Industrial Relations Commission of New South Wales CITATION: Bekir Durunesil & anor v Ravbun Oncu & ors [2005] NSWIRComm 22 Applicants: Bekir Durunesil Hediye Durunesil Respondents: PARTIES: Ravbun Oncu Pacific Fast Food Pty Ltd Besime Oncu Riza Oncu FILE NUMBER(S): 5953 of 2002 CORAM: Backman J CATCHWORDS: Unfair contract - ex parte proceedings - Oral contract - Meaning of expression "whereby work is performed in any industry" - Misrepresentations as one of the bases of unfairness - Application of jurisdiction to persons not parties to the impugned arrangement Industrial Relations Act 1996 LEGISLATION CITED: Industrial Arbitration Act 1940-1967 Stevenson v Barham (1977) 136 CLR 190 Barham v Stevenson (1975) 1 NSWLR 31 CASES CITED: Production Spray Painting & Panel Beating Pty Ltd and ors v Newnham and another (1991) 27 NSWLR 644 Oraka Pty Limited and Wendy's Supa Sundaes, Pilgrim and ors (2004) NSWIRComm 39 Brown and ors v Rezitis and ors (1970-1971) 127 CLR 157 HEARING DATES: 11/19/2004 DATE OF JUDGMENT: 02/11/2005 Applicants: Mr Tregenza of counsel LEGAL REPRESENTATIVES: Ms. Ilknur Bayari Respondents: no appearance JUDGMENT: 21 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: BACKMAN J 11 February 2005 Matter No IRC 5953 of 2002 BEKIR DURUNESIL and HEDIYE DURUNESIL v RAVBUN ONCU, PACIFIC FAST FOOD PTY LTD, BESIME ONCU and RIZA ONCU Application under s106 of the Industrial Relations Act 1996 JUDGMENT Preliminary matters 1 These proceedings concern an application under section 106 of the Industrial Relations Act 1996 brought by way of Amended Summons for Relief ("the Amended Summons") filed on 20 January 2004. 2 The original application by way of Summons for Relief was filed on 22 October 2002. On 31 December 2002 a Reply to the Summons was filed on behalf of the four-named respondents in the Summons by Erdem Hussein, solicitor. 3 The matter was set down for conciliation on 14 July 2003 and on 12 August 2003. The respondents did not attend on either occasion although they were represented by Counsel, who informed the Court that the first, third and fourth respondents were overseas in Turkey. 4 On 12 August 2003 Mr Hussein, the respondents' solicitor, was directed to attend Court on 18 August 2003. On 16 August 2003 Mr Hussein swore an affidavit deposing to his inability to attend Court on 18 August because of a prior commitment. He also sought to explain in the affidavit, the non-attendance of the three respondents on the basis that they were in Turkey where the fourth respondent had fallen ill and been hospitalised. 5 On 20 November 2003 signed consent orders for the further conduct of the matter were handed up to the Court by a legal representative of the applicants. On that occasion the respondents did not appear, nor did any representative appear on their behalf. 6 The matter again came on for a further directions hearing on 24 May 2004. By that time the applicants had filed and served all material upon which they sought to rely at the hearing. The respondents had not filed any material nor did they appear on the day. The applicants' legal representative informed the Court that there had been no communication with the respondents. The respondents were directed that they should file and serve all material upon which they sought to rely within one month, and, in the event of non-compliance with the direction, that the matter was to proceed as an undefended hearing. The respondents did not comply with the direction. 7 On 8 September 2004 when the matter first came before me, the applicants' solicitor, Ms Bayari, informed the Court that she had had no communication with the respondents or any representative of the respondents. Ms Bayari undertook to write to the respondents informing them of the hearing date. 8 On 7 November 2004 the Registry received an Affidavit of Service filed by the applicants' solicitor, which deposed that on 14 September 2004, a letter advising the respondents of the hearing date, and the location of the hearing, was sent directly to the respondents at the last known residential address of the first, third and fourth respondents, at 7 Bungarribee Road, Blacktown. 9 On the day of the hearing, the respondents did not attend, nor did any representative attend on their behalf. For abundant caution the respondents were called outside the Court. 10 On the basis of the foregoing events, I was satisfied that the matter could proceed ex parte. The hearing ex parte 11 The applicants are husband and wife, both of Turkish nationality (hereinafter referred to as the first applicant and second applicant respectively). 12 Both applicants were provided at the hearing with the services of an accredited interpreter in the Turkish language. 13 The first respondent is the son of the third and fourth respondents. All three respondents are also of Turkish nationality. The second respondent is a corporation. Annexure A annexed to the affidavit of the second respondent is a handwritten receipt signed by the first respondent who is described in the receipt as the director of the second respondent. Apart from this piece of evidence, there is no other evidence before me concerning the existence or otherwise of the second respondent, or what connection or relationship, if any, the second respondent may have had to the natural respondents. 14 The evidence reveals that sometime in March or April 2001, the second applicant worked with the third respondent as a take-away food assistant. Some weeks later, the second applicant had a conversation with the third respondent. During the conversation, the third respondent said that her son, the first respondent, was purchasing two take-away shops located in the Mega Markets at Morisset. It later emerged in the evidence that the two shops were called "Mega Bites" and "Pasta Salad". Some weeks after that conversation the third respondent told the second applicant that her son wanted to sell one half-share in each of the businesses. 15 The second applicant expressed immediate interest in buying a shop. It was arranged between the second applicant and the third respondent that the first respondent would contact her. 16 Shortly after, the first respondent telephoned the second applicant and invited both applicants to his parents' home to discuss selling one half -share in both businesses. 17 About a week before the Easter holidays the two applicants travelled to the Mega Markets at Morisset to inspect the shops. There they met the first respondent. The first applicant recalled a conversation with the first respondent at this time in the following terms: first respondent: "The shops are doing well. They take net $4,000.00 per week. I will sell you one half of the businesses. If we agree on a price you will be able to pay your debts off within in year. I can then sell you the remaining half. I bought these shops for $230,000.00 on the record and gave $100,000.00 to the seller off the record. They really cost me $350,000.00. I won't make any profit out of you. I'll give them to you for the same price." first applicant: "We don't have that much money." first respondent: "That is not important. I know people. Just give me $4,000.00. I will pay it as commission. I can organise a loan of $100,000.00 at home loan rates. At 25-year term, the monthly repayments will be about $600 - $700 per month. If you can find $80,000.00 the rest is easy. If you give me $1,500.00 per week I will not be involved in anything. You will be responsible for everything. This is a very good opportunity for you." first applicant: "This price is very high. Can't you reduce it a little bit." first respondent: "You don't have money anyway. I am going to arrange your finance. This is a very good opportunity." 18 The next day both applicants met the first respondent at his parents' house. There, the second applicant recalls the first respondent telling her in the presence of the first applicant: "I paid $230,000.00 for these shops and I paid further $100,000.00 black money to the Vendor. I will sell it to you at the price that I have bought. I will sell you half-share of the shops. You will pay me $180,000.00 and $1,500.00 per week as share from the profits. These shops take about $12,000.00 - $14,000.00 per weekend." (On the evidence both shops operated only on weekends and public holidays.) 19 Both applicants questioned the first respondent as to why he was selling the businesses so soon after he had purchased them. According to the first applicant, the first respondent told them he had cancer and needed the money for treatment and an operation in America. 20 On 18 April 2001 the second applicant handed $5,000.00 in cash to the first respondent as a deposit on the purchase price. The second applicant also gave the first respondent a further $4,000.00 in cash, representing the commission which the first respondent had requested in order to finance the loan of $100,000.00 for the applicants. The second applicant was issued a receipt by the first respondent for the $5,000.00 cash deposit only. 21 The first respondent advised the applicants that he would only accept cash payments for the purchase price of the businesses. Thereafter, the second applicant made a series of cash payments to the first respondent for which no receipts were obtained. The sequence of cash payments comprised the following: i) on 26 April 2001 the second applicant gave $26,000.00 to the third respondent for the first respondent. According to the second applicant, $23,000.00 of that amount was given to them by a friend of the first applicant. The evidence shows that money in that amount was received by way of telegraphic transfer from Switzerland; ii) on 27 April 2001 the second applicant paid $19,000.00 to the first respondent. This money came from the applicants' joint Commonwealth bank account; iii) on 30 April 2001 the second applicant paid $6,000.00 to the first respondent. The money was withdrawn from the first applicant's Mastercard account; iv) in April 2001, the second applicant paid the first respondent $26,000.00. She borrowed this money from three friends in the amounts of $6,000.00, $10,000.00 and $10,000.00. 22 The applicants agreed with the first respondent that they would pay the rent ($210.00 per day), stock, wages and all other costs associated with the business. 23 On 5 May 2001 the applicants commenced to work in both shops. Wage records annexed to the first applicant's affidavit indicate that between 5 May 2001 and 28 June 2002 they employed six employees at total gross wages of $14,360.00. 24 On 5 May 2001 the first respondent informed the first applicant that neither of the two businesses were as yet in his name but that as soon as he became the registered owner, he would complete the required formalities (and transfer one half-share of the businesses to the applicants). 25 Upon commencing to work in the shops both applicants noticed that business was very quiet and the takings were not what the first respondent had represented. The trend continued the following weekend. The first applicant told the first respondent that they could not pay him $1,500.00 per week. The first respondent suggested that they pay him $1,000.00 per week. According to the first applicant, the first respondent also allayed their fears about the level of takings, telling them, in effect, that business would pick up. 26 On 22 May 2001 the second applicant paid a further $16,000.00 in cash to the first respondent. This money according to the second applicant came from the first applicant's younger brother by way of telegraphic transfer from Turkey. 27 The applicants, on a number of occasions while managing and working in both shops, asked the first respondent when he intended to transfer the businesses into their names. The first respondent on those occasions told them he could not because the businesses had yet to be transferred into his name. They also, during the same period, asked for receipts for payments made but the first respondent said that they would get receipts once he had been paid all monies due and payable. 28 On the evidence, by the end of May 2001, the applicants had paid $82,000.00 towards the purchase price of one half-share of the businesses, $10,000.00 towards stock in trade, $4,000.00 commission fee, and the rental bond monies and one month's rental arrears for the first respondent's period of occupation of the two shops - a total of $101,691.49. 29 The applicants also questioned the first respondent as to whether he had obtained the $100,000.00 loan for which they had paid a $4,000.00 commission fee. According to both applicants, the first respondent said that he had been unable to obtain a loan. He suggested as an alternative that they meet his parents' mortgage repayments on their residential home. The applicants agreed to this. Upon request they provided the first respondent with their bank account details so that monthly repayments could be directly debited from their bank account. 30 This arrangement took effect from June 2001 and the applicants commenced to pay the third and fourth respondents' mortgage payments to Delta Home Loans, the loan provider. The first payment was in the amount of $1,432.93. Thereafter, as evidenced by bank statements annexed to the first applicant's affidavit, monthly debits in approximately the same amount were made from the applicants' St George bank account to the Perpetual Trustee Victoria Ltd. According to a document tendered into evidence by the applicants, that entity was the trustee of the third and fourth respondents' loan. 31 During the course of working in the businesses, the applicants discovered that the level of takings did not improve, and they did not make any profit after meeting costs and paying $1,000.00 weekly payments to the first respondent. The applicants also asked for receipts for each weekly payment to the first respondent but these were not forthcoming. 32 On 12 July 2002, the applicants stopped paying the first respondent the weekly payment. That afternoon the first respondent spoke to the first applicant who was at that time working in one of the shops preparing for the weekend. The first applicant recalls the first respondent saying: "Give me my money back otherwise I'm going to take the shops from you." At the same time he brandished a lease document, saying: "Do you know whose name is written here?" 33 Later that day two policewomen arrived at the shop where the first applicant was working. He understood that they were asking him to leave. As a result the first applicant says he was forced to leave the shops without being able to take anything belonging to him or his wife. Before commencing to work in the businesses, the applicants had purchased cooking equipment for the shops, including a microwave oven at a cost of $1,900.00, a tiger urn at a cost of $190.00 and other cooking equipment to a total of $660.00. No evidence was led before me to suggest that these items, as well as all the stock in the shops at the time of the first applicant's forced removal, have been retrieved by the applicants. 34 A document tendered into evidence by the applicants, entitled "Business Income and Expenditure Recorder", records the weekly takings for both businesses from 1 July 2001 to 7 July 2002. It shows that during that period the businesses made a net profit, after cost of goods sold and expenses, of $31,639.00. The document does not include the $1,000.00 weekly payments made to the first respondent. In oral evidence, the first applicant explains that this was because the first respondent would not issue any receipts for those payments and the applicants could not record the item as an expense without a receipt. 35 The second applicant also gave oral evidence in which she sought to explain a credit entry of $74,403.00 on 24 December 2001 to the applicants' St George account and a withdrawal in the same amount from that account on 28 December 2001. Her evidence in relation to that amount was that the first respondent had deposited it into the St George account. They were unaware of this until notified by the first respondent after which they withdrew the money and paid the first respondent thereby receiving no benefit for themselves. 36 Also tendered into evidence were tax returns of the first applicant for income tax years ending June 2001 and June 2002. The income tax return for the year ending June 2001 shows, in relation to the two shops, "Mega Bites" and "Pasta Salad", gross sales of $35,513.00, a gross trading business income of $15,858.00, expenses of $11,877.00 and a total net income of $3,981.00. The annual tax return for the year ending June 2002 shows gross sales of $172,539.00 for both businesses, a gross trading business income of $99,878.00, expenses of $75,208.00 and a total net income of $24,670.00. The contract 37 In submissions, the applicants' Counsel, Mr Tregenza, described the contract as initially an oral one between the applicants and the first and second respondents, providing for the purchase of one half-share in each of the businesses for $180,000.00. The only documentary evidence which would tend to confirm the contract is the receipt issued by the first respondent to the applicants for the $5,000.00 cash deposit on the purchase price. In reliance upon the amended summons, Mr Tregenza submitted that the proper characterisation of the contract was that the first applicant agreed to purchase one half-share of the two businesses from the first and second respondents in the sum of $180,000.00 and that it was a term of that agreement that the first applicant would run the businesses and work in the businesses, and pay the first and second respondents, or either of them, $1,500.00 a week from the profits. 38 Although the contract originally anticipated weekly payments of $1,500.00 to the first respondent, the evidence was that from the second week of trading, that is from 12 May 2001, the applicants made weekly payments to the first respondent in the sum of $1,000.00. The variation to the original contract occurred following a conversation between the first applicant and the first respondent in which the first applicant expressed concerns that he could not pay $1,500.00 per week because the level of takings was not high enough and not as high as the first respondent had represented. 39 Another feature of the contract involved the method of payment of $100,000.00 towards the purchase price. Although the intention initially was that the first respondent would obtain a loan in that amount for a $4,000.00 commission fee, later, when that did not eventuate, the applicants agreed to finance the third and fourth respondents' mortgage repayments by way of monthly repayments. Contract whereby work is performed in any industry 40 The unfair contracts jurisdiction under the Act is concerned with contracts, whereby work is performed in any industry. 41 In Stevenson v Barham (1977) 136 CLR 190, Mason and Jason JJ (at 201) set down the appropriate test for the application of jurisdiction as follows: If the contract is one which leads directly to a person working in any industry it has the requisite industrial flavour - it is a contract 'whereby a person performs work in any industry'. This is the relevant jurisdictional fact which must be established. 42 In Barham v Stevenson (1975) 1 NSWLR 31 at 35 Street CJ observed that in many cases the contract or arrangement may not be documented therefore resort must be had to the oral evidence of discussions and conduct: Frequently the real contract or arrangement existing between the parties will best be discovered by examining the actual relationship between them, and then regarding this as the manifestation of their contract or arrangement. 43 In Production Spray Painting & Panel Beating Pty Ltd and ors v Newnham and another (1991) 27 NSWLR 644 at 649, 650 Mahoney JA in discussion as to whether a transaction or arrangement was one "whereby a person performs work in any industry" said: In my opinion the section looks to the purpose of the transaction itself and to whether the purpose of the transaction was that relevant work be performed. In the terms of the section, it is the transaction, that is, the "contract or arrangement or ..." that is to be the cause of ("whereby") the work being performed. This suggests, I think, that what is in question is not merely an accidental consequence of the transaction but that which was its purpose to bring about. If this be so, then, in my opinion, the purpose must be that of both of the parties. If, for example, X a car dealer sells Y a motor vehicle, it may be the purpose of Y that it be used as a taxi cab and so that a person be employed to drive it in the transport industry. Y's purpose in buying the car was that such work be done and in that sense the performance of the work was a consequence of the sale of the car. But, in my opinion, it is not to that kind of transaction that the section is directed. It is the transaction which, in the contemplation of the section, is to be seen as having as its purpose the performance of the relevant work and, in that sense, it is to be the purpose of both of the parties which leads to the work being performed. 44 In the Production Spray Painting case the relevant transaction concerned the transfer of assets of a business. It was held that the purpose of the transaction was not that the purchasers perform work. This was because it was of no interest to the vendor whether the purchasers worked in the business or closed it up. 45 In the present circumstances it was the clear intention of both parties to the contract that the applicants work in the businesses. Indeed, the evidence supports the inference that it was never the intention of the first respondent to transfer one half-share of the businesses to the applicants. Instead, he intended that they work in the businesses paying him a weekly profit, and, at the same time, paying him a large sum of money, ostensibly for the purchase price. In these circumstances the relevant jurisdictional fact has been established. Unfair contract 46 The allegation of unfairness in relation to the contract is said to arise on behalf of the applicants because of the representations made by the first respondent regarding the level of takings of the businesses. The first respondent told the first applicant that both shops were doing well and netted $4,000.00 per week. This conversation occurred about a week before the Easter holidays at the Mega Markets at Morisset. The next day when both applicants met the first respondent at his parents' house he told them that both shops, "...take about $12,000.00 to $14,000.00". On the basis of these representations the applicants were convinced to acquire one half-share in the amount of $180,000.00. 47 These representations were patently false. The reality was that the applicants, after paying all expenses as well as the $1,000.00 weekly cash payment to the respondent, made no profit at all. Confirmation of this state of affairs is found in the Business Income and Expenditure Recorder which recorded the weekly takings for both businesses from 1 July 2001 to 7 July 2002. During that period the document records that the businesses made a net profit, after cost of goods sold and expenses, of $31,639.00. The figures, on the evidence, did not include the $1,000.00 weekly cash payments to the first respondent. As was explained in evidence by the first applicant this was because the first respondent refused to issue any receipts for those payments and the applicants were therefore precluded from recording the item as an expense. 48 In Oraka Pty Limited and Wendy's Supa Sundaes, Pilgrim and ors (2004) NSWIRComm 39 a Full Bench of this Court approved the test of unfairness as set out in Port Macquarie Golf Club v Stead (1996) 64 IR at 59-60: The commonsense approach characteristic of the ordinary juryman by applying standards providing a proper balance or division of advantage or disadvantage between the parties who have made the contract or arrangement, bearing in mind the conduct of the parties, their capability to appreciate the bargain they have made and their comparative bargaining positions when entering into the contract or arrangement: Davies v General Transport Development Pty Ltd (1967) AR (NSW) 371 at 374; A & M Thompson Pty Ltd v Total Australia Ltd (1980) 2 NSWLR 1 at 13; and Baker at 271-272. 49 In Brown and others v Rezitis and others (1970-1971) 127 CLR 157 at 164 Barwick CJ described the purpose of s88F of the Industrial Arbitration Act 1940-1967, the predecessor of s106, and its application to persons not parties to the impugned arrangement in the following terms: It must be borne in mind that one of the purposes of the section is to deal with subterfuges, subterfuges which will take the workers out of the relationship of master and servant and therefore out of the operation of an industrial award designed, amongst other things, for the protection of workers in industry. There may be persons involved in the subterfuge who are not parties to the contract or arrangement but who are in reality the actors deriving benefit from the making or the execution of the contract or arrangement. 50 The evidence placed before me disclosed that the applicants had limited or no experience conducting business dealings. 51 The first applicant could not speak fluent English and was unable to read or write English. He arrived in Australia from Turkey in 1996 and had a series of jobs, none of which indicated any experience in how to operate a business. In his affidavit, the first applicant stated that because the first respondent was also from Turkey and spoke Turkish fluently he was more willing to trust him. The second applicant, although she had been in Australia for a longer period than her husband, was also not fluent in the English language, as evidenced by the need for her to utilise the services of an accredited interpreter in the Turkish language during the proceedings. At the time she and her husband were introduced to the first respondent she was working as a take away food assistant. 52 In this matter the circumstances indicate that there was no transfer of the business by the first respondent to the applicants. The first respondent effectively fobbed off the applicants' inquiries as to when the transfer would take place with the improbable explanation that he could not complete the formalities because the businesses had not been transferred into his name. The first respondent's conduct in this regard, over a lengthy period of time, supports the inference that he had no intention of transferring the businesses into the applicants' names. 53 In addition, the first respondent required all weekly payments of $1,000.00 to be made to him in cash and he refused to issue receipts. This caused the applicants great inconvenience since they could not claim the various payments as expenses. Similarly, the first respondent required the purchase price monies to be paid in cash. Although the applicants made repeated requests for receipts for these amounts, the first respondent steadfastly refused their requests; at one stage informing them that they would get receipts only when they had paid the purchase price monies in full. 54 The first respondent also prevailed upon the applicants to part with $4,000.00 purportedly representing commission, in order to obtain a loan on their behalf. This loan was never obtained and the $4,000.00 was never returned to the applicants. 55 Finally, when the first applicant refused to continue the weekly payments sometime towards the end of June 2002, the first respondent orchestrated his forced removal from the shops. The applicants as a result were unable to take with them any stock or any of the equipment they had purchased for the shops. Nor have the applicants been able to recover any of the monies paid to the first respondent towards the purchase price of the businesses. 56 This course of conduct, including the representations as to the level of takings, on the part of the first respondent indicates unfairness in his dealings with the applicants. Although it is not necessary to establish fraud, deceit, or misrepresentation as prerequisites to the exercise of jurisdiction, on one view it may be reasonably concluded that the applicants were victims of a fraud, perpetrated upon them by the first respondent. Monetary amounts claimed against the respondents 57 The unfair contract between the applicants and the first respondent has been established. It remains to determine appropriate monetary orders. 58 The applicants seek orders in the form of monetary amounts claimed against the first and second respondents together and separately. 59 Monetary orders are sought against the first and second respondents for the cash amounts paid to the first respondent prior to 5 May 2001 in the amount of $82,000.00, which amount represents part of the purchase price of one half-share of the businesses. 60 An additional amount of either $10,000.00 or $16,000.00, said to have been paid to the first respondent on 22 May 2001, is also sought against the first and second respondents on the basis that this amount was paid towards the purchase price. The evidence concerning this payment is not clear. The second applicant in oral evidence could not clearly recall the amount paid to the first respondent on 22 May 2001. She says it could have been $10,000.00 or more. She says the amount paid did not include the rental bond monies paid to the first respondent. Instead, it was a continuation of the purchase price payments. In her affidavit, the second applicant says that $16,000.00 was paid to the first respondent on 22 May 2001. She does not say what the payment represented but says that it was a cash payment which included an amount of $13,229.72 received from the first applicant's brother by way of telegraphic transfer from Turkey on 22 May 2001. Annexed to her affidavit is a copy of a Credit Advice Confirmation issued by the Westpac Banking Corporation on that day in that amount. 61 The first applicant in his affidavit states that $16,000.00 was paid to the first respondent on "22 May 2002" (on my reading of the affidavit the year should correctly read "2001"). He says included in that amount was the rental bond monies and four weeks' rent which was invoiced to the first respondent on 5 May 2001 by Morisset Mega Markets Pty Ltd and which covered a period prior to the applicants' involvement in the businesses. 62 Elsewhere in his affidavit the first applicant says that the invoice, which was handed to the first respondent in the first applicant's presence by the Manager of Morisset Mega Markets, represented two months' rent. 63 Annexed to the first applicant's affidavit are tax invoices for rental fees and associated items, covering rent for eight days over a one-month period issued by Morisset Mega Market Pty Ltd. Although the amounts vary in each invoice, the variation is slight. The earliest tax invoice is for the period between 21 July 2001 and 12 August 2001 for an amount of $3,731.29. The next invoice is for the period between 18 August 2001 and 9 September 2001 for an amount of $3,734.32, representing a total amount of $7,465.61. 64 Taking into account all the circumstances on this aspect of the evidence I infer that an amount of $16,000.00 was paid to the first respondent on 22 May 2001 by the applicants, and, that this amount included four weeks' rent and the rental bond monies payable by the first respondent, on and from 5 May 2001. 65 The applicants also claim from the first and second respondents the weekly cash payments of $1,000.00, being $59,000.00 in total, made between 12 May 2001 and 21 June 2002 to the first respondent, and, representing a share of weekly profits. 66 The applicants also claim from the first respondent the sum of $4,000.00, which was paid in cash as a commission to the first respondent to enable him to obtain a loan of $100,000.00 on their behalf. 67 The applicants also make a separate claim against the third and fourth respondents for an amount of $14,879.00 representing one direct payment to Delta Home Loans, the third and fourth respondents' loan provider, and, payments by way of direct debit from the applicants' St George Bank account to the Perpetual Trustee Victoria Ltd, the trustee of that loan. 68 It was submitted on behalf of the applicants that the principles set out in Brown v Rezitis concerning the application of jurisdiction to third parties was applicable to the circumstances surrounding the involvement of the third and fourth respondents. It was said in this regard that the payments made by the applicants to Delta Home Loan and then to the Perpetual Trustee Victoria Ltd, constituted a direct benefit derived by the third and fourth respondents. 69 I am satisfied on this aspect of the evidence that the third and fourth respondents had a clear connection with the contract involving the applicants and the first respondent. The third respondent received cash payments comprising part of the $80,000.00 purchase price on behalf of the first respondent from the second applicant on two occasions, namely on 26 April 2001 and on 22 May 2001. 70 An exhibit, being a letter on Delta Home Loans' letterhead, tendered on behalf of the applicants during the proceedings, suggests that the third and fourth respondents held a mortgage with the Perpetual Trustees Victoria Ltd as trustees of the loan. Although not conclusive, this together with the applicants' evidence, which I accept, enables me to conclude that the applicants were meeting mortgage repayments totalling $14,879.00 of the third and fourth respondents as part-payment of the purchase price of the businesses. 71 It remains to consider the status and involvement of the second respondent in the arrangement. 72 As earlier adverted to, the only evidence before me concerning the second respondent is the handwritten receipt for the $5,000.00 deposit signed by the first respondent, who is described in the receipt as the director of the second respondent. That brief reference to the second respondent, without more, does not enable me to properly consider whether the second respondent had any involvement in, or connection with, the arrangement. In the absence of any other evidence I do not propose to make any orders against the second respondent. Relief claimed in the Amended Summons 73 The relevant relief claimed in the Amended Summons was: (1) An order declaring void in whole ab initio the contract or arrangement made between the applicants and the first respondent, or alternatively, the second respondent, or alternatively, the first and second respondents, in or about April 2001, being an oral contract which provided that: (i) the first applicant would purchase from the first and second respondents or either of them one half-share in "Mega Bites" and "Pasta Salad" being two shops located in Mega Market, Advantage Avenue, Morisset for the sum of $180,000.00; (ii) that the first applicant would conduct the whole of the businesses, "Mega Bites" and "Pasta Salad", and pay to the first and second respondents or either of them, a share of the profits in the sum of $1,500.00 per week. (2) An order that the respondents pay damages to the first applicant. (3) Costs. 74 Taking into account all of the evidence and the relief sought in the Amended Summons, I make the following orders: 1. The contract entered into sometime in April 2001 between the first applicant and the first respondent be declared void ab initio. 2. The first respondent pay to the first applicant the sum of $161,000.00. 3. The third and fourth respondents, jointly or severally, pay to the first applicant the sum of $14,879.00. 4. The first respondent pay to the first applicant interest on the said sum of $161,000.00 calculated under s94 of the Supreme Court Act 1970 (NSW) from date of issue of the Summons for Relief, namely, 22 October 2002 to date of payment. 5. The third and fourth respondents, jointly or severally, pay to the first applicant interest on the said sum of $14,879.00 calculated under s94 of the Supreme Court Act 1970 (NSW) from date of issue of the Summons for Relief, namely 22 October 2002, to date of payment. 6. Costs are awarded to the first applicant. 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.