regard to my previous discussions with Mr Wridgway, my understanding at that time was that Shieldpeak was only required to pay the balance of the purchase price to the vendors to acquire the 1097 property.
3. On discovering that the Deed of Nomination did not accord with my understanding, I immediately instructed Mr Cohen to prepare a further Deed of Nomination which did not require any part of the deposit for the 1097 property to be reimbursed to Mr Cvek.
4. I acknowledge that the terms of the deed of nomination do not accord with my understanding, however I did not appreciate that at the time and at all times I understood that Shieldpeak would only be required to pay the balance due at settlement to complete the 1097 Contract.

83 In the second Joshua Buxton affidavit, he deposed:

1. I refer back to paragraph 16 of my first affidavit and confirm that where I say 'and it was my understanding...' that this this was my understanding at the time (i.e. in October 2019), formed initially on behalf of the Buxton group of companies and then after it was decided that Shieldpeak would become the purchaser, held on behalf of Shieldpeak. My state of mind at that time was formed based on my discussions with Mr Wridgway that had taken place in October 2019.
2. I refer back to paragraph 17 of my first affidavit and confirm that I provided instructions to Mr Cohen in respect of the further deed of nomination in my capacity as agent of Shieldpeak.
3. I refer back to paragraph 18 of my first affidavit where I say 'and at all times I understood that Shieldpeak would only be required to pay the balance due at settlement to complete the 1097 contract' and confirm that this was my understanding at the time (i.e. November 2019 and February 2020 being when the First and Second deed of nomination, as defined in the [third Cohen affidavit], were entered into).

84 Jieyun also objected to [17] of the second Joshua Buxton affidavit on the basis it was irrelevant and/or conclusionary or, if admissible of little weight. I consider that the paragraph is relevant and admissible as to Joshua Buxton's belief as to his authority at the time.

85 The first Michael Buxton affidavit did not refer to the Propertyshares contract or the second Deed at all. As set out above, he did refer to the 'initial Deed of Nomination'. In the second Michael Buxton affidavit, he did not refer to the Propertyshares contract or how it came about. As to the second Deed, Michael Buxton deposed:

1. 19. ... it was my understanding at the time that both the First and Second Deed of Nominations (as defined in Ron Cohen's third affidavit dated 30 June 2020][2] where entered into) ... that Shieldpeak was only required to pay 90% of the purchase price of the 1097 Malvern Road Toorak and not to make any payment in return of the deposit to Cvek. I understood this was the case based upon information that Josh had said to me ...
2. I refer back to paragraph 7 of my first affidavit and confirm that when I refer to 'the initial Deed of Nomination, I am referring to both the First and Second Deed of Nominations which are 'the initial versions' of the Deed of Nominations, and I am referring to the dates that the First and Second Deed of Nominations were signed, being on 18 November 2019 and 19 February 2020. I was not referencing my state of mind as at June 2020.

86 These paragraph are in my view both unclear and inaccurate. First, these paragraphs repeat the error contained in the third Cohen affidavit that a nomination deed was signed on 18 November 2019. Second, as to [20], I am unsure how Michael Buxton, when referring to the 'initial Deed of Nomination', could have intended to refer to two executed deeds which on his evidence were executed three months apart.

87 Mr Cohen did not depose to the circumstances in which Shieldpeak came to execute the Propertyshares contract or the second Deed. Rather, he simply deposed that these agreements were entered into by Shieldpeak. He then deposed:

1. After the Second Deed of Nomination was signed by Shieldpeak, I was informed by Joshua Buxton that at all times the arrangement that had been entered into between Shieldpeak and Cvek was that Shieldpeak would not be required to reimburse to Cvek the deposit he had paid to the vendor of the 1097.
2. On 27 February 2020, I sent [the 27 February 2020 email] to Dean Kalimniou of Toorak Law, who was then acting for Cvek attaching a second version of the Second Deed of Nomination which removed the requirement for Shieldpeak to reimburse to Cvek his original deposit he had paid.

88 As noted above, the 27 February draft not only removed the requirement for Shieldpeak to reimburse the 1097 deposit to Mr Cvek: it also obliged Mr Cvek to pay the land development stamp duty of $376,750 on or before the Due Date of 27 February 2020.

89 Shieldpeak submitted that the inclusion of the terms in the second Deed relating to the reimbursement of the 1097 deposit paid by Mr Cvek was the result of a mutual mistake. Shieldpeak submitted it was never the common intention by each of Shieldpeak, Mr Cvek or TDG that Shieldpeak would repay the deposit to Mr Cvek.

90 Jieyun opposed the orders for rectification on two principal grounds.

91 First, Jieyun submitted that Shieldpeak had not proved to the requisite standard that it was the common intention of the parties that Shieldpeak would retain the Net Deposit. Second, Jieyun submitted that even if this could be established, the Court should refuse to exercise discretion to rectify the second Deed because the new terms proposed would constitute a breach of 2018 freezing orders and/or the December 2019 orders.

92 As to the first ground, Jieyun noted cl 14 of the first Deed and the second Deed which provide that the written deed comprised the entire understanding of the parties. Further, it submitted that much of the affidavit evidence relied upon by Shieldpeak was inadmissible or if admissible should be accorded little weight by the Court because of its form. This included the failure of Shieldpeak's material to set out in clear and convincing terms the alleged common intention and the mutual mistake (or the basis for them). This also included that the affidavit material was vague and unclear as to the circumstances in which the first Deed and the second Deed were prepared and executed.

93 As to the 15 October 2019 email, Jieyun submitted that it was not evidence of an asserted common intention because it was sent four months before the second Deed, Shieldpeak was not a party to the email or copied to it, and the proposal is silent as to the Net Deposit.

94 As to statements allegedly made by Mr Wridgway to Mr Small and Joshua Buxton in around October 2019, Jieyun submitted that Shieldpeak was not a party to the discussions and there is no evidence that Shieldpeak was aware of the statements or responded to them in any way. Jieyun submitted they were suggestive of the terms upon which Mr Cvek was negotiating in October 2019. However, the agreement in fact reached with Shieldpeak was on more favourable terms than those discussed between Mr Wridgway and the representatives of Buxton Projects.

95 Further, Jieyun submitted that there is no evidence that the parties continued to hold the alleged common intention throughout the relevant period and in particular at the time of the second Deed. To the contrary:

(1) from the November draft until the second Deed, each version of the nomination deed expressly provided the Net Deposit would be released to Mr Cvek; and

(2) between the November draft and second Deed, the terms were negotiated and varied. However in every version of the nomination deed, there was an express term that the Net Deposit would be paid to Mr Cvek.

96 This was in circumstances where Mr Cohen did not give any evidence why the bespoke cll 4 and 6 were included and in particular whether they were included by a mistake on his part.

97 Further, Jieyun submitted that the February 2020 emails relied upon by Shieldpeak did not support the claim for rectification. The 27 February 2020 email was sent eight days after the second Deed was signed. It sought clarification of two matters. The reply was ambiguous as to whether it relates to the first or second matter. This ambiguity is confirmed because the amended nomination was never executed.

98 As to the second ground (the discretion to refuse rectification), Jieyun submitted that each of Mr Cvek, TDG and Shieldpeak had by 20 February 2020 knowledge of the 2018 freezing orders, and the December 2019 orders. It noted that, in support of its application to vary the November 2019 freezing orders, on 6 December 2019 Shieldpeak relied upon the first Cohen affidavit. That affidavit exhibited the November draft which provided for the Net Deposit to be paid to Mr Cvek.

99 Jieyun submitted that the December 2019 orders were made in reliance upon Shieldpeak's evidence that the nomination would provide for the Net Deposit to be paid to Mr Cvek. Jieyun submitted that the terms of the nomination (as rectified by Shieldpeak) go further than merely nominating Shieldpeak as purchaser. The commercial reality was that that Mr Cvek and/or TDG would transfer its rights and interest in the 1097 deposit to Shieldpeak. The transaction constitutes a 'further dealing with, disposing of or diminishing' of Mr Cvek and/or TDG's interests in the 1097 property in breach of the 2018 freezing orders and/or the December 2019 orders.

100 In response, Shieldpeak acknowledged it knew of the 2018 freezing orders and the December 2019 orders at the time of the second Deed but submitted that December 2019 orders allowed for the execution of the second Deed as rectified.

101 The principles relating to the equitable remedy of rectification for the most part are not in dispute. As the plurality said in Simic v New South Wales Land and Housing Corporation:[3]

[103] Rectification is an equitable remedy, the purpose of which is to make a written instrument "conform to the true agreement of the parties where the writing by common mistake fails to express that agreement accurately". For relief by rectification, it must be demonstrated that, at the time of execution of the written instrument sought to be rectified, there was an "agreement" between the parties in the sense that the parties had a "common intention", and that the written instrument was to conform to that agreement. Critically, it must also be demonstrated that the written instrument does not reflect the agreement" because of a common mistake. Unless those elements are established, the "hypothesis arising from the execution of the written instrument, namely that is that it is true of the parties" cannot be displaced.

[104] The issue may be approached by asking-what was the actual or true common intention of the parties? There is no requirement for communication of that common intention by express statement, but it must at least be the parties actual intentions, viewed objectively from their words or actions, and must be correspondingly held by each party.

102 As to the standard of proof of a party seeking rectification, the Courts have always made plain that 'clear and convincing proof' of the common intention is required because the plaintiff 'must displace the hypothesis arising from execution of a written instrument, namely that it is the true agreement of the parties'.[4] This was reflected in this passage from the judgment of Kiefel J (with whom French CJ concurred) in Simic:

[41] It has for some time been settled law that the existence of an antecedent agreement is not essential to the grant of relief by way of rectification and that rectification may be granted in cases where the instrument sought to be rectified is the only agreement between the parties. The focus of the courts turned to the common intention of the parties up to the time the relevant instrument was made. That intention must be proved by admissible evidence and proved to a high standard. In a passage from Fowler v Fowler], which has been cited with approval by this Court, Lord Chelmsford said that:

"a person who seeks to rectify a deed upon the ground of mistake must be required to establish, in the clearest and most satisfactory manner, that the alleged intention to which he desires it to be made conformable continued concurrently in the minds of all parties down to the time of its execution".

[42] What is necessary to be shown is the actual intention of each of the parties. This has often been referred to by intermediate appellate courts as the subjective intention of the parties. A court, in determining whether the burden of proof is discharged, may be said to view the evidence of intention objectively, in the sense that it does not merely accept what a party says was in his or her mind, but instead considers and weighs admissible evidence probative of intention. It is in this sense that statements such as that of Hodgson J in Bush v National Australia Bank Ltd, that common continuing intention "must be objectively apparent from the words or actions" of each party, may be understood.

103 Jieyun did not refer to any authority upon which a court of equity would refuse to grant rectification. Of course, equity has a discretion whether to grant relief. However, that discretion must be exercised in accordance with general equitable principles. These include, in the context of laches or unclean hands, matters of hardship or prejudice particularly to third parties.[5] However I am prepared to accept that the Court has the power to refuse rectification where such rectification would result in a breach of an order of the Court and where it would result in a prejudice to the beneficiary of that order.

Is there clear and convincing proof of the actual common intention

104 Before addressing the central issue in this counterclaim, I have concluded on the evidence before me that Mr Wridgway was the agent of Mr Cvek for the purpose of the sale of the 1097 property from Mathoura to Shieldpeak which did not proceed. I have formed this view based on the matters set out in [51] above.

105 I have also concluded on the evidence before me that Mr Joshua Buxton was the agent for his father and/or the Buxton Group before the decision to nominate Shieldpeak as purchaser and thereafter the agent of Shieldpeak for the purpose of its purchase of the 1097 property. I have formed this view based on the matters set out in [52] to [58], [71] to [74] and [77] above. For completeness, I reject the submission of Jieyun that in some way the dealings of Joshua Buxton with Mr Wridgway prior to the nomination of Shieldpeak were not on behalf of his father and/or the Buxton group and/or Shieldpeak, being the Buxton group entity ultimately chosen by Michael Buxton to be nominated to purchase the 1097 property.

106 The central issue in this counterclaim is whether it was the common intention of Mr Cvek and TDG on the one hand and Shieldpeak on the other that Shieldpeak would not repay the deposit to Mr Cvek for the 1097 property, and that the inclusion of cll 4 and 6 in the second Deed relating to the reimbursement of the deposit paid by Mr Cvek was the result of a mutual mistake.

107 Based on the evidence before me, and in light of the principles set out above, Shieldpeak has not established by clear and convincing proof such a common intention, or that the inclusion of cll 4 and 6 relating to the repayment of the deposit paid by Mr Cvek was the result of a common mistake. In summary this is in light of:

(1) the overall nature and form of the affidavit evidence relied upon by Shieldpeak to establish the alleged common intention during the relevant period October 2019 to February 2020;

(2) the failure to explain the circumstances in which agreement was reached in or about October 2019 which led to the execution of the first Deed;

(3) the failure to explain how the November draft and all subsequent versions, including the first Deed and second Deed, contained the bespoke cll 4 and 6 relating to the repayment of the deposit paid by Mr Cvek less the land development stamp duty which were entirely inconsistent with the alleged common intention;

(4) the failure to explain the circumstances in which the February 2020 agreements, in particular the second Deed, came about; and

(5) the failure of Mr Cvek to be called as a witness to give evidence about the common intention of him and TDG or to establish why he was unavailable to be called.

108 I have made these findings consistent with the principles set out above. Relevantly, those principles provide that, while there is no requirement for communication of the common intention by express statement, it must at least be each party's actual intention, viewed objectively from their words or actions. In my view, Shieldpeak has not satisfied me by clear and convincing proof of the alleged common intention, viewed objectively from the parties words or actions.

109 I am prepared to infer, on the evidence before me, that the negotiations between Mr Wridgway on the one hand and Joshua Buxton and Mr Small on the other in October 2019 proceeded on the basis that, as part of the Mathoura purchase, there would also be a purchase of the 1097 property by a Buxton entity by paying the vendor the balance of the purchase price payable under the 1097 contract. For the most part, I have reached this conclusion on the basis of [8(c)], [8(d)], [9] and [10] of the affidavit of Mr Small set out at [70] above and [7] and [8] of the first Joshua Buxton affidavit set out in [57] above. In particular, I have relied upon the paragraphs of the affidavit of Mr Small where he deposes to the details of his conversations with Mr Wridgway. Further, I have reached this conclusion on the basis of the 15 October 2019 email notwithstanding the uncertainties referred to in [66] to [69] above.

110 Further, I am prepared to infer that it is likely that Mr Wridgway had instructions from Mr Cvek to negotiate to this effect. This is in light of my conclusion in [104] above and [12] of the Wridgway affidavit.

111 However, that is far short of clear and convincing proof of the alleged common intention at all times from October 2019 until the second Deed was executed as pleaded by Shieldpeak. This is in circumstances where the evidence relied upon by Shieldpeak is limited in its scope, vague and unclear in its form, and at times objectively incorrect.

112 As to the form of the evidence relating to the key aspect of the rectification claim, namely common intention, as set out above, in [15] of the second Joshua Buxton affidavit he deposed to his 'understanding' in relation to 1097 deposit based upon 'discussions' with Mr Wridgway in October 2019. Of course, a person's 'understanding' is not the same as that person's 'intention'. However, I am prepared to accept that a person's understanding may be relevant to the determination of that person's intention. But it is not a substitute for it. Consistent with the authorities referred to above, it is necessary to establish each parties actual intention viewed objectively from their words or actions.

113 Further, as noted in the paragraphs of the first Joshua Buxton affidavit set out in [57] above, Joshua Buxton did not give evidence of the details of his discussions with Mr Wridgway which formed the basis of his 'understanding'. In my view, the failure to give evidence of the details of the discussions is relevant to whether there is clear and convincing proof of the alleged common intention and/or the outward manifestation of it.

114 So too, in [19] of his second affidavit Michael Buxton deposed to his 'understanding' in relation to the 1097 deposit at the time that 'both the First and Second Deeds of Nomination (as defined in the [third Cohen affidavit])' were entered into (i.e. 18 November 2019 and 19 February 2020)'. He also deposed that this was 'based on the information that Josh had said to me'. There are number of issues to raise about this evidence. First, as set out above, Michael Buxton was in error when he said that the 'First Deed of Nomination' was executed on 18 November 2019. This was not corrected or explained in his evidence or submissions. This affects the reliability of his evidence generally.

115 Second, Michael Buxton only deposed to his 'understanding' in relation to the deposit. In this regard I refer to my comments in [112] above. Third, he did not depose to the 'information' provided by his son Joshua which formed the basis of this 'understanding'. Once again, in my view, this is relevant to whether there is clear and convincing proof of the alleged common intention and/or the outward manifestation of it. However, I am conscious of the evidence of Joshua Buxton set out in [71] and [72] above that he explained to his father that Shieldpeak was only required to pay the balance of the purchase price to the vendor of the 1097 property.

116 As to Mr Cvek and TDG, Mr Cvek was not called as a witness and, as set out in [64] above, there was no evidence explaining why he was unavailable. The only relevant evidence relating to Mr Cvek's intentions, in addition to the documentary evidence referred to above, was that given by Mr Wridgway. The inference which I have drawn at [110] might be said to evidence an outward manifestation of Mr Cvek's intention, at least at the time that the negotiations took place and the 15 October 2019 email was sent.

117 However, and of general significance, it is not clear on the evidence before me when any agreement was in fact reached between Mr Cvek, TDG and Mathoura on the one hand and Shieldpeak on the other in relation to the sale of the Toorak properties, and whether the alleged common intention in relation to the 1097 deposit was held at or about the time of that agreement. First, as set out above, the 15 October 2019 email contained two options, only one of which was pursued. Second, the agreement in fact reached for the sale price of the 1093 property from Mathoura was different to that included in the 15 October 2019 email.

118 Third, as is evident from the chronology set out above, the deeds prepared by Mr Cohen in November and December 2019 were premised on the basis that, while Shieldpeak would refund Mr Cvek the 1097 deposit, Shieldpeak would be entitled to deduct from that sum the land development stamp duty in the sum of $376,750.[6] While there was reference to stamp duty in the 15 October 2019 email and limited reference to additional stamp duty in [7] of the first Michael Buxton affidavit, there was no evidence before me as to the agreement between the parties relating to the liability to pay the land development stamp duty in the sum of $376,750 or any other sum. Whether the liability to pay the land development stamp duty formed part of the agreement reached between Mr Cvek and Shieldpeak was unclear on the evidence before me. I note it is not referred as forming part of the Nomination Agreement in [15] and [16] of the counterclaim. I will deal with the form of relief in the counterclaim further below.

119 However, such an agreement between the parties relating to the payment of the stamp duty is consistent with the deeds prepared in November and December 2019, the first Deed and the second Deed. It is also consistent with the 27 February draft which I will address further below. Regardless, in light of cl 6.2 of all versions of the Deeds, it seems that there is a direct relationship between the 1097 deposit and the payment of the land development stamp duty. However, this relationship was not addressed at all in the affidavit evidence before me.

120 Further, and related to the last point, there was no explanation in the evidence before me as to how Mr Cohen came to prepare the draft deeds in November and December 2019 which contained bespoke clauses that were entirely contradictory with Joshua Buxton and Michael Buxton's 'understanding' of the alleged actual agreement, including a provision for Shieldpeak to deduct the land development stamp duty from the deposit which was to be paid to Mr Cvek.

121 Given that I accept that Joshua Buxton had authority to act on behalf of Shieldpeak in relation to all aspects of the purchase, there is no evidence from him or Mr Cohen regarding the instructions which were in fact given in 2019 relating to the terms upon which Shieldpeak would purchase the 1097 property, including whether Shieldpeak would reimburse Mr Cvek the deposit and the liability for, and mechanism for payment of, the land development stamp duty. This is notwithstanding that both gave evidence on this counterclaim.

122 In short, there is simply no evidence which explains why the bespoke clauses 4 and 6 were originally included in the November draft. There is also no explanation why the same terms were included in the various December drafts and in the first Deed which was signed on around 18 December 2019 despite those drafts being reviewed by the parties and amended in other respects. In my view, the absence of such evidence weighs heavily against the Court concluding that there is clear and convincing proof of any common intention and/or the outward manifestation of that intention by words or actions and whether cll 4 and 6 were included by a common mistake.

123 Further, there is no evidence as to the circumstances in which the Propertyshares contract or the second Deed were entered into. The evidence simply records that the relevant agreements were signed. As noted above, the second Deed provided that:

(1) in consideration for Shieldpeak entering into the Propertyshares contract, Mr Cvek agreed that Shieldpeak shall be nominated as the purchaser of the 1097 property under the 1097 contract;

(2) the nomination was subject to and conditional upon completion of the sale of the 1093 property from Propertyshares to Shieldpeak; and

(3) it contained the same terms in relation to the 1097 deposit as the first Deed.

124 There is no admissible evidence that Mr Wridgway was involved in the February 2020 transactions. Further, there is no evidence of discussions leading to the execution of the second Deed or that those discussions proceeded on the basis of the terms reached in late 2019. On the evidence before me:

(1) Mr Cohen told Joshua Buxton that he received the second Deed signed by Mr Cvek and TDG;

(2) Joshua Buxton then 'discovered' it did not accord with his 'understanding';

(3) Joshua Buxton then informed Mr Cohen that at all times the agreement that had been entered into between Shieldpeak and Mr Cvek was that Shieldpeak would not be required to reimburse to Mr Cvek the 1097 deposit;

(4) Joshua Buxton 'immediately' instructed Mr Cohen to prepare a further draft;

(5) as a result, Mr Cohen prepared the 27 February email and the 27 February draft;

(6) the 27 February email records that Mr Cohen had only recently received instruction that it was put to Shieldpeak that Shieldpeak would not be required to reimburse the original deposit as provided for in the second Deed;

(7) the 27 February email noted that this instruction 'has also been confirmed with Mr Mark Wridgway of RT Edgar, the selling agent, who has also been copied into this email'; and

(8) the 27 February email also sought advice as to whether there had been any land development on the 1097 site and, if so, proposed that there be further amendments to the third deed.

125 The form of the 27 February draft is significant. As noted above, it did not simply provide that the 1097 deposit was not to be reimbursed to Mr Cvek. The proposed amendments to cl 6.2 in the 27 February draft provided that Mr Cvek agreed to pay to Shieldpeak the land development stamp duty in the sum of $376,750 on or before the Due Date. As set out above, any agreement between Mr Cvek and Shieldpeak as to the liability to pay the land development stamp duty was not the subject of any affidavit evidence before me. However, the proposed amendments to cl 6.2 in the 27 February draft is clearly consistent with an agreement for Mr Cvek to pay the land development stamp duty.

126 Mr Cvek replied with a short email on the same day stating 'FYI I've advised [Mr Kalimniou] to send. It will be sent to you this evening'. While it is open to infer from this email that Mr Cvek was willing to sign the third Deed and that this is evidence of his common intention at the time of signing the first or the second Deed, I am not prepared to draw those inferences in the circumstances of this case and, in particular:

(1) without Mr Cvek giving evidence or an explanation of why he was unavailable to give evidence;

(2) in the absence of any other clear evidence of Mr Cvek's intention in relation to the repayment of the 1097 deposit at the time the first and second Deeds were signed; and

(3) in the absence of any evidence as to the agreement or intention of the liability for the land development stamp duty.

127 This is particularly so given that the effect of the 27 February draft would be to impose on Mr Cvek an obligation to pay $376,750 on the day the 27 February draft was received.

128 For completeness, I am prepared to accept that Mr Cohen was not informed that Shieldpeak would not be required to reimburse the 1097 deposit until after the second Deed was executed. I have considered whether it is appropriate in these circumstances to infer that cll 4 and 6 in the November draft and subsequent drafts were included by mistake. However, given the uncertainties in the evidence as to how the agreement or agreements between Mr Cvek and Shieldpeak were concluded and, in particular, in the absence of any evidence about the instructions received by Mr Cohen as to the basis of the agreement between Shieldpeak and Mr Cvek which led to the preparation of the November draft and subsequent drafts, I am not prepared to draw such an inference.

129 There is one other issue I wish to raise. As set out above, in its counterclaim Shieldpeak contended for the first time that the whole cl 6.2 was inserted in error and should be omitted from the second Deed as rectified. The reason for this, particularly in light of cl 6.2 of the 27 February draft (which Shieldpeak submitted Mr Cvek agreed to and was evidence of the alleged common intention) was not explained in the evidence or in submissions. Thus the rectification as sought by Shieldpeak would have the effect that, despite all the versions of the deeds (including the 27 February draft) which disclose a liability on Mr Cvek to meet the land development stamp duty (whether from the 1097 deposit or otherwise), that was never part of the actual agreement of the parties.

130 This is notwithstanding that the liability to pay the land development stamp duty was not the subject of any affidavit evidence before me. In my view, given the relationship between the repayment of the 1097 deposit and the land development stamp duty on the documentary evidence before me, a court of equity would and should be very reluctant to order the rectification of the second Deed now sought by Shieldpeak.

131 In all these circumstances, Shieldpeak has not established by clear and convincing proof that the alleged common intention was held at the relevant times or that the inclusion of cll 4 and 6 relating to the repayment of the deposit paid by Mr Cvek was the result of a common mistake. As a result I reject the claim that the second Deed should be rectified as sought in the counterclaim.

132 It is unnecessary for me to decide whether I would decline to order rectification in the exercise of my discretion. However, I have formed the view that I would not have refused to exercise my discretion to order rectification. I will set out my reasons shortly.

133 First, I am not satisfied that there was any relevant and/or knowing breach of the 2018 freezing orders or the December 2019 orders. This is in circumstance where:

(1) on the evidence before me Shieldpeak was not aware of the 2018 freezing orders at the time of the Mathoura contract which contained special condition 33;

(2) while Shieldpeak was aware of the 2018 freezing orders and the November 2019 freezing orders by early December 2019, the December 2019 orders authorised a variation of the 2018 freezing orders to permit Shieldpeak to be nominated as the purchaser of the 1097 property, albeit in the context of the Mathoura contract. The first Deed was executed as a consequence; and

(3) as to the second Deed, as set out in [46] above, the March 2020 orders specifically provided for Shieldpeak to complete the purchase of the Toorak properties under the 1097 contract. By that time, Jieyun was aware of the second Deed and of Shieldpeak's contention that it was not obliged to pay the 1097 deposit to Mr Cvek, notwithstanding the terms of the second Deed.

134 Second, the submissions of Jieyun that the December 2019 orders were made in reliance upon Shieldpeak's evidence that the nomination would provide for the Net Deposit to be paid to Mr Cvek lack a proper factual basis. It is true that the December 2019 orders were made in the context of the November draft. However, there was no evidence to the effect that Jieyun read and understood the November draft to mean that the Net Deposit would be refunded to Mr Cvek and thereby relied upon it in acting to its detriment by consenting to or not opposing the December 2019 orders.

135 In these circumstances, if the claim for rectification had been made out, I would not decline relief in the exercise of my discretion.

136 I will hear from the parties on the question of costs.

JIEYUN INTERNATIONAL INVESTMENTS PTY LIMITED (ACN 621 359 064)

SENTOSA MARKETING AND MANAGEMENT PTY LIMITED (ACN 622 804 782)

JIEYUN INTERNATIONAL INVESTMENTS PTY LIMITED (ACN 621 359 064)

[1] I have reviewed the transcript which suggests that I ruled that this paragraph was inadmissible. In my view, the transcript is inaccurate. To avoid any doubt, I consider that this paragraph is relevant and admissible.

[2] As noted above, Mr Cohen deposed that the First deed of Nomination was entered into on 18 November 2019 and the Second Deed of Nomination was entered into on 19 February 2020.

[3] [2016] HCA 47; (2016) 260 CLR 85, [103]-[14].

[4] Maralinga Pty Ltd v Major Enterprises Pty Ltd [1973] HCA 23; (1973) 128 CLR 336, 351 (Mason J); Pukallus v Cameron (1982) 180 CLR 477, 452 (Wilson J) , 456 (Brennan J); Leibler v Air New Zealand (No 2) [1999] 1 VR 1 [38] and [73] (Kenny JA, Winneke P and Phillips JA agreeing).

[5] See for example Equitable Remedies, ICF Spry (Law Book Co) 2007 at pp616-7.

[6] See cl 6.2 of each of the November, first December and second December drafts and the first Deed and the second Deed.