Industrial Court of New South Wales CITATION: Terry v Huge Lights Pty Ltd & Ors (No 3) [2007] NSWIRComm 155 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT: Martin Terry FIRST RESPONDENT: Huge Lights Pty Limited PARTIES: (ACN 002 638 888) SECOND RESPONDENT: Jonathon Hughes THIRD RESPONDENT: Michelle Hughes FILE NUMBER(S): IRC 2169 of 2002 CORAM: Schmidt J Unfair contract - whether the applicant was an apprentice or an employee of first or second respondent - whether the applicant was otherwise in a business arrangement with the first or second respondent - whether the applicant had been promised wages and reimbursement of expenses incurred for the first and second respondents - whether certain expenses had been incurred - whether equipment had been acquired for the first or second respondents - no employment relationship or apprenticeship established - business arrangement between applicant and second respondent established - arrangement terminated by second respondent without notice - fairness of arrangement considered - questions of notice of termination and consequential money orders considered - position of the third respondent considered - exercise of any discretion in favour of applicant refused - public interest considered - application dismissed CATCHWORDS: LEGISLATION CITED: Industrial Relations Act 1996 Evidence Act 1995 Ace Business Brokers Pty Ltd v Phillips-Treby (2000) 100 IR 420 Autobake Pty Ltd v Budd (1986) 19 IR 18 Brown v Rezitis (1970) 127 CLR 157 Clyne v New South Wales Bar Association (1960) 104 CLR 186 CASES CITED: Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16 Martin Terry v Huge Lights Pty Limited and Ors [2005] NSWIRComm 448 NIML Ltd v MAN Financial Australia Ltd (No 2) [2004] VSC 510 Saliba v John Hearder Pty Ltd (1986) 15 IR 36 Sydney Water Corporation Ltd & Anor v Industrial Relations Commission of NSW & Anor (2004) 61 NSWLR 661 Thomson v Societe Generale Australia Limited [2006] NSWIRComm 24 HEARING DATES: 26 April 2006, 27 April 2006, 28 April 2006, 8 August 2006, 9 August 2006, 10 August 2006, 11 October 2006, 20 November 2006, 21 November 2006, 23 November 2006, 12 March 2007, 13 March 2007, 14 March 2007, 15 March 2007 DATE OF JUDGMENT: 22 June 2007 APPLICANT: Mr BKB Cross of counsel SOLICITORS: Ronald M Fluit, Solicitor LEGAL REPRESENTATIVES: RESPONDENTS: Mr RD Newell of counsel SOLICITORS: LC Muriniti & Associates JUDGMENT: - 49 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Schmidt J 22 June 2007 Matter No IRC 2169 of 2002 MARTIN TERRY V HUGE LIGHTS PTY LIMITED AND OTHERS (No 3) Application under s.106 of the Industrial Relations Act 1996 JUDGMENT [2007] NSWIRComm 155 1 These proceedings were commenced by Mr Martin Terry in April 2002 pursuant to s 106 of the Industrial Relations Act 1996 ('the Act'). Mr Terry complained about the fairness of a contract under which he claimed to have performed work for the first respondent, Huge Lights Pty Limited ('Huge Lights'). The respondents denied the existence of such a contract, or the unfairness claimed. 2 In the amended summons on which Mr Terry proceeded when the hearing commenced, he claimed that he was employed by Huge Lights and that his contract of employment was unfair in various respects. Jonathon Hughes and Michelle Hughes were said to be directors of the company. The respondents denied that Mrs Hughes was ever a director; that Mr Terry was ever employed by the company; that there was ever any legal relationship between the parties; that the Court had jurisdiction to entertain the claims advanced; or that even if it did, that there was any basis for the orders sought being made. 3 In closing submissions, Mr Terry was granted leave to amend his summons to claim in the alternative, that there was some other kind of relationship in existence, other than that of employment. That leave was granted with the respondents' consent. 4 In December 2005, the applicant filed a motion seeking to set aside notices given by the respondents pursuant to s 67 of the Evidence Act 1995. The motion was successful (see Martin Terry v Huge Lights Pty Limited and Ors [2005] NSWIRComm 448.) This judgment deals with the substantive claim. 5 The orders sought in the further amended summons filed in March 2007 were: 1. An order declaring void in whole or in part, or varying in whole or in part either from its commencement or some other time, the contract of employment or in the alternative the contract or arrangement between the applicant, and the Respondents ("the Contract"), under which the Applicant performed work in an industry for the Respondents. 2. Further and in addition an order declaring that the Contract under which the Applicant performed work in an industry for the Respondents was unfair, harsh and unconscionable, and contrary to the public interest. 3. Further and in addition an order varying the Contract, either from its commencement or from some other time, to include the following terms: (a) The Respondents shall pay the Applicant remuneration of $650.00 net per week from the date of employment or engagement to the date of termination. (a1) In the alternative, the Respondents shall provide to the Applicant a total remuneration that is not less than a person performing his work would receive as an employee performing his work. (b) Notwithstanding anything herein contained to the contrary, upon termination of the employment or engagement of the Applicant for any reason, the Respondent shall give to the Applicant 6 months notice of termination or payment in lieu of such notice of termination. (c) The Respondents shall reimburse the Applicant for his out of pocket expenditure and expenses for and on behalf of the First Respondent in purchasing capital equipment. 4. An order that the Respondents pay to the Applicant such sums of money in connection with the variations to the contracts sought. 5. An order that the Respondents pay to the Applicant interest on such sums of money as are ordered to be paid to the Applicant. 6. An order that the Respondents pay the Applicants costs of the proceedings herein. 7. Such other orders as the Commission in Court Session may see fit to make to provide relief to the Applicant. 6 The money orders sought were: 1. Non payment of wages of $650.00 per week for the Applicant's cumulative period of service: (March 2000 to 20 January 2001 being 43 weeks = $27,950.00 less $1,500.00) $26,450.00 1(a) Wages pursuant to the Electricians, &c, (State) Award. 2. A sum in lieu of termination of the Contract equivalent to 6 months remuneration pursuant to the terms of the 'Contract from the date of termination: (6 months @ $2,600.00 per month) $15,600.00 3. Reimbursement of the Applicant's out of pocket expenses for the UK equipment purchases. AU $40,212.36 7 When the case was opened, the issues requiring the Court's determination were described for the applicant as: 1. Whether in fact there was agreement to pay to the applicant $650 net per week; 2. Whether the Court should find that a period of reasonable notice, being six months, should be inserted into the contract; 3. Whether the respondent should reimburse the applicant for his out-of-pocket expenses; 4. Whether the applicant was engaged as alleged by the first and second respondents; 5. The culpability of the first, second and third respondents for the unfairness arising from the contract 6. Whether a determination of the expenses was incurred by the applicant between May and July 2001. 8 For the respondents, the issue of the Court's jurisdiction to make any orders was also raised. Given the claims advanced in closing Mr Terry's case, the question of whether some relationship other than that of employment existed, also needs to be considered. 9 The amendment made to the summons in closing submissions were described in this way: ... what is proposed to be done with this, ", or in the alternative the contract or arrangement," and then it follows on between the applicant and the respondents. That is the source of the amendment that is sought with leave as a point of clarification. There would be consequential amendments to the summons merely in how things were described. For example, if somebody was commenced employment they would commence employment on engagement and an amendment can be made overnight and provided to the court and to my learned friend in the morning. It is the position of the applicant that such an amendment makes no material change to the summons in the sense that there is no prejudice to the respondents. It is not a question where other evidence would have been led. The position of the respondents always has been quite clear since day one, they say there was no arrangement and, as I understand it, there is no objection to the amendment proposed. The evidence 10 Evidence was given by Mr Terry, Mr Geoffrey Maine, company director of Maine Lighting Pty Limited and Mr Christopher Davies, proprietor of Flying Gecko Productions, Key Grip. In the respondents' case, evidence was given by Mr and Mrs Hughes. 11 Mr Terry's affidavit evidence was that he was a former aid worker with contacts in the UK, which supply surplus military vehicles, equipment, spare parts and the like to the general public, aid agencies, mining/oil exploration companies and third world governments. In 1999, he imported two shipping containers of ex-military vehicles, spare parts, tools and supplies into Australia from the UK. His intention was to set up a workshop, to modify the vehicles and to offer them for sale, as well as offering to the general public, the servicing, repair and modification of four wheel drive motor vehicles. 12 In mid-1999, Mr Terry became acquainted with Mr Hughes, who was conducting a business providing lighting, plant and equipment to the Australian film industry. They became friends. In March 2001, Mr Hughes informed Mr Terry that he wished to build up his business by acquiring additional vehicles and equipment, similar to those which Mr Terry had imported. Mr Hughes offered Mr Terry a job and proposed that they go into business together as 'partners' for the Company. 13 Mr Terry accepted the proposal and in March 2001, he and Mr Hughes travelled together to the UK, where the purchase of various equipment was arranged. Mr Hughes later returned to Australia, but Mr Terry remained in the UK until July 2001. While there, Mr Terry purchased various equipment with his own funds, as well as attending to the purchase and shipping of equipment Mr Hughes had paid for. In doing so, he incurred various expenses. All of the equipment arrived in Australia in September. 14 Huge Lights leased a workshop at North Ryde in October 2001. After the equipment arrived, Mr Terry worked on the imported vehicles and some of those he had earlier imported himself. The running of the business was left to him by Mr Hughes. Mr Terry was not paid for his work, as agreed, nor was he reimbursed for the money he had expended in the UK. 15 Discussions with Mr Hughes about payment for what was owing to him, failed to result in any payment, apart from two cheques totalling $1,500. In January 2002, Mrs Hughes advised Mr Terry that she had become the director/secretary of the company; had taken out a loan for the business and directed Mr Terry to leave the workshop. Two days later, Mr Terry found that the locks had been changed at the premises. Mr Terry received no response to his subsequent communications with the respondents. 16 Mr Hughes' affidavit evidence was that he and Mr Terry had developed a friendship after meeting in 1999. Mr Hughes understood that Mr Terry was a qualified plumber and that in December 2000, he was working for a company, Quell Northern, which serviced fire fighting equipment. In 2001, Mr Terry enrolled in an electrician's course at TAFE, which he had been interested in pursuing. 17 In 2001, Mr Terry was planning to travel to the UK to see his father. Mr Hughes had also planned to take a holiday in the UK and offered to travel there with Mr Terry and to pay for his fare. Mr Terry accepted. They travelled together in the UK at various times and together looked at certain Land Rover equipment, which Mr Hughes was interested in acquiring. Mr Hughes decided to import some of this equipment. Mr Terry expressed an interest in working in the film industry, explaining that he had worked in the British film industry with military vehicles. 18 Mr Hughes and Mr Terry discussed the possibility of their going into business together at various times, but no agreement was ever formalised. Mr Hughes returned to Australia to arrange payment for what he had purchased. Mr Terry remained in the UK and helped Mr Hughes out, by checking the packing of containers and attending to certain quarantine checking. This work was undertaken as an act of friendship. Mr Hughes never employed Mr Terry. 19 The equipment Mr Hughes had purchased arrived in September. He then further discussed the possibility of going into business with Mr Terry, but no agreement was reached, nor did he ever employ Mr Terry. In October, Huge Lights leased premises from State Rail, where the equipment Mr Hughes had purchased was to be stored. Mr Hughes worked to clean, paint and restore the premises and to service the vehicles. Mr Terry offered to help him. 20 In October, Mr Terry accompanied Mr Hughes on a job for a Japanese film crew, to see what kind of work Mr Hughes did. Mr Terry was paid for this work and subsequently found work as a grip in the film industry. Mr Hughes denied, however, that he had ever employed Mr Terry. In October and November their relationship deteriorated. Mr Terry performed work on Mr Hughes' vehicles without his permission and brought other people's vehicles to the Company's premises, without permission. 21 It was the evidence of both Mr and Mrs Hughes, that Mrs Hughes had never been a director of the Company, although Mr Hughes had asked her to undertake various tasks while he was ill. She had then acted under a power of attorney. 22 Mr Hughes denied ever entering a partnership with Mr Terry or employing him. Mr Terry had only ever provided him with assistance as a friend. He never authorised Mr Terry to purchase equipment on behalf of the Company. He understood the equipment Mr Terry asserted he had purchased for Huge Lights, had belonged to Mr Terry and that he had arranged to have it shipped to Australia, for his own purposes. Mr Hughes told Mr Terry that if there was enough room in the containers, in which he was shipping the equipment he had purchased, Mr Terry could put that equipment in there. Mrs Hughes gave various supporting evidence. The parties' respective cases For the applicant 23 The case advanced for the applicant by Mr Cross of counsel was that the case involved quite a simple matter, a contract between Mr Terry, Mr Hughes and Huge Lights, which persisted for some ten months. The applicant was a simple man of action, rather than words, uncomfortable in giving evidence, who had difficulty in giving both his evidence in chief and in cross examination and who was subjected to extraordinarily onerous cross examination. He was dyslexic and had difficulties as a result, which were exacerbated by propositions put to him, in cross examination, which were clearly shown to have no foundation in fact. 24 For example, while Mr Hughes' condition as an alcoholic and his lack of a drivers licence, were put in issue, they were both conceded by Mr Hughes when cross examined. While allegations of a conspiracy were put to Mr Terry and Mr Maine, they had no foundation and were improperly put, given their foundation, revealed in Mrs Hughes' cross examination, to have been 'women's intuition'. This allegation should clearly not have been put (see NIML Ltd v MAN Financial Australia Ltd (No 2) [2004] VSC 510 at [6] and Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 200). Also to be considered was the intimidatory correspondence sent to Mr Terry, Mr Maine and Mr Davies, from a person known to the respondents, who became aware of the correspondence, but did nothing about it. 25 There were submitted to be similar problems with the respondents' denial of the agreement to pay Mr Terry $650 per week on the basis that Mr Hughes was not in a position to make such a payment, when the financial evidence clearly showed that he was. 26 It was submitted that Mr Maine's evidence was not seriously challenged, nor was that of Mr Davies. Their evidence was described as 'clear and balanced', despite the intimidatory correspondence they had received. It would be accepted. 27 As to the evidence of Mr Hughes, it was submitted that the Court could have no confidence in that evidence. His evidence sought to divert attention away from his dishonesty and tried to point the finger at Mr Davies and Mr Maine. The late affidavit filed in the proceedings, which sought to explain Mr Hughes' earlier evidence about certain invoices, was inconsistent and when that became obvious to him, the answers he gave in cross examination became evasive. His evidence was also inconsistent with earlier affidavit evidence and what he had earlier said in cross examination. It was argued that his evidence made 'absolutely no sense' and was a 'pathetic attempt to divert attention away from his own dishonesty'. 28 Reliance was also placed on the ongoing difficulties with the respondents meeting their obligations to produce documents, such as bank records and tax returns. Mr Hughes' explanation for his failures in this regard, were also submitted to be evasive and dishonest. 29 Mrs Hughes was also submitted to be an evasive witness, seeking to promote the respondents' case 'wherever possible whether her testimony was true or not.' She was the source of the extraordinary conspiracy allegations which were unsuccessfully made. 30 It was argued that the respondents' claims that there was no agreement of any kind and no work performed of the kind alleged, could not stand in light of Mr Hughes' evidence, where he accepted that work had been performed and that Mr Terry had been his agent in the UK. 31 The evidence showed an intention to create a legal relationship, offer and acceptance, as well as valuable consideration. The parties were legally capable of making a contract, the claim that Mr Hughes was too brain damaged to have done so, being effectively abandoned after the video of the UK trip was received in evidence. Mr Hughes also abandoned the claim that the trip was just a holiday. The work Mr Terry performed was also shown not to have been only nominal, as was initially claimed by Mr Hughes. 32 It was submitted that 'it is difficult to think of a contract that would be more amenable to relief' than that of the Applicant who worked 'for ten months for a sum total, it is generally agreed, of $1,500.' 33 When asked how it was submitted that the evidence demonstrated the existence of an employment contract, however, as claimed in the amended summons, an application was made for Mr Terry for leave to further amend that summons, explained to be by way of a' point of clarification'. 34 It was then submitted that while it was claimed to be a term of the oral contract, formed over a number of conversations, that Mr Terry be paid $650 per week, an order for payment of that amount was within jurisdiction, despite the approach of the Court of Appeal in Sydney Water Corporation Ltd & Anor v Industrial Relations Commission of NSW & Anor (2004) N61 NSWLR 661. Here the contract was attacked on other fairness grounds relating to notice and expenses and thus the claim for payment of salary could be entertained. (See Thomson v Societe Generale Australia Limited [2006] NSWIRComm 24 at [169] - [170].) 35 As to notice, it was claimed that the contract contained no notice period and that the applicant was terminated without notice. Reasonable notice in the circumstances was six months. As to the expense claim, Mr Hughes did not suggest that the failure to reimburse expenses was fair, rather that expenses had not been claimed. The evidence showed that the expenses had been incurred while Mr Terry was acting as Mr Hughes' agent and Mr Terry's evidence as to the invoices on which he was cross examined should be accepted. It was explained however, that what was claimed was 'fuel, food and accommodation' validly incurred, not other things which appeared in the invoices, although those expenses had not been excised from the claim advanced. It was accepted that such an exercise could be undertaken in calculating the money order to be made. It was submitted that money orders would flow in relation to the equipment claimed. Mr Terry's evidence that he paid cash for that equipment, would be accepted. 36 It was also submitted that the work was performed in an industry in and of New South Wales. The idea that the UK trip was just a holiday, or merely involved favours, was abandoned in the respondents' evidence. The performance of work in Sydney was also established. 37 It was also submitted that the evidence showed Mr Hughes was in receipt of income of $48,000 a year from the sale of a truck and that Huge Lights was an operating business. It was submitted that 'the relationship we would say would never arise in a level of equality to a position where it might be considered to be some form of partnership'. It was argued that Mr Terry was taken on by Huge Lights 'in a form, either employment or in some other form of engagement to work for the business in consideration for a living wage.' 38 It was also argued that there was no level of equality which would cause the Court to refuse to exercise its discretion to treat Mr Terry like an employee who had been underpaid. 39 As to the claimed apprenticeship, it was submitted that an apprenticeship 'in fact' did not have to be shown. The claim advanced for payment on that basis, was 'to the effect of what an apprentice would receive as payment' and that the relationship was akin to that. 40 The evidence showed that Huge Lights was a party to the contract and liable; and that Mr Hughes had the necessary culpable connection with the unfairness demonstrated (see Brown v Rezitis (1970) 127 CLR 157 and Ace Business Brokers Pty ltd v Phillips-Treby (2000) 100 IR 420 at 439). Mrs Hughes was also a key participant in the termination of the contract and was responsible for disposal of part of Huge Lights' assets in 2002. She too, had the necessary connection with the unfairness complained of. For the respondents 41 The case advanced for the respondents by Mr Newell of counsel was that on the evidence there was no contract, arrangement or even an understanding between the parties which was unfair, so as to warrant the grant of any of the relief sought. 42 If a contract was found to exist however, and there was no express provision as to notice, the common law implied a term requiring reasonable notice to be given. It followed that there was nothing in the contract which permitted an unfair termination and what was sought, in this respect, was merely a breach of contract claim. The contract required no variation to make it fair, so far as notice was concerned. 43 As to the expenses claim, either they were properly recoverable under the contract or not, but no term of the contract was pointed to, in the applicant's case, which was claimed to be unfair. Certainly the evidence did not demonstrate that recovery of expenses was precluded by the claimed contract. It followed that there was no entitlement to any relief under s 106. 44 It was also claimed that there was an entitlement to $650 per week wages, which had not been paid. That claim too, was a breach of contract case, the applicant complaining that the promise had not been honoured. So understood, it would be accepted that the claims advanced, could not result in any relief. 45 It was also submitted that none of those who gave evidence 'were conventional characters with conventional career paths'. The evidence showed that Mr Hughes and Mr Terry had travelled to the UK as mates, with Mr Hughes paying airfare and accomodation expenses, while they travelled together looking at equipment. There was no dispute that a business was discussed, as was the possibility of them working together. On the evidence, people in the film industry operated as sole traders. Mr Hughes said he promised to introduce Mr Terry to people in the industry and he did so. Mr Terry now worked in that industry as a sole trader, as a result. 46 The claim that Mr Terry was an employee of Mr Hughes, ran counter to all of the evidence as to how the film industry operated. An understanding that Mr Hughes was to pay him $650 a week was submitted to be fanciful, given the evidence, which included that from July to October 2001, Mr Terry had nothing to do on his return to Australia. On his evidence, Mr Terry never discussed his entitlement to this money with Mr Hughes, nor did he ever make any claim for such payment, even when involving Mr Maine in discussions with Mr Hughes. Even when he went to see his solicitor after the lockout, his evidence was that he wanted to pursue the return of his equipment, not a claim for unpaid wages. 47 It was accepted that much of the case would turn on considerations of credit, but in a context where Mr Terry had to make out his case. The claim of an apprenticeship had no foundation, not even in Mr Maine's evidence, when it was examined. There was also no evidence that Mr Terry had ever worked as an apprentice electrician. 48 Mr Hughes plainly assisted Mr Terry to get into the film industry. That was an act of generosity. Mr Terry had greater aspirations, he wanted to be involved in Mr Hughes' business, with the equipment acquired in the UK. Had the relationship not broken down, undoubtedly Mr Hughes would have let Mr Terry use it, just as Mr Maine had used Mr Hughes' equipment. 49 Mr Terry found, however, that things did not develop as he wished. Things took too long; the machinery was not registered and the business had not begun to trade. Mr Terry was agitating for more activity and the expectations which he had were not being met. That was why Mr Terry was complaining that Mr Hughes was not doing enough and why he did not complain about not being paid $650 a week. It would be accepted that Mr Terry's claims were really 'gilding a lily'. While he worked away in the workshop, he had no obligation to do so and when asked on 18 January, why the machinery there was totally disassembled, his evidence was not because he had been instructed to do so by Mr Hughes. 50 Mr Terry's evidence did not show that any business structure had ever been agreed, to the contrary, his complaint was that nothing had been agreed. This was why the relationship fell apart, when Mr Terry started making demands and threats about customs documents. While the state of Mr Hughes' evidence about various of the relevant invoices, was submitted to be muddled, it could not be overlooked that Mr Terry had recently also produced documents which he explained were 'accidentally' in his possession and which he had forgotten about. That evidence was not credible. Mr Terry claimed to have taken them in November 2001, a short time before Mr Hughes claimed Mr Terry had made threats about those documents. Mrs Hughes' diary also shed light on that matter. Threats were made at a time when she was seeking to protect her husband from being further badgered by Mr Terry, the result of which was the termination of Mr Maine's friendship with Mr Hughes, of over 20 years duration. 51 It was submitted that the only proper inference from the evidence was that Mr Terry had made threats that he would go to customs, if he was not given what he wanted. This situation had emerged in the evidence, in circumstances where it was clear that not even the respondents' legal representatives had initially been told about what had been done with the customs documents. The proper inference was that Mr Terry was seeking to secure something, which was not his as a matter of right. 52 These proceedings were submitted to be a further elaboration of that abuse. The submission that Mr Terry was a simple man, did not explain the documents in his possession, which showed that someone - either Mr Terry or someone else, altered the invoice he obtained from Witham (Specialist Vehicles) Ltd ('Withams'), because other copies of that document obtained from Withams itself, were in different form. The evidence showed that Mr Hughes had already paid Withams. The claim that Mr Terry had paid Withams anything, could not be accepted. The goods were not paid for twice. Mr Terry had no receipt and if he had paid cash, as he claimed, it must be expected that he would have been given one. 53 The idea that Mr Terry was claiming money which he had not spent was not a novel one. There was no evidence to support his claim that he had withdrawn cash from an account in the UK, in order to make any of the payments he claimed to have made, a simple step to have taken, by tendering the corroborating accounts, documents entirely within his control. The same difficulty arose in relation to the Stanton Transport account and that from GC Holding. Mr Terry's evidence as to these matters, including his knowledge of the identity of Ms Holdings' natural father, and the time at which these documents came forward into the evidence, showed that the documents were fabricated for the purpose of the proceedings. Mr Terry's explanations as to all these matters, were not credible and could not properly be accepted. Other evidence showed that the goods in question had also been transported and paid by other means. 54 It was submitted that the difficulties with Mr Hughes' credit were not the same as those which arose in relation to Mr Terry's evidence. A review of the evidence showed that Mr Terry's story had changed considerably; indeed he was prepared to say anything which might further his case. There had been at least three versions of what he claimed had been agreed and he had given extraordinarily implausible evidence about a range of matters. 55 The same could not be said about Mr Hughes. He did not tell the truth to customs, but a review of his evidence showed that he had not come to Court prepared to lie about that, or other matters. He was plainly confused about some matters, but readily made concessions in cross examination about other matters, for example in relation to his drinking problems. His evidence was consistent with his mental state after his accident, as the result of which he had a problem focussing and processing information. There was also corroborative evidence which supported the evidence Mr Hughes had given, even evidence given by Mr Terry himself, for example in relation to the claimed $650 per week. Mr Terry had not even told Mr Maine about that entitlement, but made the claim for the first time in these proceedings. Furthermore, no connection had been established between Mr Terry and Mrs Hughes, which would warrant any orders being made against her. 56 It was accepted that there had not been production of various records by the respondents. Nevertheless, it was submitted that all of the evidence was consistent, there had been little trading activity conducted by Mr Hughes and Huge Lights at the relevant time. Consistently, that was what lay at the heart of Mr Terry's complaint. Mr Hughes had sold his lighting truck and was not doing work of that kind, when he travelled to the UK. He used other funds to purchase equipment in the UK, but was not advancing that business or his discussions with Mr Terry after his return to Australia, as to how they might go into business together using that equipment. That was what led to the falling out and ultimately, these proceedings. Reply 57 In reply it was submitted for the applicant that the submissions advanced for the respondents sought to avoid dealing with Mr Hughes' lack of credit, notwithstanding his clumsy efforts, for example, to claim that he had paid 1,000 pounds for two generators, which Mr Terry had paid for, as his Barclays' card account showed. The evidence was just made up, as it went along and changed so often, it was laughable. 58 By way of contrast, documents evidencing purchases of 120,000 pounds in the UK had not been produced by the respondents and no proper explanation for the failure to produce those and other documents, had been advanced. 59 The evidence of Mrs Hughes supported Mr Terry's evidence that the purpose of the trip to the UK was to purchase equipment. That evidence demonstrated how evasive Mr Hughes' evidence had been, by way of contrast. The evidence showed that Huge Lights was an active business in 2001, even though Mr Terry was unable to test what income it had generated after May, because of the respondents' failure to produce documents. 60 Mr Hughes' evidence about the Withams invoice was not credible and would not be accepted. His evidence in cross examination and re-examination about what he had acquired in the UK and what he had paid for that equipment, altered markedly. While denying knowledge of equipment Mr Terry claimed payment for, when swearing his affidavits, Mr Hughes later claimed himself to have paid for that equipment. Mr Terry had produced the only original Withams' invoice, as an exhibit to his affidavit. There was proof that it was true and would be accepted. 61 What would not be accepted was that Mr Terry was aware of what had occurred with customs and that he had put leverage on Mr Hughes over that matter. Nor would the submissions about the absence of receipts; the respondents themselves had not produced any receipts. As to the cross examination of Mr Terry and where he had got his money from, it was submitted that: It was put that because Mr Terry was questioned in relation to where he got the money that the applicant should have sought bank accounts and somehow presented them to the court. That's a stupid suggestion; there was not ever a subpoena issued. If there was sought to be more proof on that point it is open to the respondents to do what they wished. 62 Mr Terry's evidence as to this and other claims, such as in relation to the transport costs which he had incurred, was his proof. He had not deviated from his evidence. By way of contrast, Mr Hughes had provided various explanations. If Mr Hughes had paid for transport as he claimed, there was no evidence of such payment having been made. The only consistent evidence was that of Mr Terry. The equipment got to the docks, after all. It followed that his claim would be accepted. Consideration 63 This is one of those cases where the accounts of what transpired between the parties altered very significantly during the course of the hearing, when oral evidence was given. Those versions of the relevant events differed markedly from accounts earlier given in the parties' respective pleadings and in affidavits earlier sworn by various witnesses. The applicant's summons was amended on more than one occasion, including during final submissions, in response to a question which I then raised. What developed in the course of the hearing, explained why it was that in closing submissions, Mr Terry sought that leave. It was not opposed, and so the application was granted, despite the late stage at which it was sought. It was at that point, that it was the claim that a relationship other than that of employment arose for consideration. 64 On all of the evidence, there could then be no real doubt that Mr Terry and Mr Hughes, at the least, had entered a business arrangement together, given all that they had done together in Australia and the UK. Whether or not the claims which Mr Terry finally pressed were made out, however, is a different question, which must be resolved on the basis of a close consideration of the evidence, and whether Mr Terry has met the onus which falls upon him, as the applicant, to make out his case. From any view, what the case was and even what relationship Mr Terry claimed to have had with the respondents, changed significantly during the course of his evidence. There were also considerable difficulties with the respondents' case, but at the end of the day, there is no onus on them to make out a defence to the claims advanced. 65 What this case presented was diametrically opposed versions of what had occurred between the parties and the nature of their relationship. Difficulties flowed from contradictory affidavit, oral and documentary evidence. Both Mr Terry and Mr Hughes altered their evidence in surprising ways. It is accordingly necessary to examine that evidence closely, in order to determine firstly, what in fact took place between the parties; secondly whether the parties' arrangement was unfair as claimed and finally, whether any discretion could be exercised under the Act. 66 In making these observations, I do not discount the complaints made as to the conduct of the respondents' case. There were obvious problems and they were not only in relation to the respondents' production of documents. I accept the complaint made in relation to the allegation of conspiracy advanced against Mr Terry, Mr Maine and Mr Davies. Its foundation was revealed in the cross examination to have been Mrs Hughes' 'intuition'. 67 That was an entirely inappropriate basis for such an allegation to have been made. It was plainly an allegation which ought not to have been advanced by the respondents, or by their legal advisers. It led to an approach to the cross-examination of Mr Terry and the witnesses he called, which was entirely inappropriate. The same may be said in relation to the question of whether Mr Hughes had problems with alcohol and his NSW drivers licence. Considerable time was wasted in cross examination of Mr Terry and Mr Maine about these matters, when they were readily conceded by Mr Hughes, when he was cross examined. In making that observation, it should be noted that Mr Hughes was not present in Court during the entirety of that cross examination, as the result of the approach taken to cross examination of Mr Terry and Mr Hughes and the questions of credit which arose from their evidence. 68 These may all be matters appropriate to be considered in relation to the question of the costs of the proceedings. That does not, however, remove the necessity for proper consideration to be given to whether or not Mr Terry made out the case which he advanced. I am unable to accept, as was submitted for Mr Terry, that the deficiencies in the respondents' approach to the case were such as to explain various of the difficulties in Mr Terry's case. 69 Indeed, to the contrary, I am well satisfied that the difficulty with much of Mr Terry's evidence was that it was plainly embellished and sought to be improved over time, as he came to appreciate difficulties which the case being brought against him raised. That he had such an appreciation was quite apparent. Despite his difficulty with reading, Mr Terry obviously had no difficulty in his understanding, consistently with his work before and after his arrangement with Mr Hughes. Having carefully considered the evidence, I have come to the view that Mr Terry's evidence had to be approached with the greatest caution. I became entirely satisfied that it was not given by way of strict adherence to the truth, as the oath he had given required. 70 A good illustration of why I formed that view may be given by reference to the evidence given by Mr Terry in relation to a Mr Stanton. Mr Terry formed a relationship with a Ms Lucy Holding. She was the stepdaughter of a Mr Graham Holding, for whom she worked in the UK as an accountant. Mr Holding runs an ex-military equipment supply business. It was Mr Terry's case that certain of the equipment for which he sought payment in these proceedings had been purchased from Mr Holding, while Mr Terry was in the UK. He had bought other equipment from Mr Holding in the past. 71 It was Mr Terry's evidence that he had paid Mr Holding in cash for the equipment he had purchased for the respondents and that he had obtained that cash from his mother, who was a signatory on accounts which he maintained in the UK. That money had come from the proceeds of the sale of a vehicle. The relevant bank records were not in evidence. Mr Terry explained that he had never brought such documents to Australia and could not produce them. 72 One of the issues in the case was whether Mr Terry had, in fact, paid for that equipment. The authenticity of a document said to be an invoice provided by Mr Holding, as well as the authenticity of other invoices relied upon by Mr Terry, was in issue. Other issues were whether Mr Terry had paid for various equipment to be transported in the UK, and even who had actually provided the transport services. 73 Mr Terry's evidence was that he had used a firm called Stanton Transport and that he had paid the driver who made the deliveries in cash, upon receipt of the goods. He explained that this arrangement was made in order to get a cheap price for the delivery service. Income tax could be avoided by the driver. In this way, money had been saved on transport costs, to the respondents' benefit. 74 Ms Holding came to live with Mr Terry in Australia in November 2002. In his affidavit of April 2004, it was Mr Terry's evidence that he had arranged for transport 'through Stanton Transport who was one of my contacts' and that 'Lucy Holding is Mr Stanton's daughter who was known to me.' When he was cross examined, however, both pieces of evidence were departed from in quite surprising ways. 75 As to Stanton Transport, Mr Terry's oral evidence was that he did not in fact know of that firm at the time he arranged for the transport; that he had been introduced to it by Mr Holding; that he never, in fact, dealt with the firm, but had dealt direct with a driver, whose phone number he had been given, but whose name he did not know and whom he had paid in cash, without receiving a receipt. Mr Terry had since learnt from Ms Holding, that Stanton Transport did not, in fact, exist. The letterhead of the invoice attached to Mr Terry's affidavit contained no phone number or VAT number and showed an address at which Ms Holding had herself resided in the UK. On his evidence, Mr Terry had asked Mr Holding to arrange for an invoice to be provided for the transport costs and Mr Holding said that he would ask Ms Holding to do so. While the invoice was dated 29 June 2001 and was made out to Huge Lights at Mr Hughes' Beacon Hill address, on Mr Terry's evidence, Ms Holding posted it to him in Australia, at his request, because he had paid for that transport. In fact, on Mr Terry's evidence however, he had never provided this invoice to Mr Hughes until it was attached to his second affidavit in these proceedings. 76 Mr Terry denied, however, that the invoice was fabricated, long after he had returned from the UK. He explained that he had simply been unable to locate that and other invoices which he relied upon, for a period and had never had the opportunity to discuss the reimbursement of this and other expenditure incurred for the respondents in the UK with Mr Hughes, during the course of their dealings. He claimed that Mr Hughes simply fobbed him off continually and refused to discuss his claims. 77 As to Mr Stanton, Mr Terry was extensively cross examined as to whether he knew Ms Holding's natural father. Mr Terry repeatedly denied knowing Mr Stanton, or having discussed him, or his name with Ms Holding. He denied knowing Mr Nicholas Stanton and said that he had never heard of him and did not know of him having any connection with Ms Holding. At one point, when asked if his solicitors had raised Mr Stanton with him, he said 'Mr Stanton wasn't even mentioned to me up until this point, no'. After Mr Terry's attention was drawn to his earlier affidavit evidence, where he had said he knew Ms Holding was Mr Stanton's daughter, he agreed that his affidavit evidence was true and then tried to explain his earlier answers by saying that 'When I say I didn't know who her father was I had never met him. I don't know him that well'. Mr Terry then claimed to be confused and then repeated 'I did not know Mr Stanton' and 'I did not have any idea who her father was. I wouldn't be able to pick him if there were five guys sitting there, I wouldn't be able to tell you who her father was. So no, I didn't know him.' He then acknowledged that Ms Holding had told him who her father was, but he could not recall when, but thought it was when they were living together in Australia. He denied, nevertheless, that this claim and the invoice relied upon, were a 'put up' job. 78 On his evidence, Mr Terry is dyslexic. He explained in cross examination that he had difficulties in coping with the administrative requirements involved in running a business, even though he had himself conducted businesses in Australia. Mr Hughes and Mrs Hughes gave corroborative evidence of this difficulty. Given his evidence in cross examination, it was quite apparent that Mr Terry had problems reading and dealing with paper work. This problem was later relied upon to explain various of the difficulties which emerged with his evidence. 79 The evidence as to Mr Terry's problems with reading and dyslexia sat oddly however, with other parts of his evidence. For example, in an affidavit sworn in April 2004, despite having earlier claimed to have been Mr Hughes' apprentice, Mr Terry denied that Mr Hughes had ever given him any assistance with his TAFE homework, because his dyslexia 'did not impede my studies'. Given the difficulties which Mr Terry seemingly had in cross examination, this evidence was also difficult to accept. 80 That Mr Terry was being untruthful in his evidence about various matters, simply cannot be doubted, on this and other evidence, which it will be necessary to deal with. 81 Having said all of this, I observe that there were also significant problems with Mr Hughes' evidence. At the end of the day, they were not, however, quite of the same magnitude. Mr Hughes made concessions in his oral evidence, which accepted the truth of parts of the case brought against the respondents and which were plainly not in his interests. Nevertheless, aspects of his evidence also required careful consideration, in seeking to resolve what in truth took place between these parties. 82 Given this situation, it is necessary to give close consideration to the evidence and how it altered over the course of the hearing, in order to reach conclusions about matters in issue between these parties. The development of the evidence 83 On the evidence, there was no doubt that Mr Terry performed work which was of benefit to Mr Hughes, given the business they were in together. One of the crucial questions to be determined, however, is whether or not Mr Terry performed any work pursuant to any contract, as he claimed in his summons. The word 'contract ' is defined in s 105 as: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. 84 Section 106 of the Act provides: 106 Power of Commission to declare contracts void or varied (1) The Commission may make an order declaring wholly or partly void, or varying, any contract whereby a person performs work in any industry if the Commission finds that the contract is an unfair contract. (2) The Commission may find that it was an unfair contract at the time it was entered into or that it subsequently became an unfair contract because of any conduct of the parties, any variation of the contract or any other reason. (2A) A contract that is a related condition or collateral arrangement may be declared void or varied even though it does not relate to the performance by a person of work in an industry, so long as: (a) the contract to which it is related or collateral is a contract whereby the person performs work in an industry, and (b) the performance of work is a significant purpose of the contractual arrangements made by the person. (3) A contract may be declared wholly or partly void, or varied, either from the commencement of the contract or from some other time. (4) In considering whether a contract is unfair because it is against the public interest, the matters to which the Commission is to have regard must include the effect that the contract, or a series of such contracts, has had, or may have, on any system of apprenticeship and other methods of providing a sufficient and trained labour force. (5) In making an order under this section, the Commission may make such order as to the payment of money in connection with any contract declared wholly or partly void, or varied, as the Commission considers just in the circumstances of the case. (6) In making an order under this section, the Commission must take into account whether or not the applicant (or person on behalf of whom the application is made) took any action to mitigate loss. 85 On Mr Terry's case, when the hearing commenced pursuant to the amended summons filed in April 2006, his claim was that he had agreed to perform work as an employee of Huge Lights, in early March 2001. He also claimed to have been promised $650 pay per week, a 'living wage', which had never been paid. Nor had he been paid expenses which he had incurred for Huge Lights during the UK trip with Mr Hughes, nor was he given any notice or payment in lieu, when the employment was terminated, without notice, in January 2002. 86 In his original affidavit, sworn in April 2002, Mr Terry's evidence was that in March 2002, Mr Hughes 'offered me a job and proposed that he and I go into business together and that I use my expertise and contacts in the United Kingdom to purchase the additional equipment for and on behalf of the First Respondent.' The proposal also included that Mr Hughes 'and I go into the film industry business together' for Huge Lights as "partners". Mr Terry claimed that Mr Hughes said: You and me will go to England at the Company's expense and you through your contacts will arrange to buy and ship the equipment to Sydney. The company will pay 95% of the costs and you will pay 5% and use your contacts. When we get back you will work in the business and you will get 20% of the profits until the cost of the equipment is reduced to zero and then we will each receive 50% of the hiring fees. 87 Living expenses were discussed, with Mr Hughes saying 'we will each draw a living wage of $650.00 net per week.' Mr Terry's evidence was that he agreed to this proposal. 88 Mr Terry claimed that as a result, he and Mr Hughes travelled together to the UK, where Mr Terry spent $40,212.36 on equipment, living expenses and accommodation. Mr Terry claimed that he had never been repaid these expenses, despite repeatedly asking about them, nor was he paid the agreed $650 weekly wage. He claimed only to have been paid $1,500 on one occasion, by way of two cheques for two film jobs undertaken for Huge Lights. 89 Mr Terry claimed that on 18 January 2002, Mrs Hughes told him to stop work and leave the premises, saying: I am now the company secretary and director, I have taken out a loan for the business that is why I have become the director/secretary and I am not prepared to put any more money into the business until we have a meeting. 90 It must be immediately observed that this evidence, which was denied by Mrs Hughes, could not readily form the basis of a finding that Mr Terry was employed by Huge Lights, which Mr Terry, no doubt, appreciated once the respondents put on their reply and affidavit evidence. 91 It was the respondents' case that no contract was ever entered by the parties. In the reply filed in September 2002, it was claimed that Mr Terry was a personal friend of Mr Hughes, who had accompanied him to the UK as a friend and had there provided Mr Hughes with some nominal assistance in appraising equipment, which Mr Hughes had decided to buy for Huge Lights. Mr Hughes had promised to recommend Mr Terry for suitable subcontracting work in future, if Huge Lights succeeded in securing any business. The out of pocket expenses claimed were denied as having been incurred for Huge Lights, as was the liability for the wages claim. 92 In his affidavit of 25 September 2002, Mr Hughes' evidence was that he first met Mr Terry in 1999 and established a friendship with him. In 2001 Mr Terry told him that he was unhappy with his employment by a business, Quell Northern. At that time, Mr Hughes proposed to travel to the UK to visit his father and offered to pay Mr Terry's fare, so that he could keep him company while he was there. Mr Terry agreed, saying 'it will be wonderful to see all my old friends again'. They travelled together in the UK; each visited their families and together they inspected ex-military equipment which Mr Hughes was interested in acquiring, because he wanted to set up a business in the film industry, hiring out that equipment. Mr Terry was also interested in working in that industry and Mr Hughes suggested that he could get work as a gaffer. During their travels they also discussed setting up business together. 93 After about five weeks, during which Mr Hughes had purchased various equipment, he returned to Australia to arrange for its payment. He had arranged to have the equipment shipped to Australia through a friend, a shipping broker. Mr Hughes' affidavit evidence was that Mr Terry, who remained in the UK, agreed to provide 'some assistance by doing some of the quarantine and checking work on the containers and making sure that the containers were properly packed. He did so as a friend, at no stage was there any talk of employing Martin or paying Martin for his time.' The equipment did not arrive in Australia until September. 94 Mr Terry returned in July. He and Mr Hughes again discussed going into business together, but nothing was finalised. Mr Hughes leased a property at North Ryde to store the equipment he had purchased. Mr Terry offered to help him, saying 'Why don't you let me help you, it is the least I can do after you paid for my trip to England.' 95 In October Mr Hughes took Mr Terry with him on a job for a Japanese film crew. He paid Mr Terry for that work. On Mr Hughes' evidence, this introduction later enabled Mr Terry to find work as a grip. 96 In October and November, Mr Terry became 'aggressive and pushy' and Mr Hughes began having doubts about going into business with him. Mr Terry wanted to become a signatory on the Huge Lights' cheque account, which Mr Hughes refused. Mr Hughes denied having ever entered any relationship with Mr Terry. He claimed that Mr Terry began disassembling his vehicles, without his consent and also brought his friends' vehicles to the premises, without his knowledge, in order to work on them. 97 Mrs Hughes' evidence in her 25 September 2002 affidavit, was that she recalled her husband and Mr Terry discussing looking at ex-military equipment while they were in the UK, before they left, because Mr Hughes was interested in buying some second hand vehicles. She was surprised to hear from Mr Hughes while he was in the UK that he had bought a truck and other equipment, because he had not discussed this with her beforehand. She had a conversation with Mr Terry after Mr Hughes returned, who told her that he had arranged for a friend's engine to be shipped back in the same container as Mr Hughes had arranged for the equipment he had bought. 98 On Mrs Hughes' evidence, in October 2001, her husband told her: "Martin's becoming very pushy and bossy. He wants to take over things and is insisting that things be done his way. He also wants to become a signatory on the cheque account for Huge Lights Pty Limited because he says he wants to be able to order spare parts for the business and to pay for them. I can't agree to this. I don't know what he's going on about." 99 Mrs Hughes had heard Mr Hughes and Mr Terry discussing going into business together, but understood that nothing was ever agreed. She denied ever having heard the idea of Mr Terry being employed, being discussed. 100 On 23 September 2002, Mr Terry swore a second affidavit. In it, he claimed that in February 2001 he and Mr Hughes had discussed him undertaking a TAFE electrical course. He claimed to have had a conversation to this effect: JH "It would be good for our business if you do a TAFE electrical course. Once we get the gear from England we will be concentrating more on the Film Industry side of the business. It is important that you be a qualified electrician, although it is not essential for the film industry. In the industry they have special dispensation, if it was in any other field you wouldn't be allowed to do the work. As my apprentice, you can work under my licence without any problems. I will take you on an as an indentured apprentice and sign the papers for the company." ME "OK John, that's a good idea, I will enrol at North Sydney Tech College in the next couple of days. You will need to sign as my boss". JH "That's no problem, it would (sic) my pleasure. Look forward to working together and if the film industry is light on for work we can always do normal electrical work outside" 101 Mr Terry enrolled at North Sydney Technical College, claiming in his application form to be employed by Huge Lights. Despite this, he said he then had a conversation with Mr Hughes, to this effect: ME "I have enrolled at North Sydney TAFE, boss." JH "Don't call me boss, we are partners" 102 This evidence later came to form the foundation of a claim that Mr Terry had been employed as Mr Hughes' apprentice, Mr Hughes being a qualified electrician. Even so, Mr Terry also claimed that while in the UK they had another discussion to this effect: JH "When we get back to Australia we'll sort out the company structure and I will make you a company director and arrange for you to have access to the company accounts and cheque books." ME "That's fine John I just want things done properly. I have put all my efforts into this business and I want it done right." JH "I don't have any problems with that, I want things sorted out properly as well." 103 In March 2007, the summons was amended to claim that in addition to an agreement to a 'living wage' of $650 per week, payment was sought in the alternative, pursuant to the Electricians, &c (State) Award, because Mr Terry had become an apprentice electrician. 104 As to expenses incurred while in the UK, Mr Terry's evidence was that he and Mr Hughes had another conversation in the UK to this effect: ME "Look I am not here to baby sit you John, we are here together trying to do some business and I can't arrange all this and baby sit you while you are going through your drinking binges." JH "I can't stay in England any longer because it is getting to me, I have to get back to Australia because I can't stay sober. I want you to stay here and take charge make any other purchases we need to make and arrange the shipping of the equipment to Australia. Do what you think is best for our business." ME "Ok mate I will get you on a flight out of here as soon as I can arrange it with Singapore Airlines". JH "Do the best you can to get the gear, I will arrange payment through my Bank in Sydney and if you need money, ring me there. I will arrange for the payments. If you need to outlay cash and are out of pocket the company will reimburse you. You have the authority to make decisions on my behalf and to take delivery of the gear ME "John, just make sure you are there if I need to speak to you." 105 Mr Terry described how he then went about purchasing the equipment which comprised a large part of the expense claim, annexing various documents supporting the claim, to his affidavit. 106 Mr Terry claimed that he asked Mr Hughes to meet these expenses in August 2001 after his return and that Mr Hughes agreed to 'sort it out'. This did not occur and in October, he asked a friend, Mr Maine, to help. They met with Mr Hughes and they had a discussion to this effect: ME "Geoff will you mediate between John and me about our financial arrangements and company structure, I am not happy with the lack of arrangements and because you are not involved in our business we would like your opinion about what we should do". JH "I would like your opinion on what is the best way of setting up the company structure and sorting out the finances and how this might best work out between us". GM "Work out what both of you have put into the business, take into consideration that Martin has done basically all the work and base the company structure around that. Once you work out the percentages you can each take out a percentage drawing". 107 Despite this advice, the expenses were never paid, nor was the agreed $650 per week. On Mr Terry's account of this conversation, there was, of course, no mention of Mr Terry having been an employee, or having been promised a wage, or having outstanding expenses to be paid. 108 Mr Hughes swore a further affidavit in March 2004, denying Mr Terry's second version of events. He explained that he was aware that Mr Terry had enrolled in a TAFE course and he had helped him with his homework, because Mr Terry was dyslexic. He denied having ever employed Mr Terry, or having gone into partnership with him, or having given him a letterhead which Mr Terry claimed to have used for his TAFE application. He also denied any knowledge of the equipment Mr Terry claimed to have purchased for Huge Lights in the UK. Mr Hughes said: I went to England for the purpose of buying equipment but that MT came with me purely as a companion and for his own purposes. MT had relatives in England, he originally comes from England and he had his own equipment and possessions in England that he wished to ship out at the same time. 109 Mr Hughes' evidence was that he understood that Mr Terry had owned equipment in the UK and that he had arranged to have it shipped to Australia with the equipment Mr Hughes had purchased for his own purposes. Mr Hughes again claimed he arranged and paid for the transport of the equipment he had purchased in the UK and that Mr Terry had assisted him as a friend, at the same time as attending to have his own equipment transported. 110 Mr Hughes again agreed to having discussed going into business with Mr Terry, but on his evidence, they had not come to any agreement. They had also discussed Huge Lights engaging Mr Terry as a subcontractor. Mr Hughes' evidence was that the conversation involving Mr Maine did not result in any agreement, it was purely to ventilate ideas. That evidence in part corroborated Mr Terry's account of the discussions. Mr Maine gave evidence to similar effect. 111 Mr Hughes' affidavit also dealt with an affidavit sworn by Mr Maine. His response was, that if Mr Terry was seen working at his premises by Mr Maine: There was plenty of space at the premises, so I agreed. If MT was seen by GM at the premises working on vehicles then MT was working on his own vehicles, not on any vehicles that belonged to Huge Lights Pty Limited or to myself, nor was MTG involved in any activity associated with my business. He was merely there on the premises working on his own affairs and his own vehicles because of the generosity and largesse extended to him by my company and myself in permitting him to use part of the premises which I had leased for these purposes. I was merely doing a mate a favour and nothing more. At that point in time MT and I were still friends. 112 Mr Hughes also said he 'put in a good word' for Mr Terry with Mr Maine, who gave him some work, for which he was paid by Huge Lights, under an arrangement made with Mr Maine. 113 Mrs Hughes swore an affidavit on 5 March 2004, in which her evidence was that she had heard Mr Terry telling her husband that he intended to take an electrical course at TAFE and later, that he had enrolled in the course. She also said that her husband had assisted Mr Terry with his homework. She had asked Mr Terry what he intended to do with his studies when he went to the UK and he said he would 'worry about that when I get back.' 114 Mrs Hughes recollected her husband discussing that he would never employ anyone, because it was too expensive and that while he and Mr Terry had discussed starting a business in partnership, on her understanding, that had never gotten anywhere. Her husband had never told her that he had employed Mr Terry. 115 Mrs Hughes also described the effects of an injury Mr Hughes had suffered at work in 1996, as the result of which he had sustained brain damage, resulting in changes in his personality and an inability to continue working as actively as he had done in the past. Afterwards, he earned income principally from leasing out his equipment. Before he went to the UK, Mr Hughes sold his lighting truck, the key tool of his former gaffer operation in the film industry. 116 Mrs Hughes also described Mr Hughes' idea of buying equipment in the UK to establish an equipment hire business. On her understanding, he had no definite plan, before he left. He did purchase such equipment and on his return leased premises, but his health was not sufficient to follow through with his plans. He and Mr Terry then had a falling out, which aggravated his physical and mental condition. Eventually he attempted suicide. 117 Mrs Hughes agreed that Mr Maine had asked her what was going on between Mr Hughes and Mr Terry in late January 2002. She told him that it had nothing to do with him. On Mrs Hughes' evidence she had little to do with her husband's business until his suicide attempt. While he was in hospital she was given a power of attorney and became actively involved in the Huge Lights business as a result. She understood that by being given a power of attorney, she became a co-director of Huge Lights. She had no business experience and her objective was to make sure that the equipment which had been bought by Mr Hughes was protected and safely stored so that it could not be taken away from the premises. 118 A dispute developed with Mr Maine over money and equipment. Mr Maine returned some of Mr Hughes' equipment and Mrs Hughes sent him a bill for its use, which resulted in a heated disagreement between them. On 24 January 2002, Mr Maine left a message on Mr Hughes' mobile phone, saying: "I had a conversation with Michelle last night, I don't know what she is talking about but if you want her to allow her to run your life you can remove all your lighting equipment within and I can't now recall whether he said 24 or 48 hours but I do recall that it was a very short period of time." 119 On 21 April 2004, Mr Terry swore another affidavit in which his evidence was that during his employment with Quell Northern, he and Mr Hughes had numerous conversations and made plans for their business arrangement. His employment ceased at Christmas 2000. 120 Mr Terry claimed that Mr Hughes had told him that Huge Lights would pay for his airfare to the UK, as well as his expenses. While they were in the UK Mr Hughes said: "I will reimburse you for any further expenses you incur or money that you spend for the company while I am away when you get back." 121 Mr Terry denied that any of the equipment shipped to Australia belonged to him. On his evidence, he had shipped equipment to Australia in 1999. He claimed that all equipment he had purchased in the UK was for Huge Lights. He denied that he had provided his assistance to Mr Hughes as a friend. He claimed that 'this was a business relationship'. He claimed to have personally loaded two 40 foot high containers in the UK with a Land Rover, a six wheel drive cherry picker and a four wheel drive fork lift, plus spare parts and equipment, and that he personally loaded a third container with spares and equipment. 122 Mr Terry claimed to have been friends with Mr Hughes until he was locked out from the premises in January 2002. He denied various conversations deposed to by Mr and Mrs Hughes, or that Mr Hughes gave him any assistance with his TAFE homework. On 9 June 2004, Mr Terry swore a further affidavit, to which was annexed an unsigned note alleging fraud and perjury. Mr Maine and Mr Davies received similar correspondence via post. From subsequent evidence given by Mrs Hughes, it appears that this correspondence was sent by an acquaintance of Mr and Mrs Hughes. 123 On the affidavit evidence, it will be seen that while his amended summons claimed that Mr Terry had been employed by Huge Lights, Mr Terry's affidavit evidence was that from the outset, he and Mr Hughes had agreed to go into business together. It was not until his second affidavit that Mr Terry claimed to have been employed as Mr Hughes' apprentice. In his January 2001 TAFE application form, annexed to that affidavit, he claimed that he was an employee of Huge Lights. Mr Terry's evidence was however, that when he suggested to Mr Hughes that he was his apprentice, Mr Hughes immediately denied such a relationship, claiming they were partners. In their evidence, Mr and Mr Hughes, however denied any employment or other relationship between Mr Terry, Mr Hughes and Huge Lights. Their evidence was that a business venture had been discussed, but never agreed and there was no employment relationship. 124 In his case, Mr Terry was cross examined and he called evidence from Mr Maine and Mr Davies, who were also both cross examined. Very different accounts of the relationship between Mr Terry and the respondents emerged from this evidence, which departed quite significantly from the claims Mr Terry made in these proceedings. 125 In relation to the claimed apprenticeship for example, in cross examination, Mr Terry claimed to have become an employee of Mr Hughes, when he enrolled at TAFE. He explained, that from information provided to him by TAFE, he understood that he could not enrol as an apprentice electrician, without having a qualified electrician to work for. Mr Terry could not remember when he came to that understanding. He agreed, however, that in his application form he had nominated Huge Lights as his employer. Mr Terry explained that he had taken the address he used from a letterhead which Mr Hughes gave him. He denied that Mr Hughes had not been involved in his decision to enrol in the course, that he had not been his employee and that he had taken the letterhead and had not been given it by Mr Hughes. 126 Despite this evidence, not only was there no document which evidenced the existence of the claimed apprenticeship, as would be entered in the ordinary course, but Mr Terry abandoned his TAFE studies when he went to the UK in March. He never returned to TAFE upon his return in July. 127 Mr Terry was cross examined about his claim to have been employed by Mr Hughes or Huge Lights. He was asked whether he had ever told anyone, in Mr Hughes' presence, that he was Mr Hughes' indentured apprentice. His response was entirely evasive. He said, for example, 'I may have done, I couldn't tell you. I may have done, yes. I may or may not have done, I can't remember.' When pressed as to his understanding of what an indentured apprentice was, he explained that it was the same as being an apprentice, but confused the words 'indented' and 'indentured'. Mr Terry is dyslexic and on his evidence, consistently with the difficulties he encountered in the witness box, has significant difficulties with reading. That difficulty was corroborated by both Mr and Mrs Hughes. Even taking into account this difficulty, on his evidence it must be concluded that Mr Terry had no understanding of the operation of the apprenticeship system, or what becoming Mr Hughes' apprentice would have involved. Nor, on his evidence, did he ever perform such work. 128 In cross examination, Mr Terry also agreed that he may not have given his notice to Quell Northern until May 2001, not at Christmas 2000, as he had claimed in his third affidavit, but explained that there was nothing preventing 'us from setting things up and getting wheels in motion before that'. He claimed that he and Mr Hughes had first started discussing the idea of a trip to the UK, that Christmas. This contradicted the evidence in his first and second affidavits, but Mr Terry denied having altered his evidence, in order to improve his case. 129 So far as Mr Terry was concerned, even in his oral evidence in chief, his account of what had otherwise been agreed, altered considerably. As to the $650 wage for example, he claimed that Mr Hughes told him: Q. Now, the agreement is not something you can paraphrase to her Honour. Could you explain the conversation that occurred that formed this agreement? "He said", "I said", in direct speech? A. He said, " I want to purchase this equipment". I said, "I know where to get it from". He said we would work out a wage of $650 bucks. Once the equipment was out there and working, because I was going, because I was going to be putting a lot more effort and time into the business, because of his previous injuries he couldn't work the hours and --- ... Q. What did John directly say? A. John said that he would pay $650 so I had enough just to basically live on. That is what he agreed to. 130 This evidence was inconsistent with wages payable from March 2001, as the summons claimed, was agreed. The equipment was not delivered to the workshop until October and it was never 'out there and working', because Mr Terry never completed the work necessary to put the equipment into working order. On this version of his agreement with Mr Hughes, Mr Terry was not entitled to be paid $650 per week until that occurred, explaining, no doubt, why it was never a claim which he raised with Mr Hughes, or anyone else, until these proceedings were commenced. 131 When Mr Terry was cross examined as to what work he performed between his return to Australia on 9 July and when the workshop at North Ryde was obtained, he claimed on some days to have worked for 12 hours. He could not, however, explain what he was doing, other than 'arranging things pretty much'. He could not give any explanation of what he had done on any day, which had occupied the entire day, or what he meant when he said 'looking for bits of equipment'. Nor could he explain why he had not gone to TAFE. He also said he had never discussed his TAFE studies with Mr Hughes. While he agreed that he was not too busy to have returned to his studies, he then explained: I was probably waiting for the next block to start. I can't remember because I had been in the UK for so long and I had missed too much time, so that I could not go back. 132 It is unnecessary to detail the remainder of Mr Terry's evidence about the arrangements which he made with TAFE, about his trip to the UK. It was entirely implausible and unsupported by any other evidence. 133 Nevertheless, Mr Terry continued to deny that before the equipment was delivered to the North Ryde workshop, he was not working for Huge Lights and Mr Hughes. Mr Terry's evidence was that he and Mr Hughes worked to clean and repaint part of the premises when they were later acquired and that he began working on the equipment when it arrived at the workshop, some weeks later in October. His evidence was that despite all of this work and the promise of weekly wages, that he and Mr Hughes never discussed him being paid $650 a week, after his return from the UK. Nor did Mr Terry raise with Mr Hughes the idea that it was unfair that he was not being paid what he was promised. Nevertheless, Mr Terry's evidence was that he thought it was fair that he should have been paid the amount he claimed, because of 'the amount of time and effort I put in.' 134 As to what had been agreed about the establishment of a business, Mr Terry also gave conflicting evidence. At one point in his oral evidence in chief, he explained that Mr Hughes said that: 'The fair thing to do would be to have a 50/50 split on the profit of the equipment that is hired out.' Later in cross examination, Mr Terry explained: Jon obviously put a lot more money into it than I did, the idea being he wouldn't be able to work as many hours like I could. So, what would happen, once the equipment was up and working, we would work on percentages of what we both put in; and then, once the equipment was paid for, then it would be a supposedly a 50-50 split on the profit after that. 135 This evidence was inconsistent with Mr Terry's case, that he had not put any money into the business, rather, all he had spent had been on behalf of Huge Lights and Mr Hughes. 136 Much later, Mr Terry's evidence was that the arrangement was that 'eventually we would be partners, and I would get, you know, end up with equity in the company so it would be more of a partnership than before.' Next, his evidence was that they would set 'up a separate or a part of the company that was just specifically, to deal with the equipment we bought and the way we were going to work it because he was, if he sold his truck and would generate or so the only, the business revolved around equipment we bought in the UK and how we were going to work that.' While discussed, Mr Terry said no subsidiary was, however, ever set up. Mr Terry denied, nevertheless, that while many of these possibilities were discussed, nothing was finally agreed by he and Mr Hughes. 137 In further cross examination, Mr Terry initially agreed that he asked to become a signatory to the Huge Lights' cheque book, even though on his evidence ' I would not know how to write a cheque'. Then he said that he did not want that facility and that he did not think it a particularly good idea. He then denied pressing to be made a signatory in 2001, or that he sought to become a company director, although he agreed that he had raised it and that it was discussed. When asked why he had raised it, when he already had the arrangement which he claimed existed, Mr Terry explained 'Because nothing was happening. Nothing happened. That's why we had discussions about it.' Mr Terry also explained that he was looking for a company to be set up, or a subsidiary and whenever he raised it, he was just fobbed off by Mr Hughes. Mr Terry denied that the discussions of all of these concepts had never resulted in any arrangement at all. He claimed 'the deal was already done; just no results'. What the claimed 'deal' was, however, was less than clear. 138 So seen, the difficulty in reaching any conclusion as to what the nature of the arrangement which Mr Terry claimed had, in fact, come into existence, with Mr Hughes and Huge Lights, becomes readily apparent. There was but little evidence of an employment relationship. The evidence which pointed to the conclusion that some form of business arrangement had come into existence, was the UK trip, largely financed by Mr Hughes, when Mr Terry advised him on what equipment he should purchase; the work Mr Terry did in the UK after Mr Hughes' departure; the work Mr Terry and Mr Hughes performed on the North Ryde premises; the equipment both he and Mr Hughes brought into the country for use in the business they had agreed to go into together; the work then undertaken by Mr Terry, to make the equipment operational and Mr Hughes' attending to the ongoing financial needs of the business, paying rent, arranging for a security system, paying for Mr Terry's phone and purchasing spare parts. 139 Indeed, despite Mr Hughes' initial denials, there was finally common ground as to the performance of work by Mr Terry, with Mr Hughes accepting that at least while he was in the UK, Mr Terry was acting as his agent. 140 Mr Terry also claimed that Mr Hughes was quite unreliable, a view which he first formed while they were in the UK together, when he became aware that Mr Hughes was an alcoholic. Mr Terry described repeated difficulties created by Mr Hughes' binge drinking in the UK. On Mr Terry's evidence, these problems were so serious, that he reconsidered going into business with Mr Hughes, before he had spent any of his own money in the UK. He agreed, that to that point, Mr Hughes had paid his airfare and met his expenses while they travelled together. He denied that he was on holidays, claiming it was a business trip. Mr Terry claimed to have discussed Mr Hughes' drinking problem with him. Mr Hughes promised that he would not drink anymore, but he got drunk again anyway. Mr Terry explained that he did then not pull the plug on their dealings, because they had 'gone too far', even though at that stage, all he had invested was the time he had spent during the UK trip, which Mr Hughes had funded. Mr Terry explained that he wanted to help Mr Hughes because they were friends and that he felt loyal to him. That explanation is a convincing one of course, only if the true nature of the arrangement involved Mr Terry himself contributing financially to the venture, which he denied. 141 Mr Terry claimed that before Mr Hughes returned to Australia, they discussed Mr Terry's expenses, with Mr Hughes saying: You are going to have to stay here to finalise all the shipping arrangements, finalise the purchase of equipment. I am going. I will go back to Australia and arrange payment for the big-ticket items and I would like you to stay here and finalise the shipping and make sure things are packed up and ready to go". I said, "That's fine". I asked him about out-of-pocket expenses. He said, "Not a problem. Just keep all your receipts for fuel, motel, food and we will sort it out when we get back". I said, "That's fine" - and that's what I did. 142 The receipts for the expenses Mr Terry claimed in these proceedings were explained to relate to a period between 5 May and 9 July 2001. Mr Terry's evidence was that he claimed only business related expenses then incurred, not for personal travel or expenses. Despite this, the documents relied on included things such as cash withdrawals, cigarettes and numerous items which appear to have been purchased at supermarkets. In cross examination, he also agreed that he had not always been alone when occupying the hotel rooms for which accommodation was claimed. 143 On Mr Terry's evidence, he and Mr Hughes spent some 12 days in total together in the UK, visiting 20 - 30 Land Rover specialists and ex-military equipment companies, with which he was familiar. On his evidence he checked out the equipment Mr Hughes purchased mechanically, in order to ensure that it was the 'best available', describing the equipment as 'for what we paid for them, they were excellent', although agreeing that some was in 'bad condition'. A video of part of that trip taken while Mr Terry and Mr Hughes inspected ex-military equipment was in evidence. Given that evidence and the evidence of the work Mr Terry later performed on the equipment; how long that work took Mr Terry (on his evidence by he working 12 hour days) and the fact that none of the equipment was in a state which permitted this business to trade, the proper inference is that the equipment Mr Hughes acquired, on Mr Terry's recommendation, was, in fact, not in as good a condition as Mr Terry believed. It plainly took further time and resources than he had anticipated, to get the equipment operational. 144 Mr Terry also described the work he performed in the UK after Mr Hughes left. He claimed he arranged transport of equipment by telephone through a friend; arranged for some equipment Mr Hughes had acquired to be cleaned; sourced and purchased other equipment, and spent two days in June loading containers. Mr Hughes claimed transportation was part of the purchase price of the equipment, which Mr Terry denied. He also denied that Mr Hughes had left him with any documents relating to the equipment Mr Hughes had purchased, before he left to arrange for payment in Australia. Mr Terry claimed that Mr Hughes had no documents to leave with him, but agreed that certain invoices later came into his possession - two invoices for two Land Rover cherry pickers, for example. He explained that he retained those invoices and later produced them in these proceedings and had not given them to Mr Hughes beforehand, because 'it was just we hadn't sorted it out.' This evidence was later revisited, when Mr Terry was recalled to give further evidence in relation to the Withams' invoices. 145 As to his claimed out of pocket expenses, Mr Terry also agreed that he had never given the invoices to Mr Hughes after his return to Australia, although at one stage he claimed that Mr Hughes had asked him for them. Mr Terry claimed that after he left the UK, Mr Hughes told him on the phone 'when you get back give me any invoices' for personal expenses or for equipment and 'we will sort it out.' On Mr Terry's evidence, after he returned to Sydney, they had several discussions in which Mr Hughes asked for his invoices. Despite this, Mr Terry later explained that on his return, he never had a chance to sort this out with Mr Hughes, that they never sat down to sort the expenses out. The result was that he never gave Mr Hughes any invoices and they remained in his possession, until these proceedings were commenced. 146 That evidence was completely implausible. Not only did Mr Terry return to Australia on 9 July, on his evidence he spent a lot of time with Mr Hughes before the equipment arrived in Sydney in September. When the premises were acquired, he assisted Mr Hughes in cleaning and renovating, spending even more time with him and when the equipment arrived in October, he worked 'day and night' at the North Ryde premises, frequently seeing Mr Hughes there. Despite this, he never gave Mr Hughes any invoices for a sum claimed in the amended summons to have amounted to $40,212.36, even though he claimed that Mr Hughes had asked for them. Even when Mr Terry sought Mr Maine's assistance in October, he did not, however, mention his expenses, or that he was owed a substantial sum by Mr Hughes, which he was refusing to pay. 147 What the evidence also revealed, was that some of the documents Mr Terry relied on in the proceedings, were created after Mr Terry's return to Australia - indeed, after these proceedings were commenced. Annexure L to Mr Terry's September 2003 affidavit was a document on the letterhead of 'Stanton Transport', dated 29 June 2001, for 2,150 pounds, for the transport of two cherry pickers and other equipment. Mr Terry claimed to have paid this amount in cash, while in the UK. 148 In cross examination, Mr Terry agreed that he had since learned that 'Stanton Transport' did not exist. He explained that he had learned this from his former partner, Ms Lucy Holding, who came to live with him in Australia at the end of 2002. He could not remember when Ms Holding told him about Stanton Transport, saying 'I cannot remember the exact time, the exact place or in what circumstances that happened.' Mr Terry denied, however, having any role in fabricating the invoice, or that it had come into existence after the proceedings were commenced. He explained that he had asked Mr Graham Holding, from whom he had bought some equipment, for an invoice for the transport of the equipment. Mr Holding, Ms Holding's stepfather, later told him that he would ask Ms Holding to obtain one. Mr Terry claimed he received the invoice by mail after his return to Australia, having asked that it be sent to him, rather than to Huge Lights, to whom the document was addressed, because he had incurred the expense. Mr Terry claimed then to have kept the document with his other paperwork and never having given it to Mr Hughes. 149 That explanation was not a credible one, for various reasons, including that the document was not attached to Mr Terry's April 2002 affidavit. What was attached to that affidavit was a handwritten document prepared by Mr Terry, which, on the first page, noted that 'invoice coming from UK'. Mr Terry explained that he had prepared this document for his solicitor, but he could not remember when. On the second page, headed 'transport in UK' and 'paid cash', similar items to those noted on the Stanton Transport document appeared, but for a total of 2,130 pounds, not 2,150. Mr Terry could not explain what he meant by the note, 'invoice coming from the UK', saying 'I'm pretty sure I would have received the invoices by the time I wrote this.' 150 In later cross examination, Mr Terry explained that he had prepared the annexure to his first affidavit from 'the information I would have had to hand'. Then he looked for the Stanton Transport invoice in Exhibit 9, a folder in which he claimed he had kept all of his invoices, where he expected to find the document. It was not there. Next, his evidence was that he had prepared the annexure to the first affidavit from memory, explaining he then had no difficulty in remembering what he had purchased and paid. He then explained that did not know where the invoice was at the time he swore that affidavit, he could not find it. Earlier he had insisted that he had always had it. Next, he said that he had kept rough notes of what he had purchased, to which he'd referred at the time of creating the handwritten document, but he did not know where those notes were. Later he explained that he had thrown them away, even though he had commenced these proceedings. Then he said that while he received the invoices after he returned to Australia, 'I couldn't tell you exactly when.' Nevertheless, Mr Terry firmly denied that the Stanton Transport invoice had simply been fabricated. 151 In cross examination, Mr Terry insisted that he had paid cash for this transport while in the UK, using money from his 'Abbey National' account, which he maintained in the UK. There was no documentary evidence corroborating the existence of that account, or that cash had been removed from the account by his mother, as Mr Terry claimed, in order to meet this expense and others. Mr Terry's evidence was that he had not kept any of his account statements, nor had he obtained any receipts from the driver who he claimed had, in fact, transported this equipment for him as 'backloads' in various parts of the UK. It is unnecessary to detail all of the evidence Mr Terry gave about this implausible arrangement. Suffice it to observe that it was entirely inconsistent, contradictory and unbelievable. 152 I am satisfied on this evidence that Mr Terry did not meet the onus which fell upon him to establish that this was either an expense which he had incurred, or met. The Stanton Transport receipt relied on was fabricated, on his own evidence. There was no other evidence corroborating Mr Terry's claim. Given his evidence about this and other matters, I came to the conclusion that Mr Terry was not a reliable witness. Having carefully considered his evidence, I came to the conclusion that without corroboration, his evidence could not be accepted as truthfully given. 153 Mr Terry also explained his relationship with Mr Holding, who he had known for about 15 years and from whom he had bought various ex-military equipment in the past, as well as some of the equipment for which he claimed payment in these proceedings. Lucy Holding was his stepdaughter. She worked for Mr Holding as an accountant. On Mr Terry's evidence, Ms Holding prepared both the Stanton Transport invoice and that provided by Mr Holding, from information which Mr Terry had himself provided. Mr Terry explained that the information could not be provided by Mr Holding to Ms Holding, because 'he doesn't have business records'. Mr Terry agreed that this invoice was created after he acquired the goods. He recollected having paid about 3,000 pounds in cash, but he could not recollect precisely how much. He also claimed to have told Mr Hughes what he had bought and that Mr Hughes was happy with what he had done. He also said that the items bought were all loaded into the containers and unpacked at the North Ryde premises, where they remained. 154 Mr Terry also explained how he had selected what he had bought from Mr Holding, after Mr Hughes had given him no instructions as to what items to buy. His evidence was that 'John gave me the instructions to get anything that was necessary to get this thing up and running'. Mr Terry also claimed that they had not discussed any dollar figure, as to what might be spent. None of this was put to Mr Hughes in cross examination. 155 The GC Holding invoice was another invoice attached to Mr Terry's September 2003 affidavit. The handwritten document Mr Terry attached to his 2002 affidavit, had marked on it, as I have noted, 'invoice coming from UK'. The GC Holding invoice dated June 2001, was unsigned and also contained no UK VAT number. The proper inference from the evidence was that it, too, was created after these proceedings were commenced. There was also no evidence that Mr Terry in fact paid the amount claimed in this document, other than his own evidence. I am unable to accept Mr Terry's evidence about this equipment as a sufficient basis for a conclusion that he has met the onus falling on him to prove this aspect of his claim. 156 Mr Terry also described the assistance he sought from Mr Maine, to help resolve his business structure with Mr Hughes, accepting Mr Maine's suggestion that he sit down with he and Mr Hughes. Mr Terry initially explained that he did nothing to arrange such a meeting with Mr Hughes, he assumed that Mr Maine did something. Later he said he spoke to Mr Hughes by phone and in person, about having such a meeting. He explained that what he wanted was: To sort out what was going on with the business, because to sort out a lot of things. Jon was hardly there, he would come and go, and I was getting no support, or very little - practically no support from Jon in that period. And I just was trying to find out what was happening, just -- Q. In relation to what? A. In relation to the business. Q. The structure of the business? A. The structure of the business the operation of the business. Pretty much everything. He would blow in and blow out. Q. The point is you are saying because Jon wasn't there at the workshop, you wanted to have a discussion about what was happening with the business? A. With the business, yes. Q. And you involved Mr Maine? A. Correct. Q. And so when you rang Jon, he said, "Can we have a discussion about what's happening with the business?" A. Yes Q. Was that the pressing issue that you wanted to discuss at that point in time? A. That and my expenses and the whole way the thing was panning out I wasn't happy with the situation and I just wanted to get it sorted out. Q. You wanted to have a meeting to discuss the expenses? A. That's correct. Q. And where the business was going? A. Yes. Q. And what were you wondering about where the business was going? A. Just because he wasn't about most of the time. Q. If he had been about, what would he have been doing, in your expectation? A. Organising things. Q. What sort of things? A. Okay. We had quite a lot of equipment that needed sorting out, working on. There were a thousand and one different things that Jon could have been doing, and he wasn't. 157 Mr Terry claimed that at the meeting, he had all of his invoices with him, but did not show them to Mr Maine, or to Mr Hughes, because Mr Hughes could not stay, he had to be somewhere else. He denied that he was then concerned about what was happening with his apprenticeship and explained that in the 15 minute meeting, they discussed 'what was going on with the business ... a whole myriad of things and trying to just - trying to get things sorted out'. Mr Terry did not mention the invoices, or offer to show them to Mr Hughes or Mr Maine. Nor did he tell Mr Maine that he had been working for nine months without the payment of $650 per week wages that Mr Hughes had promised him. He explained: 'that wasn't my major concern at that time. My major concern at that time was to get my expenses back and get this business up and running and get it happening. That was my main goal and my main concern.' 158 Despite this aim, Mr Terry did not mention any expenses. On Mr Terry's evidence, Mr Maine said that he was trying to 'help sort out the situation'. He could not remember anything else said at the meeting, describing it repeatedly as 'just a general conversation', in which nothing was agreed. He did remember that Mr Maine advised him to 'just keep battling away and it will work itself out'. That was the end of Mr Maine's involvement, although Mr Terry discussed being locked out of the workshop with him in January 2002. Mr Terry's evidence was that he did not, even then tell Mr Maine that he was owed back wages by Mr Hughes. He did tell him that he intended to take legal proceedings, but not what kind. 159 Mr Terry explained that at the time of the discussion with Mr Maine, he still regarded himself to be an apprentice, even though he had never resumed his studies, after his return from the UK. He also explained, that he then again thought about walking away from the situation, but did not 'because I had invested too much time, effort and money into it just to walk away; and, he was a friend and I was trying to do the right thing by him.' That evidence was also inconsistent with Mr Terry's claim in these proceedings that the expenses he had incurred, were not incurred on his own account. 160 Mr Terry described the business at that stage as equipment purchased and brought 'back to Sydney to use within the film industry and that, and if we could hire it out for any other users - the equipment for any other uses - we would do.' He said that he and Mr Hughes had seen a gap in the market, which they intended to exploit. 161 On Mr Terry's evidence, the business never, however, reached that stage, because the equipment purchased required a lot of work, before it could be used, which Mr Terry was undertaking, but had not completed, before he was locked out. None of the vehicles were registered and none of them were in a condition where they could be registered, without further work. Much of the equipment was dismantled. He had hoped that this work would only take him six weeks to two months, but it took longer, because Mr Hughes provided him with no assistance. At the time of the lockout, he had stripped one Land Rover and one cherry picker. Mr Terry claimed that Mr Hughes did not do what was required on his part, such as obtaining necessary spare parts and attending to administrative paperwork. 162 From this evidence, it was apparent that the business which Mr Terry and Mr Hughes had in mind, never traded, because it was never put in a position to do so. On 18 January, Mr Terry was told to stop work. Mr Hughes was not prepared to put any further money into the venture. Plainly, a decision had been made to cut his losses. 163 Mr Terry explained that when he was locked out, he had a vehicle, tools and personal equipment in the premises. Mr Hughes did not return his calls. Arrangements were later made for him to collect his belongings from a Mr Mark Newman, but he was not allowed inside. He denied that he was given a proper opportunity to collect all of his things, but gave no evidence as to what he took and what he claimed belonged to him, which Mr Hughes had retained. Such evidence would, no doubt, have been difficult to give, given the claims advanced in these proceedings and the evidence called from Mr Maine, that it had taken several days to move Mr Terry's belongings. No evidence was called from Mr Newman. 164 Mr Terry explained that when he was excluded from the business, he had no plans. He denied colluding with Mr Maine, to put pressure on Mr Hughes, to give he and Mr Maine access to the equipment. He agreed that he already worked with Mr Maine on various film jobs and that they then had a good relationship. 165 Mr Maine's affidavit evidence was that he was acquainted with Mr Terry, Mr Hughes and Mrs Hughes. He had been friends with Mr Hughes since the early 1980s, but their friendship had broken down, after Mr Terry's eviction from Huge Lights' premises in 2002. Mr Maine had come to know Mr Terry through Mr Hughes. He, too, had business premises at North Ryde. On his evidence, in January 2001, Mr Terry told him: "Jon has asked me to go into business with him and he wants me to go to England with him and buy ex military gear, including generators, 4 wheel drives and lighting gear. Jon want's(sic) me to convert the gear here so we can use it in the film industry. I have contacts there so I can get it for the right price" ME "That's great mate, when are you leaving." MT "In March." JH "Yes, Martin's got contacts there through his ex army mates." 166 In February 2001, Mr Maine said he had a conversation with Mr Hughes and Mr Terry: MT "Jon's taken me on as an indentured electrical apprentice and I have enrolled at North Sydney TAFE as an apprentice. Jon said that was good for the business." JH "That's right." 167 In October 2001, they moved into the North Ryde premises, where Mr Maine observed Mr Terry working, 'practically every day and night' on the UK equipment and getting the vehicles serviceable. In October 2001, Mr Maine had a conversation with Mr Terry and Mr Hughes about their relationship: MT "Geoff, I am not happy with the financial arrangement between us and because you are not involved in our business, we would like your opinion how we should arrange the finances between us" JH "Yes mate what's your objective view how this might best work between us" ME "Jon, work out what you have put into the company and work out what Martin has put in to the company. Then make an allowance for Martin who has done all the work Once you work out the percentages, you can both draw out a percentage return. 168 Mr Terry did not tell Mr Maine what the financial arrangement was and why he was not happy with it. He did not mention being owed wages or having unpaid expenses. Mr Terry later told Mr Maine that he was not being paid and that he was desperate. Mr Maine gave Mr Terry some casual work. In December 2001, they had another conversation: MT "Jon is always drunk and promises to do things. He was going to set up a subsidiary to the company and nothing has been done. I am unhappy, I do all the work and the money was paid into the company. I have not been paid and I have no money to buy food. I have been working day and night repairing the vehicles and sleeping on the premises "I am desperate and I have no money". JH "I will sort things out when I get back from holidays. Martin can use my credit card to buy food. MT "I don't want charity, I just want what is mine, when are you going to pay me." JH "We will talk about this when I get back" MT "I have been working day and night and haven't gone home. I am desperate" JH "We will sort his out when I get back." 169 Mr and Mrs Hughes, went away on holidays. In January 2002, Mr Maine became aware, after their return, that Mr Terry had been locked out and he was told by Mrs Hughes: MH "I am in charge, nothing gets taken out without my permission, I am a company director. 170 Mr Hughes replied to this evidence in an affidavit sworn on 24 February 2004, in which he denied these conversations. He also denied that Mr Terry worked on any of the Huge Lights vehicles, or that he was involved in the Huge Lights business. On his evidence, Mr Terry was using the premises to work on his own affairs and vehicles, because of another act of generosity by he and Huge Lights. He conceded that Mr Terry 'gave me a hand with some of my vehicles from time to time, he was more or less tinkering with them.' Again, this was done as a favour for a mate. 171 Mr Hughes conceded that there were discussions between he, Mr Maine and Mr Terry about he and Mr Terry setting up a business together, but they got nowhere and no business was established. He agreed that Mr Terry often complained about his financial difficulties, but denied that they had anything to do with him. Mr Terry was having problems finding work, having given up his Quell Northern employment. Mr Hughes also claimed that 'Huge Lights only undertook one job during its trading existence'. 172 Mr Maine responded to this affidavit on 19 April 2004, adhering to his version of the disputed conversations. 173 Again, the evidence of both Mr Maine and Mr Hughes altered when they came to give oral evidence. 174 In cross examination, Mr Maine explained that his premises at North Ryde were opposite those of Huge Lights. He saw Mr Terry there every day he attended and Mr Hughes about once a week and often had coffee with them. He saw Mr Terry working on vehicles there and Mr Hughes observing that work being done. 175 He also claimed to have heard Mr Terry and Mr Hughes discussing Mr Terry being Mr Hughes' indentured apprentice, not long after he first met Mr Terry, at Mr Hughes' home at Curl Curl, before he moved out in 1998 or 1999. Later, in his evidence he described this conversation in a different way: 'they were talking about getting him an apprenticeship' and that there was an 'intention' to have such an apprenticeship. 176 Mr Maine saw Mr Terry working at Curl Curl on a few occasions on mechanical equipment and assumed that he was working for Mr Hughes as an employee, but he never enquired. Mr Maine described his understanding of such an apprenticeship as: It is a fully signed up guaranteed apprenticeship that electrical contractor offers a potential apprentice. It is actually a legal document, it's an indenture. 177 Despite this understanding, Mr Maine seems only to have ever observed Mr Terry undertaking mechanical work on various vehicles. He could also not recall Mr Terry ever having enrolled in a TAFE course and said he had never subsequently discussed his apprenticeship with Mr Terry. Mr Maine also understood that at the time he learnt of this apprenticeship, that Mr Terry was working full-time for a fire protection company, but said he had 'no knowledge of his specific working situation at that time.' 178 After their return from the UK, in October 2001, Mr Maine heard Mr Hughes say 'I think it's a good idea for Martin to become part of the company', to which Mr Terry agreed. Mr Maine was impressed with Mr Terry and himself offered him some casual work in the film industry, perceiving him to be adaptable and good at mechanical work. After a discussion with Mr Hughes, Huge Lights had invoiced for that work. 179 Mr Maine explained that he offered Mr Terry this work, because he understood he was not being paid by Mr Hughes. He assumed that under their arrangement Mr Terry was to be paid, but did not know what the understanding was. On his evidence, Mr Maine spoke to Mr Terry and Mr Hughes about their arrangement on two occasions. He did not understand there to be any dispute, just a discussion as to what his opinion was 'as to what the financial arrangements would be.' He said: "Okay, have a look at what you have put in the business, Martin. You look at what you have put into the business. Work out a percentage and take your return out on that basis on that percentage so the contribution from either side is equivalent to what comes out." 180 Mr Maine understood that Mr Terry had not been paid for his endeavours to that point. He understood that they had an arrangement, but did not ask what it was, or what had been agreed. His advice was that 'the fairest thing is work out what you put in and take out on that basis', it was a short conversation from his point of view. 181 Mr Maine agreed that he was aware that Mr Terry was not a director of Huge Lights and assumed that he was not a shareholder. 182 Mr Maine also explained that he terminated his friendship with Mr Hughes after the locks at the workshop were changed and he tried unsuccessfully to speak to Mr Hughes about what had happened. He thought the behaviour was unusual and wanted to help, as a friend. He denied that he was colluding with Mr Terry. He agreed that after the lockout he allowed Mr Terry to store his possessions at his workshop and he helped him to physically move his things from Huge Light's premises, although he understood not all of his belongings were removed. He also later gave Mr Terry other work, but not as an employee or subcontractor, rather he recommended him to production companies, who engaged him direct. 183 Mr Maine later arranged to have the alarm to the Huge Lights workshop cut off, even though it was meeting part of the cost of the alarm. Mr Maine did not advise the respondents of the actions he was taking. 184 Mr Davies swore an affidavit on 22 September 2003. He, too, had premises at North Ryde and became acquainted with Mr Terry through Mr Hughes. On his evidence, in October 2001, Mr Hughes said to him: "Martin and I are business partners. We are creating a business specialising in all terrain access for the film and TV industry. We have put in some money together." 185 Mr Davies saw Mr Terry working hard on equipment between October and January, dismantling it, rebuilding and servicing it. In cross examination, he said that Mr Terry had keys to the premises and access to keys to the vehicles, which he saw both Mr Hughes and Mr Terry move around. 186 In cross examination, Mr Davies explained that he had had up to twenty conversations with Mr Hughes, about the business being established. He could remember no details of what was said, although he remembered Mr Terry telling him that 'his investment was a smaller percentage than Jonathon's but nonetheless an investment. I didn't know the percentages, all I knew it was a percentage.' 187 Mr Davies insisted that Mr Terry had always said he had put money into the business. He never complained, however, that Mr Hughes had failed to reimburse him for money paid on Mr Hughes' behalf, for any equipment. 188 Mr Davies was with Mr Terry shortly after he had been locked out. Mr Terry had been with him, working on a job at Stockton Beach. He understood that the lockout was a shock to Mr Terry. Mr Terry did not tell him he had been asked to leave the workshop earlier. 189 Mr Davies explained that he had wanted to use one of the vehicles on which Mr Terry had been working on this job, but it had not been registered. When asked what he understood Mr Terry's role with Mr Hughes to have been, Mr Davies explained: Q. What did you understand Mr Terry's role was with Mr Hughes? A. He was the current owner of the equipment. Q. Did you understand that he was in business with Mr Hughes? A. Of course he was. Q. So, you believed that? A. Of course. All the photos and, you know, from overseas in England and all the co-owned gear and workshop, both work there every day working hard on the same piece of equipment that they owned together, yes, why would I think otherwise? 190 In the week preceding the Stockton Beach job, Mr Davies said he discussed using a cherry picker with Mr Hughes, to which he said that 'we will see what we can do.' Mr Terry told him that: I think he was saying that they were, a lot of the vehicles could be registered really quite quickly and all that was needed was a little bit of money for registration. 191 When the vehicle was not registered, Mr Davies organised some work for Mr Terry on the shoot. He explained that while he believed that Mr Terry was then a partner in Huge Lights, he did not offer that work to Huge Lights itself. His understanding of the partnership flowed from what Mr Terry had told him: Jon and I have bought these vehicles together, you know, I have put up money, Jon put up money and we have purchased these vehicles together. 192 On Mr Davies' evidence, Mr Terry later worked with him as a freelancer in his Flying Gecko business, although Mr Terry sent his own invoices for any work he performed. He understood these proceedings were concerned to ensure that Mr Terry got his percentage of the business back. He had no knowledge of any wages claim, although he understood that during their arrangement, Mr Hughes had been paying Mr Terry a small 'living wage', 'to cover rent and basics.' He could not recall Mr Terry complaining about not receiving that wage, however. He explained that he gave Mr Terry work, because he understood 'he was paying his way, but he just didn't have enough to do the, get the vehicles registered'. 193 Mr Davies also explained that he understood that was Mr Terry was seeking in these proceedings, was to recover his share of the business and the equipment, which he partly owned. 194 In his 5 March affidavit, Mr Hughes acknowledged having mentioned to Mr Davies that he and Mr Terry were having discussions about going into business together. He denied, however, having suggested a partnership existed, or that they had put money into the business together. 195 Mr Davies replied to this affidavit, adhering to his version of their discussion. Mr Hughes' oral evidence again threw quite a different light on what had occurred. 196 In cross examination, Mr Hughes agreed with various matters which had been extensively pressed with Mr Terry in cross examination, including that he had long had a drinking problem and that his denials about that in his affidavit evidence, were incorrect. On his own evidence, Mr Hughes has no difficulty in undertaking normal activities and works as a licensed electrician, despite the injury he suffered some years ago, in which he suffered some brain damage. He also agreed that he had worked in the film industry and that Huge Lights had traded during 2001. 197 Mr Hughes also agreed that in his personal financial circumstances, hypothetically he could have employed someone on $650 per week, but denied that he had ever employed Mr Terry, or agreed to pay him such a sum. Mr Hughes was not, however, cross examined as to employing Mr Terry as his apprentice. 198 Mr Hughes explained that while he had paid for Mr Terry's airfare to the UK, he had expected to be reimbursed. Initially, he insisted that the main purpose of the trip was to visit his father, not to look for equipment or to go into the equipment hire business. Mr Hughes explained that nevertheless, about half of the expenses incurred on the trip were claimed as business expenses. He also explained how he travelled around the UK with Mr Terry and purchased some $120,000 worth of equipment, leaving Mr Terry with 1,000 pounds to purchase some generators. After he returned to Australia, Mr Terry assisted him in the UK with 'quarantine, checking work on the containers and making sure they were properly packed' for two days at Withams. Mr Hughes agreed that the work was done for him and that 'he was acting as my agent' and that Mr Terry's signature appeared on various of the documents in evidence. Mr Hughes later accepted that the description of this work in his affidavit as Mr Terry providing only 'nominal assistance' was incorrect. 199 Mr Hughes, nevertheless, denied that he agreed to pay Mr Terry $650 a week for this work. On his evidence, a reward had been agreed, namely, 'I shipped all his bits and pieces.' Mr Hughes also denied that Mr Terry had ever claimed any expenses, until these proceedings had been commenced, or that such expenses had ever been raised earlier with him by Mr Terry. He also denied that equipment claimed to have been purchased by Mr Terry, had been purchased for Huge Lights, or for him. In later cross examination, however, Mr Hughes accepted that Mr Terry may have incurred expenses in the UK while working as his agent, for example, accommodation while he was loading the containers, but explained that he would have expected such expenses to have been claimed on Mr Terry's return to Australia and that he thought the expenses claimed in these proceedings were a 'bit over the top, some of them'. 200 That description must be accepted, given Mr Terry's own evidence and what was included in the expense claim. 201 After his cross examination, Mr Hughes swore another affidavit on 9 March 2007, in which he dealt with certain invoices for equipment he had purchased from Withams in the UK. He claimed that Mr Terry had taken the originals of those invoices and had not returned them, despite being repeatedly asked to do. He also claimed that some of those invoices had been altered by Mr Terry, using Mr Maine's computer. The altered invoices had been provided to customs, in order to reduce the customs duty payable on the equipment imported from the UK. Those customs documents were already in evidence; having been tendered in Mr Terry's case and Mr Hughes having been cross examined on them. His evidence had been that Mr Terry and Mr Maine had falsified these invoices using Mr Maine's computer. 202 Mr Hughes claimed that he had later become anxious about what he had done. Mr Terry also threatened to 'dob him in'. In December 2001, he asked Withams to fax his bookkeeper, Kathy Flood, at Blood from a Stone, copies of the original invoices, Ms Flood had since died. He also obtained confirmation that he had paid Withams 32,750 pounds by electronic transfer from his Westpac account. 203 Annexed to Mr Hughes' 2007 affidavit was invoice No 09111 dated 24 April 2001, faxed by Withams on 18 December 2001, reflecting a total sum of 33,500 pounds for identified equipment, with a deposit of 2,000 pounds noted as 'paid'. Attached to the customs documents was a different version of that invoice, dated 18 June and reflected a sum of 24,000 pounds. 204 There were also other versions of Withams' invoice No 09111 in evidence, for example, one sent by Mr Hughes to a Mr Carter in May 2001, for a sum of 43,000 pounds and different items listed to those appearing on that provided by Withams. 205 Also annexed to Mr Hughes' 2007 affidavit was invoice No 09112 dated 25 June 2001. It was for a sum of 16,500 pounds. This, too, was claimed to have been created by Mr Terry. No original of that invoice provided by Withams, was annexed to Mr Hughes' affidavit. 206 There were also two versions of a third Withams' invoice No 03570 annexed to Mr Hughes' 2007 affidavit. It was made out on letterhead, but was handwritten, addressed to Huge Lights, dated 19 June 2001 and for a sum of 1250 pounds. The first version of this invoice had been annexed to Mr Terry's April 2002 affidavit and he had tendered the original. Mr Terry claimed he had paid this sum and sought its reimbursement. The word 'paid' was written on the original invoice and it had the word 'credit' crossed out, in the credit/cash notation. This document, Mr Terry claimed, showed that he had paid cash for the items specified. 207 The second version of invoice No 03570 had also been faxed by Withams on 18 December 2001. It differed from the version annexed to Mr Terry's affidavit in two ways. The first, it also had a handwritten notation on it, saying 'see inv 9111 24/4/01 for shipping docs'. The second, it did not have the word 'credit' struck out, in the credit/cash notation. Mr Hughes claimed that he had paid Withams for this account, not Mr Terry. 208 A Natwest payment advice dated 4 June 2001, also provided by Withams on 18 December was annexed to Mr Hughes' 2007 affidavit. It showed a payment of 32,744 pounds sterling and charges of 6 pounds, received from Westpac on Mr Hughes' order, a total of 32,750 pounds. Mr Hughes claimed that this represented the total outstanding of invoice No 09111, of 31,500 and invoice No 03570 of 1,250 pounds, that is 32,750 pounds. 209 Mr Hughes was cross examined about these matters. I accept, that evidence was entirely confusing. The dates in his affidavit, he agreed, were plainly incorrect in certain respects. He accepted that they must have been wrong. The dates that he corrected them to, however, still made no sense, given the dates of the documents annexed to his affidavit. What was further confusing however, was that Mr Hughes was taken to documents produced by the respondents in answer to a summons. Access had been granted to the applicant, to photocopy these documents. What purported to be a photocopy of what the respondents had produced, was shown to Mr Hughes. The photocopy differed from what the respondents had produced. How that came to be was not clear initially, but as the evidence later came to be clarified, it appeared that the photocopy included documents which had been in Mr Terry's possession. Mr Terry was recalled to deal with this evidence. 210 What did make sense, at least from an arithmetical point of view, was the payment of 32,750 pounds to Withams, in payment of the two invoices Withams provided by fax to Ms Flood, invoice Nos 09111 and 03570. There was no suggestion that Mr Hughes had not made that payment by electronic transfer. Withams had provided Ms Flood with evidence of its receipt of that payment. There was no suggestion that the documents had not come from Withams in December 2001. 211 When Mr Terry was recalled, how invoice No 03570, the original of which he had in his possession and had annexed to his 2002 affidavit, came to be different to that supplied by Withams, was explored. He had no explanation, insisting that the document he relied on, evidenced his payment of 1,250 pounds in cash to Withams, while he was in the UK in 2001. 212 Mr Terry relied on the word 'paid' written on the original invoice. He explained that he did not understand the difference between an invoice and a receipt. He could not explain why the amounts on invoice Nos 09111 and 03570 supplied by Withams, added up to the amount Mr Hughes had paid Withams. He also denied that he had failed to give invoice No 03570 to Mr Hughes before these proceedings, because he knew Mr Hughes had already paid that amount. 213 Mr Terry was also cross examined as to how he came to have other Withams' documents in his possession. He claimed that he had inadvertently taken the other Withams' invoices from the North Ryde workshop in November 2001, because they were 'blowing around'. He denied having taken them deliberately, in order to later use them against Mr Hughes. His evidence was that he had given everything to his solicitor, after the lockout. He claimed to have forgotten that he had copies of invoices Nos 09111 and 09112. Those documents remained in the file of his original solicitor and he had gained access to them, only when that file was produced during these proceedings. Mr Terry also denied that he had earlier threatened Mr Hughes, that he would use those documents against him. He also claimed that he had no idea that there was any problem with customs. Despite this, he agreed that it was on his instructions that his solicitors had subpoenaed documents from the Federal Department of Transport in October 2006, about which Mr Hughes had then been cross examined. Mr Terry agreed however, that at the time, he had been of the opinion that Mr Hughes had falsified documents and that the cross examination about these matters had put Mr Hughes in a very embarrassing situation. 214 Mr Terry said that he had nothing to do with any falsification of any of the invoices. On his evidence, the customs documents had come from the UK, from the shipping agent and had been sent straight to customs. There was nothing to do in relation to the customs paperwork. He suspected that it was the shipping agent who may have falsified the documents, but he claimed that he did not have that suspicion, until after these proceedings were commenced. 215 Mr Terry also denied that he had used his knowledge of these matters to threaten Mr Hughes in relation to the Withams' invoices, knowing that Mr Hughes could not resist his claim in relation to invoice No 03570, for 1,250 pounds, without revealing what had been done in relation to the other Withams' invoices. 216 This development in the proceedings gave rise to a further difficulty, not easy to resolve on the evidence. To that point, it was obvious that both Mr Terry and Mr Hughes had been less than truthful about aspects of their evidence. Who was to be believed as to payment of invoice No 03570, which they each claimed to have paid? 217 Given the time at which these various documents came into evidence and how, I am unable to accept that Mr Terry had no knowledge of what had been done with the Withams' invoices in 2001, so far as customs was concerned. It was on Mr Terry's instructions that the documents were subpoenaed in these proceedings and Mr Hughes was cross examined on them, resulting in Mr Hughes' revealing in re-examination, the fabrication of invoices, in his 2007 affidavit. At the time the events occurred in 2001, Mr Hughes and Mr Terry were in business together. It was then in their joint interest to minimise any tax liabilities. On his own evidence, Mr Terry claimed he had already taken steps to do just that in the UK in relation to transport costs. There can be, no doubt, on Mr Terry's own evidence that the Stanton Transport invoice had been fabricated. On Mr Terry's own evidence, he had also been involved with Mr Hughes, in attending to the steps necessary to be taken to have the equipment released to Huge Lights in Australia. Money was of particular concern to Mr Terry at the time. 218 Mr Terry's claim to have paid 1,250 pounds cash to Withams rested on the original version of invoice No 03570. That document is inconsistent with the invoice Withams provided in December 2001, and with the evidence of the payment made to Withams by Mr Hughes. 219 Plainly enough, the words 'see invoice 9111 24/4/01 for shipping docs', which appear on the invoice Withams provided Ms Flood, could have been written on the copy of the invoice which Withams had kept, after giving Mr Terry the original. That cannot, however, explain how the word 'credit' came to be crossed out on Mr Terry's invoice, but not on that which Withams retained. Earlier payment, on 4 June, of the amount of the invoice by Mr Hughes, by electronic transfer, is however, consistent with that word not having been crossed out by Withams and the word 'paid' being written on the invoice. Crossing out of the word 'credit' on the original invoice given to Mr Terry, could plainly have occurred after it was in his hands. 220 On all of this evidence, I am unable to come to the conclusion that Mr Terry's claim that it was he who paid Withams, was established. 221 Mr Hughes had earlier agreed that after his return from the UK, the premises at North Ryde were acquired and that he had worked with Mr Terry in cleaning and renovating them. He agreed that at that time, he was considering Mr Terry's suitability as a business partner, but came to have doubts about him. He agreed that he gave Mr Terry keys to the premises, a mobile phone and that Mr Terry worked on the equipment he had purchased, when it arrived from the UK. Mr Hughes also agreed that his wife was annoyed over what he had acquired in the UK, when she saw how much he had spent. 222 Mr Hughes agreed that after the lockout, he had disposed of equipment he had acquired in the UK in something of a 'fire sale'. He explained that Mr Terry had dismantled that equipment and had removed items. He also explained that he had funds acquired from the earlier sale of his lighting truck, which was being paid off at $4,000 a month and that he had lived on that income, before he had started working again in early 2005. It was on that basis that he agreed he could have paid Mr Terry $650 a week. 223 Mrs Hughes' evidence in cross examination was that before they travelled to the UK together, Mr Terry and Mr Hughes had discussed going into business together and that a purpose of their trip was to purchase vehicles. In the UK, her husband spent $150,000 on equipment and shipping costs, intending to use them in the film industry and elsewhere. This was all the money he had received from a prior marriage settlement. Mrs Hughes agreed that in 2001, she was concerned about her husband entering into a business with Mr Terry and annoyed at the money he had spent. Mrs Hughes denied however, that Mr Hughes and Mr Terry had ever entered into a contract with each other, or that she had brought the business venture to an end. Her diary noted that she and Mr Hughes had spoken to Mr Terry about stopping work on 18 January 2002. She agreed that on 20 January, she had been involved in changing the locks at the workshop and had written and then placed a notice on the door. Mr Terry's phone was also stopped. She denied having tried to mislead the Court by suggesting that Huge Lights had not traded since 1999, when it had made income of some $12,000 in two months in 2001, explaining that she had been mistaken and had not then had a power of attorney, or any involvement in the business. 224 Mr and Mrs Hughes had married in 2001. On her evidence, she worked in the home care industry and had little to do with her husband's business, until 2002, when she was given power of attorney over his personal affairs, after he attempted suicide and was hospitalised. As a result, she also attended to certain of the affairs of Huge Lights, but was not a signatory on its cheque accounts. She was only a signatory on Mr Hughes' personal account. Nor was she a director of the company, although through a misunderstanding of what the power of attorney meant, she agreed that she had so described herself on occasions. 225 Mrs Hughes explained that some of the equipment purchased in the UK had been retained and some had been sold in August 2002, when Mr Hughes was approached about the sale of some of the equipment. The North Ryde premises were vacated in May 2002, because they could not afford to pay the rent and some of the equipment was moved to the country, where it was stored for a nominal rent. Mrs Hughes did not know the aquisition price of the various equipment, or what it had been sold for. The money was paid to Mr Hughes personally, not to Huge Lights. She also explained that she ceased using the power of attorney when Mr Hughes was again capable of taking charge of his affairs, in early 2005. The claimed employment relationship 226 Having carefully considered all of this evidence, I turn then to the various claims advanced. 227 The first was the employment claim. I have come to the conclusion that Mr Terry never became an apprentice, or an employee of Huge Lights, or of Mr Hughes. Nor was he ever promised wages of $650 per week, from March 2001, as he claimed in his summons. Even on his own evidence, Mr Terry was never made such a promise and until these proceedings were commenced, that was not a claim he raised with Mr Hughes, or with anyone else. 228 Mr Terry's case was supported by the evidence called from Mr Maine and Mr Davies. Both had worked for years in the film industry and had come to know Mr Terry through his association with Mr Hughes, who they had both known for years. They both saw Mr Terry regularly from October 2001 to January 2002, at Huge Lights' workshop, working on the equipment imported from the UK. Mr Maine also had a workshop there and Mr Davies had an association with another person who had a workshop there, where he kept various of his equipment. On Mr Davies' evidence, he and Mr Terry have had a close working relationship since January 2002. 229 Both Mr Maine and Mr Davies gave evidence as to their frequent discussions with Mr Hughes and Mr Terry during October 2001 to January 2002. Mr Maine's evidence also went to an earlier period and Mr Davies to a later period. They each claimed to have been involved in ongoing discussions with Mr Hughes and Mr Terry about the business they were working in together. Despite this, they had entirely differing understandings of the nature of the arrangement which Mr Hughes and Mr Terry had made with each other, to those Mr Terry and Mr Hughes claimed in these proceedings. On their evidence, they each came to their understanding on the basis of what they had been told by Mr Terry and Mr Hughes and what they had observed. The evidence made it clear that while they observed similar things, what Mr Terry had told them was quite different to his claims in these proceedings. 230 Mr Maine understood that Mr Terry was earlier employed as Mr Hughes' electrical apprentice and that they went into business together in 2001, to bring out the equipment they had acquired from the UK. Mr Davies understood that Mr Terry and Mr Hughes were partners in a business which hired out equipment and services to the film industry. Those understandings both differed from the case advanced by Mr Terry, even in closing submissions. 231 Mr Terry's original evidence and the claim he first advanced in these proceedings, was that he was an employee of Huge Lights, having been offered both a job and the opportunity to go into business with Mr Hughes in March 2001. Later, he claimed that in February he became Mr Hughes' apprentice and that while a business had been discussed, it had never been formalised. To advance his case in that way was of advantage to Mr Terry in these proceedings, because the claims which he pursued would plainly have been more difficult to sustain, had he in truth, been Mr Hughes' business partner, rather than his employee, or that of Huge Lights. It was in closing submissions that it was claimed that there was a different type of arrangement altogether in existence. 232 The evidence as to when the alleged relationship between the parties actually commenced, was also unclear on Mr Terry's case. Before Mr Terry and Mr Hughes travelled to the UK in March 2001, he had been employed by Quell Northern. Mr Terry gave conflicting evidence as to when that employment ceased and when his alleged employment with Huge Lights commenced in 2001. 233 Mr Maine's evidence was that Mr Terry had told him even earlier, in 1999, while they were together at Mr Hughes' house at Curl Curl, that he had become Mr Hughes' apprentice. Mr Hughes denied ever entering such a relationship with Mr Terry. No document evidencing any apprenticeship was ever created. 234 Mr Maine had himself begun his career as an electrical apprentice, having become a qualified electrical tradesman, and on his evidence, was well aware of the legal formalities which such a relationship involved. Mr Maine took Mr Terry at his word. While they had met only a few times to that point, Mr Maine had been impressed with Mr Terry and his mechanical aptitude. While Mr Terry claimed to be a qualified plumber, Mr Terry's evidence in cross examination showed, however, that he had no understanding at all as to the nature of an apprenticeship, nor what an 'indentured' apprentice was. 235 On the evidence, it must be concluded that Mr Terry had no foundation for telling Mr Maine that he was Mr Hughes' apprentice in 1999, or subsequently. I accept that this is what Mr Terry told Mr Maine, who could have been mistaken in his recollection of the time that this information was provided to him. Mr Terry's evidence was that the apprenticeship commenced later, when he enrolled at TAFE in 2001. I am also satisfied, however, that even though in his TAFE application form, Mr Terry had claimed that he was an apprentice employed by Huge Lights, the evidence did not establish that in 2001, or at any earlier time, Mr Terry became Mr Hughes' apprentice or an employee of Huge Lights. Mr Terry did not understand what such a relationship would have involved. 236 On Mr Terry's own evidence, Mr Hughes denied that he had employed him as an apprentice, when Mr Terry raised it with him in 2001, claiming that they were partners instead. Mr Terry even denied the only evidence given by Mr and Mrs Hughes, which might have supported a finding that such a relationship had existed, namely that Mr Hughes had helped him with his TAFE homework. 237 On this point, I prefer Mr Hughes' evidence to that of Mr Terry. Mr Hughes' evidence about these matters was not really challenged. 238 That conclusion was supported by Mr Terry's conduct. It was common ground that Mr Terry travelled to the UK with Mr Hughes on 28 March 2001. He returned to Sydney in July, but never resumed his TAFE studies. He claimed that he was then too busy working for Huge Lights to do so and that Mr Hughes was aware that he was not attending TAFE, but he could not recollect them ever discussing the matter. This evidence was entirely implausible. What Mr Terry was busy working on, after his return to Sydney in early July, and before the work he performed at the premises acquired by the Company in October commenced, was quite unclear, but it was certainly not the work of an apprentice electrician, or even that of an employee. There was no evidence that Mr Terry ever performed any electrical work, or was treated as, or acted as if he were Mr Hughes' apprentice. While Mr Terry maintained in cross examination that he was too busy to attend TAFE, he was at a loss to explain what was occupying his time. 239 The equipment did not arrive in Sydney from the UK until September. It was delivered to the Ryde premises later. In his third affidavit, Mr Terry's evidence was that he and Mr Hughes had been discussing and making plans for their business in discussions held during the day, at night and on weekends. This could not account for Mr Terry being too busy to return to TAFE between July and September. On the evidence it must be concluded that Mr Terry simply abandoned his TAFE studies on his departure from Australia. That was entirely consistent with the fact that he was never employed as an electrical apprentice by Mr Hughes or by Huge Lights. He had no obligations to them as an apprentice. It was a matter they never discussed again, even on Mr Terry's case. 240 I am unable to accept on the evidence, that there ever was an employment relationship of any kind between Mr Terry and Mr Hughes, or with Huge Lights. Did another relationship exist? 241 Mr Terry never claimed that he was involved in any business relationship with Mrs Hughes. It was common ground, however, that Mr Hughes and Mr Terry had discussed the possibility of their going into business together, before they travelled to the UK. It was apparent that the form of their arrangement, while much discussed, was never resolved. They discussed for example, a partnership; Mr Terry taking on a directorship in a new subsidiary of Huge Lights, which was to be established; or he being involved in Huge Lights in some way. No subsidiary was ever incorporated and Mr Terry never took on any directorship or shareholding in Huge Lights. Nor was it Mr Terry's case that any partnership was, in fact, ever entered between he and Mr Hughes, despite his own evidence that Mr Hughes had claimed to be his partner, and the evidence led from Mr Davies, who also understood they were partners. 242 Until final submissions, the case rested on the claim that Mr Terry was employed by Huge Lights from March 2001 in one of two capacities. As I have found, that claim was not made out. It was inconsistent with the evidence Mr Terry led in his own case. 243 In his affidavit evidence, Mr Hughes denied having employed Mr Terry, or having any kind of business arrangement with him. In cross examination, Mr Hughes accepted, however, that Mr Terry had acted as his agent in relation to the equipment Mr Hughes had purchased in the UK. Mr Hughes' evidence was that in return for that work, he permitted Mr Terry to transport his own equipment in the container used to transport the equipment which Mr Hughes had purchased. He had also paid for Mr Terry's airfare and had met other expenses. 244 There was no question that after his return to Australia, Mr Terry did other work, such as assisting Mr Hughes in dealing with the arrival of the equipment in Australia and at the North Ryde workshop, including cleaning and renovating work. After the equipment arrived, he was provided with a key to the premises and a mobile phone. He was also the security company's contact at Huge Lights. Mr Terry worked to modify and repair the equipment Mr Hughes had purchased overseas. There was no question that Mr Hughes intended to lease out that equipment to the film and other industries and that Mr Terry was working with him to that end. 245 Mr Terry and Mr Hughes told Mr Maine and Mr Davies that they were in business together. Mr Terry told them that he had made a financial contribution to the business. While that claim was inconsistent with Mr Terry's case in these proceedings, it was not inconsistent with his oral evidence. The evidence showed that despite Mr Terry and Mr Hughes' failure to reach an agreement on the form that their venture would take, their business had come into existence and efforts were being made by each of them, to put the business into a position where it could trade. 246 During the cross examination of Mr Terry and the witnesses he called, the claims advanced by Mr Terry in these proceedings were portrayed as forming part of a cynical attempt to exploit the respondents, in circumstances where it was well known, that Mr Hughes had some time ago suffered a serious injury, while working on location in the film industry, which had resulted in brain damage, the effects of which were obvious and well known to Mr Terry. It was the respondents' case that Mr Terry was assisted in that endeavour by Mr Maine and Mr Davies. This latter claim was not established. To the contrary, I accept their account of an understanding that Mr Terry and Mr Hughes had gone into business together and that they had each contributed equipment and their labour to that business. Mr Maine and Mr Davies each had this understanding from what they observed and what they were told by Mr Terry and Mr Hughes. Mr Davies was anxious for the equipment to become operational. He was in a position to direct work their way. The business, however, never commenced to trade, before it was brought to an end. 247 On the evidence, the conclusion that Mr Hughes and Mr Terry were in business together was unavoidable. That conclusion is different to the case which the parties respectively advanced. While an uncommon outcome, that is not a surprising outcome of this evidentiary contest. Regrettably, neither Mr Terry nor Mr Hughes were entirely truthful in the evidence which they gave in these proceedings, as to what they had done together. 248 While the business had been established, its final form had not. Mr Terry and Mr Hughes discussed various possible structures. They also discussed how any earnings would be shared. Mr Maine's advice was sought about that question. Nothing was ever resolved. The business, in fact, never traded and so there were never any earnings to share. 249 While both Mr Maine and Mr Davies each spoke to Mr Terry about the termination of the agreement after it had occurred, neither was aware of the claims he advanced in these proceedings, namely that he had not contributed financially to the business at all and that all that he claimed to have spent in the UK, had to be repaid by the respondents, because all those expenses had been incurred for Huge Lights and Mr Hughes. Those claims were entirely at odds with the reality of the arrangement which Mr Terry had made with Mr Hughes. 250 In truth, both Mr Terry and Mr Hughes had contributed equipment and labour as well as making financial contributions. In these proceedings, Mr Terry claimed that he had made no such contribution and that all he had undertaken and all he had spent had been on behalf of Mr Hughes and Huge Lights. That claim was not made out. Was the parties' contract or arrangement unfair as claimed? 251 It was common ground that in March 2001, Mr Hughes and Mr Terry agreed to travel to the UK together to look for ex-military equipment for Mr Hughes to buy; that Mr Hughes paid for the airfare and various other expenses incurred, such as accommodation costs while he was in the UK travelling with Mr Terry, car hire and fuel; that while in the UK, prior to Mr Hughes' return to Australia in April, Mr Terry and Mr Hughes did travel together looking at various ex-military equipment; that Mr Terry advised Mr Hughes as to which equipment he should purchase; that Mr Hughes purchased that equipment; that Mr Terry and Mr Hughes each also visited their own families during some of this period; that Mr Hughes arranged for the equipment he had purchased, to be transported to Australia, utilising the services of a shipping agent known to him, Mr Carter; that on his return to Australia, Mr Hughes arranged for the payment of the equipment he had purchased; that Mr Terry remained in the UK and did various work there, including loading the containers Mr Hughes had paid for, with the equipment he had purchased; and that Mr Terry also arranged for other equipment to be transported in those containers. 252 Mr Terry claimed in these proceedings that he was entitled to the payment of wages of $650 per week from March 2001, including while he was in the UK; reimbursement of accommodation and other personal expenses he incurred while he remained in the UK; as well as the reimbursement of the cost of the equipment he claimed he had purchased in the UK for Huge Lights. On the evidence it must be concluded that Mr Terry had no entitlement to such payments under this arrangement. While he claimed that Mr Hughes agreed to such entitlements, I have concluded that in truth, as he told Mr Maine and Mr Davies, Mr Terry had himself invested in this business and, as was his own evidence, he and Mr Hughes proposed to pay themselves $650 a week each, once the business started producing income. 253 Initially, it was the respondents' case that Mr Terry never had the authority to purchase equipment on their behalf and that he was not owed anything for the accommodation and other expenses he incurred in the UK. In cross examination however, Mr Hughes agreed that Mr Terry was his agent in the UK and that if he had sought reimbursement of some of his expenses on his return to Australia, Mr Hughes would have considered reimbursing them. 254 I have concluded that Mr Terry was more than Mr Hughes' agent in the UK. They were then in business together. I accept, however, Mr Hughes' evidence that had Mr Terry raised expenses such as his accommodation expenses while loading the containers in the UK, upon his return to Australia, Mr Hughes may have agreed to meet them. Mr Hughes had certainly met other of Mr Terry's expenses in the UK while they travelled together. He also met other ongoing costs of the business, such as the cost of the North Ryde premises, the security service, spare parts and Mr Terry's mobile phone costs, after his return to Australia. There was no evidence that Mr Hughes had agreed to meet the expenses claimed and as I earlier accepted, what was claimed was quite 'over the top', as Mr Hughes described it, on any view. There simply was no basis in the evidence upon which it could be concluded that Mr Terry should be reimbursed for purchases in supermarkets, such cigarettes, for example, as was finally accepted in submissions. 255 Mr Terry's conduct was consistent with the conclusion I have reached, namely that he had no right under the agreement he had reached with Mr Hughes, to have Mr Hughes or Huge Lights reimburse his expenses. In reality, it was not until these proceedings were commenced, that he sought reimbursement of the expenses he claimed to be entitled to be reimbursed, as an employee. The claim was not one which he had ever revealed to Mr Maine or Mr Davies and was inconsistent with their understanding of the relationship between Mr Hughes and Mr Terry. 256 The reality, was that Mr Hughes and Mr Terry had each incurred expenses in the UK while attending to the needs of their business, in Mr Terry's case while he remained in the UK, after Mr Hughes returned to Australia. I can see nothing unfair in the contribution which they each made to their business in that respect. The bulk of the expenses were met by Mr Hughes. I cannot see, in fairness, how it can be concluded that his contribution ought to have been any greater than it was. 257 Both Mr Terry and Mr Hughes also contributed equipment to be used in their business they each worked in the business. On Mr Terry's evidence, overall, Mr Hughes made the greater financial contribution. Given his background, Mr Terry was more involved in the selection of the equipment to be purchased and the work required to be done on the equipment he had selected, in order to make it useable for the purpose he and Mr Hughes intended. I can find nothing unfair in the arrangement, so understood. 258 The arrangement was brought to an end by Mr Hughes in January 2002, before the business commenced to trade. The evidence as to how that came about was finally relatively clear. Mr Terry was anxious and frustrated at the lack of progress being made in finalising the formal terms of the arrangement. The work needed to be done on the equipment he had selected, to make it useable in the gap in the market which he and Mr Hughes had identified, was also taking much longer than Mr Terry had anticipated. The business could not trade until the equipment was operational and so it was not generating any revenue. Mr Terry was not earning anything from the business as a result. Nor was Mr Hughes. He and Mr Hughes had agreed to take $650 per week each, when the business was earning income. It was Mr Terry who was short of funds as a result. 259 In January 2002, Mr Terry arranged with Mr Davies to perform some work in the film industry at a job at Stockton Beach. Unlike the work Mr Terry had earlier undertaken in the film industry with Mr Hughes and Mr Maine, Huge Lights and Mr Hughes were not involved in this job. Mr Terry was paid direct. Unlike Mr Hughes, he needed this income. Mr Hughes had another source of income, from the sale of his lighting truck, which was still being paid off. Mr Terry told Mr Maine and Mr Hughes that he was getting desperate. Mr Hughes agreed to discuss his situation with him, when he and Mrs Hughes returned from a holiday. 260 By that time, however, Mr Hughes had already begun to have serious doubts about Mr Terry's suitability as a business partner. The evidence showed that more funds were needed to be injected into the business. Mr Terry was complaining that Mr Hughes was not buying necessary spare parts and more money was needed to register the vehicles, which Mr Terry was working on. Mr Terry was pursuing the formalisation of the agreement. He wanted to become a signatory on the Huge Lights' bank account, so that he could himself pay for spare parts. Mr Hughes also claimed that Mr Terry began making threats to 'dob him in', over the falsification of the invoices which had been supplied to customs. Whatever be the truth as to that claim, the relationship clearly broke down in January 2002 over some, or all, of these matters. 261 While he was away, Mr Hughes decided to bring the arrangement to an end. He was, no doubt, supported in that decision by Mrs Hughes. She had had no involvement in the business to that point, but agreed in cross examination that she had never been happy about this venture. She understood that Mr Hughes had invested $150,000 in the business, all he had received from a settlement after his earlier divorce, and was meeting other ongoing expenses of the business. Much of the equipment Mr Terry was working on was in pieces, more funds were needed for spare parts and registration expenses. Mr Terry and Mr Hughes were not in a position to begin trading. Mrs Hughes accompanied Mr Hughes, when Mr Terry was told to stop work and not to do any more, until they had a discussion. 262 There was no question that Mrs Hughes did not thereby become a party to this arrangement. She was not a director or shareholder of Huge Lights. It was not Mr Terry's case that she had employed him, or had been involved in this business arrangement, before its termination. Mr Terry claimed that during the conversation on 18 January, Mrs Hughes told him that she was a director of Huge Lights, which she denied. She certainly later told Mr Maine that she was a director. On her evidence, that was her misunderstanding of the effect of the power of attorney which Mr Hughes gave her later, after he attempted suicide. That understanding was wrong, as Mrs Hughes accepted. 263 Mr and Mrs Hughes took steps to have the locks of the workshop changed, while Mr Terry was away with Mr Davies at Stockton Beach. Mr Hughes was plainly not prepared to commit further funds to this business and no longer had any confidence in Mr Terry as a business partner. There can be no doubt that the business arrangement was thereby brought to an end, without any notice being given to Mr Terry. 264 While that conduct may well have been unfair, as claimed, the question of whether the business arrangement was unfair is a different one, to which I will now turn. Notice claim 265 Termination of their arrangement was one of the few matters, it seems, that Mr Terry and Mr Hughes did not discuss with each other. Mr Terry's case was that there had been a contract between the parties, involving offer and acceptance, as well as consideration. If that be accepted, in the absence of an express agreement, as to what notice was required to bring that contract to an end, it contained an implied term, requiring Mr Hughes and Mr Terry to give each other reasonable notice of termination. That plainly did not occur and so the contractual obligation was breached. 266 That the arrangement was unfair in not dealing expressly with the question of notice, as the summons claimed, is a different question. Even if that conclusion was available in this case, the making of any consequential money orders, is also a different question. 267 As was observed long ago in Autobake Pty Ltd v Budd (1986) 19 IR 18 in relation to a predecessor to s 106, at 20: Distinct and separate issues arise in relation to an application under s 88F, as discussed by the Commission in Court Session in Hodges v Streets Ice Cream Pty Ltd [1985] 11 IR 60. The initial questions which arises in relation to a contract or arrangement falling within the opening words of the section, is whether or not it offences against s 88F(1)(a)(b)(c)(d) or (e). that is a mixed question of fact and of law. If such a finding is made, the next question involves the exercise of a judicial discretion. It is whether or not the contract or arrangement should be avoided or varied. If the contract or arrangement is avoided or varied pursuant to s 88F(1) a further discretion then arises whether or not orders should be made under s 88F(2). 268 Undoubtedly, this arrangement was brought to an abrupt end. On 18 January, Mr Terry was told to stop work. On 20 January the locks were changed. Notice of six months was claimed as fair in the circumstances. On any view, such a period of notice would have been more than could have reasonably been expected, given the parties' dealings with each other since the preceding March. 269 The Court's jurisdiction to make the order sought was challenged. It is unnecessary to deal with that argument. Even if the contract was varied to require the giving of fair notice of say six weeks, or even two months, no money orders could eventuate. 270 Mr Terry sought money orders calculated by reference to the claimed $650 per week payment. On his evidence, there was no agreement for payment of any such sum until the business started earning income. There was no evidence from which it could be inferred that the business would have been in a position to trade during any such period of notice, or that income sufficient to pay him $650 a week, would have been generated. 271 This business never traded for reasons which reflected both what Mr Terry and Mr Hughes had done. The business plainly involved a calculated risk by each of them. So far as Mr Terry was concerned, that was made abundantly clear in cross examination, when he explained that he had twice considered walking away from this business. The first time this arose was in the UK, before he had put anything at all into the business, other than his time travelling to the UK. He then formed the view that Mr Hughes was an unreliable alcoholic. Despite his misgivings, he went ahead, putting his own money into the venture. He considered the situation again in October, when he began working to get the equipment ready, so that the business could trade. No income was being generated and Mr Terry took the view that he had invested too much by then, to walk away. 272 Mr Terry was, on his own evidence, under no illusions about Mr Hughes. As was observed in AutoBake at pp 29 - 30: 'Whereas no moral distinctions between the parties need be drawn when dealing with the initial question arising, namely, whether or not the contract offended again s88F(1)(d), the discretions which then arise under the section require for their exercise more than a mere comparison between award rates and actual remuneration and the circumstances that a calculated business risk, advisedly taken, has proved unsuccessful. Where such a calculated risk is taken it is not intended by s88F that the other party should become a guarantor, as it were, that the business will be successful, or that the party performing the work will receive at least the rates of pay he would have received had he been an employee. Each case has to be considered on its own merits and the discretion of the Commission exercised accordingly.' 273 Mr Hughes also took a risk with Mr Terry. They fell out with each other and the business failed. The result has been that Mr Terry has come to this Court misrepresenting the nature of his relationship with the respondents. Even putting that concern to one side for the moment, there was simply no basis upon which it could be concluded that Mr Terry was deprived of any money which was fairly his, had a fair period of notice in fact been given by Mr Hughes. The equipment claim 274 There was an evidentiary issue as to what happened after the lockout. Mr Terry complained that he was thereby denied access to equipment and materials which belonged to him, although denying that equipment he had claimed to have purchased in the UK in 2001 was his. In these proceedings, he claimed that equipment belonged to Huge Lights. Arrangements were later made for him to collect his things. That he was finally impeded from doing so was not established. Indeed, Mr Maine's evidence was that he had agreed that Mr Terry could store his things in his workshop and that he helped him move his belongings from the Huge Lights workshop over several days. Mr Terry complained that he had not been permitted to remove all that belonged to him, but what he alleged remained, was entirely unclear. Plainly, given the conclusion which I have reached, Mr Terry may have left behind equipment which did belong to him, intending to claim that the equipment belonged to Huge Lights. That claim was made in these proceedings and has failed. I can find no basis in this for any finding of unfairness. May any discretion be exercised in favour of the applicant? 275 I have dealt in some considerable detail with the difficulties in much of Mr Terry's case. I have come to the view that Mr Terry's approach to his evidence, including in relation to various of the documents relied upon, was of such a kind that a discretion could not be exercised to make any money orders in his favour, even if the contract was found unfair. 276 While it was submitted that there was no necessity for Mr Terry to prove that he had made payments in cash, other than by his own word, I am unable to accept such a basis for his claims. 277 The evidence was not such as to permit the conclusion that Mr Terry in fact paid the cash amounts which he claimed he had made. The Stanton Transport and GC Holding invoices were fabricated. The bank records which would have showed that the cash Mr Terry claimed to have used to pay these invoices, was withdrawn from his bank account, were not in evidence. No evidence was called from Mr Holding, or from the driver, to confirm that the claimed payments had been made. Nor was evidence called from Ms Holding, the claimed author of the invoices. Nor was evidence called from Mr Terry's mother, who he claimed had withdrawn the cash from his account. 278 Mr Terry also claimed to have spent 1,000 pounds on purchasing two generators, having been authorised to do so by Mr Hughes. As that evidence finally stood, Mr Hughes accepted that the generators had been purchased, but claimed to have left Mr Terry with 1,000 pounds in cash to pay for them. It appears that Mr Terry used his Barclay's card to pay for the generators. It was difficult to come to a view as to where the truth lay as to this claim. Given, however, the evidence as a whole, it had to be concluded that even if Mr Terry used his Barclays' card, there was no proper reason to reject Mr Hughes' evidence that he had given Mr Terry cash for the purchase. Mr Hughes plainly had the means to have done so. There was no evidence that Mr Terry himself had the necessary funds, other than his own claims. While Mr Terry had worked in Australia since 1999, both as an employee and for several periods during which he was in business for himself, he had no business or tax records of any kind, to demonstrate what his income had been. Nor could he provide any bank records which might have established that he had the means to pay the cash he claimed to have used in the UK, to pay for various purchases and expenses. It was not for the respondents to seek further evidence as to these matters. It was for Mr Terry to prove his case. 279 There were also difficulties with the Withams' invoices, which I have dealt with. Whether or not Mr Terry threatened Mr Hughes about what had been done in relation to customs, both his evidence and the course which these proceedings took, demonstrated Mr Terry's knowledge of what had occurred, before Mr Hughes' evidence in re-examination about these matters. These conclusions do not countenance Mr Hughes' conduct. Rather, they reflect the onus which here lay on Mr Terry. 280 It was in Mr Terry's interests for the costs of this business to be minimised. On his own evidence, he had been quite prepared himself to take steps in the UK, in order to achieve precisely that result. That he paid Withams cash, for the invoice he relied on in these proceedings, was not a conclusion properly available to be made, on all of the evidence. 281 These conclusions were also consistent with other evidence led by Mr Terry in his own case. Both Mr Maine and Mr Davies understood that some of the equipment being used in this business belonged to him. That was also Mr Hughes' evidence. I am satisfied that Mr Terry demonstrated no basis for his claim that he had paid for all of the equipment for which he sought reimbursement in these proceedings, or that he had acquired that equipment on behalf of Mr Hughes and Huge Lights. 282 Given all of the conclusions I have reached, I am firmly of the view, that had I concluded that the contract ought to have been varied to provide, for example, for the giving of notice of termination, and that any money orders could have been made in respect of that notice period, the Court's discretion could still not have been exercised in favour of Mr Terry. It would not be consistent with the public interest for the Court to lend its aid to this applicant, given his conduct in these proceedings. That is a matter to which attention must be paid, when the exercise of any discretion is considered under s 106, consistently with the requirements of s 146(2) of the Act. As Macken J observed in Saliba v John Hearder Pty Ltd (1986) 15 IR 36 at 38: 'There is a wealth of authority that one should not sleep on one's rights and that one should come before the Industrial Commission under s 88F with clean hands'. 283 Problems created when both parties to proceedings are less than truthful when giving their evidence, also arose to be dealt with in Gilmore v Allied Express Transport Pty Ltd [2006] NSWIRComm 16. There the contract in question was varied to address the unfairness demonstrated, but no money orders were made in favour of the applicant. That is not the appropriate outcome in this case, given Mr Terry's failure to establish his case. Orders 284 For the reasons given, I dismiss the application. The parties may approach in relation to a costs order. Such liberty should be exercised within 21 days. ------------------------ AMENDMENTS HISTORY: 10/08/2007 - An error in first sentence. The word 'unavailable' should be 'unavoidable'. - Paragraph(s) [247] 14/08/2007 - Spelling error - 'later' to become 'latter' - Paragraph(s) [246] 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.