Mr Ebbage also envisaged that the AE apply would offer his accountancy companies and lend money to the joint venture he fashioned with Mr Manthey. It seems that this did occur. As I have previously noted, Mr Ebbage’s dying in 1998 meant that the court docket was unable to listen to evidence from him as to what occurred.
On 1 March 1998, EOS transferred 5 shares in AES to Mr Alford for $5.00; PPG transferred 1,000 shares in AE to Mr Alford for $1,000; and Mr Ebbage transferred 500 A class shares in AE to Mr Alford for $1,000. I am ready to just accept this was, as was asserted by the plaintiffs in their submissions, as a result of Mr Ebbage was no longer in practice as an accountant. He told Mr Alford that he was travelling overseas shortly and at that time he would resolve the position with Mr Chiang and other investors and revert to Mr Alford upon his return.
They alleged that there was no contractual relationship of any sort between the plaintiffs or any of them and the Manthey pursuits. In their defence, the Ebbage interests mentioned that Mr Alford and Mr Ebbage agreed in or about May 1995 that funds already superior by AEF to AET could be handled as a mortgage by EOS to AET, and as having been loaned by AEF to EOS. Any further funds advanced by AEF to AET would be handled as a loan to EOS from AEF. They did not know on what phrases the loan by AEF to EOS was made, and subsequently whether or not or the way it was repayable, nor did they or the Manthey interests know whether or not the funds were sourced from the AE follow. The plaintiffs sought to make one thing of the problem of the discover of demand nevertheless it was clear in Mr Manthey’s evidence that he had no idea what a discover of demand was or meant. In April 2000, these proceedings were commenced by the plaintiffs towards Mr Ebbage Snr and HPM.
At a while throughout 1999, All Australian Racing Pty Ltd (“AAR”) was arrange for Mr Manthey by Mr Holmes. Mr Manthey was its solely director. AAR purchased plant and equipment from AET.
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From 1 March 1989, Mr Alford owned and operated the Southport practice as a sole trader beneath the business name, “Alfords”. Cranot Pty Ltd (“Cranot”) acted as the service supplier to the Southport practice, as trustee of the Cranot Trust No 3, a belief under Mr Alford’s management.
Documentation was ready and provided to Mr Ebbage to effect the transfer of any shares he could have held in those companies. While these paperwork were signed by Mr Ebbage prior to his dying, they were not witnessed and subsequently have not been lodged with any relevant authority. In about July 1996, Mr Ebbage advised Mrs Atkinson that he no longer felt the necessity to pay annual subscriptions to the Institute of Chartered Accountants in Australia. He requested his removal as a director and/or shareholder of all corporations related to the AE business. Mrs Atkinson mentioned that she saw no urgency within the task being accomplished though it was essential to be a member of the ICAA to be a director of the companies concerned within the AE business. Mr Alford stated he solely had contact with Mr Ebbage on an irregular foundation after April 1996 when the workplace which had been allotted for Mr Ebbage’s use at the Southport practice was allocated to a different workers member, when it appeared that it was not being used by Mr Ebbage. Chiang was now concerned and was funding every thing; that a brand new firm, Zeroprize, would replace AET; and that the new firm can be owned as to at least one-third by Mr Ebbage; one-third by Mr Manthey and one-third by Mr Chiang.
Whitewell was subsequently renamed AEH. The unit holders of PGEMT have been Ashtead Trust No 1 which held 60 per cent of the models and Highgain Trust No 1 which held 40 per cent of the units. The partnership was dissolved on 28 February 1989 after numerous disagreements between Mr Alford and Mr Ebbage.
Mr Alford mentioned he and Mr Ebbage agreed to invest $10,000 within the development of an engine prototype by Mr Manthey. At the trial, Mr Alford mentioned he was there referring to one of the many events on which he met Mr Manthey at his factory previous to September 1993. In paragraph thirteen, the words, “In or about September 1993, on the Practice workplace at 5/7 Hicks Street, Southport” were changed with the phrases, “On or about 27 October 1993, on the Practice workplace at Price Street, Nerang”. These changes conformed with Mr Alford’s sworn proof on the trial.
Mrs Atkinson attempted to explain the failure to provide paperwork in these proceedings by saying that Mr Ebbage had allocated to his sole use an office on the Southport follow till approximately May 1996. From late 1995 to May 1996, he could come and go from that workplace as he happy. She stated he was not, to her knowledge, ever questioned in relation to any documentation removed from the Southport follow. Until the top of 1997, Mr Ebbage had full entry to the premises of the Southport follow. Thereafter, Mrs Atkinson said, if he required any particular file, the partners decided that it should be reviewed by him at the Southport offices. She mentioned she turned aware that Mr Ebbage needed to take away certain statutory data related to the AE enterprise as he told her that he had “about 2 packing containers of stuff at the manufacturing unit and would drop them again”. That return didn’t happen.
In para fifty two of the statement of claim, the plaintiffs alleged that $A195,966.41 remained payable by AET to AEF. In their defence, the Manthey interests admitted that from July 1994, the funds recognized in Annexure “A” were utilized to the event of the interior combustion engine. They said that the funds have been superior by AEF to the Ebbage interests who in flip contributed such funds by the use of enterprise capital by the Ebbage interests to Mr Ebbage’s partnership with Mr Manthey. As contributions to the partnership, the funds, when paid by the Ebbage pursuits were not repayable to the Ebbage pursuits, such funds having been contributed as three way partnership capital to the partnership. It is not essential or even fascinating to characterise the character of the payments by EOS to AET as there was no issue joined between them in these proceedings. The plaintiffs alleged that from July 1994 and never withstanding that the joint venture had not been totally documented, AEF superior funds sourced from the apply to AET for the needs of the joint venture.
There have been many plans and proposals as to how and through which entities this might occur although in the end none of them came to fruition. Mr Diamond said that formal documentation was to be prepared to replicate the two joint ventures. He stated an organization representing his shopper’s interests was to take a share within the joint venture given its speculative nature, rather than merely financing the undertaking. Whatever preparations have been made, Mr Diamond didn’t regard himself as sure to enter into any formal settlement. He stated that when he swore that affidavit he had no recollection of the meeting on the Nerang practice at which the two August 1993 settlement was reached.
This proof was not objected to, and neither was Mr Ahearn cross-examined on this level. Mr Kenny was aware that if the accounting follow of Mr Alford and Mr Ebbage had been to break up, it was important that this break up not undermine the corporate structure of the three way partnership.
This lack of candour, of which this is however one instance, underscored the peril of counting on his testament as to the nature of his alleged interest in the three way partnership settlement. Mr Alford said that Zeroprize got here into existence on Mr Diamond’s instructions in early to mid-1996. There was, based on Mr Alford, an settlement whereby Zeroprize took an interest within the second engine (“the Zeroprize settlement”) rather than Chancetest’s interest in the first engine.
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A new contract was drawn up by one other firm of solicitors. In attempting to elucidate his sworn assertion that the “Southport follow generated fees in excess of $1,000,000 per yr” as at March 1993, Mr Alford pointed to a reconciliation of income to 30 June 1993 which revealed internet revenue of $317,053.11.
He stated that this was Mr Ebbage’s responsibility. Nonetheless, he by no means raised with Mr Ebbage why the documentation had not been concluded. This was to my mind according to what occurred.
The settlement was executed by Mr Manthey, by Mr Ebbage and Mr Manthey on behalf of AET, and by Mr Ebbage and Mrs Ebbage on behalf of EOS. All signatures were witnessed by Mrs Atkinson. Mr Alford denied having seen this doc. Mr Alford stated he believed that EOS was made the three way partnership participant for the purpose of depriving him of his curiosity within the three way partnership. EOS was a company in which Mr Alford had an curiosity in that Dario was a potential beneficiary beneath the discretionary trusts of which EOS was the trustee, but the company was under the control of Mr Ebbage. Although the statement of claim alleged that the ultimate proposed documentation of the joint venture was not delivered to Mr Manthey and Mr Ebbage till October 1995, Mr Alford’s affidavit proof was that documents in final type were delivered by Mr Reynolds in June 1995.
Notwithstanding all of that, Mr Ebbage conveyed his willingness to persevere with AET and that the issues might be solved, although time and prices have been continuing issues to him. On thirteen November 1996, ASIC was notified of a fixed and floating cost over the belongings of AET to safe a legal responsibility of $1,050,000 in favour of Enburg International Development Co Ltd, a Taiwanese firm (“Enburg”). ASIC was notified of the discharge of that liability on 16 February 1999. AET agreed to pay Enburg $A150,000 on or before 13 November 1996 and the rest of $A1,050,000 inside 8 months to be secured by a mortgage debenture creating a fixed and floating cost over AET’s belongings.