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TMO:CAT D4
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
NICHOLAS J
FOURTH DAY: THURSDAY 1 JULY 2010
2006/260312 AMANDA DUNCANSTRELEC AND ORS v THOMAS RICHARD TATE AND ORS
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HIS HONOUR: Do you wish to continue with your submissions?
FIRST PLAINTIFF: Yes, your Honour, and I'm going to try and make it as quick as I possibly can. If I could, your Honour, just ask you before I is my verbal submission that I am making now going to be enough? Do I now have to followup with writing?
HIS HONOUR: That's a matter for you.
FIRST PLAINTIFF: I won't be, your Honour, I will be relying on my verbal submission I think, rather than waste any more time with it.
HIS HONOUR: It is a matter for you.
FIRST PLAINTIFF: Thank you. Your Honour, I believe we need to look at the consistent pattern of behaviour throughout the whole process. I have always been told you have to follow and stick to the evidence, and rightly so. To me the evidence is to prove that there is a breach of contract.
Now there is a lot of evidence here that has been put up in a verbal form. Obviously also evidence that has been put up in a written form. But to my way of seeing things, the crucial evidence in this case begins with the checklist of November the 14th, which is exhibit 77, and the duties that were outlined in that checklist. The email from myself to Tate dated 28 February, exhibit 258, "Freedom to chose", and I won't go back over it, your Honour
HIS HONOUR: This is page 258, was it?
FIRST PLAINTIFF: Page 258 titled, "Freedom to chose." The fact that at no time was there any written or verbal repudiation of that agreement by MrTate. He says there was, but at no stage did he commit himself to writing to say there is no go, there is no agreement anymore. There is a lot of verbal evidence which is a "he said, she said", and trying to extract who is telling the truth. Some people perform better under cross, and others don't. Your crossexamination can destroy you. If it gets to the stage where it is line ball and the judge has to decide, where there is evidence to back up in a written form, it makes that decision well, at least you have got something there that
.01/07/10 263 (FIRST PLAINTIFF)
TMO:CAT D4
you can refer to, rather than based on a person's personality, their attitude, their state of mind at the time of examination.
HIS HONOUR: You need to, I don't mean repeating what you put yesterday, but keep in mind if there are documents that you rely upon, then it is terribly important and indeed particular paragraphs of these affidavits that you rely upon, it is terribly important that you identify them for me.
FIRST PLAINTIFF: Thank you, your Honour. If you recall in MrTate's affidavit under pleadings and affidavits, 758 paragraph 67 and I think we went over this, so page 758 paragraph 57.
HIS HONOUR: I have got page 758.
FIRST PLAINTIFF: 758, paragraph 67. I hope I'm on the right one, your Honour.
HIS HONOUR: It is 25 July 2006.
FIRST PLAINTIFF: Yes. I caused the third defendant to repay the sum of whatever. I also refunded the one instalment of well, you can read that, your Honour.
HIS HONOUR: Yes, I've read that.
FIRST PLAINTIFF: You are well aware of what it says. Where it clearly says that contrary to evidence under cross, that there was interest, there was a payment made. MrTate says it was a loan, we always said it was a deposit for our 50 per cent share. That actually supports I'm sorry, your Honour. That conflicts with what White J said
HIS HONOUR: Don't worry about what WhiteJ said.
FIRST PLAINTIFF: I'm sorry.
HIS HONOUR: It is a case in front of me, and the evidence in front of me.
FIRST PLAINTIFF: This is by way of exhibit, 676, paragraph 12.
HIS HONOUR: Sorry, is this the same volume?
FIRST PLAINTIFF: No.
HIS HONOUR: What page?
FIRST PLAINTIFF: 676, it would be under exhibits.
HIS HONOUR: That's WhiteJ's judgment?
FIRST PLAINTIFF: That's correct, in paragraph 12.
HIS HONOUR: Yes, I know.
FIRST PLAINTIFF: I did refer to it in cross and pointed it out to MrTate, and he agreed that
HIS HONOUR: What do you say that he agreed with?
FIRST PLAINTIFF: That he said that
HIS HONOUR: No, hang on. You are dealing with the material put before me, as opposed to WhiteJ's judgment in the case before him is not evidence of what actually happened before me. You need to go to the material that you have got some crossexamination or some answers, you need to take me to that, the material before me.
FIRST PLAINTIFF: All right, your Honour. In the material before you, and I don't have transcripts, I tried to get transcripts, but in the cross MrTate admitted that he returned the cheques, not that David had asked for them, which was what he had originally claimed, that David had asked him to return the cheques.
HIS HONOUR: So you are putting that the evidence will show that he returned the cheques. I don't think there is any dispute about the fact that he returned the cheques. Do you say that David did not request him to do so, is that what you are saying?
FIRST PLAINTIFF: That's correct, your Honour. That David and myself had no knowledge that that was his intention. I think that the second crucial bit
HIS HONOUR: Have we finished with WhiteJ's judgment?
FIRST PLAINTIFF: Definitely, thank you, your Honour. If I could refer you to under the pleadings and affidavits index, page 513. The Hamilton Valley Project Planning.
HIS HONOUR: I have got 513, yes what is that?
FIRST PLAINTIFF: That is the Hamilton Valley Project Planning.
HIS HONOUR: What is the date of that, or what do you tell me about that?
FIRST PLAINTIFF: That is
HIS HONOUR: Was this the to do list that you worked out in November?
FIRST PLAINTIFF: No, this is the second list of duties, the second written I believe it is the written evidence that proves that there were duties allocated to various parties involved in the agreement.
HIS HONOUR: You will have to take me to the evidence which identifies how this document came about, and the context in which it came about. Where do I find that?
FIRST PLAINTIFF: This document was sent by MrTate's personal assistant. It was brought out under cross. Again, I'm sorry, I don't have transcripts so I can't give you the reference. The cross of MrTate where he says he has seen the document, he is aware of the document and, yes, the document would have been sent to him.
HIS HONOUR: What was the context in which it was prepared? Is there some evidence that
FIRST PLAINTIFF: This was when the deposit
HIS HONOUR: Where will I find it? Have you some material to tell me where it is?
FIRST PLAINTIFF: It is attached to MrStrelec's affidavit.
HIS HONOUR: Well I can see that, that's why I'm asking you to take me to the passage in MrStrelec's affidavit which explains it.
FIRST PLAINTIFF: I'm sorry, your Honour.
HIS HONOUR: I'm not going to dive around affidavits trying to work out where things came from. I need your assistance on that, because if you don't give it to me I might overlook something or not get the point. I have made it plain that there are thousands of pages of documents which no party has referred to, the cost of reproducing all of this must be breathtaking. I have only been referred to a very few documents by MrDubler, and you have referred me to a number and I have made it plain throughout the case that I do not propose to look at any document to which I have not been referred.
FIRST PLAINTIFF: It is the affidavit of MrDavid Strelec on 9 November.
HIS HONOUR: That appears at what page?
FIRST PLAINTIFF: 137. Sorry, your Honour, it starts at 137. On page 168 of MrStrelec's affidavit of 9/11/09
HIS HONOUR: I have page 168, what paragraph?
FIRST PLAINTIFF: Paragraph 134, where he states:
“Either during the visit by Amanda and I to Queensland in June 2006, or shortly thereafter, I received a copy of a draft deed of trust which was either handed to me.”
I'm sorry.
HIS HONOUR: The document you have shown me at page 513 is not a deed of trust, is it?
FIRST PLAINTIFF: No.
HIS HONOUR: It's this checklist.
FIRST PLAINTIFF: Sorry, it's the wrong I apologise. I'm sorry, your Honour, it is page 167, it is paragraph 132.
“Myself, Amanda, Tom and Katrina then sat down in Tom's office and drew up documents entitled "Hamilton Valley Project Planning", which set out the various stages of the development on the Dunlec and the Wamego land, and which one of us would be responsible for the various tasks, and when they should be completed."
I take you to that document now, which is on page 513. In that document it clearly states actions and when they are to be completed by. Under those actions again it states that if we go six lines up from the bottom, seven lines up,"Buy into Wamego, June 2006", which we had done. We believed by paying that deposit and the interest uptodate, documentation for Wamego, shareholders agreement Tom, documentation for Dunlec, which was for his purchase of Dunlec as we had agreed at that time, "Buy into Dunlec" etcetera, etcetera. There are other duties there, DA modifications and what have you.
So clearly in that document there was a commitment on MrTate's behalf to get the shareholders agreement to us and to follow through with his purchase of a 50 per cent share of Dunlec.
I am a bit concerned because I went over a lot of material yesterday with you in regard to valuations and size of blocks, and explaining the construction certificate as opposed to a development application.
HIS HONOUR: Yes, I did.
FIRST PLAINTIFF: I don't know if you want me to run over a brief summary of that again. I really don't have all that much more to do, apart from stating what I believe is the situation. I'm sure you will pull me up if I am wrong.
HIS HONOUR: I don't need you to go back over what you put to me yesterday.
FIRST PLAINTIFF: Exactly, I guess that's what I'm saying. I do need to recall some of that from yesterday to further on my argument.
HIS HONOUR: Well, you develop that.
FIRST PLAINTIFF: If you recall earlier in my submission when I outlined the difference between a development application which is pretty well just a plan and a construction certificate, which is a ready to go, everything done plan, detailed work, there was no dispute that I believe that there was a valuation on the Dunlec land around $900,000, and a valuation on the Wamego land around $1.1million. The in globo parcel, which was originally to be done by way of a joint venture, was $2.3million. Based on those figures and I'm not a valuation expert but it made a valuation, after a construction certificate on the in globo parcel look as if it would be, at the very least, $3million.
If I could, this goes some way to explaining why MrTate kept pushing so hard for us to continue on with the project to get it to the stage of a construction certificate for the whole project, not just for Dunlec. That's why MrTate was so determined to pursue for this construction certificate. One could say what happened finally to draw things to a head? Obviously the return of the cheques. For whatever reason, version, the return of the cheques started things happening.
HIS HONOUR: What do you mean by that?
FIRST PLAINTIFF: For the first time we started to have extremely serious concerns, particularly when we saw the letter attached to that. There was reference made to it yesterday. It would be exhibit 432. That letter appears to be missing from my exhibits.
HIS HONOUR: I have it here, page 432. I imagine you have got it somewhere?
FIRST PLAINTIFF: Yes, letter from Wamego. It would be here somewhere. That was the first time we were well and truly aware that there was serious problems. We were used to Tom changing the conditions for want of a better term of what would happen and how it would happen, but to return the cheques was something. So there was a series of phone calls between himself and David, and various versions put about those phone calls. He still left it open by saying in that,"I will have to talk to Lee and see what I'm doing."
If I go back to the construction certificate that increases the value of the land so much, he was determined to push through and finish with that, or get David to push through and finish with that. He needed that construction certificate on the Wamego land to make it very valuable.
HIS HONOUR: The first paragraph of this letter, I don't know whether you have got it in front of you, but I will read it to you, if you would care to listen.
FIRST PLAINTIFF: Yes, I am sorry.
HIS HONOUR: "I refer to our conversation regarding Lot 29, that the price has moved upward from $520,000 to $700,000. As you know, this was unexpected and I will need to investigate other options."
What is not clear to me at the moment is the evidence concerning this question of price. It is the price for him to, or for Wamego to buy Dunlec, is that right?
FIRST PLAINTIFF: That's correct.
HIS HONOUR: That had not yet been resolved, or had it? I don't understand the evidence on this point.
FIRST PLAINTIFF: Yes. It goes back to that exhibit I referred you to, the list of duties.
HIS HONOUR: That's page 513.
FIRST PLAINTIFF: When it said about Tom buying into Dunlec. We left Surfers Paradise with the agreement that Tom would pay $260,000 for his half share of Dunlec, even though our mortgage was then $390,000.