Pleash v Bezel Pty Ltd [2024] FCA 1440 | Case summary

Pleash v Bezel Pty Ltd [2024] FCA 1440 | Case summary | Zoe

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INTRODUCTION 1 The applicants, Etarip Pty Ltd (in liquidation) and its liquidator, Blair Alexander Pleash, seek to recover two loans which Etarip made to Bezel Pty Ltd and MP01 Pty Ltd. Mr Pleash was appointed as liquidator of Etarip upon its winding up on 19 February 2020. Bezel and MP01 are related companies of Etarip. They shared the same sole director and shareholder, Neville Martin Dunne. The existence of the Bezel Loan and the MP01 Loan, that demand has been made for repayment, and that no repayment has been made, is admitted. 2 MP01 was the only respondent which appeared and defended the proceeding. 3 Bezel and MP01 originally shared legal representation. They filed a joint concise response which raised two substantive defences to the debt claims, based respectively on forgiveness of the relevant debts and estoppel. The defences predicated on the forgiveness of the debts arising under the Bezel and MP01 Loans are based on two documents, styled as deeds of forgiveness, each dated 14 February 2018, the Bezel Forgiveness Deed and the MP01 Forgiveness Deed respectively. 4 After the joint concise statement was filed and served, Bezel and MP01 ceased to be commonly represented. Bezel then ceased to participate in the proceeding. Bezel did not file or serve evidence. It did not appear at the hearing. Upon being satisfied that Bezel was on notice of the hearing, I indicated that I would make an order that the proceeding continue generally against it in its absence pursuant to r 30.21(b) of the Federal Court Rules 2011 (Cth). Although Bezel did not appear at the hearing, aspects of the evidence otherwise led in the proceeding bear upon the defences raised by Bezel in the joint concise response. Accordingly, to the extent that is so, I will consider that evidence in determining whether the applicants have established their claim against Bezel. 5 MP01 continued to be represented and defend this proceeding. MP01 subsequently filed an amended concise response and a cross-claim. By its amended response, MP01 added to its existing defences by alleging, in the alternative, that the applicants lacked standing to recover the loans and/or that Etarip has waived its right to recover the loans. 6 MP01's defence based on an allegation that Etarip lacked standing is predicated on Bezel having replaced Etarip as trustee of the Etarip Trust (established by the Etarip Discretionary Trust Deed executed on or about 5 August 2013 and discussed in further detail below). MP01 alleges that the MP01 Loan was made by Etarip in its capacity as trustee of the Etarip Trust. Accordingly, the debt chose was the property of the Etarip Trust. Further, that Etarip was replaced as trustee of the Etarip Trust by Bezel pursuant to the execution of a "Deed of variation of discretionary trust" between Etarip, Bezel and Mr Dunne (Etarip Variation Deed) which on its face is dated 21 April 2019. Accordingly, Etarip, having been replaced as trustee, lacked standing to recover the debt, which is the property of the Etarip Trust. 7 MP01's defence which challenges Etarip's right to recover the loans based on the debt having been forgiven or otherwise waived, is predicated on the MP01 Forgiveness Deed and the circumstances in which it was executed. MP01 contends that upon the proper construction of the MP01 Forgiveness Deed, the MP01 debt has been forgiven. Alternatively, MP01 seeks rectification of the MP01 Forgiveness Deed with a view to effecting that outcome. MP01 further asserts that by reason of the circumstances in which the MP01 Forgiveness Deed came to be executed, Etarip has waived any entitlement to recover the MP01 debt. 8 To counter the allegation that Etarip lacked standing because the debt choses were trust property, the applicants extended their claim for relief by seeking to have Mr Pleash appointed as a receiver of the two debt choses. In further response to MP01's defence based on an allegation that the applicants lacked standing, the applicants contend that certain of the documents on which MP01 relies should be declared void pursuant to s 228 of the Property Law Act 1974 (Qld) as an alienation of property with the intent to defraud creditors. 9 There is another phalanx to this proceeding which is presently stayed. The applicants bring alternative claims in which they seek to recover the payments made by Etarip to Bezel and MP01 as voidable preferences and to recover damages for breach of director's duties against Mr Dunne. That part of the proceeding which is brought in the alternative to the debt claims was stayed by consent on 13 May 2022 pending the determination of proceedings in the Supreme Court of Queensland or further order of the Court. I will refer to the proceeding in the Supreme Court of Queensland as the Queensland Proceeding or the NGI Proceeding. 10 On the last day of the hearing, the applicants informed the Court that judgment had been delivered in the Queensland Proceeding on 1 December 2023: NGI Savannah Living Communities Pty Ltd v Dunne & Ors [2023] QSC 273 (Sullivan J) (NGI v Dunne). 11 Mr Dunne and MP01 were the defendants in that proceeding. They had common legal representation which differed from MP01's representation in the present proceeding. 12 Etarip was also a defendant in the Queensland Proceeding. NGI Savannah Living Communities Pty Ltd caused default judgment to be entered against Etarip on 27 March 2019. The default judgment entered against Etarip informs the proof of debt lodged by NGI in the liquidation of Etarip. 13 Mr Dunne was declared bankrupt on Friday, 17 March 2023 very shortly before the commencement of the hearing of the Queensland Proceeding on Monday, 20 March 2023: NGI v Dunne at [3],[8]. This raised several jurisdictional issues which were considered by Sullivan J in NGI v Dunne commencing at [232]. In the result, Sullivan J found that some of the claims pleaded by NGI against Mr Dunne were provable debts in his bankruptcy under s 82 of the Bankruptcy Act 1966 (Cth) and were therefore mandatorily stayed unless leave to proceed was obtained from this Court. NGI did not obtain such leave and does not appear to have taken steps to do so. For this reason, only those claims which Sullivan J was satisfied were not provable debts in Mr Dunne's bankruptcy, namely the claims for misleading and deceptive conduct which were not based substantially on the same allegations as the claims for provable debts were the subject of the orders made in NGI v Dunne. Mr Dunne was found to have engaged in misleading and deceptive conduct for which he was liable to NGI in the sum of $2,278,293.38 plus interest of $697,969.09 pursuant to s 236 of the Australian Consumer Law (Qld) (ACLQ) and s 60 of the Civil Liability Act 2003 (Qld). MP01 was ordered to pay damages in the sum of $237,500 plus interest of $95,608.69 to NGI for its involvement in Mr Dunne's misleading and deceptive conduct. The remaining claims in the Queensland Proceeding appear to continue to be stayed. 14 The applicants have not applied to lift the stay of their alternative claims in this proceeding but have foreshadowed such an application as a potentiality. 15 Notwithstanding that MP01 was represented in this proceeding, the Court has not been informed of whether there is any appeal or intention to appeal on foot in respect of the judgment given in the Queensland Proceeding. It will be necessary to return to the subject matter of the Queensland Proceeding below. 16 On 24 October 2023, on the application of the applicants, I ordered that Christopher Baskerville in his capacity as the trustee in bankruptcy for Mr Dunne be joined to this proceeding as the fourth respondent. Mr Baskerville neither opposed nor consented to his joinder in his capacity as trustee of Mr Dunne's estate in bankruptcy and MP01 did not oppose his joinder. 17 Mr Baskerville has not lodged an address for service. He has not taken any active steps in the proceeding.

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EVIDENCE 18 Mr Pleash was called for the applicants. The applicants relied on two affidavits of Mr Pleash affirmed on 24 February 2022 and 5 September 2023 and the documents exhibited thereto. When Mr Pleash gave his oral evidence, he swore an oath and adopted the contents of his affidavits. He was cross-examined. 19 MP01 submits that "although not an impressive witness, Mr Pleash's evidence was largely a vehicle for tendering documents which speak for themselves and thus no credit issues arise." For present purposes, it suffices to note that MP01 does not directly challenge Mr Pleash's credit. Mr Pleash was prepared to make concessions where appropriate in the course of his cross-examination. 20 The applicants also relied on an affidavit of Emma Theresa Boyce affirmed on 13 February 2024 in support of its application that the proceeding continue generally against Bezel in its absence. 21 MP01 relied on affidavit evidence from Mr Dunne and from its solicitor, Jay Jih-Hui Tseng. Mr Tseng was not required for cross-examination. On 24 October 2023, I granted leave to MP01 to rely upon paragraphs 1 to 12, 16 and 18 to 25 of Mr Tseng's affidavit affirmed on 16 October 2023 and pages 1 to 63 and 442 to 572 of exhibit JJT-7 thereto, subject to any final determination as to relevance. Mr Tseng's evidence concerns various ASIC company searches of Etarip, MP01 and Bezel; documents filed and judgments entered in the Queensland Proceeding; and reports prepared in relation to the liquidation of Etarip. I was subsequently satisfied as the hearing unfolded that Mr Tseng's evidence was relevant. Accordingly, it will be admitted. 22 As mentioned, Mr Dunne was called by MP01 as a witness. Although this proceeding includes a claim against Mr Dunne for damages pursuant to s 1317 of the Corporations Act 2001 (Cth), that part of the proceeding is presently stayed as mentioned above. 23 MP01 read affidavits affirmed by Mr Dunne on 4 November 2022, 17 February 2023, 9 October 2023 and 17 October 2023. 24 On 13 July 2022, I made orders that any evidence filed or served by the respondents after 22 July 2022 could not be relied upon by the respondents without leave. On 7 June 2023, I made orders granting leave to MP01 to rely on the affidavits of Mr Dunne affirmed on 4 November 2022 and 17 February 2023. Mr Dunne's affidavit affirmed on 9 October 2023 was filed in accordance with orders made on 5 October 2023. Mr Dunne's affidavit affirmed on 17 October 2023 sets out clarifications to his affidavit affirmed on 9 October 2023. 25 Similarly to Mr Pleash, when Mr Dunne gave his oral evidence he took an oath and adopted the contents of his affidavits which he had affirmed on his oath. He was cross-examined. His cross-examination occupied most of the hearing. The applicants submit that: (1) Mr Dunne was a very unimpressive witness; (2) Mr Dunne was not a witness of truth; (3) Mr Dunne intentionally misrepresented matters concerning the financial affairs of Etarip to the liquidator; and (4) none of Mr Dunne's evidence should be accepted unless otherwise proved by contemporaneous records. 26 MP01 counters by submitting that while Mr Dunne was not a particularly persuasive witness, his evidence should not be rejected in its entirety because there are cogent explanations which explain the criticisms the applicants make of Mr Dunne's evidence. 27 It is necessary for me to assess and make findings in relation to Mr Dunne's credit and reliability and the extent to which I accept his evidence. I found Mr Dunne to be a singularly unimpressive witness. I have concluded that he was not a witness of truth. In his dealings with the liquidator, and in this Court, Mr Dunne intentionally misrepresented matters concerning the financial affairs and operation of Etarip. I do not accept his evidence except where it is supported by independent evidence or is otherwise against his interest. I have not reached this conclusion lightly. My reasons for reaching this conclusion are addressed below. 28 No evidence was filed or read by Bezel.

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The Etarip Trust 32 On or about 5 August 2013, Ms Wolff executed on behalf of Etarip the Etarip Discretionary Trust Deed (Etarip Trust Deed) which established the Etarip Trust. The copy of the Etarip Trust Deed in evidence is undated. Mr Dunne deposes to the deed being executed on or about 5 August 2013. The applicants do not contend to the contrary. Etarip was appointed as the trustee of the Etarip Trust. Mr Dunne was named as the Principal as defined in the Etarip Trust Deed. The Etarip Trust Deed creates two classes of beneficiary. Class A beneficiaries comprise the Principal and categories of person related to or through him or otherwise appointed as beneficiaries by him as Principal. Class B beneficiaries comprise companies in which any Class A beneficiary is a director or shareholder and their related bodies corporate, trusts in which any Class A beneficiary is a beneficiary and partnerships in which any Class A beneficiary is a partner. 33 The Etarip Trust Deed confers the power to lend and to borrow money on the trustee. Clause 9.6 provides as follows: (Power to Lend) to lend by way of a secured or unsecured loan or loans to any person firm or corporation which may be made at call or for a period of time, at a rate of interest or no interest and with or without security. 34 Clause 9.17 provides as follows: (Power to Borrow Money) to raise or borrow any money in any manner whatsoever either alone or jointly with another or others (including but without limitation by way of overdraft account, letters of credit or bill acceptance and discounting facility) from the Trustee in the personal capacity of the Trustee or from any other person or from any bank, financial institution, company or trust on terms and conditions and for purposes as the Trustee may in its absolute discretion decide and to secure the repayment of any moneys so raised or borrowed or raised by or for any other person including the Trustee in the personal capacity of the Trustee by way of mortgage, charge or other security of the whole or any part or parts of the Fund with or without power of sale and no mortgagee advancing money on any mortgage charge or other security purporting to be made under this power shall be concerned as to the necessity for any such borrowing or as to the purpose for which it is required or to see to the application thereof; 35 Pursuant to the Etarip Trust Deed, Etarip as trustee was required to maintain control over the books, records and financial information of the trust: cl 13.2. This is consistent with its equitable duty to account and statutory obligations as a corporate trustee under s 286 of the Corporations Act. There is no evidence of Etarip maintaining the usual records that one would expect a corporate trustee to maintain, including for example, copies of all resolutions of Etarip as trustee, detailed statements of assets and liabilities, tax returns and trust accounts. There is no record of any distributions made from the trust. I infer that Etarip did not maintain any trust records. This finding is significant when I come to consider whether in fact Etarip operated exclusively as trustee of the Etarip Trust, which is an essential integer of MP01's defence.

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Forgiveness Deeds 40 As mentioned, there are two deeds of debt forgiveness and release from contractual obligations in evidence, both dated on their face 14 February 2018: the Bezel Forgiveness Deed and the MP01 Forgiveness Deed (together, the Forgiveness Deeds). It will be necessary to consider the Forgiveness Deeds and Mr Dunne's evidence in relation to them in detail. At this stage, it suffices to set out in brief terms some of the essential findings about the Forgiveness Deeds. 41 The Forgiveness Deeds were drafted by Mr Dunne and executed by Mr Dunne on behalf of all parties to the deeds. 42 Mr Dunne's evidence in relation to the Forgiveness Deeds evolved over time. He has given evidence in respect of the Forgiveness Deeds on numerous occasions - in his affidavits of 17 February 2023, 5 October 2023 and 17 October 2023 (despite making no reference to the Forgiveness Deeds in his first affidavit of 4 November 2022) and in his cross-examination. Curiously his evidence on this topic evolved and improved over time. I will return to Mr Dunne's evidence on this topic below. 43 I now turn to the Forgiveness Deeds themselves. The Forgiveness Deeds have substantially similar if not identical operative clauses and recitals under the heading "background" and define the relevant parties as "creditor" and "debtor". The singular feature of both Forgiveness Deeds is that Etarip is defined as the debtor and not the creditor of Bezel and MP01. 44 On the face of each of the Forgiveness Deeds: (1) Etarip entered each in its capacity as trustee of the Etarip Trust; (2) Etarip is described as the debtor on the first page, the schedule to the deed and the execution blocks in each deed; (3) Bezel is described as the creditor in the Bezel Forgiveness Deed; (4) MP01 is described as the creditor in the MP01 Forgiveness Deed; (5) Each deed has been executed for Etarip by: (a) Mr Dunne in his capacity as the sole director and company secretary, purportedly in accordance with s 127 of the Corporations Act; and (b) Mr Dunne on behalf of the respective creditor with the notation "signed on behalf of Neville Dunne by its duly appointed agent…". 45 The effect of each of the Forgiveness Deeds on its face is to forgive loans owed by Etarip in its capacity as trustee of the debtor to MP01 and Bezel respectively. 46 As mentioned, in this proceeding, MP01 seeks to have the MP01 Forgiveness Deed either construed or rectified to accord with the construction posited by MP01 and what MP01 contends was the common intention of the parties, namely, to forgive the debt owed by MP01 to Etarip. 47 When active in this proceeding, Bezel sought to rely on the Bezel Forgiveness Deed. It did not seek relief in the form of rectification of the Bezel Forgiveness Deed.

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The Queensland Proceeding 49 On 16 October 2018, NGI commenced the Queensland Proceeding against eight defendants, including Mr Dunne, Etarip and MP01. Etarip did not file a defence in the Queensland Proceeding. Relevantly for the purpose of this proceeding, an issue in the NGI Proceeding was the receipt by Etarip of $1.1 million from Serge Battistin of Battistin Builders. The claim against Etarip in the Queensland Proceeding was framed as a claim for knowing assistance in and/or receipt from Mr Dunne's alleged breach of fiduciary duty and/or a claim for being knowingly concerned in or party to Mr Dunne's misleading and deceptive conduct in breach of s 18 of the ACLQ. The $1.1 million received by Etarip was paid into a bank account operated by Etarip on 14 July 2016. The evidence in the present proceeding concerning this payment is that it was paid into the CBA account ending 4154 on 14 July 2016 with a transaction description on the account statement of "WBC Credit". In Etarip transaction sheets, versions of which Mr Dunne prepared in the 2018 and 2020, he described this transaction as "consultancy fee Serg Battistin". I will return to the significance of the Etarip transaction sheets below. 50 In the Queensland Proceeding, Justice Sullivan made findings concerning the circumstances in which a larger payment was made to Battistin Builders by NGI and also in relation to the subsequent payment of the $1.1 million by Battistin Builders to Etarip: NGI v Dunne, [142]-[146]. The fact that Etarip received the $1.1 million payment from Battistin Builders is not in dispute in this proceeding. In this proceeding, Mr Dunne gives evidence as to the circumstances in which he says the $1.1 million payment was made to Etarip. In his evidence in this proceeding, Mr Dunne disputes that the facts relating to the $1.1 million payment were as found in the Queensland Proceeding. Although he was a defendant in the Queensland Proceeding, Mr Dunne did not give evidence in the Queensland Proceeding. As mentioned, he declared bankruptcy shortly before the hearing of the Queensland Proceeding commenced. 51 There was no determination on the merits of the claim against Etarip in the Queensland Proceeding because on 27 March 2019, judgment was entered against Etarip by default. The default judgment is relevantly in the following terms: [Etarip] not having filed a Notice of Intention to Defend, THE JUDGMENT OF THE COURT IS THAT: 1. ... 2. [Etarip] pay to the plaintiff damages to be assessed upon the plaintiff's Statement of Claim, and that the damages be assessed by the District Court. This judgment is conditional on the damages being assessed. 52 For present purposes, it suffices to observe that the allegations made against Etarip in the Queensland Proceeding concerned the $1.1 million payment to Etarip by Battistin Builders which formed the basis of NGI's claim for compensation in the form of damages against Etarip.

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NGI's statutory demand 58 Mr Pleash gives evidence that on 15 August 2019, after failing to receive payment of the judgment debt from Etarip, NGI issued a creditor's statutory demand for payment of the debt to Etarip. In his report to creditors dated 29 April 2020, Mr Pleash reported that: Ordinary Unsecured Creditors Upon appointment I received a copy of the Statutory Demand for Payment of Debt ("the Statutory Demand") filed against the Company by NGI Savannah Living Communities Pty Ltd ("NGI"), the petitioning creditor, on 15 August 2019. A signed affidavit to the Statutory Demand by Eleanor Goodridge, the Director of NGI, indicates that the Company was indebted to NGI for $1,100.000. I note that this outstanding NGI debt was also disclosed in the Director's ROCAP. 59 In describing what happened to the business of the company Mr Pleash noted that: The Director, Neville Martin Dunne, advised in the ROCAP that the Company was not carrying on a business prior to my appointment. The Director has advised that the Company had no employees. I understand that the Company was an asset holding Company. Upon appointment I was advised by the petitioning creditor's representative that the Company received proceeds from a loan in the amount of $1,100,000 from NGI, the petitioning creditor, from the purchase of the Mareeba residential retirement village owned by NGI. Eleanor Goodridge, the Director of NGI, indicated in NGI's Statutory Demand for Payment of Debt dated 15 August 2019 that payment of $1,100,000 towards the outstanding debt has been demanded since at least 16 October 2018. As noted previously, the ROCAP provided by the Director indicates that the Company transferred a $1,119,194.03 business loan to MB01, a related party, for the purchase and operation of The Coffee Club Bulimba, at an interest rate of 5% per annum. 60 Mr Pleash further stated in his report to creditors: Loaned Funds As detailed earlier in this report, I am conducting investigations in the $1,100,000 loaned by NGI and dispersed through various CBA bank accounts. As detailed earlier, the Director has provided documents indicating these funds were utilised to pay for the purchase and operation of The Coffee Club Bulimba by MB01. 61 The description of the debt in NGI's statutory demand is as follows: Description of the debt $1,100,000 (One Million One Hundred Thousand dollars) being funds received by Etarip Pty Ltd, being proceeds of a sham loan between Anthony Preston Pty Ltd and Battistin Builders Pty Ltd, payment of which was demanded on the 16th October, 2018, payment of which has not been received. 62 The ROCAP referred to in the Report to Creditors is the Report on Company Activities and Property which Mr Dunne completed in respect of Etarip and which is dated 6 March 2020 (the Etarip ROCAP). 63 Etarip did not obtain an order setting aside the statutory demand nor did it pay the sum claimed in the statutory demand. 64 On 20 November 2019, NGI filed an originating process in this Court seeking orders that Etarip be wound up on the ground of insolvency and, as mentioned, Mr Pleash deposes to his appointment on 19 February 2020 as the liquidator of Etarip. 65 On 10 July 2020, NGI lodged a proof of debt in the sum of $1.1 million in the liquidation of Etarip with the following details of the debt claimed: Date Consideration Amount (state how the debt arose) $ c MARCH 2019 Court Judgment 1,100,000

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Etarip Deed Poll 69 In evidence is a "Deed Poll of Amendment" of the Etarip Trust dated 12 July 2021 which on its face appears to have been entered into by Bezel with the consent of Mr Dunne (Etarip Deed Poll). The Etarip Deed Poll is signed by Mr Dunne as the sole director and secretary of Bezel and on his own behalf personally. By the Etarip Deed Poll, Bezel purportedly as trustee of the Etarip Trust appoints the vesting day of the Etarip Trust as 12 July 2021 and acknowledges that it wishes to distribute the entirety of the Trust Property of the Etarip Trust to Mr Dunne. 70 In his evidence under cross-examination, Mr Dunne gave inconsistent evidence on this topic. 71 He first asserted that he understood that the "vesting documents were done in 2019". There is no independent evidence to support Mr Dunne's assertion - the only document in evidence answering the description of a vesting document is the Etarip Deed Poll which is dated 12 July 2021. Mr Dunne said that he had given instructions for the vesting documents to be prepared in late 2018 and only became aware in or around May 2021 that the Etarip Trust had not vested. He says he then took steps to have the necessary documents drawn up. He said that he understood vesting the trust to mean to "Finish the trust up". 72 He next asserted relatively quickly after his first account that because he had caused Etarip to be deregistered in early October 2018, he understood that "when you deregister the trustee, the appointer agrees, then the trustee is vested" and he subsequently came to understand that that was incorrect. Despite his assertion, Etarip was not deregistered in October 2018. 73 Another implausible feature of Mr Dunne's evidence on this topic was that on his version of events, including the circumstances surrounding the Forgiveness Deeds, as at 2019, the Etarip Trust had no assets and no creditors. Accordingly, it was put to him that there would be no reason to change the identity of the trustee. Mr Dunne said that he caused Bezel to be appointed as trustee in Etarip's place because he "then made the decision that because the previous trustee was being deregistered, that it would be correct and proper to appoint a new trustee that was still registered, so I appointed Bezel". He then said that he appointed Bezel to vest the trust, but Etarip had not been deregistered and was capable of taking the steps necessary to cause the trust to vest. I will return to Mr Dunne's evidence on this topic below. 74 As with the purported change in the identity of the trustee of the Etarip Trust, there is no reference in the joint concise statement dated 23 December 2021 filed by Bezel and MP01 to property of the trust having vested in Mr Dunne on 12 July 2021. 75 Before turning to Bezel and MP01 it is convenient to first say a little more about Mr Dunne.

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Mr Dunne 76 Mr Dunne is about 57 years old. Mr Dunne has a bachelor's degree in business and deposes to having taken some law subjects as part of his business degree. 77 Mr Dunne described his occupation as "a consultant to a property development group". 78 Mr Dunne's primary residence is a residential property in Bulimba, Brisbane, Queensland. He lives with his adult son, Braddon Dunne, and current partner. He has lived at the Bulimba property since 2018. The registered owner of the property is MP01. Mr Dunne contends that MP01 holds the property as trustee of a trust known as the MP Trust. 79 Mr Dunne's residential address (or the property adjacent to it) is nominated as the place of business of many of the companies of which he is or was a director including Bezel, Lifestyle Resorts Pty Ltd, Resorts Lifestyle Developments Pty Ltd, Phantom Cigar Pty Ltd, Lifestyle Resorts 685 Pty Ltd, Lifestyle Resorts Albert Pty Ltd and MP01. The personal name searches that are in evidence for various forms of Mr Dunne's name and birthdate reveal that he has been director and secretary of many companies. Mr Dunne is, or has been, the director in many instances, the sole director, of over 40 companies (by my count on the evidence in these proceedings). Mr Dunne himself acknowledges that he has been a director of approximately 35 to 40 companies. 80 As mentioned above, Mr Dunne deposes to a number of health issues which he says occurred between October 2018 and May 2019. Much of this evidence was admitted subject to a s 136 limitation as to Mr Dunne's understanding of the nature of the medical issues he claims to have suffered, there being no medical evidence in support. It will be recalled that it was in mid-October 2018 that the Queensland Proceeding was commenced against Mr Dunne and others, including Etarip and MP01. It is unproductive to recite Mr Dunne's evidence regarding his health issues in full other than to observe that Mr Dunne describes himself as having a major heart operation in early May 2019. No independent supporting documentation was annexed to Mr Dunne's affidavit in support of his claimed medical issues. Mr Dunne repeated some of his health-related claims during his cross-examination. He also claimed to have suffered from brain seizures in 2020. He did not refer to suffering brain seizures in his affidavit evidence. Mr Dunne first referred to brain seizures when attempting to explain why he had difficulty recalling the answers he had given when examined as part of the liquidator's examinations in July 2020 and in recalling a balance sheet for Etarip which he prepared and sent to Mr Pleash in March 2020 which is described in further detail below. 81 As I have identified at paragraph 27 above, I consider it unsafe to place any reliance on Mr Dunne's evidence unless it is corroborated by contemporaneous documentation. Accordingly, I do not accept Mr Dunne's evidence in relation to the medical issues he claims to have experienced between October 2018 and May 2019 or his claim to have suffered brain seizures in 2020. Even if I were to accept that Mr Dunne had experienced some health issues, which I do not, I reject Mr Dunne's attempts to rely on his claimed medical issues to excuse the inconsistencies and implausibility inherent in many parts of his evidence. I do not accept that his asserted medical issues were what motivated him to take steps to remove Etarip as trustee of the Etarip Trust and cause Bezel to vest the Etarip Trust. The steps that Mr Dunne caused to be taken in relation to Etarip were undertaken in the shadow of the default judgment which had been obtained against it in the Queensland Proceeding. It was in Mr Dunne's interest for Etarip to appear to be an empty shell with no assets and no creditors. 82 Mr Dunne declared his bankruptcy on 17 March 2023. As mentioned earlier, Mr Dunne did this very shortly before the commencement of the hearing of the Queensland Proceeding.

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MB01 95 Mr Dunne was the sole director and shareholder of MB01 Pty Ltd. Shortly after Mr Dunne completed the Etarip ROCAP (which is dated 6 March 2020) Mr Dunne took steps to appoint a liquidator to MB01, with the requisite resolution being passed on 20 March 2020. 96 In Part B of the Etarip ROCAP, Mr Dunne identified MB01 as the only debtor of Etarip as at the date of its winding up. He identified a "business loan" from Etarip to MB01 in the amount of $1,119,194.03 for the purposes of "purchase and run coffee club". I note that this amount is very close to the amount that Etarip received into the 4154 account on 14 July 2016 with a transaction description on the account statement of "WBC Credit" and elsewhere described by Mr Dunne as "consultancy fee Serg Battistin". As mentioned, I am satisfied that Mr Dunne misrepresented the position in relation to the MB01 Loan for the purpose of obscuring the position in relation to the MP01 Loan. 97 In Part A of the Etarip ROCAP, in response to the question "is the Company owed money?", Mr Dunne selected the "yes" cross box and said that the relevant information in respect of the debt was disclosed in the "attached report sent to HC". "HC" is a reference to Hall Chadwick, the law firm acting for the liquidator and the "attached report" was a reference to an email from Mr Dunne to Mr Pleash dated 4 March 2020 which attached documents described as "etarip full transactions list and balance sheet" (the March 2020 email). The attached transaction lists record both "trans from etarip 154" and "trans to etarip 154". The attached Etarip Balance Sheet as at March 2020 (the 2020 Etarip Balance Sheet) was prepared by Mr Dunne. 98 In his report to the creditors of Etarip, Mr Pleash said that: …MB01 is a related party to the Company, as the sole Director and Shareholder of the Company, was also the sole director and shareholder of MB01. On 20 March 2020, the Director resolved in his capacity as the sole member that MB01 be wound up and that Mohammed Shahin Hussain of H&H Advisory ("H&H") be appointed as Liquidator of MB01. On 26 March 2020, I submitted a Proof of Debt ("POD") in the MB01 Liquidation for $1,119,194.03. As detailed in my previous Report, I previously sought the removal of Mr Hussain as Liquidator of H&H via a request for a meeting of creditors. To date, Mr Hussain has not convened a meeting of creditors as requested and has disputed the Company's claim in the Liquidation of MB01. On 16 June 2020, I received a copy of the Statutory Report to Creditors for MB01 ("Statutory Report"). A review of the Statutory Report identifies that it is not anticipated there will be a dividend to creditors of MB01, As detailed later in this report, a review of further information received by this office identifies that not all funds initially characterised by the Director as a loan to MB01 were actually transferred to MB01. It appears that a portion of these funds may have been transferred to another related party being MP01 Ply Ltd ("MP01"). A review of the further information provided identifies that a revised figure of approximately $609,209 may have been transferred to MB01. I am currently conducting further investigations to determine the actual quantum on funds transferred to MB01 Once these investigations are finalised I will revise the Proof of Debt lodged in the Liquidation of MB01. 99 The transfers from Etarip's bank account to MB01 were significantly less than $1,119,194.03, which was the amount that Mr Dunne represented to Mr Pleash had been lent by Etarip to MB01. Based on the evidence before me it appears that the total amount advanced by Etarip to MB01 and characterised as related to the coffee club business was close to $176,000. It is not necessary for the purpose of this proceeding to make a definitive finding on this issue. It is sufficient to note that the representation made by Mr Dunne to Mr Pleash was false in that it significantly overstated the MB01 Loan. Viewed in context, I am satisfied that Mr Dunne overstated the amount lent to MB01 as a means of obscuring the true position in relation to the MP01 Loan. At the time he did so, Mr Dunne was on the verge of appointing a liquidator to MB01 and given he was the sole director and shareholder would have known that MB01 was unlikely to provide any return to creditors.

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Mr Dunne's evidence 118 Mr Dunne was the key witness called by MP01. His evidence necessarily assumes prominence because he controlled all of the corporate actors involved in the transactions at the heart of this proceeding. 119 MP01 read four affidavits given by Mr Dunne. He was also cross-examined on an affidavit that he had affirmed in the Queensland Proceeding. 120 Mr Dunne was an unimpressive witness. His evidence was inconsistent and changeable. I have concluded that critical parts of his evidence were not reliable. He often dissembled. He frequently failed to answer direct questions notwithstanding that the questions were framed in clear terms. On occasion, his evidence was marked by long pauses. His reluctance to answer straightforward questions gave me the strong impression that he was buying time as he tried to ascertain where the cross-examiner's line of questioning was going and or trying to conjure a favourable answer. I found it necessary to repeatedly direct him to answer the question he had been asked. 121 When he perceived it to be beneficial to do so, Mr Dunne feigned not being familiar with various legal processes and concepts. A striking example of this was his purported lack of understanding as to the effect that his bankruptcy would have on his creditors' ability to recover debts owed to them from his assets. The context for Mr Dunne's evidence on this topic was as follows. Prior to his bankruptcy, Mr Dunne was the sole director and the sole or majority shareholder of a large number of companies, including MP01. Very shortly before he voluntarily entered bankruptcy on 17 March 2023, his 19-year-old son, a university student, took over as the sole director of many of these companies. Mr Dunne was vague about the details of his shareholding in the various companies with which he was associated and which he had controlled over a significant period of time. He asserted that he was not sure because "the accountants usually - well the lawyers set it up". 122 Mr Dunne did however admit that he transferred his shares in MP01 and resigned as a director of MP01 "because [he] was declaring bankruptcy". It was put to him that he had declared bankruptcy shortly before the commencement of the hearing of the Queensland Proceeding, resigned as the sole director of MP01 and transferred his shares in that company to avoid the house he lived in being used to repay his debts. He repeatedly avoided answering directly what had been put to him. He claimed to not really be familiar with the bankruptcy process because he himself had not been bankrupt before. When pressed for an answer, he paused for a significant period of time before smirking and saying that he found it difficult to answer yes or no. He ultimately agreed it was a possibility that he might suffer judgment against him in the Queensland Proceeding and that someone might seek to recover that judgment from his assets, including the shares he owned. His concession, such that it was, was faintly made - he said he "presumed" that was correct. This section of Mr Dunne's evidence underscored the lack of solemnity with which he approached giving evidence before the Court. 123 When Mr Dunne perceived it to be in his interest, he sought to present himself as a person without financial, legal or accounting knowledge, despite having studied a Bachelor of Business. When faced with contemporaneous records which did not accord with his current explanation of events, he feigned commercial naivety. 124 A striking example of this aspect of Mr Dunne's evidence is his evidence in relation to the 2020 Etarip Balance Sheet that he had prepared in 2020 and submitted to Mr Pleash. This evidence is addressed in detail below but for present purposes it is sufficient to note that the 2020 Etarip Balance Sheet included loans made by Etarip as extant loans as at 2020 which were purportedly forgiven by the Forgiveness Deeds which were executed by Mr Dunne in February 2018. Mr Dunne attempted to explain this by asserting that the 2020 Etarip Balance Sheet did not record the assets and liabilities of Etarip as at the date he prepared it but rather represented some of the loans made by Etarip on what he described as a "life to date" basis regardless of whether the loans were outstanding as at 2020. When pressed on the implausibility of this evidence, he repeatedly sought to take recourse in the fact that he was not an accountant. The information on which Mr Dunne was challenged concerning the composition of a company's balance sheet was basic in nature. I do not accept, given his asserted tertiary qualification and his experience over many years as the sole director of many private companies, that his answers on this topic were truthful. It was clear that in truth Mr Dunne was not prepared to disclose the extent of his understanding of financial concepts and corporate structures when giving his evidence. His feigned naivety was readily contrasted by reference to the fact that he had no difficulty in explaining his understanding of "four-times the risk-free rate of return" and his readiness to distinguish between the way in which he would ex post facto characterise payments from Etarip as disbursements and not dividends in aid of his contention that Etarip operated exclusively as trustee of the Etarip Trust. 125 A further illustration of Mr Dunne tailoring his evidence with an eye to MP01's defence in this proceeding is his evidence in relation to MP01's activities purportedly undertaken acting in its capacity as trustee of the MP Trust. In response to his assertion that MP01 acted as trustee of the MP Trust, he was confronted with his use of the MP01 bank account to pay personal expenses including, for example, a $36 food delivery. He was adamant in his response. He said that to the extent he spent MP01 company funds on his personal expenses, this was a "dividend or distribution". He then corrected himself to say that "I don't think it was a dividend. The company didn't itself operate. So it would have been a distribution from the trust". Similarly, his evidence on the critical issue of Etarip's activities purportedly as trustee was clearly reconstructed with an eye to MP01's defence of this proceeding. His assertions in the witness box as to Etarip acting as a trustee are to be contrasted with his responses in the ROCAP he completed and submitted to Mr Pleash. As the sole director of Etarip, he answered "No" to the question "Does the company hold property on trust?". Mr Dunne refused to accept in cross-examination that Etarip made at least one loan to Mr Dunne personally. When Mr Dunne was shown a transfer from Etarip's account ending in 4154 on 3 July 2017 which was described as "Transfer to CBA A/c NetBank loan nd", he attempted to explain this away as a trust distribution but accepted that there were no records of any distributions from the Etarip Trust. There are no resolutions by Mr Dunne as the director of the Etarip resolving to make distributions from the trust property. 126 Similarly, I interpolate to note that this was an occasion on which Mr Dunne demonstrated his understanding of commercial matters, distinguishing between the character of payments as to whether they were distributions or dividends by a process of reasoning about whether the company itself was undertaking activities in its own right. In his evidence, he sought to explain this by asserting that "Well, my understanding is the company didn't hold property on trust. It was trustee, but my understanding is that is two different things." He then speculated that although he could not recall what he had thought when he completed the ROCAP, he now wondered if there was a distinction between holding property "on trust" and holding property "in a trust". He did not offer any explanation as to what he understood the distinction to be. He said that he did not study trust law in his business studies. Mr Dunne's speculation on this topic was an attempt to muddy the waters in respect of his clear answer in the ROCAP that Etarip did not hold property on trust. That statement did not suit the position he wished to advance in his evidence in this proceeding. In giving his answers in the witness box it was clear that he was not constrained by answering the questions he was asked directly, and on many occasions, truthfully. 127 Another example of Mr Dunne's propensity to seek to draw distinctions of form over substance in order to avoid questions was in the context of his present role in relation to MP01. When asked about his involvement in providing instructions to MP01's solicitors in this proceeding after he ceased to be a director of MP01, he initially admitted that he provided instructions on behalf of MP01 both before and after his bankruptcy. Later, he sought to qualify his evidence by volunteering that he was "contracted to the group - the companies - to assist - the group of companies as a consultant" and he was "not acting as director" but "in a role of a consultant". His evidence made clear that he continued after his bankruptcy to be concerned in MP01's affairs and in liaising with MP01's solicitors in this proceeding notwithstanding that by his bankruptcy he was disqualified from acting as its director. Mr Dunne's evidence on this issue as a whole reflected that he was seeking to disguise the fact that he, as he initially in substance admitted, continued, and continues, to be the person who substantively controls MP01. 128 Mr Dunne's evidence was central to the critical issue of whether the MP01 Loan (and by extension the Bezel Loan) were advanced by Etarip in its capacity as trustee. On this issue, Mr Dunne gave evidence in relation to documents that he prepared at various points in time and submitted to Mr Pleash. The picture that emerges is that Mr Dunne's evidence cannot be relied on - it was riddled with irreconcilable inconsistencies and reveals his preparedness to craft documents to suit his interests and to change those documents to better suit his interests as his interests changed over time. 129 I accept that in most cases, contemporaneous documents furnish a generally reliable reference point from which to assess the reliability of the oral evidence: see ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; 388 ALR 128 at [25]-[29] (Bell P, as his Honour then was). In cases where there is inconsistency in the documents which strictly speaking are not contemporaneous to the critical matter in dispute but which were nonetheless prepared prior to the commencement of proceedings, the documentary evidence warrants careful scrutiny. In the present case, there is an absence of many of the contemporaneous documents that one would expect to see to support MP01's contention that the MP01 Loan was made by Etarip as trustee. The material inconsistencies in the documents created by Mr Dunne subsequent to the making of the MP01 Loan raise another flag. The variability and inconstancy in his oral evidence on many topics which I have addressed above is yet another flag. Taking all of these things into consideration, Mr Dunne's evidence that Etarip made the MP01 Loan (and by extension the Bezel Loan) as trustee for the Etarip Trust must be rejected. My conclusion is bolstered by my observation of Mr Dunne's demeanour in the witness box and the manner in which he gave his evidence. 130 I now turn to address the critical documentary evidence.

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Schedule of transactions 131 Mr Dunne was cross-examined on two documents styled as Etarip transactions schedules (or sheets) that he had prepared in 2018 and 2020 in which he purported to describe transactions on Etarip's bank account, relevantly the account ending 4154. It will be recalled that Etarip's bank statements are the only contemporaneous documents that record the payment of the advances that make up the Bezel and MP01 Loans. 132 The first document was annexed to an affidavit affirmed by Mr Dunne on 13 December 2018 in the Queensland Proceeding. Mr Dunne deposes that he inspected the bank records of the defendants to the Queensland Proceedings and created a schedule of all transactions with a value of $5,000 or more between 1 July 2016 and 2 November 2018 and annexed it to his affidavit. Relevantly, the annexure included schedules for each of MP01 and Etarip. Each schedule included four columns with titles of "Date", "Payment", "Receipt" and "Description". In respect of Etarip, the entries run from 14 July 2016 to 8 December 2017 for the Etarip account ending in 4154 and from 3 August 2016 to 8 December 2017 for the account ending in 0046. I will refer to this document as the 2018 Etarip Transaction Sheet. 133 The second document was attached to the March 2020 email. The covering email was in the following terms (as written): Hi Blair Please find attached etarip full transactions list and balance sheet. FYI • Etarip had no employees • No phone accounts • No lease agreements • no accounts payable or due and payable • yet to complete tax returns • intention was to complete tax returns in 2018 and then close company down when this dispute with Nora started from then it has been in limbo. • I don't have any other records for the company i.e. register I guess I can obtain that from ASIC if you wish me to do that let me know and I will chase ASIC for the company information. All the Best Nev Dunne 134 The reference to "Nora" is a reference to Eleanore "Nora" Goodridge, the sole director of NGI. 135 There are two attachments to this email. First, a schedule referred to as the "etarip full transaction list" in the covering email and secondly, a balance sheet for Etarip for 2020 (the 2020 Etarip Balance Sheet). 136 The "etarip full transactions list" is in the same format as the 2018 Etarip Transaction Sheet - it has four columns "Date", "Payment", "Receipt" and "Description". Sums included in the Payment column reflect sums which have been paid by Etarip and sums in the Receipt column reflect sums received by Etarip. There are two Etarip transaction sheets, one for each of Etarip's bank accounts. The transaction sheet for one of the accounts appears to reflect mostly transactions to and from the 4154 Etarip bank account with entries from 3 August 2016 to 8 December 2017. The transaction sheet for the Etarip bank account ending in 4154 has entries from 14 July 2016 to 8 December 2017. Because this document was attached to Mr Dunne's email of 4 March 2020, I will refer to it as the 2020 Etarip Transaction Sheet to differentiate it from the 2018 Etarip Transaction Sheet. 137 When cross-examined as to how he prepared the 2020 Etarip Transaction Sheet, Mr Dunne initially stated that he could not recall whether he had prepared it from scratch but suggested that he could have prepared a new spreadsheet. He proceeded to describe how he would go about this. When confronted with an obvious error in the date of three consecutive entries in the 2018 Etarip Transaction Sheet which was replicated in the 2020 Etarip Transaction Sheet, Mr Dunne eventually accepted that he had used the 2018 Etarip Transaction Sheet to create the 2020 Etarip Transaction Sheet. He was compelled to accept that to the extent the entries in the 2020 version were different to those in the 2018 version it was because he had changed them when he prepared the 2020 version. 138 The changes between the 2018 Etarip Transaction Sheet, which was prepared before Etarip went into liquidation, and the 2020 Etarip Transaction Sheet, which was prepared for the purpose of providing it to Etarip's liquidator, are telling. 139 First, there are over 20 entries in the 2018 Etarip Transaction Sheet for payments from the Etarip bank account ending in 4154 to MP01 with the description "trans mp01". There were also five entries which were described as "coffee club". As noted in Mr Pleash's report to creditors, it appears that MB01 was involved in the purchase of "The Coffee Club", a café in Bulimba. In the 2020 Etarip Transaction Sheet, there is not a single entry which refers to MP01 in its description. The entries which correspond to the entries which were described as "trans MP01" in the 2018 Etarip Transaction Sheet, have the description "coffee club - loan" in the 2020 iteration. The sum of the entries which are described as "trans mp01" in the 2018 Etarip Transaction Spreadsheet and as "coffee club - loan" in the 2020 Etarip Transaction Sheet is $520,500, which is also the sum of the amount which MP01 admits it received from Etarip as a loan. For completeness, I note that some entries in the 2018 Etarip Transaction Sheet which previously did not have any description included have been described in the 2020 Etarip Transaction Sheet as "coffee club" transactions. 140 The inference which I draw, based on a comparison of the 2018 Etarip Transaction Sheet and the 2020 Etarip Transaction Sheet and on the evidence given by Mr Dunne, is that Mr Dunne deliberately altered the transaction descriptions in the 2020 Etarip Transaction Sheet in order to disguise the fact that Etarip had advanced funds to MP01. In doing so, he appears to have been motivated to protect against the potential for recovery against MP01 because MP01 is the registered proprietor of the Bulimba Street property in which he resides. I do not accept that the differences between the 2018 and 2020 iterations of this document are the product of an inadvertent or innocent mistake. 141 Secondly, the 2018 Etarip Transaction Sheet records a payment of $338,015.00 on 8 December 2017 and is described as a "Loan payment to Bezel". In the 2020 Etarip Transaction Sheet, the only entry with that date and payment value is now described as "repay landac loan". There is no reference to "Loan payment to Bezel". When confronted with the change in the description given for the Bezel Loan transaction, Mr Dunne said that the description in the 2020 Etarip Transaction Sheet was incorrect and that he had "put the wrong description in". Mr Dunne did not accept that he had changed the description to hinder the liquidator from identifying and attempting to recover the loan from Bezel. By way of explanation, he said that the liquidator had access to the affidavit that Mr Dunne had provided in the Queensland Proceeding. That may be so, but it does not alter the fact that the information provided directly by Mr Dunne to the liquidator was, again, not true and served to obscure the payment of funds from Etarip to a company controlled by Mr Dunne. When the Liquidator commenced this proceeding and alleged that Etarip had made the Bezel Loan, Bezel admitted that allegation in the joint concise statement dated 23 December 2021. The inference that I draw from the fact that Mr Dunne removed the reference to the Bezel Loan from the 2018 Etarip Transaction Sheet when customising it for the liquidator in 2020 is that Mr Dunne was concerned not to inform the liquidator early on in his investigation into Etarip's affairs that Etarip had loaned money to Bezel. 142 Thirdly, the 2018 Etarip Transaction Sheet records an entry dated 23 November 2016 with a receipt value of $16,000 and the description "nd loan". The description "nd loan" appears to be a reference to a loan from "nd" - neville dunne - to Etarip. In the 2020 Etarip Transaction Sheet, the description for that entry has been changed to "repay landac loan" and the reference to "nd loan" has been removed. Mr Dunne was cross-examined on the change which he made to this entry in the 2020 version of the Etarip Transaction Sheet. He was ultimately compelled to accept that the description of this amount as a personal loan from himself to Etarip in the 2018 Etarip Transaction Sheet was more accurate than the description "repay landac loan" which Mr Dunne introduced in the 2020 Etarip Transaction Sheet which he provided to the liquidator. The change to the description in respect of this entry is a further example of Mr Dunne seeking to obscure the true nature of the transactions on Etarip's bank account from its liquidator. 143 In respect of the 2018 and 2020 Etarip Transaction Sheets, I find that: (1) Mr Dunne used the 2018 Etarip Transaction Sheet as the base document from which he prepared the 2020 Etarip Transaction Sheet; (2) Mr Dunne changed the description of payments made by Etarip to MP01 so that the entries did not refer on their face to MP01 and instead referred to a "coffee club - loan"; (3) In making the changes to the descriptions to the payments by Etarip to MP01, Mr Dunne sought to obscure from Mr Pleash during the early stage of the investigation into Etarip's affairs the potential for any recovery from MP01, which was the registered proprietor of the Bulimba property at which he and his family resided; (4) Mr Dunne changed the description of the payment of $338,015.00 from "Loan payment to Bezel" to "repay landac loan"; (5) Mr Dunne changed the description of the payment made by Etarip to Bezel in order to hinder Mr Pleash from exploring the possible recovery of the Bezel Loan, in circumstances where Bezel was still at that time a company controlled and owned by Mr Dunne; and (6) Mr Dunne further changed the description of the entry for "nd loan" to obscure the true nature of that transaction on the Etarip bank account from Mr Pleash even though the effect of doing this was to mask a relatively small claim which Mr Dunne could presumably have claimed as a creditor of Etarip.

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145 Mr Dunne was cross-examined on the 2020 Etarip Balance Sheet. At times his evidence on this topic was non-responsive and evasive. The substance of his answers evolved somewhat as his evidence progressed. Mr Dunne accepted that as the sole director he prepared this balance sheet for the purpose of providing it to the liquidator of Etarip. 146 He was first asked about the inclusion of a liability of $1.1 million to NGI. Mr Dunne said that at the time he created this balance sheet and presented it to Mr Pleash he did not accept that Etarip owed such a liability to NGI. Mr Dunne asserted that although he included the $1.1 million liability to NGI in the 2020 Etarip Balance Sheet, he did not accept that Etarip in fact owed that debt to NGI. He began by maintaining that he included this liability on the 2020 Etarip Balance Sheet because he was told to do so by Mr Pleash. Mr Dunne, upon being pressed, acknowledged that he made no mention of his alleged reservation about the inclusion of this liability in the balance sheet in his covering email to Mr Pleash. He accepted that the liability to NGI existed at the time he created the balance sheet but qualified his acceptance by saying that his acceptance of the existence of the liability was based on what Mr Pleash had said to him. Mr Dunne's assertion about what he says Mr Pleash said is not supported by any contemporaneous record. It is not addressed in his covering email. Had Mr Dunne included the liability in the balance sheet at Mr Pleash's insistence, it is likely, given his general level of assertiveness, that he would have included a caveat to that effect in his covering email or as a note to the balance sheet. He did not do so. To the extent that Mr Dunne said that he communicated his disagreement with the existence of this liability in a telephone call with Mr Pleash, I reject his evidence. A file note taken by Mr Pleash recording his conversation with Mr Dunne on 2 March 2020 does not suggest Mr Pleash told Mr Dunne to include Etarip's liability of $1.1 million to NGI on the Etarip balance sheet. To the contrary, Mr Pleash's file note includes the following (as written): When I asked how the debt arose he advised "good question" but he then said the Vender of Savannah had paid Etarip a consulting fee which NG was endeavoring to recover by way of the winding up proceedings. 147 I infer NG is a reference to NGI. 148 I find that at the time he created the 2020 Etarip Balance Sheet, Mr Dunne understood that Etarip owed a liability to NGI of $1.1 million. I find that Mr Dunne's acknowledgement of this liability was not based on what Mr Pleash allegedly told Mr Dunne but rather that the inclusion of the liability of $1.1 million to NGI reflected what Mr Dunne accepted to be true at the time he prepared the 2020 Etarip Balance Sheet. 149 Mr Dunne was next cross-examined on the reference in the 2020 Etarip Balance Sheet to an asset in the form of a $1.1 million loan to MB01. Mr Dunne said that he intended for the reference to MB01 to be a reference to loans to "MB01 and MP01". Mr Dunne says that he only realised his error when reviewing the balance sheet in the witness box. Mr Dunne states that the correct description of the asset should have been a loan to MB01 and MP01 in the combined sum of $1.1 million. Mr Dunne said the loan to MP01 was approximately $500,000. 150 When confronted with the proposition that the acceptance of such an asset existing at the time of the creation of the 2020 Etarip Balance Sheet meant that MP01 continued to owe Etarip money under that outstanding loan notwithstanding the purported entry into the MP01 Forgiveness Deed in February 2018, Mr Dunne immediately sought to deny that proposition by qualifying his previous evidence. Mr Dunne asserted that the loan recorded in the 2020 Etarip Balance Sheet was a record of amounts which had been owed "life to date" and was not a record of the outstanding amount at the time the balance sheet was prepared. 151 I accept the applicants' submission that Mr Dunne's attempt to qualify or recast the contents of the 2020 Etarip Balance Sheet must be rejected. I find that Mr Dunne's evidence was malleable and shaped by belated self-serving statements when he realised that his evidence as to the continued existence of a loan from Etarip to MP01 in the 2020 Etarip Balance Sheet undermined MP01's case that the loan had been forgiven in 2018. 152 Mr Dunne's contention that the 2020 Etarip Balance Sheet was intended to and did record what he described as "life to date" liabilities as opposed to extant liabilities was not plausible. Even if Mr Dunne could identify a sensible rationale for including "life to date" liabilities in the balance sheet which he provided to Mr Pleash, it is clear that he did not prepare the balance sheet on this basis. Had he done so the "life to date" liabilities would also have included reference to the Etarip loan to Bezel, which on Mr Dunne's account had also been forgiven, but it did not. 153 Mr Dunne did not give any explanation for why loans expressed on a so called "life to date" basis would be categorised as assets on Etarip's balance sheet. By definition, a loan which has been repaid, or on MP01's and Mr Dunne's evidence forgiven, is no longer an asset. I am satisfied that Mr Dunne appreciated this given his background as company director, his commercial experience and in light of his tertiary studies. I reject MP01's submissions to the contrary, including that Mr Dunne was "simply mistaken" and "confused" when he indicated that the liability to MB01 on the 2020 Etarip Balance Sheet was related to MP01 and that Mr Dunne "ultimately clarified" that the balance sheet referred to a loan to MB01 only. MP01's submissions rely upon Mr Dunne's testimony when he was cross-examined on the answers made in the ROCAP to which I turn below. 154 In respect of the 2020 Etarip Balance Sheet, I find that: (1) Mr Dunne included a liability of $1.1 million to NGI because at that time he as sole director of Etarip, recognised that Etarip owed that amount to NGI; (2) Mr Dunne did not include the $1.1 million liability to NGI merely because he was allegedly told to do so by Mr Pleash even though he denied the existence of such a liability; (3) Mr Dunne included a loan amount of $1,119,194.03 as an asset because he believed that was the total of the loans owed to Etarip from various parties, including from MP01 at that time. Mr Dunne only included MB01 as the relevant debtor to hinder Mr Pleash from exploring recovery options against MP01 and Bezel during the early stage of Mr Pleash's investigations; and (4) Mr Dunne sought to obscure the debt owned by MP01 to Etarip because MP01 was the registered proprietor of the residential property in which he and his family lived. 155 Mr Dunne was also cross-examined on the ROCAP dated 6 March 2020 which he completed in respect of Etarip. 156 In response to question B19 on the ROCAP - "In the last four years, has the Company lent money that the borrower has not paid in full?" - Mr Dunne answered "yes" and gave "mb01 pty ltd" as the name of the borrower and stated that $1,119,194.03 has been advanced for the purpose of "purchase and run coffee club". 157 When asked whether, as with his contention concerning the 2020 Etarip Balance sheet, the reference to MB01 should in fact be a reference to the total amount owed to Etarip by MB01 and MP01, Mr Dunne sought to retract his earlier evidence and advance yet another explanation. He contended that in fact the reference to MB01 in the 2020 Etarip Balance Sheet was correct on its face in only referring to MB01. I do not accept Mr Dunne's attempt to retract his assertion that the reference should be to both MB01 and MP01. I reject MP01's submission that Mr Dunne was "simply mistaken when he initially indicated that the reference to "loan MB01 1,119,194.03" had something to do with MP01." Mr Dunne's evidence that MB01 should instead refer to MP01 and MB01 in the 2020 Etarip Balance Sheet was given in clear and unequivocal terms. It was not until Mr Dunne was confronted with the notion that this would result in an outstanding debt owing from MP01 to Etarip being recognised on the 2020 Etarip Balance Sheet that he sought to qualify or retract his evidence. In respect of the ROCAP, I find that Mr Dunne included a loan amount of $1,119,194.03 because he believed that was the total of the loans owed to Etarip from various parties, including from MP01. As with the 2020 Etarip Balance Sheet, Mr Dunne only identified MB01 as the debtor in order to hinder Mr Pleash in exploring recovery actions against MP01 and Bezel. 158 There are other significant aspects of Mr Dunne's evidence in relation to the ROCAP which I will address in my substantive consideration below.

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Issue 1: Is the chose comprising the MP01 Loan property of the Etarip Trust? 172 The first issue is whether the chose in action comprising the debt owed by MP01 to Etarip is property of the Etarip Trust. For the purpose of considering this issue it matters not whether this debt was later forgiven or whether Etarip is otherwise precluded from enforcing the obligation to repay against MP01. 173 The answer turns on whether the loan was made in Etarip's capacity as trustee of the Etarip Trust. The importance of this issue is that it forms the basis for MP01's challenge to Etarip's standing to recover the loan. MP01 relies on the Etarip Variation Deed as having removed Etarip as Trustee of the Etarip Trust and installed Bezel as trustee in its place in April 2019. MP01 contends that because on its case Etarip is no longer trustee it cannot recover the MP01 Loan, if that loan is property of the trust. 174 It is common ground that by a series of bank transfers in the period from 1 October 2016 to 20 October 2017, Etarip transferred to MP01 a total of $520,500 and that in the face of demand for repayment, MP01 has not repaid Etarip any part of the loan. The transfers were made when Mr Dunne was the sole director and shareholder of Etarip and Etarip was wholly under his control. The account from which the transfers were made was held with the CBA in the name "ETARIP PTY LTD AS TRUSTEES FOR ETARIP TRUST". 175 The loan was not documented. The advances comprising the loan are evidenced only by Etarip's bank statements. No contemporaneous documentation exists recording or referring to the terms of the loan or the purpose for which the loan was advanced. 176 Etarip operated three bank accounts, each of which was styled by name as a trust account. 177 In his affidavit dated 4 November 2022, Mr Dunne asserted that: (1) Etarip was initially intended to be used to loan money to other companies that Mr Dunne established which companies would then provide secured loans to people for the purpose of purchasing Manufactured Estate Homes (MEH); (2) As he was unable to obtain an Australian Financial Services Licence he gave up on his original intention as to the purpose that Etarip would serve and accordingly Etarip did not trade; and (3) all activities in fact undertaken by Etarip were performed in its capacity as the trustee of the Etarip Trust. 178 In his oral evidence, Mr Dunne's description of Etarip's activities was given in broad and general terms. He said that "all the activities were undertaken by Etarip Trust and the activities were only commenced in 2016 and that was to loan money". He said "all the activities were through the Etarip Trust." He said that this "was the structure that was recommended and that's the structure that - that I used to run all the activities through the trust". He was vague about who had recommended that structure to him - when asked he said "various lawyers over time". He said that Etarip made two loans only, one to "MP Trust and one to Bezel". Mr Dunne said that the funds Etarip lent to MP01 were applied to the construction of the Bulimba property, being the address at which he resided. Mr Dunne said in his affidavit of 4 November 2022 that his intention was to use Bezel to import luxury cars into Australia and to earn a profit. 179 In support of its contention that Etarip made the MP01 Loan in its capacity as trustee, MP01 relies on three things. First, that Etarip was at the relevant times, the trustee of the Etarip Trust. Secondly, Mr Dunne's "unequivocal evidence" as the sole director of Etarip that the MP01 Loan was made in that capacity, which MP01 submits was not squarely challenged in cross-examination. Thirdly, that the transfers were made from an account in the name of Etarip as trustee. 180 MP01 submits that the Court should be satisfied that in advancing the loans to MP01 and Bezel Etarip acted as trustee of the Etarip Trust. 181 The first matter relied on by MP01 is neutral unless it is established that Etarip exclusively conducted itself as a trustee. Mr Dunne's evidence was that it acted exclusively as a trustee. He repeatedly injected into his answers that all of Etarip's activities were undertaken in its capacity as trustee. He did not provide any detail in relation the nature of Etarip's activities other than to assert that its only activity was to loan money. For the reasons given above, I do not place weight on Mr Dunne's evidence unless it is corroborated by other evidence or is against interest. On this issue, I find Mr Dunne's evidence to be particularly unsafe and patently self-interested (given the alignment between his own interests and those of MP01). 182 In the Etarip ROCAP which Mr Dunne completed on 6 March 2020 he answered questions as follows: (1) Question: "Did you operate the Company's business through a trust?" Answer: "No"; (2) Question: "Does the Company hold property on trust?" Answer: "No"; and (3) Question: "Is the Company owed money?" Answer: "Yes". 183 The first question and answer is directly contrary to the evidence Mr Dunne gave in this proceeding. He said Etarip's only activity was to lend money. If I accept that as correct, then his answer to the first question makes it plain that Etarip did not lend money through a trust. 184 Taking the second and third questions together, a further inconsistency emerges. On MP01's case, Etarip had been replaced by Bezel as trustee of the Etarip Trust on 21 April 2019. Assuming for the purpose of testing Mr Dunne's evidence on this point that Etarip had been replaced as trustee by the time that Mr Dunne completed the ROCAP then it may conceivably be correct that as at 6 March 2020, Etarip did not hold property (being the debt choses) on trust but in that case query whether the third question would sensibly be answered in the affirmative without expressly qualifying that the loan was made as trustee. Mr Dunne's affirmative answer to the third question is also inconsistent with Mr Dunne's purported execution of the Forgiveness Deeds on 14 February 2018. If those deeds had been executed and were intended to apply to the MP01 Loan and Bezel Loan in the way in which Mr Dunne now contends, that would have necessitated an answer in the negative to the third question. 185 I reject MP01's submission to the effect that Mr Dunne's answers to these three questions are equally consistent with a finding that Mr Dunne's perspective that Etarip did not operate its business through a trust or hold assets on trust because it did not operate a business or have any assets. 186 When cross-examined as to whether his answers to these questions meant that a debt was owed to Etarip which was not held on trust, Mr Dunne answered that he didn't "really know the definition of "Does the company own property - hold property on trust"". When pressed, he said that his understanding was that the company although a trustee did not hold property on trust. Mr Dunne said that he could not recall his understanding at the time he filled out the ROCAP but that he currently understands that there is a distinction between "holding a property in a trust, and holding property on a trust". 187 Mr Dunne's attempt at explaining the stark inconsistency in his answers on the ROCAP and his assertion in his evidence in this proceeding that Etarip only ever acted solely as a trustee was wholly unconvincing. I do not accept that Mr Dunne did not know either at the time he completed the ROCAP or when he gave his evidence what it meant for a company to hold property on trust. He had acted as the sole director of a number of private companies that appear to have been named as corporate trustees of trusts with which Mr Dunne was connected. The mechanism of holding property through a trust, in respect of which a corporate trustee was appointed, was a mechanism which Mr Dunne had used in his affairs over many years. 188 An example of his past experience is his evidence in relation to Sienna Blue Pty Ltd and the Sienna Blue Trust. Mr Dunne deposed in his affidavit dated 4 December 2022 that he instructed his lawyer to establish Sienna Blue Pty Ltd and the Sienna Blue Trust, with Ms Wolff being made the director and appointer of the trust. Mr Dunne paid all the associated legal fees. Mr Dunne deposed that "Sienna Blue atf Sienna Blue Trust purchased the property at 20 Jamieson Street, Bulimba". He intended to take over as director and shareholder of Sienna Blue Pty Ltd and as appointor of the Sienna Blue Trust, but did not do so because he received advice and realised that he would be liable to pay a significant amount of stamp duty if he did so. Similarly, Mr Dunne states that he did not pursue a transfer of the shares in Sienna Blue as that would "attract transfer duty based on the value of the assets of the trust". 189 When asked Mr Dunne could not draw a meaningful distinction between holding property "in a trust" and holding property "on a trust". To do so would require him to understand and be able to explain the differences he says exist between the two things. Instead his evidence that he understood what it meant to hold property in a trust but not what it meant to hold property on trust was an empty denial. In his cross-examination, Mr Dunne was able to explain that funds drawn from the MP Trust account would in his view be a distribution from a trust rather than a dividend from shares in MP01. His evidence reflected his understanding in relation to the relationship between trust property and the affairs of a corporate trustee. I find that by dint of his previous commercial experience as a company director as well as his tertiary studies he well understood the concept of a corporate trustee holding property on trust. 190 Accordingly, I find that Mr Dunne's negative response in the ROCAP in relation to Etarip not conducting its business through a trust was a truthful answer given against his interest, albeit unwittingly at that time. I find that his answer at this point in time is a strong indication that Etarip did not in fact conduct such business as it had through a trust. 191 Mr Dunne's evidence as to Etarip's activities being confined to acting as a trustee is also contradicted by the transaction descriptions he included in the 2020 Etarip Transaction Sheet. Mr Dunne records a number of entries in the 2020 Etarip Transaction Sheet for the Etarip bank account ending in 4154 from Etarip which on their face are not limited to making advances to MP01 and Bezel pursuant to the two loans in issue. For example, an entry for $45,853.12 on 22 November 2016 is described as "made up settlement with Fran Wolff". There are numerous entries for varying amounts of $10,000 or more described as "coffee club"; and there is an entry for $5000 on 23 October 2017 with a description of "pay for new tools at Savannah grounds". 192 The 2020 Etarip Transaction Sheet is a document that Mr Dunne created well after the transactions it purports to describe. Many of the descriptions included for the transactions itemised in the 2020 version of the schedule are not supported by any contemporaneous records. For the reasons given above, I am satisfied that Mr Dunne altered many of the descriptions in the 2020 iteration of the schedule to suit his perception of what would advance his interests at that time. What I take from the 2020 version of the schedule is that at that point in time Mr Dunne did not seek to present a picture of Etarip's activities that was consistent with the one he now seeks to advance. More particularly he did not suggest at the time he provided the 2020 Etarip Transaction Sheet to Mr Pleash that Etarip operated exclusively as a trustee of the Etarip Trust or that the advances recorded in that document represented distributions (directed or otherwise) of trust funds. This is another factor that weighs against MP01's contention that Etarip conducted itself as a trustee, whether exclusively or at all. 193 In closing submissions, MP01 sought to draw an analogy between the present facts and those in issue in Re Dunjey Property Pty Ltd (in liq) [2023] FCA 1254 (at [18]). The factual circumstances in Re Dunjey are readily distinguishable from the present facts. In Re Dunjey, in addition to the company's bank accounts being styled as trust accounts, there was evidence that: (1) The financial statements for each of the trusts constituted the entirety of the books and records of the company; (2) The assets identified in the financial statements and the ROCAP were the assets of one or other of the trusts, including shares and real property held or previously held by the company in its capacity as trustee; (3) One of the shareholdings identified in the financial statements was consistent with a declaration of trust provided to the liquidator confirming that the shares were held by the company in its capacity as trustee; (4) Each of the trusts had their own tax file number and Australian Business Number (ABN); (5) The debts owed to creditors identified in the financial statements and the ROCAP were recorded as being owed in the company's capacity as a trustee; (6) A loan deed with one of the company's creditors indicated that the debt owed was incurred in the company's capacity as trustee; and (7) The liabilities identified in the financial statements for each of the trusts appeared to have arisen in connection with Mr Dunjey's status as a beneficiary of the Trust. 194 Further, in Re Dunjey, there was no evidence of an ABN, a tax return, a bank account or a financial statement for any business carried on by the company in its own name (at [19]). In my view, MP01's attempt to draw succour from the analysis in Re Dunjey is misplaced. The contrast between the present facts and those in Re Dunjey demonstrate the tenuous basis upon which MP01 seek to establish that Etarip acted as a trustee at all, let alone exclusively. 195 Etarip's bank statement for account 4154 evidences the payments made by Etarip to various parties including MP01 but the contemporaneous descriptions given do not necessarily reveal the transfer destination. For example, descriptions include "Transfer to CB A/c Comm Bank app", not that the transactions were to MP01. Similarly, the transfers that went to Bezel are described as "Wdl Branch Bulimba" not that the payment was to Bezel. 196 As mentioned, Etarip's accounts including the 4154 account, is named to include reference to Etarip acting in the capacity of trustee. This is an indication that at the time the 4154 account was opened in 2013 it was intended to operate the account as a trustee. At this time, Etarip was under the control of Ms Wolff. No evidence has been adduced in relation to the circumstances surrounding the establishment of the 4154 account. The continued operation of the account in this name is another indication that the account was intended to be used by Etarip in its capacity as trustee. However, that the name of the account was not changed may just as readily be the result of inadvertence or oversight. On the evidence, Etarip's three bank accounts were each styled as trust accounts. For this reason, it may be plausible that Etarip's accounts were used for both trust and non-trust activities because Etarip did not have any bank accounts other than those that were styled as trust accounts. The evidence in relation to the bank statements must be considered in the context of the evidence as a whole. The bank statements are consistent with but do not establish the proposition that Etarip made the MP01 Loan as trustee. 197 Against this, the following factors weigh against the conclusion that the MP01 Loan was made by Etarip in its capacity as trustee: (1) there is no contemporaneous loan documentation that indicates that Etarip acted in its capacity as trustee in making the MP01 Loan; (2) there are no books and records maintained by Etarip or taxation returns which support the contention that Etarip was in fact acting as a corporate trustee or made the MP01 Loan in its capacity as trustee. MP01 submits that this is equally consistent with Etarip having poor record keeping practices and is thus neutral in determining whether the MP01 Loan was made by Etarip as trustee. I accept that is a possibility. However, bearing in mind the obligation to keep proper records under s 286 of the Corporations Act as it applies to corporate trustees (Australian Securities Commission v A S Nominees Ltd (1995) 62 FCR 504 at 514; 133 ALR 1 at 10; 18 ACSR 459 at 467: see also ASIC v ABC Fund Managers Ltd (2001) 39 ACSR 443 at [99]), the more natural inference is that there are no such records because the MP01 Loan was not made by Etarip as trustee. That preposition is reinforced by Mr Dunne's responses in the Etarip ROCAP. Accordingly, when viewed in the context of the whole of the evidence and particularly having regard to the inconsistency in Mr Dunne's evidence on this issue, I regard the absence of relevant documentation as weighing heavily in favour of the conclusion that the MP01 Loan was not made by Etarip acting as trustee; (3) apart from Mr Dunne's evidence which I regard as unreliable and the styling of the bank account names held by Etarip, there is no evidence that Etarip ever did anything in its capacity as trustee of the Etarip Trust; (4) the nature of the transactions revealed by the bank statements suggest although Etarip maintained accounts in the name of Etarip in its capacity as trustee, payments made from the account ending in 4154 are inconsistent with Mr Dunne's assertions that Etarip solely operated in its capacity as a trustee and that transactions were underpinned by trust distributions; and (5) another factor that weighs against the conclusion that if the MP01 Loan was trust property, is that there is no suggestion that when Etarip dissipated the trust property through the alleged forgiveness of the debt it did not seek the informed consent of all of the beneficiaries of the trust (of whom Mr Dunne is but one). The position would be different however if the MP01 Loan was made by Etarip in its own right. Mr Dunne, being the sole director, secretary and sole shareholder of Etarip could authorise and indeed, if necessary, ratify such a dissipation of the company's property. 198 Taking the above factors in account, I am not persuaded that Etarip made the loan to MP01 as a trustee of the Etarip Trust. The evidence is almost entirely the other way. I am not persuaded on the evidence before me that Etarip in fact ever acted in its capacity of the Etarip Trust in undertaking the transactions recorded in its bank accounts. Mr Dunne's evidence was to the effect that "Etarip was incorporated to invest by providing debt facilities" and "MP01 was incorporated as a property developer company". Leaving to one side whether Mr Dunne's evidence should be accepted on this point, even if the companies were initially incorporated with those somewhat sophisticated purposes in mind, by February 2018 it was clear that the operation of the companies was much more prosaic. In cross-examination, Mr Dunne conceded that all Etarip ever did was act as a conduit for the transfer of money between companies controlled by Mr Dunne, transfers he characterised as "loans". This was the extent of its lending business. MP01 was only ever used to build and renovate the home in which Mr Dunne and his family reside. 199 MP01's contention that Etarip operated as a trust was based on the existence of the trust deed setting up the Etarip Trust and the fact that Etarip's bank accounts were styled as being held by Etarip "as the trustee of Etarip Trust". But on the evidence, there is a real question whether the Etarip Trust operated at all. Mr Dunne accepted that there have never been any statements of trust distributions. No documents relating to the administration of the trust, including for example, trust accounts and tax returns, were tendered. The final, and perhaps most compelling, point being that when Mr Dunne filled in the ROCAP, he confirmed that he did not operate Etarip's business through a trust. He also indicated that Etarip held no assets on trust. His attempts in cross-examination to explain his responses in the ROCAP were not convincing. I reject his evidence on this issue. 200 I find that Etarip made the advances which comprise the MP01 Loan in its own right and not as trustee. In light of this finding, it is not necessary to consider MP01's submissions which challenge the applicants' standing to recover the MP01 Loan. I am satisfied that Etarip and Mr Pleash, as liquidator of Etarip, have standing to seek to recover the MP01 Loan which was made by Etarip in its own right. 201 As I have found against MP01 in respect of Issue 1, it is not strictly necessary for me to address Issues 2, 3, and 4 in detail. These issues were however the subject of substantial and fulsome argument and some of the evidence relevant on these issues has already been considered in my assessment of Mr Dunne's credibility. I will therefore briefly set out the findings I would have made, particularly in respect of facts vis a vis Issues 2 to 4, if I had found in MP01's favour on Issue 1. I will then turn to consider Issue 5.

[68]

Issue 3: Does Etarip have standing to recover the MP01 Loan? 205 MP01 contends that Etarip lacks standing to sue to recover the MP01 Loan because it is no longer trustee of the Etarip Trust. MP01 submits that: (1) the Etarip Variation Deed which on its face is dated 21 April 2019 removed Etarip as trustee of the Etarip Trust and appointed Bezel as the trustee in its stead; and (2) the Etarip Deed Poll dated 12 July 2021 vested the trust property of the Etarip Trust in Mr Dunne. 206 In response, Etarip contends that the Etarip Variation Deed and the Etarip Deed Poll should be declared void pursuant to s 228 of the Property Law Act. Before turning to consider this provision, it is convenient to say something about the Etarip Variation Deed in more detail. 207 The provenance of the executed version of the Etarip Variation Deed in evidence was the subject of controversy. It formed part of exhibit NMD-1 to Mr Dunne's affidavit dated 4 November 2022. Mr Dunne also gave more evidence in respect of the Etarip Variation Deed in his affidavit dated 5 October 2023: 45. I subsequently changed solicitors from Mr Wilson to Mr Liam McMahon of Enyo Lawyers in about May 2021. In or around May 2021, I became aware that the Etarip Trust had not vested. As a result, I took steps to cause the vesting of the Etarip Trust to occur in accordance with my previous instructions to my previous solicitor, Mr Chris Wilson, which had been communicated to Mr Wilson in late 2018. 46. In July 2021, I recall calling Mr Wilson to obtain a copy of the deed of change of trustee and sending him an email to that effect. 47. On 7 July 2021, I received a copy of an email from Mr Wilson, a true copy of which is at [221]. 208 The email referred to at paragraph 47 of Mr Dunne's affidavit is exhibited and consists of two emails dated 7 July 2021. 209 The first email is from Mr Dunne at 7:26 am and was sent on 7 July 2021. The email recipients are not obvious on the face of the document, but I infer that it was sent to at least Mr Wilson, Mr Dunne's then solicitor, given that Mr Wilson replies to this email. In his email, Mr Dunne's emails says (as written): Morning mate, Sorry to hassle you again, but I need to get the paper work for the changing the Trustee for etarip trust to Bezel Pty Ltd, if I can get that today it would be great. Regards, 210 Mr Wilson replied to Mr Dunne at 7:33 am, copying Kiara Woodward, (as written): Hi mate - not hassling at all. We've spent 2 days trying to find it. I've got the emails where you and I planned a meeting to talk about structures/trusts (19 April 2019). I've also got a date of 23 April 2019 for the change being made (as per an email we sent to Hall Chadwick). I've been through all of the files in our system for you and your companies, as well as current and former employees email/files to see if it's anywhere, but can't see anything. Kiara abs I spent most of yesterday tearing offices apart looking for a physical document, but we can't even see anything electronically either. Do you recall if it was me that did it, or was it Dan or someone else? Would it be something that Sha would have? (Seems unlikely, but I'm clutching at straws now!) As I said, I've got the emails verifying the detail of it, so there's no question that's when the change was made. If we need to sort out a document to confirm that, so be it. There isn't anything inconsistent with that, given we've been operating with Bezel as trustee for around 3 years. Let me know if you've got anything that might help narrow things down, otherwise we can fix the deed up. Thanks, 211 I note that Ms Woodward appears to be a lawyer who worked for or under the direction of Mr Wilson at around July 2021. 212 Mr Dunne then deposes at paragraphs 48 and 49 of his third affidavit affirmed on 5 October 2023 as follows: 48. Sometime after receiving this email on 7 July 2021, I recall receiving a telephone call from Mr Wilson where he told me words to the effect that he had a flooding issue in his office and that he had documents all over the place. He told me that he had then located a copy of the deed of change of trustee, but not the original document which I had executed on 19 April 2019. The document which I was provided by Mr Wilson is the document which appears at Exhibit NMD-2, page 62 of my Second Affidavit. I recognise this document to be a copy of the document which I had executed at Mr Wilson's offices on 21 April 2019. I did not attend Mr Wilson's offices in this period, or at any period prior, or at all, to execute any deed or copy thereof, to change the trustee of the Etarip Trust in July 2021. To the best of my recollection, the only time which I had executed the document referred at NMD-2, page 62 of my Second Affidavit, was on 21 April 2019. 49. On 12 July 2021, I executed a deed poll of amendment, minutes and a resolution (which appears at exhibit NMD-2, pp. 65 - 74). The documents referred to at exhibit NMD-2, pp.65 - 74 had been later prepared on 12 July 2021, however I had intended to vest the Etarip Trust in late 2018 for the reason set out at paragraph 35 above and did so subsequently for the reason set out in paragraph 45 above. 213 Notwithstanding erroneous cross-referencing within his affidavit, I infer that Mr Dunne is referring to the documents I have identified in paragraphs 6 and 69 above as the Etarip Variation Deed and the Deed Poll in executed form. 214 Mr Dunne claims that: (1) Mr Dunne received a phone call from Mr Wilson after receiving Mr Wilson's email extracted above, informing him that: (a) Mr Wilson's office had experienced a flooding issue; (b) Mr Wilson had located a copy of the Etarip Variation Deed executed on 21 April 2019 but not the original executed on 19 April 2021; (2) Mr Wilson provided the copy of the executed Etarip Variation Deed to Mr Dunne; (3) Mr Dunne did not attend Mr Wilson's office in July 2021, or at any period prior or at all to execute any deed or copy thereof to change the trustee of the Etarip Trust; (4) Mr Dunne executed the original Etarip Variation Deed on 19 April 2019 but Mr Wilson could not locate it; and (5) the only time Mr Dunne had executed the Etarip Variation Deed was on 21 April 2019. 215 Mr Wilson did not give evidence and was not called as a witness. 216 Mr Dunne was challenged in cross-examination on his asserted version of events. This was done by reference to emails which had been produced by Mr Wilson in response to a subpoena issued on 8 June 2023 which relevantly required the production of: documents referring to the Deed of Variation between Etarip Pty Ltd, Bezel Pty Ltd and Neville Martin Dunne dated 21 April 2019 including any communications with Mr Dunne, or any other person, relating to the preparation or witnessing of that document. 217 The documents produced by Mr Wilson consisted of several email chains and one attachment to one of the email chains. 218 The first relevant email chain does not have a subject line. It is from Mr Dunne to Mr Wilson on 9 April 2019 at 8:17 am. Mr Dunne asks Mr Wilson whether he has time to discuss a "company/trust structure" with ensuing emails setting an appointment time of 3 pm on 10 April 2018. There is no further detail on the face of the document as to the nature of the "company/trust structure" being discussed. I interpolate to note that Mr Wilson's email to Mr Dunne at 7:33 am extracted above (and being part of a separate email chain in 2021) refers to "emails where you and I planned a meeting to talk about structures/trusts (19 April 2019)". The relevance of this date will become apparent below. It suffices to note at this stage that Mr Wilson did not produce in response to the subpoena any emails between Mr Dunne and Mr Wilson either bearing a date of 19 April 2019 or which envisaged that they would meet on 19 April 2019. 219 The second relevant email chain has the subject line "docs for bezel as trustee". This chain was initiated by an email from Mr Dunne to Mr Wilson on Thursday, 1 July 2021 at 10:35 am. In it, Mr Dunne states (as written): Hi Mate I dropped into your office one day and signed some documents to change the Trustee of Etarip trust to Bezel, can you get Kiara to email them to me please. Regards, 220 Mr Wilson responds on the same day stating (as written): I will have her look on our system mate - but if we've only got hard copies, it will have to wait until Monday when we're back in the office sorry. 221 I infer that the reference to "Monday" is a reference to Monday, 5 July 2021. 222 The third relevant email chain has the subject line "Bezel" and commences with an email from Mr Dunne on 7 July 2021 at 7:26 am and is the same email which was exhibited to Mr Dunne's affidavit and which is extracted above at paragraph 209. Similarly, Mr Wilson's reply on the same day at 7:33 am is also exhibited to Mr Dunne's affidavit and is extracted at paragraph 210. What was not exhibited to Mr Dunne's affidavit were emails subsequent to this chain, which included Mr Dunne's reply email on the same day at 7:36 am, which said (as written): Hi Mate, If we can get another copy of the deed that might be the fastest way. I can drop in and sign it and pick it up if that's ok. Regards, 223 Mr Wilson replies on the same day. He says that he will "get something done up this morning" and asks Kiara whether they have a copy of the "ETARIP trust deed". Ms Woodward confirms that they do. In the same email chain and by email on the same day Mr Dunne makes an appointment to "drop in about 2[pm] if that's ok" to which Mr Wilson replies "Sounds good - will sort it for then". 224 The final relevant email chain obtained on subpoena from Mr Wilson is an email with the subject line "Change Trustee" from Mr Wilson to Ms Woodward (only) at 9:47 am in which he states (as written): Can you have a look in S:\ to see if you can find a deed of change of trustee? I don't have one in my DB that I can access. Thanks! 225 Ms Woodward replies at 9:51 am with an attachment titled "Deed of Variation - Dunne.doc" in which she says (as written): I've done this up from a precedent I found in your folder, let me know if that's not correct and I'll find another precedent. Kind Regards, 226 The two page document attached to Ms Woodwards' email is virtually identical to the executed version of the Etarip Variation Deed exhibited to Mr Dunne's affidavit save for some minor amendments which include: (1) the insertion of the date of the Etarip Variation Deed by hand in the executed version; (2) the application of signatures to the execution blocks; (3) the removal of the italicisation of the company names in the execution blocks; and (4) the replacement of the placeholder "[date of deed]" with "5 August 2013" in Recital A. 227 There is a striking replication of minor errata in both the version attached to Ms Woodwards' email and the executed version of the Etarip Variation Deed which is in evidence. Under the heading "PARTIES", the description of the first party does not have a period at the end whereas the descriptions of the second and third parties do. Secondly, Recital C extracts clause 18.1 of the Etarip Trust Deed. Clause 18.1 of the Etarip Trust Deed in evidence refers to the defined term "Income" on two occasions. By contrast, the extract of cl 18.1 in both versions of the Etarip Variation Deed refers to lowercase "i" income on the first occasion and then uppercase "I" Income as per the defined term "Income" on the second occasion. 228 I do not accept Mr Dunne's evidence in respect of the Etarip Variation Deed for reasons in addition to the general reservations that I have expressed in respect of Mr Dunne's evidence. Those additional reasons are as follows. 229 First, it is clear from the email chain with the subject line "Bezel" that as at 7 July 2021, extensive searches had been undertaken by Mr Wilson and his staff and they were unable to locate a physical or electronic copy of the Etarip Variation Deed said to have been executed in April 2019. Mr Wilson and Mr Dunne, then on the same day by further email correspondence (in the same email chain) agreed that Mr Wilson would create another deed and Mr Dunne would attend Mr Wilson's office later in the day at 2 pm to sign and collect. Mr Dunne deposes to receiving a phone call after receiving Mr Wilson's email on 7 July 2021 at 7:33 am and that the Mr Wilson told him that a copy of the change of trustee deed had been located. This purported conversation with Mr Wilson sits uneasily with the documentary evidence which suggests that despite "tearing offices apart" no copy of the deed could be located. The email chains demonstrates that at least until 9:47 am on that day, Mr Wilson had proceeded on the basis that the previously executed Etarip Variation Deed could not be located. The proposition that Mr Wilson suddenly located the previously executed Etarip Variation Deed between 10 am and 2 pm, despite not locating it in extensive searches in prior days, is incredulous. Mr Dunne also claims that Mr Wilson told him by phone that Mr Wilson had experienced a "flooding issue in his office and that he had documents all over the place". There is no mention in Mr Wilson's emails to Mr Dunne of any such flooding event. 230 Furthermore, there is no documentary record to suggest that the agreement that Mr Dunne would attend Mr Wilson's office to execute a fresh deed of variation did not proceed as planned. Weighing against this, one is left with Mr Dunne's bare assertion that he "did not attend Mr Wilson's offices in this period, or at any period prior, or at all, to execute any deed or copy thereof, to change the trustee of the Etarip Trust in July 2021." I reject Mr Dunne's evidence. 231 That the version drafted by Ms Woodward is virtually identical, down to the details of errata identified above, to the version which Mr Dunne asserts was executed in April 2019 suggest that what was planned in fact transpired. 232 Further, and for completeness, I note that Mr Dunne deposed that in the phone call with Mr Wilson, he was informed that the copy of the Etarip Variation Deed dated 21 April 2019 was located but not the "original" document executed on 19 April 2019. Mr Dunne says that it is the 21 April 2019 copy which he annexes to his affidavit. Mr Dunne proffers no explanation as to why, having purportedly executed the deed on 19 April 2019, it was necessary for Mr Dunne to execute a copy some mere two days later on 21 April 2019. Furthermore, the email correspondence from Mr Wilson does not support Mr Dunne's assertion that the Etarip Variation Deed was executed on 19 April 2019. Instead, Mr Wilson merely states that he had "emails where you and I planned a meeting to talk about structures/trusts (19 April 2019)". I reject Mr Dunne's evidence on this topic. In doing so, I have not overlooked that he has been selective about the document he has chosen to place before the Court and that he introduced variations in giving his oral evidence which are not supported by, and indeed largely contradict, his oral evidence. 233 For the reasons which I have given above, I find as follows: (1) the executed version of the Etarip Variation Deed in evidence was in fact executed on or around 7 July 2021, prior to the execution of the Deed Poll in July 2021; (2) the Etarip Variation Deed was backdated at the time it was executed in July 2021, to 21 April 2019; (3) Mr Dunne's evidence in relation to his alleged phone conversation with Mr Wilson at paragraph 48 of his affidavit dated 5 October 2023 is not truthful; (4) Mr Dunne' evidence that he had originally executed the Etarip Variation Deed on 19 April 2019 was not truthful but rather confected to explain why the executed version (dated 21 April 2019) is stamped as a "copy"; (5) The Etarip Variation Deed and the Deed Poll were prepared in July 2021, which was after Mr Dunne was publicly examined in May 2021 in respect of Etarip's affairs and at a time when Mr Dunne was aware that he was to be subjected to a further public examination; and (6) Mr Dunne sought in July 2021 to execute the Etarip Variation Deed and the Deed Poll for the purposes of hindering any potential recovery by creditors of Etarip as against MP01, which was the registered proprietor of the Bulimba property in which he resided. 234 These findings have relevance to the question of intent to defraud as well as negatively impacting Mr Dunne's credibility. These findings supplement and support my prior conclusion that no weight may be safely placed upon Mr Dunne's evidence unless it is supported by independent contemporaneous documentation or is otherwise against his interest. 235 MP01 submits that regardless of whether Mr Dunne gave false evidence in respect of the date of the Etarip Variation Deed, Bezel had become a trustee of the Etarip Trust in April 2019 and that any deed of variation executed in July 2021 was "merely intended to create a documentary record of a transaction that had already occurred in circumstances where the contemporaneous document had been misplaced". MP01 relies upon the email correspondence between Mr Wilson and Mr Dunne in support of this submission. I do not accept this submission. In my view, the email correspondence sought to be relied upon by MP01 does not support the inference for which MP01 contends. 236 I accept that it appears on the basis of the correspondence in July 2021 that Mr Dunne and Mr Wilson operated on the premise that Bezel had been appointed as trustee of the Etarip Trust. This is reflected in their email correspondence but the tenor of that correspondence suggests that Mr Wilson is reconstructing on the basis of documents that were not adduced in evidence on the basis of what Mr Dunne told him without any independent recollection: We've spent 2 days trying to find it. I've got the emails where you and I planned a meeting to talk about structures/trusts (19 April 2019). I've also got a date of 23 April 2019 for the change being made (as per an email we sent to Hall Chadwick). … Do you recall if it was me that did it, or was it Dan or someone else? Would it be something that Sha would have? (Seems unlikely, but I'm clutching at straws now!) As I said, I've got the emails verifying the detail of it, so there's no question that's when the change was made. If we need to sort out a document to confirm that, so be it. There isn't anything inconsistent with that, given we've been operating with Bezel as trustee for around 3 years. 237 There are two points of note however. First, it is clear that as at 7 July 2021, Mr Wilson did not have any recollection of working on the deed of change of trustee in 2019, with Mr Wilson querying who might have done so. Secondly, Mr Wilson's understanding that Bezel has become the trustee of the Etarip Trust appears to be speculation based on emails between himself and Mr Dunne where they "planned a meeting to talk about structures/trusts (19 April 2019) and an email to Hall Chadwick that is not in evidence. These documents appear to be what Mr Wilson is referring to when he says "as I said, I've got emails verifying the detail of it, so there's no question that's when the change was made". 238 As I have noted above, Mr Wilson did not produce any emails in response to the subpoena which were either dated 19 April 2019 or which referred to a meeting being scheduled for 19 April 2019. Even if an assumption is made in MP01's favour that the reference to "19 April 2019" is an erroneous reference to "9 April 2019", this does not advance matters very far. The emails dated 9 April 2019 produced by Mr Wilson are completely generic with a bald reference to discussing a "company/trust structure". On the face of the 9 April 2019 emails, there is nothing to indicate that this was a reference to Etarip or the Etarip Trust, let alone the appointment of Bezel as trustee of the Etarip Trust. 239 Mr Wilson's reference to an email in which "they" had informed Hall Chadwick of the change of trustee at a certain date, does not establish that a deed to effect that change had been executed by then, particularly in circumstances where no trace of such a deed (whether in hard or soft copy) was turned up after two days of searching. A further factor that suggests that no deed was executed is that when the Etarip Variation Deed was in fact executed in July 2021, and backdated to April 2019, the recitals did not include any reference to the deed being made as a replacement for a deed that had been executed in April 2019 but lost. 240 I am not persuaded that the assertions contained in the email correspondence relied upon by MP01, either individually or in combination, establish that a deed of change of trustee had in fact been executed in April 2019 with respect to the Etarip Trust. I do not place any weight on the applicants' submissions as to hearsay limitations, such submissions which were in effect abandoned at the oral hearing. 241 Even if I had been satisfied that in fact a deed had been executed in April 2019, on the state of the evidence before me, I am not in a position to safely infer the terms of that deed. Mr Wilson clearly states in his email correspondence that he has no recollection of preparing such a deed. It is unclear whether if such a deed existed, it was prepared by Mr Wilson's office. Noting that Mr Dunne prepared the Bezel Forgiveness Deed and the MP01 Forgiveness Deed I consider it possible that Mr Dunne may have prepared the deed if indeed any such deed was executed in 2019. In that event, it is possible that like with the forgiveness deeds, Mr Dunne is mistaken about the legal effect of any such purported deed which he purportedly executed in April 2019. In the absence of the primary document, that is the deed which is said to have been executed in April 2019, I would if it had been necessary to determine this issue regarded it as unsafe to infer that such a deed if it existed had the legal effect for which MP01 contends. 242 Accordingly, had it been necessary to do so, I would have concluded that MP01 has not discharged its burden in demonstrating that Bezel was appointed as trustee of the Etarip Trust in April 2019. First, it will be recalled that Mr Pleash was appointed liquidator of Etarip on 19 February 2020. As MP01 has not demonstrated that Etarip was removed as trustee prior to the appointment of Mr Pleash, Etarip remained as trustee of the Etarip Trust at the time it entered into liquidation. By operation of cl 12.5(b) of the Etarip Trust Deed, Etarip became a bare trustee upon Mr Pleash's appointment. 243 By the time the Etarip Variation Deed was executed in July 2021 by Mr Dunne as director of Etarip, Etarip was under the control of Mr Pleash, the liquidator. Mr Dunne did not have the power to bind Etarip by executing the Etarip Variation Deed after Mr Pleash's appointment. It follows that the Etarip Variation Deed was not effective in removing Etarip as trustee of the Etarip Trust. 244 Had it been necessary to decide, I would have found that the Deed Poll executed by Bezel in its purported capacity as trustee of the Etarip Trust was similarly ineffective in achieving its object. 245 It follows that Etarip remains the bare trustee of the Etarip Trust and that being the case, MP01 properly concedes that Etarip has standing to bring these proceedings. 246 It is therefore not necessary to consider the arguments raised by the parties in respect of s 228 of the Property Law Act, other than to record that had it been necessary to decide, then having regard to the factual findings I have made and the above analysis, I would have been satisfied that Mr Dunne executed the Etarip Variation Deed and the Deed Poll for the purpose of defrauding the creditors of Etarip. 247 For completeness, I note that in seeking to respond to the attack made on their standing to recover the MP01 Loan, the applicants mounted an argument based on extending the principle that in certain circumstances a trust beneficiary may be allowed to sue a third party in their own name, joining the trustee as a defendant who should have, but has not, brought such a claim to circumstances where a former trustee seeks to bring a claim which a current trustee could have but has not brought, relying on Alexander v Perpetual Trustees WA Ltd [2004] HCA 7; 216 CLR 109 at [55]-[56] (Gleeson CJ, Gummow and Hayne JJ, noting that the appeal was dismissed and the decision below affirmed due to an evenly split bench) citing Ramage v Waclaw (1988) 12 NSWLR 84 at 91-93 (Powell J) and Jaken Properties Australia Pty Ltd v Naaman [2023] NSWCA 214 at [144] (Leeming JA). An application for special leave was granted in respect of Jaken, argument has been heard and the High Court is presently reserved. 248 In Jaken, the parties accepted that the former trustee had recourse to trust assets in relation to dispositions and threatened dispositions of trust assets to third parties. For that reason, argument was not received on the point that would have arisen in this proceeding had I not found that the MP01 Loan was not trust property. 249 The parties also directed my attention to Ridge Estate Pty Ltd v Fairfield Pastoral Holdings Pty Ltd [2024] FCAFC 17; 302 FCR 375 (Banks-Smith, O'Sullivan and Feutrill JJ), which was delivered earlier this year after judgment was reserved in this proceeding. The Full Court relevantly considered whether a former trustee, in circumstances where its removal as trustee has hindered or delayed its access to trust assets, can rely on s 86 of the Law of Property Act 1936 (SA) to have the deed effecting its removal and underlying conveyances declared void in circumstances where the conveyance of property was made with the intent to defraud creditors. 250 The submissions based on these authorities do not arise for consideration in this proceeding in light of the factual findings I have made. Consistently with the observations made by Leeming JA in Jaken at [144] and having regard to what needs to be decided in the present proceeding, I need not address the parties' submissions on this issue any further given the findings I have made.

[70]

Construction 252 First, MP01 acknowledges that read literally, the MP01 Forgiveness Deed purports to operate such that MP01 forgives any debts owed to it by Etarip. MP01 however contends that the parties to the deed had mistakenly defined the terms "Creditor" and "Debtor" and such a mistake could be cured by construing the deed such that the forgiveness flows the other way, relying upon Fitzgerald v Masters [1956] HCA 53; 95 CLR 420 at 426-427 (Dixon CJ and Fullagar J). Leeming JA in Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2019] NSWCA 11; 99 NSWLR 317 at [6]-[10] helpfully identified two conditions which are required to correct the "mistakes" in the way in which MP01 seeks to do. First, the literal meaning of the contractual words must be an absurdity. Secondly, it must be self-evident what the objective intention is taken to have been. 253 The level of satisfaction for both elements must be "high": Commissioner of Taxation v The Trustee for the Michael Hayes Family Trust [2019] FCAFC 226; 273 FCR 567 at [36]-[37] (Steward J, Griffiths and Derrington JJ agreeing). 254 In my view, MP01 fails to meet both hurdles. MP01 submits that the deed is absurd on its face because: (1) Etarip was incorporated to invest by providing debt facilities whereas MP01 was incorporated as a property development company; (2) Etarip's business involved making loans whereas MP01's did not; and (3) that "the evidence supports a finding that MP01 never loaned money to Etarip or at least that Etarip did not owe MP01 money in February 2018". 255 I do not accept MP01's submissions. I am not satisfied that MP01 never loaned money to Etarip. MP01 relies upon Mr Pleash's oral evidence that he had not seen any document evidencing a loan by MP01 to Etarip and Mr Dunne's evidence that he could not recall Etarip owing money to MP01 at the time of the MP01 Forgiveness Deed. The lack of loan documentation is not determinative. I place little weight on it in circumstances where Etarip does not appear to have documented any of the loans to which it was a party which are revealed by the evidence in this proceeding. 256 Mr Dunne's evidence that he could not recall Etarip owing money to MP01 is but a bare assertion. In any event, for the reasons I have given above, I regard Mr Dunne's evidence as unreliable unless it is against his interest or corroborated by contemporaneous records. In this instance, it is not. 257 In any event, I do not accept that the literal effect of the MP01 Forgiveness Deed to be absurd. Mr Dunne clearly had poor record-keeping practices. The loans made between his companies appear to have been undocumented. In these circumstances, there is a cogent commercial purpose for Etarip to enter into the deed so as to remove with certainty any doubt about the existence of debts which may otherwise have emerged as owing by Etarip to MP01, where the potential existence of such debts could not be readily ascertained. 258 For similar reasons, MP01 has not demonstrated to the requisite standard that the objective intention was for MP01's debts to Etarip to be forgiven rather than vice versa. 259 In any event, on the facts as I have found them, even if the MP01 Forgiveness Deed was construed in the manner for which MP01 contends, Etarip did not make any loan in its capacity as trustee of the Etarip Trust to MP01. For this reason the Forgiveness Deed does not bite even on MP01's preferred construction.

[71]

Equitable Rectification 260 Secondly, MP01 seeks equitable rectification of the deed so that it has the operation for which MP01 contends. Equitable rectification requires there to be a common intention which through a common mistake was not reflected in the document: Seymour at [12]. The common intention must be provided to a high standard with a person seeking to rectify a deed needing to establish the alleged intention in the clearest and most satisfactory manner: Seymour at [13] citing Simic v New South Wales Land and Housing Corporation [2016] HCA 47; 260 CLR 85 at [41] (Kiefel J, with whom French CJ agreed in this respect), who in turn cited Fowler v Fowler [1859] EngR 598; (1859) 4 De G & J 250 at 265; 45 ER 97 at 103 (Lord Chelmsford). 261 MP01 seeks to displace the intention manifest on the face of the deed, by reference to Mr Dunne's evidence as director of both MP01 and Etarip at the relevant time. I do not accept Mr Dunne's evidence in this regard for the reasons which I have set out previously above. I am not at all satisfied, let alone to the requisite "high standard", that the common objective intention of the deed is as contended for by MP01. 262 MP01's claim that the MP01 Loan was forgiven has not been made out. 263 For completeness, I note that even if MP01 succeeded on its rectification claim, the relevant creditor of the rectified MP01 Forgiveness Deed would be "Etarip Pty Ltd ACN 164 972 829 ATF Etarip Trust", that is Etarip acting in its capacity as trustee for the Etarip Trust and not its own right. As I have found in Issue 1 that the MP01 Loan was not made by Etarip as trustee, the MP01 Loan would not be captured by the MP01 Forgiveness Deed in any event. 264 In dealing with this issue in the brief way that I have because it is strictly not necessary to decide based on my finding on Issue 1, it has not been necessary for me to address those parts of the evidence which throw doubt on whether the Forgiveness Deeds were in truth executed on the date on which they purport to have been executed.

[74]

Estoppel 267 MP01 puts its defence based on estoppel in three ways: (1) estoppel by representation: relying on Mr Dunne's representation on behalf of Etarip to MP01 as to the forgiveness of the MP01 Loan. MP01 says that in reliance on that representation, MP01 altered its position by continuing to develop the real property owned by it and incurring liabilities and expending money for that purpose; (2) estoppel by convention: MP01 submits that Etarip and MP01 adopted as the conventional basis of their relationship that the loan was no longer payable or would no longer be payable, enforceable or enforced. The submission as to reliance is the same as set out above. (3) promissory estoppel: MP01 submits that the decision to forgive the loan constituted a representation or promise that the MP01 was or would no longer be payable, enforceable or enforced and MP01 was induced to assume and did assume that the loan was no longer payable to the knowledge of Etarip. The submission as to reliance is the same as set out above. 268 It is convenient to deal with the promissory estoppel ground and the estoppel by representation ground together. Having rejected Mr Dunne's evidence, the submissions that Etarip either made representations or promises to MP01 that the MP01 Loan has been forgiven is not borne out on the evidence. I also do not accept MP01's submission that it has altered its position in reliance of the asserted representation or promise. This is based entirely on Mr Dunne's evidence. I consider Mr Dunne's evidence that MP01 would not have continued to develop the property at 22 Jamieson St particularly implausible noting that it is his residential address. His evidence in relation to the timing of the construction of that property being completed was not supported by independent evidence. 269 A similar analysis as to the reliance applies for the estoppel by convention claim. I do not accept Mr Dunne's evidence that Etarip and MP01 adopted as the conventional basis of their relationship that the loan was no longer payable or would no longer be payable, enforceable or enforced. MP01 also relies upon Mr Pleash's evidence that he was not aware of any demand for repayment prior to his appointment as liquidator of Etarip. I do not accept that the lack of a demand for repayment necessarily supports the proposition that the MP01 Loan had been forgiven. At best, it is a neutral fact which is not inconsistent with that proposition. It is also not inconsistent with a range of other alternative scenarios where the MP01 Loan remained on foot, but Etarip did not demand repayment as MP01 was not in a position to repay the loan, with both Etarip and MP01 being controlled by Mr Dunne. Further, in circumstances where the MP01 Loan was not documented and the arrangement existed entirely within Mr Dunne's mind, it is unclear what the proposed terms of the loan were, including the duration and repayment frequency of the loan and on what basis a repayment of the loan could have been demanded.

Pleash v Bezel Pty Ltd

At a glance

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Before

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Judgment (77 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (12)