Jon and I have bought these vehicles together, you know, I have put up money, Jon put up money and we have purchased these vehicles together.
192 On Mr Davies' evidence, Mr Terry later worked with him as a freelancer in his Flying Gecko business, although Mr Terry sent his own invoices for any work he performed. He understood these proceedings were concerned to ensure that Mr Terry got his percentage of the business back. He had no knowledge of any wages claim, although he understood that during their arrangement, Mr Hughes had been paying Mr Terry a small 'living wage', 'to cover rent and basics.' He could not recall Mr Terry complaining about not receiving that wage, however. He explained that he gave Mr Terry work, because he understood 'he was paying his way, but he just didn't have enough to do the, get the vehicles registered'.
193 Mr Davies also explained that he understood that was Mr Terry was seeking in these proceedings, was to recover his share of the business and the equipment, which he partly owned.
194 In his 5 March affidavit, Mr Hughes acknowledged having mentioned to Mr Davies that he and Mr Terry were having discussions about going into business together. He denied, however, having suggested a partnership existed, or that they had put money into the business together.
195 Mr Davies replied to this affidavit, adhering to his version of their discussion. Mr Hughes' oral evidence again threw quite a different light on what had occurred.
196 In cross examination, Mr Hughes agreed with various matters which had been extensively pressed with Mr Terry in cross examination, including that he had long had a drinking problem and that his denials about that in his affidavit evidence, were incorrect. On his own evidence, Mr Hughes has no difficulty in undertaking normal activities and works as a licensed electrician, despite the injury he suffered some years ago, in which he suffered some brain damage. He also agreed that he had worked in the film industry and that Huge Lights had traded during 2001.
197 Mr Hughes also agreed that in his personal financial circumstances, hypothetically he could have employed someone on $650 per week, but denied that he had ever employed Mr Terry, or agreed to pay him such a sum. Mr Hughes was not, however, cross examined as to employing Mr Terry as his apprentice.
198 Mr Hughes explained that while he had paid for Mr Terry's airfare to the UK, he had expected to be reimbursed. Initially, he insisted that the main purpose of the trip was to visit his father, not to look for equipment or to go into the equipment hire business. Mr Hughes explained that nevertheless, about half of the expenses incurred on the trip were claimed as business expenses. He also explained how he travelled around the UK with Mr Terry and purchased some $120,000 worth of equipment, leaving Mr Terry with 1,000 pounds to purchase some generators. After he returned to Australia, Mr Terry assisted him in the UK with 'quarantine, checking work on the containers and making sure they were properly packed' for two days at Withams. Mr Hughes agreed that the work was done for him and that 'he was acting as my agent' and that Mr Terry's signature appeared on various of the documents in evidence. Mr Hughes later accepted that the description of this work in his affidavit as Mr Terry providing only 'nominal assistance' was incorrect.
199 Mr Hughes, nevertheless, denied that he agreed to pay Mr Terry $650 a week for this work. On his evidence, a reward had been agreed, namely, 'I shipped all his bits and pieces.' Mr Hughes also denied that Mr Terry had ever claimed any expenses, until these proceedings had been commenced, or that such expenses had ever been raised earlier with him by Mr Terry. He also denied that equipment claimed to have been purchased by Mr Terry, had been purchased for Huge Lights, or for him. In later cross examination, however, Mr Hughes accepted that Mr Terry may have incurred expenses in the UK while working as his agent, for example, accommodation while he was loading the containers, but explained that he would have expected such expenses to have been claimed on Mr Terry's return to Australia and that he thought the expenses claimed in these proceedings were a 'bit over the top, some of them'.
200 That description must be accepted, given Mr Terry's own evidence and what was included in the expense claim.
201 After his cross examination, Mr Hughes swore another affidavit on 9 March 2007, in which he dealt with certain invoices for equipment he had purchased from Withams in the UK. He claimed that Mr Terry had taken the originals of those invoices and had not returned them, despite being repeatedly asked to do. He also claimed that some of those invoices had been altered by Mr Terry, using Mr Maine's computer. The altered invoices had been provided to customs, in order to reduce the customs duty payable on the equipment imported from the UK. Those customs documents were already in evidence; having been tendered in Mr Terry's case and Mr Hughes having been cross examined on them. His evidence had been that Mr Terry and Mr Maine had falsified these invoices using Mr Maine's computer.
202 Mr Hughes claimed that he had later become anxious about what he had done. Mr Terry also threatened to 'dob him in'. In December 2001, he asked Withams to fax his bookkeeper, Kathy Flood, at Blood from a Stone, copies of the original invoices, Ms Flood had since died. He also obtained confirmation that he had paid Withams 32,750 pounds by electronic transfer from his Westpac account.
203 Annexed to Mr Hughes' 2007 affidavit was invoice No 09111 dated 24 April 2001, faxed by Withams on 18 December 2001, reflecting a total sum of 33,500 pounds for identified equipment, with a deposit of 2,000 pounds noted as 'paid'. Attached to the customs documents was a different version of that invoice, dated 18 June and reflected a sum of 24,000 pounds.
204 There were also other versions of Withams' invoice No 09111 in evidence, for example, one sent by Mr Hughes to a Mr Carter in May 2001, for a sum of 43,000 pounds and different items listed to those appearing on that provided by Withams.
205 Also annexed to Mr Hughes' 2007 affidavit was invoice No 09112 dated 25 June 2001. It was for a sum of 16,500 pounds. This, too, was claimed to have been created by Mr Terry. No original of that invoice provided by Withams, was annexed to Mr Hughes' affidavit.
206 There were also two versions of a third Withams' invoice No 03570 annexed to Mr Hughes' 2007 affidavit. It was made out on letterhead, but was handwritten, addressed to Huge Lights, dated 19 June 2001 and for a sum of 1250 pounds. The first version of this invoice had been annexed to Mr Terry's April 2002 affidavit and he had tendered the original. Mr Terry claimed he had paid this sum and sought its reimbursement. The word 'paid' was written on the original invoice and it had the word 'credit' crossed out, in the credit/cash notation. This document, Mr Terry claimed, showed that he had paid cash for the items specified.
207 The second version of invoice No 03570 had also been faxed by Withams on 18 December 2001. It differed from the version annexed to Mr Terry's affidavit in two ways. The first, it also had a handwritten notation on it, saying 'see inv 9111 24/4/01 for shipping docs'. The second, it did not have the word 'credit' struck out, in the credit/cash notation. Mr Hughes claimed that he had paid Withams for this account, not Mr Terry.
208 A Natwest payment advice dated 4 June 2001, also provided by Withams on 18 December was annexed to Mr Hughes' 2007 affidavit. It showed a payment of 32,744 pounds sterling and charges of 6 pounds, received from Westpac on Mr Hughes' order, a total of 32,750 pounds. Mr Hughes claimed that this represented the total outstanding of invoice No 09111, of 31,500 and invoice No 03570 of 1,250 pounds, that is 32,750 pounds.
209 Mr Hughes was cross examined about these matters. I accept, that evidence was entirely confusing. The dates in his affidavit, he agreed, were plainly incorrect in certain respects. He accepted that they must have been wrong. The dates that he corrected them to, however, still made no sense, given the dates of the documents annexed to his affidavit. What was further confusing however, was that Mr Hughes was taken to documents produced by the respondents in answer to a summons. Access had been granted to the applicant, to photocopy these documents. What purported to be a photocopy of what the respondents had produced, was shown to Mr Hughes. The photocopy differed from what the respondents had produced. How that came to be was not clear initially, but as the evidence later came to be clarified, it appeared that the photocopy included documents which had been in Mr Terry's possession. Mr Terry was recalled to deal with this evidence.
210 What did make sense, at least from an arithmetical point of view, was the payment of 32,750 pounds to Withams, in payment of the two invoices Withams provided by fax to Ms Flood, invoice Nos 09111 and 03570. There was no suggestion that Mr Hughes had not made that payment by electronic transfer. Withams had provided Ms Flood with evidence of its receipt of that payment. There was no suggestion that the documents had not come from Withams in December 2001.
211 When Mr Terry was recalled, how invoice No 03570, the original of which he had in his possession and had annexed to his 2002 affidavit, came to be different to that supplied by Withams, was explored. He had no explanation, insisting that the document he relied on, evidenced his payment of 1,250 pounds in cash to Withams, while he was in the UK in 2001.
212 Mr Terry relied on the word 'paid' written on the original invoice. He explained that he did not understand the difference between an invoice and a receipt. He could not explain why the amounts on invoice Nos 09111 and 03570 supplied by Withams, added up to the amount Mr Hughes had paid Withams. He also denied that he had failed to give invoice No 03570 to Mr Hughes before these proceedings, because he knew Mr Hughes had already paid that amount.
213 Mr Terry was also cross examined as to how he came to have other Withams' documents in his possession. He claimed that he had inadvertently taken the other Withams' invoices from the North Ryde workshop in November 2001, because they were 'blowing around'. He denied having taken them deliberately, in order to later use them against Mr Hughes. His evidence was that he had given everything to his solicitor, after the lockout. He claimed to have forgotten that he had copies of invoices Nos 09111 and 09112. Those documents remained in the file of his original solicitor and he had gained access to them, only when that file was produced during these proceedings. Mr Terry also denied that he had earlier threatened Mr Hughes, that he would use those documents against him. He also claimed that he had no idea that there was any problem with customs. Despite this, he agreed that it was on his instructions that his solicitors had subpoenaed documents from the Federal Department of Transport in October 2006, about which Mr Hughes had then been cross examined. Mr Terry agreed however, that at the time, he had been of the opinion that Mr Hughes had falsified documents and that the cross examination about these matters had put Mr Hughes in a very embarrassing situation.
214 Mr Terry said that he had nothing to do with any falsification of any of the invoices. On his evidence, the customs documents had come from the UK, from the shipping agent and had been sent straight to customs. There was nothing to do in relation to the customs paperwork. He suspected that it was the shipping agent who may have falsified the documents, but he claimed that he did not have that suspicion, until after these proceedings were commenced.
215 Mr Terry also denied that he had used his knowledge of these matters to threaten Mr Hughes in relation to the Withams' invoices, knowing that Mr Hughes could not resist his claim in relation to invoice No 03570, for 1,250 pounds, without revealing what had been done in relation to the other Withams' invoices.
216 This development in the proceedings gave rise to a further difficulty, not easy to resolve on the evidence. To that point, it was obvious that both Mr Terry and Mr Hughes had been less than truthful about aspects of their evidence. Who was to be believed as to payment of invoice No 03570, which they each claimed to have paid?
217 Given the time at which these various documents came into evidence and how, I am unable to accept that Mr Terry had no knowledge of what had been done with the Withams' invoices in 2001, so far as customs was concerned. It was on Mr Terry's instructions that the documents were subpoenaed in these proceedings and Mr Hughes was cross examined on them, resulting in Mr Hughes' revealing in re-examination, the fabrication of invoices, in his 2007 affidavit. At the time the events occurred in 2001, Mr Hughes and Mr Terry were in business together. It was then in their joint interest to minimise any tax liabilities. On his own evidence, Mr Terry claimed he had already taken steps to do just that in the UK in relation to transport costs. There can be, no doubt, on Mr Terry's own evidence that the Stanton Transport invoice had been fabricated. On Mr Terry's own evidence, he had also been involved with Mr Hughes, in attending to the steps necessary to be taken to have the equipment released to Huge Lights in Australia. Money was of particular concern to Mr Terry at the time.
218 Mr Terry's claim to have paid 1,250 pounds cash to Withams rested on the original version of invoice No 03570. That document is inconsistent with the invoice Withams provided in December 2001, and with the evidence of the payment made to Withams by Mr Hughes.
219 Plainly enough, the words 'see invoice 9111 24/4/01 for shipping docs', which appear on the invoice Withams provided Ms Flood, could have been written on the copy of the invoice which Withams had kept, after giving Mr Terry the original. That cannot, however, explain how the word 'credit' came to be crossed out on Mr Terry's invoice, but not on that which Withams retained. Earlier payment, on 4 June, of the amount of the invoice by Mr Hughes, by electronic transfer, is however, consistent with that word not having been crossed out by Withams and the word 'paid' being written on the invoice. Crossing out of the word 'credit' on the original invoice given to Mr Terry, could plainly have occurred after it was in his hands.
220 On all of this evidence, I am unable to come to the conclusion that Mr Terry's claim that it was he who paid Withams, was established.
221 Mr Hughes had earlier agreed that after his return from the UK, the premises at North Ryde were acquired and that he had worked with Mr Terry in cleaning and renovating them. He agreed that at that time, he was considering Mr Terry's suitability as a business partner, but came to have doubts about him. He agreed that he gave Mr Terry keys to the premises, a mobile phone and that Mr Terry worked on the equipment he had purchased, when it arrived from the UK. Mr Hughes also agreed that his wife was annoyed over what he had acquired in the UK, when she saw how much he had spent.
222 Mr Hughes agreed that after the lockout, he had disposed of equipment he had acquired in the UK in something of a 'fire sale'. He explained that Mr Terry had dismantled that equipment and had removed items. He also explained that he had funds acquired from the earlier sale of his lighting truck, which was being paid off at $4,000 a month and that he had lived on that income, before he had started working again in early 2005. It was on that basis that he agreed he could have paid Mr Terry $650 a week.
223 Mrs Hughes' evidence in cross examination was that before they travelled to the UK together, Mr Terry and Mr Hughes had discussed going into business together and that a purpose of their trip was to purchase vehicles. In the UK, her husband spent $150,000 on equipment and shipping costs, intending to use them in the film industry and elsewhere. This was all the money he had received from a prior marriage settlement. Mrs Hughes agreed that in 2001, she was concerned about her husband entering into a business with Mr Terry and annoyed at the money he had spent. Mrs Hughes denied however, that Mr Hughes and Mr Terry had ever entered into a contract with each other, or that she had brought the business venture to an end. Her diary noted that she and Mr Hughes had spoken to Mr Terry about stopping work on 18 January 2002. She agreed that on 20 January, she had been involved in changing the locks at the workshop and had written and then placed a notice on the door. Mr Terry's phone was also stopped. She denied having tried to mislead the Court by suggesting that Huge Lights had not traded since 1999, when it had made income of some $12,000 in two months in 2001, explaining that she had been mistaken and had not then had a power of attorney, or any involvement in the business.
224 Mr and Mrs Hughes had married in 2001. On her evidence, she worked in the home care industry and had little to do with her husband's business, until 2002, when she was given power of attorney over his personal affairs, after he attempted suicide and was hospitalised. As a result, she also attended to certain of the affairs of Huge Lights, but was not a signatory on its cheque accounts. She was only a signatory on Mr Hughes' personal account. Nor was she a director of the company, although through a misunderstanding of what the power of attorney meant, she agreed that she had so described herself on occasions.
225 Mrs Hughes explained that some of the equipment purchased in the UK had been retained and some had been sold in August 2002, when Mr Hughes was approached about the sale of some of the equipment. The North Ryde premises were vacated in May 2002, because they could not afford to pay the rent and some of the equipment was moved to the country, where it was stored for a nominal rent. Mrs Hughes did not know the aquisition price of the various equipment, or what it had been sold for. The money was paid to Mr Hughes personally, not to Huge Lights. She also explained that she ceased using the power of attorney when Mr Hughes was again capable of taking charge of his affairs, in early 2005.