261 Mr Dobric testified that if he had paid Magic Touch approximately $12,000, he would have done so by cash, not by cheque. He stated that he could not remember when he made the payment, but had paid it to a person called "Bojan", who had a cleaning business. At that point, he shifted ground and testified that he did know that Magic Touch Cleaning Services had been paid, because "I paid the person, yes I did pay the person, I kind of did pay the person, yes".
262 Mr Dobric conceded that he would have been given a receipt for the payment "I'm pretty sure", but had not produced it pursuant to a notice to produce, as he had had no time to do so.
263 He stated that he was not involved in the cleaning, but had driven past the factory "and he was cleaning, Pantelis must have gone past the factory too and said he's fine".
264 He was unable to recall how much time elapsed between the performance of the cleaning service and his payment of the relevant invoice. He testified that he usually kept between $20-30,000 in cash in his house. He did not have a bank account, so there was no bank record of any kind to evidence the relevant payments.
265 Mr Dobric testified that he could not remember how much he paid the NPS Group, as "I haven't got anything in front of me to have - no, I don't remember, I remember the total amount was in about 19 something thousand dollars".
266 Mr Dobric conceded that he currently operated his business from premises owned by a company controlled by Mr Charitopoulos. He conceded that the premises were provided to him by that company rent-free.
267 He conceded that Mr Charitopoulos had never asked him to return any of the vans. He had never refused to return any of the vans to Mr Charitopoulos "because he never asked for them back".
268 At a later point, however, Mr Dobric testified that he would not return the vans to Mr Charitopoulos if asked, because "they're registered to Booze2U which I'm a director of" and "I said I'd pay for them when they've got a clean title".
269 He professed not to know, or to be unsure, whether the bank claimed an interest in the vans, although he agreed that he had attended Mr Codling's office on 10 May 2006 with Mr Charitopoulos after a van was repossessed. He stated that his interest had been in the perishable stock. He conceded that he presumed that Mr Charitopoulos had attended Mr Codling's office on 10 May 2006 to reclaim the repossessed van.
270 Mr Dobric's testimony was, in my opinion, self-contradictory, inconsistent, vague and inherently incredible. I did not consider Mr Dobric to be a truthful witness.
271 Mr Collinson submitted that the plaintiffs were not entitled to allege that the sale to Booze2U was a sham as the allegation was not included either in the contempt summons or the amended summons. The sale to Booze2U was first raised by the defendants' affidavits sworn 30 August 2006 and in my opinion, the plaintiffs were entitled to make submissions in relation to it. The defendants had the opportunity to call evidence and were given leave, at a late stage, to file and serve the affidavit of Mr Dobric in relation to the sale of Booze2U.
272 Mr Collinson did not contend that Haritopoulos was the owner of the vans and much of the other equipment removed from the Athol Park premises on 2 May 2006 and purportedly sold to Booze2U.
273 It appears that Haritopoulos had no title to the vans and equipment it purported to sell to Booze2U. Booze2U would therefore have no right to retain possession of the vans and equipment as against the true owner.
274 The defendants, however, contended that the sale by Haritopoulos, even if otherwise invalid, conferred a right to possession on Booze2U as against Haritopoulos or Mr Charitopoulos, so that the vans are not within paragraph 1 of the 5 May 2006 order, and the failure to return them is not a breach of that order.
275 In my opinion, irrespective of Haritopoulos' lack of title, the sale to Booze2U is not valid and enforceable against Haritopoulos.
276 I am satisfied to the requisite standard that the deposit was never paid, whether as stipulated by the sale agreement or by some other means, such as the satisfaction of Haritopoulos' debts to third party service providers in a like amount, or any amount. The defendants conceded that the balance of the purchase price has not been paid. The sale agreement provides that if the purchaser defaulted in payment, the sale agreement may be terminated by Haritopoulos at its option. Haritopoulos has made no attempt to terminate the sale agreement.
277 I am also satisfied to the requisite standard, that the sale agreement was never intended to confer enforceable rights, or to impose enforceable obligations, on either party. Rather, in my opinion, it is the product of a collusive device whereby Mr Charitopoulos sought to retain the vehicles and carry on business from premises he controlled, with the assistance of Mr Dobric. I am satisfied that Mr Charitopoulos orchestrated, and gave instructions for, the sale agreement. The vehicles were initially registered in the name of Quantum Industries and were registered in the name of Booze2U only on 14 August 2006. Mr Dobric currently pays no rent and has never paid any rent for the premises owned by a company controlled by Mr Charitopoulos. He had no input into the sale agreement of the selection of assets at auction. I am satisfied that he had no plans, means or financial arrangements to fund or establish an independent business. He was Haritopoulos' authorised agent for the purposes of re-entry and distraint. I am satisfied that he depends on, and is associated with, Ms and Mr Charitopoulos to run the business. He has never been requested to return the vans or any other equipment.
278 In my opinion, the purported sale to Booze2U represents no real impediment to Mr Charitopoulos' or Haritopoulos' possession or control of the relevant vehicles and assets and their ability to deliver them to the receivers in conformity with order 1 of the 5 May 2006 order.
Whether 5 May 2006 order served
Service on 2 May 2006
279 By affidavit sworn 12 May 2006, Mr William Eglinton, a process server and security investigator, deposed that at approximately 2.55pm, he served the 5 May 2006 order on Haritopoulos at its registered office at 203-205 Hanson Road, Athol Park.
280 Mr Eglinton also deposed that on 9 May 2006, at approximately 3.15pm, he personally served Mr Pantelis Charitopoulos with the 5 May 2006 order.
281 Mr Eglinton was an impressive, credible witness. He was consistent, clear, acknowledged adverse points reasonably and gave a full and measured account. He was professional, careful and deliberate.
282 In cross-examination, Mr Eglinton said he was first instructed on 4 May 2006 to serve the order of Whelan J made 3 May 2006 ("the 3 May 2006 order"). He was unable to serve the 3 May 2006 order.
283 In addition to serving the 3 May 2006 order, he was instructed by the receivers to locate the removed vehicles and try to recover them. He located some of the vehicles at the Wingfield Street premises through his contacts in Adelaide.
284 On 5 May 2006, he attended the Wingfield Street premises, accompanied by Mr Codling and a policeman and recovered some vehicles.
285 After lunch on 5 May 2006, he was instructed to serve the 5 May 2006 order on the defendants. He served Haritopoulos on 5 May 2006, but could not serve Mr Charitopoulos on 6, 7 or 8 May 2006, despite attempts to locate him. Mr Heidt, a manager employed by the receivers, informed Mr Eglinton that Mr Charitopoulos' residential address was 39 Elderslie Avenue, Fitzroy, in South Australia. An industry colleague informed Mr Eglinton that Mr Charitopoulos had a characteristic facial scar running down the right side of his face.
286 Mr Eglinton "staked out" Mr Charitopoulos' residential address on 8 May 2006. He attended the address on 8 May 2006, but no lights were on and no-one answered the door when he knocked. He conducted surveillance. He had not, at that stage, seen Mr Charitopoulos personally. He was still unsure, at that point, where Mr Charitopoulos conducted his business.
287 By the morning of 9 May 2006, Mr Eglinton, from his observations and enquiries, realised that Mr Charitopoulos' business was being conducted from the Harrison Road premises.
288 Early on the morning of 9 May 2006, he observed a silver Holden Statesman with the number plate "ARCHIE", parked outside Mr Charitopoulos' home at 39 Elderslie Avenue, Fitzroy. Later that day, he observed the same vehicle in Harrison Road, travelling from the direction of the Harrison Road premises. He deposed that he could not see the driver, as the windows of the car were tinted, but he believed that it might be driven by Mr Charitopoulos, although the driver did not precisely match his physical description. At the hearing, Mr Eglinton stated that he could not see inside the car and could not see the driver clearly. He believed that the vehicle might be heading to the Epworth Building in Pirie Street in the Adelaide CBD which was owned by Mr Charitopoulos, who had an office there. The Epworth Building is situated on Pirie Street, directly across from the offices of the receivers, Sims Partners. Mr Eglinton knew that Mr Heidt, a manager at Sims Partners, had seen Mr Charitopoulos before. He therefore telephoned Mr Heidt on his mobile telephone. He informed him that he suspected that Mr Charitopoulos was heading for the Epworth Building in a Holden Statesman vehicle which Mr Eglinton was currently following. He asked Mr Heidt to come down from his offices to identify the driver of the Holden Statesman (in the event that the car arrived at the Epworth Building). According to Mr Eglinton, Mr Heidt telephoned Mr Eglinton back about four minutes later and told him that he had just observed Mr Charitopoulos standing outside the Epworth Building on Pirie Street, talking on his mobile telephone and wearing a suit jacket, with a white shirt and no tie. If Mr Heidt's identification were correct, the driver of the Holden Statesman (which Mr Eglinton was still following), could not be Mr Charitopoulos.
289 Mr Heidt was cross-examined. He was a clear, impressive and credible witness.
290 Mr Heidt testified that he first met Mr Charitopoulos when the receivers were appointed on 4 August 2005. He had had many face-to-face dealings with Mr Charitopoulos. He confirmed that on 9 May 2006, he received a telephone call from Mr Eglinton at about 3.00pm, in which Mr Eglinton told him that he was following a Holden Statesman vehicle with the number plate "ARCHIE" which he suspected was being driven by Mr Charitopoulos. Mr Heidt then went downstairs with his mobile telephone.
291 His evidence was that he saw a man whom he recognised as Mr Charitopoulos standing on the other side of the road, wearing a white shirt, jacket, dark trousers and no tie. The person was standing in the laneway within one or two metres of the kerbside. He was talking on a mobile telephone and was facing straight on to Pirie Street. Mr Heidt conceded that he saw the man whom he identified as Mr Charitopoulos for only a short time.
292 The Epworth Building, on one side of the laneway, is a multistorey building. The building on the other side of the laneway is over ten storeys, but is set some way back from Pirie Street. Mr Heidt could not recall where the sun was at that time and he could not recall any shadow. According to Mr Heidt, Pirie Street was not particularly busy at the time.
293 Mr Heidt testified that he then went upstairs and telephoned Mr Eglinton to inform him of what he had observed. Mr Eglinton did not say where his car was at that point, but Mr Heidt believed that Mr Eglinton was still travelling in his car and had not yet served anyone. He described the dress of the man he believed to be Mr Charitopoulos, and told Mr Eglinton that he was talking on a mobile telephone.
294 Mr Heidt denied that he was unsure that the man he observed was Mr Charitopoulos. He stated: "I'm certain that it was Pantelis Charitopoulos". He was "quite certain", because he could plainly see Pantelis Charitopoulos' face.
295 At trial, Mr Heidt initially stated that he had not met Mr Archie Koimtsidis prior to 9 May 2006, although he had heard that he was a friend of Mr Charitopoulos. He corrected himself in the course of giving evidence and recalled that he had been introduced to Mr Koimtsidis at the auction, although they probably only said "hello" to each other. He conceded that his introduction to Mr Koimtsidis had initially escaped his memory.
296 He recalled that Mr Koimtsidis was of medium height, olive complexion and "filled out" in stature. It was put to Mr Heidt that it was possible that the person he saw on 9 May 2006 was Mr Koimtsidis, not Mr Charitopoulos. He stated, "No, I could see it was Pantelis Charitopoulos".
297 I do not consider that Mr Heidt's initial failure to recall being introduced to Mr Koimtsidis at the auction undermined the credibility of his evidence and, in particular, his clear identification of Mr Charitopoulos, who had an identifying facial scar, and with whom he was familiar.
298 After his second telephone conversation with Mr Heidt, Mr Eglinton continued to follow the Holden Statesman, which had not yet reached the Epworth building, because he believed it was likely to be travelling there. At approximately 3.00pm, he observed the Holden Statesman pull over into a laneway near Pirie Street, near a man who wore clothing which matched the description given by Mr Heidt and who was talking on a mobile telephone. The driver of the Holden Statesman had opened the door of the car, but did not get out, and was not clearly visible. Mr Eglinton testified that he saw the driver and the man standing in Pirie Street acknowledge each other.
299 Mr Eglinton got out of his own car and double parked it on the other side of the road. He saw that the man standing in Pirie Street had a scar on the right side of his face and wore a suit, white shirt and no tie. He approached the man and asked, "Are you Pantelis Charitopoulos?" The man replied, "No, I'm not". Mr Eglinton said, "I think that you are". According to Mr Eglinton, the man refused to take the 5 May 2006 order, so Mr Eglinton left it at his feet and said, "Pantelis, you've been served with court orders".
300 Mr Eglinton agreed that Pirie Street was busy at the time and that his contact with the person served was short. He estimated that the contact lasted less than 30 seconds, although he had a short conversation with the man. However, the person was facing him directly and he got a good look at him.
301 On the morning of 10 May 2006, Mr Eglinton visited the offices of Mason Gray Strange after having repossessed a van which he had identified as having been removed from the Athol Park premises. The van, prior to its repossession, was being used to deliver food that day. Mr Eglinton testified that he observed the same person whom he had served the day before arrive at the offices of Mason Gray Strange. He then had a conversation with that person about the vehicle removed from the Athol Park premises on 2 May 2006, which Mr Eglinton had repossessed that morning. The person sought to negotiate the use of the van for business that day. After the conversation, Mr Eglinton asked, "Are you Pantelis Charitopoulos today, are you?" Mr Eglinton testified that the person replied, "Yes, and I was Pantelis yesterday". Mr Eglinton testified that he did not discuss the incident of service on the previous day. He took the response to his question as an implicit acknowledgement that the man was Pantelis Charitopoulos and that he had been served on the previous day. Mr Charitopoulos' evidence was, however, that he replied "I am Pantelis Charitopoulos every day".
302 It was put to Mr Eglinton in cross-examination that he did not specifically dispute Mr Charitopoulos' different version of his response in the affidavit sworn 4 October 2006, although he disputed other matters. He could not explain the omission, but reiterated his own version of events. In my view, nothing hinges on the omission. Mr Eglinton testified that he was sure that the person he spoke to on 10 May 2006 was the same person whom he had served on 9 May 2006. He asserted that it was easy to recognise Mr Charitopoulos because of the scar on his face.
303 Mr Eglinton exhibited to his affidavit a newspaper clipping from The Advertiser, containing a photograph of two persons identified as Pantelis Charitopoulos and Marina Charitopoulos. He deposed that the person identified in the clipping as Pantelis Charitopoulos is the same person whom he served with the 5 May 2006 order on 9 May 2006 and who confirmed to Mr Eglinton on 10 May 2006 that he was Pantelis Charitopoulos.
304 Mr Codling, of Mason Gray Strange, confirmed that on the morning of 10 May 2006, Mr Eglinton arrived at the offices of Mason Gray Strange, after repossessing a van identified as having been removed from the Athol Park premises. Mr Codling stated that the van driver, who was distressed, had sought to tender a cheque in order to retain the vehicle. He refused to accept the cheque, because he required payment of the entire outstanding account.
305 Mr Codling also testified that, at a certain point, Marina Charitopoulos, Mr Charitopoulos and Mr Dobric arrived at the reception area of Mason Gray Strange. He stated that Messrs Eglinton, Charitopoulos and Dobric then accompanied him into his office. According to Mr Codling, Mr Charitopoulos was unhappy about the repossession of the van and requested that it remain in his or Mr Dobric's possession. Mr Codling then telephoned Mr Heidt to seek his consent for Mr Charitopoulos to retain the van, which was not granted.
306 Mr Codling testified that he overheard the exchange between Mr Eglinton and Mr Charitopoulos. He deposed in his affidavit, and testified at the hearing, that in response to Mr Eglinton's question "are you Pantelis Charitopoulos today?" Mr Charitopoulos responded with words to the effect of "I'm Pantelis today. I was Pantelis yesterday".
307 He conceded that he could not recall the precise words, but despite rigorous cross-examination, consistently denied that Mr Charitopoulos replied "I am Pantelis Charitopoulos every day". Mr Codling explained that Mr Charitopoulos' reply stuck in his mind, because prior to Mr Charitopoulos' arrival, Mr Codling and Mr Eglinton had been discussing the service on Mr Charitopoulos on the previous day.
308 Mr Codling presented as a clear, consistent and credible witness. It was suggested that he may have discussed his evidence with Mr Eglinton, that his testimony was influenced by the discussion, that there was inconsistency with his affidavit and that he lacked a clear recollection. I am satisfied, however, that his account was truthful and convincing.
309 Mr Charitopoulos denied that he was served with the 5 May 2006 order on 9 May 2006 or, indeed, at any time thereafter. He contended that his associate, Mr Koimtsidis, was the person standing on Pirie Street on the afternoon of 9 May 2006, who was observed by Mr Heidt and served by Mr Eglinton.
310 In his sworn affidavit, Mr Charitopoulos deposed that Mr Koimtsidis was a tenant of the Epworth Building at 33 Pirie Street, Adelaide, whom he had known "in business and socially for a number of years". He deposed that on the Friday preceding 9 May 2006, Mr Koimtsidis had lent him his Holden Statesman vehicle with the number plate "ARCHIE", because Mr Charitopoulos was "having problems with his own vehicle."
311 Mr Charitopoulos, at the outset of his testimony at the hearing, corrected the assertion in his affidavit and stated that he had borrowed Mr Koimtsidis' car because he felt uncomfortable driving his own car (a Mercedes Benz) when "I owe a lot of people in Adelaide a lot of money, in excess of $3million ... a lot of small people". At the hearing, Mr McNamara had earlier testified that he had advised Mr Charitopoulos (who turned up at the auction in a Porsche and who had also been driving a Mercedes Benz and Bentley) not to drive "those types of cars given the circumstances". Mr Charitopoulos stated that it occurred to him only the day before giving evidence that the assertion in the affidavit about having problems with the vehicle was untrue, or might be misunderstood.
312 He was evasive when questioned about whether he had discussed the issue with anyone.
313 Mr Charitopoulos, in his affidavit, testified that he was not wearing a coat or suit jacket on the afternoon of 9 May 2006. Mr McNamara had been unable to recall whether Mr Charitopoulos was wearing a jacket when he visited McNamara's office shortly after the incident on Pirie Street. At the outset of giving evidence, Mr Charitopoulos corrected his affidavit to state that he was "not sure about the jacket, whether I was wearing one or not".
314 Mr Charitopoulos, in his affidavit, deposed that he was the driver of the Holden Statesman on the afternoon of 9 May 2006, and was travelling to the Epworth Building to pick up Mr Koimtsidis, who was waiting for him. He deposed that on arrival, he pulled up in the laneway, parked the car and observed Mr Koimtsidis standing two to three metres away from him near the T-junction of the laneway and Pirie Street. Mr Charitopoulos deposed that Mr Koimtsidis was talking on his mobile telephone at the time. Mr Charitopoulos deposed that he got out of the car and observed a person go to Mr Koimtsidis, speak to him, and drop some papers at his feet after which Mr Charitopoulos "observed Archie pick up the papers and take them into the Epworth Building".
315 At the hearing, Mr Charitopoulos testified that the events of 9 May 2006 were "very clear" to him. He stated that when he drove to the Epworth Building he was "picking up Archie I think. I think we were going to do something or vice versa. I don't recall this second why, but it was something to do with Archie ... It was lunch or something else to do with Archie."
316 He conceded that he did not remember what he and Mr Koimtsidis did after the incident. He then stated that although he did not remember exactly, he believed they went to lunch.
317 He conceded that he could not remember why it was necessary for him to get out of the parked Holden Statesman when stopping to pick up Mr Koimtsidis. He testified that he turned the car into the laneway. He parked the car four or five metres from where Mr Koimtsidis was standing. He believed that he left the engine running and got out of the car without closing the door. He suggested that he may have done that so that Mr Koimtsidis could drive the vehicle.
318 At the hearing, Mr Charitopoulos stated that the afternoon of 9 May 2006 was the first occasion on which he saw Mr Eglinton, but that he recognised him the next morning as the person who had mistakenly served Mr Koimtsidis on the previous afternoon.
319 Mr Koimtsidis, in an affidavit sworn 8 August 2006, deposed that he had known Mr Charitopoulos for at least three years and that he lent Mr Charitopoulos the Holden Statesman on about Friday, 5 May 2006 "as he was having problems with his own vehicle" and at 2.45pm on 9 May 2006 Mr Charitopoulos contacted him to return the vehicle to him. Mr Koimtsidis deposed that on 9 May 2006, he was wearing a white shirt and sports trousers and was not wearing a coat. He came down from his office to Pirie Street and stood at its junction with the private laneway that runs along the side of the Epworth Building in order to await Mr Charitopoulos' arrival. He stood there talking on his mobile telephone and, while doing so, noticed Mr Charitopoulos drive past him and park the Holden Statesman in the laneway.
320 Mr Koimtsidis deposed that Mr Charitopoulos "stayed in and near the Statesman". Mr Koimtsidis deposed that he continued talking on his mobile telephone with his back to Pirie Street facing a westerly direction when a man came up and started talking to him, but he continued with the mobile telephone conversation. When he turned around he "found a bundle of documents at my feet. They had been dropped by the man."
321 Mr Koimtsidis deposed that "Pantelis was not near me at the time the documents were served on me but was further down the laneway with the Statesman."
322 Mr Koimtsidis deposed that he picked the documents up, saw that they were legal documents and took them straight into the lawyers at the Epworth Building "and asked them what I should do with the documents as they did not belong to me".
323 In his affidavit sworn 30 August 2006, Mr Charitopoulos deposed that Mr Koimtsidis was a person with whom he had had social and business contacts for some years. The affidavit provided no further details about the relationship with Mr Koimtsidis.
324 Mr McNamara deposed that he prepared the affidavit of Mr Koimtsidis sworn 8 August 2006. He deposed that on or about 7 September 2006, he was advised by Mr Davies of the defendants' Melbourne solicitors, that a notice of cross-examination had been served in relation to Mr Koimtsidis. He advised Mr Koimtsidis of that.
325 Mr Koimtsidis was interstate until 12 September 2006, but Mr McNamara met him on 14 September 2006 and told him that he would be required in Melbourne to give evidence at the hearing of the contempt summons. Although Mr Koimtsidis initially advised that he would be available, on 21 September 2006, he told Mr McNamara that he had to travel to Ghana on urgent business in relation to precious metal transactions for his company.
326 Mr McNamara deposed that Mr Koimtsidis, when reminded that he was required to give evidence in Melbourne, stated that he did not think that he would be back in Australia by the required date and that there was nothing he could do about it, as the business he was transacting in Ghana was too important to his company.
327 Mr McNamara further deposed "Our firm does not act for Mr Koimtsidis' company and I do not know the details of the business the company or Mr Koimtsidis are involved in, in Ghana. I do not have any contact details for Mr Koimtsidis in Ghana".
328 Mr Koimtsidis did not present for cross-examination at the hearing of the contempt summons or at any time thereafter, although on 24 October 2006 at the conclusion of final submissions, at the defendants' request I fixed a date, 8 November 2006, said to be convenient for Mr Koimtsidis, to provide a further opportunity for his attendance. Mr Koimtsidis failed to appear on 8 November 2006. On that day, the Court reserved its decision.
329 Although it could reasonably be inferred from the affidavit of Mr Charitopoulos sworn 4 September 2006 and the affidavit of Mr McNamara that Mr Koimtsidis' business interests were independent of Mr Charitopoulos and that he could not be contacted while in Ghana, at the hearing, Mr Charitopoulos acknowledged in cross-examination that he was in regular telephone contact with Mr Koimtsidis in Ghana and was a partner of Mr Koimtsidis in a mining business in Ghana, which had been on foot for a number of years. When asked if he had informed his lawyers of the partnership, Mr Charitopoulos replied: "Maybe briefly. I haven't really made a point about it. I can't - I can't be precise, I don't know. I may have. I may have. I don't know, I don't see the relevance".
330 On 14 December 2006, the parties were advised that the Court was ready to hand down reasons for judgment on 15 December 2006.
331 On 15 December 2006, the defendants sought that the Court defer handing down its reasons, in order to afford yet a further opportunity for Mr Koimtsidis to attend to give evidence. The affidavit of Mr Charitopoulos sworn 14 December 2006 in support of that application deposed that Mr Koimtsidis was expected to return to Australia in the week prior to Christmas and would be available to give evidence. Senior counsel for the plaintiffs was, however, unavailable during that week.
332 On 15 December 2006, I deferred handing down reasons for judgment and fixed the date of 8 February 2007 in order to afford a final opportunity for Mr Koimtsidis to give evidence. I ordered the defendants to file and serve an affidavit to apprise the Court of the arrangements for Mr Koimtsidis' attendance by 1 February 2007. The defendants did not comply with that order. On 8 February 2007, Mr Koimtsidis did not attend for cross-examination. No explanation for his non-attendance was offered.
333 Given the repeated failure of Mr Koimtsidis to attend for cross-examination, despite the fixing of convenient alternative dates, and the absence of any excuse or explanation for his non-attendance, despite his close association with Mr Charitopoulos (which was not frankly acknowledged until a late stage), I place no weight on the affidavit of Mr Koimtsidis.
334 The affidavit of Mr Charitopoulos, sworn 30 August 2006, and the affidavit of Mr Koimtsidis, sworn 8 August 2006, did not indicate that Mr Charitopoulos accompanied Mr Koimtsidis into McNamara Lawyers to obtain advice. Mr Charitopoulos deposed that he observed Mr Koimtsidis go into the Epworth Building. That statement conveyed the impression that he did not accompany Mr Koimtsidis into the Epworth Building.
335 The affidavit of Mr McNamara sworn 30 October 2006, however, stated that he was, called to reception at his office on 9 May 2006 to speak to a person who "had just been served with documents". He attended reception and saw Mr Koimtsidis, who was at the reception desk, while Mr Charitopoulos was in the reception area.
336 Mr McNamara deposed that Mr Koimtsidis advised him that someone had just thrown some documents at his feet while he was standing in the laneway next to the Epworth Building, which he had picked up and noted that they were Court documents apparently related to Pantelis Charitopoulos.
337 Mr McNamara deposed that he had been retained by the defendants, including Mr Charitopoulos. He deposed that he told Mr Koimtsidis that he did not want the documents and that Mr Koimtsidis should immediately write down what had happened, look at the documents and return them to the court or to the firm of solicitors that had prepared them. Mr Koimtsidis wrote a note which stated: