Plaintiff v Defendants

For the First Defendant and Plaintiffs by Counterclaim

1 Anton Billis is an 80 year old Croatian-born Western Australian gold prospector. He arrived in Perth in the 1980s intending to invest in real estate. He bought a gold mine instead. He is now the chairman of the ASX listed minerals exploration companies Rand Mining Limited and Tribune Resources Limited. He is also the first defendant by counterclaim and sole director and shareholder of the plaintiff/second defendant by counterclaim, Resource Capital Limited ('RCL'), a company incorporated in the Marshall Islands and of Lake Grace Exploration Pty Ltd ('Lake Grace'), the fourth defendant.[1]

2 In the late 1980s or early 1990, Mr Billis met the first defendant and first plaintiff by counterclaim, Michael Giovinazzo. The two became close friends. Mr Billis was the best man at Mr Giovinazzo's wedding. To celebrate that event, Mr Billis gifted Mr Giovinazzo a Nissan Patrol motor vehicle.

3 In the early 1990s, Mr Billis introduced Mr Giovinazzo to the operator of an old goldmine in Omeo, Victoria (the 'Mt Wills Goldmine'). The gold mine was purchased by Mr Giovinazzo's wife, Karen Bidstrup, and Mr Giovinazzo and Ms Bidstrup moved to Victoria in around 2003. Later, ABA Resources Pty Ltd ('ABA Resources') acquired a number of mining interests including the Mt Wills Goldmine. In return for putting the deal together, Mr Giovinazzo was employed as ABA Resources' business development officer. ABA Resources is a wholly owned subsidiary of a cooperative, Australian Business Advancement Cooperative Ltd ('ABA') and shares in ABA were issued and registered in Ms Bidstrup's name.

4 Mr Giovinazzo is the sole director and shareholder of the second plaintiff by counterclaim, Omeo Gold Pty Ltd ('Omeo Gold'). Mr Giovinazzo and Omeo Gold are referred to collectively as the Giovinazzo Parties.

5 Records maintained by the Australian Securities and Investments Commission ('ASIC'), also show him as the sole director of the third defendant/third defendant by counterclaim, Golden Plains Resources Pty Ltd ('GPR'), purportedly having been appointed on 30 June 2021. At the time of his appointment, GPR had 1,000 ordinary shares on issue of which 990 were registered in the name of RCL (the 'GPR Shares'). The remaining 10 shares were registered in the name of the second defendant, Tarina Lee Holdings Pty Ltd ('TLH'), a company which has now been deregistered. Prior to its deregistration TLH was associated with Tarina Pendergast, a former friend and colleague of Mr Giovinazzo. GPR and TLH were not represented at the trial.

6 On 19 July 2022, Mr Giovinazzo caused GPR to issue 9,000 new shares at $1 per ordinary share, which were allocated as to 8,910 shares to Mr Giovinazzo and 90 shares to TLH. According to Mr Giovinazzo, the shares were issued following his exercise of options conferred by an employee stock option agreement entered into between GPR and Mr Giovinazzo dated 3 August 2021 (the 'Employee Stock Option Agreement').

7 RCL contends that Mr Giovinazzo has conducted the affairs of GPR in an oppressive manner within the meaning of s 232 of the Corporations Act 2001 (Cth) (the 'Act') by:

(a) purporting to appoint himself as a director of GPR on 13 July 2021 with effect from 30 June 2021 in a manner contrary to GPR's constitution and wrongfully signing a resolution to that effect on behalf of RCL;

(b) purporting to issue the 9,000 shares in GPR of which 8,910 were issued to Mr Giovinazzo (the 'Purported 19 July Share Issue') in a manner that was not permitted by GPR's constitution and the effect of which was to dilute RCL's then existing shareholding in GPR from 99% of the total issued shares to 9.9%; and

(c) purporting to cause GPR to enter into agreements with:

(i) Mr Giovinazzo in the form of the Employee Stock Option Agreement; and

(ii) Omeo Gold comprising a series of loan agreements pursuant to which GPR is said to have borrowed funds from Omeo Gold (the 'GPR/Omeo Gold Loan Agreements') at interest rates ranging from 20% to 21.82% and granting security to Omeo Gold over all of GPR's present and after acquired property.

8 GPR is a significant shareholder in the ASX listed exploration company Rimfire Pacific Mining NL ('Rimfire') which has projects situated in or around Fifield, Broken Hill and Avondale in New South Wales.

9 In addition to its shareholding in Rimfire, GPR is also party to agreements with Rimfire relating to Rimfire's exploration projects. The agreements comprise:

(a) three agreements dated 1 May 2020 relating to Rimfire's 'Fifield Project', being a subscription agreement ('Fifield Subscription Agreement'), a joint venture agreement ('Fifield JV Agreement') and an earn-in agreement ('Fifield Earn-In Agreement') (together the 'Fifield Agreements'); and

(b) an agreement dated 24 June 2021 in the form of an earn-in agreement in respect of a separate project in Avondale ('Avondale Earn-In Agreement'),

10 At its core, this case concerns a dispute between Mr Billis and Mr Giovinazzo over control of GPR and thus control of GPR's shareholding in Rimfire and its interest in the Rimfire Agreements.

11 The question of control depends on whether the GPR Shares are owned absolutely by RCL, or alternatively whether those shares are held by RCL on trust for Mr Giovinazzo. RCL contends that it agreed to fund GPR's obligations under the Fifield Agreements on the basis that it was issued with a controlling interest in GPR which occurred by way of the issue of the GPR Shares. The Giovinazzo Parties contend that Mr Billis agreed to lend funds to Mr Giovinazzo for Mr Giovinazzo to on-lend to GPR on terms which included security over shares which would be issued to Mr Giovinazzo by GPR. The GPR Shares would be registered in RCL's name but held on trust for Mr Giovinazzo, and the loans made by Mr Billis to Mr Giovinazzo could be repaid by Mr Giovinazzo at which time the legal interest in the GPR Shares would be transferred to Mr Giovinazzo.

12 The resolution of these competing characterisations largely dictates the outcome of RCL's oppression claim and determines the fate of the counterclaim brought by the Giovinazzo Parties where they seek declarations, inter alia, that RCL holds the GPR Shares on trust for Mr Giovinazzo as security for advances provided by RCL to Mr Giovinazzo and that Mr Giovinazzo is entitled to redeem the GPR Shares upon repayment of the advances.

13 Mr Giovinazzo accepts that if RCL owns the GPR Shares absolutely, the Purported 19 July Share Issue cannot be sustained and GPR will not be bound by the terms of the Employee Stock Option Agreement.

14 Ancillary aspects of the relief that RCL seeks, such as orders to the effect that the affairs of GPR should be conducted on the basis that Mr Giovinazzo does not hold office as a director or secretary and that two other nominees of RCL, Oliver Douglas and Roland Berzins, are directors of GPR and that the benefits of the GPR/Omeo Gold Loan Agreements must be the subject of an order for an account, raise additional issues. However, the question of the beneficial ownership of the GPR Shares remains the central issue. The resolution of this controversy turns on findings of fact to be made in light of the oral evidence given at trial by Mr Billis, Mr Giovinazzo and Ms Pendergast and, to a lesser extent Richard Davenport, a principal of the firm Davenport Taylor Accountants, GPR's accountant since about mid-2021, and the documentary evidence tendered at trial.

15 Although the question of whether RCL holds the GPR Shares absolutely or on trust for Omeo Gold is hotly disputed, it is common ground that in the period from 21 September 2020 to 23 May 2022 funds totalling $3,815,000 were transferred from either RCL or Lake Grace (on RCL's case as agent for RCL) either directly to Rimfire for GPR's benefit or to GPR for onforwarding to Rimfire so as to facilitate performance of GPR's obligations under the Rimfire Agreements.

(a) 24 September 2020 - $580,000 paid by RCL to Rimfire;

(b) 6 November 2020 - $300,000 paid by Lake Grace to Rimfire;

(c) 25 January 2021 - $300,000 paid by Lake Grace to Rimfire;

(d) 29 April 2021 - $300,000 paid by Lake Grace to Rimfire;

(e) 10 May 2021 - $330,000 paid by RCL to Rimfire;

(f) 21 June 2021 - $100,000 paid by Lake Grace to GPR;

(g) 21 July 2021 - $175,000 paid by Lake Grace to GPR;

(h) 25 August 2021 - $300,000 paid by Lake Grace to Rimfire;

(i) 8 February 2022 - $250,000 paid by Lake Grace to GPR;

(j) 8 February 2022 - $300,000 paid by Lake Grace to Rimfire;

(k) 7 April 2022 - $630,000 paid by Lake Grace to Rimfire;

(l) 31 May 2022 - $250,000 paid by Lake Grace to GPR.

17 It is also common ground that Lake Grace lent Mr Giovinazzo $14,600 in September 2019 and $20,000 in June 2020 for purposes unrelated to GPR.

18 It is also common ground that on 19 May 2020, Lake Grace funded the acquisition by GPR of 75,000,000 shares in Rimfire acquired for $240,000 and that Lake Grace funded the acquisition by GPR of a further 10,000,000 shares on 5 August 2020 acquired for $50,385.

19 GPR's annual financial statements show that as at 30 June 2020, Mr Giovinazzo and Omeo Gold had advanced $106,745 (being loans by Mr Giovinazzo in the amount of $42,745 and Omeo Gold of $64,000) to GPR and that as at 30 June 2021, the loans made by Mr Giovinazzo and Omeo Gold had increased by $148,858 to $255,603 (comprising loans by Mr Giovinazzo in the amount of $138,403 and Omeo Gold of $117,200).

20 Both parties submitted that the appropriate approach to determining the factual controversy is to place primary reliance on the objective factual surrounding material and the inherent commercial probabilities, together with the documentation tendered in evidence, and make inferences drawn from the documentary evidence and known or probable facts.[2]

21 This approach also finds support from the judgment of Lord Goff in Grace Shipping Inc v C F Sharp & Co (Malaya) Pte Ltd[3] where in delivering the judgment of the Privy Council, his Lordship endorsed an earlier passage from the House of Lords in Armagas Ltd v Mundogas SA (The Ocean Frost)[4] where the following was stated:

Speaking from my own experience, I found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witness's motives and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.[5]

That observation is, in their Lordships' opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence.[6]

22 Both parties sought to rely upon and tendered a significant body of documentary evidence, arguing that the documentary evidence was supportive of the oral accounts given by their respective principal witnesses.

23 Accordingly, it is helpful to set out the documentary and oral evidence, in largely chronological order, and in the context of the parties' pleaded allegations before undertaking the necessary fact-finding.

24 Mr Billis gave evidence on behalf of RCL, along with Ms Pendergast who was subpoenaed to give evidence. Mr Giovinazzo, and Mr Davenport gave evidence on behalf of the Giovinazzo Parties.

25 In the section that follows, reference is also made to the amended statement of claim dated 20 February 2023 (the 'ASOC'), the amended defence to the ASOC and counterclaim dated 7 March 2023 (the 'Defence and Counterclaim') and the reply and defence to counterclaim (the 'Reply') dated 14 December 2022.

26 At some stage in September 2019, certainly prior to 11 September 2019, Mr Giovinazzo asked Mr Billis if he could borrow some money to pay some legal bills in the United States. According to Mr Giovinazzo, the legal bills were in connection with Apple iSports, Inc ('Apple iSports').

27 On 11 September 2019, Mr Giovinazzo emailed Mr Billis thanking him for his help and saying that he would 'send (a) copy of transfers when done and (a) copy of share certificates when I receive them'. Mr Giovinazzo provided bank account details for Omeo Gold.

28 The next day, Mr Billis arranged for funds to be transferred from Lake Grace to Omeo Gold in the amount of $14,600.

29 There was no substantial difference in the oral evidence of Mr Billis and Mr Giovinazzo in relation to this transaction.

30 GPR was incorporated on 22 October 2019. Its 10 issued shares were held by Mr Giovinazzo and Ms Pendergast each of whom held 5 shares. According to Mr Giovinazzo, the decision to set up GPR was a joint one between himself and Ms Pendergast and the two of them discussed that Ms Pendergast was to be the managing director and Mr Giovinazzo was to be the chief executive officer, and that Mr Giovinazzo would fund the company in its entirety, which included Ms Pendergast's wages and all of the other company expenses. GPR was set up to look for investment or joint venture opportunities. Mr Giovinazzo explained that he had left ABA Resources in March 2019 and Ms Pendergast had left in November 2019 but their discussions as to the setting up a company together took place in July 2019.

31 Mr Giovinazzo said that from the time GPR was established he spent at least five to six days a week working in the company whilst Ms Pendergast spent about three and a half days per week working for the company.

32 According to Ms Pendergast, it was Mr Giovinazzo's decision to start a new company and he asked that she be the director because he was unable to act as a director as he had been in jail. She said that her role in GPR was to do what '[Mr Giovinazzo] asked her to do'.

33 In cross-examination, Ms Pendergast confirmed that Mr Giovinazzo had offered her a job at ABA Resources in about 2018 and that whilst working for ABA Resources she performed administrative work and looked after accounts receivable before becoming Mr Giovinazzo's executive assistant.

34 In late 2019, Gerry Connelly, a sharebroker, contacted Mr Giovinazzo and said that he had been approached by Craig Riley, Rimfire's chief executive officer. Rimfire needed capital and was also interested in joint ventures. Mr Giovinazzo said that he contacted Mr Riley in early January 2020. He and Ms Pendergast had numerous meetings with Mr Riley in Wodonga culminating in an agreement to enter into an earn-in agreement and then subsequently a joint venture relating to the Fifield site. Mr Giovinazzo said entry into the Fifield Agreements was dependent on GPR acquiring 75 million shares in Rimfire for $240,000.[7]

35 The arrangements referred to by Mr Giovinazzo with Rimfire were subsequently documented in the Fifield Agreements which as set out above included:

(a) the Fifield Subscription Agreement by which GPR must subscribe for 75 million fully paid ordinary shares in the capital of Rimfire for $240,000 and Rimfire must issue the shares to GPR free from any encumbrances;

(b) the Fifield Earn-In Agreement by which, in return for the provision of funding, GPR would acquire an interest of 50.1% in a mining plant, land and mining permits, land access agreements, information, records and the like comprising the Fifield Project; and

(c) the Fifield JV Agreement by which GPR and Rimfire agreed to form an unincorporated joint venture and agreed to explore, evaluate and ultimately operate mines and other facilities and equipment at the Fifield Project area together once the commitments under the Fifield Earn-In Agreement had been met.

36 The Fifield Earn-In Agreement contained conditions precedent which relevantly included GPR or an affiliate of GPR subscribing for:

(a) $240,000 worth of fully paid ordinary shares in the capital of Rimfire;[8]

(b) GPR paying Rimfire a non-refundable deposit in cash in the amount of $66,000 (the 'Deposit').[9]

37 The Fifield Earn-In Agreement specified the earn-in requirements that needed to be satisfied before the earn-in interest vested in GPR. The requirements comprised, inter alia, payment of an administration fee of $300,000 per annum for three years (in respect of which the Deposit would be credited against the first year administration fee).[10] In addition to the payment of the administration fee GPR was required to pay for exploration expenditure of $3,600,000 at a provisional rate of $1,200,000 per contract year.

The Deposit and the acquisition of the 75,000,000 Rimfire shares

38 Omeo Gold deposited $66,000 into GPR's bank account between 30 April 2020 and 4 May 2020 which enabled GPR to pay the Deposit to Rimfire.

39 On 19 May 2020, Mr Giovinazzo emailed Mr Billis providing Rimfire's bank account details. The covering email attached an off-market share transfer dated 15 May 2020 which provided for the transfer by GPR of 75 million ordinary fully paid shares in Rimfire. The consideration for the transfer was not specified. Nor was the name of the transferee. Mr Giovinazzo's email advised that Mr Giovinazzo would express post the original of the share transfer to Mr Billis that day and asked that Mr Billis provide his postal details by email. The email further advised that Mr Giovinazzo would repay $250,000 by 29 May 2020 to Mr Billis' nominated account and if the money had not been received by then, Mr Billis needed to transfer the shares to 'your entity' by lodging the off-market transfer with Gerry (Mr Connelly) who was aware of the transaction as he was Rimfire's broker. Mr Giovinazzo's email concluded by saying that Tarina (Ms Pendergast) and Mr Giovinazzo greatly appreciated Mr Billis' help.

40 On 19 May 2020, $240,000 was transferred from a bank account in the name of Lake Grace to a bank account in Rimfire's name. WhatsApp messages passing between Mr Giovinazzo and Mr Billis on 19 May 2020 convey Mr Billis telling Mr Giovinazzo that the money was in the account. This followed a message in the form of a photo sent by Mr Giovinazzo of an express post bag confirming that the share transfer had been posted to Lake Grace care of Mr Billis.

41 Whilst there is a degree of consistency between the accounts of Mr Billis and Mr Giovinazzo as to the discussions which preceded this transfer, there is some difference at the margin. According to Mr Billis, he knew little about Rimfire at this stage but had been approached by Mr Giovinazzo who said he had been offered a shareholding in Rimfire at a discounted price as Rimfire had little capital. Mr Giovinazzo asked Mr Billis if he could pay for it and in return signed share transfer forms would be held by Mr Connelly, and if the $240,000 had not been repaid by Mr Giovinazzo to Mr Billis by 29 May 2020, Mr Billis could contact Mr Connelly and take the signed transfer forms (in effect procuring the registration of the Rimfire shares in the name of an entity controlled by him).

42 According to Mr Giovinazzo, he and Mr Billis had first spoken about GPR's interest in the joint venture agreement in respect of the Fifield land in March 2020. On Mr Giovinazzo's account, Mr Billis asked Mr Giovinazzo how he intended to fund the joint venture, to which Mr Giovinazzo replied by telling Mr Billis that he owned various shares in ABA and Apple iSports that he was hoping to sell and that after the first year he would otherwise sell down his interest in GPR, which he described as a 'normal way of doing things in the mining industry'. Mr Giovinazzo said that Mr Billis told him that the Apple iSports shares would be more valuable, he should hold on to them and that Mr Billis had surplus cash and was prepared to assist Mr Giovinazzo. Mr Billis denied this.

43 Subsequently, according to Mr Giovinazzo, in May 2020, following the signing of the Fifield Agreements and the announcement of the joint venture to the market, Mr Billis contacted Mr Giovinazzo enquiring as to how he would meet the joint venture commitments. Mr Giovinazzo said that he was looking to sell his ABA shares for $250,000 by the end of the month to which Mr Billis replied by saying that Mr Giovinazzo would need the money before then and that he was prepared to loan the funds to Mr Giovinazzo as long as Mr Billis held security. Mr Billis said he wanted an off-market transfer signed by GPR for the 75 million shares which he would hold. Mr Giovinazzo said that was fine.

44 It is common ground that Mr Giovinazzo has not repaid the $240,000,[11] nor has Mr Billis exercised any security rights by lodging the blank transfer forms providing for the transfer of the shares registered in GPR's name into a name of any other entity. It is also common ground that no demand for repayment of the loan has occurred.

45 On 26 June 2020, Lake Grace transferred $20,000 into Omeo Gold's bank account. Omeo Gold's bank account details had been provided by Mr Giovinazzo to Mr Billis via a WhatsApp message. Once again, there is a degree of consistency about the respective accounts of Mr Billis and Mr Giovinazzo which preceded this transfer. In cross-examination, Mr Billis said that Mr Giovinazzo called him and asked for money and he gave it to him. Mr Billis could not remember what the money was to be used for. He said that Mr Giovinazzo originally asked for $16,000-$17,000 but the parties rounded up the amount to $20,000 to adjust for the payment of the 990 shares in GPR which were later registered in RCL's name. Mr Giovinazzo's account was largely to the same effect, save that he made no mention of the discussion about the rounding up to $20,000 which is implicitly denied by Mr Giovinazzo given his account of the conversations concerning that matter. In any event, Mr Giovinazzo accepted that he called Mr Billis because he was short of funds and Mr Billis said he would lend him the money. Mr Giovinazzo could not recall the exact purpose of the funds but thought it had something to do with Apple iSports.

46 On 5 August 2020, Lake Grace transferred $50,385 to the account of the sharebroker, Morrison Securities.

47 It is common ground that this related to the acquisition by GPR of a further 10 million shares in Rimfire at a price of 0.5 cents per share.[12] As was the case with the subscription for the original 75 million shares, the funding by Lake Grace of this acquisition by GPR of Rimfire shares was supported by security in the form of an executed transfer, completed by Ms Pendergast on behalf of GPR, which nominated GPR as the transferor with respect to 10 million shares in Rimfire. The consideration was specified as $50,385 although the transferee's details were left blank.

48 In cross-examination, Mr Billis said that he advanced $50,385 to fund another 10 million shares in Rimfire for GPR and that he presumed that Lake Grace transferred the funds to Morrison Securities who was the broker for GPR and that the advance was secured in the same way as the other advances. Mr Billis said he had 'never seen the blank transfer form proffered as security where we understood that its purpose was to act as security'.

49 Again, Mr Giovinazzo's account does not differ in any significant respect from Mr Billis' account, although Mr Giovinazzo provided more detail. According to Mr Giovinazzo, GPR had made a purchase on the market for 10 million shares in Rimfire which GPR was not able to fund. As a result, he called Mr Billis and asked if Mr Billis was prepared to loan the funds to him. According to Mr Giovinazzo, Mr Billis was willing to do so as long as he received security on the same basis as the $240,000 subscription payment which involved the provision of blank transfer forms. Mr Giovinazzo said that he was happy to do this.

50 It is common ground that on 21 September 2020, Rimfire requested GPR pay $580,000 with respect to the administration and first quarterly annual exploration expenditure payments due under the Fifield Earn-In Agreement which totalled $250,000 and $330,000 respectively.

51 It is also common ground that on 24 September 2020, RCL transferred $580,000 to Rimfire with the reference 'JV cash call'.

52 It is the circumstances which precede this payment which lie at the heart of the critical disputed issue in this proceeding.

53 According to RCL's Reply, the payment occurred following a telephone conversation on or around 3 August 2020 between Mr Giovinazzo and Mr Billis to the following effect:[13]

(a) Mr Giovinazzo asked to borrow on behalf of GPR:

(i) immediately, approximately $50,000 to enable GPR to acquire a further 10 million shares in Rimfire; and

(ii) on an ongoing basis over the following three years, approximately $4 million to enable GPR to make payments to Rimfire under the Rimfire Agreements that GPR had negotiated and agreed with Rimfire;

(b) Mr Billis said, on behalf of RCL, that he would be prepared for RCL to advance (or to direct Lake Grace to advance) these funds to GPR (or to Rimfire directly at the direction of GPR) on condition that RCL owned the majority of the shares in, and had control of, GPR;

(c) Mr Giovinazzo agreed, on behalf of GPR, that in return for RCL agreeing to advance (or to direct Lake Grace to advance) funds to GPR, Mr Giovinazzo would cause 990 new shares in GPR to be issued to RCL at an issue price of $1 per share; and

(d) Mr Giovinazzo and Mr Billis agreed, on behalf of GPR and RCL respectively, that rather than RCL separately transferring $990 to GPR for the issue of the 990 shares, Mr Giovinazzo would transfer $990 to GPR's bank account and that the amount of $990 would be set-off against the balance owing under the $20,000 loan (that is the balance of the $20,000 loan would reduce to $19,010).

54 The Giovinazzo Parties' account as set out in the Defence and Counterclaim is to the following effect:[14]

(a) on or around 15 September 2020, Mr Billis, RCL, Mr Giovinazzo, Omeo Gold and GPR entered into a loan agreement pursuant to which Mr Billis agreed to lend Mr Giovinazzo funds which were to be on-lent by Mr Giovinazzo to GPR or applied to meet payment obligations of GPR (the 'Loan Agreement'). The Loan Agreement was constituted by conversations between Mr Billis and Mr Giovinazzo on or around 15 September 2020, and between Mr Giovinazzo and Ms Pendergast (on behalf of GPR) on or around 15 and 16 September 2020;

(b) there were terms of the Loan Agreement that:

(i) Mr Billis agreed to advance funds, on demand, to Mr Giovinazzo or at his direction which funds were to be used by Mr Giovinazzo to meet GPR's obligations to pay cash calls under the Fifield Earn-In Agreement;

(ii) Mr Giovinazzo agreed to on-lend the advances to GPR, or apply them for GPR's benefit, for the purpose of meeting GPR's obligations to pay cash calls under the Fifield Earn-In Agreement;

(iii) in lieu of the payment of interest, in return for the advances of funds by Mr Giovinazzo to GPR, GPR agreed to issue to Mr Giovinazzo or his nominee 990 shares in GPR for the price of $1 per share;

(iv) Mr Giovinazzo agreed to nominate RCL as the holder of the GPR Shares, those shares to be held by RCL on trust for Mr Giovinazzo as security for the advances;

(v) Mr Giovinazzo agreed to cause Omeo Gold to provide further security for the advances by the execution of a transfer form in favour of RCL in respect of 7 million shares in ABA held by Omeo Gold (the 'Transfer Form');

(vi) Mr Billis and RCL would have no recourse to the Transfer Form or the GPR Shares including by registering that form or by exercising any of the rights attaching to the GPR Shares, in the absence of any default under the Loan Agreement;

(vii) the advances were repayable by Mr Giovinazzo to Mr Billis on the giving of reasonable notice by Mr Billis;

(viii) upon the repayment of the advances by Mr Giovinazzo to Mr Billis, Mr Billis and RCL were to take all necessary steps to:

A rescind the Transfer Form; and

B cause 990 of the GPR Shares to be transferred to Mr Giovinazzo;

(ix) ensure GPR was liable to repay to Mr Giovinazzo the amounts on-lent by Mr Giovinazzo or applied to GPR's benefit, on the giving of reasonable notice by Mr Giovinazzo.

(c) on 15 September 2020, Mr Giovinazzo and Mr Billis executed the Transfer Form;

(d) on or around 16 September 2020:

(i) Mr Giovinazzo paid the amount of $990 to GPR;

(ii) GPR issued 990 shares in the name of RCL; and

(iii) Ms Pendergast caused the records of GPR held at ASIC to be updated to reflect the issue of 990 shares to RCL with such shares not being held beneficially by RCL.

55 Mr Billis' oral evidence-in-chief about this topic was brief. When he was asked as to why RCL was issued with 990 shares out of the total 1,000 shares on issue, he answered that Mr Giovinazzo 'came to us and said we can get a joint venture on the ground' and asked if Mr Billis could assist. He said that Mr Giovinazzo told him that about $4 million over three to four years would have to be spent. Mr Billis said he could (assist) and he was happy to go into the joint venture but had to have control of GPR.

56 He said that he asked Mr Giovinazzo whether he needed to send him the money for the 990 GPR Shares. Mr Giovinazzo said no, he had enough money in the Omeo Gold account and Omeo Gold also owed Mr Billis money so he would deduct it from the amount owed.

57 When Mr Billis was asked whether he could recall any discussion about why it was 990 shares out of 1,000 shares as distinct from some other amount, he answered, 'no, it rounds it up to 1,000 shares in issue in a company'.

58 According to Mr Giovinazzo, he attended a joint venture meeting in early September 2020 which resulted in two cash calls totalling $580,000. He said that he spoke to Mr Billis during the week of 7 September 2020 and informed him about the cash calls. Mr Billis said, 'you will obviously be requiring cash', to which Mr Giovinazzo agreed.

59 Mr Giovinazzo said that he spoke again with Mr Billis on 14 September 2020 and Mr Giovinazzo told Mr Billis that the cash calls would need to be paid by the end of September. Mr Giovinazzo said he asked Mr Billis if he would be in a position to advance the funds. Mr Billis agreed but said he wanted security. Mr Giovinazzo replied by offering 7 million shares in ABA.

60 Mr Giovinazzo said he offered to replace the 7 million shares in ABA with shares in Apple iSports because Mr Billis had told him he would prefer the Apple iSports shares but they were yet to be issued. Mr Billis said he would take that security.

61 Mr Giovinazzo said that later that evening he spoke with Mr Billis again, and Mr Billis now said that he required shares in GPR as security as well. Mr Giovinazzo said that he would issue 90 new shares in Mr Giovinazzo's name which would result in 100 shares on issue. Mr Billis responded by telling Mr Giovinazzo that he (Mr Giovinazzo) was in a vulnerable position as a shareholder and that he should issue 990 shares to RCL. Mr Giovinazzo said he told Mr Billis that this would only be done if the shares were held on trust for Mr Giovinazzo because it was Mr Giovinazzo's company and there was a change of control trigger in the Fifield Earn-In Agreement. Mr Giovinazzo said that Mr Billis did not say anything in response.

62 Mr Billis denied that Mr Giovinazzo ever told him that the shares could not be placed in RCL's name because of the change of control provision in the Fifield Earn-In Agreement and said that such a change of control provision in such agreements would be 'very unusual'. Although he further said that he had not seen the Fifield Agreements at that stage because Mr Giovinazzo would not provide him with a copy.

63 According to Mr Giovinazzo, Mr Billis also said that if the 990 shares were issued, Mr Giovinazzo could sell some of those shares to repay Mr Billis. Mr Giovinazzo said he agreed with that course.

64 Mr Giovinazzo said he concluded the discussion with Mr Billis by saying that he would organise the issue of shares being held on trust for Mr Giovinazzo, make arrangements to transfer $990 from his personal account to the GPR account to pay for the share issue and provide share transfer forms for the ABA shares.

65 Mr Giovinazzo said that he went to Ms Pendergast's house at 1:30pm on 16 September 2020. This was after Mr Giovinazzo had emailed Ms Pendergast at 7:34am on 16 September 2020 in the terms referred to below. Mr Giovinazzo said that when he arrived at Ms Pendergast's house they worked together to issue the shares and lodge the necessary documents with ASIC. When the documents were being lodged, Mr Giovinazzo said that Ms Pendergast asked him why the shares being issued to RCL were not to be beneficially held by RCL. Mr Giovinazzo said he explained the reasoning to her and she said little in response. Mr Giovinazzo said that he wrote out the share certificate by hand, which Ms Pendergast signed, and then entered it into the GPR share register. Mr Giovinazzo said he does not have a copy of the share certificate or the share register and has not seen the share register since April 2021 as many company records were lost following Ms Pendergast's resignation on 30 June 2021.

66 Mr Giovinazzo said that he could not recall any discussion with Mr Billis about any recourse that Mr Billis might have to the shares he was issued in GPR.

67 In her evidence-in-chief, Ms Pendergast was taken to the email of 16 September 2020 outlined in further detail below. She was then asked by counsel for RCL what she was told about the 990 shares that were issued in September 2020. She said that Mike (Mr Giovinazzo) said he was going to issue shares in GPR to Anton (Mr Billis) and she said that was a good idea. She said that Mr Giovinazzo did not explain why he was going to do it. When she was asked as to whether she had any discussion about any funding that was being provided by any companies associated with Mr Billis to GPR, she said, 'well, see the thing is, Mike was the one that dealt with Anton, and raised the funds and stuff. I was just - I just did what I was told to do'.

68 In cross-examination, Ms Pendergast was asked whether she kept an unofficial share register which was described as a document which recorded who held what shares. She answered 'no, I don't recall that'. In a different context, she was asked in cross-examination about whether Mr Giovinazzo had said to her that she should set up a trust to hold her five shares in the company for the benefit of her children. She said she tried to get her head around the idea of a trust but 'even to this day I've got no idea'. She knew that the trustee of the trust was TLH but she said, 'the trustees of the trust, it's confusing'. When she became aware that Mr Giovinazzo transferred his five shares into the trust as well (which is referred to below), she 'thought it was a bit weird, but anyway'. In her evidence-in-chief she was also asked about TLH being a shareholder in GPR as at July 2022. She agreed that she knew that, and when she was asked how she understood that, she answered, 'um, well Mike, um, organised all that so that, that it was a trust or something. I really didn't understand it at all to be honest because I'm, I'm just a farmer, like country - I'm not corporate like all you guys, so yeah'.

69 I turn now to the relevant documentary evidence relevant to this factual dispute. On 15 September 2020, funds were debited from an account in Mr Giovinazzo's name and paid into a GPR bank account in the sum of $990 with the description 'Resource Capital share payment'.

70 On 15 September 2020 at 07:28:42 am AWST, Mr Giovinazzo emailed Mr Billis forwarding the payment details. The email read:

Made payments for shares in GPR to be issued to Resource Capital Limited. Today GPR will issue the shares to Resource Capital Limited 990 with 5 shares in my name and 5 shares in Tarina's name being a total of 1000 shares on issue.

71 On 15 September 2020 at 3:45:57pm AEST, Mr Giovinazzo emailed Mr Billis forwarding a share transfer form to Mr Billis relating to ABA. The share transfer form related to 7 million shares held by Omeo Gold in ABA. The purchase consideration was $70,000 and the date of purchase was 15 September 2020. The transferee's name was completed and identified as RCL. The form was signed by Mr Giovinazzo on behalf of Omeo Gold and dated 15 September 2020. Mr Giovinazzo's email to Mr Billis read:

Could you sign and send back. Was unable to type it but it's only going to ABA register. I chose $70,000 as transfer figure as you had paid a $50,000 and a $20,000 to [Omeo Gold] account so if anyone queries it is covered Regards Mike

72 On 16 September 2020 at 7:34:07 am, Mr Giovinazzo emailed Ms Pendergast in the following terms:

Hi Tarina

Details for GPR lodgement

990 new shares to be issued at $1.00 each

In the name of

RESOURCE CAPITAL LIMITED

CARE OF

EQUIOM FIDUCIARY SERVICES PTE.LTD

50 RAFFLES PLACE #15-05/06

Singapore Land Tower

SINGAPORE 048623

We need to issue and lodge the new shares with ASIC update the holder details on ASIC

produce minutes of share issue and issue share certificate. I will help with

this

Regards Mike

73 An application for shares form was subsequently completed in what appears to be Mr Giovinazzo's handwriting addressed to the directors of GPR which contains a request that the directors allot RCL 990 fully paid ordinary shares in the company. The document is dated 16 September 2020.

74 The ASIC records show that a Form 484 was lodged with ASIC on 16 September 2020 at 12:51:20 changing the company details. The Form 484 identifies that the lodgement party was Ms Pendergast and that the form was signed by her. Ms Pendergast certified that the form was true and complete. The Form 484 records the issue of 990 shares increasing the number of ordinary shares to 1,000 and records the details of the new member of the company (RCL). Beneath the section of the Form 484 headed 'C4 Changes to the register of members' which identifies the members details, there is a box which comprises nine columns and two rows. Reading left to right, the columns are share class code, shares increased by, shares decreased by, total number now held, total $ paid, total $ unpaid, fully paid, beneficially held and top 20 member. Relevantly, in the second row of the second column from the right which records whether the shares are beneficially held, there is an 'N'.

75 Also bearing the date 16 September 2020 is a share certificate which appears to be completed in Mr Giovinazzo's handwriting which confirms that RCL is the registered holder of the 990 fully paid shares in GPR. The share certificate is signed by Ms Pendergast as the sole director/secretary of GPR.

76 On 17 September 2020 at 4:44:32pm AEST, Mr Giovinazzo emailed Mr Billis with the subject line 'Share documents.pdf'. The email read:

Hi Anton

Please find attached copy of [ASIC] lodgement share certificate and share application form. Could you please complete share application and return to me. The share certificate will be replaced in due course with a typed copy.

The enclosures to that email contain an extract from the ASIC registry which shows, among other things, the company share structure comprising ordinary shares of which 1,000 are on issue, with the total amount paid 1,000. Under the subheading 'members', it lists the three members, RCL, Mr Giovinazzo and Ms Pendergast, provides their addresses and the total number held, whether they are fully paid or not and whether they are beneficially held. As noted above in the case of RCL, there is an 'N' in the row underneath showing that RCL does not hold the shares beneficially, in contrast to the shares held by Mr Giovinazzo and Ms Pendergast. The second document enclosed is the handwritten application for shares, whilst the third is the share certificate.

77 There is an email sent by tribunescanner@gmail.com to antonbillis@gmail.com (Mr Billis) at 17:00 which enclosed the application for shares form now signed by Mr Billis as director of RCL.

78 As part of the same email chain, there is then an email from the antonbillis@gmail.com address to randgoldltd@yahoo.com sent 17 September 2020 05:20:55pm GST+8 which is then followed by an email from randgoldltd@yahoo.com to Mr Giovinazzo sent on 17 September 2020 at 7:27:24pm AEST which is then in turn on-forwarded by Mr Giovinazzo to Ms Pendergast the next day at 6:55:09pm.

79 On 18 September 2020 at 6:32pm, Ian McCubbin, the chair of Rimfire, sent an email[1] to Mr Billis, copied to the CEO Mr Riley, its chief financial officer, Greg Keane, and Mr Giovinazzo which refers to an earlier email sent by Mr McCubbin to Mr Billis and then 'confirms that the payment is for $1,080,000 rather than $1,000,000. The additional $80,000 will mean the [sic] all of GPR'S Earn In obligation for the quarter 1work program commitment will have been paid'. The earlier email to which Mr McCubbin refers makes reference to earlier discussions between Mr Billis and Mr McCubbin which confirms Mr McCubbin's offer of a placement for 500,000 shares in Rimfire at a price of $0.0125 per share. The offer was part of a total proposed placement of 1,500,000 shares at $0.0125 per share and a subsequent share purchase plan of 500,000 at the same price.

80 On 21 September 2020, Mr Riley emailed Mr Giovinazzo, copied to Mr Keane, confirming that GPR's total outstanding payment, comprising the admin fee and work program payment, is $580,000 and providing details of same. This is then forwarded on ten or so minutes later by Mr Giovinazzo to Ms Pendergast and Mr Billis. Mr Giovinazzo's email reads:

Hi Anton

The initial budget I sent through was for $400k has been reduced to $300k and as you can see next call is for 2nd week November.

The payments by GPR are as follows

1st May. $64,000.00

4th May $2000.00

26th June $14,000.00.

81 On 21 September 2020, Mr Keane emailed Mr Billis, copied to Mr Riley, providing Mr Billis with details of Rimfire's bank accounts for both share placement funds and the GPR admin fee and first quarter exploration fee. Someone has written in hand '500,000' against the share placement funds and '$580,000' against the GPR admin fee and first quarter exploration fee.

82 Relevant to the share placement, on 9 October 2020, Mr Riley emailed Mr Giovinazzo, who in turn forwarded the email on to Mr Billis, enclosing details of the top 50 shareholders in Rimfire based on an extract of the Rimfire annual report.

83 The top 50 shareholders listed second GPR, which held 85,000,000 shares (4.85% of the shares), and third RCL, which held 40,000,000 shares (2.28% of the shares) and the twenty-fourth largest shareholder, Lake Grace, which held 12,500,000 shares (0.71% of the shares). The largest shareholder was Booker Super Services Pty Ltd as trustee for the G & C Booker Super Fund, which held 90,500,000 shares (5.16% of the shares). Reef Investment Pty Ltd, the trustee of the Nairn Family Trust, held 15,600,819 shares (0.89% of the shares), Trevor Douglas Nairn held 13,000,000 shares (0.74% of the shares), and Reef Investments Pty Ltd as trustee of the T D Nairn Super Fund held 12,099,940 shares (0.69% of the shares). Booker Super Services Pty Ltd is associated with Mike Booker, a friend of Mr Giovinazzo's and he along with Mr Nairn also apparently hold shares in Apple iSports.

84 On 18 October 2020, Mr Riley emailed Ms Pendergast, Mr Giovinazzo and other Rimfire executives enclosing a copy of the Management Meeting Minutes #2, together with, among other things, a Second Quarter Cash Call and Credit Note.

85 On 6 November 2020, Mr Keane emailed Mr Giovinazzo and Ms Pendergast, copied to Mr Riley, attaching a further copy of the cash call notice for the second quarter, advising that the payment date had been extended to midday, 9 November 2020 and providing updated bank account details. Mr Giovinazzo forwarded the new bank account details on to Mr Billis by email on the same day informing him that the amount of the cash call is $300,000, not $330,000 as he had earlier told him.

86 On 6 November 2020, $300,000 was debited from a bank account in Lake Grace's name and transferred to Rimfire's bank account.

87 Rimfire's annual general meeting was held on 24 November 2020. At the meeting, a series of resolutions were passed, the details of which were forwarded on to Mr Billis by Mr Giovinazzo on the day of the annual general meeting. Mr Billis responded by email the same day conveying in fairly blunt terms his displeasure with the results of the resolutions. Mr Billis told Mr Giovinazzo that he should get a court order to inspect the proxy vote and give a notice under s 249 of the Act removing the directors. Mr Giovinazzo gave evidence, which was not challenged, to the effect that he did not agree with that course including because the directors that Mr Billis sought to remove were directors of GPR's joint venture partner.

88 By notice issued on 19 January 2021, Rimfire made a cash call in the sum of $300,000 for the third quarter by invoice sent to GPR that day, which was duly forwarded on by Mr Giovinazzo to Mr Billis the next day. Funds satisfying the cash call were debited from Lake Grace's bank account and paid to Rimfire on 25 January 2021.

89 Mr Billis and Mr Giovinazzo communicated regularly by WhatsApp message or WhatsApp calls. On 3 February 2021, Mr Billis messaged Mr Giovinazzo asking Mr Giovinazzo to get him details of the top 50 shareholders in Rimfire.

90 On 3 February 2021, Rimfire provided a report on its drilling results obtained at various Rimfire locations to Mr Giovinazzo and Ms Prendergast. Mr Giovinazzo forwarded the drilling results on to Mr Billis who responded by email the next day in blunt terms expressing his dissatisfaction with the approach of Rimfire. He told Mr Giovinazzo if he didn't want to take control he should just move over and that he would throw them out (evidently a reference to his desire to enact change at the management of Rimfire).

91 On 29 March 2021, Ms Pendergast emailed Mr Riley, copied to Mr Giovinazzo, attaching a new joint venture proposal from GPR which she described as separate to the already existing joint venture agreement between Rimfire and GPR. The attached proposal was for GPR to acquire 70% equity in further exploration licences held by Rimfire which were not already covered by the current Fifield Earn-In Agreement. GPR offered consideration of $5 million by way of direct expenditure for exploration purposes in respect of the new licenced area. The email was forwarded by Mr Giovinazzo to Mr Billis on the same day, who responded by saying he did not think that Rimfire would bite on the offer and that the only way forward for them was for Mr Giovinazzo to talk face-to-face with the former chairman of Rimfire and then call a meeting and get rid of any of the directors they wished to remove.

92 On 7 April 2021, a Form 484 was lodged with ASIC, purportedly by Ms Pendergast which recorded the transfer of the 5 shares held by each of Mr Giovinazzo and Ms Pendergast to TLH. Mr Giovinazzo said he did this because he wanted to help Ms Pendergast's children and thought that setting up a trust which contained 10 shares in GPR was a good way to do it. He said that Ms Pendergast did not really understand the trust structure and he explained the mechanism to her.

93 As discussed above, Ms Pendergast agreed that in or around April 2021, Mr Giovinazzo said to her that she should set up a trust to hold her five shares for the benefit of her children but she did not really understand what a trust was.

94 When it was put to Ms Pendergast by counsel for the Giovinazzo Parties that Mr Giovinazzo said he was happy to transfer those shares to TLH because he was expecting some other shares to come back to him when the loan made by Mr Billis was paid off, she said she could not recall that. When it was then put to her by counsel for the Giovinazzo Parties that it was possible that Mr Giovinazzo said that but she could not recall it, she said, 'Nah, he's never said anything like that'. When it was further put to Ms Pendergast, 'Would you have understood that if he had said it to you?' she answered, 'But he didn't'. She was next asked, 'You would have understood that he was not giving away the whole of his interest in the company, wouldn't you?' to which she answered, 'Well, it sort of does mean that he did, didn't it or not'. When counsel for the Giovinazzo Parties then asked, 'You did not think at the time that Mr Giovinazzo was giving you his whole interest in the company and it's mine now?' she answered, 'Oh, I sort of did, but then I'm like well, I don't understand it, so I was just like well, it is what it is'.

95 On 12 April 2021, Mr Riley emailed Ms Pendergast and Mr Giovinazzo, copied to Mr Keane and another Rimfire employee, with a copy of what he described as a 'Farm-in agreement' for a project at Avondale. This was evidently a reference to the further joint venture contemplated by Mr Giovinazzo and Mr Billis on 29 March 2021. Mr Riley provided a copy of the draft joint venture agreement the next day as promised.

96 By notice dated 14 April 2021 sent to GPR, Rimfire made a call for the fourth quarter exploration cash call in the sum of $300,000 which amount was paid from Lake Grace to Rimfire on 29 April 2021.

97 On 4 May 2021, Ms Pendergast emailed Mr Riley, copied to Mr Giovinazzo, with comments on the first draft of the Avondale Earn-In Agreement. In her email, she confirmed that she and Mike had reviewed the Avondale Earn-In Agreement and then proceeded to set out further requested amendments.

98 On 5 May 2021, Mr Giovinazzo emailed Mr Billis in relation to the fourth quarter year 1 exploration cash call and the year 2 administration fee confirming that there were actually two separate cash calls, the first of which was for $300,000 which had been recently paid by Mr Billis and was the administration fee for year 2 and a further cash call of $330,000.

99 On 11 May 2021, an account in the name of RCL held in Singapore was debited with a payment of $330,000 which was transferred into a Rimfire bank account.

100 On 5 May 2021, Mr Giovinazzo sent an email to someone called 'Matthew Sullivan' and to Mr Billis. The email was copied to Ms Pendergast and to the email address gbooker@gcbinv.com. The email contained detailed and specific observations with respect to the deposits on the Sorpresa land and adjacent areas.

101 On 11 May 2021, Mr Giovinazzo emailed Mr Billis. The subject line of the email was 'Outstanding'. The email read:

Hi Anton

The outstanding balance is as follows $2,134,985 made up by the following payments

12/09/2019. Lake Grace. Apple $14,600

19/05/2020. Lake Grace. Rim shares. Placement $240,000

26/06/2020. Lake Grace. Rim J/V. $20,000

05/08/2020. Lake Grace. Rim Shares. $50,385

24/09/2020. Resource Capital Rim JV. $330,000

24/09/2020. Resource Capital. Rim JV. $250,000

06/11/2020. Lake Grace. Rim JV. $300,000

25/01/2021. Lake Grace. Rim JV. $300,000

29/04/2021. Lake Grace. Rim JV. $300,000

10/05/2021. Resource Capital. Rim JV. $330,000

Total: $2,134,985

Regards Mike

102 Within an hour, Mr Billis forwarded the email to Lyndall Vaughan who apparently is an accountant who works for Mr Billis. Mr Billis' email read:

Lyndall

This is what i got from Mike regarding payment for Rim Cash Calls Etc.

Ms Vaughan replied by email sent the same day to Mr Giovinazzo, copied to Mr Billis. In Ms Vaughan's email, she said that what had been sent looked good but that it missed a payment of $580,000 from RCL direct to Rimfire for a cash call on 24 September 2020.

103 On 17 May 2021, Ms Pendergast emailed Mr Riley, copied to Mr Giovinazzo, attaching 'our final offer to earn 75% for 7.5 million dollars'. Mr Riley responded, thanking Ms Pendergast and Mr Giovinazzo for the revised offer and incorporating the revised terms into the joint venture agreement. This related to the project at Avondale.

GPR buys more shares in Rimfire and the $100,000 cash call

104 On 17 June 2021, GPR bought a further 5 million shares in Rimfire at a price of $0.008 (or 0.8 cents per share). Mr Giovinazzo's email to Mr Billis confirmed that Omeo Gold had transferred $40,000 to GPR to pay for the shares and that the acquisition would take GPR's holdings to 90,000,000 Rimfire shares. His email advised that the new joint venture agreement would be signed Wednesday and on signing the amount of $100,000 had to be paid with the balance of $150,000 payable 30 days from signing. Mr Giovinazzo's email continued:

As [d]iscussed, could you pay the funds 100k direct to GPR account so GPR can pay the 100k on signing.

105 On 21 June 2021, Lake Grace transferred $100,000 into a bank account in GPR's name as requested. On 22 June 2021, Mr Riley emailed the Avondale Earn-In Agreement to Mr Giovinazzo and Ms Pendergast, copied to Mr Keane, the form of which incorporated the most recent round of discussions. Mr Riley's email also refers to feedback from 'Lee' as to the terms of the Avondale Earn-In Agreement which is evidently a reference to Lee Christensen from CX Law.

106 On 24 June 2021, GPR and Rimfire entered into the Avondale Earn-In Agreement. The Avondale Earn-In Agreement provided for GPR to earn an interest in the mining licences, leases and other assets held by Rimfire in New South Wales with the interest being earned if and only if GPR met its funding commitments under the Avondale Earn-In Agreement. The structure of the agreement was similar to the Fifield Earn-In Agreement.

107 On 30 June 2021, Ms Pendergast emailed Mr Giovinazzo attaching her letter of resignation from GPR and Silver Plains Resources Pty Ltd. When counsel for RCL sought to explore the reason for the resignation in Ms Pendergast's examination in chief, counsel for the Giovinazzo Parties objected. In the face of the objection, the question was not pressed. Mr Giovinazzo replied by email by stating that he could not accept the resignation 'until we have discussed things further particularly the will ramifications and other things'. He requested that Ms Pendergast have a think and give him a call.

108 On 1 July 2021, Mr Giovinazzo emailed the sharebroker, Mr Connelly, advising that Ms Pendergast had stepped away from GPR as a director to focus on her children. Mr Giovinazzo advised that he was the new director which would be lodged with ASIC by Tuesday. He requested that Mr Connelly change the billing address to Mr Giovinazzo's address and remove Ms Pendergast's email address and replace it with his.

109 On 2 July 2021 at 5:44:48pm, Jeremy Flynn, a solicitor at White Cleland, emailed Mr Giovinazzo and Ms Pendergast referring to a conference that he had held with Mr Giovinazzo that day and attaching a circulating resolution of members of GPR which approved the resignation of Ms Pendergast as director, appointed Mr Giovinazzo as the new director and secretary and changed the company's registered address. He requested they both sign and date the resolution. The attached circulating resolution provided for signing by RCL by its director Michael James Giovinazzo and Ms Pendergast. Mr Giovinazzo has never been a director of RCL and at the time the two shareholders were RCL and TLH, not RCL and Ms Pendergast.

110 On 2 July 2021 at 6:21:31pm, Ms Pendergast emailed Mr Flynn which had beneath it a copy of the circulating resolution which had been signed by Ms Pendergast and dated 2 July 2021. The document tendered which had been discovered by the Giovinazzo Parties is most curious, as it also purports to have been signed by Mr Giovinazzo on 29 July 2021 but not as the director of RCL as the reference to director has been crossed out. Instead, the words 'AS AUSTRALIAN REP AND BENEFICIAL OWNER' have been written in hand evidently by Mr Giovinazzo. Plainly the document emailed 2 July 2021 could not have been signed by Mr Giovinazzo at that time.

111 In fact, the document completed by Ms Pendergast is the document which is attached to Mr Flynn's email to Ms Pendergast copied to Omeo Gold on 12 July 2021 at 5:36:36pm which included reference to a below email sent 2 July 2021 and attached a circulating resolution of members. However this version of the document had been signed by Ms Pendergast alone on 2 July 2021 and sent at 6:22pm that same day to Mr Flynn. Mr Flynn's email thanked Ms Pendergast for forwarding the signed copy of the circulating resolution, but also requested that she send through the eight digit ASIC corporate key number for both GPR and Silver Plains Resources, so that he (that is Mr Flynn) could formally remover her as a director of both companies. He advised Mr Pendergast that until she was removed she would remain listed as a director.

112 The documents tendered in evidence also include another copy of the circulating resolution signed by Ms Pendergast on 2 July 2021, but which has also been signed by Mr Giovinazzo on a date which is a little difficult to read but which is either 5 or 8 July 2021.

113 On 13 July 2021, Mr Flynn emailed Ms Pendergast thanking her for her assistance in obtaining the ASIC corporate key and confirming that a Brian McDonald would attend Ms Pendergast's premises the next day to pick up the remaining company files and property. He then set out a list of the company documents that were to be provided to Mr McDonald. The covering email indicates there is an acknowledgement/record of company items that the company agreed that Ms Pendergast could retain and requests Mr Pendergast signs and returns the acknowledgement to Mr Flynn and Mr Giovinazzo. The email tendered in evidence is most curious in form as the first page concludes 'Regards, Jeremy' with Mr Flynn's contact details but is immediately followed by a second page which advises of Mr Giovinazzo's engagement of Davenport Taylor to resolve the GST lodgements for GPR. The second page further confirms that Mr Giovinazzo said that she could retain the laptop computer but requested that she locate and post to Mr Giovinazzo a copy of the share certificate with regard to the shares held by GPR in Rimfire and Mr Giovinazzo's mobile phone that he left at Ms Pendergast's house. Ms Pendergast responded by saying she wanted her share certificates and her kids' share certificates back and until she received them she would not sign the documents requested of her.

114 In any event, the ASIC records show that the Form 484 change to company details form was lodged on 13 July 2021. The form recorded the change to the company details in the form of a change of registered address and the appointment or cessation of a company office holder.[15] The obvious inference is that the documents were lodged by Mr Flynn on that day having been provided with the corporate key and a resolution which had been signed by Ms Pendergast on 2 July 2021 and Mr Giovinazzo purportedly as a director of RCL on 5 or 8 July 2021.

115 By notice issued 19 July 2021, Rimfire gave notice to GPR of the requirement to pay the second earn-in payment upon execution of the Avondale Earn-In Agreement in an amount of $175,000 (which included GST of $15,909.09).

116 Mr Giovinazzo forwarded this invoice and one other invoice to Mr Billis by email dated 19 July 2021. The covering email confirmed that the first Avondale joint venture invoice of $99,999 had been paid when the $100,000 had been transferred by Mr Billis to GPR's account. The second invoice was described as the one for $175,000 and was due on 25 July 2021. Mr Giovinazzo's email requested that the funds needed to go into GPR's account and then would be paid to Rimfire. By transfer made 21 July 2021, Lake Grace transferred $175,000 to GPR.

117 On 27 July 2021, Mr Riley emailed Mr Giovinazzo in relation to an ASX announcement, the terms of which were not tendered in evidence and are not apparent. The email was forwarded on by Mr Giovinazzo to Mr Billis who replied:

Now i can get better picture nobody das not believe Craig and his group all this is Geo's Wank how to waste OPM money

118 On 28 July 2021, Mr Giovinazzo emailed Mr Billis in relation to drilling results for the project at Avondale, suggesting that:

We need to review and work at a program for the cobalt also should target platinum and gold.

They don't know how to organise a piss up in a brewery But this is better let them run around wasting money before we kick them out.

119 As noted above, there is a second version of the circulating resolution of members of GPR which bears Mr Giovinazzo's signature. According to Mr Giovinazzo, he had told Mr Billis about the first circulating resolution which needed to be signed by RCL following Ms Prendergast's resignation. Mr Giovinazzo, said that in response Mr Billis said there was no need for RCL to sign the resolution and that Mr Giovinazzo should sign it as 'it's your company'. Mr Billis denied this. According to Mr Giovinazzo, in the weeks after signing the resolution, he came to feel uncomfortable about it and spoke with Mr Billis about it on a few occasions. According to Mr Giovinazzo, at the end of July, Mr Billis told him to sign the resolution as 'Australian rep', as a result of which Mr Giovinazzo said he cancelled the first resolution and signed the new one on 29 July 2021 adding the words 'beneficial owner' as well (which was not suggested by Mr Billis). Mr Giovinazzo said Mr Billis did not explain what was meant by 'Australian rep'.

120 Mr Billis did not accept this account. He said that Mr Giovinazzo had told him at some point that Ms Pendergast had resigned and that he was the new director. He said he had never been aware of any of the circulating resolutions, or that Mr Giovinazzo had signed a copy of a resolution in his capacity as a director of RCL, until he saw the document in discovery. Nor had he seen the revised copy of the resolution of members which stated that Mr Giovinazzo had signed as 'Australian rep and beneficial owner'.

121 Mr Davenport gave evidence that shortly after meeting Mr Giovinazzo, Davenport Taylor were appointed as the accountants for GPR in July or August 2021. He said that at that time, GPR's books and records comprised a collection of bank statements and receipts which he described as a shoebox (of records). Mr Davenport said that GPR had to reconstruct a lot of the records so that they could ascertain what had happened and the process commenced with the bank statements. He had to clarify a number of transactions including because certain expenses had been paid personally by Mr Giovinazzo and that clarification had to be obtained as to which expenses were private and which were personal.

122 Mr Davenport also said that shortly after he started working with Mr Giovinazzo sometime in July or August of 2021, he had a discussion with Mr Giovinazzo about employee stock options. According to Mr Davenport, he told Mr Giovinazzo that there were tax advantages in entering into an options agreement when the value of the company was low. He said he recommended that Mr Giovinazzo consider such an agreement. He said he told Mr Giovinazzo he was not willing to risk drafting the agreement in case he got it wrong, so Mr Giovinazzo needed to see a lawyer or do it himself. He said that Mr Giovinazzo brought in some old copies to which Mr Davenport said, 'Well, the problem with, as in, that we need to avoid and make sure is that they need to be real and that you have to avoid the risk of forfeiture'. When Mr Davenport was in the witness box he was shown a copy of the Employee Stock Option Agreement dated 3 August 2021. Mr Davenport said that he had not seen that document in its final form.

123 According to Mr Giovinazzo, he provided copies of two different types of employee stock option agreements to a friend of his, Peter McBrearty, a mathematician. Mr McBrearty then prepared the document in the form executed. Mr Giovinazzo said that he was provided with only a hard copy of the document and he later gave a copy to Mr Davenport. Mr Davenport said that he did not recall being provided with a hard copy.

124 Further, Mr Giovinazzo said that in September or October 2021, he told Mr Billis that the Employee Stock Option Agreement was in place and he was going to sell some stock down to repay the loans Mr Billis had given him. Mr Giovinazzo said he cannot recall what Mr Billis said in response, but there was no objection from him. Mr Billis denied that Mr Giovinazzo had ever raised the Employee Stock Option Agreement with him. Mr Billis said that he first became aware of this document at the shareholders meeting which RCL called in July 2022 in the circumstances described below.

125 The Employee Stock Option Agreement provides for the grant of an option by GPR to Mr Giovinazzo to purchase 10,000 ordinary shares of the company (the 'Option Shares') at an exercise price per share of $1 during the period commencing 3 August 2021 and expiring on 2 August 2026. Clause 3 records that the exercise price of $1 per share represents the fair market value per share of the company at the date of the grant as determined by the director of the company. The vesting schedule attached to the Employee Stock Option Agreement in effect provided for the Option Shares to vest as to 5,000 on 23 March 2022 and as to the balance of 5,000 on 23 April 2022.

126 On 9 August 2021, Mr Billis messaged Mr Giovinazzo on WhatsApp saying:

Mike I like the way Marino is leading you all by the nose he had no intention of listing as he Das (sic) not own 90% of shares this was his private bank for many years why should he do anything else wake up he will spin you all around for another 5 years.

This is evidently a reference to Marino Sussich, who was a person associated with both ABA and Apple iSports. It is apparent from other messages sent by Mr Billis to Mr Giovinazzo that he had a dim view of Mr Sussich.

127 By notice given on or about 25 August 2021, Rimfire made a further cash call on GPR in the amount of $300,000, which amount was paid by transfer from Lake Grace to Rimfire on 25 August 2021. A further cash call was made by Rimfire on 15 December 2021 in connection with the Avondale Earn-In Agreement in the amount of $250,000. Mr Giovinazzo forwarded a copy of this cash call notice to Mr Billis on 26 January 2022 along with a further notice relating to the Fifield Agreements. His covering email requested that the $300,000 be paid direct to Rimfire and the $250,000 be paid first to GPR as was normally the case.

128 Payments of $250,000 and $300,000 were made from Lake Grace's bank account on 8 February 2022.

129 On 10 February 2022, Mr Giovinazzo emailed Mr Billis, Mr Booker, Mr Connelly, Mr Nairn and Mr Davenport. The email subject line was 'Apple I Sports Confidential' and the attachment to the email related to a transition of Apple iSports to the 'over-the-counter' market. In his evidence, Mr Giovinazzo explained that Apple iSports was the subject of a reverse takeover which resulted in those who owned shares in Apple iSports receiving shares in a company previously known as 'Prevention Insurance.com', which later changed its name to Apple iSports Group, Inc. The attachment to the email took the form of an email from a United States attorney, Daniel Luciano, to Mr Sussich which set out details of the process.

130 On 10 February 2022, Mr Connelly emailed Mr Giovinazzo referring to an agreement between Mr Giovinazzo and a third party to the effect that Mr Giovinazzo had agreed to sell his shares in Apple iSports off market. Mr Connelly recommended that Mr Giovinazzo should request the appropriate off market transfer and request that the buyers deposit 50% of the agreed purchase price into a specified account with the balance to be paid once the share register confirms that they are in receipt of the off market transfer by email.

131 On 28 February 2022, Mr Giovinazzo sent an email to Mr Billis forwarding on what was described as a 'Trans Global certificate'. The email took the form of Mr Giovinazzo onforwarding to Mr Billis, a copy of an email sent by Mr Sussich to Mr Giovinazzo on 28 February 2022 at 5:43pm AEDT attaching a purported stock certificate in Apple iSports. The stock certificate certified that Trans Global Capital Ltd ('Trans Global'), a company associated with Mr Billis, was the 'owner of 800,000 (eight hundred thousand) shares (numbers 12,406,802 - 13,206,802) of Apple iSports Inc On this 1st Day of March In The Year 2022 At 16192 Coastal Highway, Lewes, County of Sussex, Delaware, 19958, USA'. On 28 March 2022, Mr Giovinazzo appeared to forward the same certificate again to Mr Billis albeit at a different email address.

132 Separately, on 28 February 2022, Mr Sussich forwarded a purported stock certificate for Apple iSports to Mr Giovinazzo on 28 February 2022 at 5:43pm AEDT with the subject line 'Mike G Certificates', which recorded that RCL was the 'owner of 5,700,000 (five million seven hundred thousand) shares (numbers 3,500,000-9,200,000) of Apple iSports Inc On this 1st Day of March In the Year 2022'. Mr Giovinazzo forwarded this on to Mr Booker on 28 February 2022 at 2:54pm AWST, to Mr Billis on 28 March 2022 at 4:48pm AWST and to Mr Christensen on 29 March 2022 at 2:57pm.

133 On 14 March 2022, Rimfire issued a two further cash call notices for the Fifield Project to GPR, one in the sum of $330,000 for the year 3 administration fee and another in the sum of $300,000 in relation to exploration costs and a separate cash call notice for the year 1 third quarter exploration fee of $250,000 in connection with the project at Avondale.

134 The payments in relation to the Fifield Project were paid from funds held in an account in Lake Grace's name by a transfer to Rimfire of $630,000 on 7 April 2022.

135 Davenport Taylor prepared financial statements and a tax return for GPR for the year ended 30 June 2021. Those documents were forwarded to Mr Giovinazzo by letter from that firm on 31 March 2022. The statements bear Mr Giovinazzo's signature and are signed 31 March 2022,contain a resolution adopting the financial statements and notes for GPR for the year ended 30 June 2021 and contain a director's declaration in respect of the year ended 30 June 2021 also signed by Mr Giovinazzo. The director's declaration, inter alia, declares that the financial statements and notes present fairly GPR's financial position as at 30 June 2021 and that the information provided to Davenport Taylor for the compilation of the financial statements is complete, true and accurate.

136 The balance sheet records total assets for that financial year of $2,318,398 and total liabilities of $2,509,940, resulting in a deficiency of assets over liabilities in the sum of $191,542. GPR's assets largely comprise the Avondale Earn-In Agreement valued in the amount of $90,909; the Fifield Earn-In Agreement valued in the amount of $1,800,000 and shares in Rimfire valued at $345,030.

137 The liabilities largely comprise non-current liabilities described as related party payables comprising loans to 'Booker Super Services' of $22,000, Lake Grace of $2,214,371, Michael Giovinazzo of $138,403 and Omeo Gold of $117,200.

138 In cross-examination, counsel for the Giovinazzo Parties questioned Mr Billis by putting to him that, 'Mr Giovinazzo will say that in late February or early March 2022,..., you told him that the piggy bank was starting to run low and that you wanted the loans formalised'. Mr Billis answered 'no'. Counsel then said that Mr Giovinazzo will say that he flew to Perth and that Mr Billis met with Mr Giovinazzo and Mr Christensen 'your collective friend and lawyer in West Perth to document the agreement'. Mr Billis was asked if he agreed. Mr Billis answered, 'Ah yes - I went to the meeting'. Counsel then asked, 'Yes. He'll say that in that meeting you told Mr Christensen that the loans were interest free, that you wanted a date on which you could demand repayment, did you say that?'. Mr Billis answered, 'No'. Counsel then asked, 'He'll say that you told Mr Christensen that once the loans were repaid, you'd give back all of the transfer forms, the GPR shares and the Apple shares?'. Mr Billis answered, 'No'. Counsel then asked, 'Mr Giovinazzo will say that he told Mr Christensen that he would repay you and also give you a share in GPR in your own right?'. Mr Billis answered, 'No'.

139 In cross-examination, Mr Billis was then directed to a draft repayment deed prepared by Mr Christensen's firm and headed 'Repayment Deed' which bore the date April 2022 and to which Trans Global, among others, was named as a party. Mr Billis answered by saying that Mr Christensen produced about three different agreements. His answer continued:

And I knew exactly what was going on, so I went to the meeting just to see how Mr Giovinazzo. And I came down and then they starting dictating, they wanted to change the whole - more or less, change the whole original agreement. They're going to give me this, they're going to give me that, then I give them our valuable Golden Plains shares, for worthless shares of his. I wasn't interested. Why should I change the original agreement, I have no desire to change it.

140 Mr Billis was then taken to that part of the draft deed which said that GPR may repay the debt to RCL at any time and was asked to accept that each of these agreements treated the debt, later specified to be $4.13 million and owing by GPR, as single debt. Mr Billis answered, 'I'm not agreed to this', with obvious reference to the deed. He said that he had a quick read through the draft deed when it was shown to him by Mr Christensen and Mr Giovinazzo but he was not interested in doing the transaction that they wanted saying 'I was not interested'. Mr Billis was then taken to part of that email train which included an email from Mr Christensen which read:

Dear Michael,

Please find attached a very draft deed (I can do the all matters later) of the matters we have discussed.

141 Following cross-examination of Mr Billis in relation to the April 2022 draft deed counsel for Mr Giovinazzo then directed Mr Billis to an email from Mr Christensen to Mr Billis dated 4 June 2022 which Mr Billis forwarded on (with no comment) to Ms Vaughan on 8 June 2022. Counsel put to Mr Billis that the deed reflected the state of the discussions at that time. Mr Billis said:

I went there to the meeting. I sat down. I didn't say very much. I just listened to their demands, what they want to do, and I did not agree with it. And I didn't say nothing, and I walked out, and that's about all. And they prepared these documents. They can prepare whatever they want to, but that is not the original agreement. And I'm - I'm not prepared to change the agreement down the track. I stick to my original word. They put all sorts of, ah, ah, standing over me.

He said both of them, Mr Giovinazzo and Mr Christensen, were putting pressure on him to sign these documents and he said he would not sign it, 'It's not the deal that I've done'.

142 Counsel for Mr Giovinazzo then said that, 'I think [your counsel] described, and I think maybe one of your witness statements does as well, that this was an effort to formalise what had been agreed'. Mr Billis responded:

No, we - we - he's trying to resolve why he put that we are not beneficial owners, but I come down and they change the whole game around and tried to put in these amounts and they had to change the original agreement. I refused to do it, so, I walked out.

Counsel for Mr Giovinazzo then put to Mr Billis, 'Isn't Mr Christensen the solicitor who's acting for you? At least, in part for you?' Mr Billis did not respond. Counsel then asked him, 'Is Mr Christensen acting for you, at this point?' to which Mr Billis answered, 'Yes, yes, about 20 years ago; he, ah, acted for me for about 20 years ago'. Counsel for Mr Giovinazzo then put to Mr Billis that, 'Mr Christensen was acting for you at the time of these meetings, wasn't he?' Mr Billis answered, 'No, and I never paid him'. Mr Billis then reiterated that he had only attended one meeting, that Mr Christensen kept sending different agreements which he refused to sign.

143 Counsel for Mr Giovinazzo then said, 'And that you're invited to this meeting, and this was an attempt to resolve that issue' to which Mr Billis answered, 'What alerted this whole thing when, ah, Mr Giovinazzo and Marino - Marino Sussich, ah, tried to, shall we say, pull a three card trick on me to get them $2 million And I found out it was just a scam'.

144 It was then put to Mr Billis that he and Mr Giovinazzo had met with Mr Christensen, they then drafted an agreement and then they emailed it to him on 4 June 2022. To this, Mr Billis answered, 'Yes'. Counsel then put to Mr Billis:

Can I suggest to you respectfully, that you attended the meeting with Mr Christensen and Mr Giovinazzo for the purpose of, as your counsel said, endeavouring to formalise what had been agreed, at the time you went to that meeting on the 4th or before 4 June 2022, you didn't have it in your mind that you'd been misled or that the shares weren't beneficially held. You went there to discuss formalising the loan agreement.

145 The cross-examination in respect of the meetings with Mr Christensen continued into the second day of Mr Billis' cross-examination. On the first day of Mr Billis' cross-examination, leave was sought to cross-examine Mr Billis on certain paragraphs of his witness statement. As earlier noted, the parties had earlier filed unsigned witness statements but they were never adopted on oath as evidence-in-chief following the Court's earlier ruling that evidence should be given orally. In any event, RCL did not object and leave was given to cross-examine Mr Billis on his earlier unsigned witness statement. On the second day of his cross-examination, Mr Billis was taken to paragraphs 108, 109 and 110 of his witness statement. Those paragraphs read as follows:

1. I decided not to confront Giovinazzo immediately about the fact that RCL's 990 shares in GPR were recorded as not being beneficially held by RCL. I was concerned that Giovinazzo had pulled the wool over my eyes from the very start, and I wanted to see if something could be done.
2. Giovinazzo and I went to see a lawyer who we both knew, Lee Christensen at CX Law in Perth, to see whether he could document the arrangement on acceptable terms, in order to protect my investment. Giovinazzo flew to Perth and we both went to see Lee at his offices in West Perth. To the best of my recollection, this was in around early to mid-June 2022.
3. By the end of 2022, Lee could not produce a document that recorded the arrangement on acceptable terms. Accordingly, the matter went no further.

146 Mr Billis was then cross-examined about a tax invoice from CX Law dated 31 March 2022, issued to GPR for $1,635.85 and in particular the entry for 29 March 2022.[16] The narrations to that invoice record an attendance of 1.2 hours on 29 March 2022 with the details of the attendance being 'conference with clients'; an attendance of 1.2 hours on 30 March 2022 being 'attending instructions and issues for drafting'; an attendance on 31 March 2022 of 0.20 hours being 'telephone attendance, client and A Billis' and a further attendance on 31 March 2022 of 0.30 hours being 'telephone attendance M Giovinazzo and dealing with document'.

147 Mr Billis was asked whether the entry 'conference with clients' was the conference that Mr Billis was referring to in his witness statement, to which Mr Billis replied, 'Ah, it - it could be, yeah, I don't know. I - I don't know the date, the precise date. It was - it could be that date, I don't know'. He was then taken to the entry on 31 March 2022 where the invoice refers to a telephone attendance with 'client and A Billis', to which he responded, 'I don't recall that'.

148 It was put to Mr Billis that contrary to his evidence the previous day which related to one meeting, Mr Billis had participated in a process of documenting the arrangement with Mr Giovinazzo that had been entered into in September 2020. Mr Billis denied this, saying, 'I didn't agree to whatever is saying. They are trying to change the agreement'. He further said, 'I talked to Lee. Ah, it wasn't that agreement.... It not acceptable to us...' Counsel then asked Mr Billis, 'Is it your evidence that once you got this document, you called Mr Christensen and you told him you didn't agree?' Mr Billis answered, 'I send him back an email back and I said no, no, no'.'

149 In relation to Mr Billis' participation in this 'process', as noted above, Mr Christensen's email to Mr Billis of 4 June 2022 was onforwarded by Mr Billis to Ms Vaughan on 8 June 2022. In the interim on 7 June 2022, Mr Christensen emailed Mr Billis asking for details of the debt and stating 'if you want to shorten the time for the demand or make payment on a fixed day or anything else get back to me'.

150 Ms Vaughan's email in response to Mr Christensen dated 8 June 2022 said that:

...Anton has asked that I email you to confirm the balance of the on demand loan from Resource Capital Ltd to Golden Plains Pty Ltd is $4,139,985. Anton also asked me to mention that the funds were paid via Lake Grace Exploration Pty Ltd, the funds being cash calls paid to Rimfire Pacific Mining Ltd, pursuant to a joint venture between Rimfire Pacific Ltd and Golden Plains Resources Pty and additional funds to buy Rimfire Pacific shares.

151 On 20 June 2022, Mr Christensen emailed Mr Billis requesting that he advise where payments are to be made and asking for a breakdown of the debt.

152 On 22 June 2022, Mr Christensen emailed Mr Giovinazzo; the email read 'Spoke to Anton yesterday. The attached is drafted in accordance with his instructions. Please feel free to discuss'. Curiously, on the version of the document in the Court Book on which Mr Billis was cross-examined, the draft which was purported to be attached was dated April 2022.

153 On 27 June 2022, Mr Christensen sent a draft deed undercover of an email to Mr Billis which said:

Anton,

Please see the attached.[17] Subject to your approval Mike is happy to execute it.

Please provide your instructions and comments.

154 There was no apparent response from Mr Billis and as a result Mr Christensen sent Mr Billis an email on 28 June 2022 advising that:

Mike has signed the document I sent you - are you still happy with it in which case I will forward to you for execution.

Fine been asking you for a week - Michael signed it pending you approving it - it was drafted consistent with our last discussion-Call tomorrow.

155 After Mr Billis' cross-examination had concluded, and after the Giovinazzo Parties had unsuccessfully made application to call Mr Christensen and put additional matters to Mr Bills in cross-examination (which is addressed below), the solicitors for Giovinazzo Parties produced three further documents which had not been previously discovered:

(a) an email from Mr Christensen to Mr Giovinazzo dated 30 March 2022;

(b) an email chain between Mr Christensen and Mr Giovinazzo dated between 14 Aril 2024 to 20 April 2022;

(c) an email from randgoldltd@yahoo (Mr Billis) to Mr Christensen dated 6 June 2022.

156 The email from Mr Christensen to Mr Giovinazzo dated 30 March 2022 read:

1. Advise what, if anything, is to occur to the shareholding in GPR of Tarina Lee Holdings Pty Ltd(given it is Tarina's company and she has nothing to do with the company anymore ??

2. Do you have a search of Resource Capital Ltd - I assume it is incorporated in Singapore?

3. Assuming you were to otherwise repay the amounts due to RC (from whatever source) what would have happened to its shareholding in GPR?

4. How much has been advanced so far? Is there any interest involved and when it is otherwise repayable (and any other relevant terms you may have agreed with RC)?

5. In regard to the deal between GPR and RC has it been reduced to writing anywhere? If so, can I see it please?

6. Is transglobal involved in this? It was mentioned yesterday.

157 The email from Mr Giovinazzo dated 20 April 2022 read:

...The company to be issued 25% of [GPR] is [Trans Global]. Upon repayment Resource Capital will be cleaned up and transferred to myself. As their could be complications of this occurring the Structure of GPR would change by issuing new shares taking the issued capital to 10,000 shares.

Transglobal Limited. 2,500 shares

Resource Capital 1,400 shares

Tarina Lee Holdings Pty Ltd. 100 shares

Omeo Gold Pty Ltd. 6,000 shares

By doing this it would give control back to myself and allow additional time for Resource Capital to be transferred. If Resource Capital is transferred at time of repayment I think the above structure should be maintained as Omeo Gold could transfer all or part of its holding to Resource Capital any time in the future. Tarina Lee Holdings is not a party to this agreement

I should have the schedule advances made by Tuesday...

158 This email was sent in response to an email from Mr Christensen to Mr Giovinazzo of 18 April 2022 which read:

1. What is the name of Anton's entity to take the 20/25(?)% upon payment in Golden Plains

2. Upon payment who is intended to own to shares Resource currently has?

3. Will Tarina Lee Holdings be a party to any agreement?

5. Please name the projects GP as presently undertaking.

6. Name of additional director. Ceases when pay? Can you then appoint another?

159 The email from Mr Billis to Mr Christensen dated 6 June 2022 read:

160 At the foot of the email provided was an earlier email from Mr Christensen to Mr Giovinazzo alone which attached a draft deed of 'the matters we have discussed'. Mr Christensen wrote in the email that the draft deed '...basically sets out the issues we discussed, I'm left somewhat of a view that there is more we can do.' The email continued, 'Given you know the circumstances better than I, forward to your thoughts [sic]. Once we have dealt with any additional matters or changes as the case may be then we should be able to finalise circulation to the other parties (not tarina lee) very quickly. I look forward to your thoughts'.

161 Mr Billis' evidence given in cross-examination about him being concerned about a 'scam' being effected upon him by Mr Giovinazzo and Mr Sussich was also addressed by him in a different context in his evidence-in-chief. Mr Billis said that as a result of that concern he asked Ms Vaughan to perform a company search of GPR.

162 According to Mr Billis, the company search recorded that RCL held 990 shares in GPR but these were not beneficially held. The evidence tendered at the hearing included a receipt of a company search undertaken on 5 June 2022. Mr Billis said he did not take any notice of the fact that he was not recorded as beneficially owning the shares.

163 By letter dated 23 June 2022, Ms Vaughan on behalf of RCL wrote to TLH attaching a shareholder resolution for execution and return by TLH together with directors consent letters from Mr Douglas and Mr Berzins consenting to act as directors of GPR. Ms Vaughan's covering letter recorded that RCL was the majority shareholder in GPR and was seeking to confirm the appointment of Mr Giovinazzo as a director of GPR, as well as add two additional directors, by way of a shareholder resolution.

164 On 29 June 2022, GPR entered into a further agreement with Rimfire relating to the Fifield Earn-In Agreement. The agreement contemplated an accelerated payment of the exploration expenditure by GPR under the Fifield Earn-In Agreement and an increase in GPR's interest by an additional 9.9% from 50.1% to 60%. The agreement provided for payment by GPR of an accelerated earn-in tranche of $1.5 million by four instalments commencing 29 July 2022 and ending 31 October 2022. There is no evidence that the further payments were made and hence the additional increase in the GPR interest was not affected.

165 As a follow-up to Ms Vaughan's letter to Ms Pendergast dated 23 June 2022, RCL engaged solicitors, Johnson Winter Slattery ('JWS') who wrote to Ms Pendergast by letter dated 11 July 2022. The letter recorded that RCL, as the majority shareholder of GPR, had ascertained that Mr Giovinazzo was recorded in documents lodged with ASIC as having been appointed as a director of GPR on 30 June 2021. The letter observed that RCL presumed that the appointment was made by Ms Pendergast pursuant to Article 1.6 of GPR's constitution. The letter continued by noting that RCL did not accept the validity of Mr Giovinazzo's appointment as a director, which in any event, was invalid since at least 30 August 2021 having regard to Article 1.6 of the constitution. This provided that any person appointed as a director under Article 1.6 ceases to be a director unless the appointment is confirmed by GPR within two months of the appointment being made.

166 The letter recorded RCL's reservation of rights in respect of any claims which it or GPR may have resulting from the appointment of Mr Giovinazzo and/or his conduct or transactions entered into by him while purporting to act as a director. The letter noted that TLH had not responded to a letter from Ms Vaughan of 23 June 2022 and advised that RCL now sought to convene a meeting of the members of the GPR pursuant to s 249F of the Act which would take place on 20 July 2022.

167 The resolutions proposed for the meeting now included the removal of Mr Giovinazzo as a director and the appointment of Messrs Douglas and Berzins. The letter noted that the need for a formal meeting of members could be avoided if both shareholders of the company passed the resolutions proposed by RCL by way of a circulating resolution, a copy of which was enclosed in the letter.

168 A letter in similar terms was sent by RCL to TLH, the directors of GPR at its registered office, Davenport Taylor, and Mr Giovinazzo on the same date.

169 The documents tendered in evidence also include a repayment deed between GPR and RCL which had been signed by Mr Giovinazzo on 28 June 2022 but not dated and returned by him to Mr Christensen, but which was later dated by Mr Giovinazzo on 12 July 2022.

170 The recitals to this deed record in recital A that GPR is indebted to RCL for the Debt which is defined as meaning the sum of $4,139,985 previously advanced by RCL to GPR and which is presently owing to RCL. Recital B records that RCL is a shareholder of GPR. Recital C records that to secure the payment of the Debt, RCL holds on trust 5,700,000 shares registered in its name in the issued capital of Apple iSports which are beneficially owned by Omeo Gold. Recital D records that to further secure payment of the Debt, RCL has in its possession two transfers for the Rimfire shares duly executed by GPR. The Rimfire shares are defined as meaning 85 million shares in Rimfire the subject of the share transfers referred to in Recital D.

171 Clause 2.2 provides that RCL could demand repayment of the Debt on 30 days' notice after 30 July 2022, whilst clause 3 provides that upon the Debt being repaid:

(a) RCL must transfer the shares in Apple iSports to GPR or such person or entity as GPR directs;

(b) RCL must deliver the transfers to the Rimfire shares to GPR;

(c) RCL must do all things necessary, and for this purpose it hereby appoints GPR or anyone GPR directs to be its attorney so that the shares in GPR registered in RCL's name are transferred to Omeo Gold or any person Omeo Gold may direct for the consideration of $1.

172 This deed as executed by Mr Giovinazzo was referred to in an email from Mr Christensen to Mr Billis dated 13 July 2022 which attached an unexecuted and undated version of that same repayment deed. Mr Christensen's email advised that he had spoken to Mr Giovinazzo who had said, he will repay the loan by the end of August (with the first payment hopefully by the end of the week. Mr Christensen's email further stated that:

Given that we had a drafted a document we may as well use it.

Most importantly, it sets out what you need to do once payment is made - if not made the position remains the same.

Mr Christensen requested that Mr Billis advise by return whether he would sign the document. There is no evidence of any response from Mr Billis who in any event did not sign the document.

Exercise of the rights under the Employee Stock Option Agreement

173 By 16 July 2022, Mr Giovinazzo purportedly wrote a letter to himself, described as the Managing Director of GPR, care of Davenport Taylor, exercising 9,000 of the 10,000 employee stock options which he held pursuant to the Employee Stock Option Agreement of 3 August 2021. His letter stated that he wished to immediately exercise 9,000 options as to 8,910 in the name of Michael Giovinazzo and 90 in the name of TLH as trustee of the Pendergast Family Trust 'complying with the agreement of April 2021'. He further wrote that 'a discussion yesterday with my accountant, Richard Davenport, advised not to utilise my loan account but pay cash for the issue of the shares. I will effect the transfer immediately upon the instructions of the company secretary of GPR'.

174 Purportedly on the same day, Mr Giovinazzo completed a form headed 'Application for Shares' which requested the allotment to him of 8,910 shares in the company at a price of $1 per share and a separate application by TLH for 90 shares which stated 'application made in compliance with agreement April 2021 whereby Tarina Lee Holdings Pty Ltd would remain as a 1% shareholder and be diluted whilst Michael Giovinazzo was in control of GPR'.

175 On 18 July 2022, Ms Pendergast returned a copy of the circulating resolution to JWS' solicitors. She originally sent through a copy of the signature page only undated but in response to a request from JSW sent through an email showing copies of the two pages including the final page with a date on it. The document as sent bore the date 18 July 2022 (as signed by Ms Pendergast) and bore an earlier date of signing by Mr Billis on behalf of RCL on 11 July 2022.

Letter from JWS to Davenport Taylor dated 20 July 2022

176 On 20 July 2022, JWS wrote to Davenport Taylor observing that RCL had noted that Mr Giovinazzo had been appointed as a director and secretary of the company on 30 June 2021 without notice to RCL and that the appointment had not been confirmed within two months, as required by GPR's constitution. The letter further stated that in response RCL and TLH had passed a written resolution on 18 July 2022 formally removing Mr Giovinazzo as a director and appointing Mr Douglas and Mr Berzins as directors with effect from 18 July 2022. The letter also referred to an enclosed subsequent directors resolution passed by Mr Douglas and Mr Berzins removing Mr Giovinazzo as secretary of the company with effect from 20 July 2022 and requested that Davenport Taylor immediately cease taking any instructions from Mr Giovinazzo and cease providing any company documents or information to him.

The issue of shares to Mr Giovinazzo and TLH on 19 July 2022

177 Unbeknown to JWS and RCL, on 19 July 2022, Mr Giovinazzo had lodged a document with ASIC purporting to record the issue of an additional 9,000 ordinary shares in GPR of which 8,910 were purportedly allocated to Mr Giovinazzo and 90 were purportedly allocated to TLH. On that day he had paid $8,910 to GPR and share certificates were issued by GPR to Mr Giovinazzo as to 8,910 shares and TLH as to 90 shares.

178 Signed minutes of a directors meeting held 28 July 2022 and attended by Mr Douglas and Mr Berzins as directors and Mr Billis (as an invitee) record, among other things, Mr Giovinazzo's issue of shares to himself without approval of the company shareholders, as well as Rimfire's recent voluntary suspension from the ASX. The minutes record the reason for the suspension being a requirement for an update by Rimfire in relation to the receipt of funds from GPR in relation to the Fifield Project Earn-In Agreement. The minutes further record that it was the position of the new GPR directors that no funding could be considered until the new directors and interested parties had copies of the Rimfire Agreements and were fully conversant with the funding requirements and the purposes for which the funds were to be utilised.

Correspondence between JWS and Tisher Liner FC Law

179 On 29 July 2022, JWS wrote to McKean Park Lawyers. The letter referred to McKean Park's letter of 25 July 2022, (which is not in evidence) which purported to respond to the letter from JWS dated 20 July 2022. In any event, the letter from JWS to McKean Park read relevantly as follows:

We have been instructed to clarify matters for your client's (and for your) benefit.

1 RCL advance the share capital for its shares in the Company

(a) While Mr Giovinazzo effected the electronic funds transfer by which $990 was deposited into the Company's account in return for the issue of 990 ordinary shares to RCL, we are instructed that this was done for and on behalf of RCL with RCL's funds.

(b) This is evident from the fact that the description for the transaction, which Mr Giovinazzo recorded, was 'Resource Capital share payment'.

(c) The $990 deposited by Mr Giovinazzo was money 'paid by RCL' in light of, on our instructions, the following background:

(i) On or about 12 September 2019, another entity or controlled by Mr Billis, Lake Grace Exploration Pty Ltd (Lake Grace), advanced $14,600 to Mr Giovinazzo as an unsecured loan to assist Mr Giovinazzo to make an investment. Mr Giovinazzo had contacted Mr Billis to ask for those funds, but did not disclose the precise nature of the investment that he wished to make.

(ii) On or about 19 May 2020, and following the incorporation of the company in October 2019, Mr Giovinazzo approached Mr Billis for a second loan. The proposed loan amount was $240,000 to be advanced by Lake Grace to the Company, and to allow the Company to acquire 75,000,000 shares in Rimfire Pacific Mining Limited (Rimfire) (Second Loan). The Second Loan was secured by RCL holding a transfer form for the shares in Rimfire.

(iii) On or about 26 June 2020, Lake Grace provided a further $20,000 to an entity owned and controlled by Mr Giovinazzo, Omeo Gold Pty Ltd (Third Loan). The Third Loan was unsecured.

(iv) In or around July or early-August 2020, we are instructed that Mr Giovinazzo contacted Mr Billis again seeking additional funds in order for the Company to acquire additional shares in Rimfire, and to fund certain earn-in and joint venture arrangements that Mr Giovinazzo had negotiated (on behalf of the Company) with Rimfire. We are instructed that Mr Giovinazzo sought:

(A) immediately, a further $50,000 in order for the Company to acquire a further 10,000,000 shares in Rimfire (Fourth Loan); and

(B) on an ongoing basis, approximately a further $4 million over three years to enable the Company to make certain payments to Rimfire that it had agreed under earn-in and joint venture arrangements negotiated by Mr Giovinazzo (Loan Facility).

(v) Critically, we are instructed that Mr Billis said to Mr Giovinazzo that he would only agree to advance these funds (including the $4 million under the Loan Facility) if RCL owned and had control of the Company. That such a demand was made is not surprising. In addition to the funds advanced (or being advanced) to allow the Company to acquire a total of 85,000,000 shares in Rimfire, RCL could be advancing a further $4 million to the Company in circumstances where the Company had insignificant assets and no ability to provide security for repayment of the loan funds. That level of funding, which effectively amounted to full and complete funding for all of the Company's business ventures, would understandably ordinarily mandate total legal and beneficial ownership and control of the Company by the financier in the absence of other adequate security.

(vi) We are instructed that Mr Giovinazzo (on behalf of the Company) and Mr Billis (on behalf of RCL) agreed that $990 would be paid by RCL for the issue of 990 new shares in the Company. Those 990 shares would be issued to and beneficially held by, RCL. The remaining 10 shares would continue to be owned, but not beneficially held, by Tarina Lee Holdings Pty Ltd.

(vii) Rather than RCL transferring to Mr Giovinazzo (on behalf of the Company) a further $990 for the issue of the 990 shares, Mr Billis requested that $990 should be set-off or used from the amount of the Third Loan. That is, and as a result of this arrangement, the balance of the Third Loan was reduced to $19,100. We are instructed that Mr Giovinazzo agreed to this.

(viii) On or about 16 September 2020, Mr Giovinazzo caused to be transferred the $990 advanced by RCL, as its capital contribution for the 990 shares in the Company. Again, that Mr Giovinazzo recorded this transfer as 'Resource Capital share payment' is telling.

(d) For the reasons above, RCL maintains its position that it paid $990 for the issue of 990 shares in the Company which it was to legally and beneficially hold. Our client maintains that it continues to hold those shares beneficially for itself. The fact that ASIC's records incorrectly record these shares as being held 'non-beneficially' is of no consequence and our client was not involved in lodging any documents with ASIC.

(e) For the sake of completeness, Mr Billis rejects firmly that he said the words attributed to him in the 'entry' for 21 July 2021 and the handwritten document entitled 'Golden Plains Resources Minutes' enclosed with your letter.

2 CX Law did not act for RCL or Mr Billis

(a) We are instructed that neither CX Law nor Lee Christensen has acted for RCL, Lake Grace or Mr Billis in relation to this matter.

(b) The draft Deed attached to Mr Christensen's email to Mr Giovinazzo on 22 June 2022 was not drafted in accordance with or on Mr Billis' instructions, and was never approved by Mr Billis. This ought to be apparent from the fact that Mr Billis has never executed any version of the Deed on behalf of RCL, nor did he indicate that he agreed with the contents of the Deed (and, in fact, other emails between Mr Billis and Mr Christensen clearly indicate that Mr Billis did not agree with the terms put forward).

(c) We are instructed that CX Law was retained by the Company (and not by RCL or by Mr Billis) after Mr Billis expressed a desire to Mr Giovinazzo that the funding arrangements outlined in Part 1 above be formally documented.

(d) We are instructed that Mr Giovinazzo dealt with Mr Christensen at CX Law on behalf of the Company. This is apparent from another email from Mr Christensen (which was enclosed with your letter) dated 30 March 2022 in which he emailed Mr Giovinazzo (and not Mr Billis) seeking instructions with respect to various matters concerning 'Golden Plains Resources'.

(e) We are further instructed that Mr Billis did attend a meeting at the offices of CX Law with Mr Giovinazzo in or around early-April 2022. While Mr Billis was present for the first part of that meeting, he subsequently departed and left Mr Giovinazzo to discuss matters with Mr Christensen.

(f) Other emails exchanged between Mr Christensen and Mr Billis after 22 June 2022 make it very clear that CX Law was not acting for RCL or Mr Billis or on their instructions.

3 Nothing can be made of the draft Deed

(a) In any event, nothing at all can be made of the draft Deed attached to Mr Christensen's 22 June 2022 email.

(b) The draft Deed does not state that the 990 shares registered in the name of RCL are beneficially held for Mr Giovinazzo, nor can that be reasonably inferred.

(c) To the extent that the draft Deed needs to 'make sense' (upon which Mr Billis cannot comment given that it was not prepared on his instruction), it makes just as much 'sense' in the light of the state of affairs according to RCL and Mr Billis, as outlined in this letter.

4 Final comments

(a) We trust that this letter clarifies matters in terms of the legal and beneficial ownership of the 990 shares in the Company registered in the name of RCL.

(b) Separately, we note that we have not received any response to our letter dated 21 July 2022 (noting, again, that your recent letter incorrectly refers to our 21 July 2022 letter, instead of our 20 July 2022 letter).

(c) Please confirm whether your client intends to instruct you to respond to our 21 July 2022 letter, including the demand by our clients (which now includes the Company) that your client authorise Davenport Taylor to release the corporate documents of the Company to us without delay.

(d) Please also confirm whether your client intends to address the other matters in our 21 July 2022 letter regarding the unauthorised and improper purported issue of 9,000 new shares in the Company by Mr Giovinazzo on 19 July 2022.

(e) We have now been instructed to commence proceedings in the Supreme Court of Victoria seeking declaratory and other ancillary relief in relation to, amongst other things, the purported or attempted issue of these shares to Mr Giovinazzo. If your client wishes to respond to any part of our 21 July 2022 letter before those proceedings issue, he should instruct you to do so as soon as possible.

180 On 15 August 2022, Tisher Liner FC Law responded to JWS on Mr Giovinazzo's behalf. Tisher Liner FC Law had now been instructed in lieu of McKean Park and purported to respond to the letters of 20, 21 and 29 July 2022. The letter from Tisher Liner FC Law relevantly read as follows:

The GPR shares are held by RCL as security

We are instructed that RCL holds 990 shares in GPR (the GPR shares), which shares secure advances made by Mr Billis (through his related entities) to Mr Giovinazzo and at his direction on and from 24 September 2020 (the Advances).

On the basis of your letter dated 29 July 2022, we understand it is common ground that the GPR Shares were issued to RCL in the nature of security for those same advances.

No entitlement to exercise the rights of the GPR Shares

It was a term of the giving of that security by Mr Giovinazzo that your client may only have recourse to those shares, including to exercise the rights attaching to them, in the event of a default of repayment of the Advances. No such default has taken place.

In those circumstances, your client has, and had, no entitlement to exercise any of the rights attaching to the 990 shares it held in GPR, including by signing the circulating resolutions dated 18 and 20 July 2022 which purported to remove and replace Mr Giovinazzo as director of GPR and to remove him as company secretary.

It follows those resolutions are of no effect. It also follows that it would be inappropriate for our client to release any corporate documents of GPR.

Further issue of security

We are further instructed that on 15 September 2020, Mr Giovinazzo and Mr Billis executed a transfer form by way of further security for the Advances, which provided for the transfer from Omeo Gold Pty Ltd to RCL of 7 million shares in Australian Business Advancement Cooperative Ltd.

On or around 28 February 2022, a transfer form was rescinded by agreement between Mr Giovinazzo and Mr Billis, and in its place, Mr Giovinazzo directed that 5.7 million shares in Apple iSports Inc (the Apple Shares) be transferred from Omeo Gold Pty Ltd to RCL, to be held by RCL's further security for the Advances.

We are instructed that RCL continues to hold those shares, together with the GPR Shares, by way of security for the Advances.

Issue of shares on 19 July 2022

On 19 July 2022, 8,910 shares in GPR were issued to Mr Giovinazzo and a further 90 shares were issued to Tarina Lee Holdings Pty Ltd. We are instructed those shares were issued pursuant to an Employee Stock Options Agreement entered into by GPR and Mr Giovinazzo on 3 August 2021.

A copy of that agreement can be provided upon confirmation that your client agrees to keep it confidential.

Redemption of the GPR Shares and the Apple Shares

Our client instructs that the total amount secured by the GPR Shares and the Apple Shares is $3,815,000 which comprises amounts advanced at Mr Giovinazzo's direction to GPR and to Rimfire Pacific Mining NL (Rimfire) as follows:

...

Our client intends to repay the amount owing to Mr Billis and so to redeem the GPR Shares and the Apple Shares. We therefore ask your client to please confirm:

(a) the GPR Shares and the Apple Shares secure the amount of $3,815,000 advanced by Mr Billis (through his related entities RCL and Lake Grace Exploration Pty Ltd); and

(b) on repayment by our client of the amount of $3,815,000, your client will take all necessary steps to cause the GPR Shares and the Apple Shares to be transferred to our client (or his nominee).

If your client does not accept that the amount secured by the GPR Shares and the Apple Shares is the sum of $3,815,000, we ask that you please provide a payout figure in relation to the amount it says is secured by those shares.

We note that Mr Billis has made other loans to Mr Giovinazzo, which are the subject of paragraphs 1(c)(i), (ii), (iii) and (iv)(A) of your letter dated 29 July 2022. We will correspond with you separately concerning those loans, which are subject to different security arrangements to those set out above.

181 JWS responded to Tisher Liner FC Law by letter dated 18 August 2022. Relevantly, the letter in response read as follows:

Our client denies the assertions in your letter:

1. Firstly, that the funds advanced under the Loan Facility (or Advances as those funds are defined in your letter), were to Mr Giovinazzo personally and not to GPR. We note in this regard that the financial statements of GPR record the funds advanced as a liability of GPR.

2. Secondly, that the GPR shares are held by RCL as security for the Advances under the Loan Facility.

RCL's position remains that it beneficially holds the GPR shares. Accordingly, our client can validly exercise, and has validly exercised, its rights attaching to its GPR shares. As a result, the removal of Mr Giovinazzo as a director, and the appointment of Mr Douglas and Mr Berzins was valid and of full effect.

In relation to the issue of shares on 19 July 2022, our client is unaware of any purported Employee Stock Options Agreement entered into by GPR. Please provide a copy of the Employee Stock Options Agreement referred to in your letter and any related agreements. Our position otherwise remains unchanged that the purported issue of shares by Mr Giovinazzo on 19 July 2022 was unauthorised.

182 It is convenient to say something now about the ABA shares and the Apple iSports shares. Mr Giovinazzo's former employer, ABA Resources, had mining interests which included the Mt Wills Goldmine in Omeo. The entirety of the shares in ABA Resources were owned by a cooperative, ABA. As ABA is a co-operative, its shares are not tradeable on the open market in the same way as publicly listed shares.

183 In the Defence and Counterclaim, the Giovinazzo Parties plead that Omeo Gold held 7 million shares in ABA between 15 September 2020 and 18 February 2022.

184 On 30 April 2024, RCL's solicitors served a notice to produce on the solicitors for the Giovinazzo Parties. The notice to produce sought production of documents 'evidencing or relating to Omeo Gold holding 7 million shares in [ABA] between 15 September 2020 and 18 February 2020' including but not limited to the application by Omeo Gold for the ABA shares, the payment by Omeo Gold in respect of the issue of the ABA shares, the issue of the ABA shares to Omeo Gold and the share register of ABA between 15 September 2020 and 18 February 2022. The notice to produce resulted in the production of documents which included an email from a Peter Lombardo sent to Mr Giovinazzo dated 3 October 2020 with the subject 'draft register' which attached what purported to be a draft register which recorded numerous shareholders including Omeo Gold which held 7 million shares, along with another page in the document which did not list Omeo Gold but rather lists Cres Pty Ltd ('Cres') as a principal shareholder, holding 14,070,000 shares. Cres is apparently associated with Mr Sussich.

185 Separately, Mr Giovinazzo was taken to another document which purported to be a share certificate in ABA dated 31 December 2017 which recorded Mr Giovinazzo's wife, Ms Bidstrup, as trustee for the Redgum Court Trust, a the registered holder of 10 million ordinary shares. This seemed to match an entry in the draft register which recorded an allotment of 10 million shares to her on 31 December 2017 with a notation 'these were given to Karen Bistrup (sic) ATF Redgum Court Trust as part of the purchase. Have to be returned to Cres.'

186 When Mr Giovinazzo was cross-examined about the share certificate in Ms Bidstrup's name, he explained that the shares held by Ms Bidstrup had been transferred to Omeo Gold in or around February 2020.

187 In response to a further call for production made during the course of cross-examination, Omeo Gold produced a transfer dated 20 February 2020 which evidenced the transfer from Ms Bidstrup to Omeo Gold of 10 million shares for the purchase consideration of $1,000.

188 The position is less than clear as to why the transfer from Ms Bidstrup to Omeo Gold was not produced in relation to the notice to produce served 30 April 2024. On the most favourable view of the evidence for the Giovinazzo Parties, Omeo Gold held 10 million shares from about February 2020 of what appear to be the 114,878,847 shares issued in ABA. Mr Giovinazzo accepted in cross-examination, that his attempts to date at generating funds via the sale of the ABA shares have been unsuccessful.

189 The position in relation to the Apple iSports shares is similarly unorthodox. A 'Form 8-K' dated 24 March 2023 apparently lodged at the United States Securities and Exchange Commission records that a company then known as 'Prevention Insurance.com' closed a share exchange with Apple iSports, a Delaware corporation, and its subsidiary, Apple iSports Australia Pty Ltd. Pursuant to the share exchange, Prevention Insurance.com issued Apple iSports shareholders, shares in Prevention Insurance.com at a par value of $0.001 per share in exchange for all the issued and outstanding capital stock of Apple iSports. The result of this transaction is that all shareholders in Apple iSports sold their shares to Prevention Insurance.com with the consideration being the issue of shares in Prevention Insurance.com. As noted earlier, Mr Giovinazzo referred to this as a reverse takeover and said in evidence that Prevention Insurance.com has changed its name to 'Apple iSports Group, Inc'. The Form 8-K shows that the largest shareholder in Apple iSports Group, Inc is Cres as trustee for the Cres Discretionary Trust No 2. As noted earlier, Cres is an entity associated with Mr Sussich.

190 In his evidence-in-chief, Mr Giovinazzo said that the effect of the reverse takeover was that Apple iSports was issued with 200 million shares in Apple iSports Group, Inc and that Omeo Gold had 5% of these shares. That cannot be right. The shareholders in Apple iSports were issued shares in Apple iSports Group, Inc. In evidence-in-chief he said that he directed that 5.7 million shares be registered in RCL's name to be held on trust for him. In cross-examination, he was taken to a document which listed those who had received shares in Apple iSports Group, Inc after the reverse takeover which list did not include Omeo Gold (or RCL); Mr Giovinazzo said that this was because the shareholdings in Apple iSports Group, Inc were held within the Cres Trust.

191 As noted above, on 28 February 2022, Mr Sussich emailed Mr Giovinazzo enclosing a stock certificate for Apple iSports which certified that RCL was the owner of 5.7 million shares in Apple iSports. The certificate purports to have been issued on 1 March 2022 and identifies the numbers of the shares held by RCL as numbers 3,500,000-9,200,000. There are a number of obvious difficulties with this certificate; 'Apple iSports Inc' is a slightly different name to that set out in the form lodged with the United States Stock Exchange which refers to the entity as Apple iSports, Inc (i.e. a comma follows iSports before Inc); secondly, if RCL was the owner of the shares in that company bearing numbers 3,500,000-9,200,000, it would own 5,700,001 shares, not 5,700,000 shares. Further, the certificate sent by Mr Sussich to Mr Giovinazzo on 28 February 2022 however had been issued, purportedly under the hand of the President of Apple iSports Inc, in Delaware on 1 March 2022. Given the time difference, this is simply not possible; the US time is one day behind, not one day before the Australian Eastern Daylight Time. It is also clear from the evidence that the form of the certificate is a perfect match for a template readily obtainable on the internet. The stock certificate issued to Omeo Gold suffers from the same deficiencies. Mr Giovinazzo forwarded this email to Mr Booker on 28 February 2022 and then to Mr Billis on the same day.

192 The certificate is not a genuine document issued by the president of Apple iSports. As the certificate, however, had its origin in an email from Mr Sussich, there is no sufficient basis on the evidence to make any findings adverse to Mr Giovinazzo.

193 One available inference from these rather unusual documents and the most favourable to the Giovinazzo Parties is that the shares in Apple iSports prior to the reverse takeover were held by Cres on some form of trust for a group of investors which included Omeo Gold and, so it would seem, RCL. Further that the creation of the stock certificates in Apple iSports was something which Mr Sussich put in place for some reason, possibly to provide those who held interests in the Cres holding, some form of comfort or verification as to their interest. Suffice to say, any interest owned by Omeo Gold or, for that matter, RCL is of a most unconventional nature.

194 Mr Giovinazzo was cross-examined and accepted that he has been unsuccessful in generating any funds via the sale of any of his shares in Apple iSports in March 2022 or October 2022.

195 In re-examination, it was put to Mr Giovinazzo that he had accepted that he hadn't sought to test the market for Apple iSports shares 'personally'. He was then asked whether he was aware of sales which he confirmed saying 'I can recall multiple sales by Marino Sussich at $1 to, ah, some of my associates, friends'. He then named Mr Booker and Mr Nairn. He was then asked whether he was aware of any sales of Apple iSports shares to Mr Davenport. He answered by saying that Omeo Gold had in fact recently sold Apple iSports shares to Mr Davenport for $1 a share.

The Giovinazzo Parties application to call further evidence

196 This proceeding was commenced by originating process filed 22 August 2022. On 10 October 2022, Justice Connock made orders, inter alia, that the evidence at trial be given by witness statement, that the plaintiff file and serve its lay witness statements first, that the defendants file and serve lay witness statements in response with the plaintiff then filing and serving any lay witness statements in reply.

197 Orders were also made for various other procedural steps such as the filing of a Court Book, a chronology and an agreed list of issues. By subsequent orders by consent, the time for completion of these steps was extended and in the result, the parties filed and served the following documents during 2023:

(a) witness statement of Mr Billis made 30 March 2023;

(b) witness statements relied upon by the defendants of Mr McDonald, Mr Connelly and Mr Giovinazzo made 2 May 2023, undated but filed 8 March 2023 and made 8 May 2023 respectively;

(c) witness statement of Ms Pendergast made 23 June 2023;

(d) witness statement in reply of Mr Billis made 27 June 2023;

(e) Court Book filed on 26 July 2023 ('CB');

(f) outline of opening submissions 18 August 2023 (plaintiff) 4 September 2023 (defendant);

(g) agreed list of issues dated 8 August 2023.

198 By orders made 4 October 2023, the proceeding was set down for trial commencing 7 May 2024, on an estimate of 6 to 7 days.

199 At a directions hearing before his Honour on 15 March 2024, counsel for RCL observed that the proceeding had been effectively ready for trial for six months. Counsel sought the earliest trial date on the basis that GPR was under the control of Mr Giovinazzo, who on RCL's case was not a director. At this hearing, his Honour informed the parties that given the nature of the contested evidence, he considered that it would be appropriate that evidence-in-chief be given orally not by witness statement. Save for some discussion about the effect on the trial duration, neither party opposed that course.

200 Relevantly at the directions hearing, counsel for the Giovinazzo Parties noted that the Giovinazzo Parties had pleaded in the Defence and Counterclaim various loans made by Omeo Gold to GPR which were used by GPR to meet its obligations under the Rimfire Agreements. Counsel noted that at the time the pleading was filed the information was current however time had passed since then such that it was the Giovinazzo Parties' intention to provide up-to-date information as to the amounts advanced, any amounts that had been repaid and any capitalised interest. This was to be done by further particulars or the provision of documents that the so Court and the parties would have current information about the loans at the time of trial.

201 The discussion about trial duration led to the subsequent preparation of an agreed trial plan which took into account witness and counsel availability and contemplated the evidence concluding on 16 May 2024 and final submissions being heard the week commencing 17 June 2024. When the matter returned before Justice Connock for further directions on 27 March 2024, his Honour advised the parties that the trial would proceed before me and that, subject to further order, would commence on 6 May 2024.

202 On Sunday 5 May 2024 at 8:37pm, the solicitors for the Giovinazzo Parties emailed my chambers and the solicitors for RCL enclosing a Supplementary Court Book containing documents bearing tab numbers 230-249 ('SCB'). The documents so contained included five documents of which four had previously been listed in the supplementary affidavit of documents made by Mr Giovinazzo on 22 December 2022 but had been the subject of a claim for legal professional privilege. When the SCB was served, there was no accompanying letter or explanation advising that the documents so served had previously been the subject of a claim for legal professional privilege and why that claim was no longer being pressed.

203 At 10:40pm, RCL's solicitors served a second Supplementary Court Book containing documents bearing tab numbers 250-259 ('2SCB').

204 It is unfortunate but not uncommon for parties to seek to supplement a Court Book which has been filed compliantly with Court orders for various reasons. It should of course be the case that the parties have taken sufficient care in the preparation of the Court Book itself to ensure that all documents upon which they seek to rely are included and that it is served and filed in accordance with orders. The practical reality is that from time-to-time parties omit certain documents inadvertently or which upon reflection they wish to rely and which are then sought to be incorporated in the Court Book.

205 Where the further documents have previously been discovered and/or are uncontroversial in nature, such a course presents little difficulty. Such was the case with the 2SCB in which RCL included various ASIC company searches of documents pertaining to the companies relevant to this proceeding.

206 The SCB filed by Mr Giovinazzo and Omeo Gold fell into a different category. Aside from the unobjectionable inclusion of four letters passing between the parties' respective solicitors in the period from 29 July 2022 to 4 September 2022, it included five items which had not previously been seen by RCL and which had been included amongst the twenty items contained in the SCB[18] with nary a mention of the fact that some of them were being provided to RCL for the first time on the Sunday night before RCL was to open its case.

207 Relevantly, the documents provided to RCL for the first time included the email from Mr Christensen to Mr Giovinazzo with the subject 'contract' attaching a draft repayment deed sent at 6:03pm on 22 June 2022. The email had been discovered but not inspected due to the claim of legal professional privilege. Mr Billis was cross-examined at some length about the email and attached draft deed. The documents also included, the never discovered (not even subject to a claim of legal professional privilege) invoice number 1405 dated 31 March 2022 prepared by CX Law, invoice number 1428 dated 30 April 2022 prepared by CX Law, an email from Mr Christensen to Mr Giovinazzo dated 27 June 2022 responding to an email from Mr Giovinazzo which was a response to an earlier email from Mr Christensen attaching invoice number 1462 prepared by CX Law dated 31 May 2022. Invoice number 1501 prepared by CX Law dated 30 June 2022 was also included in the documents which had been previously discovered but not produced as it was subject to a claim of legal professional privilege. Mr Billis was cross-examined about the invoice of 31 March 2022 in particular at some length.

The Giovinazzo Parties give notice of the application to call further evidence

208 Counsel opened RCL's case for about two hours in the morning of 6 May 2024. Towards the end of counsel's opening and after highlighting the Giovinazzo Parties version of the agreement that the GPR Shares were held on trust as alleged in paragraph 6 of the Defence and Counterclaim, counsel noted that this agreement was not supported by the contemporaneous documents. Counsel for RCL stated, 'and not only was there no record of it at that time, but when a solicitor sought to document the arrangement some two years later, which Mr Giovinazzo himself signs, Mr Billis doesn't execute the document'. Counsel further submitted that the document signed by Mr Giovinazzo 'looks nothing like what's pleaded in paragraph 6B_'_.

209 Counsel opened the case for the Giovinazzo Parties in the afternoon of 6 May 2024.

210 No party sought an order for witnesses out of court.

211 Mr Billis commenced his evidence-in-chief in the morning of 7 May 2024. Mr Billis' evidence-in-chief was of a fairly confined nature and took only approximately one hour. Mr Billis was then cross-examined for the balance of the second day, and on the third day from 12:15pm to 2:00pm and then for about a further half hour in the afternoon. Mr Billis' cross-examination was then concluded but he was not excused because of an outstanding call for production.

212 Mr Billis was cross-examined at some length on the dealings with Mr Christensen and Mr Giovinazzo alleged to have taken place in the period from 31 March 2022 to about mid-June 2022 and which ended with Mr Billis' emails, set out above, to Mr Christensen on 28 June 2022, stating 'Lee NO NO NO', and 'Lee NO NO NO Lee, I am not a Donkey'. Mr Billis was also cross-examined on the invoice dated 31 March 2022 and about the previously allegedly privileged email from Mr Christensen to Mr Giovinazzo dated 22 June 2022 in which Mr Christensen wrote that the draft now sent to Mr Giovinazzo had been prepared on Mr Billis's instructions (which Mr Billis denied).

213 The cross-examination included questions which proceeded on the express premise that Mr Christensen was acting for Mr Billis at the time of the meetings in 2022. Mr Billis denied this. Further, it was put to Mr Billis in cross-examination that he had attended the meeting with Mr Christensen and Mr Giovinazzo 'for the purpose of, as your counsel said, endeavouring to formalise what had been agreed'.

214 The Court did not sit on 9 and 10 May 2024 and the further hearing of the trial was adjourned over to the following Monday 13 May 2024.

215 On Friday 10 May 2024 at about 7:39pm, the solicitors for the Giovinazzo Parties emailed my chambers, copied to the solicitors for RCL, advising that:

In response to a number of matters raised by Mr Billis in his evidence, our client intends to seek leave on Monday morning to call Mr Lee Christensen and Mr Richard Davenport to give evidence at the trial (and to issue a subpoena to Mr Christensen to attend to give evidence). An outline of their expected evidence is attached.

If leave is granted, we anticipate needing to ask Mr Billis a few additional questions (not more than 30 minutes) to ensure that any matters to be put to Christensen and Davenport have also been put to him. For the most part their evidence is expected to be responsive to answers given by Mr Billis and so this won't be necessary.

216 This was the first occasion on which RCL had been informed of the intention to seek leave to call Mr Christensen and Mr Davenport. There was no mention of the intention to seek to rely on additional documentary evidence.

217 On Sunday 12 May 2024 at 11:13am, the solicitors for the Giovinazzo Parties served a fourth supplementary Court Book comprising an additional 82 documents ('4SCB'). These documents related to the GPR/Omeo Gold Loan Agreements.

218 On the morning of 13 May 2024, prior to the trial resuming, the solicitors for the Giovinazzo Parties served an affidavit in support of the application to seek leave to subpoena Mr Christensen to give evidence at trial in the proceeding. In the affidavit, the solicitor, Robert Oxley, deposed to his firm emailing Mr Christensen on 25 August 2022 asking for his availability to participate in a phone call the following week. In the covering email, the solicitor wrote:

We understand from Mike that you have agreed to speak to us in relation to your knowledge of the above matter.

Mr Christensen advised in response that he was reluctant to accept the invitation to speak given his relationship with Mr Billis. He asked for some details of the topics discussed, which were provided, which culminated in Mr Christensen advising by email sent 1 September 2022 that 'at present I do not intend having any discussions with you'.

219 Mr Oxley's affidavit deposed to the fact that on Friday 10 May 2024, the firm again contacted Mr Christensen, where it engaged in a privileged conversation with him. The affidavit then deposed to the service of the statement of expected evidence of Mr Christensen. The obvious inference is that having heard Mr Billis' evidence, the solicitors re-engaged with Mr Christensen whose previous reluctance to give evidence had seemingly passed. The affidavit did not otherwise explain why no attempt had been made earlier to subpoena Mr Christensen or explain why the application was being made now in light of the previous directions for the filing of evidence.

220 The affidavit did not address Mr Davenport or his proposed evidence.

221 When the matter resumed on 13 May 2024, I heard the application for leave to call Mr Christensen and Mr Davenport and to recall Mr Billis for further cross-examination.

222 RCL opposed leave being given to call Mr Christensen and drew attention to the directions made in advance of trial which contemplated a regime for the provision of witness statements on a staggered basis including giving Mr Billis the right to put on a statement in reply.

223 Counsel for RCL said that he had made a deliberate forensic choice, in light of the evidence that had been foreshadowed by those witness statements and on the basis of the material that had been filed in the CB, not to adduce evidence-in-chief from Mr Billis in relation to the dealings with Mr Christensen and Mr Giovinazzo from late March 2022 to early June 2022. Counsel acknowledged candidly that given the lateness of the service of the SCB on 5 May 2024, he had not taken instructions from Mr Billis concerning those documents when the case commenced and when Mr Billis gave evidence-in-chief. It is entirely understandable that RCL prepared the case for trial and made forensic decisions on the basis that Mr Christensen was not giving evidence and that the Giovinazzo Parties intended to rely only on the documents included in the CB. The objection was reinforced by counsel's submission that the position with respect to the provision of documents pertaining to Mr Christensen's involvement was most unclear including because documents had been included in the SCB which had not previously been discovered at all, or if discovered, had been the subject of a claim for legal professional privilege. Counsel submitted that there was uncertainty as to whether RCL had been provided with all the documents relevant to Mr Christensen's intended evidence.

224 Counsel for the Giovinazzo Parties submitted that the need to call Mr Christensen arose in response to evidence given by Mr Billis in cross-examination which, it was submitted, took the Giovinazzo Parties by surprise. Specifically, counsel submitted that the Giovinazzo Parties had been taken by surprise when Mr Billis said that the repayment deed prepared by Mr Christensen did not reflect Mr Billis' instructions and by Mr Billis' answer that Mr Christensen and Mr Giovinazzo had sought to impose on Mr Billis a different agreement rather than trying to document that which had been previously agreed. Further, insofar as the SCB included other documents that had not been discovered, counsel stated that the documents passing between Mr Billis and Ms Vaughan had not been discovered on the basis that they were documents to which Mr Billis was also party. Counsel further submitted that, in any event, there had been no order for discovery[19] and that the invoices from Mr Christensen may not have been discovered but they were included in the SCB. Counsel then stated that he had been told that there might be some further communications over which privilege was claimed that now might need to be produced given the evidence being led.

225 I refused the application and provided brief reasons orally. I indicated that I would expand on the oral reasons in the reasons for judgment.

226 I accepted that counsel for RCL had made forensic choices based upon the evidence that had been proposed to be led and the documents that had been discovered and included in the parties' respective tender lists (and then included in the CB). I also expressed my concern about the fact that even at this stage, the extent of the disclosure with respect to Mr Christensen's evidence was quite unclear and that I considered that for Mr Christensen's evidence to have any utility or to be able to be reasonably tested, RCL may well likely wish to inspect any file maintained by Mr Christensen. I also observed during the course of discussion that the claims for legal professional privilege, with respect to communications between Mr Christensen and Mr Giovinazzo or GPR, were fundamentally at odds with the propositions put to Mr Billis in cross-examination to the effect that Mr Christensen was acting for Mr Billis when preparing the repayment deed.

227 If it was the case that the Giovinazzo Parties were taken by surprise by Mr Billis' evidence, they ought not to have been. It was tolerably clear from a review of the documents in respect of which Mr Billis was cross-examined that he did not agree with the repayment deed prepared by Mr Christensen. Further, the letter from JWS to McKeon Park dated 29 July 2022 stated in the clearest terms that Mr Billis did not instruct CX Law, that the deed was not prepared on his instructions and that his disagreement with it was conveyed by his refusal to sign. This was the obvious inference to be drawn from the documents that had been included in the CB filed timeously, and even those in the late filed SCB which had been seen by the Giovinazzo Parties alone. Mr Billis did not sign the repayment deed and conveyed his refusal to do so in blunt and unequivocal terms to Mr Christensen.

228 Counsel submitted that the Giovinazzo Parties were not taken by surprise by Mr Billis' failure to sign the repayment deed per se but rather that the surprise was limited to Mr Billis' failure to agree that the particular version of the deed sent to Mr Giovinazzo on 22 June 2022, was prepared on Mr Billis instructions. This argument is equally unpersuasive. It is unorthodox for Mr Christensen to have sent a draft of the deed direct to Mr Giovinazzo, as in fact occurred and not to Mr Billis for confirmation, if he had prepared it on Mr Billis' instructions. The incongruity of such a step is readily explained if Mr Christensen was acting for Mr Giovinazzo not Mr Billis (despite the approach taken in cross-examination). Given that the email of 22 June 2022 had not been provided to RCL for inspection until the evening of Sunday 5 May 2024, it is unsurprising that Mr Billis had not sought to directly address the notion that the repayment deed had been prepared on his instructions. This followed from the fact neither he nor his legal advisers had been accorded the opportunity of seeing the email until, at the earliest, the night before the trial commenced, as the Giovinazzo Parties had maintained a claim for legal professional privilege from December 2022 until the eve of trial when evidently a decision was made to deploy the document for forensic advantage.

229 Where a witness gives evidence at trial contrary to a previous representation made by the witness, the change may take the other party by surprise. In such circumstances the party taken by surprise will likely seek to cross-examine the witness on the previous inconsistent statement but perhaps may also seek to call further evidence to prove a matter now disputed by the witness. Where the change is material and could not have been reasonably anticipated, allowing the other party to call further evidence may well be in the interests of justice. It is another thing entirely however where the other party is purportedly taken by surprise by a witnesses response to a third party document, particularly where the third party document had not been earlier provided to the witness.

230 In fact at the time of the making of the application, and its refusal, the Giovinazzo Parties had not provided RCL with copies of other formerly allegedly privileged documents, the subsequent provision of which made it even clearer that Mr Christensen was taking instructions from Mr Giovinazzo, not Mr Billis and that Mr Billis had in fact expressed his dissatisfaction with the repayment deed before 28 June 2022 as evidenced by the email of 6 June 2022 where his disagreement with the repayment deed draft is recorded.

231 For completion, I also note that the failure to subpoena Mr Christensen at an earlier stage was not explained. Clearly, the defendants apprehended the potential relevance of Mr Christensen's evidence. So much is clear from their attempt to speak with him in 2022 and from the line of cross-examination pursued with Mr Billis.

232 The failure to give notice of the intention to call Mr Christensen until Mr Billis' cross-examination had been completed coupled with the late, or non-existent provision of documents which the Giovinazzo Parties alone had seen, meant that the Giovinazzo Parties had the opportunity to deploy relevant evidence at the time of their choosing, without proper notice and after RCL had made forensic decisions accordingly. These matters gave rise to a denial of procedural fairness.

233 It is tolerably clear that the Giovinazzo Parties went back to Mr Christensen after hearing Mr Billis' evidence including in respect of the subject matter of the previously privileged documents. They did so unfettered by the restrictions which would have arisen from an earlier order for witnesses out of court, which had not been sought by RCL, no doubt influenced by the notice that had been given by the Giovinazzo Parties of the witnesses that they intended to call which did not include Mr Christensen.

234 The fact that Mr Christensen was not willing to speak with the solicitors for the Giovinazzo Parties earlier was no barrier to serving a subpoena. I do not regard Mr Christensen's apparent change of heart after Mr Billis had given evidence as sufficiently excusing the failure to secure Mr Christensen's attendance in a timely fashion.

235 Having regard to the limited trial window available for the disposition of this claim and RCL's legitimate interest in clarifying the status of its shareholding in GPR, I was also concerned that calling Mr Christensen as a witness, particularly in circumstances where the attendant discovery issues remained not fully explained and seemingly incomplete, had the very real potential to result in the trial not being completed efficiently. Any delay in the resolution of the matter worked to RCL's very real prejudice for the reasons foreshadowed back on 15 March 2024. My concern that not all documents in the possession of the Giovinazzo Parties had been provided to RCL was validated when further documents were sent to RCL at 7:15pm on 13 May 2024 (the application having been refused in the morning). Three of those documents were significant and were tendered by RCL.

236 I should make clear that I accept without reservation that the failure to produce the allegedly privileged documents and make full discovery of the matters pertaining to the communications with Mr Christensen was inadvertent. I also accept without reservation that to the extent to which counsel's submissions in support of the re-opening omitted some details, this too was inadvertent and the product of incomplete instructions resulting from events proceeding at haste mid-trial.

237 The relevance of the evidence with respect to the attempts to draft a repayment deed to be executed by both Mr Billis and Mr Giovinazzo, in circumstances where that repayment deed was not executed, is limited to the extent to which the post-contractual conduct may inform the question of the identity of the parties who had entered into the contract[20] or whether the parties intended a document to give rise to a binding contract,[21] or in the case of an agreement which is oral, to identify the subject matter of the contract and to identify necessary terms which are not the subject of an express provision in a contract not reduced to writing.[22] I accept that subsequent conduct may be a relevant matter to consider in finding whether as a fact alleged oral promises were made and that depending on its content, such conduct may be a matter of significant weight in determining the subject matter of the alleged oral contract.[23]

238 However, care must be taken in applying that line of reasoning to the circumstances pertaining to the involvement of Mr Christensen because of the absence of consensus as to the terms produced by Mr Christensen, but more importantly because it is relatively plain on all parties' versions of events that Mr Christensen was seeking to document a new arrangement, not document 18 months later, the oral agreement entered into in or about September 2020. To take but one example to illustrate that proposition; on no parties' version of events given at trial did the September 2020 agreement provide that RCL could demand repayment of the debt by giving 30 days written notice at any time after 30 July 2022,[24] or was GPR to issue shares in its issued capital upon the debt being repaid to Trans Global, RCL, TLH and Omeo Gold in the amounts set out in clause 3.1. Nor, on anyone's version of events, did the September 2020 agreement involve any obligation on the part of RCL to deal with the share transfers that it held for the Rimfire shares, forwarded as security for the 15 May 2020 and 4 August 2020 loans to Omeo Gold, or any other issue of shares to RCL. Even putting to one side Mr Billis' disagreement with the terms as proposed, as conveyed unambiguously by his email sent to Mr Christensen on 28 June 2022, the evidentiary weight to be attributed to the April to June 2022 discussions and communications with respect to the repayment deed is limited insofar as they shed light on that agreed in September 2020.

Background to the application to call Mr Davenport and rely on the documents contained in the 4SCB

239 In order to place the circumstances of the late application to adduce evidence from Mr Davenport and the various documents tendered in the 4SCB in context, it is necessary to return briefly to the pleadings and the written and oral openings of the parties.

240 It is common ground that following the directors meeting held 28 July 2022 attended by Messrs Douglas, Berzins and Billis that the new directors considered that it was not appropriate for GPR to fund its further obligations under the Rimfire Agreements including in circumstances where Rimfire had voluntarily suspended the trading of its shares on the ASX. The suspension was apparently related to uncertainty in relation to the funding position, which in turn was seeded in the controversy over control of GPR which arose from Mr Giovinazzo's issuance of 9,000 shares in GPR to himself and TLH.

241 In any event, all funding requirements of GPR before then had been funded by Lake Grace (on Mr Billis' case, as agent for RCL) or RCL. In the event that GPR was unable to meet its obligations under the Rimfire Agreements, GPR was at risk of Rimfire terminating the agreements.

242 In the ASOC, under the subheading 'Purported borrowing of funds from Omeo Gold', RCL included in its claim allegations that in the period on and from 28 July 2022, Mr Giovinazzo had purported to cause GPR to borrow funds from Omeo Gold by executing eight agreements on behalf of both GPR and Omeo Gold, namely:

(a) a loan agreement between GPR and Omeo Gold dated 28 July 2022 providing for a loan by Omeo Gold to GPR of $550,000 for a term of one month at a standard interest rate of 21.82%;

(b) a loan agreement between GPR and Omeo Gold dated 28 August 2022 providing for a loan by Omeo Gold to GPR in the amount of $835,000 for a term of two months (having a due date of 28 October 2022) at a standard interest rate of 21.55% and on terms that included the grant by GPR to Omeo Gold of a security interest in GPR's present and after acquired property;

(c) a loan agreement between GPR and Omeo Gold dated 30 September 2022 providing for a loan by Omeo Gold to GPR in the amount of $265,000 for a term of two months (having a due date of 30 November 2022) at a standard interest rate of 20% and on terms that included the grant by GPR to Omeo Gold of a security interest in GPR's present and after acquired property;

(d) a loan extension agreement said to be made on 28 October 2022 that refers to a 'loan agreement ... signed on 28 October 2022 [sic] for the sum of $835,000 and maturing on 28 October 2022' and providing for the extension of the maturity date to 28 January 2023;

(e) a loan agreement between GPR and Omeo Gold dated 28 October 2022 providing for a loan by Omeo Gold to GPR in the amount of $134,166.67 for a term of three months (having a due date of 28 January 2023) at a standard interest rate of 20% and on terms that included the grant by GPR to Omeo Gold of a security interest in GPR's present and after acquired property;

(f) a loan agreement between GPR and Omeo Gold dated 28 November 2022 providing for a loan by Omeo Gold to GPR in the amount of $242,805.56 for a term of two months (having a due date of 28 January 2023) at a standard interest rate of 20% and on terms that included the grant by GPR to Omeo Gold of a security interest in GPR's present and after acquired property;

(g) loan extension agreement said to be made on 28 November 2022 that refers to a 'loan agreement ... signed on 30 September 2022 for the sum of $265,000 and maturing on 30 November 2022' and providing for the extension of the maturity date to 30 January 2023.

These loan agreements are referred to earlier in these reasons as the GPR/Omeo Gold Loan Agreements.

243 RCL alleged that by his execution of the GPR/Omeo Gold Loan Agreements on behalf of GPR, Mr Giovinazzo:

(a) purported to cause GPR to borrow funds from and provide security to a company related to Giovinazzo (Omeo Gold);

(b) purported to cause GPR to borrow funds from Omeo Gold in circumstances where:

(i) Omeo Gold is not a recognised provider of finance on commercial terms; and

(ii) no documents have been disclosed that suggest that such funds as were loaned to GPR by reference to the GPR/Omeo Gold Loan Agreements (if any) were directly deposited into the bank account of GPR by Omeo Gold (in the manner contemplated by the terms of the GPR/Omeo Gold Loan Agreements);

(c) purported to cause GPR to borrow funds on terms that obliged GPR to pay interest to Omeo Gold at interest rates that exceeded commercial interest rates;

(d) purported to cause GPR to incur liabilities in circumstances where GPR was not able to meet those liabilities as and when they fell due;

(e) failed to disclose to RCL that GPR intended to execute the GPR/Omeo Gold Loan Agreements; and

(f) failed to provide RCL with an opportunity (including in its capacity as a shareholder of GPR) to provide funding to GPR (including on terms more commercially favourable to GPR than the terms of the GPR/Omeo Gold Loan Agreements;

and thereby engaged in conduct which was contrary to the interests of GPR's members as a whole and/or oppressive and unfairly prejudicial to RCL.

244 RCL sought an order for an accounting of the benefits received by GPR and Omeo Gold in respect of any funds advanced pursuant to the GPR/Omeo Gold Loan Agreements and/or any payments made pursuant to GPR/Omeo Gold Loan Agreements (including in respect of interest).

245 In the Defence and Counterclaim, the Giovinazzo Parties admitted the entry into the GPR/Omeo Gold Loan Agreements and of a further three agreements, on 25 November 2022 (the 'Additional November 2022 Loan Agreement'), on 15 December 2022 (the 'December 2022 Loan Agreement'), and on 27 January 2023 (the 'January 2023 Loan Agreement'); and alleged the August, September, October and November 2022 loan agreements had been extended to 28 March 2023 with accrued interest capitalised and repayable on that date by agreement between GPR and Omeo Gold.

246 Further, the Giovinazzo Parties pleaded, inter alia, that by 28 July 2022, RCL had ceased to fund GPR's ongoing obligations to pay cash calls to Rimfire under the Rimfire Agreements, which agreements comprised GPR's only material assets, that any failure by GPR to pay cash calls as and when they fell due constituted a default within the meaning of the Fifield Earn-In Agreement and Avondale Earn-In Agreement which entitled Rimfire to terminate the relevant agreement with immediate effect. Relevantly, the Giovinazzo Parties then alleged that the funds advanced pursuant to the GPR/Omeo Gold Loan Agreements (including the Additional November 2022 Loan Agreement, the December 2022 Loan Agreement and the January 2023 Loan Agreement) 'have been used for the sole purpose of funding GPR's obligations under the Fifield and Avondale Agreements or refinancing funds advanced for that purpose'.[25]

247 In its written outline of opening submissions filed 18 August 2023, RCL adverted to the entering into of the GPR/Omeo Gold Loan Agreements which provided for the obligation to pay interest at rates ranging from 20% to 21.82% to an entity owned and controlled by Mr Giovinazzo which is not a recognised provider of finance, as well as provide security to Omeo Gold over all of GPR's present and after acquired property. The written outline of opening then stated the following:

1. Uncertainty surrounds the financial circumstances of Omeo Gold. For instance, Giovinazzo has not disclosed whether Omeo Gold funded the loans to GPR from Omeo Gold's existing cash reserves or, alternatively, whether Omeo Gold borrowed the funds from third parties. The sources of the funds advanced via the [GPR/Omeo Gold Loan Agreements] is material, as if the funds were provided by third parties, the terms upon which the funds were advanced to Omeo Gold could be assessed (relative to the terms of the [GPR/Omeo Gold Loan Agreements]), along with whether there was any commercial justification for interposing Omeo Gold between the source(s) of the funds and GPR, such as to purport to make Omeo Gold a secured creditor of GPR with an entitlement to receive interest from GPR accruing on the loan funds at a rate at, or exceeding 20% per annum.
2. According to Giovinazzo, the [GPR/Omeo Gold Loan Agreements] have been 'refinanced' and replaced by a 'single loan' between GPR and Omeo Gold (Refinance Loan) pursuant to which $2,083,013 was repayable on 28 May 2023 at a 'standard' interest rate of 20%. It is unclear whether Giovinazzo has caused GPR to pay amounts to Omeo Gold under the terms of the Refinance Loan.[26]

248 The Giovinazzo Parties outline of opening submissions dated 4 September 2023 stated the following:

1. From the end of May 2022, Billis ceased funding GPR's commitments under the Rimfire Agreements. So as to preserve those agreements and GPR's rights to earn an interest in the Fifield and Avondale Projects, and so as not to see all of his funding to date lost, Giovinazzo has since then caused Omeo Gold to loan funds to GPR to meet these commitments.
2. That funding has been significant. As at the date of Giovinazzo's witness statement (8 May 2023), Omeo Gold has provided more than $2 million pursuant to the [GPR/Omeo Gold Loan Agreements].
3. Giovinazzo's evidence is that, had he not caused Omeo Gold to advance these funds, GPR would have defaulted on its commitments under the Rimfire Agreements and Rimfire would have been entitled to terminate them.
4. Given Billis' own refusal to continue funding those amounts, the reasonable terms on which Omeo Gold has done so and the inescapable conclusion that, but for Omeo Gold's funding, GPR's entire business would likely have been lost, Giovinazzo's conduct in causing GPR to enter into those loans can only be seen as in the company's best interests and the interests of its members (and each of them).[27]

249 The Giovinazzo Parties discovered the following documents relating to the GPR/Omeo Gold Loan Agreements, which RCL foreshadowed an intention to tender in evidence and accordingly were included in the CB:

(a) Loan Agreement for $550,000 dated 28 July 2022;

(b) Loan Agreement for $835,000 dated 28 July 2022;

(c) Loan Agreement for $265,000 dated 30 September 2022;

(d) Letter from GPR to Omeo Gold dated 15 October 2022 headed 'Notice of Loan Extension';

(e) Loan Agreement interest only dated 28 October 2022;

(f) Loan Extension Agreement between GPR and Omeo Gold for $835,000;

(g) Loan Agreement commercial dated 28 November 2022;

(h) Loan Extension Agreement between GPR and Omeo Gold dated 30 September 2022 for $265,000;

(i) Refinance Loan Agreement between Omeo Gold and GPR dated 28 March 2023.

250 The above loan agreements are in similar form. Mr Giovinazzo has executed the documents on behalf of both GPR and Omeo Gold. There is nothing on the document to indicate who prepared the documents, such as the name of a solicitor or any other identifier.

251 In RCL's oral opening, counsel referred to the GPR/Omeo Gold Loan Agreements and observed that there had been no explanation proffered as to why Omeo Gold was the preferred lender to GPR or the source of Omeo Gold's funding and the terms upon which that funding had been obtained. Counsel continued his opening by stating that the GPR/Omeo Gold Loan Agreements were 'a difficult situation to deal with in the sense that at the moment [RCL's] on the outside looking in. [RCL] don't know what's actually transpired there'. Counsel stated that the relief that he was seeking in respect of those agreements was that the new directors should be given an opportunity to understand what has transpired, whether the money has been advanced, and the terms on which the loans were advanced.

252 Counsel highlighted paragraph 25 of the ASOC and in particular the allegation in paragraph 25(b)(ii) to the effect that no documents have been disclosed that suggested that the funds were directly deposited into GPR's bank account. Counsel said that RCL wanted to know where the money had gone.

253 In his oral opening, counsel for the Giovinazzo Parties accepted that he had previously told Justice Connock that he would produce a running account that showed the amounts that have been advanced pursuant to the GPR/Omeo Gold Loan Agreements and any amounts that have been repaid. Counsel then stated that 'although it hasn't been sought, I will also endeavour to get the underlying transaction documents of the same kind that are provided for the loans advanced by Mr Billis' entities to show that the payments have been made and that they've been applied to meet the earning obligations of GPR'.

The Giovinazzo Parties give notice of the application to call Mr Davenport

254 As noted above, on Friday 10 May 2024, the Giovinazzo Parties foreshadowed an application for leave to call evidence from Mr Davenport and, to that end, served an outline of his expected evidence. Relevantly, the outline stated that the Giovinazzo Parties intended to tender through Mr Davenport documents which recorded amounts advanced by Omeo Gold to enable GPR to meet its earning commitments including:

(a) cash call notices;

(b) loan agreements; and

(c) bank statements and other records.

255 As referred to above, on Sunday 12 May 2024 at 11:13am, the Giovinazzo Parties served a 4SCB comprising 82 documents of which only seven had previously been discovered. The seven that had been previously discovered were already in the CB, which meant that it contained 75 documents discovered for the first time. The 82 documents were categorised under various subheadings in the index to the 4SCB.

256 Sixteen documents were included under the subheading 'Loan Agreements' and comprised loan agreements between Omeo Gold and GPR. Of these 16 documents, the following nine had not previously been discovered despite Omeo Gold being a party to each of them:

• a version of the loan agreement dated 28 October 2022;
• a loan extension agreement made 28 January 2023;
• a loan agreement dated 28 January 2023;
• a loan agreement dated 28 March 2023;
• a loan agreement dated 28 March 2023 between National Wealth Education Group Pty Ltd ('National Wealth Education Group') and Omeo Gold;
• a loan agreement between Omeo Gold and GPR dated 12 April 2023;
• a loan agreement between Omeo Gold and GPR dated 26 April 2023;
• a loan agreement between Omeo Gold and GPR dated 28 September 2023; and
• a loan agreement between Omeo Gold and GPR dated 7 December 2023.

257 The next category of documents is headed 'Bank Statements' and comprised 13 documents being bank statements of GPR covering the period 31 October 2019 to 29 April 2024. GPR is a party to the proceeding and is presently in the control of Mr Giovinazzo. These documents had not previously been discovered.

258 The next category of documents comprise cash call notices said to have been issued by Rimfire to GPR in respect of the Rimfire Agreements which covered the period 1 May 2020 to 31 January 2024. These documents had not previously been discovered.

259 The next category of documents is listed under the subheading 'Bank Statements - National Wealth Education Group'. Despite that subheading, the first document is in fact a Macquarie Bank cash management account for the W & M Wagner Group Pty Ltd (the 'Wagner Group') which Mr Davenport later explained in evidence was a client of a financial planner with whom Mr Davenport had previously done some business. The bank statements for that account cover the period from 30 June 2022 to 31 August 2022 but all but two of the entries have been redacted. The two unredacted entries record two debits to the Wagner Group bank account, the first on 28 July 2022 with a notation 'OMEO GOLD - FINANCING FACILITY' records a debit of $250,000, whilst the second entry is dated 3 August 2022 and records a debit of $300,000 with the notation 'RIMFIRE - FINANCE FACILITY'. The balance of the documents in this category are bank statements of National Wealth Education Group. Mr Davenport gave evidence that he is a director of this company.

260 The next category of documents, under the subheading 'Rimfire Cash Call Receipts', comprise bank statements for three separate bank accounts held by Rimfire with Westpac Bank. These bank statements are redacted but show entries relevantly pertaining to the affairs of GPR.

261 As noted above, the affidavit of Mr Oxley filed in support of the application to call late evidence did not refer to Mr Davenport's evidence at all. As such the affidavit did not explain why the evidence had not been filed at an earlier stage or why the Giovinazzo Parties sought to rely on documents which had in large part been in their possession for some considerable time but not discovered. In the oral submissions made in support of the application, counsel initially argued that there had not been any request for the underlying transaction documents and there had been no orders for discovery but ultimately accepted that the documents should have been provided earlier.

262 In the end, reception of the evidence was pressed on the basis that the documents in the 4SCB constituted business records, which were admissible on that basis through Mr Giovinazzo who had not yet been called in any event, and that it was more convenient for that evidence to be adduced via Mr Davenport, who was the accountant for GPR and who had also prepared a spreadsheet, which was to be cross referenced to the underlying transaction documents. Further, the Giovinazzo Parties submitted that RCL was seeking an account of dealings in relation to the GPR/Omeo Gold Loan Agreements and that in substance this was now what was being provided.

263 RCL did not oppose reliance on the documents but submitted that the appropriate course was for these documents to be tendered through Mr Giovinazzo not Mr Davenport. In the result, I considered that the spreadsheet may assist in understanding the evidence and gave leave for Mr Davenport to be called. I stated that any objections could be made on a question by question basis.

264 Notwithstanding leave being given, the lateness of production, exacerbated by the lack of clarity in the documentary record, constituted an egregious failure by the Giovinazzo Parties to provide information about an issue which plainly arose between the parties. As the parties pleadings and openings made clear, whether the GPR/Omeo Gold Loan Agreements had been entered into, their validity, the sources of any funding provided by Omeo Gold, the terms on which the funding was provided and the use which GPR made of the moneys borrowed lay at the heart of this part of the case.

265 It is convenient to now refer to Mr Davenport's evidence about the GPR/Omeo Gold Loan Agreements.

Mr Davenport's evidence and the documentary evidence about the GPR/Omeo Gold Loan Agreements

266 Mr Davenport's evidence about the GPR/Omeo Gold Loan Agreements was given by reference to a spreadsheet, which had been prepared under his supervision which showed loans made from Omeo Gold to GPR. The document tendered had been updated from the earlier version included in the 4SCB by being cross referenced to the loan agreements as appeared in the 4SCB. Unfortunately, it was not cross referenced to the underlying cash call notices and bank statements which limited its utility. In addition, three further agreements to which Omeo Gold was party were produced for the first time during Mr Davenport's evidence. None had been previously discovered. This reduced the utility of the evidence.

267 The gist of Mr Davenport's evidence was that GPR had to make payments to Rimfire with respect to the amounts due under the Rimfire Agreements and, to that end, Omeo Gold borrowed money from third party lenders and did no more than pass on the charges imposed by those third party lenders on Omeo Gold to GPR.

268 One thing is clear; Omeo Gold itself did not have the funds necessary to make the payments. The statement in the Giovinazzo Parties' opening that 'Omeo Gold had provided more than $2 million pursuant to the [GPR/Omeo Gold Loan Agreements]' rather tells only half the story; all or nearly all of the money provided by Omeo Gold was provided to Omeo Gold, it seems largely by one third party, National Wealth Education Group, which Mr Davenport confirmed in his evidence-in-chief was a development company of which he was a director. There was no reference to National Wealth Education Group or its role as a lender to Omeo Gold in Mr Davenport's outline of expected evidence. The incomplete nature of the disclosures is exacerbated by the failure to provide discovery of any agreements allegedly entered into by Omeo Gold and the third parties or any other document referring to the third parties such as emails or any correspondence referring to the provision of funds, and the complete omission of any reference to any of the third parties in the Defence and Counterclaim.

269 According to Mr Davenport's evidence and as shown in the spreadsheet, this all culminates in what he describes as total joint venture core amounts borrowed by GPR from Omeo Gold to 28 April 2024 of $3,220,000 together with total interest charged of $841,920.54. According to Mr Davenport, these amounts correlate to the amounts borrowed by and interest charged by the third party lenders to Omeo Gold. Relevantly, as Mr Davenport's evidence confirmed, the 20% per annum interest has not in fact been paid by GPR to Omeo Gold, nor by Omeo Gold to the third party lenders (save possibly for $10,000 paid to the Wagner Group) but has been capitalised and added to the principal sum borrowed. Nor, has the money provided by any of the third parties actually been repaid in any real sense save possibly for $550,000 provided by the Wagner Group. Instead, the loans provided by National Wealth Education Group to Omeo Gold and then allegedly by Omeo Gold to GPR have been rolled over along with the capitalised interest into fresh loans which then incur interest at the 20% rate.

270 To describe the late production of these documents and the deficient quality of Mr Davenport's spreadsheet as unsatisfactory is a significant understatement.

271 Mr Davenport gave evidence that the third party funding commenced with a loan from the Wagner Group of $250,000 on 28 July 2022 followed by a further loan of $300,000 on 4 August 2022. Mr Davenport said that interest was charged by the Wagner Group at a rate of 20% and that the principal together with the $10,000 in interest was repaid by Omeo Gold on 30 August 2022. This evidence is consistent with the spreadsheet which describes the loan as the 'Original WFT loan - repaid after one month'.

272 The Wagner Group bank statements record debits on 28 July 2022 and 3 August 2022 which are also consistent with Rimfire's bank statements but there is no documentary evidence which shows that that the $560,000 was repaid on 30 August 2022 as that repayment is not shown in the Wagner Group bank statements.

273 During the course of Mr Davenport's evidence and in answer to a call for production by RCL, the Giovinazzo Parties produced a loan agreement which is undated between the Wagner Group as lender, Omeo Gold as borrower and National Wealth Education Group as guarantor. The loan agreement referred to a loan of $550,000 of which $250,000 had been advanced on 28 July 2022 and that $300,000 would be advanced on 4 August 2022. Omeo Gold's obligations were guaranteed by National Wealth Education Group which also proffered security over a property owned by it in Queensland. The document was tendered by the Giovinazzo Parties.

274 The 'Loan' which is defined as the advance of $550,000 was due to be repaid on the 'Repayment Date' which in turn is defined as the date on which the lender gives written notice which cannot be given until 90 days from 28 July 2022 (or 120 days from 28 July 2022 if the option at cl 4.5 is exercised),[28] whilst interest is payable in arrears pursuant to cl 3 at the rate of $10,000 for every 30 day period following 28 July 2022; with the interest required to be paid on 26 August 2022, 25 September 2022 and 25 October 2022. This document had not been discovered; it was not in 4SCB; it was not referred to in the spreadsheet nor Mr Davenport's outline of expected evidence.

275 Insofar as it relates to the first loan, the spreadsheet is cross referenced to one document only which is a loan agreement purportedly entered into between Omeo Gold as lender and GPR as borrower and dated 28 July 2022. It is executed on behalf of both parties by Mr Giovinazzo and refers to a loan of $550,000 with a settlement date of 28 July 2022 and a term of one month. This is a little curious as it implies that the $550,000 would be repaid by Omeo Gold to the Wagner Group after one month (as Mr Davenport said ultimately occurred) although the agreement between the Wagner Group and Omeo Gold contemplated a later repayment date.

276 The second loan identified in Mr Davenport's spreadsheet as 'OG Loan 1' is a loan agreement for $835,000 which was purportedly entered into between GPR as borrower and Omeo Gold as lender on 28 August 2022. The written loan agreement refers to a loan amount of $835,000, with a settlement date of 28 August 2022, with security provided by GPR in the form of a security interest over all the lender's present and after acquired property,[29] a standard interest rate of 21.55% per annum and a default rate of 24%. Mr Davenport's evidence and the spreadsheet identifies that this loan was used in part to effect the repayment of the $550,000 principal and the $10,000 interest to the Wagner Group. The part of the spreadsheet for the Original WFT loan shows that the $560,000 was repaid on 30 August 2022 in contrast to the part of the spreadsheet for the OG Loan 1 which shows the drawdowns for the $560,000 occurring on 30 August 2022 (as to $500,000) and 1 September 2022 (as to $50,000) and 16 September 2022 (as to $10,000). Two other drawdowns shown on the spreadsheet of $100,000 and $165,000 which occurred on 30 August 2022 match deposits into the Rimfire bank accounts on 30 August 2022 from National Wealth Education Group but these are the only drawdowns from this loan which can be cross referenced to the documents tendered in evidence. The cross checking is not assisted by the absence of any reference in Mr Davenport's spreadsheet to the underlying bank statements that evidence the transactions.

277 OG Loan 1 (of $835,000) is therefore said to be made up of the $560,000 repaid to the Wagner Group (which repayment on the current evidence is not verified by any reliable objective evidence) together with the $265,000 provided by National Wealth Education Group to Rimfire. Otherwise, the loan is said to have incurred interest at $15,000 per month.

278 The spreadsheet then refers to 'OG Loan 2' (of $265,000) which was purportedly entered into between Omeo Gold as borrower and National Wealth Education Group as lender on 30 September 2022 for a two month term. The spreadsheet refers to drawdowns of $70,000 on 30 September 2022 and of $100,000 and $95,000 on 6 October 2022, the first two of which are matched by deposits into the Rimfire account.

279 Next the spreadsheet refers to 'OG Loan 3' (of $134,166.67) which was purportedly entered into between GPR as borrower and Omeo Gold as lender on 28 October 2022 for a three month term. The spreadsheet refers to drawdowns of $100,000 and $34,166.67, the first of which is matched by a deposit into the Rimfire account. According to the spreadsheet, the second of the drawdowns paid down interest that had accrued on OG Loan 1 and OG Loan 2.

280 The spreadsheet then refers to OG Loan 3.1 (of $100,000) which was purportedly entered into between GPR as borrower and Omeo Gold as lender on 28 October 2022, for a three month term. The spreadsheet refers to a drawdown of $100,000 on 25 November 2022 which is matched by a deposit into the Rimfire account. The spreadsheet contains the narration 'Note that the loan agreement was signed. However, Omeo Gold enned (sic) up selling Apple iSports shares for these funds rather than borrowing. As Omeo Gold wasn't paying interest on the funds, it has' (presumably not sought to charge interest to GPR). Mr Davenport gave evidence of this sale but did not initially mention the identity of the buyer although he later said that the buyer was a company of his, Specialist Vehicle Services, who acquired the shares for $100,000. Mr Giovinazzo's evidence-in-chief did not address this and his evidence in cross-examination did not accord with it, although in re-examination he gave evidence that Apple iSports shares were sold to Mr Davenport. A drawdown of $100,000 on 25 November 2022 is matched by a deposit into the Rimfire account by Mr Davenport. OG Loan 3.1 was not discovered and was produced for the first time in the 4SCB.

281 The spreadsheet then refers to 'OG Loan 4' (of $242,805.56) which was purportedly entered into between GPR as borrower and Omeo Gold as lender on 28 November 2022 for a two month term. The spreadsheet refers to a drawdown of $21,402.78 on 28 November 2022, $200,000 on 15 December 2022 and $21,402.78 on 28 December 2022. None of these entries match deposits into the Rimfire account although curiously there is a $200,000 deposit on 15 December 2023. The two drawdowns of $21,402.78, according to the spreadsheet, paid down interest that had accrued on OG Loan 1. These drawdown amounts also purportedly paid down interest on OG Loan 2 and OG Loan 3. OG Loan 4 was not discovered and was produced for the first time in the 4SCB.

282 The spreadsheet then refers to 'OG Loan 5' (of $330,907) which was purportedly entered into between GPR as borrower and Omeo Gold on 28 January 2023. The spreadsheet refers to a first drawdown of $275,000 on 28 January 2023 which is matched by a deposit into the Rimfire account that day. The second drawdown of $25,449.54 on 28 January 2023 was, according to the spreadsheet, used to pay down interest which had accrued on OG Loan 1, OG Loan 2, OC Loan 3 and OG Loan 4. The third drawdown of $30,457.03 on 28 February 2023 was oddly used to make a repayment of $5,007.49 on OG Loan 5 itself on the same day as OG Loan 5 was entered into with the balance used to pay down interest which had accrued on OG Loan 1, OG Loan 2, OC Loan 3 and OG Loan 4. OG Loan 5 was not discovered and was produced for the first time in the 4SCB.

283 The spreadsheet records that the closing balances of OG Loan 1 to 5 were repaid by a new consolidated loan purportedly entered into between GPR as borrower and Omeo Gold as lender on 28 March 2023 for $2,083,013. The term of the loan was two months with one further drawdown of $110,000 on 30 March 2023. This last drawdown bears resemblance to the $100,000 deposit made to the Rimfire account on 30 March 2023. The consolidated loan was not discovered and was produced for the first time in the 4SCB.

284 The spreadsheet then refers to 'OG Loan 7'. The spreadsheet has the notation 'Not sure if signed' which is curious because it is cross referenced to a purported signed loan agreement between GPR as borrower and Omeo Gold as lender apparently entered into on 12 April 2023 for $75,000, for a term of two months. The spreadsheet refers to a drawdown of $75,000 on 12 April 2023 which bears resemblance to two deposits into the Rimfire account of $35,0000 and $40,000 on 12 and 14 April 2023 respectively. OG Loan 7 was not discovered and was produced for the first time in the 4SCB.

285 The spreadsheet then refers to 'OG Loan 8'. The spreadsheet has the notation 'Not sure if signed' which is again curious because it is cross referenced to a purported signed loan agreement between GPR as borrower and Omeo Gold as lender apparently entered into on 26 April 2023 for $220,000 for a term of one month. The spreadsheet refers to a drawdown of $220,000 on 26 April 2023. OG Loan 8 was not discovered and was produced for the first time in the 4SCB.

286 The spreadsheet then refers to 'OC Loan 9'. The spreadsheet has the notation 'no loan agreement' however refers to a drawdown of $55,000 on 15 May 2023. This corresponds to a $55,000 credit from Omeo Gold and then debit to Rimfire in GPR's account also on 15 May 2023.

287 The spreadsheet records that the closing balances of the consolidated loan and OG Loan 7, OG Loan 8 and OG Loan 9 were repaid by a new consolidated loan ('Consolidated loan No 2') purportedly entered into between GPR as borrower and Omeo Gold as lender on 28 May 2023 for $2,600,000, on a two month term. This document was never discovered nor included in any Court Book but was produced for the first time when Mr Davenport gave evidence. In addition to the funds borrowed purportedly being used to repay the balances of the earlier loans, the spreadsheet refers to further drawdowns of $100,000, $40,000, $10,000, $30,000, $100,000 and $20,000 on 21 June 2023, 30 June 2023, 3 July 2023, 4 July 2023, 7 July 2023 and 12 July 2023 respectively. With the exception of the second $100,000 drawdown these are matched by deposits into the Rimfire account.

288 The spreadsheet records that the closing balance of Consolidated loan No 2 was repaid by a new consolidated loan purportedly entered into between GPR as borrower and Omeo Gold as lender on 28 July 2023 for $3,000,000 ('Consolidated loan No 3') for a two month term. This document was never discovered nor included in any Court Book but was produced for the first time when Mr Davenport gave evidence.

289 The spreadsheet records that the closing balance of Consolidated loan No 3 was repaid by a new consolidated loan purportedly entered into between GPR as borrower and Omeo Gold as lender on 28 September 2023 for $3,500,000 ('Consolidated loan No 4') on a two month term. In addition to the funds borrowed purportedly being used to repay the balance of Consolidated loan No 3, the spreadsheet refers to further drawdowns of $25,000, $70,000, $50,000 and $50,000 on 5 October 2023, 27 October 2023, 24 November 2023 and 27 November 2023. The first and last drawdowns are matched by deposits into the Rimfire account which also shows a deposit of $25,000 but not $70,000 on 27 October 2023. The Consolidated loan No 4 was not discovered and was provided for the first time in the 4SCB.

290 The spreadsheet records that the closing balance of Consolidated loan No 4 was repaid by a new consolidated loan purportedly entered into between GPR as borrower and Omeo Gold as lender on 7 December 2023 for $5,500,000 ('Consolidated loan No 5') on a five month term. In addition to the funds borrowed purportedly being used to repay the balance of Consolidated loan No 4 ($3,311,843.69), the spreadsheet refers to further drawdowns of $25,000, $25,000, $25,000, $25,000, $150,000, $130,000, $118,000 and $2,000 on 18 January 2024, 19 January 2024, 22 January 2024, 22 January 2024, 29 January 2024, 19 February 2024, 19 February 2024 and 28 February 2024 respectively. The January 2024 drawdowns are matched by deposits into the Rimfire account. The Consolidated loan No 5 was not discovered and was provided for the first time in the 4SCB.

291 The Giovinazzo Parties did not discover but included in the 4SCB and tendered a purported loan agreement between National Wealth Education Group and Omeo Gold dated 28 March 2023. This agreement, which is in the same format as the agreements between GPR and Omeo Gold, bears the signature of Mr Davenport on behalf of National Wealth Education Group and Mr Giovinazzo on behalf of Omeo Gold and records that National Wealth Education Group lent Omeo Gold $1,873,013 for a term of two months at a standard interest rate of 20%. The settlement date of the loan is specified as 28 March 2023 and the due date as 28 May 2023. This document was again not discovered and was adverted to for the first time in the 4SCB. This loan agreement is not referred in Mr Davenport's spreadsheet.

292 The principal sum advanced of $1,873,013 is in the ballpark of the amounts debited to the National Wealth Education Group bank account however, the amounts debited to that bank account and paid to Rimfire commenced on 30 August 2022, some seven months prior to the written loan agreements purportedly being entered into.

293 The next category of documents are bank statements from GPR. None had been previously discovered. Of the documents referred to in the index, eight only were tendered, along with a further statement later provided. The bank statements show deposits into the account by Omeo Gold, Mr Giovinazzo and numerous debits to the account many of which appear to be personal expenses (e.g. Harvey Norman, Buckingham Hotel, Highett RSL and payment of legal fees to the solicitors for the Giovinazzo Parties, Tisher Liner FC Legal totalling approximately $194,163 and former solicitors McKean Park totalling approximately $10,032). They do not show withdrawals from the account for the purpose of making the payments to Rimfire although there are two minor payments from Rimfire into the account of $4,273.83 and $4,501.71.

294 The first bundle of documents relating to the first Rimfire account disclose the following deposits with accompanying descriptions:

Rtgs High Value Payment Ref No 0427633 Mr Richard Willia Omeo Gold

Rtgs High Value Payment Ref No 0433011 Mr Richard Willia Omeo Gold

Deposit-Osko Payment 2026798 Golden Plains Resources Pty Ltd

Deposit-Osko Payment 2650812 Golden Plains Resources Pty Ltd

Deposit-Osko Payment 2466127 Golden Plains Resources Pty Ltd Avondale earn-in

Deposit-Osko Payment 2480866 Golden Plains Resources Pty Ltd Cash call Avondale

Deposit-Osko Payment 2804614 Golden Plains Resources Pty Ltd Cash call Avondale

Deposit-Osko Payment 2262606 Golden Plains Resources Pty Ltd

Deposit-Osko Payment 2880871 Golden Plains Resources Pty Ltd 18 Feb 2024

Deposit-Osko Payment 2956006 Golden Plains Resources Pty Ltd

The deposits paid into the first Rimfire account total $1,150,000.

295 The set of bank statements relating to the second Rimfire account disclose the following deposits with accompanying descriptions:

Rtgs High Value Payment Ref No 0445027 National Wealth E Omeo Gold

Rtgs High Value Payment Ref No 0457823 Richard William D Omeo Gold

Deposit Online 2234490 Pymt Golden Pla Rim 202303 corp

Rtgs High Value Payment Ref No 0322269 Mr Richard Willia Omeo Gold

Deposit Online 2385038 Pymt Golden Pla Fpei corporate

Deposit Online 2704247 Pymt Golden Pla Fpei corporate

The deposits into the second Rimfire account total $915,000.

296 The set of bank statements relating to the third Rimfire account disclose the following deposits:

Rtgs High Value Payment Ref No 0315479 Wagner Family Tru Rimfire Finance

Rtgs High Value Payment Ref No 0445871 National Wealth E Omeo Gold

Rtgs High Value Payment Ref No 0322145 Mr Richard Willia Omeo Gold

Rtgs High Value Payment Ref No 0445800 Mr Richard Willia Omeo Gold

Deposit-Osko Payment 2252852 Golden Plains Resources Pty Ltd

Deposit-Osko Payment 2610856 Golden Plains Resources Pty Ltd

Deposit-Osko Payment 2776121 Golden Plains Resources Pty Ltd Fifield earn in

Deposit-Osko Payment 2078433 Golden Plains Resources Pty Ltd Fifield Earn in

Deposit-Osko Payment 2729714 Golden Plains Resources Pty Ltd Fifield Earn in

Deposit-Osko Payment 2759451 Golden Plains Resources Pty Ltd

Deposit-Osko Payment 2473273 Golden Plains Resources Pty Ltd Cash call Fifield

Deposit-Osko Payment 2970139 Golden Plains Resources Pty Ltd Cash call Fifield 25 Nov 23

Deposit-Osko Payment 2109846 Golden Plains Resources Pty Ltd

Deposit-Osko Payment 2261995 Golden Plains Resources Pty Ltd

Deposit-Osko Payment 2247783 Golden Plains Resources Pty Ltd

Deposit-Osko Payment 2759561 Golden Plains Resources Pty Ltd

Deposit-Osko Payment 2834805 Golden Plains Resources Pty Ltd

The deposits into the third Rimfire account total $1,150,000.

297 Combined, the deposits into the three Rimfire accounts total $3,215,000.

298 The bank statements for the Wagner Group and the National Wealth Education Group show the following relevant entries:[30]

Transfer To Rimfire pacific mining CommBank App Omeo gold

Transfer To Rimfire pacific mining CommBank App Omeo gold

299 On my calculations, the withdrawals from the Wagner Group and the National Wealth Education Group bank accounts total $1,855,270 which is just over half of the credits recorded in the three Rimfire bank accounts of $3,215,000.

300 Separately, the Giovinazzo Parties tendered documents evidencing Rimfire Avondale cash calls covering the period 30 June 2022 to 31 January 2024. The Rimfire Avondale cash call notices tendered comprised the following:

301 There are some inconsistencies between the description of the notice in the index and that apparent from an examination of the notice itself. For example, the amount of the cash call notice for 27 October 2022 is in fact $100,000 despite being described in the index as $275,000. The $275,000 is for another item headed 'Balance Outstanding after Payment', the meaning of which was not addressed but is presumably the outstanding balance of cash calls on the assumption that the $100,000 cash call payment was made.

302 One of the Rimfire cash call notices for 6 June 2023 and specified to be for Avondale is described in the 4SCB as being in the amount of $75,000. The document itself refers to an invoiced amount of $75,000 and then lists the amount outstanding as $300,000. In the index it is referred to as $75,000 which is inconsistent with the approach taken in relation to the cash call notice of 27 October 2022. In any event, the totals of these cash call notices are $1,325,000 if the cash call notice of 27 October 2022 is assumed to be $275,000 or $1,150,000 if it is assumed to be $100,000.

303 The Fifield cash call notices are described in a similar way. The Fifield cash call notices tendered comprised the following:

304 As is the case with the Avondale cash calls, there are a number of inconsistencies between the description in the 4SCB index and the documents tendered when they are examined. The Fifield cash call notices of 26 August 2022 and 28 September 2022, which the index records as cash call notice of $165,000 each, and the notice of 12 December 2022, which the index refers to as 9 December 2022 and records as a cash call notice of $200,000, are something referred to as a 'waiver payment', whilst the notice of 27 October 2022 for $100,000 which is said to be due the next day, 28 October 2022, appears to be a duplicate of the cash call notice dated 29 September 2022 save for the date, payment due date and the balancing remaining after payment.

305 In any event, if the 4SCB index descriptions are assumed to be accurate and if the various waivers and duplicates are included, the total amount of the Fifield cash call notices is $2,065,000. If they are excluded, the total reduces to $1,435,000 which, when added to the reduced amount for the Avondale cash calls, comes to $2,585,000.

The reliability and credibility of the key witnesses

306 The Giovinazzo Parties submitted that Mr Billis was an unreliable witness who had a poor recollection of the key events in the proceeding, was frequently confused as to the dates and order of events and gave frequently contradictory evidence. They submitted that the Court can place little weight on any of Mr Billis' evidence unless it is corroborated by other evidence or contemporaneous documents.

307 They also submitted in various contexts that Mr Billis was a sophisticated person and as such would have been attuned to matters such as the 'N' in the ASIC form, the change of control provisions in the Fifield Earn-In Agreement and the divestment issues that would have arisen under the Foreign Acquisitions and Takeovers Act 1975 (Cth) (the 'Foreign Acquisitions Act'). Without meaning any disrespect, Mr Billis did not present as a 'sophisticated' person at all; rather, he came across as a tough, self-made man with a keen sense of his own financial interests. He appeared to me as the type of person who would outline his broad commercial aims and instruct his advisers to bring them about entirely uninterested in the manner and detail as to how they carried out his instructions.

308 There is some validity to this criticism; Mr Billis was not a reliable historian if the reliability of his evidence is measured by reference to specific recall of the date and times at which events occurred in the period from September 2020 to about May 2022. The relevant question, however, is whether Mr Billis' inability to recall the dates, times during the day, or the precise sequence of events means that his evidence at trial should not be accepted as to the gist of the conversations which occurred between him and Mr Giovinazzo in around September 2020. This does not follow. The very clear impression I obtained from Mr Billis' evidence, which is consistent with his participation in email exchanges documented in the evidence tendered at trial, is that he was a man who delegated frequently, appeared to communicate largely by phone or by WhatsApp generally in terms which are colloquial, brief, blunt and, on not infrequent occasions, coarse. He did not pretend to be in any way across the detail of events. My impression was that Mr Billis had little familiarity with the detail of the documentary evidence and had made no real attempt to refresh his memory from the documents so as to reconstruct the timeline of events.

309 Rather, it appeared that Mr Billis answered questions instinctively based on a recollection of events untrammelled by preparation or rehearsal of his evidence.

310 In those circumstances, it is not surprising that Mr Billis' recollection of the sequence of events was imprecise. In the normal incidence of human behaviour, a person in Mr Billis' position, who communicated with Mr Giovinazzo very regularly orally and who wrote few emails except in the briefest of terms, would not recall the precise sequence of events some four years later. Mr Billis effectively conceded as such, often saying that he could not remember.

311 Mr Billis was also prepared to make some concessions which were adverse to his case. He accepted, for example, that after Ms Pendergast resigned as a director, Mr Giovinazzo told him that he would be the new director and that Mr Billis had no difficulty with this. Mr Billis maintained that his disagreement with what Mr Giovinazzo did in relation to his appointment as a director was that Mr Giovinazzo did not take steps in accordance with GPR's constitution to regularise the appointment and denied that he authorised Mr Giovinazzo to sign any document on behalf of RCL relating to Mr Giovinazzo's appointment as a director. However, even allowing for Mr Billis' somewhat nuanced objection to Mr Giovinazzo's actions, Mr Billis accepted that if a meeting of shareholders had been called validating Mr Giovinazzo's appointment, he would have voted to appoint Mr Giovinazzo as a director. This evidence assisted Mr Giovinazzo's case in relation to the matters concerning his appointment as a director and showed that Mr Billis was prepared to concede things, even if they did not assist his case. I observed Mr Billis' demeanour in the witness box closely; this reinforced my assessment that he was answering questions put to him instinctively without seeking to answer them in a way that sought to advance his case.

312 Mr Billis' account of the events which led to the issue of the shares in GPR is a very simple one and it was an account that he maintained consistently throughout the hearing.

313 I do not accept the criticism of Mr Billis' evidence concerning the interactions with Mr Christensen in the period from about March 2022 to May 2022. Mr Billis' evidence was consistently to the effect that he met with Mr Giovinazzo and Mr Christensen, that he forwarded on emails to Ms Vaughan seeking information as to the amount of the loans made, that Mr Christensen prepared an agreement whilst acting for Mr Giovinazzo, not him, and that this was unacceptable to Mr Billis which is why he did not sign it.

314 As noted above, the cross-examination of Mr Billis in relation to this topic occurred in circumstances where some of the documents that he was cross-examined upon were first provided to Mr Billis' solicitors on the Sunday before the trial commenced on the following Monday. Moreover, only some of the relevant documents were provided in the SCB. When cross-examining Mr Billis, the Giovinazzo Parties had possession of documents which passed between Mr Giovinazzo and Mr Christensen which had not been provided to RCL and, to understate things, were material to some of the matters put to Mr Billis in cross-examination and arguably contrary to some of the propositions put to Mr Billis. For example, Mr Billis was cross-examined on the basis that he and Mr Giovinazzo had jointly retained Mr Christensen, which Mr Billis denied. This was a highly contentious characterisation of events and at odds with the claim of legal professional privilege made by the Giovinazzo Parties which was then waived on a rolling basis during the course of the trial. This premise was also undermined by documents in the Giovinazzo Parties' possession which were not provided to RCL until Mr Billis' cross-examination had concluded. When the fuller documentary record was produced after Mr Billis' cross-examination had concluded, it was largely consistent with the essential gist of Mr Billis' evidence.

315 Other criticisms of Mr Billis' evidence had more force. His answers were non-responsive in a number of instances; he regularly sought to argue his case and I consider that he was mistaken about the sequence of events concerning when he became aware for the first time of the fact that the GPR shares were shown in the ASIC record as not being beneficially owned by RCL. His evidence when cross-examined to the effect that he knew this when he met with Mr Giovinazzo and Mr Christensen cannot sit with the case opened, which was to the effect that he discovered this when a company search was undertaken on 5 June 2022. I am sceptical about this account as well. I consider it more probable that he realised this in early July 2022 which prompted his decision to seek Mr Giovinazzo's removal as a director rather than his retention along with Messrs Douglas and Berzins.

316 I also accept that Mr Billis' evidence about the ABA shares transferred to RCL on 15 September 2020 was inconsistent and unintelligible, although I have concerns about Mr Giovinazzo's evidence in relation to that topic as well. Nevertheless it is tolerably clear that Mr Billis, rightly or wrongly, saw no value in the ABA shares. His inability to recall anything much about the circumstances of that transfer is consistent with it being a matter that he did not see as material because he was not interested in the ABA shares.

317 The evaluation of Mr Billis' evidence calls for a nuanced assessment. He has an obvious interest in maintaining the fairly simple case that he advances and any assessment of his overall evidence must bear this in mind. I am also well-conscious of the difficulties in properly assessing demeanour notwithstanding the qualified but positive impressions referred to above.

318 Whilst I formed a somewhat positive view of his evidence, I accept that his evidence needs to be carefully evaluated against the contemporaneous documents in light of the overall probabilities that attach to the competing series of events.

319 Ms Pendergast was a reluctant witness who was subpoenaed to give evidence on behalf of RCL. I found her evidence wholly credible and convincing. Without meaning any disrespect, Ms Pendergast presented as an unsophisticated country woman whose natural habitat was a million miles away from the corporate world and the courtroom. She was a former shop assistance at the Omeo FoodWorks and receptionist at the Omeo Medical Centre who somehow became the managing director of GPR. She was obviously unfamiliar and uncomfortable with giving evidence in Court. Although nervous, she gave evidence in a humble and dignified way. Her own words of self-description seemed entirely apt, 'I'm just a farmer ... I'm not corporate'. I accept Ms Pendergast's evidence without reservation except where it is shown to be incorrect by reliable contemporaneous documents to the contrary.

320 Mr Giovinazzo's demeanour and approach to giving evidence was almost the complete opposite of Mr Billis. Mr Giovinazzo came across as very intelligent and extremely articulate. His oral evidence-in-chief disclosed a degree of specificity in its recall which was rather uncanny. Thus, he was able to recall such matters as the particular month in 2019 when he and Ms Pendergast discussed setting up a company together (July 2019). He could recall that his discussions with Mr Billis about GPR's interest in the joint venture agreement in respect of the Fifield land occurred in March 2020 and that during the course of that discussion he told Mr Giovinazzo that he intended to finance GPR's commitments under the Rimfire Agreements by selling shares in ABA and Apple iSports and then selling down his interest in GPR. He recalled discussions with Mr Billis on 7 September 2020 and 14 September 2020 and going to Ms Pendergast's house at 1:30pm on 16 September 2020. Further, he could recall receiving a telephone call whilst filling up his car with petrol at a service station in Bairnsdale at 5:45pm on 2 July 2021.

321 However, Mr Giovinazzo's incredibly precise recollection with respect to quotidian activities pertaining to GPR and Mr Billis was in marked contrast to his lack of specificity in his recall of Mr Billis' response in relation to a number of key conversations. Thus, on Mr Giovinazzo's account of the second conversation which he had with Mr Billis on 14 September 2020 (the fact that he could recall having two conversations on that particular day is of itself suggestive of an impressive degree of recall) did not extend to any recall at all about the substance of what Mr Billis said when critical aspects of the alleged conversation took place. When Mr Giovinazzo said that the 990 shares that he would issue to RCL would only occur if the shares were held on trust for Mr Giovinazzo because there was a change of control trigger in the Fifield Earn-In Agreement and because it was Mr Giovinazzo's company, this apparently was met with silence from Mr Billis. Similarly, on Mr Giovinazzo's account, when he told Mr Billis in September or October 2021 that the Employee Stock Option Agreement was in place and Mr Giovinazzo proposed to sell some stock down to repay the loans that Mr Billis had given him, Mr Giovinazzo was unable to recall what Mr Billis said in response. The quite unnatural level of specificity in relation to some matters sits oddly with the inability to recall anything that Mr Billis might have said in relation to more critical aspects of the exchanges between the two.

322 There are various other aspects of Mr Giovinazzo's evidence that I found problematic. For example, his evidence that the decision to set up GPR was a joint decision of Ms Pendergast and Mr Giovinazzo, that the two discussed their respective titles; that Mr Pendergast asked Mr Giovinazzo why the shares being issued to RCL were not to be beneficially held by RCL; and that Mr Giovinazzo explained the reasoning to her is denied by Ms Pendergast and is completely irreconcilable with her evidence. I reject Mr Giovinazzo's evidence on those matters and regard his evidence on these topics as utterly implausible.

323 It is again difficult to understand Mr Giovinazzo's evidence that after signing the first circulating resolution appointing himself as a director on behalf of RCL he 'felt uncomfortable' and apparently raised the matter with Mr Billis who told him to sign a fresh resolution as 'Australian rep'. However, this fresh signed resolution was never lodged at ASIC, never sent to anybody at all and appeared to have been retained by Mr Giovinazzo at some unspecified place for the purposes of providing him with some form of internal comfort. Equally difficult to understand is Mr Giovinazzo's evidence that Mr Billis' alleged desire for the loans to be formalised was prompted by Mr Billis telling Mr Giovinazzo in late February or early March 2022 that the 'piggy bank' was starting to run low. This is entirely at odds with the payments of $250,000 and $300,000 that had been made by Lake Grace to GPR and Rimfire respectively on 8 February 2022, the $630,000 paid by Lake Grace to Rimfire on 7 April 2022 and the $250,000 paid by Lake Grace to GPR on 31 May 2022, all of which occurred without the loans being documented.

324 Mr Giovinazzo's evidence about the Apple iSports shares also did not withstand scrutiny. He was given numerous opportunities in cross-examination to mention the alleged sale of the Apple iSports shares to Mr Davenport's company, but only made mention of the sale in response to leading questions in re-examination. I found this evidence and the corresponding evidence from Mr Davenport unpersuasive. I also found Mr Giovinazzo's evidence about the circumstances of the creation of the Employee Share Option Agreement, and his purported informing of Mr Billis about that agreement most unconvincing.

325 I did not form a favourable impression of Mr Giovinazzo's evidence. I consider that it was a very well-rehearsed reconstruction of events informed by a post hoc analysis based on a diligent study of documentation and a keen appreciation of the evidence that would likely assist his case. I do not accept his evidence unless it is corroborated by reliable objectively contemporaneously created documents.

326 Mr Davenport was articulate but his evidence was vague in part and in some respects unconvincing. I found it surprising that having apparently given Mr Giovinazzo some advice about the merits of entering into an employee stock option agreement, Mr Davenport then left the task of documenting such agreement to Mr Giovinazzo and his mathematician friend, Mr McBrearty, and never sought or obtained a final copy of the executed document. I also found his evidence with respect to the preparation of GPR's financial statements and income tax return for the year ended 30 June 2021 troubling. The financial statements had been prepared by Davenport Taylor and were sent to Mr Giovinazzo under cover of a letter dated 31 March 2022. This was prior to the dispute coming to a head and therefore any documents produced at that time are potentially of high probative value. The covering letter from Mr Davenport requested that Mr Giovinazzo review the documents to confirm that all items are true and correct and then sign as indicated. The documents so prepared included a director's declaration in standard form where the director of the company declares that the financial statements and notes present fairly the company's financial position as at 30 June 2021 and that the information provided to Davenport Taylor for the compilation of the financial statements was complete, true and accurate. Similarly, the compilation report drafted by Davenport Taylor includes a statement to the effect that the financial statements had been prepared by Davenport Taylor on the basis of information provided by the director and that the director was solely responsible for the information contained in the financial statements, their reliability, accuracy and completeness.

327 Mr Davenport was cross-examined on the financial statements which showed GPR owing $2,214,371 to Lake Grace at 30 June 2021 and that GPR was indebted to Mr Giovinazzo and Omeo Gold as at 30 June 2021 for $138,403 and $117,200 respectively. This categorisation was inconsistent with Mr Giovinazzo's version of events. When it was put to Mr Davenport in cross-examination that this was inconsistent with Mr Giovinazzo's case to the effect that the moneys that had been paid by Lake Grace had in fact been lent by Mr Billis to Mr Giovinazzo who then lent those moneys to GPR, Mr Davenport answered by saying that he understood when preparing the financial statements that there was an overarching agreement between Mr Billis and Mr Giovinazzo to the effect that the loans were made by Mr Billis to Mr Giovinazzo and then by Mr Giovinazzo to GPR. However he did not prepare the financial statements on that basis because the statements had to match the bank statements. Mr Davenport explained that this could be corrected once the agreement between Mr Billis and Mr Giovinazzo had been properly documented.

328 This suggested either an idiosyncratic approach to the preparation of financial statements or a desire to give evidence in a way which assisted the Giovinazzo Parties' case. In any event, some of the payments to GPR for it to pay Rimfire were in fact made by RCL, not Lake Grace. Contrary to Mr Davenport's evidence that the financial statements had to be prepared by reference to the bank statements, all loans were shown as having been made by Lake Grace.

329 Mr Davenport has a strong interest in the success of the Giovinazzo Parties' case which goes well beyond a professional accountant's legitimate interest in the good fortunes of a client. In addition to being the accountant for GPR, Omeo Gold and Mr Giovinazzo, National Wealth Education Group, a company of which Mr Davenport was a director, appears to have loaned nearly $2 million to Omeo Gold. Omeo Gold has then loaned it to GPR for the purposes of meeting GPR's commitments under the Rimfire Agreements. National Wealth Education Group's ability to recover its loan is affected by the Giovinazzo Parties' success in this case. When counsel for RCL asked Mr Davenport who he was acting for in relation to the loan arrangements between Wagner Group, National Wealth Education Group, Omeo Gold and GPR, Mr Davenport said that he was acting for all of the parties. There is an obvious conflict, or at least potential conflict, between the interests of National Wealth Education Group, Omeo Gold and GPR about which Mr Davenport appeared unaware or, at the least untroubled. Nevertheless, there was no direct challenge to Mr Davenport's credit besides, in effect, highlighting the potential lack of objectivity which underlay his multifarious involvement. I do not consider it appropriate therefore to form any adverse view about Mr Davenport's credit and my assessment of the reliability of his evidence depends solely on the content of the evidence adduced in the circumstances.

Key submissions on the critical question as to the terms on which the GPR Shares are held

330 RCL submitted that Mr Giovinazzo's account was commercially implausible for at least five reasons. First, the arrangement was unsupported by the few documents which evidenced the transaction. RCL argued that it would have been easy to record that the GPR Shares held by RCL were held on trust for Mr Giovinazzo and that the moneys were loaned by Mr Billis to Mr Giovinazzo. Mr Giovinazzo's version of the alleged arrangement was inconsistent with the version of the repayment deed executed by Mr Giovinazzo but not Mr Billis on 28 June 2022 which contained no reference to the shares being held on trust, or to the loan being made by Mr Billis to Mr Giovinazzo.

331 Secondly, at the time of the alleged discussion in around September 2020, Mr Giovinazzo held five shares and Ms Pendergast held five shares in GPR. As such, Mr Giovinazzo's existing five shares could easily have been offered as security for any loan from Mr Billis to Mr Giovinazzo.

332 Thirdly, the issue of the shares to RCL and not Mr Billis is inconsistent with Mr Giovinazzo's version of the agreement which asserts that the agreement was between Mr Billis as lender and Mr Giovinazzo as borrower.

333 Fourthly, the nature of the security interest allegedly granted by Mr Giovinazzo was unclear as the event which entitled the security holder to exercise its rights and what those rights were had not been articulated. If the shares were beneficially owned by Mr Giovinazzo as the Giovinazzo Parties assert, what steps was RCL entitled to take in respect of the shares registered in its name if the moneys were not repaid by Mr Giovinazzo to Mr Billis?

334 Fifthly, the Giovinazzo Parties' version made no sense because on Mr Giovinazzo's own case, it permitted Mr Giovinazzo to issue further shares to himself which would dilute the security provided by Mr Giovinazzo for the loan. This, in fact, occurred in July 2022 when Mr Giovinazzo procured the issuance of new shares to Omeo Gold and TLH which reduced the shares registered in RCL's name from 99% to 9.9%.

335 In contrast, the Giovinazzo Parties submitted that there were six reasons why Mr Giovinazzo's evidence and account should be accepted.

336 First, Mr Giovinazzo's position was consistent with and supported by the contemporaneous ASIC record showing that the shares were held by RCL non-beneficially, and the fact that Mr Giovinazzo personally paid the issue price of the GPR Shares.

337 Secondly, it made no commercial sense for Mr Giovinazzo to give away the whole of a company (GPR) into which he had poured - and would then continue to pour - hundreds of thousands of dollars (and later millions of dollars) and his fulltime efforts for nothing.

338 Thirdly, it made no sense that Mr Giovinazzo would cause Omeo Gold to use its own assets as security for a loan between RCL as the parent company and GPR as its wholly owned subsidiary (which was the version of the arrangement asserted by Mr Billis).

339 Fourthly, the conferral of beneficial ownership of the GPR Shares in RCL's name would trigger the change of control provision in the Fifield Earn-In Agreement and provide Rimfire with a right to terminate that agreement with the effect that GPR would forfeit any right or opportunity to earn the interest under the Fifield Earn-in Agreement. In contrast, that would not be the case where the shares were held on trust for Mr Giovinazzo. The Giovinazzo Parties argued that it is implausible that two sophisticated business people in the position of Mr Billis and Mr Giovinazzo, who were on notice of the provisions of the Fifield Agreements, would put the whole of GPR's business at risk by causing a change of control to take place. Relatedly RCL's beneficial ownership of the GPR Shares would also raise issues under the Foreign Acquisitions Act because GPR would become a foreign person for the purposes of that Act and that there was every reason to consider that the acquisition of an interest in mining land in New South Wales by RCL, a Marshall Island domiciled company which is said to maintain no financial records, would not be permitted by the Treasurer. Again, this would have been well understood by reasonable business people in the position of Mr Billis and Mr Giovinazzo.

340 Fifthly, JWS's letter of 29 July 2022 and Mr Billis' witness statement filed on 30 March 2023 were consistent with the shares having been provided as security for a loan. The Giovinazzo Parties referred to JWS's letter of 29 July 2022 which explained the basis for the issue of the shares in this way:

In addition to the funds advanced (or being advanced)..., RCL could be advancing a further $4 million to the Company in circumstances where the Company had insignificant assets and no ability to provide security for repayment of the loan funds. That level of funding, which effectively amounted to full and complete funding for all of the Company's business ventures, would understandably ordinarily mandate total legal and beneficial ownership and control of the Company by the financier in the absence of other adequate security.[31]

According to the defendants, Mr Billis' witness statement characterised the share issue in the following way:

If RCL invested the money without control of and majority shares in GPR it would have no security over its investment.

...

...from my perspective, I had security in RCL holding the GPR shares if anything went wrong.

341 Sixthly, Mr Giovinazzo's position was consistent with the way that the parties then conducted GPR's business; Mr Billis took no steps to become acquainted with GPR's accounts or its accountant, Mr Davenport. If RCL was in truth GPR's parent company, as a foreign domiciled parent company there would be special requirements imposed upon GPR as to its accounts and audit processes which would need to be observed and with which a parent company would ordinarily be involved.[32]

342 Before resolving the key contested factual dispute, it is helpful to summarise briefly those matters which can be accepted as objectively established facts in the sense that they are either established by reliable documentation or are not disputed.

343 The matters identified below are devoid of the parties' respective framing of matters. Much of what the parties submit are 'objective facts and circumstances' are in fact, the parties' own characterisation of events. Thus, RCL's assertion that there are no objective facts which support Mr Giovinazzo's account ignores the ASIC search. Similarly the assertion that two sophisticated business people, such as Mr Billis and Mr Giovinazzo, would have been aware of and accept the characterisation of the change of control provision and the operation of the Foreign Acquisitions Act is not an objective fact but an assertion of a contestable proposition finding no foothold in the evidence led at trial.

344 The following facts may however be accepted as objectively established and not capable of reasonable dispute:

(a) In September 2019 and June 2020, Mr Billis arranged for $14,600 and $20,000 respectively to be lent to Mr Giovinazzo. Those loans were not repaid.

(b) Mr Giovinazzo procured and then negotiated the terms of the Rimfire Agreements with Rimfire in the early months of 2020 culminating in the entering into of those agreements in May 2020.

(c) Mr Giovinazzo procured that Omeo Gold pay $66,000 into GPR's bank account on 30 April 2020 so that GPR could pay a deposit to Rimfire of $66,000.

(d) Mr Billis procured that Lake Grace fund the subscription by GPR of $240,000 worth of fully paid ordinary shares in Rimfire thus bringing about the satisfaction of the conditions precedent under the Fifield Earn-In Agreement. GPR provided security in respect of this payment by providing Mr Billis with an off market share transfer in respect of the $75 million ordinary fully paid shares which had been acquired for the $240,000.

(e) On 5 August 2020, Mr Billis procured that Lake Grace fund the acquisition by GPR of a further 10 million shares in Rimfire at a price of 0.0005 cents per share by transferring $50,385. GPR provided security with respect to this payment in the form of an off market share transfer in respect of the 10 million shares in Rimfire acquired as a consequence.

(f) On 15 September 2020, Mr Giovinazzo paid $990 to GPR for the 'Resource Capital share payment' and emailed Mr Billis informing him that he had made payment for shares in GPR to be issued to RCL such that GPR would hold 990 shares with five shares being held by Mr Giovinazzo and five shares in Ms Pendergast's name.

(g) On 25 September 2020, Mr Giovinazzo forwarded a share transfer form to Mr Billis with respect to 7 million shares held by Omeo Gold in ABA which identified a purchase consideration of $70,000 and identified the transferee as RCL. Mr Giovinazzo emailed Mr Billis requesting that he sign the transfer form and sent it back so that it could be lodged with the ABA register of shares.

(h) On 17 September 2020, Mr Giovinazzo emailed Mr Billis enclosing a copy of an ASIC lodgement share certificate and a share application form and requested that Mr Billis complete the share application form and return it to him. The ASIC lodgement form listed RCL as a shareholder but in the relevant part of the form noted that the shares were not beneficially held.

(i) On 24 September 2020, RCL paid $580,000 direct to Rimfire. Rimfire's board and executives were aware of Mr Billis' involvement in funding GPR from at least 18 September 2020.

(j) Mr Billis was dissatisfied with the decisions made by the Rimfire board in the period between about 24 November 2020, on or about 3 February 2021 and in the period between 29 March 2021 and July 2021.

(k) Mr Billis procured that Lake Grace for the most part and, on one occasion RCL, advance further funds direct to Rimfire or alternatively to GPR forwarding on to Rimfire on 25 January 2021, 29 April 2021, 10 May 2021, 21 June 2021, 21 July 2021, 25 August 2021, 8 February 2022, 7 April 2022 and 31 May 2022.

(l) On 7 April 2021, the 10 shares formerly owned by Mr Giovinazzo and Ms Pendergast were transferred to TLH.

(m) On 17 June 2021, GPR bought a further 5 million shares in Rimfire for $40,000 (a price of 0.8 cents per share). Omeo Gold lent the $40,000 to GPR.

(n) On 30 June 2021, Ms Pendergast resigned as a director of GPR and Silver Plains Resources.

(o) The ASIC records show that from 13 July 2021 Mr Giovinazzo was appointed as a director of GPR effective 30 June 2021.

(p) In the period from 31 March 2022 to about 28 June 2022, Mr Christensen sought to document a repayment deed between, inter alia, RCL, GPR and Omeo Gold. Mr Billis attended at least one meeting with Mr Christensen during this period and arranged for his accountant to provide details of all funds provided by RCL or Lake Grace to Mr Giovinazzo or GPR during that period. Mr Giovinazzo signed a version of the repayment deed on 28 June 2022 which did not assert that the GPR Shares were held on trust but did provide for a mechanism for Mr Giovinazzo to repay the moneys advanced by RCL and Lake Grace to GPR.

(q) On 6 June 2022 and 28 June 2022, Mr Billis advised Mr Christensen that he would not sign the deed and was not happy with it.

(r) In May 2022, Mr Giovinazzo in his capacity as a director of GPR signed the financial statements for GPR for the year ending 30 June 2021 and provided the necessary directors declarations. The financial statements showed, inter alia, that Lake Grace had advanced in excess of $2 million to GPR.

(s) By letter dated 23 June 2022, RCL sought to procure the execution of a shareholders resolution to be signed by both RCL and TLH providing for the appointment of Messrs Douglas and Berzins as directors of GPR and for Mr Giovinazzo's appointment as a director to be confirmed.

(t) By a notice of meeting issued on or about 11 July 2022, RCL sought to convene a meeting of shareholders for 20 July 2022 with the proposed resolutions once again seeking to appoint Messrs Douglas and Berzins as directors but now providing for the removal of Mr Giovinazzo as a director. The shareholders subsequently executed that resolution prior to the meeting being convened.

(u) On 16 July 2022, Mr Giovinazzo purported to exercise options said to have been conferred upon him pursuant to the Employee Stock Option Agreement supposedly entered into on 3 August 2021, the effect of which was to result in the issue of 8,910 GPR's shares to him and 90 to TLH.

(v) On 19 July 2022, the ASIC records of GPR were updated to provide for the further issue of shares to Mr Giovinazzo and TLH consequent upon Mr Giovinazzo's purported exercise of his rights under the Employee Stock Option Agreement.

(w) By letter dated 20 July 2022, JWS wrote to Davenport Taylor, inter alia, observing that Mr Giovinazzo had been removed as a director by reason of the passage of a shareholders resolution with effect from 19 July 2022.

(x) From 28 July 2022, Mr Giovinazzo, Mr Davenport, National Wealth Education Group and the Wagner Group provided in excess of $1.85 million to Rimfire which has enabled GPR to continue to meet its obligations under the Rimfire Agreements.

(y) By letter dated 29 July 2022, JWS wrote to Mr Giovinazzo's then solicitors, inter alia, asserting that in or around July or early August 2020 Mr Giovinazzo had asked Mr Billis to provide funds in order for GPR to acquire additional shares in Rimfire. The letter also asserted Mr Giovinazzo asked Mr Billis around the same time to fund earn-in requirements under the Rimfire Agreements in respect of which Mr Billis, inter alia, said that he would only agree to advance the funds if RCL owned and had control of GPR. Mr Giovinazzo procured the issuance of 990 shares to RCL which were held by it legally and beneficially.

(z) By letter dated 15 August 2022, Mr Giovinazzo's solicitors, Tisher Liner FC Law, wrote to JWS, inter alia, asserting that the GPR Shares were issued to RCL as security for advances made by Mr Billis through his related entity to Mr Giovinazzo on and from 24 September 2020.

345 RCL is the registered holder of the shares. The Giovinazzo Parties' defence to the oppression claim and the successful prosecution of the counterclaim largely rests on establishing that the shares registered in RCL's name are held on trust by RCL for Mr Giovinazzo. The version of the arrangement asserted by RCL and supported by Mr Billis' evidence is to be preferred.

346 First, the Giovinazzo Parties' case requires acceptance of Mr Giovinazzo's evidence in respect of the conversation between Mr Billis and Mr Giovinazzo on or around 15 September 2020 and between Mr Giovinazzo and Ms Pendergast on or around 15 and 16 September 2020. Ms Pendergast did not support Mr Giovinazzo's evidence of the conversations to which she was allegedly party. Her denial of any discussion of the trust arrangement was unequivocal and I have no hesitation in accepting it.

347 Secondly, in the period prior to September 2020, GPR had effectively two assets; its 85 million shares in Rimfire and its interest in the Fifield Agreements. Entities controlled by Mr Billis had funded the acquisition of the 85 million shares. The $290,385 paid so as to facilitate the share acquisition was secured by the asset acquired by GPR with those funds, namely GPR's holding of the Rimfire shares. The second asset, the interest in the Fifield Agreements, only had value if GPR was able to meet its obligations under the Fifield Agreements which required the payment of around $4.5 million over three years. It is common ground that the source of the funding necessary to meet those obligations was to be provided by entities associated with Mr Billis. If entities controlled by Mr Billis were to pay for the entirety of GPR's assets then it makes sense for Mr Billis to have asked for and obtained control of GPR. In the case of Mr Billis' funding of the acquisition of the 85 million shares, he had shown that his generosity only went so far; whilst he was willing to fund GPR's acquisition of the Rimfire shares on an interest free basis, he required security over the asset acquired with the funds lent by him. This was provided in the form of a signed transfer for the shares acquired in GPR's name in Rimfire which was to be held in escrow. The suggestion that he would fund a far more generous requirement of around $4.5 million over three years, on the basis of an interest free loan on a less generous basis, is most unlikely and strains credulity.

348 Acceptance of Mr Giovinazzo's evidence means that Mr Billis required valuable security, in the form of a signed transfer over ASX listed shares which were in effect paid for by Mr Billis, in relation to funding of around $300,000 yet was content to accept highly irregular and illiquid security, which was not documented in any way, over the ABA shares, Apple iSports shares (about which Mr Billis had shown little interest and much scepticism) and Mr Giovinazzo's shares in the proprietary limited GPR. Mr Giovinazzo's shares in GPR were of limited value as a security given GPR's private status and the consequential effect on marketability as GPR's assets were limited to the shares owned in Rimfire (which Mr Billis had funded and over which he already held security) and its interest in the Fifield Agreements, the value of which was entirely dependent on Mr Billis' promise of funding. Importantly if the GPR Shares were beneficially owned by Mr Giovinazzo, but Mr Giovinazzo would remain in effective control of the GPR as its director, he could render the security valueless or greatly impaired by any further issue of shares in GPR.

349 Relatedly, I do not do not accept that the provision of the share transfer form for the ABA shares by Mr Giovinazzo to Mr Billis constituted the provision of security for the alleged loan by Mr Billis to Mr Giovinazzo. Although the date of 15 September 2020 coincides with Mr Giovinazzo's version of events, Mr Giovinazzo's accompanying email makes no reference to the alleged security arrangement. On two earlier occasions, Mr Giovinazzo provided Mr Billis with transfers over the Rimfire shares as security for loans. However, in both those cases, the transferee's name was left blank, which is entirely consistent with the provision of security in the form of a transfer signed by the transferor, but not the transferee, with the transfer form being held in escrow as security entitling the holder of the transfer on default to insert its name or that of a third party and procuring registration of the shares. In the case of the ABA shares, however, the transferee's name had been completed as had the purchase consideration, which is consistent with an outright transfer, not the provision of security. In addition, the transferor's name was Omeo Gold, which is inconsistent with Mr Giovinazzo's version, which is that he, not Omeo Gold, was the borrower.

350 Thirdly, the provision of the interest free loan by RCL to GPR and RCL's apparent disinterest in seeking to recover the funds advanced is far more explicable if the loan was made as Mr Billis contends to a near wholly owned subsidiary than it is if the loan was made to an entity controlled and effectively owned by Mr Giovinazzo.

351 Fourthly, the issue of the 990 shares to RCL, the content of Mr Giovinazzo's email to Mr Billis of 15 September 2020, Mr Giovinazzo's email to Ms Pendergast of 16 September 2020 and the absence of any reference to a trust arrangement in either of those two emails is entirely consistent with the arrangement asserted by Mr Billis. So too is the description of the $990 paid for the shares by Omeo Gold 'RCL Shares' which was written by or at Mr Giovinazzo's direction. The description 'RCL Shares' is significant because on Mr Giovinazzo's case the shares were beneficially his. What is not significant is that Omeo Gold paid the $990. Given that entities controlled by Mr Billis had paid personal loans to Mr Giovinazzo which had not been repaid and were providing the lion's share of the funding for GPR, requiring Mr Billis to fund the $990 so that he could obtain control of GPR so that GPR could perform its obligations under the Fifield Agreements would have been churlish. Mr Billis' explanation that Mr Giovinazzo said that he would pay the $990 because he already owed Mr Billis a large amount of money struck me as inherently likely and I accept it.

352 Fifthly, an arrangement of the kind postulated by Mr Giovinazzo would have been easy to document and implement. Mr Giovinazzo could have provided Mr Billis with an off market share transfer form to be held in escrow with respect to Mr Giovinazzo's existing five shares in GPR, much in the same way as he had with respect to GPR's 85 million shares in Rimfire. To the extent it was necessary for the security to take the form of a controlling interest in GPR, then this too could have been easily achieved by the issuance of a further five shares to Mr Giovinazzo, such that the resultant 10 shares held by Mr Giovinazzo could have been provided as security.

353 Sixthly, I do not accept Mr Giovinazzo's evidence that part of the motivation for the beneficial ownership of the shares remaining with Mr Giovinazzo was to address a perceived concern as to a breach of the change of control provision in the Fifield Earn-In Agreement and that this was discussed with and agreed to by Mr Billis. The change of control provision in the Fifield Earn-In Agreement did not, as sometimes is the case, specify that a change of control occurs only in the event of a change in the beneficial ownership. Acceptance of Mr Giovinazzo's version of events in respect of this issue requires acceptance of the proposition that Mr Billis and Mr Giovinazzo nevertheless apprehended (without seeking any advice from a solicitor such as Mr Christensen) that only a change in beneficial ownership would bring about a change of control and determined to act accordingly. Further, there is no reason to consider that Rimfire would have been in any way concerned about such a change of control. Rimfire needed GPR's money so as to facilitate the exploration activities which were the subject of the Fifield Earn-In Agreement. Rimfire well knew that Mr Billis was the source of the funding necessary to enable the exploration activities to proceed. It would have been readily apparent to Rimfire upon the carrying out of a simple company search that 990 new shares had been issued to RCL. Assuming that Rimfire was attuned to the box in the form which said those shares were not beneficially held, there is nothing on the ASIC form or anything else to suggest that RCL held those shares on behalf of Mr Giovinazzo or that Mr Giovinazzo sought to alleviate any potential concern with respect to the change of control by raising the matter with Rimfire.

354 In addition to Mr Billis' denial, and the complete absence of a single documentary pointer to the change of control matter being the subject of discussion (both at the time of the alleged discussion and afterwards), only the briefest analysis is required to expose the specious nature of the argument. A change of control occurred in any event even on Mr Giovinazzo's version of events; the beneficial ownership of shares in GPR changed from 50% held by Mr Giovinazzo and 50% held by Ms Pendergast to 995 shares being held by Mr Giovinazzo and five shares held by Ms Pendergast. Further, in the event that the alleged security holder, RCL, sought to exercise its rights over the security (on this argument, Mr Giovinazzo's beneficial interest in the GPR Shares) and assuming in favour of the Giovinazzo Parties that the remedy in such an event was that RCL could sell both the legal and beneficial interest in the shares, a change of control would occur when the sale occurred, giving rise to the very same problem said to have been avoided by the shares being issued in RCL's name but held on trust for Mr Giovinazzo.

355 Seventhly, although some caution is required in relation to the appropriate inferences which can be drawn from the repayment deed as it postdates the alleged agreement, none of the deeds prepared by Mr Christensen, which were totally or at least in substantial part prepared on Mr Giovinazzo's instructions, including the version of the deed signed by Mr Giovinazzo on 28 June 2022, assert that RCL's GPR shares were held on trust for Mr Giovinazzo. In contrast, the recitals to the repayment deed record that the shares held by RCL in Apple iSports were held on trust but record that RCL is the owner of the GPR Shares. There is certainly no evidence of any instruction being provided by Mr Giovinazzo to Mr Christensen to that effect. Nor was there any assertion in the letter from Tisher Liner FC Law to JWS sent 15 August 2022 on Mr Giovinazzo's behalf, that the 990 shares were held on trust by RCL for Mr Giovinazzo. Whilst the letter from Tisher Liner FC Law asserts that the shares had been provided by way of security and that it was open to Mr Giovinazzo to repay the loans advanced and thus redeem the GPR Shares, there is no mention at all that the GPR Shares are held on trust for Mr Giovinazzo.

356 Eighthly, Mr Giovinazzo's purported exercise of the Employee Share Option Agreement and the resultant issuance of 8,910 shares to him in July 2022 is at odds with the shares owned by RCL being held on trust for Mr Giovinazzo. If Mr Giovinazzo was the beneficial owner of the GPR shares as he now asserts, there was no need for him to procure the issuance of further shares to himself so as to obtain control of GPR. He could simply have terminated the trust and insofar as his termination of the trust arrangement required repayment of the advances, sought to effect repayment as his solicitors foreshadowed in the letter of 15 August 2022.

357 Of the six reasons advanced by the Giovinazzo Parties as to why Mr Giovinazzo's account was more probable, only the first matter raised gives rise to any significant pause for thought.

358 The form lodged at ASIC on 16 September 2020 which has an 'N' entered in the box 'beneficially held' provides support for Mr Giovinazzo's account at least insofar as it suggests that RCL held the shares on trust for another person or party. It requires me to accept Mr Billis' evidence that he simply did not pick it up when the documents were sent to him on 17 September 2020. I accept Mr Billis' evidence that he did not pick up the fact that the 'N' appeared in the box 'beneficially held'; as noted earlier there was no mention of any trust arrangement in the email sent 15 September 2020. Further, there was no mention of any trust arrangement in the email sent on 17 September 2020 which expressly directed Mr Billis' attention to the share application form and required Mr Billis to complete that form. As the chain of emails that passed between various Mr Billis' associated email addresses on that day suggests, the documents sent by Mr Giovinazzo were scanned and sent to Mr Billis at the email address tribunescanner@gmail.com within 16 minutes of receipt before being onforwarded by Mr Billis'gmail.com address to another email address, rangoldltd@yahoo.com before being signed by Mr Billis and likely sent back to Mr Giovinazzo seven minutes later. Although the content of the scanned document is not entirely clear, the most likely inference is that the document that was sent back on Mr Billis' behalf from the email address rangoldltd@yahoo.com to Mr Giovinazzo was the signed application form. The available inference, and one which I draw, is that Mr Billis' attention was focused on the need to complete the application form which made no mention of the trust arrangement and that Mr Billis attended to this with despatch.

359 I accept that Mr Billis' accountant also undertook company searches on Mr Billis' instruction both prior to Mr Billis procuring that Lake Grace advance the moneys to GPR, and on 5 June 2022. If I accept Mr Billis' evidence, as I do, it must also follow that the 'N' in that section of the company search was also not noticed by the accountant or in any case did not prompt the accountant to raise the matter with Mr Billis when the initial search was undertaken and that the 5 June 2022 search did not prompt much by way of response at least until 11 July 2022 when JWS sought Mr Giovinazzo's removal as a director. I have no difficulty in accepting Mr Billis' evidence that he did not notice the 'N'; he was clearly not a person of detail. The fact that the accountant did not notice is not as easily explained, but the significance of the 'N' and the failure to raise the matter with Mr Billis' depends on, among other things, who actually conducted the search, the extent of Ms Vaughan's review of the search and the instructions provided by Mr Billis as to the purpose of the search, which on Mr Billis' evidence would not have alerted whoever viewed the search to any possible issue. The fact that Ms Vaughan wrote a letter on 23 June 2022 describing RCL as the majority shareholder and seeking to appoint two new directors at least on one view suggests that the significance of the non-beneficial status of RCL's shareholding had not been noticed. Whilst, I accept that the accountant's searches is one matter which points in favour of the submissions of the Giovinazzo Parties, it is not sufficiently probative as to outweigh the various other matters which point strongly in favour of Mr Billis' account.

360 It is also necessary to address the Giovinazzo Parties' submission that it made 'no commercial sense at all that Mr Giovinazzo would agree to give away practically the whole of a company into which he had poured - and would then continue to pour - hundreds of thousands of dollars (and later, millions of dollars) and his fulltime efforts for nothing'.

361 Evaluation of this submission requires consideration of the extent of Mr Giovinazzo's contributions such as they were as at September 2020. At that time, the extent of Mr Giovinazzo's contributions to GPR appear to be limited to his participation in meetings with Rimfire from late 2019 to early May 2020 negotiating and entering into the Fifield Agreements and his funding via Omeo Gold of GPR's payment of the $66,000 deposit under the Fifield Earn-In Agreement between 30 April 2020 and 4 May 2020. That aside, GPR had no assets at all; GPR's ability to exploit the interests conferred upon it by the Fifield Agreements was solely dependent upon funding being provided for the performance of its obligations under these agreements, which relevantly included subscribing for shares in Rimfire, the relevant source for which was Mr Billis. As at September 2020, GPR was essentially a shell without Mr Billis. Mr Giovinazzo was not giving away anything; the only promise of riches for GPR and derivatively for Mr Giovinazzo depended upon funding being provided by Mr Billis. At that time, Mr Giovinazzo's financial circumstances appeared so humble that he had been compelled to borrow relatively small amounts from the Mr Billis such as $14,600 in September 2019 and the $20,000 in June 2020.

362 Nor is there much in the submission that it is probative of Mr Giovinazzo's version of events of the September 2020 conversation that Mr Giovinazzo was able to procure via Mr Davenport that Mr Davenport's clients and/or company would contribute around $2 million so as to in effect ensure the viability of GPR's interest in the Rimfire Agreements. The assertion that Mr Giovinazzo poured in 'millions of dollars' is a distortion of the true position which was that those moneys were largely provided by National Wealth Education Group with Omeo Gold as some form of intermediary.

363 Further, although GPR has not produced financial statements since 30 June 2021, the bank statements of GPR which are in evidence, record substantial payments from its bank account for Mr Giovinazzo's benefit such as legal fees paid to Tisher Liner FC Law and various other payments which appear to be of a personal nature. It is therefore something of an overstatement to say that Mr Giovinazzo 'received nothing'.

364 Whilst I accept that Mr Giovinazzo was significantly involved in Rimfire's activities as the active participant of GPR, and was clearly far more involved than anyone else, I consider his evidence and the submission that he worked 6 to 7 days a week, 16 hours a day has the hallmark of exaggeration. His evidence was general, lacked specificity and was not supported by much in the way of documentary evidence. Rimfire and its employees, not GPR, was responsible for the exploration activities.

365 Mr Billis said that he would have looked after Mr Giovinazzo if RCL's interest in GPR (essentially in Rimfire) paid off, as 'we look after our people' or words to that effect. This was scoffed at by the Giovinazzo Parties but I would be surprised if the contrary was the case. On any view of things, Mr Giovinazzo had provided his then friend Mr Billis with the opportunity of taking a stake in Rimfire. I see nothing surprising about there being a mutual expectation of benefit if the opportunity proved fruitful. Mr Billis had been shown to be generous towards Mr Giovinazzo, with small loans and the gift of the Nissan Patrol. It is also notable that other friends of Mr Giovinazzo have significant interests in Rimfire; his friend Mr Brooker, who Mr Giovinazzo said had lent Mr Giovinazzo money, is the largest shareholder in Rimfire; another friend Mr Nairn also has significant interests. Both also had interests in Apple iSports. A profitable investment by these friends as well might also have given rise to benefit to Mr Giovinazzo.

366 Mr Giovinazzo appears to have conducted aspects of his affairs in an unorthodox manner. Ms Pendergast described the transfer of the shares held by herself and Mr Giovinazzo to TLH as 'weird'. Weird is an apt description for a number of aspects of Mr Giovinazzo's dealings. It is 'weird' that Mr Giovinazzo recruited Ms Pendergast from various administrative roles to become the face of GPR, sending communications on its behalf purportedly but certainly not written by her. The setting up of TLH is also strange; so too is the unexplained initial reluctance of Mr Giovinazzo to accept Ms Pendergast's resignation as a director of GPR until the 'will ramifications' were addressed. Mr Giovinazzo also apparently held assets in unusual ways; his or Omeo Gold's interest in Apple iSports and now Apple iSports Group Inc are held by Cres. He now appears to have access to funds that would enable him to repay the funds advanced by Mr Billis and he has been able in some way to persuade his accountant to broker large advances to Omeo Gold. I am not entirely sure that the full picture of Mr Giovinazzo's interests have emerged.

367 I also place no weight at all in the assertion that Mr Billis and Mr Giovinazzo would have been aware of the consequences under the Foreign Acquisitions Act of RCL being the beneficial owner of the 990 shares in GPR. Mr Giovinazzo gave no evidence about this topic and it was addressed only briefly in cross-examination of Mr Billis, who dismissed it peremptorily. The submission has the hallmark of speculation on the part of those now acting for the Giovinazzo Parties and the attribution of their opinion to something held contemporaneously by Mr Billis and Mr Giovinazzo and informing their actions accordingly.

368 The submission that beneficial ownership of shares in GPR held by RCL, a company incorporated in the Marshall Islands, the sole director of which is nevertheless Mr Billis, the chairman of two ASX listed mining companies, would excite the interest of the Treasurer in such a way as to attract the Treasurer's intervention in the affairs of GPR, and its capacity to perform obligations and maintain its interest in the Rimfire Agreements obtains no footing in the evidence. In written closing submissions, the Giovinazzo Parties directed attention to various provisions in the Foreign Acquisitions Act which require a party to obtain the Treasurer's consent before acquiring certain interests.[33] The submission did not refer to the part of the Act which deals with the position where the acquisition has taken place without the required notifications, which is the position here. Section 69 of the Foreign Acquisitions Act, which deals with disposal orders gives, the Treasurer the power to make orders for the disposal of interests obtained contrary to the Foreign Acquisitions Act provided that the result of the action is contrary to national security. In those events, the Treasurer may require the disposal of an interest. There was no evidence led which suggests that this transaction would excite the concern of the Treasurer, much less than that the action would be contrary to national security such as to result in the Treasurer making a disposal order. On the evidence before me any such apprehension is fanciful.

369 Reliance on the Foreign Acquisitions Act, along with the apprehended concern with respect to change of control, have the strong appearance of an ex post facto rationalisation designed to support Mr Giovinazzo's version of events. Although the trust argument finds some support from the ASIC form, it too has some of the hallmarks of the same retrospective recharacterisation as the change of control and foreign acquisition arguments. The absence of any reference to the trust arrangement in the drafts of the repayment deed prepared by Mr Christensen and in Tisher Liner FC Law's early letters provides support for this inference.

370 In fact, the transaction was a simple one; Mr Billis through his corporate entities funded the performance of GPR's obligations under the Rimfire Agreements and the acquisition of GPR's shares in Rimfire. As a consequence, Mr Billis sought and obtained control of GPR via the issue of the GPR shares. Mr Billis' entities lent the money interest free from October 2020 to May 2022 to fund GPR's obligations to Rimfire as the GPR financial statements show. Mr Billis was disinterested in recovering the money advanced from GPR because RCL was its controlling shareholder.

371 The obvious likelihood is that by early 2022, Rimfire's value had increased significantly from 2020 when its shares could be acquired for as low as 0.32 cents. The consequential effect of that is that the value of GPR's interests in Rimfire comprising its shareholding in Rimfire and its interests in the Rimfire Agreements (which had been essentially funded in full by Mr Billis' entities) and hence the value of GPR, substantially exceeded the balance of the debt owed by GPR to those entities. This gave rise to a powerful incentive for Mr Giovinazzo to seek to effect repayment of the debt probably with the aid of a financial backer and obtain full control of GPR. As a result I consider that Mr Giovinazzo has sought to characterise events in a quite different way to that which actually occurred so as to confer benefit on Mr Giovinazzo.

372 I reject Mr Giovinazzo's attempt to do so; I accept Mr Billis' account. RCL advanced the money to GPR on the basis that it acquired control of GPR which it did when it was issued with 990 shares in GPR. RCL does not hold those shares on trust for Mr Giovinazzo.

373 RCL's oppression and related claim therefore needs to be assessed on that footing.

374 As noted above, RCL's claim focusses on Mr Giovinazzo's conduct in respect of the following:

(a) his purported appointment as a director with effect from 30 June 2021;

(b) his purported entry into the Employee Share Option Agreement and the subsequent issue by GPR of shares to him and TLH on 19 July 2022;

(c) his conduct in purporting to procure GPR's entry into the GPR/Omeo Gold Loan Agreements.

375 It is necessary to give separate consideration to each but before doing so it is convenient to set out some relevant and essentially undisputed principles in respect of oppression claims and associated relief.

376 Section 232 of the Act provides that the Court may make an order under s 233 of the Act if:

(a) the conduct of a company's affairs; or

(b) an actual or proposed act or omission by or on behalf of a company; or

(c) a resolution, or a proposed resolution, of members or a class of members of a company;

(d) contrary to the interests of the members as a whole; or

(e) oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity.

377 The 'affairs' of a body corporate are described broadly in s 53 of the Act, including for the purposes of s 232 and s 233 of the Act.

378 The phrase in s 232(e) - 'oppressive to, unfairly prejudicial to, or unfairly discriminatory against' - is a compound expression[34] and is concerned with 'commercial unfairness'. In Wayde v New South Wales Rugby League Ltd[35] Brennan J stated that the relevant test as to unfairness in the context of oppression is 'whether reasonable directors, possessing any special skill, knowledge or acumen possessed by the directors and having in mind the importance of furthering the corporate object on the one hand and the disadvantage, disability or burden which their decision will impose on a member on the other, would have decided that it was unfair to make that decision'.[36] Whether there has been unfairness in the requisite sense is to be judged objectively.[37] Findings as to oppressive conduct may be founded on a whole course of conduct and it has been accepted that an accumulation of conduct, even where none of the separate matters of conduct is found to be oppressive, may constitute oppressive conduct for the purpose of s 232 of the Act.[38]

379 Determining whether conduct is 'oppressive' involves 'the making of a judgment by reference to an evaluative standard'.[39] Whether the conduct is relevantly unfair has been described as a 'question of fact and degree, and is to be judged objectively'.[40]

380 A director who conducts a company's affairs in a way to advance their own interests or the interests of others of their choice to the detriment of the company or of the other shareholders, may engage in conduct that is commercially unfair and oppressive for the purposes of s 232(e) of the Act.[41]

381 In Re Dawning Investments Pty Ltd and Dawning Developments Pty Ltd,[42] it was observed that:

Unfairness may be inferred where, in the absence of proper explanation, a transaction does not provide sufficient commercial value to a company to outweigh any possible conflict of interest on the part of a director. Accordingly, where there has been a misappropriation of company funds or dubious payments to directors, the oppression provision may be engaged.[43]

382 Relevantly, insofar as the Purported 19 July Share Issue is concerned, the issuing of shares has, in certain circumstances, been held to be oppressive, particularly where the consequence is (as in the present case) the dilution of a shareholder's proportionate shareholding in the company. In Strategic Management Australia AFL Pty Ltd v Precision Sports & Entertainment Group Pty Ltd,[44] Sifris J (as his Honour then was) stated as follows:

In most of the relevant reported cases, the court found that the main purpose of the issue of shares was to dilute the interests of another shareholder with the obvious commensurate gain to the other shareholder(s). Usually the share issue and its improper purpose is transparent and obvious. However, sometimes it is contrived and not as obvious. This is always a question of fact derived from the evidence and the drawing of necessary inferences.

In the recent case of Corbett v Corbett Court Pty Ltd (ACN 062 978 545), the issue of shares in a family company to one sibling that had the effect of diluting the interests of the other six siblings was held to be oppressive in circumstances where there was no need to raise any further equity and the moving course was to resolve an impasse with his siblings.[45]

383 In Slea Pty Ltd v Connective Services Pty Ltd (No 9),[46] Robson J held that it was trite law that the following were improper purposes for the issuing of share capital:

(a) to benefit some shareholders or their allies at the expense of other shareholders;

(b) to create, maintain, manipulate or alter voting power, including by destroying an existing majority or creating a new majority which did not previously exist;

(c) to entrench control, regardless of the reason for that desire;

(d) to reduce the value of a shareholder's interest in the company; and

(e) to influence the outcome of a general meeting.[47]

384 Based upon a review of the authorities, Robson J concluded:

It is well accepted that where directors issue additional shares for the purpose of diluting a shareholder's shareholding, this will be an improper purpose and may also be oppressive conduct.[48]

385 That accords with the observation in Kingemel Pty Ltd v Rosa Processing Pty Ltd[49] ('Kingemel') that:

There is a long line of case authority concerning corporations and firmly establishing that it is beyond a company director's fiduciary powers to act to issue shares in their corporation for a purpose of creating or maintaining a position of voting control.[50]

386 It is likely that conduct by directors and officers in breach of their duties under ss 181-183 of the Act would be contrary to the interests of the members as a whole.[51]

387 A refusal to provide appropriate access to a company's books and records may amount to oppression.[52]

388 Oppression may arise as a result of the exclusion or removal of a person from the management of a company where the person has a legitimate expectation of being involved in making decisions as to the company's direction.[53]

389 The scope of the Court's jurisdiction to grant relief under s 233 of the Act for oppressive conduct is 'particularly broad and versatile'.[54]

390 Section 233(1) of the Act provides that the Court may make any order under s 233:

...that it considers appropriate in relation to the company, including an order:

(c) regulating the conduct of the company's affairs in the future.

391 Where oppression is found, the remedy must relate to eliminating the oppression and compensating the person oppressed for its effects, whilst having regard to the principle of proportionality.[55]

392 The relief sought by RCL is designed to unwind the effects of Mr Giovinazzo's oppressive conduct by providing that the affairs of GPR are to be conducted on the basis that:

(a) Mr Giovinazzo is not an officer of GPR but, rather, that the directors of GPR are the persons that the members of GPR (RCL and TLH) resolved in July 2022 to appoint by way of replacing Mr Giovinazzo (Messrs Douglas and Berzins). In Beaumont v Peel[56] Black J stated, in respect of orders providing for the reconstitution of company boards by the replacement of directors with other directors, that he was 'comfortably satisfied that the Court had jurisdiction to make such an order under s 233(1)(c) of the [Act]' observing that such an order was made in Re Spargos Mining NL.[57]

(b) GPR is not bound by the Employee Stock Option Agreement.

(c) The issuing of shares via the Purported July 19 Share Issue is set aside, with rectification of GPR's share register (if required).[58] Relief to that effect was granted in Kingemel.[59]

393 As noted above, following Ms Pendergast's resignation as a director of GPR on 30 June 2021, Ms Pendergast, signed a circulating resolution appointing Mr Giovinazzo as a director of GPR. The resolution was subsequently signed by Mr Giovinazzo purportedly as a director of RCL on 5 or 8 July 2021 and a copy of this resolution was filed at ASIC on 13 July 2021. Whilst I accept that Mr Billis was informed at some point by Mr Giovinazzo of Ms Pendergast's resignation as a director and secretary of GPR, I do not accept that he authorised Mr Giovinazzo to sign the circulating resolution on 5 or 8 July 2021 as a director of RCL.

394 Aside from Mr Giovinazzo's oral evidence to that effect, there is no corroboration of the alleged authorisation; it would have been a very simple matter for Mr Giovinazzo to have sent the circulating resolution of members to Mr Billis for execution by him and return. There is also no other corroborative evidence that would support Mr Giovinazzo's account. As noted above, I would not accept Mr Giovinazzo's evidence unless it is corroborated by any other form of objective and reliable contemporaneous material. As there is none, I do not accept his evidence as to him being authorised by Mr Billis to sign the circulating resolution as a direction of RCL.

395 Mr Giovinazzo received Ms Pendergast's resignation at 6:15pm on 30 June 2021. He responded within about five minutes saying that he would not accept the resignation until matters had been discussed between them. She then responded 12 or so minutes later saying that her registration was non-negotiable which was met by Mr Giovinazzo's response to the effect that he had already taken 'the company files so [he] could do the year end'. The very next morning at 9:47am, Mr Giovinazzo emailed the broker, Mr Connelly, advising Mr Connelly that he was 'the new director as of today' which would be lodged by Tuesday with ASIC. The basis upon which Mr Giovinazzo made that assertion is not set out in his email to Mr Connelly, but insofar as the source of his authority to make that statement derived from any authorisation provided by Mr Billis, the authorisation must have been provided in short order. In fact, the most likely inference is that Mr Giovinazzo essentially appointed himself without reference to Ms Pendergast or Mr Billis.

396 Had Mr Billis so authorised Mr Giovinazzo to sign as a director of RCL, in the period after Ms Pendergast's resignation on 30 June 2021 and before Mr Giovinazzo's email to Mr Connelly on 1 July 2021, Mr Giovinazzo would surely have informed Mr Flynn (of White Cleland) of such conferral of authority when Mr Flynn prepared the circulating resolution for signing by RCL by its director Michael James Giovinazzo and that in those circumstances, the resolution would have been prepared in a different format. The fact that none of this occurred, coupled with Mr Billis' denial and Mr Giovinazzo's most unconvincing explanation surrounding the preparation of the second circulating resolution signed by him on 29 July 2021, means that I am not satisfied that Mr Billis so authorised Mr Giovinazzo. As an aside, although the covering email refers to a circulating resolution of the members of GPR, the attached resolution is wrong in two respects; it notes Mr Giovinazzo as a director of RCL when he was not and it seems to be prepared on the basis that Ms Pendergast is a shareholder when she was not.

397 It follows that Mr Giovinazzo was not validly appointed as a director of GPR.

398 To the extent to which reliance is placed upon Ms Pendergast's signature on the circulating resolution as an act of appointment by her in her capacity as a director of GPR pursuant to clause 1.6 of GPR's constitution, this too is rejected. Clause 1.6 of the constitution is headed 'Directors may appoint other directors' and the relevant clause reads as follows:

Subject to the majority of the directors' approval, the directors of a company may appoint a person as a director. A person can be appointed as a director in order to make up a quorum for a directors' meeting even if the total number of directors of the company is not enough to make up that quorum.

If a person is appointed under this section as a director of a proprietary company, the company must confirm the appointment by resolution within 2 months after the appointment is made. If the appointment is not confirmed, the person ceases to be a director of the company at the end of those 2 months.

399 Reliance on this resolution does not assist Mr Giovinazzo; first, the relevant resolution was signed by Ms Pendergast as a member of GPR, not as a director; secondly, she had already resigned as a director with effect from 30 June 2021; thirdly and in any event, the appointment of Mr Giovinazzo was not confirmed and as such, Mr Giovinazzo ceased to be a director of the company 30 days after Ms Pendergast had signed the resolution which was on or about 2 July 2021.

400 Mr Giovinazzo sought to rely upon the 'Duomatic principle' so as to excuse any non-compliance with the formalities attending to his appointment as a director. The 'Duomatic principle' is the principle enunciated by Buckley J in Re Duomatic Ltd.[60] It applies where it can be shown that all shareholders having a right to attend and vote at a general meeting of a company assent with full knowledge and consent to some matter which a general meeting of the company could carry into effect. Such assent is as binding as a resolution in general meeting would be.[61] The doctrine is one therefore which dispenses with the consumptive effect of formalities.

401 The Giovinazzo Parties rely upon Mr Billis' admission that he made no objection to Mr Giovinazzo's appointment when Mr Giovinazzo told him that Ms Pendergast had resigned and Mr Giovinazzo was the new director. They also sought to rely on Mr Billis' concession that had RCL in fact been asked to authorise Mr Giovinazzo's appointment as a director in place of Ms Pendergast, it would have voted so as to provide for such appointment. Mr Billis' acknowledgement in that respect is consistent with the approach originally taken by RCL's solicitors in July 2022 when the first of its motions proposed to be passed at a resolution of shareholders sought to confirm Mr Giovinazzo's appointment as a director along with the appointment of two new directors.

402 The Duomatic principle does not assist Mr Giovinazzo. It is a doctrine which goes to formalities and not substance; as Meagher JA (with whom Samuels JA and Priestley JA agreed) in Herrman v Simon & Ors,[62] the 'Duomatic principle' is essentially one of waiver.[63] The person or entity against whom the principle is sought to be invoked must have knowledge of the relevant right in respect of which the waiver is said to arise. To put it another way, the principle can only operate where the person against whom the principle is said to be invoked has full knowledge of the matter which is the subject of the waiver. Here, for the 'Duomatic principle' to apply, the Giovinazzo Parties must establish that RCL knew either that the appointment of Mr Giovinazzo as a director had to occur at a properly convened meeting of shareholders, the subject of notice in accordance with cl 5 of GPR's constitution for the purpose of appointing Mr Giovinazzo as a director or that the ratification of his appointment by Ms Pendergast had to occur at such a meeting. They must also establish that RCL knew that this had not occurred and nevertheless acquiesced to the appointment of Mr Giovinazzo as a director despite the failure to observe the formalities set out in GPR's constitution.

403 It is one thing for Mr Billis to have voiced no objection or assumed that Mr Giovinazzo was acting as a director; it is also one thing for Mr Billis to say that had a meeting of shareholders been called he would have voted RCL's shares in favour of Mr Giovinazzo's appointment.

404 However, the Giovinazzo Parties have not established that Mr Billis knew that the validity of Mr Giovinazzo's appointment required such a meeting, that it had not occurred but that in any event Mr Billis acquiesced to the appointment of Mr Giovinazzo as a director. Mr Billis denied that he approved of Mr Giovinazzo's appointment in disregard of the formalities required to be observed by GPR's constitution.

405 Accordingly, I do not accept that Mr Giovinazzo was appointed as a director of GPR with effect from 30 June 2021.

406 Even if it were the case that Mr Giovinazzo was validly appointed as a director, the relevant acts or omissions of Mr Giovinazzo which are sought to be impugned in this proceeding, namely the Purported 19 July Share Issue and the entering into of the GPR/Omeo Gold Loan Agreements, call to be assessed in circumstances where on 18 July 2022, both shareholders of GPR had signed a circulating resolution of members of GPR which removed Mr Giovinazzo as a director of GPR. By reason of s 249A of the Act, the circulating resolution took effect when the last shareholder signed which was 18 July 2022, when Ms Pendergast signed the circulating resolution on behalf of TLH. This was also made clear from the terms of the circulating resolution.

407 It follows therefore that on 18 July 2022, Mr Giovinazzo was removed as a director of GPR even if he had been validly appointed on 30 June 2021 contrary to my conclusion above.

408 In oral closing submissions, counsel for the Giovinazzo Parties accepted that the Purported 19 July Share Issue could not stand, if I accepted Mr Billis' evidence as to the terms upon which the GPR Shares were held, that is to say they were not held on trust for Mr Giovinazzo.

409 That concession was properly made. First, even if I were to accept Mr Giovinazzo's evidence that the Employee Stock Option Agreement was entered into on the date on which it bears 3 August 2021, then the agreement was executed on GPR's behalf by Mr Giovinazzo purportedly as a director of GPR. Given my conclusion that he was not validly appointed on 30 June 2021, then the agreement does not bind GPR on that ground alone.

410 For completion, I am not persuaded that the agreement was in fact executed on 3 August 2021. As stated above, I am not prepared to accept Mr Giovinazzo's evidence absent reliable corroborating material provided in either documentary form or from a reliable third party witness. That has not been provided. It is generally now the case that the date on which agreements have been created is a matter that can be established without difficulty. Generally, evidence as to the metadata relating to document creation can be produced which for the most part establishes without fear of controversy, the date upon which a document was created. That was not the case here. RCL's solicitors, JWS, raised concerns with respect to the Purported 19 July Share Issue in letters dated 21 July 2022 and 29 July 2022. Tisher Liner FC Law responded on Mr Giovinazzo's behalf by letter dated 15 August 2022 stating that the shares had been issued pursuant to the Employee Stock Option Agreement which had been entered into by GPR and Mr Giovinazzo on 3 August 2021 and offered to provide a copy of that agreement upon the receipt of confirmation that RCL would keep the agreement confidential. RCL's solicitors replied by letter dated 18 August 2022 denying that Mr Billis was aware of the purported agreement, requesting a copy and reiterating that the purported share issue was unauthorised. By a notice to produce served 30 April 2024, RCL requested production at the trial on 6 May 2024 of, among other things, the Employee Stock Option Agreement in its native form or metadata in relation to the Employee Stock Option Agreement evidencing the date upon which the Employee Stock Option Agreement was created, saved and/or edited and any and all drafts of the Employee Stock Option Agreement. No such production was effected presumably on the basis that if Mr Giovinazzo's evidence is accepted, that it was prepared by the mathematician on his computer and that Mr Billis received only a hard copy which he had allegedly provided subsequently to Mr Davenport (who could not recall seeing the agreement in final form).

411 Regardless, it was obvious that the date of the creation of the Employee Stock Option Agreement was a live issue.

412 Despite this, the Giovinazzo Parties did not seek to call Ms Bidstrup who allegedly witnessed the agreement or Mr McBrearty who allegedly prepared it. Although Mr Davenport gave evidence that he had discussed an Employee Stock Option Agreement with Mr Giovinazzo, Mr Davenport's evidence was vague and imprecise as to the time at which those discussions occurred and Mr Davenport did not produce any form of contemporaneous documentary evidence which would enable the date upon which he had been provided with that agreement or held the discussions, to be ascertained.

413 Accordingly, the quality of the evidence adduced from the Giovinazzo Parties is not sufficient given my concerns more generally with Mr Giovinazzo's evidence to enable me to conclude that the agreement was prepared on the date on which it bears.

414 I do not accept Mr Giovinazzo's evidence that he discussed the agreement with Mr Billis. It was denied by Mr Billis and I consider it fanciful that Mr Billis would have acquiesced to GPR entering into an agreement with Mr Giovinazzo in those terms. The effect of the agreement would have been to enable the dilution of RCL's controlling interest in GPR from 99% to 9.9% despite Mr Billis having earlier insisted, as I have found, that the price of RCL's funding of GPR's commitments was being given control over GPR. I note that there is no corroborating evidence of Mr Billis having been told about the Employee Stock Option Agreement in any email or WhatsApp messages which passed between the parties. Further the letter from RCL's solicitors, JWS, dated 18 August 2022 asserting that Mr Billis was not aware of the Employee Stock Option Agreement was not met with any response by Mr Giovinazzo's solicitors to the effect that the agreement was discussed and acquiesced to by Mr Billis prior to its execution.

415 Even if Mr Giovinazzo executed the Employee Stock Option Agreement in his capacity as a validly appointed director of GPR and the agreement was entered into on 3 August 2021, Mr Giovinazzo executed the agreement in that capacity as a director of GPR in circumstances which gave rise to an obvious conflict between the interests of GPR as a whole and Mr Giovinazzo's own personal interests. Otherwise, he executed the agreement on GPR's behalf in circumstances which were commercially unfair and oppressive to RCL's interests as the then majority shareholder as it gave rise to the obvious possibility (which then ensued) of diluting RCL's controlling interest.

416 On the exercise by Mr Giovinazzo of his rights under the Employee Stock Option Agreement, GPR first had to increase its share capital so as to facilitate the allotment of the additional shares to Mr Giovinazzo. The date upon which the company increased its share capital and then allotted the shares to Mr Giovinazzo and TLH was 19 July 2022. This was also the date on which Mr Giovinazzo paid for the shares allotted to him and facilitated the payment of the shares allotted to TLH, the date on which GPR issued the share certificates to Mr Giovinazzo and TLH and the date on which GPR lodged the necessary forms with ASIC recording the increase in GPR's issued shares.

417 By 19 July 2022, Mr Giovinazzo was not a director of GPR, having been removed (if he was ever validly appointed) by the circulating resolution passed 18 July 2022. Accordingly, the increase in GPR's share capital was not properly authorised by GPR as Mr Giovinazzo had no authority to act as a director in increasing the company's share capital.

418 Next, the Purported 19 July Share Issue was contrary to cl 7 of GPR's constitution which provides that the directors may issue shares in the company at any time but before issuing shares of a particular class, the directors must offer them to existing holders of shares of that class. As far as practicable the number of shares offered to each shareholder must be in proportion to the number of shares of that class that they already hold.

419 The shares that were newly issued on 19 July 2022 and then allotted to Mr Giovinazzo and TLH were shares in the same class as those previously issued to RCL (and TLH). The shares were not first offered to the existing holders of shares in that class contrary to cl 7.6 of the constitution.

420 Moreover, as Mr Giovinazzo accepted, the company share capital was increased and the shares were allotted to Mr Giovinazzo and TLH to thwart Mr Billis' attempt to obtain control of GPR by removing Mr Giovinazzo as a director (in the event that he had been validly appointed) and by appointing two new directors. The notice of meeting sent by RCL's solicitors, JWS, contemplated a meeting of shareholders on 20 July 2022. The timing of the Purported 19 July Share Issue in those circumstances makes it clear that it occurred as an attempt to thwart the appointment of the alternative directors at that meeting. Mr Giovinazzo confirmed its essential purpose in his evidence, 'it was done to stop Anton stealing my company'. The sole purpose of the share issue was to create voting power destroying RCL's existing majority in advance of an anticipated members meeting. In any event, the meeting on 20 July 2022 was no longer required on account of RCL and TLH having both signed the circulating resolution by 18 July 2022.

421 However, to the extent to which it otherwise would have been a valid share issue and allotment in the sense that it was as a result of the valid increase in share capital and issue of shares by GPR by its duly appointed director (which is not the case), then it is oppressive having occurred for the improper purpose of altering the voting power and influencing the outcome of general meetings.

422 Accordingly, the Purported 19 July Share Issue is invalid and orders will be made accordingly.

423 In its ASOC, RCL pleaded that Mr Giovinazzo had purported to cause GPR to borrow funds from Omeo Gold on the terms of the GPR/Omeo Gold Loan Agreements and that the conduct was contrary to the interests of GPR's members as a whole and oppressive to or unfairly prejudicial to RCL.

(a) Mr Giovinazzo purporting to cause GPR to borrow funds from and provide security to a company related to Mr Giovinazzo and Omeo Gold;

(b) Mr Giovinazzo purporting to cause GPR to borrow funds from Omeo Gold in circumstances where Omeo Gold was not a recognised provider of finance on commercial terms, and no documents had been disclosed that suggest that such funds, as were loaned to GPR by reference to the GPR/Omeo Gold Loan Agreements, were directly deposited into the bank account of GPR by Omeo Gold (which was contemplated by the terms of the GPR/Omeo Loan Agreements);

(c) purported to cause GPR to borrow funds on terms that obliged GPR to pay interest to Omeo Gold at interest rates that exceeded commercial interest rates;

(d) purported to cause GPR to incur liabilities in circumstances where GPR was not able to meet those liabilities as and when they fell due;

(e) failed to disclose to RCL that GPR intended to execute the GPR/Omeo Gold Loan Agreements and failed to provide RCL with an opportunity (including in its capacity as a shareholder of GPR) to provide funding to GPR (including on terms more commercially favourable to GPR than the terms of the GPR/Omeo Gold Loan Agreements.

425 The relief sought by RCL in its originating process filed 22 August 2022 included an order that the affairs of GPR be conducted on the basis that Mr Giovinazzo is not a director or secretary of the company. This form of relief was maintained in the ASOC and is also reflected in the agreed list of issues in dispute filed by the parties on 8 August 2023. Insofar as the list of issues related to the GPR/Omeo Gold Loan Agreements, it identifies the following:

(a) were loan agreements entered into between GPR and Omeo Gold from on or about 28 July 2022 ... and, if so, are the GPR/Omeo Gold Loan Agreements valid, binding and effective;

(b) by his conduct in executing the GPR/Omeo Gold Loan Agreements and by proceeding on the basis that GPR is bound by the GPR/Omeo Gold Loan Agreements, did Mr Giovinazzo conduct the affairs of GPR in a manner that was contrary to the interests of GPR's members as a whole and/or oppressive to, or unfairly prejudicial to, RCL?

RCL's prayer for relief also sought an order for an accounting of the benefits received by each of GPR and Omeo Gold in respect of any funds advanced pursuant to the GPR/Omeo Gold Loan Agreements and/or any payments made pursuant to those agreements (including in respect of interest).

426 In RCL's opening, as noted above, RCL proffered a form of order in slightly different terms with the proposed form of order being an order that until further order (to afford the new directors an opportunity to undertake an accounting of the benefits received by each of GPR and the second plaintiff by counterclaim (Omeo Gold) by reason of their dealings in the period since July 2022), Omeo Gold is restrained from exercising any rights conferred by the terms of loan agreements entered into by GPR and Omeo Gold in the period on and from 28 July 2022.

427 RCL also adverted to in its opening to, inter alia, its complete lack of visibility over what money had been provided by Omeo Gold to GPR, what the money so provided by Omeo Gold to GPR had been utilised for and the source of any funds lent by Omeo Gold to GPR.

428 As noted above, the Giovinazzo Parties obtained leave to adduce evidence from Mr Davenport which included the production of numerous documents which had not previously been discovered, as well as documents between Omeo Gold and the third party lenders, the Wagner Group and National Wealth Education Group.

429 In written closing submissions, the Giovinazzo Parties argued that Mr Giovinazzo caused Omeo Gold to borrow and on-lend funds to GPR which enabled GPR to meet its earn-in obligations and that the liabilities that had been incurred by GPR to Omeo Gold correlated entirely to the obligations that Omeo Gold had incurred to the third party lenders. Accordingly, they submitted that no untoward benefit had been provided to Omeo Gold and that otherwise the GPR/Omeo Gold Loan Agreements were in GPR's interest because it preserved the benefit of the Rimfire Agreements and conferred no benefit on Omeo Gold at all. Further that the terms of the GPR/Omeo Gold Agreements were the best terms available in the circumstances as nobody else was willing to lend money to GPR directly given the ongoing litigation.

430 Accordingly, the Giovinazzo Parties submitted that there was no basis for a finding of oppression, nor any need in light of the evidence adduced at trial from Mr Davenport for any further accounting exercise to be undertaken.

431 In oral closing submissions, the Giovinazzo Parties however accepted that an order for an account might be appropriate as long as the Court was satisfied that the account was of utility, in circumstances where, the relevant information that was likely to be adduced in relation to a taking of an account had been given by Mr Davenport. The Giovinazzo Parties otherwise opposed that part of the relief which restrained Omeo Gold from seeking to enforce the GPR/Omeo Gold Loan Agreements pending the taking of the account.

432 Whilst the Giovinazzo Parties purported to provide the type of information that ordinarily would have been the subject of an account and inquiry, the circumstances of the production and the quality of the evidence adduced leave much to be desired. I have set out above aspects of the inconsistency in the material provided.

433 The quality of the documentary evidence adduced to explain the GPR/Omeo Gold Loan Agreements was unsatisfactory with the exception of the bank statements for the Rimfire accounts. Whilst there is no reason to doubt the authenticity of the bank statements for the Wagner Group and National Wealth Education Group, the bank statements of the Wagner Group seem incomplete which may explain the absence of the repayment and those of the National Wealth Education Group end at 7 July 2023 and are redacted. The timing and arguably the redacted nature impact the utility of that which has been provided.

434 There are number of issues with the purported GPR/Omeo Gold Loan Agreements.

435 The agreements were purportedly executed by GPR by Mr Giovinazzo as and from 28 July 2022. On the findings set out above, Mr Giovinazzo was never a validly appointed director of GPR and if he was he had been removed as a director of GPR, by reason of the circulating resolution with effect from 18 July 2022. As GPR's constitution provided that the business of the company was to be managed by the directors, and Mr Giovinazzo was not a director, the GPR/Omeo Gold Loan Agreements are not binding on GPR for that reason alone.

436 A company can only act through those who are authorised to act on its behalf. The only purported conferral of authority on Mr Giovinazzo arose from his alleged status as a director. As he was never a director and if he was had been removed on 18 July 2022, he had no authority to enter into the GPR/Omeo Gold Loan Agreements on GPR's behalf. There can be no question of ostensible authority or the application of the indoor management rule[64] or its statutory equivalent in ss 128 and 129 of the Act, as the counterparty is Omeo Gold. As its sole director, Mr Giovinazzo therefore had knowledge of the defect in his authority as a purported director of GPR.

437 To the extent to which they would otherwise have been binding on GPR (which they are not) they are otherwise oppressive in the sense of being contrary to the interests of the company as a whole having been executed by a person acting as director but not validly appointed.

438 There is another vice with the GPR/Omeo Gold Loan Agreements. The Giovinazzo Parties submit that there was no vice in Mr Giovinazzo purporting to execute the GPR/Omeo Gold Loan Agreements on behalf of both GPR and Omeo Gold on terms which provided, inter alia, for GPR to provide security in favour of Omeo Gold and charged high rates of interest. It was submitted this was as the high rate of interest was that which was charged by the Wagner Group and National Wealth Education Group to Omeo Gold.

439 I do not accept that this is a sufficient answer to dispose of any complaint by RCL. First, RCL had previously provided finance to GPR on an interest free basis; GPR could thus use the moneys so advanced by RCL[65] without incurring an interest liability. The whole need for an alternative source of finance came about as a result of Mr Giovinazzo's flawed attempt to rely upon the Purported 19 July Share Issue and remain in control of GPR in the interim. Had it not been for Mr Giovinazzo's reliance upon the Purported 19 July Share Issue, and his subsequent wrongful assertion that the GPR Shares were held by RCL on trust for him, there would have been no need for the alternative funding. The Giovinazzo Parties' assertion that RCL 'refused' to finance GPR's obligations under the Rimfire Agreements after May 2022, overlooks the critically important fact that RCL as the 99% shareholder had been wrongly diluted and its attempt to vote its 99% shares in favour of the two new directors had been rendered ineffective by Mr Giovinazzo's wrongful Purported 19 July Share Issue. Any 'refusal' occurred in this context.

440 Secondly, whilst it was in Omeo Gold's interest for GPR to pay Omeo Gold the same interest being charged by the third party lenders to Omeo Gold, it does not follow that it was in GPR's interest to agree to match the interest rate being charged by the third party lenders to Omeo Gold. The evidence as to the reason why this occurred was provided solely by Mr Davenport which was to the effect that the terms were set by the third party lenders (he being a director of one of those lenders) and that by some unexplained process Mr Giovinazzo then executed the agreements between GPR and Omeo Gold on a basis which conformed to the third party lender's requirements. The third party was not a party to the GPR/Omeo Gold Loan Agreements so it is difficult to see how it could have set the terms of agreements to which it was not a party. There was no evidence by Mr Giovinazzo as to the circumstances by which the agreements were executed by him in the name of both GPR and Omeo Gold which conformed to the requirements of the third party's requirements. In fact, the third party was National Wealth Education Group, of which Mr Davenport was a director, and it seems arranged by Mr Davenport.

441 Mr Giovinazzo's execution of the agreements on behalf of GPR in those circumstances occurred where he was in a position of conflict between his interests owed to Omeo Gold and his interests owed as a de facto but not actual director of GPR. They were also contrary to the interests of RCL, GPR's majority shareholder, as they purported to bind GPR to an interest liability to Mr Giovinazzo's company, in circumstances where, the relevant counterfactual was that RCL's nominees were the two directors of GPR and that RCL's hitherto funding on an interest free basis would have continued.

442 Thirdly, and relatedly, the majority shareholder, RCL and its nominee directors were not informed of these alleged agreements in anything like a timely or comprehensive manner. Such information, as was provided, was obtained only in the course of this litigation and in a most irregular and unsatisfactory manner. This is not a case of a request for information made by a minority shareholder with no legitimate management expectation. RCL held 99% of the shares in GPR and its two nominees were the validly appointed directors of the company. It was excluded from any board role and associated right of management control whilst Mr Giovinazzo purported to bind GPR to loan agreements with Omeo Gold.

443 Fourthly, such provision of information as occurred mid trial was most unsatisfactory. The GPR/Omeo Gold Loan Agreements were plainly discoverable and the failure of the Giovinazzo Parties to discover the documents in timely manner was egregious and inexcusable. But even so, one would have thought that when the documentation was provided, it would have been relatively easy to explain that third party lenders lent money to Omeo Gold on particular terms and that Omeo Gold loaned the money to GPR on matching terms and that GPR made particular payments to Rimfire. One would have thought that the paper trail would have been easy to establish. Apparently not.

444 Whilst, some of the lack of clarity may have been the product of the provision of information at a late stage, the evidence about the GPR/Omeo Gold Loan Agreements including the lateness of their provision, gave rise to a number of questions. I also accept RCL's submissions that the circumstances more generally of the late provision of the GPR/Omeo Gold Loan Agreements were not capable of being tested by RCL.

445 I accept that the solicitors for the Giovinazzo Parties provided the documents to the solicitors for RCL as soon as practicable after they received them from their client. Given that a substantial number of the purported loan agreements were not provided until such time as the 4SCB was served, despite being allegedly entered into much earlier, an available inference is that the documents did not exist and were being created and then back dated. It is not necessary for me to do draw this inference given the conclusions I have reached as to the enforceability of the GPR/Omeo Gold Loan Agreements in any event.

446 Notwithstanding the above, I accept that significant moneys were paid to Rimfire for GPR's benefit by National Wealth Education Group and to a much lesser extent Wagner Group in the period from 28 July 2022 to 21 June 2023 and that other payments were made by persons or parties not identified on the evidence to Rimfire for GPR's benefit from 30 June 2023 to 29 January 2024.

447 In the circumstances, GPR is not bound by the GPR/Omeo Gold Loan Agreements. Mr Giovinazzo was not a director of GPR so could not bind it to the agreements. Further the acts or omissions of Mr Giovinazzo, who was not a director of GPR at the time, and in circumstances where Mr Giovinazzo was also a director of the counterparty to the GPR/Omeo Gold Loan Agreements, was conduct which was to the detriment of RCL, in its capacity as the 99% shareholder of GPR, and was commercially unfair and oppressive for the purposes of s 232(e) of the Act.

448 I do not, however, consider that it is appropriate to grant RCL the relief sought in the form of the injunction sought at trial. Nor do I consider that it is necessary or appropriate to make an order for an account or enquiry.

449 Although GPR is not bound by the GPR/Omeo Gold Loan Agreements, because, among other things, they were executed by Mr Giovinazzo who was not a director of GPR at the time the agreements were entered into and otherwise were effected by Mr Giovinazzo's position of obvious conflict of interest, Omeo Gold has not sought to recover the moneys advanced in this action. In that context, there is nothing to restrain. Further although Omeo Gold is not able to enforce the GPR/Omeo Gold Loan Agreements because these agreements are not binding on GPR, to the extent to which moneys were provided, however indirectly (to Rimfire for the purpose of preserving GPR's interest in the Rimfire Agreements), this may not preclude the party which provided the funds for GPR's benefit, presumably Omeo Gold, from seeking some form of remedy of restitutionary or quasi restitutionary nature.

450 Omeo Gold did not seek to recover any moneys advanced by it to GPR pursuant to the GPR/Omeo Gold Loan Agreements, whether as a claim for moneys owing under the agreements or otherwise.

451 In those circumstances, a remedy which in effect seeks to prevent Omeo Gold from recovering any moneys goes further than is required to deal with the effects of the oppressive conduct and the conclusions as to validity of the GPR/Omeo Gold Loan Agreements.

452 RCL will be entitled to declaratory relief with respect to the validity of the GPR/Omeo Gold Loan Agreements purportedly entered into from 18 July 2022 (which was the date on which RCL's nominees were appointed as the directors of GPR).

453 Nor do I consider that it is appropriate or necessary to order an account and inquiry. Whilst the explanations and accompanying documentation provided by the Giovinazzo Parties left much to be desired, I do not consider that an order for an account and inquiry is appropriate. Although, there is no specific power to make such an order for an account set out in s 233 of the Act, I accept that the broad reach of the section which extends to making any order that the court 'considers appropriate' extends to the power to make such an order. The considerations which inform the exercise of the equitable jurisdiction to order such a remedy provide some guidance as to the circumstances when it will be appropriate to do so. The remedy of account is an equitable one which is discretionary.[66] An account will not be ordered if it serves no useful purpose.[67]

454 I do not propose to order an account and inquiry. Upon finalisation of this proceeding by the making of appropriate orders and declarations, the new directors of GPR will have access to GPR's books and records, and should have no difficulty in making inquiries of Rimfire to the extent necessary to enable them to ascertain the payments made under the Rimfire agreement. They will be in a position to form a view about the extent of the benefits obtained and to respond accordingly to any claim made by Omeo Gold on whatever basis Omeo Gold may be advised.

455 It is neither necessary nor appropriate for this proceeding to remain on foot for the purposes of some ongoing investigation in relation to Mr Giovinazzo's activities as appointed director of GPR, whether in respect of the GPR/Omeo Gold Loan Agreements or more generally.

456 In the counterclaim, the Giovinazzo Parties seek declarations that RCL holds the GPR Shares on trust for Mr Giovinazzo as security for the advances and that Mr Giovinazzo is entitled to redeem the GPR Shares upon payment of the advances. The conclusions above to the effect that the shares are not held on trust and that the loan was made by RCL to GPR necessarily carries with it the consequence that this claim for declaratory relief fails.

457 The Giovinazzo Parties also seek a declaration that RCL holds the Apple iSports shares on trust for Omeo Gold as further security for the advances and that Omeo Gold is entitled to redeem the Apple iSports shares upon repayment of the advances. This claim for declaratory relief fails on the same grounds.

458 In addition, the agreement by which the Apple iSports shares were said to be held on trust is alleged to have been made orally on or about 28 February 2022. The agreement is said to comprise telephone conversations between Mr Giovinazzo and Mr Billis[68] on or around 28 February 2022 to the effect that Mr Giovinazzo agreed to cause Omeo Gold to direct that 5.7 million shares in Apple iSports, which shares were to be issued in Omeo Gold's name, be issued in RCL's name and that RCL would hold those shares on the same terms as the GPR Shares.

459 There was no evidence given by Mr Giovinazzo in support of such agreement; the evidence as to the trust arrangement which I have rejected relating to the GPR Shares was said to be related to the concern with respect to the change of control issue under the Fifield Earn-In Agreement. This had no counterpart with respect to the Apple iSports shares.

460 In examination-in-chief Mr Giovinazzo was asked questions about matters concerning Apple iSports around February 2022. He was taken to an email from Mr Giovinazzo to Mr Billis, Mr Booker, Mr Connelly, Mr Nairn and Mr Davenport sent 10 February 2022 which forwarded on an email from Daniel Luciano to Mr Sussich which related to a process for the approval of the name change from PVNC to Apple iSports Group, Inc. He was then asked the following:

... Mr Giovinazzo, you say that you've given Mr Billis and RCL - amongst other things - Apple iSports shares as security for a loan, and there seems to be a process going on in the background. You referred to it as a 'reverse takeover' .... Can you explain to his Honour just what it was that was given up as security in the first instance? And what impact this process might have on that security, if any?

So, the reverse of Apple iSports Inc going into - and we'll call it 'Apple iSports Group' because that's its name, though - is that Apple iSports Inc was issued 200 million shares or thereabouts in Apple iSports Group, my company Omeo Gold had a five percent holding in Apple iSports Inc, as a result of that, I directed that when that shareholding was put through, 5.7 million shares into Resource Capital's name to be held in trust for me and as security as I had said previously, and the balance of the stock were held in the name of Omeo Gold.

That was the extent of his evidence. It is insufficient to make out the pleaded trust arrangement which is not otherwise referred to in any other document, although the repayment deed prepared by Mr Christensen does contain a recital to the effect. As noted above this document is not signed by Mr Billis and otherwise there is no basis to suggest that Mr Billis agreed that the shares in RCL's name were held on trust.

461 In any event, Mr Giovinazzo's evidence is contradicted by other documentary evidence. In fact, the reverse takeover took place in 2023 not 2022 and the issue of the Apple iSports shares to RCL occurred on 28 February 2022.

462 Whilst I accept that Mr Billis' evidence in relation to the Apple iSports shares was unclear and largely unintelligible, the onus in respect of this aspect of the claim rests on Mr Giovinazzo and this has not been discharged.

463 For the reasons set out above, I have concluded as follows:

(a) The GPR Shares registered in RCL's name are not held by RCL on trust for Mr Giovinazzo;

(b) RCL advanced the money to GPR on an interest-free basis and accordingly Mr Billis did not advance the moneys to Mr Giovinazzo;

(c) Mr Giovinazzo was never validly appointed as a director of GPR;

(d) To the extent to which Mr Giovinazzo was validly appointed as a director of GPR with effect from 30 June 2021, then by reason of the circulating resolution executed by RCL and TLH on 18 July 2022, he was removed as a director of GPR with effect from that date and Messrs Douglas and Berzins have been the validly appointed directors of GPR since that date;

(e) The Purported 19 July Share Issue is invalid with no effect; and

(f) The GPR/Omeo Gold Loan Agreements are invalid and of no effect on GPR.

464 Declarations will be made to that effect along with ancillary orders. The counterclaim will be dismissed. Subject to hearing from the parties, the orders I propose to make today are that the parties forward a minute of orders to give effect these reasons including as to costs or in the event that there is no agreement as to the form of order, their respective proposed minutes of order together with short submissions in support, if so advised, by 4:00pm on 11 September 2024.

GOLDEN PLAINS RESOURCES PTY LTD (ACN 636 974 108)

LAKE GRACE EXPLORATION PTY LTD (ACN 009 406 437)

GOLDEN PLAINS RESOURCES PTY LTD (ACN 636 974 108)

[1] The fourth defendant was not represented in the proceeding and played no active part, but was joined as a defendant for reasons of conformity by order made 27 March 2024 by Justice Connock.

[2] 3 Apples Childcare Centre Pty Ltd v MMC Pacific International Pty Ltd [2023] VSC 21, [144], approving Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd (1999) 161 ALR 599; Gestmin SGPS SA v Credit Suisse (UK) Ltd (2013) EWHC 3560.

[3] (1987) 1 Lloyd's Rep 207 ('Grace Shipping').

[4] [1985] 1 Lloyd's Rep 1 ('Armagas').

[5] Grace Shipping (n 3) 215-216, quoting Armagas (n 4) 57.

[7] This equates to 0.32 cents per share.

[8] Fifield Earn-In Agreement cl 2.1(a).

[9] Fifield Earn-In Agreement cl 2.1(c).

[10] Clause 3.6(c) of the Fifield Earn-In Agreement incorrectly lists the amount payable following the Deposit as $264,000. This is an error and the amount payable following the Deposit should read $234,000.

[11] For clarity, Mr Giovinazzo said in oral evidence that he wanted to sell his ABA shares for $250,000 to repay Mr Billis however in documentary evidence the amount paid by Mr Billis for the Rimfire subscription was $240,000. The most probable inference is that the additional $10,000 represents interest on the $240,000.

[12] Which represented an increase of 0.18 cents on the initial subscription rate of 0.32 cents per share.

[13] See paragraph [10] of the Reply.

[14] See paragraph [6A]-[6D] of the Defence and Counterclaim.

[15] The next document lodged at the ASIC registry was on 17 August 2021, which comprised a Form 484C which was a change to the company's principal place of business, followed by a further form lodged on 23 December 2021, Form 484B, which was a change of registered address.

[16] This document had not in fact been discovered and had been included by the Giovinazzo Parties in a Supplementary Court Book filed on Sunday 5 May 2024, the day before the trial commenced. Although filed without leave, the plaintiff did not object to Mr Billis being cross-examined on documents contained in the Supplementary Court Book.

[19] The Giovinazzo Parties had made two sworn affidavits of documents.

[20] Lederberger and Scheiner v Mediterranean Olives Financial Pty Ltd [2012] VSCA 262; (2012) 38 VR 509, 516-520 [23]-[34].

[21] Edge Development Group Pty Ltd v Jack Road Investments Pty Ltd [2019] VSCA 91.

[22] United Resource Management Pty Ltd v Par Recycling Services Pty Ltd [2023] NSWCA 236, [43].

[23] Hightime Investments Pty Ltd v Adamus Resources Ltd [2012] WASC 295, [98]-[99]; County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193, [24] (Spigelman CJ).

[24] Clause 2.2 of the April 2022 draft repayment deed.

[28] This is of no relevance in the circumstances here.

[29] Presumably, the reference to 'Lender' is an error and should refer to the 'Borrower'.

[30] The first two entries only relate to payments made by the Wagner Group; the balance are from the Nation Wealth Education Group.

[32] Corporations Act 2001 (Cth) s 292(2).

[33] Foreign Acquisitions and Takeovers Act 1975 (Cth) ss 43, 47.

[34] Hillam v Ample Source International Limited (No 2) [2012] FCAFC 73; (2012) 202 FCR 336, 337 [4], cited in Hylepin Pty Ltd v Doshay Pty Ltd [2021] FCAFC 201; (2021) 288 FCR 104, 128 [124] ('Hylepin').

[35] [1985] HCA 68; (1980) 180 CLR 459.

[38] Hylepin (n 35) 129-130 [133]-[136].

[39] Tomanovic v Global Mortgage Equity Corporation Pty Ltd [2011] NSWCA 104; (2011) 288 ALR 310, 353 [172].

[40] KSG Investments Pty Ltd v Open Markets Group Ltd (2021) 151 ACSR 124, 186 [275].

[41] Re Dawning Investments Pty Ltd and Dawning Developments Pty Ltd [2022] VSC 641; (2022) 68 VR 226, 239 [31(f)], citing Re Bright Pine Mills Pty Ltd [1969] VicRp 121; [1969] VR 1002, 1011.

[42] [2022] VSC 641; (2022) 68 VR 226 ('Dawning').

[43] Ibid [31(f)] (citations omitted).

[44] [2016] VSC 303; (2016) 114 ACSR 1.

[45] Ibid 28-29 [149]-[150] (citations omitted).

[46] [2022] VSC 136.

[49] [2022] WASC 7.

[51] Campbell v Backoffice Investments Pty Ltd [2008] NSWCA 95; (2008) 66 ACSR 359, 406 [214].

[52] Re Renex Founder Hold Co Pty Ltd [2024] VSC 244, [207].

[53] BBHF Pty Ltd v Sleeping Duck Pty Ltd [2024] VSC 320, [69].

[54] Dawning (n 43) 241 [36], citing Turnbull v NRMA Ltd [2004] NSWSC 577; (2004) 50 ACSR 44, 54 [42].

[55] Re Skytraders Pty Ltd [2022] VSC 416, [42]; Dawning (n 43) 241 [36], citing Donaldson v Natural Springs Australia Ltd [2015] FCA 498, [270].

[56] [2018] NSWSC 95.

[60] [1969] 2 Ch 365.

[62] (1990) 4 ACSR 81.

[64] Royal British Bank v Turquand [1856] EngR 470; (1856) 6 E&B 327; 119 ER 886.

[65] Accounted for in its accounts as loans from Lake Grace.

[66] Warman International Ltd v Dwyer [1995] HCA 18; (1995) 182 CLR 544, 559.

[67] Mulherin as Trustee for the HD Mulherin Family Trust v Quinn Villages Pty Ltd [2007] QSC 231, [122].

[68] Paragraph [6F] of the Defence and Counterclaim.