Unrepresented Litigants' Appeal Dismissed by NSW Court of Appeal

The Court of Appeal dismissed an appeal by unrepresented litigants, affirming judgments against them. The court found that the litigants were not denied procedural fairness despite being unrepresented.

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: [NAME] v [NAME] [2023] NSWCA 36 Hearing dates: 14 February 2023 Decision date: 08 March 2023 Before: Ward P at [1]; Leeming JA at [2]; Basten AJA at [125] Decision: (1) Appeal dismissed. (2) Appellants to pay 80% of the first respondent's costs. Catchwords: APPEAL – procedural fairness – whether unrepresented litigant denied opportunity to present case – parties – [NAME] not joined to proceedings – whether [NAME] judge erred in not making findings about [NAME] – various other challenges to findings of fact – appeal dismissed Legislation Cited: Bankruptcy Regulations 2021 (Cth), r 12(3) Jurisdiction of Courts (Cross‑vesting) Act 1987 (NSW), s 7 Supreme Court Act 1970 (NSW), s 75A(8) Trade Marks Act 1995 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 7.20-7.22, 36.17, 51.18(1)(e) Cases Cited: [NAME] v [NAME] [2022] NSWCA 75 Buresti v Beveridge (1998) 88 FCR 399 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 Halford v Price (1960) 105 CLR 23; [1960] HCA 38 [NAME] v [NAME] [2020] NSWSC 1010 [NAME] v [NAME] (No 2) [2021] NSWSC 1060 [NAME] v [NAME] (No 3) [2021] NSWSC 1116 [NAME] v [NAME] (No 4) [2022] NSWSC 1402 Melrose Farm Pty Ltd v Milward [2008] WASCA 175 [COMPANY] (as custodian for [COMPANY] as Trustee for Crivelli) v IOOF Investment Management Ltd [2013] NSWCA 231; 304 ALR 436 Segelov v Ernst & Young Services Pty Ltd (2015) 89 NSWLR 431; [2015] NSWCA 156 Transport Accident Commission v Treloar [1992] 1 VR 447 Category: Principal judgment Parties: [NAME] (First appellant) [NAME] (Second appellant) [NAME] (First respondent) [COMPANY] (Second respondent) Representation: Counsel: [redacted] P [NAME] SC, [NAME] (First respondent)

Solicitors: [redacted] File Number(s): 2021/00340527 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [NAME] v [NAME] (No 2) [2021] NSWSC 1060; [NAME] v [NAME] (No 3) [2021] NSWSC 1116 Date of Decision: 24 August 2021 Before: Schmidt AJ File Number(s): 2020/94610

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment 1. WARD P: I agree with Leeming JA.

2. LEEMING JA: [NAME] and [NAME] operated a vineyard on land owned by them through [COMPANY] (a company of which they were the sole directors and shareholders). They appeal from what had been, at the time, three substantial judgments against them, comprising one amount of CAD 2,134,924 and also amounts of AUD 1,472,544 and AUD 82,611.97 against each of them, in favour of the respondent, [NAME], a resident of Canada. The judgments were entered on 2 September 2021 (see [NAME] v [NAME] (No 3) [2021] NSWSC 1116), following substantive reasons given on 24 August 2021 after a three-day hearing: [NAME] v [NAME] (No 2) [2021] NSWSC 1060.

3. The judgment in Canadian dollars represented amounts of unpaid principal, and the larger of the judgments in Australian dollars mostly represented unpaid interest which had accrued on that indebtedness. There is no dispute that the amount was borrowed, nor that only $A138,000 was repaid. There is an issue as to the appropriate currency, and indeed whether it was appropriate for [NAME] to have obtained judgment debts expressed in separate currencies for the same indebtedness. There is no dispute that the principal judgment entered against [NAME] was overstated by some $2 million, because at the time it was obtained, [NAME] had realised the proceeds of sale of [NAME]'s land in the exercise of a power of sale. This was pointed out during an application for security for costs: [NAME] v [NAME] [2022] NSWCA 75. That led to a hearing before the [NAME] judge on 13 October 2022, slightly more than a year after [NAME] had commenced proceedings in this Court, but at which [NAME] did not participate. Her Honour relied on UCPR r 36.17 and the Court's inherent jurisdiction to make an order on 17 October 2022, for reasons given in [NAME] v [NAME] (No 4) [2022] NSWSC 1402, that: "The judgment for CAD2,134,924 made on 2 September 2021 in orders 1, 4 and 7 be corrected by being reduced by CAD2,030,903.90 to CAD104,020.10, effective from the time that the orders were made."

1. The contract for sale of land was dated 18 May 2021, and it may be that that is when exchange occurred; in any event, her Honour recorded at [13] that the sales of the business and property were completed by 26 August 2021, a week before final orders had been made.

2. I am conscious of the fact that not only did [NAME] have a pending appeal, but [NAME] caused bankruptcy notices to be issued, based on the three judgments originally obtained (using a conversion rate of 1.09 based on a two significant digit approximation to the rates given by the Reserve Bank of Australia for 24 November 2021). The notices issued by the Official [NAME] on 29 November 2021 led to proceeding NSD14/2022 being commenced by [NAME] in the Federal Court of Australia. When Kirk JA dismissed [NAME]'s application for security for costs, identifying what appeared to be very substantial error brought about by failing to account for the sale of the land over which [NAME] had security, his Honour noted that it appeared that "[t]he judgment debt of some A$3.7 million has seemingly been used as the basis for bankruptcy notices being issued to each of the appellants": at [46]. A little unusually, the notice and some of the orders made by the Federal Court were included at pp 371 and 374 of the Red Appeal Book in this Court. [ADDRESS] was told the proceeding had subsequently been dismissed. The order made on 17 October 2022 was favourable to [NAME], and this Court did not receive submissions as to the power to make it. Nothing in these reasons expresses a view as to the power to make that order. If the order had not been made in the Common Law Division, this Court would have intervened and set aside the judgment which was concededly wrongly obtained. This is relevant to costs.

3. As mentioned above, there is a dispute as to the currency of the judgment debt. The significance of this is that, because of currency rate fluctuations, the cost of satisfying it in Australian dollars varies depending upon whether the exchange rate is calculated (a) at the time each interest payment falls due, (b) at the time the loan is repayable, (c) at the time judgment is obtained or (d) at the time a judgment is enforced. The permutations are capable of giving rise to appreciable variations in the obligation, when it is borne in mind that, according to the table of exchange rates maintained by the Reserve Bank of Australia, and which is recognised for the purposes of execution of judgments by r 12(3) of the Bankruptcy Regulations 2021 (Cth), one Australian dollar has bought, over the time frame in issue in this litigation, between CAD 0.8539 and CAD 1.0199: (https://www.rba.gov.au/statistics/historical-data.html#exchange-rates).

4. I shall deal with that ground in due course. However, there is a real air of artificiality to much of this appeal. Both sides were invited to indicate which of the (numerous) grounds ultimately mattered ([NAME], pp 72-73). No complete answer was given to that request, which tends to confirm my impression that little or nothing turns on most aspects of the appeal for practical purposes, unless perhaps [NAME] obtain some unexpected windfall in the future. That is because it was common ground late last year, when [NAME]'s application for security for costs was dismissed, that [NAME] had no assets even to permit the provision of security in the amount of $40,000. Most of the grounds which were agitated at length involve, at best, relatively small amounts of money, or are entirely unquantified, and will not alter the fact that [NAME] face an otherwise undisputed debt exceeding $1,000,000 which, if the basis on which the security for costs application was determined is correct, they have no prospect of satisfying.

5. Most of the grounds of appeal are directed to challenges by [NAME] to the dismissal of their cross-claim, which sought to establish claims to offset an indebtedness which, save for the issue concerning the correct currency in which the obligation was to be enforced, was undisputed. 6. [NAME] have at all times been unrepresented, and they appear to have had no assistance from a lawyer in preparing the pleadings, notice of appeal, motions, evidence and submissions. [NAME] spoke on behalf of [NAME]. He was a courteous and competent speaker, born in 1947. On the other hand, he struggled repeatedly with the distinction between pleadings, evidence and submissions, and had a poor appreciation of the legal effect of the contracts and legal structures he and his wife had entered into, some of which have the appearance of being drafted by a layperson. 7. [NAME] was also capable of saying, clearly and forcefully, things which were in the teeth of the documents upon which he relied. Two examples arose early in the hearing.

8. The first concerned the balance sheet for the "[NAME]" [NAME], which was incorporated in his submissions. [NAME] took the Court to this in order to establish that equipment which he said had been wrongfully seized by the [NAME] was in fact owned by the couple personally, rather than by their company. The document shows that the [NAME] owned plant and equipment in 2007 (when the couple operated a different agricultural operation on different land) but in 2008 when they commenced operating the vineyard, there is no entry for plant and equipment, supporting the opposite inference from that advanced by [NAME]. That led to this exchange at [NAME], pp 23-24: "LEEMING JA: And does it follow this document is wrong? APPELLANT: [redacted] LEEMING JA: I understand. Thank you. APPELLANT: [redacted] LEEMING JA: But just so that I've got the position clear, you first of all took us to this page saying it supported your complaint that her Honour was wrong to find that you didn't personally own the equipment. APPELLANT: [redacted] LEEMING JA: You now say that this page is itself wrong. APPELLANT: [redacted] LEEMING JA: And there's another document that's going to explain. Okay." 1. [ADDRESS] was not taken to the further document.

2. Secondly, [NAME] was critical of the following passage in the reasons of the [NAME] judge: "133 In his 20 November 2020 affidavit [NAME] explained: (1) that he and [NAME] became the owners of the property in 2007, under a "Walk in Walk out" agreement, subject to certain adjustments; (2) they then formed a [NAME] to operate the vineyard and entered into an assignment of an 11-year grape growers' agreement with [NAME], which Tamburlaine later sought to renegotiate and eventually defaulted on; …." 1. [NAME] said that "in her judgment [the [NAME] judge] had indicated that apparently we had created this [NAME] to make this agreement, but we didn't". It was pointed out that her Honour was purporting to summarise [NAME]'s own affidavit. [NAME] said, "Yes. Well, she's paraphrasing, but it's not correct". But [NAME]'s affidavit was precisely to the effect summarised by her Honour, leading to this exchange ([NAME], p 29): "WARD P: 'We formed a registered [NAME], to purchase and operate the vineyard.' That's your affidavit. APPELLANT: [redacted] WARD P: But sorry, you're criticising her Honour-- APPELLANT: [redacted] WARD P: --for having mis-paraphrased your evidence in circumstances where when I go to your evidence-- APPELLANT: [redacted] WARD P: --you cannot possibly criticise her Honour for something that is in your affidavit. APPELLANT: [redacted] WARD P: Poor choice of words it may have been in your affidavit. But it's your affidavit. APPELLANT: [redacted]

1. Nothing substantive turns on either of those examples. The first was one of a large number of documents consistent with the company owning the stock and other assets of the business. The second is wholly immaterial. However, both confirm that [NAME] was apt to make statements critical of the judgment from which this appeal has been brought which are quite unfounded in the materials.

2. The amended notice of appeal filed on 27 July 2022 was an improvement upon the first originating process in this Court, which was a document of some 97 pages filed in October 2021. Even so, it fell well short of complying with the rules, which require a brief, and specific, statement of the grounds: UCPR 2005 (NSW), r 51.18(1)(e). It incorporated references to evidence, extracts from emails, legislation and other extrinsic material and in large measure, its length (33 pages) was occupied by assertions and submissions. Regrettably, the first ten pages contained multiple numberings of paragraphs, but pages 11 onwards addressed ten topics under the headings "Mortgage Document", "Breach of Grape Agreement – Wine Inventory Ownership", "Mortgage Debt Calculation", "Sale of asset amounts not accounted for in Justice Schmidt's calculations", "Wages for [NAME]", "Equipment and Machinery", "[NAME]", "[COMPANY]", "[NAME]" and "Pleadings from the tabled Short Minutes of Order". It became clear during [NAME]'s oral submission that each of those documents should be regarded as a separate ground of appeal. He addressed those grounds in the order of the amended notice of appeal, and I shall largely adopt the same course.

3. The appeal books were also defective. They were provided very late (in large measure, on the evening of the day before the hearing). They contained affidavits which were read at trial but did not disclose the portions to which objections had been taken and acceded to. The ordinary notion of red books for pleadings, judgments and notice of appeal, orange books for submissions and blue books for evidence was not appreciated. It is clear that a great deal of the material tendered at trial was not included (precisely how much is not clear because neither the Court books tendered by each side at trial, nor their table of contents, were included in the appeal books) and it is clear that [NAME] wished this Court to determine the appeal by reference to a large amount of material which was not sought to be adduced at trial. Some of the documents sought to be tendered as fresh evidence were in fact tendered at trial. There were multiple paginations on most pages, and at least in the lever arch folders which I received, the paginated pages were not in order. The not unpredictable result was that both sides supplemented the appeal books with additional documents during and immediately after the hearing.

4. The [NAME], to their credit, supplied a small folder of documents which had been in evidence before the [NAME] judge and which were critical to the disposition of the appeal. That was helpful and saved time, although even then some critical documents (such as the deeds establishing the loans) were not included. The position of an unrepresented appellant who struggles to discharge the obligation upon him or her to produce appeal books is not unfamiliar, and ordinarily time and money on all sides will be saved if the respondent takes the course taken by [NAME]'s lawyers.

5. I also mention the state of the appeal books in order to explain the way in which I shall address the application to adduce further evidence. After judgment was reserved, I took the course of reviewing the file at first instance, which as it happens, includes some exhibits which were plainly tendered at trial. That has been useful to identify what is new.

Procedural background 1. In the Common Law Division, [NAME] moved on a statement of claim seeking judgment in Canadian dollars and alternatively Australian dollars based on the non-repayment of sums advanced by him to [NAME] secured by a mortgage over land owned by them on which they operated a vineyard. Further, the loan was guaranteed by [NAME], of which [NAME] were the shareholders and directors, and [NAME] granted a "security interest" over its present and after-acquired property (cl 8 and item 2 of Schedule 3), which was registered under the Personal Property Securities Act 2009 (Cth).

2. The loan was mostly not repaid. The [NAME] judge recorded at [2] that on 17 April 2020 [NAME] had appointed a [NAME] of [NAME], to [NAME], and that on 11 [NAME] was also appointed the [NAME] of the property, which [NAME] had not vacated. The former appointment was by deed poll dated 17 April 2020 pursuant to the security interest granted by [NAME] over its personal property, and the latter was pursuant to the mortgage granted by [NAME].

3. On 29 July 2020, on [NAME]'s application for summary judgment, Davies J gave judgment for possession of the land, finding very substantial indebtedness on the part of [NAME] and that none of the matters raised in the defence was an answer to a claim for possession, although they might give rise to a basis for an accounting: [NAME] v [NAME] [2020] NSWSC 1010. No appeal has been brought from those orders.

4. The [NAME] judge recorded at [2] that there was a dispute as to when [NAME] took possession of the land, but that there no was issue that [NAME] vacated by February 2021, shortly before the Sheriff was to evict them. As noted above, the land and the business were sold by the [NAME], with completion occurring in August 2021.

5. Left outstanding were [NAME]'s claim in debt and [NAME]'s cross-claim seeking relief based on a wide range of claims, partly directed to the conduct of the [NAME] appointed by [NAME]. This was heard by the [NAME] judge over three days, who thereafter promptly produced comprehensive reasons for judgment from which this appeal has been brought. In order to address the first ground of appeal, it is necessary to explain in some detail the course of the trial.

The course of the trial 1. The hearing before the [NAME] judge occupied parts or all of Tuesday 27 April, Tuesday 25 May and Tuesday 20 July 2021. It is necessary to describe what occurred, in part because of some unusual features of the trial, but mostly because at the forefront of the grounds of appeal were complaints that [NAME] had been denied procedural fairness.

2. The morning of the first day was occupied by the tender of the Court book and the documents upon which [NAME] relied. Shortly after the morning adjournment, there was the following exchange ([NAME], p 22): "HER HONOUR: Now there were various affidavits which have been received. I don't understand that you seek to cross-examine [NAME], or there has been no application for [NAME] to be cross-examined. [NAME]: That's correct. HER HONOUR: So we are at the stage then of moving to the submissions? [NAME]: Yes."

1. Early in counsel's address, counsel asked whether her Honour would prefer him to pre-empt those of the issues raised in [NAME]'s cross-claim, to the extent he was able to do so, before [NAME] was called upon. Her Honour replied ([NAME], p 23): "HER HONOUR: I think it would be helpful if he understands the totality of your case so that he can have an opportunity to respond to all of it. It might just simplify the process for him given that he is unrepresented. Is that convenient to you [NAME]? FIRST DEFENDANT: [redacted]

1. The hearing continued on that basis. Before lunch, counsel explained the basis of [NAME]'s claim, and then turned, after the lunch adjournment, to the cross-claim. Her Honour enquired as to the unusual course taken in the litigation, whereby the mortgagee had been placed in possession prior to determining the indebtedness of the defendants: [redacted] plaintiff: [redacted] [NAME]: No. HER HONOUR: Does that need to be dealt [with] in the Court's orders? [NAME]: No, [NAME]. The plaintiff, as mortgagee in possession, has an obligation to provide [an] accounting after it has completed the sale of the property. As mortgagee in possession it doesn't have an obligation now to do it but it is an obligation that it will have in the future. HER HONOUR: What does that mean, in practical terms? Could the judgment in total be enforced against [NAME] prior to the sale? [NAME]: Yes. HER HONOUR: With the result that if and when the property was sold there would have been accounting then? [NAME]: Yes. HER HONOUR: And if the property was not sold then in order to deal with the situation that [NAME] would be left in they would have to take some further proceedings to presumably force the sale? [NAME]: Yes. If they considered there had been some default by [NAME] to [effect] the sale."

1. The balance of the day was occupied by exchanges between her Honour, [NAME] and [NAME] concerning the indebtedness, which identified that there was a relatively small difference between the parties. The matter was stood over on the basis that the hearing would be completed on the second day.

2. At the commencement of the second day, a defence to the amended cross-claim was filed and counsel explained that it had also been verified by [NAME], the [NAME]. Counsel said: "[NAME] is the [NAME]. He has not been joined to these proceedings in his personal capacity, or, in fact, any capacity, and as was raised on the last occasion, the second cross-defendant is identified as [NAME], which is not an entity [that is] capable of being sued. Nevertheless, we have taken the step of [NAME] verifying this pleading because allegations are made that relate to his receivership."

1. After hearing at some length from [NAME] concerning the indebtedness, [NAME] introduced his submission that the Commonwealth Bank would never have taken the steps that [NAME] took and said that he had some video and photographs on which he sought to rely: [NAME], p 101. There was a short adjournment to permit [NAME] to tell counsel what the evidence was, her Honour stating: "[T]he time for leading evidence has finished. You have had that opportunity and now we are at the point of receiving your submissions so if there is even further evidence you want to lead, you will have to make an application to again reopen your evidentiary case." 1. [NAME] then addressed, by reference to a spreadsheet, his claim that the [NAME] sold some 1,666 bottles to [NAME] at $3 per bottle, which [NAME] said was at a substantial undervalue – he said the total should have been $431,305, rather than the $66,000 which [NAME] paid. There was the following exchange ([NAME], p 112): "HER HONOUR: Somewhere in the evidence you say that there is a document created by the [NAME] which confirms what appears on this page? FIRST DEFENDANT: [redacted] HER HONOUR: All right. I am asking you this question because, as I keep reminding you, the Court has to proceed on the evidence. FIRST DEFENDANT: [redacted] HER HONOUR: You say somewhere in here there is evidence of this sale at $3 a bottle to [NAME]. You need to draw my attention to where that is." 1. [NAME] then turned to his claim that the effect of the appointment of the [NAME] was that attempts to sell the land for some $4 million were frustrated, resulting in the sale of the land at a substantial undervalue. Shortly before lunchtime, there was the following exchange ([NAME], p 118): "FIRST DEFENDANT: [redacted] HER HONOUR: Is any of this dealt with in your evidence? FIRST DEFENDANT: [redacted] HER HONOUR: You can't give evidence from the Bar table, [NAME]. FIRST DEFENDANT: [redacted] HER HONOUR: Thank you, I just need to stop you. I am reminded that because of the listing which was due to start at 9.30 today, we are due to adjourn for lunch at 12.30 which means that we have to resume at 1.30 not 2."

1. After lunch, [NAME] was sworn in. He adduced evidence of the videos and photographs, and he briefly explained the provenance of the videos. There followed this exchange while [NAME] was giving evidence ([NAME], p 122): "HER HONOUR: Was there any evidence you wanted to give about- FIRST DEFENDANT: [redacted] HER HONOUR: All right. Thank you. That's your evidence? Thank you. FIRST DEFENDANT: [redacted] HER HONOUR: Do you want to move on-- FIRST DEFENDANT: [redacted] HER HONOUR: Do you want to move on- [NAME]: I object to that evidence, [NAME]."

1. Counsel objected to the evidence on the basis that there was no possible way he could test it. He said that he did not have a reasonable opportunity to test that the vineyard was disease free when the video was recorded, or that [NAME] and [NAME] had inspected the premises and satisfied themselves that the vineyard was disease free. In response, [NAME] said that he had a document referring to the vineyard being disease free, which was one of the documents supplied earlier that morning ([NAME], p 123). Ultimately, her Honour ruled that she was not going to receive the testimonial evidence: [NAME], p 126.

2. The transcript recorded [NAME] then seeking to tender further photographs, some of which were admitted, others rejected. [NAME] then referred to email exchanges which had not been served, and in answer to the judge's inquiry, confirmed that he was making an application for adjournment to put on an affidavit and to give [NAME] an opportunity to meet the new case. That was opposed although, during the course of argument, [NAME] appears to have suffered a medical incident and advised that she had been told that she should go to the Emergency Department. Her Honour granted a short adjournment which was not opposed. Her Honour confirmed to [NAME] when the adjournment was granted, that "you haven't completed the evidence you were giving. And I haven't ruled on your application for adjournment so that you can lead further evidence. I am not inclined to grant that application. I think it is just too late": [NAME], p 136. However, her Honour advised [NAME] that he should reduce to writing the further evidence he wanted to adduce and also provide a written outline of submissions within 14 days. The matter was stood over to 20 July 2021.

3. The third day of the hearing, 20 July 2021, took place with both sides appearing by audio-visual link. [NAME] sought to read two affidavits which appear to have been prepared and supplied outside the time indicated by her Honour, although nonetheless some weeks beforehand. [NAME] had a series of objections which had not been communicated to [NAME]. Her Honour was politely critical of that approach, but counsel proposed the following course ([NAME], p 139): "I think the most efficient way is to treat the affidavits, the other affidavits, as being read by [NAME] and treat the objections as matters of submissions and ultimately [NAME] will deal with that when making the final determination and give to those parts of affidavits the weight that should be given having regard to the objections."

1. Contrary to that suggestion, the next 20 pages of transcript were devoted to objections, with her Honour rejecting some parts of the affidavits, and letting others into evidence on the basis proposed by [NAME]. The plaintiff sought to read a two page affidavit of [NAME] which responded to [NAME]'s evidence, principally by annexing documents from the company's records: [NAME], p 162. [NAME] confirmed that his case was closed. Her Honour said, "That would take us back to the submissions which you wish to make, [NAME], … unless you want to agitate an application for leave to lead even further evidence. Do you want to do that?" ([NAME], p 168). [NAME] made that application which was refused. Her Honour then said, "Now is your opportunity to make further submissions", and [NAME] proceeded to do so, with relatively few interruptions from her Honour. Those submissions continued until [NAME], p 186, when in response to her Honour's question, "Was there anything else, [NAME]", [NAME] responded, "No, I think that just about wraps me up [NAME]". [NAME] addressed in reply and the hearing was completed at 3.33pm with judgment being reserved.

Application to adduce further evidence 1. On appeal, [NAME] sought to adduce a suite of evidence which had not been tendered at trial. This was opposed on the basis that the requisite "special grounds" in s 75A(8) of the Supreme Court Act 1970 (NSW) had not been made out, all of it having been evidence available to [NAME] at first instance. The respondent's stance was plain on the face of the short (11 page) written submissions filed on 1 December 2022 to which [NAME] supplied an elaborate (34 page) response.

2. At the outset of the hearing of the appeal, [NAME] was directed to this three times ([NAME], pp 2(6), 4(19) and 4(45)). On the third occasion the presiding judge said, "I thought that I had suggested that perhaps the logical place to start was your motion to adduce further evidence. But if you want to deal with that later in your submissions, that's a matter for you." Towards the conclusion of [NAME]'s oral submissions in chief, after he had addressed each ground of appeal, her Honour drew [NAME]'s attention to the issue concerning further evidence: at [NAME], p 51(3). Twice thereafter [NAME] was directed to the respondent's proposition that none of the material he now sought to adduce was material which could not have been tendered at trial. On neither occasion did [NAME] answer the question in a meaningful way. He said: "I've got fresh evidence on the IP, the trademarks, on the ASIC. I've got expanded evidence on the [NAME], which I will find on the wines. I've got expanded evidence on the value of the wines that were sold to [NAME]. And, I'll just have a look, I've got expanded evidence on all the sales contracts. We didn't have a chance to go through them all. There are four of them. I went to China at [NAME]'s insistence, which is in the evidence, to meet with the prospective - that - that customer, that potential purchaser was a multi-billionaire. He would have purchased the property. But COVID stopped him. I was there until December 23, 2019, and travel restrictions came in February, when COVID broke out."

1. The second exchange was as follows: "WARD P: … [Y]ou'll see that the respondent's position is that exceptional circumstances have not been demonstrated by you for evidence to be adduced that could have been given at the earlier hearing. Do you want to identify what you say are the exceptional circumstances? APPELLANT: [redacted] WARD P: I see. APPELLANT: [redacted] I mean, those - those accounting records - and a lot of those records came, came from the administrator, the [NAME], not from us. I tried to use his documents out of his affidavit as much as I possibly could. And the valuation - she questioned the valuation of the wines. That's a document that the [NAME] produced, not me. So I'm basing a lot of it on unreasonable inference on faulty consideration and unreasonable verdict, unreasonable justice."

1. The application falls to be determined by reference to the written submissions in support (especially, [8]-[13] on the 34 page "Amended response to respondent submission of 1 December 2022" filed on 12 February 2023 and the documents themselves). I have also had regard to the Common Law Division file. I have taken that course because [NAME] are unrepresented, and I wanted to know if there was something which on its face appeared materially to alter the evidentiary position.

2. Some of those documents sought to be tendered by [NAME] are clearer copies of documents which were in evidence. Others are affidavits by witnesses of [NAME] fact sworn after the trial. By way of example, there is an affidavit of [NAME] made in November 2021 who gives evidence confirming that he witnessed the execution of a contract between [NAME] and their company relating to [NAME]. There are also business records which not only are not demonstrated to have been unavailable to [NAME] at trial, but are of minimal weight. In large measure, [NAME] correctly described the evidence he sought to adduce in his descriptions reproduced above. It is clear on the face of the documents that the evidence was reasonably available to him to adduce at trial. [NAME] has not submitted to the contrary.

3. In oral submissions, [NAME] said that he had not appreciated that the documents upon which he relied would be rejected by the judge. Whether that is to be understood as a reference to them being ruled inadmissible or not found to sustain a finding for which he contended (or both) is not to the point: this falls short of establishing special grounds. The application to adduce further evidence, insofar as it extends to evidence not admitted at trial, should be dismissed.

Procedural fairness (grounds 1, 2 and 3) 1. [NAME] addressed these grounds first, a course which accords with Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2] and [117]. 2. [NAME] complained that the [NAME] judge "directed the plaintiff's lawyer to present the plaintiff's case", and then to continue through the defendants' evidence. He said that he objected to the plaintiff's lawyer dissecting his submissions, evidence and annexures, which were taken out of context. He said that during the course of his submissions, "Justice Schmidt adjourned the hearing stating words to the effect, 'there will be no more hearings, all further evidence must be submitted in writing'". In his oral submissions in this Court, [NAME] said at [NAME], p 5(20): "… we did not feel that we got a fair hearing. What I wanted to say is we repeatedly objected to the lack of opportunity to present [our] defence. When we did have the opportunity to [present] the - the defence, we were up to argument 12 of 35 when the Court was adjourned. And we were told there'd be no further hearing and that we were to submit in writing our other points."

1. The gravamen of this complaint is that the appellants were not permitted to present their case. Despite the length of his written submissions, [NAME] made no attempt to give transcript references to the events of which he complains. It is for that reason that I have read, and summarised, the entirety of the transcript. It contradicts [NAME]'s submissions. 2. [NAME] was explicitly given an opportunity to be heard as to the course proposed by her Honour, that counsel would identify his response to the cross-claim before hearing from [NAME]. The transcript records [NAME] agreeing to that course.

3. The second day of the hearing ended early, owing to [NAME]'s medical event. The third day of the hearing included time for [NAME] to make full submissions, which ended only after he told her Honour that he had said all he wished to say. 4. [NAME]'s written submissions on the appeal include the following: "My request to call witnesses to validate the evidence or call [NAME] as a witness was immediately denied by Justice Schmidt with comments about 'ambushing'. As every law enforcement officer knows, 'you cannot ambush a witness that is telling the truth.'" 1. [NAME] reiterated this in oral address. But the transcript does not disclose anything like this occurring. First, so far as the transcript records, there was no application made by [NAME] to cross-examine [NAME]. Secondly, not only was there no application, but the [NAME] judge explicitly raised the fact that, as she understood it, neither side had applied to cross-examine the witnesses called by the other side. Counsel confirmed that was his understanding. The transcript does not record [NAME] making any response.

2. It is true that there were references to "ambushing" by the [NAME] judge. In a submission supplied after the hearing, [NAME] identified this at [NAME], pp 161-163. The attachment to the email labelled "D2 J 161-163 Ambush comment.pdf" was in fact pp 47-101 of the transcript. Page 101 of the transcript contains a reference to "ambush". So too does p 160 of the transcript. It is not quite clear to me to which passage [NAME] refers, and so I shall deal with both.

3. Just before the morning adjournment on the second day of the trial, when the evidence had closed and the parties were making submissions, [NAME] referred to letters and emails which were not in evidence. Her Honour then said ([NAME], p 101): "Before we go any further I think you need to tell [NAME] [scil [NAME]] what that is, what that evidence is, and we should deal with the question of whether or not you should have leave to lead more evidence. Are you in a position to have that discussion with Mr [[NAME]]? If you are I will take a short adjournment so that can happen. I do that because the rules of court and the processes of the Court are all designed to ensure that parties do not litigate with each other by ambush or surprise." 1. [NAME] was then permitted to tender certain photographs. As stated above, that hearing finished unexpectedly because of [NAME]'s medical incident, but [NAME] had the opportunity to serve evidence before the third day of the hearing in July.

2. The second reference to "ambush" occurred on the third day of the trial, during the course of resolving objections to an affidavit affirmed by [NAME] (a man who had done contract work on the vineyard). There was the following exchange concerning paragraph 22 of his affidavit, which expressed an opinion for the decline in the quality of the vines after November 2020, namely, a combination of incorrect trimming, relying on contractors from other vineyards and not spraying at the right time. The paragraph was rejected. (The ruling was not subject to appeal, but it was plainly correct.) In the course of argument, the [NAME] judge explained to [NAME]: "[ADDRESS] requires that litigation not be conducted by ambush or surprise and, so, people have to provide affidavits which discloses the evidence which they are called to give. [ADDRESS] does not permit, except with leave, oral evidence to be called, particularly from people who seek to give evidence of expertise. Now, very late in these proceedings, you sought to call this evidence and without objection it has been led. Even if called orally and Mr [[NAME]] purported to give evidence like this, it would be objectionable. I understand that it's difficult, [NAME], but the law applies equally to all those who appear before the Court, whether represented or not. I don't propose to receive para 22."

1. Neither of the references to "ambush" reflect what [NAME] asserted. The result is to confirm the conclusion that [NAME] has a tendency to make serious allegations about the conduct of a trial, but without subjecting himself to the discipline of referring to the transcript to ensure his recollection is accurate.

2. In the submission supplied two days after judgment was reserved, contrary to the limited grant of leave, which was explicitly confined to the provision of transcript references, [NAME] said the following: "This reference was not specifically about [NAME]'s affidavit. The statement was made in discussion ensuing after our testimony that we were not involved in [any way] with [NAME]'s buy out of the [NAME]'s mortgage and the Appellant's contention [that] the [NAME] would have auctioned the property at its peak presentation and worked with us to ensure the vineyard was not trashed. The vineyard was operationally breaking even and in fact made a $25 thousand + operational profit from April to October 2021 see attached annexure AE-E page 11. [NAME] that Justice Schmidt refers to is actually [NAME]. We took Justice Schmidt's comments to mean we were not going to have the opportunity to dispute the plaintiff's testimony with further evidence or cross-examination."

1. The gravamen of that submission is incorrect. The reference is, self-evidently, part of an explanation for her Honour accepting the objection to paragraph 22 of the affidavit. The issue is not how [NAME] now say they understood what her Honour said, but whether an objective bystander might reasonably apprehend that the [NAME] judge might not bring an impartial mind to resolving the dispute. And in any event, it is plain from the transcript that [NAME] did not at the time believe that there was no prospect of adducing further evidence, because he repeatedly applied to do just that ([NAME], p 161, "We wish to put on another affidavit concerning [NAME]'s evidence") and then at [NAME], p 168 her Honour asked [NAME] whether he wanted "to agitate an application for leave to lead even further evidence" which he did (this was in anticipation of a witness who would give evidence of the domain names and websites).

2. Finally, towards the end of his oral submissions in this Court, [NAME] asserted that he had been denied the opportunity to cross-examine [NAME]. He was unable to point to where this occurred, and was permitted to supply a note identifying in the transcript where it did. [NAME]'s submissions contained a heading "Appellant's [NAME] be sworn in" and it is true that, when dealing with an objection to his own evidence based on the impossibility of [NAME] being able to deal with it, [NAME] said "if [NAME] would like to swear himself in, you know, he can either deny or confirm that that's the case". The [NAME] judge responded, "That's not a basis on which that objection can be dealt with" ([NAME], p 123). There is nothing untoward about that exchange. More importantly, there is nothing in the transcript to which [NAME] has pointed, or which I, reviewing it independently, have found, that denied [NAME] the ability to cross-examine a deponent. He never applied to do so.

3. There is a further reason for addressing these matters. I was at first concerned that the [NAME] judge expressed views that [NAME] was not a reliable witness, in circumstances where he was not cross-examined and in very large measure was an advocate rather than a witness. Her Honour said at [106]-[108]: "While what remained to be resolved in relation to [NAME]'s case depended on the proper construction of documents, the onus lies on [NAME] and [NAME] to establish an evidentiary basis for the orders which they seek. They relied on affidavits sworn by [NAME], numerous documents, including documents he had created, as well as affidavits sworn by others, to meet that onus. Despite those affidavits corroborating some aspects of [NAME]'s evidence, I came to have reservations about his credibility and the reliability of his evidence. I have concluded that [NAME]'s evidence must be approached with some caution and on issues which must be determined, may not be accepted without corroboration."

1. However, although I have only seen [NAME] making submissions, I have formed the view that he will plausibly and at times forcefully say things which are contrary to the documents on which he relies. The misreadings and misapprehension of the transcript referred to above illustrate this. That is not to imply that [NAME] is knowingly making untrue statements. It is easy to underestimate the pressure that an unrepresented litigant aged 76 faces in advancing an appeal. It is much more likely that [NAME] does not fully understand the legal effect of many documents, and reads them selectively with a view to relying upon them to support an aspect of his case.

2. But whatever be the explanation for the incorrect statements [NAME] makes, I see no error in the cautious attitude expressed by her Honour. Ultimately, this was dispositive of a number of [NAME]'s claims, which her Honour found had not been established on the evidence. 3. [NAME] also included within this ground a complaint that the [NAME] judge should be "overturned because of untruthfulness, misparaphrasing and incorrectly construing evidence". Those matters are addressed in the remaining grounds of appeal. There is a difficulty in identifying the remaining grounds of appeal because [NAME]'s amended notice of appeal has two headings "Grounds of Appeal". The notice has numerous pages which are repetitions of earlier pages, and the paragraph numbering is haphazard. I shall adopt the same course adopted by [NAME] in oral address. He treated grounds 4, 5, 6 and 7 as being a complaint about the way his documentary and affidavit evidence was treated. Ground 8 was based on the mortgage, ground 9 on the ownership of the grapes and wine inventory, ground 10 on the calculations of indebtedness, ground 11 on his claim for wages, ground 12 on the claim for equipment and machinery, ground 13 on the claim for domain names and intellectual property, ground 14 on the sale price achieved by the [NAME] for the sale of the vineyard, ground 15 on [NAME], and ground 16 was a complaint about the way the [NAME] judge decided the case based on the pleadings.

Treatment of evidence (grounds 4, 5, 6 and 7)

1. In part this overlapped with the complaints about procedural fairness. Thus his assertion that his request to call [NAME] "was immediately denied by Justice Schmidt with comments about 'ambushing'", which is not what occurred, was part of ground 4. Otherwise, these grounds amount to a generalised complaint that the findings for which [NAME] contended were not made based on the evidence he relied upon. In part this turns on the way the case had been pleaded, and in part upon the fact that the documents upon which [NAME] relied do not in fact support the proposition for which he contends.

2. The aspect of these grounds which was elaborated orally at greatest length concerned two valuation reports. [NAME] was critical of the finding by the [NAME] judge that he had failed to establish that the condition of the property depreciated after October 2020. A deal of the photographic and video evidence which he sought to tender (some successfully, other parts unsuccessfully) was directed to this issue. In this Court, he pointed to two appraisals by the same [NAME], one based on an inspection on 24 September 2020 which valued the property at $2,750,000 as at 6 October 2020 and made no mention of disease. The other was based on an inspection of 21 March 2021 and valued the property at $2,350,000. The latter report stated: "We note that since the last valuation dated September 2020 there has been a report completed and found that the current vine having Downy mildew throughout which will and has affected yield loss and predominantly all is not of quality and therefore we have not attributed any value to the trellised vine within our calculations [sic]." 1. [NAME] maintained in oral submissions that the [NAME] judge had failed to appreciate his point that there were two valuations, one just before the [NAME] took possession of the land and one six months later, with a $400,000 diminution in value attributable in very large measure to the Downy mildew which affected the vines. In fact, he told the Court that he had only discovered a few weeks before the appeal was heard that there were two valuations: [NAME], p 9(5). [NAME] relied on this to support his contention that the [NAME] had poorly maintained the property. He described his submission as follows at [NAME], p 15(15): " … the vineyard was in pristine condition on October - in October and it was trashed by March and the appraiser dropped $320,000 off the appraisal value because of that and stated so, and - and her Honour has moved that to October and then blamed the state of the vineyard on my management and on our practices."

1. I do not think [NAME] is correct. It is true that the two valuations are very similar in appearance (the latter is evidently an update of the former and has substantially the same format and photographs, although of course there is a different inspection date and valuation on the final page), and that if one did not read each carefully, one might conclude that they were multiple copies of the same document. However, the [NAME] judge not only referred repeatedly to the latter report, but also referred to the October report at [191]. At [230] her Honour referred to "the valuations [plural] which [NAME] obtained".

2. The [NAME] judge rejected this claim on the basis of an absence of independent expert evidence, as well as a scepticism of [NAME]'s evidence: at [199]. Her Honour also reiterated that [NAME] was not a party to the proceedings: at [202]. Her Honour proceeded on the basis that it was not possible to make findings of breach of duty against [NAME]. That did not disclose error. [NAME] was not a party, and that came about in the way described below when dealing with ground 16. [NAME] was a witness whose affidavit was read, [NAME] did not cross-examine him so as to put the claimed breaches to him. Ultimately her Honour determined the case on the basis of [NAME] failing to establish a case against [NAME], concluding at [203]: "But the evidence relied on did not establish a basis on which it could be concluded that any duty which [NAME] were owed by [NAME] has been breached by his refusal to remove the [NAME]. Nor have they established circumstances warranting the [NAME]'s removal."

1. It is best to deal immediately with the substance of [NAME]'s complaints about [NAME].

Pleadings from the tabled short minutes of order (ground 16) 1. [NAME] complained that, "Justice Schmidt repeatedly stated in her judgment with words to the effect that we, 'did not make claims' or 'did not amend our statement of claim'". 2. [NAME] is correct to state that much of his complaint, including those concerning the conduct of [NAME], was resolved against him on the basis that it had not been pleaded. That occurred in the following way. 3. [NAME]'s cross-claim purported to join as the second cross-defendant "[NAME]". Her Honour accepted [NAME]'s submissions that [NAME] was a business name, not a legal person capable of being sued. No attention appears to have been given at any time to UCPR rr 7.20-7.22 which deals with cases where a plaintiff has sued a business name. Were that all that occurred, there would be greater force in [NAME]'s submissions.

4. However, [NAME] was supplied as a witness by [NAME], whose position was that the [NAME] was not a party to the litigation, but that if [NAME] were sued personally, [NAME]'s solicitors had instructions to accept service.

5. It is easy to see how that stance might be confusing to many unrepresented litigants. However, it was raised throughout the hearing.

6. In opening the case, counsel for [NAME] said ([NAME], p 43): "The cross-claim simply refers to the second cross-defendant as [NAME]. That is not a legal person capable of being sued and it was pleaded that in the cross-claim with all the strike through amendments and we have pleaded that as an issue and it has never been addressed by [NAME]." 1. [NAME] contended ([NAME], p 176) that a concession had been made concerning [NAME] in the hearings concerning a writ of possession. Counsel for [NAME] disputed that. Evidently her Honour obtained documents relating to that hearing, for [NAME], p 192 records: "HER HONOUR: Just one moment. [NAME] appeared on 2 October 2020 before Davies J at a time when there was no cross-claim and there was a discussion about a cross-claim being filed and his Honour saying to [NAME] that he was going to take action in relation to the wine, he would have to make a decision about whether the claim was to be made against [NAME] or the [NAME] or both of them because [NAME] may not be liable for what the [NAME] [did] and the matter was adjourned. Then it came before Davies J on 13 November when [NAME] appeared again and he had filed a cross-claim and [NAME] mentioned the appearance for the second cross-defendant, which is [NAME], and there were some short minutes which proposed that defences be filed. Then, on 5 February 2021, when the matter came again before Davies J, [NAME] said - his Honour asked what the position with the [NAME] was and [NAME] said, 'The defence to the amended cross-claim, including a verifying affidavit from the [NAME], was drafted on the basis that [NAME] is not an entity that can be sued; that is addressed at the beginning of the defence,' and he said, 'My instructions are that if it was necessary that my instructors would appear for the [NAME] if he was ultimately to be joined but that's the way we have dealt with it to date, so I don't formally appear for the [NAME] today.' His Honour said, 'I see. So the [NAME] is an individual who has a registered business name of [NAME]. Is that right?' [NAME] said, 'Yes. I believe [NAME] is a company but certainly the individual is [NAME] and [NAME] is a business name.' [NAME] said, 'We are suing both [NAME] and [NAME].' His Honour noted that the amended statement of cross-claim doesn't identify [COMPANY], just [NAME] and that, 'You can't sue a business name. You either sue a company or a person.' His Honour said, 'It sounds as if, clearly, the party ought to be amended so that it refers to [NAME].' His Honour said, 'If you want orders to be made against [NAME], at some time, he is going to have to become the party to what you are claiming.' [NAME] said, 'I am prepared to make that change, if it's able to be done.' There was then a discussion about what the consequence might be. But as I followed, despite that [NAME] has never been made a party." (Emphasis added)

1. There is nothing to suggest that any aspect of the procedural history described by her Honour was inaccurate. 2. [NAME] never produced a document in these proceedings naming [NAME]. They maintained a claim against "[NAME]" (which was the second cross-defendant) in circumstances where they had been told repeatedly and unequivocally that [NAME] was not a legal person, that they needed to sue [NAME] by name if they wished to do so, and indeed that [NAME]'s solicitors had instructions to accept service. In those circumstances, which are a little unusual, there was no error in the [NAME] judge proceeding on the basis that [NAME] must be taken to have not sued [NAME]. (Indeed, any other conclusion would face a further problem, because neither [NAME] nor his firm are parties to this appeal.) 3. [NAME] contends that it was sufficient for him to file proposed short minutes of order. The difficulty he faces is that [NAME]'s claim in debt was established by a very simple pleading, which was accompanied by a document identifying the orders he sought. [NAME] wished to advance a number of claims of breach of duty, raising contested facts. While a court will take steps to ensure that an unrepresented litigant is not unduly disadvantaged by the absence of legal assistance in formulating his or her case, there are limits to what a court can do. [NAME] were told that if they wished to make allegations of breach of duty against the [NAME], they needed to sue him and articulate what those breaches were. They were told that they needed to amend their cross-claim, but that the plaintiff's lawyers had instructions to accept service. [NAME] may not have understood this, although it was said clearly and with a view to their understanding it. But for whatever reason, they did not take the steps they had been told were necessary.

4. In those circumstances, there was no error in dismissing the claims based on breach of duty by the [NAME].

Complaints about Memorandum no. AE720944 (ground 8) 1. [NAME]'s written submissions complained that he and his wife were not given a copy of memorandum no. AE720944 in the mortgage documents. He also submitted that the type size of the reference on the mortgage front page did not meet the minimum font requirement of "Arial 11 for a legal loan document according to the 'National Mortgage Form Design Specification'" published by the Australian Registrars' National Electronic Conveyancing Council. The oral submissions took the matter no further.

2. This ground is not made out. There is no dispute that each of [NAME] (and [NAME]) personally filed the registrable mortgage dated 18 January 2016 which identified as the provisions of the mortgage both "Annexure A hereto" and "Memorandum no. AE720944" filed pursuant to s 80A of the Real Property Act 1900 (NSW). The Deed of Mortgage, which was also signed by [NAME], states: "this Deed of Mortgage containing the agreements of the parties is comprised by this statutory form with this annexed summary and execution page and Memorandum No. AE720944, a copy of which the mortgagor acknowledges receiving."

3. It is true that the typeface of the reference to the memorandum on the registrable mortgage, while perfectly legible, is smaller than 11 point. It is also true that the reference appears to be in 10 or 11 point on Annexure A. The guidance issued by the Australian Registrars' National Electronic Conveyancing Council does not subvert the legal effect of the registration of the registrable instrument and the Deed, each of which [NAME] signed in person. What is more, the specification upon which [NAME] relies is stated to be version 1.0 and was published in May 2016, which is after the mortgage and the Deed were executed. Further, each of [NAME] signed an acknowledgment stating that they had read "the Deed of Loan, mortgage and mortgage memorandum". Ground 8 should be rejected.

Ownership of the grapes and wine inventory (ground 9)

1. The first of two complaints of the sale of the wine inventory concerns its ownership. [NAME] contends that the wine was owned personally by [NAME] trading as a [NAME]. He sought to rely upon a "Grape sales Contract" between [NAME] as partners and [NAME], the effect of which was that the partners agreed to sell the entire annual harvest of the vineyard to [NAME] for $400,000. The term of the agreement is not plain on its face. The agreement states: "Breach of contract: [COMPANY] breach this agreement, it is within the Browns' exclusive right to cancel the Agreement, and undertake all and any means for redress of payments owed. All rights [to] grapes and wine made from unpaid grape deliveries remain the exclusive property of the Browns."

1. By letter dated 28 June 2021 to [NAME]'s solicitor, [NAME] asserted that [NAME] defaulted on payment for grapes harvested for the years 2008-2019. The letter also stated: "this contract has been defaulted for years 2010-2030" [sic]. The letter concluded: "This letter is a demand to:

1. Recognise GP & A [NAME] title to all any wines labelled Produced by: [NAME] of Produced by: [NAME], 2. Cease and desist on selling, licencing or using any wines labelled Produced by: [NAME] of Produced by: [NAME], 3. Immediately cease any communication to any company or warehouse purporting that [COMPANY]. has title to any wines labelled Produced by: [NAME] of Produced by: [NAME], 4. Not interfere with [NAME] in the execution of their rights for wines labelled, Produced by: [NAME] of produced by [NAME], 5. To make immediate compensation payment for any wine sold by [COMPANY]. Please be advised if these demands are not satisfied within 5 days, every legal recourse will be undertaken to enforce the rights stated here-in. [sic]"

1. One strand of [NAME]'s submissions was that the effect of that letter was that he and [NAME] owned the wine which had been wrongly sold by the [NAME]. [NAME] told this Court that the letter had not been tendered at first instance (so far as I can see, that seems to be correct).

2. This claim was addressed by the [NAME] judge in some detail at [110]-[117]. "[NAME] are the sole directors and shareholders of [NAME] and until [NAME]'s appointment, its controlling mind. In his first affidavit [NAME] did not suggest that [NAME] did not own the wine produced with grapes they had grown, or that it had ever failed to make any payments due to them for the grapes, with the result that the wine belonged to [him] and [NAME] not [NAME]. Had that been the case, it could only have been the result of steps which [NAME] had taken, about which [NAME] gave no evidence. This was a claim only belatedly raised in [NAME]'s third affidavit. To establish this claim [NAME] relied on a grape sale agreement he, [NAME] and [NAME] had entered, after an earlier agreement with [NAME] had not been honoured. That agreement was certainly ambiguous, [NAME] disputing that it provided for what [NAME] claimed. Even accepting that it provided for [NAME] to sell all of the grapes which they produced each year to [NAME], that it had always failed to pay them for grapes they had supplied, with the result that they owned all wine produced, was not established. That was contrary to what was pleaded in the amended defence on which [NAME] and [NAME] had relied before Davies J. It was also inconsistent with other evidence and aspects of the case [NAME] pressed. At [15] of his judgment, Davies J noted that amongst the orders then sought were: 'Judgement that the [NAME] did not act in good faith concerning the assets of [COMPANY] and should: a. Desist in any action to seize the equipment belonging to [NAME], and; b. Review the sales' records of [COMPANY] to determine the true market value of the wine inventory/ seized.' [NAME] rather than [NAME], truly owned the wine as they later claimed, this would not have been pleaded. Such ownership would have been reflected in documents. But that was not what the documents in evidence establish. [NAME]' 2018 annual report, for example, was annexed to [NAME]'s affidavit. That was long before he became the [NAME], at a time when [NAME] were entirely in control. Its trading and profit and loss statement for that year reflected that [NAME] then had opening stock worth $908,448, closing stock of $749,728, wine sales of $323,776 and a loss before income tax of $238,248, with differing figures for the preceding year, when it also suffered a loss. This was inconsistent with [NAME]'s evidence that it was he and [NAME] who owned all the wine ever produced, rather than [NAME]. It is possible that other documents, financial records or tax returns for example, might reflect that it was [NAME] who made income on the wine which they owned and sold before the [NAME] was appointed. But if they exist, they were not tendered. In his submissions [NAME] referred to having had accounting advice but no evidence was called from the accountant, or an accounting expert, who could have explained what the records which were kept and the income tax returns which were filed revealed about how the business was operated and who, in the result, owned the wine. I am thus satisfied that [NAME] and [NAME]'s claimed ownership of the wine was not established."

1. In this Court, [NAME] said that her Honour's reasoning was wrong. He relied upon the agreement between [NAME] and the company they owned and controlled without addressing the matters upon which her Honour relied, all of which pointed to the company owning, and selling, and accounting for the sale, of the wine inventory. In part, they sought to rely upon fresh evidence that the [NAME] "was active and filed income statements to the ATO" (to be clear, no taxation returns for Mr or [NAME], or their [NAME], or their company, or the trust which [NAME] mentioned at one stage ([NAME], p 43(8)) were tendered). In seeking to address the difficulty that the document relied upon was more than a decade old, they submitted: "though dated 2008, this is an annual harvest contract that does not expire if waived at any time as the transaction agreement would be by statutory time limits, as the terms and conditions restated as the same as the 11 year deed of assignment of the Growers Agreement attached as part of this agreement".

2. The ownership of the wine inventory is a question of fact. All of the documents, save for the two upon which [NAME] relies, point to the wines being owned by the company. Further, [NAME]'s case is that the [NAME] immediately seized the wine inventory, and that [NAME] thereupon purchased it at very low prices and then sold it at an average price of $21.50 per bottle. If so, it preceded the letter upon which [NAME] relies, which is dated a few weeks before the third day of the trial. No error in her Honour's finding of fact, which accords with most of the documents and the inherent probabilities, has been made out.

3. The second aspect of this complaint is the claim that the sale was at a substantial undervalue. [NAME] submitted at trial and maintains the submission in this Court that, by reference to the average price per bottle sold over the previous six months, the [NAME]'s sale was at an undervalue of $552,061. Insofar as this is a complaint against the conduct of the [NAME], it fails because the [NAME] was not joined.

4. Moreover, her Honour found at [204] that [NAME] had not established a basis for this claim. Her Honour relied on business records which were contrary to the wine being owned personally by [NAME] (including tax invoices under the name [NAME] which used the ABN of [NAME]). Her Honour did not deal with the letter of demand, which purported to revest the wine in [NAME], but that seems to be because it had not been tendered at trial. Ground 9 must be rejected.

Mortgage debt calculation (ground 10)

1. As noted at the outset, one aspect of this ground was established prior to the hearing. [NAME] correctly contended that the judgment entered against the defendants disregarded the proceeds of sale in excess of $2,000,000 which were the subject of comment by Kirk JA and correction by the [NAME] judge in her most recent judgment.

2. In oral submissions, [NAME] complained that [NAME] had bought out his previous mortgagee, the Commonwealth Bank of Australia and claimed that the bank would never have treated him in the way that [NAME] had. 3. [NAME] then turned to the calculation of indebtedness: "APPELLANT: [redacted] So our contention is – and there's another – I go into this in a little greater detail in the - okay, at the moment I can't find it, but that's - that's the crux of appeal point 9 that the debt - the mortgage says that the debt is to be calculated in Australian - calculated and paid in Canadian dollars. It doesn't say calculated in Canadian dollars. It just said the mortgage debt, the interest is to be calculated and paid in Canadian dollars, and since it was an Australian dollar loan and paid out with no - no, you know, reference or consideration to us or even informing us, I don't see why suddenly we have to owe another $180,000 because her Honour ruled that it's a Canadian debt. It was an Australian debt when we took it out with the Commonwealth Bank of Australia, and again I hate to plug, you know, public interest, but it would literally mean any company could come into Australia, buy a debt from a bank, you know, in Australian dollars, and it wouldn't matter if they were US, UK or whatever, if they were speculating on currency and they - and the currency was favourable, the exchange rate, the debt to the person they bought the mortgage off would increase. So that is - that's that point. We believe BASTEN AJA: That doesn't matter. It could go either way surely. The question is whether it was a debt which should have been ordered to be repayable in Canadian dollars. APPELLANT: [redacted]

1. It is true that in a general sense [NAME] "bought out" the existing loan denominated in Australian dollars between [NAME] and the Commonwealth Bank. However, it is quite plain from the documents that that was not an assignment of [NAME]'s existing debt, but a new agreement between [NAME] and [NAME]. A "Discharge Settlement Payout Figure Confirmation" on the bank's letterhead recorded receipt of $1,241,575.03 on 1 November 2016, and a deed of variation between [NAME] and [NAME] of the same day recorded "Tranche 2" of "AUD$1,241,575.03 (CAD$1,260,198.63)" as a new component of the principal sum.

Accordingly, the currency in which the principal and interest which [NAME] must repay is a question of construction of their agreement with [NAME].

2. The original deed of loan, dated 18 January 2016, provided that the Principal sum was $794,250.00 (CAD 750,000.00) at the drawdown date, the drawdown date being 26 August 2015 some six months prior. By a deed of variation, the principal sum was increased to "$1,057,555.00 (CAD1,000,000.00)". A second deed of variation increased the total principal sum to "$2,314,093.43 (CAD 2,342,756.00)".

3. Clause 1 of the Deed was headed "Definitions and Interpretations" and in cl 1(a)(i) stated, "the following expressions wherever occurring in this Deed shall, unless the context otherwise requires, mean: …". Clause 1(b)(v) was headed "Interpretation" and stated, relevantly, "in the interpretation of this Deed … [the] reference to an amount of money is a reference to the amount in the lawful currency of the Commonwealth of Australia".

4. Clause 5(c) of the second deed of variation provides: "Notwithstanding anything to the contrary, the principal sum will be repayable in Canadian funds": cl 5(c). It was this deed which was entered into on the day [NAME] discharged the existing indebtedness to the Commonwealth Bank of Australia, and which incorporated new "Tranche 2" in the amount of that indebtedness, expressing the amount in both Australian and Canadian dollars.

5. The [NAME] judge found at [88]-[89] that the effect of cl 5(c) was that the principal was to be repaid in Canadian dollars, but that cl 5(c) did not deal with interest, to which cl 1(b)(v) applied, with the effect that under the original deed and the first and second deeds of variation, the obligation to repay interest was in Australian dollars: at [87] and [90]. 6. [NAME] contends that the entirety of the judgment should be calculated in Australian dollars, notwithstanding cl 5(c). He says that [NAME] bought out the mortgage from the Commonwealth Bank of Australia, and that mortgage secured an Australian dollar amount. He also says that [NAME] lent money in Australia to be spent in Australian dollars.

7. Clause 1(b)(v) is a rule of interpretation which falls to be read together with the substantive provisions in the Deed and may be displaced where the context requires. That is to say, the interpretation provisions in cl 1(b) are subject to the same qualification that they are applicable "unless the context otherwise requires" as the definition provisions in cl 1(a) are, expressly. It is never necessary, in order to displace the definition or interpretation provision, explicitly to say "unless the context otherwise requires". That should be regarded as settled principle, as has been repeatedly held: Buresti v Beveridge (1998) 88 FCR 399 at 401; Transport Accident Commission v Treloar [1992] 1 VR 447 at 449; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [40]; Melrose Farm Pty Ltd v Milward [2008] WASCA 175 at [7] and [51]. Those decisions are on statutes, but the same principle applies to contracts. In Halford v Price (1960) 105 CLR 23; [1960] HCA 38, Fullagar J said at 33: "Neither in the case of a stature nor in the case of a contract or any other instrument is there any rule of law or of construction which requires us to apply a definition where to do so would be at variance with a context or with a general intent to be gathered from the whole of the instrument."

1. The same points have been made in relation to contracts in this Court in [COMPANY] (as custodian for [COMPANY] as Trustee for Crivelli) v IOOF Investment Management Ltd [2013] NSWCA 231; 304 ALR 436 at [86] and Segelov v Ernst & Young Services Pty Ltd (2015) 89 NSWLR 431; [2015] NSWCA 156 at [101]. It appears that her Honour was not favoured with submissions on that point.

2. The second variation to the Deed of loan included cl 5(c), which provided "notwithstanding anything to the contrary, the principal sum will be repayable in Canadian funds". It might be thought, even without such a provision, that where the original principal was a precise $750,000 in Canadian dollars, increased to precisely $1,000,000, again in Canadian dollars, advanced by a [NAME], that that was always the intention. If it were not so, then the [NAME] suffered the risk that he would not be fully repaid in the event that at the time of the repayment the Canadian dollar had appreciated as against the Australian dollar. That is to say, an obligation to repay the principal in Canadian dollars, which plainly enough was the currency by reference to which the original loan and the first variation were calculated – for how else were the precise amounts in round figures determined? – would be to cause the borrower to bear the entirety of the risk (as well as potential gain) from currency fluctuations. But those points may be put to one side, in light of the parties' express provision in cl 5(c).

3. True it is that "Tranche 2" reflected the discharge of an existing indebtedness denominated in Australian dollars. However, the parties executed a deed at the same time, stating that indebtedness in both Australian and Canadian dollars, and including cl 5(c).

4. I cannot accept [NAME]'s submission that the principal to be repaid should be calculated in Australian dollars (which in substance is a submission that [NAME], rather than [NAME], should bear the burden of the appreciating Canadian dollar).

5. During the hearing there were exchanges with counsel for [NAME] concerning the difficulties in interest being calculated in Australian dollars and principal in Canadian dollars. That is to my mind a decidedly unusual intention to impute to the parties. It carries the result that both parties share the risk associated with currency rate fluctuations. Further, it presents difficulties of a practical nature which were mentioned during the hearing. If interest is to be calculated in Australian dollars on a Canadian dollar indebtedness, when is the currency conversion to be made and how is the rate to be determined? It is not entirely straightforward to identify an exchange rate – it is apt to change from day to day and indeed during the day. There are also potential difficulties in calculating post-judgment interest pursuant to s 101 of the Civil Procedure Act 2005 (NSW). From the perspective of the lender, [NAME] is presumably seeking to achieve a stated rate of return on his loan. There is nothing to suggest that he wished to subject any part of that rate of return to the uncertainties of an appreciation in the value of the Canadian dollar against the Australian dollar. There is much to be said in favour of the proposition that the intention to be implied to him is to obtain the return of his CAD750,000 plus interest on that sum in his hands (in Canadian dollars) at the agreed rate.

6. But these difficulties go nowhere. [NAME]'s complaint was confined to the Canadian dollar component of the judgment. That complaint is not made out. It is contrary to cl 5(c), and it is contrary to the other considerations mentioned above. I should note to be clear that save in relation to the currency in which the debt was to be repaid, the judgment debt was not disputed by the time the appeal came to be heard. In particular, no challenge was made to the calculation of interest and indeed it is far from clear to me that it is possible, on the materials made available in the appeal books, to verify the calculations.

The claim for wages (ground 11) 1. [NAME] appeal from the rejection by the [NAME] judge of their claim for wages in the amount of $132,937. This is based upon work done by them, including in conducting [NAME] sales. At trial, [NAME] said that: "[NAME] used [NAME] and me to manage and continue the [NAME] to generate income to pay operational expenses, while leading us to believe that [NAME] and I would be compensated. He instructed me to continue so in his email of 1 October 2020 – missing from the Court Book (Annexure CC_M) but herein submitted Addendum P-164."

1. The [NAME] judge addressed the claim for unpaid wages at [258]-[269], holding that the performance of work did not by itself give rise to an employment relationship, that [NAME] did not point to any written contract, or words spoken by [NAME] or [NAME] so as to give rise to a contract of employment. Her Honour concluded at [268]-[269]: "Even accepting that they did continue performing work which they had previously performed as working directors of [NAME] after [NAME]'s appointment, that did not result in employment for which they were entitled to be paid wages. That was clearly in their own interests, given their ongoing failure to repay the balance of what they had borrowed from [NAME] and to pay interest which they owed, while they continued living on the property. But that does not entitle them to an order that [NAME] pay them their claimed wages." 1. [NAME] relied on appeal, as he had relied at first instance, on material found on a [NAME] website addressing the ways in which an employment relationship could be found to exist.

2. It is unclear to me whether the email on which [NAME] relies was in evidence. However, it is reproduced in his submissions in reply (p 21 of 34). The subject matter is "Statement from [COMPANY] for [COMPANY]". It contains an email from [NAME] which in its entirety states, "[NAME], We are happy to carry on using revenue to pay ongoing expenses as we have been, but it is up to you. [NAME]", to which there is the following reply: "Thanks. Please use revenue to pay expenses". That exchange did not without more give rise to a relationship of employment between [NAME] and [NAME]. The context (from the subject line) appears to be an invoice from a third party. The timing is some six months after a [NAME] was appointed to [NAME], and six months after the [NAME] sales had commenced. No error has been established in the reasoning of the [NAME] judge that [NAME] had not established a contract of employment.

Ownership of equipment (ground 12) 1. [NAME]'s complaint is that the [NAME] took the equipment such as tractors and sprayers which were not owned by the company. His submissions asked, rhetorically, "What does a [NAME] need tractors and sprayers for?" This claim failed on the basis of [NAME]'s failure to establish that the plant and equipment were owned by him and his wife personally. As mentioned above, the [NAME] balance sheet did not assist him. [NAME] did not return to the document which he mentioned when this was pointed out to him. Ground 12 is rejected.

Ownership of domain name and intellectual property (ground 13)

1. A great deal of attention was given during the oral submissions to [NAME]'s claim that he personally was the owner of the domain names "[NAME]" and "[NAME]" and various cognate names. Indeed, the amended statement of cross-claim also asserted that [NAME] owned the trademark "Ascella Wine" ([9]) and it seems that a trademark search was tendered at trial. This might matter, because insofar as the appeal amounted to a matter arising under the Trade Marks Act 1995 (Cth), it should have been commenced and heard and determined in the Federal Court of Australia: Jurisdiction of Courts (Cross‑vesting) Act 1987 (NSW), s 7(4). However, no mention whatsoever of an entitlement under the Trade Marks Act was made in oral or written submissions and, even if there were some point arising, it is de minimis compared to the other matters and only was the subject of submissions towards the conclusion of the appeal. If I were wrong about that and there was a matter arising under the Trade Marks Act, then this is a case where the interests of justice require that this Court, having heard the entirety of the appeal, decline to transfer the proceeding, a course which is authorised by s 7(6).

2. There was no evidence to which the Court was directed as to the value of the domains. The evidence as to their ownership was equivocal. [NAME] relied upon receipts in the amount of $27.50 which he said that he had paid for personally. [NAME] relied upon print outs from "Domain Name Lookup", a page operated by [NAME], which suggested that the registrant was [NAME], and the "registrant contact name" was [NAME]. The difficulty faced by [NAME] is that for reasons not explained in the evidence, he and his wife have chosen in part to conduct their affairs through a [NAME], in part through a company of which they are sole directors and shareholders, and in part (so the Court was told) using a trust. The two possibilities on the face of the documents are that (a) [NAME] was entitled to use the domain name and paid for them personally, and granted a licence to the company or (b) the company was directly entitled to use the domain names. The company's balance sheet as at 30 June 2018 identifies "Patents and Trademarks" as an asset of $1401, and there is nothing to which [NAME] has referred which leads me to conclude that the [NAME] judge erred in finding that the company owned the intellectual property which is the subject of this ground.

[NAME] (ground 14)

1. This is in substance a complaint about the sale price realised by the [NAME]. It extends to [NAME]'s evidence that he came close to negotiating a sale at around $5,000,000 in 2019. It includes his claims of mismanagement by the [NAME], leading to a lower sale price, and the stripping by the [NAME] of assets of the business. Some of those claims have been addressed above.

2. This ground is not made out, substantially for reasons which have already been given. [NAME] did not join [NAME]. In any event, while [NAME] may have come close to negotiating a higher sale price in 2019, including to potential Chinese buyers, the pandemic obviously affected the market. It seems obvious (although there was no evidence of this) that Chinese purchasers of Australian vineyards would also be deterred by Chinese sanctions upon Australian wine imports, for at least part of the attraction of such a vineyard to a Chinese purchaser might be the ability to sell its produce in China. But ultimately there was no expert evidence adduced at trial which disputed the valuations of $2.75m and $2.35m, which would have made it difficult for [NAME] to succeed in a claim that the sale effected by [NAME] was in breach of duty, even had the [NAME] been joined.

[NAME] (ground 15)

1. This ground concerns wines said to have been held by [NAME] personally on behalf of [NAME], the principal of [NAME]. [NAME] complains that these wines had been sold at an average price of $21.50 per bottle, such that the inventory wrongfully seized by the [NAME] was worth $125,840. This was not addressed by the [NAME] judge. 2. [NAME] submitted in paragraph 71 of his submissions filed last year that this ground "does not relate to a claim pressed at the final hearing" and that "[NAME] was not a party to the [NAME] proceedings and is not a party to the appeal". 3. [NAME] supplied a 34-page response, responding to most of [NAME]'s submissions, but with no response to paragraph 71. The response referred to an email chain on 7 June 2021 which [NAME] regards as acknowledgement of [NAME]'s ownership of the wines. The email in its entirety is: "[NAME], I may have made a memory mistake. I have asked [NAME] for confirmation but I think we left the coolbah wine at ROV, have u checked with them?" to which [NAME] replied: "I moved them to First Creek" and to which [NAME] responded "Ok. I will send msg to [NAME] that they are yours, how did you identify them". That exchange falls well short of acknowledging the ownership by [NAME] of $125,840 of wines. 4. [NAME] said "my point is that we had an agreement between the parties that the judge overruled" ([NAME], p 44(20)). He also referred to an earlier email dated 2 February 2021 in which he asked the Chief Operating Officer of [NAME] whether he had capacity to store 15-20 pallets immediately and a further 30 by month end, saying "These are not [NAME], but are owned by the Principal of Coolabah/[NAME] who has assigned management of the wines to me".

5. This was addressed at trial by reference to paragraphs 23-25 of [NAME]'s affidavit as follows ([NAME], p 187): "At para 23, it states, 'Those Golden Una wines and Coolabah wines were placed in my personal care by the owner of Coolabah, [NAME], and reaffirmed as such by', the email that's referred to there. Paragraph 24, 'We've been selling those Golden Una wines through our cellar wines website.' Then it states, in 25, 'When [NAME] attempted to seize [NAME]'s wines with [NAME]'s support, we placed legal demands and title evidence upon [NAME] who released the wines and we are then shipped to warehouse in the Hunter Valley owned by First Creek.' It appears that these wines that were improperly sold or seized by [NAME] have been returned to [NAME] and are now held at a warehouse in the Hunter Valley owned by [NAME]. The evidence [is] wholly unsatisfactory but certainly does not support the contention that [NAME] has improperly seized wines but even if he did, the evidence suggests or indicates that they obtained the return of the wines and therefore haven't suffered any loss or damage by reason of the alleged improper seizure."

1. Paragraph 26 of [NAME]'s affidavit was rejected, but in the course of explaining its relevance, [NAME] said the following: "FIRST DEFENDANT: [redacted] HER HONOUR: [NAME]-- FIRST DEFENDANT: [redacted] HER HONOUR: You are not answering my question. You are telling me a whole lot of information which is not in this affidavit. In para 26, you say that, "[NAME] has mounted another attack to seize wines." If not ruled upon in this Court, you're going to commence litigation against [NAME] and someone else as you did against [NAME]. FIRST DEFENDANT: [redacted] HER HONOUR: A statement of intention as to what you might do if something does or doesn't happen in these proceedings is not evidence that's relevant to anything that I've got to decide. I don't propose to receive that."

1. There seems to be no dispute that this point was not run at trial. This ground is not made out.

Orders 1. For those reasons the appeal should be dismissed.

2. Ordinarily costs would follow the event, and the fact that it appears that [NAME] have no assets to satisfy the order would not stand in the way of its being made. However, it was appropriate for this appeal to have been commenced, by reason of the $2,000,000 overstatement in the judgment, which, a year later, was corrected on [NAME]'s application, and occupied no significant time at the hearing. In those circumstances, I propose that [NAME] pay 80% of the costs of [NAME].

3. BASTEN AJA: I agree with Leeming JA.

********** 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: 08 March 2023