Volanne Pty Ltd v International Consulting and Business Management

Volanne Pty Ltd v International Consulting and Business Management - [2016] ACTCA 49 - ACTCA 2016 case summary — Zoe

[50]

ICBM's bank statement for June 2001 records cheques for the two amounts mentioned, on 6 June and 19 June. There is another cheque on 22 June for $6,000.00. Mr Godfrey's evidence about that was that he thought that he had received a telephone call from Mr Fragopoulos saying that his wife needed money to pay the Sydney fish market. His recollection was that he went to the bank and cashed a cheque for $6,000.00 and took it to her at the fish shop. He said that he was extremely concerned that the business did not have adequate funds to buy stock for a weekend.
The evidence was corroborated by a note in his notebook to the effect that Mr Fragopoulos had rung from Spain on 22 June saying that he was confident that the deal was "going down". He spoke to Mr Fragopoulos who told him that his wife would be ringing about the fish market. Mrs Fragopoulos then rang and asked for the $6,000.00 to cover fish from Sydney.
A further note in the notebook is to the effect that on 24 June he returned a call from Mr Fragopoulos in Spain and said that he was concerned about the business having debts, after his discussion with Mr Fragopoulos. Mr Fragopoulos told him not to worry. He said that they would talk about it when he returned but that he was positive he would have the money on his return.
Mr Godfrey said that when he went to the fish shop on that occasion Mrs Fragopoulos told him for the first time that her husband had borrowed a lot of money and that they were having trouble meeting business commitments. She did not say who they had borrowed the money from.
Mr Godfrey said that he became concerned and wanted some security for the money his company had lent. The day Mr Fragopoulos got back from Spain he asked him for a full set of accounts to the end of the financial year, so that he could make an assessment of the financial position of the business. Mrs Fragopoulos sent some documentation, and after further prompting, most of the financial data to 30 June 2001. By that time ICBM had lent approximately $51,000.00. The figures showed that the business had a quarterly turnover of over $600,000.00.
Mr Godfrey told Mr Fragopoulos that he would be instructing solicitors to draw up agreements to document and secure the loan funds. He instructed Phillips Fox.
At about the same time, Mr Godfrey said that he had discussions with Mr Fragopoulos about regular repayments. They agreed on repayments of $1,000.00 per week, starting from 1 September 2001.

[119]

(d) It may also be the case that appealable error exists by reason of a failure at first instance to determine the case upon a proper consideration of the real strength of the body of evidence presented by the losing party and the basis upon which the evidence of a witness was found unreliable is too fragile or slight: SRA v Earthline at [63]-[64] (Gaudron, Gummow and Hayne JJ), [93]-[94] (Kirby J) and [148]-[155] (Callinan J); cf e.g. Hasler v Singtel Optus Pty Ltd [2014] NSWCA 266; (2014) 311 ALR 494 (Hasler) at 525 [157] (Leeming J (with whose reasons the remainder of the Court agreed)).

(e) Underpinning the authorities as to the second class of cases is a continuing appreciation of the advantage which the primary judge may enjoy despite the availability today of complete transcripts of evidence and argument, the trend to giving evidence in chief by affidavit, and a growing understanding of the fallibility of the judicial evaluation of credibility from the appearance and demeanour of witnesses, particularly in the stressful environment of the courtroom and in an increasingly culturally diverse society...

(f) A finding that oral testimony is disbelieved will almost invariably be express. However, it cannot be assumed that every consideration influencing the primary judge's assessment of credibility, including her or his impressions of the witness, will find expression in the reasons. In discharging the appellate function, account should also be taken for unexpressed considerations and impressions: Fox v Percy at 132 [41] (Gleeson CJ, Gummow and Kirby JJ)....

(g) Finally, the weight to be given to the advantage enjoyed by the primary judge must, of necessity, be affected to some degree by the circumstances of the individual case....

79. In short, as Dodds-Streeton JA explained in Kelso at [150]:

As Warren v Coombes, the authorities approved therein and subsequent High Court decisions such as Fox v Percy and Della Maddalena make clear, the appeal court must consider the record of the trial below and the judgment of the trial judge, together with any additional evidence admitted. It must reach an independent conclusion on all issues which it is as well placed as the trial judge to determine, such as the assessment of documents, expert reports which are independent of the credit of any witness seen by the trial judge and inferences from established fact. It must also independently determine matters in which the trial judge enjoyed a legitimate advantage, such as the observation of witnesses, physical demonstrations and other matters referred to in Fox v Percy and like cases, but must make appropriate allowance, without uncritical deference, for such an advantage. If it reaches a different conclusion, either on any specific issue or the ultimate outcome of the case, it must give effect to its own decision.

[173]

You were happy to leave in the $336,000?--- I wasn't happy. I had no idea. I assumed---

Mr Fragopoulos, this is just a bit convenient, isn't it?--- It's not. I've just explained to you, I never keep records of anything in particular like this. It's my wife is in charge.

Because you know that that amount included ---? --- How do I know that?

Could you wait for the question, please?--- Go ahead.

Because you knew that that figure of $336,000 included interest and it was the amount that Mr ---? ---How am I supposed to know that, sir?

Because Mr Godfrey had given you schedules from time to time, including interest, showing where the level of indebtedness was? --- Never. The first schedule he gave us with interest again was after we had gone through this ATSIC and he came to us and asked us for our records in order to make his.

Well, they are your records there in that other piece of paper I gave you, aren't they? --- No. It says Vollane [sic], so they must be. The problem that I have right now is for you to understand, to convince you that Mr Brendan Godfrey, if it was consultancy or if it was borrowings, he never gave us any kind of statement, any letters, anything to say that we were - we have paid this or you are in arrears, never, nothing whatsoever. And the reason of that, because we were together in the venture for one reason only, to succeed. If we did not succeed, we support the business in order to pay to get all our losses back.

Well, why didn't you tell the court that? --- Okay. Why did I tell the court what?

....

... Vollane's [sic] current indebtedness to ICBM is $336,000. Why did you tell the District Court in Wagga and certify that that was true, if you are now saying that that is not true? --- Okay. This is one of the very few statements that I have ever made in my life and knowing where - now where [Mr Jim Colquhoun, the solicitor acting for Mr Godfrey] was going with this, I realise that even that should not have been done - signed, okay. The reason I had not signed a statement since all this commotion, one or two or three years ago, when this happened, this is in 2007. They came to us, I think, in 2003/2004, so about three years ago. They were asking for a statement and I was denying that. So I had a solicitor that I told him, for this particular letter, I don't want to give any statements. Mr Calhoun [sic], he came up repeatedly and he convinced me, he made all this up. I had no idea of - no understood - yes, this particular paragraph 3 here where it says "Money, advanced by Vollane [sic] to Brendan Godfrey through his company", "secured by a fixed and floating charge over the assets of Vollane [sic]", okay, I didn't even understand most of it, okay. I understand he's talking about Brendan, that he has lent us money, the amount 336. I said, yes, we owe him money, about that, yes, what else, and I moved on and I made some changes, okay. Now you know. This became in here from Jim Calhoun [sic]. I have signed it and I don't believe that this is true.

So you mislead the District Court when you gave evidence in Wagga? --- I did so without my - without my knowledge, yes.

Or are you misleading his Honour in this court now? --- I have no reason.

At a glance

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Judgment (199 paragraphs)

Volanne Pty Ltd v International Consulting and Business Management (ICBM) Pty Ltd [2016] ACTCA 49 (30 September 2016)

Parties

Cases Cited (12)