FEDERAL COURT OF AUSTRALIA Cardtronics Australasia Pty Ltd v FX Investments Australia Pty Ltd [2020] FCA 218 File number: NSD 1083 of 2019 Judge: LEE J Date of judgment: 28 February 2020 Catchwords: CONTRACTS – whether a contract or contracts exist – discerning terms of such an agreement or agreements – whether initial contract superseded EVIDENCE – importance of contemporaneous documents – conflicting evidence as to oral conversations – proper use of post-contractual communications and conduct – appropriate inference to be drawn from the failure to call a witness Legislation: Corporations Act 2001 (Cth) ss 588FL, 588FM Evidence Act 1995 (Cth) ss 55, 56, 87 Personal Property Securities Act 2009 (Cth) ss 12, 13, 62, 293 Sale of Goods Act 1896 (Qld) ss 19, 21 Cases cited: Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) Masters v Cameron (1954) 91 CLR 353 Mealey v Power [2015] NSWSC 1678 Sinclair, Scott & Company Limited v Naughton (1929) 43 CLR 310 Heydon, J D, Heydon on Contract (Thomson Reuters, 2019) Date of hearing: 23, 24, 25 September 2019 and 3 October 2019 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 117 Counsel for the Plaintiff: Mr N Mirzai Solicitor for the Plaintiff: Ashurst Counsel for the First Defendant: Mr S C Russell Solicitor for the First Defendant: Mills Oakley ORDERS NSD 1083 of 2019 BETWEEN: CARDRONICS AUSTRALASIA PTY LTD Plaintiff AND: FX INVESTMENTS AUSTRALIA PTY LTD First Defendant CAMILLA THOMPSON Second Defendant YOUR ATM PTY LTD (and others named in the Schedule) Third Defendant JUDGE: LEE J DATE OF ORDER: 28 February 2020 THE COURT ORDERS THAT: 1. The parties provide either agreed or competing short minutes of order which reflect these reasons within seven days. 2. If the form of orders cannot be agreed, each party is also to provide a short submission, of no more than two pages, that sets out the basis upon which they seek the orders proposed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT LEE J: A SCOPE OF HEARING & PRELIMINARY OBSERVATIONS 1 The plaintiff (Cardtronics) has supplied automatic teller machines (ATMs) and associated equipment (Supplies) to the first defendant (FX) from July 2016. 2 This proceeding initially came before the Court in July of 2019 in the form of an urgent application for interlocutory restraint against FX. Cardtronics' primary contention was that it had been renting ATMs to FX for a number of years, and as of June 2019, those machines were disconnected from Cardtronics' network and all payments to Cardtronics ceased. It was said that all of FX's assets, including the ATMs, were now controlled by a new entity, which was not bound by any agreement with Cardtronics. 3 By way of final relief, Cardtronics seeks orders under s 588FM of the Corporations Act 2001 (Cth) (Corporations Act) and s 293(1)(a) of the Personal Property Securities Act 2009 (Cth) (PPSA). An order is sought extending the time for Cardtronics to lodge the Personal Property Security Register registration number 201902140006885 for the purposes of s 588FL(2)(b)(iv) of the Corporations Act and s 62(3)(b) of the PPSA. A variety of additional relief is sought, including a declaration that Cardtronics has a perfected security interest over a subset of the Supplies, being various ATMs and ancillary equipment supplied during the latter part of their commercial relationship (together, the Relevant Supplies). 4 At an initial case management hearing, it became evident that the principal question dividing the parties was the existence and terms of an agreement or agreements between Cardtronics and FX, which, Cardtronics contends, give rise to security interests in respect of the Relevant Supplies. In an attempt to facilitate the overarching purpose, it was common ground that there was utility in resolving, separately and before all other issues in the proceeding, the issues relating to whether an agreement or agreements were entered into by Cardtronics and FX as alleged and, if so, the terms of such an agreement or agreements. Indeed, it was evident (and eventually was not in contest) that some agreement or agreements were entered into, the real question being the relevant terms. 5 More specifically, following the service of points of claim and a response, three questions were identified to be determined, which were in the following terms: (1) Whether there was a contract entered into in respect of the Supplies by FX to Cardtronics (amended points of response (APOR) at [2(d)(ii)], [24])? (2) If the answer to 1 is "yes", whether the contract with respect to the Supplies: (a) was for the purchase of the Supplies by way of monthly instalments with title to the Supplies passing upon FX obtaining possession of the Supplies (APOR at [7], [8]); or (b) was for the supply of the ATMs for a rental period of 3 or 5 years at FX's election, that Cardtronics would retain title until the expiration of the rental period of the Supplies and upon payment of all rental amounts payable (amended points of claim (APOC) at [9])? (3) If the answer to 1 is "yes" and the answer to all of 2 is "no", were there a series of contracts entered into at the time each and every Deployer Load Form was provided to Cardtronics by FX, such that Cardtronics would retain title until the expiration of the rental period of the Supplies and upon payment of all rental amounts payable (APOC at [24])? 6 It was common ground that in the event Cardtronics was successful in proving that there was an agreement (and it was in the terms identified in 2(b) above) it would have a "security interest" for the purposes of the PPSA. 7 The separate questions might be thought to be superficially complex and it turns out, following the completion of final submissions, the questions earlier identified have the consequence of unnecessarily complicating the matters to be decided. 8 The difficulty that does arise in this case is essentially factual and has been occasioned by the failure of the parties (and Cardtronics in particular) to document promptly and with precision the full express terms of the bargain struck. Hence the Court is required to work out what went on by reference to a series of contemporaneous written documents and oral communications. This presents some challenges in the present case because of starkly conflicting oral evidence adduced by the parties. Usually in determining contested factual issues in a commercial case, what matters most is "the proper construction of such contemporaneous notes and documents as may exist, and the probabilities that can be derived from those notes and any other objective facts": Mealey v Power [2015] NSWSC 1678 at [4]. As Leggatt J said in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [22]: … the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. 9 But here, as I will explain, some contemporaneous notes and documents point in different directions and the content of oral communications assume central importance in ascertaining the true position, thus requiring close attention to be given to oral accounts of the two principal witnesses, being Ms Adrienne Wilderman on behalf of Cardtronics, and Mr Chris Thompson on behalf of FX. What is singular in this case is that irrespective as to which account of the protagonists is preferred, some aspects of the actions of both Ms Wilderman and Mr Thompson appear to the disinterested observer somewhat counter-intuitive. 10 I am conscious of the inherent limitations of credibility-based findings in determining which of the two general accounts given by the witnesses (and adopted by the parties as being consistent with their overall case theory) should be accepted. But in the end, determining the key factual questions comes down to my assessment of the oral evidence, the inherent probabilities as informed by the admissible contemporaneous written record, and such inferences as are appropriate to be drawn from the lack of evidence. 11 In attending to this task, I will organise the balance of these reasons under the following headings: B Guiding Contractual Legal Principles C Particular Factual Findings D The Parties' Submissions E The Evidence Generally and the Principal Contested Facts F The Terms of the Supplies G Conclusion and Orders B GUIDING CONTRACTUAL LEGAL PRINCIPLES 12 The principles that inform the assessment of when Cardtronics and FX contracted and on what terms are well known and do not require excursus. Having said that, it is important to touch upon some fundamental and relevant principles in order to understand the task in which the Court is engaged. 13 Dealing with the initial question as to whether a contract was formed, it is trite that an aspect of the objective theory of contract is that the legal rights and obligations of the parties turn upon what their words and conduct would reasonably be understood to convey, and not upon their subjective beliefs or intentions: see Heydon, J D, Heydon on Contract (Thomson Reuters, 2019) at 28 [2.30]. It follows that it is not a necessary condition for the existence of a contract that the parties have identical states of mind about their dealings; if an offer or counter-offer is made and the offeree behaves in a manner which a reasonable person in the offeree's position would take to be a final and unqualified expression of consent to the offer or counter-offer, then there is a contract: see Heydon on Contract at 30-31 [2.60]. Of course, this consent or acceptance can take place by conduct (or can be inferred from the circumstances) as well as by identified words but, having noted this, acceptance must be unequivocal and whether a communication accepts the terms of an offer without modification, or instead varies its terms, is a matter of construction. 14 As will be seen below, during all the exchanges in June and July 2016, it was the expectation of the parties that the terms of any contractual relationship would be formalised and documented in writing. Given that the primary case of Cardtronics is that an agreement was reached on 29 June 2016, which was constituted by the exchange of six emails between the parties (and not the anticipated written instrument or instruments), this fact raises potential issues as to uncertainty. It is generally accepted, of course, that where parties have been in negotiation and reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation is to be dealt with by a formal contract or contracts, the transaction may fall into any of four classes: Masters v Cameron (1954) 91 CLR 353 at 360; Sinclair, Scott & Company Limited v Naughton (1929) 43 CLR 310 at 317. Which class a transaction falls into will depend on an objective interpretation of the words and conduct of the parties during the negotiation process. As will become evident, it is plain that by the time the first Supplies were provided by Cardtronics to FX some form of agreement was reached between the parties: the real issue is whether that bargain was for the sale or rental of the Supplies. C PARTICULAR FACTUAL FINDINGS 15 In this section of my reasons I deal with, and make findings in relation to, the evidence derived from contemporaneous communications and oral evidence, which was relevantly undisputed. In doing so, however, I also identify and place into the chronological narrative the occasions and broader context of the hotly disputed communications. I return to and make findings in relation to these factual issues in dispute in Section E, after some observations about how I propose to approach that task. C.1 The Initial Exchanges 16 On 15 June 2016, after making some initial enquiries through Cardtronics' 1800 telephone number, Mr Thompson and Ms Wilderman had a conversation. They discussed Mr Thompson's interest in the services provided by Cardtronics and Ms Wilderman mentioned that she "could send through a deployer pricing proposal which would include some equipment sale and prices of any equipment that they supply as well". 17 On 21 June 2016, Ms Wilderman and Mr Thompson had another conversation during which Ms Wilderman told Mr Thompson that once the parties had discussed the terms of the proposal, they "would move to a deployer agreement". 18 At the time of these initial discussions, Ms Wilderman and Mr Thompson both understood that they were negotiating commercial terms which they intended to document in a written agreement. 19 Ms Wilderman then sent an email to Mr Thompson attaching what Ms Wilderman described as a "proposal which includes details for ATM Deployer services and pricing". Schedule 3 to the proposal contained a list of the purchase prices for particular types of ATMs. Mr Thompson then replied with an email containing a number of questions about the proposal. This is the email alleged by Cardtronics to be the first document in the relevant contractual chain (APOC at [3]). It relevantly stated: 1. (a) Please provide machine rental figures for Schedule 3 machines. (b) I would like to have the flexibility to rent a machine for 1, 3 or 5 year term. However when the rental amount paid equals the pricing outlined for the machine as per Schedule 3 it would be my machine. Please advise if acceptable. … 8. What length of terms do you offer for this switching agreement? … Thanks Adrienne, look forward to hearing further from you. As I mentioned I'm now in a position to agree with a switching operator, so if your (sic) able to move things on your end I will do so on my (sic) so we can try and get to an agreement soon. 20 On 23 June 2016, Ms Wilderman replied to Mr Thompson's email. Relevantly, she: (a) attached an updated Schedule 3 with rental pricing, which did not contain rental pricing for all types of ATMs which were offered for sale with an upfront price; (b) in response to Mr Thompson's question about flexible rental terms, stated, "[r]ental terms are 3 or 5 years. Agreed, once the full amount of the rental term has been paid to DCP the machine becomes yours"; and (c) answered the remainder of Mr Thompson's queries. 21 That same evening Mr Thompson replied stating, "[w]e are down to just a few key Questions / points now, if we can resolve these then I'm happy to move to documenting the agreement and getting machines online with DC!" and also stated: 1. Revised Schedule 3 a. I would like the 3 year pricing to be the same as the 5 year under the rent model, I don't see why it should be double? Given, if I don't rent it for long enough to pay the machine off you retain ownership. b. Either the above OR, the rental term is a fixed 5 year term where an early termination clause exists where I can terminate a 5 year agreement between month 34 & 35 only, where the termination then would occur at the end of the 36th month (3yrs). c. A further termination clause if the merchant or site owner terminates the agreement due to there (sic) business being shut down etc … 2. DCC Revenue I have been offered a higher % with another switching operator & I believe the fair split on this revenue is 60% (BankTech) to the deployer. How many different cards / institutions does DC have active for DCC? This is I'll be honest a big key to my decision on switching, I have many good sites and further prospects to install over 50 more sites (under an exclusive deployer contract) which will generate very strong DCC revenue Adrienne. 3. Switching Term If I was to sell my network during this period, I assume I would have a right to assign my contract to the Buyer? I would be happy with a 3 or a 5 year term on that basis. 4. Switching Rates I am prepared to agree to an 11c rate but I wish to have the 24/7 help desk discounted to 1c per transaction 5. Installations and Staging I request that if I in any given month request / order more than 5 machines I would like a 35% discount on staging & installation rates (if they are all in say the same Metro or country area). 22 On 27 June 2016, Ms Wilderman replied to Mr Thompson's email. In relation to Mr Thompson's email of the evening of 23 June 2016, she stated: [In response to 1(a)] Economically it's not viable to offer 5 year pricing on a 3 year term. It's a valid point that we could simply take the machine back but, this really isn't our intention and wouldn't be ideal. [In response to 1(b)] In reality if there is a termination clause at month 34 or 35 than (sic) it's only a 3 year agreement. [In response to 1(c)] The DCP Deployer agreement has allowance for a Deployer to relocate a machine if a site is lost however, DCP cannot agree to an open ended termination clause. [In response to 2] DCP can agree to 45% profit margin, which is a compromise of your 60% and our original 25% … DCC can be applied to card on the International MasterCard networks including Maestro and Cirrus. [In response to 3] Yes, there is an assignment clause in the DCP agreement. [In response to 4] Chris, there is little to no margin on DCP Helpdesk pricing we have priced to be economically feasible for the Deployer. I'm prepared to look at volume discounts for switching but, helpdesk has to remain at $0.03 per transaction. 23 On 28 June 2016, Mr Thompson replied with his responses. The email begins: Thanks Adrienne, appreciate your reply. Please see below for my responses. … Hopefully we are able to agree and move forward, I am trying to finalise a switching partner agreement over the next day or two so please think about this as I think we are close but in some areas still far apart. I feel we are close now but I do need what I've outlined below. 24 Importantly, the foreshadowed responses included: [In response to 1(a)] OK AGREED BUT I WOULD LIKE AN UNDERTAKING I CAN BE SUPPLIED WITH UP TO 50 HYOSUNG 2700 BH MACHINES OVER THE NEXT 6 MONTHS? [In response to 1(b)] AGREED [In response to 1(c)] AGREED [In response to 2] THANKS ADRIENNE BUT I REALLY NEED 60%. AS IVE (sic) SAID THIS IS VERY IMPORTANT TO ME. PLEASE DEFINE PROFIT MARGIN AND WHAT COSTS COME OFF / AFFECTS THE GROSS % CHARGED? ALSO PLEASE ADVISE WHAT THE DCC % COMMISSION CHARGED IS? … WHAT ABOUT VISA? … [In response to 3] THANKS, THERE ARE NO OTHER CONDITIONS IMPOSED THE ASSIGNMENT? IVE (sic) HEARD POSSIBLY INCORRECTLY DCP CAN TERMINATE THE SWITCHING AGREEMENT UNDER SOME CIRCUMSTACNCES? [In response to 4] I WOULD AGREE TO $0.11c SWITCH & $0.02 HELP DESK … 25 During the day on 29 June 2016, Ms Wilderman and Mr Thompson had a telephone conversation. Unsurprisingly, in the light of the foregoing exchanges, the discussion assumed it was common ground that the Supplies would be provided by way of rental. This is apparent from an email sent that evening at 7:28pm, in which Ms Wilderman stated: Thank-you for your time on the phone today. Please see the following information for our points of discussion: 1. Schedule 3 Agreed. Final point DCP will agree to undertake on commitment for supply of NH 2700 BH machines. Availability for refurb machines cannot be confirmed, therefore DCP is to provide monthly rental cost for new machines. Lead times to be determined. Rental fee to be charged once equipment has been received by DCP from the manufacturer. 2. DCC Revenue DCP can agree to 60% of the profit margin from a DCC transaction. Costs involved are additional processing fees, and any applicable interchange fees. Based on DCPs global fleet the average rate of acceptance is approximately 67%. Rates charged to the cardholder are variable depending on the daily exchange rate. On average across the DCP fleet about 30% of the international transaction are MasterCard. At this time Visa does not allow DCC transactions. 3. Switching Term Agreed to 5 year term. In regards to an assignment by the Deployer, DCP may agree to the transfer or provide 60 days' notice to the Deployer that they wish to terminate. Obligations of both parties continue to apply during the transition period. Additionally, the DCP Deployer Agreement contains a Right of First Refusal clause where DCP may match an offer to purchase the Deployers business. 4. Switching Rates DCP can agree to $0.025 (per transaction) for helpdesk and $0.11 (per transactions) for switching up to 40,000 + transactions per month. Once volumes increases to 40,000 + per month switching rate decreases to $0.10 (per trans) for switching and helpdesk remains at $0.025 (per trans). … 26 After replying to the remaining points, Ms Wilderman then concluded, "I think this covers off our final points. Please feel free to contact me for any questions, I look forward to your response". Half an hour later, at 8.02 pm, Mr Thompson responded: Hi Adrienne, thank you for the follow up discussed. I'm agreeable to all points with following minor adjustments; 1. Switching & Parts / Labour discount applies after 20,000 monthly transactions as I'm compromising on the higher (sic) parts pricing. I think this figure is enough for you to see the volume build up? 2. Rental Pricing for the NH 2700 BH is to be provided with the contract. 3. All prices inc schedules inc GST 4. Id (sic) like the lawyers to draft that the processing and interchange fees are charged at industry standards. Just to know it's not being marked up as I'm not seeing the actual figures. I would now be prepared to enter into and execute the contract on the below and other previous changes. If you wish to start this. I ideally would like a draft prior to the weekend so as we can commence orders and business asap. Not sure how quick your legal guys move? Thanks Adrienne & the legal entity for this agreement will be; FX Investments Australia Pty Ltd ACN: 604 035 234 ATF The CCT Investment Trust ABN: 90 481 022 018 27 This email introduced the entity, FX, as "the legal entity for this agreement", being a reference to a contract Mr Thompson was prepared to execute on behalf of FX on the terms that had been agreed, subject to the specified "minor adjustments". 28 Shortly after, at 8:29 pm, Ms Wilderman sent Mr Thompson an email, which indicated that the "minor adjustments" were unproblematic and that a commercial consensus had, for all practical purposes, been reached. She stated: Thank-you for your prompt reply. This is exciting news! Let me speak to our Legal Team in the morning to get a timeline on the draft. Perhaps we should meet early next week to discuss implementation… 29 Pausing here, Cardtronics submits that following this exchange, there was no ambiguity that the parties agreed that in circumstances where Mr Thompson wished to rent a relevant ATM, he (or, more accurately, FX) would not obtain title or ownership of the relevant ATM unless and until the rental period had expired and the ATM had been paid for in full. 30 FX relies upon the final two emails, and in particular the reference to "implementation", to show that the parties did not intend to commence their business relationship until after a written document had been executed. C.2 The Oral Communications in July 2016 Mr Thompson's Evidence 31 Mr Thompson gave evidence that on 30 June 2016, he spoke with his accountant, Mr Steve Diez of "Accountancy Plus Whitsundays", to discuss the end of the financial year. As discussed below, Mr Diez was not called and there was no contemporaneous evidence tendered in FX's evidence in chief corroborating the existence or content of the alleged conversation such as telephone records (which experience suggests must have existed) or file notes (which an accountant might be expected to have kept of a call recording advice to a client). Nor was there any email sent after any such call by either participant referring to the call or its contents. During his evidence, Mr Thompson foreshowed an attempt to give evidence of the representations made by Mr Diez during the call, but a limitation was made limiting the use of any such evidence to evidence of the fact of the communication and not as evidence of the truth of any of the representations made during the telephone call. 32 In any event, after speaking to Mr Diez, Mr Thompson contacted Ms Wilderman on 1 July 2016. Mr Thompson contended that he discussed the ownership of the ATMs and explained that he needed to own the Supplies from the outset but that there should be a payment over time, being the five-year "repayment figure" that had previously been discussed. He then gave evidence that Ms Wilderman said, in effect, that as FX was going to own the equipment at the end of five years, she did not see why Cardtronics would have an issue with FX owning it up front. Mr Thompson asserted that he then agreed and said, "that sounds like exactly what I need it to be" and the matter was left with the assurance of Ms Wilderman that, because she was "doing" the deployer agreement, Mr Thompson should leave the details with her. 33 Evidence was then given by Mr Thompson that on 4 July 2016, he again called Ms Wilderman in order to ask for an indication as to the progress of the draft contract, with Ms Wilderman indicating that its completion was imminent and that it would be sent. Further evidence was given that Mr Thompson also told Ms Wilderman that the Deployer Load Form would need to be amended to reflect an option to purchase the machines. I will deal with Mr Thompson's evidence in relation to these calls in Section E of these reasons. 34 On the morning of 5 July 2016, Ms Wilderman sent Mr Thompson a text message, stating, "Morning Chris, ready to have a chat when you are". 35 In a further disputed aspect of the evidence, it is then said that Ms Wilderman and Mr Thompson had a conversation in which, Mr Thompson contends, Ms Wilderman made it clear that the proposed agreements had to be separated and that she had to provide Mr Thompson with a separate "equipment sale deed"; Mr Thompson asked how long that document would take because he knew the deployer agreement was close to finalisation. Ms Wilderman is then alleged to have said that the separate agreement would take longer than the deployer agreement as it had to be prepared in Canada, which was the location of Cardtronics' head office. Mr Thompson gave evidence that he reiterated his concern that the two documents be prepared and asked that they be given to him together, but Ms Wilderman said the equipment deed would take longer; she was also alleged to have entreated Mr Thompson not to worry because "they had a deal" and she would get the document to Mr Thompson as soon as possible. 36 Pausing here, the case of FX is that a contract was entered into at this point which was partly oral and partly in writing. Ms Wilderman's Evidence 37 Ms Wilderman's evidence during cross-examination was that although she had no recollection of the 1 July call, given the existence of an email of the same date, some conversation "likely" occurred. She had no recollection of Mr Thompson telling her that he had spoken with his accountant, and rejected the suggestion that Mr Thompson told her the terms of the supply of the ATMs would need to reflect a sale rather than rental arrangement. Similarly, her evidence as to the 4 July call was that she did not recall having any conversation of the type recounted by Mr Thompson. As to the 5 July call, she accepted on the basis of the text message that a call of some type occurred. She agreed it was most likely that she had told Mr Thompson in that conversation that there would need to be a separate agreement from the Canadian head office on the equipment terms. When it was put to her that she had told Mr Thompson that the ATMs could be purchased rather than rented, she did not accept the suggestion put to her and averred that she did not have the authority to make such a decision. I will deal with the evidence as to these critical disputed conversations in Section E below. C.3 Uncontested Evidence of 5 July 2016 38 Returning to the irrefragable evidence, on the evening of 5 July 2016, after their conversation earlier in the day, Mr Thompson sent a follow up text message to Ms Wilderman asking "is the contract on track still? Thanks". Ms Wilderman replied, "Absolutely. I have it, just waiting for Andrew [Wingrove, the Vice President of Sales and Client Services at Cardtronics] to give it the once over". And the following morning Mr Thompson and Ms Wilderman exchanged further text messages: Ms Wilderman: Hi Chris, we have lift off the Agreement is coming to you now. Mr Thompson: Thanks Adrienne, will get onto it shortly. What is timing from your Canadian office on the deed re; machines? Thanks Chris 39 At this point it is necessary to interrupt the narrative to make a point about the "deed re; machines" referred to in this text or the "machine contract deed" as it is referred to in later communications recounted below. It is common ground, that by this point, two written agreements were contemplated: a "deed" and the "ATM Deployer Agreement". It also appears to have been undisputed that it was necessary for the "deed" to be created in collaboration with the Canadian office. The difference between the parties is that Cardtronics contends that the deed was supposed to document the rental of the ATMs on a "rent to own" basis (with title passing at the end of the rental period), while FX contends the deed was supposed to be a formalised sale agreement which would reflect the discussions that had taken place, both orally and in writing. C.4 ATM Deployer Agreement The Uncontested Evidence 40 On 6 July 2016, Ms Wilderman sent Mr Thompson a copy of an ATM Deployer Agreement for his review and signature.. Mr Thompson replied promptly the next day with what he described as "significant concerns in relation to this agreement". The email commences: Hi Adrienne, I've got some significant concerns in relation to this agreement. I have outlined them in detail below, hopefully these can all be worked through and I trust you can appreciate my comments and where I'm coming from. I've outlined at the bottom more the commercial aspects which are incorrect as I see it from our discussions, nothing major in those but the Legal stuff does present a few headaches! Let me know, thanks. … 41 Mr Thompson then set out a litany of complaints about the drafting, including noting that permitted deductions for the purpose of calculating DCC revenue profit margin had not been specifically identified. The following day, after speaking to her superior, Mr Wingrove, Ms Wilderman responded: Andrew [Wingrove] and I have reviewed and considered your points below. DC Payments cannot agree to amendments. These are our standard Terms and Conditions which are non-negotiable. The [ATM Deployer Agreement] is set out to provide contracted services without risk to our business. While the quotes I have provided you are GST inclusive the [ATM Deployer Agreement] is drafted as GST exclusive. DC Payments does agree to negotiate the Commercials of the [ATM Deployer Agreement]. There are several valid points you have brought forward regarding the Commercials. I will have the [ATM Deployer Agreement] amended and sent back to you for review and execution. 42 A revised ATM Deployer Agreement was then sent on the evening of 8 July 2016, which included the following: (1) by the Recitals: A. [FX] wishes to place or has placed ATMs (whether or not owned by [FX]) at Sites (as defined herein) ("Terminals"). B. To enable the Terminals to process transactions, [FX] wishes to engage [Cardtronics] as its exclusive processor of transactions initiated at the Terminals. C. On the terms and subject to the conditions set out herein, [Cardtronics] has agreed to provide the Services to the Terminals as requested by [FX] for the Term. (2) by cl 1.1: Additional Services means any additional services selected by [FX] as set out in Schedule 1. … Services means the terminal driving, electronic authorisation, Network links transaction switching, computer data processing, Settlement and reporting services provided by [Cardtronics] to [FX] plus any Additional Services subscribed to by [FX] and detailed in Schedule 1. (3) by cl 3(b), FX represented and warranted that it would own or have the right to be in possession of and use each Terminal; and (4) by cl 3(g), FX represented and warranted that it would, for each Terminal, complete and submit to Cardtronics for processing, a Deployer Load Form in the form attached as Schedule 2 to the ATM Deployer Agreement. 43 The Additional Services referred to in Schedule 1 contain no reference to the purchase or hire of ATMs (though there is provision at cl 4(d) for Cardtronics to install and remove ATMs). It will be necessary to return below to the Deployer Load Forms (a pro forma version of which constitutes Schedule 2 to the ATM Deployer Agreement). 44 On 17 July 2016, Mr Thompson sent Ms Wilderman a text message stating: I've signed the agreement and would like to have a coffee and drop it to you tomorrow & discuss parts of it & also bringing online the first 15 or so machines. I've got to be on the Gold Coast so let me know if you have time? The 18 July Meeting at Broadbeach 45 On 18 July 2016, Mr Thompson and Ms Wilderman met in person at a "Starbucks" coffee shop at Broadbeach on the Gold Coast, at which time Mr Thompson handed over a copy of the signed ATM Deployer Agreement. Both Ms Wilderman and Mr Thompson gave consistent evidence that the meeting occurred, but the content of the conversation is in contest. 46 Mr Thompson gave evidence that when he provided the signed ATM Deployer Agreement, he explained that the machine contract deed needed to be prepared and given to him quickly. Ms Wilderman reiterated that the drafting was being done by the Canadian office and was going to take a little bit of extra time. Ms Wilderman is alleged to have said that they had an agreement and Mr Thompson had nothing to worry about. Mr Thompson is then alleged to have said that he wanted to make sure it was all done properly, and Ms Wilderman replied it was all fine, there was an agreement and there was nothing to worry about. Further, it is said Mr Thompson told Ms Wilderman that the Deployer Load Forms would need to be amended to include an option in the pricing and the dropdown box for a purchase and Ms Wilderman responded that Mr Thompson should select, as an interim measure, the rental option. 47 Ms Wilderman accepted in cross-examination that she told Mr Thompson at the meeting that Cardtronics could start supplying the machines now that the ATM Deployer Agreement had been signed, even without a finalised equipment deed. When asked whether Mr Thompson requested that the Deployer Load Forms would be amended to include a purchase with monthly repayments, she replied that the Deployer Load Forms were standard forms and she did not believe any agreement was reached as suggested. Ms Wilderman did not accept that she had told Mr Thompson to select the rental option until an amendment could be made to the Deployer Load Forms. 48 At 9:45pm on 18 July 2016, Mr Thompson sent Ms Wilderman an email asking for "[t]he Editable Load form" and for the "[t]iming of the machine contract deed". On 19 July 2016, Ms Wilderman replied stating that the editable load form had been sent and, with respect to the "machine contract deed", "[n]o ETA yet, chasing the Legal Team". The Subsequent Communications 49 Mr Thompson alleges that on 20 or 21 July 2016, he noticed there were several errors in the Deployer Load Forms. The forms did not allow for the sale terms which had been discussed; only rental options or outright purchases could be selected. Some of the pricing was also incorrect. It is further contended that Mr Thompson called Ms Wilderman to discuss those concerns and Ms Wilderman said that she was working on the "deed for the … sale, and the dropdown box couldn't be amended at that stage for that" (that is, for the sale). In cross-examination, Ms Wilderman accepted that she may have had a conversation around this time with Mr Thompson and it was quite likely they discussed amendments to be made to the Deployer Load Forms. Ms Wilderman rejected, however, any suggestion that those amendments included an option for purchase with monthly repayment terms. In re-examination, Ms Wilderman's evidence was that the relevant amendment discussed was the help-desk fee. This disputed conversation will also be addressed in Section E below. 50 On 21 July 2016, Mr Thompson sent Ms Wilderman the initial Deployer Load Forms for the first two sites stating: Let me know if i've incorrectly filled something out. … There will be the 25% discount on these as i'll have greater than 5 for this month ordered. 51 The email attached a Deployer Load Form for Kirra Backpackers and, in the Notes section, stated "Helpdesk fee is incorrect below, should be $0.025". 52 It is again useful to pause to note that this (and each subsequent) Deployer Load Form contained the following acknowledgement: The undersigned acknowledges having read this entire Deployer Load Form and represents and warrants that the information provided herein is true, correct and complete. 53 It is not in dispute that for every ATM, there is a Deployer Load Form that Mr Thompson has submitted to Cardtronics, and that each Deployer Load Form indicates that Mr Thompson required a "rental". Further, save for seven forms, each was signed by Mr Thompson and, in relation to the unsigned forms, there is no significance to be drawn from a want of a signature as Mr Thompson caused all Deployer Load Forms to be communicated to Cardtronics in all cases. 54 The next day, on 22 July 2016, Ms Wilderman sent Mr Thompson an email with some corrections to the initial Deployer Load Forms and requested a signed copy of the forms. She also remarked, "[d]ually (sic) noted on the Helpdesk fee. I thought I overwrote it but I guess not. I will change and reissue". In reply to this email, Mr Thompson wrote: "[t]hanks. I will make the changes and send back". Similarly, on 26 July, Ms Wilderman sent a text message to Mr Thompson stating, "I'm working on an update to the Load Form should have it through to you shortly. Wanted to let you know in case you started filling any out". The contention of both parties was that this text message was consistent with their case. In the case of Cardtronics, this was a reference to an update on the helpdesk fee consistent with what the parties had earlier agreed (see [25] above). In the case of FX, it was a reference to changes which would allow the Deployer Load Forms to make reference to a sale arrangement. Other Relevant 2016 Communications 55 On 15 August 2016, Mr Thompson sent Ms Wilderman an email with a Deployer Load Form for the "Caltex Emerald" site attached. In the "Notes" section, the last two sentences are: Staging & Install will attract 25% discount as per contract. Service and Repairs to be priced at $0.20 inc GST per transaction as per email Adrienne to Chris 28/7. 56 Cardtronics submits that the reference to the word "contract" in this email is a reference to the ATM Deployer Agreement and the reference to other email correspondence reflected Mr Thompson's acknowledgment that the terms negotiated had bound FX and Cardtronics. 57 On 20 September 2016, a statement of account was emailed from Ms Sonia Li, of Cardtronics, to Mr Thompson for the August 2016 period. This statement of account made reference to the invoicing of an "ATM Rental Fee", which was not, at least at this time, contested by Mr Thompson. 58 There was then a hiatus in relevant communications, save for the monthly issuing of a "Statement of Account". 59 But the following year, things changed. C.5 The 2017 Communications The Evidence 60 On 20 March 2017, Mr Thompson sent Ms Wilderman an email with the subject line, "Machine Agreement", which stated: We are overdue to document our equipment sale agreement which I'm paying off monthly. I must get this document well before June 30 this year and I also need my monthly invoices to say equipment loan payments not "rental". It's an accounting thing my accountant is constantly at me about.. So please, can we address this with some urgency? 61 Ms Wilderman did not respond contradicting Mr Thompson's description of their bargain, even though she understood Mr Thompson to be referring to their dealings in July 2016 and the deed which was still being prepared by the Canadian office. On 11 April 2017, Mr Thompson sent another email with the subject line "Equipment Agreement", which stated: Hi Adrienne, I wanted to follow up on this as you advised one of your legal guys was working the document up. Can you advise if we are any closer? This monthly's (sic) report needs to read, equipment loan repayment instead of "rental". If you could come back to me on this that would be great, thanks Adrienne. 62 The same day, Ms Wilderman replied by email, "[t]he draft copy is sitting with me for review. We're starting to make progress". Again, she did not directly contradict Mr Thompson. Ms Wilderman gave evidence that the draft document which she had at that time was not a draft of the "Terms of Sale" document which was eventually sent to Mr Thompson in December 2018, but was a document "with the same context". Mr Russell, counsel for FX, made a call for this draft document upon Ms Wilderman giving this evidence. The document was produced the next day, although an objection to access was made on the basis of legal professional privilege. The request for access was not pressed and the document is not in evidence. 63 On 1 May 2017, Mr Thompson asserted in a further email: … I need to get the purchase agreement in place, you have an enormous amount of equipment given to me with no commercial terms really around who owns it. This can't work for you and it doesn't work for me. My accountant is all over me & we are now 8 weeks from EOFY… 64 Again, Ms Wilderman did not challenge Mr Thompson's description and, by 3 May 2017, having had no response, Mr Thompson emailed Ms Wilderman again, asking whether there was any progress. On 5 May 2017, Mr Thompson emailed Ms Wilderman again, now asking if it was necessary for him to fly down to meet Ms Wilderman and Mr Wingrove in person to progress the written sale agreement. On 17 May 2017, Mr Thompson sent a further "friendly reminder". 65 When asked in cross-examination why she did not respond to these emails and contradict Mr Thompson's assertions, Ms Wilderman responded that "maybe I wasn't sure how to respond, because it wasn't (sic) a rental. It was – perhaps I didn't want to – you know, get into a - - - An argument about this situation … to be honest, my focus was on trying to get the agreement". 66 On 29 May 2017, Mr Thompson's tone changed and he sent a further email to Ms Wilderman: I apologise for this but, I feel I'm just getting too close to June 30 now with nothing from DCP. DCP have supplied my companies with now over 60 ATM machines, the majority brand new and approximately $359,000 in value + I have a further order of 8 + a further 18 - 25 (+$154,000) needed prior to Jun 30. This totals $513,000 approximately in machine value DCP have sold to me or will potential (sic) provide before June 30 but my companies have not; a) been provided an invoice or purchase agreement & All that's been done is the sales / repayment term is documented by a Load Form. Adrienne it's just not good enough, we have what I would describe as a good relationship with the possibility of being so much better but I finally demand the following within 3 business days; a. invoices for the entire existing machines DCP has sold to me & or b. The asset purchase agreement Adrienne I will not be left in the lurch any closer to June 30, I must and will make alternate arrangements so as to manage my affairs if DC does not honour its. This dates back to when we signed the switch agreement you told me Canada would start strait (sic) away on this agreement. If DCP can't and will not honour our agreement then Adrienne I again must tell you I need to move to protect my interests because June 30 is a matter of weeks away now (I've been asking for this since October 2016) and I've been relying upon our agreement being honoured but as I've said on many occasions your (sic) putting me in an impossible situation and I've got important tax planning to do. 67 Ms Wilderman then forwarded that email within Cardtronics to Ms Fiona Zhong and Ms Li (members of the Cardtronics' finance team). In the forwarding email, Ms Wilderman refers to there being a need to discuss the "sold Deployer ATMs". Ms Wilderman gave evidence that the reason she referred to the ATMs as "sold" in the internal email to the finance team, some three weeks before the 21 June meeting, was that it was what Mr Thompson was asking her to do (notwithstanding she knew that was not what they had agreed). C.6 Meeting on 21 June 2017 68 A meeting was arranged for 21 June 2017, which was attended by Mr Thompson, Ms Wilderman and Mr Wingrove. 69 Ms Wilderman gave evidence that prior to the meeting, and at some point after the first of Mr Thompson's emails extracted at [60]-[66] above, she had a conversation with Mr Thompson in which he stressed it was very important to him that Cardtronics find a way to record the ATMs as a sale to him rather than a rental, because of a "tax issue". He apparently explained that his bookkeeper had recorded the ATMs consistently with FX having title and FX was preparing returns on this basis. Mr Thompson gave evidence, consistent with that of Ms Wilderman, that he did call her at some point to follow up on his emails prior to the meeting. 70 Mr Thompson's evidence was that at the meeting he said he needed a resolution on the invoice and the equipment sale deed. In response, Ms Wilderman apparently said that there were some internal "to-ings and go-ings" with respect to the invoice and that was why Mr Wingrove was present, because she needed his assistance to progress a resolution of the issue internally. Mr Thompson stressed he needed the invoice and Ms Wilderman replied that she would get it and Mr Wingrove said that he would work with Ms Wilderman to produce the invoice. There was also some discussion of the proposed deed which was still in draft and Ms Wilderman said she would work with Mr Wingrove on getting it to Mr Thompson soon. 71 Ms Wilderman gave evidence that she recalled the meeting being for the purpose of approving an invoice, which was to be issued for the sale of ATMs, notwithstanding that it had been previously agreed the ATMs were provided on a rental basis. Mr Wingrove was present because he would need to approve any such invoice being issued. After some discussion, Ms Wilderman and Mr Wingrove then agreed to issue such an invoice for the ATMs supplied to that date (Initial Supplies), as a good faith gesture because Mr Thompson was insistent. 72 Although an affidavit of Ms Wilderman filed in the proceeding was not read, parts of that affidavit were the subject of cross-examination. From the evidence adduced in cross-examination, it is apparent that at some earlier point Ms Wilderman recalled having told Mr Thompson at the meeting that the arrangement was a "one-off" and all future supplies would be on the terms originally agreed (despite this, evidence to this effect was not adduced orally in Cardtronics' case in chief, and I do not propose to have regard to it). 73 Mr Wingrove gave evidence essentially consistent with that of Ms Wilderman. His recollection as to the purpose of the meeting was that Mr Thompson was asking Cardtronics to reconsider the arrangement it had for the supply of the Initial Supplies. Mr Thompson was apparently quite distressed and demanded that the terms be reconsidered because it had important tax implications for him. During the meeting, this possibility was discussed, and Mr Thompson was said to be "fairly pointed" in indicating that in the event Cardtronics was not willing to reconsider the arrangement, it would put him in a precarious financial position. Mr Wingrove said that he found this put him in a difficult position in that Mr Thompson was a customer of Cardtronics, and "he was essentially threatening … that if we wouldn't reconsider, that his business with [Cardtronics] would cease or he would reconsider his business with [Cardtronics]". Mr Wingrove also gave evidence that they talked "at length about – that this would be a one-off application and wouldn't apply to any further provision of ATMs". C.7 Communications Following 21 June 2017 Meeting 74 Importantly, on 27 June 2017, Ms Wilderman sent Mr Wingrove an internal email asking for his approval for an invoice. The email stated: As discussed, I am seeking approval to have Finance create an invoice for the purchase of the ATM assets listed below… These ATM assets were sold to FX Investments Pty Ltd ACN 604 035 234 in its individual capacity and ATF CCT Investments Trust ABN 90 481 022 018 upon execution of their ATM Deployer Agreement dated 18 July 2016. The ATM assets were purchased by FX Investments Pty Ltd outright under a monthly payment plan over a 60-month term for the Australian Financial Year 2016. 75 It will be necessary to return to the significance of this email below as, unsurprisingly, FX place reliance upon it as constituting an admission by Ms Wilderman as to what was discussed at the meeting of 21 June 2017 and as to her earlier dealings with Mr Thompson in July 2016. 76 Ms Wilderman gave evidence that the discussion referred to at the beginning of her email was the meeting of 21 June. Her explanation as to why she wrote the email in the way she did was because she needed to seek approval from the finance team and was trying to provide context and a "valid" reason as to why the treatments of the ATMs would change, and that is what she set out in the email. Her evidence was that the reason the email was drafted in terms which did not reflect what had actually occurred, was because she was "trying to make it easy" for the finance team to provide the invoice. 77 Mr Wingrove accepted in cross-examination that he did not send any form of reply to Ms Wilderman querying the terms of her email, and said that in a sense, the email matched what was agreed in respect of altering the treatment of the relevant ATMs. 78 On 29 June 2017, Ms Wilderman sent Mr Thompson an email with the subject line "FW: ATM asset purchase for FX Investments – invoice required" which attached a tax invoice. The invoice referred to the "Sale of 66 ATM's" (sic) and then specified a price for each model, which conformed to the 5 year repayment schedule provided to Mr Thompson on 23 June 2016. 79 Then, on each of 18 July 2017, 11 August 2017, 15 September 2017, 16 February 2018, 16 May 2018 and 17 July 2018, Cardtronics sent Mr Thompson a "Statement of Account" which apparently shows a different accounting treatment for the Initial Supplies (being the 66 ATMs Cardtronics allege were the subject of a separate arrangement), and the Relevant Supplies. Importantly, regarding the Relevant Supplies, the statements continued to refer to an ongoing "ATM Rental Fee", while the 66 ATMs appeared to have been treated differently, as "ATM Lease payments". C.8 Terms of Sale 80 Eventually, on 21 December 2018, Ms Wilderman sent Mr Thompson an email asking him to sign and review a Terms of Sale document. The Terms of Sale provided for: (a) title in the ATMs to pass when payment in full had been made (cl 3(b)); (b) contained a retention of title clause (cl 7); and (c) granted an express PPSA security interest (cl 8). 81 Mr Thompson's reply to the Terms of Sale was sent by email on 5 February 2019: Hi Adrienne, ummm wow! This is years in the making & hundreds of discussions around the terms of supply of goods and now this.. … These terms and sale doc are very far from our conversations and agreement to date. Being up front Adrienne, I've got some issues around title of goods not passing as we discussed they did and some of your enforcement rights.. clauses about receivers etc and obviously the personal guarantee. Never have those been mentioned whilst we have been doing business. … I have no issue with signing a document, let that be clear but this is just extremely different to our discussions to date… 82 On 7 February 2019, Ms Wilderman forwarded a copy of Mr Thompson's email to Mr Wingrove stating: I need your advice on the response to this please because I don't want to get into some "he said/she said" debate. 83 The same day, Mr Wingrove replied to Ms Wilderman providing a draft response to be sent to Mr Thompson which was in substantially the same terms as that which was eventually sent by Ms Wilderman on 12 February 2019. 84 Ms Wilderman replied to Mr Thompson on 12 February 2019. She did not dispute Mr Thompson's assertion that the Terms of Sale was radically different to the parties' agreement to that point. Instead, she wrote: To answer your question, the Terms of Sale Agreement was a collaborative effort between the sales, finance, and our legal team. The document is based on our standard terms, and is consistent with how we offer products & services. I would suggest as a starting point that you provide a list of any issues and we can review… This document needs to be agreed, and executed before we can proceed with supplying any further ATM. D THE PARTIES' SUBMISSIONS D.1 The Case of Cardtronics 85 The case of Cardtronics is that following the email exchanges, on and from 29 June 2016, an arrangement was struck and Supplies were to be provided to FX on rental agreement terms. The contemporaneous written communications are consistent with this characterisation and were unaffected by any intervening oral communications. Further, there was no subsequent reference in any written correspondence to a request for the Deployer Load Forms to be amended in the way FX contends, nor were they ever actually amended. Mr Thompson continued to fill out and send the Deployer Load Forms to Cardtronics. Cardtronics relies on the fact that the objective evidence is only consistent with the ATMs being offered as rentals on a "rent to own" basis. 86 This remained the position until it became expedient, in March 2017, for Mr Thompson on behalf of FX to seek to characterise what had occurred the previous year as a sale (rather than a rental). This inspiration by Mr Thompson belatedly arose following discussions with his accountant (which occurred much later than Mr Thompson alleges) and the arrangement proposed to be put in place, apparently on his accountant's advice, was to facilitate a further transfer of the Supplies between two companies controlled by Mr Thompson and his wife (FX and CCT Investment Holdings Pty Ltd (CCT)) by the end of the 2017 financial year. It was only at this point that Mr Thompson started insisting that the agreement be revisited in a way which changed the nature of the legal relations and now reflected a sale of the Initial Supplies to FX. The lack of any contradiction by Ms Wilderman to this reconstruction of what had occurred, when raised by Mr Thompson from March 2017, is reflective of a desire of Ms Wilderman, on behalf of Cardtronics, not to "rock the boat" with someone who had by then become a valuable customer. Ultimately, shortly before the end of the 2017 financial year, following repeated entreaties by Mr Thompson, Cardtronics was prepared to comply with his wishes and agreed that the Initial Supplies, and the Initial Supplies only, were to be treated from that time forward as having been sold to FX, notwithstanding what had earlier been agreed. This one-off pragmatic arrangement did not, however, in any way affect the underlying ongoing relationship of Cardtronics with FX, including that any post-June 2017 Supplies (that is, the Relevant Supplies), were provided on a rental basis. The later objective evidence is said to be consistent with the notion that what occurred in the middle of 2017 was a one-time gesture adopted pragmatically to placate someone then perceived to be a valuable customer. D.2 The Case of FX 87 The case of FX, it will come as no surprise to learn, is diametrically opposed. Although Mr Thompson had finished negotiations with Ms Wilderman on 29 June 2016 on the basis that there would be rental of any future Supplies, very promptly thereafter, having spoken to his accountant, he spoke to Ms Wilderman and was pellucid that he wished any finalised agreement to be on the basis of a sale of the proposed Supplies. On 5 July 2016, and later on 18 July 2016, there were conversations where it was confirmed that the arrangement was as Mr Thompson contends and this is also consistent with a text message which chased up a "deed" which would reflect such an arrangement. The sale agreement was a bespoke arrangement and the Deployer Load Forms that Mr Thompson needed to later fill in and certify (in order to procure the Supplies) did not reflect the true arrangement (because amended forms had not yet been tailored to take account of the sale arrangement). After making a number of attempts to procure the deed, matters became more urgent in the last quarter of the 2017 financial year because of the necessity to document the anticipated sale arrangement between FX and CCT. 88 Following further communications with his accountant, Mr Thompson took more active steps to ensure that the sale had been documented properly and pressed Cardtronics in this regard. He received nothing in response to his increasingly insistent requests, including no suggestion that his subjective understanding of the arrangement was anything other than correct. Finally, after expressing irritation as to the tardiness in documentation being finalised, he had a meeting with Ms Wilderman and her superior during which it was agreed that a tax invoice would be provided (which although not a finalised deed), would at least reflect the true nature of the bargain. Following this meeting, he received a tax invoice and later received a number of documents from Cardtronics, some of which made reference to the Initial Supplies as being subject to a rental agreement (which on any view of the case was wrong) and other documents, which consistently referred to the Relevant Supplies as being provided to FX on the basis of a rental agreement. This was of no moment to Mr Thompson, as he relied on the fact that in due course the true arrangement would be eventually reflected in new forms and appropriate documentation. E THE EVIDENCE GENERALLY AND THE PRINCIPAL CONTESTED FACTS E.1 General Aspects 89 As will no doubt already be evident, the evidence was comprised of a documentary tender supplemented by the three witnesses to whom I have already made reference: Ms Wilderman and Mr Wingrove from Cardtronics and Mr Thompson from FX. 90 Mr Thompson was, at least superficially, an impressive witness. He was apparently willing to make concessions to the cross-examiner and was responsive in his answers. He responded as someone who appeared to have a clear recollection of relevant events. The evidence of Ms Wilderman was more discursive and hesitant and at times she was non-responsive; despite this, I suspect these impressions of demeanour reflect the acuity and personalities of the witnesses and less their propensity for accurate recollection. What clearly emerged was that Mr Thompson was a confident person, and Ms Wilderman was a more diffident and conflict adverse individual. 91 The contest of credit between them must be assessed by reference to the fact that some aspects of each of these two witnesses' evidence gives reason for pause. 92 Ms Wilderman was adamant throughout her evidence that her discussions with Mr Thompson related to a rental and not a sale; indeed this was the case, even where she accepted she was unable to recall the substance of a conversation. As is evident from my findings above, this position was broadly consistent with the initial emails and the later statements of account sent to Mr Thompson. By way of contrast, FX points to the later emails of Mr Thompson in March, April and May 2017, which refer to a sale or purchase agreement and the need to change the statements of account to reflect the fact that the parties had not agreed to a rental and the failure of Ms Wilderman to protest Mr Thompson's asserted characterisation of the arrangements. Further, unsurprisingly, reliance is placed by FX on: (a) internal communications within Cardtronics which refer to the ATMs being sold rather than rented, both before and after an important meeting on 21 June 2017 and, in particular, Ms Wilderman's email of 27 June 2017; (b) that when Cardtronics eventually produced a draft equipment agreement to Mr Thompson in December 2018, it was couched as a sale rather than a rental agreement; and (c) that when Mr Thompson explained that he had issues, Ms Wilderman told Mr Wingrove that she did not "want to get into some 'he said/she said' debate" and did not expressly dispute his account of their earlier dealings. 93 The two most important attacks on Mr Thompson's credit were that: (a) he was a careful and conscientious businessman and it is risible to contend that he would have left a central and critical term to be discussed only orally when he had been particular, even pedantic, about the other less central terms; and (b) there was no credible explanation for the passage of time between the initial dealings up to July 2016 and his self-serving written follow-ups commencing in March 2017. 94 Before coming to my resolution of this conflict, I should make two preliminary points of significance: the first is the use that may be made of what, on Cardtronics' primary case, are post-contractual communications; the second, is the principled approach to dealing with the question as to whether an (and if so, what) inference should be drawn, by reason of the unexplained failure of FX to call Mr Diez in its case. 95 As to the first of these issues, when not dealing with issues of construction, but rather dealing with whether there was a contract or whether a particular term was incorporated (or whether the initial contract was superseded), post-contractual communications can be relevant and hence admissible: see ss 55 and 56 of the Evidence Act 1995 (Cth) (EA). As McLelland J explained in in Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251 at 9255, their probative value lies "in the light they throw on the proper interpretation of earlier communications alleged to constitute the contract": see also Heydon on Contract at 408-410 [9.1560]; further, if a subsequent representation made could amount to an admission (see s 87 of the EA), such an admission may be powerful evidence supportive of a particular aspect of a contract: BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 at [69] (Leeming JA). 96 As to the second issue, the legal position is clear. In Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345 at 412-413 [165]-[167], French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ discussed the evidentiary consequences of a party failing to call a witness, as follows: Disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly had been led. Principles governing the onus the standard of proof must faithfully be applied. And there are cases where demonstration that other evidence could have been, but was not, called may properly be taken into account in determining whether a party has proved its case to the requisite standard... Lord Mansfield's dictum in Blatch v Archer that "[i]t is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted" is not to be understood as countenancing any departure from any of these rules. Indeed, in Blatch v Archer itself, Lord Mansfield concluded that the maxim was not engaged for "it would have been very improper to have called" the person whose account of events was not available to the court. This Court's decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence could have been called, but was not, may be used. The essential facts of the case, though well known, should be restated. The personal representative of a driver who had died in a collision with another vehicle brought an action for damages on her behalf and on behalf of the deceased driver's dependents. The plaintiff's case depended on demonstration that the other driver's negligence was a cause of the accident. The plaintiff sought to demonstrate negligence by having the tribunal of fact (in that case a jury) infer from facts concerning the road and the two vehicles involved that the collision had occurred when the defendant's vehicle was on the wrong side of the road. One of the defendants, the surviving driver, did not give evidence at the trial. The Court divided about whether the inference which the plaintiff sought to have the jury draw about where the collision occurred was an inference that was open on the evidence. But the Court held that any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn where a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation of his absence. (citations omitted) 97 Further, at 432 [232], Heydon J explained the inferences that may be drawn from the failure of a witness to be called: One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party. (emphasis added, citation omitted) 98 With these principles in mind, I now turn to my findings as to the disputed communications. E.2 Findings as to Principal Contested Facts 99 The alleged conversation on 30 June 2016 between Mr Thompson and his accountant Mr Diez is of signal importance. As noted above, Mr Thompson gave evidence that he had a conversation with his accountant, Mr Diez, which caused him to contact Cardtronics and renegotiate the agreement such that the ATMs were to be owned outright by FX, rather than title passing upon full payment. 100 I reject the evidence of Mr Thompson in this regard. I do so for a number of reasons, but one predominates: Mr Thompson, as his written communications make clear, was a punctilious and exacting person when it came to recording his understanding of what he proposed or had agreed. He was keen to (and adept in) putting forward his commercial position unambiguously. In these circumstances, it is quite improbable that something so significant as to whether the Supplies would be owned outright, would not have been the subject of some specific contemporaneous communication following the alleged conversation with his accountant (whether with Mr Diez or with Ms Wilderman). I am conscious the alleged communication occurred on 30 June 2016, a day which would have been a notoriously busy one for Mr Diez, and in these circumstances it is perhaps understandable that his advice is not recorded in some email from him and there is no contemporaneous file note; but it strikes me as odd that there was no subsequent communication between Mr Thompson and Mr Diez which corroborates this communication or other contemporaneous material corroborating this evidence. 101 It may be that something was discussed on the day between Mr Thompson and Mr Diez (although notably no evidence was provided as to the existence of the telephone call by the tender of telephone records). I reach the conclusion the telephone call did not take place in the terms recounted by Mr Thompson with greater confidence by reason of the failure, without explanation, to call Mr Diez or to tender any document recording any communication with Mr Diez on the relevant date, or recording or referring to any advice. Although I do not infer that any evidence of Mr Diez would have been positively adverse to FX, it is notable that the one person independent of the dispute that could have corroborated Mr Thompson's account was not brought before the Court. 102 In making this finding I have had regard to the evidence summarised at [92] above including, importantly, the curious behaviour of Ms Wilderman after March 2017. Mr Thompson became very keen in March, April and May 2017 to make sure he asserted an agreement on the terms he then alleged had been struck and the need to change the statements of account to reflect a sale arrangement. By this stage, it is plain he had a commercial interest in doing so given his intention to transfer ownership of the Initial Supplies to a company related to FX. Ms Wilderman's failure to protest was somewhat odd (and even more odd was her internal communications within Cardtronics referring to the ATMs being sold rather than rented), but I think this is explicable. Ms Wilderman struck me as somewhat conflict-averse and this trait, combined with her desire not to disrupt an otherwise lucrative commercial relationship, does explain why she did not push back forcefully against an insistent customer. Interestingly, although not focused on by Cardtronics in submissions, one later communication seemed to me to provide some insight as to what was going on: when Ms Wilderman told Mr Wingrove that she did not "want to get into some 'he said/she said' debate"; there is only a need for a "debate" as to the contents of oral dealings if the relevant interlocutors have different recollections. This email is also consistent with Ms Wilderman's oral evidence that she might not have replied because she would have wanted to avoid any unpleasantness. The reason why such a debate did not take place was because Ms Wilderman did not want to have a stoush with a forceful and valuable customer and potentially alienate him over a matter, which at that time, she did not regard as being particularly significant. This finding is also consistent with the evidence of Mr Wingrove, who seemed to me to be a witness attempting to give an accurate account. 103 This finding obviously has consequences. It informs my conclusion that any further conversations between Mr Thompson and Ms Wilderman during the balance of 2016 did not include discussion of Mr Thompson recounting advice he had received from Mr Diez nor any representation by Ms Wilderman that Cardtronics did not have any issue with FX owning the Supplies upfront. Some conversations took place, but there is no objective documentary evidence which is consistent with them occurring in the terms suggested by Mr Thompson. In particular, as to the calls: (1) on 1 July, given that Mr Thompson had previously indicated that he would be prepared to enter into an executed contract (based on a detailed exchange of the relevant terms) the notion that Mr Thompson would leave such a central term to an oral exchange is one I do not find at all persuasive; (2) on 4 July, I do not accept that Mr Thompson raised an issue with respect to the amendment to the Deployer Load Form to reflect an option to purchase the machines; there is no contemporaneous evidence either to the contents of this conversation or to the necessity to amend the Deployer Load Forms to reflect an option to purchase the machines in monthly instalments (and indeed as it happened, no such amendments were made to the Deployer Load Forms); and (3) on 5 July, I accept that a conversation took place whereby Ms Wilderman indicated the necessity to prepare a document in Cardtronics' Canadian office for preparation, but this does not undermine my belief that there was no agreement as to a sale arrangement being struck as to the Supplies (as I have explained, it was necessary for an agreement to be prepared by Cardtronics' head office in any event). 104 It follows from the above that I also accept the account of Ms Wilderman in relation to the meeting on 18 July 2016 when Mr Thompson dated the ATM Deployer Agreement and handed it to Ms Wilderman. Again, it seems to me quite inconsistent with Mr Thompson's usual commercial behaviour (as evident from the contemporaneous documents), that he would simply leave the finalisation of a sale agreement to informal discussions that have taken place without there being some confirmation that this was the nature of the bargain. Similarly, I do not accept his evidence that Ms Wilderman said that she would send a Deployer Load Form which would be amended to reflect an option to purchase in monthly instalments. There was no subsequent evidence in any written correspondence that the Deployer Load Form was supposed to be amended in this way and Mr Thompson continued to fill out and send the forms to Cardtronics in a form consistent with the original agreement of the parties. I make a similar finding in accepting Ms Wilderman's evidence as to the alleged telephone conversation with Mr Thompson on 21 July 2016. There is no adequate explanation as to why it took until 20 March 2017 for the first express request for confirmation of sale to be formalised when Cardtronics had been charging FX an "ATM Rental Fee" on and from August 2016. 105 I am satisfied the real explanation for Mr Thompson's belated insistence on an equipment sale agreement or taxation invoice in respect of the Initial Supplies, that is the 66 ATMs supplied to FX between August 2016 and June 2017, was his desire to transfer them to CCT and was not reflective of the earlier bargain. 106 It follows that I accept the accounts of Ms Wilderman and Mr Wingrove as to the meeting on 21 June 2017, and accept that what was decided was a one-off arrangement in respect of the Initial Supplies. In making this finding, I am conscious of the inconsistency between the account of Ms Wilderman and the internal email of 27 June 2017, reproduced at [74] above and that I consider the evidence given about the email by Ms Wilderman as less than entirely satisfactory. I find Ms Wilderman was keen to please Mr Thompson and was willing to put in place an internal paper trail which provided verisimilitude to the narrative that Mr Thompson was insisting upon. The fact that a misleading internal email was sent reflects poorly on Ms Wilderman, and the lack of reaction from Mr Wingrove does not reflect well upon him. No doubt they both thought it was relatively innocuous to put in place internal paperwork which assisted in achieving the end they desired. Notwithstanding that creating a misleading paper trail is commercial behaviour to be deprecated, the subjective motivation for the conduct of Ms Wilderman and Mr Wingrove becomes more understandable when one reflects on the fact that as at June 2017, there does not appear to have ever been any indication from Mr Thompson that he was intending to do anything other than rent the ATMs for the full period of three or five years as had been originally anticipated by Cardtronics (with the result the Initial Supplies would have been transferred upon full payment of the rental payments in any event). 107 I am further fortified in my view of the outcome of the 21 June 2017 meeting, having had regard to the statements of account in evidence which were issued subsequently to that meeting. As explained at [79] above, the statements of account appear to have been amended after the meeting to reflect a different treatment of the Initial Supplies and the Relevant Supplies provided in the new financial year. Although not all of the statements are consistent and make sense on any view of the case, the difference in treatment generally tends to suggest that a separate arrangement existed pertaining to the Initial Supplies. For completeness, I should add two further comments: first, as to FX's reliance upon the "Terms of Sale" (see [92] above), this goes nowhere when the full terms of the agreement are taken into account; the document makes clear that title in the goods only passes upon full payment, at the conclusion of the three or five year term; secondly, although not determinative, it was apparent from Mr Thompson's evidence, in answer to some questions posed by me, that he was unsure as to the nature of the arrangements between FX (which apparently had the benefit of the income stream related to the Supplies) and CCT (the company which was supposed to own all the Initial Supplies post-30 June 2017). Although some accounting records were tendered, in the absence of financial reports, including the financial reports of FX for the year ended 30 June 2018, to the extent it matters, I am not satisfied I know the answer to the question as to how FX was (and is) treating the Relevant Supplies in its books and records. F THE TERMS OF THE SUPPLIES 108 I think the contractual analysis in this case has become somewhat overcomplicated. Each of the parties make alternate contentions. 109 As to the initial agreement in mid-2016: (1) the initial case of Cardtronics was that the agreement was a wholly written agreement, constituted by the exchange of six emails between the parties, which amounted to either a conditional sale agreement, a hire purchase agreement or a PPS Lease within the meaning of ss 12 and 13 of the PPSA; the nature of the agreement morphed during the course of the hearing and in final submissions what was suggested was that there was an agreement which set out the "master terms" upon which any further provision of Supplies would be based and that it was unnecessary for FX to take any Supplies on these terms (or any Supplies at all) but that if a supply was identified on the Deployer Load Form to be a rental, it was a rental on the terms that had been agreed; that is to say, there was an initial agreement which was confined to setting out the terms pursuant to which any rentals would be based, which were subject to a further contract at the time each Supply was requested by the completion of a Deployer Load Form; when populated electronically, each Deployer Load Form contained a number of fields with drop-down menus and, under the field "ATM model", FX indicated whether the relevant ATM was to be hired or purchased from Cardtronics or supplied by FX itself (with the intention that Cardtronics provide services in relation to the ATM). Under the field "ATM to use" of each Deployer Load Form, the ATM model, lease term and rental amount payable monthly was specified and FX warranted that it sought to hire the relevant ATM from Cardtronics. The Relevant Supplies were made accordingly and in this way, it is said there were a series of rental agreements each of which created a "PPS lease" within the meaning of s 13 of the PPSA. (2) the case of FX is that the agreement was a partly written, partly oral agreement for the sale of the Supplies, with payment of the purchase price in instalments but, consistent with ss 19 and 21 (Rule 5) of the Sale of Goods Act 1896 (Qld), property in the Supplies passed upon delivery to FX; the alternative case of FX is that the parties did not reach a concluded agreement giving rise to a security interest, or that their dealings fall within the so-called third class of Masters v Cameron (1954) 91 CLR 353 (in that the parties did not intend to make a concluded bargain at all unless and until they executed a formal contract giving rise to a security interest). 110 As to what occurred in mid-2017: (1) the case of Cardtronics is that in respect of the Initial Supplies, a separate agreement was entered into which was formalised by the provision of a tax invoice dated 29 June 2017, but that any Relevant Supplies were to be supplied pursuant to the terms of the earlier agreement which remained in place; alternatively, upon the completion of any Deployer Load Forms, a separate Deployer Load Form Agreement was entered into; (2) the primary case of FX is that no separate agreement was entered into; the provision of a tax invoice on 29 June 2017 in relation to the Initial Supplies merely reflected that the terms of this agreement continued to apply to the Relevant Supplies. 111 It is arguable that irrespective of the states of mind of each of Mr Thompson and Ms Wilderman during their June and early July 2016 dealings; a reasonable person in the position of both parties would have thought that when Ms Wilderman sent Mr Thompson her email on 29 June 2016 at 8:29pm, that there was an unqualified expression of consent so as to mean an agreement had been reached as to the basis upon which future Supplies were to be made, subject to them being ordered. Having said this, if this was not the case, on any view of it, a bargain was struck by late July 2016, when the initial Deployer Load Terms were sent. By this time, there was no doubt that viewed objectively, in the absence of any further or other agreement in respect of these Supplies, the ATMs were supplied on the terms set out in the exchange of email correspondence previously sent. 112 Although it does not matter in determining the ultimate issue as to the basis upon which the Relevant Supplies were provided to FX, the better view is that the case advanced in final submissions by Cardtronics is correct. That is, following a consensus being reached on the terms upon which any future Supplies were to be made on 29 June 2016, a concluded individual agreement for a Supply was reached between Cardtronics and FX each and every time a relevant Deployer Load Form was filled out and provided to Cardtronics by FX, thus requiring Cardtronics to provide FX with an ATM within the specifications outlined in the relevant Deployer Load Form. 113 Critically, on each occasion, the Deployer Load Form provided that each of the Supplies took the form of a "rental", which, when again viewed objectively, must be understood to mean that there was an amount being paid not for the conveyance of the ATM, but rather for possession of the ATM for the agreed three or five year term. Put another way, construed objectively, a reasonable businessperson would have understood the commercial dealings amounted to an agreement that Cardtronics would retain a proprietary interest in each ATM until FX paid for the ATM in full. The fact that this accords with commonsense and would be thought to be what a bystander would assume to be the commercial reality of an arrangement of the present type, serves to fortify this conclusion. 114 As to what occurred in relation to the Initial Supplies (being the 66 ATMs the subject of the 29 June 2017 tax invoice), a separate agreement of sale was entered into notwithstanding the terms upon which those Supplies had previously been made and the basis upon which future Supplies would be made. It was a "one-off" arrangement. G CONCLUSION AND ORDERS 115 For reasons I touched on at the commencement of these reasons, I do not propose to provide answers to the separate questions as originally indicated. It seems to me that the preferable course is to make declarations which will determine on a final basis the terms of the supply of the Relevant Supplies, which is the relevant question to be addressed. The parties then can determine what, if any, further consequential relief is required to quell the overall controversy. 116 In the circumstances, the only order that I presently propose to make is for the parties to either agree or provide competing short minutes of order to reflect these reasons within seven days. If there is a contest between the competing orders then each party should provide a short submission, of no more than two pages, that sets out the basis upon which they seek the orders proposed. 117 These submissions should also deal with the costs of the preliminary hearing. Subject to hearing further from the parties, my preliminary view is that costs should follow the event and so that Cardtronics' costs of the hearing should be paid by FX. I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 28 February 2020 SCHEDULE OF PARTIES NSD 1083 of 2019 Defendants Fourth Defendant: CCT INVESTMENT HOLDINGS PTY LTD Fifth Defendant: REGSITRAR OF PERSONAL PROPERTY SECURITIES