District Court New South Wales Medium Neutral Citation: Play MR Pty Ltd v Heard Marketing Pty Ltd [2017] NSWDC 311 Hearing dates: 27 – 28 July 2017; 11 August 2017; 28 September 2017 Date of orders: 09 November 2017 Decision date: 09 November 2017 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) Judgment for the plaintiff on the Statement of Claim and the Amended Cross-Claim. The Amended Cross-Claim is dismissed. (2) The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. (3) The parties have liberty to apply to vary order (2) above. (4) The parties are to bring in short minutes of order within 7 days setting out the damages to be awarded to the plaintiff calculated in accordance with these reasons including any claim for interest. (5) Exhibits to be returned after 28 days. Catchwords: Contract – whether handwritten notation part of terms of contract – whether breach of contract by defendant – whether breach of essential term - whether contract varied – whether contract affirmed – whether contract terminated by plaintiff – damages for breach Cases Cited: Burger King Corp v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187 Caringbah Investments Pty Ltd v Caringbah Business & Sports Club Ltd (In Liquidation) [2016] NSWCA 165 Cooper v Kinsella [2011] NSWCA 45 Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Galafassi v Kelly [2014] NSWCA 190 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 Hadley v Baxendale (1854) 156 ER 145 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) SR (NSW) 632 Vitol SA v Norelf Ltd (1996) 3 All ER 193 Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353 Category: Principal judgment Parties: Play MR Pty Ltd (Plaintiff) Heard Marketing Pty Ltd (Defendant) Representation: Counsel: M W E Maconachie (Plaintiff) E Chrysostomou (Defendant) Solicitors: Legal Vision Pty Ltd (Plaintiff) Reuben George Lawyers (Defendant) File Number(s): 2016/00220105 Judgment 1. These proceedings involve a claim by the plaintiff, Play MR Pty Ltd, for damages for alleged breach of a written contract said to have been entered into between the plaintiff and the defendant, Heard Marketing Pty Ltd, in January 2016 ("the Contract"). The Contract was entered into for the purpose of Heard Marketing developing a computer application which could be accessed by customers and manufacturers to assist in marketing and product development. 2. The defendant denies any liability for breach of the Contract and has, by way of Cross-Claim, itself sued the plaintiff for breach of the Contract in relation to allegedly outstanding contractual fees and has also sued for breach of a separate contract entered into in September 2015 for the provision of public relations and marketing services to the plaintiff. The plaintiff denies a breach of both the Contract and the September 2015 contract. The parties 1. The plaintiff, Play MR Pty Ltd ("Play" or "the plaintiff"), is a market research company established by Mr Chris Thomas in 2013 to deliver "creative" market research to clients in Australia and New Zealand. In 2015 Mr Thomas came up with the idea to develop a web-based market research platform application modelled as an "on-line community" in which dedicated consumer respondents could review the products of Play's clients, specifically in relation to consumer goods with a large turnover. The internet-based market research platform was later named "Shopper Social" and may be currently found on the internet. The aim of the Shopper Social project was to enable Play's research specialists to work on clients' requests to obtain insights into the reaction of the customers to products using the reviews obtained in relation to the products from the online community of users. Play aimed to provide clients with cost-effective, timely and easy to read reports in relation to the experience of the on-line community having access to the market research platform. 2. Mr Chris Thomas was the sole director at all relevant times of Play. He gave evidence that he was only prepared to spend the time and money developing the research platform application Shopper Social if at least one of his larger clients, being Nestlé Australia Ltd ("Nestlé") was prepared to commit to using it upon its launch. Play also had as a major client Arnott's Biscuits Ltd ("Arnott's"). Arnott's was also interested in the Shopper Social platform. 3. The defendant was a public relations and marketing company which provided marketing services to its clients including the preparation of computer/internet based applications and products. The issues 1. The issues which arise in the proceedings would appear to be as follows: 1. What are the terms of the Contract entered into by the parties in January 2016 in relation to the development of the Shopper Social platform? 2. Do any of the express terms of the Contract create: (a) timing obligations under the Contract being times for the completion of services to be provided by the defendant under the Contract?, (b) an obligation for the application to be built using the WordPress content management system? 3. Is the Contract clear on its face or is it ambiguous and, if the latter, does pre-contractual correspondence between the parties assist in relation to ascertaining the objective terms of the Contract? 4. Has there been a breach of the Contract by the defendant? 5. If there has been a breach of the Contract by the defendant, was the time for performance extended by the parties? 6. Did the plaintiff agree to the extension or did it affirm the Contract? 7. Did the plaintiff accept a repudiation by the defendant of the terms of the Contract and terminate the Contract? Were they entitled to terminate the Contract for the breach which occurred? 8. What damages, if any, is the plaintiff entitled to from the defendant? 9. Has the plaintiff breached a) the Contract by not paying fees due under the Contract; or b) the September 2015 Agreement for the provision of marketing services by the defendant? 10. If so, what damages, if any, is the defendant entitled to pursuant to its Cross-Claim? General principles of contractual construction 1. It is useful to set out applicable principles of contractual construction. 2. In Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7, the majority of the High Court said the following at paragraph [35]: "[35] Both Verve and the Sellers recognised that this court has reaffirmed the objective approach to be adopted in determining the rights and liabilities of parties to a contract. The meaning of the terms of a commercial contract is to be determined by what a reasonable businessperson would have understood those terms to mean. That approach is not unfamiliar. As reaffirmed, it will require consideration of the language used by the parties, the surrounding circumstances known to them and the commercial purpose or objects to be secured by the contract. Appreciation of the commercial purpose or objects is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". As Arden LJ observed in Re Golden Key Ltd, unless a contrary intention is indicated, a court is entitled to approach the task of giving a commercial contract a businesslike interpretation on the assumption "that the parties … intended to produce a commercial result". A commercial contract is to be construed so as to avoid it "making commercial nonsense or working commercial inconvenience" [emphasis added]. 1. In Mainteck Services Pty Ltd v Stein Heurtey SA [2014] NSWCA 184 Leeming JA (with whom Ward and Emmett JJA agreed) stated a number of important general principles relating to contractual construction at [73]-[85]. His Honour said as follows at paragraphs [80]-[84]: "[80] Mason J [in Codelfa at 352] was indicating that there are very real limits to the extent to which grammatical meaning can be displaced by contextual considerations. However, in order to determine whether more than one meaning is available, it may be necessary first to turn to the context. [81] Fourthly, what I have called "context" was formerly described as the "surrounding circumstances", and then, influenced by Lord Wilberforce in decisions such as Prenn v Simmonds [1971] 1 WLR 1381 at 1384 and Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989 at 997, as the "matrix of facts". See Byrnes v Kendle [2011] HCA 26; 243 CLR 253 at [98]–[100] (Heydon and Crennan JJ) and J Carter, The Construction of Commercial Contracts (Hart Publishing, 2013), pp 8–9. [82] Although Lord Hoffmann in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 All ER 98 at 114 referred to a "fundamental change" in the approach espoused by Lord Wilberforce, the "modern" contextual approach had nineteenth century precursors, at least in relation to commercial contracts. Without seeking to be exhaustive, the Earl of Selborne had deprecated and rejected the "extreme literalism" in the mercantile contract construed in McGowan v Baine [1891] AC 401 at 403 (contrast the (dissenting) speech of Lord Bramwell, who had required "necessity, or [something] approaching to it" in order to displace the "primary and natural meaning of the words": see at 409). To the same effect was Lord Herschell's rejection of a process of construction by reference to dictionary meaning, and insistence that contractual language must be "construed in a business fashion" and "interpreted in the way in which business men would interpret them" in Southland Frozen Meat and Produce Export Company Ltd v Nelson Brothers Ltd [1898] AC 442 at 444. The approach adopted by Lords Selborne and Herschell anticipated what was popularised by Lord Wilberforce in the following century. Professor Carter has examined the evolutionary process at pp 17–20 of his book referred to in the previous paragraph. [83] Fifthly, the approach endorsed in Woodside avoids the difficulty of identifying what is meant by "ambiguity", itself an ambiguous term, whose perception "differs from one judicial eye to the other": B & B Constructions (Aust) Pty Ltd v Brian A Cheeseman & Associates Pty Ltd (1994) 35 NSWLR 227 at 234. The various meanings of "ambiguity" in this context are described by M Walton, "Where now ambiguity?" (2011) 35 Aust Bar Rev 176 and D Wong and B Michael, "Western Export Services v Jireh International: Ambiguity as the gateway to surrounding circumstances?" (2012) 86 ALJ 57 at 67–69. [84] Sixthly, the approach to construction of written commercial contracts reflected in Woodside at [35] accords with what had been said in familiar passages in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22] (construction "requires consideration, not only of the text of the documents, but also the surrounding circumstances known to Pacific and BNP, and the purpose and object of the transaction"); Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165 at [40] ("The meaning of the terms … normally requires consideration not only of the text but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction"); and the endorsement in Wilkie v Gordian Runoff Ltd [2005] HCA 17; 221 CLR 522 at [15] of the proposition that "Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure". It means also that the Australian approach mirrors that adopted in England, New Zealand, Singapore and Hong Kong: Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38; [2009] 1 AC 1101; Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5 ; [2010] 2 NZLR 444; Zurich Insurance (Singapore) Pte Ltd v B-Gold Interior Design & Construction Pte Ltd [2008] SGCA 27; 3 SLR(R) 1029 (where the court's reasons delivered by V K Rajah JA for the court survey much of the English decisions and academic literature); Fully Profit (Asia) Ltd v Secretary for Justice [2013] HKCFA 40; 6 HKC 374." 1. In Caringbah Investments Pty Ltd v Caringbah Business & Sports Club Ltd (In Liquidation) [2016] NSWCA 165, Bathurst CJ (with whom McColl and Macfarlan JJA agreed) stated as follows at [93]: "[93] The relevant principles of construction are well established. In Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; 251 CLR 640, the plurality reaffirmed that the meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood them to mean. It requires consideration of the language used, the surrounding circumstances known to the parties and the commercial purposes or objects to be secured by the contract: at [35]; see also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 89 ALJR 990 at [46]–[52]." 1. In Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12 the majority stated as follows at paragraphs [16]–[17]: [16] It is well established that the terms of a commercial contract are to be understood objectively, by what a reasonable businessperson would have understood them to mean, rather than by reference to the subjectively stated intentions of the parties to the contract. In a practical sense, this requires that the reasonable businessperson be placed in the position of the parties. It is from that perspective that the court considers the circumstances surrounding the contract and the commercial purpose and objects to be achieved by it. [17] Clause 4 is to be construed by reference to the commercial purpose sought to be achieved by the terms of the lease. It follows, as was pointed out in the joint judgment in Electricity Generation Corporation v Woodside Energy Ltd, that the court is entitled to approach the task of construction of the clause on the basis that the parties intended to produce a commercial result, one which makes commercial sense. It goes without saying that this requires that the construction placed upon cl 4 be consistent with the commercial object of the agreement. Evidence 1. For the purposes of the proceedings the plaintiff read the following affidavits: 1. Affidavit of Chris Thomas affirmed 28 June 2017; 2. Affidavit of Chris Thomas affirmed 19 July 2017; and 3. Affidavit of Mark Atty affirmed 18 July 2017. 1. The defendant read the affidavit of Paul Heard sworn 11 July 2017. Mr Heard is the Managing Director of the defendant and has been the Director of Creative and Agency of the defendant since 2010. In paragraph 4 of his affidavit, Mr Heard stated that the defendant's business is an agency that is primarily focussed on visual digital content, media, 3D, public relations and market strategy. The defendant's business currently employs 22 people. Credit issues Mr Thomas 1. Mr Thomas, the sole director of the plaintiff, gave oral evidence in the proceedings and was cross-examined. 2. It was clear to me that Mr Thomas was annoyed in relation to what he regarded as the poor performance by the defendant of its obligations under the Contract. 3. Despite this, I formed the view that Mr Thomas was an honest witness who gave evidence truthfully to the best of his recollection. He made concessions where appropriate and seemed to have a good recollection of events. 4. I accept his evidence as truthful. Mr Atty 1. Mr Atty is an employee of the plaintiff who also gave brief oral evidence and was cross-examined. I also accept Mr Atty as a witness of truth. He gave his evidence in a direct and forthright manner. Mr Heard 1. Mr Heard is the Managing Director of the defendant and gave oral evidence and was cross-examined. Mr Heard appeared to me to be defensive in relation to the contractual performance of the defendant and asserted that the Social Shopper platform was ready in its "first edition" by 1 April 2016 (T25.11; T27.11) despite his own employee Ms Shepounov, who was managing the project, saying the website would not be ready for 1 April 2016 in her 31 March 2016 email to Mr Thomas (Exhibit to Mr Thomas' first affidavit, page 55). Later email correspondence clearly establishes that the platform was not completed by 1 April 2016. Overall, I found Mr Heard often to be reluctant to answer questions directly if he thought the answers were contrary to Heard's interests. I therefore am of the view that some caution should be exercised in accepting his evidence where it is inconsistent with contemporary documents or the proper inferences from those documents. Background and factual findings 1. It is important to set out in some detail the factual background to the plaintiff's claim. The following paragraphs represent, unless I have indicated to the contrary, my factual findings in the case. 2. As indicated above, the parties entered into a contract for the provision of strategic marketing and public relations services in September 2015 ("the Second Contract"). This involved a six month retainer commencing on 1 September 2015 and concluding on 30 April 2016 with a two month break from December 2015 to January 2016. The Second Contract was set out in a written agreement which was executed on behalf of the plaintiff by Mr Thomas. Although the Second Contract in evidence was not signed on behalf of the defendant, there was no issue that the parties treated the Second Contract as binding. 3. Pursuant to the Second Contract, the plaintiff was obliged to pay the sum of $5,000 plus GST per month to the defendant, thus constituting a contract price of $30,000 plus GST. 4. What was involved in the retainer was set out in the Second Contract. The Second Contract set out a payment schedule which, although slightly ambiguous, should be read as indicating the dates when the six monthly payments under the Second Contract were due. It is clear that payments were due under the Second Contract from the plaintiff on 31 March 2016 and 30 April 2016. 5. Under Clause 13.1 of the Second Contract, payment was required from the plaintiff 14 days from the date of issue of an invoice except in relation to third party costs which were payable upon receipt by the plaintiff. The clause provided that late payments "may" be charged interest at the rate of 15% per annum on a daily basis. 6. Mr Thomas accepted in his oral evidence that he received two invoices from the defendant for the month of March 2016 in the sum of $5,000 and for April 2016 for the amount of $2,750 and that he did not pay them. Mr Thomas agreed that he had paid to the defendant the first four months invoices under the Second Contract. Mr Thomas also gave evidence that he had complained about the person responsible at the defendant for providing the marketing and strategic services as being too junior and that marketing services had not been provided in relation to the Shopper Social platform because of the dispute under the Contract. However, there was no clear evidence before me in relation to such complaints and they are not referred to in Mr Thomas' affidavits. It appears to me that the plaintiff decided not to pay the two invoices under the Second Contract because of what had occurred in relation to the Contract. 7. I will now deal with factual issues in relation to the January 2016 Contract. 8. Mr Thomas first briefed Mr Heard of the defendant with details in relation to the proposed Shopper Social web-based market research platform which he was contemplating that the defendant may construct for him on 20 November 2015. At that time, Mr Thomas provided Mr Heard with a document entitled "2016 Community Platform Brief" which provided information in relation to the proposed platform and the features which would be required by him. Under the heading "Timing" Mr Thomas stated the following in the document: "We are meeting our client to give a brief overview of possibilities on Wednesday the 2nd of December. We would timetable in 4 weeks to refine the brief and agree a contract with the client so we could commission the site by early-mid Jan and have it live by the end of March. The client would intend using it for commercial use from the 1st of April 2016 so would need to be ready by then." 1. By email dated 1 December 2015, Mr Heard provided a rough quote for the project of $45,000. Annexed to the rough quote was a document which indicated that the project delivery period was 11 January 2016 to 11 March 2016. 2. In an email dated 6 January 2016 from Mr Thomas to persons which included Mr Heard, Mr Thomas referred to the fact that he was looking at the defendant and another agency and then stated: "But our concern is your guys may not have done something similar before on the back end so we want to make sure what they would be getting themselves in for (are they building it from scratch)? My biggest fear is that the cost will blow out." 1. Mr Heard responded in an email dated 6 January 2016 that he would give a final quote to give Mr Thomas more confidence. 2. On 7 January 2016 Mr Thomas sent an email to Mr Heard providing in essence a list of requirements for the proposed community website which included the following: "We need to be live by 1st of April and I need to walk Nestlé through the w/c 21st March". 1. On 8 January 2016 Mr Heard provided Mr Thomas with an updated proposal which included the following: "Great news, you have much more for your dollar! Greatest news, you have unheard of payment terms?" 1. The updated proposal from Mr Heard included a project delivery period between 11 January 2016 and 18 March 2016 with a payment schedule which indicated commencement of the project on 11 January 2016 and completion on 1 April 2016 with four contract payments including two post the completion date of 1 April 2016 being on 1 May 2016 and 1 June 2016. 2. Mr Thomas states in his first affidavit that the reasoning behind the deadline of 1 April 2016 referred to in some of his emails to Mr Heard was that he had told his contacts at Nestlé that Shopper Social would be operational by that date and some of Play's competitors were already offering a similar service to Shopper Social. 3. On 13 January 2016 Mr Thomas sent an email to Mr Heard indicating that he did not have official sign off from Nestlé but his wish was to maintain a meeting between them to discuss the proposal "so we don't lose a week of development time in case I get the nod tomorrow". It appears that a meeting occurred on 14 January 2016 between the two men and Mrs Thomas. 4. Mr Thomas says that on 14 January 2016 he obtained confirmation from Nestlé that it would use the Shopper Social platform. On 14 January 2016 Mr Thomas claims he sent an email to Mr Heard to inform him of this. The email includes the following: "Great – heard back from the client this morning … we have the official green light and they have booked in a half day workshop on the 22nd of March for PLAY to walk them through the completed community. So that's the day we are working towards. Chop chop!" 1. In his affidavit and in his oral evidence, Mr Heard said he did not receive the 14 January 2016 email from Mr Thomas and he does not recall Mr Thomas informing him that he had the "green light" from Nestlé on that day. However, there is in evidence an email from Mr Heard dated 19 January 2016, five days later, to the following effect: "We have not forgotten you! Just bedding the contract down and will send that today. We will be good for that timeline." 1. The reference to being "good for that timeline" (emphasis added) is probably, I find, a reference to the timeline referred to in the 14 January 2016 email of a workshop on 22 March 2016. There is no dispute from the parties that other important emails were sent and received and I think it is likely that Mr Heard did receive the email dated 14 January 2016 from Mr Thomas. There is also no suggestion that other emails were sent between Mr Thomas and Mr Heard in the period 14 January 2016 to 18 January 2016 relating to a different timeline. Mr Heard's evidence that it may refer to a timeline discussed in an unidentified telephone conversation between the two men was not persuasive (even if that were the case, I agree with the plaintiff's submissions in chief that it is "highly unlikely that Mr Thomas would not, one way or the other, have informed Mr Heard that Nestlé had given the go-ahead for the project": submissions paragraph 15. The approval of Nestlé as a major client was important to the plaintiff and the project). 2. I make the finding that Mr Heard received the 14 January 2016 email despite the different subject headings in the email chain which allegedly precedes the 14 January 2016 email ("Still on for COB") compared to the email dated 19 January 2016 ("Contract & Timing"). 3. However, even if the 14 January 2016 email was not received by Mr Heard from Mr Thomas, I find Mr Heard was still aware of the importance of a completion date of late March 2016. 4. Mr Heard gives evidence that on 19 January 2016 he had a telephone discussion with Mr Thomas in which Mr Thomas said that he needed to know whether something would be delivered by 1 April 2016. Mr Heard said that the defendant was going to make "every best endeavour" to have something to the plaintiff by 1 April 2016 and that Mr Thomas responded "I need to make sure that I have something by 1 April 2016". 5. Again, whether the 19 January 2016 email which I have referred to was referring to the 14 January 2016 email from Mr Thomas or the telephone discussion, what is clear is that Mr Heard was aware of the importance of having the project completed promptly. 6. On 20 January 2016 Mr Heard sent an email to Mr Thomas attaching a draft contract and stated "we are still working on the timeline but all reverts to 24 March". The draft had a contract price of $55,000, the payment schedule included a second payment "on completion prior to handover (Due March 24, 2016)" and indicated that the contract term was for five months starting 20 January 2016 and finishing 24 May 2016. 7. Mr Heard states in his affidavit that the payment schedule was prepared on the basis that further works would be undertaken by the defendant in the months of April 2016 and May 2016 "to fine tune and complete the project to a robust and high-quality Application" and that the task of endeavouring to complete the works by 1 April 2016 was "ambitious". 8. There was some email correspondence between the parties in relation to the inclusion of software called "Kinesis". Mr Thomas raised the possibility of removing this part of the work to be done under the Contract. A conversation then occurred between Mr Heard and Mr Thomas in which he (Mr Heard) said that he would remove the Kinesis Phase 2B and amend the agreement. The contract price was then reduced to $45,000 including GST. On 21 January 2016 Mr Heard sent to Mr Thomas the updated contract which was in substance the same as the earlier draft contract only the contract price had been reduced to $49,500. The payment schedule with the reference to the second payment being due "on completion prior to handover (Due March 24, 2016)" remained in the redraft. 9. I find that the evidence establishes that Mr Thomas reviewed the redrafted contract, particularly the contract price and noticed the 'finish" date of 24 May 2016 opposite the words "Deliverables and Scope". Despite the payment schedule referring to "completion prior to handover" being due on 24 March 2016 Mr Thomas cautiously added a handwritten notation near the words "FINISH: 24 May 2016" to the following effect: "This is final invoice date. Finished working website to be completed by the end of March 16. It must be operational by April 1 [indecipherable]." 1. He then signed the Contract. 2. Mr Heard confirms in paragraph 23 of his affidavit that on 20 January 2016 at 7:08pm he received an email from Mr Thomas which attached a scanned copy of the signed amended Contract. This aspect of Mr Thomas' affidavit appears to be in error which he acknowledged in his oral evidence. At page 44 of the Exhibit to Mr Thomas' first affidavit is an email dated 21 January 2016 at 8:08pm forwarding the signed scanned copy of the Contract. The email includes the following: "I have made a note on the first page which says the contract finished 24th of May. I've just clarified that the 24th of May is the final invoice date but the site needs to be operational from April the 1st. This is quite critical because if it isn't, I will have major problems with Nestlé who are paying me a retainer from April the 1st. Anyway, I think you are fully aware of this so it's just a clarification point. So we have about 10 weeks from here – which I'm sure will go quite fast." 1. The Contract signed by Mr Thomas appears not to have been signed by or on behalf of the defendant. However, there is no evidence that anyone on behalf of the defendant disputed either the Contract forwarded back by Mr Thomas to the defendant through Mr Heard, the notation on the Contract, or the comment which Mr Thomas put in his 21 January 2016 email sent at 8:08pm. Thereafter, there was no dispute raised by the defendant as to the Contract returned by Mr Thomas. I find that the defendant proceeded with its work after that date based on a 1 April 2016 deadline and that through its conduct, it accepted the revised contract with the notation from Mr Thomas which in effect, as a matter of law, amounted to a counter-offer to enter into a contract on that basis. 2. In paragraph 23 of his affidavit, Mr Heard says that he did not consider the notation to be an amendment to the contract. However, in my view it was clearly objectively an amendment to the redraft sent by Mr Heard which was accepted by the defendant through conduct. This was not disputed by counsel for the defendant in his written and oral submissions. 3. I will consider the legal issues relating to this later in these reasons. 4. The employee of the defendant who had prime responsibility for dealings with Mr Thomas in relation to the work to be done under the Contract concerning the Shopper Social platform was a Ms Larissa Shepounov. In paragraph 17 of his affidavit, Mr Thomas describes Ms Shepounov as the Account Director of the defendant and the designated person under the Contract. Certainly, the majority of the email communications after that date were between Mr Thomas and Ms Shepounov who appeared to represent the defendant in relation to the work under the Contract. No affidavit from Ms Shepounov was read by the defendant in the proceedings. 5. On 29 January 2016, Ms Shepounov sent an email to Mr Thomas attaching "the timeline for the Shopper Community project" and the invoice for the first instalment. The attached timeline included the words "present to Nestlé 24/3". The forwarding of the timeline and the sending of the invoice for the first instalment in my view shows that the defendant had clearly accepted the signed contract forwarded as a counter-offer by Mr Thomas on behalf of the plaintiff to Mr Heard. 6. Mr Heard says that from 1 February 2016 the defendant commenced work on the application with the plaintiff. The evidence shows that the plaintiff paid the first instalment under the Contract on 11 February 2016 and the second instalment under the Contract on 25 March 2016. 7. On 17 February 2016 Mr Thomas sent an email to Ms Shepounov and Mr Atty (an employee of the plaintiff) which included the following: "Just checking in … we are five weeks away from launch so want to make sure we are all on schedule. You're timeline suggests we are finalising some things this week …" There was no response to this email in evidence. 8. On 24 February 2016 Mr Atty sent an email to Ms Shepounov which included the following: "We are still on schedule? Think it's about a month to go?" He also indicated that he was happy with the progress in preparing the work under the Contract. 9. There is a disputed meeting on 1 March 2016 in relation to a conversation which occurred between Mr Heard, Mr Atty and Ms Shepounov. Mr Heard expressed concern that the project was behind the timeline and asked whether Mr Atty was comfortable with that. He asserts that Mr Atty said "you have to give something so we can show Nestlé. We don't need the whole thing completed." 10. In his affidavit Mr Atty says he raised a concern that the defendant was behind in the deadline and said the defendant should at least have the "front-end of the website finished" so he could present it to Nestlé or at least have the website appearing like a "working site". When asked by Mr Heard whether Mr Thomas would be content with that course, Mr Atty claims he said "I guess he has to be. I don't see how we have another choice." 11. In my view, having seen both witnesses being cross-examined on the issue and having regard to the Contract, I think Mr Atty's version is more likely to be correct and I prefer it. Mr Thomas always emphasised the need for completion by the end of March 2016 and I do not consider Mr Atty would have likely acknowledged (or accepted) a different completion date so readily as is alleged by Mr Heard. In the end, no issue was made by the defendant of the disputed conversation. 12. On 1 March 2016 Mr Thomas sent an email to Mr Heard which included the following: "Mark said he had a good meeting but there were a couple of noises coming through the timing is becoming an apparent concern. So I just wanted to reiterate that the April the 1st (at the latest) is a hard deadline, and always has been. That's why I kept bringing it up at our initial meeting that I can't let Nestlé down and the timing was unmovable [sic]. That's also why I also clearly pointed this out on the attached contract and spelled it out again in the email below, just to clarify and make sure there was zero ambiguity as to when the deadline was. So, I hope everything is under control, and I'm needlessly worrying, but if you are concerned, is it possible to get extra resource now so the project doesn't fall over at the 11th hour? As we briefly mentioned today, there are several aspects that we could tweak the first few weeks into April (such as redemption integration, etc), but it must be accommodating respondents no later than April 1 (ideally the week before), who can fully complete their profiles and receive surveys at that time. Can I get your assurance that this will happen?" 1. Further work was completed on the project by the defendant, which included interaction with Mr Thomas and Mr Atty, in the period 22 March – 29 March 2016. 2. On 29 March 2016 at 9:51am Mr Thomas sent an email to Ms Shepounov which was copied to Mr Heard which included the following: "I just wanted to touch base as we did the big preso to Nestlé on Thursday and are doing it again to Arnott's tomorrow and both are excited to be using the platform from Friday the 1st of April (ie this Friday). On that day they will all be registering for the site, so all must appear normal. They both have paid subscriptions commencing Friday, so moving the launch date isn't an option, so I just want to make sure you are on track to deliver. … Please shout if there are any issues. I am looking forward to seeing it all in action." 1. There was no indication at this time by the defendant that there would be any delay by the defendant. This is surprising in the light of subsequent events. 2. Mr Thomas gives evidence that on 31 March 2016 he had a telephone conversation with Ms Shepounov which included Ms Shepounov informing Mr Thomas that the defendant would not be ready to launch on 1 April 2016 and that they were still working on the application and hoped it would be ready by Monday 4 April 2016. Mr Thomas sets out in his affidavit that he responded: "It's a little late to be telling me this now. I have been chasing you up about the deadline all month. My clients are expecting it to launch tomorrow and I have made it completely apparent to Heard from the outset and many many times during, that the deadline was the 1st of April as clients are paying from this date. I've told Heard specifically not to leave things to the 11th hour, and now you tell me the day before it won't be ready, which is going to make us look completely unprofessional to our clients. Why have you not told me this before?" 1. On 31 March 2016 at 3:58pm Ms Shepounov sent an email to Mr Thomas copied to Mr Heard in which she confirmed that the first phase of the website, being those sections dealing with registration and the member dashboard on the site map, would not be live for 1 April 2016. Ms Shepounov included the following: "While delaying the website launch is not ideal, we feel it is necessary in order to deliver the premium site we agreed to. This additional time will allow us to complete the necessary testing and browser optimisation required to ensure the product presented to your clients and to the public is seamless." 1. Ms Shepounov indicated that the "revised delivery" would be the first phase of the website being the "green sections on the site map" by 8 April 2016 with the site being "completed" by 22 April 2016. 2. There was then an exchange of emails on 31 March 2016 in which there were complaints from Mr Thomas in relation to what he described as the defendant's "big failure to deliver". Mr Heard disputed that the project had "failed". In an email dated 31 March 2016 sent at 4:48pm Mr Thomas stated to Ms Shepounov (copied to Mr Heard) that the delay would cost the plaintiff a minimum of $4,000, that he needed to refund a proportion of a subscription and that was why he "was absolutely adamant on the April 1st deadline". Mr Thomas concluded "can I have your absolute assurance that next week clients and respondents can register on the site, complete their profile and we can send them surveys?" 3. In an email dated 1 April 2016 which Mr Thomas sent to Mr Heard (copied to Ms Shepounov) Mr Thomas stated that Nestlé were not happy about the delay and had asked Mr Thomas to give a definite confirmation of the live date next week. Mr Thomas again sought an absolute confirmation that the site would be live and working next week and indicated by attaching an email thread that the 1 April 2016 had been a "hard deadline". The email thread included his 21 January 2016 email to Mr Heard explaining the notation on the Contract which he had added. It is clear that completion of the operational application remained urgent to the plaintiff. 4. It seems clear from the email correspondence that employees of the defendant continued working on the application in the period from 1 April 2016 until at least 12 April 2016. Mr Thomas did not agree in cross-examination that as far as he was aware the application was substantially completed in the period between 1 April 2016 and 15 April 2016: T54.12 (27/7/17). Mr Atty also appeared to deny this: Atty affidavit paragraph 6; T17.27-18.1 (28/7/17). 5. In an email dated 8 April 2016 from Ms Shepounov to Mr Thomas and Mr Atty, Ms Shepounov stated: "As I mentioned over the phone we are focussing on the bigger functionality items and once they are completed we will make the smaller fixes such as formatting of the text." On 9 April 2016 Mr Atty said in an email to Ms Shepounov that he had looked through the site "and there were still a lot of issues and bugs." 6. On 12 April 2016 Mr Thomas said in an email to Ms Shepounov and Mr Heard the following: "Can you let me know what time I can expect an update today please? I really need to be transparent with Nestlé and Arnott's and give them a rundown shortly (definitely today). I am also at Arnott's tomorrow talking to the team about the community which is another reason I need good visibility today." 1. Later that day Mr Thomas confirmed to Ms Shepounov and Mr Heard that he wanted them to concentrate on coming up "with the fastest possible solution … time is obviously of the essence." 2. In cross-examination Mr Thomas said that he was not able to show an operating platform to either Nestlé or Arnott's and that his presentation consisted primarily of showing screen shots and making promises as to the expected functionality of Shopper Social: T52.33-.44 (27/7/17). I accept this evidence as inherently likely. 3. In paragraph 41 of his first affidavit Mr Thomas says that he had a telephone conversation with Ms Shepounov on 12 April 2016 in which she said to him words to the effect: "We have reviewed everything and we are unable to complete the project internally. We have found a company with the appropriate skill set and we can outsource the project to them and they estimate a project completion of another 4-6 weeks. Unfortunately, it will run over your budget so if we proceeded with this option we estimate it would cost a further $25-30K which we would have to charge in addition to the final payment, or alternatively we could terminate the project and you can continue to use a developer of your choice." 1. Mr Thomas claimed that he informed Ms Shepounov that he had lost all confidence in the defendant and that he would think about the matter and get back to her shortly. 2. In an email from Mr Thomas to Ms Shepounov on 13 April 2016 Mr Thomas stated the following: "After reviewing the project again yesterday you suggested 2 courses of action. That you continue to build the site, but the final deliverable would be 4-6 weeks and that current costs had exceeded your budget and therefore costs to us would significantly increase if we proceeded with this option. You have [sic - hand] over everything to date to a developer of our choosing, and no further invoices would be sent to us. Please shout if I have misinterpreted anything. We are investigating options and we'll be in touch shortly." 1. In cross-examination Mr Thomas conceded that his email was sent when the events were fresher in his memory than when he recorded the conversation set out in his affidavit and that he had not received anything from Ms Shepounov correcting what he had put in the email: T53.37; T54.3 (27/7/17). 2. In his 12 April 2016 email sent at 5:01pm Mr Thomas indicated to Ms Shepounov and Mr Heard that he would like an external developer to look at the computer code for the application as soon as possible. In his affidavit Mr Thomas said that was for the purpose of him obtaining independent advice on whether to continue to use the defendant to complete the development or to retain a third party to take over the project. I accept that evidence as it is consistent with the email and is inherently likely. 3. In his affidavit Mr Thomas claims that on 13 April 2016 he confirmed to Ms Shepounov that he was waiting for two quotes to come and that a decision would be provided shortly. 4. On 15 April 2016 Ms Shepounov indicated that the defendant had continued to work on the project and made some improvements to it but there were still some glitches. Mr Thomas claims that he replied to Ms Shepounov in words to the following effect: "I thought things were on hold as we were still contemplating a move to another developer. Please do not do anything else for the time being." 1. I accept Mr Thomas' evidence of the two conversations on 13 April and 15 April 2016 despite the defendant's submissions to the contrary: written submissions paragraphs 122-131. He impressed me as a truthful and fairly careful witness. There was no evidence called from Ms Shepounov to rebut these conversations. 2. There was correspondence between the parties in the period 15-18 April 2016 in relation to the application with the assertion on behalf of the defendant that the application was working. There were no emails after 19 April 2016 until 27 April 2016. Mr Heard states that the defendant continued to work on the application during that time. However, whilst that may be the case, the continued work would have been contrary to Mr Thomas' request in his 15 April 2016 conversation with Ms Shepounov (paragraph 46 of his first affidavit) for the defendant not to do any further work for the time being. Mr Thomas had also not indicated that the plaintiff had accepted the first option outlined by Ms Shepounov. 3. On 27 April 2016 at 9:41am Mr Thomas sent an email to Ms Shepounov headed "New Development Team" which included the following: "4mation Technologies will be taking over development of Shopper Social. As you know, we are against the clock so they have requested a few details from Heard so they can hit the ground running ASAP and ensure the site doesn't suffer further delays. They are getting started on it today." 1. Mr Thomas then asked for certain information to be provided to a Mr Sheppard at 4mation. 2. Ms Shepounov replied on 28 April 2016 in an email to Mr Thomas in which she stated the following: "We understand that time is of the essence and therefore we'll provide the details and files requested below. However, before we can, the following invoices require payment. Once paid we will release the requested files." 1. The invoices were the March retainer payment invoice under the Second Contract, 50% of the April retainer invoice under the Second Contract and certain fees for domain registration and related services. 2. Under the Second Contract the plaintiff only made the first four payments and did not make the last two payments. 3. In his first affidavit Mr Thomas sets out his meeting with 4mation Technologies on 22 April 2016 to discuss the possibility of them taking over the work remaining in developing the Shopper Social application "as a rescue project" (paragraph 50 of his first affidavit). 4. On 28 April 2016 the plaintiff retained 4mation Technologies to complete the development of the application. In paragraph 53 of his first affidavit Mr Thomas stated that he decided that it was not worth paying for the defendant to release the computer code it had written for the application to 4mation Technologies, "as it would be more cost-effective and efficient for 4mation to start the build from scratch using the designs PMR had put together for it." Mr Thomas said he was advised this by 4mation and he had formed the view that that was appropriate because of the problems with the Shopper Social application as prepared by the defendant and the delays: T63.18 (27/7/17). 5. I accept that evidence. In my view, and I find, this was a not unreasonable course for the plaintiff to adopt. The evidence shows that the cost to the plaintiff of retaining 4mation Technologies to build the application was $80,737.50 plus GST. There was some cross-examination of Mr Thomas to the effect that the work undertaken by 4mation Technologies included site maintenance work and not merely the construction work: T65-66 (27/7/17). Mr Thomas denied that the "performance agile innovation package" which the plaintiff contracted with 4mation to obtain involved three payments of $17,000 per month plus GST (pages 84-86 of the exhibit to Mr Thomas' affidavit). However, the tax invoice at page 87 of the exhibit shows that there was no charge for 330 hours of development work and at page 91 that certain work was included with the package. I accept Mr Thomas' evidence that the work undertaken by 4mation which cost $80,737.50 plus GST was only work related to the development of the Shopper Social platform and did not relate to general computer maintenance work: T66.33 (27/7/17). 6. Mr Thomas' affidavit shows that in the period February-March 2016 the plaintiff entered into agreements with Arnott's and Nestlé for a subscription to Shopper Social from 1 April 2016 to 30 June 2016. Mr Thomas says in paragraphs 61-62 of his first affidavit that in order to provide market research services to Nestlé and Arnott's from 1 April 2016 as agreed (which ought to have been provided by the Shopper Social platform), the plaintiff retained the services of companies called Pureprofile Pty Ltd and TEG Rewards Pty Ltd. These companies operated a reward-based market research platform similar to Shopper Social, although without the same computer functionality. Mr Thomas confirms that the plaintiff incurred fees of $25,087.41 to Pureprofile and TEG Rewards in order to service Nestlé and Arnott's as agreed. This amount is claimed as damages. I accept this evidence. 7. The Shopper Social platform became operational on 6 June 2016 following the work undertaken by 4mation Technologies. The terms of the Contract 1. One issue between the parties is what were the terms of the Contract entered into. 2. The Contract signed by Mr Thomas on 21 January 2016 was never signed on behalf of the defendant. However, there is no alternative written contract and in my view the conduct of the defendant in proceeding to undertake work in constructing the computer platform Shopper Social and sending the invoice dated 29 January 2016 described as "Progress Invoice #1-25%" is clearly consistent with the Contract signed by Mr Thomas being accepted by the defendant through conduct: see New South Wales Land and Housing Corporation v Diab [2015] NSWCA 133 at [33]. 3. Subject to the issue of the notation, in my view it is clear that the signed document represented the contract between the parties. 4. I do not regard the conversation set out in paragraph 14 of Mr Heard's affidavit sworn 11 July 2017 where he said that the defendant was going "to make every best endeavour to have something to you by 1 April 2016" as qualifying the obligations in the Contract. The conversation has to be seen in the context of Mr Heard giving evidence in the paragraph that Mr Thomas emphasised that he needed to make sure that he had something by 1 April 2016 to show Nestlé. 5. The issue then turns to whether the notation written by Mr Thomas by hand on the Contract formed part of the terms of the Contract. To repeat the evidence, Mr Thomas circled the finish date listed of 24 May 2016 and added by hand: "This is final invoice date. Finished working website to be completed by the end of March 16. It must be operational by April 1 (indecipherable)." 6. The plaintiff submits that this formed part of the Contract between the parties and made clear the importance of timing to the defendant: submissions in chief paragraphs 12-14. 7. The defendant appears to take a similar view in its submissions: written submissions paragraph 42. 8. As is clear from the authorities referred to above, a contract is to be construed by reference to what a reasonable person would understand by the language in which the parties have expressed their agreement having regard to the context in which the words appear and the purpose and object of the transaction. The meaning of the terms of a commercial contract is to be determined by what a reasonable business person would have understood those terms to mean. 9. In my opinion, objectively on the face of the Contract, a reasonable business person would conclude that the notation clearly became a term of the Contract. Even without the notation, the reference on the second page of the Contract to the second payment being due "on completion prior to handover (Due March 24, 2016)" would suggest that the completion of the work was to be by 24 March 2016. Also the reference to "FINISH: 24 May 2016" has to be seen in the context of the fourth payment set out in the payment schedule as being due on 24 May 2016. The handwritten notation by Mr Thomas is clear, was in relation to a serious matter crucial to the Contract, and in my view clearly formed part of it. 10. To the extent there is any ambiguity, the Court of Appeal stated in Cordon Investments Pty Ltd v Lesdor Properties Pty Ltd [2012] NSWCA 184 at [52], that at least in the case of ambiguity, resort can be had to the surrounding circumstances known to the parties in interpreting the particular provision. Whether that concept was changed in Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640 at [35] or not, it is clear that the surrounding circumstances known to the parties may be considered by the Court in construing the alleged contract. 11. In the present case, in my opinion the surrounding circumstances make clear that the notation formed part of the Contract: 1. The initial briefing by Mr Thomas in November 2015 to Mr Heard made reference to the platform having to be ready for commercial use from 1 April 2016 – see page 3 of the exhibit to Mr Thomas' first affidavit; 2. Mr Thomas' 7 January 2016 affidavit referred to the need for the platform to be "live" by 1 April 2016 – page 5 of the exhibit to Mr Thomas' first affidavit; 3. Importantly, the 21 January 2016 email that forwarded the signed Contract from Mr Thomas to Mr Heard indicated that the site needed to be operational from 1 April 2016 and that it was "quite critical". 1. All the surrounding circumstances in my view objectively point to the need for the platform to be completed by the defendant by 1 April 2016. 2. The plaintiff also alleges that there was a term of the Contract that the platform application would be built using the WordPress content management system: see submissions in chief paragraph 4 (b). The defendant disputes this in part but agrees that it was a term of the Contract that the content management system would be WordPress: written submissions paragraphs 31 and 34. This at least seems to be established by the express terms of the Contract: "Phase 1: User interface…- Content Management System (Word press CMS) inclusive of analytics and social media integration to manage the community front end content": Exhibit to Mr Thomas' first affidavit page 12. Was there a breach of the Contract by the defendant? 1. As the Contract was for the preparation of a computer platform, there would always be the possibilities of errors or minor problems in the operational system which would need to be corrected. This is recognised in Clause 13.2 of the Contract. 2. The first payment under the payment schedule was due on 22 January 2016. This was not paid by the plaintiff until 11 February 2016 but there is no evidence that the defendant delayed the work at all because the first payment itself was delayed from the plaintiff. 3. The evidence which I have set out above (paragraphs 64-70), clearly shows in my view that the defendant did not produce an operational platform for Shopper Social which could be accessed by internet users on or before 1 April 2016. See for example Ms Shepounov's 31 March 2016 email to Mr Thomas which was copied to Mr Heard. Mr Heard claimed in his oral evidence that the defendant produced a "first edition" by 1 April 2016: T27.13 (28/7/17). It is unclear what he meant by that. However, Ms Shepounov was effectively in charge of the project and her emails are to be preferred on this issue as they are contemporary and from the person supervising the project and thus likely to be more accurate. I prefer the plaintiff's submissions on this issue. "Operational" in this context clearly objectively meant able to be accessed by persons on the internet. This failure was a breach by the defendant of the Contract. 4. I do not consider that there was a breach by the defendant of the Contract by the platform application not being live on the internet using the WordPress content management system by 1 April 2016: see the Plaintiff's submissions in chief paragraphs 16-17. The term pleaded in the Statement of Claim in relation to WordPress does not have a timing component. Nor was there a timing component in the Contract as to WordPress. The defendant could have used WordPress but produced the application late in breach of the Contract. I accept the defendant's submissions that the evidence did not establish a breach of the WordPress term pleaded. In oral submissions counsel for the plaintiff was unable to point me to evidence establishing that the application developed by the defendant was not built using/did not utilise the WordPress system. For these reasons, this breach of the Contract was not established. Was time of the essence in the Contract in relation to the production of the platform? 1. Usually it is necessary for a contract to state expressly that time is of the essence for time to become of the essence. However, whether time is essential in a contract depends on the proper construction of the contract: Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) SR (NSW) 632 at 641-2; Burger King Corp v Hungry Jack's Pty Ltd (2001) 69 NSWLR 558; [2001] NSWCA 187 at [126]-[127]. 2. In my view, the notation in the Contract, in the surrounding circumstances, was clear to make completion of an operational system by 1 April 2016 by the defendant as crucial. This was sufficient, in my opinion, to make time of the essence in relation to the completion of the project. In my view no other reasonable conclusion can be reached from a review of the Contract in its surrounding circumstances other than completion of the Shopper Social platform in an operational state by 1 April 2016 was of the essence. I generally agree with the plaintiff's submissions in chief on this issue: see paragraphs 14-15 of the submissions. 3. Accordingly, in my view, when the platform was not completed in the sense of being operational on the internet by 1 April 2016 there was a breach of the Contract by the defendant. 4. In Galafassi v Kelly [2014] NSWCA 190 Gleeson JA (with whom Bathurst CJ and Ward JA agreed) stated as follows at paragraphs 62-63: "[62] For the conduct of a party to constitute a renunciation of its contractual obligations it must be shown that the party is either unwilling or unable to perform its contractual obligations, that is, it has evinced an intention to no longer be bound by the contract or stated that it intends to fulfil the contract only in a manner substantially inconsistent with its obligations and in no other way: Shevill v Builders Licensing Board [1982] HCA 47; 149 CLR 620 at 625–626; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623 at 634, 647–648, 658; Koompahtoo at [44]; Foran v Wight [1989] HCA 51; 168 CLR 385 at 423. Where inability to perform is declared the conduct amounts to a refusal to perform and the innocent party need not prove that the other party was actually unable to perform as a matter of fact: Universal Cargo Carriers Corporation v Citati at 437. [63] A renunciation can be made either by words or conduct, provided it is clearly made: Shevill at [314]. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it: Koompahtoo at [44]; Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd at 659 (Deane and Dawson JJ) and at 647 (Brennan J)." 1. In my view, the correspondence from the defendant on 31 March 2016 plus the subsequent conduct of the defendant, established that the defendant intended to fulfil the Contract only in a manner substantially inconsistent with its obligations and in no other way by completing the platform at a significantly later date to 1 April 2016. This was confirmed by Ms Shepounov's 1 April 2016 email to Mr Thomas and Mr Heard. See also Ms Shepounov's 8 April 2016 email. 2. This amounted in my opinion to a breach by at the latest 1 April 2016 of an essential or important term of the Contract which entitled the plaintiff to terminate the Contract. 3. In Galafassi, above, at [73]-[83], Gleeson JA stated as follows: [73] In each instance the Purchasers contend that the situation is to be characterised as posing an election between inconsistent rights where a person must choose between exercising one or the other of them. The relevant choice is said to be either: (a) to accept the Purchasers' repudiatory breach and terminate the Contract; or (b) to choose to insist upon further performance: Sargent v ASL Developments Ltd [1974] HCA 40; 131 CLR 634 at 641, 645–6 (Stephen J) and 655–6 and 658 (Mason J); Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; 238 CLR 570 at [58]. [74] At the heart of election is the idea of confrontation which in turn produces the necessity of making a choice: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27; 182 CLR 26 at 42. Thus where a party, faced with the choice of terminating the contract or keeping it on foot, terminates the contract ordinarily that conduct leaves no doubt as to the choice being made. This is because the contract no longer exists. But as the High Court explained in Immer at 41, the question is not answered so readily where the situation is the converse. This is because a party may act on the basis that the contract remains on foot without necessarily being confronted with the necessity of making a choice to either terminate or affirm the contract: Immer at 42–43. [75] This is to be contrasted with a situation of inconsistent remedies to enforce a right where no question of election arises until one or other claim has been pursued until judgment: United Australia Ltd v Barclays Bank Ltd [1941] AC 1 at 30; Baxter v Obacelo Pty Ltd [2001] HCA 66; 205 CLR 635 at [39]. The institution of proceedings for alternative remedies (including relief of an equitable nature) is not an election by the promisee in favour of either remedy. The very purpose of seeking alternative relief is to keep the promisee's options open: see J W Carter, Carter's Breach of Contract (2nd ed, 2011, LexisNexis Butterworths) at [10–58]. The distinction between alternate rights and remedies and its consequences has been described by the High Court as "fundamental": Ciavarella v Balmer at 449. [76] Although an election between inconsistent rights once made is irrevocable: Tropical Traders Ltd v Goonan [1964] 111 CLR 41 at 55, it does not follow that an innocent party who seeks (and gets) specific performance is treated as affirming the contract irrevocably so as to prevent the innocent party from later bringing the contract to an end if the repudiating party persists in its failure to perform. [77] In Ogle v Comboyuro Investments Pty Ltd [1976] HCA 21; 136 CLR 444 at 459–460 the High Court (Gibbs, Mason and Jacobs JJ) held that a vendor who is entitled to rescind a contract for sale of land by reason of the purchaser's failure to complete on time, but who elects to sue for specific performance, is not thereby precluded from later rescinding the contract and claiming damages for the continued refusal by the purchaser to complete, if the purchaser's conduct evinces an intention no longer to be bound by the contract. Ogle v Comboyuro Investments Pty Ltd highlights the important distinction between inconsistent rights to terminate or affirm a contract (as to which the institution of proceedings for specific performance is an election to affirm the contract) and the choice between inconsistent or alternative remedies of specific performance or damages (as to which no election arises until judgment). [78] In Johnson v Agnew [1980] AC 367 the House of Lords accepted that obtaining a decree for specific performance was an affirmation of the contract yet the House declined to treat the innocent party's decision to affirm as irrevocable so as to prevent him from bringing the contract to an end when the repudiating party persisted in his failure to perform. Lord Wilberforce explained at 398 why that was so: A vendor who seeks (and gets) specific performance is merely electing for a course which may or may not lead to implementation of the contract — what he elects for is not eternal and unconditional affirmation, but a continuance of the contract under control of the court which control involves the power, in certain events, to terminate it. [79] This is not to suggest that the innocent party may in all cases change his or her mind after affirming the contract. The position is correctly stated by Mr Sumption QC, as he then was, sitting as a Deputy High Court Judge in Safehaven Investments Inc v Springbok Limited (1996) 71 P & CR 59 at 68, where he observed, in reference to the analysis in Johnson v Agnew: It does not follow from this analysis that the innocent party may in all cases change his mind after affirming the contract. If, for example, after he had affirmed it, the repudiating party's conduct suggested that he proposed to perform after all, then that party's previous repudiation is spent. It had no further legal significance. If, on the other hand, the repudiating party persists in his refusal to perform, the innocent party may later treat the contract as being at an end. The correct analysis in this case is not that the innocent party is terminating on account of the original repudiation and going back on his election to affirm. It is that he is treating the contract as being at an end on account of the continuing repudiation reflected in the other party's behaviour after the affirmation." [Emphasis added.] [80] Similarly in Ogle v Comboyuro Investments Pty Ltd at 461 the High Court (Gibbs, Mason and Jacobs JJ) said: If a party has by his conduct shown and continues to show an intention never to complete the contract, especially when his conduct by express act or by implication is not consistent with an intention to perform the contract pursuant to any judgment for specific performance, then it must be open to a vendor to rescind even if there is current an action for specific performance. If there is a further breach of an essential term or some further conduct amounting to a repudiation while the action for specific performance is pending, the existence of the action will not then prevent the vendor electing to rescind but he will on such an election lose the right which he previously had to specific performance and will be limited to damages for the breach." [Emphasis added.] [81] In Holland v Wiltshire [1954] HCA 42; 90 CLR 409 a vendor had not accepted a repudiation of the contract conveyed by the purchasers' solicitor and had insisted on performance by giving the purchasers notice of 17 March to complete by 28 March. At 420–421 Kitto J noted that after this clear election the right of the vendor to end the contract because of the repudiation conveyed by the purchasers' solicitor was plainly gone, but went on to observe: It is at least clear that the express refusal through the solicitor to go on with the matter, though the vendor lost by his election the right to terminate the contract by reason of it, remained as a fact in the history of the matter and gave an unmistakeable colour to the continued inactivity of the purchasers after receiving the vendor's ultimatum. The only possible inference was that the purchasers were refusing, deliberately and finally, to complete the purchase. Consequently, when 28 March had gone by, the contract unquestionably stood repudiated by the purchasers, and the vendor, if his patience should become exhausted at any time while the repudiation continued, was entitled to treat the contract as no longer binding upon him … … But, when the plaintiffs found that the defendants were inflexible, and would not perform the contract at all, they had, in my opinion, a right to treat it as at an end and to bring an action for its breach. It would indeed be strange if the plaintiffs by trying to persuade the defendants to perform their contract were to lose their right to sue for its non-performance when their patience was exhausted." [Emphasis added.] [82] This statement of Kitto J was approved in Ogle v Comboyuro Investments Pty Ltd at 458–459. [83] In summary, the legal significance of commencing proceedings for specific performance is as follows — a vendor who elects to sue for specific performance is not thereby precluded from later terminating the contract and claiming damages for the continued refusal by the purchaser to complete if the purchaser, after the institution of the proceedings, either committed a breach of an essential term of the contract or otherwise evinced an intention to no longer be bound by the contract: see generally Meagher, Gummow and Lehane's Equity: Doctrines and Remedies (4th ed, 2002, Butterworths) at [20–265]. 1. In paragraph 88 of Galafassi Gleeson JA stated as follows: [88] Counsel for the Purchasers did not argue that the mere continuance by the Vendor of the action for specific performance after the Purchasers' emails amounted to a further affirmation of the Contract by the Vendor. Why should the position be different if the Vendor files her pleaded claim in compliance with Court directions? The answer would seem to lie in the principles relevant to election between inconsistent rights. First an election to terminate must generally occur within a reasonable time of the discovery of the circumstances giving rise to the right: Champtaloup v Thomas [1976] 2 NSWLR 264 at 273. But there is no requirement that the promisee must elect immediately. The promisee may keep its options open so long as it does nothing to affirm the contract and so long as the promisor's position is not prejudiced in consequence of the delay: Tropical Traders Ltd v Goonan at 55. Secondly if the promisee's unequivocal conduct evinces an intention to affirm its obligation to perform, the right of termination is lost. Was there an election by the plaintiff to affirm and not to insist on its contractual rights? 1. The defendant submits that the conduct of the plaintiff in the circumstances was to affirm the existing Contract and not to terminate it: written submissions paragraphs 91-98. However, it is unclear what contract could have been affirmed. Was it a contract to produce an operational system by 1 April 2016? Clearly that could not be the case as this time had passed. Was it to produce an operational system by the time set out in Ms Shepounov's 1 April 2016 email? The plaintiff submits that any affirming was impossible because of the timing issue. 2. The defendant says that upon the affirming of the contract, the time obligation to produce an operational system fell away and the only time obligation was to produce an operational system within a reasonable time. The plaintiff responded that if this was the case a reasonable time had to be determined by the circumstances and the time period remained urgent. This was clear from the correspondence between the parties on and from 1 April 2016. 3. As stated in Galafassi whilst an election to terminate must generally occur within a reasonable time of the discovery of the circumstances giving rise to the right, there is no requirement that the promisee must act immediately. The promisee may keep its options open so long as it does nothing to affirm the contract: at [88]. In my view there was nothing unequivocal from the plaintiff which amounted to an election to choose between inconsistent rights. In his 31 March 2016 email Mr Thomas referred to "a big failure to deliver from Heard": Thomas Exhibit page 58. 4. The evidence is consistent with Mr Thomas trying to attempt to protect his reputation with Nestlé and Arnott's while at the same time seeing how the preparation of the system could be advanced. In Mr Thomas' 12 April 2016 email he emphasised that time was "obviously of the essence" and he wished an external developer to look at the code as soon as possible. The 13 April 2016 telephone conversation between Ms Shepounov and Mr Thomas set out in paragraph 45 of Mr Thomas' first affidavit is also consistent with him assessing the position. 5. In my view the plaintiff had not elected to affirm the Contract as varied by the dates communicated in Ms Shepounov's 1 April 2016 email or the Contract as originally signed by Mr Thomas on behalf of the plaintiff. There is no relevant unequivocal conduct on the plaintiff's behalf. Only a short time expired between 1 April 2016 and 12 April 2016. The plaintiff was assessing its options. Accordingly, the plaintiff had not by an election lost the right to terminate the Contract. 6. If I am wrong in the above conclusion, in my view, the later telephone conversation between Mr Thomas and Ms Shepounov on 12 April 2016 (paragraph 41 of Mr Thomas' first affidavit) amounted to a further breach of an essential term by the defendant. The 13 April 2016 email from Mr Thomas to Ms Shepounov is slightly different to the conversation but clearly confirmed the defendant informing the plaintiff that there would be significant delays and significant cost increases. Again, in my view this conduct from the defendant amounted to a breach of an essential term of the Contract giving an entitlement to the plaintiff to terminate the Contract. The defendant was informing the plaintiff that it would only complete the Contract on its terms not the agreed contractual terms: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 at 634 per Mason CJ. In other words, it was conduct from the defendant such as to convey to a reasonable person, in the situation of the plaintiff, renunciation of a fundamental obligation under the Contract being the important time for completion of the operational application: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at 135; Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353 at [88]-[90]. 7. Further, there was no conduct of Mr Thomas or anyone else from the plaintiff which would confirm as binding the later proposed delivery date in circumstances where further delays were unclear in time and the additional costs were also unclear. Did the plaintiff terminate the Contract? 1. As to the issue of termination, the parties took different positions. 2. The defendant submitted that there had not been a valid termination of the Contract by the plaintiff: written submissions paragraphs 146-156. 3. The plaintiff submits that the defendant repudiated the Contract both on 31 March 2016-1 April 2016 and in the 12 April 2016 telephone conversation between Mr Thomas and Ms Shepounov as confirmed in the email from Mr Thomas to Ms Shepounov sent at 5:34pm on 13 April 2016 (to which there was no relevant response). It is said that the defendant evidenced an intention no longer to be bound by the Contract and repudiated it (paragraph 9 of the Statement of Claim). See also paragraphs 22-23 of the plaintiff's submissions in chief. 4. In my view, both the conversation and the email (without correction by the defendant) clearly evinced an intention by the defendant no longer to be bound by the Contract. What the communications constituted, was a statement by the defendant that it intended to fulfil the Contract only in a manner substantially inconsistent with its obligations under the Contract and in no other way: see paragraph [62] of Galafassi v Kelly, above and the cases there cited and the discussion in paragraph 123 above. 5. In his evidence Mr Thomas conceded, in essence, that his email was more likely to be accurate than his recollections as set out in his first affidavit on this issue. 6. In my view, the telephone conversation (as confirmed in the email) constituted objectively a repudiation of the Contract by the defendant. The delays and the extra costs were considerable. There was also no clear evidence supporting Mr Heard's assertion that the extra costs were due to additional functionality requested by the plaintiff: T35-36 (28/7/17). 7. In paragraph 10 of its Statement of Claim, the plaintiff relies on an email from Mr Thomas to Ms Shepounov sent on 27 April 2016 as, in effect, an acceptance of the repudiation and a termination of the Contract. 8. The question therefore arises whether the email dated 27 April 2016 from Mr Thomas (page 76 of the exhibit to Mr Thomas' first affidavit) amounted to an acceptance of the repudiation of the Contract by the defendant. 9. The email has to be seen in its context: 1. In his 12 April 2016 email (page 72 of the exhibit to Mr Thomas' first affidavit) Mr Thomas indicated to Ms Shepounov that he would like "an external developer to look at the code ASAP so I can take independent advice on what can be used and whether to continue with Heard or shift development"; 2. In his 13 April 2016 email (page 74 of the exhibit to Mr Thomas' first affidavit), Mr Thomas indicated that in the light of the options presented to him by Ms Shepounov that the plaintiff was "investigating options"; 3. Paragraph 46 of Mr Thomas' first affidavit indicates that he informed Ms Shepounov that he was waiting for two quotes to obtain legal advice; 4. In paragraph 46 of Mr Thomas' first affidavit he indicates that he told Ms Shepounov "not to do anything else for the time being". I accept this evidence. 1. In the light of the prior correspondence, did the email from Mr Thomas to Ms Shepounov dated 27 April 2016 (page 76 of the exhibit to Mr Thomas' first affidavit), constitute in law an acceptance of the repudiation by the defendant of the Contract with the effect that there was a valid termination of the Contract? 2. The email makes clear that 4mation Technologies "will be taking over development of Shopper Social". The use of the words "taking over" is in my view only consistent with an end to the defendant's contractual role. 3. Further, the email makes clear when read as a whole that 4mation Technologies will be undertaking the development of the platform to the exclusion of the defendant even though the defendant may be required to provide documents and information to assist in the handover. 4. In Cooper v Kinsella [2011] NSWCA 45, Hodgson JA (with whom Allsop P agreed) stated the following in relation to whether correspondence amounted to acceptance of repudiation: That question depends on what intention was manifested by the letters, considered objectively in the light of the circumstances known to the parties. Correspondence occurring immediately after the letters of 29 August 2005 could possibly have some relevance to this question, particularly by way of shedding some light on what were the circumstances known to the parties: at [53]. 1. See also Cooper at [70] per Sackville AJA citing the principles set out by Lord Steyn in Vitol SA v Norelf Ltd (1996) 3 All ER 193 at 200. 2. In my opinion, the email dated 27 April 2016 makes clear that the plaintiff accepted the repudiation of the Contract by the defendant and brought the Contract to an end thereby allowing 4mation Technologies to conclude the development work that was required in relation to the Shopper Social platform. In other words, it amounted to a communication which clearly and unequivocally conveyed to the defendant as the repudiating party that the plaintiff was treating the contract as at an end. As is clear, no particular form of words need be used to accept a repudiation of a contract and to bring a contract to an end: Vitol at 200, principle (2). 3. I also reject the defendant's submission in paragraph 156 of its written submissions. The first breach was the failure to deliver an operational application by 1 April 2016. The second breach was the clear indication that the operational application would be delayed for an extensive period and be at a much higher cost when it was clear to all that completion was urgently required. The two breaches were relevantly different. Damages under the Statement of Claim 1. The principle that applies in relation to the award of damages in contract is that the plaintiff is to be placed in the same position as if the contract had been performed: see Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 at 11-12. 2. In the present case the plaintiff seeks the following heads of damage: 1. $22,500 representing payment made under the Contract in consideration of the defendant developing the application – paragraph 7(a) of the Statement of Claim; 2. $24,297 said to represent the cost of fulfilling clients' subscription contracts in April and May 2016 in the absence of the Shopper Social application – paragraph 7(b) of the Statement of Claim; 3. Damages in the sum of approximately $80,737.50 plus GST on account of the additional cost of retaining a third party being 4mation Technologies to develop and design the application. 1. There is an issue whether the heads of damage claimed are too remote. The basic rule governing the law of remoteness of damage in contract was stated by Alderson B in Hadley v Baxendale (1854) 156 ER 145 at 151: Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. 1. There is also an issue whether the amounts claimed are reasonable in the light of the paucity of evidence as to alternative suppliers. 2. Mr Thomas gave evidence that the money that was incurred by the plaintiff in retaining Pureprofile Pty Ltd and TEG Rewards Pty Ltd would have been avoided if the Shopper Social platform had been finished on time. I accept that evidence despite the Contracts and quotes not being annexed to his affidavit (he said he did not retain the quotes). These costs appeared to have been incurred by the plaintiff as a result of seeking to provide the market research services which had been promised to Nestlé and Arnott's arising from the Shopper Social application from 1 April 2016. See paragraphs 55-62 of Mr Thomas' first affidavit. In my view these costs arise from the breach by the defendant of the Contract and are not too remote. They amount to permitted reliance loss: see Gates, above, at page 12. They do not on their face appear to be unreasonable. Further, Mr Thomas was placed in the difficult position of trying to provide promised services to his major clients where the Shopper Social application had not been completed on time. The defendant submits that these costs are not established or should be reduced by 75% due to a failure to mitigate: written submissions paragraphs 162-178. In my view, no unreasonable failure to mitigate has been established. Merely refunding the subscriptions as suggested by the defendant (written submissions paragraph 174), was not commercial where these were the plaintiff's important and large clients. Overall, I accept the evidence of Mr Thomas that these costs were reasonably incurred by the plaintiff in response to the difficult circumstances it was placed in. 3. In relation to the moneys paid to 4mation, the plaintiff claims that these moneys were paid to mitigate their damages under the Contract. 4. The defendant suggests that the amount was excessive and covered other services: written submissions paragraphs 180-195. As referred to above, in my view, the amounts paid appeared to relate to 4mation undertaking the same construction of the platform as the defendant had agreed to undertake. It should be noted that the Contract price of $49,500 under the Contract together with the additional costs of $25,000 to $30,000 referred to by Ms Shepounov in the telephone conversation on 12 April 2016 with Mr Thomas (referred to in paragraph 41 of Mr Thomas' first affidavit) is a similar amount to that charged by 4mation. The plaintiff relies on that matter as showing that the 4mation costs were reasonable. 5. I have carefully reviewed the defendant's written submissions on this point at paragraphs 180-195. I note there is no expert evidence on the issue. However, I accept the evidence of Mr Thomas at T62-63 (27/7/17). There seems to be some force in Mr Thomas' evidence that he was "scrambling to find someone that could take the project on" (T63.1 – 27/7/17). I also accept his evidence that he "pitched" the project to three different developers: T62.47 (27/7/17). The context was: (a) the contractually agreed date for an operational system was at the latest 1 April 2016; (b) an operational system was not produced by the defendant by that time; (c) Mr Thomas had made promises to major clients based on the Contract date; (d) extensive further delays were signalled by the defendant; (e) Mr Thomas had to decide what to do in those difficult circumstances; (f) he considered his options and decided to retain another developer on an urgent basis; (g) that develop was 4mation; (h) its final cost was similar to the contract price and the projected additional costs. 6. In those circumstances, one cannot be too critical of the plaintiff's actions. I find that the plaintiff took reasonable steps to mitigate its loss by retaining 4mation. See Mr Thomas' evidence at T64.20-69.36 (27/7/17). 7. If the Contract had been completed by the defendant then the plaintiff would have paid the total amount of $49,500 under the Contract. To put the plaintiff in the same position as if the Contract had been performed and taking into account the additional expenses incurred as a result of the breach, the following sums are reached: $49,500 (Contract price) - $24,750 (first two instalments paid) = $24, 750 - $25,087.41 (paid to Pureprofile and TEG Rewards) = $337.41 + $88,811.25 (4mation Technologies) = $89, 148.66 Total 1. The parties should review these calculations and add whatever interest is appropriate and bring in short minutes of order to reflect these reasons. Cross-claim 1. The remaining two instalments for April and May under the Contract (Thomas Exhibit page 13) have been taken into account in determining the damages payable by the defendant under the Statement of Claim. In that way, the defendant gets the benefit of them in calculating damages (defendant's submissions paragraphs 178 and 199). I therefore reject any claim for the remaining two payments. In any case, I would have rejected the claim for the two instalments as the Contract work was not completed by the defendant. In relation to the third claimed instalment for April 2016, I am also not satisfied on the evidence that the third instalment invoice was actually issued to the plaintiff. The contents of paragraph 62 of Mr Heard's affidavit raise real doubts as to whether the invoice was issued to the plaintiff: cf 28/07/17 - T32.8-.42. In the end, this issue has no practical significance as the defendant gets the benefit of the two remaining payments in calculating any loss. 2. In relation to the amounts claimed under the Amended Cross-Claim (as further amended on 11 August 2017), the following appears to be the position. The defendant/cross-claimant claims: 1. The sum of $13,612.50 for the third instalment under the payment schedule in the Contract – as stated above, this has been taken into account in assessing damages on the Statement of Claim and thus need not be further considered. In any case, I would have rejected it as discussed in the previous paragraph; 2. The sum of $5,500 for alleged outstanding invoice number INV-0698. There is no evidence supporting the claim in relation to this invoice. In the end, the defendant did not rely on this invoice: 28/07/17 - T66.4-.5; 3. The sum of $2,750 for alleged outstanding invoice INV-0727: defendant's written submissions paragraph 200. This is alleged to be for works requested of the defendant: see paragraph 8 of the Amended Cross-Claim; 28/07/17 – T37.26. The plaintiff/cross-defendant pleads that it is not obliged to pay this invoice because "Heard has not performed its obligations under the [Contract]": Defence to Amended Cross-Claim paragraph 9. 4. At page 80 to the exhibit to Mr Thomas' first affidavit is a copy of invoice INV-0727. The invoice is dated 28 April 2016 and states it is for: "Domain registration and transfer x 3 [referring to three shopper social internet addresses] / Collate and supply details and files"; 5. In an email dated 27 April 2016, Mr Thomas of the plaintiff had requested of Ms Shepounov that the defendant supply details and documents to the replacement developer 4mation Technologies so that company could expedite its work and "hit the ground running asap." The defendant alleges that the amount sought relates to performing this work. The 28 April 2016 email from Ms Shepounov (Thomas Exhibit page 77) states: "Please find attached the following invoices for payment…3. Domain registration x 3 plus transfer…($300) + Collate and supply files and information requested below ($2,200) = $2,500." The email also states "We understand that time is of the essence and therefore will provide the details and files requested below. However, before we can, the following invoices require payment. Once paid we will release the requested files." The evidence shows the invoice was not paid and the files were not provided by the defendant to 4mation: Thomas first affidavit paragraph 53. In relation to the domain registration, the plaintiff points to the Contract where it states an estimate of $500 plus GST per annum for "domain purchase and hosting". 1. Having regard to the above evidence I am not satisfied that the plaintiff agreed to the amounts claimed in invoice INV-0727. In relation to the domain transfer, there is no clear evidence of what this relates to or that it was agreed. In relation to the collation and supply of the files, first, they were never supplied to 4mation, and secondly, it does not seem that the plaintiff agreed to pay the sum claimed of $2,200 before any work was done. The invoice also does not set out how this sum was calculated. Taking into account all the evidence, I reject this claim. 2. Accordingly, the Amended Cross-claim is dismissed. 3. I make the following orders: 1. Judgment for the plaintiff on the Statement of Claim and the Amended Cross-Claim. The Amended Cross-Claim is dismissed. 2. The defendant is to pay the plaintiff's costs of the proceedings as agreed or assessed. 3. The parties have liberty to apply to vary order (2) above. 4. The parties are to bring in short minutes of order within 7 days setting out the damages to be awarded to the plaintiff calculated in accordance with these reasons including any claim for interest. 5. Exhibits to be returned after 28 days. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2017