Dyamond Developments Pty Limited v Puddick

BATHURST CJ: I agree with Emmett AJA.

MACFARLAN JA: I agree with Emmett AJA.

EMMETT AJA:

Justin and John contend that the sums were paid on the basis that the sums would be invested only in a proposed initial public offering (IPO) by an IT security software company, Gravity Consulting Pty Ltd (Gravity), such that, if the proposed investment with Gravity did not proceed, the two sums would be returned. George and Dyamond, on the other hand, contend that the sums were paid to Dyamond on the basis that, pending the completion of the IPO by Gravity, the sums paid to Dyamond could be applied in other investments at the discretion of George.

Justin and John commenced proceedings in the Equity Division of the Supreme Court against Dyamond, George and Gaks Investment Holdings Pty Ltd (Gaks). Gaks is the trustee of the Gaks Investment Trust (the Trust). George and his wife are both beneficiaries of the Trust. Gaks was joined as a defendant in the proceedings in aid of a tracing order sought by John and Justin in relation to the funds received by Dyamond. In the proceedings, Justin and John sought declarations that Dyamond held an amount of up to $100,000 on trust for Justin and held an amount of $100,000 on trust for John. Alternatively, they sought declarations that George or Gaks is liable to account to each of them for an amount of $100,000.

On 18 April 2019, a judge of the Equity Division (the primary judge) published reasons for concluding that Dyamond was not entitled to use the money paid into its bank account for any purpose other than to invest the money on behalf of Justin and John in the pre-IPO by Gravity and that, once that purpose failed, Dyamond held the money on trust for Justin and John respectively. His Honour held further that, to the extent that Dyamond had applied Justin’s and John’s money for unauthorised purposes, it was obliged, as a defaulting trustee, to replenish the trust funds and is personally liable to each of Justin and John to pay him $100,000 as equitable compensation. His Honour also concluded that George was liable to Justin and John as if he were the trustee with the primary liability to honour the terms of the trust. His Honour found that, once Justin and John had transferred the funds to Dyamond in accordance with an agreement made with George, George was responsible for what was done with the money. On 24 May 2019, the primary judge made orders to the following effect:

By amended notice of appeal filed on 21 November 2019, Dyamond, George and Gaks appeal from those orders. While the notice of appeal sets out some 20 grounds, the only grounds pressed were that the primary judge erred in finding that:

Before the primary judge, several non-contentious facts were agreed between the parties as follows:

The primary judge characterised the primary issue in the proceedings as being the terms upon which Justin and John agreed with George to invest the sum of $100,000 that each of them, at the direction of George, paid into a bank account of Dyamond. Justin and John asserted that there was an express agreement that each investment was paid solely for the purpose of investing in the pre-IPO by Gravity and, accordingly, was held by Dyamond on trust to be applied only for that purpose such that, when the proposal for the public offering by Gravity failed, Dyamond became liable to repay the money to Justin and John. George, on the other hand, asserted that, while the primary purpose for which the payments were made to Dyamond was that claimed by Justin and John, each of them expressly agreed with him that, pending the money being applied to the proposed public offering by Gravity, George was authorised to cause Dyamond to invest the money in securities chosen by George for the purpose of building up the investment and making a profit.

The primary judge considered that both Justin and John gave their evidence in a direct, straightforward and candid way, found them to be credible witnesses and accepted their evidence. On the other hand, his Honour considered that the manner in which George gave his evidence was less satisfactory, and characterised George’s evidence as repeatedly responding to relatively clear questions with answers that created a strong appearance that he was trying to give himself more time in which to formulate his answers. Specifically, his Honour accepted the evidence given by Justin and John concerning their conversations with George, rather than the inconsistent evidence about those matters given by George. Nevertheless, his Honour said that his findings were based principally on an analysis of the objective evidence, rather than upon his judgment of the relative credibility of the witnesses.

The primary judge considered that the arrangement that George claimed he had made with Justin and John was commercially unsound. Thus, as he acknowledged in cross-examination, George was not licensed to provide financial or share investment advice, or to trade in shares on behalf of others. Justin and John had nothing to gain from risking their money by leaving their investment within the discretion of George. They would not have the benefit of holding title to any investment acquired with their money. While they took a risk by giving their money to George for investment in the proposed Gravity IPO, that was said to be a special deal with a limited number of investors and was promoted as having exceptional potential returns. His Honour considered that there is no reason to think that Justin and John would have accepted such a risk if their money was to be used in acquiring existing listed shares whose prices were volatile and that it was improbable that Justin and John would have agreed to the arrangement asserted by George.

George asserted that he said “we can try to increase the pool of funds and try and strengthen our position in the pre-IPO offering”. However, as the primary judge said, there was no certainty that any discretionary trading by George with the funds provided by John and Justin would generate any profit. The investments selected by George could just as easily have lost money, with the result that, if the pre-IPO had proceeded, Justin and John would not have had enough money to secure their investment in the pre-IPO that they intended to make. Further, as his Honour observed, the tenor of the arrangement claimed by George was that he would, at his discretion, trade “…on any upcoming potential opportunities”, thereby suggesting future transactions. In fact, on 30 January 2018, the $100,000 provided by Justin was applied in the payment of the purchase price for 6,350,000 shares in Zyber that Dyamond had already contracted to buy, on 22 January 2018. Thus, George’s actions themselves belied any arrangement to take advantage of future opportunities.

The primary judge found that, as between and Justin and John, on the one hand, and Dyamond on the other, Dyamond was not entitled to use the money paid into its bank account for any purpose other than to invest it in the pre-IPO on behalf Justin and John. The moment that that proposal failed, Dyamond held the money on trust for Justin and John respectively. His Honour held that it was clearly implied that Dyamond would retain amounts in its bank account equal to or greater than the amounts paid by each of Justin and John, so that those amounts would remain whole, in order to enable the agreed investments to be made in the pre-IPO.

Having reached that conclusion, the primary judge made orders directing judgment in favour of John and Justin as indicated above. His Honour made other orders that are not presently relevant for the purposes of the appeal. Before dealing with the arguments advanced on behalf of George and Dyamond, it is desirable to set out with the relevant communications between Justin and John, on the one hand, and George on the other, since the appeal is concerned, essentially, with whether the primary judge erred in making the findings outlined above.

As is customary in proceedings of this nature, evidence-in-chief was given by affidavit, a method that is less than satisfactory in circumstances where there is a dispute as to the terms of relevant conversations. The task of a trial judge in attempting to decide between competing versions of conversations is much harder when the judge is deprived of the opportunity of hearing each witness give his or her evidence-in-chief viva voce rather than in writing with the assistance of lawyers, no matter how careful the lawyer may be in endeavouring to record the true recollection of a witness.

In his affidavit of 14 June 2018, Justin said that the affidavit was made from his own knowledge and by looking at records and documents in his possession. He said that where he recalled specific dates and times of telephone conversations, he did so by reference to “WhatsApp” records. WhatsApp is an iPhone and android phone application that uses the internet to send messages, images, audio and video.

Justin said that, on 11 September 2017, George contacted him by way of private message over an online investment discussion board in respect of his holding of shares in Zyber and, on 18 September 2017, telephoned him in relation to the future direction of Zyber. On 27 September 2017, Justin participated in a telephone discussion with George and Mr Geoff Gander, the new chairman of Zyber. The discussion concerned Zyber’s direction and possible investment that Zyber was exploring in the cyber security field. Justin had further discussions with George and Mr Gander in November 2017 and January 2018.

In particular, on 25 January 2018 George spoke to Justin about Gravity. George said he was looking to put together “a pre-IPO deal” for Gravity and was looking for private investments in an amount of about $1 million. He said that the minimum investment was to be $100,000 from about five to eight individuals. Justin’s evidence was that George said:

In his affidavit, Justin said that, on 29 January 2018, George telephoned him from Perth saying that he was with Mr Bill Otis, a close friend of George. George said words to the following effect:

In his affidavit sworn on 20 September 2018, George gave the following version of that conversation:

In cross-examination, Justin was asked whether there was any discussion on 29 January 2018 about when the investment “in the IPO” was actually going to be made. He answered that George was meeting the board in late January so it was going to happen in the weeks coming after that. When asked whether, in that conversation, George told him that it would take a couple of months before the money was actually invested in the IPO, he responded “until the IPO was completed, yes”. When asked whether it was his understanding that the investment would have to be made when the IPO was completed, he disagreed and said that that was when they would be issued shares in Gravity. When asked whether it was his understanding at the time that the shares would be paid for when they were issued, he responded that it was his understanding that “we were paying [for] an IPO which never happened”.

According to Justin, he had a further telephone conversation with George on 11 February 2018 to the following effect:

Justin said that at about that time he spoke to John, who said “I have had a look at this and I would like to invest as well”. On 13 February 2018, Justin sent a text message to George saying “my dad is in”.

In his affidavit of 9 July 2018, John said that, following his conversation with Justin, he telephoned George and had a conversation to following effect:

George said in his affidavit that he had a conversation with John in words to the following effect:

John agreed in cross-examination that it was his understanding, on 14 February 2018, that there would be a maximum of 48 hours between giving the money to George and making of the actual investment in the IPO. He agreed that George said that he needed the money in the account because the deal would be going through within the next 24 to 48 hours. John also agreed in cross-examination that he did not ask George how many shares in Gravity he would be getting for $100,000. John also said in cross-examination that he telephoned George a week after his initial conversation and asked for his money back. He said that George told him that he would get money back into his account at the end of the following week.

On 14 February 2018, Zyber announced to the Australian Stock Exchange that its shares were on hold pending an investment in a privately held company. On 21 February 2018, George was appointed as a director of Zyber.

George said in his affidavit that, on 4 March 2018, he had a telephone conversation with Justin to the following effect:

On 8 March 2018, Justin sent a text message to George saying:

George said that he had a further telephone conversation with Justin on 13 March 2018 to the following effect:

In his affidavit of 14 June 2018, Justin said that he had a telephone conversation with George on 13 March 2018 to the following effect:

On 13 March 2018, John and Justin had a telephone conversation to the following effect:

On 17 March 2018, Justin, George and Mr Otis met at a coffee shop in Waverley, New South Wales. Because it was noisy and they were about to discuss “the Gravity deal and Zyber” they moved to a nearby pub where they had lengthy discussions for about three hours as to the dealings with Zyber and why the “Gravity deal” did not go ahead. George said that the discussion included words to the following effect:

In cross-examination, George agreed that he had used the money provided by Justin and John to buy Zyber shares. The first hundred went to Zyber shares and the second hundred went in a mixture of shares that were mostly PMY shares. He said the first $100,000 was Zyber and the second $100,000 was a mixture of Zyber and PMY shares and “some other bits and pieces”. He agreed that the shares that he bought with the money were now held by Dyamond.

The contentions advanced on behalf of the appellants were founded firmly on the observation made by the primary judge that, while his Honour preferred the evidence of Justin and John, his findings were based principally on an analysis of the objective evidence rather than upon his judgment of the relative credibility of the witnesses. The appellants contended that his Honour did not consider all of the objective evidence.

The appellants rely on the fact that, on Justin’s evidence, there was no discussion about how long it would take for the Gravity IPO to be finalised. They contend that, in the absence of a discussion as to how long it would be before the transaction was to take place, it is more probable than not that the parties assumed that the funds were going to be tied up for an extended period of time. Therefore, the appellants contend, it is more probable than not that there would be an agreement, or at least a discussion, between the parties as to what would happen to the money in that intervening period.

However, in cross-examination, Justin said that George told him that “the deal looks like it’s going ahead” and that Justin needed “to transfer the money quickly”. Justin said that George told him that it was necessary to have the money in the bank account “to show the board of Gravity that he was serious about the deal going ahead”. Further, Justin said, when asked as to any discussion about when the investment was going to be made, George said that he was meeting the board in late January “so it was going to happen in the weeks coming after that”. In those circumstances, the contention advanced on behalf of the appellants that it was more probable than not that the money was going to be tied up for an extended period of time and that there was a discussion as to what could happen to the money in the intervening period should be rejected.

Counsel for the appellants accepted in oral argument, quite properly, that certain statements alleged to have been made by George were not accurate. For example, the funds that were provided by Justin were applied in the payment of the purchase price for shares in Zyber that had already been the subject of a transaction. Counsel accepted that the difficulty from the prospective of the appellants was that the money provided by Justin was used for a transaction that had already taken place.

The appellants also placed reliance on the evidence given by Justin that, when he was told that the Gravity proposal was not going to proceed, he asked:

The appellants now contend that Justin’s answer is consistent with an expectation on his part that the monies advanced by him may have been applied in an investment other than Gravity. They complain that the primary judge did not adequately deal with that aspect. However, the appellants accepted that that contention was not put to the primary judge. Further, it was not put to Justin in cross-examination that the question he asked assumed the possibility that there the funds would not be repaid immediately because they were invested elsewhere. The contention must be rejected.

There was no error in the reasoning of the primary judge. His Honour correctly concluded that the arrangement between John and Justin, on the one hand, and George and Dyamond, on the other, was that the funds would be applied in investment in the Gravity pre-IPO when that was possible and that, when that ceased to be possible, the funds were to be repaid. The appeal must be dismissed with costs.