Zambito Pty Limited v Buradoo Pty Limited

Supreme Court of NSW|2011-04-05|Before: Hammerschlag J

The parties and entry into of the joint venture 1The plaintiff (or "Zambito") is a company with 150 ordinary shares on issue. One hundred are held by members of the Morabito family and 50 are held by the Zamattia family. Its directors are Frank and Sam Morabito and Bruno Zamattia. 2Yean Street Pty Ltd ("Yean Street") is a company which, until 20 April 2005, owned the land known as Lot 16 Anglewood Estate ("the land") at the corner of Yean Street and Burradoo Avenue, Burradoo, near Bowral in the Southern Highlands region of New South Wales. 3Yean Street was owned and controlled, in equal shares, by Zambito and Mainland Civil Developments Pty Ltd ("Mainland"). Yean Street was the vehicle used by Zambito and Mainland for a joint venture to develop 20 cluster homes on the land. There was apparently a Deed of Trust under which Yean Street held the land for their benefit, but the instrument is not in evidence. 4In 2004, Zambito and Mainland decided that the land should be sold and Anthony Zamattia was given authority to negotiate on behalf of Zambito with Mainland to achieve this. 5Sometime thereafter, Anthony Zamattia told Frank and Sam Morabito and Bruno Zamattia that a company associated with Reed Constructions was interested in buying the land. Later still, Anthony Zamattia told them that Reed Constructions was interested in doing a joint venture with Zambito to develop the land. After this, Anthony Zamattia was advised to retain solicitors, as Sam Morabito put it, "to act on our behalf in the transaction". He says that he recalls having a conversation with Anthony Zamattia in the presence of Frank and Bruno Morabito, on several occasions, prior to the execution of any documents to the following effect: SAM: Anthony, however the JV is structured and whatever you do, you have to protect the land asset of Zambito. If you want to get Terry Grace [of TressCox] involved that is fine, get whatever advice you need to protect our land and spend whatever money is necessary to make sure that the money owed to Zambito is protected. ANTHONY: I know that money is owed to Zambito and it will contribute the money to the JV. We will do whatever is necessary to protect that money. 6TressCox Lawyers ("TressCox") were instructed to prepare a joint venture deed with Reed Taylor Pty Ltd ("Reed Taylor"). They were also instructed to act on the sale of the land. 7On 20 December 2004, TressCox produced a draft joint venture agreement between Zambito, as trustee for the Zambito Trust (representing the Zamattia and Morabito interests) and Reed Taylor. This arrangement was, however, not proceeded with and a different structure was adopted. 8The structure chosen was a unit trust with the joint venture vehicle being the trustee. 9At all material times Reed Taylor was represented by Verekers solicitors. Negotiations took place between TressCox and Verekers. 10On 11 January 2005 Mr Green of Verekers commented on the draft Trust Deed produced by TressCox. Amongst others they suggested the inclusion of a start-up pro forma balance sheet once the contract for sale of the land was finalised. 11On 13 January 2005 Verekers wrote to TressCox. The letter included the following: RE: JOINT VENTURE AGREEMENT DEVELOPMENT SITE - LOT 16 DP270382 "ANGLEWOOD ESTATE" I refer to my letter of 11 January 2005 and with particular reference to clause 19 of the Trust Deed, advise that I have had further discussions with my client and am instructed that the Project was brought to my client on the basis that:-

Material terms of the Trust Deed 16Clause 1 of the Trust Deed provides that "Respective Portions means the following percentages: Zambito Trust 50% Reed Taylor Pty Ltd 50%" 17Clause 1 also defines "Project" relevantly to mean: "the joint venture for the acquisition and development of the Land including the building of cluster homes and the sale of the Lots in accordance with this Deed". 18Clause 12.2 of the Trust Deed provides as follows: Funds of the Joint Venture shall be dealt with in the following order of precedence: (i) Discharge of third party debt. (ii) Repayment of additional contributions made by either one of the Unit Holders. (iii) Repayment of Equity contributions. (iv) Distribution of Profit in accordance with Schedule 5 19Schedule 5 provides that profits of the joint venture will be distributed on a fifty-fifty basis. 20Clause 19 of the Trust Deed which is entitled Finance and Capital Structure is in the following terms: 19.1. On or before completion of the purchase of the Land, the Unit Holders shall lend to the Trustee a total sum of $4,042,500, The loan from the Unit Holders shall be: (a) Lent on terms that neither unit holder is entitled to be repaid their Respective Portion of such loan until the completion of the Project; or earlier dissolution of the Trust; and (b) Shall be lent unsecured and free of any entitlement into interest. Such amount is referred to as the "Initial Unit Holder Loans". 19.2. Independent of the provision to the Trustee of the Initial Unit Holder Loans the Trustee shall borrow, preferably from one Financier, in two or more Tranches, the funds required to firstly complete the purchase of the Land and second, complete the construction. Subject to the approval of the Project Management Committee, Reed Taylor shall procure the finance in the manner provided in this clause. Should Reed Taylor be unable to procure such finance on terms acceptable to the Project Management Committee, the Project Management Committee shall arrange the finance. 19.3. The Unit Holders will provide joint and several guarantees in favour of the Financier as may reasonably be required. Should such guarantees be provided the Unit Holders will enter into a contribution agreement and counter indemnity such that as between them they shall be severally liable in a proportion relative to the extent of borrowing for that party, to the Financier to contribute to any sum payable pursuant to a claim made by the Financier under the guarantee and indemnity. 19.4. The first Tranche of the borrowing shall be an amount of $2,400,000. (a) A sum of $2,021,250 (or such sum that may be payable to Mainland Civil Developments Pty Limited, plus/minus the usual contract adjustments on settlement under the purchase contract for the Land) shall be lent to Reed Taylor with interest to be paid on that amount at the same rate of interest as the Trustee pays on the first Tranche moneys borrowed (the "Reed Debt"). Reed Taylor must pay interest to the Trustee on the Reed Debt and the Trustee must remit that interest payment to the Financier for the first Tranche of the borrowing. Interest payable on the Reed Debt by Reed Taylor shall be calculated and paid on monthly instalments of interest to the Financier for the first Tranche of borrowing. If requested by Reed Taylor the Trustee will direct Reed Taylor to pay such instalments of interest direct to the Financier and a payment so made discharges any liability of Reed Taylor to make, for any relevant month a payment of interest to the Trustee in respect of the Reed Debt. (b) The balance being $378,750 shall be retained by the Trustee to meet costs incurred in the acquisition of the Land and to provide initial working capital for the purpose of carrying out the Project. 19.5. The second Tranche of the borrowing shall be all moneys required to be raised to carry out the construction (Constructions Loan). 19.6. As to the Construction Loan: (a) Reed Taylor, subject to final approval of the Project Management Committee, is to procure a total Construction Loan on the basis that money can be drawn down by the Trustee in amounts equal to 100% of budgeted construction costs as required to meet the requirements of a building program prepared to carry out the Project on the basis that twice as many dwellings will be built as have at any relevant time been pre-sold, with the exception of the first four dwellings, for which the Unit Holders will use their best endeavours to secure pre-sales. For the purpose of this sub-clause a pre-sale means an exchanged contract for sale where a minimum of 5% deposit (or such amount as required by the Financier) has been paid by the purchaser and the terms of the sale are satisfactory to the Financier. (b) If the Trustee is unable to borrow 100% of the budgeted cost of construction to construct, at any one time, twice as many dwellings as had been pre-sold with the exception of the first four units, for which the Unit Holders will use their best endeavours to secure pre-sales., then Reed Taylor will, at its election, exercise its discretion under either or both of the following provisions: (i) Provide additional funds by way of partial repayment of the Reed Debt. ; Such partial repayment will discharge Reed Taylor's liability for that part of the debt repaid. (ii) Provide credit enhancements in the nature of bank guarantees performance bonds, money on deposit or third party securities in favour of the Financier as may be required by the Financier to advance further Construction Loan funds to the Trustee. Should Reed Taylor provide such credit enhancements, for the purpose of calculating interest on the Reed Debt the amount of the Reed Debit liable for interest shall be reduced by the amount of the additional Construction Loan funds provided to the Trustee as a result of the credit enhancements. 19.7. Should further funds be required following repayment of the Reed Debt, a unanimous special resolution of the Project Management Committee is required for any call or request for additional funds to be provided by the Unit Holders. Any funds provided by the Unit Holders in accordance with any such special resolution will be in their Respective Portions. Should a Unit Holder be unable or unwilling to provide funds in accordance with the special resolution the other Unit Holder in its absolute discretion may provide such funds and the loan account of the other Unit Holder will be debited to the extent of such funds and charges and expenses in arranging such additional funds. 19.8. Under clause 19.7 the Unit Holding Parties must provide additional working capital as may be required by the Unit Trust in their Respective Portions within 7 days, or such other period as may reasonably be required, of a request by the Unit Trust (acting by the trustee Company) pursuant to a resolution by the Project Management Committee. 19.9. Should a Unit Holding Party fail to contribute additional funds as required under clause 19.8, the relevant Unit Holding Party in default, will incur a charge to the Trustee under its loan account (and without credit or adjustment of its Respective Portion) of 1.1 times its proportion of the additional funds requested for each 30 days that the required additional contribution is unpaid. 19.10. Should the Unit Trust (acting by the trustee Company) be required to borrow funds to meet liabilities of the Unit Trust in circumstances where a Unit Holding Party is in default of its obligation to contribute additional funds as required under clause 19.8, the relevant Unit Holding Party in default is liable to the Trustee under its loan account for all costs of such borrowing and the Unit Trust may debit its loan account (or profit draw entitlement, as may be the case) accordingly. 19.11. Upon the dissolution or other termination of the Unit Trust, the Unit Holding Parties will be jointly and severally liable for the payment of any outstanding obligations or liabilities of the Trustee. 19.12. The rights and obligations of the Unit Holders under this clause 19 are subject to clause 20(b)(i).- 21Schedule 2 to the Trust Deed is the following pro forma Opening Balance Sheet for the joint venture: BURADOO PTY LIMITED As Trustee for ANGLEWOOD DEVELOPMENT TRUST PRO FORMA BALANCE SHEET AS AT 2/3/05 Notes 2005 2004 $ $ Assets Cash 148,760 0 Development Land 3,675,000 0 Capital Acquisitions Costs 1 230,000 0 Loan - Reed/Taylor 2 2,021,250 GST Receivable 367,500 Cash on deposit Reed/Taylor 50%/Zambito50% 4 202,125 Other 0 0 6,644,635 0

Total Assets 6,644,635 0

Liabilities Bank Loan 2 2,400,000 0 Loan - Zambito 3 2,021,250 Loan - Reed/Taylor 3 2,021,250 Cash on deposit Reed/Taylor 50%/Zambito50% 4 202,125 0 0 6,644,625 0

Total Liabilities 6,644,625 0

Equity Settlement Sum 10 0 0 Total Equity 10 0

Notes:

Includes stamp duty and legals and other costs of purchase
This loan is serviced at the same interest rate that applies to the bank loan, subject to the proviso that interest is calculated on the reduced balance, allowing for credit enhancements.
These loans are interest free and are subordinated to the completion of the project and subject to the plus/minus usual contract adjustments on settlement for the purchase of the land.
Loan 50% from Zambito and 50% from Reed Taylor to provide funds for deposit. This amount to be distributed to Zambito and Reed Taylor in their respective portions upon receipt of the GST Receivable from the ATO.

Sale of the land to Buradoo 22On 25 January 2005 Yean Street and Buradoo entered into a written contract under which Yean Street sold the land to Buradoo for $4,042,500. 23At or about the time of exchange, each of Zambito and Mainland addressed a letter to Yean Street directing it to sell the property and giving it instructions on how to deal with the sale price to be received. These letters were referred to by the parties as the "side letters". 24The side letter from Zambito to Yean Street, signed on behalf of Zambito by Sam Morabito, was in the following terms: Re: Sale of Lot 16 DP 270382, 'Anglewood Estate', Cnr Yean Street and Burradoo Road, Burradoo (property) Zambito Pty Limited directs Yean Street Pty Limited to sell the property to Buradoo Pty Limited ACN 112 590 682 for the price of $4,042,500.00 inclusive of GST (price) and, on settlement, to: (a) pay to Mainland Civil Developments Pty Limited $1,837,500.00 plus/minus the usual contract adjustments on settlement (less any payments to be made on settlement by Yean Street relating to the sale), and to (b) credit as payment by the purchaser, a distribution to Zambito Pty Limited, being $1,837,500 plus/minus the usual contract adjustments on settlement (less any payments to be made on settlement by Yean Street relating to the sale). Yean Street Pty Limited is not required to collect the half share of the price plus/minus the usual contract adjustments on settlement to which Zambito Pty Limited is entitled under the Deed of Trust dated 14 November 2001 or joint venture agreement. Zambito Pty Limited will make its own arrangements with the purchaser in this regard. DATED: 24 Jan 2005 25The side letter from Mainland was in the same terms save that it commenced with the words "Mainland Civil Developments Pty Ltd directs" rather than "Zambito Pty Ltd directs". 26Settlement of the sale took place on 20 April 2005. Coudert Brothers, solicitors acted for Yean Street at settlement. 27By letter dated 27 April 2005 TressCox reported on the settlement to Mr Zamattia as a director of Buradoo. Amongst others they said Settlement The amount paid on settlement is shown on the attached settlement sheet. In accordance with the arrangement as set in side letters, $1,747,669.72 was paid to Mainland Civil Developments Pty Limited; the corresponding amount due to Zambito Pty Limited was not drawn or paid at settlement. 28Taking into account the deposit paid and other adjustments required, the balance due on completion was $3,885,349.28. The settlement sheet contains the following tabulation of the cheques drawn (and not drawn) on settlement: Cheques 1 Coudert Brothers $20,287.05 2 Mainland Civil Developments Pty Ltd $1,747,669.72 3 Zambito ** $1,747,669.72 4 Yean Street Pty Limited $367,551.73 5 Wingecarribee Shire Council $1,792.22 6 Wingecarribee Shire Council $378.84 $3,885,349.28 ** As agreed this cheque will not be drawn on settlement.

Other events 29In approximately June 2005 construction commenced of the first twenty homes to be built on the land. They were completed in about April 2006 and were sold. 30On 17 August 2009, Buradoo sold its remaining interest in the land to BF Investments Pty Ltd and Norfolk Doors Pty Ltd. Settlement of the sale occurred on 8 October 2009. The balance of the sale proceeds is held by Buradoo's solicitors. As at 31 January 2010 they held $776,071.63. With accrued interest I was informed from the bar table that the amount is now approximately $800,000. The joint venture has not engaged in any further activities. 31At all material times Pitcher Partners were the accountants and advisors to Buradoo. In evidence are Buradoo's trust tax returns for the tax years 2005 - 2009. Those tax returns include Buradoo's balance sheet for each year. 32Its balance sheet as at June 2005 shows the amount of $1,747,669.72 as a current liability, a loan to Jainti. Its balance sheets as at June 2006, June 2007, June 2008 and June 2009, respectively, show loans to Jainti of $1,852,669.72, $1,952,669.72, $2,012,559.72 and $2,021,250.00. It is not in issue that the figures after 2005 include the amount reflected as at 2005. 33In evidence are letters dated 28 May 2009 and 11 August 2011 from Pitcher Partners to Geoffrey Reed of Reed Taylor enclosing the income tax return for 30 June 2008 and a letter 11 August 2010 enclosing the tax returns for 2009. 34Sam Morabito says that in about August 2009 he noticed that the balance sheets of Buradoo did not reflect an amount equivalent to 50 per cent of the price paid by Buradoo on settlement of the land ($1,747,669.72) as a debt due to Zambito but rather treated the debt as being due to Jainti Pty Ltd. There then followed correspondence between Zambito's solicitors and Verekers on behalf of Buradoo in which Zambito asserted and Buradoo denied that Buradoo's balance sheets should show Zambito and not Jainti as the creditor in the sum of $1,747,669.72 arising out of the initial transfer of the land to Buradoo.

THE PARTIES' SUBMISSIONS 35Zambito claims $1,747,669.72 as a debt due from Buradoo on the basis that it lent that amount to Buradoo under a loan agreement between them to assist Buradoo to complete the purchase of the land. 36Buradoo particularises the loan agreement as follows in its Commercial List Statement: The agreement was set out in a series of "side letters", summarised in the letter of the defendant's solicitor to the defendant dated 27 April 2005 reporting on the completion of the purchase, under which the amount to be paid over by the defendant to Yean Street to complete the purchase was to be reduced by $1,747,669.72, and that amount was to be treated by all parties as a loan from the plaintiff to the defendant. 37It pleads that $1,747,669.72 which would otherwise have been payable to Yean Street on settlement was treated as having notionally been paid by Buradoo to Yean Street, having then been distributed by Yean Street to Zambito and having then been lent by Zambito to Buradoo. It pleads that in these circumstances on 20 April 2005 it lent the sum to Buradoo. It says that it was a term of the loan contract that the loan was repayable on demand. It says that on 15 December 2009 it made demand for repayment but was not paid. 38Zambito accepts that it bears the onus of establishing, on the probabilities, both the existence of the loan agreement and its terms. 39It further accepts that the evidence does not disclose any express loan agreement. It puts that the agreement is to be inferred from: a the side letters which make it clear that there was agreement between Yean Street, Mainland Civil and Zambito under which each of Mainland Civil and Zambito were entitled to one half of the sale price of the land owned by Yean Street; b the side letters themselves directing Yean Street to credit Buradoo with payment of one half of the purchase price, as though a distribution had been made to Zambito of its half share i.e. to treat the obligation to pay the remaining half share as an obligation to Zambito rather than an obligation to Yean Street; c the fact that contracts were exchanged for the full purchase price of $4,042,500; and d the fact that settlement then took place with only one half of that amount being paid over. 40It puts that these facts demonstrate that the real intention of the parties was for Buradoo to be relieved of the obligation to pay the second half of the purchase price by taking up a debt to Zambito for that amount instead. 41Buradoo submits that the facts and circumstances pleaded and relied upon by Zambito do not disclose any such loan agreement. It puts further that the acts and conduct of the parties, including their omissions, disclose a tacit understanding or agreement on the part of Zambito, Buradoo, Jainti and Reed Taylor that the unpaid balance of the purchase price of the land was to be treated as the loan which Jainti was obliged to make to Buradoo under cl 19.1(a) of the Trust Deed.

CONSIDERATION 42Given the absence of any express agreement, the conduct of the parties viewed in the light of the circumstances must be examined to see whether a tacit understanding or agreement is revealed. 43The approach required is that identified in the following terms by McHugh JA in Integrated Computer Services Pty Ltd v Digital Equipment Corp Aus Pty Ltd (1988) 5 BPR 97 326 at 11,117 Nevertheless, a contract may be inferred from the acts and conduct of parties as well as or in the absence of their words: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (Court of Appeal) (11/11/88) . The question in this class of case is whether the conduct of the parties viewed in the light of the surrounding circumstances shows a tacit understanding or agreement. The conduct of the parties, however, must be capable of proving all the essential elements of an express contract: cf Baltimore and Ohio RR Co v US 261 US 592 (1923); Fincke v US 675 F2d 289 (1982). Care must also be taken not to infer anterior promises from conduct which represents no more than an adjustment of their relationship in the light of changing circumstances. 44At the outset it should be observed that Zambito's claim as particularised in its Commercial List Statement must on its face fail. Zambito particularises the agreement as being set out in the side letters. No such agreement can be extracted from those documents. All the side letters do, relevantly, is to record that Yean Street is not required to collect the half share of the price on settlement and that Zambito will make its own arrangements with Buradoo. They do not give any clue as to the nature of those arrangements. 45I turn then to whether the conduct of the parties viewed in the light of the surrounding circumstances shows the tacit understanding or agreement for which Zambito contends. 46For the reasons which follow, not only do I consider that the circumstances do not disclose such an understanding or agreement, but rather it seems to me, they are, at the lowest inconsistent with its existence. 47Under cl 19.1 of the Trust Deed, Jainti and Reed Taylor were each to lend Buradoo an amount equivalent to half the price Buradoo was paying for the land. As the pre-transaction correspondence, cl 19 of the Trust Deed itself and the pro forma balance sheet in Schedule 2 reveal, these loans were to be treated as equity contributions to the joint venture. Originally, Zambito was to be the Zamattia Morabito nominee and was, as discussed between the Morabito and Zamattia interests in the conversation recounted above, to contribute money to the joint venture. However Jainti was the entity ultimately utilised to make that contribution. 48However, as Zambito would have it, the joint venture was funded in part by Reed Taylor duly making its equity contribution with the remainder being funded, not by Jainti duly making its contribution, but by a third party loan from Zambito repayable on demand. 49If this were the case, the parties engaged in the following commercial conduct, which I consider to be inherently unlikely: a from the outset they acted in a manner inconsistent with the way the joint venture was to be funded with Jainti being in breach of its obligations under cl 19.1 of the Trust Deed and remaining in breach; b under cl 12.2 of the Trust Deed repayment of the loan to Zambito (a company associated with Jainti and the Zamattia and Morabito interests and originally to represent their interests in the joint venture) would take precedence over repayment to Reed Taylor of that company's equity contribution; and c the joint venture would have assumed the risk of Zambito, at its whim, demanding immediate repayment of the loan albeit that Jainti had not made its equity contribution. 50Moreover, Buradoo's own conduct is inconsistent with the alleged loan agreement. For each of the years from 2005 to 2009, Buradoo reflected the amount concerned as a loan from Jainti, not from Zambito. The balance sheets were provided to Reed Taylor. There is no evidence of any dissent on the part of Jainti. 51Zambito proffered no evidence of anything that it said or did consistent with the existence of the loan for which it contends. It did not adduce admissible evidence of entries in its books at any time (let alone contemporaneously or substantially contemporaneously made) treating the amount as a loan to Buradoo repayable on demand; see Albion Hotel Pty Ltd v The Commissioner of Taxation of the Commonwealth of Australia (1965) 115 CLR 78 at 92. 52In my view the conduct of all concerned is consistent rather with the amount now being claimed as having been treated as performance by Jainti of its obligations to lend the trustee money pursuant to cl 19.1 of the Trust Deed. It may be that Jainti in turn is indebted to Zambito but that is a matter between them. Either way, Zambito has failed to establish the loan agreement for which it contends. 53The result is that its claim is dismissed with costs. 54The exhibits are to be returned.

Amendments 14 April 2011 - Typographical errors Amended paragraphs: 31, 39, 47 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2011

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