Assessment of Damages in Subdivision Agreement Dispute

The court assessed damages in a dispute over a subdivision agreement, considering breaches and resulting costs. The court ordered specific calculations and adjustments to account for delays and additional expenses.

OUTCOME: Allowed

Supreme Court New South Wales

Medium Neutral Citation: [COMPANY_1] v [NAME_3] (No 4) [2021] NSWSC 157 Hearing dates: 3 July 2020 (Submissions 6 July 2020); Directions 21 July 2020 Date of orders: 2 March 2021 Decision date: 02 March 2021 Jurisdiction: Equity Before: Emmett AJA Decision: Order that:

1. The Plaintiff, within 14 days, file and serve Proposed Short Minutes of Orders giving effect to these reasons and the earlier judgments.

2. The Defendants, within a further 14 days, file and serve a note indicating any dispute with the proposed orders.

3. If there is any dispute, each of the parties has leave to apply for the purpose of fixing a date for further argument.

4. If there is no dispute as to the proposed orders, judgment be entered in accordance with the proposed orders. Catchwords: CIVIL PROCEDURE — court administration — court powers — recall of prior reasons in proceedings — circumstances — observations made per incuriam — court not yet functus officio — final orders yet to be made — whether power to recall based upon UCPR r 36.17 CONTRACTS — remedies — damages — assessment — quantum dependent on prior loan agreements — whether evidence capable of establishing terms of such loan agreements CORPORATIONS — formation — pre-registration contracts — requirements of Corporations Act 2001 (Cth), s 131 — whether evidence established that "a person" purported to enter a contract on behalf of or for the benefit of a company prior to registration — whether conduct of company shareholders or director capable of ratifying purported agreements after registration Legislation Cited: Conveyancing Act 1919 (NSW), s 66ZL Corporations Act 2001 (Cth), s 131 Conveyancing Legislation Amendment Act 2018 (NSW) Uniform Civil Procedure Rules (NSW), r 36.17 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 [COMPANY_5] v [COMPANY_6]; Babcock Australia Ltd v Eraring Energy (2003) 56 NSWLR 51; [2003] NSWCA 6 [COMPANY_8] v [COMPANY_11] (No 3) [2012] FCA 1438 Black v Smallwood (1966) 117 CLR 52; [1966] HCA 2 Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 [COMPANY_13] v [NAME_3]; DGF Property Holdings Pty Ltd v Butros [2018] NSWSC 344 [COMPANY_13] v [NAME_3]; [COMPANY_13] v [NAME_14] (No 2) [2018] NSWSC 1137 [COMPANY_13] v [NAME_3] (No 3) [2020] NSWSC 510 Ex parte [NAME_15]; [NAME_16] [1964-5] NSWR 58 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Kelner v Baxter (1866) LR 2 CP 174 Painaway Australia Pty Ltd v JAKL Group Pty Ltd (2011) 249 FLR 1; [2011] NSWSC 205 Re Express Engineering Works Ltd [1920] 1 Ch 466; All ER Rep Ext 850 [COMPANY_17] (in liq) v Robert Bosch (Australia) [COMPANY_10] [2000] NSWSC 32; 33 ACSR 680 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 Verschures Creameries Ltd v Hull & Netherlands Steamship Company Ltd [1921] 2 KB 608 Texts Cited: G [NAME_18], Law of Agency (LexisNexis Butterworths, 2014) [NAME_19], [NAME_21], P Watts, [NAME_20] and [NAME_22] on Agency (19th ed, 2010, Sweet & Maxwell) Category: Principal judgment Parties: [COMPANY_1] (Plaintiff) [NAME_23] (First Defendant) [NAME_25] (Second Defendant) Representation: Counsel: [redacted] [NAME_29] (Defendants)

Solicitors: [redacted] [NAME_32] (Defendants) File Number(s): 2015/105403 Publication restriction: Nil

Judgment

Introduction 1. This is the fourth judgment I have given in relation to these proceedings. [1] The first judgment, [2] published on 23 March 2018 (the First Judgment), concerned two proceedings in which [COMPANY_13] ([NAME_2]) was the plaintiff, namely, these proceedings (the Specific Performance Proceedings) and other proceedings, to which I shall refer as the Rescission Proceedings. Both proceedings arose out of a proposed subdivision of land situated in [ADDRESS], [ADDRESS], New South Wales (the Land). The defendants in the Specific Performance Proceedings are [NAME_33] and [NAME_35] (together the [NAME_36]). The [NAME_36] were also defendants in the Rescission Proceedings. The other defendants in the Rescission Proceedings were the purchasers (the Purchasers) under off-the-plan contracts made with [NAME_2] for the sale and purchase of lots in the proposed subdivision (the Sale Contracts).

2. It is relevant to know that [NAME_2] was incorporated on 17 September 2002 with an issued capital of four shares. [COMPANY_37] ([NAME_38]) held two of those shares, [COMPANY_39] ([COMPANY_39]) held one of the shares and [NAME_42] held the fourth share. [NAME_38] were entities associated with Mr [NAME_46], [NAME_49] and [NAME_53]. [NAME_58] and [NAME_59] have since died. It is convenient to refer to those five individuals as the [NAME_60]. In doing so, I do not intend to suggest any formal arrangement or agreement among them.

3. In the Rescission Proceedings, [NAME_2] asked the Court to make orders under s 66ZL(6) of the Conveyancing Act 1919 (NSW) (the Conveyancing Act) permitting it to rescind each of the Sale Contracts. [3] A relevant effect of s 66ZL was that, despite express provisions in the Sale Contracts, [NAME_2] could not rescind any of them unless it had obtained an order of the Court permitting it to do so. The [NAME_36] were joined as defendants in the Rescission Proceedings because [NAME_2] sought to recover from them costs that it may be required to pay to the Purchasers pursuant to s 66ZL. The Rescission Proceedings have now been finally resolved, except as to [NAME_2]'s claim for costs against the [NAME_36].

4. In the Rescission Proceedings, the Court ordered, pursuant to s 66ZL(6) of the Conveyancing Act, that [NAME_2] be permitted to rescind each of the Sale Contracts, subject to [NAME_2] making an offer in writing to the Purchasers to enter into new contracts for sale. [NAME_2] was ordered to pay amounts for the Purchasers' costs of the Rescission Proceedings. The orders contemplated that such new contracts for sale were generally to be on the same terms as the rescinded Sale Contracts, except that the price to be paid under any such new contract for sale was to be the price payable under the rescinded Sale Contract plus a sum calculated on the balance of the purchase price payable under the rescinded Sale Contract from 10 June 2016 until the date of acceptance of the offer (and the making of a new contract for sale) at the rate of 4.75% per annum less, in relation to each Purchaser, the costs that [NAME_2] was ordered to pay to such Purchaser. [4] The rationale for that arrangement was that the Purchasers had the possible benefit of a delay in paying the purchase price.

5. In the Specific Performance Proceedings, the assessment of damages remains for determination. The damages claimed by [NAME_2] include the costs that it was ordered to pay to the Purchasers.

6. The dispute between [NAME_2] and the [NAME_36] that is the subject of the Specific Performance Proceedings arose in connection with a deed between [NAME_2] and the [NAME_36] made on 17 December 2013 (the 2013 Deed) and an agreement made between [NAME_2] and the [NAME_36] on 22 October 2015 (the 2015 Agreement). The [NAME_36] owned part of the Land and each of those instruments was entered into in order to resolve earlier disputes between [NAME_2] and the [NAME_36] arising out of the proposed subdivision of the Land. The subdivision has now been completed and the various parcels in it have been transferred to the Purchasers or registered in the names of participants in the venture. 7. [NAME_2] claimed damages from the [NAME_36] on the basis that they acted in breach of the 2013 Deed and the 2015 Agreement and, in the First Judgment, I concluded that they had breached their obligations. [NAME_2] contends that the completion of the subdivision was delayed by reason of those breaches and that the delay led to [NAME_2]'s incurring additional outgoings by way of holding charges that they would not have incurred but for the delay alleged to have been occasioned by the breaches on the part by the [NAME_36].

8. In the First Judgment, I concluded that, by reason of the breaches on the part of the [NAME_36], progress with the subdivision was delayed during the period from 3 July 2015 to 16 May 2017. On the first date, an order was made under s 121B of the Environmental Planning and Assessment Act 1979 (NSW) as a result of the placement by the [NAME_36] of unauthorised landfill on their land. The effect of the order was to prohibit further work on the subdivision. On the second date, the Fairfield City Council (the Council) indicated that it was satisfied that the s 121B order had been complied with. [5]

9. On 23 March 2018, I directed [NAME_2] to notify the Court and the [NAME_36], within 14 days, of its calculation of the amount of damages to which it claims to be entitled in accordance with the First Judgment. The [NAME_36] were directed to notify the [NAME_2] within 14 days after receipt of such notification whether they wished to dispute that the calculation of such damages was made in accordance with the First Judgment. The matter was listed on 26 April 2018 for the purpose of making final orders. 10. [NAME_2] did not comply with the direction given on 23 March 2018 and the time to comply was extended to 7 May 2018. On that day, [NAME_2] served its calculation of damages. On 15 June 2018, the [NAME_36] served submissions in response to the calculation of damages by [NAME_2]. On 20 June 2018, [NAME_2] served an amended schedule of damages.

11. In oral argument on 21 June 2018, the [NAME_36] submitted that [NAME_2] was not entitled, in order to prove the holding charges claimed by it, to rely on certain accounting records that had been exhibited to an affidavit of [NAME_53] sworn on 24 November 2017 (the November 2017 Affidavit). [NAME_2] was granted an adjournment to 4 July 2018 to deal with the issues thus raised by the [NAME_36]. On 4 July 2018, [NAME_2] sought leave to reopen its case and to adduce further evidence as to its damages. [NAME_2] was directed to file and serve, no later than 30 July 2018, any evidence on which it wished to rely in support of its application to reopen, together with any further evidence upon which it would rely if leave to reopen were granted. The [NAME_36] were directed to file and serve evidence on which they wished to rely in opposition of the application to reopen. I also directed the filing of written submissions.

12. On 29 August 2018, [NAME_2] filed and served the evidence upon which it sought to rely if leave to reopen were given. The material was supported by two tables, together with copies of invoices, receipts, cheque butts, bank statements and similar records. On 19 October 2018, the [NAME_36] served a schedule in response to [NAME_2]'s material with comments as to why certain of the expenses particularised were not accepted by them as relating to the subdivision of the Land. On 23 October 2018, directions were given for the formulation of the questions in dispute and the exchange of written submissions. The parties took steps in accordance with those directions.

13. On the basis that leave was extended to both parties to adduce further evidence on all issues concerning the assessment and quantification of the damages claimed by [NAME_2], the grant of leave to [NAME_2] was not opposed by the [NAME_36].

Accordingly, on 1 February 2019, [NAME_2] was granted leave to reopen its case and adduce further evidence of damages.

14. The proceedings were set down for further hearing on 12 August 2019. After the close of evidence on that day, [NAME_2] sought, and was granted, a further adjournment to adduce further additional evidence. The proceedings were then set down for further hearing on 21 November 2019. On 21 November 2019 and 22 November 2019, I received further affidavit and oral evidence and received further documentary evidence. Leave was given to the parties to supplement the written and oral submissions received on those days with further notes and submissions limited to specific questions. I subsequently received that material from the parties, the final material being received on 4 December 2019.

Withdrawal of reasons 1. On 8 May, 2020, I published my third judgment in the Specific Performance Proceedings, which related to four outstanding questions concerning the assessment of damages to which [NAME_2] is entitled (the Third Judgment). [6] One of those questions was the extent to which [NAME_2] incurred loss consisting of interest at the rate of 8% was payable on funds provided to it for the purposes of the proposed subdivision. Relevantly for present purposes, I held as follows: [70] It is remarkable that quite significant sums of money were provided without any adequate record as to the terms upon which the advances were being made. Clearly enough, "investors" who provided funds after the first meeting of the [P]roposed [J]oint [V]enturers did so in the expectation of receiving a return on their "investment". It appears that most of the "investors" were associated in some way with the original four shareholders. Nevertheless, I consider that it is more likely than not that "investors" provided funds on the basis of the statements made to them by [NAME_62] that they would receive interest at the rate of 8% per annum on the amounts advanced. [71] There is no reason to doubt that [NAME_62] had authority from [NAME_2] to make arrangements with the "investors", including arrangements as to the payment of interest at the rate of 8% per annum on advances made by "investors". It was not suggested to [NAME_62] that his evidence with other "investors", from time to time was a fabrication. I accept that the advances by "investors", as distinct from advances by shareholders, were loans to [NAME_2] and that [NAME_2] is liable to pay interest on those loans at the rate of 8% per annum. … [99] It is more likely than not that some arrangement was made involving [NAME_58], on the one hand, and the other [P]roposed [[NAME_61]] on the other, whereby the imbalance in contributions by the [P]roposed [[NAME_61]] would be adjusted in some way by the payment of interest. It may be that the arrangement was to the effect that all advances made by [[NAME_60]] would bear interest at the rate of 8% per annum. However, I am not persuaded that any such arrangement was subsequently adopted or ratified by [NAME_2] when it was incorporated. I am not persuaded that [NAME_2] incurred a liability to pay interest on any funds provided prior to its incorporation. On the other hand, I am satisfied that "investors" who subsequently provided funds did so on the basis that the funds would bear interest at 8% per annum. However, there is no evidence as to the time when such interest was to be payable. It may therefore be reasonable to conclude that it was implied that the funds would be repayable when the project was completed and [NAME_2] was in a position to repay the advances from the proceeds of the sale of lots in the proposed subdivision.

1. I had not yet heard argument on the question of costs as between [NAME_2] and the [NAME_36] in relation to the Rescission Proceedings. I indicated that I would hear the parties on questions of costs as damages after all other issues have been resolved. I afforded the parties the opportunity of considering the Third Judgment and both parties then made further submissions in the light of the conclusions reached in the Third Judgment.

2. On 9 June 2020, [NAME_2] served a calculation of its damages dated 25 May 2020. The total claimed was $777,795.54, of which $372,856.73 consisted of interest at the rate of 8% per annum applied to the sum of $5,084,409.99 over the period from 16 June 2016 to 16 June 2017. On 24 June 2020, [NAME_2] served written submissions in support of those calculations, to which the [NAME_36] responded on 30 June 2020.

3. I then conducted a further oral hearing on 3 July 2020. The [NAME_36] now assert that, in the course of oral submissions, [NAME_2] attempted for the first time to rely on paragraphs [154]–[156] of [NAME_62]'s affidavit of 2 September 2019 (the September 2019 Affidavit) as evidence of an agreement made with "investors" who were not associated with the [NAME_60] to pay those "investors" interest at the rate of 8% per annum on advances made to [NAME_2] in connection with the proposed subdivision of the Land. The relevant paragraphs appeared under the subheading "Interest and interest payments by [NAME_2]" (the [NAME_56] Evidence). In the [NAME_56] Evidence, [NAME_62] said that he had located further documents, copies of which were annexed to the September 2019 Affidavit. 4. [NAME_62] asserted that he had found documents showing that interest at the rate of 8% per annum had been paid to "[COMPANY_63]" ([NAME_64]), a company owned by his parents. The documents relied upon consist of the following: * A cheque stub numbered "001185" dated 24 August 2012 recording a payment of $313,940 from an account of [NAME_2] to [NAME_64] on 24 August 2012. * A bank account position document in respect of [NAME_2]'s account with Australia and New Zealand Banking Corporation Limited (ANZ) containing a handwritten loan calculation; * A bank account statement of [NAME_64] evidencing a deposit of $319,907 on 27 August 2012; * Photocopies of cheques made out to [NAME_64] totalling $319,907 and a deposit slip dated 27 August 2012 reflecting the sum of the two cheques. [7] One of the cheques was in the sum of $313,940, drawn on [NAME_2]'s account with ANZ, numbered "001185" and dated 24 August 2012; and * A cheque stub numbered "001185" dated 24 August 2012.

1. In the September 2019 Affidavit, [NAME_62] asserted that the handwriting on the ANZ account position document was his own and recorded a calculation for interest payable to [NAME_64] for funds that it had lent to [NAME_2]. The handwritten note was as follows: "30/01/12 [NAME_64] $300,000 to [NAME_2] 28/08/12 = 5808 x 8% = $13,940 Dollars 1. Take $300,000 From [NAME_66] into [NAME_2] P/L. And then repay [NAME_64] $313,940. ANZ Cash MGT Acc.

2. Take $350,000 from [NAME_66] into [NAME_67]."

1. The cheque stub numbered "001185" contained the following handwritten material: "24/08/2012 [NAME_64] P/L Loan Repayment For paying out United Church Loan $300,000.00 Interest $13,940.00 Repayment $313,940.00 001185".

1. The September 2019 Affidavit also referred to an internal email of [NAME_62]'s accountancy practice, [COMPANY_69] ([NAME_68]), dated 10 December 2013 (the [NAME_68]). The [NAME_68] provided as follows: "10/12/2013 [NAME_70], [NAME_71] has $238,190.50 In our trust account. He has agreed to lend us the money at 8% interest. Please write out a cheque in this sum to [COMPANY_1]. Give cheque to [NAME_74]. Regards [[NAME_62]]". The description of the recipient in the [NAME_68] suggests that the recipient was a member of staff at [NAME_68].

1. Finally, [NAME_62] referred to an internal file note of [NAME_68] ([NAME_68]) detailing the calculations for the repayment of a loan that he asserted was made by himself to [NAME_2] in the sum of $200,000. The [NAME_68] also referred to the loan from [NAME_75] referred to in the [NAME_68] of 10 December 2013. The [NAME_68] was as follows: "Client: [NAME_76] from [NAME_77]: 29/10/12 $200,000. @8%. 409 days Interest = x $200,000 x 8% = $17,920 Total Repayment = $217,920 [NAME_71] From [NAME_68] trust A/C = Code 1785A $238,190.50". 1. [NAME_2] asserts that the September 2019 Affidavit was served some two and a half months before the hearing on 21 and 22 November 2019 and [NAME_62] was not cross-examined about the assertions made in it. However, the [NAME_36] complain that that the [NAME_56] Evidence was raised "very belatedly" and should have been raised during the hearing on 21 and 22 November 2019, in which the question of [NAME_2]'s entitlement to damages was extensively considered. They complain that the point should, "at the very least" have been raised in [NAME_2]'s written submissions of 24 June 2020.

2. The [NAME_36] assert that, on 24 November 2017, [NAME_62] had conceded in cross-examination that he did not have authority from [NAME_2] to enter into "investor agreements" and that he had entered into agreements with prospective "investors" only "as an investor in [NAME_2]". They claim that that assertion had been made in their submissions of 20 November 2019 and was not responded to by [NAME_2]. The heart of their complaint is that [NAME_2] now seeks to relay on the [NAME_56] Evidence as a belated answer to that submission.

3. The [NAME_36] contend that what they characterise as the "new" argument based on the [NAME_56] Evidence may have the ability to affect the Court's finding at [71] of the Third Judgment. [8] They claim, therefore, that it is appropriate that they be permitted now to make the submissions that they would have made had the issue been addressed prior to the hearing on 21 and 22 November 2019.

4. Those contentions indicated that further argument may be required in relation to the question of interest and, in that light, the parties were informed that the proceedings would be fixed for further directions for the purpose of considering whether the Third Judgment should be withdrawn and the question of interest be reheard.

Accordingly, on 21 July 2020, I directed the parties to file and serve further submissions on that question. Pursuant to that direction, [NAME_2] filed submissions on 3 August 2020 and the [NAME_36] responded to [NAME_2]'s submissions on 5 August 2020. [NAME_2] filed submissions in reply on 19 August 2020. 5. [NAME_2] accepts that the Court can recall any part of its reasons where appropriate if the Court is not functus officio. I am clearly not, since I have not yet made any final orders in the Specific Performance Proceedings. However, [NAME_2] contends, it would be inappropriate to do so merely because counsel for the [NAME_36] wishes to raise matters that have already been the subject of argument. The [NAME_36] characterise the question as whether the Court should withdraw the reasons of 8 May 2020 in accordance with r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW), which allows the Court, of its own motion, to vary a judgment if an error has arisen from an accidental slip or omission. I do not consider that reliance need be placed on that rule. Until such time as final orders have been made, the Court is in a position to reconsider any reasons for conclusions that it has expressed.

6. The [NAME_36] contend, in effect, that the Third Judgment contains an error in so far as it did not address the question of [NAME_62]'s authority to enter into agreements on behalf of [NAME_2] with the "investors". The [NAME_36] do not assert that [NAME_2] has never previously referred to the [NAME_56] Evidence. Rather they contend that 3 July 2020 was the first occasion on which [NAME_2] attempted to use the [NAME_56] Evidence to support a contention that [NAME_62] had made agreements with "investors" on behalf of [NAME_2] to pay interest on their loans at the rate of 8% per annum. Thus, the [NAME_36] contend, the submissions previously made by [NAME_2] indicate that all that [NAME_2] had previously said about the [NAME_56] Evidence was that "payments" had been made by "investors" and that, in one instance, a "repayment" had been made to an "investor". Thus, the [NAME_36] contend, it was not until the oral argument on 3 July 2020 that [NAME_2] referred to the [NAME_56] Evidence as establishing an actual agreement entered into by [NAME_62] on behalf of [NAME_2] with "investors" to pay interest at the rate of 8% per annum. 7. [NAME_2]'s submissions assert that the [NAME_36]' contention that [NAME_62] did not, by his own admission, have authority from [NAME_2] to enter into the alleged "investor agreements" should be characterised as a "second attempt" and a "reprised argument". The [NAME_36] suggest that such references are a concession that they fairly and squarely raised the lack of authority of [NAME_62] to enter into any agreement with "investors" on behalf of [NAME_2]. The [NAME_36] reject any suggestion that they are impermissibly attempting to raise an argument that was not previously raised. 8. [NAME_2] disputes that its reliance at this stage on the [NAME_56] Evidence involves a new argument and asserts that its contention as to agreement to pay interest at 8% to investors was squarely raised in its submissions of 21 November 2019 and in oral submissions on 22 November 2019. It asserts that it also raised the contention in its submissions in reply on 29 November 2019. 9. [NAME_2]'s submissions of 21 November 2019 stated as follows: "In any event, the evidence of [NAME_78], [NAME_45] and [NAME_52] conclusively shows the 8% agreement … The documents support it. A contemporaneous payment in that amount referred to in [the September 2019 Affidavit] at [154] ff supports it." In the course of oral submissions on 22 November 2019 Counsel for [NAME_2] said: "On the loan, there is the objective evidence, I did mention it earlier, your Honour, but just to make sure your Honour hasn't forgotten about it, the payments that were made by [NAME_2] in respect of [NAME_64] … which was [NAME_56]'s … and there was also a payment made to [NAME_62], and they were contemporaneous records of the 8%."

1. After extensive oral submissions on 22 November 2019, followed by written submissions, [NAME_2]'s submissions of 29 November 2019 relevantly said: "Implied or inferred ratification by making loan repayments at 8% If it is accepted that the money received by [[NAME_2]] from the "investors" was not donations, it is highly likely that they were loans. If they were loans, it is highly unlikely that they were made on an interest-free basis and highly likely that they were received on the basis that interest at the rate of 8% would be paid as is being told to the court by [NAME_56], [NAME_52], [NAME_45] and is supported by some of the loan repayments: see for example those loan repayments in [154]-[156] of [the September 2019 Affidavit]."

1. In the light of those submissions, [NAME_2] contends, there was no new argument or new issue arising out of the oral submissions on 3 July 2020. [NAME_2] asserts that none of the [NAME_36]' submissions arise from the reference by Senior Counsel for [NAME_2] on 3 July 2020 to the [NAME_56] Evidence. [NAME_2] asserts that the [NAME_36] are having "a second bite of the cherry". 2. [NAME_2] contends that no distinction should be drawn between monies lent by the [NAME_60] and entities associated with them, on the one hand, and monies lent by others pursuant to loans solicited by [NAME_62], on the other.

Accordingly, it says there is no basis for recalling any of the Third Judgment to reflect such a distinction given the findings at [70], [71] and [99].

3. I am satisfied that the observation in the Third Judgment that there was no reason to doubt that [NAME_62] had authority from [NAME_2] to make arrangements with the "investors" was made per incuriam and should be withdrawn.

Accordingly, I withdraw so much of the Third Judgment as addressed the question of interest as damage suffered by [NAME_2], namely, paragraphs [22] to [99]. My conclusions on the question of interest, having regard to the further submissions from the parties, now follow. I shall then deal with the outstanding question of the costs of the Rescission Proceedings.

Agreement to pay interest 1. The question of interest was not perfectly articulated by [NAME_2] in its pleadings. In its statement of claim filed in the Specific Performance Proceedings on 14 October 2016, [NAME_2] claimed an order that the [NAME_36] pay damages for breach of the 2013 Deed, "including holding costs" in relation to lots within the proposed sub-division. The holding costs were said to include "interest charges". The statement of claim then alleged that, as a result of breaches by the [NAME_36], [NAME_2] suffered loss and damage including "increased interest and other holding expenses" in relation to the Land. In its points of claim filed in the Rescission Proceedings on 17 October 2016, [NAME_2] alleged that it had liabilities including "approximately $100,000 for land tax, legal fees and development costs" and was liable for "accrued interest on the loans of approximately [$1.2 million]". While there are those references to interest in the pleadings, it is significant that there is no reference in the pleadings to any agreement made by [NAME_2] with any person to pay interest on any loans. Further, there is no reference to the rate of 8% per annum or any other rate of interest.

2. Much more significantly, the alleged obligation of [NAME_2] to pay interest on the funds provided by "investors" was not recorded in any contemporaneous record of [NAME_2] and there was no evidence that any documentary record of a right to receive interest or an obligation to pay interest, at the rate of 8% or any other rate, was ever made. For that reason, I observed in the First Judgment that it was by no means clear that [NAME_2] has any liability to pay interest to "investors" who had provided funds for the proposed development. [9]

3. Arrangements for [NAME_2] to pay interest to "investors" at the rate of 8% per annum are said by [NAME_2] to have been made by [NAME_62]. Significantly, [NAME_62] was neither a shareholder nor a director of [NAME_2]. However, one shareholder of [NAME_38] was [COMPANY_81] ([NAME_80]), in its capacity as trustee of the [NAME_56] family trust. [NAME_62] was the sole director of [NAME_80]. [NAME_82]'s wife, [NAME_83], was the other shareholder of and was the only director of [NAME_38]. On 1 August 2012, [COMPANY_84] (Saltnpepper) purchased the shares in [NAME_38] held by [NAME_80]. The relationship, if any, of Saltnpepper to the [NAME_60] is unclear. [NAME_82] is a director of Saltnpepper.

4. Before dealing with the alleged arrangements for interest, it is necessary first to say something more about the circumstances surrounding the formation and ownership of [NAME_2]. In his affidavit of 30 August 2017, [NAME_82] said that the genesis of [NAME_2] occurred when [NAME_58] located a parcel of real estate in which he wanted the [NAME_60] to invest. [NAME_58] first approached [NAME_62] to find out if he may be interested in joining the investment and [NAME_62] then approached [NAME_82] as well as [NAME_59]. [NAME_82] said that [NAME_62] explained that [NAME_58] needed extra funds to proceed with the investment and asked if the four together would be interested in becoming involved. [NAME_82] said that they all agreed and accordingly [NAME_2] was registered to purchase the real estate and then proceed with the subdivision development that has given rise to these proceedings. [NAME_82] said in that affidavit that [NAME_2] had no money of its own and that all of its "capital" had come from loans from shareholders and other "investors", who included small business clients of [NAME_82]'s accountancy practice, who had surplus cash and had lodged the surplus cash with the accountancy practice for investment.

5. While, in earlier affidavits, [NAME_82] referred in some detail to "loans" by "investors", he did not refer to any agreement to pay interest. It was only in his third affidavit, the September 2019 Affidavit, that [NAME_82] first asserted that there was an agreement concerning interest at the rate of 8% per annum. [NAME_85] has also now given evidence regarding an arrangement as to interest. I shall outline separately the evidence given by each witness as to the alleged arrangements to pay interest.

The evidence of the pre-incorporation discussions 1. The evidence-in-chief of the [NAME_60] about the proposed arrangements was given by affidavit. That was followed by cross-examination, where possible. The evidence was often confused and ambiguous. I shall deal separately with each witness.

[NAME_58] 1. [NAME_58], who gave evidence at the hearing that resulted in the First Judgment, was, at relevant times, a director of [NAME_2]. In his affidavit of 9 February 2017, [NAME_58] referred to balance sheets and profit and loss statements as well as taxation returns of [NAME_2] for the years ended 30 June 2015 and 30 June 2016. However, those records do not advance the matter any further. The balance sheet of [NAME_2] as at 30 June 2016 showed current liabilities for "trade and other payables" of $43,263.06 and non-current liabilities for "bank and other loans" of $10,420,061.57. There is no indication that any part of those liabilities was for interest. The profit and loss statement for the year ended 30 June 2016 showed income from interest received of $1,737.11 and expenses for interest paid of $719,622.82. No detail is shown in the records as to the recipients of the interest paid. There is no reference to any agreement to pay interest on borrowings from "investors" at the rate of 8% per annum or any other rate. [NAME_58] referred expressly to "the investor loans", he gave no evidence of there being any agreement to pay interest to "investors" at the rate of 8% per annum or any other rate.

2. In his affidavit of 10 March 2017, [NAME_58] asserted that [NAME_2] had expended in the vicinity of $9,269,000 on the development of the Land and that that sum included the purchase price of various parcels of land and legal costs in funding proceedings. The affidavit referred to copies of accounting records of [NAME_2]. [NAME_58] refers to [NAME_2] funding the costs by borrowing funds from private investors, there is no mention of interest in the affidavit, or in any of the accounting records. As I have said, [NAME_58] has since died.

[NAME_62]

1. In his November 2017 Affidavit, [NAME_62] said that he was responsible for the incorporation of [NAME_2] in his capacity as an accountant and that [NAME_2] was incorporated for the purpose of undertaking property development. He said that the development that is the subject of these proceedings was the first development undertaken by [NAME_2].

2. In his November 2017 Affidavit, [NAME_62] said that, in approximately 2003, he attended a meeting with [NAME_58], [NAME_82], [NAME_85] and [NAME_59]. He said that, at the meeting, he said words to the following effect: "We are all going to have to inject money into this company. I propose that the interest rate that this money be lent will be 8% per annum unless we agree to change the interest rate later on. Everyone agree?" He said that all present agreed to that proposal.

1. In his November 2017 Affidavit, [NAME_62] said that the financial accounts for [NAME_2] for the period ended 30 June 2016 were prepared by a staff member of his firm, that it was his practice to review accounts prepared by his staff members in relation to clients that he was managing and that [NAME_2] was one of the clients that he was managing at the time. [NAME_62] said that, in the week before swearing his affidavit, after reviewing the accounts more carefully, he had formed the view that the accounts were incorrect, as the non-current liabilities failed to set forth accurately the loan liability that should have been included as payable by [NAME_2]. He said that [NAME_2] operated on an accruals basis and that, in applying that methodology to [NAME_2]'s accounting records, income and expenses were brought to account when they are accrued, whether or not revenue was actually received and whether or not expenses were actually paid. [NAME_62] said that, having reviewed the accounts of [NAME_2] for the years 2013 to 2017, he had formed the opinion that the accounts did not accurately reflect a true and fair view of [NAME_2] because of the incorrect figure for bank and other loans. [NAME_62] identified copies of accounts for the years 2013 to 2017 that had been prepared on 23 November 2017. 2. [NAME_62] also said in his November 2017 Affidavit that, after the initial investment of money, as referred to in the meeting in 2003, he was involved in the negotiation of every other loan with the "investors" and had separate conversations with each of the principals of the "investors" other than those where he himself was the principal. He said that, during those occasions, it was his standard practice to say to each prospective "investor" words to the following effect: "Any funds which you advance would be used in the development that [NAME_2] is undertaking in [ADDRESS]. [NAME_2] will pay you interest at 8% per annum. The interest payments and the repayment of principal will not occur until the sales of the lots settle after the subdivision has been completed." He said that all of the "investors" said words to the effect that they agreed. 1. [NAME_62] said that, for various reasons, some "investors" later requested their money back. He asserted that, in those cases, the funds were repaid with interest.

2. In his September 2019 Affidavit, [NAME_62] referred to documents from the business records of [NAME_2], saying that, although [NAME_2] had not been incorporated at the time, the documents showed how the amounts contributed for the purchase of the Land were accounted for after [NAME_2] was incorporated. In that affidavit, [NAME_62] said that, during the meeting in 2003, he raised the fact that [NAME_58] was not in the best financial position to be able to contribute equally to the development. He said words to the following effect: "[[NAME_58]] is not going to be able to contribute to the development of [ADDRESS] in the same proportion as the rest of us. … Any loan funds should attract interest and I'm thinking of about 8% as it is an unsecured loan and I think that interest rates are about 7% of the moment. … Loan repayments and interest payments will not be paid until the project is finalised and settlement proceeds are realised." [NAME_62] said that those present agreed to his proposal.

1. In the course of cross-examination on 24 November 2017, [NAME_62] was asked whether it was his evidence that what occurred at the meeting that he described in his affidavit was not recorded in any minutes of meeting. His response was: "No, because in 2003, the company wasn't even established, so we got together, we decided to buy property and the company wasn't established at that point of time, so, [NAME_87] brought this opportunity to us and we got together and we had a meeting." In answer to a question about not mentioning in his affidavit that [NAME_2] had not yet been incorporated, [NAME_62] replied: "Well I'm sorry, you know I was talking about - it's always in relation to the [NAME_2]. So, when we had that meeting we hadn't purchased the property at that time, we haven't even exchanged contracts and the company wasn't established." Later in his cross-examination, [NAME_62] was asked about the [NAME_89] and said they were at the initial meeting. When asked whether that meeting was a shareholders' meeting of the Company, his response was: "The company wasn't formed at that time, yes."

1. In cross-examination on 12 August 2019, [NAME_62] agreed that he kept no documentary record at all of any agreement to pay 8% on the "investment loans". He also agreed that his evidence was that any agreement occurred at a time when [NAME_2] had not been incorporated.

2. In cross-examination, [NAME_62] disagreed with the proposition put to him that it was decided at the meeting that [NAME_58] would have to pay 8% on the shortfall in his contributions compared to the other shareholders' contributions. [NAME_62] said, "the 8% was about any monies advanced to the company in excess of other people's loans". When asked whether he accepted that the discussion as to a rate of 8% was about the interest that [NAME_58] would incur on the difference between [NAME_58]'s loan account and the loan accounts of the other shareholders, [NAME_62] responded: "No, no; all the shareholders in the company, or their related entities, any inequalities in the loan would be - will be charged 8% interest." [NAME_62] agreed that at the meeting in 2002, [NAME_58] said: "If I have to pay interest because my share is being paid by others and it is adjusted accordingly then that is fair enough … As long as it's adjusted we are happy to carry it. How about the rest of you? [NAME_62] agreed that everybody accepted that that would be fair. However, he said that the way it was calculated was that "it comes out of the company, it's like getting a bank loan, you pay the interest back to the Bank". He asserted that that is what was said. He denied that the conversation was in respect of [NAME_58]'s shortfall compared with the others.

[NAME_82]

1. In his affidavit of 2 September 2019, [NAME_82] said that, in around 2003, he attended a meeting with [NAME_90], [NAME_56], [NAME_86] and [NAME_43], at which they "discussed that a new company would be incorporated for the proposed development at [ADDRESS], [ADDRESS]". He also said that they discussed the funding of the development. He said they also discussed "the situation that [NAME_58] would not be able to match the contributions" to be made by him ([NAME_82]), [NAME_62] and by [NAME_86] and [NAME_43] because [NAME_58] was not in a financial position to contribute an equal share. [NAME_82] said that they discussed that "requiring that interest be paid would be a reasonable way of adjusting" for [NAME_58]'s shortfall. [NAME_82] said that [NAME_62] said words to the following effect: "You know that [[NAME_58]] is not able to put money in to the same extent that we are so I think interest is a fair way of balancing these unequal contributions." [NAME_82] said that they all agreed that that was a fair way of dealing with "the uneven loans" to the proposed new company and that [NAME_62] then said words to the following effect: "We need to fund the development so the partners should be entitled to interest on the investment which I think should be based on comparable rates and maybe a little bit higher because the loans will be unsecured loans. How about 8%?" [NAME_82] said that the others agreed.

1. In his cross-examination on 12 August 2019, [NAME_82] was asked questions about his affidavit, in which he described his initial involvement in the development of the Land. He was asked whether he or [NAME_62] said: "As long as it's adjusted, we are happy to carry it." He responded: "On the basis that it was adjusted by the company paying interest to the investors, yes, that's correct." When asked whether the company did not exist at that stage, he responded: "Well, it was going to. That's a foregone conclusion." He then said it was irrelevant that the company did not exist at that stage, saying: "There is many, many businesses entered into where the companies are ratified after the business has been discussed and agreed to." When it was suggested to him that there never was any such ratification his response was: "Of course there was. The company was set up." 1. [NAME_82] then agreed that he knew what a shareholders' resolution ratifying earlier acts made by the company is. When it was suggested that there never had been a shareholders' resolution in respect of [NAME_2], his response was: "We were an association of friends". He also said: "There was no formal resolution written down." 1. [NAME_82] agreed in the course of that cross-examination that he had never been at a shareholders meeting of [NAME_2] at which a resolution had been passed in respect of 8% interest on loans. [NAME_82] also agreed that he has never seen anything in writing recording any agreement made by the shareholders of [NAME_2]. When asked whether he had ever been present when a resolution had been passed in respect of ratification of any agreement for [NAME_2] to pay 8% interest on loans, his response was "no, purely informal". He agreed that the most that he could recall was "the meeting in 2003", at which those present discussed, first, a shortfall on the part of [NAME_58] being covered by the others and, secondly, a discussion about interest of 8% that was somehow going to equalise that shortfall. [NAME_82] agreed that, to his knowledge, that was "the beginning and the end" of any agreement between the [NAME_60] as to the payment of interest in respect of monies borrowed by [NAME_2].

2. In cross-examination during the hearing on 21 November 2019, [NAME_82] agreed that there was a discussion at the meeting to the effect that [NAME_58] did not have as much money as the rest of them. He said that they did not discuss that [NAME_58] would pay interest on any shortfall. [NAME_82] rejected the proposition that [NAME_58] said that it would be fair enough if he had to pay interest because his share was being paid by others. [NAME_82] said that that would have implied that the others were lending [NAME_58] money to put in to the project and that that was never discussed. He said that he or [NAME_62] said that it would "be adjusted" by the proposed company paying interest to "the investors".

[NAME_91]

1. As I have said, [NAME_43] has since died. In his affidavit of 2 September 2019, [NAME_86] said that he recalled that, during 2003, he was present at a meeting at the [NAME_92] with his brother [NAME_43], together with [NAME_62], [NAME_82] and [NAME_58]. [NAME_91] said that the meeting was to discuss the development to be undertaken on the Land. He said that the discussion was that the development was to be undertaken under a company name and all of those present were to receive shares "in this new company". 2. [NAME_91] said in his affidavit that, during the meeting, those present discussed how the development was to be funded and the way in which they would need to deal with the fact that [NAME_58]'s contribution to the development would be less than the others. [NAME_91] said that that issue was raised by [NAME_62] and that that was another reason why interest and the rate of interest was discussed. He said that [NAME_58] was not in a position to contribute funds in the same proportion as the others and they all realised that they would need to carry a component of his contribution throughout the development. He said that [NAME_62] said that [NAME_58] would not be able to put in as much money as the rest of them so they would need to "carry him" and the way to deal with that was "for interest to be paid". 3. [NAME_91] said that [NAME_58] said: "What can do if I cannot put in any money. If I have to pay interest because my share is being paid by others and if it is adjusted accordingly then that is fair enough." [NAME_91] said that either [NAME_62] or [NAME_58] said words to the following effect: "As long as it is adjusted, we are happy to carry it. How about the rest of you?" [NAME_91] said that he and his brother agreed that that was "fair". [NAME_91] said that either [NAME_62] or [NAME_82] said words to the following effect: "Because the company will need to borrow the money it should pay interest. I suggest that the interest should be 8% because that is slightly above market." [NAME_91] said that he and his brother and [NAME_82] agreed with that proposal and that [NAME_58] said words to the following effect: "We have to do what we need to do and get the job done so the 8% is fair."

1. In cross-examination, [NAME_91] said that there was a discussion about the funds that had to be borrowed "to carry" [NAME_58]. When asked how much they were going to have to borrow to carry [NAME_58], [NAME_91] responded "it was 8%", a totally unresponsive answer. When pressed, [NAME_91] said that he did not know at the time how much they needed to borrow. He then said that the amount that was going to be borrowed was not discussed. [NAME_91] said that there was discussion about the amount of interest needed to be incurred and said, "the amount that was suggested was 8%". [NAME_91] said that [NAME_62] said: "It was put down that we needed to borrow funds, and at the time interest rates were between 7 to 8%, and we agreed to carry the amount, and it was put to the table at 8%, and everybody agreed."

1. When asked whether [NAME_58] said that he had to pay interest of 8% on the shortfall of his share, [NAME_91] responded "of his share that was borrowed, yes". [NAME_91] was then asked whether the conversation was about the others putting in more than [NAME_58] and [NAME_58] agreeing to pay 8% on the shortfall on what he was putting in. [NAME_91] agreed that they were all going to share equally in the profits of the proposed development "as long as the interest was calculated". He was asked whether it was agreed at the meeting that anybody who put in less than the other shareholders were putting in had to pay interest on their shortfall. [NAME_91] responded that it was [NAME_58] who "needed the shortfall". It is difficult to make sense of the evidence given by [NAME_91].

Pre-incorporation discussions 1. The [NAME_36] made submissions both orally and in writing concerning the alleged arrangements between the [NAME_60] that were said to have been made before the registration of [NAME_2]. As indicated above, evidence was given by several witnesses that a meeting of the [NAME_60] took place in around 2003, at which discussions took place concerning their proposed contributions. Each said that the meeting took place before [NAME_2] was incorporated. All of the evidence given by those associated with [NAME_2] asserted that the first meeting of the [NAME_60] occurred before the registration of [NAME_2], although each of them said that it was in around 2003. However, [NAME_2] was in fact registered on 17 September 2002, as evidenced by a document issued by the Australian Securities and Investments Commission (ASIC). 2. [NAME_62] first volunteered during cross-examination the fact that [NAME_2] had not been incorporated when the alleged arrangement involving payment of interest at the rate of 8% was said to have been made. As summarised above, that was confirmed by other affidavit and oral evidence from witnesses called on behalf of [NAME_2].

3. On 22 November 2019, the [NAME_36] submitted that, given the evidence that the arrangement about the payment of interest had been made prior to the incorporation of [NAME_2] and given that there was no evidence of ratification of that agreement, [NAME_2]'s claim for damages arising from the alleged agreement must fail. On the same day, [NAME_2] requested further time to make submissions concerning ratification and that request was granted.

4. On 29 November 2019, additional submissions on ratification of the alleged arrangement concerning interest were filed on behalf of [NAME_2]. In those submissions, [NAME_2] did not challenge the evidence of its own witnesses that the agreement was made before incorporation of [NAME_2]. Rather, the submission argued in favour of express and implied ratification of the alleged arrangement. On 4 December 2019, submissions in response on the question of ratification were filed on behalf of the [NAME_36]. Those submissions also assumed the correctness of the evidence of [NAME_2]'s witnesses that the alleged arrangement was made before [NAME_2] was incorporated.

Timing of pre-incorporation meeting 1. On 9 April 2020, the Court drew the parties' attention to the records of ASIC that indicated that the registration of [NAME_2] occurred on 17 September 2002. [10] That prompted submissions on behalf of the [NAME_36] on 15 April 2020 setting out in detail the evidence of the witnesses called by [NAME_2] confirming that the agreement concerning interest was alleged to have taken place prior to the incorporation of [NAME_2]. That evidence was quite unequivocal and the references to the first meeting of the [NAME_60] being "about 2003" was much more likely to have been an error. The [NAME_36] contended that the references to 2003 as the date of the first meeting of the [NAME_60] must have been mistaken and that the meeting probably took place about mid-2002, before the registration of [NAME_2]. 2. [NAME_62] attached to the November 2017 Affidavit a document (the Summary) that he described as "a [NAME_68] summary in respect of loans made to [[NAME_2]], from the records of [[NAME_2]]". The Summary is headed as follows: Client: [[NAME_2]] Balance Date: 2004-2017 Subject: Loan Reconciliation Summary The Summary shows dates on which advances were said to have been made to [NAME_2] by each "investor" set out in the List. Significantly, no reference is made in the Summary to interest or any liability for interest.

1. The first entry in the Summary is as follows: [NAME_93] $2,368,700.45 13/01/2003 $2,357,759.33 Purchase of property – [ADDRESS]" 9/04/2005 $10,941.12 30/06/2016 $2,368,700.45

"[NAME_52][,] [NAME_56] & [NAME_45]" are shown in the Summary as having a balance of $2,368,700.45 as at 30 June 2016. That entry suggests that three of the [NAME_60] advanced the purchase price for the Land, but [NAME_58] did not. That is explained by the evidence referred to above that [NAME_58] was not able to provide his share.

1. The contract for the purchase of the Land by [NAME_2] was entered into on 2 December 2002, when a deposit in the sum of $262,500 was paid. Completion took place on 15 January 2003. Neither the deposit nor the purchase price was paid out of [NAME_2]'s account with ANZ. I have referred above to the first entry in the Summary, which is dated 13 January 2003, recording a credit to "[NAME_52][,] [NAME_56] & [NAME_45]" in the sum of $2,357,759.33. It beggars belief that [NAME_2] would have committed to buying the Land before arrangements were in place with the [NAME_60] for the contribution of funds to enable it to complete the purchase. It is clear that the first meeting of the [NAME_60] occurred sometime during 2002 and prior to the registration of [NAME_2] in September 2002. The evidence summarised above would otherwise be nonsensical.

2. In the light of that evidence, it is clear that the witnesses called on behalf of [NAME_2] were mistaken as to the time of the first meeting of the [NAME_60]. That is easily understood in circumstances where any such meeting occurred some 14 or 15 years before the evidence was given. Clearly, the evidence by the witnesses, that a meeting occurred in 2003 before the registration or incorporation of [NAME_2], was wrong in one respect or another. It is much more likely that the mistaken recollection was as to the date of the meeting rather than the order of events, namely, whether the meeting was before or after the registration of [NAME_2].

3. In written submissions filed on behalf of [NAME_2] following the Court's invitation referred to above, complaint is made that the question of the date of the first meeting of the [NAME_60] was not an issue that was raised by the [NAME_36] in the pleadings. [NAME_2] also complains that the question of when any agreement concerning the rate of interest was made was not an issue foreshadowed in opening submissions and precise evidence about the question was not adduced because it was not known to be an issue. That complaint on the part of [NAME_2] is without foundation. It must be remembered that this question has arisen in the context of the grant of an indulgence to [NAME_2] to reopen by reason of a misunderstanding as to whether or not the original hearing was to cover all issues, including assessment of damages.

Terms of pre-incorporation meeting agreement 1. The position in relation to the [NAME_60] is quite unclear. It is necessary to draw a distinction between the original contributions made by the [NAME_60], on the one hand, and subsequent contributions by "investors", on the other. I accept that there was a discussion at the first meeting of the [NAME_60] in which an arrangement was discussed whereby [NAME_58] was to be treated as an equal principal notwithstanding that he was not in a position to contribute his fair share of the funds necessary to begin the proposed development. However, the terms of the arrangement are quite obscure. Some evidence suggests that the shortfall was to be equalised by treating all contributions by the [NAME_60] as loans to the proposed company, which would bear interest at the rate of 8% per annum.

2. However, [NAME_91]'s evidence suggests that the imbalance in contributions was to be equalised by [NAME_58] paying interest on the shortfall in his contribution. On that basis, the interest payable by [NAME_58] on his shortfall would be payable to the other shareholders rather than to [NAME_2]. I am simply not persuaded that it is more likely than not that an arrangement was made that had legally binding effect that the proposed new company would have a liability to pay interest to the [NAME_60] on funds provided by them for the purchase of the Land. I am unable to make a finding as to the extent to which, if at all, [NAME_58] agreed to pay interest on the shortfall in his original contribution.

3. Thus, a distinction should be drawn between the advances made by the [NAME_60], on the one hand, and advances made by other "investors". That is to say, the intended profit from the venture would be shared among the shareholders of [NAME_2]. There has been no suggestion that the other "investors" were to share in the profit. It is unclear whether the arrangements whereby the [NAME_60] were to contribute equally were to be distinguished from the arrangements with other "investors".

Ratification of alleged agreement between [NAME_60]

1. It is clear that the arrangement among the [NAME_60] occurred prior to the incorporation of [NAME_2]. The [NAME_36] contend that the evidence as to the arrangements made during the discussions at the first meeting of the [NAME_60] would not lead to a finding that the arrangements were binding on [NAME_2]. It is common ground that there was no written record made either at the time when the alleged arrangements were entered into, or after the registration of [NAME_2], that purports to record those arrangements. More particularly, it is common ground that there was no meeting of the directors of [NAME_2] at which the arrangements were ratified or adopted. In the absence of any evidence of adoption or ratification by [NAME_2] of the arrangements made at the first meeting of the [NAME_60] for the payment of interest at 8% per annum on funds advanced to [NAME_2] by [NAME_61] or companies associated with them, the question is whether the evidence supports a conclusion that the actions of [NAME_2] and those who participated in the first meeting of the [NAME_60] were sufficient to give rise to a finding that the alleged arrangements were in fact ratified or adopted by [NAME_2].

2. Under the general law, a contract made on behalf of a non-existent company does not bind the company after incorporation and a company could not ratify a contract made prior to its incorporation. [11] Section 131 of the Corporations Act 2001 (Cth) (the Corporations Act), which deals with contracts before registration of a company, was enacted to overcome what was perceived to be a difficulty in that regard.

3. Section 131(1) relevantly provides that, if a person purports to enter into a contract on behalf of or for the benefit of a company before it is registered, the company becomes bound by the contract and is entitled to its benefit if the company, or a company that is reasonably identifiable with it, is registered and ratifies the contract within a reasonable time after the contract is entered into. Section 131(2) provides for liability of a person to pay damages to each other party to the pre-registration contract if the company is not registered. Under s 131(4), if a company ratifies the pre-registration contract but fails to perform all or part of it, the Court may order the person who entered into the contract on behalf of the company to pay all or part of the damages that the company is ordered to pay. 4. [NAME_2] contends that the arrangement to pay interest at the rate of 8% on funds provided for the subdivision project was ratified expressly by the shareholders or by its sole director, [NAME_58]. Alternatively, [NAME_2] says, the ratification of the arrangement is to be inferred from the fact that it has taken legal proceedings, by continued borrowings or by accounting for the payments received as loans. However, because an agreement made before the incorporation of a company cannot be ratified under the general law, it is necessary for [NAME_2] to establish the criteria set out in s 131 of the Corporations Act in order to demonstrate ratification. In the absence of establishing that there was an agreement with an identifiable person, within the meaning of s 131(1) of the Corporations Act, there was no implied or inferred ratification.

5. In cross-examination at the hearing that led to the First Judgment, [NAME_62] agreed that the shareholders of [NAME_2] had never resolved to pay interest on any loans made to it. He also said that he was not aware whether [NAME_58] made any agreement. He said that there was no shareholders' meeting called and it was all "before the company was established". [NAME_62] also said that [NAME_58], the only director of [NAME_2], had commented a number of times on the fact that [NAME_2] had never resolved to pay any interest on any loans made to it. [NAME_62] also said that he was not aware of any minute recording any resolution by [NAME_2] to pay any interest on loans made to it. A call for the minute book made by counsel for the [NAME_36] produced no such minute.

Ratification by shareholders 1. I have referred above to the evidence, given by [NAME_82] at the hearing following leave to reopen, to the effect that there has never been a resolution passed in relation to the payment of interest at 8% on loans. In the circumstances, it is difficult to see how any pre-incorporation agreement made among the prospective shareholders was ratified by [NAME_2] after its incorporation in accordance with the statutory requirements of s 131 of the Corporations Act.

2. Nevertheless, [NAME_2] asserts that [NAME_91]'s evidence was to the effect that there were numerous meetings where "it was discussed" that loans were to accrue interest at 8%, being meetings at which the [NAME_60] were present, albeit that they were not formal meetings of shareholders. When asked whether "between some date in 2003 and a couple of days prior to 2 September 2019" he had ever been asked to recall his recollection of that meeting that had taken place some 16 years ago, [NAME_91] responded: "We've had meetings in the past and we've always spoke about what's in my affidavit".

1. It is quite unclear from that evidence when the meetings took place, who was present at the meetings and what exactly was discussed. Ratification by the members of a company of a pre-incorporation agreement requires, at least, an agreement by the members to that effect. Thus, where a meeting of the members of a syndicate who have formed a company of which they are the sole shareholders are all present at a meeting, the meeting can be treated as a general meeting of the shareholders even if the minutes of the meeting record it as a board meeting. [12] However, a vague general informal discussion by some of the shareholders about a matter will not be sufficient. It is necessary for all of the members to agree expressly, after incorporation, albeit at an informal meeting, that the company be bound by the pre-incorporation agreement. There is simply no such evidence of any such meeting of the members of [NAME_2].

2. If all the shareholders of a company are present together in a meeting and signify their assent to a transaction, their decision would be effective to adopt the transaction on behalf of the company as if a resolution of that effect had been passed at a properly constituted meeting. That would be so, if all shareholders are present and believe they are conducting a meeting even if the requirements as to notice in the company's constitution have not been observed. A transaction will be a valid transaction of a company if all corporators of the company assent, whether that assent is given at a meeting of some kind or even without a meeting and whether or not that assent is given simultaneously by all shareholders or at different times and places. [13] However, [NAME_2] has adduced no evidence of express assent by the shareholders of [NAME_2], after the incorporation of [NAME_2], to the acceptance of a liability on the part of [NAME_2] to pay interest on monies provided for the purposes of the subdivision.

Ratification by sole director 1. [NAME_2] relies, in the alternative, on a possible ratification by [NAME_58], who was the sole director of [NAME_2]. [NAME_2] asserts that [NAME_58] "may have had a directors' meeting and resolved to ratify the pre-incorporation agreement". However, there was no evidence of any such meeting or resolution. [NAME_2] also relies on evidence given by [NAME_62] at the first hearing in answer to the suggestion that there was not any actual agreement reached at a meeting: "There was a discussion and an agreement, so people were putting different amount of funds, we agreed to compensate the other people by paying interest on those funds. Not everybody had the funds available at that point in time." When asked whether the shareholders of [NAME_2] ever resolved to pay interest on loans made to it, [NAME_62] replied: "This meeting did happen but it wasn't the shareholders of [NAME_2]." 1. [NAME_62] agreed that the shareholders of [NAME_2] have never resolved to pay interest on any loans made to it but asserted that he was not aware whether [NAME_58] made any agreement. [NAME_62] asserted that he conveyed "on to other investors that 8% would be paid on [NAME_58]'s undertaking". However, [NAME_62], having accepted that there should be a minute taken, said that he was not aware of any minute recording any resolution by [NAME_2] to pay any interest on loans made to it. [NAME_2] concedes that it is unlikely that there was a minute.

2. In his affidavit of 10 March 2017, [NAME_58] asserted that [NAME_2] had expended in the vicinity of $9,269,000 on the subdivision, which included the purchase price of the Land, including a parcel of land purchased from the [NAME_36] and legal costs in funding various proceedings. [NAME_58] asserted that [NAME_2] had funded those expenditures by borrowing funds "from private investors". It is highly significant that [NAME_58] made no mention of any agreement to pay interest on funds borrowed from "private investors". 3. [NAME_2] asserts that, in the light of that evidence, there "probably was express ratification" by [NAME_58] as a director and that "it just was not written down, so it was express but not formal". [NAME_2] asserts that it would be likely that [NAME_58], in his capacity as the only director of [NAME_2], had determined "albeit informally" that [NAME_2] would pay interest on loans made to it in circumstances where its "modus operandi was borrowing funds". 4. [NAME_2] points to the fact that [NAME_62], apparently with [NAME_2]'s authority, was soliciting payments to [NAME_2] from third parties and asserts that [NAME_2] continued to receive funds upon which interest "would be paid". In his November 2017 Affidavit, [NAME_62] said that, after the initial investment of money following the agreement at the first meeting of the [NAME_60], he was involved in the negotiation of every other loan with "the investors" on behalf of [NAME_2]. He said in his affidavit that he had separate conversations with each of the principals of the "investors" during which it was his standard practice to say to each prospective investor words to the effect: "Any funds which you advance would be used in the development that [NAME_2] is undertaking in [ADDRESS]. [NAME_2] will pay you interest at 8% per annum. The interest payments and the repayment of principal will not occur until the sales of the lots settle after the subdivision has been completed."

1. As [NAME_2] asserts, it was "extraordinarily unlikely" that the payments received by [NAME_2] were gifts and it would be "highly unlikely" that, in the balancing exercise to account for a shortfall of contributions by [NAME_58], the contributors other than [NAME_58] would receive no benefit for their contribution and that profits would then be shared as per the shareholding. [NAME_2] asserts that that would defeat the point of the exercise. It asserts that it would be equally unfair that as subsequent borrowings occurred both from companies associated with the [NAME_60] and from third parties that the new borrowings would attract interest, but the original borrowings would not. Therefore, [NAME_2] asserts, "the likelihood is that [[NAME_94] expressly but informally ratified the agreement."

2. In effect, [NAME_2] invites the Court to draw inferences as to matters that were within the direct knowledge of [NAME_58], who gave evidence at the first hearing, but about which [NAME_58] gave no evidence. However, the Court should not draw inferences favourable to a party in circumstances where a witness who had direct knowledge of the matters gives evidence but is not asked any questions by the party as to those matters. [14] Inferences should not be drawn in favour of a party that calls a witness who could have given direct evidence when the party refrained from asking the crucial questions of the witness. [15]

3. In any event, s 131(1) of the Corporations Act requires that the agreement said to be ratified be entered into "by a person" on behalf of the company to be incorporated. That requires an identifiable person. [16] In the present case, it is by no means clear who is said to have entered into the alleged agreement on behalf of [NAME_2]. At best, the evidence referred to above establishes no more than that the prospective shareholders of [NAME_2] agreed amongst themselves that, at some point in the future, they would enter into an agreement with the proposed company to pay 8% interest on loans. That is not sufficient to satisfy the requirement of s 131(1). [17]

Implied or inferred ratification 1. [NAME_2] asserts that, where a principal sues on a transaction effected by an agent outside the authority of the agent or grounds a defence to legal proceedings on the basis of the validity of such a transaction, it is implicit in the principal's actions that the agent's unauthorised transaction has been ratified. [18] [NAME_2] accepts that it has not sued on any transaction between it and any of the "investors" who advanced funds to it. However, it asserts that it has sued the [NAME_36] on the basis of the transaction and that, in resisting the [NAME_36]' assertion that there was no agreement to pay interest, the actions of [NAME_2] are the equivalent of suing on such a transaction or basing a defence on such a transaction. 2. [NAME_2] says that the essence of taking proceedings or defending proceedings on the basis of a transaction made by an agent outside the agent's authority is that it is a formal and open acknowledgement by the principal of the act of the agent. [NAME_2] asserts that the position that it has taken in the Rescission Proceedings has been an endorsement of the case that it is conducting, namely, that by virtue of the conduct of the [NAME_36], [NAME_2] incurred increased interest in addition to other holding expenses.

3. It may well be correct to say that a party will not be permitted to approbate and reprobate. That is to say, it cannot claim that there is a valid act by its agent on the one hand and then sue its agent for taking action without its authority on the other hand. [19] However, that is not to the point.

4. The evidence of [NAME_82] was that [NAME_2] had no money of its own and all of its funds had to come from loans made by shareholders and other "investors", being clients of [NAME_82]'s accountancy practice who had surplus cash lodged with his practice for investment. [NAME_2] asserts that, in those circumstances, it was obvious that there would be a return on the investment. [NAME_58] said in his affidavit that [NAME_2] had funded the outgoing by borrowing funds from private "investors". 5. [NAME_2] asserts that the continued borrowing of money from "investors" and the repayment of funds to certain "investors" together with interest at 8% was evidence of an implied or inferred ratification of the pre-incorporation agreement. It asserts that [NAME_2] continued to receive money from various entities and accounted for the receipts as loans. Thus, [NAME_2] says, since the money received from [NAME_2] from the "investors" was not by way of gift, it must have been by way of loan and, if there were loans, is highly unlikely that the loans were made on an interest-free basis and highly likely that they were received on the basis that interest would be paid at the rates about which evidence was given. However, it is also possible that the advances were by way of contribution to the capital of a joint venture, on the basis that the contributors would be entitled to receive a share of the profits in proportion to their respective contributions. 6. [NAME_2] also relies on the proposition that the receipt or retention of money with knowledge of the circumstances of a contract under which it is paid will normally constitute ratification of that contract. [20] [NAME_2] asserts that there is no difference in principle between keeping the money advanced and keeping the land purchased with the money advanced. [NAME_2] asserts that the alleged loans were made until finalisation and sale of the lots in the proposed subdivision of the Land. It asserts that it acted in accordance with the pre-incorporation agreement by retaining the funds except in the cases where the funds were earlier repaid.

7. The difficulty with [NAME_2]'s contention is that it has not proven any agreement the ratification of which might have been effected by retaining the funds advanced and now alleging as against the [NAME_36] that there was such an agreement. There has been no implied or inferred ratification.

Adoption by acquiescence 1. [NAME_2] also asserts that, if it is accepted that there was a pre-incorporation agreement concerning the lending of funds to [NAME_2], even if it were not accepted that there had been other acts amounting to express or implied or inferred ratification, [NAME_2] would nonetheless have tacitly adopted the agreement by acquiescing in it. It asserts that its conduct in not denying the existence of a pre-incorporation agreement is the equivalent of "a clear adoptive act". [21] Again, the answer to such a contention is that there is no evidence that any such an agreement was made.

Contentions if no ratification 1. [NAME_2] then asserts that s 131 of the Corporations Act provides a mechanism whereby, even if there is no ratification by [NAME_2], it may be ordered to pay damages. [NAME_2] asserts that, if it be assumed that [NAME_58] entered into the arrangements with the "investors" in respect of the funds originally provided for the purchase of the Land, [NAME_58] is the "person" referred to in s 131.

Accordingly, proceedings could be brought against [NAME_58] (or presumably his estate) to recover damages and under s 131(3) the Court could order [NAME_2] to pay damages. However, it is no more likely that [NAME_58], rather than any other person present at the pre-incorporation meeting, was the "person" within the meaning of s 131(1). Further, there has been no order for [NAME_2] to pay damages and, accordingly, no basis for asserting that the acts of the [NAME_36] have caused [NAME_2] to incur a liability to pay such damages. There has been no evidence from any of the "investors" as to the existence of any agreement that [NAME_2] would pay interest.

2. Finally, [NAME_2] advances a contention that it has been kept out of the proceeds of the sale of the lots in the subdivision and will therefore be entitled to interest pursuant to s 100 of the Civil Procedure Act 2005 (NSW). However, such interest is only payable in proceedings for the recovery of money on the money awarded as damages. The proceeds of the sale of the lots in the subdivision are not [NAME_2]'s damages. Section 100 cannot have any application.

Conclusion on pre-incorporation discussion 1. It is more likely than not that some arrangement was made involving [NAME_58], on the one hand, and the other proposed shareholders on the other, whereby the imbalance in contributions by the proposed shareholders would be adjusted in some way by the payment of interest. It may be that the arrangement was to the effect that all advances made by shareholders would bear interest at the rate of 8% per annum. However, I am not persuaded that any such arrangement was subsequently adopted or ratified by [NAME_2] when it was incorporated. I am not persuaded that [NAME_2] incurred a liability to pay interest on any funds provided pursuant to the arrangements made prior to its incorporation.

The evidence of discussions with "investors"

1. In the November 2017 Affidavit, [NAME_62] made the following assertions: 1. [NAME_2] had operated solely on funds that had been borrowed from 11 "investors", who had debts outstanding to them in relation to their loans. 2. [NAME_80] lent the sum of $239,200 to [NAME_2] at the same rate of interest as [NAME_2] was paying to other "investors". 3. [NAME_38] lent the sum of $1,135,454 to [NAME_2]. 4. [COMPANY_96] ([NAME_95]) lent [NAME_2] the sum of $1,014,699. [NAME_62] and [NAME_82] were directors of [NAME_95], but [NAME_95] was not a shareholder of [NAME_2]. 5. [NAME_68] lent the sum of $474,500 to [NAME_2]. [NAME_62] was a principal of [NAME_68] but [NAME_68] was not a shareholder of [NAME_2]. 6. [COMPANY_98] ([NAME_97]) lent the sum of $228,201 to [NAME_2]. [NAME_97] was a company owned by [NAME_58] but was not a shareholder of [NAME_2]. 7. "[COMPANY_99]" lent the sum of $790,919.00 to [NAME_2]. "[COMPANY_99]" appears to stand for "[NAME_100]". 8. [NAME_101] lent the sum of $86,593 to [NAME_2]. [NAME_62] was a principal of [NAME_101] but [NAME_101] was not a shareholder of [NAME_2]. 9. [NAME_102] and the [COMPANY_106] made loans totalling $2,327,200. 10. [COMPANY_107] and [NAME_108] lent money to [NAME_2].

1. There is no evidence to suggest that [NAME_102], the [COMPANY_106], [COMPANY_107], [NAME_75] or [COMPANY_99] has any link with the [NAME_60] or [NAME_2] except as "investors". [NAME_82] described them as small business clients of his accountancy practice who had surplus cash that they lodged with his practice for investment.

2. In the November 2017 Affidavit, [NAME_62] set out a list of "the identity of each of the investors in [NAME_2]" together with "the amount lent to [NAME_2] by each of them" (the List). The List shows a total of $9,664,201 and is set out in Appendix 1 to these reasons. [NAME_62] confirmed that [NAME_2] does not have any written loan agreement with any of the persons or entities set out in the List.

3. The earliest date for entries in the Summary, other than "[NAME_52][,] [NAME_56] & [NAME_45]", was "10/04/2003" for the sum of "$6,050" in the name of [NAME_97], for "[NAME_109]". The next entry for [NAME_97] was $110,000 on "23/06/2004", followed by nine more entries of various amounts. [NAME_97] is shown as having a balance of $228,201.29 as at 30 June 2017 representing the total sum of those eleven entries. The only other entries in the Summary during 2003 were for the sum of $405,250 on 25/06/2003 and $70,204 on 26/06/2003 in the name of [NAME_38] and a sum of $507 on 7/05/2003 in the name of "[NAME_110]" for "Aust Native Landscaping". The total amount of loans shown in the Summary, including that from "[NAME_52][,] [NAME_56] & [NAME_45]", is $9,664,402.12. When that contribution is excluded, the total amount is $7,295,701.67. Most of the other "investors" are shown in the Summary as having made advances in substantial amounts for the first time in 2012 and subsequently.

4. The amounts included in the List broadly correspond with the totals that appear in the Summary in relation to each "investor", subject to minor inconsistencies. First, "[NAME_112]" appears in the Summary, but the corresponding amount that appears on the List is there termed "[NAME_101]". Secondly, the List rounds the amounts that appear in the Summary to the nearest dollar amount. Thirdly, there is a discrepancy of approximately $200 between the total of the funds in the List, being $9,664,201, and the total of the funds in the Summary, being $9,664,402.12. It may be that the discrepancy arises out of the entry on the List for "[NAME_113]" being in the amount of $35,397.00 and the amount in the Summary for "[NAME_114]" being for $35,596.56, a difference of $199.56. Finally, the [COMPANY_99] loan recorded in the List does not in the Summary appear with the other loans. Rather, the [COMPANY_99] loans appear in a final calculation at the end of the Summary, which provides as follows: Total Loans $8,873,482.33 Total of Bank, [NAME_68] and KI Loans [sic] [NAME_52] [NAME_56] & Remal[i] $2,368,700.45 $6,504,781.88 [COMPANY_99] $790,919.79 [COMPANY_99] $7,295,701.67

1. [NAME_62] claimed that certain entries in the Summary reflect repayments made by DFG to an investor, indicated with a minus sign. The November 2017 Affidavit said that some investors called in their loans in conversations with [NAME_62] and were subsequently repaid by [NAME_2], with the relevant entries on the Summary recording a "zero balance". This is the case for two entries: [COMPANY_116] and one of the two entries for [NAME_68].

2. In his affidavit of 2 September 2019, [NAME_82] said that [NAME_2]'s funding came from loans made to it. He set out the loans made to [NAME_2] during the period 3 July 2015 until 16 May 2017 and provided references to the corresponding bank account statements. Those loans align with those in the Summary and the List, albeit with an additional loan from [COMPANY_117], described as a company associated with [NAME_86], of $20,000, made on 11 August 2016. There is no record of such a loan in the Summary or the List. However, that amount was deposited into the bank account of [NAME_2] on 11 August 2016.

3. The Summary may suggest that the original intention was that the [NAME_60] would fund the development. The terms on which the [NAME_60] were to contribute to the development would not necessarily be the same as the terms upon which outside "investors" would provide funds. Thus, the [NAME_60] would, through their associated entities, derive a return on their investment from the profit generated by the development while those who made advances would have no interest in the outcome, other than as lenders, and would be expected to receive interest on the amounts advanced.

4. A complication with that thesis, of course, is that the [NAME_60] appear to have made further contributions either personally or through various associated entities, in so far as several of the "investors" are associated with the [NAME_60]. It may be that those further contributions would be entitled to bear interest. On that basis, for [NAME_58] to be entitled to share in the profit of the project, it would be necessary for him to compensate the other [NAME_60] for the shortfall in his original contribution.

Consideration as to interest 1. The question that remains is as to the terms on which the advances referred to above were made to [NAME_2]. [NAME_2] has the onus of establishing that [NAME_62] was authorised to enter into loan agreements with "investors" and it is not for the [NAME_36] to disprove that agreements were made. The [NAME_36] contend that the Court should not be satisfied that it is more likely than not that agreements to pay interest at 8% were ever made. They rely on the following matters: * Nothing about interest was ever reduced to writing, notwithstanding the obvious experience in commercial affairs possessed by [NAME_62] and [NAME_82]; * There is no record of [NAME_2] recording such an agreement, by way of minutes or otherwise; * [NAME_62] agreed that to his knowledge the shareholders of [NAME_2] have never resolved to pay interest on any loans; * There was obvious confusion and inconsistency in the evidence of [NAME_62], [NAME_82] and [NAME_91] as to exactly what was said at the first meeting of the [NAME_60] and in particular what was said about interest; * [NAME_58], the only director of [NAME_2], gave no evidence as to any agreement as to interest, and gave no evidence as to what was said at the first meeting of the [NAME_60]; * None of the non-shareholder "investors" gave any evidence about being a party to any such agreement; and * The only evidence of any conversation with "investors" about payment of interest on their loans was given by [NAME_62] related not a conversation on behalf of [NAME_2] but conversations in the capacity of an "investor".

1. The only financial material of [NAME_2] in evidence consists of the accounting records to which I have referred. There are no primary accounting records in evidence, such as ledgers. [NAME_2] contends that, even if the original intention was that the [NAME_60] would fund the development, that is not what eventually occurred. Thus, there are no accounting records that suggest that the sums advanced from the [NAME_60] or their related entities were intended to be equity. 2. [NAME_2] accepts that the details of the first meeting of the [NAME_60] are "vague". It justifies that characterisation by asserting that "these people were all friends and associates and did not seem to make notes of their decisions". [NAME_2] asserts, however, that there is uniformity in the evidence of the witnesses as to the discussions concerning [NAME_58]'s lack of funds to match the contributions by the other [NAME_60] and the proposal that the way to "balance" unequal contributions was for [NAME_2] to borrow money to fund the development and pay interest on the money borrowed. [NAME_2] asserts that various contributions made to the project for the purchase of land, payment of stamp duty were finalised in January 2003 and many more payments were thereafter made to or on behalf of [NAME_2], which [NAME_2] asserts were "loans".

3. The records of [NAME_2] in evidence show paid up capital of $4, being four shares of $1 each. As I have said, three of the shares were held by companies controlled by [NAME_62], [NAME_82] and [NAME_58] respectively and the fourth was held on behalf of the [NAME_118]. Clearly enough, if the [NAME_61] and "investors" had provided funds to [NAME_2] as share capital, the accounts of [NAME_2] would be expected to have shown substantial paid up capital rather than substantial non-current liabilities.

4. It is remarkable that quite significant sums of money appear to have been provided without any record of the terms upon which the advances were being made. Clearly enough, "investors" who provided funds after the first meeting of the [NAME_60] did so in the expectation of receiving a return on their "investment". [NAME_2] contends that, even if the original intention was that the [NAME_60] would fund the development, that is not what eventually occurred. [NAME_2] contends that the evidence only supports the conclusion that the subsequent advances were made by way of loan. Further, [NAME_2] says, there is no evidence to suggest that the accounts of any of the entities associated with the [NAME_60] advanced money to the respective [NAME_60] for investment in [NAME_2] on capital account. In addition, [NAME_2] says, there is no basis for suggesting that any of the entities associated with the [NAME_60] injected funds into [NAME_2] on capital account, since they were not shareholders. Finally, [NAME_2] asserts, there is no evidence to suggest any agreement between the [NAME_60] prior to the incorporation of [NAME_2], or subsequent to its incorporation, or among the entities that became shareholders in [NAME_2], whereby the funds provided to [NAME_2] by any one of them would somehow be accounted for in a profit calculation at some time in the future, presumably after the Land was sold. 5. [NAME_2] asserts that it was not possible for any profit generated by the venture to be distributed to the [NAME_60] or to the entities associated with them that advanced funds unless the funds were advanced by way of loan. Apart from the holders of shares in [NAME_2], none of the entities who advanced funds could be paid a dividend. There has been no suggestion of an arrangement whereby the entities would receive some other remuneration by way of salary or wage for services provided. Drawings by shareholders would be treated as advances and as unfranked dividends. 6. [NAME_2] asserts that the only way that the entities associated with the [NAME_60], none of whom was a shareholder, could receive a return on their investments was to receive interest on the money advanced as loans. The only way that any profit derived by [NAME_2] could be ascertained for the purpose of distribution to shareholders was after the payment of expenses. The value of the shares would depend upon the value of the Land after the subdivision was effected or upon the total proceeds of sale of lots in the subdivision. The value of the shares would depend upon the liabilities of [NAME_2] as against the value of its sole asset, the Land or the proceeds of sale.

7. Thus, the shareholders could realise a return on their investment by selling their shares. That is to say, to the extent that the development resulted in a profit from the development, the value of the shares would be increased by the amount of the profit. That value could be realised by sale of the shares. 8. [NAME_2] contends that, notwithstanding the absence of any ratification of arrangements by [NAME_2] following its incorporation, every time funds were advanced to [NAME_2], a separate contract came into existence. It says that, once it is accepted that the funds were advanced with the expectation of a return on the investment, the return had to be provided either by way of a share in profit or by way of interest. [NAME_2] contends that, in the absence of any mechanism whereby the non-shareholders could receive a share of profit, the return must have been by way of interest.

9. It is highly significant that there is no evidence from any of the "investors" as to the terms of their arrangements, if any, with [NAME_2]. There is no reason, in principle, why any of the so-called "investors" could not have made an arrangement with [NAME_2] to receive, by way of return on their "investment", a share in [NAME_2]'s profit, if any, under the development. That would have been an expense of [NAME_2] for the purpose of determining its corporate profit and of calculating its taxable income. 10. [NAME_62] said in the November 2017 Affidavit that he told "investors", other than those associated with the [NAME_60], that interest payments and repayment of principal would not occur until settlement of the sale of the lots after the subdivision had been completed. Such an arrangement, of course, would be appropriate if the "investors" were to receive a share of the profit as the remuneration for their advances. A lender would normally expect to receive interest on a loan but an "investor" who was participating in profit, on the other hand, would not expect to receive a share of the profit until the venture was complete. Again, it is significant that there is no evidence from any of the "investors" as to such an arrangement.

11. In their submissions of 20 November 2019, the [NAME_36] contended that the lack of any evidence by [NAME_58] as to any agreement with the "investors" to pay 8% interest on the loans is hardly surprising as, even on [NAME_62]'s evidence, there was no agreement between [NAME_2] and the "investors". Rather, there was only an alleged oral agreement between the "investors", on the one hand, and [NAME_62], on the other, acting only in the capacity of an investor in [NAME_2]. 12. [NAME_62]'s evidence was not convincing. When asked in cross-examination on 24 November 2017 who the individuals were with whom he claimed he had made oral agreements to the effect that [NAME_2] would pay interest on loans, [NAME_62] could not remember. When it was suggested to [NAME_62] that there were no oral agreements entered into on behalf of [NAME_2] to borrow money from individual investors and to pay those investors interest on those monies, [NAME_62]'s response was there was a discussion in relation to the funds received from [NAME_119] and the [COMPANY_106] with [NAME_119]'s son-in-law, [NAME_120]. However, [NAME_62] was not sure when any meeting with [NAME_123] took place but said "it would have been before I put the money into … [NAME_2]". 13. [NAME_62] said that he explained to [NAME_123] that he was "investing the funds into [NAME_2] at 8% to get her [sic] a better return". When asked about the capacity in which he claimed he entered into the agreement with [NAME_123], [NAME_62] responded that he did so "as an investor in [NAME_2]". He agreed that it was an agreement between one investor in [NAME_2] and a prospective investor in [NAME_2]. The [NAME_36] complain that, notwithstanding such clear evidence that the only "investor" who was not a party to the original pre-incorporation agreement was [NAME_119] and that [NAME_62] was not authorised by [NAME_2] to offer to pay 8% interest to [NAME_119], [NAME_2] made no reply to the submissions during the hearing on 21 and 22 November 2019.

14. The [NAME_56] Evidence, on which [NAME_2] now seeks to rely, must be considered closely. Thus, there is no evidence in the records of [NAME_2] that [NAME_64] ever lent any money to [NAME_2]. [NAME_64] is not shown as one of the lenders in the List or the Summary. The banking records of [NAME_2] did not show any monies having been received from [NAME_64] on 30 January 2012 or on any other date although there is evidence of a payment of the sum of $319,940 being made by [NAME_2] to [NAME_64] on 27 August 2012 and of the same sum being deposited into [NAME_64]'s bank account on the 27 August 2012.

15. The evidence in relation to [NAME_64] is by no means decisive. During the course of re-examination on 21 November 2019, [NAME_62] suggested that [NAME_64] did not appear on the List or the Summary because "those funds, I'd say would have been paid direct to a previous shareholder, and when we were preparing the reconciliation, we just went straight off the bank statements." This assertion is at odds with the fact that there are entries in the Summary that are not reflected in the bank account statements of [NAME_2]. For instance, the "[NAME_52][,] [NAME_56] & [NAME_45]" entry for $2,357,759.33 did not appear in the bank accounts, nor did a loan of $600,000.00 from [COMPANY_116] recorded as made on 31 January 2012, yet both are recorded in the Summary.

16. The [NAME_36] assert that the evidence is capable of supporting several findings as follows: * The only "investors" with whom [NAME_62] claims to have had discussions regarding the payment of interest at 8%, other than the initial discussions with the [NAME_60] prior to the incorporation of [NAME_2], were [NAME_119] and her son-in-law, [NAME_123]; * [NAME_62] was not expressly authorised by [NAME_2] to offer to pay to [NAME_119] or the trust associated with her interest at 8% on loans; * To the extent that [NAME_62] may have told [NAME_123] that he could obtain a return of interest at the rate of 8% on [NAME_119]'s investments, there is no evidence that [NAME_62] made an agreement to that effect with [NAME_2] or that any officer of [NAME_2] subsequently ratified any such agreement; and * The only possible significance of the payment of "$19,340 [sic] on 24 August 2012" made to [NAME_64] is that an inference might be drawn that interest at that rate was payable to "investors" at the time of repayment of their respective loans and it is otherwise irrelevant for the purpose of determining [NAME_2]'s damages since, even if it was interest on a loan, it was repaid in August 2012, three years before the relevant delay.

1. The [NAME_36] contend that there is no evidence of any actual "investor" who was not associated with the [NAME_60] other than [NAME_119] and [COMPANY_107] and [NAME_108]. In those circumstances, the [NAME_36] contend, [NAME_2] is entitled to no interest since it has not established that there was any agreement with any of the "investors" to pay interest. 2. [NAME_2] accepts that its record-keeping was "not world's best practice" and that documents were provided and annexed to affidavits in "something of a haphazard fashion". It says that the explanation for the absence of appropriate documentation is partly the nature of the close relationship of the [NAME_60] and the "investors" and partly the haphazard nature of the record-keeping. 3. [NAME_2] asserts that, while [NAME_62] was not a director of [NAME_2], it was plain that he thought he had been a director at one point and, indeed, swore an affidavit as a director, something about which he was cross-examined. [NAME_2] asserts that [NAME_62] was "plainly a shadow director". Indeed, he agreed, when it was put to him in cross-examination, that he "acted as a director of" [NAME_2]. [NAME_2] asserts that [NAME_62] was closely aligned with it and those who were its shareholders and with its director, [NAME_58]. [NAME_2] asserts that the individuals involved were friends and did not document everything, even concerning substantial amounts of money, and that they trusted each other such that, effectively, millions of dollars were lent to [NAME_2] by a number of entities and persons without documentation and without security.

4. The [NAME_36] accept that, in its most recent submissions, [NAME_2] now engages with what they characterise as "the critical question of [NAME_62]'s authority". Thus, [NAME_2] contends that [NAME_62] was a "shadow director" of [NAME_2] and that he had agreed in cross-examination that he had acted as a director of [NAME_2]. The [NAME_36] draw attention to the actual evidence given by [NAME_62]. [NAME_62] answered "no" to successive questions asking him whether he is a director of [NAME_2], whether he had ever been a director of [NAME_2] and whether he had from time to time acted as a director of [NAME_2]. When asked whether he was quite certain that he had never acted as a director of [NAME_2], [NAME_62] responded that, from his best recollection, he was not sure. When pressed on the question as to whether he was sure that he had never acted as a director, he confirmed that he was "not quite sure". When asked if he may have acted as a director of [NAME_2], [NAME_62] conceded that "he may have". 5. [NAME_62] was then shown a copy of [NAME_2]'s defence to cross-claim of 26 November 2013, which bears his signature in the affidavit verifying the defence. When his attention was drawn to the fact that he swore that he was director of [NAME_2] and that the allegations of fact contained in the defence were true, his response was he did that "on the [sic] mistake" and that he did not "read it properly". [NAME_62] said that it looked like he had incorrectly signed the affidavit as a director since, as far as he was aware, he was not a director. Subsequently, [NAME_62] confirmed that he was not a director and that he signed the affidavit "by mistake". He denied that he signed the affidavit intentionally knowing that he was not a director because he believed that he never was a director of [NAME_2]. [NAME_62] could not offer any explanation as to how he could have made the mistake, saying that he could not remember why he signed the affidavit. He suggested that he thought, perhaps, that he was signing it as the accountant for [NAME_2]. 6. [NAME_2] contends that, whether or not [NAME_62] actually did solicit loans on behalf of [NAME_2] on the basis that [NAME_2] would pay interest at the rate of 8%, it is irrelevant whether or not [NAME_62] subjectively considered himself to be a director or to have acted as a director since his personal view as to the capacity in which he acted is irrelevant. [22] There was no objection to the questions put to [NAME_62] as indicated above. Nevertheless, [NAME_2] contends, it is erroneous to dwell on [NAME_62]'s subjective views as to whether he was a director or ever acted as a director.

7. The evidence clearly indicates that [NAME_62] never considered himself to be a director of [NAME_2] and that he never knowingly acted as a director of [NAME_2]. [NAME_62]'s evidence was that the one instance of his acting as a director, by signing the defence to cross-claim on 26 November 2013, was by way of a mistake because he thought he could sign the document as [NAME_2]'s accountant.

8. A de facto director, sometimes referred to as a "shadow director", is a person who performs the functions normally attaching to the office of a director without having been formally appointed as such. [23] The only evidence that [NAME_62] ever performed any function of a director of [NAME_2] was his signing that affidavit in November 2013, many years after the agreements alleged to have been made with "investors". Any suggestion that [NAME_62] was a "shadow director" or a "de facto director" of [NAME_2] must therefore be rejected. The [NAME_36] dispute [NAME_2]'s contention that the admission made by [NAME_62] that he only entered agreements with "investors" in his own capacity as an investor was not really an admission that he had no authority from [NAME_2] to enter into such agreements. In that regard, the [NAME_36] draw attention again to the specific evidence given by [NAME_62] during cross-examination. Thus, when asked as to the capacity in which he claimed he entered into an agreement with [NAME_123], [NAME_62] responded "as an investor in [NAME_2]". He was then asked whether he meant that one investor in [NAME_2] was entering into an agreement with another investor in [NAME_2]. His response was "a prospective investor, yes". He then confirmed that that was the only capacity in which he claimed he entered an agreement with [NAME_123]. 9. [NAME_2] also relies on the evidence given by [NAME_62] that he "conveyed onto other investors that 8% interest would be paid on [NAME_58]'s undertaking". That evidence was given in the course of the following exchange: "Q. To your knowledge, did the shareholders of [NAME_2] ever resolve to pay interest on loans made to it? A. This meeting did happen but it wasn't the shareholders of [NAME_2]. Q. The shareholders of [NAME_2] have never resolved to pay interest on any loans made to it, correct, to your knowledge? A. Yes, that's correct, but I am not aware if the director made any agreement. Q. Who is the director who may or may not have made an agreement? A. [NAME_124]. Q. But as far as you're aware‑‑ A. There was no shareholders meeting called to do that, it was all before the company was established. Q. [NAME_2] has never resolved, to your knowledge, to pay any interest on any loans made to it? A. The director of the company has commented on that fact a number of times. Q. We can ask him? A. Yes, you can. Q. But you've had no direct involvement in any such arrangement? A. I conveyed onto other investors that 8% interest would be paid on [NAME_58]'s undertaking." However, the fact that [NAME_62] told others about something that a director of [NAME_2] may have said is not evidence that [NAME_62] was authorised on behalf of [NAME_2] to enter into agreements with potential investors.

1. Further, the statement by [NAME_58] to which [NAME_62] was referring was made at the meeting of the [NAME_60] prior to the incorporation of [NAME_2] and the shareholders of [NAME_2] at no stage resolved after incorporation of [NAME_2] to pay interest on any loans made to it. [NAME_62] confirmed that, so far as he was aware, there was no shareholders meeting called to do that and "it was all before the company was established".

2. The [NAME_36] reject [NAME_2]'s contention that it should have been put to [NAME_62] in cross-examination that he had no authority to offer [NAME_64] 8% interest on its advances to [NAME_2]: [NAME_62] had never claimed that he had such authority or that there was an agreement with [NAME_64] that it would be paid interest at the rate of 8%. [NAME_62]'s evidence was that the only oral agreements he had entered into were with [NAME_119] and [NAME_123], her son-in-law. Thus, [NAME_62] was asked whether, apart from the discussion among the [NAME_60] prior to [NAME_2]'s incorporation, there were any oral agreements that he entered into on behalf of [NAME_2] to borrow money from individual investors and to agree to pay those investors interest on those monies. [NAME_62] responded that there had been a discussion in relation to funds for the [COMPANY_106] and with [NAME_119]. He said he looked after the financial affairs for the [COMPANY_106] and [NAME_119] and explained to [NAME_123] that he was "investing these funds into [NAME_2] at 8% to get her a better return". 3. [NAME_2] asserts that "the documentary evidence should prevail". However, the "documentary evidence" says absolutely nothing about any agreement to pay interest to "investors" at the rate of 8% or any other rate. As indicated above, there is simply no evidence of any discussion between [NAME_62], on the one hand, and any "investor", on the other, as to the terms upon which the funds were to be provided by "investors" to [NAME_2] much less of any discussion between an officer or authorised agent of [NAME_2] and any "investor".

4. The critical loan records of [NAME_2], namely the Summary, make no reference to interest being payable on loans by "investors" at the rate of 8% or any other rate. There is no evidence of any written communication with any of the "investors" recording an agreement to pay interest at the rate of 8% or any other rate. The only contemporaneous record of any kind is the [NAME_68] of 10 December 2013 extracted above with respect to a loan made by [NAME_75] to [NAME_2] at the rate of 8%. [24] [NAME_2]'s bank statement records a deposit on 12 December 2013 in the sum of $238,190.50 and the Summary records two sums from [NAME_75] on 12 December 2013, one of $200,000 and another of $38,190.50. There is no reference to the terms of any loan such as when it was to be repaid or when interest was to be paid. The parties made no submissions on the topic.

5. The [NAME_36] do not dispute that funds were provided by the "investors". The question is as to the terms upon which those funds were provided. There is no contemporaneous written record of interest at the rate of 8% or any other rate being payable, aside from the one email in relation to [NAME_75]. The evidence is equally capable of supporting a conclusion that the "investors" were to be remunerated by a share of profit. [NAME_2] contends that "the loans were entered into the books". However, the contemporaneous records of the loans make no reference whatsoever to any liability to pay interest to "investors" at the rate of 8% or any other rate. So much was recorded in the Third Judgment. 6. [NAME_2] contends that an agreement to pay interest at the rate of 8% should be "inferred". However, as I observed in the Third Judgment, the Court should not draw inferences in favour of a party when that party could have called direct evidence to prove the fact about which the inference is sought to be drawn.

7. The [NAME_36] respond to [NAME_2]'s contention that [NAME_64], [COMPANY_99], [NAME_71] and [COMPANY_106] were "investors" not associated with the [NAME_60] by pointing out that the only "investor" that [NAME_62] claimed to have offered interest at the rate of 8% was [NAME_119], in the circumstances indicated above. The [NAME_36] contend that [NAME_62] was not authorised by [NAME_2] to make any agreement with any "investor" to pay interest on the advances made at the rate of 8% or any other rate. For those reasons, the [NAME_36] contend, the conclusion in [71] of the Third Judgment should be withdrawn and the Court should conclude that [NAME_2] has not proven that it has any liability to pay to any of the "investors" interest on advances at the rate of 8% or any other rate.

8. There is an extraordinary paucity of evidence as to the terms upon which the persons and entities who advanced money would be remunerated for the use of those funds. In that regard, [NAME_2] accepts that "the documentary record is thin". As I have said, it justifies that fact by referring to the nature of the relationship between the [NAME_60] and other persons and entities who provided funds to [NAME_2]. [NAME_2] asserts, having regard to the amounts involved, the accounting records and the loan repayments made, it is plain that monies were lent and received. That may be so. However, it is far from plain that the monies were lent and received on the basis that the loans would bear interest at the rate of 8% per annum or any other specific rate. 9. [NAME_2] contends that the conclusions that I reached in the Third Judgment should stand. It reiterates its contention that, having entered into the loans, [NAME_2] would have no defence to a claim by an "investor" for repayment of the loans. That must be so. The question, however, is not whether advances were made by the "investors" to [NAME_2] but the terms upon which the advances were made. The question is whether I am satisfied that it is more likely than not that arrangements were made with "investors" by [NAME_62] on behalf of [NAME_2] and that any arrangements made on behalf of [NAME_2] included a term that, at the time when the amounts were repaid, following completion of the development project, interest would be paid on the amounts advanced at the rate of 8% per annum.

10. While it is certainly more likely than not that the advances were not interest-free loans, the question is how "investors" were to be remunerated for the use of their money. It is significant that the persons and entities concerned have been referred to as "investors" and not as lenders. A lender is not an investor. An investor one would normally expect to have an interest in the outcome of the venture. The case advanced by [NAME_2] is that the "investors" were no more than lenders at a fixed rate of interest, albeit payable after the completion of the venture upon repayment of the loans. 11. [NAME_2] concedes that poor document keeping has bedevilled its case, it says that, if the evidence in relation to [NAME_64] was to be contested, it should have been put to [NAME_62] squarely during cross-examination that his evidence that [NAME_64] had lent [NAME_2] money and that it had been repaid with interest at 8% was false. [NAME_2] points out that, apart from his mistakenly swearing an affidavit as a director and his laxity concerning record-keeping, [NAME_62]'s credit was not impugned. [NAME_2] also points to evidence that "certain payments were made direct rather than through the bank account of" [NAME_2], including the very significant expense of the purchase of the land in the first instance. When [NAME_62] was asked in re-examination whether he was able to say why there were no references to [NAME_64] in the Summary, he responded: Yes, because those funds, I'd say, would have been paid direct to a previous shareholder and, when we were preparing the reconciliation, we just went straight off the bank statements. 1. [NAME_2] asserts that the documentary evidence supports [NAME_2]'s claims that loans were made by all investors and carried interest at 8% per annum. It asserts that the documentary evidence should prevail over the oral evidence given by [NAME_62] on 24 November 2017, some two years before the second hearing in November 2019. [NAME_2] says that the fact that, in 2017, [NAME_62] was unable to recall each and every person who had lent money, when the documentary evidence both then, and later, set out numerous lenders, ought not be relied upon to deny the likelihood of agreements having been made to pay interest, no matter who lent the money, particularly where he had set out his methodology for soliciting loans. However, the only evidence, as I have said was [NAME_62]'s evidence in cross-examination as follows: "I conveyed on to other investors that 8% interest would be paid on [NAME_58]'s undertaking". 1. [NAME_2] asserts that the idea that [NAME_62] solicited millions of dollars of loans without authority or the knowledge of [NAME_2] is untenable and that [NAME_62]'s evidence about soliciting loans is clear that the "investors" agreed that loans to [NAME_2] would carry interest at 8% per annum. [NAME_2] asserts that the loans were procured by [NAME_62] on that basis and that the loans were entered into the books of [NAME_2]. [NAME_2] dismisses the absence of any particular evidence that [NAME_58] asked [NAME_62] to procure loans for [NAME_2] at 8% per annum repayable at the conclusion of the Development. [NAME_2] contends that, looked at objectively, it is clear that the "investors", other than those connected with the [NAME_60], could claim interest from [NAME_2] at 8% per annum. It asserts that it would be unable to resist any claim for interest by any of the "investors" on the basis that the loans had been solicited by [NAME_62] rather than by [NAME_58]. A contract may be inferred from the acts and conduct of parties as well is in the absence of words. [25]

2. I reiterate the high significance of the fact that none of the "investors" gave evidence as to the terms of their respective arrangements with [NAME_2]. Further, even the evidence of the arrangements made by the [NAME_60] is confused. In the absence of any suggestion that the "investors" were to be remunerated by a share of the profit of the venture, it is more likely than not that the "investors" were to be remunerated by a payment of interest.

3. The reasonableness of an interest rate of 8% at the time when the project was proposed or at the time when the advances were made by the "investors" may be relevant to the question of whether a rate was agreed. In his affidavit of 2 September 2019, [NAME_82] referred to a schedule of variable home loan interest rates as at 2003. The source of those figures was not identified. The interest rates identified are between 6.55% and 7.05%. The provenance of the schedule was not identified but it was not disputed. It is probably capable of supporting a finding that 8% was not an unreasonable rate of interest to be paid on advances made for the purpose of the proposed project.

4. As I understand the position, the sale of the lots in the subdivision of the Land have now been completed. I would also draw the inference that the alleged loans by "investors" have been now been repaid by [NAME_2] and, if there was a liability to pay interest, the interest would have been paid to "investors". However, there has been no evidence as to whether interest has in fact been demanded or paid.

5. It appears probable that, while the original intention was that the [NAME_60] would fund the project in equal shares, that intention was frustrated by [NAME_58]'s inability to contribute his share. Had they contributed equally, the [NAME_60] would have been remunerated by the increase in the value of their shares in [NAME_2]. I consider that it is more likely than not that the idea of a payment of interest to the [NAME_60] who contributed more than their share resulted from [NAME_58]'s inability to contribute his share.

6. There are strands of evidence that may be capable of supporting [NAME_2]'s contentions. Thus, there is evidence relating to the following: * a loan from [NAME_108], a client of [NAME_68]; * a personal loan from [NAME_62]; and * a loan from [NAME_64]. I shall deal with each of those strands separately.

Loan from [NAME_108]

1. The following documents are in evidence: * The contemporaneous [NAME_68] of 10 December 2013 from [NAME_62] to [NAME_70], an employee of [NAME_68]. It refers to [NAME_75]'s agreement to lend [NAME_2] $238,190.50 at 8% interest. [NAME_62] instructs [NAME_70] to draw a cheque from [NAME_68]'s trust account to that effect. The [NAME_68] may lend support to [NAME_62]'s evidence of a practice of soliciting loans to [NAME_2]. * The [NAME_68] about [NAME_2] as client which includes, among other things, "[NAME_71]…From [NAME_68] trust A/C = Code 1785A $238,190.50". * [NAME_2]'s ANZ account statement for December 2013 that records a deposit made on 12 December 2013 of $238,190.50. [26] There are handwritten notes around the relevant bank statement entry, but the handwriting was not tendered with the account statements at the hearing of 24 November 2017. [27] * The Summary records two entries for [NAME_71] dated 12 December 2013 (among others of different dates) for $200,000.00 and $38,190.50 respectively, a sum corresponding to the $238,190.50 deposited in [NAME_2]'s ANZ account on the same date.

1. However, there was no oral evidence about this alleged loan and no witnesses were called in relation to it. In particular, there is no evidence of any discussion with [NAME_75] or whether the money was for the development of the Land.

Personal loan from [NAME_62]

1. The following documents are in evidence * The [NAME_68] that records a personal loan [NAME_62] made to [NAME_2] on 29 October 2012 at an 8% interest rate over 409 days, suggesting a date for repayment of such a loan on or around 11 December 2013, in the amount of $217,920.00. * On 29 October 2012, there is a $200,000.00 bank transfer into the [NAME_2] account. Again, there is handwriting on the statement that was not tendered. * [NAME_2] used cheque number 001241 to repay an unspecified person $217,920.00 described on the cheque butt as a "loan repay $200,000" and "$17,920". That cheque butt was dated 10 December 2013 and was withdrawn from [NAME_2]'s bank account on 16 December 2013. The payee field was left blank. As confirmed in cross-examination of [NAME_62], that amount corresponds to that recorded in the [NAME_68]. * The Summary under "[NAME_110]" does not record any loan of $200,000 being paid by or repaid to [NAME_62]. However, "[NAME_110]" has a significant number of loan payments recorded under his name in various other amounts. A single repayment of $222,200 is recorded as having been made to him during 2015. * The Summary records a "loan" of $200,000 made on "29/10/212 [sic]" in relation to "[COMPANY_81]" and indicates that this amount is outstanding. * The Summary, under "[COMPANY_69]", records a $200,000 repayment made on 10 December 2013, bringing that "investor's" balance to zero. $200,000 is recorded as advanced by [COMPANY_69] on 17 June 2013. Although the loan amount and the repayment date recorded aligns with that of cheque butt 001241, the recorded date of the commencement of the loan does not match the date in the [NAME_68]. * On 17 June 2013, there is a $200,000 deposit into the [NAME_2] account. * In December 2013, the only withdrawal around $200,000 was the $217,920.00 cheque.

1. The calculation on the [NAME_68] accords with the amount withdrawn from [NAME_2]'s account. The Summary discloses conflicting possibilities as to which person or entity actually advanced the "personal loan" and subsequently received repayment of it. There is a deposit into [NAME_2]'s account on the commencement date referred to by the [NAME_68], and a repayment out of the account on or around the date that [NAME_68] records and reflects interest of 8% for the relevant period.

Loan from [NAME_64]

1. On 30 January 2012, [NAME_64] lent [NAME_2] $300,000 to discharge a loan arrangement that [NAME_2] had with the Uniting Church (NSW) Trust Association Limited (the Uniting Church). [NAME_64] appears to have paid that money directly to the Uniting Church. That loan from the Uniting Church to [NAME_2] was to enable [NAME_2] to lend money to [COMPANY_126]. [NAME_2] repaid [NAME_64] $313,940, reflecting 8% interest, with cheque number 1185, the relevant cheque butt being dated 24 August 2012, which [NAME_64] deposited on 27 August 2012. The following evidence relates to [NAME_64]: * [NAME_2] made recurring payments to Uniting Church entities that occurred every month from 10 June 2004, evidenced by its bank statements, which abruptly ended in January 2012. * A tax invoice from [NAME_127] dated 12 March 2010 and addressed to [NAME_2] in respect of their costs of acting on behalf of the Uniting Church refers to "advance securing" $1,227,000.00 to [NAME_2]. The security was [ADDRESS], [ADDRESS]. [28] * The Uniting Church is not mentioned in the Summary. * At the hearing on 21 June 2018, there was discussion about a loan from the Uniting Church to [NAME_2] for the purpose of financing the Nelson Bay Development. [29] * In January 2012, [NAME_2] paid $495.00 by cheque. Cheque butt 1170 described the payment as "prep of discharge of documents loan with [COMPANY_128]". That cheque was debited to [NAME_2]'s account on 31 January 2012. * [NAME_62]'s calculations on the ANZ statement indicate that [NAME_64] lent $300,000 to [NAME_2] on 30 January 2012 and includes an interest calculation up to 28 August 2012 in the amount of $13,940.00. [30] * Cheque butt 1185 described [NAME_64] as the payee of the cheque, being "for paying out United Church" and included a breakdown of a loan of $300,000 with interest of $13,940.00. * Cheque 1185 was deposited together with another cheque, collected in the exhibit to the September 2019 Affidavit, [31] which shows two cheques and the deposit slip. * [NAME_64]'s bank account statement shows the deposit of those funds on 27 August 2012. * In evidence on 21 November 2019, [NAME_62] said that [NAME_64] was not included on the Summary because its money was "paid direct to a previous shareholder and, when we were preparing the reconciliation, we just went straight off the bank statements".

1. The documents concerning [NAME_64] tend to suggest that the money was advanced for a purpose other than the development of the Land. Further, [NAME_64] was not recorded in the Summary. Similarly, [NAME_62]'s own personal loan was not recorded in the Summary. One view might be that neither loan was advanced for the purpose of the development of the Land.

Conclusion as to interest 1. Those strands are not capable of making a rope that will support [NAME_2]'s case on interest. The state of the evidence is such that I am not able to be satisfied that [NAME_2] has established the terms upon which advances were to be made to [NAME_2] by the [NAME_60] or entities or persons associated or connected with them or by others. The evidence of the discussion involving the [NAME_60] prior to the incorporation of [NAME_2] is confused and unconvincing. It is unclear whether the discussion about interest payable to persons or entities related to the [NAME_60] was for all funds provided or only by way of balancing for shortfalls in contributions. I am simply unable to conclude that the advances that were made were made pursuant to any agreement made with [NAME_2] that [NAME_2] would pay interest on the amounts of the advances.

Costs 1. On 24 July 2018, the Court ordered [NAME_2] to pay the Purchasers' costs of the Rescission Proceedings. I did not intend that that order would foreclose [NAME_2] from claiming, as damages in the Specific Performance Proceedings, the costs that it was ordered to pay in the Rescission Proceedings. That is a head of damage now claimed by [NAME_2].

2. A plaintiff or cross claimant in proceedings will not ordinarily be entitled to recover, as damages in the claim made by that plaintiff or cross-claimant in those proceedings, the costs of making that claim. On the other hand, the Court has a discretion to order a party to pay another party's costs of the proceedings. The effect of such an order may be to indemnify the plaintiff or cross-claimant in whole or in part in respect of costs incurred in prosecuting the claim in the proceedings.

3. However, it is possible that costs incurred by a party in prosecuting a claim against another party in one set of proceedings, or in defending a claim by another party in one set of proceedings, may be the result of wrongful conduct by a third party, such that the first party would be entitled to recover those costs from that third party. Thus, if the wrongful conduct were tortious, the plaintiff may be entitled to be put in the position in which it would have been but for the tortious conduct. If the wrongful conduct were a breach of contract, the plaintiff may be entitled to be put in the position, as far as money can do so, in which the plaintiff would have been had the contract been performed. That is to say, if the incurring of legal costs by a party in separate proceedings can be shown to have been caused by the wrongful conduct that is the subject of fresh proceedings by that party, those costs may be recoverable as damages in the fresh proceedings.

4. In the First Judgment, I observed that, without any order of the Court, [NAME_2] could have rescinded the contracts for sale when the respective sunset dates in respect of the contracts for sale occurred. [32] [NAME_2] contends that, had it so rescinded the contracts for sale, it is likely that it would have been met with a series of claims by the Purchasers that such rescissions were not in good faith, given the increase in the value of the relevant lots in the subdivision. [NAME_2] asserts that it had indicated that it wanted to complete the subdivision and honour the contracts for sale, but the point was reached where it could no longer do so, because, in the meantime, s 66ZL of the Conveyancing Act had been enacted. [NAME_2] asserts that its commencement of the Specific Performance Proceedings against the [NAME_36] prior to the commencement of the Rescission Proceedings was evidence of its honourable intentions.

5. In the First Judgment, I held that the conduct of the [NAME_36] constituted a breach of the 2013 Deed and also constituted a breach of the 2015 Agreement, in that the [NAME_36] failed to take any steps to challenge the s 121B Order and failed to comply with the s 121B Order. I concluded, therefore, that that conduct caused delay in the completion of the subdivision. I also concluded that, had unauthorised fill not been brought onto the [NAME_36]' land in the way that it was, it is more likely than not that, subject to [NAME_2] complying with the other requirements of the Council, a subdivision certificate would have been issued in the second half of 2015. [33] I considered that it was reasonable to conclude that, since the [NAME_36]' land was part of the subdivision, a subdivision certificate would not be issued by the Council so long as the stop work direction was in place or the s 121B Order was outstanding. 6. [NAME_2] asserts that, from the commencement of the operation of s 66ZL, on 2 November 2015, until 16 May 2017, it "could not go forwards and could not go backwards" since it was forbidden by the [NAME_36] from accessing their land and it was no longer permitted to rescind. [NAME_2] accepts that the Council may have made a determination of sorts on 16 May 2017 but asserts that there was nothing in the evidence that indicated any change of heart by the [NAME_36], allowing [NAME_2] onto their land between 16 May 2017 and the date of the First Judgment, on 23 March 2018. [NAME_2] asserts that the [NAME_36] were entirely hostile to [NAME_2] and refused access to their land and that it was only the First judgment that broke the deadlock. Even then, [NAME_2] asserts, it was still attempting to gain access to the [NAME_36]' land as late as 9 April 2018.

7. It says that, as a direct result of the conduct of the [NAME_36], it lost its contractual rights to rescind following the enactment of s 66ZL of the Conveyancing Act. It says that, if it did nothing, it would be liable to an action by from the Purchasers. It claims that, by reason of the breaches by the [NAME_36], it was suffering loss in that it was incurring ongoing holding costs and interest because of its inability to complete the development and realise the sales of the lots in the subdivision. 8. [NAME_2] asserts that, in order to attempt to mitigate that loss, it gave rescission notices to the Purchasers on 13 May 2016 and commenced the Rescission Proceedings. [NAME_2] accepts that it was far from entirely successful in the Rescission Proceedings, but asserts that it mitigated some of its losses and the stalemate was broken. It says that, if the [NAME_36] had not committed the relevant breaches, [NAME_2] would not have needed to, and would not have commenced, the Rescission Proceedings. It asserts that it could not know in advance what the result of the proceedings would be and that it may have been in the position of not obtaining an order for specific performance or damages against the [NAME_36], such that its position vis-a-vis the Purchasers was no more advanced despite three years of litigation against the [NAME_36] and would still be exposed to suit by the Purchasers. 9. [NAME_2] claims the costs of the Rescission Proceedings as a head of damage suffered as a consequence of the breaches by the [NAME_36]. It asserts that the breaches by the [NAME_36] were a material cause of the losses incurred by it consisting of the incurring of its own costs of the Rescission Proceedings and the order for that it pay the costs of the Purchasers. [34] [NAME_2] asserts that it was foreseeable that, if the [NAME_36] committed such breaches, [NAME_2] may end up in proceedings against the Purchasers and be ordered to pay costs. In that regard, it is necessary for [NAME_2] to establish that it was a reasonable and natural consequence of the breaches by the [NAME_36] that [NAME_2] would have commenced the Rescission Proceedings and incur those losses. [35]

10. I do not consider that [NAME_2] has established that the [NAME_36] caused it to commence the Rescission Proceedings. The conduct of the [NAME_36], which delayed [NAME_2] by some 11 months, was not a cause of [NAME_2]'s failure to rescind the contracts for sale before it was deprived by statute of its entitlement to do so without an order of the Court. I do not consider that any conduct of the [NAME_36] was a cause of the loss suffered by [NAME_2] consisting of the incurring of its own costs in the Rescission Proceedings or the incurring of the liability to pay the costs of the Purchasers in the Rescission Proceedings.

11. While the [NAME_36] were party to the Rescission Proceedings, they were joined only in respect of the question of costs and no other relief was sought against them in those proceedings. I do not consider that the [NAME_36] were necessary parties to the Rescission Proceedings. However, in so far as the two proceedings continued together, they were necessarily involved in the Rescission Proceedings. Nevertheless, I do not consider that they are entitled, in the Specific Performance Proceedings, to an order in relation to the costs of Rescission Proceedings, either their own, or those of the Purchasers.

Conclusion 1. As I understand the position, in the light of the conclusions expressed above and those expressed in the earlier judgments, the calculation of the damages to which [NAME_2] is entitled is now a matter of arithmetic. I propose to direct [NAME_2] to file and serve draft orders in accordance with these reasons and the earlier judgments. Those draft orders should be served no later than 14 days after these reasons are published. I shall direct the [NAME_36] to file and serve a note indicating any dispute with the proposed orders within a further 14 days. If there is no dispute, I will direct the entry of judgment in accordance with the proposed orders. If there is any further dispute, each of the parties has leave to approach my associate for the purpose of fixing a date for further argument.

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Appendix 1 (The List) Extract from Affidavit of [NAME_54] sworn 27 November 2017 Paragraph 16 Identity of each of the [NAME_130], [NAME_50], myself and [NAME_131] to facilitate purchase of property:- $2,368,700.00 [COMPANY_133]:- $1,014,669.00 [COMPANY_134]:- $474,500.00 [COMPANY_135]:- $228,201.00 [NAME_103]:- $1,000,000.00 The [COMPANY_106]:- $1,327,200.00 [COMPANY_81]:- $239,200.00 [COMPANY_37]:- $1,135,454.00 [COMPANY_136]:- $790,919.00 [NAME_101]:- $86,593.00 [COMPANY_107]:- $42,000.00 [NAME_50] and [NAME_137]:- $35,397.00 [NAME_137]:- $279,386.00 [NAME_50]:- $73,750.00 [NAME_139]:- $568.232.00 $9,664,201.00

Endnotes 1. [COMPANY_13] v [NAME_3]; DGF Property Holdings Pty Ltd v Butros [2018] NSWSC 344; [COMPANY_13] v [NAME_3]; [COMPANY_13] v [NAME_14] (No 2) [2018] NSWSC 1137; [COMPANY_13] v [NAME_3] (No 3) [2020] NSWSC 510. 2. [COMPANY_13] v [NAME_3]; DGF Property Holdings Pty Ltd v Butros [2018] NSWSC 344.

3. Note that s 66ZL was altered in 2018 with new provisions following the Conveyancing Legislation Amendment Act 2018 (NSW). 4. [COMPANY_13] v [NAME_3]; [COMPANY_13] v [NAME_14] (No 2) [2018] NSWSC 1137.

5. See First Judgment at [174]. 6. [COMPANY_13] v [NAME_3] (No 3) [2020] NSWSC 510 at [17].

7. The deposit slip recorded $10 more than the sum of the two cheques. However, [NAME_64]'s bank statement indicates that $10 was subsequently withdrawn due to an "error in deposit".

8. Extracted above at [15].

9. See First Judgment at [377].

10. Referred to above at [64].

11. See Kelner v Baxter (1866) LR 2 CP 174; Black v Smallwood (1966) 117 CLR 52; [1966] HCA 2.

12. See Re Express Engineering Works Ltd [1920] 1 Ch 466; All ER Rep Ext 850. 13. [COMPANY_141] (in liq) v Robert Bosch (Australia) [COMPANY_10] [2000] NSWSC 32; 33 ACSR 680.

14. See Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418.

15. See Ex parte [NAME_15]; [NAME_16] [1964-5] NSWR 58 at 62. 16. [COMPANY_142] v [COMPANY_11] (No 3) [2012] FCA 1438 at [23].

17. See Painaway Australia Pty Ltd v JAKL Group Pty Ltd (2011) 249 FLR 1; [2011] NSWSC 205 at [275].

18. See G [NAME_18], Law of Agency (LexisNexis Butterworths, 2014) at [5.29].

19. See Verschures Creameries Ltd v Hull & Netherlands Steamship Company Ltd [1921] 2 KB 608. 20. [NAME_19], [NAME_21], P Watts, [NAME_20] and [NAME_22] on Agency (19th ed, 2010, Sweet & Maxwell) at [2-071]. 21. [NAME_144], Law of Agency (LexisNexis Butterworths, 2014) at [5.31].

22. See Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165; [2004] HCA 52 at [35]. 23. [COMPANY_145] (in liq) v [COMPANY_147] (2003) 178 FLR 1; [2003] QSC 205 at [257].

24. See above at [22].

25. See Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 at 11,117.

26. Court Book 5 (1 February 2019) at 1654.

27. Transcript 24 November 2017 at 305–306. 28. [ADDRESS] 4 (1 February 2019) at 1234.

29. Transcript 21 June 2018 at 8–12.

30. See above at [20].

31. See Exhibit GD-1 at 120.

32. See the First Judgment at [397].

33. See the First Judgment at [164] and [165].

34. See Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310 at 315. 35. [COMPANY_148] v [COMPANY_6]; Babcock Australia Ltd v Eraring Energy (2003) 56 NSWLR 51; [2003] NSWCA 6 at [79]–[80]. 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: 02 March 2021