Plaintiff v Defendants

EQUITY - Fiduciary relationship - Whether fiduciary duties owed, and if so, whether breached - Fiduciary relationship not established on the facts - Whether plaintiff entitled to equitable compensation - Consideration of disentitling conduct - Equitable compensation not applicable - Chirnside v Fay [2006] NZSC 68; (2006) 3 NZCCLR 176 applied.

ESTOPPEL - General principles - Whether representations made - Whether plaintiff or defendant estopped from pursuing specific contractual claims - Representations not established on the facts - Bannon v Nauru Phosphate Royalties Trust [2018] VSC 532, Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 cited.

1 The business relationship between Rita Troiano - at that time known as Rita Moore - and Rosario ('Ross') Voci began with much enthusiasm over the course of a series of meetings and communications between August and November 2014. The enthusiasm with which the parties commenced their business relationship in 2014 was more than matched by the acrimony that accompanied the breakdown of that relationship in the period July to September 2016.

2 The business activity in which both participated involved the provision of services by the second defendant, PS Corporation (Aust) Pty Ltd ('PSCA'), to others involved in property development, and the entry by Mr Voci into contracts for the purchase of broad-acre future subdivisional land at Bindts Road, Epping ('Bindts Road') and 1285 Donnybrook Road, Woodstock ('Donnybrook'), and dealings concerning both Bindts Road and Donnybrook.

3 Ms Troiano and Mr Voci signed an agreement titled 'Terms and Conditions of Employment' dated 14 November 2014 ('the 14 November 2014 agreement'). The named parties to that agreement are Rita Moore and PSCA.

4 Ms Troiano claims against Mr Voci, against PSCA and against the third to eleventh defendants ('the Voci companies').

5 Ms Troiano alleges that on 14 November 2014 she entered into a joint venture agreement with Mr Voci ('the MPD Agreement'). The joint venture agreement is alleged to be partly in writing and partly to be implied. Documents relied upon as constituting the MPD Agreement comprise emails exchanged on 29 October 2014 between Ms Troiano, Mr Voci, and his personal assistant, Ms Sainato, a written proposal from Mr Voci dated 6 November 2014, and the 14 November 2014 agreement.

6 Ms Troiano alleges that upon her entry into the joint venture agreement with PSCA and Mr Voci it was agreed that:

(a) a new Major Projects Division ('MPD') would be established within PSCA to deal with 'Major Projects' to be operated and managed by her;

(b) she would be appointed as Senior Development Manager of the newly established MPD and would receive a base salary, plus superannuation;

(c) she would manage Major Projects for third parties and Major Projects which she and Mr Voci agreed to undertake together;

(d) she would have an equity and profit share entitlement in the fees derived from Major Projects managed for third parties; and

(e) she would have a 25% equity and profit share entitlement in Major Projects which she and Mr Voci agreed to undertake together.

7 The 14 November 2014 agreement is the only agreement signed by the parties. Ms Troiano contends that it binds Mr Voci personally. It lies at the heart of Ms Troiano's primary claim for breach (alternatively repudiation) of contract.

8 In the alternative, Ms Troiano seeks rectification of the 14 November 2014 agreement so as to provide that Mr Voci personally is bound by its terms. She alleges a common intention that, if she and Mr Voci were able to secure the rights to acquire Bindts Road, a special purpose vehicle or vehicles would be incorporated to purchase and develop the project, and she would have an immediate 25% equity and profit share in Bindts Road; such an arrangement was to also apply to any other 'particularly large Major Project' that she and Mr Voci agreed to undertake themselves.[1]

9 While not forming part of her pleaded case, a notable feature of the joint venture for which Ms Troiano contends is that she was not to be required to make a financial contribution to the joint venture, or to bear any financial risk, whether as a guarantor, company director or otherwise.

10 The 14 November 2014 agreement includes, in the 'Remuneration' section, item 3 of the Schedule to the agreement ('Remuneration Section'), the words 'when a particularly large 'Major Project' eventuates (such as Bindts Road, Epping) ...'.[2] Ms Troiano contends that after she began working with Mr Voci and PSCA, two 'particularly large Major Projects' eventuated: Bindts Road and Donnybrook. Ms Troiano claims to be entitled to a 25% share of equity and profit in both of those projects.

11 Mr Voci and PSCA deny the existence of the MPD Agreement as alleged. The defendants allege the 14 November 2014 agreement, defined in the Defence as the 'True Agreement', was an employment agreement between Ms Troiano and PSCA. They allege Ms Troiano remained an employee only of PSCA until 20 September 2016 when PSCA accepted her repudiation of that agreement. The defendants deny the existence of any agreement between Ms Troiano and Mr Voci personally, whether as to equity and profit share, or otherwise.

12 The defendants deny Ms Troiano's primary claim in contract and her alternative claim for rectification. They contend that as part of the True Agreement it was agreed that in the future a new company, 'PSCA Major Projects', would be established. They contend that, subject to performance conditions being met, Ms Troiano could be granted a 25% equity and 25% profit share in that company. They allege that in September 2015 Ms Troiano and Mr Voci agreed that no such company would be established and that Ms Troiano would have no entitlement to equity or profit share ('the Variation Agreement').[3]

(a) breach of fiduciary duty by Mr Voci and the Voci companies;

(b) knowing involvement in breach of fiduciary duty by PSCA and the Voci companies;

(c) inducing breach of contract on the part of Mr Voci;

(d) estoppel;

(e) misleading and deceptive conduct contrary to s 18 of sch 2 to the Competition and Consumer Act 2010 (Cth) (Australian Consumer Law) ('the ACL'); and

(f) for oppressive conduct contrary to s 233 of the Corporations Act 2001 (Cth) ('the Act').

14 The defendants deny the common intention that underpins Ms Troiano's claim for rectification. Namely that she would have an immediate 25% equity and profit share in Bindts Road if the rights to acquire Bindts Road were secured, and the same in the case of any other 'particularly large Major Project that eventuated'. They deny Donnybrook was a 'particularly large Major Project'. They also deny that it 'eventuated'.[4]

15 Mr Voci and the Voci companies deny the fiduciary duties alleged were owed or, if owed, were breached. Mr Voci, PSCA and the Voci companies deny the allegations of knowing involvement in breach of fiduciary duty. The claim against Mr Voci for inducing breach of contract is denied. Ms Troiano's claims alleging estoppel, misleading and deceptive conduct contrary to the ACL and oppression contrary to the Act are also denied.

16 The land at 130 and 150 Bindts Road was purchased by contracts of sale dated 27 July 2015 in the names of the third defendant, River Hills Estate Pty Ltd (150 Bindts Road) and the fourth defendant, River Hills Estate 2 Pty Ltd (130 Bindts Road). On 7 May 2016 the remaining four parcels of land that went to make up Bindts Road were purchased by the fifth defendant, River Hills Estate 3 Pty Ltd (100 Bindts Road), the sixth defendant, River Hills Estate 4 Pty Ltd (90 Bindts Road), the seventh defendant, River Hills Estate 5 Pty Ltd (60 Bindts Road), and the eighth defendant, River Hills Estate 6 Pty Ltd (40 Bindts Road). Each of the Bindts Road contracts were on terms that provided for settlement at least 12 months after the date of contract.

17 On 4 August 2015, Mr Voci contracted to purchase Donnybrook.

18 The Defence alleges the September 2015 Variation Agreement followed a period of poor performance by Ms Troiano. It alleges that, in the course of three meetings on 9 September 2015 and shortly thereafter, it was agreed that in consideration of Ms Troiano continuing to be employed by PSCA, she would not be provided with any profit share or equity, and that upon a replacement 'Senior Development Manager' being appointed and commencing in that position, her salary would be reduced. The Variation Agreement alleged was not in writing. In the alternative, the defendants allege that Ms Troiano is estopped from denying the Variation Agreement.

19 Ms Troiano denies the Variation Agreement. She disputes Mr Voci's account of the events of 9 September 2015 and the defendants' categorisation of the consequences of those events and the events that followed.

20 On 1 December 2015, Mr Voci nominated the tenth defendant, 1285 Donnybrook Road Pty Ltd, a company of which he is the sole director and shareholder ('1285 Donnybrook Road'), as the purchaser of Donnybrook.

21 The relationship between Ms Troiano and Mr Voci began to deteriorate by around May 2016. On 16 July 2016, Ms Troiano complained to Mr Voci that their original agreement and his word to her about percentage share had not been honoured. On 18 July 2016, Ms Troiano was handed a proposed new contract with PSCA. It provided for a reduced salary, a demotion from Senior Development Manager to Development Manager, and it did not mention equity or profit share. Despite repeated requests to sign the new contract, Ms Troiano declined to do so. On 15 September 2016, in a letter on PSCA letterhead, signed by him as its director, Mr Voci accused Ms Troiano of misconduct. On 16 September 2016, Ms Troiano responded, denying the allegations of misconduct and giving notice of her resignation. Mr Voci responded on 20 September 2016, once again in his capacity as director of PSCA, accepting Ms Troiano's resignation and making further allegations of misconduct.

22 These events give rise to competing allegations of repudiation. The Defence alleges that between July and September 2016 Ms Troiano acted in breach of the True Agreement and that her actions constituted repudiation of that agreement, which repudiation PSCA accepted on 20 September 2016.

23 Ms Troiano disputes the allegations of breach. She alleges that it was Mr Voci and PSCA that wrongfully repudiated the MPD Agreement. She pleads that on 15 September 2016 she was wrongly accused of misconduct and that by making such wrongful allegations, Mr Voci and PSCA wrongfully repudiated the MPD Agreement. She alleges that she accepted that repudiation on 16 September 2016.

24 Ms Troiano had no involvement in projects of Mr Voci, PSCA or the Voci companies after 20 September 2016.

25 In November 2017 the Bindts Road land was sold by the River Hills companies and Mr Voci to Dahua Group Melbourne Number 8 Pty Ltd ('Dahua') under a nomination agreement ('the Dahua Nomination Agreement') for approximately $74 million.[5]

26 In December 2018 changes were made in the contractual arrangements relating to Bindts Road and Donnybrook. Ms Troiano alleges that by entering into those changed contractual arrangements, Mr Voci and the defendants preferred their own interests to her interests, and acted in breach of their fiduciary duties.

27 Because of the allegations concerning those changed contractual arrangements, it is important to describe them in the introduction to these reasons, albeit briefly.

28 On 18 December 2018 Mr Voci entered into a heads of agreement ('2018 Heads of Agreement') with LIVV Developments Pty Ltd pursuant to which he agreed to revoke the nomination of 1285 Donnybrook as the purchaser of Donnybrook and to nominate a new purchaser, LIVV 1285 Donnybrook Road Pty Ltd ('LIVV 1285') in its place. A company controlled by Mr Voci, RSS Family Pty Ltd (the eleventh defendant), became a 35% shareholder in LIVV 1285. In place of PSCA as the provider of development-related services for Donnybrook, a third party was to be contracted to provide those services in return for 12% of gross profit and other financial benefits.

29 Ms Troiano claims that Mr Voci is liable for the loss of her interest in the Donnybrook project, the value of which is 25% of between $9.1 and $10.7 million, i.e. between $2.4-$2.7 million. Alternatively, she claims an entitlement to trace her 25% interest in Donnybrook into 25 of the shares in LIVV 1285 held by RSS Family Pty Ltd. She contends those shares should be declared to be held on constructive trust for her.

30 On 20 December 2018, Mr Voci, the Voci Companies and Dahua made a Deed of Variation ('Deed of Variation'), pursuant to which the nomination fee payable by Dahua in respect of Bindts Road under the Dahua Nomination Agreement was reduced by $8,475,979.

31 Ms Troiano claims an entitlement to 25% of the equity or profits derived by the Voci companies relating to Bindts Road under the Dahua Nomination Agreement, including 25% of the sum of $8,475,979, the reduced nomination fee resulting from the Deed of Variation. She also claims 25% of the profits subsequently made by Mr Voci and the Voci companies with the use of the profits they made from the development and sale of Bindts Road.

32 Ms Troiano alleges there were eight other Major Projects of the MPD in respect of which she is entitled to a 25% share of equity and profit. Mr Voci denies that the eight projects identified by Ms Troiano were 'Major Projects', or that Ms Troiano has or had any entitlement to an equity or profit share concerning any of them.

33 On 6 December 2018, a letter of demand was sent on Ms Troiano's behalf to Mr Voci in his personal capacity and in his capacity as director and shareholder of PSCA, and the Voci companies. On 14 January 2019, Ms Troiano initiated this proceeding.

34 Resolution of the key issues in dispute primarily turns on the events that took place, and on a limited number of documents brought into existence, during three different time periods:

(b) 9 September 2015 and the lead up to 9 September 2015; and

35 The trial occupied 23 days and the Court Book and Supplementary Court Book comprise approximately 13,000 pages. In addition to Ms Troiano and Mr Voci, witness statements were filed from 17 witnesses. Three of those witnesses were not called, and two were not required to attend for cross-examination. Evidence was given by witness statement with evidence of critical conversations and meetings being given orally. Due to restrictions relating to the COVID-19 pandemic, the evidence of the key protagonists, Ms Troiano and Voci, and of one of the witnesses of fact, Mr Cardamone, was given first, followed by the evidence of other lay witnesses. The main hearing was split into two separate blocks of time to facilitate the provision of expert reports which were not available at the time the trial was scheduled to commence. After the hearing concluded, the accounting experts provided a matrix setting out their competing positions as to various financial issues that continued to separate the parties.

36 The trial was very fact intensive. Many issues, of both fact and law, arose. The original statement of claim was amended on 13 September 2019 and again on 22 December 2020. That was the pleading upon which Ms Troiano relied at the commencement of the trial. The defendants pleaded to that amended statement of claim on 25 January 2021. The trial commenced on 4 February 2021. On 9 February 2021 Ms Troiano was given leave to file and serve the third further amended statement of claim ('TFASC'). The defendants pleaded to the TFASC on 15 February 2021. On 25 March 2021 they were given leave to file and serve a further amended defence ('Defence'). On 17 May 2021 Ms Troiano filed her amended reply ('Reply'). The pleadings that govern the issues for determination are the TFASC, the Defence and the Reply.

37 The events in contest took place between five and seven years prior to the trial. Ms Troiano and Mr Voci were cross-examined at great length, in each case for four days or more. Given the passage of time, contemporaneous documents, viewed in sequence, provide the most reliable evidence of the events that happened.

(a) First, an identification of the parties.

(b) Second, an identification of the lay witnesses.

(c) Third, an identification of the issues.

(d) Fourth, a discussion of the facts. This discussion is chronological and in sections. It includes findings of fact concerning disputed conversations and events in the sequence in which those matters arose at the time. It begins by recounting the factual background, followed by the period 14 August 2014 to 29 October 2014, then the MPD Agreement which involves a consideration of the period between 29 October 2014 and 14 November 2014 (including communications relied on by Ms Troiano to constitute the MPD Agreement).

(e) Fifth, departing from the factual chronology, the identification of the contract, the parties to that contract, and its terms.

(f) Sixth, returning to the factual chronology, the period November 2014 to September 2015, taking separately events relating to the work of the MPD, Bindts Road, and Donnybrook.

(g) Seventh, the Variation Agreement of 9 September 2015 and the associated conventional and promissory estoppels upon which the defendants rely.

(h) Eighth, consideration of the period October 2015 to September 2019. Included within that period is the breakdown of the relationship in 2016 and contested matters concerning repudiation.

(i) Ninth, the financial and accounting evidence, including a consideration of the expert evidence.

(j) Tenth, findings concerning the issues earlier identified for determination.

(k) Eleventh, relief.

(l) Finally, disposition.

39 Ms Troiano made four witness statements dated 4 July 2019, 20 August 2019, 20 September 2019, and May 2020.

40 Mr Voci made two witness statements dated 20 November 2020 and 3 February 2021.

41 PSCA was incorporated by Mr Voci on 22 February 2008. PSCA acts as trustee of the Kito Architecture Trust. It is a provider of services to third party property development investors and to Mr Voci and companies associated with him.

42 River Hills Estate Pty Ltd was incorporated on 22 April 2015. Mr Voci is and has been the sole shareholder and director of River Hills Estate Pty Ltd since its incorporation.

43 On 8 April 2015 Dual Occ Pty Ltd, a company of which Mr Voci was the sole director and shareholder, or its nominee, acquired the right to purchase 130 and 150 Bindts Road from the Cvetanovski family. River Hills Estate Pty Ltd was the nominee in respect of 150 Bindts Road.

44 On 27 July 2015, River Hills Estate Pty Ltd contracted to buy 150 Bindts Road from the Cvetanovski family for $13,204,800 with a deposit of $560,240 due to be paid in 120 days from the day of sale (with a $100,000 non-refundable deposit already having been paid), and the balance to be paid over 48 months.

45 On 23 November 2017, pursuant to the Dahua Nomination Agreement, River Hills Estate Pty Ltd nominated Dahua to complete the contract of sale for the purchase of 150 Bindts Road in exchange for a nomination fee of $11,428,007.14 and reimbursement of payments previously made to the Cvetanovski family of $1,914,696.

46 On 20 December 2018 River Hills Estate Pty Ltd entered into the Deed of Variation with Dahua.

47 River Hill Estate 2 Pty Ltd was incorporated on 20 May 2015. Mr Voci is and has been the sole shareholder and director of River Hill Estate 2 Pty Ltd since its incorporation.

48 On 27 July 2015, River Hills Estate 2 Pty Ltd contracted to buy 130 Bindts Road from the Cvetanovski family for $8,553,600 with a deposit of $327,680 due in 120 days (with a $100,000 non-refundable deposit already having been paid), and the balance over 48 months.

49 On 23 November 2017, pursuant to the Dahua Nomination Agreement, River Hills Estate No 2 Pty Ltd nominated Dahua to complete the contract of sale for the purchase of 130 Bindts Road in exchange for a nomination fee of $8,511,602.47 and reimbursement of payments previously made to the Cvetanovski family of $1,240,272.

50 On 20 December 2018 River Hills Estate No 2 Pty Ltd entered into the Deed of Variation pursuant to which the nomination fee payable by Dahua was reduced to $5,522,721.62.

River Hills Estate 3 Pty Ltd, River Hills Estate 4 Pty Ltd, River Hills Estate 5 Pty Ltd, River Hills Estate 6 Pty Ltd

51 Each of these companies was incorporated on 22 September 2015. Mr Voci is and has been the sole director of each of them since incorporation. Mr Voci was also the sole shareholder of each of them from 22 September 2015 until 27 April 2016, when Wollert Projects Pty Ltd, a company controlled by Mr Voci, became the sole shareholder of each of those companies.

52 On 7 May 2016, River Hills Estate 3 Pty Ltd contracted to buy 100 Bindts Road for $4,918,300 with a deposit of $491,830 payable as to $40,000 on signing, $205,915 by 2 November 2016, $245,915 by 2 May 2017 and the balance on 11 December 2018. On 23 November 2017 pursuant to the Dahua Nomination Agreement, River Hills Estate 3 Pty Ltd nominated Dahua to complete the contract relating to 100 Bindts Road in return for a nomination fee of $4,490,416.54 and reimbursement of payments made to the vendor of $491,830.

53 On 7 May 2016, River Hills Estate 4 Pty Ltd contracted to buy 90 Bindts Road for $6,117,050 with a deposit of $611,705 payable as to $40,000 on signing, and $265,852 by 2 November 2016, $305,853 by 2 May 2017 and the balance on 11 December 2018. On 23 November 2017, pursuant to the Dahua Nomination Agreement, River Hills Estate 4 Pty Ltd nominated Dahua to complete the contract relating to 90 Bindts Road in return for a nomination fee of $5,285,146.29 and reimbursement of payments made to the vendor of $611,705.

54 On 7 May 2016, River Hills Estate 5 Pty Ltd contracted to buy 60 Bindts Road Pty Ltd from David and June Freeman for $2,178,300 with a deposit of $217,830 payable as to $40,000 on signing and $68,915 by 2 November 2016, $108,915 by 2 May 2017 and the balance on 11 December 2018. On 23 November 2017, pursuant to the Dahua Nomination Agreement, River Hills Estate 5 Pty Ltd nominated Dahua to complete the contract relating to 60 Bindts Road in return for a nomination fee of $1,757,870.21 and reimbursement of payments made to the vendor of $217,830.

55 On 7 May 2016, River Hills Estate 6 Pty Ltd contracted to buy 40 Bindts Road from David and June Freeman for $4,541,550 with a deposit of $454,155, payable as to $40,000 on signing and $187,077.50 by 2 November 2016, $227,077 by 2 May 2017 and the balance on 11 December 2018. On 23 November 2017 pursuant to the Dahua Nomination Agreement, River Hills Estate 6 Pty Ltd nominated Dahua to complete the contract relating to 40 Bindts Road in return for a nomination fee of $3,013,357.34 and reimbursement of payments made to the vendor of $454,155.

56 Wollert Projects Pty Ltd was incorporated on 19 April 2016. Mr Voci is and has been its sole director and shareholder from incorporation. It holds the shares in each of the River Hills Estate companies numbered 3, 4, 5 and 6.

57 1285 Donnybrook Road was incorporated on 9 October 2015. Mr Voci is and has been its sole director and shareholder from incorporation. On 1 December 2015 Mr Voci nominated this company as the purchaser of Donnybrook.

58 Pursuant to the 2018 Heads of Agreement, Mr Voci revoked his earlier nomination in favour of 1285 Donnybrook Road as the purchaser of Donnybrook and nominated LIVV 1285 in its place.

59 RSS Family Pty Ltd was incorporated on 22 April 2015. Silvana Voci, the wife of Mr Voci, was originally its sole director and shareholder. From 15 August 2016 Mr Voci has been the sole director and shareholder in this company. RSS Family Pty Ltd is trustee of the RSS Voci Family Trust.

60 On 18 December 2018, pursuant to the 2018 Heads of Agreement, RSS Family in its capacity as trustee of the RSS Voci Family Trust, became a 35% shareholder of LIVV 1285.

61 In their closing submissions the defendants were extremely critical of Ms Troiano as a witness. They submitted that her evidence should be treated with substantial caution and that there were many examples of her prevarication, unresponsive speeches and gratuitous character attacks. They submitted that on occasion she was an unreliable and untruthful witness. The defendants accused Ms Troiano of 'tax evasion' and of making an unproven, unpleaded, but implicit case of improper conduct or bad faith.

62 The submissions concerning Ms Troiano's evidence and accusations going to her credit were both extensive and extravagant. I do not propose to make findings of such conduct against Ms Troiano. Where on contested matters I have accepted her evidence, I have said so. Where in the same context I have not accepted her evidence, I have both said so, and endeavoured to explain why.

63 I did not find Mr Voci to be an impressive witness. His evidence concerning the critical meeting on 9 September 2015 in support of the Variation Agreement was a fabrication. The email that he said he printed out and which he said formed the basis of discussion at the meeting did not exist at the time.

64 In her closing submissions, Ms Troiano did not contend for any overarching credit findings against Mr Voci and I do not propose to make any. As in the case of Ms Troiano's evidence, where I have accepted Mr Voci's evidence on contested matters, I have said so. Where I have not accepted his evidence, I have both said so and endeavoured to explain why.

65 Alfred Cardamone is a PSCA employee who gave evidence on witness statement on behalf of the defendants and was cross-examined.

66 Mr Cardamone impressed as an honest witness, doing his best to recall events that occurred a long time ago.

67 Mr Williams, from whom a witness statement was filed on behalf of the defendants, was not called and his witness statement was not tendered.

68 Ms Sainato was a PSCA employee who gave evidence on witness statement on behalf of the defendants and was cross-examined. She was employed at PSCA from 2009 until late October 2014 and again from May 2015 until 2020. Thereafter she was employed as a project manager in a building business unrelated to Mr Voci.

69 Ms Sainato was cross-examined about various payments made to her by PSCA and by Mr Voci. It is not necessary to make findings about those issues.

70 I considered Ms Sainato did her best to recall events from several years earlier.

71 Mr Stenning was one of Mr Voci/PSCA's external lawyers at times relevant to this dispute. He gave evidence on witness statement on behalf of the defendants and was cross-examined.

72 He was cross-examined about issues concerning the contracts relating to 130-150 Bindts Road and about commission entitlements relating to Bindts Road. It is not necessary to make findings about those matters.

73 Mr Stenning presented as an honest witness. There is no reason not to act on his evidence. Where relevant to contested issues I have done so.

74 Mr Terziovski is a solicitor who was retained in 2015 to act on behalf of the Cvetanovskis, the vendors of 130-150 Bindts Road. Mr Terziovski made a witness statement on behalf of Ms Troiano, gave evidence and was cross-examined. He presented as an independent and honest witness.

75 Mr Terziovski was cross-examined with a view to demonstrating that he acted for both sides of the sale transaction involving 130-150 Bindts Road. This topic is not one relevant to determination of the true issues in the proceeding. But in any case, I accept his evidence that he did not act for both sides. I accept his evidence that he never acted for PSCA or the purchasing parties, and that at all times his clients were the Cvetanovskis. I accept his evidence that he never obtained instructions to act for and nor did he open a file in the name of PSCA.

76 Mr Terziovski was cross-examined in relation to his dealings with Ms Troiano. Those dealings were quite limited and their relevance marginal.

77 Mr Rapita, a real estate agent who worked in the PSCA office and had significant involvement in the acquisition of both Bindts Road and Donnybrook, provided a witness statement and a witness statement in reply on behalf of Ms Troiano. Both statements formed part of the initial court book. Although his evidence was opened as part of Ms Troiano's case, Mr Rapita was not called and his witness statements were not tendered.

78 Angie Florence, an interior designer who was engaged by PSCA, provided a witness statement on behalf of Ms Troiano. Ms Florence was not called and her witness statement was not tendered.

79 Mr Basile (also known as Bei Yilong), a PSCA employee, gave evidence on witness statement on behalf of the defendants and was cross-examined.

80 Mr Basile graduated as an architectural design draftsman from Box Hill College of TAFE in 1987 and, after a period working in design drafting between 1995 and 2001, in 1999 began working in and out of Australia and China. In 2001, he moved to China, where he was employed in various organisations until approximately March 2014.

81 Mr Basile and his wife Ms Wang returned to Australia in 2014. After Ms Wang had begun working for PSCA, Mr Voci met with Mr Basile and engaged him to expand the business into China and in other Asian countries and throughout Australia.

82 The evidence given by Mr Basile in his witness statement included that he was 'astonished' upon learning that, according to him, Ms Troiano could not read detailed plans. Various assertions of Ms Troiano's incapability were found within his witness statement.[6] When tested on these matters, Mr Basile was unable to recount details; he said he could not specifically recall what consultants' reports led him to form such views. To the extent relevant, I regard the criticisms of Ms Troiano and her performance of her role at PSCA in his witness statement to be overstated and lacking substance.

83 Ms Wang, a PSCA employee, gave evidence on witness statement on behalf of the defendants, and was cross-examined.

84 Ms Wang is the executive assistant employed by PSCA. She commenced her employment on 22 August 2014 and dealt with Ms Troiano as part of her work.

85 Generally Ms Wang's evidence did not relate to contentious matters.

86 Mr Cheng, a retired investment consultant, a promoter of and investor in PSCA projects provided witness statements on behalf of Mr Troiano. Mr Cheng's statements were tendered, without the requirement for him to attend for cross-examination.

87 Ms Drakopoulos, a PSCA employee and architect, gave evidence on witness statement for the defendants, and was cross-examined.

88 Ms Drakopoulos is a registered architect who commenced her employment with PSCA on 31 August 2015. She remains a PSCA employee. When giving evidence, Ms Drakopoulos presented as defensive. By the tone of her evidence and her demeanour, she displayed a clear dislike, which she denied, of Ms Troiano. Where Ms Drakopoulos' evidence is not corroborated by contemporaneous documents or where her evidence conflicts with the evidence of others, it is not appropriate to act on her evidence and I have not done so.

89 Mr Pezzi, a former PSCA client, gave evidence on witness statement on behalf of the defendants, and was cross-examined.

90 Mr Pezzi was the investor in 4 Gardner Street, Richmond. Mr Pezzi gave evidence that Mr Voci is an equity investor in some of the projects in which he, Mr Pezzi, is involved in Queensland.

91 Mr Pezzi presented as an honest witness, doing his best to recall events that occurred some years earlier. I have referred, where relevant, to his evidence concerning Ms Troiano's work on the Gardner Street project. Mr Pezzi was cross-examined in relation to business dealings between companies in which he was involved and PSCA during the period corresponding to the Gardner Street project and about his more recent business dealings with Mr Voci.

92 Ms Ya-Chi 'Rachel' Edhie-Wahidin is a client of PSCA who invested in its projects. She invested in the 105 Harvest Home Road project with her brothers. Ms Edhie-Wahidin gave evidence that Ms Troiano was 'very well organised, efficient and pleasant to deal with' and gave detailed reports at their meetings about progress on that project.[7]

93 Ms Edhie-Wahidin made a witness statement on behalf Ms Troiano, and was cross-examined. I found Ms Edhie-Wahidin to be a credible witness.

94 Mr Noonan, a former PSCA employee, gave evidence on witness statement for the defendants and was cross-examined.

95 Mr Noonan was employed by PSCA between 6 March 2017 and July 2018. 95% of his time was spent on the Bindts Road, Donnybrook and Harvest Road projects. His work involved him managing an external consultant team which, in relation to Bindts Road included JCA Land Consultants ('JCA'), Tract, PGA Engineering and a geotechnical company. Mr Noonan presented as an honest and straightforward witness whose evidence could be acted upon with confidence.

96 Mr Wise is an accountant. Between October 2014 and 26 March 2020, he was employed by PSCA as a bookkeeper. Mr Wise gave evidence on witness statement on behalf of the defendants, and was cross-examined.

97 The subject matter of Mr Wise's evidence was quite limited. I do not doubt the accuracy of his evidence.

98 Mr Barrow is an information technology and business consultant who carried out IT support work for PSCA. Mr Barrow provided statements on behalf of Ms Troiano, which were tendered in a modified form. He was not required to attend for cross-examination. Where his evidence was relevant, I have referred to it in the discussion of the facts.

99 Mr Cattapan is a director of the firm of accountants who provide external accounting services to Mr Voci, to PSCA and the Voci companies. Mr Cattapan gave evidence. He is an experienced chartered accountant. He has been the accountant for Mr Voci and his companies for approximately the last eight years.

100 Mr Cattapan made an initial statement that dealt with his interaction with Ms Troiano during the period in which she worked at PSCA. He made a supplementary witness statement in which he described the use of the PSCA's MYOB accounting records for the provision of financial statements. He also set out his analysis of the profits of the Bindts Road project, the Donnybrook project and the eight other 'Major Projects', by reference to supporting financial documentation provided to him and his firm, sourced primarily from records maintained by Mr Wise and PSCA staff.

101 Mr Cattapan gave evidence and was cross-examined in relation to his original witness statement and in relation to some limited aspects of his supplementary witness statement. In relation to those factual matters I found Mr Cattapan to be a witness who did his best to be responsive when cross-examined. I found Mr Cattapan to be both honest and reliable.

102 Mr Cattapan conferred with the accounting experts, Ms Smith and Ms Wright, and was a signatory to the joint expert report of the accounting witnesses. Following separate cross-examination on his affidavits, Mr Cattapan participated in the conclave of accountants, together with Ms Smith and Ms Wright.

103 Pre-trial directions required the parties to confer and file an agreed statement of issues as contemplated by s 50 of the Civil Procedure Act 2010 (Vic). The parties were not able to agree upon the key issues in dispute. The parties filed separate statements of issues prior to the commencement of the trial.

104 When identifying the issues requiring determination, it is necessary to have regard to the final version of the pleadings, the written and oral opening submissions and to the written and oral closing submissions.

105 Ms Troiano filed submissions and a draft form of order for which she contends in respect of equitable compensation. The defendants responded to those submissions. Their response included what they contend to be the PSCA profit from 'Major Projects' and what they contend to be the maximum equitable compensation arising from the asserted joint venture.

106 The parties do not agree as to what constitutes the contract between them or as to the terms of that contract.

107 Ms Troiano alleges the MPD Agreement is a joint venture agreement between her and Mr Voci personally; an agreement partly in writing and partly implied. The emails of 29 October 2014, the 6 November 2014 letter from Mr Voci and the 14 November 2014 agreement are relied on.

108 The Defence alleges the True Agreement, constituted by the 14 November 2014 agreement, is an employment agreement between Ms Troiano and PSCA as 'Senior Development Manager - PS Major Projects Division'. The terms of the True Agreement are said to be in writing, as contained in the 14 November 2014 agreement, and to be implied.

109 Ms Troiano contends the terms of the MPD Agreement include that:

...

(e) Mr Voci could himself acquire or use a third entity controlled by him, such as Dual Occ, to acquire initial rights with respect to a particularly large Major Project in respect of which rights the plaintiff would hold a 25% beneficial interest.

(f) PSCA and/or Mr Voci would do all such things as were necessary to give effect to the plaintiff's entitlements, including taking all steps necessary to cause Newco to recognise and give effect to the plaintiff's equity and profit share entitlement in such project.[8]

110 The defendants allege the terms of the True Agreement include:

...

(l) "PSCA will provide [the plaintiff] with 10% equity and 10% profit share from PSCA Major Projects after twelve (12) months from [15 November 2014] with a further 15% on the 24th month (15 November 2016) to a total of 25% equity and profit of the division, ... [but if] a particularly large 'Major Project' eventuates, (such as Bindts Road. Epping), then we shall bypass the above timeline and immediately establish a new company, of which a total of 25% equity and 25% profit share (to a grand total of 25%) applies from the outset without the qualifying period" [item 3 of the Reference Schedule below the 3 targets enumerated therein];

(m) The plaintiff owed a duty of fidelity as employee to PSCA as her employer [implied];

(n) The plaintiff as employee owed a duty to PSCA as her employer not to use (other than in the course of PSCA's business) or misuse the confidential information of PSCA gained by her in the course of her employment [implied]; and

(o) Any rights which the plaintiff may have in respect of a profit share or equity in the MPD were subject to the plaintiff's continuing employment with PSCA [implied].[9]

111 The defendants contend that, pursuant to the True Agreement, Ms Troiano was only entitled to a 25% equity and profit share of a new company to conduct the PSCA MPD once established; a company which never was established. They allege the 14 November 2014 agreement was void for uncertainty or as an incomplete agreement to agree. Further, that if Ms Troiano is entitled to 25% of profit on management fees charged by PSCA, any such entitlement does not extend beyond fees charged by PSCA up until Ms Troiano left PSCA in September 2016.

112 The competing positions as to the contract require the Court to determine:

(a) Who are the parties to the contract?

(b) What constitutes the contract?

(c) What are the terms of the contract?

(d) Is the contract uncertain or an agreement to agree and therefore void?

113 The first page of the 14 November 2014 agreement identifies the parties and includes an offer of employment:

114 The Remuneration Section of the 14 November 2014 agreement provides:[10]

3. Remuneration:

1. First project secured $75,000.00 p/a + Superannuation - up to 15/1/15

2. $110,000.00 p/a + Superannuation - from 15/1/15 onwards

3. Third project secured $140,000.00 p/a + Superannuation

• Target for the first 12 months; Three (3) projects

• Target for the second 12 months: Three (3) projects

Target Projects can be secured from any source (company internal/external)

PSCA will provide you with 10% equity and 10% profit share from PSCA Major Projects after twelve (12) months, from the commencement date of this agreement herein, with a further 15% on the 24th month (15/11/16), to a total of 25% equity and profit of the division by the 15/11/16.

The exception to this timeline for equity/profit share, is in the instance when a particularly large 'Major Project' eventuates, (such as Bindts Rd. Epping), then we shall bypass the above timeline and immediately establish a new company, of which a total of 25% equity and 25% profit share (to a grand total of 25%) applies from the outset, without the qualifying period.

115 Ms Troiano alleges it was the common intention of herself, Mr Voci, and PSCA that Mr Voci would personally be a party to, and be bound by, the 14 November 2014 agreement. She alleges that the reference to 'we' in the final sentence of the Remuneration Section is a reference to her and Mr Voci personally. She alleges that if she and Mr Voci were able to secure the right to acquire Bindts Road on acceptable terms, a special purpose vehicle or vehicles would be incorporated to do so and to develop Bindts Road and she would immediately have a 25% equity and profit share entitlement in that project. Further, Ms Troiano alleges that the same arrangement as applied to Bindts Road was agreed to apply to any other 'particularly large Major Project' which she and Mr Voci agreed to undertake themselves. Ms Troiano pleads that if the 14 November 2014 agreement does not record the common intention, then she is entitled to rectification of that agreement.

116 The Defence denies the existence of the common intention and denies the claim for rectification. It alleges that in any case Ms Troiano is not entitled to equitable relief because of disentitling conduct.

117 The rectification claims require the Court to determine:

(a) Was there the common intention alleged?

(b) Is Ms Troiano entitled to rectification?

(c) If Ms Troiano is otherwise entitled to rectification, is that not the case by reason of the matters relied on in the Defence?

118 The defendants allege the True Agreement was varied on 9 September 2015 ('the Variation Agreement'). The Defence alleges that rather than dismiss Ms Troiano for poor performance, the True Agreement was varied on terms that:

10C1. ...

(a) PSCA would replace the plaintiff as 'Senior Development Manager' and the plaintiff would assist PSCA in the recruitment of such a replacement;

(b) PSCA would continue to employ the plaintiff at the plaintiff's existing salary for only such time as until a replacement 'Senior Development Manager' would be appointed and commence in the employ of PSCA, whereupon the plaintiff's salary would be reduced following renegotiation;

(c) PSCA would not incorporate or establish the MPD as a consequence of the plaintiff failing to bring forward any potential clients for the proposed MDP business, and as a consequence of the plaintiff failing to develop and bring forward a business proposal for agreement, as originally agreed by the plaintiff and Mr Voci prior to the plaintiff's employment; and

(d) PSCA would not provide any profit share or equity to the plaintiff in respect of the MPD or any other part of PSCA,

(the Variation Agreement).[11]

119 The Variation Agreement is alleged to have been constituted by three conversations between Mr Voci and Ms Troiano on or about 9 September 2015, each of which lasted approximately one hour. During those conversations Mr Voci raised a number of matters concerning Ms Troiano's poor performance; Ms Troiano requested that she be allowed to remain with PSCA so as to learn and gain experience, a request to which Mr Voci agreed. The case for the defendants is that at the end of the three meetings, in substance, Ms Troiano thanked Mr Voci for not dismissing her, she accepted his offer to continue her employment on the basis that she would receive a demotion, the MPD would not be incorporated, she would not receive any profit share or equity and she would assist Mr Voci to interview a replacement for her as 'Senior Development Manager'.

120 The Defence alleges that in due performance of the Variation Agreement, no steps were taken to incorporate the MPD, that Ms Troiano assisted in the interviewing of a 'Development Director', Mr Raniolo, employed from about 5 November 2015 to act as her 'superior' and to perform work that Ms Troiano had failed to perform. Further, that after Mr Raniolo proved unsuitable, that Ms Troiano further assisted in finding another 'Development Director', Mr Phillips, who was employed in that role on 5 September 2016. The Defence alleges that if there was no Variation Agreement that Ms Troiano is estopped from denying the existence of such an agreement.

121 The Variation Agreement and the estoppel allegations are denied in the Reply. The allegation that Mr Raniolo was employed as a replacement for Ms Troiano is denied. The Reply alleges that Mr Raniolo was employed to assist Ms Troiano in the work of the MPD.

122 The Variation Agreement and the defendants' related estoppel allegations require the Court to determine:

(a) whether the Variation Agreement was made; and

(b) whether an estoppel arose to the effect of the Variation Agreement on and from 9 September 2015?

123 The TFASC alleges that PSCA and Mr Voci breached the MPD Agreement including:

(a) by taking steps to defeat Ms Troiano's rights to a 25% equity and profit share in Bindts Road and Donnybrook;

(b) by failing to transfer 25% of the issued shares in the Voci companies to Ms Troiano;

(c) by failing to distribute or causing to be distributed to Ms Troiano 25% of the Dahua sale proceeds in respect of Bindts Road; and

(d) by failing to provide or cause to be provided to Ms Troiano, her equity entitlement and profit share in respect of the other Major Projects.

124 Ms Troiano alleges that, by reason of those breaches, she suffered loss and damage including the loss of a 25% equity and 25% profit share in Bindts Road and Donnybrook and loss of equity and profit share in the other Major Projects. In addition, Ms Troiano alleges that she lost the opportunity of securing such benefits in the future including the opportunity to complete 24 months' service for PSCA and to thereby become entitled to 25% of the profits of the other Major Projects and future Major Projects.

125 Separately, Ms Troiano alleges that if Mr Voci was not a party to the MPD Agreement and if PSCA alone breached that agreement, then Mr Voci induced PSCA to do so.

126 The new contract of employment provided by PSCA to Ms Troiano on 18 July 2016, if agreed to, would have reduced her annual salary from $140,000 to $110,000. It made no provision for equity or profit share. On 15 September 2016, Ms Troiano, not having signed that contract, was paid at a lower rate in accordance with the new contract and was provided with a letter accusing her of serious misconduct. On 16 September 2016 Ms Troiano provided a letter of resignation.

127 The Defence alleges breach by Ms Troiano of the True Agreement by her conduct between July and September 2016, and by her failure and refusal to deliver up PSCA's confidential information, documents and property removed by her during September 2016. The allegations of breach are denied in the Reply. Ms Troiano says that on 8 February 2019 she provided copies of all PSCA related emails to PSCA's solicitors.

128 The Defence alleges that Ms Troiano repudiated the True Agreement which repudiation PSCA accepted.

129 Concerning breach of contract/repudiation, on the pleadings the Court is required to determine:

(a) Whether the allegations of breach of contract alleged by Ms Troiano are made out;

(b) If so, whether Ms Troiano is entitled to any, and if so what, damages for breach of contract?;

(c) Whether Mr Voci induced breach of contract by PSCA;

(d) Whether the allegations of breach of contract in the Defence are made out;

(e) Whether PSCA and Mr Voci repudiated the MPD Agreement;

(f) Whether Ms Troiano repudiated the True Agreement.

130 A number of discrete questions arise on the pleadings concerning Bindts Road.

131 Was the entry into heads of agreement to purchase parcels of land at Bindts Road by Dual Occ Pty Ltd pursuant to the MPD Agreement?[12]

132 Was the incorporation of the Voci companies who contracted to purchase land at Bindts Road and the entry by those companies into contracts for the purchase of land in Bindts Road pursuant to the MPD Agreement?[13]

133 Did Bindts Road, agreed to be a 'Major Project', 'eventuate' within the meaning of the 14 November 2014 agreement?

134 Is it the case, as alleged by Ms Troiano, that pursuant to the MPD Agreement:

(a) that 25% of all rights held in respect of Bindts Road by each of the Voci companies who purchased parcels of land in Bindts Road, including any proceeds to which those companies were entitled in selling those rights, were and are held by them beneficially for Ms Troiano?

(b) alternatively, that 25% of the issued shares in those purchaser companies were and are held beneficially for Ms Troiano, and does she have the right to have those shares transferred to her name?

(c) alternatively, that 25% of all profit made and which may be made by those purchaser companies and any other associated entity into whose hands such profit is or has been distributed or directed to be distributed is held by them or by Mr Voci beneficially for Ms Troiano?

135 If Ms Troiano has an entitlement to a share of profit in respect of the Bindts Road project, what is the correct calculation of the profit to which she is entitled?

136 A number of discrete questions arise on the pleadings concerning Donnybrook.

137 Was Donnybrook a Major Project and did it 'eventuate' within the meaning of the 14 November 2014 agreement?

138 Was the execution of the contract for the purchase of Donnybrook by Mr Voci and the subsequent nomination of 1285 Donnybrook pursuant to the MPD Agreement?

139 Does or did Ms Troiano hold a 25% beneficial interest in Donnybrook?

140 Is Ms Troiano entitled to any part of the profit relating to the Donnybrook project and if so, what profit?

141 Separate claims are made by Ms Troiano concerning other 'Major Projects' and the MPD of PSCA. A number of questions arise on the pleadings concerning those claims.

142 Are any and if so which of the projects listed below 'Major Projects':

(a) 12 Craig Street, Keilor East;

(b) 57-63 Bailey Street, Belmont;

(c) 8 Hunter Street, Richmond;

(d) 15 Yarra Street, Richmond;

(e) 278 Burwood Highway, Burwood;

(f) 105 Harvest Home Road, Epping;

(g) 4 Gardner Street, Richmond;

(h) 18 Craig Street, Keilor East.

143 Is Ms Troiano entitled to 25% of all rights held or which may be held in those projects, and 25% of the profit derived by PSCA in respect of those projects and if so, what is that amount?

144 Is it the case that 25% of the proceeds received or profit made in respect of other Major Projects (excluding Bindts Road and Donnybrook) are held by PSCA on trust for Ms Troiano ('the OMP Trust')? If so:

(a) Did PSCA breach the OMP Trust by failing to distribute proceeds or profits to Ms Troiano?

(b) Did Mr Voci cause or procure breach of the OMP Trust?

(c) Is Ms Troiano entitled to trace her interest in the other Major Projects into all and any property held by Mr Voci, PSCA and any other entity associated with them that has been acquired utilising such funds and to require an accounting for account of 25% of the proceeds?

145 The questions that follow concern the claims that fiduciary duties were owed, were breached, and that equitable relief should be granted in favour of Ms Troiano.

146 Did Mr Voci and/or the Voci companies who are the third to ninth and the eleventh defendants owe Ms Troiano any and if so what fiduciary duties?

147 If yes to the preceding question, did Mr Voci and/or the Voci companies or any of them, breach those fiduciary duties?

148 Did Mr Voci and PSCA assist the third to eighth defendants to knowingly breach the Bindts Road Trust pursuant to which the rights to proceeds of sale of the Dahua sale and the profits of Bindts Road to which the third to eighth defendants were entitled were held by them as to 25% on trust for Ms Troiano?

149 Is Ms Troiano entitled to succeed in her claims for breach of trust and knowing receipt concerning the Bindts Road project?

150 Is Ms Troiano entitled to succeed in her claim for breach of fiduciary duty in respect of the Donnybrook project?

151 If there has been breach of fiduciary duty, is Mrs Troiano entitled to equitable compensation and if so, how much?

152 Alternatively, is Ms Troiano entitled to a declaration that the third to ninth and the eleventh defendants hold her interest on constructive trust or are they liable to account to her?

153 If breach of fiduciary duty is otherwise established, is Ms Troiano precluded or disentitled from seeking equitable relief by reason of the matters alleged in the Defence?

154 Separately, Ms Troiano makes claims based on estoppel and on breach of the ACL. Those claims give rise to the questions that follow.

155 Did PSCA and Mr Voci make representations to Ms Troiano that:

(a) she would receive 10% equity and 10% profit share of PSCA Major Projects commenced by the MPD after 12 months from the commencement date of the MPD Agreement and a further 15% equity and profit share on and from the 24th month (being 15 November 2016); and

(b) if she and Mr Voci secured particularly large Major Projects such as Bindts Road she would receive 25% equity in that project and a 25% share of its profit.

Ms Troiano alleges that these representations were made:

(c) in August 2014, during meetings between them;

(d) in an email dated 14 June 2015 from Mr Voci; and

(e) on 9 September 2015 when Mr Voci failed to dispute the contents of Ms Troiano's email,

156 If the Representations or any of them were made, did Ms Troiano:

(a) act in reliance upon those Representations by introducing Bindts Road to Mr Voci; and

(b) act on those Representations in accepting the position of Senior Development Manager of the MPD and continuing in that position until 16 September 2016 and in devoting her resources and expertise towards securing and/or managing Major Projects for the MPD including Bindts Road and Donnybrook and the other Major Projects.

157 Assuming Ms Troiano acted on the Representations or any of them, did Ms Troiano suffer loss of opportunity of securing rewards elsewhere of the nature represented in respect of Bindts Road and Donnybrook and the other Major Projects?

158 In circumstances where PSCA and Mr Voci have failed to fulfil the assumption that Ms Troiano would receive equity and profit share as represented, is it the case that the defendants are estopped from asserting that she does not have the beneficial entitlements, rights and profits in paragraph 72(d)(i)-(viii) of the TFASC?

159 If the estoppels alleged arise, is Ms Troiano precluded or disentitled from seeking equitable relief by reason of the matters alleged in the Defence?

Ms Troiano's claims relying upon the Corporations Act 2001 (Cth)

160 Finally, claims are made relying on the Corporations Act 2001 (Cth). The questions below arise concerning those claims.

161 Does Ms Troiano have standing to seek relief under ss 232 or 233 of the Act in respect of any of the third to eighth defendants, and in 1285 Donnybrook, or any other company nominated to complete the purchase of Donnybrook, as alleged in paragraph 83 of the TFASC?

162 If so, has the conduct of the affairs of those corporations or any of them been oppressive to, or unfairly prejudicial to, or unfairly discriminatory against Ms Troiano as a shareholder within the meaning of the Act and, if so, is she entitled to any and if so what relief under s 233 of the Act?

The parties prior to August 2014: Mr Voci and PSCA

163 In 2014, when he and Ms Troiano first met, Mr Voci was 41 years of age. He had completed year 12, he held a Certificate V in Building and in the past had completed courses in nutrition and personal training. From 1995 Mr Voci had purchased, renovated and subdivided residential properties. As at August 2014, he was the sole director and shareholder of PSCA.

164 A number of the documents prepared by Mr Voci contain spelling and grammatical errors, although generally the sense of what he intended to convey is readily ascertainable. In the past, Mr Voci experienced hearing loss in both ears and continues to experience significant difficulty with his hearing.

165 The case opened for the defendants was that PSCA is not and never has been a property developer. It is a service provider. I accept that to be the case.

166 In February 2008 PSCA, then called PNP Property Group Pty Ltd, was incorporated; on 15 February 2014, the company changed its name to PSCA. Mr Voci incorporated PSCA with the intention to use it as a base to find clients who were interested in completing a small development or subdivision.

167 In 2008, PSCA focused on offering a 'backyard' development and subdivision service. Typically that included procuring the plans, permits and building documentation necessary for the development, as well as the oversight of the construction of a second dwelling on the subdivided land. Much of the work was outsourced to external providers, such as external architects and town planners.

168 In 2009, PSCA was successful in bringing in its first clients. Mr Voci said that there was demand for PSCA's services; he worked seven days a week, as did Ms Sainato and Mr Williams.

169 In 2010, Mr Lancaster (who was contracted at PSCA to assist with sales) introduced Mr Voci to a potential major development site at Armstrong Creek. The plan was to get the project to planning permit stage and then on-sell the site, or see if he and Mr Lancaster could develop it themselves. They set up a unit trust to undertake the project. They were equal shareholders in the trustee and through their respective family trusts, equal unit holders in the unit trust that held the land. They agreed that Mr Lancaster was to contribute the initial $250,000 equity required to fund obtaining the planning permits and Mr Voci was to invest his time, expertise and as sole director of the trustee company, was intended to take on risk concerning fund raising.

170 On 28 September 2010, Mr Voci incorporated Dual Occ Pty Ltd.

171 Mr Voci said that as PSCA's business grew, it became difficult to manage external architects. Around October 2011, Mr Voci hired PSCA's first in-house architect, Mr Dutta. Around October 2011, PSCA began offering a new product called 'finder', later known as the 'locator' product.[14] By this time, the sales team had grown to 10 to 15 people.

172 In around 2012, the Armstrong Creek land was rezoned. Mr Voci said the project became far larger than he and Mr Lancaster had anticipated, and he decided not to proceed. He said that between 2010 and late 2012 the Armstrong Creek project took up a significant investment of time and money for both him and PSCA and that this distraction from PSCA's expansion caused indirect losses of revenue because he was not focused on the management of PSCA.

173 Between 2009 and 2013, Mr Voci personally pursued a proposed large scale residential development project in Frankston called 'Ario'. Mr Voci said he wanted to be a pioneer and build the tallest residential building in Frankston. He engaged architects, town planning consultants and a project manager. Despite good pre-sales, Mr Voci was unable to obtain funding. The project failed. Mr Voci suffered significant losses. He said that when this happened, PSCA suffered a stagnation of growth in its business. In early 2013, he terminated his agreement with the vendors of the Frankston land. Mr Voci said that in connection with the Ario project he learned how to use Estate Master, software commonly used in preparing financial feasibility studies for large scale developments.

174 By 2013, PSCA had brought all design work in-house and was able to charge more for each project undertaken. By this stage, Mr Voci had become a specialist in small lot development sites.

175 In late 2014, Mr Voci became interested in expanding his investor base to China. Mr Cheng had recently started working with PSCA, referring Chinese clients on a commission basis and running Chinese-language investment seminars. PSCA hired two additional Chinese-speaking employees: Anna Wang, to manage day-to-day and personal assistant duties for Mr Voci and PSCA, and her husband Mr Basile to help with sales. Mr Basile spoke fluent Mandarin and had experience in design and development, as well as in sales.

176 In the years prior to August 2014, PSCA's financial accounts reported income as follows:

(a) $73,729.23 for the 30 June 2009 year;

(b) $692,956 for the 30 June 2010 year;

(c) $1,895,325 for the 30 June 2011 year;

(d) $1,764,887 for the 30 June 2012 year;

(e) $1,264,901 for the 30 June 2013 year; and

(f) $1,507,395 for the 30 June 2014 year.[15]

177 Despite what Mr Voci said about the adverse impact of the Armstrong Creek and Ario projects on PSCA, between 2009 and 2014, including in the 2014 financial year, PSCA's total income grew.

178 By late 2014, PSCA's business involved managing or conducting small developments such as dual occupancy, small multi-unit or townhouse developments. Its business included charging a 'locator fee' to locate sites for clients to purchase, managing the planning and development process, and either managing, or on some occasions engaging directly in construction. PSCA had developed a Scope of Works ('SOW'), and feasibility study in order to estimate likely profit margins for each project. If a client accepted the proposal, the client would purchase the land and PSCA would work through the planning, design, permit and construction phases.

179 When Ms Troiano and Mr Voci first met in 2014, Ms Troiano was 38 years of age. At that time she was known as Rita Moore, Moore being an anglicised version of her husband's surname. She had a background in her family's property development business. Her profile referred to her involvement in seven luxury apartments in Toorak, 'the Corbu', at a value of $22 million, 'Boasting in-depth knowledge of the entire development process'.[16] Ms Troiano had not been a director of her family business, and nor was she a guarantor of its borrowing obligations. After the birth of her son in 2010, she had engaged in her own property development consultancy business, 'Concept to Completion'. She had the necessary skills to use Microsoft programs such as Windows and Excel, but was not proficient in specialised property development software programs such as Estate Master.

180 In 2014 Ms Troiano was looking for a paid position, a role in an established property development business that would provide her with a good income and a share of profits. The contemporaneous documents show that between August and November 2014 Ms Troiano conveyed that expectation to Mr Voci.

181 Although she was cross-examined about overstating her qualifications and experience in her profile, I do not accept the validity of those criticisms. Ms Troiano did not profess to have any post-graduate qualifications in any property-related discipline. She had experience working in her family business in property development. In 2010 when she left that business, her title was 'general manager',[17] for which she was paid $60,000-$80,000 per annum.

182 Ms Troiano's 'Concept to Completion' profile described services and skills including feasibility analysis of a proposed project, construction loan management and company cash flow charts and calculations. It emerged in cross-examination that she had earned no income in the four years prior to her meeting Mr Voci in August 2014 from her 'consultancy business'. She was criticised for not having filed a tax return in any of the 2011-2014 financial years, but there is no evidence that she received any income at all, let alone income above the tax threshold in those years.

183 It was against this background that communications first took place between Ms Troiano and Mr Voci in mid-August 2014.

184 The first meeting between Ms Troiano and Mr Voci took place at Mr Voci's office in South Melbourne on 14 August 2014. Mr Cardamone, who had commenced employment with PSCA six months earlier and whose background was in building and construction, was also present. There was general agreement between the witnesses about what was discussed.

185 In advance of the meeting, Ms Troiano provided a copy of her profile. It referred to her involvement in over 25 major projects comprising more than 100 dwellings, together with land subdivision projects. It did not assert that Ms Troiano had herself undertaken property development in her own right, or as a joint venture participant. Ms Troiano's list of services offered included provision of management and assistance including Project Feasibility Analysis to assess viability, and evaluating and monitoring project costs/budget. Skills listed included finance applications and finance proposals for presentation, construction loan management, progress payments, company cash flow charges and calculations, company financials/tax returns administration, payroll, Company Group Taxes and BAS, the preparation of sales contracts, property settlements and other sales and marketing related legal documentation.

186 It seems the initial meeting took an unexpected turn so far as Mr Cardamone was concerned. He said he and Mr Voci were originally looking for someone to assist in the PSCA building department. According to Ms Troiano's evidence, Mr Cardamone said, 'you seem to be too good for that'.[18]

187 Mr Voci outlined the services PSCA provided, including what he called his 'locator service'. He told Ms Troiano that the client would buy the property directly once it had been located for them, and his company, PSCA, would project manage the development.[19]

188 Mr Voci told Ms Troiano about difficult financial times encountered by him in 2013. He told Ms Troiano that he had a database of clients and that he was looking for someone to follow the existing PSCA business model for bigger projects. They discussed Ms Troiano's background, both business and private. Ms Troiano told Mr Voci she would not accept less than $140,000 which, she said, was a pay cut on what she was getting with her family, that she could come on board, and that she had some investors. Mr Voci said that Ms Troiano said she was able to perform feasibility studies and full due diligence, and that she had experience in some large subdivisions.

189 Ms Troiano said Mr Voci told her he had about 15,000 clients on his database.[20] She said Mr Voci said that Mr Cardamone was the head of PSCA's building department, which provided a construction service in-house, so that a 'turnkey' service was available to clients who might locate and develop a site with PSCA's assistance.[21]

190 Ms Troiano said she asked Mr Voci whether he undertook his own developments. He pointed to a model of an apartment building in Frankston. How that development proceeded was not further discussed. Mr Voci agreed with the substance of that evidence.

191 Ms Troiano said that Mr Voci told her he felt there was some 'synergy' between them and that perhaps they could do something together.[22] Ms Troiano said she told Mr Voci she was 'reviewing [her] direction', that she wanted to achieve some big things. Both of them agreed that family was important. Ms Troiano said Mr Voci said he was interested in pursuing what they could do together.[23] Mr Voci agreed most of these things were discussed, but denied he told Ms Troiano he was interested in pursuing what they could do together.

192 I do not accept that there was a discussion of Ms Troiano and Mr Voci pursuing property development projects together at this meeting. I do accept that Mr Voci said, in substance, he was interested in pursuing what they could do together.

193 Ms Troiano said she was not simply looking for a salaried position, that did not motivate her. She told Mr Voci she was ambitious and that she would like a share in whatever it is that she generates - a share in the profits of whatever she undertakes in terms of future developments. In cross-examination Mr Voci denied that Ms Troiano said she wanted a share in profits that she generated from future development. Mr Cardamone said he did not recall discussion of profit sharing. In re-examination Mr Cardamone said he probably would have remembered if profit sharing had been mentioned, because for him not to have a profit share 'would have sort of hurt a little bit'.[24]

194 Later that day, Ms Troiano sent an email thanking Mr Voci and Mr Cardamone for meeting. She said she felt there was 'fantastic synergy between us and I would be very enthusiastic to join and expand a "Dynamic" team'.

195 On 19 August 2014 Ms Troiano followed up with an email to Mr Voci and Mr Cardamone. She outlined a substantial 1500 lot subdivisional site in Tarneit for which the owner/property developer was about to receive a permit. She referred to another 750 lot project in Torquay involving the same developer. She said that if Mr Voci was interested, and the owner/developer wished to proceed, she saw a valuable opportunity to 'bring this with me over to your firm'. She said she would 'love to approach' the owner/developer with the added presence and experience of PSCA, stating 'I think that by amalgamating our resources and talents and by providing a "taskforce" and "team" (as opposed to myself, alone) we might win the project'.

196 Mr Voci responded, saying he had been 'working on a proposal for you' and would like to 'present/chat about this ASAP'. He proposed a meeting the following day.

The second meeting: 20 August 2014 and the 'Initial Agreement'

197 The second meeting took place at the South Melbourne office of PSCA on 20 August 2014.[25] It was attended by Ms Troiano and Mr Voci only.

198 Mr Voci had earlier formulated an 'Initial Agreement' on PSCA letterhead which he presented to Ms Troiano during the meeting:

Proposal - It is with pleasure that I put this proposal forward. I believe with your skill set and experience you will be a perfect candidate to head up the PSCA Major Project Division. Understanding your requirements to expand and own apart [sic] the expansion, I put forward that by meeting certain targets (agreed by both parties) within specific time lines, that you will share in the PSCA Major Projects equity and profits.

Your roll [sic] will be to head up this New Division from ground up, build a team and manage the team from the onset. In doing this with the understanding that you reach pre-set targets, I will provide you with 10% equity and 10% profit share from PSCA major projects after 12 month [sic] with a further 15% on the 24th month to a total of 25% equity and equal profit on the targets. Both targets are to be discussed prior to your engagement and agreed to by the both of us.

I .believe that we can establish ourselves a [sic] very serious player in this market by joining forces. Our current database means we will provide opportunities that will be more then enough to grow this part of the company, and that will breed more opportunities along with your own connections and previous experiences. We will ensure we build a dynamic company that will leave a legacy for our children.

Initial engagement: - No income until a project is achieved and secured.

199 The 'Initial Agreement' proposed that Ms Troiano would 'head up' the PSCA MPD and would 'share in the PSCA Major Projects equity and profits'.[26]

200 The mention of equity and profit is notwithstanding Mr Voci's denial that such matters had been raised by Ms Troiano at their first meeting and Mr Cardamone's evidence concerning that topic. I accept Ms Troiano's evidence that equity and profit share had been discussed at the initial meeting - hence the inclusion of both by Mr Voci in the 'Initial Agreement' prepared by him. As stated in the first paragraph of the Initial Agreement, what follows is Mr Voci's 'Understanding [of Ms Troiano's] requirements to expand and own apart [sic] the expansion', an understanding that could only have been derived from what was discussed at the initial meeting.[27]

201 There are a number of matters to note about the 'Initial Agreement' prepared by Mr Voci:

(a) first, the Initial Agreement concerned the 'PSCA Major Project Division', whatever that might mean, or whatever form that 'Division' might take;

(b) second, the 'equity and profits' mentioned was of the PSCA MPD, not of some other entity and not involving Mr Voci personally;

(c) third, as 'owner' of that entity (and that was so because Mr Voci both is and was the sole shareholder in PSCA), Mr Voci agreed to provide Ms Troiano first with 10%, then 15% for a total of 25% equity and profits, in that 'New Division';

(d) fourth, the entitlement to equity and profits was to come from PSCA Major Projects and the percentage entitlement was dependent upon Ms Troiano reaching pre-set but yet to be specified targets;

(e) fifth, the Initial Agreement does not say whether a subsidiary of PSCA is to be established to operate the 'New Division' or how a 'New Division' is to exist in which Ms Troiano will share in equity and profits; and

(f) sixth, the document is silent about any joint venture property development, whether a property development involving Ms Troiano and Mr Voci personally or otherwise.

202 The existing PSCA database that had been discussed at the first meeting was identified by Mr Voci in the Initial Agreement as a source of 'opportunities'. It was to be the source of work for the PSCA MPD which Ms Troiano was to head up 'from [the] ground up', building and managing a team.[28] The Initial Agreement did not specify whether other team members would be employees of PSCA or independent contractors.

203 Cross-examined about the 'Initial Agreement', Ms Troiano did not agree that Mr Voci said there was to be a new company to operate the PSCA MPD. The MPD was, she said, to be a division of the existing company. I agree that based on the text of the 'Initial Agreement', that is the case. It does not mention the incorporation of a new company. The references to a 'New Division' and to 'grow this part of the company' are consistent with a new part of the existing PSCA company in which Mr Voci personally was the sole shareholder. I accept the accuracy of Ms Troiano's evidence, albeit I consider her evidence to be informed by having read the Initial Agreement rather than by an independent recollection of what was discussed.

204 Ms Troiano said that at the second meeting they discussed their cultural backgrounds and family values and children, which Mr Voci said he hoped to have soon, and that Ms Troiano said because of her son she wanted to achieve something greater. Ms Troiano said Mr Voci told her he had clients that were waiting in the wings requiring servicing for some larger developments. Examples were discussed: a client in Burwood, and another client for a potential apartment development in Prahran. Mr Voci agreed these matters were discussed.

205 Ms Troiano said that Mr Voci asked her to consider the Initial Agreement to see if it was something she would be happy with, saying that he wanted her to be happy to perform and undertake what they were doing together in joining forces. Ms Troiano said that he told her that the remuneration was far greater than he had originally expected, that he was originally looking to recruit somebody for $80,000 and that he could not afford to pay the salary specified in the Initial Agreement until such time as several projects had been secured, but he was 'trying to find a way to make it work'.[29] Ms Troiano gave evidence that Mr Voci proposed that she work pro bono until such time as she brought in the first project. Ms Troiano said Mr Voci said that because he had clients waiting, he believed the target of three projects and therefore the larger salary of $140,000 could be reached in a fairly short amount of time.

206 Mr Voci said he told Ms Troiano she would be paid $75,000 from when she started work until 'we got the second project' and that he could not legally employ someone without paying them.[30] Leaving questions of legality or otherwise to one side, I do not accept this evidence. I accept Ms Troiano's evidence that she was asked and agreed to work 'pro bono' until the first project was secured.

207 Mr Voci said that he told Ms Troiano that if the targets were met in 12 months' time, 'we would look at opening up a major projects division company that project managed larger projects'.[31] He said what he envisaged at the time was to 'split the companies up' so that what was a major project would go into a major projects division at a later date and PSCA would still do what it was doing.[32] He said the discussion was 'high level'.[33] I do not accept that Mr Voci had an actual recollection of a discussion about splitting the companies up or otherwise of what he said was discussed. The Initial Agreement does not refer to such a split and I do not accept that one was discussed.

208 Ms Troiano said that Mr Voci said he felt they could do some work together, grow together and do developments together. She said that Mr Voci told her he was intent on opening up what he called a 'Major Projects Division within PSCA', that Ms Troiano could head up and that if the right opportunity came along, in due course, he would be happy to do developments together.[34] Mr Voci did not agree that he said they could do some developments together.

209 Mr Voci denied the reference to 'joining forces' in a MPD in the Initial Agreement was as part of the existing PSCA, a business unit of PSCA. He said he was referring to a new company called the MPD. Mr Voci said he was not referring to the immediate establishment of a new division, instead he was referring to one that was going to start in 12 months' time.

210 I do not accept Mr Voci's evidence of a 12-month deferral and of discussion at this time of a new company as truthful. It was plain from the Initial Agreement, of which he was the author, that the proposal he was putting forward, if accepted, was to come into place immediately. There was no mention of a 12 month deferral. The initial engagement was to be upon acceptance. However, Ms Troiano was not to be paid until the first project was secured - at that point $75,000 p.a., increasing with the second and third projects, to $140,000 p.a. There was no mention of a new company, the Initial Agreement referred to 'part of the company', a reference to part of PSCA.

211 The evidence of Mr Voci concerning when Ms Troiano was first to be paid was not only inconsistent with the Initial Agreement, it made very little commercial sense. On the one hand, on his version of events, Ms Troiano was to set up a new division that was not going to start for another year, yet she was to be 'on $75,000 from the first day'.[35] The oral evidence of Mr Voci that Ms Troiano would be paid $75,000 from the first day was also inconsistent with Mr Voci's witness statement in which, consistent with the Initial Agreement, he said Ms Troiano would be paid '$75,000 after securing her first project for PSCA'.[36]

212 In her September 2019 witness statement, Ms Troiano said Mr Voci told her 'we could develop the whole project stage by stage with a joint venture partner who would take the place of the financier'.[37] In cross-examination, Ms Troiano said there was discussion about doing projects and ventures together. She said she did not recall the words 'joint venture' being used, but said the word 'venture' was used.[38] She said Mr Voci told her he would consider her 'a partner' and that they would undertake projects together. When asked what they would be 'partners' in, she responded 'what we were embarking on, our projects and developing the major projects division'.[39]

213 Ms Troiano agreed the Initial Agreement proposed an expansion of PSCA into a new area, and that she would own, subject to other matters, equity and profit share in the new division. She disagreed that because the 'Initial Agreement' made no mention of 'partners' or 'joint venturers', that those matters, and in particular that she and Mr Voci would be joint venturers or development partners personally, were not discussed.

214 Ms Troiano said that during this meeting Mr Voci expressed an understanding of her desire to undertake personal developments and said the Initial Agreement was an offer in terms of profit share of anything that they undertook. That is, in addition to profit share in the MPD he was proposing to open. Mr Voci denied there was such a discussion.

215 In evidence-in-chief, Mr Voci denied any discussion of the words 'joint venture' or of any other sort of partnership arrangement during this meeting. Cross-examined, he agreed that he told Ms Troiano that since the first meeting he had been thinking about what he and Ms Troiano could do together. However, he denied telling Ms Troiano that they could do some developments together. He said they never had a discussion about undertaking developments together, and they did not discuss Ms Troiano's desire to undertake developments personally.

216 In final submissions the defendants contended that the proposition that an agreement would have been reached at the second meeting between Mr Voci and Ms Troiano to undertake joint property development ventures, with Ms Troiano not being required to contribute equity or to assume financial risk (as is her case), but to be entitled to 25% of equity and profit, was beyond commercial logic and contrary to the contemporaneous documents. I agree.

217 I do not accept Ms Troiano's evidence that joint venture property developments that she and Mr Voci could do together as 'partners', or that her desire to undertake developments personally, was discussed at this meeting. I reject her evidence that Mr Voci told her that he would consider her a partner and they would undertake projects together. Ms Troiano's evidence to that effect is not supported by the text of the Initial Agreement. Her evidence about that topic is a reconstruction, and an inaccurate one at that.

218 Ms Troiano had never previously undertaken property development projects in her own right. The two projects in which Mr Voci had previously been involved, Armstrong Creek and Ario, had failed. The discussion at this meeting was not about Ms Troiano and/or Mr Voci undertaking their own property developments. It was about providing services to others undertaking development and securing projects to enable that business to be established. That is the 'market' in which the PSCA MPD was anticipated to participate identified in the Initial Agreement; the market in which Mr Voci and Ms Troiano were hoping that, by joining forces, the PSCA MPD would become a 'very serious player'.[40]

219 On the evening of 20 August 2014, following the meeting, Mr Voci forwarded an email from Mr Cheng to Ms Troiano, referring to a project at 278 Burwood Highway and two other sites involving the same family. He wrote: 'Rita, and the games have just begun, this is one of my sales guys, read below 3 projects for PSCA major projects!! Like I said we have the clients, its just letting them know we are active'.

220 In light of the Initial Agreement and the 20 August 2014 email, I do not accept Mr Voci's later evidence that it would be necessary for Ms Troiano to bring her own clients with her as part of her engagement. I also do not accept the defendants' submission that the email exchange shows that Mr Voci was already expanding into larger developments, unaided by Ms Troiano. The very purpose of bringing Ms Troiano on board was so that PSCA could service such projects, it was to enable expansion which had not to that point in time taken place.

221 Later that night, after receipt of the 20 August 2014 email, Ms Troiano responded to Mr Voci, suggesting that after their meeting with a client of PSCA in Prahran, scheduled to take place two days later, that if he had time 'maybe we can conclude discussions about your salary/equity proposal'.

222 Ms Troiano said that a third meeting took place between them in Mr Voci's office a short time after the second meeting in the course of which they shook hands. Mr Voci said he remembered showing Ms Troiano the office, but did not recall a third meeting or shaking hands.

223 Ms Troiano said the third meeting occurred after she received some information about the Burwood client development. She said that at this meeting she told Mr Voci she had considered his proposal and was happy to start working pro bono and 'back [herself] in'.[41] They shook hands and Mr Voci showed her around the office. She said she asked Mr Voci where everyone was as there was hardly anyone in the office. She said Mr Voci replied that they were probably at lunch, but also said that it depends '...what I've got going on. I click people on and off like Lego depending on what's happening'.[42] Ms Troiano said that at the conclusion of the third meeting, it was agreed that arrangements would be made for her to meet the Prahran client.

224 Based on Ms Troiano's evidence, if there was a separate 'handshake' meeting, it must have occurred before an email was sent to the Prahran client, on 21 August 2014, to arrange a meeting at which Ms Troiano was also to be present. That email sent to the Prahran client marked the first communication to any person outside PSCA of the PSCA MPD and that Ms Troiano was the person who 'runs' that division.

225 The email from Mr Voci to the Prahran client was sent at around 9:00am on 21 August 2014. Mr Voci informed the client that he would bring Ms Troiano with him, 'she runs major projects in PSCA' and 'works with me on large scale projects'. Given the time of the email and the fact the second meeting took place on 20 August 2014, if there was a third meeting, it must have taken place either on 20 August 2014 or before 9:00am on 21 August 2014. The emails exchanged on the evening of 20 August 2014, and the email sent on the morning of 21 August 2014 to the Prahran client, tell against the existence of a third meeting. I am not persuaded there was such a meeting.

226 When Ms Troiano attended the meeting on 22 August 2014 with Mr Voci and the Prahran client, she did so as the person who 'runs major projects at PSCA'. It was put to Mr Voci in cross-examination, and he agreed, that when he made that statement, he was not being truthful. Ms Troiano gave evidence that after they met with the Prahran client, Mr Voci told her that she had better start straight away. While Mr Voci could not recall making such a statement, I accept that he did.

227 The Defence alleges that between July and August 2014 Mr Voci and Ms Troiano met, and discussed the possibility of PSCA incorporating a new separate division of PSCA, to provide project management services for large scale projects in 12 months from the commencement of her employment at PSCA if her performance was sufficient. Mr Voci asserted in his evidence that discussions to that effect took place at that time. I reject his evidence on that topic as speculative and untrue. There were no meetings at which any such a discussion occurred prior to 25 August 2014.

228 The Defence further alleges that Mr Voci and Ms Troiano discussed in July and August 2014 that 'if in fact PSCA incorporated an entity to conduct project management for large scale projects', then, subject to Ms Troiano meeting targets, she would receive '10% profit share of the project management fees received by the MPD and a 10% equity in the corporate entity conducting the MPD, and after a further 12 months if the plaintiff continued to meet targets...then her profit share of the project management fees received by the MPD and her equity entitlement would increase to 25%'.[43] I do not accept that such discussions concerning the incorporation of an entity took place in July and August 2014.

229 Ms Troiano contended that during the 11 week period between 25 August 2014 and 14 November 2014 she established the MPD of PSCA. Although in that 11 week period Ms Troiano was identified as the 'Senior Development Manager, Major Projects Division' and worked in that role, there is no evidence that the 'division' comprised anyone but Ms Troiano. In those circumstances, to say that she 'established the Major Projects Division',[44] is somewhat of an overstatement.

230 Mr Voci denied that during that same period Ms Troiano worked on actual and potential projects for PSCA. He gave evidence that between August and October 2014 Ms Troiano used PSCA's offices seven or eight times only; that she was not only not an employee of PSCA, she did not work for PSCA. I do not accept the truth of that evidence. I find that, contrary to Mr Voci's evidence, and as was her evidence, Ms Troiano worked full time at PSCA from 25 August 2014, both on actual and potential projects, without being paid for her work. Ms Troiano said that her work involved investigating opportunities, pursuing sites, reviewing document templates, participating in seminar presentations and negotiating in relation to a site at Craig Street, Keilor. I accept that evidence as true.

231 On the evening of 25 August 2014, Ms Troiano emailed Mr Voci enclosing a pro forma project management proposal in the name of Concept to Completion. The proposal set out the steps to be taken up to obtain a planning permit and the breakup of the fees to take a project to that stage.

232 Mr Voci sent an email to Ms Troiano on 29 August 2014, the end of Ms Troiano's first week. He described her work preparing a pre-purchase assessment for a property in Union Road, Ascot Vale as 'perfect'. In the same email chain later that day, he wrote 'good stuff, sounds promising, well done, many more to come'. Later again, Mr Voci wished Ms Troiano a good weekend, 'it was a good week'. In the ebullient style of their communications at the time, Ms Troiano responded, saying, 'Woo hoo! Great stuff. What a week all right, thrown into the deep end ... The only way I know! We are gonna be unstoppable. It's the start of something huge. Glad we connected'.

233 From 29 August 2014 Ms Troiano had her own email address at PSCA. By 1 September 2014, her email signature block described her as 'Senior Development Manager, Major Projects Division'. In early September 2014 Ms Troiano ordered business cards that described her role as 'Senior Development Manager - Major Projects Division.'

234 Contrary to Mr Voci's evidence, there is no doubt Ms Troiano was working full-time by the end of August 2014. On 4 September 2014, Mr Cardamone sent an email to Ms Troiano, 'Hey Rita, Ross mentioned the great work you've done within a short amount of time. Well done and keep up the great work. Great to have you part of the team'.

235 The Defence alleges that in July and August 2014 Mr Voci and Ms Troiano discussed that for PSCA to set up the proposed MPD entity, a suitable business plan would need to be put forward and presented by Ms Troiano, and agreed and approved by Mr Voci. The Defence alleges the plan was required to include a costed proposal for the hiring of new staff and expertise in order to undertake major development projects, and, was required to include a proposal for finding and engaging new major project clients. I find that none of those matters were discussed between Mr Voci and Ms Troiano in July and August 2014. The 'opening' of the MPD that took place in late August/September 2014 was without any such preconditions being discussed, imposed or agreed.

236 During the period August to October 2014, Mr Voci communicated with Ms Troiano about a number of properties including those at Union Road, Ascot Vale, 278 Burwood Highway, Burwood and 12 Craig Street, Keilor. The work performed by Ms Troiano during that time period included work relating to the projects in Prahran and at Burwood Highway. Mr Voci gave evidence that this work was 'a bit of a test run for both of us to see how we work together'.[45] While the work was being done without payment, I do not accept that it was a 'test run'. A 'test run' does not involve Mr Voci sending or copying to Ms Troiano approximately 140 emails, and her sending approximately 500 emails in relation to PSCA business. That is what happened between August and November 2014.

237 On 1 September 2014, Mr Voci asked Ms Troiano to prepare a write-up about PSCA MPD for the PSCA newsletter. Once completed, it said PSCA was excited to announce the opening of a:

'brand new division within our firm - "PSCA MAJOR PROJECTS. The creation of this new department has been the result of our clients seeking assistance and management of larger scale developments... PSCA major projects offers a complete Project Management service to facilitate your project from concept, to built form completion....Introducing Rita Moore - Leading PSCA Major Projects Division.'

This fanfare was followed by a description of Ms Troiano's experience and skills.

238 Mr Voci gave evidence that 'we had to promote ourselves as a Major Projects Section/Division/Department in order to win work so we could eventually open up a Major Projects Division ...My understanding...of Major Projects Division is a separate company', one that was never opened up.[46] I reject Mr Voci's supposed understanding as untrue.

239 On 9 September 2014 Ms Troiano sent an email to Mr Voci detailing a proposed 'Company Profile'. Under the heading 'Structures or department details' she referred, amongst other things, to 'PSCA/Dual Occ/Major Projects/our team members/Sales Dept'. When cross examined, Mr Voci said there was a department working inside PSCA, Major Projects, which was referenced as a Department. In further cross-examination he accepted that whether the MPD was called a department or a division made no difference.

240 Mr Voci did not wait until a separate company was established before promoting the MPD, first to the Prahran client in August 2014 and then to the world at large via the September 2014 newsletter. Ms Troiano was that department or division from 25 August 2014. I accept her evidence that the September 2014 newsletter, the flyer prepared on 2 October 2014 and the brochure used for the Shanghai trade fair in March 2015, all of which described the MPD as an existing division of PSCA, were documents prepared for actual or prospective clients of PSCA to advertise services that were currently being offered by PSCA. That is, as opposed to what PSCA Major Projects was intended to do in the future, as was the submission on behalf the defendants. Contrary to Mr Voci's evidence, there was no waiting for a separate company to be incorporated before the MPD could be opened up.

241 The September 2014 newsletter made no mention of any joint venture between Ms Troiano and Mr Voci. The defendants sought to rely upon Ms Troiano's failure to refer to a joint venture in this and in later PSCA publications which she prepared or of which she had knowledge, in answer to Ms Troiano's joint venture allegations. That reliance was misplaced. No significance is properly attached to the failure to mention a joint venture in publications in September/October 2014 or later in March 2015, directed to the PSCA clients, actual and prospective, including in Shanghai. Those documents were neither the time nor the place to mention projects engaged in or to be engaged in by Ms Troiano with Mr Voci personally.

242 The Defence particularised allegations that as at September 2015 Ms Troiano was unable to use basic software for project modelling using standard industry software, including Microsoft Excel, at a suitable level of proficiency. Those allegations are not made out. Well before Ms Troiano and Mr Voci signed the 14 November 2014 agreement, Mr Voci had direct experience of Ms Troiano's proficiency with feasibilities and Excel. He made no complaint about her proficiency using these programs at that time. At trial, there was a sustained attack on the quality of Ms Troiano's work, including concerning her alleged inability to carry out development feasibilities. There was no proper foundation for that attack.

243 In September 2014 Mr Voci provided a template that he had developed and used for feasibility studies to Ms Troiano. In cross-examination, Mr Voci accepted that Ms Troiano knew how to use a standard Excel spreadsheet. He refused to accept that as at September 2014 Ms Troiano not only possessed the requisite skills to complete, but had in fact completed, a feasibility of a property at 312 Beaconsfield Parade, Middle Park using his template. That refusal was not soundly based. I find that in September 2014 Ms Troiano both knew how to input data into the template that Mr Voci had provided and that she satisfactorily completed the feasibility relating to 312 Beaconsfield Parade, about which she was cross-examined.

244 Consistent with her ability to complete feasibility studies, on 5 September 2014 Ms Troiano sent a feasibility for 278 Burwood Highway to Mr Voci for 'checking' on. Mr Voci said he 'would have' sent the feasibility to Ms Troiano to 'have a look at' and 'to get an understanding of land sizes', but that the preparation of the document was by him.[47] I do not accept that Mr Voci prepared that feasibility then sent it to Ms Troiano only to have her return it to him 'for checking'.[48]

245 There were examples of other feasibility studies and of other work satisfactorily performed by Ms Troiano during the period 25 August 2014 to November 2014 investigated during the trial. On 11 September 2014, Mr Voci sent an email asking Ms Troiano to find a property 'like this in Pascoe Vale...'. The email enclosed an Excel spreadsheet and said that if Ms Troiano could find a similar property, he would pay her $1,000. Mr Voci said in relation to the Excel spreadsheet, 'all you need to change here is the purchase price and the sales prices the rest leave as is, the feso is set up, and I'll show you how to put the whole deal together for IOR [Investment Overview Report] ... this is good for you to learn as I have now [sic] one else in the company that can do these. Its not a major project but will help us indirectly'.

246 Cross-examined about a feasibility which Ms Troiano sent him on 15 October 2014 regarding a property at Canterbury Road, Forest Hill, Mr Voci did not agree that it was Ms Troiano who had prepared the feasibility. He said she 'would have worked' on the feasibility.[49] That evidence was not truthful. It was a deliberate attempt by Mr Voci to seek to convey that Ms Troiano was not competent to use the feasibility model which he had developed and PSCA used when she repeatedly demonstrated her ability to do so. What is more significant in the context of complaints about her performance in this regard in September 2015, is that Ms Troiano demonstrated her competence preparing feasibilities and related aspects of project management to Mr Voci, before they entered into any written contract.

247 On 6 October 2014, Mr Voci asked Ms Troiano to check and then fix an IOR relating to 278 Burwood Highway. In cross-examination, Mr Voci accepted that he was happy with that work.

248 On 12 October 2014, Ms Troiano sent Mr Voci an email concerning 12 Craig Street, Keilor East, an updated development proposal she had prepared. The enclosure set out the process by which the client would pay a reservation fee upon their decision to purchase the development and would then purchase the land. PSCA was then to be engaged to obtain all permits, complete the road/infrastructure works and to provide titled land lots within a 12 to 18 month period. In return, PSCA was to be paid the PSCA locator fee, the planning permit fee and the development pack fee. Once the purchaser obtained the relevant permits, PSCA was to proceed with construction of a dual occupancy development over a period of approximately six months and would provide a fixed price building contract. A project summary setting out the costs of acquisition of the land, the development costs, funding assumptions and expected outcome, including estimated profit/equity, was enclosed in the email. There was no complaint about the quality of Ms Troiano's work on 12 Craig Street at that time.

249 Ms Troiano gave evidence that 12 Craig Street, Keilor was the first site that involved the 'head locator' model and that the idea of that model was hers. The concept involved finding a large site and accommodating individual 'locator clients within a head development', getting the 'fees both ways'.[50] I accept the 'head locator model' was Ms Troiano's idea. That is so despite an elaborate story to the contrary on the part of Mr Voci that it was he and Mr Williams who developed the 'head locator model'. I find that story not to be true.

250 In his witness statement, Mr Voci said he and Mr Williams came up with the head locator model, securing a site that could accommodate 20 to 30 lots and a major investor to secure the site with PSCA to manage the subdivision and development. PSCA would separately find clients for the individual subdivided sites. In cross-examination it was not put to Ms Troiano that she had not come up with the head locator model. What was put to her was that it was 'not rocket science expanding a locator model to a head locator model.'[51]

251 In cross-examination, Mr Voci accepted that it was Ms Troiano who found the Craig Street site and who dealt with the selling agent, and that Craig Street was the first project where the head locator model was employed. Although a witness statement from Mr Williams was filed, he was not called. If the head locator model had been devised in 2013, as was Mr Voci's evidence, it would have been surprising if it had not been employed by PSCA prior to Ms Troiano joining. When it was directly put to Mr Voci that it was Ms Troiano who came up with the head locator model, Mr Voci falsely denied that was the case.

252 Although Ms Troiano worked full time at PSCA and made a valuable contribution to projects in which it was involved between August 2014 and 14 November 2014, she was not a paid employee of PSCA during that period. Nor was she working or employed as a contractor. It was not true to say, as was the evidence in Mr Voci's witness statement, that 'I decided PSCA would retain Ms Troiano's services on a contract basis from Concept to Completion'.[52] There was no such retainer. Contrary to Mr Voci's witness statement, Ms Troiano's work was not work performed 'strictly under a consulting arrangement on project-by-project basis'.[53]

253 Ms Troiano did issue one invoice for work performed for PSCA prior to 14 November 2014. The invoice was for $1100, including GST, in the name of 'Concept to Completion'. It was dated 30 September 2014. It concerned 360 Barkly Street, Footscray, and it was issued at Mr Voci's request. There was much cross-examination of Ms Troiano about the invoice, including that she was not registered for GST and that Concept to Completion had not performed any work on a paid basis for any other clients; both of which I find to be the case.

254 Contrary to Mr Voci's evidence, the invoice was not an 'instance' of Ms Troiano invoicing PSCA for services provided under contract.[54] It was the only 'instance', and then, at his request.

29 October 2014 - 5 November 2014: The first draft contract

255 Emails exchanged between Ms Troiano, Mr Voci and Ms Sainato on 29 October 2014 are relied on by Ms Troiano as one of a group of three documents said to constitute the 'MPD Agreement'. The same email exchange is relied on by Ms Troiano in support of her allegation that it was both her intention and the common intention of Mr Voci and PSCA that she would immediately have a 25% equity and profit share in any particularly large Major Project.

256 At 3:47pm on 29 October 2014, Ms Sainato emailed a 'draft contract' to Ms Troiano (copied to Mr Voci). The covering email asked her to discuss the document with Mr Voci and to send back all approved amendments before Ms Sainato finished work at PSCA on 7 November 2014. The enclosure was a standard contract titled 'Terms and Conditions of Employment' between Ms Troiano (referred to in the contract as Rita Moore) and PS Corporation (Aust) Pty Ltd (ACN 129 842 806) (i.e. PSCA). The Schedule described the position: 'Senior Project Manager - PS Major Projects Division' with a 7 November 2014 commencement date. Remuneration was listed as: first project secured - $75,000, second project secured - $110,000, and third project secured - $140,000, in each case plus superannuation. The 'targets' for the first and second 12 months were 'TBA'.

257 At 4:09pm on 29 October 2014, Ms Troiano replied to that email. She said 'at first glance' the agreement needed to include a first project salary of $100,000 as previously agreed with Mr Voci, and:

Also, as discussed, the percentage share of 25% (of Major Projects division projects) should be mentioned/included in this agreement too?

[T]hat's all in the letter of offer which I haven't sent you yet.

Ross do you want to merge this content?

258 The 'Letter of Offer' to which Ms Sainato referred to in her email was not in evidence at the trial. No person gave evidence concerning its whereabouts or its contents.

259 The request in Ms Troiano's email for inclusion of a reference to '25% (of Major Projects Division projects)' is significant; as is Mr Voci's almost immediate instruction to Ms Sainato to include such a reference in the draft contract. The email exchange signifies agreement at that point in the dealings between Ms Troiano and Mr Voci that Ms Troiano was to have a percentage share of 25% 'of Major Projects division projects'.

260 The fact that the email from Ms Troiano made no reference to the failure of the draft contract to mention joint ventures and projects to be engaged in by Mr Voci and Ms Troiano personally is also significant. Cross-examined about that omission, Ms Troiano said at that point she was 'simply addressing the Major Projects Division for projects that pertained to projects I undertook'.[55] In the context of Ms Troiano's joint venture case and the common intention alleged, her explanation for her failure to refer to 25% of joint venture projects to be carried out personally by her and Mr Voci in her 29 October 2014 email was unsatisfactory.

261 In closing submissions, an attempt was made by Ms Troiano to meet the omission by relying on communications between Ms Troiano and Mr Voci between 1 September 2014 and 7 October 2014 concerning a substantial property at 312 Beaconsfield Parade, Middle Park. That is, to seek to show that Ms Troiano and Mr Voci were considering purchasing that property themselves for development or on-sale at a profit. A review of the communications relating to Beaconsfield Parade does not make good the proposition for which Ms Troiano contends.

262 On 5 September 2014 Ms Troiano proposed a structure regarding Beaconsfield Parade 'we enter into a normal and/or nominee contract, ... BUT with a special condition that states if PSCA nominates a buyer ... PSCA is entitled to be paid the difference'. Ms Troiano prepared a feasibility analysis for the Beaconsfield Parade site. None of the documents relied on by Ms Troiano refer to her as a prospective equity participant or a person to receive a profit share from the proposed purchase or development of Beaconsfield Parade. The reference on 5 September 2014 to PSCA being entitled to be 'paid the difference' is inconsistent with Ms Troiano's common intention case where the participants are Ms Troiano and Mr Voci as property developers personally and not PSCA.

263 Even if the communications relating to Beaconsfield Parade showed Ms Troiano and Mr Voci were considering purchasing the property for themselves, the assumed fact of parallel activity concerning Beaconsfield Parade does not explain Ms Troiano's failure to refer to 25% equity and profit in personal property developments when she sent her email at 4:09pm on 29 October 2014. If there was the intention which Ms Troiano alleges was common to her, Mr Voci and PSCA, as at 29 October 2014, that email was the very occasion on which she could have been expected to refer to that intention and to request that what she says was their common intention form part of the documented agreement.

264 Ms Troiano's failure to refer to an equity and profit share of ventures to be undertaken with Mr Voci personally, when identifying what was missing from the draft contract, is consistent with the fact, as I find to be the case, that to that point in time no discussion of any joint personal property development had taken place between them. The focus up to and including 29 October 2014 was on the provision of services to others, including via the locator model. Before Bindts Road was identified, there was no property that was seriously being considered for purchase by Mr Voci, including Beaconsfield Parade. There was no trigger or impetus for any discussion between Ms Troiano and Mr Voci about an equity and profit share in personal property development.

265 The failure by Ms Troiano to refer to equity and profit share in the 29 October 2014 email tells strongly against the existence of the common intention alleged. I find that as at 29 October 2014 there was no such common intention concerning property to be purchased and developed by Ms Troiano and Mr Voci.

266 At 9:52pm on 29 October 2014, potential development land, Bindts Road, was identified for the first time in communications between Ms Troiano and Mr Voci, albeit the address was not revealed by Ms Troiano at that time. Ms Troiano emailed Mr Voci in relation to 'two potential project opportunities'. The first, 180 acres of land in Epping (being land in Bindts Road), the second, a building in Bell Street, Preston where the owner wished to undertake an apartment project but did not know how to fund it. Ms Troiano told Mr Voci she had been contacted about land, located a little past Cooper Street, Epping, by a 75 year-old owner who did not know what to do - to sell or to subdivide or otherwise. The email concluded, 'I'll follow these leads through'.

267 There was no mention in the email about either or both potential projects being suitable to be carried out by Mr Voci and Ms Troiano personally. While that is so, the light-hearted response from Mr Voci a short time later is not inconsistent with Ms Troiano's joint venture/common intention case: 'Nice 180, we can start our own suberb [sic]'.

268 In September/October 2014, a number of separate broad-acre parcels of land in Bindts Road, Epping were within the Urban Growth Boundary. There was no approved Precinct Structure Plan ('PSP') in place, a necessary precursor to subdivisional development of those parcels. However, the land in Bindts Road was the subject of the proposed Quarry Hills PSP which, if approved, would enable development to proceed.

269 On 2 November 2014 Ms Troiano visited 130-150 Bindts Road, Epping and met one of the owners, Charlie Cvetanovski. She said she asked Mr Cvetanovski not to do anything with his land before coming back to her first, and he agreed. Mr Cvetanovski also gave Ms Troiano contact details for Mr Freeman, who, together with his wife, owned 40-60 Bindts Road, another parcel of land falling within the proposed Quarry Hills PSP.

270 At 8:13pm on 2 November 2014, Ms Troiano sent an email to Mr Voci about her meeting earlier that day with Mr Cvetanovski with the subject line 'Want to own a suburb?':

...we can do a deal! Very flexible, exclusively ours, we can do an option, 1, 2, 3, 4 years! They don't know what it's worth, want us to suggest. Need to investigate council requirements, and make an offer, and suggest a deal allowing for costs. Told him I'm bringing you to meet him after we do some research. ... Vendors been told by council minimum 400 blocks. We can sell to locators for the next 10 years!!!

lol ok your on!!! Let's do it

I'm in the bigger the better.

271 Ms Troiano contended that these email exchanges show that both Ms Troiano and Mr Voci were treating Bindts Road as a possible development opportunity they might personally undertake together. The subject line, the reference to 'we' can do a deal, and the response 'I'm in', are consistent with Ms Troiano's contended for common intention. 'Lol' is a reference to laughing out loud. Mr Voci's responses remained light-hearted.

272 The lack of detail concerning the subject matter, including (at that time) the address not having been identified, the reference to selling 'locators' for ten years, PSCA's business, the lack of any identification of who might buy the land (a PSCA client or Mr Voci), and the absence of any express proposal by Ms Troiano that she and Mr Voci should personally purchase the land means that the email exchange is equivocal at best so far as Ms Troiano's common intention case is concerned. The email exchange does not provide substantive evidence that both Mr Voci and Ms Troiano were 'treating' the possible development opportunity as one they might personally do together, as is Ms Troiano's contention. The tone of the email exchange is not consistent with both parties seriously considering purchasing and developing 130-150 Bindts Road. The email exchange shows no more than a mutual enthusiasm to investigate possibilities.

273 Ms Troiano said she had a discussion with Mr Voci about Bindts Road the following day, 3 November 2014. She told him she had spent some time on site with one of the owners, and she believed they could buy the site. She said the vendors were flexible and willing to deal with her but were not in a hurry. She told Mr Voci the vendor had said he would let her and her brother-in-law, who knew the vendor, know if there was anybody else interested. She told Mr Voci it was a very valuable opportunity because the property, then zoned farming, was going through a rezoning process to be converted to residential. She said she told Mr Voci that if this came to pass, she would like to look after her brother-in-law for the referral and that Mr Voci said 'no drama, we could give him a couple of blocks in the development'.[56]

274 When Mr Voci was cross-examined, he said he did not remember having such a discussion. He did not recall Ms Troiano saying that the vendor would let her and her brother-in-law know if there was anyone else on the scene. He did not recall Ms Troiano telling him it was a valuable opportunity. He did not recall her saying the value would jump with rezoning. He also did not recall saying they could give her brother-in-law some blocks.

275 I accept Ms Troiano's evidence that there was a conversation on or around 3 November 2014 to the general effect described. The involvement of and reference to her brother-in-law are both matters that objectively she might have been expected to recall, even several years later, and also to have mentioned to Mr Voci at the time.

276 At 4:00pm on 3 November 2014 Ms Troiano sent an email to Mr Voci informing him of the address of the Cvetanovski land: '130-150 Bindts Road, Epping (or South Morang, or Wollert)'.

277 In closing submissions, Ms Troiano contended this information and the information that she conveyed to Mr Voci earlier on 3 November 2014 was valuable information. That was said to be so because the land was likely soon to be rezoned, because the vendors did not know what the land was worth and wanted Ms Troiano to suggest a price, and because of Ms Troiano's personal connection with the vendors. In closing submissions Ms Troiano contended that by providing that information, Ms Troiano was reposing trust in Mr Voci. When cross-examined, Mr Voci accepted that to be the case.

278 The 'valuable information' was provided to Mr Voci prior to entry into the 14 November 2014 agreement, but after the 29 October 2014 emails upon which Ms Troiano relies (in part) as constituting the MPD Agreement. The introduction of Mr Voci to Bindts Road, and, although less explicitly set out in the pleading, the provision of the 'valuable information', is relied on by Ms Troiano in support of the common intention alleged. Together with a number of other facts alleged, the provision of the 'valuable information' is also relied on in support of the fiduciary duties alleged to be owed by Mr Voci and the third to ninth and eleventh defendants.

279 On 6 November 2014, Mr Voci handed a letter to Ms Troiano enclosing a second draft contract. The 6 November 2014 letter and enclosure are relied on as the second group of documents constituting the 'MPD Agreement'. In the TFASC, the 6 November 2014 letter and enclosure is defined as 'the Joint Venture Proposal'.

280 The 6 November 2014 covering letter, signed by Mr Voci as Director of PSCA, said he believed Ms Troiano -

will be a perfect candidate to head up the PSCA Major Projects Division. Understanding your requirements to expand and own a part of the expansion, I put forward that by meeting certain targets (as agreed by both parties) within specified time lines, that you will share in the PSCA Major Projects equity and profits.

Your role will be to operate and facilitate this New Division from ground up, build a team and manage a team from the onset...

281 After a further reference to 'equity and profit', the letter referred to 'joining forces', and said that the opportunities in the (PSCA) database 'will be more than enough to grow this part of the company ... We will ensure to build a dynamic company that will leave a legacy for our children'.

282 Mr Voci was cross-examined about the reference to the database in the 6 November 2014 letter. He said PSCA had a 'lot of leads' on the database but even though the initial agreement was 'written that way', it 'wasn't intended to mean' that PSCA would provide the leads, rather, that both parties would need to bring in leads and clients.[57] I do not accept Mr Voci's evidence as to his intention at the time. PSCA had the leads; the offer at that time, as it was in the Initial Agreement, was an offer by PSCA to engage Ms Troiano to assist to realise the potential represented by those leads.

283 The draft contract enclosed was titled 'Terms and Conditions of Employment'. It was an offer of employment from PSCA. It provided for signature by a PSCA authorised person. It provided for Ms Troiano to sign signifying her acceptance of the offer.

284 Although defined in the TFASC as the 'Joint Venture Proposal', viewed objectively, neither the 6 November 2014 letter, nor the enclosed draft contract, provide any support for the existence of a joint venture between Ms Troiano and Mr Voci personally. Nor does either document support the existence of the common intention to undertake projects personally for which Ms Troiano contends.

285 Taken as one communication, the 6 November 2014 letter and enclosure is significant in five respects. First, it is an offer by PSCA to enter into an employment contract with Ms Troiano. Second, it is important for its confirmation by Mr Voci that Ms Troiano will 'share in the PSCA Major Projects ... 25% equity and equal profits', the detail of which is specified in the enclosed draft schedule as '10% equity and 10% profit share from PSCA major projects after 12 months with a further 15% on the 24th month to a total of 25% equity and equal profit on the targets.' Third, it is important for the reference in the covering letter to 'grow this part of the company'.[58] That is, as distinct from a new and separate company to be incorporated. Fourth, it is significant because of the absence of any reference to joint projects between Mr Voci and Ms Troiano personally, whether in the employment contract or in the covering letter. Fifth, it is significant that the letter that enclosed the contract was signed by Mr Voci as 'Director PS Corporation (Aust) Pty Ltd, Property Subdivision' and not by Mr Voci in his personal capacity.

286 While expressly referring to 'PSCA Major Projects Division' and describing the division and the entitlement to equity and profit share as 'this part of the company', the 6 November 2014 letter did not describe how the equity and profit share structure, which it promised on meeting specified targets, would be structured. The accompanying draft employment contract did not say how the 'Equity and Profits' from PSCA Major Projects would be delivered to Ms Troiano. Unlike the covering letter, the draft schedule to the employment contract did not contain a reference to 'this part of the company'.

287 It was Ms Troiano's evidence that following provision to her of the 6 November 2014 letter there were three meetings between she and Mr Voci the following day, 7 November 2014. She said she made handwritten notes on the 6 November 2014 draft contract as discussion points in advance of the first of those meetings. It was put to Ms Troiano that there was a discussion about the letter and draft contract on 6 November 2014 when it was handed to her by Mr Voci, before she made her handwritten notes. I do not accept there was such a discussion. I accept Ms Troiano's evidence that she made her notes on the document before she met with Mr Voci to discuss its contents.

288 The Revised Schedule was amended by hand as depicted below:

289 Ms Troiano said she made handwritten amendments to correct her residential address and, more importantly, that she made amendments by hand as shown above to the Revised Schedule. The amendments seek to clarify her entitlement to equity and profit. None of the amendments assert the existence of a joint venture between Ms Troiano and Mr Voci personally.

290 Ms Troiano said she inserted in handwriting in the Schedule the words 'On particularly large projects 25% is to apply from such project upon completion', after the earlier reference to equity and profit. She said when they met on 7 November 2014, Mr Voci made the notes on the right beside Items 1, 2 and 3 (under the Remuneration Section) when they were negotiating the contract in his office. I accept the accuracy of that evidence.

291 Ms Troiano said that she told Mr Voci she would like to clarify the terms of her arrangement. She asked him about the timeline pertaining to PSCA MPD projects. As part of her handwritten amendments, Ms Troiano had earlier made a note about the commencement: 'after 12 months' date - 'FROM WHEN? (15/11/14 = 10% @ 15/11/15) FROM THE COMMENCEMENT DATE HEREIN (SHOULD BE)'. The handwritten notes made by Ms Troiano on the left side of the Schedule refer to the date from which profit share and equity in the PSCA MPD is to apply. Ms Troiano said that she asked Mr Voci when the 12-month 10% and then 15% increment would commence and how that would work. In cross-examination, Mr Voci said it was 'possible' they discussed the timeline pertaining to opening the PSCA MPD.[59] I accept Ms Troiano's evidence that they did.

292 Ms Troiano referred to the draft contract being modified to say that the profits of the MPD should be from the 'commencement date herein' as was her handwritten note. She said that 'three projects from any source, (internal/external)', the reference to internal being a reference to projects sourced from PSCA, was agreed by Mr Voci to be acceptable in terms of the target aspect of the agreement. I accept Ms Troiano's evidence on those matters.

293 There is a second note to the right of the Schedule: 'on particularly large projects 25% is to apply from such project upon completion', but there is no mention of Bindts Road by name. In cross-examination Ms Troiano disagreed that the notation on the right hand side was intended to accelerate her profit share entitlement on the completion of a particularly large project. She said this note was 'to begin to address the treatment of our projects given that Bindts Road was developing in the background'.[60]

294 Looking objectively at the handwritten note on the left, the inclusion of the words, 'OF THE DIVISION' in the body of the main paragraph is inconsistent with the reference to 25% profit share in the draft document having application to a separate property development by Ms Troiano and Mr Voci personally 'outside' the division. The paragraph begins with the words 'PSCA will provide...'. The typed text reference to targets to be discussed prior to 'your engagement and agreed to by the [sic] both of parties' is a reference to targets to govern Ms Troiano's engagement by PSCA. It is not a reference to Ms Troiano and Mr Voci in their respective personal capacities. The equity and profit 'from the commencement date herein' is a reference to the date from which such equity and profit share is to apply to equity and profit of PSCA derived from PSCA Major Projects. There is a distinction proposed by Ms Troiano in the case of 'particularly large projects'. In that case, the equity and profit share is to apply 'upon completion'. Unlike other Major Projects, equity and profit share is not tied to 12-month and 24-month date milestones.

295 The notes made by hand on the draft contract by Ms Troiano do not address the topic of separate developments to be undertaken by Mr Voci and Ms Troiano personally. All of the notes concern her equity and profit share entitlement to be derived from PSCA's activities by whom, according to the draft contract, she was to be employed.

296 The third draft contract included some of the handwritten notes earlier made by Ms Troiano and discussed by she and Mr Voci. In addition, it included express reference to Bindts Road and also to a property at Victoria Avenue, Albert Park.

297 The relevant page of the third draft contract, including Ms Troiano's handwritten note is in the following form:

298 It was put to Ms Troiano that she had typed up this version of the draft contract. She denied that was so. She said she was 'relatively' sure that Ms Sainato or Mr Voci handed her this draft on 7 November 2014.[61] She said when she received the third draft, the typed changes had been made. She then made her handwritten note 'open up MP Division and whatever management fee is paid to MP'. Mr Voci said he believed Ms Troiano typed up this version. I do not agree. I accept that it was Ms Sainato who typed up this version of the draft contract. Ms Sainato gave evidence. She did not give evidence about who prepared the document. If Ms Troiano had typed up this version, she would not have included the reference to Albert Park. I find that to be so both because of the evidence she gave concerning Albert Park as a client project and also because Albert Park could not objectively be regarded as a 'particularly large project' in the same category as Bindts Road. Further, if Ms Troiano had typed up this version of the draft contract, she could have been expected to include in the typed version words to give effect to her handwritten note, rather than to make a handwritten note on the typed document.

299 Ms Troiano said that when discussing this draft she told Mr Voci the reference to 'Albert Park' did not belong in the section in which it was located because Albert Park was a client-owned project. She told Mr Voci it should not be sitting in the section of the agreement that related to the joint venture aspect of it. She said that if the MPD was opened up, any fees that were paid through that would come through there anyway, so Albert Park did not belong in the second category. I accept that Albert Park, reference to which was deleted in the next draft, was discussed. I do not accept that Ms Troiano had a recollection of a detailed discussion concerning Albert Park of which she gave evidence.

300 Ms Troiano said that in their discussions on 7 November 2014, she mentioned to Mr Voci that Bindts Road was going to be a big project. She told Mr Voci it should be specified as it would pertain to their undertaking of that project together. She said she told Mr Voci she did not feel that the document was clear in reflecting their agreement. It was her evidence that he said, 'Okay' and that he would make the changes.[62] Mr Voci disagreed with this evidence. He said they did not discuss undertaking projects together. He said the reference to Bindts Road concerned project management. He said that if someone bought that project 'and we managed it for them, then we would fast track the opening of the Major Projects Division'.[63] Mr Voci said the inclusion of a reference to Bindts Road was at Ms Troiano's request and that he agreed to that request. I accept that Bindts Road was discussed. I do not accept there was discussion of Bindts Road as a project Ms Troiano and Mr Voci would undertake together.

301 In re-examination Ms Troiano said her handwritten note on the draft applied to income from clients only and not from projects with Mr Voci. I do not agree. The note makes no such distinction. Objectively it applies to 'whatever' management fees are paid to PSCA, from whatever source.

302 As well as making her note on the draft, Ms Troiano made a separate handwritten note, the contents of which she also discussed with Mr Voci on 7 November 2014. The separate handwritten note reads:

Should a m project eventuate, we shall bypass the above timeline and establish a new company immediately of which 25% equity and profit share applies any revenue from the outset of the project

303 In Ms Troiano's amendments by hand to the 6 November 2014 draft, equity and profit share derived by PSCA from particularly large projects had been mooted. In that draft, the 25% was to apply upon completion. The separate handwritten note now made by Ms Troiano proposed two changes. First, that a new company be established 'immediately', a new topic. Second, that the 25% equity and profit share applies 'from the outset of the project' and not, as was previously the case as inserted by Ms Troiano by hand, 'upon completion'.

304 I do not accept Mr Voci's evidence that prior to Ms Troiano's handwritten note there had been discussions between he and Ms Troiano about opening up a major projects division as a separate company. The handwritten note referred for the first time to a 'new company'. Mr Voci said he thought a reference to a new company was in his first letters, 'we've always had this discussion about opening up a major projects division as a separate company'.[64] He was wrong about that. There had been no earlier discussion of a new company. The idea of a separate company and of including reference to it in the Schedule was Ms Troiano's idea.

305 When cross-examined about her separate note, Ms Troiano did not agree that the profit share and equity in the MPD would only occur if and when a new company was incorporated to operate that division and also if the specified targets were met. She did not agree that the reference to 'company' was a reference to a company to operate the major projects division of PSCA. She said the company that was to be incorporated was to undertake joint venture projects such as Bindts Road. Ms Troiano said in cross-examination that she asked Mr Voci 'how would our projects be treated? I would imagine a new company would be opened to undertake them', to which he said 'yes, that's how I'd do it'.[65] She said she told Mr Voci she would make the suggested handwritten changes, which she did soon afterwards.

306 It was put to Ms Troiano that her evidence was a reconstruction of events years after they occurred. I agree that her evidence about a discussion concerning companies was a reconstruction. I do not accept that she had any actual recollection of such a discussion.

307 Ms Troiano said that on 7 November 2014 she showed Mr Voci her handwritten note, being what she proposed to clarify their arrangements, in the event that Bindts Road or a particularly large project should be undertaken by them together. She said she suggested the separation between the two paragraphs in the Remuneration Section. She said that a new company should be opened for the purpose of projects they undertook, and that was the separating feature from the first part of the agreement. She said she told Mr Voci the first part captured management fees derived from third party or client-owned projects that would go through her division. She said she told Mr Voci that the second part of the arrangement pertained to projects that the two of them would undertake together in a separate entity. Mr Voci denied any such conversation took place. I do not accept that Ms Troiano had any actual recollection that she told Mr Voci the second part of the arrangement pertained to projects they would undertake together. Her account of the supposed discussion is inconsistent with the handwritten note. I do not accept that there was such a discussion.

308 When cross-examined, Ms Troiano said that she asked Mr Voci when income would be received from third-party projects. She said that he explained that income would be received either at the start of the projects or throughout. Ms Troiano said she told Mr Voci if they undertook their own projects they would not be deriving funds until such time as the project has been undertaken. Ms Troiano said they had a further conversation where she raised the question of what would happen if they did not complete the project, and that she was not happy with 25% being applicable only upon completion. She said she told Mr Voci that she should be entitled to 25% from the outset. She said the difference between completion or from the outset could only pertain to projects by herself and Mr Voci because everything else was third-party income. Based on the changes later made to the document, I accept there must have been some discussion about timing concerning particularly large Major Projects, but I do not accept that Ms Troiano had a recollection of what was discussed about this topic and I do not act on her evidence about that matter.

309 In cross-examination, Mr Voci said the intention he and Ms Troiano had when they struck their agreement was that they were going to open up a MPD to manage large scale projects in 12 months' time. I do not accept that there was such a discussion. It was put to Mr Voci that the last sentence of the Remuneration Section, beginning 'The exception' represents a separate agreement from the rest of the paragraph: an agreement for himself and Ms Troiano to undertake projects together. Mr Voci disagreed. He said he and Ms Troiano never had such a discussion, they 'never referenced it, it didn't happen'.[66] I accept that there was no discussion of a separate agreement between Ms Troiano and Mr Voci.

310 Viewed objectively, I consider that the matters referred to in Ms Troiano's separate handwritten note were directed to how service fees that would otherwise be derived by PSCA from a 'particularly large Major Project' should be dealt with. What her note proposed was that in the case of a project such as Bindts Road, a separate company would be established to provide services to that project. She proposed that 25% equity in, and profit received by that company from services provided to particularly large Major Projects, should flow through to her 'from the outset'. According to her note, Ms Troiano would not be required to wait until the completion of such a project to be paid. The 25% entitlement is to apply from the outset 'bypassing the timeline' of 10% equity and profit share in other projects after 12 months, and bypassing the requirement to wait until the 24th month to reach the maximum 25% of equity and profit share.

311 The timing and content of Ms Troiano's proposal makes commercial sense when the equity and profit share relates to a service provider company. In the ordinary course, it will be paid for services provided along the way, as development proceeds. It makes much less commercial sense that a property developer would agree to pay equity or profit share on a large scale project to equity participants 'from the outset of the project'. A property developer might agree immediately that a person be granted 25% equity and profit share upon commencement of the venture, however actual payment is likely to be made much later, at the earliest, only once the project becomes cash positive. The construction for which Ms Troiano contends does not sit well with the context; her note was made in the context of negotiation of an employment agreement. Nor does it sit well with the commercial realities of property development.

312 Ms Troiano said there was discussion on 7 November 2014 in which she told Mr Voci she was not in a position to fund and could not be a director. In cross-examination, Ms Troiano did not agree that being a minority shareholder would be risky; she responded by saying 'I had 25% under my contractual entitlement'.[67] She said Mr Voci was to be the director, she could not contribute financially and that was why she only had 25%. When it was put to her that there was no discussion about who would give guarantees on land purchase contracts, Ms Troiano responded by saying it was 'inherent in the fact that I'd said to Mr Voci I could not contribute to the finance'.[68] I do not accept that there was any discussion of who would be a director on 7 November 2014 or that the provision or otherwise of guarantees was 'inherent' in what was discussed on that day.

313 At 11:26am on 7 November 2014 Ms Troiano sent an email to Mr Voci saying she had amended the agreement and hoped that it captured their discussion of that day. Further, if it was okay, she would print and they could sign the document. Ms Troiano said that she printed the contract off, took it to Mr Voci in his office, and left it on his desk.

314 The enclosure to the email sent at 11:26am on 7 November 2014 is a revised Schedule in identical terms to that found in the 14 November 2014 agreement signed by Ms Troiano and Mr Voci. The Schedule is reproduced below.

315 Ms Troiano was cross-examined about the reference in the final sentence of the Remuneration Section of the document to when a 'particularly large "Major Project" eventuates such as Bindts Road'. Ms Troiano said that she told Mr Voci she was not in a position to fund such a project, and neither was he, but that if it came to pass that the project could go forward, which is why the word 'eventuates' was adopted.[69] I do not accept that Ms Troiano had any recollection of such a discussion or that there was one to that effect.

316 Ms Troiano agreed in cross-examination that once a project 'eventuated', there were a number of matters that would need to be discussed, agreed and documented, including structure, finance and the interrelationship with PSCA, none of which were specified in the 14 November 2014 agreement. Ms Troiano said that if there was a project that 'eventuated' much greater documentation would be needed. It was her evidence that at every juncture it 'evolved, it was a creation' to the point that when it did eventuate (being a reference to Bindts Road), it was with 'very little, if any, risk on the part of Mr Voci'.[70]

317 Mr Voci gave evidence that on his reading of the agreement, 'if Bindts Road "eventuated", meaning that someone bought the project and were able to charge scope of works fees and management fees, that we were then going to open up the Major Projects Division and bypass the timeline'.[71] I do not accept that Mr Voci had any actual recollection of a discussion about when a project 'eventuates'.

The final agreement: signed as the 14 November 2014 agreement

318 Ms Troiano relies upon the signed 14 November 2014 agreement as the third document constituting the MPD Agreement. The final form of the Schedule is identical to the document emailed by Ms Troiano to Mr Voci at 11.26am on 7 November 2014.

319 Ms Troiano said there was no discussion between them about the agreement between 7 and 14 November 2014. She said that Mr Voci signed the 14 November 2014 agreement in her presence after an email at 8:00am that morning. Mr Voci said there was a discussion between the two of them on 14 November 2014.

320 While nothing in particular turns on the circumstances of the signing, it appeared from Ms Troiano's evidence about what happened on 14 November 2014 that she had 'learnt' the sequence of events, including as to the signing of the agreement on 14 November 2014, by piecing together what happened based on contemporaneous documents. I do not accept that she had anything other than, at best, a very vague recollection of the events of 7 and 14 November 2014. The same is the case concerning Mr Voci.

321 Given the significance of the 14 November 2014 agreement it is appropriate to reproduce the Schedule to that agreement in full:[72]

1. Position: Senior Development Manager - PS Major Projects Division

2. Commencement date: "Part A"

15th Day of November 2014

3. Remuneration:

1. First project secured $75,000.00 p/a + Superannuation - up to 15/1/15

2. $110,000.00 p/a + Superannuation - from 15/1/15 onwards

3. Third project secured $140,000.00 p/a + Superannuation

• Target for the first 12 months; Three (3) projects

• Target for the second 12 months: Three (3) projects

Target Projects can be secured from any source (company internal/external)

PSCA will provide you with 10% equity and 10% profit share from PSCA Major Projects after twelve (12) months, from the commencement date of this agreement herein, with a further 15% on the 24th month (15/11/16), to a total of 25% equity and profit of the division by the 15/11/16.

The exception to this timeline for equity/profit share, is in the instance when a particularly large 'Major Project' eventuates, (such as Bindts Rd. Epping), then we shall bypass the above timeline and immediately establish a new company, of which a total of 25% equity and 25% profit share (to a grand total of 25%) applies from the outset, without the qualifying period.

4. Hours of work: The ordinary hours for full time employees are 40 hours per week. You are also required to work such reasonable additional hours as are either

i. necessary to perform your duties;

or

ii. required by the company

5. Job Description

• Conduct site analysis to determine best project

• Develop project concept, design and plans

• Conduct project feasibility assessment to estimate profit

• Manage Planning permit, building permit and subdivision approval

• Client management and liaison

• Structure and assist with finance requirements

• Compiling project interior and exterior fittings and finishes

• Co-ordinate ad appoint all project consultants and contractors

• Manage building construction

• Manage selling phase. Including project marketing

6. Increments - Emoluments

• Provide printing facility for projects relating to PnP Property Group Pty Ltd projects
• Liaise and support on all Company projects
• Provide a mobile iphone for business use during employment (the iphone will remain the property of the Company at all material times unless you have entered into an agreement to with PSCA and a service provider for monthly installments by which the iphone will only remain your own property once the contract has ended and any monies due from that agreement have been paid in full.).

IDENTIFICATION OF THE CONTRACT, THE PARTIES AND ITS TERMS

322 Most of the terms of the 14 November 2014 agreement are not controversial. They are found within the written agreement itself. A number of those terms are identified in paragraph 11(a) - (c) of the TFASC and paragraph 10B of the Defence.

323 Paragraph 11(d) - (e) of the TFASC alleged terms to the effect that Ms Troiano would immediately have a 25% equity and profit share entitlement in any underlying particularly large Major Projects such as Bindts Road if such a project eventuated, and that PSCA and/or Mr Voci would do all things necessary to recognise and give effect to her equity and profit share entitlement in such a project. Those terms were alleged to be express as a matter of construction of the final sentence of the Remuneration Section, and to be implied.

324 As will be apparent from the contract, issues for determination earlier identified, and from the topics about which Ms Troiano and Mr Voci were cross-examined concerning the Initial Agreement and the documents relied on by Ms Troiano to constitute the MPD Agreement, there are a number of issues of contract on which the parties disagree.

325 Before turning to the contract issues, it is convenient to briefly identify the main principles to be applied. Those principles concern the construction of commercial contracts, what constitutes a joint venture, contract incompleteness and uncertainty, and the principles to be applied for rectification.

326 The task of construction of a commercial contract is a very different task to that which is to be undertaken when rectification of a contract is proposed. In Simic v NSW Land & Housing Corporation,[73] French CJ discussed the processes required to be undertaken:[74]

18 At a conceptual level, construction and rectification of a contract are different processes. The first involves determination of the meaning of the words of the contract defined by reference to its text, context and purpose. Resort to extrinsic circumstances and things external to the contract may be necessary to identify its purpose and in determining the proper construction where there is a constructional choice. The question for constructional purposes is not about the real intentions of the parties, not what the parties meant to say, but what they actually said.

19 There has been debate in the United Kingdom about reliance upon the "real" as distinct from objectively attributed intentions of the parties in relation to the rectification of contracts. ... However, that objective test was not argued in this case and does not represent the common law of Australia as it presently stands. ...

20 There is a conceptual distinction between construction and rectification but that does not mean that there is not a close connection in their practical operation. Professor Carter has pointed to the close relationship between construction and rectification and the pragmatic view that the fundamental difference between them lies in the ability to use the prior negotiations of the parties. However, he has properly acknowledged the difference of principle between mistakes which can be corrected by construction and those for which a formal order is required, commenting that:

The fact that rectification is a remedy informed by matters such as the prevention of unconscionable conduct must still have some relevance. (footnote omitted)

As to that, it may be added that the relevance is considerable given the historical and doctrinal bases upon which rectification is granted.

327 Of construction, in Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd, Kiefel, Bell and Gordon JJ said:[75]

It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable business person be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it.

328 In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd, the French CJ, Nettle and Gordon JJ stated:[76]

The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose.

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals.

329 A commercial contract is to be construed so as to facilitate it having a commercial result and to avoid it 'making commercial nonsense or working commercial inconvenience'.[77] However, that does not permit an approach to construction so as to give a more 'businesslike operation if an interpretation different to that dictated by the language were adopted'.[78] As Nettle J observed in Ecosse, the courts are 'not authorised under the guise of construction to make a new contract for the parties at odds with the contract to which they have agreed'.[79]

330 The defendants submitted that, in cases which do not depend on the construction of a single document, what is involved is the objective determination of the question from the communications between the parties in their context and the parties' dealings over the time leading to the making of the alleged contract. This involves consideration of the subject matter of the communications and includes consideration of what the parties said or wrote.[80]

331 Where parties enter into a written agreement, the court will generally hold them to the obligations they have assumed by that agreement;[81] where parties execute a written agreement, they are bound by it.[82] Regard may be had to surrounding circumstances outside the contract as part of the construction process where, as held in Codelfa Construction Pty Ltd v State Rail Authority (NSW),[83] 'the language is ambiguous or susceptible of more than one meaning'.[84]

332 To the extent implied terms are relied on, such terms will only be implied if the implication of the term in question is consistent with the written terms and otherwise meets the test in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council,[85] namely:

for a term to be implied, the following conditions (which may overlap) must be satisfied: (1) it must be reasonable and equitable; (2) it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it; (3) it must be so obvious that 'it goes without saying'; (4) it must be capable of clear expression; (5) it must not contradict any express term of the contract.[86]

333 In Gibson Motorsport Merchandise Pty Ltd v Forbes,[87] Crennan J identified the 'recognisable and common characteristics of joint ventures' including:[88]

1. Participants hold proprietary interests in the assets of the joint undertaking, often, but not necessarily, as tenants-in-common ...

2. Participants exercise joint control of the undertaking.

3. Participants contribute to the joint undertaking, not necessarily equally; such contributions may be disparate ...

4. Participants in the joint undertaking enjoy rights and assume obligations, which are often several, and calculated by reference to ownership of shares and/or contributions made.

5. Participants have a joint (or community of) interest in the performance of the undertaking's purpose ...

6. Participants associate in the undertaking for mutual commercial gain which can be mutual profits.

334 In Carter on Contract, the general principle concerning incompleteness is identified in the following terms:[89]

Incomplete agreement void

An agreement is void for incompleteness if the parties have failed to agree a term which the law regards as necessary for the agreement to be a contract, or if the parties have not reached agreement on a term which the parties themselves regarded as necessary for finalisation of their negotiations.

335 In Booker Industries Pty Ltd v Wilson Parking (QLD) Pty Ltd,[90] Gibbs CJ, Murphy and Wilson JJ said:[91]

It is established by authority, both ancient and modern, that the courts will not lend their aid to the enforcement of an incomplete agreement, being no more than an agreement of the parties to agree at some time in the future. Consequently, if the lease provided for a renewal "at a rental to be agreed" there would clearly be no enforceable agreement.

(a) where there is an intention to enter a binding agreement, the court will if possible give effect to that intention by overcoming difficulties said to arise from uncertainty or incompleteness;[93]

(b) the fact that the form of words adopted may allow a party a latitude of choice as to the manner in which the stipulation is carried into effect does not render the agreement void;[94]

(c) the task of the court is to ascertain the intention of the parties and in so doing "no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements".[95]

337 Concerning uncertainty and incompleteness, the defendants submitted:

240. For a contract to be binding it must be sufficiently certain, that is, it must be both clear and complete.[96] ... If a contract is not sufficiently certain it may be void or the uncertain part may be severed.[97] The test of severance is really a test of what is essential.

...

243. An agreement that contains an uncertain term or combination of terms may be saved by the court simply severing the offending part or parts from the contract. Severance can be used in cases where uncertainty stems from incompleteness as well as from ambiguity.[98]

338 In support of their uncertainty contention the defendants referred to the observations of Menzies J in Thorby v Goldberg:[99]

It is a first principle of the law of contracts that there can be no binding and enforceable obligation unless the terms of the bargain, or at least it's essential or critical terms, have been agreed upon. So, there is no concluded contract where an essential or critical term is expressly left to be settled by future agreement of the parties. Again, there is no binding contract where the language used is so obscure and incapable of any precise or definite meaning that the court is unable to attribute to the parties any particular contractual intention.

339 So far as uncertainty in construction is concerned, in Upper Hunter District Council v Australian Chilling and Freezing Co Ltd,[100] Barwick CJ said:[101]

... a contract of which there can be more than one possible meaning or which when construed can produce in its application more than one result is not therefore void for uncertainty. As long as it is capable of a meaning, it will ultimately bear that meaning which the courts, or in an appropriate case, an arbitrator, decides is its proper construction: and the court or arbitrator will decide its application. The question becomes one of construction, of ascertaining the intention of the parties, and of applying it. Lord Tomlin's words in this connexion in Hillas & Co. Ltd. v. Arcos Ltd. [1932] UKHL 2; (1932) 147 LT 503, at p 512, ought to be kept in mind. So long as the language employed by the parties, to use Lord Wright's words in Scammell (G.) & Nephew Ltd. v. Ouston (1941) AC 251 is not "so obscure and so incapable of any definite or precise meaning that the Court is unable to attribute to the parties any particular contractual intention", the contract cannot be held to be void or uncertain or meaningless. In the search for that intention, no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements. Thus will uncertainty of meaning, as distinct from absence of meaning or of intention, be resolved.

340 Concerning rectification, in Simic the plurality (Gageler, Nettle and Gordon JJ), said as follows:[102]

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 the 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 execution of the written instrument, namely, that it is the true agreement 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.

341 The defendants submitted that a contract cannot be rectified on the ground that it does not represent the common intention of the parties unless it appears clearly what their common intention was and that that intention existed at the time of the execution of the instrument sought to be rectified.[103] The defendants further submitted that the burden on a claimant seeking rectification of a written agreement is a heavy one.[104] Ms Troiano accepted the presumption that a written document executed by the parties is the true record of their agreement.[105] However, Ms Troiano submitted that, if by common mistake the writing fails to express that agreement accurately, the court will rectify the mistake.[106]

342 The standard of proof required for rectification was described by Lyons J in Jieyun International Investments Pty Ltd v Toorak Development Group Pty Ltd:[107]

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'. 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.

343 It is not the principles to which I have referred that are in contest in this case. It is their application. It is to that task that I now turn concerning the contract.

344 It is necessary to identify the parties to the contract; whether the agreement in question be the MPD Agreement or the True Agreement.

345 Ms Troiano alleges the MPD Agreement is both in writing - constituted by the 29 October 2014 emails, the 6 November 2014 'Joint Venture Proposal' and the 14 November 2014 agreement - and to be implied. Although not a document relied on in the TFASC as constituting the MPD Agreement, in closing submissions in support of a personal joint venture Ms Troiano also placed reliance on the Initial Agreement.

346 Ms Troiano submitted that although Mr Voci signed the 14 November 2014 agreement as the 'authorised representative of PSCA', the joint venture agreement was an agreement between the two of them as natural persons. She submitted that this was for several reasons. First, on the basis that the clear intention of the final sentence under the Remuneration Section is an agreement to establish an incorporated joint venture, with the other joint venturer being Mr Voci personally. That is said to be the case viewed in the context of the entirety of communications between Ms Troiano and Mr Voci intended to govern projects, such as Bindts Road, that Mr Voci and Ms Troiano would undertake together. Second, because in August 2014 Ms Troiano and Mr Voci had discussed doing ventures together. Third, the use of 'we' in the final sentence of the Remuneration Section, to be contrasted with the use of 'PSCA' in the previous sentence, shows that different treatment was intended. Fourth, the final sentence of the Remuneration Section was drafted by Ms Troiano and approved of by Mr Voci. Ms Troiano would not have used the word 'we' to refer to PSCA alone.

347 Ms Troiano relied on references in the Initial Agreement, of which Mr Voci was the author, to 'I put this proposal', 'I believe', 'I put forward', 'I will provide', 'I believe we can establish ourselves' and 'we will ensure that we build a dynamic company that will leave a legacy for our children' as signifying an intention on the part of Mr Voci to contract and to be bound personally. She submitted that the words 'equity and profit share', first used by Mr Voci in the Initial Agreement, meant that she had an ownership share in PSCA's rights in respect of projects which she, Mr Voci and/or PSCA agreed to undertake together, and that she was entitled to a share of the profits from such projects, however generated, and regardless of what form they took, whether they derived from income from fees, development profits or capital gains on sale.

348 The defendants submitted that none of the core documents relied on to constitute the MPD Agreement support, or are consistent with, Mr Voci as a party bound personally to a joint venture agreement. They submitted the Initial Agreement similarly provides no support for such a finding. They submitted the parties to the 14 November 2014 agreement were exclusively PSCA and Ms Troiano. Four key propositions were advanced by the defendants in support of their submission. First, if the agreement were to constitute a joint venture with Mr Voci personally, it would have required him in his individual capacity to be a party to it. The parties are clear, they are PSCA and Ms Troiano. Those parties are the named parties and the persons who executed the agreement. The contract is addressed to Ms Troiano from PSCA and executed at the signature panel by 'PS Corporation (Aust) Pty Ltd - Authorised Person', with an additional signature panel at the Schedule for signing by the 'Authorised Representative of the Company'. Second, the agreement itself states in the recital, 'We are pleased to offer you employment with the Company on the terms...set out below'. Similar reference is made to the Company throughout. Third, nowhere is Mr Voci referred to as a party. The agreement refers to 'the Company' in clauses 7, 8, 9, 14, 16-23. PSCA or 'the Company' are also variously used in clauses 3, 4 and 6 of the Schedule. No operative obligations are expressed to exist on the part of anyone under the agreement other than the Company and Ms Troiano. Fourth, in none of the communications that preceded the signing of the 14 November 2014 agreement was it ever suggested or proposed that Mr Voci would be personally a party to the agreement entitled 'Terms & Conditions of Employment'. That includes the Initial Agreement. Earlier communications including handwritten amendments and notes by Ms Troiano were said to be inconsistent with Mr Voci as a party personally to the agreement. For example, Ms Troiano inserted the word 'division' in her 29 October 2014 email when referring to profits; she did not insert a reference to joint venture projects. When making notes on the 6 November 2014 document, Ms Troiano added the words 'upon completion'. It was submitted the reference to 'completion' shows that profit share was contemplated on management fees paid to the MPD, rather than a profit share of the development itself.

349 Opposing the proposition that there was a joint venture agreement between Ms Troiano and Mr Voci personally, the defendants relied heavily on the nature of the 14 November 2014 agreement: in their submission, a conventional employment contract and no more. They submitted that clauses 8, 14, 16, 21 and 22 are clauses which concern employment only. The restraint clause, clause 19(a), refers to restraint from acting 'in competition with the Company', a clear reference to PSCA. The Schedule refers to a salary and superannuation and termination on 14 days' notice, all matters consistent with a pure employment agreement.

350 Ms Troiano submitted both as a matter of construction of the Remuneration Section, and as an element of the common intention she shared with Mr Voci, that she was not required to make a financial contribution towards projects which she, Mr Voci and/or PSCA undertook together. She submitted that Mr Voci never mentioned any such requirement and there is no suggestion that she had the financial capacity to be able to have agreed to it.

351 The defendants responded by submitting the personal joint venture agreement for which Ms Troiano contended is one calculated to achieve 'commercial nonsense' or 'commercial inconvenience' and a decidedly 'uncommercial result'.[108] They submitted that nowhere did the parties contemplate a property development joint venture, let alone one in which Mr Voci would solely bear 100% of the commercial risk and yet (somehow) Ms Troiano would, without any financial contribution, have a 25% equity and profit share in any Major Project property development taken up by Mr Voci or companies controlled by or associated with him.

352 I agree with the defendants. I do not agree that, looking at the matter objectively, Mr Voci is personally a party to a joint venture agreement with Ms Troiano. That is the case whether the relevant agreement is the MPD Agreement or is one solely constituted by the 14 November 2014 agreement. None of the three documents relied on for the MPD Agreement support the existence of a joint venture agreement between Ms Troiano and Mr Voci personally.

353 Taking each of the documents relied on in turn, beginning with the only signed agreement, I consider that the parties to the 14 November 2014 agreement are the named parties: PSCA and Ms Troiano. The agreement is fundamentally, according to its express terms, an employment contract between those named parties. It is framed as an employment contract: the employer, PSCA, is identified, as is the employee, Ms Troiano. Mr Voci signed the agreement as PSCA's 'Authorised Representative of the Company'. As submitted on behalf of the defendants, there is no reference to Mr Voci by name in the 14 November 2014 agreement. He is not a party to that agreement.

354 The second document relied on by Ms Troiano, the 6 November 2014 letter and the enclosed draft employment contract are defined in the TFASC as the 'Joint Venture Proposal'. Both documents come from PSCA. The letter is on PSCA letterhead. It is signed by Mr Voci as director of PSCA. The draft contract is between PSCA and Ms Troiano. There is no mention of Mr Voci personally entering into a joint venture. The 6 November 2014 documents do not match the definition attributed to them in the TFASC. They would more accurately be defined as PSCA's employment proposal. Neither document provides any support for a contract involving Mr Voci personally.

355 The 29 October 2014 emails comprise the third category of documents relied on by Ms Troiano as constituting the MPD Agreement. Those emails concern a draft employment contract between PSCA and Ms Troiano. They similarly provide no support for a contract between Ms Troiano and Mr Voci personally.

356 Even if regard is had to the Initial Agreement, and it is not part of the MPD Agreement for which Ms Troiano contends, the Initial Agreement does not support a finding of an agreement between Ms Troiano and Mr Voci to undertake Major Projects together personally. None of the six matters concerning the Initial Agreement noted at paragraph 201 above are consistent with an agreement between Ms Troiano and Mr Voci personally.

357 In final address, counsel for Ms Troiano accepted that the reference in the Initial Agreement to a 'dynamic company' to be built is a reference to PSCA.[109] When the Initial Agreement referred to being a 'serious player in the market', the reference is to a serious player in the market in which PSCA operates, being the market of providing project management services, and not in the property development market, the market in which Ms Troiano contends Ms Troiano and Mr Voci agreed to be joint venture participants. References to 'I put this proposal', 'I believe' and the like, a proposal put by the sole director of PSCA for employment by PSCA, do not convert the nature of the communication to one by Mr Voci on his own behalf personally from a proposal by him on behalf of PSCA.

358 To the extent Ms Troiano relied on discussions in August 2014 of doing joint ventures together, such discussions are not part of the pleaded MPD Agreement. More importantly, I have not accepted that as a matter of fact they took place.

359 The subject matter of the 14 November 2014 agreement is an employment contract. The earlier communications relied on by Ms Troiano involve drafts/negotiations leading to that outcome. Those communications are not directed to and do not concern a joint venture proposed to be conducted by, and agreed upon, by two individuals in their personal capacity.

360 Although the identification and construction of an agreement between parties and of their common intention depends in every case on the particular facts and circumstances, the element of Ms Troiano's case that involves her being entitled to 25% of equity and profit, but bearing no personal liability exposure or risk, runs contrary to most joint venture projects. It is both an element of Ms Troiano's case that is not referred to in any of the documents relied on to constitute the MPD Agreement and one for which, in light of my factual findings concerning discussions between Ms Troiano and Mr Voci, there is no evidence in their conversations between August 2014 and 14 November 2014.

361 At various times in support of her personal joint venture case Ms Troiano sought to rely on events that took place after 14 November 2014. First, the fact that it was Mr Voci who was the sole shareholder in the Voci companies who contracted to purchase parcels in Bindts Road. Second, the fact of her later involvement when at PSCA in the Bindts Road and Donnybrook projects. Such later conduct does not assist a case that requires the Court to be persuaded that in November 2014 it was objectively the case that Ms Troiano and Mr Voci intended to be joint venture partners personally in property development. Even if such latter matters were relevant, the facts surrounding the incorporation of purchaser companies with Mr Voci as the sole shareholder and director do not support Ms Troiano's personal joint venture claim. The fact Ms Troiano worked on Bindts Road and Donnybrook is consistent with her employment by PSCA, her duties as an employee, and the final sentence of the Remuneration Section.

362 There was no agreement between Ms Troiano and Mr Voci personally. None of the documents relied on refer to or expressly contemplate Mr Voci as a party personally, whether in substitution for PSCA or in addition to it. I find that to be the case irrespective of whether the MPD Agreement or the True Agreement, being the 14 November 2014 agreement, constitutes the relevant agreement between the parties.

363 The 14 November 2014 agreement is the only agreement signed by the parties. It is clear from the 29 October 2014 and 6 November 2014 communications relied upon as part of the MPD Agreement, that they were part of a drafting and negotiation process. That process culminated in the 14 November 2014 signed agreement. It supersedes earlier drafts and communications concerning those drafts.

364 I find the agreement between PSCA and Ms Troiano is solely constituted by the 14 November 2014 agreement.

365 Most of the terms of the 14 November 2014 agreement are not controversial. They are found within the written agreement itself. A number of those terms are identified in paragraph 11(a) - (c) of the TFASC and paragraph 10B of the Defence.

366 Paragraph 11(d) - (e) of the TFASC alleged terms to the effect that Ms Troiano would immediately have a 25% equity and profit share entitlement in any underlying particularly large Major Project such as Bindts Road, if such a project eventuated, and that PSCA and/or Mr Voci would do all things necessary to recognise and give effect to her equity and profit share entitlement in such a project. Those terms were alleged to be express as a matter of construction of the final sentence of the Remuneration Section and to be implied.

367 The 14 November 2014 agreement specified Ms Troiano's remuneration to be $75,000 p.a. plus superannuation until 15 January 2015, $110,000 p.a. plus superannuation from that date and, upon a third project being secured, $140,000 p.a. plus superannuation. That remuneration is specified in items 1 - 3 of Remuneration Section.

368 In addition, the first sentence under the Remuneration Section stated that after 12 months from the commencement date (15 November 2015), PSCA agreed to provide Ms Troiano with 10% equity and 10% profit share from PSCA Major Projects; and after a further 12 months (15 November 2016) an additional 15%, to a total of 25% equity and profit of the division. The entitlement to the initial 10% equity and profit share is thus a deferred entitlement, to commence on the day following the one year anniversary of Ms Troiano's employment.

369 The final sentence of the Remuneration Section is concerned with an additional remuneration entitlement - an 'exception to this timeline', an entitlement to 25% equity and 25% profit share 'from the outset', without the 12 months' qualifying period, 'when a particularly large "Major project" eventuates (such as Bindts Road)'.

370 The defendants complained generally about the uncertainty of these two sentences. They submitted that it is not possible to have an equity and profit share in an unincorporated part of a company. They submitted that the final sentence contemplates the establishment of a single new company and that a new company needs to be established because it is not possible to sensibly have an equity entitlement in something which is not a separate legal entity. Ms Troiano does not agree that is the case.

371 Concerning uncertainty, as to the first sentence, there is nothing uncertain about a separate division or a department of PSCA for which accounts can be prepared, profit calculated and, after 12 months' of operation, the equity and profit of that division or department identified. This is not a case as discussed in Thorby v Goldberg[110] where the language used is obscure and incapable of precise or definite meaning. To approach the construction of the first sentence as discussed is to recognise that construction of commercial contracts should be approached on the basis that the parties intended to produce a commercial result, one that makes commercial sense.[111] The incorporation of a company is not relevant to the remuneration obligations imposed upon PSCA by the first sentence. It is not necessary that there be a separate company in order to determine an entitlement to equity and profit share 'from PSCA Major Projects ... of the division'. It will often be the case that a larger business will sell off one of its divisions, for that purpose preparing financial accounts of that division where previously there were none. There is no need to incorporate a company and have it operate the division for the first sentence to be sufficiently certain as to be enforceable.

372 In cross-examination Mr Voci sought to draw a distinction between a 'department' which he acknowledged the MPD was - a part of the PSCA business - and a 'division', attempting to lay the groundwork for a factual finding that even if there was a profit entitlement as a matter of contract, as events later transpired, because no 'division' was established, there was no entitlement. Mr Voci later referred in his evidence to division and department interchangeably. Although the evidence given by Mr Voci about events that happened later is not relevant to the construction of the agreement, the distinction that Mr Voci sought to draw between a division and a department is a distinction without a difference.

373 Given the significance attached to the final sentence of the Remuneration Section, it is appropriate to separately consider the two construction issues. First: was there a separate joint venture agreement between Ms Troiano and Mr Voci constituted by the final sentence? Second: what is the significance of the reference to 'establish a new company'?

Is the final sentence of the Remuneration Section a separate joint venture agreement?

374 Ms Troiano contends that the last sentence of the Remuneration Section constitutes or evidences an agreement with Mr Voci personally to undertake joint venture property development. She submits such an agreement was to 'govern projects such as Bindts Road, Epping, that Mr Voci and Ms Troiano undertook together'.[112]

375 I do not accept that as a matter of construction there was such an agreement. There is no support for the finding of a personal joint venture in the text of the final sentence itself, in the context in which the sentence appears, or having regard to the purpose of the 14 November 2014 agreement, an employment contract.

376 The submission for Ms Troiano rests on the premise that the sentence beginning 'The exception to this timeline', constitutes a standalone contract. The text of the sentence is to the contrary. The reference to 'the exception' and to 'this timeline' is a reference back to the timeline in the previous paragraph concerning 10% and then a further 15% equity and profit share 'of the division', a division of PSCA, not a division of Mr Voci. The final words in the sentence, 'without the qualifying period', are a reference back to the 12 and 24 month qualifying periods in the first sentence concerning what PSCA 'will provide'. The reference to 'we' shall 'bypass ... and ... establish' is a reference to PSCA and Ms Troiano. There is no reference to Mr Voci in the contract. Nothing in the text relied on ties the establishment of a new company to Mr Voci personally.

377 I agree with Ms Troiano's submission that the last two sentences under the Remuneration Section deal with different subjects. However, I do not agree with the identification of those subjects for which she contends, in particular, that the final sentence is concerned with joint venture property development.

378 The distinction in subject matter in the two sentences is not one based on the identity of the client. It is one based on the size of the project. So far as subject matter is concerned, the first sentence deals with Ms Troiano's entitlement to an equity and profit share of PSCA Major Projects - all such projects - not as Ms Troiano contended in favour of her personal joint venture construction of the final sentence, only projects PSCA is to manage for third parties. There is nothing in the first sentence that refers to 'third parties'. It is all Major Projects, including Major Projects in which Mr Voci or companies associated with him are the developers, if PSCA should provide services to such projects.

379 While the first sentence deals with all PSCA Major Projects, the second sentence, the exception, deals with particularly large 'Major Projects', such as Bindts Road.

380 Bindts Road was known as at 14 November 2014. The size of that project, up to 1000 residential lots, was completely outside the realm of other projects in which PSCA had previously been, or was at that time, involved. By way of example, Burwood Highway was a 'Major Project' with 16 units. It was a known project of PSCA Major Projects as at November 2014. Bindts Road was in an entirely different category; not only because of its size; but also due to the nature of the project. It was to be a broad-acre residential subdivisional development of significant scale in a newly developing area on the outskirts of metropolitan Melbourne within the Urban Growth Boundary. It is with the provision of services to such 'particularly large Major Projects' that the final sentence is concerned. It is not concerned with the underlying property development project.

381 The reference to establishing a new company in the final sentence indicates that the provision of services for particularly large Major Projects was to be kept separate from PSCA's other business. The new company was an intended mechanism to achieve that outcome and to facilitate delivery of 25% equity and profit share. However, the reference to a new company does not assist to link the new company as one in which Ms Troiano and Mr Voci would be shareholders. The reference to 'we', bypassing the timeline to establish the new company, is consistent with PSCA and Ms Troiano - the parties to the 14 November 2014 agreement - bypassing the timeline to do so. It does not support a construction that a third party to the agreement, Mr Voci, and Ms Troiano, would personally bypass the timeline or that those persons would establish the new company.

382 The defendants submitted the Schedule to the 14 November 2014 agreement must be read as part of the contract as a whole and construed in a coherent fashion. They submitted that contrary to the construction for which Ms Troiano contended, it cannot be said from the Schedule that there are two separate agreements, an employment agreement and a joint venture agreement. Such a construction is not consistent with a coherent construction of the Schedule as part of the one document.

383 I agree that when the final sentence is read in the context of the 14 November 2014 agreement as a whole, the context, an employment agreement between PSCA and Ms Troiano, provides no support for the construction for which Ms Troiano contends. Nor does the purpose of the agreement lend support for Ms Troiano's construction. It is no part of the 14 November 2014 agreement to deal with joint venture property development. The purpose of the employment agreement is, as its title suggests, employment, and that is the case for the agreement in its entirety. I reject the submission that the final sentence of the Remuneration Section constitutes a 'joint venture agreement between Ms Troiano and Mr Voci personally'.

384 As neither the text, context nor purpose of the final sentence of the Remuneration Section support the construction for which Ms Troiano contends, it cannot be said that the final sentence constitutes a separate agreement between Ms Troiano and Mr Voci to personally undertake joint venture projects. There was no such agreement.

385 On the construction for which the defendants contend, the incorporation of a company is a precondition to any entitlement on the part of Ms Troiano to equity or profit share under either the first or final sentence under the Remuneration Section. The defendants further contended that the new company would only be established subject to certain conditions being met and further terms being agreed, and both PSCA and Ms Troiano taking steps to establish it. They submitted there was no more than an incomplete agreement to agree as no terms were set out concerning the establishment and operation of the new company. They submitted that at its highest, Ms Troiano was entitled to a 25% profit share/equity in a never incorporated entity intended after its incorporation to conduct PSCA Major Projects.

386 As to the first sentence under the Remuneration Section, I do not agree that the incorporation of a company is a precondition to the equity and profit entitlement of Ms Troiano specified in that sentence. The reference to equity in that sentence is a reference to an equity interest in the 'division', just as the reference to profit is a reference to profit of that division. References in the first sentence to 'the division' are to be distinguished from references in the second sentence to a new company to be established in respect of a 'particularly large Major Project', should one eventuate. There is no mention of a company in the first sentence. Ms Troiano was entitled, in accordance with the first sentence, to a percentage share of the profit and the equity of the MPD, conditional on 12 months' service; but not in any way conditional on the incorporation of a company.

387 The position is more complex so far as the final sentence of the Remuneration Section and the incorporation of a new company is concerned. However I do not agree with the defendants that the incorporation of a new company is a precondition to Ms Troiano's entitlement to be paid 25% of profit or to be entitled to 25% equity. Nor do I agree that there was no more than an incomplete agreement to agree concerning the establishment and operation of the new company.

388 There is certainty about the incorporation of a new company, the timing of when that is to occur, 'immediately', and as to the shareholding, 25% to Ms Troiano. The defendants drew attention to the lack of reference in the 14 November 2014 agreement to the question of who would fund the operations of the company and in what percentage, noting that Ms Troiano's case is that she had no obligation to contribute financially but noting also that the Schedule is silent about that topic. The defendants noted that the agreement does not specify who are to be the directors of the new company, what if any shareholders' agreement is to be entered into and on what basis and at what cost was the new company to have access to or use PSCA's clients, premises, resources and staff.

389 Dealing with the defendants' incompleteness contentions, there is nothing in the 14 November 2014 agreement itself that expressly deals with matters they have identified such as who should be the directors and who should contribute capital to the new company. However, the construction of a contract is not to be approached in a vacuum, devoid from its context and purpose, noting that 'no narrow or pedantic approach is warranted, particularly in the case of commercial arrangements'.[113]

390 The reference to 'immediately establish a new company of which a total of 25% equity and 25% profit share ... applies from the outset' has its origins in the 6 November 2014 draft, prepared by Mr Voci, as amended by hand by Ms Troiano. Her proposal was that 25% was to apply in her favour 'on particularly large projects' 'upon completion of those projects'. Bindts Road was then identified as such a project and expressly mentioned in the third draft contract. The proposed mechanism for delivery of that 25% interest, equity and profit, via a new company, was suggested by Ms Troiano in her separate handwritten note. It was Ms Troiano who also proposed that instead of the entitlement to equity and profit being deferred until completion of the project, as she had originally proposed, that the entitlement would be immediate; a proposition with which Mr Voci later agreed.

391 There is no evidence that prior to 14 November 2014, Mr Voci and Ms Troiano discussed and agreed about who should be the directors of the business, the funding of the business to be conducted by the new company or about matters such as staffing and resourcing. However, I do not consider the absence of discussion of those matters to mean the agreement is either incomplete or void for uncertainty.

392 The agreement to incorporate the new company was one arrived at as part of the agreement pursuant to which Ms Troiano is to be an employee of PSCA. Consistent with the employer/employee nature of the relationship, PSCA is the provider of capital and staffing and other resources to be used in its business in which Ms Troiano is the Senior Development Manager. The same must objectively be said and to be implied so as to apply in respect of work relating to a particularly large Major Project. It can be discerned objectively from the nature of the 14 November 2014 agreement, one for her employment, that it is not intended that Ms Troiano contribute capital.

393 The parties did not discuss or agree the identity of directors of the company to be incorporated. It was known by both parties that Mr Voci was the director of PSCA. It did not appear from Ms Troiano's profile that she was, or in the past had been a director of any companies. Those facts combined with the employer/employee relationship support the proposition that objectively it could be expected the director of the company to be incorporated would be Mr Voci.

394 The obligation to establish the new company to which the final sentence of the Remuneration Section refers is an obligation that impliedly resides with PSCA. The obligation rests with PSCA because it is PSCA that has the responsibility for delivering the remuneration to which Ms Troiano is entitled, including remuneration in the form of equity and profit share. If a new company is not incorporated by PSCA on whom the responsibility to do so rests, that does not absolve PSCA from its obligation to pay the agreed remuneration, 25% of profit and 25% equity.

395 Control of the company is to reside with PSCA. The activities of that new company are to be the same as the activities of PSCA itself, but given the size of a particularly large project such as Bindts Road, as was Ms Troiano's suggestion, it was agreed that a separate company was to be established by PSCA as a mechanism for the provision of such services in respect of the particularly large new project.

396 The implication of these matters concerning the new company is not inconsistent with the 14 November 2014 agreement. It is reasonable and equitable to imply these obligations so as to give business efficacy to the agreement to establish a new company. To approach the issues identified by the defendants as gaps in this way is not to do anything that is incapable of clear expression, and that each of those gaps needs to be addressed so as to give business efficacy is so obvious they go without saying.

397 Objectively the intention of the second sentence of the Remuneration Section is that Ms Troiano will, from incorporation, be a 25% shareholder in the new company and be entitled to 25% of its profits. There will be no qualifying period for her entitlement should a project fitting the relevant description eventuate. The second sentence is an 'exception' to the timeline in the first sentence with a 12 month qualifying period for the 10% equity and profit share entitlement. It is irrelevant to the construction of the agreement that no company was ever incorporated by PSCA who had the obligation to arrange for its incorporation, and nor is it relevant to construction questions that there is no evidence that Ms Troiano later requested or took steps to establish a new company.

398 There is no issue of incompleteness or uncertainty concerning the final sentence of the Remuneration Section. The incorporation of a new company is not a precondition to Ms Troiano's entitlement to remuneration and PSCA's obligation to pay that remuneration.

399 The defendants submitted that what constitutes a 'Major Project' is not sufficiently defined in the agreement, that Bindts Road is the only reference point, and that there is no contractual guide as to what constitutes a 'Major Project'. They contend that this provides another reason why the 14 November 2014 agreement is void for uncertainty.

400 Cross-examined about the absence of the definition of what constitutes a 'Major Project', Ms Troiano said that anything that related to third party client work done through her division was a 'Major Project'.[114] That is, irrespective of the size of such projects. It was her evidence that she had a discussion with Mr Voci to the effect that anything she did was a 'Major Project'. I do not accept the truth of Ms Troiano's evidence that she had a discussion with Mr Voci in which they discussed the meaning of 'Major Projects'. What is meant by 'Major Projects' in the 14 November agreement falls to be determined from the agreement itself, its text, context and purpose, and not by reference to Ms Troiano's view of what constitutes a 'Major Project'.

401 What constitutes a Major Project as discussed in the first sentence under the Remuneration Section is defined by reference to the activities of the Major Projects Division and not by the size or nature of the particular project. As Senior Development Manager of that division, Ms Troiano's remuneration entitlements include, after 12 months, 10% equity and 10% profit share derived by PSCA from the business activity of that division. If activity concerning a particular project, whether it be relating to a two lot subdivision or a 20 lot subdivision, is undertaken by that division (as it turned out Ms Troiano alone was that 'division'), that business activity, together with other business activities of the PSCA MPD comprise the business enterprise to which the 10% equity and profit share obligation undertaken by PSCA as part of Ms Troiano's employment terms and conditions attaches.

402 The Schedule to the 14 November 2014 agreement refers to Bindts Road as an example of a 'particularly large Major Project'. Apart from the express reference in the Schedule itself, it is common ground between the parties that Bindts Road meets that description. What is meant by a 'particularly large Major Project' can be determined by looking at the size and nature of 'Major Projects' previously undertaken by PSCA. By way of example, Donnybrook, which is over 400 lots, was more than ten times the size of any previous project in which Ms Troiano and PSCA were later involved. It is the contrast in size and complexity compared to other PSCA Major Projects that gives a project its 'particularly large' character. In closing submissions Ms Troiano submitted the meaning of a 'particularly large Major Project' was to be informed by the example given, Bindts Road, and that it means a project like Bindts Road, namely, a development site that will be able to be subdivided into hundreds of residential lots. I agree.

403 To give commercial meaning and efficacy to the agreement between the parties it is sufficient to find that a project that is very substantially larger than anything previously undertaken by PSCA meets the description of a 'particularly large Major Project'. Given the factual circumstances that later applied, other than to find that both Bindts Road and Donnybrook fit the description, it is unnecessary to be more prescriptive as to what constitutes a 'particularly large Major Project'.

404 The defendants submitted the Schedule does not explain what is required for a project to 'eventuate'. Ms Troiano submitted that a project 'eventuates' if it is secured by Mr Voci and by her in the sense that a binding agreement is entered into to acquire the development site. I do not agree that this is a correct description of the meaning of the word 'eventuates' where it is used in the 14 November 2014 agreement. The submission begins from the premise of a joint venture personally between Ms Troiano and Mr Voci. I have found there was no agreement to personally undertake a joint venture.

405 In closing submissions the defendants referred to the definition of 'eventuate' in the Australian Oxford Dictionary 5th edition:

1. turnout in a specified way as the result. 2 (often. foll by in) result.

406 In the Macquarie Dictionary,[115] 'eventuate' is defined as:

407 Using Bindts Road as an example, the defendants submitted it did not 'eventuate' because an external head locator investor was never successfully obtained for the project. In the case of Bindts Road, PSCA and Mr Voci were unable to complete the project, and Mr Voci was required to dispose of it to Dahua and all funds from unit investors were required to be repaid, as well as funds obtained from lot pre-sales.

408 The construction contended for by the defendants proceeds on the basis that services provided by PSCA MPD to Mr Voci and companies associated with him fall outside the scope of the 14 November 2014 agreement. For the reasons earlier discussed, I do not agree. I consider the agreement covers all work performed by the MPD, including for Mr Voci and companies associated with him.

409 I find that a project 'eventuates', as referred to in the Remuneration Section, it 'comes about', referring to the dictionary definition above, when PSCA or the new company providing the same services as PSCA commences to provide those services in respect of a particularly large Major Project. Given that the usual components of the SOW model, known to the parties to the agreement, includes securing planning permission for property development as a first step in the provision of services, a project can be said to 'eventuate' when PSCA is engaged to or commences work in relation to planning and development permission for such a project. In the case of land already zoned the initial step would generally be the preparation of an application for a planning permit. In the case of broad-acre subdivisional land such as Bindts Road, the first step, if Bindts Road 'eventuated', would be, and it was, to seek to secure the approval of the PSP as a precursor to subdivision. As soon as PSCA or a new company incorporated for that purpose commenced work to secure approval of a PSP, in the relevant sense that 'particularly large Major Project', whether it be Bindts Road or Donnybrook, will have 'eventuated'. That is the case irrespective of whether the work performed is undertaken pursuant to a formal SOW agreement or whether it is undertaken on an informal basis by PSCA Major Projects. The 'particularly large Major Project' eventuates when PSCA begins to be engaged in securing the approval of the PSP for the land in question, as was the case concerning Bindts Road and Donnybrook.

Are there implied terms as alleged in the Defence?

410 The defendants plead an implied term that any rights which Ms Troiano may have in respect of profit share or equity in the MPD was subject to her continuing employment with PSCA. They submit implication of such a term is essential for business efficacy. They submit if there were no such implied term then, theoretically, as soon as the targets were reached, Ms Troiano could exercise the 14 day resignation right under clause 16 of the 14 November 2014 agreement and thereafter enjoy in perpetuity a 25% profit and equity share without any ongoing obligation to contribute her labour as manager.

411 Ms Troiano contests the implication of such a term. She submits that to imply such a term would not be reasonable or equitable because it would enable her to be deprived of accrued contractual rights if she were to give grounds, even in the most minor way, for termination of her employment under clause 16(a) or (b) of the 14 November 2014 agreement.

412 The implied term contended for by the defendants sits comfortably with the context of the Remuneration Section. The entitlement to equity and profit share is part of Ms Troiano's remuneration package as a Senior Development Manager. It comprises part of the reward for effort. In the case of the first sentence, the entitlement does not accrue until 12 months from the commencement of employment. At that point in time, it is 10%; on the 24 month anniversary increasing to 25%. The exception to the timeline in the last sentence of the Remuneration Section, 25% equity and profit share, 'when a particularly large Major Project eventuates', applying 'from the outset without a qualifying period' is an entitlement to remuneration tied to the provision of services by Ms Troiano pursuant to the employment agreement. For so long as she remains employed, and any 'particularly large Major Project eventuates', her remuneration includes 25% equity and profit share concerning that project.

413 To approach the contended for implied term in this way is to do no more than give effect to the language adopted by the parties in the 14 November 2014 agreement in a manner that gives commercial efficacy to their agreement. The nature of the agreement is an employment contract. The rights to terminate employment for breach are expressly dealt with in clause 16 of the agreement. If, prior to termination, 'a particularly large Major Project' has eventuated, then Ms Troiano's remuneration relating to that project will comprise 25% of profit relating to that project and, at termination 25% of the equity relating to that project assessed at that time.

414 The Defence also alleged implied terms that Ms Troiano owed a duty of fidelity as an employee to PSCA as her employer and a duty not to use information for purposes other than PSCA's business or to misuse confidential information of PSCA gained by her in the course of her employment.

415 There was no real argument that a duty of fidelity should be implied; to imply such a term is not an unusual incident of a contract of employment. The position is different concerning confidentiality. There is no need to imply the confidentiality terms alleged given that clauses 14 and 17 of the 14 November 2014 agreement contain comprehensive provisions dealing with confidentiality and the return of all data on termination. To imply confidentiality terms in those circumstances would be contrary to the principles in BP Refinery (Westernport) v Hastings.[116]

416 There is no dispute that from 16 November 2014, Ms Troiano was working full time with PSCA and Mr Voci. The PSCA wage records show her start date as an employee as 16 November 2014. Her starting salary was $100,000 plus superannuation. Ms Troiano received her first salary payment from PSCA on 18 December 2014. She received that salary as part of her agreed remuneration under the 14 November 2014 agreement.

417 The Defence alleges that in the period from 16 November 2014 to 9 September 2015 Ms Troiano's performance in her role was such that by September 2015 it was open to PSCA to dismiss her. Amongst the particularised complaints are that Ms Troiano had not demonstrated the level of skills or experience claimed in her profile, that she was incapable of providing accurate project costings, unable to develop satisfactory feasibilities, had poor organisational skills, failed to manage projects resulting in disputes, and required further training and experience before she could perform even basic duties associated with her role. Bearing those allegations in mind, it is necessary to refer in chronological context to some, but by no means all, of the events that happened during this period that were canvassed during the trial.

418 On 12 December 2014, the SOW agreement with PSCA for 278 Burwood Highway, Burwood, providing for 12 apartments and associated shops was signed, providing for stage one fees of $165,150. Earlier, on 21 August 2014, a SOW agreement for the same property had been signed for a total fee of $64,150. This agreement was overtaken by the later agreement; so much seemed to be accepted by Mr Voci when cross-examined about the later SOW agreement. However, even if that had not been the case, I do not accept the validity of Mr Voci's closing submissions that because the Burwood SOW was signed before the 14 November 2014 agreement, it is not a 'Major Project' within the scope of that agreement. There is no dispute that Ms Troiano worked on this project before and after 14 November 2014.

419 On 24 December 2014, Mr Voci contracted to buy 12 Craig Street, Keilor East. The contract of sale was signed by 'Ross Voci and/or nominee'. In February 2015, Mr Voci nominated Mr Wang, a PSCA client, to become purchaser of the property. The SOW agreement for this property was signed on 10 February 2015 by Mr Wang. The SOW provided for 20 blocks and total fees of $381,100. After the SOW agreement for 12 Craig Street was signed, Ms Troiano continued to work on that project.

420 By February 2015 PSCA was entering into standard form SOW agreements with its clients titled 'Locator, Subdivision & Town Planning Permit Agreement, Scope of Works (SOW)'.

421 On 10 February 2015, the SOW agreement with PSCA for 15 Yarra Street, Richmond, which provided for three lots and three dwellings with SOW fees of $193,294, was signed. The client was Dual Occ, Mr Voci's company. Ms Troiano performed work on this project which was one of Mr Voci's own company's developments. I reject the defendants' submission that this project, due to its size, or because the developer was one of Mr Voci's companies, was not a 'Major Project'. The PSCA services provided in respect of it were provided by Ms Troiano. Her work on 15 Yarra Street fell within the scope of the 14 November 2014 agreement.

422 In February 2015, according to PSCA wage records, Ms Troiano's annual salary increased to $110,000 plus superannuation.

423 On 25 February 2015, the SOW agreement with PSCA for 59-63 Bailey Street, Belmont, which provided for approximately 25 blocks and SOW fees of $379,600, was signed. After the SOW agreement for the site was signed, Ms Troiano worked on this project.

424 Mr Voci agreed that by 25 February 2015, Ms Troiano was working on projects at Burwood Highway, Burwood with an SOW signed on 12 December 2014, 12 Craig Street, Keilor with an SOW signed on 10 February 2015, and Bailey Street, Belmont with an SOW signed on 25 February 2015.

425 I find as a fact that by 25 February 2015 four Major Projects, Burwood Highway, Burwood, 12 Craig Street, Keilor East, Bailey Street, Belmont, and 15 Yarra Street, Richmond, had been 'secured' in accordance with the Remuneration Section.

426 Ms Troiano was asked why in those circumstances she did not, in February 2015, ask for a company to be incorporated and 25% equity to be issued in her name. She said that the incorporation of the company was not contemplated for the purpose of the PSCA Major Project client work; it only pertained to the joint ventures that she and Mr Voci undertook together on Bindts Road and Donnybrook. Her answer was partly correct. The reference to a company was not a matter relevant for Ms Troiano to pursue in relation to Major Projects other than Bindts Road and Donnybrook. It was not a topic relevant for her to follow up at that time. Neither Bindts Road nor Donnybrook had by that time been 'secured'. When they 'eventuated', it was for PSCA to arrange for a company to be incorporated.

427 In March 2015, Ms Troiano's annual salary increased to $140,000 plus superannuation.

428 On 16 March 2015, a list of completed and proposed PSCA projects was prepared. This document was referred to in opening on behalf of Ms Troiano. Most of the projects listed were between one and five new houses. There was one project with eight houses and another with nine. The list was relied on by Ms Troiano to show, by way of contrast, that of the eight other Major Projects the subject of her claim, five were between 16 and 22 lots, three were less than 16 lots but all were said to be substantially larger than the projects previously either undertaken by PSCA or managed by it, and referred to in the 16 March 2015 list.

429 Ms Troiano was cross-examined about a number of projects on the 16 March 2015 list, including those projects that were more than two-lot 'backyard' subdivisions. She responded by saying that not only did she change PSCA from focusing on two lot backyard subdivisions into a much bigger player, she took it 'to the stratosphere'.[117] It was put to Ms Troiano that she had deliberately understated the earlier work of PSCA so as to embellish her case. Whether or not Ms Troiano understated PSCA's work before she joined, describing what she did as taking PSCA 'to the stratosphere' was not an accurate statement of the work she did or of the role that she performed. However, given my construction of the 14 November 2014 agreement, both the cross-examination about the list and her overstatement are of no particular import.

430 On 9 April 2015, the SOW agreement with PSCA for 8 Hunter Street, Richmond, which provided for four lots and four dwellings and SOW fees of $97,244, was signed. After the SOW agreement for that site was signed, Ms Troiano worked on that project.

431 An email exchange between Mr Voci and Ms Troiano on 1 April 2015 concerning 8 Hunter Street Richmond is indicative of the ebullient nature of communications between them at the time. Mr Voci wrote:

I just got lisa a site identical to Yarra Street, and is better then [sic] Yarra Street more profit !!!, we will have this one on the books in 12 months no permits. I was hoping she was not going to get the loan, but hay [sic] you can't do them all. And I'm bedridden, that's the way to do it!!! Pump up doze [sic] we are going to the moon!!

432 On 21 May 2015 Ms Troiano sent an email to Mr Ladson of JCA concerning 105 Harvest Home Road, Epping. The land was described as 5 acres with 3.2 acres of developable area and was purchased with a permit for a 12 lot subdivision. Mr Ladson was asked to provide a rundown on any major issues that would be faced with subdividing the land. The email was copied to Mr Voci and Mr Rapita. Later, in contemporaneous communications, and in the course of the trial, there was much criticism of Ms Troiano for her choice of consultants, including the choice of Mr Ladson. There were issues with Mr Ladson's work, but I do not consider the criticism of Ms Troiano for her choice of Mr Ladson justified.

433 On 28 May 2015, the SOW agreement with PSCA for 4 Gardner Street, Richmond, which provided for two lots and two dwellings and SOW fees of $103,344, was signed by Mr Pezzi. Although in closing submissions the defendants did not accept this to be a Major Project on account of its size, I do not agree. Ms Troiano worked on this project. It falls within my construction of the 14 November 2014 agreement.

434 On 5 June 2015, the SOW agreement with PSCA for 105 Harvest Home Road, Epping, which provided for 12 lots and SOW fees of $171,650 in which Ms Edhie-Wahidin was an investor, together with her siblings, was signed. After the SOW for Harvest Home Road was signed, Ms Troiano continued to work on that project.

435 On 10 June 2015, an email exchange referred to in the defendants' written opening submissions took place concerning 105 Harvest Home Road. In his 10 June 2015 email, Mr Voci described Ms Troiano's handling of costs on that project as a 'very serious' issue. Much time was spent at trial on the question of the Harvest Home Road development cost estimates. The defendants sought to rely on what occurred here as demonstrating a lack of competence on the part of Ms Troiano and consultants engaged by her. I do not agree.

436 As the contemporaneous documents show, the problem here was not one of Ms Troiano's making. The problem arose because PSCA had signed the client to an SOW on 7 June 2015, at a time before expert advice had been received about the cost of the civil works. The JCA cost estimates were provided on 10 June 2015 after a meeting attended by Mr Voci, Ms Troiano and others. It was the provision of those cost estimates that prompted Mr Voci's criticism, but that criticism was not warranted. On 11 June 2015, Ms Troiano responded to Mr Voci saying that she had not previously been provided with a feasibility and that the sales were made while she was in the process of obtaining costings for the project. Her response was an accurate portrayal of what occurred. The attempt to discredit Ms Troiano's work relating to 105 Harvest Home Road backfired. I do not accept the accuracy of Mr Voci's evidence concerning this project and cost feasibility issues.

437 Ms Troiano submitted that by 14 June 2015, she was managing several Major Projects that brought in significant revenue for PSCA. On 14 June 2015, Mr Voci sent an email in which he said he was impressed with the efforts 'of all the team' concerning Harvest Home Road. Ms Troiano responded thanking him 'wholeheartedly for [his] efforts, encouragement, constructive criticisms and guidance'. She said she was very grateful for his patience 'with us all':

I have so much respect for you, your opinion and perspectives. You are an amazing person, friend, employer and role model. I continue to appreciate the opportunity to be part of the PSCA family.

Mr Voci responded saying that he 'appreciate[s] all the work you do for PSCA and for me, let's make it big and set the Famzly [sic] up for generations'.

438 This email exchange was highlighted by Ms Troiano and sought to be relied on in support of her joint venture claim, in particular, the reference to the work that Ms Troiano does for 'PSCA and for me' (emphasis added by Ms Troiano). It was submitted that what was being talked about at that time was Ms Troiano creating wealth for herself and her family and that there is no departure from the language used by Mr Voci in the Initial Agreement. Cross-examined about the email, Mr Voci agreed that at the time each had confidence in the other, and each trusted the other in their work relationship. He said he understood that the views expressed by Ms Troiano reflected how she thought of him at the time, and that he held reciprocal views. The same email exchange was relied on by Ms Troiano as providing support for the claim that Mr Voci owed fiduciary duties to Ms Troiano.

439 I do not consider the email exchange supports Ms Troiano's joint venture claim or that it has the significance for which Ms Troiano contends. Ms Troiano referred to Mr Voci as her employer and role model, not as her joint venture partner. A number of communications between Mr Troiano and Mr Voci at around this time, and earlier, featured extravagant language and hyperbole. Looking at the email exchange in light of the 14 November 2014 agreement, if PSCA Major Projects performed well, Mr Voci as the business owner would do well and Ms Troiano would benefit substantially from her 25% equity and profit share. That provides the context for setting up the families for generations. It is a repeat of the type of language used by Mr Voci in the Initial Agreement which was all about PSCA employing Ms Troiano.

440 Cross-examined about Ms Troiano's workload, Mr Basile agreed that as at 8 July 2015, she had 'a lot on her plate'.[118] He said it was his perception at the time that Ms Troiano was taking on too much work and that it was 'possible' that he suggested someone else share the load.[119] This evidence provides context for consideration of Ms Troiano's performance as particularised in the Defence. A person who is overworked might, as a consequence, be or appear to be disorganised. However, disorganisation in that context may not be due to incompetence or lack of skills, it may be due to the volume of work.

441 On 21 August 2015 Ms Troiano sent an email to Mr Voci telling him that she had registered for a 'Smartsheet' webinar. Earlier, in June 2015, Ms Sainato had sent an email to Ms Troiano and to Mr Voci saying that 'we need' to listen to such a webinar. This email exchange is relevant to an aspect of criticism of Ms Troiano's performance by Mr Voci on 9 September 2015.

442 On 26 August 2015 and later on 9 September 2015 there was an exchange of emails between Ms Troiano and Mr Voci concerning 8 Hunter Street, one of the 'Major Projects' about which Ms Troiano was cross-examined. There were particular issues concerning crossovers to provide access to the site impacting on street car parking. On 25 August, Ms Troiano sent the client a copy of a request for information ('RFI') from the Council. Her email advised the client that PSCA was addressing the issues by completing a redesign. The client responded on 26 August 2015, 'OUCH!!!!!!!!! Can you give me a revised feasibility on how you think this is going to stack up'. Ms Troiano exchanged emails with Mr Voci about how she should deal with the Hunter Street client's concerns. That night Mr Voci sent an email saying 'I fully blame myself, that after one year you don't know what to do. So here is how I can help you. Do it your self [sic]'. Ms Troiano replied that she had just sent an email to the client 'not a moment before you sent me this email'. That statement was untrue. She had not yet sent an email to the client. She did not do so until after Mr Voci had told her to 'do it yourself'. It was put to Ms Troiano that it was important to be honest and faithful to her employer. She said she was being honest and faithful to her client. I do not agree. It was put to Ms Troiano that her email was an outright lie. She disagreed, but that is the fact.

443 There was cross-examination and criticism of Ms Troiano in relation to her use of consultants in around August 2015 in relation to lot yield concerning both 80 Harvest Home Road and Donnybrook. Ms Troiano referred those issues to Mr Ladson rather than seeking to work out the lot yield herself. I do not accept the validity of the criticism of Ms Troiano for engaging expert consultants to carry out that work.

444 On 2 September 2015, Ms Troiano sent an email to Mr Liddiard, a consultant, copied to Mr Voci, conveying her palpable concern at the fact Mr Liddiard had not earlier provided a 'FULL SET OF ALL REVISED CONCEPT DRAWINGS' on an earlier project and emphasising the need to attend to the preparation of a full set of revised plans for Bailey Street by the end of the following day.

445 There was much criticism of the performance of Mr Liddiard, who Ms Troiano engaged, and who she continued to use in relation to developments as at September 2015. It is clear that at around that time at least some of the criticisms of Mr Liddiard's performance were justified. The documents show that around that time Mr Liddiard was regularly very late with work, and on occasions there were errors in work produced by him; yet in cross-examination Ms Troiano largely refused to be critical of his performance. Confronted with emails detailing his poor performance, including her own emails, for example, one sent by her on 7 September 2015, with the word 'CRAIG' repeated 13 times in capitals, clearly out of exasperation with Mr Liddiard concerning his work on one of the properties on Craig Street, Ms Troiano defended him. In this and in some other aspects of her evidence, Ms Troiano was puzzling.

446 There was lengthy and detailed cross-examination about Ms Troiano's alleged shortcomings in the performance of her role, in particular, her 'outsourcing' of aspects of work relating to proposed development to 'her consultants'. I do not accept the validity of those criticisms. Ms Troiano was the 'Senior Development Manager', MPD. Her job was to 'manage'. The development projects in which she was involved were different in their complexity and in the challenges that they presented. To suggest, as was repeatedly put to her, that she should have undertaken various tasks personally for which consultants were engaged, fails to appreciate the critical role of specialist consultants in relation to the developments with which she was involved.

447 The TFASC alleges that between November 2014 and July 2016, pursuant to the MPD Agreement, Ms Troiano undertook work to secure Bindts Road for her and for Mr Voci to develop that land. Events relating to Bindts Road are also relevant to Ms Troiano's common intention allegation in support of her rectification claim.

448 Although Ms Troiano undertook substantial work relating to Bindts Road during that time, including up to September 2015 when the defendants allege the Variation Agreement was entered into, I do not accept that her work was either pursuant to the MPD Agreement or in order for her and Mr Voci personally to develop Bindts Road. The work in which she was engaged concerning Bindts Road was work contemplated by the final sentence of the Remuneration Section in the Schedule to the 14 November 2014 agreement. The events and matters relied on from November 2014 to September 2015 do not provide support for the personal joint venture common intention alleged.

449 On 17 November 2014 Ms Troiano sent an email to Whittlesea Council seeking planning information about 130-150 Bindts Road, Epping, which stated: 'we are looking to complete a residential land subdivision of the site'. The Council responded advising that 130-150 Bindts Road was within the Quarry Hills PSP area, that the PSP had been completed and was awaiting formal approval from the Minister for Planning.

450 On 24 November 2014 Ms Troiano sent an email to Mr Dutta, copied to Mr Voci concerning 130-150 Bindts Road - a 180 acre project. Sent from her PSCA email, Ms Troiano said: 'we need to work on this asap as the Vendor is waiting for us to purchase this property, but we need a good understanding of what we can achieve prior to meeting with him'.

451 In final submissions, the 24 November 2014 email, together with other similar emails were relied upon by Ms Troiano as confirmation of the common intention that she and Mr Voci would personally purchase Bindts Road for profit. While the email is not inconsistent with the proposition for which Ms Troiano contends, it is an internal PSCA communication. It does not make any specific reference to the identity of the proposed purchaser. The reference to 'we' in context, is a reference to PSCA of which Ms Troiano and the recipient of the email, Mr Dutta, were both employees. It does not assist to prove the common intention alleged.

452 Questioned about Ms Troiano's involvement in the PSP for Bindts Road, Mr Voci said, 'I think she did ... a fair bit of work. ... She did what was needed to do for her job'.[120] Mr Voci accepted that the statement in his original witness statement, to the effect that all Ms Troiano did in relation to the PSP process was putting the PSCA letterhead on PSCA's five page submission, understated the work she did relating to the PSP process.

453 Later on 24 November 2014, Mr Voci sent an email to Ms Troiano with some 'quick calculations' relating to 130-150 Bindts Road. Mr Voci's email included reference to 'we should start putting each model in a spread sheet that can be changed... as we need'; 'We then buy out the vendor at 15 mill... We use the rest of the funds 15 mill for a further cut up of land... Further land cut up by us'.

454 Ms Troiano relied on this email and submitted that the references to 'we' and 'us' provided confirmation of the asserted mutual intention for the joint purchase of Bindts Road. Cross-examined about the email and his response Mr Voci strongly denied that his response demonstrated that he was considering buying the Bindts Road property together with Ms Troiano. He said the reference to 'we' was a reference to some other client unidentified at that point, stating: '...that's how we speak. It's how we talk.'[121] I accept Mr Voci's evidence on that issue. His interpretation of the email is accurate.

455 On 11 December 2014, Ms Troiano took Mr Voci to meet David Freeman, the owner of land at 40-60 Bindts Road. Mr Freeman represented the owners of land between 40 and 100 Bindts Road.

456 On 11 February 2015 Mr Voci sent an email to Ms Troiano saying 'we need to get the epping land, iv [sic] got the funds ready to go for deposit and permits'. In closing submissions Ms Troiano relied on this email as one of a number of emails said to confirm an intention to purchase Bindts Road for profit to be shared personally by Ms Troiano and Mr Voci.

457 There was controversy about whether the email concerned Bindts Road or other land in Epping. It was put to Ms Troiano the email related to a property at Wedge Street, Epping, a project that Mr Voci was looking at buying. Initially, Ms Troiano said from her recollection the email was referring to Bindts Road. In further cross-examination Ms Troiano 'firmed up' her earlier answer. She refused to accept that the email was referring to Wedge Street. She argued with the cross examiner, saying she was 'very clear that it related to Bindts Road' as she remembered 'the circumstances around that time'.[122]

458 Ms Troiano's evidence when seeking to justify her position regarding this email was not truthful evidence. Her 'recollection' of events six years earlier is flawed. On 27 February 2015 PSCA prepared an information memorandum concerning the Wedge Street property. That document referred to a contract price of $1.3 million and that the deposit of $130,000 had been paid. I find that the 11 February 2015 email referred to Wedge Street. In view of that finding, the 11 February 2015 email provides no support for the common intention alleged.

459 On 20 February 2015, Mr Basile circulated to others at PSCA, including Mr Voci, but not Ms Troiano, a draft brochure for use in connection with the Shanghai trade fair to take place in March 2015, referring to the subdivision of 260 lots at Bindts Road, Epping. Ms Troiano said that she was upset and disappointed that Mr Basile was disseminating a document such as this in circumstances where the Bindts Road land had not been secured. I do not accept that evidence as truthful. It is contradicted by contemporaneous emails passing between Ms Troiano and Mr Voci on 21 and 22 February 2015. For example, in her email of 22 February 2015 to Mr Voci, Ms Troiano both thanked Mr Voci for 'keeping [her] in the loop' and described Mr Basile as the 'king of spin'.

460 Also in advance of the Shanghai trade fair, a PSCA publicity brochure was prepared. Parts of the document were written by Ms Troiano. It included a description of PSCA 'Major Projects Division' in similar terms to the September 2014 brochure. Ms Troiano agreed that description provided a comprehensive summary of what PSCA Major Projects both did and intended to do as at March 2015. A profile of PSCA's 'people' formed part of the brochure, including of Ms Troiano, who was described as Senior Development Manager, Major Projects Division. The brochure said nothing about PSCA as a developer. Although as a person having input to the contents of the brochure Ms Troiano was criticised for that omission, it is of no significance. As was the case with the September 2014 brochure, to refer to personal joint venture activity would be irrelevant to the target audience, Chinese investors attending a trade fair in Shanghai.

461 On 22 March 2015 there were email exchanges between Mr Voci and Ms Troiano and a web design contractor engaged by Ms Troiano to perform work in connection with the trade fair. Ms Troiano gave evidence to the effect that the developer did a good job with the webinar he was engaged to prepare. Her evidence was in contrast to her contemporaneous emails which referred to the web designer in most unflattering terms. In her emails sent at the time, Ms Troiano was 'deeply apologetic' to Mr Voci about the trouble and expense the web designer had caused. When she was cross-examined about inconsistencies between her evidence and the emails, Ms Troiano was argumentative in her responses. She constantly refused to directly answer yes or no when appropriate to do so.

462 Cross-examined about the same email exchange, Mr Voci's evidence was also most unsatisfactory. His witness statement referred to him being critical of and upset with Ms Troiano for what had occurred. As the full email chain put to him in cross-examination disclosed, he was upset by the web designer's work, not with Ms Troiano, who he told in response to her email was being too hard on herself. His attempt to justify the reference in his witness statement as a reference to his thoughts at the time, but not what he wrote, was not edifying.

463 From 25 March 2015 Mr Voci, Ms Troiano, and others working with or for PSCA at that time attended a three day trade fair in Shanghai. James Rapita, at that time an employee of Rendina Real Estate, joined them. Prior to the Shanghai trade fair there had been discussions between Ms Troiano and the owners of properties in Bindts Road, but no heads of agreement or contract of sale had been signed with any of them.

464 Whilst in Shanghai a dinner took place attended by Mr Voci, Ms Troiano, Mr Cardamone and Mr Rapita. During the dinner, those present discussed and agreed that Mr Rapita would approach the Cvetanovskis to see whether their land could be secured. If so, it was proposed to then attempt to deal separately with the other Bindts Road owners. While those facts were agreed, there was a contest between the parties concerning Ms Troiano's role.

465 In cross-examination, Ms Troiano accepted that up to that point in time she had not secured a suitable offer to purchase any of the Bindts Road parcels. She said she suggested to Mr Voci that they should send Mr Rapita to continue negotiating with the vendors of Bindts Road. It was put to Ms Troiano, and she denied, that it was Mr Voci who came up with the strategy of isolating the Cvetanovskis and, once they had agreed to sell, Mr Rapita approaching the other Bindts Road land owners. Mr Voci said the idea came from Mr Rapita. Mr Cardamone agreed in cross-examination that the idea came from Ms Troiano. Although not an issue of great moment, I accept that the idea to involve Mr Rapita in approaching the vendors was first expressed by Ms Troiano.

466 Cross-examined about the Shanghai dinner, Ms Troiano said she 'changed strategy to succeed'. She said she 'gave Mr Rapita an overview of the six properties' and that she was 'in control', 'so all of the direction and all of the actions that were taken around this were me'.[123]

467 Mr Rapita was not called to give evidence. Telephone text messages exchanged between Mr Rapita and Mr Voci in relation to Mr Rapita's dealings with the Cvetanovskis were in evidence. No such messages or communications passing between Ms Troiano and Mr Rapita were in evidence; communications that might have been expected if it was Ms Troiano who orchestrated the strategy and the transaction concerning 130-150 Bindts Road. I do not accept that Ms Troiano 'was in control'.

468 Mr Voci said he had gone to China with the intention of seeing whether he could find a purchaser for Bindts Road. Mr Cardamone said that in a conversation in Mr Voci's hotel room in Shanghai, Mr Voci announced 'he "would go for it", and purchase Bindts Road for himself'.[124] Mr Cardamone said this was the first time he learned of Mr Voci's intention to purchase Bindts Road for himself. Ms Troiano said she did not recollect any discussion in Mr Voci's hotel room about Bindts Road. I accept Mr Cardamone's evidence that for the first time, in Shanghai, Mr Voci announced his intention to personally purchase the Bindts Road land. I also find that there was no discussion in Shanghai about Ms Troiano having an equity or profit share in Bindts Road. That is so notwithstanding Mr Voci's announcement. Ms Troiano's failure to speak up at that time and to assert a 25% equity and profit share in Bindts Road tells against the existence of the common intention for which she contends.

469 Following the Shanghai trade fair, it did not take Mr Rapita long to secure an arrangement with the Cvetanovskis. On 8 April 2015, the Cvetanovskis granted an exclusive sale authority for the sale of 130-150 Bindts Road, to Rendina Real Estate, with a nominated price of $20 million. On the same day, heads of agreement were entered into between the Cvetanovskis and Dual Occ, for Dual Occ to buy 130-150 Bindts Road for $21,786,250. The heads of agreement were subject to the purchaser accepting the contract of sale and the section 32 statement. While not conditional on Ministerial approval of the PSP, the purchaser could easily avoid going ahead with the transaction if the contract of sale was not to its liking.

470 Cross-examined about the fact that it was Dual Occ, an existing company controlled by Mr Voci, that entered into the heads of agreement for 130-150 Bindts Road and not a new company, Ms Troiano said that she and Mr Voci discussed this issue at the time. That is, between entry into the heads of agreement on 8 April 2015 and entry into the purchase contract in July 2015 and they decided they would incorporate a new company if the acquisition went forward. I do not accept the truth of that evidence. I do not accept that any such discussion occurred.

471 The 8 April 2015 heads of agreement provided that the purchase price for 130-150 Bindts Road was payable over four years, with a 'holding' deposit of $5,000 to be held by Rendina Real Estate. A 5% initial deposit of $1,089,212 was provided for.

472 On 10 April 2015 Mr Rapita obtained signed exclusive agent authorities in favour of Rendina Real Estate for the properties at 40 and 60 Bindts Road and 90 and 100 Bindts Road.

473 On 11 April 2015 Mr Voci sent an email to Ms Sainato which included the following:

BTW, game changes... We just purchased 30.5 hectors [sic] of land in Epping and we are about to buy next door 20 hectors [sic] on Monday, as a PSCA project, I'm backed by Chinese, so the money side is their to do the project

Get ready this is massive about 1000 blocks of land we can do over five years, so that at 240 K each, that's 240 million and more if we squeeze it right

And the game is now changed

Every one is pumped up, and ready to go,

Get stuffed austarland and piss off stock land , make way for PSCA is half the precinct

474 Cross-examined about the email, Mr Voci rejected the proposition that the project 'eventuated' under the 14 November 2014 agreement.[125] He said that it was his intention at the time to buy the land, secure it and develop Bindts Road. It was put to Mr Voci that by calling it a PSCA project, he meant that it was not a client project, and that it was not a personal project of his alone. The reference in the email to Chinese investors is consistent with PSCA undertaking the project rather than Mr Voci personally. Irrespective of who it was intended would complete the 130-150 Bindts Road purchase under the 8 April 2015 heads of agreement, upon that agreement having been signed, in light of the work being performed and thereafter performed by Ms Troiano, I find that the project at 130-150 Bindts Road 'eventuated'.

475 On 14 April 2015, heads of agreement were prepared for signing between the vendors of 40 and 60 Bindts Road and the vendors of 90 and 100 Bindts Road. The heads of agreement referred in each case to a holding deposit of '$1000' to be held in trust by Ovation Real Estate Pty Ltd. No signed copies of those documents were in evidence. There was no evidence that either of the holding deposits referred to were paid.

476 Mr Rapita began working at Ovation Real Estate in May or June 2015.

477 From around May 2015, part of the land at 130-150 Bindts Road was the subject of a PSCA instigated sales campaign for the sale of individual residential lots on the final proposed plan of subdivision. On 18 April 2015, Mr Basile proposed to sell lots off the plan in exchange for a $110,000 reservation fee, with a view to raising $5.5 million to fund payments due under the contracts. What was proposed was the sale of blocks in the future sub-division for $150,000, with $110,000 to be paid on signing and $40,000 at settlement when the title was issued. The proforma agreement between PSCA and the prospective purchaser of individual lots, referred to PSCA receiving the reservation fee of $110,000 in full. On 19 April 2015 Mr Cheng and Mr Voci exchanged emails in which they canvassed the proposed pre-sale of lots to Chinese investors. Mr Voci gave evidence, that I do not accept, that he proposed that River Hills would pre-sell the land as opposed to PSCA in whose name the draft sales documentation was prepared for the sale of lots to Chinese investors.

478 On 21 April 2015 the owners of 40 and 60 Bindts Road confirmed their agreement to grant Dual Occ exclusivity for a period of 30 days to purchase those properties. The letter required payment of a $1000 deposit to be held in trust by Ovation Real Estate. Nothing in the letter compelled the parties to execute a contract of sale and no sale price or terms were specified. A draft heads of agreement for Dual Occ to purchase that land for $6,713,000, dated 14 April 2015, forms part of the evidence. There is no evidence this document was ever signed by the vendors, although Ms Troiano said she was 'pretty clear' a heads of agreement was entered into in late 2015.[126]

479 On 22 April 2015 River Hills Estate Pty Ltd was incorporated. As part of her case, Ms Troiano contended that the incorporation of this company and the other Voci companies that subsequently contracted to purchase parcels of land in Bindts Road was 'pursuant to the MPD Agreement'. If the purchases by those companies were 'pursuant to the MPD Agreement', there was no note or memorandum or any email from Ms Troiano or from Mr Voci to that effect. There was no evidence, including from Ms Troiano, of a discussion with Mr Voci, or anyone else involved in establishing those companies that they were being incorporated to give effect to Ms Troiano and Mr Voci's joint venture. I reject the proposition that River Hills Estate Pty Ltd or any of the other River Hills companies were incorporated 'pursuant to the MPD Agreement'.

480 On 30 April 2015 Ms Troiano sent an email to Mr Voci in relation to Bindts Road. She reported, amongst other things, on her discussions with the surveyors and as to additional costs, including regarding environmental issues relating to the golden sun moth and the growling grass frog. Cross-examined about this email Mr Voci accepted this was the sort of information and assistance that he was looking for from Ms Troiano in her role as a development manager. Other examples of work performed by Ms Troiano at around this time were put to Mr Voci in cross-examination and he accepted those examples corresponded to his expectation of the development manager. That evidence from Mr Voci directly contradicted the defendants' pleaded case as to the quality of Ms Troiano's performance.

481 Ms Troiano agreed that from around this time other PSCA personnel were spending time and PSCA money working on the Bindts Road project and that she did not criticise that fact or complain about it. She said she did not complain. She saw that fees were being charged through the job cost reports. She said it was cost that needed to be accounted for and that she would have welcomed any work to advance the project.

482 On 6 May 2015 Ms Troiano met with a solicitor who acted for Mr Voci and PSCA, Mr Stenning, in relation to the land at 40-60 Bindts Road. When questioned about this meeting, Ms Troiano initially said she could not recall. A little later, after being shown some documents, she said 'I'm remembering from what I've just looked at'.[127] I accept that statement as truthful evidence. While the answer is not significant of itself, and represents a statement made more or less in passing, it characterised much of Ms Troiano's evidence, evidence learnt/reconstructed from documents.

483 On 10 May 2015 Mr Voci reported that Mr Cheng had already signed up 19 lots on Bindts Road. In an email chain sent to a number of people, including Ms Troiano, Mr Cheng, Ms Wang, Mr Rapita and Mr Basile, Mr Voci said 'we have al [sic] worked hard on this and it will pay of [sic] for all of us'. Ms Troiano replied to all: 'Great news and Well done to everyone! Exciting times... Only a great team can pull this together, as the road is long and the mountain is high!'. Nothing about that enthusiastic email exchange points in favour of a joint venture between Ms Troiano and Mr Voci to develop Bindts Road.

484 On 12 May 2015, following a meeting with Thomson Geer, a law firm, Ms Troiano sent them information specific to the investor structure proposed for Bindts Road, including the Trust Deed and Information Memorandum to be provided to investors. In neither of those communications did Ms Troiano refer to or seek legal advice about the documentation of her asserted 25% profit or equity share in Bindts Road. She responded to cross-examination about that omission by saying that she did not need to do so because she had an arrangement with Mr Voci. I do not agree that she had such an arrangement. Her evidence was one of a number of attempts by Ms Troiano to argue her case in response to cross-examination.

485 Ms Troiano gave evidence she attended a meeting with Mr Voci and Pitcher Partners accountants on 19 May 2015. At trial what was and was not discussed at that meeting assumed considerable significance for Ms Troiano's joint venture common intention claim.

486 There were three to five people from Pitcher Partners, Mr Cattapan, Mr Stenning, Ms Troiano and Mr Voci in attendance at that meeting. The corporate structures to be used for the purchase of the various parcels of land in Bindts Road were discussed.

487 Ms Troiano gave evidence that during the meeting she whispered to Mr Voci, 'What about me?', and that he responded, 'Leave it with me'.[128] Mr Voci said that such a discussion did not happen.

488 Having observed Mr Voci in the witness box over a number of days, it is clear to me that he experiences very significant hearing difficulties. I do not accept as truthful Ms Troiano's evidence that, by April 2015, having known Mr Voci for more than eight months, and having worked closely with him over that time, she would have whispered anything to him. I do not accept that if she had whispered something to Mr Voci that he would have actually heard what she said. Mr Stenning, Mr Cattapan and Mr Basile were all present at the meeting. They all gave evidence and were cross-examined. None were cross-examined about whether they overheard or observed the alleged whispered conversation. I do not accept Ms Troiano's evidence that such a conversation occurred. Ms Troiano's evidence of such a conversation was made up.

489 Ms Troiano said that after the meeting, she and Mr Voci had another conversation in which she asked him if he would sort out her equity and profit share. She said that Mr Voci said, 'Leave it to me'.[129] Mr Voci denied any such discussion took place. I accept his evidence.

490 It was put to Mr Voci that at some point before the meeting with Pitcher Partners he told Ms Troiano that financial matters between the two of them were not to be mentioned to Mr Basile or Ms Wang. He denied any such discussion. He said there were no financial matters discussed between Ms Troiano and him in the lead up to the meeting at Pitcher Partners. I accept his evidence.

491 After the meeting, Pitcher Partners provided a memorandum addressed to Mr Voci and Ms Troiano. In the memorandum, reference is made to River Hills acquiring 150 Bindts Road. The memorandum records that River Hills is a unit trust, that the Voci Family Trust will hold 2 million Ordinary Class Units, and investors will acquire A Class Units, with at least 5 million A Class Units to be issued. The memorandum makes no reference to Ms Troiano as a unit holder and does not otherwise refer to her as an equity or profit share participant in Bindts Road. It does not mention the allocation of shares or units to Ms Troiano.

492 There is no evidence that following receipt of this memorandum Ms Troiano questioned Mr Voci or, for that matter, anyone else, about the absence of any reference to her asserted equity and profit share or provision for allocation of shares and/or units in her favour in the memorandum. The failure by Ms Troiano to raise the issue following receipt of the memorandum is inconsistent with her common intention case.

493 One matter discussed in the memorandum was the exposure to stamp duty if a person acquires an interest in land of 20% or more in a private unit trust scheme. That is, a risk of double stamp duty arising from a deemed disposal event. Ms Troiano was cross-examined about that advice in the context of her not having a presently recorded interest in any of the River Hills companies or trusts, yet claiming to have a 25% equity and profit share interest in those entities.

494 Ms Troiano accepted she was aware of the advice. It was put to her that if she understood the exposure to tax she would have insisted on being a 25% shareholder from the outset, rather than run the risk of double stamp duty. In response, she said that she was a 25% shareholder, she was not registered, but that Mr Voci 'held those [shares] for [her]'.[130] Ms Troiano said 'there was some kind of a discussion [with Mr Voci] around the fact that it couldn't exceed a certain percentage at that time or it triggered or would risk additional costs and taxes and stamp duties'.[131] I do not accept that any such discussion took place.

495 Ms Troiano said that taxes and stamp duty are an inherent part of any development and just part of what needs to be considered. Later, Ms Troiano said Mr Voci told her it could not exceed 25% in total, including the investors. The evidence given by Ms Troiano was made up. I do not accept the validity of her explanation as to why, if she was aware upon receipt of the advice that there was a potential stamp duty triggering event in respect of which her interests were not protected, she would not have done something to seek to protect those interests at the time. I do not accept her evidence that there was a discussion with Mr Voci to the effect described by Ms Troiano at about that time. In all of the email communications that passed between Ms Troiano and Mr Voci concerning Bindts Road, there was never once an email that referred to Mr Voci holding 25% of the shares for Ms Troiano.

496 Ms Troiano gave evidence in her witness statement that Mr Voci did not ask her to become a shareholder or director of the River Hills companies and she 'did not think it was necessary for [her] to be a shareholder in those companies to have an equity and profit share in Bindts Road under my contract'.[132] That was submitted by Ms Troiano to be the case because she trusted Mr Voci. I do not accept that because of trust, Ms Troiano said nothing. She said nothing because she had no entitlement to, and there was no common intention, that she have a 25% equity and profit share.

497 In communications with other third parties after the meeting at Pitcher Partners, Ms Troiano never asserted an entitlement to a 25% equity and profit share. That includes in circumstances where objectively, if she either held or believed she held such an interest, she could reasonably have been expected to do so.

498 On 19 May 2015, Ms Troiano sent an email to Mr Stenning, copied to Mr Voci, informing him that one outcome of the Pitcher Partners meeting was the need to secure each Bindts Road property in a separate company entity with a separate unit trust. Ms Troiano asked for a new company to be set up urgently to purchase 130 Bindts Road. Her email said nothing about an equity or profit share to be held by her in that or any of the other Bindts Road entities to be established. Mr Stenning was not cross-examined about his recollection of the conference on 25 May 2015. Nor was he cross-examined about his evidence that Ms Troiano expressed no concern to him or in his presence as to her not having any interest in the units as set out in the Pitcher Partners memorandum.

499 Ms Troiano accepted it was she who liaised with Mr Voci's accountant, Mr Cattapan, to set up the six companies to purchase the land in Bindts Road. She agreed that she did not tell Mr Cattapan to give her 25% of the shares. Ms Troiano said that she had 'sorted that with Mr Voci'.[133] She said her understanding was that the shares were as security for loans that would be generated by unit trust investors; that was the sole purpose of the concept and they did not have any underlying entitlement to any project profit. She said she had not been involved in a unit trust before and had no prior experience or understanding of that structure. When it was put to her that such evidence was false to her knowledge, she denied that to be the case. I do not accept the truth of that denial.

500 On 26 May 2015 Ms Troiano gave instructions to Thomson Geer, then the solicitors acting in relation to the contract of sale between River Hills Estate 2 Pty Ltd and the Cvetanovskis, that 'we do not agree with providing the directors guarantee - please stand firm on this'. That was a statement made in reference to the sole director of River Hills Estate 2, Mr Voci. In her dealings with Thomson Geer, Ms Troiano said nothing about any equity or profit share to which she claims to be entitled in this proceeding.

501 On 21 May 2015, Ms Troiano emailed details about the new Bindts Road companies to Thomson Geer and to Mr Wise, at that time the internal PSCA bookkeeper. None of those emails made reference to an equity or profit share entitlement held by Ms Troiano.

502 On 29 May 2015 Ms Troiano attended a conference with a barrister, Mr Rimmer, to obtain advice about the house and land and SOW agreement documentation proposed to be used for the pre-sale of lots at 130-150 Bindts Road. That is, with a view to PSCA being able to access SOW payments to fund the deposits for the Bindts Road land without contravening the Sale of Land Act 1960 (Vic) ('Sale of Land Act').

503 Following that conference, a standard form of agreement was entered into with external investors for the presale of 65 lots in the 'River Hills Estate'. By structuring the agreements in this way, described to as the 'head locator model', PSCA considered it was legally able to access the SOW fees of $78,000 per lot without contravening the Sale of Land Act so as to apply those funds to pay deposits on the purchases of the Bindts Road land. 65 such agreements were entered into with predominantly Chinese investors. Whether the head locator model contravened the Sale of Land Act or not, as a matter of fact, PSCA accessed the SOW fees paid up front by the investors. That enabled PSCA to raise $5,070,000 from 65 investors to fund the balance of the deposit moneys required to be paid under the Bindts Road land purchase contracts.

504 The standard form agreement recited that PSCA, via its associate River Hills Estate Pty Ltd, was offering an opportunity for investors to secure 'undeveloped' land lots at a heavily discounted price, packaged to complete a profitable house and land project, with built-in profit. The lots were described as having an estimated retail value of $220,000 for the 'exclusive one off land price of $58,800 (plus additional costs relating to PSCA...) with a minimal reservation fee of $5,000 down to secure your lot.' The payment structure involved an initial reservation fee of $5,000, the payment of a 5% deposit on the land contract ($2940 payable on signing the contract of sale to purchase the lot to Ovation Real Estate), the PSCA fee in accordance with a SOW agreement, $73,000 (being $78,000 less the $5,000 reservation fee) and on settlement of the land contract, in approximately 24 months, payment of the balance of the land purchase price, $55,860. For all of the works the subject of the agreement, the SOW fee was an un-dissected lump sum of $78,000 per lot.

505 Mr Cheng was involved in the sale of the 65 future lots at Bindts Road for the purpose of raising funds to cover the deposit. The price per lot was fixed at $136,800; that included a SOW fee of $78,000. Mr Cheng gave evidence that the pricing was very attractive, most of the lots were sold in the first month, and all within two months. The settlement period for the completed lots was two years, so there was time to process the subdivision plan or sell more lots in the future if more money was needed.

506 While not a matter to which attention was directed during the trial, in the financial year ended 30 June 2015, PSCA recorded gross income of $3,270,356. Profit was $1,856,979 arrived at after allowing for expenses including salaries and wages of $599,417. Profit was recorded in the financial accounts as having been distributed to beneficiaries, the Voci Family Trust.

507 On 27 July 2015 contracts of sale were signed for 130 and 150 Bindts Road. The purchase price for 150 Bindts Road was $13,204,800 with a deposit of $560,000 payable in 120 days (with $100,000 already having been paid) with the balance payable on terms over 48 months. The purchase price for 130 Bindts Road was $8,553,600 with a deposit of $327,000 payable in 120 days (with $100,000 already having been paid) with the balance payable on terms over 48 months. The purchaser of 150 Bindts Road was River Hills Estate Pty Ltd, and the purchaser of 130 Bindts Road was River Hills Estate Pty Ltd 2.

508 Mr Voci gave evidence that by the second half of 2015, 'I was quite stressed with PSCA's position. While Bindts Road was the primary concern, many other projects had significant problem[s] which Ms Troiano was also involved with'.[134] I do not accept that evidence as truthful. It is inconsistent with the financial position of PSCA as recorded in its accounts. Further, as put to Mr Voci in cross-examination, if he was stressed, why is it that on 27 July 2015 he signed the contracts for the purchase of 130 and 150 Bindts Road?

509 On 28 July 2015 Ms Troiano emailed instructions to Mr Stenning (copied to Mr Voci, Mr Basile and Ms Wang) and provided copies of the River Hills SOW agreements, so that Mr Stenning could instruct a barrister to provide advice. Ms Troiano did not give instructions to Mr Stenning to the effect that she held a 25% equity and profit share in the project.

510 On 29 July 2015, 7 August 2015 and 18 August 2015, there were various email exchanges between Ms Troiano, Mr Ladson and Mr Dugan of JCA and Mr Linke of Contour Town Planning, in relation to bridgework, culverts and environmental issues concerning the Bindts Road land. As these and other documents prove, there is no doubt that Ms Troiano was actively engaged in the Bindts Road development project.

511 On 11 August 2015, Mr Voci expressed frustration about Ms Troiano's use of consultants in relation to Bindts Road, saying 'constants [sic] don't know shit'; questioning the utility of such engagements. When cross-examined about her use of consultants, in substance Ms Troiano said that it was appropriate to use consultants for a development of such size and complexity. I agree.

512 On 11 August 2015 Ms Troiano gave instructions to Thomson Geer in relation to the purchasing entities for the land at 100, 90, 60, and 40 Bindts Road. She said that personal guarantees would be provided by the company director. Once again, Ms Troiano did not refer to her 25% equity and profit share.

513 Having signed the Bindts Road contract in late July and then the Donnybrook contract on 4 August 2015, the evidence Mr Voci gave in his witness statement was that 'By around August 2015, Ms Troiano's misstatements about her prior experience began unravelling, and it then became clear to me that she had no idea how to manage the Bindts Road project'.[135] I do not accept that evidence as truthful. If, as asserted, Ms Troiano had 'no idea' how to manage the Bindts Road project, Mr Voci would not have left her involved in that project but would have moved urgently to engage a replacement project manager. As the chronology shows, although enquiries to employ a civil engineer began in August 2015, it was not until 4 November 2015 that Mr Raniolo was offered employment, not as a replacement for Ms Troiano but as 'Development Director' working alongside Ms Troiano.

514 On 24 August 2015 Ms Troiano sent an email to Ms Sainato and Mr Voci reporting on her discussions with a view to identifying a suitable project manager to work for PSCA with large scale greenfield subdivisional experience, civil contracting qualifications and a minimum of ten years site related and project documentation experience. The email described the person sought as one who has a competent understanding of urban design and landscaping planning infrastructure and roadworks, 'required to support the development team to create and monitor project plans/subdivision designs against time, cost and quality outcomes'. The proposed role included 'management of external consultants and contractors ... a fast paced environment, great team, working along-side development manager'.

515 Cross-examination of Ms Troiano in relation to this email and this position was on the premise that such a person was needed because she did not have those skills. I do not accept the validity of the premise. The position required an experienced civil engineer. The person appointed to the position, a person whose appointment was not, as it turned out, successful (Mr Raniolo), appeared at that time to have those qualifications. I agree with Ms Troiano that what was required was a different skill set to those which Ms Troiano brought to the table, no matter whose view of what she brought to the table is acted upon.

516 What is significant about the 24 August 2015 email is that it referred to the engineer working 'alongside' Ms Troiano; not Ms Troiano reporting to the engineer. That is, in contrast to the defendants' pleaded case, that Ms Troiano assisted Mr Voci to interview and to employ Mr Raniolo 'to act as her superior'. It is correct that Mr Voci and Ms Troiano interviewed Mr Raniolo together. When Mr Voci said that Mr Raniolo's role was to act as Ms Troiano's superior, that evidence was false.

517 The case opened for the defendants was that by September 2015 various issues of poor performance and inexperience had been identified by Mr Voci and PSCA staff in respect of Ms Troiano and her ability to act as a project manager. This conduct and lack of expertise was said to be putting individual projects at commercial risk and exposing PSCA to significant financial dangers.

518 Mr Voci said that by September 2015 it had become apparent to him that 'as a consequence of Ms Troiano's handling of the Bindts Road project, PSCA would not be able to undertake the project because of the grave financial difficulties that she had caused myself and PSCA to be in. The problems with the Bindts Road project had got to a point which had put my solvency, and consequently the solvency of PSCA, at real risk'.[136] This evidence was given as evidence of the circumstances leading to what Mr Voci says was discussed on 9 September 2015.

519 I do not accept this evidence as truthful. It is entirely inconsistent with contemporaneous events and actions taken by Mr Voci at the time. The agreed chronology records that on 7 September 2015 payments began to be received pursuant to SOW agreements relating to the sale of 65 notional lots at 130-150 Bindts Road. As was put to Mr Voci in cross-examination, if he was concerned about solvency at the time, he would not have signed the contract for the purchase of Donnybrook on 4 August 2015, which required the payment of a deposit of $25,000 by 26 August 2015, $875,000 in 90 days, $900,000 28 days after the PSP, and settlement of the balance on 22 November 2019. On 18 September 2015, at a time when Mr Voci said he was under financial stress and was experiencing 'great financial difficulties' due to the acts or omissions of Ms Troiano, Mr Voci completed the purchase of a residential property in Cruickshank Street, Port Melbourne which he had contracted to purchase 60 days earlier at a price of $2.2 million. The purchase price was paid without Mr Voci needing to take out a mortgage loan. Mr Voci's evidence that he and PSCA were as at September 2015 experiencing 'grave financial difficulties' is simply false.[137]

520 Ms Troiano alleges that in about June to August 2015, pursuant to the MPD Agreement, she undertook work for the purpose of assessing the feasibility of a property development opportunity for she and Mr Voci to undertake at Donnybrook. She alleges that as a consequence of that initial work, she recommended Donnybrook to Mr Voci as a Major Project that the two of them would undertake together and he agreed they would do so. Further, that following that agreement Mr Rapita, in consultation with her, negotiated terms for the purchase of Donnybrook for $18 million, on terms.

521 The defendants deny Ms Troiano's allegations concerning Donnybrook.

522 There was no discussion between Ms Troiano and Mr Voci and no emails exchanged between them to the effect they should or would purchase Donnybrook together. There was also no evidence from which it could properly be inferred that Donnybrook was a project that Ms Troiano and Mr Voci agreed to purchase and to undertake together. Donnybrook was, however, contrary to the Defence, a 'particularly large Major Project'. In cross-examination, Mr Voci agreed that Donnybrook was a 'particularly large Major Project' and that he understood that to be so at the time.

523 The identification of Donnybrook as a potential site was by Mr Rapita. After he told Ms Troiano about it, on 9 June 2015 she sent an email to Mr Ladson asking him to run a quick site and yield check. On 10 June 2015 Ms Troiano spoke to the Whittlesea Council about the site.

524 Original advice from Mr Ladson was that no PSP had been prepared for Donnybrook, it looked like the formation of a PSP was two years away and that until the PSP reached the exhibition stage, there was no clarity around future development potential. On 11 June 2015, on receipt of that advice, Ms Troiano emailed Mr Voci and Mr Rapita saying the property looked like 'another one to move on from'.

525 Mr Voci said that Mr Rapita suggested entering into a contract with a $25,000 refundable deposit and a due diligence period. Mr Voci accepted and acted on that advice. He said that before he went ahead 'with the deal' he never discussed or agreed with Ms Troiano about her acquiring any equity or interest in the project.[138] I accept that evidence.

526 On 4 August 2015 Mr Voci signed a contract for the purchase of Donnybrook for $18 million, payable as follows:

24 November 2015 or 3 days after due diligence $875,000

527 Ms Troiano said that at the time the Donnybrook contract was signed she 'assumed that Voci would nominate the property to be acquired by a corporate vehicle which we would establish to own the Donnybrook Site... I did not think it was necessary for me to be a named purchaser in order to hold an equity in the project and an entitlement to my profit share'.[139] I do not accept that Ms Troiano held the assumption at that time of which she gave evidence. Even if she did hold that assumption, she took no steps to communicate it to Mr Voci and it was not an assumption common to him.

528 Ms Troiano said that in August 2015 Mr Basile told her he had found clients of PSCA who were Chinese investors who would provide the money to pay the deposit to the vendor of Donnybrook. She was told by Mr Basile and Mr Voci that these investors were provided with 'shares in a unit trust' in exchange for providing PSCA with $2 million to be applied toward the deposit. Mr Voci described raising $1.64 million via a sale of units in the Donnybrook Road Trust.

529 In her written opening, Ms Troiano contended that she undertook extensive work in assessing and recommending the Donnybrook project to Mr Voci. Further, that she assisted with negotiating the acquisition, dealing with consultants, council and authorities. Mr Voci accepted that Ms Troiano had a substantial role in the Donnybrook due diligence process.

530 As an example of her involvement, on 21 August 2015 Ms Troiano passed on an email from JCA to Mr Voci, which contained advice from Yarra Valley Water that because services were remote from the site there would be significant 'bring forward' costs, exceeding $10 million, to get the development serviced. She gave evidence that at that time, due diligence was under way and she was hopeful Dennis Family Homes (who were developing adjoining land) would, as part of that development, bring the sewer and other services closer to the boundary at their cost.

531 The work that Ms Troiano performed relating to Donnybrook was work performed by her pursuant to the 14 November 2014 agreement. As a 'particularly large Major Project', Donnybrook was a project falling within the final sentence of the Remuneration Schedule.

532 On 3 September 2015, there was an email exchange about Ms Troiano attending a meeting with Yarra Valley Water and Mr Dugan of JCA to discuss sewer and servicing issues, and whether such a meeting was within the scope of the quoted fees for Donnybrook. Ms Troiano asked Mr Dugan whether it was necessary for them to attend and said that she was 'happy for you to represent and relay information.' Mr Voci replied 'Rita go and attend.' Mr Voci was cross-examined about this email. Put to him that he was 'very critical' of Ms Troiano, Mr Voci said he was not being critical but that he considered as Development Manager she should be present at such a meeting, and it seemed she was not going to attend.[140]

533 Mr Voci was cross-examined about Excel spreadsheet feasibilities for Donnybrook and for Wedge Street, which he forwarded to Ms Troiano, using what he referred to as his bespoke feasibility, prepared around September 2015. These feasibilities, which were exchanged between Mr Voci and Ms Troiano, were not prepared using the Estate Master model, but were prepared using Mr Voci's spreadsheet model. Although describing it as high level, Mr Voci accepted the Donnybrook feasibility was entirely adequate for the purposes of the project at that time. His acceptance that was the case stands in contrast to the allegations in the Defence that Ms Troiano was unable to develop satisfactory project feasibility studies.

534 The Variation Agreement relied upon by the defendants is alleged to have been entered into by Mr Voci and Ms Troiano on 9 September 2015. They allege that in consideration of PSCA not taking steps to dismiss Ms Troiano, given her poor performance, it was agreed the 'True Agreement' would, instead, be varied. The varied terms alleged are that PSCA would replace Ms Troiano as Senior Development Manager, that she would assist in the recruitment of her replacement, that PSCA would continue to employ her at her existing salary until such time as a replacement Senior Development Manager had commenced, whereupon her salary would be reduced by negotiation.

535 The defendants further allege that during three meetings between Mr Voci and Ms Troiano on 9 September 2015 and in the days that followed, it was agreed that PSCA would not incorporate or establish the MPD as a consequence of the Ms Troiano's failures, and that PSCA would not provide any profit share or equity to Ms Troiano in respect of the MPD or any other part of PSCA.

536 Ms Troiano agreed that she met with Mr Voci on 9 September 2015. She denied that any Variation Agreement was arrived at, whether at that meeting or in the course of three meetings at about that time.

537 On Ms Troiano's version of the events, there was one meeting on 9 September 2015 at which the concerns expressed by her in an email she sent to Mr Voci at 12:05pm that day were discussed. On Mr Voci's version of events, there were three meetings, and in none of those meetings were the matters referred to in Ms Troiano's email discussed. Mr Voci said that on 9 September 2015 what was discussed were matters set out by him in a draft email that he printed out prior to the meeting but which was never sent to Ms Troiano. The draft email formed part of an email sent by Mr Voci to his then solicitor approximately one year later.

538 It is convenient to first identify the emails relied on by Ms Troiano and Mr Voci, and also other emails sent or received by them on 9 September 2015 for context; second, to consider the evidence given by Ms Troiano and Mr Voci about these events and then to make findings concerning the Variation Agreement.

539 The email from Ms Troiano at 12:05pm on 9 September 2015 states:

Hi Ross,

Respectfully...

I need some clarification as to who is doing what here... so that I can step up some control and effectiveness in my role as a Development Manager. Eg; Justin has commented that Burwood is his project?

As a Development Manager, my role is to oversee, manage, direct and co-ordinate all the consultants / contractors / sales / teams and happenings involved in my projects, as well as to be completely informed -

I would think that is what is expected of me, and for my experience and abilities to be fully utilised. I do not wish to be invalidated and prefer not to be directed by Enio who attempts to exercise authority over me, in matters which relate to my field, my department or my projects. As Development manager, I should oversee and support the sales team. In the event of someone even more senior than me such as a land development manager being introduced, I would look forward to aligning with them and learning all I can for us to grow, as you know.

Furthermore, we now have a Planning expert in house and that would mean that the highest form of planning advice and management should be through him (Michael)???

And also, design co-ordination I would assume might be through Pam?

I also noted that there was a meeting held in relation to Bindts Rd yesterday, of which I was not a part or advised of. I know we don't all need to be wasting time with everything, all the time, but what tends to happen is that Im brought in at a later stage and left to piece things together only partly informed. As Manager and a stakeholder on this one too, should I be confused about this?

And about the SOW's suddenly being concealed from me - do you believe I cannot be trusted, why?

There are too many chiefs, not enough indians and its a little encumbersome.

Guess this might lead to the re-structure you are arranging and the talk we've been meaning to have.

Please don't misjudge my intention in communicating this with you, which is brought forward in my commitment to growing and prospering with you for the long run and my deepest respect for you, which is what I enlisted for and gave my word to. I'm trusting you to do the right thing by me, as I would do by you.

I welcome a discussion when you have some time.

Thanks,

541 The email that Mr Voci sent on 14 September 2016 to Ms Sainato and to his then solicitor which he said incorporates the draft composed and printed by him before the 9 September 2015 meeting states:

Rima This was the email that I wrote we discussed this over 3 meetings September 2015 I did not send her the email as I prettied it and we discussed each pint in each meting

You will note that at the end the email says I will not be setting up the major projects

We can note time and date and meetings on her dismissal letter where she agreed to continue to work without major projects just in her wage

We sack her today she has taken confident information home with her on the cost and profits t of each job, she asked

Brent to give this to her on Tuesday this week , the documents are not in the office.

Bring on new projects no effort form you to do this

Met 3 major projects , only recently we had bindts road , gardner , hunter , Craig st , bailey boo wood are not major projects ,

Run the jobs , I¹m constantly telling you what to do when to do it , admin stuff,

Not understanding the flow of the jobs and pre programming the job flow for any of you projects

Smart sheet no self driven motivation to learn this , you signed up for the tutorial but did not follow through

You got imma to do all the work, still has not been done, you still have not learned it, where is the smart sheets for gardner , hunter Š

Spur branch , I asked you to go out an take a look with the builder to learn , you did not

5k debt over 9 months , iv asked you 4 time over 3 months to get onto it , still not done

Yarra st demolisher after hongs mistake you did it again the demolisher stent you pics of what may have been there ,

you did not go out an inspect this after we had spoken about this and the whole espied with hong ( again this job is not sitting in you office and sending emails )

All work done from computer no understanding on the actual work to do , most of what you so is order reported when you are triggered to do so

Walking around in office like you have nothing on completes from staff members that you do no work

Lunch extra long lunches and not keeping up with work,

Woodstock again sending consutants to meetings for reports , you should be going to the meeting with them, not just reading reports and spending money for consutants , this was a critical point to the whole project , you say you have my interest at heart but I¹m the one who is committing the 18 mill and taking the risk how can I trust you if you can¹t be bothered even attending meeting and leaving my risk to constant who do not care what happans

Handing / people skills you are not working well with other members of the staff , not just enio or Anna , other stuff members have complained on your approach

You say you are to cordinate the sales and marketing , yet you have not stepped in to help enio and anna on the weekends or late nights they have been in their selling, its a constanet fight with you guys, how can you coordinate sales or people if you do not lead by example, you can¹t mange the development if you do not fully understand it nor the sales , enio and anna have told you and James and myself that the Chinese what tp be tread a certain way , yet both you and james shrug it of like you know better , the is poor leadership skills , the salsa guys are telling you what they need ,

James you are constantly with James sin the office , everyone things their is something going on with you 2 , I gave you both separate offices to stop it , yet 80 % of the time I¹m out of my office you are walking around or in James office

Imma will be appointed new manger you will be under her like most of PSCA as a project manger

I will not be setting up a new company as major projects

542 Although the opening words of the 14 September 2016 email 'we sack her today she has taken confident[ial] information home' were clearly written in 2016, Mr Voci maintained that substantial parts of the email, including the reference that appears a little over halfway through the document to 'Woodstock' was written by him before the 9 September 2015 meeting. An electronic record relied on by Mr Voci shows that a draft email was saved at 8:34am on the day following the meeting, 10 September 2015 on Mr Voci's computer. The electronic record does not show the contents of that draft email at the time it was saved.

543 In determining whose version of the events of Wednesday, 9 September 2015 is to be preferred, it is useful to have regard to context provided by other emails exchanged between or copied to Ms Troiano and Mr Voci that day.

544 At 10:18am Ms Troiano sent an email to Mr Voci concerning Harvest Home Road. She enquired whether Mr Voci thought that design guidelines should be included for individual lots in the proposed subdivision. At 1:54pm Mr Voci replied saying he did not think guidelines were needed for that subdivision.

545 At 1:45pm Mr Voci sent an email to Ms Troiano asking her to 'run some numbers' on a site that was for sale at 179 Gladstone Street, South Melbourne; a development site about which information had been sent to Mr Voci at 9:37am that morning.

546 At 1:02pm on 9 September 2015, the Hunter Street client sent an email asking Ms Troiano how progress was going, to which Ms Troiano replied a short time later. At 4:36pm, the same client enquired whether extra soil testing had been requested. At 5:29pm Ms Troiano forwarded those emails to Mr Voci, and asked whether she could tell the client that soil tests had been undertaken when that was not true. Mr Voci replied at 5:55pm that it was not necessary to have soil tests yet. The email from Ms Troiano was a direct request for permission from Mr Voci to lie to the Hunter Street client.

547 At 2:17pm an email was received by both Ms Troiano and Mr Voci from Contour Town Planners, containing a fee proposal for submissions concerning Bindts Road relating to the Quarry Hills PSP. At 5:25pm Ms Troiano sent an email to Mr Voci, Mr Ladson, Mr Linke, and other consultants, requesting a meeting to discuss issues relating to Bindts Road. Ms Troiano proposed the meeting be held the following Monday.

548 At 9:47pm on 9 September 2015, Ms Troiano sent an email to Mr Voci concerning Bindts Road:

If we defer the tax payment long as possible/ as we move onto the 4 remaining bindts Rd lots, can't we absorb profits by putting all expenses incurred through PSCA as manager, running profits low to reduce tax? Including wages, consultants etc. PSCA is engaged to deliver a permit to the head developer 'river hills'.

Mmm in order to run profits low and we put it in pica then pasca [sic] will make profit so river hills pays less but pica will have more , same thing

The tax will be paid no mater what, as soon as the money is is , we owe tax , the timing is the best we can do , but I also have to take into consideration if the shit hits the fan where dose the tax money come form , we have used up all the funds so then we owe 5 mill back to investor and 2.5 to the ago , 7.5 mill , I can't trade out of that one , that's the issue for me more then anything else

549 Turning next to the evidence, if Ms Troiano's evidence concerning 9 September 2015 is accepted, there never was the Variation Agreement and the allegations concerning it are a fabrication.

550 Ms Troiano said that during the meeting that she and Mr Voci discussed personnel and management issues relating to Mr Basile and Justin Dose, a junior employee. Ms Troiano said that she expressed frustration with Mr Basile who wanted to exercise authority over her, had been resisting and undermining her, and who would not take instruction from her unless it came from Mr Voci. They discussed that the SOW for Harvest Home Road had been removed from her files and that she no longer had access to it. She said Mr Voci told her he was restructuring the company files because the business was growing and he did not want everyone to see how much money was being made. Ms Troiano said Mr Voci reassured her, told her not to stress about it and if she needed to know something just to tell him. She said they discussed employing some additional skills in her department and the need to add additional technical experience because of the Bindts Road and Donnybrook projects. Ms Troiano said that structure of the business was discussed in the context that PSCA now had a new in-house planner. Ms Troiano said she told Mr Voci she did not mind taking instructional guidance from someone who had expertise in a particular field. They discussed whether taking on somebody extra would be viable.

551 Ms Troiano said she expressed concern about too much money being spent and whether it was necessary or whether it was better to stay with outsourcing and using external consultants as needed. Mr Voci responded by saying that it will be good to have a person who could teach both of them a thing or two because neither had done this scale of development (Bindts Road) before.

552 Ms Troiano said there was discussion about an earlier meeting concerning Bindts Road to which she had not been invited. Again, when Ms Troiano said she was a bit worried about that, Mr Voci reassured her, told her not to stress, and said that she could not be involved in absolutely everything.

553 Ms Troiano said there was discussion about pre-sales for Bindts Road. She said she told Mr Voci she was worried because Mr Voci seemed to be spending a lot of the money and there was a need to conserve resources for the project. Mr Voci said that he had it 'sorted. Back end's pumping'.[141] Ms Troiano responded by saying that she was leaving matters to him, she was trusting him and she was in his hands.

554 Ms Troiano gave evidence that the meeting ended pleasantly and that it was a productive discussion.

555 Anticipating the defendants' case against her, in evidence-in-chief Ms Troiano gave evidence that there was no discussion of her contract, or of varying her contract. Nor was there any criticism of her performance except that her management style was discussed. She said Mr Voci critiqued her management style suggesting she change. Ms Troiano said there was no discussion about her failing to bring in potential clients. There was no discussion of her being sacked, of her pay being reduced, of any demotion or of her equity and profit share being terminated. She said she did not break down and cry during the meeting.

556 When Mr Voci gave evidence-in-chief, his account of the 9 September 2015 conversation substantially accorded with the defendants' Variation Agreement pleaded case.

557 Mr Voci said he began writing his draft email that formed the basis of discussion at the 9 September 2015 meeting around July/August 2015 in anticipation of a meeting with Ms Troiano. He started to write down issues concerning her performance. He considered her performance was not helping with the projects she was managing so he was going to dismiss her coming up to the 12 month mark of the MPD and that is why he wrote the email.

558 Asked about the reference by Ms Troiano in her 9 September 2015 email to herself as 'manager and a stakeholder' Mr Voci said she was referring to the MPD. He said there had been some passing discussions about looking to restructure between them prior to that day, but no actual meeting.

559 Mr Voci said he printed his draft email before the meeting. He said he and Ms Troiano ran over the issues that were the topics in that document. He said there was a discussion around the fact that 'set up a team' was part of Ms Troiano's KPIs in order to open up a MPD and that had not happened. He said there was no division: 'we never opened one'.[142] The next item, 'bring on new projects', was discussed, as was the fact there had been no effort from Ms Troiano to do this.[143]

560 Mr Voci said he told Ms Troiano she was reactive and he had to keep reminding her to do things on projects; she did not have timelines or charts and did not have any structure on how to run a project. He said that others at PSCA could not find files that Ms Troiano was working on. He said Ms Troiano responded by saying she did not agree, and that she was always responsive. She said she was running her projects well, and everything was moving fine. Mr Voci said he disagreed and told Ms Troiano her projects were all out of budget and clients were getting very upset. There was a discussion about client deadlines not being met with all projects being behind and clients complaining.

561 Mr Voci was taken in evidence-in-chief through the other items in his 14 September 2016 email, including the reference to Bindts Road which he said he explained to Ms Troiano was not a Major Projects project. He said Ms Troiano agreed Bindts Road was never put into Major Projects. He said he told Ms Troiano that the project that he had purchased and she was managing, Bindts Road, did not have any feasibilities or applications to Council and it had been over a year. Ms Troiano responded by saying she was doing everything she knew how to do, was working on a feasibility and had been working on getting an application to the Council.

562 Mr Voci said there was discussion about jobs and pre-programming. He said he told Ms Troiano she was not following up jobs properly and the reason for that was because she had no programming skills. She could not use Microsoft Project or 'Smartsheet'. He said he told her the whole company had a meeting on Smartsheet but she had missed the tutorial.

563 He gave evidence there was discussion about Ms Troiano's failure to go out and watch a sewer or drain spur branch at Yarra Street being constructed when she was supposed to do so. Mr Voci said he told her that she had made the same mistake with Yarra Street as she had with Burwood concerning the need to ensure there was no asbestos present. Mr Voci told Ms Troiano that most of her work was done from the office, she did not attend meetings and did not go out to site which is not how a Development Manager should work.

564 They discussed a fire stair issue concerning one of Ms Troiano's projects, Gardner Street.

565 Mr Voci said there was discussion about Donnybrook. He said it was around the topic of the Cultural Heritage Management Plan ('CHMP'). He said there was a critical meeting that was required to take place between the cultural management consultant, Ms Burch and other consultants. He said he and Ms Troiano had discussed Ms Troiano going to the meeting and that it was very important that she go but she did not do so.

566 Mr Voci said there was discussion about the topic of people skills. He said he explained to Ms Troiano there had been complaints from staff members about her handling of staff; not just complaints from Mr Basile and Ms Wang.

567 Mr Voci said, at this point in their discussion, Ms Troiano had started to cry a little bit so it was a delicate situation for him as an employer. He said they discussed the two projects, Donnybrook and Bindts Road. He said he told Ms Troiano 'Right now we're almost at 1.5, close to 2 years into Bindts Road and you don't have a full feasibility for me. You don't have an application in Council. All the consultant reports haven't been finalised. I'm - I'm basically driving this blind and we both don't know what we're doing with this project'.[144] He gave evidence that he told Ms Troiano 'we've sold lots that we can't build now because the engineering advice that was provided was incorrect. We are in trouble. This is - the projects are in a lot of trouble. Not so much Donnybrook, but Bindts Road'.[145] Mr Voci said they discussed the problem of not having sewerage available to service the 65 lots that had been pre-sold at Bindts Road.

568 Mr Voci said the meeting was not an argumentative meeting. He gave evidence that it was constructive and that he let Ms Troiano have her say. He said, however, that there was a lot of crying.

569 Mr Voci said he told Ms Troiano that obviously they could not open up Major Projects and that he was not prepared to do that. He said that in response Ms Troiano nodded, crying, agreeing. He said that he would need to find someone to replace Ms Troiano following which she started 'crying a lot heavier'.[146] There was then discussion about her personal life and the work she had previously done in her family business. Mr Voci said they then discussed that he could not dismiss Ms Troiano. He said that he did the right thing as an employer. She said her heart was in the work and she loved doing it. He then said that if he could find someone else to come on, Ms Troiano could take a reduction in salary until someone was found and Ms Troiano could learn from them. It was his evidence this was a delicate discussion for him because he did not like dismissing people.

570 There was extensive cross-examination of Ms Troiano and Mr Voci about the evidence they gave concerning the 9 September 2015 meeting.

571 Ms Troiano was cross-examined about emails from Mr Basile to Mr Voci on 9 July 2015 where Mr Basile had said of Ms Troiano in the context of Bailey Street, 'either she did not listen correctly or she does not have enough time to do more as she had so much on her plate at the moment'. It was put to Ms Troiano that Mr Voci raised this matter with her on 9 September 2015. She denied that was the case. Other examples of criticism of her work such as the need to inspect sewer works at Yarra Street to which Mr Voci later referred in his oral evidence were put to her as having been discussed on 9 September 2015. Ms Troiano denied these matters were discussed.

572 It was put to Ms Troiano that by 9 September 2015, Mr Voci was frustrated by Ms Troiano's 'constant' use of consultants. She disagreed that was the case.[147] Cross-examined about the 24 August 2015 email regarding the proposed employment of an experienced civil engineer, Ms Troiano responded by saying the proposed appointment was about adding an additional skill set. The role, she said, was not intended to be a replacement of any sort, a person to apply different technical knowledge.

573 It was put to Ms Troiano that on 9 September 2015 Mr Voci raised his concerns about Ms Troiano's tendency to send consultants and not to attend meetings herself - an example was said to be the meeting with Yarra Valley Water concerning Donnybrook. Ms Troiano denied that was discussed. It was not put to Ms Troiano in cross-examination that she had failed to attend a meeting with Ms Burch concerning a CMHP for Donnybrook; a matter about which Mr Voci later gave evidence and was cross-examined.

574 It was put to Ms Troiano that problems with her performance meant that as at 9 September 2015, things had reached the stage that Mr Voci and Ms Troiano needed to talk about her future. Ms Troiano denied that was so. It was put to her that on 9 September 2015, and in two further conversations with Mr Voci, that is what they discussed. Ms Troiano denied that was the case. The same was the position when what Mr Voci later said was discussed and agreed between them, including the need to replace her, was squarely put to Ms Troiano in cross-examination, including as to her being in tears. She denied any such discussion or agreement.

575 Ms Troiano said the 'trusting you' and leaving things in Mr Voci's hands comments of which she gave evidence-in-chief came after an earlier discussion of her telling Voci to be careful with spending money and worrying about cashflow.

576 Cross-examined about the 9 September 2015 meeting, Mr Voci denied that discussion took place about the topics raised in Ms Troiano's email sent at 12:05pm that day.

577 Mr Voci said they discussed the points on his draft email document which were 'of far greater...importance' than what was in Ms Troiano's email.[148] He said he printed out his draft email but did not formalise the document or send it to Ms Troiano before the meeting. He said he had a printed copy of his email in front of him, they walked through each point, they also discussed things that were not on his email, but they did not go through Ms Troiano's email.

578 Mr Voci accepted that one of the reasons Ms Troiano sent her email at 12:05pm was because she was having difficulties with Mr Basile. Mr Voci said that even though the email from Ms Troiano said she did not wish to be 'invalidated' and preferred not to be directed by Mr Basile, who attempted to exercise authority over her, these topics were not discussed during the meeting that afternoon.

579 In cross-examination, Mr Voci said, 'We discussed - in the point form we discussed my email that I printed out from my drafts box. In that email I think half way down the page there was already issues that I had between her and Mr Basile and we discussed it at that point ...'.[149]

580 The email from Ms Troiano that preceded the 9 September 2015 meeting was prompted in part by her concern she was left out of a meeting concerning Bindts Road. Mr Voci accepted in cross-examination that Ms Troiano did not believe at the time that she was being fully informed about Bindts Road. He said that he considered that it was not part of the business of employees to know what PSCA charged on SOW fees for projects.

581 Mr Voci denied there was any discussion of Ms Troiano trusting him or that the meeting ended with her saying she was in his hands.

582 Mr Voci accepted that as at 9 September 2015, Ms Troiano looked up to him and valued his opinion of her. I reject Mr Voci's evidence that there was no specific discussion of Ms Troiano's email or of the question of trust that she placed in him. The timing of the discussion, which is common ground took place, was prompted by Ms Troiano's email sent at 12:05pm and Mr Voci's email two hours later. Ms Troiano's email concluded with the statement she was 'trusting [him] to do the right thing by [her]'.

583 I reject Mr Voci's evidence that Ms Troiano did not raise each of the matters in her email during the meeting. In circumstances where Mr Voci responded to Ms Troiano's email, 'Let's have a chat about this now' and they met shortly after that response, I do not accept Mr Voci's evidence that those matters were not discussed. I do not accept as true Mr Voci's evidence that although they did not discuss the matters raised in Ms Troiano's email, that they discussed points on his draft document which were 'of far greater importance', than what is on her email.[150]

584 Although there was evidence that the email sent by Mr Voci to his solicitor on 14 September 2016 was last previously saved to drafts on 10 September 2015 at 8:34am, the day following the meeting, as noted earlier there is no evidence about the contents of the email saved at that time. The email sent on 14 September 2016 makes no reference to what Ms Troiano said during the meeting on 9 September 2015, something that might have objectively been expected to have been included if the document in question was saved the day after the 9 September 2015 meeting.

585 When the contents of the 14 September 2016 email are considered against the timeline of events, I reject Mr Voci's evidence that the email was typed 'as it was going and it was typed well before September 9, and eight weeks to go to meet another two projects'.[151] I do not accept Mr Voci's evidence that the draft email of which he gave evidence existed before he and Ms Troiano met on 9 September 2015.

586 I do not accept Mr Voci's evidence that the reason he did not send the email to Ms Troiano before the meeting was that his 'intent was to actually formalise the document and then send it to her'.[152] If that statement were true, and if Mr Voci's evidence that he printed a copy of the document and its contents were discussed at the meeting is to be accepted, why did he not send an electronic copy of the draft email to Ms Troiano immediately after the meeting? I do not accept his evidence that the discussion followed the draft email he claims he had printed out before he walked into the meeting.

587 The text of the email relied on by Mr Voci refers to an event that did not take place until well after 9 September 2015: 'Woodstock again sending [consultants] to meetings for reports ...'. In evidence-in-chief, Mr Voci said the reference to Woodstock was a reference to a critical meeting for Donnybrook that involved 'our heritage consultant...Jen Burch'.[153]

588 The documentary evidence establishes that Ms Burch did not provide a fee proposal for Donnybrook until 26 July 2016. She did so at that time in response to a request for a CHMP quote by Ms Troiano, copied to Mr Voci, on that same date. Ms Burch's July 2016 response was also copied to Mr Voci. The contemporaneous documents show the meeting involving Ms Burch, to which Mr Voci's 14 September 2016 email refers, took place on 2 September 2016. On 2 September 2016, Mr Voci sent a text to Ms Troiano saying, 'Why r u not in the meeting with Jen. It's in [sic] now go now. Go now call her and go now it's on now. Call her'. That text message was sent two weeks before Mr Voci's 14 September 2016 email to his then solicitor and to Ms Sainato. The meeting on 2 September 2016 is the meeting to which Mr Voci's so-called draft email refers, not a meeting that took place one year earlier, before Ms Burch was even engaged and of which there is no record.

589 Responding to the cross-examiner, Mr Voci sought to argue that there must have been meetings with Ms Burch 12 months earlier. That evidence was false. The inclusion of the reference to Woodstock in the 14 September 2016 email puts beyond doubt that the email that Mr Voci said was written in draft before the 9 September 2015 meeting did not exist, at least in terms of its contents, at that time.

590 In closing submissions the defendants submitted that it was 'possible that in giving his account, Voci may have misremembered a minor matter of detail, confusing his recollection as to a later meeting with an Aboriginal Cultural Heritage advisor... There was a ring of truth to Mr Voci's account'.[154] I reject that submission. Mr Voci prevaricated when responding to questions on this topic, in particular by saying that there must have been a meeting concerning Woodstock one year earlier, when plainly that was not the case. His evidence on this topic was false. There was no 'ring of truth' to his account of the 9 September 2015 meeting, or concerning a meeting with Ms Burch. The converse was the case. To refer to the Woodstock meeting when that meeting did not take place until one year later shows that Mr Voci did not misremember, he gave deliberately false evidence. The case that Mr Voci sought to advance so as to prove the alleged Variation Agreement was, as submitted on behalf of Ms Troiano, 'an invention'.

591 Mr Voci's evidence-in-chief concerning the 9 September 2015 meeting, like the 14 September 2016 email, included references to events that he said were discussed, when a number of those events only occurred after 9 September 2015.

592 I reject Mr Voci's evidence that he and Ms Troiano spoke about fire stair issues in Gardner Street at the 9 September 2015 meeting. That issue did not arise until well into 2016. It was the subject of an email from Ms Drakopoulos to Mr Voci, Ms Troiano and others on 28 July 2016. I do not accept Mr Voci's evidence that discussion concerning this issue took place in September 2015 and was later raised because it had not been fixed. That evidence is false.

593 Mr Voci denied discussion about Harvest Home Road and Ms Troiano's concern that she was shut out from the SOW document on the server relating to that project. While Mr Voci may be correct in saying he could not recall discussing Harvest Home Road or Ms Troiano discussing the files being hidden from her, I accept these matters, which are referred to in the email from Ms Troiano, were discussed.

594 Cross-examined about his 14 September 2016 draft email, Mr Voci said that his note 'meet three major projects', was intended to convey that Ms Troiano had not met the three project target in the first 12 months. As put to Mr Voci in cross-examination, the 12-month target was not an issue that either did or could have arisen by 9 September 2015. There remained two months before the 12 month anniversary of the 14 November 2014 agreement.

595 I do not accept as truthful Mr Voci's evidence that he told Ms Troiano that Bindts Road was not a Major Project or that she agreed it was never put into Major Projects. I do not believe Mr Voci had any recollection of such a discussion. I find that no such discussion took place. I accept Ms Troiano's evidence that her concerns about being excluded relating to Bindts Road were discussed and that Mr Voci gave the assurances of which she gave evidence.

596 Mr Voci's evidence that he said in relation to Bindts Road that 'We're almost at 1.5, close to 2 years into Bindts Road and you don't have a full feasibility for me. You don't have an application in council ...',[155] was also false. As at September 2015, Bindts Road was only ten months into the project. Mr Voci sought to explain away his reference to two and a half years as a case of his chronological timeline not being 'exactly spot on'.[156] His evidence-in-chief that such a discussion took place at the 9 September 2015 meeting was not true.

597 Mr Voci gave evidence that they discussed and agreed that if he could find someone to come on, that Ms Troiano would take a reduction in salary, but that he would keep her on a salary until he found someone and she could learn from them. He said it was agreed during the discussion that they were not going to open Major Projects and they were going to look for someone together. I reject that evidence as false. The evidence is inconsistent with the 24 August 2015 email in which Ms Troiano referred to a project manager with tertiary qualifications in civil engineering 'working alongside' a development manager. That email is inconsistent with Mr Voci's evidence that he told Ms Troiano at the 9 September 2015 meeting that she would 'work under' and learn from the person proposed.

598 I do not doubt that prior to 9 September 2015 various issues and problems may have arisen on projects in which Ms Troiano was involved. As the sequence of emails on 26 August 2015 reveal, Mr Voci may or may not have known all of the details concerning such problems. However, if the 9 September 2015 meeting was a meeting to discuss her performance with a view to dismissal, first, one would have expected such a meeting to have been initiated by Mr Voci and second, the emails exchanged before and after the meeting would have been very different in both tone and content. The sort of email exchange that might have been expected if Ms Troiano's performance prior to 9 September 2015 was as bad as Mr Voci sought to contend it was is exemplified by Mr Voci's email sent to Ms Troiano nine months later, on 29 June 2016. In that email, Mr Voci said, 'next time if I ask you to come into a meeting and you refuse, then pack your bags, consider this as a warning'.

599 In contrast to the June 2016 email, the emails on 9 September 2015 concerning Harvest Home Road and Gladstone Street did not portray any concerns on the part of Mr Voci concerning Ms Troiano's performance.

600 If there had been a meeting as contended for by Mr Voci and if there had been agreement on a variation as alleged, one would have expected very different email exchanges later that evening to those that took place at 9:47pm and 11:30pm. When Ms Troiano sent her email concerning Bindts Road at 5:25pm, a far greater urgency and degree of concern to move things along than was evident in that email would have been expected if Mr Voci's account of the meeting between them were true.

601 The same can be said in relation to the email exchange concerning Hunter Street at 5:29pm and 5:55pm on 9 September 2015. If the tearful conversation of which Mr Voci gave evidence and his threat to sack Ms Troiano for incompetence had been made only an hour or two earlier, his response to Ms Troiano's request for permission to lie to the Hunter Street client could have been expected to be very different; much more in the vein of the cross-examination of her about that email than the bland response that he sent. It is also unlikely that Ms Troiano would ask to lie so soon after, on Mr Voci's version, almost being sacked.

602 Mr Voci was critical in his witness statement of Ms Troiano providing project costings for major head works, including for water and sewerage, concerning the Bindts Road project. Whatever his complaints about that topic, they were not complaints current or present as at 9 September 2015. On 14 October 2015, Ms Troiano sent an email to Mr Voci reporting on the results of her request for an estimate for the feasibility for water, sewerage, drains and the like. On 15 October 2015, Ms Troiano obtained a fee proposal from JCA for preliminary development cost estimates for 130-150 Bindts Road which she passed on to Mr Voci with a recommendation that in order to complete a proper feasibility to a degree of accuracy that is needed, the $8,500 fee proposed by JCA was warranted. Mr Voci accepted in cross-examination, contrary to his earlier evidence, that there was no discussion about this topic at the September 2015 meeting. Similarly, the issue of appointing a quantity surveyor and obtaining a valuation for 130-150 Bindts Road from Charter Keck Cramer which Mr Voci said was discussed on 9 September 2015, was not a matter that arose until 2016.

603 Mr Voci was critical in his witness statement of Ms Troiano for failing to account for the cost of running the sewerage in the Bindts Road subdivision uphill and then down to where the proposed lots were located. Whether that criticism was valid or not, it was not a problem in September 2015. Ms Troiano sent the sewer plans to Mr Voci on 31 March 2016. The issue did not arise until that time.

604 I accept as put to Mr Voci in cross-examination that if he had wanted to dismiss Ms Troiano for lack of performance at the meeting of September 2015, based on his having previously dismissed a number of PSCA employees, including a town planner, a design engineer and Mr Dutta, he would have done so. That is what he did only two months later concerning Mr Raniolo. Mr Voci instructed Ms Troiano to 'fire' Mr Raniolo after two weeks only, because he had lied about his resume. Mr Raniolo was dismissed following a meeting with Whittlesea Council at which his participation and performance was entirely unsatisfactory.

605 I do not accept that as at 9 September 2015 Ms Troiano's performance was unsatisfactory. The 9 September 2015 meeting was not a meeting at which Ms Troiano's 'poor performance' was discussed. It was not a meeting at which Ms Troiano accepted Mr Voci's offer to continue on in her employment on the basis she would receive a demotion and would not receive any profit share or equity.

606 Contrary to the defendants' closing submissions, I do not agree that the evidence weighs in favour that it was agreed at that time that PSCA would not terminate Ms Troiano's employment then, but nor would it incorporate a new MPD entity in which she would have equity or profit share and that she would retain her salary pending PSCA identifying a suitable replacement. The email sent by Mr Voci to his solicitor one year later, on 14 September 2016, concluded under 'results' with, 'I will not be setting up a new company as major projects. Pay will drop to 100k plus super'. It was not until 18 July 2016 that there was any written communication of a drop in salary to $100,000 per annum.

607 I reject the allegation in the Defence that at the meeting on 9 September 2015 or in the discussions that Mr Voci says followed, there was discussion, let alone agreement, that PSCA would not provide any profit share or equity to Ms Troiano in respect of the MPD or any other part of PSCA. The email sent by Ms Troiano prior to the meeting does not mention equity or profit share, and nor for that matter does the email that Mr Voci sent to his then solicitor one year later mention that topic. If there had been a serious discussion of that topic at the meeting, irrespective of the scope of the subject matter of the 'total of 25% equity and 25% profit share' and if such a fundamental variation had been agreed objectively, one would have expected that either or both Mr Voci and Ms Troiano would have referred to that fact in emails exchanged between them either later that day or within the next few days. I reject Mr Voci's evidence that the topic was discussed.

608 It is correct as submitted on behalf the defendants that after September 2015 Ms Troiano did not ever assert that she had any right to equity or profit share until she made such a claim on 16 September 2016. However, just as Ms Troiano did not assert an entitlement to equity or profit share in writing between September 2015 and September 2016, she had not previously done so between November 2014 and September 2015.

609 Mr Voci said there were another two meetings between Ms Troiano and him over the next couple of days; not formal meetings - short meetings. That is, in contrast to the particulars of the Variation Agreement in the Defence, which refer to those two meetings being of around one hour each in duration. I do not accept that any such meetings took place.

610 Mr Voci said by the time of the next two meetings, he and Ms Troiano had discussed how to move forward; so they discussed things such as Mr Voci teaching Ms Troiano how to do feasibilities on the PSCA model (because at this time she had not learned to do them), how to recruit someone to come on board and her handling of the projects, the other smaller projects. I do not accept the truth of that evidence. At 1:45pm on 9 September 2015, the very day of the meeting in contest, Mr Voci had asked Ms Troiano to 'run some numbers' on the property at Gladstone Street, South Melbourne. Why make that request of a person not competent to do the work?

611 I find that no Variation Agreement as alleged was ever made. The assertion of such a variation is an invention by Mr Voci.

612 In the alternative to the Variation Agreement, the Defence alleges that if there was no Variation Agreement arrived at around 9 September 2015, that Ms Troiano is estopped from denying the Variation Agreement.

613 Two different estoppels are relied on in the alternative. First, it is alleged that a conventional estoppel arose between Ms Troiano, PSCA and Mr Voci to the effect of the Variation Agreement, and that between 9 September 2015 and September 2016 the parties conducted themselves on the basis of an underlying assumption of fact and law that the Variation Agreement was agreed between them on or about 9 September 2015.

614 In the alternative, it was alleged that Ms Troiano's expression of agreement and/or her silence and failure to dissent from the matters alleged by them to be the subject of the Variation Agreement after 9 September 2015, gave rise to a promissory estoppel on her part to the effect that she agreed to the terms alleged in the Variation Agreement. In particular, the defendants alleged that Ms Troiano is estopped from not agreeing that PSCA would not incorporate or establish the MPD as a consequence of her failure to bring forward potential clients and as a consequence of her failure to develop and bring forward a business proposal for the MPD. Further, that she is estopped from denying an agreement that PSCA would not provide any profit share or equity to her in respect of the MPD or any other part of PSCA.

615 The particulars of the promissory estoppel alleged include that Ms Troiano assisted Mr Voci in interviewing and employing Mr Raniolo as 'Development Director' to act as her superior on about 5 November 2015, and after he proved unsuitable as Development Director, she further assisted Mr Voci in engaging a recruitment consultant to find another development director, Mr Philips who was ultimately employed in that role on 5 September 2016.

616 It is further alleged that Mr Voci and PSCA acted to their detriment on the convention or promise, as Ms Troiano knew or intended, by continuing in the arrangements with her under the True Agreement as modified by the Variation Agreement and in not seeking to exercise rights under the True Agreement including termination rights contained in clause 16 of the True Agreement.

617 Before turning to the facts relating to the period after 9 September 2015, it is convenient to briefly refer to the principles that apply in the case of estoppel by convention and promissory estoppel. They are not in contest.

618 The elements of estoppel by convention identified in Sze Tu v Lowe[157] and applied in Victoria in Bannon v Nauru Phosphate Royalties Trust[158] are as follows:

(1) the plaintiff has adopted an assumption as to the terms of its legal relationship with the defendant;

(2) the defendant has adopted the same assumption;

(3) both parties have conducted their relationship on the basis of that mutual assumption;

(4) each party knows or intends that the other will act on that basis; and

(5) departure from the assumption will cause detriment to one of them.

619 The elements of promissory estoppel identified in Waltons Stores (Interstate) Ltd v Maher[159] are as follows:

(1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship;

(2) the defendant has induced the plaintiff to adopt that assumption or expectation;

(3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation;

(4) the defendant knew or intended him to do so;

(5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and

(6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise.

620 From around 9 September 2015 to May 2016, nothing changed in terms of Ms Troiano's role, her remuneration, or in the nature of Mr Voci's dealings with her. In the meantime, Bindts Road and Donnybrook projects continued and additional 'Major Projects' began.

621 On 22 September 2015 the River Hills companies numbered 2, 3, 4, 5 and 6 were incorporated.

622 On 24 September 2015, Ms Troiano gave instructions to Danaher Legal for the contracts relating to the purchase of 40, 60, 90 and 100 Bindts Road. The letter to Danaher Legal, copied to Mr Voci and Mr Rapita, said 'we require legal representation in the acquisition and dealing of a substantial property purchase'. Details of the River Hills purchasing entities were provided. There was no mention in the instructions of Ms Troiano holding or being entitled to a 25% equity and profit share.

623 Danaher Legal were engaged in place of Thomson Geer to prepare a contract of sale for lots on the River Hills Estate Stage 1. On 21 October 2015, Ms Troiano sent an email to Thomson Geer on behalf of PSCA in which she said that payment would not be made as the services for which the firm was engaged had not been provided and, in the event payment was pursued, PSCA was considering lodging a formal complaint with the Victorian Legal Services Board and Commissioner. There was much cross-examination of Ms Troiano on the premise that she, not Mr Voci, was the person who initiated the threat of a formal complaint against Thomson Geer. The premise of the cross-examination was shown to be incorrect when in re-examination, the complete sequence of communications regarding the complaint and the refusal to pay the Thomson Geer account was exposed. As the documents showed, it was Mr Voci who said not to pay the account and to threaten to make a complaint, not Ms Troiano.

624 The Donnybrook Road Trust Deed is dated 12 October 2015.

625 Ms Troiano gave evidence of work undertaken by her in relation to Donnybrook, including engaging with consultants, meeting with Yarra Valley Water and in October 2015 preparing a proposed development summary for the site which incorporated an updated development cost feasibility report.

626 Ms Troiano was not cross-examined about that feasibility which estimated profit from the development of approximately $18 million. The development summary which she prepared included a statement that PSCA was offering to provide a full development management service to deliver the completed project, including all permits and land subdivision construction works.

627 In closing submissions the defendants referred to and relied on this feasibility to show that Ms Troiano both knew and expected there would be significant project management fees charged by PSCA for both Donnybrook and Bindts Road. I accept that was the case.

628 The deposit of $25,000 under the Donnybrook contract was paid on 5 November 2015. The next payment due, $875,000, was paid on 30 November 2015. The Donnybrook contract became unconditional at that time. On 1 December 2015 Mr Voci nominated 1285 Donnybrook Road as the purchaser.

629 On 4 November 2015 there was an email exchange between Ms Troiano and Mr Voci, concerning Mr Raniolo. In that email exchange, which began with a reference to how good the 'office vibe' was, Mr Voci complimented Ms Troiano's recent performance, 'I have to say you have lifted your game I'm happy about that keep it up!!', to which Ms Troiano replied that she had been 'deep in reflection' about her 'way of Being', as they had discussed. The defendants sought to rely on this email exchange in support of the Variation Agreement. I do not agree. The email exchange refers back to the discussion both agreed took place on 9 September 2015 about how Ms Troiano was interacting with other personnel at PSCA.

630 Mr Raniolo commenced his employment on 5 November 2015. Mr Raniolo lasted about two weeks before, on Mr Voci's instructions, he was dismissed. Thereafter Ms Troiano was left in charge, not only of Bindts Road but also the Donnybrook project for another ten months before Mr Phillips was hired.

631 On 27 November 2015 Ms Troiano gave instructions to Mr Stenning that 'we hereby wish to confirm that we will be proceeding' with the purchase of Donnybrook. The email made no mention of any equity or profit share on her part in Donnybrook.

632 On 1 December 2015, Mr Voci forwarded a draft caveat and nomination form nominating 1285 Donnybrook Road as the purchaser. Ms Troiano, who saved the documents to the server as requested, raised no issue concerning her asserted 25% equity and profit share.

633 I accept the defendants' submission that the fact that Ms Troiano did not assert that she was entitled to a 25% interest in the Donnybrook land owning entity sits uncomfortably with her asserted common understanding that she and Mr Voci had a joint venture and that pursuant to that joint venture she had a 25% interest in Donnybrook.

634 Ms Troiano contended that in December 2015, heads of agreement were entered into with the owners of 40 and 60 Bindts Road. On 17 December 2015 an email was sent enclosing heads of agreement for 40-60 Bindts Road. The enclosed heads of agreement were not signed. There is not sufficient evidence to conclude that heads of agreement were signed in December 2015 concerning 40-60 Bindts Road.

635 1285 Donnybrook Road and PSCA signed an undated SOW Agreement relating to Donnybrook. It seems likely the SOW agreement was signed in late 2015. The SOW Agreement referred to a subdivision of approximately 486 lots for a total fee of $850,000. On 17 December 2015 Ms Troiano emailed an updated development plan to Mr Voci and Mr Rapita for Donnybrook which revised the number of lots to 486.

636 One topic explored at length in cross-examination of Ms Troiano concerned the process by which Ms Troiano went about obtaining a price for the construction of roads for the Bindts Road subdivision. This cross-examination was part of a concerted attack on Ms Troiano's competence. The attack concerning this issue was not soundly based.

637 On 26 November 2015, Ms Troiano met with Mr Culliver of Georgiou Group. On 13 April 2016 an estimate of $35,000 - $40,000 per lot was provided by Mr Culliver. On 10 July 2016, Mr Pizzano from Charter Keck Cramer provided a report which referred to costs of $70,140 per lot. In his witness statement, Mr Voci was very critical of Ms Troiano for the disparity. However, as emerged in cross-examination, the reason for the disparity was that the content of work estimated by Georgiou Group and the content of the work estimated by Charter Keck Cramer did not coincide. The $70,000 figure arrived at by Charter Keck Cramer included the component the subject of the Georgiou Group estimate, but added fees and charges of $23,807 per lot and professional fees of $3,730 per lot for a total of $70,140.

638 The criticisms of Ms Troiano and the premise for those criticisms concerning the Bindts Road subdivisional costs were ill-founded. There was no material difference between what Georgiou Group had estimated and what Mr Pizzano reported upon when the same subject matter, excluding fees, was compared. Mr Voci said that if Ms Troiano had experience in undertaking such developments, she would have realised that the Georgiou Group quote was 'way too low'.[160] His criticism of Ms Troiano in this respect was both unjustified and reflective of a degree of animus toward Ms Troiano.

639 There were many examples of detailed cross-examination of Ms Troiano so as to seek to reflect adversely on her credibility as a witness and so as to expose alleged flaws in her performance of her Senior Development Manager role from late 2015. While there were some deficiencies from time to time in her performance, I do not accept that those deficiencies warranted the calculated attack on Ms Troiano's performance that took place from May 2016.

640 From January 2016 to May 2016, Ms Troiano continued in her role at PSCA without any particular issues arising. In the meantime, the Bindts Road and Donnybrook projects continued, but Ms Troiano did not assert a 25% equity and profit share in either project in any communications during that time. The evidence reveals that while the relationship between Ms Troiano and Mr Voci remained positive until April 2016, it deteriorated in around May 2016.

641 On 7 January 2016 Ms Troiano sent her 'consultants list' to Ms Sainato for the purposes of preparation of a coordinated list of consultants being used with PSCA. The list sent by Ms Troiano did not include Mr Liddiard. Ms Troiano said she did not think she omitted reference to Mr Liddiard on purpose. I do not accept the truth of that evidence. By early 2016 there had been a number of issues involving Mr Liddiard's work. I find that is the reason that Ms Troiano omitted him from the list.

642 As detailed in her witness statement, in the early part of 2016 Ms Troiano was engaged in various activities relating to Donnybrook, including meeting with representatives of the adjoining owner.

643 On 8 January 2016 the last remaining lot of the 65 lots comprising the River Hills stages 1 and 2 needed to fund payments under the Bindts Road contracts was sold.

644 In cross-examination Mr Pezzi, the investor in 4 Gardner Street, Richmond, accepted that as at 15 February 2016, he had a 'good estimation' of Ms Troiano's abilities.[161] On that day, he sent an email to her saying he would 'leave it in your teams capable hands'.

645 At trial, Ms Drakopoulos and Mr Voci were both critical of Ms Troiano's performance concerning Hunter Street and other projects in the early part of 2016. Ms Drakopoulos was taken to an email dated 16 February 2016 in which Mr Voci congratulated Ms Troiano for 'saving the [Hunter Street] project', 'I'll take my hat off where its deserved and my hat is [off] for you Rita, well done on not only saving the project but making it a showcase for PSCA[']s future'. Ms Drakopoulos said she would not have agreed with this sentiment because planning permission was not obtained until later. It was put to Ms Drakopoulos that Mr Voci had given evidence that Ms Troiano did 'some things really well'. Ms Drakopoulos' response, 'I can't recall any times that I was appreciative of the work that she undertook with me'.[162] That response was contradicted by emails which were sent by Ms Drakopoulos herself. By way of example, on 24 March 2016, Ms Drakopoulos sent an email to Ms Troiano concerning 8 Hunter Street in which she wrote, 'You are a great support'.

646 On 8 April 2016 Ms Troiano forwarded an email to Mr Voci and Mr Basile enclosing the Bindts Road funding submission (in draft) for Stage 1 works at 130-150 Bindts Road, for submission to external financiers. It described Mr Voci as the Sole Director Shareholder of River Hills Estate Pty Ltd. The Project Consultants/Contractors List section identified PSCA as the Project Manager, Rita Moore as Senior Development Manager. The submission did not refer to or describe Ms Troiano as a person entitled to equity or profit share. If Ms Troiano believed at this time that she had a 25% equity interest in 130-150 Bindts Road, she would have been expected to say so. Indicative of what I find to be the state of their relationship at that time, Mr Voci replied to the email enclosure: 'Rita well done, good foundation to go on with let's get together and fill in some gaps'.

647 The 'vision' section of the funding submission said that 'PSCA will deliver a residential subdivision project to be known as River Hills Estate. PSCA is responsible for the design concept and related permit approvals and will complete all required roads and infrastructure works'. Ms Troiano was cross-examined about this description of PSCA's role. It was put to her that it would be PSCA, not the MPD of PSCA who would manage the development and that the intention as at April 2016 was that PSCA would have the role in the project described in the submission. Ms Troiano disagreed that was the case; she said the intention was that she would be performing that work. I accept that to be the case. It was Ms Troiano who was centrally involved in the pursuit of the Bindts Road project and she alone was the MPD. It matters not that the draft funding submissions did not expressly say so.

648 On 12 April 2016 Ms Troiano sent an email to Mr Stenning and others with a meeting agenda, including unit trust considerations and set up, company and personal tax returns for 'Ross and Entities', loan guarantors for the acquisition and related trusts/guarantees. In that email and in later dealings concerning Bindts Road, it was never suggested by Ms Troiano, and nor was it canvassed in communications between any of the relevant parties, that she would be a guarantor of any of the financial obligations concerning Bindts Road.

649 The meeting to which Ms Troiano's email to Mr Stenning referred was held on 15 April 2016. It was held to discuss the trust structure for Bindts Road. Ms Troiano accepted that she was the person who drove the establishment of that meeting. Minutes of the meeting attended by Mr Voci, Mr Stenning, Mr Cattapan, Ms Troiano and Mr Basile were taken by Mr Basile. It was not suggested that the minutes were not an accurate account of what was discussed. The minutes include details of proposed corporate and unit trust structures and diagrammatic representations of those structures. Ms Troiano said she could not recall much about the meeting, including whether she was present for all or only part of the meeting, that her recollection was 'hazy'.[163]

650 References are made in the 15 April 2016 minutes to Mr Voci and to his family. There is no mention of Ms Troiano as the holder of any equity interest or entitlement to profit share. Cross-examined about the shareholding in the River Hills companies, as Ms Troiano agreed, there is no document that shows any request made by her of Mr Voci to either incorporate those companies for her benefit under the 14 November 2014 agreement or for her to be issued with any shares in River Hills Estate or in River Hills Estate No 2.

651 On 18 April 2016 Ms Troiano completed a personal statement of financial position of herself and her husband for the ANZ bank. When listing her assets and those of her husband, no reference was made to an equity or profit share in Bindts Road or Donnybrook. In final address the defendants submitted the failure to do so was consistent with Ms Troiano knowing that after her discussion with Mr Voci in September 2015 there was to be no equity issued in anything. In light of my earlier findings about what was discussed in September 2015, I do not agree with that submission. However, the failure to mention an equity and profit share in Bindts Road and Donnybrook is not consistent with the common assumption that Ms Troiano held such an interest from November 2014.

652 Ms Troiano said that in early 2016 some work problems were causing problems at home. On 21 April 2016 she sent Mr Voci an email saying she was 'having a hard time still... Needed to go home... Might need the rest of the week off'. Mr Voci's response by return email was sympathetic to her circumstances. Cross-examined about this exchange and whether she considered Mr Voci her boss, Ms Troiano said she did not consider him her boss, 'I considered him my partner, my equal'.[164] I do not accept the truth of that description of her relationship with Mr Voci. It was evidence given by Ms Troiano in attempt to bolster her case as a 25% equity participant. It was not convincing.

653 Ms Troiano alleged that PSCA's conduct in insisting from July 2016 that she agree to a demotion, a substantial (21%) reduction in salary, a far more substantial reduction in overall remuneration and harsher termination provisions, coupled with a written statement that PSCA's position is 'final' and a payment of salary at the proposed reduced rate, constituted a repudiation of her employment contract.

654 In response the defendants submitted that PSCA did not repudiate the 14 November 2014 agreement by providing Ms Troiano with a new employment agreement because the proposed terms in the proposed new employment agreement reflected the agreed Variation Agreement made on or about 9 September 2015. The defendants contended that it was Ms Troiano who wrongfully repudiated the True Agreement and that PSCA accepted that repudiation.

655 The Defence alleged that from at least July to September 2016 Ms Troiano acted wrongfully and in breach of the True Agreement. Further, that in mid July 2016 Ms Troiano requested a 'finders fee of only: $7k' in relation to a Donvale property, a request alleged to contradict her claim to be entitled to equity and profit.

656 There is no real controversy about the applicable principles.

657 Ms Troiano submitted that to support a finding of repudiation there must be conduct, verbal or otherwise, which conveys to the innocent party the defaulting party's inability, or unwillingness, to perform the contract, or an intention to perform it only in a manner substantially inconsistent with that party's obligations.[165] Further, that repudiation is a serious matter which is not to be lightly inferred.[166]

658 Dealing specifically with contracts of employment it was submitted by Ms Troiano that remuneration is central to an employment contract and '[in] reality it is difficult to exaggerate the crucial importance of pay in any contract of employment'.[167] Thus if an employer unilaterally reduces remuneration or threatens to do so that is almost always a repudiation of the contract of employment.[168]

659 Ms Troiano further submitted that where demotion is not expressly reserved as a contractual right, and where it does not simply constitute an alteration of the duties of the employee contemplated by the contract, so as to fall within the scope of the employer's managerial prerogative, then in the absence of a serious breach of the contract by the employee, demotion will be a repudiation of the contract by the employer.[169]

660 The defendants did not quibble with the accuracy of these statements of principle. They submitted that for repudiation to occur, it requires that a party indicate an absence of readiness and willingness to perform a contract.[170]

661 As might be expected, the real contest relating to repudiation turned on the facts.

662 On 4 May 2016, doubts the Quarry Hills PSP would go ahead were put beyond substantive doubt with the finalisation of the Planning Panels Victoria report, which Ms Troiano was advised 'looks pretty good'. A few days later, on 7 May 2016, contracts of sale were signed by the River Hills companies for the purchase of 40, 60, 90, and 100 Bindts Road.

663 Ms Troiano contended that from the time the Quarry Hills Amendment report was finalised, Mr Voci began to frequently, and, without justification, criticise her performance. There is substance to that complaint and Ms Troiano is correct about the timing.

664 Mr Voci was cross-examined about emails which Ms Troiano submitted were sent by him with a view to exerting pressure on her to resign.

665 The first such email was sent at 7:45am on 9 May 2016. It required Ms Troiano to provide all costs for Craig Street to Mr Voci by lunch time, noting that it was 'very urgent'. A second email from Mr Voci on the same day asked whether a land area and lot yield summary schedule relating to Bindts Road dated 28 January 2016 was still current, directing Ms Troiano to add another tab on how much was paid for each lot and requiring that information by the end of 'trade today'. Two days later, on Wednesday, 11 May 2016, another email was sent by Mr Voci to Ms Troiano requiring action on landscape plans by the end of the week, 'Get onto dead lines !!!!'.

666 On 11 May 2016 a notice 'from the Director Ross Voci' was sent to all staff, including Ms Troiano, by Ms Sainato. It said that all staff must complete allocated tasks and deliver their deadlines on time. Any allocated tasks that are not completed and reported to 'your managers' will warrant an automatic warning. The email referred to new processes and procedures being implemented over the coming weeks to ensure that 'we are keeping up with Ross's company expectations'.

667 On 16 May 2016, Mr Voci sent an email to Ms Troiano telling her that an update was needed 'on al[l] the jobs'. Ms Troiano provided a response by midday the following day, 17 May 2016, listing her jobs with a brief update on each one. The list comprised 12 Craig Street, 18 Craig Street, Bailey Street, Gardner Street, Hunter Street, Yarra Street, Harvest Home Road, together with Bindts Road and Donnybrook. Later that night, Mr Voci responded in what was clearly an aggressive tone in relation to a number of those projects and their status. Ms Troiano replied to Mr Voci's highlighted comments on 18 May 2016. It is to be noted that although Mr Voci was critical in his responses, including concerning Bindts Road, he did not say that Bindts Road, or Donnybrook, was not one of Ms Troiano's or the MPD's 'jobs'.

668 Mr Voci said that during May 2016 he received emails from Mr Basile explaining it was very difficult to raise funds for Donnybrook through the sale of units and that he began to doubt the viability of the project raising funds that way.[171] I do not accept that evidence. If Mr Voci was concerned about his inability to raise funds at that time, his own personal actions belied such concern. On 18 April 2016 Mr Voci purchased a Maserati Ghibli, borrowing $104,000 to do so. On 9 May 2016, settlement took place of the purchase of a holiday house near Rosebud, at a cost of $790,000.

669 The email pressure exerted by Mr Voci on Ms Troiano continued in June 2016. On 16 June 2016 there was an email exchange between Mr Voci, Ms Sainato and Ms Troiano concerning 12 and 18 Craig Street. It began with Mr Voci asking Ms Troiano at 1:16pm to get 'the folder' ready on the server for 12 Craig Street with all relevant information in each folder. A list of all the consultants used and their contact details on a spreadsheet was required. The email said that information 'needs to be handed' to Ms Sainato by 4:00pm the following day for 18 Craig Street.

670 When Ms Troiano responded at 2:44pm on Friday 17 June 2016 saying she needed 'a bit more time to do this task - early next week please', Mr Voci responded at 3:08pm saying this should already be filed for 12 Craig Street, 'I need to meet deadlines that sweat we are in the shit with investors coz [sic] we need more time. I need it today'. Ms Troiano responded at 5:27pm saying she had now finished reorganising everything filed on the server into subfolders. She said that she next wanted to copy and move 1,388 emails from her Outlook/iCloud Craig Street folder. Her email referred to the location of the list of project consultants for 12 Craig Street on the server. Mr Voci replied at 9:05pm that night, saying that he knew she was having issues at home and was sympathetic but that she was not 'focused on the job, one thing I'm finding is that you are texting on the phone more than you are working... This was a deadline it needs to be met or things will suffer, all the jobs are behind that you are managing, their is the job its self [sic] that is out of your control and then their is you who has control, but are not focused. I am letting you know that I'm in a compromised position as you are about to embark on a large workload and respectfully I don't think you're up to the task with what is going on, maybe it's time for a break for a few months...'.

671 The following week there were further criticisms of Ms Troiano's filing system by Mr Voci and Ms Sainato; to which Ms Troiano responded that she thought she was 'managing my department'.

672 Ms Drakopoulos was cross-examined about an email she sent to Mr Voci and Ms Sainato on 20 June 2016, in which she was critical of Ms Troiano and, amongst other things, accused Ms Troiano of not having a filing system. The email was sent at 11:18am that day. That email was expressly relied on by the defendants as revealing examples of performance failures by Ms Troiano. Earlier, at 10:15am on the same day, Ms Troiano had sent an email to Mr Voci and Ms Sainato concerning the issue of complaints about her filing system and asserting that her filing system was appropriate.

673 I do not accept Ms Drakopoulos' evidence that the email which she sent on 20 June 2016 was unprompted. It was instead a deliberate attack on Ms Troiano. Re-examined about the email, Ms Drakopoulos said that she sent it because, based on her experience, for example at 4 Gardner Street, there may be many, many files and that she was 'concerned' about Ms Troiano's filing system.[172] I do not accept the veracity of that evidence. It is plain both from her communications around this time and from observing Ms Drakopoulos giving evidence that she bore a degree of ill-will towards Ms Troiano.

674 As an example of Ms Drakopoulos' attitude to Ms Troiano, she did not accept, concerning Gardner Street, that even though Mr Voci had handed responsibility for that project to Ms Sainato from 8 June 2016, that thereafter that project became Ms Sainato's project and responsibility. Ms Drakopoulos said, 'The project manager always has responsibility for a project'.[173] She argued that while 'Imma was the client contact for the project',[174] Ms Troiano's responsibilities continued and difficulties that arose thereafter with the project, were attributable to her.

675 On 8 June 2016, the day Gardner Street was handed to Ms Sainato, Mr Voci described the work on that project by Ms Troiano, as 'well done good work'. The investor in the project, Mr Pezzi, agreed with that assessment. That evidence provides no support for criticism of Ms Troiano's involvement in the Gardner Street project. It is directly to the contrary.

676 On 27 June 2016 there was an email exchange between Mr Voci and Ms Troiano concerning potential delays in settlement of 15 Yarra Street, Richmond due to problems with the internet and telephone. Ms Troiano suggested settling the purchase without those connections and, if necessary, withholding an amount at settlement to cover those items. Mr Voci responded by saying that if Ms Troiano could not run a few projects on her own 'let me know I'll get someone in that can'. His email asserted that her workload was low in comparison to that of Ms Sainato and Mr Cardamone.

677 The emails exerting pressure in relation to Yarra Street occurred after Mr Voci had removed that project from Ms Troiano's responsibility and handed it to Ms Sainato. When cross-examined, Ms Troiano sought to attribute the blame for delays to others at PSCA. There was some foundation for her response. The removal of Ms Troiano having earlier occurred, on 26 to 29 June 2016, there were a series of emails where Ms Sainato 'handed back' issues concerning that project to Ms Troiano. Those issues included coordinating registration of titles and finalising communications, the NBN and telecom.

678 On 29 June 2016, Mr Voci sent a further email to Ms Troiano concerning the NBN connection at Yarra Street. The email was very critical of Ms Troiano, it was expressed in strong terms and it criticised the amount of time taken by Ms Troiano dealing with the Yarra Street communications issue. It concluded by saying:

Further the next time if I ask you to come into a meeting and you refuse, then pack your bags, consider this as a warning and I don't want to here [sic] you had to prepare for a meeting two hours later with Cicero coz [sic] that's bullshit.

679 Ms Troiano said that on receipt of the email she felt targeted. She replied:

Let's talk about this because you've got this all wrong... So let's get the facts right before I'm issued with an unfair warning. What's going on Ross? Are you looking for something...'.

680 Responding to the 29 June email, Ms Troiano said she had not been invited into the meeting; she was not given notice, she genuinely had to catch up on other matters; there were no issues between her and Ms Sainato and that Mr Voci should get his facts right before issuing a warning letter.

681 Cross-examined about this email Mr Voci accepted that it threatened Ms Troiano with her dismissal. He said there were two reasons to do so at the time; the issue concerning the telephone line at 15 Yarra Street and Ms Troiano's failure, so regarded by him, to attend a meeting. Separately, Mr Voci referred to the 29 June 2016 email exchange as 'all fluff'.[175] I do not accept his evidence about that topic as accurate or of assistance.

682 On 29 June 2016 Mr Voci sent an email to Ms Troiano that was very critical of her work on Harvest Home Road; in particular, for failing to contain costs of civil engineering works. 'You lost money here!! this is because again no direction or budgets these guys [JCA] have ripped us off as well, ... Do not engages [sic] them for the civil at Donnybrook... DO THIS TOMORROW'.

683 While Mr Voci denied sending the May and June 2016 emails and other emails in a similar vein in order to make life unpleasant for Ms Troiano and to put pressure on her to resign, I do not accept that evidence. The emails were sent in order to put pressure on Ms Troiano to resign, or otherwise so as to establish a documentary trail that Mr Voci might be able to rely on to justify her dismissal. The pressure Mr Voci was exerting on Ms Troiano in May and June 2016 followed the execution of the remaining contracts for the purchase of land in Bindts Road. It coincided with the anticipated finalisation of the PSP that applied to Donnybrook.

684 On 24 June 2016, the Metropolitan Planning Authority advised Mr Voci and Ms Troiano that the panel report relating to Donnybrook was expected in six to eight weeks' time.

685 The financial accounts for PSCA for the year ended 30 June 2016 were prepared by Mr Cattapan's firm and were signed by Mr Voci on 4 May 2017. According to the accounts, gross income of PSCA for the 2016 financial year was $6,702,946. After allowing for expenses, including salaries and wages of $1,311,248, profit for the financial year was $3,424,396. The accounts record the distribution of profit in that amount to the Voci Family Trust.

686 On 1 July 2016 Ms Wang sent an email titled 'Introduction of new employment contracts at PSCA' to all staff, including Ms Troiano, Mr Basile, Mr Rapita and others. The email said that every staff member would be provided with a new (updated) Employment Contract which would be backdated as 1 July 2016 and would contain PSCA's new company policies.

687 On 4 July 2016, the SOW for 18 Craig Street, Keilor East, providing for 24 lots and with SOW fees of $517,200, was signed. Ms Troiano was involved in the agreement pursuant to which the property was purchased by a PSCA client. From around 16 June 2016 Mr Voci directed that this file be managed by Ms Sainato. In the defendants' closing submissions, although it was contended that in no circumstances should the Court find Ms Troiano entitled to profit derived from the Hunter Street, Gardner Street and Yarra Street projects, no such submission was made in respect of 18 Craig Street.

688 On 15 July 2016 Ms Troiano booked an overseas holiday for her family with a 20 September 2016 departure date. Ms Troiano was cross-examined about this holiday in the context of her resignation from PSCA. It was put to her that her evidence about an overseas holiday was false. This was another misplaced attack on Ms Troiano. Her evidence was not false; the ticket produced in evidence in response to a call for production on behalf of the defendants put the issue beyond doubt.

689 On 15 July 2016, Ms Troiano sent an email to Mr Voci enclosing a link to a property at Donvale. This email and the exchange that followed achieved prominence at trial as they had in the Defence.

690 Ms Troiano described the Donvale property as suitable for a locator development and that she would be happy to accept a 'small' finders fee of only: $7K??? ☺ ☺'. Mr Voci responded by saying if he paid a $7,000 finders fee, Ms Troiano would be paid more than Mr Basile and that he did not know how Ms Troiano thought finding the property was worth $7,000 when she was 'doing this in work time'. Further, Mr Voci stated that such deals enabled PSCA to pay wages and expenses, and he has had to cut costs of the business for the new financial year, one of which was wages.

691 The next day, 16 July 2016, Ms Troiano sent another email to Mr Voci. She said the reference to $7,000 was 'a light-hearted amount I put out there'. Her email continued:

You know the principle about "ask and you shall receive". However I also note that our original agreement and your word to me about percentage share etc which formed the basis of our existing agreement and most of all trust between us has not been honoured to date, which formed the reason I joined PSCA and put my faith and time in it. ... I look forward to discussing my work contract with you and i value of my experience, which I've paid dearly for in time and personal money over 20 years and I offer that at the table at PSCA.

692 This was the first written reference to 'percentage share' in communications between Ms Troiano and Mr Voci since 14 November 2014. The email contained a clear assertion that the original agreement had not been honoured. It did not identify with any precision the 'percentage share' that had not been delivered. It did not say whether what had not been delivered was a percentage share in Bindts Road, in Donnybrook, in PSCA, or in all or a combination of the above.

693 Mr Voci responded by email later on 16 July 2016 including as follows:

I am dissipated [sic] on you taking this path we had clear discussions about the % share and we agreed in November 2014 over three discussions in so many days in my office that I was not going to open a new company or profit share due to not meeting your obligations under the agreement in the first 12 months and this of course has not happened nor will it, further we agreed that you did not have the experience. On large lot subdivisions and that I had purchased the large project not a client you have 20 years in apartment and development industry this is your strength yet this did not eventuate, you keep stating that you are underpaid for what you are doing and as I said many times you do not have the experience and have not managed large lot subdivisions hence your remuneration is way over your experience in this field and you are learning as you go. In fact as you know I am seeking an experienced development manager to run the projects as you also are aware I'm not comfortable with your level of experience. You provide on these types of projects I'v [sic] had this discussion with you many times, it's your choice to stay on at learn from the new manager who will have delivered many large scale projects.

694 When Mr Voci gave evidence-in-chief, he said that when his 16 July 2016 email referred to November 2014, he meant to say September 2015. Given the reference to three conversations in November 2014 and the alleged Variation Agreement, it is unsurprising that Mr Voci was cross-examined about this email. It was put to him that such evidence was false, to which he responded that September 2015 'fits in line with the September 9 discussions ...'.[176]

695 I do not accept Mr Voci's explanation that he meant to refer, in his 16 July 2016 email, to three discussions in September 2015. The email referred to not meeting obligations in the first 12 months. As at September 2015, the first 12 months had not yet come to pass. Mr Voci's evidence when cross-examined about this email was not at all convincing.

696 The Defence sought to rely on Ms Troiano's emails of 15 and 16 July 2016 in support of the conventional estoppel and promissory estoppel pleas, and as an admission that she was not entitled to an equity and profit share. That the email contained such an admission was disputed by Ms Troiano, who contended that on a plain reading of the email, the opposite was the case.

697 In evidence in chief Mr Voci said he could not recall having a discussion with Ms Troiano shortly after she sent her 15 July 2016 email. When cross-examined, in a series of answers that were non-responsive, Mr Voci said, amongst other things, that he read the email from Ms Troiano and thought she was saying she was owed some fees. He said she was still asking for management fees, but he was not bound to pay any such fees because they had already agreed they were not going to open up a MPD.

698 The email requesting a finders fee sent with two 'smiley faces' should be viewed in light of the 16 July 2016 follow-up email, as a light-hearted, 'if you do not ask, you will not receive', request for $7,000. Ms Troiano had an entitlement to equity and profit share under the 14 November 2014 agreement; that entitlement had crystallised but she had received nothing. I do not consider either of Ms Troiano's emails support the defendants' estoppel plea. Although very general in its terms, Ms Troiano's 16 July 2016 email asserted failure by Mr Voci to comply with his and PSCA's obligations.

699 On 18 July 2016, Mr Voci arranged for Ms Troiano to be given a new form of contract which, if agreed to by her, was a demotion. Her job title was to be changed from Senior Development Manager to Development Manager, reporting to a Senior Development Manager. Employment, if agreed to, was to be at a reduced base salary of, $110,000 instead of $140,000, and with no reference to equity or profit share.

700 While the provision of the proposed contract was part of a PSCA employee-wide rollout of new contracts, there was no evidence that any other employee was offered a contract at a reduced rate of pay or with the removal of substantial benefits contained within their existing contract. In cross-examination, Mr Voci said the provisions of the new contract were pursuant to the agreement made ten months earlier, on 9 September 2015 (the alleged Variation Agreement), that Ms Troiano was going to work under someone else who had greater experience than her and learn. That evidence was false.

701 I accept Ms Troiano's submission that having asserted her existing right to a percentage share, which, contrary to the 14 November 2014 agreement had not been paid, that she was deliberately targeted. The provision of the draft contract represented a continuation of the concerted pressure exerted upon Ms Troiano by Mr Voci in an endeavour to secure her resignation.

702 Ms Troiano said that after she was given the new draft contract, she said she was not signing it because there was no profit sharing there. She said that Mr Voci told her he was not paying her profit share and it was not changing. Mr Voci told her the contract was 'final'. In response, she said if she was to take a lower salary, maybe that would carry them and she could take a higher profit share in the end.[177] Mr Voci told her she needed to be prepared to take nothing. Ms Troiano said she sought legal advice but could not afford to fight Mr Voci.

703 I accept that Ms Troiano told Mr Voci and that she had an entitlement to profit share. She did have such an entitlement; it was an entitlement under the 14 November 2014 agreement.

704 During August 2016 Mr Voci sent Ms Troiano several emails insisting that she sign the new contract or leave.

705 On 8 August 2016 Mr Voci sent an email, copied to Ms Sainato: 'I have exhausted the possibility to not reducing your pay unfortunately this can't be done. The consort [sic] that has been provided to you is final...'. On 16 August 2016 Mr Voci sent an email saying that this month he had paid full wages but could not do so the following month and that the time had come to know where Ms Troiano stood with the new agreement: 'I'm hoping you can stay but I fully understand if you can't'. The push to get Ms Troiano to leave could hardly have been clearer.

706 On 21 August 2016 Ms Troiano contacted Vodafone with a request that the itemisation of her telephone invoice be turned off; invoices at that time directed to and paid by PSCA. From 22 to 24 August 2016 there were various communications between Ms Troiano and staff at PSCA including Mr Voci in which Ms Troiano asked to be removed from the PSCA telephone account with an increase in her wages by $50 per month to cover the cost of the telephone. At that time no such authorisation was provided.

707 On 29 August 2016, Mr Barrow, an IT consultant, received an email from Mr Voci saying that he needed to move the Ovation office into Ms Troiano's office later that week and enquiring about rewiring. Shortly afterwards, Mr Barrow attended to assist with IT aspects of the move. That involved moving the Ovation computers and connections into Ms Troiano's office and moving her connection out into the common area. A short time later, Mr Barrow had a conversation with Ms Sainato about an IT problem involving Ms Troiano. In a communication consistent with the pressure on Ms Troiano to resign, Ms Sainato told Mr Barrow, 'She won't be here long, so don't worry about it'.

708 On 30 August 2016 Mr Voci sent an email to Ms Troiano, with a subject line 'get all your folders ready co[s] Mark will be on them as of Monday'; a reference to Mark Phillips, from 5 September 2016 employed as 'Senior Development Manager', PSCA.

709 Ms Sainato provided a letter of offer of employment to Mr Phillips on 30 August 2016. When cross-examined, Mr Voci said that he could not afford to pay both Mr Phillips and Ms Troiano at the same time. That evidence was not reflective of the financial position of PSCA for the year ended 30 June 2016. It was also inconsistent with personal expenditure by Mr Voci at the time about which he was cross-examined.

710 In around November 2016 Mr Voci arranged to purchase a property at 11 Kent Avenue, Brighton for $4.675 million and entered into a building contract to build a house on that property for $4.1 million. In December 2016, Mr Voci purchased a Ferrari for approximately $220,000. On 20 May 2017 he purchased an Aston Martin DB11 for $495,000. Those facts relating to the purchase and development of property and the purchase of luxury motor vehicles are not consistent with the proposition that Mr Voci and the companies with which he was associated were in financial difficulty or under financial stress.

711 In an application for finance to the Bank of Melbourne in November 2016, Mr Voci referred to a salary paid by PSCA to him of $2,107,101. If PSCA was in a position to pay him such a salary, as seems plain from the 2016 PSCA financial accounts was the case, when Mr Voci told Ms Troiano in August 2016 that he could not afford to pay her a $140,000 salary when paying Mr Phillips as well; that evidence was, as put to Mr Voci, false. Although Mr Voci denied it was the case, I accept that by the time he employed Mr Phillips, he had already decided he wanted Ms Troiano out of PSCA.

712 Mr Phillips, a qualified civil engineer and holder of a builders' licence, began work at PSCA on 5 September 2016.

713 On 7 September 2016 Mr Voci contacted Vodafone and authorised the transfer of Ms Troiano's mobile phone number from the PSCA account to her name.

714 The mobile phone number was a number that Ms Troiano had brought with her to PSCA. It was not a number provided for her use in the course of her employment as contemplated by clause 24(a) of the 14 November 2014 agreement.

715 There was criticism by the defendants of Ms Troiano concerning her interaction with Vodafone and of the explanation concerning it in her later 16 September 2016 letter. Her actions occurred in the context of clause 17 of the 14 November 2014 agreement which required the return of any mobile telephone on termination of her employment and the letter from Mr Voci on 16 August 2016 that when the next month's pay was sent to her, it would not be her full wages. I do not consider criticisms by the defendants of Ms Troiano's conduct, or of her response concerning Vodafone in her 16 September 2016 letter, to be justified.

716 On 13 September 2016 at 4:41pm, Mr Barrow received a request from Ms Sainato to advise how to block remote access to the server from Ms Troiano's laptop. On 15 September 2016 at 9:07am, he received a request from Ms Sainato to discuss accessing Ms Troiano's emails. At 6:04pm on 15 September 2016, he received a request from Ms Wang to urgently redirect Ms Troiano's email to Mr Voci's address. Clearly the business relationship between Ms Troiano, PSCA and Mr Voci was on its last legs.

717 On 14 September 2016 Ms Troiano took sick leave. She gave evidence that she was both unwell and was soon to go on holidays. She had taken her laptop home. It contained a copy of every email that Ms Troiano had ever sent or received whilst at PSCA. It was not usual for Ms Troiano to take her laptop home. I do not accept her evidence that when she took the laptop home she was not aware that all of the emails that she had sent and received had been saved to the laptop. However, taking the laptop home did not constitute a breach of the 14 November 2014 agreement. The confidentiality obligations in clause 14 are directed to unauthorised use of confidential information. There is no evidence Ms Troiano used any of the emails on her laptop for an unauthorised purpose.

718 In the 14 September 2016 email to his then solicitor, relied on by Mr Voci in support of the September 2015 Variation Agreement, Mr Voci told his solicitor that he would not be setting up Major Projects. I accept, as put to Mr Voci in cross-examination, that as at September 2016 he was very concerned about having to give Ms Troiano an interest in the MPD. The two year anniversary at which point Ms Troiano would be entitled to 25% of profit and equity in the MPD was fast approaching. The email of 16 July 2016 from Ms Troiano had accused Mr Voci of not honouring his word about percentage share. It is correct as put to Mr Voci, despite his denial, that as at September 2016, there was a very large potential profit to be made on Bindts Road. The Charter Keck Cramer residential development feasibility for 130-150 Bindts Road prepared in June 2016 had assessed gross realisation proceeds at $93 million, developments costs of $36 million and the site value at $19.2 million.

719 On 15 September 2016 Ms Troiano was short paid, as if she had agreed to the new contract. She had not signed the new contract and nor had she agreed to its terms. On the same day she received a letter from Mr Voci accusing her of serious misconduct. The letter said that as a result, PSCA was considering terminating her employment. The letter sought an urgent response in relation to nine itemised matters. Those matters included that Ms Voci had attempted to transfer her company mobile telephone number from PSCA's business account into her own name, that on 14 September 2016 she had sent 11 work emails from her company email account to her personal email which contained PSCA intellectual property and confidential information, including information about clients and projects with which she had been involved through her employment at PSCA.

720 In cross-examination, Ms Troiano accepted that none of the 11 emails were forwarded to her personal email account for any legitimate PSCA work purpose. The emails concerned projects that Ms Troiano worked on and others that she did not work on. Ms Troiano described her copying of those emails as a 'lapse in judgement'.[178] There was no evidence Ms Troiano made any use of those emails.

721 The following day, Ms Troiano sent a letter 'vehemently' denying the allegations of misconduct and resigning from her position at PSCA. On 20 September 2016, PSCA sent her a letter accepting her resignation. On that same day Ms Troiano and her family departed for an overseas holiday.

722 Clause 14(d) of the 14 November 2014 agreement required return of company documents on termination. Ms Troiano did not return all of the PSCA documents until February 2017.

723 At the time Ms Troiano and Mr Voci parted ways in September 2016, there were further deposits yet to be paid under the Bindts Road contracts: on 2 May 2017 $887,760 for 40-100 Bindts Road and on 27 July $1,033,524 for 130-150 Bindts Road. In addition, the combined balance due under the 40-100 Bindts Road contracts, totalling $15,979,680, was due on 11 December 2018. The balance of $17,569,908 to be paid at settlement of the purchase from the Cvetanovskis was due on 27 July 2019.

724 Mr Voci said that by the end of 2016 as a consequence of the 'by-then potentially catastrophic financial situation I found myself in with Bindts Road, I made the decision to search for a buyer to acquire the whole project rather than look for head locator and small locator investors'.[179] I do not accept this explanation of Mr Voci's financial situation at that time as true. The evidence of Mr Voci's concerns about his financial position is inconsistent with the evidence of his financial position referred to earlier. If Mr Voci found himself in a 'potentially catastrophic financial situation', it is more likely that it was the result of his discretionary purchases and his entry into contracts relating to the Brighton property, rather than any concern relating to Bindts Road.

725 There is no evidence that any of the River Hills purchaser companies sought finance to complete any of the Bindts Road contracts beyond the funds obtained from the sales of the 65 lots. Instead, in early 2017 Mr Voci met with a real estate group to discuss options to dispose of the Bindts Road project. Mr Voci said that following discussions with Mr Noonan, by then an employee of PSCA, he had an understanding of the millions of dollars it would take to undertake the project and it would take years before the project would make a profit. Buyers were sought for the project, but until October 2017 there were no substantive offers.

726 On 27 October 2017 the River Hills companies entered into a heads of agreement with Dahua for the purchase of the Bindts Road properties for $80 million with a deposit of $25 million and payment of the balance over four years. There was a 21 day due diligence period. Mr Voci said that at that time the 'unit holders' were putting significant pressure on him for funds to be returned. He said the price was required to be reduced to $74 million (less stamp duty of around $2 million) in order to secure a commitment from Dahua.

727 It was Mr Noonan's evidence that, while Dahua was nominated as the purchaser on 23 November 2017, he and Mr Voci discussed selling the property some two to three months earlier. He said the reason for selling Bindts Road was a 'funding issue'.[180] Once he worked out the costs of Stages 1 and 2 of that project, it was more than could be funded. There was a shortfall in the order of around $5 million. He said there was no capacity to start Donnybrook, which needed funding of around $10 million, a case of money needing to be spent before money could be got back. I accept Mr Noonan's evidence as to those matters.

728 On 23 November 2017, Mr Voci and the River Hills purchaser companies entered the Dahua Nomination Agreement. The total consideration of $74 million, a nomination fee of $34,486,400 and an additional reimbursement amount of $4,930,488 was payable to the River Hills purchaser companies.

729 Mr Voci said that by October 2017 he had spent much of the year 'stressing about the Bindts Road project... I was having sleepless nights about the refund of the land lots and unit trust investors that were due to be paid'.[181] Cross-examined about his financial position at that time, Mr Voci, who it seems has a penchant for luxury motor vehicles, accepted that on 20 May 2017 he purchased an Aston Martin DB11 for $495,000, trading in a 2015 Bentley Continental, and on 23 August 2017 purchased a Bentley Continental for $580,000 with repayments of $7,000 a month. I do not accept as truthful Mr Voci's evidence about the level of financial stress and sleepless nights.

730 Mr Voci gave evidence that with the assistance of payments received from Dahua he successfully refunded all the purchasers of the 65 Bindts Road lots and redeemed all of the units held by all but two of the unit holders. He said the redemptions and refunds cost around $15 million.

731 At the same time that Mr Voci was dealing with Dahua concerning Bindts Road, further payments were falling due under the Donnybrook contract. The Donnybrook Woodstock PSP was gazetted in November 2017. On 28 November 2017, a further deposit was paid under the Donnybrook contract. Another $500,000 was due to be paid on 5 November 2018. That instalment was paid 14 days late, on 19 November 2018. The balance of $15.7 million was due to be paid in November 2019.

732 When opening the case, the defendants submitted that during 2017 and 2018 uncertainty developed in the property market, resulting in volatile property prices, falling land sales and a significant tightening of investment and lending conditions for property development. No expert evidence was led concerning any of those matters.

733 On 11 December 2018 Mr Voci received an offer from Artemis Hotel Group (Australia) Pty Ltd to take over the Donnybrook contract. Ms Troiano complained at trial about Mr Voci's failure to accept that offer. The offer was to pay $8.1 million to Mr Voci and required a novation of the contract with the vendors. Mr Voci said that the vendors would not agree to a novation. On 1 December 2018 the solicitor for the proposed purchaser advised that 'under normal circumstances our client is prepared to accept either a nomination agreement or a sub sale agreement from the prior purchaser. The concern, however is your client's condition to have $8.1 million released to him prior to the settlement. This exposes our client to an unacceptable risk when: your client is not the registered proprietor ...'. It appears the imposition of that condition was the reason the proposed transaction did not proceed.

734 Ms Troiano submitted that had Mr Voci been prepared to wait until settlement, he could have sold the Donnybrook project for $8.1 million. Assuming that proposition to be correct, the failure to do so does not of itself show a preferring of Mr Voci's interests to those of Ms Troiano.

735 On 20 December 2018, the parties to the 2017 Dahua Nomination Agreement entered a Deed of Variation, which reduced the nomination fee by $8,475,979 and brought forward the payment of the final instalment of $5,940,909.09 to 21 December 2018.

736 Ms Troiano alleged that entry into the Dahua Deed of Variation on 20 December 2018 represented entry by Mr Voci into an uncommercial and disadvantageous transaction and that by doing so, Mr Voci and the River Hills companies controlled by him preferred their own interests over the interests of Ms Troiano. The defendants denied those allegations which are relevant to Ms Troiano's claim for breach of fiduciary duty. Ms Troiano led no expert or other evidence in order to prove that the entry into the Dahua Nomination Agreement was uncommercial or disadvantageous.

737 Mr Voci gave evidence that the letter of demand on behalf of Ms Troiano dated 6 December 2018 had no bearing on his decision to enter into the Dahua Deed of Variation. I accept his evidence. The contemporaneous documents show that on 15 November 2018 Mr Voci received an email from Dahua apparently responding to an earlier request by him to vary the Dahua Nomination Agreement in relation to payment of $976,000 in stamp duty due on 11 December 2018. The proposal was for Dahua to pay that stamp duty, which it offered to do, but with a $1.4 million reduction in the $4 million instalment due in April 2021, with interest on the $976,000 at 18%.

738 Mr Voci's explanation for the Dahua Deed of Variation was that at the time, he had 'no other viable choice and I faced financial ruin, and loss of whatever interest I had in the Bindts Road project, if I was then otherwise unable to settle the purchases myself, as was in fact the case'.[182]

739 Mr Voci denied that his entry into the Dahua Nomination Agreement, and later the Deed of Variation, or that his entry into an agreement with Mr Sirianni and Mr Sfetsos concerning Donnybrook in December 2018 prior to settlement of the Donnybrook contract was motivated by any improper purpose, whether to defeat a claim by Ms Troiano, or otherwise.

740 In closing submissions Ms Troiano said that Mr Voci did not give any evidence of any reason for entering into the Dahua Deed of Variation, and that there seemed to have been no good commercial reason for his causing the River Hills companies to do so. The submission misses the point. The burden of demonstrating that the Dahua Deed of Variation was entered into by Mr Voci in circumstances where he preferred his own interests to those of Ms Troiano was Ms Troiano's burden. It was for Ms Troiano to adduce evidence in support of that case. She failed to do so.

741 The expert valuers agree that as at December 2018, the value of the Donnybrook property was $32,300,000. On 18 December 2018, the corporate structure for the purchase of Donnybrook fundamentally changed.

742 On 18 December 2018, Mr Voci entered into the '2018 Heads of Agreement'. Pursuant to the Heads of Agreement, he revoked the nomination of 1285 Donnybrook Road as the purchaser of Donnybrook and nominated LIVV 1285 in its place.

743 The 2018 Heads of Agreement provided that LIVV 1285 would appoint LIVV Developments (a company of which Mr Charlie Sirianni is the sole director and Yale Investments the sole shareholder), or a related party, as Development Manager to manage the Donnybrook development for a fee of 4% of the gross sale proceeds of each lot. LIVV Developments was appointed exclusive Project Marketer in return for a fee of 6% of gross sale proceeds. LIVV 1285 appointed LIVV Developments as Financial Manager to assist LIVV 1285 to obtain finance to complete the purchase of Donnybrook for a fee of 2% of the gross sale proceeds of each lot in the Donnybrook project. When the various fees payable to LIVV Developments by LIVV 1285 pursuant to the 2018 Heads of Agreement are aggregated, they amount to 12% of the gross sale proceeds of the Donnybrook project. There is no management role provided for in favour of PSCA concerning the development of Donnybrook and no fees are payable to it.

744 The 2018 Heads of Agreement also provided that LIVV Developments would lend $4.5 million to Mr Voci on terms that included payment of an establishment fee of 2% of the loan amount capitalised to form part of the principal, interest on the loan at 18% per annum, with payment to be made on each date upon which Mr Voci and/or his associated entity was entitled to profit from the development or sale of Donnybrook, and with payment to be made from such profit.[183]

745 Ms Troiano alleges that while on 18 December 2018, Mr Voci held a property, Donnybrook, that was worth over $14 million more than he had agreed to pay for it, the effect of the 2018 Heads of Agreement was not to realise that value or anything like it. The only cash the 2018 Heads of Agreement raised for Mr Voci was $4.5 million, not as a payment, but as a loan on disadvantageous and uncommercial terms. Mr Voci's interest in Donnybrook was diluted to 35%, PSCA was removed from any development role, and instead of PSCA deriving income from the development, 12% of the gross profit of the development was directed to LIVV Developments, an unrelated party.

746 Cross-examined about the purpose of the $4.5 million loan, Mr Voci said there were still some unit holders in River Hills, he had SOW fees clients who were well overdue for payment, so he was under a lot of pressure. He further stated that there was also a lot of debt owed by PS Homes, a company controlled by him. Mr Voci's evidence that there was still money owing to unit holders was contradicted by other evidence given by Mr Voci in which he accepted that, by the time of the $4.5 million loan, the unit holders had all been paid. His explanation that he must have got money from 'somewhere' to pay the unit holders and that his objective of borrowing the $4.5 million at 18% was to pay back everyone he owed money to,[184] was not convincing and was at best vague.

747 As Mr Voci accepted in cross-examination, by the time of the 2018 Heads of Agreement, Mr Voci had received a number of payments under the Dahua Nomination Agreement; the initial amount of $6.8 million, the FIRB instalment of $10 million and the post-FIRB instalment of $8.2 million; a total of $25 million in the previous 12 months. It was his evidence that as at the date of trial interest at 18% was continuing to accrue on the $4.5 million loan.

748 As anticipated by the 2018 Heads of Agreement, on 7 June 2019, LIVV 1285 as landowner appointed LIVV Developments as Development Manager for Donnybrook pursuant to a Development Management Agreement. The Development Management Agreement provides that in return for the provision of development management services, marketing and procuring finance, LIVV Developments is entitled to 12% of gross sale proceeds together with a series of other possible receipts from the project such as insurance proceeds, interest and forfeited deposits.

749 In her closing submissions Ms Troiano contended that it was appropriate to calculate the hypothetical gain on the Donnybrook project because a basis for her claim is that Mr Voci should not have entered into the 2018 Heads of Agreement.

750 Having completed the chronological review of the facts, it is appropriate to consider Ms Troiano's claim for breach of fiduciary duty. The duty alleged appears at paragraph 63 of the TFASC; breach is alleged at paragraphs 64 and 64A. The duty allegations rely on a number of paragraphs of the TFASC, factual matters that span the period August 2014 to December 2018. The claims are made against Mr Voci personally and against PSCA, and also against the third to eighth and tenth and eleventh Voci company defendants on the basis that those companies are the alter ego of Mr Voci, alternatively of PSCA, with a transmitted fiduciary obligation.

751 Ms Troiano submitted that the three of them, Mr Voci, Ms Troiano and PSCA, 'stood at the every [sic] edge of having a partnership' and that 'the necessary trust and confidence was present when Ms Troiano placed the Bindts Road opportunity before Mr Voci and PSCA'.[185] Further, that a fiduciary relationship existed both before and after the MPD Agreement was entered into and irrespective of whether a legally binding agreement was entered into or not.

752 Ms Troiano accepted in closing submissions, as is the case, that 'joint ventures' do not constitute a recognised category of fiduciary relationship. However, simply because the relationship relied upon does not fall within an accepted category of fiduciary relationships does not mean that no fiduciary relationship arises.

753 The relevant principles are not in doubt. In Hospital Products Ltd v United States Surgical Corporation,[186] Mason J set out an important statement concerning fiduciary duties:[187]

The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations (cf. Phipps v. Boardman [1966] UKHL 2; (1967) 2 AC 46, at p 127), viz., trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary of his position. The expressions "for", "on behalf of" and "in the interests of" signify that the fiduciary acts in a "representative" character in the exercise of his responsibility, to adopt an expression used by the Court of Appeal.

It is partly because the fiduciary's exercise of the power or discretion can adversely affect the interests of the person to whom the duty is owed and because the latter is at the mercy of the former that the fiduciary comes under a duty to exercise his power or discretion in the interests of the person to whom it is owed.

754 The principles relevant to identifying existence or otherwise of such a relationship, outside the established categories were helpfully summarised by Jacobson, Gilmour and Gordon JJ in ABN Amro Bank NV v Bathurst Regional Council:[188]

1. The "critical feature is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person".

2. It is the element of undertaking (from the point of view of the fiduciary) or obligation (for and on behalf of the beneficiary) that has the consequence that equity insists that the principal must act in the "interests of" or "for the benefit of" the beneficiary rather than in the principal's own interests.

3. Whether a fiduciary relationship exists in a particular case, and if so, the scope of that fiduciary relationship, are matters which depend critically upon the particular circumstances of the case.

4. The characteristics which define a fiduciary relationship cannot be exhaustively defined. It is inappropriate to treat the existence of a fiduciary obligation as being dependent upon whether the principal and beneficiary fall into a particular status relationship.

5. Similarly, whether a fiduciary relationship has come into existence does not depend upon the motivation or desire of one party to establish a relationship of trust or confidence. What matters is whether there is a relationship involving the requisite undertaking, determined as a matter of objective characterisation, rather than by having regard to the subjective expectations of the parties.

755 In closing submissions, Ms Troiano submitted the closer a joint venture comes to involving the level of trust and confidence involved in a partnership, the more likely it is to involve equitable obligations.

756 A number of authorities were referred to in support of Ms Troiano's fiduciary duty claim, including United Dominions Corporation Ltd v Brian Pty Ltd,[189] where the High Court found a fiduciary relationship to exist between two parties who had entered into written 'joint venture' agreements concerning the development of land into a hotel and shopping centre. In that case, in a passage relied upon by Ms Troiano, the fiduciary relationship was found to have arisen prior to entry into the joint venture agreement. Mason, Brennan and Deane JJ said:[190]

In the present case, the relationship between U.D.C., Brian and S.P.L. had plainly assumed a fiduciary character prior to 24 October 1973 when S.P.L. gave the first of the mortgages to U.D.C. By that time, the arrangements between the prospective joint venturers had passed far beyond the stage of mere negotiation. Each had, by then, agreed to be, and been accepted as, a participant in each of the proposed joint ventures, if both or either of them went ahead. Each had made or agreed to make financial contributions towards the costs of the project or projects in which it or he had agreed to participate. S.P.L. was acting as agent for the proposed joint venturers in relation to the establishment of each of the joint ventures and as trustee of those funds with which it had already been entrusted. In so far as Brian was concerned, it was a fundamental element of the substratum of the fiduciary relationship that then existed that the subject land, which was being purchased with joint venture funds for joint venture purposes, would be held available to be devoted to any ensuing joint venture or joint ventures and that Brian, as an accepted joint venturer who had already made financial contribution towards the proposed hotel joint venture, was and would remain able to participate in the net profits in accordance with its share in the relevant joint venture. To transpose the words of Dixon J. in Birtchnell [v Equity Trustees, Executors & Agency Co Ltd [1929] HCA 24; (1929) 42 CLR 384, 407-408], the participants in each of the then proposed joint ventures were "associated for ... a common end" and the relationship between them was "based ... upon a mutual confidence" that they would "engage in [the] particular ... activity or transaction for the joint advantage only". It matters not, for present purposes, whether that relationship is seen as that which may exist between prospective partners or joint venturers before the terms of any partnership or joint venture agreement have been settled or whether it is seen as a limited preliminary partnership or joint venture to investigate and explore the possibilities of an ultimate joint venture or ventures. On either approach, it was a fiduciary one.

That being so, the proposed participants in each joint venture were under fiduciary obligations to one another in relation to the proposed project at the time when the first of the mortgages was given and accepted. In particular, each participant was under a fiduciary duty to refrain from pursuing, obtaining or retaining for itself or himself any collateral advantage in relation to the proposed project without the knowledge and informed assent of the other participants. "The subject matter over which the fiduciary obligations" extended must be "determined by the character of the venture or undertaking for which" the relationship between the prospective joint venturers existed: per Dixon J., Birtchnell [at 408] in a partnership context but equally applicable here ...

757 Concerning a fiduciary relationship established after the joint venture contracts had been entered into, Mason, Brennan and Deane JJ said:[191]

In the present case, it is apparent that the relationship between the participants in the shopping centre venture was a fiduciary one at least from the time when the formal agreement was executed. Under the agreement, the participants were joint venturers in a commercial enterprise with a view to profit. Profits were to be shared. The joint venture property was held upon trust. The participants indemnified the managing participant (S.P.L.) against losses. The policy of the joint enterprise was ultimately a matter for joint decision. Apart from the absence of any reference in the agreement to "partnership" or "partners", the relationship between the participants under the agreement exhibited all the indicia of, and plainly was, a partnership ... It is true that U.D.C. came to the joint venture in the role of prospective financier and, in so far as borrowings from it by the S.P.L. group on behalf of the partnership were concerned, occupied the role of lender as well as that of partner. In so far as the property which was the subject of the joint venture was concerned however, the fact that U.D.C. was a lender to S.P.L. on behalf of the partnership did not absolve it from the ordinary fiduciary obligations of a partner.

758 The defendants placed reliance in their closing submissions on Adventure Golf Systems Australia Pty Ltd v Belgravia Health & Leisure Group Pty Ltd[192], stating: [193]

368. The application of fiduciary duties to a joint venture relationship was considered recently by the Victorian Court of Appeal in Adventure Golf Systems Australia Pty Ltd v Belgravia Health & Leisure Group Pty Ltd [2017] VSCA 326; (2017) 54 VR 625 (Adventure Golf Systems).

369. There, the trial judge had concluded, amongst other things, that an agreement between the disputing parties was one which did not, in any relevant sense, create fiduciary duties_._

370. His Honour at first instance concluded that whilst the parties were 'joint venturers in a commercial enterprise with a view to profit', the 'features' of the relationship the High Court identified in United Dominions as exhibiting 'all the indicia of a partnership' are largely absent.

371. On appeal, Santamaria JA (with whom Kaye and Ashley JJA agreed) observed that there is no single test for determining whether a fiduciary relationship exists in any given case, noting that (at [120):

The essence of a fiduciary relationship is that one party to the relationship is obliged to act in the interests of another party (or, in the case of a partnership or joint venture, their joint interest) to the exclusion of the former's self-interest. As a result, the fiduciary is prevented from entering into any engagement in which the fiduciary has, or could have, a personal interest conflicting with that of his or her principal; nor is the fiduciary allowed to retain any benefit or gain obtained or received by reason of or by use of its fiduciary position or through some opportunity or knowledge resulting from it.

372. Santamaria JA cited both Mason J's judgement in Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41 (Hospital Products) and the observations of Gaudron and McHugh JJ in Breen v Williams (1996) 186 CLR 71 in identifying the hallmarks of a fiduciary relationship, concluding, amongst other things, that (at [124]):

The existence of one or more of the above indicia is not determinative of the existence of a fiduciary relationship; 'the fundamental question is for what purpose, and for the promotion of whose interests, are powers held?' That being said, a fundamental and inflexible feature of a fiduciary relationship is the existence of an obligation of loyalty: '[t]he principal is entitled to the single-minded loyalty of his fiduciary.'"

373. His Honour also concluded that (at [125]):

More often than not, commercial transactions which were negotiated at arm's length between self-interested and sophisticated parties on an equal footing do not give rise to fiduciary duties.

374. As to the agreement itself before the Court, his Honour concluded that there was in fact no fiduciary relationship between the parties to it (at [133]):

There are a number of other features, some of which were identified by the trial judge, that weigh against the conclusion that AGS and Belgravia owed each other fiduciary obligations. The critical starting point is the [agreement] itself. The [agreement] is elaborate. It spells out a number of rights and obligations on the part of each of AGS and Belgravia that related to the management, maintenance, operation and development of the [facility]. Viewed as a whole, these features of the [agreement] are difficult to reconcile with an obligation that one party act for or on behalf of or in the interests of the other, except in a broad sense that each party was obliged to perform its obligations under the [agreement] in accordance with its terms. [...] Neither the terms of the [agreement] nor the way in which the parties conducted the adventure golf business thereunder suggests that one party was obliged to subordinate its own interests and to afford paramountcy to those of the other.

375. Indeed, fiduciary relationships cannot be inconsistent with the terms of a contract - they cannot be "superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction".

759 Another of the authorities dealing with joint ventures upon which particular reliance was placed by Ms Troiano is the decision of the New Zealand Court of Appeal in Chirnside v Fay.[194] In that case, the Court considered a joint venture to develop a property where one joint venturer had been excluded by the other. Both parties were businessmen with a property development background. They identified a property in Dunedin suitable for development and leasing to Harvey Norman. At about the time it became clear Harvey Norman would commit to the property as a major tenant Mr Chirnside excluded Mr Fay from the project. In the Court of Appeal, Elias J found:[195]

Where parties join together in a venture with a view to sharing the profit obtained, their relationship is inherently fiduciary within the scope of the venture and while it continues. The label "joint venture" may sometimes be used to describe what are in fact separate businesses operating at arm's length, with profits taken separately and directly by the participants instead of being realised by the venture itself (as is common in the case of mineral exploration or share-milking, for example). That is not the relationship found to have existed here. In my view the venture to acquire and develop the Speights site was indistinguishable from a single transaction partnership between Mr Fay and Mr Chirnside. The fact that the parties may have expected to settle their arrangements later more formally through a corporate structure (as they had done in their earlier joint venture), or through a partnership agreement, does not alter the character of the relationship already established and under way. (emphasis added)

760 Unlike the facts in Fay, here Ms Troiano was not excluded from involvement in Bindts Road. The 14 November 2014 agreement expressly referred to that prospect, should it 'eventuate'. In her closing submissions as to the fiduciary duty contended for, Ms Troiano referred, concerning relevance of contractual relations, to further observations of Mason J in Hospital Products.[196] In a passage referred to with approval by the High Court in John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd,[197] Mason J said:[198]

That contractual and fiduciary relationships may co-exist between the same parties has never been doubted. Indeed, the existence of a basic contractual relationship has in many situations provided a foundation for the erection of a fiduciary relationship. In these situations it is the contractual foundation which is all important because it is the contract that regulates the basic rights and liabilities of the parties. The fiduciary relationship, if it is to exist at all, must accommodate itself to the terms of the contract so that it is consistent with, and conforms to, them. The fiduciary relationship cannot be superimposed upon the contract in such a way as to alter the operation which the contract was intended to have according to its true construction.

761 Concerning the role of contracts in determining the existence or otherwise of a fiduciary duty, in Hospital Products Dawson J said:[199]

A fiduciary relationship does not arise where one of the parties to a contract has failed to protect himself adequately by accepting terms which are insufficient to safeguard his interests. Where a relationship is such that by appropriate contractual provisions or other legal means the parties could adequately have protected themselves but have failed to do so, there is no basis without more for the imposition of fiduciary obligations in order to overcome the shortcomings in the arrangement between them.

762 In closing address, Ms Troiano submitted that on 29 October 2014, whilst negotiations between Ms Troiano and Mr Voci were ongoing, Ms Troiano, who had spent the past months 'beavering away in anticipation of entering into a concluded agreement with PSCA along the lines of the Initial Agreement',[200] imparted valuable and confidential information to Mr Voci about two potential project opportunities, one of which was the land at 130-150 Bindts Road, Epping. It was submitted the information provided that evening to Mr Voci was not publicly available, was communicated to him in circumstances of confidence and that the parties then proceeded to define the agreement they would eventually reach as to how they would share in that opportunity. It was submitted the information which was confidential was not entrusted in circumstances which would suggest that the information could be used to Mr Voci's own selfish benefit to the exclusion of Ms Troiano. Further, it was submitted that if there is a relationship of trust and confidence and if information which is confidential, commercially sensitive and valuable is imparted in that context, then the fiduciary relationship will continue, unless by some contractual arrangement between the relevant persons it is effectively removed.

763 I do not agree that in this case a fiduciary relationship arose between Ms Troiano on the one hand and Mr Voci and/or PSCA on the other. Contrary to Ms Troiano's submissions, it is not the case that Mr Voci, Ms Troiano and Mr Voci 'stood at the very edge of having a partnership'. There was not even a joint venture relationship as alleged. I do not consider Ms Troiano has discharged the burden of proving the existence of such a duty. There are a number of reasons why that is so.

764 The first, the 'Initial Agreement' relied on in support of the fiduciary duty claim was an agreement that Ms Troiano would share in PSCA Major Projects equity and profits. The subject matter of the 'Initial Agreement' was not undertaking property development together. It was also an agreement proposed between PSCA and Ms Troiano.

765 Second, when Ms Troiano identified and brought the opportunity to Mr Voci concerning 130-150 Bindts Road and the other project at Bell Street, Preston on 29 October 2014, these were two potential project opportunities for PSCA for whom at that time Ms Troiano was performing work, albeit on an unpaid basis as Senior Development Manager, PSCA MPD. She brought the 'opportunity' to the table in the context of that role and to PSCA as a service provider, not as a property developer.

766 Third, there was no discussion or agreement between the parties prior to 14 November 2014 that Ms Troiano, Mr Voci and/or PSCA would seek to purchase Bindts Road themselves. The facts here are quite different to those in Fay.[201] In that case, the land was identified and the parties proposed to purchase and develop it themselves. That is not this case. There was the light-hearted reference to 'Want to own a suburb?' in the 2 November 2014, email from Ms Troiano to Mr Voci, but no discussion or consideration at that time of purchase of the land by Mr Voci with or without Ms Troiano. It was only in Shanghai in March 2015 that for the first time Mr Voci raised the prospect of purchasing land in Bindts Road himself. He raised the prospect of doing so at a time when Ms Troiano was present but she did not at that time assert an entitlement to participate as a 25% equity and profit joint venturer in the purchase of that land. Nor did she subsequently act in a manner in any way consistent with an expectation that she held such an interest. For example, at the meeting with Pitcher Partners and in her dealings with others such as Mr Stenning and Mr Cattapan concerning the incorporation of companies and corporate structures.

767 Fourth, a key difficulty about finding a fiduciary relationship existed both before and after entry into the 14 November 2014 agreement as is contended for by Ms Troiano is the nature and subject matter of the 14 November 2014 agreement.

768 The nature of the 14 November 2014 agreement is, for the reasons earlier discussed, not an agreement for a joint venture, it is an employment agreement between PSCA and Ms Troiano. The subject matter of the agreement is not property development to be undertaken; it is the provision of services concerning the development of property by others.

769 Fifth, to impose a fiduciary relationship as alleged would be inconsistent with the terms of the 14 November 2014 employment agreement which makes express reference in the Schedule to Bindts Road, the opportunity communicated by Ms Troiano to Mr Voci in confidence, and to Ms Troiano's remuneration entitlement concerning it. The history of the negotiations that led to the 14 November 2014 agreement shows that Ms Troiano's remuneration entitlement from PSCA relating to Bindts Road was treated differently to her remuneration entitlement otherwise arising concerning Major Projects. She requested that remuneration relating to Bindts Road and to any other 'particularly large Major Project', being a 25% equity and profit share come into play from the outset, and that her remuneration entitlement, unlike in respect of other Major Projects, not be deferred for 12 months as to 10% and for two years as to 25%, and Mr Voci on behalf of PSCA agreed that was to be so. Should Bindts Road or any other particularly large Major Projects eventuate, Ms Troiano was to have an instant entitlement to 25% equity and profit share. That was the 'price' she extracted as part of the contractual negotiations and it is reflected in the 14 November 2014 agreement. If, in addition, there was to have been a joint venture, it would have been mentioned.

770 What was agreed was not a joint venture agreement. It was an employment agreement that provided for specific benefits in Ms Troiano's favour concerning Bindts Road. In circumstances where the 14 November 2014 agreement is an employment agreement and where there was express reference to Bindts Road in that agreement, and where the benefits to be provided to Ms Troiano in relation to that property should it 'eventuate' were far superior to benefits otherwise to be provided for her as part of her remuneration, it seems to me the agreement itself covers the field. There is no scope for, in addition, imposing a fiduciary obligation concerning the purchase of the land at Bindts Road.

771 If there were to be a fiduciary relationship as contended for, to sit with the 14 November 2014 agreement and Ms Troiano's role as an employee of PSCA and not so as to be inconsistent with that agreement, there would need to be a finding that separately, Ms Troiano and Mr Voci would seek to exploit the Bindts Road opportunity by purchasing the land themselves. The problem with that analysis is that it does not match the evidence. They did not discuss buying the land themselves.

772 In Brian,[202] the subject matter of the intended joint venture was identified with precision; the land was being purchased with joint venture funds, for joint venture purposes. Both parties had agreed that that is how they would proceed, if either of them went ahead. In this case there was not even a conversation between Ms Troiano and Mr Voci about buying the land together. Before the Heads of Agreement was signed for 130-150 Bindts Road on 8 April 2015, how the land might be funded was never discussed between them. That is because they also did not discuss that they or one of them might be the purchaser. Ms Troiano's case is that she was a joint venture participant entitled to 25% equity and profit share, but not required to contribute financially at all and nor was she to be financially exposed as a guarantor or company director, yet none of these things were discussed. Unlike Brian, there was no agreement between them to pursue Bindts Road if one or other of them went ahead.

773 Mr Wise gave evidence that at all relevant time as a bookkeeper employed by PSCA, he was responsible for inputting all revenue, costs and expenses into MYOB in relation to the ten projects the subject of the proceeding, as well as all other PSCA projects. Mr Wise said he never inserted any information into MYOB that did not come from a source document which he had sighted and that if an invoice did not relate to a specific project, he would not allocate the amount to a specific project, but would allocate that amount as a general expense of PSCA. I accept that evidence as accurate.

774 Mr Cattapan and his firm prepared financial accounts for PSCA and the Voci companies for all relevant years including the financial year ended 30 June 2018. Mr Cattapan said work had not yet commenced on preparation of the 2019 and 2020 financial accounts of PSCA because his firm did not have resources available and so lacked the capacity to do so, and there were also significant unpaid fees over an extensive period that had only recently been settled.

775 The financial accounts of PSCA and the Voci companies for the year ended 30 June 2018 were prepared on the basis of instructions given by staff at PSCA to Ms Dimovski, an accountant employed in Mr Cattapan's accounting practice. Ms Dimovski also assisted in the preparation of draft calculations and spreadsheets leading to the profit estimates in relation to the ten projects. As was made clear in Mr Cattapan's supplementary witness statement, he relied on the information provided to him and did not undertake a formal audit to confirm the accuracy of PSCA accounting records.

776 When it came to allocation of expenses, Mr Cattapan said that where Mr Wise had given a general allocation of expenses, he himself did not re-allocate those expenses to particular projects, but was unable to say if his staff had done so. Questioned about entries in MYOB/Excel spreadsheets, Mr Cattapan described workbooks prepared by his staff drawing on MYOB data for which Mr Wise had been responsible in terms of inputs. Entries in spreadsheets for the description of expenses such as 'various' reflected entries made by Mr Wise or others at PSCA. Cross-examined about particular expenditure items and their relationship to River Hills such as expenditure on Blinds R Us and KCL Lawyers, Mr Cattapan was unable to say how the former category of expenditure might relate to River Hills. He agreed that if expenditure relating to KCL Lawyers related to the litigation, that was not expenditure relevant to River Hills.

777 Mr Cattapan's supplementary witness statement dealt with detailed accounting issues concerning Bindts Road and the allocation of nomination fees, total project net expenses on that project, described as made up of cost of sales plus expenses less reimbursements contained in the financial reports of each of the River Hills entities, income tax expenses of River Hills Estate Pty Ltd and River Hills Estate No 2 Pty Ltd, including a summary of 'profit after tax' and retained earnings amounts distributed to unitholders in each of the River Hills entities for the year ended 30 June 2018.

778 Mr Cattapan was questioned about the calculation in his witness statement where net total project expenses of $9,632,886 were deducted from the Bindts Road nomination fee of $26,010,421, resulting in a profit before tax of $16,377,535. It was his evidence that direct costs of $2.649 million related to SOW fees and not total project expenses.

779 As explained by Mr Cattapan, the accounts and the calculations of profit in each of the River Hills entities are separate calculations, rather than consolidated calculations. The sum of $2,912,630 shown as property development costs of PSCA in the 2018 profit and loss of River Hills Estate Pty Ltd, comprised pass through costs of PSCA together with its management fees.

780 Mr Cattapan calculated a total profit figure of $15,483,997 as a result of income derived by the nomination fees arising under the nomination agreement concerning Bindts Road. Of that amount, $1,647,894 was distributed to third party unitholders of the URH Nos 4, No 5 and No 6 Trusts during the year ended 30 June 2018. $11,780,437 was distributed to Wollert Projects Pty Ltd as trustee for the DRH Nos 3, 4, 5 and 6 Trusts, each being discretionary trusts associated with Mr Voci. In turn those trusts made distributions corresponding to the distributions made to them and to other trusts, all being entities associated with Mr Voci. Those entities received those distributions in the year ended 30 June 2018.

781 Profits of $1,005,203 were retained after 30 June 2018 in River Hills Estate Pty Ltd and River Hills Estate No 2 Pty Ltd. Mr Cattapan gave evidence that from the retained profits, distributions will be required to be paid and are payable to third party unitholders. $699,911 was distributed to third party unitholders of the URH No 3 and No 6 Trusts during the years ended 30 June 2017, 2019 and 2020 as distributions of profit in accordance with the unit trust deeds. According to PSCA's records, $242,670 remains owing to third party unitholders in the URH No 3 Trust and a further estimated loss in the sum of $107,882 was incurred after the year ended 30 June 2018 by the River Hills entities.

782 Mr Cattapan gave evidence that taking into account those matters, a total amount of $12,785,640 was realised by the DRH Trusts ($11,780,437) and the River Hills entities ($1,005,203) as a consequence of the nomination fees received by those entities.

783 Mr Cattapan assessed the profit made by PSCA referrable to Bindts Road at $696,558. That figure was used as the base figure by the expert accountants when preparing both the joint report and the matrix.

784 Mr Cattapan also reviewed the accounts of PSCA concerning the Donnybrook project. He was instructed that PSCA charged project management fees to 1285 Donnybrook Road as trustee of the Donnybrook Road Trust for services performed. After taking into account those project management fees, he calculated the profit derived by PSCA from the Donnybrook project to be $365,353. That figure was also used by the expert accountants as the base figure when calculating PSCA profits referrable to Donnybrook.

785 Mr Cattapan gave evidence of his calculation or estimate of the profit/loss derived by PSCA for each of the eight Major Projects. His calculation of the profit/loss derived by PSCA for each of those projects, being calculations relied on by the expert accountants as the starting point for each such project, was as follows:

(a) Bailey Street, Belmont - a profit of $592,244;

(b) Hunter Street, Richmond - a profit of $44,849;

(c) Yarra Street, Richmond - a profit of $120,947;

(d) Burwood Highway, Burwood - a loss of $15,546;

(e) Harvest Home Road, Epping - a profit of $16,512;

(f) Gardner Street, Richmond - a profit of $11,392;

(g) 12 Craig Street, Keilor East - a loss of $519,633; and

(h) 18 Craig Street, Keilor East - a profit of $233,317.

786 Expert evidence was given as to accounting issues by Ms Smith, Ms Wright and Mr Cattapan. The expert accounting witnesses prepared a joint report dated 7 May 2021 ('Joint Accounting Report') and gave evidence in a conclave commencing on 21 May 2021.

787 The expert evidence at trial was directed toward assessing the PSCA profits referrable to Bindts Road, Donnybrook and other alleged Major Projects. In addition, to the question of the profit of the River Hills entities relating to Bindts Road and the profit relating to Donnybrook assessed as at December 2018. One of the inputs to the calculation of profit on the Donnybrook project concerned the appropriate allowance for the value of six lots to be provided to the vendor of the land following subdivision. On that issue, and on the issue of the market value of Donnybrook as at December 2018, two expert land valuers, Mr Brown and Mr Papworth, gave evidence.

788 Ms Smith gave evidence on behalf of Ms Troiano. Ms Smith is a chartered accountant and corporate advisory director of William Buck (Vic) Pty Ltd. She prepared a report dated 25 January 2021. Ms Smith participated in the Joint Accounting Report, and gave evidence in the conclave of accountants. On the day prior to the conclave, she provided a revised calculation of overheads.

789 Ms Wright gave evidence on behalf of Mr Voci. Ms Wright is a chartered accountant and senior managing director of the Forensic Accounting and Advisory Services practice at FTI Consulting. Ms Wright prepared an expert report dated 20 April 2021 in response to Ms Smith's 25 January 2021 report. Ms Wright participated in the Joint Accounting Report and gave evidence in the conclave of accountants.

790 The Joint Accounting Report identified areas upon which the experts agreed, and significant areas of disagreement. The areas of disagreement formed the basis for the receipt of evidence by the accounting experts in the conclave. At the conclusion of the conclave, significant differences remained. In light of those differences and the possibility that I would prefer the views of one expert on one contested topic and another on another contested topic, I made orders that the experts provide a document showing the monetary impact of accepting the various competing views of which they had given evidence ('Expert Questions'). On 11 June 2021, the expert accounting witnesses filed a 'matrix' setting out their respective answers to the Expert Questions ('Joint Matrix').

791 It is convenient to discuss the differences in views expressed by the expert accountants by reference to the Expert Questions.

792 Before turning to the Expert Questions, it is necessary to deal with two discrete matters. First, to consider of the attack on Ms Smith's independence by the defendants. Second, to refer to the land valuation expert evidence.

793 The defendants cross-examined Ms Smith on the basis that her opinions were not independent. In closing submissions, they asserted that her evidence was tainted, lacked independence and should not be accepted. I do not agree with those criticisms of Ms Smith's evidence.

794 In her expert report, Ms Smith disclosed that in September 2019 she 'assisted Ms Troiano by reviewing certain documents in relation to the proceeding and providing a list of further information that [she] thought should be obtained from the defendants'. She went on to say that she had not previously provided any opinions in relation to profitability of the projects.

795 In cross-examination, Ms Smith was questioned about an email forwarded to her firm on 13 August 2019 which requested that her firm act as 'shadow expert', 'who can aggressively represent [Ms Troiano's] interests as first step to confirm the quantum of [her] claim'. On 3 September 2019, an engagement letter was sent to Ms Smith's firm to retain Ms Smith and her firm as a shadow expert. The engagement letter made it clear that Accounting Professional and Ethical Standards APES 225 (Valuation Services) and APES 215 (Forensic Accounting Services) (together, the 'Accounting Standards'), both of which include obligations of independence, would not have application to that retainer.

796 Questioned about the work that she undertook in 2019, Ms Smith said that she was undertaking an independent assessment for the purpose of quantifying the claim. The retainer letter identified the scope of work as including the review of all information and documents provided, the provision of a list of additional information that an expert would require to form a firmer view as to loss of profit, and the provision of a preliminary view on the calculation of loss of profit.

797 While expressly referring in her 25 January 2021 expert report, to the earlier work and describing that work, Ms Smith did not refer to the fact that in September 2019 she was engaged as a 'shadow expert'. She did not refer to the engagement to provide a preliminary view on the calculation of loss of profit. She was criticised by the defendants for her failure to do so.

798 I accept Ms Smith's evidence when cross-examined that in 2019 she did not provide a valuation and nor, despite initial instructions to do so, did she provide a preliminary view on the calculation of loss of profit. A preliminary spreadsheet was prepared summarising information and a series of questions asked of Ms Troiano by Ms Smith's firm to which responses were received. However, Ms Smith did not undertake all of the tasks referred to in the 3 September 2019 engagement letter and that the work performed by her and her firm at that time was very limited. Her disclosure of previous work in her 2021 report was appropriate.

799 It was a theme of cross-examination of Ms Smith that thereafter she continued to act 'aggressively' in the interests of Ms Troiano. There was no substance to that criticism.

800 There was a gap of 12 months between the limited 'shadow expert' work performed which concluded with the provision of a list of documents to be sought from Mr Voci and his entities on 18 November 2019 and the sending of an email to the solicitor for Ms Troiano on 11 December 2020. In that email Ms Smith said she would not commence acting unless outstanding fees were paid to her firm. Ms Smith was subsequently retained as an independent expert.

801 The December 2020 retainer letter exhibited to Ms Smith's report, and the report itself, made it clear that in performing that role Ms Smith agreed to be bound by both the Expert Witness Code of Conduct contained in Form 44A of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and by the Accounting Standards. Although Ms Smith had only limited previous experience of actually giving expert evidence, she had prepared a number of expert reports in the past. I have no doubt that she maintained a high level of professional independence when carrying out the work the subject of her expert report, when participating in the joint conference and when giving her evidence.

802 There was no continuous retainer of Ms Smith as a shadow expert and only very limited work, not including expressions of opinion, was performed by Ms Smith and her firm in 2019. This was a case far removed from the circumstances in ASIC v Rich,[203] where the forensic accountant had prepared an investigative report in a similar role to that of a shadow expert and then was 'converted' to a supposedly independent expert.

803 There was criticism of Ms Smith in cross-examination because of her acceptance of instructed assumption that Ms Troiano was the only person working on the ten Major Projects. Further, that when Ms Troiano left, there was only one person working on the projects in which she had been involved. Those instructed assumptions initially came from the client, Ms Troiano direct, and not from the solicitors. That occurred over the Christmas period, with the relevant email being sent on 28 December 2020 from Ms Troiano in circumstances where Ms Smith was working on the report with a January 2021 due date. She later received instructions by telephone from the plaintiff's solicitor on 25 January 2021 that qualified those earlier instructions, noting in a file note of that conversation that: 'Rita did the majority of the work but not all the work'.

804 I accept as a legitimate criticism that faced with revised instructed assumptions about Ms Troiano's role, a short time before her report was due Ms Smith did not change her percentage overhead allocation, being 56% of other salaries, to other projects. However, I do not regard her failure to do so as having been influenced by or reflective of a lack of independence.

805 The attack on Ms Smith's independence continued when she gave evidence and was cross-examined about various topics in the joint report. There was no basis for that criticism. I do not accept that Ms Smith's opinions and the evidence that she gave were in any way coloured by a desire to advance Ms Troiano's case.

806 Mr Brown is a fellow of the Australian Property Institute and director of m3property (Vic) Pty Ltd. He has a broad range of experience in valuing various types of property, and has significant experience in giving expert evidence. Mr Papworth is also a very experienced land valuer and a fellow of the Australian Property Institute.

807 Mr Brown and Mr Papworth prepared expert reports dated 1 November 2019 and 24 January 2020, respectively, and a joint expert report dated 23 December 2020. Mr Brown and Mr Papworth gave evidence in a conclave. There was no attack on the independence of either witness.

808 Both land valuers agree that the market value of Donnybrook as at 17 December 2018 was $32,200,000. As recorded in their joint report, Mr Brown calculated a value for Mr Voci's interest and profitability while Mr Papworth did not do so. The land valuers expressed their joint opinion that Mr Voci's interest in Donnybrook and its profitability should be calculated by an accountant utilising the valuation inputs agreed upon by both valuers.

809 In the opinion of Mr Brown, as at December 2018, an appropriate allowance for the six blocks of land to be provided to the Donnybrook vendor was $1.2 million, exclusive of GST. In the opinion of Mr Papworth, an appropriate allowance for the blocks was $1.8 million inclusive of GST.

810 When Mr Brown and Mr Papworth gave evidence concurrently, both were cross-examined about this issue. The contract required six lots with an area 'ranging in size from 350sqm‑ to 400sqm to be allocated at the purchaser's discretion'. Both Mr Papworth and Mr Brown assessed the market value of an average allotment of the same size. Mr Papworth's assessment was $243,894, Mr Brown's assessment was $261,830. Mr Papworth adopted a 'worst-case scenario' of 400 m² allotments and rounded his value up to $300,000 per lot or gross $1.8 million, inclusive of GST. Mr Brown rounded his figure down to $200,000 per lot for a total of $1.2 million on a GST exclusive basis.

811 I consider it appropriate to proceed on the basis that $1.2 million is the market value of the six blocks. That is the case because, as pointed out by Mr Brown, the contract did not specify where the blocks in question are to be located, leaving it open to the purchaser to select the 'worst blocks'. Also the purchaser could select blocks at the bottom end of the size range. I also agree with Mr Brown that it is not appropriate to make an allowance for GST. That is the case because, as the lots in question are not being sold, but retained, no GST would attach to the transaction.

812 It should be noted that in addition to the expert evidence of the land valuers, there was evidence that the parties to the Donnybrook contract agreed to vary the contract to remove the vendors' entitlement to retain six lots in return for an increase in the price of $1.65 million. The deed by which that variation was made is not dated. Ms Troiano submitted that there being no evidence of the date of the variation, the price agreed could not confidently be said to represent the market value of the six lots.

813 By reference to the variation deed, it appears that the agreement was made at a time when $16.2 million remained to be paid under the original contract. It is therefore reasonable to infer the variation was entered into after November 2018 (when the previous payment due under the contract was made). However it is not clear how long after November 2018 the variation deed was made.[204] Given the uncertainty around the date, I prefer to proceed on the basis of the expert evidence.

814 The Joint Accounting Report recorded matters upon which the experts agreed.

815 Ms Smith accepted Ms Wright's calculation of the reported profit of the River Hills entities up to the end of the 2018 financial year as $16,374,784.

816 Ms Smith and Ms Wright agreed that the MYOB records of the River Hills entities showed a nomination fee of $6,568,137 in the 2019 financial year management accounts. It was agreed that if the fee was incorrectly recognised in the management accounts for the 2019 financial year, the finalised accounts not having been provided, then that fee should not be included in the calculation of profit for the Bindts Road project.[205]

817 The Joint Accounting Report identified an absence of information concerning:

(a) bonuses by project so that expenses could be allocated to the projects to which they relate;

(b) a list of bad debts by project, again permitting allocation of bad debts to specific projects;

(c) a list of commissions paid by projects so that commissions could be allocated to specific projects; and

(d) loan documents relating to the loans, as well as further information on movements between loan balances between financial years and any loan related to the interest expense paid by PSCA in the 2018 financial year.

Areas of Disagreement and Questions for Determination

818 The Joint Accounting Report and subsequently the Expert Questions identified the topics about which, at the conclusion of the expert conclave, with the exception of question 1(a) and (b), the accounting experts continued to disagree. The Expert Questions are as follows:

(1) What is the profit made by the River Hills entities, excluding any distributions to third party unitholders of the URH No 3 Trust, URH No 4 Trust, URH No 5 Trust, and the URH No 6 Trust:

(a) excluding PSCA's charges; or

(b) including PSCA's charges?

(2) What is the profit made by PSCA referrable to Bindts Road?

(3) What is the profit that would have been derived by Mr Voci if his interest in the Donnybrook Project had been sold before development:

(a) excluding PSCA's charges; or

(b) including PSCA's charges?

(4) What is the profit made by PSCA relating to the Donnybrook Project?

(5) What is the profit made by PSCA on the alleged other major projects?

Question 1: Profit made by the River Hills entities

819 In the Joint Matrix, the experts agreed that the profit made by the River Hills entities, calculated on a pre-tax basis excluding any distributions to third-party unit holders of the URH No. 3 trust, the URH No. 4 trust, the URH No. 5 trust and the URH No. 6 trust is:

(a) in relation to question 1(a), $24,349,276 (excluding PSCA's charges); and

(b) in relation to question 1(b), $16,374,784 (including PSCA's charges).

820 The experts did not agree upon the profit made by PSCA as a result of the Bindts Road project, Donnybrook project or other alleged Major Projects. They did not agree on the 'threshold question' of the appropriate methodology to be adopted to allocate PSCA's overheads across the various projects. They also did not agree on the manner in which a number of discrete items identified by them in the Joint Accounting Report should be taken into account when calculating profit.

821 When responding to the Expert Questions, the accounting experts included three summary tables in the Joint Matrix. The first table sets out the impact of different scenarios based on the Cattapan and Wright methodologies. The second table shows the impact of different scenarios based on the methodologies in the Smith report. The third table, prepared by Ms Smith, proceeds on the basis that the correct revenue base for allocating overhead is the revenue that has been recognised in PSCA's accounts which is net of customer refunds. This approach also factors in the existence of negative revenues from other projects in the 2018 financial year. The calculations in the third table reflect the financial impact of excluding each of the disputed normalisation adjustments, including those relevant to the 2018 financial year.

822 Ms Smith contended in her evidence that if it is correct to exclude customer refunds from the calculation of revenue that the methodology used by Mr Cattapan and Ms Wright cannot be applied.

823 Ms Wright expressed the opinion that the third table in the Joint Matrix constitutes new evidence. In Ms Smith's view that is not the case. That is so in her opinion because the third table applies the same logic to allocate overheads to Bindts Road and Donnybrook as Ms Smith used for the other alleged Major Projects both in her report and in the joint report. I agree with Ms Smith.

824 The objective of the Matrix was to assist me to determine financial issues accurately depending on whose evidence I accepted on each of the contentious topics. I now turn to consider those topics in turn.

825 In the Joint Accounting Report, both Ms Wright and Ms Smith made criticisms of the revenue base used in Mr Cattapan's statement.

826 I agree with the criticisms made by Ms Wright and Ms Smith concerning the timing of allocation of refunds by Mr Cattapan. I accept that Mr Cattapan was legitimate in what he sought to achieve in making those adjustments to accord with a 'cash received basis', but I also accept that his approach departed from the relevant accounting standards.

827 To the extent that he did so, it is appropriate to adjust his approach to reflect those criticisms. In particular, it is appropriate to adjust the 2018 financial year, as Ms Smith and Ms Wright contended for the sum of $3,430,245 which should have been accounted for in the 2016 financial year (and not in the 2018 financial year). As stated by Ms Wright in the Joint Accounting Report, the overhead expense should be allocated based on the year in which the receipt was recorded as revenue.

828 I also accept Ms Smith's evidence that customer refunds of $5,820,000 relating to Bindts Road should not be included as part of the Bindts Road project income as was the approach adopted by Mr Cattapan. The total revenue that PSCA derived from the River Hill entities was $7,974,492. To add refunds so as to treat the project income as $13,794,492 is not appropriate. This position is the same in so far as other customer refunds are concerned.

829 I agree with Ms Smith that the correct revenue base for allocating overhead is the revenue recognised in PSCA's accounts, which is net of customer refunds. As explained by Ms Smith in the Joint Matrix, if intercompany customer refunds are added to the accounting revenues, the result is higher revenue for the relevant projects (Bindts Road, Donnybrook and the other alleged Major Projects) so that a proportionately higher quantity of overheads is allocated to the relevant projects, resulting in lower profit calculations for those projects.

830 I prefer the approach taken by Ms Smith to the question of the revenue base. The third table in the Joint Matrix, prepared by Ms Smith, shows the profit that would be calculated on each relevant project based on Ms Smith's revenue methodology. The methodology set out in the first table in the Joint Matrix is not an appropriate basis on which to proceed.

Allocation of overheads based on review of wages or based on revenue

831 Mr Cattapan allocated overheads based on the percentage of revenue derived from projects in particular years. Ms Wright agreed with that approach. Ms Smith adopted an approach based upon wages which she understood were referable to the Bindts Road, Donnybrook and other Major Projects. There were shortcomings in both approaches due to a lack of detail in the available materials. All experts agreed that different approaches to the allocation of overheads were permissible.

832 I prefer the approach adopted by Mr Cattapan and Ms Wright to this topic. There were difficulties with Ms Smith's approach, which depended upon the accuracy of her instructed assumptions concerning the number of persons employed on Bindts Road and other projects, including at a time after Ms Troiano left PSCA.

833 There is no doubt that, contrary to initial instructions provided to Ms Smith by Ms Troiano, persons other than and in addition to Ms Troiano were involved in Bindts Road during the time that she was employed. Other persons were involved in sales and no doubt there were head office expenses that related to Bindts Road, as well as to Donnybrook and the other Major Projects. The approach adopted by Ms Smith did not adjust sufficiently for her changed instructions about the involvement of other staff. Her approach did not make any allowance for head office overheads which Ms Smith accepted would generally form part of overheads to be allocated. The evidence about the persons involved after Ms Troiano left, upon which Ms Smith proceeded based on her instructions, was also not clear or particularly detailed.

834 In closing submissions Ms Troiano contended that the Court should adopt Ms Smith's methodology in respect of Bindts Road and Donnybrook, 'perhaps making allowance for an increased wages bill'. It was suggested that adjustment should be made to increase the wages bill beyond that estimated by Ms Smith by a little less than 50% which would, for example, reflect Mr Phillips' higher salary of $160,000 for a six-month period and Mr Noonan's higher salary. These calculations were not put to the experts when evidence was given in conclave. The submissions acknowledged the approach contended for is 'somewhat rough and ready, but the Court must seek to be fair to both parties'. In being fair to both parties the Court must proceed on the evidence. The whole idea of the Joint Matrix was to obviate the need for 'rough and ready' calculations.

835 The second table in the Joint Matrix was based on Ms Smith's allocation of PSCA overheads based on wages for Bindts Road and Donnybrook. Because I do not consider the wage-based approach to allocation of overheads adopted by Ms Smith to be appropriate, it is not appropriate to proceed by reference to that table.

836 I prefer the approach adopted by Ms Wright which involves the allocation of PSCA overheads based on revenue for all projects.

837 I accept Mr Cattapan's evidence that the interest expense of $1,312,217 recognised in the 2018 financial year accounts is an interest expense paid to external parties and used in the funding of the group.[206] Mr Cattapan's opinion was based on the spreadsheet prepared using information derived from the PSCA MYOB.

838 Ms Wright was instructed that the loan funds to which this interest charge related were applied for the purposes of the group. Mr Cattapan gave evidence that that was his understanding as the accountant for the group.

839 All expert witnesses accepted that if it were the case that, if the money was provided for the use of the group but was unnecessary, it would be appropriate to back out that interest calculation as not truly referrable to the group. Examples that would make such expenditure unnecessary included extensive personal overseas travel by a director.

840 Despite evidence of expensive motor vehicles driven by Mr Voci which were separately leased (which no doubt would have incurred some type of interest), there is no evidence of such unnecessary expenses. As a result, there is no proper basis to find that the loans in question and the associated interest cost was anything other than interest incurred in relation to the activities of the group.

841 Ms Smith proceeded on the basis that loans from external parties appeared to have been primarily used to make loans to other related parties and noted that no interest income appeared to have been charged on the loans made by PSCA to those parties. In the view of Ms Smith, it was not reasonable to allocate any further interest expense (other than what is reported in the financial statements on the hire-purchase debt) as there is no evidence that the external party loans were used to fund the projects.

842 Although the accounts prepared by Mr Cattapan and others at his firm were not audited, I consider it appropriate to proceed on the basis of his evidence. I consider it appropriate to allow the interest cost and to approach the question of interest charges in accordance with his evidence and that of Ms Wright. I do not consider the adjustment proposed by Ms Smith in relation to interest expense should be made. I prefer to proceed on the basis of Ms Wright's evidence on this issue.

843 These items comprise adjustments to the overhead expenses of PSCA which Ms Smith considers should be made so as to exclude certain expenses when determining the overhead allocation to projects. The items that are identified comprise donations, fines, accounting expenses and penalty expenses. In the view of Ms Wright and Mr Cattapan these items should be included in overheads.

844 I agree with Ms Smith that donations, including (as was the evidence) donations made to the secondary school attended by Mr Voci's daughter, should not be included. The same is the case so far as fines and penalties and 'abnormally high' accounting expenses are concerned. In relation to these items I prefer and proceed on the basis of Ms Smith's evidence.

845 In the absence of other information about bad debts, Mr Cattapan and Ms Wright proceeded on the basis that bad debt expenses should be included in overheads. As there is no evidence of bad debts in relation to Bindts Road or the other projects in respect of which Ms Troiano makes her claims, I agree with Ms Smith that it is not appropriate to include bad debts in overheads.

846 I agree with the views expressed by Ms Smith that, in circumstances where related party transactions are substantial, and where the Court has been provided with no evidence that explains why amounts paid have been rounded (or indeed otherwise as to the basis of the amounts paid), that it is appropriate to remove the impact of related party transactions when looking to calculate profit in relation to Bindts Road and Donnybrook.

847 Related party transactions which are itemised the third table in the Joint Matrix include bonus payments, commissions and intercompany salaries.

848 The final issue which arose regarding the allocation of profits attributable to PSCA relates to the accounting treatment of SOW fees charged by PSCA.

849 In closing submissions Ms Troiano submitted that the SOW fees charged by PSCA to the River Hills companies could not be considered a genuine project cost. Amongst the matters relied on was a lack of detailed pricing in the SOW agreements, the round figures of the total charges and the fact that the subdivisions that PSCA promised to deliver were never delivered and most of the services listed in the SOW agreements were never provided.

850 Ms Troiano drew attention to the refund clause in the SOW, allowing PSCA to claim a refund should it not be successful in obtaining permits for dwellings, noting that no permit was ever obtained by PSCA for any of the Bindts Road properties. On this basis, Ms Troiano contended that the PSCA fees could not be considered a genuine project cost. In addition, Ms Troiano relied on evidence given by Ms Smith that the SOW fees, which totalled $7.9 million, appeared high. It was further submitted that there was no evidence of SOW agreements between PSCA and River Hills 1 and River Hills 2, a proposition not accepted by the defendants, who drew attention to entries evidencing those charges in the MYOB records.

851 I do not agree with Ms Troiano's submission that the SOW fees charged to the River Hills companies were not a genuine project cost. The entry by the River Hills companies into agreements with PSCA and the payment of fees by those companies to PSCA was consistent with PSCA's business model. It was also consistent with the 14 November 2014 agreement. That agreement expressly provided that if a 'particularly large Major Project' eventuates (such as Bindts Road) then the services in question would be provided by PSCA or a new company of which 75% of the equity and profit share would be held by PSCA. As earlier discussed, it was expressly agreed that the charges to be paid in respect of any such project would apply 'from the outset'. The MYOB accounting entries support the fact of the PSCA changes. Ms Troiano was aware during the life of the projects that such costs were being incurred. As submitted on behalf the defendants, there was no refund guarantee in place in the case of the agreements relating to Bindts Road.

852 While the level of fees may have appeared high to Ms Smith, I do not accept that she had relevant expertise in relation to that issue. There is no reason to proceed other than on the basis of the SOW fees charged by PSCA in respect of Bindts Road. It follows, contrary to Ms Troiano's submissions that project profitability should be assessed taking into account the PSCA charges.

853 Reproduced below is the third table from the Joint Matrix, prepared by Ms Smith.

854 This table takes as its starting point Ms Smith's revenue methodology and revenue base, as I agree are the correct starting point. The table helpfully shows the consequences of the application of that methodology and the monetary outcome depending upon the view taken of the various expenses referred to in the table when it comes to allocating overheads.

855 When it comes to calculate the profit made by PSCA as earlier discussed, the interest expense should be allowed but the other items (bonus payments, commissions, bad debt, donations, fines and penalties, accounting and intercompany salaries) should not be taken into account.

856 As I interpret the table, reproduced above, allowing the interest expense but not other items has the consequence that the profit made by PSCA referable to Bindts Road is $2,679,338. This method shows the profit based on Ms Smith's methodology but adjusted to allow for the interest expense as calculated by Ms Wright.

857 When it comes to the profit made by PSCA relating to the Donnybrook project, the profit, adopting the same approach to the contested items, is $270,258.

858 When it comes to the profit made by PSCA relating to the eight other major projects, once again, adopting the same approach to contested items, the profit is $1,103,387.

Question 3: profit that would have been derived from the sale of Donnybrook

859 On this issue of the value of Donnybrook as at December 2018 and the question of what adjustment should be made on account of the condition requiring six lots to be provided to the vendor, Ms Troiano relied upon the evidence of Mr Brown and the defendants relied upon the evidence of Mr Papworth.

In the Joint Expert Matrix, Ms Smith produced a table that showed the profit that would have been derived from the sale of Donnybrook, taking into account the competing views about the appropriate allowance for the six lots expressed by Mr Brown and Mr Papworth. This table is reproduced below:

861 For the reasons earlier discussed, the appropriate allowance to make for the six blocks is $1.2 million.

862 Ms Smith acknowledged that her profit assessment does not take into account legal fees or due diligence costs but did not expect those costs would have a material impact on her profit calculations. She considered that settlement risks and finance risks are normally taken into account where the value of the property is based on its current market value.

863 I agree with Ms Smith that settlement risks and finance risks are not matters that are relevant to calculating market value. As a matter of normal practice, legal fees and sale commissions are matters taken into account when calculating actual loss but not when determining market value.

864 The gross profit referrable to Donnybrook as at 17 December 2018 is $9,522,000 without PSCA charges and $8,718,364 with PSCA charges as shown in the table reproduced above.

865 For the reasons discussed at paragraphs 352 - 362 the parties to the contract are PSCA and Ms Troiano. Mr Voci is not a party to the contract.

866 As found at paragraph 364, the contract is constituted by the 14 November 2014 agreement.

867 The non-controversial terms of the 14 November 2014 agreement are identified in the pleadings as discussed at paragraphs 365 - 366. The contested issues of construction of the terms of the agreement are discussed at paragraphs 367 - 415.

868 The term alleged by Ms Troiano that she was entitled to a 25% equity and profit share in underlying projects is not a term that arises on the proper construction of the 14 November 2014 agreement. Nor is it a term that is to be implied. To imply the term alleged would be inconsistent with the written agreement. There is no proper basis to do so having regard to the criteria in BP Refinery (Westernport) Pty Ltd v Shire of Hastings.[207]

869 The defendants allege, and it may be accepted, that it was an implied term of the 14 November 2014 agreement that Ms Troiano owed a duty of fidelity to PSCA as an incident of her employment. It is neither necessary nor appropriate to imply a term concerning confidentiality. That topic is comprehensively addressed in clauses 14 and 17 of the 14 November 2014 agreement.

870 The defendants allege an implied term that Ms Troiano's entitlement to profit share or equity was subject to her continuing her employment with PSCA. It is true to say that while Ms Troiano continued in her employment, she had an entitlement to profit share and equity under the 14 November 2014 agreement. However, whether or not she had a continuing entitlement to such equity or profit share following termination depends upon the circumstances of that termination. The question of repudiation is addressed separately below.

Is the contract uncertain or an agreement to agree and therefore void?

871 For the reasons discussed at paragraphs 370 - 371 and 374 - 403**,** neither the whole of the 14 November 2014 agreement nor the final sentence in the Remuneration Section is uncertain or an agreement to agree.

872 Paragraphs 11A to 11E of the TFASC assert a claim for rectification based upon an asserted 'common intention' that Mr Voci was intended to be a party to the 14 November 2014 agreement and, in particular, to the final sentence in the Remuneration Section. The relief sought is that the MPD Agreement be rectified to add Mr Voci as a party.