New South Wales District Court CITATION: Deputy Commissioner of Taxation v Kocic [2010] NSWDC 185 HEARING DATE(S): 9-10 February 2010; 12 March 2010; 12 April 2010; 31 May 2010; 1 June 2010; 23 July 2010; 12 August 2010; written submissions to 17 August 2010 JUDGMENT DATE: 30 August 2010 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ (1) Judgment for the plaintiff for $532,043.42. (2) Defendant pay plaintiff's costs. DECISION: (3) The parties have leave to file short minutes of order reflecting the mathematically agreed sum of principle and interest. (4) Liberty to apply in relation to interest and costs. (5) Exhibits retained for 28 days. CATCHWORDS: TAXES AND DUTIES - income tax and related legislation - whether the defendant was a director so that he became liable for a penalty under s 222AOB Income Tax Assessment Act 1936 (Cth) - verdict for the plaintiff Australian Securities and Investment Commission Act 2001 (Cth), s 11(4) LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 100 Corporations Act 2001 (Cth), ss 9, 102F, 102G, 102H, 201D, 248B, 251A and 1322(4) Income Tax Assessment Act 1936 (Cth), s 222AOB CASES CITED: Deputy Commissioner of Taxation v Lesley Frances Robertson [2009] NSWSC 597 Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278 PARTIES: Plaintiff: Deputy Commissioner of Taxation Defendant: Senad Kocic FILE NUMBER(S): 320412 of 2008 COUNSEL: Plaintiff: Ms S Foda Defendant: Mr J Johnson SOLICITORS: Plaintiff: ATO Legal Services Branch Defendant: ERA Legal JUDGMENT Introduction [1] The plaintiff by further amended statement of claim filed on 17 February 2010 brings proceedings against the defendant, arising from the failure of Zumuda Pty Ltd (ACN 114 456 049), a company previously known as Civil Pacific (Traffic) Pty Ltd and before then Civil Pacific (Vic) Pty Ltd, to remit moneys due under its taxation obligations. [2] When the matter first came before me for hearing, the plaintiff and defendant, who were both represented by experienced counsel in this field, adjourned the hearing so that each could substantially revise the pleadings to reduce the issues in dispute to the factual issue of whether the defendant was a director of this company (plaintiff's submissions in reply, paragraph 1). The issues in dispute [3] There is no dispute that the company was incorporated, that the records of the Australian Securities & Investments Commission ("ASIC") indicate the defendant was appointed a director of the company on 23 June 2006, that it was open to the defendant to make an application under s 1322(4) Corporations Act 2001 (Cth) or s 11(4) Australian Securities and Investment Commission Act 2001 (Cth) and/or in the Supreme Court, for relief concerning this appointment and did not do so. There is no dispute that the company withheld the amounts claimed and that the defendant did not comply with s 222AOB of the Income Tax Assessment Act 1936 (Cth) (hereafter referred to as "the Act"), or as to the quantum of the claim or the defendant's postal address. [4] Essentially, the issue is whether the defendant was a director of the company. It is not in dispute that the onus in such a case shifts to the defendant to overcome the ASIC records concerning his appointment as a director. [5] What is the defendant's challenge to these documents? This was helpfully summarised by the defendant in written submissions as follows: "It is submitted that there is no evidence which would lead the Court to disbelieve the evidence given on behalf of the defendant as to the circumstances under which he is recorded as having been appointed a director of [the company], or is said to have been a person who conducted himself in a manner which would make him a deemed director within the definition of "director" set out in s 9 of the Corporations Act 2001." [6] By reason of the pleading amendments narrowing the issues and the consequential adjournment of the case, a further hearing date had to be selected. Unfortunately, as a result of other hearings running longer than the time estimated by the parties in those proceedings, there has been delay in the resolution of these proceedings. That delay is no fault of the parties in these proceedings. [7] The oral and written evidence relied upon by the parties in these proceedings is listed in the defendant's written submissions at paragraphs 5 and 6. I have had regard to that evidence and to the documents in the agreed tender bundle, as well as the facts and matters set out in the pleadings, including a Reply filed on 9 April 2010 in response to the further amended defence filed on 23 March 2010. [8] I shall first briefly set out the relevant facts. The plaintiff provided a helpful chronology, cross-referencing the documents and affidavit evidence, and I note that much of the factual background is not in dispute. The setting up and organisation of the company [9] In 2005, Mr Nedzad Kocic, the defendant's brother, bought a labour hire business in Queensland, together with a Mr Dennis Xenos. They were already running a traffic control business called "Civil Pacific" at this time, and they retained a consultant, Mr Scott Turner. A business called "Zenith Workforce Pty Ltd" was registered on 19 January 2005 and on 14 March 2005, Dennis Xenos was appointed a director. When these events were occurring, the defendant was absent overseas on an extended honeymoon. [10] On 26 May 2005 Civil Pacific (Vic) Pty Ltd was registered. Dennis Xenos was appointed as a sole director and secretary of this company (see Exhibit 2, pages 2, 3, 48 and 49). What the defendant contends is that in June 2006 there was a decision that Dennis Xenos would resign and the defendant would be appointed a director of Zenith Workforce Pty Ltd and of the company whose failure to remit moneys due to its taxation obligations has led to these proceedings being brought against him. [11] On 23 June 2006, a solicitor named Chris Tsovolos sent an email to Mr Xenos and to a Mr George Alex that stated: "I have attached various documents for you to sign which provide for your removal from the trustee companies and the introduction of Senad". [12] The nature and extent of any retainer between Mr Tsovolos and the defendant was a disputed issue of fact in these proceedings. It was the case for the defendant that, at the time that this email was sent, he had never had any prior dealings with Mr Tsovolos, and had never even met him. It should be acknowledged in the defendant's favour that Mr Tsovolos, who was called by the plaintiff in reply, was very vague about his prior association with the defendant at all relevant times. [13] However, the documents produced by the Argyle Partnership (tendered as Exhibit B) provide documentary evidence which contradicts the defendant's evidence. These documents, which include correspondence, memoranda of fees, diary notes and authorities to act, show that Mr Tsovolos and the law firm he worked for, the Argyle Partnership, had acted for the defendant and his family for some years prior to the events in question. [14] I shall not set out all of these documents, which are numerous, but some of the documents in Exhibit B are: (a) A Change to Company Details, dated 26 February 2004, referring to "Senad Kocic" and giving his date of birth (6 September 1977) (page 3 of Exhibit B). (b) Documents headed "The Argyle Partnership Client's Form" for "Senad Kocic – Existing – Loan from your Parents". This document is dated 15 September 2005. The use of the word "your" indicates that the defendant is their client, which is confirmed by other documents relating to this transaction. (c) A second document dated 15 September 2005 for a client described as "Senad Kocic Existing", relating to a "purchase at Rydalmere". These documents include a declaration by the defendant in relation to a loan from his parents dated 23 September and some instructions dated 21 September 2005. (d) Mortgage documents, with the defendant as mortgagor and the defendant's parents as mortgagee, dated 23 September 2005, as well as an authority to complete and an undertaking to the defendant's parents for the loan. I note that one of the documents in this file is a letter from the Argyle Partnership to Blake Dawson Waldron which commences: "We act for Senad Kocic". The defendant signed an authority on 4 October 2005 and there was a solicitor's certificate evidencing Senad Kocic had a conference with a Mr Smits of the Argyle Partnership on that day. (e) There are a number of internal documents created for billing purposes which refer to telephone calls to the defendant as well as documents signed by him. [15] Although I have not set out the complete list of all of the documents in Exhibit B, I am satisfied there is ample documentation to show there was a prior professional relationship between the defendant and the Argyle Partnership. This is relevant as the likelihood of Mr Tsovolos making a mistake about who the defendant was is considerably less if he knew or had met the defendant, by reason of this professional relationship. [16] Then, on 23 June 2006, Mr Tsovolos sent a further email to Dennis Xenos and George Alex, attaching a document entitled "Letter of appointment" for the defendant in relation to the company. The text is as follows: " LETTER OF APPOINTMENT Mr Senad Kocic 8 Abbey Street HUNTERS HILL NSW 2110 Civil Pacific (Traffic) Pty Limited (CAN 114 456 049) hereby appoints Senad Kocic as a Director and Secretary of Civil Pacific (Traffic) Pty Ltd effective from the date this letter is signed. __________________ [signed: S Kocic] Date: 23/06/06" [17] A fax line at the top of the page shows the document was faxed by the Argyle Partnership on 27 June 2006 as page three of an 8-page fax from Mr Tsovolos to the Australian Taxation Office. [18] Not only did the defendant sign the letter of appointment in relation to the company (Exhibit 2, page 62), Mr Dennis Xenos resigned (Exhibit 2, page 61) and the notices of appointment of Argyle Partnership as the legal practitioner for the company and Zenith Workforce (NSW) Pty Ltd, in relation to the Australian Taxation Office ("ATO") were also included in the same facsimile to the ATO. Mr Tsovolos confirmed in the covering letter that Mr Dennis Xenos had also resigned as director of Zenith Workforce (NSW) Pty Ltd (Exhibit 2, p. 60). This was, of course, because he had been replaced by the defendant, if these documents were correctly prepared. [19] The first point to note is that there is no challenge to the accuracy of any of these other documents, or to the retainer to Mr Tsovolos to act on behalf of the company, or to his obligation to notify the ATO that Mr Xenos had resigned, and who would be the new director (i.e. the defendant) in his place. [20] The second point to note is that the defendant does not deny that this is his signature. What he has said is set out in his affidavit at paragraphs 43(e) and 43(f) as follows: "(e) As a result of my practice in this regard, I am often given documents by third parties to sign. (f) Sometimes I will read these documents over before I sign them, however sometimes I will simply sign them and ask the relevant person to deal with them for me." [21] He explained this was his signature in cross-examination as follows: "HER HONOUR Q. Well which one? I mean look at the first one it's dated 23 June on page 62, so is that your signature? A. Yes it is. FODA Q. And on page 64? HER HONOUR Q. No, no, because there are two we'd like to hear from-- A. Two look different, both times they look different, like they are not exactly the same. 64-- Q. As each other or— A. Yeah maybe 64 looks more like mine and page 62, I couldn't tell you. It was a long time ago if they put something in front of me, signed it, I'm not sure. FODA Q. And when you say someone put something in front of you who do you think that may have been? A. One of - either Dennis Xenos or my brother, I'm not sure. (T-17) … FODA Q. We're at page 14 Mr Kocic. A. Yep. Q. You'll see that that's a document entitled to Iznic Kocic and Fatima Kocic? A. Yep. Q. You'll see there the signature at the bottom of the page? A. Yep. Q. That's your signature isn't it? A. Yep. Q. And that's dated 23 September 2005? A. Yep. This document came home to me. I'll just answer this one, this document came home and my brother and I signed it. So again I never deal directly with Chris Tsovolos for this as well. Q. But you knew Argyle Partnership-- A. no, I don't know who Argyle Partners are. Q. --were preparing the documents? A. No, I do not know. My brother came to me, this was five, six years ago, I was very young then as well. He brang me documents and I signed them for the development that we were doing. Q. And what did he say to you when he gave you the document? A. This was to borrow money off my parents' house, this document. Q. And is it your usual procedure to have your brother explain documents to you? A. Because I was overseas, I got married overseas, I'd just got back, I think I was back for a couple of months, so they were already in the motion doing things, so-- Q. So it would be a usual procedure for you to have your brother give documents to you to sign? A. Before it was. Not any more after this stuff. Never again. It won't happen again. Q. So what you're saying is that your brother gave you the documents in these proceedings for you to sign? A. For these ones, yes, I think so, yes." (T-25) [22] The next link in the chain is that on 26 June 2006 the documents appointing the defendant as a director of the company and Zenith Workforce (NSW) Pty Ltd were sent a second time (Exhibit B, pages 112-134) and the defendant signed the notice of appointment for Zenith Workforce (NSW) Pty Ltd. [23] The following day, the Argyle Partnership forwarded the executed documents to the ATO indicating the changes in directorship and also the appointment of their firm as the legal representative. The ATO and Mr Tsovolos were engaged in negotiations about payment of the company's outstanding debt to the ATO. [24] This remains the situation in relation to the company for some time. On 10 August 2006, Chris Tsovolos of the Argyle Partnership advised the ATO that the defendant "is acting in a totally independent way" (see Exhibit A, the affidavit of Marilyn Corrigan, 4 August 2009, annexure "C", page 70). [25] On 25 August 2006 Chris Tsovolos had a conversation with Mr Sam Elmir. He sent a letter dated 28 August 2006 (Exhibit B) in which he confirmed that conversation, including the recommendation that: "Senad Kocic remain as a director until the ATO payments are made, and then Senad resign as a director of Civil Pacific (Traffic) Pty Ltd". [26] If the defendant did not want to be a director for any reason, it would have been a simple matter to have his name removed. In fact, Scott Turner, the business consultant (who had been involved in these businesses since the beginning of 2005 at least) did remove the defendant as a director of another company, Nehaye Pty Ltd (ACN 114 455 999) which was formerly Zenith Workforce (NSW) Pty Ltd on 7 July (see the affidavit of Ms Corrigan at pages 9-10). An essential part of the defendant's argument is that he was appointed a director without his knowledge, and that this was a continuing process of incompetence, deception or both, by the other persons involved, including his brother and Mr Tsovolos. [27] The day after his letter of 28 August 2006, Mr Tsovolos had a conference with the defendant's brother, Nedzad Kocic, and George Alex to discuss funding issues and in particular the ongoing negotiations with the ATO about outstanding taxation obligations. As is set out in more detail below, this included a consideration of the ongoing role of the defendant until the ATO tax problem was resolved. [28] After these discussions, Chris Tsovolos continued to negotiate with the ATO in relation to the companies' tax liabilities. [29] On 10 October 2006, documents were lodged with the ASIC recording that Mr Xenos ceased to be the sole director and secretary of the company and the defendant was appointed (Exhibit 2, pages 2, 3, 51, 52 and 53). This appointment had in fact occurred on 23 June 2006. [30] Following what appears to have been a breakdown in the negotiations between the company and the ATO, the ATO sent two letters to the Argyle Partnership in relation to the liabilities for two companies. The first of these was the Zenith Workforce Unit Trust, and the second was the company whose failure to remit moneys due under its taxation obligations has led to these proceedings against the defendant. These letters are set out in Exhibit B at pages 170 to 171. [31] On 14 November 2006, Argyle Partnership notified Mr Nedzad Kocic by SMS that the defendant might be personally liable for the tax debts of the company. The following day, Nedzad Kocic was appointed director of Zenith Workforce (NSW) Pty Ltd and the Argyle Partnership forwarded the ATO's letters of 13 November 2006 to the defendant at his home address, which I note is the same address as that of Mr Nedzad Kocic. [32] The defendant says he was first aware he was noted as a director of the company when he received this letter on 16 November 2006. He telephoned his brother, Nedzad, and yelled at him for "putting him on as a director of the company". That same day he telephoned Scott Turner, to complain about being a director of the company. [33] The following day, Mr Turner, as he had done for the defendant in July, as well as the accountant for the company, amended the ASIC Register to indicate that the defendant had resigned on 28 August 2006. This appears to have been intended to show that the defendant was not a current director at the time that the director penalty notice was issued. It was clear from the evidence that both the defendant and Mr Turner appeared to believe that as long as the defendant was not a current director at the time of issue of the director's penalty notice, he would not be liable. I have set out the evidence on this issue, including the telephone conversation between Ms Chung and the ATO, in more detail below. [34] On 17 November 2006, documents were lodged with the ASIC recording that the defendant was no longer the sole director and secretary of the company, and that Nedzad Kocic held these roles. [35] On 29 November 2006, the plaintiff sent director penalty notices to the defendant, which he received on 1 December 2006. [36] On 1 December 2006, Ms Chung, an employee in the office of Joseph Saul, acting on behalf of the defendant, telephoned Ms Merilyn Corrigan of the ATO and, according to the affidavit of Ms Corrigan (and the ATO's history sheet), the conversation was as follows: Ms Chung: "Senad faxed a copy of both directors penalty notices to me today." Ms Corrigan: "Had he received them today?" Ms Chung: "Yes, Senad said that he should not have received a notice as he was not a director, that it was his brother Ned who was the current director." Ms Corrigan: "A notice can be issued to current and past directors. A new director has 14 days in which to cause the company to comply. In Senad's case I have documentary evidence that showed he was appointed on 23 June 2006 and didn't resign until 28 August 2006. Therefore he is a director from who the Commissioner can recover the penalty. Whichever option Senad chooses, he has to have it completed within 14 days, being 15 December 2006." Ms Chung: "What about an arrangement?" Ms Corrigan: "I am loathe to consider that option because of the company's compliance history and current behaviour. I recommend that Senad speak to the solicitor who handled his appointment as a director, and to his brother. Senad was the new director involved at the start of the payment negotiations for the company debt." [37] The plaintiff relies upon this conversation as evidence of the defendant having the mistaken belief that a back-dated resignation would be sufficient for him to avoid liability. [38] I note some differences between Ms Corrigan's explanation in her affidavit of this conversation and her file note in the ATO history sheet. It goes a little further than the file note, in that she told Ms Chung that she had documentary evidence to show that the defendant was appointed on 23 June 2006 and did not resign until 28 August 2006, so he was therefore a director from whom the Commissioner could recover the penalty. Ms Chung's response to that was to ask about an arrangement, which Ms Corrigan said that, given the previous compliance history, and current behaviour, she was reluctant to recommend. She suggested that the defendant should speak to the solicitor who handled his appointment as a director, and also to his brother. She noted that the defendant was "the new director involved at the start of payment negotiations for the company debt". [39] On 5 December 2006 Ms Corrigan noted that Mr Tsovolos has been "approached by Senad Kocic regarding the DPN" and that Mr Tsovolos said that "Ned Kocic will be resigning as the director and Sam will take his place". Again, these are extracts from Ms Corrigan's affidavit. The evidence of the defendant [40] In written submissions, counsel for the defendant summarises the relevant evidence, following which I have noted some of the conflicting evidence: (a) Mr Kocic stated that prior to the conference after receipt of the directors' penalty notice, he had not met with Mr Tsovolos before (T-21-22). I have set out above some of the documents from the Argyle Partnership file showing that the firm did in fact act for the defendant for some time beforehand, whether or not Mr Tsovolos actually met him. He was an existing client of the firm. (b) The contact telephone number recorded for the defendant was in fact the telephone number for Mr Nedzad Kocic (T-23). However, the documentary evidence in Exhibit B makes it clear that the Argyle Partnership not only could, but did, telephone the defendant without any difficulty on many occasions. For example, at page 151 of Exhibit B, there are entries concerning telephone conversations with the defendant (admittedly concerning other matters) for which a bill was to be sent. A total of five telephone calls are referred to on page 3 of the itemisation for the bill dated 26 August 2006, which is at the same time that many of these other discussions were taking place. (c) Nedzad Kocic had a power of attorney in relation to prior dealings in real estate (T-27). This is correct for an earlier period in time, but after the plaintiff's return to Australia in May 2005, there is no suggestion that he was relying on his brother to exercise a power of attorney in relation to his business activities. (d) The defendant was never intended to be a director of the company (T-29). This is dealt with in more detail below. (e) The ASIC records were changed after discussion with Scott Turner in respect of the company (T-35, 48 and 50). This is correct, but it does not assist the defendant, in light of the correspondence between the Argyle Partnership and the ATO and ASIC, unless I uncritically accept the evidence of the defendant and Mr Turner. For reasons set out in more detail below, I have not done so. [41] The defendant submits that the following is significant: (a) There is no minute of meeting of the director of the company evidencing the decision to appoint the defendant, contrary to ss 102F, 102G and 102H, Corporations Act 2001. (b) Contrary to s 201D, Corporations Act 2001 there is no consent to act as director signed by the defendant in respect of that resolution (ss 248B and 251A, Corporations Act 2001). (c) Mr Tsovolos was liaising on behalf of the company and he reported to Dennis Xenos, George Alex and Nedzad Kocic, not the defendant. (d) Chris Tsovolos did not, prior to November 2006, seek to communicate with the defendant (which I interpolate to mean in writing) relating to the affairs of the company. (e) The defendant was unaware that he was the director of the company and did not know what the company was doing. (f) He did not take any part in the management of the company. [42] I shall now consider in detail the evidence for the defendant by the other witnesses he has called. Evidence of Mr Nedzad Kocic [43] Although the defendant relies upon the absence of any minute of meeting of director of the company evidencing the decision to appoint him, or consent to act as a director (see the defendant's list of submitted points set out at [40] above), the same is the case for Mr Nedzad Kocic, who does not provide any documents relating to his appointment. Nor are there any independent records produced by third parties, such as documents he has executed in his role as director of the company. Nor did any other witness produce evidence concerning Mr Nedzad Kocic's role as the director of the company, as counsel for the plaintiff points out in her submissions in reply. [44] Counsel for the plaintiff points out that persons who could have been called by the defendant (notably Dennis Xenos, and the accountant, Mr Joseph Saul) were not called, nor were documents produced by the Argyle Partnership, or Bartier Perry, the two law firms engaged by Mr Nedzad Kocic. [45] When cross-examined about his role in the company, and the lack of documentation, Mr Nedzad Kocic was very vague: "Q: Now Mr Kocic, you say that you became a, a director of Civil Pacific? A: That's correct. Q: Did you execute any documents in relation to your appointment as a director of Civil Pacific? A: Yes, I gave it to – I think the Zenith lawyers done [sic] it, I'm pretty sure with [sic] Chris Tsovolos, I can't remember who I done [sic] it with but I did so – I did sign over to be a director? Q: Who prepared the documents, do you know? A: Darling [sic], I'm not sure. I don't know if it was Tsovolos' company." (T-93) [46] He went on to say: "I can't remember, I just can't remember" who created the documents to appoint him a director (T-95). [47] He agreed there were no documents attached to his affidavit and said: "It could be Argyle's or it could be Xenos' accountants, one of the two, I can't remember". [48] The Argyle Partnership provided all of its documents under subpoena and if such documents existed, it would be surprising if they were not included. [49] Mr Nedzad Kocic then changed his evidence concerning who appointed him as a director of the company and said that it was Mr Scott Turner: "I signed it all, the paperwork, I remember signing all that, gave it to – I think I gave it to Scottie, okay. I, I'm not like a hundred per cent, I can't remember everything, but Scottie Turner was involved in that one, because he was the man that looked after it." (T-116-117). [50] However, not only is this inconsistent with the evidence of Mr Scott Turner, who denied playing any part in the preparation of documents concerning the restructure (T-66) but Mr Turner's lack of documentation was such that he did not even keep his own records in any organised fashion, as he conceded at T-64-65, where he admitted that while he probably kept some sort of diary: "It would be fair to say that I'm not the most organised human being when it comes to looking after my own issues. Generally speaking, most of the work and the things that I do tend to be more verbal strategic type stuff and that I'm probably a little bit less, much better now. I do everything on Outlook now. Hence, I had my own visit from the tax man and he told me that I need to start to be a little bit more –" (T-64-65) [51] Mr Nedzad Kocic contradicted himself on a number of issues. For example, he claimed that the reason that Dennis Xenos could not be of assistance was that he had a falling out with him in 2006 and that after that he had nothing to do with him, adding "We are not on speaking terms" (see his affidavit of 7 November 2009 at paragraph 7). [52] In fact, Mr Xenos continued as a director until 19 February 2007. Mr Nedzad Kocic said, in his evidence, that if Mr Xenos had remained as a director "I wasn't talking to him anyway" (T-88). He then went on to say that he did not know if Mr Xenos was a director and did not know that they were dual directors, claiming "I don't understand that" (T-91). He said that Mr Xenos never got involved after he went bankrupt. [53] He then contradicted himself and said that Mr Xenos did not resign, adding "Well I don't know, he should have resigned, he should have resigned. So what's the big deal now?" (T-92) [54] At T-93, the following exchange occurred: "Q: Mr Kocic, you didn't have a falling out with Mr Xenos did you? A: Yes I did. Who are you to say I didn't? Q: And Mr Kocic, in fact if you had a falling out with Mr Xenos- A: Yeah. Q: You would have disassociated in relation to this company as well, wouldn't you? A: I did. I never saw him, when I took over Civil Pacific, I never saw him again. Q: If he had resigned in relation to Civil Pacific, he would have resigned in relation to this [company] if it was due to a falling out? A: Maybe he did but I can't remember – I can't remember that he had no – nothing to do with Zenith, when I took over Civil Pacific, he had nothing to do with nothing else, no other company." [55] However, later in the cross-examination Mr Nedzad Kocic changed his evidence once again, when he was asked how it was, if he was not speaking to Mr Xenos, that he knew that Mr Xenos received a director penalty notice. He replied: "Cause I probably rang him up and blew him up, I said "What's going on here?" (T-99): "Q. But Mr Kocic, you've just told us that you didn't speak to Mr Xenos? A. See, memories come back when things like that come up. I've got nothing to hide. He received, I received the same thing. Q. Mr Kocic, you've just said that you weren't speaking to him and now you say you were speaking with him? A. I'm telling you, we didn't have a fight, I just didn't like the person and I stopped calling him, and now that that's come up I recall that he told me that he received the letter from the Tax office for half a million dollars too, okay. But, in the last 3, 4 years I've probably spoken to him twice, and I've not seen the bloke in two years. I've not spoken to him in two years. This is all prior to two years ago that I've spoken to him or seen him. (T-100) [56] Mr Nedzad Kocic's evidence concerning his lack of awareness that the defendant was a director of the company is similarly unconvincing: "Q. Mr Kocic, did you have a conversation with your brother on or about 16 November 2006? A. First time I had a conversation with my brother regarding this matter was when I got the penalty notice in the mail, so whatever date is on that penalty notice that's the day I spoke to my brother. That's as clear as I make-- Q. So you didn't have a conversation before you received the director penalty notice about this? A. No, I can't recall that, no. Q. So you don't recall your brother ringing you and shouting - I withdraw that. Ringing you and shouting at you saying "What the hell is going on, why have you put me on as a director of your company?", you don't recall that? A. Actually I might, I might recall that actually. I don't know, I can't remember, I might recall it, possibly. I can't - it was all very close. We're talking four years now, more than four years ago, so it might've - it all happened around the same time with a penalty notice. I remember acting on it. I remember sending letters to the Australian Taxation Office. I got Scott Turner to send a letter to the Taxation Office, stating what's going on, why is he - because I remember telling him about it. Because I was so busy, I was running around trying to run a business, Civil Pacific and Senad - my head was everywhere. So I never thought this was a problem, because my brother was never involved in the business, so I can't understand what's going on. Q. Mr Kocic, why would your brother have blamed you for his appointment as a director of the company? A. He might've thought that I put him on but I didn't. It was supposed to be me. Nedzad Kocic, not Senad Kocic. Q. Why do you think he'd assume you put him on? A. I don't know. Probably, I don't know why. Q. Has it ever happened in the past? A. No. Not that I recall anyway. Q. So is that-- A. Why would I put someone's name without permission anyway? Q. So are you saying you don't recall, or it didn't happen? A. No, I've never put my brother's name without him knowing about it, or him coming in as a partner. Not for the companies, no." (T-103-104) [57] In cross-examination about the SMS sent to Mr Nedzad Kocic on 14 November, he agreed that he knew on 14 November that the defendant would have a personal tax liability as a consequence of the tax owed by the company: "Q: Mr Kocic, you received notification – you received a copy of this SMS on 14 November which told you at least from that point your brother was a director of Civil Pacific? A: Yes I can't recall the time of this SMS but I recall – no, no, I didn't – I don't recall, no. I recall when he was put [sic] director when I got that penalty notice, that's the first time, because me and my brother both freaked out about it. That's the first time I recall he'd been a director. When you said … - when you said me and my brother … a penalty notice, that's when I found out about it." (T-102) [58] However, Mr Nedzad Kocic was then taken to the letter of 28 August 2006, in which Mr Tsovolos stated that Mr Senad Kocic was a director of the company as at that date. Mr Nedzad Kocic agreed that he had a conference with George Alex and Chris Tsovolos the following day, 29 August, in the course of which they were discussing the tax liabilities of the company. He attempted to say that this meeting must have been "at the same time we received a letter from the Taxation Office at my Dad's place" (T-110) and when it was drawn to his attention that this meeting took place on 29 August 2006, which was well before he was notified on 14 November 2006, he interrupted the question, as follows: "Q: Mr Kocic, this meeting took place on 29 August 2006. You will recall I showed you a note which indicates that you were notified on 14 November that Mr Senad Kocic would have personal liabilities in relation to Civil Pacific tax issues, and that was found at page 175. You've known for some time that Mr Senad Kocic – A: We sent letters to the ASIC. Q: - was a director of the company? A: Okay, what do you want me to say?" (T-110) [59] Mr Nedzad Kocic said this in a very belligerent and angry tone. [60] It must be recalled that the defendant blames Mr Nedzad Kocic for his appointment, and for a period of time prior to the amended pleadings, the question of whether or not the signature was a forgery was a live issue in the case. I have been careful to put from my mind the fact that this allegation was ever brought, but the explanation for the defendant signing the document remained vague. [61] Mr Nedzad Kocic was asked, at T-104, about why the defendant would assume that he, Mr Nedzad Kocic, was responsible for this: "Q: Why do you think he'd assume you'd put him on? A: I don't know. Probably, I don't know why." [62] Mr Nedzad Kocic said that because he had power of attorney, that he thought that some error might have occurred at Argyle Partners (T-73). This was not put to Mr Tsovolos in cross-examination. In addition, it is implausible, given the length of time and number of transactions involving the defendant and Argyle Partners, that Mr Tsovolos would make such a careless mistake, particularly given the care with which he prepared the other documents, the absence of other similar mistakes in any other transactions, and the consistency with which the defendant is referred to by Mr Tsovolos in his correspondence and conversations between June and August. [63] Mr Nedzad Kocic said he could not remember whether the defendant gave instructions to Argyle Partnership to act in transactions, and said he was the only contact with the Argyle Partnership (T-114-115). [64] In written submissions (pages 11-13), the defendant has summarised some of the less contentious issues arising from Mr Nedzad Kocic's evidence. The first five points relate to whether or not Mr Nedzad Kocic was a director and was running the business, and points 6 and 7 note his denial of awareness that the defendant was appointed director, and refer to the fact that the defendant was not present at the 28 August meeting. [65] However, Mr Nedzad Kocic's evidence concerning the meeting on 29 August 2006 is implausible. He says he does not think that Sam Elmir gave him the letter of 28 August, although clearly the matters discussed at the meeting on 29 August were the issues raised in the 28 August letter. His claim in his evidence that the meeting occurred at about the same time as the letter from the Taxation Office is clearly wrong (see [66] below). [66] Finally, no plausible motive can be put forward for the preparation of these documents and their signing by the defendant, in circumstances in which Mr Nedzad Kocic can be blamed. [67] Mr Nedzad Kocic was an unimpressive witness. When confronted with the obvious error he made, concerning the 29 August meeting, he became angry and shouted at counsel for the plaintiff: "Okay, what do you want me to say?" (T-110). [68] The internal inconsistencies in his evidence and the inconsistency between his account of events and the objective evidence of correspondence between the solicitors who were acting for him and the Australian Taxation Office, means I should not accept his evidence unless that evidence is corroborated by a witness of credit. Evidence of Mr Scott Turner [69] Some of the poor record-keeping by both the defendant and Mr Nedzad Kocic, can probably be attributed to their business adviser, Mr Scott Turner, whose own lack of any competent filing system or documentation system was the subject of some admissions (at T-64-65). He had no documents whatsoever. [70] Mr Turner said he gave advice about the restructure of the company, and said that that was the end of his involvement in the matter (T-66). He did not know whether that advice had been followed, or whether there was a change in what was proposed to be done with the company. [71] Mr Turner was responsible for visiting the accountant's office and instructing the accountant's staff to lodge documents to remove the defendant's name as a current director of the company. [72] When asked if he had telephoned Mr Nedzad Kocic, to confirm if this was the right thing to do, he gave an evasive answer before asserting that 'she', namely a female employee of the accounting firm, had done so, according to his belief. He agreed that this was not in his affidavit. [73] The defendant's written submissions referred to the defendant's evidence that contact with him for the removal of the name of the defendant, from the company, was "out of the blue" (T-67). However, as the plaintiff points out in submissions in reply (paragraph 46), the defendant had previously contacted Mr Turner in July 2006, to remove him as director of another company, namely Nehaye Pty Ltd. [74] The same pattern of having the defendant being appointed and ceasing to be a director of the company on the same day occurred in relation to another company in 2006, namely the company Special Protection Services Pty Ltd, where the defendant was appointed to, and ceased to be, a director on the same day, namely 12 October 2006 (T-71). Mr Turner was so vague about his role in removing the plaintiff's name from this company the he thought it might have occurred in 2005 (T-71). [75] When reminded of this in cross-examination, Mr Turner changed his evidence about the defendant calling him "out of the blue". He went on to say that he used the words "out of the blue" in the sense that the defendant should never have been a director of the company when, in response to my question as to how it could be "out of the blue" when he had been telephoned to do the same thing a few months later: "I say it's out of the blue because it should never have – he should never, ever, ever been [sic] a director of Civil Pacific. So that was out of the blue." (T-75) [76] Mr Turner was unable to refer to any documents which would assist him with his recollection. He said: "You know I don't keep this many accurate records of every conversation word for word. I just go and get people that should have done their job in the first place, being accountancy firm [sic], to tidy up any mistakes that might have been made. I don't know whether this was a mistake or not in relation to Zenith." (T-79) [77] Mr Turner said it was "possible" the defendant could have been appointed a director of the company and simply left Mr Nedzad Kocic to run the business (T-79) but went on to say that "it was never the intention of Senad Kocic to be involved in that company. That I can say absolutely." His evidence on this issue was confused and inconsistent: "Q. And for all you know Senad could have been appointed a director of the company and left Ned to run the business - that's a possibility isn't it? A. Is it a possibility well of course it's probably a possibility. Was it ever an intended possibility? Well obviously something has happened because he was made a director for a period of time right. Now, whether - I think - I believe it to be a mistake. I think it's quite easy for someone to make those errors, probably an accountancy firm if the accountancy firm is dealing for both parties but no, it was never the intention of Senad Kocic to be involved in that company. That I can say absolutely." [78] Mr Turner was a witness with poor recollection and no documentation to support his claims. For example, he was unable to identify the employee of the accountant, or to provide copies of any business plans, or even any bills that he sent for the advice that he gave. He attempted to explain inconsistencies in his evidence by material which should have been in his affidavit. I do not accept his evidence as being corroborative of any of the events in question. Evidence of Mr Sam Elmir [79] Mr Sam Elmir was the general manager of the company. He received the letter from Mr Chris Tsovolos dated 28 August 2006 in which Mr Tsovolos said that: "as discussed on Friday" he'd recommended that the defendant "remain as director" until the ATO payments were made and that the defendant should only then resign as a director (Exhibit B1, page 154). I note that in his evidence Mr Tsovolos said that when he was referring to "as discussed on Friday" he was having a discussion with Mr Sam Elmir (T-152). [80] Mr Elmir's statement, at T-52, that he never knew the defendant is implausible in circumstances where he received a letter from Mr Tsovolos on 28 August and had a meeting to discuss the contents on 29 August. Whether or not the defendant was at these meetings (a matter given great weight by the defendant in written submissions (page 11)) and whether or not Mr Elmir knew that Dennis Xenos had left the company in June 2006 (T-54) and took instructions from George Alex and Nedzad Kocic (T-54, 58, 59) is irrelevant. Mr Elmir, as the business manager, was having discussions with the solicitor about a number of issues, including the advice of a solicitor, confirming a previous discussion with him, that the defendant remain as director until the ATO payments were made. [81] Mr Elmir conceded that he did not know what knowledge the defendant had about the company's business (T-58), agreeing that he did not know what the defendant knew and/or whether Mr Nedzad Kocic kept his brother informed. [82] Mr Elmir was fixed with actual knowledge of the advice of Mr Tsovolos, both from the letter of 28 August, the prior discussion referred to in it, and the subsequent discussion in the meeting at the café on 29 August. His evidence, including any attempt to say to the contrary, cannot assist the defendant. Evidence of the Defendant [83] The defendant was cross-examined at T 25 - 6 about the circumstances in which he signed documents for the Argyle Partnership for Mr Tsovolos in 2005, the year before these events: "Q. You'll see there the signature at the bottom of the page? A. Yep. Q. That's your signature isn't it? A. Yep. Q. And that's dated 23 September 2005? A. Yep. This document came home to me. I'll just answer this one, this document came home and my brother and I signed it. So again I never deal directly with Chris Tsovolos for this as well. Q. But you knew Argyle Partnership-- A. no, I don't know who Argyle Partners are. Q. --were preparing the documents? A. No, I do not know. My brother came to me, this was five, six years ago, I was very young then as well. He brang me documents and I signed them for the development that we were doing. Q. And what did he say to you when he gave you the document? A. This was to borrow money off my parents' house, this document. Q. And is it your usual procedure to have your brother explain documents to you? A. Because I was overseas, I got married overseas, I'd just got back, I think I was back for a couple of months, so they were already in the motion doing things, so-- Q. So it would be a usual procedure for you to have your brother give documents to you to sign? A. Before it was. Not any more after this stuff. Never again. It won't happen again. Q. So what you're saying is that your brother gave you the documents in these proceedings for you to sign? A. For these ones, yes, I think so, yes. JOHNSON: I'd like my friend to make clear what these proceedings are, your Honour. FODA: No, I should clarify that. Q. When I say-- A. Sorry? Q. I'm sorry, Mr Kocic, I don't want to mislead you. The notice of appointment and the appointment of Argyle Partnership as the lawyers in these proceedings, documents I took you to earlier? A. Yes, for the purchasing or-- Q. No, I'll start again. Documents that I took you to earlier, that is, the notice of appointment of you as a director of Civil Pacific and the document whereby you appoint Argyle Partnership as the lawyer, and just so you're aware of what I'm talking about, these are the documents-- A. Go back to the little folder, is that right? Q. These are the documents at 62 and 63 and 64. A. Okay. Q. Did your brother give you those documents to sign? A. I can't recall sorry. Can't recall on the documents. Q. But it would be your usual procedure for your brother to give you documents and you would sign them? A. He was looking after the site so-- Q. And you relied upon his explanation of those documents before you signed them? A. 62? Is that what we're looking at? Q. Yes. A. There is no signature on 62. Q. Mr Kocic, the small folder, 62? A. The small folder? Q. Yes. A. Yep, 62 and 63 and 64 is all right. The legal - who's the legal guy who's witnessed my signature, the signature? Like, if that's Chris, I never met him, this man. So this is what's really freaking me out." [84] Some of these documents related to real estate transactions, where there is an obligation on the person witnessing the signature to see the person signing (T-26 – 7). It is a serious claim to make to assert that a solicitor, or his employee, signed such documents as a witness when that was not in fact the case. No such allegation was put to Mr Tsovolos in cross-examination. [85] The defendant claimed that even when he returned from overseas in May 2005, his brother continued to use a power of attorney, and that this was the explanation for a letter from the Argyle Partnership dated 21 September 2005 which commenced with the words "We act for Mr Senad Kocic". [86] When asked about how he came to be appointed a director of Zenith Workforce, he said that this was a mistake as well: "Q. Now these documents are in relation to Zenith Workforce New South Wales Pty Limited? A. Yep. Q. And you know that you were appointed director of that company? A. That was a mistake as well, because I did purchase the company off my brother and it was done legally and properly. I did pay the sum of $80,000 for it and we named it a different name. I did not take this on when I found out about the debt. I did never trade - I never traded with this company. I don't know - whom am I here in Court with." (T-31) [87] This was inconsistent with the evidence in his affidavit (T-32): "Q. If you could turn to paragraph 77 of your affidavit which is found on page 16? A. Which one, 77? Q. It's paragraph 77. There you say, "I was just coming on board as a director of Zenith Workforce New South Wales Pty Limited". A. Yeah. Q. Mr Kocic you accept the fact that you knew you were appointed director of Zenith Workforce? A. Hold on, I'm confused here again. Which company are we talking about? Q. Zenith. A. Zenith now, all right. Yeah, I did go on, but I came off straightaway, because there was - I purchased - this company I purchased legally. I paid a sum of money for it and I traded with another company for the next four years. Q. The point I wish to make is at page 65, 66 and 67 which are the documents in the small folder which is - you signed those documents knowing you were being appointed a director of Zenith Workforce? A. Well I was talking about it. I was never - it was never supposed to happen. I was talking about it and I never instructed Argyle Partners again to do anything on my behalf. Q. Mr Kocic, you know these documents were created. That is, the documents at 65, 66 and 67 were created by the Argyle Partnership? A. No I didn't." [88] He again made the claim that someone had falsely witnessed his signature: "Q. If you could turn to paragraph 27 of your affidavit? A. I can see on page 67 again, my signature, the Zenith one, and somebody from the legal practitioners signed next to my name three days later. Who's this person who signed - is this from Argyle Partners, who witnessed my signature three days later? I need to know this because I spoke to Chris Tsovolos about this. Q. Just to clarify, the signatory's not witnessing your signature. A. No." (T-32) [89] The defendant gave inconsistent evidence about when he had first learned of being a director: "Q. Mr Kocic your evidence earlier was that upon receiving this letter-- A. No, I said the director penalty notice letter, I said, if you wanted to go back. I don't recall seeing this letter. Q. Well Mr Kocic that's at odds I would suggest to you with what your evidence was earlier. Your evidence earlier was that upon reference to paragraph 23, on or about 16 November 2006. That's when you became aware and it was upon the receipt of this letter of 15 November 2006. A. I don't recall. Q. Mr Kocic you'd agree with me that you've now changed your evidence, haven't you? A. The only letter I remember getting was a director penalty notice, and I went from there. And I went and seen Chris Tsovolos, I went and seen everybody. I went to another law firm first because I had a sum of money. The letter that I received had a sum of money, how much I owed. Q. That was on 1 December 2006 Mr Kocic? A. Well that's when these-- Q. That was after this conversation took place, wasn't it? A. That's wrong then. I might have made a mistake" (T-34) [90] At T-35 Ms Foda pointed out: "Q. Mr Kocic you would agree that the ASIC records were changed or amended by Scott Turner-- A. Yes. Q. --on or about 17 November 2006. You can refer to your affidavit Mr Kocic, I don't want to take you by surprise. A. No, I know, I don't-- Q. You can see at paragraph 33-- A. I'm a bit confused now, I'm confused. Like really, I thought it was the director penalty notice, that's when I-- Q. But you agree the director penalty notice came after? A. That's the first letter that I got, director penalty notice. So it's - I'm confused, I don't remember. I don't remember I'm sorry, it's four, five - I do not remember. Q. But you'd agree Mr Kocic that paragraphs 23-- A. Yep. Q. --and the events that followed would not have happened if all you received was the letter on 1 December 2006? A. I'm not sure. Q. Put it this way. Looking at paragraph 33(as said), be fair to say you're no longer confident about the dates? A. Yeah." [91] When asked why there were no documents for the appointment of Mr Nedzad Kocic for the company, the defendant blamed Mr Tsovolos: "Q. The documents that I've taken to you on so many occasions Mr Kocic they are the ones before you 61, 62 and onward there are no documents that you're aware of in evidence that relate to the appointment of Ned Kocic as a director of Civil Pacific Traffic, are there? A. I'm not sure. Like I'm still - I was confused in the car, when I was sitting in the car, like, and I was thinking Chris Tsovolos was supposed to have put all these in to the ATO and do everything, all right, and I could have been a ghost. He did not know who I am. Like I don't understand how someone can - a lawyer can lodge everything and he does not know who I am. Like to me I could have been a ghost, my brother could have been lying, everyone could have been lying. But I exist and this man - like this is - I'm very very confused here. Q. When you say your brother could have been lying-- A. Not lying, like, yeah, I'm not saying he's lying, I'm saying I could have been a ghost, I couldn't have existed with this firm representing me when they've seen me before. That's what I don't understand, what's happening. Q. Are you suggesting that your brother gave instructions-- A. I'm not suggesting my brother did it, someone might have. Q. Are you suggesting-- A. I didn't give it to Christ Tsovolos so I don't know who did." (T-46) [92] However, given Nedzad's role in the company, the defendant was unable to explain why, when the defendant asked Mr Scott Turner to remove the defendant's name from the ASIC register, neither he nor Mr Scott Turner contacted Mr Nedzad Kocic: "Q. Then 31 is the next day, Scott phones you and advises you in words to the following effect that you've been taken off as a director and it has been backdated back to the date you got put on. There is no evidence here that Scott says to you 'I need to check with Ned' is there? A. I was never supposed to be director of the company, so why should my name be there because Ned's name should have been there because he received the document and I didn't notice was wrong, but I don't know why my name was there. Q. Scott Turner-- A. I only worried about myself, I didn't worry about my brother or anyone so why is my name there, I wanted an explanation, that's why I went to everybody. Q. Scott Turner doesn't say to you, "Hang on Senad, I better check with Ned to make sure you are to be removed", he doesn't say that does he? A. Why should he ask Ned when it is nothing to do with me? Why is he going to ask - of course he has to remove me because I shouldn't have been there in the first place, so I don't understand where you're getting that for that one. Why should he ask Ned when my name shouldn't have been there at the beginning, it should have been off, so I spoke to Scott myself and said get my name off, like it shouldn't have happened, it shouldn't have even been there. Q. So Mr Kocic, Scott didn't seek instructions from Ned as far as you're aware to have you removed? A. I'm sure." (T-48 – 9) [93] The defendant could not recall receiving a letter from the ASIC confirming his appointment as a director (T-49). [94] The defendant blamed his brother Mr Nedzad Kocic for his appointment as a director of the company, although his reasons for this were less than clear. The most likely explanation is that, for whatever reason, and apparently after legal advice from Mr Tsovolos (given the references to this in the 28 August letter) Mr Nedzad Kocic did give the defendant the documents to sign appointing him as a director of the company. [95] The evidence of the defendant is replete with inconsistencies. For example, his claim that he only became aware he was a director on 1 December 2006 is inconsistent with his account of conversations with Nedzad Kocic on 16 November and Scott Turner on 16 and 17 November. When confronted with these inconsistencies, he would say that there had been a "mistake" or that he was "confused" (T-32). On several occasions, to resolve inconsistencies, he was willing to accuse the Argyle Partnership of incompetence and of failing to comply with obligations to witness documents. [96] As set out above, the defendant's evidence is inconsistent with all the contemporaneous documentary evidence. It is also internally inconsistent, in that he contradicted himself in cross-examination and on occasion had to concede mistakes. In addition, it is inconsistent with the evidence of other witnesses in his own case, as well as evidence of witnesses called by the plaintiff. Further, his explanations and excuses (for example, being an uneducated labourer) are implausible. [97] Taking all of the above into account, I do not accept the evidence of the defendant concerning the circumstances in which he became a director. I find that he signed the relevant documents willingly and in full knowledge of his actions, and that at the time he knew what his obligations as a director were (T-36). I do not accept him as a witness of credit on any issue in these proceedings, and would not accept his evidence unless it was corroborated by objective and reliable documentary evidence or evidence of another witness of credit. Evidence of Chris Tsovolos [98] An application was made by the defendant for Mr Tsovolos to be called by the plaintiff in chief. I rejected that application, because the matters upon which Mr Tsovolos was called related to matters upon which the defendant bore the onus of proof, namely the circumstances in which the defendant asserted he was not a director of the company despite forms filled out by him being sent by the company solicitor, Mr Tsovolos, to the ASIC and to the ATO, and despite correspondence and discussions between Mr Tsovolos and the ATO concerning the outstanding company taxation liabilities. [99] Mr Tsovolos was at times given to generalities in his evidence, and when he could not remember, he said so. He gave his evidence frankly and openly. [100] Mr Tsovolos identified his initials in the Argyle Partnership documents which established that he acted for the defendant: "… the middle of the document under matter details is liaison CJT. Who is that? A. Yes that's me. Q. And you will see that the client in that instance was Senad Kocic? A. Yes. Q. So were you acting for Senad Kocic at that time? A. If I could just explain this matter. You see where it's liaison, then underneath it's got partner and delegate? Q. Mm? A. So liaison - what the firm used to do is record who was the first point of contact, so why did the client effectively come to the law firm. Palmer was the person responsible for the matter. FJS would have been Fiona Sontag. Delegate would have been an assistant at the time called Ben Smitz. So from this it appears that the firm acted for Senad in relation to a matter. Q. And you were the liaison for Senad Kocic at that time? A. Yes. Liaison didn't mean you actually acted on the file. It just meant you were the first point of contact. It could have been literally I was rung up and I gave it across to Fiona or the person had a previous relationship with the firm directly or indirectly through me." (T-133) [101] Mr Tsovolos identified documents in 2005, but could not put a date on any meeting with the defendant: "Q. Now if you could turn to page 36 of that bundle of documents. Again look at the numbers at the bottom of the page. You will see that that refers to a conference that took place on 5 October 2005. A. Yes. Q. And in attendance was Ned and Senad Kocic. Do you recall that conference? A. This isn't my handwriting. Q. Your note the third entry there? A. Yes there's a reference says Chris Tsovolos plan to net(?). Best to go by the valuation. Yes, I don't recall conference or anything to that nature. Q. Do you recall having conferences with Senad Kocic at the offices of Argyle Partnership? A. I don't recall them no. I don't recall any. Q. Where did you meet Mr Senad Kocic? A. I would only be speculating your Honour because I don't remember, simply don't remember. I would say most likely it would have been one of the times I was at the offices of Zenith would have been the first time I met him. I might be guessing." (T-134) [102] Mr Tsovolos said that sometimes he went to the office of Zenith three times a month, and sometimes he would not go for six months (T-134). [103] He said he would have prepared the appointment of director document for the defendant to sign because he was instructed to do so: "Q. Did you have instructions to appoint Senad Kocic as a director of Zenith Workforce New South Wales Pty Limited? A. To prepare this documentation, we would have been instructed to do that. Q. Who gave you those instructions? A. I don't recall. Q. And at the time this took place, that is 21 June 2006, Senad Kocic was a client of your firm, wasn't he? I don't want to take you by surprise, by reference to the other documents. A. Yeah reference to the other document. He would have been a client. I don't recall the date that was on that new matter form so I don't know. Q. But he was a pre-existing client? A. He would have been a pre-existing client, yes, yeah. Q. And if you turn to the - from pages 44 you'll see documents from 44 to 58. If you go through those documents, do you recall who prepared those documents? A. If you look at page 44, see in the bottom where he writes T:\AVL\DOCS\, et cetera, that's the document management system. AVL would have been the person who prepared it. It would have been Amelia Lawrence. Q. Did you instruct her to prepare them? A. I presume yes. Having regard to what I've just seen in the previous letter" (T-136) [104] He sent this document, and the other documents attached to his letter of 27 June 2006 (Exhibit 2 p. 60) on instructions but could not recall who gave them (T-138). However, he gave evidence of his practice when taking instructions which is consistent with having instructions from persons in a position of authority in the company, and with having an understanding of the defendant's intentions and wishes. [105] Mr Tsovolos said he took instructions from Mr George Alex on behalf of the company (T-139). In cross-examination, Mr Tsovolos said that he knew Mr George Alex had no formal executive role in the company, but that he was the main person to go back to in order to get instructions (T-157 – 8). In submissions (summarised at [41(d)] above) counsel for the defendant placed great significance on the role of Mr Alex, submitting that he really ran the company, in that he and not the defendant was the person Mr Tsovolos contacted, and that I should make a finding that although Mr Alex held no executive office he was a "shadow" director and the person really in control of the company. [106] Mr Alex was not called by the defendant in these proceedings, although he is a witness who would be in the defendant's camp. Although Mr Tsovolos took instructions from Mr Alex, Mr Tsovolos knew that Mr Alex was not a director (T-141). While he could not recall speaking to either Mr Nedzad Kocic or to the defendant (T-145) about company issues, this does not mean that he thought Mr Alex was the person who was really in charge. It is an indication that Mr Tsovolos's memory on this, as on other, occasions was not good. [107] The plaintiff asked me to draw Jones v Dunkel inferences (Jones v Dunkel (1959) 101 CLR 298; [1959] ALR 367; (1959) 32 ALJR 395; (1959) 76 WN (NSW) 278) from the failure to call a number of witnesses, and in oral submissions on 12 August 2010, Ms Foda confirmed that this included Mr Alex. As the person who received and passed on instructions from Mr Tsovolos, Mr Alex's evidence concerning all aspects of the appointment and removal of the plaintiff as a director would have been of assistance in determining issues. He appears to be a witness in the camp of the party who bears the onus of proof, namely the defendant. In all the circumstances, having regard to all of the factual matters referred to elsewhere in this judgment, I am satisfied that I should draw this inference. [108] Mr Tsovolos also could not remember conversations with the ATO officers. When conversations Mr Tsovolos had with Ms Corrigan of the ATO were put to him, Mr Tsovolos could not recall them; in particular, he could not recall having a discussion about the defendant's "independent" role in the company with her (T-146). While he could not recall saying that Mr Senad Kocic was acting in a totally independent way, he did recall that there was ATO concern that Mr Dennis Xenos, although departed from the scene, was "puppeteering" (T-146) and controlling the company from outside, and seeking to reassure them that this was not the case. This evidence gives some insight into the circumstances in which Mr Tsovolos might have given advice about the defendant being appointed, along the lines of his advice in his letter of 28 August. Mr Tsovolos made that point again in cross-examination (T-157). [109] It was in accordance with his understanding of the defendant's role in the company that he sent the letter from the Argyle Partnership to the defendant concerning the company's tax liabilities: "Q. So? A. So obviously when this letter was written we were of the opinion that he was a director for that to write, like that. Q. Then if you could turn to page 171? A. Yes. Q. Do you recall receiving this letter? A. I don't recall but it has been addressed to me at the right place, I presume I did receive it. Q. Then if you turn to the next page, 172? A. Yes. Q. This letter was then - just so you are aware - behind 172 is 173 and 174 and 174 is the same document as 171. A. Okay yeah. Q. Why did you send that document to Mr Senad Kocic? A. Because we received it from the ATO - maybe it was an important document. Q. Why did you send it to Mr Senad Kocic and not someone else? A. I would say similarly where the other letter you suggest because at the time it would have been Senad was the director. Q. Now if you could turn to page 175. Do you remember sending this - it looks like an SMS on 14 November 2007? A. Once again I don't remember independently whether I read it so I suggest yeah, it looks accurate, it looks like something I would have done at the time. Q. And why did you send a copy of this SMS to Ned? A. I would guess - look I don't recall why I did it then but if you are asking why would I, I would suggest I sent a copy to Ned to let him know what was happening. Q. And what was happening in your opinion? A. The ATO issues of they were falling behind in their payments." (T-152) [110] Notwithstanding Mr Tsovolos's inability to remember, the document chain paints a clear picture of his having acted in accordance with the instructions of both the company and the defendant. Conclusions concerning the evidence [111] I am satisfied that the defendant has failed to establish, in accordance with the burden of proof which lies upon him, that his appointment as a director of the company was without his knowledge or consent. I find that the defendant was appointed as a director with his full knowledge, and his continuing role as a director was discussed with the company's solicitors in August, when it was decided that he should remain a director until the ATO debt was paid. This was a conscious decision by all concerned, including the defendant. Claims that the defendant was a shadow, nominal or deemed director (defendant's written submissions, paragraph 18) are not to the point. Once the defendant is appointed, he is obligated to uphold his duties as a director: Deputy Commissioner of Taxation v Lesley Frances Robertson [2009] NSWSC 597 at [99] – [113]. [112] The signing by the defendant of a letter of appointment was, I find, a step that he took consciously. Explanations that he gave such as being "very young" (T-25), or just an uneducated labourer (T-43 - 4) or being just back from overseas, or signing without looking or thinking, or that his brother was still using the power of attorney despite his return from overseas in May 2005, are implausible, particularly given the pattern of his having signed a number of other financially complex documents for the Argyle Partnership in the previous few years. [113] I note the submissions concerning the plaintiff's failure to apply to a Court for rectification of the Register. In oral submissions on 4 August, the plaintiff's counsel confirmed she would not press the estoppel argument. [114] The fact remains that there are simply too many documents signed by the defendant for me to accept that he had no connection with the Argyle Partnership, and the circumstances in which, as a client of the firm, he signed a document in circumstances where Mr Tsovolos not only must have known who he was but gave advice about whether or not he should be a director, means that the defendant has not established, in accordance with his onus, that the defendant was not a director. [115] There having been no compliance with s 222AOB of the Income Tax Assessment Act 1936 in relation to the two directors penalty notices, the defendant is therefore liable for the penalties in those notices. [116] Judgment for the sum claimed in those notices, namely $532,043.42 is therefore payable. [117] I note there is a claim for interest on the judgment sum pursuant to s 100 Civil Procedure Act 2005 (NSW) and I will grant liberty to the parties to bring in short minutes of order reflecting the agreed interest sum. ORDERS (1) Judgment for the plaintiff for $532,043.42. (2) Defendant pay plaintiff's costs. (3) The parties have leave to file short minutes of order reflecting the mathematically agreed sum of principle and interest. (4) Liberty to apply in relation to interest and costs. (5) Exhibits retained for 28 days. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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