After an internal investigation, it was revealed that Mr Poloa had misappropriated $374,000 from the company, which he later blamed on his gambling addiction.

Through his lawyers, Polymer accepted his repayment arrangement on his 3rd draft, and on 20 November 2000, the parties signed a Deed of Acknowledgement with the important clause of: In consideration of payments made and received by PDG [Polymer], PDG agree not to commence any legal proceedings whatsoever either criminal or civil for the outstanding amount against Ena Poloa.The deed required Mr Tilialo to immediately pay $60,000, plus $15,000 every 6 months thereafter, which he paid the $60,000 plus one of the $15,000 instalments.

Tilialo also sought the court to order Polymer to refund the monies he had already paid.

However the judge saw little legal distinction between a private and a public prosecution where Glazebrook J said: There is much force in Cooke J's remarks in Mall Finance v. Slater (supra) to the effect that there may be less reason to make such distinctions given the existence of the relief provisions in the Illegal Contracts Act.

The balancing of freedom to contract and the strength or otherwise of the public policy considerations in these cases can be done at the time of a decision about relief under s 7 of the Illegal Contracts Act 1970.The judge had little problem in setting aside the deed as void and as of no effect.