Circuit Finance Australia Ltd v Dunjey & Ors [2008] QDC 179

DISTRICT COURT OF QUEENSLAND CITATION: Circuit Finance Australia Ltd v Dunjey & Ors [2008] QDC 179 PARTIES: CIRCUIT FINANCE AUSTRALIA LTD (ACN 112 117 989) (plaintiff) v PAUL ANTHONY DUNJEY (1st defendant) and AUSTRALIAN FINANCE AND LEASING LIMITED (ACN 1080 524 689) (2nd defendant) and SPECIALTY VENDING 2000 AUST. PTY LTD (ACN 089 936 589) (in liquidation) (3rd Party) FILE NO/S: BD 2087 of 2006 DIVISION: Civil PROCEEDING: Claim ORIGINATING COURT: Brisbane District Court DELIVERED ON: 18 th July 2008 DELIVERED AT: Brisbane HEARING DATE: 18 th , 19th , 20th & 21st of February 2008 10th , 11th , 12th & 13 th of June 2008 JUDGE: Ryrie DCJ ORDER: 1. Judgment for the plaintiff against the 1st defendant. 2. Judgment for the 2nd defendant against the 1 st defendant. 3. The 1st defendant’s counterclaims against the plaintiff and the 2nd defendant be dismissed. 4. The 2nd defendant’s claim against the plaintiff be dismissed with no order as to costs. 5. The 1st defendant pay the plaintiff’s costs of and incidental to its’ action including any reserved costs on a standard basis as agreed or to be assessed. -- 1 of 36 -- 2 6. The 1st defendant pay the 2nd defendant costs of and incidental to its’ action including any reserved costs on a standard basis as agreed or to be assessed. 7. Each party may have liberty to apply on the question of costs within 7 days. CATCHWORDS: CLAIM – LEASE AGREEMENT – where the 1st defendant entered into certain lease arrangements with three separate finance companies in respect to 20 coffee machines in total – whether 1st defendant had defaulted under the lease agreements with the plaintiff and the 2nd defendant company respectively COUNTERCLAIM – AGENCY – AUTHORITY – Actual authority – Ostensible authority – whether any representations were made on behalf of the plaintiff or 2nd defendant company through its’ servant or agent Corporations Law (Cth), s471B Trade Practices Act 1974 (Cth), ss 51A(2); 51AC & 52 Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337, cited COUNSEL: Ms S Anderson for the plaintiff The 1st defendant appeared on his own behalf Mr D Williams for the 2nd defendant SOLICITORS: Leonard Legal for the plaintiff The 1st defendant appeared on his own behalf Galilee Solicitors for the 2nd defendant A brief introduction [2] These proceedings have arisen as a result of the 1st defendant (‘Mr Dunjey’) having entered into certain lease arrangements with three different finance companies namely the plaintiff (‘Circuit Finance’), the 2 nd defendant (‘Australian Finance’) and another company (‘Service Finance’), in respect of twenty coffee machines in total that were to be delivered to Mr Dunjey pursuant to an agreement (Exhibit 5) which he had with a 3 rd party supplier (‘Speciality Vending’). [3] Circuit Finance and Australian Finance now claim that Mr Dunjey has defaulted under their respective leasing arrangements (Exhibits 4 and 6) and as a consequence, they have suffered financial loss. Mr Dunjey however claims that Speciality Vending only ever supplied him with thirteen coffee machines which could not be specifically identified as being the machines which were the subject of any of the leasing arrangements which he had with the relevant finance companies as none of the machines had any serial numbers on them. He also says that out of the thirteen machines that were delivered to him by Speciality Vending, some of those machines were his own because he had received them as ‘bonus’ machines, five of the machines related solely to the leasing arrangement which he had with Service Finance and any -- 2 of 36 -- 3 remaining machines related to the leasing arrangement which he had with Australian Finance. In other words, Mr Dunjey claims that none of the thirteen coffee machines which he did receive from Speciality Vending were in fact the goods the subject of his leasing arrangement with Circuit Finance. Mr Dunjey also says that both Circuit Finance and Australian Finance (through either their servant or agent) verbally agreed that they would not make any payment to the 3rd party supplier for the goods, the subject of those leases, until each company was notified by Mr Dunjey that he had actually received delivery of the relevant coffee machines (ten and five coffee machines respectively). Mr Dunjey claims that even notwithstanding any verbal agreement to that effect, both Circuit Finance and Australian Finance had a positive obligation in any event to ensure that those goods, the subject of the relevant leases, had been delivered to him prior to any payment being made by those companies to the 3rd party supplier. The pleadings [4] As a consequence of Mr Dunjey’s alleged default, Circuit Finance and Australian Finance have each made a claim against Mr Dunjey for breach of contract, primarily for monies due and owing. Mr Dunjey has counterclaimed against both companies for breach of contract, negligence, misleading and deceptive conduct, unconscionable conduct, estoppel (including conversion against Circuit Finance only). On the 30th January 2008, Robin DCJ gave judgment in respect of Australian Finance’s claim in its’ favour. Mr Dunjey was however given leave to file a counterclaim against Australian Finance at that point. He was also subsequently given leave by me to file an amended defence and counterclaim against Circuit Finance on 10th June 2008. [5] A 3 rd party notice had issued at the request of Mr Dunjey against Speciality Vending in respect of these proceedings. However, on the 23rd January 2008, Speciality Vending became the subject of a winding up order issued by the Supreme Court of Queensland and as such, any proceedings pending against Speciality Vending are stayed until such time as any relevant party obtains leave to proceed from the relevant court of authority. (s.471B The Corporations Law). In that regard, Australian Finance had made a claim against Speciality Vending for negligence, breach of fiduciary duty and breach of contract, however as a consequence of Speciality Vending being the subject of a winding up order, those proceedings currently remain stayed. [6] Australian Finance had also made a claim against Circuit Finance for conversion, declaratory relief and damages however that action was sensibly resolved between the parties during the course of the trial. [7] In order that this matter may be more readily understood, a schedule has been prepared, annexed to this judgment, setting out the history of this matter. The trial finally came on for hearing before me commencing the 18th February 2008. The issues identified by the pleadings may be briefly summarised as follows: [8] Has Mr Dunjey breached any of the terms of the leases which he had with Circuit Finance and Australian Finance respectively? -- 3 of 36 -- 4 [9] Had there been a variation of the terms of those leases as a result of certain representations alleged to have been made on behalf of the respective companies through either its’ servant or agent? [10] Did Circuit Finance or Australian Finance have a positive obligation in any event to ensure that the goods, the subject of the relevant leases, had been delivered to Mr Dunjey before any payment was made by each company to the 3rd party supplier, Speciality Vending? A summary of the evidence given at hearing: Circuit Finance’s claim against Mr Dunjey [11] The plaintiff called only one witness in support of its’case, Mr Kelwyn Hough, the Chief Executive Officer of Circuit Finance. [12] Mr Hough gave evidence that his company had provided financial assistance to Mr Dunjey as a result of Mr Dunjey’s finance broker approaching his company for that purpose on behalf of Mr Dunjey. He stated that initial verbal negotiations would have been conducted between the broker and his company with the completed lease documentation ultimately being compiled and submitted by Mr Dunjey’s finance broker which had subsequently received approval. [13] Exhibit 1 was tendered on behalf of Circuit Finance. Mr Hough identified each of the documents contained in that exhibit during his evidence. Mr Hough also gave evidence that once Mr Dunjey had executed the lease on 10th November 2005, then upon the receipt of the relevant invoice from Mr Dunjey’s nominated supplier (Speciality Vending), payment would have then be made by Circuit Finance to Speciality Vending. Mr Hough gave evidence that four (4) payments were received from Mr Dunjey under its’ lease arrangement with him, those payments being made by direct debit on 11th January 2006, 13th February 2006, 14 th March 2006 and 11th April 2006. Mr Hough gave evidence that a payment had also been made on the 18th May 2006 however it was subsequently dishonoured as Mr Dunjey had stopped payment on it. Mr Hough also confirmed that after that point, action was then implemented to repossess the ten coffee machines the subject of its’ lease arrangement and those machines were then sold at auction. Mr Hough identified document ‘T’ contained in Exhibit 1 as being an electronic record of the conversations which company staff had conducted with Mr Dunjey after 11 th January 2006. Mr Hough gave evidence that the document would have contained all of the conversations which occurred after that date and that upon his search of the company file, there were no other letters received from Mr Dunjey after that date. He also advised that his search of the company file did not reveal any other lease arrangement between his company and Mr Dunjey other than the one signed by Mr Dunjey on 10 th November 2005. [14] Mr Hough was cross examined by Mr Dunjey. [15] During cross examination, Mr Hough denied that his staff members had any other conversations with Mr Dunjey other than those recorded in document ‘T’ contained in Exhibit 1. Mr Hough also denied that there was a positive obligation upon his company to ensure that Mr Dunjey had received the ten coffee machines from his nominated supplier, Speciality Vending before payment was made by it to the supplier. He stated -- 4 of 36 -- 5 that once his company had received a valid tax invoice from that supplier, Circuit Finance had then made payment to that 3 rd party. Mr Hough denied that Mr Dunjey (through his finance broker, Kane Woolmer) had, at the time of signing the lease on the 10 th November 2005, communicated to his company or its’ ‘alleged’ representative Joe Garcia that until Mr Dunjey personally advised Circuit Finance that he had physically received the ten coffee machines from Speciality Vending, Circuit Finance was not to make any payment to the 3rd party for those machines. Mr Hough gave evidence that Mr Joe Garcia of Astute Financial Services, who he agreed had initially introduced Mr Dunjey as a potential client to Circuit Finance as he was accredited with the company to do so, was not an employee or agent of Circuit Finance. Mr Hough stated that he did not know any person by the name of Mr Kane Woolmer personally. He also gave evidence that in respect of the subsequent repossession of ten coffee machines by Access Mercantile, that he had relied solely on the information which he had received from it, namely that the ten coffee machines that were subsequently repossessed by Access Mercantile on Circuit Finance’s behalf, had the same serial numbers as those which were identified in the lease arrangement with Mr Dunjey. [16] Mr Hough was then cross examined by Mr Williams, on behalf of Australian Finance. A significant portion of the cross examination that followed however related to Australian Finance’s claim against Circuit Finance which was still on foot at that point. [17] During the course of that cross examination, Mr Hough agreed that he had only relied on information which he had received from third parties, namely Speciality Vending and Access Mercantile, to confirm that the ten coffee machines, the subject of its’ lease arrangement with Mr Dunjey, had in fact been delivered to Mr Dunjey. Mr Hough agreed under cross examination that the date that his company’s representative had ‘executed’ or signed the lease arrangement with Mr Dunjey in respect of those machines was the 11th January 2006 even though Mr Dunjey had signed it on the 10 th November 2005. He also agreed that it was his understanding that his company’s obligation to observe the terms and conditions of that lease arrangement arose upon its’ commencement date, 11th January 2006. Mr Hough also agreed that it was common practice for independent finance brokers such as Astute Financial Services to forward documents on behalf of an applicant who was seeking to obtain finance from his company. [18] Mr Hough was also cross examined by Mr Williams regarding page 5 and 6 of 11 of the Lease document as between Circuit Finance and Mr Dunjey. Mr Hough gave evidence that Mr Dunjey’s signatures may have been signed on the same day (10th November 2005) but that he was not present at its execution. He gave evidence that because each of those pages followed each other sequentially, that it may well explain why Mr Dunjey signed both pages on that day. Mr Hough was also cross examined regarding when the lease arrangement between Circuit Finance and Mr Dunjey had actually been approved by his company and by whom. Mr Hough gave evidence that the lease arrangement had already been approved prior to the 12th January 2006 (by a staff member with authority namely Claudine R) and that another staff member Daniel S, also with authority, had merely accessed the file just prior to the payment being made by the company to the supplier Speciality Vending, thus why a new Lease Assessment Summary had been dated 12 th January 2006 (Exhibit 1 Tab ‘N’). [19] Mr Hough gave evidence that his company merely purchased the coffee machines on behalf of the Mr Dunjey from his nominated supplier in order that they could then be delivered directly to Mr Dunjey by Speciality Vending. Mr Hough confirmed that once -- 5 of 36 -- 6 a tax invoice was received from Speciality Vending in respect of those machines, his company then paid that invoice and it was at that point that his company obtained title to those goods. [20] Mr Hough also gave evidence that he was not aware of any correspondence which had been sent to his company from Australian Finance on the 28th June 2006 which indicated that his company had repossessed certain coffee machines to which they had no title. He also confirmed that he was not aware of any steps which his company had taken after its’ agent (Access Mercantile) had received information from Mr Dunjey on the 6th July 2006 (of which Mr Hough had no personally knowledge of) that the machines which had been repossessed were not in fact machines to which they had title. Credibility [21] My assessment of Mr Hough as a witness during the proceedings, based on my observations of him while he gave his evidence, was that he was a truthful and honest witness doing his best to recall those matters which he had direct knowledge. I had no cause whatsoever to doubt the veracity of Mr Hough’s evidence. Australian Finance’s claim against Mr Dunjey [22] In order to maintain some continuity during the course of the trial, it was agreed between all of the parties that Mr Dunjey should, during the course of his evidence in chief relating to his defence and counterclaim against Circuit Finance, also give the evidence which he said supported his counterclaim that he had pleaded against Australian Finance. Although judgment had already been earlier given in its’ favour in respect of its’ claim against Mr Dunjey, Australian Finance still called Mr Gordon Castellas, Collections Manager, who gave evidence not only in support of that claim, but also in its’ defence of Mr Dunjey’s counterclaim. [23] Mr Castellas gave evidence that he had held that position with the company for approximately 8 years. He stated that the company had originally been called ‘Victorian Finance and Leasing’ but that it had changed its’ name to Australian Finance in either September 2006 or 2007. He gave evidence that AGM Williams and Co (finance brokers) had invoiced the company for a fee as a result of its’ introduction of Mr Dunjey’s finance transaction (Exhibit 18). He also identified an invoice which his company had received from Speciality Vending dated 31st October 2005 (Exhibit 19). He confirmed that payments had been made to both of those entities, as demonstrated in the company’s domestic funds transfer document, on 15th November 2005 (Exhibit 20). [24] He recalled speaking to Mr Dunjey’s solicitor on the telephone on 24th June 2006 but stated that he had not ever spoken to Mr Dunjey or Mr Dunjey’s solicitor prior to that date. He gave evidence that during that conversation he was notified that some of the machines which were the subject of Australian Finance’s lease with Mr Dunjey were going to be repossessed by another finance company (Circuit Finance) and as a consequence of being told that, he had became quite alarmed. [25] Mr Castellas also gave evidence that the name Ross Horton did not mean anything to him, that Ross Horton was not and had never been an employee of either Victorian Finance and Leasing (as it then was) or Australian Finance. He also gave evidence that -- 6 of 36 -- 7 he wasn’t even aware that other coffee machines had been leased by Mr Dunjey with funding from other finance companies until he received the call in June 2006 and that the five coffee machines, the subject of Australian Finance’s leasing arrangements with Mr Dunjey, have never been returned to the company’s possession. [26] During cross examination by Mr Dunjey, Mr Castellas noted that a letter with his company’s letterhead on it dated 2nd November 2005 (Exhibit 22) was not on the company file which he examined in court but agreed that he had seen a similar letter on the company’s electronic file at some point. Mr Dunjey put to Mr Castellas that the letter in question was given to him by Mr Ross Horton when Mr Dunjey had gone to see Mr Horton at Australian Finance’s Brisbane office. Mr Castellas gave evidence that neither Australian Finance (or Victorian Finance and Leasing) had ever had an office in Brisbane and that the handwriting, which was said to have been Mr Ross Horton’s, was not the handwriting of anyone from his office as his company only had five employees and he knows each of their handwriting. Mr Dunjey also questioned Mr Castellas about a letter sent by Speciality Vending to Australian Finance faxed 8th November 2005 (Exhibit 23) and asked whether Mr Castellas would have been concerned regarding the placement of the machines by Speciality Vending. Mr Castellas gave evidence that he wouldn’t have been concerned as any arrangements regarding actual delivery and placement of the coffee machines at locations were matters as between Mr Dunjey and Speciality Vending. [27] During cross examination, Mr Dunjey also put to Mr Castellas that he had phoned him directly in or about early January 2006 and had told Mr Castellas that the coffee machines had not been delivered to him but that payment had still been made to Speciality Vending even though he had specifically told Mr Horton not to make any payment to the 3rd party supplier until he had received the machines. Mr Castellas denied having that conversation with Mr Dunjey and again reiterated in his evidence that the only conversation he had regarding the coffee machines was with Mr Dunjey’s solicitor in June 2006. Mr Castellas also said he would have remembered receiving a call from Mr Dunjey, had it occurred in January 2006, because Mr Dunjey was raising such a serious matter. Mr Castellas stated that he did not remember ever receiving such a call from Mr Dunjey. Mr Castellas also said that there was no correspondence noted on his company file prior to the June 2006 call taking place regarding any of the matters being put to him by Mr Dunjey. [28] In order to assist Mr Dunjey, I then asked Mr Castellas some questions, in particular to describe the relationship that existed between the finance broker, who had introduced Mr Dunjey’s business to his company. Mr Castellas said that there was no relationship as such between them, such as in the nature of any agency or the like, but rather that broker, like any other in the industry, had simply introduced business to their company in order to see if his company was prepared to fund it and if they were, they would then pay a fee to that broker for that introduction accordingly. [29] Mr Dunjey also asked Mr Castellas about a letter sent by Australian Finance dated 2 nd November 2005 (Exhibit 22) which Mr Castellas says was sent after approval for finance to Mr Dunjey had already been granted on the 31 st October 2005 and confirmed that Mr Dunjey had signed all of the lease documentation on 8th November 2005 (Exhibits 5 to 10 inclusive). Mr Castellas confirmed in his evidence that settlement took place on the 15 th November 2005. -- 7 of 36 -- 8 Credibility [30] My assessment of Mr Castellas as a witness during the proceedings, based on my observations of him while he gave his evidence, was that he was a truthful and honest witness. Accordingly, I had no cause to doubt the veracity of his evidence on any of the matters to which he testified. He gave evidence about matters which he was clearly able to given his position as Collections Manager with Australian Finance. He also had reference to Mr Dunjey’s file during his evidence in order that he could give an accurate account of the company’s file regarding any communications and documentation relating to Mr Dunjey. As such, I have no reason to reject any of his evidence in that regard. 1. Mr Dunjey’s counterclaim against Circuit Finance [31] Mr Dunjey then gave evidence in his own defence of Circuit Finance’s claim. In light of the fact that the pleadings which had been filed on his behalf (by his previous legal representatives) did not reveal any amended defence or counterclaim in answer to Circuit Finance’s amended claim against him, I assisted Mr Dunjey during the course of his evidence when this matter first came on for trial, to verbally articulate his amended defence to Circuit Finance’s amended claim. I also assisted him to articulate verbally during the course of his evidence, any counterclaim which he said he had against Circuit Finance (which was fortunately reduced to pleading subsequently). [32] Mr Dunjey gave evidence that he has signed a lease arrangement on the 10th November 2005 (Exhibit 4) in respect of certain coffee machines, however gave evidence that he did not ever receive those ten coffee machines, the subject of that lease, from the 3rd party supplier, Speciality Vending. He gave evidence that he did not believe that he had defaulted under the lease arrangement which he had with Circuit Finance (by failing to pay instalments as they became due and payable from 18th May 2006 and thereafter) because he had never received the coffee machines from Speciality Vending and therefore believed he shouldn’t have to pay for something he didn’t get. Mr Dunjey gave evidence that he held that belief because all of his financial dealings had been with Circuit Finance (or with its’ servant or agent). He also gave evidence that because he had a contract to lease those machines from Circuit Finance and not Speciality Vending, it followed that he did not have to pay Circuit Finance for machines he didn’t get. He also believed that Circuit Finance had a positive obligation in any event to ensure that the ten coffee machines were delivered to him prior to any payment being made by Circuit Finance to the 3rd party supplier. [33] He also gave evidence that he had specifically instructed the company verbally, through ‘Joe Garcia’ and ‘Belinda’, who he believed worked for Circuit Finance either as its’ agent or servant respectively, not to pay any monies whatsoever to Speciality Vending, until he had confirmed with the company personally that he had physically received the machines, the subject of the lease arrangement, from the supplier in question. Mr Dunjey told the court that his finance broker, Mr Woolmer, had communicated that fact on his behalf to Joe Garcia at the time the lease arrangement was signed by him (10 th November 2005). He also gave evidence that he had personally rung up Circuit Finance on various occasions (during the early part of 2006) to also advise them of this fact. Mr Dunjey referred to his diary (Exhibit 3) but was unable to refer to any evidence of the conversation that he said he had with a company’s employee (Belinda) sometime shortly before Christmas 2005 regarding that issue. He gave evidence however that he had told Circuit Finance many times that he -- 8 of 36 -- 9 had not received the ten coffee machines the subject of their lease arrangement during the course of 2006, yet the company did nothing about that fact and went ahead and paid the supplier regardless. He eventually told them he was going to stop payment on his last cheque in a telephone conversation with Circuit Finance on 5th May 2006. [34] Mr Dunjey gave evidence that he only ever received thirteen coffee machines from the supplier, Speciality Vending and that six of those were his as he had received them as ‘bonus’ or ‘free’ machines. He also confirmed that he had received the five machines which belonged to ‘Service Finance’, and at least two he believed that belonged to ‘Australian Finance’, even though he admitted that none of the machines he had received had any serial numbers on them. Mr Dunjey gave evidence that even though the six machines which he said belonged to him did not have any serial numbers on them, he was certain that the ten machines which the agent from Access Mercantile, (Steven Wells) ultimately repossessed on behalf of Circuit Finance, were not in fact Circuit Finances’ machines at all. Mr Dunjey gave evidence that he therefore believed that he had a counterclaim against Circuit Finance in light of the fact that they had ‘stolen’ the coffee machines when it had repossessed them, in that those ten machines had included the five ‘Service Finance’ machines and had also included either five of his own ‘bonus’ machines, or perhaps three of his own, but at least two of Australian Finance’s machines. As a consequence of that repossession, he had suffered loss in that he had lost his ability to earn income from his own machines and the other machines were he had leased from the other finance companies. [35] Mr Dunjey told the court that he had told Steven Wells, the agent from Access Mercantile, when he came that none of the thirteen machines which he had received from Speciality Vending had any serial numbers of them to identify them but that Steven Wells took them away regardless. 2. Mr Dunjey’s counterclaim against Australian Finance [36] Mr Dunjey then proceeded to give evidence in respect of the ‘counterclaim’ which had been pleaded on his behalf against Australian Finance. Mr Dunjey gave evidence that he had initially entered into verbal negotiations with Mr Dennis of Speciality Vending regarding buying some coffee machines from him in October 2005. He stated that as a consequence of those discussions he then had various conversations during late 2005 and early 2006 with a Mr Ross Horton, who he believed was an agent of Australian Finance (or Victoria Finance and Leasing as it then was). He gave evidence that during the course of those conversations, Mr Horton specifically told him that no monies would be paid by Australian Finance to Speciality Vending until Mr Dunjey confirmed that he had received actual delivery of the five machines, the subject of that lease arrangement. Mr Dunjey gave evidence that in early January 2006 he also advised Mr Gordon Castellas of Australian Finance in a telephone conversation that he had not received the machines from the supplier at that point. Mr Dunjey agreed however that he did eventually receive two of the five machines, the subject of that lease, but was still waiting for the delivery of the other three. [37] Mr Dunjey was then cross examined at length by Ms Anderson on behalf of Circuit Finance in respect of its’ claim against him. Mr Dunjey agreed that his 2006 diary (Exhibit 3) did not contain notations made by him regarding conversations which he said he had with persons who he believed were representatives of Australian Finance. Mr Dunjey agreed that his finance broker, Mr Woolmer, had initially assisted him on 17 th October 2005 with the some documentation as it related to the Circuit Finance -- 9 of 36 -- 10 lease arrangement. He admitted that he had then executed the lease arrangement on 10th November 2005 but did not agree that he was mistaken when he believed that he had in fact signed two different lease arrangements with Circuit Finance in respect of the relevant goods. He also did not agree that he had given the actual serial numbers of the 10 coffee machines, the subject of that lease, to Circuit Finance, either personally or through his finance broker, Mr Woolmer. Mr Dunjey stated he believed Speciality Vending had provided those numbers to Circuit Finance direct. He also agreed that he had signed a General Consent for Caveat on the 10th November 2005 even though he maintained that he was not interested in doing finance with Circuit Finance if he had to put a caveat on his house and that he had verbally communicated that fact to Mr Woolmer at that time. Mr Dunjey gave evidence that it was two to three weeks after that date, that he went back and signed a new lease arrangement for the 10 coffee machines which he believed was absent the requirement of a Caveat and that his belief was supported by the assessments which were done by Circuit Finance on the 31st October 2005 and 12th January 2006 respectively. (Exhibit 1 Tab ‘C’ and “N’). [38] Mr Dunjey agreed during cross examination that when he had entered into an agreement with Speciality Vending, he knew that it was Speciality Vending that would be delivering the various coffee machines to certain locations around Brisbane. He stated that in respect of the machines that were delivered by Speciality Vending, none of the keys to those machines had identification on them bar two maybe three. [39] During the course of his cross examination, Mr Dunjey continually stated that none of the machines which he received from Speciality Vending ever had any serial numbers on them. He stated he was able to give that evidence himself as he had regularly serviced the machines and had the ‘backs’ off the coffee machines and did not see any serial numbers stickers at that time. He stated he had the ‘back’ off one of the machines at least once a week. He agreed he had not kept a record of the services which he had performed on the machines or when in that regard. Mr Dunjey conceded however that when Steve Wells, the agent from Access Mercantile, had subsequently come out to inspect the machines again at a time after his initial visit, he was not present when the rear panels of the machines were removed by the Agent at that time. It was at that point that he understood that the Agent found the serial numbers on the machines. He also agreed that when the agent from Access Mercantile had initially attended on 15th May 2006, the rear panels were not removed at that stage. Mr Dunjey stated that when that agent had initially attended, he had informed him where the 13 machines were located and that he understood that those machines, when subsequently inspected at those locations, revealed the serial numbers, the subject of the lease arrangements with Circuit Finance even though he wasn’t present when that inspection took place. He disagreed however that he had also advised the agent from Access Mercantile on 26th June 2006 that he had moved two of the machines located at Brisbane Square to Slacks Creek and Bunnings Warehouse and then subsequently to his own home. Mr Dunjey gave evidence that the two machines located at Brisbane Square were only ever removed by him from Brisbane Square sometime in July 2006 because they had been smashed and had ended up ‘in parts’. He also stated that at no stage was the machine that was located at Slacks Creek ever moved from its location and was still there at the point it was repossessed. [40] Mr Dunjey agreed under cross examination that he had received two coffee machines the subject of the lease arrangement with Australian Finance but that he never received the ten machines under the lease arrangement he had with Circuit Finance. He conceded however that he had continued to make payments under the latter’s lease -- 10 of 36 -- 11 arrangement for approximately 5 months regardless before stopping any payment in respect of those same goods. [41] Mr Dunjey was then referred to the agreement which he had entered into with Speciality Vending (Exhibit 5). He agreed that the agreement did not state that he was to receive six bonus machines but said that even though it only said four, it was verbally agreed that he was to receive a further two bonus machines from Mr Dennis. [42] He also agreed under cross examination that his partner Ms Dehoon would be in a better position to answer questions regarding the servicing of the machines, their locations etc. He also agreed that he had subsequently sold a couple of his six bonus machines at auction and that they had been bought by Mr Borgo, and that those machines did not have serial numbers on them. [43] Mr Dunjey was further cross examined after the recommencement of the trial of this matter in June 2008 by Ms Anderson on behalf of Circuit Finance in view of the fact that further documents had subsequently been disclosed by Mr Dunjey which had not been made available to Circuit Finance. Ms Anderson put to Mr Dunjey that it would be right to say that he never collected the money from the various coffee and pinball machines or serviced them in view of the entries in the Receipt Book (Exhibit 16) (which revealed those entries were primarily recorded by his partner Ms Annette Dehoon). Mr Dunjey did not accept that proposition and maintained that even though he collected only the odd money he did most of the servicing of the machines. He agreed however that ‘servicing’ to him meant maintenance and repair of the machines rather than simply going to collect money, put in cups etc which he agreed is what Annette primarily did. [44] Mr Dunjey also maintained under cross examination that he believed that Speciality Vending was also going out to the sites where the machines were located and was taking monies from the machines without his knowledge. He stated that had no record of the locations where this was occurring or of the people who knew of those occurrences. [45] Mr Dunjey was also cross examined regarding his initial application for finance. He agreed that it was him who had first approached his finance broker, Mr Kane Woolmer of First Choice Home Loans, and that Mr Woolmer had then approached Mr Joe Garcia (a finance broker with Astute Finances) in order to get assistance from him on Mr Dunjey’s behalf to seek funding from Circuit Finance. He also agreed that Ms Robyn Graham took over from Mr Kane Woolmer after he went on holiday leave. He agreed that he hadn’t personally approached Mr Joe Garcia or Circuit Finance himself regarding his application for funding except on an occasion prior to December 2005 when he stated he had rung up Circuit Finance and told them that he didn’t want any money paid to Speciality Vending until he had ‘seen the machines’. He agreed however that he had no record of that conversation. [46] Mr Dunjey was also asked regarding his dealings with Ms Robyn Graham of First Choice Home Loans. He agreed that she acted on his behalf when she organised any documents that were required to be signed and submitted to Circuit Finance. He agreed that Ms Graham had sent a letter addressed to Ms Nina Hall of Circuit Finance on his behalf but couldn’t say whether he had given her the authority to say that or not (Exhibit 17). Mr Dunjey however accepted that the context of that letter meant that his agent (Ms Graham) had authorised that funding by Circuit Finance proceed on the date -- 11 of 36 -- 12 stated and that payment was then made by Circuit Finance on his behalf to Speciality Vending on 11th January 2006. [47] Mr Dunjey was then asked about pinball and coffee machines. He agreed that he had pinball machines also operating in addition to coffee machines during 2006 but denied he had received the pinball machines in lieu of any coffee machines. Mr Dunjey stated that out of the twenty machines in total that were to be financed by the three finance companies, he had received all of the five machines relating to Service Finance, only three of the five relating to Australian Finance’s lease and none relating to Circuit Finance’s lease. He stated that in addition to the eight machines he had received, a further six bonus coffee machines were received from Speciality Vending (but that he only physically received delivery of five of those) and was adamant that none of the machines which he had actually received had serial numbers on any of them. [48] Mr Dunjey was then cross examined by Mr Williams on behalf of Australian Finance. Mr Dunjey agreed under cross examination that he could not remember if he had signed the lease arrangement with Australian Finance (Exhibit 6) on the 8th November 2005 but considered that he may have in light of the other documents he had signed on the same day (Exhibits 8, 9 and 10). He was also asked about pages 5 and 6 of Exhibit 4 which was the lease arrangement as between him and Circuit Finance, in particular in respect of the dates that appear on those pages. Mr Dunjey gave evidence that he believed that he had signed both of those pages on different dates and did not sign both of those pages on the 10th November 2005 as indicated by the dates as they appear on those pages. He also stated that the date, 10th November 2005, which appeared on both pages 5 and 6 was not in his handwriting but accepted that the initial on page 5 (where June was crossed out) was his. He stated that even though he didn’t know which page he signed on the 10th November 2005, it was about two to three weeks after that, that he had then received a letter from Mr Garcia requesting that he place his initials on pages of the lease documentation and was asked to sign the paperwork. [49] Mr Williams continued with cross examination of Mr Dunjey after the recommencement of the trial in June 2008. While under cross examination, Mr Dunjey stated that at the point when Mr Wells (Access Mercantile) had repossessed the ten machines on behalf of Circuit Finance, Mr Wells had taken eight machines from the various sites around Brisbane (not including Brisbane Square) and two machines, which he maintained were his, directly from Speciality Vending’ premises which were still in boxes. Mr Dunjey stated that that had left him with three machines remaining in his possession (as he only had ever received thirteen coffee machines in total). He stated that two of those three machines had remained on site at the Brisbane Square location for about a month after the repossession had taken place but were subsequently taken back to his place by him (assisted by Mr Peter Wilson) after they had been smashed on site. The other one machine was either at his house or on site at Australian Crawl at the point the repossession took place. [50] Mr Dunjey accepted that he had sold two machines at an auction after repossession had taken place but disagreed that those machines belonged to finance companies as he considered they were his as they were two of the six bonus machines he had received. He also disagreed with the proposition that the two machines he had sold at auction were both in perfectly good working order and stated that one was a ‘smashed’ machine notwithstanding that he had received the same price for both at the auction. -- 12 of 36 -- 13 [51] It was put to Mr Dunjey that he had also received six pinball machines from Speciality Vending (presumably in lieu of six coffee machines) however Mr Dunjey disagreed, and stated that because he had not received the $50,000 stock that was supposed to be part of his deal with Speciality Vending, he simply went down to Speciality Vending’s premises and took the six pinball machines in lieu of the stock he hadn’t received. [52] Mr Dujney was also cross examined regarding advice that he had received from Mr Wells, that serial numbers had been subsequently found on the machines once the rear panel was removed by unscrewing it. Mr Dunjey denied being told that by Mr Wells and suggested he was a liar because Mr Wells also said in his report (Exhibit 28) that he had picked up two of the repossessed machines from Brisbane Square from that location and that wasn’t true. [53] Mr Dunjey was also asked about Exhibit 5 (the Supply Agreement which he had entered into with Mr Dennis of Speciality Vending). He agreed that the document only revealed twenty four machines the subject of that agreement but maintained that his agreement with Mr Dennis related to twenty six machines in the end as he had received six machines as bonuses rather than the four originally stated due to ‘all the stuffing about’ by the supplier. He denied that a pinball machine was approximately the same value as a coffee machine ($5000). Mr Dunjey was also asked about the locations of the various coffee machines. He stated that he had been to the various sites but hadn’t personally been to Hudson Rd or Bunnings at Underwood. Mr Dunjey also denied emphatically with the proposition put to him that he had agreed to forgo receipt of the four bonus machines (as stated in the Supply Agreement) as he had borrowed $21,000 from Mr Dennis which he hadn’t paid back and Mr Dennis was happy to write off the debt owing in that manner and Mr Dunjey had agreed. In a nutshell, Mr Dunjey emphatically denied that he had made any agreement with Mr Dennis regarding receipt of six pinball machines in lieu of six coffee machines (one of which was to be a bonus), that he would forgo his four bonus machines under the Supply Agreement in order to write off a debt he owed to Mr Dennis and that he had in fact received fifteen coffee machines in total, thirteen of which were on sites and two which had remained at Speciality Vending’s premises. [54] Mr Dunjey was then asked whether it was always his understanding that he would take delivery or possession of the coffee machines directly from Speciality Vending. Although, initially Mr Dunjey did not accept that proposition, he ultimately accepted it in that he stated that it was his understanding that Speciality Vending would directly place the machines on site for him and then advise him of that fact. He also agreed he did not ever alter that arrangement at any time with Speciality Vending and that he had always understood that Speciality Vending would be the one making delivery of the coffee machines in accordance with his understanding. [55] As a result of Mr Dunjey being unable to persuade Mr Dennis of Speciality Vending to give evidence in support of his case, Mr Dunjey was allowed to give further evidence in respect of a letter which he had received from Speciality Vending dated 17th May 2006 (Exhibit 32). He gave evidence that the information contained in that letter wasn’t true insofar as the coffee machines listed with serial numbers (relating to Circuit Finance) never had numbers on them. Mr Dunjey also denied telling Mr Wells of Access Mercantile that he had moved the two coffee machines that were originally situated at Brisbane Square to different locations. -- 13 of 36 -- 14 Credibility [56] My assessment of Mr Dunjey as a witness during the proceedings, based on my observations of him while he gave evidence, was that he clearly felt aggrieved by the way he believes he had been treated by Mr Graham Dennis of Speciality Vending. While it may be that Mr Dunjey might well have some legitimate grievances against Mr Dennis, those are matters which I am not able to determine at this juncture. [57] Mr Dunjey did not strike me as a witness who was being deliberately evasive in his evidence nor did I consider him to be a witness who was being deliberately untruthful in his evidence to the court. The evidence which he did provide to the court, did however primarily appear to be based on his own perceptions and beliefs and have in part, been formed by his own particular reference to documentation which he had either seen or read prior to the hearing of this matter. For example, he considered that Mr Wells was not a truthful witness as he believed (a fact that was not correct) that Mr Wells had said in his report (Exhibit 28) that he Wells had repossessed two coffee machines from Brisbane Square. He also maintained that he was certain he had signed two different sets of lease arrangements with Circuit Finance. That belief however was primarily based on the fact that there were two lease assessment summary forms created by Circuit Finance on the 31st October 2005 and 12 th January 2006 respectively (Exhibit 1 Tab ‘C’ and ‘N’), and as such, he believed that he must have signed a new lease arrangement (without any general consent for a caveat) on that last date. That evidence however is difficult to accept when Mr Dunjey himself told me that he could not even remember specifically what documents he had even signed or at any particular time. Indeed, the evidence from Mr Woolmer on this point confirms that Mr Dunjey did in fact sign a lease with Circuit Finance with a general consent to caveat and that he was well aware of the implications of doing so. [58] The lack of documentation in support of other assertions which Mr Dunjey also made at trial did little to assist his own case. For example, while his 2006 diary (Exhibit 3) contained entries noting that he had spoken to Circuit Finance in respect of non delivery by the supplier of the coffee machines, it did not contain any detail of the content of those conversations, nor who Mr Dunjey says he spoke to. His diary also did not contain any entries relating to the conversations which he said he had with Mr Castellas. No documentation was produced to support the conversations which he said he had with a ‘representative or agent’ of Australian Finance (Mr Horton) during 2005. Mr Dunjey was also unable to produce any diary evidence relating to conversation that he said he had with ‘Belinda’ during 2005 that may have assisted with his counterclaim against Circuit Finance. Those conversations however formed the substantial basis for the ‘counterclaims’ which Mr Dunjey subsequently filed in these proceedings against Circuit Finance and Australian Finance respectively. The pleadings which had also been prepared on his behalf (by his former legal representatives) during the course of the litigation also did little to assist the case which he presented at trial. For example, in respect of the defence filed regarding the claim made against him by Australian Finance, he had in effect, admitted to the entirety of its’ claim but maintained that he had only defaulted under the terms of that lease as a result of Circuit Finance’s wrongful repossession of Australian Finance’s machines. Notwithstanding that fact, Mr Dunjey continued to maintain at trial that he had only ever received two, or at best, three of the five machines, the subject of that claim. [59] While I accept that Mr Dunjey did his ‘very best’ to present his own case at hearing, it is difficult for me to accept Mr Dunjey’s evidence as reliable particularly as it related -- 14 of 36 -- 15 to his recollection of certain conversations he said he had with various people (which formed the substantial basis of his respective counterclaims against Circuit Finance and Australian Finance) in circumstances where there was no other tangible evidence presented at hearing which may have lent support to his account. It was also difficult for me to accept Mr Dunjey’s own evidence as it related to the ‘ownership’ of the thirteen coffee machines which he says he actually received delivery of. For example, Mr Dunjey was unclear himself during his own evidence how many of those machines belonged to him or to Australian Finance. It is also difficult to accept Mr Dunjey’s belief that none of those machines belonged to Circuit Finance, particularly in view of Mr Dunjey’s own evidence that he didn’t believe anyone could tell who owned the machines which he had received from Speciality Vending (as a result of the lack of identifying serial numbers), a fact which was not however subsequently borne out to be correct as observed by Mr Steven Wells. [60] Mr Dunjey called a series of witnesses to support his case (primarily against Circuit Finance). Those witnesses were Mr Kane Woolmer, Mr Craig Harris, Ms Jennifer Simms, Mr Peter Wilson, Ms Annette Dehoon, Mr Neil Skeldon, Mr Odino Borgo, Mr Steven Wells, Ms Robyn Graham and Mr Joe Garcia. [61] A summary of the evidence given by each of the witnesses at hearing follows in order that my findings (including credit) may be more readily understood. Mr Kane Woolmer [62] Mr Woolmer of First Choice Home Loans stated that he was Mr Dunjey’s finance broker in late 2005. He recalls approaching Mr Garcia of Astute Financial Services himself in October 2005, on Mr Dunjey’s behalf, as Mr Garcia was more experienced in the industry than he was in leasing arrangements. He stated that Mr Garcia had then approached Circuit Finance to organise the relevant documents required for approval to come through from Circuit Finance to Mr Garcia as Mr Woolmer was not able to approach the finance company himself. Any documents then received by Mr Garcia from Circuit Finance were then sent on to him. He then subsequently returned them back to Mr Garcia in order that he could then send them back to Circuit Finance. [63] He gave evidence that on the 13th December 2005 he had sent a letter on Mr Dunjey’s behalf to Mr Garcia requesting that no monies be paid by Circuit Finance until Mr Dunjey had sighted the machines and requested that any payment to Speciality Vending be delayed until 19th December 2005 at which point delivery was to take place (Exhibit 12). He gave evidence that he had spoken to Mr Garcia on the telephone either before or after that time regarding that same issue but was certain that call would not have been made after the 24th December 2005 as he had gone on holidays on Christmas Eve and did not return again until 15 th January 2006. He stated that Robyn Graham had then taken over the handling of Mr Dunjey’s file after he had gone on leave at that time. Mr Woolmer also recalled an e mail (Exhibit 13) from Mr Garcia regarding a caveat over Mr Dunjey’s house and confirmed that Mr Garcia had told him that it was only an unregistered caveat and only became registered upon any default by Mr Dunjey under the terms of the lease. He recalled speaking to Mr Dunjey about that and Mr Dunjey being happy with that advice. Indeed he recalled being present on the 10th November 2005 when Mr Dunjey executed a general consent to caveat and the other lease documentation contained in Exhibit 1 with Circuit Finance. -- 15 of 36 -- 16 [64] Mr Woolmer also couldn’t recall whether there were ever two different sets of documents for Mr Dunjey to sign from Circuit Finance or whether they were simply the same set as too much time had passed and he simply couldn’t remember. Craig Harris [65] Mr Harris gave evidence that he worked for Mr Dunjey for approximately 3 years having commenced work sometime towards the end of 2005. He recalled hearing Mr Dunjey on many occasions throughout the year (up until December 2006) ringing up a finance company about his coffee machines but agreed under cross examination that any knowledge he had of those conversations were as a result of what Mr Dunjey had told him. Jennifer Sims [66] Ms Sims gave evidence (by telephone from New Zealand) that she had worked for Speciality Vending for a few months. Her duties primarily entailed office work. She stated that she had seen coffee machines with Mr Dunjey’s name on them with ‘sold’ written on them so she presumed they were Mr Dunjey’s machines. She stated she did not see any serial numbers on those machines. Under cross examination, she stated she had worked for Speciality Vending only during the period end of September to the 1st week of December 2006. She also stated under cross examination that although she had never taken the rear panels off Mr Dunjey’s machines, she had seen into the back of them because Graham (Dennis) was constantly undoing machines and showing her bits and pieces and she had own personal interest in coffee machines at the time herself. She gave evidence that because Mr Dunjey’s machines had been sitting near her office, she believed that she would have had occasion to also see into the back of Mr Dunjey’s coffee machines. Peter Wilson [67] Mr Wilson was a friend of Mr Dunjey and had been for approximately 20 years. He recalled helping Mr Dunjey moved two coffee machines from a construction site somewhere in the Brisbane CBD sometime in 2007, he thought perhaps late 2007. He said he recalled they were damaged, in his view, beyond repair, and that the machines had been taken back to Mr Dunjey’s house. He recalled seeing no serial numbers on those machines (or even on another machine which he had also looked at when over at Mr Dunjey’s place) and stated he had virtually looked everywhere and pointed that out to Mr Dunjey. He couldn’t however remember any rear panels being taken off those machines, thought they might have come off, but said that he could virtually see most of the machine anyway. Annette Dehoon [68] Ms Dehoon was the partner of Mr Dunjey. They have two children together. She gave evidence that she looked after the coffee machines in that she ‘serviced’ them in that she cleaned them, replaced cups etc. She stated she also did the books and kept a diary (2006) of any servicing which she did and at what location. [69] Ms Dehoon gave evidence that she did not recall a coffee machine even being at the Holiday Inn. She referred to her diary and stated that the first machine to be placed was on 13 th January 2006 at Australian Crawl (Tingalpa Health Centre as it was then). On -- 16 of 36 -- 17 the 18th January 2006, 2 coffee machines were placed at City Auctions. On the 2nd February 2006, a machine was placed at Bunnings Compton Road. On the 20th February, a machine was placed at City Council office, Carindale. On the 24th February a machine was placed at Bunnings, Hudson St. On 2nd March 2006, a machine was placed at Slack Creek Radiator and also another at Mims Wicked Car Wash. On the 16 th March 2006, that latter machine was transferred to the Woodridge State School. In May 2006, there were also two machines at the George and Adelaide St construction site. On the 10 th May 2006, a coffee machine was placed at the Cleveland Fish Shop and another at the TAB, in Seville St. The last machine was also installed on that date at the IGA Supermarket Logan Rd. [70] Ms Dehoon gave evidence that there were thirteen coffee machines which she was servicing and she did not see any serial numbers on them. She gave evidence that coffee machines were never placed at other locations such as Mitre 10 stores. She gave evidence that the two (damaged) coffee machines situated at Brisbane Square were not repossessed by Mr Wells and in fact had remained at that location until July at which time Mr Dunjey had taken them back to their residence. She recalled hearing a conversation that Mr Dunjey had with Circuit Finance, prior to Christmas 2005 requesting that payment not to be made to Speciality Vending until the machines had been delivered but agreed that she didn’t know who he was actually talking to. [71] She recalls going with Mr Dunjey to Speciality Vending’s premises early 2006 and seeing two or three machines that were still in their boxes which she understand was their machines. She recalls Mr Dennis always saying that more machines would be coming but stated that they were never received. [72] She recalls taking pinball machines from Speciality Vending’s premises because the stock promised by Mr Dennis had not been received. She didn’t recall any debt that Mr Dunjey owed Mr Dennis. Ms Dehoon stated the coffee machines said to be sited at various locations by Speciality Vending in correspondence sent by it to Circuit Finance and Australian Finance dated 8 th October 2005 (Exhibit 23) and 17th November 2005 (not tendered as exhibit) were never at the locations as stated in those letters. [73] Under cross examination, Ms Dehoon agreed that from at least 8th February 2006 she was the person that primarily serviced the coffee machines (taking money etc) and Mr Dunjey would primarily maintain or repair the machines. She agreed that she had no dealings with First Choice Home Loans staff nor prepared any of the paperwork required for finance funding. She also agreed under cross examination that she couldn’t tell which finance company had financed which machine in view of the lack of serial numbers but maintained that five of the coffee machines which they had received were theirs as they had received them as bonus machines. [74] She was also cross examined about the green exercise book (Exhibit 24). She agreed that she hadn’t mentioned a coffee machine in her evidence in chief located at Coles Store, Colmslie Rd. She also agreed that at any given time there were three coffee machines at three different Bunnings Store locations. She also agreed she did not make a complaint to Police or anyone else about other persons without authority servicing their machines and taking money without permission. [75] She also recalled receiving an e mail from Speciality Vending dated 19th May 2006 stating in it certain machines that had serial numbers nominated on them. She stated that even though she hadn’t seen any serial numbers on the machines they had received -- 17 of 36 -- 18 (when Paul was working on them with the backs off) she hadn’t wrote to Mr Dennis to advise him of that fact after she had got that e mail nor did she speak to Mr Dennis herself as Mr Dunjey was speaking to him on the phone a lot. Mr Neil Skeldon [76] Mr Skeldon gave evidence that he had been employed as a Storeman with Grays Auctions for approximately 6 and ½ years. He recalls receiving stock for auction from Access Mercantile namely coffee machines with serial numbers (Exhibit 27). He gave evidence that it was his usual practice to check any incoming stock for identifying numbers or checking the incoming documentation regarding that stock, the description given if he couldn’t find one on the machine. He recalls receiving 2 brand new coffee machines from Access Mercantile but couldn’t recall them still being in their boxes. He also couldn’t remember if the machines he had actually received from them had serial numbers on them or not as it was too long ago. [77] During cross examination, Mr Skeldon agreed that he wouldn’t normally take off a panel from the machine in order to locate serial numbers. Mr Odino Borgo [78] Mr Borgo gave evidence that he was a finance broker by occupation but also currently runs a coffee vending machine business. He Borgo gave evidence that he had bought 34 coffee machines, some from various auctions. He recalls buying two coffee machines at the first auction (Gray’s Auction) he attended which had ‘‘some sticky things put on by Speciality Vending on the inside of the back plate where – in the water solenoid valve is on the back of the machine’’. He stated he didn’t pay attention to the stickers so couldn’t say whether the stickers had serial numbers on them or not. He stated however that other machines he had brought at other auctions had no serial numbers on them. He also gave evidence that he had done a ‘gentleman’s handshake’ with Mr Dennis of Speciality Vending regarding his receipt of a coffee machine in lieu of stock which Mr Dennis still owed him, that stock being in the order of $3500 - $4000. He also gave evidence that he had also brought a further (damaged) machine from Mr Dunjey that was at his house. [79] Mr Borgo said that in order to see the back panel of the coffee machines, you are required to unscrew the 8 screws, disconnect the hoses and the electrical wiring which activate the solenoid. It was after he had done that exercise that he noticed the ‘stickers’ from Specialty Vending on the back panel. Mr Steven Wells [80] Mr Wells gave evidence that he was a commercial agent with Access Mercantile and had been during 2005 and 2006. He stated in his evidence that he did not repossess any coffee machines on behalf of Circuit Finance from Brisbane Square as he had been advised by Mr Dunjey that Mr Dunjey had moved those particular machines to different locations. He confirmed under cross examination that he had prepared a report for Circuit Finance (Exhibit 28) which to the best of knowledge, the contents of which was true and correct. He confirmed that when he originally went out to inspect the coffee machines neither he or Mr Dunjey could not find any serial numbers on the machines however after talking to Mr Dennis of Speciality Vending, Mr Wells was advised where to look for them and he subsequently inspected the machines again and -- 18 of 36 -- 19 discovered the serial number stickers on the back panel of the machines after the rear panel was unscrewed. Mr Dunjey was not present on that second occasion and Mr Wells gave evidence that once he told Mr Dunjey he had found them, Mr Dunjey seemed surprised that they were located inside the back panel. He couldn’t however remember checking for serial numbers on the two coffee machines he picked up from Speciality Vending’s premises as they were relatively new machines. He recalls checking all the machines again when they were subsequently repossessed and recalls seeing stickers on all the machines except on the two at Specialty Vending’s premises. Ms Robyn Graham [81] Ms Graham gave evidence that she was a Loans Manager with First Choice Home Loans and had been for 6 years. She recalls Mr Dunjey seeking their assistance in respect of securing a lender and that initially Mr Kane Woolmer had dealt with Mr Dunjey. She stated that she only took over Mr Dunjey’s file from Mr Woolmer after he went on holidays. [82] She was unable to specifically recall the specific documentation relating to Mr Dunjey’s file. She stated that the letter which she was shown during her evidence by Mr Dunjey (Exhibit 17) seem to her to mean that other documents still had to be initialled and signed and forwarded on to the finance company, Circuit Finance, even as at 10 th January 2006. [83] During cross examination, Mr Graham agreed that she only took over the file after Mr Woolmer went on holidays and that prior to that time Mr Woolmer had handled Mr Dunjey’s file. Ms Graham agreed that she would not have send the letter dated 10th January 2006 (Exhibit 17) addressed to Ms Nina Hall of Circuit Finance unless she had Mr Dunjey’s authority to do so and that she had sent the letter in the terms stated because it was her understanding that Mr Dunjey had wanted to get the finance company to pay to money in order that he could purchase the coffee machines as soon as possible. Mr Joseph Garcia [84] Mr Garcia gave evidence that he has been employed as a Finance Broker with Astute Financial Management since 2004. Mr Garcia gave evidence that as a broker with Astute, he did not have any agreement with Circuit Finance personally as an individual, but rather, he was required to seek accreditation through an aggregator, who holds the agreement with the finance companies, in order to then introduce financial business to a particular finance company. [85] Mr Garcia recalled Mr Kane Woolmer of First Choice Home Loans approaching him for assistance in late 2005 in order that Mr Garcia could help his client Mr Dunjey obtain finance from a lender. Mr Garcia recalls that he was able to help insofar as Circuit Finance was a company who could be presented with an application from Mr Dunjey in respect of the particular goods involved. Mr Garcia recalled an e mail dated 13 th December 2005 (Exhibit 12) sent to him from Mr Woolmer asking that payment by Circuit Finance by delayed until the 19th December 2005. He stated that those instructions from Mr Woolmer on Mr Dunjey’s behalf would have been relayed on to Circuit Finance at that time. Mr Garcia also could not specifically remember Mr Woolmer calling him by phone either before or after the 13th December 2005 but did recall that in Mr Dunjey’s case there had been delays with respect to his financial -- 19 of 36 -- 20 transaction going through because some of the machines hadn’t arrived from overseas or something of that nature. Mr Garcia also confirmed that he understood it was Mr Dunjey who had made first contact with the 3 rd party supplier and that the delays that arose were primarily as a result of the goods not having arrived to the supplier. [86] Mr Garcia also recalled being asked by Mr Woolmer whether the caveat over Mr Dunjey’s property would be unregistered. Mr Garcia stated that he had checked with Circuit Finance on that point as he had no authority to say that it was and advised Mr Woolmer that it was to be an unregistered caveat over Mr Dunjey’s property. Mr Garcia also confirmed in his evidence that if there was an issue with any invoices which Circuit Finance may have received in relation to the transaction, it was within their domain to follow that up not his as he had no authority. [87] Mr Garcia also confirmed that he had advised Mr Woolmer several times that before giving the go ahead to the finance company (Circuit Finance) to fund the loan, Mr Woolmer should ensure that his client (Mr Dunjey) had taken possession of the goods in question and was happy with them. Mr Garcia also confirmed that it was up to Mr Dunjey (or his own finance broker Mr Woolmer) to ensure that the goods the subject of the finance transaction had been delivered in accordance with what was stated in the invoice from Specialty Vending. Mr Garcia, when asked about an e mail dated 9 th January 2006 (Exhibit 30), confirmed that if invoices sent to the finance company required amendment or weren’t suitable, the lender would have advised of that fact, and Mr Garcia would then tell Mr Dunjey’s own broker to get them in order so that he could then get the correct invoices issued from the supplier and send them onto Mr Garcia in order that he could then submit onto the finance company. Mr Garcia confirmed that it’s not simply a question of an invoice being sent by a supplier to a finance company that causes payment to be made, but rather the authority to pay the 3rd party supplier comes from the relevant client, which in this case, Mr Garcia stated was from Mr Dunjey himself or his own finance broker, Mr Woolmer. [88] During cross examination, Mr Garcia confirmed that he had never acted for Circuit Finance as their agent or representative nor had he ever recalled ever representing himself to Mr Dunjey personally that he was acting on behalf of, or as a representative of, Circuit Finance. He reiterated again that his role is that he introduces finance business to Circuit Finance and that’s all. He specifically stated that he had no authority to make decisions for Circuit finance in relation to any financial transactions. He also couldn’t recall whether he spoke to Mr Dunjey either in November or December of 2005, but believed he only spoke to Mr Woolmer. He stated that his relationship with Mr Woolmer’s company was simply that of another broker house and that he was sure that he had not even met Mr Dunjey personally at all during 2005. [89] Mr Garcia also denied the proposition which was put to him by Mr Dunjey during cross examination, which was that he had told Mr Woolmert that Circuit Finance would not advance moneys to the 3rd party supplier until Mr Woolmer had confirmed with Mr Dunjey that the goods were available for delivery or pickup. Mr Garcia stated that he would never have said that to Mr Woolmer as he didn’t have the authority to make such a statement on behalf of Circuit Finance. Mr Garcia also confirmed that he did not even know that the letter sent by First Choice Home Loans directly to Circuit Finance on the 10th January 2006 (Exhibit 17) has even happened. -- 20 of 36 -- 21 Credibility of Witnesses [90] I had no real cause to regard the evidence given by any of the witnesses called by Mr Dunjey as either deliberately untruthful or evasive. Each of the witnesses called, in my view, gave their evidence to the best of their recollection and ability, particularly in light of the time that has since passed since the subject events. Some of those witnesses however gave evidence that didn’t particularly ‘sit well’ with the subject events. For example, Ms Simms stated that she had only worked at Speciality Vending from the end of September to early December 2006, yet most of the relevant events had already taken place by mid 2006 (when repossession had occurred). Mr Wilson for example gave evidence that he had only helped Mr Dunjey move two coffee machines from a construction site in Brisbane sometime in mid or late 2007 yet Mr Dunjey gave evidence they were moved from Brisbane Square about a month or so after repossession had occurred in June 2006. Their respective ‘observations’ regarding any serial numbers on the coffee machines (or lack thereof) of which they gave evidence about must therefore be considered in that light. As such, the weight which I can attach to that evidence is limited. [91] Some of the witnesses also had difficulty with recollection. For example, Mr Harris gave evidence that he only knew of certain conversations and events because that was what Mr Dunjey had told him. He also seemed somewhat vague in his evidence, perhaps readily explicable by the passage of time in respect of matters of which he gave evidence. His evidence did little to advance Mr Dunjey’s case. Mr Skeldon and Ms Graham also had trouble recalling certain events with precise details due to the passage of time. However I had no cause to reject their evidence on matters which they clearly were able to recall or speak of generally as they both struck me as witnesses of truth. [92] In respect of Ms Dehoon, while the evidence which she gave at hearing was readily assisted as a result of the readily available documentation at hearing, she still struck me as a witness who still did her very best regardless, to recall matters of which she gave evidence about. [93] In respect of Mr Wells, I carefully observed him while he gave his evidence. He struck me as a witness of truth. I had no cause to doubt his evidence particularly in circumstances where he had been engaged as an independent agent to repossess certain goods on behalf of a finance company. For example, Mr Wells did not try to suggest that he had seen identifying serial numbers on all ten coffee machines that he repossessed. Rather, he admitted that he had only ever seen serial numbers on eight of them as two of the machines at the Speciality Vending premises were relatively new and so he didn’t check those. The report which he had also prepared (Exhibit 28) contained details of information which Mr Wells had received directly from Mr Dennis. In view of the fact that Mr Dennis was not called as a witness in these proceedings, I have not placed any weight whatsoever on that information. Having said that however, I have taken into account those matters contained in his report which Mr Wells was able to give direct evidence of, regarding any conversations which he said he had with Mr Dunjey, what he saw upon his inspections of the subject coffee machines and subsequent repossession of those machines. I had no reason to reject his evidence on those matters. [94] In respect of Mr Garcia and Mr Woolmer, they also struck me as witnesses of the truth. They gave me no cause to doubt the veracity of their evidence. Indeed, the evidence -- 21 of 36 -- 22 given by Mr Garcia struck me as being entirely consistent with the evidence given by Mr Woolmer insofar as any dealings which they said they had had with each other, in particular as it related to Mr Dunjey’s application for loan approval with Circuit Finance. [95] I also had no reason to reject the evidence given by Ms Graham, Mr Skeldon or Mr Borgo on matters which they were able to recall during their evidence though it was clear that Mr Borgo also felt aggrieved by Mr Dennis in respect of certain dealings as between them. Findings Has Circuit Finance proved its’ claim against Mr Dunjey? [96] Having carefully considered all of the evidence available, I have come to the conclusion that the plaintiff, Circuit Finance, has proved its’ claim against Mr Dunjey. [97] In arriving at that conclusion, I have taken into account the following matters: • All of the exhibits tendered in these proceedings for my consideration, in particular Exhibit 17 which had authorised payment be made by Circuit Finance to the 3rd party supplier, as a result of that correspondence having been sent by Mr Dunjey’s finance broker, Ms Robyn Graham. • The testimony of Mr Wells, in particular, as it related to his inspections of the various coffee machines and the subsequent repossession of ten coffee machines identified by serial numbers to be the goods, the subject of the lease which Mr Dunjey had with Circuit Finance. • The testimony of Mr Hough, in particular, as it related to the identification of the relevant documentation contained in Exhibit 1 and that Mr Garcia was not a servant or agent of Circuit Finance but rather he was simply a finance broker who was accredited with his finance company to introduce business to it. • The testimony of each of the witnesses who gave evidence in these proceedings and my assessment of them, as set under the relevant heading Credibility. • The documentation signed by Mr Dunjey 10th November 2005 contained in Exhibit 1 Tab E, F, G, • The terms of the lease signed by Mr Dunjey 10th November 2005 (Exhibit 1 Tab D), in particular Clauses 5 and 7. • The acceptance by Mr Dunjey in his amended defence regarding the ‘description’ of the goods the subject of the lease and the terms and conditions as contained in the lease. • The acceptance by Mr Dunjey in his amended defence that he failed to make instalment payments to the plaintiff that had became payable, and the effect of Clauses 8 and 9 of the Lease. • The acceptance by Mr Dunjey that he had made several instalment payments under the terms of the lease before he eventually stopped payment in that regard (Exhibit 1 Tab ‘S’). • The terms of the Supply Agreement entered into between Mr Dunjey and Speciality Vending dated 14th November 2005 (Exhibit 5). -- 22 of 36 -- 23 • The pleadings initially filed on behalf of Mr Dunjey’s in defence of Circuit Finance’s initial claim and the subsequent pleadings filed including Mr Dunjey’s amended defence and counterclaim. • Mr Dunjey’s own evidence that he always understood that it would be Speciality Vending that would be delivering the coffee machines to him to various locations around Brisbane. • The evidence tendered with respect to the fees and costs associated with the repossession and the subsequent sale of the goods seized (Exhibit 1 Tab PQ, R). [98] In addition to these matters, I have also taken into account each of the matters specifically pleaded in Mr Dunjey’s counterclaim filed 5th June 2008 (by leave): Breach of Contract [99] Mr Dunjey seeks to argue that as a consequence of certain representations having been made to him by Circuit Finance through it’s servant or agent, it was an implied term of the lease that Circuit Finance would not advance any money to Speciality Vending until it had confirmed with Mr Dunjey that the five coffee machines, the subject of that lease, had been delivered. [100] The various representations are said to have been made by Mr Garcia (a finance broker with Astute Financial Services) to Mr Dunjey’s own finance broker, Mr Woolmer (First Choice Home Loans) on or about 10th November 2005. During that conversation, Mr Garcia is alleged to have said to Mr Woolmer that no monies would be advanced by Circuit Finance to Speciality Vending until Mr Woolmer had confirmed with Mr Dunjey that the goods were available for delivery to him from Speciality Vending. On the 13th December 2005, a letter was sent by Mr Woolmer, on Mr Dunjey’s behalf, to Mr Garcia asking that no monies be advanced until after 19th December 2005 as delivery of the goods was to take place on that date (Exhibit 12). Mr Dunjey argues that Mr Garcia was, at the material time, acting in his capacity as, or within his actual or apparent authority as a servant or agent of Circuit Finance, for and on its’ behalf when he had dealings with Mr Dunjey’s finance broker, Mr Woolmer. The difficulty that faces Mr Dunjey in this regard is that even though the evidence available shows that Mr Woolmer and Mr Garcia clearly had various discussions with each other regarding Mr Dunjey’s application for finance with Circuit Finance, that evidence does not, in my mind, support a conclusion that Mr Garcia was acting in his capacity as, or within his actual or apparent authority as a servant or agent of Circuit Finance, for and on its’ behalf during that time. [101] In arriving at this conclusion, I have taken into account the following evidence: [102] Mr Hough’s evidence, which I had no reason to reject, that Mr Garcia was not a servant or agent of Circuit Finance but was merely one of about twenty or thirty independent finance brokers who were accredited to introduce business to his finance company for approval and as such, he had no authority whatsoever to bind the company. [103] Mr Woolmer’s evidence, which I also had no reason to reject, that he had decided to approach a colleague in the same industry who he knew had leasing experience (Mr Garcia) in order that Mr Garcia might then provide assistance to him regarding any financial options that might be available to his client Mr Dunjey as Mr Woolmer had no experience in that field himself. That evidence was indeed supported by Mr -- 23 of 36 -- 24 Garcia’s own evidence namely that he was able to assist Mr Woolmer by introducing business to Circuit Finance which he then did for Mr Woolmer on behalf of his client, Mr Dunjey. There was also evidence from Mr Woolmer requesting that payment by Circuit Finance to the 3rd party supplier be delayed until 19th December 2005 (Exhibit 12 dated 13 th December 2005). That evidence was accepted by Mr Garcia. He stated that he had relayed that request onto Circuit Finance for Mr Woolmer at that time. Mr Garcia also confirmed in his evidence that he recalled that there had been many delays relating to the goods in question. There was also the evidence by Mr Woolmer that he had made a phone call to Mr Garcia, either before or after the 13th or 19 th December 2005 (as his evidence at hearing was not entirely clear on the actual date), but certainly no later than 24th December 2005, advising Mr Garcia, words to the effect, that the machines hadn’t yet arrived because they were still on the docks. Mr Garcia recalled some discussion of that nature with Mr Woolmer. That evidence however, even taken as a whole, does not in my mind automatically support a conclusion that Mr Garcia was therefore acting in his capacity as, or within his actual or even apparent authority as a servant or agent of Circuit Finance, for and on its’ behalf at that time. [104] Even notwithstanding the evidence to which I have just referred, Mr Garcia also gave evidence, which I have no reason to reject, that he did not accept that he had made the representation attributed to him in the pleadings said to have been made to Mr Woolmer on behalf of Circuit Finance on or about 10th November 2005. Indeed, his evidence was that he would not have done so because he did not have any authority to make such a statement on behalf of Circuit Finance. While Mr Woolmer gave no direct evidence of any such representation having been made on or about 10 th November 2005 to that effect by Mr Garcia, the evidence which both witnesses gave on this issue supports a conclusion that certainly a discussion had taken place over the telephone at least prior to the 24th December 2005 between them with respect to the goods in question having been delayed. I have no reason to reject Mr Garcia’s evidence as it relates to his recollection insofar as any representation said to have been made by him on behalf of Circuit Finance to Mr Woolmer on or about 10th November 2005. He denied that he had made any such representation on the company’s behalf and I have no cause to doubt his evidence in that regard. Indeed, his recollection regarding Exhibit 12 and any subsequent discussion regarding any delay of the goods is entirely consistent to that of Mr Woolmer’s own recollection. [105] It is also of some real significance that Mr Garcia gave evidence that he had told Mr Woolmer several times throughout their dealings to ensure that Mr Woolmer’s client, Mr Dunjey, had first taken possession of the goods and was happy with them before Mr Woolmer gave any ‘go ahead’ to Circuit Finance to pay monies to the 3rd party supplier. Mr Garcia’s evidence in that regard, in my mind, is entirely consistent with Mr Garcia’s own denial of the representation said to have been made by him on behalf of Circuit Finance to Mr Woolmer on or about 10 th November 2005 (or indeed at any point thereafter but before 24th December 2005). It is also of some significance that Mr Garcia gave evidence that he was sure he hadn’t even spoken to Mr Dunjey at all personally during 2005 (a fact confirmed by Mr Dunjey in his own evidence) and that he did not even know that Ms Graham, Mr Woolmer’s colleague, had subsequently given the ‘go ahead’ to Circuit Finance to pay the 3rd party supplier on the 10th January 2006 as that correspondence (Exhibit 17) had not ever been sent to him. [106] It is difficult to conclude, having regard to the evidence to which I have just referred, that it could be said that either Mr Woolmer or Mr Dunjey would have understood that Mr Garcia was working for or on behalf of Circuit Finance in those circumstances or -- 24 of 36 -- 25 even had its’ apparent authority to do so. Mr Woolmer’s own evidence supports a conclusion that he certainly never understood that Mr Garcia was acting for or on behalf of Circuit Finance and as such, it is difficult to accept in those circumstances that Mr Dunjey (who had no direct dealings with Mr Garcia at all during 2005) could have himself therefore believed that Mr Garcia was acting for or on behalf of Circuit Finance either with actual or even its’ apparent authority in those circumstances. [107] Mr Dunjey also seeks to rely on the conversation which he had with an employee of Circuit Finance (‘Belinda’) on the 22nd December 2005. During that conversation Belinda is said to have stated ‘that would be fine’ in response to Mr Dunjey’s own request that no money be paid to Speciality Vending by Circuit Finance until such time that he had rung them to confirm that the leased goods were available to be delivered to him. The difficulty that faces Mr Dunjey in respect of this representation is that no person called ‘Belinda’ was called to give evidence at the trial. Mr Dunjey was also unable to refer to any diary note of the conversation which he says he had with ‘Belinda’ on that date. [108] The other difficulty that faces Mr Dunjey in respect of all of the representations which he has sought to rely upon is that each of those representations were said to have been made to him (or Mr Woolmer) at a time prior to the subsequent authorisation which was then given on his behalf on the 10th January 2006 by Ms Graham (Exhibit 17), his finance broker, who requested that payment be made by Circuit Finance to the 3rd party supplier as soon as possible, such payment being made the next day. It is difficult therefore to accept under those circumstances that it was still incumbent upon Circuit Finance, having received that letter of authorisation, to check with either Ms Graham or Mr Dunjey at that point or even after that he had actually received delivery of the goods in question from the 3 rd party supplier before Circuit Finance made the payment to Speciality Vending the next day. That is particularly so in light of Mr Dunjey’s own evidence where he agreed that delivery of the actual goods in question was always going to be a matter as between him and Speciality Vending in accordance with their supply agreement. [109] Accordingly, having determined that there was insufficient proof at hearing of the alleged representations said to have been made by either Mr Garcia or ‘Belinda’, it follows that I am not satisfied that any variation of the original terms of the lease can be implied in all the circumstances. Nor am I satisfied that such a term may be implied, even absent those representations because of the reasons already stated. [110] As such, this claim must fail. Negligence; Misleading and Deceptive Conduct (s.52 Trade Practices Act); Estoppel, [111] Having regard to the findings which I have made in respect of the alleged representations relied upon as the basis for the Breach of Contract claim, it follows that each of these claims must also fail. [112] In respect to the Misleading and Deceptive Conduct claim, in light of the fact that Mr Dunjey agreed that he had executed the lease with Circuit Finance on 10th November 2005 and having accepted that authority was given on his behalf by his own finance broker, Ms Robyn Graham to Circuit Finance to pay the 3rd party supplier (Exhibit 17) on the 10 th January 2006, it is difficult to accept in those circumstances that there has been any misleading and deceptive conduct as pleaded. -- 25 of 36 -- 26 Unconscionable Conduct; Failure to Act in Good Faith (s.51AC, s.51A(2) Trade Practices Act) [113] Mr Dunjey seeks to assert unconscionable conduct on the part of Circuit Finance in its failure to disclose to him that it would advance money to the 3rd party supplier without confirmation as to whether the machines were ready to be delivered to Mr Dunjey and would, in those circumstances, still seek to enforce the lease. The difficulty that faces Mr Dunjey in respect of this part of his claim is the authority received from by Circuit Finance on 10 th January 2006 (Exhibit 17) from Mr Dunjey’s own finance broker to facilitate payment to the 3rd party supplier as soon as possible on his behalf. [114] Nor am I satisfied on the evidence available that Mr Dunjey has shown that Circuit Finance undertook a positive obligation to ensure that the goods, the subject of the lease, would be delivered to him before making any such payment. Mr Dunjey’s own evidence was that he was aware that the 3rd party supplier had the responsibility of delivering the goods to Mr Dunjey and that he was to receive delivery of them. That is also consistent with the Supply Agreement (Exhibit 5) and its’ terms and consistent with the obligation placed upon Mr Dunjey under the terms of the lease itself to ensure that he took delivery of the goods from his preferred supplier, Speciality Vending. Having regard to the findings which I have already made regarding any alleged representations said to have been made by Mr Garcia and ‘Belinda’, it follows that I am not satisfied that Circuit Finance has failed to act in good faith. Conversion [115] Mr Dunjey seeks to assert that as a result of Circuit Finance’s wrongful repossession of Australian Finance’s coffee machines (which were in his possession at that time) he had suffered loss as a consequence. [116] The difficulty that faces Mr Dunjey in respect of this claim is his own evidence. He consistently gave evidence that he was not able to identify which of the thirteen machines he had received as belonging to whom due to the lack of serial numbers on them. While it is true Mr Dunjey has always consistently maintained that some of the machines that were repossessed by Mr Wells on behalf of Circuit Finance, had belonged to Australian Finance, Service Finance and indeed himself, it is difficult to accept his evidence of this issue without any other further evidence to lend support to his oral testimony in this regard. For example, during the course of Mr Dunjey’ evidence, Mr Dunjey was uncertain how many of the machines that he did in fact receive were even his (initially he thought he had received 6 as bonus machines but later in evidence said he had only ever physically received 5 of those bonus machines). Nor was he certain how many actually belonged to Australian Finance (initially in his evidence he thought he had received two of their machines but later in evidence thought it may have been in fact three). The only part of his evidence that he was certain on was that he was sure that five out of the thirteen coffee machines received were related to Service Finance’s lease. Nor was Mr Dunjey able to indicate how he was able to tell which machines belonged to whom as none of the machines, according to him, had any serial numbers on them. Ms Dehoon also confirmed that she wasn’t able to readily identify the coffee machines received either as a result of her not having never seen any serial numbers on the machines in question either. [117] There was however the oral evidence of Mr Wells on the issue relating to identification of the coffee machines repossessed. Mr Wells gave evidence that when he had initially -- 26 of 36 -- 27 inspected the machines and was unable to see any serial numbers. However upon further inspection he found serial numbers on the back panel on the machines which matched those goods identified in the lease with Circuit Finance. He also checked those numbers again when he went to the various locations to collect the machines for repossession. He admitted that out of the two machines he repossessed he did not see the serial numbers on those situated at Speciality Vending’s premises. [118] There was other evidence given on this issue. Mr Borgo confirmed that he had bought 2 coffee machines from Gray’s Auctions (which Mr Dunjey had sold and believed Mr Borgo had purchased at that auction) and that he noted Speciality Vending stickers situated on the rear panel after he had taken the back panel off by unscrewing it (though he did not take any notice whether any serial numbers were recorded on the stickers at that point). That evidence, in my mind, at least raises the possibility that Speciality Vending stickers were in fact situated on the rear panel of the coffee machines located in a similar position to that observed by Mr Wells when he repossessed the ten coffee machines on behalf of Circuit Finance. Even putting aside that possibility, I have no cause to reject the evidence of Mr Wells and the evidence which he gave regarding his inspections and subsequent discovery of serial numbers recorded on stickers situated on the rear panel on the machines which he eventually repossessed on behalf of Circuit Finance. [119] Mr Dunjey asked me to reject Mr Wells’ evidence insofar as Mr Wells was wrong when he stated in his report (Exhibit 28) that he had repossessed two machines from Brisbane Square. A careful reading of Mr Wells report shows that he did not suggest that he had ever repossessed two machines from Brisbane Square but rather had only inspected them at that location prior to repossession subsequently taking place of them at a different location later. Having accepted Mr Wells evidence, regarding the identification of serial numbers on the ten coffee machines which he noted when he inspected and subsequently repossessed them, as those belonging to Circuit Finance, it is therefore not necessary for me, in my mind, to determine where any of those machines were ever located at any given point in time during Mr Dunjey’s possession of them. Nor is it necessary for me to determine whether Mr Dunjey or Ms Dehoon had ever actually seen the serial numbers on those machines themselves during their possession of them. Their failure to notice any identifying serial numbers on the thirteen coffee machines received may well, in my mind, be more readily understood in light of Mr Dunjey’s own statements, made in his closing submissions to the court, that in all his years of dealing with machinery, serial numbers had always been put on machines either by way of an aluminium piece attached on the machine or the number having been actually put into the metal of a machine itself. It may well be that it was because of those circumstances, Mr Dunjey and Ms Dehoon simply did not notice the serial number ‘stickers’ which had been placed on the rear panel on the coffee machines because they were not the ‘usual’ type of identification they were familiar with. Mr Dunjey also submitted that because there wasn’t any serial numbers on the machines that he saw, it follows that no-one else could be certain now who owned the machines that were ultimately repossessed. That submission however overlooks the evidence of Mr Wells, which I have no legitimate reason to reject. [120] Mr Dunjey also submitted that documentation raised during evidence showed that the coffee machines, the subject of the respective leases with the various finance companies, weren’t even at the locations that Speciality Vending maintained in that correspondence. Evidence was given by Ms Dehoon that no machines had been placed at any Mitre 10 stores for example or at some of various locations listed in Exhibit 23 -- 27 of 36 -- 28 and 26. During evidence, Mr Dunjey referred to Exhibits 23 (addressed to Australian Finance dated 8th October 2005). He also referred to correspondence dated 17 th November 2005 during the course of the hearing (not tendered into evidence from Speciality Vending to Service Finance). The difficulty that faces Mr Dunjey in respect of the submission which he has made is that even if Mr Dunjey’s submission was accepted that Exhibits 23 and 26, on their face, suggest that those coffee machines were located at the various sites nominated in the correspondence dated 8th October and 18 th December 2005 respectively, Exhibits 25 and 32 also show that the coffee machines were in fact located elsewhere at a later point. Ms Dehoon confirmed in her own evidence that there were in fact coffee machines located at the various nominated sites described in Exhibit 25 and 32. Ms Dehoon’s records (Exhibit 24) also confirm these locations. Mr Dunjey’s submission also overlooks the evidence given in the proceedings by Ms Dehoon, that some of the thirteen coffee machines which they had received were regularly being moved from location to location and had in fact been placed at some point at locations identified in Exhibit 24. Indeed, in this regard, Mr Dunjey gave evidence that he wasn’t even aware that coffee machines were at certain locations on occasion, such as at Bunnings stores situated in Hudson Rd Albion and at Underwood, yet Ms Dehoon confirmed that a coffee machine had been located at both of those locations at some point. [121] Having regard to the matters I have just outlined, this claim must fail. It follows then, that any (oral) claim made by Mr Dunjey during the course of his evidence in respect to Conversion of his own property (that is, his ‘own’ bonus coffee machines) must also fail. Has Australian Finance proved it’s claim against Mr Dunjey? [122] Having carefully considered all of the evidence available, I have come to the conclusion that Australian Finance has proved its’ claim against Mr Dunjey. [123] In arriving at that conclusion, I have taken into account the following matters: • The exhibits tendered in these proceedings for consideration. • My assessment of each of the witnesses who gave evidence in these proceedings and in particular, my assessment of Mr Dunjey and Mr Castella as set out under Credibility. • The documentation signed by Mr Dunjey on 8th November 2005 (Exhibits 5 to 10 inclusive). • The terms of the lease signed by Mr Dunjey dated 15th November 2005, in particular Clause 1 Delivery of Exhibit 6. • The terms of the supply agreement as between Mr Dunjey and Speciality Vending dated 14 th November 2005. • The evidence given by Mr Dunjey at hearing, which was that he accepted he was always only ever going to receive delivery of the goods direct from Speciality Vending and that he was not aware of any other arrangements whereby he understood that Australian Finance was to be responsible for any delivery of the coffee machines to him. • The default by Mr Dunjey under the terms of the lease, insofar as he agreed that he failed to pay Australian Finance instalments of rent and charges as required under the terms of the lease as they became due and payable, but that such default had -- 28 of 36 -- 29 only resulted because of the plaintiff’s wrongdoing (paragraph 5 in his Defence and Answer to Australian Finance’s initial claim). • The evidence of Mr Castella who confirmed that the company has not been able to recover the (5) machines the subject of that default. • The pleadings filed on behalf of Mr Dunjey in defence and answer of Australian Finance’s initial claim (in particular, paragraph 5) and the subsequent counterclaim which Mr Dunjey then made by order of Robin DCJ. [124] In addition to these matters, I have also taken into account each of the matters specifically pleaded in Mr Dunjey’s counterclaim (filed 1 February 2008). Breach of Contract [125] Mr Dunjey seeks to argue that as a consequence of certain representations having been made to him by Australian Finance, through its’ employee or agent, it was an implied term of the lease that Australian Finance would not advance any money to Speciality Vending until it had confirmed with Mr Dunjey that the coffee machines, the subject of that lease, had been delivered. [126] The various representations said to have been made to Mr Dunjey on behalf of Australian Finance, by its’ servant or agent, Mr Ross Horton, are said to have occurred at a meeting between Mr Dunjey and Mr Horton on 2 November 2005 at Australian Finance’s Brisbane office and subsequently again on 15th November 2005. Mr Dunjey also relies on a further conversation which he had with Mr Horton in or about early January 2006. The pleading also reveals two conversations which are said to have occurred between Mr Dunjey and Mr Castella in or about early January 2006. [127] The difficulty that faces Mr Dunjey in respect of the conversations which he says that he had with Mr Horton is that there was simply no evidence at hearing which could support a conclusion that Mr Horton was acting in his capacity as, or within his actual or apparent authority as a servant or agent of Australian Finance, for and on its behalf. Mr Horton was not called as a witness in the proceedings and indeed, the evidence which I accept, and had no cause to reject, was that Mr Horton has never been a servant or agent of Australian Finance (or Victorian Finance as it then was) at any point. Mr Castella also confirmed in his evidence that the company has not any point ever had an office in Brisbane. Additionally, Mr Dunjey made no diary note of the conversations which he now seeks to rely. There was also other documentary evidence that did not assist Mr Dunjey. For example, Exhibit 18 is signed by Mr Arthur Morfoulis (an independent finance broker with AGM Williams). Mr Castella confirmed that it was Mr Morfoulis that had received a fee for the introduction of Mr Dunjey’s business to his company and not a person by the name of Mr Horton. Additionally, Mr Castella confirmed that the writing on the back of Exhibit 22 (which Mr Dunjey suggested was Mr Horton’s handwriting, such Exhibit having been given to him by Mr Horton during a meeting) was not handwriting which he recognised as any of the 5 employees of Australian Finance. [128] The pleading also relies upon the subsequent conversations which Mr Dunjey says he had with Mr Castella in or about early January 2006. [129] In respect of those conversations, I had no reason to reject Mr Castella’s evidence when he said he had only ever spoken to Mr Dunjey’s solicitor over the telephone on 24 th June 2006. Unlike Mr Dunjey, who had no notes of any conversations he said he -- 29 of 36 -- 30 had with Mr Castella during 2006, Mr Castella was able to refer to a file note on Mr Dunjey’s file that he referred to in court which documented the conversation he had in June 2006. It is of some significance that at the point which Mr Dunjey says he had the conversations with Mr Castella (in or about January 2006), it was well after the lease had already been settled, monies had already been advanced to Speciality Vending by Australian Finance on his behalf (Exhibit 20) and as far as Australian Finance was concerned, the transaction had been completed by the 15th November 2005. It is also of significance that Mr Castella could not find any correspondence received from Mr Dunjey regarding the matters which Mr Dunjey said he had raised with Mr Horton in November 2005 or indeed himself, in or about January 2006. That evidence is, in my mind, of some relevance particularly when considering that Mr Dunjey had written to Australian Finance to correct an error in the lease regarding the description of the coffee machines (Exhibit 7), yet did not write to confirm a significant variation to the original terms of that same lease as a consequence of the representations said to have been made to him during November 2005 by, whom he believed, was a servant or agent of Australian Finance. [130] Accordingly, I am not satisfied under those circumstances, that any variation or of original terms of the lease, can be implied as there was insufficient evidence available at hearing to support such a conclusion. [131] Nor am I satisfied that such a term may be implied, even absent the representations. [132] In order to imply a term, the principles set out in Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 must be satisfied. [133] In this regard, I have taken into account the evidence which Mr Dunjey himself gave at hearing, which was that he always understood that actual delivery of the goods was always going to be a matter between himself and the 3rd party supplier, Speciality Vending and that arrangement did not change at any stage. I have also taken into account when considering this issue, the wording of Clause 1 Delivery of the Lease, and the Supply Agreement entered into between Mr Dunjey and Speciality Vending (Exhibit 5), who was nominated as the preferred supplier by Mr Dunjey. [134] It is therefore difficult, particularly in light of that evidence, to imply that Australian Finance did in fact have a positive obligation upon it to ensure that the goods, the subject of the lease, were ultimately delivered to Mr Dunjey before any payment was made to Speciality Vending, or before any obligation fell upon Mr Dunjey to pay the rents and charges payable under that lease. [135] It follows this claim must fail. Negligence; Misleading and Deceptive Conduct (s.51A(2) and s.52 Trade Practices Act) [136] Having already determined that there was insufficient proof of the alleged representations contained in the relevant pleading, it follows that both of these claims must also fail. -- 30 of 36 -- 31 Unconscionable Conduct; Failure to act in Good Faith (s.51AC Trade Practices Act) [137] In respect of paragraph 32(b) of the pleading, Mr Dunjey seeks to assert unconscionable conduct on the part of Australian Finance in its failure to disclose that it would advance money to Speciality Finance without confirmation as to whether the machines had been delivered; by its’ seeking to enforce the lease against Mr Dunjey in those circumstances and by its having communicated with Speciality Vending as to the supply of the machines in breach of the terms of the lease. [138] I am not satisfied on the evidence available that Mr Dunjey has shown that Australian Finance undertook a positive obligation to ensure that the goods, the subject of the lease, would be delivered to him particularly in light of my findings regarding any alleged representations said to have been made. [139] Nor am I satisfied that even absent any such representations said to have been made, that Australian Finance had a positive obligation imposed upon it to ensure that the good would be delivered to him by Speciality Vending. Mr Dunjey’s own evidence (confirmed by Mr Castella) was that it was the 3rd supplier who had the responsibility of delivering the goods to Mr Dunjey and not Australian Finance. That is also consistent with the Supply Agreement (Exhibit 5) and its’ terms which Mr Dunjey had entered into with the 3rd party supplier. Additionally, Clause 1 Delivery of the lease also confirms an obligation upon Mr Dunjey to obtain delivery of the Goods. [140] Paragraph 32(b) (iii) also seek to rely on certain documentation (Exhibit 23) and (Exhibit 19) as a basis for a breach of the lease by Australian Finance. The difficulty that arises with respect to this part of the pleading is its’ failure to identify which terms of the lease are said to have been breached as a consequence (presumably the breach is in respect of any implied term sought to be included as a result of the representations said to have been made). Regardless of the deficiency in the pleading, I have in any event, examined the contents of the relevant Exhibits and I am unable to conclude that those communications (received by Australian Finance from Speciality Vending on the 8 th November 2005 and 31 st October 2005 respectively) were anything more than documentation required to be received by the lending company prior to any payment being made to the 3rd party supplier on Mr Dunjey’s behalf. Exhibit 22 in my mind supports such a conclusion. Indeed, the fax dated 8th October 2005 but sent 8th November 2005 cannot, in my mind, on any view of it, be seen to be as constituting any form of arrangement regarding supply of the goods to Mr Dunjey other than the 3rd party supplier keeping Australian Finance informed regarding where the machines were to be subsequently located, a matter of significant interest to Australian Finance. The evidence which Mr Dunjey also gave generally, that Mr Dennis was to deliver all of the (20) machines to locations for Mr Dunjey, also supports such a conclusion. Additionally, so does the fact that the Invoice issued 31st October 2005 was only rendered on that date to Australian Finance, with payment only being made in respect of it not until 15th November 2005. [141] No other evidence was given at hearing by Mr Dunjey that supported any conclusion there had been unconscionable conduct by Australian Finance insofar as Mr Dunjey was concerned. -- 31 of 36 -- 32 Failure of Consideration [142] This assertion must also fail for the reasons already stated in the aforementioned heading. The tenor of the leasing arrangement as between Mr Dunjey and Australian Finance was that the leasing company would pay the nominated 3 rd party supplier for the goods, and that Mr Dunjey was to be responsible for obtaining delivery of those goods from that 3rd party. Nor do I think it can be said that even on its’ face, Exhibit 23, particularly when regard is had to Exhibit 22, supports a conclusion that Australian Finance (having received that communication from Specialty Vending) then became responsible for the actual delivery of the goods to Mr Dunjey. Estoppel [143] Because of the reasons already given, this assertion must also fail. Orders 1. Judgment for the plaintiff against the 1st defendant. 2. Judgment for the 2nd defendant against the 1st defendant. 3. The 1st defendant’s counterclaims against the plaintiff and the 2 nd defendant be dismissed. 4. The 2nd defendant’s claim against the plaintiff be dismissed with no order as to costs. 5. The 1st defendant pay the plaintiff’s costs of and incidental to its’ action including any reserved costs on a standard basis as agreed or to be assessed. 6. The 1st defendant pay the 2nd defendant costs of and incidental to its’ action including any reserved costs on a standard basis as agreed or to be assessed. 7. Each party may have liberty to apply on the question of costs within 7 days. -- 32 of 36 -- Schedule The parties in these proceedings may more readily be identified as: plaintiff: Circuit Finance Australia 1 st defendant: Paul Anthony Dunjey 2 nd defendant: Australian Finance and Leasing 3 rd Party: Specialty Vending 2000 (in liquidation) Court Filing Date Event 18 th July 2006 Initial claim and statement of claim by plaintiff against 1 st defendant Relief sought against 1 st defendant: • $85,055.22 • Leased goods be given up to the plaintiff • Default interest pursuant to the lease agreement of $93.21 or pursuant to Practice Direction 4 of 2000 of the district court at the rate of 10.5% from 19/7/07 to date of judgment • Solicitors costs and disbursements on an indemnity basis (calculated at $3000) pursuant to lease agreement (cl 11) • Collection costs and disbursements on an indemnity basis pursuant to lease agreement (cl 11) 18 th August 2006 1 st defendant’s Notice of intention to defend against the plaintiff’s claim 25 th August 2006 plaintiff’s Reply to 1 st defendant’s defence 1 st November 2006 plaintiff’s Amended statement of claim against the 1 st defendant’s defence (leave granted by Brabazon DCJ) Relief sought against 1 st defendant: • $81,835.46 • Default interest pursuant to the lease agreement of $93.21 or pursuant to Practice Direction 4 of 2000 of the district court at the rate of 10.5% from 19/7/07 to date of judgment • Solicitors costs and disbursements on an indemnity basis (calculated at $3000) pursuant to lease agreement (cl 11) • Collection costs and disbursements on an indemnity basis pursuant to lease agreement (cl 11) 28 th March 2007 McGill DCJ dismissed application by plaintiff to strike out defence of 1st defendant 19 th April 2007 3 rd party notice issued by the 1 st defendant (leave granted by Nase DCJ) 25 th July 2007 Application heard by Judge Forde • Granted leave for 2 nd defendant to be joined in the proceedings • 2 nd defendant to file and serve a defence and any counter claim 23 rd August 2007 2 nd defendant’s Initial Notice of intention to defend and counter-claim against plaintiff, 1 st defendant and 3 rd party. Relief sought against plaintiff: • $64,785.33 as damages for conversion Or alternatively • $25,000 as damages for conversion • Interest -- 33 of 36 -- 34 • costs Relief sought against 1 st defendant: • $64,785.33 as a liquidated debt • $64,785.33 for breach of contract • Interest • Costs Relief sought against 3 rd Party: • $64,785.33 as damages for negligence, breach of contract and breach of fiduciary duty Or alternatively • $25,000 as damages for negligence, breach of contract and breach of fiduciary duty • Interest • costs 5 th September 2007 1 st defendant’s notice of intention to defend and answer against counter claim of 2 nd defendant 7 th September 2007 plaintiff’s Reply and answer to counter-claim of 2nd defendant 15 th October 2007 Trial listed before Judge Tutt • Application for adjournment by 1 st defendant. 1 st defendant had lost the services of his legal representatives the Thursday before trial • trial dates vacated • leave also granted for 2nd defendant to amend its defence and counter claim • leave granted for plaintiff to reply to 2 nd defendant’s counter claim • directed 3rd party to file and serve reply to 2 nd defendant’s counter claim and serve list of documents • all parties to participate in mediation on 19th November 2007 16 th October 2007 2 nd defendant’s Amended defence and counter-claim against plaintiff, 1 st defendant and 3 rd party Relief sought from the court: • declaration that the equitable charge created by the lease agreement of the 2 nd defendant is first in time and takes priority over the plaintiff’s charge Relief sought against plaintiff: • order that the plaintiff consent to the registration of a mortgage in favour of the 2nd defendant over the 1 st defendant property • order that the plaintiff do all things necessary for the 2nd defendant to register that mortgage • $64,785.33 as damages for conversion Or alternatively • $25,000 as damages for conversion • Interest • costs Relief sought against 1 st defendant: • $64,785.33 as a liquidated debt • $64,785.33 for breach of contract • Interest • Costs -- 34 of 36 -- 35 Relief sought against 3 rd Party: • $64,785.33 as damages for negligence, breach of contract and breach of fiduciary duty Or alternatively • $25,000 as damages for negligence, breach of contract and breach of fiduciary duty • Interest • costs 30 th October 2007 plaintiff’s Amended Reply to defence and answer to counterclaim of 2 nd defendant. 19 th November 2007 Mediation takes place. No resolution 23 rd January 2008 3 rd Party (Specialty Vending) was wound up by the Supreme Court 31 st January 2008 Application heard by Judge Robin • Consent order allowing the 2 nd defendant summary judgment with respect to their claim against the 1 st defendant for: - amount claimed of $64,785.33 - costs and interests of $7,965.83 - together with an additional amount of $924.80 - costs of the claim on the standard basis, as assessed or agreed. • granted leave for the 1 st defendant to file a counter claim against the 2 nd defendant 1 st February 2008 1 st defendant’s counter claim against the 2 nd defendant Relief sought against 2 nd defendant: • damages for breach of contract in the amount claimed by the 2nd defendant as against the 1 st defendant Or alternatively • damages for negligence in the amount claimed by the 2 nd defendant as against the 1 st defendant Or alternatively • damages pursuant to s82 of the Trade Practice Act in the amount claimed by the 2 nd defendant as against the 1 st defendant • an order pursuant to s87 of the Trade Practice Act setting aside or declaring the Australian Finance Lease with the 1st defendant unenforceable Or alternatively • a declaration that the Australian Finance lease is void • costs 7 th February 2008 2 nd defendant’s Initial Answer to counter claim of 1st defendant 11 th February 2008 Mention listed before Judge Ryrie. 1 st defendant advises that he is no longer represented by Macfie Curlewis Spiro as at Thursday 7th of February. However, 1 st defendant had spoken to Stephens & Tozer who have not yet received the whole file. 18 th February 2008 Trial listed before Judge Ryrie (4 days) • Application for adjournment of trial by 1 st defendant. Opposed by plaintiff and 2 nd defendant. Application refused as unlikely 1 st defendant would have any representation at trial due to lack -- 35 of 36 -- 36 of funding even if adjournment granted. Trial commenced. • Leave granted for 2 nd defendant to amend answer to counter claim by 1 st defendant. 5 th June 2008 1 st defendant files Notice that he is no longer represented by Stephens & Tozer Solicitors and now acting in person 10 th June 2008 • Trial resumed for further 4 day hearing • Leave granted to 1 st defendant to file amended defence and counter claim against the plaintiff’s amended claim. -- 36 of 36 --