Reported Decision : (2007) Aust Contract Reports 90-250 New South Wales Supreme Court CITATION : Leading Edge Events Australia Pty Ltd v Kiri Te Kanawa [2007] NSWSC 228 HEARING DATE(S) : 29, 30, 31 January 2007, 1, 5, 6 February 2007 JUDGMENT DATE : 21 March 2007 JURISDICTION : Equity - Commercial List JUDGMENT OF : Bergin J DECISION : No binding contract. Plaintiff entitled to recover expenses. Plaintiff's claim against the defendants for misleading or deceptive conduct fails. CATCHWORDS : [CONTRACT] - Whether the parties had reached oral agreement on all essential terms with the intention of entering into a written contract no different from those terms - [QUANTUM MERUIT/EQUITABLE ESTOPPEL] - Whether, having regard to various aspects of the defendants' conduct, it was reasonable to assume a written contract would be entered into - Whether plaintiff entitled to recovery of expenditure incurred based on that assumption - [MISLEADING OR DECEPTIVE CONDUCT] - Whether the defendants represented that the first defendant would perform at the Concerts - Whether misleading or deceptive - Whether plaintiff relied on misrepresentation LEGISLATION CITED : Fair Trading Act 1987 (NSW) Trade Practices Act 1974 (Cth) Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221 Brewer Street Investments Ltd v Barclays Woollen Co Ltd [1954] 1 QB 428 Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Ltd (1990) 20 NSWLR 26 Countrywide Communications Ltd v ICL Pathway Ltd [2000] CLC 324 E K Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172 Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 CASES CITED : Independent Grocers Co-operative Ltd v Noble Lowndes Superannuation Consultants Ltd (1993) 60 SASR 525 Integrated Computer Services Pty Ltd v Digital Equipment Corporation (Australia) Pty Ltd (1988) 5 BPR 11,110 Gissing v Gissing [1971] AC 886 Masters v Cameron (1954) 91 CLR 353 POS Media Online Ltd v Queensland Investment Corporation [2001] FCA 809 Regalian Properties plc v London Dockland Development Corp [1995] 1 WLR 212 Sabemo Pty Ltd v North Sydney Municipal Council [1977] 2 NSWLR 880 Sinclair v Rankin (No 2) (1908) 10 WALR 126 Sinclair, Scott & Co Ltd v Naughton (1929) 43 CLR 310 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 William Lacey (Hounslow) Ltd v Davis [1957] 1 WLR 932 Leading Edge Events Australia Pty Ltd (plaintiff) Kiri Te Kanawa (first defendant) PARTIES : Nick Grace Management Ltd (second defendant) Nick Grace (third defendant) Mittane Ltd (fourth defendant) FILE NUMBER(S) : SC 50161/2005 RW Evans (plaintiff) COUNSEL : AS McGrath/KE Day (first and fourth defendants) R Cobden SC (second and third defendants) Vizzone Ruggero & Associates (plaintiff) SOLICITORS : Henry Davis York (first and fourth defendants) TressCox (second and third defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST BERGIN J 21 MARCH 2007 50161/05 LEADING EDGE EVENTS AUSTRALIA PTY LTD v KIRI TE KANAWA & ORS JUDGMENT Introduction 1 The plaintiff, Leading Edge Events Australia Pty Limited, is a company incorporated in Victoria and describes itself as a "promoter of events in the entertainment industry". The plaintiff brings these proceedings against the first defendant, Kiri Te Kanawa (Dame Kiri), a renowned opera singer, the second defendant, Nick Grace Management Limited (NGM), a company carrying on the business of theatrical agent, the third defendant, Nick Grace (Mr Grace), a director of NGM, and the fourth defendant, Mittane Limited (Mittane), a company incorporated in Jersey, Channel Islands, through which the services of Dame Kiri are provided. 2 The plaintiff claims damages for breach of a contract allegedly entered into between it and a company known as Mitani Limited (Mitani), a company incorporated in Switzerland, later replaced by Mittane. It is alleged that Mitani agreed to provide the services of Dame Kiri to perform at concerts with John Farnham (Mr Farnham), a renowned Australian popular singer, in Sydney on 5 February 2005 and in Melbourne on 12 and 13 February 2005 (the Concerts); and that in breach of that agreement, Mittane refused to provide the services of Dame Kiri to perform at the Concerts. The plaintiff also claims that Dame Kiri warranted that she would perform at the Concerts, and in breach of that warranty failed to perform at the Concerts. The plaintiff also makes a claim for the expenditure it incurred on a quantum meruit basis, although not pleaded, and for restitution in relation to that expenditure based on an equitable estoppel claim. There are also claims against Dame Kiri for breach of s 42 of the Fair Trading Act 1987 (NSW) (FTA) and against NGM and Mittane for breach of s 52 of the Trade Practices Act 1974 (Cth) (TPA), in relation to alleged representations that Dame Kiri would perform at the Concerts. Finally, there are claims against Dame Kiri and Mr Grace that within the meaning of s 75B of the TPA they were knowingly involved respectively in Mittane's and NGM's breaches of s 52 of the TPA. 3 The plaintiff conceded that it was "difficult" to ascertain the time at which the alleged contract was made in this case (tr 428). It was submitted that such ascertainment was heavily dependent upon a detailed analysis of the communications, both oral and written, between the parties and others during the period June 2003 to April 2004. The majority of that analysis is in any event necessary for the determination of the plaintiff's other claims in estoppel and for misleading or deceptive conduct. In these circumstances it is appropriate to describe the parties and others who were part of or party to those communications and events over that period. The parties and others 4 The directors of the plaintiff are Frank Lee Williams (Mr Williams) and Eileen Rosalind Newbury (Ms Newbury). Mr Williams and Ms Newbury became joint directors of the plaintiff in 2002, when they decided to pursue together the business of promoting events in the entertainment industry. Mr Williams' experience had been mainly in the promotion of golfing events whilst employed as the General Manager of International Management Group (IMG) between 1988 and 1994. From 1994 to 1999 he lived in Florida, USA, working as the personal agent of the Australian champion golfer, Greg Norman. After returning to Australia in 1999 Mr Williams continued to look after Mr Norman's Australian affairs until 2001 and was also a consultant to entities in the golfing industry. Ms Newbury's experience was as an events co-ordinator in the 1980s and early 1990s. In 1996 Ms Newbury commenced operating under the business name "Leading Edge Events", promoting various large events in which she had particular experience with the preparation of budgets and obtaining sponsorships. 5 Whilst Mr Williams was employed at IMG it promoted some of Dame Kiri's concert performances. At that time Mr Williams' role was to source and screen potential performances for Dame Kiri, to negotiate the terms on which she would appear and to liaise with her and her then husband, in relation to the detail of those performances. Mr Williams' evidence was that he "put the deals together", organised sponsorship and ticket sales to the general public, selected and secured venues and supervised the merchandising, advertising and marketing in respect of Dame Kiri's performances. In his role as the General Manager of IMG, Mr Williams was involved in projects for three of Dame Kiri's performances: one at Mitchelton Winery (in Victoria) in 1989; another at the Melbourne Concert Hall in 1990; and a further concert at Werribee Park in Victoria in 1993. 6 Dame Kiri is a classically trained lyric soprano and has been singing since three years of age. She has been a full time opera singer since 1969 and in 1982 was made a Dame of the British Empire by Her Majesty Queen Elizabeth II. In 1990 Dame Kiri was invested with the Companion Order of Australia and was awarded the Order of New Zealand in the 1995 Queen's Birthday Honours List. Dame Kiri has received numerous honorary degrees and doctorates from universities around the world and is an honorary fellow at the Royal Academy of Music in London and a visiting professor at the Royal College of Music in London. Dame Kiri performs an average of 20-30 concerts around the world every year, including orchestral concerts, piano recitals, charity concerts, private engagements and concerts for the Kiri Te Kanawa Foundation (the Foundation). Dame Kiri's musical director is Julian Reynolds. 7 Dame Kiri spends the majority of her time in the United Kingdom and New Zealand when not performing in other countries. One of her residences is in the Bay of Islands on the north east coast of the north island of New Zealand and is some hours by road from Auckland. Dame Kiri's 60th birthday was on 6 March 2004, and she had planned to celebrate it at a party with guests, some of whom had travelled from other parts of the world, at her Bay of Islands residence on 1 March 2004. That celebration and the arrival of guests prior to it, impacted on the time Dame Kiri had available for a planned meeting with Mr Farnham in Auckland on Sunday 29 February 2004. 8 Dame Kiri was an "employee" of Mitani up to 31 December 2003, and from 1 January 2004 became an "employee" of Mittane. Although Mittane was registered as a private company in Jersey in the Channel Islands on 1 October 2003, it did not commence operations until 1 January 2004. Since that date it has been Dame Kiri's employer in respect of her activities in all parts of the world other than the United Kingdom and the Irish Republic. Dame Kiri is the sole employee of Mittane and is not and never has been a shareholder or director of Mittane. Mittane performs numerous activities including liaising with financial and taxation advisers, musical assistants, musical directors or promoters and others who assist in arranging concerts for Dame Kiri. Andrew Quentin Schofield Green (Mr Green) has been a director of Mittane since 7 October 2003. Mr Neil Grainger of Stellar Financial Partners (Stellar), was described by Dame Kiri as her "financial person in England (tr 338). 9 Mr Grace completed his studies at the Guildhall School of Music and Drama in London in 1981 and then worked as Production Manager for the London City Ballet until 1984 when he started his own production company, NGM, to provide tour, production management and consultancy services. From 1991 to 1993 Mr Grace worked for IMG in London, producing special events for that company. Mr Grace left IMG in 1993 to focus on producing his own projects with NGM. Since then, NGM has produced many successful concerts and musicals. In 2002 Mr Grace created a dance company called "Bounce", referred to as a "streetdance" company, which has toured the UK, Europe and South Africa. Mr Grace is presently the Associate Producer and General Manager of the International Tour of the successful musical "Mamma Mia!". 10 NGM and Mr Grace were contracted to Mitani and another company, Impresario AG, between 1995 and 1998, to provide services to assist their employee, Dame Kiri, in relation to her performances in the United Kingdom. Between 1998 and 31 December 2003 NGM was engaged by Mitani to provide the services of Mr Grace to support and assist Dame Kiri outside of the United Kingdom, such services included: dealing with producers and promoters; acting as Dame Kiri's representative as required; and performing such other functions as Mitani may have reasonably required from time to time. Between 1 January 2004 and 16 November 2005, NGM was engaged by Mittane to provide the services of Mr Grace to support and assist Dame Kiri, pursuant to an agreement for services dated 23 December 2003 between Mittane, NGM and Mr Grace. Those services were to include the same range of services referred to above in the Mitani agreement. NGM and Mr Grace were responsible for finding commercial opportunities to recommend to Mitani, and later to Mittane, for Dame Kiri. NGM and Mr Grace liaised with the directors of those companies about his dealings with producers and promoters on production management issues, in particular the selection and approval of performance venues and orchestras. The respective agreements with Mitani and Mittane provided that nothing in those agreements rendered NGM or Mr Grace an employee, agent or partner of Mitani/Mittane and also provided that NGM and Mr Grace would indemnify Mitani/Mittane for all liabilities resulting from their acts or omissions whilst providing their services (cl 8 & cl 9). 11 Paul Duke Gleeson is the managing director of Paul Gleeson Associates and describes himself as a sports and entertainment management and marketing consultant, based in Auckland, New Zealand. He has been involved in the management, promotion and marketing of many high-profile sports and arts events over the past 30 years. Mr Gleeson first met Dame Kiri in 1982 and since 1983 has been involved in the organisation of all of Dame Kiri's concerts and endorsements in New Zealand, including television commercials and sponsorship arrangements, as well as being involved in the organisation of similar concerts in Australia. 12 Mr Gleeson's usual practice in relation to arrangements for Dame Kiri's performances, at least since 2002, has been to make contact with one or more of the directors of Mitani and later Mittane, to advise them of a promoter's interest. Those directors would then advise Mr Gleeson of whether or not any proposal suggested by the promoter was agreed to in principle. In the event that Mitani/Mittane agreed to the proposal in principle, Mr Gleeson would draw up a draft agreement for Mitani/Mittane's approval and either Mitani/Mittane or Mr Gleeson would send that agreement to the promoter for negotiation and execution, and then return it to him. 13 These arrangements were obviously aimed at, inter alia, protecting Dame Kiri from having to deal directly with promoters who wished to secure her agreement for performances. The arrangements were also structured to protect Dame Kiri from having to contract personally with promoters for such performances. It was the companies that employed Dame Kiri (Mitani/Mittane) that entered into those contracts with promoters, in which they promised to procure the performance of their employee at the proposed performances. 14 Mr Farnham, a recipient of the Order of Australia, was not a witness in these proceedings. His career has spanned over thirty years and at the time of the events the subject of this litigation, he was lauded in the promotional material for the Concerts as Australia's top performing artist. He was inducted into the Australian Recording Industry Association (ARIA) Hall of Fame in 2003. Mr Farnham's musical director is Chong Lim. Glenn Dawson Wheatley (Mr Wheatley) is the managing director of Talentworks Pty Ltd (Talentworks), Mr Farnham's manager. Mr Wheatley has been involved in the entertainment industry for forty years and has been involved, personally and later through Talentworks, in the management of Mr Farnham since approximately 1982. In addition to managing Mr Farnham, Talentworks is also a concert promoter and artists' agent and has been involved in the entertainment industry since approximately 1994. 15 Adrian Lloyd Bohm is a concert promoter and theatrical producer who has been promoting concert tours and theatre productions in Australia and New Zealand over the past 26 years. Mr Bohm established the company Adrian Bohm Presents Pty Limited (ABP), of which he is the only director and shareholder, in the late 1980's and it is that company that promotes and produces the concerts and theatre productions. Mr Bohm promoted concerts for Dame Kiri in 2003 and for Mr Farnham in 2004. He also promoted a series of piano recitals for Dame Kiri in June 2006 in Brisbane, Sydney and Melbourne. Notwithstanding his prior involvement with Dame Kiri, no objection was taken to Mr Bohm purporting to give evidence as an expert. Mr Bohm gave some lay evidence of the reasons why Dame Kiri's 2003 concerts, of which ABP was the promoter, were less successful than anticipated (tr 385) to which I will refer later. 16 There are also references, in the communications and events referred to below, to officers of the Sydney Festival, the Botanical Gardens Trust/the Domain and the Werribee Park Mansion in Victoria in respect of the arrangements that were being put in place to secure the Domain and the Werribee Park Mansion, as venues for the Concerts on the planned dates in February 2005. Entertainment industry 17 The evidence in this case establishes that the business of promoters operating in the entertainment industry is in many respects like any other entrepreneurial commercial enterprise where commercial risks are taken in the pursuit of profit. However a distinguishing feature of the risk in the entertainment industry is that in many instances there is heavy reliance on the performance of one person to achieve that profit. It is common for the performing artist to be "managed" by an agent with whom the promoter must negotiate and contract for the services of the performer. In this way the commercial matters are left to the agents and/or managers whilst the performer is more focused on creativity. That is not to say that the performer is disinterested in the pursuit of profit. As Dame Kiri admitted in her evidence, sensibly in my view, the fact that a fee may be $50,000 or $200,000 would "make a difference" to a willingness to perform (tr 304). 18 Mr Bohm's evidence provided a little insight into some of the risks for the promoter in the entertainment industry. His evidence was that there are many costs that are incurred in relation to promoting a concert that cannot be recouped until significant amounts of tickets are sold for the concert. He said it is common practice within the concert promotions industry for the performance contract to provide that 50% of the performance fee is to be paid to the artist (or the artist's employer or management company) at the time that the performance contract is signed with the balance being paid just prior to the concert. It is common for that fee to be non-refundable if the concert is cancelled because the ticket sales are not meeting expectations. Mr Bohm also gave evidence that the promoter needs to be able to have the funds available to it to meet such expenses and to take the risk of loss of those funds. He said that a large concert for an established artist, such as one of the concerts that he had promoted at a winery, will cost somewhere between $500,000 and $700,000 in upfront expenses to stage. 19 There was an unsuccessful attempt to elicit evidence from Mr Bohm of a so-called industry practice in relation to the promoter's risk prior to a contract being signed. However Mr Bohm did give evidence that prior to a contract being signed, he limits ABP's expenditure in relation to a proposed concert to no more than $5,000 to $10,000 because he takes the view that he carries the risk prior to that time. That approach seems to me to be commercially sound, however much will depend upon the particular negotiations and the particular contract. 20 The process of determining whether an agreement was reached between the plaintiff and Mittane to procure the services of its employee, Dame Kiri, to perform at the Concerts, has not been assisted by the plaintiff's approach at trial. I will make further reference to that approach later, but at this stage I merely record that it has made it necessary to adopt the following rather lengthy recitation of the detail of the events and communications between the parties between June 2003 and June 2004. The first period is between June 2003 and December 2003, during which it is alleged that agreement had been reached between the plaintiff and Mittane. The second period is between January 2004 and June 2004 during which the plaintiff relies upon the events and communications in support of its claim that a contract was entered into in December 2003. The plaintiff also relies upon the events and communications in both periods in support of its equitable estoppel case and its claims of misleading or deceptive conduct. June 2003 to December 2003 21 It was in 2003 that Mr Williams had the idea of replicating the 1993 Werribee Park concert. In June 2003 he made contact with Paul Gleeson in New Zealand to find out how to contact Dame Kiri. On 18 June 2003 Mr Williams wrote to Dame Kiri, via Mr Gleeson, in the following terms: Long time no speak – trust you are well! I was thinking I would like to duplicate a concert next year similar to the one we held at Werribee Park some years ago. Obviously we would structure a deal based on ticket sales but I have an idea where we could do a vast concert for the masses with sponsorship from a major company, similar to when I did the Nissan deal. Who would you like me to talk to about this as I seem to have lost touch with your current situation? Look forward to catching up. 22 The "Nissan deal" in that email is a reference to the concert at the Melbourne Concert Hall in 1990 that Mr Williams claimed was a one-off concert for one of IMG's major corporate clients, Nissan, for it to provide corporate hospitality for its customer base. 23 On 24 June 2003 Mr Grace responded to Mr Williams' email, advising that he had passed it on to Dame Kiri and would be speaking to her about it in the following week. On 2 July 2003, Mr Williams sent a further email to Dame Kiri, via Mr Grace, in the following terms: Further to our enquiry, we have now found two locations, one in Sydney, one in Melbourne that would be ideal for a Kiri Concert. However, before proceeding further, I need to know: (a) Your level of interest (b) Appropriate dates when you are in this part of the world (c) How you would like me to structure the deal Therefore, could you let me know the answers to the above. I personally believe that we should structure the deal with a guarantee to you, plus a percentage of the gate receipts after budgeted expenses. Thereby, maximizing your income for the concerts. Rest assured that both concerts will be of the highest possible standard and that every effort will be made to ensure an easy and smooth operation. 24 On 3 July 2003 Mr Grace responded to Mr Williams by email in the following terms: [M]any thanks for your email. I saw Kiri yesterday to discuss this and she sends her kindest regards. To be perfectly honest, the level of interest will be dependant upon the financial offer. We would be happy to work on the structure you are proposing. Bearing in mind that Kiri performed three concerts in Australia in March of this year, what dates would you propose? I don't think it would work with less than two engagements. I'm with Kiri all day tomorrow (she's launching a ship on the Thames!) and will talk to her again if you can get back to me tonight! (Kiri is away on holiday for two weeks). I am copying this email to Paul Gleeson who, as you know, looks after Kiri's interests in NZ and Australia. I look forward to hearing from you. 25 On 4 July 2003 Mr Williams wrote again by email to Mr Grace in the following terms: We have spoken to the venues concerned and the perfect timing for us would be late January, early February 2005, or late 2004. One would be to launch a winery in the southern highlands of New South Wales and the other would be a venue in Melbourne. We would be willing to look at a third engagement, perhaps doing a joint venture with Paul in New Zealand. Obviously we will fit into your schedule when you feel it is a convenient time, but a long lead up time is very important. We could guarantee $200,000 fee per concert x 3 concerts, plus expenses or a 50/50 split of profits whichever is the greater. To maximise income we would need a commitment to the date, preferably as soon as possible to enable us to build the hype and advertising necessary to make each concert a blockbuster. Obviously, if we have time to build the concert and it will be the only event that Kiri will be doing in that period, her income will greatly exceed the guarantee as it will give us time to obtain sponsorships and corporate support. 26 On 7 July 2003 Mr Gleeson had a telephone conversation with Mr Williams in which Mr Williams spoke to him about the two concerts for Dame Kiri in Australia. Mr Williams asked Mr Gleeson whether he could identify a third concert venue in New Zealand with a capacity of 20,000. Mr Gleeson informed Mr Williams that he had been working for some time on two New Zealand piano recitals for Dame Kiri during January/February 2005 and suggested that Mr Williams perhaps consider Perth as a viable third option because of previous successful concerts previously held in that city. Mr Gleeson gave evidence that he said to Mr Williams: You should also seriously consider a support artist to sing with Kiri – preferably an Australian male which would increase the local interest. Anthony Warlow is a good possibility because there would be good duet programming possibilities. 27 On 8 July 2003 Mr Grace responded to Mr Williams' 4 July 2003 email in the following terms: [M]any thanks for your quick reply. Late January, early February 2005 would be ideal (late 2004 is impossible). I'm not sure if Kiri wants to do anything in NZ for 2005 as she will be quite active there in February/March 2004 – but lets speak to Paul first to see what he thinks. Our first preference would be to consider three Australian engagements to help amortise the costs (maybe one of these could be a private engagement – which could be a piano recital or an orchestral concert – what do you think?) Thankyou for the financial offer – we are happy to work on a guarantee (and expenses) against a 50/50 split of profits, whichever is greater. One question – would you act as sole promoter or will you have promoting partners? I know that Kiri would be more than happy to work with you again and we look forward to hearing from you, when possible, on preferred dates, venues and budgets. 28 On the same day Mr Williams responded to Mr Grace's email in the following terms: Ive spoken to Paul and he is looking into something for New Zealand but feels that as Kiri is doing something for her foundation early 2005 it might not be appropriate. Anyhow lets see what he comes back with Ive offered to co-produce with him if he wants to. At this moment in time I would prefer to be the sole promoter in Australia as it eliminates conflicts but if a major sponsor wants to co-produce I don't have a problem with that as most of the major companies have huge resources to promote as well as guaranteeing large ticket sales. Can you please confirm dates in Jan Feb 2005 one for Melbourne and one for Sydney. I will also approach private individuals (Richard Pratt) to see if we can do a private recital for his company. I would also appreciate receiving Kiri's contract and rider details so that there are no surprises when we come to draw up the legals. I am going to approach the Melbourne Symphony and the Sydney Symphony I presume that Kiri still has a personal preference as to her conductor. Anyhow this is all details down the track at this stage I just need a commitment and dates. 29 Mr Grace responded to Mr Williams on 9 July 2003 in the following terms: I'm out of the office today but I will arrange for Claudia to email you a standard draft contract and rider for your reference. Regarding dates, we are reasonably flexible, so please advise on your preferred dates. Please bear in mind that Kiri needs three days off between engagements (although one of these days could be a travel day). I look forward to hearing from you. 30 On 9 July 2003 an employee of NGM (Claudia Wood) sent an email to Mr Williams in the following terms: Further to Nick's email, I am attaching a sample contract together with riders, for your reference. Please note that the services of the conductor and sound engineer would need to be contracted separately. An indication of the type of costs involved: Conductor: for approx. GB ₤ 3,500 per concert plus a per diem to be negotiated, plus business class flight & hotel Sound Engineer: Fee of approx. GB ₤ 2,000 per concert plus a per diem to be negotiated, plus business class flight & hotel. Please could I also emphasise the rehearsal requirements. If we assume that it would be a different orchestra per venue, we would need nine hours of rehearsal on the two days before the concert day, plus a morning rehearsal (10am to 1pm) on stage on the day of the concert. I am attaching an generic orchestral line-up for Kiri's big concert programmes, to give you an idea of the numbers involved. I hope this gives you enough information for the time being. 31 The "standard draft contract" that was attached to that email was in the form of a letter on Mitani letterhead (the Mitani Letter), with provision for a signature for Mitani. At the last page after the section for Mitani's signature, there was a heading "Memorandum of Agreement", under which there appeared the words: "We hereby agree to the above terms and conditions which we confirm constitute a legally binding agreement between us" with provision for the date and the signature of the proposed contracting party. 32 The Mitani Letter dealt with a number of topics and under the heading "The Concerts", provided relevantly that: Mitani would procure Dame Kiri to perform at the Concerts (cl 1.1); the works to be performed at the Concert and the running order would be decided by "mutual agreement as soon as practicable" (cl 1.3); Mitani would procure Dame Kiri to attend "post-Concert sponsor's receptions" subject to the provisions set out in the Rider (cl 1.10); and that Dame Kiri was entitled to have collaborative input and be fully consulted on all creative aspects of the Concerts (cl 1.11). 33 Clause 4 provided as follows: 4. Financial Arrangements Fee: Subject to Negotiation The Performance Fee shall be non-refundable in any circumstances (including the cancellation of the Concerts due to KTK's illness or injury) other than cancellation of the Concerts due to the default of Mitani. Time shall be of the essence in making all payments under this Agreement. Failure to make any payment by the due date shall be deemed a material breach of the Company's obligations entitling Mitani to terminate this Agreement forthwith on notice without prejudice to any other right to damages Mitani may have. 34 Although there was reference in clause 4 to time being of the essence, there was no provision stipulating the time at or by which the "Fee" had to be paid, nor was there any provision stipulating the method by which payment was to be made. Clause 7 provided: 7. Sponsorship The involvement of any sponsor in the Concerts (including the display of signage) shall be subject to the approval of KTK (not to be unreasonably withheld or delayed) and the Company agrees that the involvement of any sponsors shall not imply in any way that KTK endorses any product. 35 Clause 11 provided relevantly: 11. General 11.1 Mitani warrants that to the best of its knowledge and belief at the time of signing this Agreement KTK is in good health and physically capable of carrying out her obligations as set out in this Agreement, and Mitani is not aware of any reason why KTK should not be able to perform at the Concerts in accordance with the terms of this Agreement. If requested by the Company, Mitani agrees that KTK will complete a medical affidavit in the form required by the Company. The Company undertakes to keep the contents of such affidavit confidential and only disclose it to insurers for the purpose of arranging insurance in connection with the Concerts. 11.2 Mitani hereby warrants and confirms that Mitani has the right to enter into this Agreement. Mitani also warrants and confirms that KTK has read and understands the foregoing agreement between the Company and Mitani and agrees to perform all of the services required to be performed by her hereunder and otherwise to comply with all obligations undertaken by the Company pursuant to the foregoing agreement sofar as they concern her. KTK shall look solely to Mitani for any and all moneys payable to her in connection with such services. In the event that Mitani is unable or fails to provide KTK's services under the foregoing agreement, KTK will be bound by and perform all the outstanding terms and conditions of this agreement requiring performance or compliance on her part. … 11.5 This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous discussions or correspondence in relation to its subject matter. 11.6 The terms of this Agreement may only be amended in writing signed by both parties. 36 On 16 July 2003 Mr Williams sent the following email to Mr Grace: We have now visited the various sites for Kiri's concerts, they are Werribee Park, Melbourne and Southern Highland Winery, Sydney. We believe the dates of the 5th Feb and 12th Feb 2005 would be ideal for our purposes. We have also contacted Kel McMillan of the Australian Philharmonic who we have both used on various occasions. Will you now prepare contracts for the above dates and add a proviso that Kiri will not be performing in Australia in 2004. Our research tells us that the last concert ticket sales were disappointing. Was this due to poor promotion, lack of sponsors or to ( sic ) short a lead up time or what? Can you confirm numbers sold. This will not affect the deal. I just want to see where they went wrong. Your input would be appreciated. I am confident that with a long lead up time and sponsorship support we will do very well. But I also believe that a Kiri concert prior in Australia would be too soon and damaging to the 2005 concerts. 37 Mr Grace had advised Mr Williams that one reservation that both he and Dame Kiri had about performing in Australia again, was that the concerts promoted by Mr Bohm's company ABP in early 2003 were not very successful. Mr Williams claimed that in a conversation with Dame Kiri in July 2003, Dame Kiri advised him that her last experience in Australia was not a good one and that she and Mr Grace had said that it was the last time that she would tour Australia. In cross-examination, Dame Kiri agreed that she had a telephone conversation with Mr Williams in about July 2003, and gave evidence that the "reservations" about returning to Australia at that time which were "not musical". Although Dame Kiri could not recall informing Mr Williams that her last experience in Australia was not a good one, she recalled saying words to the effect of "I don't think I need to go back there" (tr 304). 38 On 16 July 2003 Mr Gleeson wrote by email to Mr Williams asking him to ensure that future messages were copied to him directly saving Mr Grace from the need to forward them to him. Mr Gleeson advised that Dame Kiri's concerts in 2003 had been produced by Mr Bohm in the Hunter Valley, Tandunda in the Barossa Valley and the Myer Music Bowl in Melbourne; and expressed some opinions as to why the ticket sales were not up to expectations. 39 On 18 July 2003 Mr Williams wrote to Mr Grace in the following terms: I have been doing some research re Kiri's last concerts in Australia and the following has come to light. (a) Concerts badly promoted and marketed. (b) Advertising cut back dramatically. (c) TV and radio interviews (local only) not in the right programmes. (d) Kiri did very little in the way of quality interviews. (e) Promotion and marketing non existent. (f) Non of the special tour operators were given the opportunity to put packages together. (g) Tourism industry did not participate or sponsor. (h) Sponsor packages were not offered into the market place. Therefore I am not surprised that ticket sales were minimal. 40 Mr Grace responded to Mr Williams' email on 18 July 2003 advising that he thought Mr Williams was "absolutely correct". Mr Bohm accepted in evidence that the concerts were not particularly successful and proffered a reason that he probably misjudged the level of business that he expected it to do (tr 385). He analysed the concerts afterwards and claimed each one had its own case: three different cities, three different venues, three different circumstances (tr 385). He described each one as follows (tr 386-387): The South Australian one was an event that I produced. Previously Dame Kiri had been to Adelaide for an outdoor concert in the - about four or five hours drive from Adelaide, which was not successful, and I believe that affected my event. There were a lot of things around that. The person who did it, produced it, went into bankruptcy and there was a lot of bad publicity that surrounded that event. The second one was the Hunter Valley. Again, the Hunter event actually covered the costs, so I wasn't concerned about it too much. The Myer Music Bowl, the third concert, didn't work because the venue has a bad image and not many shows do work there, unless it is a very hot or successful act. 41 Mr Grace wrote to Mr Williams on 17 July 2003 in the following terms: I will be seeing Kiri w/c 4th August and will go through the venues and dates with her just to make sure she is OK to proceed prior to draft contracts. However, I should advise you that it is unlike[ly] she will accept the Australian Philharmonic who were very mediocre for all of Kiri's recent three concerts in Australia. Also, with hindsight, Adrian would have preferred to have had a different orchestra in each city, due to the costs of moving the Australian Philharmonic around. We don't mind either way (as long as they are top orchestras), but obviously different orchestras mean more rehearsals. It would be good to know what your orchestra options are, before I see Kiri in August, as I know this will be one of the first things she'll ask me. 42 Mr Williams responded on 18 July 2003 in the following terms: Strange as it may seem logistically it is considerable ( sic ) cheaper to stick with the one orchestra as it saves on rehearsal time. Also the Sydney Philharmonic is considerable ( sic ) more expensive almost twice as much for rehearsals. Im surprised that the orchestra was not up to scratch as they are acknowledge ( sic ) as the best in Australia. Could there have been a clash with the promoter or perhaps costs cutting due to ticket sales, who knows I can only speak as I find, and they have been excellent in all past concerts. However the final say must be Kiri's Im sure we will sort it out. Give her my best regards. 43 On 11 August 2003 Mr Williams wrote to Mr Grace in the following terms: Pre planning now underway for concerts. Venues secured. Need to sign contracts soon. Please confirm dates of 5th and 12th February, 2003 in Melbourne and Sydney confirmed. 44 On 11 August 2003 Mr Grace responded by email in the following terms: As already explained, I need to reassure Kiri regarding the choice(s) of orchestra(s) for the two engagements prior to any contractual commitment – please advise as soon as possible. As the contract will refer to a possible profit-share, I would also be grateful if you could send me, when possible, copies of the draft budgets which will eventually be attached to the agreement. I look forward to hearing from you. 45 That evening Mr Williams sent a further email to Mr Grace in the following terms: We would be happy for either yourself or Kiri to choose the orchestra if you have any preferences, but it is essential that we obtain that choice now to secure the appropriate dates. It seems apparent that the Melbourne Philharmonic Orchestra is a no-no for you. That leaves us with the following orchestras: 1. Sydney Symphony Orchestra 2. Melbourne Symphony Orchestra 3. Orchestra Victoria All three have worked with Kiri previously. Does Kiri have a preference from the above list? We cannot understand the concern regarding The Australian Philharmonic Orchestra as they have accompanied the three tenors and Pavarotti on two occasions, both highly successful. If you can be more explicit about your problem, perhaps we can solve it, but once again whatever Kiri wants in the way of an orchestra is fine by us. We will be glad to send a finalised budget when all other factors are put into place i.e. orchestra, rehearsal times, etc. My mobile phone number for Kiri is out of date, if she wants to ring me the number is (number provided). Although it would appear we have a long lead up time, it is imperative we now get moving and put the venues and orchestra in place. In my opinion, as I mentioned previously, the reason Kiri's previous concerts were not the success they should have been was (a) inexperience of the promoter (b) a short lead up time. Rest assured that this will not happen in our case. Could you give us an indication of the kind of repertoire she will be singing – we would suggest a different program to that used on the last occasion. 46 Mr Williams telephoned Mr Gleeson on about 19 or 20 August 2003 and advised him that Anthony Warlow was not available, and that Mr Farnham "might be a possibility" to strengthen the appeal of the Concerts. Mr Farnham had just completed a very successful concert tour and Mr Williams was also aware of concerts that had been held overseas which had jointly featured opera and "pop" singers. 47 Mr Williams telephoned Mr Wheatley and put the proposal to him. Mr Wheatley agreed that the proposal sounded good and that he would speak to Mr Farnham. Mr Wheatley subsequently telephoned Mr Williams and advised that he had spoken to Mr Farnham, and claimed that he was interested. Mr Wheatley asked Mr Williams whether it could be a "joint venture". Mr Williams advised Mr Wheatley that he was thinking it could be a four way split, and that he had offered Dame Kiri $200,000 per concert plus a share of the profits. He suggested offering Mr Farnham the same fee and that after the fees and expenses were paid the profits could be split four ways between the plaintiff, Mr Wheatley, Dame Kiri and Mr Farnham. 48 Mr Williams informed Mr Grace of the proposal to have a joint concert with Dame Kiri and Mr Farnham. Mr Grace said that he knew of Mr Farnham and Mr Williams claimed Mr Grace said that he thought it was a "great safety valve financially" and that he would talk to Dame Kiri. 49 On 22 August 2003 Mr Grace wrote to Mr Williams in the following terms: [M]any thanks for the chat today – it would be great to make all this happen (including a recording)! Kiri has actually just called (4.00am NZ time!) so I talked to her about John Farnham. She's very interested of course but, like all singers, is concerned there is enough suitable material for them to sing duets. She asked me for some of John's cds so I have asked Paul to do this for me as he will be seeing her later today in Auckland. I can't believe this will be a problem. You should receive a letter of intent from Mitani either later today or tomorrow latest. I spoke to Paul about the possible NZ recitals and we will not commit to any dates before 5 February unless agreed by all of us. Paul will also think about the possibility of staging one Kiri/John Farnham concert in NZ following the Australian dates. 50 By letter dated 21 August 2003 Mitani wrote to Mr Williams in the following terms: With regard to the services of KIRI TE KANAWA, I can confirm that we are provisionally holding the dates of 5th & 12th February 2005 for possible concerts in Australia (Melbourne & Sydney) featuring Kiri Te Kanawa and John Farnham. We look forward to receiving further details from you in due course. 51 By email dated 27 August 2003 Mr Grace advised Mr Williams that he had spoken to Dame Kiri who had listened to some of Mr Farnham's CDs and was "particularly interested as to the type of songs (duets)" both Mr Williams and Mr Wheatley had in mind for Dame Kiri and Mr Farnham. Mr Grace advised that any ideas would be most appreciated. 52 During September 2003 Mr Williams had further discussions with Mr Gleeson in New Zealand in relation to the prospect of having a joint concert in New Zealand following the Australian Concerts. Mr Williams also worked with Ms Newbury to work up a financial model for the Concerts with a view to producing an initial draft budget. He also had a number of meetings with Mr Wheatley in relation to the proposed arrangements between Talentworks and the plaintiff in respect of the Concerts. 53 Mr Williams had been hopeful of securing Government House for the Sydney concert, but the venue was too small to accommodate the anticipated numbers at the concert. Mr Williams and Ms Newbury then organised for an alternate site, the Domain, for the Sydney concert. 54 On 14 September 2003 Mr Williams again asked Mr Gleeson about a third venue in New Zealand, this time with a capacity of 25,000. Mr Gleeson claimed that the following conversation took place: Gleeson: I am still working on the two piano recitals in New Zealand during the same period. Williams: Don't confirm anything on those recitals until we have a better idea about an outdoor venue in New Zealand for a possible concert with Kiri and John Farnham. Gleeson: Ok. 55 On 24 September 2003 Mr Wheatley sent an email to Mr Williams stating "We are in!". On 30 September 2003 Mr Grace sent an email to Mr Williams advising that he was pleased to confirm that Dame Kiri "would be happy to work with Orchestra Victoria for both engagements". Mr Grace also advised that he was looking forward to receiving the draft budgets. On the same day Mr Williams sent an email to Mr Grace in the following terms: Everything progressing well, Farnham now confirmed in writing venues looking good. John and Glen; now working out possible programme and song suggestions two that I personally think could be appropriate would be Simply the Best (Tina Turner song) and for establishing rapport Anything you can do. (Annie Oakley). just suggestions from a layman who cant sing a note. I have asked Glen to send KiriDVD of Johns last concert (75,000 sold to date) can u give me an address to send. The deal I have struck with Farnhams company that this will be a joint production between Leading Edge Events (me) and Talent Works (Glen Wheatley) with guarantees of $200,000 per performance for Kiri and John. Then I will split 50/50 profits with Kiri and Glen will do the same with John. I will send budgets withinthe next week or so the bottom line is looking really good especially if we sell all the corporate sponsorships. There are also revenue streams that I am working on with Glen that at this time are not in the budget. ie. event cable television, memorabilia etc. Glen has asked who is Kiris recording company and thinking of a possible record prior to xmas 2004. John is with BMG and believes they would jump at the chance to record with both artists. How does Kiri feel about a third concert in WA or QLD we are currently looking for suitable sites in these areas. If you would like to draft a suitable contract based on what we have discussed please do so. I will keep you updated as and when things develop. 56 On 1 October 2003 Megan Smith, an employee of the plaintiff, sent a draft budget to Mr Grace. That email advised Mr Grace that the budget was in draft, but that it would give him an indication of "expected revenue". Ms Smith also advised that she had organised for the requested DVD to be sent to his office. The draft budget included a performance fee for Dame Kiri and Mr Farnham of $200,000 per concert "guaranteed against profits". It also included an amount for "Administration" of $100,000 and an amount for "Project Management" of $200,000 for each concert. The administration amount was to be paid to Talentworks and the project management amount was to be paid to the plaintiff. Mr Williams was cross-examined about these two amounts and it was suggested to him that he did not inform Mr Grace or Dame Kiri that those amounts were to be paid respectively to Talentworks and to the plaintiff. Mr Williams agreed that he did not identify the recipients of the payments but it seems to me that such an omission does not have a significant impact on the outcome of this case. It would have been obvious to any commercial operator that the administration/project management amount would have to paid to the entity or entities administering and/or managing the project. 57 Mr Gleeson was provided with copies of emails between the plaintiff and Mr Grace in which draft budgets were forwarded to NGM and Mr Grace. On 12 October 2003, Mr Gleeson sent an email to Mr Grace with his comments on the draft budget. Those comments related to 15 matters. Mr Gleeson suggested that the budget did not contain costs for accommodation and air fares of the two other people travelling with Dame Kiri. He suggested that there would be an additional $6,000 per concert in relation to power connections and an additional $4,000 per venue for catering for the crew. He highlighted the fact that there had been no reference to backstage facilities for the conductor, orchestra, etc., and that the autocue seemed too cheap and could be closer to $5,000. Mr Gleeson also made similar observations in relation to generators, lighting, plant hire, the Superscreen and the merchandise. He also noted his presumption that the production/management/admin figure was the equivalent of a facilitation fee and if so, expressed the view that it was "high". He observed that there was no reference to per diems for the conductor and the sound engineer, and there was no reference to travel required for the sound engineer. He also suggested that there could be an additional cost of at least $15,000 for fencing barriers and that there had been no reference to deductions from income for credit card and GST charges. Notwithstanding all of this detail, Mr Gleeson gave evidence that he did not review the draft budget "in great detail" but only with a view to providing his comments "on the most obvious matters" which occurred to him as he read it. Although Mr Gleeson may analyse budgets in far more depth than this analysis it was still a rather detailed response. 58 On 18 October 2003 Mr Williams sent an email to Mr Grace in the following terms: Everything proceeding on schedule we are in the process of refineing the budgets obviously there are some additional costings associated with "John ie his band etc". How is the contract progressing? When can I expect to receive? Also can u give an indication if Kiri is free to do a joint recording for John for release late next year. Or if in fact she wants to do anything else with him. He is by far the biggest entertainer from Australia. From the feedback Im getting from market research these special events are going to be highly successful. Give Kiri my best I will be in touch again soon with updates. We are having budget meetings with Talent Works this week and drawing up time lines for all concerned parties. 59 On 20 October 2005 Mr Grace wrote to Mr Williams by email apologising for taking so long to come back to him with the comments on the budget. Mr Grace made the following comments, quite a deal of which appeared to incorporate Mr Gleeson's suggestions: KTK [Dame Kiri] Hotels – as you know, Kiri always travel with two people – budget needs suite (Kiri) plus 2 executive singles. Airfares – similarly, Kiri needs: international (2 x first class, 1 x business class) and 3 x domestic. Orchestra – would like to check that orchestra cost includes: Full symphonic line-up including rhythm section (keyboards, electric bass and drums) – final line-up to be determined once programme has been agreed – have you agreed a minimum number of musicians? 3 x 3 hour studio rehearsals (over two days immediately prior to first concerts) plus one 3 hour sound check in each venue, preferably the night before – for your reference, if the sound checks had to be on the day of the concert they would need to be in the mornings as Kiri doesn't rehearse on the afternoon of a concert day. Do orchestra costs also include rehearsal studio hire, instrument hire, librarian, additional studio (with pianist) for piano rehearsals with John and Kiri and conductor prior to orchestra rehearsals? Please confirm orchestra availability as: 2 February - rehearsals 3 February - rehearsals 4 February – evening sound, lighting (and camera) check 5 February - concert 11 February – evening sound, lighting (and camera) check 12 February - concert Conductor airfare seems low (need to be business class) if he is coming from UK Does conductor incidentals include a per diem? … Production Management/Admin – seems rather expensive? -please explain. … Sound engineer – Kiri will definitely want her sound engineer to be part of this – he normally charges ₤2,000 per concert plus business class airfare, hotel and per diems. He mixes the live sound but is not a sound designer – you need a separate approved sound designer which I presume will be part of the sound 'package'. … Project Management – please could you explain. … I can't see a line item for: 1. plant hire (could be $3,000?) 2. fencing barriers (could be at least $15,000?). 3. Superscreen – I would imagine we would require at least one outdoor screen with 20,000 capacities – (could easily be $40,000+)? 4. Cancellation insurance 5. Trucking 6. Crew catering 7. Misc. production costs 8. Musical arrangements – sure we will need some songs rearranged for both Kiri and John and for full orchestra? 9. Legal fees. 10. Third party accountancy fees. CONTRACT Draft contract will follow as soon as possible for your comments. RECORDING We should definitely explore this. I think we need Kiri's and John's musical supervisors to meet/discuss suitable repertoire for the concert and for a possible recording – do you agree and if so, how do we set this up? 60 On 22 October 2003 Mr Williams sent an email to Mr Grace advising that he would send the latest "and hopefully the final" budget the following Monday. That email responded to Mr Grace's comments on the draft budget and included the following: Regarding your question re production management/administration seeming expensive – when you consider there is a 14 month lead up time and we already have a team of 6 working on this, you will realize it isn't … Response inside and outside the industry has been nothing short of extreme enthusiasm. And without exception they think the blend of Kiri and John together with the orchestra and settings will make these events memorable experiences. Could you please arrange some updated promotional material for Kiri to be sent through to us. 61 On 24 October 2003 Mr Grace sent an email to Mr Williams in the following terms: [T]hankyou for your email. I look forward to a final budget! We have great photos of Kiri but the best were used for the last Australian dates. Kiri needs a new photo shoot for Australia (and for other concerts in 2004/5) – I'm trying to sort this out asap. 62 On 24 October 2003 Mr Williams arranged for a further email to be sent to Mr Grace in the following terms: After further production meetings with Talentworks we believe that we have now nailed down the estimated budget. Obviously after the coming months the budget will evolve but this gives us a reasonable indication for the events. Please find budget attached. Once you have had a chance to digest perhaps we should speak over the weekend? A couple of questions that have come out of our meetings with Talentworks - Will Kiri want to use John Farnham's band? Or will she just use the orchestra? - When is Kiri in NZ or Australia over the next 18 months- - will there be any promotional opportunities for the concerts when she is in this part of the world - A huge revenue source on John Farnham's last tour was memorabilia of the concert. How does Kiri feel about this? Something that John has done before is a 'Hold onto Your Ticket' program. Ticket holders were able to send their ticket in to get framed with a signed photo of John on the night of the concert. Your thoughts on doing something similar for our concerts? 63 The enclosed budget anticipated three concerts: one in Sydney, one in Melbourne and one in either Brisbane or Perth. The performance fees for each artist remained at $200,000 per concert, "guaranteed against profits". The administration amount remained at $100,000 for each of the concerts and the project management amount remained at $200,000 for each of the concerts. The estimated profit in that budget for the three concerts was $3,423,407. 64 On 24 October 2003 Mr Grace wrote by email to Mr Williams thanking him for the revised budget and advising that due to production commitments in Stockholm, he would not be able to respond by the weekend but would do so "asap". That email included the following: John's band – I think it would be great if Kiri used both the orchestra and the band – we need to discuss this in a programme meeting. Of course Kiri must help with promotion when she is in NZ – for your reference she will be in NZ during JANUARY/FEBRUARY/AUGUST/LATE DECEMBER 2004. I guess you would want to fly her to Australia for promotion? Which is the best time to launch given the above periods when Kiri could participate? Merchandise – we would like to exploit this as much as possible so would be happy to consider any ideas such as signed photos. 65 On 7 November 2003 Mr Grace sent an email to Mr Williams advising that he was at that time in Copenhagen with Dame Kiri and he had spoken to her about "Australia 2005". It is apparent that Mr Williams had obtained a photograph of Dame Kiri on a Harley Davidson motorbike and had discussed with Mr Grace the use of such an image in promotional material. That email included the following: She's happy in principle to consider a second consecutive concert in Melbourne if there is a demand in ticket sales – which is good news! Bike photo: a little more complicated – Kiri has held onto this photo image for 10 years (I produced her 50th concert at the Royal Albert Hall and tried, unsuccessfully, to persuade her to let me use it as a 'centre-fold' in the souvenir programme as nobody at that time was aware of the image! – it would have been amazing! – she declined). I'm not sure if she will allow it – but have persuaded her to look at some mock-ups from you if you wish to proceed on the basis that it may be rejected?? Personally, I think it could be a great image with John. Kiri would like to also invite John to take part in her Kiri Te Kanawa Foundation launch in Auckland on 28 February 2004 (see attached draft press release). It's purely acoustic (Kiri unplugged!) – would John consider an acoustic duet with her? It may be a great way for the two of them to meet and to explore some material together in rehearsal. 66 The invitation in the last paragraph of this email was not referred to again in the evidence. In any event it appears that Mr Farnham would not have been able to accept it because he was performing in a concert in Napier, New Zealand, that same evening. 67 On 24 November 2003, Ms Newbury wrote to Mr Grace in the following terms: Frank and I have been discussing the Dame Kiri/John Farnham events. Could you please advise when we can expect the contract for Dame Kiri to be emailed to us. As discussed with Frank and yourself, we are looking at three events to be held in Australia. We need the contract to be signed as soon as possible to enable us to proceed further. We would like all contracts to be finalized and signed off by 1st December as we will be launching to the corporate market in February 2004. Can you please give us the exact February dates when Kiri will be in New Zealand so we can organize a launch date and fly her to Australia for the launch. We need to ascertain that John is also available at that time. We will send to you next week some creative design ideas for sponsor packages, posters, ticket folders, etc. and copy of launch invitation letter. 68 On about 5 December 2003 Mr Grace sent the following email to Mr Williams: [F]ollowing discussions with Kiri, I can confirm the following: SYDNEY - I advised Kiri that the venue will be the Botanical Gardens with a capacity of 15,000. Kiri approves an option for a second concert on the Sunday night. MELBOURNE Kiri has already approved an option for a second concert on the Sunday night. PRESS CONFERENCE Kiri has a full diary in February due to the launch of her Foundation – the only availability for press conferences would be: SUNDAY 8 FEB – FLY AUCKLAND – AUSTRALIA MONDAY 9 FEBRUARY – PRESS CONFERENCE & FLY TO SECOND CITY TUESDAY 10 FEB – PRESS CONFERENCE & FLY AUCKLAND I hope this works for you and with John's availability – please advise asap so I can make sure Kiri inks this in her diary! 69 On the same day Mr Williams wrote back to Mr Grace by email in the following terms: Would Kiri be available to attend launches/ press conferences in Australia in early March? John Farnham is not available in Feb and to organise the launches for the start of Feb would be pushing it time wise. Tentative dates for early March would be Melbourne launch on Wed 3rd March and Sydney launch on Thurs 4th March. How would these dates be for Kiri? … PS. Can you please forward the draft contract as soon as possible including the 2 concerts in Melb and Syd. We would like to get contracts finalised asap. 70 On 8 December 2003 Mr Grace wrote by email to Mr Grainger at Stellar attaching a copy of a form of contract referred to as his "draft for Australia" (the Mittane Letter) and stated that he was "basically happy" with it. He asked Mr Grainger to let him know if there were any comments that he may have in relation to it, and advised him not to worry about the schedules "too much", noting that he needed to send it to Mr Williams that week. Mr Grainger responded promptly to Mr Grace providing to him handwritten notations. 71 Mr Grace had also forwarded a copy of the Mittane Letter to Mr Gleeson by email on 7 December 2003, asking him to let him know whether he thought it was "ok". On 8 December 2003, Mr Gleeson responded by email advising that it looked "excellent (very thorough)", and made only three comments on minor matters. 72 Dame Kiri gave evidence that on 24 November 2003 she viewed the DVD of one of Mr Farnham's performances and observed that he had a very relaxed conversational style that was of some concern, because her performances of classical pieces do not lend themselves to continuous dialogue with the audience. Worse still, she observed that women's lingerie was thrown on to the stage and Mr Farnham collected it and held it during the performance, she thought, as some sort of "trophy". Dame Kiri claimed that she found that "embarrassing" and "disrespectful" to her (tr 313-314). In addition Dame Kiri had previously appeared with a pop singer in a concert that was an "uncomfortable" experience, and she was concerned not to repeat that experience. 73 It was not until 9 December 2003 that Dame Kiri raised this matter with Mr Grace, when they were both staying in the same hotel in Norwich in relation to one of her concerts. Mr Grace gave evidence that after informing him about her observations of the DVD, Dame Kiri said: "I would never want to be part of that kind of entertainment". Mr Grace suggested that Dame Kiri telephone Mr Williams and "let him know about your concerns and seek some reassurance". Dame Kiri then telephoned Mr Williams in Mr Grace's presence. Dame Kiri claimed that the following conversation took place: Dame Kiri: Frank, this is Kiri. I'm very concerned. I've watched the DVDs of John Farnham. They're absolutely horrendous. Undies were being thrown at him. He talks endlessly and it's not even funny. Williams: Don't worry. We'll script it. I've got complete control of John. There won't be a problem. 74 Mr Williams' recollection of the conversation was different. He claimed that Dame Kiri advised him that it bothered her that "knickers" were thrown onto the stage and said "that cannot happen". Mr Williams advised Dame Kiri that there would be security at stage front and that it would not happen. He claimed that Dame Kiri also said that Mr Farnham seemed "a bit chatty", and asked him whether he could "script" Mr Farnham and stop him chatting. Mr Williams claimed that Mr Farnham advised Dame Kiri that he could not stop Mr Farnham from relating to his audience and that Dame Kiri suggested that he might desist if she spoke to him. Mr Grace recalls hearing Dame Kiri say that she was only prepared to work with Mr Farnham if he could be controlled and have any dialogue "scripted". I prefer Mr Williams' recollection of this conversation. It is difficult to accept that Mr Williams, a promoter, would have said, as Dame Kiri claimed, that he had "complete control of John", a performing artist, or indeed that Dame Kiri would accept that Mr Williams could exercise such control. Not surprisingly, in her cross-examination, Dame Kiri diluted this claim to one of Mr Williams saying, "I can control it". 75 Dame Kiri's evidence was that despite Mr Williams' assurance, she remained concerned about the "clash of different musical styles" and thought it was imperative that she meet Mr Farnham, establish a rapport with him and agree on an artistic programme. Dame Kiri did not give evidence in her first statement of her conversation with Mr Grace immediately after her conversation with Mr Williams on 9 December 2003. However, Mr Grace did give evidence of that conversation. That evidence was tendered at a time in the trial when Dame Kiri and Mittane were pursuing a cross-claim against NGM and Mr Grace. Although the cross-claim was abandoned during the trial, this evidence was not withdrawn. Mr Grace gave evidence that the conversation was as follows: Dame Kiri: Frank tried his best to reassure me but I'm still worried about this and I still have no idea what we can sing together. Grace: If you really are concerned about performing with John, now is the time to stop the negotiations (which I'm quite happy to do if you want me to). If you are not sure about continuing, I should stop the negotiations with Frank as he is probably starting to incur costs. Dame Kiri: What kind of costs? Grace: Maybe he isn't, I don't know – he hasn't mentioned any costs, but he could be. Maybe deposits on venues, hotels and orchestras – I don't know. Dame Kiri: How much do you think that might be? Grace: I've got no idea how much maybe around one hundred thousand dollars, maybe less. Dame Kiri: No, don't stop, lets see how far you can go with it. 76 Dame Kiri made a second statement and denied that this conversation took place. I will return to this conflict in the evidence later. 77 On 10 December 2003 Mr Gleeson wrote to Mr Williams advising that he would be in Sydney for the following few days for a family wedding and that Mr Grace had suggested that he look at the concert venue. Mr Williams made arrangements for Mr Gleeson to be provided with a diagram/map of the Domain and Mr Gleeson visited the venue whilst he was in Sydney. 78 On 15 December 2003, Ms Newbury sent a facetious email in Mr Williams' name to Mr Grace stating: "No flowers. No chocolates. No contract. You don't love us any more! PS we are still at the same address!!". On 16 December 2003, Mr Grace sent the following email to Mr Williams: [O]n behalf of Mittane Ltd, please find enclosed first draft for the services of Kiri Te Kenawa with regard to the 2005 concerts in Australia with John Farnham. Please do not hesitate to call if you have any queries or comments. Once agreed, AJB Sports Management will provide you with a letter confirming that the GST will be "reversed charged (under S83 of GST legislation) and therefore tax invoices will not be required. This has the effect of saving you cashflow implications of the GST and saves Mittane registering for GST. AJB will also provide you with an indemnity from AJB covering the tax Mittane will pay. I look forward to hearing from you. 79 The Mittane Letter attached to the email was in the following terms: KIRI TE KANAWA – AUSTRALIA – FEBRUARY 2005 The purpose of this letter is to set out the arrangements agreed between our Promoter, Mittane Limited ("Mittane") and your company, Leading Edge Events ("the Promoter") pursuant to which Mittane has agreed to provide the services of Dame Kiri Te Kanawa ("KTK") in connection with concerts and optional concerts to be given by KTK as set out in Schedule A attached ("the Concerts"). The terms of our agreement are as follows: 1. The Concerts 1.1 Mittane will procure that KTK will perform at the Concerts, in a shared performance with John Farnham ("JFarnham"). 1.2 The Promoter will secure the services of, and contract separately: a) the conductor ("Conductor"), to be mutually agreed and final approval to be given by KTK (such approval not to be unreasonably withheld or delayed). b) the Victoria State Opera Orchestra ("Orchestra"), line-up as per Schedule C attached. c) J Farnham and the John Farnham Band ("Band"), line-up as per Schedule D attached. 1.3 The works to be performed at the Concerts and the running order shall be decided by mutual agreement as soon as practicable. It is agreed that KTK and JFarnham will share the programme content equally. 1.4 Mittane will procure that KTK attends, and Promoter will procure that JFarnham attends, all orchestral rehearsals for the Concerts on dates and in accordance with the rehearsal schedule below: Wednesday 2nd February 10.00-13.00 Orchestra Rehearsal Thursday 3rd February 10.00-13.00 Orchestra Rehearsal 14.00-17.00 Orchestra Rehearsal Friday 4th February evening 3 hour Lighting and Sound Check Saturday 5th February evening Concert Friday 11th February evening 3 hour Lighting and Sound Check Saturday 12th February evening Concert The Promoter will ensure that all rehearsals and the sound checks are closed to anyone not working on the Concerts. 1.5 The Promoter agrees to comply with the terms of the Rider annexed as Schedule B in connection with the Concerts. Where there is any conflict between the terms of the Rider and the terms of this Agreement, this Agreement shall take precedence. 1.6 The Promoter shall contract the services of KTK's approved UK-based Sound Designer, Martin Atkinson (Sound Designer). The lighting designer for the Concerts (who shall be contracted separately by the Promoter) and the sound and lighting specification will be subject to the approval of Mittane (such approval not to be unreasonably withheld or delayed). 1.7 The Promoter will be responsible for all music costs (including, without limitation, music hire and courier charges if applicable) and will provide all necessary music for the Concerts. 1.8 The Promoter shall arrange and pay for all related costs to obtain necessary visas and work permits for KTK, and her staff, as required in connection with the Concerts. 1.9 Mittane shall be entitled to twelve complimentary top price tickets for each of the Concerts. 1.10 Mittane shall procure that KTK attends one post-Concert sponsor's reception per Concert (if held) during which time KTK will circulate and meet the sponsor's important guests only, but KTK will not sit at a formal meal at such reception. Any such reception must be non-smoking until such time as KTK leaves the reception. 1.11 The Promoter confirms that both Mittane and KTK shall be entitled to have collaborative input and be fully consulted on all creative aspects of the Concerts. 2. Publicity 2.1 The Promoter shall ensure that KTK and JFarnham share equally top billing for the Concerts. The Promoter agrees there will be no other featured performer(s) participating in the Concerts. 2.2 The Promoter shall be entitled to use the approved name and likeness of KTK in connection with the advertising and promotion of the Concerts. Any photographs used for advertising or promotion shall be provided by Mittane. All artwork and all materials in any marketing or promotional materials which relate to the Concerts (including without limitation any photographs, profiles, biographies and running order) shall be subject to Mittane's prior approval (such approval not to be unreasonably withheld or delayed). 2.3 Mittane will procure that KTK participates in media interviews and associated promotional activities in connection with the Concerts, subject to KTK's availability and prior agreement on each occasion. 3. Merchandise 3.1 All use of KTK's name or likeness in merchandising relating to the Concerts shall be subject to approval by Mittane. 3.2 The Promoter will produce and sell, or arrange for other authorised parties to produce and sell, only authorised Concert related merchandise with regard to these Concerts, such merchandise to be approved in advance in writing by Mittane prior to production. 4. Liability/Inclement Weather Any decision to cancel any of the Concerts due to inclement weather shall be taken by the Promoter in consultation with Mittane. In the event of the cancellation of any of the Concerts due to inclement weather, the Promoter shall nonetheless pay the full remuneration due to Mittane under this agreement. 5. Optional Concerts The decision to confirm the Optional Concerts ("Optional Concerts") referred to in Schedule A will be made by mutual agreement. The Promoter must confirm the Optional Concert for Sydney no later than six weeks before the date of the Sydney concert, and confirm the Optional Concert for Melbourne no later than six weeks before the date of the Melbourne Concert. Neither Optional Concert may be confirmed until the preceding Concert has reached a minimum of 75% capacity of tickets sold. 6. Financial Arrangement – Performance Fees In consideration of Mittane fulfilling its obligations under this Agreement, and subject to clause 14 below, the Promoter agree to pay to Mittane's Australian agent, AJB Sports Management Pty Limited ABN 980 97708 524 ("AJB") at Suite 303, 370 Pitt Street, Sydney 2000: a guaranteed performance fee of A$ 400,000 (four hundred thousand Australian dollars) ("the Performance Fee"), calculated on the basis of two hundred thousand Australian dollars (A$200,000) per concert with regard to the concerts of 5th and 12th February 2005; Payment of the Performance Fee will be due for payment in the following instalments subject to receipt of invoice: 07 February 2005 A$ 200,000 14 February 2005 A$ 200,000 Payments will be made by way of an irrevocable bank letter of credit in a form acceptable to Mittane and AJB and sent to Mittane with a copy to AJB within seven (7) days of signature of this Agreement. AJB's designated bank account details are as follows: [provided] 7. Financial Arrangement – Optional Concerts Should one or both of the Optional Concerts be confirmed in writing by the Promoter to Mittane, the Promoter agrees to pay to Mittane's Australian agent,AJB: a guaranteed performance fee of A$ 200,000 (two hundred thousand Australian dollars) ("the Optional Concert Fee") per Optional Concert. Payment of the Optional Concert Fee will be due for payment in the following instalments subject to receipt of invoice: 07 February 2005 A$ 200,000 payable if the Optional Concert on 6 February is confirmed 14 February 2005 A$ 200,000 payable if the Optional Concert on 13 February is confirmed Payments will be made by way of an irrevocable bank letter of credit in a form acceptable to Mittane and AJB and sent to Mittane with a copy of AJB within seven (7) days of the Promoter written confirmation of Optional Concert(s). AJB's designated bank account details as above. 8. Financial Arrangement – Profit Share 8.1 In consideration of Mittane fulfilling its obligations under this Agreement, the Promoter agree to pay to Mittane's Australian agent, AJB Sports Management Pty Limited ABN 980 97708 524 ("AJB") at Suite 303, 370 Pitt Street, Sydney 2000, in addition to the sums as referred to in clauses 6 and 7. a profit share ("Profit Share") of 25% of Net Profits of the Concerts. 8.2 Both parties agree the outline budget attached as Schedule E which is THE PROMOTER's bona fide estimate of the costs of the Concerts ("the Budget"). Both parties acknowledge that the Budget may change and that they shall consult each other about any increase in the Budget as soon as practicable and shall each use all their reasonable endeavours to ensure that the Budget does not increase nor is exceeded. 8.3 THE PROMOTER agrees to be responsible for the security and collection of all revenue received in connection with the Concerts by way of a separate designated trust account whereby such funds will not be used or commingled by THE PROMOTER with any other funds. 8.4 For the purposes of this agreement: "Net Profits" shall mean the amount by which Revenue exceeds Expenses. "Net Losses" shall mean the amount by which Expenses exceed Revenue. "Revenue" shall mean all gross income derived from the Concerts, including but not limited to all box-office, sponsorship, television rights, catering and drinks rights, corporate hospitality sales, public hospitality sales, merchandise and printed programme revenue. "Expenses" shall mean all running costs and costs of Concerts as set out in the Budget. 8.5 THE PROMOTER shall be solely responsible for the Net Losses (if any). 8.6 Throughout the entire period of this Agreement the Promoter will regularly notify Mittane of any and all Revenue received and any and all Expenses incurred in connection with the Concerts. 8.7 As soon as practicable following the Concerts and not later than thirty days thereafter Mittane and the Promoter will agree a statement of settlement showing of all Revenue received and all Expenses incurred in connection with the Concerts together with Mittane's share of the Net Profits, if any, in relation to the Concerts, such statement to be prepared by Mittane's and the Promoter's nominated independent chartered accountant, (add name and address) 8.8 Final settlement will be made not more than seven days after agreement of the statement referred to in Clause 8.7. 8.9 Mittane shall be entitled on giving reasonable notice to inspect the Promoter's books, records and bank statements in relation to the Concerts in order to verify the statement of settlement referred to in Clause 8.7. 8.10 Promoter will provide Mittane with weekly advance ticket sales information and sales to date both in total and by concert. 8.11 The Promoter agrees to limit the number of non-paying tickets to a maximum of 150 per Concert. 9. Financial Arrangement – Misc. 9.1 If for the purposes of the Goods and Services Tax legislation ("GST"), GST is payable in respect of the remuneration payable to Mittane under this agreement, such GST shall be in addition and payable by the Promoter. 9.2 AJB as agent for Mittane will be responsible for the deduction of any withholding tax or any other amount required to be deducted from the remuneration payable to Mittane under this agreement if required by any local law or regulation. 9.3 Time shall be of the essence in making all payments under this Agreement. Failure to make any payment by the due date shall be deemed a material breach of the Promoter's obligations entitling Mittane to terminate this Agreement forthwith on notice without prejudice to any other right to damages Mittane may have. 9.4 The Promoter confirm and warrant that no other artist performing at the Concerts will receive a greater fee or remuneration package than is payable pursuant to this Agreement. If, subsequent to signing this Agreement, agreement is reached with any other artist(s) to pay a greater fee or remuneration package than set out in this Agreement, the Promoter shall forthwith notify Mittane and the remuneration payable pursuant to this Agreement shall be increased to the level of the most highly remunerated artist. 9.5 The Performance Fee and Optional Concert Fee(s) shall be payable in any circumstances (including the cancellation of the Concerts due to KTK's illness or injury) other than cancellation of the Concerts due to the default of Mittane. 10. Transport and Accommodation The Promoter will provide the following in connection with the Concerts:- (i) the cash equivalent (within seven days of receipt of invoice from Mittane) of London/Australia/London first-class air travel for two people and business class air travel for one person; (ii) Auckland/Australia/Auckland business class air travel for one person {"Paul Gleeson"}; (iii) domestic business class travel within Australia as required for four people, the exact itinerary to be subject to agreement with Mittane; (iv) hotel accommodation in the form of four (4) first class rooms (including all meals) as required in connection with rehearsals and the Concerts; (v) local limousine transfers for KTK and her party as required during the rehearsal periods and at the Concert venues. 11. Recordings The fees referred to in clauses 6 and 7 shall include the right for the Promoter to make a television recording of one of the Concerts. Neither party shall arrange or permit any other radio, television or other broadcast or recording or still photographs of the Concerts, rehearsals or otherwise without the prior written consent of the other. In respect of any recoding of the Concerts for the purpose of a television broadcast, the Promoter shall ensure that: (a) Promoter has the right to broadcast two (2) deferred broadcast, within Australia only. The recording shall not be broadcast live. No broadcast will commence sooner than 24 hours after the final concert; (b) the recording will be the sole responsibility of Promoter and shall be carried out according to first class technical standards. Make-up staff if required will be supplied by Promoter; (c) the recording shall not be broadcast unless and until Mittane's approval of the final edit has been obtained (such approval not be unreasonably withheld or delayed); (d) the Concerts will be broadcast in their entirety and the order of the programme for the Concerts shall not be changed for the purposes of such broadcast unless mutually agreed in writing by both parties. (e) camera positions shall be approved in advance by Mittane (such approval not to be unreasonably withheld or delayed). There will be no moving cameras without Mittane's approval; (f) the recording shall not be publicly announced prior to the Concerts dates, or without Mittane's approval; (g) Promoter is responsible for, and shall pay, all costs associated with production of the recording, and for clearance of all rights, for all parties involved with the Concerts. This Agreement pertains to the rights and approval of KTK only. Promoter is liable for paying the applicable fees to the national collecting society for composer rights in connection with the broadcasts; (h) Copyright in the recoding shall vest with Mittane, provided that any exploitation thereof shall be subject to this Agreement; (i) Promoter will supply to Mittane two Beta quality tapes of the entire television recording and Mittane retains the right to use short extracts of the recording for use in worldwide promotion of KTK for an unlimited period, at no cost; (j) Promoter shall have no audio rights (that is, the right to release the recording as audio and/or video recordings on record or tape or any other forms whatsoever) or any other rights whatsoever to the recording. 12. Sponsorship The involvement of any sponsor in the Concerts (including the display of signage) shall be subject to the approval of Mittane (not to be unreasonably withheld or delayed) and the Promoter agrees that the involvement of any sponsors shall not imply in any way that KTK endorses any product. 13. Exclusivity Mittane will procure that KTK does not appear in any other live performance in Australia from the date of this agreement until 31 days after the final concert. 14. Liability Neither party will have any liability for any failure to perform their obligation under this Agreement due to any cause beyond the parties' control, or any fire, earthquake, flood, epidemic, accident, explosion, casualty, the disruption of airline or other travel services, Act of God, the making of any municipal, state or federal law or ordnance by any legally constituted authority or the issue of any executive or judicial order. 15. Insurance The Promoter undertakes to ensure that all normal and adequate insurance in connection with the Concerts is put in place by the Promoter including public liability insurance and the Promoter undertakes to indemnify Mittane and KTK with regard to said insurance(s). 16. Contingency Insurance The Promoter undertakes to secure in its own name or with others and at its own cost and expense and as part of the agreed Budget, a policy of contingency insurance with a reputable insurer against all usual commercial risks associated with abandonment postponement or cancellation of performance of KTK and/or JFarnham and will ensure that KTK's and Mittane's interest is noted on such policy. Promoter agrees to provide Mittane upon request with evidence of the existence of such policy of insurance. 17. General 17.1 Mittane warrants that to the best of its knowledge and belief at the time of signing this Agreement KTK is in good health and physically capable of carrying out her obligations as set out in this Agreement, and Mittane is not aware of any reason why KTK should not be able to perform at the Concerts in accordance with the terms of this Agreement. If requested by the Promoter, Mittane agrees that KTK will complete a medical affidavit in the form required by the Promoter. The Promoter undertakes to keep the contents of such affidavit confidential and only disclose it to insurers for the purpose of arranging insurance in connection with the Concerts. 17.2 Mittane hereby warrants and confirms that Mittane has the right to enter into this Agreement. Mittane also warrants and confirms that KTK has read and understands the foregoing agreement between the Promoter and Mittane and agrees to perform all of the services required to be performed by her hereunder and otherwise to comply with all obligations undertaken by the Promoter pursuant to the foregoing agreement sofar as they concern her. KTK shall look solely to Mittane for any and all moneys payable to her in connection with such services. In the event that Mittane is unable or fails to provide KTK's services under the foregoing agreement, KTK will be bound by and perform all the outstanding terms and conditions of this agreement requiring performance or compliance on her part. 17.3 Either party may terminate this Agreement forthwith by notice in writing to the other in the event that: (i) the other shall commit a material breach of this Agreement and, in the case of a breach being capable of remedy, shall not remedy such breach within 7 days of being given notice in writing specifying the breach and requiring it to be remedied; or (ii) the other makes any composition with any of its creditors or a receiver or an administrator is appointed to any of its assets or a resolution is passed or order made for the voluntary or compulsory winding up of the other, or any similar act is taken or event occurs under the law of incorporation of that other party. 17.4 Termination of this Agreement by either party in accordance with this clause shall be without prejudice to the rights and obligations of the parties including the right to take action in respect of the circumstances giving rise to termination. 17.5 This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all previous discussions or correspondence in relation to its subject matter. 17.6 This Agreement is not one of agency, partnership or joint venture and either party shall not hold itself out to third parties as agent and shall not enter into any contract, agreement or commitment or incur any obligation which may bind or otherwise affect either party other than those contemplated by this present Agreement. 17.7 The terms of this Agreement may only be amended in writing signed by both parties. 17.8 Mittane confirms that for the duration of this Agreement KTK will not be subject to or bound by any contract or understanding precluding Mittane from fulfilling this Agreement. 17.9 The parties agree to keep the terms of this Agreement confidential at all times except in the case of disclosure to their respective professional advisors or as required by law. 17.10 This Agreement is personal to the parties and neither party may assign or transfer any part of it without the prior written consent of the other party. Kindly confirm your agreement to the above terms and conditions by signing where indicated below. Yours faithfully ________________________ For and on behalf of MITTANE LIMITED MEMORANDUM OF AGREEMENT We hereby agree to the above terms and conditions which we confirm constitute a legally binding agreement between us. this day of 2003. _______________________ For and on behalf of LEADING EDGE EVENTS SCHEDULE A THE 'CONCERTS' SCHEDULE DATE VENUE Saturday 5th February 2005 Botannical (sic) Gardens, Sydney Optional Concert: Sunday 6th February 2005 Botannical (sic) Gardens, Sydney Saturday 12th February 2005 Werribee Park, Melbourne Optional Concert: Sunday 13th February 2005 Werribee Park, Melbourne 80 Schedule B was the "Contract Rider" for the provision of Dame Kiri's services. It included fine detail in relation to Dame Kiri's requirements in relation to rehearsals, the pitch to which the orchestra should tune for concerts, the direction from which Dame Kiri would approach stage position, dressing room facilities, publicity, transport and hotels. The "Musical Programme" section of the Rider recorded that Mittane would have the final decision on the programme to be performed and would "endeavour to provide the final programme no later than four weeks before the engagement". There were also clauses dealing with Dame Kiri's "special requirements" which descended into even finer detail. Schedule C set out "Minimum requirements" for the Strings and Rhythm sections for the Orchestra Line Up. Schedule D merely recorded the words "John Farnham Band Line-up". Although clause 8.2 of the Mittane Letter referred to the budget in Schedule E, it was not attached. 81 On 17 December 2003 Mr Gleeson wrote to Mr Grace informing him of his visit to the Domain and advising that it was "beautiful and quite large". He advised Mr Grace that the venue was used every summer for the Sydney Festival and that Mr Williams had negotiated for the stage and infrastructure to be left up for the Concerts in February. 82 In the meantime Ms Newbury was preparing the promotional material for the sponsors' launch that was to occur in early 2004. The material included a champagne flute with Dame Kiri's and Mr Farnham's names frosted onto it in an attractive box, on which their names as well as the words "Two Great Voices" were printed. On 17 December 2003, Ms Newbury wrote by email to Mr Williams enclosing a production schedule for printing requirements. That email included the following: As you can see no way can we have a signoff if we are waiting on John and Kiri to approve. Mittane contract says they have approval on everything before going to print. 83 Mr Williams' response that afternoon was as follows: Although they have to sign off the only things they can object to would be photographic image and as they have provided these from stuff used in the past their [ sic ] will not be a problem. Just to be on the safe side as we receive things from the graphic designers send them over by email with a turnaround of 72hours and if permission not received by 72 hrs assumption is that everything is ok. This is what Ive done in the past and is acceptable. 84 The plaintiff subsequently gave instructions to the designers to commence work on the brochures for the promotion of the Concerts. 85 On 19 December 2003 Ms Newbury forwarded to Mr Grace and Talentworks what she referred to as the "conceptual visuals and 'invitation to attend launch' letter for the Dame Kiri John Farnham events". Ms Newbury's email included the following: Explanation of visuals as follows: 1. Logo Only – This is the event logo that we would like to use for everything e.g. letterhead, posters, invitations, sponsor boxes, etc. The logo represents the two artists names, the designers have created the '&' to look a little like a treble clef, and the artists are joined together with the Southern Cross in the logo. 2. Box1 – This is what we would like to send to sponsors. Managing directors from the top 100 companies in Australia would receive this box on their desk. This will invite them to the launches in March and include sponsorship package information inside. Black box would have on the top the embossed logo. A printed sleeve would slip over the box which would have John & Kiri's visuals and as you can see letters F and T representing their surname. It will also feature beautiful images from Werribee Park mansion e.g. columns, cornices, etc. Inside the box will be one engraved champagne glass with the John & Kiri logo. The placement of the logo on the champagne glass will also denote the fill line for champagne. 3. BoxWrap – Engraved Champagne glass sits inside the box on a die cut of a champagne glass. The champagne glass will be tied with a beautiful ribbon. As you can see the inside of the box will also have a ribbon which will direct the person to pull down on the ribbon. This will unfold and contain information about the sponsorship packages. Ribbons will match up vertically also. 4. Stationery – Letterheads, Labels for envelopes. Letterhead will have the black logo at the top. Address details at this stage are shown at the top, but we have asked this to be moved to the bottom so it does not infringe the logo on space. The two promoter companies logos will be very subtle in a softer grey down the bottom of the page. Stock will be champagne colour – not white. The feature of the letterhead is not only the logo but on the reverse of the sheet is a full page colour photographic shot of some of werribee's features – garden and courtyard (beautiful photography) 2 different shots will be printed for letterhead reverse. Address labels as you will see have two separate photographs. These photos are some of the features of Werribee mansion. The address label will wrap around the envelope and the logo will appear on the back of the label at the back of the envelope. These labels will go through a printer so that the address label can be printed or typed. 5. Additional image BoxWrap 2 – This is identical to above, except we are showing Dame Kiri's image. The box will have both images, one site John Farnham and the other Dame Kiri, with the other two sides showing images of Werribee gardens and features. As you can see, the look is very up market. This is the message we are giving to the potential sponsors. A very special event that they cant not be involved in. I have also attached a letter of invitation from John and Kiri inviting these high profile business people to attend the launches. We need John and Kiri's signatures to be emailed through to us for this letter please. This letter will be on the event logo letterhead as above. As you can see we have a tag line on it, but we are working on the wording for this tag line, or we may not even need one. A separate printed invitation will also be included for the launches (we have not started the design on this as yet). Other design material we are working on is pull up event banners with the same design feel. As soon as we have some visual, I will email this through to you both. There are also sponsor packages for companies who do not receive the box. This will all have the same design feel. We are currently working on the wording for the sponsorship document. As the stationery, boxes and sponsorship information will all need to be printed over the Christmas break to make our deadlines for launch invitations, we look forward to your approval urgently. 86 On the same day Ms Newbury forwarded to Mr Grace and Mr Wheatley an email identifying the approximate position and size of the logo to be frosted onto the champagne glass. Ms Newbury also advised that the size of the logo was 6cm wide and 2.6cm high. 87 On 19 December 2003 Mr Grace requested that the plaintiff send all the "visuals" that had been attached to Ms Newbury's emails again, because the attachments were "only text files". On 21 December 2003 Megan Smith of the plaintiff forwarded those attachments to Mr Grace. On 22 December 2003 Ms Newbury sent to Mr Grace and Mr Wheatley a copy of the sponsorship package introduction for their approval. That document referred to the concert in the Domain on 5 February 2005 and the concerts at Werribee Park Mansion on 12 and 13 February 2005 and included the following: Two of the greatest singers from the opposite sides of International show business, will join together for three 'never before seen' concerts. These two giants of the entertainment industry are delighted to be able to show their amazing versatility and range by performing their favourite hits and 'crossing over' to each other's domain! These ground-breaking concerts will be a once in a life-time experience. Prior to the concerts, your corporate guests can indulge in the finest cuisine complemented by award winning wines. In Sydney, your guests will enjoy the open spaces of a truly magnificent park 'the people's Domain. In Melbourne, guests will enjoy the rich surroundings plush with antiques, chandeliers and fine art, and the feel of stepping back into time. 88 The document described the venues in more detail and then invited the recipient to join "with other discerning corporations" to make a selection from various sponsorship packages. There was also reference to the backgrounds of Dame Kiri and Mr Farnham and a description of "Sponsorship Opportunities". There was also a draft invitation to the launch of the Concerts to be signed by Dame Kiri and Mr Farnham. 89 On 22 December 2003 Ms Newbury wrote by email to Mr Grace and to Mr Wheatley advising that the plaintiff was giving consideration to using song titles as the names for sponsorship packages and requested assistance in coming up with suitable titles for Dame Kiri. 90 By this stage Ms Newbury had consulted with the plaintiff's solicitor in relation to the Mittane Letter that was forwarded by Mr Grace on 16 December 2003. On 22 December 2003, the plaintiff's solicitor forwarded to Ms Newbury the "Agreement amended in accordance with" their discussions. The amendments: introduced Talentworks as a joint contracting party with the plaintiff with the consequential amendment of the word "Promoter" to "Promoters" throughout the Letter; changed "Victoria State Opera Orchestra" to "Orchestra Victoria" in clause 1.2(b); deleted the reference to the "Optional Concert for Melbourne" in clauses 5 and 7; deleted the requirement for the irrevocable letter of credit in clauses 6 and 7; deleted clause 9.5 which provided for the payment of the Performance Fee "in any circumstances" other than those referred to in the clause; deleted clause 10(ii) which required the Promoters to pay for Mr Gleeson's return business class airfare from Auckland to Melbourne; made numerous amendments to clause 11 in relation to recordings; removed Mittane's right to approve sponsors in clause 12 and introduced the Promoters' agreement that the proposed sponsors would "be of a quality suitable to the event"; and introduced a requirement into clause 17.2 that Dame Kiri "confirms the foregoing by her signature to this agreement". The amendments to Schedule A deleted the reference to the Botanical Gardens and inserted The Domain. The clause dealing with the Musical Programme in Schedule B was amended to give Mr Farnham a joint entitlement with Mittane to make the final decision on the programme to be performed. 91 On 22 December 2003 Ms Newbury forwarded a copy of these amendments to Mr Wheatley and suggested that if it was "all OK", a similar contract could perhaps be used for Mr Farnham. 92 On 23 December 2003 Josephine Ridge of the Sydney Festival forwarded indicative costings to Ms Newbury in relation to the Domain for 5 and 6 February 2005, and confirmed that the Domain could "be made available" to the plaintiff for the Dame Kiri and John Farnham concerts on those dates. Ms Ridge included draft budgets and noted that some of the costs were estimates only and may vary as "details lock into place". January to June 2004 93 On 1 January 2004 Mr Grace wrote to Mr Gleeson asking whether he had discussed with Dame Kiri a fee for his services in connection with the Concerts and suggested that if he had not, he should propose a fee to him. On the same day, Mr Gleeson responded by email, advising that the level of fee would depend upon what Mr Grace wanted him to do. He referred, for example, to pre-concert site inspections and meetings with Mr Williams to review organisation, hotels etc; travelling with Dame Kiri on the tour to take care of usual logistical/media and technical matters; being available for consultation at any time; and reviewing merchandising elements. Mr Gleeson advised that his airfares, accommodation and meals appeared to be covered under the Mittane Letter sent to Mr Williams, and asked Mr Grace whether a fee of NZ$30,000 was in line with Mr Grace's thinking. He suggested that they should discuss this when Mr Grace had the chance. 94 Mr Williams gave evidence that the following telephone conversation with Mr Grace occurred in early January 2004: Williams: Nick, Eileen has been to our solicitor about the Mittane contract. What is this irrevocable letter of credit? Are you seriously asking me to agree to pay you all this money upfront before even a note is sung? Grace: Oh Frank don't worry. It is only the first draft. No one signs the first draft. You know that. By the time we get to the signing everything will be in place. 95 Mr Grace wrote by email to Mr Gleeson on 6 January 2004, advising that he had spoken to Mr Williams that day and that he was to send him his comments on the Mittane Letter in the week commencing 19 January 2004 when Mr Wheatley was back from his holidays. Mr Grace advised Mr Gleeson that the contract would change because Mr Williams was "committing" to three concerts. 96 On 6 January 2004 Mr Grace forwarded the following email to Mr Williams: [G]ood to talk to you this morning! With regard to press conferences in Australia: Kiri cannot do 3/4/5 March due to her 60th birthday on 6 March which she is celebrating with many guests in the Bay of Islands. At the moment she is reserved on a flight back to UK on 8 March – I have to get her back to London for professional commitments as soon as possible so the only days that would work are 8/9/10 March (leaving Auckland on 8th, with press conferences on the mornings of 9th and 10th) I hope this can work for John – please let me know. It would also be great if we could arrange for Kiri and John to meet while they are both in Auckland end of February (if you could also make it that would even be better!). … My guess is morning of Feb 26th may work but perhaps you could advise me of John's schedule and we could try to find a convenient time for both. I look forward to receiving your comments to the draft agreement w/c 19 January and finalising by the end of the week. 97 Mr Grace denied that the conversation referred to in paragraph 94 above occurred in the terms as claimed by Mr Williams. Having regard to the terms of Mr Grace's email of 6 January 2004 and also his later email of 10 February 2004 referred to below, it is difficult to accept that a conversation in these terms did occur. The note in the email of 10 February 2004 suggests that was the first time that Mr Grace had responded to any enquiry in relation to the irrevocable letter of credit. 98 On 11 January 2004 Mr Gleeson received an email from a Mr Bouffler in which he confirmed that he would be "delighted" to act as Mitani's accountant in Australia for the "upcoming Tour" with John Farnham. Mr Bouffler advised that the services would be similar to those provided on Dame Kiri's previous wineries tours with Mr Bohm. On receipt of that email Mr Gleeson forwarded it to Mr Grace. 99 On 12 January 2004 Ms Newbury forwarded a revised budget for the "Dame Kiri and John Farnham events" to Mr Grace and Mr Wheatley. This budget suggested a profit for three concerts of $3,395,610. On 14 January 2004, Ms Newbury wrote to Mr Grace and Mr Wheatley by email enclosing an image of Dame Kiri and Mr Farnham "for the sponsorship satchels for approval". That email advised, "If we do not hear back within 48 hours, we will need to go ahead and approve so that we can make our printing deadline". 100 On 15 January 2004 Mr Grace responded to Ms Newbury's email of 14 January 2004 in the following terms: I'm afraid I cannot get approval from Kiri within 48 hours. I know she won't be particularly happy with this image of her (its rather unflattering), but given that we don't have any other performance images to give you, I would like to suggest that you use the very similar shot of Kiri which you have used on the champagne box material. This is a more flattering facial expression, and we could approve it. With regard to the spelling of Kiri's name, I note in previous material that there have been some errors, so I would be grateful if you could ensure that all future spelling is as follows: Kiri Te Kanawa (Capital T for Te and a space between Te and Kanawa) 101 On 15 January 2004 Ms Newbury sent an email to Mr Wheatley seeking a response as to Mr Farnham's availability to meet with Dame Kiri in New Zealand. That email included the following: Dame Kiri's Manager is waiting on the revised contract from us. Can you please look at this and advise if you are not happy with anything so I can send it to Nick. 102 On 16 January 2004 Ms Newbury wrote by email to Mr Grace as follows: Thank you for your prompt response to my email. As per your request and approval, we will use the original image from the champagne box material sent over to you. We did pick up the mistake in the spelling Kiris name and have made sure that this has been corrected now. Thank you. 103 On 20 January 2004 Mr Grace wrote to Ms Newbury thanking her for the revised budget and advising her that he was "much happier" with the expenditure summaries. He then made comments on various aspects of the budget including: [O]rchestra calls based on only two rehearsals. Kiri normally has three. This may be ok if John uses his band more than using the orchestra – don't know about that? Hotels: I would hope you could get a hotel deal? Costs are around $170,000! Are the rooms really as expensive as the budget suggests? I went on the internet and the Hyatt on Collins, for example, ranged from $193 for a delux to $262 for a grand club. For your reference, please note that Kiri's hotel must have a room which have windows that can open and where the airconditioning can be switched off! … Average ticket price is $165 – I would like to see a breakdown on prices please 104 On 21 January 2004 Ms Newbury responded to Mr Grace's email in the following terms: We will have a look at the budget over the next couple of days and address your queries. However, I am sure some of the figures are not quite correct as I did not alter exactly the figures that related now to the new 14,000 capacity in Melbourne. I will however do this so we can have it as exact as possible. Our sponsor catering numbers have also changed slightly. Program sales will also change as I have based this on a capacity of 14,000 and a percentage of these people purchasing programs (previously 14,500). Hotel accommodation – we will definitely be doing a deal. Thanks for the reminder of Kiris hotel – we had noted this requirement. Ticket prices are: A Reserve $185 (all sponsors and corporate table holders are allocated these tickets) B Reserve $165 C Reserve $135 We have a better idea of seating breakdown now and will be able to do this costing more exact rather than basing it on the average ticket price. We will have a look at all queries and get back to you asap. 105 Ms Newbury sent another email to Mr Grace on 21 January 2004, advising that she was waiting on Dame Kiri's signature to be sent to her electronically. Ms Newbury advised: "This is for the launch invitation letter which will be signed by both Kiri and John. Can you please advise status on this". Mr Grace responded by facsimile in the following terms: SIGNATURE I'm afraid that we don't have a scanner and are therefore unable to mail you Kiri's signature, a copy of which is enclosed. I am happy to post this to you; please advise. Please feel free to touch up the signature to make it more readable/recognisable. PROOFS Please could I remind you that we need to see final artwork before it goes to print; final artwork should be given with at least 48 hours notice. Please also note that any new artwork needs 4-5 days to get approval. 106 On 22 January 2004 Megan Smith sent an email to Mr Grace confirming that the launch of the "Dame Kiri/John Farnham Concert" was to be held in Melbourne on Tuesday 9 March 2004. She also confirmed that Mr Farnham was able to meet with Dame Kiri on Sunday 29 February 2004 between 12:30pm and 1:30pm at the Auckland Airport Hotel. She thanked Mr Grace for faxing through Dame Kiri's signature and asked him to note that the plaintiff would be sending some artwork through in the next couple of days for him to look at. On 22 January 2004, Megan Smith forwarded to Mr Grace the artwork for the sponsorship folder/satchel. 107 On 23 January 2004 Mr Grace wrote by email to Ms Smith requesting advice as to whether the launch was only in Melbourne and how much of Dame Kiri's time would be needed. Mr Grace advised that he was going to look into the possibility of changing Dame Kiri's flights, and referred to the fact that Dame Kiri had a very inflexible deal with Singapore Airlines. Mr Grace also advised that he would inform Mr Gleeson of the meeting on 29 February 2004 in Auckland and that he would ask Mr Gleeson to confirm it with Dame Kiri directly. On 24 January 2004, Mr Grace sent the following email to Ms Smith: Thanks for sending the artwork. This seems fine to us. 108 On 24 January 2004 Mr Grace wrote to Paul Gleeson by email in the following terms: When you discuss the possibility of the John Farnham meeting with Kiri, please don't mention the proposed launch in Melbourne on 9th March. This still needs to be thrashed out with Leading Edge, and I'll have to speak to Kiri about it myself next week. 109 On 27 January 2004 Mr Grace sent an email to Ms Smith requesting that she urgently advise of the details of the launch in Melbourne because it was not possible to look into changing Dame Kiri's ticket without more information. 110 On 27 January 2004 Mr Gleeson wrote by email to Mr Grace advising that he had spoken with Dame Kiri about the meeting on 29 February 2004 and that "she accepts that a meeting is a good idea". Mr Gleeson advised Mr Grace that no mention had been made of the 9 March 2004 announcement and that Dame Kiri had advised him that she was leaving New Zealand on 8 March 2004. On 28 January 2004, Ms Newbury advised Mr Grace of the detail of the launch at Werribee Park on 9 March 2004 between 10:00am and 11:30am. 111 On 29 January 2004 Ms Smith wrote to Mr Grace by email in the following terms: Eileen has asked me to send through to you the Dame Kiri contract. You will see that we have attached two copies. One tracks our changes in red and the other copy has the changes already made. Not sure which is the easiest for you to look at. Please note that this contract will be the same for John Farnham with changes to the rider etc. We apologise for the delay in getting the budget back to you. We are working on it at the moment and will forward it to you early next week. 112 In late January 2004 Mr Williams and Mr Grace had a telephone conversation in relation to Dame Kiri's air ticket. Mr Williams claimed it included the following: Grace: Kiri has an old ticket with Singapore Airlines which we are trying to get extended so she can use it to come to Melbourne for the launch. If they won't do it we will have to issue a new ticket from the project. Williams: See what you can do with Singapore Airlines, but if you can't we'll get another one. Grace: Frank, I think it is important for you to come to New Zealand at the end of February to catch up with Kiri. You can renew your friendship and we can put the final touch to the written contract. Can you see if you can get Farnham and Wheatley to be there too, so that they can meet to discuss things prior to the launch? 113 On 30 January 2004 Mr Grace wrote to Ms Newbury in the following terms: As discussed with Frank, Kiri's current return flight from Auckland to London is held on Singapore Airlines, … Kiri's ticket was a restricted ticket, due to a competitive price, and the return flight was limited to a 12 month period. We had already persuaded Singapore Airlines to extend the return beyond this limit, which they reluctantly did. However, they are adamant that no further changes can be made to it, and no refund would be available. If Kiri were to fly back to London via Melbourne, this would therefore incur the cost of a new ticket, which I estimate to be approximately GB₤5,300. I am sorry that this is the situation; ordinarily we would have flexibility in the flights and there would be no problem. Please could you advise on how you would like to proceed? 114 On 3 February 2004 Mr Grace wrote to Mr Williams in the following terms: We went back to Singapore Airlines again, as requested. We had already asked if there was the option of paying a certain amount to 'upgrade' the old ticket, and again they responded that this was not possible. They regard the old ticket as having no value to them, and no monetary value can be put towards another ticket. I quite agree that there should be a compromise of sorts but SA do not want to help, and I am extremely disappointed that they won't help. Of course, I am happy for you to go directly to SA, if you have a contact there, to see if you can improve the situation. 115 On 10 February 2004 Mr Grace sent an email to Ms Newbury with a copy to Mr Williams, responding to the amendments to the Mittane Letter that the plaintiff had proposed. That email included the following: 6. Please note that an irrevocable letter of credit will be required, as this is Kiri's usual method of guarantee when working with promoters, and which was accepted for her last Australia tour. (Frank, you should be aware that Mittane Ltd will insist on this.) … 9.5 This clause should remain as it was, with the only correction being at the end of the sentence ".. other than the cancellation of the Concerts either due to clause 14 or due to the default of Mittane". … 12. Again, we do not agree to your suggested amendments. It is a standard clause which must remain. … 17.2 Please delete final new sentence, as Kiri is not allowed to sign agreements. 116 On 10 February 2004 Mr Grace sent an email to Mr Williams advising that he thought they should have a reasonably clear idea of what Dame Kiri and Mr Farnham were going to be singing before they got to what he referred to as the "press conference in Melbourne". He suggested that the meeting on 29 February 2004 in Auckland would be a good opportunity to discuss these matters. Mr Grace advised that he and Julian Reynolds would both be at the meeting and suggested that it would be very useful if Mr Williams could give him a list of songs that Mr Farnham might be considering as solos and duets. He also requested another video and DVD of Mr Farnham's performances in "The Main Event" with Olivia Newton John and "The Last Time". 117 In an email dated 11 February 2004, Mr Williams asked Mr Grace to identify the countries in which Dame Kiri had strong marketing for the purposes of assisting the plaintiff in negotiations for a "very big sponsorship". Mr Grace responded on 12 February 2004, advising that the strongest territories over the last ten years had been North America, Japan, United Kingdom, Spain, Denmark/Sweden/Norway, South East Asia and New Zealand. 118 On 12 February 2004 Ms Newbury had a further meeting with the plaintiff's solicitor in relation to Mr Grace's response to the plaintiff's suggested amendments to the Mittane Letter. The solicitor sent a further draft to Ms Newbury by email of 12 February 2004 with amendments that reflected some of the changes that Mr Grace had requested, however that draft did not include the reinsertion of the requirement for the irrevocable letters of credit or the removal of the requirement for Dame Kiri to sign the agreement as requested by Mr Grace. 119 On 12 February 2004 Mr Wheatley advised Mr Williams that Mr Farnham would obviously be singing "all his hits" but that he had "absolutely no idea" on the duets and would not have an idea until he met with Dame Kiri. 120 Dame Kiri gave evidence that in early February 2004 she made "numerous" telephone calls to Mr Grace's office and mobile phone and left messages for him requesting that he return her calls. Mr Grace did not do so, and on 13 February 2004 Dame Kiri sent a fax to Mr Grace in the following terms: Regarding the Melbourne press conference. It seems that it is going ahead. Is this so?? As you know I do think that we do not have a proper programme to "hook on to"! Don has had some involvement with the air tickets but it seems that Kevin is not included in any of the arrangements. Am I to do this all on my own?? I would very much like you to clarify all of this as I can see it all getting into an embarrasing situation and I will not be able to get out of it when I see clearly that it is not good enough yet. Look forward to your reply. 121 On 13 February 2004 Mr Grace responded as follows: Thanks for your fax. Hope all is well! I haven't called you this week as unfortunately I've not been too well and lost my voice. I'm still a bit shaky but work carries on! For your reassurance, I never assumed that you would be flying to Melbourne without Kevin. The promoters are arranging this ticket, and have confirmed he is on the same flight (seats 3K & J). The only outstanding thing at the moment is that Kevin is currently waitlisted on the Melbourne/London routing, which Donn hopefully will resolve with Singapore Airlines. I have asked Frank to send you, via Paul, the John Farnham DVD plus the video showing duets with Olivia Newton John, for your reference. And Frank has agreed to send me an idea of John's proposed solos and duets, for discussion. I look forward to discussing this with you and Julian in more detail before our meeting with John on the 29th. 122 On 14 February 2004 Mr Grace sent an email to Mr Williams asking him whether he would be going to New Zealand for the meeting on 29 February 2004 between Dame Kiri and Mr Farnham. On the same day Mr Grace sent a further email to Mr Williams in the following terms: [H]ope all is well – I've just been speaking to Kiri in NZ (who sends her best wishes!) and she was also asking me if you would be in Auckland for the meeting on 29th. Frank – personally, I think it's essential that you are at this meeting. Kiri's naturally upset that her (usually flexible) non-flexible flight is proving to be expensive to stop-over in Melbourne and wanted me to let you know that she is now going to be coming back to NZ mid-May (ticket not yet booked) for approx. 2 weeks and would you prefer to rearrange the press conference for May instead of March? I advised her that I would of course let you know but, from your advice, it was necessary to launch in March and it's too late to change this – and I am assuming that is correct? Please, please can you get some idea from John as to his thoughts on songs for the concert as soon as possible – I really need to get this to Kiri as she has some time to think about it before they meet. 123 On the same day Mr Williams responded to Mr Grace's email advising that he would be attending the meeting in New Zealand with his business partner, Ms Newbury. That email continued: The invitations have already been sent for the launch and all Kiri's flights booked. I think it would also be to everybodys advantage if you and I had a meeting prior to the general meeting just to iron out the minor points of the contract. If this can't be done we should talk by telephone. Give Kiri my best Im looking forward to catching up. 124 On 15 February 2004 Ms Newbury sent an email to Mr Grace in the following terms: Just a quick note to clarify that the launch on the 9th March is not a press launch it is a launch to prospective sponsors and corporate hospitality companies to announce the events and attract sponsorship. No media is invited. It was felt that it would be better to announce to the media later in the year, just prior to tickets going on sale to the public in about September/October. I have asked Talentworks to forward copies of dvd's to you urgently last week and at this stage, Glenn has advised that a discussion between John and Kiri would be required to decide about possible duets. This will be discussed at the meeting on 29th February. Hope this clarifies for you. Can you let me know if you do not receive the dvd's in the next couple of days. 125 On 16 February 2004 Mr Grace wrote to Mr Williams advising that he was "delighted" that he could make it to Auckland, and that he would ask Mr Gleeson to liaise with Mr Williams and Ms Newbury regarding two tickets to Dame Kiri's Gala Concert. Mr Grace suggested a meeting at 5pm on Friday 27 February 2004 prior to the Gala Concert rehearsal. Mr Grace responded to Ms Newbury's email of 15 February 2004 in the following terms: I wonder if you could send me some more information on how you see the 9th March working, ie what is the format, how many people do you envisage being there, will Kiri need to address a room of people or do one-to-one sessions, etc? If you have a draft schedule, it would be good to see it. … You say there will be no media, but are you planning a photocall of some kind, to take advantage of John and Kiri being together? I'm sorry for all the questions, but I would find it helpful to be able to advise Kiri on what to expect. 126 On 16 February 2004 Mr Gleeson advised Mr Grace that Dame Kiri would release two seats for Mr Williams to the Gala Concert if Mr Williams made a donation to Dame Kiri's Foundation. Mr Gleeson also advised that Dame Kiri wanted to be back on the road to the Bay of Islands no later than 1:30pm on 29 February 2004, and would therefore like the meeting with Mr Farnham to be at noon or earlier. Mr Gleeson also advised that he understood that it would depend on Mr Farnham's flight from Napier. 127 On 16 February 2004 Mr Grace advised Mr Williams by email that he was sure that they could find time to meet on Friday 27 or Saturday 28 February 2004 in Auckland. Mr Grace suggested that if Mr Williams felt that there were only a few minor points of the contract to discuss then he would be happy to wait until they met to discuss those points. Mr Gleeson advised Mr Williams on 18 February 2004 that he was trying to co-ordinate Dame Kiri's schedule and requested a meeting on Sunday 29 February 2004 at a venue close to the airport so that Dame Kiri could be "on her way north" by 1:30pm. Mr Williams reference to the matters for discussion as "minor" was hardly an appropriate description to use in relation to the irrevocable letter of credit. 128 On 19 February 2004, Mr Gleeson sent an email to Mr Grace in the following terms: Just an update on Feb 29. As agreed Kiri said she'd meet with John so long as she could be on the road north by 1:15. So that was why the meeting was scheduled for noon. Yesterday Frank's office called to say that they'd just found out that John is on a charter flight from Napier that lands at 1:30pm so the meeting would have to be 2-3pm. He's on an international flight around 3:30 back to Aust. This did not go down well with Kiri at all who has house guests from overseas etc etc. I called Frank's office and suggested that Kiri could change her return travel so long as they provided a helicopter – which they agreed to do (he's spending a lot of money on this project already). I've put them in touch with Kiri's favoured pilot. Based on this change of plan I suggested to Kiri that it would now be a good idea to accept the Malvina Major Foundation's invitation to meet their trustees during a coffee break in their planned meeting on Feb 29 – Kiri readily agreed so Kiri, Cath Tizard and I (plus you?) plan to meet with them at 11.30 and then go direct to the Farnham meeting at the airport (I presume you want me at the meeting?). For your ears only – Kiri is still making negative sounds about the concerts with Farnham and according to an email I received today from Max Cryer has been 'having Deep and Meaningful talks with Kiri about Johnny Farnham – who I gather might be coming for a meeting on 29th which she would like to me to go to as silent observer'. That's it for now. 129 Dame Kiri described Mr Cryer in evidence as someone with "perfect pitch", with whom she was consulting in an effort to work out the pitch of Mr Farnham's voice. Mr Cryer's advice was that Mr Farnham's seemed to be a "tenor", but that one would have to be in a room with him to be certain about that. 130 On 26 February 2004 Ms Newbury wrote to Mr Grace with further details in relation to the launch on 9 March 2004 at Werribee Mansion. The suggested format between 10am and 11:30am included Mr Williams introducing Dame Kiri and Mr Farnham and a session for them to answer questions from people "planted in the crowd". It was also noted that a photographer had been booked to take advantage of Dame Kiri and Mr Farnham being together on the day. Meetings in Auckland 131 There were two relevant meetings in Auckland. The first was attended Mr Williams, Ms Newbury, Mr Grace and Mr Gleeson. The second was attended by those same people and Dame Kiri and Mr Reynolds. Mr Grace and Mr Gleeson claimed that the first meeting took place on Friday 27 February 2004. Mr Williams and Ms Newbury claimed that the first meeting took place on the morning of 29 February 2004, before the meeting with Dame Kiri later that morning. It is agreed that the second meeting took place on 29 February 2004 at which it was planned that Dame Kiri would meet with Mr Farnham. 132 On Saturday 28 February 2004, Dame Kiri performed at the Gala Concert for the Foundation at the Aotea Centre in Auckland. On that night Mr Farnham, was performing at a concert in Napier, New Zealand. Mr Wheatley gave evidence that arrangements had been made for Mr Farnham and himself to fly from Napier to Auckland on the morning of 29 February 2004 by light aircraft. Mr Wheatley's evidence was that there were violent electrical storms in the area on 28 and 29 February 2004. Mr Wheatley telephoned Ms Newbury and informed her that there were dreadful storms in the area and that neither he nor Mr Farnham was prepared to fly. He advised that they could not attend the meeting as planned, and requested that Ms Newbury give everybody their apologies. Ms Newbury's evidence was consistent with that of Mr Wheatley in that she claimed that Mr Wheatley advised her that the weather was too bad and that neither he nor Mr Farnham would fly in it. The first meeting 133 Ms Newbury gave evidence that the first meeting took place on Sunday 29 February 2004, prior to the meeting with Dame Kiri later that day. Ms Newbury claimed that Mr Grace said that the musical directors could talk to each other and work on the repertoire and asked that Mr Williams send to him the details for Chong Lim. Ms Newbury claimed that Mr Grace suggested they should finalise the contract, and asked whether there were any other issues. Mr Newbury claimed that Mr Williams said: The letter of credit. We are still not happy about it. It is not fair, but if that is what is to happen, I'll do it. Farnham and Wheatley would still prefer Kiri to sign. 134 Ms Newbury claimed that she said that the lawyers had suggested that Dame Kiri sign a "side letter", to which she claimed Mr Grace agreed, saying "I can organise that. That should help them". 135 Mr Williams' recollection of the first meeting was that it occurred on Sunday 29 February 2004, prior to the meeting with Dame Kiri. Mr Williams had earlier telephoned Mr Grace to advise him that Mr Wheatley and Mr Farnham were "held up" on the South Island because of the weather, and could not make it to the meeting. Mr Williams suggested the meeting should go ahead in any event and claimed that the following conversation took place: Grace: We seem to be all OK. We are looking forward to it. The musical directors can start working on the program when they can get together. We should get the contract finalised. Are there any other issues. Williams: Although I am still not happy about the letter of credit and do not think it is fair, I will do it if that is what has to happen. Farnham's people are still unhappy that Kiri won't sign. Newbury: The lawyers have suggested a side letter. Grace: She never signs a contract. That is why she has Mittane there. They are one of the same. If it helps you, I'll get a side letter from Kiri. Is there anything else? Williams: Yes, the DVD. Would it be covered in this agreement or in a further agreement? Grace: We will have to have it in a further agreement. 136 Mr Grace claimed in his evidence that he met with Mr Gleeson, Mr Williams and Ms Newbury in the late afternoon on 27 February 2005 at the Carlton Hotel in Auckland. He recalled that the first topic of conversation at that meeting was the irrevocable letter of credit and claimed that the following conversation took place: Williams: I have to advise you Nick, there is absolutely no way I am going to agree to this. I don't think it is necessary and the other problem is that if I give KTK a letter of credit, I also have to give one to John Farnham and financially that's a huge problem. Grace: That is a problem Frank because as you know Mittane will insist on the letter of credit as this was requested and agreed for Kiri's last Australian engagements. Williams: Do you think Mittane would agree to 25% on signature and the remainder payable around September/October once public sales have been launched. Grace: Personally I don't think Mittane will accept this but as you have made it clear that you won't accept a letter of credit, I will of course discuss your proposal with Mittane. It's not something that can be resolved today because I don't have the ability to renegotiate this point on behalf of Mittane. Williams: Ok – let's leave the letter of credit unresolved for the moment and discuss the other outstanding issues to do with the contract. If Kiri isn't going to sign the contract would she sign an inducement letter instead? Grace: I will speak to Mittane – as you know they are not happy about Kiri signing anything to do with contracts. It's very rare for Kiri to sign an inducement letter and I don't think they will agree – but you've asked so I will find out. Can I assume that we all agree that we must finalise everything about the contract, including payment terms, before the launch? Williams: Agreed. 137 Mr Grace claimed that other issues regarding the contract were then discussed and Mr Williams then provided some sample artwork and sponsorship packages to him, and suggested that Mr Grace give them to Dame Kiri. Mr Grace suggested it would be better and more appropriate for Mr Williams to present them to Dame Kiri when they met on Sunday. He suggested that Mr Williams should talk Dame Kiri through the sample artwork and sponsorship packages and explain to her what was to happen at the launch in Melbourne. Mr Grace claimed that Mr Williams agreed to this. 138 Mr Gleeson's recollection of what occurred at the first meeting, which he fixed at the Carlton Hotel on 27 February 2004, was that when Mr Williams showed the artwork and promotional material he said that they would be given away as part of the sponsorship launch in Melbourne. Mr Gleeson claimed that Mr Grace said that he would show them to Dame Kiri but that Mr Williams claimed that he did not want that to happen because he wanted to "surprise" Dame Kiri on Sunday when they met. Mr Gleeson claimed that it was in mid-February that he became aware that the focus of the launch had changed to become a sponsorship launch as opposed to a press conference; however, he claimed he still thought it was a press conference just under a different name. 139 Mr Gleeson's recollection of the conversation at the first meeting in relation to the irrevocable letter of credit was as follows: Grace: The payment to Mittane under the contract has to be secured by an irrevocable letter of credit. Williams: We can't make it happen. There's no way. We've got to renegotiate that. Grace: I can't renegotiate that. That's all set down by Mittane. 140 Mr Gleeson's evidence was that he left the meeting after the discussion in relation to the irrevocable letter of credit and when he saw Mr Grace at the dress rehearsal for the gala concert that evening Mr Grace informed him that Mr Williams refused to provide the irrevocable letter of credit. The second meeting – 29 February 2004 141 Mr Grace's evidence was that the meeting that was scheduled for 29 February 2004 was supposed to take place at the Auckland airport with Mr Farnham, but that the venue was changed to the Carlton Hotel. Mr Grace claimed that he arrived at the meeting with Mr Reynolds and that he and Mr Reynolds engaged in "casual conversation" with Mr Williams and Ms Newbury for a short period of time. Mr Grace recalled that Dame Kiri and Mr Gleeson arrived together a short time later. 142 Mr Williams had taken with him to the meeting the advertising and marketing material, including the sponsorship package and the champagne flute. Mr Williams handed that material to Dame Kiri and he observed her to "go through it". Mr Williams also claimed that Dame Kiri said, "This is beautiful. First Class. But, then again, I wouldn't have expected anything less from you". Mr Williams claimed that he informed Dame Kiri that a great deal of time and effort had gone into producing the materials and he was glad that she liked them and that Dame Kiri then said: It is a pity that John Farnham couldn't be here. I wanted to discuss the program and exchange ideas with him, but if he can't even bother to be here I can only say that I am disappointed. 143 Mr Grace claimed that the following conversation occurred: Dame Kiri: I'm very disappointed that John hasn't turned up today. Can you give me an explanation? Williams: Extreme weather conditions mean that there are no flights out of Napier this morning and he simply can't make it. Dame Kiri: We needed to meet with John Farnham to start talking about the artistic programme and come up with some ideas. 144 Mr Williams gave evidence that the conversation digressed to a number of issues including Dame Kiri asking about the Domain. Mr Williams advised her that it was not as "classy" as Werribee Park, but that it was very good and central and that Mr Gleeson was happy with it. Mr Williams claimed that Dame Kiri said that she had happy memories of Werribee Park and that he informed her that he had "gone one better" in that they were now incorporating the Mansion as a special venue for "our sponsors" and that she could see the detail in the literature that he had just provided to her. Mr Williams also claimed that Dame Kiri said she was "glad that we didn't get that other orchestra" and that she still needed to discuss content with Mr Farnham. Dame Kiri suggested that Mr Williams should make sure that "our musical directors get together". Mr Williams said that they should "reschedule before the Melbourne launch", and that he was sure there would be time to get together either the night before or in the morning before that launch. Mr Williams claimed that as Dame Kiri left the meeting with Mr Gleeson, she said "I will see you in Melbourne. I am sorry they were not here". Mr Williams responded "Have a wonderful birthday. We will see you in Melbourne". 145 Mr Williams claimed that after Dame Kiri and Mr Gleeson left the meeting, he and Ms Newbury had a discussion with Mr Grace that included the following: Grace: She is pretty upset that Farnham and Wheatley were not here, but if their reasons are genuine I can understand it. Paul is with her though. She will be fine. Anyway, she seemed to love the launch material. Williams: The only thing I can think of that needs doing is to sign the contract. Grace: We will sign off in Melbourne when everybody is there. 146 Mr Grace admitted that he said that Dame Kiri was "really upset" and frustrated that the Farnham meeting had been "cancelled" and that he said: We still need to finalise the contract and I will, as promised, speak to Mittane about the letter of credit – although you should be aware that I don't believe they'll move on this point. We need to finalise this before Melbourne. 147 Mr Grace claimed that after he said these words Mr Williams said, "I'll wait to hear from you". 148 Prior to the meeting on 29 February 2004, Mr Gleeson informed Dame Kiri that Mr Farnham would not be attending the meeting. Dame Kiri attended two meetings that morning in relation to the other matters, the first at 9am and the second at 10am. Following those meetings, Mr Gleeson drove Dame Kiri to the meeting with Mr Williams, Ms Newbury, Mr Reynolds and Mr Grace. Dame Kiri gave evidence that when she attended this meeting she was totally exhausted from the previous evening's performance at the Gala Concert and the post concert functions. Dame Kiri claimed that at the commencement of the meeting Mr Williams said that Mr Farnham was not coming to the meeting because he was frightened of flying and the airport had closed, and that the conversation included the following: Dame Kiri: I am very disappointed that John Farnham has not even bothered to come. If John Farnham's not here, what can we do? Reynolds: I can talk to his musical director. Williams: I can organise for you to speak to him. Dame Kiri: What's the point of that? We're already here. Anyway, it's too late. There's no time. Williams: You can meet John before the launch. Dame Kiri: That is not ideal. We need time and we need Julian and Chong Lim as well. You promised to bring a suggested programme and I have received nothing. 149 Dame Kiri also gave evidence about the promotional material that Mr Williams gave her at this meeting. In her statement of 7 December 2006, Dame Kiri gave the following evidence (at paragraph 63): During the meeting, Frank Williams showed me a bag containing a box with a champagne flute inside. He opened the box and showed it to me. I might have commented that the box and glass looked nice. It was not explained to me at the meeting what the box was to be used for. At the Meeting I did not read any of the printed material that I now know to have been contained inside the box. I did not look at any of the printed material contained in the box until after these proceedings were commenced. Having now looked at the photographs of me contained in this printed material I can say that I would never have approved the use of those photographs because I never approve photographs of me for publicity purposes which depict me with my mouth open. I have also noticed that the photograph is not in focus and I would never have approved an unfocused photograph of me for any purpose. 150 Dame Kiri was cross-examined about her recollections of the conversation at the meeting. That cross-examination included the following (tr 331-333): Q. At the meeting I am suggesting to you this conversation took place at the time that you were given the boxed champagne flute that you said, "This is beautiful, first class but then again I wouldn't have expected anything less from you". You said that to Mr Williams? A. No. Q. Nothing like that? A. No. Q. Did you think it was beautiful? A. I said it was nice. Q. You said that to Mr Williams? A. Yes. Q. That's all, nice? A. Its nice. Q. Did he say, "A great deal of time and effort has gone into them, I am glad you like them"? A. I don't recall that. Q. Did you then say, "Its a pity that John Farnham couldn't be here"? A. I think I had been saying it before you are talking about. Q. "I wanted to discuss the program and exchange ideas with him"? A. That was before the box I would say. Q. Did you say that, "If he can't even bother to be here I can only say that I am disappointed"? A. Yes, that's I think before the box. Q. Did you have some discussions with Mr Williams about the venues? A. No. Q. Did you ask him, "What is the Domain like, the Sydney venue?"? A. No. Q. Did he say, "Its not as classy as Werribee Park but its very good its central, Paul's happy with it"? A. I don't recall. Q. Did you know whether Paul Gleeson had travelled and been impressed with the site at the Domain, travelled to see it? A. I wasn't really privy to that but I had heard subsequently that he had been there. Q. Did you say, "I've got happy memories of Werribee Park" to Mr Williams? A. No. Q. Did he say: "I've gone one better, they now incorporate the mansion as a special venue for our sponsors, you will see the detail in the literature I have given you"? A. I don't recall that. Q. You don't recall it? Had he said that would you have followed up his suggestion had a look at the literature? A. My concentration was on no John Farnham, at this point and the meeting was very short, all of this was insignificant. John Farnham was not there. Q. Did you discuss the choice of orchestra with Frank Williams? A. No. Q. Did you say to Mr Williams, "I still need to discuss content with John Farnham, make sure our musical directors get together"? A. That could have happened but it's been, it had been going through the whole of the thirty to forty minutes that we were there. Q. Did Mr Williams say: "Why don't we reschedule before the Melbourne launch, I am sure there will be time to get together either the night before or in the morning."? A. He could have said that. Q. You left the meeting with Paul Gleeson? A. I did. Q. And just as you were leaving did you say to Mr Williams, "I'll see you in Melbourne, I'm sorry they were not here"? A. No. Q. Did he say, "Have a wonderful birthday, we will see you in Melbourne"? A. I don't know if he said "have a wonderful birthday". Q. Did he say "we will see you in Melbourne"? A. No. Q. At that time as you were leaving the meeting you hadn't made any decision about not going to Melbourne, had you? A. No. Q. In fact it was left that you would be going to Melbourne and attending the event, whatever you like to call it? A. Well, yes. 151 Dame Kiri was earlier shown the boxed champagne flute in the witness box and agreed that she had seen it. She gave the following evidence (324-325): Q. Was that given to you by Mr Williams at your meeting on 29 February? A. Yes. Q. Did you open it? A. He opened it. Q. Yes? A. And pulled out the glass, like that (witness indicated), and I recall seeing this, the one invitation. There's an invitation, and that's it. … Q. At the time that was handed to you, did you become aware of the fact that it included an invitation to a sponsorship launch on 9 March at Werribee Park? A. No. I thought it was a very nice press package. Q. When you say that, you didn't read the invitation that was in the lid? A. No. Q. Did you take that away with you? A. I did. Q. To your house? A. In the Bay of Islands, yes. Q. Did you show it to some of your guests? A. I left it out and showed it, but never looked at it myself. Q. So, even when you were at the Bay of Islands, you didn't know that there had been a sponsorship launch organised for 9 March and that this was, in fact, an invitation to a prospective sponsor to attend at the launch? A. I did not look at it. 152 Mr Grace gave evidence that on the evening of 29 February 2004, Dame Kiri telephoned him and advised him that she had made up her mind not to go to the launch. When Mr Grace asked Dame Kiri why that was, she said that she was "disappointed" that Mr Farnham did not "make the effort to make it to the meeting"; and that she did not want to go to Melbourne and be asked what they would be singing, when there was no agreement between herself and Mr Farnham on a programme. Mr Grace advised Dame Kiri that he thought that this would be a "huge problem" for Mr Williams, and asked her whether she was saying that she wanted to cancel the Concerts. Dame Kiri advised Mr Grace that she was not saying that she wanted to cancel the Concerts, but that she wanted to postpone the launch to a later date when an artistic programme had been worked out. Mr Grace reiterated that such a postponement would put Mr Williams in a difficult position, and it could jeopardise the whole project because he did not think Mr Williams would be able to get the same sponsors back for a second time. Dame Kiri was not persuaded, and requested Mr Grace to ask Mr Williams to postpone the launch. 153 On 1 March 2004 Mr Gleeson sent the following email to Mr Grace: I spoke to Kiri as soon as I arrived last night. She told me (what she'd obviously told you) that she had changed her travel plans and would not be going to Melbourne – for all the reasons we have previously discussed. I told her I thought that was a mistake and what Frank had said about being unable to stop/postpone the launch. She said she knew she was 'in the s..t' with Frank but she had to follow her 'gut instinct' and that until she knew what sort of programme might be possible there was no point attending the launch. We agreed nothing could change her mind at this stage. I've had several conversations with Frank. Naturally he is not a happy chappy. He suggested that John should call Kiri personally. I told him that could be counter productive because Kiri could say the wrong thing to him which could really impede any future collaboration plans. I've also told Frank (following my discussions with Kiri last night – see comments below) that I don't believe anything would change her mind about missing the launch. I believe he will go ahead with it without Kiri and come up with some plausible excuse for her absence – we will need to monitor this. He is particularly unhappy that they gave Kiri a $9000 return ticket and the helicopter ride etc. Frank suggested I should fax a copy of his email to Kiri – my personal inclination is not to. 154 There was no reliance by the defendants on this hearsay reference that the plaintiff "gave" the ticket and helicopter ride to Dame Kiri for the purpose of suggesting that the plaintiff's services were by way of gift. I raised with Mr McGrath whether it was alleged it was a gift and his response was that it was "a matter of choice" (tr 297). 155 On 1 March 2004 Mr Grace sent an email to Mr Williams in the following terms: [H]aving spoken in length to Kiri today we are making the decision to ask you to postpone the launch day in Melbourne on Tuesday 9 March. We feel that it is absolutely vital to reschedule the meeting that should have taken place in Auckland yesterday between Kiri, John Farnham and their respective musical supervisors to discuss and agree on the artistic content of the concert prior to any launch. We do not want to be put in a situation where there may be possible conflicting views artistically with regard to the concert that Kiri and/or John may be unhappy with and until such time as the above meeting can be rescheduled we cannot agree to a launch. I would be most grateful if you could call me in Auckland today before I leave for London this evening. 156 On 1 March 2004 Mr Williams responded by the following email: Cancelling the launch is not an option. Many 100s of invitations have been sent including all the material that has been shown to you. All of the top companies from Australia have been invited. To cancel now would take away any credibility from the concert and do irrepairable damage to my company. I understand Kiris concerns but they can only be solved by hers and John's musical directors and imput from the two artists. Therefore I suggest that Julian speaks with Chong Lim and Kiri talks with John. Please bear in mind that it was Kiris insistance that she had to depart by 3pm on Sunday and that all arrangements were made to accommadate her schedule. It was unfortunate that John could not make it (he is still stranded in NZ) We have approximately one year to get this right but to cancel the launch now would be madness. If artistically the two parties cannot come to a mutually agreed programme that would be the time to withdraw. not now! The launch will go ahead as planned hopefully with Kiri participating. Chong Lim's [contact details provided]… 157 On 1 March 2004 Mr Williams sent an email to Mr Gleeson advising that he had made Mr Wheatley and Mr Farnham aware of "the situation with Kiri" and that they had suggested a dinner in Melbourne with Dame Kiri, Chong Lim and whoever Dame Kiri would like to accompany her in the private surroundings of Mr Wheatley's home. That email continued: If she is still of the same mind not to attend the launch after that meeting, then so be it. It is absolutely essential that you inform us at the earliest possible moment of Kiri's final decision relating to this matter so that we can minimize the damage this will have on the launch by one of the stars being absent. 158 On 1 March 2004 Mr Gleeson had a conversation with Mr Grace during which they decided that they had to try to change Dame Kiri's mind. On that same day, Mr Gleeson attended Dame Kiri's 60th birthday celebration at her Bay of Islands residence. 159 On 2 March 2004 Mr Gleeson had a conversation with Dame Kiri to the following effect: Gleeson: Is it possible that you will change your mind about going to Melbourne? Dame Kiri: I will not be going to Melbourne. There's no point in me going. There's no point announcing concerts if you can't talk about a programme. Gleeson: Will you give it one more consideration? Dame Kiri: No, I've changed my travel plans. Gleeson: I'll let Frank know. 160 On 3 March 2004 Mr Gleeson telephoned Mr Williams at which time he claimed the following conversation took place: Gleeson: She's not coming. She won't change her mind. Williams: What's gone wrong? Why isn't she coming? What have I done wrong? Gleeson: There's no programme. Williams: We can get one. Gleeson: Don't shoot the messenger. She's changed her travel plans. Williams: What about all the material? Gleeson: I don't know. She seemed happy with it. Nick and I are seeing if we can get it back on track. 161 Mr Williams' recollection of this conversation with Mr Gleeson was that he asked Mr Gleeson, "what's all this about?", to which Mr Gleeson responded, "I don't know Frank, nor does Nick. I am shocked. She hasn't given any explanation. She seemed fine at her birthday party. She was showing off the promotional material. I am sure that it will all blow over and everything will be back on track". In a conversation with Mr Grace at about the same time, Mr Williams claimed that Mr Grace informed him that he was "embarrassed" and that he did not have a reason why Dame Kiri would not "turn up". Mr Grace said that he could only assume that Dame Kiri felt that she had been "snubbed" by Messrs Farnham and Wheatley and that it "might take a little while for her to come around". 162 Mr Grace returned to London on 2 March 2004. On that day he had a lengthy conversation with Dame Kiri about Mr Williams' email to him of 1 March 2004. Dame Kiri, who was still in New Zealand at that time, informed Mr Grace that she still felt exactly as she did before Mr Grace had left New Zealand and advised him that she was not going to Melbourne. Mr Grace advised Dame Kiri that he did not agree with her, and that he did not think it was a good idea. However, he said that if that was her final decision, then obviously he would advise Mr Williams. 163 Dame Kiri gave evidence that a day or two after 29 February 2004, she had two telephone conversations with Mr Williams, one of which was in the following terms: Dame Kiri: I'm going to go back to London. I am not going to attend the press conference. Williams: There isn't going to be any press there. Dame Kiri: Then why am I going? Williams: I've got people booked. I've set it up like the concerts will be set up. Its not an option not to go. You can't pull out now. Dame Kiri: Why can't it wait until May when we're more prepared and we've got something to offer the press?. 164 Dame Kiri claimed that even at this time, she did not appreciate that the launch was a sponsorship launch. She claimed to be very surprised to learn subsequently that a launch to raise sponsorship money had been arranged. She said that in her entire career she has never attended a launch to raise sponsorship money for a concert and that she would never attend a sponsorship launch for any of her concerts. 165 At about this time, Dame Kiri claimed to have had a further conversation with Mr Williams, to the following effect: Dame Kiri: Frank, I am sorry but I am going straight back to London and I will not be attending the press conference. Chong Lim and Julian Reynolds can communicate with each other. We can reschedule the press conference when I am back in May. Nick will give you the details. Williams: Kiri, I am sorry that you have taken this decision. You have not really given me a satisfactory explanation. If it is, as you say, the artistic content, we have a year to sort it out. 166 Mr Williams' evidence in relation to this telephone call is mainly in agreement with that of Dame Kiri, except that Mr Williams claimed that he informed Dame Kiri that he would "make excuses for the cancellation due to family matters to try and keep all our reputations intact", to which he claimed Dame Kiri responded, "Do what you have to do". Dame Kiri denied that Mr Williams said these words, and gave the following evidence in cross-examination (tr 335-336): Q. Well, did you leave it to Leading Edge Events and Frank Williams to sort out the fall out from your decision not to go to Melbourne? A. Yes. Q. You regarded that as their problem? A. The size of it that I now know was a super problem by June. I didn't know the problem. When you are not told, how could you know the problem? Q. You didn't ask Nick Grace – he was still in New Zealand then, was he? A. I believe so, yes. Q. What type of problem is this going to cause if I decide to go straight back to London? A. I couldn't see it as a problem because the press conference can be changed at any time. … Q. Nick Grace in fact tried to talk you out of your decision not to go to Melbourne? A. Not seriously. Q. Did he attempt to? A. Not seriously enough that I felt it was urgent. Q. But he said his view was you should go to Melbourne? A. Possibly but it didn't seem serious because he wasn't coming. 167 This evidence is inconsistent with Dame Kiri speaking to Mr Williams when she had two agents, Mr Grace and Mr Gleeson on hand to make that call. That fact is some indication of her recognition of the extent of the problem she had caused by changing her mind about attending the launch. Her communications with Mr Gleeson as evidenced in his email to Mr Grace on 1 March 2004 also support a finding that Dame Kiri was very well aware of the extent of the problem that her absence from the launch would cause. 168 On 3 March 2004, Mr Gleeson wrote to Mr Grace advising that he had spoken with Mr Williams on two further occasions, and thought that he had "now accepted" that Dame Kiri would not be going to the launch. Mr Gleeson advised that Mr Williams was now worried about Mr Farnham, who was apparently not happy when he heard that Dame Kiri would not be at the launch. Mr Farnham's reaction was that if Dame Kiri was not going to be there, he would not be there either. That email included the following: What's bothering Frank now is that Kiri might do the same thing Sept/Oct. I have assured him that so long as she is confident after she gets together with the MDs and John then it 'should' be plain sailing. 169 On 9 March 2004 Mr Grace wrote to Mr Gleeson in the following terms: Frank called me today. He was in reasonably good spirits. He's not planning to reschedule the launch – he's had no negative feedback and is busy trying to sell corp. hospitality and find sponsorship. The next/first time he needs Kiri and John will be to launch public sales in August/September. I told him I was trying to clear Kiri's diary in April/May so she could meet John and Chong Lim (in Australia) to AGREE on a programme (Frank agreed he would fly Julian out for the meeting). 170 Dame Kiri returned to London on 9 March 2004 and made several telephone calls to Mr Grace during which she stated her reluctance to reconsider a launch date and also to proceed with the Concerts. Dame Kiri said that she was really upset about the way things were going and that she did not trust Mr Williams anymore. Dame Kiri gave no basis for this suggestion and I do not accept there was any such basis. Dame Kiri was clearly very annoyed that Mr Farnham had not "made the effort" to attend the meeting when she clearly made a very big effort to attend at a time when she had many other important matters with which to deal. She advised Mr Grace that she thought the best thing to do was to "pull out" and that she was sure of this and wanted Mr Grace to speak to Mr Grainger about it. She said that she would organise for Mr Grainger to call Mr Grace. 171 Dame Kiri gave evidence that on about 22 March 2004 she attended a meeting in London with Mr Grainger and her personal assistant, at which the following conversation took place. Dame Kiri: I still have concerns about these proposed concerts with John Farnham. I have not met John Farnham to agree a musical programme or establish a working relationship. I don't think there's been any meeting between the musical directors and I'm still concerned about John's performing style. Grainger: There are commercial concerns as well because Frank Williams has not given any financial security. A decision needs to be made whether to cease negotiations with Frank Williams. Dame Kiri: From my artistic point of view, I am content if the directors of Mittane decide to cease the negotiations. 172 Mr Grace received a subsequent telephone call from Mr Grainger who asked him to attend a meeting with him and Mr Green at Mittane's office. That meeting took place on 23 March 2004 during which either Mr Green or Mr Grainger advised Mr Grace that Dame Kiri's position was that she wanted the "negotiations to be terminated". Mr Grace was asked to draft something for Mittane to forward to Mr Williams. 173 On 26 March 2004, Mr Grace wrote by facsimile to Mr Green at Mittane, requesting him to send a fax to Mr Williams in the terms enclosed with his fax. That facsimile advised Mr Green: I feel this is the best way to deal with Frank, as hopefully he won't proceed. If in the unlikely event he does promise the finances, we will have to think again. Please let me know if you are in agreement, and obviously copy me on your fax and any reply you may receive. 174 The document enclosed with Mr Grace's fax was in the following terms: Re: Kiri Te Kanawa - 2005 As you are aware, as of 1st January 2004 we have been employing Dame Kiri Te Kanawa and are responsible for suppling her services. We met with Nick Grace earlier this week, and he updated us on the meeting which he held with you in Auckland on 27th February. We understand that you are not prepared to consider our request for an irrevocable bank letter of credit for the full performance fees payable within seven days of signature of the agreement. This was the guarantee supplied for Dame Kiri's services for her previous Australian engagements in 2003. Regrettably we are not prepared [to] accept any other form of payment. If this is not acceptable to you, we feel we must cease negotiations. 175 On 30 March, Mr Grace forwarded to Mr Green the "revised wording" for the letter to Mr Williams. That revised wording included the following: We met Nick Grace last week and he updated us on the meeting which he held with you in Auckland on 27th February. We should advise you that we have various major concerns with this proposed project. We understand that you are not prepared to consider our request for an irrevocable bank letter of credit for the full performance fees payable within seven days of signature of the agreement. This was the guarantee supplied for Dame Kiri's services for her previous Australian engagements in 2003. Regrettably we are not prepared to accept any other form of payment. We also understand that the meeting scheduled between Dame Kiri and John Farnham in Auckland on 28th February didn't take place, and consequently the launch plan for Melbourne on 9th March was cancelled. In view of the above, we have to inform you that we wish to cease negotiations and are no longer holding the availability for Dame Kiri's services. 176 On 30 March 2004, Mittane sent to Mr Williams a letter in those terms with an additional sentence at the conclusion of the second last paragraph, which read: Mittane Limited and related advisors, on behalf of our employee Dame Kiri Te Kanawa, wish to retain full artistic control of the event – evidence of which has not been forthcoming. 177 On 31 March 2004, Mr Williams wrote to Mittane in the following terms: Thank you for advising that as of 1st January 2004, you have been employing Dame Kiri Te Kanawa and are now responsible for supplying her services. However, it should be noted that negotiations commenced on 18th June, 2003 and many agreements were reached prior to your appointment. Further to your fax dated 30 March, 2004, it is important to clarify points made by you. Subsequent to your meeting with Nick Grace last week and your comments relating thereof, we answer that at no time did we state we are not prepared to consider your request for an Irrevocable Bank Letter of Credit, but suggested we would prefer a payment option of 25% on signing and balance to be paid in September/October which is much nearer to the date of the concerts. We are prepared to enter immediately into an Irrevocable Bank Letter of Credit if required. With reference to the meeting between Dame Kiri Te Kanawa and John Farnham on 29th February, 2003, regrettably John was unable to attend due to very bad weather and the risk involved in flying in this weather made it impossible for him to attend due to the departure time restraints imposed by Kiri. He then proposed another meeting on the 8th March prior to the Launch day, but due to Kiri's specific request that we postpone the launch to a later date, this did not proceed. However, Kiri did speak to all parties concerned and emphasized the need for the musical directors to liaise prior to her return in April/May 2004. Full artistic control by the artists has never been an issue and will not be an issue. Musical directors – Chong Lim on behalf of John Farnham and Julian Reynolds, on behalf of Dame Kiri have been in communication regarding the programme. This is therefore not an issue. We feel that before any major decision is made in relation to these concerts, you should be fully aware of all the facts, which are listed below: · Negotiations commenced on 18th June, 2003 for Kiri Te Kanawa concerts · Agreement reached and financial offer accepted by email on 8th July with Nick Grace Management. Offer accepted – a joint venture agreement between Leading Edge Events and Dame Kiri Te Kanawa, equally sharing net profits, with a guaranteed performance fee of $A200,000 per concert. · Orchestra sought and submitted for approval. 17th July, 2003, advised by Dame Kiri that she did not want the Philharmonic Orchestra and other options were sourced. Orchestra Victoria given approval by Kiri and her management. · Verbal discussions between Frank Williams, Leading Edge Events and Nick Grace Management re joint concerts with John Farnham and Dame Kiri – August 2003 · Advice from Nick Grace via email – very interested in possibility of Dame Kiri and John Farnham also doing a joint recording prior to concerts as well as the concerts in February 2005. – Advised letter of intent to be sent from Mitani – 22nd August, 2003 · Advised Nick Grace that John Farnham has agreed to concerts with guarantees of $A200,000 each concert – 24th September, 2003 · Draft budgets and John Farnham DVD's sent to Nick Grace – 3rd October 2003 · Some clarification comments re budget made by Nick Grace – otherwise all OK. 20th October, 2003 · Updated promotional material requested by Nick Grace – Sent via email to Nick on 22nd October, 2003 · Nick Grace advised we needed to go with photos we had for Kiri for promotional material as they did not any up to date photos and Kiri needed to do a new photo shoot. This will be done in time for the programme for the John Farnham/Dame Kiri concerts in February – Email 23rd October, 2003. · Nick Grace informed us that he had spoken to Kiri and she was happy to consider a second concert in Melbourne if demand for ticket sales was there. Kiri also invited John to take part in her Foundation Launch concert in New Zealand – Email date 7th November, 2003 · Venues sought and approved between all parties. Site inspection occurred by local Kiri Te Kanawa agent – Paul Gleeson on 12th December. · Agreements were put in place with the Sydney Festival to utilise existing stage and lighting facilities at the Sydney venue early December 2003. · Catering contractor appointed December, 2003 · Agreements with both The Domain and Werribee Park venues negotiated and signed. · Nick Grace emailed first draft of contract – 16th December, 2003 · Marketing and sales brochure concepts including visuals, photos and copy prepared and approved for sponsorship, media and general parties forwarded to Nick Grace Management on 19th December 2003 for approval. Approval for concepts received on 16th January, 2004. Copy for Invitation Letter to the Launch signed by both artists – approved and signatures received for insertion in letter on 16th January, 2004. · All final artwork approved 24th January, 2004 by Nick Grace Management on behalf of Kiri Te Kanawa · Event Bank account opened in January 2004 and $A200,000 deposited for initial launch and event expenses. · Additional Sales and administration staff employed January, 2004. · Television agreement obtained on 27th January 2004 · Invitation to Launch and Marketing and sales proposals couriered and mailed to 600 companies throughout Australia on 9th February, 2004. · Sponsor/Media Launch date postponed at the specific request of Dame Kiri Te Kanawa on 4th March, 2004. (Launch date 9th March, 2004) · Sales Force continuing to sign sponsorship agreements with corporate Australia (current) · Various concert suppliers contracted. · Venue hotel – Werribee Mansion Hotel – booked all rooms and deposits committed. You can see that at every step of the way we have been in constant touch with Dame Kiri Te Kanawa through Nick Grace Management and Paul Gleeson in New Zealand and have sought and received full approval in everything we have done. At all times, we have ensured that the artist's excellent reputation has been kept at the highest level and have done everything in our power to enhance their reputations. This has been borne out by the fact that to date we have spent over $386,000 plus hundreds of man hours as per items detailed in the approved budget by Kiri and her management . We would be pleased to submit all documentation with all parties plus all material now in the market place for what is a unique and prestigious series of events. In view of the above, we inform you that we are continuing with these events as per all previous agreements and documentation. We look forward to overcoming your concerns. 178 On 13 April 2004, Mr Williams sent an email to Mr Grace advising that he was still waiting for the date of Dame Kiri's availability when she was to revisit Australia/New Zealand in April. Mr Williams advised that Mr Farnham had indicated that he would fit in with any time and date convenient to Dame Kiri, and that he would telephone him on Thursday to give him a "progress report on the concerts". 179 Mr Gleeson claimed that Mr Wheatley telephoned him on 15 April 2004 and that they had a conversation to the following effect: Wheatley: Paul, strictly off the record, I need to know what is happening here. Gleeson: I think the proposed concerts have fallen through. Wheatley: Why, for heaven's sake? Gleeson: The lack of an agreed programme. It was also a pity that the meeting in Auckland with John Farnham could not take place. Wheatley: What I can't work out Paul is why Frank Williams went ahead and produced the expensive launch artwork and gifts and made other significant financial commitments without a signed agreement. It seems absurd. Gleeson: I agree. Wheatley: I'd never have done that and I'm sure you wouldn't either. Why did Frank do it? Gleeson: I have no idea. 180 Although Mr Wheatley admitted that he had a conversation with Mr Gleeson at this time, he denied that it occurred as Mr Gleeson claimed. Mr Wheatley claimed that it was Mr Gleeson who said that he could not understand why Mr Williams would incur such expenditure without a signed agreement and that it was "unusual". Mr Wheatley claimed that in response to that suggestion he said that it was not unusual and that this happens in the business "all the time" (tr 265). Mr Wheatley referred in his evidence to that fact that Tom Jones did not sign his contract until after he left the country (tr 265). He also made the point earlier in his evidence that in the 25 years he has been managing Mr Farnham he has not had a written contract (tr 247). Whether it was Mr Gleeson or Mr Wheatley who made the observation about the lack of a written agreement is not going to matter in the determination of whether there was a binding agreement between the plaintiff and Mittane as pleaded. However the conversation does evidence the obvious lack of real explanation for the cessation of negotiations by Mittane and the uncertainty as to whether there was a prospect of reviving them. 181 Mr Gleeson also gave evidence that he had a conversation with Mr Williams in mid April 2005, in which he said words to the effect: I think the concerts are beyond redemption. I'm not sure of all the reasons but the programme issue is a major one. Nick and I are still trying to resolve the issue. 182 Mr Gleeson gave evidence that during one of the conversations in mid-April, after Mr Williams referred to the fact that he had spent 20 years building his reputation up, he informed Mr Williams that, "Nick's told her you have spent quite a bit of money". 183 On 16 April 2004, Mr Williams telephoned Mr Grace and asked him what was going on. Mr Grace advised Mr Williams that nothing had changed since Mittane's last letter to him. During that conversation Mr Williams informed Mr Grace that he did not accept that situation and that he may be forced into legal action. There was also unresolved discussion in relation to whether Dame Kiri had advised another person in the industry, James Erskine of IMG, that she would not be performing at the Concerts some weeks before Mittane wrote to the plaintiff notifying it of the cessation of negotiations. 184 On 27 April 2004, Mittane wrote to Mr Williams in response to his letter of 31 March 2004. That letter included the following: · Mittane has not entered into any contract to provide the services of DKTK in Australia in February 2005. · All discussions to date have been about an agreement to enter into a contract. · No substantive discussions have taken place about the artistic content of any programme. · At no time would Mittane have agreed to provide the services of DKTK without an agreed artistic programme. · All discussions between Nick Grace Management (NGM), Leading Edge Events and the Farnham Organisation have been subject to contract and to an agreed artistic programme. · Any discussions between the relevant musical directors of the two artists have been general and have not created any contractual obligations. · The two artists have never met. · Despite there being a draft budget, at no time have NGM or ourselves been advised of any significant advanced payments. Indeed, we would not have expected there to have been any such expenditure one year in advance of the proposed event and before any final contracts relating to the Artists has been agreed and signed. · The terms of payment to Mittane Limited had not and have not been agreed. Unfortunately, the expenditure incurred has been entirely at the risk of Leading Edge Events as is the case of all events of this nature prior to contractual obligations being finalised. We regret that we do not intend to proceed further with the proposal but may we wish you every success should you chose to proceed with the Farnham Organisation. 185 On 3 May 2004, Mr Gleeson wrote to Mr Grace by email, reporting to him on two "interesting developments today on the Australian situation". Mr Gleeson advised that Mr Wheatley had telephoned him to ask him what was going on, and Mr Wheatley had said that he had spoken with Dame Kiri on the telephone the previous evening in London, and that she had informed him that the main reason she could not do the Concerts was because there was no programme. The email continued: She also spoke about the knickers on the stage scenario! Glen said he got no closer to what was going on and was calling me to see what he'd missed. He said that Frank had been telling him for months that everything had been agreed. He also said that John Farnham was spitting tax ( sic ) about it. Later in the day Kiri called to say that Frank had called her and they spoke for over an hour. It was a very friendly conversation after the first 10 minutes. Kiri said she told Frank that it would be foolish to think about taking legal action etc and asked why he'd even suggested that – he told her it was an automatic response from a difficult situation. She told him she had not seen or spoken to James since before the Gala Concert. Bottom line is that Frank is finding someone else to replace Kiri and needs a reasonable excuse to feed to the public/sponsors. Kiri agreed you and I would come up with something. Frank suggested 'for personal reasons' which Kiri declined. You and I need to come up with something along the lines of – blame it on a musical problem – e.g. she has been preparing for another project which vocally would have prevented her participating in the Australian concerts AT THAT TIME – in other words leave the door open to the thought that she might consider doing it at some other undefined time. Can we discuss tonight? Whatever we decide Kiri wants to see it first. 186 In the following months up to June 2004, Mr Williams attempted to secure a replacement for Dame Kiri and decided that until it was "certain" that Dame Kiri would not perform at the Concerts and/or until it was certain that a suitable replacement for Dame Kiri could not be found, the plaintiff would not make any announcement about the Concerts. That plan was not acceptable to Mr Wheatley, who wrote the following email to Mr Williams and Ms Newbury on 19 June 2004: I have just seen your website for the first time, and I think it is very dangerous to leave the Dame Kiri/John Farnham info up for all the world to see. If John sees this he will not be happy. I think you have also given far too much info out on this site. Those figures we are asking for were for Chief executives only. Anybody can access this site, and I am decidedly uncomfortable for the world to see what we are asking for naming rights sponsor etc. This is fantastic reading for the tabloids, and I think we have been extremely lucky to have gotten away with this not getting to the general marketplace. If I had known you were going to put this much information up, I would have strongly opposed it from the word go. I really want to pull this down now. This show is never going to happen because it is wrong and probably breaking every rule with the ACCC. The reference to Kiri must come down on Monday. 187 Counsel for Dame Kiri and Mittane suggested to Mr Wheatley in cross-examination that this email demonstrated that he was always of the view that the Concerts were "wrong" and were never going to happen (tr 254-255). I am not persuaded that this was Mr Wheatley's view. Although the email is worded a little ambiguously, I am satisfied that what Mr Wheatley was intending to convey was that it was "wrong" to continue publication of the website when it was clear to him at this time that the Concerts were never going to happen. 188 In late June or early July 2004 Mr Wheatley informed Mr Williams that he had been speaking to another popular singing artist, Tom Jones, and that he had decided that Talentworks would promote a concert series with Mr Jones and Mr Farnham in February 2005. Although Mr Williams requested that the plaintiff be the co-promoter of the concerts, Mr Wheatley was only willing to offer the plaintiff exclusive sponsorship marketing of the concerts, which the plaintiff subsequently accepted. Those concerts occurred in 2005. Proceedings commenced 189 These proceedings were commenced on 9 November 2005. The proceedings were heard on 29, 30 and 31 January and 1, 5 and 6 February 2007 when Mr RW Evans, of counsel, appeared for the plaintiff; Mr AS McGrath, of counsel, and Ms KE Day, of counsel, appeared for Dame Kiri and Mittane; and Mr R Cobden SC appeared for NGM and Mr Grace. The plaintiff's contract claim 190 From the outset of the trial, I found it difficult to ascertain with any precision the true claim the plaintiff makes in respect of its alleged contract with Mittane. The claim as pleaded in the Commercial List Statement filed with the Court on 9 November 2005 is as follows: 9. By about 15 December 2003 it was agreed between the Plaintiff and Mitani that [Dame Kiri] would perform at the Concerts on the following terms: 1. the Concerts would take place in Melbourne on 12 and 13 February 2005 and in Sydney on 5 February 2005 (with an option for a second concert in Sydney on 6 February 2005, if demand required); 2. that [Dame Kiri] would perform with John Farnham and each would be paid a guaranteed fee of $200,000 for each Concert; 3. that the plaintiff would be paid a fee of $600,000 from the net profits for managing and promoting the Concerts; 4. that the balance of the net profits from the Concerts after payment of 2 and 3 and all other expenses would be equally divided between [Dame Kiri], John Farnham, Talentworks Pty Limited and the Plaintiff. 5. that the financial arrangements for the Concerts were to be generally in accordance with budgets prepared by the Plaintiff and approved by [Mr Grace] and/or [NGM] on behalf of [Dame Kiri]. 6. that [Dame Kiri] would help to promote the Concerts and, in particular, would attend the sponsorship launch of them. Particulars 1. Telephone calls between Frank Williams on behalf of the plaintiff and [Dame Kiri] in August and October 2003. 2. Telephone calls between Frank Williams, on behalf of the Plaintiff, and [Mr Grace], as agent for [Dame Kiri], between July and December 2003. 3. Emails and/or letters between the Plaintiff and [Dame Kiri] and/or the plaintiff and [Mr Grace] and/or [NGM] as agent for [Dame Kiri] between July and December 2003. 4. Mitani letter dated 7 July 2003 setting out standard terms of engagement of [Dame Kiri]. 10. In about December 2003, it was agreed between the Plaintiff and Mitani and [Mittane], that [Mittane] would replace Mitani as the other contracting party by Mitani novating its contractual rights and obligations to it. PARTICULARS 1. The provision of a draft written contract, nominating [Mittane] sent by [NGM], to the Plaintiff, by email on about 15 December 2003. 2. Telephone discussions in December 2003 between Frank Williams, on behalf of the Plaintiff, and [Mr Grace] of on behalf of [Dame Kiri]. 191 The plaintiff's Outline of Opening Submissions in relation to the contract claim was as follows: 3.1 The contract 3.1.1 The plaintiff and Mitani had been in negotiation since mid 2003 and had reached agreement upon essential terms by mid December 2003. They intended to be bound and in due course sign the Mitani letter in terms not different in effect. The acceptance by the plaintiff of Mittane as the new contracting party novated the Mitani contract to Mittane. In those circumstances, there was a binding contract with Mittane, whether its letter was signed or not. Masters v Cameron (1954) 91 CLR 353 at 360-362. 3.1.2 The matter of the letter of credit was introduced in the Mittane letter. [Mr Williams] had requested that this be re-negotiated, to be replaced by payment by instalments. The plaintiff was not going to give up the valuable commercial opportunity that it had negotiated and worked upon for months, and would have provided the letter of credit if insisted upon. 3.1.3 Mittane repudiated the contract by its facsimile letter dated 30 March 2004 informing the plaintiff that it was ceasing negotiations and no longer holding the availability for [Dame Kiri's] services. 192 The plaintiff claimed that its loss and damage is $600,000 for the agreed management fee; plus $147,349.26 for expenses and wages plus a one-quarter share of the net profits from the Concerts. The plaintiff also made an alternative claim that it suffered the loss of opportunity to receive the agreed management fee and share of the net profits of the Concerts. 193 In oral opening submissions on the first day of the trial, counsel for the plaintiff informed the Court that it was the plaintiff's case that an agreement was actually entered into in December 2003 and that the Mittane Letter attached to the email of 16 December 2003 "encapsulated the terms that had been agreed" (tr 3). In closing submissions counsel for the plaintiff relied upon a Schedule (Ex Z) that listed over 70 documents in the Court Book as evidencing "conduct going to proving a binding contract". Documents in the Court Book additional to those in the Schedule were also relied upon during final oral submissions. 194 The plaintiff claims that immediately prior to the receipt of the Mittane letter on 16 December 2003, there was an "oral agreement" on foot, evidenced by emails that provided for every contingency and every exigency that would be required under the contract. It was submitted that the parties had intended to be bound by the terms of the oral agreement, and in due course sign a letter setting out the terms that had been agreed. The following exchange took place in final submissions (tr 427-428): HER HONOUR: I would be assisted by you telling me where I find the formation of a contract in the documentary material. I know you have given me a schedule, but if it is truly propounded, on behalf of the plaintiff, that in these volumes of the Court Book there was in fact a meeting of minds of the relevant parties and an agreement, I would be assisted by the excursion very much. … EVANS: … This is not a case where you can actually identify the offer or the acceptance or the precise time of the meeting of the minds. There is authority to which I will take your Honour which speaks of the actual time a contract is made sometimes being very difficult to ascertain. 195 Counsel for the plaintiff, Mr Evans, also made the submission that it was really a question of "building things up" (tr 43), and that in this case it is not appropriate to apply an offer and acceptance analysis. In this regard, Mr Evans relied upon the following passage of McHugh JA's judgment in Integrated Computer Services Pty Limited v Digital Equipment Corporation (Australia) Pty Limited (1988) 5 BPR 11,110 at 11,117-11,118 as follows: It is often difficult to fit a commercial arrangement into the common lawyers' analysis of a contractual arrangement. Commercial discussions are often too unrefined to fit easily into the slots of 'offer', 'acceptance', 'consideration' and 'intention to create a legal relationship' which are the benchmarks of the contract of classical theory. In classical theory, the typical contract is a bilateral one and consists of an exchange of promises by means of an offer and its acceptance together with an intention to create a binding legal relationship … Moreover, in an ongoing relationship, it is not always easy to point to the precise moment when the legal criteria of a contract have been fulfilled. Agreements concerning terms and conditions which might be too uncertain or too illusory to enforce at a particular time in a relationship may by reason of the parties' subsequent conduct become sufficiently specific to give rise to legal rights and duties. In a dynamic commercial relationship new terms will be added or will supersede older terms. It is necessary therefore to look at the whole relationship and not only at what was said and done when the relationship was first formed. 196 The plaintiff claimed that in the present case the parties had been in negotiation and had reached agreement upon terms of a contractual nature, and had also agreed that their negotiation would be dealt with by way of a formal contract. It was submitted that this is a case that belongs to the first class in Masters v Cameron (1954) 91 CLR 353, described by Dixon CJ, McTiernan and Kitto JJ at 360 as "one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect". The plaintiff claimed that its acceptance of Mittane as the new contracting party "novated the Mitani contract to Mittane", and there was a binding contract whether or not the Mittane Letter was signed. It was also submitted in final oral submissions that the irrevocable letter of credit clauses in the Mittane Letter were additional terms to those that had been agreed between the plaintiff and Mitani and that the plaintiff, through Mr Williams, requested that these additional terms be renegotiated. It was submitted that the plaintiff's preference was to have a provision for payment by way of instalments and that those terms "would replace the letter of credit terms" (tr 427). 197 The defendants submitted that where the communications between the parties were in writing (as was predominantly the case here, principally in the form of email correspondence) the question of their intention is, prima facie, to be resolved objectively and as a matter of construction of the relevant documents (Australian Broadcasting Corp v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 per Gleeson CJ, with whom Hope and Mahoney JJA agreed, at 549, applying: Sinclair Scott & Co Ltd v Naughton (1929) 43 CLR 310 at 317; Masters v Cameron (1954) 91 CLR 353, at 362; Gissing v Gissing [1971] AC 886 per Lord Diplock at 906; and Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 per Lord Diplock at 502). 198 Counsel for Dame Kiri and Mittane submitted that this is not a case in which the Mittane Letter merely reflected the terms and conditions to which the parties had already agreed. It was submitted that the plaintiff sought numerous detailed changes to the Mittane Letter, after it consulted Talentworks in late January 2004. The defendants highlighted the fact that Talentworks was not even a party to the Mittane Letter when it was sent to the plaintiff in December 2003. It was submitted that even at the meeting in Auckland no agreement was reached on the issues of: (a) the irrevocable letters of credit (a matter about which Mr Grace was going to revert to Mittane); and (b) whether Dame Kiri would sign an inducement or "side" letter (also a matter which Mr Grace was going to discuss with Mittane). The defendants also emphasised the fact that Talentworks is not a party to the proceedings. 199 The plaintiff relied upon the conduct of the parties after December 2003 in support of its claim that an agreement had been reached in December 2003: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 per Heydon JA at 164 [26]. The first matter relied upon in this regard was the claim that Dame Kiri participated in the organisation of a "sponsorship launch" for the Concerts at Werribee Park, on 9 March 2004. There is no doubt that plans were being made for Dame Kiri to attend the sponsorship launch in Melbourne on 9 March 2004 and that the plaintiff agreed to purchase a new first class air ticket to London with Singapore Airlines for Dame Kiri to accommodate her trip to Melbourne. There is also no doubt that the plaintiff, Dame Kiri, Mr Grace/NGM and Mr Gleeson were all working towards the launch occurring on 9 March 2004. One of the reasons the meetings took place in Auckland in late February 2004 was for the purpose of discussing what would occur at that launch. 200 It may seem peculiar that Mr Grace would not inform Dame Kiri in his written communications of the nature of the launch however, Mr Grace had worked with Dame Kiri for a number of years and made a judgment that it would be better to explain the nature of the launch in person rather than by telephone or email. It is probable that he knew that he would need to persuade Dame Kiri that a sponsorship launch was appropriate, having regard to the fact that her previous experience was that she would only meet with sponsors after her performances. Dame Kiri's facsimile to Mr Grace on 13 February 2004 clearly demonstrates her concern about his lack of communication with her on the topic of the launch. Ms Newbury and Mr Williams had unfortunately proceeded with rather loose language by referring to the launch in some of their communications as a "press" launch and Dame Kiri's fax of 13 February referred to the event as a "press conference". However Mr Grace/NGM and thus Mittane were well aware of the nature of the launch from the time the materials were sent to Mr Grace in late December 2003. 201 Dame Kiri expressed a number of concerns in her fax of 13 February 2004 including the fact that it appeared to her that arrangements had not been put in place for those who travelled with her to be included in the trip. That clearly demonstrates an intention to be present at the launch, even if its nature was not clearly understood. Dame Kiri did not want to attend it, as she put it, "all on my own". She also expressed her concern about the lack of a "proper programme". She was asking Mr Grace to clarify "all of this" because she felt that it would become "an embarrassing situation" and she may not be able to "get out of it". I have little doubt that the concern expressed in that regard was consistent with an intention at that time to attend the launch and a need to sort it out before it went very much further. This fax demonstrates Dame Kiri's concern that she might be locked into something that she ultimately did not like. The fact that intention existed in mid-February 2004 is a factor to be taken into account when deciding whether a contract had been concluded or an agreement reached between the plaintiff and Mittane in December 2003. 202 The Mittane Letter provided that Mittane would procure Dame Kiri to participate in media interviews and associated promotional activities in connection with the Concerts, subject to Dame Kiri's availability and prior agreement on each occasion (cl 2.3). There was no express provision in relation to a "sponsorship launch" on 9 March 2004. 203 The next matter relied upon by the plaintiff in this regard was the fact that Dame Kiri provided her signature which, it was claimed, she knew was to be used on invitations to be issued to potential sponsors to attend the sponsorship launch. There is little doubt that Dame Kiri knew that the plaintiff was going to utilise her signature for some form of promotional material. This is not a claim of imputed knowledge in Dame Kiri by reason of knowledge in the agent Mr Grace/NGM or Mittane. The allegation made in the Commercial List Statement is that when Dame Kiri provided her signature she knew that it was to be utilised for invitations to be sent to prospective sponsors to attend the sponsorship launch. 204 Dame Kiri gave evidence that in about late 2003 or early 2004, Mr Grace asked her for her signature and she complied and signed her name on her letterhead and gave it to him. Her evidence was that it was not uncommon for her to provide her signature to Mr Grace to be used for message inserts into programmes, advertising and press kits. Dame Kiri's gave evidence that she had "no idea" that her signature provided to Mr Grace on this occasion was intended to be used for any materials for a sponsorship launch for the Concerts. I accept that evidence. Mr Grace did not tell Dame Kiri that it was for a sponsorship launch and indeed warned Mr Gleeson not to tell Dame Kiri about the nature of the launch, so that he would have the opportunity of telling her himself when he saw her in New Zealand in the last week of February 2004. 205 The plaintiff relied upon the conduct of Mr Grace and NGM providing material, on Dame Kiri's behalf, for the sponsorship packages and approving the sponsorship packages. Although I accept that at the date she provided her signature Dame Kiri did not know that it was to be used for the "sponsorship" launch, it is quite clear that Mr Grace and NGM and thus Mittane were well aware of the purpose for which the signature was obtained. The detail of the artwork and the content of the invitations and sponsorship packages were sent to Mr Grace in December 2003 and approval was sought for its use in January 2004 for approval. Mr Grace approved it by his email of 24 January 2004 in which he said that it seemed "fine to us". Although the agreement between NGM/Mr Grace and Mittane provided that NGM was not appointed as Mittane's agent, it is clear that Mr Grace and NGM held themselves out as having some agency authority from Mittane, although Mr Grace claimed that he would have to revert to Mittane when Mr Williams put the counter offer in relation to the irrevocable letter of credit 206 Other aspects of the post December 2003 conduct relied upon by the plaintiff include Mr Grace and NGM making comments on the draft budgets and submitting them for further comment by the plaintiff. There is no doubt that this occurred and that by January 2004, Mr Grace had indicated that he was much "happier" with the items in the budget. Other aspects of the conduct relied upon in this regard included Mr Grace advising Mr Williams that it was "essential" that he attend the meeting in Auckland; the expenditure on travel and accommodation arrangements for that meeting; the purchasing of the alternative ticket for Dame Kiri with Singapore Airlines; the funding of the helicopter trip for Dame Kiri to the Bay of Islands on the day of the Auckland meeting; and the arrangements for travel and accommodation for Dame Kiri and her entourage to attend the launch in Melbourne on 9 March 2004. Dame Kiri admitted in cross-examination that when she departed from the meeting on 29 February 2004 in Auckland, it was left on the basis that she would be attending the launch in Melbourne on 9 March 2004 (tr 333). 207 There is no issue that all of this happened and that the plaintiff incurred expenditure in relation to a great deal of it. The question is whether it evidences an agreement having been reached in December 2003. Was there a contract? 208 The Mitani Letter of July 2003 was provided to Mr Williams in response to his suggestion that he should have a look at it so that there would be "no surprises" when they came to "draw up the legals". That Letter made no mention of an irrevocable letter of credit, but did provide that time was of the essence for the payment of the Fee. That Letter left provision for the Fee to be negotiated and it is fairly obvious that the time for payment of that Fee would also have to be the subject of that negotiation. 209 It was on 16 July 2003 that Mr Williams first asked Mr Grace to "prepare contracts" for concerts for Dame Kiri on 5 and 12 February 2005 and to "add a proviso" that Dame Kiri would not be performing in Australia in 2004. Of course, this was a request that related to concerts for Dame Kiri alone in a winery in the Southern Highlands in New South Wales and at Werribee Park in Victoria. 210 The communications on 11 August 2003 in which Mr Williams asked Mr Grace to "confirm dates of 5th and 12th February, 2003 in Melbourne and Sydney"; and in which Mr Grace advised Mr Williams that he needed to reassure Dame Kiri about the choices of orchestra "prior to any contractual commitment", were at a time when the concerts were for Dame Kiri alone. Mr Farnham's participation was not contemplated at the time of these communications. That occurred in the following two weeks. 211 The "letter of intent" from Mitani to the plaintiff was dated 21 August 2003. The description "letter of intent" is used in the commercial world and in some instances can create more uncertainties than an absence of such a letter. It has been observed that the function of such a letter is not dissimilar to an agreement 'subject to contract' with a clear intention that the parties will continue to negotiate whilst not being necessarily irrevocably bound to each other: J Carter Contract, Restitution and Promissory Estoppel (1989) 12 UNSWLJ 30 at 40. The status of the relationship between the parties at the time of such a letter will depend upon the terms of the letter in question and the surrounding circumstances. 212 The Mitani letter of intent was carefully worded. It advised that it was "provisionally holding the dates of 5th & 12th February 2005 for possible concerts in Australia (Melbourne & Sydney) featuring Kiri Te Kanawa and John Farnham". The expression "provisionally holding the dates" combined with the expression "possible concerts" conveyed to the plaintiff that these dates were held only for the time being. Although Mr Grace described it as a "letter of intent", it contained absolutely no certainty or permanency. Mr Williams agreed in cross-examination that "provisionally" could mean "a year, a month, a week" (tr 74) and said that the reference to "possible concerts" was a "safety valve" for Mitani (tr 73). 213 It was on 30 September 2003 that Mr Williams suggested to Mr Grace that if he "would like to draft a suitable contract based on what we have discussed please do so". On 18 October 2003, Mr Williams asked Mr Grace "How is the contract progressing? When can I expect to receive?". On 20 October 2003, Mr Grace advised Mr Williams that a "Draft contract" would "follow as soon as possible for your comments". On 24 November 2003, Ms Newbury joined the quest for a contract. She advised Mr Grace, "We need the contract to be signed as soon as possible to enable us to proceed further. We would like all contracts to be finalized and signed off by 1st December as we will be launching to the corporate market in February 2004." That communication from Ms Newbury does not suggest that agreement on all matters had been reached and that all that was remaining was merely a matter of signature. Ms Newbury suggested that the contract had to be "finalized" and "signed off". 214 Mr Williams was cross-examined in relation to this request for a contract by Ms Newbury in her email of 24 November 2003, and gave the following evidence (tr 79-80): Q. Now, it represented the position, didn't it, in your mind, that, as at the date of this email, you needed a contract to be signed as soon as possible to enable you to proceed further? A. No. I already had an agreement. The contract never ever bothered me. The written contract. It bothered me to the extent that in an ideal world we would like a written contract. But did it bother me? No. It bothered other people far more. Q. It bothered Eileen Newbury? A. Of course. … Q. So, was it true or not that, as at 24 November 2003, you thought that you needed a contract to be signed as soon as possible to enable you to proceed further? … Q. You personally? A. I was never concerned about the signed contract. Q. And you were content, were you, for Ms Newbury to send out an email that did not reflect your view, were you? A. Yeah. I mean, any decision she made on behalf of the company was fine by me. She was my partner and she was responsible for all the logistics of making things happen. … Q. The statement in the email, from your perspective, that "we need the contract to be signed as soon as possible to enable us to proceed further" was false, wasn't it? A. I would have worded that sentence a little differently. Q. Is the answer to my question "yes"? A. Ideally, yes, I would have liked it. Q. Indeed, the statement in the e-mail, from your perspective, that "we would like all contracts to be finalised and signed off by 1 December as we will be launching to the corporate market in February 2004" was also false, wasn't it? A. No. In an ideal situation, again, that would have been an ideal situation, but it is very rarely the ideal happens. Q. So, are you saying to her Honour that you did not think that you wanted all contracts to be finalised and signed off by 1 December? A Ideally I would. 215 Mr Williams agreed that Ms Newbury was "concerned" about the lack of a signed written contract, although he would not agree that she was "very concerned" (tr 77). I do not accept that the lack of a written contract "never ever bothered" Mr Williams. I have little doubt that he was concerned to have a signed written contract, but that he saw the provision of an irrevocable letter of credit for some hundreds of thousands of dollars within days of signing the contract as a liability he did not wish the plaintiff to have to incur. 216 Ms Newbury was initially resistant to the suggestion in cross-examination that she wanted a signed written contract but she then gave the following evidence (tr 165-168): Q. By the end of November 2003 you had started to develop quite a number of concerns in relation to the absence of a signed written contract for Dame Kiri to perform at those concerts, hadn't you? A. Quite a number of concerns? Q. Yes? A. My concern is that I like to dot I's and cross T's and I needed the terms looked at inside the contract. Q. You were very concerned? A. Not very concerned because my partner was telling me that she doesn't sign contracts, Nick also said the same thing, it was standard. Q. You were telling him that you were very concerned, weren't you? A. That's my personality. Q. You accept, don't you, that you were telling him you were very concerned? A. I was concerned. Q. Very concerned? A. Don't put words into my mouth, I was concerned. Q. You discussed your concerns with Mr Williams at the time, didn't you? A. Probably yes. Q. And you agreed with Mr Williams that you needed to send an e-mail to Mr Grace at the end of November 2003 expressing the need to sign a written contract, didn't you? A. Possibly, I would have to check my notes what date that was. Q. Could you please turn to page 529 of the volume before you? Could you read that e-mail to yourself? You will see it is dated 24 November 2003 and it is from your e-mail address but it has your name and also the name of Mr Williams at the sign off portion and it is to Mr Nick Grace. You would accept, wouldn't you, that that was an e-mail which you discussed with Mr Williams before it was sent? A. Yes. Q. And you would accept, wouldn't you, that it expressed the joint views of you and Mr Williams in relation to the position that existed at that time? A. No, these were my views. Frank's name was on this because we were both in the office at the same time. Q. You drafted that e-mail? A. Yeah, that's right. Q. You showed it to him before you sent it? A. Well, we were probably sitting there together. Q. So, you jointly drafted it together? A. Yes. Q. And Mr Williams agreed with its contents before it was sent? A. Possibly. I am presuming he was there if, he may not have been there. Q. I thought you just told me that-- A. I really can't remember if he was in the office at the time, I am not sure, it says Eileen and Frank, so, you know, I don't know. Q. But you will accept, wouldn't you, no matter where he was you discussed it with him before it was sent? A. Well, he knew that I wanted some I's dotted and so forth. Q. You expressed, didn't you, that you needed the contract to be signed as soon as possible to enable you to proceed further? A. We never stopped working on the concert even after that e-mail. … Q. That reflected your view at the time, didn't it? A. Well, they were my words at the time, my view, I never intended for us never to proceed further. Q. So, are you saying that the statement in that e-mail is false? A. Yes. Q. And you were content, were you, to make a false statement to Mr Grace at that time? A. A false statement saying to enable us to proceed further? Q. Yes? A. Yes. Q. So, you say that e-mail doesn't reflect the view that either you held at that time or Mr Williams held at that time? A. No, we never stopped work on the project. … Q. I put it to you that you held the view that you needed a contract to be signed as soon as possible to enable you to proceed further at the time, didn't you? A. I didn't hold that view, that was a sentence that I wrote to try and get the contracts, to try and get the terms sorted out. We never stopped working at all on the project so that is a false statement I have written in. Q. I put it to you that the evidence you now give, the answer you have just given is false? A. The answer I have just given is not false. Q. Is false? A. No. Q. Because the position was, wasn't it, that you needed a contract to be signed as soon as possible, wasn't it? A. I did not need the contract to be signed as soon as possible, we had verbal agreements and e-mail agreements in place. Q. You thought, didn't you, that you needed to finalise and sign a contract to enable you to proceed with the launch that you planned for February of 2004, didn't you? A. No, I did not. Q. You thought, didn't you, that there was a risk to your company that it would have to pay all of the expenses that it had just begun to commit itself to if it did not get a signed contract in place for Dame Kiri's performance? A. No, I'm sorry, no. Q. You were worried that without the signed contract that Dame Kiri might not perform, weren't you? A. No. 217 This evidence does little for Ms Newbury's credibility. It is obvious that she was concerned to have a signed written contract and that she had discussed her concerns with Mr Williams. I do not accept that the email of 24 November 2003 contained a falsity. I accept Ms Newbury's evidence that the plaintiff "never stopped work on the project" however I am of the view that the email reflected Ms Newbury's view at the time, that the plaintiff needed the protection of a signed contract "to proceed further", as it was about to incur greater expenditure in the lead up to the sponsorship launch. 218 Ms Newbury pressed on further in December with her facetious email to Mr Grace noting there was still "no contract", and advising him that they were still at the same address. Even if I were to accept that Mitani and the plaintiff had agreed on many things, including the dates of the Concerts and the amount of the Fee for Dame Kiri, it is clear beyond any doubt that when the Mittane Letter arrived on 16 December 2003 there had been no agreement as to the method or timing of payment of Dame Kiri's Fee. The Mitani Letter had provided for time for the payment of the Fee to be of the essence and that was to be a fundamental and essential term of the proposed contract. That had not been agreed. The Mittane Letter set that out what it proposed in clear terms. The method and timing of the Fee for the two Concerts was to be by way of irrevocable bank letter of credit for $400,000 to be sent to Mittane within 7 days of the signing of the Mittane Letter. The method and timing of payment for the optional Concert(s) was once again by irrevocable bank letter of credit payable within 7 days of the confirmation of the optional Concerts by the plaintiff. This term was a fundamental and essential term of the proposed contract. The signing of the contract was the trigger for the provision of the letter of credit and was a fundamental and essential requirement before the plaintiff became liable to deliver it to Mittane. 219 It was not suggested in any of the correspondence that agreement had been reached on all matters by 15 December 2003, and that the terms of the Mittane Letter were outside that agreement. Rather, Mr Williams claimed that he asked Mr Grace whether it was seriously suggested that the plaintiff should be liable before "even a note [had been] sung". The plaintiff sought to negotiate the irrevocable letter of credit requirement, and I have no doubt that Mr Williams was hopeful that Mittane might relax that requirement, notwithstanding that Mr Grace had indicated both orally and in writing that he believed that Mittane would not do so. It was not until late February 2004 that Mr Williams put a counter proposal that 25% of the Fee be paid on signing of the agreement, with the balance to be paid in September/October 2003. 220 Mr Williams and Ms Newbury claimed that at the first meeting in Auckland, Mr Williams informed Mr Grace that although he was still "not happy about "the irrevocable letter of credit he would "do it" if "that is what [was] to happen". This discussion took place on 27 February 2004, on Mr Grace's version, or on 29 February 2004 on Mr Williams' and Ms Newbury's versions. Mr Grace denied that Mr Williams said he would "do it", if that was what was to happen. Mr Grace claimed that Mr Williams said "there was no way" he was going to agree to the irrevocable letter of credit, because he would then have to "give one" to Mr Farnham and "financially" that was a "huge problem". 221 No one took any notes of the meeting in relation to the discussion about the irrevocable letter of credit, and it is apparent that statements of evidence were not prepared until at least 18 months after the discussion. I am satisfied that the first meeting did not take place on the morning of 29 February 2004. I accept that Mr Gleeson was assisting Dame Kiri with other meetings on the morning of 29 February 2004, and could not have been present at a meeting prior to arrival at the meeting with Dame Kiri on that morning. There is also the entry "Frank" at 5pm in the running sheet for the rehearsal on 27 February 2004. I prefer the evidence of Mr Grace and Mr Gleeson as to the date on which the first meeting was held and I am satisfied that it was held on Friday 27 February 2004. 222 Contemporaneous documents or documents written within a reasonable time after a relevant discussion may assist with the determination of what was said at the time. In this instance the evidence of Mr Grace's communications with Mr Green at Mittane provide a little assistance. 223 In examination-in-chief, Mr Green said that on 23 March 2004 it became clear to him that the financial arrangements in relation to the concerts had not been settled, and he was informed that Dame Kiri was "unhappy" with some aspects of the Concerts, in particular the "cross over elements" (tr 355). He gave the following evidence (tr 355): Q. After reaching that view did you do anything? A. At the second meeting that we had on 23 March with Mr Grace present we agreed that one of us would write a formal letter to say that unless we could get the financial arrangements resolved to our satisfaction that we would have to terminate the negotiations. 224 In cross-examination, Mr Green accepted that Mittane had received the fax from Mr Grace asking Mittane to forward a fax to Mr Williams "as per the following draft", and that Mr Grace was of the opinion that such draft was the "best way to deal with Frank" (tr 368). Mr Green gave the following evidence in cross-examination (tr 368-369): Q. Had you had any prior discussions with him as to the best way to deal with Frank? A. In our meeting we had discussed that he would help us with the drafting, and that the principal objection that we would raise at that stage was the financial payment, but also mentioning the nature of the concert itself. Q. Would you agree with me that between you, Neil Grainger, and Nick Grace, you were trying to devise an exit strategy for Dame Kiri so that she would not have to perform at the concerts? A. No, I do not agree with that, because, in my view, there wasn't a contract. Q. Was there discussion that it was hoped that Frank wouldn't proceed once he received the draft letter? A. It was a notice to terminate further negotiations. Q. Again, did you have a strategy, as it says, in the unlikely event that he does promise the finances, you will have to think again? A. The decision had already been made, basically, on the nature of the concert. Q. This was your plan to, if I can put it this way, unload Leading Edge Events, wasn't it? A. It was the plan to cease negotiations. 225 As can be seen from the above, Mr Green had given evidence-in-chief that unless Mittane could resolve the financial arrangements negotiations would be terminated. Of course that is a different position to that contained in the letter that was sent to the plaintiff on 30 March 2004. That letter gave the plaintiff no option to resolve the financial arrangements. Mr Green agreed in cross-examination that on 23 March 2004, he had been informed that Dame Kiri had said that she did not want to perform at the Concerts (tr 367-368). He would not accept that the letter sent to the plaintiff was peremptory and suggested that the change from the draft prepared by Mr Grace to the words of the letter that was sent to the plaintiff on 30 March 2004 were merely "much stronger". Mr Green suggested in his evidence that he had been advised that the plaintiff would not consider the request for an irrevocable letter of credit (tr 369). I am afraid that evidence is totally inconsistent with the communication from Mr Grace enclosing the draft that he suggested should be sent to Mr Williams. It is obvious from Mr Grace's letter that the plaintiff had not totally rejected the request for an irrevocable letter of credit, otherwise Mr Grace would not have described the prospect of Mr Williams promising the finances as an "unlikely event". Mr Grace's letter stated that he hoped Mr Williams would not proceed. The language of Mr Grace's letter would convey to the reasonable reader, and I have no doubt conveyed to Mr Green, that although the plaintiff was unhappy about the irrevocable letter of credit, it had not rejected it outright. 226 I am satisfied that it is probable that Mr Williams did not say that "there was absolutely no way" that he would agree to an irrevocable letter of credit. If he had said that, I doubt that Mr Grace would have referred to the "unlikely event" of Mr Williams coming up with the money. On the other hand the use of that expression does not mean that I accept that Mr Williams advised Mr Grace that he would "do it" if it was required. Mr Grace's proposed fax to Mr Williams gave the option to Mr Williams to agree to the irrevocable letter of credit. If Mr Williams had said that he would "do it", that is, agree to the irrevocable letter of credit if Mittane required it, I have little doubt that it would have been recorded in the plaintiff's letter to Mittane dated 31 March 2004. What was recorded in that letter relevantly on this topic was a denial that there had been a statement on the plaintiff's behalf that the plaintiff was unwilling to consider the letter of credit. There was also reference to the fact that the plaintiff had said it "would prefer" payment of 25% on signing and the balance in September/October 2003. The letter then recorded: "We are prepared to enter immediately into an Irrevocable Bank Letter of Credit if required". The letter made no mention of such a statement having been made at the meeting in Auckland. On balance, I am satisfied that at the meeting in Auckland in February 2004, Mr Williams did not say that he would "do it" if required. 227 I am of the view that Mittane seized the opportunity to extract itself from further negotiations by characterising the plaintiff's position unfairly and inaccurately. The real reason why Mittane ceased negotiations was that Dame Kiri did not want to perform at these Concerts. It was not because the plaintiff had refused to provide an irrevocable letter of credit. The parties were still in negotiations. 228 Much of this may be a little academic, because the plaintiff does not make a claim that the parties reached agreement in February 2004 in relation to the irrevocable letter of credit. Its case is that agreement was reached in December 2003. I am satisfied that there was no agreement in December 2003. There was no agreement on the essential and fundamental term of the method and timing of payment. There were also other aspects of the Mittane Letter that were the subject of counter proposals by the plaintiff which were not agreed to by Mittane. In the light of these continued negotiations and circumstances, I am satisfied that the post December 2003 conduct is not supportive of an agreement having been reached in December 2003. 229 In support of the claim that no agreement had been reached, counsel for Dame Kiri and Mittane relied upon quite a deal of evidence given by Dame Kiri about the lack of a musical programme. The absence of the musical programme does not support this claim. Both the Mitani Letter and the Mittane Letter both made provision for the "Musical Programme" to be agreed to "as soon as practicable" (cl 1.3). Those letters accommodated a musical programme being agreed to after the contract was signed. 230 There was no concluded contract and Mittane was entitled to withdraw from negotiations, but its conduct suggests to me that it had some real doubts about the fairness of such withdrawal. Mittane was not truthful as to the real reason for its withdrawal, being that Dame Kiri, its employee, simply did not want to perform at the Concerts. I have no doubt that Dame Kiri was extremely resentful that Mr Farnham did not attend the meeting in Auckland and that within days of the meeting in Auckland she disbelieved Mr Farnham's claim (given through Mr Wheatley) that his non-attendance was caused by the fear of flying in a light aircraft in severe electrical storms. That much is clear from Dame Kiri's following evidence (tr 323): Q. Did you still hold the view that John Farnham and Glenn Wheatley were in a position to fly from Napier to Auckland to meet you on the 29th of February? A. I don't know if they were in a position to fly. All I know was that the airport was open. Paul Gleeson's son flew out that day, that very morning, after John Farnham's concert, so we couldn't understand why John Farnham wouldn't leave, yet Mr Gleeson's son could leave. Q. Who is we? A. Paul Gleeson and myself. Q. Was that ever discussed with Mr Williams? A. No, because we didn't realise that the airport was - we were told it was closed, and it was not until after we figured out that it wasn't closed. 231 Whatever be the real reason for Dame Kiri not wanting to perform at the Concerts, I am satisfied that it was the reason that Mittane ceased negotiations. However, commercial morality is not the barometer for determining the existence of commercial contracts and when parties are pursuing millions of dollars in turnover and/or profits, they must expect that those with whom they are dealing may insist on the rigorous application of the law of contract. I am satisfied that the plaintiff and Mitani and/or Mittane had not concluded a binding agreement by 16 December 2003 as pleaded. The plaintiff's contract claim fails. Collateral warranty 232 The plaintiff claimed that Mitani and Mittane warranted that Dame Kiri had read and understood the agreement, and agreed to perform all of the services required under the agreement. In final submissions, Mr Evans submitted (tr 428-429): The Mitani letter, of course, was much earlier than the Mittane letter, but it still had the same effect, and was an early warranty, which was reinforced by a subsequent warranty, provided in the Mittane letter. That was a collateral warranty to induce the plaintiff to make the contract that was on foot prior to 15 December. In respect of the Mittane letter, it was collateral to the plaintiff agreeing to enter into a contract with Mittane, the consideration being, firstly, entering into the contract, or, alternatively, agreeing to a variation as to the letter of credit, as sought by Mittane. 233 The warranty claim as pleaded and outlined by the plaintiff is premised on a finding that there was a binding contract. Having regard to my finding that the plaintiff's contract claim fails this claim also fails. Claim for expenses 234 The plaintiff made the following claim in paragraph 20 of its Commercial List Statement under the heading "Equitable Estoppel Claim": Between July 2003 and February 2004 the Defendants, and/or each of them, by words, writings and conduct made representations to the Plaintiff and in so doing created and fostered the belief, assumption and understanding of the Plaintiff that [Dame Kiri] would perform at the Concerts. 235 Some of the particulars to this claim are extremely broad: for instance, there is reliance on "telephone calls" between Mr Williams and Dame Kiri in August and October 2003 ((Par 20.1), and between Mr Williams and Mr Grace between July 2003 and February 2004 (20.2); and "e-mails" and/or letters between the plaintiff and Dame Kiri and Mr Grace between July 2003 and February 2004 (20.3). The only 'precision' I was able to obtain in respect of these claims, when I pressed counsel for the plaintiff for assistance, was the Schedule (Ex Z) which, as I have already said, listed over 70 documents in the Court Book by number with nothing more, and then listed conversations by reference to paragraph numbers in affidavits and statements with nothing more. 236 There are particulars of more precision being: the provision by Dame Kiri of her signature for use in the sponsorship invitations for the Launch (20.4); Dame Kiri's participation in the organisation of the Launch (20.5); the provision by Dame Kiri of material for use in the sponsorship package (20.6); Dame Kiri's unqualified agreement to attend the Launch (20.7); Dame Kiri's request for specific travel and accommodation arrangements to be made for her to attend the Launch (20.8); Dame Kiri's request for the Auckland meeting (20.9); Dame Kiri's attendance at the Auckland meeting (20.10); the approval of the budgets for the Concerts (20.11); the request to the plaintiff to agree to have the Mittane contract to provide Dame Kiri's services (20.12); the provision of a draft contract by Mittane to procure Dame Kiri's services (20.13); Dame Kiri's approval of the Concert dates (20.14); and the approval of the venues (20.15). 237 The claim in the Commercial List Statement is that the plaintiff relied upon these "representations" and was induced by them to understand, believe and expect that Dame Kiri would perform at the Concerts and by reason of that understanding, belief and expectation, the plaintiff acted to its detriment in funding, organising and promoting the Concerts (21 – 22, 25). The plaintiff also claimed that the defendants well knew, or should have known, that the plaintiff was spending substantial sums of its own monies in promoting the Concerts (23), and that it was "unconscionable" for the defendants to resile from the assumption that Dame Kiri would perform at the Concerts. The plaintiff claims that the defendants are liable to the plaintiff for its wasted expenditure in funding the organisation and promotion of the Concerts (26). 238 The plaintiff submitted that the facts of this case "fit very neatly" into the "principle" to be found in the following passage of Sheppard J's judgment in Sabemo Pty Ltd v North Sydney Municipal Council [1977] 2 NSWLR 880 at 902-903: [W]here two parties proceed upon the joint assumption that a contract will be entered into between them, and one does work beneficial for the project, and thus in the interests of the two parties, which work he would not be expected, in other circumstances, to do gratuitously, he will be entitled to compensation or restitution, if the other party unilaterally decides to abandon the project, not for any reason associated with bona fide disagreement concerning the terms of the contract to be entered into but for reasons which, however valid, pertain only to his own position and do not relate at all to that of the other party. 239 In Sabemo the plaintiff was the successful tenderer to the defendant for a proposal to lease land owned by the defendant and redevelop it into a Civic Centre. It was agreed that the acceptance of the tender did no more than bring the parties together, so that they could plan the project until the point was reached where they would enter into a contractual relationship, namely the proposed lease. The plaintiff's expert employees prepared a number of planning schemes and one that was submitted for approval was rejected because of the height of a particular proposed tower. Further work needed to be done, but before proceeding the plaintiff advised the defendant that it had already incurred costs of $300,000, and requested compensation before proceeding further. The defendant suggested that the cost of the further work should be shared equally. The plaintiff prepared a further scheme that was satisfactory and development approval was granted. Whilst all this work was occurring the solicitors for the parties were negotiating the terms of the proposed lease. The negotiations between the solicitors took some time and in the interim, a councillor of the defendant proposed a far less ambitious scheme for the Centre. Subsequently, the defendant resolved to "drop" the approved scheme in respect of which the plaintiff had provided its services. The plaintiff rendered an account for $426,000 to the defendant for work done "for the defendant" which was not paid. The plaintiff then sued successfully for its recovery. 240 Sheppard J observed that the plaintiff's claim was not in contract and that if it arose it was "quasi ex contractu" (at 882), an expression that has since been labelled "heretical", except where it is used as an historical explanation: K Mason and JW Carter, Restitution Law in Australia (1995) par [125]; see also the similar observations of Young J, as the Chief Judge in Equity then was, in relation to the expression "quasi contractual" in Cadorange Pty Ltd (in liq) v Tanga Holdings Pty Limited (1990) 20 NSWLR 26 at 34. After an exhaustive review of the relevant authorities Sheppard J said at 899-900: The question I must ask myself is whether, at this stage of the development of the law in this country, it is right to say that in some circumstances, in a case of this kind, there will be occasions when the law, irrespective of the common intention of the parties, will impose on one an obligation to pay the other for work done. After due reflection I have reached the conclusion … that there is such a principle in existence. 241 Sheppard J resisted the suggestion that he should fix a limitation that would circumscribe the extent of the right to recovery, and said at 900-901: It is enough for me to say that I think there is one circumstance here which leads to the conclusion that the plaintiff is entitled to succeed. That circumstance is the fact that the defendant deliberately decided to drop the proposal. It may have had good reasons for doing so, but they had nothing to do with the plaintiff, which, in good faith over a period exceeding three years, had work assiduously towards the day when it would take a building lease of the land and erect thereon the Civic Centre. … It has long been the law that parties are free to negotiate such contract as they may choose to enter into. Until such contract comes about, they are in negotiation only. Each is at liberty, no matter how capricious his reason, to break off the negotiations at any time. If that occurs that is the end of the matter and, generally speaking, neither party will be under any liability to the other. … To my mind the defendant's decision to drop the proposal is the determining factor. If the transaction had gone off because the parties were unable to agree, then I think it would be correct … to say that each party had taken a risk, in incurring the expenditure which it did, that the transaction might go off because of a bona fide failure to reach agreement on some point of substance in such a complex transaction. But I do not think it right to say that that risk should be so borne, when one party has taken upon itself to change its mind about the entirety of the proposal. 242 There was no appeal from Sheppard J's judgment in Sabemo. In POS Media Online Ltd v Queensland Investment Corporation [2001] FCA 809 Wilcox J found himself unable to agree with Sheppard J's identification of the principle that "in some circumstances" in cases of the Sabemo kind "there will be occasions when the law, irrespective of the common intention of the parties, will impose on one an obligation to pay the other for work done". Wilcox J referred to the following principle as stated by Burnside J in Sinclair v Rankin (No 2) (1908) 10 WALR 126 at 132: The principle which governs the present case I take to be this, that where work is done in anticipation of a special contract, and such contract is not entered into, no action can be maintained on a quantum meruit in respect of the work done. 243 Wilcox J respectfully disagreed with Sheppard J's conclusions in Sabemo and concluded that, "the law remains as stated in 1908 by Burnside J" [202]. Wilcox J reached this conclusion after referring to the cases that Sheppard J had reviewed in Sabemo and said: 199. The decision of the Supreme Court of New Zealand in Watson v Watson [1953] NZLR 266 is instructive. The plaintiff agreed to work with his brother in the country with a view ultimately to the erection and operation of a sawmill. The plaintiff received no remuneration. Gresson J held the plaintiff acted as he did in anticipation of a partnership in the sawmill; therefore he was not entitled to recover compensation for his labour during the period before completion of construction of the mill. However, the judge held, the failure of the defendant to take the plaintiff into partnership at that time constituted a repudiation of the promise of a partnership, so the plaintiff was entitled to compensation on a quantum meruit basis for his subsequent work. It will be seen the critical question was not whether particular work was beneficial to the defendant, but whether it could fairly be regarded as referable to the envisaged contract between the parties. 200 Sheppard J was fortified by an analogy with the law of restitution which, as he said, has developed significantly in recent years. He said (at 898) "it is now recognized that there are cases where an obligation to pay will be imposed (a promise to pay implied) notwithstanding that the parties to a transaction, actual or proposed, did not intend, expressly or impliedly, that such an obligation should arise. The obligation is imposed by law in the light of all the circumstances of the case". However, since Sheppard J wrote these words, it has become apparent that the basis of that imposition is the concept of unjust enrichment: see Pavey Mathews Proprietary Limited v Paul (1987) 162 CLR 221 especially per Deane J at 256-257. See also Mason and Carter, Restitution Law in Australia , (1995) Butterworths at paras [102] to [104]. At the end of their discussion in those paragraphs, the learned authors identify three factors restricting orders for restitution: "(1) a concept of benefit, (2) obtained at the expense of the person seeking restitution, and (3) the justice of restitution, combine to produce the principle of restitution to prevent or reverse an unjust enrichment." The application of this approach might have led to a different result in Watson v Watson. 244 Wilcox J concluded that "whatever might have been the position in Sabemo" it was impossible to conclude that the respondent had obtained a benefit independently of the licence agreements between the parties. The quantum meruit claim failed. Wilcox J decided POS Media Online Ltd v Queensland Investment Corporation on 29 June 2001 and was not referred to and did not refer to Brenner v First Artists' Management Pty Ltd [1993] 2 VR 221, a decision of Byrne J of the Supreme Court of Victoria. 245 In Brenner Byrne J dealt with the two broad categories of claim commonly described as quantum meruit in particular in relation to the second category where the law imposes on a person an obligation independent of contract to pay a fair and reasonable sum for services, such obligation arising from the law of restitution. That was a case in which a performing artist sought to revive his career and had an arrangement with a management company to assist him in that process. It was not claimed in that case that there was a binding contract, but there was a claim for fair and reasonable value for the management services based not on an implied promise to pay, but upon a quantum meruit arising out of the performer's acceptance of the management services requested by him. 246 The "gist" of the claim in Brenner was that the artist had actually or constructively accepted the benefit of the plaintiffs' services in circumstances where it would be unjust for the artist to do so without making restitution to the plaintiffs. Byrne J made observations in Brenner that I would respectfully adopt in the present case. His Honour said at 257-258: Where a person pays money to another it is not difficult to see that a benefit has thereby accrued to the recipient. Services present greater difficulty. If the law of restitution is available to oblige the recipient of the benefit of services to make restitution, it must acknowledge that such benefit may take many forms. … In my opinion, "benefit" in this context must be seen from the perspective of the recipient who is, after all, the person to be charged. It may be that for some idiosyncratic reason a defendant seeks performance of work which another would see as without benefit or, indeed, as a positive dis-benefit. … But where a person requests another to do something, it is not unreasonable for the law to conclude that the former sees some benefit in its performance, however wrong this view may be on an objective basis and for the law to act upon the perception of the recipient. 247 Byrne J referred to Sabemo (at 258) and the principle of "the expectation of the parties that the work would be paid for", and said at 259: Indeed, where the services have been requested by the party to be charged, the main area of interest is likely to be whether the circumstances of the request are such as to give rise to a right of payment. This will involve proof that the services were not provided as a gift: Pavey's Case, at pp 227-8. Furthermore, it will be necessary for the plaintiff to establish, where a certain event has not occurred, that the services were not provided on the basis that they were not to be paid for unless that event came to pass. In this category will fall cases where a tenderer carries out estimating or other work in response to an invitation to tender for a contract. It is understood in such cases that, in general, the tenderer takes the risk that the tender will be unsuccessful and that, as a consequence, the work will be unrewarded. It may be, however, that, even in such a case, an obligation to pay the tenderer will arise where the contract is not entered into by reason of a change of heart on the part of the proprietor: Sabemo's Case ; or where the work done falls outside that normally expected of tenderers: William Lacey's Case ; or where the work performed is of particular benefit to the proprietor: British Steel Corp. v. Cleveland Bridge and Engineering Co. Ltd. [1984] 1 All E.R. 504. 248 Although at par [200] of POS Media Online Ltd v Queensland Investment Corporation extracted above, Wilcox J referred to paragraphs [102] to [104] of Mason and Carter, Restitution Law in Australia his Honour did not refer to the learned authors' discussion of Sabemo and Brenner at par [1035]. At that paragraph the learned authors observed that Sheppard J held that the plaintiff was entitled to compensation or restitution, but in the state of the law, felt unable to characterise the claim as based on unjust enrichment and applied a principle of entitlement based on three factors being: (1) a joint assumption that a contract would be entered into; (2) work beneficial to the contemplated project, which the plaintiff would not have been expected, in other circumstances, to do gratuitously; and (3) a unilateral decision not to proceed to contract for reasons which, however valid, pertained only to the defendant's position. The authors analysed the "difficulties" in the compensation and restitution approach adopted in Sabemo and expressed the following view: [Sheppard J] may have taken the view that a claim in restitution is a claim for compensation, or held that restitution may be available even though the principle of unjust enrichment does not apply, perhaps on the basis that unjust enrichment applies only in cases of tangible benefit. We do not see either approach as viable today: each has been overtaken by subsequent developments. In Brenner v First Artists' Management Pty Ltd Byrne J, in following Sabemo in the void contract context, did not adopt a compensation rationale. He adopted restitution, and also rejected the thesis that where services have no end product the claim must be based on a ground other than unjust enrichment. He applied the concept of acceptance, and said that the question of benefit is determined by the "perspective of the recipient'. 249 In Independent Grocers' Co-operative Ltd v Noble Lowndes Superannuation Consultants Ltd (1993) 60 SASR 525 the parties had entered into arrangements for the setting up of a superannuation fund (the Fund) for Independent Grocers and Nobel Lowndes had provided a detailed letter outlining the work that it would do to establish the Fund. Nobel Lowndes commenced work on a deed to set up the Fund but before it finalised that work an issue arose as to whether the employees who were members of a union would subscribe to the Fund. The union commenced proceedings against Independent Grocers in the industrial jurisdiction and subsequently Independent Grocers decided to abandon the plan to set up the Fund. Noble Lowndes sought compensation for the expenditure it had incurred in providing the services up to the date that the plan to set up the Fund was abandoned. At first instance the trial judge ordered compensation on the basis of an implied term that Independent Grocers would cooperate to encourage their employees to subscribe to the Fund. On appeal the Court (Legoe and Matheson JJ, Duggan J dissenting) held that Nobel Lowndes was entitled to succeed on a quantum meruit basis for their reasonable costs and expenses incurred in supplying their services (per Legoe J at 538-539 and Matheson J at 556). In applying Sabemo Legoe J said at 539: Before departing from the respondent's claim on a quantum meruit I should briefly deal with the view expressed by my brother Duggan J whose reasons I have perused. I do not agree, with respect, that the circumstances here are such as to compare them with "some agents and consultants [who] are prepared to receive remuneration only if the venture proceeds or is successful. They take the risk that for one reason or another the venture will not reach fruition. The circumstances here, as found by the learned trial judge, were such that the appellant certainly at the time of the agreement in August 1987 through Mr Wodson was anxious to take "the initiative" and regarded the setting of the trust deed as a matter of some urgency. Clearly in those circumstances the respondent was not "taking the risk". The appellant requested the respondent to do the work, which was within its expertise, and the respondent did that work and kept to the deadlines. 250 In Regalian Properties plc v London Dockland Development Corp [1995] 1 WLR 212 Rattee J held that the principle in Sabemo would not have applied to the facts of that case and held that such principle was not established by any English authority. His Lordship said at 231: I appreciate that the English law of restitution should be flexible and capable of continuous development. However I see no good reason to extend it to apply some such principle as adopted by Sheppard J in the Sabemo case to facts such as those of the present case, where, however much the parties expect a contract between them to materialise, both enter negotiations expressly (whether by use of the words 'subject to contract' or otherwise) on terms that each party is free to withdraw from the negotiations at any time. Each party to such negotiations must be taken to know (as in my judgment Regalian did in the present case) that pending the conclusion of a binding contract any cost incurred by him in preparation for the intended contract will be incurred at his own risk in the sense that he will have no recompense for those costs if no contract results. 251 In Fensom v Cootamundra Racecourse Reserve Trust [2000] NSWSC 1072 Bryson J held that Sabemo did not apply to the particular facts of that case and said: 88. The basis [of the] decision in Sabemo was narrow and closely related to the facts of the case, and the determining factor was unlike anything in the present case. Sabemo was decided before the establishment of the principle of Restitution in Pavey & Matthews . Mason and Carter commented on Sabemo at para [1035], where other considerations of the decision are also referred to. In a developing area of the law, where Pavey & Matthews is a very significant later turning point, Sabemo's continuing significance is its significance for factual situations which present close analogies with its facts. 252 Counsel for the plaintiff referred in passing to the decision in Countrywide Communications Ltd v ICL Pathway Ltd [2000] CLC 324 but only for the purpose of the trial judge's analysis of the quantum meruit claim and in particular his reference to Denning LJ's findings in Brewer Street Investments Ltd v Barclays Woollen Co Ltd [1954] 1 QB 428 said by the trial judge to support the view that a claim "in restitution can be brought where the 'benefit' or 'enrichment' consists of the performance of work at the defendant's request which, as it turns out, has not provided any actual benefit to the defendant at all". In Brewer Street Denning LJ held (at 437) that work done for the prospective tenants was of no benefit to the landlords and the prospective tenants were ordered to pay the costs thrown away by reason of that work. However Denning LJ also said that if the work was shown to have been of benefit to the landlord then a credit would have to be given in the assessment of the quantum the tenant was required to pay. 253 In E K Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172 the plaintiff made a claim for equitable compensation for expenses incurred in engaging consultants and carrying out work on the basis of its assumption that the defendant would enter into a lease of the premises in relation to which the work had been carried out. It claimed that the defendant failed to inform the plaintiff that its assumption was incorrect and subsequently refused to enter into the lease. The plaintiff claimed that it suffered detriment in the form of the expenditure and claimed compensation to remedy the detriment. The plaintiff's claim was expanded to include the claim that the defendant knew the plaintiff was doing the work and incurring expenses on the assumption that a lease would be entered into and in fact encouraged the plaintiff to do the work and incur the expenses. The plaintiff's claim was put on the basis of equitable estoppel, where the appropriate remedy was not to compel the defendant to make good the assumption, but to compensate the plaintiff for the detriment by a monetary award. The defendant denied that its conduct was unconscientious but did not take issue with the proposition that compensation would satisfy the equity necessary to avoid unconscientious conduct [211-212]. The trial judge, White J, noted [at 214] that the plaintiff did not plead or argue a quantum meruit claim and did not place any reliance on cases such as Sabemo and/or Brenner. Having found academic and text writers' support for the consideration of a restitution claim according to the principles of estoppel his Honour decided to consider the plaintiff's claim pursuant to such approach [218]. After an exhaustive analysis of the relevant cases his Honour said: 260 In the present case, E K Nominees must be taken to have accepted the risk that notwithstanding all of the work which it had done at Woolworths' request, Woolworths might not proceed to enter into an agreement for lease because of delays in satisfying the Council's requirements, or if Woolworths insisted on including a term in the agreement for lease with which E K Nominees could not agree. However, to adopt the language of Sheppard J in Sabemo (at 902-903), E K Nominees did not accept the risk of Woolworths abandoning the project " not for any reason associated with bona fide disagreement concerning the terms of the contract to be entered into, but for reasons which, however valid, pertain[ed] only to [its] own position ." Particularly is that so for the period of twelve months following Woolworths board's approval, during which E K Nominees was both obliged to commit itself to the project, or face a claim from Woolworths for its costs and loss of profit, and entitled to rely on the board approval remaining operative. 261 In other words, the recognition by one party that the other party is not legally bound by a contract, or is not legally bound to enter into a contract, (if there is a difference), cannot in all circumstances mean that it is not unconscionable for the opposite party to withdraw if it has induced the first party to act to its detriment in the belief that a contract will eventuate. Whether the first party is relying on the other's contractual intentions, whether it is doing so reasonably, and whether it has accepted the risk of the allegedly estopped party not proceeding in any circumstance, are questions of fact depending upon particular circumstances. 262 This is only to apply to this context what was said by Deane J in The Commonwealth v Verwayen (at 445) that: "Ultimately, however, the question whether departure from the assumption would be unconscionable must be resolved not by reference to some preconceived formula framed to serve as a universal yardstick but by reference to all the circumstances of the case, including the reasonableness of the conduct of the other party in acting upon the assumption and the nature and extent of the detriment which he would sustain by acting upon the assumption if departure from the assumed state of affairs were permitted." 254 White J held that the plaintiff in that case was entitled to equitable compensation. 255 The claim made by the plaintiff for its expenses is on a quantum meruit basis (although not pleaded) or for restitution or compensation on the basis of equitable estoppel. In final written and oral submissions, Mr McGrath submitted that the plaintiff should not be allowed to make a quantum meruit claim because such a claim was "not pleaded". I indicated to Mr McGrath in final submissions that although the particular claim was not expressly pleaded, it appeared to me that the plaintiff had made such a claim in seeking reimbursement for reasonable expenses incurred, and that it did not appear to me that there was any surprise or prejudice to the defendants. In those circumstances, Mr McGrath then made submissions in relation to the quantum meruit claim and the plaintiff's reliance on Sabemo. Mr Cobden adopted Mr McGrath's submissions and made the additional submission that if I were inclined to the view that the present case was not distinguishable from Sabemo then I should not follow it because it was "wrong". This latter submission was put formally without any elucidation. 256 Mr McGrath submitted that Sabemo is distinguishable because in that case Sheppard J found that there was a joint assumption that a contract would be entered into and in this case there was no such joint assumption. I disagree. Although I have held that a binding contract did not materialise for the reasons given above the parties' conduct supports a finding that there was a joint assumption that a binding contract would be entered into. That conduct included the preparation of the promotional material; the approval process for that material and its ultimate approval in late January 2004; the planning and preparation of the launch; the synchronising of the travel plans for Dame Kiri and Mr Farnham; the planning for and attendance at the meetings in Auckland to discuss the launch and the musical programme (although this latter aspect was not able to be concluded); the request for and agreement to expenditure on air fares and helicopter flights for Dame Kiri; awareness of the plaintiff's expenditure on many aspects of these plans; and continuation of the defendants' involvement whilst the draft Mittane Letter was still the subject of exchange of comments and negotiations. The letter of intent when combined with these other matters also has relevance. I am of the view that there was a joint assumption that a contract would be entered into and in this regard the present case is not distinguishable from Sabemo. 257 Mr McGrath also sought to distinguish Sabemo on the basis that much of the work carried out had been at the express request of the defendant Council. It is true that Mittane, through Mr Grace, did not expressly request the artwork and promotional material to be produced however, in my view, the express approval by NGM/Mr Grace was an express approval on Mittane's behalf, and is not relevantly distinguishable from the requests made in Sabemo for the preparation of the schemes. The other expenditure on the meetings in Auckland and the flights were at the express request of Mittane through Mr Grace. 258 Mr McGrath also sought to distinguish Sabemo on the basis that the defendant Council had deliberately decided that it was going to drop the negotiations, for reasons which had absolutely nothing to do with the plaintiff in that case. Mr McGrath submitted that in the present case, the negotiations were dropped because the terms of the Contract were not agreed to. As I have said above, Mittane ceased negotiations because Dame Kiri did not want to perform at the Concerts. Mittane opportunistically suggested that the plaintiff had refused to agree to the terms of the Contract. As I have found above, that was not true. The plaintiff had put a counter-proposal, but had not rejected outright the request for an irrevocable letter of credit. Although the underlying reasons why Dame Kiri did not want to perform at the Concerts has not been disclosed it would be a little absurd to suggest that the lack of a musical programme was a proper basis for withdrawal when Dame Kiri and Mr Farnham were yet to meet to discuss that musical programme. In any event I am satisfied that the absence of the musical programme was not the "reason" Dame Kiri did not want to perform at the Concerts. 259 It is not possible or really necessary to analyse the complexity of Dame Kiri's response that ultimately manifested as resentment at Mr Farnham's failure to attend the Auckland meeting. Initially it may have been uncomplicated disappointment that she was unable to meet with her co-performer for whom she obviously had some respect, otherwise she would not have invited him to sing with her at her own Foundation's Gala Concert. I accept that there was some concern with Mr Farnham's style but I have no doubt that Dame Kiri saw some benefit in performing with Mr Farnham, otherwise she would not have progressed the matter so far, particularly after Mr Grace's warning in relation to the plaintiff's incursion of expenditure. I am satisfied that the subsequent development of her suspicions about whether Mr Farnham was really unable to fly in a light aircraft in the stormy weather resulted in her serious resentment at his absence. I am satisfied that Mr Farnham's absence from the Auckland meeting was the major factor in Dame Kiri's decision to change her mind about her willingness to attend the launch and perform at the Concerts. This had nothing to do with the plaintiff. I am satisfied that Mittane's decision to withdraw from the negotiations had nothing to do with the plaintiff. In this regard the present case is not distinguishable from Sabemo. 260 I respectfully adopt Bryson J's, as his Honour then was, observation in Fansom [at 88] in relation to the continuing significance of Sabemo. This case falls into the category of case identified by Bryson J in that it presents "close analogies" with the facts in Sabemo. 261 Although generalisations are usually unhelpful, it seems to me to be reasonable to observe from the evidence in the present case that promoters in the entertainment industry undertake work that may be described as a "gamble", in the hope that they may secure a contract for the promotion of a concert or some other form of production. The costs of that work are part of the general overheads of the promoter's business and such costs are at the promoter's risk: William Lacey (Hounslow) Ltd v Davis [1957] 1 WLR 932 per Barry J at 934. That work is done gratuitously, albeit that a resulting contract may serve to recoup that outlay, depending upon the success of the production. 262 In this case, the plaintiff expended its own money in putting itself into a position to reach agreement with Mittane to procure the services of Dame Kiri. That expenditure is part of the plaintiff's overheads. The Mittane Letter was the basis of further negotiation, the details of which I have set out earlier in relation to the contract claim. During the period of further negotiations, the conduct referred to above occurred in addition to which Mr Grace (and Mr Gleeson at the request of Mr Grace) reviewed the budgets to the point in late January 2004 when Mr Grace expressed the view that he was "much happier" with the budget. These were all matters upon which the plaintiff relied in claiming that it had assumed that a contract would be entered into, albeit that it expressed that claim as one in which it assumed that Dame Kiri would perform at the Concerts. I am of the view these matters provided a reasonable basis for the plaintiff to assume that Mittane would enter into a contract notwithstanding negotiations were still on foot. 263 In large scale and complex commercial endeavours, a description applicable to the subject Concerts (tr 62, 161), the process of settling the terms of the contract may "lag behind performance" (to use the language of Mason and Carter at [1033]). The preparation for the sponsorship launch for the Concerts was work beneficial to the whole project. It was a means of raising not only financial investment for the project but also awareness of the planned performance by these "Two Great Voices" (the evidence was that Mr Farnham was known as "the Voice" and the promotional material built on that reputation for this description for Dame Kiri and Mr Farnham). It would also give both performing artists further public recognition in a new environment of the combination of opera and popular music. Tentative dates for the launch were proposed on 5 December 2003 prior to the delivery of the Mittane Letter to the plaintiff and on 22 January 2004 the parties settled upon 9 March 2004 as the date for the launch. At this stage the parties were still in the process of exchanging "comments" on the Mittane Letter, thus the contractual process was 'lagging behind' these detailed preparations, albeit that the letter of intent, admittedly "provisional", was in place. 264 The plaintiff had to take steps to prepare for the launch which included; securing the venue, preparing the artwork and promotional material; targeting the sponsors; liaising with television producers to interest them in attending the launch and/or televising the Concerts (tr 202, 232); sending the promotional material to the targeted group of attendees at the launch; organising the catering; organising travel and accommodation for Dame Kiri and her entourage; and numerous other commercially necessary steps to ensure the success of the launch. The suggestion to combine Dame Kiri with another performer had come from Dame Kiri's New Zealand agent Mr Gleeson in July 2003. He had suggested to the plaintiff that it should give "serious" consideration to a "support artist" and "preferably an Australian male" to "increase the local interest". It is clear that, at least at this time, there was a perceived need to increase the interest in Australia in attending Dame Kiri's performances. This perception was probably caused by the lack of commercial success of Dame Kiri's concerts in Australia in 2003. The launch was a step in the process of building that "local interest". 265 Mr Grace's conversation with Dame Kiri in Norwich on 9 December 2003 was just prior to Mr Grace sending the Mittane Letter to the plaintiff. In her second statement dated 25 January 2007, Dame Kiri denied that the conversation occurred (par 25(f)). Mr Evans cross-examined Dame Kiri in respect of her understanding of any expenditure that had been incurred as follows (tr 342-343): Q. At any time after 29 February, did you consider, in view of what had happened since July of 2003, that Leading Edge Events might have spent a considerable amount of money in progressing the concerts to the stage that they were at at the beginning of March 2004? A. I was not aware of any expenditure. Q. Well, did you consider whether there might be? A. Unless I'm told, then I would consider that there might be. I was never told. Q. Well, did you ask Nick Grace if there had been any expenditure? A. No. Q. I suggest that he told you, prior to 1 March 2004, that Frank Williams had spent a considerable amount of money in advancing the matter to that point? A. If I remember correctly, he said something to the effect of "Frank may be incurring costs". Q. Well, did you think that that might be right? A. It could be. Q. Did you consider whether it would be appropriate to ask someone what costs had been incurred when you decided not to continue? A. No. … Q. If your inquiries had told you that Leading Edge Events had spent well over $100,000 prior to 30 March - sorry, prior to 1 March 2004 - do you follow? It is a hypothetical? A. I would like you to keep repeating that please because you're-- Q. Yes. If you had made inquiries as to what expenses had been incurred-- A. Uh-huh. Q. --and you were told that the expenses were in excess of $100,000, would you have offered to compensate Leading Edge Events for their outlay? A. If someone else is spending my money, then I would rather expect that they would have a letter to say that they were allowed to spend it, but if Mr Williams wants to spend his own money, I don't think I have control over it. If he was spending my money, I would ask him to please let me know what was happening. So, as I had no idea, then how would I know how much he was spending. 266 In her witness statement Dame Kiri denied that Mr Grace had informed her that Frank was "probably starting to incur costs". However, as can be seen from the above evidence, Dame Kiri claimed to remember that Mr Grace had said that Mr Williams "may be incurring costs". That was the first time that such a suggestion was made by Dame Kiri, notwithstanding that she had addressed the conversation in her witness statement. I do not accept Dame Kiri's denial of the conversation with Mr Grace. I accept that Mr Grace did have a conversation with Dame Kiri on 9 December 2003, in which he suggested to her that if she wished to stop negotiations she should do so at that point, because Mr Williams was "probably starting to incur costs". I accept that Mr Grace particularised those costs as being "maybe around $100,000, maybe less". I also accept that Dame Kiri said in the face of that warning "let's see how far you can go with it". I have no doubt that at least from 9 December 2003 Dame Kiri well knew that the plaintiff was incurring costs in the planning of the proposed Concerts and that such costs could be around the $100,000 figure. Certainly Mittane was well aware of the expenditure having regard to the fact that Mr Grace and NGM were well aware of the expenditure. After the cross claim was abandoned there was no issue that Mr Grace and/or NGM were acting outside their authority and it is clear that Mr Grace and NGM held themselves out to the plaintiff as having authority to deal with the plaintiff on Mittane's behalf, except when Mr Grace expressly stated otherwise. 267 Dame Kiri has chosen to set up a contractual structure with Mittane, NGM, Mr Grace and Mr Gleeson that enables her to distance herself from the financial aspects of the provision of her services should she wish to do so. However I have no doubt that with all her experience over the years as a performing artist in the commercial world she is a reasonably astute businesswoman. A small but instructive example of Dame Kiri's approach in this regard was her requirement that Mr Williams and Ms Newbury could only have tickets to the Gala Concert in Auckland if they made a donation to her Foundation. I also have no doubt that when Dame Kiri saw the promotional material in the form of the boxed champagne glass she knew that the plaintiff had incurred costs in its production. In those circumstances I find Dame Kiri's evidence that if someone was going to spend her money then they should have a letter saying they were justified in doing so rather unhelpful. This is particularly so when Dame Kiri obviously demanded to be flown to the Bay of Islands in a helicopter and I have no doubt that she knew that the plaintiff was paying for that trip. 268 There was a joint assumption that a contract would be concluded however there was also an understanding that until a contract was signed one party may withdraw but not for any reason pertaining to its own position. The facts of this case are different to those in Regalian. In this case when the plaintiff was in the earlier stages of planning the promotional material Mr Williams wanted to utilise the Harley Davidson motorcycle photograph to promote the Concerts. He raised this idea with Mr Grace. Mr Grace advised Mr Williams that he was not sure if Dame Kiri would "allow it" but that the plaintiff could proceed with it to the "mock up" stage on the basis that the plaintiff understood "it may be rejected". This was an indication that the expenses the plaintiff would incur if it proceeded with those "mock ups" would be at its own risk. No such warning was ever given to the plaintiff in respect of any other aspect of the promotional material or other services its provided of the kind referred to above. On the contrary, they were services that were not usually provided gratuitously and in any event were either expressly approved or requested by Mittane through Mr Grace/NGM. 269 I should now consider the question of "benefit" to Mittane from the plaintiff's services. I am satisfied that if there was benefit to Dame Kiri as Mittane's employee then Mittane was the recipient of that benefit. There is no doubt that the services provided by the plaintiff were beneficial for the project as a whole for the reasons I have given in relation to the launch. If Dame Kiri had not changed her mind about going to the launch and performing at the Concerts, the services provided by the plaintiff would have done what Dame Kiri's own agent, Mr Gleeson, had suggested should be done, that is, increased the local, and perhaps wider, interest in Dame Kiri's performances. On the basis that benefit should be ascertained for the services taking into account the fact that the Concerts did not go ahead, I agree with Byrne J's observation that "benefit" should be seen from the perspective of the recipient: Brenner at 258. The mere fact that services are expressly approved or requested by the person to be charged may in some cases evidence a perceived benefit in the person who made the request. I am of the view that in this case the express approval of the material and the requests to attend the meeting in Auckland and to fund air tickets and the helicopter flight fall into that category. Additionally there is evidence that the 'end product' of the plaintiff's services were used. I am of the view that Dame Kiri was extremely impressed by the artwork and promotional material, notwithstanding that she restricted her admission in evidence to having said that it was "nice". Dame Kiri displayed it to her guests at her 60th birthday celebration and that suggests that she thought it was a little more than "nice". Mr Gleeson informed Mr Williams that he had observed Dame Kiri showing it off to her guests and that she appeared quite "happy" with the material. Although it may be "idiosyncratic", to use Byrne J's description in Brenner, I am satisfied that the plaintiff's services in this regard were of some "benefit" to Dame Kiri and although it was at a "private" party, the showing off of the material was beneficial to Dame Kiri and Mittane in allowing Dame Kiri's profile to expand into a different genre in association with Mr Farnham. It also obviously gave Dame Kiri enjoyment to be able to show the materials off. Although this may present as a lesser benefit than that which was perceived in Brenner, it does not mean it fails to satisfy the test. The assessment of the perception of the recipient will mean that there will be different levels of benefit in different cases. 270 Mittane/Mr Grace/NGM could have rejected these services in January 2004, at the time the plaintiff was seeking approval to proceed. That did not happen. There is no doubt that the trip in the helicopter was to Dame Kiri's benefit in being conveyed in a comfortable and expedient manner to her home in the Bay of Islands. The plaintiff attended the planning meetings for the launch in Auckland at the express request of the defendants. 271 It seems to me that there was an expectation that the plaintiff would be paid for its services in this regard, evidenced in part by Mr Grace's warning to Mr Williams about the risk in using the motorcycle images and the lack of such warning in relation to the services now in question. It is also evidenced in part by the warning to Dame Kiri on 9 December 2003 that the plaintiff was probably incurring costs. I am satisfied that the plaintiff is entitled on a quantum meruit basis to be paid a reasonable amount for the work that I will detail below by reference to the Schedule of Wasted Expenditure (Ex AA). 272 I should turn now to the defendants' claim that the plaintiff did not satisfy the prerequisites for equitable estoppel. The plaintiff's estoppel case was limited to seeking recovery of the wasted expenditure. The defendant relied upon Brennan J's judgment in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 to submit that the plaintiff had not satisfied the six elements identified as necessary to establish an equitable estoppel. Brennan J said at 428-9: In my opinion, to establish an equitable estoppel, it is necessary for a plaintiff to prove that (1) the plaintiff assumed that a particular legal relationship then existed between the plaintiff and the defendant or expected that a particular legal relationship would exist between them and, in the latter case, that the defendant would not be free to withdraw from the expected legal relationship; (2) the defendant has induced the plaintiff to adopt that assumption or expectation; (3) the plaintiff acts or abstains from acting in reliance on the assumption or expectation; (4) the defendant knew or intended him to do so; (5) the plaintiff's action or inaction will occasion detriment if the assumption or expectation is not fulfilled; and (6) the defendant has failed to act to avoid that detriment whether by fulfilling the assumption or expectation or otherwise. For the purposes of the second element, a defendant who has not actively induced the plaintiff to adopt an assumption or expectation will nevertheless be held to have done so if the assumption or expectation can be fulfilled only by a transfer of the defendant's property, a diminution of his rights or an increase in his obligations and he, knowing that the plaintiff's reliance on the assumption may cause detriment to the plaintiff if it is not fulfilled, fails to deny to the plaintiff the correctness of the assumption or expectation on which the plaintiff is conducting his affairs. 273 As to the first element, I have found that there was an expectation that a contract would be entered into, however the plaintiff is not able to establish an expectation that the defendant would not be free to withdraw from the expected legal relationship. The parties were still in negotiations and either party could have withdrawn. The qualification to that position is where there has been expenditure and a Sabemo type of claim is made the expectation is that party A would not withdraw for reasons that have nothing to do with party B. However Mittane could have withdrawn for other reasons and thus the second limb of the expectation referred to in the first element referred to by Brennan J has not been established. That really puts an end to this alternative aspect of the plaintiff's claim for its expenses. However I will address the other elements in deference to the detailed submissions put by counsel for Dame Kiri and Mittane. 274 As to the second element, I am satisfied that the conduct referred to above including: the approval of the promotional materials and the expenditure thereon; the express requests to attend the meeting in Auckland; the express requests for expenditure to fund Dame Kiri's travel; together with the letter of intent induced the plaintiff into the expectation that a contract would materialise. 275 Mr Williams regarded Dame Kiri as a "friend". Dame Kiri would not concede that her relationship with Mr Williams could appropriately be described as a friendship. Whether one describes another person as an acquaintance, a friend or a business associate can sometimes be a rather complex excuse. Mr Williams' wife, Melissa Geralyn Williams, gave evidence of having a "few drinks" with Dame Kiri after her performance at the Mitchelton Winery in 1990. She recalled a holiday in the early 1990s when Dame Kiri and Mr Williams played golf together and Dame Kiri visited their home. Mrs Williams recalled a lengthy discussion with Dame Kiri about the planned refurbishment of their home. On this occasion Mrs Williams observed Dame Kiri rocking her son, Damian, to sleep whilst she sang to him. Mrs Williams recalled other instances of being present in Dame Kiri's company and also receiving an invitation to her 50th birthday party in New Zealand in about 1994. The last contact Mrs Williams could recall with Dame Kiri was in 1999 when she and her husband had a drink with her after her performance at a concert in Sydney. Mrs Williams also claimed that in the 1990s she and her husband had dinners with Dame Kiri and her then husband. Although Dame Kiri was not able to recall a number of these instances I accept that they occurred. It may be that Dame Kiri's approach to promoters has changed over the years and it is clear that she prefers to have Mr Grace/NGM and Mittane negotiate on her behalf, however, in this instance, it is clear that she was willing at least on some occasions to deal directly with Mr Williams. In particular she was willing to ring him directly, albeit in Mr Grace's presence, on 9 December 2003 to obtain some reassurance. Although they are now opposing litigants, it seems to me that it was probably reasonable for Mr Williams to describe the relationship with Dame Kiri, at least in the 1990s as friendship. 276 It was submitted that in relation to the third element identified by Brennan J the plaintiff did not act on the expectation so induced but rather on the "friendship" factor. It was submitted that Mr Williams had assumed that the Concerts would go ahead because he had dealt with Dame Kiri before and he believed that his "friendship" with her played an important part in that understanding. It is true that Mr Williams, very unwisely in my view, did think that his relationship with Dame Kiri would assist the plaintiff but that was not the only factor at play in this rather complicated setting. As I have said above I am satisfied for the reasons stated above, it was reasonable for the plaintiff to assume that Mittane would not cease negotiations on a basis that had nothing to do with the plaintiff. Although the friendship factor may have played a part in Mr Williams initial approaches to this project I am satisfied that the plaintiff acted in reliance upon the expectation that a contract would be entered into. 277 As to the fourth element, I have no doubt that all defendants knew that the plaintiff was incurring expenditure and made express requests for it do so. As for the fifth element, it is clear to me that on the assumption that a contract would be concluded the plaintiff altered its position by incurring expenditure in the absence of a written contract. Things were moving at a pace in February 2004 which required work to be done to prepare for the launch, notwithstanding that the parties had agreed to put to one side the question of an essential feature of the contract, the irrevocable letter of credit, until Mr Grace could deal directly with Mittane. 278 As to the final element I am not satisfied that the plaintiff failed to avoid its detriment. Mr Grace had to communicate with Mittane and was not in a position to do so prior to the time that the plaintiff had to incur further expenditure for the preparation of the launch. It was suggested that the plaintiff could have avoided its detriment if it had attended to the finalisation of the contract prior to incurring the expenditure. There are a number of factors that intervened preventing that outcome. They included the Christmas holidays, Mr Farnham and Mr Wheatley going on holidays, Mr Grace failing to communicate with Dame Kiri in the first two weeks of February because he wanted to wait until he was with her later in the month and the pressure of putting the launch together at a time to suit Dame Kiri's commitments in the United Kingdom. As I have said above the plaintiff's alternative claim in estoppel for its expenses is not made out. 279 The next question is the amount to be awarded on the quantum meruit claim. The plaintiff relied upon a schedule entitled "wasted expenditure". It is clear beyond any doubt that some of the claims made in that schedule are unsustainable and are really business overheads of a promoter pursuing the prospect of securing a production. I am satisfied however that the items of expenditure for the preparation of the promotional material for sponsorship is recoverable together with costs associated with delivering that material to prospective sponsors and for the time of the plaintiff's officers and employees in dealing with the planning for and ultimate cancellation of the launch. I am satisfied that the plaintiff is entitled to the costs for the concept development and staff wages in respect of that material and launch. That would also include merchandising materials such as t-shirts. The plaintiff is also entitled to recover the cost of the helicopter transfer on 29 February 2004 and the travel and accommodation costs incurred for both Mr Williams and Ms Newbury in attending the Auckland meetings. 280 The plaintiff is entitled to recover the amounts of the "Spark" invoices in respect of the launch. They amount to $102,364.27. The plaintiff is also entitled to recover the amounts for the staff wages between 5 February and 30 April 2004. In those circumstances the plaintiff is entitled to an amount of $13, 668.71 (that calculation halves the staff wages for Tyrell Russell in Ex AA). The plaintiff is also entitled to recover the cost of copyrighting, work for the invitations and merchandising but not for the purchase of Quickbooks. The plaintiff no longer claims any amount for the work on the motorcycle portrait. The total in this regard in Ex AA is $2,810.28. The plaintiff is entitled to recover the bookkeeping cost in March and April 2004 for $231 and the cost of couriers in the amount of $2,424.36. The plaintiff is also entitled to recover cost of the helicopter transfer in New Zealand for Dame Kiri in the amount of $3,212.01. The plaintiff is also entitled to recover the amount expended in arranging for Dame Kiri's alternative ticket to London to the extent that such refund did not reimburse it in the amount of $1,170. 281 The plaintiff claimed $3,568.50 for the purchase of lists of potential sponsors. That does not seem to me to be a cost that ought reasonably be paid by Mittane. Although there was no expert evidence in relation to what one may expect of a promoter in gathering together suitable sponsors, it does not seem to me that in this instance Mittane should have to pay for the plaintiff purchasing those lists. There is also the capacity for the plaintiff to utilise such lists for prospective clients other than Mittane. Accordingly, I do not intend to allow for the purchase of those lists. 282 The plaintiff is entitled to recover costs of Mr Williams' and Ms Newbury's trip to New Zealand which includes airfares, accommodation, parking and taxi transfers totalling $2,182.58. 283 I am satisfied that in the circumstances of the paucity of evidence in relation to the other expenses in the Schedule (Ex AA), I should not allow any other expenses. The total amount recoverable by the plaintiff is $128,063.21. Misleading or deceptive conduct 284 The plaintiff made a number of claims of misleading or deceptive conduct. It claimed that Dame Kiri had breached s 42 of the FTA; that NGM and Mittane breached s 52 of the TPA; and that Mr Grace and Dame Kiri were accessorily liable under s 75B of the TPA in respect of the alleged breaches of s 52 of the TPA by NGM and Mittane. 285 The Commercial List Statement does not enable the ascertainment with any precision of the true basis upon which it is claimed the representation alleged to have been made by Dame Kiri arose or was made. The Commercial List Statement alleges that Dame Kiri represented to the plaintiff that "she would perform at the Concerts". The particulars to that claim by reference to earlier parts of the 'pleading' rely upon the broad claims of telephone calls, emails and/or letters over an eight month period without any particular detail. The schedule (Ex Z) was equally unhelpful. It is apparent that the plaintiff claims that from the quagmire of emails, letters and conversations, one could extract the representation that Dame Kiri "would perform at the Concerts". Even in final address, counsel for the plaintiff did not point to any particular document or conversation that amounts to such a representation. Certainly there were emails and conversations in which the parties discussed the venues, the fee, the launch, the accommodation and the various arrangement for air tickets and helicopter trips but the claim that Dame Kiri "would perform", if made, was always subject to the finalisation of the contract between Mittane and the plaintiff. 286 The plaintiff also claimed that Dame Kiri was under a duty to inform it that she would not be performing at the Concerts and that her silence until after the Auckland meeting was misleading or deceptive. In this regard, the plaintiff relied upon an email from Mr Gleeson to Mr Grace on 19 February 2004 referred to earlier in this judgment which included the statement, "For your ears only – Kiri is still making negative sounds about the concerts with Farnham". The plaintiff claims that as at 19 February 2004, Dame Kiri had obviously been having discussions with Mr Gleeson in which she had expressed a negative attitude to performing at the Concerts and that she had a duty to advise the plaintiff that she was not going to perform at the Concerts. 287 Dame Kiri was far from silent about her concerns with Mr Farnham's style. As I have already said she raised them directly with Mr Williams on 9 December 2003 when she telephoned him in Mr Grace's presence. Mr Williams knew from that date, if not earlier, that Dame Kiri wanted to meet with Mr Farnham and establish whether a rapport was possible and to plan the musical programme. It is obvious that two highly successful performing artists would need careful management so that their respective needs were met. Mr Williams knew that there was a possibility that Dame Kiri and Mr Farnham may not have the necessary rapport to assuage Dame Kiri's concerns. 288 The plaintiff relied upon the same conduct referred to in relation to the claim for expenses to allege that Dame Kiri breached s 42 of the FTA. It is important to distinguish this claim from the claim that it was reasonable to assume that a contract would be entered into. A major problem for the plaintiff, even if the representation had been made, is that I am not satisfied that it can establish the requisite reliance upon such a representation for the purposes of the breach of s 42 of the FTA. The plaintiff requested that Mittane and/or Mr Grace/NGM have Dame Kiri confirm that she would be bound to perform at the Concerts by signing the agreement between Mittane and the plaintiff. When the plaintiff was advised that Mittane would not allow Dame Kiri to sign the agreement, it then requested that Dame Kiri sign a "side letter". Far from relying upon any alleged representation it seems to me that the plaintiff was concerned that it did not have a promise that Dame Kiri would perform at the Concerts. 289 I am not satisfied that the plaintiff has established that Dame Kiri has breached s 42 of the FTA. 290 The claim against Mittane for misleading or deceptive conduct seems to me to be quite hopeless. The claim as pleaded is that by sending the Contract (the Mittane Letter) on 16 December 2003 Mittane represented that it "could, and would, procure" that Dame Kiri "would perform at the Concerts". As I have already said, this was a draft contract that was subject to further negotiations. The mere sending of the document to the plaintiff did not amount to such a representation. 291 There is also a claim against Mittane that it had a duty to inform the plaintiff if Dame Kiri "was not to perform at the Concerts". It is alleged that its "silence" following the representation was misleading or deceptive. Even if the representation had been made, by sending the draft contract, Mittane did not remain silent. When it was instructed that Dame Kiri did not wish to perform at the Concerts it ceased negotiations. It is true that Mittane did not expressly state that Dame Kiri did not want to perform at the Concerts, however the cessation of negotiations meant that she would not do so. The plaintiff's claims that Mittane was in breach of s 52 of the TPA fails. It follows that the plaintiff's claim against Dame Kiri for accessorial liability must also fail. 292 The plaintiff claims that NGM breached s 52 of the TPA by representing to the plaintiff that Dame Kiri "would perform at the Concerts". Mr Cobden submitted that if there is a representation at all to be extracted from the "great morass" of emails and conversations as pleaded over the eight month period, then it could only be along the lines of a representation that "if agreement on all other issues is reached, these are suitable dates, and a suitable fee, for Dame Kiri to perform". It was submitted that such a representation was never made untrue until the withdrawal from negotiations. I agree with these submissions. 293 The plaintiff claimed that NGM had a duty to advise the plaintiff that Dame Kiri was making "negative sounds" about the Concerts and that NGM's silence in this regard was misleading or deceptive. Mr Grace was cross-examined about the email from Mr Gleeson and agreed that he had not disclosed to the plaintiff that Dame Kiri had apparently discussed her negativity about the Concerts with Mr Gleeson. He gave the following evidence in cross-examination (tr 402): Q. Was that because it was for your ears only that you didn't inform? A. I think it is because as Kiri's manager I had heard her concerns because I was with her in Norwich and I was one thousand miles away and Paul Gleeson obviously was hearing the same concerns and I felt it was best that as Kiri was my, I didn't want to discuss things with Kiri over the phone so I thought I would wait and talk to her about her concerns when I got to New Zealand. 294 Even if NGM had a duty to inform the plaintiff that Dame Kiri would not perform at the Concerts, that point had not been reached at the time that Mr Gleeson informed Mr Grace of Dame Kiri's "negative sounds". It must be remembered that this was only six days after Dame Kiri had penned her fax to Mr Grace requesting information about the launch. It is clear that some of her "concerns" had probably been caused by the lack of communication with Mr Grace in the first two weeks of February. The plaintiff has not established that Dame Kiri had decided not to perform at the Concerts prior to 23 March 2004. 295 The plaintiff relied upon NGM/Mr Grace's approval of the artwork for the launch as conduct amounting to a representation that Dame Kiri "would perform" at the Concerts. The plaintiff assumed that a contract would be entered into with Mittane and I have found that this assumption was reasonable. That finding does not amount to a finding that NGM/Mr Grace represented that Dame Kiri "would perform" at the Concerts. There is a distinction between those two positions. Even if the approval of the artwork were to amount to such a representation the plaintiff has the difficulty that it did not rely upon this representation, rather it wanted the side letter so that it did have representation or promise that Dame Kiri would perform at the Concerts. 296 The plaintiff's claim against NGM in respect of a breach of s 52 of the TPA fails. Accordingly the plaintiffs' case against Mr Grace for accessorial liability pursuant to s 75B of the TPA fails. Conclusion 297 The plaintiff has failed to establish: (1) the claim against Mittane for breach of contract; (2) the claim against Dame Kiri for breach of collateral warranty; (3) the claim against Dame Kiri for breach of s 42 of the Fair Trading Act; (4) the claims against NGM and Mittane for breaches of s 52 of the Trade Practices Act; and (5) the claims against Dame Kiri and Mr Grace for accessorial liability under s 75B of the Trade Practices Act. All of those claims will be dismissed. The plaintiff has succeeded in establishing an entitlement to recover from Mittane its reasonable costs in the amount of $128,063.21. Before entering judgment in the plaintiff's favour in respect of that claim I will hear submissions on the award of interest. 298 The parties are to bring in short minutes of order together with an agreed order for costs. If the parties are unable to agree on a costs order I will hear argument when the matter is fixed for the filing of short minutes and submissions on interest. The parties should make contact with my Associate to re-list the proceedings for finalising these aspects of the matter. Such contact should be made by no later than 20 April 2007. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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