Supreme Court New South Wales

• Medium Neutral Citation: Chidiac v Bhatt, Vaidya and Rosybarb Pty Ltd [2014] NSWSC 1253
• Hearing dates: 1 - 3 and 24 - 25 July 2014
• Decision date: 12 September 2014
• Jurisdiction: Equity Division - Corporations List
• Before: Black J

Decision

Parties to be heard as to form of orders for rectification of share register and register of directors and for repayment of amounts charged to credit card, as to amount of damages recoverable against first defendant and as to costs.

• Catchwords: CORPORATIONS - membership, rights and remedies - application for rectification of share register under Corporations Act 2001 (Cth) s 175 - whether purported transfers of ordinary shares in company was invalid - whether plaintiff was validly removed as director.; CONTRACT - existence of contract - whether plaintiff and first defendant entered into oral contract in respect of transfer of shares and vehicle for payments to third party - breach - whether established that first defendant breached contract.; RESTITUTION - money lent - where first defendant acknowledges that relevant monies constituted a loan - whether established that first defendant has repaid relevant amounts to discharge debt liability.; DAMAGES - where plaintiff is party to contract conferring benefit to third party - where breach of contract in respect of non-delivery of vehicle established - quantification - whether plaintiff can recover substantive damages - whether plaintiff has suffered loss or damage arising from breach - where plaintiff claims damages quantified in amount of payments made in performance of contract - where first defendant has partly performed contract - whether total failure of consideration provided by first defendant established.
• Legislation Cited: - Corporations Act 2001 (Cth) ss 175, 180, 198E, 201F, 201G, 201H, 1071B, 1274B(2); - Civil Procedure Act 2005 (NSW) s 98; - Uniform Civil Procedure Rules 2005 (NSW) r 42
• Cases Cited: - Armagas Ltd v Mundogas SA [1985] 1 Ll R 1; - Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344; - Bell v Burton (1993) 12 ACSR 325; - Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39; - Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40; - Coulls v Bagot's Executor & Trustee Co Ltd [1967] HCA 3; (1967) 119 CLR 460; - Craig v Silverbrook [2013] NSWSC 1687; - Foxeden Pty Ltd v IOOF Building Society Ltd [2003] VSC 356; - Grant v John Grant & Sons Pty Ltd [1950] HCA 54; (1950) 82 CLR 1; - Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60; - Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64; (1984) 156 CLR 41; - John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1; - Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674; - Mercedes Holdings Pty Ltd v Waters (No 3) [2011] FCA 236; - Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1996) 20 ACSR 553; - Re Mogul Stud Pty Ltd [2012] NSWSC 1639; - Rosebanner Pty Ltd v Energy Australia [2009] NSWSC 43; (2009) 223 FLR 460; - Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [1924] 20 LI L Rep 140; - State of New South Wales v Hunt [2014] NSWCA 47; - Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107; - Wilson v Darling Island Stevedoring & Lighterage Co Ltd [1956] HCA 8; (1956) 95 CLR 43; - Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363; - VPlus Holdings Pty Ltd v Bank of Western Australia Ltd [2012] NSWSC 1327; (2012) 91 ACSR 545; - Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560
• Texts Cited: - Carter on Contract; - K Mason, JW Carter & GJ Tolhurst, Mason & Carter's Restitution Law in Australia (2nd ed 2008, LexisNexis Butterworths)
• Category: Principal judgment
• Parties: Joseph Chidiac (Plaintiff); Prashant Bhatt (First Defendant); Gayatri Vaidya (Second Defendant); Rosybarb Pty Ltd (Third Defendant)
• Representation: Counsel: J P Rose (Plaintiff); P Bhatt (in person) (First Defendant); G Vaidya (in person) (Second Defendant); Solicitors: Stevens Cottee Lawyers (Plaintiff); P Bhatt (in person) (First Defendant); G Vaidya (in person) (Second Defendant)
• File Number(s): 2013/292266

Judgment

1 These proceedings were initially brought by the Plaintiff, Mr Joseph Chidiac, against Mr Prashant Bhatt, Ms Gayatri Vaidya and Rosybarb Pty Ltd ("Rosybarb") in the Local Court of New South Wales and subsequently transferred to this Court. The First Defendant, Mr Bhatt, at one time provided transport, as a taxi driver, to Mr Chidiac and other disabled members of Wheelchair Rugby League Australia ("WRLA"). The Second Defendant, Ms Vaidya, is Mr Bhatt's wife and it is common ground she was a director of the Third Defendant, Rosybarb, from 2 June 2011 until 12 April 2012. Rosybarb is an accredited taxi operator and Ms Vaidya is also the nominated individual responsible for the operation of taxis associated with that company. One taxi is presently registered to and operated by Rosybarb, although the motor vehicle which is operated as that taxi is owned by a third party, Mr Hastas.

2 It is common ground, as I will note below, that Mr Chidiac acquired all the shares in Rosybarb and was appointed a director of that company on or about 9 April 2012. Mr Chidiac contends that he continues to own those shares and remains a director of the company, although that is in dispute in the proceedings. The shares in Rosybarb were purportedly transferred to Mr Hastas and he was purportedly appointed a director of Rosybarb on 20 September 2012. Mr Hastas otherwise had a limited role in the relevant events, to which I will refer below. The shares in Rosybarb were subsequently purportedly transferred to Mr Bhatt in November 2012 and he was purportedly appointed the sole director of the company.

3 Mr Chidiac was represented by Counsel and solicitors in the proceedings and relies on his affidavits dated 20 September 2013 and 14 March 2014. Mr Bhatt and Ms Vaidya represented themselves in the proceedings, and were assisted for part of their hearing by their daughter, who is a university student although she is not studying law. They relied on Mr Bhatt's affidavit dated 11 December 2013 and Ms Vaidya's affidavit dated 20 January 2014. Mr Bhatt frequently referred to matters in the course of his cross-examination that had not been addressed in his affidavit evidence. I draw no adverse inference from that matter, where Mr Bhatt and Ms Vaidya were self-represented and would not necessarily have recognised the extent of the relevant evidence in preparing their affidavits.

4 Ms Vaidya accepted in cross-examination that she had read Mr Bhatt's affidavit before preparing her own affidavit, although her evidence was that she did not use Mr Bhatt's affidavit in preparing her affidavit (T314). However, it is plain that significant portions of Ms Vaidya's affidavit were copied from Mr Bhatt's affidavit. For example, there is a striking and otherwise inexplicable correspondence (with minor changes of language) between paragraphs 23-29 of Ms Vaidya's affidavit and paragraphs 59-66 of Mr Bhatt's affidavit; paragraphs 30-31 of Ms Vaidya's affidavit and paragraphs 67-68 of Mr Bhatt's affidavit; paragraphs 35-37 of Ms Vaidya's affidavit and paragraphs 75 and 77 of Mr Bhatt's affidavit; paragraphs 40 and 42 of Ms Vaidya's affidavit and paragraphs 84-86 of Mr Bhatt's affidavit; paragraphs 47-49 of Ms Vaidya's affidavit and paragraphs 98-100 of Mr Bhatt's affidavit; and paragraphs 51-52 of Ms Vaidya's affidavit and paragraphs 102-103 of Mr Bhatt's affidavit. It seems to me clear that Ms Vaidya (or, possibly, her daughter who had assisted Mr Bhatt and Ms Vaidya in preparing their affidavits) had copied passages dealing with discussions between Mr Bhatt and Ms Vaidya in respect of Rosybarb from Mr Bhatt's affidavit and had also copied Mr Bhatt's evidence as to a visit by Mr Bhatt and Ms Vaidya to Mr Chidiac's home in early April 2012, in connection with the transfer of the shares in Rosybarb from Ms Vaidya to Mr Chidiac.

5 The difficulties which arise from the copying of one witness' affidavit by another witness have been noted in several judgments, although the courts have taken the view that difficulties of this kind at least require care before accepting the evidence of one or other of the affected witnesses: Macquarie Developments Pty Ltd v Forrester [2005] NSWSC 674 at [89]-[91]; Rosebanner Pty Ltd v Energy Australia [2009] NSWSC 43; (2009) 223 FLR 460 at [324], [326]; Celermajer Holdings Pty Ltd v Kopas [2011] NSWSC 40 at [183]-[189]. In the present case, I have not accepted Mr Bhatt's evidence as to significant matters and Ms Vaidya's adopting it does not assist Mr Bhatt and Ms Vaidya, quite apart from any issues arising from the process by which their affidavits were prepared.

6 There are also difficulties to which I will refer below in respect of aspects of the evidence given by each of Mr Chidiac. I have been conscious of the importance of the credit of witnesses in cases where a trial judge is faced with a choice between irreconcilable accounts: Craig v Silverbrook [2013] NSWSC 1687 at [142]. I have had regard to the fact that the credibility of a witness and his or her veracity may be tested by reference to the objective facts proved independently of the testimony given, in particular by reference to the documents in the case, by paying particular regard to his or her motives and to the overall probabilities: Armagas Ltd v Mundogas SA [1985] 1 Ll R 1 at 57. I have also had regard to Atkin LJ's observation in Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana") [1924] 20 LI L Rep 140 at 152, recently cited by Sackar J in Craig v Silverbrook above at [141], that:

"an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."

A similar view was expressed by Keane JA (as his Honour then was) in Camden v McKenzie [2007] QCA 136; [2008] 1 Qd R 39 at [34], and that decision was recently cited with approval by Leeming JA (with whom Barrett JA and Tobias AJA agreed) in State of New South Wales v Hunt [2014] NSWCA 47 at [56].

The background facts

7 A number of the background facts to the application are not contentious, although other matters were substantially disputed. Mr Chidiac met Mr Bhatt and Ms Vaidya in late 2010 or early 2011, when Mr Bhatt was driving a wheelchair accessible taxi and transported Mr Chidiac and other members of WRLA (Chidiac 23.9.13 [7]-[8]).

8 Mr Chidiac's evidence is that he and Mr Bhatt had several conversations in relation to jointly expanding Mr Bhatt's taxi business commencing from January 2012 (Chidiac 23.9.13 [20]-[29]). Mr Chidiac's evidence is that Mr Bhatt proposed that Mr Chidiac would be appointed as the director of Rosybarb; would finance vehicles to be owned by Rosybarb; and Mr Bhatt would manage the vehicles and they would share the profits. He gives evidence of a conversation with Mr Bhatt, in late January 2012, in which Mr Bhatt suggested they work together, on the basis that persons associated with WLRA needed transport and Mr Bhatt had knowledge of the taxi business. Mr Chidiac gives evidence of further conversations with Mr Bhatt, in which Mr Bhatt offered a transfer of the shares in Rosybarb which were "owned by a lady" (in fact, Mr Bhatt's wife, Ms Vaidya) and explained the manner in which a taxi business generated profit and proposed that Mr Chidiac could find finance to get taxis on the road and that:

"We can manage the taxis because we are operators. You be the director. I will manage the cars and you won't need to do anything, just concentrate on your organisation and we can share the company's profits. Keep referring the members to me and we will expand the company." (Chidiac 23.9.13 [28])

9 Mr Chidiac's evidence is that, in early February 2012, Mr Bhatt put a proposal to him that, if he paid $60,000 by instalments to a third party, Aquamax International ("AMI"), on Mr Bhatt's behalf, Mr Bhatt would transfer the ownership of Rosybarb to Mr Chidiac and would transfer a Toyota HiAce bus to Rosybarb, on the basis that Mr Bhatt would manage that company and Mr Chidiac and Mr Bhatt would share its profits on an equal basis, instead of Mr Bhatt being paid a salary (Chidiac 23.9.13 [41]-[45]). Mr Chidiac also gives evidence of a conversation in mid-February 2012 with Mr Bhatt to the following effect:

Bhatt: "You know I have in my control the company, Rosybarb with a license [sic] for three taxis. The company doesn't have any taxis now. I can transfer the company to you and we can start the taxi business. If you pay [AMI] the money I can do a deal with you about Rosybarb."

Chidiac: "What is your offer?"

Bhatt: "I will transfer Rosybarb and the Toyota bus for $60,000.00."

Bhatt: "I will manage the company and we can share the profit 50/50." (Chidiac 23.9.13 [41]-[42])

Mr Chidiac accepted in cross-examination that his understanding from these conversations was that Mr Bhatt and Ms Vaidya would continue to operate the taxis or future taxis of the business (T88) and that his understanding was that Mr Bhatt was to be the operator and the day-to-day running of the business was to be left to in Mr Bhatt's hands with the assistance of Ms Vaidya (T90).

10 Mr Bhatt in turn accepted in cross-examination that there was a discussion with Mr Chidiac about funding $60,000 for AMI, in which Mr Chidiac said he could not pay that amount in one payment but could pay it by instalments by his credit card over some months (T245). Mr Bhatt also accepted the substance of Mr Chidiac's evidence as to the first conversation in respect of Rosybarb in cross-examination (T252) and accepted that he had suggested that he could be involved in a taxi business with Mr Chidiac (T253-255), that Mr Chidiac would be the director of Rosybarb and that Mr Bhatt would manage the taxis and that there may have been a reference to sharing the company's profits in that conversation (T256).

11 Mr Chidiac gives evidence of a further conversation that identified the Toyota HiAce bus and that Mr Chidiac estimated that bus was worth at least $80,000. Mr Chidiac's evidence is that there was further discussion concerning Mr Chidiac paying the money to AMI by instalments. Mr Chidiac's evidence is that Mr Bhatt also said:

Bhatt: "When you pay all the money I will transfer the bus to Rosybarb." (Chidiac 23.9.13 [45])

Mr Bhatt denied, in his affidavit evidence, that he had promised or agreed to transfer or give away the HiAce bus that he said was "not my vehicle" (Bhatt 11.12.13 [13]). On Mr Chidiac's account of that conversation, the relevant arrangement was for the transfer of the bus to Rosybarb and not to Mr Chidiac personally. This has considerable significance for Mr Chidiac's claim in damages in contract to which I will refer below. I will also deal further with the evidence as to AMI and the HiAce bus below.

12 On 20 March 2012, the Workers Compensation Nominal Insurer filed a creditor's petition seeking the bankruptcy of Mr Bhatt (Chidiac 23.9.13, Annexure "R") which was later set aside.

13 The transfer of shares in Rosybarb from Ms Vaidya to Mr Chidiac took place in April 2012 and he was appointed as a director of Rosybarb in the circumstances to which I will refer below.

14 On 24 June 2012, Mr Hastas took out a loan to acquire a Toyota Prius in his name which was then registered to Rosybarb on 25 June 2012 (Chidiac 23.9.13, Annexures "P"-"Q"; Vaidya 20.1.14, "Annexure "N", Hastas 11.2.14 [9], Annexure "A"). I accept Mr Hastas' evidence that his involvement was prompted by his wish to assist with the purchase of a vehicle that could carry disabled persons so that they could access wheelchair sports (T292). His evidence was that he knew nothing about companies, directorships or shares, and that evidence is consistent with his willingness to be appointed as a director of Rosybarb in the circumstances to which I refer below (T294).

15 The creditor's petition in respect of Mr Bhatt was dismissed in August 2012. Mr Chidiac submits the need for Mr Bhatt to maintain the shares in Rosybarb in Mr Chidiac's name ceased at this point. It is not necessary to address that contention given the findings that I reach on other grounds below, although that proposition is inconsistent with the fact that the shares were subsequently transferred to Ms Hastas rather than directly to Mr Bhatt.

16 A further purported transfer of the shares in Rosybarb from Mr Chidiac to Mr Hastas took place in September 2012 and Mr Hastas was purportedly appointed as director of Rosybarb in place of Mr Chidiac in circumstances to which I refer below. A further purported transfer of the shares in Rosybarb from Mr Hastas to Mr Bhatt took place in November 2012 and Mr Bhatt was purportedly appointed as director of Rosybarb in circumstances to which I refer below.

17 Mr Chidiac and Mr Bhatt had fallen out by at least November 2012 when Mr Chidiac texted Mr Bhatt as follows:

"Prashant

I placed trust in you. I opened many doors that included jobs and assistance with documentation for the Ministry/ATS etc.

You have chosen to deal with me in a disrespectful and very dirty way.

Since you have chosen that stabbing me in the back is the way you want to deal with me you have left me with no other option but to deal with you differently.

I have asked my solicitor to prepare a complaint and lodge it with the Australian Securities and Investments Commission regarding your conduct concerning [Rosybarb].

Please note: James, Andrew and Chris [who were members of WRLA] will no longer require your service. Please do not contact them and cease from lodging any [taxi travel] vouchers referenced to them. Lodging them would be regarded as theft if queried." (Ex D1)

Dealings with AMI

18 It will be convenient now to address two factual issues that were in controversy between the parties. The first issue arises as to Mr Chidiac's and Mr Bhatt's dealings with AMI.

19 AMI is based in Homebush and sells water filtration devices and other water-related equipment. Mr Chidiac appears to have first had contact with AMI when his father purchased water cartridges from AMI at a stand in a shopping centre, when Mr Chidiac was present. Mr Chidiac's evidence is that he was contacted in late January 2012 by a director of AMI, Mr Dogra, in respect of a proposal for AMI to sponsor WRLA. Mr Chidiac's evidence is that Mr Bhatt drove him to a meeting with Mr Dogra about the potential sponsorship and that Mr Bhatt was invited into that meeting by Mr Dogra (Chidiac 23.9.13 [33]-[38]). That sponsorship did not proceed, but Mr Bhatt, Mr Chidiac or both of them were subsequently involved in arrangements with AMI. Mr Chidiac's evidence is that, in late January 2012, Mr Bhatt advised him that he had agreed to buy a distributorship from AMI (Chidiac 23.9.13 [39]) and proposed that disabled persons could be trained to telemarket AMI's products and referred to Mr Bhatt paying "$20,000 plus stock of about $35,000-$40,000 for a distributorship".

20 Mr Bhatt and Ms Vaidya submitted that Mr Chidiac, rather than Mr Bhatt, was party to the relevant dealings with AMI; that Mr Bhatt did not enter a distributorship agreement with AMI; and that Mr Bhatt did not ask Mr Chidiac to pay AMI on his behalf. Mr Bhatt's affidavit evidence is that he and Mr Chidiac attended a first meeting with AMI at which there was discussion of a sponsorship proposal in respect of WRLA that did not proceed (Bhatt 11.12.13 [21]-[27]) and he accepted in cross-examination that that meeting concluded without any agreement that AMI would make a donation to WRLA (T228).

21 Mr Bhatt's evidence is that he attended a second meeting with Mr Dogra which was not attended by Mr Chidiac and that, at that further meeting, Mr Dogra outlined a proposal to Mr Bhatt about selling AMI products to members of WRLA (T229) and that Mr Bhatt signed a document at that meeting that he would not disclose the price paid for a distributorship (T230). There was discussion, whether at that meeting or later, about Mr Bhatt's company buying a 25% interest in AMI and Mr Bhatt later signed a heads of agreement with AMI to purchase a 25% interest in AMI (T231). The purchase price referred to by Mr Bhatt in cross-examination was $350,000 at one point and $250,000 at another, but little may turn on the difference between those figures where neither amount was within the reach of Mr Bhatt or, indeed, Mr Chidiac. Mr Bhatt's evidence in cross-examination was that "everybody knows I don't have the money" and that it was Mr Chidiac who was going to purchase that interest in AMI (T231). Mr Chidiac responds, and I accept, that the suggestion that he could have acquired an interest in AMI at that price is inconsistent with the evidence that he was not approved for finance to purchase a car for Rosybarb; however, Mr Bhatt equally was not in a position to fund the acquisition of such an interest.

22 Mr Bhatt's evidence is that he relayed Mr Dogra's proposal to Mr Chidiac, who expressed doubt as to members' interest in it. Mr Bhatt's evidence is that:

"Mr Chidiac offered a counter-proposal. He asked me to find if AMI would be interested in financing three commuter buses, valued at $90,000 each. If they would be open to this then there would be [sic] chance of Mr Chidiac helping them." (Bhatt 11.2.13 [33])

Mr Bhatt's evidence (Bhatt 11.2.13 [34]) is that he went back to AMI with Mr Chidiac's proposal and:

"would spend significant amounts of time going back and forth between AMI and Mr Chidiac."

23 Mr Bhatt accepted in cross-examination that he was then negotiating with AMI to sell their products to members of the WRLA. He was not prepared to accept in cross-examination that this was in the nature of a "distributorship", although he had used that term in his affidavit evidence (T232). Mr Bhatt also accepted that he had entered an arrangement in late January 2012 with AMI which contemplated that AMI would sell their products to members of the WRLA at a distributorship price (T234). Mr Bhatt also accepted in cross-examination that Rosybarb was acquiring stock from AMI up to March 2012 and that Mr Bhatt was arranging the purchase of that stock, at a time that Ms Vaidya was the sole director and shareholder of Rosybarb and prior to Mr Chidiac's involvement with that company (T234). Mr Bhatt later suggested in cross-examination that the reference to a distributorship from AMI in his affidavit evidence was a "mistake" (T238); however, he also accepted in cross-examination that by March 2012, there was a distributorship with AMI and that stock processing had commenced by March 2012 (T246). There is other evidence that Mr Bhatt had developed a business relationship with AMI. Mr Bhatt accepted in cross-examination that he was a signatory of a bank account held by AMI and that AMI had also provided him with a mobile phone SIM card at some point (T237) that was for his use to call people "for the business" (T238). It appears that Mr Bhatt also arranged to acquire stock from AMI, which was invoiced to Rosybarb.

24 Mr Bhatt's evidence is that Mr Chidiac (as distinct from Mr Bhatt) then entered into an arrangement by which he would invest in a distributorship with AMI for $60,000 and AMI would in return finance three commuter buses, and that Mr Chidiac agreed to fund that money for that purpose (Bhatt 11.12.13 [41]-[42]). I do not accept that evidence. The proposal for the financing of vehicles by AMI has the characteristics of Mr Bhatt's and Ms Vaidya's dealings with other third parties, including Telcom (to which I will refer below) and later Mr Hastas in respect of the financing of vehicles and it seems to me highly unlikely that Mr Chidiac would develop a proposal of that kind without Mr Bhatt's involvement. That arrangement failed when applications lodged by the three directors of AMI for finance for taxis to be operated by Rosybarb were rejected. Mr Bhatt and Ms Vaidya submit that the relationship between Mr Bhatt, Rosybarb and AMI ceased when that occurred and that Mr Bhatt otherwise communicated with AMI "under the guidance and supervision of Mr Chidiac" and did not receive any monetary gain from AMI. I also do not accept that submission, although, as I will note below, Mr Chidiac had at least some involvement with Mr Bhatt in those dealings.

25 Mr Chidiac's evidence is that Mr Bhatt later presented a proposal that relied on the sale of AMI products to WRLA members to the WRLA board on 2 February 2012 and the board declined that proposal. Mr Chidiac's evidence is that Mr Bhatt said words at that board meeting to the effect of:

Bhatt: "I am in business with [AMI] and I think [WRLA] can make some money by selling Aquamax products to its members and supporters. [WRLA] can receive a percentage of every sale, like a commission." (Chidiac 14.3.14 [30])

26 Mr Bhatt's evidence, which Mr Chidiac denies, is that he presented to the board of WRLA about "an arrangement to gather funds through the use of the Taxi Subsidy Scheme" (Bhatt 11.12.13 [35]). Mr Bhatt described the substance of that proposal as that each of the 90 members of the WRLA would make 10 trips by taxi a week, totalling 900 trips a week, and that Mr Bhatt would return an amount of each taxi subsidy docket (which would, of course, have been funded by the state) to WRLA which would then be able to fund its athletes' travel to a world wheelchair tournament in London. I am satisfied that that proposal, which appears to be both bizarre and potentially improper, was not put to WRLA's board.

27 Mr Bhatt's evidence in that regard is inconsistent with evidence of an apparently independent board member, Mr Wynters, and a contemporaneous email sent by Mr Wynters. Mr Wynters' affidavit evidence was that, at the meeting of the WRLA board held on 2 February 2013:

"Mr Bhatt said he was an agent for [AMI] and proposed an arrangement which involved selling Aquamax products to members of the association and the association receiving a commission or fee. ... Mr Bhatt was very vague and he did not have any papers to give to the Board."

Mr Wynters' evidence in cross-examination was that Mr Bhatt's presentation to the WRLA Board related to the use of Aquamax products to raise funds for wheelchair rugby league (T196-197). Mr Wynters did not recall any proposal for increasing taxi trips by members of the WRLA having been raised at that meeting (T197) and did not accept that Mr Bhatt had spoken to the WRLA board about transport arrangements for athletes or a rebate of $5 on every trip that athletes travelled with Mr Bhatt's company or that Mr Bhatt could thereby generate more than $90,000 of funding for the WRLA prior to its participation in the competition in London (T205). Mr Wynters was an impressive witness with no obvious interest in the outcome of the proceedings and I accept his evidence.

28 Mr Chidiac's evidence as to the nature of the matters discussed at that meeting was also supported, and Mr Bhatt's evidence was inconsistent with, a contemporaneous email sent by Mr Wynters on 3 February 2012, which made clear that the conversation at that board meeting related to a proposal put by Mr Bhatt in respect of AMI products rather than to any matters concerning transport or taxi subsidies. By that email (Chidiac 14.3.14, Annexure "C"), Mr Wynters had advised Mr Chidiac:

"I am sure that [Mr Bhatt] will be in touch with you today to find out what the board decided. As discussed, we need him to provide a detailed formal written proposal clearly outlining his fund raising plans based on the product Aquamax. He needs to explain his marketing strategies and what his projected sales for Aquamax are. Whilst we appreciate his offer to assist his proposal needs to also detail how he proposes to be rewarded for his efforts. On submission of his proposal, the board will vote on whether to accept or decline his offer. If we accept, we would need to draft an agreement that would authorise him to act on the associations [sic] behalf under the guidance of a Fund Raising Committee. He also needs to be aware that we would also need to do standard reference checks to ensure that the association is not compromised by his involvement."

It appears that the minutes of that board meeting have been lost. I do not draw any inference adverse to Mr Chidiac from that matter, particularly where the content of the board meeting is readily apparent from Mr Wynters' email sent immediately after it had occurred.

29 There is further evidence as to the existence of a relationship between Mr Bhatt and AMI. The affidavit evidence of another member of WRLA, Mr Quilla, was that Mr Bhatt told him, while transporting him to wheelchair rugby league games, that Mr Bhatt was:

"in a business selling water filtration products and you could make some money selling these by telemarketing" (Quilla 4.3.14 [5]).

Mr Quilla also gave evidence that Mr Bhatt had arranged for him and several other members of WRLA to attend AMI's office for training in selling AMI's products. He gives evidence that Mr Chidiac came with them on the first occasion to give support. Mr Quilla was cross-examined by Mr Bhatt as to dealings with taxi subsidy dockets and had a striking lack of recollection in that regard, but I accept his evidence as to his conversations with Mr Bhatt in respect of AMI which is consistent with the other evidence to which I have referred. The evidence of another member of WRLA, Mr Hasna, in cross-examination was that Mr Bhatt had introduced him to AMI, and suggested that he could work with AMI to sell "stuff" (T209) and that Mr Hasna attended for training at AMI two or three times and that Mr Bhatt drove him there in a taxi between April and May 2012 (T210). Mr Hasna's evidence was also that Mr Chidiac attended the training to support him (T213).

30 Several payments were thereafter made to AMI and funded by Mr Chidiac. A $12,000 payment to AMI was made on 16 February 2012 from Mr Chidiac's credit card (Chidiac 23.9.13 [46]-[47], Annexure "G", T174). Mr Chidiac's evidence is that, also in mid-February 2012, Mr Bhatt proposed that Mr Chidiac pay the deposit for a Toyota Yaris car which was to be purchased for Mr Dogra (who was, as I noted above, a director of AMI) instead of paying an instalment towards the purchase price payable by Mr Bhatt for the AMI distributorship. Mr Chidiac agreed to that proposal and then went further by giving Mr Bhatt his credit card and its personal identification number on the basis that Mr Bhatt could put the deposit for the vehicle on that credit card (Chidiac 23.9.13 [48]-[49]). There is no doubt that Mr Chidiac in fact gave Mr Bhatt his credit card and its access pin, because it is common ground that Mr Bhatt thereafter used that credit card for a number of other transactions. Mr Bhatt accepted in cross-examination that he asked Mr Chidiac to pay for a vehicle for Mr Dogra instead of an instalment payable to AMI as part of the deal with AMI (T248). Mr Bhatt also accepted that Mr Chidiac then said that he could use Mr Chidiac's credit card for the deposit for the car for Mr Dogra (T248).

31 A further $10,000 was withdrawn in cash from Mr Chidiac's bank account, in Mr Bhatt's presence, on 22 February 2012 and that amount was used for a payment towards the purchase of the car to be provided to Mr Dogra and a cash payment by Mr Bhatt to AMI to assist with its rent (Chidiac 23.9.13 [50]-[53]; T174-176). Mr Bhatt accepted that Mr Chidiac was not "really happy about buying the car for cash" and wanted a receipt and that Mr Bhatt arranged for the issue of the receipt in Rosybarb's name (T176). That course is consistent with at least an anticipation that Mr Chidiac was to acquire an interest in Rosybarb. An invoice issued by a car dealer dated 1 March 2012 in turn records the purchase of the Toyota Yaris by Rosybarb, for a price of $19,500 inclusive of GST, and records that the vehicle was to be delivered to Mr Dogra (Chidiac 23.9.13 [56], Annexure "E"). A further amount of $13,000 was charged, apparently by Mr Bhatt, to Mr Chidiac's credit card at the car dealer on 14 March 2012 (Chidiac 23.9.13 [54], Annexure "M").

32 Two further instalments were paid to AMI by $5,000 on another credit card of Mr Chidiac on 7 June 2012 (Chidiac 23.9.13 [91]-[93], Annexure "N") and $15,000 on a credit card of Mr Chidiac on 15 June 2012 (Chidiac 23.9.13 [95]-[98], Annexure "O"). Mr Bhatt denied that he knew that Mr Chidiac made the further payment of $5,000 to AMI on 7 June, at the time that it was made, and claimed that he had been "cut off" from the arrangements between Mr Chidiac and AMI by that time (T180).

33 There is also evidence that Mr Chidiac had an involvement in dealings with Mr Bhatt and AMI. Mr Chidiac accepted that he stored AMI products for Mr Bhatt at his parent's house from late February 2012 until the end of March 2012 when Mr Bhatt removed that stock (Chidiac 14.3.14 [38]-[39]). Mr Chidiac's evidence in cross-examination was that he did not recall a number of text messages sent from his mobile phone that appear to indicate involvement on his part with the detail of the AMI products (T50-52). In particular, a text message sent from Mr Chidiac's mobile phone to Mr Bhatt on 1 March 2012 at 5.21pm was to the effect that:

"The document you left with me has an item with the wrong product code. Based on what I could establish we have stock to the value of $17,802.02. This inc gst." (Ex D1)

A further text message from Mr Chidiac to Mr Bhatt at 5.58pm read "$20,305.78". I have difficulty in accepting that Mr Chidiac's evidence that he simply does not recall these matters, where his affidavit displays an apparently clear recollection of other communications as to other matters in issue. Mr Chidiac's involvement in verification of product codes and the value of goods acquired from AMI seems to me indicate a closer involvement with AMI than merely storing products for Mr Bhatt and is inconsistent with Mr Chidiac's evidence in this regard. Mr Chidiac's evidence in his second affidavit that he had not received stock or product from AMI, other than as samples prior to discussions of the proposed sponsorship of WRLA, is also inconsistent with the level of involvement with these products disclosed by these text messages. Mr Bhatt also relied on invoices that included the words "Joe", presumably a reference to Mr Chidiac, and "Rosybarb" to submit that the arrangements involving AMI were with Mr Chidiac rather than Mr Bhatt. The appearance of Mr Chidiac's name on three tax invoices from AMI may also be consistent with a closer involvement with AMI than he acknowledged.

34 While I do not accept Mr Chidiac's evidence that he had as limited an involvement with AMI as he claims, I also do not accept Mr Bhatt's attempt to present himself as a mere intermediary between Mr Chidiac and AMI's directors, which did not explain why Mr Bhatt would devote substantial time and effort to such a role. For these reasons, I do not accept that the payments made by Mr Chidiac to AMI, or to the motor dealership in respect of the purchase of a vehicle for AMI's director, were made solely on Mr Chidiac's behalf. I accept that they were made under some agreement with Mr Bhatt. As I will note below, it seems to me that agreement included at least the terms which Mr Chidiac pleaded, although it may also have anticipated the financing of the purchase of vehicles by Mr Chidiac or other members of WRLA and, possibly, dealings with taxi subsidy vouchers.

The HiAce bus

35 As at October 2011, the Toyota HiAce bus which was the subject of the conversations to which Mr Chidiac referred was registered in the name of a company associated with a third party, Telcom Pty Ltd (Chidiac 23.9.13, Annexure "A"). A document dated 21 October 2011 headed "Memorandum of Agreement" (Ex P7) between a director of Telcom and Ms Vaidya (as a director of Krisneil Pty Ltd ("Krisneil"), another company associated with her) recorded that Krisneil had acquired the Toyota HiAce bus on 21 October 2011 through the assistance of Telcom which had "stepped forward securing a loan for the purchase of the new vehicles under [Telcom's] name" and that, from 21 October 2011, Krisneil:

"would be solely responsible for all the repayments and any kind of the liability arise due to the above mentioned Toyota Hiace bus or its loan".

An invoice dated 21 October 2011 from Telcom to Krisneil records the sale of the Toyota HiAce bus to Krisneil (Ex P6). The initial purchase of that bus by Telcom would be consistent with the approach that Mr Bhatt and Ms Vaidya appear to have adopted more widely in arranging for vehicles used in their taxi business to be purchased by third parties.

36 At least by January 2012, the HiAce bus was under the control of Krisneil and the registration of the Toyota HiAce bus was transferred from Telcom to Krisneil on 25 May 2012 (Chidiac 14.3.14 [15], Annexure "B"). Mr Bhatt's affidavit evidence that the HiAce bus was registered to Telcom, implicitly at the date of his affidavit, was incorrect so far as that vehicle had by then been registered to Krisneil (T184-185). His evidence in cross-examination was initially that the Toyota HiAce bus was currently owned by Telcom but registered to Krisneil (T182) but he ultimately accepted in cross-examination that Krisneil was the owner of the vehicle, although he was not prepared to accept that it had owned the vehicle since October 2011 (T185). Ms Vaidya accepted in cross-examination that Krisneil, rather than Telcom, had been the owner of the Toyota HiAce bus since October 2011 (T347). The value of that bus is noted in Ex P6 as $76,000 as at that date and Ms Vaidya accepted in cross-examination that that figure reflected the value of the bus at that time (T347). Mr Chidiac's evidence was that Mr Bhatt drove that bus.

37 Mr Chidiac's claim that the discussions between Mr Bhatt and Mr Chidiac contemplated the transfer of the HiAce bus to Rosybarb is supported by the fact that, from 27 February 2012, Rosybarb commenced payment of monthly instalments on the loan taken out to purchase the HiAce bus and continued to pay those instalments until at least May 2013. The bank statements of Rosybarb that are in evidence do not continue beyond that point. Ms Vaidya did not accept in cross-examination that Rosybarb commenced to make payments on the HiAce bus from February 2012 by reason of any agreement between Mr Bhatt and Mr Chidiac that Mr Bhatt would cause that bus to be transferred to Rosybarb for use in the taxi business to be operated by Rosybarb (T357) and her evidence in cross-examination was that the fact that loan payments on the bus were made from the Rosybarb account resulted from a "mistake" in providing the account number to Toyota Finance (T349) and that, although the instalments were paid by Rosybarb, Krisneil put the relevant money into Rosybarb's account (T351). It does not seem to me that the coincidence in timing between the discussions between Mr Bhatt and Mr Chidiac and the commencement of those payments is adequately explained by Ms Vaidya's evidence suggesting that those payments were made by such a "mistake", which had not existed in the period prior to the suggested agreement with Mr Chidiac. I do not accept Ms Vaidya's evidence in this regard.

Dealings with taxi dockets

38 A further issue also arose in the affidavit evidence, and to some extent in cross-examination, as to the arrangements by which taxi dockets issued to Mr Chidiac and members of the WLRA under a taxi subsidy scheme for disabled persons were used to pay for their transport and whether there existed schemes, involving Mr Chidiac or Mr Bhatt or other taxi drivers, to cash such dockets. Mr Bhatt, by his affidavit dated 11 December 2013, referred to conversations with Mr Chidiac in respect of the cashing of taxi dockets (Bhatt 11.12.13 [8]). Mr Bhatt's evidence was, in effect, that his arrangements with Mr Chidiac were intended to multiply the number of vehicles used in transporting members of the WRLA, so as to multiply the number of taxi dockets that were obtained, and, at least by implication, the monies that could be derived from dealings with those taxi dockets. It seems to me that the arrangements in place between Mr Chidiac and Mr Bhatt may also have extended to dealings with taxi dockets issued under the taxi subsidy scheme, although the evidence as to those matters is not sufficient to allow identification of the content of those arrangements.

Mr Chidiac's claim for declarations as to ownership of shares in Rosybarb and his position as a director

39 Mr Chidiac contends that he was the sole director and sole shareholder, holding 100 shares in Rosybarb and that he has not disposed of those shares and remains the legal and beneficial owner of them and a director of Rosybarb.

40 It is common ground that Mr Chidiac was the sole shareholder in Rosybarb and sole director of Rosybarb between 9 April 2012 and at least 20 September 2012. The Defendants admitted that Mr Chidiac was the sole director and sole shareholder of Rosybarb from 9 April 2012 to 20 September 2012, in paragraph 3 of the Amended Defences filed 6 July 2013 and (without reference to specific dates) in paragraph 6 of the Amended Defences filed 7 November 2013. The position in respect of the transactions goes beyond the admissions made in the pleadings. Mr Bhatt's and Ms Vaidya's evidence (in similar form as I noted above) is that a meeting concerning the transfer of shares in Rosybarb to Mr Chidiac took place on 8 April 2012. Mr Chidiac's evidence is that that meeting took place on 9 April 2012. It is not necessary to resolve that dispute for the purposes of this judgment, particularly where there is no dispute between the parties that the shares in Rosybarb were validly transferred to Mr Chidiac and that he was validly appointed as director, notwithstanding that there is a dispute as to subsequent transactions. Mr Chidiac's evidence is that he was given a bundle of documents on 9 April, which he returned to Mr Bhatt and Ms Vaidya, which he believes include a share transfer, and the substance of Mr Bhatt and Ms Vaidya's case has proceeded on the basis that Mr Chidiac was in fact the shareholder in the relevant period, although Ms Vaidya gave evidence in cross-examination which might suggest that the dealings with Mr Chidiac were of the same character as later transactions in respect of the shares in Rosybarb with other parties.

41 A minute of general meeting of the members of Rosybarb purportedly held on 9 April 2012 and attended by Ms Vaidya and Mr Chidiac recorded Ms Vaidya's resignation as a director of that company and Mr Chidiac's appointment as a director (Chidiac 23.9.13 [71], Annexure "H"). The register of members in respect of Rosybarb, produced by Mr Bhatt on subpoena, also identifies the date of transfer of the shares from Ms Vaidya to Mr Chidiac as 9 April 2012 (Chidiac 23.9.13 [129], Annexure "Z"). Notification was given to the Australian Securities & Investments Commission ("ASIC") of Ms Vaidya's resignation as a director of Rosybarb and of the transfer of all the ordinary shares in Rosybarb from Ms Vaidya to Mr Chidiac on 12 and 17 April 2012 respectively (Chidiac 23.9.13 [74]-[75], Annexures "J"-"K").

42 Mr Bhatt and Ms Vaidya submit that the change in the shareholding from Rosybarb to Mr Chidiac was carried out on 17 April 2012:

"for the benefit of Mr Chidiac, so he would be able to receive financing from Sydney City Toyota as the director of Rosybarb".

It may be that that was one purpose of the transaction, so far as Mr Bhatt and Ms Vaidya were concerned, since it appears that they had a practice, subsequently continued with Mr Hastas, of seeking to have persons become a director or shareholder of Rosybarb (or at least be recorded as such in ASIC's records) so as to assist in their applying for finance for taxis to be operated by Rosybarb. Mr Bhatt also gives evidence, and Ms Vaidya also gives evidence in a form plainly copied from Mr Bhatt's affidavit, that she had expressed her concerns to Mr Bhatt about Mr Chidiac's control of Rosybarb and that Mr Bhatt had reassured her in words to the effect that:

"[Mr Chidiac] is not interested in the company, he wants cars for his association and dockets for his members. We just have to do what we can to help him." (Bhatt 11.12.13 [76]; Vaidya 20.1.14 [36])

The difficulties with Mr Bhatt's evidence to which I have referred above have the result that I would not accept Mr Bhatt's evidence of this conversation, and I cannot accept Ms Vaidya's evidence of it where it has plainly been copied from Mr Bhatt's affidavit. Having said that, the subjective purpose of the transaction, from Mr Bhatt's and Ms Vaidya's perspective, does not alter the fact that its effect (where the parties chose to conduct the case on the basis it was validly implemented) was to constitute Mr Chidiac as both the sole director and sole shareholder of Rosybarb.

43 I note, for completeness, that Ms Vaidya's evidence, which there is no reason to doubt, is that she continued her role as the nominated operator of Rosybarb, for the purposes of the taxi licensing regime, from 9 April to 20 September 2012, including dealing with matters in respect of the day-to-day operations of the one taxi that was then registered to Rosybarb. Mr Chidiac accepted, in submissions in reply, that Ms Vaidya continued in the role of nominated operator for Rosybarb under taxi licensing regulations and carried out the day-to-day management of Rosybarb in the period from April 2012. That does not, however, undermine the conclusion that Mr Chidiac was the shareholder in and director of Rosybarb in that period.

44 Mr Rose, who appears for Mr Chidiac, submits, and I accept, that this is not a case where the admission made by Mr Bhatt and Ms Vaidya as to Mr Chidiac's holding of shares in the company is inconsistent with other evidence such that it should be disregarded. I have ultimately concluded that I am bound to proceed on the basis of these admissions where all parties have proceeded on that basis and there would be real prejudice to Mr Chidiac in taking a different approach. Had that not been common ground between the parties, there would have been a real issue as to whether the transfer of shares to Mr Chidiac was legally effective, since it may have the same difficulties as the later corporate transactions by which those shares were transferred to others, in that it was not undertaken in a manner that complied with the Corporations Act 2001 (Cth) or the company's constitution.

The transfer of the shares in Rosybarb to Mr Hastas and his appointment as a director of Rosybarb

45 Mr Chidiac seeks a declaration that the purported transfer of 100 ordinary shares in Rosybarb from him to Mr Hastas on or about 20 September 2012 was invalid and that Mr Chidiac remains the owner of the shares. By their Defence filed 7 November 2013, Mr Bhatt and Ms Vaidya plead that they "did not agree" that the transfer of the shares in Rosybarb from Mr Chidiac to Mr Hastas was invalid. They also plead that they "did not agree" that Mr Chidiac remained the owner of the shares or a director of Rosybarb and they resist an order for rectification of the register of members maintained by Rosybarb.

46 The share register of Rosybarb relevantly records Ms Vaidya as holding the shares in the company from 4 June 2011 to 9 April 2012; Mr Chidiac holding those shares from 9 April 2012 to 20 September 2012; Mr Hastas holding those shares from 20 September 2012 to 9 November 2012; and Mr Bhatt holding those shares from 9 November 2012. Mr Rose accepted that the share register operates as prima facie proof of the matters shown in it. Section 1274B(2) of the Corporations Act in turn provides that, in effect, information obtained by ASIC from the national database is prima facie evidence of the matters contained in it, and a current and historical company extract for Rosybarb records the purported transfer of the shares from Mr Chidiac to Mr Hastas and then from Mr Hastas to Mr Bhatt. However, the prima facie position arising from the information notified by Rosybarb to ASIC and any consequential record in the database needs to be assessed by reference to the evidence as to the underlying corporate transactions to which I will refer below.

47 A purported minute of a general meeting of members of Rosybarb held on 20 September 2012, and purportedly attended by Mr Chidiac and Mr Hastas, the minutes of which are not signed by either, recorded that:

"It was decided in the meeting THAT MR HARRY HASTAS will be appointed as director on 20/09/2012 and 100 share of MR JOSEPH CHIDIA [sic] will be transferred to MR HARRY HASTAS @ 1.00 each. It was also decided in the meeting that MR

JOSEPH CHIDIAC resign from the company as director, shareholder and secretary and as a member from 20/09/2012." (Chidiac 23.09.2013, Annexure "AA")

Ms Vaidya accepted there is no minute in Rosybarb's minute book for any meeting of its members held on that date (T337) and no resolution of Mr Chidiac as the sole member of Rosybarb on or about that date (T338).

48 Notice that Mr Hastas had been appointed as a director of Rosybarb and that Mr Chidiac had ceased as a director of Rosybarb was lodged with ASIC on 20 September 2012 (Chidiac 23.9.13 [118]-[119], Annexure "T") and notification of a transfer of the shares in Rosybarb from Mr Chidiac to Mr Hastas was also lodged with ASIC on that date (Chidiac 23.9.13 [120], Annexure "U"). The notice given to ASIC of the transfer of shares to Mr Hastas recorded that Mr Hastas did not beneficially hold the shares in Rosybarb when they were purportedly transferred to him on 20 September 2012 and Mr Bhatt accepted in cross-examination that that information may have indicated that Mr Hastas was not acquiring the shares for his own benefit (T160). The address recorded for Mr Hastas in that notification was not his address but Ms Vaidya's address (T161). Mr Bhatt and Ms Vaidya admit, in their Amended Defence filed in the proceedings, that those notifications were given by them.

49 Section 1070A of the Corporations Act provides that a share in a company is personal property and is transferable as provided by the company's constitution. Neither party put Rosybarb's constitution in evidence and the evidence also does not establish whether the replaceable rules under the Corporations Act which prima facie apply to Rosybarb (because it was registered after 1 July 1998) have been excluded by that constitution. Mr Rose points to s 1071B of the Corporations Act which provides that, subject to two exceptions that are not presently relevant, a company may only register a transfer of securities if a proper instrument of transfer has been delivered to the company. There is no evidence that a transfer of Mr Chidiac's shares to Mr Hastas was ever executed or made available to Rosybarb. No such instrument of transfer was produced by Mr Bhatt or Rosybarb on subpoena, and Mr Bhatt and Ms Vaidya do not rely on any such instrument in their case, whether in respect of the transfer of shares from Mr Chidiac to Mr Hastas or the subsequent transfer from Mr Hastas to Mr Bhatt. Mr Bhatt accepted in cross-examination that he did not receive a signed transfer form from Mr Chidiac in respect of the shares in Rosybarb prior to the notification of the transfer being given to ASIC and he acknowledged in cross-examination that no such transfer form exists (T161-162). Ms Vaidya also accepted in cross-examination that no share transfer form from Mr Chidiac to Mr Hastas was given to her before she lodged notice of the share transfer with ASIC and that, to her knowledge, there was no contract or agreement between Mr Chidiac and Mr Hastas for the transfer of those shares (T335).

50 Mr Hastas also accepted, in his evidence, that he did not purchase or acquire the shares in Rosybarb from Mr Chidiac and that he did not regard himself as the owner of shares in Rosybarb between 20 September and 9 November 2012, although he believed that he had been appointed as a director, or additional director of the company, in connection with his purchase of a vehicle which was to be operated as a taxi by the company. By letter also dated 20 September 2012, Mr Hastas purported to:

"Allow and give full permission for the operation of the company and duties of the director, from operational to the management and administration level operations to Prashant Bhatt"

That letter also authorised Mr Bhatt to act on Mr Hastas' behalf in various other matters. It is not necessary to address the efficacy or otherwise of that suggested authority in respect of Mr Hastas' obligations so far as he was a director of Rosybarb.

51 The fact that no transfer is shown to have been executed or provided to Rosybarb in respect of Mr Chidiac's shares in Rosybarb itself has the result that he continues to have the title to those shares. The purported decision of the board meeting that purportedly took place on 20 September 2012 to which I referred was also not effective to transfer Mr Chidiac's shares to Mr Hastas. First, I am satisfied that such a meeting did not take place and such a decision was not made, at least with Mr Chidiac's participation. Second, a general meeting's decision to transfer a shareholder's shares to another person would not, without more, have effected such a transfer; compare, in respect of a decision of a company's board, Bell v Burton (1993) 12 ACSR 325 at 330.

52 I am also satisfied that Mr Chidiac did not resign as a director of Rosybarb and was not removed as a director since, where he was the only shareholder and did not assent to his removal, he could not have been removed by general meeting. So far as the purported appointment of Mr Hastas as a director was concerned, a company can only appoint a person as a director in accordance with its constitution; or by resolution in general meeting under the replaceable rule in s 201G of the Corporations Act, where that rule is applicable; or by a director of a proprietary company who is its only director and only shareholder appointing another person as a director in the manner contemplated by s 201F of the Corporations Act; or by the directors of a company appointing the person as a director, with subsequent confirmation by general meeting in the manner contemplated by the replaceable rule in s 201H of the Corporations Act. As I noted above, Mr Bhatt and Ms Vaidya admit that Mr Chidiac was the sole director and sole shareholder of Rosybarb to 20 September 2012 and, in those circumstances, the appointment of Mr Hastas as another director or in place of Mr Chidiac could also not take place without his consent on 20 September 2012.

53 Mr Bhatt and Ms Vaidya contend that they were given oral authority by Mr Chidiac to amend the share register and ASIC's national database to represent that Mr Hastas was the owner of the shares in Rosybarb and was appointed as a director or Rosybarb. Mr Bhatt set out the relevant conversation in paragraph 95 of his affidavit dated 11 December 2013, which is denied by Mr Chidiac. Even on Mr Bhatt's account of the conversation, it does not expressly authorise the transfer of Mr Chidiac's shares to Mr Hastas or Mr Chidiac's removal as a director of Rosybarb. When Mr Bhatt was given leave to lead oral evidence in respect of this conversation, he led evidence of a conversation with Ms Vaidya to somewhat different effect. Mr Chidiac denies authorising each of these steps or the notification of them and I accept his evidence in that regard which seems to me to be consistent with the objective probabilities. It also does not seem to me that such authority would assist Mr Bhatt and Ms Vaidya where a notification of the removal of a director or the transfer of shares to ASIC, whether or not given with authority, does not itself bring about either consequence. In closing submissions, Mr Bhatt referred to inquiries which he had made by telephone to ASIC as to the process for lodgement of Forms 484 recording changes in shares and directorships and submits that there is no requirement for the physical signature of such forms. Assuming the correctness of that proposition, although it was not the subject of evidence, it also does not assist Mr Bhatt and Ms Vaidya so far as the lodgement of such forms is not itself a means recognised by the Corporations Act for the transfer of shares or the removal of directors, as distinct from notification of those events when they otherwise validly occur.

54 Mr Bhatt and Ms Vaidya also point to the obligation of care and diligence imposed on a director under s 180 of the Corporations Act and submit that Mr Chidiac did not ask for the ASIC corporate key (which allowed changes to be made to the company's records held with ASIC) or deal with the company's daily operations or management. They point out, and it appears to be the case, that the one taxi registered to Rosybarb was financed by Mr Hastas and its operation was managed by Ms Vaidya. They also point to the replaceable rule under s 198E of the Corporations Act (if it applied to Rosybarb, which was unclear as I noted above) which contemplates that a company's business is to be managed by or under the direction of its directors, and point out that Mr Chidiac did not manage the company. Those matters do not, however, have any impact upon the ownership of the shares in Rosybarb or upon the question whether Mr Chidiac was or was not removed as a director.

55 For these reasons, I am satisfied that Mr Chidiac's shares in Rosybarb were not validly transferred to Mr Hastas, Mr Hastas was not validly appointed a director of Rosybarb and Mr Chidiac was not validly removed as a director or Rosybarb.

The transfer of the shares in Rosybarb to Mr Bhatt and his appointment as a director of Rosybarb

56 Mr Chidiac also seeks a declaration that a further purported transfer of the shares in Rosybarb from Mr Hastas to Mr Bhatt in the period 9 - 18 November 2012 was invalid and that Mr Chidiac remains the owner of those shares. By their Defence filed 7 November 2013, Mr Bhatt and Ms Vaidya plead that they "did not agree" that the transfer of the shares in Rosybarb from Mr Hastas to Mr Bhatt was invalid. If (as I have held above) Mr Hastas did not acquire the shares in Rosybarb from Mr Chidiac, then Mr Bhatt cannot thereafter have acquired them from Mr Hastas. I will nonetheless refer to the relevant evidence below.

57 Mr Bhatt's and Ms Vaidya's evidence is that Mr Hastas asked to be removed from his directorship of Rosybarb on 28 October 2012, after Mr Chidiac had raised concerns as to the relevant events with him and that Mr Bhatt assumed the directorship of Rosybarb on 9 November 2012 as a result of Mr Hastas' request to be removed from that position. Ms Vaidya gives evidence of a suggested extraordinary general meeting of the members of Rosybarb on 9 November 2012 (Vaidya 20.1.14 [51], Annexure "P"). By a further minute of that meeting purportedly signed by Mr Hastas as chairman, Mr Bhatt as director and Ms Vaidya as secretary, it was recorded that:

"It was decided in the meeting that MR HARRY HASTAS will RESIGN as a Director, shareholder, secretary and as a member from 09/11/2012. All 100 shares of MR HARRY HASTAS will be transferred to MR PRASHANT BHATT at $1.00 each. MR PRASHANT BHATT will take all the responsibility of Chairman, Director and of 100% shareholding as of today. MR PRASHANT BHATT will also take charge of all company's liabilities, its assets and any claims that may arise of any transactions that happened previously. MS GAYATRI VAIDYA will continue as a company secretary and nominated operational manager."

Mr Bhatt accepted in cross-examination that he did not receive a signed transfer of shares from Mr Chidiac to him or from Mr Hastas to him prior to his being recorded as the holder of the shares in Rosybarb from 9 November 2012 (T162).

58 Notification was then given to ASIC of the appointment of Mr Bhatt as a director of Rosybarb and that Mr Hastas had ceased to be a director of Rosybarb (Chidiac 23.9.13 [126], Annexures "W", "X"; Vaidya 20.1.14 [52], Annexure "Q", Hastas 11.2.14 [17], Annexure "D"). A notification of the transfer of the shares in Rosybarb from Mr Hastas to Mr Bhatt was lodged by Mr Bhatt with ASIC on 18 November 2012 (Chidiac 23.9.13 [128], Annexure "Y"). The Amended Defences filed by Mr Bhatt and Ms Vaidya admit that those notifications were also given by them although they contend that was done with Mr Hastas' authority.

59 There is no evidence that a transfer of Mr Chidiac's shares to Mr Hastas or of Mr Hastas' shares to Mr Bhatt was executed or made available to Rosybarb. As I noted above, no such instrument of transfer was produced by Mr Bhatt or Rosybarb on subpoena, and Mr Bhatt and Ms Vaidya do not rely on any such instrument in their case, whether in respect of the transfer of shares from Mr Chidiac to Mr Hastas or the subsequent transfer from Mr Hastas to Mr Bhatt. The purported decision of the general meeting that purportedly took place on 9 November 2012 to which I referred above was also not effective to transfer Mr Chidiac's shares to Mr Bhatt without his consent. I am also satisfied that Mr Chidiac did not resign as a director of Rosybarb and was not removed as a director since, where he was the only shareholder and did not assent to his removal or Mr Bhatt's appointment, he could not in any event have been removed as a director or Mr Bhatt appointed by the purported general meeting on 9 November 2012.

60 For these reasons, I am satisfied that Mr Chidiac's shares in Rosybarb were not validly transferred to Mr Bhatt and Mr Bhatt was not validly appointed a director of Rosybarb in November 2012.

Orders for amendment of the share register

61 Mr Chidiac contends that he is a person aggrieved by the record of the transfers of the shares in Rosybarb for the purposes of s 175 of the Corporations Act and seeks to have the share register corrected to remove the entries recording Mr Hastas and Mr Bhatt as the owner of the shares since 20 September 2012 and record him as having been the owner of the shares since 9 April 2012. He also seeks corresponding relief in respect of Rosybarb's register of directors to record that he has been the director of that company at all relevant times since April 2009.

62 Section 175 of the Corporations Act provides, relevantly, that a person aggrieved may apply to the Court to have a register kept by a company corrected and, if the Court orders that company to correct the register, it may also order that company to compensate a party to the application for loss or damage suffered and to lodge notice of the correction with ASIC. That section operates in parallel to, and arguably assumes the existence of, the Court's equitable jurisdiction to rectify a register: Grant v John Grant & Sons Pty Ltd [1950] HCA 54; (1950) 82 CLR 1 at 51; Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1996) 20 ACSR 553 at 558-559. The authorities recognise that the applicant for rectification must show a personal equity that the Court will protect; prima facie, such an equity is shown if a person's name is wrongly omitted from the register; however, the Court has a broad discretion whether to order the correction of the register of members and may decline to order rectification if there is some reason why that should not occur: Grant above at 51. I summarised the relevant principles in Re Mogul Stud Pty Ltd [2012] NSWSC 1639 at [7] as follows:

"That section does not itself confer a power to [rectify] a register, but assumes that the Court already has such a power at general law: Peninsula Gold Pty Ltd v Sunbeam Victa Holdings Ltd (1966) 20 ACSR 553; (1996) 14 ACLC 1089 at 1094. In the well known decision of Grant v John Grant & Sons Pty Ltd (1950) 82 CLR 1 at 51, Fullagar J pointed to the discretionary character of the power to order rectification of the register and to the fact that in equity warranty rectification would prima facie be established if a person's name was wrongly included or omitted from the register; the same principle is plainly applicable where, rather than the person's name being omitted, the number of shares attributed to that person is incorrectly recorded, so as to impose a disadvantage on that person or on other shareholders. The principles of rectification at general law are relevant, and those draw attention to where the position as recorded in a document reflects the common subjective intention of the parties: Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 76 NSWLR 603 at [444]ff."

63 I accept that the transfer of shares from Mr Chidiac to Mr Hastas and then to Mr Bhatt was not validly effected for the reasons set out above. Accordingly, an order should be made for the amendment of the register of members of Rosybarb to delete the references to Mr Hastas and Mr Bhatt being a shareholder of the company and to record that Mr Chidiac has been a shareholder of the company in respect of all its 100 ordinary shares at all times since April 2012.

64 I also accept that the removal of Mr Chidiac as a director and the appointment of Mr Hastas and Mr Bhatt as directors was not validly effected for the reasons noted above. An order should also be made for the amendment of the register of directors of Rosybarb to delete the references to Mr Hastas and Mr Bhatt being a director of the company and to record that Mr Chidiac has been a director of the company at all times since April 2012. In the particular circumstances, it does not seem to me that the fact that Mr Hastas is not party to the proceedings is an obstacle to that order, since he made clear in his evidence that he does not oppose such orders and the real dispute is between Mr Chidiac on the one hand and Mr Bhatt and Ms Vaidya on the other.

Claim for constructive trust over the shares

65 Mr Chidiac put an alternative claim for a resulting or constructive trust, said to have arisen by reason of a breach of a fiduciary duty alleged to have been owed by Mr Bhatt to Mr Chidiac. That case was put as an alternative to the claim for rectification of the register, and it is not necessary to decide it where I have held that Mr Chidiac succeeds in his claim for rectification of the register. I will nonetheless briefly address its elements.

66 Mr Chidiac relevantly claims that the transfer of the shares to Mr Hastas and thereafter to Mr Bhatt and his removal as a director of Rosybarb and the appointments of Mr Hastas and later Mr Bhatt as directors of Rosybarb were in breach of a fiduciary duty owed by Mr Bhatt, Ms Vaidya and Rosybarb to him. An ad-hoc fiduciary duty may arise in the circumstances of a particular relationship, typically involving an undertaking by one party to act in the interests of the other to the exclusion of his or her own interests: Hospital Products Ltd v United States Surgical Corp [1984] HCA 64; (1984) 156 CLR 41 at 96-97; John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; (2010) 241 CLR 1 at 34-35 [87]. It may be that, at some points, Mr Chidiac placed a degree of personal confidence in Mr Bhatt. However, it does not seem to me that the circumstances gave rise to an undertaking by Mr Bhatt, still less Ms Vaidya or Rosybarb, to act in Mr Chidiac's interests, to the exclusion of his own, and a fiduciary duty is therefore not established. A constructive trust would not be available as a remedy for breach of fiduciary duty since no such duty was established.

Claim for conversion

67 Mr Chidiac also brought an alternative claim for conversion. That claim, if otherwise available, would have raised a question whether a claim for conversion can be brought in respect of a share, given the general proposition that a chose in action cannot be converted: Foxeden v IOOF Building Society Ltd [2003] VSC 356 at [325]. However, the claim in conversion does not need to be decided where, for the reasons noted above, no effective transfer of the shares away from Mr Chidiac had occurred.

Claim for breach of contract

68 Mr Chidiac relies on an alleged agreement between him and Mr Bhatt or Ms Vaidya, which is said to have been formed in or about February 2012, which is pleaded as follows:

"... By an agreement between [Mr Chidiac] on the one part, and [Mr Bhatt and Ms Vaidya] (or either of them) on the other, in or about February 2012, it was agreed that:

(a) [Mr Bhatt] had entered into, or would soon enter into, a distributorship agreement with Aqua Max Investment Pty Limited ("AMI"), under or in respect of which [Mr Bhatt] was or would be obliged to pay AMI $60,000 or thereabouts;

(b) [Mr Chidiac] would make payments to [Mr Bhatt], or to third parties (including AMI) at [Mr Bhatt's] direction or request, on behalf of [Mr Bhatt], totalling $60,000, which payments would be applied towards the amount(s) payable by [Mr Bhatt] in respect of or under the distributorship agreement with AMI;

(c) In consideration of [Mr Chidiac] making those payments, [Mr Bhatt and Ms Vaidya] would:

(i) Transfer the Shares [in Rosybarb] to [Mr Chidiac]; and

(ii) Transfer to [Mr Chidiac] and/or Rosybarb, or otherwise cause [Mr Chidiac] and/or Rosybarb to become the owner and registered owner of, a Toyota Hiace motor vehicle, with VIN/chassis number [omitted] ("the Hiace Bus")."

That agreement is particularised as having been verbal and made between Mr Chidiac and Mr Bhatt on behalf of the Defendants. Mr Chidiac pleads that, pursuant to that agreement, he made payments on behalf of Mr Bhatt totalling $60,855.64 towards the amounts payable by Mr Bhatt in respect of or under the distributorship agreement with AMI. Mr Chidiac pleads that, in breach of the pleaded agreement, the Defendants or either of them have failed or refused to transfer the HiAce bus to Mr Chidiac, or otherwise cause Mr Chidiac and/or Rosybarb to become the owner and registered owner of the HiAce bus.

69 In written submissions, Mr Rose described the key commercial terms of the arrangements between Mr Bhatt and Mr Chidiac as follows:

"(a) Mr Chidiac would pay Mr Bhatt $60,000 (which Mr Bhatt would use to pay for his AMI distributorship);

(b) Mr Bhatt would obtain and transfer to Mr Chidiac the company Rosybarb, which had a licence to operate three taxis or to Rosybarb, (as owned by Mr Chidiac) a particular Toyota HiAce taxi bus;

(c) Mr Bhatt and Mr Chidiac would seek opportunities to finance more taxi cabs with facilities for the disabled, for Rosybarb;

(d) Mr Bhatt would manage Rosybarb's taxi cab business and share the profits of the business 50/50 with Mr Chidiac."

70 A defence filed by Mr Bhatt and Ms Vaidya in proceedings in the Local Court, which were subsequently transferred to this Court, accepted that there existed an agreement by which Mr Chidiac became a director and the sole shareholder of Rosybarb, which involved a commitment by him (I interpolate, subsequently not fulfilled) as to the purchase of vehicles for Rosybarb to run a taxi operation. The relevant payments made in respect of AMI, to which I have referred above, total $60,855.64, a little more than Mr Chidiac claims to have agreed with Mr Bhatt in February 2012. The slight difference between those figures is a matter that does not undermine Mr Chidiac's evidence of the February 2012 agreement.

71 Mr Chidiac's claim for breach of contract depends upon the oral agreement formed with Mr Bhatt, of which he gives evidence. Mr Chidiac's evidence is that he had no independent involvement with AMI, after sponsorship negotiations collapsed, and that he funded Mr Bhatt's investment in AMI in consideration of the agreement to transfer the shares in Rosybarb and the Toyota HiAce bus to him. I have indicated reservations as to Mr Chidiac's evidence in this regard above, and it seems to me that he had a greater involvement with AMI, at least through Mr Bhatt, than he was prepared to acknowledge. Nonetheless, I accept that there existed an agreement between Mr Bhatt and Mr Chidiac involving at least the elements pleaded by Mr Chidiac, although possibly also extending to anticipated dealings with taxi subsidy vouchers as I noted above. The evidence to which I have referred above establishes that the primary relationship was between AMI and Mr Bhatt and Mr Bhatt acknowledged significant aspects of that relationship in his cross-examination, as I have also noted above. Mr Chidiac presented in cross-examination as a person of at least a degree of sophistication, consistent with his success in establishing and developing the WRLA. Notwithstanding that he appears to have developed a friendly relationship with Mr Bhatt, it is highly unlikely that he would have parted with a very substantial amount of money to fund Mr Bhatt's investment in AMI, unless an agreement of the kind to which he refers existed. The fact of that agreement is supported by the transfer of the shares in Rosybarb to him, his appointment as a director of Rosybarb and the fact that, as I noted above, Rosybarb commenced making finance payments on the HiAce bus at the time of the alleged agreement, albeit with funds provided to it by Krisneil.

72 In these circumstances, I accept that Mr Chidiac has established at least the substance of the pleaded agreement between him and Mr Bhatt and that it was breached by the failure to transfer the HiAce bus to Rosybarb. There was no breach of that agreement in respect of the transfer of the shares in Rosybarb to Mr Chidiac because, as I noted above, it is common ground they were transferred to him in April 2012, notwithstanding the dispute as to the subsequent transactions from September 2012.

Quantification of contractual damages

73 I now turn to the question of damages for breach of the pleaded agreement between Mr Chidiac and Mr Bhatt. Mr Chidiac claims damages including the market value of a replacement for the HiAce bus and/or a sum of $60,855.64, by reason of the failure to transfer that bus to him or Rosybarb as contemplated by the pleaded agreement.

74 Mr Bhatt and Ms Vaidya initially contended, in their opening submissions, that the Toyota HiAce bus was, at the time of the suggested promise in early 2012, registered to Telcom and that the transfer of the vehicle could not take place where it is a taxi and can not be operated without an operator accreditation. A contracting party can, of course, promise to transfer an item which it does not then own to another party, although it will be liable in damages if it is unable to comply with that obligation. A contracting party can also promise the transfer of a vehicle although the implementation of that transfer may have adverse consequences such as the loss of its ability to be registered in a particular category. In the event, the evidence that emerged in the hearing indicated that the HiAce bus was under the practical control of Krisneil, another company associated with Ms Vaidya. The fact that the vehicle was registered as a taxi and could not be operated without an operator accreditation might provide a defence to an order for specific performance, which Mr Chidiac does not seek, but provides no defence to a claim for damages arising from the failure to deliver the vehicle.

75 The evidence does not establish any agreement to transfer the HiAce bus to Mr Chidiac personally. The fact that Rosybarb commenced to make loan repayments on the HiAce bus from February 2012 is consistent with the suggested arrangement for a transfer of the vehicle to Rosybarb, but not with the alternative characterisation that it was to be transferred to Mr Chidiac. Mr Chidiac has therefore not established a claim to be entitled to recover the market value of a replacement for the HiAce bus, because that bus was not to be transferred to him.

76 So far as the pleaded agreement provided for the transfer of the HiAce bus to Rosybarb, it would have been open to Mr Chidiac to seek specific performance of that contract. The question of the vehicle's registration as a taxi, which I noted above, may have been relevant to whether such an order would have been granted in the exercise of the Court's discretion. In any event, Mr Chidiac did not seek such an order.

77 A question therefore arises whether Mr Chidiac, as party to a contract by which a benefit (the transfer of the bus) was to be conferred on Rosybarb, can obtain substantive damages for breach of that contract. In Winterton Constructions Pty Ltd v Hambros Australia Ltd (1991) 101 ALR 363 at 367, Gummow J (as his Honour then was) noted, where A (Mr Bhatt) promised B (Mr Chidiac) to benefit C (Rosybarb) that:

"There is debate in the authorities as to whether, if there was no trust binding B in favour of C, B may recover any more than nominal damages from A."

78 In Carter on Contract (online) at [17-160], the author observes that:

"On one view, where a promisee obtains an award for compensation in respect of the breach of a promise to confer a benefit on a third party the promisee is entitled to no more than a nominal sum, presumably on the basis that only the third party suffers any loss ...

However, the better view is that damages are governed by general principles and not necessarily nominal: See Coulls v Bagot's Executor and Trustee Co Ltd (1967) 119 CLR 460 at 501-3 per Windeyer J (dissenting judgment, approved Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 118-19; 80 ALR 574 at 581 per Mason CJ and Wilson J, at CLR 138 ; ALR 596 per Brennan J (dissenting judgment), at CLR 158 ; ALR 610 per Dawson J, at CLR 173 ; ALR 621 per Gaudron J; FCT v Orica Ltd (1998) 194 CLR 500 at 542; 154 ALR 1 at 32 per Gummow J); Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 at 112; [1993] 3 WLR 408 at 428; [1993] 3 All ER 417 at 434-5 per Lord Browne-Wilkinson (with whom the other members of the House of Lords agreed).

Accordingly, substantial damages are recoverable unless in fact the promisee suffers no loss." (omitting several references)

79 That summary is consistent with Windeyer J's observation in Coulls v Bagot's Executor and Trustee Co Ltd [1967] HCA 3; (1967) 119 CLR 460 at 501-502 that, if B is in breach of a contract with A under which B has promised to pay C $500:

"I can see no reason why in such cases the damages which A would suffer upon B's breach of his contract to pay C $500 would be merely nominal: I think that, in accordance with the ordinary rules for the assessment of damages for breach of contract, they could be substantial. They would not necessarily be $500; they could I think be less, or more.

Windeyer J's observation was approved by Mason CJ and Wilson J in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 at 119, where their Honours noted that:

"Windeyer J went on to say that the promisee could recover more than nominal damages in a situation in which he had sustained actual loss or damage by reason of the promisor's breach of his promise to confer a benefit on the third party. Plainly his Honour correctly stated the law in this respect."

80 I have also considered whether Mr Chidiac is prevented from recovering such loss by the principle of "reflexive loss", although the parties did not raise that issue in submissions. That principle was summarised by Stevenson J in VPlus Holdings Pty Ltd v Bank of Western Australia Ltd [2012] NSWSC 1327; (2012) 91 ACSR 545 at [28] as follows:

"The relevant principle is that a shareholder of a company cannot recover damages merely because the company has suffered damage, and cannot recover damages that are merely a reflection of a loss suffered by the company. A shareholder may only recover damages for loss suffered personally that is separate and distinct from the loss of the company (citations omitted)."

The public policy consideration underlying this principle is to prevent double recovery by ensuring that the company and shareholders do not recover concurrently from the same defendant: Mercedes Holdings Pty Ltd v Waters (No 3) [2011] FCA 236 at [45]; VPlus Holdings Pty Ltd above at [34]. It does not seem to me that principle would be applicable in the present case, where the relevant promise was made to Mr Chidiac rather than Rosybarb and where there is no suggestion that a trust existed of the kind considered in Wilson v Darling Island Stevedoring and Lighterage Co Ltd [1956] HCA 8; (1956) 95 CLR 43; Trident General Insurance Co Ltd v McNiece Bros Pty Ltd above and Winterton Constructions Pty Ltd v Hambros Australia Ltd above at 368-375. It does not seem to me that there is any risk of double recovery where only Mr Chidiac and not Rosybarb can sue on the pleaded agreement, and that principle is directed to preventing double recovery, not to preventing the only party that is privy to a contract from suing upon that contract.

81 It follows that it would be open to Mr Chidiac to recover substantive damages by reason of the failure to deliver the HiAce bus to Rosybarb, subject to establishing the amount of those damages. Mr Chidiac quantifies his damages for Mr Bhatt's failure to deliver that bus to Rosybarb as being the value of the bus. However, it seems to me that his loss is not properly quantified on that basis. The plurality of the High Court observed in Haines v Bendall [1991] HCA 15; (1991) 172 CLR 60 at 63 (omitting several references):

"The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed ...Compensation is the cardinal concept. It is the "one principle that is absolutely firm, and which must control all else": Skelton v Collins (1966) 115 CLR 94, per Windeyer J at 128. Cognate with this concept is the rule, described by Lord Reid in Parry v Cleaver [1970] AC 1, at 13, as universal, that a plaintiff cannot recover more than he or she has lost.

82 It seems to me that neither Rosybarb nor Mr Chidiac have suffered loss in the amount of the value of the bus by the failure to deliver that bus, because the terms of the relevant agreement included that, after the HiAce bus was transferred to Rosybarb, it was then to be operated by Mr Bhatt and Ms Vaidya who were to have a half share of the profits of its operation. Rosybarb would not have been entitled to, for example, take delivery of the bus and sell it for its value in a manner that would shut Mr Bhatt and Ms Vaidya out of the profit share that was part of that agreement. Any loss suffered by Rosybarb or Mr Chidiac could therefore be no more than the value of the HiAce bus after allowing for the present value of the amount that would be payable to Mr Bhatt and Ms Vaidya by way of their share in the profits that were to be obtained by Rosybarb operating that bus. Mr Chidiac did not seek to quantify his damages on that basis or lead evidence that would permit a quantification of damages on that basis by the Court.

83 For that reason, Mr Chidiac has presently not established the amount of his loss in respect of the non-delivery of the HiAce bus. However, it seems to me that the proper course is not to dismiss Mr Chidiac's claim for damages on that basis, but to allow the parties an opportunity to seek to reach agreement as to the calculation of that loss and, if they are unable to reach such agreement, to allow them the opportunity to lead further evidence and make further submissions as to that matter if they wish to do so. It should, of course, be recognised that the costs of a further hearing as to these matters may well not be justified for either party.

84 Mr Chidiac alternatively claims damages quantified as the amount of the payments made to AMI and others at Mr Bhatt's request in performance of that contract, namely, $60,855.64. However, that claim has the difficulty that Mr Bhatt partly performed the relevant agreement in transferring the shares in Rosybarb to Mr Chidiac, and Mr Chidiac presses (and has established) his title to those shares. Mr Chidiac cannot recover the purchase price he had paid under the alleged contract (here, largely by the payments made to AMI) unless he can establish a total failure of the consideration provided by Mr Bhatt, or, at least, that the consideration provided by Mr Bhatt could properly be described as de minimis: K Mason, JW Carter & GJ Tolhurst, Mason & Carter's Restitution Law in Australia, (2nd ed 2008, LexisNexis Butterworths) at [926]. The relevant principle was summarised by Mason CJ in Baltic Shipping Co v Dillon [1993] HCA 4; (1993) 176 CLR 344 at 350 as follows:

"When, however, an innocent party seeks to recover money paid in advance under a contract in expectation of the entire performance by the contractbreaker of its obligations under the contract and the contractbreaker renders an incomplete performance, in general, the innocent party cannot recover unless there has been a total failure of consideration. If the incomplete performance results in the innocent party receiving and retaining any substantial part of the benefit expected under the contract, there will not be a total failure of consideration."

Deane and Dawson JJ similarly noted (at 375) by reference to authority, and with the significant limitation to a total failure of consideration, that:

"... the receipt of a payment of money for a consideration which wholly fails "is one of the categories of case in which the facts give rise to a prima facie obligation to make restitution ... to the person who has sustained the countervailing detriment"."

McHugh J similarly noted (at 388- 389) that, where a payment of the fare for a cruise had been made in advance:

"Because the common law has no doctrine of apportionment in respect of a partial failure of consideration, [the plaintiff's] remedy in respect of [the defendant's] failure to complete the cruise was an action for damages for breach of contract and not an action for partial restitution of the sum paid as the price of the fare."

85 A total failure of consideration under the alleged agreement is not established where Mr Bhatt had caused the transfer of shares in Rosybarb to Mr Chidiac. Although there is no evidence as to the value of the shares in Rosybarb, it is likely that the value of those shares is more than de minimus, where Rosybarb presently holds three taxi licences and is capable of generating income from the Prius taxi owned by Mr Hastas and made available to it, although whether Mr Chidiac retains that value may depend upon whether he is ultimately able to become an authorised taxi operator in his personal capacity so as to allow Rosybarb to continue to utilise the licences held by Rosybarb in its corporate capacity. The Court could also not infer that the value of those shares was de minimis where the parties have devoted significant efforts to the debate as to their ownership.

86 Mr Chidiac also claims damages referable to loss of business income from Rosybarb, by reason that he has been unable to exercise control over Rosybarb, and contends that he has lost the profits that he could and would have made from Rosybarb from the period in which the shares were wrongly transferred to Mr Hastas and then Mr Bhatt. However, there is no evidence that Rosybarb was profitable or would have been profitable under Mr Chidiac's management in that period and that claim must fail for that reason.

87 The claim against Ms Vaidya in respect of the breach of the pleaded agreement must fail since there is no evidence that she was party to the pleaded agreement.

Claim in respect of $1072

88 Next, Mr Chidiac seeks an order that he be paid the sum of $1,072.02 relating to certain monies withdrawn by Mr Bhatt. That amount relates to goods purchased by Mr Bhatt or Ms Vaidya using Mr Chidiac's credit card, which he had made available to Mr Bhatt. Paragraph 28 of Mr Bhatt's Defence to the Amended Statement of Claim admits that he had made use of Mr Chidiac's credit card.

89 In closing submissions, Mr Bhatt and Ms Vaidya drew attention to a text message which they indicated, with some force, suggested that Mr Chidiac had given Mr Bhatt the pin for his credit card on 1 February rather than 16 February 2012. However, the date on which that number was given to Mr Bhatt is ultimately not a matter of significance in the proceedings, so far as it is plain that it had been given to Mr Bhatt and that the credit card was thereafter used by Mr Bhatt for the expenditures to which I have referred.

90 Mr Chidiac's evidence is that he became aware of the payments totalling $1,071.02 from his credit card when he received a statement for that credit card in late April 2012 and that Mr Bhatt indicated he would repay the money (Chidiac 23.9.13 [77]-[84]). Mr Chidiac's evidence is that Mr Bhatt promised to repay the amounts to Mr Chidiac but has not done so (Chidiac 23.9.13 [63], [83]). Mr Bhatt contended, in opening submissions, that the use of Mr Chidiac's credit card was carried out with his consent, and that most of the transactions related to fuel in respect of the transport of Mr Chidiac or other members of the WRLA to the stadium from which they played.

91 Mr Bhatt accepted in cross-examination that he made each of the transactions on Mr Chidiac's credit card that are the subject of the claim in these proceedings (T168). His evidence was that Mr Chidiac had given him his card to use for fuel some time in February (T169), on the same occasion when he was given the card for the purpose of payment of a deposit in the Toyota Yaris motor vehicle (T169). Mr Bhatt accepted that the conversation contained no reference to the use of the card in a pharmacy or at Australia Post, but claimed that Mr Chidiac had given him permission to use the card to renew his passport (T170). Mr Bhatt accepted that at the time of renewing his passport, he was in discussions with AMI about attending a trade show, which may have been in China, although he did not accept he was renewing his passport for that purpose (T171). Mr Bhatt accepted in cross-examination that his use of the card was on the basis that he would repay the money to Mr Chidiac and that it was essentially a loan (T174).

92 Mr Bhatt concedes liability to repay the amounts expended but claims that he had in fact repaid them in cash. His affidavit evidence was wholly unspecific as to when, and in what amounts, the relevant payments were repaid to Mr Chidiac. He referred to a document at Annexure "C" to his affidavit which appears to be handwritten notations which may or may not reflect money payments, but those notations do not, in themselves, establish the fact of any payment by Mr Bhatt to Mr Chidiac.

93 Mr Chidiac puts this claim as a claim for money wrongfully taken from him, or a common money claim for money paid for Mr Bhatt at Mr Chidiac's expense, or a common money claim for money lent to Mr Bhatt. Where Mr Bhatt acknowledges that the money was a loan to him, the only question is therefore whether Mr Bhatt's evidence that he has repaid those amounts should be accepted, and whether they are otherwise due if they have not been repaid. In Young v Queensland Trustees Ltd [1956] HCA 51; (1956) 99 CLR 560, Dixon CJ, McTiernan and Taylor JJ noted at 569-570) that:

"The law was and is that, speaking generally, the defendant must allege and prove payment by way of discharge as a defence to an action for indebtedness in respect of an executed consideration."

Their Honours also referred, with approval, to commentary noting that, once a debt had been established, it was presumed that it continued to exist unless there was evidence that it was discharged or otherwise extinguished. In the present case, Mr Bhatt accepts that the debt has arisen; there is a presumption that it continues; and I am not satisfied by Mr Bhatt's evidence that it has been repaid. There should be judgment for Mr Chidiac for that amount.

Other relief sought by Mr Chidiac

94 A claim for an accounting made by Mr Chidiac does not arise, since it was put in respect of the claims in conversion and in respect of involvement in a breach of fiduciary duty, which were brought in the alternative to the claims in respect of the ownership of Rosybarb's shares as to which Mr Chidiac has succeeded. Mr Chidiac's claim for exemplary damages is also not established, since Mr Chidiac does not contend that exemplary damages are available in respect of the claims under the Corporations Act or breach of contract for which he has succeeded.

Orders and costs

95 In closing submissions, Mr Bhatt and Ms Vaidya made a further submission that suggested that they might ultimately not oppose the rectification of the share register of Rosybarb or an order for repayment of the amount expended on the credit card (notwithstanding Mr Bhatt's evidence that he had previously repaid that amount, to which I referred above) as follows:

"Company transfer. He can have it back. He can ask [Mr] Hastas to continue, leasing his car to him. He can find another "operator" to run business. Ms Vaidya would kindly resign as Nominated Operator. [Mr Bhatt] will gladly resign director, give 100 shares without any money transfer or paid. Taxi plate lease, equipment will be returned to owners and/or networks. He can have de-registered car without taxi (fittings). He can ask for any forensic accounting. [Mr Bhatt] can give $1,000 for credit card use.

[Mr Bhatt] cannot give $60,855.64 that [Mr Chidiac] admits given to AMI directly or indirectly as [Mr Bhatt] have not got any cent out of this deal."

The Court does not have power to grant relief in that manner, as distinct from determining the causes of action before it.

96 Mr Chidiac has had some success in the proceedings against Mr Bhatt, so far as he has established his entitlement to rectification of the register to record that he is the director and shareholder of Rosybarb and to an order for repayment of the amounts charged to his credit card. I will hear the parties as to the orders that should be made in that regard and to give effect to any further agreement which can be reached between the parties as to the amount of damages recoverable against Mr Bhatt or any further hearing to determine that amount. Mr Chidiac's claim against Ms Vaidya does not succeed since she was not party to the pleaded agreement.

97 In closing submissions, Mr Bhatt and Ms Vaidya submitted that:

"As we were only 'defending' we cannot bear any Court cost or any legal fees."

The usual position, recognised by s 98 of the Civil Procedure Act 2005 (NSW) and r 42 of the Uniform Civil Procedure Rules 2005 (NSW) is, of course, that costs follow the event. However, the question of costs should be deferred until the remaining question as to the quantum of any damages recoverable by Mr Chidiac against Mr Bhatt has been established. It will also be necessary to have regard to the mixed result of the proceedings in determining the question of costs.

98 I will relist the proceedings so that these matters may be addressed.

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Decision last updated: 18 September 2014