New South Wales Supreme Court CITATION : AD'TEL DIGITAL SYSTEMS GROUP PTY LTD (IN LIQ) v FUTURE CORPORATION AUSTRALIA LTD (FORMERLY TELCO AUSTRALIA LTD) & ORS [2007] NSWSC 566 HEARING DATE(S) : 29 - 31/05/2007 JUDGMENT DATE : 18 June 2007 JURISDICTION : Equity JUDGMENT OF : Bryson AJ at 1 DECISION : 1. Give judgment for the second and third defendants.; 2. Give judgment for the fourth and fifth defendants with costs. CATCHWORDS : CORPORATIONS - Directors' Duties - claim that directors of parent and subsidiary entered into an agreement for the parent to sell the subsidiary's assets without considering and protecting the interests of the subsidiary which was not a party to the agreement: on the facts, the subsidiary's loss of assets was not shown to have been caused by the agreement. LEGISLATION CITED : Corporations Act 2001 Ad'Tel Digital Systems Group P/L (In Liq.) - Plaintiff Future Corporation Australia Ltd - 1st Defendant Alan John Thompson - 2nd Defendant PARTIES : Graham Douglas Favell - 3rd Defendant Terry Cuthbertson - 4th Defendant Siegfried Bernhardt Konig - 5th Defendant Geoffrey Thomas - 6th Defendant FILE NUMBER(S) : SC 3882 of 2002 Mr S Golledge - Plaintiff Alan John Thompson - 2nd Defendant in Person COUNSEL : Mr G Drew - 4th Defendant Mr G Rundle - 5th Defendant Geoffrey Thomas - 6th Defendant in Person Purcell Insolvency Lawyers - Plaintiff SOLICITORS : Mendika Law Pty Ltd - 4th Defendant Southern Cross Lawyers - 5th Defendant IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION BRYSON AJ MONDAY 18 JUNE 2007 3882 OF 2002 AD'TEL DIGITAL SYSTEMS GROUP P/L (IN LIQ) v FUTURE CORPORATION AUSTRALIA LTD (FORMERLY TELCO AUSTRALIA LTD) & ORS JUDGMENT 1. BRYSON AJ: The plaintiff company was formed in New South Wales on 15 April 1999. At that time it was named Adlink Group Pty Ltd. It changed its name to Ad'Tel Digital Systems Group Pty Ltd on 3 October 2000 and went into liquidation on 15 June 2001. In these proceedings, the company, which I will call Adlink Group, claims damages and other remedies related to the effect on its assets, of certain transactions in June 2000. Before those transactions, Adlink Group was wholly owned by the first defendant, which was then named Telco Australia Ltd, and is referred to here as Telco. The first defendant is a public company listed on the Australian Stock Exchange ("the ASX"). In June 2000, the third, fourth and fifth defendants were directors of both Adlink Group and Telco. The second defendant was a director of Adlink Group and the sixth defendant was secretary of both Adlink Group and Telco. 2. The plaintiff discontinued the proceedings against Telco on the first day of the hearing, after making some agreement with Telco, and did not press for judgment against the second defendant, Mr Thompson, or the third defendant, Mr Favell. On the third day of the hearing, I gave judgment for the sixth defendant, Mr Thomas, for reasons which I then stated: shortly, because in my opinion, the evidence did not show a case against him. 3. After its formation in 1999, Adlink Group established a business providing mobile phone, fixed-line phone and Internet services to retail customers, using access to, and time on, networks which it bought wholesale from much larger operators, principally Vodafone and AAPT. Adlink Group's business depended on satisfactorily servicing its customer base, maintaining and building the customer base and maintaining wholesale supply to itself. Mr Thompson, Mr Favell and several other persons associated with Adlink Group at the time of its establishment had associations with the Adventist Church, and Adlink Group's initial customer base was drawn largely from the Adventist community. 4. Ajaset Pty Ltd ("Ajaset") was a company formed in September 1998: Mr Thompson acquired control of Ajaset as a shelf company and became its sole shareholder and director. Ajaset was used to perform a small relocation job at the Sydney Adventist Hospital which Mr Thompson was not in the position to carry out himself because of other associations he had. Mr Thompson's shares in Ajaset were transferred to the Adlink National Unit Trust in 1998, and, when Adlink Group's business was established, Ajaset came to function in an ancillary way as part of the business of Adlink Group. 5. As it was, according to Mr Thompson's evidence, a requirement imposed by Vodafone that an entity other than the reseller contract with Vodafone, Ajaset contracted with Vodafone on Adlink Group's behalf and was Vodafone's designated customer and the purchaser of wholesale access to Vodafone services for Adlink Group. Much of the revenue from the supply of retail services was paid, at Adlink Group's direction, directly into Ajaset's bank account. Customers made payments in various ways: by deposits, BPAY and credit cards. By the times now relevant, Ajaset's bank account was at the Commonwealth Bank of Australia at Morisset. Adlink Group had bank accounts elsewhere; not all its funds were in Ajaset's bank account. However for some months many of Adlink Group's business expenses were paid out of Ajaset's bank account. Payments to Vodafone were, for example, made out of the Ajaset bank account. 6. Adlink Group, Ajaset and other companies associated with them operated very informally in that formal meetings of directors were never called. Significant decisions were made by Mr Favell and, as Mr Thompson's evidence depicts himself, he acted at Mr Favell's direction. The evidence mentions only one occasion on which the minutes of a purported meeting of directors of Adlink Group were signed. 7. Telco came to be the parent company of Adlink Group. It acquired 75% of the share capital in September 1999 and the remaining 25% in December 1999. Mr Konig was Managing Director of Telco and Mr Cuthbertson was a non-executive director. Telco established control of the Adlink National Unit Trust; the units in that trust came to be assets of Adlink Group. Mr Thompson lists the following as assets of Adlink Group at the time of its acquisition by Telco: (a) customer database (b) software – billing system (c) wholesaler and reseller agreements (Vodafone/AAPT/RSL.com) (d) office equipment There are references in Mr Thompson's evidence to other assets such as office furniture, computer equipment and cars, but he gives no specific details of the value and extent of those other assets. 8. Apart from shelf directors at formation, Mr Thompson and Mr Favell were the only directors of Adlink Group from 15 April 1999 until Telco became the parent company of Adlink Group in September 1999. On 9 November 1999, Mr Cuthbertson and Mr Konig became directors of Adlink Group. Records lodged with the Australian Securities and Investments Commission ("ASIC") show that Mr Cuthbertson and Mr Konig ceased to be directors of Adlink Group on 16 June 2000, however evidence before me leaves it unclear when and how exactly Mr Cuthbertson ceased to be a director. For any practical purpose, their directorships ceased on 16 June 2000. In June 2000, in transactions which it will be necessary to discuss at greater length, Telco disposed of its shares in Adlink Group to Link One Australia Pty Ltd ("LOA"). As before, there were no meetings of directors of Adlink Group while Mr Cuthbertson and Mr Konig were directors. So far as the evidence goes, their participation in Adlink Group's affairs took the form only of receiving reports and discussing affairs relating to Adlink Group at meetings of directors of Telco, the parent company. 9. From soon after Telco's acquisition of Adlink Group there are indications, in references to Adlink Group in Telco's Board Minutes for example, of dissatisfaction with the acquisition; the purchase did not come up to expectations. On 24 February 2000, the Telco Board received a presentation by Mr Grant Jennings whose investigations had revealed numerous areas within Adlink Group which required attention and improvement, including the billing system, intellectual property ownership, strategy and corporate culture. 10. At the Telco Board Meeting of 27 March 2000, Mr Konig referred to a company which he said was interested in purchasing the Adlink Group customer base for $1 million. The minutes show that Mr Konig reported: The Adlink Group was still in a loss making situation and would remain so for some time in its present form. It was suggested that Adlink Group's Internet assets be rolled into GoGo Net Pty Ltd and the remainder of Adlink Group be sold. Mr Thompson was named as a likely buyer. Mr Cuthbertson noted: We had paid $2,100,000 for the company and sustained losses of over $1,000,000. The Telco Board resolved: Mr Konig negotiate a break up on sale of Adlink Group Pty Ltd subject to final approval by the board. 11. The Telco Board Minutes of 2 May 2000 show: Mr Konig reported that he had negotiated an agreement with representatives of Finkelp Pty Ltd regarding the devolution of Adlink Group Pty Ltd. Under the Agreement, Telco would receive approximately $1.86 million, $500,000 of which would be cash. Mr Konig agreed to email copies of the Agreement to other Directors for perusal and comment. Mr Favell said he would discuss the matter with the Company Secretary shortly. It will be seen that the Telco Board did not give Mr Konig authority to enter into any sale agreement on this occasion. 12. The Telco Board Minutes of 25 May 2000 show that opportunities for disposing of Adlink Group were under consideration. No Telco Board Minute records any decision on the subject later in May or in June. Of course, there is no minute of any consideration by the Adlink Group Board of any proposed sale of shares in Adlink Group, or of assets of Adlink Group; that Board did not have meetings. 13. The first of the documents which, at least according to its terms, affected the assets of Adlink Group is a typewritten agreement between Telco and LOA headed "AGREEMENT dated 15 June 2000" ("the agreement dated 15 June 2000"). It was produced and drafted, without legal advice, at a meeting and negotiation at Mr Favell's property in rural New South Wales by both Mr Favell and Mr Konig. They did not have lawyers at their elbows; the form of their document suggests that they were in sore need of such assistance. There were others present; there is evidence that Mr Thompson was present but his own evidence is that he was not present, did not take part in preparing the document and did not sign the document until some time later. The agreement dated 15 June 2000 bears signatures of Mr Konig and Mr Thomas 'For and on behalf of Telco' and signatures of Mr Rorque Poisson and Mr A J Thompson 'For and on behalf of LOA'. The signatures of Mr Konig and Mr Thomas gave the document the effect of execution under the seal of Telco. It seems that Mr Poisson was present at the negotiation on behalf of LOA, in some capacity. Adlink Group and Ajaset were not parties to the agreement dated 15 June 2000 and nobody signed the agreement on their behalf, although, according to its terms, it principally affected their assets. 14. Mr Favell, Mr Konig and Mr Thompson were directors of Adlink Group, and each of them had duties to Adlink Group which should have moved them to consider and protect its interests; the document does not bear any sign of such consideration or protection. Mr Thompson, who signed for and on behalf of LOA, maintains that he was not present and did not sign the document on 15 June 2000. In his examination in the liquidation he said that he signed the agreement dated 15 June 2000 much later in June 2000. Determining whether or not Mr Thompson was present on 15 June 2000 is not critical to disposing of the issues. As the Minutes of the Directors Meetings of 27 March 2000 and later show, Mr Konig did not have authority to enter into a contract which bound Telco, and the limit on his authority was or should have been known to Mr Favell who was also a director of Telco. 15. The agreement dated 15 June 2000 contains recitals. The first is: 1. Telco is the owner of Adlink Group Pty Ltd and Ajaset Pty Ltd ("AA"). Other recitals include: 4. LOA seeks to purchase from Telco the customer base of AA and billing system used by AA to bill its customers ("AA Assets"). 5. LOA requests Telco to transfer the AA supplier agreements to LOA where possible. 6. Telco agrees to sell the AA Assets to LOA and LOA agrees to purchase the AA Assets from Telco on the terms of this agreement. 16. There are six terms under the heading "Mutual Agreements by the Parties" including: 1. The agreed price to be paid by LOA to Telco for the AA Assets shall be $1,500,000. The agreement provides for payment, by 48 monthly instalments of $31,500 per month, and for interest if payment is not prompt. The agreement excludes warranties of the billing system and statements about amounts owed by Adlink Group and Ajaset to suppliers as well as receivables. 17. There are then six clauses of agreements by Telco which generally relate to: providing finance; providing access to records of the AA Assets; transfer of staff, contracts and agreements; informing customers and the benefit and burden of assets and liabilities. There are also six clauses of agreements by LOA which mainly relate to the manner in which LOA is to take over assets of AA. 18. Of course Telco did not own the assets of Adlink Group and Ajaset, the 'AA Assets'. Even on the most favourable approach to its construction, the agreement dated 15 June 2000 cannot be regarded as an agreement to sell what Telco did actually own: shares in Adlink Group. Telco could, I suppose, agree to sell assets which it did not own, but it could only carry out and complete this by arranging for Adlink Group and Ajaset to transfer title in the assets to LOA. There was no agreement or arrangement which committed Adlink Group or Ajaset to doing that. The transfer to LOA of the supplier agreements would need to involve both Adlink Group and the suppliers if it was to be effective. The agreement dated 15 June 2000 could not transfer legal ownership of the AA Assets to LOA, and it was not enforceable in Equity, and hence did not transfer equitable ownership, because the owners of the assets were not parties to it, and further because LOA did not pay the price; LOA paid no more than two monthly instalments. What Telco could have done to give LOA effective control of Adlink Group, Ajaset and their assets is sell Telco's shares in Adlink Group to LOA; but the agreement dated 15 June 2000 did not do this. 19. On 27 June 2000, Telco published a Company Announcement to ASX, for practical purposes to the whole public, which began: The Board of Directors of Telco Australia Limited ("Telco") today announced that it had sold its retail reseller business, which trades under the banner Adlink, in a management buyout ("MBO") valued at $1.5 million. 20. The ASX announcement quoted statements by Mr Cuthbertson and Mr Konig about the sale, and spoke throughout in the terms in which it opened: that Telco had sold its retail reseller business. The ASX announcement was signed by Mr Thomas as Company Secretary. The deficiency of Mr Konig only having had limited authority had been overcome on or by 27 June 2000; the ASX announcement shows that the agreement dated 15 June 2000 had been ratified by the Telco Board. 21. A further document headed "AGREEMENT dated 29 June 2000"("the agreement dated 29 June 2000") is in evidence. This too, according to its terms, is an agreement between Telco and LOA; Adlink Group and Ajaset are not parties to the agreement. The recitals refer to the agreement dated 15 June 2000 and include: 2. The agreement should have included the sale to LOA of Adlink Group Pty Ltd and its subsidiary Ajaset Pty Ltd ("the Companies"). 3. The agreement should also have detailed that the sale by Telco to LOA of the Companies and the assets did not include any Internet assets. The Internet assets were specifically excluded from the sale and are owned or are to be owned by GoGo Net Pty Ltd. 4. The parties acknowledge that the agreement of 15 June 2000 should have included the sale to LOA of the Companies and the retention of the Internet assets by GoGo Net Pty Ltd in accordance with the verbal agreements reached by the parties on June 15 2000. 5. Telco agrees to sell the Companies to LOA and LOA agrees to purchase the Companies from Telco on the terms of this agreement. 22. There are agreements including: 1. The agreed price to be paid by LOA to Telco for the Companies shall be $1.00. There are also agreements: 2. Telco shall ensure that the Directors of the Companies will resign from the Companies within 7 days of the date of this agreement. 2. LOA agrees that the sale to LOA of the Companies and the assets detailed in the agreement of 15 June 2000 does not include any Internet assets. The Internet assets belong to GoGo Net Pty Ltd. 23. The agreement dated 29 June 2000 must be understood to be an agreement for Telco to sell all its shares in Adlink Group to LOA; it does not distinctly say so, but this must be what the references to 'selling the Companies' in the agreement dated 29 June 2000 mean. 24. When the agreements dated 15 and 29 June 2000 are taken together, it can be seen that they are extremely inept, but it can also be seen that Telco and LOA did nothing to set aside the agreement dated 15 June 2000 and the agreement for sale of assets which it contained, or the obligation to pay for them. The agreement dated 29 June 2000 instead made completion of the sale and transfer of ownership of assets to LOA provided for by the agreement dated 15 June 2000 economically superfluous. As a consequence of the agreement dated 29 June 2000, LOA came to own all the shares in Adlink Group and could control its assets (except for its Internet assets) through the vehicle of Adlink Group as its subsidiary; or could take transfer of title to those assets, as it chose. 25. The plaintiff's case against Mr Cuthbertson and Mr Konig was based on alleged breaches of statutory duties, imposed on them as directors, by provisions of the Corporations Act 2001, which came into effect on 12 March 2000, and other provisions to the same general effect in the Corporations Law, which had effect until then. Both Mr Cuthbertson and Mr Konig were directors of Telco, and also of Adlink Group, for the whole time that disposition by Telco of its interest in the Adlink Group was under consideration. Mr Cuthbertson and Mr Konig remained directors of Adlink Group until they resigned in June 2000; the date 16 June 2000 is attributed to their resignations although it is doubtful whether that was the exact date on which they took place. The clearest finding available is that they resigned after 15 June 2000 and before the ASX announcement on 27 June 2000 and the further agreement of 29 June 2000. There is no evidence that either Mr Cuthbertson, Mr Konig or any other director of Adlink Group gave any separate consideration to the interests of Adlink Group or of Ajaset in relation to the transactions of June 2000. If there had been separate consideration of the interests of Adlink Group or of Ajaset, it seems hardly possible that the agreements dated 15 and 29 June 2000 would have been made in the terms in which they were made. 26. Mr Cuthbertson was throughout the period a non-executive director of Telco and functioned as such; indications in evidence of his functions appear from Board Papers circulated to him by Mr Thomas, and from Minutes of Directors' Meetings. Mr Cuthbertson became or acted as the Chairman of Directors, and is described as the Chairman in the ASX announcement. There is no indication in the evidence that he took part in the management of the business otherwise than as a non-executive director, and no indication that he took part in the negotiation of the agreements dated 15 and 29 June 2000. Mr Konig functioned, and was active as, the Managing Director of Telco and was the representative of Telco who made any decisions that were made in regards to entering into the agreement dated 15 June 2000. Mr Favell, who was also a director of Telco, represented LOA in the negotiations. There is no evidence that anyone represented or gave consideration to the interests of Adlink Group or Ajaset in the negotiations; negotiations which resulted in an agreement for the sale of their assets for a large sum of money which they were not to receive. At this period, as at all periods throughout its history, so far as the evidence shows, there are no signs that Adlink Group functioned under the control of its directors in an ordinary manner; there were no formal meetings of directors of Adlink Group. 27. If it should be found that the agreements dated 15 and 29 June 2000 in fact caused Adlink Group to lose its assets without appropriate corresponding advantage, disposition of the plaintiff's case would require consideration and findings on whether Mr Cuthbertson and Mr Konig breached statutory duties they owed to Adlink Group, as directors of Adlink Group, in negotiating and effecting the two agreements. In such consideration, Mr Konig's position would be more exposed than that of Mr Cuthbertson as Mr Konig took an active part in the negotiations, (in substance, negotiations with Mr Favell, who was, like Mr Cuthbertson and Mr Konig, a director of both Telco and Adlink Group). Neither Mr Cuthbertson nor Mr Konig did anything to protect or even consider the interests of Adlink Group in the negotiations; but Mr Cuthbertson is relatively less exposed because he was not shown to have had any involvement between participating in the decision of the Telco Board to confer limited negotiating authority on Mr Konig, and resigning as a director of Adlink Group after the agreement dated 15 June 2000. 28. Regardless of its exact terms and of whether or not its terms were enforceable, the agreement dated 15 June 2000, and the action which its terms indicated was likely to follow, had every potential for causing all significant assets of Adlink Group, including its customer base, billing system and supply contracts (but not, with the qualification of the agreement dated 29 June 2000, its Internet assets) to be stripped from it, leaving Adlink Group with no assets and no gain. (It might not be completely right to say nothing, as Adlink Group, in that event, would have had the indirect protection of the indemnity and other obligations undertaken by LOA in respect of Adlink Group's liability). Adlink Group would not have received any corresponding advantage, as the money to be paid, $1.5 million according to the agreement dated 15 June 2000, was payable to someone else, to Telco, the parent company. Adlink Group would have been left as a shell and would not have been able to continue trading or incur further debts after its assets had been stripped from it. 29. In fact, Adlink Group was insolvent and was wound up a year later, with exquisite symmetry, on 15 June 2001. The liquidator was unable to find any significant assets. Adlink Group's customer base, billing system and supply contracts were gone; the cupboard was bare. 30. Proof of the loss which the plaintiff alleges requires proof of what happened to the assets referred to in the agreements dated 15 and 29 June 2000 as well as proof that their loss was caused by making the arrangements in those agreements. Only if this is established is it relevant to make findings on whether entering into those documents was the result of Mr Cuthbertson and Mr Konig breaching statutory duties they owed to Adlink Group as directors of Adlink Group. 31. In my opinion there is no substantial evidence that Adlink Group lost the assets referred to in the agreements dated 15 and 29 June 2000 by transfer of those assets to LOA. The probabilities do not support a finding that the assets were transferred, because when LOA became the owner of all the shares in Adlink Group, there was no need or purpose for taking assets out of the ownership of the subsidiary into the ownership of the new parent. One of the key assets was the supply contracts, as business could not be conducted without access to Vodafone and AAPT telephone systems, and the transfer of the supply contracts would have to have involved dealings with the supplier companies in order to be effective, and would have left a clearly recognisable footprint. To a high probability, Adlink Group just went on trading under its new ownership, and did so unsuccessfully. 32. Mr Thompson gave this account in his affidavit of 23 February 2006: 90. I believe that soon after the sale agreement, customers were sent a letter simply advising them that the company had changed its name to LOA. 91. I do not believe that Ad'Tel's suppliers were ever told of the sale agreement. The transfer of agreements from Ad'Tel to LOA did not take place. The suppliers continued to send their invoices to Morlin for payment and the invoices were still directed for the attention of Ad'Tel or Ajaset. 33. This is not the only account of events which Mr Thompson has given. He completed and certified a document dated 16 July 2001 entitled "Questionnaire for Directors and Officers" which is very sparse in the information it contains but asserts that Adlink Group, at that time, had no assets or liabilities, and that it had had no sales since June 2000. The document states to the effect that, after 15 June 2000, the assets and liabilities of Adlink Group were 'with Link One Australia'. The general effect of Mr Thompson's answers is that all Adlink Group business activities ceased after 15 June 2000. He gave a completely different picture of Adlink Group's affairs in an affidavit which he made on 4 December 2000 in winding up proceedings; according to that affidavit, Adlink Group was still conducting its business in December 2000. Mr Thompson recounted difficulties which had been encountered in that business and gave an estimate of approximately $20,000 per month for operational expenses. Mr Thompson produced profit and loss statements and balance sheets from internal management reports which showed that activity was continuing up to at least 9 November 2000. There is no trace in the affidavit of any transaction in which the assets of Adlink Group had been stripped from it, or of the difficulties for the business which that would have created. 34. Mr Thompson gave oral evidence before me. Throughout his evidence he made his involvement appear as little as he could, and depicted himself as acting, in any significant way, at the direction of Mr Favell. This depiction of his position cannot be reconciled with indications from the time when Adlink Group was in business which show Mr Thompson as an active figure. Mr Thompson has had some severe experiences including business failure and bankruptcy. In my opinion his answers to the questionnaire cannot be relied on, and his earlier and later accounts of Adlink Group continuing in business after June 2000 should be accepted. The absence of evidence from him or anyone else showing when and how assets were stripped from, or transferred away from Adlink Group, is very adverse to finding that they were in fact stripped from Adlink Group. 35. The plaintiff's counsel referred me to several other indications in support of the claim that Adlink Group had lost its assets as a result of the agreements dated 15 and 29 June 2000. The ASX announcement speaks in terms of the sale of assets, not shares. A letter from Net Telephone Marketing ("NTM") to Telco of 3 August 2000 contains statements which show the point of view of NTM as a supplier of Internet access services; the letter said that, since 1 July 2000, Gogo Net Pty Ltd had been contacting NTM to supply the network services, not Adlink Group. The burden of the letter was that NTM sought payment, by Telco, for services invoiced from May to July 2000. This letter from an outsider is of slight weight and its contents give no real support to the plaintiff's case. 36. A notice dated 1 May 2001 sent out by LOA to customers shows, according to its terms, that in and after October 2000 LOA was providing fixed-line phone services and Internet services but by May 2001 was no longer providing them and was 'in its terminating phase'. This does not, in my opinion, constitute substantial evidence supporting the transfer of ownership of assets out of Adlink Group. Counsel also referred to the unavailability in June 2001 of any assets to the liquidator. After an interval of a year, during which there was trading, and it should be understood unsuccessful trading, the simple absence of assets does not support the findings for which the plaintiff contends. 37. In my opinion, it should not be found that the transactions of June 2000 caused loss to the plaintiff of its assets as the plaintiff alleges. It is not necessary to examine closely and come to a view on the alleged breaches of statutory duties by Mr Cuthbertson and Mr Konig. In my opinion, I should give judgment for these defendants. As the plaintiff did not press for remedies against Mr Favell and Mr Thompson I should, in my opinion, give judgment for them also. 38. I earlier disposed of the proceedings against the first defendant by an order made on 29 May 2007 and against Mr Thompson by an order made on 30 May 2007. 39. My orders are: 1. Give judgment for the second and third defendants. 2. Give judgment for the fourth and fifth defendants with costs. ********** 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.