Ross (Liquidator) in the matter of Print Mail Logistics (International) Pty Ltd (In Liq) v Elias

Grounds 1 to 3 8 Grounds 1 to 3 of the Notice of Appeal concerned the first issue identified above, in relation to which the primary judge found that the appellants failed to establish the existence of the Armstrong Agreement. 9 As to this, the primary judge made the critical finding at [76] of the reasons that: ... the Liquidators have failed to adduce the evidence necessary to establish facts sufficient to justify the drawing of the inferences necessary to discharge their onus to prove on the balance of probabilities that Mr Elias and Armstrong entered into the Armstrong Agreement on or about 14 July 2015 pursuant to which Armstrong allegedly loaned $100,000 to Mr Elias. 10 The reasons for making the finding referred to in [76] are found in [17] to [75] of the reasons. 11 Except for ground 3(a), grounds 1 to 3 are all directed to a complaint that the primary judge failed or refused to make a particular finding which the appellants had contended for below, but do not identify an error as such. Ground 3(a) states that the primary judge erred in drawing the inference arising from the failure by the appellants to call Ms Hutson at the trial that Ms Hutson's evidence would not have assisted the appellant's case. 12 The appellants' case below was that, on 14 July 2015, Mr Elias in his personal capacity entered into a loan agreement with Armstrong under which Armstrong agreed to lend him $100,000. Three versions of a document were in evidence below which was called the "Unsecured Loan Agreement". Only one of these versions appeared to have been signed by Ms Hutson, Mr Elias and Ms Greaves (whose names appeared on the execution page which is reproduced at [32] of the reasons). 13 From [27] to [32] of the reasons, the primary judge reviewed and analysed the differences between the three versions of the document said to be the Armstrong Agreement. None of this analysis is the subject of particular complaint by the appellants on this appeal. 14 At [49], the primary judge made observations about certain matters which he regarded as important. One of these was that, despite the connection between Ms Hutson and the appellants (which connection was the subject of the appellants' own evidence at trial), Ms Hutson did not give evidence at the trial. The primary judge also observed that the appellants had not called "any other former officer or employee of Armstrong" to give evidence about the document record system operated by Armstrong, including the significance of bar codes that appeared on the top of the first and second version of the alleged agreement. The appellants do not appeal against the findings by the primary judge in [49] of the reasons. This is so notwithstanding that [49] identifies matters which the primary judge regarded as important and which formed some of the reasons of the primary judge for the critical finding in [76] of the reasons. 15 From [33] to [36] of the reasons, the primary judge addressed the evidence of Mr Elias, one of the people alleged to have signed the document. The evidence of Mr Elias was given by an outline of evidence and also orally at the trial. The appellants rely on paragraph 62 of the outline of evidence of Mr Elias, which is set out in [19] of the reasons. However, Mr Elias gave evidence that he did not believe that he actually signed the document. At [70], the primary judge stated that he accepted the evidence of Mr Elias. At [72], the primary judge explained why he did not accept the appellants' submissions that he should reject Mr Elias' denials concerning the Armstrong Agreement. This included observations as to Mr Elias' demeanour in the witness box, which findings are not challenged on this appeal. This is so notwithstanding that acceptance of the evidence of Mr Elias, including by reason of observations made of his demeanour as a witness, formed part of the reasons of the primary judge for the critical finding in [76] of the reasons. 16 From [37] to [48] of the reasons, the primary judge addressed the evidence of Ms Greaves, a solicitor and one of the people alleged to have signed the document. The evidence of Ms Greaves was given both by an outline of evidence and also orally at the trial. At [42], the primary judge referred to the evidence of Ms Greaves that she had no recollection of signing any of the three copies of the agreement. At [38], the primary judge referred to the evidence of Ms Greaves that she never writes her name with a hyphen between the word 'Anne' and the word 'Greaves'. 17 At [39], the primary judge referred to the evidence of Ms Greaves that: Further, I am very familiar with Jennifer Hutson's hand writing and the hand written words stating "MARY-ANNE-GREAVES" and 'MARY-ANNE GREAVES" appear to be Ms Hutson's hand writing. … I recall that at some date in or about July 2016 Jennifer Hutson requested and arranged to meet me at the coffee shop near my office and asked me to sign a number of documents. I do not recall what documents they were now and she effectively placed them before me and demanded that I sign. Regrettably I did affix my signature to a number of documents without first enquiring as to their purpose. I believe that there is a possibility that if my original signature is shown to be on any of the documents as "MG1", "MG2" or "MG3" then quite possibly they were procured this way. 18 At [43], the primary judge set out some of the oral evidence of Ms Greaves at the trial including the following: And you would have understood, as a solicitor practicing in compliance, the importance of properly witnessing documents?---Yes. And you would have understood that it would have been a breach of your ethical obligations if you were to witness a document not in the presence of the deponent or the person executing it. That's correct?---Yes. And can I suggest to you that that's something that you would not have been likely to do?---You can suggest it, but at the time when Jenny came to meet me in 2016, I was very vulnerable and in a very bad way. So it was possible I did do something like that. 19 At [74(a)], the primary judge also referred to his observation of Ms Greaves as being ambivalent when she made certain concessions during her oral evidence. 20 The findings made by the primary judge concerning the evidence of Ms Greaves are not challenged on this appeal. This is so notwithstanding that they formed part of the reasons of the primary judge for the critical finding in [76] of the reasons. 21 Mr Elias gave evidence that Ms Hutson was alive and living in Brisbane (at [49]). He also gave evidence that it was Ms Hutson's handwriting on the documents (at [35]). 22 In relation to the failure to call Ms Hutson in relation to the three versions of the alleged agreement, the primary judge stated at [70] and [71]: ... The evidence of Mr Elias, which I accept, is that that handwriting is Ms Hutson's. That being so, if she had given evidence at the trial, Ms Hutson should have been able to confirm that she wrote that date on the document on or about 14 July 2015 and she should have been able to describe the circumstances in which she came to do that. In her absence, I infer that her evidence on these matters would not have assisted the Liquidators' case. The second concern relates to the discrepancies in that copy of the agreement highlighted by Ms Greaves in her evidence … They include the absence of her personal stamp verifying her signature and the fact that her name is instead written on that copy in Ms Hutson's handwriting. … Accordingly, if she had given evidence at the trial, Ms Hutson should have been able to explain some, or all, of these discrepancies. That includes the circumstances in which she came to sign that third copy of the agreement. Again, in her absence, I infer that her evidence on these matters would not have assisted the Liquidators' case. … 23 The approach taken by the primary judge, being to infer that the evidence of Ms Hutson would not have assisted the appellants' case insofar as it sought to rely on the three versions of the alleged agreement, was an orthodox application of the rule in Jones v Dunkel (1959) 101 CLR 298. No error has been shown by the appellants in relation to the inferences drawn by the primary judge by reason of their failure to call Ms Hutson in this regard. 24 As well as relying on these documents, the appellants relied at trial upon the following records and documents to establish that Mr Elias entered into the Armstrong Agreement: (a) the PML ledger for the period 1 July 2015 to 31 July 2015 which recorded a credit of $100,000 on 14 July 2015, together with the notation "funds received from Nigel Elias"; (b) the Australia and New Zealand Banking Group Limited bank statement relating to PML's bank account which showed a credit of $100,000 on the same date. 25 The PML ledger and PML bank account statement showed a payment in of $100,000. While it is correct that a notation on PML's ledger record states "funds received from Nigel Elias", the payment originated from Armstrong (one of the Hutson entities) and not from Mr Elias. 26 The primary judge considered that the PML ledger and PML bank account statement did not evidence a loan payment by Armstrong to Mr Elias for the reasons explained in [65] - [67]. 27 One reason given for reaching this conclusion was that no direction had been given by Mr Elias to Armstrong to transfer the loan funds to PML. The unchallenged reasons at [66] state that: The possibility that the payment was made by direction can also be put aside for a number of reasons. First, no such direction was pleaded by the Liquidators in their 4FASC. Secondly, and in any event, Mr Elias denied any such direction existed … Thirdly, and most importantly, the Liquidators have not adduced any evidence that any such direction was ever given. 28 Another reason for reaching this conclusion was given at [67]: …as the principal of Armstrong in July 2015, Ms Hutson was very likely to be able to explain why Armstrong transferred $100,000 to PML on 14 July 2015 such that it could be inferred that the records described above were connected with that transaction and, therefore, the loan Armstrong allegedly made to Mr Elias as reflected by the Armstrong Agreement. Put differently and expressed in Blatch terminology, that evidence was peculiarly within Ms Hutson's power to produce and it was plainly pertinent to the question whether the Armstrong Agreement was made as the Liquidators allege and the defendants deny. 29 The reference by the primary judge to Blatch was a reference to Blatch v Archer (1774) 98 ER 969. At [60], the primary judge stated: In Chetcuti v Minister for Immigration and Border Protection (2019) 270 FCR 335; [2019] FCAFC 112 (Chetcuti), the majority of the Full Court (Murphy and Rangiah JJ) identified the connection between the rule in Jones v Dunkel and Blatch in the following terms (at [89]): The rule in Jones v Dunkel has been described as an application of the principle in Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 that, "All evidence is to be weighed according to the proof which was in the power of one side to have produced, and in the power of the other to have contradicted". …. 30 No error in the primary judge's reasons has been demonstrated because, at the least: (a) the payment was made by Armstrong to PML, not Mr Elias; (b) the finding that the payment was not made to PML pursuant to a direction by Mr Elias to Armstrong has not been impugned on this appeal; (c) Ms Hutson was not called to give evidence at trial to explain the connection between the payment to PML and the Armstrong Agreement (being an alleged loan by Armstrong to Mr Elias). 31 In conclusion and for the reasons set out above, the critical finding in [76] of the primary judge's reasons was premised on numerous findings contained in [17] to [75] of the reasons. Only some of these findings have been challenged and of those which have been challenged, no error in the primary judge's reasons has been demonstrated. 32 As such, grounds 1, 2, and 3 must fail.

Grounds 4 and 5 33 Having regard to their content, grounds 4 and 5 of the Notice of Appeal are premised on success in appeal grounds 1 to 3. Further, the appellants submitted that these grounds of appeal follow from the resolution of grounds 1 to 3. 34 As grounds 1 to 3 have not been made out, grounds 4 and 5 must also fail. 35 Further, ground 4 of the Notice of Appeal, to the extent that it might not be dependent upon grounds 1 to 3, is a contention that the primary judge erred by failing to find that on 29 July 2015, PMLI became liable for the personal debts owed by Mr Elias to Armstrong. 36 Relevantly to this appeal, the critical findings of the primary judge in relation to the second issue at the trial appear at [93] of the reasons. This second issue can be disposed of relatively briefly. First, to reiterate, I accept Mr Pereira's evidence … that the $100,000 loan mentioned in the Funding Table was a loan that PML owed to Armstrong dating from May 2014, as recorded in PML's books of account. Accordingly, even if the Armstrong Agreement was made between Armstrong and Mr Elias and, as a result, Mr Elias owed $100,000 to Armstrong, that loan is not the loan mentioned in the first item of the Funding Table. It necessarily follows that, as a result of the transactions associated with the Wellington Agreement, PMLI did not accept Mr Elias' personal liability for that loan, even assuming it existed. 37 As part of the findings in [93], the primary judge accepted the evidence of Mr Pereira. At the trial, the appellants submitted that Mr Pereira should be accepted as a credible and reliable witness, and the primary judge accepted this submission at [73] of the reasons. He also referred to Mr Pereira's evidence as cogent at [87] of the reasons. The appellants do not challenge these findings on this appeal. 38 As part of the findings in [93], the primary judge also accepted the evidence of Mr Elias in relation to whom he had made credit findings, which findings are not sought to be impugned on this appeal. 39 The appellants have failed to demonstrate an error by the primary judge in relation to the critical finding which appears at [93] of the reasons. It follows that ground 4 must also fail for these additional reasons.

Grounds 6 to 9 40 Grounds 6 to 9 of the Notice of Appeal relate to the critical finding of the primary judge at [126] that "I do not consider incurring the Wellington loan debt, and entering into the Wellington Agreement transaction" had the pleaded effect on PMLI's solvency (that is, that it became insolvent by reason of its entry into the Wellington Agreement): [100] and [102]). 41 One of the reasons that the primary judge did not consider that entry into the Wellington Agreement affected the solvency of PMLI was (at [126]): To begin with, the Wellington loan debt was not an additional debt for PMLI but rather one that replaced the debt that it already owed to PML. Unsurprisingly, therefore, the evidence of Mr Pleash, one of the Liquidators, Mr Pereira, one of the defendants, and both expert witnesses called by the parties was variously to the effect that PMLI owed approximately the same level of debt after it incurred the Wellington loan debt and that there was no material change to its balance sheet. 42 The appellants did not challenge the finding in [126] but, by ground 7 of the Notice of Appeal, contended to the effect that, notwithstanding that one liability was replaced with another, there was a material change to the affairs of PMLI in that the Wellington loan now had a fixed repayment date (being 31 January 2016) rather than no fixed repayment date and this made a material difference to PMLI's solvency as at 29 July 2015. 43 At [128] of the reasons, the primary judge considered the fact that the date for the repayment of the Wellington loan debt was fixed at 31 January 2016. However, this was done in the context of considering whether there was a reasonable ground to suspect that, by entering the Wellington Agreement, PMLI would become insolvent (at [127]) rather than as a basis for concluding that PMLI became insolvent in fact by reason of the entry into that transaction. 44 Similarly, the appellants' outline of submissions filed 18 October 2021, at paragraph 20, developed ground 7 of the Notice of Appeal by reference to the fact that, as the loan now had a fixed repayment date, the primary judge erred in finding that there ought not to have been a concern about insolvency at the time of the entry into the Wellington Agreement. 45 During the hearing of this appeal, counsel for the appellants submitted that the expert called by them at the trial had expressed an opinion to the effect identified in ground 7, and that therefore the primary judge had (in effect) erred in failing to accept that opinion. However, the reason that that this was an error was not further developed by the appellant. In any event, as discussed further below, the primary judge did not accept the evidence of the appellant's expert as to solvency and this decision has not been shown to be incorrect. 46 As to the issue of solvency generally and the failure by the primary judge to "consider or adopt the reasoning of" the appellants' expert in relation to solvency, which is raised by grounds 6 and 9 of the Notice of Appeal, all parties accepted below that PMLI depended on its parent company, PML, for financial support. This meant that, if PMLI could not repay the Wellington loan at maturity from its own resources, it would be reliant on PML to make good any shortfall. 47 There was no challenge by the appellants to the summary of the main legal principles by the primary judge which included at [101(a) - (c)] that: (a) whether a company is solvent is a question of fact to be ascertained from a consideration of its financial position taken as a whole and having regard to commercial realities; (b) in considering the commercial realities, the Court can consider whether resources other than cash are realisable by sale or borrowing with or without security and the availability of funds provided by other companies in a group of companies; (c) when a company is relying on financial support from a third party to enable it to pay its debts, it must have a "degree of assuredness" of that support. That degree of assuredness is more certain where the third party is compelled to provide the financial support, for example, where it has provided a guarantee in respect of its obligation. 48 In this case, PML, the parent company of PMLI, had guaranteed the Wellington loan in full. As the primary judge stated in relation to the guarantee at [129]: This gave a high level of assuredness to PMLI that PML would continue to provide the financial support to it that it had in the past and that it would, in particular, do so in respect of the Wellington loan debt. 49 Further, the evidence before the primary judge, which was accepted by him at [130], was that the commercial reality was that PML would have met its obligations under the guarantee because PML was the operating company for the whole PML group of companies and failure to comply with the guarantee risked the existence of the whole corporate group. This was regarded by the primary judge as reinforcing the level of assuredness which was provided by the guarantee. This finding is not challenged on this appeal. 50 As to whether PML had the ability to provide the requisite financial support to PMLI, the primary judge found at [133] that PML could make sufficient funds available to PMLI based on funds available from five different sources. In making that finding, the primary judge accepted the evidence of Mr Elias and Mr Pereira which was to the effect that, in or about the period from July 2015, including January 2016 and beyond, PML could have reasonably expected funds to become available to it from the following sources: (a) the imminent reduction in its lease guarantee with its lessor of approximately $50,000; (b) the negotiated increase in its overdraft facility with the CBA of approximately $70,000; (c) making use of the periodic cash flow fluctuations available from its business activities, noting Mr Cotter's evidence that in January 2016 that amounted to a sum in excess of $200,000 and that PML had an estimated annual turnover at the time of $753,000 EBITDA and $525,000 EBDA; (d) securing finance against some or all of the equipment which it owned, noting Mr Cotter's evidence that between $50,000 and $250,000 may be available from this source; and (e) raising short term unsecured loans from the pool of investors and shareholders as outlined by Mr Elias. 51 Only one of these sources (being the last one) is challenged by the appellants on this appeal on the basis that it was not "compelling in any meaningful way" because none of the pool of investors and shareholders were called by the respondents to be witnesses at the trial. 52 However, Mr Elias gave evidence at trial to support a finding that this was a potential source of funds (as it had been in the past). Either no objection was taken to this evidence by the appellants at the trial or, if objection was taken, there is no appeal from any ruling against the appellants as to the admission of this evidence. 53 The evidence of Mr Elias about this issue is addressed at [108] and [109] of the reasons. The primary judge accepted this evidence even though the investors were not themselves called as witnesses. It was plainly open to the primary judge to do so. No error has been identified by the appellants in relation to the approach taken by the primary judge. 54 Based on these identified sources of funds, the primary judge found at [134] and [136] that PML had the ability to provide financial support up to the full amount of the Wellington loan of $420,000. Having regard to the quantum of the amounts identified in [133] of the reasons and referred to above, and with respect to the primary judge, that conclusion was undoubtedly correct. 55 This is so even if the fifth source of funds (being the source of funds from informal investors) is removed from the list. 56 At [135], the primary judge considered the assets which PMLI itself had available to satisfy the Wellington loan and, taking into account these assets, made the finding that the level of likely financial support required from PML would be between $128,000 and $178,000. In making this finding, the primary judge had regard to the evidence of the experts called by the parties. 57 At [136], and taking into account the sources of funds identified in [133] of the reasons, the primary judge concluded that: To sum up, whether the financial support that PMLI required from PML in this period was $128,000, $178,000 or $420,000, I consider this evidence shows that PML had the ability to provide it. This conclusion means that PML would have had the capacity to avoid PMLI defaulting on the payment of the Wellington loan debt entirely, or if not, to itself meet any demand under the guarantee, assuming that demand was issued shortly after PMLI's partial default. ... 58 Having regard to the quantum of the amounts identified in [133] of the reasons and referred to above, and with respect to the primary judge, that conclusion was also correct. 59 The appellants have not demonstrated any error by the primary judge in relation to the findings in [135] and [136] of the reasons. 60 The asserted error because of the primary judge's failure to adopt the reasoning of the appellants' expert in relation to the solvency of PMLI (ground 9) must also fail. The primary judge stated at [138] that he did not gain a great deal of assistance from the appellants' expert because, among other things, she: (a) disregarded the significance of the guarantee which PML provided to Wellington, contrary to the conclusions reached by the primary judge as to the relevance of that guarantee given by PML when considering the solvency of PMLI as discussed above; (b) relied on PML being in financial distress in the apposite period in 2015. As to this, the primary judge accepted the evidence of Mr Pereira that PML was not in financial distress in or about July 2015 at [73] of the reasons and there was no appeal from this finding; and (c) did not take sufficient account of the range of sources of funds available to PML as outlined in [133] of the reasons, which demonstrated that not only was PML willing to pay the debt owed by PMLI, if necessary, but that it was able to do so. 61 No error has been shown by the appellants in relation to the primary judge's reasons at [138]. 62 For these reasons, grounds 6, 7 and 9 must fail. 63 The final ground of appeal which falls to be considered is ground 8 which complains that the primary judge failed to identify that there were no reasonable grounds and could be no reasonable expectation to believe that PMLI could rely on PML or other lenders for the financial support necessary to satisfy the Wellington loan debt. 64 However, this ground of appeal cannot be made out in circumstances where: (a) the Wellington loan debt replaced another debt. This meant that PMLI owed approximately the same level of debt after it incurred the Wellington loan debt and that there was no material change to its balance sheet. This was common ground at the trial: see [126] of the reasons; (b) it was common ground at the trial that PMLI was solvent immediately before the Wellington loan debt was incurred: see [127] of the reasons; (c) PML provided a guarantee and PML had the ability to meet the debt owed by PMLI if necessary (and likely would do so because of its position in the corporate group). The primary judge found that this gave a high level of assuredness to PMLI that PML would continue to provide the financial support to it that it had in the past and that it would, in particular, do so in respect of the Wellington loan debt. Contrary to paragraph 21 of the appellants' outline of submissions, it was relevant and in accordance with the authorities cited by the primary judge (to which no challenge has been raised by the appellants) for the primary judge to have regard to the fact that PML had provided the guarantee. 65 For these reasons, ground 8 of the Notice of Appeal also fails.

CONCLUSION 66 It follows that the appeal should be dismissed. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Greenwood, Anderson and Downes.

SCHEDULE OF PARTIES QUD 158 of 2021 Respondents Fourth Respondent: ADRIAN JOSEPH PEREIRA