CO-OWNERSHIP-Property Law Act 1958-s.225-application for sale of allegedly co-owned property.

**RESULTING TRUST-**claimed contribution by applicant to the purchase money used to buy land-claimed purchase money resulting trust in favour of applicant.

Respondents rely on an alleged term of the relevant agreement to rebut presumption that at the time of making contributions to the purchase price, the applicant did not intend to benefit the respondents-that any acquisition by the applicant of an interest in the land by way of resulting trust was subject to the applicant's compliance with an alleged term of an agreement amounting to an alleged condition precedent to such acquisition-alleged term not proved.

Respondents also relied on an alleged subsequent express oral renunciation by the applicant of any interest acquired by resulting trust-also found not proved.

**AGENCY-**Respondents as purchasers relied in the alternative on a representation of a company director of the applicant to the respondents that the applicant renounced its interest in the land by way of resulting trust or otherwise-reliance on representation-representation found to be false-whether applicant can deny agency of the company director, or is otherwise estopped from denying the authority of its director to so misinform the respondents-held that respondents not entitled to so rely.

**SALE UNDER S 228 PROPERTY LAW ACT 1958-**Nature of the discretion to order a sale-Calverley v Green [1984] HCA 81-Yeo v Brassil [2010] VSC 344-orders made for sale upon finding of resulting trust in favour of the applicant.

RETAIL LEASES-AGREEMENT FOR LEASE_-_whether oral agreement for lease-applicant in occupation of land as licensee, but claimed to be subsequently occupying pursuant to oral agreement for lease with the respondents as unidentified principals-evidence-agreement for lease proved.

**AGREEMENT FOR LEASE-WHETHER TERMS SUFFICIENTLY CERTAIN-**whether sufficient

certainty of essential terms necessary to prove an agreement to lease-sufficient certainty found-upon proof of essential terms of an agreement for lease, powers of the Tribunal to order the respondents to enter into a written lease containing terms as are usual in leases of like premises; Masters v Cameron [1954] HCA 72; (1954) 91 CLR 353; Brunswick Development Pty Ltd v Shock Records Pty Ltd [1999] V Conv R; Australvic Finance Pty Ltd v Elcheikh [2010] VCAT 956..

**AGENCY-AGREEMENT FOR LEASE-UNIDENTIFIED LANDLORD-**respondents found to be unidentified principals to the agreement for lease-apparent authority of an individual to act on their behalf- whether representations made by the individual had the legal effect of binding the respondents as principals-found that the respondents were so bound.

AGREEMENT FOR LEASE-**WHETHER CLAIMED OPTION IS EXERCISED WHERE LITIGATION OVER OCCUPIER'S CLAIMED RIGHTS IS SUBSISTING-**applicant found by its

conduct to have communicated its desire to exercise the option alleged to be a term of the agreement for lease.

Doolkoora Pty Ltd (ACN: 606 167 444), Peninsula Property Group Aust Pty Ltd (ACN: 620 720 130)

Stumpy Gully Holdings Pty Ltd v Doolkoora Pty Ltd (Building and Property) [2022] VCAT 564

1. It is declared that the applicant is an equitable co-owner of land at 2994 Frankston Flinders Road, Balnarring, Victoria ("the land"), as to an undivided fifteen ninety-sixths of the land, and that the respondents hold their interest in the land on a resulting trust to this extent for and on behalf of the applicant.

2. It is declared that on or about 7 August 2017, the applicant entered into a valid, subsisting and enforceable agreement for lease with the respondents in respect of the land, containing the following terms:

(a) the lease would provide that the applicant would pay to the respondents rent of $9,166 plus GST per month;

(b) in addition to the payment of rent, the applicant would also pay the respondents outgoings in respect of the land;

(c) the initial term of the lease would be three years commencing 1 August 2017;

(d) the applicant would have the right to exercise two options to extend the term of the lease for a further three years in respect of each option (such that if both options were duly exercised, the lease will extend to 31 July 2026);

(e) the rent will be increased in line with the CPI at the commencement of each new year of the term, and that rent reviews be conducted to market at the commencement of each new term;

(f) such further terms and conditions (as are not inconsistent with the above terms) as are usual in leases of premises for use as service stations which sell car and truck fuel and related goods, and which also provide services to retail customers; and

(g) the parties will enter into a written lease between the applicant as lessee on the one hand and the respondents as lessors (being the registered proprietors of the land from 2 September 2017), and containing the above terms, and such other terms as are implied by the Retail Leases Act 2003 (Vic).

3. Pursuant to the power to do so in s 91(1)(a) of the Retail Leases Act 2003 alternatively by way of final mandatory injunction, the respondents must enter into a lease with the applicant containing the above terms, and such further terms and conditions as are usual in leases of premises for use as service stations which sell car and truck fuel and related goods, and provide services to retail customers. In the event that the parties cannot agree on the full extent of these further terms, liberty to apply to the Tribunal.

4. By consent, Mr Kimball Turnley of the applicant must provide the guarantee stipulated in the LIV Lease, if required by the respondents.

5. It is declared that by its conduct, the applicant exercised its first option to extend the term of the lease to 31 July 2023.

6. Pursuant to s 228(2)(a) of the Property Law Act 1958, the Tribunal orders that the land be sold, but subject to the agreement for lease declared by order 2**,** or the lease contemplated by order 3, to the effect that the proceeds of sale will be applied as follows, and in the following priority:

(a) Payment of the real estate agent's commission or fee, including the auctioneer's fee and other expenses of sale;

(b) the discharge of any registered encumbrance on the land;

(c) payment of any outstanding rates, charges, taxes and imposts which have not already been paid by the respondents;

(d) payment of the reasonable legal costs associated with the sale and conveyance of the land;

(e) the net balance to be paid to the parties in the following proportions:

Fifteen ninety-sixths of the net balance, but from which must be deducted outgoings from 1 September 2017 for which the applicant is liable to pay to the respondents, and paid to the respondents

The balance of the net balance, from which must be deducted the amount described in order 3(f), and paid to the applicant.

(f) payment to the applicant of a fifteen ninety-sixths share of the net income derived from the land since 1 August 2017 (being the date that the respondents settled their purchase of the land), or from such other date that the respondents first received income from the land.

7. Liberty to apply in respect of the other terms of sale, including liberty to

apply to the principal registrar to obtain the Tribunal's pro-forma terms of sale as may assist the parties to effect the requirements of order 6.

8. The respondents and/or their agents are permanently restrained from taking any action to recover possession of the land in reliance upon their notice to quit dated 3 April 2018.

9. Costs reserved. Should there be any application for costs, the parties must confer with a view to reaching agreement on the dates for the filing and exchange of written submissions, failing which the Tribunal will make orders.

10. Liberty to apply generally, including for assessment of applicable outgoings payable by the applicant to the extent that they have not been paid by the applicant, and for assessment of income payable to the applicant by the respondents.

The resulting trust claim - whether, as a condition of acquiring an interest in the land, Mr Turnley agreed to procure finance to enable SGH to purchase the business and the land.

The resulting trust claim - whether Mr Turnley on behalf of SGH subsequently relinquished any interest acquired by SGH in the land.

The resulting trust claim - whether Mr Forrest on behalf of SGH subsequently relinquished SGH's interest in the land.

The resulting trust claim - whether SGH made a financial contribution towards the purchase of the land.

Discussion and conclusion-whether there was an agreement for lease

Terms of the agreement for lease-were they sufficiently certain?

Whether the respondents bound as unidentified principals

Instruments Act 1926-whether the agreement for lease cannot be enforced by SGH

1 The applicant seeks declaratory relief in the Tribunal in respect of a claimed interest in land at Balnarring, Victoria, having allegedly paid $150,000 of the total $960,000 purchase price paid to the vendor. The $810,000 balance of the purchase price was paid by the respondents.

2 The respondents say that they purchased the whole of the land and the business from a Mr Forrest. They say that Mr Forrest, at the time of their alleged purchase, was a director of the applicant, and was the named purchaser in contracts to purchase each of the land and the business. They say that Mr Forrest had informed them, prior to their purchase, that the applicant had renounced any interest it may have had in both.

3 The applicant says that it is the owner of the business on the land. The respondents contend that they own the business. That dispute cannot be determined by the Tribunal, it having no jurisdiction under the Property Law Act 1958 to make a declaration in regard to the ownership of a business.

4 The land is occupied by the applicant. It seeks declaratory relief in respect of a claimed agreement for lease of the land (alternatively a lease by parol) with the respondents, as a consequence of an oral agreement with Mr Forrest who the applicant contended, at the time of the alleged agreements, was acting with the ostensible authority of the first respondent and was also the sole director of the second respondent.

5 Since about 1 December 2016, the applicant Stumpy Gully Holdings Pty Ltd ("SGH"), has occupied land at 2994 Frankston Flinders Road, Balnarring,

Victoria (the "land"), where it operates a service station and motor vehicle repair business known as "Balnarring Motors" ("the business").

6 It is common ground that the land constitutes "retail premises" within the meaning of section 4(1) of the Retail Leases Act 2003 (the "RLA").

7 On 2 September 2017, Doolkoora Pty Ltd ("Doolkoora") and Peninsula Property Group Aust Pty Ltd ("Peninsula") (together "the respondents") became joint registered proprietors of the land in fee simple as tenants in common, with each entitled to one of two equal undivided shares in the land. They continue to hold the land in that capacity.[1]

8 By notice to quit dated 3 April 2018 (the "notice to quit"), the respondents served on SGH a one month's notice to quit the land.

9 SGH has continued to occupy the land pursuant to the terms of an injunction granted by this Tribunal on 21 May 2018.

10 SGH relies for its claim to be the beneficiary of a purchase money resulting trust upon its having paid the $150,000 deposit towards the total of $960,000 paid for the land.

11 By its Third Further Amended Points of Claim dated 10 December 2019 (the "TFAPC") in the proceeding, SGH seeks:

(a) an order pursuant to s 228(2)(a) of the Property Law Act 1958 for the sale of land on the basis that, by the creation of a purchase money resulting trust in its favour, it holds an equitable interest in the land as a tenant in common with the respondents;

(b) a declaration that it has a right to occupy the land under:

(i) an alleged agreement for lease made with Mr Forrest on behalf of the respondents on or about 7 August 2017; alternatively

(ii) an alleged lease "by parol" (within the meaning of s 54(2) Property Law Act 1958) made with Mr Forrest on behalf of the respondents from "in or about August 2017"

for an initial term of three years from 7 August 2017 to 6 August 2020, with an option for a further three years (which SGH wishes to be taken as having exercised) to 6 August 2023, and a further three-year option which, if exercised, would extend the total duration of its occupation of the land to 6 August 2026;

(c) if the Tribunal declares that the claimed agreement for lease or the alternatively claimed lease by parol is enforceable, an order requiring the respondents to enter into a written lease on the terms allegedly forming part of the alleged agreement for lease or lease by parol, together with such other terms and conditions as are usual in leases of premises for use as service stations which sell car and truck fuel and related goods and services to retail customers; and

(d) a permanent injunction restraining the respondents from relying on or taking any action pursuant to the notice to quit.

The respondents' defences and counterclaims in the proceeding

12 The respondents deny the existence of a purchase money resulting trust in favour of SGH, by reason of:

(a) Mr Turnley of SGH having allegedly agreed with Mr Forrest, a person who at or shortly after the time of the alleged agreement held the contractual right to purchase the land, that any interest acquired at law in the land by SGH making the deposit payment of $150,000 was subject to Mr Turnley having subsequently procured the balance of the required funds for the purchase of the land by SGH (that is to say,

$810,000), a condition that the respondents allege was not met;

(b) SGH also having allegedly renounced any interest in the land when, the respondents allege, Mr Turnley accepted that he was unable to procure the balance of the required funds for the purchase of the land by SGH.

13 The respondents also deny the existence of the alleged agreement for lease or a lease by parol.

14 By their counterclaims, the respondents therefore seek:

(a) a declaration that SGH has only ever occupied the land on the basis of an "occupation licence" entered into between the respondents and SGH in early August 2017, on a month-to-month basis only from 1 August 2017 (when the respondents settled their purchase of the land), for a monthly licence fee of $9,166.66 plus GST per calendar month (and therefore not pursuant to the claimed agreement for lease, or lease by parol);

(b) alternatively, a declaration that insofar as it is found that the applicant occupies the land pursuant to an agreement for lease, it was of a month- to-month nature only, without the claimed three-year term and options;

(b) an injunction, requiring that SGH give the respondents vacant possession of the land, notice to quit having been given to SGH; and

(c) if, contrary to the respondents' case, an agreement for lease or lease by parol is found, damages pursuant to section 80 of the Retail Leases Act 2003 (the "RLA") caused by SGH's alleged unconscionable conduct in, among other alleged failures, failing to be reasonably willing to negotiate the rent under any such agreement for lease or lease.

15 In respect of the claimed agreement for lease, in their final submissions (and not relied on in any of their various defences filed in the proceeding), the respondents rely on the operation of s 126 Instruments Act 1958 as preventing the applicant from bringing a claim based on an alleged agreement for lease, there being no written agreement, or memorandum or note of the alleged agreement signed by the respondents or a person duly authorised by them.

16 In respect of the alternatively claimed lease by parol, the respondents rely on the proposition that at the time it was allegedly entered into, it could not be regarded as having taken effect in possession within the meaning of s 54(2) of the Property Law Act 1958, and therefore the claimed lease by parol was not a "lease" within the meaning of the Retail Leases Act 2003, being nothing more than an "interest at will" within the meaning of s 54(1) Property Law Act 1958.[2]

17 In their reasons for contending that no lease by parol ever arose, the respondents also rely on a further submission that, in relation to SGH's alternatively claimed agreement for lease, it follows that the Tribunal has no jurisdiction, because there is no "retail tenancy dispute" within the meaning of the RLA.[3]

18 I disagree. Were the Tribunal to deny relief to SGH in respect of the claimed lease by parol, on the basis put forward by the respondents, this has no bearing on the jurisdiction of the Tribunal in respect of the alternatively claimed agreement for lease. This jurisdictional objection is dismissed.

19 In their final submissions also, the respondents also contend that that the Tribunal does not have jurisdiction to hear a claim for relief based solely on an alleged breach of an agreement, unless the alleged agreement falls within the definition of a "consumer and trader dispute" contained in s 184(1) of the Australian Consumer Law and Fair Trading Act 2012.[4] They submit that the claim as they apprehend it, based on an alleged breach of the Acquisition Agreement, should be dismissed accordingly.

20 I disagree. SGH does not make a claim for breach of the Acquisition Agreement. The TFAPC makes plain that the total of $150,000 paid by SGH allegedly to the vendor of the land and and/or its agent is the ground on which SGH relies to prove the creation of a resulting trust. SGH therefore seeks an order for the sale of the land as co-owner on the basis that it holds an equitable interest in the land as a tenant in common with each of the respondents. This jurisdictional objection of the respondents is also dismissed.

21 The further contention in the respondents' Fourth Amended Points of Defence and Counterclaim[5] dated 18 November 2020 (the "FADAC") that this Tribunal does not have jurisdiction to adjudicate the issue as to whether SGH "[holds] an equitable interest in the land" is also dismissed.[6]

22 SGH also contended, although not in this proceeding, that it purchased a service station and motor vehicle repair business on the land. Doolkoora, on the other hand, sought a declaration in paragraph 68 of the FADAC that it has been the owner of the business since about 1 August 2017, and requiring SGH to do all things necessary to record Doolkoora as the owner of the business.[7]

23 On 9 December 2019, on the application of SGH, I dismissed Doolkoora's claim for a declaration in relation to the business, on the basis that the Tribunal does not have jurisdiction to hear such a claim.[8]

24 SGH was incorporated on 5 September 2016, for the purpose of Mr Kimball Turnley ("Mr Turnley"), his son Mr C Turnley ("Mr C Turnley") and Mr Stewart Forrest ("Mr Forrest") purchasing the business and the land as a joint venture among themselves.

25 Its shareholders in equal proportions are Mr Turnley, Mr C Turnley and Mr Forrest's wife Ms Myers ("Ms Myers") representing the interest of Mr Forrest.

26 Mr Turnley and Mr C Turnley were appointed directors of SGH on 5 September 2016.

27 Ms Myers was appointed a director of SGH on 5 September 2016, and ceased on 20 December 2016.

28 Importantly, Mr Forrest succeeded Ms Myers as a director of SGH on 20 December 2016, and ceased on 1 September 2017.

29 The respondents rely upon Mr Forrest's directorship of SGH at the time of his alleged oral assurances that SGH's had renounced any interest in the land, as binding upon SGH.

30 Mr Turnley and Mr C Turnley are now the sole directors of SGH.

31 Doolkoora was first registered as a company on 1 June 2015.

32 At all relevant times, the sole shareholder and director of Doolkoora has been Ms Belinda Fraser ("Ms Fraser").

33 Peninsula was incorporated on 27 July 2017, with joint shareholders Ms Fraser and Mr Forrest.

34 Ms Fraser and Mr Forrest were appointed directors of Peninsula on 27 July 2017, and Mr Forrest was appointed company secretary.

35 Upon Ms Fraser's directorship also terminating on 27 July 2017, Mr Forrest became sole director and company secretary of Peninsula.

36 Mr Forrest held those positions until 8 February 2018, when they were both assumed by Ms Fraser, consequent upon Doolkoora becoming the sole shareholder of Peninsula. Ms Fraser is now the sole director and secretary of Peninsula.

37 SGH relies upon Mr Forrest's directorship of Peninsula at the time of his alleged representations giving rise to the claimed agreement for lease (alternatively lease by parol) as binding Peninsula, and the common law concerning the ostensible authority of Mr Forrest, when making such alleged representations, as otherwise binding Doolkoora.

38 Mr Turnley has a background in management, sales and marketing in the manufacturing sector. Mr Turnley is married to Mrs Eileen Turnley ("Mrs Turnley")

39 Mr C Turnley is the Turnleys' son. At one time Mr C Turnley was employed by Civil Direct Pty Ltd, a labour hire company then owned by Mr Forrest.

Mr C Turnley and Mr Forrest became friends. As a result, Mr Forrest

attended the birthday party of Mr C Turnley's children in August 2011, and that was the occasion when Mr and Mrs Turnley first met Mr Forrest.

40 Mr and Mrs Turnley subsequently purchased the business of Civil Direct Pty Ltd, using a company owned and controlled by them, CITEK Group Pty Ltd ("CITEK").

41 Ms Kate Straub is the domestic partner of Mr C Turnley.

42 Mr Forrest lives and works in the Balnarring area.

43 Mr Forrest gave evidence that he has a limited formal education, having left school when he was 12 years old. He describes himself as having worked for himself since aged 17.

44 Ms Fraser gave evidence that she met Mr Forrest and Ms Myers socially about 20 years ago. They became friends, and were involved in the same school community, including the same book club.

45 It follows that Mr Forrest has been known to the Turnleys and Ms Fraser for many years prior to the events leading to this proceeding, but the Turnleys and Ms Fraser were not acquainted.

46 In addition to the failed business venture between the Turnleys and Mr Forrest with which this proceeding is concerned, the same parties were involved in another business venture together.

47 In about October 2015, Mr Forrest approached Mr Turnley and Mr C Turnley with an opportunity to start a restaurant business in Balnarring as a three-way joint venture. The restaurant subsequently became known as

48 Paddock Securities Pty Ltd ("Paddock Securities") was incorporated as the operator of that business, a company in which the interests associated with each of the three participants (with Ms Myers owning shares on behalf of Mr Forrest) were equal shareholders.

49 The Gourmet Paddock business opened in November 2017, and it was managed by Mr Forrest. It closed in November 2018. Mr Turnley gave evidence that all monies invested by him (through CITEK) in Gourmet Paddock were lost, and that none of CITEK's invoices for providing Mr C Turnley's services in connection with the fit-out of the premises were paid.

50 Mr David Gibbs ("Mr Gibbs") is the principal of a legal practice David Gibbs & Associates ("DGA") in Hastings, also on the Mornington Peninsula.

51 Mr Turnley gave evidence that at all times Mr Forrest had led him to believe that Mr Gibbs was acting on behalf of SGH in relation to the purchase of the business and the land, and for Paddock Securities in relation to the Gourmet Paddock business.

52 By their Further Amended Points of Claim dated 30 April 2019, SGH and Mr Turnley (then also an applicant), made a claim for damages against Mr Gibbs for alleged breach of his duties of retainer owed to Mr Turnley and SGH. That proceeding was discontinued by consent orders dated 20 May 2019, the first day of the hearing.

Mr Bristow resolves to sell the land and the business on the land

53 At all relevant times prior to 2 September 2017, a Mr David Bristow ("Mr Bristow") was the registered proprietor of the land.

54 In approximately July 2016, Mr Bristow engaged an agent Paton Estate Agents ("Paton") to sell the land. At the same time, the owner of the business Balnarring Motors Pty Ltd, a company associated with Mr Bristow, engaged Paton to sell the business.

55 SGH alleges that its payments as deposit for the purchase of the land amounting to $150,000 were made pursuant to the terms of what became to be described in the proceeding as the "acquisition agreement", acknowledged by the parties as having been entered into in July 2016, among:

(a) Mr Turnley;

(b) Mr C Turnley; and

(c) Mr Forrest (the "Acquisition Agreement").

56 The Acquisition Agreement dealt with the basis on which the Turnleys and Mr Forrest proposed to purchase the business from Balnarring Motors and the land from Mr Bristow, for the purpose of jointly continuing the existing business in the name of a corporate vehicle, later identified as SGH.

57 SGH's TFAPC particularises the Acquisition Agreement as follows:

9A The Acquisition Agreement [was] partly oral and partly to be implied.

Insofar as it [was] oral, it [was] constituted by conversations in or about July 2016 between [Mr C Turnley], Mr Turnley and Mr Forrest, whereby Mr Forrest suggested to [Mr C Turnley] and Mr Turnley that they could jointly purchase Balnarring Motors and the [land].

It was agreed that Mr Turnley would procure funds for the purchase of Balnarring Motors and that each of [Mr C Turnley], Mr Turnley and Mr Forrest would be entitled to equal shares in the entity that ultimately became the owner and operator of Balnarring Motors.

It was further agreed that Mr Turnley would procure funds for the deposits for the purchase of the Land (consisting of three payments of $50,000 each) and that each of [Mr C Turnley], Mr Turnley and Mr Forrest would be entitled to equal shares in the entity that ultimately became the registered proprietor of the [land].

Insofar as it is to be implied, it is to be implied by law to the extent necessary to give business efficacy to the agreement.[9]

58 On 29 July 2016, Mr Forrest signed an offer to Mr Bristow to purchase the land (the "Land Purchase Contract"), and also an offer to Balnarring Motors Pty Ltd to purchase the business (the "Business Purchase Contract"). Both offers were later accepted by the respective vendors, and they became unconditional in early August 2016.

59 It is necessary, particularly in order to better address the substance of the evidence of Mr Forrest, who was called by the respondents, to refer to their terms.

60 The Business Purchase Contract[10] provided:

Balnarring Motors Pty Ltd...as trustee for the Balnarring Motors Unit Trust

The earlier of 6 months from the date of signing this Contract or, on taking possession of [the land].

The vendors require this agreement to be completed contemporaneously or earlier with Contract of sale (sic) of Land between David William Bristow as Vendors and the Purchaser herein ("other property"). [If] the agreement for the sale of the other property is rescinded or terminated the vendor may rescind this agreement by giving notice to the purchaser.[11]

The vendors and purchaser shall contemporaneously with the execution of this contract execute the contract of sale of land in respect to the other property.

The purchaser may nominate a substitute or additional transferee, but the names purchaser remains personally liable for the due performance of all the purchaser's obligations under the contract.

61 The Land Purchase Contract[12] provided:

(a) $50,000 on signing

(b) $50,000 6 months from the date of sale

(c) $50,000 9 months from the date of sale

...12 months from the date the Vendor Signs this Contract of Sale.

The Vendor requires this agreement to be completed contemporaneously or earlier with the [Business Purchase Contract]. [If] the [Business Purchase Contract] is rescinded or terminated the vendors may rescind this agreement by giving notice to the purchaser.

Upon payment by the purchaser of the amount due to the vendor pursuant to special conditions 12(a) and 12(b) and all amounts payable under the [Business Purchase Contract] set out in Special Condition 14.1 and the expiration of three months from the date the vendor has signed this contract of sale, the purchaser may enter into occupation of the premises subject to the purchaser complying with general condition 23.2 and in such circumstance the purchaser shall from the date of possession be responsible for payment of all periodic outgoings...[In] any event the purchaser will enter into occupation at the expiration of six months from the

62 In his evidence, Mr Forrest commonly referred to the Land Purchase Contract and the Business Purchase Contract being "back-to back" agreements.

63 What I took him to mean was that his understanding of the effect of the special condition (a) of the Business Purchase Contract and special condition 14 of the Land Purchase Contract was that, at the respective vendor's option, the completion of the purchase of each of the business and of the land depended upon the completion of the other. Mr Forrest's understanding is supported by the proper construction of the terms of the Land Purchase Contract and the Business Purchase Contract. It will be seen, however, that by reason of subsequent amendments to these contracts, that did not remain the case.

(a) whether, by SGH (by itself or, as alleged, by CITEK on SGH's behalf) making payments between 29 July 2016 and 12 May 2017 amounting to $150,000 towards the purchase of the land, SGH is entitled to claim that the respondents hold their interest in the land on a purchase money resulting trust in favour of SGH (the "resulting trust claim"); and, if so,

(b) whether SGH is now entitled as equitable co-owner to an order for the sale of the land pursuant to section 228(2)(a) of the Property Law Act 1958, and division of the proceeds in accordance with the respective contributions of the co-owners (the "order for sale claim");[13]

(c) whether SGH has an agreement entered into on 7 August 2017 for lease of the land with the respondents from a date in August 2017 (and if so, what date) and, if so, on what other terms,[14]14 (the "agreement for lease claim"); and

(d) alternatively to (c), whether SGH entered into on 7 August 2017 a lease by parol of the land (within the meaning of s 54 of the Property Law Act 1958) with the respondents from a date in August 2017 (and if so, what date) and, if so, on what other terms.

(a) Was it agreed between Mr Forrest and Mr Turnley as part of the conversations in July 2016 comprising the Acquisition Agreement, as contended by the respondents, that any interest in the land by resulting trust that may have accrued to SGH upon making contributions by way of payment of the deposit to the purchase price of the land, was conditional upon Mr Turnley procuring the entirety of the funds necessary for the joint venture vehicle (SGH was not then incorporated) to complete the purchase of the business and the land (the "alleged condition precedent"?[15]

(b) Did Mr Forrest and Mr Turnley expressly agree in about July 2017 that, as a consequence of Mr Turnley failing to procure the balance of the funds required to purchase the land, SGH would forego any entitlement to an interest that it may have obtained in the land as co-owner by reason of having contributed by way of the deposit to the purchase price (the "alleged SGH/Forrest relinquishment agreement")?

(c) Is SGH is in any event bound by Mr Forrest's alleged representation to Ms Fraser on behalf of the respondents in early July 2017 (viz. prior to 1 September 2017, when his directorship of SGH ceased), that SGH renounced any entitlement SGH might have acquired in the land, and/or that if she or an entity nominated by her paid the balance of the purchase price, she or that entity would thereby own the business and the land outright (the "alleged SGH/Fraser relinquishment agreement"?

(d) Did SGH make a financial contribution towards purchase of the land pursuant to the Land Purchase Contract, such that a resulting trust arose in favour of SGH in proportion to the contribution of funds made by SGH for the purchase of the land?

(a) the alleged express term of the Acquisition Agreement agreed with Mr Turnley in July 2016, being the condition precedent, was wholly oral; and

(b) Mr Turnley's alleged renunciation of interest on behalf of SGH in July 2017,

were wholly oral.

67 In particular, the respondents rely on the evidence of Mr Forrest:

(a) in support of the alleged existence of the condition precedent;

(b) in support of the alleged SGH/Forrest relinquishment agreement, the evidence being that Mr Forrest represented to Ms Fraser, during the period that Mr Forrest was a director of SGH, that SGH had renounced any interest in the land; and

(c) in denying that SGH occupies the land by way of an agreement for lease alternatively a lease by parol.

68 It was only by their pleading dated 17 January 2020,[16] that the respondents abandoned their cross-claims for damages against Mr Forrest for loss and damage as may be incurred by them, if the Tribunal finds:

(a) that Doolkoora did not purchase the business, as it was then contending it had; and/or

(b) that SGH is entitled to occupy the land pursuant to the claimed agreement to lease alternatively lease by parol; and/or

(c) that SGH has any interest in the land whatsoever.

The resulting trust claim-the first sub-issue-whether Mr Turnley agreed to procure finance to enable SGH to purchase the business and the land

69 The respondents bear the onus of proof in respect of the alleged condition precedent.

(a) Mr Turnley would procure funds for the purchase of the business and that each of Mr Turnley, Mr Forrest and Mr Craig Turnley would be entitled to equal shares in the entity that ultimately became the owner and operator of the business; and

(b) Mr Turnley would procure funds only to pay for the deposit for the purchase of the land (consisting of three payments of $50,000 each), that the balance of the funding for the purchase of the land was to be obtained from a bank or other lenders, and that each of Mr Turnley, Mr Forrest and Mr Craig Turnley would also be entitled to equal shares in the entity that ultimately became the registered proprietor of the land.[17]

71 For direct proof of its case concerning these alleged terms of the Acquisition Agreement, the applicant relies solely on the evidence of Mr Turnley and Mr C Turnley.

72 The respondents deny the term of the Acquisition Agreement alleged by the SGH to the effect that Mr Turnley was obliged only to pay the deposit of

$150,000 to buy the land, and that the balance of the funding for the purchase of the land was to be obtained from a bank or other lenders.

73 They allege, in contrast, that Mr Turnley agreed to a term of the Acquisition Agreement to the effect that:

(a) Mr Turnley would procure[18] 100% of the funds to purchase the business and the land; and

(b) in the event that Mr Turnley was unable to do so, he and Mr Craig Turnley would forego any interest that they would otherwise have held or otherwise held in the business and the land.[19]

74 For direct proof of their case concerning these alleged terms of the Acquisition Agreement, the respondents rely solely on the evidence of Mr Forrest.

75 The respondents also submit that the existence of the term that Mr Turnley agreed to procure the funds necessary to settle the purchase of the business and the land is consistent with the alleged subsequent conduct of Mr Turnley subsequent to the date of the Acquisition Agreement. It is therefore necessary to traverse events from August 2016 to 20 January 2017 in order to consider

76 On 29 July 2016, and at about the time after Mr Forrest may be taken to have submitted his signed offers to the respective vendors contained in the Land Purchase Contract and Business Purchase Contract, Mr Turnley received a text message from Mr Forrest stating:

[Mr Bristow] just walked in shook my hand and leaned over and whispered to me "congratulations it's a...gold mine! I will tell you all the secrets you need to know!" Congrats guys start of another journey cheers.

77 Mr Turnley prepared a document entitled "Follow Ups for [Gourmet Paddock] and Other Projects" dated July 2016, in which is stated:[20]

By email dated 28 July 2016, Mr Forrest provided to Mr Turnley a document "for information" attaching a schedule of projected payments, stating in part:

79 The property at 10 Stumpy Gully Road referred to in the document is a separate property adjacent to the land, and in respect of which Mr Forrest had negotiated an option to buy, with a license to occupy in the meantime (the "option agreement").

80 On about 29 July 2016, Mr Turnley caused CITEK to pay $50,000 to the agent Paton. This was the first instalment of the deposit payable under Special Condition 12 of the Land Purchase Contract. I find below that this was a payment made by CITEK intended as a loan to the joint venture vehicle that would later be incorporated to represent the interests of Mr Turnley, Mr C Turnley and Mr Forrest. That vehicle subsequently took its form in SGH.

81 On 1 August 2016, Mr Turnley emailed Mr Forrest:

Trust you had a good weekend. I am still absorbing part owning a petrol station.

Are you able to forward to me a copy of the section 32 and contract for the purchase of the service station land at Balnarring so I can have a look over.

I will be visiting a couple of local accountants this week to see what structure we should put in place re-shareholding. You mentioned you had been referenced a couple of accountants in Mornington. Can you forward me the names of these guys...

82 On 1 August 2016, Mr Forrest emailed Mr Turnley:

Very busy weekend working on some great future prospects which will generate incoming revenue without investment required from us! I will fill you in properly on this stuff when it gets closer, at this stage it is only a time investment from me but the future return prospect is very, very bright.

Servo-very exciting and this will work out to be a great investment, yes I have [the section 32] and contracts and hard copy I am expecting the PDF copy tomorrow/Wednesday, if needed I will drop you off the hard copies earlier.

83 On 3 August 2016, Mr Turnley emailed Mr Forrest:

Keen to have a look at the contract and section 32. If you do not get the PDF copy today, maybe we can meet halfway and I will look and scan hard copies you have.

84 On 6 August 2016, Mr Stewart provided Mr Turnley with copies of the Business Purchase Contract and the Land Purchase Contract then signed by Mr Forrest, together with the proposed licence agreement in respect of 10 Stumpy Gully Road.

85 On 10 August 2016 Mr Forrest emailed Mr Turnley:

Just letting you know the deal is all done in [principle], just waiting for solicitors to exchange letters with the amendments... So it shouldn't be long now just formalities. I'll call you and send through once done.

86 I find from the evidence that the Business Purchase Contract and Land Purchase Contract became unconditional during the week beginning 8 August 2016.[21]

87 It follows that the settlement date for the Land Purchase Contract was in about early August 2017.

88 I also find that neither Mr Turnley nor Mr C Turnley were provided with the original or a copy of the Land Purchase Contract until one was supplied by Forrest after the commencement of this proceeding.[22]

89 Mr Turnley gave evidence, and I find, that by agreement with Mr Forrest and Mr C Turnley, in about August 2016, Mr Turnley took principal responsibility for the purchase of the business of Balnarring Motors and the land. Mr Turnley stated that he agreed with Mr C Turnley and Mr Forrest that they would focus on the fit out of the Gourmet Paddock premises, with the intent of ensuring that Gourmet Paddock would be ready to open its doors by the end of 2017.

90 On 10 August 2016, Mr Turnley emailed Mr Forrest:

Thanks for the note. I have organised the trust companies for Craig and myself. To move forward we now need to now organise the companies that will purchase and run the Balnarring Motors business. To go the next step we will need details of your trust or other ideas on your shareholding. We also need to settle on directors. My idea is Craig, [Mrs Turnley] and either yourself or [Ms Myers]. We need to get this pulled together so the right names are shown on the sale contracts.

91 On 25 August 2016, Mr Turnley sent a text message to Mr Forrest stating, among other things:

Did you & [Ms Myers] decide who will be director of Stumpy Gully & Paddock Securities? Kim.

92 On the same day, Mr Forrest replied to Mr Turnley by text message stating;

Yep will be [Ms Myers] for now she will send the details cheers.

Amendments to the Business Purchase Contract and Land Purchase Contract The Business Purchase Contract amendments

93 By Deeds of Amendment dated 19 August 2016, the Business Purchase Contract and Land Purchase Contract were amended.

94 In respect of the Business Purchase Contract, special condition (a), the provision that entitled Balnarring Motors to rescind the Business Purchase Contract if the Land Purchase Contract was not completed, was deleted. From the date of the amendment, therefore, it was no longer open to Balnarring Motors to rescind the Business Purchase Contract if the Land Purchase Contract was not also completed.

95 This aspect becomes relevant when consideration is given to Mr Forrest's rationale for purporting to later assigning his interest as purchaser of the land to the respondents.

96 The completion date was stated as the date "the [Mr Forrest] or his nominee [took] possession of the property at 2994 Frankston Flinders Road Balnarring".

97 Further, the value of the purchase price of $90,000 ascribed to stock of

$55,000 was reduced to $45,000 and an amount of $10,000 allocated to goodwill (when, as been seen, no amount had previously been allocated to goodwill in the Business Purchase Contract).

98 The amendments to the Land Purchase Contract retained a provision to the effect that if the Business Purchase Contract was rescinded or terminated, Mr Bristow as vendor of the land would be entitled to rescind the Land Purchase Contract.

99 The amendments to the Land Purchase Contract also included the following provisions:

• 5.1 The parties agree that the Principal Agreement is varied as follows:
• 5.1.1 Special Conditions 13, 14, 15 and 16 of the [Land Purchase Contract] are deleted
• 5.1.2 New special conditions 14 and 15 are inserted in the [Land Purchase Contract] as follows:

14.3 If the [Business Purchase Contract] is rescinded or terminated the Vendor may rescind this Agreement by giving notice to the Purchaser.

15 The purchaser will take occupation of the [land] on 31 December 2017 (the "occupation day") subject to:

• 15.1 the purchaser paying the vendor all deposit monies totalling $100,000; and
• 15.2 completing the purchase of the Balnarring Motors business; and

16 [The] purchaser may bring forward the occupation date by giving to the vendor 28 days written notice of his intention to do so and in such notice specifying the new occupation date.

100 I make the observation that the reference to the payment having been made of "the full deposit" in the preamble to the Deed is in error, because the Land Purchase Contract was specific about the deposit being $150,000 in staged payments. It will be later found in these Reasons that only $50,000 of the deposit had then been paid. Conformably with the plain facts, the reference in Special Condition 15.1 to "all deposit monies totalling $100,000" must be taken to be a reference to the $100,000 deposit monies then unpaid.

101 There were other conditions included in both agreements to the effect that they were each subject to Mr Forrest entering into an "Option [to purchase] Deed" and a "Licence [to occupy] Deed" in respect of the adjacent land at 10 Stumpy Gully Road.

102 On 19 August 2016, Mr Forrest texted Mr Turnley that he had:

...just signed the amendment agreement tonight for the servo so the deal is done. All conditions were met. I will get a copy of the amendments for your records cheers mate

103 On or about 5 September 2016, Mr Turnley instructed his accountants P R Jennings & Co to incorporate the applicant as a new entity for the purpose of operating the business.

104 SGH was incorporated on 5 September 2016. Its shareholders in equal proportions are Mr Turnley, Mr Craig Turnley and Mr Forrest's wife Ms Rachel Myers representing the interest of Mr Forrest. SGH is the corporate trustee of the Stumpy Gully Unit Trust.

105 At that time, Mr Turnley instructed PR Jennings and Co to record Ms Myers as a shareholder and initial director, to represent Mr Forrest's interest. He did this based on the express instructions that he received from Mr Forrest by text message on 25 August 2016.

106 Mr Forrest as the named purchaser of both the business and the land instructed Mr Gibbs in respect of the Business Purchase Contract and the Land Purchase Contract.

107 Mr Gibbs invoiced Mr Forrest in respect of his services in this respect by invoice dated 8 September 2016 in the sum of $5,070.30. I find that Mr

Turnley subsequently paid Mr Gibbs's the bill of $5,070 being aware that Mr Forrest was not in funds to do so.

108 On 26 September 2016, Mr Turnley sent a text to Mr Bristow Jnr ("Mr Bristow Jnr"), who managed the business, in which Mr Turnley introduced himself as Mr Forrest's business partner. He visited the business premises at the land that afternoon, and met with Mr Bristow Jnr to discuss what he needed to do to learn how the business operated.

109 I find from the evidence that Mr Turnley subsequently spent a significant amount of time with Mr Bristow Jnr at the business premises. Mr Bristow Jnr handled all the negotiations and other matters with regard to the sale of the business and the land. Mr Turnley regularly worked in the business, without payment. Mr Bristow Jnr introduced Mr Turnley to customers and suppliers.

110 Mr Turnley produced a business plan dated October 2016, which he emailed to Mr Forrest on 30 September 2016. Mr Turnley attached to the business plan financial projections for the period 1 November 2016 to 30 June 2017. In the expenses column, Mr Turnley created a line item for bank interest, but unlike all other line items, no figure was inserted here. This is most likely explained by the fact that settlement on the purchase of the property was not due until August 2017, and funding of the purchase of the land would not be required until that time.

111 In mid-October 2016, Mr Turnley agreed with Mr Bristow Jnr that the settlement date for the purchase of the business would be 1 December 2016.

112 I find from the evidence that Mr Turnley subsequently performed all the necessary tasks in preparation for settlement, making it clear in all his communications that the business was to be owned by himself, Mr C Turnley and Mr Forrest. I find from Mr Turnley's evidence that his various actions

took place with Mr Forrest's knowledge, because Mr Turnley so informed Mr Forrest in their discussions or by email correspondence.

113 Settlement of the purchase of the business occurred on 2 December 2016.

114 On 28 November 2016, Mr Turnley transferred $100,000 from his superannuation account to his personal bank account. On 29 November 2016 he transferred $120,000 from his personal bank account to CITEK. On the same day, Mr Turnley subsequently arranged for CITEK to transfer $120,000 to SGH as a loan.

115 On 2 December 2016, SGH was thereby able to make the following payments to the agent Paton:

(a) $66,000[23] being the balance of the purchase price for Balnarring Motors;

(b) $50,000 being the second instalment of the deposit due under special condition 12 of the Land Purchase Contract;[24] and

(c) $440 being the licence fee for occupation of 10 Stumpy Gully Road.

116 On 2 December 2016, Mr Turnley took delivery of the books and records of the business, obtained the keys to the premises, the passwords to the software systems that operated in the business and all of the plant and equipment that formed part of the sale.

117 Mr Turnley gave evidence and I find that that he took possession of the business premises in his capacity as a director of SGH, even though the settlement of the land contract was not to occur until a later date. I note here that Mr Forrest's evidence was to the effect that SGH took possession at this

time as a licensee only, being subject to Mr Turnley's future compliance with the alleged condition precedent.

118 At the time of the Business Sale Agreement, the business's diesel and petrol supplier was Caltex. In his business plan prepared at the end of September 2016 and dated October 2016, Mr Turnley had identified that other suppliers to the area existed, in which he mentioned a business called Petrogas, which supplied Mobil products.

119 Mr Turnley received a letter from Caltex dated 4 November 2016 concerning the existing supply agreement it had with the business.

120 By his email dated 11 November 2016 to a Mr Sando of Petrogas, Mr Turnley refers to their having met that day, and to Mr Turnley's wish for SGH to make a clean start with the business, projecting a new and improved image to the local marketplace.

121 On 27 November 2016, Mr Turnley transferred $35,000 from his personal bank account to CITEK, after which he made CITEK pay $35,000 to Caltex to ensure continuity of supply whilst he considered the alternative option with Petrogas.

122 On 20 December 2016, it will be recalled, Mr Forrest became a director of SGH, taking the place of Ms Myers.

123 Mr Turnley gave evidence by his first witness statement dated 12 April 2019 that after 20 December 2016 (by which date, as has been seen, Mr Turnley had arranged for payment of a second tranche of $50,000 towards the

$150,000 deposit for payment of the land), he raised with Mr Forrest the need to arrange finance for payment of the $810,000 balance of the purchase price payable for the land. I find from Mr Turnley's evidence that Mr Forrest informed him that a Mr Morgan of RGM Accountants in Moe would be able to provide them all with advice as to the best way to structure the holding of the shares in SGH, and that he would also be able to provide funding advice. Mr Turnley met with Mr Morgan on 21 December 2016. I find that at that meeting, Mr Turnley provided details to Mr Morgan about the purchase of the business, and the then contemplated purchase of the land by SGH. I find from his evidence that Mr Morgan told Mr Turnley that he was unable to assist with facilitating any further borrowings by SGH in respect of the balance of the purchase price for the land.

124 I find from his evidence that in late 2016 Mr Turnley remained concerned about putting in place the borrowing for the purchase of the land. As a consequence, Mr Turnley, Mr C Turnley and Mr Forrest met with a Mr Garrivan of the Commonwealth Bank on 29 December 2016. Mr Garrivan was Mr Turnley's contact manager at the Commonwealth Bank, having previously assisted Mr Turnley with a bank overdraft for CITEK. On 3 January 2017, Mr Garrivan provided to Mr Turnley the bank's requirements for information that it would need if it were to provide finance to either or both of Paddock Securities or SGH for the purpose of funding the purchase of the land. Mr Turnley's evidence was that he provided to Mr Forrest details of the information required by Mr Garrivan. He gave evidence and I find that he subsequently attended a further meeting with Mr Garrivan on 20 January2017, in the expectation that Mr Forrest would have provided the details to Mr Garrivan by then, but that Mr Forrest had not done so.

125 On 10 February 2017, Mr Forrest emailed Mr Turnley:

[I] have got discussions lined up over the next few days about possible investment from a few people.

Can you please send me a simple line item summary of the costs involved so far that are being allocated to [Gourmet Paddock] and then the [service station]. This is for my eyes only, we can formulate something later on for an investment doc so doesn't need to be in any great format.

126 Mr Turnley responded by email dated 10 February 2017, setting out the total monies then advanced by CITEK to SGH by way of loan ($242,000) in respect of the business, and $372,309 then advanced by CITEK by way of loan to Paddock Securities in respect of the Gourmet Paddock business.

127 Mr Turnley also gave evidence that in about May 2017 his concerns about the obtaining of finance by SGH for settlement of the purchase of the land were allayed by Mr Forrest's informing Mr Turnley that Mr Forrest had found an investor (whose identity was not disclosed by Mr Forrest, but who is now known to have been Ms Fraser) who, according to Mr Turnley's evidence, was prepared to pay the balance of the purchase price to Mr Bristow.

128 Mr Turnley gave evidence that on 17 May 2017 he arranged for SGH to pay the sum of $50,000 to Mr Bristow, being the third instalment of the $150,000 deposit for the purchase of the land under the Land Purchase Contract.

129 Relevant also to whether there was a term of the Acquisition Agreement that Mr Turnley would procure 100% of the funds required for SGH to purchase the business and the land is a document entitled Deed-Balnarring Motors bearing the date 28 July 2017, prepared by Mr Gibbs.[25]25 I find that it was prepared on instructions from Mr Forrest (the "Balnarring Motors Deed").

130 SGH does not concede that the Balnarring Motors Deed was signed on the date that it bears. On one view, however, the Balnarring Motors Deed was purportedly entered into on 28 July 2017, four days before the settlement of the Land Purchase Contract.

THIS DEED is made the 28th July Two Thousand and Seventeen [date typed as such]

1. Stewart is the sole director of PPG and is the holder of its two issued shares. The issued shares are held on trust for the Peninsula Property Group Aust Unit Trust.
2. Belinda is the sole director of Doolkoora and is the holder of its one issued share. The issued share is held on trust for the Doolkoora Balnarring Trust.

1. Rachel is the trustee of the Rachel Myers Trust (also known as the Rachel Myers Family Trust).

1. Balnarring Service Centre Pty Ltd...(BSC) was incorporated on 27 July 2017. Its directors are Stewart and Belinda. It has 2 issued shares, 1 being held by Rachel and the other by Doolkoora.
2. Peninsula Property Group Unit Trust...was created on or about 27 July 2017, with 120 Units being issued to Rachel as Trustee for Rachel Myers Trust.
3. Peninsula Property Group Aust Pty Ltd...was incorporated on the 27 July 2017. Stewart is its director and Secretary and holds its two issued shares.
4. On the 29 July 2016, Stewart in his own right entered into a Contract for the purchase of the property at 2994 Frankston-Flinders Road, Balnarring (the Premises) from David William Bristow (the [Land Purchase Contract]). This Contract contained (inter alia) the following provisions (emphasis added).
   1. The price of $960,000 payable by way of a deposit of $150,000 with the residue of $810,000 being payable twelve months from the date of the Contract.
   2. It was conditional upon [Mr Forrest] entering into a Contract with Balnarring Motors Pty Ltd...for the purchase of the Balnarring Motors business conducted on the Premises.
   3. The deposit of $150,000 was payable as to $50,000 on the signing, $50,000 six months from the date of sale and a further $50,000 nine months from the date of sale.
   4. Upon payment of $100,000 of the deposit and the completion of the purchase of the Balnarring Motors business, [Mr Forrest] entered into occupation of the premises subject to he being responsible for payment of all periodic outgoings.
5. On the 29 July 2016, Stewart in his own right entered into a Contract for the purchase of the Balnarring Motors business from Balnarring Motors Pty Ltd...This Contract contained (inter alia) the following provisions (emphasis added):
   1. The price of $90,000 plus stock at value payable by way of a deposit of

$9,000 with the residue of $81,000 and stock payable six months from the date of signing the Contract.

1. The Contract was conditional upon Stewart entering into [the Land Purchase Contract]

1. On the [29] July 2016 Stewart entered into a Real Property Call and Put Option Agreement with David William Bristow in respect of the property at 10 Stumpy Gully Road, Balnarring. This Agreement contained inter alia, the following provisions:
   1. Stewart was to pay a premium (Option fee) of $5,000;
   2. The Option was to be exercised within 23 months and 14 days from the date of the Agreement;
   3. The purchase price for the Stumpy Gully Road property was $600,000.

1. On about the [2] December 2016, Stewart paid, or caused to be paid to Paton Estate Agents Pty Ltd the sum of $66,000 representing the balance of the price for the purchase of the business less an adjustment for fuel.
2. On or about 29 July 2016 when the Premises Contract was signed, Stewart paid or caused to be paid the initial deposit of $50,000.

1. On about the [20] December 2016 Stewart paid or caused to be paid in respect of the Premises Contract the second tranche of the deposit of $50,000 and obtained possession of the premises.

1. On about [17] May 2017 Stewart paid or caused to be paid in respect of the Premises Contract the third tranche of the deposit of $50,000 with the total deposit being paid, namely $150,000.
2. Following the completion of the purchase of the Balnarring Motors business, the business was operated by Kim Turnley a person with whom Stewart had an agreement to provide monies for both the purchase of the business and [the land] so that Stewart would not have to either contribute the net balance of the purchase price for [the land] himself or borrow same (emphasis added).
3. In early July 2017, Kim advised Stewart that he would not be able to contribute any further monies whatsoever towards the payment of the balance of the price due in respect of the [Land Purchase Contract]. If the balance due pursuant to the terms of the [Land Purchase Contract] were not paid, Stewart would have been in default, would have forfeited the monies paid pursuant to [the Land Purchase Contract and the Business Purchase Contract] (a combined total of $215,000),[26] would have been removed from occupation of the premises and lost the goodwill that had been built up in the business, and would have been liable to the Vendor for any loss that the Vendor would have suffered, which would have been substantial.
4. Stewart approached Belinda to provide monies to assist him in completing the premises (sic) Contract which she agreed to do on the terms and conditions contained in this Deed.

1. This Deed is binding upon the heirs, successors and assigns of all the parties to it.

2. The parties acknowledge and agree that the Background paragraphs are true and correct and form part of this Deed.

3. The parties agree to enter into this Deed in consideration of Doolkoora paying the sum of $890,000 to enable completion of the [Land Purchase Contract].

4. Stewart agrees that he will do all such acts and things as may be necessary and required to:

• 4.1 Nominate Doolkoora and PPG as purchasers to complete the [Land Purchase Contract] and the [Business Purchase Contract];
• 4.2 Sell to [Balnarring Service Centre Pty Ltd] the Balnarring Motors business for

• 4.3 When requested by Belinda to resign as Director and Secretary of both Balnarring Service Centre Pty Ltd and Peninsula Property Group Aust Pty Ltd
• 4.4 Transfer to Doolkoora the shares held by him in PPG;
• 4.5 When requested by Belinda, to exercise the option contained in the Real Property Option Agreement and nominate Doolkoora or such other entity as may be requested by Belinda, to complete the purchase of the Stumpy Gully Road property.

5. Rachel agrees that she will do all such acts and things as may be necessary and required to:

• 5.1 Transfer to Doolkoora or such other entity as Belinda may request and instruct all issued shares she holds in SSC;
• 5.2 Transfer to Doolkoora or such other entity as Belinda may request and instruct all issued units she holds in Peninsula Property Group Aust Unit Trust

6. Belinda and Doolkoora agrees (sic) that she and it will do all such acts and things as may be necessary and required to:

• 6.1 Ensure that Doolkoora pays the sum of $890,000 to David Gibbs & Associates, the lawyers acting on behalf of Stewart in respect of the [Land Purchase Contract]; and
• 6.2 Ensure that Doolkoora will pay any and all stamp duty payable and assessed in respect of the transfer of the premises and any stamp duty that may be assessed and payable in respect of the transfer of the shares in PPG and units in the Unit Trust, together with and all other disbursements including but not limited to Land Titles Office and ASIC fees.

7. Doolkoora covenants and agrees that it will pay on behalf of Stewart all monies that are required to complete the [Land Purchase Contract] and have it and PPG registered on Title as the registered proprietors of [the land] as tenants in common in equal shares.

132 Notwithstanding the challenges presented in construing its provisions, I make the following observations about the Balnarring Motors Deed:

(a) It refers to Mr Forrest having incorporated a company Balnarring Service Centre Pty Ltd ("BSC") on the day before the purported day of entry into the Balnarring Motors Deed,[27] a company owned by Ms Myers and Doolkoora (Ms Fraser's company), to which entity he undertook to do all things to sell the business for $1.00;[28]

(b) it also refers to Mr Forrest having incorporated Peninsula (the second respondent) on the day before the purported day of entry into the Balnarring Motors Deed,[29] wholly owned by Mr Stewart, to which company and Doolkoora he undertook to do all things to effect their nomination as purchasers under the Land Purchase Contract;[30]

(c) it refers to the creation of the Peninsula Property Group Aust Unit Trust on the day before the purported day of entry into the Balnarring Motors Deed, with 120 units issued to Ms Myers as trustee;[31]

(d) it contemplates both Doolkoora and Mr Forrest's company Peninsula becoming registered proprietors of the land;[32]

(e) it provided a mechanism for Ms Myers transferring her interest in BSC and the Peninsula Property Group Aust Unit Trust unit trust to Doolkoora;[33] and

(f) it provided a mechanism for Mr Forrest transferring his interest in Peninsula to Doolkoora,[34] and resigning as director and secretary of both BSC and Peninsula.[35]

133 Although it is nowhere expressly stated in the Balnarring Motors Deed, I find on the evidence that Mr Forrest was hoping to obtain finance as would allow him to contribute to the financial obligation undertaken by Doolkoora under the Balnarring Motors Deed to pay the $890,000 balance of the purchase price to the vendor of the land, thus to enter into a business venture of some sort with Ms Fraser, and therefore benefit personally from the arrangements proposed in the Balnarring Motors Deed.[36] This explains the existence of Clauses 4.3, 4.4 and 5 to which I have referred.

134 I find however from the evidence of Mr Forrest and Ms Fraser, that the personal benefit contemplated by Mr Forrest never arose, for want of Mr Forrest obtaining funding.

135 Further, it is open to conclude from the contents of the Balnarring Motors Deed that Mr Forrest's proposal to Ms Fraser involved the both of them or their corporate interests improperly taking advantage of payments already made by SGH in respect of the business and the land to which I have referred, without recompense to SGH. In fairness to them both, however, I observe that Mr Forrest's evidence was as follows:[37]

[After taking occupation of the premises in December 2016] SGH sold the stock and used and depreciated and sold the equipment for tax purposes to turn over approx. $10,000,000 from which they paid themselves back their initial outlay and then some.

SGH paid the 3 x $50,000 payments and [made payment] for the stock and equipment to access my licence agreement [to occupy the premises] and therefore the $10,000,000 in revenue and profits they made.

136 In other words, Mr Forrest contended that by reason of its access from December 2016 to the cash flow of the business, SGH and/or Mr Turnley had been more than recompensed for their payments for the business and towards the land already made.

137 There is, however. no evidence of any express agreement between SGH and Mr Forrest that SGH's financial investment in both the business and the land was to have been repaid from the assumed net revenue of the business after SGH assumed occupation of the land on 2 December 2016, in substitution for any interest that SGH may have otherwise acquired in the land. I find any such alleged agreement (putting Mr Forrest's evidence at its highest) to be not proven.

138 On 1 August 2017, Doolkoora and Peninsula paid the balance of the purchase price for the land.

The resulting trust claim-the first sub-issue-SGH's evidence

139 Mr Turnley's evidence contained in his affidavit sworn 3 September 2018 was as follows:

7. At some point shortly after [an initial conversation in July 2016 when Mr Forrest informed me that he had identified a service station business...and freehold land for sale, which he described as "a good opportunity". Mr Forrest proposed that he, [Mr C Turnley] and myself acquire [them] as a joint venture...Mr Forrest, [Mr C Turnley] and [I] discussed a course of action whereby I would fund the cost of purchasing the business, stock and capital items ($90,000) as well as the deposits required under the relevant contract for the sale of the [land] (three staggered payments of $50,000 each). We also discussed the fact that because final settlement of the [land] was quite some time away (12 months after signing the contract of sale), that would give us ample time to arrange suitable funding for the balance of the purchase price. At [the time of the meeting in July 2016] I also believed that I would be likely to be able to finance the balance of the purchase price if alternative funding sources [had] not been identified (emphasis added). At the end of the discussion I understood that each of myself, Craig and Mr Forrest would be equal partners in this new project involving Balnarring Motors, similar to the way we were in respect of Gourmet Paddock. I also understood that I would ultimately hold a direct or indirect interest in any entity that became the registered proprietor of the [land], based on my commitment to contribute to the purchase price of the [land]. I understood that, depending on how the balance of the purchase price for the [land] was ultimately funded, if my interest in the [land] whilst not going to be one third (i.e. divided equally between myself, Craig and Mr Forrest), then my interest would correspond to the proportion of the total purchase price to which I had contributed. I believe that my understanding of these facts is and was consistent with what the three of us discussed and agreed at that time"

140 Mr Turnley's further evidence concerning the terms of the Acquisition Agreement is contained in his witness statement dated 12 April 2019, as follows:

8. In or about July 2016, Mr Forrest informed me that he had identified an opportunity to purchase a service station business known as Balnarring Motors ("Business") and the freehold on which the Business was operated ("Land") He told me that that Mr Forrest had agreed on the terms of the purchase of both the Business and the Land with the vendor of each, Balnarring Motors Pty Ltd ("Balnarring Motors") and David William Bristow ("Bristow Snr") respectively.

9. As with Gourmet Paddock, Forrest proposed that he, Craig and myself acquire both the Business and the Land by way of a partnership in equal shares, whether by way of holdings in a company or otherwise. He told Craig and me that the terms were so favourable that I would only have to fund an initial deposit of $50,000 and two further instalments of

$50,000 each for the Land. [Mr Forrest] said that as final settlement for the Land would not be due for 12 months he would have ample time to arrange suitable funding for the balance of the purchase price for the Land from bank or other commercial lenders (emphasis added).

10. Craig and I agreed to the proposal put by [Mr Forrest] provided funding could be obtained from bank or other lenders for the purchase of the Land. We told [Mr Forrest] that we could provide the funds to purchase the Business [it will be recalled that this amount was $90,000] and contribute up to $150,000 or thereabouts to the purchase of the Land, but that we [would] not be able to fund the entire purchase price of the Land. We told him that the money had been invested in the Gourmet Paddock business, drawing on the CITEK overdraft and my superannuation, meant that funding the purchase of the business and contributing to $150,000 to the purchase of the Land was as much as we could afford.

11. On 20 July 2016 I met with [Mr Forrest] to discuss a number of matters, principally Gourmet Paddock but we also discussed matters relating tom the purchase of the Business and the Land. During that meeting, I again expressed concerns to Forrest about how we would finance the two ventures as partners. However, [Mr Forrest] convinced me that the purchase of the Business and the Land was a great opportunity and that it would not require a lot of money in the short term.

12. It was agreed between [Mr Forrest, Mr C Turnley] and I that [Mr Forrest] would be responsible for liaising with the lawyer that he had engaged in relation to the purchase of each of the Business and the Land, David Gibbs of David Gibbs & Associates in Hastings...

141 I find from the evidence that these discussions, leading to the subsequent oral Acquisition Agreement, are likely to have taken place during the week ending 15 July 2016, prior to a follow up meeting which, the evidence shows, took place on about 20 July 2016 between Mr Turnley and Mr Forrest. At that time, as appears from the dates of the subsequent offers in connection with the purchase contracts described above, Mr Forrest had only entered into an agreement in principle with the vendors of the business and the land.

142 Mr C Turnley's evidence about the terms of the Acquisition Agreement contained in his witness statement also dated 12 April 2019, is as follows:

[after referring to his association with Mr Forrest as operations manager of Mr Forrest's company Civil Direct, and the Gourmet Paddock business in which he, Mr Turnley and Mr Forrest were "equal partners"]

5. In or about June 2016 [Mr Forrest] called me and asked me to meet him at the service station in Balnarring, known as

Balnarring Motors. We met out the front where he told me: "we have just bought the servo", being both the business known as Balnarring Motors... and the freehold which is 2994 Frankston- Flinders Road, Balnarring.

6. I was shocked but excited about the news. I asked how we were going to pay for it. I told him that my father and I were not going to be able to fund the whole of the purchase price for the [land], which was $960,000. I said that was particularly the case given the amount of money which my father had already invested in the Gourmet Paddock business. Forrest told me we had a long settlement on the Business and a 12-month settlement on the [land] and that we would work it out. I was then introduced to David Bristow Jnr who managed the [service station] business. Forrest and I then had dinner at Ciao Bella in Balnarring to discuss how to grow the business.

7. During the dinner it was discussed that, as with the Gourmet Paddock business, Forrest, my father and I would be an equal partnership in both the Business and ownership of the [land], provided we were [all] able to raise the borrowing necessary to complete the purchase of the [land] from commercial lenders. Forrest said that we would be able to do that on the basis of the cash flow from the Business. In other words, he said that he was confident that there would be sufficient cash flow in the Business to be able to borrow from a commercial lender. However, he said that if we could not do so, he would raise funding from a private investor or investors who would then have a share in the ownership of the [land].

8. It was agreed between [Mr Forrest], my father and I that [Mr Forrest] would be responsible for liaising with the lawyer he had engaged in relation to the purchase of each of the business and the [land], David Gibbs & Associates and Hastings. In that regard I was always assured by Forrest everything was going ahead well. I relayed that back to my father.

9. In discussions with [Mr Forrest] and my father during July 2016 it was agreed that my father would obtain the funds to purchase the business and to contribute up to $150,000 to the purchase of the [land]. That was agreed on the basis, again, that each of [Mr Forrest], my father and myself would, through a company to be incorporated, have equal ownership of each of the business and the [land].

143 In addition, Ms Straub gave evidence by her statement dated 12 April 2019, as follows:

2. On 13 February 2017 [Mr C Turnley] and I attended the funeral of his uncle. Apart from being very distressed by his uncle's death, at the time [Mr C Turnley] was very unwell. That was partly because for many months he had been working extremely long hours to fit out premises for a new restaurant in Balnarring known as "Gourmet Paddock". It was also because he had encouraged his father [Mr Turnley] to invest in the Gourmet Paddock business at the suggestion of [Mr Forrest] and because, at that time, enormous pressure was being placed on both [Mr C Turnley] and Mr Turnley to invest further in that business. It was also because another business in which Mr Turnley had invested at the suggestion of [Mr Forrest], Balnarring Motors in Balnarring required further funding...That further funding was required particularly for the purchase of the freehold on which the business was operated.

3. [Mr C Turnley] told me that during the day at the funeral [Mr Forrest] had been telephoning him and putting pressure on him to obtain further funding from Mr Turnley.

4. After returning home from the funeral at about 8 pm I telephoned [Mr Forrest]. [Mr C Turnley] went to bed because he was so unwell. I spoke to [Mr Forrest] for over an hour and told him that [Mr C Turnley] was completely broken, but only with the sudden loss of his uncle, but also the physical exhaustion of all the labour work he was doing at the time and with the huge pressure that [Mr Forrest] had put on him and his family to come up with some more money for the Gourmet Paddock business

5. During the telephone conversation I asked [Mr Forrest] why he had not delivered another investor or as he had agreed to as part of the business arrangement. He said to me words to the effect of: "I know I haven't kept my end of the bargain. I have been dealing with alot. I have tried all other avenues for investment and have come up short and I know [Mr Turnley] and [Mr C Turnley] have been working so hard and invested so much. I will work something out".

6. On 19 July 2017 I was at a meeting between [Mr C Turnley] and [Mr Forrest] at Mr Turnley's home at... Mornington. During the meeting [Mr Forrest] said to [Mr Turnley] words to the effect of: "Kim, once this gets over the line, I promise I will pay back on your investment'. In the context of the conversation, his reference to "getting over the line" was a reference to the opening of the Gourmet Paddock business.

The resulting trust claim-the first sub-issue-the respondents' evidence

144 The respondents rely on the direct evidence of Mr Forrest concerning relevant matters.

145 Part of Mr Forrest's evidence in relation to the first sub-issue is contained in Mr Forrest's first statement. Although it was served a fortnight or so after the witness statements of Mr Turnley and Mr C Turnley to which I have referred, it makes no express reference to these statements. Mr Forrest's evidence relevant to the first issue is contained in his first statement filed 3 May 2019 (as amended on 12 February 2020), as follows:

3. I was introduced to [Mr Turnley] by [Mr C Turnley].

4. [Mr Turnley] was introduced to me as a "Financial Genius" [He] was a qualified accountant, marketing genius and had built several international companies from the ground up and owned several businesses. Kim supposedly served on the boards of these companies both nationally and internationally. He owned significant shareholdings in them also.

Kim and Craig told me that Kim regularly invested in start-up businesses and was responsible for their success.

They would constantly refer to Kim as the "Financial guru" "The Wizard" and themselves as "the Fuel Baron's" (sic).

I would now describe them as predators masquerading as victims.

5. I entered into an agreement with Kim and Craig, where Kim would provide...100% of the funds necessary to complete the purchase of the back-to-back contracts for the service station freehold and business and there would be equal one third ownership between Kim, Craig and [my interests]. Craig was to run the day-to-day.

6 Kim and Craig failed to meet their obligations and honour their agreement.

9. I allowed [SGH] to occupy the premises [on 1 December 2016] under my licence agreement with [the vendor] David Bristow, on the condition that Kim Turnley provide 100% of the funds necessary to complete the purchases detailed in the [back-to-back] contracts.

146 The respondents also rely on a witness statement of Ms Fraser dated 18 April 2019, in which she states:

36. [Mr Forrest subsequently explained to me that at] the time [of the settlement of the purchase of the business in December 2016] his business partners [Mr Turnley and Mr C Turnley] operated the business SGH at the premises under a verbal agreement that [Mr Forrest] could provide due to the licence [to occupy granted] to him in the contracts [Mr Forrest had entered into with the vendors]. [Occupation by SGH ] was provided as [Mr C Turnley] and [Mr Turnley] had initially agreed to supply deposits and secure funding for settlement. Mr Turnley and his family were being paid by the business to run the business in the lead up to settlement [of the purchase of the land].

44. ...[Mr Forrest has explained to me that the [purchasing entity of the land and business] would only change if [Mr Turnley] secured funding for [the land] settlement.

45. In all my meetings and discussions with David Gibbs, he continually assured me that [Mr Forrest] had the right to nominate all contracts as his name was on all the written agreements[38]...

The resulting trust claim-the first sub-issue-SGH's reply evidence

147 The evidence of Mr Turnley in reply to these passages in Mr Forrest's first statement is contained in his reply statement dated 10 May 2019, as follows:

21. The introduction was at a birthday party for one of my grandchildren in Mornington in 2011. Craig did not introduce me as "a financial genius", "marketing genius" nor as having "built several international companies from the ground up" nor as having "owned several businesses". He did not introduce me as having served on the boards of companies which I had "built" either nationally or internationally, nor did he say that I had owned significant shareholdings in any such companies. Craig did not tell [Mr Forrest] in my presence that I "regularly invested in start-up businesses" nor that I was responsible for the success of any start-up business. I did not introduce myself to [Mr Forrest] in any of those terms either. That is because none of those descriptions of me are true and I have never introduced myself to anyone on such terms nor describe myself in any such terms.

22. I am not a qualified accountant. After leaving school I did some accounting work for several years, but never qualified. That experience was subsequently useful to me in sales, marketing and management. Prior to working in the [Balnarring Motors business], I worked for two international companies: Rhône- Poulenc SA and Alltech Inc. the former [company] operated a business manufacturing vitamin D products for the animal feed industry. In that business, my role was and management, sales and marketing. I was not on the board of that company, nor did I own any shares in it. The latter [company] operated a business manufacturing yeast supplements for the animal feed industry. I started a subsidiary business for Alltech Inc in Australia, and was a member of the board of direction (sic) for that business in Asia. Alltech Inc was a privately owned company. I was not a shareholder in it. [Mr Forrest] is and always has been well aware of the extent of my experience in my working life. This is because I told him about it.

24. I did not enter into such an agreement with Forrest in my capacity as a director of SGH, or otherwise.[39]

148 By his reply witness statement, Mr Turnley also rejected the truth of the alleged advices by Mr Forrest to Ms Fraser that Mr Turnley and Mr Craig Turnley had initially agreed with Mr Forrest to supply deposits and secure funding for the settlement" (see paragraph 36 of her witness statement, above) stating:

12. No verbal agreement was made at the time of settlement of the purchase of the business between [Mr Forrest, Mr C Turnley and myself... that SGH would operate the business. That agreement had been made some months prior, when SGH was incorporated. At the time of settlement of the purchase of the business by SGH, and subsequently, Mr Forrest assured [Mr Craig Turnley] and me that he would not have any problems securing the additional funding needed to settle the purchase of the [land]...

149 Further, Mr Turnley also rejected the truth of the alleged subsequent explanation[40]40 by Mr Forrest to Ms Fraser that Mr Turnley and Mr Craig Turnley had agreed that the entity [purchasing the land] would only change if [Mr Turnley] secured funding for settlement (see paragraph 44 of her witness statement, dated 18 April 2019, above), by stating:

13. I did not agree with [Mr Forrest] that the "entity [purchasing the land] would only change if [I] secured funding for settlement. What I agreed with [Mr Forrest] was that SHG would either be recorded on title as having an interest in the Land to the extent of the money contributed by it to the purchase of the Land, or alternatively that it would have a shareholding in any company that purchased the Land that reflected the extent of the money contributed by it to the purchase of the Land.

150 The evidence of Mr C Turnley, in reply to the passages in Mr Forrest's first statement, is contained in his reply witness statement also dated 10 May 2019, as follows:

14. I did not ever say to [Mr Forrest] that my father is or was a qualified accountant, because he is not. I did not ever say to [Mr Forrest] that my father is or was a "financial genius" or a "financial guru". I do not ever say to [Mr Forrest] that my father had "built several international companies from the ground up and owned several businesses". I said that he had been employed

by international companies and had started a business in Australia for one of them. I do not ever say to [Mr Forrest] that my father had significant shareholdings in the international companies which had employed him. I did not ever say to [Mr Forrest] that my father regularly invested in start-up businesses. I did say to [Mr Forrest] that in my view my father is and was a marketing genius.

15 [Mr Forrest] called my father the "fuel baron" as a consequence of my father's dedication to the [Balnarring Motors] business.

16. Neither my father nor I ever entered into an agreement with [Mr Forrest] that we would procure all of the funds necessary to purchase the [land]. We agreed [to] procure $150,000 to contribute to the purchase of the [land].

151 The evidence of Mrs Turnley, in reply to the passages in Mr Forrest's first statement, is contained in her reply witness statement dated 10 May 2019, as follows:

I have never heard either my husband or my son Craig, or anyone, for that matter, refer to my husband as a "financial genius", a "financial

guru" or "The Wizard". Forrest used the term "fuel barons" to describe all of us, including himself, after my husband, my son Craig and [Mr Forrest] had jointly agreed to purchase the Business.

The resulting trust claim-the first sub-issue-the respondents' further evidence in reply

152 By Mr Forrest's second witness statement filed 17 May 2019 (and as amended on 12 February 2020), Mr Forrest states:[41]

SGH paid the 3 x $50,000 payments and for the stock and equipment to access my licence agreement and therefor the approx. $10,000,00.00 (sic) in revenue and profits they made. [The payments of $150,000 made by SGH were to be attributed to the purchase of the land] if and only if Kim Turnley provided all of the funds required for settlement.

This was all done under my licence agreement with the Bristows, I paid

...the initial $5,000 to action the licence agreement and contracts (receipt attached 2994 Frankston Flinders Road).

153 The balance of his evidence in relation to the first issue is contained in Mr Forrest's third witness statement (and as subsequently amended on 12 February 2020), as follows:

In April 2016, I began negotiating to buy the Balnarring service station land and business.

I told Kim and Craig Turnley that I was negotiating a contract to buy the service station and there was a brief conversation about them coming in on it if I could get it done.

On [27 May 2016], my wife paid the initial [$5,000] deposit and on [30 May 2016] Paton Real Estate Agent issued her a receipt (bank transfer and receipt attached).

In July 2016, I signed the contracts for the purchase of [the land] and [Balnarring motors business] and the option for 10 Stumpy Gully Road. The second deposit of $50,000 was paid as per the verbal agreement below.

In July 2016, I also confirmed the verbal agreement with Kim and Craig Turnley the (sic) verbal agreement was as follows:

1 We would form a company unit trust with three equal shareholders/ unit holders being Kim Turnley, Craig Turnley and [my interest].

2 Kim Turnley would supply 100% of the funds necessary for the purchase of the land and business contracts being 2994 Frankston Flinders Road Balnarring, 10 Stumpy Gully Road and Balnarring Motors. By Kim Turnley supplying the funds he and Craig Turnley would own 2/3 and [my interests] 1/3

3 It was agreed that I would remain the owner of both business and land contracts until Kim Turnley supplied all of the 100% of the funds necessary to settle.

4 [Mr Turnley] registered the company and unit trust SGH and the share and units were allocated accordingly. 1/3 each.

5 The next rounds of deposits and payments were made.

6 By these monies being paid [in December 2016] I allowed SGH to pay for the plant and equipment and stock from Balnarring Motors and SGH began to trade from [the land]. I allowed this verbal agreement to take place as I had a written agreement in the contracts with Mr Bristow that allowed me to occupy the site. I did not sell SGH the Balnarring Motors business, same as I did not sell Ms Fraser the stock, plant and equipment.

The resulting trust claim-the first sub-issue-finding as to the substance of Mr Forrest's evidence

154 I have due regard that to the fact that the three statements of Mr Forrest to which I have referred, were personally prepared by Mr Forrest, apparently without the benefit of legal advice. I also accept Mr Forrest's evidence that he has reading and writing difficulties as a consequence of his announced dyslexia.

155 Having made these preliminary comments, I find that the substance of Mr Forrest's evidence in his witness statements, fairly construed, is:

(a) by an oral agreement in July 2016[42]42 between Mr Forrest, Mr Turnley and Mr Craig Turnley, Mr Turnley agreed to source the funding for the purchase of the business and the land;

(b) that until Mr Turnley complied with this funding obligation, the Business Purchase Contract and the Land Purchase Contract would remain in the name of Mr Forrest (and, by inference, upon discharging the funding obligation, SGH would be substituted as the purchaser with Turnley interests holding two-thirds and Mr Forrest's interest owning one-third);

(c) that upon Mr Turnley funding the purchase of the business under the business purchase contract, Mr Forrest orally granted a sub-licence to SGH to occupy the premises [on 2 December 2016],[43] again on the basis of the alleged oral agreement in July 2016[44] that Mr Turnley would also secure the funding for the purchase of the land, and failing which the sub-licence would be revoked;

(d) that SGH made the payments for the business "to access [Mr Forrest's] licence agreement", by way of SGH becoming a sub-licensee of the premises in order to benefit from the revenue from the business;

(e) that SGH made three payments of $50,000 each as deposit for the land, but given that Mr Turnley failed to comply with the balance of the funding obligation for the land as would have enabled SGH to settle the purchase of the land, Mr Forrest was at liberty to deal with:

(i) his interest as purchaser of the land in the Land Purchase Contract; and

(ii) his interest in the business under the Business Purchase Contract

in whichever way he chose which, in the event, he effected by entering into the Balnarring Motors Deed; and

(iii) the net receipts accruing to SGH from the service station business since SGH went into occupation as sub-licensee have resulted in SGH having being reimbursed its total $150,000 outlay for the deposits for the purchase of the land.[45]

The resulting trust claim-the first sub-issue-submissions of the parties and findings

156 Mr Kewley for the respondents submitted that the evidence of Mr Forrest that he "entered into an agreement with [Mr Turnley] and [Mr C Turnley], where [Mr Turnley] would provide...100% of the funds necessary to complete the purchase of the back-to-back contracts for the service station freehold and business"[46] is to be preferred because the evidence of Mr Turnley in respect of the issue cannot be regarded as credible.[47]

157 In this respect, the respondents rely on the evidence contained in the affidavit of Mr Turnley sworn 3 September 2018 reproduced above, where he deposed at [7]:

At [the time of the meeting in July 2016 when the Acquisition Agreement was entered into] I also believed that I would be likely to be able to finance the balance of the purchase price if alternative funding sources were not been (sic) identified...(emphasis added).

158 This evidence, the respondents submit, is in contrast to the evidence in Mr Turnley's subsequent witness statement dated 12 April 2019, where he states:

...He told Craig and me that the terms were so favourable that I would only have to fund an initial deposit of $50,000 and two further instalments of $50,000 each for the Land. [Mr Forrest] said that as final settlement for the Land would not be due for 12 months he would have ample time to arrange suitable funding for the balance of the purchase price for the land from bank or other commercial lenders (emphasis added).

159 Mr Kewley emphasises that the reference to "I" in the affidavit was amended by the reference to "he" in the witness statement, and was further modified to "we" during the cross-examination of Mr Turnley. For these reasons, Mr Kewley submitted, the evidence of Mr Turnley concerning a matter that is at the heart of the dispute, should be approached with caution, and that the Tribunal should find as a fact that the parties agreed that Mr Turnley would provide the balance of the funding consistent with his admission contained in Mr Turnley's affidavit, and consistently with the evidence of Mr Forrest.

160 Mr Kewley second submission also goes to credibility. That is, the evidence of Mr Turnley in respect of the agreement for lease claim, demonstrates in his submission another contradiction in Mr Turnley's evidence, such that it informs his credibility in respect of not only that issue, but also this issue.[48]

161 That is, in regard to the agreement for lease claim, when Mr Turnley was cross-examined extensively about the entries in his Notebook,[49] he deposed that its contents were a summary record of "texts and emails" made well after the events to which they refer, except for an entry dated 7 August 2017 (ostensibly being of prime significance to SGH's case on the agreement for lease issue). In his evidence on 13 February 2020, in response to the

Tribunal's questions, Mr Turnley stated that his entry:

17 August Phone call from [Mr Forrest] in the morning. $11.091.66 per cent GST, 10 percent outgoing, payable to David Gibbs, Balnarring Motors. Asked if lease would be in line with Petrogas. He said lease would be 3 x 3 x 3.

was a record of a telephone conversation that he had had with Mr Forrest, made contemporaneously with the time that it occurred.[50] Mr Kewley relies on Mr Turnley's subsequent retraction of this evidence on the morning of 14 February 2020 when, in his own words, "after not [getting] any sleep" during the night, while he reflected on his evidence, Mr Turnley conceded that the 7 August 2017 entry was not contemporaneous, but was likely instead to have also formed part of his preparation for the litigation, as characterised the other entries in the Notebook.[51]

162 Mr Kewley's third submission is that at the time the Turnleys and Mr Forrest became involved with the Acquisition Agreement in July 2016, they were already involved in the Gourmet Paddock business, and had been since October 2015. The funding of Gourmet Paddock had been provided solely by Mr Turnley, and therefore a pattern of conduct or division of roles had thereby been established: with Mr Forrest being the "money man" or

"rainmaker", Mr Turnley the person responsible for funding, structure of the relevant entities, accounting and paperwork and Mr Craig Turnley the

"hands-on man" insofar as he performed the fit-out work" for Gourmet Paddock, and subsequently worked at the Balnarring service station on a day to day basis. These respective roles, established for Gourmet Paddock business, Mr Kewley submitted, were carried over into the Balnarring Motors venture under the Acquisition Agreement.[52]

163 As I apprehend his fourth submission, Mr Kewley contended that the requirement that Mr Turnley provided all the funding is consistent with the fact that the Business Purchase Contract and the Land Purchase Contract were and remained in the sole name of Mr Forrest as purchaser, that they

remained in Mr Forrest's name and that (perhaps more by inference, from his direct evidence) he would have nominated SGH as purchaser of the business and the land if Mr Turnley had procured100% of the funds required to settle the Land Purchase Contract.[53]

164 Mr Kewley further submitted fifthly, that the evidence of Mr Turnley concerning his meeting with a Mr Morgan of RGM Accountants on 21 December 2016, Mr Turnley's two meetings with Mr Garrivan of the Commonwealth Bank of Australia on 29 December 2016 and 20 January 2017, and his authorising the bank to obtain a valuation of his family home at Naples Street, Mornington (details of which Mr Garrivan conveyed to Mr Turnley on 27 January 2017), indicates an acceptance by Mr Turnley that the funding of the balance of the purchase price was his responsibility, and that by these actions he was attempting to discharge that responsibility.[54]

165 Mr Kewley also submitted, sixthly, that the evidence of Mr Forrest

concerning Mr Turnley's pressuring Mr Forrest to "find investors and loans", which is stated to stand unchallenged, demonstrates an acknowledgment by Mr Turnley of his obligation to source the balance of the purchase price for the land.[55]

(a) first, that the evidence of Mr Forrest that he allowed [SGH] to occupy the [land] under my license agreement with [Mr Bristow], on the condition that [Mr Turnley] provide 100% of the funds necessary to complete the purchases detailed in the [Land Purchase Contract] cannot be supported, given that it was an alleged condition of an alleged agreement in December 2016 (denied by SGH, and in respect of which SGH contended there is no satisfactory evidence) by which Mr Forrest granted to SGH a license to occupy the premises;[56]

(b) in effect, and citing examples, the weight of the evidence militates against the conclusion that Mr Turnley agreed to source all the funds for the purchase of the land;[57]

(c) there is no documentation supporting the existence of the alleged term, and indeed there is a document supporting the inference that Mr Forrest was actively seeking investors for the land himself;[58] and

(d) there is no documentation evidencing a communication from Mr Forrest to Mr Turnley to the effect that Mr Turnley had failed to fulfil an undertaking to source the funding for the entire purchase price of the land;[59]

167 I should state at the outset that I am unable to accept Mr Oswald-Jacobs's first submission. I agree that there is no evidence supporting the apparent contention of Mr Forrest in his first statement that Mr Forrest entered into an agreement with SGH in early December 2016 that SGH occupy the land as a sub-licensee or, indeed, that Mr Forrest was expressly permitted under the Land Purchase Contract, or otherwise by Mr Bristow, to do so. I accept in this respect Mr Turnley's evidence, because there is no evidence to any other effect, that other than signing the Business Purchase Contract (and the subsequent amendment), Mr Forrest did not make any contribution, either by way of work or money to the preparations for the settlement of the purchase of the business, and nor was Mr Forrest involved in the settlement itself. At no stage did Mr Forrest ever request, or was Mr Forrest given, keys that allowed him access to the premises.

168 I do not however accept Mr Oswald-Jacobs's submission, by way of extension, that Mr Forrest's apparent contention that it was in this alleged context that Mr Forrest imposed the condition that occupation of the premises was granted only on the condition that Mr Turnley would source 100% of the funds necessary to complete the land purchase contract, fails. I have already found that, fairly construing his evidence, Mr Forrest contended that the alleged oral agreement concerning the sourcing of the funds for the purchase of the business and the land was in July 2016, and not in early December 2016 when SGH commenced occupation of the premises. Proof of the alleged term concerning the sourcing of funds therefore does not fail, as submitted by Mr Oswald-Jacobs it should, for want of proof of the agreement of which, on one view of Mr Forrest's evidence, it was one of the alleged terms.

The resulting trust claim-the first sub-issue-analysis and findings on whether there was a term that Mr Turnley would source all the funding

169 In respect of Mr Kewley's first submission challenging the credibility of Mr Turnley, given contradictory written evidence in respect of the alleged condition precedent, I am not satisfied that:

(a) the reference in paragraph 7 of Mr Turnley's affidavit sworn 3 September 2018 to the effect that Mr Turnley believing that he would be able to finance the balance of purchase price if alternative funding sources had not been identified; and

(b) the reference in his subsequent witness statement dated 12 April 2019 to an alleged statement by Mr Forrest to Mr Turnley that he (Mr Forrest) would have ample time to arrange suitable funding for the balance of the purchase price

is sufficient to put in doubt Mr Turnley's credibility in respect of his evidence concerning the issue. Mr Turnley was cross-examined by Mr Kewley at length about this evidence. He credibly gave evidence under cross-examination[60]to the effect that whilst Mr Forrest stated that he (Mr Forrest) would be able to obtain finance, Mr Turnley did not see it as other than a joint responsibility.

170 If a syntactical reading of paragraph 7 of Mr Turnley's affidavit sworn 3 September 2018 is adopted for the purpose of challenging his credibility (and I have previously made clear that I consider that approach inappropriate in the circumstances), I also accept Mr Oswald-Jacobs's reply submission that when Mr Turnley refers to himself being able to finance the balance of the purchase price of the land, that is in the expressly stated context of his having a belief that he would be able to do so. That sentence in his affidavit, I agree, does not purport to give any evidence about the nature of his agreement with Mr Forrest.

171 In respect of Mr Kewley's second submission which challenges the credibility of Mr Turnley's evidence viva voce, I am of the view, particularly having seen Mr Turnley in the witness box on the occasion that he did so, that Mr Turnley's retraction of his evidence given the previous day demonstrated a sincere desire on his part to ensure that his evidence was correct in all respects, and to ensure that he did not mislead the Tribunal.

172 In respect of Mr Kewley's third submission that the respective roles established for Gourmet Paddock business-in effect, Mr Forrest as the

"rainmaker" partner and Mr Turnley as the "funding and paperwork" partner- were carried over into the Balnarring Motors venture under the Acquisition Agreement, I have reviewed the evidence. It indeed shows that in about October 2015, Mr Forrest approached Mr Turnley and Mr C Turnley about an opportunity to start a restaurant business in Balnarring. Mr Forrest informed Mr Turnley that a rent deposit would need to be paid, which would provide an opportunity to acquire the rights to design and operate the restaurant. Mr Forrest suggested that it would be a three-way venture, between himself, Mr Turnley and Mr C Turnley. At that stage, CITEK had a

$300,000 overdraft facility available, and Mr Forrest informed Mr Turnley that that would be sufficient to pay for the construction and fit out of the premises. According to Mr Turnley's evidence, Mr Forrest informed Mr Turnley that Mr Forrest could not contribute any funds himself to the venture, but that he would find and introduce other investors to satisfy further funding requirements. Mr Forrest, Mr Turnley and Mr C Turnley agreed that they would proceed with the venture with equal interests in a corporate entity or otherwise.

173 Mr Turnley gave evidence that by drawing on his own superannuation funds, and on an overdraft facility possessed by CITEK, Mr Turnley invested about

$211,000 in the Gourmet Paddock business. CITEK also invoiced Paddock Securities over $702,000 for fit-out services provided by Mr C Turnley. Mr Forrest did not contribute any capital to Paddock Securities or to the business.

174 As a consequence of the capital requirements of the Gourmet Paddock business, in early 2017 Mr Turnley agreed to a proposal put by Mr Forrest whereby he would sell the Turnleys' family home in Mornington to Ms Myers with an option to repurchase the property in February 2022, on the alleged representation by Mr Forrest that by having Ms Myers as registered proprietor, funding for the Gourmet Paddock business could be readily obtained.[61] In the result, the Turnleys are currently tenants of the Turnleys' family home.

175 I was informed by counsel that there is now a legal proceeding in the County Court of Victoria, in which the Turnleys are seeking orders having the effect of unwinding this transaction.

176 The Gourmet Paddock business opened in November 2017, and it was

managed by Mr Forrest. It closed in November 2018. I accept Mr Turnley's evidence that all the money invested in it by CITEK was lost, and none of CITEK's invoices for providing Mr C Turnley's services in connection with the fit-out were paid.

177 Indeed, the evidence of Mr Turnley was that in relation to the Gourmet Paddock venture:

[W]e discussed the idea whereby I would provide the initial funds as they were required to pay for the build and fit-out, and that Mr Forrest would then find other investors to provide subsequent ongoing finance.[62]62

178 I am satisfied that there is nothing in the circumstances relating to the Gourmet Paddock business that provides credible support for the proposition that the funding by Mr Turnley of that business provided an obvious template for the way in which the funding requirements of SGH would be met.

179 In respect of Mr Kewley's fourth submission, I consider that the fact that the Land Purchase Contract and the Business Purchase Contract remained in Mr Forrest's name, whether of itself or considered with the other factual matters, gives little support for the finding of an oral term amounting to the alleged condition precedent. It is equally consistent with the proposition that, having entered into the Land Purchase Contract and the Business Purchase Contract in his own name, Mr Forrest was prepared to hold his interest as trustee for whichever party (and not necessarily SGH) or parties who were, in the event, prepared to contribute to the purchase price of the land.

180 Mr Kewley's fifth submission is to the effect that Mr Turnley's conduct subsequent to the date of the Acquisition Agreement, in particular his meetings with Mr Morgan of RGM Accountants on 21 December 2016, Mr Turnley's two meetings with Mr Garrivan of the Commonwealth Bank of Australia on 29 December 2016 and 20 January 2017, is consistent only with the existence of the condition precedent.

181 I have carefully recited above the relevant events in which Mr Turnley was involved between August 2016 and 20 January 2017. I also accept Mr Oswald-Jacobs's reply submission that the evidence shows that the meeting with Mr Morgan of the RGM Accountants on 21 December 2016 was not, as the above account of the evidence shows, "arranged by" Mr Turnley; in fact, the evidence is that Mr Forrest organised the meeting for Mr Turnley because "[Mr] Morgan had been [Mr Forrest's] accountant and friend, and could give [them] all advice as to the best structure for the holding of shares in SGH by each of [Mr C Turnley and Mr Forrest] as the case may be". In cross- examination, Mr Turnley explained that the principal purpose of the meeting was to discuss the possibility of finding finance to pay the balance of the purchase price for the land. The attendance by Mr Turnley at the meeting with Mr Morgan, a gentleman recommended by Mr Forrest, where funding was high on the agenda is, I consider, consistent with Mr Turnley's evidence that it was the joint responsibility of the "partners" in SGH to source that funding. It is also consistent with Mr Forrest's own evidence, in which he stated that prior to "late June/early July 2017" "we were all trying to find a solution for settlement".[63]

182 I have concluded that there is nothing in the above conduct of Mr Turnley consistent only with the conclusion that there was a term of the Acquisition Agreement that Mr Turnley was "being looked to find the money...whether

it was [his] money or someone else's money"[64] or that "money had to be paid or money had to be found"[65] by Mr Turnley.

183 In respect of Mr Kewley's sixth submission, I note from the evidence that Mr Turnley denied that he had constantly pressured Mr Forrest "to find investors and loans".[66] Even if he had, I find that such conduct would have been

consistent with Mr Turnley's evidence that the procuring of the balance of the purchase price for the land was a joint responsibility of Mr Turnley and Mr Forrest.

184 I am not satisfied that the respondents have demonstrated by the weight of the evidence that on the balance of probabilities it was an oral term of the acquisition agreement that it was Mr Turnley's sole responsibility to procure funding for the balance of the purchase price for the land.

185 My principal reasons for my conclusion are first, and I accept Mr Oswald- Jacobs's submission in this respect, there is no communication between Mr Forrest and Mr Turnley, or other document, as supports the existence of such a term. In particular, there is nothing in the correspondence between Mr Turnley and Mr Forrest from July 2016 to February 2017, to which I have referred, as supports the existence of such a term. In fact, the tenor of the correspondence is entirely to the effect that Mr Turnley, Mr C Turnley and Mr Forrest (and particularly from 6 September 2016, when SGH was incorporated) had bought the business and intended to buy the land (financed or otherwise), without any condition making the Turnley or SGH interests contingent upon Mr Turnley procuring the required balance of the purchase price of the land.

186 Secondly, I accept Mr Oswald-Jacobs's submission that there is no documentation evidencing a communication from Mr Forrest to Mr Turnley to the effect that Mr Turnley had failed to fulfil the alleged undertaking to procure funding for the balance of the purchase price of the land. It would be reasonable to suppose that, given the consequences to SGH and/or the Turnleys upon such alleged failure on their part, Mr Forrest would have, in some manner, recorded it in writing.

187 Thirdly, the respondents' allegation that Mr Turnley agreed to procure all the funds for the purchase of the land was, as I have stated, credibly contradicted or denied by Mr Turnley. As I have said, his evidence was to the effect that Mr Forrest assured him and Mr Craig Turnley that the finding of finance would "not be a problem", or that it was a joint responsibility to find it.

188 Fourthly, I also found compelling the above evidence of Mr Turnley and Mr C Turnley concerning their informing Mr Forrest that they were not in a position to procure finance beyond that which was required to purchase the business, and to meet the deposit requirement for the purchase of the land.[67]

189 There is a further reason why I prefer the evidence of the Turnleys over that of Mr Forrest concerning the existence or otherwise of the condition precedent, and the alleged failure of Mr Turnley to fulfil it. This is because although, as I have said, Mr Forrest did not do so in a communication with one or other of the Turnleys, Mr Forrest made written reference to the alleged condition precedent only in a document to which both the Turnleys were strangers.

190 This was on the occasion of Mr Forrest's entry into the Balnarring Motors Deed. Mr Forrest, Ms Myers, Ms Fraser and Doolkoora were the parties to the Deed.

191 The Balnarring Motors Deed refers (in preamble N) to the alleged condition precedent in these terms "[Mr Turnley] a person with whom [Mr Forrest] had an agreement to provide monies for both the purchase of the business and the land, so that [Mr Forrest] would not have to either contribute the net balance of the purchase price for [the land] or borrow same". It also refers (in preamble O) to Mr Turnley informing "Mr [Forrest] that [Mr Turnley] would not be able to contribute any further monies whatsoever towards payment of the balance of the price due in respect of the [Land Purchase Contract]"

192 Not only did the Balnarring Motors Deed purport to record these two matters; it also operated, by its purported grant of interests in the whole of the land to Doolkoora and Peninsula, to extinguish any beneficial interest that may have been acquired by SGH in the land by reason of paying the deposit (clause 7 of the Deed).

193 Yet Mr Forrest chose not to show the Balnarring Motors Deed to either of the Turnleys. The most likely reason for his not doing so, it may be reasonably conjectured, is that he apprehended that the Turnleys would dispute many of the propositions in the Balnarring Motors Deed that are now in dispute between Mr Forrest and the Turnleys.

194 In the absence of arranging for the Turnleys to be parties to the Balnarring Motors Deed, or of Mr Forrest at least having given notice to the Turnleys of its contents, I have concluded that Mr Forrest was, at the time the Balnarring Motors Deed was entered into, less assured and confident about the strength of the propositions for which he now contended concerning the alleged condition precedent. I therefore ascribe less weight to his evidence on the issue, than I do to the Turnleys'.

195 The respondents have failed to satisfy me that there was a term of the Acquisition Agreement that SGH's interests in the business and the land were subject to Mr Turnley procuring 100% of the funds necessary to settle the purchase of the business and the land.

The resulting trust claim-the second sub-issue-whether there was an SGH/Forrest relinquishment agreement.

196 The respondents also bear the onus of proof in respect of the alleged SGH/Forrest relinquishment agreement.

35. The first and second respondents say in response to paragraph 27 [of the Third Further Amended Points of Claim dated 10 December 2019, referring to the representation made by Mr Forrest to Mr Turnley that Mr Forrest had identified a person who was willing to also contribute funds for the purchase of the land from Mr Bristow], they admit that [Mr Forrest] speaking and acting as a director of SGH and [Mr Turnley] discussed the fact that [Mr Forrest] had found someone who would pay the balance of the purchase price for the land (and the requisite stamp duty), and they agreed that as a consequence that person would have 100% ownership and control of the [land] and the [business] instead of SGH...(emphasis added).

43. ...as a consequence of the failure by SGH to pay or source the balance of the funds required to acquire the land, and the fact that Doolkoora paid the balance of the funds required to acquire the land instead of SGH, SGH agreed to forego any entitlement it may have had (which is not admitted) to an interest in the land as co- owner (emphasis added).

198 In other words, the respondents allege that the alleged SGH/Forrest relinquishment agreement extended to SGH relinquishing its interests in the business and the land, both now the subject of ownership claims by SGH.[68]

199 Mr Oswald-Jacobs for the applicant made a preliminary submission; to the effect that because it is alleged in paragraph [35] of the respondents' pleading that Mr Forrest was acting as a director of SGH when entering into the alleged relinquishment agreement, and SGH as the alleged counterparty agreed to forego any entitlement it may have had in the land as co-owner, proof of the alleged SGH/Forrest relinquishment agreement must fail at the outset. This is because, he submitted, a person cannot have an enforceable agreement with itself.

200 I consider that the capacity in which Mr Forrest was acting when entering into the alleged SGH/Forrest relinquishment agreement may have been more felicitously described in paragraph 35 of the FADAC. On analysis, I consider, it might be contended that a person in the position of Mr Forrest may have been acting in two capacities when entering into the alleged SGH/Forrest relinquishment agreement, that is to say, as the legal owner of the land purchase contract, in which SGH had a beneficial interest by reason of having made the deposit payments (see my findings below)[69] and also, it appears to be contended, as a director of SGH authorised to convey to the any potential funder of the balance of the purchase price that SGH had relinquished any interest it had acquired in the land.

201 The Tribunal is not a tribunal of pleadings. It must act according to the substantial merits of the case in all proceedings. In the circumstances, I am not prepared to adopt a formal basis, based on a syntactical approach to the contents of paragraph 35 of the FADAC, for finding that the respondents have failed to prove the alleged relinquishment agreement.

The resulting trust claim-the second sub-issue-the respondents' evidence

202 Concerning the substance of the respondents' evidence in respect of the alleged relinquishment agreement, in his first witness statement filed 3 May 2019, Mr Forrest states:

10. [Mr Turnley] and [Mr C Turnley] failed to honour [the alleged agreement whereby Mr Turnley would source the balance of the funds to purchase the land under the Land Purchase Agreement].

11. Both [Mr Turnley] and [Mr C Turnley] agreed that our arrangement had ended, and they rescinded any rights to the business and the land (emphasis added).

12. After extended conversations in early July [2017] with [Mr Turnley and Mr C Turnley] and [Mr Turnley] and [Ms Straub], everyone agreed that [Mr Turnley and Mr C Turnley] and any of their associated trusts or companies had rescinded any rights or claims against the freehold and the business (emphasis added).

13. Everyone was aware that because of [Mr Turnley] and [Mr C

Turnley]'s failure to honour their commitments and provide the funds necessary for settlement, I was exposed to be sued by the Bristows...

14. In fact [Mr Turnley] and [Mr C Turnley] thought it was a great outcome that someone was going to bail us out and we still had the opportunity to get a lease and business. We were getting off lightly considering the potential outcome.

15. [Mr C Turnley] was very concerned that his and [Mr Turnley's failure to meet and honour their commitments [to source the balance of the funds to purchase the land under the Land Purchase Agreement] was already getting out into the community as he claimed the real estate agent [appointed in respect of] the contracts was already "running his gums" [or, as I understand the meaning of that expression, talking about it]"

16. [Mr Turnley] said it was an "exciting opportunity for all" after we met and agreed what was happening.

17. When [Mr Turnley] finally told me that he could not [fulfil] his obligation with the required funding his exact words were "well, [the Business Purchase contract and the Land Purchase Contract are] in your name I guess it's your problem, I hope you find yourself a solution."

18. I came to an agreement with [Ms Fraser] to complete the purchase as outlined in the [Balnarring Motors Deed] produced by [Mr Gibbs] and she did.

203 By his third witness statement filed 20 May 2019, Mr Forrest states:

7. In late June/early July 2017 Kim Turnley and Craig Turnley agreed that they would forgo any interest or rights to the land and business and occupation of the sites because they could not provide the funds necessary to complete settlements per the original agreement. They acknowledged a bail out was necessary. Kim and Craig asked me to try and negotiate SGH proposal to lease. Prior to this we were all trying to find a solution for settlement (emphasis added).

8. In early July 2017...[Mr Turnley] and [Mr C Turnley] had already agreed with me, that they had forgone any interest in the business and land and occupation of the site (emphasis added).

The resulting trust claim-the second sub-issue-SGH's evidence

204 By his statement dated 12 April 2019, Mr Turnley stated:

32. I did not in July 2017 nor at any time discuss with [Mr Forrest] nor enter into an oral agreement with him to the effect that, as the purchaser named in the [Land Purchase Agreement] and the purchaser named in the [Business Purchase Agreement], he would procure funds from a third-party to enable him to complete those contracts on the basis that [Mr C Turnley] and myself and any of our related entities would forego any and all entitlements or interests in the [land], the [business] and any monies paid by us in relation to the [land] and the [business], and on the further basis that [Mr Forrest] would forego any claim against me and that he would seek to negotiate with 1/3 party purchaser of the [land] and the [business] for himself, [Mr C Turnley] and myself to acquire the [business] and lease the [land] for the purposes of making the [business] from the [land].

205 By his reply statement dated 10 May 2019, Mr Turnley responded to the above paragraphs of Mr Forrest's first witness statement as follows:

[To paragraph 11 of Mr Forrest's first witness statement]

25. Neither Craig nor I ever agreed that "our arrangement had ended" and that we "rescinded any rights" to the business and the land, either in our capacities as directors of SGH, or otherwise.

[To paragraph 12 of Mr Forrest's first witness statement]

26. No such conversations took place nor was any such agreement ever made. At about that time myself and [Mr C Turnley] on behalf of ourselves and our respective family trusts agreed a restructure of [their] interests in [the Gourmet Paddock business].

[To paragraph 14 of Mr Forrest's first witness statement]

27. [Mr C Turnley] and I were happy that [Mr Forrest] had been able to meet his obligation to obtain funding for the purchase of the [land] in addition to the $150,000 that had been contributed by SGH.

[To paragraph 17 of Mr Forrest's first witness statement]

28. I did not ever say those words, nor words to that effect, to [Mr Forrest].

206 By his reply statement dated 10 May 2019, Mr C Turnley also responded to the above extracts from Mr Forrest's first witness statement as follows:

[To paragraph 11 of Mr Forrest's first witness statement]

17. I did not ever agree with [Mr Forrest] in my capacity as a director of SGH, or otherwise, that it or I relinquish any rights in the [business] and the[land].

[To paragraph 12 of Mr Forrest's first witness statement]

18. I did not ever agree with [Mr Forrest] in my capacity as a director of SGH, or otherwise, that my family trust relinquish any rights or claims against the [business] or the [land]. My family trust was never a shareholder in SGH. In or about July 2017, my family trust agreed to a restructure of its interests in the Gourmet Paddock business.

[To paragraph 14 of Mr Forrest's first witness statement]

19. My father and I were very happy that [Mr Forrest] had been able to find another investor to contribute to the purchase of the [land]. We had been a very concerned that had he not done so the instalments of the purchase price which had been funded by our family for the [land] would have been lost. We had never undertaken to procure funding for the whole of the purchase price. We had only ever undertaken to procure a contribution of

[To paragraph 15 of Mr Forrest's first witness statement]

20. I did say to [Mr Forrest] at one stage that Blane Paton of Payton

Estate Agents was "running his gums". It was a reference to one of the owners of the Balnarring gym, Peter Hornsey, telling me that Blane Paton had told him that [Mr Forrest]'s had not settled and whilst not able to settle his purchase of 10 Stumpy Gully Road Balnarring. Peter Hornsey told me that he was interested in purchasing that block. I told [Mr Forrest] that his inability to settle his purchase of 10 Stumpy Gully Road, Balnarring reflected badly on my father and myself.

207 By her reply statement dated 10 May 2019, Ms Straub responded to Mr Forrest's witness statement as follows:

[To paragraph 12 of Mr Forrest's first witness statement]

4. I never had any conversations in "early July" [2017], extended or otherwise, to the effect that the family trust established for my immediate family with my partner [Mr C Turnley], relinquish any rights or claims against the [business] or the [land]. I was party to discussions at about that time to the effect that our family trust would agree to a restructure of its interests in the Gourmet Paddock business. The trust was a shareholder in Paddock Securities Pty Ltd.

208 Further, Mr C Turnley's evidence was that Mr Forrest told him during their many discussions at this time concerning finance for the purchase of the land that Mr Forrest told him that he had an investor who wished to remain anonymous, and that "the investor would need to be part owner of the land to the extent of the capital contributed by them".

No evidence of conduct by which SGH relinquished its rights to the business

209 A particular feature of Mr Forrest's evidence set out above (and which is emphasised in the quoted sections), therefore, is that the alleged SGH/Forrest relinquishment agreement extended not only to SGH's interest in the land, but also to SGH's interest in "the business" and "occupation of the site".

210 I accept Mr Oswald-Jacobs's submission that the whole tenor of Mr

Turnley's communications with Mr Forrest, and with third parties (on which Mr Forrest was copied), and events that occurred from late June to October 2017 is to the effect that SGH did not at any time relinquish its interest in the business. For example:

(a) In February 2017, Mr Turnley had started negotiating with Mr Sando of Petrogas Pty Ltd ("Petrogas") for a supply agreement of Mobil products on better terms than those contained in the then existing agreement between the business and Caltex. Mr Turnley gave evidence, which I accept, that Mr Forrest was aware of this, because he so informed by Mr Forrest;

(b) both Caltex and Petrogas subsequently provided a proposed "Supply Agreement with Branding" and an "Equipment Lease" for new petrol pumps to Mr Turnley. In Mr Turnley's view, which I accept, the combined offerings represented a better arrangement than the existing arrangement with Caltex;

(c) the proposed Supply Agreement and Equipment Lease were between Petrogas and SGH, with Mr Forrest, as a director of SGH, being named as the proposed signatory of each and as proposed guarantor.

(d) on receipt of these proposals in March 2017, Mr Turnley asked Mr Forrest to arrange an appointment with Mr Gibbs to provide advice to SGH on the contracts;[70]

(e) later Mr Forrest informed Mr Turnley that Mr Gibbs had looked at the contracts, and advised that the Petrogas contract was suitable. Mr Gibbs had advised Mr Forrest that the Petrogas agreement was preferable to the Caltex agreement; [71]

(f) by email dated 5 June 2017, Mr Turnley provided to Mr Forrest a profit and loss statement for the business for the 6 months to 31 May 2017 and a balance sheet as at 310 May 2017. Mr Turnley stated in the email:

In reality the first six months has been a learning curve in getting to understand the fuel and motor mechanic business but fortunately I am happy we have come through with a solid profit with excellent opportunities to further our profit in the next 6 months...

During the [last] 6 months we have invested in a number of improvements which will hold us in good stead in the future:

• Improved security with both cameras and lighting Cameras $4,600

• Repair work to drainage
• Electrical upgrade
• Site and Building Clean up
• New Rear Roller-to improve access to workshop and improved ventilation.

(g) on 8 June 2017 Mr Forrest in his capacity as a director of SGH signed the Supply Agreement with Petrogas in the presence of Mr Sando from Petrogas. It provided for:

(i) the supply by Petrogas to SGH of bulk and packaged engine oil for re-sale in the business; and

(ii) a supply period from 1 June 2017 to 31 May 2027, and thereafter until either party terminated it by 60 days written notice to the other.

(h) Motor Trade Insurance was subsequently obtained in the name of SGH as insured for the building, contents and public liability, and noting Mr Bristow as an interested party;[72]

(i) on 30 June 2017, Mr Turnley on behalf of SGH notified Caltex by email that it would be terminating its supply agreement with Caltex and "switching supply to a competitor supplier in July 2017", an email on which Mr Forrest was copied;

(j) on 19 July 2017, Mr Turnley and Mr Forrest had a meeting as a consequence of which Mr Turnley sent Mr Forrest a text stating:

Thanks for giving me time this afternoon. We can make this an exciting opportunity for all (emphasis added),

"No worries mate see you soon cheers."[73]

(k) on Monday 31 July 2017, Mr Turnley texted Mr Forrest:

(l) Mr Forrest responded by text dated 31 July 2017:

Hi guys spoke to lawyer this afternoon...minor delay, apparently will settle in the morning, will call as soon as I get confirmation cheers

(m) Mr Turnley texted Mr Forrest on 1 August 2017:

Stewie. Did the settlement [go] through this morning? Thanks. Kim.

(n) Mr Forrest responded to Mr Turnley on 1 August 2017:

Hi guys yep settled but haven't heard back officially yet but know it has gone through cheers

(o) On 7 August 2017 Mr Turnley sent a text message to Mr Forrest asking Mr Forrest to:

...give me a ring when you get a chance. We need to organise a Morwell trip & catch up re the next steps at the Servo

No worries call you later this morning, spoke to Pearse last week about the GST etc.

211 It was not in dispute, therefore, that the Turnleys continued to work actively in the business after the date of the alleged relinquishment agreement. It was not suggested, and in the circumstances it would be absurd to suggest, in my view, that they did so as employees of Mr Forrest or of Balnarring Service Centre Pty Ltd, a company of which they had no knowledge and in which they had no interest. They were not paid remuneration by Mr Forrest or any entity associated with him, other than SGH. It is plain, in my view, that their continuing to work in the business was in their capacity as directors and/or employees and/or consultants to SGH.[74]

212 By an information pamphlet dated 13 August 2017,[75] which I find to have been prepared by one of the Turnleys for distribution to customers of the business, customers were informed of works that the Turnleys had arranged to be carried out from 21 August 2017 at the service station, including:

• ...upgrading the forecourt which will improve accessibility and speed up throughput;
• We will be installing new pumps which will be placed strategically to allow four vehicles to be served at the one time;
• Fast flow diesel will be available at four hoses. ULP and premium 98 will also be available on four hoses;
• We will be switching fuel supplier on completion of these works. Mobil will become our exclusive supplier with their range of premium products;
• We will be modernising the way we do business internally to provide an improved customer experience...

We are extremely appreciative of the enthusiastic support we have received from our customers over our first eight months of operation. It has given us the confidence to invest in the future of the servo and deliver on our goal of having a high-quality business providing excellence as a vehicle workshop and as a fuel supplier relevant to our community...

213 On 14 August 2017, Mr Turnley emailed a copy of the above information pamphlet to Mr Forrest, Ms Myers and Mr C Turnley.

214 On 17 August 2017, Mr Turnley therefore texted Mr Forrest:

Hi Stewie. Can you check out whether the Balnarring Motor Trade has been transferred [from the Bristow's interests]. This should be transferred to [SGH]. Thanks Kim.[76]

Hi mate will check out both items, will call you soon cheers.

216 The actual changeover of the signage and the branding and the upgrade of the forecourt of the service station went ahead in the second half of August 2017, to the knowledge of Mr Forrest.[77]

217 Given Mr Forrest's evidence, therefore, that the alleged SGH/Forrest relinquishment agreement related to both the land and the business, it is clear that this is not supported by a consideration of the above events between late July 2017 and late August 2017. The events are entirely consistent with Mr Turnley's announced aspiration on 5 June 2017 to "further [SGH's] profit in the next 6 months" and do not, I consider, reflect the alleged circumstance that the Turnleys and/or their other interests and/or SGH relinquished their interest in the business in July 2017.

218 Mr Kewley submitted that Mr Forrest's version of events in this respect should be preferred. He relies first, on the proposition[78] that in about July 2017 Mr Forrest set about identifying (in Ms Fraser or her companies) a source of funding required to settle the balance of the purchase price of the land on the basis of the funders assuming a full interest in what was purchased. It follows, his submission suggests, that the Tribunal should find that this was a natural consequence of a concession by Mr Turnley that he was in breach of the alleged obligation to procure the entirety of the funds required to purchase the business and the land, and was willing to relinquish any interest the Turnleys or SGH would otherwise have held or did hold in the land.

219 I am not prepared to find that Mr Forrest's conduct, particularly when considered with the contemporaneous conduct of SGH and the Turnleys to which I have referred, is explicable only by reference to the making of the alleged SGH/Forrest relinquishment agreement.

220 Mr Kewley also submitted that the Turnleys were prepared to relinquish any interest in the land that SGH would otherwise have held on the basis that Mr Forrest in his discussions with the then unnamed investor (Ms Fraser) would seek to ensure that SGH continued to occupy the land as tenants. Put simply, Mr Kewley submitted, the Turnleys were prepared to enter into the SGH/Forrest relinquishment agreement and sacrifice the $150,000 deposit in return for an opportunity to "occupy the land and conduct the business". This is at odds with the alleged terms of the relinquishment agreement (in which it is alleged the Turnleys and SGH relinquished their interests in the land and the business), and the fact that the respondents allege that "on or around 1 August 2017 [Mr Forrest] sold the business to [Doolkoora]".

221 SGH also relies in this respect on the Turnley's and Mr Forrest's dealings in relation to the unrelated business Gourmet Paddock, to which I have referred. Mr Oswald-Jacobs submitted that any renunciation of rights by SGH as alleged by the respondents could have been expected only to have been effected in the same manner as what occurred by way of formal agreement in respect of the Gourmet Paddock business.

222 On 10 August 2017, the Mr Forrest, Mr Turnley, Mr C Turnley, and Ms Myers on their own behalfs and behalf of their respective corporate entities entered into an agreement entitled Gourmet Paddock Restaurant Agreement (the "GPA").

223 Paddock Securities was the corporate trustee of the Paddock Securities Unit Trust. Units in the Trust were owned by Mr Turnley's corporate vehicle (30 units), Mr C Turnley corporate vehicle (30 units), and Ms Myers as trustee of her family unit trust (30 units). The GPA records that the Trust was created in September 2016 in respect of the unitholders' participation in the Gourmet Paddock business.

224 The GPA is obtuse in its drafting, and contains a number of drafting errors.[79] It appears to provide for an arrangement consequential upon Mr Turnley's

corporate vehicle and Mr C Turnley's corporate vehicle being "unable to fully fund their agreed portion of the fit out and development costs of the [Gourmet Paddock] premises" (Preamble H).

225 Under the arrangement, each of Mr Turnley's and Mr C Turnley's corporate interests and Ms Myers would transfer 10 of their units in Paddock Securities Unit Trust to "S & M Investment Trust" (the trustee and unitholders of which are not disclosed, but which may be assumed to be interests associated with Mr Forrest) such that:

(a) the unit holders of Paddock Securities Unit Trust would from that date be Mr Turnley (20 units) and Mr C Turnley (20 units), Ms Myers as

trustee of her family unit trust (20 units) and "S&M Investment Trust" 30 units; and

(b) a new company NEWCO, with shares equally allocated to Mr

Turnley's corporate vehicle, Mr C Turnley's corporate vehicle and Mr Forrest, would be incorporated, which would be entitled to a capped percentage (15% only) of the net profit of the Gourmet Paddock business, a further percentage in certain circumstances and to 15% of the net sale proceeds from any sale of the business (clauses 8.1-8.5).

226 The GPA also provides that Mr Turnley's corporate vehicle, Mr C Turnley's corporate vehicle and the Turnleys themselves (including Mrs Turnley) release and discharge Paddock Securities, the Paddock Securities Unit Trust (which I take to be a reference to the unit holders) and Mr Forrest from

claims in respect of payments and distributions from and other claimed entitlements in respect of the Paddock Securities Unit Trust (clause 10).

227 Mr Oswald-Jacobs submitted that release and indemnity the subject of clause 10 of the GPA gives effect to an agreement which is very similar to the agreement asserted by Mr Forrest to have been made in relation to the

"business and the land" pursuant tom the alleged SGH/Forrest renunciation agreement (to the extent, I take him to mean, that each amounts to a renunciation of rights). He submitted that the Tribunal should conclude that it is unlikely that the same parties who at about the same time "separated themselves from each other in another business entity by way of a formal deed in which the relinquishment of rights was expressly provided for, would have separated themselves from each other in relation to the business without so much as an email confirmation".

228 Mr Forrest gave evidence that there was no written agreement between himself and the Turnleys in respect of the Turnleys relinquishing their rights in respect of the business and the land because he had been advised by Mr Gibbs that he did not need to have such an agreement because he was the named purchaser in each of the Land Purchase Contract and the Business Purchase Contract.[80] Mr Kewley submitted that this distinguishes the circumstances from those faced by the parties in respect of the GPA. I do not regard this as a proper basis for distinction. Whatever may have been the nature of the legal advice given to Mr Forrest (if any), Mr Forrest held the Business Purchase Contract (whether as agent or trustee) on behalf of the interests of SGH which paid the purchase price. He held the Land Purchase Contract subject to the equitable interest held by SGH in the land who, I find below, paid the deposit payments for the land amounting to $150,000.

229 As for Mr Forrest's evidence that he had been advised by Mr Gibbs that no written relinquishment agreement was necessary, it is significant that in his letter to Mr Forrest and Ms Fraser dated 28 November 2017, Mr Gibbs raised his concerns about the possible making of payments by Mr Turnley or SGH.[81] It is difficult to accept the proposition that Mr Gibbs would have sent that letter if he had already advised Mr Forrest concerning the need or otherwise for a written agreement evidencing the alleged SHG/Forrest relinquishment agreement.

230 Further, the Recitals to the Balnarring Motors Deed state that "[Mr Forrest] paid or caused to be paid" each of the three instalments in respect of the Land Purchase Contract.[82] If Mr Forrest had raised the alleged SGH/Forrest relinquishment agreement with Mr Gibbs, it is doubtful that the Recitals would have taken this form.

231 Also, on 11 December 2017 Mr Gibbs made a file note of a conversation he had with Mr Forrest to the effect that "Bristow payments were made by [Mr Turnley]...Kim will want the $150K back...will be fight". I accept Mr Oswald-Jacobs's submission that if Mr Forrest had informed Mr Gibbs about the alleged SGH/Forrest relinquishment agreement at all in July 2017, it is unlikely that Mr Gibbs would have made a file note to that effect in December 2017.

232 I infer from these matters that no advice about the need for a written relinquishment agreement was given by Mr Gibbs to Mr Forrest in July 2017.

233 Given, therefore, that the evidence suggests that Mr Forrest did not discuss with Mr Gibbs the supposed relinquishing by SGH, or by anyone, of rights to the three instalments, the strength of Mr Forrest's evidence in respect of this issue is diminished.

234 On 28 July 2017, the purported date of the Balnarring Motors Deed, Mr Forrest was still a director of SGH, and yet there is no provision in the Balnarring Motors Deed referring to SGH having agreed to forfeit the three instalments. In fact, Recital O to the Balnarring Motors Deed refers in the first sentence, obliquely at most, only to what appears to be an obligation undertaken Mr Turnley to "contribute...further monies towards the payment of the balance of the price due in respect of the [Land Purchase Contract], and the consequences for Mr Forrest if the further monies were not paid. I have already made my observations as to the fact of the Turnleys, whose interests were so affected by the Balnarring Motors deed, were not being invited to be parties to it.

235 I accept Mr Oswald-Jacobs's submission to the effect that given that there is no agreement in respect of the alleged SGH/Forrest relinquishment agreement of the type demonstrated by the GPA, and no written communication relating to it, makes it improbable that it occurred.

236 Given also my finding that the respondents have failed to prove the alleged condition precedent, the making of a subsequent SGH/Forrest relinquishment agreement as an alleged result of not fulfilling the alleged condition precedent becomes far less probable.

237 I have also found persuasive both the oral evidence[83] and written evidence of both Mr Turnley, Mr C Turnley and Ms Straub (to which I have referred above), to the effect that none of them agreed in late June/early July 2017 to relinquish any rights which they or their associated trusts or companies had in the business and the land.

238 Particularly upon a consideration of the conduct and announced expectations of the Turnleys, to the knowledge of Mr Forrest, in respect of the business between July 2017 and August 2017, and from the contents of the GPA and the Balnarring Motors Deed, I find that the respondents have failed to prove the alleged SGH/Forrest relinquishment agreement.

The resulting trust claim-the third sub-issue-whether, absent the finding of the alleged condition precedent and the alleged SGH/Forrest relinquishment agreement, SGH entered into the alleged SGH/Fraser relinquishment agreement.

239 It will be recalled that on 1 August 2017, the respondents paid the $810,000 balance owing in respect of the purchase of the land. The respondents also paid stamp duty of $80,000.

240 Although it is nowhere pleaded in the FADAC, the respondents rely in their closing submissions on an alternative submission, that is to say the apparent or ostensible authority of Mr Forrest to bind SGH when, at the time, he was a director of SGH.

241 In particular, Mr Forrest allegedly speaking as a director of SGH, is alleged to have entered into the alleged SGH/Fraser relinquishment agreement, that is to say, that if Ms Fraser paid the balance of the purchase price, then she (or, impliedly, any entity owned by her, such as the respondents) would own the land (and the business) outright.

242 Section 128(1) of the Corporations Act 2001 (Cth) provides:

Section 128 Entitlement to Make Assumptions

A person is entitled to make the assumptions in section 129 in relation to dealings with a company. The company is not entitled to assert in proceedings in relation to the dealings that any of the assumptions are incorrect.

A person is not entitled to make an assumption in section 129 if at the time of the dealings they knew or suspected that the assumption was incorrect.

243 Section 129(1) of the Corporations Act 2001 (Cth) provides:

Assumptions that can be made under section 128

A person may assume that anyone who appears, from information provided by the company that is available at ASIC, to be a director of the company...:

(a) has been duly appointed; and

(b) has authority to exercise the powers and perform the duties customarily exercised or performed by a director ...of a similar company.

244 Section 198A of the Corporations Act 2001 (Cth) provides:

(2) The directors may exercise all of the powers of the company except any powers that this Act or the company's constitution (if any) requires the company to exercise in general meeting.

245 Mr Kewley for the respondents submitted that as a director and agent of SGH, Mr Forrest had the capacity[84] to make an offer in July 2017 to Ms Fraser, which subsequently resulted in her agreement that, if she paid the balance of the purchase price for the land:

(a) she would have "total ownership of the land"[85] (which, she states in paragraph 4(b) of her statement dated 14 January 2020, Mr Forrest told her);

(b) she "would get the financial benefits of the payments made to that time [in respect of "all three contracts']"[86]

and regardless of whether he and the Turnleys had made the alleged SGH/Forrest relinquishment agreement as claimed by the respondents.[87]

246 Mr Kewley submitted that by Ms Fraser subsequently paying $810,000 to settle the purchase of the land, Mr Forrest "bound SGH to forego any interest in the land it may otherwise have had".[88]

247 Mr Kewley submitted that Ms Fraser was entitled to rely on the fact that Mr Forrest could bind SGH to an enforceable agreement to that effect, pursuant to the above sections of the Corporations Act 2001.

248 Mr Kewley also submitted that this circumstance alone is sufficient to rebut the presumption of a resulting trust in favour of SGH as a claimed consequence of its having contributed to the purchase price of the land, given that the presumption of resulting trust can be rebutted by evidence of the actual intention on the part of the parties.

249 The respondents also bear the onus of proof in respect of the alleged SGH/Fraser relinquishment agreement and in, particular, that it was entered into by Mr Forrest on behalf of SGH.

(a) there is no sufficient evidence that Mr Forrest on behalf of SGH entered into an agreement with Ms Fraser to the effect now alleged;[89]

(b) there is no evidence of Ms Fraser having conducted an ASIC company search of SGH, as required by s 129(2) of the Corporations Act 2001 (Cth);[90] and

(c) the nature of the alleged SGH/Fraser relinquishment agreement was not of a type customarily entered into by a director of a similar company to SGH, within the meaning of s 129(2) of the Corporations Act 2001 (Cth), and therefore Ms Fraser was not entitled to make the assumption that Mr Forrest had authority to enter into it on behalf of SGH.[91]

251 In his first witness statement filed 3 May 2019, Mr Forrest states:

18. I came to an agreement with [Ms Fraser] to complete the purchase as outlined in the [Balnarring Motors Deed].

252 In his third witness statement filed 20 May 2019, Mr Forrest states:

8. In early July 2017 Ms Fraser agreed to purchase the freehold and the business under the condition she was 100% owner of both. I agreed to this with Ms Fraser. [Mr Turnley] and [Mr C Turnley] had already agreed with me, that they had foregone any interest in the business and land and occupation of the site.

253 In her first witness statement dated 18 April 2019, and seemingly prepared without legal assistance, Ms Fraser's evidence about what Mr Forrest said to her when seeking her interest in paying this amount was as follows:

2. Stewart Forrest is a close friend of a married couple I went to school with. I met Stewart and his wife...a few times around twenty years ago at my friends events as birthdays.

3. [His wife] who is a pharmacist became a closer friend and we attended a book club together before we had children.

5. In early July 2017 Stewart phoned me to see if I would be interested in completing a contract that his partners had failed to secure funding for. Stewart was concerned that his was the name on the contract and was personally responsible to complete such.

6. The contracts detailed that Stewart Forrest was the only person that was legally entitled to purchase the [business], as he had completed this part of the purchase.

7. The contracts detailed that Stewart Forrest was the only person legally entitled to purchase [the land].

9. The series of back-to-back contracts were drafted by BSA Legal in Balnarring . Without completion of the purchase of [the land] the contract to purchase the business was void.

35. The contracts outline that Stewart Forrest had the right to occupy the premises under a written licence agreement with [Mr Bristow] forming part of the sale contracts for no fee. Stewart Forrest has explained to me that he received this 10 month plus occupation in exchange for paying the deposits knowing he would [lose] the money if he did not secure funding to settle.

36. At the time of settlement, Stewart Forrest explained to me that his business partners Kim Turnley and Craig Turnley operated the business SGH at the premises under a verbal agreement that Stewart could provide [pursuant to] the licence to him in the sale contracts. This was provided as Craig and Kim Turnley had initially agreed to supply deposits and secure funding for settlement. Kim Turnley and his family were being paid by the business to run the business in the lead up to settlement [of the land purchase].

41. Stewart Forrest advised me pre settlement that the other directors of [SGH] agreed to forfeit their deposits as they had not secured funding. This was relayed to David Gibbs by

Stewart Forrest. David [Gibbs's] file notes support this (emphasis added).

254 In her subsequent witness statement dated "December 2019" which the parties agreed should be dated 14 January 2020, and prepared by her then solicitors,[92] Ms Fraser stated:

3. In May 2017 Stewart Forrest called me and said there was a chance that the group he was involved with at Balnarring Motors would not be able to settle on the contract to purchase the land on which the business of Balnarring Motors was operated because his partners had been unable to secure funding for the balance of the purchase price as they had promised to do. He said because the two contracts were back-to-back if the contract to purchase the land fell over then the former owners had the right also to terminate his contract to terminate the business. He told me he was concerned because his name was on each of the contracts, and he was personally liable to complete them. He advised me that settlement was due in late July 2017, and that he would call me again if the funding his partners were working on did not come through. Other details of that conversation are referred to in [my witness statement dated 18 April 2019].

4. On about 7 July 2017 [Mr Forrest] telephoned me and we discussed:

(a) his partners had failed to find the funding that was required to pay the balance of the purchase price of the [land] and the stamp duty, and they had told him it was now his problem, not theirs;

(b) he repeated he was personally exposed as he was the named purchaser in each of the contracts, which were back-to-back contracts for the purchase of [the business and the land] and the rear block [at 10 Stumpy Gully Road, the subject of the option agreement];

(c) he said the amount needed to settle the contract for the purchase of the [land], which was to occur at the end of the month, was $890,000 including stamp duty, and that

$150,000 deposit had been paid on the [land] and around

$90,000 had been paid on the [business]. He said his wife...owned 30% of the company [known to be SGH] that was in occupation due to a licence from him and that they would like to stay on the [land] and continue to operate the [business];

(d) he was a director of that company and the other people involved were his partners from the Gourmet Paddock business.

(e) we agreed that if I accepted the deal, I would have total ownership of the [business] and the [land]; it was not so much as a deal more the taking over of contracts. I was interested in acquiring 100% of the land and the business...

(f) I said I was interested in going ahead but I needed a few days to digest the proposal.

5. Because Stewart had told me that he was a director of the company that was in occupation of the [land] and operating the [business], I assumed he had the capacity to negotiate with me on its behalf and to legally bind that company in the event that we reached an agreement.

6. Stewart and I had another telephone conversation on or about 19 July 2017 in which we discussed:

(a) I was prepared to take over the three contracts at late notice and I would pay about $900,000 for the whole deal, on the basis that I/my company would get the financial benefit of the payments made to that time.

(b) I was going away, and I wanted my identity to remain undisclosed, and I did not wish to meet the occupants or for them to meet me until I returned...

9. In early August settlement of the purchase of the [land] took place. Doolkoora paid $810,000 to buy the [land] and $80,000 stamp duty on the purchase, and the [respondents] became the registered proprietors of the [of the land] on 2 September 2017 (emphases added).

255 First, having reviewed the above material, I accept SGH's submission to the effect there is no sufficient evidence that Mr Forrest, on behalf of SGH entered into an agreement with Ms Fraser to the effect alleged.

256 In particular, paragraph [8] of Mr Forrest's witness statement filed 20 May 2019 makes clear, by his use of the word "I", without any indication of his acting under any agency on behalf of SGH, that Mr Forrest saw himself alone as having the right to sell the business and the land because, at all relevant times, he saw himself as the owner of them. This accords with the plain gist of his evidence (which, for the reasons given above, I have not accepted) that, until such time as SGH complied with the condition precedent (that is to say, its alleged obligation under the Acquisition Agreement to source the finance for the payment of the balance of the purchase price of the land), he was the owner of the respective contracts.

257 Further, nowhere in the statements of Ms Fraser is it evident that Ms Fraser, when having discussions with Mr Forrest that were to lead to her purported purchase of the business and the land on the terms contained in the Balnarring Motors Deed, was dealing with Mr Forest as a director of SGH.

258 It is also particularly noteworthy that the Balnarring Motors Deed does not refer to SGH. It simply re-states Mr Forrest's abiding contention that at all relevant times he held each of the Business Purchase Contract and the Land Purchase Contract "in his own right".

259 Secondly, I accept Mr Oswald-Jacobs's second submission that even if there was evidence of Ms Fraser dealing with Mr Forrest as a director of SGH, there is no evidence of Ms Fraser in July 2017, when she was negotiating with Mr Forrest, obtaining confirmation by an ASIC search that Mr Forrest was a director of SGH, as required by s 129(2) of the Corporations Act 2001 (Cth). My reading of the sub-section leads me to conclude that it is the confirmation of someone as a director of a company as discerned only from an ASIC search, and not from what someone may represent or say about their being a director, that allows a person to make the assumptions described in section 129(2) of the Corporations Act 2001 (Cth).

260 Thirdly, if I am incorrect in my second finding, and if she was therefore aware that Mr Forrest was acting as a director of SGH, the only assumption that a person in the position of Ms Fraser could make in respect of her dealings with Mr Forrest was that he had the authority "to exercise the powers and perform the duties customarily exercised or performed by a director of...a similar company" within the meaning of section 129(1) of the Corporations Act 2001 (Cth).

261 There was no evidence led by the respondents to the effect that such transactions are customarily exercised by directors of small companies such as SGH.

262 Mr Forrest's purporting to enter into the alleged oral SGH/Fraser relinquishment agreement with Ms Fraser:

(a) that proceeded on the basis that a small proprietary company (SGH), having invested a total of $246,000 in a business and land, is prepared to write off that amount on an alleged relinquishment of those interests;

(b) where Ms Fraser accepted only the representation of Mr Forrest as to SGH's alleged relinquishment of interests;

(c) where there is no satisfactory evidence that Ms Fraser was informed by Mr Forrest that, by its occupation of the premises from December 2016 to July 2017, SGH was able to recover the value of that financial investment (Mr Forrest's allegation in the proceeding);

(d) that is used as the basis for a later agreement (the Balnarring Motors Deed):

(i) from which Mr Forrest stood to benefit substantially, it being intended under the Balnarring Motors Deed for his company BSC to become the owner of the business and for PPG (then his company) to become a co-owner of the land; and

(ii) in respect of which Ms Fraser had no evidence of the other directors of SGH (whomever Ms Fraser may consider them to have been, but who were Mr Turnley and Mr C Turnley) being privy;

is not, in my view, an exercise of a director's power customarily exercised by a director of a similar company within the meaning of section 129(1) of the Corporations Act 2001 (Cth).

263 Ms Fraser's knowledge that SGH had invested $246,000 in the business and the land, my first finding above, is an important component of my conclusion as to the non-customary nature of the alleged SGH-Fraser agreement. I note that although there is evidence in her third statement dated 14 January 2020 that Ms Fraser was aware of the amounts that had already been paid for the business ("around $90,000") and as a deposit on the land ("$150,000"), no part of her evidence goes go so far as to state whether she had any knowledge as to the source of such payments.

264 Notwithstanding this, I have concluded that Ms Fraser must be taken to have known that SGH had already paid $96,000 for the business and $150,000 for the land.

265 This follows from the fact that Mr Gibbs of DGA in completing the purchase of the land and documenting the Balnarring Motors Deed, was acting for both Mr Forrest and his corporate interests and Ms Fraser and her corporate interests. This is clear from the pieces of evidence referred to below relating to Mr Gibbs, and from Mr Forrest's and Ms Fraser's written evidence generally.[93]

266 Ms Fraser's knowledge therefore extends to the knowledge held by her agent Mr Gibbs. The knowledge of Mr Gibbs will be imputed to Ms Fraser where that knowledge is material to the transaction because, under the circumstances, the agent has a duty to communicate it to his principal, Ms Fraser.[94]

267 Mr Gibbs's knowledge as to the involvement of SGH and the Turnleys in business and the land, including the fact that SGH had paid the three instalments of the deposit for the land, is clear from a number of pieces of evidence:

(a) the delivery to Mr Gibbs of the documents incorporating SGH and establishing the Stumpy Gully Trust;[95]

(b) that Mr Gibbs asked Ms Myers for the name of the accountant "who set up the Stumpy Gully trusts";[96]

(c) Ms Fraser's statement that Gibbs's "files show that in October 2016 he was aware that [Mr Turnley] could be involved in the purchase of the [land] and/or the [business]. This is consistent with information from [Mr Forrest] where he explained that [Mr Gibbs] was aware of the deposits..."[97]

(d) A letter from DGA to Mr Forrest and Ms Myers dated 22 November 2016,[98] in which a number of paragraphs address matters pertaining to SGH and in which Mr Gibbs writes in the second last paragraph:

"[A]gain, for this entity, a Shareholders/Unitholders Agreement will need to be put in place...";[99]

(e) Ms Fraser gives evidence that Mr Gibbs was "aware from December 2016 that [Mr Turnley] was operating the business as he consulted with [Mr Forrest] and other parties on the setup of SGH. He was aware that [Ms Myers] was a minority 33% shareholder. This is consistent with

[Mr Gibbs's] and my discussions on the matter";

(f) a letter dated 12 December 2016 from DGA to Mr Forrest and Ms Myers,[100] in which under the heading "Purchasing entity" Mr Gibbs alludes to the fact that an "entity" other than Mr Forrest may have settled the purchase of the business. In all the circumstances it can be inferred that the entity he had in mind was SGH;

(g) by email from Mr Turnley to Mr Gibbs dated 14 December 2016,[101] Mr Turnley informs Mr Gibbs of the payment of the balance of the purchase price for the business, to which Mr Turnley attached a bank slip from a book of deposit slips for the Commonwealth Bank account of SGH styled "STUMPY GULLY HOLDINGS PTY LTD AS

TRUSTEE FOR STUMPY GULLY UNIT TRUST", which attachment is listed in the "Attachments" box of the email under the "Subject" box. In the email, Mr Turnley references "the sale of the business, Balnarring Motors and land at 229 (sic) Frankston Flinders Road

Balnarring";

(h) the letter sent by DGA to Mr Turnley dated 19 December 2016,[102] in which Mr Turnley is informed as to the need for payment of the next instalment of the purchase price for the land, and is asked whether he can "confirm when this has been paid?". Mr Turnley is also told that TGA needed "instructions in relation to the purchasing entity". From that, it is to be inferred that Mr Gibbs was well aware that the purchasing entity was someone other than Mr Forrest, and in all the circumstances it can be inferred that the entity that he had in mind was SGH;

(i) the email sent by Mr Turnley to Mr Gibbs the following day, informing Mr Gibbs that Mr Turnley would "organise a bank cheque for Dave now";[103]

(j) a letter of advice dated 31 March 2017 sent by TGA to Mr Forrest and Ms Myers in relation to the Caltex and Petrogas supply agreements and the Petrogas equipment lease agreement.[104] in the second paragraph,

there is a reference to "Kim". The two Petrogas agreements[105]were emailed by Mr Turnley to Mr Forrest on 23 March 2017.[106] the document description of the attachments included the words "stumpy gully holdings". The counterparty in each of the agreements is SGH;

(k) the letter dated 11 May 2017 sent by DGA to BSA Legal in relation to the purchase of the land.[107] The letter encloses an insurance certificate.[108] The insurance certificate states that the insured's name as being "Stumpy Gully Holdings Pty Ltd T/as Balnarring Motors". Among the risks insured our buildings and contents;

(l) Recital N in the Balnarring Motors Deed, which reads "[F]ollowing the completion of the purchase of the Balnarring Motors business, the business was operated on a daily basis by Kim Turnley..."

(m) the handwritten file note made by Mr Gibbs of a call with Mr Forrest on 20 October 2017 regarding "Purchase from Bristow + Balnarring Motors"[109] that a "shareholders/unitholders agreement" was needed;

(n) the handwritten file note made by Mr Gibbs of a call with a Mr Geoff Kidd[110]on or about 11 November 2017, in which Mr Gibbs writes

"SGH P/L as tr for STUT [illegible] Bal Motors" and "he's dealing with Kim someone or other I think it's Kim Turnely (sic)";[111]

(o) the letter dated 28 November 2017 from TGA to Mr Forrest and Ms Fraser.[112] The second last paragraph on the first page of that letter is particularly significant. The writer is clearly concerned about the

"evidence and emails on the file that some of the payments made in respect of either the deposit for the premises or the business were made by [Mr Turnley]". Significantly, it is also stated in the last line of that paragraph that: "[I]t may be that the Background paragraphs in the Deed may need to be amended to reflect who made the actual payments and if they were made by [Mr Turnley] the arrangements being made";

(p) the handwritten file note made by Mr Gibbs of a call with Mr Forrest on 11 December 2017[113]in which Mr Gibbs notes that "servo-yes-Bristow payments were made by open square brackets Mr Turnley] all of the vital ones... I said that [Mr Turnley] will [illegible] that the is 150K he'll want back [illegible] will be fight"; and

(q) the letter dated 2 January 2018 to Miss Fraser and Mr Forrest.[114] it is apparent from the letter that the "July Deed"[115] referred to in the letter is yet to be finalised.

268 I find for the above reasons that I am not persuaded that Ms Fraser had a proper basis for assuming that Mr Forrest had authority on behalf of SGH to enter into the alleged SGH/Fraser relinquishment agreement, and proof of the alleged agreement therefore fails.

269 In the result, I find that SGH did not, by reference to the alleged SGH/Fraser relinquishment agreement, relinquish any rights that it had in the land as a result of making the deposit payments.

270 Mr Kewley posits an alternative submission, if his primary submission to the effect that there was an SGH/Fraser relinquishment agreement in relation to the land, is not established. That is to the effect that SGH is estopped from denying that the respondents own the whole of the land, by reason of Ms Fraser's detrimental reliance on representations to this effect made to her by Mr Forrest on behalf of SGH, from such representations it would now be unconscionable for SGH to resile.[116] Leave was not granted to advance an estoppel claim based upon an alleged representation. The submission also fails in substance, for the reasons that I have found-that Ms Fraser was not entitled to rely on the representations of Mr Forrest because she should have known or suspected that any assumption that Mr Forrest could bind SGH was incorrect.

The resulting trust claim-the fourth sub-issue-whether SGH made a financial contribution towards the purchase of the land

(e) on or about 29 July 2016, Mr Turnley caused CITEK to pay the sum of $50,000 to Paton Estate Agents;

(f) on or about 20 December 2016, Mr Turnley caused SGH to pay the sum of $50,000 to Mr Bristow;

(g) on or about 12 May 2017, Mr Turnley caused SGH to pay the sum of $50,000 to Mr Bristow .

9C The payment of $50,000 made by CITEK to [Paton] on or about 29 July 2016 was made for an on behalf of SGH and by way of loan from CITEK to SGH, but in contemplation and therefore prior to the incorporation of SGH.

272 By their Agreed Statement of Facts, the parties agree that:

(a) on or about 29 July 2016, Mr Turnley caused CITEK to pay the sum of $50,000 to Paton Estate Agents;

(b) on or about 20 December 2016, Mr Turnley caused SGH to pay the sum of $50,000 to [Paton**]**; and

(c) on or about 12 May 2017, Mr Turnley caused SGH to pay the sum of $50,000 to Mr Bristow.

273 As to the payment of $50,000 made on 29 July 2016, in their FADAC the

respondents allege that such payment was made "prior to the incorporation of SGH and by Mr Turnley, alternatively by CITEK at Turnley's request or direction, by reason of which SGA cannot now claim the benefit of that payment for itself."

274 Ms Fraser also made the following observations in her witness statement dated 18 April 2019:

10. The receipt (sic) for all deposits on the land purchase of 2994 Frankston Flinders Road, Balnarring from Paton Real Estate are in Stewart Forrest (sic) name. The first $5000 was paid by Rachel

Myers in July 2016, no loan was recorded by Kim Turnley in the books of SGH for this amount.

11. Citek Pty Ltd gave Stewart Forrest the second deposit instalment of $59,440 by way of a bank cheque to Paton real estate on 29 July 2016.

12. There is no document or text or phone call in evidence between Eileen Turnley the director of Citek Pty Ltd and Stewart Forrest which details any loan agreement for this $50,440.

13. The [SGH] records detail a loan owing to Citek Pty Ltd for this amount. This was entered by Kim Turnley in his capacity as a director sometime after December 2016.

14 There is no evidence of an agreement by Stewart Forrest for this entry in the balance or its repayment. The bank statements of [SGH] show that $20,000 was re-paid in the financial year 16/17 and the balance in 17/18.

15 In Mr Turnley's first claim he states that he paid all of the

deposits, in Mr Turnley's revised claims he states he paid them all on behalf of SGH.

16. Stumpy Gully was incorporated on September 5, 2016.

17 A bank cheque from STH was written for funds for the third instalment on 20 December 2016 for $50,015. The receipt was issued to Stewart Forrest.

18 Kim Turnley accounted this (sic) in the records as a loan owing to Citek Pty Ltd. No evidence has been provided to support a loan for the deposit of dollars 50,015. Stewart Forrest was not aware of this being recorded as a loan nor were the records provided to him at any time in the financial year 16/17 or 17/18.

19 In the financial year 17/18, this loan was repaid through various instalments. These were not approved by Stewart Forrest or copies of the transaction or records provided to Mr Forrest or his wife. Mr Forrest was a director at the time and his wife a 33% shareholder.

20 On 12 May, 2017 a fourth deposit was paid by SGH of $50,015.

21 Again Mr Turnley entered this as a loan owing to STH without discussion with Mr Stewart Forrest and again repaid this in full in the 17/18 financial year without Mr Forrest approval or knowledge.

275 The respondents therefore challenge the proposition that the payment by CITEK was for and on behalf of SGH.

276 Mr Turnley's evidence was that on 29 July 2016, he withdrew funds from CITEK for the purpose of funding a bank cheque payable to Paton for the sum of $59,440.[117] He provided the bank cheque to Mr Forrest that day. His evidence that the purpose of the bank cheque was to pay for the following items:

(a) $50,000 for the initial deposit for the land;

(b) $9000 for the deposit for Balnarring Motors; and

(c) $440 for the first month's licence fee to occupy the adjoining property at 10 Stumpy Gully Road Balnarring.[118]

277 He arranged for the cheque to be made out to Paton, because Mr Turnley believed were the agents acting on behalf of the vendors of both Balnarring Motors and the land. Its receipt by Paton is evidenced by a receipt made out to Ms Rachel Myers.

278 Mr Turnley gave evidence that at that date, Mr Forrest, Mr Turnley and Mr C Turnley had not yet agreed on the formation or final structure of any entity that would own the business and the land. Mr Turnley withdrew the money from the CITEK account (to which he was a signatory, and with the authorisation of Mrs Turnley) because it was available, and that it was the most straightforward way for him to account for the money. He gave evidence that he did not expect that CITEK would ultimately be the owner of Balnarring Motors or the land, nor was there any agreement with Mr Forrest at that time or any time to the effect that CITEK would be the owner of the

land. In other words, according to Mr Turnley's evidence, SGH alleges that the payment of $50,000 was made by CITEK to Paton, in contemplation and therefore prior to the incorporation of SGH, and that it was made by way of loan from CITEK to SGH.

279 I find from Mr Turnley's evidence that the funding was provided by CITEK, at his instigation. I find that he was a signatory to the CITEK bank account, and was duly authorised to withdraw those funds from that account. I find from his evidence that Ms Myers hand delivered to Paton the cheque made out to Paton. I find that after the incorporation of SGH in September 2016, the amount was recorded in the relevant CITEK accounts as a loan to SGH. I find that the bank cheque was in fact drawn in the sum of $59,440 and that

$50,000 of such bank cheque was a part payment of the deposit for purchase of the land.[119]

280 I accept that the other directors of SGH Ms Myers, and subsequently Mr Forrest were aware of the advance by CITEK being a loan to SGH, because it was recorded as such in the balance sheet and profit and loss statement for SGH for each of the financial years ending 30 June 2017 and 30 June 2018,

281 To the extent, therefore, that the respondents do not concede that the payment by CITEK was for and on behalf of SGH, I find from the evidence that this was so.

282 In relation to the first and second payments of $50,000, I find that Paton was the agent engaged by the vendor Mr Bristow, the then registered proprietor of the land.

283 SGH relies on a further part deposit payment made from SGH funds by way of a bank cheque in the sum of $50,000 made out to Mr Bristow, and hand delivered by Mr Turnley to Paton on 20 December 2016. I find that such bank cheque, was therefore a further part payment of the deposit by SGH for purchase of the land.[120]

284 SGH relies on a further part deposit payment made from SGH funds by way of a bank cheque in the sum of $50,000 again made out to Mr Bristow, and hand delivered by Mr Forrest at Mr Turnley's request to Paton Estate Agents on 12 May 2017. I find that such bank cheque, was a further part payment of the deposit for purchase of the land.[121]

285 I find that SGH therefore made payments totalling $150,000 in respect of the purchase of the land.

286 A presumption of a resulting trust arises where one person provides the purchase price of a property, which is conveyed into the name of another person.[122]

287 The presumption is rebuttable.[123]

288 The respondents have been unable to show by reference to the alleged condition precedent that no trust in favour of SGH was intended at the times that it made the respective payments of the purchase price or that, at the times it made the respective payments, SGH intended that its beneficial interest in part of the land should otherwise pass to the respondents, in whom legal title subsequently became vested.

289 I also find that the respondents have not demonstrated by reference to the alleged SGH/Forrest relinquishment agreement, or the alleged SGH/Fraser relinquishment agreement that SGH renounced its interest in the land previously acquired by way of resulting trust.

290 I find that a resulting trust arose in favour of SGH upon paying each of the

$50,000 instalments, and that the respondents hold their shares in the land subject to a resulting trust in favour of SGH to the extent of its total contribution of $150,000 towards the purchase price of the land.

291 Power to order a sale is conferred upon the Tribunal by s.225 of the PLA, which, where relevant, provides as follows:

Application for order for sale or division of co-owned land or goods

(1) A co-owner of land may apply to VCAT for an order or orders under this Division to be made in respect of that land...

(2) An application under this section may request -

(a) the sale of the land and the division of the proceeds among the co-owners; or

(b) the physical division of the land among the co-owners; or

(c) a combination of the matters specified in paragraphs (a) and (b).

292 In most instances, it is not practicable to physically divide land. What is generally sought, as in this case, is a sale. Section 228 of the PLA provides:

(1) In any proceeding under this division, VCAT may make any order it thinks fit to ensure that a just and fair sale or division of the land or proceeds of sale occurs.

(2) Without limiting VCAT's powers, it may order-

(a) the sale of the land or goods and the division of the proceeds of sale among the co-owners; or

(b) the physical division of the land or goods among the co- owners; or

(c) that a combination of the matters specified in paragraph (a) and

293 Whether the Tribunal has a general discretion to refuse to order a sale of co- owned property was considered by Judd J in Yeo v Brassil [2010] VSC 344 where the learned judge said (at para 21 et seq):

21 The appellant conceded that there may be circumstances in which a court may refuse to exercise the power of sale or division notwithstanding the existence of the jurisdictional foundation. He submitted, however, that hardship or general unfairness did not justify a refusal of an application. While there are no decided cases dealing with the relevant sections of the Victorian legislation, the New South Wales Supreme Court and Court of Appeal, when dealing with corresponding powers of sale, recognised there may be circumstances in which an order may be refused, although the circumstances are limited. In Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068 Myers J held,

As I have previously said I do not consider that there is an absolute duty in the Court to make an order merely because the parties are co-owners and although I adhere to my refusal to attempt to define the nature of the matters which would be a bar to the application, what I had in mind was some proprietary right, or some contractual or fiduciary obligation with which an order for sale would be inconsistent. I see no reasons for reconsidering the view I previously took, and I am still of the opinion that the Court has no general discretion which would enable it to refuse an application on such grounds as hardship or unfairness.

22 In Hogan v Baseden [1997] NSWCA 150; (1997) 8 BPR 15,723 at 15726-7, the New South Wales Court of Appeal held,

It would not be a proper exercise of the power to decline relief under s 66G of the Conveyancing Act to refuse an application on grounds of hardship or general unfairness: See Re McNamara and the Conveyancing Act (1961) 78 WN (NSW) 1068; Ngatoa v Ford (1990) 19 NSWLR 72 at 75. It follows that in the unhappy event that the parties are unable to settle their differences then the making of an order appointing trustees for sale seems inevitable unless the Respondent could establish a legally binding agreement not to put her out of occupation of her home, or circumstances that would ground some estoppel to similar effect.

23 I would respectfully adopt the general principles applied by the Supreme Court of New South Wales and the New South Wales Court of Appeal as providing appropriate boundaries to the circumstances in which a court may properly decline to exercise the power to order a sale or division of Property when it has jurisdiction to do so. The court has no general discretion which would enable it to refuse an application on grounds of hardship or unfairness.

294 In the present case, the respondents have failed to prove the alleged condition precedent as rebutting SGH's resulting trust claim, and the subsequent alleged SGH/Forrest relinquishment agreement and the subsequent alleged Forrest/Fraser relinquishment agreement.

295 A legally binding agreement not to sell the land is not otherwise suggested by them, nor is there anything in the circumstances that would ground some estoppel to a similar effect.

296 In these circumstances, it is appropriate to order a sale and a division of the proceeds. An order to this effect will be made. A copy of a pro-forma of the Tribunal's usual orders can be obtained from the principal registrar. The parties may apply for directions, if the parties are unable to agree on the various matters set out in the form or otherwise fail to reach agreement.

297 It was also clear from the evidence that the respondents have been receiving rental from the applicant from the land for some time. They will need to account for a proportion of it to SGH, whether from the net proceeds of sale or otherwise.

298 SGH bears the onus of proof in respect of the alleged agreement for lease.

299 Similar to the alleged agreements upon which the respondents rely in regard to the resulting trust claim, SGH's case is that the alleged express terms of the alleged agreement for lease alternatively a lease by parol in early August 2017, were wholly oral.

300 I have made specific findings, in relation to the alleged condition precedent and the alleged SGH/Forrest relinquishment agreement, as to why I prefer the evidence of the Turnleys over that of Mr Forrest.

301 It will be necessary consider the evidence given by the parties concerning the alleged oral agreement to lease alternatively lease by parol and, to that end, I make some further observations about the nature of the other evidence given at the hearing by Mr Forrest as goes to his credibility.

302 It is necessary, to provide a brief account as to how the evidence of Mr Forrest came to be presented.

303 Orders were made on 8 November 2018 for the commencement of the hearing on 20 May 2019, with 7 hearing days allocated, and for the filing of witness statements, with reply witness statements thereafter.

304 At that time, Mr Forrest was the third respondent in the proceeding.

305 Witness statements dated 12 April 2019 were subsequently filed on behalf of the applicant.[124]

306 The first and second respondents filed a witness statement of Ms Fraser dated 18 April 2019.

307 Mr Forrest filed an undated statement on about 3 May 2019. Mr Forrest amended it, prior to its being tendered during the hearing.

308 Mr Forrest subsequently filed undated witness statements on 17 May 2019 and 20 May 2019. Both were also amended, prior to their being tendered during the hearing.

309 The hearing duly started on 20 May 2019, and ran intermittently for four days during the period to 27 May 2019.

310 On 22 May 2019, Mr Forrest proffered to SGH's lawyers a copy of an application dated 21 May 2019 to enter into bankruptcy, announcing that he "is now a bankrupt".

311 By consent of the first, second and third respondent, on 22 May 2019 the respondents were given leave to withdraw their cross-claims against the third respondent, Mr Forrest.

312 Mr Kewley first appeared for the respondents on the fourth day of the hearing, 27 May 2019.

313 On 28 May 2019, a day that was converted to a directions hearing following the inability of the parties that day to reach a negotiated settlement, and upon application of SGH, I ordered pursuant to section 81 of the Victorian Civil and Administrative Tribunal Act 1998 that Mr Forrest produce to the Tribunal at the resumption of the hearing on 29 May 2019 documents evidencing that he is a bankrupt, as claimed by him on 22 May 2019.

314 On 29 May 2019, Mr Kewley informed the Tribunal that he had been informed by Ms Fraser that Mr Forrest would not be responding that day to the order, and was reported to being indisposed that day. Mr Oswald-Jacobs, counsel for the applicant, informed the Tribunal that his instructors' searches had not revealed any public record of a bankruptcy order having been made against Mr Forrest. On 29 May 2019, I adjourned the hearing part heard to 9 December 2019.

315 The respondents subsequently brought a strike out application against SGH, which I heard on 25 November 2019. One of the outcomes of that application was that SGH served a Second Further Amended Points of Claim dated 27 November 2019, in which it also chose to abandon its previously pleaded causes of action against Mr Forrest.

316 The fifth day of the adjourned hearing started on 9 December 2019, and was due to run for the five days of that week. It became clear from Mr Kewley's cross-examination of Mr Turnley on the sixth day, 10 December 2019, that matters were to intended to be put to Mr Turnley concerning the terms of the Acquisition Agreement as alleged by Mr Forrest, but which were not matters the subject of any of the three statements of Mr Forrest previously filed by him.

317 Mr Kewley submitted that such matters as were to be put to Mr Turnley in cross-examination were matters that could sensibly be dealt with in chief by Mr Forrest, and that the hearing might still proceed on that basis. Mr Oswald-Jacobs for SGH objected to this course.

318 On 10 December 2019, I adjourned the hearing part heard to 10 February 2019, having made the following ruling and order:

1. The Tribunal rules that where witness statements have been previously ordered, and particularly having regard to order 5 of SM Vassie's orders dated 28 May 2018, and also to the fact that the central issues in the proceeding will be largely determined by the

Tribunal's findings concerning the content of conversations alleged to have taken place between Mr K Turnley of the applicant and Mr Forrest (a witness proposed to be called by the respondents), it is in the interests of justice that further evidence now proposed be given by Mr Forrest (beyond that contained in his witness statements served 1 May 2019 (TB 166-172) and a further witness statement filed 17 May 2019) be filed and served. An adjournment is therefore necessary on account of the desire of the respondents to lead further evidence from Mr Forrest, and possibly Mrs Fraser.

1. It follows that the Tribunal rules against the respondents' suggested course, made so as to avoid an adjournment, to put for the first time further proposed evidence of Mr Forrest to the applicant's first witness Mr K Turnley currently under cross-examination, and in respect of which neither the witness nor his Counsel has had any prior notice.

2. The respondents must file and serve any further witness statements of the evidence of Mr Forrest and Ms Fraser by 20 December 2019.

319 No further witness statement of Mr Forrest was filed.

320 At the resumption of the hearing on day 7, 10 February 2020, cross- examination of Mr Turnley continued, but I adjourned it in the early afternoon so as to enable the respondents to serve a witness summons to be served on Mr Forrest. It was clear that the respondents' legal advisors had been having some difficulty in obtaining Mr Forrest's co-operation in signing a proposed fourth witness statement which, I was informed, had been prepared by Mr Kewley, following his consultations with Mr Forrest.

321 Mr Forrest attended the Tribunal on 11 February, and during the lunchtime adjournment Mr Forrest was provided an opportunity to read and consider his proposed fourth witness statement, however at the afternoon's resumption, he made it clear that he was not prepared to sign it and have it tendered.

322 Mr Forrest's first witness statement, second witness statement and third witness statement were then received into evidence, following the making of a number of excisions by Mr Forrest.[125]

323 The evidence of Mr Forrest was therefore less fulsome than the respondents' advisors had clearly hoped for.

324 The reason why Mr Forrest was not prepared to provide a more comprehensive statement in the extensive time that he had to so, was unclear. It lessened the strength of the evidence that he gave.

Alleged exposure to loss of business if payment under the land purchase contract was not effected

325 Mr Forrest's evidence was not free of significant errors both of law and in fact.

326 For example, the reason expressed by Mr Forrest for entering into the Balnarring Motors Deed (expressed in preamble O) was his apprehension that if the balance of the purchase price under the Land Purchase Contract was not paid, the Business Purchase Contract would have been rescinded by Balnarring Motors Pty Ltd.[126]

327 Mr Forrest also gave the following evidence, as one of the reasons why, as the holder in name of the Land Purchase Contract, he chose to assign the purchase obligation to the respondents:

13. Everyone was very aware that because of [Mr Turnley] and [Mr C Turnley's] failure to honour their commitments and provide the funds necessary for settlement of the land I was exposed to be sued by the Bristows for the loss of any and all income and revenue from the business and any losses attributed to the resale of the business and land as I was the legal owner of the business and contracts.

Failure to settle the [back-to-back] contracts also meant the immediate loss of deposit and business too as they were terms contracts, back-to-back and structured that way.

14. In fact [Mr Turnley] and [Mr C Turnley thought it was a great outcome that someone else was going to bail us out and we still [therefore] had the opportunity to get a lease and business. We were getting off lightly considering the potential outcome.[127]

328 I have addressed above the amendments that were made to the Land Purchase Contract and Business Purchase Contract. From the date of the amendment, therefore, it was no longer open to Balnarring Motors to rescind the Business Purchase Contract if the Land Purchase Contract was not also completed. It is therefore incorrect, in my view, to describe the contracts,

from that date, as being "back-to-back", if that expression is taken by Mr Forrest to mean that the completion of one depended upon completion of the other.

329 In fact, the amendments to the Business Purchase Contract and the Land Purchase Contract, neither of which agreements are referred to in the Balnarring Motors Deed, meant that his apprehension was unfounded at law.

330 There is also evidence that Mr Forrest did not in fact believe it to be the case that the Land Purchase Contract and the Business Purchase Contract were

"back-to-back and structured that way" and that, as a consequence he was personally exposed to liability on the Business Purchase Contract if the Land Purchase Contract did not settle. That is, he emailed Mr Gibbs on 17 October 2016 (well after the date of the amendments to the Land Purchase Contract and the Business Purchase Contract):

...[concerning the then proposed settlement of the Business Purchase Contract] my understanding is the settlement of the business [is] not related to having to settle the freehold...

331 Mr Forrest's volunteering of this reason as to why he urgently proceeded to enter into an arrangement with Ms Fraser, evidenced by the Balnarring Motors Deed, is not credible.

Mr Forrest's characterisation of the Business Purchase Agreement

332 A second example of plain error is Mr Forrest's evidence to the effect that the business had never been sold to SGH, leaving it open to him to sell the business to Balnarring Service Centre Pty Ltd, as follows:

For clarity, I believe I did not sell Ms Fraser the stock or the plant and equipment that approx. $66,000 was paid for [by SGH].

I sold her the business that $0 was paid for, as it formed part of the back-to-back contracts according to all the legal advice from both Mr Gibbs and the Bristows' lawyer and the contracts themselves.[128]

I now understand that SGH's purchase of plant and equipment and stock was not the purchase of a business..."[129]

334 I accept Mr Oswald-Jacobs's submission that these assertions appear to be based on a proposition that in the Business Purchase Agreement, the sale price was allocated entirely to stock, plant and equipment (see above), with no amount allocated to goodwill. However, that was only the case prior to the date that the Business Purchase Contract was amended when, as has been seen, an amount of $10,000 was allocated to goodwill. I accept Mr Oswald- Jacobs's further submission that howsoever goodwill may be allocated (if at all) there can be little doubt that, upon its proper construction, the Business Purchase Contract (both before and after the amendment) was exactly as its name suggests. It was therefore fanciful for Mr Forrest to suggest that the business was not acquired by SGH on 2 December 2016.[130]

Mr Forrest's characterisation of the $5,000 deposit

335 A third example of factual error is where Mr Forrest states in his first witness statement:

7. I negotiated the purchase of the service station property and business through a real estate agent, my solicitor David Gibbs and the vendors David Bristow senior and David Bristow Jnr. My wife...paid the initial $5000 deposit.

336 Mr Turnley's statement in reply dated 10 May 2019 states:

The $5000 deposit to which [Mr Forrest] refers...was a deposit paid pursuant to the contract entered into by Forrest for the purchase of [another property at] 10 Stumpy Gully Road, Balnarring. SGH does not allege in this proceeding that it has or is entitled to an interest in 10 Stumpy Gully Road, Balnarring. It does not therefore make any claim in that regard. That is the reason that no loan from [Ms] Myers to SGH for that amount was recorded in the books of SGH...

337 Mr Forrest's evidence in this respect was also contradicted by Mr Blane Paton, the principal of Paton, which form received the deposit of $5,000. Mr Paton's evidence was that the $5,000 payment was made by way of the deposit payable pursuant to the Option Agreement relating to the property at 10 Stumpy Gully Road.[131]

Mr Forrest not informing the Turnleys of his arrangements with Ms Fraser

338 Pursuant to the Balnarring Motors Deed, Mr Forrest agreed to do all those things as may then have been necessary to sell for $1.00 the business to Balnarring Service Centre Pty Ltd.[132] There is no evidence that Mr Forrest told either of his fellow directors of SGH that he had purported to agree to sell the business to another company for $1.00 on or about 28 July 2017, or at all. It is clear from Mr Turnley's evidence, however, that SGH had settled the purchase of the business on 2 December 2016, and had operated it since then.[133] It is also clear from Mr Forrest's evidence that he understood SGH to have been operating the business from that time. He says: "[I]n December 2016...SGH began to trade from the site.[134] Further, the whole tenor of the written communications between Mr Forrest and Mr Turnley and/or Mr C Turnley between, and the plain conduct of Mr Turnley in involving himself in the business, was that SGH owned the business, and expected to continue

to conduct the business for which it had paid from the business's premises which it occupied.

339 Absent adequate proof by the respondents of these matters, at the date of the Balnarring Motors Deed, therefore, Mr Forrest was purporting to sell something which he must have known was not his to sell.

340 The most concerning feature of this case, therefore, is that Mr Forrest was prepared to encourage Ms Fraser in her understanding that both she and he were acquiring the benefits promised by the Balnarring Motors Deed, yet he failed to inform the Turnleys of these purported arrangements. By his conduct, he encouraged the Turnleys, acting reasonably, to believe that SGH had purchased the business and also, by its payment of the land deposit monies, also had an interest in the land when, but without informing them that Mr Forrest was nonetheless quite prepared, if possible, for himself and Ms Myers, together with Ms Fraser, to take those very interests in the land and the business.

Mr Forrest's extraneous assertions, unsupported by evidence

341 Further, in a number of instances either in his written evidence or when in the witness box, Mr Forrest tried to provide commentary (without any supporting evidence) about the credibility and honesty of SGH's lawyers and witnesses, by such comments as:

(a) "this proceeding...is simply a shakedown and an attempt at extorting money and a fishing expedition to try and gather evidence for more

false actions", referring to a related proceeding in the Supreme Court;[135]

(b) "based on my history of dealing with you, your client and your lawyer I wouldn't admit to signing anything without having the right thing to

compare it too";[136]

(c) Yeah Mr Kincaid the only reason I address it is because I've been given documents by these people before...with only the signing page";[137]

(d) "if you've altered it as your client has done in the past";[138]

(e) I don't understand that people could do all this sort of stuff...well, just make up stories afterwards and attach...like, it's very odd...do you know what I mean?";[139] and

(f) SGH having made "$10,000,000 in revenue[,]and profits they made[140]

342 No evidence was produced to support these assertions, plainly intended to attack the credibility of the Turnley interests. The making of unsubstantiated criticisms about the Turnley interests is not the conduct of a witness seeking to place reliable evidence before the Tribunal of facts known to him.

In late July...I could not get the funds we needed to complete the partnership proposal with Ms Fraser so we agreed to rescind [our] rights to the [Fraser/Forrest proposed] partnership verbally and the paperwork was completed later.[141]

344 I consider that there is a question concerning the date that the Balnarring Services Deed was executed. It bears the date "28th July Two Thousand and Seventeen".

345 However on 5 August 2017, Mr Forrest texted Mr Gibbs as follows:

I have spoken to [Ms Fraser] about formalising agreements for Balnarring Motors and she wants to hold off until [she] and I have caught up to discuss and doesn't want to spend any money on that just yet.

346 On 3 October 2017, and following meetings and discussions that Mr Gibbs had had with Mr Forrest and Ms Fraser he wrote as follows:

...Stewart, as the owner of the Balnarring Motors business will be selling it to the company that he thinks is Balnarring Service Centre for

$1.00. Once the identity of that company has been confirmed, we will prepare a (simple) sale agreement[142]

347 Further, on 28 November 2017,[143] Mr Gibbs wrote to Mr Forrest and Ms Fraser in terms that suggest that the drafting of the Balnarring Motors Deed was still the subject of discussions among the proposed parties. It included the following:

There are other emails that passed between the writer and RGM Accountants in relation to structures...with the inference from those being that [Ms Fraser] was buying an equal share in the freehold and the business which is, of course, contrary to the instructions given in the draft Deed.

348 It is noteworthy that, in the letter, Mr Gibbs continued in a cautionary manner:

There is evidence in emails on the file that some of the payments made in respect of either the deposit for the premises or the business were actually made by [Mr Turnley]. Were these payments made by [Mr Forrest, Mr Turnley]or out of the Balnarring Motors Business Account? It may be that the Background paragraphs in the Deed may need to be amended to reflect who made the actual payments and if they were made by [Mr Turnley] the arrangements being made.

349 It would seem, from the contents of the Balnarring Motors Deed, that Mr Gibbs was not subsequently favoured by Mr Forrest with any instructions in regard to Mr Gibbs's expressed premonitions.

350 In the same letter, Mr Gibbs also makes clear that he "[had] not sighted the PPG Unit Trust [Deed] so "is not aware of the date it was created nor the holders of units in it...". These details are of course included in Recital (E) to the Balnarring Motors Deed.

351 It also seems unlikely that both respondents having been incorporated on 27 July 2017, with two of the three shares in Peninsula being held by Mr Forrest beneficially, and given the evidence that Peninsula was incorporated for the purposes of being his entity in the proposed partnership with Ms Fraser,[144] that between that date and the date of settlement, 5 days later, Mr Forrest was suddenly unable to obtain the necessary funding.

352 For these reasons, I reject Mr Forrest's evidence that "in late July...we agreed to rescind [our] rights to the partnership verbally" and Ms Fraser's evidence that Mr Forrest had agreed "both pre and post settlement to transfer to me all shares in [Peninsula].

353 It follows, I find, that the dating of the Balnarring Motors Deed as "28th July Two Thousand and Seventeen" was an attempt by Mr Forrest and Ms Fraser to reconstruct the circumstances applying at the end of July 2017, concerning their then proposed partnership. The fact of the process having been deemed necessary by Mr Forrest, and being irregular business practice, puts in doubt his credibility when giving evidence of facts and circumstances occurring in late July/early August 2017.

354 Mr Forrest signed a supply agreement with Petrogas on or about 9 June 2017. He had received advice from DGA about the agreement in a letter from DGA dated 31 March 2017. That the supply agreement with Petrogas to which that letter refers is an agreement with SGH is evident from the terms of an email Mr Turnley sent to Mr Sando of Petrogas, also copied to Mr Forrest, dated 27 March 2017.

355 Mr Forrest gave evidence that he was required by Petrogas to sign the Guarantee attached to the supply agreement because Petrogas had identified Mr Forrest as the "legal owner of the business and land and contracts".[145] That evidence was contradicted by Mr Sando, a sales executive with Petrogas. Mr Sando's evidence was that Petrogas did not give directions as to which directors of a corporate customer were required to sign a guarantee, and that no direction was given in this instance.[146] Mr Sando also gave evidence that he did not have any discussions with Mr Turnley about who should sign the supply agreement and/or the guarantee.[147]

356 Mr Forrest's evidence was also contradicted by Mr Turnley, whose evidence was that Mr Forrest insisted on signing the Petrogas agreement and the guarantee.[148] It was also put to Mr Turnley un cross-examination that he did not want the exposure to "such an onerous contract".[149] However Mr Turnley had, prior to the execution of the Petrogas supply agreement, signed a credit agreement with Petrogas in which he assumed personal liability,[150] and which was called for during the cross-examination of Mr Sando, and produced by him.[151]

357 The matters that I have summarised have led me to the conclusion that where there is a conflict of evidence between that given by Mr Forrest and that given by the Turnleys, I prefer the evidence of the Turnleys.

Introduction of unidentified investor to the Turnleys

358 I turn now to the substance of the agreement for lease claim made by SGH.

359 SGH alleges that the agreement for lease was entered into on 7 August 2017.

360 For the purpose of considering Mr Turnley's evidence, it is necessary to recall that on 8 June 2017 Mr Forrest in his capacity as a director of SGH signed the Supply Agreement with Petrogas, in the presence of Mr Sando from Petrogas. It provided for:

(a) the supply by Petrogas to SGH of bulk and packaged engine oil for re- sale in the business; and

(a) a supply period from 1 June 2017 to 31 May 2027, and thereafter until either party terminated it by 60 days written notice to the other.

27. In about July 2017, Mr Forrest represented to Mr Turnley that Mr Forrest had identified a person who was willing to also contribute funds for the purchase of the land from Mr Bristow (the "Unknown Investor")

The representation was made during conversations between [Mr C Turnley], Mr Forrest and Mr Turnley in approximately July 2017 whereby Mr Forrest told [Mr C Turnley] and Mr Turnley that he knew a person who was interested in contributing to the purchase of the [land]. Mr Forrest would not disclose to [Mr C Turnley] or Mr Turnley the identity of that person. [Mr C Turnley] and Mr Turnley agreed that the person could contribute to the purchase of the [land] and subsequently be recorded as a registered proprietor of the [land] or, alternatively, a shareholder in any entity that ultimately became the registered proprietor of

the [land], in direct proportion to the value of that person's contribution of funds for the purchase of the [land].

28. By agreement made in approximately July 2017, between [Mr C Turnley], Mr Turnley and Mr Forrest, the parties agreed to vary the terms of the Acquisition Agreement to include the following additional terms-

(a) the parties would permit the Unknown Investor to contribute funds for the purchase of the land from Mr Bristow;

(b) the parties would permit the Unknown Investor to be recorded as registered proprietor of the land or, alternatively, a shareholder in any entity that became the registered proprietor of the land, in direct proportion to the value of the Unknown Investor's contribution of funds for the purchase of the [land]; and

(c) SGH would be recorded as a registered proprietor of the [land] or, alternatively, a shareholder in any entity that ultimately became the registered proprietor of the [land], in direct proportion to the value of the contribution of funds made by SGH for the purchase of the land.

15 By agreement made on or about 7 August 2017 between SGH of the one part, and Doolkoora and PGA of the other part, Doolkoora and PGA agreed to lease the Land to SGH pursuant to certain terms (the "Agreement for Lease").

The Agreement for Lease is partly oral and partly to be implied.

Insofar as it is oral, it is constituted by conversations in early August 2017, between Mr Turnley on behalf of SGH and Mr Forrest on behalf of Doolkoora and PPGA [whose identities were not disclosed by Mr Forrest] whereby Mr Forrest stated to Mr Turnley that the registered proprietors of the [land] would lease the [land] to SGH, for the purpose of operating a petrol station business, for the sum of

$9,166.66 [or $110,000 per annum] + GST per month, for an initial term of three years, with an option of a further two terms of three years each. Mr Turnley stated that SGH agreed to lease the Land on such terms.

Insofar as it is to be implied, it is to be implied by law to the extent necessary to give business efficacy to the agreement.

16. The Agreement for Lease contained the following express terms-

(a) SGH would pay rent to Doolkoora and PPGA in the sum of

(b) the initial term of the lease was three years;

(c) SGH would have the right to exercise two options of extending the term of the lease for a further three years each.

The terms were oral and agreed upon during the conversations referred to in the particulars sub-joined to paragraph 15 herein.

(d) A written lease would be entered into between SGH as lessee on the one hand and the registered proprietor or proprietors of the [land] as lessors on the other...

16A There was an implied term of the Agreement for Lease that the Written Lease would include all such terms and conditions as are usual in leases of premises for use as service stations which sell car and truck fuel and related goods and services to retail customers.

(a) Mr Forrest, in his capacity as a director of [Peninsula]:

(i) directed Mr Turnley, in his capacity as a director of SGH, to pay an amount of $10,083.33 plus GST to Doolkoora and [Peninsula] by way of rent;

(ii) told Mr Turnley that $10,083.33 plus GST [or

$11,091.66] was the amount payable rather than [previously agreed] $9,166.66 + GST [$10,083.33] because [the $10,083.33 plus GST] included outgoings;

(b) [on 7 August 2017] Mr Turnley paid the amount of

$10,083.33 plus GST [or $11,091.66] to Doolkoora and [Peninsula].

17A On 3 September 2017 Mr Forrest informed Mr Turnley that the amount payable to Doolkoora and [Peninsula] by way of rent for the month commencing 1 [September][152] 2017 was $9,166.66 plus GST [or $10,083.33] because that was the actual rent amount which did not include outgoings

17B SGH has since on or about and from 1 September 2017 paid to Doolkoora and [Peninsula] rent of $9,166.66 + GST [or

$10,083.33] on or about the first day of each month.

363 The respondents by paragraph 16 of the FADAC allege that:

(a) on and from settlement of the purchase of the land, SGH alternatively Mr Turnley have occupied the land as a licensee pursuant to a licence granted by the respondents;

(b) monthly payments of $10,083.33 which SGH, alternatively Mr Turnley have paid the respondents are payments of a licence fee, and not rent; and

(c) in effect, insofar as SGH occupied the land under an "agreement to lease", which is not admitted, they did so on the basis of an agreement it was an "agreement whereby they were entitled to occupy the land on a month-to-month basis from on or about 1 September 2017".

364 The respondents by paragraph 21 of the FADAC allege that to the extent that rent was paid by SGH for the month of September 2017, it "was in the context of a month-to-month lease or agreement to lease". Mr Oswald-Jacobs for SGH submitted that, by their references here to an "agreement to lease",

the respondents' position is contradictory. Notwithstanding a criticism that may be made of the equivocal phraseology adopted here by the respondents, particularly having regard to the fact that an agreement to lease is the very substance of the arrangement contended for by SGH, I nevertheless take the respondents' position to be that insofar as there was any agreement by which SGH leased the land, it was in the nature of a month-to-month lease only, and not in the nature of an agreement to execute a lease in favour of SGH in the future.

365 Mr Turnley's witness statement dated 12 April 2019 states:

71. [On 12 May 2017, when I spoke to Mr Forrest about the arrangements for payment of the balance of the $150,000 deposit], Mr Forrest told me that he had been speaking to an investor who would probably be able to finance the balance of the purchase of the [land]. He did not tell me the identity of the investor.

72. On 25 July 2017 [Mr C Turnley] and I met with [Mr Forrest] at the Business premises. [Mr Forrest] confirmed that he had found [an] investor for the balance of the purchase price for the land. [Mr C Turnley] and I agreed with Mr Forrest that the new investor could become a part owner of the land with SGH rather than simply be a secured lender. We also agreed with [Mr Forrest] that SGH would be granted a lease with a term that mirrored the Petrogas supply agreement of 10 years. In the days that followed, I made numerous requests for a copy of the lease (emphasis added).

367 Mr C Turnley's evidence was that although at the time of the preparation of his written evidence he had not recalled having been at the 25 July meeting, by the time that he gave oral evidence in cross-examination, he had remembered that he was there.[153]

368 I find that there was a meeting on 25 July 2017,[154] attended by Mr Turnley, Mr C Turnley and Mr Forrest. I also find from the evidence that Mr Forrest was in no position, on 25 July 2017, to enter into any lease arrangement on behalf of the then unidentified investor,[155] and that what Mr Turnley meant by this passage, as Mr Turnley clarified in giving evidence, is that Mr Forrest took it upon himself to endeavour to obtain the unknown investor's agreement to a lease that mirrored the Petrogas supply agreement of 10 years.[156]

369 I find from Mr Turnley's evidence therefore, that at the meeting on 25 July 2017, he and Mr C Turnley, in their capacity as directors of SGH, agreed with Mr Forrest that:

(a) Mr Forrest should endeavour to obtain a lease from the unidentified investor for a term that mirrored the Petrogas Supply Agreement;[157]

(b) SGH could afford to pay rent of about $110,000 per annum plus GST (or $9,166.66 plus GST per month),[158] but that Mr Forrest said that outgoings would also have to be paid;[159]

(c) that SGH would endeavour to obtain a lease in part by exercising such rights as it was going to have as part owner of the land, and that Mr Forrest would ensure that the new part owner, the unidentified investor, would agree to a lease.[160]

370 On the evening of 25 July 2017, on the same day as his meeting with the Turnleys, Mr Forrest emailed Pearse Morgan (and copied in David Gibbs for his information, but not either of the Turnleys) to the effect that Ms Fraser

required a commercial loan "for the business and the freehold asap after settlement [then anticipated to be Monday 31 July 2017] to reduce the finance rate. The email also stated:

The current operators will be paying a month by month lease of

$110K PA plus outgoings to cover the payments (emphasis added).

371 I find that the reference in Mr Forrest's email to "$110K PA plus outgoings" is consistent with Mr Turnley's evidence concerning the amount of the rent to be paid by SGH, proposed at the meeting that day.

372 Mr Turnley gave evidence that in the days that followed the 25 July 2017 meeting, he made numerous requests for a copy of the lease.[161]

373 On Monday 31 July 2017, Mr Turnley texted Mr Forrest:

Stewie. Did the [purchase of the] Servo [by the unidentified investor] get settled today?

374 Mr Stewart responded by text dated 31 July 2017:

Hi guys spoke to lawyer this afternoon...minor delay, apparently will settle in the morning, will call as soon as I get confirmation cheers

Stewie. did the settlement [go] through this morning? Thanks. Kim.

Hi guys yep settled but haven't heard back officially yet but know it has gone through cheers

377 Mr Turnley gave evidence that he then asked Mr Forrest when SGH could expect to receive a lease.[162]

378 By email dated 5 August 2017 to Mr Gibbs, but again, not copied to Mr Turnley, Mr Forrest wrote:

I have spoken to [Ms Fraser] about formalising agreements for Balnarring Motors and she wants to hold off until [she] and I have caught up to discuss and doesn't want to spend any money on that just yet. I'm happy to wait as she is honest and trustworthy so don't worry about sending any letters out at this point until we follow up. Yes I know!!!

Lets just concentrate on [Gourmet Paddock] arrangement so I can get tidied up ASAP, plus there's a bottle of scotch on it!

379 Early on 7 August 2017, Mr Turnley texted Mr Forrest:

Stewie. Can you give me a ring when you get a chance. We need to organise a Morwell trip & catch up re the next steps at the Servo.

381 Mr Turnley's evidence contained in his witness statement dated 12 April 2019, as to what was said during a telephone call with Mr Forrest allegedly on 7 August 2017 was as follows:

73. ...on 7 August Forrest told me that the private investor who was now part-owner of the land had agreed to a lease on the following terms:

(a) rental of $10,083.33 plus GST per month, which included outgoings and was payable to Gibbs's trust account (emphasis added); and

(b) an initial term of three years with options for two further terms of three years each.

74. I arranged for SGH to make the first rent payment on 7 August 2017 in the amount of $10,083.33 plus GST by electronic funds transfer.

382 The amount of $10,083.33 plus GST is plainly more than the $10,083.33 including GST (or $9,166.66 plus GST, being $110,000 plus GST per annum) that Mr Turnley says was the amount discussed with Mr Forrest at their meeting on 25 July 2017. The difference is, however, explicable by the above evidence of Mr Turnley (in support of what is pleaded in paragraph 17 of the TFAPC) to the effect that when Mr Forrest conveyed the private investor's rent proposal of $10,083.33 plus GST, he also told Mr Turnley that it included an amount for outgoings.[163]

383 I find that Mr Forrest indicated to Mr Turnley at their meeting on 25 July 2017, to which Mr Turnley on behalf of SGH agreed, that outgoings would be payable in addition to the $110,000 per annum plus GST then discussed.

384 It is not in dispute that on 7 August 2017, Mr Turnley remitted to the trust account $11,091.66 (being $10,083.33 plus GST).[164]

385 On 24 August 2017, Mr Forrest texted Mr Turnley:

Hi mate do you have time to catch up on Saturday? I'm trying to get the lease finalised for the servo and sort through a few things for [Gourmet Paddock], BAS etc.

(a) Mr Turnley asked Mr Forrest by text message at 10:53am to send him "a copy of the invoice showing the rent figure I need to be paying this month for the Servo"

(b) Mr Forrest replied at 1053am: "Will ask for it".

(c) Mr Forrest texted Mr Turnley at 12:13pm: "...as discussed the amount [payable on 1 September 2017] was $10,083.33 [that is to say,

$9,166.67 plus GST] as there was no outgoing charge this month"

(d) Mr Turnley texted Mr Forrest at 11:11 pm: "Stewart, I have made the rent payment"

387 I find from the payment made by SGH on 7 August 2017, and the content of the communications between Mr Turnley and Mr Forrest on 3 September 2017 that:

(a) SGH agreed to pay outgoings, in addition to rent;[165]

(b) at some point between 10:53am and 12:13pm on 3 September 2017, Mr Turnley and Mr Forrest had a discussion to the effect that there were no outgoings payable for the month of September 2017, and that the amount payable by SGH was therefore $9,166.66 plus GST, or

$10,083.33 including GST;

(c) consequently, the rent payable, net of outgoings was $9,166.67; and

(d) that to the extent that SGH has not paid outgoings since 1 September 2017, they will need to be paid by SGH.

388 Mr Turnley texted Mr Forrest on 1 October 2017:

I am planning to pay the rent for the Servo. Is it the $9,166.66 as per last month? How is the lease agreement going?

Hi mate yes $9,166.66 plus GST I have not been told about outgoings yet, lease is being sorted. Will call you a bit later. Cheers.

390 For completeness, it was only on 19 December 2017 that DGA acting on behalf of Doolkoora (but not Peninsula) wrote to Mr Turnley:

We are acting on behalf of Doolkoora Pty Ltd, the owner of the freehold property on which the Balnarring Motors business is conducted. Doolkoora, as well, owns the Balnarring Motors business itself.

As you are fully aware, there is no Lease in existence in relation to the premises or the business. Our client wishes to formalise this and offers you a Lease on the following terms, such lease to commence on the 1st January 2018.

10% of gross turnover in excess of $1.3 million per annum to be calculated and paid quarterly

5% per annum on the anniversary of the commencement date and to market on renewal.

The Lease is conditional upon you or an associated entity entering into a contract to purchase the Balnarring Motors business from our client for the sum of $250,000 (plus GST if applicable).

391 Mr Turnley's evidence of his reaction to the letter from DGA dated 19 December 2017 was:

[T]he letter proposed that SGH enter into a lease on terms quite different to those which had been discussed and agreed with [Mr] Forrest in August 2017. The terms proposed were quite unworkable and would have effectively made the Business unprofitable.[166]

The alleged agreement for lease-Mr Forrest's evidence

392 Mr Forrest's first statement filed 3 May 2019 does not refer to the material in Mr Turnley's witness statement dated 12 April 2019 concerning the claimed agreement for lease entered into with Mr Forrest on behalf of the Fraser interests. It states:

19. Kim and Craig asked me to try and get a lease for SGH and I did.

20. Ms Fraser offered a lease to [SGH], Kim and Craig Turnley ignored the offer and did not attempt to negotiate any terms on behalf of the company.

393 In his third statement filed 20 May 2019, having referred to the alleged

relinquishment agreement in "late June/early July 2017" whereby, Mr Forrest alleges, the Turnleys had agreed to forego any interest or rights to the land

and the business and occupation of the sites", Mr Forrest stated:

8...Ms Fraser agreed to leave SGH in occupation on a month-to-month verbal agreement until she decided what terms she wanted to propose for a lease. I asked for SGH to remain on a month-to-

month occupation with payment of the equivalent of $110k pa...I reconfirmed these agreements in several conversations and meetings in mid-July with everyone again.

394 In cross-examination, Mr Forrest confirmed that evidence, and in particular said:

I don't know if it was early [July] when I asked her or mid or late exactly when I asked her for the month-to-month. What I can confirm is that on 25 July, she confirmed that they could be there on a month-to- month occupation.[167]

395 A little later in cross-examination, it was put to Mr Forrest that on or about 7 August 2017, he told Mr Turnley that the landlords had agreed to a lease of the premises on the basis of a rental of $9,166.66 per month plus GST and Mr Forrest responded:

I confirmed the amount of money that Ms Fraser wanted to be paid on a monthly basis for the month-to-month occupation. So I didn't say that the landlord had confirmed the lease.[168]

You said to Mr Turnley that the lease would be a three year term and the two three-options (sic), didn't you?

No I didn't. Not that-I can't see anything anywhere that says I had told [Mr Turnley] at that time, or any other time, that he will have a three- by-three lease.[169]

The alleged agreement for lease-Ms Fraser's evidence

398 In her statement dated 18 April 2019, Ms Fraser states:

65. Stewart Forrest ceased to be a director of SGH in October 2017, [after I settled on the purchase of the land] and post the verbal agreement I made with him that SGH could continue to occupy the suite on a month-to-month occupation until the terms of a lease were agreed if they paid [$10,083.33] plus GST plus outgoings to Doolkoora Pty Ltd

399 By her further statement dated December 2019, Ms Fraser states:

6(c) In response to [Mr Forrest's] request that he and his partners be allowed to continue to stay in the premises and conduct the Balnarring Motors business I said I was prepared to leave them in there until I returned from overseas and had time to seek legal and accounting advice. Given I had been told there was no lease in place at that time and they were not paying rent I told [Mr Forrest] I would allow a month-by-month lease with monthly rental payments calculated on an annual rental of $110,000 per annum. Payments were to be made to D Gibbs Lawyers.

10 The only instruction I gave [Mr Forrest] in relation to he and his partners occupying the [land] was that [described in paragraph 6(c], namely I told him to pass on to them I would allow them to remain in occupation and conduct the business on a month-to- month arrangement until I had time to consider the matter further. At no stage did I have any discussion with him along the lines of the agreement for lease referred to in [SGH's] Points of Claim and Witness Statements.

Discussion and conclusion-whether there was an agreement for lease

400 There is a plain conflict between the evidence given by Ms Fraser as to what she instructed Mr Forrest to say to the Turnley interests/SGH concerning the basis of SGH's occupation of the land from 1 August 2017, and what Mr Turnley says Mr Forrest told him on 7 August 2017.

401 Mr Kewley submitted that the only written evidence of any agreement between Mr Forrest and Mr Turnley concerning the basis on which SGH occupied or was to continue to occupy the land during the period from July 2017 to 19 December 2017 (when DGA on behalf of the respondents proposed terms for a lease) was the email from Mr Forrest to Pearse Morgan dated 25 July 2017, referring to a "month by month lease". He submitted

that it supports the respondents' submission that there was never any

intention on the part of Mr Forrest to seek Ms Fraser's agreement to a lease for a term of years, making it less likely that a lease on such a basis would ever have been subsequently offered to Mr Turnley on behalf of SGH. It should therefore be given particular weight when assessing the evidence, he contended, particularly when the email was written contemporaneously with the meeting that occurred on 25 July 2017.

402 I observe that as a piece of evidence, that email dated 25 July 2017 is of the same nature as the Balnarring Motors Deed, on which I have made certain observations. That is to say, it purports to convey a statement of fact concerning the then expectation of "the current operators" in relation to the contractual basis on which they wished to continue to occupy the premises, but was not copied to those current operators, who I find were the Turnley interests and/or SGH. Similarly, the Balnarring Motors Deed also purported to express statements of fact, being the alleged condition precedent and the alleged SGH/Forrest relinquishment agreement; both of which plainly concerned the interests of the Turnleys and/or SGH, but which also was not copied to them. Given these two occasions on which Mr Forrest did not copy in the Turnleys and/or SGH in respect of his statements about their interests to third parties, I am therefore unable to give primacy to the email for which Mr Kewley contended, when assessing the totality of the evidence.

403 Mr Kewley's further contention is that at no time between 7 August 2017 and the following year, when it first appeared in the original Points of Claim dated 24 April 2018, did Mr Turnley tell anyone of the alleged agreement for lease. In particular, he contended:

(a) Mr Turnley's evidence suggests that he did not tell Mr C Turnley of the conversation on 7 August 2017;

(b) the Tribunal should find from the evidence of Mr C Turnley that on or shortly after 7 August 2017, Mr Turnley did not tell Mr C Turnley about the alleged three year term of the agreement for lease that he had secured with the respondents; that he simply told Mr C Turnley about the amount of the rent that was to be paid for August 2017, therefore making a month-to-month lease agreement more likely;

(c) there is no evidence that Mr Turnley told other members of his family of the alleged agreement for lease;

(d) Mr Turnley's response to the letter from DGA dated 19 December 2017 (see above) was devoid of any reference to an agreement for lease reached with SGH on 7 August 2017 or at any time;

(e) Mr Turnley's response dated 11 January 2018 to a further notice to quit dated 9 January 2018 served in CITEK by DGA was also devoid of any reference to an agreement for lease reached with SGH on 7 August 2017 or at any time;

(f) Mr Turnley conceded in cross-examination that when he met with his lawyer on about 9 January 2018 to discuss the notice to quit dated 9 January 2018, the alleged agreement for lease was "not discussed";

(g) on 24 January 2018, Mr Turnley's solicitor lodged a caveat on behalf of Mr Turnley claiming as "Interest as Chargee", suggesting that Mr

Turnley's instructions to his solicitor were not only insufficient but inaccurate.

404 I find that Mr C Turnley gave evidence in cross-examination, which I accept, that Mr Turnley told him that the new investor had agreed to a lease term that mirrored the Petrogas Supply Agreement.[170]

405 With respect to Mr Turnley failing to mention the claimed agreement for lease upon receipt of DGA's letter dated 19 December 2017, I accept Mr Turnley's evidence that he was thrown into confusion at the time[171], and at

the forefront of his mind, as appears from his written response, was to try to ascertain for whom DGA was acting,[172] since he had previously considered that DGA was acting for SGH. I also find that upon receipt from DGA of the notice to quit, his concern that DGA was conflicted only increased.[173] I am not prepared to find on this evidence that in the circumstances a person in the position of Mr Turnley, could reasonably have been expected to have made contentions, in immediate reply to DGA, concerning the alleged agreement for lease.

406 I also do not consider that it is reasonably open on the evidence to find that Mr Turnley did not until "April 2018" inform his solicitor about the terms of the proposed lease that he had agreed with Mr Forrest on 7 August 2017.

407 Mr Kewley also submitted that the retraction on 14 February 2020 by Mr Turnley of his evidence he gave on 13 February 2020 that his diary entry:

17 August Phone call from [Mr Forrest] in the morning. $11.091.66 per cent GST, 10 percent outgoing, payable to David Gibbs, Balnarring Motors. Asked if lease would be in line with Petrogas. He said lease would be 3 x 3 x 3.

was contemporaneous with the date to which it refers, but was in fact prepared much later as part of his preparation for the litigation and the hearing, casts doubt on the reliability of his evidence in respect of the claimed agreement for lease. I have already described the circumstances of Mr Turnley's retraction of his evidence, and have found that it does not provides a reasonable basis for a submission that Mr Turnley lacks credibility in respect of the issue, or at all.

408 Mr Oswald-Jacobs submitted that the uncontradicted evidence of Mr Turnley:

(a) that "in the days that followed [the meeting on 25 July 2017 he] made numerous requests for a copy of the lease"; and

(b) that on 1 August 2017, after Mr Forrest had informed him that the purchase of the land had settled, he asked Mr Forrest "when [SGH] could expect to receive a lease"

supports the proposition that the tenor of the discussions between Mr Forrest and Mr Turnley from 25 July 2017 was that an agreement for lease was then contemplated by SGH, and not the month-to-month arrangement described by Mr Forrest in his email to Pearse Morgan dated 25 July 2017. Mr Oswald- Jacobs submitted that if Mr Forrest had told Mr Turnley on 25 July 2017 that SGH was going to be a monthly tenant only, and that the new investor would in due course consider what lease terms would be offered, it is unlikely that Mr Turnley would have asked for a lease on the day of settlement.

409 I consider that there are features of the written communications between Mr Turnley and Mr Forrest occurring after 7 August 2017 as, in my view, provide greater support for the proposition that on 7 August 2017 an agreement to lease, as opposed to a monthly tenancy, was entered into between SGH and the respondents.

410 First, on 24 August 2017, Mr Forrest texted Mr Turnley:

I am trying to get the lease finalised for the servo (emphasis added).

411 On 1 October 2017, Mr Turnley texted Mr Forrest:

How is the lease agreement going (emphasis added)

413 In my view, these messages are not consistent with there being an arrangement that was still in a state of negotiation. I consider that they are in terms consistent with the evidence of Mr Turnley that an agreement was made between himself and Mr Forrest on 7 August 2017 that a lease be entered between SGH and the freehold owner(s) on certain terms. It is unlikely, in my view, and I find that Mr Turnley was calling on documentation as may have simply recorded the terms of a month-to-month tenancy, as Mr Forrest contended was the agreed arrangement, but was referring to the production for execution by SGH and the respondents of a written lease that would include the terms agreed on 7 August 2017.

414 Secondly, and most significantly in my view, I have referred to the changeover of the signage and branding, and the upgrade of the service station that went ahead in the second half of August 2017, with the knowledge of Mr Forrest.

415 In his written evidence, Mr Turnley stated, in particular:

62 [I]n August 2017, work commenced on changeover of the branding of the [business] from being a Caltex service station to being a Mobil service station. SGH invested around $20,000 in new concrete and upgrades of the forecourt and the shop area with the knowledge of [Mr] Forrest. He knew about the upgrades because they were discussed in meetings at that time and because he visited the [business] premises from time to time.

63. All the upgrades were done following discussions between [Mr]Forrest, me and [Mr C Turnley] and on the understanding that SGH would be entering into a lease with the owners of the land, of which SGH would be one, having contributed $150,000 to its purchase.

64 On 11 August 2017 SGH replaced the Transhost point of sale software system in the [business] at a cost of $17,603 plus GST. [Mr C Turnley] and I made [Mr] Forrest aware of this issue.

416 The fact that Mr Forrest was aware of these matters was not contradicted by the respondents.

417 It is clear from the evidence that the upgrade work happened in the second half of August 2017.[174]174 I find that it is most unlikely that SGH would not have proceeded with the respective investments of $20,000 and $16,603 had it not secured the agreement of Mr Forrest on behalf of the respondents to a lease for a term of years, with renewals, as contended by SGH. I accept Mr Oswald-Jacobs's submission that it is inherently unlikely that SGH would have proceeded with those investments if it were a monthly tenant only.

418 Thirdly, I am more inclined to accept the evidence of Mr Turnley in respect of the claimed agreement for lease. I have provided an account of the reasons why, in the case of a conflict between the evidence given by Mr Turnley and Mr Forrest, as there is in respect of the claimed agreement for lease, why I prefer the evidence of Mr Turnley.

419 Fourthly, I consider that the existence of the Petrogas agreement, known to the parties on 7 August 2017, and allowing for the supply term that it did, makes more likely that Mr Turnley was seeking a lease for a term of years, rather than being content to accept a month-to-month lease.

420 Having weighed all the evidence in the balance, for the three reasons I have identified, I find that the claimed agreement for lease proved by SGH on the balance of probabilities.

421 I also do not consider that Mr Turnley's not following up matters further with Mr Forrest until Mr Turnley's text to Mr Forrest dated 1 October 2017 detracts from the proposition that on 7 August 2017 Mr Turnley considered that SGH had an agreement for lease with the freehold owner(s). In particular, Mr Turnley had been reassured by Mr Forrest on 24 August 2017 that the lease was being "finalised", and on 2 October 2017, Mr Forrest

informed Mr Turnley by text message that "the lease is being sorted".

422 Similarly, Mr Turnley did not take any steps after settlement also to ensure that SGH had become a part owner of the land, because Mr Forest was organising that, and that he trusted Mr Forrest.[175]175

423 Mr Kewley also contended that Mr Forrest did not tell Mr Gibbs (at a meeting with Mr Gibbs on 4 August 2017) about any agreement for lease of the type contended for by SGH, nor did Mr Forrest inform Ms Fraser of such. I find this to be explicable: on SGH's case (and this applies in relation to the alleged condition precedent, and alleged relinquishment agreement by SGH), Mr Forrest was encouraging Mr Turnley reasonably to believe that a certain state of affairs existed, but that inexplicably he was conveying a different message to Ms Fraser.

Terms of the agreement for lease-were they sufficiently certain?

424 Before I am able to find that there was an enforceable agreement for lease, as contended by SGH, I must find that the alleged express terms, together with such further terms as can be implied, were insufficiently certain as to make the alleged agreement for lease enforceable at law.

425 An agreement between two parties to enter into a written lease is enforceable; a tenant holding under such an agreement is, generally speaking, in the same position as if the lease had been executed[176]

426 A court will treat "an agreement for lease as an equitable lease and, as between the parties, as the equivalent of a lease at law".[177]

427 For an agreement for lease to be enforceable, it is necessary only that the basic or essential terms have been agreed upon:

(a) for example "the duration of the lease, its date of commencement, the parties to it and the subject matter of the demise..."[178]

(b) "[I]t is settled beyond question that, in order for there to be a valid agreement for lease, the essentials are that there shall be determined not only the parties, the property, the length of term and the rent, but also

the date of its commencement"[179]

428 Mr Oswald-Jacobs submitted that this is a case that falls within the first class of case identified in Masters v Cameron,[180] that is, "one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect"[181]

429 Mr Oswald-Jacobs relies on a retail lease dispute in the Tribunal Australvic Finance Pty Ltd v Elcheikh,[182] in which Senior Member Vassie found that a lease by parol had been created, by reason of his finding that essential terms had been agreed between the parties, even if other terms and conditions had been left to be set out in a formal written lease to be entered into between the parties subsequently.

430 Significantly, Mr Oswald-Jacobs contended, Senior Member Vassie found that:

(a) included in the lease by parol were "terms and conditions set out in any standard from lease commonly used by conveyancing solicitors in

Victoria...insofar as they were not inconsistent with any of the terms that he found had been agreed at the date of creation[183]or, significantly, agreed between the parties by their conduct subsequent to the date of creation;

(b) the parties "contemplated and intended that there should be a formal instrument of lease prepared by solicitors and executed by each of them"[184]

(c) as at the date of creation of the lease by parol, no specific date had been "specifically agreed upon". In the circumstances of the case, the Senior Member was content to accept that the commencement date was the date of the tender and acceptance of a cheque for (part of) the security deposit;[185]

(d) the parol lease was created despite the fact that: the parties had not

adverted to the tenant's obligations being personally guaranteed by its director;[186] there had been no discussion between the parties about any date by which agreed options should be exercised (and he cited two decisions in support of that finding); and there was no express agreement as to whether the tenant would pay GST on the rent or outgoings;[187] and

(e) the case fell within the first class of case identified in Masters v Cameron

431 In that case, Mr Oswald-Jacobs contended, Senior Member Vassie found that it was an implied term of the lease by parol that it would include "all of the terms and conditions set out in any standard for lease commonly used by conveyancing solicitors in Victoria in 2008" and, relying on that proposition he contends for an order in this case that the respondents be ordered to enter into should be in the form of the standard form Law Institute of Victoria Lease of Real Estate with Guarantee & Indemnity (Commercial Property). I observe here that the learned Senior Member may have been assisted in reaching his conclusion in Australvic that:

...The parties contemplated and intended that there should be a formal instrument of lease prepared by solicitors and executed by each of them [and that] [by] their conduct they were content with the standard form which the solicitors used

by his finding that a draft lease prepared by the landlord's lawyers, and provided to the proposed tenant was in the Law Institute of Victoria standard from Lease of Real Estate (October 2007 Revision), the adoption of which was not a matter of dispute between the parties. No such finding is available in this case.

432 In other words, Mr Oswald-Jacobs contended, "all the terms" referred to in the passage from Masters v Cameron cited above does not mean every single terms and condition of a lease. They mean all the essential terms: Brunswick Development Pty Ltd v Shock Record Pty Ltd.[188] In that case, the Court held that a binding agreement arose when all the essential matters had been settled, and also that that contract fell into the first category of Masters v Cameron.

433 Mr Kewley for the respondents relied on the proposition that an agreement for lease, in order to be enforceable, must define the parties, the demised premises, the rent (if any), and the commencement and the duration of the term.[189]

434 He submits that the totality of the evidence is such as to indicate:

(a) no date from which the term was to commence was discussed or agreed, particularly as SGH on 7 August 2017 already occupied the land as a "monthly licensee";

(b) neither of the Turnleys was aware of the identity of the landlord;

(c) Ms Fraser and/or the respondents were unaware of the identity of the tenant;

(d) that whatever may be found was the content of the discussions on 7 August 2019, there is no evidence that the following details of any agreement for lease alternatively lease by parol were agreed:

(i) the manner in which the options may be exercised;

(ii) the payment of outgoings;

(iii) arrangements with regard to insurance of the property;

(iv) the 21 items set out in the schedule to the Law Institute of Victoria lease (other than details of premises, landlord, tenant, rent that SGH contended were known).

435 It is clear from the evidence that on 7 August 2017, the respondents were entitled to be registered as proprietors of the land. Therefore, in respect of any lease which they entered (whether monthly or otherwise), they were the landlords. Whether there was a third co-owner in equity is of course before the Tribunal for determination.

436 It is also clear from the evidence that the respondent agreed to SGH being in possession of the land as lessee.

437 I find below that they were parties to an agreement for lease by reason of the facts that Mr Forrest was a director of the second respondent, and had the ostensible authority of the first respondent to enter into an agreement on its behalf.

438 It is common ground that the premises which are the subject of this dispute are the service station at 2994 Frankston-Flinders Road, Balnarring, Victoria.

439 It is common ground that the land is used as a service station and mechanics' workshop.[190]

440 It is clear from the evidence that the rent agreed to be paid was $9,166.67 plus GST per month.

441 As regards outgoings, I have found from the evidence that:

(a) they would be payable in addition to rent;

(b) they were paid in addition to rent for the month of August 2017

(c) SGH pays water rates, council rates and insurance in respect of the land; and

(d) the respondents make no further claims against the SGH for payment of any invoices other than outgoings.

442 Concerning the agreed commencement date of the proposed lease, given that settlement of the purchase of the land by the respondents was effected on 1 August 2017, and that the rent has been paid by SGH to the respondents (or at their direction) on about the first day of the month since September 2017, the Tribunal can infer, and I find that the payment made to the trust account of DGA on 7 August 2017 included the rent payment for the whole of August 2017. I find from the conduct of the parties that it was a term of the agreement for lease on 7 August 2017 that the lease would commence on 1 August 2017.

443 I find that the duration agreed on 7 August 2017 was 3 years, with 2 options of three years each.

444 A term will be implied by fact[191]that the rent be increased in line with the CPI at the commencement of each new year of the term and that rent reviews be conducted to market at the commencement of each new term (as supplemented by the provisions of the RLA).

445 It is not an essential term of an agreement for lease, in my consideration that a director's guarantee must have formed one of the terms. SGH has agreed to provide one, however, and that is why it is ordered.

Whether the respondents bound as unidentified principals

446 It should also be noted that at the time of his meeting with the Turnleys on 25 July 2017, Mr Forrest was a director of SGH (which directorship did not terminate until 1 September 2017).

447 Mr Forrest had also become a director of Peninsula, the second respondent on 27 July 2017.

(a) from 25 July 2017 Mr Forrest was acting as an agent for an unidentified principal with the ostensible authority of Ms Fraser and/or her corporate vehicle Doolkoora, the identities of which he had then not shared with the Turnleys; and

(b) from 27 July 2017, Mr Forrest was also acting as an agent of Peninsula.

Apparent, or ostensible, authority is "the authority of an agent as it appears to others" [footnoted]: under the doctrine of apparent authority the principal may be bound to third parties because the agent appeared to have authority, though as between principal and agent there was no such authority granted and the normal consequences of such authority did not arise...[192]

450 SGH submitted that Mr Forrest had the ostensible authority of Doolkoora to enter into the agreement for lease with SGH.

451 SGH submitted that the ostensible authority of an agent for a principal can arise:

(a) "where the principal, by words or conduct, represents that the agent has the requisite actual authority, and the party dealing with the agent enters into a contract in reliance on that representation"[193]; and

(b) When a principal permits an agent to act in a certain way, and that the "principal's conduct is to be assessed as a whole and in its totality",[194] being a case involving an intermediary who was found to have ostensible authority in which the principal was found not to have restricted that person's dealing with a third party.

58. ...the foundation of ostensible authority is the representation of

the principal...[and] though a communication is made directly (or immediately) by the agent, it may be inferred that the representation is that of the principal, arising from his conduct. As explained by Lord Pearson in _Hely-Hutchinson v Brayhead[195]_at 593:

That may be shown by inference from the conduct of [the principal] by, for instance, placing the agent in a position where he can hold himself out as their agent and acquiescing in his activities, so that it can be said they have in effect caused the representation to be made. They are responsible for it and, in the contemplation of law, they are to be taken as having made the representation to the outside contractor.

As expressed by the High Court of Australia, in Pacific Carriers Limited v BNP Paribas:[196]

The holding out might result from permitting a person to act in a certain manner without taking proper safeguards against misrepresentation.

59. Ostensible authority may also be seen as an aspect of risk allocation. In Gurtner v Beaton[197], Neill LJ observed:

The development of the doctrine has been based in part upon the principle that where the Court has to decide which of two innocent parties is to suffer for the wrongdoing of a third party the Court will incline towards placing the burden on the party who was responsible for putting the wrongdoer in the position in which he could commit the wrong.

453 Further principles concerning the ostensible authority of an agent to bind the principal in its relationship with a third party are as follows:

(a) the fact that an agent acts for his own benefit in its dealings with a third party, against the interests of his principal, and without the authority of his principal to do so, will not relieve the principal of liability, if in fact the agent's act was in other respects within the scope of his apparent authority;[198]

(b) this rule is not confined to a case of a contract made by an agent. It is a well-established principle that the scope of the agent's authority is applicable to where a representation affecting the principal's interests is made by an agent to a third party, and no contract is made;[199]

(c) a third party may have notice that the agent has no authority to make the contract or make the representation, either because the agent tells him, or the circumstances under which the contract or representation is made are such as to show that the agent had no authority. In either case, the agent is acting beyond the scope of his authority, and the third party "knows" it;[200]

(d) the court may therefore infer from the circumstances or the nature of the transaction that the third party must have known (or had notice) of the principal's interests (that is to say, that the agent did not have authority in the circumstances to enter into the contract, or make the representation), and was therefore acting on his own behalf, and not on behalf of the principal);[201]

(e) reliance on a person as having the ostensible authority to act for a principal must be reasonable;[202]

(f) notwithstanding the principle at sub-paragraph (a) above, the fact that an agent's acts are manifestly for his own benefit may amount to such notice;[203]

(g) the matters available for consideration naturally extend to the knowledge of the third party concerning the circumstances of the principal;

(h) the court may not only infer from the circumstances that the third party must have known of the principal's interest, or at least must have been suspicious to the extent that further enquiries would have been appropriate in the context;[204]204

454 As a director and sole shareholder of Peninsula on 7 August 2017, I find that Mr Forrest clearly had authority to bind it with respect to the agreement for lease.

455 Mr Turnley's evidence was that on 7 August 2017, Mr Forrest informed him that the private investor who was now part owner of the land had agreed to lease the land to SGH for a rental of $10,083.33 plus GST per month, which included outgoings, and for an initial term of three years with options of two further terms of three years each.

456 Mr Forrest's evidence was that he told Mr Turnley on that day "the amount of money that Ms Fraser wanted to be paid". Clearly, Mr Forrest thereby

made it clear (even if he did not expressly mention Ms Fraser's name, as I find to be the case) that he was negotiating as agent on behalf of the new owners. This is also made likely by the evidence of Ms Fraser who stated

that she had "instructed" Mr Forrest to speak to Mr Forrest's "partners".[205]

457 I find that SGH paid $10,083.33 in consequence of the conversation that he had with Mr Forrest that day.

458 In informing Mr Turnley on 7 August 2017 of the new owners' expectations concerning the basis of SGH's occupation, I find that Mr Turnley understood Mr Forrest to be representing the respondents, which was an objectively reasonable conclusion for Mr Turnley to draw in the circumstances.

459 In particular, I find that Mr Turnley reasonably inferred that the communication by Mr Forrest was made on behalf of Doolkoora, arising from Ms Fraser's conduct in:

(a) using Mr Forrest as the only point of contact between Doolkoora and SGH/the other directors of SGH in relation to the terms on which SGH would be allowed to remain on the land after settlement, including her expectation that SGH would only be granted a month-to-month lease;[206]

(b) choosing not to disclose her identity, or the identity of Doolkoora, to Mr Forrest's "partners"[207] (which the Turnleys "respected"[208]), with whom she was aware Mr Forrest was negotiating on behalf of the new owners;

(c) choosing not to meet with Mr Forrest's "partners"[209]; and

(d) "instructing" Mr Forrest as to what to say to them[210]

Ms Fraser in her capacity as the director of Doolkoora represented to SGH

and Mr Forrest's "partners" (being the majority of the directors of SGH) that Mr Forrest could speak for her and/or any entity that she controlled.

460 I find that Ms Fraser therefore clothed Mr Forrest with the authority to represent her and/or Doolkoora as an identified principal. She was responsible for putting Mr Forrest in the position where Mr Forrest could, as I have found, enter into an agreement for lease on behalf of the respondents within the scope of his ostensible authority, and notwithstanding that, on her own evidence, it was contrary to the instructions that she gave to Mr Forrest.

461 With reference to the above general propositions of law, in which a third party will not be entitled to rely on the ostensible authority of an agent, I find that there was nothing in the circumstances that from which SGH should have inferred that Mr Forrest did not have the requisite authority to enter into an agreement for lease on behalf of the respondents.

462 It follows that I reject the submissions made on behalf of the respondents that on 7 August 2017 Mr Forrest was not :

(a) acting as an agent for an unidentified principal Peninsula (of which he was a director at the time);

(b) also acting for an unidentified principal, Doolkoora; and

(c) by reason of being a director of SGH, and the "front man" on behalf of SGH in negotiating with the unidentified principal, not also an agent of the respondents, and having their ostensible authority to convey their purported instructions to SGH.

463 I accept the evidence of Mr Turnley as to the content of his conversation with Mr Forrest on 7 August 2017, and that Mr Forrest was then representing both respondents. I find that in the circumstances, a reasonable person in Mr

Turnley's position would have understood that Mr Forrest was conveying those terms on behalf of the new investor (but then unidentified), who had clothed Mr Forrest with the authority to be their representative, and Mr Turnley was therefore entitled to rely on that offer as having come from the new investor.

464 I find that Mr Forrest's communication of those terms constituted an offer by the new investor which was immediately accepted by SGH by payment of the amount specified, thereby concluding an agreement for lease.

Instruments Act 1926-whether the agreement for lease cannot be enforced by SGH

465 The fact that an agreement for lease is not in writing does not make it illegal, invalid or unenforceable.[211]211

466 As I have previously indicated, Mr Kewley submitted by his closing submissions that SGH's claim in respect of the agreement for lease must fail because there is no evidence that the alleged agreement for lease, or a sufficient memorandum or note of it, has been signed by the respondents or by a person lawfully authorised in writing by the respondents to sign such an agreement.

467 Section 126 of the Instruments Act 1958 (Vic) provides:

An action must not be brought to charge a person upon a special promise to answer for the debts , default or miscarriage of another person or upon a contract for the sale or other disposition of an interest in land unless the agreement upon which the action is brought, or memorandum or note of the agreement, is in writing signed by the person to be charged or by a person lawfully authorised in writing by that person to sign such an agreement, memorandum or note.

468 That section applies to agreements to lease, and not leases.[212]

469 By his reply submissions, Mr Oswald-Jacobs submitted (and I so find) that the provisions of the Instruments Act 1958 (Vic) were never raised as a defence to SGH's claim that an agreement for lease was made between the parties. He submitted that the defence cannot now be raised and relied on at this stage of the proceeding.

470 A party seeking to enforce an agreement for lease is entitled to rely on alleged acts of part performance in order to claim specific performance of an agreement for lease, where there has been non-compliance with s 126 of the Instruments Act 1958 (Vic). Mr Oswald-Jacobs contended that had the defence based on s 126 of the Instruments Act 1958 (Vic) been raised_,_ he would have adduced evidence of part performance of the agreement for lease, and/or matters which would give rise to an estoppel, the nature of which he has described in his reply submissions.

471 I find for the reasons advanced by Mr Oswald-Jacobs that it is not open to the respondents to rely on s 126 of the Instruments Act 1958 (Vic).

472 It follows from my finding that s 91 of the Retail Leases Act 2003 gives a power to the Tribunal to order relief in the nature of specific performance, it may also consider whether there have been acts of part performance, usually relied on in aid of the equitable remedy of specific performance, in respect of a claimed agreement for lease.

473 If I am incorrect in refusing to consider the respondents' defence in reliance on Section 126 of the Instruments Act 1958 (Vic), I also find that that:

(a) Continuance of possession of the land by SGH from 7 August 2017 on new and different terms in regard to the payment of rent (as I have found) to those on which SGH had occupied the land from 2 December 2016;[213] and

(b) the upgrade by SGH of the forecourt of the service station in the second half of August 2017

are unequivocally, and in their own nature, referrable to the agreement for lease as alleged, as to constitute sufficient acts of part performance.[214]

474 I dismiss the respondents' submission that the claim on the agreement to lease must fail for want of compliance with the Instruments Act 1958 (Vic).

475 In summary, I find that there was an enforceable agreement for lease between SGH and the respondents.

476 Although the Tribunal has no general equitable jurisdiction, and has not been given an express power in terms to order specific performance of an agreement to lease,[215] I am satisfied that the Tribunal has, in addition to granting a mandatory injunction, the power to make an order in the nature of specific performance by ordering a party to enter into a lease incorporating such essential terms as may have been proved by way of agreement for lease,[216] by reason of s 91 of the Retail Leases Act 2003. It provides:

(1) The Tribunal may , in a proceeding under this Part, make one or more orders-

(a) requiring a party to do, or not to do, anything...[217]

477 The question also arises whether, having found there to be an agreement for lease on the above terms, SGH failed to exercise the claimed first three-year option from 7 August 2020.

478 In particular, by their final submissions, the respondents submit that SGH failed by its letter to the respondents' solicitor dated 7 August 2020 effectively to exercise its option.

479 On 21 September 2020, during the period that the hearing was in adjournment prior to its resumption on 18 November 2020, the respondents filed a strike-out application against SGH under s 75 of the Victorian Civil and Administrative Tribunal Act 1998 in respect of SGH's claim under the agreement for lease. This was one of the two grounds relied on by the respondents.

480 I dismissed the respondents' strike out application based on an alleged failure by the SGH to exercise its option.

481 In doing so, I expressly accepted SGH's written submissions,[218] which were to the effect that:

(a) SGH could not have exercised any option to renew a lease, because unless and until the Tribunal makes a determination in respect of SGH's claims, it was necessarily the case that there were no terms or conditions of a lease which imposes obligations or confers rights on either party in relation to SGH's occupation of the land;

(b) SGH could not have exercised any option to renew a lease, because unless and until the Tribunal declares there to be an agreement for lease on the terms concerning the grant of two options to SGH as contended by SGH, or a parol lease containing such terms, there is no lease;

(c) the alleged failure by SGH to exercise an option assumed the currency of a lease which included terms setting out the procedure for the exercise of an option, the very existence of which the respondents denied; and

(d) if, contrary to SGH's submissions, the Tribunal should assume or find that the parties are already bound by terms and conditions that are usual in leases of service station premises, the submission of the respondents must still fail, by extrapolation, because of the failure by the respondents to give notice to SGH pursuant to s 28(1A) of the Retail Leases Act 2003 regarding the exercise of the option.

482 By letter dated 7 August 2020 SGH's solicitors also informed the respondents' solicitors as follows:

As you are aware, the principal claim of [SGH] in this proceeding is that an Agreement for Lease was entered into between [SGH] and the [respondents] on about 7 August 2017 in respect of the service station premises at [the land].

[SGH's] alternative claim is that in or about early August 2017, [SGH] on the one hand and the [respondents] on the other entered into a lease by parol (Paragraph 18A, Third Amended Points of Claim). To the extent that there is in existence a lease by parol between those parties in respect of the [land], [SGH] hereby exercises its option for a further term of three years...

483 In circumstances where, during a proceeding not yet determined, in which a putative tenant is seeking to prove the existence of an agreement for lease, including an alleged term being the grant of an option to that tenant for a further term after the claimed initial term, I consider that where the tenant acts in a way consistent with demonstrating an intent to secure the benefit of the claimed further term, that will be a sufficient basis on which the exercise of an option may be later imputed.

484 I find that by SGH's continuation of occupation after 1 August 2020, and by the contents of its solicitors' letter dated 7 August 2020, SGH can be taken to have exercised its option for a further term in respect of the lease that I have ordered the respondents to enter with SGH.

485 I therefore reject the respondents' submission that SGH failed to exercise the first option.

486 Having found an enforceable agreement for lease, it becomes unnecessary for me to decide on the alternative claim made by SGH that there is a lease by parol.

[2] See paragraphs 57-65 of the Respondents' Final Submissions dated 1 April 2021.

[3] See paragraphs 48, 69 and 70 of the Respondents' Final Submissions dated 1 April 2021.

[4] The contention did not form part of the respondent's defences, but was raised by the respondents for the first time in their final submissions.

[6] An "interest" in the land for the purposes of s 222 of the PLA has been held to include a beneficial interest: see Garnett v Jessop [2012] VCAT 156.

[7] See paragraphs 37-45 of the Further Amended Points of Defence and Counterclaim dated 20 December 2018.

[8] See transcript at pp [449]-[458].

[9] What is being alleged in this sub-paragraph is unclear; the rubric appears to refer to the requirement at law for the implication of terms in an otherwise proved agreement.

[10] Appearing as exhibit "KGT-7" to the affidavit of Mr Turnley sworn 3 September 2018, and tendered as Exhibit "R1"

[11] A subsequent Deed of Amendment to the Business Purchase Contract dated 19 August 2016.

[12] Also appearing as exhibit "KGT-7" to the affidavit of Mr Turnley sworn 3 September 2018, and tendered as Exhibit "R1".

[13] The purchase money trust claimed is in respect of fifteen ninety-sixths of the whole, the land having been purchased for $960,000.

[14] A "lease" under the Retail Leases Act 2003 includes an agreement for lease"; see section 3 Retail Leases Act 2003.

[15] It is common ground that Mr Turnley procured only the funds for the payment of the deposit.

[16] See Third Amended Points of Defence of First and Second Respondents to the Third Further Amended Points of Claim and Counterclaims and Cross-Claim (sic) dated 17 January 2020.

[18] But see "pay or source" in paragraph 43 of the FADAC.

[19] See paragraph 9A of the respondents' FADAC.

[20] Mr Turnley conceded in cross-examination that the amounts in the second column were "random and inaccurate".

[22] See paragraph 5 of the Reply witness statement of Mr Turnley dated 10 May 2019.

[23] The balance of $81,000 payable under the Business Purchase Contract was reduced at settlement by $15,000 to a balance payable of $66,000 to take account of less petrol being held on the premises than anticipated by the Business Purchase Contract.

[24] Paid by SGH by bank cheque to Mr Bristow, and hand delivered by Mr Turnley to Paton.

[25] See witness statement of Ms Fraser dated 18 April 2019.

[26] At the date of this Agreement, it will be seen that Mr Turnley had paid $75,000 in respect of the business and $150,000 as deposit towards the land, a total of $225,000.

[36] See Mr Forrest's third witness statement filed 20 May 2019 and signed in amended form on 12 February 2020 at paragraph [10] and witness statement of Ms Fraser dated 18 April 2019 at paragraph [40].

[37] See Mr Forrest's second witness statement filed 17 May 2019 and signed in amended form on 12 February 2020.

[38] Which I take to refer to the Business Purchase Contract and the Land Purchase Contract.

[39] I take this as a denial also of Mr Forrest's allegation as to finance provision contained in paragraph 5 of Mr Forrest's first statement.

[40] "Mr Forrest [has] explained to me" (see paragraph 44 of Ms Fraser's witness statement dated 18 April 2019)

[41] The paragraphs of Mr Forrest's statement are not numbered.

[42] And not in early December 2016 as appears to be suggested by paragraph 9 of Mr Forrest's first statement.

[43] Mr Forrest allegedly having a licence from Mr Bristow

[44] Not by an agreement reached at the time that SGH took up occupation of the business premises in December 2016, as paragraph 9 of Mr Forrest's first statement may suggest.

[45] I have already addressed this aspect of Mr Forrest's evidence.

[46] See paragraph 5 of Mr Forrest's first statement as amended at TB172A.

[47] See Submissions of the Respondent at [19.3].

[48] See Submissions of the Respondent at last four lines of [19.3].

[49] A full copy of which was made available to the Tribunal and the respondents on the resumption of the hearing on 9 December 2019, having been called for by counsel for the respondents.

[51] See, for example, the entries in the 6th and 7th last pages of the Notebook.

[52] See Submissions of the Respondent at [19.1].

[53] See Submissions of the Respondent also at [19.1] at last six lines. Indeed, what finally was attempted under the terms of the Balnarring Motors Deed, to which I have referred, is that Mr Forrest purported to nominate the respondents as purchasers of the land under the Land Purchase Contract, and purported to sell the business to Balnarring Service Centre Pty Ltd.

[54] See Submissions of the Respondent at [19.4].

[55] See Submissions of the Respondent at [19.5].

[56] See Submissions of the Applicant at [45]-[50].

[57] See Submissions of the Applicant at [51]-[52] and [55].

[58] See Submissions of the Applicant at [53]-[54].

[59] See Submissions of the Applicant at [53].

[61] See witness of statement of Mr Turnley dated 12 April 2019 at [47]-[54] and of Mr C Turnley dated 12 April 2019 at [21]-[24].

[62] Affidavit of Mr Turnley sworn 3 September 2018 at [6]. Recital H of the Gourmet Paddock Agreement is also contrary to the respondents' submission that "money required to fund Gourmet Paddock was provided by Kim Turnley".

[63] Mr Forrest third statement at [7].

[67] In particular, see paragraph 7 of Mr Turnley's affidavit sworn 3 September 2018, paragraph 10 of his witness statement dated 12 April 2019 and paragraphs 6 and 7 of Mr Craig Turnley's witness statement dated 12 April 2019, set out above.