New South Wales Supreme Court CITATION : Bova v Avati [2009] NSWSC 921 HEARING DATE(S) : 18,19, 20, 21, November 2008, 23, 24, 25, 26, 27 March, 18 May and 30 July 2009 JUDGMENT DATE : 4 September 2009 JURISDICTION : Equity Division JUDGMENT OF : Ward J DECISION : Judgment for the Defendant CATCHWORDS : PARTNERSHIP – generally – whether plaintiff and defendant were engaged in partnership for the production, promotion and performance of comedy act – whether national comedy tour was an opportunity of the partnership, for which the defendant was liable to account – whether copyright in artistic work and sound recording were property of partnership for which the defendant was liable to account – whether defendant had breached fiduciary duty by use of opportunity and/or copyright – held that partnership between the plaintiff and defendant very limited in scope and did not extend to opportunity or copyright - PROCEDURE – discovery and interrogatories – discovery and inspection of documents – whether defendant had complied with discovery obligations – whether documents which the defendant would have been likely to obtain upon request were discoverable, absent an enforceable legal right to obtain them – held that such documents not discoverable – no evidence that defendant had failed to comply with discovery obligations. Civil Procedure Act 2005 LEGISLATION CITED : Copyright Act 1968 (Cth) Partnership Act 1982 (NSW) Supreme Court Rules CATEGORY : Principal judgment Absolute Analogue Inc v Sundance Resources Limited [2008] WASC 259 Adam v Newbigging (1888) 13 App Cas 308 Aetna Pacific Securities Limited v Hongkong Bank of Australia Limited (unreported, 29 April 1993) BSP Technical Services Pty Limited v AMEV-UDC Finance Limited (unreported, Hodgson J, 25 March 1985) Canadian Aero Service Limited v O'Malley [1974] SCR 592, (1973) 40 DLR (3RD) 371 Canny Gabriel Castle Jackson Advertising Pty Limited v Volume Sales (Finance) (1974) 131 CLR 321 Cribb v Korn (1911) 12 CLR 205 Douglas-Hill v Parke Davis Pty Limited (1990) 54 SASR 346 Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FCR 17 Hadid v Redpath (2001) 35 MVR 152 Harvey v Harvey (1970) 120 CLR 529 Hybernia Management & Development Co v Newfoundland Steel Inc (1996) NFLD & PEIR 90, 107 Industrial Equity Limited v Lyons (NSWSC unreported, Cohen J, 15 October 1991) Lawfund Australia Pty Limited v Lawfund Leasing Pty Limited (2008) 66 ACSR 1 Lonrho Limited v Shell Petroleum Co Limited [1980] 1 WLR 627 Macpherson v Macpherson (unreported, Supreme Court of Victoria Full Court, 30 November 1990) Midalco v Simpson (unreported, Supreme Court of Western Australia Full Court, 5 June 1987) CASES CITED : Monie v Commonwealth of Australia (2005) 63 NSWLR 729 Mount Lawley Pty Limited v Western Australian Planning Commission (unreported, WASC, 19 March 1999) NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 Neilson v Mossend Iron Co (1886) 11 AC 298 Palmdale Insurance Limited (in liq) v L Grollo & Co Pty Ltd [1987] VR 113 Phillips-Higgins v Harper [1954] 1 QB 411 Roux v ABC [1992] 2 VR 577 Russell v Russell (1880) 14 Ch D 471 Sabre Corp v Russ Kalvin's Hair Care (1993) 46 FCR 428 Sogelease Australia Limited v Griffin [2003] NSWSC 178 Spedley Securities Limited (in liq) v Bank of New Zealand (1992) 6 ACSR 571 SPI Spirits (Cyprus) Limited v Diageo Australia Limited (No 2) (2006) 155 FCR 150 Taylor v Santos Limited (1998) 71 SASR 434 Theodore v Australian Postal Commission [1988] VR 272 United Builders Pty Limited v Mutual Acceptance Limited (1980) 144 CLR 673 United Dominion Corporation Limited v Brian (1985) 157 CLR 1 Watson v Foxman (1995) 49 NSWLR 315 Weiner v Harris [1910] 1 KB 285 TEXTS CITED : Ritchie's Uniform Civil Procedure NSW Lindley & Banks on Partnership PARTIES : Carlo Bova (Plaintiff) Giuseppe Avati aka Joe Avati (Defendant) FILE NUMBER(S) : SC 4307/01 COUNSEL : P T Russell (Plaintiff) G A Sirtes SC (Defendant) SOLICITORS : Worthington Williams (Plaintiff) Gells (Defendant) - 2 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION WARD J FRIDAY 4 SEPTEMBER 2009 4307/01 CARLO BOVA V GIUSEPPE AVATI aka JOE AVATI JUDGMENT 1 These proceedings (commenced in August 2001 by summons) involve a dispute between the plaintiff (a musician with around 30 years' experience in the music or entertainment industry) and the defendant (a professional comedian since 1998) as to the nature of their working relationship over the period from April 1999 to July 2000. 2 Originally, Mr Bova sought orders and declaratory relief principally in relation to a claim of copyright in three particular sound recordings (contained in CDs and audio cassettes titled "Livin' La Dole-Cheque Vita", "Live & Unpluggato" and "Livin' La Dolce Vita") and in a large number of comedy sketches, skits or routines identified in Schedule 1 to the Summons. In the alternative, a claim was made for the winding up and taking of accounts of an alleged partnership in which Mr Bova says he was engaged with the defendant. 3 After various iterations (including an abandoned Fair Trading Act claim), the claim pursued by Mr Bova at the hearing was one based solely on the alleged partnership (though expanded to include claims of breach of fiduciary duty in relation thereto). As I understand it, it is accepted by Mr Russell, Counsel for the plaintiff, that the effect of the amendments to Mr Bova's pleadings was to abandon (or eschew) any claim that Mr Bova personally owns any copyright in any of the artistic, literary or dramatic works to which reference had been made in the pleadings (19.11.08 T 20.19-20) as well as any claim that Mr Avati has breached that copyright (19.11.08 T 14.33; T 15.20-22) (see also the discussion on 19 November 2008 at T 15.16-22; T 16.13-14; T 17.15-25; T 20.19-20). That said, Mr Russell confirmed on 19 November 2008 that Mr Bova does allege that certain copyrights form partnership property (T 16.13, though conceding that all claims in Mr Bova's own right had been abandoned), being property in respect of which it is said that Mr Avati is liable to account to the partnership (19.11.08 T 17.16; T 15.21). 4 Paragraph 14 of the Second Further Amended Statement of Claim alleges that the copyright in the sound recording referred to in paragraph 13(b)(i) (the "Livin' La Dole-cheque Vita" CD) and in the artistic work referred to in paragraph 13(e) (described as "T-shirts bearing the artistic work of a photograph of the defendant in a particular pose bearing the slogan 'Te' Nonna'") are assets of the alleged partnership. Mr Bova's claim before me in this regard was, as I understand it, limited to an account to the partnership for the use of those alleged partnership assets (19.11.08 T 17.16). Mr Russell expressly disavowed any claim by Mr Bova in relation to the jokes or routines (18.11.08 T 74.21), confirming that there was no issue as to whether Mr Avati could in the future perform the jokes or skits that were recorded on the Livin' La Dole-Cheque Vita CD (see discussion on 18.11.08 at T 80.40 – 81.33). 5 The hearing commenced on 18 November 2008. It was listed for five days. Following the taking of objections in relation to Mr Bova's affidavit evidence and argument in relation to the scope of the claim as then pleaded, leave was given for the further amendment by Mr Bova to the pleadings and the hearing was adjourned (without any oral evidence by then having been taken) until 23 March this year. Oral evidence was taken from 23 March to 27 March 2009 but not completed by that date (due to the need for further cross-examination on the damages aspects of the claim). The hearing resumed for one day on 18 May 2009 and, following the service of written submissions prepared for each of the parties, concluded with oral submissions on 30 July 2009. (I subsequently invited further written submissions on a discrete issue relating to any relief which might be available.) Fortunately, having regard to the disrupted nature of the hearing, I have had the benefit (when preparing these reasons) of the extensive notes taken by me during the hearing and, in particular, as to the respective witnesses (see generally Hadid v Redpath (2001) 35 MVR 152 at 159 [34] per Heydon JA; Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FCR 17 at 33 [73]; Monie v Commonwealth of Australia (2005) 63 NSWLR 729 at 742 [43] per Hunt AJA; NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 228 CLR 470 at 504 [109]-[111] per Kirby J, at 525 [169] per Callinan and Heydon JJ). Mr Bova's claim 6 Broadly speaking, Mr Bova alleges that (from a date which varied dramatically, not only over the course of the different pleadings but also during the course of his evidence in the witness box, from as early as March 1998 – well before the pair had even met - to as late as May 1999) he and Mr Avati entered into a partnership agreement for the commencement of a business together in the "production, promotion and performance by the parties of a comedy act based on cultural and lifestyle aspects of living in Australia with a Calabrian background" (my emphasis) (paragraph 5 of the Second Further Amended Statement of Claim). 7 Having regard to Mr Bova's affidavit evidence, it seems clear that what Mr Bova understood by that "comedy act" (at least when he came to swear his affidavit of 28 February 2006) was a comedy act he refers to in that affidavit as "The Show", and which seems elsewhere to be referred to as the "minimum show", first performed at the Parramatta Riverside Theatre in July 1999. (Senior Counsel for Mr Avati (Mr Sirtes) emphasises that it is this alleged partnership (with the terms as pleaded), and no other partnership or association, on which the whole of Mr Bova's claim stands or falls.) Mr Bova seems to regard "The Show" as something transportable or reproducible from one production to the next. Mr Avati, on the other hand, sees his comedy act as one which is constantly evolving. (In that regard, it seems unlikely that stand-up comedy would not involve at least an element of spontaneity. Mr Avati's evidence as to the development of his comedy routines seems to accord with the recollection of his brother, Anthony Avati, as to at least some of those comedy routines.) 8 Mr Avati denies the alleged partnership, though he does accept that there were two particular comedy productions (Carnivale Comedy and a New Years' Eve show at The Forum) in respect of which he did act in partnership with Mr Bova (T 265.4-10). The distinction drawn by Mr Avati in this regard is that those two events involved the promotion of other comedy acts, not of a show with Mr Avati as sole performer. Mr Avati says that (in relation to 'his' own show) what he agreed with Mr Bova was that he would retain or employ Mr Bova as his manager for an initial 12 month period, after which he chose not to renew that retainer. Mr Avati makes no distinction between the position of an employee or a contractor. The essence of his position is that he agreed to pay Mr Bova "to do something". 9 What is not in dispute is that the parties' working relationship came to an end (at Mr Avati's instigation) on 13 July 2000. Mr Bova contends that this was done by Mr Avati with the purpose, inter alia, of Mr Avati usurping or diverting to himself the business and opportunities of the alleged partnership (paragraph 15A Second Further Amended Statement of Claim), though Mr Bova's affidavit evidence suggests that he thought at the time that Mr Avati had done so not so much with a view to forthcoming profits but because of interference by Mr Avati's father (para 97 of his 28 February 2006 affidavit). Indeed, Mr Bova's immediate response in the witness box to the suggestion that he had understood in July 2000 that Mr Avati had improperly terminated the partnership was that it was "Frank Avati [Joe's father], not Joe Avati" [who had improperly terminated the "partnership"] (T 59). Mr Bova felt he had been unfairly "dismissed" from his managerial duties (and, it would seem, considered he had been arbitrarily excluded from participation in "The Show"). 10 Mr Bova seeks (apart from orders relating to the winding up of the partnership) an order that Mr Avati account to him (or to the alleged partnership) for any profits or benefits received or derived by him from the sale of the respective CDs and T-shirts and from a national comedy tour (the "Lock Up Your Nonna" tour) which commenced in late April 2000 and was continued by Mr Avati (after the termination in July 2000 of whatever were the then business arrangements (to use a neutral term) with Mr Bova) until July 2001. 11 This relief is claimed, variously, on the basis of the statutory entitlement to an account on the winding up of a partnership; on the basis of a fiduciary obligation on the part of Mr Avati, after the relationship came to an end, to co-operate in and act consistently with the agreed procedure for the realisation, application and distribution of partnership property (relying on Chan v Zacharia (1984) 154 CLR 178 at 196-197); and on the basis that it is said that Mr Avati obtained or derived a benefit or gain in circumstances where there was a conflict or significant possibility of conflict between his fiduciary duty and his personal interest in the pursuit or possible pursuit of such gain, or alternatively that such a benefit or gain was obtained or received by use or by reason of his fiduciary position or of opportunity or knowledge resulting from it. Reliance is placed on the corporate opportunity doctrine applied in Canadian Aero Service Limited v O'Malley [1974] SCR 592, (1973) 40 DLR (3RD) 371 in this regard. 12 There is no dispute that since July 2000 Mr Avati's career as a comedian has enjoyed a greater measure of success both in Australia and in Canada than had hitherto been the case (the "Live & Unpluggato" CD, for example, reaching a number one rating in Canada). Mr Sirtes describes this claim as a parasitic and opportunistic attempt by Mr Bova "to cash in on the considerable success" enjoyed by Mr Avati after the termination of an arrangement in which Mr Bova's role was merely that of managerial duties. Mr Bova, for his part, seems to have seen the pursuit of these proceedings as testament to his courage in (perhaps belatedly) standing up for his rights (T 184). In my view, Mr Bova's claim seems to be one born out of a genuine sense of grievance that his association with Mr Avati was so suddenly brought to an end after all he had contributed to, or done for, Mr Avati's career, but that does not of itself give him the entitlement he claims. Issues 13 The fundamental issue in these proceedings is whether there was a partnership, as between Mr Bova and Mr Avati, for the period from about April 1999 to 13 July 2000, as alleged by Mr Bova. As noted above, all of Mr Bova's claims for relief (including his claim to an account on the winding up of the partnership and to profits on the sale of the CDs and t-shirts) are predicated on the existence of the said partnership. 14 If there was a partnership between the two, then issues arise as to the terms and scope of that partnership; particularly, as to what was the business or property of that partnership and whether (as contended by Mr Bova) the continuation of the "Lock Up Your Nonna" national tour from July 2000 was a wrongful use or diversion of partnership property or business connections or of a maturing business opportunity of the partnership, so as to give rise to a claim by Mr Bova to share in the profits therefrom. 15 If Mr Bova is successful in establishing an entitlement to an account of profits or to equitable compensation on the basis of a breach of fiduciary duty or otherwise, a further issue then arises as to whether any such relief must be based on evidence confined to that which was adduced during the hearing or whether there should be a further enquiry for the purposes of determining the profit for which Mr Avati should account or the equitable compensation for which he is liable (depending on Mr Bova's ultimate election as to the alternative forms of relief claimed). This is the issue on which I invited supplementary submissions after the close of the hearing, having had further regard to the transcript of what was said at the time the then scheduled hearing dates were vacated by the former Chief Judge in Equity in August 2007 (something to which my attention had been drawn at an earlier directions hearing in this matter). Summary 16 For the reasons set out in more detail below, I have reached the following conclusions on the issues outlined above. (i) Was there a partnership as pleaded? 17 I am not satisfied that there was a partnership between Mr Bova and Mr Avati in the terms as pleaded, namely one pursuant to which they would jointly produce/perform comedy acts of Mr Avati (described by Mr Sirtes in his submissions as the "overarching" partnership claim). 18 I am of the view that the joint venture or undertaking which the parties agreed, in mid 1999, to pursue was one which was limited (in the first instance) to the comedy performances by Mr Avati which were booked at the Parramatta Riverside Theatre from July to September 1999 (the "Parramatta Riverside Theatre shows"). 19 Insofar as the parties subsequently conducted the production of other comedy shows together (such as the Enmore Theatre November 1999 shows, the New Year's Eve Leichhardt show and the January 2000 Crown Limited Club Odeon show) without first having put in place or discussed any other working arrangement, then I think it could be inferred that they did so on the same basis as the Parramatta Riverside Theatre shows. 20 Having regard to the discussions between the parties from at least March 2000, I think it is clear that the parties had not, as at April 2000 or at all, agreed the basis on which any further shows were to be produced (and, in particular, had not agreed that the then anticipated national tour was to be conducted on the same basis as the Parramatta Riverside Theatre shows). Accordingly, I do not consider that the steps taken towards a then proposed joint production of the series of shows comprising the Lock Up Your Nonna national tour can be said to have been governed by or on the same basis as the arrangements which were agreed in mid 1999 for the Parramatta Riverside Theatre shows. 21 Mr Bova's claims, based as they are on a broader or "overarching" partnership (including his claim to a statutory account on the winding up of any such partnership), must therefore fail. (ii) Scope of the limited joint venture/partnership between the parties 22 As to the nature of the joint venture/undertaking in which the parties were involved in 1999 in relation to the Parramatta Riverside Theatre shows, although the evidence is by no means consistent I consider on balance that the arrangements between the parties were such as to give rise to the conclusion that they were in partnership together for a limited purpose – namely, for the production of the Parramatta Riverside Theatre shows – and that they later produced a limited number of other shows (the Enmore Theatre shows, for example) on the same basis. 23 I reach that conclusion taking into account that there was clearly a common enterprise; that, although the basis on which the payments ultimately made to Mr Bova were calculated is not clear, the payments seem to have represented (and the parties had understood that Mr Bova would receive) a share of the returns from those particular shows, after reimbursement of Mr Bova's initial expenses (and, later, after a sharing of expenses by way of allocation of a percentage of the show revenues to ongoing costs); that Mr Avati had referred to Mr Bova as his "partner" to Ms Maggio (whose evidence I accept in this regard) and, in all likelihood, to others (since he seems to have used descriptive terms such as "partner", "business partner" or "manager", fairly loosely) as well as on the CD insert for the Livin' La Dole-Cheque Vita CD; and that Mr Avati, at the very least, did not disabuse Mr Bova's accountant (Mr Gillon) of the notion that the two were intending to share (and had in the past shared) the profits of activities conducted jointly under the LEM business name. I do not see the informality of this arrangement as precluding a finding of partnership, particularly since an informal collaboration of this kind is consistent with the way in which Mr Avati seems to have been content to allow others (including later, for example, his uncle Mr John Suraci who he said wanted to become his "partner" and seems to have been allowed to exercise managerial or distribution rights) to become involved in his career. 24 I do not accept that the production of the Livin' La Dole-Cheque Vita CD was an activity carried out within the scope of any such (limited) partnership as existed between the pair. It resulted, on Mr Bova's own evidence, from a separate arrangement between the two (and one which was, according to Mr Bova, at least initially limited to the profits of the first one thousand CDs produced). Similarly, I do not consider that the production of the Te Nonna t-shirt falls within the scope of any such limited (Parramatta Riverside Theatre shows) joint venture or partnership. Nor am I satisfied that Mr Bova has established that the copyright in either the Livin' La Dole-Cheque Vita CD or the Te Nonna t-shirt was an asset of the "partnership" simply because those items were produced in connection with the marketing of Mr Avati's shows. 25 I do not consider that the "Lock Up Your Nonna" national tour was a maturing business opportunity of any such (limited) partnership. Nor would I have found that to be the case even if I had found there to be an overarching partnership of the kind alleged by Mr Bova (with perhaps the possible exception of a claim for a half share of the profits for national tour bookings already made as at 13 July 2000). At best, had I found a partnership as alleged by Mr Bova, I would have found that the only use of business connections which might have been able to form the subject of a claim for breach of fiduciary duty by Mr Bova would have been the use of whatever contacts or connections the pair had developed over the course of their "partnership" to make the national tour bookings as at 13 July 2000 (ie for the next three months), the evidence as to which is by no means clear. It is not apparent that the bookings were made using any such connections. Rather, the evidence suggests that the pair discussed between themselves likely venues, and one or other of the pair made enquiries as to those likely venues and proceeded on the basis of those enquiries to make bookings at least up until 8 July 2000. Therefore, I consider that any claim for equitable compensation or account of profits by reference to the national tour would have been limited to that extent. 26 The reason I do not see the national tour as otherwise falling within any maturing business opportunity doctrine (assuming the doctrine were to be applicable) is that neither Mr Avati nor the comedy routine(s) he had developed was the "property" of the partnership, as such. The fact that inchoate ideas for a national tour, or for production of a second CD, were discussed between Mr Bova and Mr Avati does not seem to me to amount to a sufficient business "opportunity" arising out of any joint venture or partnership between them to invoke that doctrine. The fact that Mr Avati continued after July 2000 to perform and develop a comedy routine which had its origins even before he met Mr Bova makes it difficult for me to accept that (even to the extent that Mr Bova may be said to have assisted in its development) Mr Avati's "show" was a business opportunity arising out of the working relationship between the pair such as to make it a breach of fiduciary duty for him to continue to perform the "show" for his own benefit after that working relationship came to an end. 27 To the extent that it is relevant, I find as a matter of fact that Mr Avati terminated his working relationship with Mr Bova not (as alleged) with the purpose of usurping or diverting the profits from the national tour but because he had become concerned that Mr Bova was not "pulling his weight" in the relationship and had formed the view (whether influenced by his father or otherwise) that he no longer wished to continue their working relationship. As Brereton J recognised in Lawfund Australia Pty Limited v Lawfund Leasing Pty Limited (2008) 66 ACSR 1, absent express provision a partnership is ordinarily terminable at will (at [32]) and, again absent special provision, a partner is not required by the obligation of good faith to remain in partnership with another with whom he or she no longer wishes to be associated (at [33]). 28 Similarly, even had I found there to have been a partnership of the kind alleged (and a fortiori on the only partnership which I consider may have been established), I would not have upheld the claim for profits for the sale of the Live & Unpluggato CD, which came into existence after the relationship ended and could not, in my view, be seen as a "maturing" business opportunity of any partnership between the two based solely on the brief discussions the pair seem to have had as to the idea to create a "new" CD. (iii) Relief 29 If, as I have concluded, any partnership (or joint undertaking or enterprise) between Mr Bova and Mr Avati was for the production of a specific series of shows, then once that series came to an end so, arguably, must have the partnership. (As Brereton J noted in Lawfund, at least in some single undertaking joint ventures a term may be implicit to the effect that the relationship continues until the object of the venture is achieved whereupon it comes to an end, though ultimately the terms of the parties' agreement will be decisive.) In any event, it clearly came to an end, if not before, on 13 July 2000. 30 Since Mr Bova seems to accept that he has received all to which he claims he was entitled as at that date (other than profits from the ongoing national tour or for the CDs/merchandise to which I do not consider him to be entitled), an order now for the taking of accounts for the limited partnership would seem to be of no utility. In any event, as I understand it no such relief was sought other than in relation to the "overarching" partnership pleaded in the Second Further Amended Statement of Claim. 31 In light of the conclusions I have reached, the claims for relief have not been established. Had a breach of fiduciary duty as alleged been made out, the question would arise as to whether any further account or enquiry as to profits/damages should be allowed. 32 But for one issue, I would have been inclined in those circumstances to find that any equitable compensation or account of profits should be determined on the evidence already before the court. This matter has been on foot for an inordinately long time. Mr Bova has had ample opportunity to gather evidence to support his claim and has been on notice since at least August 2007 that issues of quantification were, or were likely, to be dealt with as part of the main hearing rather than (as had been suggested to Young CJ in Eq, as his Honour then was) the subject of a separate enquiry or referral to an Associate Judge. 33 The qualification I make to this is that which arises out of the concerns that have been raised as to whether there has been compliance by Mr Avati of his discovery obligations. I am not in a position to make, and do not make, any finding as to this. However, in circumstances where there was evidence (albeit, on Mr Avati's part, that this was for overall tax planning purposes) that, shortly after these proceedings were commenced, Mr Avati's business affairs were re-structured with the effect that the control of those affairs was placed (as was the entitlement to receipts referable to his shows/sale of CDs or the like, other than his annual salary) not only outside his hands but also largely outside the jurisdiction and where Mr Avati's responses in the witness box suggest that he was somewhat cavalier in exploring whether any relevant documents could have been made available by way of discovery or in answer to a notice to produce served on him in these proceedings (so, for example, at T 432, Mr Avati accepted that he could have worked out profit from calculating the number of sales less cost of sales but then said, "If I wanted to. For what reason?"), I would have been inclined (had I considered Mr Bova to have established his claim in relation to overseas CD sales) to allow a further enquiry to be made at least of the profits from the overseas sales of the Livin' La Dolce Vita CD. 34 As it is, however, this issue does not arise. For the reasons set out below, I dismiss the plaintiff's claim with costs. Facts · Background of the parties 35 From towards the end of 1998 (having performed part-time as a stand-up comedian from mid 1995), Mr Avati has been a full time professional comedian. His comedy routines are, as I understand it, designed to appeal to an audience of persons of Italian (or, more particularly, Calabrian) descent. These comedy routines, it is accepted, involve various jokes or skits which often have punch lines in Italian or involve a play on Italian words or in a Calabrian vernacular or dialect. 36 Prior to becoming a professional comedian, Mr Avati had been employed as a food scientist from 1996-1997 and as a sales representative from 1997-1998. On 3 July 1997, Mr Avati registered a business name "Stand Up and Be Counted Productions" ("SUBC") and a bank account was at some stage opened in that name. However, it appears that Mr Avati's business experience prior to meeting Mr Bova was relatively limited. Some of his answers in the witness box reflected that inexperience, in my opinion. For example, Mr Avati's suggestion that if what was received as revenue went back out in expenses it would not be necessary to include this income in a tax return, ie his understanding that he only had to declare a net result for income tax purposes, and that he did not need to declare any moneys "parked" in the LEM account (T 356; T 367) (which he seemed to assert in the witness box with an air of surprise that this might not be so). 37 Mr Bova, who is some 11 years older than Mr Avati, has had an involvement in the entertainment industry since about 1973. He is (or was at the relevant time) the sole proprietor and operator of a music store by the name of Downtown Music Guitars ("DMG"). There was no evidence to suggest that Mr Bova had had experience in writing comedy scripts or in managing comedy acts prior to meeting Mr Avati. However, Mr Bova did give evidence of considerable experience in the music industry, including performances with various bands. (Mr Bova's greater experience as a businessman is pointed to by Mr Sirtes to suggest that had Mr Bova in fact understood there to be a partnership between the two he would have taken steps to have it properly constituted and to ensure that there was compliance with obligations in relation to the filing of partnership tax returns and the like.) · First meeting – November 1998 38 The parties first met at a café in Leichhardt (Café Norton, then operated by a friend of Mr Bova's, Mr Bomba) in November 1998. Mr Avati was then in his early 20's. Mr Bova says the meeting was arranged by a Mr Enzo Piazza (a comedian with whom Mr Avati was performing a "due compari" comedy routine at the time). 39 Mr Avati gave evidence, which was largely not disputed, as to his experience as a comedian prior to meeting Mr Bova (although there was some dispute as to how best his comedy routines prior to meeting Mr Bova might be described, how long they lasted, and whether they were promoted as bilingual shows). Mr Russell submits that there was a significant change in the nature of the Parramatta Riverside Theatre show performances (in that these were the first bilingual shows advertised as such; that it was the first time that Mr Avati had stood up on stage by himself without a supporting act in a theatre for a one man show; and that they were longer shows) but he relies on this only to demonstrate the contribution made by Mr Bova to that show. 40 Whatever the nature or extent of the contribution later made by Mr Bova to the development of Mr Avati's comedy routines, it seems clear (as Mr Sirtes emphasised when addressing the objective likelihood of Mr Avati entering into an arrangement in 1999 of the kind asserted by Mr Bova) that by the time the parties met in late 1998 Mr Avati had already performed comedy routines at various private (Italian) functions (including a 50th birthday party, and some weddings) and various public functions at the Enmore Theatre, Rammazotti's Pizza Café, and on radio and television (including a radio show "La Dole-Cheque Vita" on community radio station 2RDJ-FM and a performance on "The Footy Show"). It is said that Mr Avati by then had a degree of experience as a comedian, had left his full-time employment in order to pursue a career as a professional comedian, was able to perform bilingual shows in English and in Italian (speaking a Calabrian dialect), and had written sufficient comedy routines to enable him to perform a solo routine on stage (either for over an hour, as Mr Avati contends, or somewhat less than that, as Mr Bova contends). Having performed on both radio and television by then, Mr Avati had also presumably begun to develop a profile as a stand-up comedian in this genre of comedy. 41 There is a dispute as to what was said at the parties' initial meeting (as, indeed, there was a dispute as to what was said in many of the conversations or meetings to which the parties deposed). Mr Avati says that Mr Bova told him that he was interested in managing entertainment acts and that he wanted to explore this further with Mr Avati. Mr Bova says that Mr Avati said to him that he and Mr Piazza needed "good management". 42 The conflicting versions of this initial conversation seem to reflect the different perceptions of the parties in this litigation as to their relationship. 43 Mr Avati presents his relationship with Mr Bova as one in which Mr Bova was very anxious (perhaps somewhat desperate) to have a role or to be involved in the management of Mr Avati's career whereas he (Mr Avati) was cautious of committing himself to any long term or final arrangement (saying that he had been let down before) and regarded it as "his" show or "his" business. 44 Mr Bova, on the other hand, portrays the relationship as one in which Mr Avati was seeking out professional help from him to manage and develop Mr Avati's career and was looking to make use of his experience and contacts. Mr Bova believes that he played a significant role in making Mr Avati a "star" (perhaps not without some measure of justification, at least insofar as Mr Avati himself credited Mr Bova – in the CD insert to the Livin' La Dole-Cheque Vita CD which is Exhibit J - with having spent countless hours in the pursuit and realisation of Mr Avati's dream). Nevertheless, the suggestion that, without Mr Bova, Mr Avati's career would have gone nowhere is difficult on its face to accept. 45 In any event, it is not disputed that, in November 1998, Mr Avati suggested that Mr Bova come along to see him perform at the Enmore Theatre and that Mr Bova subsequently did so in December 1998. This is the first time that Mr Bova had seen Mr Avati perform a comedy routine ("Stand Up for the Wogs"). 46 Mr Bova considered that there were aspects of the performance which could be improved. (In this regard, Mr Bova says that he told Mr Avati at that time that his "vocals and guitar need a lot of work", whereas Mr Avati does not recall even having played the guitar in the Enmore Theatre performances.) Mr Bova says that over the period of his relationship with Mr Avati he assisted in the 'construction' of jokes, in the 'choreography' of Mr Avati's routine, among other aspects of his performance, including offering advice on 'stage patter' and the like, and taught him how to play the guitar. The extent of his contribution in this regard is disputed. For instance, the example he gave of 'stage patter' – "I don't speak alcohol" – is a line with which Mr Avati said he was already familiar (and which hardly seems to involve comedic inspiration) and Mr Avati says he already knew how to play the guitar but seems to accept that on occasion Mr Bova showed him how to play some chords. 47 The material put forward by Mr Avati as to the derivation of various of his jokes, including details as to when they had been performed (in many cases prior to having met Mr Bova), together with the descriptions given by other witnesses (such as Mr Puglisi and Mr Caridi) as to the joke-writing process, suggests to me that the collaboration between the pair was of an informal and ad hoc kind; and that Mr Bova has somewhat exaggerated his contribution to the writing of skits/sketches for Mr Avati's shows. (Mr Sirtes points out that while Mr Avati has continued his career as a comedian there is no suggestion that Mr Bova has been involved in comedy writing since then.) · USA/Canada trip – January 1999 48 Having only met in late 1998, it would seem that a friendship quickly developed between the two because in January 1999 Mr Avati travelled to the United States/Canada with Mr Bova and some of Mr Bova's acquaintances at Mr Bova's behest (the trip apparently paid for by Mr Bomba but, Mr Bova says, with financial contribution from him to that cost and for the expenses of the trip). 49 During the USA/Canada trip, Mr Avati made some brief comedy performances (in Las Vegas and Vancouver). There is a factual dispute between Mr Bova and Mr Avati as to the circumstances in which those performances were arranged (for example, Mr Bova says he made use of his contacts to arrange a comedy spot at the MGM Grand, Las Vegas; whereas Mr Avati suggests booking this was at his own instigation but that he had asked Mr Bova to make the call as his "manager" – as I apprehend it, so as to appear more established as a performer). There is also a dispute as to whether any payment was received for the Canadian performance. 50 Mr Sirtes pointed to the incongruity of Mr Bova's portrayal of these events, at least insofar as Mr Bova's 6 November 2008 affidavit deposes to a conversation in which he says he asked Mr Avati to nominate the "number one" comedy venue in Vancouver (a city where Mr Avati had not previously performed but where Mr Bova himself had friends or relatives and could readily have obtained that information from them). 51 Ultimately, the dispute over what happened during the USA/Canada trip does not seem to go to anything other than, perhaps, the credit of the respective parties (and even then it seems to me to be of little weight). It is not disputed that Mr Avati did accompany Mr Bova and his friends to the USA and Canada in January 1999 (and there is evidence of Mr Bova's credit card statement showing flights charged in January 1999 to Mr Bova for himself and two friends, though not for Mr Avati, to Los Angeles and hotel or other charges in Las Vegas from 20 to 25 January 1999). · January/February 1999 52 On their return to Australia, Mr Avati moved into premises at Concord in which Mr Bova was renting from Mr Caridi a ground floor apartment, Mr Avati's own lease having expired at about that time. There is a dispute as to the circumstances in which Mr Avati came to share Mr Bova's rented Concord accommodation (which he did until early December 1999). Mr Avati concedes that he had little money at that stage but denies that he moved in due to any difficulties with his parents, as Mr Bova suggests. Nothing turns on this. Mr Avati says he agreed to pay Mr Bova rent or board initially in the sum of $100 per week and later $150 per week, but that such payment was only to be made when he could afford it. Mr Bova seems to accept that he was willing to defer payment for rent or board in order to assist Mr Avati. 53 Mr Avati says that in December 1998 or early 1999 he had a conversation with Mr Bova in which he said he was going to perform at the Melbourne Comedy Festival, probably calling his routine "Livin' La Dole-Cheque Vita" (which apparently was the name of his radio show). He says that Mr Bova told him that he really wanted to be involved in Mr Avati's show and said, "I really enjoyed acting like I was your manager [in Canada]". (If the statement attributed to Mr Bova was in fact made in the same conversation as the one in which Mr Avati referred to the forthcoming Melbourne Comedy Festival, then the conversation must have taken place sometime in or after late January 1999, since there was evidence only of one joint trip to Canada and that was in January 1999.) In this conversation, Mr Avati says he suggested that Mr Bova come down to the Melbourne Comedy Festival to see the show. Mr Bova subsequently did so, at his own expense. 54 The Melbourne Comedy Festival performance was one which Mr Avati said had been arranged in 1998 and was one in which a Mr Lawrence Jackson was involved (apparently as promoter) with Mr Avati. It is not clear to me whether Mr Jackson was the promoter of the overall festival or of Mr Avati's show as part of that festival. However, nothing turns on this. There is no evidence as to the nature of the arrangement between Mr Jackson and Mr Avati. Mr Bova says that Mr Avati told him he was on a 50/50 split (after expenses) with Mr Jackson. At the conclusion of the festival, a reconciliation sheet was produced, from which it appears that Mr Jackson may indeed have taken a 50% share of the (relatively small) profits from Mr Avati's performance at that festival. (Exhibit CB 1 to Mr Bova's 28 February 2006 affidavit is a copy of that reconciliation sheet.) 55 Mr Bova says that before the Melbourne Comedy Festival Mr Avati asked him to help promote the Melbourne show and that he agreed to do so. At least some of the posters used to promote Mr Avati's performance at the Melbourne Comedy Festival included the words "Lookout Entertainment Management" ("LEM") (a business name which had previously been registered by Mr Bova). This is the name under which Mr Bova says he and Mr Avati later carried on their partnership business together. However, it was not suggested at the hearing (contrary to Mr Bova's earlier pleadings) that the two were actually working together in any business sense by this stage, whether in partnership or otherwise, (although Mr Bova says that discussions had taken place in which Mr Avati said he would rather have him (than Mr Bomba) as his manager - para 30 of Mr Bova's 28 February 2006 affidavit). 56 The use of the LEM name on the Melbourne posters is therefore on any view of the case rather surprising. Mr Avati explains this by saying that this was done to assist Mr Bova to build up his business name as a "goodwill gesture" or a favour to him after the USA/Canada trip. In cross-examination Mr Avati said that (insofar as he had later used LEM letterhead at various times) he did so because he thought it "looked better" to send faxes out under that name. Therefore, I suspect that the use of LEM on some of the Melbourne Comedy Festival posters may have been because Mr Avati considered that the appearance of a promoter standing behind him would enhance his image as a performer (just as he had, earlier in the year, asked Mr Bova to describe himself as his "manager" overseas). 57 Whether or not that be the case, it is an early indication that neither Mr Bova nor Mr Avati was particularly careful or precise in the use of the name LEM or in how the nature of any collaboration between themselves in relation to Mr Avati's performances was presented to the public or to other parties (something which in my view makes it difficult later to attach much weight to the use made of the LEM name in similar promotional contexts, though in this regard I do distinguish the use of the LEM name on business documents, contracts, invoices and the like). · April/May 1999 58 By some time around April/May 1999 (Mr Bova puts this date, after much confusion, at April 1999 but at the least after the Melbourne Comedy Festival; Mr Avati puts it in late May 1999 after Mr Bova had returned from a trip to Italy), the parties had a conversation in which they seem to have reached an oral agreement or understanding that they would work together in relation to at least the then proposed series of comedy performances by Mr Avati to take place in Sydney. What that agreement or understanding comprised is the crux of the present dispute. 59 As to the time of this conversation, Exhibit 1 is a copy of a document prepared by Mr Bova in about 2003. Mr Bova said he prepared it for his own recollections or as his own summary (T 101.40-45). These proceedings had, by then, already been commenced. Exhibit 1 lists various dates during the period from May 1999 to 13 July 2000 during which Mr Bova was travelling overseas. Relevantly, these include the period from 30 April 1999 to 20 May 1999; the relevance of this being that it places any conversations in April/May 1999 as being in the period either before 30 April or after 20 May 1999 (since there was no suggestion that the conversations took place by telephone while Mr Bova was overseas). 60 (For what it may be worth, Ex 1 not only supports the inference sought to be drawn by Mr Sirtes that Mr Bova cannot have been present or actively involved as either Mr Avati's partner or manager during much of the later "Lock Up Your Nonna" national tour, which commenced on 28 April 2000, as Mr Bova was overseas from 2 May to 14 May 2000 and his business involvement with Mr Avati was terminated on 13 July 2000, but it also to my mind indicates a tendency to exaggeration on Mr Bova's part – since it discloses not only the trips to Italy referred to in his affidavit but also a trip to the USA in February 2000, yet in paragraph 73 of his 28 February 2006 affidavit Mr Bova says "The only time I did not perform constant work for the partnership during the 1999/2000 period was when I travelled to Italy" (my emphasis). The suggestion that Mr Bova worked "constantly" on his joint ventures with Mr Avati is not only inconsistent with Mr Bova continuing his DMG business during that period but with his recognition in April/May 2000 that Mr Avati was unhappy that he was not "pulling his weight".) 61 Mr Bova says that (in what appears to have been put forward as the key conversation in April/May 1999) Mr Avati asked him to be his manager (28/02/06 affidavit, para 36) and words were said to the following effect: Bova: "Joe, I'm not prepared to keep putting all this time in unless I can make some money out of it. If you want me to help you then you'll have to make me your manager and share any profits that are made from the act with me. If we do it right, there's not only money to be made from the performances but also merchandising and sponsorship." Avati: "I'm OK with that. I want you to be my Manager. I can see that how much you've helped me so far. Sounds good. What do you want?" Bova: "Before we get into how we split any profits, we need to work out what each of us are going to do. The way I see it, you're the comedian and I'm the businessman come entrepreneur. I can continue to help you develop your act and teach you what I know about the business. I can also help save us money because I can do all the lighting, sound and visual technical stuff we need to do to put on the show. With all the people I know in the business I can promote you and get us sponsorships." Avati: "I can help out with bookings and office work. I enjoy being on the phone and doing all the phone stuff. I've got a good phone manner, so I can help out with booking tours and shows, publicity, and just the everyday stuff that needs to be done. I can do that from home." Bova: "The problem with that is that you can't be Joe Avati, the star, if you're going to be doing the office work." Avati: "That's OK, I'll say I'm Joe's brother - Anthony. If there is any sponsorship or money to be discussed I will put them onto you". 62 Pausing there, it is by no means apparent to me that as at April 1999 Mr Bova had been putting a substantial amount of time into the promotion of Mr Avati or Mr Avati's "show" such as to warrant the comment "I'm not prepared to keep putting all this time in unless …" (my emphasis). On Mr Bova's own evidence, he had watched Mr Avati perform at the Enmore Theatre and had made some suggestions as to his performance; he had taken Mr Avati with him on the USA/Canada trip (which Mr Avati saw as a holiday and on which any promotion of Mr Avati must surely have been a sideline to Mr Bova's main reason for travel, since the trip was arranged or planned before any suggestion that Mr Avati accompany Mr Bova and also before the Melbourne Comedy Festival); he had lent the LEM name to some promotional material and had spoken with friends/contacts to encourage them to see the Melbourne show. It is not clear that Mr Bova had contributed in the writing or preparation of the comedy skits or routines for the Melbourne Comedy Festival, but if he had done so that would seem to have been in a social context, as Mr Avati's housemate, listening to and commenting on jokes or ideas for comedy routines. 63 Nor is it easy to see that Mr Bova had, by then, helped Mr Avati so much in relation to the show (as opposed to providing financial support or assistance both with the US trip and with the rent/board for their shared accommodation) as to warrant a fervent acknowledgement of the kind attributed to Mr Avati in this conversation ("I can see that how much you've helped me so far"). 64 Further, what Mr Bova seems to have had in mind (on his version of the conversation) was a role as promoter, albeit one having the title of "Manager", for which he would obtain a share of the profits from "the act" and perhaps from any "merchandising and sponsorship"; not a partnership as such. 65 Finally, the account given by Mr Bova of the conversation (insofar as it suggested at this early stage that Mr Avati was going to be "Joe Avati, the star") again indicates in my view a tendency to exaggeration or hyperbole on Mr Bova's part, since on any view Mr Avati's career was then in its early days. Mr Bova's affidavit sets out, for example, various conversations he says he had later during the Parramatta Riverside Theatre shows (para 57 of his 28 February 2006 affidavit) in which he says Mr Avati said, "Carlo, I'm more than happy to share anything we make together. I was broke when I met you and you are helping me to fulfil my dreams" and, similarly, after Mr Bova's comment, "Joe, I'm not doing this so you can make yourself a big star without me", he says Mr Avati said, "I was broke when I met you. If it wasn't for you I would still be broke I am more than happy to let you have half of what I make. Don't worry, I will keep to our agreement" (para 37). 66 Mr Bova (somewhat curiously in light of the evidence he adduces from family and friends suggesting that the partnership was often the subject of discussion) says that Mr Avati said to him in that conversation that he was "serious" about keeping quiet about their business as a partnership – a statement which Mr Sirtes suggests is contrived in order to explain the absence of any written record of the alleged partnership. If confidentiality was, indeed, Mr Avati's concern (which Mr Avati denied), then the conduct deposed to by Mr Bova's friends or family is hard to explain. 67 Mr Bova says it was agreed that (with the exception of "private" shows, which both parties broadly understood to be shows for which tickets to the public were not on sale; such as private birthday/wedding functions or the like) he and Mr Avati would in partnership carry on the business involved in the production, promotion and exploitation of Mr Avati's comedy performances on terms and conditions, including that they would share the profits of the business equally; that Mr Bova would be solely responsible for any losses until such time as the business first accrued profits; that Mr Bova would contribute sufficient funds to conduct the business until such time as it accrued profits; and that the assets of the partnership business were to be owned by the parties in equal shares (Second Further Amended Statement of Claim paras 6-8, 12). 68 There was a further term and condition alleged by Mr Bova as to how "private" shows were to be dealt with, paragraph 10 of the Second Further Amended Statement of Claim alleging that Mr Bova was to be entitled to 25% of any profits arising from private shows using material, some of which had been performed by Mr Avati prior to the partnership. None of the evidence suggests that a 25% figure was ever discussed; and Mr Bova seems to accept that the arrangement, as such, for private shows was at most 20%. While the inability to establish one particular alleged term of the partnership agreement is not in my view fatal to the claim that there was a partnership, it does cast doubt as to the reliability of Mr Bova's recollection of the discussions in general. 69 Mr Avati denies the tenor of the April/May conversation as recounted by Mr Bova. Mr Avati's version of the conversation is that Mr Bova was keen to invest money in the show and to do the work for Mr Avati's show, and that when Mr Bova suggested that Mr Avati do the performing and they would share the profits says his response was: "Mate I hear what you're saying but I don't want to risk it … I will have a think about what your [sic] saying and we can talk about it some more". In that regard, Mr Russell poses the rhetorical question as to what "risk" there can have been if Mr Bova was going to fund the show until profits started to be made. Mr Avati accepted in cross-examination that there was no risk for himself in the agreement as pleaded by him (T 319). However, as I understand Mr Avati's evidence, Mr Avati's reference to the "risk" he saw at that initial stage of agreeing to Mr Bova's work proposal seems to have been not so much any financial risk of the shows not being profitable but the risk that the proposed managerial relationship might not (as ultimately seems to have transpired) work out well (a matter which conceivably could have had an impact on Mr Avati's industry profile or contacts and which ultimately seems to have influenced Mr Avati's decision not to continue the relationship after July 2000). 70 Mr Avati accepts that it was agreed that he would pay Mr Bova to help in the promotion of the show he was contemplating to perform in Sydney. However, he says that what Mr Bova was to be paid was not a share of profits. Mr Avati says he said: Look Carlo I am not sure if your [sic] interested or not but I am going to need some help to do this but I'll pay you for it this time. It's going to be a bigger project than Melbourne so what I was thinking would be if you wanted to be involved more than you were in Melbourne, more of a 'hands on' role this time. My name is starting to get out there so I am going to need a manager to represent me soon enough so if you like I could say that you're my manager as well, officially. I will pay you for any work you do and any out of pocket expenses you incur. and that it would be for a trial period. The response he attributed to Mr Bova (namely, "you will see that I am good mate. You won't find anyone better to do the job than me" and that "you won't be disappointed with me") accords with what I would describe as the effusive manner Mr Bova displayed in the witness box. 71 Mr Avati says that the agreement reached between them (albeit in late May 1999 after Mr Bova returned from Italy) was that Mr Bova would act as his manager for a trial period of 12 months. Mr Avati says that subsequently, in June 1999, they agreed that Mr Bova would be paid $1,000 per week (when funds were available) plus out-of-pocket expenses and a percentage (20%) of any private shows secured for him by Mr Bova from 1 January 2000. Mr Avati denies that there was any discussion as to the two being partners or equal partners or of them splitting the profits. 72 There is nothing (other than Mr Avati's assertion to this effect) to support the conclusion that there was ever an agreement for payment of a weekly wage to Mr Bova. No document records such an arrangement; no group certificate was issued; I was taken to no evidence of superannuation guarantee levy or workers compensation insurance payments by Mr Avati or the like as might have been necessary had Mr Bova been an employee on such a wage. 73 Again pausing there, an arrangement whereby the show profits would be split on some percentage basis (whether or not 50/50) would not have been inconsistent with the way Mr Avati seems to have undertaken the earlier Melbourne Comedy Festival show with Mr Jackson as promoter. Nor would it seem to me to be so inherently unlikely as to warrant outright rejection as being a perverse state of affairs, at least if the proposed arrangement was for a particular show or defined series of shows. What does seem to me unlikely is that someone in Mr Avati's position (having only just commenced performing full-time as a professional comedian) would have committed himself to a long term profit sharing arrangement in such an informal fashion (having had no real opportunity at that stage to assess the workability of any business relationship with Mr Bova). 74 Both Mr Bova and Mr Avati seem to have understood that the moneys to fund the Parramatta Riverside Theatre shows (whether under the partnership, on Mr Bova's version of events (Plaintiff's Outline of Submissions paragraph 3(a)), or under an informal funding arrangement of the kind Mr Avati suggests was offered by Mr Bova) or to pay Mr Bova's wages (on Mr Avati's version of events (Defendant's submissions paragraph 16)) would be provided by or paid to DMG (ie to or through Mr Bova's music business). I therefore think no weight can be placed on the fact (if it be the case) that Mr Bova did not personally fund any expenses in relation to the shows (as Mr Sirtes submitted). It seems to be accepted by Mr Avati that DMG provided some sponsorship and that Mr Bova arranged other sponsorship for the first of the "joint" productions. 75 Mr Bova asserts that it was agreed that the partnership would use or carry on business under the LEM name. 76 As to the LEM name, Mr Avati seemed to accept that the parties had agreed (in mid 1999) to carry on in partnership a business of putting on other comedy acts under that name, although he seems to have considered this a separate arrangement to the production of his own shows. He said, in effect, that he was giving priority at this stage to his own show. (If so, this could well explain why little was done formally to establish the partnership (by way of setting up bank accounts, obtaining a tax file number or the like) at that stage.) When cross-examined, the "criteria" for those other ventures were identified by Mr Avati as being "one day" to "manage or put on shows involving comedians and/or musicians. That was the criteria. Except for the Joe Avati personal show, my show, my ideas that I had" (T 265.28). 77 What Mr Avati does not accept is that LEM was the vehicle through which he and Mr Bova carried on a business partnership for Mr Avati's own acts (T 307.8). 78 Mr Avati explained the use of the LEM name in the context of his own acts (which flies in the fact of his evidence as to their partnership being limited to other comedians' acts), variously, as being that the name LEM was used in relation to Mr Avati's own performances as a matter of convenience, or as being a way of "branding" (or advertising) LEM, or as being due to a misunderstanding on his part that LEM was a corporate entity. So, for example, Mr Avati says he regarded the reference to "LEM presents" on ticketing for the Parramatta Riverside Theatre shows in June/July 1999 as branding on "another piece of real estate, if you like" (T 276.32); in other words his view was that the branding of LEM as presenter or promoter of his comedy shows would carry weight and give confidence in him for the booking of his show by venues or promoters, and at the same time build up a profile for LEM to use when and if he and Mr Bova (later) managed other acts. 79 At T 278, Mr Avati said: The whole reason we did that [said LEM "presents" on the Parramatta Riverside show promotional materials] was because this is a show that hopefully a lot of people were going to come and see. There was going to be lot of advertising associated with it. So what a great opportunity to be able to brand Look Out Entertainment Management. So that when Carlo and I put on other shows, other than the Joe Avati show, Look Out Entertainment Management would have begun to have a bit of a profile. So, it is not misleading, not at that time, sir, because nobody would have known who Look Out Entertainment Management was. We were beginning to try to build it. (T 278.15) 80 This is consistent with Mr Avati's apparent lack of regard for precision in identifying the actual entity involved in the promotion of his shows, noted above in relation to the Melbourne Comedy Festival show. · July 1999 – December 1999 81 What happened after the discussions in late April/May 1999 was that Mr Avati performed "his" comedy show or comedy routine (the La Dole-Cheque Vita routine, as developed from his earlier comedy performances) at various venues, including: (i) the Parramatta Riverside Theatre, from 14 July 1999 to September 1999 (at around which time the "Livin La Dole-Cheque Vita" CD was produced, sales of which commenced in Australia in December 1999); (ii) the Enmore Theatre in November 1999 (three nights a week); (iii) a venue in Canberra also in November 1999; (iv) Club Marconi in December 1999; and (v) the Crown Entertainment Complex (Club Odeon) (where Mr Avati was appearing as part of a show involving other performers) in January 2000. 82 Mr Bova seems to have provided managerial and other assistance in relation to the production of each of those shows. Nevertheless, it seems fair to say that in relation to the first of those productions (the Parramatta Riverside Theatre shows), it was Mr Avati's idea for the shows and Mr Avati was involved to a large extent in the arrangements for the production. Mr Avati gave evidence that he had made the theatre booking (although Mr Bova says he was also involved in the choice of venue), paid the deposit, and worked (with assistance from Mr Bova or his contacts) on the media campaign for the show in May-June 1999. Mr Avati accepts that Mr Bova was involved in the advertising of the show (para 117(b) of Mr Avati's affidavit) as was Mr Bruno Puglisi (Mr Bova's vocal coach, who also gave evidence in the proceedings). 83 Mr Avati paid for the editing of the TV commercial and advertisements for the show from his SUBC account. Mr Bova's assistance in the preparation of the comedy routines seems to have related to the manner of delivery of the routines and suggestions in relation to punchlines or ideas for jokes, rather than scriptwriting per se; an informal process of collaboration in which others (such as Mr Puglisi) also joined from time to time. Over the relevant period much of the collaboration in relation to writing seems to have been 'around the table' contribution to jokes or ideas for skits in an informal, seemingly social, process, in which others (including Mr Puglisi) also participated, or later watching video recordings of shows and commenting on what jokes had gone down well (or otherwise) with the audience. Unlike Mr Avati, who produced various copies of notes setting out ideas for jokes and the like, jotted down on miscellaneous bits of paper, Mr Bova's contribution to the creation of the material was not documented at the time. 84 LEM was held out as the "promoter" of Mr Avati's performances at the Parramatta Riverside Theatre. All payments seem to have been deposited to the SUBC account but the Parramatta Riverside Theatre reconciliations were addressed to LEM. What was paid from the LEM account in 2000 was rent for the parties' then shared accommodation (something not directly attributable to any partnership as such, but perhaps legitimately able to be treated as a partnership expense insofar as the production/preparation for the shows was to some extent carried out from the shared premises). Mr Bova also funded various of the pair's expenses, such as meals and the like. The income from the Parramatta Riverside Theatre shows in turn seems to have been drawn on largely to fund the other comedy performances in 1999 in which the parties were involved. · Livin' La Dole-Cheque Vita CD 85 In September 1999, the parties collaborated on the production of the first CD (Livin' La Dole-Cheque Vita). 86 Mr Avati's evidence is that he conceived the idea for a CD, as a marketing tool, during the course of the Parramatta Riverside Theatre shows and that he suggested this to Mr Bova from whom he sought help and who encouraged Mr Avati to use his services as they would be less costly. Mr Bova recorded the 10 September 1999 Parramatta Riverside Theatre show, material from which was used to create the Livin' La Dole-cheque Vita CD (a copy of which was tendered as Ex J). 87 Mr Avati says that he selected the tracks for inclusion in the CD and that he wrote all but one of those tracks. Mr Bova created the musical score for the last track, which was not recorded in the course of a performance of a show, and he is credited with this on the CD cover. (Insofar as Mr Bova claims that the sound recordings on that CD constitute partnership property, this claim is based on the fact that the CD was created during the alleged partnership or with partnership funds, not his role in making a relevant sound recording. As I understand it, what was said was that, wherever the copyright might lie, Mr Bova or the partnership had an entitlement to an account in respect of the use of the sound recording as a partnership asset.) 88 Mr Avati (through loans from Mr Bomba) paid the expenses in relation to its manufacture (other than Mr Bova's services) from his SUBC account (and Mr Bova appears to concede this). Mr Avati says he borrowed an initial sum of $3,500 from Mr Bomba in December 1999 to assist with the manufacture of the CD (Mr Avati's affidavit para 209(a)) (which he says was deposited into the SUBC account on 7 December 1999) and a further sum from Mr Bomba in February 2000 ($10,000) to manufacture more CDs. That money seems to have been deposited into the LEM account (Mr Avati's affidavit paras 209(b), 228 ff). Mr Avati says that he repaid Mr Bomba in 2000 and there does not seem to be a dispute about this. 89 Mr Avati says that he asked Mr Bova to nominate a fee for his work in the creation of the CD and that he paid Mr Bova what was asked in that regard. Mr Bova denies this and says that the arrangement was for the profits from the sale of the CD to be shared equally. (I consider later some correspondence which it is said sheds light on this arrangement, but suffice it for the moment to say that as at the time the CD was created there was again nothing in writing outlining the arrangements between the parties in relation to its production.) 90 Mr Bova's 28 February 2006 affidavit sets out (in para 62) the conversation he says took place during the process of designing the CD insert, in which he says he said, "So all is cool with you Joe? If I produce and edit the CD and organise the manufacture of the first thousand? The first lot of money we take goes to pay my expenses the rest we continue to split 50/50. There is no cost for any of my recording, editing or mastering". He says that Mr Avati said he was happy with that arrangement. 91 To the extent that Mr Bova says that there was a separate discussion about this CD, it cannot have been regarded by him at the time as part of the initial joint venture between the pair (be that a partnership or otherwise) since if it had been such a discussion would have been unnecessary. It also seems odd that if Mr Bova felt the need to confirm that level of detail as to the arrangements for the production of the CD, this would not have been recorded in writing. Be that as it may, this discussion is inconsistent with the production of the first CD falling under the rubric of the partnership. 92 The insert to the Livin' La Dole-Cheque Vita CD included thanks by Mr Avati to a number people (including all the "gang" at DMG) and "very special thanks" to a few individuals about whom a specific written comment was made, including: Bruno Puglisi – a good friend, comedy writer, spiritual healer, vocal coach and critic. Thank you so much for your creative input and perseverance in helping me achieve the 'minimum show'. Your calmness is unparalleled. Thanks mate. … To Carlo Bova – My best mate, business partner, manager, housemate, relationship consultant, alarm clock, chief negotiator, producer, guitar teacher, chef, comedy writer, photographer, pain in the arse, roadie, sound technician, heckler, originator of the 'minimum show', a loving Dad to Michael and Cassie and above all a very funny bloke. Your contribution and energy over the last year has been priceless. You have made the show, and this recording, a realisation. Someone, who knows you well, best described you when they said – "if everyone in the world was like Carlo, we'd be in the year 2050". I think that says it all! Thanks for the countless hours that you have spent, in the pursuit, of my dream. 93 On the back of the insert was a photo of a show ticket with bold lettering "Lookout Entertainment" and underneath the words "Joe Avati La Dole-Cheque Vita". 94 The back of the CD cover included the following words: All material originated by Joe Avati, except track 14 written and performed by Carlo Bova and Joe Avati. Recorded "Live" at the Parramatta Riverside Theatre, Parramatta Sydney, Australia by Carlo Bova and Shan Soley except track 14, recorded in "The Kitchen Studio", Sydney by Carlo Bova. All tracks mixed and edited in "The Lounge Room Studio", Sydney by Carlo Bova … Produced by Joe Avati and Carlo Bova. ... Joe Avati Representation: Lookout Entertainment Management. 95 It was Mr Avati who prepared the initial draft of the credits for the CD. He gave evidence that he had consulted with Mr Bova in relation to the credit to be given to him on the CD; that Mr Bova (apart from a complaint that too much credit was being given to Mr Puglisi in suggesting he was a comedy writer - affidavit para 182) had asked for the description "business partner" to be changed to "business advisor" but then asked that it be changed back again (affidavit paras 179, 181) (and, certainly, there was a draft showing the deletion of "partner" and insertion of "advisor", though it is not apparent on the face of the draft that this was at Mr Bova's instigation); that the CD credits contained some private jokes between the two (such as to the year 2050 reference – harking back to one of Mr Bova's own comments, he being said to be the "someone" who knew himself well; the reference to a "minimum show" – this seemingly being a process or concept not a "show" as such, see 18/11/08 T 78.12-16, and said by Mr Avati to be a joke by reference to Mr Puglisi's constant mantra to that effect; and also, perhaps, though this is mere conjecture on my part, in the titles given to the respective "Studios" in which the recording and editing/mixing of the CD had taken place); and that the CD included commentary which was of particular personal significance to Mr Bova given his then family situation. 96 Even allowing for some artistic licence or exaggeration on Mr Avati's part, and a desire to accommodate Mr Bova's wishes, what is clear is that the credit given by Mr Avati to Mr Bova on the CD acknowledges that Mr Bova had spent "countless hours" and had played an important role in bringing the show (and CD) to realisation. That said, it also refers to "the pursuit of my dream", words apt to indicate that what Mr Avati understood had been realised in that process was individual (not shared or partnership) success. 97 (The "Livin La Dole-Cheque Vita" CD was subsequently released in 2001 (T 382) under a different cover and with different credits, in Canada as "Livin' La Dolce Vita" (Ex L) – its insert does not have the detailed thanks or special thanks to individuals appearing on the Australian version. Mr Avati says he removed the references to Mr Bova on the CD insert because, by then, Mr Bova was saying things about him (T 384). That CD states "All material originated by Joe Avati" and that "Joe Avati Representation" is "The Comedy Corner, Sydney Australia".) 98 Meanwhile, in September 1999, Mr Avati and Mr Bova were also involved in a Carnivale Comedy show performed in the foyer of the Enmore Theatre. Mr Avati says this was one of the (only) two ventures he did carry out in partnership with Mr Bova, that being a partnership for the joint promotion of other people's comedy performances. (The other such venture, he says, was a promotion for the opening of The Forum in Leichhardt on New Year's Eve.) · Advice from Mr Avati's accountant – November 1999 99 In about November 1999, Mr Avati was given advice from an accountant (Mr James Cassim) that he should incorporate a proprietary limited company for tax and liability reasons. 100 Mr Cassim gave evidence (and was cross-examined) as to his recollection of the conversation which he had with Mr Avati in late 1999 concerning that advice. Mr Cassim's best recollection seemed to be that what he gave to Mr Avati was the kind of advice he would generally give his clients, such as that one of the main aspects of incorporation was to limit liability (T 481.47). He accepted that it was more than likely that he said something about the lower company tax rate as well (T 482.17). 101 In his affidavit (para 7) Mr Cassim deposed that he did not recall any partnership being in existence between Mr Bova and Mr Avati. He was cross-examined as to what he had understood by Mr Avati's response (as set out in his affidavit) to the general tax advice he had given to Mr Avati (the response to which he deposed being that Mr Avati had said words to the effect, "Yes, we use many different services and a corporate identity makes sense" - T482.41-T483.7). Mr Russell submits that, by using "we", Mr Avati must on that occasion have been referring to Mr Bova. Mr Cassim was unable to recall what he had understood at the time by the word "we", suggesting that (by that) Mr Avati could have meant his family. He did not recall having heard of Mr Bova at that stage. In the circumstances, however, if Mr Avati did use the word "we" (and Mr Cassim's recollection as at the time he swore his affidavit was to that effect) he must surely have been referring to Mr Bova since there seems to have been no involvement by any of his family in the production of his shows during that period. (Of course that does not, of itself, suggest that Mr Avati was referring to a partnership, as such, with Mr Bova. Indeed, had he done so to Mr Cassim it seems likely that any general tax advice Mr Cassim gave would have taken that into account - T 492.42.) · Opening of LEM account 102 Mr Avati says that he told Mr Bova about the advice he had received from Mr Cassim and asked Mr Bova if he could use LEM "as a company" where he could "park money" or direct the revenues from ticket and CD sales (T 299.8-24; para 205 of his affidavit). (Mr Cassim, in cross-examination said he did not give any advice in relation to "parking money" in any corporate account nor, perhaps unsurprisingly, did he give any advice to the effect that Mr Avati should put his money into any company account which was not his own (T 484.16-22).) 103 In cross-examination, Mr Avati said that he assumed LEM was a company (T 301.44; T203.31) (an incorrect assumption but one which at least Mr Bova's manager at DMG, Mr Caridi, appears to have shared – see Mr Caridi's affidavit). Mr Avati says Mr Bova told him they would need to open an account for LEM. That was done in December 1999. Both Mr Bova and Mr Avati were signatories to the account. Mr Avati accepted in cross-examination that he became aware that LEM was not in fact a company from shortly after or around the time he had sought advice from his accountant, ie towards the end of 1999 or early January 2000 (T 301.1-25). When asked to explain why he kept putting money in that account when he was aware it was not a company, he said: Yes, I could have paid money into that company or into the Stand Up And Be Counted account. At that point, when I found out it was not a Pty Ltd company, it would have been equal to the Stand Up And Be Counted account. Once I sorted myself out, then I directed the funds into the new company [by which I understood him to be referring to The Comedy Corner Pty Limited which was later incorporated by Mr Avati], which is then what happened. 104 When pressed, Mr Avati said that another reason for using the LEM account was to give Mr Bova some assurance, security or peace of mind that Mr Bova would be paid the money he "owed" him (T 304.50; 305.29; 307.30). (He had not, in his affidavit evidence, suggested any such reason nor had he suggested that Mr Bova had expressed to him any concern about being paid. I therefore treat this explanation with some caution.) · December 1999 – March 2000 105 In December 1999, Mr Bova and Mr Avati moved from Concord into a residence leased by them jointly at Balmain Cove. Monthly rent for the Balmain Cove premises was paid by cheques written on the LEM account from 7 January 2000 through to and including 7 June 2000. 106 Towards the end of 1999 a Joe Avati website was established. Mr Bova says he assisted in the provision of material for its creation. 107 Commencing from around the time of his performance at Club Odeon in January 2000, "Joe Avati merchandise" (at that stage relevantly the "Livin' La Dole-Cheque Vita" CD) was sold (largely by way of cash sales) at the venues at which Mr Avati performed. At some stage this merchandise also became available for purchase, via orders placed on-line from Mr Avati's web-site. A print-out from his web-site (Ex R) shows such products as still being advertised for sale. Mr Avati explained this as his "back catalogue" (T 441-442). 108 Mr Avati says that he did not do any projects with Mr Bova after New Year's Eve 2000 because he (Mr Avati) was very busy putting together the national tour (T 310.25). The idea of a national tour was apparently discussed some time in late 1999 or early 2000. Mr Bova says the itinerary for the national tour was booked by late January or early February 2000. Mr Avati says that the relevant time was from February/March 2000. Mr Avati seems to accept that the two were together involved in making the initial tour arrangements. 109 Whatever the timing, it seems clear that in early 2000 the parties were discussing what was to happen next in terms of Mr Avati's career. · March 2000 – meeting with Mr Bova's accountant 110 At some time in the first half of 2000, the parties met with Mr Bova's accountant (Mr Paul Gillon). Mr Gillon says that he only met Mr Avati on this one occasion and the meeting was in a café. There is a dispute as to the timing of the meeting. Mr Bova and Mr Gillon both put this meeting as occurring in mid-March 2000. Mr Avati, on the other hand, says it was May 2000. 111 Mr Bova's own document, headed "Summary of (Italian Trip) Dates" (which he says was prepared in about 2003 - Ex 1), records Mr Bova as being in Italy from 8-17 March 2000 and from 2-14 May 2000. (Mr Bova had also been abroad in the USA for two weeks in February 2000). Therefore, if the meeting was in March 2000, then it seems likely to have been towards the end of that month. 112 The impetus for the meeting seems to have been the then forthcoming introduction in 2000 of GST. (Although there was also evidence that at or around this time Mr Bova and Mr Avati were considering a proposal for the acquisition of an entertainment management agency or business run by a Mr Roy Ortuso (Abstract Entertainment), there is no suggestion that Mr Avati was involved in any discussion with Mr Gillon about that. Rather, advice seems to have been sought by Mr Bova from Mr Gillon in relation to that proposal and, following Mr Gillon's advice, it was not pursued.) 113 Mr Gillon says that at the meeting he attended with Mr Bova and Mr Avati, his advice was sought about GST and the registration of the two as a business. Following the meeting, Mr Gillon (or someone from his office) lodged an electronic application for an Australian Business Number (ABN) in the name of LEM and for a Tax File Number (TFN) for Messrs Bova and Avati as a partnership. Annexures A and B to Mr Gillon's affidavit are copies of the respective applications. 114 The ABN electronic application does not appear to have a date on it, other than a handwritten notation of May 2000. That might suggest that the meeting was in or close to May 2000. However, the TFN application form (unsigned) is dated 31 March 2000 and notes the date of commencement of the "partnership/joint venture" as March 1999, which (given Mr Gillon's recollection that Mr Avati and Mr Bova had told him words to the effect, "We have this unique show… We are partners in the comic act" and that they had been doing it for nearly a year) is consistent with a March meeting date. 115 However, if so, then it seems that there was some delay in Mr Gillon's firm lodging the relevant documents, inconsistent with Mr Gillon's evidence as to his practice in such matters. At p 211 of Mr Bova's bundle of documents is a copy of a letter dated 11 May 2000 stating "We advise that we have electronically lodged your Registration application for an ABN" and enclosing a copy for his records. The TFN was issued on 17 May 2000 (see p 212 of Mr Bova's bundle of documents). 116 Mr Russell concedes that whether or not the meeting was in March or May 2000 may not ultimately be of any real moment. However, if it was in fact in March (as I am inclined, in light of the date on the TFN application form, to think it must have been - since I see no reason why Mr Gillon would have backdated that form, nor was it suggested that he had) it does point to the unreliability on this occasion of Mr Avati's memory for dates. (Mr Avati seems to have placed this meeting at May 2000 because he recalled it taking place not long before he "dismissed Mr Bova" – T 309.) That said, Mr Bova's memory for dates was at least as, if not more, unreliable (manifested in numerous instances during his cross-examination, such as the date on which he reached agreement with Mr Bova for the alleged partnership and also as to dates of personal or other significance, such as his father's death or (relevant to his alleged contributions to jokes) the Gulf war or as to him following Mr Avati's career on YouTube at a date before it was in existence). 117 Whatever the date of the meeting, Mr Gillon (whose evidence I see no reason not to accept) understood the substance of his instructions to be that both parties wished to take the steps necessary to render their partnership (or joint venture) compliant for GST purposes. 118 Mr Gillon understood, from his conversation with the two parties, that whatever comedy act they were involved in had gone on for about a year and that they were continuing in that act (hence the need to register it for GST purposes). His recollection is that they described themselves as "partners". Whether, by so doing, they were intending the legal meaning of the term or were using that expression in a more colloquial sense (the word "partner" now, appropriately or otherwise, being used in day-to-day parlance with a variety of connotations) is another matter. 119 The significance which it seems to me should be drawn from this evidence is that, whether or not Mr Avati or Mr Bova used the word "partners", something must have been said on this occasion to give rise to an understanding on Mr Gillon's part that the appropriate application to be made was for a TFN for either a partnership or joint venture; and Mr Avati cannot have said anything to disabuse Mr Gillon of that understanding. Had Mr Avati said "No, he's my employee", for example, the steps next taken by Mr Gillon would have made no sense. 120 Mr Avati says he was not paying much attention during this discussion as he had decided, or was starting to form the view, that he did not wish to have anything further to do with Mr Bova (T 311.42). Mr Avati accepts that he did not tell Mr Bova of his decision at that time (perhaps because Mr Avati was under the impression he had agreed to a 12 month trial period for their working relationship, whatever the nature of that relationship might have been). However, whatever the reason for his reticence with Mr Bova, Mr Avati cannot have indicated anything to suggest to Mr Gillon that he did not intend to continue to work jointly with Mr Bova in some form of association, since Mr Gillon then proceeded, on his understanding of the pair's joint instructions, to lodge at least the application for an ABN for the two and prepared (though no signed copy of this was in evidence) a TFN application for a partnership/joint venture in which both were identified as partners. 121 That, however, does not lead me to conclude that what happened amounted to any form of admission by Mr Avati that there was at that time (whether March or May 2000) a partnership between the two. The term "partner" could easily have been used in a loose sense to describe the fact that they had been working or collaborating together in the show, in the context of an intention as at that time to take the formal steps to put their relationship on an established footing. 122 (I have considered whether there might have been some potential significance if the meeting had taken place after the events in April 2000 outlined below, ie if it could be said that, Mr Avati having raised concerns about their working relationship in April 2000, this was an indication that Mr Avati had thereafter decided to confirm or continue on with an existing partnership relationship. However, by reference to the date on the TFN application, I think it most likely that the meeting was late March, so this issue does not arise.) 123 In passing, I also note that Mr Avati's stated belief that there was a 12 month trial period could well explain the fact that he said nothing in March or April 2000 as to an intention to bring the relationship to an end; ie if he considered that there was an arrangement in place at least until the end of June 2000 then he may not have felt able to terminate it earlier. Mr Avati's evidence was that he was not content with what Mr Bova was doing and he was looking for a way to restructure their working arrangements for the balance of the "trial period", so as to give Mr Bova an "incentive to work" (T 311). He says at that time (around March to May 2000 when the communications with the parties' respective accountants were taking place) he had not yet decided not to do the national tour with Mr Bova, but he was (at least) forming the view that he did not want to do any further projects after that with Mr Bova (T 310). 124 In that light, the fax to Mr Cassim (Ex K) which was sent in May 2000 (and which I consider below) can be read consistently with the discussions with Mr Gillon. An incentive to put Mr Bova on a percentage profit split (and an enquiry as to what would be a fair percentage split) makes sense only if no profit split for the national tour at that stage had been agreed, but a joint national tour was still under consideration. · April 2000 125 Matters seem to have started to come to a head in April 2000. Mr Avati says that he had a meeting with Mr Bova on 10 April 2000 (paragraphs 237ff Mr Avati's 12 June 2007 affidavit). Mr Bova denies that meeting. However, it seems that around that time Mr Avati was concerned that Mr Bova was not "pulling his weight". Mr Avati says that he made some handwritten notes (at or prior to this meeting) (Ex GA – 1 to Mr Avati's affidavit pp 419-426 Bundle 1B) and he prepared some typewritten minutes of the meeting (Ex GA- 1, P 429 Bundle 1B). Mr Bova says he was not given a copy either of those notes or minutes. However, there is nothing on their face to suggest the documents were not created in April 2000, when Mr Avati says they were and they are consistent with Mr Avati's preparation, around that time, of the work summary (or job list) which Mr Bova does accept was given to him on his return from Italy in May 2000. 126 Mr Avati's handwritten notes (apparently jotted down, as were his ideas for jokes, on whatever paper was readily to hand – in this instance, Kwik Kopy paper) contain the headings "Social" and "Business" and appear to list various concerns or comments which Mr Avati had on those aspects of his relationship with Mr Bova. Under the heading "Business" were two sub-headings, the second "Workload" containing the following notes (with my emphasis): · I suggest a percentage split to cover all workload as opposed to salary weekly - different work modes · It will facilitate other separate venture · define roles · suggest jobs PTO… 127 On the next page (p 421 Bundle 1B) are two columns apparently setting out an allocation of roles as between Mr Bova (including "General Managing Duties", "Sponsors", "Technical" and "CD") and Mr Avati ("Performing, Writing, Marketing, Promoting, Publicity, Running Business – Accounts, CD Distribution, Corporate Show – Projecting, Portfolio, Tours, Support Act, Negotiations, Website and Fan Club"). Later in the notes, Mr Avati wrote, "Determine percentage rate on workload. Other projects". The last numbered item noted (with no content or explanation) was "9. Future". 128 Mr Avati's typewritten minutes, which he says he prepared after the 10 April meeting (p 429 Bundle 1B), record the following, consistent with the comment he had noted in preparation for the meeting, "I suggest a percentage split of tour and CD revenues to cater for different workloads in relation to other work business (E.G. Italy, America Etc)". The reference to Italy/America can only be a reference to Mr Bova's business trips overseas, which apparently took place on a not infrequent basis, since there is no suggestion that Mr Avati had any other overseas "work experience" at that stage. 129 While Mr Bova denies the meeting and denies having seen either the handwritten notes (and there is nothing on their face to suggest that the notes were more than an aide memoire for Mr Avati in preparation for a discussion with Mr Bova or perhaps jotting down his thoughts on the matter at around the time of a conversation with Mr Bova) or the typed minutes, those documents (created at a time when there was no dispute as to the characterisation of the pair's working relationship) support Mr Avati's evidence that by at least mid 2000 he had concerns about Mr Bova's performance and, more relevantly perhaps, that he was considering a different arrangement (if any) to be agreed if, going forward, they were to work together on the national tour or otherwise. Moreover, Mr Bova himself appears to have recognised an imbalance in their contribution to their working relationship in that he says that around this time he offered to "pay" (and says he later did) an amount to Mr Avati to reflect his overseas absences, something which is consistent with a finding that, at least as at early to mid 2000, there was a recognition on the part of both Mr Bova and Mr Avati that their respective contributions to the working relationship were unequal and that Mr Avati was unhappy about this - (see paragraphs 79/80 Bova affidavit 28 February 2006). 130 I accept that Mr Avati had genuine concerns as to his social/working relationship with Mr Bova during the early part of 2000 and that he communicated those concerns at some point to Mr Bova. Mr Bova observed, in a facsimile transmission to Mr Gillon around May 2000 (set out later in these reasons), that "joe is fretting" (p 220 Bova documents). It is unlikely that Mr Avati was fretting about any delay in obtaining an ABN or TFN registration (which seems to have been all that Mr Avati could have understood Mr Gillon to be attending to at that stage), since Mr Avati seems to have shown little interest in or understanding of the actual structure or operation of his business affairs at this or any other time, apparently being content to leave this to his accountants/advisers. 131 Furthermore, whether or not Mr Avati's concerns were communicated to Mr Bova in the form set out in the notes, the existence of concerns of this kind casts real doubt in my mind on the proposition that the purpose of the termination, shortly thereafter, of the working relationship between Mr Bova and Mr Avati was to facilitate a diversion or usurpation by Mr Avati of "partnership" profits. It seems to me far more likely that Mr Avati had formed the view that he did not wish to continue to work with Mr Bova for reasons quite unconnected to any moneys which might otherwise have become payable to him. (Indeed, Mr Avati seems to have had a rather laissez-faire attitude to the moneys being derived from the shows, largely treating them as a pool of funds for ongoing expenses or the like, without seemingly giving much thought to how they should be accounted for or what they represented. Accordingly, the suggestion that he brought the relationship to an end so as to keep for himself all the future profits seems to me unlikely.) 132 Any joint venture or partnership which had come into existence (subject to the significance of any agreed trial period) was one which it must have been open to either party to terminate at will or at the very least on reasonable notice (there being no notice period otherwise agreed). 133 (It is noted in Lindley & Banks that there is no duty on a partner to act reasonably in deciding whether to serve a dissolution notice (though suggesting that a notice served with fraudulent intent or mala fide and for an improper purpose will not be upheld), citing Neilson v Mossend Iron Co (1886) 11 AC 298 and Russell v Russell (1880) 14 Ch D 471. In the latter, Jessel MR appeared to draw a distinction between the capricious or mala fides exercise by partners in a partnership of a power to expel one of a number of partners from the case in which there is a single partner who might be able to exercise the power of termination capriciously. I refer also to the discussion by Brereton J in Lawfund in this regard.) 134 I note that on 21 November 2008 Mr Russell confirmed (T 4) that there was no allegation made that the termination of the alleged partnership was itself a breach of fiduciary duty but it was said that Mr Avati's purpose in terminating the arrangement was one of the circumstances to be taken into account when determining whether or not the conduct pleaded was a breach of fiduciary duty. 135 The existence of concerns as to whether Mr Bova was pulling his weight (whether justified on the facts or otherwise) would surely have provided a basis on which Mr Avati could legitimately have decided not to continue the relationship (and the only question then would have been what restrictions there may have been on the use which could be made of any property or opportunities which had come into existence in the course of the relationship). 136 On about 20 April 2000, Mr Avati moved out of the Balmain Cove residence. He and his girlfriend (who he said had prepared or kept his accounting records at that time and with whom he says Mr Bova had argued) moved into an apartment together. Mr Bova was away at the time. He says that when he returned he found that Mr Avati had removed, among other things, computers which contained records of the receipts/expenses or revenue of the shows (though conceding, in the witness box, that the computers taken by Mr Avati were computers which Mr Avati already had when he moved in or had personally acquired thereafter) and mailing lists created during the course of the shows (use of which was, according to Ms Maggio's evidence, made later by Mr Avati). 137 At or about the same time, a Statement of Change of Persons in respect of LEM (Ex D Vol 2, p 731) was signed. It is not clear whether this was in recognition of the status quo (namely that they had been carrying on business together under that name and, if so, what business and whether or not in partnership together) or whether this was a step being put in place for what was to take place in relation either to the national tour (or other proposed joint undertakings between them). · Commencement of national tour 138 In late April 2000, Mr Avati commenced the national tour (referred to also as the "Lock Up Your Nonna" tour), performing a show which Mr Bova contends was a performance of the show recorded on the "Livin' La Dole-Cheque Vita" CD (described in Ex 1 as the "TDCVS tour"), but which Mr Avati contends was a show similar to that performed at the Enmore Theatre in November 1999 and including material he had written since 1997. (As I understand it, Mr Avati's comedy show involves a combination of skits which may vary from time to time (any one show not being identical in content or format to another), although generally following a similar formula and derived from material developed by Mr Avati over the years.) Mr Avati did say that once he released a new CD his practice was not to perform the routines from his earlier CDs other than occasional 'crowd favourites' (and Mr Bova's account of a conversation with Mr Avati, in which he says the idea of a second CD was raised, supports Mr Avati's assertion that once a CD was released he did not generally perform his older routines). This is of relevance insofar as it suggests that, as the Livin' La Dole-Cheque Vita CD had been released in late 1999, the comedic material for his national tour would be likely to have differed both from the CD and from the Parramatta Riverside Theatre shows from which it had been produced. 139 As at 25 April 2000, a number of regional and other venues had been booked, and tickets sold, for the Lock Up Your Nonna shows through to 8 July 2000. (Mr Avati's evidence in the witness box was that as at 13 July 2000 there were about three months' bookings – T 390.) · May 2000 – Mr Avati's communication with his accountant 140 On 16 May 2000 a letter (dated 18 April 2000) was sent by Mr Bova to his accountant (Mr Cassim) by facsimile transmission (and re-sent, apparently due to transmission problems, on 17 May 2000). There is no explanation for the delay (from April to May) in sending this letter, if that be the case, or otherwise as to the error in its date. Various copies of the letter were in evidence: one, with a fax header recording transmission on 16 May 2000 at 5.50 pm from "Aussie Fresh" (where Mr Avati's girlfriend worked), being Ex U, and another (Ex K) with a fax header recording transmission on 17 May 2000 at 1.39pm (though page 2 of the facsimile notes transmission at 1.28 pm) from SUBC. Some of the pages on the 16 May 2000 transmission may not have been received, necessitating their re-transmission as the fax headers variously show pages 1/1, 1/2, 2/2 or simply P.1, with a variety of times, whereas the cover page indicates that what is being send is a four page document including the coversheet. It would seem that the most likely explanation was a problem in transmission on 16 May 2000 and that what was intended to be, and presumably ultimately, transmitted was the coversheet containing the letter from Mr Avati to Mr Cassim, a two page "Work Summary" and a one page tour schedule. (Exhibit U is the copy produced on subpoena by Mr Cassim's firm. It does not have the tour schedule attached.) 141 The cover page of the facsimile transmission is on letterhead titled "LOOKOUT ENTERTAINMENT MANAGEMENT for JOE AVATI MANAGEMENT". As noted above, the typewritten date was 18/4/00 (though the fax imprint shows it was sent on 16, or 17, May 2000 as the case may be). There is no suggestion that it was in fact sent earlier than 16 May 2000. In the "from" field appear the typed words: "Lookout Entertainment Management". In the "subject" field appear the typed words: "Re JOE AVATI Shows. 142 The text read: Dear Jim, As per our discussion please find as follows all the information for the tour. The name for the business is The Comedy Corner Pty Ltd Can you please contact me in regards to what you think should be a fair percentage split based on the workload. Keeping in mind that the figures do not include CD Sales or Merchandise Sales, I would estimate approx another $100K. Please Note I am only contactable on my mobile – … Thank you Joe Avati. 143 The next page was headed "Work Summary" and seems to have been a copy of a document which Mr Bova concedes was provided to him in about April 2000. That work summary refers, under the "Task" heading, to "New CD" and "New Show" as well as "Touring" and typed at the bottom in different font are the words "Joe Avati and Carlo Bova". 144 Emphasis was placed by Mr Sirtes on the fact that the allocation of writing responsibility was made in this document to Mr Avati alone yet there was no suggestion that Mr Bova had remonstrated with Mr Avati as to the fact that his workload did not encompass recognition for any input by him into the writing of the comedy routines. (Mr Bova says, in para 81 of his 28 February 2006 affidavit, that the exhibit was not reflective of their roles yet does not seem to have raised this with Mr Avati.) I consider that the lack of any apparent objection at the time to this workload allocation permits an inference to be drawn (consistent with the lack of evidence as to any substantive input into script writing or the like) that Mr Bova accepted or understood his role not to encompass the creative writing of the shows. 145 Mr Sirtes further submits that the disproportionate allocation of tasks to Mr Avati, contemplated in the Work Summary in Ex K, was inconsistent with any concept of a partnership. I have more difficulty with that proposition since it seems to me that there may be many partnerships where an unequal or quantitatively different contribution between partners is contemplated or at least permissible. 146 In the witness box, Mr Cassim identified his handwriting on parts of Ex U. In particular, on that copy, the words "CD Sales" and "Merchandise Sales" are circled and there is an arrow pointing to them with the figures "50/50". Those figures (together with the figure "$975" with an arrow pointing to the company name) are identified as being in Mr Cassim's handwriting (T 437.47). 147 Mr Russell says the proper inference to be drawn from that notation is that Mr Avati told Mr Cassim that there was a 50/50 split in relation to CDs and merchandise sales. While Mr Cassim could not recall the conversation which followed (or perhaps preceded) that written communication, he accepted in the witness box that he might have been told by Mr Avati that that was the split he was on with Mr Bova in relation to CDs and merchandise sales (T 488.10-.25). Mr Avati, when taken to this document, was asked whether he had ever told his accountant that the CD or merchandise sales were on a 50/50 split. His answer was, "I do not recall ever saying that to my accountant". When asked if he might have, he answered, "I doubt it" in a dismissive or disbelieving tone which struck me as indicating that this was regarded by Mr Avati as something which was highly unlikely (not as conceding that it was a real possibility, as the words read as they appear starkly on the page of transcript might have suggested). 148 As to the figure of $975, Mr Cassim thought that this could have been the establishment costs at that time for the company proposed to be incorporated. Given that, at that stage (ie May 2000), the national tour had only just commenced it might be difficult to see how that figure could have represented any estimate of tour profits or the like (although it is close to the turnover figures estimated by Mr Cassim at the end of that year – Ex M), which seems to be the only other possibility. 149 A number of comments may be made about this communication. 150 First, there is no entity or business name, as far as the evidence discloses, known as "Joe Avati Management" so this is another example, it would seem, of nomenclature being used for publicity value and without substance (thus weakening the inference that might otherwise be drawn from the words "Lookout Entertainment Management for"). 151 Secondly, the attached "work summary" seems to be provided either as part of "all the information for the tour" or (which is perhaps more likely), as indicating the workload by which reference is to be made when forming a view as to "fair percentage split". MFI 2 (which became part of Ex K) is a document headed "Joe Avati Tour Schedule" – "The Lock Up Your Nonna Tour – UPDATE 25/4/2000", which (if the fourth page of the stated four page fax) would fit the description "information for the tour". 152 Thirdly, the fact that Mr Avati was seeking advice from his accountant as to what would be a fair percentage split (which seems to be looking at a split prospectively) is consistent with there being no agreement for a percentage split (of profits) at that stage in relation to the tour at least. If there were already an agreed percentage split for profits generated from comedy shows in which Mr Avati was performing, then the only reason to ask the accountant's opinion as to what would be fair in that regard would be if Mr Avati (armed with that information) was seeking to change the earlier or existing agreed arrangement and to put in place new arrangements going forward. While that may be the case, what this communication indicates to my mind is that Mr Avati considered there was a need to determine the basis on which the two parties were to work together during the national tour and his view that (consistent with his notes of the discussion he says he had with Mr Bova in April 2000) there should be an agreed profit percentage to reflect the parties' respective workloads. 153 Fourthly, as at that stage (May 2000) Mr Avati still appears to be contemplating the involvement of Mr Bova in the national tour shows (at a stage when he knows that there are bookings through to July 2000). There is no suggestion from this communication of any intention on the part of Mr Avati to usurp any profits to which Mr Bova might then have been or might become entitled under any existing arrangements with him. Rather, the focus of the communication seems to be to find a fair basis on which the parties could work together going forward. While perhaps not of much weight, this does suggest to me that Mr Avati was working on the basis of a belief that any arrangements for the national tour still had to be finalised (and perhaps with a view to what Mr Avati considered as the 12 month trial arrangement coming to an end in June 2000). 154 Fifthly, as to the meaning of "50/50", it seems to me this is equally consistent with Mr Cassim having been told 50/50 was the arrangement then in operation for the split of profits on CD/merchandise sales (inconsistent with those forming part of the so-called "partnership" property) and with Mr Cassim or perhaps Mr Avati suggesting that a 50/50 split on CD/merchandise would be "fair" but that a different split of profits should apply to tour revenues. 155 Finally, insofar as Mr Russell sought to draw an inference from the statement that Mr Avati was contactable only on his mobile (perhaps that Mr Avati was trying to exclude Mr Bova from discussions or was making these enquiries behind his back), I think nothing can be drawn from that. By reference to the attached tour schedule, it would appear that Mr Avati would have been en route between Mildura and Leeton as at 16/17 May 2000 (unless he had returned to Sydney between the Mildura show on 14 May and the Leeton show on 19 May), which was the explanation ultimately proffered by Mr Avati for this statement. In any event, Mr Cassim was Mr Avati's accountant. There is no suggestion that Mr Bova would have expected to be involved in discussions with him and Mr Bova had apparently raised no concerns as to the fact that Mr Avati had sought separate accountancy advice in late 1999. 156 What seems to me more noteworthy in respect of this entry is that, when questioned about it, Mr Avati's first response was to give a fairly dogmatic answer by reference to the fact that he was moving out of the Balmain Cove residence on or about 18 April 2000 and thus would only have been contactable by mobile – an answer which can have been no more than reconstruction or assumption based on the typed date appearing on the coversheet. When taken to the evidence that the facsimile had not been sent until 16 May 2000, Mr Avati conceded that his initial explanation must have been wrong. This seems to me to be indicative of Mr Avati (just as I think Mr Bova himself did) having a tendency to present as his recollection a reconstruction of events based on the documents put before him (something not uncommon and no doubt understandable given the passage of time but something which means caution should be exercised in accepting the reliability of either party's present stated recollection of events). · May 2000 – Mr Bova's communication with Mr Gillon (his accountant) 157 In about May 2000 (after Mr Bova's return from Italy – para 214 of his 6 November 2008 affidavit) Mr Bova forwarded to his accountant, Mr Gillon, a facsimile transmission headed "Lookout Entertainment Conditions" (Ex CB42 to Mr Bova's affidavit). 158 As it is a significant document, in my view, I reproduce the text in full: Paul Gillon From Carlo Bova Lookout Entertainment Conditions : Please note the following as it stands today with Joe Avati : CD was produced on a 50% split. As Joe's Manager I receive 20% of any Bookings. Show Dole-Cheque Vita was financed by me, and through sponsors on a 50% share of profits. Attached Sheet [the Work summary which was attached to Ex K/U] is what our roles will be in the future after the tour. Please try and put some percentage of net or gross should Joe get for the admin and accounts, eg he handled the calls and nego's for last weekend's bookings that grossed $12,000.00 He has been advised to set up a company, please advise. Joe's accountant's name Jim Cassim. Please call me today as joe's fretting. Regards Carlo Bova. (my emphasis) 159 Following this was the work summary attached to Exhibits K and U and the Tour schedule showing bookings from 28/4/00 to 8/7/00 (MFI 2 and part of Ex K), thus confirming that those documents had been provided to Mr Bova on or after 25 April 2000 (the date ascribed to the tour schedule update on the dace of that document). 160 It is submitted by Mr Sirtes that in this document Mr Bova recorded Mr Avati's desire to change Mr Bova's remuneration structure from a salary-based remuneration to a percentage based remuneration (inconsistent with the suggestion that there was any previous entitlement to a share of profits). Mr Bova's letter is said to be completely inconsistent with Mr Bova's case in that he described himself as "Joe's Manager" (not his partner, though it may be that this description was limited to his role in relation to private bookings). It is submitted that the premise of the facsimile transmission (a change in Mr Bova's remuneration) would have been unnecessary (and repugnant to the concept of partnership) had there already been a partnership agreement under which Mr Bova was entitled to 50% of the overall net income. (A desire by one partner to change the partnership arrangements would not, of itself, be repugnant to the concept of partnership – by this submission I assume Mr Sirtes refers to the lack of any apparent objection or demur by Mr Bova as to Mr Avati's ability unilaterally to change the financial arrangements.) 161 Perhaps more significantly, the description by Mr Bova of his role in the show "Dole Cheque Vita" (by which he must mean the Parramatta Riverside Theatre shows) was that it was "financed" by him and through sponsors on a 50% share of profits. 162 Mr Bova's acknowledgment, in that facsimile transmission, that Mr Avati had been "advised to set up a company" is said by Mr Sirtes not only to amount to a recognition that this was a company that Mr Avati was setting up by himself, to the exclusion of Mr Bova (an inference which I think can reasonably be drawn from the statement), but also that Mr Avati had obtained his own separate accountancy advice (which by then of course he had, from Mr Cassim). It is said that this is something inconsistent with a partnership. Again, I am not persuaded that such a conclusion follows simply from the fact that Mr Avati was proposing to set up a corporate vehicle; it may equally be that he had been advised that whatever interest he held in the partnership should be transferred to and held by a proprietary company for the future, for example. 163 Relevantly, however, the words "as it stands today" [with Mr Avati] suggest to me that there was some fluidity as to Mr Avati's position in respect to their working arrangements, as recognised by Mr Bova. That would suggest (particularly given that there was no apparent complaint that this involved any change in the existing position) that what was occurring at this time was a process of discussion or negotiation between the parties as to what were to be the nature of the arrangements between them for or in the light of the forthcoming national tour. This supports the conclusion that (whatever may have been the case in relation to the initial collaboration with the Parramatta Riverside Theatre shows), the parties did not understand that (absent further agreement on both their parts) any existing arrangements would apply to future comedy ventures (including, it would seem, the proposed national tour). 164 Mr Bova's communication to his accountant certainly does not suggest that there was any objection on his part to the formulation (or reformulation) of his business arrangements with Mr Avati, including addressing what arrangements were to apply to the Livin' La Dole-Cheque Vita CD. Mr Bova seems to have acknowledged that "some percentage" should apply to the administration and accounting performed by Mr Avati in relation to the shows; he describes himself as a manager; he describes his role as having "financed" the "Dole-Cheque Vita" show for a 50% share of profits and he treats the Livin' La Dole-Cheque Vita CD as being in a separate category to the show profits. While Mr Bova seems to contemplate that the respective roles were to be changed "after the tour", Mr Avati's communication with his own accountant at about that time contemplated that this was to be the information "for the tour" and hence there may well have been some misunderstanding between Mr Bova and Mr Avati as to what was being discussed – whether that be the arrangements for the tour or thereafter. Of course, to the extent that they were not ad idem on this, it cannot be said there was an agreement in place at that stage in relation to the national tour unless the mid 1999 arrangements extended to cover this particular venture. · Incorporation of The Comedy Corner Pty Limited 165 On 17 May 2000, Mr Avati incorporated a company known as The Comedy Corner Pty Limited ACN 092 895 602 ("Comedy Corner"). Ultimately (and I use that word advisedly given that by reference to Ex P, the documentation in this regard seems not to have been executed until 2002), Mr Avati entered into an employment contract with Comedy Corner and a Deed of Assignment by which he assigned copyright in the Joe Avati performances to Comedy Corner. Exhibit Q is a copy of an employment contract dated 17 May 2000 between Mr Avati and Comedy Corner, pursuant to which Mr Avati was paid an (initial) annual wage of $50,000. · June/July 2000 166 Mr Bova says that, in June 2000, he and Mr Avati discussed the production of a second CD to be called "Live & Unpluggato" and Mr Bova says that he recorded one of Mr Avati's shows prior to July 2000 for the purposes of producing that CD. (I note, however, that Mr Bova's evidence was that he taped various of Mr Avati's shows so that they could review the performances and improve upon them, so it may be that even had Mr Avati been aware that the show was being recorded he did not know Mr Bova was intending it for this performance.) 167 The "Work Summary" (attached to Ex K) certainly contemplates that there would be a new CD at some stage. However, it does not seem that there was any work directed to this in any collaborative way prior to the termination of the parties' working relationship and it is not suggested that that "master tape" was used in the ultimate recording of the Live & Unpluggato CD. (According to Mr Avati, the actual recording that was used for this CD was a recording made in Melbourne on 13 August 2000 (see T 477). Mr Avati gave evidence that he arranged, in August 2000, for a friend of his (working for Dex Audio) to record three shows of his in Melbourne (part of his national tour) from which the live album was created.) 168 In those circumstances, even assuming a partnership of the kind contended for by Mr Bova, I find it hard to see that this CD represented the outworkings of any maturing or developing business opportunity as at 13 July 2000 so as to give Mr Bova any claim in relation thereto. I discuss this in more detail later in these reasons. For present purposes, I simply note that the "Live & Unpluggato" CD was released in November 2000. Ex H is a copy of the "Live & Unpluggato" CD. In the CD insert there is again a list of people or organisations to whom thanks is given by Mr Avati (this time not including the gang at DMG). The CD sleeve insert notes that "All material originated by Joe Avati except for interpretation of various Calabrese and Italian Dialects from English by Joe Avati". "Joe Avati Representation" is this time said to be "The Comedy Corner Management" and the CD produced by "Corner Entertainment". There is no reference to Mr Bova. 169 Some time around July 2000, the Te Nonna t-shirt was produced. In paragraph 86 of his 28 February 2006 affidavit, Mr Bova asserts that he arranged for the t-shirt to be produced and that the photograph depicts a stance used in "The Show", which was developed in the course of collaboration between himself and Mr Avati. He says that the t-shirts were received by him in about early July 2000 but had not been offered to sale prior to 13 July 2000. Mr Avati seems to agree that Mr Bova arranged for the printing of the t-shirts but says that Mr Bova did so on his instruction and that it was his own idea (paragraph 305, Mr Avati's affidavit). Mr Avati says that the sale of the Te Nonna t-shirts effectively ceased around November 2000. (He estimates that some were given away for promotions and that there are somewhere between 30-50 left out of the original 500 produced – T 406; cf the response contained in his answer to the request for particulars contained in Annexure B to his 24 March 2009 affidavit.) Neither party seems to suggest that the production of the Te Nonna t-shirts was the subject of much discussion. 170 In June/July 2000, payment of sums totalling somewhere in the order of $80,000 was made by Mr Avati to Mr Bova or his company, DMG. (Although Mr Avati's affidavit deposes to amounts totalling $98,155, at the commencement of the hearing he corrected that figure, conceding that an amount of $18,370 to which he had deposed in paragraph 274(a) of his affidavit had been included in error.) Mr Avati says these payments were made for "wages" (and reimbursement of meal or other expenses), which he had calculated were owing to Mr Bova, and that when the payments were tendered he had conversations with Mr Bova in which he said words to that effect. (Mr Bova denies this and, for my part, it is hard not to see Mr Avati's "calculations" as a reconstruction of events after the fact, particularly in light of the formulaic nature of the alleged conversations in which he tendered the payments and the lack of any objective basis on which he seems to have calculated the meal or expense reimbursements.) Mr Bova nevertheless seems to accept that the payments received by him or by DMG up to July 2000 satisfied any claim to a share of profits up until that time (T 45). 171 On 13 July 2000, the business relationship between the parties (be that a partnership, as Mr Bova asserts, or a management agreement or retainer, as Mr Avati asserts) was terminated by Mr Avati, in a meeting at a café attended by Mr Avati's father. In Ex 1, Mr Bova (tellingly, in Mr Sirtes' submission) described this event as a "dismissal" from "managerial duties" (T 105.05-23). · Subsequent events 172 Mr Bova commenced these proceedings in August 2001. Somewhere about July/September 2001 Mr Avati says he had discussions with various tax planners (T 404), following which certain companies were incorporated in the UK and in Jersey. Mr Avati says he ceased to be a director of Comedy Corner around about September 2001, just before he went to Canada (T 401). Mr Avati says he was advised by a tax or financial consultant (Mr Jas Sekhon) to give up his directorship in the company and that he gave up his shareholding at the same time. He says that it was as part of his overall tax planning he gave up his residency in Australia, by which I understand him to mean that he moved overseas to live at that time (T 401). 173 In about February 2002 it seems that Mr Avati executed the documents (dated 17 May 2000) by which copyright was assigned by him to Comedy Corner. A series of corporate entities then became involved in different aspects of what might be described as the production or management of Mr Avati's comedy shows/business interests; set up (according to Mr Avati) following advice from Mr Sekhon, who did not give evidence in the proceedings. 174 The evidence in this regard was convoluted, to say the least, and emerged piecemeal during the course of careful cross-examination by Mr Russell. As far as I understand it, the position after May 2000 in relation to the management of Mr Avati's affairs (by and large emerging from Mr Avati's cross-examination and without the assistance of much in the way of objective documentation) is as follows: (i) in May 2000, Comedy Corner (the Australian company) was established; (ii) from at least July 2000 until about July 2001, Comedy Corner was responsible for managing Mr Avati's comedy performances in Australia (T 410) and it was Comedy Corner which obtained the revenue from sales in Australia of the CDs/merchandise (T 406); (iii) according to the Deed of Assignment dated 17 May 2000 (which seemingly was neither prepared nor signed until about February 2002 having regard to Ex P), Mr Avati assigned copyright in the Livin' La Dole-Cheque Vita CD to Comedy Corner in May 2000; in cross-examination Mr Avati says he did so in 2001 (T 413); (iv) Comedy Corner earned no moneys at any time from overseas CD sales (T 407); (v) in August 2001, these proceedings were commenced; (vi) in September 2001, Mr Avati ceased to be a director of Comedy Corner and at some point gave up his shareholding in the company; (vii) at some time in 2001 or 2002, two overseas corporate entities were incorporated – Comedy Corner UK Pty Limited (in England) ("Comedy Corner UK") and Comedy Corner Limited (based in Jersey) ("Comedy Corner Jersey") (T 412/413); the Jersey entity apparently being the first to be established; (viii) it is not clear precisely what differentiation there was, or was thought to be, in the roles of Comedy Corner UK and Comedy Corner Jersey. Mr Avati says that Comedy Corner UK was set up as part of the overall tax planning for his "worldwide dealings" and that it was the (presumably corporate) trustee of a trust known as the Platinum Trust. Mr Avati said that he was a beneficiary of the Platinum Trust (T 429), (but admitted that he did not know really what a trust was). At T 429, Mr Avati said the Warren Trustees controlled Comedy Corner Jersey. By the "Warren Trustees" (T 413; T 429) it seems Mr Avati might have meant a Mr Paul Jackson and Mr Alan Evans. Those persons were described by Mr Avati in the witness box as being the trustees of Comedy Corner in Jersey and the UK (T 409), by which he may have meant that they were the directors of Comedy Corner UK (which was itself, perhaps, a trustee of the Jersey entity) (T 409), though this was by no means clear. (From the way in which Mr Avati expressed disbelief at the suggestion that he might be a beneficiary of the Warren Trust, it seemed to me that the Warren Trust or Trustees might have been involved in similarly overseeing the management/administration of other artists or companies as well.) (The confusion is illustrated in the following responses by Mr Avati: Q. … you say that after 2001 they were sold by Comedy Corner UK. That is not true, is it? A. What was sold? Q. Live and Unpluggato? A. The entity overseas sold it, the Comedy Corner UK. Q. I thought you made a distinction between Comedy Corner Limited and Comedy Corner UK? A. Yep. Q. I thought you had given evidence before and today that it was the Comedy Corner Limited who was selling the Live and Unpluggato CD? A. Yes. Q. Is that so? When I say that Comedy Corner UK referred to in 5B, that is incorrect? A. That could be incorrect. It should have been Comedy Corner Limited. Q. What did Comedy Corner UK do? A. Comedy Corner UK was set up by Mr Jay Secombe [I understand this to be a reference to Mr Sekhon] once he had reviewed the structure that he had set up and he felt that a UK entity needed to be put into place. [It is this answer which suggests that the Jersey entity may have been the first to be established.] Q. For what purpose? You already had Comedy Corner Limited? A. He reviewed his strategy and reviewed the laws and he made that suggestion to me.) (ix) whatever the roles of the two overseas entities, it seems that in either 2001, or perhaps more likely in 2002, copyright in the works of Mr Avati (but not, he suggested, the right to sell CDs – T 425) was assigned from Comedy Corner to Comedy Corner Jersey (T 413); (This assignment seems to have been effected by a Deed of Assignment of Copyright, a copy of which is Ex O, from Comedy Corner to Comedy Corner Jersey. This Deed, which is dated, variously, both 7 September 2001 and 6 September 2002, recites the earlier assignment Deed purportedly of 17 May 2000 and records the assignment of all rights in the "Avati material" to Comedy Corner Jersey for five years, with a royalty payable if Mr Avati performed in Australia and a right, which I am told was not exercised, to extend for a further five years); (x) Mr Avati seemed to suggest in the witness box that the moneys from overseas CD sales were received by Comedy Corner Jersey (not Comedy Corner UK) for the period from about 2001/02 until about 2006 (T 473); (xi) meanwhile, in Australia, in about 2003/2004 Mr Avati's uncle (Mr John Suraci) incorporated a company "ShowUs Entertainment Pty Limited", which Mr Avati says was then responsible for the sale in Australia of CDs (and presumably any other merchandise, although the sale of the Te Nonna t-shirts may have ceased by November 2000). (It is not clear who distributed or sold CDs in Australian between July 2001 and the incorporation in 2003/2004 of ShowUs Entertainment. Mr Avati, when asked whether there was any sale of CDs after 2002, said, "Yes, but like any other business, money goes in there, its all pooled into one business and then you use that money to pay your expenses, to put on other shows" (T 431). Nor is it clear how the right to sell CDs/merchandise in Australia passed to ShowUs Entertainment, at a time when Comedy Corner seems to have assigned all copyright in the Avati material to the Jersey entity, even if, as Mr Avati suggested, that assignment did not include CDs;) (I interpose to note that the current website (Ex R) describes ShowUs Entertainment Pty Limited as "worldwide merchandiser" and Mr Rino Salpietro, apparently a friend of Mr Avati, as "merchandising manager". Mr Anthony Avati is shown on the website as having responsibility for corporate sponsorship and the administration manager.) (xii) Mr Avati says that the sale of CDs in Canada/America was carried out through arrangements made by the UK/Jersey entities with distributors in the United States (reference was made to an entity called Fusion Free, which it was said had gone into bankruptcy, - T 444 – and, later, to Colossal Records, which was also said to be in financial difficulties – T 449, as being the US distributors); (xiii) Mr Avati seemed to suggest that prior to 2007 ShowUs Entertainment also was involved in distributing CDs to Canada (T 453). Mr Avati said that there was some distribution in North America/Canada from about 2007 by a company called Calabrese Productions Limited (T 453), owned by another friend of his, Mr Anthony Cianotti. (xiv) at some stage Mr Avati also seems to have made arrangements with a friend, Ms Maria Spano, to act as the local conduit for distribution of CDs in USA/Canada via his website sales. He says Ms Spano obtained CD stock after 2007 from Calabrese Productions (T 457); (xv) Mr Avati has since incorporated another company, Tillandsia Pty Limited, in Australia in 2006 or 2007. Mr Avati says this is now the only company with which he has any association and that Tillandsia is now responsible for his management both in Australia and worldwide (T 426); Mr Avati said that it was Tillandsia which now dealt with Colossal Records, but then added that Tillandsia had no (accounting) records and did not sell CDs anymore (T 454). 175 Mr Avati adamantly denied that he had received "one cent" from the sales of the CDs, whether personally, through any company or through any trust. 176 Mr Avati says that in 2005 (or early 2007) his overseas corporate affiliations came to an end and that "Anything that I was associated with anywhere in the world was closed". Mr Avati says he has not had contact with those formerly responsible for his affairs in the UK for a couple of years (T 409). In particular, Mr Avati says that Comedy Corner Jersey is no longer in existence (T 431): "what happened to it was that it was not necessary to have it in place any more. The whole reason why an entity like that would be set up would be to minimise tax. The turnover dropped dramatically after 2002, such that it dwindled away, such that it was not required. All that was left – there was money to pay its administration for another year. That was paid. There was no money. It was closed down". 177 In summary, Mr Avati was vague as to when he signed the Deeds which were dated on their face May 2000 (T 420); vague as to the consideration paid on the assignment of the copyright (T 421/422); had no idea how the copyright got back to him or Tillandsia after its assignment first to Comedy Corner and then to the Jersey entity (T 424); said on more than one occasion that Mr Sekhon was responsible for all that side of things (T 425) or for the tax advice (T 430; T 438); professed not to have worried about the copyright side of things "too much" "because as I said previously, the sales of those CDs was so negligible, virtually none were sold" (T 428); and disavowed any real involvement in the preparation of the accounting documents (he says in relation to Comedy Corner that he just gave all his bank statements, cheque books, invoices, receipt and so on to his accountant and left it to him to calculate the profit/loss). 178 The lack of interest shown by Mr Avati in these arrangements is frankly difficult to accept (even for a novice in the business world), particularly given that he entered into them after the commencement of the litigation and at a time which it must surely have been apparent that Mr Bova was asserting a claim to copyright or a share of profits in relation to aspects of his show/products and that this information would be highly relevant to such a claim. It seems rather surprising (and altruistic in the extreme) that, if Mr Avati's evidence in this regard is to be believed, he earns not one cent from the sale of his CDs, all those moneys going to companies in which he has no interest but in which other family members have or may have an association and that, for some time at least, his sole remuneration was apparently an annual wage of a relatively modest amount at a time when his career seems to have been flourishing. Determination of issues (i) Was there a partnership? · Indicia of partnership 179 The definition of partnership in s 1(1) of the Partnership Act 1982 (NSW) is the relation which exists between persons carrying on business in common with a view of profit. Section 2 of the Act sets out various rules to which regard shall be had in determining whether a partnership does or does not exist. Those include the rule that the sharing of gross returns does not of itself create a partnership (2(2)) and that the receipt by a person of a share of the profits of a business is prima facie evidence that the person is a partner in the business (2(3)). 180 The intention to make a profit is said to lie "at the very heart" of the partnership relationship, being "the grand characteristic of every partnership, and is the leading feature of nearly every definition of the term" (Lindley & Banks at [2-07]). 181 In determining the characterisation, as a matter of law, of the working relationship of the parties between mid 1999 and July 2000 (in the absence of any written agreement defining that relationship), the intention of the parties must be objectively ascertained from their words and conduct. In so doing, the description that the parties themselves have placed on their relationship is not conclusive (Adam v Newbigging (1888) 13 App Cas 308 at 316; Weiner v Harris [1910] 1 KB 285 at 290). (That must a fortiori be the case where, as here, there is little to suggest that the parties turned their minds at the outset of the documentation to the actual legal nature of their relationship.) What is important is the substance of the transaction (Canny Gabriel Castle Jackson Advertising Pty Limited v Volume Sales (Finance) (1974) 131 CLR 321 at 327). 182 Apart from the "grand characteristic" that there be an enterprise with a view to the sharing of profit (as opposed simply to the sharing of gross returns), various factors have been identified as relevant in cases such Canny, United Dominion Corporation Limited v Brian (1985) 157 CLR 1 and Industrial Equity Limited v Lyons (NSWSC unreported, Cohen J, 15 October 1991). Those factors include how the policy of the business undertaking or commercial enterprise was to be determined; whether there was property held jointly or on trust for the parties; and the contribution made by each of the parties to the responsibility and control of the undertaking. · Commercial venture 183 Clearly, as at April 1999 there was a business or commercial venture in contemplation by Mr Bova and Mr Avati, namely the production and performance in Sydney of a show by Mr Avati similar to that which had been performed by him in Melbourne. It seems there was also a discussion around this time as to the joint production of other comedians' acts (although on both accounts that does not seem to have been taken very far). Even if what became the Parramatta Riverside Theatre shows had been a one-off venture, it could still be regarded as a "business" for the purposes of the statutory definition of partnership. 184 There is also clear evidence of a joint enterprise or activity in which they were engaged. The LEM name (first used on promotional material for the show performed at the Melbourne Comedy Festival in the circumstances I have noted above) was used on flyers and other advertising material for (and indicating that LEM was the promoter of) the Parramatta Riverside Theatre shows in mid 1999 as well as on the tickets for those shows. 185 Indeed, Mr Russell placed weight on the many contexts in which the LEM name was used by the parties, including: · correspondence with the Parramatta Riverside Theatre under the LEM letterhead (Ex D, Vol IA, p 169; Vol 1B, p 173) noting that the Parramatta Riverside Theatre accounted by way of reconciliation statements to LEM for the monies made from the Parramatta shows as the promoter for the show (Ex D, Vol 2, p 669ff. T 276.49-277.5) (though those moneys seem to have been deposited into the SUBC account); · correspondence concerning advertising in the Telegraph (using the DMG account) for the Riverside show under LEM letterhead (Ex D, Vol 2, p 553); · as the promoter of Carnivale Comedy at the Enmore Theatre in September 1999 (Ex D, Vol IA, p 204); · as the promoter in the advertising for the Enmore Theatre show in November 1999 (Ex D Vol 2, p 564); · the statement made in the CD insert for the Livin' La Dole-cheque Vita CD that Mr Avati's representation was Lookout Entertainment Management: (Ex D, Vol 2, p 668) (and, I note, the CD cover contains a photograph of a show ticket on which the name LEM is clearly visible); · invoices for the sales of "Livin La Dole Cheque Vita" CD issued by LEM (Ex D, Vol 2, p 627ff, T 337.38-.43). 186 While some of the above might be explicable as "promotion" or "publicity" ("real estate" or branding on available space, as suggested by Mr Avati – T 338; T 381) (whether to enhance Mr Avati's image by making it appear he was professionally represented or to build up Mr Bova's business), not all of the above can be satisfactorily explained in that fashion. In particular, the fact that invoices/cheques were issued or written on the LEM account and the fact that third parties (the Parramatta Riverside Theatre for example) issued reconciliation statements to LEM seem to me to be strong indicators that Mr Bova and Mr Avati were together involved in a common enterprise, through LEM, of producing Mr Avati's shows. 187 Even more significant, in my view, is the fact Mr Bova and Mr Avati, trading as LEM, together executed a Performance Agreement with Crown Limited in January 2000 for the performance by Mr Avati of the show at Club Odeon on 19 January 2000 under which they agreed (seemingly jointly) to provide Mr Avati's services as performer. Mr Avati negotiated and signed that agreement (Ex D, Vol 4, p 1225ff). 188 Also, Mr Avati and Mr Bova together opened and operated an account in the name of LEM from about December 1999 in which income from some of the performances and CD sales was deposited and from which expenses (including rent for the Balmain Cove premises) were paid (Ex D, Vol 3, p 1150; Ex CB66 to Mr Bova's affidavit of 24 December 2008, to which I will refer simply as "Ex CB66"; Ex D, Vol 1B, pp 271ff). The explanation that this was just a vehicle to "park money" is not persuasive. Mr Avati already had his own SUBC account and, even if he were mistaken at first about the corporate status of LEM, that does not explain why he then continued to use that account. The "peace of mind" explanation also seems rather contrived in the absence of evidence that Mr Bova was raising any issue at that time about the delay in payment of any moneys owed to him. All Mr Bova's evidence suggests is that he wanted confirmation or reassurance that the profits would be shared at some time (and, presciently as it seems to have transpired, that Mr Avati would not go off and become a "big star" and forget all about him). 189 Mr Russell submitted that the conduct of the parties (in entering into contracts, issuing invoices in the name of LEM; incurring expenses, opening a bank account or writing all cheques in the name of LEM) went beyond mere "branding". I agree. I consider that there is ample evidence that there was a joint undertaking of some kind between the parties. · View of profit 190 Was the common enterprise one with a view of profit? An agreement to share profits and losses is seen as being generally of the essence of a partnership contract. Lindley & Banks notes Lord Lindley's explanation for this: Whatever difference of opinion there may be as to other matters, persons engaged in any trade, business, or adventure upon the terms of sharing the profit and losses arising therefrom, are necessarily to some extent partners in that trade, business or adventure. 191 Thus it is said that, subject to exceptional cases, persons who agree to share profits and losses will normally find themselves treated as partners (Lindley & Banks at [5-25]). Here, on both parties' evidence, Mr Bova seems to have agreed to bear (himself or through his company DMG or sponsors arranged by him) the expenses of the production up front, ie to "finance" the production until such time as it made a profit. The fact that he may have acted as a financier at the outset does not preclude a finding of partnership (IEL v Lyons). 192 Of course, even if the arrangement was that Mr Bova would receive a share of profits this will not necessarily be sufficient. (Mr Sirtes relies on Phillips-Higgins v Harper [1954] 1 QB 411 in this regard.) That said, I have real difficulty with the suggestion that Mr Bova was an "employee" of Mr Avati, as such, in the absence of any evidence (other than Mr Avati's assertion as pleaded) to indicate that an employment relationship was contemplated. 193 Where, as here, there is a clear conflict between the parties as to the basis on which one or both of the parties were to be remunerated out of the joint venture, regard obviously needs to be paid to what in fact happened. It is said for Mr Bova that the returns received in respect of Mr Avati's performances were shared by way of payment into and between various bank accounts of the parties and that there was a clear sharing of profits in respect of the Mr Avati's performances, particularly by reference to his calculation of the revenues from the Parramatta Riverside Theatre shows. 194 Mr Bova relies upon Ex CB66 for the contention that about half of the profits received from the Parramatta Riverside Theatre shows were paid to DMG. Ex CB66 contains an analysis (as it transpired, probably carried out by Mr Bova's solicitor – T 44) as to the funds deposited into these accounts over that period. From Mr Bova's evidence in the witness box, it seems clear that Ex CB66 was based largely on a reconciliation of receipts by reference to materials (such as cheque butts, invoices or the like) not all of which material is or may be before the court (T 42.50; T 43.07). 195 What is also clear is that Mr Bova made various assumptions about a number of the entries and that, perhaps not surprisingly, he has no clear recollection at this stage of the source of various of the deposits recorded in Ex CB66. Mr Bova was taken to a number of entries in Ex CB66, in respect of which he was unable to identify in the tender bundles the receipt to which amounts were referable (see T 28/29; 32/33 eg Ex 1B, p 1152, 1153). Mr Bova conceded he did not have all the invoices and had no independent recollection that particular invoices were referable to CD sales (see eg 4 February 2000 invoice) or otherwise. He said, "I have read so many documents in eight years. How am I supposed to remember one figure for $1,000?" (T 33). (Mr Avati, for his part, conceded he did not know the basis he had for denying that the profit from Parramatta Riverside Theatre shows was the amount ascribed by Mr Bova - $41,475.38 (T 295).) 196 Furthermore, there is no attempt in Ex CB66 to analyse the expenses over the relevant period. At T 26 Mr Bova said about Ex CB66 "I really didn't go writing down all expenses. That would've taken about three months. Just wanted to show that income received was basically equal". At T 42 Mr Bova accepted he had done purely a receipts driven exercise. Therefore, it is difficult to conclude, by reference to Ex CB66 alone, that there was in fact a 50/50 allocation of profits. 197 That said, it is obviously not necessary that profits be split 50/50 for there to be a partnership. The division of profits could have been agreed to be an unequal one (or one to be determined in due course, although in those circumstances there would be obvious difficulties enforcing any partnership claims). 198 While in his affidavit Mr Avati seems to accept that Mr Bova was looking to "invest" in "his" show (which suggests Mr Avati understood that Mr Bova would make a return out of the profits of that show), Mr Avati in the witness box denied that Mr Bova was "investing" in the show: "He never got $1 out of his bank account and put it into a bank account. To me that would mean that he was investing in my show". 199 Mr Avati was adamant that he later agreed with Mr Bova that that return would be by way of payment of a weekly "wage", but there is nothing in writing to suggest that this was the arrangement other than Mr Avati's communication to Mr Cassim to that effect. Mr Avati's subsequent calculation of what was "owed" in that regard is, in my view, an effort to reconstruct (as at June/July 2000) what would have been owed under such an arrangement; not evidence of there being such an arrangement. (Conversely, other than the general statements to family/friends, there is nothing to show that what Mr Bova was entitled to was a share of profits per se.) 200 There is evidence that over the period from June 1999 to July 2000 moneys relating to performances by Mr Avati (including moneys received from CD or merchandise sales) were paid into one of four different accounts: (i) an SUBC account (an account operated by Mr Avati); (ii) a DMG account (an account operated by Mr Bova); (iii) an LEM account (an account opened in December 1999 and over which both Mr Bova and Mr Avati were signatories for some time); and (iv) a Comedy Corner account (an account operated by Mr Avati). 201 It is conceded that there was some overlapping between the use of the different accounts over the relevant time but neither party suggested that there was a systematic plan for the use of those accounts. Mr Sirtes submits that the use of the respective accounts militates strongly against the existence of a partnership, particularly insofar as no separate "partnership" account was established. It is submitted by Mr Sirtes that: (i) between 21 June 1999 and 9 June 2000 monies were routinely deposited into the account of SUBC including all of the amounts received from the Parramatta Riverside Theatre; (ii) the LEM account was used between 21 December 1999 and 11 July 2000 and the amounts of money that were paid into the LEM account were relatively small, aside from some larger payments (one on 25 February 2000, being a $10,000 loan from Steve Bomba, for the manufacture of CDs and another, on 5 May 2000, being income from CD sales); (CD moneys appear to have been deposited into the LEM account and various expenses from January 2000 (including in relation to the "Lock Up Your Nonna" national tour) were paid from the LEM account.) (iii) the Comedy Corner account was opened in May 2000 and used from 9 June 2000 (while the largest deposits of money from income earned by Mr Avati were paid into this account I think it is unlikely that much can be made of this given that the operation of this account largely coincided with the termination of the relationship between Mr Bova and Mr Avati); and (iv) the DMG account was used intermittently (and on a number of occasions it seems that funds that had previously been received by Mr Avati in the SUBC account were transferred to the DMG account). 202 It was submitted by Mr Sirtes that if, in April 1999, there was a partnership agreement, then it is odd that arrangements were made for the payment of moneys to any partnership account as such, the Parramatta Riverside Theatre moneys from June 1999 admittedly being paid into the SUBC account. The fact that Mr Avati was thereby retaining control (with Mr Bova's acquiescence) over the Parramatta Riverside Theatre show revenues, in my view may minimise the weight which can be attached to the later use of the LEM account. 203 It is submitted by Mr Sirtes that, being an experienced businessman, had Mr Bova known and understood that he was in a partnership with Mr Avati then not only would the variety of accounts have been unnecessary but, more relevantly, a joint account under the names of Messrs Bova and Avati with joint drawing privileges would have been opened in recognition of the partnership. However, to the extent that Mr Avati was a joint signatory to the LEM account (and it was opened apparently for the purpose of depositing funds from ticket and CD sales from the shows in which Mr Avati performed) it seems to me that if the opening of a joint "partnership" account is a relevant factor, this account would satisfy that description. 204 Mr Russell concedes that there was an overlapping of the different accounts used by the parties but submits that this does no more than provide evidence of the informality of the partnership arrangements, rather than gainsaying the existence of a partnership. 205 The fact that moneys from the national tour were paid into the Comedy Corner account in May 2000, to Mr Bova's apparent knowledge and with his acquiescence, was said by Mr Sirtes to be fundamentally inconsistent with the notion that there was a partnership. Given the informal way the parties seem to have been content to operate their joint activities up to that point, I doubt that much can be made of this. 206 Mr Bova's evidence was that he knew around May 2000 that another company was being set up by Mr Avati and so he was unconcerned about the establishment of Comedy Corner and did not query Mr Avati about his creation of Comedy Corner (T 111.18). Mr Sirtes points to the lack of any explanation as to why he was content for Mr Avati to set up his own company when, according to Mr Bova, he was in a partnership with Mr Avati at the time: (referring to T 110.25). However, it does not seem to me that much can be drawn from the (perhaps) haphazard way the various accounts were operated. By his own admission, Mr Avati was not an experienced businessman. While Mr Bova had more experience, he was clearly trusting (or naïve) enough not to put whatever he thought were the business arrangements into any written or formal document. Further, it might well be that Mr Bova understood the establishment of a company by Mr Avati was (perhaps to mirror his own corporate entity DMG) a vehicle through which Mr Avati's interest in their "partnership" would be held. 207 Mr Bova alleged that the "partnership" accounts were maintained on a computer. It is submitted by Mr Sirtes that this should be rejected as there was no mention of any computer-based accounts in Mr Bova's affidavit material and such a suggestion was made for the first time on 23 March 2009 during Mr Bova's cross-examination (T 46.45). It is said that a key matter such as this (see T 49.49) would have been recognised as important and obvious to mention in his affidavit material (if it was true), the maintenance of accounts being such a profound indicator of a partnership. Mr Bova could not recall whether the accounting software on the computer was MYOB or Quikbooks (T 47.01) and was unable to confirm whether there was any such software on the computer (T 47.20). Mr Sirtes points to the fact that at first Mr Bova asserted that Mr Avati was doing the data entry (T 47.09) but then asserted that it was undertaken by both of them (T 47.37). 208 It is true that, as pointed out by Mr Sirtes, there was no financial documentation of the kind one would expect for a business partnership; there was no separate partnership bank account (although the LEM account could be said to have been adopted by the parties as their joint account for the purpose); no partnership agreement; no accounting for a partnership; no accounting software that centralised income and expenditure, disbursements and partnership takings; no partnership accountant; no partnership tax returns; no partnership management accounts; no partnership reconciliation of receipts and expenses; no partnership drawings (although Mr Bova would presumably characterise the payments made to him in June/July 2000 as meeting this criterion); and, significantly in my view, no provision by Mr Bova in his 30 June 2000 tax return for partnership income. Again, how much weight can be placed on the lack of a separate partnership bank account so-called (or on the absence of any partnership tax return) may be a moot point give the informality of the arrangements. 209 I accept that there was no accounting, during the parties' working relationship, of the kind which would be indicative of a formal partnership. That said, there was little, if any, accounting carried out at all by the two parties. Mr Sirtes points to the fact that Mr Bova accepted in cross examination that it would be important carefully to keep records and prepare reconciliations after each event (T 25.15) but that there is no evidence that this occurred. Mr Bova's evidence as to the reconciliations was confused, to say the least (T 25.15; T 56.45). As to reconciliations, Mr Bova first suggested this was done after every payment, or after one or two payments (T 24). "Joe and I would sit down and speak about it and find we are up to funds find out what bills were and reconciled". He later said reconciliations would occur after the performance of each show (on the national tour – see T 56.45). 210 Inconsistently with that evidence, Mr Bova said (at T 53) "I don't think there is an occasion which we do that" [sit down together and discuss invoices/receipts and work out reconciliation] but then seemed to think he was being asked to refer to such a discussion in his affidavit. He suggested (at T 50) that what they had "reconciled about" was how much to take out for the bills and how much to leave in the account to keep it running. Part of the difficulty here may be that I do not think Mr Bova understood the concept of reconciliation that was being put to him – and there was, I think, some misinterpretation on his part of the questions. 211 Mr Sirtes submitted that it would be impossible to undertake a meaningful reconciliation of any shows until the end of the season when a proper reconciliation of income versus expenses could be undertaken. In that regard, it seems to me quite feasible that informal reconciliations were held from time to time during the course of the productions, but there is simply no real evidence that this occurred. Despite Mr Bova's evidence of informal reconciliations after every show (para 78 of his 28 February 2006 affidavit) (which was clearly contradicted by his evidence in the witness box) or after large payments were received (T 55), it does not seem that there was any systematic or principled reconciliation of receipts and expenses of a kind which might have been expected from a partnership of the kind asserted (or even from an unincorporated joint undertaking, by comparison with the reconciliation prepared by Lawrence Jackson after the Melbourne Comedy Festival). 212 There was in evidence a handwritten document prepared by Mr Avati in May 2000 of takings. Its purpose was unclear on the face of the document (though it might suggest an arrangement to share equally the CD sale profits). Mr Avati said it was used for budgetary purposes and not given to Mr Bova. 213 I do not think that the evidence before me enables a conclusion to be drawn that, as a matter of fact, the profits from any one or more of the shows were divided precisely on a 50/50 allocation between the two parties. 214 However, it does seem to me that there is evidence to conclude that the parties were (in some fashion) sharing the profits derived from the shows (largely, it would seem, using the profits from the earlier shows to fund expenses or accommodation costs of the two parties or for forthcoming shows but with an expectation that there would be a split of the returns in some way). Some of the funds in the LEM account were, for example, used to pay expenses for the national tour. 215 In relation to the payments made by Mr Avati in respect of what he claims he "owed" to Mr Bova in respect of wages, etc (see paragraphs 272-274 of Mr Avati's Affidavit), it is submitted by Mr Russell that this is mere concoction on the part of Mr Avati to justify the large payments being made by him in June/July (on which Mr Bova relies as a sharing of the profits). In that regard, I find unconvincing Mr Avati's affidavit evidence as to the formulaic statements said to have been at the time he says he made each of the payments set out in paragraph 274(a)-(c) of his affidavit (at T 249.30 Mr Avati conceding that the payment at 247(d) was not made and hence no such conversation could have occurred at that time) and difficult to accept. This evidence seems suggestive of an attempt at reconstruction in order to explain the large payments made to Mr Bova. 216 There is no evidence that Mr Avati discussed or reached any agreement with Mr Bova as to the accuracy of the figures referred to in paragraph 272 or 274 of Mr Avati's affidavit, as opposed to the perhaps more likely position that, as at June/July 2000 Mr Avati was seeking to wind up or finalise his arrangements with Mr Bova and thought this was a fair way to do so. 217 I was taken to nothing in the financial statements or tax returns of Mr Avati or the Comedy Corner that would support a finding that Mr Avati or the Comedy Corner paid any amounts by way of wages or fees to Mr Bova. Mr Russell points to the fact that no such documents were produced in answer to a subpoena served on Cassim Calligeros Simos, the accountants acting for both Mr Avati and the Comedy Corner (a copy of which subpoena is Exhibit W). 218 I am left with the situation where there were substantial sums of money paid by Mr Avati to Mr Bova, seemingly in recognition that he was owed an amount by reference to the joint venture(s) in which the two had been involved over the period, but without any satisfactory basis on which to conclude that those payments represented a particular share of profits, as such, or an agreed sum. 219 Indeed there is an inference which I think might perhaps reasonably be drawn from Exhibit K/U, that what Mr Avati was seeking from his accountant in May 2000 was an indication as to what would be a fair percentage of profits to be paid for Mr Bova's services to date, there having been no particular agreement as to this up to that point. 220 I suspect Mr Avati was (perhaps unintentionally, given that in this answer he was referring to the difference between an employee and a contractor), closest to the truth of the situation when he said (T 263) that back then in his mind he had no idea how Mr Bova was to be paid. He went on to say "I wasn't paying him as an employee or contractor. I was just paying him to do something". · Policy of joint venture 221 As to the policy of the joint venture, it is said in Lindley & Banks at [15-01] that it is inherent in the contract of a partnership that each partner will be remunerated and have the right to participate in the management and administration of the partnership, referring to Hybernia Management & Development Co v Newfoundland Steel Inc (1996) NFLD & PEIR 90, 107 (see also BSP Technical Services Pty Limited v AMEV-UDC Finance Limited (unreported, Hodgson J, 25 March 1985); United Builders Pty Limited v Mutual Acceptance Limited (1980) 144 CLR 673 at 679; though a right to participate in management can be modified by agreement - s 24(1)(5) of the Act). Reliance was placed by Mr Sirtes on Cribb v Korn (1911) 12 CLR 205 for the proposition that one party's right to direct or control the other is a relevant factor to take into account. 222 Here, it was said that Mr Bova had accepted that Mr Avati had a right to direct or control the arrangements under which they carried out the performances and hence this was inconsistent with a partnership. (I note that Mr Puglisi by contrast gave evidence that he had never seen Mr Avati order or direct Mr Bova. If, by that, it is suggested that this contradicts Mr Avati's assertion that there was a retainer or employment relationship between the two, then I doubt that much significance can be drawn from the behaviour of the two men in what would seem to be primarily a social setting – in their shared house, collaborating on comedy routines.) 223 It does not seem to me to be inconsistent with the notion of partnership that, just as some partners may have different roles or contributions to make, some may have greater responsibility or control over decision making. Therefore I do not see this factor as decisive in determining whether there was a partnership (and if so what it comprised) between Mr Bova and Mr Avati at any stage. However, had it been necessary, I would have found that it was Mr Avati who was the controlling mind, so to speak, of the joint enterprise and that this was a factor tending against the existence of a partnership. · Property 224 Mr Sirtes points to the difficulty of identifying what, if anything, is the partnership "property"; on the basis that it cannot be suggested that the "property" of the partnership is Mr Avati himself. However, it is suggested in Lindley & Banks at [5-32] that it is not necessary that there be joint property for there to be a partnership: Equally, where one person owns property and the other possesses a particular skill, they may agree that the latter should have control of the property for their mutual benefit and that they should divide the profits derived from its employment between themselves. In such cases it may be no easy task to identify whether or not a partnership has been created: everything will depend on the terms of the parties' agreement and on their underlying intention. 225 (See, for example, the form of partnership described by Walsh J in Harvey v Harvey (1970) 120 CLR 529 at 562-563 and by O'Bryan J in Macpherson v Macpherson (unreported, Supreme Court of Victoria Full Court, 30 November 1990).) 226 As I understand it, what is contended by Mr Bova is not that there was particular "property" which either brought into the partnership (or acquired during the partnership) but that what was created during the partnership (particularly the "Livin' la Dole-Cheque Vita" CD and the Te-Nonna t-shirt) thereby became the partnership assets. It is further asserted that the partnership business included the "Lock Up Your Nonna" tour (by which I understand Mr Russell to contend that the profits or opportunity to make profits of that tour belonged to the partnership), the proceeds of sale of the "Livin' La Dole-Cheque Vita" CD; the incomplete "project" of the "Live & Unpluggato" CD; and the proceeds of sale of the "Te Nonna" t-shirt. 227 As noted earlier, there was an issue as to whether Mr Bova was asserting copyright in part or all of those materials. This was the subject of argument before me when the matter was first listed for hearing in late 2008. The plaintiff's Outline of Facts and Submissions, dated 17 September 2008, contains the assertion that all property in the copyright and sound recording in the CD "Livin' La Dole-Cheque Vita" subsists or belongs in equity to the partnership because it was produced by "the firm" and for the purposes and in the course of the partnership business (ss 20(1) and 21 of the Act; cf Part IV Division 5 of the Copyright Act 1968 (Cth)). Similarly, it is said that all property in the copyright for the photograph and artwork on the "Te Nonna" t-shirt (500 t-shirts of which had already been produced at the time the arrangements between the parties came to an end) subsisted or belonged in equity to the partnership (paragraph 13). Whether that be the case, depends, of course, on whether there was a partnership and whether its scope extended to the endeavours comprised in the creation of the CD/merchandise. Therefore, the creation of the CD/t-shirt cannot of itself be a factor which assists in determining whether there was a partnership at the outset. · Other matters 228 It was submitted by Mr Russell that, on any commercial or sensible view, the agreement as alleged by Mr Avati was particularly disadvantageous to Mr Bova as it involved Mr Bova assuming all the risk, not sharing in any profits and having to await payment for expenses incurred or his wages when Mr Avati was able to pay; there being really no risk undertaken by Mr Avati in this agreement (T 319; T 319.40-.45, T 320.20-.35, T 321.10-15). 229 In that regard, it might be said that under such an arrangement any risk was one under Mr Bova's own control, insofar as it was open to him at any stage to decide that he was not prepared to provide any further funding and (as pointed out by Mr Sirtes) much of the initial funding came through DMG and sponsors, so the risk to Mr Bova personally could be said not to have been great. 230 For Mr Avati, it was submitted that not only was Mr Avati writing the comedy material, he was also performing it and therefore there would be no commercial justification for Mr Avati to agree to give up half of his income to Mr Bova, who was not acting in any way full-time in connection with the Avati shows (since Mr Bova still ran his guitar business and travelled frequently for the advancement of his own business concerns). It was said that by mid 1999 there was no suggestion that Mr Avati was earning anywhere near enough money to support himself, let alone share his income with Mr Bova and that the more believable scenario is that he sought the assistance of a close friend and then housemate to act as his manager and that he agreed to pay Mr Bova for those services at an agreed amount (or perhaps at a fair amount later to be agreed) when money was forthcoming. 231 In that regard, it seems to me that the respective rationales which led Mr Bova and Mr Avati to enter into their informal working relationship are by no means easy to deduce, and ultimately I do not think that speculation as to those rationales assists me greatly in determining, on the objective evidence, the nature of their relationship. On the one hand, Mr Bova may have been prepared to fund or organise the funding of the Parramatta Riverside Theatre shows (and accept the risk that ultimately he would not be paid for his efforts if the shows were a failure) for his personal satisfaction (or to build up a public profile) which such an association with a performing comedian might bring. On the other hand, Mr Avati may have considered that the benefit of upfront funding was worth splitting the (as then unknown and perhaps relatively small) profits of the shows down the track. 232 What seems more relevant is what was said by the parties about their relationship to others. Weight is placed by Mr Russell on the fact that Mr Avati (who drafted (albeit with consultation with Mr Bova) the CD sleeve insert for the Livin' La Dole-Cheque Vita CD produced in September 1999) referred in that CD insert to Mr Bova as his "business partner". While a factor, I think the weight which can be placed on this is low. Both Mr Bova and Mr Avati seem to have paid scant regard at the time to the accuracy of their description of events (the use of the LEM name in early 1999 being a prime example of that). Moreover, "partner" is now used in so many different contexts in everyday parlance that, even preceded by the word "business", it might conceivable mean simply a "co-venturer" and not partner in the legal sense. 233 Mr Avati, significantly, when he explained how the ShowUs Entertainment arrangement came about said: "My uncle wanted to be a partner. Well my uncle was my tour manager since 2000, end of 2000 around the world and he then took responsibility of merchandising. It was too big a task for me to look after. He set up a company" (T 408). In that context, significantly, Mr Avati seems to have contemplated or understood that his uncle may have been a "partner", though also describing him as a tour manager. 234 Evidence was given in Mr Avati's case by his father, Francesco, and his brother, Anthony. Mr Francesco Avati's evidence went mainly to the disputed 13 July 2000 conversation in which the working relationship between him and his son was brought to an end. I do not consider that this sheds any real light on what the parties' position was, in a legal sense, prior to that time. Mr Anthony Avati gave evidence as to his joint performances with his brother and his observations of the material developed by his brother. This supports the likelihood that (as between Mr Bova and Mr Avati) Mr Avati was the main creative source for the shows, but again does not illuminate the nature of their relationship. 235 Evidence was given by various of Mr Bova's friends or family in Mr Bova's case (Mr Bova's sister, Ms Connie Maggio, and Mr Bova's friends, Mr Bruno Puglisi and Mr Ray Ortuso) as to conversations in which Mr Avati is said to have acknowledged the existence of a partnership with Mr Bova and said that they were equal partners or would split the profits 50/50. 236 As to the evidence given by Mr Bova's sister and friends, the difficulty is that this seems to be no more than a general assertion of a working relationship or joint venture in relation to the show then in contemplation (Parramatta Riverside Theatre). 237 By affidavit of 14 March 2006 Mr Puglisi, who describes himself as a friend of Mr Bova and has known him for many years, deposed to the "collaborative process" by which jokes were made up or constructed during 1999, and said (para 9): As the year of 1999 progressed, particularly after mid 1999 and into the year 2000 I often was present during conversations between the defendant and the plaintiff to the following effect: [Bova]: I'm putting a lot of time and money into your act, Joe. I'm only dong this because of our agreement that I get a 50/50 split of the profits. Please remember we're equal partners. I'm trusting you. [Avati] Without you Carlo I'd be nowhere … I'm not going to rip you off. We are equal partners and you'll get 50% of the profits. I promise. and that on one occasion Mr Avati also said, "Bruno you can be my witness right?" 238 It was submitted that I should discount or reject Mr Puglisi's evidence in part because he was a friend of Mr Bova's. Mr Puglisi did not seem to me to exhibit in the witness box any undue tenderness or bias for Mr Bova's position, nor was he demonstrated to be an unreliable witness. That said, it strikes me as somewhat odd that, if the kind of conversation to which he deposed did take place "often", Mr Bova would not have sought in some way to document the agreement of which he was being portrayed as anxious to obtain confirmation. Moreover, the timing of the conversations is very broad – they cannot realistically have been before April/May which makes the suggestion (from the use of the words "particularly after mid 1999") that there were conversations in early 1999 rather questionable. Further, to the extent that this conversation seems to mirror Mr Bova's perception that he was "putting a lot of time in" or that Mr Avati would be nowhere without him, they raise a question in my mind as to whether Mr Puglisi's recollection was influenced (unconsciously perhaps) by Mr Bova's perception of the relationship. 239 Mr Ortuso in his evidence confirmed that a discussion, in relation to the possible acquisition of his business, took place in early 2000. Mr Ortuso's evidence therefore needs to be seen having regard to the fact that there were at that stage discussions with Mr Bova, for the possible acquisition of his entertainment management business, in the context of which Mr Avati and Mr Bova were looking to work together in partnership, hence it is not surprising, perhaps, that Mr Ortuso recalled there was discussion as to a partnership. 240 Mr Ortuso's evidence was challenged on the basis that, due to a falling out with Mr Avati, he had lost commission in respect of tickets for his shows. Mr Ortuso was, in the witness box, seemingly unfazed by the prospect of losing a (mere) sum of $20,000. In any event, it struck me as somewhat unlikely that in the conversation to which Mr Ortuso deposed, Mr Avati was doing anything other than telling Mr Ortuso what he might have thought Mr Ortuso wanted to hear about Mr Bova's input in the show (in the context of seeking to obtain bookings at Club Marconi), much as Mr Avati was seemingly happy to hold Mr Bova out as his "manager" to achieve some status back in early 1999. 241 Ultimately, I think the evidence of Mr Puglisi and Mr Ortuso does not take matters very far. 242 Ms Connie Maggio deposed to conversations in late August 1999 and in October 1999, in which she says Mr Avati said things such as, "Any profits we earn, Carlo and me, we'll share equally". "It's a 50/50 partnership". "I'd be going nowhere it not for Carlo". Ms Maggio was able to place the conversations at those times by reference to family social events which she would have reason to recall and at which it is not unreasonable to expect Mr Avati would have attended as Mr Bova's friend. 243 Ms Maggio struck me as genuinely concerned for, and looking out for, her brother's interests, but not to the extent that she should be regarded as an untruthful witness. Ms Maggio gave a credible explanation for her concern to seek confirmation from Mr Avati as to his dealings with Mr Bova, she and her husband having themselves lost money in commercial dealings with relatives. Ms Maggio's lack of faith in Mr Avati's promises reflects, perhaps, an awareness by her of the informal and uncertain nature of the relationship or arrangements between her brother and Mr Avati. I found her to be a credible witness. 244 However, as at both April and October 1999, the only show profits which could have been shared would have been those referable to the Parramatta Riverside Theatre shows, and therefore any conversation as to the profit split could well have arisen in the context of those profits alone. It does not seem to me that this is indicative of a broader partnership. My view in that regard is confirmed by what Ms Maggio says she said in October 1999, namely, "What are you and Carlo doing next?" which suggests a state of uncertainty as to any ongoing arrangements between the two. Further, the fact that Mr Avati is said to have gone on to say, "Don't worry Carlo and me are on an even split of profits [for the Enmore Theatre shows]. That's what happened at Riverside …" confirms my view that what had happened was that there was an initial arrangement for the Parramatta Riverside Theatre shows, after which the parties had jointly undertaken their next production on a similar basis but not that there was an overarching agreement to cover any and all comedy productions in which they might be involved. 245 Insofar as Ms Maggio said Mr Avati told her "I owe everything to Carlo. If not for Carlo. If not for Carlo I'd not have a show", this seems likely to me to have been exaggeration on Mr Avati's part or else a recognition of Mr Bova's contribution to the funding of the show, not its creation. Mr Avati already had a "show" before meeting Mr Bova, in the sense of a set of comedy routines and an idea of how to promote himself on stage as a comedian. 246 Therefore, while I accept Ms Maggio's evidence ultimately I think it does no more than confirm an initial limited partnership or joint venture arrangement. 247 As to the respective accountants who gave evidence, Mr Gillon's evidence confirms that it was his understanding that (at least as at mid 2000) the parties were seeking to formalise their arrangement as a partnership. However, although the application form for the TFN was dated 31 March 2000 in handwriting, the ABN form has a notation May 2000 and it is not clear that this follows on from any admission by Mr Avati as to the nature of an existing and ongoing business relationship or simply records the putting in place of new arrangements going forward. 248 Mr Cassim's affidavit deposed, in effect, to a negative – he did not recall Mr Avati mentioning any partnership in existence with Mr Bova. The most that can be inferred from what he said in his affidavit was that Mr Avati acknowledged he was working jointly with someone (and, on the facts, that must at the time have been Mr Bova). · Credit 249 It was submitted by Mr Sirtes that this case must inevitably turn on credit findings. While I do not believe that is so, there being contemporaneous evidence that has largely underpinned my reasons, I should make the following comments about the respective parties' evidence. 250 Mr Sirtes submits that the most telling document that eschews the existence of any partnership is Exhibit "1", which Mr Bova created for "his own recollections" as his "own summary" (T 101.40-45). In this document, Mr Bova described the events of 13 July 2000 as a dismissal from "managerial duties" even though Mr Bova testified under oath that he never believed he was doing managerial duties: (T 105.05). Mr Sirtes submits that Mr Bova had no plausible explanation as to why he characterised himself merely as a manager when he now asserts that he was at all times a "partner" (T 105.23). 251 To my mind, the description of "manager" is not as telling as the statement that Mr Bova was "dismissed" but in either event I take into account the looseness in the descriptive terms generally used by the parties in this matter. Whether Mr Bova saw himself as unfairly dismissed or his position as partner in a relationship improperly terminated by Mr Avati probably amounted in his mind to the same thing. 252 Significance was also placed by Mr Sirtes on the fact that when Mr Bova did commence the proceedings, his assertion as to the existence of partnership was not even the principal claim, it was included only as an alternative claim in paragraph 7 of the original Summons filed on 31 August 2001 (which asserted that the alleged partnership commenced in March 1998). I think that this is not something which detracts from the alternative partnership claim. This may simply be a reflection of the emphasis apparently placed by Mr Bova on his own involvement (and creative input) into the process of creating and producing the show. He clearly regarded it as a product (though the reference to 'the minimum show' in the first CD insert was, I thought, convincingly explained by Mr Avati as a reference to a process or concept not to the content of the show itself). 253 Mr Bova's inability to pinpoint the date when the partnership commenced (T 61.17ff) as a matter which it was said condemned the authenticity of his claim and the reliability of Mr Bova's evidence. There is no doubt that the evidence as to the time at which the alleged partnership commenced bordered on the farcical. In the initial summons it was put as commencing at a date when Mr Bova admits he had not even met Mr Avati (March 1998); in his Statement of Claim it was put at February 1999; in his affidavits it was put variously at January 1999 (6 November 2008 affidavit) and late April 1999 (26 February 2006 affidavit). The final pleading put the date at April 1999. 254 In the witness box, Mr Bova gave contradictory evidence of the relevant date. At T 61 he said, "Don't hold me to it but may be March April May probably April I would say in year 1999". Although Mr Bova responded "without a doubt" to various propositions, put to him as to the commencement of the partnership in fact his evidence revealed a considerable degree of doubt (see T 61/62/63). At T 62 he said emphatically April 1999. At T 63 he said February/March closer to March and conceded he did not remember exactly. At T 62 he said "Maybe should read probably like January, February any thing from March April". On 24 March 2009, Mr Bova reverted to saying it was "March/April" and initially did not remember having said the day before in the witness box that the March 1998 date was wrong (T 66). 255 The explanation for some of this confusion seems to be Mr Bova's firm belief (expressed more than once in the witness box) that once the pair stepped on the plane to USA/Canada and started telling jokes together their working relationship had begun and it was simply "confirmed" later (see T 67). Hence, on a number of occasions he seemed to resist the proposition that the partnership had not commenced in early 1999 even though he ultimately agreed that the relevant conversations on which any such agreement depended were not until after the Melbourne Comedy Festival. 256 The only unified theme in his evidence in this regard was that the partnership arrangements were agreed straight after the Melbourne Comedy Festival reconciliation. "If you want me to put a date on it – at the end of the Comedy Festival" (T 70). The most reliable explanation, therefore, was that the date of this conversation was at a time after the reconciliation from the Melbourne Comedy Festival shows. 257 There was also some confusion (but to a much lesser extent) on Mr Bova's part as to the date pleaded for the termination of the relationship. Indeed, Mr Bova conceded that until he got Mr Avati's "exhibits", he could not actually put a date on this. 258 Mr Bova's manner in the witness box was of someone eager to impress upon me the merits of his claim. He was (I think fairly) described by Mr Sirtes as loquacious. He certainly had a tendency to give expansive answers. More relevantly, I think, he had a tendency to put himself "into the moment" or at the heart of the scene, so to speak, seemingly having no difficulty telling his story in first person speech and with the aid of anecdotes and jokes. He was very expressive in manner both in the witness box and when sitting in the courtroom listening to the evidence of Mr Avati. 259 The vagueness of his recollection of dates and events (and particularly the inconsistency in his evidence in that regard) left me with the impression that Mr Bova's evidence was often more a retrospective telling of his story or narrative of events from his particular viewpoint than a particularly accurate recollection at this stage of what had been said or done at a now much earlier time. Without in any way doubting that he was telling his story as he saw it, I think Mr Bova had a tendency to look for dramatic emphasis, rather than calmly recounting what he remembered of events, and that this suggests that what he was recounting was his impression of events, coloured perhaps by his emotional response to them. 260 Mr Bova had a tendency to "jump in" and answer questions quickly, perhaps without giving full reflection to his answers – such as accepting "without a doubt" that he would have had absolutely no question in his mind back in August 2001 as to when the partnership had started (though in his summons that date was demonstrably wrong) an obvious error that Mr Bova then said he "must have overlooked" (T 60/61), which may explain some of the inconsistencies in his evidence. 261 Mr Avati, on the other hand, was less prone to dramatic gestures in the witness box (and court room itself) than Mr Bova, but seemed surprisingly (and perhaps deliberately) vague on the details of his corporate enterprises post July 2000 and keen to describe himself as a novice in business matters. Mr Avati says he did not understand until about 1999/2000 that a company had its own separate legal identity (T 259). His vagueness on matters relating to what was done after the termination of his working relationship with Mr Bova cannot, I think, satisfactorily be explained either by Mr Avati's business naïveté at that stage (or by his trust in his business advisers) particularly when Mr Avati must surely have understood (at least from August 2001) that his actions post July 2000 would be the subject of scrutiny by the court in this matter. 262 I was left with the impression that Mr Avati was, to say the least, not unwilling to distance himself from, or to divest himself of, any element of control in respect of his career. Though this may well have been done primarily to minimise corporate liability or for tax reasons, that decision meant that he placed that part of his business outside the scope or immediate scope of this dispute with Mr Bova, in circumstances where Mr Avati seemed (as I understood his evidence) to be content simply to receive an annual wage but no direct return from CD sales or other ventures. That seems to me to be a surprising state of affairs. 263 Therefore, I think caution must be exercised in accepting either party's version of events (particularly given their affidavits were executed for the first time some years after the critical conversation(s) and in the witness box some ten years later). In that regard I note the caution expressed by McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 319. 264 There seems to me no reason to doubt Mr Bova's generosity in assisting Mr Avati and his keenness to help Mr Avati's career (the speed with which he offered Mr Avati accommodation and to help pay for his US/Canada trip are testament to that) and he seems to have had a remarkably trusting nature – even on Mr Avati's version of events, Mr Bova was willing to defer payment of large amounts of money with no formal documentation on which to fall back if Mr Avati did not live up to his promises. (It is, I think, consistent with this that his sister (Ms Maggio) felt the need to keep a protective watch over her brother's business relationship with Mr Avati at least in 1999.) 265 I accept that Mr Bova has a genuine sense of grievance. His explanation of his understanding of a partnership reflects that grievance. He said a partnership was "Where we both set out on an equal goal or we have an idea. We both put our resources in, whatever we are good at doing to make that idea come to fruition – once that idea has come to fruition and if that is what you have negotiated as to what the idea is going to be, if the idea takes off you share equally" (T 58). 266 Therein lies Mr Bova's real complaint, as I see it – the parties together shared an "idea", collaborated in the Parramatta Riverside Theatre shows in which that idea was developed, and it is Mr Avati alone who has gone on to reap the benefits of that. However, in the absence of some agreement that the two would continue (in partnership or otherwise) together for the national tour, it does not seem to me that Mr Bova has any entitlement to share in the profits realised by Mr Avati after that "idea" had taken off, so to speak (even if, as Mr Avati's evidence suggests, the profits so realised were greater, at least to the extent that not as much advertising revenue was required to be expended once his profile, generated from the earlier shows and from the CD became known). · Consideration of issue (i) 267 Mr Russell submits that the parties agreed there was a partnership between them to share profits equally, which was to be carried on under the name of LEM, the only disagreement between them being as to the precise character of the venture or undertakings for which the partnership existed (that is, was the partnership limited to the staging of other comedy acts, as contended by Mr Avati, or did it encompass the wider range of ventures and undertakings, and, in particular, Mr Avati's own comedy show, as contended by Mr Bova). While Mr Avati does concede that there were some acts produced "in partnership" by himself and Mr Bova, those were limited in number and, if any partnership were limited in scope to those acts, then it would not on any view sustain the relief sought by Mr Bova. 268 There was in my view clearly a "joint venture" or joint undertaking between the two (using that term as a description of the effect of their relationship and not suggesting that it has any technical legal meaning) commencing from about April/May 1999 when it was agreed between them that Mr Bova would provide assistance (financial and otherwise) in relation to the production of what became the Parramatta Riverside Theatre shows. I do not understand it to be denied that they also worked together on the other productions in 1999 and had commenced to work together in relation to the forthcoming Lock Up Your Nonna tour. However, the basis on which the parties had worked together was informal, to say the least. 269 The informality of that arrangement seems not inconsistent with the informality of other arrangements Mr Avati seems to have entered into from time to time with various other friends or acquaintances – such as his early arrangement with Mr Lawrence Jackson and his later (vaguely described) arrangements for distribution of CDs and the like by friends such as Ms Maria Spano or Mr Anthony Cianotti's company, Calabrese Productions. 270 I note that in UDC v Brian, Mason, Brennan and Deane JJ said (at 10): The term "joint venture" is not a technical one with a settled common law meaning. As a matter of ordinary language, it connotes an association of persons for the purposes of a particular trading, commercial, mining or other financial undertaking or endeavour with a view to mutual profit, with each participant usually (but not necessarily) contributing money, property or skill. Such a joint venture (or, under Scots' law, "adventure") will often be a partnership. The term is, however, apposite to refer to a joint undertaking or activity carried out through a medium other than a partnership: such as a company, a trust, an agency or joint ownership. The borderline between what can properly be described as a "joint venture" and what should more properly be seen as no more than a simple contractual relationship may on occasion be blurred . (My emphasis) 271 As in IEL v Lyons, the first question is whether the joint venture between the parties in this case is that which would amount in law to a partnership, whatever name they may have put on that relationship. In IEL v Lyons, Cohen J noted that the phrase "joint venture" (which the parties there had adopted) did not establish any particular form of relationship. In both UDC and IEL v Lyons it was recognised that there may be a joint venture which does not constitute a partnership. 272 What is by no means an easy question in this case is whether the joint business activity or venture (in which Mr Bova and Mr Avati were clearly engaged in some capacity during 1999/2000) was a partnership (a joint commercial enterprise "with a view of profit" in the sense that the parties were to share the profits, whether equally or otherwise) or no more than a joint venture having no particular legal status. The difficulty arises because of the ad hoc or informal nature of the arrangements between the two. 273 There are factors which point either way. 274 On the one hand, there was no written partnership agreement, no apparent recognition by the parties of a need to take the steps which would follow from the creation of a separate legal entity (such as the filing of a partnership tax return), no (or at best very informal) accounting or reconciliation as between the alleged partners of the moneys referable to the alleged partnership, it is difficult to ascertain any joint partnership "property" as such, and there was a degree of separation or independence in the way in which the two so-called partners operated their affairs (having regard, in particular, to the fact that they had separate accountants and had obtained separate advice from those accountants). There is, as Mr Sirtes submits, no single document between the parties recording the existence of a partnership (other than a reference on the CD sleeve to Mr Bova as "business partner") and Mr Avati's understanding as reflected in documents he brought into existence in April/May 2000, before the present dispute arose, was that Mr Bova was his manager and entitled to a "salary". 275 On the other hand, the two were together involved (in different roles and bringing different skills to bear) in a number of comedy shows (commencing with the Parramatta Riverside Theatre shows in July 2000), they together made use of the LEM business name (and by April 2000 Mr Avati became registered as an owner or person authorised to carry on business under that name) for the presentation to the public of comedy shows including those of Mr Avati, and, significantly in my view, they entered into at least one formal contract (trading as LEM) under which they jointly accepted liability in relation to the performance by Mr Avati of his show. 276 Significance is placed by Mr Russell on Mr Avati's acceptance of the proposition that Mr Bova performed or carried out the same functions or duties in relation to shows in respect of which he was alleged to be an employee and those in which he was said to be in partnership with Mr Avati (T 347.35-.40). However, insofar as that is relevant, it simply goes to dispel the notion that Mr Bova was an employee, not that he was instead a partner. 277 What actually happened with the financing of the shows and the moneys received therefrom, similarly does not in my view shed much light on the issue, since it can (and has been) explained consistently with either party's version of events. There is no doubt that Mr Bova offered or agreed to fund (either himself or through sponsors he might arrange) the production of the Parramatta Riverside Theatre shows until those shows began to produce revenues (or, perhaps, profits). That funding seems to have comprised, to a large extent, at least, in the first instance, allowing Mr Avati to occupy the Concord leased premises on some form of deferred rent/board arrangement and providing him with meals. Sponsorship was arranged for the Parramatta Riverside Theatre shows through Mr Bova's efforts and no doubt various expenses were paid through Mr Bova's company for the initial promotion and marketing of the shows (although some expenses were paid from the SUBC account also). 278 Once moneys came in from the performances (paid into the SUBC account at least until the end of 1999) it appears they were used to fund ongoing expenses of or related to that show or other later comedy acts. There was only a very informal reconciliation, if that, during the course of or at the end of the Parramatta Riverside Theatre shows. While I accept that the fact that one of the co-venturers had a role of "financier" lending money to another would not preclude a partnership (UDC v Brian) there is nothing in writing to suggest that Mr Bova was to be legally entitled to half the profits from the Parramatta Riverside Theatre shows or, and I regard this as significant, that he was assuming any personal liability in relation to those shows. 279 There was a contribution by both parties (whether equal as Mr Bova's evidence of contributions seems to be seeking to assert, or unequal as Mr Avati clearly believed, at least by April/May 2000) to the responsibility and control of the venture. (In IEL v Lyons, I note that the roles were not clearly defined, one party in general was to control the finance, another the building work and the third to use expertise in organisation and marketing of the venture, but there was found to be a partnership.) 280 There was no partnership tax return filed for the relevant period (a matter to which it was said that Mr Bova, as an experienced businessman, would have been careful to attend). Equally, there is nothing to suggest that there was an employment relationship as such – no group certificate or the like. 281 I consider that the evidence establishes that Mr Bova expressed to Mr Avati (whether of his own volition or in response to an approach by Mr Avati) in late 1998 an interest in managing entertainment acts; there appears to have been some initial "testing of the waters", so to speak, insofar as Mr Bova arranged for a trip to USA/Canada in which Mr Bova assisted Mr Avati (at least to the extent of portraying himself as his manager) to obtain the opportunity to perform at a venue in Las Vegas and encouraged him to perform at a venue in Vancouver and Mr Bova paid his own way to attend the Melbourne Comedy Festival and seems to have some involvement (through his registered business name LEM) in posters, ie arranging publicity for Mr Avati's performance there; and from April/May 1999 the parties (who were by then sharing a house together and had become friends) were discussing Mr Avati's next venture in the comedy arena (without either party contemplating at that stage what might happen thereafter for future shows). 282 What seems to me most likely to have been the case is that there was a relatively informal working relationship in which Mr Bova and Mr Avati together were involved, first in the production and performance of the Parramatta Riverside Theatre show and thereafter for separate (specific) productions of comedy shows involving Mr Avati on a venture by venture basis. The way in which Mr Bova and Mr Avati commenced and conducted their working relationship seems to me to have been very ad hoc and unlikely to be consistent with a concluded partnership arrangement intended to govern the long term promotion or production of comedy shows, whether by Mr Avati or by other comedians. 283 It is submitted by Mr Russell that if the only partnership was one limited in the way for which Mr Avati contends, then it is odd that the parties would have sought advice from Mr Gillon for a TFN whether in March or in May 2000 (particularly when Mr Avati said he then had concerns as to the relationship). However, it seems to me that two things can be said about the fact that Mr Gillon's advice was sought at that time. 284 First, on Mr Avati's account of the position, Mr Avati was already committed to a working relationship with Mr Bova through to June 2000. If so, it is perhaps not surprising that Mr Avati (however disinterestedly or otherwise) may have thought it necessary to put in place arrangements for the pair to operate in the interim. 285 Secondly, the thrust of Mr Avati's communication with Mr Cassim in May 2000 (though apparently typed in April 2000) and his preparation of the work summary outlining the proposed allocation of tasks with a greater degree of specificity than appears to have been discussed previously, is consistent with Mr Avati (however unhappy he was with Mr Bova's performance at that stage) still looking to negotiate acceptable working arrangements going forward (incorporating the proposed national tour and a new CD), in which case it would have made sense for Mr Avati to be joining in the process for LEM to be registered for GST purposes (in effect in anticipation of the new arrangements). 286 Therefore, I am not convinced that the meeting with Mr Gillon points to a conclusion that there was in March/April/May 2000 a partnership of the broad kind alleged by Mr Bova. That does not, of course, explain why Mr Avati was seemingly content for Mr Bova to describe their relationship in terms of a partnership in the discussion with Mr Gillon and/or himself to use the general description of himself and Mr Bova being "partners" in the comedy act (depending on whether it was he or Mr Bova or both who in fact made that statement). Nevertheless, the terms in which the parties have referred to themselves over the relevant period do not seem to me to have been chosen with any great care or regard to the legal consequences of their association (something to which the apparent willingness of Mr Avati to hold Mr Bova out in the USA/Canada or at the Melbourne Comedy Festival as his "manager" before a business relationship of any kind was in place is testament). 287 I note that Mr Russell places weight on Ex K/U (or more particularly on the handwritten "50/50" annotation by Mr Cassim) as evidence of a recognition by Mr Avati that there was already an arrangement for a 50/50 split with CD and merchandise sales; on the basis that, if he was dissatisfied with Mr Bova at that stage, it is unclear why Mr Avati would be suggesting (prospectively) a 50/50 split. Hence, it is said that the only thing to which this annotation could refer was what Mr Avati had told his accountant was the "current state of play". However, if the premise for such an argument is correct, then it begs the question as to why Mr Avati would be seeking Mr Cassim's view as to a fair percentage split based on the parties (clearly prospective) workloads as contained in the annexure to the exhibit. 288 There are two relevant pieces of contemporaneous correspondence that seem to me to shed light on the respective parties' understanding of their relationship in 1999/2000. 289 First, Mr Bova described himself as "Joe's manager" in his fax to Mr Gillon (to which I have referred earlier). (Paragraph 69 of Mr Bova's affidavit to the same effect lists his "management duties".) This was sent, it would seem, sometime after late April 2000 (because the attachment seems to be the same as the Work Summary forwarded to Mr Avati's accountant in May 2000). That document (consistent with Mr Avati's evidence that he was having doubts as to whether Mr Bova was pulling his weight in their business relationship) described "joe" as "fretting". What that fax asserted was that, "as it stands today" with Mr Avati, there was a 50% split in relation to the CD (presumably the Livin La Dole-Cheque Vita CD) and that Mr Bova had "financed" the Dole Cheque show on a 50% share of profits. Nothing was there said about there being a partnership in relation to the production of shows other than the Dole Cheque Vita show or as to a sharing of the profits from the forthcoming Lock Up Your Nonna tour. Mr Bova seems to have been wanting to obtain information to keep Mr Avati happy. 290 Secondly, and seemingly at or around the same time, Mr Avati sent through a fax to his accountant (admittedly on LEM letterhead) the terms of which suggest that he was seeking to change (or perhaps for the first time to put in place) arrangements for the tour whereby, instead of a "salary", there might be a percentage division of profits to achieve a fairer recognition of the respective workloads (and from the work summary it seems reasonable to infer that Mr Avati thought he was bearing a disproportionate proportion of the work). It is possible that this related simply to what was to happen with CD and merchandise sales (those items having been circled by Mr Cassim) but that seems inconsistent with the request that Mr Cassim suggest a fair percentage split based on a workload which included other matters. As to the CD/merchandise sales, the terms of the fax do not make clear what arrangement Mr Avati was proposing or what he thought the current arrangement, if any, was. Presumably, Mr Cassim's note reflects either the instructions given to him by Mr Avati or (as seems to be the case with the "975" figure) his advice to Mr Avati. It is not clear therefore whether those figures suggest that the parties had already agreed to a 50/50 split or that this was the figure which had been suggested by Mr Cassim or one of the parties. However, the advice sought as to a fair percentage must, logically, have related to the overall business relationship rather than simply to the CDs/merchandise. 291 There is a third document of some relevance, namely the document prepared by Mr Bova in 2003, after these proceedings had commenced, describing what had happened in July 2000 as a "dismissal from managerial duties". 292 Whatever be the case in relation to the Parramatta Riverside Theatre shows (and on balance I am inclined to think that there was a partnership in relation to that production), I am not satisfied that there was a partnership (informal or otherwise) in place of the overarching kind pleaded by Mr Bova or one which extended to the national tour. (I also do not accept that the national tour was a developing or maturing business opportunity within the scope of any partnership there may earlier have been.) 293 It seems to me significant that what happened in April/May 2000 was that Mr Avati was then considering the next step or next production, and the question of what role Mr Avati would play at that stage was one to be agreed afresh. 294 Mr Bova's explanation as to why his pleading as at April 2002 (which asserted in paragraph 8 an agreement in April 2000 to vary the partnership so that there would be an entitlement to an equal share of profits – seemingly unnecessary if the original agreement was to that effect) was later amended to delete that allegation seemed confused. Mr Bova said that paragraph 8 (as now deleted) was correct (T 73), but that all that was really changed was that "we were both wearing the losses" (T 74/75), and he seemed to suggest at one stage that this was just reconfirming the arrangements (T 73). When it was put to him that there was nothing in his affidavit about this, he said it would have been spoken about prior to Mr Avati handing him a job list (attached to Ex K); and that it was not important to put this in his affidavit as the only person it was going to affect was himself. This evidence in my view supports the conclusion that what was happening when Mr Avati handed Mr Bova the work summary was that they were discussing what arrangements were to be put in place going forward. In the absence of any agreement as to those arrangements it must follow that there was nothing to found a contractual basis on which Mr Bova was entitled to a half share of profits going forward. 295 On the evidence before me, I would conclude that what the parties were doing when they were consulting with their respective accountants in March/April/May 2000 was seeking to reach an agreement as to how they would structure their relationship going forward (and in so doing how they would work together in relation to the proposed national tour). No such agreement seems to have been concluded before Mr Avati brought the parties' working relationship to an end in July 2000. 296 Even accepting that Mr Avati described Mr Bova as his business partner on the CD, and in social conversations with Mr Bova's family or friends, and noting that acknowledgments were made in the CD insert as to how much Mr Bova had done for him, I do not consider that these to amount to any admission of any ongoing business relationship or partnership in relation to the national tour. · Conclusion as to partnership (issue (i)) 297 Therefore, at the most, I consider that there was a partnership limited in scope to the production jointly of the series of shows performed by Mr Avati at the Parramatta Riverside Theatre. Subsequently, the parties appear simply to have assumed that the same arrangements would follow for the further productions in which they were jointly involved (ie for the shows which were performed towards the end of 1999 and up to the January 2000 show). 298 Insofar as the parties did not formalise the continuation of their arrangements for the further shows but did nothing to indicate that they intended to change those arrangements, then I would be prepared to infer that the parties treated those further ventures as covered by those initial arrangements. 299 However, by the time that the discussions took place in March to May 2000, it was clear that Mr Avati was not happy to continue on the same informal basis and I do not consider that any joint venture or partnership (whether at an end at that stage or otherwise) extended to any further productions unless and until an arrangement was reached to that effect. (ii) Scope of the partnership/joint venture? Did it include property in the CD/merchandise? 300 The second issue raises the questions as to what was the property of the limited partnership between the parties and whether, after termination of the arrangements between the parties, Mr Avati had any duty not to make use of or usurp business opportunities, property or connections arising out of or made during the course of the parties' business relationship. · CD 301 Did any partnership which came into existence in mid 1999 extend to the production of the Livin La Dole-Cheque Vita CD? 302 Mr Bova's evidence was that it was the subject of a separate discussion in about August 1999. Such a discussion would not have been necessary had the initial partnership extended to such an activity. However, that does not necessarily determine the issue, because the agreement if any reached between the parties at that time might be said to have brought within the scope of the initial partnership the fruits of the production and sale of the CD, so to speak. 303 Mr Avati's evidence was that after the production of the CD he reached an agreement to pay Mr Bova for the payment of Mr Bova's costs relating to the CD. Mr Sirtes submits that almost all of the CD was the subject of Mr Avati's industry (the writing of the content, the performance of the show on 10 September 1999, the track selection, editing, creation of the sleeve and credits and the financing) and that, having almost single-handedly created the CD, there would have been no sensible reason for Mr Avati to offer or agree to split the proceeds of the CD sales on a fifty-fifty basis. However, that begs the question of what benefit Mr Avati may have perceived at that stage in the costs of production of the CD being borne or financed by Mr Bova, for which he may well have been prepared to share the profits on its sales. Therefore, I am not convinced that any disproportionate effort in the creation of the CD would lead to a conclusion that it could not have been intended to form part of the partnership arrangements. 304 Mr Avati seems to have been the party solely responsible in the first instance for funding the cost of its manufacture (which he did through loans received from Mr Bomba and which he later repaid). That seems inconsistent with the CD being regarded as "partnership" property. The second loan from Mr Bomba was, however, deposited into the LEM account and, hence, seems to have been treated as on a par with revenue from ticket sales from the Parramatta Riverside Theatre shows. That, and the absence (apart from assertions by Mr Avati to that effect) of evidence that the agreement with Mr Bova was for him to be separately reimbursed for his costs of production of the CD, taken with the credits noted on the CD and the fact that Mr Bova was involved in its creation (co-writing track 14 and being credited as joint producer), together with the communications between each of Mr Bova and Mr Avati with their respective accountants, leads me to conclude that the parties agreed jointly to produce the first CD and to share the profits equally between themselves. 305 While the conversation to which Mr Bova deposed related solely to the manufacture of the first 1,000 CDs, I would infer that (absent any later agreement to the contrary) any arrangement for a 50/50 split continued when further batches of the CDs were produced. Further, it seems to me that (again, absent any express agreement to the contrary) the 50/50 profit split would be likely to extend to any re-branding or re-release of that CD or sound recording, whether in Australia or overseas (so as to extend to the Livin' La Dolce Vita CD released in Canada in 2001). 306 Accordingly, I find that the Livin' La Dole-Cheque Vita CD, and by extension, the Livin' La Dolce Vita CD, were not assets of the limited partnership or joint venture which related to the Parramatta Riverside Theatre shows. 307 Mr Sirtes submits that, as Mr Bova's claim has been based purely on a partnership agreement (and fiduciary duty arising out of that arrangement), if on the findings I make there was no more than a joint venture, (or presumably if I find as I have that the CD does not constitute partnership property) then there is no claim made in the proceedings to sustain any relief in relation to the CDs (and merchandise sales). It seems to me that this is correct. 308 If the first CD was not partnership property (ie its creation was not within the scope of the partnership) then any claim to a share in the profits would have to be based either on a separate agreement (of the kind which Mr Bova's evidence suggests there was) or in copyright. No claim in contract (other than under the alleged partnership agreement itself) has been made and any claim in copyright (other than that the copyright was partnership property) was expressly disclaimed. In passing, I note that if there were no agreement for valuable consideration in relation to the making of the sound regarding in the first CD, it might be that Mr Bova owned (and still owns) the copyright in the sound recording by reason of his being a/the maker of the first sound recording (ss 22, 97, 100AD Copyright Act). 309 On the case as pleaded, I do not consider that it is appropriate for me to make any express findings as to the existence of a separate contract in relation to the Livin' La Dole-Cheque Vita CD or as to the ownership of copyright in the CD by anyone other than the alleged partnership. · Business opportunities arising out of their relationship 310 The second question arising in respect of the scope of the (limited) partnership or joint venture between the parties is whether Mr Bova has any entitlement to share in the profits of the national tour/sales of CDs or Te-Nonna merchandise on the basis that these were, in effect, partnership opportunities which it has not open to Mr Avati to usurp for his own benefit. Primarily, this is put as a claim invoking the principles discussed in Canadian Aero Service v O'Malley. (Of course, even if there was no partnership and merely an unincorporated joint venture between the parties, then it is by no means the case that no fiduciary duty would flow therefrom. In UDC, Mason, Brennan and Deane JJ said (at 11-12): The most that can be said is that whether or not the relationship between joint venturers is fiduciary will depend upon the form which the particular joint venture takes and upon the content of the obligations which the parties to it have undertaken. If the joint venture takes the form of a partnership, the fact that it is confined to one joint undertaking as distinct from being a continuing relationship will not prevent the relationship between the joint venturers from being a fiduciary one. In such a case, the joint venturers will be under fiduciary duties to one another, including fiduciary duties in relation to property the subject of the joint venture, which are the ordinary incidents of the partnership relationship, though those fiduciary duties will be moulded to the character of the particular relationship: see, generally, Birtchnell v. Equity Trustees, Executors & Agency Co. Ltd . (1929) 42 CLR 384 at pp. 407-409.) 311 At the time of dissolution of the parties' working relationship, the Lock Up Your Nonna tour had commenced (with bookings going forward for some three or so months); the Livin' La Dole-Cheque Vita CD had been produced as had the Te Nonna t-shirts; and there had been at least some discussion between the parties in which the production of a new CD was contemplated (and to which reference was made in the work schedule attached to Exs K/U). 312 I have already considered the position in relation to the Livin' La Dole-Cheque Vita CD (and by extension the Livin' La Dolce Vita CD). As noted above, I consider that the only partnership Mr Bova has established (and even then I think there is some room for doubt as to whether this was any more than an unincorporated joint venture) was one for the production of the Parramatta Riverside Theatre shows. The arrangements in relation to the Livin' La Dole Cheque Vita CD were, according to Mr Bova himself, discussed separately from the arrangements for the production of the Parramatta Riverside Theatre shows and I have concluded they were indeed subject to a separate arrangement and not property of any partnership between the two. 313 Mr Russell submits that both the national tour and the foreshadowed new CD (ultimately called the "Live & Unpluggato" CD) were business opportunities being pursued by the "partnership" at the time of its dissolution. (a) National Tour 314 Reliance is placed on Mr Avati's evidence that the national tour did not require much by way of advertising as evidence that the show had developed its own promotion (and was in substance the same "show" as that on which Mr Bova had collaborated). The national tour did not, according to Mr Avati, use material from the Livin' La Dole-Cheque Vita CD and its expenses were paid for from both the SUBC and LEM accounts (thus out of profits from CD sales and previous shows). 315 The fact that Mr Bova may (as he says) have referred to touring in Canada, (as in paras 52 and 103 of his 28 February 2006 affidavit) or even have suggested a "national tour" cannot in my view render later tours in Canada or within Australia business "opportunities" in which Mr Bova could have had a legitimate entitlement to share, given that those shows were conducted separately from and well after their initial Parramatta Riverside Theatre show joint collaboration and do not seem to have arisen from that collaboration other than in the sense of being discussed as the next 'step'. Similarly, the fact that the national tour did not require much advertising expenditure (because the CD had raised Mr Avati's profile) does not lead me to conclude that the national tour was a business opportunity arising from, or any wrongful use of connections made during, their working relationship. 316 On the view I have formed as to the limited scope of the joint venture between the parties, I do not see any basis on which Mr Bova would be entitled to share in the profits of the national tour. 317 The claim made by Mr Bova in this regard is based on the agreement invoking the corporate opportunity doctrine as recognised in the United States and applied in Canadian Aero Services v O'Malley. In that case Laskin J delivering the judgment of the Court of Appeal for Ontario said (at [43]): In my opinion, the fiduciary duty upon [the defendants], if it survived their departure from Canaero, would be reduced to an absurdity if it could be evaded merely because the … project had been varied in some details when it became the subject of invited proposals … . I do not regard it as necessary to look for substantial resemblances. Their presence would be a factor to be considered on the issue of breach of fiduciary duty but they are not a sine qua non . The cardinal fact is that the one project, the same project which [the defendant] had pursued for Canaero, was the subject of his Terra proposal. It was that business opportunity, in line with its general pursuits, which Canaero sought through [the defendants]. There is no suggestion that there had been such a change of objective as to make the project for which proposals were invited from Canaero, Terra and others a different one from that which Canaero had been developing with a view to obtaining the contract for itself. 318 Laskin J further said (at [51]): Liability of [the defendants] for breach of fiduciary duty does not depend upon proof by Canaero that, but for their intervention, it would have obtained the Guyana contract; nor is it a condition of recovery of damages that Canaero establish what its profit would have been or what it has lost by failing to realize the corporate opportunity in question. It is entitled to compel the faithless fiduciaries to answer for their default according to their gain. Whether the damages awarded here be viewed as an accounting of profits or, what amounts to the same thing, as based on unjust enrichment, I would not interfere with the quantum. 319 Is this a case where, in the words of Laskin J (at [25]), Mr Avati has usurped for himself or diverted to another person or company with whom or with which he is associated: … a maturing business opportunity which his company is actively pursuing; he is also precluded from so acting even after his resignation where the resignation may fairly be said to have been prompted or influenced by a wish to acquire for himself the opportunity sought by the company, or where it was his position with the company rather than a fresh initiative that led him to the opportunity which he later acquired. 320 (I should note in that regard that I am by no means convinced that the termination of the business arrangements by Mr Avati was motivated by a desire to divert to himself the opportunity of the national tour.) 321 Had I found a partnership of the scope pleaded, then any "maturing business opportunity" from which Mr Avati should be restrained from usurping to himself would at best have been limited in my view to the shows already booked for the national tour at the time of termination of the "partnership" (whether the test to be applied was that of an "interest or expectancy" in the opportunity or a "line of business" or "fairness" test). Just as a partner would not generally be restrained (absent an enforceable restraint of trade covenant or the like) from utilising his or her skills or knowledge after leaving the partnership business, I find it difficult to see that (absent a claim that the copyright in the comedic routines themselves was partnership property) Mr Avati could be restrained from pursuing his comedy career or performing the "maturing" show beyond the shows already organised at that stage. 322 Therefore, had I found that there was a partnership of the kind alleged by Mr Bova (and not a joint venture or partnership which was, as I have found, limited to the promotion and production of the Parramatta Riverside Theatre show and any subsequent individual shows or performances as agreed from time to time), I would not have found that the national tour constituted business opportunities arising out of the partnership such as to preclude Mr Avati from making use of those opportunities for himself (other than at most for the profits arising out of the bookings which were existing at the time of termination of the relationship). (b) Live & Unpluggato CD 323 As far as the "Live & Unpluggato" CD is concerned, Mr Avati does not deny that there may have been a discussion about how he was going to start thinking about other products he could produce but denies discussion as to the making of a new CD and says the name for it "came about after it was recorded" (T 417). He says the reference in the work summary was not a specific reference to the particular CD (T 418). 324 Although the recording of the Live & Unpluggato CD on 13 August 2001 (T 418) took place less than a month after termination of working relationship with Mr Bova, the significance of this seems to me to be low, given that the CD was simply based on a live recording and seems able to have been produced relatively quickly without reference back to any recordings by Mr Bova. (I note there is no issue as to Mr Bova having any claim for copyright in respect of this CD.) 325 Mr Sirtes submits that even if there was an "overarching" partnership (which is denied) this was post-partnership property (not being produced until after July 2000) and not properly arising from any opportunity that existed during the relationship which ended on 13 July 2000. (It was submitted that this was no different from all other endeavours undertaken by Mr Avati after 13 July 2000.) 326 It seems to me that the Live & Unpluggato CD is well outside the original CD agreement and would not in my view fall within the scope (or be an opportunity arising out) of the original and relatively limited joint venture or partnership between the two. (c) Te Nonna t-shirt 327 As to the Te Nonna t-shirt, the evidence was limited. I am not satisfied that it formed part of the limited partnership or joint venture between the parties. It seems most likely that some informal arrangement was reached between the two as to its production but I do not consider the evidence establishes precisely what that was and, in any event, no claim is made on that basis. Furthermore I do not understand any basis for Mr Bova to assert any copyright in the artistic work represented by the photograph applied to the t-shirts if, as Mr Avati asserts, the photograph was taken by someone else (a Mr Bloom). In any event, any claim of that kind was expressly disavowed and I make no finding in this regard. 328 I do not consider the Te Nonna t-shirt to be a maturing business opportunity of any partnership/joint venture between the parties. (iii) Relief · Further enquiry? 329 The third issue, on which I invited supplementary submissions from the parties, relates to whether (if an entitlement on the part of Mr Bova were established) any further account or determination of profits should be made. 330 The relevance of this issue arises as follows. 331 The proceedings were commenced in August 2001. There were various interlocutory stoushes in relation to particulars and discovery; and various subpoenas issued by Mr Bova. The proceedings were set down for hearing in both November 2007 and again in June and then July 2008. Those hearing dates were vacated for various reasons. The matter was ultimately again set down for hearing, this time before me, commencing on 17 November 2008. 332 An application for adjournment made in early October 2008 was refused by me for the reasons set out more fully in my later reasons for judgment published on 29 October 2008. The hearing duly commenced on 17 November 2008 and proceeded as outlined earlier. During the course of one or more of the occasions when the matter came before the court prior to the trial, and again at the hearing, the issue was raised as to whether Mr Bova was required to put before the court his evidence on damages as well as liability. 333 Relevantly, when the matter had been before Young CJ in Eq (as his Honour then was) in mid 2008 (at which time his Honour vacated the November 2007 hearing dates then fixed), there seems to have been a discussion as to the basis on which the matter would again be fixed for hearing. The issue was directly raised in discussion with counsel then appearing for each of the parties as to whether the matter was to be listed for a hearing as to damages as well as liability. 334 On that occasion, draft short minutes of order were handed up to his Honour. Those draft orders included paragraph 3, which contemplated that there be a separate trial of the issues (if any) arising under paragraphs 18, 19 and 22 of the Further Amended Statement of Claim and the prayers for relief to be determined by an Associate Judge on a date to be fixed. 335 Paragraph 3, as it had been in the draft handed up to his Honour, provided: The issues for trial set down from 26-30 November 2007 before Young CJ in Eq be confined to the issues in paragraphs 1-17, 20 and 21 of the Further Amended Statement of Claim and paragraph 23 of the Amended Defence to the Further Amended Statement of Claim, to the intent that the remaining issues (if any) including the issues arising under paragraphs 18, 19 and 22 of the Further Amended Statement of Claim and the prayers for relief, be determined by an Associate Judge on the date to be fixed. 336 Paragraphs 18 and 19 of the pleading as it then stood related to the alleged failure of the defendant to account for the profits "made by him from exploiting the works" or "of the said partnership business". 337 Paragraph 22 was the claim that the plaintiff has suffered loss and damage. The prayers for relief included an order that there be a taking of accounts of the partnership and for the appointment of a receiver to the undertakings, assets and property of the partnership business. 338 His Honour seems to have indicated to the parties that if he were then to vacate the hearing dates that would only be on the basis that both aspects of the case would be addressed in the one hearing: McHUGH [appearing for Mr Avati]: I can hand up proposed short minutes … Paragraph 3 was intended to identify which issues should be determined by your Honour, but I should make clear that the paragraphs listed there would involve your Honour in determining what were the assets of the partnership and whether or not there had been a misleading or deceptive conduct breach. So that there is no misunderstanding, the representation pleaded is that the defendant represented that he was the sole author of each of the artistic literary and dramatic works created by the partners and the question of whether that is misleading and deceptive turns on whether or not he was, therefore, your Honour can't avoid that. HIS HONOUR: Do I cross 3 out? McHUGH: No. HIS HONOUR: What is the sense of confining the issues if I have to deal with it anyhow? McHUGH: It is quantification and my friend has not put on any evidence. (My emphasis) 339 His Honour struck out the proposed paragraph 3 and there followed this exchange with counsel: SNEDDON: In relation to 26 November, the only issue being the assessment insofar as the accounting exercise, was your Honour minded to hear that? The assessment of that is going to be potentially bigger than Ben Hur because Mr Avati has been all over the world doing his acts for a considerable period of time and it is going to be very problematic getting that evidence on. HIS HONOUR: The Associate Justice hasn't got time to do all this sort of thing so we might do it all at once. SNEDDON: We won't be in a position to do it in November. In relation to the assessment issue, if it runs, and I don't think my friend would disagree, it will take longer than five days. I hear what your Honour is saying in relation to the workload of the Associate Justices. Maybe the appropriate course is to refer it out. HIS HONOUR: Do you agree to that? The third party expert will be $400 an hour and if your total damages are $100,000 it doesn't really make much sense. How much is involved? SNEDDON: I am instructed potentially in excess of millions. We would ask that the November hearing cover the partnership/property/breach issues and that the accounting exercise be referred out. HIS HONOUR: If you agree on that I will do it, but if you can't agree on it we will just hear the case for as long as we have got time for it and if we don't have time to finish it, it will go over. McHUGH: Your Honour, the position is that the parties had attempted to agree what might happen, but, having heard what your Honour said this morning, we are content to proceed on the basis that we attempt to deal with everything. My friend hasn't completed his evidence on that and if he does put on further evidence then it may be necessary for us to respond to that because we have never responded to that part of his claim. Certainly I would need to take instructions, but I would be most unlikely to agree to a reference with the costs in this kind of case. I don't know that it would take five days. It would really probably be the clash of two accounting reports. HIS HONOUR: I think in this sort of case you try to hear everything. ... MATTER STOOD IN LIST TO ALLOW MR SNEDDON TO TAKE INSTRUCTIONS ON ADJOURNMENT APPLICATION SNEDDON: Your Honour, the position is that the parties have conducted themselves on the basis that in November there is the partnership issue, the property issue, the breach issue, but not the assessment in relation to an accounting exercise. We can't meet that in November. We are desirous to maintain the hearing dates and the possibilities are, subject to your Honour, that the quantification issue be referred out to an expert or, alternatively, that the hearing date be vacated because the parties have conducted themselves on the basis that we weren't going to run that exercise . ... McHUGH: Your Honour, we are unaware of amounts of that order. We oppose any suggestion of the issue being referred out to anyone. I can't point to any specific prejudice in relation to November if an adjournment is wanted by the plaintiff, but it will be necessary ultimately for the accounting issue to be resolved. We have no objection to going as far as we can in November, but it would be preferable to have all matters heard at the same time and if the plaintiff formulates categories of discovery we will endeavour to give as much of that as quickly as we can . (My emphasis) 340 Following the above exchanges, his Honour vacated the hearing dates then fixed before him on 26-30 November 2007 and made short minutes of order as initialled by him dated and placed with the papers. Those short minutes had been amended, relevantly, to delete paragraph 3 of the typewritten draft handed up to his Honour. It can be observed therefore that at that stage both counsel and his Honour appeared to be anticipating that the quantification issue would be dealt with at the hearing. 341 Since the matter has been before me, Mr Sirtes has taken the position, as I have understood it, (understandably in light of the transcript of the 15 August 2007 exchange with his Honour) that this hearing was to deal with the issues both of liability and quantification (both of any equitable compensation or any profits for which Mr Avati might be required to account). That seems to me to be an assumption fairly to be drawn from what was said to, and by, his Honour in August 2007, although no formal direction was made to that effect. Counsel appearing for Mr Bova on that occasion (Mr Sneddon) was briefed in this matter up until some time in mid to late 2008 (the return by him of his brief for the hearing being the basis on which in October 2008 the unsuccessful application to vacate the November 2008 hearing dates was made). Indeed, Mr Sneddon appeared on that application. Therefore, as at late 2008 Mr Bova's then counsel must have assumed that the hearing was to encompass both liability and quantum aspects. 342 Mr Bova, it seems to me, has been on notice since August 2007 that any material in relation to the relief sought by him needed to be made available at the final hearing. Mr Russell, who was briefed only shortly before the November hearing, was squarely put on notice of Mr Sirtes' position and conducted the case before me on the basis that (though he clearly noted his intention to submit otherwise) he might be required to adduce all evidence going to the question of relief and he cross-examined at some length (giving rise to the need for further hearing time beyond that allocated in March 2009) in order to make out his client's case in relation to damages/profits. 343 It was submitted by Mr Russell that it could never have been contemplated by Justice Young on 15 August 2007 that the process of taking accounts from the partnership, or any order for an account of profits, be determined or finalised during the hearing. Mr Russell contends that until the court rules on the scope of the alleged partnership, no order for the winding up and taking of accounts of the partnership could be made. I am not convinced that this would necessarily be the case. The parameters of the pleaded partnership were clearly defined and there seems in theory no reason why evidence as to the profits of that partnership could not be before the court. It is said that such a process could not realistically be undertaken in circumstances where the partnership, its terms, its property and its assets are in dispute (and where the ordinary process of hearing and determining vouchings, falsifications and surcharges could not readily be conducted in the context of the present hearing). That submission was, however, made without the benefit of the transcript (extracted above) which suggests the opposite. 344 Mr Russell maintains that Mr Avati is a defaulting and dishonest fiduciary and for that reason an account is warranted. I do not accept that any charge of dishonesty can fairly be laid at Mr Avati's door. If I had found that there was an overarching partnership, of the kind pleaded, Mr Avati could well be said to have been a defaulting fiduciary but this could as easily be due to a mistaken view as to his obligations as to dishonesty and no allegation of dishonesty was pleaded. 345 Mr Sirtes contends that, having regard to ss 56 and 60 of the Civil Procedure Act 2005, a further enquiry is not justified and that to visit any further enquiry on Mr Avati would work an injustice (Mr Bova having already had nine years properly to prepare his case). 346 Mr Russell, in closing oral submissions, sought leave in effect to re-open his case to read an affidavit from Mr Avati's solicitor, Michael Gerard Coffey, sworn in March 2008 which was apparently read on the hearing before Hammerschlag J on 19 March 2008 of a motion by Mr Bova for further discovery. I rejected that application (which was opposed by Mr Sirtes). 347 Mr Russell now submits that it would be unjust for the court to have regard only to the orders of Justice Young made 15 August 2007 in deciding whether or not there ought be further enquiry before determining any account or equitable compensation, without having regard to the actual subsequent events in relation to the discovery contemplated by those orders. It is said that this does not involve or require a review or reconsideration of the unsuccessful discovery motion before Hammerschlag J in March 2008. 348 In effect, what Mr Russell submits is that (putting to one side the mechanics involved in orders for taking accounts or an account of profits) Mr Bova would not now be seeking any further enquiry for an account or determination of profit or equitable compensation is made, had Mr Avati discovered all documents sought in the Supplementary Categories (Exhibit T) or produced all documents in answer to the Notice to Produce (Exhibit S). 349 Had the submission been put solely on the basis of the asserted impracticality, prior to a ruling on the scope of the partnership, of making a determination of profit or equitable compensation, I would have been of the view that it should be rejected, having regard to the history of the matter to date and the basis on which the November 2007 hearing dates were vacated (in part at least on the absence at that stage of evidence by Mr Bova as to the quantum of his claim, then said to be in the order of millions but, before me, put at a much more conservative figure). There is material before me (however incomplete) on which such an assessment could be made (albeit in perhaps a very broad brush fashion) and Mr Bova has had ample time to put forward his case in that regard. 350 Does the manner in which Mr Avati has conducted his defence change that position? 351 I accept that Mr Avati's answers to the requests made for particulars of his amended defence (conveyed by letter dated 13 March 2009 from his lawyers – Annexure B to Mr Avati's affidavit of 24 March 2009) were not particularly enlightening in relation to the corporate structure by which Mr Avati's performances/CDs or products were sold (and, at least in one instance, Mr Avati corrected in the witness box answers he had given by drawing a distinction between what he personally had done and what he, as a director of Comedy Corner had done – see T 464 ff). Mr Avati, for example, said that the "Live & Unpluggato" CD was never personally sold overseas by "Joe Avati" though conceding it was sold overseas by Comedy Corner Limited UK (from September 2001) (see affidavit 24 July 2008). However, the explanation Mr Avati gave for the way in which he gave at least some those answers seemed not implausible (albeit from an uncooperative stance not to be encouraged in light of the way litigation should be conducted in this Court). 352 In other respects, Mr Avati's evidence itself bordered on the absurd – when asked to explain his responses to the request for particulars as to the sale by him since July 2000 of CDs and t-shirts: "Me personally? Now lets define this because we need to because are you saying I am sitting at a desk handing over a CD and collecting cash and putting it into my pockets" (T 405). It seems to me highly unlikely that, with the benefit of legal advice (which I assume Mr Avati had, since the response to the request for particulars came from his solicitors) as to what requests for particulars meant, there could have been any doubt that a question as to whether he the defendant had "sold" CDs/merchandise was not limited to a question as to whether he had physically sat at a desk at the venues, taking cash and handing over the CDs. 353 Nevertheless, on that basis alone I would not have been inclined to consider a further enquiry warranted. But for the issue of discovery, therefore, had I found for Mr Bova on his partnership claim(s) I would still have thought that no further account or enquiry was warranted at this stage and the quantum of any profits/compensation would have to be determined on the evidence already before the court. I therefore turn to the complaint made as to the issue of discovery. 354 The complaint made as to discovery is that, other than the production of the Comedy Corner's 2000 and 2001 financial statements and tax returns, Mr Avati has neither discovered nor produced any documents that would show the profits of the Lock Up Your Nonna national tour or sales or profits (Australia and overseas) of the Livin' La Dole-Cheque Vita and Live & Unpluggato CDs or Te Nonna t-shirts as sought by the Further Supplementary Categories of Discovery served pursuant to the orders made in August 2007 by Young CJ in Eq (Ex T) and a Notice to Produce (Ex S). 355 Mr Avati accepted that he had not produced any such documents (T 470.8-39) on discovery. There was nothing further produced when the Notice to Produce was called upon in court. 356 It is submitted by Mr Russell that documents within the possession of the various entities or individuals through or by whom Mr Avati's shows were produced or material (CDs/t-shirts) distributed after July 2001 (including Comedy Corner, Comedy Corner Jersey, Comedy Corner UK, Platinum Trust, ShowUs Entertainment and Tillandsia) are documents within the "possession" of Mr Avati for the purposes of discovery and compliance with the Notice to Produce. 357 Mr Avati's evidence, in that regard, was that documents relating to the sales in Australia or overseas of the two CDs for the period from September 2001 (while it held the rights thereto) would be held by the Jersey company. He accepted that no request had been made of Mr Jackson or Mr Evans (the individuals identified as being in a position of control in respect of the Jersey entity) for the documents. Mr Avati, when asked, said he would not expect a refusal of any such request (T 433.14 – 4345; 435 – 436.10). 358 It was said that it was reasonable to infer that any relevant documents in the physical possession of companies controlled by Mr Avati's brother (who gave evidence in the proceedings, but was not questioned as to the existence of any such documents) or uncle (Comedy Corner and ShowUs Entertainment respectively) would also be produced to Mr Avati on request. (Mr Avati's evidence was that he had requested documents from his brother and there were none - T 439.) 359 There is some controversy as to whether the obligation to give discovery extends to the making requests of related entities for documents which they would likely produce upon request. The weight of authority suggests that it does not and that the obligation (in relation to documents held by third parties) extends only to documents which the discovering party has a presently enforceable legal right (or, perhaps, an actual and immediate ability) to obtain for inspection. (That said, in certain circumstances a direction (sometimes called a "Sabre order") may be made that a litigating party request documents from a related third party.) 360 It seems reasonably clear that a document in the possession of a non-party, is not within the litigating party's "power", absent a presently enforceable legal right to obtain the document, even if it is likely that (if a litigating party so requested) the non-party would produce the document to the litigating party. 361 This proposition finds support in the speech of Lord Diplock in the House of Lords in Lonrho Limited v Shell Petroleum Co Limited [1980] 1 WLR 627, in which his Lordship said: … in the context of the phrase "possession, custody or power" the expression "power" must, in my view, mean a presently enforceable legal right to obtain from whoever actually holds the document inspection of it without the need to obtain the consent of anyone else. Provided that the right is presently enforceable, the fact that for physical reasons it may not be possible for the person entitled to it to obtain immediate inspection would not prevent the document from being within his power; but in the absence of a presently enforceable right there is, in my view, nothing in Order 24 to compel a party to a cause or matter to take steps that will enable him to acquire one in the future. … It may well be that such consent could be obtained; but Shell and B.P. are not required by Order 24 to seek it, any more than a natural person is obliged to ask a close relative or anyone else who is a stranger to the suit to provide him with copies of documents in the ownership and possession of that other person, however likely he might be to comply voluntarily with the request if it were made. 362 This passage has been cited frequently in support of the definition of "power" found within it, notwithstanding Lord Diplock's opening comment that: The circumstances which have given rise to the disputes about discovery are quite exceptional; they are unlikely to recur in any other case and, for that reason, they do not in my view provide a suitable occasion for any general disquisition by this House upon the principles of law applicable to the discovery of documents. 363 In his written submissions, Mr Russell notes that possession for the purposes of the Uniform Civil Procedure Rules includes "custody and power" by virtue of s 3 of the Civil Procedure Act (and s 11 of the Interpretation Act 1987). He goes on to state that possession includes those documents "which the party would be likely to obtain if it made a request to the owner of the documents: see [21.3.20] of Ritchie's Uniform Civil Procedure NSW and the authorities cited therein". The relevant part of Ritchie's currently provides that: … discoverable documents include those… which the party would be likely to obtain if it made a request to the owner of the documents: Sabre Corp v Russ Kalvin's Hair Care (1993) 46 FCR 428 at 432; 124 ALR 400; Palmdale Insurance Ltd (in liq) v L Grollo & Co Pty Ltd [1987] VR 113 at 115). 364 The cited page of Sabre Corp v Russ Kalvin's Hair Care (1993) 46 FCR 428 does not support the proposition that such documents are within the possession of a party (and therefore discoverable), but rather deals with the circumstances in which an order will be made that a party take steps to bring documents within its possession. To the extent that Marks J suggested in Palmdale Insurance Limited (in liq) v L Grollo & Co Pty Ltd [1987] VR 113 that documents which a party would be likely to obtain if it made a request (but which it had no presently enforceable legal right to obtain) are within its power, that proposition has been doubted (Theodore v Australian Postal Commission [1988] VR 272 at 277 per Murphy J; Mount Lawley Pty Limited v Western Australian Planning Commission (unreported, WASC, 19 March 1999) per Bredmeyer J who preferred Marks J's "wider view" but found it to be contrary to binding authority; Spedley Securities Limited (in liq) v Bank of New Zealand (1992) 6 ACSR 571 per Cole J agreeing with Murphy J's analysis in Theodore) and is inconsistent with the majority of cases which have adopted formulations similar or identical to that found in Lonrho (see Midalco v Simpson (unreported, Supreme Court of Western Australia Full Court, 5 June 1987) per Burt CJ, with whom Pidgeon J agreed, cf Wallace J in dissent; Theodore at 277 per Murphy J; Douglas-Hill v Parke Davis Pty Limited (1990) 54 SASR 346 at 350-352 per Duggan J; Roux v ABC [1992] 2 VR 577 at 589 per Byrne J; Taylor v Santos Limited (1998) 71 SASR 434 at 437-438 per Doyle CJ, with whom Prior J agreed; Absolute Analogue Inc v Sundance Resources Limited [2008] WASC 259 at [27]-[30] per Le Miere J). 365 In Taylor v Santos (one of the relatively few appellate judgments on the subject) Doyle CJ suggested that caution should be exercised in extending the definition of power beyond the Lonrho formulation: In my opinion the court should be cautious in extending the concept of power beyond the concept of a presently enforceable legal right, even though it may be appropriate to do so. Reading r 58 as a whole, my view is that the obligation to discover a document is limited to a document that the person in question has the legal power or (I can think of no better expression) actual and immediate ability to inspect, even though the document is the property of or is held by another person. That power or ability might exist in relation to a document that a person is not able to produce for inspection to a third person, for example a document in which a person has joint property with another person. But, in my opinion, the obligation to discover hinges upon having a right or actual and immediate ability to examine the document. A person does not have that right or actual immediate ability if the person is able to inspect the document only if a third person, who has control of the document, agrees to permit inspection, or agrees to refrain from so exercising that person's control as to prevent inspection. … The point I wish to emphasise is that to the extent that the concept of power extends beyond a presently enforceable legal right, it should be held to so extend only when the court can say that the person in question does have the actual immediate ability to inspect the document. 366 Whether the order(s) for discovery in this case was (or were) made under the Supreme Court Rules or the Uniform Civil Procedure Rules, the discovery obligation would have extended to serving a list of documents which were no longer (but which had been no later than six months prior to the commencement of the proceedings) within Mr Avati's possession. This would presumably encompass the period of time when Mr Avati was a director and sole shareholder of Comedy Corner. Any documents within his possession (including his power or custody) in either of those capacities would be discoverable and (to the extent that there was reference during Mr Avati's cross-examination to his brother having thrown out certain unspecified documents, if discoverable documents had been destroyed disclosure would have had to have been made of that fact). It is not clear, however, what Comedy Corner may have had in its possession at the relevant time which should have been discovered, particularly given the vagueness of the evidence as to the restructuring of the entities involved in Mr Avati's career. 367 As to the various foreign entities, I do not know that there is evidence before me that would support a finding that there is a presently enforceable legal right reposing in Mr Avati to production of any relevant documents they may hold. The position may differ as between the various entities and individuals involved. If, for example, Ms Spano is Mr Avati's agent, that would presumably give rise to a presently enforceable legal right on his part to production of relevant documents thought it is not clear what documents she may have. However, it may be that, strictly speaking, Ms Spano was the agent of, say, Comedy Corner or ShowUs Entertainment or Tillandsia at the relevant time(s). Insofar as Mr Russell complains that the figures in Exhibit M were obtained from an MYOB file within the possession of Mr Cassim which was never discovered, that file may have been something within Mr Avati's power, but Mr Cassim's firm was served with a subpoena to produce documents and there was no challenge to the adequacy of production of documents in answer to that subpoena. 368 On the evidence before me, I do not consider that I could make a finding that there has been non-compliance by Mr Avati with his discovery obligations, even if I were to have read Mr Coffey's March 2008 affidavit (which it is submitted deposed to the fact that Mr Avati did not discover documents of companies of which Mr Avati was not a director or shareholder or were excluded documents under r 21.1(c) of the UCPR). 369 However, had I been persuaded that Mr Avati had (or was likely to have) failed to comply with his discovery obligations, then a presumption contra spoliatorem might have applied to warrant the adoption of a relatively broad brush approach to the calculation of damages, assuming that the evidence not produced would have been favourable to Mr Bova. 370 As to whether a Sabre order would have been appropriate, I note that in SPI Spirits (Cyprus) Limited v Diageo Australia Limited (No 2) (2006) 155 FCR 150, Edmonds J, who had made an order for third-party discovery against foreign entities (which decision was overturned on appeal) and so did not strictly need to consider the possibility of a Sabre order, said the following: First, there must be a real likelihood that the party … who is to take steps to obtain access to and discover the documents which are in the possession, power or control of a third party, would be given access to the documents upon request: See Sabre at 432–433. This likelihood must be established by evidence: Gambro at [8], [17]–[19] … Second, there must be a likelihood that the documents sought are in fact in existence in the possession of the third party … Third, the form of order in para 5 is otherwise inappropriate. In particular, the word 'reasonable' in the phrase 'take all reasonable steps' has been omitted from the usual form of order. … I agree … that it would be preferable for any such order to set out explicitly the steps which, if taken, would satisfy the order. 371 His Honour added a final consideration (not applicable here) that such an order should be considered, if at all, only after inter partes discovery has taken place, based on appropriate evidence as to the likelihood of existence and provision of documents, and by reference to far more targeted and specific requests for documents, consistent with the authorities on such orders. 372 To that list of considerations should be added the consideration referred to by Giles J in Aetna Pacific Securities Limited v Hongkong Bank of Australia Limited (unreported, 29 April 1993) as to whether or not the documents are necessary for disposing fairly of the proceedings. 373 The ability of the court, in appropriate cases, to direct a party to take reasonable steps to procure documents from a non-party was considered in Sogelease Australia Limited v Griffin [2003] NSWSC 178, where Palmer J said (at [37]): This Court has power to give such directions as the Court sees fit, whether or not consistent with the Rules "for the speedy determination of the real questions between the parties to civil proceedings". That section has been held to empower the Court to direct a party to take reasonable steps to procure documents from a non-party, even when it was not clear that the party had a presently enforceable legal right to compel production or inspection from the non-party: see eg Palmdale Insurance at 116-117; Burgundy Royale Investments Pty Ltd v Westpac Banking Corp (unrep, Federal Court 21 February 1990 per Foster J; BC9003178); and esp. per Giles J in Aetna Pacific Securities Ltd v Hong Kong Bank of Australia Ltd (unrep., NSWSC 29 April, 1993; BC9301701 at p12). 374 Mr Russell relies upon Mr Avati's concession in cross-examination that the trustees based in Jersey (or the UK) would be likely to comply with a request by him for production of documents that may or may not be the case. Mr Avati's answers sounded to me like speculation on his part. In circumstances where the evidence as to the precise nature of the legal relationship between Mr Avati and the various foreign entities was hardly illuminating, I do not know that I could presently be satisfied that there was a "real likelihood" that the documents would be produced, as referred to by Edmonds J in SPI Spirits. 375 That said, in circumstances where, subsequent to the commencement of the litigation, Mr Avati seems to have put outside Mr Bova's immediate reach any documents which may exist in relation to the quantification of Mr Bova's claim (other than those limited documents which have apparently been produced to date), the interests of justice might well require that some other order be made, which might have the necessary coercive effect on Mr Avati. At the very least, it seems to me that Mr Avati could be compelled to produce documentation relating to his relationship with the various foreign entities so as to enable a determination to be made as to whether he does or did have any presently enforceable legal rights to obtain relevant documents. 376 On balance, had Mr Bova succeeded in establishing an "overarching" partnership as pleaded, and had I been satisfied that the profits of the national tour (beyond the three month booked period) were profits for which Mr Avati should account, I would have been minded to assess equitable compensation based on the information before me of both the national tour and the local CD sales but to allow (at Mr Bova's election) an account as to the profits of the overseas CD sales and to consider the making of either a Sabre order or an order of the kind foreshadowed above to facilitate that process in respect of those parties of whom I could be satisfied that there is a real likelihood they would produce documents upon request. 377 However, in terms of the relief to be granted in light of the findings, no claim for an account of profits arises. · Equitable compensation 378 Mr Russell accepted that the position in relation to any further enquiry might differ, depending on whether an election was made for equitable compensation or for an account of profits, readily conceding that the former could more easily be assessed on the material before the court. 379 Mr Russell submitted that were I to find for Mr Bova on liability, but not be prepared to grant a further enquiry as to the issue of quantification, I should find for Mr Bova on damages in the sum of $107,802, being 50% of the estimated profits for July-September 2000 (as per Ex M) with an assumption as to quarterly averaged expenses based on the figures as they appeared from the materials before me, plus an estimated amount for later years to bring the equitable compensation in total to not less than $496,734 plus interest. 380 Mr Cassim's letter dated 18 December 2000 to Glenn Ford from Prime Financial Services (Ex M) referred to revenue of $316,895 that, it is submitted, could relate only to revenue derived from the "Livin' La Dole-Cheque Vita" CD, "Lock Up Your Nonna" national tour and Te Nonna t-shirt. Mr Avati accepted in cross-examination that that figure for the first quarter of 2001 looked about right. (It seems to have been conceded that the Te Nonna t-shirts sales would have been minor on any accounting of sales (T 513).) In terms of quantification of the cost of recordings or production of the t-shirts, this seemed to be low compared to the sale price (but there were various unknown factors which I am told means the cost cannot be simply quantified) (T 463/465). 381 As to the evidence of lost profits or damages which was adduced, Mr Russell relies on the following: (i) Ex K, indicating that the revenue for ticket bookings from 25 April 2000 – 8 July 2000 was in the sum of $347,040 and that CD sales and merchandise (the Livin' La Dole-Cheque Vita CD and the Te Nonna t-shirt) were then estimated at another $100,000; (ii) Ex M, which stated that the turnover for Comedy Corner for the eight months from April to December 2000 was approximately $600,000 based on Mr Avati's advice (and that turnover based on records available to his accountant for the period 1 July 2000 to 30 September 2000 was in the sum of $316,895, a figure which Mr Avati accepted could be right (T 390.45 – 392.5)). 382 Mr Russell says this suggests a yearly turnover from the national tour and CD/merchandise sales in the range of $900,000 to $1.27 million. (Mr Avati's salary from Comedy Corner for 2000 was $50,000 (even though Comedy Corner had been incorporated for only approximately six weeks of that financial year) and for 2001 was $60,000.) 383 Mr Russell submits that, as the Live & Unpluggato CD was only released in November 2000, and it had no other revenue, the Comedy Corner figures for the first quarter of the 2001 financial year must have related only to revenue from the revenue from the Lock Up Your Nonna tour, Livin' La Dole-Cheque Vita CD and Te Nonna t-shirts. There was evidence that as at May 2000, Mr Avati had anticipated that the revenue for CD sales and merchandise would be in the order of $100,000 seemingly for the year ahead (Exs K/U). It is not clear whether this was confined to the Livin La Dole Cheque Vita CD and Te Nonna t-shirt or included anticipated sales of any new CD of the kind that the Work Summary prepared at that time had in contemplation. Mr Avati's evidence in the witness box (as I noted it) was that ordinarily the release of a new CD would reduce sales of earlier CDs by about 90-95%. However, there is no evidence by which I could test that assertion. 384 It was submitted that the financial statements for 2001 disclosed income of $456,270 and that this was $96,924.90 less than the "banked" income disclosed in the bank statements. 385 The Comedy Corner bank statements disclosed credits for the 2001 financial year of $553,194.90 (including $235,034.31 for the first quarter) excluding interest. Mr Avati accepted that all income of Comedy Corner (apart from CDs and show sales) was paid into its bank account (T 392). By comparison with Ex M it was submitted that the "banked" income was only about 75% of the real income in that period. A similar analysis was carried out for the 2002 financial year Comedy Corner financial statements and bank statements (which it is said included the last banked revenue for the national tour). 386 On that basis, it was submitted that neither the figures for income disclosed in the 2000, 2001 and 2002 financial statements as income nor the figures for banked earnings in the accounts for those financial years should be accepted as accurate and that they should be taken as something less than the true income derived or received from the Lock Up Your Nonna national tour, sale of the two CDs and the Te Nonna t-shirts. 387 Reliance was also placed on the handwritten reconciliation figures for the national tour shows on 12, 13, and 14 May 2000 (ie before the termination of the working relationship) of which it was said the total income was $21,480, of which $4,180 or 19% was cash (the evidence being that not all cash receipts were banked – T 327.15-24; T393.45 – 394.4). 388 Using the turnover figure for the first quarter of the 2001 financial year (ie July to September 2000) from exhibit M and the quarterly average of the expenses for that financial year, Mr Russell calculated the amount of profit derived from sales of the National Tour shows, the 'Livin' La Dole Cheque Vita' CH and the 'Te-Nonna' t-shirt was $215,604, as being turnover of $316,895.00, expenses of $101,291.00, leaving a profit of $215,604.00, 50% of which for the quarter is $107,802. 389 For the remainder of the 2001 financial year and up to the conclusion of the national tour in July 2001, it was said that the release of the "Live & Unpluggato" CD increased the relevant income and that it was reasonable to infer that the profit derived from sales of the national tour shows, the "Livin' La Dole Cheque Vita" CD, the "Live & Unpluggato" CD and the "Te-Nonna" t-shirt would have been at a rate not less than the profit derived in the first quarter of the 2001 financial year referred to above. Accordingly, the profit for the period of October 2000 to June 2001 was calculated by Mr Russell at not less than $646,812, 3 x $215,604.00 = $646,812.00, 50% of which is $323,406. 390 As to the remainder of the national tour, completed July 2001, and the 2002 financial year, the following calculation was made: (a) the 2002 financial statements disclose income or turnover for the national tour of $77,058 and for CD sales of $79,526, giving a total of $156,584 (b) in light of the discrepancies outlined above between the financial statements, bank statements and other documents, as well as the significant receipts by way of cash, it is said it is reasonable to adopt a figure of $195,730 as income or turnover for the remainder of the National Tour and sales of CDs, which represents an increase of 25% on the figures referred to in (a); (c) applying a profit percentage of turnover derived from the calculation in paragraph 388 above, namely 69%, the profit derived from the remainder of the National Tour and sales of CDs of $135,053, was calculated as being 69% of $195,730 ($135,053), 50% of which is $67,526. 391 This calculation entails considerable logical difficulties not least of which being that it assumes constant cash flow in an industry where that may be unlikely and relies upon extrapolation from documents which are themselves contradictory and of dubious reliability. However, in circumstances where Mr Avati has not suggested an alternate methodology and has not put before the court the objective documents from which a more accurate calculation could be made, I would have been prepared to adopt Mr Russell's submissions as a reasonable means of approximating the relevant amounts. 392 Based on the calculations set out above, the compensation claimed by Mr Bova was said to be not less than $496,734, that representing 50% of the profits said to have been derived from the national tour, the "Livin' La Dole Cheque Vita" and "Live & Unpluggato" CDs and the "Te-Nonna" t-shirt. (That calculation does not include any amount referable to overseas sales of the CDs or any sales in Australia of CDs for the 2003 financial year and subsequently. Nor does it include any sales of the Te-Nonna t-shirt for the 2002 financial year and subsequently.) 393 Had I found a partnership as alleged by Mr Bova, then in light of my finding as to the business opportunity claim, I would have assessed the equitable compensation payable to Mr Bova at 50% of the profit for the first quarter of the 2001 financial year (as calculated by Mr Russell at $107,802), plus interest. Orders 394 For the reasons set out above, I dismiss the plaintiff's claim with costs. I will raise with counsel whether any formal declaration or order can usefully or should be made as to the winding up of the more limited partnership which on balance I consider was likely to have been in existence from mid 1999 through to the end of 1999 or early January 2000 in relation to the Parramatta Riverside Theatre shows and the later Enmore Theatre/Club Odeon shows (though a limited partnership of that kind was not expressly pleaded). ********** 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.