Russo v Resource Developments International Pty Ltd

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

1947/02 - RUSSO v RESOURCE DEVELOPMENTS INTERNATIONAL PTY LTD 2603/02 - RUSSO v RESOURCE DEVELOPMENTS INTERNATIONAL PTY LTD JUDGMENT 1 HIS HONOUR: This judgment is in respect of two cases heard together because they involve some common and some overlapping questions of fact. 2 The plaintiff in 1947/02 is Vincenzo Russo to whom I will refer as "Enzo". The plaintiff in 2603/02 is his son, Marcello Russo ("Marcello"). Mr F G Lever SC appeared for Enzo, and Mr Raine for Marcello. The two plaintiffs are not on speaking terms. I am referring to these gentlemen by their first names, not intending to be disrespectful, but in order to avoid confusion. 3 There are five defendants, the first defendant, Resource Developments International Pty Ltd ("Resource") and the fourth defendant ("Rafidi"), appeared by Mr B W Rayment QC and Mrs P Conway. The second defendant, Premier Resources Ltd ("Premier") and the third defendant, Hy-Tec Industries Pty Ltd ("Hy-Tec"), appeared by Mr Kaye. The fifith defendant, Mr Costa, appeared by Mr Seton SC and Mr J Hennessy. 4 Up until January 2001, the two plaintiffs were equal shareholders, though probably with the intervention of family trusts, in Mac-Cotta Pty Ltd, ("Mac-Cotta"). Mac-Cotta was the holding company of various wholly owned subsidiaries including Kurnell Recycling Park Pty Ltd ("KRP") which operated a recycling plant at Kurnell. 5 The operation being carried on by KRP could basically be described as breaking up waste concrete into its component parts of cement, sand and aggregate, and then reselling those products. This was known colloquially as "the recycled concrete business". 6 By his statement of claim, Enzo says that by agreement made 10 April 2001,(referred to in these reasons as the "SSA") he and his company agreed to sell his shares in Mac-Cotta to Resource for $410,000. He acknowledges receipt of the $10,000 deposit, but says that the balance has never been paid. Further, he says that there have been breaches of the agreement, namely: (a) he was not given cartage rights as promised; and (b) he was not released from his personal guarantees given with respect to KRP and other trading subsidiaries. He also claims that Rafidi, and in some respects, Costa, on their own behalf and on behalf of Resource, Premier and Hy-Tec, made false and misleading representations under the Trade Practices Act 1974. 7 I should note that with respect to all pleadings referred to in these reasons the reference is to the most recent amended version. 8 In these reasons I will deal with Enzo's claims under the headings put in Enzo's counsel's written submissions, though, not in the same order those headings were proffered. 9 Counsel made the clear submission that primarily Enzo seeks an order that the defendants specifically perform the SSA by discharging and releasing him from his guarantees and mortgage obligations. 10 Thus, I will deal with Enzo's claims under the following heads:

E1. Is Enzo entitled to specific performance of the SSA?

E2. Is Enzo entitled to damages for breach of the SSA for: (a) Non payment of the first instalment of purchase price? (b) Failure to be indemnified against guarantees? (c) Non reimbursement of payment of stamp duty on the SSA?

E3. s Enzo entitled to damages pursuant to the Trade Practices Act or Fair Trading Act 1987?

E4. Is Enzo entitled to be paid $61,723.50 by Hy-Tec for unpaid invoices annexed to his third affidavit, PA25?

E5. Is Enzo entitled to be paid $1,017,182.90 from all of the defendants for the unexpired term of the 5 year distribution services deed dated 10 April 2001? 11 As to Enzo's claims, the first and fourth defendants deny them generally and further say that SSA was rescinded for Enzo's misrepresentation. The fifth defendant joined in that defence. 12 The second and third defendants deny the claims generally and say that the SSA never became a binding agreement, otherwise generally they say much the same as the first and fourth defendants. 13 I will give more details as to the defences when dealing with the individual claims. 14 There are four cross claims in Enzo's suit, which will be considered as heads E6 & E7,viz:

E6. The first, second and fourth cross claims to set aside the heads of agreement of 12 January 2001 and/or the SSA under the Trade Practices Act or for damages under that Act for breaches of warranties in the heads of agreement of 12 January 2001.

E7. A third cross claim by the second and third defendants against the other defendants for statutory or equitable contribution. 15 By his statement of claim, Marcello makes five basic claims:

M1. He sues for breach of an agreement made on 12 January 2001 which he says was partly oral and partly written by which he says Premier was to pay $1.5 million to acquire the subsidiaries of which sum Enzo was to receive $400,000 and Marcello $1.5 million and that Enzo and Marcello would be released from their personal guarantees and be given other benefits.

M2. Equitable compensation with respect to a joint venture between Marcello and Premier in which Premier breached its fiduciary duties to Marcello.

M3. Damages for misrepresentations under the Trade Practices Act.

M4. A declaration that Marcello has the benefit of certain estoppels; and

M5. Damages for breach of duty by a solicitor in the case of Mr Costa. 16 In Marcello's claim, the first and fourth defendants took up a similar line of defence emphasizing that there had been breaches of mandatory provisions 4 and 5 and clause 4 of the heads of agreement of 12 January 2001. The second and third defendants took a similar line. Again, there were three cross claims in similar terms to those filed in Enzo's claim. 17 I have considered whether it is better to give one judgment to cover both sets of proceedings or separate judgments in each case. In view of the commonality of witnesses and overlap of issues, the former course is preferable.

18 However, the issues divide into matters raised under general principles of equity and those under the Trade Practices Act (under which head I include claims under the Fair Trading Act). Again there is overlap. However, no-one presented any arguments on the doctrine of statutory pre-emption; see Graham Barclay Oysters Pty Ltd v Ryan (2002) 77 ALJR 183, 226 [227-8]. I will deal with the non Trade Practices issues first. 19 After considering all the issues I will need to make decisions as to the outcome of the case. I will deal with these issues as: Z1. Assessment of credit and demeanour; Z2. Miscellaneous Observations; Z3. Costs; Z4. The outcome of the litigation. 20 Before listing and considering those issues, I need to consider the more significant documents and make some comments on them. 21 On 12 January 2001, some of the parties entered into heads of agreement which is document PX65-67: "HEADS OF AGREEMENT PREMIER RESOURCES LIMITED (PRL) OR it's NOMINEE AND KURNELL RECYLCING PARK and Manzel EQUIPMENT Pty Limited (KRP)

This agreement dated 12/1/2001 between Premier Resources Limited in this agreement known as PRL and (Manzel Equipment Pty Ltd and Kurnell Recycling Park Pty Limited) in this agreement known as KRP.

PRL is a producer and marketer of cement, concrete and aggregates. KRP is a producer and reseller of recycled aggregates.

KRP will enter into agreement with PRL, providing PRL the right to market KRP's products exclusively. KRP will be free to market 100,000 tonnes plus or minutes 10% of road base per annum; KRP is also free to market as much sand as it can in the open market.

PRL will enter into agreement with KRP to purchase concrete aggregate and sand from KRP to PRL's specification in line with the enclosed budget prepared by PRL and KRP.

PRL will pay $9.30 for aggregate ex the bin, $6.50 for blended sand ex the bin, crusher dust at $5.00 ex the bin. Should the cost of sand purchases increase from the rates entered into the enclosed budget then the parties shall adjust the selling price of sand accordingly.

PRL and KRP will as part of this agreement agree to a rise and Fall clause based on Australian Bureaux of Statistics index 6407.0 number 6 'Selected Major Building Materials', 'Sydney', 'Ready-Mixed Concrete'.

Mandatory to this agreement KRP and its directors and share-holders will: 1. Enter into a 20-year lease arrangement with its landlord, providing PRL with long-term security, for the supply of products and materials. 2. In case of defaulting on the lease KRP is to include a clause in their lease which allows PRL to enter and operate the site and all equipment necessary to run the operation. 3. Maintain quality standards in manufacture of concrete aggregates and sand to Australian STD for concrete and PRL's standards as expressed to KRP from time to time. 4. Maintain production of recycled concrete aggregates for PRL's use at a minimum rate of 140 tonnes per hr 15 hrs per day 205 days per annum. 5. Provide to PRL proof of source or supply of raw material of a minimum 400,000 tonne of raw product pr annum. 6. Provide PRL with an option to purchase 50% of KRP for $1.5M. 7. Transfer all rights titles and interests in Merkado Pty Ltd, Sandy Hollow Pty Ltd, Maccotta Pty Ltd, Concrete Demolitions Pty Ltd, Emplas Pty Ltd and Sabaudia Pty Ltd, to be included as part of the 50% purchase of KRP.

Upon KRP fulfilling the mandatory conditions above within 3 months of the date of this agreement PRL will subject to final Board approval from PRL: 1. Secure a release of personal guarantees by Vincenzo Russo to any financial institutions in KRP. 2. PRL to guarantee KRP on their long term lease with their landlord. 3. The price of aggregate shall increase by $1.00 to $1.30, within 6 months of this agreement should PRL fail to secure a release of the guarantees in 1 above. The price will revert back to $9.30 upon release of this guarantee. 4. Purchase 50% of KRP including all of its [sic] for $1.5M.

KRP acknowledges the following: 1. It will maintain all of its lease conditions, 2. It will follow all EPA and OH&S guidelines as set by statutory authorities and PRL policy. 3. KRP warrants that it has no current fines or warnings from any statutory authority. 4. KRP warrants that it is presently trading solvently. 5. KRP and its directors and share-holders warrant that all goodwill plant and equipment including statutory licences leases and agreements are a part of this agreement. (asset list enclosed)." [Signature clauses then follow] 22 The second principal document is a deed made on 10 April 2001, the parties to which are Vincenzo, Mac-Cotta Pty Ltd and Merkado Pty Ltd as vendors and Resource as purchaser. 23 The deed in clause 3 sets out the purchase price as $400,000 for the purchase of the vendors' shares. The purchase price is to be paid as to $10,000 deposit and the balance by equal payments of $100,000 on 1 February 2002, 2003, 2004 and 2005. Clause 6 provides that the agreement constitutes the entire agreement between the parties. Although he was not named as a party, Marcello actually executed the deed as can be seen from PX325. 24 On the same day KRP entered into a distribution services agreement with Enzo for cartage at the rate of $8.00 per tonne from Kurnell to Ingleburn and Prestons. 25 In his principal affidavit, Enzo said that he first became aware of Mr Sturgiss and Mr Proctor in early 1999 when he was introduced to them by Marcello. Messrs Sturgiss and Proctor made it plain that they were looking for a batching plant site in that vicinity. They also indicated that they were very interested in the recycling process as a source of obtaining materials from concrete at low cost. KRP commenced resupplying the cycled aggregate to Hy-Tec in mid-1999. Enzo said that in early 2000 Marcello introduced him to Rafidi and Costa. Costa introduced himself as a director of Hy-Tec and solicitor for that company. 26 On 12 December 2000 in Marcello's office at the Kurnell site, there was a meeting with Rafidi, Sturgiss, Proctor and Victor Kikalis ("Kikalis"). Rafidi said that, "We are offering to buy your shareholding and are committed to providing the funding necessary to complete the research and development to recycle demolition concrete for the manufacture of concrete. We are prepared to put in about $1.5 million dollars." Enzo said, "That is encouraging. I have decided that I will get out and leave Marcello with the remaining 50% … ". Mr Sturgiss said that Kikalis was their financial expert, "He has looked at the figures and is confident that KRP can be refinanced without requiring any additional security. We will be able to take over your obligations under the guarantees. You have nothing to worry about." 27 On 12 January 2001, Enzo had a conversation with Rafidi at Hy-Tec's office at Auburn. There was a conversation about the business and about its production during which Enzo says he indicated that the plant would not produce the quantity of material envisaged by Rafidi under the existing development approval. Rafidi allegedly said, "I am aware of this. It is our problem to get a consent for the increased amount of production we want." Enzo said he had a copy of the heads of agreement document, but did not know why the agreement was with Premier Resources. Rafidi said, "Premier Resources is a holding company. It owns Hy-Tec. That provides better protection for you." Enzo said that he made it clear that he wanted $400,000 and that the $1.1 million balance of purchase price can be spent as Marcello recommends, so long as the Bank would lift his guarantees. He says that Rafidi then made some amendments to the heads of agreement, Marcello was called into the room and the document was signed. 28 At the end of January or beginning of February there was a meeting between Marcello, Costa, Rafidi and Enzo at the bar of the Wentworth Hotel. At that meeting Rafidi said, "We want to resolve the basis on which we are going to buy your shares". Enzo said, "Under the heads of agreement you are to pay 1.5 million dollars for half of KRP. As you know I want $400,000 for my shares my guarantees release and a job." Rafidi said, "We agree to buy your shares for $400,000. We will also release the guarantees." There was then some discussion about the job and agreement on the rate to be charged per tonne for Enzo to carry aggregate etc. 29 About a week after this Enzo received the draft sale of shares agreement. 30 On 11 February 2001, Costa, Rafidi and Enzo met at a café in Neutral Bay. There was then agreement on the rate per tonne for the cartage contract. 31 As from 12 February 2001, Enzo ceased all involvement in the management and administration of the Kurnell recycling group of companies. He treated Hy-Tec as the proprietors and himself as a mere carter. 32 Documentation had not been finalised by 5 April and on that day Enzo went to the site and turned trucks away. This brought a telephone call from Costa promising that exchange would take place on the next Monday. On 10 April 2001 Enzo attended his solicitor's office and signed the share sale agreement and the distribution deed and resigned as a director of each of the Kurnell recycling group of companies. 33 By August 2001 relations had soured. Hy-Tec was not paying Enzo for his cartage, nor had the guarantees been released. Later some of the creditors made demands on Enzo under his guarantees. 34 Marcello says that he told Messrs Proctor and Sturgiss that he was looking for a partner to develop the recycled concrete business and continued in conversation with them. In mid-April 1999, they introduced Rafidi and Costa. At one stage, Costa asked to look at the lease, the development approval and the EPA approval. He handed Mr Costa a copy of the lease. Mr Costa remarked that it appeared to be a licence and Marcello replied that whilst it was called a licence he had been advised that it was in law a lease. 35 Marcello says that he obtained a copy of the development approval and the EPA approval on 27 September 1999 and went down to the Auburn office of Hy-Tec and handed them to Sturgiss and Rafidi. 36 In November/December 1999 Sturgiss said that there were some problems with the DA as the tonnages aren't right and they would have to do an environmental impact study to get an upgrade. In February 2000 he met with environmental consultants engaged by Hy-Tec who said that their brief was to work on an environmental impact study leading to a DA for a batching plant at Kurnell. The consultants said they had already received a coy of the DA and EPA approval that existed from Hy-Tec. 37 Negotiations took place during the whole of 2000 during which Marcello communicated that his father would be happy with $400,000 and the purchase price should be between $1.5 to $2 million. 38 Marcello said that from September to November 2000 he was pressing for the heads of agreement to be signed because Enzo was pressing him. 39 The evidence on the other side was substantially different. I will come to the details in due course. At the moment I am merely setting the scene. 40 It seems to me that the proceedings can be best considered by first dealing in order with Enzo's claims E1- E7 in 1947/02 and then passing to consider the second set of proceedings commenced by Marcello. 41 E1. This claim, and claim E2, depend on the SSA, so that I should set out the relevant parts of that agreement before proceeding further.

42 The parties to the SSA are Enzo, Mac-Cotta Pty Ltd, Merkado Pty Ltd, all of which parties are called the vendors, and Resource Developments, called the purchaser. Clause 20 contains a personal guarantee by Iyad Rafidi, though he has only signed underneath clause 20 of the document, that is, the clause which contains the guarantee. There is also a reference in clause 22 to Marcello and in December 2001 Marcello did sign the document as a deed. 43 By clause 3(1) of the SSA, "the Vendor agrees to sell and the Purchaser agrees to purchase the Vendor's (number and class) shares in the Company for the price of Four hundred thousand dollars ($400,000.00)." Clause 2 says "The purchase price shall be paid as specified in clauses 4 and 5." Clause 5 provided that apart from the deposit the purchase price should be paid in equal instalments of $100,000 each in arrears, the first payment to be made on 1 February 2002. 44 Clause 6 is headed "Entire Agreement" and provides:

"(1) This Agreement constitutes the entire agreement between the Vendor and the Purchaser relating to the sale of shares.

(2) The parties have not entered into and are not bound by any collateral or other agreement apart from this Agreement." 45 Clause 7 involved warranties which only went to the title to the shares and that the vendor was not bankrupt. Three pages of other warranties had been deleted before the document was signed. Clause 7(6) provided: "(6) If the Purchaser before completion discovers a breach of any warranty contained in this Agreement which would render the Vendor liable for debt or for damages exceeding Five thousand dollars ($5,000.00) or would reduce the value of the Company's business or any of the company's assets or increase its liabilities by an amount exceeding Five thousand dollars ($5,000.00) the Purchaser may elect: (a) to complete the purchase of shares and receive an adequate allowance on completion to remove the effect of or to compensate for the breach of warranty, or (b) to rescind this Agreement before completion of the sale." 46 Clause 7(8) provided: "(8) The Vendor warrants that: … (d) The Vendor is not bankrupt, insolvent or subject to current proceedings for bankruptcy or winding up, nor for the appointment of a receiver or other controller or administrator." 47 Clause 9 contained restraints on competition and confidential information. Clause 11(2) provided that the purchaser was responsible for the stamp duty payable on the agreement. Clause 14(1) provided: "Completion of this sale shall occur not later than 3.00 p.m. on the 1st day of April, 2001 which is the date fixed for completion, but in this respect time is not of the essence of this Agreement." 48 Clauses 16, 17 and 18 dealt with termination or rescission. Clause 20 was Mr Rafidi's guarantee. Clause 22 is as follows: "The Purchaser and the continuing shareholder (Marcello Russo) shall upon completion of this Agreement forthwith apply to refinance the Company's financial arrangements with the intention to discharge and release the Vendor's (Vincenzo Russo) securities and personal guarantees given by him in respect of plant and equipment, and the lease of the premises (excluding any responsibility the Vendor may have for the two (2) trucks the subject of the Distribution Agreement). It is the intention of the Purchaser to achieve these releases within a period of six (6) months from completion PROVIDED ALWAYS that the Purchaser, the continuing shareholder and the Guarantor shall indemnify and keep indemnified the Vendor against any recovery action taken against the Vendor in respect of these guarantees or securities to be released and further provided that this indemnity is for the period commencing from the 11th February 2001 until the release of the securities and personal guarantees." 49 The defendants in their various sets of submissions seem to make five answers to the claim on the SSA, viz:

A. The SSA was subject to the heads of agreement of January 2001 and thus: (i) the breach of the mandatory provisions and warranty of solvency is an answer to the claim;

(ii) RDI rescinded orally the agreement through Mr Rafidi.

This argument has to meet the entire agreement clause in the SSA.

B. Alternatively, Resource was entitled to rely on misrepresentations to disaffirm the SSA

C. The SSA did not come into effect until Marcello signed it in December 2001 at which time everybody else on the defendants' side had intimated that it was not binding on them.

D. The SSA, if it were in force, was never completed, vide clause 14 and thus:

(ii) the takeover of the liabilities was never activated.

E. On the proper construction of clause 22 of the agreement there is no liability to pay out Enzo's guarantees.

F. The vendor is in breach of clause 7(8)(d) of the SSA and the relevant defendants avoided the agreement for that reason. 50 I will discuss these matters in turn.

A. Mr Rayment QC says that for Enzo to succeed under the SSA, he must avoid the warranties given by him in the heads of agreement. It is idle for him to say, as he said in the witness box, that he signed the heads of agreement under duress, or that they no longer applied because instead of $1.5 million under the heads of agreement, he was only to get $400,000.

51 With respect, this is putting the cart before the horse. The first thing to establish is whether the heads of agreement were part of the SSA. 52 Mr Rayment then says that the case made by Enzo really was that although Resource was the purchaser under the share sale agreement, the real purchasers were Premier and Hy-Tec. This is consistent with Premier and Hy-Tec being the parties to the heads of agreement and again reinforces the position that the share sale agreement was intended to be subject to the conditions of the heads of agreement. 53 However, I must give considerable weight to the whole of agreement clause in the SSA. 54 Whole of contracts clauses are common enough and exclude anything which is extraneous to the written contract, though not implications arising on a fair construction of the agreement itself. The clause shows that the parties are to be bound by what is set out in the contract, but not by matters collateral; see Hart v MacDonald (1910) 10 CLR 417, 430; Mulvay v Henry Berry & Co Pty Ltd (1938) 38 SR (NSW) 389, 395. 55 There is surprisingly little material on how the court approaches a whole of the contract clause, but what there is in the same line; see eg Hope v RCA Photophone of Australia Pty Ltd (1937) 59 CLR 348, 357-8 (Latham CJ) and 363 (Dixon J) and NT Power Generation Pty Ltd v Power & Water Authority (2001) 184 ALR 481, 571. 56 The principal argument of the defendants is that the parties could not really mean an entire agreement clause because when one looks at clause 14, one can see that they nominated completion for 1 April, yet the agreement was only signed and dated on 10 April. I do not consider that that is sufficient to discount the effect of the entire agreement clause. Indeed, as Mr Lever SC for Enzo points out, there is ample room for clause 14 to operate even if one just reads out 1 April. 57 I acknowledge that these are influential arguments. However, there is so much inconsistency in this case that I do not consider that they are sufficient to outweigh the other considerations in the case. 58 It seems to me that when parties have gone to the trouble of preparing a deed, the most solemn instrument that parties can put their hands and seals to, have on each side retained solicitors to advise them on the form of the document and then have sealed a document with an entire agreement clause, it does need quite a considerable amount to displace the view that they mean that the document includes their entire agreement. 59 Accordingly, I reject the submission that the contents of the heads of agreement of January 2001 are to be read into the SSA. This means that any warranties that are included in the heads of agreement do not have any impact on the operation of the SSA. 60 B. The misrepresentations relied on are those in the heads of agreement. The fact that I have held that the warranties in the heads of agreement were not terms of the SSA, does not affect the possibility that the statements in those warranties were representations which induced the SSA. 61 I have already held that the heads of agreement were not incorporated into the SSA. They could, however, amount to misrepresentations which induced the SSA which would be a ground for setting it aside or rescinding it, and likewise they could, by virtue of the operation of the Trade Practices Act or the Fair Trading Act, give rise to a statutory claim to set the SSA aside. The misrepresentations could also be a ground for declining to grant specific performance. 62 There is no doubt that the heads of agreement of January did contain a provision that "mandatory to this agreement" Manzel Equipment Pty Ltd and Kurnell Recycling Park Pty Ltd therein described as KRP and its directors and shareholders will maintain certain production standards. Enzo was a director of Manzel Equipment and Kurnell Recycling at the relevant time and signed the heads of agreement. The other party was Premier Resources Ltd, the second defendant, which signed the document by Mr Rafidi. It will be remembered that the purchaser under the SSA was the first defendant, Resource Developments International Pty Ltd, a company the whole of the shares of which are owned at law by the fifth defendant Mr Costa. Resource is a shareholder in Premier; there is no other direct connection, though there is a suggestion of some trust relationship. 63 Under the general law, I would wonder very much whether in the absence of precise evidence (which I do not consider exists in the instant case, but I will analyse it shortly), if the mandatory provisions of the heads of agreement constituted a misrepresentation, they were not a misrepresentation that was made to anyone else except Premier Resources. 64 However, Mr Rayment QC and Ms Conway for Resource and Mr Rafidi say that the representations that the KRP group was trading solvent contrary to the fact were reasonably capable of misleading all to whose attention the representations came, and accordingly, were able to be availed of by such a person to invoke the consequences that flow from a misrepresentation under s 52 of the Trade Practices Act. 65 With respect, this statement is a little too wide. It is certainly true that in Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 199, Gibbs CJ spoke in the context of representations by a manufacturer that consideration must be given to the class of consumers likely to be affected by the conduct. That is, one does not just take the representation and its effect on the retailer, but using common sense, thinks of the ultimate consumers. Again, the decision of the Full Federal Court in Sutton v A J Thompson Pty Ltd (1987) 73 ALR 233, 240, deals with that situation looking at the class of consumers that will be affected by what a trader does. It seems to me quite a different situation where one is not dealing with a person who is manufacturing or selling goods and services through a chain which may well mean that a reasonable person would have in contemplation the ultimate consumer, but where there is a sale of shares in a private company with a far smaller group of people who might be had in contemplation as being affected by representation. 66 It is not at all obvious that if there was a representation made in the heads of agreement it extended beyond Premier. 67 This view is reinforced by the evidence as to what happened between January and April. 68 The drafting of the SSA was left to Mr Costa, though Mr Thomas, Enzo's solicitor, was involved on Enzo's side of the contract. 69 The exact relationship of Mr Costa to the other defendants is not completely clear. In some respects he appears as the solicitor for Mr Rafidi and his company and others. At other times he appears to be acting on behalf of himself or Resource which what appears to be his own company. 70 There is no doubt at all that Mr Costa knew all about the heads of agreement. There is no doubt either that he was an experienced solicitor. He could have incorporated the heads of agreement into the SSA or he could have at least recited the representations made in the heads of agreement in the SSA, but he did neither. 71 Mr Costa gave detailed evidence as to how he says that the SSA was put together. He said that his secretary prepared the first draft from a precedent in a textbook. However, he also says that the draft was prepared acting for Resources as purchaser pursuant to the discussion he had with Rafidi. He says that he faxed that draft to Rafidi. 72 He notes that, although Rafidi had no official role in Resources, he was a shareholder of a company which was a beneficiary of a trust of which Resources was a trustee and had authority to act on behalf of Resources. 73 Later he had correspondence from Mr Thomas, Enzo's solicitor. He amended the draft and presented it for signature.

74 Mr Lever commented that Mr Costa's explanation was unbelievable. Essentially Mr Lever said that despite Mr Costa's constantly repeated mantra that his document was a "textbook draft", the draft SSA contained several provisions which are clearly referable to the exact sale of shares by Enzo to Resource Developments. 75 Further, Mr Costa was aware of the terms of the heads of agreement. He read the draft, he made his input into the draft. He included an entire agreement clause which as an experienced commercial solicitor he must have appreciated the effect of that clause. He knew that warranties were important to protect the interests of the purchasers, included warranties in the draft share agreement and then removed them all, and finally, he produced fabricated documents to support his story. 76 I should deal with the matter of the alleged fabricated documents in greater detail. 77 The allegation by Mr Lever for Enzo is that Mr Costa and Mr Rafidi fabricated three documents, viz:

(a) The file note which is annexure E to Mr Rafidi's first affidavit;

(b) A letter allegedly sent to Mr Thomas, Enzo's solicitor, on 19 March 2001; and

(c) A file note, PX419, which twice bears the date 10 April 2001. 78 The third of these documents is the lynchpin. PX419 is written on the back of a typewritten sheet. It contains two notes of alleged telephone attendances on 10 April 2001. However, on the reverse side of the page there are a series of numbered paragraphs from 59-66. When one looks at the affidavit of Marcello in 2603/02, an affidavit sworn on 13 June 2002, one can see that the material is quite clearly an answer to paras 55-66 of that affidavit. Faced with this, after earlier indicating that his file notes must have been written contemporaneously, Mr Costa had to agree that they were not; see T419. This ultimate admission threw doubts on the other two documents. 79 The file note, annexure E to Mr Rafidi's affidavit, was one in which Mr Rafidi had written, inter alia, "Pat meeting Enzo we agreed as follows (1) pay 10K deposit not 20K (2) pay 100K over 4 years in arrears subject to HOA. Completion not to take place until HOA conditions are met. … Please prepare agreement to send to Vincenzo …". This document was proffered to shore up the case that it was always intended that the heads of agreement be part of the sale of shares agreement. 80 It is suspicious for a number of reasons which are advanced by Mr Lever. First, the conversation was supposed to have taken place between Mr Costa and Mr Rafidi at the end of February 2001, yet at that stage, Mr Costa had already prepared a draft sale share agreement on 5 February 2001. 81 The letter to Mr Thomas was allegedly sent by facsimile and includes the following: "(2) Completion not to take place until heads of agreement, due diligence and a refinance of KRP to take place."

Mr Thomas swears that no such letter was sent to him by fax or otherwise. Furthermore, Mr Thomas says it is inconsistent with his recollection as to how the transaction was to be finalised. 82 Strangely, this appears to be the only other piece of paper which refers to the heads of agreement together with the share sale agreement. 83 The other peculiarity about Mr Costa's evidence is that his affidavit is virtually word for word with Mr Rafidi's affidavit in substantial respects, including exact recollections of the same conversations. Both Mr Costa and Mr Rafidi deny that they had reference to each other's affidavit. This was quite incredible. 84 In my view it is more likely than not that the three documents to which I have referred were created after the event in order to boost the story that the share sale agreement was subject to the heads of agreement. Accordingly, I disregard these three documents. The documents also put a very severe dent into the credibility of both Mr Costa, and to a lesser degree, Mr Rafidi. 85 I do not accept that the warranties in the heads of agreement were representations which induced the SSA. Whatever view one takes of Mr Costa's evidence, the preparation of the SSA was wholly left to Mr Costa. He knew of the heads of agreement and must be taken to know of the significance of whole of the agreement clauses. Furthermore, he agreed at the suggestion of Mr Thomas to delete virtually all the warranties. With every opportunity to mention the warranties foregone, how can it be said that they were representations which induced the SSA? 86 Thus, there were no grounds for rescission or termination for breach of the mandatory provisions in the heads of agreement or for misrepresentation. 87 However, even if there had been grounds for disaffirmance, it is difficult to see on the evidence where there has been a sufficient intimation of rescission. 88 The alleged rescission was supposed to have been made by Mr Rafidi on behalf of the relevant defendants. There is no direct evidence in Mr Rafidi's affidavit alleging that anything that he said was a rescission of the SSA. 89 Mr Costa, the fifth defendant and a person who acted as solicitor for the defendants from time to time, conceded that there was no written notice rescinding the SSA (see T434). It is certainly common ground that by November 2001 the defendants evinced an intention not to honour the agreement, but the plaintiff says this is a mere repudiation. 90 C. This issue raises another bizarre aspect of this case. As I indicated earlier, the parties to the SSA are Enzo, Mac-Cotta Pty Ltd and Merkado Pty Ltd referred to as the vendors and Resource Developments International Pty Ltd referred to as the purchaser. Clause 20 follows after a heading "Personal Guarantee" and then proceeds to say: "The Vendor agrees to enter into this Agreement at the request (testified by his/their execution hereof) of IYAD RAFIDI …". 91 At the end of clause 20 there is a signature, which I assume is that of Mr Rafidi and Mr Costa has signed as a witness. Then follows clause 21 in which the purchaser acknowledges that the vendor wishes to retain the company name Mac-Cotta Pty Ltd. Then follows clause 22 which says: "The Purchaser and the continuing shareholder (Marcello Russo) shall upon completion of this agreement forthwith apply to finance the Company's financial arrangements with the intention to discharge and release the Vendor's (Vincenzo Russo) securities and personal guarantees. …".

I have already set out the full clause earlier. 92 The original execution clause of the document does not refer to Marcello, but there is handwritten on the last page of the document the words "Signed sealed and delivered by Marcello Russo in the presence" and Marcello has signed the document in this space and Mr Williamson, Marcello's solicitor has witnessed it. 93 The evidence is clear that Marcello's signature was not affixed to the document until December 2001 (T130). Marcello said he never in fact saw the document until September 2001 and no-one had suggested that he needed to sign it until late in the year. 94 This evidence was supported by Mr Williamson who at T566 agrees that he was told by Marcello that he (Marcello) first saw the SSA in mid-September 2001 and that he gave him advice before the document was signed at the administrator's office in December 2001. 95 Marcello says in para 48 of his affidavit of 21 October 2002: "I did not even see the agreement until about September 2001 and that was supplied to me by my father. I signed the agreement at the office of the administrator in December 2001 and only then because my father otherwise refused to be reappointed as a director of KRP for the purpose of passing a resolution having the effect of placing the company and its associated companies into administration. … The April agreement included me as a guarantor. However, I had already been informed by Rafidi that I would not be required to be a guarantor of the debts of KRP and its associated companies. That situation never changed as I was never asked to become a signatory to the agreement in April (before my father asked me in December). I did not even know before I was first shown the agreement that the party to the April agreement was RDI rather than PRL. I still relied on my rights under the 12 January 2001 agreement by reason of what Rafidi had said to me on 11 February 2002. …". 96 There was some discussion as to whether Marcello signed the document under some pressure or that he believed that he was never liable on any guarantee to his father. Whether this is so or not, and I do not consider it is so, the matter is completely irrelevant because the fact remains Marcrello did sign the SSA in order to bring about some result which he thought was desirable. 97 In Marston v Charles H Griffith & Co Pty Ltd a case decided on 30 September 1982, but not reported until (1985) 3 NSWLR 294 at 300 and following, Powell J set out the authorities for the proposition that where more than one person is to guarantee a debt the signature of the first person to sign the guarantee is subject to the condition precedent of the others also signing before the guarantee is effective. I consider the same guiding principle applies to a release and refinancing clause such as 22. Accordingly, in my view clause 22 did not come into play until December 2001. 98 However, this does not mean that the whole of the remainder of the SSA did not come into effect until December 2001.

99 Mr Rayment says in his written submissions, that Marcello signed long after the defendants claim to have rescinded or walked away from the deal. He puts it that in November 2001, Marcello appears to have virtually ceased working in the enterprise. He had declined to sign the accounts and on 6 November 2001 had told Mr Rafidi that he did not see how he could continue running the enterprise. Marcello at that stage seemed to form the view that the defendants were going to walk away, leaving the company stranded and himself and his father liable on their guarantees. 100 Having taken that view and having consulted a solicitor which had the consequence of the appointment of an administrator to Kurnell Recycling Park Pty Ltd and Manzel Equipment Pty Ltd, (these companies later went into liquidation), it was too late thereafter for Marcello to sign and give validity to the SSA. 101 In my view, the timing of the signature of Marcello is of very little moment to the action on the SSA as a whole. The structure of the SSA shows that Marcello was only a party to it so far as the guarantee was concerned in clause 22. This is not a case where one could construe the document as being in escrow until Marcello signed it. 102 D. he next matter to focus upon is whether there has been completion. This is for two reasons, first, the obligation only attaches "upon completion" and if, as is alleged, the agreement was terminated or abandoned in November 2001, then the second half of the clause which provides that until the guarantees are released, the purchaser and Marcello will indemnify Enzo against any recovery action taken in respect of those guarantees, would never come into effect. 103 Mr Lever submitted that there can be no doubt that the SSA was completed. It was performed by Enzo and partly performed by Resource in that it accepted its benefits and entitlements while steadfastly refusing to honour its commitments to Enzo. 104 With respect this submission, even if otherwise correct, confuses an agreement which is executed on one side with a completed agreement. I say "even if correct" as, for instance, Enzo never delivered duly executed share transfers to the purchaser. 105 It is abundantly clear that what was expected to occur on completion as set out in clause 14 has not occurred. There has been no transfer of the shares to name but one of the things that was to occur under clause 14. Indeed, Enzo virtually concedes that there has been no completion, though there are some undertones in the submissions that as the defendants took over the management and control of the enterprise, I should infer that all conditions precedent and the like were waived. This cannot be right because the whole essence of the SSA was to have a transfer of shares which never occurred.

106 Accordingly, the SSA is available for Enzo to sue upon it, divorced from the heads of agreement. 107 E. I have already looked at the matter of the alleged rescission, and as I have said, cannot find any actual evidence that the defendants ever rescinded the transaction expressly, though rescission or termination can be implied from conduct. The evidence certainly is that they walked away from the deal in about November 2001. 108 As the warranties in the heads of agreement were not part of the SSA for the reasons I have given, and because of the way the SSA is drawn, there was no warranty as to the financial viability of the trading companies, there would not appear to be any breach of condition in the technical sense of that term which would justify any termination. 109 Accordingly, in my view the SSA was still in force when Marcello signed it. Thus, the second half of clause 22 was activated. It follows "that the Purchaser, the continuing shareholder and the Guarantor shall indemnify and keep indemnified the Vendor against any recovery action taken against the Vendor in respect of these guarantees or securities to be released and further provided that this indemnity is for the period commencing from the 11 February 2001 until the release of the securities and personal guarantees." 110 It is odd that the guarantor is included in this clause as the guarantor signed off at the foot of clause 20. However, reading the words literally, and remembering the joint and several obligation clause, Resource, Marcello and Rafidi jointly and severally promised to indemnify Enzo against recovery action taken against Enzo in respect of "these guarantees or securities". 111 What were "these guarantees or securities"? For this, one has to look at the first half of the clause and one gets the answer "securities and personal guarantees given by Enzo in respect of plant and equipment and the lease of the premises excluding the two trucks the subject of the distribution agreement." 112 Mr Rayment QC submits that the securities and personal guarantees to be released are those given in respect of the plant and equipment of the business at the Kurnell Recycling Park. Rafidi says to Enzo that he will attempt to refinance the plant and equipment without the necessity for any personal guarantees. It follows that the plant and equipment must at least have a value equivalent to the debts supported by the personal guarantees. The evidence is that Kikalis did try to refinance the debts on the plant and equipment using the equipment as security. The finance company refused because the amount sought in the refinance application exceeded the value of the plant and equipment by a margin of over one million dollars. In other words, the liabilities on the plant and equipment were more than twice its value. 113 Mr Lever has set out in a schedule to his submissions a list of what he says is the plant and equipment, and he lists amounts under guarantees as totalling $1,454,230.87 less proceeds from repossessions. 114 Mr Rayment says that the odd financial transactions put through in 2000-2001 have artificially increased the amount of this claim. He points out that originally the business purchased a Cedarapids 45 rollercone crusher for $171,000 which was provided by the National Australia Bank. It then sold that crusher (pretending it was a new crusher when it was in fact a used crusher) to Orix Australia Corporation Ltd for $250,000 and leased it back. It then sold the crusher for $170,000 using none of the proceeds to pay back either the National Australia Bank or Orix. Mr Rayment said that the effect of these transactions meant that the debts of the company were increased by $421,400 plus fees on equipment which did not exist after October 2001. 115 What is meant by the plant and equipment? One would think it must mean the plant and equipment being used by the trading companies which upon completion would, by virtue of control of the trading companies, be part of the business of the purchaser. 116 Although the second half of clause 22 is to apply before completion, it is hard to see how the plant and equipment can be something different because the words "these guarantees or securities" must refer to at least the plant and equipment which was intended to be carried over into the new business. It seems to me then, that once an asset is disposed of so it can no longer pass to the purchaser on completion, that there is no longer any requirement to refinance it. I say refinance because it seems to me that the whole commercial purpose of clause 22 is that everyone knew that the plant and equipment to be taken over would be subject to financing involving personal guarantees and that there would be refinancing by the purchaser with a consequential release in the guarantee. 117 Looking at the "lease schedule" appended to Mr Lever's submissions, it would seem that the guarantees which may well be covered by clause 22 refer to the concrete pulveriser, the Samsung excavator, the Omtrack crusher and the second Samsung excavator, a total of some $236,000. What is doubtful is whether the Chieftain mobile screening plant which was repossessed as at 29 January 2002 is also to be included which would raise the figure by $90,000 less the proceeds of the repossession sale. In addition there is the guarantee of a lease of the premises which does not appear in the schedule unless it is disguised under some other name. 118 The obligation under the second half of clause 22 was only to indemnify against any recovery action. There has probably been an anticipatory breach of that obligation and accordingly, damages can be recovered against Rafidi, Enzo and Resources based upon the loss that a court would estimate that Enzo lost in not having the indemnity. There is no reason why specific performance should be granted. 119 F. The defendants say that the warranty in 7(8) was breached as at least two of the trading companies were insolvent as at the date of the agreement. However, there is no tying that alleged breach to the remedy of specific performance that is sought. That is not wholly the fault of the defendants because the way in which the specific performance claim is pleaded, it is almost as if it is recognised to be a back-up to a claim for damages, rather than vice versa. 120 The fact that the plaintiff may be in breach of an agreement may be a defence to a claim for specific performance if the breach is continuing and if the breach constitutes a failure on the plaintiff's part to perform the contract so far as the same remains to be performed on his part, but does not necessarily amount to a complete defence to proceedings for specific performance. 121 However, when one analyses clause 7(8), its effect is not as straightforward as the defendants would have it. 122 One of the big problems with the construction of the SSA is the way it is structured with respect to parties. The ultimate beneficial shareholder of Mac-Cotta Pty Ltd and the companies described as the trading companies, is Enzo. However, the actual shareholder of Mac-Cotta is Merkado Pty Ltd which is the trustee of the Stafford Trust and the Caracalla Trust. Clause 3, as I have set out, is a promise by the vendor to sell the vendor's shares in the Company. There is a definition of vendor under clause 1(f) of the SSA, but it is of no assistance at all in the present case. "Company" is not defined. The best interpretation of the word is that it means Mac-Cotta Pty Ltd because that is the holding company of the trading companies so that transfer of shares in Mac-Cotta would also transfer control of the trading companies. That interpretation is affected to a degree by the fact that Mac-Cotta Pty Ltd is listed amongst the people who constitute "the vendors" at the commencement of the deed. Enzo is referred to as the vendor in clause 19, the words "vendor company" is sometimes used for Mac-Cotta, see eg recital B, whereas Merkado, sometimes spelt "Mercado" is usually referred to as the trustee at the commencement of the deed, but the drafter tires of that after a while. 123 Clause 2(2) provides that: "Two or more parties to this Agreement who represent the same interest, as Vendor or Purchaser, assume the liability to comply with their obligations under this Agreement jointly, and in addition each of them assumes those obligations severally." 124 I earlier referred to the fact that there is a definition of vendor which is useless. The definition is in clause 1(f) of the agreement which says: "'Vendor' includes: (i) when an individual, the Vendor's legal personal representatives; (ii) when several individuals the vendors jointly and their respective legal personal representatives; (iii) when a company or corporation, its successors and assigns."

The definition has nothing to say about the actual case as it exists in this deed where there is one individual and two corporations as vendors. 125 Turning then to clause 7(8), the vendor warrants in (d) that: "The Vendor is not bankrupt, insolvent or subject to current proceedings for bankruptcy or winding up …". 126 The defendants say that this amounted to a warranty that all the trading companies were solvent. However, it is not a warranty that the company is solvent, whatever the company may be, or that the trading companies are solvent, rather that the vendor is solvent, whoever the vendor may be. The very highest it can mean is that Enzo is solvent, Mac-Cotta is solvent and Merkado is solvent. If any of these meanings attaches to clause 7(8), there is no breach that has been established by the evidence. 127 I then pass to clause 7(6) which is a warranty that if there is a breach of warranty rendering "the vendor" liable for debt or damages for $5,000 or would reduce the value of the company's business or any of the company's assets by $5,000 or increase its liabilities to that amount, then the purchaser might rescind. The clause only operates if there is a breach of warranty, and as far as I can see, there is no breach of warranty. 128 Accordingly, I do not consider that any defence based on clause 7 of the SSA is an answer to the plaintiff's case.

129 Having found that these defences do not have substance, I must turn my mind to whether there should be specific performance of the SSA? 130 I note that the SSA has been partly performed by Enzo, though it must be said that he had handed over the business in February 2001 before the SSA was signed. It is true that equity is more ready to grant specific performance in cases where the agreement has been fully or even partly performed on one side; see eg Greene v West Cheshire Railway Co (1871) LR 13 Eq 44, but the degree of actual performance is so modest that this line of authority has no significance to this case. 131 Although Enzo seeks specific performance of the SSA, his principal concern is, of course, to be released from his guarantees which could make him liable for over a million dollars. This does not require an order in the nature of specific performance, as, in the absence of any special insolvency problem, damages are an adequate remedy. Thus I decline to grant specific performance.

132 E2. The same considerations operate here as I discussed under E1. I can thus move straight to the three sub-claims for damages. 133 (a) As the agreement is still on foot, there would appear to be no defence to the claim for $100,000 being the first instalment. 134 (b) I have already noted in paragraph 117 that damages of about $250,000 are allowable under this head. 135 Although the evidence suggests that most of the guarantors have sued Enzo, there is no material which has indicated whether, in the long run, he settled with those claimants or whether he did not have any money to pay them. Indeed, some of the claims may still be in suspense whilst this present litigation is being decided. It would seem that if a person goes bankrupt and is only able to pay a dividend, then the Trustee in Bankruptcy can only recover the amount of dividend paid, not the full amount of the claim; see eg Ex parte Bishop (1880) 15 Ch D 400. 136 I have not overlooked the evidence from Mr Kikalis that he made real attempts to negotiate refinancing so that KRP could be refinanced without anybody's guarantees. This would have been material had it been the first part of clause 22 which was invoked. However, under the second part of that clause, it is irrelevant that the defendants may have made bona fide or any attempts to release the guarantees.

137 (c) There is also no answer to the claim for the stamp duty paid on the agreement of $2,814.01 which must be added to the two sums I have just mentioned.

138 Accordingly, under the SSA and subject to the Trade Practices claim, there should be a verdict for Enzo for $100,000 plus the damages for breach of the second part of clause 22 which damages could not exceed $250,000. 139 E3. I will return to the Trade Practices claim after I have dealt with the claims made by Marcello. 140 E4. As to the claim of $61,723 for cartage, Mr Lever puts that Enzo has verified the $61,723.50 against Hy-Tec. Mr Kikalis, the chief financial officer of Hy-Tec, has confirmed that Hy-Tec gave cartage jobs to Enzo and he was unable to confirm or otherwise which invoices remained unpaid. Accordingly, says Mr Lever, Enzo's evidence that the schedule represented unpaid invoices has not been challenged and I should accept it. 141 The claim technically arises under para 36 of the statement of claim which simply reads: "Hy-Tec Industries has failed to pay Vincenzo Russo $56,496.00, being cartage fees invoiced to Hy-Tec Industries for the period August to December 2001." 142 The defence was "In the premises the third defendant denies that it is liable to pay Vincenzo Russo the amount claimed in para 36 of the statement of claim or any amount." 143 However, in the submissions at the end of the case Mr Kaye put that the invoices on which Enzo relies were issued by Mac-Cotta. I would have thought, with great respect, that both the statement of claim and the defence are inadequate. The statement of claim should have set out the facts or at least a common money count which presumably would have been for money payable for goods and services supplied to Hy-Tec. The defence, which as pleaded, tends to be a defence of the general issue, masks the fact, if it be the fact, that the real defence is that the goods and services were not rendered by the plaintiff, nor were they rendered to the defendant. However, in view of the other confusions in this case I will not say anything more than what I have just said. 144 Mr Kaye also points to the evidence given by Mr Rafidi which was not challenged in which he alleges the following conversation with Enzo:

"Rafidi: Your transport agreement is with KRP and KRP owes Hy-Tec much more than Hy-Tec owes KRP.

Enzo: I know that, but I need to survive too. Anyway someone needs to transport to Hy-Tec and therefore that would be a Hy-Tec account regardless of your relationship with KRP.

Rafidi: Okay I will pay you what is owed to you up to today anyway but from now on you will have to sort it out with Marcello."

There was then a calculation and Hy-Tec paid a cheque for the agreed amount. 145 The onus is on the plaintiff. The invoices were submitted by Mac-Cotta. There does not appear to be any contrary evidence that Enzo supplied the cartage rather than Mac-Cotta: accordingly the claim should fail. 146 E5. The remaining claim is for $1,017,182.90 under the 5 year distribution agreement. 147 The distribution agreement is dated 10 April 2001. It is made between Kurnell Recycling Park Pty Ltd and Enzo. It contains an entire agreement clause and KRP promises to pay $8 per tonne for Kurnell to Ingleburn and Prestons for cartage. 148 The claim for $1,017,182.90 is made up of $156,489.75 for cartage between April and November 2001. This is said to be an average of $19,561.21 per month. The agreement had 52 months to run when it came to a sudden end in November 2001 and if one multiplies $19,561.21 by 52, one gets $1,017,182.90. 149 The simple answer given by Mr Kaye is that none of the defendants were parties to the distribution services deed. The only party "of the other part" to Enzo was KRP now in liquidation. 150 I can find no answer to this submission. Accordingly, I would dismiss this claim. 151 E6 and E7. The cross claims noted under E6 are Trade Practices Act claims which are conveniently considered after consideration of claim E3. The cross claims for contribution in E7 should be considered at the end of dealing with the other issues. 152 I now pass to Marcello's claims. I must note that the claims made by Marcello in proceedings 2603/02 are to an extent contradictory to the claims made by his father, though in some respects they proceed along similar lines. The defendants are the same. I will deal with the issues as identified in para 15 above. 153 M1. Marcello's statement of claim gives particulars of the agreement on which this claim is based in the following way: "The agreement was partly written and party oral. To the extent that it was written it was constituted by the document entitled 'Heads of Agreement' … to the extent that it was oral, it was constituted by conversations between Marcello Russo, Vincenzo Russo, Iyad Rafidi, Pat Costa, Bob Proctor and Ron Sturgiss between April 1999 and January 2001 including those referred to in paragraph 24. …". 154 The pleading then said it was a term of the agreement:

(a) that Premier Resources would pay $1.5 million to acquire 50% of Kurnell Recycling, Manzel Equipment and other companies in the Russo group of which $400,000 was to be paid to Enzo and $1.1 million to Marcello;

(b) Premier Resources would refinance the liabilities of the company in the Russo group and would release Marcello and Vincenzo under their guarantees;

(c) Merkado and Kurnell Recycling and its directors would enter into a lease of the premises at 6 Captain Cook Drive, Kurnell, and Premier Resources would be entitled to enter and operate the site and use all necessary equipment;

(d) Premier Resources would purchase concrete aggregate and sand from Kurnell Recycling at a certain price. 155 It was then pleaded that there were various implied terms to act in good faith and to do all that was reasonably necessary to complete the agreement. It was alleged that Premier and Hy-Tec possessed a development application and an environmental impact statement in respect of the premises, and commenced to carry on the business from February 2001. Then on 10 April the sale of shares agreement was entered into, Enzo resigned as a director, yet Premier failed to pay $1.1 million to Marcello, failed to refinance the liabilities of the Russo group, and failed to release Marcello's liabilities under the guarantee. It is then said that Messrs Rafidi and Costa induced the breaches of the agreement by Premier. 156 It was thus Marcello's case that the heads of agreement did not constitute the entire agreement. However, the date of making the agreement is put as "on or about 12 January 2001". 157 Mr Raine for Marcello says that it is appropriate to examine the surrounding circumstances over the period April 1999 to November 2001 to find what the whole contract is. Certainly one can look to the surrounding circumstances as they existed at or before 12 January 2001. However, considerable care needs to be employed in considering conduct after 12 January 2001; see Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153, 163-4. However, it is not necessary to pursue this matter in detail. 158 The heads of agreement document, so far as is relevant, is said to be between Premier, therein called PRL and Manzel Equipment Pty Ltd and Kurnell Recycling Park Pty Ltd, together in that agreement known as KRP. I have already set out the heads of agreement in full in para 21 above. However, for ease of reference I will highlight the more significant provisions of it. 159 The operative part of the agreement is that KRP will enter into an agreement with PRL giving the right to market KRP's products exclusively. PRL will enter into an agreement with KRP to purchase concrete aggregate and sand at a certain rate. There was then a clause which said: "Mandatory to this agreement KRP and its directors and share-holders will: 1. Enter into a 20-year lease arrangement with its landlord, providing PRL with long-term security, for the supply of products and materials … 4. Maintain production of recycled concrete aggregates for PRL's use at a minimum of 140 tonnes per hr 15 hrs per day 205 days per annum. 6. Provide PRL with an option to purchase 50% of KRP for $1.5M. …". 160 The agreement then continued: "Upon KRP fulfilling the mandatory conditions above within 3 months of the date of this agreement PRL will subject to final Board approval from PRL: 1. Secure a release of personal guarantees by Vincenzo Russo to any financial institutions in KRP … . 4. Purchase 50% of KRP including all of its for $1.5M."

The document was signed by Kurnell Recycling Park Pty Ltd, Manzel Equipment Pty Ltd, Marcello, Enzo and Premier Resources. 161 The defence of Premier and Hy-Tec is that:

(a) The heads of agreement and any surrounding implied terms were a contract not made with Marcello but rather with two companies now in liquidation, Kurnell Recycling Park Pty Ltd and Manzel Equipment Pty Ltd.

(b) It was incorrect to say that the dealings between the parties up to 12 January 2001 had any contractual effect.

(c) The heads of agreement were not a binding agreement.

(d) The conditions to be fulfilled within 3 months were not fulfilled.

(e) In any event, the terms could not be as the plaintiff pleaded; and

(f) The SSA was not in substantial performance of the heads of agreement. 162 Unless it can be said that there was a wider contract of which the heads of agreement were part, the objection that Marcello was not a party to the heads of agreement must clearly be upheld. He only signed as a representative of the entity described as KRP or perhaps as a director or shareholder who was making a promise to do one of the mandatory things. 163 Was there then a wider agreement? 164 It seems to me that most of the facts and circumstances tell against this. Particularly does the conduct of the parties shortly before the heads of agreement were signed. 165 Marcello says in his affidavit that in September/October 2000 he had a conversation with Mr Rafidi about the relationships between KRP and Hy-Tec and he said, inter alia: "I have spoken to Enzo about Hy-Tec purchasing half of KRP. He says that he is prepared to sell his shares and let me stay on with KRP, provided the guarantees are discharged. He says he wants to get $400,000 for his shares. What's happening with the heads of agreement?

To which Mr Rafidi replied: "I'm working on it. Come into the office and we'll go over it."

Marcello then says that during November 2000 he attending the office of Hy-Tec and there was a conference telephone call involving Messrs Rafidi and Costa. Mr Costa said that he was handling the heads of agreement and that all Mr Rafidi has to do is to give him the amounts for which the shares are going to be bought and other notes. The parties agreed on $1.5 million which would be used to pay out Enzo and the balance to be put back into the business. Marcello says that during that meeting Mr Rafidi showed him a draft heads of agreement on Rafidi's computer. Shortly afterwards, and on 20 November he received an e-mail from Mr Rafidi containing cash flow spread sheets 166 On or about 2 December he received by e-mail from Mr Rafidi, a draft heads of agreement which he said he quickly read and gave a copy to Enzo. On the same day he e-mailed suggestions for amendment to Mr Rafidi. 167 Mr Rafidi lost his computer about this time and in any event, Marcello says that Rafidi never replied to e-mails, but none of Enzo's alterations appeared in the final draft. 168 Rafidi gives quite a different version. First he says that he and Marcello had been working for some time on a model as to the profitability of the site and that depended on the amount of production. It was clear to both of them that the price to be paid for a 50% interest in KRP would be dependent upon the way in which the figures came out on the model. He says that during the period they were working on the model he received the first draft of the heads of agreement from Marcello, who said: "I have a lawyer friend who prepared this for me."

The draft was discussed over a period of time and through a number of drafts all of which Mr Rafidi says were prepared by Marcello's lawyer. He says that shortly prior to 12 January 2001 Marcello and he had a conversation on the phone to which Marcello said he had the final version of the heads of agreement. On 12 January 2001 Marcello arrived at his office with the final version in both hardcopy and floppy disk and it was signed. Enzo arrived at the offices about mid-day and there was a discussion. Mr Rafidi said, "An amount has been agreed for the purchase price as being calculated by reference to this model that I have prepared based on the various costs and projected productions which Marcello has provided to me. He has told me that the figures are accurate. Are they?" Mr Rafidi says that he then went through the various figures and Enzo confirmed the accuracy of the inputs. Marcello denies almost all of this, in particular that he had any solicitor acting for him apart from Mr Costa. 169 I do not think it matters which version I accept. I must confess I have some doubts about both of them and I have already made some comments on Mr Rafidi's credibility. Whichever version is correct, both parties were paying fair attention to putting together the heads of agreement. For reasons which I will mention shortly, they may not have achieved this on 12 January, but that's what the parties were moving towards. Their conduct to me does not give the impression that they were already in some sort of contractual regime which was being formalised by the heads of agreement. True it was that there were some contracts between them for the supply of aggregate and sand, but there was nothing more. The heads of agreement appear to be the start of a contractual regime, though there were quite a number of conditions before the contractual regime could spring into existence. 170 Furthermore, there does not appear to have been any real thought given as to who were the contracting parties. The heads of agreement were made between two subsidiary companies of the Russo group on the one hand, and Premier on the other hand (though it is to be noted that the words "or its nominee" appear after the reference to Premier in the heading though not in the body of the agreement). 171 A contract that is made subject to "our board's final approval" is no contract at all; see Macquarie Generation v C & A Resources Ltd [2001] NSWSC 1040 (Palmer J) noted (2001) 75 ALJ 747 following Buhrer v Tweedie [1973] 1 NZLR 517. Whilst those cases refer to offers, the same principle applies to concluded illusory contracts. 172 Even if this were not so, it is quite clear that in the present case, the mandatory conditions were not fulfilled within 3 months of 12 January. 173 Before leaving this aspect of the case, I must deal with a submission made by Mr Raine in para 226 of his written submissions that Merkado was entitled to $1.1 million plus interest from Premier or Hy-Tec on application of the doctrine of substantial performance. This sum was calculated by taking the $1.5 million and deducting what was due to Enzo. What Mr Raine seems to have meant by this doctrine of substantial performance is that if there is a contract between X and Y under which X is to be paid if it completes the work and X does not complete the work but the amount uncompleted is of "little importance to the defendant and as acquiesced in by him", then Y is bound for pay the contract sum. The passage I have quoted comes from the High Court's decision in Steele v Tardiani (1946) 72 CLR 386, 405, on which Mr Raine relied. 174 With great respect, I cannot see how this principle has anything to do with the current case. Even assuming that there was some contract and that we are dealing with an entire contract, any shortfall in performance by Marcello could not be considered to be anything more than substantial and certainly was not acquiesced in by the defendants. 175 Accordingly, I cannot see how the case put up by Marcello in contract can succeed. 176 M2. I now turn to the claim that there was a fiduciary duty because of the existence of a joint venture. Marcello says that there was a joint venture established in 1999 or alternatively, by 12 April 2000 between Marcello and Merkado of the one part and all the defendants on the other part. The argument then goes on to say that joint ventures generate fiduciary duties, fiduciary duties were in fact generated and were breached. However, the important starting point is whether there was a joint venture which generated fiduciary duties in the first place. 177 The submissions of Mr Raine set out three or four pages of events which he says shows the existence of a joint venture. Most of these events and conversations deal with basal commercial matters or with projected closer relationships between the parties, rather than something that was there and then in force. 178 Mr Kaye submitted that "Prior to the heads of agreement being entered into the defendants were merely customers of the plaintiffs. The defendants were negotiating with the plaintiffs for supply contracts, and the potential purchase of some of the plaintiffs' business. Any discussions in relation to developing business ideas were as potential shareholders not partners or joint venturers; that is, parties with common interests, in the sense that they each wanted the plaintiffs' business to be profitable. The defendants were not putting themselves in a position where they were expected to look after the plaintiffs' interests other than in the sense that looking after their own would also, by community of interests, also advance the plaintiffs' interests." 179 My view of the evidence is that these submissions are completely correct. I do not find in the various matters referred to by Mr Raine any undertaking by the defendants to look after the plaintiffs' interests. The plaintiffs were considered as business people, as were the defendants, and each were negotiating out a better regime for the future, but that is as far as it goes. 180 I note that Mr Raine's back-up submission is that even if there was not a joint venture, there was still a scenario in which the plaintiffs reasonably expected that the defendants would watch their interests. I do not think that is so. 181 M3. I will deal with the Trade Practices Act claim after I have considered Enzo's claim under that Act, E3. 182 M4. The pleading says that by reason of the conduct of the defendants, Marcello was induced to assume or expect that Premier would release his guarantees and pay him $1,100,000. 183 This aspect of the case did not feature highly in the way the case was run. It was a difficult issue for Marcello as the general approach is that people do not succeed in commercial matters where they intend to regulate their affairs in contract by relying on some estoppel when that contract does not eventuate; see eg Corpers (No 664) Pty Ltd v NZI Securities Australia Ltd (1989) NSW Conv R 55-475. 184 I have taken into account the odd circumstances of this case. These include the fact that, whilst the control of the whole business was virtually passed over to "the other side" in February 2001, the only piece of paper that was in existence was the heads of agreement. Then, whilst everyone knew that the whole of the control of the business had passed over in February, the SSA was negotiated out incredibly without any reference to what was happening on the ground. 185 As I have said when dealing with claims E1 and E2, one cannot imply into the SSA the warranties or other terms of the heads of agreement that were reached in January, although there is some common sense in doing so, neither do I consider that one can infer some estoppel from the circumstances. 186 The parties were expecting that everything would work out and that, in due course, there would be agreements. In the meantime, they were prepared to go with the flow and not insist on their rights. , 187 I have reviewed the relevant evidence extensively in other parts of these reasons. I do not consider that there is sufficient material to satisfy me that Marcello did form the assumption that his guarantees would be released or that he would be paid money. It is clear that Marcello expected that the former would occur in due course and that there would be a contract made under which there would be at least a notional allocation to him of capital of $1,100,000, but that is not sufficient to succeed on this part of the case.

188 M5. I now turn to the case against Mr Costa. 189 The statement of claim alleges, in para 40: "By reason of the conduct particularised below, there arose between Marcello Russo and Merkado and Placido Costa an express or implied retainer." 190 Paragraph 41 pleads that the same particularised conduct constitute a representation to Marcello, inducing in him the assumption that Mr Costa was acting as his solicitor. Paragraph 43 raises the same matters by way of estoppel. It is then alleged that for some one or more of those reasons Mr Costa owed fiduciary duties and duties of care, skill and diligence, which he breached, both by failing to avoid contingent conflicts of interest and in failing to advise Marcello and Merkado to obtain independent advice, and generally, failing to protect Marcello and Merkado's interests. 191 The particulars to para 40 set out allegations that in May 2000 Mr Costa orally represented to Marcello that it would be a waste of his resources to employ an independent lawyer, that in November 2000 he said that he would draft the agreement for all parties to save costs and time, that he in fact drafted the heads of agreement and the distribution deed, and that in April 2001, Mr Costa orally represented to Marcello that he was looking after the interests of Marcello and Kurnell Recycling. The defence was a bare denial. 192 In his submissions, Mr Raine conceded that Marcello never expected a bill from Mr Costa, but says that all the circumstances showed that Costa took up the position of everybody's solicitor and that Marcello relied on him, so there must be at least an implied retainer. 193 Mr Seton SC and Mr Hennessy for Mr Costa, submitted that at no time did Mr Costa act for Marcello in respect of the heads of agreement. 194 To evaluate that submission one must refer back to the evidence that I have already detailed as to how the heads of agreement came into existence. As I have said, both Marcello and Mr Rafidi gave completely different versions, neither of which I thought was completely credible. Furthermore, Marcello's version seemed to have two strands in it: (a) that the document was on Mr Rafidi's computer and that Mr Rafidi gave him a print-out; and (b) that Mr Costa said that he would draw up the agreement. The second is fairly unlikely in view of the rather strange format in which the heads of agreement finally appeared which one would not have thought were the product of a legal mind. 195 I do not accept that Mr Costa drew up the Heads of Agreement or that there was any retainer of Mr Costa by Marcello. Even if there had been such a retainer, it was abundantly clear from all the material that Mr Costa was a person whose primary responsibility was to Hy-Tec and its associates, and that any advantage that Marcello got in not having to pay lawyers was always subject to Costa's allegiances to his main client, Hy-Tec. 196 Accordingly, I would not find for Marcello as against Mr Costa. 197 Accordingly, apart from the Trade Practices Act claims, Marcello's proceedings fail completely. 198 I now have to turn to the Trade Practices Act claims. In a very real sense, it is more practical to look at this matter under the more fuzzy law regime of the Trade Practices Act than as a case in contract where the question who are the contracting parties is vital. 199 E3, E6 and M3. I believe the way to approach resolution of the problems raised under the Trade Practices Act is to set out the various claims and counterclaims that are made. It is convenient to deal with the allegations of breach of the Trade Practices Act compositely so far as the plaintiffs' claims are concerned and again compositely so far as the defendants' claims are concerned. Insofar as I am able to do so, I will consider claims E3 and M3 together though I will, when possible, note paragraphs dealing with particular claims accordingly. 200 E3. Section D of Enzo's statement of claim (paras 30 and following) sets out nine alleged representations, each of which Enzo claims was misleading and deceptive. Enzo then claims that Messrs Rafidi and Costa aided, abetted, counselled or procured the representations and that Enzo suffered damage in that he has lost the benefit of the distribution services agreement, has been exposed to liability under the guarantees and has not been paid for his shares. 201 The nine representations in brief are:

(a) Made by Rafidi about 12 December 2000 at Kurnell that Hy-Tec had the financial capacity to assist the trading companies complete the necessary research and development of a process for crushing and recovering components of concrete for recycling;

(b) By Rafidi on 12 January 2001 along much the same line;

(c) By Rafidi on or about 16 January 2001 at Fairfield that Hy-Tec had committed resources to upgrade the manufacturing plant of Kurnell Recycling and to provide the necessary funds to refinance the trading companies and release Enzo's guarantees;

(d) By Rafidi on about 1 February 2001 at the Wentworth Hotel Sydney that Premier would implement plans for the maintenance and expansion of the business of the trading companies to ensure maintenance of a long term cartage contract with Enzo and that it had the financial capacity to discharge the liabilities of the trading companies;

(e) By Rafidi on 11 February 2001 at Neutral Bay that Hy-Tec would be able to refinance the trading companies and have Enzo's guarantees released within six months;

(f) By Rafidi on 8 March 2001 at the Wentworth Hotel Sydney to the same effect as (e);

(g) By Costa on or about 16 January 2001 at Fairfield much the same as (c);

(h) By Costa at Neutral Bay on 11 February 2001 much the same as (e);

(i) By Costa on 8 March 2001 at the Wentworth Hotel much the same as (f). 202 The answer in the defence was that the allegations were all denied and that in any event Premier is a parent holding company and does not have any personnel. 203 M3. Marcello puts forward two sets of representations labelled the "Pre-Agreement Representations" (para 24) and the "Post Agreement Representations" (para 31). 204 The Pre-Agreement Representations are pleaded in summary as follows:

(a) By Mr Rafidi in November 2000 that he was preparing cash flow statements to give to his finance people so that the refinancing of the companies in the Russo group could be progressed and that he needn't worry about participating in any refinancing. Further, that Premier Resources had a large corporate umbrella and could more sensibly source necessary finance and that 50% would be purchased for $1.5 million, $400,000 cash to Enzo and $1.1 million cash to Marcello;

(b) By Mr Rafidi on or about 12 December 2000 that Hy-Tec had the financial capacity to assist the companies in the Russo group and that Premier Resources had resources to provide the necessary funds and facilities to refinance, that Hy-Tec would buy all the aggregate coarse sand and crusher dust produced by Kurnell Recycling and that competent financial analysis of the Russo group had been carried out by Premier showing the future profitability; and

(c) By Mr Rafidi on 12 January 2001 at Auburn that Premier had the personnel and skills to improve the management and production of the Russo group companies.

The defence is a denial. 205 Paragraph 31 of Marcello's statement of claim sets out what are termed post agreement representations, as follows:

(a) By Rafidi about 16 January 2001 at Fairfield as per Enzo's 1(c);

(e) By Rafidi in September 2001 at the office of Hy-Tec in Auburn that finance would be in place that week and the guarantees would shortly be released.

Again the defence is denials. 206 Both Enzo and Marcello primarily seek damages under the Trade Practices Act. 207 E6. The first cross claim is by Resource, Rafidi and Costa against Enzo and Marcello alleging that the representations in the Heads of Agreement were false and misleading under the Trade Practices Act and that the SSA should be considered rescinded and damages paid. 208 In proceedings 2603/02, a corresponding cross claim is made to the first cross claim. 209 The second cross claim is brought by Premier and Hy-Tec against Enzo alleging that there was a misrepresentation that Kurnell Recycling was trading solvently and that its production was a minimum rate of 140 tonnes per hour etc and that it would provide Premier Resources with proof of supply of raw material to a minimum of 400,000 tonnes of raw product per annum. The cross claimants claim damages. 210 There is a virtually identical second cross claim in proceedings 2603/02. 211 The fourth cross claim in Enzo's proceedings is brought by Resource and Rafidi against Enzo and Marcello alleging that the cross defendants represented that Kurnell Recycling Park Pty Ltd could forthwith bring production of recycled concrete aggregates to an annual production rate of in excess of 400,000 tonnes per annum by a minimum rate of 140 tonnes per hour 15 hours per day 205 days per annum. The pleading alleges that this representation was relied upon in entering into the SSA. The relief sought is setting aside the SSA and dismissing both Enzo and Marcello's actions. The defence is virtually non-admissions. 212 There is a virtually identical fourth cross claim in 2603/02. 213 I should add that in each set of proceedings there was a third cross claim by some of the defendants against the other defendants for contribution which I will consider as E7. 214 Enzo swore in para 54 of PA01 that on about 12 December 2000 in Marcello's office at Kurnell he met Messrs Rafidi, Sturgiss, Proctor and Kikalis and the following conversation took place:

"Rafidi: We are here as shareholders of Hy-Tec. We want to assure you about our intentions. We are offering to buy your shareholding and are committed to providing the funding necessary to complete the research and development to recycle demolition concrete for the manufacture of concrete. We are prepared to put in about $1.5 million.

Enzo: That is encouraging. I have decided that I will get out and leave Marcello with the remaining 50%. There are however some things I need your assurance about. The first is that you have the capacity to refinance KRP and to have my guarantees lifted. I am not going to allow control of KRP to be handed over unless I am assured of that.

Rafidi: Our parent company Premier Resources is a substantial company and is supported by very substantial shareholders, including the Austen family and Mitsubishi Concrete. We will be able to refinance all debt and expand the business." 215 Later Mr Rafidi said: "Our main objective here is to reassure you of our full and entire support to lift your guarantees and free your family home. We never put up personal liability to support loan transactions. We are going to put about a million and a half dollars into KRP. We have got the management ability and systems to improve the operation of KRP and we have experienced operators who can achieve that. Victor (Kikalis) is our financial expert. He looked at the figures and is confident that KRP can be refinanced without requiring any additional security. We will be able to take over your obligations under the guarantees. You have nothing to worry about." 216 In para 57 Enzo says that on 12 January 2001 he received a telephone call from Mr Rafidi. Later that day he met Rafidi at Hy-Tec's office at Auburn and they had a conversation to the following effect: Mr Rafidi said that he had calculated production on only 205 days a year. Enzo said, "Although our DA allows us to work at night, it doesn't let us produce such a high quantity of material." Rafidi said, "I am aware of this. It's our problem to get a consent for the increased amount of production we want. It has been raised with Marcello."

Enzo: "It looks like you have made provision for about everything but I really can't work with Marcello. For this reason I want your confirmation that you will buy my shares and have my guarantees released."

Enzo: "Maybe, but this where I stand. I understand that Marcello is getting on very well with the Hy-Tec boys. The new business arrangement would be better off without me."

Enzo: "I want to get back what I put into KRP. You can put the balance into developing the recycling process. I want $400,000. You can spend $1.1 million as Marcello recommends. You can also go to the bank to lift my guarantees. If you do that, you will get a business which is set up and ready to roll."

Rafidi: "Yes that's fine. We agree to have the guarantees released but we will need some time. We have a lot on at the moment and we will have to reorganise our finances. How about if we agree to release your guarantees within six months and if we don't we pay KRP an extra $1 per tonne for the aggregate."

Rafidi: "My friend you've got my word. I have already told you that Premier Resources has got the capacity to have your guarantees released and that our shareholders will support us. We can amend the heads of agreement to provide for the extra things you want. Let's call in Marcello and then sign the heads of agreement." 217 Enzo then says that Mr Rafidi made some amendments to the heads of agreement, Marcello was called into the room and the agreement was signed. 218 I do not think that it is really necessary to go through paras 59, 61, 62 and 67 of Enzo's initial affidavit because they say similar things to that which I have already set out. Mr Lever says that no attempt was made during any of the defendants' cross-examinations of Enzo to challenge any of this material. Bearing in mind that Enzo was agreeing effectively to sell all his shares by four delayed instalments and to hand over the whole of the site and business to Marcello and the defendants, he was obviously relying on the defendants' representations that he would be paid. Mr Rafidi's version of what happened on 12 January I've already given. He also denies that any such conversation as set out in Enzo's affidavit took place. 219 However, the thrust of the submissions of the second and third defendants were not that the representations were not made (this was not admitted, but no submissions were made about it), but rather that they were not relied on by Enzo and in any event, were not false or misleading. 220 It will be remembered that Enzo had said in his evidence which I have set out above that by 12 December 2000 he had already made the decision to get out of the business and leave Marcello with the remaining 50%. In cross examination Mr Kaye elicited from Enzo that he had seen his solicitor Mr Ken Thomas in December 2000 and asked for advice in relation to the proposed purchase of his shares. He told Mr Thomas that the draft heads of agreement had been prepared and discussed it with Mr Thomas. He agreed also with Mr Kaye that he had told Susan Gray, who was Kurnell Recycling Park's business manager and accountant at the time, that he did not trust the behaviour of Mr Rafidi the way he was doing business. He also said that he didn't believe Mr Rafidi's word. 221 I do not really think it is necessary to look to Marcello's material on the representations that were made as to a great extent they cover the same ground as those in Enzo's case. 222 Nor do I think there is any great advantage to be gained by exhaustively reviewing the evidence and determining one way or another whether representations were made or not. I have already said that I have some doubts on accepting Mr Rafidi's evidence. I should also note that I am not completely happy with accepting Enzo's and Marcello's evidence as I gained the impression that they tended to remember only selectively those parts of the transactions which benefited them and sometimes had no memory at all of other things. 223 I will accept, and indeed, I think the balance of probabilities favours it, that something like what Enzo complains of was said. Indeed, cross examination of Enzo on this material was sparse. 224 The more difficult question is whether Enzo relied on these representations and whether they were false and misleading. 225 As to reliance, Mr Kaye submits that when one considers that Enzo did not trust Mr Rafidi's integrity, that he did not mention the alleged representations to his solicitor, and that he was ready to sell his shares in any event because he was both fed up with the way Marcello was acting in and about the business, and was fearful as to the position with the guarantees. 226 Mr Lever says that the virtually unchallenged evidence is that Enzo would not have signed the share sale agreement if it were not for the assurances given to him. For instance, in para 64 of affidavit PA01, Enzo said that from 12 February 2001 "I ceased all involvement in the management and administration of the Kurnell Recycling group of companies. On the basis of what I had been told by Rafidi and Costa, I believed that Hy-Tec would be acquiring my shares in the Kurnell Recycling group of companies, that Marcello and Hy-Tec would be taking over management and administration of the Kurnell Recycling group of companies and that I would be providing cartage services to Hy-Tec". Again, he says at para 78, "On the basis of what I had been told by Rafidi and Costa, I believe that Premier Resources or Hy-Tec would refinance the liabilities of the Kurnell Recycling group companies and have my personal guarantees released. I would not have signed the share sale agreement and the deed of distribution services if it were not for the assurances given to me by Rafidi and Costa." 227 As far as Mr Thomas is concerned, Mr Lever says that he was told about the conversation referred to in para 61 of Enzo's affidavits in which Mr Rafidi had said that he would be paying $400,000 for the shares, release the guarantees and giving Enzo a job. 228 Paragraph 33 of the statement of claim alleges that the representations were made in order to induce Merkado and Enzo to enter into the agreement for sale of shares and to sell the shares in Mac-Cotta to Resource Developments. One probably can infer that it also intended to say that it in fact induced them to do so. 229 The representations were in very general terms and the gravamen of them was relayed to Mr Thomas who either drafted or settled the SSA and distribution agreement. 230 Dealing with the representations as to existing fact, the representations that Premier and Hy-Tec had the resources to upgrade the manufacturing plant of Kurnell Recycling and had the personnel and skills to improve the management and production of the trading companies, may well not have been false. Indeed, the reason why the defendants walked away from the project in November 2001 was not so much that they did not have the resources, but that they found difficulty in obtaining the anticipated production from the site and the solvency of the various trading entities. 231 It is hard to see how a man who has been the person who carried on the business for many years even though in latter years Marcello probably took a greater part than he did, can really say that he was induced to enter into a contract to sell his shares because of representations that the other parties had the financial capacity to improve things. Indeed, these financial resources are really linked to the representation of future conduct that Premier would have Enzo's guarantees released. Indeed, the last utterance on 8 March was "There is nothing to worry about" said Mr Costa, "You can have this letter and a cheque for $10,000. We will be signing the share sale agreement very soon and having your guarantees released." 232 There was no definition of "guarantees", but when one looks at what was incorporated into the SSA one can see that the guarantees were less than the whole of Enzo's guarantees. No-one raised any objection to this and it shows that the intention of the people who made the future representations that the guarantees, whatever that means, would be reduced was in fact incorporated into the agreement. In my view, on the material that I have, despite the paragraphs of Enzo's affidavits to which I have referred, he has not demonstrated that the representations were false or misleading or that they induced the contract. 233 The contract that was made is in fact being sought to be specifically performed by Enzo. One can thus conclude that he was content with its provisions. Indeed, although specific performance was refused, with the exception of the redefinition of the scope of the guarantees, he gets what he contracted for. 234 Accordingly, in my view, Enzo has not made out his case under the Trade Practices Act. 235 The case of Marcello under the Trade Practices Act is even weaker. Mr Raine in his submissions, devotes very little time to it, and Mr Kaye makes the telling points that the only damages that are sought are damages flowing from the fact that the heads of agreement did not become unconditional. There is nothing in the material to suggest that if there hadn't been the pre-agreement representations, what step, if any, Marcello would have taken. Again, much the same can be said about the pre and post-agreement representations as was said in the case of Enzo. 236 I now turn to the cross claims in so far as they rely on the Trade Practices Act. 237 The first cross claim seeks damages "for the time and money spent by the first, fourth and fifth cross claimants in reliance upon the representations embodied in the heads of agreement." The second cross claim seeks to set off against anything due to Enzo or Merkado anything otherwise due from Premier and Hy-Tec and damages. The fourth cross claim seeks to set aside the SSA. 238 There are corresponding cross claims in Marcello's action. 239 The defendants claim that they lost considerable sums of money as a result of these representations. 240 Mr Kikalis' affidavit is evidence that a total of $332,356.87 was paid by Hy-Tec to or on behalf of Kurnell Recycling Park or associated companies. However, of this amount $17,225.88 is for goods and services supplied by Hy-Tec to Kurnell. Of this amount, the great bulk is for amounts paid as "wages" or to "M Russo Consulting" or for products that were supplied by outsiders to Kurnell for which Hy-Tec paid. 241 Mr Kaye puts that but for the misleading and deceptive conduct, Hy-Tec would not have spent the $332,356.87 that I have mentioned earlier, and would not have entered into the agreement to purchase sand from S & P Equipment Pty Ltd which arrangement was made in order to assist KRP securing a lease with Parist Holdings. 242 Of course, so far as $210,000 is concerned, as this was paid for quid pro quo for the purchase of sand, at least the value of the sand needs to be deducted from the $210,000. 243 There is no doubt at all that in the heads of agreement which were signed by Enzo and Marcello, there was a clause which provided that mandatory to this agreement KRP and its directors and share-holders will inter alia maintain production of recycled concrete aggregates for Premier's use at a minimum rate of 140 tonnes per hour 15 hours per day 205 days per annum, and there was also an acknowledgement by KRP (but not the directors and shareholders), that it was presently trading solvently. 244 However, a considerable amount of time was spent during the evidence in an effort to demonstrate, and I believe, successfully demonstrate, that the real position was known to the defendants all along. 245 The case of Enzo and Marcello need to be considered separately because the evidence clearly was that at the relevant times Enzo and Marcello were not on speaking terms, most of the material on which the defendants rely was evidence of conversations between Marcello and various representatives of the defendants which was not admitted as against Enzo. Further, Mr Rafidi's affidavit deposes to him being told by Marcello: "The business is my baby and I'm the managing director. I make all the decisions. My father simply drives trucks and never has any input in the day to day management of the business and anyway it is better that way because we always fight." 246 However, the representations relied on by the defendants are the representations made in the heads of agreement. 247 Mr Rayment puts that the development approval imposed a limit of 25,000 tonnes per annum on production at the relevant site. It is common ground that such a limit on production would render the business valueless. Enzo had been aware of those limitations since 1997 when he read the terms of the development approval. 248 Back in April 1999 when Hy-Tec was first considering purchasing material from KRP the minimum tonnage of production envisaged was 47,000 tonnes. This had increased to 75,000 tonnes of aggregate by May 2000. The letters containing those figures never mentioned the restrictions on production in the development approval. The Russos never advised the finance companies to whom these letters were written that the proposed productions contravened the conditions of the development approval. 249 Quantity of production was of prime importance to PRL if it was going to purchase a share in Kurnell Recycling Park. This is made clear in the mandatory provisions of the heads of agreement,a document that was prepared over a two month period. The heads of agreement in their mandatory provisions make it clear that a minimum production of 400,000 tonnes is required. There is no mention of the requirement of obtaining an "upgrade of the DA". 250 The allegation by the Russos in the witness box that the defendants had known that the DA was restrictive and needed to be upgraded right from the beginning is said by Mr Rayment not to be consistent with the common evidence that in November 2001 Mr Rafidi accused Enzo of deceiving him about the DA and the great amount of heat about the matter that was generated at that time. 251 Mr Lever in reply says that it may be that Robert Proctor, Ronald Sturgiss and Dick and Richard Austen were not aware of the development consent, but that at the end of the day is irrelevant. On Hugh Williamson's evidence, Mr Costa was given a copy of the development consent prior to the execution of the share sale agreement. He says that the evidence about Enzo being party to a conversation in which Mr Rafidi said that Enzo deceived him must be viewed in the context of the whole of the evidence, and that was: "Rafidi said to me that I deceived him about the DA so can you believe it and when I went and saw him the next morning with the summons from the landlord because Mr Rafidi didn't pay any bill because he Mr Rafidi was broke and was living in my house he said to me Marcello deceived me about the DA. I said excuse me you knew about the DA very well Placido Costa, everyone knew about the DA. You deceived yourself. Rafidi said no chance." 252 It is thus necessary to turn to the evidence of Mr Williamson. He swore that he has been a solicitor for many years, originally in England, but since 1990 in Sydney. He swore that he received instructions to send a copy of the occupation agreement in respect of Lot 6 Captain Cook Drive, Kurnell, to Mr Costa. He had a clear recollection of obtaining an envelope of suitable size and shoe horning the documents into an envelope which was slightly too small, and as a precaution binding the edges with cello-tape. Mr Williamson was retained by Marcello. What was in the envelope was the first 30 pages of Exhibits SX1001-1945 being a licence agreement in favour of Emplas International guaranteed by Enzo and Marcello. That is common ground. 253 Despite some initial lapses of memory, as cross examination progressed, Mr Williamson was quite sure that he sent the permissions as well. Mr Kaye asked him, "What do you mean by permissions?" "A. DA and EPA. Q. Was this the development consent was it that you sent? A. Yes."

He repeated this evidence at T551. 254 Hy-Tec is directed at the highest levels by two very experienced persons in the extraction industry, Richard Austen Senior (known as Dick) and Richard Austen Junior. Without disrespect, I will refer to them by the appropriate first name. 255 Richard Austen Junior gave evidence that he did not see the development consent until fairly late in the piece and I am inclined to believe this because he was a rather impressive witness. On the other hand, it would not appear that Richard Austen Junior was that closely involved in the day to day business. He admitted he was not au fait with the money side of it, and his evidence tends to suggest that he did not have a fairly close knowledge of what was happening on the ground. He did, however, swear that Dick Austen had said to Rafidi early in 2001 that he did not want any part of the KRP business. This reinforces the flavour that comes through other evidence that rather than at the top echelons of the company it was the Rafidi level of management that was particularly concerned with this matter. 256 Although criticism was made of Mr Williamson's evidence in particular in that he never ever sent a covering letter with the material he sent detailing what was sent, I accept that the development consent was one of the documents which was shoe horned by him to Mr Costa on 29 February 2000. 257 Mr Williamson presented as an experienced solicitor, a person who had no reason to depart from the standard of recollection one expects from a professional person. He presented in the witness box as a very garrulous fellow but that is probably because lawyers in the witness box tend to get more nervous than other people because they know what can happen to witnesses. I considered his evidence was probably accurate though he did change his views on one occasion. In particular, it was difficult to believe him when he said he did not say much at the meeting in view of his generally garrulous nature. I also thought that he was reconstructing in some of the evidence he gave when Mr Seton SC cross examined him. Having said this, I do accept that he did send the development approval in February 2000. 258 Accordingly, in my view Mr Rafidi and Mr Costa had the development approval in 2000, they were constantly speaking to Marcello, they were visiting the site, they were doing models as to figures and they were advised by Mr Costa when preparing the heads of agreement. I cannot see any room for anything that Enzo said or did to have influenced their decision, especially when it appears to be common ground that the business was thought to be Marcello's and Enzo had the status of a mere truck driver. 259 Accordingly, I do not find the cross claims proved against Enzo. 260 However, as against Marcello, the analysis must be different. 261 I will focus on the second cross claim in proceedings 2603/02. Paragraph 3, together with para 3A deal with representations which found their way into the heads of agreement. Paragraph 9A sets out further representations allegedly made by Marcello on his own behalf, on behalf of Enzo, Kurnell Recycling, Manzel Equipment and Merkado. In my view, for the reasons I have already given, the case that these or any representations were made by Marcello on behalf of Enzo cannot prevail. 262 The representations in 9A are that:

(1) Marcello represented orally to Mr Rafidi in November 2000 that Kurnell Recycling had an "open" DA and was permitted to produce whatever tonnes of product that it liked.

(2) Represented to Mr Rafidi at the same time that Kurnell Recycling had borrowing costs of $12,000 by providing to Mr Rafidi a document containing a statement to that effect.

(3) Represented to Mr Rafidi during November or December 2000 that Kurnell Recycling had a constant waste income of $10 per tonne for bricks and $1 per tonne for concrete and would receive $40 per tonne for the resale of steel mesh and the leftover waste from the recycling of concrete and that Marcello earned $150,000 per annum most of which came through the sale of road base to council.

(4) Represented to Mr Rafidi during November or December 2000 that KRP's total debt was approximately $833,000. 263 So far as the same representations are alleged against Marcello as are alleged against Enzo, the case must fail for the same reason that I have found that Mr Rafidi did have the development approval at the relevant time and was not relying on any representations. However, the additional representations in paragraph 9A need to be considered. The same damages are claimed with respect to these counts as with the earlier representations. 264 Mr Raine puts that the making of any of these alleged representations or if they were made, their lack of truth, was just not established by the evidence. So far as production tonnage is concerned, Rafidi was told in December 2000 by Enzo that the production tonnage referred to in the heads of agreement or the proposed heads of agreement was impossible, and that the machines would need to be upgraded to produce more aggregate. Marcello agreed that he had told Mr Rafidi that he considered the plant could produce 150 tonnes per hour of product, but that 400,000 tonnes of raw product required considerable upgrading but it could be reached. Mr Proctor, who was the defendants' production manager, was closely involved during 2000 and 2001 with the production of product from the Kurnell Recycling plant's site. He and Mr Sturgiss were constantly trying to get the Russo enterprise to increase their production level. He felt that the more that Hy-Tec assisted in increasing the production level, the better it would be for everyone. He said in cross examination (T330): "When did you form the view that the plant could achieve production of 100,000 tonnes per annum if that's the view you formed?"

"A. I never really viewed that it could possibly do it. But it was certainly trying to get into that situation.

Q. You never at any stage had the understanding that it could produce 400,000 tonnes per annum is that right?

A. No sir." 265 As to borrowing costs, the allegation is that Marcello gave Mr Rafidi a profit and loss account which showed that the borrowing costs were about $12,000 per month. Marcello said in cross examination that Rafidi would always ask what the group was doing and he, Marcello, would say that the borrowings were about $2 million, though he would give it a bit more than he thought it was. He said that from the middle of 2000. This is again reinforced by Mr Kikalis' evidence that he told Mr Rafidi in May 2001 that the existing debt was about $2 million. 266 As to waste income, there was virtually no evidence to suggest that any representation in regard to these matters was false or misleading. 267 As to debt level, Susan Gray, the business manager of the Russo group, prepared some figures which showed that the debt level was about $1.32 million though Mr Kikalis in mid-2001 showed her a mistake which made the debt level about $1.83 million. Certainly, both Mr Kikalis and Mr Rafidi were aware of a debt level in the vicinity of about $1.9 million by January/February 2001. This was far more than the $833,000 figure represented to Mr Rafidi on his evidence in November or December 2000. 268 It seems to me that there is very little material to show that any information which may have been conveyed to Mr Rafidi or his colleagues from the Russos when weighed with all the other information which they had obtained by working with Marcello on the Kurnell site, in seeing the figures, in having access to Susan Gray, in seeing documents themselves means that I should find that the representations, assuming they were made, were representations which brought about any damage to the defendants in entering into the heads of agreement or in the sale of shares agreement. 269 It must also be remembered that one must be very careful when allegations are made that people have entered into an agreement to buy a business and that the business has been unsuccessful in trading through the alleged losses in the business to the representation; see eg Blacker v National Australia Bank Ltd (2001) 23 ATPR 41-817 at 42,974 and following. 270 Accordingly, in my view, the cross claims against Marcello have not been made out. 271 E7. As I have found that Marcello's action fails, it is unnecessary to consider in that set of proceedings the third cross claim for contribution. 272 This only leaves the cross claim for contribution in the action brought by Enzo. As the only party in the defendants' camp which was bound by the SSA is Resource, the verdict can only be against it. It is not a claimant under the third cross claim. It follows that this cross claim is otiose and may be dismissed. I strongly suspect that the real relations between Resource and the other defendants is a matter upon which I have not been given any substantial material because it was not relevant to the points I had to decide. 273 Z1. I need to note my impressions of the demeanour of the various witnesses. I will deal with the witnesses in the order in which they were cross examined before me. 274 Enzo was a rather excitable witness who did not always answer the question asked, rather the one he might have liked to have been asked, but generally speaking, his evidence was credible. However, it must be remarked that his position did shift from the commencement of the case where he tended to rely on the heads of agreement, to when he gave evidence when he virtually repudiated them. 275 So far as Marcello is concerned, his credit was shaken to a degree by the fact that he did appear to have no compunction about putting incorrect figures to financiers and in some respects, his evidence was contrary to objective facts. However, this did not happen to a very great extent and he gave the view of a small business man, a little out of his depth, who would be prepared to exaggerate on occasions his company's financial position, but was otherwise credible. 276 Susan Gray gave her evidence clearly and was eminently believable. I also entirely accept the defendants' chief financial officer Mr Kikalis. 277 Mr Rafidi was not tested to a great extent in cross examination, but to what extent he was tested he showed himself to be very fallible. I have already remarked on the singularity of the close correspondence of Mr Rafidi's affidavit and Mr Costa's affidavit and his denials that he and Mr Costa put their heads together, a denial I find hard to accept. His denial of knowledge of the letters Mr Kikalis wrote to KRP's creditors and the Australian Tax Office is also hard to accept. Where there was a direct conflict of evidence, I would tend not to accept Mr Rafidi's evidence. 278 Mr Richard Austen Senior gave evidence and was hardly cross examined. He was not at the coal face and his credit has nothing to do with this particular case. Mr Richard Austen Junior appeared to be a witness whose evidence should be accepted without question, as was Mr Proctor. Mr Sturgiss was a very precise gentleman, but after Mr Raine's cross examination I did not feel I could place entire confidence in what he said. Mr Costa's evidence I have already commented on and I regret to say that I found it hard to accept his evidence in general where it was contradicted by others. Mr Madden's credit was not challenged. Mr Thomas, solicitor, also was a person who escaped challenge on credit. Mr Williamson, as I have said, gave accurate evidence, though his garrulous manner in the box detracted a little from his evidence, and I consider that his answers to Mr Seton SC, involved a lot of reconstruction. 279 I have made these comments on demeanour because I believe I ought to do so. However, as can be seen from what I have set out above, the findings of credit are not critical to the result in this case.

280 Z2. I have found quite a number of unusual features in this case. These seem to have come about, at least in part, by the fact that Marcello was distant from his father. Marcello was negotiating with people on the other side who may have thought, at least for a while, that he was negotiating on behalf of his father, but was not. On "the other side" we have three distinct interests, the Rafidi interests, the Costa interests and the Austen interests. These interests move and overlap each other at different times. There are also some trust relationships which have only been revealed to the "tip of the iceberg" degree. 281 The instant case also portrays a very odd situation in the defendants' camp. The defendants include people who are very very experienced in the field of excavation and concrete and have quite considerable expertise. The Russos are people who have grown up in a small hands-on business. The defendants, using the term generally for the moment, with their own interests in mind, go into help the Russos become more productive. The Russos, father and son, have disagreements, the father wants to go out of the business; the son sees himself in a bigger enterprise. There may have been a bit of puffing on behalf of Marcello, but all the cards are in the hands of the defendants. They are in a position to look at and check anything they like, they have an experienced commercial solicitor on their team, in the Austens they have considerable executive experience and they have people like Mr Proctor who is very good at the coalface.

282 With all this expertise, the heads of agreement which were drafted give absolutely no protection to the Russos, may well be an illusory contract because of the subject to board approval clause, yet contain these mandatory warranties which on the bulk of the information that has come before me, everyone knew were unattainable. Then when they are sued for damages by the Russos, they put on the cross claim and claim that everything they did was motivated by false representations made by the Russos. Even looking at the case globally, it just does not add up. 283 One might ask why the deal collapsed in November 2001. I am not able to answer this question; indeed it is not posed for me to answer. I suspect that initially some in the defendants' camp saw that there was real potential in KRP, but as the detailed plans developed, there were too many contras. The Messrs Austen, who were never too keen on the project, lost patience and Mr Rafidi had to cover his own back by making it appear that it was not his fault that the business was likely to produce a loss. Thus, the blame for failure was cast onto the Russos. 284 The result is that all claims fail other than Enzo's claim to a moderate extent. I have reached this result through long tortuous reasoning process, but it also might be thought to represent simply that there was only one formal contract and that was the SSA, and on every other aspect of the case parties worked together in common hope without actually committing themselves. Enzo did commit himself in the sense that he handed over complete control of the business by February 2001.

285 Z3. So far as costs are concerned, it would seem to me that in Marcello's action, costs follow the event so that the plaintiff pays the defendants' costs of the action and the defendants pay the plaintiff's costs of the cross claim in so far as they were not already costs of the claim. In Enzo's action, the cross claims fail, but Enzo has been partly successful. It would seem to me that Enzo should obtain two-thirds of his costs. However, I will leave the matter of costs to be argued out when the short minutes are brought in. 286 Z4. I have found that Marcello's action fails. All the cross claims fail for the reasons I have given. 287 However, in Enzo's proceedings I have found that he is entitled to the first instalment of the purchase price under the SSA, and the stamp duty he has paid, together with damages for the non-performance of the covenant to keep Enzo indemnified against attacks by guarantors within a limited range.

288 Accordingly, so far as the amount of that claim is concerned, I need to refer the question to a Master to determine the damages unless the parties can present a very short argument on the point before me. For present, I need only stand the matter over for that question to be considered when short minutes are brought in. 289 Thus, as I have indicated, I will publish these reasons and then I will have the matter listed at 9.30 am on 10 April 2003 for the purpose of considering short minutes. However, should counsel be of the view that discussion on the short minutes will take more than 10 minutes, or if counsel wish to arrange some substitute day which is more convenient, this can be arranged with my Associate so long as she is contacted at least the week before.

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